Civ Pro Yeazell S 2008

8/10/2019 Civ Pro Yeazell S 2008

1/28

CIVIL PROCEDURE YEAZELL SPRING 2008

FINANCING

- Civil Litigation tracks economic development, and population growth.- Damage bell curve ~ $40k, but the small end o the tail !huge awards" accounts or a lot o the$ involved.

- Punitives # 4 th amend. %uestion. &ore than '( compensator) dmgs * probabl) grossl)e(cessive.- +hilip &orris '' : Can t get punitives based on harm D caused to others. ut harm to othersadds to reprehensibilit)./- ver) 1ur) verdict or punitives raises an issue potentiall) appealable to the 2upreme Court.

! 4 th amendment".

O!ti"ns #"$ !%&in' #"$ % (%)suit: *U+S+ uses % ,& $i. s&ste/

. ach +art) pa)s own ee# 3ourl) rate !most commercial litigation nanced this wa)"5. Cost 2haring# 6nsurance, Contingenc) ee !winning clients pa) costs or their case as well

as losing cases". Loser pa)s winner7s ees 8 &an) -wa) ee shi ting statutes - prevalent in civil rights and

public litigation4. 2omeone else pa)s# Legal aid !gov t and private", +ro ono, 9:nit) ;roups ! nance to

urther group goals"

+s le t out Ds le t out- Divorce !can t settle, legal aid won t helpw9L 2@9@G@ 2. 2tate can interpret their state statutes

di erentl).,%t %n P ." t" %v"i. t,is3

. He D# make clients agree not to settle w


2/28

,e St%n.%$. est ,e A(te$n%tive -- 6nglis v 6@@ aking C 55'

6rreparable 3arm to M . possible irreparable harm to M 9ND will probabl) win onthe merits...=>

M will probabl) win on the merits 5. M has a air chance o success on the merits... 9ND...

+reliminar) in1unction won7t

harm O more than it helps M

5. M7s claim raises serious issues on merits and M harmed

more b) re using in1unction than O harmed b) grantingit...9ND

6n1unction in public interest 5. 6n1unction in public interest

Fuentes v S,evin C 5?? - who has right to stove while determining who has right to possess itpermanentl)P

- Need at least notice and an opportunit) or a hearing be ore )our stu is repossessed !onl) idone b) state".

( +arte @.>.=. @emporar) >elie=rder

+reliminar) 6n1unction Final 6n1unction

- onl) i prevents irrep.harm

No notice or hearingre%uired

Not appealable becausever) short duration

!earliest possiblehearing date, withhearing on 5 da)snotice i adversar)re%uestsQ Ru(e eview availableeither under 5' !i

1udgment nal" or5'5 !i other mattersremain to bedetermined".

PLEADING --- In "/!%ti (e G"%(s:

. 2creen out weak cases cheapl) 8 need to learn as much as possible at beginning5. 9llow cases that will win i the) can go to discover) 8 need to eliminate technical barriers

Common Law Chancer) @oda) !combined the old s)stems"

@riers oFact

Huries and Hudges Hudge, no Hur) 2ometimes Hudge, sometimes Hudge and Hur)

+leadings Formulaic (tremel) detailed andactual

No ormulas but ew acts


3/28

Titnesses Live testimon), nosubpoenas ordiscover)

2ubpoenas, somediscover), no livetestimon)

(tensive pretrial discover), subpoenas,and live witnesses

+art)2tructure

Narrow =pen road part) structure

9ppeal =nl) a ter Hudgment Free 6nterlocutor)9ppeals

9ppeal onl) a ter 1udgment - w< interloc.appeal rom prelim. in1unctions !A othere(ceptions"

Antit$ust C"ns!i$% &: to survive 5bE, need some evidence that ordinar) competitors wouldnot do what Ds did.

- ell 9tlantic 5E0# a ect >ule Ra5P Need acts above Bspeculation/ in an) claimP or whendiscover) would be e(pensiveP

Classical statement, which this contradicts# a complaint should not be 5bE ed unless it appearsbe)ond doubt that the plainti can prove no set o acts in support o his claim which would

entitle him to relie . !Conle) v ;ibson, 'J "

F$%u.: must state Bwith particularit)/ what the lie is 8 >ule 'b. !Uurich 6ns. Co. C 5E4". 2aiddoc lied about ood claim, but needed to sa) what the lie was# no oodP =r in ated ooddamagesP =r ood occurred while not coveredP- ' is there to keep raud out o I claims, so )ou can t get punitive on a I claim. Don t want todiscourage Is.

- + .e#ense t" % >2 < # Gse sample orms in F>C+ appendi( !automaticall) =I# rule R4". !Noorm or antitrust though".

A?$/%tive De#enses !non-e(haustive list# Rc"# whether * a . de ., or + must prove it s not

there, decides J0> : >ule does N=@ impose a dut) to amend, as long as what )ou did was ob1ectivel)reasonable at the time.

- Does not appl) to discover). ! d".- Can onl) be sanctioned or .2. documents submitted to the court 8 not or general badbehavior. ! arbie case, 5 E".

RULE >2: !$e-%ns)e$ /"ti"ns: a ect timing. 9nswer in 50 !or E0


4/28

!J"5!b"!E"

ailure to state a claim upon whichrelie can be granted

pre-answer, or in pleadings, or b) motion no

5!b"! "

ailure to 1oin a part) under >ule ' an)time no

@"n(& 'et "ne un.(e "# !$e-%ns)e$ /"ti"ns t,"u', %nn"t $%ise t,e/ in % st$in'

A/en./ents $u(e >=: Bleave shall be reel) given when 1ustice so re%uires/

" no bad aith, 5" pre1udice to O i denied outweighs pre1udice to V i allowed, ?" no undue dela)--- Aquaslide 5'5

Re(%tin' % 7 Ru(e >= :

the claim


5/28

Is it $e(ev%nt "$ $e%s"n% (& %( u(%te. t" (e%. t" $e(ev%nt in#"$/%ti"n3

- &a) be relevant to establish prete(t/# There there s smoke, there s re...- Davis ?05 8 discrimination case. +s want to know i uninvolved third parties complained aboutdiscrimination.- Not relevant, i not related to reason given b) gov t or doing something. - 2te an v Chene) C?0?- Ds wanted to know i 2te an had engaged in ga) conduct , but he was discharged or sa)ing hewas ga), not his conduct.


6/28

Titnesses themselves can get records o what the) themselves said and give it to an)bod) the)want.

Is it !$"te te. )"$7 !$".u t3 3ickman ?50# +s want notes the @ugboat7s law)er made a terinterviewing survivors. - 6 att) was the onl) one who knew who these witnesses were, he would have to release thenames.- 6 the) had died and the +s had no opportunit) to depose them, the) would be able to discoveratt)7s notes.- 6dentit) o ordinar) witness e(ists be ore litigation, so it7s not a work product.

- Law)er7s notes assessing the witness !looks good, will be a good routine date. 2eems morewill ul than negligent.

DISCOVERY PRO6LE9S:

- Don t have to disclose evidence i will be used 2=L LW or impeachment. 6 also used to prove +not hurt, must disclose.

- ven i solel) or impeachment, i related to incident and + re%uests all related docs under>ule ?4, must disclose.

- 6 ail to disclose, and tr) to bring it in later, Hudge can either den), or let it in and tell 1ur) )ouviolated court rules.

- 6 9 gives all his medical bills, but then gets a new relevant one, needs to le a supplementalresponse.- 6 9 doesn t supplement, A wants it later, Hudge should hold hearing to determine i 97s ailurewas harmless. !>ule ? ".

- &a( o 5J interrogator) %uestions, and onl) ask the part) to suit. Can get more w< permissionunder >ule 5E!b"!5"!9".- Wou don t have to admit !under rule ?E" %uestionable stu someone told )ou. =nl) have to

admit )our own knowledge.- 6 admit under >ule ?E, D= 2 N=@ mean it is admitted in later suit. Tant to clear unimportantstu w


7/28

(pert < Docretained in

anticipation o litigation

6dentit), %uali cations,publications,

compensation, whatcases testi ed in,

statement o opinionshe will e(press and

basis or them

2ame Nothing, i )ou resure )ou won t use

him

Can depose i testi )ing or i

privilege is waived.=therwise, need

e(ceptionalcircumstances

(pert < Doc whotreated

name, address!but not bio or report"

2ame 2ame !onl) isupports claim, and

ma) use him"

Can depose i testi )ing, or waived

doc9 L , because report was onl) one availableo +7s mental state shortl) a ter + was terminated. @hompson v 3askell Co. C ?5E. Gnclearwhether e(pert was hired or litigation or not.

- >eport b) non testi )ing e(pert witness N=@ D62C=X >9 L when D could have hired owne(pert, and was tr)ing to get a ree ride o o + s e(pert. Chi%uita 6nternational v olero >ee erC ?5 .

- Court more likel) to grant protective orders !5E!c"" or third parties, than parties to the suit.2talnaker v Imart C ?5'.

RESOLU ION I 1OU RIAL

. De#%u(t 4u.'/ent !but onl) i D got notice 8 +eralta ?44"

5. V"(unt%$& .is/iss%( !can onl) do this once 8 >ule 4 a"

?. A$ it$%ti"n Y Federal 9rbitration 9ct# en orceable in all states. !+olar opposite omediation 8 N=@ negotiation".

- =nl) wa) to attack arbitration Is is with general I tools. 3ow does state de neunconscionabilit)P- Can be aster and cheaper than litigation, but not alwa)s.

4. Sett(e/ent !need a I because Baccord A satis action/ * a:rmative de ense". Hudge canorder settlement con erence under >ule Ec56, but Hudge D= 2 N=@ have to approvesettlements !there are e(ceptions."

9%tsus,it% E(e + C"+ v E!stein ?JR - 2tate court can settle ederal claims, in

addition to state claims......6F the state court thought it was settling the ederal claims, and would give preclusivee ect to those claims.

C"nB.enti%(it& A'$ee/ents - @wo versions#

- Xersion # 2usan sues ;rowco. Hane cannot sa) an)thing to 2usan.- Xersion 5# 2usan7s law)er deposes Hane. Hane cannot respond.

- Courts can onl) en orce i the public interest !need or testimon) in uture cases" is notharmed.


8/28


9/28


10/28

49L ; NE RIAL

4u.'/ents %s % /%tte$ "# (%): >ule J0 =nl) on motion !must do rst be ore 1ur)

verdict" Can do 5d motion a ter 1ur) verdict, i did

st be ore Don t want to consider or st time,

knowing verdict Focus on ade%uac) o evidence >eplace 1ur) s verdict with 1udge s

1udgment >esults in nal 1udgment immediatel) appealable

Ne) $i%(: >ule J' =n motion => 1udge s initiative e ore or a ter 1ur) verdict !weasons or New @rial 6nappropriate >easons or New @rial

- Trong instructions- Huror bribed- rroneousl) admitted or e(cluded

evidence- Xerdict is against the great weight o theevidence

- Hur) misunderstood instructions !+eterson C 44 "- =ne 1uror intimidated or threatened another- Hur) agreed to ma1orit) position, instead o true

unanimit) !not that bad, because i survived 2H could goeither wa)"- Hudge disagrees w< 1ur), when it s a credibilit)issue !Lind, 44?"

FOR9ER AD4UDICA ION @hree @heories 8 Courts decide this as a matter o law w< theor) o their 1urisdiction

. B2ame transaction or occurrence 8 Federal Courts. Focuses on what happened thatcreated lawsuitP

5. Common nucleus o operative act - Focuses more on acts as the) emerged in litigationP?. +rimar) >ight# Cali ornia - di erent--ma)be-- rom transaction or occurrence, but not clearhow.

- 9ll e(ist somewhere between two polar models# =nl) the e(act claim is precluded, or an)possible claim is precluded.

SCOPE OF PRECLUSION: De ned b) the law o the court rendering the rst 1udgment.

--- !9rticle 6X o constitution Y 5R G2C ?R# Federal courts have to pa) attention to state 1udgments"

S" ),%t i# t,e B$st u.'/ent )%s $en.e$e. in % #e.e$%( "u$t un.e$ .ive$sit& u$is.i ti"n %!!(&in' St%te (%)3

2emtek# No preclusion unless the st%te "u$t would have precluded the second claim. =nl)applies where...

. rst claim was brought in ed court under diversit) 1urisdiction 9ND...5. preclusion rule o state where the ed district court sat di ers rom the rule that a

ederal court would use.


11/28

CLAI9 PRECLUSION CL rule. N=@ in rule R. 3arshness balanced b) riendl) rules oramending pleadings.

. same parties, unless in privit) or virtual representation,5. Bsame transaction or occurrence/ or the same evidence would be used to prove

both claims?. Claim e(isted at time o rst lawsuit4. had a air =++=>@GN6@W to litigate !but ailed to do so" - Frier v Cit) o Xandalia

4R4.J. 1udgment on the meritsE. compulsor) counterclaims# Can t raise a claim that would have been a de ense in a

previous suit. >ule ?!a".- F>C+ rule onl) applies to pleadings - !&artino v. &cDonalds 4'0 8 no pleading in suit #consent 1udgment".- common law doctrine o compulsor) counterclaims covers &artino s antitrust claim. !2ostill precluded".- P# Till allowing suit ]5 so undermine the integrit) o the rst 1udgment that it shouldn tbe allowedP !&artino".

ISSUE PRECLUSION: Can t relitigate issue i #

. 29& legal or actual issue in both cases

5. also procedurall) !burden o proo , discover), cross-e(amination" - !term s conte(t 8am 6 a C9 residentP"

?. 9C@G9LLW L6@6;9@ D and determined - i issue could have been raised in rst casebut wasn t, no preclusion

- 2earle bros. not precluded rom going a ter mom, even though the) testi ed in suit .4'?.- &om should have avoided this b) seeking a declarator) 1udgment be ore the rst suit,

then sued e( and bros.- Iovach 23=GLD N=@ +> CLGD D rom tr)ing to re und tra:c ticket, because wasn tL6@6;9@ D. J5 .- stipulation 62 N=@ Bactuall) litigating./ - !WeaZell, re# 3ansberr) v Lee C J'?".

4. to a X9L6D and F6N9L HGD;& N@- 6ncludes 5bE dismissal !assuming there was at least one opportunit) to amend".- C9 supposedl) does not preclude 5bE d claims, but haven t rea:rmed this since 'J5 sonot trustworth).- look to state s preclusion law to see i a 1udgment rendered b) a court lacking s.m.

1urisdiction has preclusive e ect- !;argallo J00# =hio court dismissed ederal claim, not preclusive b) =3 law, so not

precluded rom ederal ct.".J. 22 N@69L to the Hudgment -- i the case didn t turn on the nding, then no preclusion

- 6 a verdict could have been reached b) multiple legal< actual conclusions, then the) don tpreclude. +arks J04. - G@, an) claims addressed and a:rmed b) appellate court will beprecluded. !6n most courts".

E. +art) had ade%uate incentive and opportunit) to litigate issue !i low stakes, ma) not havelitigated to ullest e(tent"


12/28

P%$7(%ne Ru(e C J 0# A %n."ne. Ru(e "# 9utu%(it& 8 a ter lost suit ] , litigating neg.precluded when new + sued.

Can relitigate issue as a D i #

-- stakes in rst case were lower than in second case

-- discover) !or other procedure" was not available in rst case

-- there are prior inconsistent 1udgments : St%te F%$/ Fi$e C%su%(t& C"+ E J^

-- + could have easil) 1oined rst lawsuit, but decided to wait and see how it turned out

Can relitigate issue as a + i #

-- not a part) to the rst lawsuit

REOPENING 4UDG9EN S 8 >ule E0b# &ore likel) i de ault 1udgment. Can be reopened i withina )ear. 6 too late...

... use Bindependent action/ under E0!d"# onl) i prevents Bgrave miscarriage o 1ustice./ ! adaith". G.2. v eggerl) J5'.

COLLA ERAL A AC

2uit ]5 to collect# Can7t contest ] s 1urisdiction i it was FGLLW and F96>LW L6@6;9@ D andF6N9LLW D C6D D. Dur ee J5J.

PERSONAL 4URISDIC ION some places are automaticall) Bhome base/... residence or domicile or individuals, state o incorporation => primar) state o business or a corporation.

Penn"&e$ v Ne5 C 4 --- 62 D F ND9N@ 3 > P

Ru(e *(%te$ %(te$e. : onl) have 1urisdiction over people or propert) within borders attime the suit commences.

3ow a court can have personal 1urisdiction, in +enno)er land#

=ver +ropert)# Constructive notice, 6F attach the propert) at the outset o the lawsuit. =ver +erson# Lives in the state, and is personall) served. =r, i suit or divorce, and one spouse lives in the state. =r, i state law re%uires those Contracting w< in-state citiZens to appoint an in-state agent

or service o process.

PROCEDURAL S UFF --- 1O O C1ALLENGE 4URISDIC ION3

. Do nothing and wait or a collateral attack when the) tr) to en orce the 1udgment !eas),but risk)".


13/28

5. 6nclude in )our sole pre-answer motion 8 can bu) some time to answer ! 0 da)s a ter pre-answer".

?. 6nclude in answer !i )ou make no pre-answer motions 8 i )ou made one, 5b5 is waived".

Inte$n%ti"n%( S,"e C"+ v %s,in't"n C J --- 62 6@ F96> @= D F ND9N@ @= 39X HG>62D6C@6=N 3 > P

2tate o T9 sued 6nt7nat7l 2hoe to collect unemplo)ment ta(es. 2hoe co. is based in &=, but salesmen are running around in T9. !D claims the) are

independent contractors ". Contracts are ormed in &= !salesmen solicit orders, sent to &= or acceptance".

Ru(e: 2tate can have personal 1urisdiction i )ou satis ) the minimum contacts test.2peci c 1urisdiction# claim arose rom minimum contacts * personal 1urisdiction

5 ;eneral 1urisdiction# contacts are so continuous and s)stematic that 1urisdiction isallowed.

=therwise, N= HG>62D6C@6=N even i there are signi cant contacts.

C"u$tHs 'ui.%n e: &ust have su:cient minimum contacts so suit does not o end air pla)and substantial 1ustice. Court suggests that the inconvenience o litigating in a distantorum is relevant.

4!k"! "9# Federal court has same 1urisdictional power as a state court in the state where theederal court sits.

9 Gee v Inte$n%ti"n%( Li#e C E5 --- + >2=N9L HG>62D6C@6=N when I has Bsubstantialconnection/ to state.

Cali ornia resident had insurance rom a @e(as compan), Compan) didn7t pa) and his estatesued in Cali ornia.6nsurance Co. had no salespersons, no o:ce and no other business in C9. 2C sa)s that is =Ior reason above.

1%ns"n v Den 7(% C E? --- N= HG>62. despite I because D did not Bpurposel) avail/ itsel othe orum state.

+9 woman dealt w< D @rustco, moved to FL, D sent notices to FL. Did FL court have 1urisdiction over @rustcoP

=nl) connection was that the person in trust had moved to Florida. Re%s"nin': need act b) D which purposel) avails itsel o privilege o conducting

activities in the orum state.

1%$$is v 6%(7 E4# pstein lends alk $, alk lends 3arris $, 3arris _ &D, pstein attaches thedebt 3arris owes alk.

=I under +enno)er to obtain %uasi in rem 1urisdiction over alk, because his debtor is in &D.!Changed in 2ha er".S,%5e$ *D v 1eitne$ *P C EJ --- Ru(e: minimum contacts test applies to in rem

1urisdiction.

- @ried to establish 1urisdiction based on the presence o stock in the state. !5 o thedirectors had stock there".- 2tock was a contact but not enough to satis ) minimum contacts test.

Re%s"nin' # suits against a person7s interest in propert), not propert) itsel . 2hould use in ersonam rules.


14/28

+ropert) alone can7t support 1urisdiction i it s unrelated to the claim. !no more %uasi inrem 1urisdiction".

+resence o propert) in a state a ects level o contact 6 case is about ownership o that propert), then the presence in the state is enough

contact Hudgment in in rem cases is limited to value o the propert), and actual ndings do not

bind D in later cases.

SPECIFIC 4URISDIC ION # 2tate has personal 1urisdiction o a D onl) or a +9>@6CGL9> claim.- &6N6&G& C=N@9C@2P

"$(. i.e V"(7s)%'"n C 5# NW resident bought car in NW. _ 9U, but got in an accident onthe wa), in =I.

2ued NW dealer, regional distributor in =I or design de ect. =I D= 2 N=@ have 1urisdiction over them.

A "nne ti"n "unts %s % "nt% t ONLY i# it $esu(ts #$"/ %n % t t,%t t,e D

!u$!"se#u((& .i$e te. at the orum state. Ds didn7t know the car was going to =I, so it was not a purpose ull) directedcontact. F%i$ness F% t"$s: --- Consider =NLW i there is a purpose ul contactP !&a)be not, inurger Iing"

1 urden on the D --- !primar) concern"2 Forum7s interest in ad1udicating the case3 +7s interest in obtaining convenient and e ective relie4 6nterstate 1udicial s)stem7s interest in e:cient resolution o controversies5 shared interest o the several states in urthering undamental substantive socialpolicies.

As%,i 9et%( v Su!e$i"$ C"u$t C R# @aiwanese D, who was suing a Hapanese third-part)de endant in C9.

- No 1urisdiction despite contacts, because ailed the airness actors rom TT Xolkswagon.

Did the) !u$!"se#u((& put goods into the stream o commerceP 3ave su:cient contactPGnanswered.

rennan Y ?# mere awareness is enough2tevens# 2heer volume is enough.

=7Connor Y ?# mere awareness is not enough. Need other acts speci call) directed at theorum, or e(ample#

> Designing the product or that market, 2 9dvertising there J stablishing advicechannels or customers

&arketing through distro partner who agreed to be that state7s sales agent.

6u$'e$ in' v Ru.Ke)i K R? --- &ore about how minimum contacts test applies to Is!building on 3anson v Denckla".

&6 person obtained a I ranchise, I * FL corp.


15/28

I sued ranchisee in FL, D had never been to FL. 1"(.in': FL can e(ercise 1urisdiction, passes B airness actors./

&erel) entering into a I with a resident o the orum is N=@ N=G;3. !3ansonP" ut i I is negotiated and primar) state o business or a corporation.

C(%i/s %$isin' "ut "# t,e "nt% ts )it, t,e st%te *s!e iB u$is.i ti"n :

-- \ualit) and nature o in-state activit) satis ) minimum contactsP ! !nt"l #hoe "

-- casual, isolated activities not su:cient ! !nt"l #hoe "

-- chose to conduct activit) in the stateP ! Mc$ee "

-- purpose ull) avail itsel o the privilege o conducting activities in the orum stateP ! %%&%' (anson "

-- claim arise out o those activities !propert) 8 #ha)er , single act 8 Mc$ee "P

-- continuous but limited activit) !such as ongoing business relationship"P ! Bur*er +in* "

-- action purpose ull) directed toward orum state, aim to a ect a particular person inorum stateP ! Asahi' Pavlovich , Be ects test/"

-- website interactive, pro t rom itP ! Pavlovich "

-- F%i$ t" D P @raditional notions o air pla) and substantial 1usticeP ! !nt"l #hoe' treated asseparate element -- Asahi "

-- en1o)s privilege o conducting activities within state, so obligated to answer or in-stateactivitiesP ! !nt"l #hoe "

-- connection with state would reasonabl) anticipate being hailed into court there,Bclear notice/P ! %% &% "


16/28

--@ravel distance or DP 2tate interest in being the orumP V s interest in obtaining relie P6nternational OP ! Asahi "

C(%i/s un$e(%te. t" "nt% ts )it, t,e st%te --- *'ene$%( u$is.i ti"n :

-- 6n-state activities so substantial and o such a nature as to 1usti ) suit against OP ! !nt"l #hoe "

-- properl) served while ph)sicall) present in stateP ! Burnham "

CONSEN O 4URISDIC ION ; C1OICE OF LA

. Consent to Hurisdiction 8 doesn t mean )ou can t sue them in other places, 1ust means )ouconsent to be sued there.

5. Choice o Law Clauses 8 !an) court can appl) law o an) other court"?. Forum 2election Clause 8 &ore restrictive, need some 1usti cation...Could pick a neutral

orum...4. 6nternational 9rbitration Clause# !awards en orced abroad - G.N." 8 need some

1usti cation, might be Bun air./J. Cognovit !Con ession o Hudgment" 8=I w< sophisticated parties, but probabl) not wule 4!k"5 # 6 )ou don7t have enough contact with an) individual state to support general 1urisdiction, but )ou do a lot o business in 9merica, might be able to have general 1urisdictionin a ederal court.


17/28

Pe$7ins v 6en'uet 9inin' C"+ ' - o 5 cases w< Bgeneral 1urisdiction/ applied - and was! 1urisdiction b) necessit)/".

- Can sue +hilippines Co. in =3, because co. president basicall) directed the compan) and did alot o work rom =3.

1e(i "( v 1%(( C '5 --- +urchases and training in @e(as was N=@ N=G;3 or general 1urisdiction in @e(as.

6u$n,%/ v Su!e$i"$ C"u$t C '4 --- !5 o onl) 5 cases where general 1urisdiction e(isted- but%uestionable here"

D served while in state or ? da)s on matter unrelated to claim. Hurisdiction =I, but no

ma1orit) 1usti cation# 2calia# presence in state is alwa)s enough, don7t need to appl) minimum contacts test.

!+enno)er landP" rennan# &inimum contacts test applies. Xoluntar) presence Y service in state *

; N >9L HG>62D6C@6=N - =nl) time this di erence o opinion will matter is i D7s presence in the state is N=@

X=LGN@9>W.

NO ICE

9u((%ne v Cent$%( 1%n"ve$ 6%n7 $ust C 04 !2C, 'J0" 9".e$n A!!(i %ti"n: 9u((%neis % e i (e st%n.%$.+

+robabl) re%uired to conduct at least a cheap search !phone book, internet". 6 the amount at stake is reall) big, might even have to hire a private investigator. >e%uirements o due process shi t with changes in technolog) and cost o notice.

- BNoti ed/ =NLW with back o a newspaper. @hought =I under +enno)er. !@he) had thepropert) # trusts."

- G@# +s wouldn t notice them being taken. 9lso, here the adversar) 62 the person le t towatch the propert).

- &ethod must be > 92=N9 LW C9LCGL9@ D to reach parties, and must a ord > 92=N9 L @6& to appear.

- >easonable risk that notice won7t reach ever)one are acceptable !when others are reached,and can ob1ect".


18/28

D")nsi.e: C"u(. (iti'%te eve$& n"ti e %se+ 2o, F>C+ established procedures or givingnotice. !>ule 4".

Ru(e "/es in seve$%( (%&e$s:

. Taiver o notice as alternative to notice. !&ore time to answer A costs o actuall) serving)ou * carrot and stick".

a. 3ave ?0 da)s to respond to re%uest or waiver.b. 6 )ou waive, get E0 0 8 Can move cases around reel) within the ederal court s)stem.

Venue St%tute: *28 USC >J > - &ore elaborate personal 1urisdiction rules * lesssigni cance o venue rules.

- Corporation resides in an) 1udicial district that has personal 1urisdiction at the time theaction is commenced.

- 9n alien can be sued in an) district !but personal 1urisdiction rules severel) limit this."

Pi!e$ Ai$ $%#t 5 # +lane crash in 2cotland. 2cottish +s sue G.2. makers in G.2. court. 2C#orum non conveniens.

Fact that 2cots law would make it harder or + to recover should not have substantialweight.

!since +s choose the best orum or their recover), i this was true cases would never bedismissed"

FAC ORS or granting #"$u/ n"n "nveniens dismissal#

+rivate actors# !related to individuallitigants"

+ublic Factors# !related to the courts)stem"


19/28

a. There the underl)ing eventsoccurred

b. There the witnesses and ph)sicalevidence are located

c. Comparative overall costs olitigating in the two places

d. Thether it would be possible tocompell witnesses to testi ) in the orumchose b) plainti

e. Languages issues. Thether a 1udgment b) the chosen

court would be en orceable in the placewhere D7s assets are located

a. Choice o law %uestions! amiliarit) and ease with lawgoverning the case"

b. +olic) implications o the casein the more convenient orum

c. acklog in the court chosenb) +

d. urden on the court s)stemand on citiZens who ma) be calledupon to sit on a 1ur)

+iper +rivate Factors# +iper +ublic Factors# Treckage and other witnesses

were in 2cotland records o design, manu acture

and testing are in the G2. asier to 1oin third part)de endants in 2cotland

2cottish law would govern one de endant,G.2. law another - would be con using to a

1ur), court ine(perienced with 2cottish law.

2cotland had the predominant concern withthe dispute. =ccurred in their airspace, thedecedents were all 2cottish or nglish.

COLLA ERAL A AC

D appears les a 5!b"! " motionand loses

ederalsub1ectmatter

1urisdiction

D is bound b) the decision. Dur ee v Duke.

6 D wins 5b motion, + can re le in state court

Dappearsule 5!h", cannot relitigate issue

O de aults ederalsub1ectmatter

1urisdiction

D ma) be bound 8 @he issue is not resolved. ! ?R 8 Chico Co.Drainage District v a(ter 2tate ank, Ialb v. Feuerstein"

etter to 1ust appealPO de aults personal

1urisdictionCan appeal or collaterall) attack. 6 en orcing court nds thatthe rendering court had 1urisdiction, then the) will en orce thede ault 1udgment against )ou, but i the) nd that therendering court did not have 1urisdiction, then the) ll dismissthe prior 1udgment.


20/28

FEDERAL SU64EC 9A ER 4URISDIC ION - limited b) Bwell pleaded complaint rule/and Bcomplete diversit)/

e((-!(e%.e. "/!(%int $u(e: must present ederal %uestion on ace o complaint, and mustbe N C 229>W to the case.

- based on interpretation o 5R G2C ?? , which is created b) congress. @he) could change therule i the) want to.- ut can7t e(pand to hear an) claim that could be heard in a state court - that would be be)ondthe constitution.

L"uisvi((e N%s,vi((e R+R+ v 9"tt(e& ?5 - Tent to 2C, and no one raised issue o 1urisdiction. 2C raised it themselves.

- 9lleging in complaint that D7s anticipated de ense violated ed. law and constitution D6D N=@present ederal %uestion.

3)po# 2ue under a B ederal %uestion/ claim that doesn t e(ist...D could argue doesn t Bariseunder/, or use a 5bE.

Re.ne$ v S%n.e$s ?' - G.2. citiZen, lives in France. 6nsu:cient proo o C9 citiZenship, so N=D6X >26@W HG>62D6C@6=N.

S%%.e, v+ F%$"u7i 4J 8 BCitiZenship/ rom permanent resident alien status de eats diversit)i G.2. citiZen sues alien in same state !or vice versa" but D= 2 N=@ allow resident aliens indi erent states to sue each other in ederal court.

. Fe.e$%( Muesti"n u$is.i ti"n3 !S ?? , 9rticle 666"

0. is + s original cause o action !and not an anticipated de ense" based on ederal

lawP ! ,.,. v Mottle - ?5" 5. Dive$sit& u$is.i ti"n3 !S ??5, 9rticle 666" 8 !>ationale# avoid discrimination against out-

o -staters"

a. C=&+L @ D6X >26@WP ! ach + diverse rom each D - #trawbrid*e "a. +arties must be a citiZens o di erent states

- For S ??5a class actions --- !9llapattah - discussed in class"- N=@ or S ??5d class actions !1ust need bare diversit) or C9F9 8 Bnational

%uestion/ rationale"- Determine citiZenship based on actual in%uir) into part)7s intent. ! (awkins v

Masters arms - J"

- living abroad, a ter previousl) being a citiZen o a di erent state, is not enough.!,edner - ?'"- No Bmoving/# diversit) must e(ist when case led 9ND when removal is

attempted. ! & 4".

b. i permanent resident, other part) must be a G2 citiZen. ! #aadeh v arouki - 4J, S??5!a", 9rticle 666"

c. +artnership * citiZen where ever) partner is a citiZen ! $ru o /ata0u1d. Corporation * citiZen, where...

- it is incorporated, or...- has its principal place o business !which could be bulk o ops, or nerve

center" !S ??5!c""


21/28

5. 9mount in controvers) e(ceed $ JkP !S ??5"#

a. 2houldn7t dismiss unless apparent to legal certaint) that + can7t get this much.b. 3ope or 3G; punitives is not enough. ! 4R-4'".

- Can aggregate i a single + s claim!s" against a single D add up to more than $ J,000.- 6 5 +s, their claims ma) not be aggregated i the) are separate and distinct.- i multiple +s or Ds w< undivided interest, use value o the total interest.- i S ??5a class action, at least one member o the class needs a claim that e(ceed$ J,000. !9llapattah"- i S ??5d C9F9 class action, total claims must be over $J million

Compulsor) Counterclaim can be heard 6 +7s claim is above $ Jk. +ermissive Counterclaim must pack its own 1urisdictional lunch !be above $ Jk". Law is unsettled when claim is under Jk, but counterclaim is or more than Jk.

? A./i$%(t& 4u$is.i ti"n+ !Not important or this class".SUPPLE9EN AL 4URISDIC ION #"$ "in.e$: constit l case or controvers) broader thanparticular claim or de ense.

. Claim is so related to claims in the action that the) orm part o the same case or

controvers). !S ?E , 9rticle 666"- do the claims derive rom a common nucleus o operative actP !;ibbs - J5". Facts must be common and operative. !6n >e 9meri%uest &ortgage - J?" Compare acts necessar) to prove ederal claim, w< acts necessar) to prove state

claim. !9meri%uest". @o be dismissable, resolution o state claim must have N= FF C@ on ederal claim.

!9meri%uest". are claims such that + would normall) be e(pected to tr) them in one 1udicial

proceedingP !;ibbs - J5"

5. G@ i 1urisdiction is based on diversit), non-diverse parties cannot be 1oined and sued inederal court. ! ?E b".

?. &9W dismiss i ...! ?E !c"" >aises a novel or comple( issue o state law

i. &ain issue o the case is under state law, and has not )et been addressed b)state courts. ! #3endr J4"

2ubstantiall) predominates over the claim or claims over which the district courthas original 1urisdictioni. 2tate claims outnumber, and e(ceed in scope, the ederal claims, and have

distinct elements o proo unnecessar) or the ederal claims. !2Zendr)->amos v.First ancorp C J4"

@he district court has dismissed all claims over which it has original 1urisdiction, or =ther compelling reasons, in e(ceptional circumstances 8 !counterclaims messing

up a class actionP"

6 dismissal takes it out o state 2oL, get a ?0 da) window to re le in state court !tollthe 2oL". ! ?E !d"".

ut, can7t toll i claim is against state agenc) which hasn t consented to theprovision. !Gnconstitutional - J "

RE9OVAL - %n $e/"ve i#+++

+ s claim arises under the Constitution or ederal law !well-pleaded complaint - &ottle)",=>...


22/28

6 some do and some don7t, ed. claims are removable, and state claims are at ed.court7s discretion. ! 44 c".

5 Diversit) rules under ??5, but... 3ome- o) @heor) # can t remove i an) D * citiZen o the orum state. !No reason to

ear discrimination".0. ut i + dismisses or settles claims against all non-diverse Ds, can remove i

other re%s met. ! & J". )ear limit# normall), can t remove more than )ear a ter original claim. ! 44E!b"".

i. (ception# 6 case w< non-diverse parties is improperl) removed, 1udgment isvalid i diversit) e(isted when 1udgment was entered. ! 4ater illar' !nc. v 5ewis JR". !=verruled b) $ru o /ata0u1 P"

0. + strateg)# wait )ear, then amend to satis ) S ??5 !$ Jk" or settleGL Ja5.

?. Federal =:cer < 9genc) or 2oldier is sued or acting in the course o dut). ! 445, 445a".

N"n-$e/"v% (e % ti"ns: *#"$ /"$e .et%i( - Q> =: these cases are more +- riendl)# +chooses court, D is stuck with it".

. 2uing >>5. 2uing carrier or receivers?. Torker7s comp4. Xiolence against women act

>emoval +rocess# ! 44E" - File notice w< district court or state court7s district, wGL 50 Hoinder o +arties# >e%uires same tGL R Hoinder o Claims# >emoves all barriers to add l claims. 2orting le t to 1urisdictionalrules < 1udge7s discretion.- >GL ?a allows counterclaims or same tGL ?b allows unrelated counterclaims.


23/28

- >GL ?g, h allow cross-claims against co-parties, initiall) limited to same tule 50" i their claim !or claim against them" * same t


24/28

No preclusion against D who wasn7t in rst suit, so de ective product in suit ] could beN=N-de ective in suit ]5.

>GL 4# can implead a ?+D who ma) be liable or all or part o the claim. C9NN=@ implead orBit s him, not me./. +ersonal 1urisdiction over ?+DP ! 00-mile-bulge through 4k ".

=nl) matters i courthouse is within 00 miles o a state border# usuall) smallnortheastern states.

5. 2upplemental 1urisdictionP !=nl) limits i the claim does not pack its own 1urisdictional lunch`" 6mpleader arise out o the same tule ' D= 2 N=@ re%uire + to 1oin all 1oint tort easors as Ds.- 6 1udgment or ull amount entered against Ds, the) can sue other tort easors or indemnit) inseparate action.- >ule ' D= 2 N=@ re%uire packaging lawsuit in the most e:cient manner. (orcising the Rthc. ghost.

1e(K e$' Di%/"n. S,"!s v V%((e& est Des 9"ines S,"!!in' Cente$ C JE? - Crocodile @ears de enseP

+ * tenant in D s mall. D breached I not to lease to competitors. + sued to en1oin D romrenting to competitor.Competitor was a part) to be 1oined i easible under 'a bi because i + wins, it will a ectcompetitor7s legal rights.>isk o not including competitor# 5 suits, en1oins rom renting, 5 orders to rent. ut, no

1urisdiction over competitor.

- Did not dismiss, because competitor was not indispensible. 2till had all its rights under leaseagreement with D.- Gnlikel) risk o inconsistent 1udgments, because no showing that another court might interpretthe lease di erentl).


25/28

Ru(e: not Bindispensible/ to an action determining I rights 1ust because )our rights under aseparate I will be a ected.

WeaZell# Court was wrong. Could have (ed this problem b) using S 404 to switch venue` 1&!": @rust# 6ncome to 9 or li e, remainder to .

@rustee investing all in high-)ield bonds, which give large income to 9 !but risk)", while principleis eroded b) in ation.

9ction or accounting. not involved. Till be bound b) the resultsP No, not a part).

could sue trustee later, or damages, but trustee ma) be insolvent b) that point.

6 is not 1oined, 7s abilit) to protest his interest ma) be compromised. ! 'a i". 2o 6 ,%s t"e "ine.+

CLASS AC IONS Ru(e 2J CAFA >JJ2.

2pecial Categor)# state law securities actions 8 must remove and dismiss - a anc)orm o ederal preemption.

2tage # getting the class action underwa)

- @wo 6nitial 3urdles# 5?a Y 5?b - what it takes or a class to be a class# certi cation- 5?c - procedure or cert, including notice- 5? - appealing a grant or denial o class cert- 5?g - procedure and re%s or appointing class counsel

2tate 5# running a class action# 5?d - interlocutor) orders !supplements rule E or classactions"2tage ?# ending a class action# 5?e, h - settling a class action, awarding attorne)7s ees >+ Certi cation greatl) increases +7s bargaining power2+ ;reatl) increases the stakes or the D

J+ Conversel), denial o certi cation o ten means that case will evaporate.+ 6 certi cation has ade%uate representation, all members o the class will be bound.

$eMui$e/ents "# 2J%: --- !numerosit) is out there b) itsel , but the other three seem tooverlap".

>+ Nu/e$"sit& !5?a " --- nough persons are in the class that 1oining as individuals isimpractical. Gsuall) 00Y.

2+ C"//"n%(it& !5?a5" --- 3ave to actuall) be a class who share characteristics !that matterunder the substantive law".

J+ &!i %(it& !5?a?" --- Class representative must stand in the same shoes as the average classmember.

+ A.eMu% & "# Re!$esent%ti"n !5?a4" --- Need enough $ to nance the suit, too.J %te'"$ies "# 2J :

>+ &ass production version o >ule '. !5?b " + 9ppropriate notice to the class ma) be directed !5?c5".

2+ =pposing part) has acted on grounds that appl) generall) to the class. !5?b5" Limited to in un tive or declarator) relie . appropriate notice to the class ma) be directed !5?c5"

J+ Claims seeking primaril) $ 6ndividual notice mandator) or members Bwho can be identi ed through reasonable

e ort. !5?c?" !&ullane".


26/28

\uestions o law or act common to class must +> D=&6N9@ over those a ectingindividuals...

...and class action must be best wa) to handle, considering 5?b? actors.

C"//un+ #"$ EMuit& v 9I 1i', S ,""( At,(eti AssHn+ JR4 - 9rgument against cert# 2omeemale athletes like status %uo.

>+ =I because the class purports to include onl) those who are adversel) a ected.2+ 9lso =I because Ds represent the interests o the students who don7t want change.

- ut the Ds have di erent motivations than girls who like status %uo. 3ow to solve thisP9nswer # 6t doesn7t matter i a lot o people like the status %uo - i it7s discriminator), shouldacilitate ghting it.9nswer 5# &ake another D - class o all people pre er status %uo. ut is there an)one read) torepresent this classP

1e%ven v $ust C"/!%n& 6%n7 C J'0 - @ruth in lending class action... 5?b? not satis ed, because D s compulsor) counterclaims against individual class memberswhich would re%uire individual actual determinations. Hudge# unmanageable, so 5?b? actorsweighed against certi )ing the class.

WeaZell# 2mart 1udge could re use supp. 1uris. to counterclaims because the)7ll mess up the classaction, under ?E c.

1%ns e$$& v Lee !3ansberr) * D, Lee is tr)ing to en orce raciall) restrictive I".

2uit ] # Class sues to en orce covenant. 2tipulated that 'JK signed it !necessar) oren orcement" but this was not true. 2uit ]5# D tr)ing to void same covenant. +7s argument# preclusion, )ou were a member o theclass in the original suit.

1"(.in': Not a member o rst class, because that class did not represent D7s interests.6mplication# 9n inade%uatel) represented class member ma) attack the 1udgment

collaterall), on due process grounds.6mplication# 6 )ou are an ade%uatel) represented class member, W=G 9> =GND.

WeaZell# T>=N; to use preclusion. Tas stipulated, not actuall) litigated. ut 2C could notaddress this error o 6L law. 39N2 >>W Y &GLL9N * &agna Carta o modern class action# 3ansberr)# 6 )ou were ade%uatel) represented, )ou are bound.

&ullane# 6t is possible or )ou to be bound despite not getting individual notice.PERSONAL 4URISDIC ION FOR CLASS AC IONS

P,i((i!s Pet$"(eu/ v S,utts C J' ! 'RJ" - !crocodile tears argument ails"

6n I2 court on behal o ??k people owed ro)alties under natural gas well leases. @here arepeople in ever) single state.Class members all got a mailed notice, and could return a orm to opt out. Didn t have to Boptin./ ?k opted out.


27/28

D wants out o I2. 9rgument# in man) cases, no minimum contacts. No 1urisdiction overmembers unless the) opt in.

1"(.in': Don t need minimum contacts to bind the class` ut, absent +s need at least anopportunit) to opt out.- 3olding onl) covered 5?b?. That about b and b5P >ule 5?c5a - Court ma) direct appropriatenotice to the class.

Th)P Class actions a ord protection that substitutes or minimum contacts#. Don7t have to travel5. 9de%uate representation is guaranteed?. >ule 5? guarantees members some orm o notice and opportunit) to opt out o the class4. Courts rarel) allow counterclaims against class members, so unlikel) to result in $

1udgments against members.

Limitations# @his applies to +L96N@6FF CL922 2, but court did not rule on whether it applies toD F ND9N@ CL922 2.

&ullane suggested +s who couldn t be ound or noti ed are still bound, i the attempt to noti )was reasonable.

C(%ss A ti"n F%i$ness A t - e%sie$ t" 'et (%ss % ti"ns int" #e.e$%( "u$t:

New de nition o diversit) 1urisdiction, onl) or class actions. ! ??5d".o are Diversit)# 6 9NW + is diverse rom an) D, that is enough. ! ??5d59".o 9ll claims must add up to over $J million. ! ??5d5".o Discretionar) remand. ??5d?o &andator) remand. ??5d4.

N= B3ome o)/ >ule# special removal provision ! 4J?" which onl) applies to C9F9 classactions.

2ettlements regulated b) new statute# - J.

>emand provisions# 6 case has a bunch o issues connected to particular state, it should be triedin a state court there. m)sterious unlitigated %uestions# That i ?easonable e(penditure o hours

- That i )ou are suing or an in1unctionP Fee shi ting statutes 9:nit) group unding


28/28

- Law)er Y class representative are simultaneousl) determining settlement terms, and law)er see, b) themselves...- Collusion between + att) and de endantsP 3ow to protect class against shad) settlementsP

>ule 5?e - settlement re%uires#

. Court approval that it is air, reasonable and ade%uate, a ter a hearing.

a. Court ma) re%uire another opt out opportunit), be ore binding 5?b? classmembers.

5. >easonable notice to all class members who will be bound.?. +arties seeking approval must le a statement o an) agreements made in connection with

it.4. 9n) class member ma) ob1ect...

a. ob1ections can7t be withdrawn without court approval !so )ou can7t ob1ect, hopingto be bought o ".

b. +ro essional ob1ectors do this, on behal o class members, to tr) to raise the valueo the settlement.

5?e - 9ttorne)7s Fees - re%uires# " Notice 5" 3earings ?" Findings 4" =pportunit) to ob1ect toees

C"u!"n sett(e/ents ! 5d"# - value or ee purposes * what7s actuall) collected, not the ma(value o all coupons.

Re'u(%t"$& Aut,"$ities ! J"# !connected to idea that class actions pla) a role in gov7tregulation".

D F ND9N@ has to tell appropriate regulator) authorities about the settlement. =therwise, settlement will not have preclusive e ect

A/ ,e/ P$".u ts In + v in.s"n C E0 - 9sbestos Case - 2hould settlements like this beallowedP

+ att)s had man) individual cases, with individual plainti s, with a lot o individual de endants.

Ds wanted to set up a und to settle ever)thing, but wanted to do it in a wa) that would bind allthe people out there who hadn7t sued )et. Tanted to create a class action o ever)one e(posedto asbestos who had not )et led a claim.

SC s%i. NO . 9de%uac) o representation. Con ict between those currentl) suing, and peoplewho might one da) sue. Current +s want $ now, later +s would want the und to be big andprotected rom in ation.

WeaZell# Could save this settlement - locate separate counsel to negotiate on behal o the new

class. a. &ight have worked, but might have killed the settlement i the) couldn7t agree onone.

Documents

Civ Pro Yeazell S 2008