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I.

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

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

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

Final Judgments

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

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

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

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

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

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

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

State court judgments have been held to bar subsequent action within exclusive fed jurisdiction. “If state preclusion law includes this requirement of prior jurisdictional competency. you have to file in fed court.S. but doesn’t agree with the majorities interpretation of the jurisdictional competency requirement. you don’t have to refuse RJ to state judgments. Burger is saying that you do have to look to state law. that doesn’t necessarily imply that the state court judgment has no preclusive effect Where state law is ambiguous. She notes that “claim preclusion generally does not apply where ‘ the plaintiff was unable to rely on a certain theory of the case or to seek a certain remedy because of the limitations on the subject matter jurisdiction of the courts. because if state judgments are going to be given preclusive effect in fed court. This is true even when the claim of the case is within exclusive federal jurisdiction. under this decision. Federal courts must refer the question to the preclusion law of the state in which the judgment was rendered. or do it in fed with supplemental. but where the claims are the same.” (R2ndJ§26(1)(c)). They “reject a judicially created exception to § 1738 that effectively holds as a matter of federal law that a plaintiff can bring state law claims initially in state court only at the cost of forgoing subsequent federal antitrust claims. Here the C Ap should have looked to Il law to see the effect of the state judgment. without looking at the law of that state. Maybe it is that fed ct tried to apply rj. Only if the statute under which the exclusive federal jurisdiction arises directly claims an exception to 28 U.Holding: The court of appeals was wrong when it suggested that federal courts should determine the preclusive effect of state court judgments. Even if the state recognizes the jurisdictional competency requirement. which would suggest that the state judgment has no preclusive effect as to exclusively federal questions. there is no problem. . even if it is an exclusive fed question. There is this concern about how. it would make sense to apply a federal rule granting RJ. in which case it shouldn’t really matter – either do it all in state. I DON’T UNDERSTAND THIS CASE VERY WELL.C. which says that state court judgments are valid in all courts by the rules of that state. (Kremer). He wants the test to be whether the plaintiff has had a “full and fair opportunity” to litigate the issue. might as well do it now. The preclusive effect of state judgments in federal law suits is determined by the full faith and credit statute. another example of this fed/state problem. it doesn’t matter if the plaintiff can’t make the federal claim. as the fed courts have strong interest in making sure their resources are used wisely. Only if state law indicates that a particular claim or issue would be barred is it necessary to determine if an exception to § 1738 should apply. or lose your state claim. When a plaintiff can make the same claim with the same remedy as in federal court. Burger concurs – agrees that preclusion is forbidden if state law clearly would not bar a later federal claim. He says the court will have to do this eventually. They don’t decide the more general question: whether the concerns underlying a particular grant of exclusive jurisdiction justify a finding of an implied partial repeal of § 1738. and o’connor is saying that they can’t do that if the state court recognizes jurisdictional competency requirements. §1738 (the full faith and credit statute). N and Q 1. then you have to go to fed court first to preserve your right there. a state judgment will not have claim preclusive effect on a cause of action within the exclusive jurisdiction of the federal courts.” Usually state court decisions don’t bar exclusively federal questions from being heard in fed court – so unless Illinois does say that. Did posner just miss that? 2. which is generally true. But that is only really true when there are identical claims.

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

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

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

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

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

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

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

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

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

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

Someone urges a presumption against. occurrence. departments are pretty separate. The government may be estopped from relitigating the same question if the two parties are the same. Fraudulent Conveyances When a claim is heretofore cognizable only after another claims has been prosecuted to a conclusion (ie. N and Q 1. It is better to allow thorough development of legal doctrines. the government can consciously refuse to follow judicial decisions holding its conduct illegal except with respect to a litigant who has already litigated. or put to expense by the inclusion of a party against whom the party asserts no claim and who asserts no claim against the party. In particular. but the court shall give relief in that second claim only “in accordance with the relative substantive rights of the parties. a P can claim money and a setting aside of a conveyance fraudulent as to that plaintiff without having first obtained a judgment establishing the claim for money (can claim two remedies. Anyone can be joined as a ∆ if there is a right to relief in respect or arising out of the same transaction. whenever a claim only stands after a threshold claim has come to a conclusion). the second claim can be joined in the action for the first. At same time. Permissive Joinder My recap: Anyone may join as a plaintiff if they are asserting any right to relief (jointly. 4. or series of transactions or occurense asserted against them (jointly. Who do they mean by party here? Rule 18 – Joinder of Claims and Remedies a. This is called ‘nonacquiescence. or third-party claim. b. b. Multi-Party Actions 1. or in the alternative) and if any question of law or fact common to all ∆s will arise in the action. even where the second is dependent on the first.” (ie. before you decide the first). Joinder of Claims -. I guess there is some discussion that Mendoza is too blunt and has messed up issues in state courts where they were thought settled.The government is just different. or in the alternative) in respect of/arising out of the same transaction. may join (either as independent or alternate claims) as many claims (legal. severally. equitable or maritime) as that first party has against an opposing party. corss-claim. rather than categorical ban on. A. when one agency litigates an issue. Some other person argues that the government should be more subject to preclusion because of it size and power. The court may order separate trials or make orders to prevent delay or prejudice. estoppel against state governments. occurrence. Joinder of Parties: Rule 20 FRCP. I think. delayed. maybe it is unfair to bind other depts. so the rights of the second party aren’t trampled by your having joined the claims). severally. seems like privity. Joinder of Claims A party who asserts a claim to relief asw an original claim. Separate Trials A court may make orders to prevent a party from being embarrassed.Rule 18 . Rule 18. because the concerns are for the most part inapplicable to situations where mutuality exists. II. The way it is under Mendoza. counterclaim. Joinder of Remedies. I think.’ 5. FRCP Rule 20 – Permissive Joinder of Parties a. or series of transactions or occurrences and if a question of law or fact common to all these people will arise in the action. also. you only get money in the second question if the first one was decided in such a way as to give rise to the second.

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

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

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

but these terms don’t carry the exact meaning they used to. 3rd Cir. NOW: 19a. has insufficient contacts with the forum to permit personal jurisdiction. 19a2ii – would failure to join Underwood expose SN to ‘substantial risk of incurring double. however. Issue: Whether the district court could give complete relief to the parties before it without prejudice to them or the absent person (Underwood) in a breach of contract action against only one of the two coobligors that might have been liable to Janney. Necessary means that their joinder is compulsory ‘if feasible. 19 is pragmatic and functional.’ If a person is necessary under 19a1 or 19a2. The DC granted it. That they may bear the whole loss. They concluded that Underwood will not be prejudiced and neither Janney nor Shepard Niles will be subjected to duplicative or inconsistent judgments and therefore Underwood is not a necessary party. Stupid. then they are necessary. or venue would be improper). Underwood would destroy diversity jurisdiction. is not double liability. So. Normally 19 rulings are reviewed under an abuse of discretion standard. it is the common result of joint and several liability and should not be equated with prejudice. 19a2i: would this litigation between the current parties impair or impede the absent party’s ability to protect its interest? The lower court found that this case would set persuasive precedent for a case against Underwood. So. If someone who qualifies for (a) can’t be joined (he would destroy diversity. or otherwise inconsistent obligations by reason of the claimed interest? That SN may be found liable for the whole claim. because Underwood isn’t there. then you have to analyze four factors to decide if it is doable. they sued Shepard Niles for breach of contract. but they didn’t join Underwood (Underwood is the parent corporation). is not what is meant by double liability. b – indispensable. Janney Montgomery Scott. US C AP. describes those persons who are needed for just adjudication and provides that they will be joined if feasible.’ This was altered in 1966. they aren’t necessary under 19a2i. a court must first determine if a party should be joined if feasible. SN can implead Underwood if they want. (double liability doesn’t mean covering more than your share of a claim). multiple. If issue or claim preclusion could be invoked that would qualify. a – necessary.  state that an action could not proceed if persons with joint interests were no joined unless they were not ‘indispensable. but here de novo (for weird reasons having to do with CE). (a ∆’s right to contribution or indemnity from an absent non-diverse party . stare decisis alone isn’t enough. Under the new 19. meaning that it found that Underwood was both a necessary party (19a) and an indispensable party under 19b. This. That is what j and s l means. 19a1: can the court grant complete relief to the parties in the action? Yes. SN filed a 12c motion for failure to join an indispensable party. Also. It is premature at this point to decide whether the absent party is in privity for purpose of determining preclusive effect of lawsuit given highly factual nature of privity analysis. 1993 Facts: Janney had a deal with Underwood. Underwood could have sought to intervene. the obligee on the contract. but SN hasn’t shown how that would be true here. Shepard Niles. this often requires a case by case adjudication. That it could be raised by itself is not enough. It wouldn’t probably apply because they aren’t the same person and they don’t have the same interest in the case. v. Holding: Yes. The agreement can be construed (and should be seen in the light most favorable to the non-moving party) to impose joint and several liability (which I think means that complete recovery can be recovered with just one of them – look up the defs). Inc. Inc.

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

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

Here they try to get around it by saying that the third party liability would be based on “implied indemnity” under some active/passive rubric which isn’t viable anymore in Kansas.’   Clark v. but it ‘does not depend upon the existence of a duty on the part of the third-party ∆ toward the plaintiff. etc). Howard. Augenti v. and to harass Cappellini. Associates wants to indemnify themselves saying that Howard. like a defendant would be able to. Deprogrammer sues church for conspiracy with kid (they had deal to pay for litigation and be reimbursed out of proceeds. Impleader (Rule 14) Impleader has its roots in the common law practice where a person whose title to land was challenged could vouch in the grantor of the land who had warranted the title. which no one has questioned. Plaintiff also opposes because the third party ∆ doesn’t owe a duty to the plaintiff. . it is an agency theory of implied indemnity. This basically becomes two cases. This decision is left to the TC’s discretion. Pdiddy Clark v. Issue: Is impleader proper only if the third party defendant is or may be liable to the third party plaintiff for all or part of the plaintiff’s claims against the third party? Holding: Yup. 13 h allows joinder of additional parties through counter claim or cross claim in accordance with Rules 19 and 20. Kid. They hired Howard to do it. and Clark. Lett.C and A. But it should normally be allowed unless it will result in some prejudice to the other parties. Lett. It refers to the right of a ∆ to bring in a new party who may be liable for plaintiff’s claim against it.C. To the contrary.C. But it is much broader now. Associates Commercial Corp.C. Lett and other guy from Clark Co broke Pdiddy Clark’s leg and did damage to property. and L are liable to us. Howard hired Clark co. why is it more limited under 14? Note 6. US Dist Ct. she can bring in a third party defendant. c. page 252 Associates went to get collateral (in form of tractor) from P diddy Clark.’ . and other guy are really responsible. libel. But that is stupid. When Plaintiff may bring in a Third Party: When a counterclaim is brought against the Plaintiff. and to not let him talk to people. and through them. Rule 14 talks about limitations of bringing a third party D. Clark co. under what we now call ‘third party practice. In the process of getting it. Lett and some other guy to go get it. impleader is proper only if the 3rd party ∆ ‘is or may be liable to the third party plaintiff for all or part of the plaintiff’s claim against the third-party plaintiff. then H. 1993. N and Q Note 5.C.b. Reasoning – If we (ACC) are liable to Pdiddy Clark. A. Holy Spirit. Cappellini v. Kansas. sues deprogrammer hired by parents. Admiralty stuff E. This doesn’t have to be derivative. (as third party plaintiff) v. They can only bring third party complaint if it derives from the original complaint.

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

cross claims. If is really bad they can severe or separate the trial (42b).A. it would be divisive and confusing to include them right then? 2.S.” “this means that so long as a current party to the litigation can assert a counterclaim or cross-claim under Rule 13. or diverse citizenship (1332) are claiming (or may claim) to be entitled to such $500 thing and if: . Go over this problem. Why must cross-claims arise out of the same T or O as the original claim. § 1335) Rule 22: (1) A person having a claim against the plaintiff in an action may be joined as a ∆ and required to interplead when their claims are such that the plaintiff is or may be exposed to double or multiple liability. by definition. Interpleader (Rule 22 and 28 U. (2). A permissive counterclaim is. one that doesn’t arise out of the same T or O. 1397. This rule doesn’t in anyway limit joinder of parties under 20. authorizes a claim against a co-party.S. or like interpleader.C.A. It is limited to claims arising out of the same T or O of the original action (or counterclaim’s)’s subject mater. Two or more adverse claimants. filed by anyone having in his custody or possession something more that $500 (I guess interest in the suit?) if: 1. A ∆ exposed to similar liability may obtain such interpleader by way of a cross claim or counterclaim. (??) It is not good enough for an objection to this joinder that the claims of several claimants (or the titles on which their claims depend) aren’t the same (“do not have a common origin or are not identical”) but are adverse to and independent of one another. maybe because when you are against a party. but if you have an unrelated claim against a co-party. but is convenient with rule 18’s allowance of joinder of claims that aren’t related. 2361 28 U. or that the plaintiff avers that the plaintiff is not liable in whole or in party to any or all of the claimants. but permissive counterclaims do not need to? Um. N and Q 1. 13h. The remedy here in no way supersedes or limits the remedy in 28 USC §§ 1335. it can add parties to that claim provided that its claim against the added parties arises from the same T or series thereof within the meaning of 20.   13b is a liberal permissive counterclaim rule. I think A would sue B B would counterclaim for faulty vehicle against A A would implead D B would join/cross-claim C C would implead M A or B would join O as a ∆ O would implead/cross-claim B Not Sure G. It might not make the most convenient trial package. allows for the addition of claims that can result in addition of parties if they can be sued as additional parties to the counterclaim or cross-claim “in accordance with the provisions of 19 and 20. §1335: The district court shall have original jurisdiction of any civil action of interpleader. and when you are litigating a certain subject matter it makes sense to get out all the beefs about it right then.C. 13g. it makes sense to get out all the claims you have against them if you want to. Why are cross-claims permissive – same? 3. allowing a party to bring a counterclaim if it has one against the opposing party.

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

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

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

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

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

including non-legally protected interests. in Donaldson the court refused intervention despite strong practical interest because there was no “protectable interest” o Because Sup Ct cases leave some uncertainty. o Donaldson v. . 12. (c) the desirability or undesirability of concentrating the litigation of the claims in the particular forum. Class Actions Maintainable: an action can be maintained as a class if all of (a) are satisfied and: 1) The prosecution of separate actions by or against individual members of the class would create a risk of (a) inconsistent of varying adjudications with respect to individuals which would establish incompatible standards of conduct for the party opposing the class or (b) adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests or 2) The party opposing the class has acted or refused to act on grounds generally applicable to the class. Rule 24 (FRCP Pamphlet.” What sort of interest is sufficient has been answered in three Sup Ct decisions that aren’t necessarily convergent: o Cascade Natural Gas – took a broad interpretation of the interest required. 280. the class is so numerous that joinder of all members is impracticable. Class Actions: Rule 23 FRCP Rule 23: Class Actions (abridged) a. making appropriate final injunctive relief or declaratory relief with respect to the class as a whole or 3) The court finds that the questions of law or fact common to the members of the class predominated over any questions affecting only individuals and that a class is superior for fairness and efficient adjudication.   It applies “when the applicant claims an interest relating to the property or transaction which is the subject of the action. o Cascade focused on pragmatic or economic factors. United States – way more narrow concept of interest: “what is obviously meant there is a significantly protectable interest. Prerequisites to a Class Action: One or more members of a class may sue or be sued as representative parties only if: 1. was allowed to intervene (even though they shouldn’t have been allowed to sue) – kind of violates Donaldson. 2 there are questions of law or fact in common to the class. The question of whether the intervenors have to satisfy standing is unanswered. The matters pertinent to the finding include. 3 the claims or defenses of the representative parties are typical of the claims or defenses of the class. such as economic concerns. and they didn’t mention it in the opinion. 5th cir “what is required is that the interest be one which the substantive law recognizes as belonging to or being owned by the applicant. b. by statute to sue. The real party in interest of 17a applies to intervenors … as do the rules of standing. several different approaches have emerged at the lower level. and 4 the representative parties will fairly and adequately protect the interests of the class. An Il case has held (7th) that an opinion on something (even religious or political) is not enough to qualify one as an intervener. (a) the interest of members of the class in individually controlling the prosecution or defense of separate actions. (b) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class. P. 1966 Advisory Committee Note. (d) the difficulties likely to be encountered in the management of a class action. o Trbovich v. pp. Untied Mine – a party who was not allowed. 272-274) 14.

The orders may be combined with an order under Rule 16 and may be altered or amended from time to time. and that the action proceed accordingly. E Dismissal or Compromise: A class shall not be dismissed or compromised without the approval of the court. or (B) a class can be divided into subclasses and each of those treated as a class under these rules. d. In reaction. Determination by Order whether class action to be maintained. can. and notice of the dismissal or compromise shall be given to all members of the class in such manner as the court directs. to intervene and present claims or defenses. This suit was brought on behalf of all landowners in the area and alleged that the covenant had been signed by the required number. the court shall direct to the members of the class the best notice practicable under the circumstances. A judgment either way under b3 shall include and specify or describe those to whom the notice provided in c2 was directed and who have not requested exclusion and whom the court finds to be members of the class. 1) As soon as practicable the court shall determine by order whether class should be maintained. 4) When appropriate (A) an action may be brough or maintained as a class on particular issues. ∆s in that case stipulated . The Hs defended on the ground that the covenant never became effective because it wasn’t signed by 95% of the homeowners in the area. These orders are alterable. An appeal does not stay proceedings in the district court unless the district judge or the court of appeals so orders. if they want. as required by its terms. 1. Lee. 3) Judgments under b1 or b2 (either way) shall include and describe those whom the court finds to be members of the class. The notice shall advise each member that (a)the court will exclude the members from the class only if they request it by a certain date. notice. f. for the protection of the members of the class. owners of neighboring homes sued in an IL state court to void the sale to the Hs. The trial court found that only 54% had signed it. offering enormous savings of judicial resources but also providing a significant potential for abuse. The sale was voided. or of the proposed extend ot the judgment.  The modern class action is one of the most versatile and powerful joinder devices. enter an appearance through counsel. Sup Ct. page 281. that notice be given in such a manner as the court may direct to some or all of the members of any step on the action. The problem of Representation Hansberry v. 1940. (2) requiring. Appeals: a court of appeals may in its discretion permit an appeal from an order of a district court granting or denying class action cert under this rule if applicable is made to it within ten days after entry of the order. because it was found that they were bound by a decision that the covenant was valid in an earlier suit. (b) the judgment (either way) will include all members who do not request exclusion.c. Facts: Hs are black they moved into a home in Chicago in an area covered by a racially restrictive covenant. judgment. the court may make appropriate orders: (1) in determining the course of proceedings to get rid of repetition. or of te opportunity of members to signify whether they consider the representation fair and adequate. Orders in Conduct of actions In the conduct of actions to which this rule applies. 2) Under b3. Justice Stone. including individual notice to those who can be found reasonably. (5) dealing with similar procedural matters. actions conducted partially as class actions. and (c) any member who does not request exclusion. however. (3) imposing conditions on the representative parties or intervenors (4) requiring that the pleadings be amended to eliminate therefrom allegations as to representation of absent powersons.

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

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

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

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

page 313 Facts: In case involving tons of plaintiffs (6 million). into separate classes each with its own attorneys. Plaintiffs argue either that. 11. is that ∆s can find a pliant lawyer and get a class with them and make a good deal for the ∆ and then foreclose any future litigation. 10.000 of a truck. but in the 90s people started certifying cases only for the purposes of settlement. Problems of Implementation Eisen v. the law of one state will apply. courts aren’t supposed to go to the merits of the case in determining whether it should be certified. would present intractable m anagement problems for the proposal is that there be no trial. Redish is pissed about this 12. but not that many … 13. first they didn’t certify as a class because it was unmanageable. 1974. But other specifications of the rule – those designed to protect absentees by blocking unwarranted or overbroad class definitions – demand undiluted. – so they broke it down. Carlisle and Jacquelin. involving different . particularly in asbestos cases. Coupon settlements – a recent trend of settlements has been to award class members coupons that can be reclaimed for services or products of the ∆ rather than cash … so this gives large fees to lawyers and maybe screws the people – GM case where lawyers got 9. Reverse auction. But maybe they can go beyond pleadings … 9. some courts have found that differences in individual facts don’t matter as long as the thread of the wrong runs through all alleged claims. page 307??? 7. even heightened attention in the settlement context. Then (eisen ii) they the court authorized a four step notice scheme. 3. the court (sup) agreed that ‘settlement is relevant to a class cert” but that “confronted with a request for settlement only class cert. under choice of law. – here there is a conflict of interest between current and future parties. (that should mean something to me. if tried. a dist court need not einqurie whether the case. Settlement class actions: 23 seems to contemplate an early decision whether a case is suitable for litigation as a class and settlement only after that. maybe. They have proposed a new 23b4 which would permit certification for settlement in 23b3 cases even though the predominance requirements had not been met. or that the laws of all the states fall into a small number of categories.5 million and they all got 1. to deal with choice of law problems: motions to certify nationwide class actions have increasingly been accompanied by an analysis and comparison of the governing state laws.) In Amchem – they wanted a settlement class. 8. Problem with settlement classes. is that consistent with the rule? Sup Ct suggests that there are situations in which this could be used. allowing a jury to apply the different standards by answering different interrogatories. Consolidation. but another has found that resolution of overarching common issues breaks down into unmanageable variety of individual legal and factual issues if they aren’t similar enough. Sup Ct.they keep talking about the “predominance or superiority problem. limited fund mass tort class actions: in some mass tort cases efforts have been made to use the limited fund predicament as grounds for a mandatory class under 23b1b. Some of the same issues that confront mass tort class actions have arisen ins ituations in which district courts use Rule 42 to consolidate large numbers of separate personal injury cases for combined trial.

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

who don’t know they are yet. 260-271) . or their spouses who will suffer loss of consortium or whatever. Rule 23 (FRCP Pamphlet. even tv adds.4. “individualistic tinge of our class action law. It is a mess. Rather than asking the court o make sure that the case is well handled we emphasize the right of the individuals who may be bound to vote with their feet. will not work sometimes if the class has too many permutations or too many potential members. 1966 Advisory Committee Note. notice can be really hard to give in mass tort cases. Lee provides a backstop against misuse of the class action device in that class members who have opted out may try to avoid being bound by the class action on the ground that they were so poorly represented that they were denied due process. who aren’t even married yet.” 15. Hansberry v. pp. But it is rare. 5.

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

It involves essentially the same analysis of meeting and shifting burden as in sum j. what is common nucleus of operative fact – i. Common transactional origin. Party with burden of proof has to present enough evidence that the reasonable jury could find for him. the court ought to grant it. If. Substantial factual overlap without total identity. Gibbs tells us that the power over state claims depends on the relation between the federal and state claims a. Assuming there is substantial federal claim. opponent can move to ask judge if he has done that. personal and pendent jurisdiction together. • . total identify of facts to support both.  so it is similar to summary judgment in that it looks at genuine issues of fact for jury. or iii. Judgment as a Matter of Law (formerly directed verdict. s 1367 (FRCP Pamphlet. 28 U. and Judgment Non Obstante Verdicto (not withstanding the verdict)) Rules: FRCP 50. before the trial.S. If the party with the burden of proof feels that they have proven it to such a degree as the jury could go no other way.C. b. Pp. If they are confusing to the jury. Editor’s notes – now the state and federal claims can state separate causes of action as long as they are factually closely related. then dismiss. The issue of whether such jurisdiction is appropriate is open throughout the trial. they won’t always get rid of the secondary claim if the first one goes … efficiency. 10. 585-601 II. 59-61 JUDGMENT AS A MATTER OF LAW • • • Under Rule 50(a) Motions made at close of opponent’s evidence Judge must find that there is insufficient evidence to go to the jury OR that the evidence is so compelling that only one result could follow. the federal claim is dismissed the state claim should be too. N and Q 6. pp. 9. but judges aren’t so hesitant to grant it because it comes later in the process. If it appears that the state claim is the real body of a case. 889-904?? 2. then it should be dismissed. 624-625) IV. ii. Seventh Amendment Right to Jury Trial 1.ought to be litigated at the same trial. etc. they can make the movement. the court adds that the relationship between the claims should indicate that P would normally be expected to try them all in one judicial proceeding.

” They talk about how “directed verdict” came about as a concept. Galloway v. 2 issues must be considered. He had some bizarre episodes in Europe. to qualify he would have had to have been mentally ill since n later than 1919. the method for determining whether there exists sufficient evidence for a reasonable jury. 100 years of cases and the promulgation of the FRCP show that the Sup Ct has already ruled on this. This was the only difference. they were combined because they are at the core the same. The trial court found that he had made an insufficient showing and ordered a directed verdict. unexplainedly. When the other side rests and has . • A directed verdict does not violate the 7th Amendment.” “A verdict should be directed. They have always had various degrees of judicial control. and then renewed after the verdict comes back – Hoskins points out that there are three times. First of all. of Appeals affirmed and Supreme Court granted review.Page 585 Facts: This is the case with the guy (Galloway).• • • It used to be Directed Verdict (made before case went to jury) and Judgment not withstanding verdict (n. there is in the evidence no room whatever for honest difference of opinion over factual issue in controversy. – “whatever may be the general formulation. The point is to preserve the function of the jury and we do that. By 1930 he was diagnosed as psychotic. who was in WWI. He came back and had even more erratic behaviour. after making due allowance for all reasonably possible inferencesw favoring the party whose case is attacked … whether it is applied under the demurrer to the evidence or on motion for directed verdict. The Dissents Black. United States. Holding: It doesn’t. Douglas. The case goes through other historical accuracy points – basically. C. It does say “preserve. It is subject to control by the judge. only when. but nominal change really.o. the 7th Amendment doesn’t really go to this case.” but we read that to mean preserve the basic function of the jury and that is preserved. 1943 -. 50b – LOOK AT THIS. without weighing the credibility of the witnesses. cannot amount to a departure from ‘the rules of the common law’ which the Amendment requires to be followed. Sup Ct. He gave no evidence of his condition from 1923 to 1930. as a practical matter when you would want to make them. 1. but if it did. The court disposed with that (they said he was wrong). The rule that a case must go to jury unless there was “no evidence” was called the Scintilla Rule.” They think that cases which could be decided a different way are getting directed verdicts because we have changed the standard to “substantial evidence” as apposed to any evidence.) (made after jury verdict was rendered). it wouldn’t be violated. He eventually filed (1934) for military benefits. and Murphy – point to this as a continuation of “the gradual process of judicial erosion which in one hundred fifty years has slowly worn away a major portion of the essential guarantee of the Seventh Amendment. they don’t make it. but they also turned to the constitutional issue of whether Directed Verdict violated the 7th Amendment right to jury trial. 597.” P. A motion for this can be made any time before the case is submitted to the jury. the essential requirement is that mere speculation be not allowed to do duty for probative facts. Issue: The issue raised by Galloway was that the lower courts were wrong and therefore they violated his right to a jury. The right to jury trial as it was in 1791 was not absolute as to the discretion of juries.v.. 1. is the motion consistent with the constitutional dictates concerning the role of the jury and 2. Here the case could only have been decided on speculation and that isn’t enough. if at all. He was denied and filed claim to obtain the benefits. If there is abuse in this respect. Arguments about how proof was presented in 1791 (and similar arguments) also don’t make the amendment stick. the obvious remedy is by correction on appellate review. Also lay out the “scintilla rule. over factual issues and otherwise.

even if you know you won’t win. and after the verdict is rendered (before limitations). the short answer is the contention a has been foreclosed by repeated decisions made here consistently for nearly a century. The standard is that no reasonable jury could find for the non-movant. or file a demurrer (on which basis you can be totally screwed – if the judge decides against you on a demurrer at this point. judges can stay impartial. SEVENTH AMENDMENT RIGHT TO A JURY TRIAL Rules: FRCP 38. the second clause of the 7th Amendment concerns the scope of the limitations that can be placed on performance of the jury’s function – Galloway about this.• • • • • • • • • • presented all their evidence. it was thought that its interpretation was governed by the historical test. juror prejudice.v. 506-581 B. informs citizens of the laws and process. they don’t set precedent (so you can continue to apply facts. has been ruled unconstitutional and then came back kind of. You can’t take facts from jury. At common law all you can do. After it’s adoption. Controls that the court may impose on a jury in a case in which the right is guaranteed (this also comes into play in questions of overturning jury questions). here we overturned jury’s fact finding. so it can be difficult to find analogies Three arguments against jury trial – 1. Pp. 5. 7th Amendment was added to Bill of Rights in order to be a check on judges (they were concerned with impartiality. juror incompetence.” Practice and Rule 50 make it ok to forgo jury trial when there isn’t enough evidence. talks about Constitutionality of judgment as a matter of law and how judgment n. because we have merged courts of law and courts of equity. they bring in common sense. 39 • • • • • • • 2 parts of the 7th Amendment – 1. Historical test is hard to apply. 2. but don’t waste judges time. 3. is move for a new trial to get rid of jury. Advantages to jury trial – 1. This answers the question in Note 3. Good read. You should always raise it. more than precedent. before it goes to jury.o. When there is a Right to Jury Trial. On page 591. Justice Black argues that the majority improperly adopts a “substantial evidence” standard  he is in favor of the scintilla rule (the derogatory term) which says that in order to have directed verdict there has to be NO evidence at all on the other side (which is the historical basis) Rutledge thinks you have to look at what you have in a specific case. 2. looking at the circumstances surrounding trials at common law in 1791. what? 2. Just don’t let it go to jury when there is no evidence. DON’T FORGET. etc). . Page 593. Black dissents here – wants to preserve jury rights. Pages 599-600. keeps law real. you just want it there for the record and for appeal purposes. Rutledge justifies: “if the intention is to claim generally that the Amendment deprives the federal courts of power to direct a verdict for insufficiency of evidence. p 598. delay caused by use of jury. then your case is over) Note 2. IT DOESN’T APPLY TO THE STATES. 4. Otherwise you waive it  malpractice.) 3. 2.

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

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

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

a right to jury is guaranteed for suits at common law.” Scalia dissents. that those analogues were like at law. For rights. Look at remedy..S. • Brennan – All about remedies. 4. is a ∆ entitled to a jury trial as to liability? Holding: Yes. and the remedies. and therefore there was a jury. 1990 -. The test rejected by the Court has been called the ‘historical test. it involved reaching back into early common law causes of action to see if the statutory action has an analog. In actions based on statutes. In a civil suit under the FCWA. Teamsters Local No. Tull requested.’ As described by the Court. that the general rule is that monetary relief is legal. In some case. • Marshall – is in favor of the jury. His reasoning is that he looks at the rights asserted (nature of the cause of action). probs with characterizing back pay as equitable. Look at the cause of action. this emphasis is misplaced. in this case.page 541 An employee who seeks relief in the form of back pay for a Union’s alleged breach of it’s duty of fair representation has a right to a trial by jury.N and Q 2. The court refused and. a ∆ is entitled to a jury trial as to liability. he looks at why a jury trial (here because there are money damages). not right of action. courts often indulge in searches for antiquated causes of action. that dictates whether a statutory action comes within the ambit of the 7th. • Stevens – Basically seems agree with Marshall. But. U. Here they wanted damages.. so he gets a jury trial (for liability. a right to jury trial on liability by necessity involves a right to jury trial as to damages. and for remedies. he uses the “trust” analogy. after a bench trial. It is the remedy sought. there is generally no recognized right to a non-jury trial. • Kennedy – All historical. Terry. 391 v. but just thinks that Marshall’s look for analogies is too exhaustive and complicated. not the cause of action. Sup Ct 1987. Supreme Court. that is like damages back in the day. the Court concluded that although the statutory right sued about had not itself existed at common law. historical analogues did exist. we compare the statutory action to 218th century actions brough in the courts of England prior to the merger of the courts of law and equity. Under the 7th. The test approved is also historically based but relates to remedy. and that statutory damages is usually looked at as legal. awarded 75.000 plus fines. a jury trial. 539 Brennan Facts: Tull was sued by the Government for illegal waste dumping in violation of the Clean Water Act. I don’t know the answer? 4. This was affirmed and then Sup Ct took it. He wants a cursory look at analogies. seeking a common law analog to the statutory cause of action to decide whether a right to jury trial exists. . Look at remedy and cause. He makes an exception for administrative proceedings (no jury). and was denied. 3. not damages) “first. Issue: In a civil suit under the Fed Clean Water Act. Tull v. N and Q 2. Second we examine the remedy sought and determine whether it is legal or equitable in nature.

it looks like) Brennan. They also said that the 7th A didn’t intend to choke the already crowded courts. so we can look at the fact that it is money and money usually equals damages at law – considering monetary damages to be equitable is the exception. White responded by saying that this holding was only true for cases of “public rights” private torts etc were not at all implicated. Also looked to the remedies sought. and so therefore there should be no jury. We have to look at the 18th century cases. Look at fact pattern and try to figure out what is going on. The Right to Jury Trial in Statutorily-Created Administrative proceedings. notes from 10/17 Teamsters Local No. They sued under Unions alleged breach of duty of “fair representation. Atlas – Congress was allowed to assign OSHA claims to administrative agency. Terry. Also historically your ability to get a jury depended lots on what forum you were in . amounts to a balancing test for th e7th A against competing governmental interests. so there. The second being more important. “unusual” .. They imply that this “incompatibility” that White refers to about jury trials and administrative proceedings. but Congress hasn’t announced that that is to be true of breach of duty of fair rep also. Supreme Court. administrative things were unknown at that time. concurrence – Just look at the relief sought. dissent -.Don’t look at remedy. Marshall compared this to various analogous situations which existed in 1791 in England to determine if a jury trial was ok. which is the kind of cause that usually gets a jury trial as under the 7th Amendment. here this is like breach of trust. but don’t try to find an exact match. 1990 Marshall Facts: Terry and some other guys were truck drivers. Also. concurrence – This is a civil suit. This would simplify.• Exceptions for administrative proceedings – p 556. so they should have a jury. look at analogy. Kennedy. (2 step test – look at historical. (clean up doctrine). The historical breakdown was based on relief anyway. NLRB – denied jury trial because it was an administrative proceeding and the back pay was incidental to the equitable relief. and then look at remedy sought. They rejected the argument that at cases in which public rights were being litigated (where Gov’t sues in its sovereign capacity to enforce public rights created by statutes within the power of Congress to enact) the 7th A doesn’t prohibit Congress from assigning factfinding function and initial adjudication to an administrative form with which the jury would be incompatible. They wanted back pay and benefits (I think). they can assign things that would otherwise get a jury to an administrative body to avoid it … this would mean that Congress could utterly destroy the right to a jury trial by always providing for administrative stuff. 391 v. and they were involved in a collective bargaining agreement – they felt that they got shafted in the negotiations. 5. Back pay would normally be restitution under Title VII. Stevens.” Issue: Does an employee who seeks relief in the form of backpay for a union’s alleged breach of its duty of fair representation has a right to trial by jury trial? Holding: Yup. and missed out on some development stuff that went on. and determined that it was a cause at law. N and Q 4. some prof thinks that the problem here is that they relied on decisions from 1856. The Union was not interested in their complaints.

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

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

the Delaval rule – once a verdict is solemnly made and publicly returned it can’t be changed – otherwise people would follow juries around and harass them. private deliberation would become public. and (2) a plaintiff’s right to make several parties codefendants to her claim. people worry about the finality of judgments. The Iowa test – was developed to balance the interests in the Delaval rule with the competing interests of far and accurate verdicts on the other.1. occurrence. 4. 6." and b. everyone doing drugs and drinking – was internal to the verdict and so they couldn’t impeach. Single transaction or occurrence: Their claims for relief must arise from a single "transaction. There is a problem. Rule 20 – Permissive Joinder of Parties A. look at that one too.” Usually that means matters that are personal to the juror – thoughts. Permissive joinder: Joinder under Rule 20. Hansberry v. judges can’t talk to people after they have returned their verdict to see if they understood the instructions. personal reactions. 3. when I get to it. The prob with the test is understanding what is meant by “inhere in the verdict. – some other 600 pages too. frankness and freedom of discussion would be ruined. 5. . is called "permissive" joinder. or series of transactions or occurrences. Common questions: There must be a question of law or fact common to all plaintiffs which will arise in the action.318] 1. page 1182. 7. There is an FR of Evidence 606b rule about how jurors can’t testify about their personal mind/emotions stuff from during the trial when there is an investigation into a verdict. Also. Joinder of plaintiffs: Multiple plaintiffs may voluntarily join together in an action if they satisfy two tests: [317] a. FRCP 20 allows two types of permissive joinder of parties: (1) the right of multiple plaintiffs to join together. do it. emotions. done at the discretion of the plaintiffs. [317 . lee.

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

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

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

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

Shepard Niles. Under the new 19. The Rule 19b determination whether to proceed or dismiss. rule 19 made the possession of a ‘join interest’ the dividing line between permissive and compulsory joinder. The idea was that the court should do complete justice or none at all. . 2. 3rd Cir. (2) X is in fact "indispensable" – his presence is so important that the suit must be dismissed rather than proceed in X’s absence. 1. And applying these rules rigidly. if they cannot be joined the suit will be allowed to proceed without them or must be dismissed. Inc. has insufficient contacts with the forum to permit personal jurisdiction. or united in interest). is not bound by a decree. it cannot act with respect to those before it. 1993 Shepard Niles (D) moved to dismiss for failure to join Underwood. [321]  looks at question of whether certain persons not joined as parties have sufficient interest in the suit that they must be joined and whether. This is where the indispensable party was invented. joinder of necessary parties is excused when it is impossible." the doctrine of supplemental jurisdiction does not apply to overcome any jurisdictional problems. on the ground that Underwood was both necessary and indispensable under 19. There was a fallacy here that “just because a court does not have jurisdiction over an absentee. impractical. describes those persons who are needed for just adjudication and provides that they will be joined if feasible.whole value of the stock. Jefferson Bank] [323] 4. Finally. a person who is not a party. but these terms don’t carry the exact meaning they used to. complete relief can be granted in a suit when only one of the co0obligors has been joined as a defendant. joint. Hazard had three rules. or involves undue complications. ?? American procedural law has embraced this fallacy by categorizing parties as “necessary” and “indispensable” based on the nature of their rights (common. If someone who qualifies for (a) can’t be joined (he would destroy diversity. 3. a – necessary. If a contract imposes joint and several liability on its co-obligors. v. then you have to analyze four factors to decide if it is doable. or venue would be improper).’ This was altered in 1966. its parent and co-obligor to the contract Janney (P) sued on. this often requires a case by case adjudication. unless represented by one who is a party. or if the claim against that would-be defendant does not meet the amount-incontroversy requirement in a diversity case. Jurisdiction: Where a non-party is one who must be "joined if feasible. the joinder may not take place. So if the person who is sought to be joined as a defendant is not diverse with all plaintiffs. 19 is pragmatic and functional. [Haas v. whent on to state that an action could not proceed if persons with joint interests were no joined unless they were not ‘indispensable. and without providing guidelines.       Janney Montgomery Scott. US C AP. all persons who are interested in a controversy are necessary to a suit on that controversy so that a complete disposition could be made. Inc. b – indispensable. NOW: 19a.

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

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

the court has discretion whether to hear the third-party claims relating to it (assuming that these are within the court’s supplemental jurisdiction. US Dist Ct. if these persons may be liable to the TPD for all or part of the TPP’s claim against the TPD. (3) any claim against the original plaintiff. 1993. including: (1) counterclaims against the TPP (either permissive or compulsory). under what we now call ‘third party practice. (4) any counterclaim against the original plaintiff. and thus need no independent federal subject-matter jurisdictional grounds. Supplemental jurisdiction: All of the above kinds of claims. . Associates Commercial Corp. (Example: In a diversity case. page 252 After Clark (P) sued Associates Commercial Corp for damages to her person and property when Associate employee repossessed Clark’s tractor. if the original plaintiff has made a claim against the TPD. fall within the court’s supplemental jurisdiction. Claim by TPD: Once a TPD has been impleaded.’ Clark v. as they will be in the case of an ordinary impleader claim). [370] a. she may make claims of her own. b. and that claim must satisfy the $75. the original plaintiff’s claim against the TPD must be supported by diversity between the plaintiff and the TPD. Kansas. impleader is proper only if the 3rd party defendant is or may be liable to the third party plaintiff for all or part of the plaintiff’s claim against the third party plaintiff.) G. and (5) impleader claims against persons not previously part of the suit. 2. Claims by original plaintiff: The original plaintiff may assert any claims against the TPD arising out of the transaction or occurrence that is the subject-matter of that plaintiff’s claim against the TPP. Jurisdiction: A claim by a plaintiff against the TPD must independently satisfy jurisdictional requirements – supplemental jurisdiction does not apply in this situation. Associates brought a third party complaint seeking indemnity against the employee and the two assistants who had effected the repossession. [369] a. Impleader (Rule 14) It refers to the right of a ∆ to bring in a new party who may be liable for plaintiff’s claim against it. but only if it arises out of the same transaction or occurrence that is the subject of the plaintiff’s claim against the TPP. [371]  E.000 amount in controversy. except permissive counterclaims.1. Under 14. (2) cross-claims against any other TPDs. Defenses: A TPD may also raise against the original plaintiff the same defenses that the original defendant could have raised. Dismissal of main claim: If the main claim is dismissed before or during trial.

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

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

13g. authorizes a claim against a co-party. It is limited to claims arising out of the same T or O of the original action (or counterclaim’s)’s subject mater. cross claims. 3. allows for the addition of claims that can result in addition of parties if they can be sued as additional parties to the counterclaim or cross-claim “in accordance with the provisions of 19 and 20.  is convenient with rule 18’s allowance of joinder of claims that aren’t related. I think A would sue B B would counterclaim for faulty vehicle against A A would implead D B would join/cross-claim C C would implead M A or B would join O as a ∆ O would implead/cross-claim B Not Sure . If is really bad they can severe or separate the trial (42b). 13h.” “this means that so long as a current party to the litigation can assert a counterclaim or cross-claim under Rule 13. Go over this problem. it can add parties to that claim provided that its claim against the added parties arises from the same T or series thereof within the meaning of 20.

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

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

Tashire. So there are two sources. page 260 Fortas State Farm (P) insured three individual involved in a collision involving a Greyhoun bus and attempted to interplead all claimants. This is called rule interpleader. Insurance companies can invoke the federal interpleader before claims against them have been reduced to judgment. . A party to multiparty litigation can only interplead the claimants seeking the funds of that party. Congress overruled this decision by passing a federal interpleader statute passed in 1917. resolved by Rule 22 which provided for interpleader action based on general fed court jurisdiction. one party may not be able to use both.§1335 (statutory interpleader). rule and statutory. They are pretty similar as to scope of remedy. but because of these differences. v. revised in 1936 -. You can use either. 1967.  insurance companies were not able to do this and had to defend multiple suits in different states. State Farm Fire and Casualty Co. A question remained as to whether federal courts retained their traditional equity jurisdiction over interpleader actions. but different in jurisdiction and venue. Sup Ct.

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

" she merely has to have a "claim or defense" that involves a "question of law or fact in common" with the pending action. (Example: There must be diversity between the intervenor and all defendants. United States Nuclear Regulatory Commission The American Mining Congress and Kerr McGee appealed the denial of their motion to intervene in an action brought by the Natural Resources defense Council (P) against the Nuclear Regulatory Commission (D) seeking a declaration that state-granted nuclear power operation licenses are subject to the requirement of filing an environmental impact statement and seeking an injunction of the grant of one such license by the New Mexico Environmental Improvement Agency. [358] 1. Inc. P. Jurisdiction: Like any intervenor of right. o Trbovich v. Permissive intervention is left to the discretion of the court. including non-legally protected interests. Discretion: Where the outsider seeks permissive intervention. 5th cir “what is required is that the interest be one which the substantive law recognizes as belonging to or being owned by the applicant. The trial court’s decision – whichever way it goes – is rarely reversed on appeal. 280.  An Il case has held (7th) that an opinion on something (even religious or political) is not enough to qualify one as an intervener. A party may intervene in an action under 24a2 if he has an interest upon which the disposition of that action will have a significant legal effect.) [358]     Intervention is pretty new It is a device for an outsider who has an interest in a lawsuit to voluntarily join as a party.” What sort of interest is sufficient has been answered in three Sup Ct decisions that aren’t necessarily convergent: o Cascade Natural Gas – took a broad interpretation of the interest required. and they didn’t mention it in the opinion. Note: Definition of Interest in Rule 24a2  It applies “when the applicant claims an interest relating to the property or transaction which is the subject of the action. o Cascade focused on pragmatic or economic factors. United States – way more narrow concept of interest: “what is obviously meant there is a significantly protectable interest. Rule 24 (FRCP Pamphlet. several different approaches have emerged at the lower level. The real party in interest of 17a applies to intervenors … as do the rules of standing. It may often be someone who would have been joined but who wasn’t because there wasn’t personal jurisdiction.C. o Donaldson v. it is up to the trial court’s discretion whether to allow the intervention. 272-274) . 24b recognizes that intervention may be useful to the court even if a party lacks the compelling interest of an intervenor of right. by statute to sue. Untied Mine – a party who was not allowed. was allowed to intervene (even though they shouldn’t have been allowed to sue) – kind of violates Donaldson. 12. v. 1966 Advisory Committee Note.  The question of whether the intervenors have to satisfy standing is unanswered. 2. in Donaldson the court refused intervention despite strong practical interest because there was no “protectable interest” o Because Sup Ct cases leave some uncertainty. Natural Resource Defense Council. pp. a permissive intervenor in a diversity case must independently meet federal subject-matter jurisdictional requirements. Permissive intervention: For a person to seek "permissive intervention. such as economic concerns.

Common questions: There must be "questions of law or fact common to the class. [332] 4. Definition: The class action is a procedure whereby a single person or small group of coparties may represent a larger group. Defendant class: In federal practice. represented by Rule 23(b)(1). "Class Actions" [331]. they must receive notice of the action. Class Actions: Rule 23 FRCP – “Summary” of rules A. (See Table 8-2. 2.) 2. [332] D. [331] B. Therefore. and they must furnish competent legal counsel to fight the suit. all kinds of procedural rules (discussed below) exist to make sure that these absentees receive due process (e. the representatives must show that they can "fairly and adequately protect the interests of the class. Prerequisites: Here are the four prerequisites which must be met before any federal class action is allowed: [331] 1. as well as in states permitting class actions. The more geographically dispersed the claimants are. Fair representation: Finally. only the representatives must satisfy the requirements of personal jurisdiction. [331] 2. and most involve substantially more (potentially tens of thousands). Three categories: Once these prerequisites are met. [332] 3. all of which must meet the four prerequisites listed above." Thus the representatives must not have any conflict of interest with the absent class members. Three categories: As noted. so the fact that many non-named plaintiffs are citizens of the same state as D is irrelevant. Jurisdiction: In the class action. Size: The class must be so large that joinder of all members is impractical.. 3.g." This is seldom a problem. or "class. [334 . Nearly all class actions involve a class of at least 25 members.335] . [330] 1.14. the fewer are needed to satisfy the size requirement. Binding on absentees: The results of a class action are generally binding on the absent members. Only P1 and P2 must meet the requirements of diversity vis-a-vis D.000 non-named class members. a class action will still not be allowed unless the action fits into one of three categories. (Example: P1 and P2 are the named co-plaintiffs who bring a diversity class action against D. Four prerequisites: Four prerequisites (discussed below) must be met before there is any possibility of a class action. Typical claims: The claims or defenses of the representatives must be "typical" of those of the class.) C." of persons sharing a common interest. The vast majority of the time. and 23(b)(3). This requirement of "typicality" is also rarely a problem. [331] 1. There are 2. They are covered in Rules 23(b)(1). the class will be composed of plaintiffs. and notice of any proposed settlement). 23(b)(2). 23(b)(2) and 23(b) (3). Rule 23 generally: The federal procedures for class actions are spelled out in FRCP 23. subject-matter jurisdiction. the class may be composed either of plaintiffs or defendants. there are three categories of class actions. and venue.

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

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

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

o 1: focuses on the potentially harmful consequences for the parties absent use of the class action. 2. the collapse of a building. The Standards for Certification  The FRCP used to divide class actions into “true. page 281. Product liability cases: In mass-tort cases involving product liability. It has two parts – a b1A or “incompatible standards” class.. Lee. and if the federal court would therefore somehow have to apply the differing laws of many states (because of Erie)." or a single "course of conduct" by one defendant. d. the court is most likely to certify the class. Novelty of claim: Where the plaintiffs’ claim is "novel.airplane crash. e. There must be adequate representation of the members of a class action or the judgment is not binding on the parties not adequately represented. Centrality of single issue: Where one issue is truly "central" to the case. certification is more likely.e. and involves plaintiffs from many states. Justice Stone.g. a defective product is sold to thousands of buyers. Lee (P) sought to enjoin a sale of land to Hansberry (D) on the grounds that the sale violated a racially restrictive covenant. who are thereby injured. hybrid. and spurious. Size of typical claim: The larger each individual claim. or the product’s defectiveness. Cases involving a single explosion. 1940.. certification is unlikely. or the explosion of a factory accompanied by the release of toxic substances. State-by-state law variations: If the suit is based on diversity (as it usually will be in a product liability case). the court is less likely to grant class status. Single-accident cases: In mass-tort cases involving a single "mass accident. because the court won’t want to let the future of a whole industry turn on whether one jury likes the claim. Factors for mass-tort cases: Here are some of the factors that courts consider in deciding whether to allow certification in a mass accident or mass product liability case: [346] a.) In a "mass product liability" case. untested (e. or a single toxic dumping by one defendant on one occasion. [344] 3. [345] 4. 1. are examples. Limited funds: Where there are so many thousands of claimants that there’s reason to believe that the defendant(s) will be insolvent before the last claimant has recovered." i. concerned . The problem of Representation Hansberry v. that cigarette companies have fraudulently entrapped young people into addiction to nicotine). b. [342] 2. c. Usually courts don’t allow it to be used even for the limited purpose of deciding core "all or nothing" issues like D’s negligence. most federal courts have held that the federal class action is not suitable. by contrast. Sup Ct. the less likely the court is to allow class status (because each claimant could sue on his own).”  The 1966 amendments to rule 23 got rid of those and replaced them with three kinds that are defined in functional terms. many courts allow class certification.

and a b1B or “impairment of interests” class. The Sup Ct says that typicality is met when ‘ a class representative [is] part of the class and ‘possess[es] the same interest and suffer[s] the same injury’ as the class members. and law. US Dist Ct. There may arise a distinction between the rights of different members.S. making appropriate final injunctive and declaratory relief with respect to the class as a whole. there are questions of law and fact in common to the class (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class. There will be at least 40 inmates in the next year. but right now there is no problem. There must be some evidence or reasonable estimate. Detainees and sentences are both included in this for now. This just has to be general. commonality. page 295 Posner This is the case where all the hemophiliacs got AIDS . o 2: the b2 class action. So. Numerosity. not totally specific. it may change. The focus is not on numbers alone. Con The prerequisites of a class action that (1) the class is so numerous that joinder of all members is pracitcable. the plaintiff’s interest is not antagonistic to potential members. Steele. 23a1 is clearly met for joinder of unknown individuals is certainly impracticable. Here. typicality. The new rule also established four general prerequisites for class certification: numerosity. 2. focusing on the interests of the absent class members. Holding: Yes. but focuses on the claim of the representative party. Adequate Representation There are two factors crucial in this question. but here the rights attach to them alike and so they still satisfy commonality and typicality. Holland v. 1995. and (4) the representative parties will fairly and adequately protect the interests of the class. o 3: this is a catch-all. 23a is good to go. who alleged that Steele (d) denied them counsel in violation of their rights guaranteed under the 6th and 14th A of the U. Common Questions of Law or Fact: Here there are common factual questions.  with the interests of the party opposing the class. page 287. 2 or 3 types. Holland (P) was a member of a class composed of Dade County jail inmates. Obviously you won’t be able to identify all individuals likely to become inmates. The named plaintiff has to have a claim typical of the class. Smaller classes are better when the P is seeking injunctive relief on behalf of future class members. The named plaintiff can bring an “across the board” class action. but on whether joinder is practicable in view of the numerosity. Under 23b2 class cert is proper if 23a are met and “the party opposing the class has acted or failed to act on grounds generally applicable to the class. Typicality: This is similar to 2. Fact patterns don’t have to be identical – just the types of facts or evidence need be typical. and representativeness (23a) Every class must satisfy all four of these prerequisites as well as meeting the criteria for one of the b1. 3. and the lawyers are good. Inc – US 7th circuit. (2). 23a: 1. N Dist of GA. 4. is applicable when injunctive or declaratory relief is sought against a party who has acted or refused to act on grounds generally applicable to the class. (a) the rep must have common interests with the unnamed members and (b) it must appear that the representative will vigorously prosecute the interests of the class through qualified counsel. In the Matter of Rhone-Poulenc Rorer.” Here that is good to go. 1981. not identical. not the class as a whole. applying when questions of law or fact common to the class predominate.

1974. Sup Ct. Problems of Implementation Eisen v. 23c2 requires that in any class action. and there would be too much pressure to settle … 3. individual notice of the pendency of such action must be given to all class members who can be identified through reasonable efforts. and state laws were different. etc. . page 313 After the remand of this antitrust class action. the federal district court permitted Eisen (P) to proceed (21) with notice only to certain members of his class and (2) closts of notice to be assumed by the ∆s. and the cost of such notice must be borne by the prospective class representative (ie plaintiff).I think they basically just said that they couldn’t certify the class because there were too many different issues and time periods. Carlisle and Jacquelin.