CIVIL PROCEDURE: Objective is to help underlying law work.
FULL FAITH AND CREDIT (Art. IV): Constitution provides that each state must give full faith and
credit to judicial proceedings of another state. Exceptions: full faith/credit does not preclude inquiry into
validity of [pers and s/m] juris of court –no full faith/credit if no juris (Pennoyer). Similarly, no full
faith/credit if judgment procured fraudulently (equivalent to lack of juris).
GETTING THE D INTO CT: D need not appear in ct unless each of the following requirements. D can
challenge suit based on lack of any one of these requirements. But if D just doesn’t appear at all, risks
having to pay default judgment and losing chance to litigate on merits if ct ends up finding no prob w/
juris, notice, etc. (of course if ct found any requirements lacking, default judgment would be
invalid).Requirements: p/j, notice, service, venue, s/m (fed ques, d/j, or suppl), joinder.
1) PERSONAL JURISDICTION (const + stat): Any court (state or fed) can exercise pers juris
over D only if auth by statute and in compliance with due process. Due process requires that a
court in one state must have certain power over a D before D must answer in a lawsuit. Because
each state is sep sovereign, juris/pwr of process and other state laws end at state lines
(federalism). But defense of lack of pers juris is WAIVED unless asserted by motion before
answer or in answer itself – see challenges to p/j below!
a. HISTORICAL BASES (Pennoyer)
i. Citizenship: in forum state
ii. Presence in forum when served:
1. In Personam: Suits to determine personal rights/obligations of parties
(K, tort, etc). Need actual physical presence of self / formally appointed
agent, or minimum contacts. If have one or other, get pers juris and
judgment is portable / enforceable anywhere by full faith/credit.
a. Transient juris: Transient/temporary presence alone, no matter
for how short a time, is enough to assert personal juris over D
(Burnham and Grace note case where D served while flying over
state). Usually, transient juris only applies to individual Ds –
little law applying to corporations (say where CEO/agent is
temporarily in forum) – prob no pers juris b/c after all, Int’l Shoe
developed min contacts to deal w/ very prob of defining
corporate “presence.”
b. Minimum Contacts: Nonres “presence” enough for specific
(and sometimes general) jurisdiction – see below.
2. Quasi in Rem: Suits to determine personal rts/obligations, but where P
attaches D’s property (tangible or intangible/like debt which follows
debtor) as security for judgment (Harris). Need presence of prop +
attachment at outset of case (seizure/garnishment) + min contacts to
assert juris(Shaffer). Because cause in no way related to property,
presence of property alone is insufficient (Shaffer overturns Pennoyer
which said presence of prop + attachment is enough for pers juris in
quasi in rem suits). Limits to quasi in rem juris: 1) can only have juris for
recovery up to value of property and 2) judgment is not portable (if
injury more than value of prop, must sue again, get in personam juris,
and re-prove facts to recover rest) – so prob only use if can’t get in pers
juris b/c of long-arm statute limits.
3. In Rem: Suit about property itself (suits over title). As long as D owns
prop in forum, usually an easy case. Even if D a nonres, cause arises out
of property (min contacts) so only need to attach prop at outset of case.
Only time might be difficult is if prop is mobile (i.e. car) and can be
moved to forum without D’s knowledge – then might need to prove more
contacts before asserting pers juris in a suit to quiet title to D’s car.
iii. Consent: voluntary appearance (why there is juris over Ps for countercl). Note: if
D appears specially only in state ct (no special appearance in fed ct – need to use
motions) to contest juris, there is no consent except consent to play by rules of ct/
let ct det whether it has juris→if D wins, can leave but if D loses, must stay and
answer to suit (b/c means ct has determined it already has juris / no consent
needed). (Ins Corp v. CBG). Ct always has juris to determine whether it has juris.
1. Forum Selection Clauses in Ks: Can be evidence of consent to juris (so
no need for min contacts) but cts may scrutinize for
reasonableness/fairness (compare Bremen – where two businesses so
equal bargaining strength, with Shute – where forum selection clause in
fine print, ind. vs. corp/unequal bargaining strength. But ct in Shute still
upheld forum clause as consent for efficiency reasons – seemed sketchy).
b. MINIMUM CONTACTS FOR NONRES Ds / SPEC JURIS: All assertions of pers
juris over non-res begin with Int’l Shoe →need min contacts with forum state in
accordance with notions of fair play and substantial justice to satisfy due process.
2 Requirements:
i. Due Process Minimum Contacts: To establish pers juris over nonres D, the D
must have sufficiently “reached out/ solicited” to the forum state, maybe by
“purposely availing himself of the benefits and protection of the forum state’s
laws” so that he might reasonably anticipate getting sued there (Worldwide
Volkaswagon) or maybe by committing some intentional act in forum (MO/IA
border student shooters).
1. Cont/sys … Arises out of: Courts determine min contacts by looking to
the number and nature of D’s contacts with the forum as well as whether
the cause of action arose out of those contacts or not. If the cause arises
out of some forum activity this may be enough in itself to establish min
contacts, especially if D has initiated contact/solicited/reached out to
forum in conducting that activity. (McGee). Note: sales in forum more
“reaching out” than purchases in forum (Helico). However, the
“unilateral activity of those who claim some relationship with nonres D
can’t satisfy min contacts. (Hanson – where ct refused to let mother’s
activities stand in for bank’s). Problem might arise when it is D, not third
person, who acts (so no Hanson prob) but “act” takes place outside
forum and injury occurs in forum (Hypo where student shoots in MO
across state lines and kills friend on IA border) – D not “reaching
out/purposefully availing self” of IA laws (b/c doesn’t know he’s
standing at border) but prob enough of an intentional act from which
cause arises to const min contacts even though D was not aware that
contact was with diff state (can argue state interest in protecting pol pwr
and not much burden to D to go to neighbor state to lit).
2. Stream of commerce: Gray’s “stream of commerce” theory that if D
manf product, juris follows wherever commerce takes product, “stream”
may end where last retail sale takes place. So if last retail sale takes place
outside forum, even if injury takes place in forum, may not be suff to
const min contacts (WWV – where last retail sale of auto was in NY and
though driver drove to Okla. where injury took place, D had no other
contacts with Okla., and ct said no min contacts). Also Asahi plurality
wants stream of comm. + something more (solicitation, design for forum
mkt, etc) – this is only persuasive auth b/c majority did not sign on.
3. Ks formed or breached in forum: Can’t just look to K alone (where
formed/where breached) b/c too mechanical– look to totality of circ
including negotiations, terms, and parties’ course of dealing (Burger
King).
4. Internet/Cyber Contacts: Newer way to “reach out” to forum is
through websites/internet advertising. Perhaps depends on whether a
passive website (merely informative), which is more like a print ad in a
nationwide magazine and not suff for min contacts (Pebble Beach).
Maybe an active website (used to carry out business trans with residents
of forum), which is more like sales in a forum state would be suff
(Zippo), but prob only if cause arose out of those activities.
5. State Interests and Convenience: Min contacts analysis may also take
into account whether the state has a particular interest in litigating the
suit, whether a lack of other avail forums might make D judgment-proof
if forum cannot get pers juris (McGee), whether burden/inconvenience to
D, or whether forum is convenient b/c of where evidence/witnesses are
(Burger King factors and Asahi).
ii. State Long-arm Statute: Need a state long-arm statute the reaches nonres D. If
the statute is read broadly to reach the outer limits of the due process clause, can
analyze by min contacts alone. But if statute read more narrowly, may need more
than min contacts and if can’t get, no pers juris. (Gray – where long-arm stat
required D’s “neg act” take place in forum for state to have pers juris – ct
interpreted broadly to say even though only injury took place in forum and actual
neg manf took place outside forum, can’t sep injury from neg act →all one “neg
act” so satisfied long-arm. But if read more strictly like Scalia would want then
maybe no pers juris even though min contacts b/c “neg act” took place outside
forum and long-arm doesn’t reach.)
1. Alternative if long-arm doesn’t reach D (quasi in rem): If D has min
contacts and property in forum, can get around long-arm limitations
using quasi in rem to say min contacts + attached property = pers juris
but only for recovery up to the amount of the property value.
c. GENERAL JURIS OVER NONRES: When cause in no way arises out of / relates to
forum activities (very bottom of “arises out of” continuum), can try to get gen juris –
saying contacts so systematic and continuous that can get min contacts for any cause,
even one that does not arise out of forum activities. But this is very rare! Only when D
does 100% of business in forum (business in forum and nowhere else), have we seen a ct
grant gen juris (Perkins). Easier to try to prove cause even somewhat relates to forum
activities, so can move off bottom of “arises out of” continuum and get min contacts for
spec juris.
d. PERS JURIS IN FED CT: Fed ct can exercise pers juris over D when auth by fed stat
(or by “piggy-backing” onto state long-arm) and in compliance with due process
“fairness.” Rule 4 is a service of process rule which tells fed cts how to effect pers
juris.
i. Rule 4(k)(1)(A): when D subject to juris in state ct by long-arm stat and min
contacts, also subject to juris in fed ct in that state (allows fed ct to piggy-back on
long-arm stat of state in which it sits).
ii. Rule 4(k)(1)(C): when fed stat auth pers juris (only few such fed statutes)
iii. Rule 4(k)(2): if party not subject to juris in any state, limited fed long-arm
provision establishes juris for fed ques cases if consistent with US const and laws
(very narrow – usually only for foreign Ds).
iv. Due Process: Determined by the sovereign that created the court – here the
United States so min contacts not too helpful b/c all US residents have min
contacts with nation. If use 4(k)(1)(A), not problem b/c need min contacts with
state, but for fed stat and limited fed long-arm, unresolved how to determine due
process “fairness” b/c so little caselaw on it.
e. CHALLENGING PERS JURIS: In state ct can appear specially to contest, but if argue
merits in anyway = gen appearance and consent to ct juris (waives lack of juris defense).
In fed ct, no special appearance – assert defense in answer or by motion before answer or
else waived.
i. Rule 12(b): D can assert lack of pers juris by 1) including as part of answer /
amended answer as an aff’ve defense, or 2) by motion only if filed before answer.
If not in motion before answer or in answer itself = WAIVED (Rule 12(h)(1).
1. Rule 12(g)(1): Can file multiple 12(b) motions concurrently (i.e. lack
of s/m, improper venue, insuff process, insuff serv of process, failure to
state a cl, or failure to join a part under Rule 19.
2. Rule 12(g)(2): Also some defense must be raised in initial motion if
motion filed or lose chance to raise later (lack of p/j, improper venue,
imsuff process, or insuff service).
3. Rule 12(h)(2) and (h)(3): Failure to state a cl and failure to join
under 19 can be raised at trial (not waived until trial over); Lack of
s/m juris never waived – can be raised at any time before judgment
(even on appeal), and by anyone (even by ct itself) and if found, ct must
dismiss.
2) NOTICE (Due Process): Besides pers juris, due process req adeq notice and reas opportunity to
be heard. To satisfy this due process requirement, P must provides notice that is practical and
reasonably calculated to actually inform D of suit (Mullane). Sending notice by first class
mail satisfies this requirement, even if somehow post office loses or D never receives actual
notice, b/c still reas calculated to actually inform (Mullane). Notice is waivable.
3) SERVICE OF PROCESS: Rule 4 requires service of process. Service is a procedural rule sep
from notice (can have notice but improper service). But service usually satisfies due process
requirements of notice and personal juris (serving transient D). Service is waivable and if
defense of improper serv not raised in answer or by mot before answer = WAIVED (Rule
12(h)(1).
a. MECHANICS OF SERVICE: Rule 4(e) governs service on individual (personal
service, abode service, service on agent, or following state law for serving (usually longarms have service rule which fed cts can follow to serve nonres Ds – so 4(k)(1)(A) +
state long-arm effects personal juris, satisfies notice, and satisfies service
requirements). To respond to problem of “sewer service,” where b/c of difficulties of inhand pers service servers were throwing away service and making false returns, laws
made easier and allowed for abode service. Also usually to serve on agent, agent must
have been appt by D (or by law), but Szukhent allowed for flexible understanding of
“agent for service” – okay even if appt by printed-form K and no explicit promise by
agent to transmit notice, as long as all parties interested in getting D notice so can be
confident agent will do job. Rule 4(h) governs serv on corp (permits serv on officer,
managing agent, or general agent) and cts have interpreted to say serv okay on any
representative reas calculated to give D actual notice, and can rely on corp employees to
identify proper person to accept service – even an executive secretary (Zurich Ins Co note
case). Rule 4(m) requires dismissal if D not served w/in 120 days of filing complaint
unless service waived or P shows good cause.
i. Rule 4(d) is a request for waiver of service which can be sent by first class
mail w/ incentives to encourage D to waive, and if does so, no service needed.
Cognovit Note: Debtor admits debt, waives juris, notice, and service challenges,
and lets creditor appear on his behalf – often these are in Ks of adhesion so only
enforceable in a few states. States that do enforce go off idea that bound by what
you sign and prob debtors get benefits of lower premiums, etc, b/c saving
creditor costs.
b. IMMUNITY AND ETIQUETTE
i. Immunity from Service: Some parties immune from service even if all
conditions for pers juris and service of process met. These include Ds, attnys,
witnesses, etc who have come to forum for one suit are immune from service for
another suit. The purpose of immunity is to prevent interference with the jud
process / don’t want to disincentivize parties from coming to state for orig suit by
threat of service for another suit. (Duffield – but ct held D not immune b/c before
returning home from forum, was arrested so while awaiting criminal suit in jail,
he was served with process for civil suit and ct said okay). Immunity often
governed by state (i.e. immunity for foreign govt officials).
ii. Etiquette of Service: If ct finds P fraudulently misrepresented self to induce
nonres D to come to forum for service, could find judgment procured by fraud so
invalid (equivalent to lack of juris). (Wyman – woman inducing lover to come to
airport by saying distressed/parent ill only to serve process at airport = fraud).
Note: trickery/fraud only prohibited when used to induce nonres D to come into
juris for service but trickery ok to get D already in juris to come out of hiding for
service (Gumperz note case). Even if suspect fraudulent inducement, D should
still appear and contest service through answer/by motion rather than ignore
service and risk default judgment/ lose chance to defend on merits – D in Wyman
took this risk but ct ended up finding fraud so okay.
4) FEDERAL S/M JURIS (const + stat): court’s power to hear case b/c of nature of dispute
(distinct from power over particular D). Can be challenged at any time by anyone, including party
who brought in or removed to fed ct and ct itself, and NEVER WAIVABLE →if ct finds lack of
s/m at any time before judgment, even at app ct or sup ct level, must dismiss! (Rule 12(h)(3) – this
rule is not intended to protect D but to protect state courts from improper intrusion by fed
(federalism concern).
a. DIVERSITY JURIS (§1332): Creates s/m juris when have 1) div of cit and 2) amt in
controversy. Purpose of §1332 is to avoid local prej toward nonres Ds in state cts.
Diversity of cit part of statute carries out Art III § 2 fed jud pwr over controversies b/t cit
of diff states.
i. Citizenship: Supreme Court has construed §1332 to say that complete diversity
is required (no P can be cit of same state as any D) (Strawbridge) – Statute
construed more narrowly than const even though words used are the same (“b/t
cit of diff states”).
1. Citizenship of individual: need 1) citizenship in US + 2) domicile
(perm home to which intend to return) in state at time of filing. To
change domicile, need presence/residence in diff state + intent to remain
there/make perm home. (Mas). While motives for moving don’t matter,
evidence that party moved only to get d/j could be relevant to proving no
intent to remain/make perm home. §1359 prevents parties from being
collusively made or joined just to invoke d/j (but not when parties
themselves move to diff state to get d/j).
2. Citizenship of corp: §1332 provides that a corp is cit of any state
where incorporated (may be inc in more than one state) and the state
where has principal place of business (princ place of business in only
one state). Because corp can be citizens of multiple states, can interfere
with complete div requirements – pay close attn! To determine which
state is princ place of business, cts use various tests: 1) nerve-center test:
locus of corp. decision-making and control; 2) corp activities/operating
assets test: locus of production or service activities; 3) total activity test:
hybrid of other two – flexible, balances all circumstances.
ii. Amt in Controversy: Besides complete diversity, need claim amount of more
than $75K to get d/j. Amt in controversy is purely a statutory issue (not a const
issue). Amount claimed by P at time of filing controls if made apparently in
good faith (only able to be dismissed if appears to a legal certainty that claim is
less than juris amount) (Whitchurch). §1332(b) allows judge to deny costs to pay
and to order P to pay D’s costs if turns out judgment is less than $75K, but the
jurisdiction still stands.
1. Aggregation of claims: Generally, P can combine all claims against
the same D, even if claims are unrelated except as to parties, to get $75K
requirement (can join all claims, even unrelated ones, against same D
using Rule 18). But when multiple Ps join in suit against D, may not
aggregate (unless claims deal with single title/joint ownership of prop –
very rare). Just remember generally multiple Ps may not aggregate and
if individual claims don’t satisfy amt in controversy, must try to get
suppl juris over entire “case.”
b. FED QUES JURIS (§1331): Creates s/m juris when case involves a fed ques. Carries
out Art III § 2 fed jud pwr over cases “arising under US const, laws, and treaties.” But as
w/ d/j, statute construed more narrowly than const even though words used are the same.
i. Fed ques in prima facie case (not in anticipated defense): to get §1331 juris,
1) first ask if P’s well-pleaded complaint / original cause of action must
involve a ques of fed law. A fed ques arising in an anticipated defense is
insufficient (Mottley). Perhaps this rule arose out of a concern of fed cts getting
too crowded or because there may be several defenses so ct may never even get
to fed question.
ii. Holmes creation test: Ct construes §1331 more narrowly than const to say that
for purposes of §1331, a suit usually “arises under” the law of the sovereign
which created the cause (i.e. b/c K law created by state, state should have juris
over K claims – even if involves incidental fed ques such as patent/copyright).
(T.B. Harms). So if well-pleaded complaint includes fed-ques, 2) next ask which
sov created cause – this usually answers whether fed ques or not but not
dispositive →there are exceptions when a substantial fed ques is nested
within a state law claim or vice versa.
iii. Nested fed law element within a state law claim: If state law created cause, can
only get §1331 if 3a) a substantial fed ques nested within state law claim, and
3b) granting fed juris does not interfere w/ division of labor b/t fed and state
courts (federalism concern) (Grable – where significant fed issue b/c involved
interpretation of fed tax statute/govt substantial interest in collecting delinquent
taxes and no disruption of fed/state division b/c so rare that title claims like this
would involve a fed ques). Similarly, where fed law creates cause of action
but case involves many more nested state law elements than fed ques, no
§1331 juris even though fed law created cause (Shoeshine).
1. To determine whether fed ques subst, consider nature of fed interest at
stake: if fed ques involves construction / interpretation of fed law,
constitutionality of fed law, direct impact on federal revenue, or
necessary element of case (can’t be decided without ruling on fed law)
→prob substantial. On the other hand, using fed law merely to prove an
element of a state law claim is insufficient to create §1331 juris not as
substantial, so no §1331 even if well-pleaded complaint includes a fed
ques (Merrell Dow – no §1331 juris where fed stat violation merely used
to prove element of negligence).
2. To determine whether would upset fed/state division of labor, consider
how common would be to have such nested fed ques (rare for fed ques to
appear in title to land cases but maybe fed ques more commonly used to
prove element of state tort action and so to allow would flood fed cts
with state law actions).
3. Whether fed law in question creates a private right of action is also
relevant (but not dispositive) to determine whether §1331 juris is
appropriate (Grable and Merrell Dow)
iv. Exclusive fed juris: Limited class of cases are subject to exclusive fed juris - can
only be heard in fed cts (certain securities, bankruptcy, patent/copyright, etc).
Rest can be heard in state ct even if involve fed ques.
c. DECLARATORY JUDGMENT (§2201): When the actual controversy is within fed
juris, that is when the coercive P could bring suit in fed ct by d/j or fed ques, either
party may seek declaratory judgment to determine rights before suit ever brought.
Declaratory judgment has the force and effect of a final judgment. However, if actual
controversy not w/in fed juris, parties cannot seek declaratory judgment in fed ct, even if
well-pleaded complaint for declaratory judgment includes a fed ques! This is b/c §2201
only creates a new remedy; it does not create jurisdiction!
d. SUPPL JURIS / FED & NONFED CL TOGETHER (§1367):
i. Constitutional authority: Fed courts can only hear non d/j, nonfed claims when
they fall into the same Article III/constitutional “case” as a fed law claim. The
two fall into the same “case” when they derive from a common nucleus of
operative fact. (Gibbs – note: once established the nonfed is part of same “case”
as fed, even if fed claim dismissed, Art III juris remained over state claim, but
court should (not required to) dismiss according to Gibbs discretionary factors).
ii. Statutory authority (§1367):
1. §1367(a) says as long as court has orig juris over at least one claim,
can get broad suppl juris over all other claims in same Gibbs “case”
(all claims that derive from same nucleus of operative fact)– reaches the
limits of Art III power.
2. §1367(b) then retracts suppl juris in d/j cases, prohibiting suppl juris
over
a. 1) claims by Ps against Ds joined under Rule 14 (3rd party Ds),
19 (Compulsory Joinder), 20 (Permissive Joinder), or 24
(Intervention) when would destroy complete diversity
i. No suppl juris when Ps join nondiv Ds, whether
nondiv b/c of citizenship or amount in controversy,
period. (codifies Owens rationale by saying we allow Ds
to bring in nondiv Ds but do not allow Ps to bring in
nondiv Ds b/c don’t want to let Ps get around complete
div req for fed ct).
b. 2) claims by persons proposed to be joined as Ps under Rule
19 (compulsory joinder) or seeking to intervene as Ps under Rule
24 (intervention), when would destroy complete diversity.
i. Sometimes suppl juris when Ps join suit
1. No suppl juris: when Ps joined under 19 or 24,
and nondiv or less than amt in contr.
2. Yes suppl juris: when Ps joined permissively
under Rule 20 w/ less than amt in
controversy, as long as has div cit – and as
long as orig P is div cit and satisfies amt in
controversy, can get suppl juris over whole
case. (Exxon – uses plain language of §1367 to
say that only prevents nondiv/non amt in contr
Ds joined but does not prevent non amt in contr
Ps joined).
3. No suppl juris: when nondiv cit Ps joined,
period - even if joined under Rule 20 (as well
as 19 and 24) because destroys complete div,
so there is never orig juris over any P and so
does not satisfy §1367(a)!! (Exxon dicta – uses
contamination theory to say if no orig juris over
one claim, there is no orig juris over any claim
and in case of nondiv Ps being joined, never orig
juris over any claim!). Note: This does not apply
to class actions –§1332 provides special rule for
class action (enough if any member of P class is
cit of diff state than any D).
3. §1367(c) essentially codifies Gibbs discretionary factors (and adds 4th
“other compelling reasons”) to say that if fed ct has suppl juris over
nonfed claims by §1367(a) and (b) but wishes to decline, must use
§1367(c) factors (state law issue novel, complex, or predominates, or all
fed law issues dismissed and only state law issue left), or if use the nonGibbs factor (4), must give expressly identify the exceptional
circumstance / compelling reasons. (Exec Software).
a. Re: factor (c)(2) “state law predominates”: ask if state law
predominates in terms of 1) proof, 2) remedy sought, or 3) scope
of issues raised, not just in # but in significance. (Lancaster).
e. REMOVAL (§1441): allows D limited right to transfer to fed ct when P brings suit in
state ct. Note: Ds are Ds in orig claim – P can’t claim r/j on countercl b/c still P for
purposes of §1441. (Shamrock).
i. §1441(a): allows D to remove to fed court if P sues in state ct only when fed
ct would have had orig juris by d/j, fed ques, or suppl juris. Have to look at
whether P could have brought suit in fed court, and only if could have but chose
not to, can D remove (i.e. if P couldn’t bring in fed ct b/c nondiv and fed ques
only in anticipatory defense – no r/j).
1. Re: Suppl Juris: if P could bring both fed and nonfed claims in fed ct
using suppl juris, but chooses not to, then D can remove entire “case” to
fed ct – D can do whatever P could have done, except when D is cit of
state where action orig brought (see §1441(b))
ii. §1441(b): If orig juris is only by d/j (no fed ques), D can only get r/j if no D is
cit of state where action brought – if any Ds are cit of state where cl brought, no
r/ j. This is b/c purpose of §1332 is to protect nonres from discrimination, and if
nonres is P, not D, and P chooses state ct, no need for r/j! Note: if P’s orig cl
could have gotten fed ques juris, can get r/j without regard to citizenship of
parties.
iii. §1441(c): when orig claim contains §1331 (does not apply to d/j cases) ques
joined with a sep/ind nonfed claim that somehow could not get suppl juris over,
can still get r/j over entire case, and then fed ct can remand nonfed claims back to
state ct at its discretion using factors (similar to §1367(c) factors). This applies to
very small pocket of law where Gibbs doesn’t define full extent of Art III – not
part of same “nucleus of operative fact” (so no suppl juris) but somehow still so
closely tied to §1331 cl that considered same const “case” and can be removed
along with §1331 claim, and ct can have discretion to remand nonfed claims back
to state ct using factors.
1. When P seeking relief from “single wrong” / seeking “single remedy”
even if against multiple Ds, no sep/ind claim and still suppl juris over
entire case or cannot be removed (Finn).
2. Sep/ind claims require dfferent rights (i.e. tort + K claim) sought to be
protected, so even if same facts, if two diff rights sought, prob this is
what is meant by sep/ind cl and §1441(c) would apply (Elizabeth
Taylor).
f.
CHALLENGING S/M JURIS:
i. Direct Attack (before judgment): if ct finds lack of s/m at any time before
judgment, even at app ct or sup ct level, must dismiss! (Rule 12(h)(3) – this
rule is not intended to protect D but to protect state courts from improper
intrusion by fed (federalism concern). Lack of s/m may be asserted by any party
or by ct itself, and parties can never create s/j juris by agreement or consent.
ii. Collateral Attack (after judgment): After judgment, can’t go back and
challenge either personal or s/m juris unless very exceptional circumstances.
Only allow collateral attack if no reliance on judgment and 1)s/m so plainly
beyond juris that lit was clear abuse of ct’s auth, 2) allowing judgment would
subst infringe on another ct (Kalb – where fed ct juris pwr over bankruptcy so
clear that state ct judgment on it would be subst infringe on fed auth), 3) ct
lacked ability to make informed det on s/m juris, or 4) in default judgment
situations. (Restatement II).
5) VENUE (purely stat, not const issue): proper district in which to bring trial. Note: §1391 does
not apply to removal cases – if can remove by §1441, automatically get venue. Venue is
waivable and if defense of improper venue not raised in answer or by mot before answer =
WAIVED (Rule 12(h)(1).
a. PROPER VENUE (§1391): if improper venue, see §1406
i. §1391(a): For solely d/j cases, proper venue is only 1) in district where D
resides (if all Ds reside in same state), 2) district where substantial part of events
giving rise to claim occurred, or only if can’t get venue by 1 or 2, can turn to 3)
district where any D subject to pers juris at time action commenced.
ii. §1391(b): For fed ques cases, same 1 and 2, but default 3) rule is district where
any D found rather than where D subject to pers juris.
1. Note: #2 (where subst part of events giving rise to claim occurred) allows
for proper venue in more than one district – doesn’t have to be only the
district where most subst events occurred (Bates – where ct said subst
events occurred in NY to create proper venue even though most of events
occurred in PA – venue could have also been in PA).
iii. §1391(c): not a venue rule, but tells that for purposes of venue, corporations
deemed to reside in state where subject to pers juris, and in any district w/in
which has suff contacts for p/j if were sep state, or if no such district, in the
district w/ which has most significant contacts.
iv. Local Action Rule: Venue rule that says proper venue for case involving real
property is the state where property located. In fed ct, rule is codified in §1392,
says proper venue for case of a local nature involving property locating in
different districts of same state is any of those districts. (Reasor-Hill).
b. TRANSFER OF VENUE (§1404 and §1406): D may move for change of venue (to diff
dist) under §1404, and dist ct has discretion to grant “in interest of convenience and
justice” to another district “where might have been brought.” Sup Ct has held that
“where might have been brought” means only transfer to district where P could have
brought originally by §1391 (dist where Ds reside if all in same state, where subst part
of events took place, or where D subject to pers juris if d/j or where found if fed ques) –
and Ds cannot “consent/waive objection” to venue anywhere else. (Blaski – note, dissent
in that case thought could transfer anywhere convenient and just, even if not one of orig
proper venue under §1391 / trusted fed judges more but Ct did not agree). Note: where
d/j case transferred by §1404, must apply choice of law of transferor/ original state
(to disincentivize parties from transferring to get better choice of law).
i. §1406: If case filed in dist ct with no venue by §1391, dist ct may dismiss or in
interest of justice, transfer case to any dist where could have been brought. Sup
Ct has held that §1406 authorizes transfer even if transferor ct lacks personal
juris over D (Goldlawr note case) but only in fed ques cases, where juris over all
US citizens, and not d/j cases.
c. DISMISSAL BASED ON INCONVENIENT (THOUGH PROPER) VENUE
(FORUM NON CONVENIENS) – usually involve international disputes!: Ds may
move to dismiss even when venue proper under §1391, because of inconvenience.
District court has discretion to dismiss using FNC Test:
i. 1) Valid alternative forum available? (prerequisite - no fnc w/out alt);
ii. 2) Balancing test: considering 2a) private interests of litigants (access to proof,
witnesses, costs) vs. 2b) public interests (desire of court to handle local
controversies, difficult ques of foreign law, choice of law probs, congested cts),
and unless balance strongly in favor of D, P’s choice of forum will be
enforced. (Gilbert and Reyno – where ct dismissed FNC for D b/c choice of law
prob and b/c involved difficult ques of foreign law). Note: dist ct decision will be
upheld unless clear abuse of discretion – b/c such loose standard, whether dist ct
chooses to dismiss or not, almost always upheld. Note too: b/c FNC is dismissal
of claim, if judge wants to keep claim alive but knows more convenient forum
elsewhere, can condition FNC dismissal on D’s promise to waive any pers juris
or stat of lim defenses!
ERIE: CHOICE OF LAW PROBS IN D/J:
1) Which law to use: Fed vs. State: In solely d/j cases, apply federal procedural law and state
substantive law (Erie). What constitutes substantive vs. procedural law? Some ques easy
(state statutory law is always subst, also broad state c/l areas like K and tort are obviously
subst , but things like stat lim, rules governing jury verdicts, and other things that seem
“proc” but implicate Erie twin aims (see below) – unclear.
a. Hanna – Direct Conflict b/t Fed and State – no Erie Prob: When federal const or
stat law in direct conflict with state law, no Erie problem and fed law automatically
controls (Supremacy Clause). When Federal Rule in direct conflict with state rule,
fed rule also governs unless 1) violates Rules Enabling Act (“rules shall not abridge,
enlarge, or modify any substantive right) or 2) violates constitution – pretty sure
courts have never found a Fed Rule to violate either of these, and if seems like Rule
would violate, cts construe the Rule to avoid any direct conflict and let state law
control.
i. Must be a direct conflict, but if fed rule broad enough to cover issue, can find
conflict (Stewart – ct read §1404 venue transfer language of “interests of
convenience and justice” so broadly to cover issue of whether K forum
selection clauses should be enforced and said conflicted with state rule
disfavoring clauses. Note: Scalia had well-reasoned dissent that fed and state
law could be reconciled by saying fed rule could look to “convenience and
justice” considering state law policy but majority refused to read the fed law
as containing nested state standards).
ii. Sup Ct has held that fed pleading rules (Rule 8) control in d/j cases by Hanna
so that fed law governs who pleads, even if state law requires other party to
prove (substantive) – and consequence may be that if D does not plead, P
relieved of having to prove one element of her prima facie case. (Palmer).
iii. If fed and state rule govern same activity but one is mandatory and other
discretionary, can find direct conflict and say fed rule controls (Woods – state
had mandatory penalty for all unsuccessful appeals and fed had discretionary
penalty only for frivolous unsuccessful appeals, so ct found conflict and said
fed law controlled).
iv. State law can govern appellate review of size of dmg awards without
conflicting w/ fed law (7th amend: no reexamination of facts – dmgs are ques
of fact) as long as app review limited to “abuse of discretion” standard.
(Gasperini – note b/c no conflict, Erie analysis applies and could say that app
review of dmgs is “essential character” of fed ct by Byrd b/c affects
judge/jury relationship so should use fed rule rather than state rule but could
also say that using fed rule would encourage forum shopping/inequitable
admin of law b/c fed law gives jury more leeway to grant large dmg awards
so should use state rule – close call, but ct went with using state rule).
b. If no direct conflict, consider:
i. Erie Twin Aims: 1) Avoid Forum Shopping, and 2) Avoid Inequitable
Administration of Law: if applying fed. law over state will cause litigants
to flock to fed. cts and give them advantage over parties that can’t get to
fed. ct. b/c no diversity, law is likely substantive and so state law should
be applied.
ii. Other subst vs. proc considerations: Statute of Lim is subst so use state
stat lim rule b/c every subst right necessarily has a temporal aspect /
necessarily ends with stat of lim (York). Plus commencement time/tolling
of stat lim also subst (b/c integral part of stat lim which is subst itself) so
use state rule for deciding when stat lim commences and not Rule 3
(action commences when complaint filed) in d/j cases (Ragan – upheld in
Walker – though sounds like Rule 3 does time stat lim but perhaps reading it
that way would violate Rules Enabling Act/ be unconst by modifying a
substantive right – also see Erie prob w/ “relation-back amendments”
under 15(c) [below in Pleadings: Amendments]). Can try to use York
outcome determination test to say any rule that affects outcome of lit is
substantive, but prob is almost any rule (even minor procedural rules) can
affect outcome of lit. Moreover, even if use York outcome determination
test, need not follow state rule when it disrupts an essential character or
function of the federal court system, such as the judge/jury relationship
(Byrd). Another suggestion to decide b/t substantive and procedural is to say
rules whose purpose deal with issues outside courtroom (rather than just
courtroom proc) are substantive (J. Harlan concurring in Hanna).
2) Ascertaining State Law: Must apply substantive law of state in which ct sits. Exception: if
d/j case was transferred under §1404 change of venue, transferee ct should apply law of state
in which action filed (Van Dusen note case – see above under Venue). If state’s highest ct has
not addressed issue at all, fed ct should examine all relevant sources of state law, including
analogous cases and dicta to indicate how state ct might rule (McKenna note case). Also,
when state law is against great weight of authority, fed ct might be able to take it as an
indication that the state law will change and rule accordingly in d/j case (Mason – 1st circ.
rule not Sup Ct), but presents difficulties either way: on the one hand, we are uncomfortable
letting fed cts “read tea leaves” and try to predict state law changes, but on the other hand if
we say only state sup ct can change rule, might be disincentivizing use of fed cts and
defeating purpose of d/j. Certification: process to allow fed ct to petition state ct for answer to
unresolved legal question. Abstention: allows fed ct to stay its own proceeding to have state
ct interpret law. Both very rare b/c causes lot of delay, but certification more common than
abstention.
3) Claim Preclusion: to determine claim preclusive effect of prior d/j action, fed cts
ordinarily apply law of forum state of first suit unless conflicts w/ fed interests (Semtek –
ct went by CA law which said dismissals based on CA statute of limitation were not “adjud
on merits” and so did not preclude Ps from bringing claim in another state w/ longer stat lim).
PLEADING
1) REQUIREMENTS AS TO DETAIL: Rule 8(a) provides that a pleading must state a “short
and plain statement of the claim showing that the pleader is entitled to relief” without regard
to likelihood of success on merits. Goal is to give notice of nature of claim(s), defense(s), and
transaction (“notice pleading”) – no longer carry burden of disclosing facts or narrowing issues
(now taken care of during pretrial proc). No need to get into too many facts – better not to b/c
could make fatal mistake – system favors letting Ps get into ct and then dealing with claims in the
pre-trial process. (Dioguardi and Swierkiewicz). Some types of suits seem to require heightened
pleading requirements, such as antitrust suits (Twombly – said alleging unlawful “agreement” by
itself is insufficient for antitrust pleading – need more facts) and shareholder derivative suits.
Note: Twombly overruled Conley statement that “don’t dismiss on pleadings unless appears
beyond doubt that P can prove no set of facts in support of cl which would entitle relief” –
statement goes too far / no longer valid for any claims, not just antitrust claims.
2) COMPLAINT: Typically P must plead those elements he must prove / those matters basic to the
claim for relief, but P not required to plead matters which D must prove – typically the burden
of pleading follows the burden of proof and the burden of production, but there are
exceptions: pleading and proof rules may conflict in d/j cases where Federal Rules
determine who pleads (Hanna – where fed and state rule conflict, fed rule wins), but state law
requires other party to prove (Erie – substantive) (Palmer – Rule 8(c) required D to plead
contributory neg as aff’ve defense, but state law required P to prove ordinary care/absence of
contributory neg as part of prima facie case). Sup Ct has said that in these cases, fed rule governs
pleading and state rule governs proof, and if these conflict, so be it – so if D never pleads, issue
just goes away and P never has to prove (moral of the story – D’s lawyers must plead to force P’s
lawyers to prove to full extent!).
a. 12(b)(6) DISMISSAL (FAILURE TO STATE A CLAIM): Normally get 2 chances
to plead correctly before dismissal. But If P pleads facts that show he is entitled to
no relief (b/c of absolute defense, for ex), ct should dismiss by Rule 12(b)(6) failure to
state a claim. (Garcia – d/j slander case where state law created “absolute privilege” for
slanderous testimony in a hearing, so that allegations of slander during hearing had to be
struck and if those were only allegations of slander, ct would have to dismiss by 12(b)(6),
but in that case pleading also contained other allegations and ques of fact sufficient to
constitute claim). But shouldn’t dismiss just because includes invalid claim along
with valid one (American Nurses Ass’n – where 20 pg complaint alleged lots of invalid
claims instead of just alleging intent to discriminate as it should have but ct went out of
way to look for valid claims, even where unclear, and allowed pleading to go on even
though prob would lose on merits). Note: 12(b)(6) dismissal, unless specified “w/out
prejudice” falls under rule 41(b)’s involuntary dismissals which bar P from re-filing
claim in same ct. (Rinehart).
3) ANSWER: Rule 8(b)(3) requires that unless party intends to deny all allegations must
either specifically deny designated allegations or generally deny all except those specifically
admitted. Ds who generally deny entire conjunctive clause even though portions of it are true (D
did ___, ___, and ___) may violate this rule b/c even though denial truthful, it is misleading
(seems like D denying each part of conjunctive clause even when some parts true) (Zielinski –
dist ct case saying improper answer estopped D from denying parts that were obviously untrue,
essentially “lying to jury” and causing D to lose b/c of pleading error rather than on merits –
seems like a high penalty for pleading error but maybe justified b/c in that case, stat lim had
expired and P would have lost chance to lit against correct D b/c of D’s careless error). Rule 8(c)
lists affirmative defenses which must be included in answer but also contains residual clause
(“any avoidance or aff’ve defense”) and cts sometimes split over what add’l defenses must
be pled in answer. (Ingraham required defense of statutory damage cap be raised in answer,
while Taylor did not – but maybe distinguishable b/c in Ingraham D tried to raise defense after
judgment over whereas Taylor D raised before judgment, allowing for possibility of new trial to
get rid of prob of unfair surprise to P). Rule 12(b) contains defenses as to matters outside
pleadings (lack of juris, improper venue, improper service, etc), which can be pled by
motion before answer – most other defenses, according to 8(c) must be pled in answer.
4) AMENDMENTS:
a. Amendments before trial: Rule 15(a)(2) provides that a ct “should freely give leave
to amend complaint/answer before trial when justice so requires.” Normally Ps get 2
shots (and 2 shots only) to make pleading. If mess up once, cts will usually grant leave to
amend, but if mess up again, usually dismissed by 12(b)(6). (Dioguardi). Cts have
interpreted “when justice so requires” to say should grant leave to amend unless made in
bad faith, causes prejudice to other party, or causes undue delay (Beeck). However, trial
ct has broad discretion in this regard, and app ct will only review for abuse of discretion
(Beeck – app ct upheld trial ct’s grant of leave to D to amend answer relying heavily on
no bad faith but prob also would have upheld denial of leave b/c of prejudice to P – really
up to discretion of trial ct).
b. Amendments during/after trial: 15(b) allows flexibility to amend pleadings after
discovery to define issues more narrowly. 15(b)(1) says if parties object to evidence,
makes clear that they are putting issue into play, so ct should allow leave to amend. But
even if don’t object, if issue inherent to suit and raised without objection, court could see
as “implied consent” and treat issue as if pled / grant leave to amend if requested (Moore
interpretation of 15(b)(2) which says if issue tried by parties’ express or implied consent,
it should be treated as if pled and leave should be granted to amend – ct said countercl of
custody and child support are so inherent an issue in custody cases that if raised at trial
without D’s objection = implied consent = treat as if pled and grant leave to amend).
c. “Relates Back” Amendments to Satisfy Stat Lim – Rule 15(c): alternatives:
i. 15(c)(1)(B): When arises out of same conduct/trans set out in orig: Allows
relation back for claim that arises out of same conduct/trans as orig claim(s) even
after stat lim has expired. (Worthington). This is allowed b/c purpose of Stat Lim
is 1) ensure efficiency/accuracy of trial (no stale evidence), and 2) avoid
springing suit on D who has reached repose – neither is prob when claim arises
from same conduct b/c same evidence as orig and D never reached repose b/c
already been sued (focus on effect on D not why P delayed – doesn’t matter if
bad lawyering, etc b/c effect on D is same).
ii. 15(c)(1)(C): Naming wrong party: Allows for relation back if within 120 days
of filing compl correct D i) receives notice and ii) knew or should have known
that action would have been brought against him but for mistake. Again rule says
nothing about what type of mistake, why mistake made, or how D found out only that if mistake but if D somehow finds out w/in 120 days = relates back. 7th
circ says naming “unnamed” D / lack of knowledge as to correct party is not the
same as mistake so no relation back even if correct D finds out in time – but this
rule does not make sense b/c effect on D is same whether mistake or lack of
knowledge. Note: P can’t just name incorrect party on purpose to gain time
to find correct D b/c would violate Rule 11.
iii. 15(c)(1)(A): state law rule allows relation back: Drafted to minimize Erie
probs by allowing cts to use state law when it allows relation back or use fed law
under (c)(1)(B) and (c)(1)(C) (three options provide alternative methods of
relation back). So for d/j cases, if state law relation-back rule is more liberal
(broader than conduct/trans), can use state law rule b/c state law is nested within
fed rule - is no conflict b/t fed rule and state law b/c fed rule incorporates state
law (no Hanna prob).
1. But in d/j cases when state law is more restrictive than (c)(1)(C) [would
not allow relation back when named wrong party even if D received
notice w/in 120 days], ct may have Erie prob to choose b/t (c)(1)(A) and
(c)(1)(C). Seems like should go with (c)(1)(C) b/c the (c) relation-back
rules are alternatives, and whichever allows relation back should be used.
But if use (c)(1)(C), could be promoting forum shopping/inequitable
admin of laws b/c allowing better stat lim rule in fed ct / disc against
state parties who can’t get diversity. Also stat lim is substantive (York)
and rules which closely integrated with stat lim also subst (Ragan /
Walker) so seems like state rule should apply. Perhaps this is why 15(c)
amended to expressly provide for state law rules to be used – b/c
otherwise might make Rule 15 violate Rules Enabling Act/const by
modifying subst right??
5) SANCTIONS (Rule 11): attempts to curb abuse in fed pleading rules by imposing aff’ve duties
on attnys and sanctions for failure to discharge such duties. Original rule had subjective standard
(required only good faith) so very little “bite” / hard to prove. Then 1983 rule made much broader
and objective standard so resulted in windfall of baseless accusations of Rule 11 violations.
Current rule attempts to deal w/ probs of too many baseless Rule 11 violation claims by creating
safe harbor provision where if party withdraws/corrects violation w/in 21 days after served
w/ mot for sanction=no sanction. Scalia and other critics think current rule is toothless b/c
allows attnys to try anything and just withdraw if accused of violation – proposed amendments to
Rule 11 respond to these concerns but prob won’t pass b/c again go overboard (no safe harbor,
mandatory rather than discretionary sanctions, makes applicable in state cts – never before has
fed rule applied in state ct). Rule 11 allows attnys to rely on objectively reasonable
representations of client as long as make reas inquiry into cl before filing (Hodges and
Business Guides Inc note case- once attny gets notice that claim incorrect, Rule 11 obligates him
to investigate further). Note: Rule 11 applies to factual and legal representations, as well as legal
research.
JOINDER: if want to add a claim or a party, need a rule to join claim and/or party (then need to get s/m
juris [fed ques, d/j, or suppl juris] over claim and/or pers juris over party). Note: even if dealing w/ a d/j
case, and state law conflicts/does not allow joinder of cl or party, fed rule controls (Hanna).
1) JOINDER OF PARTIES
a. Rule 20: Permissive Joinder – joining 3rd parties
i. 20(a): Allows joinder of persons as Ps when they have claims arising out of
same trans as orig P, and will have common ques of law or fact (no §1367(b)
prob w/ amt in controversy but still need complete div)
ii. 20(b): Allows joinder of persons as Ds … (§1367(b) prob if P tries to join 3rd D
– prob w/ both amt in contr and complete div)
b. Rule 14: Impleader – claims of contribution/indemnity against 3rd parties (if P tries
to join 3rd D, §1367(b) prob w/ both amt in contr and complete div)
i. 14(a)(1): Ds may bring in 3rd party Ds who are or may be liable to D for
all/part of claim against him. Note: in d/j cases, though this fed rule controls
even if state law conflicts (Hanna), state law determines “who is or may be
liable” so that if state law says no indemnity unless D completely blameless and
D obviously not blameless, state law may provide that 3rd party D is not and may
not be liable so no 14(a) and no impleader indemnity (complete liability) – but
may allow impleader for contribution (partial liability). (Too).
1. 14(a)(2) – (6): Once 3rd party made 3rd D, allows 3rd D to join claims
against other parties, and vice versa as long as all arise from same
trans.
2. 14(a) + 18(a): Once 3rd party made 3rd D, allows parties to join all
claims they have against each other, even if don’t arise from same
trans but then couldn’t get suppl juris b/c wouldn’t satisfy §1367(a)
so would need ind fed ques or d/j juris.
ii. 14(b): Ps may bring in 3rd party D when D asserts countercl against P (so P
acting as D) whenever this Rule would allow D to do so - w/ same limitations
in d/j cases, that state law determines “who is or may be liable.”
iii. If want to seek indemnity/contribution from already existing party, use 13(g)
cross-claim [see below].
c. Rule 13(h) + Rule 20 allows joinder of 3rd opposing parties to counterclaims or
cross-claims.
d. Rule 19: Required joinder of 3rd parties by existing parties (if P trying to either join
3rd D or 3rd P, §1367(b) prob w/ both amt in contr and complete div)
i. 19(a): Necessary parties – if can bring in and can get pers juris / s/m juris /
venue, bring in): If person needed to accord complete relief among existing
parties, or if person’s interest is so closely related to trans that her absence would
impair her interest (b/c of limited insurance funds, e.g.) or would leave existing
party w/ risk of inconsistent obligations, should bring her in. But if can’t get pers
juris, s/m juris, or venue, then we let her claim be tried in sep suit w/out any prob
of issue preclusion b/c she has due process rt to day in ct (even if risk of
inconsistent verdicts).
ii. 19(b): Indispensable parties – if can’t bring in, should case be dismissed, or
if case already decided, should judgment be applied?: Use factors to decide
whether person is indispensable – so that if objection to nonjoinder comes up at
trial=dismissal, or if objection comes up after judgment = judgment overturned
(more likely to decide indispensible if comes up at trial b/c easier to dismiss and
let parties bring in state ct than to reverse judgment). Note: even if ct decides
judgment should stand, person who was not brought in can still sue
separately w/ no issue preclusion b/c has due process rt to day in ct!
(Provident).
1. Factors: 1) prejudice to person or to existing parties if judgment
rendered in absence (b/c person’s impaired interests/limited ins. funds or
because would result in inconsistent verdicts – similar to what makes
party necessary), 2) extent to which prejudice could be lessened by
shaping relief , 3) whether existing P would have adequate remedy if
action dismissed (i.e. whether could bring in state ct) – (Provident – ct
said not indispensible/allowed judgment to stand b/c prejudice lessened
by shaping relief [all Ps promised to limit claims to amount of ins policy]
so that Dutcher could still sue sep w/out having to worry about depleted
ins funds).
2. A statute can make a party an indispensable party (Hanson – DE bank
was made indispensable party to FL suit and b/c ct couldn’t get pers
juris, dismissed suit).
e. Rule 24: Intervention of 3rd parties w/out invitation (§1367(b) prob w/ both amt in
contr and complete div for either P’s claims against intervening Ds or intervening P’s
claims any D).
i. 24(a): Right to Intervene (Intervention of Right): Even if judge wouldn’t want
to let party inject self into suit by own discretion (24(b)), should if 1) party
claims “interest” relating to trans, 2) potential harm to interest if not allowed to
intervene, and 3) interests not adequately represented by existing parties – if
don’t meet all three, no intervention (Smuck- parent intervenors in school deseg
case – though Board did adeq rep parents at trial, ct says by choosing not to
appeal, Board did not adeq rep parents – prob erred on side of due process and
wanted to give parents day in ct even if they would ultimately lose on merits).
ii. 24(b): Intervention Allowed (Permissive Intervention): Ct may allow
intervention if person’s claim shares common ques of law/fact w/ main action,
but b/c intervention cuts against notion that P controls suit, cts should balance jud
economy/efficiency of single suit against interest in preventing single lawsuit
from becoming fruitlessly complex to decide whether to allow.
f.
Joinder by P of 3rd D by 14, 19, 20(b), or 24:
i. In d/j cases §1367(b) retracts suppl juris over claims by P against 3rd Ds
joined under any of these rules (14(a) or (b), 19, 20, or 24) if less than amt in
controversy or if would destroy complete diversity. This is true even if
removed to fed ct by D (i.e. even if P could have brought in 3rd D in state ct
where no d/j prob and had no control over move to fed ct – though this seems
unfair, have to follow plain language of §1367(b) (Guaranteed).
ii. Still need pers juris over 3rd Ds but if need to, could probably move for
change of venue under §1404 to ct where can get pers juris over D (either by
citizenship or min contacts) and ct would prob grant b/c “in interest of
convenience and justice” – but note if d/j suit, choice of law would come from
state where transferor ct sits!
g. Joinder of 3rd P by 19, 20(a), or 24:
i. By 19 or 24: in d/j cases, §1367(b) retracts suppl juris over claims by 3rd Ps if
less than amt in controversy or if would destroy complete diversity.
ii. By 20(a): in d/j cases §1367(b) does not retract suppl juris over claims by 3rd
Ps joined under Rule 20 - even if less than amt in controversy (Exxon), as
long as 3rd P div cit →no suppl juris if would destroy complete diversity b/c
then never orig juris over any P/don’t satisfy §1367(a) (Exxon dicta).
iii. But no prob w/ pers juris b/c Ps joining in are consenting to juris, including
for any countercl/cross-cl against themselves.
2) JOINDER OF CLAIMS AGAINST EXISTING PARTIES
a. JOINDER OF CL BY P: claims against existing opposing parties
i. Rule 18 permits parties to join as many cl as they have against opposing
party (no need for cl to arise from same trans as orig). 18(b) allows joinder of
two claims, even if one is contingent upon disposition of other. Joinder rules
promote efficiency, and to avoid concern about danger of prejudicing jury if P
joins a cl just to make D look like bad guy, can use Rule 42(b) to order sep trials
to avoid prejudice (but still all one suit and all issues efficiently dealt w/ together
in pre-trial stage). Rule 18 also helps Ps aggregate all cl against same D if
need to get amt in controversy to get into fed ct. But note: if claims don’t
arise from same trans, no suppl juris b/c don’t satisfy §1367(a) so need ind
fed ques or d/j juris.
ii. But even though Rule 18 not mandatory, if 2d claim is part of same “trans”
as 1st claim and P does not join, may lose chance to litigate 2d claim by claim
preclusion – claim preclusion says can’t split claims that are part of same
trans so claim preclusion can sometimes make joinder seem mandatory, even
though two rules represent different bodies of law [claim precl=c/l;
joinder=procedure], b/c they use the same standard: “trans”. (Rush)
b. COUNTERCL BY D: claims against existing opposing parties
i. Rule 13(a) requires that D must state any claims arising out of same “trans”
as P’s claim as counter claim. These counterclaims can get §1367(a) suppl
juris (because “trans” = same nucleus of operative fact = same “case”). If D does
not raise cl from same “trans” as countercl, 13(a) silent as to consequences but
could prob say inherent in word “compulsory” that if not raised as countercl,
cannot be brought in aff’ve suit in fed ct. But note, cannot bring as aff’ve suit in
either fed or state ct anyway b/c of c/l claim preclusion – fed rules don’t apply to
state ct but c/l claim preclusion does.
1. If complaint filed, and stat lim expires before answer/countercl, most cts
agree that compulsory countercl are not time barred so can still be
included.
2. Omitted Countercl: Rule 13(f) permits amendment to add countercl if
justice so requires. If this amendment occurs after stat lim has expired,
must look to 15(c) to see if amendment relates back.
ii. Rule 13(b) allows for permissive counterclaims for any countercl not
compulsory but if not compulsory = not same “trans” (otherwise would be
compulsory) = no §1367(a) suppl juris (because “trans” = same nucleus of
operative fact = same “case”) so need ind fed ques or d/j juris over permissive
counterclaims (can’t rely on suppl juris)! But probably no prob with claim
preclusion because not part of same “trans” so no problem with splitting claims.
iii. If P or D wants to add a 3rd party to a countercl or cross-claim, must use
13(h) + rule 20.
c. CROSS-CL: claims against existing co-parties
i. Rule 13(g) allows cross-claim against existing co-parties for 1) P or D’s own
injuries that arise from same trans as original action, or for 2) indemnity for
liability to opponent. Note: Even though more efficient to include all related
claims in one suit, cross claims are always permissive b/c usually irrelevant to
P (P has to stand by and may take several years to deal with all cross-cl before P
can actually lit his issue – LASA) and don’t want to force D to bring in add’l
parties when they are being haled into ct in the first place.
ii. Responses to cross-claims can be treated either as 13(a) compulsory
counterclaims (b/c once has to face a cross-claim, becomes an opposing party) or
13(g) permissive cross-claims (b/c still co-parties to original action).
iii. If P or D wants to add a 3rd party to a countercl or cross-claim, must use
13(h) + rule 20.
CLASS ACTIONS: Key ques: Is c/a 1) the mother of all joinder rules or 2) is the class a sep legal
entity (like a corp)? In dealing w/ class actions, courts must balance advantage of efficiency of a
single adjudication with the notions of fairness/due process concerns of absent class members
whose claims may be extinguished by action.
1) CERTIFICATION REQUIREMENTS and DUE PROCESS CONCERNS:
a. 23(a): Prerequisites for c/a: a court will not certify suit as c/a unless these prereq met,
and party seeking c/a cert has burden to meet each requirement. *Note: Representatives
must be member of class. Also though not specifically required by 23(a), need
definition of class before bring c/a – must be precise, objective, and presently
ascertainable (not too broad, too specific, too vague, or too amorphous).
i. Numerosity: Class so numerous that joinder of all members impracticable. No
absolute rule but usually >40 enough but <25 not – also look to things like
geographic dispersion of class and size of ind. claims (smaller the better).
ii. Commonality: There are ques of law/fact common to class. This is a broader
requirement than (b)(3) below – only defeated if differences in factual
background of each claim would affect outcome of legal issue.
iii. Typicality: claims/ defenses of representative are typical of those of class.
(Falcon – ct said claim of discrimination in promotion prob neither typical nor
adeq rep of claims of disc in hiring – but suggests that if rep had pled and shown
evidence of across-the-board disc [which permeates every aspect of employment
practices, including both hiring and promotion] might have been enough).
iv. Adequacy of Representation: representatives will fairly and adequately protect
interests of class. Represents due process concern that ought not to bind parties
who have had no literal day in court unless adequately rep by figurative day in ct.
Representatives with different and/or conflicting interests do not adeq rep
class (Hansberry – in first suit rep wanted to enforce covenant whereas
Hansberry wanted to invalidate covenant so Hansberry could not have been adeq
rep in first suit) (Amchem – diff interests b/t asbestos Ps with manifested injury
vs. exposure-only). Can also look to things like if class rep gets relief for self that
rest of members don’t – seems inadeq (Gonzales note case where class rep got
back-pay but rest of members didn’t and ct said inadeq rep). ***There are
always 2 looks at adeq of rep: 1) initially by trial ct to see if 23(a) prereq
satisfied, and 2) after the fact, for app ct to review that class rep actually did
adeq rep before absentees claims/issues precluded. This is true whether (b)(1),
(2), or (3) class, but now some cts reconsidering and saying (b)(3) clases can’t
challenge adeq rep after the fact b/c already had notice, and options to opt-out,
stay in, or enter appearance through attny. Still, two looks makes more sense.
1. Adeq of Rep and Issue Preclusion: A defect in adeq of rep could leave
c/a judgment vulnerable to collateral attack. A finding of no adeq rep in
c/a means no claim/issue preclusion and absentees have due process
right to bring sep suit (Hansberry). This is true even if absentee knew
about c/a b/c no mandatory intervention rule (Martin) – in c/a cts
don’t require class members to bring ind claims arising from same trans
at risk of their claims being precluded b/c would defeat c/a commonality
requirement (different than normal claim preclusion where any claim
arising from same trans, even if never litigated, is precluded if not
brought with first suit).
2. To avoid collateral attacks and prob of no claim/issue preclusion, c/a
Ps should seek to join 3rd Ds who might have same interest as D by
Rule 20 and seek to designate Ds as class so that both sides of a
conflict are adeq rep and avoid collateral attack from either side.
(Hansberry – if in first suit, P had sought to designate Ds as class, then
Hansberry’s interests in invalidating covenant would have been adeq rep
but as it stood only Ps were designated as class) (Martin – it the black
firefighters had joined white firefighters as 3rd Ds in suit against City,
and sought to cert Ds as class, then whites could not have brought sep
suit b/c would have been part of class whose interests were adeq rep and
claim preclusion/issue preclusion would apply).
b. 23(b): Types of C/As
i. (b)(1): Prejudice C/As: Notice discretionary; no opt-out
1. (b)(1)(A): Usually cases seeking to declare policy into future: sep
claims would risk inconsistent adjudications that would establish
incompatible standards of conduct for D.
2. (b)(1)(B): Usually limited-pool-of-funds cases where D has limited
pool of funds to satisfy ind claims: risk of individual claims disposing
of or impeding other individual interests, usually b/c of depletion of
funds/ins policies. To get limited-fund cert, must truly have fixed
upper limit ahead of time – can’t use negotiated upper limits as part
of settlement agreements to say limited funds (Ortiz).
ii. (b)(2): Injunctive C/As: cases seeking final injunctive or declaratory relief
[i.e. asking D to stop some bad practice] – not for dmg awards. Notice
discretionary; no opt-out
1. Hybrid (b)(2) Classes: sometimes cts allow small amt of $ claims (not
dmgs but equitable restitution/back-pay) together w/ injunctive relief. In
these cases, adeq rep seems insufficient for due process right to lit money
claims for back-pay, etc, so even though Rule 23 does not require
notice in these situations, c/l has interpreted Rule to say notice
discretaionary only when purely injunctive but in hybrid classes,
need notice before due process rt to lit money precluded. (Johnson
note case – only 5th circ case but reasoning good).
iii. (b)(3): Damage C/As: Usually mass tort litigation. Notice is mandatory and
must provide choice of opt-out, stay-in, or enter appearance through attny.
2 requirements for (b)(3) cert (decided by four factors):
1. Predominance: common ques of law/fact predominate over ind ques
2. Superiority: c/a superior to sep ind claims
a. Factors: members’ interest in controlling own suit individually
(when potential dmg awards high, more interest in ind suits=high
likelihood of opt-out=c/a would be futile); extent and nature of
any individual lit already begun; desirability of concentrating lit
in particular forum (hard to figure out what would be a good
forum when members are from all over); and difficulties in
managing c/a (when members from so many juris, maybe all
would have diff choices of law, and if variations in state law then
commonality would disappear – Causey and Castano). Note: to
avoid choice of law probs, can bring 50 state suits so more
manageable and also get citizenship basis for pers juris so avoid
having to ensure all members had notice and could opt-out so as
to consent to pers juris.
b. Other Considerations:
i. Fraud Cases requires finding of individual reliance
might be problem for predominance b/c individual issues
would predominate over common issues rather than vice
versa (Castano).
ii. Immature Torts: C/As based on new tort theories might
face superiority problems b/c courts could say no context
to assess superiority and risk of millions of individual
claims is purely speculative (b/c such new tort theory)
whereas risk of skewed outcomes / pressure to settle that
come w/ C/A cert is big so can’t say C/A superior to ind
claims. (Castano – big tobacco lit; C/As v. fast food for
making kids fat, etc).
c. 23(c): Notice to members
i. (c)(2)(A): Notice Discretionary for (b)(1) and (b)(2) classes, and no opt-out
for absent members. Due process satisfied in these cases even w/out notice b/c
classes much more homogenous than (b)(3) so absentees bound even w/ no
notice and no opt-out right. Due process relies only on adeq rep requirement
to protect absentees.
ii. (c)(2)(B): Notice Mandatory for (b)(3) –
1. Requires “best practicable notice” including “ind notice to all
members who can be identified through reas effort.” Sup Ct has ruled
that only 1st class mail satisfies this – can be expensive to send 1st class
to all members and attny seeking c/a cert bears cost of providing
notice (though can get reimbursed from recovery funds if win).
2. Also requires giving absentees option of 1) opt-out, 2) stay in , or 3)
entering appearance through attny. But if absentees choose to stay in,
lose right to bring sep suit by claim preclusion and issue preclusion.
3. Due process relies on notice, 3 options for absentees, and adeq
representation – so even if absentee does not receive actual notice, okay
as long as “best practicable notice”/first class mail given (Mullane) and
due process still protected by adeq rep.
iii. There are always 2 looks at adeq of rep: 1) initially by trial ct to see if 23(a)
prereq satisfied, and 2) after the fact, for app ct to review that class rep
actually did adeq rep before absentees claims/issues precluded. This is true
whether (b)(1), (2), or (3) class, but now some cts reconsidering and saying (b)(3)
clases can’t challenge adeq rep after the fact b/c already had notice, and three
options. Still, two looks makes more sense.
iv. 23(c) also requires ct to define class and appt attny after c/a cert, and allows
ct to divide into subclasses or only cert as c/a for particular issues.
2) PERS & S/M JURIS / VENUE
a. S/M JURIS: Fed ques are no prob, and for d/j, as long as one claim satisfies div and
amt in contr, can get s/m over whole c/a b/c same “case” for §1367(a), and §1367(b)
does not retract – no mention Rule 23. Probably drafters never thought §1367 would
apply to c/as but by plain language it does. Note: if no cl satisfies amt in contr, no suppl
juris b/c still can’t aggregate multiple Ps’ claims under §1367. (Snyder).
b. PERS JURIS: In C/As w/ predominantly or wholly money dmgs, absentee class Ps
consent to juris by not opting out as long as have also received notice and adeq rep
(Shutts). This applies easily to (b)(3) classes but also could include (b)(1)(B) limited
funds claims, so some state cts refuse to certify as (b)(1)(B) b/c no required opt-out
makes harder to get pers juris. We tolerate the risk that members who don’t opt out but
would not have opted-in are bound by judgment b/c these members are not losing as
much as nonres Ds (only losing right to collect $ but no risk personal liability/them
having to pay money). The procedural checks of notice and adeq rep correct for problems
of absentees who don’t really know what they are consenting to – b/c personal juris spans
both procedural and substantive aspects of due process, cts saying if you give enough
procedure (notice and adeq rep), okay to just have minimal consent. Note: absentee who
received no notice (so no chance to opt-out=no consent) and who also does not have
min contacts or citizenship in forum, are not subject to pers juris so are excluded
from class! Only other options to get pers juris if can’t get consent is to 1) bring 50
state suits so there is citizenship basis for pers juris and would also avoid choice of
law probs / c/a would be more manageable, or 2) bring in fed ct, basing pers juris on
citizenship or minimum contacts with the United States.
i. Shutts no opt-out= min consent to pers juris rule does not apply to D classes
or (b)(2) P classes. As for (b)(2) injunctive classes, cts have not yet decided how
or if Shutts applies – whether need to provide opt-out/consent for pers juris or
whether b/c of power judges have over injunctions, don’t. Easier to avoid all
this and just bring in fed ct or bring 50 state suits.
3) SETTLEMENT CLASSES: Can get certification purely as settlement class. But Rule 23(e)(2)
requires that a court hold a hearing and find that settlement agreement is fair, reas, and adeq,
before it is approved and held to be binding on class members.
a. Sup Ct has interpreted Rule 23 to require that cts go through 23(a) and 23(b)
analysis even to certify just as a settlement class. However, can disregard trial-specific
analysis such as questions of c/a manageability b/c will be no trial (Amchem – asbestos
c/a where ct found disparities between interests of members w/ manifested injuries vs.
those w/ exposure only = no adeq rep, no typicality, and no predominance = no cert as
settlement class).
b. Normally if P class wins c/a, ct determines how to distribute award among ind class
members. Ct may use second trial to determine ind dmgs or use “sampling” to
statistically determine likely ind dmgs. Cts may also use “fluid class recovery” to say lefover money after all members paid may go to charity, etc, but not back to D.
4) PRECLUSIVE EFFECT OF C/A JUDGMENTS: Class members whose interests are adeq
rep are bound by both claim preclusion and issue preclusion – so can’t bring individually
same claim or diff claim involving same issue. But sometimes, primarily in discrimination
cases, individual claims of discrimination are not precluded by a C/A which alleged pattern-wide
discrimination. First, there is no issue preclusion b/c the issue of individual discrimination was
never litigated in the c/a (even though the evidence used to prove patternwide disc and ind disc
might be same), and if issue never litigated can’t be issue preclusion. Second, though normally
claim preclusion would say that sep claims based on same trans are precluded even if never adjud
b/c should have been brought w/ first suit – in c/a, don’t require members to bring all individual
claims arising from same trans at risk of claims being precluded b/c this would defeat the c/a
commonality requirement –no mandatory intervention rule. (Cooper).
BINDING EFFECT OF DECISIONS: No one bound by judgment unless party to a lawsuit or
member of a class whose interests were adeq rep in a c/a – due process rt to day in ct (figurative day
in ct for c/a)!!!
1) CLAIM PRECLUSION: bars parties from bringing 2d claim based on same trans as 1st
suit, even if on diff legal theory – can’t split legal theories, remedies, defenses, etc for same
trans – so even if claim never adjudicated, it is precluded b/c ct saying it should have been
adjud in 1st suit. If P wins in first suit, any additional claims of relief or any of D’s add’l
defenses are merged in judgment and therefore precluded from being brought in subsequent
litigation. Similarly, if P loses first suit, entire claim, including any evidence, theory, or remedy
not advanced in first suit, are barred by judgment and are therefore precluded as well. Only get
one bite at apple – second claim will be precluded even if first judgment is subsequently
overturned/reversed so moral of the story is parties should always stick with their lawsuit and
appeal rather than trying to bring second suit (Moitie).
a. 3 requirements for claim preclusion:
i. Only applies to final, valid, and on merits judgments
1. Note: Rule 41(b) which provides that involuntary dismissals other
than 3 exceptions (lack of juris, improper venue, or failure to join a
party under Rule 19) operate as “adjud on merits” only bars re-filing
in same ct and does not bar filing of a new suit in diff ct – Rule 41 is
not the same as claim preclusion!
2. 12(b)(6) dismissals (unless specified “without prejudice) or other
preliminary defects do fall under Rule 41(b) so if Ps don’t succeed in
persuading court to specify “without prejudice” and don’t appeal these
dismissals, they will be barred from re-filing suit in same court (Rinehart
and Anguiano). But P will not be barred from filing new suit in diff ct
(no claim preclusion) unless first suit was in state court or in fed ct
by d/j and state law provided that a 12(b)(6) dismissal that does not
specify “w/out prej” = claim preclusion . (Semtek – Sup Ct wanted to
stop cts from equating 41(b) w/ claim preclusion and instead let states
control their own claim preclusion laws).
ii. Parties in 2d suit must be identical to parties in 1st (differs in issue preclusion
where can have nonmutual issue prelusion)
iii. Only applies to claims which were or should have been decided in first suit
(claims arising from same trans).
1. When conduct which is subject of 1st suit continues after judgment,
subsequent conduct is new “trans” so no claim preclusion (but issue
preclusion might apply to issues of fact/law in first suit) – (Russell – 2d
claim based on same patent as 1st suit was not precluded b/c was based
on a subsequent infringement=diff trans, but D tried to argue that issue of
patent validity was precluded) (Patterson – 1st and 2d claims both against
same D and both for trespass but 2d claim not precluded b/c was based
on subsequent trespass/D cut trees 2d time=diff trans, but issue of P’s
title to land was precluded – only way to avoid I/P and avoid continuous
trespass would have been for P to change issue by getting quit claim so
now new title issue).
b. “Trans” that include both fed and nonfed claims: when can bring related fed and
state claims together and get suppl juris, should do so and if don’t precluded from
bringing state claim separately (Moitie). If for some reason can’t get juris in first
action, say first action in state ct and can’t bring in fed claim b/c exclusive fed juris, some
cts will allow sep fed claim but some cts still preclude these claims b/c don’t want Ps to
try to get two bites at apple by bringing claim in court where know can’t get juris over
related claim.
c. Splitting Remedies: Can’t sue for partial recovery and try to sue later for rest so if P
has a right to collect all debt at one time, must sue to collect entire debt all at once – and
if don’t, the later claim will be precluded (Jones). Exception: no claim preclusion when
debt based on a series of negotiable instruments (series of notes or bond with
multiple interest coupons) – P can sue sep for each instrument to improve negotiability.
d. Erie: to determine claim preclusive effect of prior d/j action, fed cts ordinarily apply
law of forum state of first suit unless conflicts w/ fed interests (Semtek – ct went by
CA law which said dismissals based on CA statute of limitation were not “adjud on
merits” and so did not preclude Ps from bringing claim in another state w/ longer stat
lim).
2) ISSUE PRECLUSION: bars parties to suit (and non-parties) from re-litigating issues that
have been raised and decided in prior suit .
a. Requirements:
i. 2d suit involves same legal/factual issue as 1st (even if issue is part of diff trans)
ii. Judgment in first suit must have been valid, final, and on merits (unless issue
is exclusively procedural)
iii. Issue raised in first suit must have been actually litigated and decided – can’t
have issue preclusion if issue never litigated (unlike claim preclusion)!
iv. Determination of issue must have been necessary to ct’s judgment in 1st suit.
1. Problems arise when first suit argued multiple issues:
a. If general verdict/no findings and judgment could have been
based on either ground = no I/P for either issue b/c can’t tell
which issue judgment based on unless can tell by extrinsic
evidence which issue decided (say claims were for two different
dmg amounts so can tell by dmg award which issue decided) –
but such extrinsic evidence rare (Russell). Neg Hypo: If D
answers 1)not neg and 2)P contributory neg and D wins by
general verdict→no I/P for either D’s neg or P’s neg b/c can’t
tell what was decided in first case.
b. If special verdict but only one finding supports verdict and
other is inconsistent w/ verdict = no I/P for inconsistent
finding but yes I/P for consistent one b/c can tell that judgment
only based on consistent finding (Rios). Neg Hypo: D wins by
special verdict where jury finds 1)P was contr neg and 2) D
was neg→yes I/P for P’s neg b/c judgment must rest on that but
no I/P for D’s neg b/c finding of D’s neg inconsistent w/ verdict
for D and D can’t appeal issue b/c winners can’t appeal.
c. If special verdict where findings each independently support
decision = Patterson says yes I/P for both but Restatement
says no I/P for either. Patterson says judgment stands on both
issues (jury could not have arrived at verdict w/out each of
findings) so I/P for both. Whereas Restatement says no I/P for
either b/c can’t tell if jury really paid attention to both issues or
just decided one and quickly filled in add’l finding to support
verdict. I think Patterson rule makes sense but maybe b/c I am
more trusting of juries. I just think juries pay attention to the
findings they make, and unless they are inconsistent, we should
trust that they understood what they were doing and both issues
actually decided.
v. Mutuality of parties is not required for I/P but several limitations when
nonmutual I/P used offensively (when P seeks to preclude D from re-lit issue
which D previously litigated and lost against diff P) b/c offensive nonmut I/P is
such a powerful doctrine / can allow 2d P to automatically win a substantial part
of suit without having to litigate (sometimes issue so big that if precluded, all P
has to prove is damages) and 2d P faces no risk of I/P being used against him b/c
he has due process rt to day in ct – offensive I/P is a one-way street so need
limitations. Parklane illustrates these limitations:
1. Wait-and-See / Side-sitting Ps Concern – Ask could P have joined in
prior suit?: Defensive nonmut I/P (where D seeks to prevent P from relit issue after P already litigated and lost against diff D) promotes
efficiency b/c incentivizes P to join all potential Ds rather than risking
multiple suits over same issue – this is why cts began allowing nonmut
I/P in first place. But offensive nonmut I/P does not promote efficiency –
actually discourages joinder by incentivizing Ps to wait and see how
prior suit turns out rather than intervening – b/c 1) if 1st P wins, 2d P can
automatically win w/out having to lit major issue, and 2) if 1st P loses, 2d
P still benefits b/c D can’t use I/P against 2d P who never had day in
court. But if 2d P could not have joined in 1st suit, wait-and-see
concern goes away – this is the case when 1st suit is brought by govt
agency (i.e. SEC) b/c private parties can’t join in so govt suits end up
being very powerful b/c often allow subsequent I/P for major securities
issues and private Ps only need to prove damages (Parklane).
2. Compromised Verdicts – Ask does first suit look fishy?: If first suit
looks like a compromised verdict - e.g. suit was for $100M and jury
finds for P but only awards $25K, looks like compromised verdict so
maybe no i/p for 2d P.
3. Prior Inconsistent Judgments: if there have been multiple, consecutive
suits against same D, each fully litigated but w/ inconsistent judgments,
maybe no i/p b/c can’t tell which judgment is the aberration. But if use
i/p from beginning after 1st suit, can get several successful consecutive
claims by diff Ps against same D (don’t need c/a) – note: this is why
Professor Currie’s article says should not get i/p even after 1st suit b/c
equally no way to tell whether 1st suit is the aberration (i.e. if w/out i/p,
rest of consecutive suits would turn out differently). As result of
concerns like Prof Currie’s, cts may not allow i/p if 1st suit found to have
any error, even harmless error (Faucett note case- 1st suit judgment
affirmed on appeal but b/c app ct found harmless error, 2d ct would not
allow offensive nonmut i/p).
4. Full and fair opp for D to lit vigorously in 1st suit – ask if any
procedural difficulties in 1st suit (like choice of forum probs), or 1st suit
for much smaller claim so D didn’t take as seriously – if so, maybe no
i/p.
5. Also ask would D in 1st suit have expected 2d suit? If not, doesn’t
seem fair to allow i/p in 2d suit but some cts allow i/p even when 2d suit
unforeseeable as long as D had full/fair opp to lit vigorously in 1st.