Professional Documents
Culture Documents
OVERVIEW/CATCH-ALL:
-Summons the start of the process, lets you know youve been selected to participate in
the process. There are geographical jurisdiction questions about who can issue what
summons.
-Complaint comes after summons or can be served with it. It has two functions: to tell the
person what you think he did so he can defend himself and (more recently) to act as a
threshold for what you need to show that you know.
-Two options as a response to the complaint:
-An answer is a passive piece of paper denying the allegation.
-A Rule 12 motion says there is something wrong with the face of the complaint
(wrong place, wrong court, doesnt set out enough facts or the legal justification is
wrong)
-If you survive the motion, you go into discovery, where a plaintiff with a plausible
understanding of his harm develops the facts needed to make the case. This can be done
through depositions, document demand or written interrogatories. Part of the reason they
are pushing up the threshold on pleadings is because the cost of discovery is so high.
-After discovery, you bring a motion of summary judgment, asking the judge for rule for
you because all the necessary facts point to you winning.
-If the judge thinks theres a question of fact and summary judgment is denied, we go to
trial. Judges decide questions of law and questions of fact that are so obviously in their
favor that no reasonable jury could decide the other way.
-Two types of appeals:
-Interlocutory appeals: if a judge makes a ruling that will affect the outcome of
the case, the parties can appeal immediately. You jump up to the appellate court
and get an answer. Some states use this.
-Final order appeal is used in the federal system only at the end of the trial
(except for a collateral order exception where the decision would shade the trial in
a way that would make it impossible to go back like if they deny your attorney-
client privilege.)
Thayer presumption busts the bubble and were back to the BC range.
Morgan presumption shifts the burden of persuasion to the other side.
Federal rules of evidence say without other rules, presumptions are Thayers.
-Where is a debt? In Harris v. Balk, the court said the debt is on the back of the debtor. So
when Harris is up in Maryland, its OK for Epstein, who is owed money by Balk, to take
the debt that Harris owes Balk. (This may not be valid)
-Kokkonen Problem: After a settlement has been reached in a case that had subject-
matter jurisdiction, the court losses jurisdiction to enforce the settlement unless it
specifically retains it in the settlement. (A breach of the settlement is treated like a regular
contract claim).
PLEADING
SUMMARY JUDGMENT:
After discovery, the defendant will ask for summary judgment, saying the plaintiff
doesnt have enough evidence to win later, so why go forward. (Rule 56 is summary
judgment)
-Originally used when damages could be shown by documents: heres what I lost.
-Argument is that now theyre interpreting more broadly and are even doing it
earlier: at the pleading stage. Summary judgment at least comes after discovery.
Test: to get summary judgment, the defendant has to show the absence of any disputed
material fact. (Adickes v. S.H. Kress White school teacher is in a restaurant with her
black students when cop comes in. When she leaves the restaurant, she is arrested and she
says her civil rights were violated). Defense offered affidavits from the store manager, the
chief of police and the arresting officer denying a prearranged scheme)
-Those affidavits did not provide an alternative reason for why the cop was in the
store, so there is still a material question of fact. (if they can prove that, maybe
they will win at directed verdict)
-But clearly youre also making a judgment on the merits of the case, trying to decide
if a reasonable jury could decide the other way.
-Court can consider what the burden of persuasion will be for the jury to find for
the plaintiff when deciding if the case should go forward (why let it go forward if
there is no way it will be decided by a jury by clear and convincing evidence
even if it could have decided either way by a preponderance of evidence.
-Anderson v. Liberty Lobby (Anderson publishes an article saying the
Liberty Lobby was neo-nazis. Anderson said it wasnt intentional or
malicious.): Because the standard is higher for liable cases, the court
granted the summary judgment motion asking for the case to be dismissed
Factors to look at:
-Only looks at evidence that will be admissible at trial: If the plaintiff is relying
only on evidence that wont be admissible at trial, why go forward. (Celotex)
-Celotex Corp. v. Catrett was a mass tort case where the only evidence that
the plaintiffs had been exposed to the defendants product was three
affidavits that wouldnt be admissible at trial. Court granted summary
judgment.
-Note: you dont need the actually evidence: you can use an affidavit of what a
witness will say at trial, even though you will need to use the actual witness at
trial.
-Also note: defendant doesnt have to deny any of the facts to get summary
judgment.
-Facts viewed in light most favorable to the nonmoving party, but only when
there is a genuine dispute to those facts.
(Scott v. Harris car chase video raised no dispute to genuine fact, so
court granted summary judgment for the defense.)
DIRECTED VERDICT:
Rule 50 allows the judge, after the witnesses and evidence have been presented, to enter a
judgment on the law if the facts are sufficiently clear. (50a is before the jury hears it and
50b is after the jurys verdict)
-Note: Galloway v. United States is the 1943 case that tried and failed to say that
directed verdict was a violation of the Seventh Amendment.
-Cant take it away from the jury unless it is unreasonable for the jury to decide one
way.
-Rogers v. Missouri Pacific RR where Laborer was told to burn off weeds near the
track.
-A jury is allowed to look at the evidence and say I dont believe one side. That is not
justification for the judge taking it away from them.
-Reeves v. Sanderson Plumbing (Age discrimination case where the company said
he didnt do his job and he presented an alternative, saying the companys time
clocks were often broken): Case turned on whether they believed the man or the
company, so no directed verdict.
-Note about mixed motive discrimination cases. If plaintiff proves mixed-motive in
discrimination case, he wins. Thats been the case for years in race and sex
discrimination. Last year in Gross v. FBL Financials, Supreme Court said it wasnt the
case for age discrimination, but Congress will likely overrule that.
NOTICE:
Notice is about due process: making sure the parties know about the litigation and have a
fair shot at litigating.
First step is service of process which is governed by Rule 4: see the rules.
What is needed?
-You have to give the best notice reasonably possible. If you know the persons
address, posting in a newspaper is not enough. But you arent required to actually
reach everyone if that is not possible. (Mullane v. Central Hanover Bank)
-Very fact specific:
-Hand delivery is the best, but not required because can be avoided
by defendants.
-By newspaper can be OK if its the only option (Mullane)
-Attaching notice to property is often sufficient, the court said in
Mullane, but in Greene v. Lindsey, that was not enough because
those notices were often removed by children.
-Sending certified mail to the prison was enough in Dusenbery v.
United States.
-But certified mail wasnt the best way in Jones v. Flowers
because they knew the certified mail didnt get to him court said
you should have tried regular mail because for certified mail, you
have to be at home.
-This comes up here and in class actions, when you have to notify everyone in the
class.
Timing for notice:
-Parties have the right to be heard before being deprived of property, but
sometimes it is OK to have a hearing immediately after.
-Its a balancing test of:
-what the person is being deprived of (is it wages sniadach or
the right to sell their house doehr)
-for how long will there be a hearing right after (WT Grant)
-what is the chance of mistake (will it be a jury question whose
property it is Doehr)
-what is the seizing partys interest (shared property, WT Grant, or
someone elses bank account, North Georgia)
-General rule: no prejudgment hearing unless there is a real need and the
plaintiff has a serious interest at stake.
DISCOVERY:
-The limits on discovery are: a party may obtain discovery on any nonprivileged matter
that is relevant to any partys claim or defense. (Rule 26(b)(1))
-There is supposed to be a voluntary exchange of relevant information. After voluntary
disclosure, there is discovery by three other methods:
-Depositions question anybody under oath. Transcripts arent usually
admissible at trial but they are used to protect against perjury and stop deviations
at trial. There are no objections at depositions, so you can ask anything.
-Document demands can be linked with a depostion if you want, but generally,
its the first thing you do: demand relevant documents.
-Written interrogatories cheap way to do it but unhelpful because lawyers
answer the questions.
Exceptions to wide-open discovery:
-Sensitive material: Judge has discretion to deal with sensitive material by
issuing protective orders that say this information cannot get out. In Marrese v.
American Academy of Orthopedic Surgeons, two orthopedic surgeons were
denied membership to an Academy. They sued and in discovery asked for all
correspondence relating to membership applications.
-Neuborne has a theory of phased discovery where you get X depositions
in phase I and then as you more forward, the judge can give you more.
-Publication: Trial court has the discretion to restrict the dissemination of
information received through discovery (similar to Marrese). Seattle Times v.
Rhinehart (Rhinehart, head of a controversial spiritual organization, brought a suit
against the Seattle Times for liable. In discovery, the Times asked for a list of all
the organizations members. Court said they couldnt publish the list and it was
not a first amendment violation because it was obtained through discovery)
-Work Product: Attorney work product is protected and is not discoverable. In
Hickman v. Taylor, party asked for all the other sides info so he could make sure
he didnt miss anything. Hickman v. Taylor argument in every case and its up to
the judges discretion to figure out what is work product:
-Memos are clearly work product
-Work product does not cover information not given by the client to the
attorney.
-Gray area in between about things found out in investigation and
interviewing of witnesses, etc.
-If its in the public record, no discovery for it.
-Privilege: attorneys and clients must be able to predict with some degree of
certainty what will be protected. If it flows directly from the client to the lawyer,
it is absolutely privileged.
-Upjohn v. United States says that all employees are clients if the
corporation is a client. All courts recognize attorney-client privilege as
necessary for public policy under these conditions.
-person claiming privilege is a client or seeks to be
-attorney is a member of the bar and a practicing lawyer
-privileged info was told to the lawyer in confidence
-privilege was not waived.
-Exception is if its information that someone will harm someone in the
future.
PERSONAL JURISDICTION:
Does a long-arm statute apply? (start with statutory authority, not due process clause)
-Typically, they say if cause of action arises out of commission of tortious act in
this state, doing business in this state, insuring of risk in this state, contracting to
supply goods and services in this state, or arising out of breakdown of marriage in
this state, then forum state can assert jurisdiction over non-citizen based on
commission of act in that state
-Some just extend to the limits of the constitution.
-If it includes something that says arises out of the commission of a tort, is
the making of the defective product the tort or is the act of the tort
exploding the tort?
-No precise formula.
-Consider the contacts related to the cause of action:
Isolated or continuous; related or unrelated
-Consider whether the defendant has invoked the benefits
and protections of the law of the forum
-Gray v. American Radiator (Titan Valve makes valves and
sells them to Am. Rad., which sells them all over the
country. Valve blows up in Illinois. Titan Valve doesnt
directly sell to Illinois). Still jurisdiction. This is related and
arguably less than continuous but more than isolated
Quasi in rem
Idea of quasi in rem is that you can seize property in the state (if, say, the state didnt
have a proper long-arm statute) even if it doesnt relate to the claim and litigate up to the
value of that property.
-Most quasi in rem is irrelevant. In Shaffer v. Heitner, Marshall says that you
need minimum contacts for ALL types of jurisdiction. It doesnt affect you much
for in rem proceedings because if you have property in the state, you probably
have minimum contacts. But it gets rid of quasi in rem why let people seize
property that doesnt belong to them, a la Pennoyer, if they can get in personam
jurisdiction instead.
-Stevens says no in rem jurisdiction for stocks for policy reason of not
wanting parties to be subject to forum everywhere they owned stock.
-BUT Shaffer may allow for quasi in rem if the states long-arm statute doesnt
extend far enough?? Highly dubious, I think.
Subject-matter jurisdiction cannot be waived and can be brought up at any point during
the process, even during appeal. Court is under the obligation to self-discipline.
Jurisdiction can come from:
-Diversity of parties
-Federal Question is being litigated
-Supplemental jurisdiction arising from same case or controversy.
Diversity Jurisdiction
Article III, Section 2 gives federal court the power to litigate disputes between two
parties from different states.
-Minimum diversity is allowed under Article III if Congress wants.
(Congress created minimum diversity for interpleader claims and class
actions over $5 million)
-Maximum diversity is what is required under 28USC 1332. So, to get into
federal court on diversity, you need:
-No plaintiff the same as any defendant
-A plausible claim for $75,000, the amount in controversy requirement.
Amount in controversy:
To get into federal court, you also need to satisfy the amount in controversy
requirement of $75,000 (got rid of AIC for federal question after Nixon tapes)
-Just need a good faith allegation that it is above $75,000 (without interest or
costs)
-It gets tested the day it gets filed. If it turns out to be less, the court doesnt lose
jurisdiction (St. Paul Mercury v. Red Cab Co.)
-What can you aggregate?
-A single litigant can aggregate all the claims they have against a
single defendant, even if they arent related.
-But you cant aggregate claims against multiple
defendants.
-Multiple plaintiffs cannot aggregate any of their claims.
-For a class, if the named representative satisfies the amount in
controversy requirement, the rest of the plaintiffs dont have to.
NOTE: Home-state defendants cannot remove on diversity jurisdiction.
-Kokkonen Problem: After a settlement has been reached in a case that had subject-
matter jurisdiction, the court losses jurisdiction to enforce the settlement unless it
specifically retains it in the settlement. (A breach of the settlement is treated like a regular
contract claim).
REMOVAL:
VENUE:
Note: we deal with federal venue rules here, but states have similar rules for bringing
cases inside their states or transferring within their states.
Where can you bring lawsuits?
-28 USC 1391 lays out the three-part test used to determine if venue is proper. A
civil action can be brought in a district:
-Where ANY defendant resides, if they reside in the same state.
-Where a substantial part of the events occurred.
-Lots of leeway: In Bates v. C&S Adjusters, plaintiff brought a suit
against a collection agency for illegal debt collection provisions
because the threatening letters were opened in New York after
being forwarded from the place they mailed the letters in
Pennsylvania (Probably a personal jurisdiction problem, but they
didnt raise it)
-If neither of those are satisfied, where the defendant can be found
-Note: literal reading says that in cases where federal claims are
founded solely on diversity, it is any district where is subject to
personal jurisdiction, but Neuborne says theyre supposed to be the
same thing.
-Improper venue is waived if the defendant doesnt object in his first motion.
-Rule of thumb is that you try to not disturb the plaintiffs choice of venue, but
that doesnt mean never.
Venue transfer:
-Restrictions on venue transfer:
-Can only change venue inside a sovereign (inside a state or inside the
federal system, etc). Use forum non conveniens to dismiss and bring
elsewhere.
-Can only transfer to a venue where it could have originally been brought
(see above)
-In Hoffman v. Blaski, the patent infringement took place in
Illinois, but the plaintiff sued in Texas because he was unsure about
personal jurisdiction in Illinois. Defendant tries to transfer to
Illinois, but the Supreme Court says no bc no personal juris.
-Venue transfer is discretionary and if courts suspect game-playing, they
will not allow the transfer.
-In Ferens v. John Deere, plaintiff files a breach of warranty claim
in Pa, where the tort occurred, but statute of limitations for tort in
Pa is too short. So he files tort claim in Mississippi and asks for the
case to be transferred to Pa, where it is more convenient.
-Two ways to transfer:
-28 USC 1404 is the good-guy transfer. It says for the convenience of
parties and witnesses, in the interest of justice, a district court may transfer
any civil action to any other district or division where it might have been
brought.
-Under 1404, use the law of the original forum.
-28 USC 1406 is cure or waiver of defects. If this is an improper venue
(and the objection is raised by the parties), the district court has the
discretion to either transfer to a different court dismiss.
-Under 1406, the law of the new forum applies.
-It can save you for statute of limitations issues though.
-Note: In a case where statute of limitations is one year in
both states. If you file in month 10 and it takes four months
for a judge to review your case, you satisfy the statute of
limitations in state II.
-But: if state II had a six-month statute of limitations, you
wouldnt be able to transfer there because you have to use
the state laws.
-Forum Non Conveniens
-This is how to transfer across sovereign lines (almost always used for
international transfer, but with transitory physical prescence giving states
jurisdiction over someone, it might be used to transfer to a more
convenient state).
-But it is not really a transfer.
-It can only be done by dismissal and refile of the complaint in the
new forum
-No 1404-type transfer. You never get to take the law of the old
forum with you.
-Plaintiffs choice is given deference and there have to be strong reasons
to change the plaintiffs choice of forum. For example, if the plaintiff is
choosing the forum because it is inconvenient for the defendant. (Gulf Oil
Corp. v. Gilbert)
-Factors to balance when thinking about forum non conveniens:
-Most important: private interest of the litigant
-The plaintiff often chooses a venue for its law.
That should be considered, but it not given
conclusive or even substantial weight. If it were,
we could never use forum non conveniens because
the plaintiff almost always chooses the venue with
the best law. (Piper Aircraft v. Reyno)
-Relative ease of access to proof.
-In Piper, all the evidence and witnesses were in
Scotland, where the plane actually crashed.
-Practical considerations to make trial easy and
inexpensive
-Similar to access to proof, but maybe more of a
consideration of where the parties are located.
-Public interest factors trials are expensive and
requiring communities to litigate issues they have no
interest in is unreasonable. (relatedly, there is a local
interest to having local issues tried at home, to protect local
citizens.)
-Does an alternative forum exist where it could be fairly
litigated? Not going to force them out of court if there is
nowhere else to go (Piper says this)
-All these factors are laid out in both Gulf Oil Corp v. Gilbert and
Piper Aircraft Co. v. Reyno.
CHOICE OF LAW:
PRECLUSION:
A step above stare decisis for saying this cannot be litigated because it has already been
decided. Stare decisis is for questions of law and is changeable if necessary. Preclusion is
for questions of fact.
Claim preclusion overview
-A claim now consists of all the actions the come from the same facts. But facts
can be interpreted many different ways:
-common nucleus of operative facts
-common liability facts (or a cluster of assertions where if you find one
particular fact, then youre issue precluded on the others)
-You may want the idea of common facts to be narrow here (common
liability facts, perhaps) so you dont preclude too many people where
common facts for subject-matter jurisdiction is broader to let people in the
court.
-Restatement (second) of Judgments lists considerations to determining a
single transaction:
-whether the facts are related in time, space, origin or motivation
-whether they form a convenient trial unit
-whether treatment as a unit conforms to the parties expectations.
-Claim precluded plaintiffs
(When you bring a claim, make sure you have all related claims)
-Cant bring another claim arising out of the same common nucleus of
operative facts against the same defendant
-Comes out of Rush v. City of Maple Heights, where Rush won an
action for damage to her bike because of citys negligence in filling
potholes. Then she tried to bring the action for her personal
injuries.
-This is common liability facts: if they had done the second
case, it would have been issue preclusion, so just a
collection proceeding.
-Discretion is highly limited
-In Federated Dept. Stores v. Moitie, two plaintiffs didnt appeal a
decision and tried to get back in the case after it got remanded. SC
said we use claim preclusion because its important, not because it
tastes good.
-Jones v. Morris Plan Bank said even when both parties would
prefer not to bring the hole claim, if you dont bring it, youre
precluded (though this situation could be avoided by better drafting
in the contract that didnt require the whole contract to be sued on)
-Claim precluded defendants
(it seems less justifiable to say you got sued and didnt sue back so youre
precluded. But that happens)
-Have to shoot back if its the same liability facts.
-Just because states dont have compulsory counterclaims doesnt mean
they arent compulsory because of claim preclusion.
-In Mitchell v. Federal Credit bank, the bank sued Mitchell for $9k they
lent him. Mitchell won on his defense that the banks guy ran off with all
$18k of profits for the farm. He couldnt bring the second suit for the extra
$9k.
-OConnor v. Varney (builder sued buyer for payment. Buyer said he
shouldnt have to pay because it was bad product. Had to bring the
counterclaim here or get precluded)
-Reasoning is: we want everyone to have a reasonable
understanding about whats at stake and we dont want trials that
are just collection proceedings. Plus, theres an efficiency
argument.
-Only if the liability facts are going to be the same
-In Kirven Chemical, the defendant farmer in the first case withdrew the
defense that the chemicals were bad and killed his crop. So not precluded
in the second because that claim was never litigated. (see reasonings above
Kriven doesnt change those)
-This might fall under compulsory counterclaims, which are more
broad than claim preclusion
Issue preclusion
Youve had your day in court and its been litigated, so that issue is now done.
Three things you want to check for:
-You want to be sure the issue has already been litigated
-make sure the case wasnt decided on some other issue
-NOT preclusive unless it reached a judgment on the merits
-In Cromwell v. County of Sac, the first complaint was dismissed
for not stating a proper complaint. So we dont preclude him in the
second case.
-ALSO in Cromwell, the first case is about one set of bonds and
the second case is about a second set and the issue was whether
he was a proper owner. The first case cant say anything about the
second.
-Restatement uses actually litigated test so not even a guilty plea in
criminal court is issue preclusive in a civil claim
-You want to be sure that when they decided it, they knew they had to decide it.
-make sure that issue was necessary for the verdict.
-In Rios v. Davis, there is a car accident involving three people and in the
first case, the plaintiff sued the defendant and the jury came back and said,
all three of you were negligent, so no recovery. Third party is allowed to
sue because the jury didnt have to make that finding.
-most importantly, the third party couldnt appeal the verdict.
-You want to make sure it was adjudicated in a place where you can trust the
quality of the decision
-we dont use arbitration decisions in court, for instance but do trust
other judges.
Mutuality used to be required for issue preclusion but not any more
-That was the idea that if you werent part of the first case, you couldnt
use issue preclusion because it couldnt be used against you.
-Only used in litigation against the government now.
-In U.S. v. Mendoza, five Philipinos sued and won judgment that they
were offered U.S. citizenship. Later, 50 more tried to sue saying were in
exactly the same position and the liability fact of whether the government
promised us, should preclude them in our case. Court said no, for
government cases, issue is only preclusive if the party using it was in the
first case.
-makes sense: dont want to lock the government into a decision
forever.
Defensive nonmutual collateral estoppel
Plaintiff loses case one against D1. Cant sue D2 if its on the same issue. (i.e., D2 can
use preclusion to say that issue is already litigated. (Blonder Tongue)
-stops plaintiffs from using the first suit as a dress rehearsal.
-judicial efficiency
-not too controversial because the plaintiffs can include whoever they want in that
first suit (though an issue if no jurisdiction)
-discretion to the district court judge to allow a plaintiff who shows he did not
have a fair opportunity in the first trial, but its a heavy burden. (Blonder-Tongue)
THE RULES:
Rule 4 describes how to tell the other party that they are party of a lawsuit. It is the
plaintiffs responsibility. They can do it one of three ways for federal suits:
-Delivering the summons to the defendant
-Leaving it at the persons house with someone who lives there and is of suitable
age.
-Giving it to an authorized agent to serve on that person (like a marshall)
-State rules differ. You can ALWAYS use the state rule, even for federal court.
-Plaintiff can ask for waiver of service and if they dont get it, the costs of service
can be imposed on the defendant.
Rule 9 says in part that, when alleging fraud or mistake, you must state with
particularity the circumstances surrounding the fraud or mistake though malice, intent
and knowledge can be alleged generally.
Rule 12(b)(6) is failure to state a claim upon which relief can be granted and thats
what all of these cases were filed under.
-There are seven 12(b) motions total, including dismissing for: lack of subject-
matter or personal jurisdiction, improper venue, insufficient service of process,
insufficient process, and failure to join a party under Rule 19 compulsory joinder.
-Personal jurisdiction, venue and insufficient process are waived if not in the first
response
Rule 12(e) asks for a more definite statement of pleading if it is too vague.
Rule 11 says that every pleading and written motion has to be signed by the lawyer and
the party represented. 11(b) says it cannot be for any improper purpose such as
harassment and they have to have evidentiary support. And section (c) lays out the
sanctions.
-Intent is to curb abuse by holding lawyers responsible
-In Surowitz v. Hilton Hotels Corp, a woman who didnt know anything about
securities filed a derivative action on behalf of herself and stockholders. She
signed the document saying it was true and the defendants said she couldnt
possibly have known all this information.
-Supreme Court said it didnt matter that she didnt know all the details.
She had invested in the company and she trusted her nephew who knew
the securities stuff. Intent was to stop trickery.
-A lot of discretion for the judges. Rule 11 isnt the only sanctioning provision.
There is also 28 U.S.C. 1927 recently, fewer Rule 11 and more 1927
sanctions.
-Business Guides was a case where Business Guides accused a company of
copying its directory because of 10 fake entries. It turned out only one was wrong
and the magistrate recommended both be sanctioned.
Creating the lawsuit: Plaintiff joinder (Rule 18) allows the plaintiff to assert claims
against as many parties and claims as he wants. It is what allows the plaintiff to decide
who, where and when to sue.
-The text is purposefully broad to overrule claim pleading rules that said each
claim was pleaded separately.
-Restrictions: Personal jurisdiction, complete diversity (if not federal question),
aggregation and preclusion. (or supplemental jurisdiction)
-Rule 18 is an invitation to bring all of those things and then you have to make
sure you can bring them all.
-Both Rule 22 Interpleader and Rule 23 class actions were a response to the Rule 19
problem of not being able to get everyone in the case. They both are trying to make the
case bigger.
Rule 22 Interpleader: Instead of worrying about being sued twice for the same property
where multiple parties have claims on that property, interpleader allows a plaintiff (or a
defendant exposed to similar liability) to put the property in the court and have all the
claimants fight it out for the property.
-Still requires maximum diversity to get subject-matter jurisdiction if being used
in federal court. BUT you could always use state interpleader.
-OR Congress created statutory interpleader (28 U.S.C. 1335) as a means to
do this with minimum diversity. Jurisdicitonal amount is $500 and there is explicit
nationwide service of process.
-No personal jurisdiction problem because its an in rem proceeding and the
property has to be in the jurisdiction (at least theoretically under the courts
controld)
-Limitations: A defendant cant use a small piece of property to get everyone into
the court you want and say that theyre precluded if they dont litigate over it now.
-State Farm v. Tashire (Greyhound bus collision killing two and injuring
33. Theyre from all over the country. Some plaintiffs filed a $1 million
claim against State Farm. State farm said they had a policy covering up to
$20k per accident. They put the $20k into the court and used interpleader
to force all claimants to fight over that or be precluded later) Court says
interpleader was not intended to serve as bill of peace for multiparty
litigation in mass tort.
-No bright line test: Really must be an in rem proceeding where the fund is
the target of the claimants and it has to be a large chunk of what is
claimed. A party with little interest in the case cannot strip those with
major interest of their right to bring a claim.
Rule 23 Class Action: Another way to get around Rule 19 problem. Were drafting
people into litigation even though there is no compulsory joinder.
-What you need. Rule 23a lays out the four criteria.
-Numerosity there must be so many people that joining all of them is
impractical (smallest class Neuborne saw was 19)
-Commonality class must have the same type of complaint.
-Typicality the named rep must have claims typical of the rest of the
class.
-Adequacy the rep must be able to fairly and adequately represent the
class (must be well-armed)
-Three types of class actions under 23b.
-23(b)(1) is the answer to Rule 19 problem. We want to get the party in so
we dont hurt someone inside or outside. It doesnt get used much because
lawyers dont think about Rule 19 problems like this.
-no opt out
-23(b)(2) looking for injunctive relief to help a whole class its so civil
rights cases didnt have to be litigated individually.
-no opt out
-23(b)(3) efficiency argument what we normally think of for class
actions. Common questions of law or fact that make more sense to litigate
all at one time.
-Personal jurisdiction question: You have to give them a chance to
opt out and court ruled opt out was enough. If they dont opt out,
theyre consenting to in personam jurisdiction.
-Subject matter jurisdiction question: for diversity of citizenship,
you just look at the named plaintiff. Allapatah said that for
jurisdictional amount, only the named representative had to satisfy
it.
-Representation question: you want to make sure that the relationship between
the representative and the class is above bar so there is no strategic behavior.
Rule 24: Intervention: when a third-party defendant wants to get in the case but cant
because the judge denies it.
-Intervention as a Right (24a): Court must permit anyone who is given
unconditional right to intervene by federal statute OR claims a right tot eh
property being litigated and would be situated that disposing of the action my
impair their ability to protect their interest.
-Its a Rule 19 outside party problem: the money will be gone, for
instance, and they wont be able to get anything.
-24a is appealable
-Permissive intervention (24b): is discretionary and is not appealable. It says a
court may allow anyone into the suit who has a claim or defense that shares a
common question of law or fact.
-NEVER triggers supplemental jurisdiction ALWAYS have its own basis:
diversity or fed question.
Rule 14 Impleader: Defending party may bring in a third party (at common law after
you were found liable, then you could bring in the other party). Paradigm impleader case
is the insurance company, but there are plenty of impleaders who are not insurers.
-Supposed to be an indemnity rule, but it is often used as co-defendants (if theres
jurisdiction, you could instead say Rule 19 necessary party and the judge will
almost certainly bring them in)
-Rule 14(a)(1): defending party may serve summons and complaint on a
nonparty who is or may be liable who is or may be liable.
-Since it comes out of common liability facts, you always get
supplemental jurisdiction regardless of diversity or jurisdictional amount.
(but if judge suspects game-playing, he might say no to a Rule 14 then
you try Rule 19)
-BUT the plaintiff cant file a separate claim against the TPD without a
separate basis of jurisdiction no supplemental. (Because were worried
about game-playing by the plaintiff where they sue a party they can get
jurisdiction over knowing that party will implead the real party see
Kroger).
-Exception to the exception: Two courts have ruled that if the
defendant impleads a third-party and then the third-party
counterclaims against the plaintiff, the plaintiff can fire back at the
third-party (no concern about game-playing.
-Classic situation under rule 14: Jeub v. B/G Foods (plaintiff claims that the
restaurant got him sick. The restaurant says, if we did it was because we served
the ham from Swift.) Court says for efficiency purposes and common sense
purposes, lets bring Swift in now.
-NOTE: As a plaintiff, be careful about pleading into a Kroger situation. If you
sue someone and they join another defendant that would break complete diversity,
you cant counterclaim against that party in federal court if you dont have SM
jurisdiction. So if you want them both in the same trial, do it in state court.
-You should be able to bring a second action against them in state court
later, but you risk inconsistent verdicts and some courts are leaning toward
claim preclusion against a party you didnt bring in the first suit (sort of
like a compulsory joinder)