Civil Procedure Long Outline

Complex Joinder

Joinder

Rule 19 Required Joinder

Torrington Company v. Yost: non disclose: rule 19(a)(1)(b) and 19(b): indispensible party. Dismissed

Interpleader

Statutory Interpleader (29 U.S.C. § 1335): Compelling Multiple Parties to Litigate

Rule 22 Rule Interpleader: Compelling multiple parties to litigate

Intervention

Rule 24 Intervention: Party Trying to Get In

End Chapter Notes

Class Actions

Rule 23: Class Actions

Hansberry v. Lee (S.Ct. 1940): not bound by class action where not adequately represented in the earlier suit

In Re Teflon Products Liability Litigation: 23(b)(3) certification.

Supplemental Jurisdiction

Exxon Mobil Corp v. Allapattah Services: amount in controversy doesn’t contaminate diversity for claims under supplemental Jurisdiction of court

Discovering the Facts

Discovery Tools

Rule 26 (discovery Generally)

Discovery Generally

Informal Investigation

Rule 11: must make reasonable inquiry prior to filing complaint.

Rule 4.2: no talking to represented Parties

Gaylord v. Homemakers of Montgomery: informal discovery: talking to other party’s/witnesses

Scope of Discovery

Rule 26(b): Scope of Discovery: may obtain discovery regarding any matter (not privileged/protected as prep for trial) which is relevent to the subject matter involved

Scope Of Discovery Briefly 26(b)(1)

Objections To Discovery 26(b)(5)

Attorney Client Privilege (restatement 68)

Asserting the Attorney Client Privilege

Work Product

26(b)(3): Materials Made in Anticipation of Litigation

Hickman v. Taylor: creation of work product protection: codified in 12(b)(3)

Expert Work Product

Expert Work Product: Experts 26(b)(4)

Pleadings and Privileges Procedurally

Steps to pleading Privilege and Work Product Protection 26(b)(5)

Pretrial Conferences; Scheduling; Management (rule 16)

Rules 4, 16(b) and 26(a)(1) and 26(f) give timeline

Flores v. Southern Peru Copper Corp: delay required initial disclosures

End Chapter Notes

Steps of Suit Generally

Required Initial Disclosures

Required Initial Disclosure 26(a)

(1) Parties must begin with mandatory planning conference under Rule 26(f) and 26(g)

Initial Disclosures: 26(a)

(2) Timing of Disclosures 26(1)(c/d)

Discretionary discovery

Generally

Interrogatories: rule 33

Requests for Admission: if admitted, don’t adjudicate: 36:

Document Requests/electronically stored info, tangible things, entering onto land: rule 34

Medical Examinations: rule 35

Sacramona v. Bridgestone / Firestone. Inc. (Mass 1993) –Physical Examinations denied bc connection too attenuated

Electronic Discovery

Electronic Discovery: Rule 26 and 34

Zubulake v. UBS Warburg L.L.C. balancing test for ESI to shift costs

Deposition

Depositions Rule 28, 30, 31, 32 45 (subpoenas)

Rule 32: Use of Deposition: evidence or contradiction

Controlling Discovery and Discovery Abuse

From Chadusma v. Mazda Motor Corp (what we would do): severity of sanctions (default judgment) too sever: 26(g) sanctions were rewuired, but too severe

Ensuring Compliance with discovery rule 26(g) and rule 37

Rule 37: discovery Sanctions

rule 26(g): sanctions

Discovery Chart

What Law Applies

Rules of Decision Act 28 USC 1652

Constitution Article VI: Supremacy Clause

Swift v. Tyson (1842): Federal Courts applying all common law (OVERRULED)

Black & White Taxicab & Transfer Co. v. Brown & Yellow Taxicab & Transfer Co. (1928): Federal common law applies in diversity case when there is no state statute but is state common law (Overruled)

Erie R.R. Co. v. Tompkins (1938): Federal Courts apply state substantive statutory/constitutional/common law

Ascertaining State Law: What is the Law of the state?

State Supreme Court Predictive Approach: Ascertain how Supreme Court Would hold Today?

Uniform Certification of Question of Law

Which State Law Applies? Choice of Law

Klaxon v. Stentor Electric Mfg. Co. (1941): federal courts apply the state choice of law rule in which they sit

Specific Federal Common Law: in disputes between states, foreign police, other matters of specific federal concern

United States v. Standard Oil Co. of California: soldier hit by truck: apply federal common law for uniformity

Substantive v. Procedure: When to apply Federal/State Law?

Guarantee Trust Co of NY v. York: Outcome determinative Test: didn’t afford recovery if made unavailable by state nor can it substantially affect enforcement of the right given by the state

Outcome Determinative Test: ifapplying federal procedural rule instead of state would affect the outcome, federal court should use state rule

Byrd v. Blue Ridge Rural Electric Cooperative, inc: added third test: apply a balancing test for state policy and federal interests where substance/procedure test and outcome determinate test are not clear. SC NEVER RETURNED

Rules Enabling Act of 1934: 28 USC 2072

Two Tracks of the Erie Doctrine (ignore this, Nathalie makes no sense)

Hannah v. Plumer: Split the Erie doctrine into two tracts

Erie Doctrine Under Hannah: Final Overview

Assessing Direct Conflicts with a Federal Rule:

Dispositions Without Trial

Jury Trial

Appeal

Preclusion: The Force and Effect of Final Judgment

Complex Joinder

Joinder

Rule 19 Required Joinder

Rule 19: Required Joinder of Partiesabsence would prevent complete relief, impair rights of absent party “as a practical matter” or leave a risk of inconsistent obligations: remedy: join if able.
19(a): Persons to be joined if feasible
(1) Required Party
Person who is subject to service of process and whose joinder will not deprive the court of subject-matter jurisdiction must be joined as party if
(A): in their absence, court cannot accord complete relief among existing parties OR
(B): that person claims interest in relating to the subject of action and is so situated that disposing of the action in persons absence may:
(i) as a practical matter impair/impede the person’s ability to protect interest; or
(ii) leave an existing party subject to a substantial risk of incurring multiple/inconsistent obligations because of the interest
(2): Joinder by court order
if person has not been joined as required, the court must order that person to be made a party: person who refuses to join as P may be made either a D, or, in proper case, an involuntary P
(3) Venue
if a joined party objects to venue and joinder would make venue improper, the court must dismiss that party
19(b): When joinder is not feasible: Party not subject to service of process and/or territorial jurisdiction (venue/personal) or joinder would deprive court of subject matter jurisdiction: court makes determination below: can proceed “in equity and good conscience”
if person required to be joined if feasibly cannot be joined, court must determine whether, in equity and good conscience, the action should proceed among existing parties or should be dismissed.
Factors if Indispensible: indispensible party: 1.necessary, 2. cannot be joined, 3. court determines cannot proceed in equity and good conscience (factors: prejudice to existing parties; if protective provisions in judgment can lessen/avoid prejudice; if judgment would be adequate; whether P would have alternative remedy)
(1) Extend judgment rendered in absence might prejudice that person/existing party
(2) The extent any prejudice could be lessened or avoided
Protective provision in the judgment,
Shaping the relief or
Other means
(3) Whether a judgment rendered in person’s absence would be adequate and
(4) Whether the P would have adequate remedy if the action were dismissed for nonjoinder
19(c): Pleading the reasons for nonjoinder: when asserting a claim for relief, a party must state:
(1)the name, if known, of any person who is required to be joined if feasible but is not joined; and
(2) the reasons for not joining that person
19(d): Exceptions for Class Actions: this rule subject to 23

Torrington Company v. Yost: non disclose: rule 19(a)(1)(b) and 19(b): indispensible party. Dismissed

FACTS: P, Torrington Company, employed D, Yost, for 12 years. Yost signed contract not to disclose Torrington’s trade secrets. In 1990, Yost began working for another bearing manufacturer, INA. Yost moved to dismiss because, INA (new employer), was a required party under Rule 19 and needed to be joined.
QUESTION: In federal Courts, is nonjoinder of an indispensible party to the lawsuit grounds for dismissal?
HOLDING: INA’s joinder (under 19(a)(1)(b)) would destroy the court’s diversity jurisdiction.
Thus joinder is not feasible. Analysis of the four factors set out in Rule 19(b) required that action be dismissed.
Under FRCP 19, failure to join in an indispensible party will result in dismissal if the non-joinder results in prejudice to that party or an existing party and prevents the court from issuing a full and fair judgment.
They would be prejeduced bc it would prevent Yost from working for 18 months

Notes

Three questions you gotta ask
19(a): are they necessary?
Feasibility?
Subject matter jurisdiction
Personal jurisdicition issues
Venue
Indispensible (19(b))?
If not joining would fuck up suit
Joint Tortfeasor are not required party bc P remedy not inadequate,
Can sue independently
D can sue for contribution
19(c): if it’s a required partydon’t joingotta say why in complaint
19(b): indispensible: if required but can’t be joined look at these factors
1. prejeduce to missing party/existing party
INA might lose employee
Yost be whipsawed
2. avoiding prejeduce by protective order/shaping relief/other matters
whatever it can do to limit
3. Adequacy in person’s absence
INA wouldn’t be subject to suit. Won’t be bound by decision
4. Adequate other remedy
if could go to state court. Unsure if possible
Rule 19: only if party’s ask for it
Go back to rule 12 for this.
Not in initial response, but basically can’t do it after judgment. I
A: in a pleading allowed or ordered under rule 7(a)
B. by a motion under rule 12(C)
C. at trail rule 12(h)(2)
Feasibility of joinder
If they have PJ
If joinder doesn’t deprive PJ
If person being joined objects to venue, then could have a problem too

Interpleader

Statutory Interpleader (29 U.S.C. § 1335): Compelling Multiple Parties to Litigate

28 U.S.C. §1335: Statutory Interpleader

(a) District court shall have original jurisdiction of any civil action of interpleader or in the nature of interpleader filed by any person, firm, corporation, association, society having in his custody or possession money or property of the value of $500: if…
(1) 2+ adverse claimants, of diverse citizenship (in 1332(a) and (b)) are claiming or may claim to be entitled to such money or property… and if
(2) the Plaintiff has deposited such money/property or has paid the amount of/the loan/other value of such instrument or the amount due under such obligation into the registry of the court, there to abide the judgment of the court,
or has given bond payable to the clerk of the court in such amount and with such surety as the court/judge may deem proper, conditioned upon the compliance by the P with the future order of judgment of the court with respect to the subject matter of the controversy
(b) such an action may be entertained although titles or claims of the conflicting claimants do not have a common origin, or are not identical, but are adverse to and independent of one another

Note

Federal courts have jurisdiction over “any civil action of interpleader or in the nature of interpleader’ where:
Property worth $500 or more
There is general diversity (minimum) (under 1332) among claiments
Minimum: 1 of claimants from different state as others
Plaintiff deposits money/property/Bond into the court

Rule 22 Rule Interpleader: Compelling multiple parties to litigate

Rule 22: Rule Interpleader

(a) Grounds:
(1) by a plaintiff: Persons with claims that may expose P to double/multiple liability may be joined as D’s and required to interplead. Joinder for interpleader is proper even though…
A
Claims (of claiments) or the titles on which their claims depend,
lack a common origin or
are adverse and independent rather than identical OR
B: P denies liability in whole or in part to any or all of claimants
(2) by a Defendant: defendant exposed to similar liabilities may seek interpleader through a crossclaim(13g)/counterclaim(13a/c)
(b) relation to other rules/statutes
Supplements, not limits, joinder of parties allowed by rule 20.
In addition to 1335, 1397, 2361. An action under those statutes must be conducted under these rules.

Note

persons having claims against P may be joined as D’s and required to interplead when P is or may be exposed to multiple liability

Source / §1335 / R-22
Subject matter jurisdiction / $500 in controversy, minimum diversity among claimants (pair of claimants from different states). / Other statute to get jurisdiciton-§1331/§1332
$75,000 with complete diversity (no claimant has same residence as interpleading party) here we look at interpleader as plaintiff, and claimants as defendants
Personal jurisdiction / Nationwide service of process that establishes personal jurisdiction (actually different statute number but use it when using §1335) / Ordinary personal jurisdiction rules
Venue / Where any person resides / Ordinary approach
deposit / Money/property must be deposited to court / No requirement

Notes

stake holders can interplead: get binding judgment on all claiments to allocate stake
then can’t get sued by other claments
or stake holder can try not to pay at all
rule: need 75,000 and complete diversity
statutory: $500 and minimal diversity
gotta deposit money in court

Intervention

Rule 24 Intervention: Party Trying to Get In

Intervention 24: Getting in to case
(a) Intervention of Righttimely motion court MUST grant; by statute or because: (a)interest in property/transaction; (b) disposition of action may “as a practical matter impair or impede’s applicant’s ability to protect interest” and (c) applicant’s interest not represented
on timely motion, the court must permit anyone to intervene who
(1): is given an unconditional right to intervene by federal statute
(2): OR
Claims an interest relating to property or transaction
And is so situated that disposing of action may (as a practical matter) impair or impede the mover’s ability to protect interest
UNLESS existing parties adequately represent that interest
24(b) Permissive Interventionallowed when statute provides/there is a “question of law or fact in common” Court: Look if intervention will unduly delay or prejudice parties
(1): in general: on timely motion, court MAY permit anyone to intervene who:
(A): is given unconditional right to intervene by federal statute
(B): has a claim/defense that shares with the main action a common question of law or fact
(2): by a government officer or agency: on timely motion, the court may permit a federal or state governmental officer or agency to intervene if a party’s claim or D is based on
(A) a statute or executive order administered by the officer or agency OR
(b) any regulation, order, requirement, or agreement issued or made under the statute or executive order
(3): delay/prejudice: in exercising discretion, court should consider whether intervention will unduly delay or prejudice the adjudication of the original parties rights
24(c): notice of pleadingmotion served/say grounds/pleading of claim/defense
motion to intervene must be served on parties as provided in rule 5. Must state grounds of intervention and be accompanied by a pleading that sets out claim/defense for which intervention is sought

Notes

same thing as 19, but people trying to get in
requirements
every time you file a motion
1. Motions: 1 page thing about what you’re doing
2. Certificuit of service:
3. Memorandum brief: the crux of it, local rules, what you argue about
4. Proposed form of order:
order you want judge to sign
for 24 only
pleading copy: lay out how you’re gonna plead things
request for oral hearing (split)
for evidence
might need signed depositions
or exhibits
Michigan Law Case: Grutter v. Bollinger: allowed to interplead: as matter of right
Met all requirements under 24(a)(2)
Minority students trying to intervene to defend affirmative action
24(1): impair rights as practical matter
how to get in under 24(1)
unconstitutional right
dispising of action as practical matter impair
interest relating
unless other ppl will defend
here: Univ. of Michigan will defend
but maybe different defenses
students want to defend to make up for past discrimination, university may not bring it up bc don’t want to admit
results in more work for judges/clerks so may fight
if denied: (24(a)
permissive intervention (24)(b)
but still need subject matter jurisdiction for court, can’t destroy diversity

End Chapter Notes

rule 19: situations in which a person who has not been made aparty should participate in litigation to assure a just resolution of the dispute
19(a): absantees should be made parties to action if their rights might be adversely affected or if dispute between original parties cannot be fully resolved w/o their participation
19(b): guidance in deciding what to do if absentee should be joined 19(a) but cannot be made a party due to jursidicitonal/venue prroblems
list of discretionary factors to allow proceed/dismiss based on “need for just adjudication
rule 24: authorizes persons not joined in a suit to move to intervene. If motion is granted, the intervenor becomes a party.
24(a): non-party has right to intervene if she has an interest in the transaction and that interest may be impaired unless allowed to join
may be denied if intrest is adequately represented by exisiting parties
24(b): authorizes permissive intervention if the applicant’s claim/defense involves a question of law/fact that is also raised by main action. Judges have wide discretion
28 USC 1335/ rule 22: interpleader: proceeding that brings all claimants to particular funds/property before cour in single suit in order to avoid multiple suits/inconsistent judgments. An
brought by the stakeholder, the party holding the disputed property/fund: naming the contending claiments to the property/fund as D’s
1335: only need minimal jurisdiction, low amount in controversy, and nation wide service

Class Actions

Rule 23: Class Actions

Class Actions 23
(a) Prerequisites : 1+ members of class may sue/be sued as rep parties on behalf of all members only if…
(1) Class so numerousjoinder of all members is impracticable
(2)Common questions of law/fact in class
(3) Claims/defenses of Reps are typical of claims/d’s of class and
(4) The representative parties will fairly and adequately protect interest of class
Types: Either 23B(1A/1B/2/3). Satisfy 23(A) and 1 of following
23(B)(1): prosecuting separate actions create risk of…
23(B)(1)(A)Inconsistency:varying judgments make difficult for D
inconsistent/varying adjudications with respect to indi class members that would establish incompatible standards of conduct for party opposing class
23(B)(1)(B)Limited Fund: difficulty as a practical matter
Dispositive/impair others P’s ability to protect interests
adjudications with respect to indi class members would (as a practical matter) be dispositive of interest of other membersnot parties to the individual adjudications OR
would substantially impair/impede their ability to protect interest
23(B)2): injunction: want final injunctive relief/declaratory relief (not money)
party opposing class has acted/refused to act on grounds that apply generally to class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole
23(b)(3): common questions predominate/superiority of C.A. v. factors
predomination: common questions of law/fact predominate over questions affecting only individual questions AND
superiority: class action is superior to other methods for fair/efficient adjudication
Factors
(a) Interest in individually controlling actions
(b) Extent/nature of litigation already commenced
(c)Desirability of concentrating litigation in this forum
(d) Difficulties likely in managing class action
Procedure 23C
Certification order 23(C)(1)put order in early, define class, can alter order
(A) Time of Issue: at an early practicable time after a person sues or is sued as a class representativecourt must determine by order whether to certify the action as a class action
(B)Defining class: appoint council: an order that certifies a class actionmust define class and class claims, issues, defenses, and appoint council
(C)Altering/Amending the Order: order can be conditional and may be altered before final judgment
Notice: 23(c)(2)
(A) 23(B)(1)(a and b)+23(b)(2) Classes: court may direct appropriate notice
(B): 23(B)(3) Classes:classes: need best notice practicable under circumstances: including
individual notice to IDed members through reasonable effort:
Notice must clearly and concisely in plain, easily understood language
i. the nature of the action
ii. The definition of the class certified
iii. The class claims, issue, or defenses
iv: that a class member may enter appearance through attorney if so desires
v. Exlusion: Court will exclude any member who so requests
vi. the time/manner for requesting exlusion and
vii. The binding effect of a class judgment on members under rule 23(c)(3)
Particular Issues 23C4
When appropriate, action may be brought or maintained as a class action with respect to particular issues
Splitting classes into smaller groups
Subclasses 23C5
When appropriate, class subdivided and each treated as class
23E Settlement
1. Settlement needs to be approved by court to be fair, and reasonable
2. Class member can object
3. You can opt out
23(f): appeals
14 days to apply, interlocutory appeal for class ceritiffciaiton

Notes