Civ Pro Outline

Yeazell: Spring 2004

Sera Hwang

Yeazell, Spring 2004

II. PROCESS OF ADJUDICATION EXAMINED
Means and Ends of Litigation: Incentives to Litigate
Notice pleading
Broad joinder
Broad discovery
Struggle between full trial and truncated procedures
Limited appellate review
Party driven
Deep jurisdictional divisions
Picture of Civil Litigation
The activity you engaged in today most likely to end up in court is traffic/ordinance
violations.
Almost all civil litigation occurs in state courts.
There are more civil than criminal filings.
Courts decide about 30% of civil cases (fed courts).

Characteristics of Civil Litigation:

Civ Pro Outline

Yeazell: Spring 2004
Sera Hwang

Activities you engage in where youd most likely end up in court: traffic or ordinance
violations (comprise 3/5 litigation)
Civil litigation most in state courts
If in federal court, b/c of diversity; traffic violations in fed ct b/c diversity (usu in NE states);
decide 30% of civil cases (judication rate)
Of non-traffic cases, contract cases are most common (56%) while torts (44%)
o Yet 2/3 of all cases that go to trial are tort
More civil than criminal filings (41% to 39%)
Lots of civil cases b/c debt (=K case) & traffic violations (=civil)

State Farm Mutual v. Campbell, p. 245;

Punitive damages constitutional issue b/c substantive due process, odd b/c it just says,
you cant do this.
Due process requires you to look at:
o Look at how bad was; size of punitives: harm to (ratio of 9:1 presumptive
minimum); size of punitives in relation to civil penalties; (and de novo
appellate review)
Campbell General Rule: punitive damages cant be more than 9xs compensatory
damages
Changes after Campbell
o D has less incentive to settle now after Campbell b/c limit on punitive
damages (more calculable risk of damage, reduce risks)
o Less deterrent effect for intentional harm
Odd that equally culpable people may have different punitive damages
based on compensatory damages (odd b/c should have equal punitive
damages), but just general rule (1:9 ratio)
o Lawyers will invest more in cases with significant compensatory damages
over highly culpable D
o Reduces very occasionally but very high awards (which freak Ds out)
Remedies
Specific Remedies
Order parties to do something or refrain from doing something and may enlist officials to
recapture personal/private property.
o Reasons: tailor-made criminal statutes that prevent behavior all the time.
(unlike police who have better things to do & only prevent once)
Replevin: ct order reqing a marshal to return an item to its owner
Injunction: ct orders to command parties to stop doing something
Subsidiary Remedies
Damages
Constructive Trust: get proceeds of something they sold of yours.
o Conversion: when someone takes something of yours & sells it, you get what
they got from selling your crap
Two courts:
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Civ Pro Outline

Yeazell: Spring 2004
Sera Hwang

(1) Common law give legal remedies

(2) Court of Chancery (court of equity) give equitable relief
To get into court of equity, you must show either:
(1) will suffer irreparable damage
(2) inadequate legal remedy (injustice would result if didnt use Chancery)
Characterizing Remedies: Legal and Equitable
Legal
Equitable
(Common Law)
(Court of Chancery court of equity)
Damages:
Injunction: force someone to do or
Ejectment: kick person off
not do something
property
Rescission: cancel K
Replevin: want something back
Reformation: change K to reflect
thats wrongfully obtained
parties intent (mistake)
Mandamus: order officer to do his
Quiet title
duty
Constructive trust: get stock,
Habeas corpus: civil violations
proceeds of sale
against prisoners
Accounting
Characterizing Remedies: Specific and Substitutionary
Substitutionary
Specific
Damages
Replevin
Constructive trust
Ejectment
Injunctions
Reformation
Mandamus
Habeas corpus
Decree for specific performance
Usually ct of equity = specific remedy & common law = substitutionary remedy.
Classifying Remedies
Specific
Substitutory
Legal: allow jury
Replevin, ejectment,
Damages
mandamus, habeus corpus
Equitable: dont allow jury Injunction, reformation,
Clean-up, Damages,
rescission, quiet title
Constructive Trust
Implications of remedy seeking and classifying as legal or equitable:
Might be easier to get legal remedy, depends on whether you want a jury (in civil case, b/c
then youd want it to be classified as legal) depends on how you characterize the facts
Sigma Chemical v. Harris, p. 255;
Harris started working at Sigmas competitor, ICN, even though non-compete clause. Ct
grants injunction yet says that Harris can work at non-purchasing position at ICN. Sigma
claims too hard to enforce.

Civ Pro Outline

Yeazell: Spring 2004
Sera Hwang

Ct balances hardships of Harris getting another job, whether initial non-compete clause was
freely-bargained for, etc.
NOTE: To be in ct of equity, need to show that injury with no adequate relief
NOTE: Cts typically balance hardships for injunctions b/c similar to criminal sanction yet
no requirement for due process for injunctions

Two suits for injunctive relief: San Fran

2 organizations seek to enjoin city officials from conducting gay marriages.
o CA Family Code: defines marriage as btw man and woman. Both agree that Ps
will prevail yet deny requested relief, b/c no irreparable harm from refusal of
preliminary injunction balanced with hardships (Sigma Chemicals)
Two reasons: insufficient notice to Ds, no demonstration of irreparable injury (balance
hardship on beneficiaries of challenged order)
Financing Litigation
Incentives in Litigation: (1) for client, (2) lawyer (based on fee system in place), (3) opposing
party (guess financing mechanisms)
Costs of litigation: relatively high legal fees (shape contemporary litigation)
Direct
Lawyers
Experts & investigators
Filing fees, process servers, court reporters, photocopy, technology, travel
Indirect
Loss of party & witness time & focus
In generallaw cheap, facts expensive
American Rule: each party pays its own legal fees
Parties can bring their cases even if less-than-certain cases w/o fear of having to pay
both their and other sides legal fees
English Rule: losing party pays both its own fees and those of the other side
Fee-Spreading
Who pays? (The American Rule)
1. Each party, her own (only), as incurred
Hourly fee (most common financing mechanism), flat fee: most commercial
litigation
2. Each party, sharing with similarly situated
Insurance, contingent fee (20-50%; pay only if P recovers): most personal injury
litigation
i. For people with meritorious claims for significant amts
3. Loser pays winners fees (whole or part)
Fee shifting statutes: civil rights, discrimination
4. Paid by private philanthropy, public subsidy, lawyer
Legal aid, pro bono work, dont work for free
People with no insurance & no assets

Civ Pro Outline

Yeazell: Spring 2004
Sera Hwang

i. Housing (hold-over tenants) & Family (spouses, parents for divorce &
child custody) & creditors
Major social impact litigation: NAACP Legal Defense and Education Fund
5. Contingency: require monetary award

Each trial day entails ~$4K in public costs

Fee Shifting
Common fund: if P sues yet similarly situated Ps. Put $ in common fund so other Ps would
share in costs for lawyer fees while benefiting as well. All who benefit from recovery share in its
costs.
Fund created by judgment or settlement against adversary
1. By Contract: written in the K that loser will pay winners fees or may be asymmetric
(yet ct sometimes forces it to be symmetric) in lease and loan agreements
Might prevent people from suing
2. By Common Law: when P has groundlessly brought a suit (malicious prosecution) or
bad faith
3. By Statute: statutes authorize courts to award fees to parties in any action which has
resulted in the enforcement of an important right affecting public interest. Prevailing
party can get reasonable attorneys fees included in costs (but no defendants).
Exception: two-way shift in permissible, only when the Ps claim is
frivolous, unreasonable, or groundless or P continued to litigate after it
clearly became so.
Contingency fees: damage claims, monetary recovery
Fee-shifting statutes: public interest claims
Others:
(1) Damage claims for too small amt class actions?
(2) Non-monetary relief in non-fee-shifting case: divorce & child-custody (16% litigation)
private lawyers & legal aid
(3) Uninsured Ds: most Ds w/o insurance dont have assets so wont get sued b/c what can
you sue for? Unless for specific remedy
Civil Financing System
Civil: multiple systems, primarily private
Plaintiffs
Contingent-fee lawyers
The rest split among contingent fee, party-feed, fee-shifting by K or statute
Defendants
Insurance
Straight-fee
EXCEPTION: Legal Aid
Evans v. Jeff, p. 272;
Got all injunctive relief (to improve treatment of institutionalized class members) yet no
lawyer fees & was expensive case

Civ Pro Outline

Yeazell: Spring 2004
Sera Hwang

State of Idaho maybe did this b/c already subsidize legal aid or to give msg for others not
to sue them
Ct says, too bad, b/c you have to serve your client yet dilemma with allocation for clients
and lawyer fees.
Yet this would affect what cases legal aid will take on b/c limited resources

Buchannon v. West Virginia, p. 277;

WVa had a self-preservation clause that was against ADA provisions, so sued. Yet during
trial, WVa legis changed self-preservation clause, so case became moot & was dismissed.
Petitioners want attorneys fees as the prevailing party under FHAA (catalyst theory:
achieve desired result b/c lawsuit brought about voluntary change in Ds conduct,
invalidated by SCt).
Fee-shifting okay for final judgment cases:
(1) enforceable judgments on merits and
(2) court-ordered consent decrees b/c material alteration of legal rltship of parties
BUT NOT if D changes position and makes case moot:
RESULT: avoid looking into Ds subj intent; results in more cautious litigation for
public interest
YET can make case about back damages, so even if change behavior, not moot.
SETTLEMENT: can negotiate lawyer fees.
Provisional Remedies
Provisional remedies: must be granted/denied before the case has been heard on the merits, based
on incomplete information YET need quick resolution
Problems:
(1) How can court decide whether to grant temporary relief when all relevant information
is not available?
(2) When does curtailment of ordinary procedures in granting provisional relief amt to a
denial of due process?
Preliminary Injunctions & Temporary Restraining Orders: The Basic Problem
Very fast injunction if irreparable damages would occur.
EXCEPTION TO FINAL JUDGMENT RULE: Interlocutory appeals of either grant or denial
of preliminary injunction (28 USC 1292(a))
Inglis & Sons v. ITT Baking, p. 282;
Antitrust action of other bakeries charging too low prices (trying to put people out of
business)
Alternative Test: burden of demonstrating either a combo of probable success & possibility
of irreparable injury OR that serious questions are raised & the balance of hardships tips
sharply in his favor
Prev, require that P will probably prevail on merits
The Alternative Test (adopted by SCt)
Irreparable harm to P

Civ Pro Outline

Yeazell: Spring 2004
Sera Hwang

Either P will probably win or Ps claim raises serious issues and (balancing test of
harms) P harmed by refusal much more than D hurt by grant
Public interest
If harm to P sufficiently serious, then only fair chance of success on merits is
reqd. If harm to P sufficiently serious, then only fair chance of success on
merits is reqd

Provisional Remedies and Due Process

Desire for an effective remedy collides with another principle (due process)
Fuentes v. Shevin, p. 286;
Procedural due process (property interest = possessory interest);
Must have (1) notice and (2) opportunity for a hearing (yet doesnt actually have to be a
hearing)
May not be much of a win b/c people usu dont go to hearings b/c no time, $ & increase price
of credit (so might make too expensive b/c potential legal fees for creditors)
Factors to consider with due process:
(1) will private parties be affected by official action?
(2) risk of erroneous deprivation of such interest through procedures used?
(3) govt interest in additional or substitute procedural requirements
Examples:
o

Unable to find convenient parking, law student parks in intersection nearest to law school. Police tow w/o hearing.
Denial of due process?
o (1) private interest: thats my car (clear property interest)
o (2) how likely is that that there might be a mistake by the govt and how likely that having a hearing would take
care of that mistake? Ans: well the car is there, so its blocking traffic.
o (3) govt interest: if everyone parked their car in the street, then would be denial of due process (important to keep
traffic going)
Battered spouse seeks ex parte (not going to even tell D in that case that shes seeking order, no notice) restraining
order. Notice & hearing reqd?
o (1) private interest: Ds freedom of movement, associational rights
o (2) risk of erroneous deprivation: he said/she said contest, significant possibility that mistake here so can solve
problem with hearing
o (3) govt interest (additional safeguards): better to veer on safety side (strong interest in protecting bodily
integrity)

Courts issue ex parte order if serious threats and w/ short time to a hearing (similar to Rule 65 with
TROs)

Dissimilar with other example: might have benefit from hearing but should air on caution with
domestic restraining orders

Notice of someone pursuing restraining order often comes right before beating. Yet if
restraining order in place before beating, then legal remedies for this

PLEADING
Three eras of pleadings:

Common law: the writs and all that (1200-1850)

Code Pleading: just the facts, maam (1850- )

Notice Pleading: just give me a hint, please? (1938-- ), tell a story

Two Medieval Procedural Systems

Common law process
Chancery process
Triers: judges, juries
Triers: judge, no jury
Formulaic pleadingsthe writs
Detailed pleadings
Live witnesses, but no subpoena or
Subpoena but no live testimony;
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Sera Hwang

discovery
Narrow party structure
Appeal only after final judgment

discovery
Open party structure
Free interlocutory appeals

So what have we done? Combining systems

Triers sometimes judge, sometimes both judge and jury
Pleadings no formulas but few facts
Rule 8: a short and plain statement of the claim showing the pleader is entitled
to relief
Live witnesses, supboenas, and discovery (plus more)
Broad party structure
Appeal only after final judgment
Except for interlocutory appeal from injunctive relief
Problem with Pleadings
Incompatible goals:
1. Learn as much as we can at the start of the case so we can screen out weak
cases cheaply
2. Eliminate technical barriers to cases that will be meritorious if they can get
to discovery
Notice pleading does well at #2, less well at #1.
Only cases in which it screens are those where pleader lacks legal basis for claim
Facts get screened later (and facts are screened better)
Dilatory pleads: 3 responses to allegations that have nothing to do with merits of case:
Jurisdictional challenges (not here)
Pleas in suspension (not now): wait until another problem is solved
Pleas in abatement (not until this defect has been fixed): procedural defects in
complaints
Peremptory pleas: grapple with merits of claim
Demurrer: concedes truth of facts but challenge legal sufficiency (So what?) Rule
12(b)(6)
Traverse: concede legal sufficiency but deny factual allegations (Not true)
Confession and avoidance: concedes legal and factual allegations but alleges
additional facts that change their significance (Yes but)
Legal issues easier/cheaper to solve than factual issues: 12b6 & dilatory pleas
Haddle v. Garrison, p. 314;
Haddle was at-will employee who was fired b/c he obeyed federal grand jury subpoena and
to deter him from testifying at a federal criminal trial. Sued under the law that injured
Constit-protected property interest (b/c at-will, not for-cause, employee), yet this is not
property interest but more like intimidation or retaliation.
Demurrer b/c even if assuming facts all correct, no legal basis for claim (b/c no property
injury potentially injured at-will employee doesnt have property interest in job)
Ethical Limitations

Civ Pro Outline

Yeazell: Spring 2004
Sera Hwang

The Law Governing Lawyers

General laws--e.g., fraud, theft, etc.
General rules applicable to all lawyers as professionalsmalpractice
General rules applicable to all lawyers as lawyers.
E.g.. Duties of loyalty, diligence to client.
Other responsibilities created by codes or rules of professional conduct, typically
enforced by professional disciplinary mechanisms
(So far, nothing special about litigation.)
Lawyers in particular fields also have special constraints applicable to their work within
those fields.
E.g. criminal prosecutors, securities lawyers have special responsibilities
generated by the Constitution and by securities regulations.
Rule 11 gives special responsibilities to civil litigators--applicable only to that role.
Rule 11 as a Rule
Solves problem of creating system giving lawyers incentive to lie
Covers all pleadings, written motions, and other papers that lawyers sign (signature means
youre okay with document). Thus, excludes discovery.
Applicable for lawyers, parties not represented by lawyers, law firms
Wiggle room: 11c1A (have 21 days to correct), 11c2A (monetary sanctions not awarded
against represented party)
Sanctions: cts MAY impose appropriate sanction upon lawyers, parties, or law firm (11c)
Walker v. Norwest Corp., p. 320;
Attorney incorrectly filed diversity jurisdiction b/c no complete diversity jurisdiction
Based on 12b6, case dismissed and lawyer sanctioned b/c failure to explain defective
complaint or to move to amend or dismiss it.
Christian v. Mattell, Inc., p. 324;
Violation of 11b2 (law) b/c didnt have jurisd (everyone needs diversity) & dont know estd
law, yet included bad conduct (instead of just signed papers included in Rule 11).
Reasons to get sanction: sent msg to others; Cts dont have to impose sanction yet may
Special Claims: Requiring and Forbidding Specificity in Pleading
Rule 9: Pleading Special Matters
(b) Fraud, mistake, condition of the mind. Circumstances stated with particularity. (be
specific) Malice, intent, knowledge, and other condition of mind of a person may be averred
generally. (to give other party notice of what they are accused of lying about)
Yet specificity can be trap b/c then what if D changes policies so suit is moot based
on specific things?
Rule 15a: Amended and Supplemental Pleadings
1) (1) any time before a responsive pleading is served, (2) any time w/in 20 days after it is
served, (3) otherwise, only by leave of court or (4) by written consent by the adverse
party and leave shall be freely given when justice so requires.
Stradford v. Zurich Insurance Co, p. 328;

Civ Pro Outline

Yeazell: Spring 2004
Sera Hwang

P (dentist) sued to get reimbursed for dental molds damaged in flooding (~$100K in value),
yet in counter-claim, yet D counter-claimed that P lied, yet failed to identify lie. Rule 9b to
give fair notice of precisely which statement party alleges is false, or else dismissed. Yet
opportunity to amend pleadings (Rule 15a), so D was allowed to amend their pleadings to be
more specific.

Allocating the Elements

Which party has the burden of pleading, producing evidence, or proving a particular element
of a claim.
Burdens:
(1) Burden of pleading: must allege that element of claim or defense
(2) Burden of production: at trial, must produce evidence
(3) Burden of persuasion: persuade trier of fact that ones version of facts is more
likely than not to be true
(Usually all go together)
Early case in the battle over procedural aspect of civil rights claims, struggles that have
reflected themselves in many stages of litigation
Gomez v. Toledo, p. 335;
Main issue: whoever states in either pleading or answer that good or bad faith might
have burden of proof later in trial. Thus, question of who has burden of pleading bad/good
faith.
Since qualified immunity is the Ds defense & nothing in statute says that P has to bring up
good faith, then Ds burden of pleading good faith and put in answer.
o Also D is best position to know whether good faith or not, even though contrary
to fraud cases, which makes victims prove
Assumption: if you plead it, you have burden of proof as well!!!
o Pleading: determines if claim (burden of proof on P) or defense (burden on D)
Responding to the Complaint
But not always . . . Responding to a Complaint
Defendants Action
Consequences
1. Nothing
1. Default judgment
2. Answer
2. Further proceed-ings
3. Pre-answer motion
3. Delay of answer; decision on issue
raised by motion.

Threaten default judgment to force D to reply (Rule 55);

Two opportunities for D who do respond:
(1) pre-answer motion raise certain types of objections to action at very early stage
of litigation (D has option of filing sometime) may potentially end case.
(2) answer responds to allegations of the complaint & asserts any additional
information or affirmative claims that D may have against P.
Pre-answer motion & answer may serve as key for strategy: parties define contours of
their disagreements and maneuver for early advantage

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Potential earlier, cheaper termination of case for D

Rule 12g & 12h have consequences for making & not making a Rule 12
motion

Pre-answer motion
Ds possible responses:
(a) reasons why court should not proceed with the action;
(b) assertions that the complaint, even if true, provides no basis for legal relief;
(c) denials;
(d) affirmative defenses;
(e) requests for clarification and more information.
Rule 12b: defenses
Rule 12e: motion for more definite statement (from historical terms when pleadings were more
detailed)
Rule 12f: motion to strike: (1) part if not correct allegation or (2) if redundant, immaterial,
impertinent, or scandalous matter if complaint is overly long & detailed)
Answer
If not legal allegation (demur 12b6, or anything in 12b), then factual allegations
1) Denials: D denies many of the allegations of complaints. Rule 8b and 8d.
Denies allegations of complaint
Rule 8b: requires D to deny only those allegations that he actually disputes
Rule 8d: provides that any allegation that is not denied is deemed admitted.
Zielinski v. Philadelphia Piers, p. 343;
Accident with fork lift and in answer, D use blanket denial about performance &
ownership, control, etc (included in one phrase) yet P uncertain if denying ownership.
Yet now, other companies are operators and controllers, while they are still
owners of equipment. Now SoL pass to bring addition parties in, b/c
vague answer.
Requires more specific answer than a general denial, b/c dont know what Ds
denying and admitting. (to give P right of action)
If answers are misleading (even subsequent to filing of answer), even if the denial in
answer had been sufficient, then party (D) is still estopped. Thus, can be amended if
justice so requires.
Yet P had sloppy drafting! Cts too easy on them.
2) Affirmative Defenses:
General denial: places in issue all of the material allegations contained in Ps petition
necessary to support his claim and the D is entitled to prove any fact which tends to show
Ps cause of action never had any legal existence.
Affirmative defense: D has defense in nature of confession of facts of Ps petition but
avers that the Ps theory of liability even though sustained by the evidence does not apply
to it b/c of additional facts which place D in a position to avoid any legal responsibility
for its action, then such defense must be in answer.
Required in pleading: anything that if not pleaded would be likely to take the
adverse party by surprised or would raise issues of fact not appearing on the
face of a prior pleading (dont be surprised)

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Sera Hwang

Pleadings important sometimes if little discovery & pretrial process, b/c then
pleadings shows issues in dispute (for parties to not be surprised in trial &
direct discovery to address those issues) (help parties cater cases by
pleadings)
must be pleaded in answer as affirmative defense
3) Reply:
Rule 7a: requires a reply if answer contains a counterclaim, yet not for affirmative
defenses; if labeled counterclaim, then reply reqd (even if mislabeled just to be safe)
mandatory; yet if labeled affirmative defense, then dont have to respond
Cts or party may also order a response
4) Amendments:
Pleadings: preliminary defn of what a lawsuit is about, but defn may change, so
flexible amending.
Rule 15: Amendments: reflect parties changed view of case as it develops; notion of
prejudice (at some point, the other side has to make decision about how to present case,
yet difficult if story continually changing)
A party may amend the party's pleading once as a matter of course at any time
before a responsive pleading is served . . . . Otherwise a party may amend the
party's pleading only by leave of court or by written consent of the adverse
party; and leave shall be freely given when justice so requires. . .
When is it too late to change your story (amend your pleading)?
When justice so requires: when is it too late to change? (on eve of trial) better
have good excuse/reason for this
Need to give parties more time to prepare: not surprised about trial
Allow parties to change pleadings b/c: (1) want to find truth in case, (2) discovery
takes place after pleadings so after finding out more info, should be able to revise
pleadings during discovery
The Basic Problem: Prejudice
Beeck v. Aquaslide N Dive Corp, p. 354;
Strict product liability claim where Aquaslide accused of product defect yet A
realized later that its not real mfr, and SoL ran out for Beeck to sue real mfr.
Cant req A to be D b/c how can A prove another mfr didnt have prod defect?
Silly!
Yet Ps bad for not exploring more & Ds for admitting they were mfrs tho
false (so ct allowed D to amend its answer)

Statute of Limitation & Relation Back

Rule 15c: solve SoL problem by dating amendment to original pleading date if
(1) claim/defense arose from same T/O as original pleading & if (2) real D should
have reasonably known that lawsuit should have been against them, then after
SoL, can still bring lawsuit against them.
Moore v. Baker, p. 359;
Cant amend pleadings b/c after discovery, yet wants to amend from informed consent
to negligence in performing surgery and post-operative care
Bonerb, p. 360;

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Amended pleadings for personal injuries on Ds recreational basketball court from

negligently maintaining to counseling malpractice.
Relation back doctrine: basis that one given notice of litigation concerning a given
T/O have been provided with all the protections that SoL afford (b/c advised at outset
of general facts from which belated asserted claim arises)
o Allegations in original and amended complaints from same operative facts
(Ps injuries) & gave D sufficient notice & no bad faith on part of P
RELATION BACK: Timing important (fairness) & pleadings guide discovery
DISCOVERY

Most cases end at during pretrial and before discovery

Discovery ends lawsuits b/c: (1) produces information on merit & permits parties to make
informed judgments about strength of both parties positions (settlement or summary
judgment), (2) parties might run out of money
US discovery system makes it possible to ferret out much a lo tof info (so allow parties to
have good counsel & adequate resources to litigate in full possession of relevant information)
o (1) extent of expensive over-discovery, (2) under-discovery and stonewalling,
(3) asserted decline of professional civility and cooperation, (4) failure of judicial
supervision
Relevance: grants and limits power; Privilege: limits discovery

Discovery before Discovery

Early common law had no system for compelling disclosure of evidence before trial.
Early common law also lacked subpoena power; witnesses testified voluntarily.
Equity was all discovery, no trial: witnesses subpoenaed, testified at depositions, but not
live.
By 1900 witnesses could be compelled to testify in common law trials, but it it was
difficult & awkward to compel evidence before trial.
Rule 26(b)(1)--The Magna Carta of Modern Discovery
Parties may obtain discovery regarding any matter, not privileged, that is relevant to
the claim or defense of any party. . . . For good cause, the court may order discovery of
any matter relevant to the subject matter involved in the action. Relevant information
need not be admissible at the trial if the discovery appears reasonably calculated to
lead to the discovery of admissible evidence.
The Anatomy of Rule 26(b): Who, What, and When?
(b)(1)Parties may obtain discovery regarding any matter, not privileged, that is
relevant to the claim or defense of any party. . . . [and] reasonably calculated to lead
to the discovery of admissible evidence. For good cause, the court may order
discovery of any matter relevant to the subject matter involved in the action. (b)(2)
By order, court may. . . limit [if] unreasonabl[e]
Structure of Discovery
First stage

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Sera Hwang

Initiated by parties (relevant & privileged); judge intervenes only in case of

dispute, w/ broad discretion
Is it relevant to claim or defense . . . reasonably calculated to lead to admissible
evidence and not unreasonable in light of case?
Is it privileged?
Second stageby leave of court
Is it relevant to subject matter involved in the action

Relevance
About common sense (whats relevant to Ps claim/pleading); information you need is based
on what you have to show
D only needs to come forward with what they will use to support their claim/defense
Davis v. Precoat Metals, p. 365;
P wants information on other complaints about racial and national origin discrimination at
same plant to show discriminatory pretext & D says too broad. (maybe to bring in additional
Ps too
Ct grants b/c Ps limited to one plant & race and national origin discrimination (narrowly
tailored) to specific allegations of Ps complaint.
Steffan v. Cheney, p. 367;
Steffan discharged b/c he proclaimed he was homosexual, yet constitutionally challenges
discharge (also its self-incrimination).
Steffan refused to answer question so got case dismissed, so can appeal (final judgment rule).
Asked about homosexual conduct yet irrelevant to claim (discharged b/c proclaimed he was
homosexual, not of misconduct).
Only thing relevant is why they said they discharged him, not other reasons they can get him.
Judicial review of an administrative action is confined to the grounds upon which the
record discloses that [the] action was based.
SUPPOSE: Steffan discharged for alleged sexual conduct, does he have to answer questions
about sexual conduct? Yes, if its highly relevant & main point of case even though selfincrimination, etc.

Relevance & Privilege

Relevance ties discovery and evidence
Privilege trumps relevance.
to substantive law.
Irrelevant means that substantive law
Privileged means that we think
denies significance of this information.
something more important than
E.g. motive for breach of
correct outcome of case.
contract.

Rule 26a1D: require party to show insurance agreement that might pay for damages if Ps win
shows how much incentive Ps have for litigation (deeper pockets) & punitive damages
size
Privilege
protections for information from certain sources

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typically blocks information from particular source, not underlying facts (so if get same
info from unprivileged source, should be okay)
privilege of self-incrimination may be waived by taking stand and denying the crime
communication to ones lawyer is privileged.
Waive right of privilege: if you bring something up as your claim (eg. emotional distress) &
privilege is relevant to claim or defense (discoverable)
Lawsuit:
Stage 1: Disclosure--26(a): no one will ask you about this but you just come forward and
disclose it
26a1A-D: disclosure, may be used to support claim or defense + damage calc +
insurance (limited to things for what you want to support your claim)
But not if exempted: 26a1E
Stage 2: compelled Discovery--26(b), etc.: this is when other side asks you for
information, questions, etc.
Stage 3 (in some cases): relevant to subject matter
Examples:
Albert & Barbara get into accident. A alleges that B was negligent.
o A needs to disclose: contact info of witnesses, damages (bills), yet doesnt have to
disclose his insurance (b/c Bs not counter-suing him for damages)
A cant get Bs driving record b/c hes not using it as part of claim (has to
be relevant, not privileged & must support his claim)
A doesnt have to disclose witness he doesnt like and want to use at this
point, but might be questioned/prevented if he attempts to use it later on.
Reqs you to make a decision early on of who youll put on trial
o B can disclose her car maintenance (mechanic), witness, & insurance yet doesnt
have to disclose fight w/ boss b/c not supporting D.
Yet if asked during deposition, B must answer b/c relevant & not
privileged
The Usual Sequence of Discovery
Prefiling investigation see Rule 11 (informal; no use of discovery)
Need to figure out what substantiation of the claim you can make (before
complaint is filed): talk to your client, interviews, looking for documents
Filing
(Required) Disclosure 26(a)(1)
What you think basic structure of witnesses is, come forward & disclose it
Discovery 26(b) et seq.
Interrogatories & Requests for Admission Rules 33 & 36
Admission: not controversial anymore (no dispute)
Interrogatories: written questions answered by written response
Document production Rule 34; Physical exams (Rule 35)
Depositions Rule 30
Usu last stage b /c limited time and need info to get good deposition (with
background info)

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Note: usually not a lot of discovery and disclosure produces most evidence and maybe 1
deposition
Rule 30d, 33b, 37a2 & 4
Cant sue interrogatory to non-party, but you can depose non-party (previous reason b/c
not literate)
Yet if want to give non-party an interrogatory, can join and then drop after
discovery
Interrogatories limited to 25 questions (unless ct allows more); already have basic inform
with reqd disclosure as well.
Deposition: have to answer all questions. Only ground to direct witness not to answer is
under 30d1, when must preserve a privilege, enforce limitation directed by ct, or present
motion under 30d4. Or else must answer questions even if not relevant. If irrelevant
tho, can object & have it noted (& ct might exclude it later on)

Reasons for not disclosing:

D has incriminating evidence against P. Required to disclose?
o Maybe not b/c can say using solely to impeach, yet big risk of having
evidence blocked (lose great evidence & cant use in trial)
o Yet if disclose, then lose element of surprise, gives P a chance to change her
story, in essence have denied Ps pleading story
Solely for impeachment only for disclosures, so during discovery, if requested, the
evidence must be produced .
o If P argues that should have disclosed, then Rule 37: ordinary sanction for not
disclosing to exclude but if no harm, then allow documents yet maybe just pay
cost?
Rule 37c: unless such failure is harmless
If fail to get disclosure, then Rule 37a2A: movant must show in good faith attempted to
get disclosure, yet other party didnt comply
o Sanctions: reasonable expenses 37a4
Admissions: Discovery or Delayed Pleading?
For parties, must supply all information not privileged yet relevant.
Interrogatory: produces evidence on contested fact;
Admission: admitted it on a pleading (no longer contested fact)
o Usu on information that isnt that important
Sanctions:
Tell court that youve made good faith effort to go through legal process
Sanctions include making information as admitted, attorney & filing fees.
Failure to respond to discovery request
By Party--What procedure? What sanctions?
37(a)(2)(B), followed by 37(b)(2)
By Non-party--refuses to answer in deposition
37(a)(2)(B), followed by 37(b)(1)
Suppose party seeks clearly undiscoverable material; what sanction?
26(g)
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Discovery and Privacy

Lot of judicial discretion in granting protective order
Still concerned with relevance and privilege of information based on pleadings &
circumstances of evidence (employment memo)
Protective Order: even if not privileged & relevant, get protective order
Rule 26c: protect a party/person from annoyance, embarrassment, oppression, or undue
burden/expense (1) no disclosure, (2) disclosure/discovery only on specific terms, (3)
discovery only through another method
Stalnaker v. Kmart Corp, p. 381;
Employment sexual harassment case in which P seeking for other women to testify to
show pretext (relevant & not privileged) yet D says its too broad in scope (not relevant
enough) & unnecessarily embarrassing, etc.
Ct says P can only talk about sexual harassment and not voluntary sexual relations, so P
must phrase questions carefully.
Protective Orders & Work Product:
When is relevant, unprivileged material still not discoverable?
Protective Order
Work Product
26(c) balances need against collateral
23(b)(3) protects material produced by
harm
and for litigation
Lots of judicial discretion about
If its trial preparation material, not
whether and how to protect
discoverable unless. . .
Rule 26(c) Protective Orders
Upon motion . . . and for good cause shown, the court . . . may make any order which
justice requires to protect a party or person from annoyance, embarrassment, oppression,
or undue burden or expense, including one or more of the following:
Hickman v. Taylor, p. 391;
Tort claim of wrongful death. Ps lawyer didnt interview survivors so wants to seek this
information from Ds lawyer.
This info was relevant & not privileged (probably doesnt fall under attorney-client
privilege), YET work product/trial preparation (exception)
o Ps notes and questions will show his theory of the case, therefore protected
Note: Once you show its trial prep, P (party wanting info) has burden of proof
Hickman now: under Rule 26b3. Maybe covered by lawyer-client privilege (if crew
hired lawyers), so might go through deposition process (but undue financial hardship?),
maybe get basic info but not lawyers impressions of documents
Trial preparation: prepared in anticipation of litigation? Rule 26b3
Depends on purpose of creating document (just to record or in case of trial)
Witnesses: can get their own statement
Experts:

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big rise in # of experts; special discovery rules of report (get theory), depose, etc. (Rule
26b4)
Identities of experts?
o 26(a)(2)(A)--Disclose identities of potentially testifying experts
Qualifications & contents of opinions?
o 26(a)(2)(B)--testifying experts must submit bio & report
o 26(b)(4)--nontestifying experts
Probing expert testimony?
o 26(b)(4)--routine depo of testifying expert; special showing for nontestifying
expert

Thompson v. Haskell, p. 399;

P was seeking to protect her psychological history in sexual harassment case, yet she
claimed she was distraught. Therefore, she waived her privilege
Ct says that D cant get this info anywhere else (didnt have opportunity to b/c in past
timing issue compared to Hickman)
o B/c of timing, use Rule 26b4B instead of Rule 35: Physical and Mental Exam of
Persons
Ps psychologist isnt expert consulted in anticipation of litigation as well (eg. similar to
emergency room doctor just testifying about what happened, not giving her expert
opinion on something)
Fed Rule of Evid 702:
If scientific, technical, or other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, a witness qualified as an expert
by knowledge, skill, experience, training, or education, may testify thereto in the form of
an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the
testimony is the product of reliable principles and methods, and (3) the witness has
applied the principles and methods reliably to the facts of the case.
Chiquita International Ltd v. M/V Bolero Reefer, p. 400;
o Chiquita is suing shipping company b/c bananas rotted after crane broke. Shipping
company is seeking report from non-testifying crane expert.
o P objects b/c non-testifying expert, & ct denies discovery b/c D had an opportunity to
examine the crane themselves

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Quick Review:
If plans to ask Dr. to testify:
What must disclose?
Name & contact info (26(a)(1))
Must Dr submit bio & report?
No: an expert but not retained in anticipation of litigation and therefore not
subject to 26(a)(2)
Can get lawyers interview notes?
Unlikely w/out more: trial prep materialno apparent special need.
Can prevent from asking about S.T.D.?
Arguableif unrelated to underlying injury and not otherwise relevant; make
26(c ) motion
If doesnt plan to have Dr. testify can depose Dr?
Yes; a fact witness with relevant info as to which has waived privilege
by putting physical injuries at issue
Can get copy of Dr.s treatment notes? How?
Yes: relevant, unprivileged (but see possible redaction by protective order);
subject to subpoena under Rule 45(a).
Dealing with Bad Behavior in Discovery
o Bad behavior: Delay, evasiveness, abusive use of various discovery devices, use of
discovery to buy time or to force a hard-pressed opponent to settle for less
o Too little discovery (stonewalling), too much discovery, and mismatched discovery (in
wealth, so richer party tries to seek more discovery to cause other party)
o Tools: (1) limits on discovery (relevant to claim/defense), (2) sanctions for bad
behavior, (3) judicial supervision
o Sanctions: Rule 26(g) and 37
o Protective order (Rule 26c): limit discovery if produces annoyance, embarrassment,
oppression, or undue burden or expense.
o Problems: party can get info other party has but very expensive and burdensome, one
party rides free on discovery efforts of other parties
Thompson v. Dept of HUD, p. 405;
o P, desiring injunctive relief for LT racial discrimination in Baltimore, seeks lots of docs
under Rule 34 (doc/discovery), yet Ds say its too expensive to produce them.
(burden/benefit analysis)
o Ct says to cooperate, make good faith effort to reach common ground on dispute (odd
answer)
Poole v. Textron, p. 407;
o Product liability claim on overturning golf cart. P lawyer wants sanctions for discovery
abuse b/c no substantial justification for not complying. (being pains in the butt)
o Rule 37: want order to compel D to give P things and fees, b/c D should have given P
documents anyways.
o Rule 37a4: specific motion to compel disclosure (ans to interrogatory,
deposition); if refusal was unjustified, then answer + fees
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o Rule 26g: similar to Rule 11 except specific to discovery (certify with signature)
o Sanctions: individual lawyers pay (sanctions, fees, default judgment, punitive damages)
o but maybe not bad/annoying lawyers but just shy, cowardly, incompetent (and didnt get
all info from clients beforehand)
SETTLEMENT
Is Litigation Public or Private?
Public
Private
A basic function of all governments.
Competent parties can agree at any
Criminal law blocks self-help, sends
point to end dispute.
parties into civil system
Unlike criminal law, no judicial
Courts insist on adjudicating unless
approval generally required
parties agree
State will enforce settlement, even one
that could not be a judgment.
How Suits End without Adjudication
Abandonment by plaintiff
May represent judgment on merits
May represent inadequate financing of suit.
Contractual resolution:
Another forum: arbitration
Settlement
Arrived at by parties alone
Assisted by mediation, or similar third-party
Most civil suits end with settlement, 2% with trial, and 30% with non-trial adjudication
Two Versions of Settlement
Good version
Bad version
Both parties, mostly through counsel,
Badly counseled plaintiff ground down
aided by discovery, assess value of
by defendant with greater resources
claim, risk of trial
Defendant, scared by small chance of
Converging estimates save both sides
very big judgment, pays to settle
cost, risk, and time of trial.
meritless claim.
Company:
o Gain from settlement: ability to employ, marketing concerns, investors, cheaper to settle
(poss adverse judgment in trial), dont have to focus on litigation instead of business,
dont exposure trade secret issues (if not patented)
o Downsides: significant exposure for additional litigation (risk of settlement), still have to
be disclosed to investors, information may still leak out, very expensive to settle meritless
claim.
Employee:
o Gain from settlement: payoff sooner than later, keep good reputation (doesnt get
dragged through mud in litigation), future employees wont see her as litigation happy,
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settlement (feel like shes won), gain higher % from settlement (b/c less litigation fees &
%age)
o Downsides: public vindication with trial, enforcement via court in trial judgment
Conflict: P wants enforceability of K & D wants max confidentiality yet for enforcement,
need ct yet then have to file claim/complaint!
o Potential solutions: liquidated damages?
o Affirmative defense: used if sued after settling (attach settlement agreement & move for
SJ)
Jurisdiction & claims & settlement: if P has both fed and state claims, and state ct settles
any and all claims btw the parties, then what up?
o Full Faith and Credit Act: (re: judicial proceedings = court settlement), judgment by
state official is respected by federal courts/officials as well
Matsushita Electric v. Epstein, p. 432;
o State ct cant try federal claims yet settlement in state court (in consent decree judgment)
purported to settle both state & federal claims
o Ct held that state suit settled both state & federal claims, even claims that state ct couldnt
have adjudicated b/c Full Faith and Credit Act
If P settles after D loses S/J motion, then can still subpoena & depose P but cant ask her about
terms of settlement, but about relevant info to your case
o Against public interest for parties to be able to settle and keep everything private
(even if to help other cases), yet this undermines settlements
o CANT ask about settlement (structure, amt, etc) but CAN ask about underlying facts.
Limits of Confidentiality:
Kalinauskas v. Wong, p. 437;
o P wants information on Ms. Thomas sexual harassment even though Thomas settled with
confidentiality agreement. D says this will make settlement unattractive & disincentive
it.
o Yet ct says make settlements block information (against public interest), so can talk
about facts of case
o If filed by ct, you can use it (claim/complaint): Rule 5d
Rule 5d:
All papers after the complaint required to be served upon a party, together with a
certificate of service, must be filed with the court within a reasonable time after service,
but disclosures under Rule 26(a)(1) or (2) and the following discovery requests and
responses must not be filed until they are used in the proceeding or the court orders filing:
(i) depositions, (ii) interrogatories, (iii) requests for documents or to permit entry upon
land, and (iv) requests for admission.
Who wants confidentiality?

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o P: leverage with bargaining power for higher settlement, D: reason why D probably
wants to settle; yet Ps lawyer knows details of settlement
Bad to have confidentiality:
o Public interest such as defective product
Arbitration

Ending disputes with contracts

After dispute arises
Before dispute
Lawsuit>>
Agreement re transaction
Negotiations
Employment, sales, professional
Contract: Settlement agreement
services, etc.
Enforced by courts, like other contracts
Incorporates system for
Some special twists: e.g.,
resolving disputes
consent decrees
Liquidated damages
Arbitration
Various brands
Other possibilities. . . .

A short history of arbitration in courts

Long practice of arbitrationcommercial, trade, religious; courts would enforce awards
But 19th, early 20th century courts viewed pre-dispute arbitration agreements skeptically
Would often refuse to enforce if one party refused
Late 20th century courts embraced contracts to arbitrate
Most recentlysome skepticism
Justified?
On what grounds?
Expressed through which doctrinal pathways?
If arbitration clause in K, then can dismiss claim (abandon claim) or stay trial for arbitration (not
going to do anything)
Ryan probably wanted to arbitrate b/c: litigation costs, good deal from arbitration company,
And so whats the problem. . . .?
Floss v. Ryans
Lyster v. Ryans
ADA & FLSA claims
Title VII claims for sexual harassment
No agreement because no consideration
Enforceable agreement to arbitrate
No consideration because no
No showing of
obligation to provide any
unconscionability
particular set of procedures
Not unduly harsh
Ryan Steakhouse can probably fix by: fixing rules and telling employees about it, fee shifting so
Ryan pays for everything (so consideration), yet more things youre changing to be like
litigation, more youre losing advantage from arbitration.

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Ferguson v. Writers Guild of America, West, p. 450;

o Ct upheld Writers Guilds arbitration process b/c fair. Litigants concealed from judges;
Writers Guild (employees designed arbitration process themselves & subjected
themselves to it); small select group of people; very complex/difficult to deal with in ct
o Yet diff from ct b/c dont know who decides, no appeals

Whats best reason for enforcing the arbitration agreement here?

Is there an argument it shouldnt be enforced?
Does this case help us create a sensible framework for thinking about enforcement of
arbitration clauses?

Cant allow one party to litigate while the other party has to arbitrate (no option)
Not cool to share costs b/c undoes fee-structuring statute so changes statutes & increases burden
of litigation
What doctrinal levers available for someone challenging fairness of arbitration process?
Two basic routes of attack:
See as a contract, so claims must be framed in contractual terms
No agreement, no consideration (Lyster)
Fundamentally unfair (unconscionability)(rejected in Floss)
Fraud
But no generalized ability to oversee, supervise shape of arbitration process;
should there be?
Does Ferguson suggest not where there is real bargaining and durable
relationships?
Or one can resist arbitration on the basis of special nature of claims in question:
Should some claims not be arbitrable, or only under some conditions?
Claim sensitive tools
Arbitration: Private ordering & Public Law
o What disputes arbitrable?
Could Bush & Kerry agree before election to arbitrate disputed election results?
Why? b/c too public, and important to public interest
What are hallmarks of disputes that should not be arbitrable?
public--how defined?
important--how defined
likely to be unfair--how defined?
Case by case? Or legislation?
Every state permits enforcement of arbitration

What do we want out of them?

Faster, cheaper adjudication
Do we need to compare times & costs seriously, rather than assuming?
Creative adjudication?
Confidentiality?
For whom, under what conditions?

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Is there a better way to police fairness of arbitration clauses?

What do we want out of them?
Faster, cheaper adjudication
Do we need to compare times & costs seriously, rather than assuming?
Creative adjudication?
Confidentiality?
For whom, under what conditions?
Who should police these criteria?
Courts
Is this an area where legislation is needed?
What would it look like?
Arbitration differs from mediation:
Arbitration: contractually agreed to adjudication (binding)
Medication: assisted negotiations, doesnt say which party is right but helps them reach a
soln
Front end: will cts enforce arbitration agreements? (Lyster)
Yes, but is there anything that will make it unenforceable?
Back end: will court review arbitration award? (Ferguson)
No, unless gross issues in arbitration
Summary Judgment
A Brief History of Summary Judgment: From Plaintiffs Boon (benefit) to Defendants Best
Friend
Summary judgment has its roots in 19th C. law reform: a short proceeding for promissory
notes & bills of exchange.
Few facts at issue: signing of note, payment.
Today a generalized procedure, applicable even to cases where facts may be complex.
How far can procedure stretch?
When is it inappropriate?
Rule 56. Summary Judgment . . . .
c) Motion and Proceedings Thereon. . . .The judgment sought shall be rendered forthwith
if the pleadings, depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law.
Demurrer v. Summary Judgment
Demurrer/ (12(b)(6)
Summary Judgment
Would facts, if true, state a claim?
Are material facts disputed?
Assume fact true, yet legal claim?
no genuine issue of material
fact
And
Do undisputed facts state a claim?
entitled to judgment as a

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matter of law
must be no issue of material fact & no
claim

Celotex Corp. v. Catrett, p. 458;

o D contested Ps claim of causation (maybe not from our asbestos) & ability to show
exposure to its asbestos.
o P didnt show anything during discovery that would allow rational jury to conclude that it
was Celotexs asbestos
o Doesnt have to show that P wasnt exposed to asbestos, but just that P didnt show this
during discovery
o DISCOVERY IS MUCH MORE IMPORTANT: b/c cant wait until trial to make
showing that would enable you to get to the jury more pressure on parties to use
discovery more effectively (b/c permits other party to get S/J)
o Now burden of proof for P to prove that can show issue.
Celotex--3: The Alignment of Burdens
Adickes v. S.H. Kress
Celotex v. Catrett
At trial, plaintiff has burden of
At trial, plaintiff has burden of
production on critical issue.
production on critical issue.
On summary judgment, defendant has
On summary judgment, plaintiff has
burden of production
burden of production.
I can show I didnt do it.
Plaintiff cant show I did it.
Celotex: changed burden of proof
Under the regime preceding Celotex the party bringing the motion for summary judgment
had the burden of production.
Now, with Celotex:
In our view, the plain language of Rule 56(c)mandates the entry of summary
judgment, after adequate discovery. . . against a party who fails to make a
showing sufficient to establish the existence of an element essential to that partys
case, and on which that party will bear the burden of proof at trial.
The parties had conducted discovery, and no serious claim can be made that the
respondent was in any sense railroaded by a premature motion for summary judgment. .
. .
Defenses for S/J:
(1) Already have evidence in discovery (other inferences & viewpoints show that
reasonable jury can conclude my claim),
(2) Inadequate time to discovery, or
(3) Additional evidence that D didnt know about b/c didnt ask for during
discovery
Timing component: must produce evidence w/in reasonable time on schedule during discovery,
b/c after discovery, parties can file S/J. If wait until trial, youre screwed.
o If you dont produce documents during disclosure, then might not be able to include
evidence for trial (barred).
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o Affirmative defenses must be proved by D, as claims must be proved by P.

Celotex and the World of Practice
A number of lawyers (perhaps especially the plaintiffs bar) had the custom of treating
discovery relatively lightly, and of waiting until just a few weeks before trial to do
intensive case preparation.
Celotex changes this b/c now everything has to be in discovery or else danger of
dismissal. Therefore might want to push discovery for longer, etc. Expect more
disputes about Rule 16 scheduling.
Bias v. Advantage International, Inc, p. 462;
Bias, basketball player, died of drug overdose yet Ps suing b/c his agent didnt get life
insurance on him. Agent claims that no damages b/c insurer would either have realized
that Bias was drug user & wouldnt have given him policy OR wouldnt have paid b/c
would have said he was lying on policy about not doing drugs.
D moves for SJ. Issue is whether his drug use would have caused the insurer not to issue
a policy.
Could rational trier of fact find that insurer would/could have issued a policy? Ct finds
that tried couldnt have found this. (close line). S/J granted.
Party burden in S/J = burden in trial thus, pushes more into pretrial discovery (have
case by then or else youre screwed!): need effective use of discovery *!, need all
evidence & your case after discovery in case of S/J
May not be able to wait until S/J motion to bring up great point unless you have
reason for not bringing it up earlier! (Rule 11)
Burden of Proof:
a) Burden of Pleading: Toledo & Gomez
b) Burden of Production: locating and presenting evidence (depo, interview,
interrogatives), big deal after Celotex
c) Burden of Persuasion: is story believable?
Judicial Management & Pretrial Conference
Fed v. state courts:
o Fed courts more cases (500/year) than in state courts (1.5-2K) for civil litigation
o State judge: probably more impatient, longer delay
Typical Scheduling & Planning: Everyone Manages
o Rule 26(f) conference of lawyers
o 21 days before Rule 16(b) scheduling conference
lawyers have to meet before they get together with judge
Agree on what they will agree on and disagree on
o Lawyers meet & confer, explore claims, settlement, discovery plans (incl.
disclosure)
o Joint report to judge
o Rule 26(a)(1) disclosures
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o
o
o

o At or w/in 14 days after 26(f) conference

Rule 16(b) scheduling conference
o Discovery & other deadlines, incl. additional conferences
Judge may say that want follow-up conferences just might include
update conferences in scheduling
Discovery (Rule 26)
Settlement conference?
o May not occur; may be combined with other conference
Rule 16(d) final pretrial conference
o Explore settlement; refine area of dispute; witness & exhibit lists
o If going to trial, want everything settled. Allow amended pleadings (Rule 16b?).
Trying to figure out parties claims
o Allow certain # of days for trial (and parties can object: judge has lots of flex in
setting trial times)
o Maybe S/J Rule 56 at this point.

Scheduling litigation:
Purpose of Rule 16 scheduling is to move things forward and expedite trials (efficiently and
effectively).
o If Rule 16 jurisdiction, then:
o Judge must:
Set timetable: schedule order (to join other parties, amend pleadings, file
motions, complete discovery),yet exceptions if minor case
o Judge cant:
Forbid discovery & force parties to settle (denial of due process &
opposite of purpose of Rule 16) maybe can appeal even though no final
judgment
Sanders v. Union Pacific Railroad Co, p. 468;
Before pre-trial conference, P lawyer was too irresponsible
o During final scheduling mtg, Ps lawyer was unprepared and filed things incorrectly, so
judge imposed sanctions under Rule 16f, referring to Rule 37, with the authority from
Rule 16b. Case was dismissed with prejudice.
o If dismissal stood, then P could sue his/her lawyer for legal malpractice
o Yet 9th circ said that district judge should have been at final pretrial conference, so
remanded to same judge.
o Other penalties: send to another judge, pay costs of next stage)
Judicial Roles & Party Responsibility
McKey v. Fairbairn, p. 472;
During trial, directed verdict for D b/c lacked case and not included in pretrial final conference.
o Ps strongest theory of liability was housing code yet P wasnt able to introduce evidence
on that theory during trial b/c didnt include it in the pretrial final conference. Ct asked if
P had other legal theories yet P said no. Parties responsible, clients suffer.

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o Cant introduce new evidence in trial, b/c itll surprise D, and your bad under Rule 11.
Judge cant try cases for you. Lack discovery/time to prepare.
o Rule 15a: can only amend by cts permission or other partys consent or as justice
requires yet doesnt have to.
Driving pretrial conference is management order: directing traffic & direction of trial.
THE TRIER AND THE TRIAL
Want to be a judge
States: several patterns- Gubernatorial appointment and periodic re-election most common.
Terms tend to be 7-10 years
Federal: Nomination by President, confirmation by Senate, life terms.
Judge: discipline
Federal:
Removal only by impeachment, conviction in Senate.
Sub-impeachment discipline mechanism in 28 U.S.C. 372
State:
Most states now have agencies that consider complaints and apply graduated
sanctions, from reprimands to removal.
Reclusion
The Structure of 28 U.S.C. 455
Two categories of bias:
(a) impartiality might reasonably be questioned
(b) specific situations
Duty to inform: (c)
Definitions: (d)
Waiver (e)
Divestiture as escape from recusal: (f)
Examples:
o Intemperate, abusive judge, doesnt read briefs, rulings random: cant recluse b/c not
about disciplining judges as role as judge
o Rule 555: party and case-specific
o Good judge yet financial connections
o Just disqualify herself if financial interest however small if she knows about it
o Can waive impartiality yet not financial interest. 455(d)
o UNLESS after substantial judicial time & judge then sells financial interest, judge isnt
disqualified. 455(f). Yet ONLY if substantial judicial time (~2 year?)
Not Hypo #1:
Scalia took trip with VP Cheney so should Scalia recluse himself?
455(a): impartiality
455(b)(1): personal bias or prejudice concerning a party

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o yet Cheney is being sued in professional capacity, not in personal capacity, yet
about personal visits.
Scalia decides whether to recluse himself
Not Hypo #2:
First Amend challenge of pledge of allegiance for school children.
Scalia made speech suggesting that precedents guiding 9th cirs decision as misguided.
P moved to have him removed (huge deal!). Scalia did remove himself, justice shall
recluse himself
Judge or Jury: Right to a Civil Jury Trial
Amendment VII, U.S. Constitution
In Suits at common law, where the value in controversy shall exceed twenty dollars, the
right of trial by jury shall be preserved, and no fact tried by a jury shall otherwise be
reexamined in any Court of the United States, than according to the rules of the common
law.
Preserved: keeps right of trial from time Constit was created (1791); defines scope
of right
Reexamination Clause: limits judicial overturning of verdicts (eg. State Farm)
Where the Amendment applies: incorporation
Most of Bill of Rights addressed to federal government (See Barron v. Baltimore)
XIV Amendment EPC/DPC addressed to states
In 20th century, Supreme Court held that most of the Bill of Rights incorporated into
the XIV and therefore applied to the states
But not the VII, b/c says explicitly: any Court of the United States. States have
their own constitutions & statutes guaranteeing jury trial.
So Amend VII only applicable to fed cts yet states have similar provisions in their Constit
Suits at common law:
Technical, historical meaning (series of situations) & people interpret when trial is good
Need to know remedy in order to know if you can have a jury trial.
Remedy matters b/c remedy tells you historically whether these types of claims were
brought in common law, as opposed to only courts in equity (where you dont get a
jury) historical interpretation (since 1791 adoption of BoR)
Damages = JURY!
Injunction (specific performance), reformation, rescission = ct of equity, NO JURY!
Priority Rule: if want both ct of equity and ct of common law remedies, then divide up
issue. Jury decides C/L remedies (damages amt) and judge decides whether to grant
injunction, etc.
o Beacon Theatres v. Westover: when factual questions overlap, jury decides and
judge bound by that!
Enable parties to (1) avoid judge, and (2) can bring claim so that ct of C/L overlaps with
ct of equity issues so jury decides
Legislature via statute, can make jury question (matter of fact) while judge can decide S/J (if
no matter of fact and law).

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Issues not present in 1791:

How might person think that matter is triable by jury? Easy if statute states remedy
or jury/not. Or analogize to old statutes (historical reconstruction).
Examples:
o P alleges D has stolen valuable ring.
o P wants D to pay for it; jury?
Yes, b/c damages
o P wants ring back; jury?
Yes, b/c replevin is remedy in ct of common law
P alleges D wrongfully occupied Blackacre.
o P wants rent; jury?
Yes, damages.
o P wants D off land; jury?
Yes, common law writ of ejectment.
Rule 38: Jury Trial of Right
38b: Demand; 38d: Waiver
Demand for jury by: (1) respond anytime after commencement of action and w/in 10
days of last pleading (ans?) directed on such issue OR (2) put in your pleading (Rule 5d).
o If P amends complaint & adds in remedy for ct of C/L & can demand jury trial for
first time, then amended pleading for first time triggers jury trial.
TRIAL

Were spending a couple of days talking about motions that are rarely granted during
proceedings that occur in only about 2% of all filed cases because:
outcomes at trial create the shadow of law in which settlement negotiations occur
Celotex aligned burdens at summary judgment with burdens on directed verdicts
(weed out many cases b4 trial)
one can think about discovery sensibly only if one understands what evidence one
will have to produce to avoid summary judgment and at trial
it tells us how rational and how irrational trial outcomes can be

Burdens Examined:
Car accident. Fault?
Pleadings:
Rule 12b6 challenges whether P has met burden of pleading (demurrer)
Rule 12c: motion for judgment on pleadings; Rule 12f: motion to strike redundant,
immaterial, impertinent, or scandalous matter.
o Any party can bring 12c or 12f motion.
Pretrial:
Rule 56: summary judgment: after discovery complete yet after trial begins

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o Aligns burdens of production in pretrial with burdens of production during trial

(motion for S/J).
o After Celotex, look to see if evidence during discovery would satisfy burden of
production (if we were in trial)
At Trial:
Directed verdict after trial but before jury deliberations & judgment not withstanding
verdict (j.n.o.v.) after jury verdict

Pleading
Demurrer;
12(b)(6) or 12(c)

Summary
judgment
(Rule 56)

Before Trial

Two Cases, Three Ideas

Production
Persuasion
=
Directed Verdict, Verdict,
after Celotex
j.n.ov
Judgment
(Rule 50)
During & after trial

Reid v. San Pedro, Los Angeles & Salt Lake Railroad, p. 516;
Issue of whether cow got on RR tracks from open gate (farmers bad) or broken fence
(RRs bad). Claim of RRs negligence in fence maintenance. Cow closer to gate.
Appellate ct found that P failed to satisfy burden of persuasion in showing cow entered
through fence (no jury could rationally find for P, b/c not enough evidence, what is
rational proof?).
Burden of persuasion is big deal, etc.
Directed verdict (or jnov): didnt carry out burden of production
Burden of Pleading
Demurrer (12b6) for P;
12c/d for D or P

Burden of Production
Summary Judgment (56): w/
evid available, can parties go
to jury?

Burden of Persuasion
Rule 50: directed verdict

Opposing testimony: cant have directed verdict if opposing testimony even if you know that
jury will probably believe one witness over another.
It, of course, is true, generally, that where there is a direct conflict of testimony upon a
matter of fact, the question must be left to the jury to determine, without regard to the
number of witnesses upon either side.
Grant directed verdict or S/J only if NO rational trier of fact can find for party opposing
judgment.
Yet court can enter JNOV if think that inferences inconsistent or too tenuous, yet not
suppose to be looking at credibility of witnesses.
Burden of persuasion:
Civil burden of persuasion: 50-50, equally probable then decision goes to whoever
doesnt have burden of persuasion (rarely happens)

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Criminal burden of persuasion: more probable than not (very high & might change
outcome)

Rule 59: New Trials; Amendment of Judgments

59(d): On Courts Initiative; Notice; Specifying Grounds. Judge can order new trial on
his/her own initiative
Hypo: If judge denies both parties Rule 50 motions, yet P has stronger case than D, yet jury
comes out for D, then Judge could grant Ps Rule 50 renewal to make sure that outcome is legit
(run it through system again).
Rule 50: Judgment as a Matter of Law in Jury Trials; Alternative Motion for New Trial;
Conditional Rulings
J.m.l (directed verdict) vs. New Trial
Judgments as a matter of law:
New Trial:
Only on motion
On motion or judges initiative
Focus on adequacy of evidence
Evidentiary adequacy or process
Replace jurys verdict with judges
Sends case to new jury
judgment: for rational trier of fact to
No final judgment if granted
come out for party opposing verdict (he
And therefore unappealable
party opposing motion meet its burden
(unless conditional as part of a
of production?)
j.n.o.v order)
Results in final judgment
If both motions for jnov and
And therefore immediately
new trial, then if court gives
appealable (b/c replaces
jnov and jnov doesnt stand,
judgment of jury)
then can get new trial
(conditional), then if this goes
to appeals, and appellate ct can
look at both jnov and new trial;
what happened in Lind v.
Schenley?)

Rule 50 vs. Rule 59

(Assume parties have made no motions.)
At end of trial, judge concludes that
At end of trial, judge concludes that she
plaintiff has presented no evidence on
erred in admitting evidence on
causation.
causation.
Can judge grant j.n.o.v. to ?
What ruling?
Can judge order new trial?

Rule 59
a) Grounds.
A new trial may be granted. . .
(1) in an action in which there has been a trial by jury, for any of the reasons for which new
trials have heretofore been granted in actions at law in the courts of the United States; and

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(2) in an action tried without a jury, for any of the reasons for which rehearings have
heretofore been granted in suits in equity in the courts of the United States.
(b) Time for Motion.
Any motion for a new trial shall be filed no later than 10 days after entry of the judgment. . . .
(d) On Initiative of Court.
. . . [T]he court, on its own, may order a new trial for any reason that would justify granting
one on a party's motion. . . .
Common Sense or Jury Lawlessness?
Lind v. Schenley
Peterson v. Wilson
Jury believes in-credible story, but
Jury misunderstood instructions, but
appellate court says trial judge
appellate refuses to allow new trial.
powerless to order new trial.
Because: cant use certain factors in to
Because: judge just thought incredible
consideration for inquiry into validity
story (yet jury was for P). AppCt
of a verdict (Fed 606(b)). System has
thought that judge was imposing his
filters so only cases that can go either
own opinion if jury could have gone
way go to jury. So if system works
either way even if other way is more
properly, cases that go to jury can come
likely.
out either way.
SO even if jury misunderstood
instructions, verdict can come out either
way, so its okay.
Voir dire: process of interviewing prospective jurors
Granting new trial b/c mistake with voir dire:
If juror gets lost and finds intersection of accident and tells jury, then probably grant
motion for new trial b/c jurors cant bring in new info (outside influence) lawyers
fault!
Yet if juror lives near accident site, then lawyers bad b/c should have asked during
questioning (permissible to bring experience with you to jury)
FORMER ADJUDICATION
Claim Preclusion:
Example: car accident, P already recovered with final judgment, yet P sues D again for same
injury for same accident.
Defense: affirmative defense: claim preclusion/res judicata (Rule 8c)
S/J, not judgment on pleadings: b/c judgment on pleadings means no valid claims; yet
S/J says that you have already addressed this judgment (evid of former lawsuit) so dont
have right to bring this lawsuit again
Two lawsuits are same = same injury, same accident
Rationale for defense: efficiency, finality, avoidance of inconsistency (D doesnt always
wonder if theyll get sued again & still fight about everything)

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Precedent: rules along different cases, similar principle; Res judicata: same cases,
difference in that its different cases
o No denial of due process b/c youre already heard in first case
o No denial to apply precedent to your case when youre not heard in case that
started cases (stare decisis), b/c applying law created from facts of other case.
Due process includes only the right to be heard, yet you dont start with a blank
slate (yet you can argue against the precedent).
o Rule 11b2: reversal of existing law
Preclusion (res judicata) (1) claim preclusion (res judicata) & (2) issue
preclusion (collateral estoppel)
Rule 8e:
. . . A party may also state as many separate claims or defenses as the party has
regardless of consistency and whether based on legal, equitable, or maritime
grounds.
Hypo change of Rule 8e:
. . . A party may also state as many separate claims or defenses as the party has
regardless of consistency and whether based on legal, equitable, or maritime
grounds, and shall state any such claims that arise out of the same transaction or
occurrence.
Law of preclusion is common law, so would just put C/L into statute

Frier v. City of Vandalia, p. 577;

#1 state action: want replevin yet judgment for city
o Dismiss b/c failure to state claim (procedural due process), similar to Fuentes
(stove), yet really seemed to rule on facts as if S/J
#2 fed ct: want punitive & compensatory damages ($200K) under 42 USC 1983.
o Striking principle: if got right result, but for entirely different reason, then just
looking at result and not reasoning for lower ct (on appellate level)
o App Ct said should have precluded yet DistCt says not stated claim, but same
conclusion, so its okay.
Preclusion: bars people from litigating claim theyve never actually litigated (b/c from same
transaction) yet had opportunity to raise claim in first lawsuit.
Claim Preclusion Approaches:
1. Transactional: all claims arising out of same transaction or occurrence precluded from
re-litigation (broadest test used)
2. Same evidence (Illinois)
3. Primary right (California): test rltship to justify barring 2nd claim (confusing)
No inherently correct approach
Questions to ask:

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Did you an opportunity to bring it up in first lawsuit? (even if meritorious claim) ouch
As rltship btw original case & claim brought is less similar, efficiency gained from
combining them disappears (no sufficient rltship btw claims).
Did it come from same factual out-of-court package? (make same/continuous story:
relation: closeness to rltship to first claim)

Pre-filing investigation: thorough and include all claims w/ factual investigation

Rush v. City of Maple Heights (preclusion case), p. 54;
Ct changed preclusion law in Ohio during case. Fair? (motorcycle case of motorcycle injury
personal injuries)
Claim Preclusion:
A broad preclusion rule will put pressure on plaintiffs to assert all related claims, because
they will fear preclusion.
Principles of former adjudication suggest liberal amending of pleading:
Yes b/c if dont allow people to amend pleadings to add transactionally related
claims, should be liberal in allowing amendments of pleadings! (eg. McKey
v. Fairbairn: DC housing, precluded in 2nd lawsuit)
Yet if cts are stingy in granting amendment, then suggests preclusion should be
narrow.
What if judge thinks case too large to try efficiently?
Sever under Rule 42: might put pressure on everything in lawsuit, yet judge has
opportunity to sever into separate trials.
Policy results:
Want efficient trials so want all claims together.
So create CL preclusion: if you dont put transactionally related claim in first lawsuit
(where you have an opportunity to be heard, then you cant bring it again)
Yet then that puts pressure on people to put every claim they have against someone in
pleadings.
Should allow liberal amendments or else preclusion would be harsh and unfair.
Also, cts can deal with lots of amendments by severing pleadings if unmanageable. Or
else, it would actually be detrimental for judge to have this. (Rule 42)
Not against due process b/c had an opportunity to be heard in case

Dont apply claim reclusion to family members even if had chance in 1st law suit to bring
claim (except Martino?)

Rule 13a: Compulsory Counterclaim:

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 party's claim and does not
require for its adjudication the presence of third parties of whom the court cannot acquire

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jurisdiction. 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 . . . .
Martino v. McDonalds, p. 585;
McDonalds sued Martino for breach of K and got consent judgment against them. Yet now
suing for anti-trust violations
No pleading here: bright-line rule for when adjudication starts;
o Rule 13a (compulsory counterclaim), so prevented from getting barred b/c compulsory
counterclaim b/c no pleading
Yet since judgment (line for preclusion), barred by preclusion.
o All claims & defenses are precluded, if defense would have prevented outcome of 1st
lawsuit. 2nd claim attacks 1st claim directly.
Policy: Undermines ct and inconsistent btw same parties for same issue. Yet cts not so much
concerned about different facts, etc. b/c differentiating factors such as quality of presentation,
arguments, etc. so not such a big deal as much if different from precedent.
Settlement: no judgment, yet probably wouldnt be able to bring claim b/c breach of K of
settlement (affirmative defense)
Lawyers have to think, do you have any counterclaims during settlement
Note: Rule 12b6 might be seen as judgment on merits
Two Ways to Understand Preclusion:
Efficiency
Consistency
If we let people chop claims up into tiny
If we let people bring claims that
pieces, its both unfair (to D) and to other
undermine integrity of first judgment, its
litigants waiting their turn.
both wasteful and a threat to adjudication
So--bar second claim IF- So--bar second claim IF- P had chance to raise
It would have been a defense to first
And its related to first claim
claim
Whats related?
And, it undermines integrity of 1st
judgment
Is that just a fancy word for
saying we dont want the
courts to look bad?

Why should we care about efficiency so much that we bar claims no one has brought?
Why should we care about integrity of judgments this much if we understand that
judgments are contingent and uncertain?

Who is a party?
If not party in first lawsuit, not precluded yet have to worry about precedent.
Precedent
Binds non-parties
Law, not facts.

Precedent and Preclusion

Preclusion
Binds only parties
Law and facts

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Open to argument that precedent should

be over-ruled or distinguished.

Not open to reargument in most cases.

Why is preclusion tighter than
precedent?

Searle Brothers v. Searle, p. 589;

Sons testified that father had a half-interest partnership w/ them in first lawsuit, yet entire
property was granted to the mother (in divorce proceedings).
Were sons represented and opportunity to bring claim in first lawsuit (partnership
interest)?
In first lawsuit, they were arguing about father having half-interest in partnership, yet in
2nd lawsuit, talking about their own half-interest in partnership. So not precluded.
YET dissent argues that since the brothers knew of their fathers interest & their
relationship to the property & testified, were heard, etc.
Purpose of collateral estoppel: protect party from being subject to same issue to
litigate more than once.
Possible soln: Ex-wife should quiet title, stall divorce to get partnership resolved & get
new lawsuit with brothers as parties, b/c:
Judgment binds all parties in lawsuit
Richards v. Jefferson County, p. 593;
P1 sues County for legality of new tax. P2 sues County for same thing. P1s lawsuit against
county doesnt preclude P2 b/c P2 wasnt represented in first lawsuit (not class action).
o Yet 1st lawsuit sets precedent for 2nd lawsuit.

Transactional preclusion permissible because plaintiff has an opportunity to bring all claims
in first suit.
Maybe even desirable to require plaintiffs to package related claims efficiently.
So its fair to preclude only if the precluded party has had a fair opportunity to litigate the
claim.
On rare occasions non-party so closely controls first action we treat her as a party.

The Path So Far: Whats a claim? Whos a party?

Some claims barred by former adjudication even if not previously litigated (Frier, Martino)
E.g.,arising from same transaction /occurrence
But--General proposition is that separate individuals have separate claims even when they do
arise from same t/o as prior litigation(Searle):
Exceptions: joint ownership, control of prior litigation (privity, virtual
representation)
Due process marks outer boundaries of preclusion: cant bar one whos not had
opportunity to litigate claim. (Rivera/Zarmi principle)
Preclusive effect: (if based on merits)
Trial & judgment
Directed verdict
Summary judgment
No preclusive effect:

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Dismissal on Rule 12(b)(1) or (2) motion: no jurisdiction

b/c not based on merits (looking at all facts & then decide case)
On what theory should one decide whether the judgment in these cases precludes a second
lawsuit involving the same claim? Fair opportunity to be heard?
Rule 41. Dismissal of Actions
(b) Involuntary Dismissal: Effect Thereof.
For failure of the plaintiff . . . to comply with these rules or any order of court, a defendant may
move for dismissal. . . . 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
a (1) dismissal for lack of jurisdiction, (2) for improper venue, or (3) for failure to join a party
under Rule 19, operates as an adjudication upon the merits.
Whats on the merits for purposes of claim preclusion?--2
Dismissal as a sanction for disobedience of discovery order (e.g., Steffan v. Cheney)
o Claim preclusion b/c failure to comply with ct order & if re-file, its undermining
sanction.
o Its fair to preclude you b/c you had opportunity to be heard yet didnt follow orders
Gargallo v. Merrill, Lynch, p. 598;
#1 state ct lawsuit: brokerage house sues for debt from margin acct yet G (P) counterclaims
for federal securities fraud (which is exclusively for federal ct). Didnt dismiss fed securities
counterclaim b/c lack jurisdiction yet case dismissed b/c G didnt follow discovery orders.
#2 fed ct lawsuit: G sues for fed securities fraud, yet D moves to dismiss (Rule 41b): res
judicata. Yet ct says, not precluded b/c state ct had no subject matter jurisdiction, so no claim
preclusion. Yet go back and figure what preclusive effect Ohio state cts would attach in this
situation (no subj matter jurisd & discovery violation) not what fed ct would do, even tho
its in fed ct.
AppCt decides that state ct would not attach preclusive effect to judgment so dont as well.
KEY POINTS: (1) fed ct treats it as if jurisdictional decision (instead of from grounds of
discovery), (2) yet then P gets away with discovery compliance sanctions!

If D answers complaint, then triggers Rule 13a (compulsory counterclaim) & precludes
defenses (compulsory counterclaims) not mentioned. Exception: no jurisdiction!
Preclusion if failure to comply with discovery or else sanctions wouldnt be effective
No preclusion in jurisdiction issues
12b6 dismissal:
Whats argument for treating dismissal on demurrer as:
Federal: Precluding subsequent claim on same facts.
Had opportunity to amend complaint but you just didnt, foolio!
Wasnt heard on merits yet, however, danger of getting law changed.
Maybe if dismissal with prejudice b/c failed to amend pleadings, then
preclusive under Rule 41.
Some states: Not precluding subsequent claim on same facts.
Cf. Keidatz v. Albany, CA Sup Ct. 1952. CA ct says: No preclusive
effect to demurrer. Yet 52 years old!

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Soln: withdrawing during demurral procedures if P, or have D withdraw

demurrer to settle instead.

Erie RR v. Tompkins: if in fed cts b/c diversity, then must use state laws & state common laws
Semtek Intl Inc. v. Lockheed Martin Corp., p. 597;
Diversity action in fed ct in CA was dismissed b/c SoL expired. Yet P refiled in Maryland
state ct. Barred?
o Yes, b/c fed ct with diversity juris has same scope as if state ct rendered judgment (look
to see how state ct where fed ct is would apply preclusion)
Putting it all together: Gargallo +Semtek +Keidatz=?
Federal diversity action brought in district court in Los Angeles. Claim & counterclaim.
files 12(b)(6) motion to dismiss complaint; granted.
files Rule 37 motion to have counterclaim dismissed for s failure to comply with
discovery orders; granted.
refiles amended complaint on same facts in CA court; answers, asserting claim
preclusion (b/c Rule 41 dismissal) as affirmative defense and filing same counterclaim.
Both sides move for summary judgment on the grounds of claim preclusion.
Claim preclusion for D (12b6) (def in fed ct, yet have to apply CA law b/c
diversity jurisd, so use Keidatz law),
But policy reasons that Rule 37 sanctions be preclusive: upholding sanctions
YET were talking about entire issue being precluded, not just claim. Is that
too much?
Black letter of issue preclusion
Same issue in both cases
Adequate incentive and opportunity to litigate issue: diff from claim preclusion,
where you end up precluding claims never litigated!
Actually litigated and determined
Essential to the judgment
Do we have same issue?
same defn?
different legal std?
(eg. criminal and civil charges)
(exception: yet if higher std in first lawsuit & party with larger burden wins, then
if 2nd suit has lower std, then precluded)
Crim charge first (judgment for P), then civil charge preclusion.
The Issue of Issue in Issue Preclusion
Proposition: an issue consists of:
the legal and factual proposition (e.g., negligence, breach, theft, etc)
the procedural setting in which that proposition is decided (burdens of proof,
discovery, etc.)
Illinois Central Gulf Railroad v. Parks, p. 603;

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Two lawsuits.
First lawsuit: Bertha sued CG for her injuries & then Jessie sued for loss of consortium for
Berthas injuries. Bertha won & Jessie lost. RR = neglig, yet uncertain how jury found
Jessie didnt get loss of consortium (essential to judgment or not litigated/determined)
Second lawsuit: Jessie sued CG. RR says, issue preclusion that J is contributory neglig but
since thats not SOLE reason jury could have NOT found for J, cant issue preclude. BUT
issue preclusion of RR for neglig.
Soln: special verdict form (so know reason). Judge can rule more explicitly than jury.
What if a judgment rests on several grounds?
Restatement of Judgments I
Restatement of Judgments II
All litigated and decided issues
No issues precluded if judgment rests
precluded from re-litigation.
on alternative grounds
All grounds for decision are valid for
issue preclusion.

Party-driven system:
Preclusion of claims: size of litigation pkg (efficiency, consistency), if you dont bring
it, you lose it.
Must be transactionally related to some claim youve raised, party in past
lawsuit (due process)
Preclusion of issue: prepared to export finding from one lawsuit to another.
Similar to precedent yet only do this with legal principles; while issue preclusion
covers facts and application of law to fact.
Must be same issue, litigated/decided (final judgment) & essential to judgment,
suffering party must have been in past lawsuit (due process)
Be careful when deciding issue preclusion b/c judicial system decides this
(Was this foreseeable that same issue came up again?)
Final judgment? Yes, then issue preclusion. (same law?)
Administrative hearing: is procedural setting sufficiently similar in both
lawsuits? (eg. one administrative hearing & another regular case)
Different stds, different incentives, different procedural opportunities
Multiple suits: lose & win? Preclusion?
Hypo:
If #1: B v. RR and RR found as neglig, then in #2: J v. RR, is RR precluded from
relitigating negligence?
Depends. RR had opportunity to litigate issue. Party burdened (has sucky
issue preclusion) must have opportunity to litigate issue. SCt then looks for
reasons why RR wouldnt litigate vigorously in first lawsuit.
Previously, only issue preclusion if mutuality (same parties in both lawsuits)
Parklane:
Abandonment of mutuality (b/c fair if burdened party has an opportunity to litigate.
Policy: Unfair b/c RR bound to bad holding (neglig) yet not if ct finds no neglig, b/c unfair to
new P (b/c they didnt have chance to litigate their case: no due process)

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Yet burdened party can argue that party could have joined as party in first lawsuit. In
Parklane, D had no opportunity to join govt or administrative proceedings.

Partial summary judgment is not final judgment. Therefore, more incentive to settle if think
negative judgment.
State Farm Fire & Casualty Co. v. Century Home Components, p. 615;
Multiple suits with inconsistent verdicts. Preclusion?
Cant preclude b/c inconsistent results so unfair to preclude Ds from relitigating issue of
liability.
Solving problem of inconsistent verdicts & preclusion:
Probably encourage more settlement if more parties depending on one verdict
Yet might be aberration: that 2nd verdict can expose, instead of putting eggs in same basket
Cts can prevent this beforehand: Rule 42. Consolidation; Separate Trials
(a) Consolidation.
When actions involving a common question of law or fact are pending before the court, it
may order a joint hearing or trial of any or all the matters in issue in the actions; it
may order all the actions consolidated; and it may make such orders concerning
proceedings therein as may tend to avoid unnecessary costs or delay.
After consolidation: Rule 16. Pretrial Conference
c) Subjects for Consideration at Pretrial Conferences.
At any conference under this rule consideration may be given, and the court may take
appropriate action, with respect to . . . . (12) the need for adopting special procedures
for managing potentially difficult or protracted actions that may involve complex
issues, multiple parties, difficult legal questions, or unusual proof problems;
Closing the Circle
Full Faith and Credit Act: states cant ignore other states judgments (so people cant go to
another state to run away from judgment). Gives state judgment nationwide validity.
Full Faith and Credit, Supremacy Clause: Const. Art. IV, 28 USC 1738; fed cts must
respect state judgments.
FFC v. Reopened Judgments
Full Faith & Credit:
Reopened judgment
Requires second court to give same
Action in rendering court asserting that
effect to the judgment that rendering
some fundamental defect justifies
court would attach to it; correctness
setting judgment aside: not an appeal,
irrelevant.
can be brought only in court rendering
Const. Art. IV, 28 USC 1738
judgment
Exception: N/A if fed ct didnt have
Rule 60
jurisdiction
Reopening Judgments:
Rule 60:

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Rule 60(b)[T]he court may relieve a party . . .for . . .: (1) mistake, inadvertence, surprise,
or excusable neglect; (2) newly discovered evidence which by due diligence could not
have been discovered in time to move for a new trial under Rule 59(b) ; (3) fraud . . . ,
misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5)
the judgment has been satisfied, released, or discharged, or a prior judgment upon which
it is based has been reversed or otherwise vacated, or it is no longer equitable that the
judgment should have prospective application; or (6) any other reason justifying relief
from the operation of the judgment. The motion shall be made within a reasonable time,
and for reasons (1), (2), and (3) not more than one year after the judgment . . . was
entered or taken.
Hypos:
#1: Bertha v. RR (IN state court), Judgment for defendant
Suppose Bertha finds:
Witness confesses he was lying (WHY?)
Newly discovered evidence, yet if lawyers bad for not asking, then falls
under due diligence (lawyer should have done better job), Rule 60b2
For no reason, then cant reopen case yet can sue witness for fraud
If D threatened witness, then Rule 60(b)(3) misconduct of an adverse party
New evidence: a video camera film showing RR was negligent (train sped up
instead of slowing)
Due diligence, Rule 60b2 (probably job of lawyer on front end)
RR failed to produce requested report showing prior accidents at same crossing
Def RRs fault & since one concern is costly for other side to reopen case, its
ok since its Ds fault anyways!). Not question of due diligence.
JURISDICTION
Constitutional Environment: punitive damages (substantive due process) & procedural due
process (Fuentes, preclusion, Full Faith & Credit)
Constitutional features constrain & enable litigation:
(1) Due Process clause: a limit on state authority to hear cases involving certain defendants,
(2) Article III: a limit on power of federal courts to hear certain kinds of cases
Pennoyer v. Neff, p. 68;
In first action, Oregon can obtain personal jurisdiction over Neff if:
(1) attached property at outset of case (based on assumption that if based on property,
notice sufficient) OR
(2) personally served with process w/in borders of state (summons, complaint) b4
lawsuit begins
Policy: unfair b/c D had no notice, so judgment is invalid. Violation of substantive due
process.
Pennoyer as doctrine
Judgment entered without jurisdiction not entitled to Full Faith & Credit
And therefore subject to collateral attack

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If youve litigated question of jurisdiction or appeared in ct, precluded from raising

jurisdiction question.
Assertion of jurisdiction can be challenged directly under Due Process clause
No opportunity to raise issue in first lawsuit (or fail to raise it) so shouldnt be
precluded from 2nd lawsuit to challenge the claim

Pennoyer as a universal problem

Every legal system recognizes that its not competent to handle every dispute in the world
Pennoyer defines how legal system defines which disputes its not going to handle (limits
on states jurisdictional powers)
Pennoyer in Practice
Jurisdiction if. . . .
D served with process while present in state
Property in state attached before suit
Status adjudication of a state resident
Valid statute required submission to jurisdiction as a condition of doing business in state
To challenge jurisdiction (not properly served):
(1) Move to dismiss in first court, yet should request to get appearance, so you cant get
served while attempting to dismiss claim.
(2) Default on judgment, its okay b/c you have no jurisdiction b/c judgment is not
enforceable. (wait until enforcement action: exception to Full Faith & Credit clause).
If you appear in first lawsuit at all: better raise jurisdictional issue or else
waived/precluded
Policy: Full faith and credit clause important (b/c national economy) yet potentially unfair b/c
holding people responsible for judgments in distant cts. Pennoyer prevents unfairness.
Need personal jurisdiction for protection under Full Faith and Credit clause.
Jurisdictional Challenge, Preclusion, and Waiver
Jurisdiction is like other procedural & substantive rights-- A litigant can raise issue and lose (even when court is wrong)
Appeal, not collateral attack is route to correct error
A litigant can waive the right by failing to raise it at the correct time
So long as waiver rules are fair, this is constitutional
Cf. Rule 38: one can waive right to jury trial by failing to raise it in a timely
fashion
Jurisdictional Challenge & Waiver: F.R.Civ. P. 12
#1. 12(b)6 motion; then 12(b)(2) motion
Not permitted b/c you have to raise all defenses together (12h) and cant raise
defenses again (12g). Should have raised it in 12b6 motion.
Now, defense is waived, yet had fair opportunity to raise it. Fair to P to bundle it
or else tactical delay. Pre-answer is compromise btw forcing all defenses at same
time & stringing each one along.

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If personal jurisdiction is about fairness about what forum youre being sued in,
youve had plenty of notice by then.
#2. 12(f) motion (motion to strike); then 12(b)(2) motion
Not permitted b/c motion and defenses waived if you dont join all motions and
add them if its permitted (12g) unless its preserved by 12h (which is only
failure to state claim).

Options if think forum D is sued in lacks jurisdiction over D:

1) ignore and default: then challenge collaterally if attempt to enforce
2) pre-answer motion
3) answer as affirmative defense
Tactics: look at strong case based on merits. Is jurisdictional route best way to go?
Expenses?
Always make pre-answer motion. What do you have to lose?
Ct deciding 12b2 (jurisd) motion. If you respond: ct where complaint was
made; if you default: your home turf. Difference btw two ct systems?
Physical-presence jurisdictional test:
If tricked or kidnapped and brought to state, lack jurisdiction b/c thats wrong.
How about in plane over state? (challenges to presence jurisd test)
Yet how about incorporal aspects: corporations, etc.
International Shoe Co. v. Washington, p. 81;
Personal jurisdiction case (redefines personal jurisdiction)
International Shoe challenges Washington States levying of unemployment tax on
International Shoes alleged employees. Substantive due process challenge.
Ct found that Washington ct lacked jurisdiction over International Shoe.
A New Framework:
Historically the jurisdiction of courts to render judgment in personam is grounded on
their de facto power over the defendant's person. Pennoyer v. Neff. But now . . . due
process requires only that in order to subject a defendant to a judgment in personam,
if he be not present within the territory of the forum, he have certain minimum contacts
with it such that the maintenance of the suit does not offend traditional notions of fair
play and substantial justice."
New ideas of: fairness & substantial justice (sliding scale), case-by-case basis
Issues in determining jurisdiction from Shoe: (1) nature of contacts in state, (2)
connection of contacts with claim, (3) substantial fairness
Specific jurisdiction: if contact created claim, then sufficient fair & just to have jurisdiction
Jurisd: car accident in WY & victim sues, D has jurisd in WY
No jurisd: former employee from MO moves to WY and sues for dispute from old job
while in MO (employer has no contacts in WY thats related to claim), contact didnt give
rise to the claim. (moving to WY)
o Jurisdiction if employee sued in MO b/c defendant has substantial contacts in
MO. Ct doesnt need to have jurisdiction over Ps, only Ds. (jurisd issue only for
D)

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NOTE: Plaintiff gets to pick forum in first place, so D can question

forum/jurisdiction while stupid for plaintiff to, b/c P brought claim in that
court.
o If employer incorporated in DE, then P has jurisd in DE even if claim doesnt
arise from anything that happened in DE.

Easy Jurisdictional Cases

Under Shoe, almost never say never, but sometimes say always.
Always sue in these cases:
Individuals: state of domicile
Corporations
State of incorporation
State of principal place of business
Harder cases
Accidentally go to state: did you purposely avail yourself to state?
Shoes driver on way through Montana to WA. Blizzard blows truck across border into
Ps car. Jurisdiction?
Independent trucker, based in Ohio, on regular run from MO to WA, collides in WY with
WA tourist, who sues in WA. Jurisdiction in WA?
Harris v. Balk: extending in rem jurisdiction
Backpack theory of personal jurisdiction: attachment of intangibles as basis for
jurisdiction
If A lets B borrow $20, then if P wants to sue A, then the $20 (which B owes A)
can be attached & subject to jurisdiction (anywhere B is). Its similar to attaching
property and suing in wherever B is, yet its with intangible goods.
Shaffer v. Heitner, p. 90;
Shareholders >> breach of fiduciary duty (permitted company to violate anti-trust law
>>> Directors of Greyhound
Jurisd sought in DE b/c attaching shares to company (applicable to 21/29 directors) b/c
DE has law: no matter where stock bought, treat stock as if its in DE (authorized by
Pennoyer for quasi-in rem attachment?)
So P attaches stocks of 21 out of 29 directors for jurisdicition
Jurisdiction challenged: violation of due process b/c no notice & oppy for hearing
(Fuentes), regardless of notice/hearing: unfair under Shoe to assert jurisd here
Ct says no jurisdiction (attachment of quasi-in rem ppty under Pennoyer) b/c sue only 21
out of 29 directors, & with fiduciary duty, have to sue all directors.
DE new law: consent to jurisdiction of DE when becoming director of DE corporation
Hypo:
As inherited land in Idaho from distance relative but never been there before & lives in CA.
#1: Neighbor children hurt b/c attractive nuisance on property. Jurisd?
Idaho jurisd b/c claim about property (arising from property).
#2: Car accident in LA. After Shaffer, jurisdiction b/c attach property?

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No, b/c property is unrelated to claim. Yet can use property to enforce judgment
elsewhere (Full Faith and Credit Act).
#3: Yet if you owned 80% of non-governmental land in Idaho, then might have substantial
contacts sufficient for jurisdiction.
Factors that make up contacts: activity, business, ownership of property
Not factors in determining jurisd: (for non-custodial parents), presence of ones
children is not contact (b/c discourage parents visiting their children)
Pennoyer: personal service is enough
International Shoe & Shaffer: no jurisd if no claim to Ks in state
Shaffer policy changes:
(1) assimilates in rem jurisdiction to International Shoe reqments (substantial jurisd, folding in
in rem jurisd)
(2) States that individuals and corporations treated similarly.
Hypo:
#1: D fails to pay hotel bill in OR, does hotel have jurisd?
Yes, b/c claim arising out of limited K in OR
#2: Teacher & D in car accident in CA. Can you get serviced process in OR (when youre there)
Not based on cases yet b/c thin Ks. After Shaffer, no jurisd yet Burnham might change
things.
Benefits of DE law: easier for corporations to insure directors for breach of fiduciary duty
(insurable claim in DE)
Hanson: maybe Ds purposely availed themselves to DE law (International Shoe)
NOW, ASK IN JURID: (1) nature of claim, (2) how closely related to contact
General jurisdiction: if talking about specific claims occurring in that state, then dont have to
worry about general jurisdiction
McGee, Hanson as Framing Cases
McGee: [W]e think it apparent that the
Hanson: [U]nilateral activity of those
Due Process Clause did not preclude the
who claim some relationship with
California court from entering a judgment
nonresident D cannot satisfy
binding on respondent.
requirement of contact. . . . It is
K delivered in CA
essential . . . That there be some act by
Premiums mailed from CA
which the defendant purposefully
Insured a resident of CA
avails itself of the privilege of [forum
CA has manifest interest
state].
Hanson had jurisd in PA and DE (b/c
purposely availed of knew doing biz
there)
Wwide to Burnham: Three Approaches:
Facts:
What factual patterns?
See cases as about common business and family case types

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Manufacturing & distribution: Wwide, Asahi

Franchising: Burger King
Marital Litigation: Burham
Internet contacts: Pavlovich
What would be the smallest change in facts that would lead to a different result?
Doctrine:
How does this case change doctrinal structure?
Are any wrongly decided?
Ignoring doctrine, can one tell a story about the fact patterns that explain results?
Counseling & Strategy:
Why did they do it?
What were parties seeking from jurisdictional litigation? Why did they bother?
How much did it matter?
What will winner win, loser lose as a result of decision?
Could they have done it differently:
After litigation started: could the loser have avoided the loss?
Before litigation: Which allow counseling of clients?
Importance of jurisdiction: regional variation in verdict, erratic jury verdict (more local)
Worldwide party structure, p. 99
Robinsons (NY) >> Manufacturer, National Distributor, Regional Distributor (WWide: NY),
Local Distributor (Seaway: NY)
Cant go into fed ct b/c no diversity with fellow NY-ers (regional & local distributor).
Question of whether distributors purposely availed themselves to lawsuits in OK (yet might
be diff if in CT or VT, b/c close to NY and NYers probably go there a lot). Car ads?
Fed ct needs (1) subj matter jurisdiction AND (2) personal jurisdiction
Rule 4K1a: fed ct will have same personal jurisdictional reach as state cts would have, wont
have more.
Asahi Metal Industry Co, v. Superior Court, p. 107;
Zurcher sued people for product liability for motorcycle, including Cheng Shin (tube mfr).
Cheng Shin impleaded Asahi (valve mfr). Then, after settlements, only parties left were
Cheng Shin Asahi.
Jurisdictional challenge: Asahi says, can you sue me in CA? Ct says, cant sue Asahi in
CA. Important to Asahi not to be in CA b/c dont know language & Jap cts dont give big
damages (US lawsuits are really expensive). Ct doesnt say Asahi has insufficient contacts
but jurisd is substantially unfair.
Approaches to Jurisdiction
Jurisdiction as doctrine:
Power, fairness, sovereignty
Jurisdiction as facts:
Do patterns make prediction possible?
Jurisdiction as strategy:
Why do litigants stage jurisdictional fights?
What do they gain or lose from forum selection?

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If modern personal jurisdiction is about facts concerning contacts. . . .

What happens when challenges?
then has burden of showing that there is jurisdiction.
In doing so, can make use of evidence easily availablephone book, ads.
But what if needs more?
Discovery; tricky b/c lack time (sometimes juris questioned in pre-answer
motion), so have to ask permission for discovery limited to jurisdictional
question
Burger King Corp. v. Rudzewicz, p. 113;
BK franchiser (R) issues with BK. BK sued R in FL ct. BK has K that says, must use FL law
(yet no forum selection clause).
FL has jurisd b/c: 20-year rltship with continuing K and P knew he was dealing with FL
hdqtrs b4 signing K
Smallest factual change might lead to different result: get rid of FL law in K, shorter K
rltship, ignorant that FL is corporate hdqtrs & only dealing with Michigan office
Asahi: no juris even if min contacts; Burger King: jurisd even if no minim contacts (fact
that R is businessman taken into acct)
Pavlovich v. Superior Court, p. 118;
Dood with internet program that messes with DVDs and copyright rights of something. Did
computer geek know company who owned copyright was located in CA, so then he would be
under CAs jurisd. No CA jurisd b/c he didnt know about it.
Smallest factual change leading to a different result: P making $ off it (selling it), if sells
to everyone except CA (shows knowledge of CA being where company is), talks about movie
reviews? (probably not b/c know movie industry in CA, but usu have to know that person
youre doing biz with or aiming comments to is in CA).
Bad lawyering b/c: failed to figure out what they needed to demonstrate (Ds knowledge of
where hes likely to inflict most harm)
o Failed to make factual showing of: P knew that company was in CA who had copyright.
Solns: (1) arbitration clause or forum selection clause (in Burger King, Asahi): maybe cant b/c
product liability
Wrong result?
Burger King: Local dealer held to answer in a hostile forum to a suit brought by a
professional plaintiff, unfair that dealer has to go to FL.
Pavlovich: probably had good idea what he was doing
Personal jurisd: very fact-intensive application: fair?
Hypo:
After Pavlovich decision DVD CSS moves to reopen judgment, presenting evidence that
Pavlovich lied when he said he was unaware of site of harm; in fact he knew it was CA.
Jurisd judgment shouldnt be reopened b/c discovery is about uncovering lies. Prob can sue
Pavlovich for perjury.

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Maybe reopen b/c this is party to case lying yet would also have to prove that Pavlovich
knew most injury would be felt in CA

DVD CSS sues Pavlovich in Texas (where he now lives), seeking injunction.
Pavlovich answers, asserting lack of personal jurisdiction as one of defenses.
He argues that the claim arose in IL, harm in CA, that TX therefore has nothing to do
with the suit.
s bestand winningresponse to this argument is personal jurisdiction
The Structure of Personal Jurisdiction
Shoe creates sliding scale
Light contacts support jurisdiction only over claims related to those contacts
(specific jurisdiction)
Heavy contacts support jurisdiction over unrelated claims (general jurisdiction)
For individuals: permanent residence
For corporations: principal place of business, state of incorporation
Substantial contacts in state
Microsoft in CA
Microsoft incorporated, principal place of business in WA. Suppose Carla, former exec,
quits after Ms persistent failure to promote her. Carla moves to CA, where she files an
action in federal district court in L.A., alleging discrimination on the basis of gender.
Microsoft files preanswer 12(b)(2) motion.
Issue:
does MS have enough contacts in CA for general jurisd? Not specific
jurisdictioin b/c claim didnt arise out of biz of MS in CA
What cases relevant: Coastal video case
Any additional information needed:
Business MS does there (%age), advertisement, whats big enough? ($ or
%age)
Coastal Video Communications Corp. v. The Staywell Corp., p. 123;
Nature/extent of business Ks (videos, pamphlets for hospitals)
Burnham v. Superior Ct, p. 128;
H visits W & children in CA yet originally from NJ. W serves H with papers while in CA.
He has personal jurisdiction. Not majority opinion.
Justice Scalia: because weve always done it that way and Shaffer didnt change the way we
think about this.
Justice Brennan: Shaffer changed the way we think about this, but there are contacts and its
fair.
Life after Burnham--1
Suppose Small CA company negotiates loan with NY bank that has CA office.
Negotiations, documents, loan all in CA.
As extra collateral, Bank requires a personal guarantee by president of SmallCo.

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Can Bank sue SmallCo in NY?

Under BK, probably. Yet CA company! So unless something in loan docs about
it, cant sue company in NY (b/c corporate interest). Are personal v. corporate
entities treated different?
Suppose president visits NY on vacation; is there jurisdiction if hes served with process?
Before Burnham, no, but now, tag jurisdiction. (case can go both ways)

AGREEMENTS
CONSENT TO JURISDICTION: Suppose an agreement between SoftCo, an Indian
software developer, and Microsoft. Agreement says, SoftCo agrees that for any claim
arising out of this agreement it will submit to jurisdiction in any state or federal court in
the U.S.
Valid?
Not choosing WA so equal grounds? Disparate bargaining power doesnt
matter. Only matters if fundamentally unfair forum.
Fairer to D b/c not choosing specific state
Permissive (says you can, but doesnt force you into particular forum)
CHOICE OF LAW: 2. All disputes arising under this contract shall be decided under
the law of the United Kingdom.
Choosing fairly well estd law; but no jury in UK (can be heard in US but use UK
law)
BK: just choice of law, not forum selection clause. Wasnt sure if forum selection
clause would be legit.
FORUM SELECTION CLAUSE: 3. All parties agree that any lawsuit arising from
this agreement will be brought in the Court of Queens Bench, London, UK.
Similar to Carnival Cruise line (have to go in certain court)
ARBITRATION CLAUSE: 4. Any dispute arising from this agreement will be
submitted to binding arbitration under the rules of the International Chamber of
Commerce, Geneva, Switzerland.
Probably not okay involves choice of law clause- procedural and sometimes
substantive laws.
Unfair to employee (similar to Ryans) b/c inconvenient
taking out of cts and into private arena: combo of choice of law & forum
selection clause (b/c in negotiations, parties agree on rule of procedures &
substantive law)
COGNOVIT/CONFESSION OF JUDGMENT: 5. Defendant confesses judgment
and agrees that, without further notice and process plaintiff may enter judgment against
him in federal district court in Philadelphia.
Waive process before beginning (only for narrow circumstances), such as loans,
AND D can still challenge assumption (then okay for due process).
Agree that I can enter judgment against you
How could these have changed outcome of cases:
Asahi: forum selection or choice of law or consent to jurisdiction
Burnham: forum selection (only in NJ)

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Worldwide: choice of law, forum selection (yet most cts say that if you get injured in OK,
use OK law: choice of law doesnt matter b/c product liability)
Burger King: forum selection clause
Malpractice:
Any lawyer who drafts an agreement and fails to consider whether her client could avoid
problems or expense with a clause specifying the forum for resolving disputes has committed
malpractice.
o Considering a forum selection or similar clause doesnt mean using such a
clause; it means thinking about it.
Do I really need it?
Is it valid under the circumstances?
Will this clause have effects on the rest of this contract that will be a problem?
(consequences) Invalidate clause? (over-reaching? then dont look good
in ct)
Constitutional Requirement of Notice
Mullane v. Central Hanover Bank & Trust(A case to know by name), p. 140;
NY banking law ests pooled trusts for small accts. After several years of operation trustee
bank brought action for accounting.
Representatives appointed: (1) one for vested beneficiaries, (2) one for contingent
beneficiaries
Published notice to beneficiaries. (similar to Pennoyer)
Representative of beneficiary raised two constitutional challenges--1. No jurisdiction over out-of-state beneficiaries, therefore no binding judgment.
2. Even if state has power, failure to notify beneficiaries violates due process.
Courts response to challenge to NYs power over out-of-state beneficiaries:
[T]he interest of each state in providing means to close trusts that exist by the grace of
its laws . . . is so insistent and rooted in custom as to establish beyond doubt the right of
its courts to determine the interests of all claimants, resident or nonresident, provided
its procedure accords full opportunity to appear and be heard.
Notice in Mullane:
o Beneficiaries were notified by local newspaper publication (Pennoyer), b/c assuming
that trust = property (then sufficient notice if seize property/trust). Yet this case is
btw Pennoyer and Shaffer (where combines property and person together)
Holding: Notice by publication violates due process if know beneficiaries addresses
o Also: reasonable costs if you contact all known contacts, then lower costs and
youve notified enough people so they can represent others
Cheaper to mail b/c already mailing them checks. Previously, had to
do individual processes (expensive) as oppose to published notice.
Now, can use mail.
Mullane stands for proposition that reasonable notice is based on
circumstances (costs, representation) & may be via mail. Good for class
action.
Hypo:

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200K beneficiaries + addresses. Does Mullane require notice to all? Or plausible that
only requires notice to some? Easier probably to contact ones youre sending checks to.

Courts response to due process challenge to notice by publication:

Notice by publication inadequate under these circumstances
o Maybe point is Ds representation
o International Shoe: makes it all into circumstances (depends)
Is it enough to mail to someone with substantial amt at stake, or do you
have to mail to everyone?
Implications:
o What form of notice is sufficient? (in other cases?)
o Will mail notice to an individual always be enough?
o Is individual notice in some form always reqd?
Losing opportunity to gain is like losing something = class action plaintiffs similar to
Ds in Mullane. Yet is this enough of a difference to change outcome?

If no adequate notice, then no power to adjudicate! May be related that if substantial interest
at stake, then need more adequate notice.
Now if you have someones address, then should give them notice by mailing them letter.
Depends on whats reasonable: based on circumstances
Problem: might be uncertain if adequate notice, yet solution is rules of court & statutes,
which specify forms of svc. If those statutes & rules are met, then adequate notice.

Rule 4:
Mail: not servicing notice by mail, but ask D to waive notice for greater response time
(request for waiver of service) (Rule 4d)
o D need not respond yet if D unreasonably refuses (no good reason to), then may have
to pay for service.
o If D fails to waive service, P services via state law (Rule 4e1); or have someone
personally deliver it (person who is not party: Rule 4c2) under Rule 4e2.
Waiver of service doesnt waive jurisdictional objections (Rule 4a)
The Federal Courts and Personal Jurisdiction
Federal courts subject to constraints of due process. Not really b/c procedural due process
(look at circumstances under Shoe)
Federal Courts and Personal Jurisdiction: Rule 4(k)
Nothing in jurisdictional doctrine says courts have to exercise all available jurisdictional
power. Some states dont go to constitutional limits.
Rule 4 limits jurisdictional reach of federal courts.
Rule 4(k): the jurisdictional charter of the federal courts
k) Territorial Limits of Effective Service.

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(1) Service of a summons or filing a waiver of service is effective to establish jurisdiction over
the person of a defendant (A) who could be subjected to the jurisdiction of a court of general
jurisdiction in the state in which the district court is located . . . .
-OR- [In several other specified situations]
SUBJECT MATTER JURISDICTION
Comparing fed to state courts how do you decide which one youre in? Subject Matter Jurisd
Yet nice b/c personal jurisdiction same for fed and state courts located in same state.
Relating Personal to Subject Matter Jurisdiction
To be in fed ct, need both:
o Personal jurisd:
limited by due process clause
concerned about rltship of P and claim
Rule 12b2
o Federal Subject Matter jurisd:
Limited by Art III, statutes to elaborate
Concerned about boundaries of fed judicial power
Rule 12b1
A Taxonomy of Federal Jurisdiction
Original jurisdiction / Appellate jurisdiction
Are there fed issues which cannot be heard in fed trial court but which can be heard in
appellate jurisd?
Exclusive jurisdiction/ Concurrent jurisdiction
Divorce action: only state can hear
Federal Subject Matter Jurisdiction as Law: Sources of Power & Limits
Constit Art III, Statutes (of how Congress can deploy Art III jurisd: create lower cts, say
how much power SCt gives to lower cts), diversity jurisd; Case Law (ct interpretation of Art
III & statutes);
Federal Subject Matter Jurisdiction:
Claims arising under federal law (Constit, statutes, treaties)
State law but diversity
Boat: admiralty jurisdiction
Louisville v. Nashville RR v. Motley, p. 171;
Congress worried about the RRs bribing officials with free RR passes, so made free
passes illegal. Yet Mottleys had life-time pass from settlement. They wanted specific
performance to still use free passes under K law (settlement agreement).
Motley >> specific performance >> RR (fed ct); Ms prevail yet RR appeals. SCt
dismisses fed trial cts verdict b/c no jurisd.

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Subj matter jurisd so important: SCt raises after litigation b/c important to police
line of fed-state power b/c fed govt limited to enumerated powers
MOTTLEY PRINCIPLE: only if claim itself rests on federal law, does it arise under
federal law & can be in federal court (subject matter jurisdiction)
o Everything turns on: who is suing whom for what? How does claim of plaintiff
arise under federal law (has to be in complaint)? 1345-1346: only purpose to
create federal original jurisdiction if US defendant or plaintiff.
o Based on Art III & 28 USC 1331 (regulates jurisdiction of fed district cts)
o Yet at end of state ct suit, SCt has power to hear b/c 28 USC 1331 regulates DCt
but not SCt.

Two texts, two outcomes:

Article III:
28 U.S.C. 1331:
The judicial Power shall extend to all
The district courts shall have original
Cases. . . [a]rising under this
jurisdiction over all civil actions
Constitution, the Laws of the United
arising under the Constitution, laws,
States, and Treaties made.
or treaties of the United States.
Interpreted more broadly.
More narrowly interpreted (must arise
under fed law)
Implications
Congress can create original federal jurisdiction over Mottleys claim, why? Too many
lawsuits already in fed ct.
Original jurisdiction: important b/c not all cases get to SCt and get decided in fed ct even if
originally in state ct.
Congress can states that one rule/statute exclusively in fed court (to have uniform regime
of fact application)
States: get stake in Constit: apply Constit law in their own cts
Why do litigants care whether theres original federal jurisdiction? What difference does
it make?
Practical: dockets, Rules, nationwide enforcement of judgments; misc. procedural
practices
Strategic: life tenured judges; more sympathetic to some sorts of claims; less
sympathetic to some sorts of claims?
Hypo:
Consumer v. CalGrocery (federal court)
Claim: s compliance with NAFTA meat inspection standards resulted in unsafe
product which harmed s health.
moves to dismiss
12(b)(1)lack of federal subject matter jurisdiction
Similar to Mottley, where fed law is treaty, not statute. Most likely product
liability claim & grocery stores defense is based on NAFTA fed law.

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Dismissal on subject matter jurisdiction (12h3). Even though plaintiff party improperly invoked
jurisdiction, they can have the case dismissed for lack of jurisdiction.
If both 12b6 and 12b2 (subject matter jurisdictional issue), then:
If file together: question of which dismissed case. Most times, judges just address
jurisdictional question & therefore, case isnt precluded.
Jurisdictional dismissal doesnt preclude claim from being filed in state ct.
Since you can make subject matter jurisdiction claim anytime in trial, best bet to do 12b6
& then 12b2 later on in trial to be certain of preclusive effect of dismissal.
YET if dismissed in 12b6, yet 12b2 issues too, P might refile in state ct with defense than
not preclusive b/c no subj matter jurisdiction (collateral attack on jurisd).
o GENERAL RULE: can raise jurisdictional effect anywhere in cases, yet if lose on
merits, cant ask 2nd ct to ignore decision made on merits.
28 U.S.C. 1332 in Mottley variation
Sec. 1332. Diversity of citizenship; amount in controversy; costs
(a) The district
courts shall have original jurisdiction of all civil actions where the matter in controversy
exceeds the sum or value of $75,000 . . ., exclusive of interest and costs, and is between (1) citizens of different States; . . .
(c) For the purposes of this section. . .
(1) a corporation shall be deemed to be a citizen of any State by which it has been
incorporated and of the State where it has its principal place of business . . .
For corporation, pick whichever one defeats diversity
Redner v. Sanders
CA citizen says that since residing in FR, French citizen. Yet residence citizenship, &
citizenship is reqd for 1332(a)(2).
Need complete diversity: if any state represented on both sides then no diversity. (Strawbridge v.
Curtis, 1803) interpret 1332, not Constit
Policy reason: b/c have diversity to ward off regional bias yet if from same state, concern
isnt that big. (no state bias)
28 U.S.C. 1332(a) . . . .
For the purposes of this section, section 1335, and section 1441, an alien admitted to the United
States for permanent residence shall be deemed a citizen of the State in which such alien is
domiciled.
(As amended 1988)
****
Saadeh v. Farouki
Saadeh (Greece) >> Farouki (Jordan, PRA): amt in controversy satisfied.
No diversity b/c both non-citizens. Yet with 1988 amendment to 1332, Farouki is PRA =
citizen of Maryland. Results in increase scope of diversity while amendment to narrow
scope of diversity jurisdiction.

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Ct chose purpose of statute over literal meaning of statute: so NO diversity! Prevent

extending judicial powers beyond rights enumerated by Constit (by allowing suits btw two
non-citizens)

Savings clause: can re-file against is dismissed solely on jurisdictional grounds (extends SoL in
order for you to re-file in state ct)
Dual citizenship: only US citizenship is relevant for purposes of diversity under 28 USC 1332
Supplemental Jurisdiction
Subject matter jurisdiction is never waived (12b1) yet personal jurisdiction is waived (12b2)!
If Mottleys had won damage judgment in fed ct and jurisdiction issues not brought up, and not
appealed, how would RR bring up jurisdictional defect & sue to recover judgment?
Mottleys probably keep $. For personal jurisdiction, waived, yet for subject matter
jurisdiction: uncertain. Doubtful that able to claim subject matter jurisdiction collaterally.
A Quick Review of Supplemental Jurisdiction
Article III permits federal district courts to include in their jurisdiction some claims over
which they would not have original jurisdiction--if they are sufficiently related to claims
over which they do have original jurisdiction.
28 U.S.C. 1367 bestows somebut not all-- of the constitutionally allowable supplemental
jurisdiction.
Bestowed by 1367(a)
Limited by 1367(b)
Story this far:
Arising under jurisdiction:
The well-pleaded complaint rule gives plaintiffs less original jurisdiction than
Article III would permit. 1331
Diversity:
The complete diversity rule gives plaintiffs less original jurisdiction than Article
III would permit. 1332
1367 & the Constitution
1367 grants the federal courts jurisdiction over claims they could not hear if brought
independently.
How could that be constitutional?
Gibbs: Jurisdiction, in the sense of judicial power, exists whenever there is a
claim arising under [federal law] and the relationship between that claim and the
state claim permits the conclusion that the entire action before the court comprises
but one constitutional case.
Gives ct power to hear claim that are closely enough related to claim ct
has jurisdiction over, thus = one Constit case. (Constit hook which
supplemental jurisd hangs on).

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28 U.S.C. 1367
a. Except as provided in subsections (b) and (c) or as expressly provided otherwise by
Federal statute, in any civil action of which the district courts have original jurisdiction,
the district courts shall have supplemental jurisdiction over all other claims that are so
related to claims in the action within such original jurisdiction that they form part of the
same case or controversy under Article III of the United States Constitution. Such
supplemental jurisdiction shall include claims that involve the joinder or intervention
of additional parties.
b. In any civil action of which the district courts have original jurisdiction founded solely on
section 1332 of this title (diversity jurisdiction), the district courts shall not have
supplemental jurisdiction under subsection (a) over claims by plaintiffs against
persons made parties under Rule 14, 19, 20, or 24 of the Federal Rules of Civil
Procedure, or over claims by persons proposed to be joined as plaintiffs under Rule 19
of such rules, or seeking to intervene as plaintiffs under Rule 24 of such rules, when
exercising supplemental jurisdiction over such claims would be inconsistent with the
jurisdictional requirements of section 1332.
c. The district courts may decline to exercise supplemental jurisdiction over a claim under
subsection (a) if-(1) the claim raises a novel or complex issue of State law,
(2) the claim substantially predominates over the claim or claims over which the district
court has original jurisdiction,
(3) the district court has dismissed all claims over which it has original jurisdiction, or
(4) in exceptional circumstances, there are other compelling reasons for declining
jurisdiction.
d.
Only applicable to additional parties raised by D instead of those raised by P.
Broader to more narrow: 1367a (okay if related to claims in action w/in such original jurisd)
1367b (for diversity jurisd, no claims by P under Rule 14, 19, 20 or 24) 1367c (if
unique or non-fed claim dominates, ct can dismiss)
First make sure that ct has original jurisd, then supplemental jurisd over claims related
that form same controversy or case under Art III
Related to claim: similar to joinder, claim preclusion, and relation back (adding additional
claims: Rule 15c)
Supplemental jurisdiction important if (1) no other fed subject matter jurisdiction: such as not
federal law or (2) no diversity jurisdiction with additional claim (DIVERSITY ends when trying
to ADD SOMEONE FROM SAME STATE AS OTHER PARTY).
Jin v. Ministry of State Security, p. 192;
P (Chinese person, permanent resident alien, CA, DC) >> fed racketeering claim, state
defamation claim >> D (Chinese entity, Chinese individual)
Moved for both jurisdictional (12b1: subj matter jurisd, 12b6: failed to state claim), Yet
actually, SoL ran out so no claim.
Ct may but doesnt have to decline supplemental jurisdiction (28 USC 1367c): if:

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DCt has dismissed all claims over which it has original jurisdiction, or
Novel or complex issue of State law:
o want to keep in state system so they can sort it out, CA ct should have last word
on CA law (b/c if in fed ct, parties cant appeal to state ct)
o litigant can appeal after final judgment if fed ct decides to keep even though novel
state law; questions of (1) abuse of discretion to hear this, (2) what does state law
say about this?
o fed ct decision is not binding to state ct system.
Claim that has supplemental jurisdiction substantially predominates claims.
Federal Removal Jurisdiction: Defendants Forum Selection

Can move from state to federal court if diversity jurisdiction

28 U.S.C. 1441: Actions removable generally
(a) Except as otherwise expressly provided by Act of Congress, any civil action
brought in a State court of which the district courts of the United States have (1)
original jurisdiction, (2) may be removed by the defendant or the defendants, to the
district court of the United States for the district and division embracing the place where
such action is pending.
(b) Any civil action of which the district courts have original jurisdiction founded on
a claim or right arising under the Constitution, treaties or laws of the United States
shall be removable without regard to the citizenship or residence of the parties (
1331). Any other such action shall be removable only if none of the parties in interest
properly joined and served as defendants is a citizen of the State in which such action
is brought ( 1332: diversity jurisd).
D can remove b/c P already chose forum (state fed ct)
HOME-TERM EXCEPTION (in diversity jurisd): If Ds from state in which action was
brought, cant remove b/c already on home turf. Why be unhappy?
28 U.S.C. 1446: Procedure for removal
(a) A defendant or defendants desiring to remove . . . shall file in the district court . . . a
notice of removal signed pursuant to Rule 11 . . . containing a short and plain statement
of the grounds for removal. . .
(b) The notice of removal of a civil action or proceeding shall be filed within thirty days
after . . . a copy of the initial pleading. . . If the case stated by the initial pleading is not
removable, a notice of removal may be filed within thirty days after receipt . . . of a copy
of an amended pleading, motion, order or other paper from which it may first be
ascertained that the case is . . . removable, except that a case may not be removed on
the basis of jurisdiction conferred by section 1332 of this title more than 1 year after
commencement of the action.
Must remove w/in 30 days of initial pleading (filing). Or if amended complaint adds federal
claim or home state D drops out (basis for original jurisd), then can file notice of removal
w/in 30 days after amending pleading.

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Cant be removed under 1446 if basis is 1332 (diversity jurisdiction) & initial pleading
was over a year ago. So strategy for P to attempt to stay in state ct, to amend pleadings with
increased damages later. Yet judge might deny you amendment b/c did that on purpose.

Caterpillar, Inc. v. Lewis, p. 198;

P1 (KY) and P2 (MA) both suing D1 (DE, IL) & D2 (KY). P1 settles with D2, yet P2 still
suing D2. D1, w/in one year, requests removal b/c diversity jurisdiction. Ct incorrectly
allows removal even though still two parties on opposite sides in same state.
Yet at end of trial, P2 and D2 settle, so actually have diversity jurisdiction. As long as at end
of trial, fed ct has jurisd, its okay. B/c considerations of finality, efficiency, and economy.
Yet if no jurisd, can remove at any time (12h3).
Policy: wouldnt encourage Ds to attempt this, b/c (1) have to escape detection, (2) bet that
party making it not diverse would disappear from lawsuit before judgment.
Contrary to Farouki
Congress could provide broader diversity jurisdiction on removal than on original
jurisdiction.
o Because the complete diversity requirement is statutory rather than constitutional.
JOINDERS

Modern U.S. Process has two distinctive characteristics that distinguish it from earlier
common law as well as from most contemporary legal systems:
Broad discovery
effect of broad discovery to explore factual context of issue
Broad joinder
Parties put all claims they have against each other to the lawsuit & add other
connected parties
Thus--joinder is important in its own right.
Joinder also recapitulates most of the course so far. Each joinder decision may involve:
Strategy: how will this affect suit?
Pleading: Does the Rule allow this?
Often a jurisdictional issue, Asahi v. CA Superior Ct
We care b/c w/o joinder, well worry about issues such as:
Discovery: what will parties learn about others?
Concerns about preclusion
Which joinder rule applies?
Does it allow joinder of a claim or party?
If so--Is there personal jurisdiction over joined party?
Note special provisions for stretched personal jurisdiction for impleader (see Rule
14, 4(k)(1)), interpleader (see 28 U.S.C. 2361)
If so is there Federal subject matter jurisdiction over joined party or added claim?
Note special provisions for additional parties in 28 U.S.C. 1367 and in 1335
(bare diversity in interpleader)

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Rule 20a: All persons may be joined as P if they assert any right to relief jointly, severally, OR in
alternative in respect of OR arising out of the same T/O or series of T/Os AND if any question of
law or fact common to all these persons will arise in the action.
So need to have person have claim arising out of same transaction/occurrence
Need to know if supplemental jurisdiction over person joined (need diversity if state
claim for joinder partys claim) what happens if its a state claim with diversity,
but then you join a fed claim & lose diversity?
1367: need supplemental jurisdiction (if no jurisdiction) yet not applicable if P uses
Rule 20!
The Defendant Strikes Back: Counterclaims
Rule 13. Counterclaims
(a) Compulsory Counterclaims
A pleading shall state as a counterclaim any claim. . . aris[ing] out of the transaction or
occurrence that is the subject matter of the opposing party's claim and does not require for its
adjudication the presence of third parties of whom the court cannot acquire jurisdiction. . . .
(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 party's claim.
Plant v. Blazer Financial Services, p. 642;
P sues Blazer Financial group for Truth-in-Lending act. Statutes carries with it special
damages (attorney fees & statutory damages) & federal law.
Yet P also has unpaid debt. Blazer attempting to offset damages by counterclaiming unpaid
debt. Previously didnt sue her b/c she lacked funds, probably. Issue if compulsory
counterclaim, b/c then fed ct has to rule on it, or else with permissive counterclaim, fed ct
lacks jurisd and doesnt have to hear it. If not compulsory counterclaim, Blazer probably
wont bring in state ct b/c too much $ and wont offset damages.
IF COMPULSORY COUNTERCLAIM, THEN HAVE JURISDICTION BASED ON
1367 (both say arising out of same T/O).
Arguments: maybe P is enforcing adequate information in financial services (similar to
Attorney General) so shouldnt say its a compulsory counterclaim. Or arg evidence
differently.
Ct held that it is compulsory counterclaim b/c related!
Supplemental jurisdiction over compulsory counterclaims in fed ct b/c: Rule 13a + 1367
Okay in diversity jurisdiction b/c compulsory counterclaims against people already parties
in suit (so already have diversity jurisdiction).
Failure to assert compulsory counterclaim results in waiver: defendant barred from
bringing it in separate suit.
If its a compulsory counterclaim, supplementary jurisdiction will attach:
Same transaction or occurrence will be part of same case or controversy
Cross-Claims
1. If P >>> M & D and M wants to say, I didnt do it, D did.
a. Deny complaint in answer; no cross claim proper (shouldnt blame someone else)

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2. What if M wants to sue D for amt owned on delivered cars?

a. Not possible: cross claim doesnt arise from same t/o. MUST ARISE OUT OF
SAME T/O OF ORIGINAL ACTION (Rule 13g: cross claim against coparty)
3. Dealer wants to assert claim against for unpaid repair bill on different car. Possible?
a. Yes; permissive counterclaimbut requires own jurisdictional basis. (Rule 13b:
permissive counterclaim)
A Mind-Bending Finale: Great Lakes Rubber
1. Great Lakes>> Unfair comp (state law) >>>Cooper
<<<<<<Federal antitrust<<<<<<<
No jurisdiction b/c two parties from same state with state law. Tho federal antitrust
is defense, doesnt matter. Must be in complaint (pleading) from P.
Cooper >>>>Fedl. Antitrust>>>>>G.L.
<<<<Unfair comp.<<<<<<<<<<<
Held: Unfair competition claims compulsory to antitrust; therefore supplemental
jurisdiction attached. (If start off with federal claim, then can use supplemental
jurisdiction) so matters who sues first!
So Far:
A
Rule 8 (pleadings)
B
Rule 13a (compulsory counterclaims)
Rule 13b (permissive counterclaims)
Procedures:
Step 1: Does the applicable Rule allow joinder of this claim (or the addition of this party)
under these circumstances?
If notstop right there.
Step 2: If soare there jurisdictional issues?
Federal jurisdiction over additional claim or party
Original or Supplemental
Personal jurisdiction over an additional party
Rule 18. Joinder of Claims & Remedies
(a) Joinder of claims
A party asserting a claim to relief as an original claim, counterclaim, cross-claim, or
third-party claim, may join, either as independent or as alternate claims, as many
claims, legal, equitable, or maritime, as the party has against an opposing party.
Seems as if it allows everything. Yet has jurisdictional limitation.
Limitations from other rules that are more narrow in scope. Can add additional claims
tagged along to other cross-claims.
Rule 20. Permissive Joinder of Parties
(g) Permissive Joinder.
All persons may join in one action as plaintiffs if they assert any right to relief . . .
arising out of the same transaction, occurrence, or series of transactions or occurrences
and if any question of law or fact common to all these persons will arise in the action.

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Rule 13: Counterclaim and Cross-claim

(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 party 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 cross-claimant.
Limits Rule 18a b/c has to arise out of same T/O that is subj matter either of original action
or of a counterclaim.
Reconciling Rule 13g with Rule 18a:
o First must satisfy Rule 13g (arising out of same T/O) and then can add in other claims
(Rule 18a).
Eg. Youre suing Audi for product defect, yet they are countering that you
didnt pay for car. Then first make sure arising from same T/O and then Audi
can add other cars who owe them $.
Reconciling 18(a) with Rules 20, and 13(g), and 14, and some others
Rule 18(a) applies if there is no other, more restrictive rule governing this situation.
If there is, that Rule (say Rule 20), applies to the first claim asserted.
Thereafter, Rule 18 allows additional unrelated claims.
But (did I say but), there may be jurisdictional issues with
unrelated claims.
YET judge can then sever claims into separate trials or put them together whatever
is most efficient (Rule 42)
If P D, then can add all claims you want (b/c no more restrictive rule).
Mosley v. General Motors, p. 648;
Employees, past employees & those rejected for employment all suing GM for racial and
gender discrimination under fed law, Title VII of CRA of 1964 (re: granting relief, not being
hired, fired, promoted)
Strategy/Policy:
o Join b/c show GMs pattern of discrimination, fee-shifting (more expensive for
individuals if separate trials).
o Dont join b/c: divide & conquer: easier to paint individual P as disgruntled
employee as oppose to 10-20 employees who experience this, Ps are more likely to
get punitive damages if joined.
o Either way, prejudicial to a party.
No jurisdictional issues b/c federal state in question.
Ct found that can join parties. Doesnt mean that gender and race discrimination case will
come out same way.
Rule 20 with Mosley:
Same transaction, occurrence, or series of transactions or occurrences and question of
law or fact common to all these persons [that] will arise in the action?

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When talking about former adjudication, if parties or cts see it coming, can join together
or consolidate cases if arising from same T/O. Combine lawsuits to get unified
adjudication even though may split lawsuits to determine damages if D is liable, etc. (eg.
if D liable for fire). To get consistent outcome.

Pitfalls of Broad Joinder

If Mosley goes to judgment. Then say, 12 women employees sue GM for discrimination b/c
pregnancy. Ps in previous Mosley case barred if one of those 12 women & legal issues of
pregnancy occurred during same period covered by Mosley case (even if Ps claim was about
race discrimination).
o Have to bring all racial and gender discrimination claims in first lawsuit (or else sue
lawyer for malpractice).
POLICY: Goal is efficiency & consistency. If multiple joinder gets hairy, then theoretical ans:
Severance under Rule 42(b)
Rule 15: amend pleadings, if add additional parties. Before parties served its answers, can
amend w/in 15 days. After that, need written consent of other parties or leave from ct
(discretion).
Depends on TIMING (for ct discretion in allowing amendment & additional parties)
Rule 42: judge can separate or combine trials
PRINT 50/1
THIRD-PARTY PRACTICE
If A B yet its Cs fault for Bs liability, then if C isnt in lawsuit & A wins, then C isnt
precluded from saying that its As fault (b/c C didnt have an oppy to litigate it & not party in
first lawsuit) so B shouldnt be liable and neither is C! (if 2 separate lawsuits)
Joining Additional Parties: Impleader, When Can Someone Be Required to Share the Pain?
Rule 14: Third-Party Practice
(a) When Defendant May Bring in Third Party. (both P and D can implead parties)
The plaintiff may assert any claim against the third-party defendant arising out of the
transaction or occurrence that is the subject matter of the plaintiff's claim against the
third-party plaintiff, and the third-party defendant thereupon shall assert any defenses as
provided in Rule 12 and any counterclaims and cross-claims as provided in Rule 13.
[A] defending party, as a third-party plaintiff, may cause a summons and complaint to be
served upon a person. . . who is or may be liable to the third-party plaintiff for all or part
of the plaintiff's claim against the third-party plaintiff.
Theory of impleader: Impleaded party is or may be liable to Impleader Defendant for any
liability incurs as a result of Impleaded party. IF ME THEN YOU!
o If implead, then minor cost savings from having 1 v 2 proceedings

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o All parties are bound by determination of same issues in cases. (no inconsistent
findings b/c all parties in same lawsuit)
o Plaintiff probably not happy b/c if P wanted to sue 3rd-party, would have added 3rd
party into original lawsuit (drags out proceedings & increases costs). For 3rd party,
probably doesnt matter b/c would have been sued anyways.
Compulsory or permissive counterclaim is important b/c then determine whether supplemental
jurisdiction & if precluded later on.
CAN NEVER SAY, Its not me, its him but CAN SAY, Its not me (denial in answer) &
If me, then him (Impleader: Rule 14).
Rule 4k1B (100-mile bulge): served outside state yet no more than 100 miles from court house
(place summons issues) is w/in jurisdiction (for parties joined under Rule 14 & 19).
Rule 4. Summons
k) Territorial Limits of Effective Service.
(1) Service of a summons or filing a waiver of service is effective to establish jurisdiction
over the person of a defendant (A) who could be subjected to the jurisdiction of a court of
general jurisdiction in the state in which the district court is located, or(B) who is a party
joined under Rule 14 or Rule 19 and is served at a place within a judicial district of
the United States and not more than 100 miles from the place from which the
summons issues. . . .
Created in case no personal jurisdiction over impleaded party (esp in New England, Middle
East states)
Impleading
Impleader creates no substantive liability.
If theres a right to indemnity or contribution in the substantive law, impleader allows the
suit for indemnity
Dont grant impleader if lack jurisdiction. 1367a: arises out of same T/O, while
1367b: doesnt apply to claims made by plaintiffs under Rule 14 (no supplemental
jurisdiction)
POLICY: b/c then P has incentive to wait until counter-claim in order to sue
others and avoid jurisdictional limitations.
IF P IMPLEADS & diversity jurisd, then may have jurisd problems b/c no
supplemental jurisdiction possibly!
28 U.S.C. 1367(a) and Rule 14
(a) Except as provided in subsections (b) and (c) or as expressly provided otherwise by
Federal statute, in any civil action of which the district courts have original jurisdiction,
the district courts shall have supplemental jurisdiction over all other claims that are
so related to claims in the action within such original jurisdiction that they form part of
the same case or controversy under Article III of the United States Constitution. Such
supplemental jurisdiction shall include claims that involve the joinder or intervention of
additional parties.

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Gives you jurisdiction (b/c related claims)

28 U.S.C. 1367(b) and Rule 14
b) In any civil action of which the district courts have original jurisdiction founded solely
on section 1332 of this title, the district courts shall not have supplemental jurisdiction
under subsection (a) over claims by plaintiffs against persons made parties under Rule 14.
. . when exercising supplemental jurisdiction over such claims would be inconsistent with
the jurisdictional requirements of section 1332.
No supplemental jurisdiction over impleading by P, yet NEVER have
problem with 3rd party defendant (b/c in order to be properly impleaded,
claim must arise under original claim against D).
Hypo:
A (IL) >> state claim >> D1 (AL) (impleads) D2 (IL)
o Previously in fed ct b/c diversity juris yet now not complete diversity yet still have
original subj matter b/c supplemental jurisdiction. SO WHENEVER D impleads
someone and already have jurisdiction, then supplemental jurisdiction kicks in, so no
jurisdictional issue/problem.
Kroger v. Owen Equipment & Erection Co., p. 660;
P (IA) >>> D1 (NB) impleads D2 (IA/NB). (state claim). P adds P2 into lawsuit under
Rule 14a. D2 didnt say that from IA. D1 drops out w/ S/J and D2 left.
o Ct declines to apply supplemental jurisdiction: b/c could have brought under Rule 20,
and in that case, would be no supplemental jurisdiction.
o So case dismissed & P goes to state ct. Yet CtApp talks about burden (careless
denials, D2 leading P to believe something false, etc).
No supplemental jurisdiction over claim of plaintiff against 3rd party defendants (
1367(b))
When does this matter?
o 3rd party plaintiff or defendant becomes bankrupt
o can serve interrogatories
o Original plaintiff doesnt need additional summons or 100-mile bulge b/c 3rd party
plaintiff already brought in 3rd party defendant.
o If important, P can take to state ct and sue everyone (state ct has same or more jurisd
than federal ct except for 100-mile bulge).
o IMPORTANT: If P doesnt sue 3rd-party defendant & couldnt b/c no fed jurisd,
then can still sue in state ct, b/c never had opportunity to prove case against 3rdparty defendant, only against 3rd-party plaintiff.
o P can also voluntarily dismiss if desires. D1 can attempt to remove yet probably
cant b/c no complete diversity. Yet D1 can sever their issue in case to go into fed
ct.
CLASS ACTION
Anatomy of Rule 23

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Two stages for class certification:

A case must meet the requirements of 23(a):
23(a)(1): Numerosity
How much is enough and when does it become unmanageable?
23(a)(2): Typicality
person who is representing class is typical for entire group (eg. if
person has median amt at stake as oppose to $5 or $1M)
23(a)(3): Commonality
Do they have enough in common to make it sensible to have class
(look at class as whole)?
23(a)(4): Representative Adequacy
Will judge do good job (good representative of class) (sufficient
experience in general & class action litigation)?
Enough resources to endure litigation? (require capital for litigation)
And in addition, fall into one of the three categories of 23(b)
Nervous about where this would lead. 23b2 is catch-all.

Example: Hotel fire. Negligent yet people have different injuries. Look at liability first and
then sever cases after that (separate). Only deal with issue of liability. Yet should have someone
in median be representative even for liability b/c if on one side of the extremes then might be
bias.
Consequences of Certification
Certifying a class will:
In many cases greatly increase the stakes of the case for the defendant.
b/c danger of becoming bankrupt, potential of huge judgment even if small
chance (more likely to settle) powerful negotiating tool if class certification
Carry collateral procedural consequences:
A 23(b)(3) class requires notice as described in 23(e).
Rule 23c2B: have to give notice to everyone in class (Mullane v.
Hanover: best notice practicable under the circumstances, including
individual notice for all members who can be identified through
reasonable effort.
A judgment in a class action presumptively binds all represented parties
But see Hansberry v. Lee
Conversely, refusal to certify:
May be the end of some class actions
E.g., the small claims class
In others will trigger a series of individual lawsuits.
E.g., Amchem v. Windsor
Because the certification decision has such effects, 23(f) gives appeals courts
discretionary power to hear interlocutory appeals from certification decisions.
Look at practical consequences of a claim (class action) for certification
Hypo:

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Regents with tuition increase for 2,000 out-of-state students & President (in-state) wants to
represent out-of-state students. Issue with typicality (not typical of class), maybe conflicting
interests. Yet would be under 23b2 if in class, b/c injunction.
Seeking reduced tuition next year. Problem b/c then upper students graduating dont benefit
& incoming students benefit w/o any reason (typicality). Adequate representation.
Commonality.
23b3 certification has additional reqments:
o notify everyone in your class (best notice practicable under circumstances: individual
notice to all members through reasonable effort); determine finances.
o Oppy for everyone in class to opt out.
o Rule 23c2B: in a 23b3 class; best notice practicable under the circumstances,
including individual notice to all members identified through reasonable effort
may elect to be excluded.
o Yet with new rules, under Rule 23c2A, the ct may direct appropriate notice to class
for Rule 23b1 and 23b2 class actions.
o Therefore, not as big a deal between getting classified as 23b1/b2 and 23b3 class
actions anymore. Previously, huge financial burdens for 23b3 classes but not for
others b/c require personal notice for all class action members, etc.
o 23b3: can opt out b/c cases substantially different, more at stake, (school
desegregation: dont want to opt out of busing reqment)
o Rule 20: Mosley (some based on racial, gender, etc, discrimination against GM). Yet
what if class action instead? Probably wouldnt have enough commonality to certify
as class.
o Not clear if can opt out of Rule 23b2 class: b/c if demand to treat people alike, then
cant treat opting out person differently if win the case.
o Purpose of notice: smoke out potential untypical person in class & conflicts of
interest & if people agree with purpose of class action
Eg. prisoners and no solitary confinement

Communities for Equity v. Michigan High School Athletic Association, p. 695;

Class representative on behalf of all present and future female students . . . Who
participate. . . or who are deterred from participating. . . . Plaintiffs moves for class
certification.
Desire equal athletic programs for men & women based on Title IX on HS level
If class is all women HS athletes in Michigan and some like shorter schedules, then may
narrow class to those who object to this behavior. However, doesnt matter how do class
action b/c this action is illegal. Also state that adequate representation b/c association &
communities for equity are representing both sides of the table.
If no class certification, can still sue with individual suits (enabling association to make
individual seem just like malcontent outlier)
Rule 23f: preliminary injunction (immediately appealable) HOWEVER this is non-final
order which isnt automatically appealable if appellate court wants to hear the case (at
discretion of appellate court).
Big deal (lot turns on certification) b/c if no certification, case is dismissed, if certification,
might get settlement.
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Certification and Notice: Reciprocal relationship

Notice may be a result of certification--- 23(b)(3) classes must be given 23(c)(2)(B) notice
Other classes may be given 23(c)(2)(A) notice
As judge determines that Constitution requires or as he needs to decide on the
commonality of the class
Judge might think that class needs notice in order to find out if its typical.
Notice may result in decertification or change in the shape of a class
Suppose proposed 23(b)(2) class in mental hospital litigation reveals deep fissures
among class members
One group wants more outpatient resources for most functional inmates
Another wants more in-house care for most profoundly ill patients
Judge may redefine classes (subset of class) b/c limited resources and tradeoff; or not certify as class b/c no commonality.
Heaven v. Trust Co. Bank, p. 702;
23b3 classes special b/c have to tell all peeps about class action
potential compulsory counterclaims; so not best way to deal with issue.
Rule 23(b)(3): Action may be maintained if the court finds that. . . A class action is
superior to other available methods . . . The matters pertinent to the findings
include . . . (D) the difficulties likely to be encountered in the management of a class
action.
Only applicable to 23b3 class action suits.
If addressing only Ps claims, only look a 23a (4 reqments) yet with Ds compulsory claims,
became unmanageable (Rule 23b3D)
If you bind class member to this, then itll suck hardcore b/c then theyll suffer with
compulsory counterclaims. Yet can opt out, but with the compulsory counterclaims, will be
difficult to manage class action.
Cf. Plant v. Blazer
Ballard v. Equifax Check Svc, p. 704;
In similar situation to Heaven v. Trust Co Bank, ct declined supplemental jurisdiction over
compulsory counterclaims under 1367c4: the district courts may decline to exercise
supplemental jurisdiction over a claim under subsection (a) if (4) in exceptional
circumstances, there are other compelling reasons for declining jurisdiction.
o Reasons: (1) chilling effect in enforcing regulations, (2) case will become
unmanageable
o If no jurisdiction, then not compulsory counterclaim (isnt precluded). Rule 13a.
o If bank wants to sue individuals on counterclaims, not precluded b/c dismissed b/c
lacked jurisdiction (so counterclaim not waived).
Hypo: Variation on Communities for Equities
Class certified. After discovery, court grants summary judgment for Michigan: program
doesnt violate Title IX

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Next year a female high school junior sues, claiming that the short schedule of girls
basketball season violates Title IX
States best defense: already heard and bound to previous judgment.
Plaintiffs only out from this defense: inadequate representation (Hansberry)
(if inadequately represented, then denied due process). Similar to collateral attack
yet not really b/c underlying attack is about denial of due process.
Thus, if adequately represented, then bound.
Lets say ct finds female HS junior is adequately represented & judgment for D. Then
what if 3rd plaintiff (also member of class) brings same claim to court (inadequately
represented)? Probably can bring b/c not in first or second lawsuit, yet due to precedent,
have to distinguish facts in order to get judgment for her (how she but not other girl was
inadequately represented).

Hansberry v. Lee, p. 705;

#1: Burke v. Kleiman
o Suit brought by Burkes to enforce racially restrictive covenants
o Covenant requires 95% signature of people in neighborhood to take effect
o Ct found that 95% signatures though only 54% (false finding)
#2: Hansberry v. Lee
o suit to enjoin breach of K; Hansberrys defense: not enough people signed (only
54%), so covenant isnt effective. Yet Lee says its issue preclusion (b/c decided
in first lawsuit & youre member of class).
o Issue preclusion: req that matter be actually litigated (yet this was just stipulated)
o Not claim preclusion: cant preclude claim that doesnt exist at time of action!
This is new violation of covenant.
o Class action: didnt adequately represent Hansberry b/c finding for opposite end
goal. (party wasnt involved so no preclusion: SCt)
Explain why, as a matter of preclusion doctrine, the plaintiffs argument was incorrect.
b/c just needs to be final judgment and okay & arising from same T/O
Hansberry as limiting, Hansberry as empowering
Holding?
It was a denial of due process for state to bind members of alleged prior class action
because they werent adequately represented in that proceeding.
And: collateral attack on class action judgment permittedlimited to issue of
adequate representation.
If had appeared in lawsuit and litigated issue, then must appeal instead of do
collateral attack (Durfee)
Implication: if they had been adequately represented, then. . . .?
Bound: Magna Carta of class actions
Decided in a case in which the constitutional holding was necessary only
because the state court was either stupid or dishonest?
Certification and Adequacy: The Prof. Rubenstein Puzzle
Rule 23 requires certification of a class action.
Part of certification requires a determination that the class will be adequately
represented.
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Suppose a class is certified (e.g., Communities) and goes to judgment against the class.
Thereafter, a member of the class seeks to sue on same claim. When she challenges binding
effect of class judgment, shes met with argument that the court has already decided she was
adequately represented.
Yet never in first lawsuit and didnt get notice if not 23b3 class action.
Even so, still have to prove inadequate representation
Lower chance if certification hearing (b/c cts already decided that adequate
representation) not depositive yet convincing.
What about the next plaintiff?
An infinite series of challengers allowed, each challenging the adequacy of the
original class action?
After a few cases, things settle down b/c dont get new facts & becomes clear
what result will be.
Is this a real problem? Do precedent and litigation finance eventually solve this
problem? Cf. Century Home Components

Hansberry as a risky litigation strategy: alternatives?

Suppose Hansberrys lawyers thought that it was very questionable that the Supreme
Court would strike down the ILs class action ruling as a denial of due process.
Any other way to proceed?
If new facts, then can probably reopen Burke (yet also depends on how receptive
IL ct is to claims now, as oppose to before)
Class Actions and the Constitution: Representation & Notice
Phillips Petro. v. Shutts, p. 710;
Lawsuit about dividends for royalties (based on sale price). P won in lower ct yet D states
that group of Ps not contacted (werent able to opt out).
Also, ~1K from KS yet brought in KS court, out of 28K member group, with some
undelivered parties.
D also argued that couldnt assert jurisdiction over non-KS members of class b/c lacked
personal jurisdiction overe absent parties (unconstitutional).
Absent Ps were like Ds yet
o P and Ds are different b/c depends on circumstances (Mullane & International
Shoe). So its okay in this case b/c depends on circumstances and okay in this
circumstance. Mail notice is sufficient.
If P loses in this case, & then another member of the class brings suit, then not bound if prove
inadeq representation. However, if notice, then should have brought it up then.
Hansberry + Mullane + Phillips = ?
Hansberry: adequate representation binds.
Mullane: adequate notice required to bind
Phillips Petroleum v. Shutts:
Notice + other procedures enough to bind the 23(b)(3)class.
Was notice required, or merely sufficient?
Cts say that KS did good enough job b/c didnt say that everything
was reqd.

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When does it matter?

If Rules Advisory Committee says remove 23c2B (special notice
provision) ad only need 23c2A: For any class certified the
court shall direct appropriate notice to the class. Then question is:
does Phillips hold that notice is sufficient or reqd by Constit?
Phillips is applying Mullane to class actions (what Constit
requires about notice for P classes.)
What implications for b(1) & (b)(2) actions?
May req notice similar to b3 actions. 23c2A might respond to
Phillips
Is Rule 23(c)(2)(A) a response to Phillips?
Is Rule 23(c)(2)(A) required by Phillips?
Hansberry + Mullane + Phillips = 23(c)(2)(A) ??

Defendant classes: rudimentary social group (churches would be sued by priest for not tithing),
yet big problem with who representative is.
Choosing Counsel for the Class (new in 2003)
As to all class actions, the court must find that the class will be represented adequately
Required by 23(a), 23(g)(1)(B)
What beyond that?
Sometimes a statute will tell the court whom to appoint (e.g., Securities Litigation
Reform Act)
If not, 23(g) provides guidelines for selecting class counsel
Class counsel hypo-1
Communities hypo (challenge to h.s. athletics). Proposed counsel a former star female
athlete, studied Title IX in law school, from which she graduated two years ago. Now in
solo practice, Lawyer has put 300 hours into case, investigating factual patterns. Lawyer
has taken one case to trial, explains to court she is prepared to accept reduced fee as way
of getting experience and establishing niche practice for herself.
Any further info needed?
What case did lawyer take to trial (class action, complex)? Resources for legal
fees (costs for notice & discovery: case fact intensive?)?
Lawyer may limit to facial challenge to save money on discovery (Brown
v. BoEd: looked at 14th amendment and equality b/c cheaper)
Class counsel hypo--2
Proposed product liability class action (GE microwave ovens). Class of 100,000; alleged
health hazards. Proposed counsel, in 10-person firm, has handled 1 prior class action, has
trial and other product liability experience both for plaintiff and defendant. Firm (not
lawyer) has handled 1 prior matter for GE.
What further info relevant?
Worry that conflict b/c worked for both P and D. Make sure not going after GE as
client in other context b/c then business conflict (might affect judgment as
lawyer).

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Individual notice: required or satisfied Constit due process?

If reqd then Rule 23 provides inadequate notice to 23b1 and 23b2 class members.
Means that 23b1 and 23b2 classes req notice though not reqd in Rule 23.
Eisen ct states that all members of class must receive individual notice & a chance to opt out of
the class.
Class Actions in Federal Courts
Need complete diversity BUT only look at representatives state for complete diversity.
Yet though can combine amts from different claims, each member of class action must
have over $75K in amt in controversy (All Ps have to suffer more than $75K in harm).
class sues for securities fraud.
Rule 9b: state specific circumstances of fraud (as in Stratford: Staten Island
dentist). Special federal state provides super specific pleadings reqment for
private securities (reform act).
Pleading specificity: just for fed security fraud class actions
PSLRA, Fraud (Rule 9b), General (8a), from most specific to less
class sues in CA courts for securities fraud, alleging violations of CA securities law:
lies in hype surrounding public offering of software stock.
Whats defendants expected first move?
Seek removal to federal ct b/c federal securities law preempts state law (in
class actions filed in state ct and alleging securities fraud in purchase &
sale of securities); once removed, will be dismissed if not w/in narrow
range of permitted claims FEDERAL DEFENSE.
Fed cts distrust state ct, and think they are incapable of interpreting
substantive fed securities law.
Constitutional basis for preempting state securities laws as to purchase &
sale of publicly traded securities: Interstate Commerce Clause
Class Actions and Lawyers Fees
Possibilities if case litigated to judgment: (how class action lawyer will get paid)
Affinity group funding: impact litigation, prepay litigation costs (yet sucks in
Evans v. Jeff)
Fee-shifting statutes
Common fund theory: P makes others contribute to lawyers fees by getting
certain %age from common fund. Only works if you have a fund & $ damages
Hourly compensation, percentage
Most class actions wont end with a judgment--at least not a litigated judgment.
Consent decrees are judgments, but they result from settlements.
So how do fees and settlements interact?
Fee hypothetical
#1. Federal securities law class action goes to judgment; $5M award to class. How
will class lawyers be paid?
Fee provision in securities statute? Yes in fed securities statutes.
Common fund theory

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Lawyers have recovered on behalf of class: are they entitled to recover

part of their fees from the common fund?
Not bothwhich one?
Calculating fees
For common fund, calculate fees by:
Lodestar method: reasonable hours x reasonable fee = fee
Percentage method: suppose this had been contingent fee case
For common fund and no fee-shifting, usu percentage method.
For fee shifting & no common fund, use lodestar method.
Cases suggest that courts are using % as a shorthand for outcome of first calculation f
Fees & Settlement
Most class actions dont go to judgment but settle. How are lawyers fees handled?
Suppose s lawyer has contingent fee agreement with the named plaintiff; does
that cover the class?
In theory, one could require s lawyer to negotiate only on behalf of class,
leaving to another stage (after approval of settlement) the question of lawyers fee
Rejected in Prandini Tea
So, s lawyer negotiating both the class settlement and own fee at same time.
Recall Evans v. Jeff D: combined negotiation of fee and relief to class
Yet problem with lawyers fee in settlement is that conflict of interest (want fee +
representing all these different people); desire monetary compensation over
injunction or maybe what client really wants
Fees and Class Action Settlements
If in settlement, lawyer gets great deal while plaintiffs dont get much, then might seem
as if lawyer was paid off.
Yet contingent fee is different b/c if you get injunction, b/c with contingent fee: direct
rltship btw what you & client collections, but if D bargains separately over fee & hard to
value what class is getting (if injunction), thats difficult.
Hard to value coupons, etc.
A proposed settlement; what then?
In ordinary litigation, parties who reach settlement just draft agreement. How is class
action different?
Court has to approval class action settlement: Rule 23(e)
Separate notice requirement in 23e b/c giant agency problem (possibility
of conflict btw lawyer & client) so absent members have opportunity to
contest settlement in separate hearing.
Fairness hearing:
Only in class action settlements. Notice & hearing for ct to approve
settlement & class members has opportunity to object. Approval of
outside agencies (DoJ)
Settlement of Class Actions v. Settlement Classes

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Settlement class: class action who is going to settle for sure and definitely not going to
go to trial, while settlement of class actions: may settle after potentially going to trial.
Ordinary class actions: certification, select class counsel, some discovery,
motion to dismiss, motion for SJ
Settlement class: how class is defined contributes to settlement (b/c certification
mixed in with settlement); MATTERS BECAUSE: depending on how class is
defined, you can use other potential plaintiffs as leverage to increase the amt you
get and claim preclude other potential plaintiffs.

The Settlement Class: Amchem as an Example

Background: thousands of asbestos lawsuits
Some tried, some settled.
Pending federal suits consolidated in Philadelphia: all individual claims.
No class certification of these claims already:
For this particular case: b/c they are already brought to court they were
just consolidated, not class action.
In general: All claims were people seriously injured who can be
individually financed as well (contingent fees, etc); no particular drive to
consolidate them.
Settlement discussions: global settlement
Pending individual claims: lawsuits already filed & not in class action
(consolidated); their lawyers are attempting to get global settlement
Futures class action: asbestos companies want personal injury settlements to
go away, so willing to pay premium in order to know what costs is and to have all
cases settled.
Leverage: limited amt of funds of future and pending claims so conflicting
interests & same lawyers representing both. Similar to future and present
interests.
Problem with same person representing more than one interest (Mullane)
Lawyers getting paid for future class action:
Probably not going to be common fund theory, so uncertain. Yet didnt do
a lot extra to settle future class action claims, so maybe nothing.
The Settlement Class: Amchem
As result of settlement talks, D and P lawyers decide global settlement for people
exposed to asbestos yet havent brought claim yet
Notice & Fairness hearing: objectors appeared & settlement approved yet appealed.
Revd.
No certification b/c: (1) no case or controversy so cant adjudicate it yet (tho maybe
latent period); (2) intra-class conflicts: commonality of future injuries?; (3) class v.
individual clients (can same lawyer represent this class as well as represent individual
Ps?)
Ct says: predominant reqment stated in Rule 23b3 is not met
Cts cant stretch rules just b/c no legislative scheme & see problem that should be
addressed.
SOLN: split class up (present injuries, exposure only)

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Find lawyer by biddingn

Collateral Attack - When a separate and new lawsuit is filed to challenge some aspect of an
earlier and separate case, it is called a collateral attack on the earlier case. This is different than
an appeal, which is a challenge to some aspect of a decision made in the same case.

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