I. SMJ – Still need to satisfy SMJ with any type of joinder. a. §1367 Supplemental Jurisdiction – add claims that don’t have independent SMJ when theyarise out of same T/O as original claim (that did have the SMJ). Claimant may aggregate all claims to satisfy amount in controversy req. *Can’t use this if it would destroy diversity SMJ. b. Ancillary Jurisdiction – if SMJ on diversity, can bring in non-diverse 3rd party. The point is that the 3rdparty claim is so related to & necessary to fair conclusion of the trial, so must be brought in together. The additional claim though must be “ancillary & dependant,” rather than “new & independent.” i. Note: Mostly for Df. Pl chose which court to sue in, Df forced. Also, not really given to Pls b/c we want to deter ppl from suing a diverse party to get SMJ, then just impleading a non-diverse 3rd party. (See Kroger) c. Pendant jurisdiction – If there’s already SMJ and suit in fed court, the fed court may hear state claims that are closely related to the original claim. If on diversity SMJ, must still have complete diversity but added claims don’t have to independently meet amount of controversy. II. PJ and Venue – must always be proper

III. Joinder of Claims (Rule 18)- Party asserting a claim, counterclaim, Crossclaim, or 3rd party claim may join as many claims as it has against an opposing party (permits joinder of claims, doesn’t compel it). a. Other rules may be more restrictive (like Rule 13). You have to abide by the most restrictive. IV. Counterclaims and Crossclaims (Rule 13) - Authorizes a Df to assert claims against a party who has claimed against him (counterclaim), or against another Df (crossclaim). a. Compulsory Counterclaim [13(a)] - If a claim arises out of the same T/O, you must “use it or lose it.” i. Don’t need assert the claim if it’s already in another action. ii.Get SMJ using 1367 suppl. jurisdiction; PJ & venue must still be proper. iii.Underlying policy concerns: efficiency & economy - If all same T/O, get everything resolved in one action. Enforce this by not letting the available counterclaim be brought at a later time. b. Permissive Counterclaim [13(b)] - You may bring them and raise claims that don’t arise out of the same T/O. Needs independent SMJ; can’t use 1367 b/c doesn’t arise from same T/O. Page 1

c. Crossclaim [13(g)] - allows a party to assert a claim against a co-party, but only if the claim arises from the same T/O (at court’s discretion). (May use ancillary jurisdiction to get the SMJ needed) i. No compulsory cross-claim. ii.Must ask for relief, otherwise, it’s just a defense. iii.If one cross-claim asserted is same T/O, party can go ahead and assert any other cross-claims that it has. Theory is, if we have to deal with the crossclaim, then it’s ok to go ahead with the others. V. Plant v. Blazer Financial Services a. Facts: Suit based on a federal claim (truth-in-lending act). Df’s counterclaim of money owed. Issue of whether counterclaim was compulsory or permissive. b. Rule 13 permits Df to bring either a compulsory or permissive counterclaim. The diff matters here b/c counterclaim needs independent SMJ, and we’re in fed court via fed ques (not diversity). Rule 13(a) says it’s compulsory if same T/O (and supp juris. also extends to this via 1367). If permissive, then no independent SMJ, and no suppl. Court gives us 4 tests on how to determine if same T/O: i. Are the issues of fact and law raised by the claim and counterclaim largely the same? ii.Would res judicata bar a subsequent suit on Df claim absent the compulsory counterclaim rule? iii.Will substantially the same evidence support or refute Pl’s claim as well as Df’s counterclaim? iv.Is there any logical relation between the claim and counterclaim? 1. Logical means - arising from the same "aggregate of operative facts" in that the same operative facts serve as basis of both claims or the aggregate core of facts upon which the claim rests activates additional legal rights, otherwise dormant, in the defendant. 2. Court concludes it meets this test, so its compulsory (court’s discretion) c. Policy Concerns: Freedman says ruling as compulsory is wrong for policy reasons i. We don’t want to deter ppl from suing based on truth in lending act b/c they’re afraid their loan balance would offset their damages. ii.We don’t want to clog up fed courts with non-fed issues.

I. Who must be a plaintiff: Rule 17 a. Real Party in Interest - The real party in interest requirement insists that the party who sues actually possesses the substantive right (by substantive law) being asserted and has a legal right to enforce the claim. Real party in interest must sue under own name. However certain people have the right to sue in their own name w/o joining the real party in interest (like a trustee or beneficiary).

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b. Capacity to Sue or be Sued - Capacity to sue or be sued refers to an individual's ability to represent her interests in a lawsuit without the assistance of another. Two categories: i. Incapacity of a minor or incompetent person - as a matter of law, there are certain classes of people that lack the capacity to sue or be sued and if this happens, then court will assign a guardian. ii.Incapacity due to organizational status or legal relationship. When an organization lacks the capacity to sue or be sued. If rule comes from federal law, then an unincorporated organization can be sued. II.

I. Rule 14. - provides that a Df can bring in as a 3rd party Df one claimed by the Df to be liable to him for all or part of the Pl’s claim against the Df (and it necessarily must arise out of the same transaction or occurrence). a. The rule is not mandatory - Df may refrain from impleader and assert his claim instead in an independent action. b. Need independent basis for jurisdiction. c. In order to satisfy 14(a), any liability of a 3rd party Df must necessarily be secondary or derivative to the liability of the original defendant. You can’t implead a 3rd party just b/c he would also be liable to Pl. i. Watergate Land Condominium Unit Owner's Association v. Wiss, Janey, Elster Associates 1. Facts: Pl hired 2 companies to do some repair in condos. Df, hired to draw specifications, and 3rdpart to do waterproofing. Pl sues Df but not the waterproofers. Df tries to invoke Rule 14 to implead them. 2. Analysis: Df can’t implead b/c 3rdparty would not be liable to Dfs if Df is ultimately liable to Pl. 3rd party only liable to Pl, and Pl chose not to sue them. (If Df had hired the waterproofers, then they could implead them.) 3. Policy - Pl master of claim – can’t force them to sue someone they didn’t chose to. So 3rd party liable only to Df. Can’t add on a Df that’s liable to Pl if Pl doesn’t want it. a. Better for Pl to sue all possible Dfs and let them battle it out. Pl didn’t do that here, b/c possibly no basis for liability, and they can’t under Rule 11 if there are no merits (sanctions harassing). Maybe no jurisdiction. rd d. Liability of 3 party Df – to implead only show that 3rd party may be liable. Rule 14 only is a procedural mechanism to get them in, but it doesn’t create liability. e. You can go on and on – a 3rd party Df may also use this rule to implead another 3rd part Df f. Pl using impleader: i. If there’s a claim against Pl, she may bring in a 3rd party if this rule would allow a Df to do so.

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ii.Pl can assert a claim against any 3rd party Df arising out of same transaction, etc. of the Pl’s claim against the 3rd party Pl (original Df). iii.A claim by an original Pl against a non-diverse third party defendant is not within the court's ancillary jurisdiction. iv.Kroger v. Omaha Public Power District 1. Fed court diversity SMJ. Df impleads Owen as 3rdparty Df. Pl then asserts claim on 3rd party Df too. Df Omaha found not liable. Pl (IA) and Owen (incorporated in NE) from diff states, so diversity ok for SMJ. But Owen challenges SMJ – turns out main office is in IA, destroying diversity. a. Owen’s answer didn’t provide this info. Info was true, but not forthcoming (affirmed they were incorp. In NE, but denied everything else.) Pretty misleading and deceptive. *apparently this didn’t matter to court. 2. Court says Pl could not have brought this suit against Owen in Fed court by itself b/c no diversity, so can’t do it now. It would be ok through ancillary jurisdiction, but since Df now out of the suit, there’s no more ancillary jurisdiction. It’s only btwn Pl and 3rd party Df (a new an independent claim). a. If courts would allow this then Pls will sue a diverse party then wait for them to implead a non-diverse party so that they can be in fed court. v.It is not unconstitutional for congress to change requirement of complete diversity. 1. Strawbridge v Curtis - the case which instituted the complete diversity requirement, which is an interpretation of the statute only, not constitution, so congress could make a statute otherwise based on minimal diversity 2. So Congress could have said that once there is a good diversity lawsuit, then there is also jurisdiction over Pl's claim over 3rd party, but congress didn’t. In 1367b, they specifically wrote that claims by Pl against persons made parties under Rule 14 (3rd party), are no good if inconsistent with requirements of diversity. a. B/c we are talking about substantially a different dispute, and one that has no business in being in fed court anyway (only here in first place on diversity)

I. Compulsory Joinder [Rule 19] : When an absentee is a necessary party, they must be joined if feasible, for lawsuit to continue. If absentee doesn’t want to join the suit, he will be brought in as a Df (an absentee claimant may be made an involuntary Pl). When it’s not feasible to join a necessary party, and that party is indispensable, then the claim should be dismissed (if court, at its discretion, decides not indispensable, then suit will proceed). Page 4

a. Joining Plaintiffs – normally it’s voluntary, but could possibly be forced using Rule 19 (rare though). Courts take a generous view of joinder of Pls, since Pl is the master of the suit. b. Necessary (Required) Parties One is a necessary party if: i. If in his absence complete relief cannot be accorded among those already parties 1. Whether the absence of a person makes likely further lawsuits among those already parties, or if meaningful relief can be granted without the absentee ii.He claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may impair or impede his ability to protect that interest 1. What is necessary is that there may be such a detriment to the absentee that he needs to be entitled the opportunity to influence the outcome 2. Also when disposition of the action in his absence may leave an existing party subject to the risk of double liability or inconsistent judgments iii.Excuses an involuntarily joined parties from the case if he objects to venue and his joinder would render the venue of the action improper c. When is joinder of a necessary party feasible? - Person can only be joined when there is PJ and SMJ i. Difficulties may arise when trying to serve process beyond borders of the state. 1. Rule 19 authorizes service of process up to a distance of 100 miles from fed courthouse d. When it’s not feasible to join a necessary party, the claim will be dismissed if that party is indispensable. When are persons who cannot be joined indispensable? i. Whether in equity and good conscience the action should proceed among the parties before it or should be dismissed. 19(b) sets out 4 factors courts should weigh: 1. To what extent a judgment rendered in the person's absence might be prejudicial to him or those already parties. 2. The extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided 3. Whether a judgment rendered in the person's absence will be adequate 4. Whether the Pl will have an adequate remedy if the action is dismissed for nonjoinder ii.Circumstances where court may still decide to preserve the suit: 1. If already fully litigated - Unfairness of forcing Pls to start from scratch 2. Where Df would be forced to pay the judgment twice II. Permissive Joinder of Parties – (persons who may join or may be joined) authorizes permissive joinder of claims by multiple Ps or against multiple Ds. At court’s discretion. Page 5

a. Rule 20. - Rule permits the assertion of "any right to relief" held "jointly, severally or in the alternative," so long as claims joined to bring multiple parties into the lawsuit are: i. arising out of the same transaction or occurrence, -ANDii.Have in common a question of law or fact b. Object of Rule 20: To promote trial convenience and expedite the final determination of disputes, thereby preventing multiple lawsuits. c. Limitations: Rule 20 operates only on pleading level - doesn’t guarantee that parties will be tried at the same time, or that it will be tried in federal court. Still must satisfy SMJ, PJ and venue. d. Akely et al. v. Kinnicutt et al. i. Permissive joinder of parties (193 investors) against Df on a fraud scheme. Df says can’t join b/c each action arises out of a separate transaction (fraud on each individual Pl at diff times). Pl says it’s the same fraud, and same series of transactions. ii.Court looks at public policy – more efficient to try all claims together (balancing with dangers of prejudice – Ex: only a few of Pls might have actually been defrauded, etc.). Concludes that an overwhelming amount of time will go to the same issues of fact. 1. Since arose out of the same series of transactions, and one scheme to defraud the public, then ok to join these parties. 2. Constitutionality - Doesn’t deny Df with right to a jury trial - as long as jury trial is preserved, the details to the method used is largely legislative discretion. iii.Why do Pls want join all claims together? 1. Efficiency 2. more leverage to force a settlement (more publicity, more persuasive, more proof) III. Rule 21. Misjoinder and Non-Joinder of Parties - Misjoinder of parties is not a ground for dismissing an action. On motion or on its own, the court may at any time, on just terms, add or drop a party. The court may also sever any claim against a party.

I. Interpleader – When a piece of property or monetary fund (“stake”) is claimed by 2 or more people, the holder of the property (“stakeholder”) can avoid multiple litigation and inconsistent judgments by forcing everyone who has a claim to fight it out in the same suit. One final judgment which all claimants are privy to, so that judgment is binding. a. The stakeholder may be either disinterested (claiming no interest in the stake and getting excused from further involvement in the case), -or- interested (retaining a claim in the stake and continuing to be involved in the action through its resolution). b. Stakeholder deposits whatever is in dispute with the court the stake. He may seek interlocutory relief with respect to the fund during the federal interpleader action. c. Doesn’t matter if claims lack a common origin; only necessary that they are all claiming same property. II. Under the Interpleader Act, you can bring the action under interpleader statute §1335, -oryou can use the authority of Rule 22. Page 6


Statutory (established by Interpleader Act) You get to Fed court by invoking the statute (Fed courts have original jurisdiction for interpleader).

Rule 22 If you’re in Fed court, then you can invoke Rule 22. First you need to be in Fed court under an independent basis for SMJ [either it’s a federal question, or you have diversity (complete diversity and $75k+ in controversy)]. Then you can invoke Rule 22. Need personal jurisdiction; service under Rule 4 (same as always)


If you bring action under interpleader statute, then you have SMJ under that. Requirements are 2 or more adverse claimants (min diversity) and $500 or more in controversy (§1335) §2361 permits nationwide service of process (this eliminates the PJ problem).

PJ; service of process Venue

§1397 - expands venue provisions to permit venue where any claimant resides

Residence of stakeholder or all claimants, or place where claim arose Only basis is provision in §2283 for stay "where necessary in aid of … jurisdiction"

Injunctio Statutory authority for injunctions ns (§2361)

III. Difficulties arise when multiple claims are brought against one or more parties, and one party attempts to use interpleader to force the dispute to a particular forum. a. State Farm Fire & Casualty Co. v. Tashire i. Facts: Bus collides with truck, 2 ppl die, 31 injured. 4 of the injured sue Greyhound, bus driver, truck driver & owner of truck (who was a passenger) for $1mm+ (all Dfs from OR). Before this goes to trial, State Farm, who insured the truck, brought action of impleader (via §1335) in OR district court against all dead and injured parties. State Farm says truck only insured up to $20k (which they put in escrow) and want for all possible Pls to figure it out (b/c litigations costs for every possible action would be a lot more and State Farm has to pay for this, so they want all claims consolidated). Tashire & others moved to dismiss the interpleader. ii.Rule: Interpleader makes sense in a situation where the stake ($20K) can be claimed by multiple parties, and we would want one action to determine all of this (so that 1st claimant doesn’t get everything & subsequent get nothing). iii.The problem here is due process. 1. Insurance company only liable for $20k, that’s it, so they are not really an interested party in the entire litigation. We cannot take away the substantial rights of the interested parties (the Pls), such as the right to choose a forum, with proper SMJ, PJ and venue. Bus accident in CA, litigants from CA, so why should they be forced to go to OR. 2. Basically court is saying that interpleader can’t be used by a Df in State Farm’s position to localize litigation in a single court simply b/c it might be cheaper to do so. Can’t take away Pl’s rights. However, once Pl’s get judgment, then State Farm can use interpleader. IV. 28 USC § 1407. Multidistrict Litigation - When different actions in different districts involve common questions of fact, they can be consolidated to any of the districts. At discretion of Page 7

court – court decides based on convenience of parties and witnesses, and whether it will promote justice and efficiency.

I. Intervention - allows nonparties to join ongoing litigation, either as a matter of right or at the discretion of the court, without the permission of the original litigants. The basic rationale for intervention is that a judgment in a particular case may affect the rights of nonparties, who ideally should have the right to be heard. a. Original parties ( and maybe judge as well) don’t really like it i. Complicates and weakens litigation strategy ii.Additional parties may make settlement more difficult iii.May turn a lawsuit into a "town meeting" where everyone who may have an interest in the outcome becomes a party. Rule 24 sets limits. II. Rule 24 - divided into 2 parts. a. 24(a) Intervention of right – if you meet these requirements, you must be allowed to join the lawsuit i. The intervention must be timely – There’s no actual deadline, but a late intervention may not be justified (the point is to affect the outcome). When timeliness is an issue, court asks: 1. Whether the court and those already parties will suffer from a late intervention 2. Whether the applicant can be faulted for applying as late as he did ii.Intervener must have an interest in the property or transaction that is the subject of the suit, and that interest must be in some strong way at risk 1. No longer necessary for applicant to prove that the lawsuit is capable of binding him in a formal sense (like he would be barred by res judicata). Rule 24(a)(2) contemplates merely "practical" impairment iii.When above requirements are met, intervention can still be denied if there’s adequate representation (b/c not necessary to get involved). 1. There’s adequate representation if applicant’s interest in the outcome is no greater than an existing party, and that existing party is not incompetent, or opposing or hostile to the applicant. b. 24(b) Permissive intervention - Others may also intervene, but at judge’s discretion i. Court may permit if the claim/defense has common question of law or fact of main claim. ii.At court’s discretion- will permit if benefits outweigh the costs of adding the intervener 1. Benefits – avoiding an additional lawsuit 2. Costs of adding the intervener – whether the intervention will unduly delay or prejudice the adjudication of the original parties’ rights. iii.Purpose: advance the interest of the applicant & the court in more costefficient litigation. iv.Denying a motion to intervene, judge can say you can file a Amicus Brief III. Atlantis Development Corp., v. U.S. a. Facts: Atlantis says they own a piece of property (by discovery). When they try to get ownership rights, U.S. govt says no it’s out of U.S. jurisdiction. Then Acme is there, and U.S. sues Acme for trespassing, saying it govt property. Atlantis wants to intervene alleging that it’s not U.S. jurisdiction, and they are the rightful owner. b. Using Rule 24(a), court must permit Atlantis’ intervention Page 8



IV. Mass. a.



i. No issue of timeliness ii.Atlantis claims a great interest in the outcome of this case. The effect doesn’t have to be binding in a formal sense; but in a practical sense it would be b/c whoever wins the suit, U.S. or Acme, Atlantis loses title to the property and never had an opportunity to defend that interest (can’t be bound if not privy). Efficiency – we don’t want another lawsuit for same issue. iii.Atlantis’ interests not adequately protected – all parties want same property. Intervention & SMJ: i. To come in as Pl – need independent basis for SMJ; cross-claim U.S. for title, sue Df for trespass ii.To come in as Df – can use 1367; answer complaint denying U.S. has title; cross-claim co-Df for trespass. Joinder of Parties: Under Rule 19(a)(2) court could have joined Atlantis on its own motion, but maybe then we think court is overstepping its boundaries. Usually when judge sees someone that should be a party, likelihood is either that Df’s will get a joinder (unlikely in Atlantis b/c all have same interest), or judge’s suggestion triggers a motion to intervene by the 3rd party. Ass'n of Afro-American Police, Inc. v. Boston Police Dept Facts: Original claim is for race discrimination in employment. There’s a consent decree with goals of getting more black officers promoted. White officers want to intervene, b/c it would limit their chances of being promoted now (depriving them of right b/c of seniority). Applying Rule 24(a) – they meet the requirements, but court still denies intervention based on merits. i. As a matter of law they have no right to intervene – they have no claim here. Court said it was only a hope of being promoted, not a certainty. The consent decree was designed to remove all vestiges of discrimination from the process of promoting police officers. It does not affect the seniority rights of officers who hope to be promoted in the future. “Merits”: Didn’t look at merits in Atlantis, but these 2 cases still consistent i. Judge in Atlantis: It is conceivable that there will be some instances in which the total lack of merit is so evident from the face of the moving papers that denial of the right of intervention rests upon a complete lack of a substantial claim 1. In Atlantis, merits based on the facts, and so the parties should be entitled to dispute ii.No violation of due process b/c no merits as a matter of law 1. Decision of Mass court to deny intervention on basis on complete lack of substantial claim, b/c the issue of the substantial claim was based on a matter of law 2. Nothing wrong with determining that although reqs of rule satisfied, but still deny b/c of equity, etc. Should makes sense, is just, is equitable, lead to sound admin and results in addition to Rule 24a

I. Class Actions - permits one or more parties to "sue or be sued as representative parties on behalf" of all those similarly situated. If many individuals find themselves in the same situation, advantages may flow from aggregating many lawsuits into one.

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II. Rule 23 - To establish a class action case, the person seeking to represent the class must show that the following requirements are met (certification): a. Numerosity – The class is so numerous that joinder of all members is impractical. b. Commonality - There are questions of law or fact common to the class. c. Typicality - the class rep's claims or defenses are typical to those of the class d. Adequacy of representation (most important) - the class rep "will fairly and adequately protect the interests of the class” i. Class rep must have some stake in the litigation ii.Rep's relation to lawyer must be straightforward (can't be related, etc) iii.Lawyer should have no conflicts that would cloud the litigation iv.Lawyer has to be sufficiently skillful and equipped with sufficient support and resources to handle the case. e. Maintainability – (after first 4 reqs are met, then look here) Additionally, to maintain a class action, any one of these 3 elements must be present: i. Where having separate lawsuits poses either of the following risks: 1. "inconsistent or varying adjudications" if not consolidated into a class action -OR2. Some adjudications precluding others if not consolidated ii.The party opposing the class through action or inaction has treated it as though it were a class iii.If the court finds that “common questions of law or fact predominate" over the individual claims or defenses made by the class member -AND- "a class action is superior to other methods"for fair and efficient adjudication. To determine this, court should look at: 1. Class members’ interest in having individual actions 2. Any other actions for same controversy by or against class member, already existing 3. If you would want to concentrate the litigation in the particular forum 4. Difficulties in managing a class action f. Notice: which differs according to the type of maintainability (23(c)(2)) III. More on Rule 24: a. Conducting the Action - In order to prevent injustice or undue delay, court may issue orders on the course of proceedings, and other procedural matters. b. Settlement, Voluntary Dismissal, Compromise – only with court’s approval* i. All class members who would be bound have to be notified first, and court will only approve after a hearing and on a finding that it’s fair, reasonable and adequate 1. if a class member objects, court has discretion to deny it. c. You can appeal if court denies class-action certification d. Attorney’s Fees & Nontaxable costs – court may award as authorized by law i. There must be notice, and class members can object IV. Some Problem with class actions – normal rules of litigation assumes the client who hires the lawyer guides the case, authorizes settlement, and benefits directly from relief. This is not true in class actions. a. Fees - In normal litigation, client pays the lawyer's fee b/c they agreed to do so. While the named parties of a class action have agreed, the absent parties have not. Yet lawyers who have worked to benefit the whole group should be paid. b. Courts apply the "common fund" doctrine - a Pl whose efforts create a fund is entitled to have those who benefit from it to contribute to his lawyer's fee. Normally, courts award the class lawyer a fee taken directly from the fund created by the litigation. How should the court calculate this fee? i. Simple percentage may be appropriate, like a contingency fee. Page 10

ii.But some argue that a key ingredient of the contingency fee is the agreement btwn lawyer & client, this is missing in a class action. Instead, you should calculate the hourly rate and adjust based on various factors like special risks, novelty of the issue, etc. c. Damages and Injunctive Relief – Problem is making sure that the class recovery finds its way into the hands of class members. Many class members unaware and don’t claim the damages. Sometimes notice is difficult. i. One solution is the Fluid Class recovery - in the case of a class consisting of past consumers that dealt with a company, damages would be distributed to future consumers through rate reductions lasting long enough to exhaust the recovery. 1. Problem here is that there is no compensation for the plaintiff. So, instead it serves to deter defendants, but not to compensate plaintiffs. V. Phillips Petroleum v. Shutts a. Facts: Class action was certified, and notice given to class member via certified mail, that they would be included in the class and represented by class reps unless they opted out. Court used Kansas law, but only a small percentage of the class members resided in the forum state. Df argue lack of PJ on the out-of-state parties b/c no minimum contacts w/Kansas, and also b/c the op-out did not establish affirmative consent of PJ. b. Court Says: PJ is meant to protect Dfs, not Pls, from the burdens of being dragged to a forum where they have no minimum contacts. The court and the named Pls are adequately protecting the interests of the unnamed plaintiffs. Also, the unnamed Pls don’t have the burden of traveling to the forum state, and defending against Kansas's judgment. Court says this is not unconstitutional. Kansas court can apply Kansas law to unnamed parties b/c they were given notice, and an opportunity to opt-out, and court says this satisfies due process. c. Rule: Due process requires that, where a forum state wishes to bind an absent Pl, the Pl must receive adequate notice and an opportunity to be heard, and the Pl must be able to opt-out. VI. Class Actions and SMJ: a. Complete diversity requirement for class actions: only look at class reps; ignore class member b. Amount in controversy requirement: cannot aggregate claims of all class members for purposes of satisfying amount in controversy.. i. Pendant party jurisdiction (Exxon case) allows Pls to aggregate as long as name party meets amount in controversy. VII.More on Class Actions: a. Due process – if another person is cut off from a claim after a class action suit, how does that work with requirements of due process? i. Public Policy – there’s a tradeoff btwn binding people that aren’t there, and efficiency 1. Better chance of winning - based on economy of scale 2. Everyone else gets benefits of a better counsel, which you wouldn’t have gotten if litigated individually b. Issue: Corporations using class actions to shield against future liability i. Problem - mandatory settlement, where members can't opt out and pursue their cases separately, and settlements that cover future claimants. Critics say these restrictions violate the constitutional rights of individual plaintiffs. ii.They may be good for current claimants, but bad for future claimants. 1. If Pl's lawyer doesn’t want to broaden the settlement to include future claimants, they'll "shop around" to another Pl's lawyer that will. Page 11

VIII.Amchem Products, Inc. v. Windsor a. Issue: Whether a very broad class can be certified as a class action – it wanted to

achieve global settlement of current and future asbestos-related claims. Class potentially encompassed millions of people, tied to one commonality – that they were, or might someday be, affected by past exposure to asbestos manufactured by one of more than 20 companies. b. Outcome: Class cannot be certified, per Rule 23 i. Common issue predominance – not met b/c so many different facts surrounding individual class members; class is too broad ii.Adequacy of Representation (named parties will adequately represent the interests of the class) 1. The named parties are typical, but the class itself is so split by conflict that these people cannot possibly meet the interests of the class. The currently injured want immediate, generous payments, in conflict with the exposure-only plaintiffs, who seek inflation-protected fund for the future. No assurance that the class reps properly understood their representational requirements. iii.The global-settlement scheme should be addressed by Congress (legislature), not the courts (judicial). IX. Martin v. Wilks - Intervention and Class Actions a. 1st Action: a class action suit brought by black firefighters against City of Birmingham for discrimination in employment. They settled by consent decree. b. 2nd Action: Other white firefighters sued the city for money damages for the promotions they didn’t get due to the consent decree. City defends itself that it was only doing what decree said. i. You cannot be bound by a decree to which you were not a party, b/c it’s against due process. ii.City argued that the 2nd action was an impermissible collateral attack, b/c they had passed up their opportunity to intervene in the 1st action, so now they are precluded. 1. However, court says Rule 24 allows intervention, but does not require it. Rule 19, however, requires parties to join parties necessary to have a complete and final judgment; therefore the city had the burden to determine which additional parties should have been added to the action. c. Dissent:Because of happenings in the world, what may have previously been a good claim may longer be. Here we have a judgment entered by the court (the happening), of which made legal what may have otherwise been illegal. i. Civil Rights Act of 1991 - Congress limited the rights of non-parties to attack consent decrees by barring any challenges by parties who knew or should have known of the decree or who were adequately represented by the original parties. d. Judge could have solved the problem: by saying in 1st action that he won’t approve the consent decree unless there is a mandatory joinder of all firefighters & others that will be affected. i. Then we would have achieved, consistent with due process, a decree binding on the class.

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Pros and Cons of Discovery - Rule 26 requires court to weigh the benefits and costs. Pros Cons Promote settlement (b/c you find out real facts) Expensive Narrow or eliminate issues, which makes a Places heavy pressure on the integrity of the more focused, direct trial (shorter and more attorney (sanctions). (ex: may not submit docs efficient trial) if incriminating) Preserve evidence for trial (Testimony of Discovery request may be burdensome, so it witnesses who may not be available for trial would be objected. can be taken via deposition) Prepare for trial and avert surprise - Get judicial What will be submitted? If specific doc not rulings based on the facts as they really are requested, it won’t be submitted. If overbroad, they might object. Facilitates public justice function of judicial May cause harassment, delay & attrition, system especially when resources of the parties are unequal II. Scope of discovery Rule 26(b): What may be discovered: any matter that is relevant to the claim or defense of any party & reasonably calculated to lead to discovery of admissible evidence, and is neither privileged nor prepared or acquired in anticipation of litigation or for trial unless discovery has been otherwise limited by a protective order of the court III. Information already in the discoverer's possession a. Even if discoverer has info, he is entitled to discover it from his adversary b. A party is entitled to discover what other parties know, in order to facilitate his own preparation and possible settlement. Court has power to intervene when: i. discovery becomes unreasonably cumulative or duplicative (burden outweighs benefit) -orii.The party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought IV. Impeachment Material - Discovery not limited to direct substantive evidence, but includes materials that may impeach (to question a person's good character) an opponent's witness. a. Trend is to require discovery in impeachment material too - b/c this info may not have anything to do with the merits, and may not be reliable V. Opinions and contentions - Discovery not limited to facts, but may also include opinions held by non-experts, and assertions regarding the facts or application of law to the facts. (rule 33(b) and 36(a)) VI. Insurance & other information about financial assets - Rule 26(a)(1) - requires disclosure of insurance agreements available to satisfy any eventual judgment, even though they remain inadmissible at trial. VII.Rule 26(g) - requires attorney to certify every discovery request I.

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The most cost-efficient method of getting information is through informal discovery. But sometimes you need formal devices b/c there’s info not readily available to you. II. Required Disclosures - Rule 26(a)(1) – Parties must meet early on and exchange certain (w/o request) - names of witnesses & descriptions of docs that the disclosing party may use in support of claims or defenses, as well as calculations of damages, and copies of insurance agreements. Once these disclosures have occurred, then parties can request additional info (Rule 26(d) says cannot request other forms of discovery until after the required meetings of Rule 26(f)). a. "Solely for impeachment" - if info is solely for impeachment, it need not be part of the initial disclosures. This means that info is used only to attack the other party's credibility, not the facts, etc. b. Timeline for disclosures i. Timeline begins when Df has been served or has "appeared" in the lawsuit 1. Service - when Df has been served, or waived formal service pursuant to Rule 4(d) 2. Appearance - Df's filing some paper or motion that evinces its participation in the lawsuit. It would include an answer as well as various Rule 12(b) motions. ii.Rule 26(f) – Parties must meet to discuss the case. Parties can then, or within 2 weeks, exchange the required disclosures, per Rule 26(a)(1). iii.Rule 16(b) requires that (within 90days of appearance/120 days of service), judge holds a scheduling conference to discuss discovery & other pretrial matters (how they’ll proceed). c. Exempted disclosure - Rule 26(b)(1)(E) - lists exempt categories (very small or very large claims) i. Smaller claims and those in which either a well-developed record or the absence of counsel make disclosure unnecessary or potentially unfair ii.Very large cases, in which one imagines that close judicial supervision will displace the Rules. III. Asking Questions: Interrogatories and Depositions (rules 28, 30, 31, 32, 33, 37) a. Interrogatories- send opponent (a party) a list of questions to answer, and then wait for a response. Recipient must either answer of object. i. 25 questions max, get permission from court for more (of if other party agrees) ii.Nonparty witnesses can be deposed but don’t need to answer written interrogatories iii.Response is certified by party answering – there are sanctions if rules violated. b. Deposition - like questioning a witness at trial but w/o a judge. i. Usually in lawyer's offices; lawyers, witness, and a court reporter or recording device present. ii.Lawyers ask questions that witness has to answer under oath iii.Limits: no more than 10 depositions by any party, and no deposition may exceed a day of 7 hours, and no person may be deposed a 2nd time w/o permission of the court. iv.Only small portion will actually be relevant, but this is what you have to figure out. Anything could be relevant or lead to discovery of admissible evidence. c. Deposition on written questions (halfway btwn the 2) - Rule 31; this is rarely used

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i. Lawyer write down the questions and sends to court reporter presiding at the deposition, and court reporter asks the questions and writes down the answers. ii.Cheaper than deposition, but limited b/c yields less info. Virtually never used. IV. Examining Things and People: (rule 34, 35) a. (Rule 34) Production & Inspection of documents, things, and land - permits inspection of those things in possession of the opposing party. Now you are doing your own research instead of letting the opposing party interpret. Gives you a sense of the action (ex: flurry of emails sends a sense of panic). i. Docs - any means of recording info incl. emails, photos, videos, etc. ii.Procedure for requesting docs: 1. From a party - send a Rule 34 request, specifying the docs sought 2. From nonparty- similar request, but presented as a subpoena (Rule 45) iii.Number of docs requested not limited 1. Very broad requests allowed, b/c you don’t know exactly what info opposing party has, but then so many docs are available, & only a few are relevant. 2. Opposing party might object b/c request was too broad, and ask them to narrow the request. The requester might be suspicious then that opposing party is seeking them to narrow the request so as to insulate the production of relevant and damaging evidence. iv.Rule 34(b) requires that docs are produced "as they are kept in the usual course of business or shall organize and label them to correspond with the categories of the request.” b. (Rule 35) Physical & mental examinations:provides for a special application to the court and a showing of "good cause." This is limited b/c it’s considered intrusive (see Privacy). V. Requests for Admission (Rule 36): Asking your opponent to admit things a. Doesn’t uncover evidence so much as it makes evidence irrelevant by taking an issue out of controversy b. If you ask for a question that’s central to the claim, how can party respond to this if that’s why you’re here. Court may deem something admitted if time has lapsed. Some courts though only hold it admitted if it’s a peripheral issue, not a core one. VI. Discovery: Supplementing Responses - Rule 26(e) requires that parties continue to supplement discovery responses "seasonably." a. What must be supplemented? i. Correct errors - if previous answer was incorrect when made or correct when made but no longer true under circumstances such that a failure to amend would constitute knowing concealment ii.Disclose when potential new witnesses are identified iii.Supplement previous production, even if previous was merely incomplete b. "Seasonably" - Court may order specific intervals of time to produce supplemental discovery. But if it doesn’t, you have to do it on your own. Not clear what seasonably means, but if court decides you didn’t supplement seasonably, you can be sanctioned. c. Enforcement - Rule 26(e) says if not complied with, sanctions can be imposed without first issuing a discovery order. This is to make sure if a lawyer doesn’t want to comply, thinking if he'll have to then he will, to not abide until discovery is ordered (they might do this so as to give opposing party no time to investigate that info). This is inefficient; we want lawyers to abide right away. So sanction can be imposed right away. Page 15

i. But doesn’t just have to be because of bad faith conduct. It's also about justice and efficiency. ii.If a party doesn’t submit supplemental discovery timely, they may be barred from using that info at trial (like revealing the name of a witness, then can’t use witness at trial). Pros Cons Cheap. Limited # of questions you can ask. Good for factual information - things as Can’t follow up on evasive answers, to which you can frame an so don’t get enough valuable info. unambiguous question of fact Since most routine info disclosed in 1st stage (req. discl.), there may be few situations where this will be a useful tool. d. Deposition - like questioning a witness at trial but w/o a judge. i. Usually in lawyer's offices; lawyers, witness, and a court reporter or recording device present. ii.Lawyers ask questions that witness has to answer under oath iii.Limits: no more than 10 depositions by any party, and no deposition may exceed a day of 7 hours, and no person may be deposed a 2nd time w/o permission of the court. iv.Only small portion will actually be relevant, but this is what you have to figure out. Anything could be relevant or lead to discovery of admissible evidence. e. Deposition on written questions (halfway btwn the 2) - Rule 31; this is rarely used i. Lawyer write down the questions and sends to court reporter presiding at the deposition, and court reporter asks the questions and writes down the answers. ii.Cheaper than deposition, but limited b/c yields less info. Virtually never used. VII.Examining Things and People: (rule 34, 35) a. (Rule 34) Production & Inspection of documents, things, and land - permits inspection of those things in possession of the opposing party. Now you are doing your own research instead of letting the opposing party interpret. Gives you a sense of the action (ex: flurry of emails sends a sense of panic). i. Docs - any means of recording info incl. emails, photos, videos, etc. ii.Procedure for requesting docs: 1. From a party - send a Rule 34 request, specifying the docs sought 2. From nonparty- similar request, but presented as a subpoena (Rule 45) iii.Number of docs requested not limited 1. Very broad requests allowed, b/c you don’t know exactly what info opposing party has, but then so many docs are available, & only a few are relevant. 2. Opposing party might object b/c request was too broad, and ask them to narrow the request. The requester might be suspicious then that opposing party is seeking them to narrow the request so as to insulate the production of relevant and damaging evidence. iv.Rule 34(b) requires that docs are produced "as they are kept in the usual course of business or shall organize and label them to correspond with the categories of the request.” Page 16

b. (Rule 35) Physical & mental examinations:provides for a special application to the court and a showing of "good cause." This is limited b/c it’s considered intrusive (see Privacy). VIII.Requests for Admission (Rule 36): Asking your opponent to admit things a. Doesn’t uncover evidence so much as it makes evidence irrelevant by taking an issue out of controversy b. If you ask for a question that’s central to the claim, how can party respond to this if that’s why you’re here. Court may deem something admitted if time has lapsed. Some courts though only hold it admitted if it’s a peripheral issue, not a core one. IX. Discovery: Supplementing Responses - Rule 26(e) requires that parties continue to supplement discovery responses "seasonably." a. What must be supplemented? i. Correct errors - if previous answer was incorrect when made or correct when made but no longer true under circumstances such that a failure to amend would constitute knowing concealment ii.Disclose when potential new witnesses are identified iii.Supplement previous production, even if previous was merely incomplete b. "Seasonably" - Court may order specific intervals of time to produce supplemental discovery. But if it doesn’t, you have to do it on your own. Not clear what seasonably means, but if court decides you didn’t supplement seasonably, you can be sanctioned. c. Enforcement - Rule 26(e) says if not complied with, sanctions can be imposed without first issuing a discovery order. This is to make sure if a lawyer doesn’t want to comply, thinking if he'll have to then he will, to not abide until discovery is ordered (they might do this so as to give opposing party no time to investigate that info). This is inefficient; we want lawyers to abide right away. So sanction can be imposed right away. i. But doesn’t just have to be because of bad faith conduct. It's also about justice and efficiency. ii.If a party doesn’t submit supplemental discovery timely, they may be barred from using that info at trial (like revealing the name of a witness, then can’t use witness at trial). Pros Cons Real-time follow up and interactions. May be time consuming, especially Lawyer can ask specific questions, and if not organized or ignorant. follow up if answers are evasive, or if However, can be effective time answers open up new avenues of spent if you’ve prepared in advance inquiry. & know what to ask. If you look like you have a lot of info, and Expensive very organized, looks like he might be very persuasive to the jury, may promote settlement. d. Deposition on written questions (halfway btwn the 2) - Rule 31; this is rarely used i. Lawyer write down the questions and sends to court reporter presiding at the deposition, and court reporter asks the questions and writes down the answers. ii.Cheaper than deposition, but limited b/c yields less info. Virtually never used. X. Examining Things and People: (rule 34, 35) a. (Rule 34) Production & Inspection of documents, things, and land - permits inspection of those things in possession of the opposing party. Now you are doing Page 17

your own research instead of letting the opposing party interpret. Gives you a sense of the action (ex: flurry of emails sends a sense of panic). i. Docs - any means of recording info incl. emails, photos, videos, etc. ii.Procedure for requesting docs: 1. From a party - send a Rule 34 request, specifying the docs sought 2. From nonparty- similar request, but presented as a subpoena (Rule 45) iii.Number of docs requested not limited 1. Very broad requests allowed, b/c you don’t know exactly what info opposing party has, but then so many docs are available, & only a few are relevant. 2. Opposing party might object b/c request was too broad, and ask them to narrow the request. The requester might be suspicious then that opposing party is seeking them to narrow the request so as to insulate the production of relevant and damaging evidence. iv.Rule 34(b) requires that docs are produced "as they are kept in the usual course of business or shall organize and label them to correspond with the categories of the request.” b. (Rule 35) Physical & mental examinations:provides for a special application to the court and a showing of "good cause." This is limited b/c it’s considered intrusive (see Privacy). XI. Requests for Admission (Rule 36): Asking your opponent to admit things a. Doesn’t uncover evidence so much as it makes evidence irrelevant by taking an issue out of controversy b. If you ask for a question that’s central to the claim, how can party respond to this if that’s why you’re here. Court may deem something admitted if time has lapsed. Some courts though only hold it admitted if it’s a peripheral issue, not a core one. XII.Discovery: Supplementing Responses - Rule 26(e) requires that parties continue to supplement discovery responses "seasonably." a. What must be supplemented? i. Correct errors - if previous answer was incorrect when made or correct when made but no longer true under circumstances such that a failure to amend would constitute knowing concealment ii.Disclose when potential new witnesses are identified iii.Supplement previous production, even if previous was merely incomplete b. "Seasonably" - Court may order specific intervals of time to produce supplemental discovery. But if it doesn’t, you have to do it on your own. Not clear what seasonably means, but if court decides you didn’t supplement seasonably, you can be sanctioned. c. Enforcement - Rule 26(e) says if not complied with, sanctions can be imposed without first issuing a discovery order. This is to make sure if a lawyer doesn’t want to comply, thinking if he'll have to then he will, to not abide until discovery is ordered (they might do this so as to give opposing party no time to investigate that info). This is inefficient; we want lawyers to abide right away. So sanction can be imposed right away. i. But doesn’t just have to be because of bad faith conduct. It's also about justice and efficiency. ii.If a party doesn’t submit supplemental discovery timely, they may be barred from using that info at trial (like revealing the name of a witness, then can’t use witness at trial).

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I. Relevance and Privilege - Rule 26(b)(1) gives the parties a right to discover "any matter, not privileged, which is relevant to the subject matter involved in the pending action (or you could say any matter that is relevant to the claim or defense). a. Relevance - To be discoverable, information must be relevant. Relevant means that the information tends to prove or disprove something that matters according to the applicable substantive law. i. Blank v. Sullivan & Cromwell 1. Facts: Suit alleges sexual discrimination practices in hiring associates. Pls want Dfs partner selection criteria. Df says material is irrelevant b/c Pl only alleges discrimination in hiring as an associate, not a partner. 2. Outcome: Rule 26 says discoverable material also includes that which may reasonably be calculated to lead to the discovery of admissible evidence. The info on partner selection criteria may show a pattern or be reflective 3. Notes: Court will usually just give the doc request if only problem is relevancy; it can be sorted out later. However, if there’s irrelevancy coupled with another issue like burden, harassment, public policy, etc., then they may say, no to the request. ii.Steffan v. Cheney 1. Facts: Steffan was discharged from naval academy when he admitted he was a homosexual, and he brought this suit seeking the equitable remedy of being reinstated (can’t be discharged just b/c you say you’re gay). During deposition he was asked if he ever engaged in homosexual conduct while in naval academy, which would be a valid reason to discharge him. Steffan refuses to answer b/c he says it’s not relevant. a. The court dismisses the claim b/c he refused to answer. It gets appealed – you can’t appeal a discovery order until the end of the case, but here it happened b/c dismissal was based on a discovery issue. 2. Outcome: The action here is based on the unlawful discharge b/c of a statement made that he was gay. His homosexual conduct is irrelevant b/c it was not the basis for his discharge. b. Privilege and Trial Preparation Materials [Rule 26(b)(3)] - Ordinarily, a party may not discover docs and tangible things that are prepared in anticipation of litigation or for trial. However, subject to Rule 26(b)(4) on Expert testimony, that material may be discovered if they are discoverable under Rule 26(b)(1), or that the party seeking those materials shows they have substantial need for them, and cannot w/o undue hardship get it otherwise. i. Hickman v. Taylor (Rule 26b3 was not effective at the time of this case) 1. Facts: Accident w/ tugboat, 5 of 9 crewmembers die. In anticipation of litigation, tugboat owners took statements from surviving 4 & others who may have info. Pl brought wrongful death action and asked for those statements. Dfs refused saying they were privileged matter obtained in preparation for litigation. 2. Outcome: Discovery of written materials obtained or made in preparation for litigation are not subject to discovery where the party seeking discovery has not made a showing that the info requested is necessary and that denial of discovery would unduly prejudice that party's case. These were statements made from known witnesses, and Page 19

Pls could have also taken statements from them. Discovery of the attorney’s work product made be permissible when necessary, but only when alternate method of acquiring this info is unavailable. II. Expert Information a. Rule 26(a)(2) requires, as part of initial disclosures, info about experts who may testify and about the basis for their testimony. The adverse party receives a written report made & signed by expert witness. b. Rule 26(b)(4) provides for additional discovery from experts. The Rule requires that testifying experts submit to pretrial deposition but erects special barriers around the opinions of nontestifying experts. i. Testifying experts – everything is discoverable, and you're required to disclose ii.Nontestifying experts – They are more like consultants, and getting this info is encouraged b/c a lawyer probably won’t know specific info on the subject. The statements are not going to be brought into trial. Only benefits the adversary system if consultant is free to give honest opinion. 1. So the Rule says not discoverable unless there are extraordinary circumstances. a. Rare, b/c most likely, both parties have equal access to such types of experts 2. The rule is written in such a way that the reqs are hard to meet. This is b/c we don’t want this to be discoverable. Policy reasons for this: a. Interest in allowing counsel to obtain expert advice without fear that every consultation will give the opponent a potential source of advantage b. It would be unfair to allow one party to benefit from the efforts and expense incurred by the other in preparing a case c. Allowing compulsion may deter experts from serving as consultants - they may not want to go to trial c. Thompson v. The Haskell Co. i. Facts:Pl brought action against former employer, alleging that she was fired when she didn’t acquiesce to his sexual advances, and that she suffered depression as a result. 10 days after she was fired, she was examined by a Dr. Df now asking for copy of report that assessed her mental & emotional state from Dr. Pl refuses, claiming this is not discoverable, b/c he’s a nontestifying expert. ii.Outcome:Rule 26(b)(4) says info from a non-testifying expert is not discoverable unless there are exceptional circumstances. Here, there were exceptional circumstances. The report is highly indicative of her state after her termination (only 10 days after), which is very important for the case (to prove if the firing caused such distress). Also, there was no way Df could get this info otherwise. The suit was filed long after, so another examination could not prove anything. d. Chiquita International Ltd. v. M/V Bolero Reefer i. Facts: Chiquita hires Reefer to ship their bananas; Reefer lost and damages a lot of bananas (spoilage). Chiquita sues, and gets a non-testifying expert to inspect the ship and cargo shortly after. Reefer then tries to get expert’s testimony (deposition), but Chiquita refuses b/c he’s exempt as a nontestifying expert. ii.Outcome: Falls under Rule 26(b)(4) – a non-testifying expert hired to conduct investigation in prep for trial. Doesn’t fall under the exceptional circumstances as Df says b/c Df was fully able to get that info themselves. Page 20

Can’t depose non-testifying expert, however, Df still has access to docs (docs not exempt just b/c conveyed by a non-testifying expert). III. Privacy: (Rule 35) Physical & mental examinations: a court order for mental or physical exams requires an affirmative showing by the party requesting the order that each condition for which an examination is sought is genuinely “in controversy,” and that “good cause” exists for ordering each particular examination. a. Schlagenhauf v. Holder i. Facts: Bus accident; lawsuit follows. All parties blaming each other. One party alleges bus driver was negligent, and requests a whole bunch of medical examinations (including eye test, but including other physical exams as well). ii.Outcome: Driver did not assert any such condition as a defense or claim – it was the opposing party seeking it. Rule 35 requires that a party requesting medical exams has adequately demonstrated that the condition on which the exam is sought is in controversy and that there is good causefor ordering each particular exam. There was nothing that justified such a broad internal medical exam. 1. Also, allowing such broad exams could result in a “fishing expedition” where they look for anything and then try to say that was the cause of the accident (can be exploited). iii.Concurrent/Dissent: Eyesight is an important factor in car accidents, so this exam should be pursued at least to make sure that this was not the cause.

I. Discovery Abuses a. Too little discovery ("stonewalling") - occurs when one party refuses or resists appropriate requests for discovery. The Rules have partial solutions for this: i. Refusal to cooperate with justifiable discovery requests can subject a party to sanctions b. Too much discovery - When one party seeks more discovery than the case justifies so as to discourage or hamper the opponent. The Rules have partial solutions for this: i. If info requested is irrelevant or privileged, one may simply decline to answer ii.Discoverable material is limited to a "matter relevant to a claim or defense," but a judicial order can broaden that scope if necessary iii.Rule 26(g) - lawyer's signature & states that the discovery is not "unreasonable or unduly burdensome or expensive, given the needs of the case," & there are sanctions iv.Rule imposes mechanical limits - 25 interrogatories, and a single 7 hour deposition of each witness c. Mismatched discovery - When the 2 parties have significantly unequal wealth; the richer party, even if it does not abuse discovery, may seem to have an unfair advantage. Rules don’t address this problem specifically. Some remedies may be: i. Party with fewer resources has option of conducting discovery from public sources (govt or public docs), and the internet has made this research faster & cheaper too. ii.You may be able to "ride free" other side's discovery efforts - wait & get info at deposition Page 21

1. However, Rule 5(d) made this harder to do: it forbids parties from filing any discovery materials with the court until they are used in proceeding. 2. Courts did this to save space in doc storing. But it may curtail the illfunded party. iii.Other remedies: 1. Rule 26(c) permits any party to seek a protective order. That rule permits the court to limit discovery, even though the info sought may otherwise be discoverable, if it would produce "annoyance, embarrassment, oppression, or undue burden or expense." 2. Rule 16 - discovery conference. Involves judge in framing of a discovery plan. Court may convene on its own motion (if judges wish to do this). 3. Basically, the remedies consist of 3 tools: limits on discovery, sanctions for bad behavior, and judicial supervision. II. Remedies: Management and Sanctions - Ultimate incentive to comply w/ discovery obligations - court's power to punish violations of the discovery rules. Sanctions aren’t limited to fines, and when seeking a sanction, you would look for one tailored to the misconduct, and what the litigation needs and purposes are. Even though judges have many options on how to punish this, many discovery violations aren't punished. a. Reason 1:Judges will accept delays & excuses until they no longer endure it b. Reason 2: Judges are reluctant to punish b/c it may add to the burden of discovery c. Reason 3: Difficult for judges to figure out which side is being unreasonable in a particular dispute. Discovery disputes tend to be very fact-intensive and timeconsuming for judges. i. Thompson v. Department of Housing & Urban Development 1. Facts: Objecting to a discovery request b/c it’s overbroad. 2. Outcome: When there are difficult questions regarding the scope, it becomes very time-consuming for the courts to determine what’s right under Rule 26. Therefore, the court says that the parties should get together and compromise in good faith. Parties should focus on the burden/benefit factors of Rule 26(b)(2), and weigh it out with each other. If an agreement can't be reached, then the court will step in. III. Poole v. Testron, Inc. a. Facts: Product liability suit, and Pl moves to get attorney’s fees and expenses as sanctions against Df for discovery violations. b. Issue 1: Whether the Df’s actions warrant sanctions. i. First look at whether there was a violation of discovery – yes. 1. Rule 36 - under the plain language of this rule, a party must either lodge an objection or an answer, not both a. Df sabotaged the request for admissions - in almost every answer they both objected and answered, and you can't do both - basically trying to confuse Pl. 2. (Rule 30 & 31) In response to Pl's request for docs, Df didn’t perform an adequate search 3. (Rule 26(g) ) Counsel for Df (although he signed the docs) did not conduct "reasonable inquiry." What is reasonable is a matter for Court to decide based on circumstances. ii.Then, ask whether the "opposing party's nondisclosure, response or objection was substantially justified, or that other circumstances make an award of expenses unjust."(Rule 37(5)(A)) – No. Page 22

1. Df argues that it has cured those discovery issues, and has spent $23k doing so, so it would be unjust to impose sanctions. (trying to use Rule 37(5)(A)(iii) - "But the court must not order this payment if […] other circumstances make an award of expenses unjust." a. But court says that if the only sanction for failing to comply with discovery rules is having to comply with them if you're caught defeats the purpose of imposing sanctions. Parties would try not to comply, and then only comply if they're caught - this is unjust. c. 2nd Issue: What sanctions should the court impose? i. Rule 26(g)(3) - "[court shall impose] an appropriate sanction which mayinclude an order to pay the amount of reasonable expenses incurred b/c of the violation, including a reasonable attorney's fee." Court is not limited on how to impose sanctions, but need only use discretion in imposing an "appropriate" one. 1. Although court did not find bad faith in Df's discovery violations, still needs to impose sanctions. Prejudice to other party - delays and disadvantages. May cause other party to do work not necessary if there was proper discovery. a. They might find out they don’t need to explore a specific area, etc. b. Delay in info may cause unoffending party to do additional analysis after d. Therefore, court concludes that attorney's fees and other expenses requested are justifiable.

I. On one hand, determining jurisdiction often depends on developing facts about the Dfs contacts with the forum (International Shoe). However, a challenge to a court's jurisdiction questions the court's power to order disclosure of the very facts on which jurisdiction may depend (Catch 22 - circular reasoning). a. So, what happens when a party challenges discovery orders based on jurisdiction? b. Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee i. Facts: Pl brought suit in PA on an insurance claim. Df’s are foreigners and challenged PJ. Pl responded by making certain requests for discovery, but Df refused saying it was too burdensome. Court ordered discovery, Dfs refused, and as a sanction, court entered a finding for PJ. Df argues that this violates due process. Until a court has jurisdiction over a party, that party need not comply with any orders from the court (including discovery orders). ii.Outcome: Not an abuse of discretion. There was good reason to believe PA had jurisdiction: 1. Pl had docs showing it (prima facie min contacts) – they weren’t just requesting docs in discovery in hopes of finding something (no fishing expedition here) 2. Df had raised a defense – once you raise a defense, other side should be able to test it. 3. They didn’t have to answer the complaint, but since they chose to they waived it. 4. Court says anyway, there are other ways to get PJ here: Page 23

a. A sanction under Rule 37 applied to establish PJ creates no more of a due process problem than a Rule 12 waiver (which says PJ can be waived if not timely objected to – both procedural, and use of procedural rules does not in itself violate due process). b. The preservation of due process was secured by the presumption that the refusal to produce evidence material to the administration of due process was but an admission of the want of merit in the asserted case. iii.Concurring: there was the prima facie case for min contacts, so when Df failed to comply with discovery requests, ok for court to find min contacts existing under Rule 37, waiver or assumption. However, the due process req. of PJ to important to just waive it.

I. Default and Default Judgments (Rule 55) - If a defendant fails to respond to a pleading within the time designated for response, he is in default and subject to entry of a default judgment. a. FRCP 55(c) authorizes the court in its discretion to set aside an entry of default upon good cause shown. b. Peralta v. Heights Medical Center i. Facts: Peralta owes money to Medical center, and was personally served, but it was untimely. Peralta never appeared or answered, and default judgment entered against him. Without Peralta’s knowledge, his property was confiscated and sold to pay for the judgment. Peralta tries to set aside the default judgment and obtain relief, saying service of process untimely. Texas law says Peralta must show, among other things, a meritorious defense. So even though there was defective service, rejects b/c no meritorious defense. Goes to Supreme Court. ii.Outcome: B/c there was no meritorious defense, the same judgment would be entered on retrial, so Texas court assumed no harm from judgment entered w/o notice. SC says no, service of process too fundamental to be waived. If notice was good, Peralta could have done other things – settlement, paid the debt, sold property on his own (at true value, rather than at auction which is what happened here.) II. Failure to Prosecute: Involuntary Dismissal - remedy for the defendant when the plaintiff fails to prosecute her claims or to obey court rules or orders. Disobedience that would justify dismissal also often consists of litigation delays, or failures to appear, respond or take other required action. [Rule 41(b)]. a. Because the involuntary dismissal is based on the facts of each case, it’s hard to pinpoint the legal standards courts use to do it. Also, courts rarely explain why they have dismissed a case, b. Some states impose absolute deadlines to deal with less than diligent plaintiffs. Even so, there's a lot of litigation over whether the opposing party has expressly or impliedly waived such a deadline.

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c. Default judgments and involuntary dismissals may present both claim and issue preclusion issues if Pl starts over or if there is litigation on a closely related matter. i. Dismissal based on Pl’s failure to satisfy SMJ, venue, joinder of a party doesn’t operate as adjudication on the merits. III. Voluntary Dismissal - FRCP 41(a)(1) provides that the Pl may dismiss once without leave of court by filing notice of dismissal before Df answers or motion for summary judgment, or if all parties who have appeared agree in writing to dismiss. a. Otherwise, it’s judge’s discretion to allow it. i. Usually a judge won’t allow it if its b/c Pl realizes they'll lose on the merits. ii.But if it’s a procedural ruling that's making Pl's case more difficult, it's harder for court to decide whether or not to allow it. b. A voluntary motion to dismiss the complaint doesn’t cut off Pl’s right to nonsuit unless the motion is converted into a summary judgment motion (like if they agreed per settlement to enter a summary judgment order, etc.). Also, if Pl had already dismissed same claim once be4, the 2nd dismissal operates as an adjudication on the merits (and Pl can’t file again). c. Why are cost-free voluntary dismissals permitted? i. Made sense at common law, b/c gave Pl opportunity to replead if they filed wrong writ. ii.This doesn’t matter anymore, but we still have it to give Pl a chance to consider changed circumstances (to settle, etc.) d. Many courts require Pls seeking voluntary dismissal to pay Dfs attorney's fees as a condition of granting the motion. IV. Summary Judgment: Rule 56 provides that such motions are to be granted when “there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." a. Must be no issue of fact; even if story is improbable, still entitled to bring to jury. i. Arnstein v. Porter 1. Facts: Pl alleged music plagiarism. Df moved for summary judgment, after bringing the music for court to see there could not have been plagiarism b/c not similar. Pl also has a long record of suing unsuccessfully suing for plagiarism. Summary judgment granted. 2. On appeal, court looks at Rule 56, and has to determine whether there is a slightest doubt as to the facts, b/c then Pl entitled to jury trial. Court says even though it’s probably frivolous and improbable, a jury could find for him, b/c this is a question of fact whether the music is similar or not. Pl right to jury trial. ii.Repp & K&R Music v. Webber 1. Facts: Pl alleged copy infringement. Df counterclaims for same. Lower court granted summary judgment b/c they concluded the songs weren’t really similar, and b/c it was highly improbable that Webber had access to Repp’s songs to be able to copy them. 2. On appeal, court says that no matter how predictable a conclusion might seem, a reasonable jury could decide otherwise, and Repp is entitled to battle it out in a jury trial. Judge can’t act as a factfinder – that’s for the jury. b. If the dispute of fact involves evidence that is not admissible at trial, then he may grant summary judgment (b/c no question of fact for jury anyway). c. A party may be entitled to summary judgment by showing that the party bearing the burden of persuasion at trial will not be able to prove an element essential to its case, based on the record. i. Celotex Corp. v. Catrett Page 25

1. Facts: Widow brings wrongful death, alleging that her husband’s death resulted from products containing asbestos, and is suing 15 corporations that manufacture those products. Summary Judgment for Dfs, Pl says she doesn’t have the burden. 2. Rule 56 mandates an entry of summary judgment when a party who would have the burden of persuasion at trial, fails to establish sufficient showing of material fact in discovery. The court here says the burden is on the moving party (party asking for summary judgment) to show that there is an absence of genuine issue of material fact in the nonmoving party’s case.

I. Alternative Dispute Resolution (ADR) - With info from discovery, parties may decide they wish to avoid litigation. ADR depends on law for effectiveness. Parties basically contracted to not litigate and instead use ADR, so courts will enforce it. Trial serves as a default if they can’t agree. a. Magistrates may conduct arbitration. They may have close judicial relationships. i. ADR and litigation are not 2 separate systems II. Negotiation and Settlement: a. Settlements are faster & cheaper, but some argue they are also more qualitative b/c consent is a basic principle of justice, and b/c settlements can take account of nuances and subtleties in the facts and in the parties' interests that would be lost at trial. i. Other side of argument: settlement leaves parties less satisfied than if a trier heard their stories, permits might to triumph over right, and deprives the public of definitive adjudication of issues that may reach beyond the individual case. b. Lawyers use settlements for at least 2 reasons: i. A party may run out of funds to pursue litigation. Settlement may be better than getting nothing, in the event the case is dismissed, or if you get stuck with a default judgment, or no funds. ii.More importantly: settlements control risk. Trial outcomes are risky. 1. They are significantly unpredictable and tend to be all-or-nothing 2. Trial is expensive c. Freedom to settle: Judge doesn’t need to approve it, though they do grant a request for dismissal if that's part of the deal. The court won’t look at substance of settlement agreement b/c it intrudes on the autonomy of the parties. i. There’s an issue of Efficiency vs. fairness (must compromise): 1. Problem: Pls needing money right away may settle meritorious claims for trivial sums; Dfs eager to end it may offer meritless or fraudulent Pls substantial sums just to end litigation. 2. Legislatures can build procedural protection into settlements of certain kinds of claims 3. Although not required for judges to approve settlements, they can still be attacked on any ground that you would attack a contract (a settlement is a contract): fraud, duress, mistake, incapacity, unconscionability, etc. ii.Exception to "freedom to settle" arises in: 1. class actions: Rule 23(e) requires judicial approval of settlements 2. Cases involving minors: court is required to approve settlements Page 26

3. Some multidefendant cases d. Contracting to Dismiss - Simplest form of settlement is a contract (or release) - P agrees not to bring the lawsuit or drop one already filed. Usually something is given in exchange, like money. e. Settlement and Voluntary dismissal v. involuntary dismissal i. Voluntary dismissal - allows Pl to refile the suit. So the settlement agreement will say that Pl must refrain from refiling this or any related lawsuit. ii.Involuntary dismissal - this may be an advantage to Dfs. B/c it's on the merits, a Pl would be barred from filing another suit (prior adjudication), plus they still have the settlement agreement that says they can't. iii.If you have a simple dismissal with prejudice, if settlement is breached, it's handled as a breach of contract case. But, if there's actual judgment, it's easier to get breaching party to comply 1. court will enforce it rather than having to file another, separate suit for breach of K f. Some forms of partial settlement doesn’t end the lawsuit, but actually guarantees litigation i. Parties can agree to liability, but damages will be decided by court. ii.Or the opposite - liability question to jury, and jury chooses damages based on an agreement the parties made (min and max). 1. The min damages amt agreed on helps the Pl, b/c they get this even if they lose 2. Max amt agreed on helps the Df, b/c that's all they'll pay if they lose III. Third-Party participation in Settlement: Facilitation, Encouragement, and Coercion a. Settlement negotiations sometimes fail. Causes: i. Divergent estimates of the outcome ii.Bad communication b. Mediator - helps with communication; parties agree to go to help them with a settlement. However, this is not binding – parties still have to agree. Mediator succeeds only if parties agree 1. Engages the parties in a structured set of discussions leading to agreement 2. Courts and legislatures in some cases have established mandatory mediation ii.How might mediators proceed? 1. "Positional" meditation - Ask parties how much (or little) they would accept to settle the claim. This can be useful when parties don’t want to disclose their true settlement figures. The 3rd party is neutral, and looks at both, and finds a middle ground. 2. "Interest" mediation - try to discover the parties' goals, defining these less in monetary than in other terms. The ultimate goal is to create a settlement btwn 2 parties who want a settlement badly enough to get a mediator, but can’t do it themselves. Or if parties know they will eventually have to come to an agreement. iii.Mediator doesn’t propose a settlement – his goal is just to help the parties reach an agreement 1. Ethics problem – event that settlement seems unfair to mediator a. Mediator’s job is only to help them agree, but mediator's goal is to repair relationship for the long term, and if mediator thinks agreement may fall apart, then he didn’t do what he was hired Page 27

for. Mediator's role is to solidify relationship in the long-term. Keep them from having future disputes. iv.A statement of fact during mediation can be introduced as evidence if mediation fails & they go to trial. v.Judges' role in mediation 1. Rule 16 has a list of techniques that establishes as one of its objectives "early and continuing control so that the case will not be protracted b/c of lack of mgmt. 2. ADR Act of 1998 requires federal judicial districts to offer the parties, even after they have filed suit, alternatives to litigation, such as mediation or non-binding arbitration. c. ADR: i. Early neutral evaluation - Parties tend to be overly optimistic on how their case will turn out. So by presenting a brief statement of the case to a neutral party who assesses the case's strengths and weaknesses, parties will end up having more realistic negotiating positions. ii.Nonbinding arbitration - as a condition of going to trial, parties are required to present their cases to an arbitrator, who issues a decision. But, parties not bound by it unless they accept it. Party can still insist on trial w/o penalty. Some states provide that if the party insisting on trial, does no better at trial than in arbitration (even if he wins), will be liable for costs (like expert witness fees, or arbitrator's fees) iii.Summary Jury Trial- a small jury is chosen, and parties present case to jury in very concise form (lawyers would narrate what evidence will show w/o calling witnesses, etc.). Jury enters a verdict, but it’s not binding. Only serves as a basis for further negotiation. Makes parties better informed about what results might be at trial, so settlement is more informed. IV. Contracting for Confidentiality - One settlement goal of many D's, and some Ps, is confidentiality a. Usually means not letting case be known to public, but mostly the info or docs to be kept confidential. b. May be the most valuable bargaining tool P has. P may have discovered outrageous misconduct. i. Good for the party, but not for public, b/c maybe public should know about this! Maybe this info should belong to public not to the P. (ex. Product defects - public should know this). ii.Certain types of cases require judicial review b/c it’s so important for public knowledge (some discrimination cases, etc.) V. Contracting for Private Adjudication – You can agree before dispute arises (by contract) or after (if parties can’t agree, even with a mediator). a. Arbitration: private, nonjudicial adjudication. Why arbitration instead of court trial? i. Permits the parties to design their own procedure (including discovery) ii.Parties (to a greater extent than in courts), control the applicable substantive law iii.May be faster, cheaper, efficient iv.You can get confidentiality VI. Arbitration Clauses – Courts normally will enforce arbitration clauses; it’s fair and a good forum for resolution. a. Limitations: i. Nature of claims that can be arbitrated

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1. If public interests are involved, and if resolved in a private forum, these interests are not assured to be satisfied (fed statutes likes the Civil Rights Acts) 2. Congress may have intended a statute to be mandate a judicial forum. ii.Nature of the arbitration process - Court may also refuse arbitration if its involves procedural unfairness in the arbitration process

I. Preference for a jury trial. Don’t want to try same claim twice, so court will try to give you jury trial first. a. Benefits of a jury trial – We think we'll get a justice that's linked to community's standards of justice (diversity in the community). Giving power to the people b. Downsides of jury trial: i. Jury may be less competent to do certain types of factfinding than a judge ii.Bias - prejudices of the community (may be hostile to one side, and favorable to the other) iii.Expensive - jury trial is longer and more complicated than a non-jury trial II. Historical Reconstruction and the Seventh Amendment a. 7th amendment - in suits at common law, […] the right to a jury trial shall be preserved i. This doesn’t specify the scope of the right being preserved III. Historical test for deciding a right to a jury trial under the 7th amendment a. Courts seek to give parties same rights to jury trials as they had in 1791, where there was no right to a jury trial in equity. So, courts applying this test don’t directly inquire about a jury trial, and instead ask whether a given claim lays within the jurisdiction of the common law courts in 1791. b. Applying the Historical Test to New Claims – When a situation arises that did not exist in 1791: i. Chauffeurs v. Terry 1. Facts: Pl suing union for breaching their duty of fair representation in regards to issues union member were having with employer. Pl wants jury trial; Df says no right to jury trial in a duty of fair representation suit. 2. To apply the historical test, court gives a 2-part test: a. Compare the action here to one that existed in 1791, then decide if it would have been considered in equity or in law. i. Is transaction more similar to attorney malpractice (legal) or action for breach of trust (equitable)? Court says that although similar to trustee duty, here there was also an underlying breach of K issue (right to jury depends on fact of each case). So this test didn’t work here. b. Look at the remedies sought to determine if equity or law. i. B/c they weren’t properly represented, they sought damages for wages lost etc.; this is more like legal Page 29

malpractice – what you would have gotten had work been done properly. c. Applying the Historical Test to New Procedures - FRCP says that cases that were formerly either equitable or legal could now arise in one suit. But how was right to a jury trial in the new merged procedure (merger of law & equity)? Right to jury trials is given preference – it’s too important. i. Beacon Theatres v. Westover 1. Facts: Beacon tells Fox can’t perform Ks b/c violates anti-trust. Fox asking for declaratory relief that K doesn’t violate anti-trust, and for injunction against Beacon from filing a suit on anti-trust until His declaratory relief suit resolved. Beacon answered and counterclaimed on the antitrust violations. Beacon wants jury trial on antitrust issues (facts). 2. There’s a constitutional right to a jury trial, and courts try to preserve this right. Doesn’t matter that equitable claim came first. If issues are both equitable and legal, then jury trial cannot be dispensed with unless all parties agree. There’s no similar requirement to protect trials by courts. IV. The Jury's Integrity: Size, Rules of Decision, and the Reexamination Clause a. In 1973, SC constitutionalized 6-person juries - now it’s very widespread. Very controversial: i. Smaller jury is less average, less representative ii.Less likely to include any given point of view or social characteristic (race, politics, etc.) iii.More likely to render unusual verdicts that larger juries b. Fed system - unanimous verdicts required unless parties agree otherwise (rule 48) i. Some states permit non-unanimous verdicts ii.Rules on unanimity result in more hung juries 1. But where verdict has to more unanimous, juries may discuss issue more fervently and more detailed c. Becoming more common for court to overturn jury verdicts. Constitutional implications here: i. 7th amendment says "no fact tried by jury shall be otherwise examined by any court, than according to the rules of common law" (reexamination clause). But still, courts have power to overturn jury verdicts. V. Right to a Jury Trial (Rule 38) – demands that the right to a jury trial, per 7th amendment, is preserved a. Any issue that triable by a jury – party may demand it by serving adversary w/ written demand (which may be in the pleading, or filing the demand. i. Parties may specify the issue they want tried by a jury; default is that all issues are tried by jury. b. Jury trial is waived unless demanded. Demand may be withdrawn if all parties consent. VI. Trial by Jury or by Court (Rule 39) – when jury trial has been demanded, it must be given unless parties agree otherwise, or court finds that the issues are not triable by a jury (no fed right to jury). a. No demand – then no jury. But court may issue a jury trial when it could have been demanded. VII.Rule 48 – requires at least 6 and no more than 12 jurors, & each must participate unless excused. Unless stipulated otherwise, verdict has to be unanimous.

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I. Constitutionality of Jury Selection a. Until recently, juries didn’t consist of a demographic cross section (racial minorities, women, etc. not included). Now, different. Unconstitutional to discriminate based on race, sex, etc. b. Most jurisdictions have statutes that require jury selection pools to represent broad cross sections of the community. II. Assembling a Pool of Jurors: Choosing a jury involves 2 phases: a. A pool of prospective jurors is summoned i. Strives for inclusiveness ii.§1861 - entitles litigants to a jury selected at random from a fair cross section of the community 1. Can use lists such as voters' rolls, telephone books, etc. - all would yield substantially diff characteristics b. Rule 47 permits parties or attorneys to examine jurors through voir dire questioning, and allows for excusing jurors for cause, and for parties to eliminate jurors uses peremptory challenges. i. Questioning may be conducted by court, parties or both (rule 47(a)) III. Challenging for Cause - Litigants want (and are entitled to) an unbiased trier. a. Potential jurors are questioned, and some may be disqualified. b. Each party may challenge any juror for cause. They seek to convince the judge that juror is not qualified to serve. i. Mostly if juror knows litigant, there are excluded. Other than that very hard to challenge a juror for cause. ii.Also question jurors to uncover possible bias or prejudice (otherwise it would be a violation of due process) c. Jurors may lie. Don’t check the info, so lies only really found out by chance. If this is the case, you may challenge a verdict on the basis of inaccurate answers on voir dire. i. McDonough Power Equipment v. Greenwood 1. Facts: tort action where Pl was severely injured. During voir dire, jurors asked if them or immediate family suffered a similar accident that resulted in a disability, or prolonged pain and suffering. Found out after verdict came back for Pl that one of the jurors’ son was injured in tire explosion. Juror did not respond b/c he didn’t think it resulted in a disability or prolonged pain and suffering (good faith mistake). 2. Outcome: Court said that to obtain a new trial in such a situation, a party must first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause. Also notes that although juror may have various motives for concealing info, but only those reasons that affect a juror's impartiality can be said to affect the fairness of trial. IV. Peremptory Challenges - A peremptory challenge allows lawyers to strike a juror for no reason. a. §1870 gives each side 3 peremptory challenges & additional ones if alternate jurors are selected b. Court has broad discretion to allocate these or to permit additional challenges in multiparty actions c. Justification for peremptory challenges: Page 31

i. Allows parties to choose jurors - so parties will be more satisfied with the verdict ii.Party may believe a juror should be disqualified, but can’t do it via challenge for cause (most often it’s a failed challenge for cause). iii.Party may have offended that juror through vigorous questioning; they may now be biased against that party. May be convinced juror is unlikely to vote for you. d. Downsides of it: i. May conflict with ideals of a cross-sectional jury ii.A lot of times its on the basis of stereotypes (hunches) iii.Court imposes limits on this when it comes to race (if party is using these challenges to strike black jurors w/o justification - may violate a right to equal protection) 1. Edmonson v. Leesville Concrete Co. a. Facts: Pl is black. Df used 2 of 3 peremptories to remove black jurors. Pl requested a race-neutral explanation for this. b. Previously, race-based peremptories were not allowed in criminal cases b/c it violates the constitution if govt agency discriminates based on race. Court says this also applies to civil cases w/ private litigants b/c the use of peremptories is a function of the judicial process. Helps the govt get jurors, and also govt gives the authority to do this. c. Rule: Race based exclusion violates the equal protection rights of challenged jurors in criminal as well as private litigation.

I. The Limits of Rational Interference a. The Jury - Can't let trier decide something if not based on substantive law. So the process ensures judgments that comply with substantive law. i. Jury has two roles: factfinding body, and the voice of the community as a temporary, lay democratic institution. Sometimes these roles conflict –we ask juries to make a decision, that’s a lot more than just factfinding. ii.Framing procedural rules that give juries sufficient leeway to perform the political tasks we have set for them w/o irreparably compromising the rationality of verdicts. b. Adversarial Responsibility for Proof - We shift the responsibility of providing proof from the court to the parties. So parties show evidence, and jury decides on the facts. II. Burdens – Parties have specific burdens of proof to show. There are 2 kinds: a. Burden of Persuasion - defines the extent to which a trier of fact must be convinced of some proposition in order to render a verdict for the party who bears it. i. Civil - burden is usually the preponderance of the evidence (more probable/likely than not) 1. criminal - beyond a reasonable doubt b. Burden of Production - Requires a party to produce, to find and present evidence in the first place. i. A party with the burden of production can lose before trial if she fails to demonstrate, among the facts uncovered by investigation and discovery, sufficient evidence to allow a rational trier of fact to find in her favor. ii.Parties will have diff burdens of production on diff issues. Page 32

iii.Satisfying a burden of production means only that a trier might rationally decide the case in one's favor, but not that it must. iv.Reid v. San Pedro, Los Angeles & Salt Lake Railroad 1. Facts: Cow killed on RR. Cow’s owner sues RR by either negligently permitting fence to be broken down and in bad repair, or negligently leaving gate open. Pl doesn’t know how the cow exactly got onto tracks. Statute basically says that if the reason cow got onto the tracks is b/c gate left open, RR not liable. 2. There is no evidence of how cow got onto the tracks. The evidence only shows that it could have equally been either or. Where the same evidence supports equally one inference that renders the defendant liable and another that does not, the plaintiff must fail in satisfying the burden of production. III. Controlling Juries Before the Verdict: Defining the boundaries of jury rationale – control flow of info to jury a. Judgment as a Matter of Law (Directed Verdict or Motion to dismiss) - Rule 50 permits a party, at the close of the other party's case to move for "judgment as a matter of law" b/c other party has not shown anything that proves their burden of production. i. In doing so, party is asking the judge to take the case away from the jury to prevent it from considering the evidence and reaching a verdict. The ground for the motion is that the evidence presented would support only one result. Rule 50(a) -"there is no legally sufficient evidentiary basis for a reasonable jury to find for the party on that issue." ii.Judge can do this w/o a party moving for it. However, you have to make motion now (at close of other party’s case) or else you can’t make a motion for JNOV later. 1. Usually judges will defer it (wait until judgment, then grant JNOV is necessary) a. Gives jury a chance - they might come to same conclusion as judge. If case has merit, good chance jury will see it the same way b. Don’t want to risk appellate court reversing – there’ll be a whole new trial and wastes a lot of time. c. If jury doesn’t return proper verdict, then judge will just issue the JNOV. 2. Mandatory to make this motion at close of all evidence, but it’s a good idea to do so earlier – at close of Pl’s evidence. iii.Issue is when a judge should grant it b/c it always depends on the nature of evidence provided. 1. Facts may not be so cut and dry; some issues: a. Credibility - which witness is telling the most convincing story b. Inference - what conclusions can one rationally draw from undisputed facts? c. Evaluation - do the physical facts constitute, for example, negligence? d. Substance - for example, is knowledge by the Df an element of the claim? iv.Pennsylvania Railroad v. Chamberlain 1. Facts: Suit for negligence that caused death. Witness for Pl inferred there was a collision (this would show negligence) from what he heard, not saw. No one actually saw the collision. Page 33

2. Not a conflicting issue of fact here. Pl’s witness never saw anything, only inferred collision from hearing a crash, which could have been from anything. No one actually saw a collision. Where the proven facts give equal support to two inconsistent inferences, judgment must go against the party upon whom the burden of proof rests. b. Excluding Improper Influences (Law of evidence) - Assure that jurors will consider only information screened through the law of evidence (efforts to insulate jurors from information that might be misleading). Even good faith efforts by jurors to bring their fellow jurors info not filtered through the evidentiary and adversarial screen may result in new trials. c. Instructions and Comment i. [Rule 51] Instructions explain the substantive law that applies to a case, and the judge explains in a sequential way the decisions the jury must reach in a given case (if you find x, then verdict for Pl; if you find y, then verdict for Df). 1. Appellate court will reverse a case if an instruction misstates the law in a material way. 2. Good idea for lawyer to draft and propose jury instructions, and object to other side's jury instructions. In an organized courtroom, this will be handled well in advance on paper. Judge will say in advance which jury instructions he will give. a. Important in appeal - if you put in correct instruction and it was refused, then good appeal case. If you didn’t give the correct law, and wrong law used, then very hard get appeal, unless for plain error. You must preserve an objection to the jury charge. 3. Jury instructions are orally given. Hard task for jury to understand the jury instructions. ii.Comment (or summing up) - judges may comment on the evidence, but have to be careful (so they stay neutral). We don’t want judge to trespass into the jury's autonomous decision-making space (so they’re not influenced unduly) (English courts very blunt & straightforward). IV. Controlling Juries After the Verdict: Defining the boundaries of jury rationale Controls what jury does w/ info, & prevents them drawing “wrong” conclusions. a. Judgment as a Matter of Law (Judgment Nothwithstanding the Verdict) i. Rule 50(b) - Same to directed verdict, but it is requested after verdict. ii.JNOV is merely a delayed ruling on a directed verdict motion. 1. So for it to be a delayed ruling, there must have been a motion preceding the submission of the case to the jury (Rule 50(a) directed verdict). 2. If you don’t make a Rule 50(a) motion before the case is submitted to the jury, you waive the right to make a Rule 50(b) motion after verdict has been entered. b. New Trial - Rule 59 governs the granting of new trials on court’s own initiative (59(d)) or on a party's motion. Rule 59 doesn’t specify the grounds for which a new trial may be ordered, so we look to common law. The common law indicates 2 reasons for granting new trials, flawed procedures (which focuses on the procedure leading up to the verdict), and flawed verdicts (which focuses on the correctness of the verdict itself). i. Flawed Procedures - Examples: 1. Judge may conclude that a lawyer has made an impermissible argument to the jury

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2. On reflection after trial is over, judge may conclude she erred in admitting a piece of evidence or that she gave the jury erroneous instructions. 3. Judge may discover that a juror, although he was properly selected, misbehaved during trial ii.Flawed Verdicts 1. Judge may conclude verdict was unjustifiable. 2. Most common reason: verdict is against the weight of the evidence iii.Diff btwn this and JNOV: 1. JNOV - court saying winner of verdict had no evidentiary support for at least 1 essential element of the claim or defense. JNOV doesn’t result in a new trial, but of an immediate judgment for the loser of the verdict. 2. New trial - Standard lower. Judge may grant it when verdict is against the great weight of the evidence. iv.Rule 50(c) - permits a party moving for JNOV to make (and court to rule on) a conditional motion for a new trial. This alternative only comes to play when a JNOV verdict is reversed or vacated by appellate court. This rule allows a losing party to make all its post-trial motions at once, for trial judge to rule on them while the case is still fresh in his mind, and allows appellate court to consider it all at once. c. Conditional New Trials - Judge may grant a new trial to a specific issue (like damages) on same principle as Rule 59. This is a halfway point, so we don’t have to go through a whole new trial again. i. New Trial limited to damages - Judge must be convinced that whatever lead jury astray on issue of damages didn’t affect the judgment on liability as well. ii.Remittitur and Additur 1. Remittitur - judge orders a new trial unless Pl agrees to accept reduced damages 2. Additur - judge orders a new trial unless Df agrees to increased damages 3. Pl can’t appeal if she accepts the remittitur. Pl had a choice: remittitur or new trial. 4. Constitutionality a. Supreme Court has held that a Pl must get a choice btwn a new trial and accepting reduced damages. You’re not deprived of anything. If you don’t like it, then go for new trial. If you agree to take less than what jury decided, than that's your decision. b. Constitutionality (7th amendment) - SC has held that additur violates the 7th Amendment, but remittitur doesn’t. This is the law in fed courts, but many states permit additur. i. Violates 7th b/c additur involves making an award that no jury has ever made. Remittitur doesn’t b/c it’s merely modifying a decision actually made by a jury. iii.Punitive damages - SC held that due process requires judicial scrutiny of punitive damages awards V. Notes: a. Move for mistrial - If Df feels that jury would never fairly judge (like seeing Pl cry/faint when she sees photos of dead husband). You can do this at any time for any reason that would be a reason to move for a new trial i. If judge doesn’t want to abort the trial at this point, he’ll just tell jury to disregard that Page 35

ii.The action judge chooses to take is discretionary. Appeals court will decide that decision by trial judge was sufficient to cure the problem iii.But if you asked for mistrial and were denied, this might warrant you a new trial (at end of trial). Judge might think, after hearing jury's decision, that he should have granted mistrial, and will grant the new trial. b. If other party has won – what do you want to do? i. Move for JNOV (which is a renewal of previous directed verdict motion) 1. If judge grants JNOV, then judgment for you. ii.Motion for a new trial 1. Renewal for motion of mistrial 2. Even if mistrial motion never made, motion for new trial is an appeal to discretion, and it can embrace legal error, or its obvious jury didn’t follow instructions, or any other reason justice wasn’t done against the great weight of the evidence. 3. If judge grants a new trial - then you go again to trial. A do-over. a. Discretion of judge to grant new trial - b/c if judge has to sit through the whole thing again, then if he grants new trial, then there must be some good reason to trial the whole case again. Maybe justice wasn’t done the first time. c. Even if you won the case, and now the Df are demanding JNOV, you can try to persuade judge that instead of granting it for Df, ask for new trial, or partial conditional new trial.

I. A Losing Party: Adversity a. If a party wins on one theory but loses on others, can they appeal? - depends on relief sought i. If the relief sought under the losing theory was identical to that awarded, no appeal, even if trial court erred ii.If rejected theory would have entitled appealing party to more or different relief - to a different judgment - then you can appeal. b. This Losing Party principle - problem when party has won a judgment, but a theory the trial court rejected can have collateral consequences. An appeal may be permitted. c. Doctrine of mootness - holds that one may not appeal from a judgment when circumstances have changed in such a way that relief is no longer possible. i. Exception: when court decides that even though claim has been satisfied even though there’s an adverse judgment that the case should be reviewed, and so is appealable, because other such cases will come up later. Better to resolve now. ii.Mootness can also result from settlement. Parties who settle cannot appeal. Appellate court will not vacate lower court's decision, when parties that settle request it. d. Class Actions - although formally only named parties represent the class, a member can appeal b/c they objected to the settlement. Page 36

II. Who Raised the Issue Below: Waiver – An appellant cannot on appeal use an argument not made below. An appellee (unless it’s a cross-appeal) can bring up any argument any argument to support the judgment, even if it attacks the reasoning of the court below or insist on a matter overlooked or ignored by it. For efficiency - we want the parties to raise the matters below, so lower court will judge on these arguments. Even if you did argue the point below, court of appeals won’t judge on that issue unless you argue it on appeal again. a. Exception: SMJ - Court can raise this issue at any time even if party doesn’t point it out. b. If appellee lost on a defense on a defense or claim below, he must cross-appeal. Here too, issue must have been raised below in order to use it on an appeal. c. When there has been a change in law between time of trial and the appeal: i. Still can't use the new law, the issue should have been raised below. 1. Exception: However, there is some grace here if the change in law is sufficiently fundamental, but you shouldn’t count on this. d. Exception: Plain error rule - Idea behind it is that a federal trial judge is assumed to know the substantive legal rules, and will act accordingly. But this won’t save you from a failure to object - lawyer needs to keep track! i. The rule is typically invoked where "the error has seriously affected the fairness, integrity, or public reputation of judicial proceedings." 1. Balance the principle of fairness to the parties against the correctness of the result e. In addition to raising a matter at trial level, counsel will usually also have to raise an issue in the appellate court for them to consider it. III. Discouraging Appeals - There is no constitutional right to an appeal in a civil case, but all jurisdictions still give a party a right to at least one appeal. However, they may try to discourage parties from appealing by imposing sanctions. Sometimes sanctions (like penalties) are imposed only if the appeal is meritless or frivolous. a. But some jurisdictions impose penalties if the party appealing loses again in appellate court. Supreme court said this was ok, and discussed several reasons they thought so: i. Expresses the state's interest in discouraging frivolous appeals ii.Compensates appellee (who gets the penalty $) for having to go to litigation again after receiving a verdict iii.Protects integrity of the judgments by discouraging appellants who only appeal so that the other party will settle (rather than going through litigation again) iv.Gives finality to the trial. Tells parties - this is it. Only appeal if there is a serious issue to consider.

I. When a Decision May Be Reviewed- A final decision "is one which ends litigation on the merits and leaves nothing for the court to do but execute the judgment." a. Appellate Jurisdiction and the Final Judgment Rule i. The Final Judgment Rule - Can only appeal after a final judgment. ii.§1291 - contains the final judgment rule, and has 2 functions: 1. Defines the moment at which an appeal is proper (when there is a final judgment) 2. Grants jurisdiction for the appellate courts to hear the appeal Page 37

iii.Rule 54(b) – provides that a court may direct final judgment as to one or more, but fewer than all, claims when there are multiple parties or claims. Otherwise, partial judgments are not final until everything is adjudicated. 1. Liberty Mutual Insurance Co. v. Wetzel a. Facts: Pls sue on civil rights issue. Court grants a partial summary judgment only on the issue of liability. Appellate court said they have jurisdiction to hear the appeal under §1291, which grants this for all final judgments. b. SC said that appellate court did not have jurisdiction. Rule 56(b) says that partial judgments aren’t final until everything has been adjudicated. The exception is when there are multiple claims or parties, then final judgment may be entered for some and not all claims. This was only one claim, so it doesn’t apply. No final judgment, no appeal allowed. c. Rule 56(c) specifically defines summary judgment on the issue of liability are interlocutory. If you give summary judgment, no final judgment until relief is granted. Remedy might be an injunction, which is immediately appealable by statute. But here no injunction granted. II. Timing and the Final Judgment Rule a. Too late - notice of appeal must be filed within 30 days of final judgment i. This is important b/c time limits are jurisdictional - meaning that appeals court has no jurisdiction to hear it if the appeal is too late ii.Trial judge can extend the time who for a party who didn’t receive notice of the judgment in question if no prejudice to other parties results iii.District courts can extend the time up to 30 days o showing of "excusable neglect or good cause" b. Too early - you can only appeal from a final judgment, not earlier. If premature, will be dismissed. i. Usually the problem occurs if there is a verdict, but it's pending a post-trial motion like JNOV. 1. In this situation, party seeking the appeal for an order that would be final but for a post-trial motion, the appeal is held in abeyance until the disposition of those motions. c. Because of issue with determining at what point a judgment is actually final, Rule 58 requires the courts to use set the final judgment on a separate document to make this clear. But, courts don’t follow the rules. d. A judge announcing his intent to apply a judgment, doesn’t constitute final judgment. III. Exceptions to the Final Judgment Rule a. Practical Finality and Collateral Order Doctrine i. Lauro Lines s.r.l. v. Chasser 1. Facts: Cruise ship hijacked, passengers sue. Forum selection clause says forum is Italy. Suit brought in U.S., and Dfs motion to dismiss for lack of PJ. Court denies, and Df sought interlocutory appeal on this. Appellate court said no jurisdiction b/c of §1291; Df has to wait until end of trial. SC granted certiorari. 2. Court’s denying motion to dismiss based on forum-selection clause is not an adjudication on the merits that ends litigation; instead it ensures that it will continue. 3. An exception to §1291 is the collateral order doctrine. This is when claims are too important to be denied review and too independent of Page 38

the cause to require deferral of an appeal until whole case is adjudicated. To fall within this exception and order must: a. conclusively determine the disputed question; b. resolve an important issue completely separate from the merits of the action; & c. be effectively unreviewable on appeal from a final judgment. i. In this case, only consider the third condition. The claim that it would only be sued in Italy is reviewable on appeal from final judgment, so it doesn’t fall within this requirement. b. Interlocutory Appeals on Injunctions i. §1292(a) - allows appeals from interlocutory orders of the district courts "granting, continuing, modifying, refusing, or dissolving injunctions, or refusing to dissolve or modify injunctions." 1. Does not apply to temporary restraining orders (b/c of short duration of the TRO), though it does to a preliminary injunction 2. Supreme Court has held that denial of summary judgment in favor of one seeking a permanent injunction does not give rise to the right to immediate appeal under this section b/c the ruling is simply a step on the way to trial rather than a rejection of the claim on the merits. c. Certified Interlocutory Appeals i. §1292(b) permits a district court to certify interlocutory appeals from nonfinal judgments 1. Judge wishing to do so must certify that the order "involves a controlling question of law as to which there is a substantial ground for difference of opinion" and that "an immediate appeal from the order may materially advance the ultimate termination of the litigation." 2. District court Judge has to certify, and appellate court has to agree. 3. Rarely used; Reasons why interlocutory appeals are not more commonly used: a. Trial courts may not want it b/c they don’t want appellate courts interfering too much b. Appellate courts reluctant to add more cases to their workload c. Both trial and appellate courts have to agree. d. Mandamus i. Writ of mandamus is obtained in an original proceeding in the court that issues the writ, and it orders a public official (may be a judge) to perform an act required by law. 1. Ex: District court declines to try an antitrust case, appeals court issues the writ for judge to try it. 2. If we have a legal issue of great importance, and there are strong reasons to intervene now (that the assertive right will be destroyed, like having to hand over privileged materials), you may have a case for mandamus ii.Since mandamus can be used to get around the final judgment rule, mandamus must be limited. This measure, therefore should be invoked only in exceptional circumstances. 1. Used by federal court to compel an inferior court to exercise the duty it has. 2. Also often occurs when a judge has denied a jury trial. 3. Fed court may also do it to not allow a transfer, b/c if it were transferred, the appellate court would no longer have jurisdiction. Page 39

4. Such a strong statement of disrespect to judge to say he abused his discretion IV. Contempt - Doesn’t come up too frequently, but usually in 3rd party discovery a. Hickman v. Taylor - He was held in contempt, that created a final order, that made the discovery ruling appealable

I. We want our appeals system to work in 2 ways which are opposite to each other a. We want appellate court to find general rules of law in the court system and correct errors made below b. Efficiency - deferring to trial courts i. No interlocutory appeals ii.Doctrines trying to avoid paper shuffling (like harmless error) iii.Practical factor - In federal system, # of appeals very small compared with those reaching final judgment. # of reversals also very small compared with # of appeals. So we want to defer to trial courts since it’s very unlikely that it would be reversed in appeal anyway. II. Appellate courts have devised 3 standards which might apply to your case, reflecting these rules a. One pure issues of law, the court of appeals will not give any additional weight to trial court, and will reverse if they think it was wrong. Based purely on the merit. Clear fixed rule that will apply every time. b. If the ruling below is based on fact, reversal only if ruling is erroneous (Rule 52). c. If the ruling is a matter of discretion, the court of appeals review standard is of use of discretion. Unlikely to reverse - court will take it as an insult, lack of respect by saying that court used its discretion wrongly. d. You might argue that something was determined as issue of law, when it was an issue of fact, or vice versa. This is a common appeal issue. i. If you have a hostile judge to you, you want the issue defined as law, so you can appeal it if judgment against you. If judge is favorable to you, you want it to be an issue of fact, so it’s not appealable. III. Even if decision is reviewable (by final judgment or otherwise), and even if lower court is flawed, the appellate court may not always reverse. a. Law and Fact - if it's an issue of law, appellate court may review, reverse etc. But if it's a question of fact, we must defer to trial court's determination (unless there is something wrong in the procedure). i. Case: Anderson v. Bessemer City 1. Facts: Pl sued for sexual discrimination in hiring. Trial court found that for her based on certain factual findings. The appellate court reversed, saying the factual findings were erroneous. 2. Rule 52(a) says a factual finding is reversible only if it clearly erroneous. It’s erroneous when it’s clear a mistake has been made based on evidence that is very one-sided. However, when there are two permissible views of the evidence, the factfinder’s choice for btwn the two cannot be erroneous (in this case the finding could have been either). b. Harmless Error- (§ 2111) fed courts are forbidden to reverse for "errors or defects that do not affect the substantial rights of the parties." Courts figure this out by speculating on the likely outcome of the case in the absence of error. Page 40

i. Practical problem with harmless error doctrine 1. Bad rule of law as precedent 2. Who's to say what errors are harmless? - Something illegal is left unrighted 3. Party with burden of showing harmfulness is the appellant - Hard to prove

I. Former (Prior) Adjudication - the effect of judgments on subsequent litigation a. Claim Preclusion and Issue Preclusion - serve to bring lawsuits to an end II. Competing Policies a. Fairness/Justice - Right to be heard; Accuracy b. Finality - We want finality in the decision, even if it may not be perfect; Efficiency i. “Use it or lose it” conserves judicial resources by adjudicating whole dispute at one time. ii.“Use it or lose it” also conserves judicial resources by making sure the same issue need only be decided once. iii.Protecting reliance interest of outsiders. iv.Consistency as a value independent of correctness.

I. Claim Preclusion (Res Judicata) - Forbids a party from relitigating a claim that should have been raised in former litigation. By preventing subsequent litigation on the same claim, requires the parties to include related grievances in the same suit. Goals: Efficiency, Finality, Avoidance of inconsistency a. Frier v. City of Vandalia i. Action #1: Pl’s cars towed, sues in state court for replevin. Court denied, saying the city properly towed the cars. ii.Action#2: Pl tries to sue in fed court on 14th amendment – right to due process – that he didn’t have prompt hearing be4 they took the car. Dismissed for failure to state a claim. Pl appealed. iii.Fed court looks at state law to see if 2ndaction would have barred via claim preclusion (full faith & credit). There is claim preclusion here b/c both arise from same core of operative facts. iv.Forcing Pl to combine all claims that arise from same T/O, doesn’t force court to try it all together. Rule 42(b) gives court the right to sever parts of complaint for trial. v.For a claim to be precluded, it must be a claim available at time of 1st suit. Doesn’t necessarily apply only to claim’s ripeness, but also tribunal’s competency (court doesn’t have the power) II. Overview of Requisites a. Valid Judgment - Doesn’t lead to much litigation, b/c narrow reasons for judgment invalid: i. Violate due process - entered without jurisdiction, or if there had been a default ii.If judge was bribed (very unlikely) Page 41

b. After a Final Judgment - Doctrine of claim preclusion requires a prior final judgment. But, this language does not receive completely literal interpretation. i. If appeal pending, still final, but court may want to wait until appeal is decided ii.Presumption that every judgment is final until reversed, so its final for res judicata purposes c. Judgment "On the Merits" - Not all final judgments receive preclusive effect, even though they involve the same claim and the same parties. i. Ex: Action dismissed based on jurisdiction - then you can refile in a second court ii.However, a judgment after a full trial is entitled to a preclusive effect iii.So, between these 2 extremes, where does preclusive effect begin? Courts say that preclusive effects ought to attach only to judgments "on the merits." iv.Saylor v. Lindsley 1. Action #1: Hawkins brought suit on behalf of Corp. Complaint dismissed with prejudice when Hawkins failed to post a bond. 2. Action #2: Saylor, a stockholder, brought action on same transactions & same Dfs. 3. A dismissal on a ground that does not resolve the substantive merit of the complaint not a bar b/c of res judicata. a. Rule 41(b) involuntary dismissal operates as adjudication on the merits (except for SMJ, PJ and venue issues). The policy behind this rule is to protect Dfs from inconvenience of preparing a defense. Dfs never claimed this inconvenience. Also, b/c bond never filed, court in 1st action never reached the point where it would dismiss based on lack of jurisdiction, which wouldn’t have been on merits d. Between the same parties or those in privity with them (their “privies”) - It is possible for someone not formally named as a party to be so closely connected to suit that it is appropriate to treat her as if she were named. i. Searle Brothers v. Searle 1. Action #1: Df sued husband for divorce. Property owned by husband ½; other ½ owned by partnership (his sons). She got the whole property. 2. Action #2: Bros sue mom for ½ of property b/c not owned by dad, but by partnership. 3. No claim preclusion - Bros would only be bound by the 1st action if they were in privity (not parties). Their interests were not represented at the time. Separate ownership, dad acting as individual, and not as rep of partnership. Bros couldn’t have intervened in divorce suit. e. On the same cause of action i. Martino v. McDonald’s 1. Action #1: McDonald’s sues for breach of K, parties settle, but Df lost money b/c settlement was for Df to sell franchise back for far less than actual value. 2. Action #2: Martino sues McDonald claiming K violated Sherman antitrust. Damages were money lost from selling franchise back. 3. The antitrust violation would be a complete bar to McDonald’s action on enforcing the K. If asserted, would have prevented 1stjudgment. Claim preclusion here b/c once judgment had been entered on a claim, all possible issues related to the claim are considered settled even if issue not brought up before. Dfs relied on settlement. Page 42

III. Subdivisions: Bar and Merger a. Merger - a cause of action is merged into a prior judgment awarding damages on that cause of action IV. Consequence - If claim preclusion applies (meet the reqs), the party is precluded from litigating again anything that was litigated or could have been litigated in the former action.

I. Issue Preclusion (Collateral Estoppel) - When an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties whether on the same or a different claim. a. Prevents inconsistent findings when subsequent litigation is permitted. II. Overview of Requisites a. Same factual issue - The legal and factual proposition (like negligence, breach, theft, etc.) i. The party asserting that the other party is estopped, has the burden of proving this. If can't show that issue is the same, then burden of proof not met. b. Same legal context - The procedural setting, including burdens of proof and access to information. If procedural settings not the same, can’t apply issue preclusion (like burden in civil vs. criminal cases). c. Actually litigated and Determined – The facts or legal issues raised must have been actually litigated and determined previously to use issue preclusion. If you don’t know what has actually been litigated, you don’t know just exactly what has been precluded. i. It would be unfair to bind someone to a factual determination that was never actually litigated. If dismissed for procedural reasons, then it was not actually litigated. ii.Policy reasons - We don’t want to set up the rule so that party in Action #1 has to bring up any and all issues possible, so that party in action #2 is not estopped on basis that it was not brought up before. iii.Illinois Central Gulf Railroad v. Parks 1. Action #1: Wife sues RR for personal injuries; husband sues for loss of consortium. Wife recovers; husband loses. 2. Action #2: Husband sues for personal injuries. 3. No claim preclusion – diff cause of action 4. Issue preclusion – applies if causes of action are not the same, but some issues were actually litigated and determined. RR tries to say jury denied husband’s first claim b/c of his contributory negligence, so that’s been litigated and determined. However, court here says you can’t really know why jury decided the way it did, so issue never litigated. d. Essential to the judgment - The issue that was determined in the 1st action, and is being precluded in the 2nd, had to have been "essential to the judgment" of the 1st action. If not, it may not have been properly litigated in the 1st action i. So that we know the issue was fairly adjudged, and sufficient time was spent on the issue ii.If not essential to judgment, will not estop action #2. iii.The party asserting the estoppel has burden to show this. Page 43

iv.The more judgments there are, the less likely it was fully considered the first time, so less likely it will be barred by issue preclusion. e. Overall fairness - Harder to establish issue preclusion rather than claim preclusion b/c of notion of fairness. Whether it was foreseeable that this would turn out to be a big problem in the future f. Between Which Parties? (Mutuality of estoppel) - At common law, this identity of the parties (that they be the same), was a requirement for both claim and issue preclusion. Continues so, but lately many courts have abandoned this requirement for issue preclusion. i. The "Victim" of Preclusion - A party who never had an opportunity to litigate an issue cannot be precluded from doing so. There may be an issue here, however, because this reasoning creates an asymmetrical availability of preclusion. 1. Ex: Wife sues RR for injuries and wins. If husband sues RR for injuries from same event, RR as to the determinations of the 1st suit (for negligence). However, if RR won wife's suit, husband in his subsequent suit would not be precluded b/c he never had a chance to litigate. ii.The Precluder 1. Parklane Hosiery Co. v. Shore a. Action #1: Govt sues Parklane that they issued a misleading statement and govt wins. b. Action #2: shareholders sued for damages based on the same misleading statements. c. Mutuality of estoppel basically said that only when both parties would have been precluded, you could use issue preclusion. No longer the case; don’t need to be same parties. There is issue preclusion for Parklane to say not liable, b/c already decided liable in 1st action. However, if found not liable in #1, shareholders not precluded b/c they never had a chance to litigate it. iii.Replace mechanical rule with a more functional policy driven approach (in the Rest.) 1. A party precluded from relitigating as issue with an opposing party is also precluded from doing so with another person unless he lacked full and fair opportunity to litigate the issue in the 1st action or other circumstances justify affording him the opportunity to relitigate. III. Preclusion against the federal government a. No issue preclusion i. It would be too burdensome on govt as well as court system to require US govt to appeal every loss to avoid preclusory effect ii.Ordinarily, if the district court decided something, that's binding in district court it’s decided in, but not other districts. But if its given collateral estoppel effect, than it would be binding on all courts, and every litigant would use this. That one unappealed decision of the district court would bind Supreme Court, it would become a super-precedent.

I. Boundaries of Claim Preclusion - Reasons for declining to apply claim preclusion: a. Where the parties have expressly or implicitly agreed to allow claim splitting Page 44

b. Where a court has in the first action reserved Pl's right to bring a second c. Where jurisdictional limitations prevented Pl from seeking certain forms of relief now sought. d. Where the judgment is inconsistent with the law; or if Pl should have been permitted to split the claim e. Where there is a recurrent or continuing wrong - Pl can sue all at once, or from time to time f. If public policy favors the claim not to be precluded II. Federated Department Stores v. Moitie a. Action #1: Several Pls brought antitrust action against Federated; suits were dismissed. Some of Pls appealed, but Moitie and Brown decided to file a new action. b. Action #2: After Moitie filed 2nd, appeals overturned 1st action, and those Pls won the appeal. Claim preclusion, but Moitie says should be an exception b/c wouldn’t be fair not to recover when other Pls did; the law changed. c. Held here that failure to appeal dismissal of fed claims precludes you from now taking advantage of intervening change of law. It was dismissed then, you didn’t appeal, so now you're precluded from final judgment in that case. Res judicata exists to give absolute finality to a judgment - can't retry every case just b/c it’s subsequently overturned. Pls made a deliberate decision not to appeal. III. Boundaries of Issue Preclusion a. Where the victim of preclusion could not, as a matter of law, have obtained judgment in the initial action b. Where the issue is one of law and (either) i. Where the 2 actions involve claims that are substantially different -orii.Where there are intervening changes in applicable legal context or otherwise to avoid inequitable administration of laws c. Where there are diffs in procedures followed by the 2 courts, or by factors relating to allocation of jurisdiction d. Where the burden of persuasion has significantly shifted e. Where there would be an effect on public interest; or the 2nd claim was not foreseeable in 1st action; or precluded party never had a adequate opportunity in 1st action

I. Precedent - Given two precedents both equally close on the facts to the present situation what factors will cause this court to give one of them heavier weight than the other? a. Hierarchy of authority within the same jurisdiction b. Hierarchy of the courts (Supreme Court would be on top) – let’s say if neither case is in the same jurisdiction. Supreme court would be more persuasive than a trial court ruling c. Time -more recent precedent usually more persuasive than older cases (b/c of modern trend of the law). i. Exception (rarer) – it’s been the rule for so long, that it should stay the precedent d. History and context of how the case has been perceived in law reviews, public, etc. i. The intrinsic substantive merits of the case (the logic of it) II. Law of the Case - says that parties get a single appellate shot at their legal contentions and that, once they have achieved such an appellate ruling, it continues to govern in subsequent trial and appellate proceedings. If loser doesn’t like the initial appellate ruling, Page 45

his remedy lies in a petition for certiorari to the U.S. Supreme Court. He may no longer argue the question in lower courts. a. A trial judge normally defers to prior rulings in the same case on the trial level, and rulings on a prior appeal on the same case (even if not binding, like if a preliminary injunction), they would be inclined to defer. Court of appeals will be inclined to defer, even if not technically binding, b. As a matter of efficiency, we will tend to adhere to prior rulings in the same case that is law of the case (same case) as distinguished from precedent. III. Judicial Estoppel - courts will invoke judicial estoppel when a party has taken a sworn position in one proceeding, benefited, then seeks a differing position in a diff proceeding in order to win that judgment. a. In determining when judicial estoppel would be applied, 3 elements must always be satisfied: i. Party being estopped must assert a position inconsistent with that taken in prior litigation, and that position must be one of fact rather than law. ii.The prior inconsistent position must have been accepted by the court. iii.Party being estopped must intentionally have misled the court to gain unfair advantage.

I. Full Faith and Credit as a Bar to Collateral Attack a. § 1738 demands that federal courts give the same full faith and credit to state court judgments as those states would give (full faith and credit to fed court judgments has always been assumed). b. Article IV of constitution places the same obligation to state courts to recognize other state's judgments. c. Gap occurs when there's a jurisdictional problem - should the judgment be void b/c of lack of jurisdiction? i. Durfee v. Duke 1. Facts: Dispute over land; don’t know if land is in Nebraska or Missouri, and only state where land is can adjudicate. Nebraska court says land is in Nebraska, so they have jurisdiction, and find for Pl. Df brought claim to quiet title in Missouri. Missouri court says land is in Missouri, but res judicata bars the claim – full faith & credit. Appellate court says Nebraska doesn’t have jurisdiction b/c land in Missouri; so overruled. 2. Nebraska court had already determined land is in Nebraska, giving them jurisdiction. Full faith & credit requires other states (Missouri) to uphold that land is in Nebraska. II. The Reopened Judgment as an Alternative to Collateral Attack a. Claim and issue preclusion combine with requirements of full faith and credit to force litigants and courts to honor judgments. However, they have the potential to work injustice if they perpetuate something fraudulent (like concealment of evidence) in the second case. To prevent, this legislatures have created an opportunity (in limited circumstances) to reopen judgment. b. Rule 60(b) – Motion to re-open. i. Not practically available, but can be used in limited circumstances to avoid injustice. Only use when all other measures are exhausted. Page 46

ii.Courts are not happy after all this has been to, to listen to a motion to reopen the verdict, but there can be under some circumstances 1. If it turns out judge who presided over trial, never were a judge, then we would re-open c. United States v. Beggerly i. Facts: Quiet title on land; If land deeded to private individual before Louisiana purchase, the Beggerly gets title. During discovery U.S. says can’t find any proof in records that it was ever deeded to private person. Years later, found that it had been. Beggerly invokes Rule 60(b) to re-open the case. ii.Rule 60 (b) provides that the court can relieve a party of a final judgment for certain reasons (fraud, misrepresentation, mistake, neglect, etc.), but there is a time limit of one year after the judgment. In this case, the time limit had expired to be able to use Rule 60(b). iii.Rule (d) grants the court power to entertain an independent action to relieve a party from a judgment, but this rule is reserved for cases with grave injustice. Court decided that the facts here do not meet that standard.

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