I.

Judgments PRECLUSIVE EFFECTS OF JUDGMENT OVERVIEW Goal: ending litigation by according finality to judgments without forfeiting the opportunity for parties to pursue in a later suit aspects of the matter that they could not reasonably have litigated (or had valid reasons for not litigating) in the first suit. At common law: writ system, if you had chosen the wrong writ, you could do it again another. under

19th cent: formalism. Favored certainty over fairness. Viewed preclusion of relitigation of claims and issues as an inherent right coming from a judgment. The effect of these rules was not up for equitable dispensation or notions of fairness. 20th cent: Courts have moved away from absolute rules, and allowed in some policy and fairness considerations, they have also expanded some of the formal boundaries of the two doctrines. (eg: embraced transactional test for defining the same claim and have recast the strict mutuality requirement for CE). Crowded dockets have encouraged expanded preclusion doctrines. Res Judicata and Collateral Estoppel Res Judicata -- can refer to all the preclusion doctrines together, but usually refers to the prohibition on re-litigating a claim which has already been litigated and gone to judgment. Claim preclusion. Merger/bar: When a party wins, its claim is merged into the judgment, precluding further it. When you lose, you are barred from re-litigating the same claim.

Collateral Estoppel Issue preclusion. Applicable in situations not covered by RJ because the second action is not based on the same claim or cause of action. You cant re-litigate the same issue, even if the overall cause of action is new. (When RJ doesnt apply because, although the second suit is on the same claim or cause, the first suit was not decided on the merits, the doctrine of direct estoppel applies to preclude re-litigation of the issues that were actually decided. This is also issue preclusion.) RJ precludes re-litigation of the claim, regardless of what issues were actually litigated in the first suit. CE only precludes re-litigation of those issues that were actually litigated and necessarily determined.

Final Judgments

RJ and CE apply only to FINAL JUDGMENTS: a judgment which terminates the litigation on the merits and leaves nothing to be done but to enforce by execution what has been determined. What should be considered final is different sometimes for the purposes of appeal versus preclusion. (eg: a partial judgment, or one on liability but not damages, may be final enough for an appeal, but it might not be desirable to give it finality for preclusions since some aspects remain to be determined). There is no firm agreement from jurisdiction to jurisdiction on whether a judgment on appeal has preclusive affect (ie, the judgment in the lower court was final, but is being appealed, should that lower court judgment have preclusive affect). it makes little sense to accord conclusive effect to a determination that itself may be nullified through reversal on appeal; on the other hand, it may be a waste of effort to retry an issue simply because an appeal is pending in the case where the issue was originally determined. A. Res Judicata 1. Same claim or cause of action Manego v. Orleans Board of Trade, US Ct of Ap, 1st, 1985. Page 1117. Judge Bownes Facts: In 78/79, Manego applied to the OBOT for an entertainment and liquor license for a disco on a vacant lot which was near a rink. The bank owned the rink because of a foreclosure. The bank was concerned about alcohol, etc near kids place, increases in accidents in the parking lot, and general concerns about the disco in the area. Willard, VP of the bank, and manager of the rink was also the Pres of the OBOT (a group anyone could join for $15). The OBOT voted to oppose the disco. The board of Selectmen (two of the selectmen we also on the OBOT). Over 100 people came to the meeting to oppose the disco. A petition was also received, and of 11 letters to selectman, only 2 favored. Willard announced at meeting that OBOT opposed it. Manego was denied, he appealed and was denied. They did issue a building permit. The bank sued to stop it, then sold the rink, and withdrew the suit. Rink turned into roller rink and added adult sessions, still no liquor, their permits were approved. Manego sued the Board of Selectman, the Bank and Willard for discrimination based on his race, his state law claims were dismissed for failure to state a claim, and the on the others, Sum J was granted to s. Manego was given 90 days to come up with concrete, factual bases for his claim, but only came up with affidavits. This same court affirmed the appeal. Manego sued again, this time against the bank and the OBOT and Willard. This suit had two differences from the last suit. One was different (OBOT) and it alleged antitrust violations this time. W and the Bank moved for Sum J based on RJ (and that its conduct was protected under the 1st amendment in Noerr-Pennington doctrine (see 1120). OBOT also moved for Sum J under RJ and argued that there was no genuine issue of material fact concerning the conspiracy. Issue: 1. Does RJ apply to the Bank and Willard? 2. Does RJ apply to OBOT? Holding: 1. The court upheld the lower courts finding that this suit was barred by the last final judgment (summary judgment on the civil rights claim). They used the transactional approach to claim preclusion, finding that the facts forming the basis of Manegos claim here were the same as those from the earlier suit. The pointed out that most of their precedent has involved preclusive effect to other states, but that the idea was the same here. They found that they have impliedly adopted the Restatement second of Judgments concerning the scope of claim preclusion. RJ = a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action (p 1121). This bar is limited to cases arising out of the same cause of action or claim (transactional approach). Restatement

definition of transactional: 1. the claim extinguished includes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction ,or series of connected transactions, out of which the action arose. 2. what factual grouping constitutes a transaction ad what constitutes a series are to be considered pragmatically giving weight to such considerations as whether the facts are related in time, space, origin, or motivation, whether the form a convenient trial unit, and whether their trement as a unit conforms to the parties expectations of business understanding or usage. (1121, R 2nd of J 24). Manego argued that there were new s and new theories and new claims. Different legal theories does not mean that the transactions arent the same. The new defendant was discussed in last case, was under leadership of a from both cases and no new facts were alleged concerning that . He also argued that he hadnt alleged the stuff about the roller rink in the first one because he found out about it too late. TC said, through diligent efforts he could have found out. This court said, aside from the reasonable effort question, the question is whether the underlying facts of both transactions were the same or substantially similar. When the factual bases are essentially the same, they not only can be joined in one lawsuit, they have to be joined in one or are barred by RJ. They found the facts to be the same, therefore they were RJd in their entirety. 2. There is no RJ for the OBOT because they werent a party to the first suit, but this court upheld the lower courts granting of summary judgment for the s. N and Q 3. Since the elements of an antritrust cause of action are different from a civil rights cause, why arent these different claims? And how can RJ apply when the parties are different? I assume it is because they applied the transactional test, which looks at the underlying facts more than the claims themselves, but Im not sure if that is true/ it only applied to the parties that were the same, right? 5. Are the tests for same transaction or occurrence the same for Rule 13 (a) (compulsory counterclaim) and 15(c) (relation back)? In RJ (in Dillard v. Crenshaw) they talk about the same primary rights and duties and a common operative nucleus of fact. For 13a Wigglesworth applies same evidence standard, same transaction or occurrence, for 15c Swartz used same occurrence primary right/same duty. 6. An 11th circuit court found that where new events alleged occurred after the suit was filed and where the plaintiff didnt actually assert the claim, there is no RJ because you cant show that the TC actually adjudicated an upled and unasserted claim. Isnt this opposite of the transactional test? 8. Custody case where woman felt she was denied custody because of racial motivations (she was white but took them to a black church, etc). Her atty didnt object to racial comments, etc in trial. She tried to sue later, based on later Sup CT case, but was RJd from doing so because the court found that basically she was trying to relitigate the same custody issue and that the parties were different, but that the real parties in interest were the same. Is that ok? 9. Many older cases didnt use transactional test. Guy sued on contract claim, lost because of statute of frauds, and sued again for quantum meruit. Court found that he wasnt RJd from doing so because it involved different rights and wrongs, it noted that the elements of proof vary materially and that

the causes of action are different and that previous adjudication will not be impaired if the second suit should end differently. They could have used 15b. 10. When a holder of a series of notes, all of which are in default, sues only on one, there isnt a merger or bar on the others. Traditionally, even if all the notes were given as payment in a single commercial transaction, although the transactional test may change this. Separate leases for different time periods on the same piece of property pose the same separate liability issue. But for claims for amounts due on running accounts, installment payments such as rent, royalties under patent, claims affecting realty such as a continuing trespass, or claims for quantum meruit for occupancy of land, must be brought for all amounts due at the time of filing. 11. Decisions of administrative agencies are entitled to preclusive effect when the agency acted in a judicial capacity. 12. There is a doctrine of election of remedies, which says that suing for one remedy necessarily precludes the others, this is being limited or gotten rid of however, one court saying that it should be confined to cases where the plaintiff may be unjustly enriched or the defendant has actually been misled by the plaintiffs conduct or the result is otherwise inequitable or res judicata can be applied. Other action pending: Plaintiff has fined two or more suits on same cause of action, pending at same time (called repetitive suits). Defending multiple suits is an onerous burden. can raise othe action pending defense, seeking a dismissial if there is another action on same cause I the same court. Where it is in a different court, can seek to enjoin the other party from prosecuting the other suit, or seek an order from the other court staying the repetitive suit until completion of the first suit. On the other acting pending defense, the issue of the similarity would be resolved at the time of that hearing and if the second suit were dismissed or stayed, that would not bar the continued prosecution to the other. Therefore, other action pending can be less harsh to plaintiff than allowing one of the suit sto go to final judgment and bar the other. Should a be required to use other action pending as a prerequisite to raising the defense of RJ later. Application of RJ to s Defenses -- If a fails to raise defenses available to him, he cannot as a general rule thereafter use them to attack the judgment. (R2d Judgments 18(2)). Counter claims When a actually raises a counterclaim, ass aspects are subject to the rules of claim preclusion. EXCEPTION is the rare case when the cannot obtain full recovery on his counterclaim (court of limited jurisdiction, eg). In that case, merger should not apply to prevent a second suit for the amount not recoverable. If the doesnt raise a compulsory counterclaim (arising out of same transaction or occurrence as claim) that share common facts with a defense raised by , some concerns favor requiring the to raise it or lose it. This is in 13a. This compulsory counterclaim rule is codification of RJ as applied to counterclaims. Where there is no compulsory cc, and the alleges as a defense the same facts that would have supported a cc, he IS NOT precluded from maintaining a subsequent claim (rationale: where the jurisdiction chose not to make the cc compulsory, the should have the freedom to select its own forum for the cc). The may be CEd from re-litigating issues actually decided in first suit (Little v. Blue Goose).

EXCEPTION to not being precluded on non-compulsory counterclaims. Preclusion does apply when the relationship between the counterclaim and the plaintiffs claim is such that the successful prosecution of the second action would nullify the initial judgment or would impair rights established in the initial action. Kind of common law compulsory cc. If the new claim is a separate ground for recovery as well as a defense, the s failure to allege these facts as a defense and a counterclaim does not preclude him from relying on those facts in an action subsequently brought by him against plaintiff both precedent and policy require [however] that res judicata bar a counterclaim when its prosecution would nullify rights established by the prior action. N and Q 1. Should this exception apply to most cases where common facts support both a defense and a counterclaim? Is the key to the test merely whether later recovery on the counter claim would be inconsistent with the earlier judgment, or is something more required? Hypo?? 2. If the counterclaim couldnt be raised because of jurisdiction, it prob wont be given CE affect or RJ. 2. Exceptions to the Rule Against Splitting a Cause of Action RJ is often referred to as a rule enforcing the prohibition on splitting causes of action, that is, not suing on all the theories arising out of the matter being litigated and then attempting to raise them in a second suit. This if for finality in judgments and also efficient use of resources. Sometimes, there are good policy reasons for withholding an aspect of a claim, or in which due to procedural or substantive limitations, a party may be involuntarily forced to split his cause, or in which application of rule against splitting causes of action results in unfairness. Exceptions for these? Federated Dept Stores, Inc. v. Moitie, Sup Ct, Rehnquist, 1981, page 1132 Facts: Seven consumers in 76, filed class actions against stores for fixing retail prices. Moitie invoked only state antitrust law. It was removed on diversity grounds, and joined with six other suits, they were then all dismissed in their entirety. 5 of the 7 appealed, and won. Moitie and Brown didnt appeal. They filed new suits in Cali relying soley on Cali state law. removed to federal court and the district court refused to remand because they were in many respects identical to earlier complaints and therefore federal. It then dismissed them. 9th circuit reversed on policy grounds saying that it was against simple justice to apply RJ. Issue: Whether the C.AP. of the 9th circuit validly created an exception to the doctrine of res judicata when it held that RJ doesnt bar re-litigation of an unappealed adverse judgment where other plaintiffs in similar actions against common defendants successfully appealed the judgments against them. Holding: Nope. RJ does bar re-litigation of an unappealed adverse judgment, regardless of what happens to other similar plaintiffs. A final judgment on the merits of an action precludes the parties or their privies from re-litigating issues that were or could have been raised in that action. Nor are the res judicata consequences of a final, unappealed judgment on the merits altered by the fact that the judgment may have been wrong or rested on a legal principle subsequently overruled in another case. If the lower court wrongly decided the issue, but you dont appeal RJ. These things can be corrected only by direct review. Any other approach would undermine the certainty of judgments (the point of RJ in the first place). The court recognizes no equitable doctrine which countenances an exception to the finality of a partys failure to appeal merely because his rights are closely interwoven with those of another party. Here these people made calculated choice to forgo their appeals.

On the simple justice point: simple justice is achieved when a complex body of law developed over a period of years is evenhandedly applied. There is simply no principle of law or equity which sanctions the rejection by a federal court of the salutary principle of RJ. RJ is not a mere matter of practice or procedure inherited from a more technical time than ours. It is a rule of fundamental and substantial justice, of public policy and of private pace, which should be cordially regarded and enforced by the courts. Blackmun and Marshall concur: They just dont want to close the door on the possibility that there are times when RJ must give way to overriding concerns of public policy and simple justice. It may at times need an equitable tempering. a system of procedure is perverted from its proper function when it multiplies impediments to justice without the warrant of clear necessity. This just isnt such a case. This was a tactical choice. Brennan dissents: thought that this case wasnt properly removed and should be remanded. N and Q 1. I dont know the answers to all these procedural questions about Moitie, do I need to? 2. Some fairness concerns survive, Adams v. Pearson, prior judgment, obtained by fraud, was not given RJ effect. Look at rule 60b3. 3. Even fundamental constitutional rights are not to be given precedent over RJ. 4. Case where series of notes were not given RJ. Im confused about this because P won counterclaim which involved all of the notes, so they arent trying to apply one note decision, but all the notes to themselves. 5. case about woman in California in divorce proceedings where they didnt mention husbands military pension, she resued on it, Cali state court found that not mentioning it meant that it hadnt been decided, so no RJ. Is this too far a stretch? Hmm 6. Whoa danger with final judgments on appeal. First case decided, second case RJd according to first decision. First decision overruled in appeals, second decision (based on overturned first decision) upheld. Look at 60b5 and Re 2nd of J 16. 7. When there is first decision, then second court improperly doesnt decide that it is RJ and comes to different conclusion, which should be binding? Courts have ruled that it should be the second because it is last in time. P. 1140. 8. There is a jurisdictional competence exception to the rule against splitting causes of action if the P was unable to assert a particular claim or theory because of limitations on the subject matter jurisdiction of the courts. This exception will not arise simply because the plaintiff failed to assert all bases for jurisdiction in the first suit. The existence of an alternate hook on which federal court jurisdiction could have hung (here diversity), permitting state-law claims to be freely litigated in a federal forum, rendered the competency exception inapplicable the jurisdictional obstacle to joinder of all claims must be attributable to limitations on the first courts power to hear and decide a claim rather than to a partys contrivance. 3. On the Merits

On the merits doesnt mean what it used to and today cant really even be taken literally. Used to be literal (on the merits after trial or summary judgment, not on the merits dismissal for lack of jurisdiction or failure to join an indispensable party). Dismissal on a common law demurrerr or 12b6 failure to state a claim was viewed as a non-merits determination because it only tested sufficiency of the complaint (if new and additional facts are alleged that cure the defects in the original pleading, it is settled that the former judgment is not a bar whether or not the p had an opportunity to amend. Some courts deviated by apply RJ if the p was granted leave to amend but didnt). Today, the policies favoring requiring plaintiffs to plead all their claims, and thus not take up judicial time with repetitive suits, have won out, and may courts and the R 2d of Judgments 19, apply RJ to a dismissal for failure to state a claim. Rule 41b is statutory RJ: Rinehart v. Locke, US C AP, 7th, 1971, page 1141. Facts: Guy claimed that his arrest deprived him of rights secured by the Constitution. s asserted that the matter was RJ because of a dismissal of a complaint based on the same arrest. TC sustained that defense and dismissed. P appealed, s also raised defense that the SOL had run out. The first complaint was dismissed for failure to state a claim because the guy hadnt alleged lack of probably cause. (Plaintiff was not allowed to amend the complaint). P argues that this shouldnt be given RJ because the dismissal only established that he had no cause unless he was able to pleased and prove lack of probable cause. This is well supported by tradition. Issue: Should this failure to state a claim dismissal be considered to be on the merits and therefore given RJ affect? Holding: Yes. Arguably Rule 41b has changed the traditional rule where the earlier judgment was entered in a federal court. Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than for lack of jurisd, for improper venue, or failure to join a party under rule 19, operates as an adjudication on the merits. Costello (Sup Ct Case) implies that this list is suggestive not exhaustive and that failure to state a claim is not on the merits. However, in balance (because Costello sucks) an order of a dist court which dismisses a complaint for failure to state a claim, but which does not specify that the dismissal is without prejudice, is res judicata as to the then existing claim which is appears plaintiff was attempting to state. The P has to get the judge to say without prejudice, if he cant he can appeal. The traditional rule, before 41b was it is equally well settled, that, if the plaintiff fails on demurrer in his first action from the omission of an essential allegation in his declaration which is fully supplied in the second suit, the judgment in the first suit is no bar to the second, although the respective actions were instituted to enforce the same right; for the reason that the merits of the case, as disclosed in the second declaration, were not heard and decided in the first action N and Q 2. Costello attempt to get mobster, they were trying to revoke his citizenship. They had tried before but forgot to include an affidavit of good cause. The dismissal didnt say without prejudice. The said the earlier complaint must be construed as with prejudice, therefore. Brennan found that a dismissal for a failure to file the affidavit of good cause is a dismissal for lack of jurisdiction within the meaning of the exception under 41b. The court reasoned that the exception encompasses those dismissals which are based on the ps failure to comply with a precondition requisite to the Courts going forward to determine the merits of his claim. all of the dismissals enumerated in 41 b which operate as adjudications on the merits primarily involve situations in which the defendant must incur the inconvenience of preparing to meet the merits because there is no initial bar to the Courts reaching them. It is therefore logical that a dismissal on one of these grounds should, unless the Court

otherwise specifies, bar a subsequent action. They found that this situation did not present such a situation. The defendant didnt have to prepare a defense. This is bunk. They just did it to get him, and most courts have ignored in the way Rinehart did. 3. What is justification for applying RJ even though they were refused chance to amend? That is review-able on direct review only. If the court decided that justice did not require leave to amend, that should be appealed, or it stands. 4. R 2nd of Judgments 20(1) has three exceptions to a valid and final judgment having RJ effect: (a) when the judgment is one of dismissal for lack of jurisdiction, for improper venue, or for nonjoinder or misjoinder of parties or (b) when the P agrees to or elects a nonsuit (or voluntary dismissal) without prejudice or the court directs that the plaintiff be nonsuited (or that the action be otherwise dismissed) without prejudice or (c) when by statute or rule of court the judgment does not operates as a bar to another action on the same claim, or does not so operate unless the court specifies, and no such specification is made. 5. Sometimes preclusive affect is given to judgments based on grounds not applicable to the claim in the second suit (ie, SOL ran out in first suit, second suit raises because it has a count which keeps SOL from tolling, second suit still barred by RJ) (why not everything but the conspirarcy RJ?) Restatement 2nd of Judgments 20(2) takes opposite approach: a valid and final personal judgment for the defendant, which rests on the prematurity of the action or on the Ps failure to satisfy a precondition to suit, does not bar another action by the plaintiff instituted after the claim has matured, or the precondition has been satisfied, unless a second action is precluded by the operation of the substantive law. 6. Default judgments are considered to be on the merits (otherwise there would never be finality when the failed to appear). 7. In a civil rights action in NJ, a court found that dismissal for insufficient service was without prejudice under express terms of 4m. And that standing, even though not listed under 41b, is a nonmerits based dismissal for purposes of 41b because that has been interpreted to include threshold determinations concerning the courts abiity to proceed to the substantive merits. Is this based on Costello? 8. A denial of a motion for leave to amend the complaint has also been held to be a final judgment on the merits. Isnt that what was decided in Rinehart? 4. Preclusion in State-Federal Court Adjudications Marrese v. American Academy of Orthopaedic Surgeons Sup Ct, OConnor, 1985, page 1145 Facts: Two Il surgeons were denied membership in the Academy and they sued, claiming that the denial without a hearing violated their common law associational rights under Il law. They didnt assert state antitrust law. It was dismissed for failure to state a cause of action. They then sued in federal court claiming a violation of federal antitrust law. The C of AP held that the federal principles of claim preclusion barred the federal suit, noting that Il antitrust law was similar to federal antitrust law. Issue: Whether a state court judgment may have preclusive effect on federal antitrust claim that could not have been raised in the state proceeding?

Holding: The court of appeals was wrong when it suggested that federal courts should determine the preclusive effect of state court judgments, without looking at the law of that state. The preclusive effect of state judgments in federal law suits is determined by the full faith and credit statute, which says that state court judgments are valid in all courts by the rules of that state. Federal courts must refer the question to the preclusion law of the state in which the judgment was rendered. This is true even when the claim of the case is within exclusive federal jurisdiction. State court judgments have been held to bar subsequent action within exclusive fed jurisdiction. (Kremer). Only if the statute under which the exclusive federal jurisdiction arises directly claims an exception to 28 U.S.C. 1738 (the full faith and credit statute). She notes that claim preclusion generally does not apply where the plaintiff was unable to rely on a certain theory of the case or to seek a certain remedy because of the limitations on the subject matter jurisdiction of the courts. (R2ndJ26(1)(c)). If state preclusion law includes this requirement of prior jurisdictional competency, which is generally true, a state judgment will not have claim preclusive effect on a cause of action within the exclusive jurisdiction of the federal courts. Usually state court decisions dont bar exclusively federal questions from being heard in fed court so unless Illinois does say that, there is no problem. They reject a judicially created exception to 1738 that effectively holds as a matter of federal law that a plaintiff can bring state law claims initially in state court only at the cost of forgoing subsequent federal antitrust claims. Here the C Ap should have looked to Il law to see the effect of the state judgment. Only if state law indicates that a particular claim or issue would be barred is it necessary to determine if an exception to 1738 should apply. They dont decide the more general question: whether the concerns underlying a particular grant of exclusive jurisdiction justify a finding of an implied partial repeal of 1738. I DONT UNDERSTAND THIS CASE VERY WELL. Burger concurs agrees that preclusion is forbidden if state law clearly would not bar a later federal claim, but doesnt agree with the majorities interpretation of the jurisdictional competency requirement. When a plaintiff can make the same claim with the same remedy as in federal court, it doesnt matter if the plaintiff cant make the federal claim. Even if the state recognizes the jurisdictional competency requirement, that doesnt necessarily imply that the state court judgment has no preclusive effect Where state law is ambiguous, it would make sense to apply a federal rule granting RJ, as the fed courts have strong interest in making sure their resources are used wisely. He wants the test to be whether the plaintiff has had a full and fair opportunity to litigate the issue. He says the court will have to do this eventually, might as well do it now. Maybe it is that fed ct tried to apply rj, and oconnor is saying that they cant do that if the state court recognizes jurisdictional competency requirements, which would suggest that the state judgment has no preclusive effect as to exclusively federal questions. Burger is saying that you do have to look to state law, but where the claims are the same, you dont have to refuse RJ to state judgments. N and Q 1. There is this concern about how, under this decision, you have to file in fed court, or lose your state claim, because if state judgments are going to be given preclusive effect in fed court, even if it is an exclusive fed question, then you have to go to fed court first to preserve your right there. But that is only really true when there are identical claims, in which case it shouldnt really matter either do it all in state, or do it in fed with supplemental. Did posner just miss that? 2. another example of this fed/state problem.

3. In Matsushita court found that to find an exception to 1738 it would have to be an irreconcilable conflict between the statute granting exclusive federal jurisdiction and 1738. There would have to be clear Congressional intent to afford the P a day in court even if they already had one in state court doesnt making exclusive fed jurisdiction kind of do that. Doesnt it imply that only fed courts can make binding decisions about that. 4. State judgments may not always control the same issue elsewhere. Case where Michigan found that a guy couldnt testify against his old employer, but Missouri let him. CAP said they shouldnt have, and Sup CT said they could if they want, but disagreed as to why. Majority: Michigan lacks authority to control courts elsewhere by precluding them in actions brought by strangers to the MI litigation, from determining for themselves what witnesses are competent to testify and what evidence is relevant and admissible in their search for the truth. Scalia thinks full faith and credit doesnt compel Mo to follow a Mi injunction (maybe because equitable?). Kennedy expressed uneasiness about the breadth of the majoritys reasoning about interference with litigation pending in the forum. 5. (and last part of 4) two more instances of fed court giving preclusive effect to state judgment on exclusive fed claim. In one the parties were in privity. Why can states have cause of action if it is exclusively federal? What about supremacy clause? 6. Can fed courts give more preclusive effect than states would? No? 8. for federal jurisdiction, it looks like they can apply what they want, state and restatement. 9. Preclusion law in inter-jurisdictional cases is a big fucking mess. 10. Preclusive effect is usually given to foreign judgments, as long as it was under a system of jurisprudence likely to secure an impartial administration of justice between the citizens of its own country and those of other countries, and there is nothing to show either prejudice in the court, or in the system of laws under which it was sitting, or fraud in procuring the judgment. B. Issue Preclusion (Collateral Estoppel) 1. Same Issue Litigated Little v. Blue Goose Motor Coach Co. Sup Ct of Il, 1931, p. 1153. Facts: Little (deceased) was hit by a passenger bus owned by Blue Goose. BG sued Little for damage to its bus. Judgment was entered in favor of BG for like a hundred dollars. He appealed. The appeal was dismissed for want of prosecution. During the pendancy of that suit, Little field a suit in the city court to recover damages for personal injuries alleged to have been suffered by him in the collision. Little died and his executrix was substituted as plaintiff, she alleged gen negligence and willful negligence. Blue Goose raised defense of RJ which was rejected and judgment of $5,000 was entered for her. On appeal the court reversed, ruling that the Justice of the Peaces awarding of money to Blue Goose meant that it necessarily determined that the damage to the bus was Littles fault. Plaintiff argued that to have an adjudication be valid as a bar to subsequent action, it has to be the same in subject-matter and parties, and that here the subject matter isnt the same (now it is for wrongful death). Issue: Does a previous justice court judgment constitute an estoppel by verdict to a subsequent action involving the same parties, issues, and transaction?

Holding: Yes. The issue at which both these cases were bottomed as the same. Here the fact is forever settled between these parties and their privies. RJ arises when a material fact in any litigation has been determined in a former suit between the same parties or privies, where the fact was also material to the issue. It is an issue of fact whether Dr. Littles negligence was necessarily decided by the Justice of the Peace. The Appellate court (based on information presented at the city court) found that it was, and that question isnt open here. Dr. Little didnt appeal (all the way, at least) the Justice of the Peace decision and so that became final. So, Dr. Little couldnt recover here, so neither can his wife on his behalf. The cause of action is the wrongful act leading to the death, not the death itself, so it is still the same claim. Littles side argues that the second count is the charge of wanton and willful negligence and that, since contributory negligence isnt a bar to recovery on such actions, that Little was necessarily found partially negligent, doesnt mean that suit cant stand. Court reasoned that the finding of the Appellate Court that the collision was caused by the negligence of Dr. Little necessarily was a finding of fact on the willful negligence count as well as the general negligence count. Thus the rule that contributory negligence on the part of the plaintiff is not a defense to a charge of willful negligence does not apply. The question was settled. That the JP awarded judgement to Blue Goose means the bus drive was not guilty of willful neg. I dont understand, why make this point, why not say he waived it by not bringing it, if he didnt waive it, then it seems like he makes a good point? N and Q 1. Why did the issues determined by the JP judgment preclude the gross negligencec claim in the second suit? Would it be important to know that at the time this case was decided plaintiffs suing for negligence had to plead and prove freedom from contributory negligence? 2. JP had limited jurisdiction, was not a court of record, was subject to de novo appeal, and the claim was so small there was little incentive to argue it. Little incentive to argue it is a reason to worry about RJ, if they didnt appeal it because it was too small, should the be RJd from something much bigger? 3. If Dr. Little had won in the first court, he couldnt prevent BG from relitigating, necessarily. It would mean that the JP found either: Dr. Little not negligent, and Blue Goose negligent, or both negligent, or neither negligent. But, she could keep BG from relitigating, because it has been decided between them that BG cant recover, either because he was contributorily negligent, or because Dr. Little wasnt if either of those is true, he cant recover. Right? 5. Courts increasingly willing to grant CE effect to non full dress trials. This can be problematic because these decisions are more likely to be vague and less likely to be appealed. But some statute specifically call for de novo review for administrative proceedings 6. General rule is that arbitration is given res judicata and collateral estoppel effect, but it is complicated, see page. 1156 Hardy v. Johns Manville Sales Corporation, US C AP, 5th Circuit, 1982, p 1157 Facts: Law suit for asbestos related illnesses against several companies. The TC entered a collateral estoppel order that certain issues had been determined in plaintiffs favor by a judgment for unrelated plaintiffs against six of the manufacturers in a prior case (Borel). Appellants (companies) argued that Borel didnt necessarily decide specific issues, that the findings in those cases could have been based

on a number of specific grounds and that, as the verdict was general, there is no way to know which they decided. Issue: May collateral estoppel be applied when the fact finder based its decision on one of several possible bases? Holding: No, but not because the Borel court didnt find anything concrete. The issue in question is whether they found that some insulation products were unreasonably dangerous because of a failure to warn. This court found that, while they had a point, the Borel did necessarily decide that: The jury found that the unreasonably dangerous condition of the defendants products was the proximate cause of Borels injury. This necessarily included a finding that, had adequate warnings been provided, Borel would have chosen to avoid the danger. Nonetheless, this court found that Borle was ultimately ambiguous as to certain key issues and collateral estoppel is inappropriate where the prior judgment is ambivalent. There is no way to know when a duty to warn attaches, as far as the jury was concerned. And there is no way to know what failure in the duty to warn was key, was it the specificity? Or that it never got to the workers in the field? How do those apply here? As both this instruction and the ambiguities in the Borel verdict demonstrate, a determination that a particular product is so unreasonably hazardous as to require a warning of its dangers is not an absolute. The plaintiffs in this case were not necessarily exposed over the same period of time, they werent necessarily exposed to the same products, etc. We just know what the jury found, not why they found it and like stare decisis, collateral estoppel applies only to issues of fact or law necessarily decided by a prior court. N and Q 1. are there any reasons not to use special verdicts? 2. sometimes jury verdicts are the result of deals or negotiations to get certain jurors to do certain things should those be given collateral estoppel effect? How should we find out what the jury decided really and what if they disagree? 4. What were the issues in Borel that distinguished this case? 5. Basically, we need to think about, what would make them not applicable, why things would be different, how you know what they necessarily decided, etc Commissioner of Internal Revenue v. Sunnen, Supreme Court, 1948, page 1162. Facts: In 1928, Sunnen had licensed his corporation to use his patents in exchange for a royalty. In various years following, Sunnen assigned his interest in these agreements to his wife who reported this income on her income tax returns. In 1935, Sunnen prevailed in a tax court proceeding brought by the Commissioner of Internal Revenue, who had contended that the income was taxable to Sunnen himself. Later the exact same action was brought by the Commissioner against Sunnen on the same issue, except this time for royalties paid in 1937. Issue: Where two cases involve taxes in different taxable years, will collateral estoppel be confined to situations where the matter raised in the second suit is identical in all respects with that decided in the first proceeding and where the controlling facts and applicable legal rules remain unchanged? Holding: yup. Collateral estoppel will apply only for proceedings involving the same claim and the same tax year (in the tax field). Subsequent modifications of the significant facts on a change or development in the controlling legal principles may make that determination obsolete, or erroneous, at least for future years. It would be unfair to let one tax payer continue to benefit from an erroneous decision.

N and Q In Sunnen, they say that CE only as to those matters in the second proceeding which were actually presented and determined in the first suit. But it is really only if they were from the same year, right? 1. Issues of fact are precluded, not issues of law. A person who has litigated an issue, shouldnt be any less able to suggest that the court should overturn a decision. Once you find a fact, that just is and it cant be reopened. It is specific to that person, but the law changes, and one person shouldnt be held in time as far as the law goes when others can benefit from new laws. Hazard points out that there are a lot of reasons judges may be wrong about the facts, and that the law should be fixed, so maybe the opposite would make sense. 2. Sometimes it applies to mixed questions of law and fact (U.S. v Moser). a fact, question or right distinctly adjudged in the original action cannot be disputed in a subsequent action even though the determination was reached upon an erroneous view or by an erroneous application of the law. It is hard to distinguish between unmixed questions of law, and questions of law and fact. Modern cases and the R 2nd of Judgments allow preclusion to law and fact except when: 1. the result would place the party who won in a favored position in the general administration of law (Sunnen) 2. the first determination was not fully appealed as it was in the second suit (thus trying to avoid allowing repeat players, like the government from making every case a test case). Not sure I totally understand this 3. the two actions involve claims that are substantially unrelated 4. a new determination is warranted in order to take account of an intervening change in the applicable legal context or otherwise to avoid inequitable administration of the laws 5. the party against whom preclusion is sought had a significantly heavier burden of persuasion on the issue in the first suit than in the second. 3. Separable facts doctrine if the relevant facts in the two cases are separable, even though they be similar or identical, collateral estoppel does not govern the legal issues which recur in the second case .. This has been questioned. I dont really understand this. 4. The court was worried about a change in law being allowed to result in favoritism to some taxpayers creating vested rights in decisions that have become obsolete or erroneous with time. 5. usually courts will still allow RJ or CE even though the grounds on which the decision was based are subsequently overruled, but some make exceptions for con law. 6. EPA case, the Sup Ct limited the idea that preclusion should be limited to when the cases are identical in all respects. But this may just apply to situations between the same two parties. 7. In the 3rd Circuit, they ruled that nonmutual collateral estoppel could be used as to an unmixed question of law (RR tried to forum shop to avoid CE, even though facts were different, the claims were not substantially unrelated. The two cases involved the same application of the law. 2. Alternative Grounds for Decision: Halpern v. Schwarts, US Court of Appeals, 2d, 1970, page 1168

Facts: In bankruptcy court, Evelyn had three charges of bankruptcy against her. The District Court found she had committed all three acts and adjudged her to be bankrupt. This was affirmed on appeal. Then, the trustee moved to oppose her discharge from bankruptcy citing one of the three charges and moved for summary judgment based on the fact that the issue was RJ because of the earlier finding. Referee granted SJ. When the three charges were decided, there had to be an actual finding of intent to hinder or delay or defraud or the discharge shall be granted. Only one of the three charges that were decided before involved intent. Issue: When the prior judgment rested on several independent, alternative grounds, is that judgment conclusive as to the facts which were necessarily found in order to establish only one separate ground? Holding: Nope. The prior judgment will not foreclose reconsideration of the same issue if that issue was not necessary to the rendering of the prior judgment, and hence was incidental , collateral, or immaterial to that judgment. There are two reasons for this, both of which are present here: 1. the decision on an issue not essential to the prior judgment may not have been afforded the careful deliberation and analysis normally applied to essential issues, since a different disposition of the inessential issue would not affect the judgment. 2. The decision on an inessential issue in the prior judgment was not subject to the important safeguard as to its correctness, to wit: a contested review on appeal. It would be unwise to require a losing litigant to take appeal from alleged errors in one alternative ground simply to ward off the conclusive effect of collateral estoppel on a later discharge proceeding, when on appeal the court could affirm on one of the other alternative grounds. Even if they did appeal, the other party may not ardently defend that issue because they would point to one of the alternative other dispositive issues.This would go against the point of CE (at least one point, which is to mjinimize litigation and bring it to an end. We therefore hold that when a prior judgment adjudicating one a bankrupt rests on two or more independent alternative grounds, it is not conclusive as t issues in trial of objections to discharge which issues were necessarily found in order to establish only one of those grounds. the trap for the unwary created by the diverse rerequirements for adjudication and discharge makes it altogether too likely that error may be frozen or made permanent without a genuine adversary presentation and review of the essential issues of actual fraud this sutaiont is not controlled by the cases holding that decisions resting on alternative grounds are stare decises as to each independent ground. In stare decisis the questions of aw decided in each of the alternative grounds may be reconsidered when the issues again arise, and the rules may be modified or overturned. In the case of CE, the prior judgment precludes any reconsideration of the issues concluded. N and Q 2. Is the effect of the Halpern rule to deny issue preclusion to any judgment that is based upon alternative holdings? 3. Traditionally and still in a number of courts, two holdings would estop you on both counts. 4. Example of a case where the guy didnt appeal because one issue was readily remediable, and so collaterally estopping the other claim would just induce people to fully litigate each and every subject to avoid CE. 5. Related: there is a determination of whether an issue that was decided was sufficiently important in the first action that it was foreseeable that it might be subject to later litigation and preclusion. Hand tried to answer this by making a distinction between ultimate facts and evidentiary facts/mediate data Ultimate facts (those upon which combined occurrence the law raises the duty or the right in

question), and these would be precluded. Mediate data were those from whose existence may be rationally inferred the existence of one of the facts upon whose combined occurrernce the law raises the duty, or the right these would not be precluded I believe Redish says this is crap. However, the R of Judgments picked this up, although everyone hates it. They said that the danger in giving preclusive effect to subsidiary findings are that 1, such an effect will be given to determinations of issues that were not seriously contested and may have been barely relevant and 2 that such determinations may have wholly unforeseeable consequences. The R 2d of J, said that said that maybe what should be done, is to focus on whether the issue was actually recognized by the parties as important and by the trier as necessary to the first judgment. (so is it changed in the restatement or is this just their comment). 6. In Aetna Casualty they sued on a contract claim and on a fraud claim. They won on contract and lost on fraud. They tried to appeal fraud, because they had a stake in proving that too (to defeat a motion for discharge in bankruptcy). argued that P was not entitled to review of this decision because they had obtained all the relief that they could. Appellate court held that P could appeal anyway because the rejection of that claim affected the quality of the judgment because amount is not the sole measure of the relief to which a party may be entitled. The judgment may have different qualities and legal consequences dependent on the claim on which it is based. Im going to go out on a limb and say redish things this is better. C. Persons Bound by Judgment 1. Parties and Persons in Privity Traditional view of RJ and CE is that the judgment only binds parties and those in privity. The legal definition of a person in privity with another, is a person so identified with another that he represents the same legal right. The R 2 of J avoids the use of the term and instead describes varios kinds of relationships. The concept of privity is rooted in due process, a non-party should not be bound by a judgment unless he had an opportunity to be heard or was so identified with a party that his interests were represented. Benson and Ford, Inc. v. Wanda Petroleum Co, US C AP 5th, 1987, page 1174. Facts: There was a suit about antritrust stuff. Shelby (not in this case) alleged that Wanda had retaliated against them for refusing to join a price fixing conspiracy. B and F also sued alleging the same stuff. Wanda won the Shelby case on all grounds. F of B and F had been a witness at their trial. Wanda then moved for SJ against B and F, saying that they had the same lawyer and asserted the same claims arising from the same facts and should be precluded. The district court granted the motion. Issue: Is the identity of legal representation and witnesses sufficient to permit issue preclusion? Holding: Nope. People have a right to a full and fair opportunity to litigate an issue (Hardy). Therefore, a prior judgment should only be given conclusive effect against a party or a privy. There are three kinds of situations where preclusion will be granted because of privity. 1. a nonparty who has succeeded to a partys interest in property. 2. a nonparty who controlled the original suit, 3. nonparty whose interest were represented adequately by the party in the original suit. Wanda argued that Ford was 2 or 3. 2. control to have control of litigation requires that a person have effective choice as to the legal theories and proofs to be advanced in behalf of the party to the action. He must also have control over the opportunity to obtain review. (eg president and sole shareholder, parent corp and subsidiary, indemnitor). Even a nonparty who was heavily involved may remain free from preclusion. There is no evidence that B and F had any control here.

3. adequate representation this does not pertain to the competence of the previous litigation. Instead it refers to virtual representation, by which a nonparty may be bound because the party to the first suit is so closely aligned with this interests as to be his virtual representative. This requires more than a showing of parallel interests or the same atty. Example of this is the case on page 1176 about guy in car accident, sued once on his own behalf and again on his daughters, no preclusion. Ford and Shelby had no implied legal relationship. Here Ford does not seek to relitigate Shelbys rights, it seeks to litigate his own. By this, this doesnt mean that in order to claim adequate representation you have to be suing for someone elses rights, right? Wanda also argues that Ford should have had to join this case. But gen rule is that a nonparty is not obliged to seize an available opportunity to intervene. Wanda also argues that it is unfair because if Wanda had lost, Ford would have been able to use CE against them. Precedent is against this anyway, but it is a bad argument 1. ford has a right to be heard (d.p.), and Wanda already has been heard. 2. we are not at all certain that Ford could have used a Shelby verdict as offensive CE where a plaintiff could easily have joined in the earlier action , this is a rule they adopt. And 3. Wanda could have avoided this second lawsuit by moving to join parties. N and Q 1. R 2 of J provides that anyone who controls or substantially participates in the control of the presentation of the party. In a montana case, they found that the US was barred by a prior adjudication because they had paid for it, required that it be filed, reviewed and approved the complaint, directed the appeal and submitted a brief. The book notes that the atty really controls the case, so why should it matter, but if the point is that these people have to have their day in court, they have to have their chance to exercise control over the litigation, to be involved, etc, and the party in the 1st case shouldnt be able to waive that right for them. 2. The R 2 J says that a nonparty is bound when represented by a party because that party is: a the trustee of an estate or interest of which the person is a beneficiary b invested by the person with authority to represent him in an action c the executor, administrator, guardian, conservator, or similar fiduciary manager of an interest of which the person is a beneficiary d an official or agency invested by law with authority to represent the persons interests e the representative of a class of persons similarly situation, designated as such with the approval of the court of which the person is a member. 3. Courts sometimes use the concept of virtual representation in addition to the above. a person may be bound by a judgment even though not a party if one of the parties to the suit is so closely aligned with his interests as to be his virtual representative. This amorphous doctrine, has been used to bind subordinate governmental entities by the litigation results of higher ones. (complication aside: would it matter that the federal antitrust laws grant a claim to anyone injured by a violation of the act, in B and F v. Wanda I think the implication is that giving preclusive effect in one of these situations would go contrary to the statute which provides for a claim for each injured party). At least one case suggest that virtual representation should be limited to where there is an express or implied legal relationship in which parties to the first suit are accountable to non-parties who file subsequent suit raising identical issues. 4. Sometimes it is more broad though in a Voting Rights Act case the court said that a wider view of virtual representation depends upon a special relationship between the parties justifying preclusion, but acknowledged that there is no clear test for the applicability of the doctrine. Identity of interest

between the current and former parties is necessary, but other factors such as participation in the earlier litigation apparent acquiescence or deliberate attempts to avoid the effect of the prior litigation are needed as well. especially useful in public rights cases where a plaintiff victory is likely to benefit the nonparties without their participation, which would deter intervention (if they do litigate however, thats it, it doesnt matter if they do a sucky job, others are bound by it bunk). 6. There is some concern that virtual representation my have negative implications for the right to intervene. There is a case where a guy who tried to intervene (because his rights were so closely interrelated with P that he would be bound by RJ otherwise, so he should be allowed to try to control the legislation since he would effectively been deemed to have), the court said that if he was so closely related that his rights had adequate representation. Sucks. 7. some guy says that the rational for binding represented persons are supported by either consent or necessity (of going forward with litigation). 8. There are times when the law prescribes special rules of preclusion. Successors in interest in property, survival suits when the first person already won for their injury, indemnity stuff, partners on behalf of partnership. 9. The whole they might not be able to use offensive collateral estoppel because they passed up an opportunity to join thing has weird implications for Rule 19 necessary parties. Does it make everyone a necessary party? Look at rule 19 In an affirmative action type suit, the Sup Ct held that people could not be required to intervene to protect their rights does that mean that they cant be kept from using offensive collateral estoppel because they didnt join, or just that they cant be kept from suing because they didnt? In response to this suit, the civil rights act insulated employment practices implementing a court judgment from suit by people who either knew of the suit and how their interests could be affected, or who were adequately represented. Sometimes courts allow intervention of such parties, but they arent allowed to bring witnesses, etc. should they be precluded by the judgment even though they couldnt act as full parties? 2. Mutuality of Estoppel Mutuality of estoppel rested on the principle that a person should not benefit from collateral estoppel unless he would also have been bound by the prior judgment. This was viewed as elementary aspect of fairness under due process, and a necessary limit on the scope of an in personam judgment. Traditionally there has been an exception to this rule in indemnity actions stuff, page 1183 Traynor wrote the big famous opinion on this (Bernhard v. Bank of America), while due process of law forbids the assertion of a plea of res judicata against a party unless he was a party or in privity with a party, there is no compelling reason for requiring that the party asserting the plea of res judicata must have been a party or in privity with a party, to the earlier litigation.). Sup ct in Blonder-Tongue, abandoned mutuality, at least for defensive use of issue preclusion by a person not a party to the first suit against a defendant who was a party to the first suit. a judgment would not preclude a losing party from relitigating an issue if he could demonstrate that the first action failed to allow him a fair opportunity proceduraly, substantively, and

evidentially to pursue his claim. (here it was defensive use because it was against a repeat plantiff who had lost the same claim against a different -- is there any difference that remains between defensive and offensive use of CE seems like plaintiff it is harder to use against because ) Parklane Hosiery Co. v. Shore, Sup Ct, 1979 Stewart Facts: Guy (shore) sued PHC for fraudulent proxy statement (stock holders derivative action), seeking damages, etc. SEC filed equity suit for injunction. The DC found that it was false and the court of appeals affirmed. Shore moved for partial summary judgment against PHC saying that they wre CE from relitigating the issues that had been resolved there. The district court said that such an application of CE would deny them their right to a jury trial. The C AP reversed, holding that a party who has had issues of fact determined against him after a full and fair opportunity to litigate in a nonjury trial is CE from obtaining a subsequent jury trial of these same issues of fact. (could he have moved to stay the equity one to have a jury verdict first?) Issue: May a party who has had issues of fact adjudicated adversely to it in an equitable action may be collaterally estopped from relitigating the same issues before a jury in a subsequent legal action brought against it by a new party? Holding: Yup. 1. First they have to decide if a party can be precluded from relitigating facts resolved adversely to them in a prior equitable proceeding with another party under the general law of collateral estoppel. May a party who was not a party to a prior judgment nevertheless use that judgment offensively to prevent a from relitigating issues resolved in an earlier proceeding. CE has two goals protect litigants from burden of relitigating an identical issue with the same party or privy and promoting judicial economy by preventing needless litigation. Mutuality was based on some idea that it is unfair to allow a party to use a prior judgment when he himself would not be so bound. Mutuality has been long criticized for failing to recognize the difference between a party who has never litigated an issue and one who has fully litigated and lost. But this was gotten rid of. This case made offensive as well as defensive use of CE ok. Even though there are differences (like defensive promotes economy (join as many s as possible), offensive doesnt (promotes wait and see attitude)). Also, there may be not enough incentive in the first suit for the to make a big deal out of it. To deal with these probs, Sup Ct decided to allow offensive collateral estoppel but allow wide discretion to the TC to determine where it should be applied the general rule should be that in cases where a plaintiff could easily have joined in the earlier action or where, either for the reasons discussed above or for other reasons, the application of offensive estoppel would be unfair to a , a trial judge should not allow the use of OCE. Here none of these things are present. They probably couldnt have joined the SEC action, and they had every incentive to litigate it well because it was very serious ramifications for them. The court then turned to 2. whether the use of offensive collateral estoppel in this case would violate the petitioners 7th A right to a jury trial. They pointed out that CE applies in equity and at law, and that there is no reason that the meaning of the 7th should depend on whether mutuality of parties is present and thus rejected the argument. Rehnquist dissents He actually says that in 1791 they would have a right to jury trial because CE was only permitted where the parties in the first action were identical mutuality is later doctrine (but anyway, it was a derivative suit, so it would have been in equity anyway). He says that it is the same as saying that a party who could have brought a suit in equity at 1791, cant have a jury trial it is stupid. Page 1189. Interesting part is about how he thinks it is unfair to give CE to a party when the issues were decided in equity because they should be able to have a jury (could they have stayed it.)

He also says that they could have a jury potentially to decide if they were actually injured, so it doesnt promote judicial economy .. but it does, because having contradictory precedents not so good. N and Q 1. this duty to join crap what about if they are in another state? 3. Wait and see if they have a reasonable reason for waiting like waiting for injuries to play out, eg, then the wait and see stuff shouldnt be a bar. 4. With these wait and see people, what do you do in the case of a third plantiff against the same . How do you know which judgment to enforce? 5. How do you judge when a party has had sufficient cause to really litigate an issue (ie they didnt know that it would come back to bite them in the ass if they didnt take it seriously in the first place). 7. I guess in answer to my number 4 question, they dont really know. Sometimes they will figure out which one was a test case, or they can refuse to preclude because there were inconsistent judgments. 8. Courts are reluctant to deny issue preclusion on grounds of inadequate procedural opportunity when there was a reasonable opportunity for discovery and trial in the prior forum. 9. some people will settle in exchange for vacated judgment to avoid preclusion. 10. preclusive effect may be given to guilty pleas. 11. where judge erroneously denied jury trial, his findings in a bench trial will not be given preclusive effect. 12. again with the not granting CE, then what judgment do you enfoce? 3. Collateral Estoppel Against the Government United States v. Mendoza, Sup Ct, 1984 Rehnquist Facts: Mendoza, a Philippine national, wanted to become a US citizen under certain statute, he was denied and the Government contended that it didnt apply to him. Mendoza appealed saying that a prior successful action by individuals similarly situated precludes them from relitigating. The court of appeals ordered Mendoza naturalized. Issue: May nonmutual offensive use of collateral estoppel be had against the federal government Holding: No. The ct has long recognized that it is not in a position identical to that of aprivate litigant, both because of breadth of government litigation and because of the nature of the case. The Govt is party more suits than anyone else. A lot of these cases involve important public questions. To allow nonmutual collateral estoppel would thwart the development of important questions by freezing the first final decision. The Sup Ct would have to hear everything. The C AP recognized that, but found that here, there was no crucial need for a redeterminiation. But we cant go by such a vague standard it leaves the government at sea because it can not possibly anticipate, in determining whether or not to appeal an adverse decision, whether a court will bar relitigation of an issue in a later case.

The government is just different. It is better to allow thorough development of legal doctrines. The government may be estopped from relitigating the same question if the two parties are the same, because the concerns are for the most part inapplicable to situations where mutuality exists. N and Q 1. I guess there is some discussion that Mendoza is too blunt and has messed up issues in state courts where they were thought settled. Someone urges a presumption against, rather than categorical ban on, estoppel against state governments. 4. Some other person argues that the government should be more subject to preclusion because of it size and power. The way it is under Mendoza, the government can consciously refuse to follow judicial decisions holding its conduct illegal except with respect to a litigant who has already litigated. This is called nonacquiescence. 5. also, departments are pretty separate, when one agency litigates an issue, maybe it is unfair to bind other depts. At same time, seems like privity. II. Multi-Party Actions 1. Joinder of Parties: Rule 20 FRCP; Rule 18, FRCP Rule 20 Permissive Joinder of Parties a. Permissive Joinder My recap: Anyone may join as a plaintiff if they are asserting any right to relief (jointly, severally, or in the alternative) in respect of/arising out of the same transaction, occurrence, or series of transactions or occurrences and if a question of law or fact common to all these people will arise in the action. Anyone can be joined as a if there is a right to relief in respect or arising out of the same transaction, occurrence, or series of transactions or occurense asserted against them (jointly, severally, or in the alternative) and if any question of law or fact common to all s will arise in the action. b. Separate Trials A court may make orders to prevent a party from being embarrassed, delayed, or put to expense by the inclusion of a party against whom the party asserts no claim and who asserts no claim against the party. The court may order separate trials or make orders to prevent delay or prejudice. Who do they mean by party here? Rule 18 Joinder of Claims and Remedies a. Joinder of Claims A party who asserts a claim to relief asw an original claim, counterclaim, corss-claim, or third-party claim, may join (either as independent or alternate claims) as many claims (legal, equitable or maritime) as that first party has against an opposing party. b. Joinder of Remedies; Fraudulent Conveyances When a claim is heretofore cognizable only after another claims has been prosecuted to a conclusion (ie, I think, whenever a claim only stands after a threshold claim has come to a conclusion), the second claim can be joined in the action for the first, but the court shall give relief in that second claim only in accordance with the relative substantive rights of the parties. (ie, I think, you only get money in the second question if the first one was decided in such a way as to give rise to the second, so the rights of the second party arent trampled by your having joined the claims). In particular, a P can claim money and a setting aside of a conveyance fraudulent as to that plaintiff without having first obtained a judgment establishing the claim for money (can claim two remedies, even where the second is dependent on the first, before you decide the first). A. Joinder of Claims -- Rule 18

At common law, plaintiff was usually not allowed to join different claims against the same unless both claims involved the same form of action. This common law thing is a good example of rigid formalism. 18a, in contrast, is completely permissive as to joinder. The claims need not even be related why require multiple law suits when they are already in court together. Stuff may not actually be tried together, however. Claims of fairness or convenience justifies separate treatment. Under rule 42b, a court can sever unrelated claims and make separate trials when it would be in furtherance of convenience or to avoid prejudice, or when separate trials would be conducive to expedition and economy. IF YOU DONT JOIN A CLAIM< YOU DONT WAIVE IT< RIGHT? B. Permissive Joinder of Parties Rule 20 Again, this was difficult at common law. Multiple plaintiffs could join only if they had joint interest. Join interest meant where they were joint promises on the same obligation or instrument, partners at the time of a contract, or joint owners of property that was allegedly injured by . s had to be joined if they were joint obligors, but not allowed to join if they were several obligors. The plaintiff could chose how to sue them, though. The nature of the rights or obligations is less important today. It is harder to join parties than claims, see rule 19. 20a allows joinder of multiple persons as parties if they assert any right to relief jointly, severally, or in the alternative (or such right is asserted against them) which comes from the same transaction and if the question of law or fact common to all the persons will come up in this law suit. Kedra v. City of Philadelphia, US DC, E D of Penn, 1978 Facts: Kedra (P) and her children filed a civil rights action against the City of Philly (D), stemming from an alleged series of incidents constituting police brutality. The incidents involved various individuals over a 15 month period. Several s contend that the joinder is improper under rule 20a because ps claims to not come from the same transaction, occurrence because they cover almost 15 months. Issue: Is the mere fact that a series of claims cover a long period of time enough to defeat a motion to join (or dismiss for improper joinder). Holding: Nope. Joinder is liberal. The unification of claims is more convenient and less expensive and time-consuming for the parties and the court. 20a has been interpreted to permit all reasonably related claims for relief by or against different parties to be tried in a single proceeding. Absolute identity of all events is unnecessary. These events are reasonably related. That they were related over a span of time in no way attenuates the factual relationship among all of these events. There is the question of whether joining all these together will prejudice some of the s. But that will be decided after discovery. Insolia v. Philip Morris, Inc, US DC, E D of WI, 1999 Facts: Civil action for money damages. Three former smokers and their spouses against major cigarette manufacturers and two tobacco industry trade organizations. They have already denied class. The s want to sever the claims of the three plaintiffs into separate actions pursuant to rule 21. The s claim improper joinder under 20 because they do not arise from the same transaction or series of

transactions and because they do not share a common question of fact or law. The complaints alleged fraud and civil conspiracy, to win, they had to show that they relied on statements by the s that were false. The plaintiffs class action was denied because common grounds did not predominate as is required by rule 23b2. Issue: Do a group of smokers who all smoked different cigarettes, quit for different reasons, and who are different ages have a claim arising out of the same transactions or series of transactions enough to satisfy rule 20? Holding: Nope. The only thing holding these together is the allegation of an industry wide conspiracy, but this theory doesnt hold up on its terms, much less under the weight of the individual issues associated with each plaintiff. The class would have covered 30 years, one of the plaintiffs had smoked for twenty years before the alleged scheme. There are medical causation questions. The practical questions here would not serve rule 20, as it would not be more efficient. This covers decades. it is unlikely that a jury could keep track of which plaintiff smoked which brand and for how long while also retaining a coherent grasp of the minutiae associated with addiction, medical causation and legal causation. Judicial resources would be wasted trying to get the jury to understand. There would be prejudice, cats and dogs sleeping together. The trial plan proposed by the Ps fails to address this concern/makes it worse (if you can remediate it with a good plan, is it ok?). N and Q 1. same transaction or occurrence language is the same as in rule 13a, 15c. The test for applying the standard differs in those two rules according to the policy they serve: 13 looks to whether the matters would make a convenient trial package. 15 looks to whether there was adequate notice at the time of filing so that the can be said to have been aware that the suit included the amended matters. Which is this more like? 13 4. Discuss phased trials and juries. 5. Court upheld joinder of race discrimination claims by ten different employees from different divisions of Gen Motors because of their logical relationship and the company-wide policy of discrimination. Another case permitted joinder of claims against six county registrars who allegedly acted as party of a state-wide system to discriminate. These two situations made a convenient, efficient, and economical trial package because the same evidence could be used to show a common discriminatory policy. 6. If parties are improperly joined, they are just dropped or added, the case isnt dismissed. 7. a. y, b. n, c. n right? Rule 19 Joinder of Persons Needed for Just Adjudication a. Persons to be joined if feasible. A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1). In the persons absence complete relief cannot be accorded among those parties already in interest or (2). The person claims an interest relating to the subject and is so situated that the having the trial without the person may (i. impair or implete as a practical matter the persons ability to protect that interest or ii. Leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest.

If the person hasnt been joined, the court will order it. If they refuse, they can be made a defendant or an involuntary plaintiff. If that party objects to venue and that party would render the venue improper they should be dismissed. a. plain language Bob shall be joined if he is subject to process and wont screw up jurisdiction (diversity, I assume)if: 1. the parties already in the suit cant get complete relief without him or 2. his situation is such that he would be screwed with regards to the interest in question (either by making it so he cant protect the interest, or if it would leave any of the other parties open to substantial risk of double, multiple or otherwise inconsistent obligations by reason of the claimed interest) If Bob hasnt been joined, the court will order it, if he refuses, he can be made a defendant or involuntary plaintiff (if the person should join as a plaintiff but refuses to do so, the person may be made a defendant, or, in a proper case, an involuntary plaintiff). If Bob objects to venue and he would render venue improper than he should be dismissed. b. Determination by Court Whenever Joinder Not Feasible. If Bob cant be made a party, the court will decide if in equity and good conscience the case should proceed or if it should be dismissed because he is indispensable. To decide this they should consider: 1. to what extent a judgment rendered without Bob would be prejudicial to Bob or the other parties. 2. the extent to which, such prejudice can be alleviated or avoided. 3. if the judgment rendered will be adequate without Bob involved 4. whether the plaintiff will have adequate remedy if the action is dismissed for non joinder. Ie, I think, if Bob doesnt join and the action is dismissed, is the plaintiff screwed? Questions: what is the difference between 1 and 3. c. Pleadings asserting a claim for relief shall state the names of anyone described in 19a1-2 and why they arent joined. d. This is subject to the provisions of rule 23. D. Compulsory Joinder of Parties Rule 19 looks at question of whether certain persons not joined as parties have sufficient interest in the suit that they must be joined and whether, if they cannot be joined the suit will be allowed to proceed without them or must be dismissed. Hazard had three rules. 1. all persons who are interested in a controversy are necessary to a suit on that controversy so that a complete disposition could be made. 2. joinder of necessary parties is excused when it is impossible, impractical, or involves undue complications, 3. a person who is not a party, unless represented by one who is a party, is not bound by a decree. (but what about that CE case where the guy tried to join because he didnt want to be precluded and they said that he was adequately represented.) This is where the indispensable party was invented. The idea was that the court should do complete justice or none at all. There was a fallacy here that just because a court does not have jurisdiction over an absentee, it cannot act with respect to those before it. ?? American procedural law has embraced this fallacy by categorizing parties as necessary and indispensable based on the nature of their rights (common, joint, or united in interest). And applying these rules rigidly. Finally, rule 19 made the possession of a join interest the dividing line between permissive and compulsory joinder, and without providing guidelines, whent on to

state that an action could not proceed if persons with joint interests were no joined unless they were not indispensable. This was altered in 1966. NOW: 19a, describes those persons who are needed for just adjudication and provides that they will be joined if feasible. If someone who qualifies for (a) cant be joined (he would destroy diversity, has insufficient contacts with the forum to permit personal jurisdiction, or venue would be improper), then you have to analyze four factors to decide if it is doable. Under the new 19, a necessary, b indispensable, but these terms dont carry the exact meaning they used to. 19 is pragmatic and functional, this often requires a case by case adjudication.

Janney Montgomery Scott, Inc, v. Shepard Niles, Inc. US C AP, 3rd Cir, 1993 Facts: Janney had a deal with Underwood, they sued Shepard Niles for breach of contract, but they didnt join Underwood (Underwood is the parent corporation). SN filed a 12c motion for failure to join an indispensable party. The DC granted it, meaning that it found that Underwood was both a necessary party (19a) and an indispensable party under 19b. Underwood would destroy diversity jurisdiction. Issue: Whether the district court could give complete relief to the parties before it without prejudice to them or the absent person (Underwood) in a breach of contract action against only one of the two coobligors that might have been liable to Janney, the obligee on the contract. Holding: Yes. They concluded that Underwood will not be prejudiced and neither Janney nor Shepard Niles will be subjected to duplicative or inconsistent judgments and therefore Underwood is not a necessary party. Normally 19 rulings are reviewed under an abuse of discretion standard, but here de novo (for weird reasons having to do with CE). So, a court must first determine if a party should be joined if feasible. Necessary means that their joinder is compulsory if feasible. If a person is necessary under 19a1 or 19a2, then they are necessary. 19a1: can the court grant complete relief to the parties in the action? Yes. The agreement can be construed (and should be seen in the light most favorable to the non-moving party) to impose joint and several liability (which I think means that complete recovery can be recovered with just one of them look up the defs). 19a2i: would this litigation between the current parties impair or impede the absent partys ability to protect its interest? The lower court found that this case would set persuasive precedent for a case against Underwood. Stupid, stare decisis alone isnt enough. If issue or claim preclusion could be invoked that would qualify, but SN hasnt shown how that would be true here. That it could be raised by itself is not enough. It wouldnt probably apply because they arent the same person and they dont have the same interest in the case. It is premature at this point to decide whether the absent party is in privity for purpose of determining preclusive effect of lawsuit given highly factual nature of privity analysis. Also, Underwood could have sought to intervene. So, they arent necessary under 19a2i. 19a2ii would failure to join Underwood expose SN to substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest? That SN may be found liable for the whole claim, because Underwood isnt there. This, however, is not what is meant by double liability. (double liability doesnt mean covering more than your share of a claim). That they may bear the whole loss, is not double liability, it is the common result of joint and several liability and should not be equated with prejudice. That is what j and s l means. SN can implead Underwood if they want. (a s right to contribution or indemnity from an absent non-diverse party

does not render that absentee indispensable pursuant to Rule 19. A defendants potential loss of its right to contribution from an absent party did not subject it to multiple liability within the meaning of 19(in case I hadnt said it enough times). So, Underwood is not an necessary party under 19a1, 19a2i, or 19a2ii, and therefore also cant be indispensable. N and Q 2. Is there a general rule that co-obligors in a contract suit are not necessary parties, what about Marra? 3. other courts have found that the persuasive effect of a ruling could adversely affect the absent party so as to make it a necessary party how is this reconciled with Janney? 4. as a practical matter disposition of the action in the nonpartys absence would impair or impede the nonpartys ability to protect its interest this indicates that even when not bound by preclusion law, the judgment may still have the practical effect of impeding its ability. Gives some equity examples. 5. The motion to dismiss for failure to join a necessary party is invoked by a , not the absent party And what if wanted another plaintiff joined so that they dont have to deal with it twice 6. Figuring out what is meant by rick of incurring inconsistent obligations under 19a2ii has troubled courts. In a case from note 3, the court rejected two things. The risk that a party in one suit could be subjected to multiple litigation is not enough, (it says obligations, not litigation) ( so a bust company sued by one of 50 passengers injured in the same accident, would be subject only to the risk of mjultiple litigation if others are not joined, that there might be future different outcomes is not enough to impose multiple obligations and doesnt make the other 49 people necessary parties. They also got rid of a restrictive definition therefore it isnt limited to conflicting obligations involving the same res. Inconsistent obligations can arise from double or otherwise inconsistent liability and is not limited to one res. I dont understand the case on page 249 here and why it isnt a perfect example of inconsistent obligations, what would an example be? 7. SN could have impled Underwood but would that destroy diversity, no because of supplemental so, should you then not join all parties and file to join them under supplemental later? And, if it would destroy diversity, then you have to dismiss the suit, if they are indispensable, so that should be the same for impleader, right? Rule 19 says that a necessary (but not indispensable) party doesnt have to be joined if it would destroy diversity, but what about supplemental? 8. Technically labels of parties (joint fort feasor, etc) dont matter anymore under rule 19, but courts still use them sometimes. 9. Rule 20 indicates that there is a strong preference for efficient use of the courts through joinder of all parties involved, should that bear on the interpretation of rule 19? And the Sup cat has noted that a factor to consider under 19b when a necessary party cant be joined is the interest of the courts and the public in complete, consistent, and efficient settlement of controversies. The court has reisisted an effort to extend such considerations to identify necessary parties under 19a it has long been the rule

that it is not necessary for all joint tortfeasors to be named as s in a single lawsuit. Nothing gin the 1966 amendment to rule 19 changed that. 10. Sometimes a party may be indispensable even if he doesnt have a legal interest in the action, if he may be affected by it here a sublessee had no right sunder the primary lease, but had rights under the sublease and these rights related to the subject matter of the action. The Rule 19b determination whether to proceed or dismiss. If a party is necessary, that means they have to be joined if they can. If they are only necessary, and they cant be joined, than it is ok not to. If they are indispensable, and they cant be joined, then dismiss. In Underwood, had he been necessary, was there no way to get him in supplemental? 19b is a second best determination if necessary parties cant be joined cause of subject matter, venue, or personal jurisdiction, should the court proceed? The four factors of 19b are not exclusive of the factors in 19a, and there is some overlap. Eg 19a, would interests be impaired, would there be inconsistent obligations: these indicate 19b a judgment in a persons absence might be prejudicial. The second factor under 19b looks at the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided. -- gave example of a place where prejudice was claimed to absent ( a court could have refused to order immediate payment on judgments pending completion of other suits, so that they wouldnt exhaust an insurance payment. (here the plaintiffs agreed to limit their claims to the amount of the policy). The fourth factor under 19b requires a court to consider whether the plaintiff will have an adequate remedy if this suit is dismissed. this would lead to filing in another court (state court, maybe) where all parties could be together. Maybe courts should just do a forum non conveniens thing instead of dismissing under 19b? can they do that? 4. 1966 Advisory Committee Note, Rule 19 (FRCP Pamphlet, pp. 253-259) Rule 14 Third-Party Practice a. When a may bring in a Third Party: Any time after an action starts, a defending party (as a third party plaintiff -- Sarah) may serve a summons and complaint to be served upon a party who is not a party to the action who is or may be liable to the third party plaintiff (Sarah) for all or part of the plaintiffs claim against Sarah. (any time, the , can bring in Bob when Bob isnt a party to the action and could owe Sarah for all or part of the plaintiffs claim against her.) Sarah (3rd pty plntf) doesnt need to get leave to make the service if it is not later than 10 days after original answer. After 10 days, Sarah must obtain leave on motion upon notice to all parties to the action Bob (3rd party ) shall make any defenses to Sarahs claim as provided in 12 and ocunterclaims against Sarah or other 3rd party s as provided in Rule 13. Bob may assert against the P any defenses which Sarah has to the plaintiffs claim. Bob may also assert any claim against the plaintiff arising out of this same transaction or occurrence. The plaintiff may assert any claim against Bob arising out of the same transaction or occurrence. Same crap about defenses. Any party can move to give Bob the boot severance or separate trial. Bob can bring in another third party defendant. And some admiralty stuff.

b. When Plaintiff may bring in a Third Party: When a counterclaim is brought against the Plaintiff, she can bring in a third party defendant, like a defendant would be able to. c. Admiralty stuff E. Impleader (Rule 14) Impleader has its roots in the common law practice where a person whose title to land was challenged could vouch in the grantor of the land who had warranted the title. But it is much broader now. It refers to the right of a to bring in a new party who may be liable for plaintiffs claim against it, under what we now call third party practice.

Clark v. Associates Commercial Corp, US Dist Ct, Kansas, 1993. page 252 Associates went to get collateral (in form of tractor) from P diddy Clark. They hired Howard to do it. Howard hired Clark co. and through them, Lett and some other guy to go get it. In the process of getting it, Lett and other guy from Clark Co broke Pdiddy Clarks leg and did damage to property. Associates wants to indemnify themselves saying that Howard, Clark co, Lett, and other guy are really responsible. This basically becomes two cases. Pdiddy Clark v. A.C.C and A.C.C. (as third party plaintiff) v. Howard, Lett, and Clark. Reasoning If we (ACC) are liable to Pdiddy Clark, then H,C, and L are liable to us. Issue: Is impleader proper only if the third party defendant is or may be liable to the third party plaintiff for all or part of the plaintiffs claims against the third party? Holding: Yup. Here they try to get around it by saying that the third party liability would be based on implied indemnity under some active/passive rubric which isnt viable anymore in Kansas. But that is stupid, it is an agency theory of implied indemnity, which no one has questioned. Plaintiff also opposes because the third party doesnt owe a duty to the plaintiff, but it does not depend upon the existence of a duty on the part of the third-party toward the plaintiff. To the contrary, impleader is proper only if the 3rd party is or may be liable to the third party plaintiff for all or part of the plaintiffs claim against the third-party plaintiff. . Rule 14 talks about limitations of bringing a third party D. They can only bring third party complaint if it derives from the original complaint. This decision is left to the TCs discretion. But it should normally be allowed unless it will result in some prejudice to the other parties. N and Q Note 5. 13 h allows joinder of additional parties through counter claim or cross claim in accordance with Rules 19 and 20. This doesnt have to be derivative, why is it more limited under 14? Note 6. Augenti v. Cappellini v. Holy Spirit. Kid. sues deprogrammer hired by parents. Deprogrammer sues church for conspiracy with kid (they had deal to pay for litigation and be reimbursed out of proceeds, and to harass Cappellini, and to not let him talk to people, libel, etc).

Rule 14 derivative liability typically applicable when one event gives rise to double liability, defendant to plaintiff and third party defendant to third party plaintiff (original defendant). Here it didnt count. In Clark it did. Rule 13 Counterclaim and Cross-Claim a. Compulsory Counterclaims: A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing partys claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. (Pleading shall state counterclaims which the person pleading has against any opposing party at the time of serving the pleading. It has to arise out of the transaction or occurrence that is the subject matter of the claim it is countering and doesnt require parties the court cant get jurisdiction over). But, the pleader need not state the claim if (1). At the time the action was commenced the claim was the subject of another pending action or (2) the opposing party brought suit upon the claim by attachment or other process by which the court did not acquire jurisdiction to render a personal judgment on that claim, and the pleader is not stating any counterclaim under this Rule 13. b. Permissive Counterclaims: A pleading may state as a counterclaim any claim against an opposing party not arising out of the transaction or occurrence that is the subject matter of the opposing partys claim. c. Counterclaim exceeding opposing claim: counterclaims may or may not diminish or defeat the recovery sought by the opposing party. It may claim relief exceeding in amount or different in kind from that sought in the pleading of the opposing party. d. Counterclaim against the US: These rules do not enlarge the right to assert counterclaims , etc against the US. e. Counterclaim Maturing or Acquired After Pleading: claims which mature or are acquired by the pleader after serving a pleading may, with the permission of the court, be presented as a counterclaim by supplemental pleading. f. Omitted Counterclaim: When a pleader fails to set up a counterclaim through oversight, inadvertence, or excusable neglect, or when justice requires, the pleader may by leave of court set up to counterclaim by amendment. g. Cross-Claim Against Co-Party: A pleading may state as a cross claim any claim by one party against a co-party arising out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein or relating to any property that is the subject matter of the original action. Such cross-claim may include a claim that the paty against whom it is asserted is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the crossclaimant. h. Joinder of Additional Parties: Persons other than those made parties to the original action may be made parties to a counterclaim or cross-claim in accordance with the provisions of 19 and 20. i. Separate Trials; Separate Judgments: If the court orders separate trials as provided in 42b, judgment on a counterclaim or cross-claim may be rendered in accordance with the terms of 54b when the court has jurisdiction so to do, even if the claims of the opposing party have been dismissed or otherwise disposed of. F. Counterclaims and cross-claims (Rule 13) 13a is a sort of rule mandated RJ. It bars a party from recovering on a claim which at the time of serving the pleading, the pleader had against any opposing party, if it arose out of the transaction or occurrence that was the subject matter of the opposing partys claim.

13b is a liberal permissive counterclaim rule, allowing a party to bring a counterclaim if it has one against the opposing party. A permissive counterclaim is, by definition, one that doesnt arise out of the same T or O. It might not make the most convenient trial package, but is convenient with rule 18s allowance of joinder of claims that arent related. If is really bad they can severe or separate the trial (42b). 13g, cross claims, authorizes a claim against a co-party. It is limited to claims arising out of the same T or O of the original action (or counterclaims)s subject mater. 13h, allows for the addition of claims that can result in addition of parties if they can be sued as additional parties to the counterclaim or cross-claim in accordance with the provisions of 19 and 20. this means that so long as a current party to the litigation can assert a counterclaim or cross-claim under Rule 13, it can add parties to that claim provided that its claim against the added parties arises from the same T or series thereof within the meaning of 20.

N and Q 1. Why must cross-claims arise out of the same T or O as the original claim, but permissive counterclaims do not need to? Um, maybe because when you are against a party, it makes sense to get out all the claims you have against them if you want to, and when you are litigating a certain subject matter it makes sense to get out all the beefs about it right then, but if you have an unrelated claim against a co-party, it would be divisive and confusing to include them right then? 2. Why are cross-claims permissive same? 3. Go over this problem, I think A would sue B B would counterclaim for faulty vehicle against A A would implead D B would join/cross-claim C C would implead M A or B would join O as a O would implead/cross-claim B Not Sure G. Interpleader (Rule 22 and 28 U.S.C.A. 1335) Rule 22: (1) A person having a claim against the plaintiff in an action may be joined as a and required to interplead when their claims are such that the plaintiff is or may be exposed to double or multiple liability. (??) It is not good enough for an objection to this joinder that the claims of several claimants (or the titles on which their claims depend) arent the same (do not have a common origin or are not identical) but are adverse to and independent of one another, or that the plaintiff avers that the plaintiff is not liable in whole or in party to any or all of the claimants. A exposed to similar liability may obtain such interpleader by way of a cross claim or counterclaim. This rule doesnt in anyway limit joinder of parties under 20. (2). The remedy here in no way supersedes or limits the remedy in 28 USC 1335, 1397, 2361 28 U.S.C.A. 1335: The district court shall have original jurisdiction of any civil action of interpleader, or like interpleader, filed by anyone having in his custody or possession something more that $500 (I guess interest in the suit?) if: 1. Two or more adverse claimants, or diverse citizenship (1332) are claiming (or may claim) to be entitled to such $500 thing and if:

2. The plaintiff has deposited such money or property into the registry of the court to wait for judgment . (b). Such an action may be entertained although the titles or claims of the conflicting claimants do not have a common origin, or are not identical, but are adverse to and independent of one another. I dont understand these Interpleader is old in common law, but equity used it to permit a person faced with conflicting claims to a limited fund or property (the stake) to bring all the claimants into a single proceeding. This way the stakeholder could avoid the unfairness of inconsistent judgments or multiple liability that might result if each sued individually. Interpleader let a stakeholder afraid of separate suits, to institute his own action in which all claimants would litigate their claims simultaneously. The strict bill of interpleader was limited to four requirements (the meaning and purpose of which were never really clear): 1.The same thing, debt, or duty must be claimed by all parties against whom the relief is demanded (the parties against whom?) 2. all their adverse titles or claims must be dependent on or be derived from a common source. 3. The person asking the relief the plaintiff must not have or claim any interest in the subject matter. 4. He must have incurred no independent liability to either of the claimants; that is, he must stand perfectly indifferent between them, in the position merely of a stakeholder. I just dont understand the 1st. These were really limiting and not honored that often (except nominally). They got around it in equity by developing a bill in the nature of interpleader which allowed a stakeholder to claim all or part of the stake itself. The Sup Ct held in 1916 that this could only happen if all the claimants were personally served within the state, so it couldnt be for people from different states. So often businesses and insurance companies were not able to do this and had to defend multiple suits in different states. Congress overruled this decision by passing a federal interpleader statute passed in 1917, revised in 1936 -- 1335 (statutory interpleader). A question remained as to whether federal courts retained their traditional equity jurisdiction over interpleader actions, resolved by Rule 22 which provided for interpleader action based on general fed court jurisdiction. This is called rule interpleader. So there are two sources, rule and statutory. They are pretty similar as to scope of remedy, but different in jurisdiction and venue. You can use either, but because of these differences, one party may not be able to use both. State Farm Fire and Casualty Co. v. Tashire, Sup Ct, 1967, page 260 Fortas Facts: Greyhound bus hit pickup. Two on bus were killed, 33 injured + the bus driver and both in the truck. Four of the injured sued Greyhound, the driver, the truck driver, and the owner of the truck (the passenger) in Cali state court for over $1 million. Before trial, State Farm brought this action in the nature of an interpleader in US Dist CT in Oregon. State Farm had a policy of $10,000 per person and $20,000 per occurrence. State farm said the claims already far exceeded its maximum liability it put the 20K into the court and asked the court to require all claimants to establish their claims against the driver of the truck in this single proceeding. State Farm named Greyhound, the bus driver, the driver of the truck, the owner of the truck, and each of the prospective claimants as s. Tashire moved to have it dismissed or for a change of venue. The court refused to dismiss and granted the injunction to

state farm providing that all suits against the driver of the pickup, state farm, greyhound, and the bus driver be prosecuted in this proceeding. The Ninth Circuit Court of Appeals reversed that ruling that an insurance company may not invoke the federal interpleader until all the claims against it have been reduced to judgment. Issue: Can insurance companies invoke the federal interpleader before the claims against them have been reduced to judgment? Holding: Yes. The court of appeals based that on Oregons laws about insurance judgments. However, 1335 applies if there is diversity of citizenship. There is no problem with requiring only minimal diversity. This interpretation that it matters that Oregon says that the judgment has to have been decided doesnt matter anymore, it may have under the old statutes, but this statute carries with it the language about how any claimant may claim, implying that judgments dont have to have been laid down. If insurance companies had to wait until it came to judgment, the first claimant to obtain a judgment would get a disproportional slice of the fund before the others got judgments. That State Farm properly invoked the inerpleader statute, however, did not give it to the right to enjoin prosecution against it outside the confines of the interpleader proceeding or to extend such protection to its insured. Even less was Greyhound entitled to have that order expanded These steps grossly overstepped the confines of the fund deposited. You cant just use the existence of a fund to bootstrap everyone into a proceeding. only if all interests were in the fund could you do that. There is nothing in the statutory scheme, and very little in the judicial and academic commentary upon that scheme, which requires that the tail be allowed to wag the dog in this fashion. The $20,000 receives full vindication when the court restrains claimants from seeking to enforce against the insurance company any judgment obtained against its insured, except in the interpleader proceeding itself. This isnt mean to fix the problems with class actions. N and Q 1. You dont have to wait for a formal demand for payment or a suit against a fund to invoke an interpleader. Can you do it after? I guess so, they kind of did here. 2. Why wasnt State Farm allowed to invoke interpleader to prevent prosecution of the suits against its insured (clark) or the others? I can see why it doesnt extend to Greyhound, but why not to Clark cause it only goes to the fund, right? But isnt clark limited in his liability to the fund? 4. Greyhound couldnt do this because their liability was unlimited (didnt they have a limited insurance fund?), interpleader has to be to a limited fund or protected property interest, eg. 5. The Sup Ct refused to let this be the bill of peace to cure multiple litigation, so it could lead to conflicting judgments, and preclusion problems, and a waste of judicial resources. 6. Interpleader can be defensive. If the stakeholder is sued, he can interplead the other claimants through third party claim, cross claim, or counterclaim. 22(1) expressly authorizes interpleader by cross claim and counterclaim, and precedent has stretched it to third party claims and intervention. 7. Now stakeholders dont have to admit liability to any of the claimants, they can plead in the alternative that it is not liable and get the money back if they find that to be true. 8. There are two stages to interpleaders. 1. does the stakeholder have a genuine fear of exposure to multiple liability upon the same obligation. And 2. look at the merits of the claims by the claimants. The request for an interpleader should be based only the first part.

9. As footnote 3 suggests, the primary difference between statutory and rule interpleader are in the requirements for diversity, service of process and venue. Rule: governed by the general statutes and rules governing diversity (1332), service of process (rule 4) and venue (1391). Rule 22(1) actions require complete diversity between stakeholders on one side, and the claimants, on the other, as well as $50,000 in controversy. Not 75? Statutory: contains special provisions for these matters, diversity is only required as between the claimants, and only $500 is required for the amount in controversy (1335), there is nationwide service of process (2361), and venue lies in the district of the residence of one or more claimants (1397) Chart on page 268. 10. In rule, the Anti-Injunction Act (2283) provides the only exception that could conceivably allow a federal court to enjoin ongoing state proceedings, that is, where necessary in aid of its jurisdiction, a provision which has received an extremely narrow construction. However, the Act also provides an exception when expressly authorized by Act of Congress, and statutory interpleader under 2361 expressly allows an order restraining claimants from instituting or prosecuting any proceeding in any state or united states court affecting the property until further order of the court. I dont understand this, does that mean that in rule, a federal court cant enjoin a state proceeding, but that in statutory they can? H. Intervention (Rule 24) Rule 24: Intervention a. Intervention of Right: Upon timely application anyone shall be permitted to intervene in an action: (1) when a US Statute says that you can unconditionally; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicants ability to protect that interest unless the applicants interest is adequately represented by existing parties. So, you shall be allowed intervene, if you ask on time and: if the government says you can(unconditionally), or if you have an interest that could be (as a practical matter) impaired or impeded) by the action unless the court decides that you are adequately represented. Where did we see that impair/impede stuff before? b. Permissive Intervention: Upon timely application anyone may be permitted to intervene in an action: (1). When a statute of the US confers a conditional right to intervene; or (2) when an applicants claim or defense and the main action have a question of law or fact in common. When a party to an action relies on ground of claim or defense upon any statute or executive order administered by a fed or state governmental officer or agency or upon any regulation (etc) pursuant to the statute (etc), the officer (etc) upon timely application may be permitted to intervene in the action. In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties. So, you may be allowed to intervene, if you ask on time and: if (1) the government says maybe you can, or (2) if your claim or defense has a question of law/fact in common with the main action. When a party relies on a governmental type reg or statement or statute, the officer, agency, whatever can also intervene if they ask on time right?. The court, when they decide whether to grant this or not, should consider whether the intervention will unduly delay or prejudice the original parties. c. Procedure: A person who wants to intervene shall serve a motion upon the parties as under rule 5. It shall state the grounds and have a pleading setting for the claim or defense for which they want intervention. The same procedure shall be followed when a statute of the US give a right to intervene. When the constitutionality of an act of Congress affecting the public interest is drawn in question in any action which the United States or an officer (etc) is not a party, the court shall notify

the AG of the US as provided in Title 28 2403. When the constitutionality of any statute of a state affecting the public interest is drawn in question in any action in which that State or agency (etc) is not a party, the court shall notify the AG of the estate A party challenging the constitutionality of legislation should call the attention of the court to its consequential duty, but failure to do so is not a waiver of any constitutional right otherwise timely asserted. Intervention is pretty new It is a device for an outsider who has an interest in a lawsuit to voluntarily join as a party. It may often be someone who would have been joined but who wasnt because there wasnt personal jurisdiction. 24b recognizes that intervention may be useful to the court even if a party lacks the compelling interest of an intervenor of right. Permissive intervention is left to the discretion of the court. Natural Resource Defense Council, Inc. v. United States Nuclear Regulatory Commission U.S. Court of Appeals, 10th 1978 Facts: Underlying action was instituted by the NRDC and others seeking declaratory and injunctive relief from the NRC and NMEIA prohibiting those agencies from issuing licenses for the operation of uranium mills in New Mexico without first preparing environmental impact statements. The NRC was authorized to issue such licenses under an Act of Congress. NMEIA is involved because the NRC is allowed to enter into such agreements with the states allowing them to issue licenses. The action below seeks to prevent the use of the act so as to avoid the requirement of an impact statement for which a provision is made in another Act. The NRC has to prepare such statements, but has been getting around it by making agreements with states. Plaintiff contends that by granting licenses through state agencies, the NRC finds a loophole that keeps them from having to prepare these impact statements (I guess they only have to make them if they are authorized by major federal action and here it is such action from feds to NRC, but they say it isnt from NRC to states. United Nuclear Corp tried to intervene and no one had any problems with that. Then Kerr-McGee and some others wanted to intervene (note, nothing before this is even remotely important to what I need to know in this case). They were denied because their interests were adequately represented by United Nuclear. They were denied both permissive and as right. The court thought that to allow intervention would engender delay and produce unwieldy procedure. Issue: Do these parties have an interest upon which the disposition of this action will have a significant legal effect (and is that enough to allow intervention under 24a2)? Holding: Yes. The lower court used too narrow of an application of rule 24. You dont have to have a direct interest in the outcome of the lawsuit. The Sup Ct has said that the interest must be a significantly protectable interest. They have also held that it doesnt have to be a direct interest but one that would be impaired by the outcome. Here the effect is likely to be profound. So, they have an interest which could be impaired. Is the chance of such impairment sufficient to fulfill the requirement of 24a2. The parties opposing the intervention say that it wont be affected because they wont be bound by the result. Even so, there will at least be stare decisis, and when NRC and NMEIA are parties, it could be even more serious than that. Also rule 24 looks to impairment as a practical matter. The court, therefore, may consider the legal effect on the interest, and not just res judicata. Since stare decisis may screw them, that is good enough. And the question in the suits will be virtually the same, so the chances of getting a contrary result in a case which is substantially similar on its face. Last question, was TC right in its conclusion that United Nuclear would adequately represent Kerr-McGee, et al. (here, they were fellow members of the industry, has interests which were the same as those of the appellants and possessed the same level of knowledge and experience and the with the ability and willingness to pursue the matter). The burden is on the petitioner or movant in

intervention to show that the representation would be inadequate. The burden is minimal just that the representation may be inadequate. K-M says that UN is situated differently because it has been granted a license. UN may be ready to compromise the case for declaration that will affect only future companies. Court doubts they will do that, but they note that UN has a defense of laches not available to the others. Then they quote a book that says if there is a similar but not identical difference, the other party should be allowed to intervene unless it is clear that the party will provide adequate representation for the absentee. Also it would be good to bring these parties in so they too will be bound by the result. 2. Compare 19a and 24a2. 3. The court suggests that the stare decisis effect should be sufficient to impair the right if intervention be denied. Who could then intervene as a right in a case in which plaintiff seeks to persuade a court in a state that presently treats contributory negligence as a complete defense to switch to a comparative negligence regime? 4. When an intervenor can show prospective impairment to the right kind of interest, intervention is to be denied only if the intervenors interests are adequately represented by the present parties. The intervenor need only show that it may be inadequate, burden is minimal. However, when the party seeking intervention has the same ultimate objective as a party to the suit, a presumption arises that its interests are adequately represented, against which the petitioner must demonstrate adversity of interest, collusion, or nonfeasance. 6. Timely-ness: A woman made an application to intervene only after she learned that the parties were not going to appeal a denial of a class certification, and that was found to have been as soon as it became clear that her interests were no longer protected by the class representatives. Some case lists four factors in assessing timeliness: 1. when the intervenor knew or should have known of his interest in the case. 2. whether there was prejudice to existing parties from the delay in seeking intervention. 3. whether there would be prejudice to the intervenor if intervention were denied, and 4. any unusual circumstances. 7. Intervenors have the right to fully litigate the merits by pleading and setting forth claims and defenses where they arise from the same transactions as the main claims or are ancillary thereto. Also, an intervenor in equitable proceedings is bound by all prior orders and decrees. Not at law? 8. You can restrict participation on an intervenor and on an original party. In the case in question, however, it seems to me like they were only restricting the intervenors are they then bound as they would be otherwise? 9. I didnt look at this one because I am tired. 10. Govt cant intervene sometimes even when their interests are there. 11. You can intervene for a limited purpose, it doesnt have to be to the full case. Note: Definition of Interest in Rule 24a2

It applies when the applicant claims an interest relating to the property or transaction which is the subject of the action. What sort of interest is sufficient has been answered in three Sup Ct decisions that arent necessarily convergent: o Cascade Natural Gas took a broad interpretation of the interest required, including non-legally protected interests, such as economic concerns. o Donaldson v. United States way more narrow concept of interest: what is obviously meant there is a significantly protectable interest. o Trbovich v. Untied Mine a party who was not allowed, by statute to sue, was allowed to intervene (even though they shouldnt have been allowed to sue) kind of violates Donaldson, and they didnt mention it in the opinion. o Cascade focused on pragmatic or economic factors, in Donaldson the court refused intervention despite strong practical interest because there was no protectable interest o Because Sup Ct cases leave some uncertainty, several different approaches have emerged at the lower level. 5th cir what is required is that the interest be one which the substantive law recognizes as belonging to or being owned by the applicant. The real party in interest of 17a applies to intervenors as do the rules of standing. The question of whether the intervenors have to satisfy standing is unanswered. P. 280. An Il case has held (7th) that an opinion on something (even religious or political) is not enough to qualify one as an intervener. 12. 1966 Advisory Committee Note, Rule 24 (FRCP Pamphlet, pp. 272-274)

14. Class Actions: Rule 23 FRCP Rule 23: Class Actions (abridged) a. Prerequisites to a Class Action: One or more members of a class may sue or be sued as representative parties only if: 1. the class is so numerous that joinder of all members is impracticable, 2 there are questions of law or fact in common to the class, 3 the claims or defenses of the representative parties are typical of the claims or defenses of the class, and 4 the representative parties will fairly and adequately protect the interests of the class. b. Class Actions Maintainable: an action can be maintained as a class if all of (a) are satisfied and: 1) The prosecution of separate actions by or against individual members of the class would create a risk of (a) inconsistent of varying adjudications with respect to individuals which would establish incompatible standards of conduct for the party opposing the class or (b) adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests or 2) The party opposing the class has acted or refused to act on grounds generally applicable to the class, making appropriate final injunctive relief or declaratory relief with respect to the class as a whole or 3) The court finds that the questions of law or fact common to the members of the class predominated over any questions affecting only individuals and that a class is superior for fairness and efficient adjudication. The matters pertinent to the finding include. (a) the interest of members of the class in individually controlling the prosecution or defense of separate actions, (b) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class, (c) the desirability or undesirability of concentrating the litigation of the claims in the particular forum, (d) the difficulties likely to be encountered in the management of a class action.

c. Determination by Order whether class action to be maintained; notice; judgment; actions conducted partially as class actions. 1) As soon as practicable the court shall determine by order whether class should be maintained. These orders are alterable. 2) Under b3, the court shall direct to the members of the class the best notice practicable under the circumstances, including individual notice to those who can be found reasonably. The notice shall advise each member that (a)the court will exclude the members from the class only if they request it by a certain date. (b) the judgment (either way) will include all members who do not request exclusion, and (c) any member who does not request exclusion, can, if they want, enter an appearance through counsel. 3) Judgments under b1 or b2 (either way) shall include and describe those whom the court finds to be members of the class. A judgment either way under b3 shall include and specify or describe those to whom the notice provided in c2 was directed and who have not requested exclusion and whom the court finds to be members of the class. 4) When appropriate (A) an action may be brough or maintained as a class on particular issues, or (B) a class can be divided into subclasses and each of those treated as a class under these rules. d. Orders in Conduct of actions In the conduct of actions to which this rule applies, the court may make appropriate orders: (1) in determining the course of proceedings to get rid of repetition, (2) requiring, for the protection of the members of the class, that notice be given in such a manner as the court may direct to some or all of the members of any step on the action, or of the proposed extend ot the judgment, or of te opportunity of members to signify whether they consider the representation fair and adequate, to intervene and present claims or defenses, (3) imposing conditions on the representative parties or intervenors (4) requiring that the pleadings be amended to eliminate therefrom allegations as to representation of absent powersons, and that the action proceed accordingly, (5) dealing with similar procedural matters. The orders may be combined with an order under Rule 16 and may be altered or amended from time to time. E Dismissal or Compromise: A class shall not be dismissed or compromised without the approval of the court, and notice of the dismissal or compromise shall be given to all members of the class in such manner as the court directs. f. Appeals: a court of appeals may in its discretion permit an appeal from an order of a district court granting or denying class action cert under this rule if applicable is made to it within ten days after entry of the order. An appeal does not stay proceedings in the district court unless the district judge or the court of appeals so orders. The modern class action is one of the most versatile and powerful joinder devices, offering enormous savings of judicial resources but also providing a significant potential for abuse.

1. The problem of Representation Hansberry v. Lee, Sup Ct, 1940, Justice Stone, page 281. Facts: Hs are black they moved into a home in Chicago in an area covered by a racially restrictive covenant. In reaction, owners of neighboring homes sued in an IL state court to void the sale to the Hs. The Hs defended on the ground that the covenant never became effective because it wasnt signed by 95% of the homeowners in the area, as required by its terms. The trial court found that only 54% had signed it. The sale was voided, however, because it was found that they were bound by a decision that the covenant was valid in an earlier suit. This suit was brought on behalf of all landowners in the area and alleged that the covenant had been signed by the required number. s in that case stipulated

that that was true (morons). This lower court found that it couldnt reopen the issue because the earlier decision was binding on the Hs grantor (a member of the class as a property owner). The lower court found that that case wasnt collusive or fraudulent, just wrong. Issue: For a judgment in a class to be binding, must all of the members of the class be adequately represented by parties with similar interests. Holding: Yes. This court is justified in saying that there has been a failure of due process only in those cases where it cannot be said that the procedure adopted, fairly insures the protection of the interests of absent parties who are bound to it. Members of a class not present may be bound by judgment when they are in fact adequately preresented or when the y participate or where their interests are joint, or where there relationship is such as to entitle the former to stand for the latter. It cant be said that one who wants to enforce something has the saem interests as oen who wants to resist it. You cant say that people represent each other if they dont have the same interests. This would introduce fraud and collusion. when the judgment of a state court, ascribing to the judgment of another court the binding force and effect of res judicata, is challenged for want of due process it becomes the duty of this court to examine the course of procedure in both litigations to ascertain whether the litigant whose rights have thus been adjudicated has been afforded such notice and opportunity to be heard as are requisite to the DP which Constitution prescribes. Basically the point here was that to be members of a class you have to have similar interests, here they were conflicting, so how can you say that they were together? Except, they sued his grantor, doesnt that change anything? N and Q 1. I dont feel like I need any of these notes and questions, I dont know, though, if that is a function of me being overly zealous before or underly so now. 2. The Standards for Certification The FRCP used to divide class actions into true, hybrid, and spurious. The 1966 amendments to rule 23 got rid of those and replaced them with three kinds that are defined in functional terms. o 1: focuses on the potentially harmful consequences for the parties absent use of the class action. It has two parts a b1A or incompatible standards class, concerned with the interests of the party opposing the class, and a b1B or impairment of interests class, focusing on the interests of the absent class members. o 2: the b2 class action, is applicable when injunctive or declaratory relief is sought against a party who has acted or refused to act on grounds generally applicable to the class. o 3: this is a catch-all, applying when questions of law or fact common to the class predominate. The new rule also established four general prerequisites for class certification: numerosity, commonality, typicality, and representativeness (23a) Every class must satisfy all four of these prerequisites as well as meeting the criteria for one of the b1, 2 or 3 types. Holland v. Steele, US Dist Ct, N Dist of GA, 1981, page 287. Facts: Civil rights action seeking order prohibiting from restricing plaintiffs access to counsel and the courts. This is a class cert for all who are or will be detained in a certain jail. He alleged that they were denied access to counsel.

Issue: Do the prerequisites of a class action exist where (1) the class is so numerous that joinder of all members is impracticable (2) there are questions of law and fact common to the class (3) the claims or defenses of the rep parties are typical to the others and (4) the representative parties will fairly and adequately protect the interests of the class? Holding: Yes. 23a: 1. Numerosity. There must be some evidence or reasonable estimate. There will be at least 40 inmates in the next year. The focus is not on numbers alone, but on whether joinder is practicable in view of the numerosity. Smaller classes are better when the P is seeking injunctive relief on behalf of future class members. Obviously you wont be able to identify all individuals likely to become inmates. 23a1 is clearly met for joinder of unknown individuals is certainly impracticable. 2. Common Questions of Law or Fact: Here there are common factual questions, and law. There may arise a distinction between the rights of different members, but right now there is no problem. Fact patterns dont have to be identical just the types of facts or evidence need be typical. 3. Typicality: This is similar to 2, but focuses on the claim of the representative party, not the class as a whole. The named plaintiff has to have a claim typical of the class, not identical. The named plaintiff can bring an across the board class action. The Sup Ct says that typicality is met when a class representative [is] part of the class and possess[es] the same interest and suffer[s] the same injury as the class members. Here that is good to go. 4. Adequate Representation There are two factors crucial in this question. (a) the rep must have common interests with the unnamed members and (b) it must appear that the representative will vigorously prosecute the interests of the class through qualified counsel. Here, the plaintiffs interest is not antagonistic to potential members, and the lawyers are good. So, 23a is good to go. Under 23b2 class cert is proper if 23a are met and the party opposing the class has acted or failed to act on grounds generally applicable to the class, making appropriate final injunctive and declaratory relief with respect to the class as a whole. This just has to be general, not totally specific. Detainees and sentences are both included in this for now, it may change, but here the rights attach to them alike and so they still satisfy commonality and typicality. N and Q. 1. Numerosity is weird because different courts find totally different numbers of people necessary, (350 not enough, 40 too many). Courts look to such factors as the relative difficulties of joinder versus class treatment, whether individual joinder might still be accompanied by representation by a single attorney and identical pleadings, and the geographical location of the potential plaintiffs. 2. If too low a number of the members of the class who have sizable economic stake have showed interest in filing suit, the court may find a lack of numerosity. They suggest (on page 292) that if too few want to join to amount to class action, they can be joined instead of making a class. This has been criticized as amounting to an opt in requirement. That most did not express an interest in joining suggests joinder impracticability, not the opposite. And as in all opt-in situations, the response of the class members likely would have been far more positive had there already been a class recovery on their behalf. 4. Commonality: they are all in different situations, how can it be said that common issues predominate? Do the nature of the claims affect the commonality analysis? There is a common question of law raised b y the plaintiff as to whether the practices of the defendant constitute a violation of the rights afforded under the 6th, and 14th Amendments. At some point a distinction may arise as to the rights to counsel between detainees and sentences, but for now they are good to go.

5. They ask if a liberal across the board rule should apply to all jailed people prob not, see the case in the end of the opinion. Try to do the problem with Jason. 6. Plaintiffs often favor mandatory class action under 23b1 or b2 because notice to individual class members and a right to opt out are not required by the rule as they are for b3 actions. 23b2 contemplates equitable relief. When the primary relief sought is equitable, courts will sometimes allow 23b2 actions to include some damages or back payments. Determining if things are primarily injunctive is a little silly though, they think, some think they should allow hybrid class actions using 23c4 which allows class cert with respect to different issues. They give an example of a case where they certified under 23b2 in two stages, first to determine liability (no opt out) and the second for monetary relief (opt out). 11th circuit. The 5th circuit, though, found that a hybrid case (at least here, I dont know if they mean generally) cant satisfy the requirement that common issues must predominate. 7. 23b1 actions are also mandatory (based on the necessity for a class action to avert unfairness that could result from multiple individual suits). In b1a suits they are trying to avoid inconsistent or varying adjudications, incompatible standards if there were individual suits by class members. The opposing partys uncertainty as to what standards it must follow in its future conduct, as in the risk of being subjected to incompatible affirmative relief. In b1b suits it is based on unfairness to missing class members if there were individual suits by class members. It applies if as a practical matter adjudications by individual class members would be dispositive of the interests of missing class members that would substantially impair or impede their ability to protect their interests. The paradigm is where individual suits could exhaust a limited fund to which all class members have a claim, and thus, as a practical matter, would impair the missing class members rights. 8. denying a right to opt out in hybrid class actions or b1 or b2 class actions where monetary relief is also sought, raises possible constitutional problems. Some case suggested that due process may require that an absent plaintiff be provided with an opportunity to remove himself from the class by executing and returning an opt out or request for exclusion form to the court if monetary claims are involved. In a footnote though, they said our holding today is limited to those class actions which seek to bind known plaintiffs concerning claims wholly or predominantly for money judgments. We intimate no view concerning other types of class action lawsuits, such as those seeking equitable relief. (sup ct case)-- The Sup ct hasnt decided if there should be a right to opt out in a b1 or b2 action that doesnt involve monetary relief. In the Matter of Rhone-Poulenc Rorer, Inc US 7th circuit, 1995, page 295 Posner Facts: Defendant drug companies manufacture blood solids for hemophiliacs. For a while before it was discovered, they were giving the hemophiliacs HIV/AIDS. 2,000 have died and 10,000ish have it. There have been 13 suits decided so far on liability for this and 12 have been decided for the defendants. There are two theories of liability here, 1. had they been treating the blood for Hep B and screening for high risk Hep B people they would have lowered incidence of AIDS, and 2. It took them too long to get it together after they knew they were giving AIDS out. Because people have different fact patterns and are arguing separately under 1 and 2, the district court granted class cert under 23c4a which would grant cert with respect to particular issues. He wanted to have the jury give a special verdict and then people could take whatever negligence finding there was and file individual tort suits

in state and federal district courts around the nation and use the special verdict, and collateral estoppel to block religitigation of the issue of negligence. But this decision wouldnt be appealable because it isnt until there is a final judgment. By that time there would be tons of litigation all based on this reversible error of sillyness. The final judgment would come too late to provide effective relief to the defendants and that is an important consideration in deciding to grant mandamus (and hear this now). There will be intense pressure to settle. So the judge overstepped his bounds. There are a couple of concerns with this. 1. is forcing the s to stake their companies on the outcome of a signle jury trial or be forced by fear of the risk of bankruptcy to settle even if they dont have legal liability. 2. also the district judge proposes to substitute a single trial before a single jury instructed in accordance with no actual law of any jurisdiction (given Esperanto instruction) and this will supplant the maturation of the issue through litigation. There is no federal common law. The 1st claim of liability is novel, the states dont have settled law in it so how are you going to instruct the jury in such a way that the states dont get screwed out of making the determinations. That people may not sue absent a class because they are embarrassed because they have AIDS, sorry, you cant do that John Doe device may work, and it may not, that isnt the point of class actions. 3. yea, you can bifurcate trials, but you have to carve at the joint, you cant divide things in such a way as to make it so two different juries decide the same issues. The plan of this judge is inconsistent with the principle that the findings of one jury are not to be reexmamined by a second, or third, or nth jury. Also, when the fate of an industry is at question sit may make more sense to let different trials create a sample from which too examine the issue (what about collateral estoppel) Then this other judge dissented saying that it wouldnt coerce settlement -- even if the found negligence on these issues, they would still have to deal with a bunch of stuff before they got a verdict, it isnt like a judgment for some liability would mean everyone gets tons of money. the majoritys arguments addressed to the propriety of forcing defendants to stake their companies on the outcome of a single jury trial or allowing a single jury to hold the fate of an industry in the palm of its hand seem to me at odds with 23 itself. That rule expressly permits class treatments of such claims when its requirements are met, regardless of the magnitude of potential liability. this is all a rational for amending the rule, not avoiding the application in this case. N and Q 1. 23b2 is used usually in civil rights an constitutional litigation. People have been slower to use it for mass torts the advisory notes of 1966 said that it would probably not be best for a mass accident because it would degenerate in practice into multiple lawsuits separately tried. but some guy who said that now things that unless we can use the class action and devices built on the class action (for mass torts), our judicial system is not going to be able to copewith the challenge of the mass repetitive wrong. 2. The most amenable mass torts to class action are the mass accident cases like trainwrecks, becauswe the focus of the common trial will be a single event cases involving exposure of many persons to toxic substances at different time and places cold still be suitable for aggregate treatment if the focus of the suit will be on the single course of conduct or condition at a single site without likelihood of individualized defensive or causation issues. 3. asbestos and tobacco they have used some big class actions for asbestos to decide the defense issues. Once they tried to do a gigantic tobacco, but they decided not to because it wouldnt help that much and they would have the same choice of law problem as in rhone poulenc. (why cant they just submit to the state of the company or something?).

they keep talking about the predominance or superiority problem, page 307??? 7. to deal with choice of law problems: motions to certify nationwide class actions have increasingly been accompanied by an analysis and comparison of the governing state laws. Plaintiffs argue either that, under choice of law, the law of one state will apply, or that the laws of all the states fall into a small number of categories, allowing a jury to apply the different standards by answering different interrogatories. 8. courts arent supposed to go to the merits of the case in determining whether it should be certified. But maybe they can go beyond pleadings 9. some courts have found that differences in individual facts dont matter as long as the thread of the wrong runs through all alleged claims, but another has found that resolution of overarching common issues breaks down into unmanageable variety of individual legal and factual issues if they arent similar enough. 10. Settlement class actions: 23 seems to contemplate an early decision whether a case is suitable for litigation as a class and settlement only after that, but in the 90s people started certifying cases only for the purposes of settlement. They have proposed a new 23b4 which would permit certification for settlement in 23b3 cases even though the predominance requirements had not been met. (that should mean something to me.) In Amchem they wanted a settlement class, the court (sup) agreed that settlement is relevant to a class cert but that confronted with a request for settlement only class cert, a dist court need not einqurie whether the case, if tried, would present intractable m anagement problems for the proposal is that there be no trial. But other specifications of the rule those designed to protect absentees by blocking unwarranted or overbroad class definitions demand undiluted, even heightened attention in the settlement context. here there is a conflict of interest between current and future parties. so they broke it down, maybe, into separate classes each with its own attorneys. Problem with settlement classes, is that s can find a pliant lawyer and get a class with them and make a good deal for the and then foreclose any future litigation. Reverse auction. 11. Coupon settlements a recent trend of settlements has been to award class members coupons that can be reclaimed for services or products of the rather than cash so this gives large fees to lawyers and maybe screws the people GM case where lawyers got 9.5 million and they all got 1,000 of a truck. Redish is pissed about this 12. limited fund mass tort class actions: in some mass tort cases efforts have been made to use the limited fund predicament as grounds for a mandatory class under 23b1b. is that consistent with the rule? Sup Ct suggests that there are situations in which this could be used, but not that many 13. Consolidation. Some of the same issues that confront mass tort class actions have arisen ins ituations in which district courts use Rule 42 to consolidate large numbers of separate personal injury cases for combined trial, particularly in asbestos cases. 3. Problems of Implementation Eisen v. Carlisle and Jacquelin, Sup Ct, 1974, page 313 Facts: In case involving tons of plaintiffs (6 million), first they didnt certify as a class because it was unmanageable. Then (eisen ii) they the court authorized a four step notice scheme, involving different

levels of notice and some not even getting any notice (except through publication) Then, after a hearing to determining that the named plaintiff was likely to prevail, the court ordered the s to bear 90% of the 22,000ish costs of notice, because Eisen only stood to collect 70 bucks on his claim. Then in the third case, the court of appeals reversed and after certification the opinion from the sup court followed. Issue: Does 23c2 permit a class representative to proceed in a class action without 1 giving notice to all identifiable members of the class and 2 bearing the whole cost of such notice. Holding: Nope. 23c2 requires that, in any class action, individual notice of the pendency of such action must be given to all class members who can be identified through reasonable efforts and the cost of such notice must be born by the prospective class representative. Notice and opportunity to be heard are fundamental requisites of the constitutional guarantee of procedural due process. Because of that 23 expressly mandates that each prospective class action member be advised of the pendency of the action, his choice to exclude himself therefrom, and the fact that he will be bound by any class judgment he does not so exclude himself from. These requirements are mandatory. This scheme adopted by the district court violates almost every one of these and despite Eisens claims to the contrary, it is well settled that publication notice is not 23 ntoice. There is nothing in the history of 23 or the constitution which would sanction a pretrial determinanation of the merits of a case such as the district court undertook here in order to assign the costs of notice. Such costs must fall, at least initially, upon the plaintiff in a class action. Douglas dissents: This is right, but an alternative method of dealing with the problems here should be stressed. 23c4 provides that a class may be divided into subclasses and each subclass treated as a class. There is no reason here why Eisen could not limit his notice requirements by simply defning a smaller subclass and proceeding as its representative. Editors note: some believe that this notice and cost of notice ruling practically eliminated the federal class action as an effective tool for redress of individually small but collecitveloy great consumer claims. The court did leave some liberal standards though, ie the court did not, as it might have, put a ceiling on the maximum possible number of potential class members (it could have said unmanageable) The court didnt require actual notice only reasonable efforts to give notice. The court didnt rule out Douglass approach (they even kind of sanctioned it) They did, however, put an implicit limit. The basic mathematical fact of lfe that consumers representing smaller subclasses will necessarily have a smaller aggregate claim to begin with. This will, of course, mean that the class representatives have less leverage in settlement negotiations. N and Q 1. The Sup Ct decision on the procedural issue of notice effectively ended the possibility of such a suit because the cost of identifying and providing individual notice to class members that contingent fee attys would be screwed. One purpose of class actions was to make it feasible to correct group wrongs where no one individual would have had the money to litigate. But what about notice and due process. They suggest that maybe it would be better to go to the expense of giving notice only if and when there is some recovery and then to notify class members of their right to apply for compensation. But they would be bound. 2. 23c2 requires best notice practicable under the circumstances. Does it include costs? In eisen it didnt. 3. it is also hard to identify the class members.

4. notice can be really hard to give in mass tort cases, even tv adds, will not work sometimes if the class has too many permutations or too many potential members, who dont know they are yet, or their spouses who will suffer loss of consortium or whatever, who arent even married yet. It is a mess. 5. Hansberry v. Lee provides a backstop against misuse of the class action device in that class members who have opted out may try to avoid being bound by the class action on the ground that they were so poorly represented that they were denied due process. But it is rare. individualistic tinge of our class action law. Rather than asking the court o make sure that the case is well handled we emphasize the right of the individuals who may be bound to vote with their feet.

15. 1966 Advisory Committee Note, Rule 23 (FRCP Pamphlet, pp. 260-271)

III. Supplemental Jurisdiction The penumbra of federal judicial power supplemental jurisdiction: Once you have a ground for federal jurisdiction, that jurisdiction, according to CJ Marshall is not limited to the decision of federal issues involve din a case. a cause may depend on several questions of fact and law. Some of these may depend on the construction of a law of the United States; others on principles unconnected with that law. all other questions must be decided as incidental to this which gives that jurisdiction (ie whatever gives jurisdiction has to be decided with the issues that are incidental to it.) otherwise you should only be able to hear the parts of cases wich present the particular question involving the construction of the constitution or the law, which makes Congress unable to grant original jurisdiction blah blah, the point is it would thwart the intent of federal jurisdiction. Sometimes a federal court which has authority over fed and state issues in a claim may disregard the federal and answer the state. They did that in some RR case on 879 where the state case was dispositive: where a case in this court can be decided without reference to questions arising under the Con that course is usually pursued and is not departed from without important reasons. This was the starting point for: pendent jurisdiction it permits a federal court to decide separate state law claims because of a relation between those claims and federal question claims. Ancillary jurisdiction usually referred to the opportunity for one in the posture of a (including intervenors and third party s) to assert claims, either against the plaintiff or against third parties, over which the federal court did not have original jurisdiction but which are related to the claims over which the court had original jurisdiction. These were joined and now they are grouped under supplemental jurisdiction. United Mine Workers of America v. Gibbs, Sup Ct, 1966, page 879 Facts: There was a dispute between United Mine Workers and the Southern Labor Union over who should represent the coal miners in that area. A mine was closed down and the owner of that mine hired Gibbs to open a new mind with workers from Southern Labor Union (the closed mine had had United Mine Workers workers). Gibbs also had a contract to haul the coal to the railroad. UMW people prevented the opening of the mine. Gibbs lost his job and never performed on the haulage contract. He soon began to lose other contracts and leases, which he claimed was a result of a concerted union plan against him. He sued in Dist Ct for the Eastern Dist of Tenn for violation of a Labor Management Relations Act and a state law claim based on the doctrine of pendant jurisdiction that there was an unlawful conspiracy and boycott aimed at him to interfere with his contract of employment and his contract of haulage. The jury found that UMW workers violated both the Act and the state law. The trial court set aside the award of damages on the haulage contracts and entered a verdict for UMW on the federal claim. The state claim award was sustained. C Ap affirmed. Issue: Can federal courts decide state issues that are closely related to the federal issue being litigated? Holding: Yes. When there are both state and federal claims involved in the same set of facts and the claims are such that the plaintiff would o9rdinarily be expected to try them all in one judicial proceeding, the federal court has the power to hear both. The feds claims must have substance sufficient to confer subject matter j. this is pendant jurisdiction and it is discretionary. The court should look at judicial economy convenience and fairness to litigants in deciding whether to do it. If the factual relationship between the state and federal claims is so close that they

ought to be litigated at the same trial, the court ought to grant it. If they are confusing to the jury, then dismiss. The issue of whether such jurisdiction is appropriate is open throughout the trial. If, before the trial, the federal claim is dismissed the state claim should be too. If it appears that the state claim is the real body of a case, then it should be dismissed. Editors notes now the state and federal claims can state separate causes of action as long as they are factually closely related. N and Q 6. Assuming there is substantial federal claim, Gibbs tells us that the power over state claims depends on the relation between the federal and state claims a. what is common nucleus of operative fact i. total identify of facts to support both, ii. Substantial factual overlap without total identity, or iii. Common transactional origin. b. the court adds that the relationship between the claims should indicate that P would normally be expected to try them all in one judicial proceeding. 9. they wont always get rid of the secondary claim if the first one goes efficiency, etc. 10. personal and pendent jurisdiction together. 889-904?? 2. 28 U.S.C. s 1367 (FRCP Pamphlet, pp. 624-625) IV. Seventh Amendment Right to Jury Trial 1. Pp. 585-601

II. Judgment as a Matter of Law (formerly directed verdict, and Judgment Non Obstante Verdicto (not withstanding the verdict))
Rules: FRCP 50, 59-61

JUDGMENT AS A MATTER OF LAW

Under Rule 50(a) Motions made at close of opponents evidence Judge must find that there is insufficient evidence to go to the jury OR that the evidence is so compelling that only one result could follow. so it is similar to summary judgment in that it looks at genuine issues of fact for jury, but judges arent so hesitant to grant it because it comes later in the process. It involves essentially the same analysis of meeting and shifting burden as in sum j. Party with burden of proof has to present enough evidence that the reasonable jury could find for him, opponent can move to ask judge if he has done that. If the party with the burden of proof feels that they have proven it to such a degree as the jury could go no other way, they can make the movement.

It used to be Directed Verdict (made before case went to jury) and Judgment not withstanding verdict (n.o.v.) (made after jury verdict was rendered). This was the only difference, they were combined because they are at the core the same, but nominal change really. 2 issues must be considered. 1. is the motion consistent with the constitutional dictates concerning the role of the jury and 2. the method for determining whether there exists sufficient evidence for a reasonable jury. 50b LOOK AT THIS.,

1. Galloway v. United States, Sup Ct. 1943 -- Page 585 Facts: This is the case with the guy (Galloway), who was in WWI. He had some bizarre episodes in Europe. He came back and had even more erratic behaviour. By 1930 he was diagnosed as psychotic. He eventually filed (1934) for military benefits, to qualify he would have had to have been mentally ill since n later than 1919. He was denied and filed claim to obtain the benefits. He gave no evidence of his condition from 1923 to 1930, unexplainedly. The trial court found that he had made an insufficient showing and ordered a directed verdict. C. of Appeals affirmed and Supreme Court granted review. Issue: The issue raised by Galloway was that the lower courts were wrong and therefore they violated his right to a jury. The court disposed with that (they said he was wrong), but they also turned to the constitutional issue of whether Directed Verdict violated the 7th Amendment right to jury trial. Holding: It doesnt. First of all, the 7th Amendment doesnt really go to this case, but if it did, it wouldnt be violated. The right to jury trial as it was in 1791 was not absolute as to the discretion of juries. They have always had various degrees of judicial control, over factual issues and otherwise. Arguments about how proof was presented in 1791 (and similar arguments) also dont make the amendment stick. It does say preserve, but we read that to mean preserve the basic function of the jury and that is preserved. The case goes through other historical accuracy points basically, they dont make it. The point is to preserve the function of the jury and we do that. It is subject to control by the judge. 100 years of cases and the promulgation of the FRCP show that the Sup Ct has already ruled on this. Here the case could only have been decided on speculation and that isnt enough. whatever may be the general formulation, the essential requirement is that mere speculation be not allowed to do duty for probative facts, after making due allowance for all reasonably possible inferencesw favoring the party whose case is attacked whether it is applied under the demurrer to the evidence or on motion for directed verdict, cannot amount to a departure from the rules of the common law which the Amendment requires to be followed. If there is abuse in this respect, the obvious remedy is by correction on appellate review. The Dissents Black, Douglas, and Murphy point to this as a continuation of the gradual process of judicial erosion which in one hundred fifty years has slowly worn away a major portion of the essential guarantee of the Seventh Amendment. They talk about how directed verdict came about as a concept. Also lay out the scintilla rule. They think that cases which could be decided a different way are getting directed verdicts because we have changed the standard to substantial evidence as apposed to any evidence. The rule that a case must go to jury unless there was no evidence was called the Scintilla Rule. A verdict should be directed, if at all, only when, without weighing the credibility of the witnesses, there is in the evidence no room whatever for honest difference of opinion over factual issue in controversy. P. 597. A directed verdict does not violate the 7th Amendment. A motion for this can be made any time before the case is submitted to the jury, and then renewed after the verdict comes back Hoskins points out that there are three times, as a practical matter when you would want to make them. When the other side rests and has

presented all their evidence, before it goes to jury, and after the verdict is rendered (before limitations). You should always raise it, even if you know you wont win, but dont waste judges time, you just want it there for the record and for appeal purposes. Otherwise you waive it malpractice. The standard is that no reasonable jury could find for the non-movant. Black dissents here wants to preserve jury rights, here we overturned jurys fact finding. You cant take facts from jury. At common law all you can do, is move for a new trial to get rid of jury, or file a demurrer (on which basis you can be totally screwed if the judge decides against you on a demurrer at this point, then your case is over) Note 2, p 598. the second clause of the 7th Amendment concerns the scope of the limitations that can be placed on performance of the jurys function Galloway about this. On page 591, Rutledge justifies: if the intention is to claim generally that the Amendment deprives the federal courts of power to direct a verdict for insufficiency of evidence, the short answer is the contention a has been foreclosed by repeated decisions made here consistently for nearly a century. Practice and Rule 50 make it ok to forgo jury trial when there isnt enough evidence. This answers the question in Note 3. Justice Black argues that the majority improperly adopts a substantial evidence standard he is in favor of the scintilla rule (the derogatory term) which says that in order to have directed verdict there has to be NO evidence at all on the other side (which is the historical basis) Rutledge thinks you have to look at what you have in a specific case. Just dont let it go to jury when there is no evidence. Pages 599-600, talks about Constitutionality of judgment as a matter of law and how judgment n.o.v. has been ruled unconstitutional and then came back kind of. Good read. Page 593, what?

2. Pp. 506-581

B. SEVENTH AMENDMENT RIGHT TO A JURY TRIAL

Rules: FRCP 38, 39 2 parts of the 7th Amendment 1. When there is a Right to Jury Trial, 2. Controls that the court may impose on a jury in a case in which the right is guaranteed (this also comes into play in questions of overturning jury questions). 7th Amendment was added to Bill of Rights in order to be a check on judges (they were concerned with impartiality, etc). After its adoption, it was thought that its interpretation was governed by the historical test, looking at the circumstances surrounding trials at common law in 1791. Historical test is hard to apply, because we have merged courts of law and courts of equity, so it can be difficult to find analogies Three arguments against jury trial 1. delay caused by use of jury, 2. juror incompetence, 3. juror prejudice. Advantages to jury trial 1. they bring in common sense, 2. they dont set precedent (so you can continue to apply facts, more than precedent.) 3. judges can stay impartial, 4. informs citizens of the laws and process, 5. keeps law real. DONT FORGET, IT DOESNT APPLY TO THE STATES.

1. Beacon Theatres, Inc v. Westover, 1959 -- page 509 We try equity and law together now, therefore, just because a claim is brought in equity, a counterclaim in law is still entitled to a jury in the same court. Beacon Theatres, Inc v. Westover, 1959 Black Fact: Beacon threatened to bring an antitrust action against Fox, based on Foxs contract granting an exclusive right to first run shows. Fox brought a declaratory relief action against Beacon (a preemptive ruling that they werent violating which would keep people from suing), Beacon counterclaimed seeking damages and demanded a jury trial (declaratory relief claim would make it equitable and therefore there would be no jury trial). Issue: Where a complaint alleges circumstances which traditionally have justified equity, would a court be justified in denying the defendant a trial by jury on all legal issues? Holding: No. Of course not. We used to have to keep them separate, but now we do it in the same court, we can entertain both types of action at the same time. That the initial suit is equity, is not reason to deny a jury. See Dissent judges shouldnt abuse discretion to make something that was in equity a question in law. P. 516 Cardozo quote, American Life Insurance v Stewart. 2. Dairy Queen v. Wood, Sup Ct, 1962 -- page 517 When equity and legal remedies are joined in one case, the legal claims are triable by the jury in federal courts under Amendment 7. Accounting, which would have been purely equity in 1791, can be tried at law because special master can explain it to jury and it can be awarded as damages. Dairy Queen v. Wood, Sup Ct, 1962 Black Fact: Wood was operating a Dairy Queen and defaulted. He continued to operate. Dairy Queen filed equitable suit to get an accounting of the damages owed, etc and injunction on trade mark usage. Wood wanted a jury trial even though cause of action in equity. District Court refused demand of jury trial, Ct of Appeals also said no. Issue: Is the right to a trial by jury in federal court lost as to legal issues when the legal issues are incidental to the equitable issues? Holding: No. The right to the jury trial must be preserved. Fed Rule 38a expressly reaffirms the 7th Amendment right to jury trial. You can only get rid of jury trial only under the the most imperative circumstances. Same idea, we can try them at the same time, so have a jury. Editors say, that this is to disapprove of people circumventing jury trials by bringing suits in equity. Preserving right to a jury trial doesnt mean making sure people get a jury if they would have had one in 1791 and dont if they wouldnt have. We want to preserve the underlying theory in 1791 you got a jury if there was an adequate remedy at law, if not, it went to equity. So in cases now which would have gone to equity then, if we have a adequate remedy at law now, then they should have a jury. QUOTE ON PAGE 521 about freezing juries. (careful with declaratory judgment, under rule 57) Both these cases gave a jury where they wouldnt have been one in England in 1791. In Dairy Queen it is because the special master rule (53) changes reason not to have a jury (special master could calculate damages and explain to the jury), in Beacon it is because we merged law and equity (the same ability to use the law to harass in equity no longer

exists Rule 41 once you dismiss a claim it is much harder to bring it again, one shot deal, not so easily abused as before). Page 516, dissent Beacon, the old rule on law and equity distinctions in these kind of questions. Rule 57 you can go for declaratory judgment even if there is another remedy p. 522, note 5 Rule 38 Jury Trial of Right, Rule 39 Trial by jury or by the court. Note 6. p 522. Historically, if the legal issues was incidental to the equitable issue, it would be considered in the court of equity. In Dairy Queen, they asserted that we dont do this anymore, but we sometimes do. Page 523, the clean up doctrine. Redish 7th A right to jury trial, a study in the irrationality of rational decision making, 70 nw u l rev 486,496 (1975) The Clean Up Doctrine Some made the argument in response to DQ that legal issues might lose their jury when those issues are characterized as incidental to equitable issues. The court said our previous decisions make it plain that no such rule may be applied in the federal courts. That isnt really true. The clean up doctrine has a long history, like I care, but they have done it forever, I guess for efficiency reasons, or whatever. Then the Sup Ct did it after DQ in Katchen v. Landy, where they rejected a jury trial right because the legal issues were incidental to the bankruptcy one. So how to distinguish DQ and Katchen. (probably because in DQ they werent incidental), but the court in Katchen said that BQ and Beacon didnt involve a specific statutory scheme contemplating the prompt trial of a disputed claim without the intervention of a jury. So you can balance the right to a jury trial against the need for governmental convenience? Hmph. Ross v. Bernhard, Sup Ct, 1970, page 524 White Facts: Lehman Brothers were brokers for the Lehman Corp and controlled the corporation through an illegally large representation on the board of directors. Ross, a shareholder in the corporation, brought a derivative action for damages resulting from Lehman Brothers negligence and breach of fiduciary duties. Ross demanded a jury trial on the issue of the claims made on behalf of the corporation. Issue: Is the right to jury trial available in a shareholders derivative suit? Holding: Yes. The 7th A preserved the right to jury trials not only in those at common law but in all those dealing with legal rights. So derivative actions were in equity before. Now they are at law, because the remedy was legal. When you have a normal case with both legal and equitable claims, a jury trial should be granted on the legal issues, thus where the derivative suit deals with legal issues on behalf of the corp, it would require a jury trial since equity is available only when no adequate remedy at law. Under the FRCP there is only one action (legal and equitable having been merged an all) so if the plaintiff can sue on behalf of the corp, then a jury trial is required. The federal rules, by merging, did away with the necessity of having a corporations claims presented only by the corporations director s and not by one of its shareholders. Stewart dissents the 7th A preserves jury trials only in those actions in which the right existed at common law. The federal rules grant juries where required by the 7th. The two together cant extend jury trials to actions where there wasnt one at common law. The merger of law and equity has apparently extended a right to jury trial in cases which essentially involve equitable claims (except in derivative suits, where a plaintiff has no real choice as

to his status and the claims he must make). This is largely because the plaintiff can basically decide if he wants a jury or not by framing his pleadings a certain way. In the case they point out that the 7A question depends on the nature of the issue to be tried rather than the character of the overall action here whether the guy can sue on behalf is an equitable issue and should be decided as such, but the rights actually advanced and the claim are legal so they should have a jury. N and Q 2. In footnote 10 they mention that the practical abilities and limitations of juries is one of four factors in determining the legal nature of an issue. This had only really been thought to have been true before in accountings. Some prof on 532 thinks that this is great because it means that precedent is dead so maybe we can stop dealing with this preserve crap. Woo hoo. 4. stuff about parklane and granting CE to a bench trial and how that in effect denies jury, but suck it up. 5. But, in Lytle, the Sup Ct refused to extend the reach of parklane and precluded according collateral estoppel effect to a district courts determinations of issues that are common to both equitable and legal claims where the court resolved the equitable claims first solely because it had erroneously dismissed the legal claims. 3. Curtis v. Loether, Supreme Court, 1974 page 533 The 7th Amendment of the Constitution applies to actions enforcing statutory rights upon demand if the statute creates legal rights and remedies enforceable in an action for damages in the ordinary court of law. If you have a legal and an equitable claim/cause of action, then you defer to the legal cause. If there is a relief requested which could be reasonably be called damages then it is legal and you go to jury. There is a clear trend toward jury trials. Marshall and Black are both Jury proponents $ isnt enough to make it a legal relief back pay, etc, they consider not legal (although I think that redish said that that is stupid). Curtis v. Loether, Supreme Court, 1974 Marshall Facts: Curtis tried to rent an apt from the Loethers, she said that they wouldnt rent to her because she was black. So she brought an action under 812 of the 1968 Civil Rights Act to redress violations of Title VIII. The act provides that the Court can grant, as appropriate, permanent or temporary injunctions or restraining order and/or damages. Issue: If the statutory right under which you are suing allows for both equitable and legal remedies, do you have the right to a jury trial? Holding: Yes. Regardless of crap about what a jury trial meant in 1791. Whatever doubt may have existed should now be dispelled. The Seventh Amendment does apply 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.

N and Q 2. probs with characterizing back pay as equitable.. 3. there is generally no recognized right to a non-jury trial. Tull v. U.S., Sup Ct 1987, 539 Brennan Facts: Tull was sued by the Government for illegal waste dumping in violation of the Clean Water Act. Tull requested, and was denied, a jury trial. The court refused and, after a bench trial, awarded 75,000 plus fines. This was affirmed and then Sup Ct took it. Issue: In a civil suit under the Fed Clean Water Act, is a entitled to a jury trial as to liability? Holding: Yes. In a civil suit under the FCWA, a is entitled to a jury trial as to liability. Under the 7th, a right to jury is guaranteed for suits at common law. In actions based on statutes, courts often indulge in searches for antiquated causes of action, seeking a common law analog to the statutory cause of action to decide whether a right to jury trial exists. But, this emphasis is misplaced. It is the remedy sought, not the cause of action, that dictates whether a statutory action comes within the ambit of the 7th. Here they wanted damages, that is like damages back in the day, so he gets a jury trial (for liability, not damages) first, we compare the statutory action to 218th century actions brough in the courts of England prior to the merger of the courts of law and equity. Second we examine the remedy sought and determine whether it is legal or equitable in nature. Scalia dissents, a right to jury trial on liability by necessity involves a right to jury trial as to damages. The test rejected by the Court has been called the historical test. As described by the Court, it involved reaching back into early common law causes of action to see if the statutory action has an analog. The test approved is also historically based but relates to remedy, not right of action. N and Q 2. I dont know the answer? 4. In some case, the Court concluded that although the statutory right sued about had not itself existed at common law, historical analogues did exist, that those analogues were like at law, that the general rule is that monetary relief is legal, and that statutory damages is usually looked at as legal, and therefore there was a jury. 4. Teamsters Local No. 391 v. Terry, Supreme Court, 1990 -- page 541 An employee who seeks relief in the form of back pay for a Unions alleged breach of its duty of fair representation has a right to a trial by jury. Marshall is in favor of the jury. His reasoning is that he looks at the rights asserted (nature of the cause of action), and the remedies. For rights, in this case, he uses the trust analogy, and for remedies, he looks at why a jury trial (here because there are money damages). Look at remedy and cause. Brennan All about remedies. He wants a cursory look at analogies. He makes an exception for administrative proceedings (no jury). Look at remedy. Kennedy All historical. Look at the cause of action. Stevens Basically seems agree with Marshall, but just thinks that Marshalls look for analogies is too exhaustive and complicated.

Exceptions for administrative proceedings p 556, notes from 10/17

Teamsters Local No. 391 v. Terry, Supreme Court, 1990 Marshall Facts: Terry and some other guys were truck drivers, and they were involved in a collective bargaining agreement they felt that they got shafted in the negotiations. The Union was not interested in their complaints. They wanted back pay and benefits (I think). They sued under Unions alleged breach of duty of fair representation. Issue: Does an employee who seeks relief in the form of backpay for a unions alleged breach of its duty of fair representation has a right to trial by jury trial? Holding: Yup. Marshall compared this to various analogous situations which existed in 1791 in England to determine if a jury trial was ok. Also looked to the remedies sought, and determined that it was a cause at law, which is the kind of cause that usually gets a jury trial as under the 7th Amendment. Back pay would normally be restitution under Title VII, but Congress hasnt announced that that is to be true of breach of duty of fair rep also, so we can look at the fact that it is money and money usually equals damages at law considering monetary damages to be equitable is the exception. (2 step test look at historical, and then look at remedy sought. The second being more important, it looks like) Brennan, concurrence Just look at the relief sought. The historical breakdown was based on relief anyway. This would simplify. Stevens, concurrence This is a civil suit, so they should have a jury. Look at fact pattern and try to figure out what is going on, but dont try to find an exact match. Kennedy, dissent -- Dont look at remedy, look at analogy, here this is like breach of trust, and so therefore there should be no jury. We have to look at the 18th century cases. The Right to Jury Trial in Statutorily-Created Administrative proceedings. NLRB denied jury trial because it was an administrative proceeding and the back pay was incidental to the equitable relief. (clean up doctrine). Also, administrative things were unknown at that time. Atlas Congress was allowed to assign OSHA claims to administrative agency. They rejected the argument that at cases in which public rights were being litigated (where Govt sues in its sovereign capacity to enforce public rights created by statutes within the power of Congress to enact) the 7th A doesnt prohibit Congress from assigning factfinding function and initial adjudication to an administrative form with which the jury would be incompatible. They also said that the 7th A didnt intend to choke the already crowded courts, they can assign things that would otherwise get a jury to an administrative body to avoid it this would mean that Congress could utterly destroy the right to a jury trial by always providing for administrative stuff. White responded by saying that this holding was only true for cases of public rights private torts etc were not at all implicated. Also historically your ability to get a jury depended lots on what forum you were in .. so there. N and Q 4. They imply that this incompatibility that White refers to about jury trials and administrative proceedings, amounts to a balancing test for th e7th A against competing governmental interests. 5. some prof thinks that the problem here is that they relied on decisions from 1856, and missed out on some development stuff that went on. unusual

Granfinanciera S.A. v. Nordberg, Sup Ct, 1989, page 559 Brennan Facts: After Craig and Sanborn filed a petition for reorganization under Chap 11 of the Bankruptcy Code, Nordberg (P) the bankruptcy trustee, filed suit against Granfinanciera (D). The suit alleged that G had received a large sum of money from chase and sanborns corp predecessor within on year of the date its bankruptcy petition was filed, without giving consideration or a reasonably equivalent value in return. Nordberg (P) sought to recover damages, costs, expenses, and interest. The district court referred the proceedings to the bankruptcy court. G requested a trial by jury on all issues so triable. The Bankruptcy judge denied the request. Following a bench trial, the court entered judgment for Nordberg. The district court affirmed as did the C Ap. Issues: When sued by the trustee in bankruptcy to recover an allegedly fraudulent monetary transfer, does a person who has not submitted a claim against a bankruptcy estate have a right to a jury trial? Holding: Yes. When sued by the trustee in bankruptcy to recover an allegedly fraudulent monetary transfer, a person who has not submitted a claim against a bankruptcy estate has a right to a jury trial. Ns fraudulent conveyance action plainly seeks relief traditionally provided by law courts having both legal and equitable dockets. Unless Congress has withdrawn jurisdiction over that action by courts of law, the 7th A still guarantees a jury trial here, upon request. Congress may not deprive litigating parties of the guarantee of a jury trial, unless a legal cause of action involves public rights, however the federal government need not be a party for a case to revolve around public rights. A bankruptcy trustees right to recover a fraudulent conveyance is more accurately characterized as a private rather than a public right. Because G has not filed claims against the estate, Ns fraudulent conveyance action does not arise as part of the processes of allowance and disallowance of claims. Congress cannot therefore divest G of its right to a trial by jury. Congress can create new statutory public rights and assign their adjudication to an administrative agency without no jury, but they cant strip parties contesting matters or private right of their constitutional right toa trial by jury. Legal claims are not magically converted into equitable issues by their presentation to a court of equity, nor can Congress avoid the 7A by mandating that traditional legal claims be brought there or taken to an administrative tribunal. I didnt actually read this case, I might need to. N and Q 4. There are lots of questions about the ability of non Art III courts to have juries. 5. In a Redish article it is argued that the courts exclusion of the jury trial right from most cases of congressional transfer of adjudication to a non-art III forum can be rationalized only by means of a principle of functionalism. Under this principle, the court allows the congress to conclude that the needs of a particular legislative scheme require adjudication without jury trial. The Court does this, despite its assumption that absent such congressional action, the 7th A would dictate the existence of the jury trial right. Judicial revocation of an otherwise applicable constitutional right solely because of a congressional judgment of incompatibility of that right with a legislative scheme effectively inverts fundamental precepts of American constitutional theory. Complex Cases and the Right to Jury Trial It has been argued that there should be a complexity exception to the 7A right to jury trial for complex litigation. This is intimated by footnote 10 of Ross. But this isnt in the text, but couldnt you argue that it violates the 5th A right to due process. Some courts reject this, but point out htat the point of due process in jury determinations is to prevent erroneous decisions, if it gets really too hard to understand then maybe

When the 5th and 7th really are in conflict, the 5th should win here because the implications are less severe there. Such denial of jury trials should be confined to suits in which due process clearly requires a non jury trial this is a high standard. Preferable would not be enough. Then some other people (a court, probably) suggest that , while there is, they assume, a right to a competent fact finder, they also think that cases seem more complicated at first then they end up, also they think this is a new fangled thingy, and that it would be impossible to fashion a meaningful test to find such times when you should go with the 5th over the 7th. Some people say that there is a historically based exception. There are a couple more pages here 578-581 3. Pp. 658-665 Juror Impeachment of the Verdict: The rule in California is that affidavits of Jurors may not be used to impeach a verdict. There are two exceptions, however. 1 created by statute, 2 created by judicial decision. The problem involves the balancing of the two conflicting policies. It is, of course, necessary to prevent instability of verdicts, fraud, and harassment of jurors, and on the other hand, it is desirable to give the losing party relief from wrongful conduct by the jury. The dissent pointed out that the reasons against it are based on this doctrine that didnt allow voluntary confessions, and that has been long overruled in basically all American jurisdictions. Iowa has taken the lead in liberalizing this Mansfield rule. At least 12 jurisdictions have gotten rid of this rule. The Iowa rule is based upon the distinction between extrinsic or overt acts which may be corroborated or disproved, such as access to improper matter o ran illegal method of reaching a verdict, and instrinsi matters which inhere in the verdict itself and hence are known only to the individual juror, such as misunderstanding or prejudice. People v. Hutchinson, Sup Ct of Cali, 1969, page 659 Traynor Facts: Hutchinson was prosecuted for and convicted of drug possession. Subsequently, in support of a motion for a new trial, Hutchinson produced an affidavit from a juror to the effect that the bailiff had made remarks tending to pressure the jury into a guilty verdict. The trial court refused to consider the affidavit, ruling that a juror cannot impeach the verdict. The motion was denied. The State Sup Ct granted review. Issue: May jurors testify as to objective facts to impeach a verdict? Holding: Yes. Jurors may testify as to objective facts to impeach a verdict. The old rule was based on an English maxim that one cannot impeach. More recently, the justification for such a rule has been the discouragement of instability of verdicts and fraud. This has been seen as more important policy than prevention of the occasional injustice. This court, however, felt that individuals suffering such instances of injustice should have more consideration. When a juror testifies as to a matter capable of objective verification, the possibility of fraud is minimal. Therefore jurors should be able to impeach a verdict when the grounds for impeachment are objectively verifiable. Here the alleged remarks were, so the affidavit should have been considered. N and Q

1. the Delaval rule once a verdict is solemnly made and publicly returned it cant be changed otherwise people would follow juries around and harass them, private deliberation would become public, frankness and freedom of discussion would be ruined. 3. people worry about the finality of judgments. 4. The Iowa test was developed to balance the interests in the Delaval rule with the competing interests of far and accurate verdicts on the other. The prob with the test is understanding what is meant by inhere in the verdict. Usually that means matters that are personal to the juror thoughts, emotions, personal reactions. 5. There is an FR of Evidence 606b rule about how jurors cant testify about their personal mind/emotions stuff from during the trial when there is an investigation into a verdict. 6. There is a problem, do it. 7. everyone doing drugs and drinking was internal to the verdict and so they couldnt impeach. Also, judges cant talk to people after they have returned their verdict to see if they understood the instructions.

some other 600 pages too.

Hansberry v. lee, page 1182, when I get to it, look at that one too. Rule 20 Permissive Joinder of Parties A. Permissive joinder: Joinder under Rule 20, done at the discretion of the plaintiffs, is called "permissive" joinder. FRCP 20 allows two types of permissive joinder of parties: (1) the right of multiple plaintiffs to join together; and (2) a plaintiffs right to make several parties codefendants to her claim. [317 - 318] 1. Joinder of plaintiffs: Multiple plaintiffs may voluntarily join together in an action if they satisfy two tests: [317] a. Single transaction or occurrence: Their claims for relief must arise from a single "transaction, occurrence, or series of transactions or occurrences," and b. Common questions: There must be a question of law or fact common to all plaintiffs which will arise in the action.

2. Joinder of defendants: If one or more plaintiffs have a claim against multiple defendants, these defendants may be joined based on the same two tests as plaintiffjoinder. That is, claims against the co-defendants must: (a) arise from a single "transaction, occurrence, or series of transactions or occurrences"; and (b) contain a common question of law or fact. [317] a. At plaintiffs option: Joinder of multiple defendants is at the option of the plaintiff or plaintiffs. B. Jurisdiction in permissive joinder cases: [318 - 320] 1. Personal jurisdiction: Where joinder of multiple defendants is involved, the requirements of personal jurisdiction must be met with regard to each defendant individually. That is: [318] a. Service: Each D must be personally served; b. Contacts: Each D must individually fall within the in personam jurisdiction of the court (by having "minimum contacts"); and c. Long-arm limits: Each D must be "amenable" to suit. Since federal courts in diversity suits follow the long-arm of the state where they sit, if a potential co-defendant cannot be reached by the state long-arm, he cannot be part of the federal diversity action even if he has the requisite minimum contacts. (But in federal question suits, it doesnt matter that the state long-arm cant reach D.) 2. Subject-matter jurisdiction: There is no supplemental jurisdiction for Rule 20 joinder of multiple Ds; its not clear whether there is for multiple Ps. So in a case with no federal question, its clear that there has to be at least one P whos diverse with all Ds, and courts are split about whether its fatal that some P is a citizen of the same state as some D. [127 - 128] Example 1 (multiple Ds): P, from Mass., may not join as co-Ds D1 from New York and D2, from Mass, in a diversity action, because theres no supplemental jurisdiction for Rule 20 joinder of multiple Ds. Example 2 (multiple Ps): If P1 (from Mass.) and P2 (from N.Y.) sue D, from N.Y., courts are split as to whether the action can go forward as a diversity action. Some say that since the P1-D pair is diverse, supplemental jurisdiction kicks in, so it doesnt matter that P2 and D are not diverse. But other courts say that supplemental jurisdiction doesnt apply to Rule 20 joinder of multiple Ps, so that complete diversity (all Ps to all Ds) is required; in such a court, the action cant go forward because of the lack of diversity between P2 and D. Example 3 (multiple Ps and multiple Ds; no P diverse with all Ds): P1 (from Mass.) and P2 (from N.Y.) sue D1 (from Mass.) and D2 (from N.Y.) All courts agree that the case cant go forward as a diversity-only suit, because there is no P whos diverse with all Ds. Example 4 (multiple Ps and multiple Ds; at least 1 pair is diverse: P1 (from Mass.) and P2 (from N.Y.) sue D1 (from N.Y.) and D2 (from N.J.) Courts are split about whether suit can go forward based solely on diversity. Some say that since theres one P whos diverse with all Ds (i.e., P1), supplemental jurisdiction applies [see e.g., Stromberg Metal Works, 128], so P2 can be added. Other courts say supplemental jurisdiction does not apply to multiple Ps or multiple Ds, so the case cant go forward.

a. Aggregation: It is not clear whether multiple plaintiffs may aggregate their claims to meet the jurisdictional amount in a diversity case. If no plaintiff meets this amount, aggregation is not allowed. If one or more does, but others do not, it is not clear whether either the aggregation doctrine or supplemental jurisdiction will allow the less-than-$75,000 plaintiffs to be part of the action. i. Each defendant must meet: If the Rule 20 joinder involves multiple defendants, supplemental jurisdiction definitely does not apply to the claims against them, so each D in a diversity case must have claims against him equal to $75,000. B. Permissive Joinder of Parties Rule 20 Multiple plaintiffs could join only if they had joint interest. Join interest meant where they were joint promises on the same obligation or instrument, partners at the time of a contract, or joint owners of property that was allegedly injured by . s had to be joined if they were joint obligors, but not allowed to join if they were several obligors. The plaintiff could chose how to sue them, though. The nature of the rights or obligations is less important today. It is harder to join parties than claims, see rule 19. 20a allows joinder of multiple persons as parties if they assert any right to relief jointly, severally, or in the alternative (or such right is asserted against them) which comes from the same transaction and if the question of law or fact common to all the persons will come up in this law suit.

Rule 18 Joinder of Claims and Remedies A. Joinder of claims generally: Once a party has made a claim against some other party, he may then make any other claim he wishes against that party. Rule 18(a). (Example: P sues D, claiming that D intentionally assaulted and battered him. P may join to this claim a claim that D owes P money on a contract entirely unrelated to the tort.) [315] 1. Never required: Joinder of claims is never required by Rule 18(a), but is left at the claimants option. (However, the rules on former adjudication, especially the rule against splitting a cause of action, may cause a claimant to lose the ability to bring the unasserted claim in a later suit.) 2. Subject-matter jurisdiction not affected: Supplemental jurisdiction probably does not apply to a claim joined with another under Rule 18(a). Thus the requirements of subject-matter jurisdiction must be independently satisfied by the joined claim. However, usually there will not be a subject-matter jurisdiction problem for joinder of claims (since diversity will not be affected, and since P may add all claims together for purposes of meeting the $75,000 requirement, under the aggregation doctrine). A. Joinder of Claims -- Rule 18 At common law, plaintiff was usually not allowed to join different claims against the same unless both claims involved the same form of action. This common law thing is a good example of rigid formalism. 18a, in contrast, is completely permissive as to joinder. The claims need not even be related why require multiple law suits when they are already in court together. Stuff may not actually be tried together, however. Claims of fairness or convenience justifies separate treatment. Under rule 42b, a court can sever unrelated claims and make separate trials when it would be in furtherance of convenience or to avoid prejudice, or when separate trials would be conducive to expedition and economy. Kedra v. City of Philadelphia, US DC, E D of Penn, 1978 Kedra (P), suing for civil rights violations, joined parties and claims spanning a lengthy period of time. The fact that certain claims and parties relevant thereto span a lengthy period of time will not, in itself, prevent joinder. Insolia v. Philip Morris, Inc, US DC, E D of WI, 1999 Former smokers and their spouses were dined class an the s want to sever the claims into separate actions. The says that their joinder was improper under 20 because they dont arise from the same transaction or occurrence. A group of smokers who all smoked different cigs, quit for different reasons, and who are different ages do not have a claim that arises out of the same transaction or series of transactions enough to satisfy rule 20.

Rule 19 Joinder of Persons Needed for Just Adjudication C. Compulsory joinder: There are certain situations in which additional parties must be joined, assuming the requirements of jurisdiction can be met. Such joinder, specified by Rule 19, is called "compulsory" joinder. The basic idea is that a party must be joined if it would be uneconomical or unfair to litigate a claim without her. [320 - 325] 1. Two categories: There are two categories of parties who must be joined where possible: a. "Necessary" parties: The "less vital" group consists of parties: (1) who must be joined if this can be done; but (2) in whose absence because of jurisdictional problems the action will nonetheless be permitted to go forward. These parties are called "necessary" parties. See Rule 19(a). b. "Indispensable" parties: The second, "more vital" group consists of parties who are so vital that if their joinder is impossible for jurisdictional reasons, the whole action must be dropped. These are called "indispensable" parties. See Rule 19(b). 2. "Necessary" defined: A party is "necessary" and must be joined if jurisdictionally possible if the party is not "indispensable" (defined below) and either of the two following tests is met: [320] a. Incomplete relief: In the persons absence, complete relief cannot be accorded among those already parties; or b. Impaired interest: The absentee has an interest relating to the action, and trying the case without the absentee will either impair the absentees interest or leave one of the people already parties subject to multiple or inconsistent obligations. 3. "Indispensable" defined: If a party meets the test for "necessary" given in paragraph (2) above, but the partys joinder is impossible because of jurisdictional problems, the court has to decide whether the party is "indispensable." [321] a. Consequence of indispensability: If the party is "indispensable," then the action must be dismissed in that partys absence. b. Factors: When the court decides whether a party is "indispensable," the factors are: (1) the extent of prejudice to the absentee, or to those already parties; (2) the possibility of framing the judgment so as to mitigate such prejudice; (3) the adequacy of a remedy that can be granted in the partys absence; and (4) whether the plaintiff will have an adequate remedy if the action is dismissed. Rule 19(b). Example: P sues D, a bank holding some stock. P alleges that although the stock is registered solely in the name of X, P and X in fact co-own the stock. P and D are citizens of different states, but X is a citizen of the same state as P. X thus cannot be joined as a co-defendant, because his presence would destroy diversity. The issue is whether X is "necessary" or "indispensable." Held: (1) X is definitely a person who must be joined if feasible under Rule 19(a), because his absence will expose D to the risk of double obligation a judgment that P owns the stock will not bind X, who can later sue D for the

whole value of the stock; (2) X is in fact "indispensable" his presence is so important that the suit must be dismissed rather than proceed in Xs absence. [Haas v. Jefferson Bank] [323] 4. Jurisdiction: Where a non-party is one who must be "joined if feasible," the doctrine of supplemental jurisdiction does not apply to overcome any jurisdictional problems. So if the person who is sought to be joined as a defendant is not diverse with all plaintiffs, or if the claim against that would-be defendant does not meet the amount-incontroversy requirement in a diversity case, the joinder may not take place. [321] looks at question of whether certain persons not joined as parties have sufficient interest in the suit that they must be joined and whether, if they cannot be joined the suit will be allowed to proceed without them or must be dismissed. Hazard had three rules. 1. all persons who are interested in a controversy are necessary to a suit on that controversy so that a complete disposition could be made. 2. joinder of necessary parties is excused when it is impossible, impractical, or involves undue complications, 3. a person who is not a party, unless represented by one who is a party, is not bound by a decree. This is where the indispensable party was invented. The idea was that the court should do complete justice or none at all. There was a fallacy here that just because a court does not have jurisdiction over an absentee, it cannot act with respect to those before it. ?? American procedural law has embraced this fallacy by categorizing parties as necessary and indispensable based on the nature of their rights (common, joint, or united in interest). And applying these rules rigidly. Finally, rule 19 made the possession of a join interest the dividing line between permissive and compulsory joinder, and without providing guidelines, whent on to state that an action could not proceed if persons with joint interests were no joined unless they were not indispensable. This was altered in 1966. NOW: 19a, describes those persons who are needed for just adjudication and provides that they will be joined if feasible. If someone who qualifies for (a) cant be joined (he would destroy diversity, has insufficient contacts with the forum to permit personal jurisdiction, or venue would be improper), then you have to analyze four factors to decide if it is doable. Under the new 19, a necessary, b indispensable, but these terms dont carry the exact meaning they used to. 19 is pragmatic and functional, this often requires a case by case adjudication.

Janney Montgomery Scott, Inc, v. Shepard Niles, Inc. US C AP, 3rd Cir, 1993 Shepard Niles (D) moved to dismiss for failure to join Underwood, its parent and co-obligor to the contract Janney (P) sued on, on the ground that Underwood was both necessary and indispensable under 19. If a contract imposes joint and several liability on its co-obligors, complete relief can be granted in a suit when only one of the co0obligors has been joined as a defendant. The Rule 19b determination whether to proceed or dismiss.

If a party is necessary, that means they have to be joined if they can. If they are only necessary, and they cant be joined, than it is ok not to. If they are indispensable, and they cant be joined, then dismiss. 19b is a second best determination if necessary parties cant be joined cause of subject matter, venue, or personal jurisdiction, should the court proceed? The four factors of 19b are not exclusive of the factors in 19a, and there is some overlap. Eg 19a, would interests be impaired, would there be inconsistent obligations: these indicate 19b a judgment in a persons absence might be prejudicial. The second factor under 19b looks at the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided. -- gave example of a place where prejudice was claimed to absent ( a court could have refused to order immediate payment on judgments pending completion of other suits, so that they wouldnt exhaust an insurance payment. (here the plaintiffs agreed to limit their claims to the amount of the policy). The fourth factor under 19b requires a court to consider whether the plaintiff will have an adequate remedy if this suit is dismissed. this would lead to filing in another court (state court, maybe) where all parties could be together. Maybe courts should just do a forum non conveniens thing instead of dismissing under 19b? can they do that? 4. 1966 Advisory Committee Note, Rule 19 (FRCP Pamphlet, pp. 253-259)

Rule 14 Third-Party Practice A. Impleader right generally: A defendant who believes that a third person is liable to him "for all or part of the plaintiffs claim against [the defendant]" may "implead such a person as a third party defendant." FRCP 14(a). [368] Example: Victim is injured when a van driven by Employee and owned by Employer runs her over. Victim brings a diversity action against Employer, on a respondeat superior theory. Employer believes that if Employer is required to pay a judgment to Victim, Employee, under common law indemnity rules, will be required to reimburse Employer. Instead of waiting until the end of the Victim-Employer suit, Employer may instead "implead" Employee. That is, Employer (the third-party plaintiff or TPP) brings Employee into the action as a "third party defendant" (TPD), so that in a single action, the court may conclude that Employer owes Victim, and that Employee owes indemnity to Employer. B. Claim must be derivative: For a third-party claim to be valid, the TPP may not claim that the TPD is the only one liable to the plaintiff, and that he himself is not liable at all. (Examples: Impleader works for claims for indemnity, subrogation, contribution and breach of warranty, since as to each of these, the TPD is liable only if the TPP is liable.) [368] 1. Alternative pleading: However, the TPP is not precluded from claiming in an alternative pleading that neither she nor the TPD is liable. 2. Partial claim: Also, the TPP may allege that only a portion of the recovery is due from the TPD. (Example: If TPP claims that TPD is liable for "contribution" rather than "indemnity," TPP will recover from TPD at most only part of any judgment that TPP owes to P.) C. Leave of court: Leave of court is not necessary for impleader, as long as the TPP serves a summons and complaint on a TPD within 10 days after the time the TPP served his answer to Ps claim. FRCP 14(a), second sentence. After this 10-day period, however, the courts permission to implead is necessary. [368] D. Impleader by plaintiff: Just as the defendant may implead a TPD, so a plaintiff against whom a counterclaim is filed may implead a third person who is liable to him for any judgment on the counterclaim. FRCP 14(b). [369] E. Jurisdictional requirements relaxed: Both personal and subject-matter jurisdictional requirements are relaxed with respect to the third-party claim: [369] 1. 100-mile bulge: Service of the third-party complaint may be made anywhere within the 100-mile bulge surrounding the courthouse, even if the place of service is outside the state and is beyond the scope of the local long-arm. FRCP 4(k)(1)(B). [369] Example: In the above Victim/Employer/Employee example, if the suit is pending in the Southern District of New York (Manhattan), Employee could be served in Newark, New Jersey, even if the New York State long-arm would not reach him. 2. Supplemental jurisdiction: A third-party claim falls within the courts supplemental jurisdiction. Thus the TPDs citizenship is unimportant, and no amountin-controversy requirement must be satisfied. [369] 3. Venue: Similarly, if venue is proper between the original parties, it remains valid regardless of the residence of the TPD. [369] F. Additional claims involving the TPD: [369 - 371]

1. Claim by TPD: Once a TPD has been impleaded, she may make claims of her own, including: (1) counterclaims against the TPP (either permissive or compulsory); (2) cross-claims against any other TPDs; (3) any claim against the original plaintiff, but only if it arises out of the same transaction or occurrence that is the subject of the plaintiffs claim against the TPP; (4) any counterclaim against the original plaintiff, if the original plaintiff has made a claim against the TPD; and (5) impleader claims against persons not previously part of the suit, if these persons may be liable to the TPD for all or part of the TPPs claim against the TPD. [369] a. Supplemental jurisdiction: All of the above kinds of claims, except permissive counterclaims, fall within the courts supplemental jurisdiction, and thus need no independent federal subject-matter jurisdictional grounds. b. Defenses: A TPD may also raise against the original plaintiff the same defenses that the original defendant could have raised. 2. Claims by original plaintiff: The original plaintiff may assert any claims against the TPD arising out of the transaction or occurrence that is the subject-matter of that plaintiffs claim against the TPP. [370] a. Jurisdiction: A claim by a plaintiff against the TPD must independently satisfy jurisdictional requirements supplemental jurisdiction does not apply in this situation. (Example: In a diversity case, the original plaintiffs claim against the TPD must be supported by diversity between the plaintiff and the TPD, and that claim must satisfy the $75,000 amount in controversy.) G. Dismissal of main claim: If the main claim is dismissed before or during trial, the court has discretion whether to hear the third-party claims relating to it (assuming that these are within the courts supplemental jurisdiction, as they will be in the case of an ordinary impleader claim). [371]

E. Impleader (Rule 14) It refers to the right of a to bring in a new party who may be liable for plaintiffs claim against it, under what we now call third party practice.

Clark v. Associates Commercial Corp, US Dist Ct, Kansas, 1993. page 252 After Clark (P) sued Associates Commercial Corp for damages to her person and property when Associate employee repossessed Clarks tractor, Associates brought a third party complaint seeking indemnity against the employee and the two assistants who had effected the repossession. Under 14, impleader is proper only if the 3rd party defendant is or may be liable to the third party plaintiff for all or part of the plaintiffs claim against the third party plaintiff.

Rule 13 Counterclaim and Cross-Claim A. Federal Rules generally: A "counterclaim" is a claim by a defendant against a plaintiff. The Federal Rules provide for both "permissive" and "compulsory" counterclaims. FRCP 13. [307] 1. Permissive counterclaim: Any defendant may bring against any plaintiff "any claim ... not arising out of the transaction or occurrence that is the subject matter of the opposing partys claim." Rule 13(b). This is a "permissive" counterclaim. This means that no claim is too far removed from the subject of Ps claim to be allowed as a counterclaim. [307] Example: P sues D in diversity for a 1989 car accident. D counterclaims for breach of a 1990 contract having nothing to do with the auto accident. Ds counterclaim is allowed, and is a "permissive" one because it has nothing to do with the subject matter of Ps claim against D. 2. Compulsory counterclaim: If a claim does arise "out of the transaction or occurrence that is the subject matter of the opposing partys claim...," it is a "compulsory" counterclaim. See Rule 13(a). [308] a. Failure to state compulsory counterclaim: If D does not assert her compulsory counterclaim, she will lose that claim in any future litigation. [308] Example: Cars driven by P and D collide. P sues D in diversity, alleging personal injury. D makes no counterclaim. Later, D wants to bring either a federal or state suit against P for property damage sustained by D as part of the same car accident. Neither federal nor state courts will permit D to bring this action, because it arises out of the same transaction or occurrence as Ps original claim the car accident and is thus barred since D did not assert it as a compulsory counterclaim in the initial action. i. Exceptions: There are a couple of main exceptions to the rule that any claim involving the same "transaction or occurrence" as Ps claim is compulsory: (1) claims by D which for "just adjudication" require the presence of additional parties of whom the court cannot get personal jurisdiction; and (2) claims by D in which the suit against D is in rem or quasi in rem (assuming D is not making any other counterclaim in the action). See Rule 13(a), including 13(a)(2). b. Default by plaintiff: If D asserts a counterclaim (whether compulsory or permissive), and P neglects to either serve a reply or make a motion against the counterclaim, a default judgment may be entered against P on the counterclaim. Rule 55(d). [308] B. Claims by third parties: A counterclaim may be made by any party against "any opposing party." Rule 13(a), Rule 13(b). [309] 1. By third-party defendant: Thus a third-party defendant may counterclaim against either the original defendant, or against the original plaintiff. (In the latter case, a claim by the plaintiff against the third-party defendant must first have been made.) [309] 2. By plaintiff: If D has counterclaimed against P, P may then assert a "counterclaim" against D, even though P has already asserted "regular" claims against D. In fact, Ps "counter-counterclaim" will be compulsory if it relates to the same subject matter as Ds

counterclaim. (Example: P sues D about a car accident. D sues P for breach of an unrelated contract. Any claims P might have against D relating to that same contract are now compulsory counterclaims.) [309] 3. New parties: New parties to a counterclaim can be brought into a suit. Rule 13(h). (Example: P sues D for an auto accident. D believes that P and X conspired to ruin Ds business, in an unrelated action. D may not only counterclaim against P for this conspiracy a permissive counterclaim but D may bring in X as a new party to Ds counterclaim.) [309] C. Subject-matter jurisdiction: The subject-matter jurisdiction treatment of counterclaims depends on whether the counterclaim is compulsory or permissive: [310] 1. Compulsory counterclaim: A compulsory counterclaim in a federal action is within the federal courts supplemental jurisdiction. Therefore, it requires no independent subject-matter jurisdictional grounds. Example: A, a New Yorker, sues B, from Massachusetts. The suit relates to an accident involving cars driven by A and B. B, in a counterclaim, asserts that A was at fault, and that the accident caused B $30,000 of damages. As car was owned by C, a Massachusetts resident not yet in the action whom B would also like to sue. B may bring C in as an additional party to his counterclaim. Because supplemental jurisdiction applies to Bs compulsory counterclaim, and even to the entrance of the new party defending that counterclaim, the fact that B and C are not diverse, and the fact that Bs counterclaim does not meet the jurisdictional amount, are irrelevant. 2. Permissive counterclaims: A permissive counterclaim is probably not within the courts supplemental jurisdiction, and must therefore independently satisfy the requirements of federal subject matter jurisdiction. (Example: Same facts as above example, except that now, Bs claim against A and C does not relate to the same transaction as As claim against B. The absence of diversity as between B and C, and the fact that Bs claim does not meet the jurisdictional amount, are both fatal, so Bs permissive counterclaim may not go forward against either A or C.) D. Statute of limitations for counterclaims: [311] 1. Time-barred when P sues: If Ds counterclaim was already time-barred at the time P sued, few if any federal courts will allow D to make an affirmative recovery. Some courts will allow the counterclaim to be used as a defense; the court is more likely to do this if the counterclaim is compulsory than if it is permissive. 2. Time-barred after P sued: Where the statute of limitations on the counterclaim runs after P commenced the suit, but before D asserted his counterclaim, a federal court will probably allow the counterclaim. [Azada v. Carson] F. Counterclaims and cross-claims (Rule 13) 13a is a sort of rule mandated RJ. It bars a party from recovering on a claim which at the time of serving the pleading, the pleader had against any opposing party, if it arose out of the transaction or occurrence that was the subject matter of the opposing partys claim. 13b is a liberal permissive counterclaim rule, allowing a party to bring a counterclaim if it has one against the opposing party. A permissive counterclaim is, by definition, one that doesnt arise out of the same T or O. It might not make the most convenient trial package, but

is convenient with rule 18s allowance of joinder of claims that arent related. If is really bad they can severe or separate the trial (42b). 13g, cross claims, authorizes a claim against a co-party. It is limited to claims arising out of the same T or O of the original action (or counterclaims)s subject mater. 13h, allows for the addition of claims that can result in addition of parties if they can be sued as additional parties to the counterclaim or cross-claim in accordance with the provisions of 19 and 20. this means that so long as a current party to the litigation can assert a counterclaim or cross-claim under Rule 13, it can add parties to that claim provided that its claim against the added parties arises from the same T or series thereof within the meaning of 20.

3. Go over this problem, I think A would sue B B would counterclaim for faulty vehicle against A A would implead D B would join/cross-claim C C would implead M A or B would join O as a O would implead/cross-claim B Not Sure

G. Interpleader (Rule 22 and 28 U.S.C.A. 1335) A. Definition: Interpleader allows a party who owes something to one of two or more other persons, but is not sure whom, to force the other parties to argue out their claims among themselves. The technique is designed to allow the "stakeholder" to avoid being made to pay the same claim twice. [360] Example: X and Y both claim a bank account at Bank. Y demands the money from Bank. If Bank had to litigate against Y, and then possibly defend a second suit brought by X, Bank might have to pay the amount of the account twice. By using the interpleader doctrine, Bank can force X and Y to litigate between themselves as to the ownership of the account, with Bank paying only the winner. 1. Federal practice: In federal practice, two kinds of interpleader are allowed: a. "Statutory interpleader" under 28 U.S.C. 1335; and b. "Rule interpleader" under FRCP 22. Note: See Table 8-3, "Comparison: Statutory and Rule Interpleader" [365]. B. Federal statutory interpleader: 28 U.S.C. 1335 allows a person holding property which is or may be claimed by two or more "adverse claimants" to interplead those claimants. [362 364] 1. Jurisdictional benefits: The main benefits to the stakeholder from using statutory interpleader instead of Rule interpleader relate to jurisdiction and service: [362] a. Nationwide service: Nationwide service of process is allowed in statutory interpleader actions. See 28 U.S.C. 2361. Thus the court where the stakeholder files a statutory interpleader suit may serve its process on any claimant, no matter where in the U.S. that claimant resides or is found. b. Diversity: Diversity is satisfied as long as some two claimants are citizens of different states. (Example: Two New York residents and a Californian all claim the proceeds of a particular insurance policy. Since either New Yorker and the Californian form a diverse pair, the diversity requirement for statutory interpleader is satisfied. The citizenship of the insurance company is irrelevant.) c. Amount in controversy: The property which is the subject of the suit must merely exceed $500 in value, in contrast to the usual $75,000. 2. How commenced: A statutory interpleader suit is commenced by the stakeholder. The stakeholder must, to begin the suit, deposit into court the amount of the property in question, or post a bond for that amount. [363] a. Right to deny debt: Even though the stakeholder must deposit the amount of the property with the court, he is not estopped from claiming at trial that he does not owe the money to any claimant at all. [363] 3. Restraint on other suits: Once the statutory interpleader suit is begun, the court may restrain all claimants from starting or continuing any other action, in any state or federal suit, which would affect the property. (Example: On the facts of the above example, the court could prevent the two New Yorkers and the Californian from starting any state action to collect on the policy.) [363 - 364]

C. Rule interpleader: FRCP 22 provides an interpleader remedy for any person who "is or may be exposed to double or multiple liability." This is so-called "Rule interpleader." The stakeholder may invoke interpleader by coming into court on his own initiative (i.e., as plaintiff), or by counterclaiming or cross-claiming as defendant in an action already commenced against him by one claimant. [364] 1. Jurisdiction: The main difference between statutory interpleader and Rule interpleader is that Rule 22 interpleader has no effect on ordinary jurisdictional and venue requirements. a. Complete diversity: Thus diversity must be complete between the stakeholder on one hand and all claimants on the other (assuming there is no federal question). (Example: Two New Yorkers and a Californian all claim a particular insurance policy, which is issued by a California-based insurer. Rule 22 interpleader cannot be used, because it is not the case that all claimants are of different citizenship than the insurer.) b. Service: Service of process must be carried out as in any other diversity action that is, within the state where the district court sits, or pursuant to the long-arm of the state. There is no "nationwide service of process" as in statutory interpleader. c. Amount in controversy: The $75,000 amount in controversy requirement must be met. 2. No deposit: The stakeholder is not required to deposit the property or money into the court (as she is in statutory interpleader). 3. Denial of liability: The stakeholder may "aver that the plaintiff is not liable in whole or in part to any or all of the claimants." FRCP 22(1). In other words, the stakeholder may deny liability. Interpleader is old in common law, but equity used it to permit a person faced with conflicting claims to a limited fund or property (the stake) to bring all the claimants into a single proceeding. This way the stakeholder could avoid the unfairness of inconsistent judgments or multiple liability that might result if each sued individually. Interpleader let a stakeholder afraid of separate suits, to institute his own action in which all claimants would litigate their claims simultaneously. The strict bill of interpleader was limited to four requirements (the meaning and purpose of which were never really clear): 1.The same thing, debt, or duty must be claimed by all parties against whom the relief is demanded (the parties against whom?) 2. all their adverse titles or claims must be dependent on or be derived from a common source. 3. The person asking the relief the plaintiff must not have or claim any interest in the subject matter. 4. He must have incurred no independent liability to either of the claimants; that is, he must stand perfectly indifferent between them, in the position merely of a stakeholder. I just dont understand the 1st. These were really limiting and not honored that often (except nominally). They got around it in equity by developing a bill in the nature of interpleader which allowed a stakeholder to claim all or part of the stake itself. The Sup Ct held in 1916 that this could only happen if all the claimants were personally served within the state, so it couldnt be for people from different states. So often businesses and

insurance companies were not able to do this and had to defend multiple suits in different states. Congress overruled this decision by passing a federal interpleader statute passed in 1917, revised in 1936 -- 1335 (statutory interpleader). A question remained as to whether federal courts retained their traditional equity jurisdiction over interpleader actions, resolved by Rule 22 which provided for interpleader action based on general fed court jurisdiction. This is called rule interpleader. So there are two sources, rule and statutory. They are pretty similar as to scope of remedy, but different in jurisdiction and venue. You can use either, but because of these differences, one party may not be able to use both.

State Farm Fire and Casualty Co. v. Tashire, Sup Ct, 1967, page 260 Fortas State Farm (P) insured three individual involved in a collision involving a Greyhoun bus and attempted to interplead all claimants. Insurance companies can invoke the federal interpleader before claims against them have been reduced to judgment. A party to multiparty litigation can only interplead the claimants seeking the funds of that party.

H. Intervention (Rule 24) A. Intervention generally: By the doctrine of "intervention," certain persons who are not initially part of a lawsuit may enter the suit on their own initiative. The person who intervenes is called an "intervenor." [356] 1. Two forms: In federal suits, FRCP 24 creates two forms of intervention: a. "Intervention of right" (Rule 24(a)); and b. "Permissive intervention" (Rule 24(b)). 2. Distinction: Where the intervention is "of right," no leave of court is required for the partys entry into the case. Where the facts are such that only "permissive" intervention is possible, it is up to the courts discretion whether to allow intervention. B. Intervention of right: [356 - 358] 1. Three tests: A stranger to an existing action may intervene "of right," under Rule 24(a), if she meets all of the three following criteria: [356] a. Interest in subject-matter: She must "claim an interest relating to the property or transaction which is the subject of the action"; b. Impaired interest: She must be "so situated that the disposition of the action may as a practical matter impair or impede [her] ability to protect that interest"; and c. Inadequate representation: She must show that this interest is not "adequately represented by existing parties." Note: Even if the outsider cannot meet one or more of these criteria, she may nonetheless automatically intervene under Rule 24(a) if a federal statute gives her such a right. (Example: The U.S. may intervene in any action involving the constitutionality of an act of Congress.) [356] Example: P (the U.S. government) sues D, a local Board of Education, charging that D has drawn school boundaries on racially-discriminatory lines. X, the parent of a black public school student attending Ds schools, wants to intervene. Probably Xs intervention will be of right, since X has an interest in the subject-matter, and his ability to bring his own action in the future will be compromised if the U.S. loses the case. X will have to show that the U.S. may not adequately represent Xs interest, which he can do by showing that the U.S. may be pursuing other objectives, such as settling a lot of suits quickly. 2. Jurisdiction: Independent subject-matter jurisdictional grounds are required for intervention of right in a diversity case. In other words, such intervention does not fall within the courts supplemental jurisdiction. [357] Example: P, from California, sues D, from New York, in a diversity suit. X, from New York, would like to intervene. Even if the court concludes that the requirements of intervention of right are met by X, X cannot intervene because there is no supplemental jurisdiction for intervention of right; after Xs intervention there would have to be complete diversity, and this would not be the case since X and D are both citizens of New York.

C. Permissive intervention: For a person to seek "permissive intervention," she merely has to have a "claim or defense" that involves a "question of law or fact in common" with the pending action. [358] 1. Discretion: Where the outsider seeks permissive intervention, it is up to the trial courts discretion whether to allow the intervention. The trial courts decision whichever way it goes is rarely reversed on appeal. 2. Jurisdiction: Like any intervenor of right, a permissive intervenor in a diversity case must independently meet federal subject-matter jurisdictional requirements. (Example: There must be diversity between the intervenor and all defendants.) [358] Intervention is pretty new It is a device for an outsider who has an interest in a lawsuit to voluntarily join as a party. It may often be someone who would have been joined but who wasnt because there wasnt personal jurisdiction. 24b recognizes that intervention may be useful to the court even if a party lacks the compelling interest of an intervenor of right. Permissive intervention is left to the discretion of the court.

Natural Resource Defense Council, Inc. v. United States Nuclear Regulatory Commission The American Mining Congress and Kerr McGee appealed the denial of their motion to intervene in an action brought by the Natural Resources defense Council (P) against the Nuclear Regulatory Commission (D) seeking a declaration that state-granted nuclear power operation licenses are subject to the requirement of filing an environmental impact statement and seeking an injunction of the grant of one such license by the New Mexico Environmental Improvement Agency. A party may intervene in an action under 24a2 if he has an interest upon which the disposition of that action will have a significant legal effect. Note: Definition of Interest in Rule 24a2 It applies when the applicant claims an interest relating to the property or transaction which is the subject of the action. What sort of interest is sufficient has been answered in three Sup Ct decisions that arent necessarily convergent: o Cascade Natural Gas took a broad interpretation of the interest required, including non-legally protected interests, such as economic concerns. o Donaldson v. United States way more narrow concept of interest: what is obviously meant there is a significantly protectable interest. o Trbovich v. Untied Mine a party who was not allowed, by statute to sue, was allowed to intervene (even though they shouldnt have been allowed to sue) kind of violates Donaldson, and they didnt mention it in the opinion. o Cascade focused on pragmatic or economic factors, in Donaldson the court refused intervention despite strong practical interest because there was no protectable interest o Because Sup Ct cases leave some uncertainty, several different approaches have emerged at the lower level. 5th cir what is required is that the interest be one which the substantive law recognizes as belonging to or being owned by the applicant. The real party in interest of 17a applies to intervenors as do the rules of standing. The question of whether the intervenors have to satisfy standing is unanswered. P. 280. An Il case has held (7th) that an opinion on something (even religious or political) is not enough to qualify one as an intervener. 12. 1966 Advisory Committee Note, Rule 24 (FRCP Pamphlet, pp. 272-274)

14. Class Actions: Rule 23 FRCP Summary of rules A. Definition: The class action is a procedure whereby a single person or small group of coparties may represent a larger group, or "class," of persons sharing a common interest. [330] 1. Jurisdiction: In the class action, only the representatives must satisfy the requirements of personal jurisdiction, subject-matter jurisdiction, and venue. (Example: P1 and P2 are the named co-plaintiffs who bring a diversity class action against D. There are 2,000 non-named class members. Only P1 and P2 must meet the requirements of diversity vis-a-vis D, so the fact that many non-named plaintiffs are citizens of the same state as D is irrelevant.) 2. Binding on absentees: The results of a class action are generally binding on the absent members. Therefore, all kinds of procedural rules (discussed below) exist to make sure that these absentees receive due process (e.g., they must receive notice of the action, and notice of any proposed settlement). 3. Defendant class: In federal practice, as well as in states permitting class actions, the class may be composed either of plaintiffs or defendants. The vast majority of the time, the class will be composed of plaintiffs. [331] B. Rule 23 generally: The federal procedures for class actions are spelled out in FRCP 23. [331] 1. Four prerequisites: Four prerequisites (discussed below) must be met before there is any possibility of a class action. 2. Three categories: Once these prerequisites are met, a class action will still not be allowed unless the action fits into one of three categories, represented by Rule 23(b)(1), 23(b)(2), and 23(b)(3). (See Table 8-2, "Class Actions" [331].) C. Prerequisites: Here are the four prerequisites which must be met before any federal class action is allowed: [331] 1. Size: The class must be so large that joinder of all members is impractical. Nearly all class actions involve a class of at least 25 members, and most involve substantially more (potentially tens of thousands). The more geographically dispersed the claimants are, the fewer are needed to satisfy the size requirement. [331] 2. Common questions: There must be "questions of law or fact common to the class." This is seldom a problem. [332] 3. Typical claims: The claims or defenses of the representatives must be "typical" of those of the class. This requirement of "typicality" is also rarely a problem. [332] 4. Fair representation: Finally, the representatives must show that they can "fairly and adequately protect the interests of the class." Thus the representatives must not have any conflict of interest with the absent class members, and they must furnish competent legal counsel to fight the suit. [332] D. Three categories: As noted, there are three categories of class actions, all of which must meet the four prerequisites listed above. They are covered in Rules 23(b)(1), 23(b)(2) and 23(b) (3). [334 - 335]

1. 23(b)(1) actions: The first of the three categories, 23(b)(1), applies to situations similar to the circumstances requiring the joinder of necessary parties under Rule 19. [334 - 335] a. Test: A class action is allowed under 23(b)(1) if individual actions by or against members of the class would create a risk of either: (a) inconsistent decisions forcing an opponent of the class to observe incompatible standards of conduct (Rule 23(b)(1)(A)); or (b) the impairment of the interests of the members of the class who are not actually parties to the individual actions (23(b)(1)(B)). Example: Taxpayers residing in City XYZ are unhappy with a municipal bond issue by XYZ. Some taxpayers want the issue declared invalid; others want merely to have the terms of the issue changed. If each taxpayer brought his own action, as the result of one suit XYZ might have to refrain from floating the issue altogether, but as the result of the other suit might just be forced to limit the size of the issue. XYZ thus faces a risk of incompatible standards of conduct. Therefore, a Rule 23(b)(1) action would be suitable on these facts. b. No opting out: Members of the 23(b)(1) class may not "opt out" of the class. Any absentee will therefore necessarily be bound by the decision in the suit. c. Mass tort claims: Courts are increasingly allowing use of the 23(b)(1) class action in mass tort cases, where there are so many claims that D may be insolvent before later claimants can collect. See the further discussion of this topic infra. Example: Tens of thousands of women may have been injured by breast implants manufactured by D. If each brings an individual suit, Ds financial resources may be exhausted, leaving nothing for those who bring suit later. A federal court might therefore hold that a 23(b)(1) action is suitable for determining, once and for all, whether D sold a defective device and whether it typically caused a certain type of medical injury. Each P would then have a separate claim on causation and damages only. [335] 2. 23(b)(2) actions: The second category, 23(b)(2), allows use of a class action if "the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or declaratory relief with respect to the class as a whole." In other words, if the suit is for an injunction or declaration that would affect all class members, (b)(2) is probably the right category. [336] a. Civil rights case: The main use of 23(b)(2) is for civil rights cases, where the class says that it has been discriminated against, and seeks an injunction prohibiting further discrimination. (Example: A class action is brought on behalf of all black employees of XYZ Corp., alleging that executives of XYZ have paid them less money and given them fewer promotions than white employees. The suit seeks an injunction against further discrimination, as well as money damages. This would be an appropriate suit for a 23(b)(2) class action.) b. No opt-out: Members of a 23(b)(2) class may not "opt out" of the class. See Rule 23(c)(3).

3. 23(b)(3) actions: The final type of class action is given in Rule 23(b)(3). This is the most common type. [336 - 337] a. Two requirements: The court must make two findings for a (b)(3) class action: i. Common questions: The court must find that the "questions of law or fact common to members of the class predominate over any questions affecting only individual members..."; and ii. Superior method: The court must also find that "a class action is superior to other available methods" for deciding the controversy. In deciding "superiority," the court will consider four factors listed in 23(b) (3), including: (1) the interest of class members in individually controlling their separate actions; (2) the presence of any suits that have already been commenced involving class members; (3) the desirability of concentrating the litigation of the claims in a particular forum; and (4) any difficulties likely to be encountered in the management of a class action. b. Securities cases: (b)(3) class actions are especially common in securities fraud cases, and in antitrust cases. c. Mass torts: (b)(3) actions are sometimes brought in mass tort cases (e.g., airline crashes) and mass product liability cases (e.g., mass pharmaceutical cases). But many courts still frown on (b)(3) class action status for such suits, because individual elements typically predominate. See supra. E. Requirement of notice: Absent class members (i.e., those other than the representatives) must almost always be given notice of the fact that the suit is pending. [337 - 338] 1. When required: The Federal Rules explicitly require notice only in (b)(3) actions. But courts generally hold that notice is required in (b)(1) and (b)(2) actions as well. a. Individual notice: Individual notice, almost always by mail, must be given to all those class members whose names and addresses can be obtained with reasonable effort. This is true even if there are millions of class members, each with only small amounts at stake. [Eisen v. Carlisle & Jacquelin] [337] b. Publication notice: For those class members whose names and addresses cannot be obtained with reasonable effort, publication notice will usually be sufficient. 2. Contents: The most important things notice does is to tell the claimant that he may opt out of the class if he wishes (in a (b)(3), but not (b)(1) or (b)(2), action); and that the judgment will affect him, favorably or unfavorably, unless he opts out. 3. Cost: The cost of both identifying and notifying each class member must normally be borne by the representative plaintiffs. If the plaintiff side is unwilling to bear this cost, the case must be dismissed. [Eisen v. Carlisle & Jacquelin; Oppenheimer Fund v. Sanders] [338] F. Binding effect: Judgment in a class action is binding, whether it is for or against the class, on all those whom the court finds to be members of the class. [338] 1. Exclusion: In the case of a (b)(3) action, a person may opt out, i.e., exclude himself, from the action, by notifying the court to that effect prior to a date specified in the

notice of the action sent to him. A person who opts out of the action will not be bound by an adverse judgment, but conversely may not assert collateral estoppel to take advantage of a judgment favorable to the class. (Absent class members in (b)(1) and (b) (2) actions do not have the right to opt out and thereafter bring their own suit.) G. Amount in controversy: Only the named representatives of a class have to meet the requirements of diversity and venue. However, every member of the class must satisfy the applicable amount in controversy requirement. [339] 1. Diversity: Thus in diversity cases, each member of the class must have more than $75,000 at stake. [Zahn v. International Paper Co.] This obviously makes diversity class actions difficult to bring (but has not stood in the way of such actions in mass-tort cases). 2. Federal question suits: In federal question cases, there is no general amount in controversy requirement, so the problem does not arise. H. Certification and denial of class status: Soon after an action purporting to be a class action is brought, the court must decide whether to "certify" the action. By certifying, the court agrees that the class action requirements have been met, and allows the suit to go forward as a class action. If the court refuses to certify the action: [340] 1. Continued by representative: The suit may still be continued by the "representatives," but with no res judicata effect for or against the absent would-be class members. Usually, the representatives will not want to proceed on this non-classaction basis. [340] 2. Sub-class: Alternatively, the suit may be continued by a sub-class of the original class. If so, res judicata extends to the members of the sub-class, but not to the other members of the original class. [340] 3. No appeal: The denial of class action status may not be immediately appealed, because it is not deemed to be a "final order." [Coopers & Lybrand v. Livesay] [340] I. Settlements: Any proposed settlement of the class action must be approved by the court. FRCP 23(e). The court will approve the settlement only if it is convinced that the interests of the absent class members have been adequately protected (e.g., that settlement is not being urged by greedy contingent-fee lawyers who will pocket most of the settlement money). [341] 1. Notice requirement: If the class has already been certified, notice of any proposed settlement must be given to each class member. J. Attorneys fees: The court may award reasonable attorneys fees to the lawyers for the class. These fees are generally in rough proportion to the size of the recovery on behalf of the class. [342] 1. Federal statute requires: In the usual case of a class action brought under a federal statute, attorneys fees may be awarded only if a federal statute so provides. [Alyeska Pipeline Service Co. v. Wilderness Society.] Congress has authorized attorneys fees for many important federal statutes that are frequently the subject of class action suits (e.g., civil rights and securities law). K. Mass tort cases: Class actions have begun to be used increasingly in "mass tort" cases. [342 - 350] 1. Definition of "mass tort": Mass torts fall into two categories. In a "mass accident," a large number of persons are injured as a result of a single accident. (Examples: an

airplane crash, the collapse of a building, or the explosion of a factory accompanied by the release of toxic substances.) In a "mass product liability" case, a defective product is sold to thousands of buyers, who are thereby injured. [342] 2. Single-accident cases: In mass-tort cases involving a single "mass accident," or a single "course of conduct" by one defendant, many courts allow class certification. Cases involving a single explosion, or a single toxic dumping by one defendant on one occasion, are examples. [344] 3. Product liability cases: In mass-tort cases involving product liability, by contrast, most federal courts have held that the federal class action is not suitable. Usually courts dont allow it to be used even for the limited purpose of deciding core "all or nothing" issues like Ds negligence, or the products defectiveness. [345] 4. Factors for mass-tort cases: Here are some of the factors that courts consider in deciding whether to allow certification in a mass accident or mass product liability case: [346] a. State-by-state law variations: If the suit is based on diversity (as it usually will be in a product liability case), and involves plaintiffs from many states, and if the federal court would therefore somehow have to apply the differing laws of many states (because of Erie), the court is less likely to grant class status. b. Centrality of single issue: Where one issue is truly "central" to the case, the court is most likely to certify the class. c. Size of typical claim: The larger each individual claim, the less likely the court is to allow class status (because each claimant could sue on his own). d. Novelty of claim: Where the plaintiffs claim is "novel," i.e., untested (e.g., that cigarette companies have fraudulently entrapped young people into addiction to nicotine), certification is unlikely, because the court wont want to let the future of a whole industry turn on whether one jury likes the claim. e. Limited funds: Where there are so many thousands of claimants that theres reason to believe that the defendant(s) will be insolvent before the last claimant has recovered, certification is more likely.

1. The problem of Representation Hansberry v. Lee, Sup Ct, 1940, Justice Stone, page 281. Lee (P) sought to enjoin a sale of land to Hansberry (D) on the grounds that the sale violated a racially restrictive covenant. There must be adequate representation of the members of a class action or the judgment is not binding on the parties not adequately represented. 2. The Standards for Certification The FRCP used to divide class actions into true, hybrid, and spurious. The 1966 amendments to rule 23 got rid of those and replaced them with three kinds that are defined in functional terms. o 1: focuses on the potentially harmful consequences for the parties absent use of the class action. It has two parts a b1A or incompatible standards class, concerned

with the interests of the party opposing the class, and a b1B or impairment of interests class, focusing on the interests of the absent class members. o 2: the b2 class action, is applicable when injunctive or declaratory relief is sought against a party who has acted or refused to act on grounds generally applicable to the class. o 3: this is a catch-all, applying when questions of law or fact common to the class predominate. The new rule also established four general prerequisites for class certification: numerosity, commonality, typicality, and representativeness (23a) Every class must satisfy all four of these prerequisites as well as meeting the criteria for one of the b1, 2 or 3 types.

Holland v. Steele, US Dist Ct, N Dist of GA, 1981, page 287. Holland (P) was a member of a class composed of Dade County jail inmates, who alleged that Steele (d) denied them counsel in violation of their rights guaranteed under the 6th and 14th A of the U.S. Con The prerequisites of a class action that (1) the class is so numerous that joinder of all members is pracitcable, (2), there are questions of law and fact in common to the class (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class. Holding: Yes. 23a: 1. Numerosity. There must be some evidence or reasonable estimate. There will be at least 40 inmates in the next year. The focus is not on numbers alone, but on whether joinder is practicable in view of the numerosity. Smaller classes are better when the P is seeking injunctive relief on behalf of future class members. Obviously you wont be able to identify all individuals likely to become inmates. 23a1 is clearly met for joinder of unknown individuals is certainly impracticable. 2. Common Questions of Law or Fact: Here there are common factual questions, and law. There may arise a distinction between the rights of different members, but right now there is no problem. Fact patterns dont have to be identical just the types of facts or evidence need be typical. 3. Typicality: This is similar to 2, but focuses on the claim of the representative party, not the class as a whole. The named plaintiff has to have a claim typical of the class, not identical. The named plaintiff can bring an across the board class action. The Sup Ct says that typicality is met when a class representative [is] part of the class and possess[es] the same interest and suffer[s] the same injury as the class members. Here that is good to go. 4. Adequate Representation There are two factors crucial in this question. (a) the rep must have common interests with the unnamed members and (b) it must appear that the representative will vigorously prosecute the interests of the class through qualified counsel. Here, the plaintiffs interest is not antagonistic to potential members, and the lawyers are good. So, 23a is good to go. Under 23b2 class cert is proper if 23a are met and the party opposing the class has acted or failed to act on grounds generally applicable to the class, making appropriate final injunctive and declaratory relief with respect to the class as a whole. This just has to be general, not totally specific. Detainees and sentences are both included in this for now, it may change, but here the rights attach to them alike and so they still satisfy commonality and typicality. In the Matter of Rhone-Poulenc Rorer, Inc US 7th circuit, 1995, page 295 Posner This is the case where all the hemophiliacs got AIDS

I think they basically just said that they couldnt certify the class because there were too many different issues and time periods, etc, and state laws were different, and there would be too much pressure to settle 3. Problems of Implementation Eisen v. Carlisle and Jacquelin, Sup Ct, 1974, page 313 After the remand of this antitrust class action, the federal district court permitted Eisen (P) to proceed (21) with notice only to certain members of his class and (2) closts of notice to be assumed by the s. 23c2 requires that in any class action, individual notice of the pendency of such action must be given to all class members who can be identified through reasonable efforts, and the cost of such notice must be borne by the prospective class representative (ie plaintiff).