p 1, Larry Lee, Civ Pro II Outline - Morrison
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Overview of Morrison Method
Look up rules: what purpose do they serve? What exceptions are there?
Think motives: Why lawyers plead as they did?
Think interests: Of parties? Of Court? Of other litigants in different cases (economy)?
Think about rules: Why one-sided rule? Or does it offset advantage to other side?
UNITS 1-3: PLEADINGS
AM Summary of Unit
1. Complaint = starts lawsuit, don’t ask it to do more; lets D to answer minimalist complaint
a. Fraud & mistake provisions consistent w/ this notion
b. When rules clear, cts not allowed to make exceptions (e.g., Worthington)
2. Motions to dismiss – should be rarely granted
a. Must assume P can prove all underlying facts; only use for pure question of law
i. But hidden questions of fact
b. Motion to dismiss may focus P’s complaint; question is if it need motion or not
3. Creation of Fed Rules of Civil Procedure
a. Statutes: passed by Congress (e.g., subject matter jurisdiction)
b. Rules not = statutes; they are merely authorized by statute (28 USC 2072)
c. Rules promulgated for comment, they are set by committee
i. Sent to S.Ct. for consideration, “passed” by May 1; unless Congress
passes statute, then Rule takes effect on Dec 1
ii. Congress may overturn rules, but no independent requirement to review
1. Congressional silence is not ev. of their approval of rule
d. If conflict, statute overrides rule; rule = “lower form of law” (delegated authority)
Pleading Fraud
1. Particularity requirement for fraud, Denny v. Carey (512)
a. Why have it: provides D notice b/c just alleging fraud doesn’t tell D what to
defend against
b. Facts: Fraud case. Ps owns securities issued by D (First Penn, accountants,
executives). P sues b/c he argues he wouldn’t have committed
c. Issue: P may not have satisfied R9(b); must state w/ particularity basis for fraud
i. Rule 8(a): complaint must be simple; no facts or evidence included
1. Probably can write complaint w/o ev. but not w/o facts
2. Rule 9(b) = exception to R8; must include more than in R8
3. Question is how much more is more is probably case specific
d. Ct’s reasoning: Fraud easily to allege, can wrongfully damage P’s reputation
i. AM: Ct. wrong. Not good reason for particularity. Reputation not framer’s
concern, since 9(b) treats fraud & mistake same & mistake not reputation
ii. Look at next sentence: “Malice, etc. … may be averred generally”
iii. Not much required, though Fraud has nuisance value (forces Ps to settle)
iv. See Form 13 – talks of fraudulent conveyances (but not the same as fraud)
e. Burdens placed on P by requirement: difficult, b/c D has most info to prove fraud
i. Look at allegations:
1. Accrued interest but no payment on defaulted loans
a. Must know which borrowers have defaulted, etc.
p 2, Larry Lee, Civ Pro II Outline - Morrison
b. Sounds like ev., but complaint probably puts D on notice
(Is this intent behind R8/9?): knows which loans P means
2. Foreclosures – probably selling foreclosed props at profit to
dummy company w/ no $$
ii. But just alleging fraud not enough to tell D what to defend against
iii. Likely no problem for D to prepare defense in case based on complaint
1. Motion to dismiss won’t likely succeed here
2. Could move for summary judgment;
a. If P doesn’t include specific facts, not enough
b. With specific focus, summary judgment more possible
3. Specificity may make litigation more difficult
f. Complaint mainly meant to put D on notice
i. More ev. in complaint (1) judge less likely to dismiss (2) shows P knows
something (3) D must indicate if agree or disagree w/ particular facts
ii. Pleading can be crappy: allege more later, D more prepared if plead more
1. May lock-in complaints (but P can amend complaints later)
2. Don’t assume b/c P don’t include something in complaint that
won’t have to disclose allegation early on
g. Heightened pleading requirement in, say, Firestone tire
i. May kill litigation if P must specifically allege for product liability – can’t
ii. But countervailing consideration: (1) fraud easy to allege (2) lets D answer
iii. Tradeoff btwn protecting Ds from dumb suit & not make hard for P to sue
1. Compare product liability: more weighted towards letting P start
h. Rules not neutral, clearly weighted towards policy goals
i. Suppose D had won motion in Denny pleading was not specific enough [??]
2. Civil rights cases (p517)
a. P sues city, cops: city = more $, P wants policy change, didn’t know cops’ names
b. Cts. (US v. City of Phily) ruled can’t sue city w/o more specificity
c. If cop drives city car & negly. hits person, city answerable under respondeat sup.
d. Leatherman v. Tarrant County (US 1993)
i. Other cts. can’t require particularity in pleading civil rts. just b/c “cities
shdn’t be sued”; must follow 9(b), only require partic. for fraud, mistake
ii. Congress passed 1995 Securities Act, made it much harder to allege fraud
Pleadings, Damages & Relief
1. General points:
a. Some say only need incl. damages to show meeting juris. amt
b. Could just amend pleading to not get locked into original damage pleading
i. Rule 15(b) – can amend pleading to conform w/ ev.
ii. Rule 54(c) – can amend during trial to conform w/ ev.
iii. To adjust ad damnum, show old lower $$ & new higher $$ were reas.
1. To avoid this, may make up large damage clause
c. Could have sideshow to determine damages, but does this make sense?
i. 15(a) – generally says shouldn’t have sideshows
ii. Issue: will D be disadvantaged if change damage amt. (from $1K to $1M)
iii. But P would argue discovery should have alerted D to change in damages
p 3, Larry Lee, Civ Pro II Outline - Morrison
d.
e.
f.
g.
h.
iv. Complaint should not restraint P or D – just meant to get ball rolling
Don’t think about rules in isolation – don’t work independently, but together
Purpose of complaint meant to put D on notice & start case, not much more
i. Fraud clause has same purpose as general notice-pleading
Read rules carefully, think about how the words fit together
Facts tell us about law in context
i. In Denny, facts helped show “how much more” needed to plead fraud
instead of normal case
Value judgments hidden in procedural rules (e.g., value in notice pleading = easy
for P to get into ct; or value for making it harder to plead fraud)
Motion to Dismiss
1. American Nurses’ Association v. Illinois (7th Cir., 1986, p 530)
a. Nurses included long complaint & comparable worth study b/c:
i. Trying to impress judge, D, press
ii. Though long study legally irrelevant, OK to include non-claim items
b. Judge not likely to read comparable worth study. Why even skim complaint?
i. Wants to know if he is likely to know something about case
ii. Make sure there’s no conflict of interest
iii. Scheduling, some curiosity
c. Difference between parties now case has been tossed out by Dist. Ct.
i. D arg: P’s claim useless, comparable worth claim useless
ii. P argues comparable worth not only claim: it’s just ev. of claim
(intentional wage discrim since knowing not enough)
iii. If P’s case dismissed, seems harsh to throw case out & stop P re-litigating
d. Why include comparable worth study? What did P think of comp. worth study?
i. Maybe thought IL’s knowledge of comp. worth study = ev of discrim.
ii. OR thought (1) could win comparable worth case, (2)more probative than
ct. did (3) study = political & legal doc (4) trying to influence to judge
1. Posner: “influencing judge” bad (But that’s lawyers job!)
iii. Could have issued press release instead of attaching doc to complaint OR
could have described study in one para AND tell judge why it’s significant
e. D argues that study could be bad, etc.
f. D benefits from move to dismiss (instead of asking P to clarify)
i. Got comp. worth study cleared; Posner made clear what’s actionable &
not (e.g., knowledge is not enough)
ii. Got smaller case, time
iii. Against P: wore down P’s lawyers, forced to spend $$, could smoke out
P’s theory, force P to give up at Cir. Ct.
iv. If docs show willful discrim., want to stop discovery
v. May not be able to deny all allegations in P’s complaint
vi. Probably D understood what this case was all about
g. P benefit: Ct. clarified precisely what they need to prove to win case
h. Posner: doesn’t dismiss; enough allegations look like intentional discrim.
i. Gives comp worth study benefit of doubt b/c can’t tell if it’s dumb or OK
i. “in support of the claim”
p 4, Larry Lee, Civ Pro II Outline - Morrison
i. Ev. must relate to claim in complaint, e.g., intentional wage discrim. btwn
men & women in certain profession
ii. If you don’t have to plead facts per Rule 8, do you have to plead the law?
iii. Could make P amend complaint to show what law D broke, but P needn’t
1. P may look stupid; but shd know, anyway, what law he’ll use
iv. D will probably force P to disclose even if he loses motion to dismiss
j. Note: P doesn’t cite Equal Pay Act in complaint b/c negates comp. worth study
(Act only requires equal pay for equal work, not = pay for comparable work)
i. Very difficult to decide comparable worth study
k. Now assume comp. worth is valid legal theory. D would have killed case by…
i. Alleging comp. work = paid equally & no differential wage at all
1. E.g., argue pay based on seniority & men were just more senior
ii. Could move for summary judgment
l. Conley: complaint allegations = invalid legal theory if facts can never back claim
m. In 12(b)(6) – D says to P he got law wrong
i. Happens b/c much is unclear in law, lawyer might get it wrong
ii. Also tactical reasons to do motion to dismiss, even when law is clear
n. Nurses unusual in significant aspects of case can be dealt w/ on motion to dismiss;
partly Posner smart & can narrow controversy w/ knowledge of law
i. Usually, at stake = if facts apply to valid legal theory, not theory itself
ii. P 530 – many wasted hours on motion to dismiss
o. Other motions can be made instead of having to answer
i. 12(b) has other ways to dismiss (12(b)(4) and 5 are indistinguishable)
ii. 12(h)(1) – lack of personal jurisdiction or venue
1. Movant must include in motion early on or it’s waived
2. Must determine juris. at beginning or lose it
a. You can consent to it;
b. Why waste the court’s time
c. Personal juris. inconvenient, so should object at beginning
d. Also, this = curable defect; can just file in different ct.
iii. Others, like PJ, joinder, unconnected w/ merits shd be done at start of case
iv. Note: complaint not likely to have info. on personal jurisdiction
1. Need discovery to decide personal juris
2. Contrast: 12(b)(6) requires no fact development, etc.
v. Motion to dismiss = pleading defect; unless ct. lets P amend, res jud. bars
vi. Summary judgment = on facts of the case
2. Venue & personal juris (PJ) or Venue, PJ’s cousin
a. Easier to determine venue than PJ; venue tends to be objective (but not always)
i. E.g., tends to be residence of D (easier than citizenship)
b. Why venue requirement on top of PJ
i. A judgment: though case can be tried, many reasons not to try there
ii. Inconvenient to parties, witnesses, etc.; not just D wants tried elsewhere
iii. Transfer to another ct. within fed system (can’t transfer out of state)
1. Even if venue proper, 28 USC 1404 still allows transfer for justice
iv. Can transferred anywhere case could have been brought
v. Can also be brought anywhere P & D agree to have it
p 5, Larry Lee, Civ Pro II Outline - Morrison
vi. Under 1404a, moving party has heavy burden to transfer
c. Forum non conveniens (FNC): says venue & PJ proper but ct. won’t hear case:
i. Discretionary, won’t dismiss unless another forum, in theory, is adequate
ii. Usually involves foreign P, hurt by US-made product, brings suit in US
1. P hopes to benefit from law, jury system & assets can’t get at home
2. Typical D wants transfer b/c likely award larger in US than abroad
3. That P will get less in foreign venue not enough to overcome FNC
4. Easier for judge to transfer than say no PJ – requires no discovery
a. In PJ motion, D denies contacts, P must ask for discovery
Amending Pleadings
1. General Rule 15 overview
a. Can amend w/o permission 20 days after initial pleading if no response yet filed
b. After depends on judge, other parties: “leave…freely given when justice requires”
c. Sideshows and circuses: another sideshow needed to tell if “justice requires”?
i. Judges don’t pay much attention to “requires”; it’s an odd word here
ii. Look at if someone will go thru hardship;
2. Relation back: Amend & SoL, Worthington v. Wilson (560, USDC Central Dist. IL 1992)
a. Facts: P didn’t know names of cops who beat him, but not hard to get names from
booking report (didn’t get names b/c lawyer filed late or client sued late); P put “3
unknown cops” on complaint; amended & added cops’ names after SoL ran out
i. P hoped to overcome lack of name & SoL problems by…
1. Use discovery to find who officers are
2. Move to amend & add names in 120 days of filing complaint
b. Schiavone v. Fortune (US 1986, p 561): Sued Fortune for libel; but not legal
entity – Time, Inc is; by time knew to amend, SoL ran out (no notice before 2 yrs)
i. Doesn’t help anyone, b/c only let amend if D had actual notice during SoL
ii. Rule 15 changed in response
c. Requirements for relation-back
i. Related to same transaction/occurrence (no question of this in Schiavone)
ii. Under Schiavone & new Rule 15, D must not be prejudiced by amendment
– i.e., not enough time to gather ev. to mound sufficient defense
1. What is prejudice? Maybe to new Ds added by relation-back
iii. New Ds don’t expect suit after SoL, don’t have same ev. to mount defense
1. *Delay: what happens in 120 days may not have if sued right
person at right time
2. Ex. in Schiavone, what if Time had policy of destroying of record
after 2 yrs., w/o bad intent, burned key docs so D couldn’t defend
a. Or what if witness moved away during 120 days
iv. D has hard job to show prejudice, so P will always satisfy non-prej.?
1. Seems sensible rule; doesn’t say relation-back can never prej. D
2. Liberal amendments b/c don’t want cases decided on technicalities
d. Rule 4(m): before it, rules themselves gave P no time limit to serve complaint
i. Rule addressed this: complaint filed & judge busy, but nothing happens
e. Rule 15(c)(2) – among other things, permits adding action if related to same facts
i. (c)(3) – problem of relation back, relates to 4(m), tries to ensure notice
ii. Why 4(m)? Moves case along, sets outer limit to providing notice to D
p 6, Larry Lee, Civ Pro II Outline - Morrison
f.
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j.
k.
l.
m.
1. Not problem in Worthington; Ds did receive notice
iii. Is 4(m) really absolute limit?
1. Can extend if legitimate failure by P; unclear under Rule 15
iv. Problem: R15 & R 4(m) may conflict
Ex: suppose P files complaint 60 days before SoL but P doesn’t discover correct
identity of Ds until 90 days after statute (150 days after filing of complaint)
i. P doesn’t get benefit of relation-back
Ex: P files 1 day before SoL, discovers D’s name, serve notice 110 days after
statute – P does get benefit of relation back
i. Difference fair b/c rule says so; justice seems irrelevant
Problem w/ 4(m): last sentence: “does not apply to service in a foreign country”
i. E.g., no relation back at all for service in foreign country
ii. Problem is shorthand, cross-reference (to 4(m)) to accomplish purpose in
15(c) different from 4(m)
iii. Exception makes harder to serve in foreign country, give more time
1. Has nothing to do w/, & is actually contrary to, 15(c)’s purposes
Holding of Worthington: No relation back b/c 15(c)(3) says so
i. Mistake OK, but not if you just don’t know who the D is
ii. From D’s perspective, does it matter why they weren’t named?
iii. Does amendment of R15 after Schiavone help? Or does it hurt
1. Ct. arg: “unknown Ds” mistake doctrine unchanged, so inferred
Congress/ cts wanted to keep it
2. Likely untrue: they overlooked, addressed Schiavone problem but
forgot “unknown” Ds problem, so new R15 ratified old problem
3. Forced by rules to keep bad doctrine (followed 7th Cir precedent)
4. Would other juris decide Worthington differently? May still infer
legis. intent from inaction & not change “unknown D” doctrine
Why did rule writers of 15(c) choose 120 days as sensible for relation-back?
i. If Worthington P knew cops’ names, would get notice in 120 days by 4(m)
ii. Why choose same time for relation back as normal service of process
1. Conforms to expectations under relation-back & notice (hard to
say relation back unfair if you get same time for notice)
2. Odd: using same time created problems described
iii. 15(c)(1), (2): Why matter can’t name D b/c of mistake or other reasons?
Relation-back: 120 days so that person gets same notice as he would have
i. W/ US officers in 15(c)(3): Worthington mistake doctrine doesn’t apply –
can still name & amend unknown agents
Final argument of court: will come back to this on Erie
i. Ds removed to fed ct.: odd b/c seems cops say “unfair trial in own state”
ii. State entities shouldn’t be able to claim local prejudice
iii. Since civil rts. (1983) fed issue, not diversity, let fed cts. adjudicate
iv. Maybe shd ban removal of state entity in state ct. to keep fed docket down
Ct. unfair to P? Yes, but some sense cts don’t like cop brutality cases like these
i. Some suspicion: case brought 2 yrs. after SoL exists b/c P rethought facts
p 7, Larry Lee, Civ Pro II Outline - Morrison
Unit 4-7: JOINING PARTIES & CLAIMS
AM Units 4-8 Summary
1. Rules try to balance efficiency v. fairness specifically for parties & non-parties to suit
a. Efficiency is not completely good – it may be a cost of barring claims
2. Problems: SMJ in fed ct (e.g., complete diversity) PJ in fed & state cts.
3. CCs, indispensable parties, intervention, interpleader – similar in goals & interests
a. Results bit different – come up in different situations
b. As general rule, cts try to get all similarly situated persons in one place
c. Efficiency interest can go crazy, not reflect purpose of rule (e.g., State Farm)
Counterclaims (CC)
1. General: On Counterclaims, aff defs, offsets, recoupments
a. CC seeks affirmative relief, as if D had claim of his own
i. Promotes judicial efficiency: only bring witnesses once, etc.
ii. Aff Def (in civ pro) = e.g., SoL, doesn’t go to merits of controversy
iii. Offsets, recoups: even if SoL runs on claim, can use vs. P to ↓ damages
1. These are not affirmative relief
b. Rule 13(a) makes CC mandatory when it arises from same transaction
i. D may not want mandatory CC b/c prefer another forum
ii. Also D does want to be D; jury sees D differently from P
iii. Rewards P who gets to ct. 1st: lets him force mandatory CC
1. If D cared about claim so much, could have filed suit first
c. Why have mandatory CC:
i. Against: Mandatory = D loses option to sue if doesn’t do it now
ii. For: Countervailing interests to have mandatory CCs
1. Judicial efficiency (but res judicata not always clear; 2nd trial must
interpret result of 1st trial)
d. P doesn’t always want to allow CC
i. Keeps case simple for P – looks better for P (e.g., car crash case, w/o CC,
D can’t admit ev. on how badly he got hurt
ii. Rule 13(a) = values judicial efficiency more than other things
e. Problem: in fed system, what happens when you try to bring CC & can’t
2. SMJ & counterclaims: US v. Heyward-Robinson (2nd Cir. 1970, 587)
a. Big-picture: appellee says no subject matter juris.(SMJ) over CC
i. No problem w/ Rule 13(a): no doubt that both claims = at least permissive
1. If permissive, must have independent basis for federal SMJ
2. One CC okay as fed issue under Miller Act; problem is other CC
ii. Statute conferring SMJ say nothing about CCs
b. Determining if CC = compulsory
i. Ex: car crash; P in fed ct. for $100K (diversity); D CCs for $5K
ii. No independent SMJ over CC, but adding $5K CC to claim doesn’t
undermine efficiency reasons for $75K minimum for fed. diversity
c. Facts: D’Ag = subcontractor on 2 deals (Navy yard = fed, Stelma = non-fed)
i. Argument for compulsory CC: both Ks come out of same transaction
ii. Heyward-Robinson (HR) CCs on Navy Yard & Stelma
iii. D’Ag answers by denying liab. on Navy, CCs on Stelma, too
p 8, Larry Lee, Civ Pro II Outline - Morrison
d.
e.
f.
g.
h.
iv. Trial ct: D’Ag won on both sub-contracts – awarded $63K, divided
claims, held $40K = part of Navy Yard, paid by MD surety
Ct of Appeals
i. H-R arg: no SMJ over CC (but H-R brought CCs!), so must dismiss
Stelma; since both claims inseparable, reverse both & retry Navy Yard
1. Isn’t this just awful?
ii. Should ct. let H-R bring SMJ claim though H-R can always raised SMJ?
1. No arg. claim + CC = judicially efficient. Why let SMJ trump?
Should it be that person who raises CC can’t dismiss on SMJ?
2. But: if D only hints at SMJ, ct. may have duty to look at SMJ
iii. Interests at stake in protecting fed. SMJ
1. Federalism – undermines state cts
2. Judicial efficiency: ltd. number of fed judges & ltd fed. juris., so
adding new ancillary claims in fed ct. = 3rd party waits longer
a. Reason for $75K minimum in diversity
3. But: if P had lost on CC, P could still bring SMJ arg.
Rule 15(c) (“or conduct:”) – what the hell is this?
Majority (Bryan’s) decision & test of compulsory CCs
i. No question that Miller = compulsory CC
ii. Quotes Judge Clark, “absolute identity of factual backgrounds” not
required – need not arise from same counterclaim
1. But “background” really broad, unclear what’s required
iii. Clark again not helpful: “transaction” flexible, also “series of many
occurrences” not dependent on “immediateness of their connection”
“logical relationship”
iv. Case tried before section 1367 (supp. juris) v. No really good attempt to apply facts to rule here
Practically, correct outcome: case = efficient (but cd have tried both in state ct.)
AM Analysis:
i. Judge Bryan’s wrong, focuses on what as proof that there is in fact SMJ
1. Compare Judge Friendly: shd check SMJ on pleadings alone
a. Worst efficiency outcome (try case & throw out on SMJ)
b. So just check pleadings: helps all parties, prevent them
from trying again, don’t clog system
2. So Bryan shouldn’t have looked at ev. at trial if efficiency matters
a. Also, problem is that parties create facts about their case
b. But parties don’t normally creates SMJ, Congress does
c. Parties, by conduct, create SMJ, but they can’t even do this
by consent, so why should they?
d. By making SMJ rely on testimony, SMJ determined by
conduct, not Congress
ii. Friendly – also, ask what if Stelma CC wasn’t plead
1. Suppose Stelma = compulsory CC & H-R didn’t include in answer
2. Ergo, Stelma could not bring it in another lawsuit
3. Broad construction of “transaction,” forcing more compulsory CCs
a. Broad interp. by judges hurts Ds by precluding CCs
p 9, Larry Lee, Civ Pro II Outline - Morrison
b. So efficiency tradeoff w/ potential res judicata effect on
valid permissive cases
iii. Friendly looks at same facts & finds them lacking legal significance
1. But also, on termination, looks at facts, lets parties determine SMJ
2. Does this mean he looks at whether res judicata bars claim to
determine compulsory CC?
i. More on Friendly’s concurrence in Heyward:
i. Reason compulsory CC rule disregards SMJ: SMJ not big deal once suit
starts - already in fed ct.; also, told jury facts, don’t have to repeat
ii. United Mine Workers v. Gibbs – ancillary jurisdiction
1. During Gibbs, no ancillary juris. doctrine
2. Advantage of permissive CC: No downside if don’t bring
permissive case; but in cases where it’s efficient, can bring it
iii. 1367 & Supplemental Juris.:
1. Don’t need Gibbs for CC. Unclear if 1367 trumps Gibbs
2. Use 1367 to decide Heyward: Ask if fed. SMJ over original claim
& what kind (fed question or diversity?)
3. Diversity OK unless other parties destroy it – b/c Congress said so!
a. Parties joined by Rule 14, 19, 20, 24 = no supp. juris.
b. Rule 13 allows supp. juris.
c. Affirms Judge Friendly in Heyward (not a big deal, tho)
4. Rule 23 (class action): Cts. divided on Rule 23 can overcome Kahn
& only named P has $75K requirement & all others in class don’t
iv. Not automatic – need CNOF & ct. discretion
1. CNOF vs. “Substantial duplication of effort” & language of Great
Lakes, Heyward (Note: “case or controversy” in Const. different
from “CNOF” confusing, used in different context)
2. Great Lakes/Heyward (??) says ancillary & compulsory CC =
same [FIND CITE]?
3. At least Heyward’s Stelma action shd be allowed under supp. juris.
v. Overkill or underkill in allowing compulsory CCs
3. Great Lakes v. Herbert Cooper (3rd Cir 1961, 591)
a. Facts:
b. Trial Ct: Ct. dismisses P’s claim on lack of SMJ. Since CC based on antitrust law
(exclusive fed. juris), so since D would brings suit again, trial ct. keeps it
c. App ct: P files original claim as CC again, arguing Ct. must keep b/c it’s
compulsory CC. So Ct. allows P to enter and keep as CC
i. CC Test (593): if CC tried separately, “substantial duplication of effort”?
d. Q: efficiency good reason to keep P’s claim as CC?
i. AM: Test discretionary, hard to measure “substantial” (can’t do b4 trial)
ii. Or “offshoots of same basic controversy” (594) [offshoot of “transaction”]
iii. “Transaction,” “occurrence” must be clarified; offshoot more confusing
iv. “Permitted” (p594) =>confused on compulsory CC
e. (592): D alleges P brought lawsuit to harass; P arg. original claim justified
i. Trial in CC case vs. trial in original claim; must litigate same in both cases
f. Heyward Ct. probably stretching it a bit; less so here
p 10, Larry Lee, Civ Pro II Outline - Morrison
Joinder
4. Rule 19: Provident Tradesmens Bank & Trust Co. v. Patterson (625)
a. 3 Lawsuits:
Name
Cionci (Patterson)
Dutcher
Lynch (Prov)
Harris
Smith
Lumberman
b.
c.
d.
e.
f.
g.
h.
Role
Driver #1
Owner #1
Pass in #1
Pass in #1
Driver #2
Insurer for D (#1)
Status
Dead
Alive
Dead
Alive
Dead
Corp.
City
Non PA
PA
PA
PA
PA
Non PA
i. Lynch v. Cionci (diversity in fed ct.): settled for $50K, but C = penniless
1. Dutcher not named b/c no $$, either
2. Ins. brings defense b/c
ii. Smith & Harris (S&H) v. Cionci/Dutcher/Lynch in state ct.
1. Unclear why Lynch is included
2. Unresolved, sat around; maybe Ds ran out of $/ have good defense
iii. Lynch v. Lumbermans in fed ct. to collect judgment vs. Cionci
Other interested parties aside from Cionci & Dutcher
i. S&H want $$ too – want Lynch to win to get Lumbermans to pay
ii. Lumb. want S&H in to litigate/settle all; if S&H, L claims > $100K
iii. So if S&H not joined initially, not bound to Lumbermans $100K limit
S&H want to be heard to apportion limited pot of $$
i. Even if claim = $50K, don’t want 2nd suit v. Lumb. to > $100K limit
But S&H can’t join D in L vs. L suit b/c they would destroy diversity
i. S&H can join as Ps & can be forced to join as well
ii. Again, “forced” joinder = if they don’t bring suit now, can’t do it later
iii. Lumbermans asks for joinder in S&H
At this point, Dutcher not real player, so his interest in suit:
i. Wants Lumb. to win & ruling that Dutcher didn’t let C use car
ii. But: D could be hit by worst of both worlds: Lumb wins, S&H win suit vs.
Djudgment entered Cionci had permission to drive, so Dutcher = liab.
iii. Hard to tell who Dutcher should root for
1. If Lumb. liab, will pay > $100K, even if they bother Dutcher
2. If Lumb. wins, S&H may come after Dutcher
a. Depends on likelihood Ps can collect from Dutcher
b. D doesn’t try to be party, doesn’t care about suit’s outcome
3. D could sue insurance co (declaratory judgment) to make them pay
Probably Lumberman, S&H want to join Dutcher to case:
i. Dutcher will not ever have enough $$ to pay
ii. Marginal cost of D in case = 0; clearly efficient to join Dutcher
Could have done in state ct: why didn’t they? More $ in fed? Or didn’t think it?
i. No one mentioned Rule 19 until case got to App. Ct.
ii. But no one really cared to join Dutcher – Ps, Ds, insurance company, etc.
Was Ct. of App. overstepping its bounds in enforcing Rule 19?
i. [Compare: Heyward required ct. raise SMJ]
ii. Should ct. raise issue on its own, really?
p 11, Larry Lee, Civ Pro II Outline - Morrison
iii. S.Ct. says protect absent parties – but parties who “of course had no
chance to plead in cts below”
1. In general, S.Ct. right: cts. shd, on their own, protect absent parties
2. But untrue here: Dutcher testified in trials, left out on purpose
i. Ct. allows Rule 19 to be invoked late in case:
i. May need facts to learn what parties absent & indispensable
ii. But: allowing late claims hurts Ps (have judgments they want to protect)
j. Dead Man’s rule: Can’t let live guy testify adversely to conversation w/ dead guy
i. Here, Dutcher could not talk of his conversation w/ Cionci
ii. Opposite rule might be unfair, but not obscenely so, to Cionci
5. 19a, 19b applied to Dutcher
a. Court suggests substantive rights = look at pragmatic concerns
i. R19a = some parties ought to be joined if possible
1. Could have put Dutcher in complaint
2. Ct. can join anyone subject to PJ, SMJ & Venue
b. 4 justifications for joinder (628):
i. (1) Protecting existing parties right to complete relief
1. Can bring parties in (ex: so insurance co avoids double judgment)
2. In theory, Lumb. may suffer double judgment if Dutcher not joined
ii. (2) Absent party rights [i.e. Dutcher]
iii. (3) Interest of outsiders
iv. (4) Relation to res judicata (but 19a avoids res j. questions– “as a practical
matter impede…”)
c. Why bring everyone together despite lack of res judicata effect - efficiency?
i. If question of law – consistency of judgments, precedent (but not res
judicata) against you if start 2nd lawsuit
d. Rule 19b basics
i. 19a party should but can’t be joined due to lack of PJ, SMJ, venue
ii. Ct. weighs & decides; if ruling impairs unjoined parties rts., dismiss case
iii. 4 factors say if party “indispensable” & can’t be joined (not only criteria)
e. 4 interests of joinder
i. P interest in forum: ask if another forum hear case
1. State ct. if SMJ = problem, another fed ct. if PJ = problem
2. Shd P’s preference for forum count?
3. P has interest in keeping judgment
4. Here, PA ct. may = forum but S.Ct. ‘can’t tell’ if another forum ok
ii. D avoids multiple litigation, inconsistent judgments
1. OK to weigh heavily as factor for Lum
a. Lum. = P v. Dutcher (but D v. other parties)
b. Ins. co didn’t raise objection before; ct. says Lum. didn’t
raise at trial; here, App. Ct., not Lum, raised R19
2. But does it matter that Lum. didn’t raise it at all?
a. Unlikely Lum. worried about other interests R19 protects
b. So why did ct. of appeals raising this question?
iii. Interest of outsider: Dutcher not bound by case, so why does he care?
1. Ps may get judgment exceeding ins. policy, may get other assets
p 12, Larry Lee, Civ Pro II Outline - Morrison
f.
g.
h.
i.
j.
k.
l.
a. Dutch still might get sued by S&H from Suit #2
b. May affects his insurance policy
2. S.Ct.: Dutcher unimportant b/c knew about case & didn’t care
iv. Efficiency: adequacy of judgment
1. S.Ct. reads rule “familiar but confusing” terminology of Rule 19;
“public stake” in settling disputes in wholes rather than in parts
2. Is efficiency even more important here than before?
a. Already 2nd suit out there; if 3rd Cir. upheld, fed. ct.
decision vacated & tried case in state ct.
b. But then again, already 2 suits exist: why does it matter?
i. Rule 19 intended to prevent this evil: if fed. case
vacated, then had 2 trials & one was useless
3. Ct. must shape relief to eliminate some problems
a. Limit damages in 2 trials to $100K, withhold in 1st case
b. Here, parties already agreed to limit damages to $100K
Why did App. Ct. decide on Rule 19, despite fact that no parties briefed it?
i. Easy way to dismiss case? M not sure.
Note: S.Ct. decides to rule on Rule 19 merits, where really, trial ct. should
i. Makes some sense: if S.Ct. remands, trial ct. retries & likely appeal again;
then, S.Ct. must decide Dead Man rule, which they ducked first time
Ct.: never says R19 must be raised
i. R12(h) says can raise R19 anytime, but = civ pro rules, not appellate pro.
ii. AM: S.Ct. seems to say can raise R19 anytime, but doesn’t make sense
iii. But: if real prejudice to 3rd party, there would be another person who
would be more prejudiced than person who raised it.
1. Ct. needs to look out for interests of 3rd parties
If 3rd parties can’t be joined, ct. shd reshape case to reduce harm to absent parties
History note: 1st argued in 6/64, next in 6/66; rule change = 66, case done in 8/66
i. S.Ct. assumed new rule applied: new rules have “effective date” provision,
applies to all cases after rule passed unless justice requires otherwise
ii. Sup Ct. took case to make 3rd Cir. apply new rule
Rule of complete diversity caused problem aggravation here
i. Can’t use 1367 (minimally diverse supp. claims OK), b/c it excludes R19
1. But minimal diversity helps others on docket, promotes efficiency
ii. AM: makes no sense to exclude Rule 19 from 1367
But then, wouldn’t this require minimal diversity for all fed. diversity cases?
i. R19 already determined, not ordinary case where parties strategic about
diversity (ex: all try to get in fed ct.), but legitimate interests may be hurt
ii. If R19 & diversity, don’t toss case from fed. ct, but may not have case
iii. Usually, you’re already stuck w/ Rule 19 case in fed ct. – then what?
Interpleader
1. Generally: use to resolves conflicting claims managed by uninterested party (ins. co)
a. Need for special statute of interpleader
i. Typical case (1) disposition of trust or life ins. policies (decedent dies &
claims in will conflict) (2) Multiple claimants to single fund
p 13, Larry Lee, Civ Pro II Outline - Morrison
1. Casebook deals w/ car crashes - not typical interpleader
ii. Unlikely insurance. co. must pay more than policy amount (e.g., double
recovery) but other (late) claimants to limited funds need day in ct.
iii. Other rules don’t solve problem for insurance co.
1. Joinder under R19: probably no PJ here (normally, can’t join)
2. Consolidating cases: State cts. can’t send cases to other juris.
3. Other: Remove? Transfer to fed ct.? Try cases together? Too hard
iv. Interpleader written in 1925 to provide forum & solve these problems
1. Requires minimum diversity, lower amount in controversy ($500)
b. Other reasons for interpleader aside from avoiding double payment
i. Allows D to avoid litigation expenses of defending cases many times
ii. Interpleader provides fed. SMJ; otherwise, only have minimal diversity
iii. Chief beneficiary of interpleader act = D (insurance co., stakeholder)
c. Basis for federal interpleader:
i. Minimum Diversity (Const. only requires minimal diversity)
1. Real controversy btwn claimants, so D’s citizenship irrelevant
2. If Ps all from same state & D from different state, no problem;
only problem is when there are interstate claimants
ii. Doesn’t interfere w/ substantive state law, just procedural statute
iii. Interpleader solve pre-interpleader problems b/c:
d. Interpleader may be brought in any district any claimants reside (28 USC 1397)
i. Note “may be brought” – unclear if suit can be brought elsewhere
2. Due process & interpleader: unclear that fed interpleader solves due process problems
a. Section 2361 can serve anywhere in US
i. US Marshal serves process, stopped in 1970 b/c very time consuming
ii. May still want Marshals to serve – can enjoin other cases proceedings
b. Hypo: Insurance co in NY, one claimant in CA, other claimants in ME & FL
i. NY would bring interpleader in ME, since its closer
ii. Due process problem if Marshall serves process
1. If not insurance claimant but will beneficiary, Ps = no convenience
2. Interpleader takes rt. to sue away from Ps
3. Deprivation of property: if can’t litigate asset, same as taking prop.
4. [Note: Shutts, due process applied to Ps (but differently than to Ds)
c. Other issues:
i. Some federalism interest here: states protecting states rts
ii. But can’t quiet title w/o it: must settle somewhere though inconvenient
iii. Hypo: real estate interpleader btwn ME, CA, FL claimants; ME sues in
ME ct. over NY property
1. Odd for ME ct. to rule on NY property
2. Also odd from due process/ PJ view for CA & FL
3. Shd bring in NY: land is there, & NY has no stake in claim
4. Due process also there, not just to prevent state power grabs, but
also to prevent inconvenient litigation for parties
iv. AM: unclear that shift from state to fed ct. solves due process issue
v. If other cases have already been filed, injunction stops them
3. Random Interpleader study notes
p 14, Larry Lee, Civ Pro II Outline - Morrison
a. Rule interpleader never supercedes statutory
b. Key difference btwn rule & statutory = SMJ
i. 1335, once met requirements = SMJ; R22 = need min. diversity
c. Why use R22 not Interpleader Act?
i. Maybe you don’t make it under Interpleader Act, do Rule 22?
1. In Pan Am, case satisfies both
ii. Rule 22 = need complete diversity, 1335 = minimal (between some Ds)
iii. Does 22 or 1335 require minimum contacts for claimants?
d. Why does Pan Am satisfy statutory and rule interpleader?
i. Does 1335 = true interpleader & Rule 22 = “in the nature of”?
ii. P 656 (Pan am) – venue more restrictive on Rule 22
iii. Statutory interpleader = gives you SMJ, service of process, etc.
iv. Rule interpleader = fed if diversity
v. Sometimes redundant
e. Pan-Am (1960): Insurer wants interpleader but contradicts: give deposit & don’t
care who gets (“interpleader”) but deny liab. (“in the nature of”)
4. “In the nature of Interpleader”
a. Ins. co. can’t, strictly speaking bring interpleader b/c it has claim (don’t want to
pay claim) while at same time determining distribution of claim
i. Cts. say they can bring suits like this
b. Object of interpleader = ensure one payment; irrelevant that ins. co contests liab.
i. Judicial efficiency – might have other suit anyway if insurer couldn’t get
ii. [I thought “in nature of interpleader” means R22 allows such cases]
5. State Farm, Pan Am
a. General issues:
i. Different from typical case b/c no question of who claimants are
ii. Also tries certain different issues – whether drivers are liable, etc.
iii. Ins. cos. may be liable for defending law suit, too
iv. Ins co could win case, so why do interpleader? Why not just fight cases?
1. Might have to defend many suits, could lose multiple times
2. So does interpleader AND defends case anyway
b. S.Ct. said ins co. can’t contest liab. and bring interpleader
i. Dist. Ct. went too far: S. Farm brought interpleader & wanted case in OR
1. Some claimants must reside in OR
ii. Interpleader okay in CA (accident here), but rest of case shdn’t be in OR
iii. Claimants not going to OR; just legal issues involved in interpleader
c. Pan Am: ct. allowed ins. co to bring everyone in LA
i. In Pan Am, no question of inconvenience
ii. But in State Farm, accident in CA, case filed in OR
iii. Venue OK anywhere claimant = citizen, but CA inconvenient in St Farm
d. Ct. held State Farm can do interpleader in OR, but not ordinary tort case
i. Greyhound & drivers all helped if case in OR (accident in different forum)
ii. “Fund itself marks outer limits of the controversy”
1. But is $20K really = limit to this action?
2. Ct. says one D w/ ins shouldn’t skew all else in litigation – p 660
3. We know that without ins policy, case could not be brought in OR
p 15, Larry Lee, Civ Pro II Outline - Morrison
iii. Basically, ct. felt interpleader unfair, meant $20K tail may wag $1M dog
e. Key Q = should ct. keep other non-interpleader actions in same forum
i. Ct. says interpleader to be interpreted liberally
ii. But St Farm use of interpleader statute too far from intent
1. Rule 22 writers’ intent, tried to fix problem: protect State Farm
2. Dist. Ct. saw no limit on interpleader, put all cases in 1 forum
a. No statute or interp. permitted Dist. Ct. to do what it did
3. Congress didn’t intend to let St Farm centralize all cases: = mess,
multiple interpleaders, parties pulling torts into many forums
iii. “Bill of peace” – phrase used three times
1. Not generally bad to centralize torts (ex. plane crash)
2. But the insurance co shouldn’t get to pick forum
3. Would be odd if SFarm could pick forum unrelated to most parties
f. Minimal diversity
i. SCt: Strawbridge unrelated, dealt only w/ diversity stat., not interpleader
ii. In State Farm, SCt decided Const. issue in part I but no one raised as issue
1. Usually on Const. issue, SCt gets someone to represent other side
iii. Q: is interpleader good use of diversity?
1. Interpleader not to stop out-of-state prejudice like diversity
2. But Commerce Clause power applied to civil rights litigation;
3. W/ interpleader, Congress used diversity, applied to other problem
6. Final points:
a. Can’t avoid “Provident” problem if claimants non-diverse (1335 no trump R19)
b. Rule 22 – don’t’ get some advantages of statutory interpleader
c. Don’t worry about Rule v. Statutory on exam or in real world
Intervention (Rule 24)
1. Intervention basics:
a. Burdens of proof of intervention: party must show:
i. Interest in transaction
ii. Interest not adequately represented by other parties
iii. Timeliness: may find out later after trial starts need to intervene
1. Timing tied to shifting events & adequate representation
2. Can = late interventions: (e.g., Smuck, representatives of 3rd party
interest don’t appeal, so they intervene post-trial)
3. Late intervene = stuck w/ trial record, can’t add facts
iv. Party opposing intervention must show intervener already well represented
2. Can’t stop intervention just b/c of judicial economy, Atlantis
a. Facts: Atlantis wants reefs; US claims (1) Ds (3 companies = Acme, Cppedge &
Ray) trespass b/c US owns reefs & (2) D had no permit to build artificial rigs
i. If no R24, Atlantis must bring own lawsuit – this isn’t feasible
1. If US wins suit, Atl sues US thru fed Q SMJ (1345, sue US)
2. If Ds win, Atlantis still must sue Ds (thru diversity/ fed Q)
3. Atl would sue in fed ct (same ct as US v. Ds), consolidate cases
4. But strategy stopped: parties don’t want to add Atlantis’s claims
b. Atlantis arg: intervenes, ands says (1) US has no juris. (2) Ds are trespassing
p 16, Larry Lee, Civ Pro II Outline - Morrison
c. US arg.: opposed to intervention, Atlantis will lose case so don’t allow intervene
i. Arg. confuses intervention & whether US prevails on merits
ii. US wants no intervention b/c stare decisis will make Atlantis 2nd case hard
iii. Atlantis may have better claim to reefs than Ds;
iv. Unclear from case if Ds opposed intervention: maybe bad enough US is
suing; don’t need Atlantis suing, too; unclear if good reason
d. Analysis of intervention burden for Atlantis
i. Interest in transaction: Yes. Atlantis wants to own reef; no legal interest in
US v. Ds case but hurt later if must sue US (App Ct agrees; D Ct. said no)
ii. Interest not adequately represented, Timeliness: both OK for Atlantis
e. Ct: held US can’t block intervention b/c for reasons of judicial efficiency
i. But consideration of prejudice for Atlantis?
ii. Case doesn’t involve normal witnesses – mainly legal question, but…
1. Is amicus status enough for Atlantis?
2. Will be discovery, but no one discovers to help Atlantis’s case
iii. R19 flip side: same problem determining w/o discovery if shd let party in
f. Joinder vs. Intervention: overlap of Rule 19 & 24:
i. R19  no joinder if ruins diversity, SMJ; PJ can be hard
ii. Both balance interests of parties to case & interests of 3rd parties affected
iii. If party indispensable (R19), definitely can intervene (R24); reverse untrue
iv. 20a = may bring suit when joining party has right to relief
3. Smuck:
a. Facts:
b. Problem w/ intervening white parents joining suit: can’t sue (black) parents
(original Ps in CA) b/c have no rts vs. black parents; would sue Bd of Ed
c. How would intervening parents have sued?
i. Suppose this had been employment discrimination case?
d. Interest: need not be economic, but unclear if it must be legal rt
e. Lack of complete diversity would stop intervention:
i. Supp. Juris. 1367 does not allow R24 to destroy complete diversity
1. Judicial econ not good arg b/c could bring case in state ct
ii. Based on certain facts, judicially economical outcome not possible
1. E.g., car crash, P1 sues diverse drivers, P2 tries to intervene &
would destroy diversity, but can’t get it all into state ct.
iii. Difference btwn R24 & R19?
1. Might consent (as party) to allow all suits to be in same place
iv. AM: shd be minimal diversity; = judicial econ, just keep case in fed. ct. if
already there; Supp. Juris not really end run around fed SMJ
1. But Rules writers very anti-diversity
f. Permissive intervention: Movants for intervention always use both 24(a) & 24(b)
i. Permissive hard to overturn – if permissive denied, no appeal
ii. Permissive attaches certain conditions: can’t raise certain claims, forces
parties to stick to certain schedules
iii. Motion to unseal ct records – no need to file complaint, just do permissive
iv. Very useful on many occasions
p 17, Larry Lee, Civ Pro II Outline - Morrison
Units 8-10: DISCOVERY
Unit 8:
1. Privilege: Marrese v. AAOS (7th Cir., 1984, 771)
a. Facts: doctors sue AAOS b/c not admitted to professional organization
i. Doctors care b/c econ. benefit: listing w/ AAOS helps them get business
ii. Claim = antitrust, AAOS try to keep price high by limiting supply of docs
1. Hard to argue AAOS limited supply; no bylaw caps # of members
iii. AAOS didn’t admit these docs b/c:
1. Probably Ps charged less, AAOS thought this unfair competition
2. Theory makes sense: Ps denied membership b/c AAOS didn’t like
their business practices = why they use antitrust laws
b. P’s problem: AAOS has all records to prove case, P must see membership files
i. Other discovery methods not effective
1. Selection committee depos don’t help: will just say Ps not qualified
2. Might try to find out who selection committee talked to
3. By time P gets critical info, D lawyer objects, say it’s confidential
ii. So P tries to see files: must prove relevant to subject matter of suit – no
problem here, they’re clearly relevant to antitrust claim
iii. Ds would object – under what grounds?
1. Hearsay: not if “reas. calculated to lead to disc. of admissible ev”
2. Burden: relative to case (e.g., can’t make Ds give files if $100 suit)
3. Maybe be physically difficult searching, copying, etc.
4. Here, Ds don’t want to sort thru files b/c turning over all helps P
5. “Burden” argument less true now (many records electronic)
c. Ds claim their files = privileged; strong burden for P to overcome
i. Membership might be chilled: prevent open deliberation on candidates
1. Other people AAOS talks to may not be open
ii. Destroys value of AAOS certification if every doctor is “good”
iii. D compares to university tenure decisions: good way to analyze privilege
d. Posner’s ruling: largely wrong
i. Rejects absolute privilege: Ps could never win if docs always privileged
ii. Posners’ solution: Judge looks at docs in camera: check relevance of docs,
evidence of anti-competitive behavior (e.g., reference to price-cutting)
1. But: smoking gun unlikely, “can’t admit competitive doctors”
iii. Posner says – look at P’s AAOS files first; if you find nothing, stop
1. Wrong: P arg. must show systematic bias, need other files to prove
2. Judge doesn’t know what P’s looking for or P’s case theory
a. Also, adverse incentive: not to find anything to end case
b. May not know facts lawyers, clients know not in complaint
c. May not know to look for codewords in files for rejection
3. But good reasons to let judge do in camera:
a. National security
b. If J knows what to look for, can exclude other private info
i. Could get affidavit telling judge what to look for
c. Posner said there was probably nothing in AAOS files
d. But state ct already told AAOS to turn files over
p 18, Larry Lee, Civ Pro II Outline - Morrison
4. Posner says to redact files: cut off name, other identifying details
a. Selection committee names redacted
b. But P needs those names, most likely to be biased vs. P!
c. Unclear if candidate deliberations published & show names
d. Often, need to know names to know anything about them
e. At 1st P ok-ed redacted files (forced to) but D didn’t give
iv. Posner had another objection to protective order:
1. Ps could read their own files & lawyers could talk to them about
other files – could limit files to counsel, not let P see
2. But client knows facts, understands particular references in files
3. Another interest: privacy of 3rd parties whose files will be seen
a. But this probably P’s lawyers can still look at files
4. Judge shd insist D check files to exclude irrelevant personal info
v. Posner objects to timing:
1. Posner: D may move for SJ & may not have to look at files at all
2. But P says irrelevant, P already survived motion to dismiss
3. In theory, timing good way to deal w/ potentially sensitive stuff
4. But Posner’s analysis wrong: must do discovery before SJ anyway
vi. Posner speculates on P’s motives: says P trying to coerce D to settle
1. Hard to understand how P’s coercion would motivate D to settle
2. Posner wrong to say Ds would settle regardless of merits
a. But you have people waiting in the wings to sue
b. D can’t avoid privacy problem here by settling – would
expose D even more when other doctors sue
c. D would settle nuisance if legal fees > likely damages
d. Seems very unlikely that Ds would settle
3. If Ds settle valid claim but few other doctors excluded from
AAOS: Posner suggest this is bad
4. Discovery not just for trial: helps parties get info & maybe settle
vii. Posner calls this “fishing expedition”
1. No. If P’s case totally meritless would lose on motion to dismiss,
but state ct ordered D to turn over docs
2. Accuses P of wanting to depose witnesses: of course they do!
3. Says P didn’t get docs in state ct, exploit liberal discovery in fed ct
a. But different theory in state ct - antitrust ev. irrelevant
viii. Posner’s conclusion: accuses Dist. Ct. of managerial irresponsibility
1. But Dist Ct didn’t let it get crazy: could say not P given enough ev
e. Dissent: Would have affirmed trial ct. findings
i. Odd: after attacking Posner, suggest exact same things Posner did
ii. By suggesting no contempt order & in camera inspection, it’s like saying
they agree w/ Posner trial ct. abused discretion
f. Fundamental difference btwn majority and dissent?
i. Dissent: Does not think that trial ct. screwed up, abused its discretion
ii. Posner: may argue he placed self in trial judge’s shows & decided that
way – talks about judge “managing the docket”
2. What question are there to ask about discovery?
p 19, Larry Lee, Civ Pro II Outline - Morrison
a. Privilege, Relevance (but are there questions of fact to be determined first?)
b. What standard for discovery? What if app. ct. could have de novo review?
i. Ask if appeals just based on discovery could be interlocutory?
c. Probably Ds would be likely to use interlocutory?
i. Strong incentive for D to delay the case
ii. Forces P to spend money on sideshow
d. Generally, no interlocutory appeal for discovery orders
i. Generally, discovery appealed at the end
ii. But most cases get settled, so
e. Contempt orders for discovery
i. Other sanctions available in Rule 37
ii. Marisse exceptional: had contempt & cts had chance to rule on discovery
3. Paula Jones problem
a. Facts: Clinton asked if ever had sex w/ Arkansas or White House employees
i. Clinton answer: irrelevant: not your business, invasion of privacy, but to
know if relevant, must understand case is about
ii. Paula tries to prove discrimination b/c she didn’t consent to sex w/ Clinton
iii. 2 theories: some cooperated to get ahead, some didn’t & got retaliated vs.
iv. If Clinton answers “yes,” then ask who he got it on w/
1. Ask how liaisons happened (did troopers help bring him women?)
2. If he tells you who’s got favors and who didn’t
3. Also, look for women who turned Clinton down to prove theory
4. Then depose women, & they say “it’s none of your business”
b. As Jones lawyer, you talked to witness (Linda Tripp), know Lewinsky’s out there
i. Don’t want to expose witness to get discovery: want to catch Clinton lying
ii. Trial judge sat in on Clinton’s depo, ruled on objections during dep.
c. If Clinton refuses to answer 1st question, “did you have sex w/ anyone”?
i. P’s lawyer - don’t put him in contempt,
ii. Do Rule 37, take away privileges in suit (bringing in future ev, etc.)
iii. 37(b)(2)(A): can assume any answer; here, say Clinton screwed employees
iv. But then P can’t, if no other witnesses, identify other women to prove case
v. Then Clinton refuses to answer Qs, says defending honor of Presidency
vi. But Paula Jones may move for summary judgment
d. What questions are valid?
i. Cd say White House acts protected but not Arkansas: or must he answer?
ii. But: it looks bad if President doesn’t submit to the rule of law?
iii. How do you establish pattern before knowing of it?
1. Intersection of relevance & privacy
2. Tension btwn needed ev. & fishing: must fish a bit to prove case
e. Could force P to meet burden of establishing something before going fishing
i. Tell judge at least one witness can show Clinton had sex w/ employees
ii. Marisse trial ct. balanced interests
iii. Here, must show some other ev aside from allegation to move on – must
not just take Clinton’s interests but also 3rd parties (other women) in mind
f. Q: if something relevant/ likely to lead to relevant info, close to center of case?
i. Usually, discovery disputes about balance privileges & interests
p 20, Larry Lee, Civ Pro II Outline - Morrison
4.
5.
6.
7.
ii. Fact & law specific, so few decisions on discovery are useful, hard to
make blanket statement about discovery
g. Clinton could have settled the case instead of the question
i. But lawyers were not in it for the money
ii. Best way to drive wedge btwn Jones & her lawyers = settle case
New Discovery Rules
a. 1993 – District Cts were given chance to opt out of new changes
i. Set up as answer to “discovery abuse”: many depos, interrogatories, etc.
ii. Usually happens when big companies sue each other, not public interest or
Ps lawyers: can’t afford to abuse discovery or case theory needing lots of
b. 26(a)(1) – mandatory disclosure
i. Must provide info on disputed facts based on “particular pleadings”
ii. Requires producing reports from experts or can’t let them testify
iii. Limits to 10 depositions and 25 interrogatories
1. [Interrogatory limits don’t count w/ regard to ??]
iv. Helps easy cases: standard breach of contract or car crash
1. No good in situations like Paula Jones
c. 2000: opt-out no longer applies; all Dist. Cts. must submit to rules
i. Discovery now ltd a bit: – not “subject matter of case” but “claims raised”
Discovery Problem
a. D’s concerns: Don’t want trade secrets (manufacturing process) to get out to
competition, don’t want P’s lawyers to have it to bring other suits, the FDA
i. P can’t have them, maybe judge in camera
ii. P: No fair! Can’t try case w/o info.; protective order stops secrets from
getting out (most judges would allow P to see files)
iii. D would move for summary judgment (SJ)
1. P looks at ev, finds relevant stuff, opposes SJ; judge looks at stuff
a. But motion = public record – secrets still get out
iv. So D also gets protective order for ev under seal to prevent ev from being
public in SJ (also must get order for depositions, etc.)
b. For P: releasing info pressures company to settle, but if protective order, what?
Protective Orders (XYZ Co. hypo):
a. Would build in features: Designate some things confidential, put things under seal
b. D wants to make everything subject to protective order
i. Not everything is a trade secret
ii. But it’s a burden to mark things “confidential” and “not confidential”
c. Does it matter to P that everything is subject to prot. Order
i. Having to keep documents separate takes some care
d. So what happens at the end of the case?
i. D wants documents back, P wants to keep the documents to file suit again
ii. Maybe P signs agreement to use documents for several cases
iii. But what if there are no other cases? Why does P want to keep?
1. D usually asks that docs get destroyed or given back to D
2. There may be cause, even if D is heavy handed, to allow order
e. Judges do not like disputes over protective orders: usually order parties to resolve
Now, in hypo: Press makes motion to unseal court records
p 21, Larry Lee, Civ Pro II Outline - Morrison
a. 26(c) = protective orders – must show good cause
i. D argues good cause: willingly gave docs to P & relied on protective
order, future Ds won’t give docs if 3rd party can overcome protective order
ii. 3rd party argues: weren’t party to “protective order K” btwn P & D
1. Could say no “reliance” b/c all knew K was only btwn P & D
iii. Court orders also can change (But if D consented, argument is stronger)
iv. Ct may say parties can’t K around: if good cause, must still release docs
b. So how can 3rd party argue good cause?
i. P has actually requested docs, which points to their importance
ii. Also AMA journal exists, XYZ co still makes pill, public right to know
iii. Is P in favor of giving up documents? Probably
c. Say P finds letter in D files to XYZ CEO: “We’ve must get pill off market now!”
i. D takes document, but P wants to make public to protect other women
ii. Not up to lawyers, up to P: lower settlement if made document public
d. Say D pays P big settlement to not let P lawyer from using info to sue w/ other Ps
i. Most codes of ethics against this - interferes w/ ability of other Ps to sue
e. Press makes motion to unseal documents after case has settled
i. Now or never: too hard to check records after docs go back to D’s files
1. E.g., docs are relevant; burden would be much higher after
ii. Party wanting privilege must write “lock,” list of docs & contents (public)
iii. D answers that no one will settle in the future if they unseal the documents
f. A purpose of discovery: let parties try case/settle, unlock docs w/ protective order
i. Once case has settled, this reason goes away
g. Can we distinguish public & non public, open records & not?
i. Not just decisions, but all docs filed w/ ct
ii. Records presumptively public
iii. Ex: tobacco companies gave lawyers research to claim attorney-client priv
iv. For years, no one could get thru. but overrode by claiming public safety
h. Document distinctions:
i. File v. not filed: may get D to settle fast, stop docs from getting filed w/ ct
ii. Does P still have docs: Sometimes, since protective order usually v. P;
even if P negotiated to return docs. If D didn’t insist on carrying out, ct.
may still amend order & let others see; if docs returned, cts loath to amend
iii. Extra special protection: Some orders say all confidential; some “specially
confidential” & get special protection
iv. Beginning/ending rationale for order: Ct often say reasons for protective
orders at start of case often change at end, once case tried/settled
i. Arg. made by students: adversarial system protects P & D but not public interest
i. Here, public health & safety not protected
ii. But also, may be unfair to D’s interest to allow public release of docs (e.g.,
just 1 study) based on allegation that product = dangerous
iii. Surely, regulatory bodies shd get info: can best determine product safety
1. Under Fed law, if get info, crime to disclose trade secrets
2. So safety info goes where needed but still Ds interest still protected
3. Not guarantee they’ll do something, but it’s at least start
iv. D has no good arg he shdn’t send info on regulated product to FDA
p 22, Larry Lee, Civ Pro II Outline - Morrison
j. Others should get docs: people who used, stopped taking drug, & have cancer
i. Must change system to protect order: say orders can’t contain things
inimical to public interest/safety (e.g., allowing destruction of docs)
k. Suppose D offers $500K to keep secret; if docs public $250K: let D do this?
8. On work product: Hickman v. Taylor
a. Facts: P tried to get notes & mental impressions of D’s lawyer (non-party)
i. P wrongly used R33, 34; shd subpoena & depose D’s lawyer, ask for docs
1. Before 1970, document production required ct. order
ii. But if D gave all records to lawyer, not immune to discovery under R34?
1. E.g., investigating accident to prevent them
iii. So why chastise P for using wrong rule, asking for D lawyer’s docs
1. Changes discovery a lot doing this: asking from lawyer, not party
2. FYI: Now, R45 for 3rd party discovery. Serve subpoena, 3rd party
required to produce in ct, 100 miles of district or where he lives
iv. If witness doesn’t want to allow discovery, must quash
b. P requests 3 kinds of docs from D
i. Written statements of attorney given by witnesses
ii. Attorney’s notes, memoranda of interviews w/ witnesses
iii. Oral testimony to attorney not yet recorded
c. Is this legitimate request of P? Several tests:
i. Relevance: yes, clearly
ii. Burden: probably not, compared to other burdens
iii. R26 privilege: ct says no, material not client’s (witnesses interviews)
d. Despite this, SCt refuses discovery, tries to protect these interests:
i. If ct. made lawyer discover, all his theories, impressions discoverable
ii. Accuracy: Oral testimony remembered by attorney is almost hearsay
iii. Less candid: if long after accident, oral testimony forced from lawyer =
filtered over time & through his impressions
iv. If make lawyers witnesses, likely to keep things in head
1. Like Marisse – people don’t want to write down candid thoughts
2. Prying into lawyer’s thoughts prevents them from doing their work
e. Probably unfair to say SCt trying to limit discovery
i. P could get info: could have seen hearing where survivors spoke just after
accident: more accurate b/c closer to accident & witnesses testified
ii. SCt would OK discovery thru lawyer’s notes under certain circumstances
1. Witnesses unavailable
2. P must show did everything else possible to get info
3. “Good cause” fact-specific, no bright-line (like Marisse, Jones)
f. SCt treats 3 types of info as same, but differences in availability
i. #1(written witness testimony): witness would have copy
ii. #2 (lawyers notes): greater accuracy problems w/ than #1: (1) lawyers
won’t write down all (2) inherent problems w/ lawyer notes: witness can’t
check them (3) Witness interest to tell truth: not seem dumb as witness (3)
lawyer adds insights to notes not in witness testimony
iii. Now, rule 26(b)(3) focuses on value of info to P & difficulty of getting it
iv. Anyone working under lawyer anticipating litigation can = privilege
p 23, Larry Lee, Civ Pro II Outline - Morrison
1. E.g., tobacco companies giving research to lawyers to get privilege
v. Objection to #3 (unrecorded lawyers impressions):
1. Burdensome b/c must create document
2. Less accurate: worse than #2, writes much later; his own
impressions & infiltration of other info
g. Justice Jackson has different concerns
i. Lawyers either become witness or are accused b/c didn’t testify
ii. Rule 26(b)(1) – discovery need only lead to admissible ev
iii. P lawyer gets #3, finds conflicts w/#1, deposes D lawyer: 26(b)(1) permits
iv. Jackson may overstate, but letting P get #2/3 anytime = deposing lawyer
h. Consider broader interp of rules themselves.
i. Assume ct is correct: It’s conclusion P’s actions “unwarranted”
ii. 822: ct didn’t say lawyer’s notes/thoughts discoverable, but not banned
iii. 824: Jackson: literal rule interp allows discovering lawyer notes, thoughts
i. Discovery, to ct., not complete end of adversary system.
i. Then, rules 5 yrs old, SCt knew states look to them to decide to take rules
ii. Bar would have flipped out if case had come other way
j. What would drafters of rule have thought?
i. Majority thought drafters wouldn’t have let P’s lawyers to get this info
ii. Probably, drafters would not have ever thought to make lawyers testify
k. Like State Farm: lawyers try to make rule do something it wasn’t intended to do
9. Summary: Little law here, key ingredient = relevance, must use substantive law
a. All discovery decisions balancing relevance vs. other societal interests
b. Fact-intensive exercise, so little case law on it
c. Discovery disputes rarely decide case
i. Even w/ attorney-client privilege, if forced to give, not admissible
d. Discovery meant to take away gamesmanship
e. Discovery serves vital process, not just for trials but also for summary judgment
i. Lets parties intelligently decide to settle cases: why 90% of cases = settled
p 24, Larry Lee, Civ Pro II Outline - Morrison
APPLICABLE LAW
The Problem: take typical diversity case. Which law applies? Could use state law or fed
common law (general principles of law related to state law)
Swift & Erie: Switch from Fed common law to none
1. Swift v. Tyson (1842)
a. Facts: is fraud = defense for non-payment of debt. In NY, fraud = defense; In UK,
new common law = no defense. (Unclear what “fraud” is)
i. Ct’s interp favors destroying defense & forcing payment of debt
ii. Fear of merchant class of local protection for debtors
b. SCt looked at Rules Decision Act (Section 34): RDA – “The laws of the several
states” applies to diversity case except Const, treaties, Acts of Congress
i. “in cases where they apply”: rules of statutory construction: don’t assume
any phrase redundant, try to find independent meaning: what is “in cases”?
1. M does not think that this means very much
ii. “Except”: means where state law would otherwise apply, fed law trumps
c. Swift ct’s problem: focused on word “laws” in RDA
i. Determined “laws” meant “statutes,” didn’t include any judge-made law
ii. Ct. says in ordinary use of language, judge-made common law not = “law”
1. Ct too neatly creates 2 categories of “statutory” & “decisional” law
strange to say statutes = law: statutes still must be interpreted
iii. But ct. considered non-statutes law as well: e.g, “local custom,” real
estate (unclear why real estate = “statutory”, no reason to make fed)
d. Ct. supposed interpret statute: are these distinctions in word “laws” alone?
i. Ct. has semantic justification: “laws” sounds like “statutes”
ii. But: “real estate” = largely common law, but ct. wasn’t going to federalize
it b/c arguably great reliance placed on location of land & applicable rules
iii. Note irony: facts related to land transaction; why not apply state law?
e. Ct.: Ks & commercial transactions = examples of things that aren’t “law”
i. So state cts. may look at own law & other common law elsewhere
1. Goal = use general principles of law & find just principles
ii. But state & fed cts. shd, in theory, use same approach & get same law
iii. Strong concern w/ interstate commerce, let merchants do business
iv. But should state still have rt to protect locals vs. out of state merchants
f. Swift ct. says fed can, better than states, make common law thru general principles
i. But states still develop their own law
g. Swift seems to violate federalism: point to Judiciary Act/1652 w/o invoking Const
i. An interp of 1652 where “laws” not strictly = “statutes”: if intend to limit
to state statutes, would say “acts of state legislatures” (b/c passage says
“Acts of Congress”: construction rules say same words for “statutes”)
1. This suggests “law” = broader word vs. narrower word of acts
2. Erie v. Tompkins (1932)
a. Brandeis opinion: not “slightest difficulty” killing Swift but not full on attack;
had several reasons for decision: (1) “scholarly research (2) Taxicab case (3)
Swift benefits didn’t accrue (4) not clear if there’s “true” legal doctrine
p 25, Larry Lee, Civ Pro II Outline - Morrison
b. “Scholarly research” (law review article on legislative history) revealed RDA
draft, explicitly said “written & unwritten” language didn’t limit RDA to statutes
i. Ct. says draft helps interpret final version, shows RDA not ltd. to statutes
1. But excluding language in final unclear: cuts both ways
ii. Other issues: no witnesses for legis. history; “intent” unclear, Cong. may
not have thought of it, members vote for bill for reasons other than intent
1. AM: history most useful broadly, thinking about what bill’s doing
& why legislatures trying to change (Even Scalia agrees here)
c. Taxicab: Brandeis disturbed by abuse of Swift in one SCt case
i. Facts: cab company gets exclusive rts to passengers of train co. illegal in
KY, so train co. incorporates in TN & sued to enjoin competing cab co.
ii. To Brandeis after Taxicab, criticism of case, if Congress truly up??
iii. 1359 stops this, prevents collusive jurisdiction for diversity
iv. W/o 1359. ct. could still have done many, many things to stop RR’s abuse
instead of overruling Swift
1. But SCt likely not abusive to say RR shdn’t get TN citizenship
d. Swift benefits didn’t accrue
i. Swift ct. limited itself to meaning of word “laws”
ii. Brandeis made Swift seem attempt to decide whither uniform rule
1. But it’s Congress’s job, not SCt; Brandeis’s only job is to decide
intent on “laws,” not best doctrine
iii. To Brandeis, hard to make dividing line: unclear if some laws state or fed
1. Otherwise, So district cts. would use whatever categorization of
law (state or federal) they wanted to get a certain result
iv. Ostensibly, SCt can clarify line (but too many cases to hear)
e. Unclear if there’s really “true & correct answer” to most legal doctrines
i. Many kinds of systems, e.g: comparative/ contributory negligence
ii. Federalism suggests many “right” answers, state’s right to decide
1. Judiciary Act = anti-uniformity statute
iii. Not for ct to decide 1 true law: just interpret statute, RDA & Judiciary Act
iv. “Benefits of uniformity, mischievous results” interesting & irrelev.
v. Brandeis’ view of diversity: exists to stop prejudice in state courts
1. But interpleader not focused on prejudice
2. Also, need not prove prejudice to get diversity
3. Also, in-state Ps use diversity, so purpose not just prejudice
vi. Did Swift = prejudice of non-citizens vs. citizens? Let parties switch
citizenship shop for law
1. Gives non-citizens power to rule-shop by forum-shopping
2. Diversity = right to forum-shop, but non-citizen also gets benefit of
change in substantive law
3. Also: non-citizen could sue in D’s state ct & D can’t remove
vii. Hypo: what if I move to NJ to get diversity to sue someone in NY?
1. No concern of manipulation: inconvenient to move states
2. Erie doesn’t fix different treatment of citizens & non-citizens
f. Reduces discrim by taking out fed cts. as source of problem
i. Must still determine state law to apply; Erie only applies to fed cts.
p 26, Larry Lee, Civ Pro II Outline - Morrison
g.
h.
i.
j.
k.
l.
ii. State law can apply whatever law
Recap from last time:
i. Diversity inevitably prejudices vs. one party (D?)
ii. Not always clear which law applies, some uncertainty even w/ states
iii. Problem in Swift: not just applying for forums, but shopping based on
diversity, though it’s irrelevant to choice of law
iv. According to Erie ct., Congress called for end of diversity
v. Another “mischievous” result: not even clear if local or fed common law
applied, b/c lines btwn them were hazy –lacked uniformity Swift promised
vi. Was it enough to overrule Swift to cure these defects?
1. Brandeis held Swift unconstitutional, but not needed to make ruling
Argument in favor of overruling for Swift: (1) wrong, based on RDA (2) No
benefits accrued (3) Hard to tell what was still just state law, (4) etc.
But what are principles of stare decisis
i. Overrule interp of Judiciary Act instead of overruling common law
ii. But if interp so bad, Congress could have changed statute
iii. This question will come up often in statutory interpretation
Is there reason to keep Swift b/c of stare decisis?
i. Reliance: so people know what to expect, helps in future transactions
1. But is reliance = constant that we must always take into account
ii. Defending Swift b/c people relied on it, not just b/c 96 years old
iii. But precisely who relies on Swift? People who have not yet brought cases
1. Factor when you choose to bring suit
2. But little reliance: you don’t foresee torts & suing non-diverse D
iv. Also, don’t know what fed common law is
1. Statute interp = start of problem; don’t know what judge will say
2. Not much oppty. to develop unified fed. common law
3. Much harder to figure out fed common law than state law
v. Very few lawyers thought about Swift
Analysis of Erie & its advantage to D (RR) in primary conduct
i. Erie = tort laws certainty, can plan safety investment
1. Swift = D has no idea what std to apply, how much to invest
ii. Reliance interest small: people don’t plan around ct rulings much
1. But Erie still better than Swift in reliance.
But “reliance” not enough. SCt then pulls big guns & calls Swift unconstitutional
i. “Congress w/o power to enact substantive law”: really what Congress did
intend w/ Judiciary Act?
1. NO: Judiciary Act doesn’t enact substantive law – fed cts made
substantive law based on Swift
2. Even so, not necessarily true Congress can’t enact substantive law
a. Ex: FELA does create substantive law based on tort law
b. Facts of Swift – notes traveled in interstate commerce
ii. Hypo: suppose no Rules of Decision Act but was diversity
1. Not unthinkable fed ct decide own substantive law in common law
2. Brandeis thinks it impossible, opposed to violating Article I, thinks
fed cts decide what Congress hasn’t but what state legislatures did
p 27, Larry Lee, Civ Pro II Outline - Morrison
m.
n.
o.
p.
3. Article I applies to Congress: w/o absent other positive law, fed
cts. can make common law
a. To Brandeis, this violates Article I (but he overstates case)
4. Ok, but what’s valid about Brandeis’s constitutional analysis?
Note: if case raises 2 substantive issues on statute, do Const. question last, assume
Congress, in passing statute, wanted to avoid conflict w/ Const.
i. So Brandeis bad act supports this idea: Congress didn’t mean to challenge
Const. w/ Judiciary Act by supplanting state law
ii. Should construe 1632 to avoid
iii. By 1932, fed cts have stuff to use to decide cases: there is body of law
Dissent: Justice Butler
i. No party requested Const. ruling & don’t need Const. to decide case
ii. Also: Must brief Attorney General on Const. issue b/c not briefed before:
statute & rule, Rule 24(c), says must tell AG about
iii. But Const. issue not dicta or side-issue; Brandeis Const. issue is on point
iv. Pretty clear declaration by SCt: will kill laws exceeding Const. authority
v. Also, neither party to suit thought to analyze or brief Swift
1. P 365 – issue was if evidence showed P was contributorily negli.
2. Ct. didn’t even ask parties to brief the question after the fact
a. Probably no one even mentioned Swift
3. Also, even if Swift appropriate Const. case, SCt never let D brief
Const. argument! Sup Ct. never notified D or Attorney General
So now, substantive law in diversity cases not decided by fed common law
i. But some fed common law: admiralty law, Indian law, other questions
ii. Probably what “cases where it applies” means in RDA– where fed.
common law does not apply, state common law does
Final thoughts
i. Development of Fed Civ Pro rules = good time for Erie
ii. In end, fed law could apply if Erie retried but different terms of debate
iii. Also note Erie doesn’t say much about which laws are substantive
Erie Substance: Statute of Limitations
1. Notes on Statute of Limitations (SoL; Rule 15(c) mentions them)
a. Many SoL cases b/c easy way out for D & ct (
i. Ex: 2-yr SoL on car crash; P files complaint, serves process 2 yrs, 1 day. If
follow fed law, 60 days to serve post-complaint, can shop choice of law
ii. Same example, but state law says, “2 yrs to file, 60 days to serve process”
b. Reason for SoL
i. Potential D needs to mount adequate defense, should only have to keep
records for so long - advantage of surprise if P waits for years to sue
ii. Cts. dislike old cases, hard to decide well (witnesses gone, dim memories)
c. Another concept of “laches” – doctrine of equity
i. Laches make sense? No fixed time to sue but must be reasonable; after too
long, barred if P has done something wrong or D is somehow prejudiced
ii. But doesn’t help goal of SoL, no certainty for D
iii. But aren’t SoLs arbitrary?
p 28, Larry Lee, Civ Pro II Outline - Morrison
1. On other hand, can have exceptions
2. State legislatures already balance justice vs. certainty
iv. Hypo: 1-yr SoL for medical malpractice; patient sues 5 yrs later & says,
“I didn’t know there was a sponge in my stomach until last year”?
1. Could have different standards, 1-year SoL runs from “when P
knew” or “when P had reason to know” of malpractice
2. You have to look at legislatures – there’s no “truth” in SoLs
d. Doesn’t this analysis of SoLs suggest Hanna = wrong?
2. Hanna v. Plumer
a. Outcome-determinative: any rule can be (e.g., what paper complaints need to be
on, etc), but things like SoL meant to be outcome-determinative
b. M. thinks Hanna wrongly decided in letting fed. SoL apply
c. What method of analysis to say which law should apply?
d. Start w/ RDA, 1652: Swift asked if “laws” = statutes & common law or just RDA
statutes
i. RDA may not apply to Hanna: FRCP not in clause “state law applies
except for Const, treaties & Acts of Congress “
ii. Could argue “statute” not same as fed rules coming from statute
iii. Could argue FRCP requires approval but not Act of Congress
1. Why in RDA, Const., treaties, Acts different from common law on
other; FRCP closer to Const, treaties, Acts?
2. Clear intent: treat FRCP as Act of Cong, trump state rules
3. How treat orders of local cts, like rules? Ct. didn’t insist fed law
issued only by Acts of Congress, but must start w/1652
iv. AM: RDA, under 1652 = no choice, must apply fed R4(d) vs. Mass Rule
e. Then check Enabling Act, 2072: “fed laws can’t abridge substantive rts in state”
i. Here, since Fed R4(d) alters Mass state SoL, a substantive rt is abridged
ii. Could argue: Enabling Acts say Fed rules may not affect ANY substantive
law, fed or state, 2072 could be broader than typically conceived
f. AM: Hanna doubly wrong by 1652 & 2072 - seems blantant grab of fed. power
i. But reasons to okay that Fed Rules were substantive
ii. If Hanna ruled other way & R4(d) not used, suggests don’t use FRCP
1. Makes all parties look up state rules: not too hard, but then
problem of fed judges interpreting state civ pro
iii. Why else apply FRCP:
1. Cheap service of process: burden to look up state law many times
2. Might have to serve D twice according to state law
3. Uniformity = goal of FRCP; R4 controls svc. of process in all fed
cases, not just diversity
a. R4’s goal = speedy service,
iv. AM: R4(d) not really “housekeeping rule,” (e.g., paper size)
1. Not directed at merits of case, but not just internal matter of courts
g. What if Mass rules required sheriff to deliver svc. of process & executors could
only be served btwn 12-3pm from Mon-Wed; goal = not to burden executors
i. R4(d), here, clearly benefits P, overrides protections granted to executors
ii. Probably R4(d) differs from SoL: usually apply fed rule when different
p 29, Larry Lee, Civ Pro II Outline - Morrison
h. Probably no danger of forum shopping in Hanna
i. Rule 4(d) not good candidate for forum shopping; some advantage in fed
ct., but not enough incentive to make parties choose fed ct.
ii. Other factors more important in choosing forum
i. Hypo: suppose MA rule & Const. said “no discovery.” P needs discovery & gets
in fed. ct. P sends interrogatory, D says “MA substantive law says no discovery”
i. Clear that if fed statute created right to discovery, clear that it controls[??]
ii. So what does 2072 limit on “substantive” rules do here? What meaning?
1. MA discovery law likely not substantive: discovery feels like rule
of procedure, not substantive
iii. MA discovery rule still lets P bring case! If it changes conduct in ct.,
probably procedural, not substantive
1. No affect on primary conduct unlike Erie (e.g., safety investment)
j. Under 2072(b), if no discovery in MA diversity case, none in fed question cases
k. Why might have Congress said “we want discovery, despite what state rules say”?
i. Goal of discovery = get truth & fairly resolve cases
ii. This = legitimate fed function in deciding if law = procedure or substance
iii. Check for fed policy reasons to let FRCP prevail, not just state’s reasons
l. To M., Hanna doesn’t deal w/ Erie problem well
i. Start w/ RDA, 1652: what substantive basis of claim, fed ? or state case
1. Sidenote: w/ fed question, may have state law questions apply, too
ii. If it applies, use state law unless exception, but FRCP are part of
exception (b/c Congress passed law that = development of FRCP)
iii. Then apply FRCP unless it violates state substantive right under 2072
1. No debate over SoL as substantive – yes, it is
iv. Even no 2072 violation, to Brandeis, must keep in mind Const. limits
m. In Hanna, SCt. must have decided 4(d) not substantive
i. 4(d) indirectly affects SoL; SoL incomplete w/o proper service of process
ii. When is FRCP substantive? Why doesn’t procedural rule violate 2072?
1. Study purposes/intentions behind statutes: here, may distinguish
1652 (statute) from procedural rule
2. 1652 & 2072 overlap but have different purposes
a. 1652 = federalism, allocates lawmaking btwn fed. & states
b. 2072 = set up rules, distinguish procedure & substance
c. Ex: rules made by fed judges may be unlawful under 2072
3. Definitions different b/c different purposes
4. So then ask if 4(d)(1) = substantive in light of goals of 2072
n. Harlan concurs: descriptive phrases don’t help distinguish procedure & substance
i. AM: Harlan correct; under majority view, state rules will never prevail
ii. Outcome-determinative test oversimplifies: any rule, no matter how
procedural, could affect outcome
1. Purpose of SoL = to be outcome-determinative
2. But restriction on svc. of process serves other goals, not outcome
iii. Forum shopping = relevant consideration but not conclusive
1. Say in MA discovery hypo, P says explicitly he’s forum shopping
p 30, Larry Lee, Civ Pro II Outline - Morrison
iv. Harlan’s test: ask if “choice of rule would substantially affect those
primary decisions respecting human conduct” (p 385)
1. Not so helpful: problem = primary conduct test works if we can
tell that it affects primary conduct (e.g., in Erie).
2. But w/ SoL not comfortable w/ that; although no effect on primary
conduct, creation of rt. to sue is often tied to SiK
3. Is record keeping for purposes of SoL really “primary conduct”?
o. AM: No clear procedure/substance line: helps to ask what goal of procedural rule
3. Walker v. Armco Steel (389)
a. One question is whether Hanna overruled previous cases, as Walker is
b. Issue = Rule 3; P loses based on Rule 3 (why doesn’t R3 help him)?
c. Ct. found no conflict btwn R3 & state rule, so R3 not meant to toll state SoL
d. Other purposes R3 might serve: way to trigger other rules
i. May trigger rules regarding summary judgment 120 day rule from 4(m)
ii. Could argue R3’s purpose not = tolling SoL
e. Why else might ct construe R3 not to apply (Or: what impact if R3 applies)?
i. Would then = conflict btwn Rule 3 & Oklahoma procedure rule
f. So what principle of law used to say “Don’t construe Rule 3 the way D’s way”?
i. Presume, w/o clear evidence to contrary, that rules don’t conflict (same as
presumption that Congress, in passing law, intended no conflict w/ Const.)
4. Analysis of Walker & Hanna
a. Ask how strong is state policy:
i. In Hanna, served as long as executor got notice
ii. In Walker, more about when person gets notice
b. Other evidence pointing to importance of fed or state policy
i. Hanna = fed uniformity, little state burden. Svc of process mechanics shd
be same in all fed cts.: interest in reducing burden for fed. judges &
lawyers (e.g., say complaint has more than one cause of action)
ii. Walker also = fed uniformity interest. But danger if fed rule always used
& called non-substantive.
1. Ask if policy interests support uniformity, or just value uniformity
2. Tiny fed burden: people served same way, state law just says when
c. More differences –
i. Hanna: SCt didn’t say 4(d) must apply, but did use fed rule
ii. Walker: it isn’t the only interpretation that the SoL begins rolling
d. Any relevance that R3 interp unclear?
i. Walker ct. distinguishes itself
ii. Does it matter R3 could be used either way? Other principles matter:
1. Can interpret R3. to avoid conflict w/ state rules, or presume to
interpret b/c of RDA to explicitly avoid fed-state conflict
a. Remember, presumption that fed & state law don’t conflict
2. Only when conflict unavoidable, should rule be construed one way
iii. Lack of fed interest in Walker not documented at all
iv. Congress, in 1652 & 2072, says to avoid construing conflicts between
laws. But also suppose ct. was wrong: what consequence?
1. If people disagree w/ ct: easier to amend rules than pass statute
p 31, Larry Lee, Civ Pro II Outline - Morrison
e. Relevant that case = diversity? Does R3 advance goals of diversity?
i. Hard to see how focus on timing helps prevent bias vs. out-of-staters
ii. But does this mean that b/c statute isn’t in accord w/ purpose of diversity,
does this mean that fed. rule can’t overrule state rule?
iii. Take Hanna: R4(d) not about bias, but fed. interest in uniformity & truth
iv. Once case gets into fed ct by diversity, other fed. interests are legit
1. E.g., Most big civil rights laws based on Commerce clause, though
it wasn’t added b/c of segregation – but okay to use other purposes.
f. Suppose R3 = amended & explicitly said fed SoL to be used in all cts.
i. [Law = expressly what Walker ct said it didn’t do]
ii. No easy out as in Walker, but inquiry not at end
iii. Look at RDA and ask if the Rule were substantive or procedural
g. Now suppose Congress passed law to make same change to SoL
i. No problem: 2072 draws line between substance/procedure,
ii. But may still be problem w/ diversity cases: Brandeis in Erie said Was
unconstitutional for Congress to pass substantive laws????
5. Analysis of Choice of Law
a. In Erie, fed ct. in NY assumed that Penn. law would apply
b. Klaxon (p 409, US 1941): use state choice of law, not just state law, where ct. sits
c. State law often unclear on choice of law: often no clear decision from high state ct
d. If state law uncertain, who bears burden of uncertainty:
i. If P says, “state law unclear, but I win case,” shd send back to state ct.
ii. If D removed to fed ct. & says “state law unclear,” not much sympathy
iii. Sometimes, fed ct. can get state ct. to clarify law (state cts. don’t want b/c
many cases; mainly fed App. Cts. or S.Ct. refer cases, not Dist. Cts.)
e. In older cases, usually P tried to get case in fed ct.
i. Before, belief fed judges better, sometimes law better (before Erie), better
procedure, juries better (more willing to award large judgments)
f. Now, clear mainly Ds try to get into fed ct., Ps try to get into state ct.
i. Can transfer similar cases to one forum & consolidate
ii. Large cos. usually have single national firm who leads defense in case
iii. Multiple Ps & Ds = better in fed cts.
iv. Also in tort law, fed preemption interpreted to preclude many actions
v. Ps keep in state ct: sue in D’s state, join local Ds (destroy diversity), etc.
g. SoL in fed. question cases: generally, borrow state SoLs for analogous action
i. Congress didn’t mean for there to be no SoL, but unclear which to be used
ii. No one suggests fed. common law SoL b/c cts. aren’t good at creating
iii. Exceptions:
1. Use fed common law = if closer analogy, significantly more
appropriate vehicle: “fed policies & practicalities of litigation” [p?]
2. 28 USC 1658: 4 yr residual SoL for actions after 12/1/90: no help
iv. What stops tolling of state SoL?
1. Walker left open issue of SoL in fed ?? case; may be different
considerations for fed question in applying R3
2. Reasons to apply R3 in Walker:
a. By definition, fed ?? = no conflict w/ state substantive law
p 32, Larry Lee, Civ Pro II Outline - Morrison
b. Uniformity: fed actions same in all cts (not just procedural)
v. Always ask “Compared to what?” when asking if Rule/ procedure = good
vi. West v. Conrail – S.Ct. held that Rule 3 applies, uniformity good
6. Choice of Law & Erie Analysis
a. Basis for claim: W/ Erie problem, start by asking, “What is substantive basis of
claim or defense which at issue?”
i. If fed-based substantive claim, generally don’t worry about Erie matters
1. But: if fed claim relies on state law, look at state law on those parts
b. Fed/state conflict? If state-based substantive claim, ask if fed & state law conflict:
i. [Diversity SMJ doesn’t always tell you if state law applies]
ii. Does state law clearly apply? Assume state cts. don’t export rules
1. Does state intends to export rule – e.g., NO if rule like “You must
use green paper to file service of process”
2. Ask if fed law intends “export”
c. 1652 Analysis: ask if case comes within exceptions: (1) Const. (2) Statutes, acts
of Congress, treaties (3) Rules pursuant to fed statutes (e.g., RDA)
i. Follow fed rule unless substantive, i.e. unauthorized rule (e.g., substantive
rule of law can’t be followed) under 2072
d. 2072 Analysis: if fed. rule is statute based, no problem under 2072
i. Hard to determine if law is substantive under 2072(b): b/c no one answer
to question. Attempt to apply 1 test to different cases = unsuccessful
e. Erie test if law = substance (check chart; more comprehensive):
i. Primary conduct: Does law affect primary conduct (e.g., safety investment
in Erie)? Almost anything does, but there are degrees of conduct
ii. Outcome-determination: Does law exist to affect case outcome, intended
to affect outcome, or has it another purpose? Can tell from policy goals.
iii. Forum shopping: Does law encourage inappropriate forum shopping?
1. Ask if people will change legal actions b/c of forum shopping
2. Ex: using fed ct. to get liberal discovery= legitimate shopping
3. Ex: say fed cts. made P post bond to sue. State cts. have different
amts, fed rule favorable. If P loses case, hurts him; P thinks he’ll
win, would pursue case anyway. Likely not substantive
iv. Fed interest in fair system: what goal advanced by Congress passing RDA,
try to get streamlined & fair system adjudicating rts in fed ct.
1. Itself = independent interest in seeing fed law applies
2. Ask if something is closer to substance or procedure?
p 33, Larry Lee, Civ Pro II Outline - Morrison
CLAIM PRECLUSION: res judicata, stare decisis, etc.
Res judicate overview
1. Claim preclusion = affirmative defense which, if not plead, is waived
a. Cts. have institutional interest in not trying cases
b. Below, take typical case, P sues D in auto accident; jury rules for D
2. New evidence: P says he has “newly discovered evidence, result unjust, wants retrial”
a. No retrial: even if impossible to get ev until after lawsuit result unjust
3. Lies: What if key witness lied?
a. No retrial: except for Rule 60(b) [10 days to submit ev.], even for material lies
b. Also unrealistic: no witness would admit he lied,
c. Would need side-show: did witness tell truth & does P get another trial?
i. Very often, loser wants retrial & say someone lied
d. Policy Interests: judicial economy (other parties waiting to try cases), taxpayers
(paying for cts), witnesses who come back for multiple trials
e. So despite mistakes, we learn to limit things, live with lies, & get on w/ our lives
4. Bribing juror: D had bribed one of jurors, changing outcome?
a. This is different: people don’t make this allegation everyday, unlike lying
b. No retrial, but might get Rule 60(b) to set aside judgment, a more ltd motion w/
time limits, grounds of fraud (narrow) & goes before same judge to try case
c. But liars & bribers don’t get away cleanly: criminal charges, restitution, civil suits
5. Case dismissed on failure to state claim
a. No retrial: b/c P can still appeal judgment; no retrial, even if P’s case dismissed
on failure to state claim & loses appeal but, later, new SCt case rules in P’s favor
6. Case dismissed on lack of SMJ: Yes, retrial – can sue in another venue
7. Permanent Injunctions: say P permanently enjoins D, and years later, in unrelated case,
ct. says that P’s claim invalid; if case tried now, P would not get injunction
a. Yes, retrial: injunction = ongoing issue; cts. review law to see if injunction valid
Claim preclusion
8. Claim precluded: “split action” suing 2x for same accident, Rush v. Maple Heights (1188)
a. Reason: P may lull D into not defending against small 1st case, then, on same
facts, suing again & using stare decisis to collect bigger claim
b. Facts: P in cycle accident, sues twice: 1st on damage to property, 2nd case = on
personal injuries. Never actually litigated personal injury claim
c. Ct. bars personal injury claims: P should have litigated personal injury
i. Reduces burden on cts.
d. P’s strategy = Sword: D won’t fight much on $100 property damage; later, use
previous case to get $12Kon personal injuries
i. But D saw this & fought $100 to state Sup. Ct.
e. Hypo: P sues 1st time & feels okay. Years later, feels bad & sues for injuries
i. In Rush, P clearly should have pleaded personal injuries w/ property claim
ii. But some cts. recognize as “2-injury rule”: let P sue on relatively minor
injuries from asbestos & can later sue for cancer or asbestosis
1. Generally, better off not suing on bicycle, so use SoL
iii. Different if P didn’t know extent of injuries in 1st trial
p 34, Larry Lee, Civ Pro II Outline - Morrison
1. Harder to say P could do nothing
2. Just postpone trial – wait until injuries become bigger
9. Claim precluded: P sues corp., then D’s workers, Mathews v. NY Racing (1194)
a. Reason1: Can’t sue corporations and then its employees – they’re the same party
i. Corporations only act thru employees, or else corp could never be liable
ii. Race track (D1) & security guards (D2) same party, “in privity” (?)
b. Reason2: losing on false arrest in 1st case precludes malicious prosecution in 2nd
i. False arrest = predicate act for malicious prosecution
c. Facts: P, in 1st case, sued race track (corp.) for false arrest, etc; 2nd case, sued
security guards (employees) used by race track
d. Hypo: state fraud action for sale of stock. P uses state law and loses; then P uses
fed law – should he be allowed to sue? No [find the rest of this]
e. Go back and ask, “what interest is RJ meant to protect”?
i. Protect D and help cts. keep caseload down
ii. Same reasons as compulsory counterclaim
Issue Preclusion
1. General issues:
a. Need not be same parties (but assume so here to make things easy)
b. Need not kick Ps out of ct, but same as claim preclusion on particular issues
c. Differences from claim preclusion:
i. Actually litigated – Does not work unless it was actually litigated
ii. Actually decided – Trier of fact actually decided issue
1. I.e., ct. must have decided issue, not just received briefs on it
iii. Necessary – issue must have been necessary for the decision
2. Not precluded: Issue not actually litigated, Cromwell v. County of Sac (US 1876, 1207)
a. Facts: P tries to collect on bearer bonds (person who possesses gets interest &
principle). If P can prove he paid for stolen bonds in good faith, gets payments.
i. Current owner sketchy: has 4 of 10 bonds but 62.5% of interest coupons
b. Not claim preclusion: 1st & 2nd cases, held P was same person (different Ps sued
but on behalf of same bond owner) BUT: RJ doesn’t apply though P lost 1st case
c. Ct: P can litigate bona fide purchase b/c issue was not litigated in 1st case
d. Reason (somewhat unclear): Ct. said in 1st case, P unaware he must prove bona
fide purchase; maybe thought it D’s burden b/c P seemed to rest on case early
e. AM: if P litigated issue in 1st case, can’t say different bonds treated as different
transactions: they were issued at same time
i. Why not say P should have litigated issue in 1st case?
ii. Suppose P has 100 $1000 bonds. In 1st case only $10 in interest due. P
demands payment, D knows fraud but can’t prove, so doesn’t litigate.
1. In 8 years, when principle due, P says, “You owe me $100,000!” D
claims fraud, P says, “You already litigated it!”
iii. Change facts such that in 1st case & 2nd case, equal payments due (say
$50K each); maybe D doesn’t have ev in 1st case
3. Not precluded: if unclear that precise issue was already litigated, Russell v. Place (1212)
a. Facts: (US 1876) P wins vs. D on patent infringement; P sues again on license &
D claims “patent not unique”; P claims issues preclusion
p 35, Larry Lee, Civ Pro II Outline - Morrison
i. Ct: held for D, what happened in 1st case unclear, if patent infringement
really precludes claim of non-uniqueness, talks about “extrinsic ev”
b. Hypo: Car crash. A sues B for negligence, but both drove, so B claims A was
contributorily negligent. Jury find for B. C, passenger in B’s car, sues A, “A lost
A v. B, , so A estopped, liable to C” (forget mutuality for now). Should C win?
i. Unclear: can’t tell if verdict for B meant B not neg. or A = contrib. neg.
c. Problem unlikely now: juries decide particular issues, not just make judgment
i. Car hypo: in jury special judgment, B = neg. but A = contrib. neg., & no
one appeals. C sues B: “in A v. B, B found negligent in final judgment,. So
in C v. B, issue of neg. precluded.” Should C win?
1. Issue not precluded: B won A v. B, so won’t appeal neg. issue! We
only appeal judgments, not adverse statements in judgments
Mutuality in estoppel
1. AM: Mutuality not good rule
a. Judicial econ (↓ cases, help waiting litigants): fair to make P litigate all in 1st suit
b. Nonmutuality forces Ps join all Ds: easier to settle, have just 1 trial
c. Rule of law: lawsuits = gamble, undermines rule of law to let P sue until he wins,
(But: don’t take arbitrariness too far: apparent caprices due to other things)
2. Old rule: strict mutually needed for estoppel, Ralph Wolff vs. New Zealand Ins (p1235)
a. Facts: P has accident, has $19.5K coverage from 12 insurers: in 1st case seeks
$14.5K from 9 insurers, only gets $2.5K total & $1,858 from 9 insurers
b. In 2nd case, P challenges $2.5K total vs. 2 new Ds, insurers
i. D argues 1st case precludes; P relitigates = playing games (had day in ct)
c. Ct allows P to relitigate issue of amount can get from remaining insurers
3. New rule: strict mutuality not required, Parklane Hosierty Co. vs Shore (US 1979, 1245)
a. Facts: offensive estoppel: P uses case won by SEC, claims SJ on class action v. D
i. Problems w/ offensive estoppel:
1. D exposed to multiple liab; (here finite # of cases)
2. Doesn’t promote judicial economy, as defensive estoppel does
3. D may have resource problem, can’t choose timing, laws, etc.
4. P = no resource problem (can invest whatever in suit), timing, etc.
ii. Advantages of offensive estoppel
1. Save resources, don’t call witnesses again in case v. D?
2. D can’t claim problem w/ forum, timing (no surprise in 2nd case).
Adequate incentive to fully fight 1st case vs. SEC (not small claim)
b. Held: allows estoppel, but offers no bright rule: cts. should use discretion
i. Reasons: (1) P couldn’t join 1st case w/ SEC, otherwise would be
precluded (2) D had chance to fully defend v. SEC in 1st case
c. Problems w/ discretionary rule:
i. Unpredictable: not clear if 1st case binding until 2nd case tried
ii. Likely little effect on primary conduct
iii. Discretion may drive people to settlement: bigger issue for 2nd P
d. In real world, where do judges allow estoppel?
i. Ex: say that tobacco co. pays P $1M; final judgment, so should other Ps
be precluded from winning offensive estoppel?
p 36, Larry Lee, Civ Pro II Outline - Morrison
e. Principle reason for no offensive estoppel = general vs. specific causation
i. Certain issues for which can have finding of general causation
f. Assuming judges decide for Ps in these cases, exceptions in Parklane worthless?
i. No, cts. will take them into account, but Ds shouldn’t be complacent
g. Reinquist’ dissent on jury trial: no jury in SEC case, D would get jury in 2nd case
i. Even if Reinquist wrong about 7th Am., still has point: majority wrong to
say jury = neutral; holding could = denial of rt. to jury trial
h. Another case where US a party: IRS litigates tax cases all over. If loses case on
purely legal issue, why shouldn’t IRS be bound to honor that issue all across US?
i. If gov’t bound, must overinvest in cases & litigate all cases up to SCt
ii. It would be impossible, then, to get circuit splits on issues, etc.
iii. Does this then give gov’t too much freedom?
1. Most US agencies follow cases decided in Cts. of App.
i. Hypo: Train wreck, 50 people injured: What if 1st passenger wins & others sue?
Or 1st 25 passengers lose & 26th wins? Issue preclusion, or what’s at stake?
i. No, different issue: Why is ct. letting cases be litigated separately?
Class Actions and Claim preclusion
1. Claim precluded if P had oppty to sue but didn’t, In Re Multidistrict Civil Actions:
a. Facts: Humphrey v. Tann Corp.: H bound, at discovery didn’t sue wastes time, $
i. Verdict for P vs. TWA, good lawyers by P & TWA tried to show T’s liab.
b. Mr. Humphrey motives to sue Tann: not money b/c TWA has deeper pockets
i. Maybe limits under Warsaw Convention, H tries to extract settlement
c. What if H sued Tann & you were judge: how stop H from “2nd bite of apple”
i. Could say H never had first bite – he wasn’t in first suit
ii. But why do it this way, allowing many consecutive suits on same issues?
iii. Question whether TWA & Tann responsible, but allow many trials on it?
1. Due process problem?: here, 1st trial seemed best possible, but not
100% sure. Allow new cases, or check if 1st trial = best possible?
iv. What else: Rule 19? Will joinder work here? What if H resists?
1. Relief problem? Is this what R19’s for? Inconsistent verdicts, but
R19 protects interests of those already in suit
2. In Martin, nightmare: city has no stake, gets conflicting orders
from ct, true fight btwn black & white firefighters, like interpleader
v. What else, consolidation? Probably not, look at R42
1. Here, cases were transferred only for discovery
vi. Other options for district ct. judge
1. Test case? Yes, but
2. Here, judge thought he got most people to agree, but H didn’t sign
3. How might dynamics differ from before and after case was tried
vii. H was belligerent & difficult after 1st case tried – he had leverage
1. Not bound unless you agree to be bound
2. Dist. ct. didn’t try to legally bind H
viii. Judge’s leverage before trial for proper & improper reasons:
1. Shd judge get to say to everyone, “this is case, you will all
participate”? Hard for lawyer to resist persuasion of judge
p 37, Larry Lee, Civ Pro II Outline - Morrison
2. No claim preclusion if D interests not represented by class, Hansberry v. Lee
a. Facts: Apt owners sued Hansberry to enforce racially restrictive covenant. H not
party to 1st case (covenant upheld); bound b/c 95% of owners passed cov.
i. Dist. C in 2nd case: H member of class of owners, so previous case held
b. SCt disagrees: H = class member but interest antagonistic to rest of class
i. Unlike In re Multidistrict, not all members of class on same side
c. Hypo: what if in 1st case, ct. had given Hansberry notice & oppty to appear
i. H no-shows, case decided; arguably, H collaterally attacks due process
ii. Due process lacking, check 3 requirements:
1. H has Notice & oppty but lacks adequate representation: much of
class action = determining good proxy for adequate representation
d. How do we decide to allow collateral attack?
i. We sacrifice notions of finality b/c other values (due process) are at stake.
ii. H has burden to prove inadequate representation; in this case, no problem.
In other cases, harder (ex: hard to prove lawyers sold out, etc.)
iii. In Hansberry, property sued H
1. Ds vs. collateral attack should prove res judicata b/c parties in 1st
action have best info about previous case & can best explain RJ
iv. Impact of collateral attack = lets non-party to 1st case litigate 2nd case
1. But if collateral attack not allowed, then what?
a. Or: NY citizen sued in Alaska & forced to litigate there?
b. Faced w/ hard choice if you don’t litigate personal juris.
v. Other problems w/ class action & adequacy of representation:
1. Property owners try to bind future owners as well, who may not
even be born yet, so notice, oppty to be heard, etc. are impossible
2. What difference if did or didn’t bind them
e. Hypo: H said IL civ pro says personal notice to class members, so 1st case invalid
i. Shd ct. entertain rule-based challenge 1st or not at all?
1. Presumption against Const. issues, decide rule-based attack 1st
ii. But is it right to have fed. ct. tell state ct. how to follow its own rules?
f. AM: important case, makes clear that under Const, collateral attacks are proper
i. Ct. sets 3 requirements for class actions: (notice, etc.)
ii. Suppose in 1st case Ps sued person resisting covenant to enforce. Since H
resisted, arguably like D in 1st case, had notice/ oppty to be heard. Why
not bind:
1. H wasn’t party or member of class?
2. Formalities matter: matters H not officially considered part of 1st
case D’s class & to judge & what he thinks he’s doing w/ class
3. You deprive people of day in ct. unless you go thru formalities, etc
3. Not precluded: parties left out of formal class action, Martin v. Wilks (S. Ct. 1989 p1259)
a. Facts: In 1st case, black firefighters (FFs) got city to agree to hiring preferences; in
2nd case, white FFs sue for discrimination.
b. Held: 1st case doesn’t preclude 2nd (trial ct. says 1st case estops, App Ct. reversed)
i. White FFs probably well represented, city strongly litigated 1st case
1. Maybe like R19 or intervention (Smuck v. Hobson)
ii. But Martin differs from In re Multidistrict: different issues for city
p 38, Larry Lee, Civ Pro II Outline - Morrison
c.
d.
e.
f.
g.
1. No conflict in aircrash: 2nd case doesn’t vacate awards for 1st case
2. In Martin, not just conflict of outcome, city asked to do conflicting
things (have hiring preferences & get rid of them at same time)
iii. To S.Ct., not enough to estop white FFs’ suit: if estop 2nd suit means lower
cts. really asked for mandatory intervention: white FFs have no other relief
iv. But: to let white firefighters sue doesn’t make 1st case useless: at least
stare decisis, but not legally binding (not RJ b/c different parties)
1. W/ interpleader & R19, adverse case = stare decisis, not binding
st
Hypo: in 1 case, black FFs got city to stop discriminatory exams & set hiring
preferences. White FFs don’t like lack of exams, new system.
i. Must say new system violates Const rts, can’t just as to reinstate exams
ii. So, different from Martin: higher hurdle to reinstate old system (exams),
white FFs must say failure to have exams = unconst, violates Title VII
iii. In Smuck: scope reduced, can only litigate what exists now
If black FF in Ohio sued, might use R19
i. But: R19 use hard b/c can’t identify all FFs: some not on force yet, unborn
1. May get CA on D’s side: to avoid, sue FF union (probably
financed 2nd suit)
ii. Black FFs didn’t want white FFs joined in 1st case: while joinder binds
white FFs, their inclusion may = more sympathy for city’s case
Suppose in 1st case, white FFs moved to intervene. What do black FFs do?
i. Argue city adequate represents, keep white FFs out by telling ct.: white
FFs adequately represented now, but still can sue later
How much real difference btwn majority & dissent here:
i. Difference is probably how much credence each gives to previous case
ii. Dissent didn’t say 1st case bound white FFs: they weren’t parties
Martin important: interests beyond efficiency, notice, representation, oppty heard
i. White FFs can’t be bound unless thru formalities of CA process
ii. Ct shd rarely join parties (ex, Provident) but R19 not solely about existing
parties, includes absent parties interests, so here ct. could try & encourage
iii. Mostly 3rd parties protected b/c not bound (but in CA, absent parties are)
p 39, Larry Lee, Civ Pro II Outline - Morrison
CLASS ACTIONS (CAs)
Overview on Class Actions
1. Reasons for class action, understand by typical class action: Phillips Petroleum v. Shutts
a. Small individual claims: class action b/c each P has small claim ($100 each), too
expensive for individual actions: filing fees, discovery, lawyers, etc.
b. Aggregation: Serious issue of for diversity (normally, at least one P > $75K)
c. Fees: US rule = each party pays own legal fees; UK = loser pays
i. Attorney’s fees – most P lawyers get paid contingency; others paid in
hourly, (incentive to keep working), yearly/monthly retainer, success
retainer, service retainer (price on items like divorce)
ii. Impact of adopting UK rule in US = Ps might be more reluctant to sue if
they might be responsible for corporation’s legal fees
iii. Significant policy choice: strongly discourages Ps who are poorer than D
1. E.g., having to pay GM’s legal bills
2. GM not likely to collect legal fees from poorer clients
iv. Some exceptions at common law. common in class action
1. Common fund (Shutts): if lead P paid all fees, no desire to lead
2. Not change in US rule, just supports idea whole P class must pay
3. Common benefit exception to US rule: CAs for equitable relief:
e.g., stockholders seeking reinstatement of voting rights, proxy
problems; union democracy (members sue if free speech taken)
a. Cases benefit all class members, so equity requires
company or union pay for P’s lawyers fee
b. Private attorney general doctrine: if citizens sue to uphold
law & help public at large, gov’t pays fee (Aleyesku
pipeline case ended this in fed ct., no lawyer fee exception)
4. Other older exceptions codified in Rule 11, 28 USC 1927
5. Bad faith rule: if you do something really nasty during litigation,
must pay (but limited to particularly nasty actions)
6. Fed & state statutes: create specific exceptions to US rule & say P
(or in some cases prevailing party) entitled to fee award
a. In some exceptions, 2 stds: if P wins, generally entitled to
fees; if D wins, only gets fees if P brought suit wrongfully
b. Apply whether or not there is class action
d. Ex: Shutts. Suppose Mr. Shits wants to bring his own action and not CA; if you
are rational D, you would just pay Shits his money (litigation is expensive)
e. Hypo: Why might school desegregation case be brought as CA?
i. Easier to divide interests of class by D (e.g., school will admit 1 or 2
minority students, but doesn’t want to 40-50% minority)
ii. Mootness: Ps (kids) get older, ruling when Ps adults so D says claim moot
1. But: S.Ct. allows claim to proceed: e.g., S.Ct. held divorce
requirement in IA required 1-yr residency; when ct. decided case
moot (spouse became resident), but ct. let named P represent class
iii. W/o CA, some potential problems, even if judgment fair & helps P:
1. Judgment only helps 3-4 people who brought suit
p 40, Larry Lee, Civ Pro II Outline - Morrison
2. Enforcement problem: since non-parties not bound, can’t enforce!
iv. Shows that CA not always about lawyers fees or small claims
f. Hypo: state incorrectly calculates food stamps people were supposed to get
i. Argument for bringing CA: indigent Ps can’t bring suit by themselves
ii. Against CA:
1. Cumbersome: can’t dismiss w/o ct., must apply for certification
2. If lose, let all people down – but claim may not work w/o CA at all
3. Some people have stronger and weaker cases
iii. Test case v. class action? What response from D (State) if you win
iv. If no issue of mootness, ask yourself if you need CA?
1. Just b/c you can bring CA, is it really necessarily?
2. Esp. if there is injunctive relief
g. Problem w/ CA: D lawyers call it “legalized blackmail”
i. Pressure to settle: ok if valid claim, but what if claim baseless? If class
certified – problem is media; D may still pay a lot for baseless claims
ii. What usually happens when there are baseless cases
1. D says “failure to state a claim” – move to dismiss under 12(b)6
2. Problems for D: Hard to win on 12(b)(6), & if facts construed most
favorably to P, hard to say “no valid claim”
3. If 12(b)6 not awarded, D faces discovery & it’s hard to get out of it
iii. So CA = blackmail b/c if P has any evidence at all, case goes to trial
1. Burden worse w/ CA: verdict for P expensive, risk of runaway jury
h. Suppose D pays big settlement. Who wins?
i. Not Named P: Don’t put up money, but get deposed, do other things
1. Used to just same settlement, nowadays gets a touch more as bonus
ii. Yes, Ps lawyer: fronts money but wins big time in common fund case
1. May take lower contingency (25% not 40%) but bigger recovery
2. Problem: Injured Ps get $1000s but lawyers get millions?
3. Due process problem: unknown Ps didn’t have chance to negotiate
fee w/ lawyers: should 25% bind them
iii. Judge’s review prevents worst abuses: have judge approve of lawyers fees
at end of case, even if judgment/settlement of common fund
1. But: P lawyer gets D pay lawyers fee on side, not from fund
a. But doesn’t matter: fee still implicitly comes out of Ps fund
b. Other reasons D wants to pay lawyer directly: some P
lawyers bring many cases, get reputed to be early settlers
c. Judge should still review lawyers fee for reasonableness
2. BUT: P lawyer gets D to settle before class certification
a. Problem: P lawyer appropriates asset of entire class to get
better settlement for D (even if D still lets other Ps sue)
b. So R23(e) interp = once CA filed, ct must review all fees
3. Key purpose: if class is bound, protect them; even if not bound,
don’t let lawyers use asset of CA threat for personal advantage
4. Different b/c of unrepresented class interests, cts. must supervise
2. Mechanics of Rule 23
a. R23(a) requirements apply to all CAs
p 41, Larry Lee, Civ Pro II Outline - Morrison
i. Numerosity – not usually a problem here
ii. Commonality/Typicality –usually thought to be very similar
1. Start w/ complaint to determine this:
2. For commonality, ask, “which law applies?”
a. Difficulty w/ defining class: if each member wants
favorable but different laws; D doesn’t want this law
b. Solution: (1) have subclasses based on state (2) avoid
conflict, use law of D’s domicile/ where goods were made
i. Risk: class may break, D adopted policies to get
best outcome (picking favorable state for laws)
3. Chicken & egg problem: interrelation btwn claims & class; w/o
this problem, probably no class
4. Amchem says you can’t just choose whatever law you want.
b. Adequacy of Representation: focus on adequacy of P or class rep?
i. Named Ps, yes, but attorney as well (named Ps have even less power than
lawyer; to some extent we mean the name
ii. Unnamed Ps – want to ensure they get good rep. Since they don’t litigate
iii. Concern over class P: if P’s claim really good, may not be typical
iv. Do you want P to plan strategy? Probably not.
1. In Securities Act of 1995, CAs under fed law presumes
shareholder who files claim & has most shares is class rep: has
largest stake in controversy & most likely to control P’s lawyer
v. But lawyer must make strategy:
1. Ask if lawyer experienced w/ CAs, law firm has money to do CA
vi. Problem w/ this position: Lawyers arguable shouldn’t run the cases
1. Client autonomy: even though clients not experienced, should have
some say; they’re not mannequins,
2. Esp. when leave realm of pure economics, something else at stake
c. R23(b): must be certified in at least one of 3 categories, after passing R23(a)
i. 23(b)(3) = claim for damages, easiest class, most common case
1. Money paid to each P matter of arithmetic, easy – also principally
just one legal claim (e.g., securities cases, Shutts, etc.)
a. D liab. to everyone or no one.
ii. 23(b)(2) = injunctive relief, getting D to stop doing something wrong
1. E.g., desegregation, Con law, statutory claims, agency actions
2. Consider if need class action at all or if test case suffices:
3. Check for mootness problem, continuing enforcement problems
iii. 23(b)(1) = stop multiple suits & inconsistent decisions
1. R23(b)(1)(A) cases could probably do it under R23(b)(2)
a. Language like joinder, goal & methods similar: to prevent
series of lawsuits & inconsistent decisions
b. Also like interpleader: same notions of efficiency, avoiding
many suits, due process (get day in ct. but only one day)
2. (b)(1)(B): also like intervention, Rule 19 again
a. All concerned with same general issues
p 42, Larry Lee, Civ Pro II Outline - Morrison
b. Recall Mullane: action to settle accounts on trust fund.
Issue was giving notice to all, but can’t as practical matter
c. Today, might try to give notice, might be easier to do CA
d. But opt-out undermines notion of finality
i. Mullane – said we should move on
ii. Ex: Robertson vs. NBA, Oscar Robertson tried to fix
anticompetitive rules; case = revised rules. If optouts OK, other players fight rules, wouldn’t work
3. In true (b)(1), (b)(2) case no opt out, b/c destroys final unity
a. In Fibreboard, Ps & Ds try to avoid Amchem & use
(b)(1)(B) to have no opt outs
b. Bankruptcy: provides non-opt out provision, statute
controls this, wouldn’t work otherwise
d. Employment discrimination cases
i. When brought at 1st: Ps did 23(b)(2) & asked for injunctions
ii. CA means you don’t deal w/ individual discrim, but group discrimination
1. Ex: tests irrelevant to job but discriminated v. minorities
2. Bring under 23(b)(2): b/c 23(b)(3) requires notice at P’s expense to
all class members; 23(b)(2) doesn’t erquire, saves time, money
3. But 23(b)(2) provides some concerns, problems if no notice
a. Due process: w/o notice, uninformed members will protest
that they didn’t have their day in ct
b. But is individual notice required? Mullane says must try to
give individual notice
c. So is (b)(2) = unconst? Or does it binds even w/o notice?
i. Take school desegregation case.
iii. 23(b)(2) – can’t opt out & notice
1. 23(b)(2) closer to true CA: unity, Ps similarly situated, need 1 law
a. 23(b)(2) no opt out b/c want one set of rules governing all
2. Also if no opt out, individual notice less vital; instead requires
good notice to big group (unlike implant case, should let Ps bring
own suits); b/c interests aligned, major objections less likely, but
absentees in class may object
3. Most Ds want to give good notice: want protection of res judicata
a. But don’t know all future class members (e.g., future
students in desegregation case)
b. Typically (b)(2) cases bind future classes & if notice
mandated to, say, unborn students, would be problem
e. In some cases, Ps want injunctive and monetary relief
i. Ex: in employment suit, Ps asks for “equitable relief”; no damages in
equity, but equity could offer restitution to injured Ps under 23(b)(2)
ii. AM: if restitution invoked thru 23(b)(2), other members may opt out to get
more $$: cts. generally (wrongly, to AM) unwilling
iii. In 1991, Civil Rights Act amended to provide these changing:
1. Before, could only get lost wages; now can recover other damages
(punitive, psychological, etc.)
p 43, Larry Lee, Civ Pro II Outline - Morrison
2. Other problems arise: allowing claims to go forward by (b)(2)
class, may improperly blur distinction btwn (b)(2) and (b)(3)
a. In Alison v. Citgo, you couldn’t certify whole class
iv. Could solve problem by having 2 classes bringing 2 cases in parallel
3. Silicone Breast Implant Problem:
a. Class 1: People who have been injured: how define them
i. “all persons injured by silicone breast implants” too large
ii. Problems w/ lack of defintion:
1. Ds argue that they can’t know what the limits are of the lawsuit
2. Absent class members can’t know if they’re part of injury group
iii. Could limit it to ruptures and leaks – this is pretty clear
1. Too narrow: ruptures relatively rare
2. People who have ruptures don’t want to be w/ those w/ just leaks
iv. Better to make injury subclasses? Breast implant case not what drafters of
R23 1966 Amendment had in mind (Shutts = typical CA, small claims)
b. Go back to breast implant problem, under 1st scenario, if we would have class
action at all, what part under 23(b)(3) – how do we go about doing this?
i. Use 23(a) 1st, ask if there common questions of law or fact
1. Here, questions of causation – look at the claims
2. Common questions of fact: D has wronged same way in every case
(if not, can’t even think about CA)
a. Did D manufacture breast implant & liability
b. Must have std. of liability, if it’s neg. or is there SL?
c. SL law not same in every state: not unified concept (but
neg. is pretty close to unified in every state)
ii. Also must prove causation (defect in fact caused of injury) & harm (hard
b/c different measures of damages)
1. General Causation: single causation or not?
a. Ex: smoking = general cause of heart attacks & cancer
b. Here, implants = general cause of auto-immune stuff
2. Specific causation: P-specific determination
a. Class determination hard (smoking: many w/ heart attacks
don’t smoke & many who smoke have no heart attacks)
iii. Other (b)(3) requirements that cause problems?
1. Predominance & superiority – claims don’t all have to be exactly
same, but common questions must predominate & be superior
2. P may not want D to just concede general causation b/c D may still
have lots of evidence & info that P wants
3. Superiority vs. actions not brought as class
a. Not enough time & $$ for members to bring injury claims
b. Why might you say as answer to superiority
i. Injuries might differ from class members
ii. As lawyer, get best settlement for individual client,
not class: find best forum (witnesses = doctor, etc.)
c. Answer to problem in (b)(3): could just opt out
p 44, Larry Lee, Civ Pro II Outline - Morrison
d. In Amchem, opt out not the answer or substitute for other
requirements; opt-out = downfall b/c too many Ps got out
e. So D didn’t want settlement b/c too many people opted out
f. People w/ worst injuries, in TX, best forums, etc. opted out
g. Combinations of opt-out made difficult to certify implants
iv. Need D’s cooperation to litigate class action if can’t meet requirements
1. Incentives for D to settle so they can maintain; can run out of $$ &
time (need to despose company officials, etc.)
2. Limit amount of exposure, gives them certainty about life
3. Companies have other products, can’t take reputation damage
v. Need subclasses: some similarities, bu significant differences as well
vi. Problem in settlement for subclasses: ltd fund & competition over this $$
vii. To settle class well, properly represented subclasses needed to split award
1. Future class members may = serious problems for companies in
these situations as to creating subclasses
a. Implants case: all Ps know they’re in class (unlike asbestos)
2. No case yet considers futures = subclass; problems w/ notice, etc.
3. Same problems arise in bankruptcy case
viii. Medical monitoring part of case
1. Here, people want help trying to control level of damages on
behalf of people who not sick or only minor illness right now
a. Psychological counseling, etc.
2. Difference btwn monitoring & leak/ruptures: focus on D conduct,
not on P’s injuries: D caused harm so liab. for all hurt, now or later
ix. What if you asked for pain & suffering damages for the class?
1. Each claims different level of pain, making it hard to certify case?
x. What problem if you don’t’ include this level of damages here?
1. Res judicata: can’t go back & get damages, b/c they’ve split their
claim, should bring it up all at once
2. Can exclude people w/ big personal injury –
3. Some states = 2-injury rule, latent injuries not precluded
4. Final word: this area just being developed in law of torts & bankruptcy
a. Enormous problems under currents rules assuring due process
b. Gets attention: intolerable to allow huge # of cases & to let lawyers to play God
c. Efficiency vs. Due Process: same problems w/ multi-party suits, joinder,
(Holocaust suits)
p 45, Larry Lee, Civ Pro II Outline - Morrison
JURIES, TRIALS, MOTIONS
Jury Trials
1. General history, stuff
a. 7th Am. keeps rt to jury trial in fed ct for any thing triable at jury in 1791 > $20
i. Everything at 1789 – K, torts, etc
ii. If Congress choose to provide the right to trial by jury;
1. Ex: anti-trust, RICO, disregard “preserved” b/c no RICO in 1789,
so didn’t exist then, so there would be no right to trial by jury
2. Try to figure out if case is legal or equitable
iii. Beacon theaters: conflict btwn no rt to jury trial by & triable issues vs.
non-triable issues (fed cts. try triable jury issues 1st)
2. Post trial motions: judge can’t overrule jury on witness credibility, Hutchinson (handout)
a. What’s going on here when 7th Am says, jury trial shall not be overturned
b. Problems w/ not letting judge (trial or app ct.) review jury verdicts:
i. No jury review might = justice but no LAW; jury could just do poor job
ii. E.g., jury finds P = contrib. negligent but still gives damages. W/o review
of verdict, jury changes law thru weird verdicts unreasonable fact findings
iii. Also, if judge gives wrong legal instruction, jury will screw up law
iv. We’ve seen similar controls on the law – 12(b)(6)
c. D made 2 kinds of motions in Hutchinson, only 1 gets to App. Ct.:
i. JNOV – Judgment as matter of law = failure of necessary fact
ii. Must do at end of P’s case; gives P oppty to add ev if P’s failed to do so
iii. Could be done at conclusion of trial or 10 days after
iv. Automatically stays time for appeal until motion is decided
d. What std. prevents P from winning as matter of law:
i. Not witness credibility b/c jury could decide this issue
e. Facts: civil rts case vs. gov’t alleging cop, under color of law, Assaulted & hurt P
i. Must prove cop acted under color of law or P’s 1983 action dismissed
ii. Issue properly done under JNOV, P fails to prove essential element of case
iii. Case goes to trial even if same std. for SJ
1. Suppose SJ motion failed & ct. enters JNOV; how could they?
2. Maybe key witness disappears; testimony changes, etc.
3. Evidentiary rules vs. P judge didn’t consider (inadmissible ev.)
f. Reasons why judge won’t grant SJ even if P hasn’t proved case & D is right
i. Protects judge from reversal by app ct.: less likely if case goes to jury
ii. If jury finds for P, judge can still overturn (JNOV)
iii. But doesn’t mean judge should never grant JNOV (ask how big case is)
g. Issues of proof & credibility in P’s case
i. Basis for SJ: P proves allegations (excessive force) w/ own testimony, but
only clear evidence is hurt finger
ii. Jury believed P, but issue = should we let jury believe him
iii. Judge didn’t say evidence insufficient, DV for D; no new trial
iv. Is witness credibility always jury question?
1. What if P only had own testimony, backed by 10 rabbis & priests
2. But we want these cases decided by juries
3. Is this the case? Any corroborative evidence?
p 46, Larry Lee, Civ Pro II Outline - Morrison
h.
i.
j.
k.
v. Clearly, an incident took place & P brought to stationhouse
1. Dist. Ct. focused on this “unknown room”
vi. Real dispute = excessive force; cops admit using force, but not excess of it
1. App. Ct.: clearly jury question; only JNOV if abuse of discretion
vii. Genuine dispute: ev on both sides, exactly when SJ shouldn’t be used
1. But after jury trial over, trial ct. overturns (BUT judge can only
decide if reas. juror could find use of force excessive)
2. Very high std: jury given responsibility for sorting through facts
Here, Dist. Ct. found jury verdict unreasonable BUT granted new trial
i. Why does ct say, “it is against the weight of evidence”?
ii. Here, Rule 59 = motion for new trial: most common ground = serious
mistake (jury incorrectly instructed, judge admitted prejudicial ev)
iii. Dist. Ct. said, “ev. inherently incredible, unbelievable, so order new trial.”
1. But no new trial, P files interlocutory appeal on D’s motion
App. Ct.: Dist. Ct. wrong, jury could have believed ev.
i. New trial OK, P has 2nd chance, but shd respect jury’s collective wisdom
ii. App Ct. ruling = P wins case & new trial limited to question of damages
On damages, App. Ct. didn’t say $50K too much: Dist. Ct. didn’t abuse discretion
i. Seems inconsistent w/ App. Ct.’s ruling on liability
ii. But App. Ct. just affirmed trial ct. damages, didn’t make its own finding;
since std. = abuse of discretion, App. Ct. could accept & say nothing
1. ltd issue: did trial ct. abuse discretion by overruling jury damages
iii. But damages award = question of fact, like liability, not law
1. Value of pain & suffering: look at medical expenses, lost earnings:
a. In Hutch: few injuries or emotional damages, no lost wages
2. Dist. Ct.: no reas. juror could have come up w/ $50K for P’s injury
a. Unclear why unreasonable (but: jury must have limits or
will effectively make up law)
3. Cuts down on appeals, but not catastrophic
4. New damages trial: at least P won verdict, can make D settle
Now punitive damages:
i. Trial ct. sees similar problems: worse than actual damages (which can at
least be calculated: medical bills); punitive completely up to jury
ii. D argues: punitive damages suspicious b/c exactly same as actual
damages; seems arbitrary (unlikely would be exactly same)
1. Dist. Ct. said punitive unjustified, must show willful/ outrageous
iii. App Ct. reinstates Dist. Ct. ruling on punitive, but orders punitive retried
1. How could trial ct. have come to this conclusion
2. Issue on punitive damages is fact: enough ev. to show willful/ evil
iv. App. Ct. got it ½ right: Dist. Ct. can’t take this verdict away from jury
1. Issue: jury trial about having peers try case; if you’re minority
maybe want minority jury, not patrician judge
2. Also: why not let jury’s passions take over sometimes?
v. App. Ct.: as matter of substantive law, determine actual damages 1st;
understandable relationship w/ punitive
p 47, Larry Lee, Civ Pro II Outline - Morrison
1. But: can make punitive damages high/unrelated to actual b/c cops
will beat up homeless (no jobs, = low actual damages if they sue)
2. Legit to allow high punitive damages despite small actual damages
a. E.g., antitrust law sets treble damages, jury doesn’t decide
b. But sometimes punitive damages have constraints
l. Remittitur: judge lowers amt. of damages found
i. Judge makes P agree btwn certain award ($50K) or another trial
ii. D could argue Dist. Ct. abused discretion by not finding $50K excessive
iii. Suppose judge gave P $1K actual & $1K punitive; App. Ct. agrees w/ liab.
but agrees w/ P that $1K = too small
1. Additur: Ct. could make D accept $100K or new trial
2. BUT SCt forbids additurs; takes case from jury & trial judge
a. Bad b/c additur makes different award to jury
b. But: why not apply same reason to remittitur?
c. Many states allow additur
m. Does Gasperini change (reinforce or undermine) Hutchinson?
i. Gasperini maintains key role of jury under 7th A
ii. On liab: probably changes: Gas protects jury & outcome, not Dist Ct.;
mainly limits App Ct.; Dist. Ct. has ltd role consistent w/ 7th Am.
iii. Actual Damages: likely no change: Dist Ct set aside, App Ct sustained in
Hutch: Gas upheld ltd. role of App Ct; here it respected DC’s discretion
iv. Punitive damages: likely no change: Hutch App Ct overruled Dist Ct
decision to reverse jury: Gasp would say this OK b/c Dist Ct abused
discretion, didn’t let jury decide witness credibility
v. Gas changes little, but = different terms to argue appeals: fed cts. not
bound by state rule, better result, but how much difference in long run
3. Motives for & against having jury
a. Ps want jury trials, but in many cases where jury would be fair, no jury desired
b. Reasons not to have jury trial (for P or D)
i. Sympathetic or unsympathetic D (or P)
ii. Very technical issue, judge more educated
1. Complicated cases = single assignment, 1 judge from start to
finish, don’t have to reeducate different judges
2. SJ: hard to know if appropriate, may involve issue of law
a. Even if can get jury, hard to ultimately decide issue, hard to
tell what jury did & didn’t do (esp. when issue = legal)
b. Ex: injury case w/ seaman (deckhand on boat); wants case
in state ct. in MO w/ no jury trial; seaman wanted judge
trial b/c 2-3 year wait for jury trial, 6 mo. wait for judge
iii. Speed/Timing: judge ruling faster
1. Jury case: must keep same jury during whole trial; jurors can get
sick or drop out; pressure to try case all at once for sake of jurors
2. Need to present proof in order (judge can take in random chunks)
3. Long cases better before judge: can read in spare time, take breaks
iv. Predictability: judge might be more predictable, jury might be wild card
v. Good judge: both sides trust
p 48, Larry Lee, Civ Pro II Outline - Morrison
vi. P or D Lawyer performs better w/ judge than jury
vii. If no jury, used to write statements, not testify (ex: expert testimony not
indicted, just methodology)
c. W/ jury, decide case this way: parties present args. to jury, judge instructs jury on
law. Jury deliberates, issues findings (specific for special verdicts or general)
i. Judge can overturn jury: bad instructions, inadmissible ev, 12(b)(6)
d. W/ no jury, judge must makes fact-findings & rules on law (Rule 52(a) requires)
i. Sometimes, unclear what is strictly fact & law (e.g., negligence)
ii. Judge muddles to avoid getting 2nd guessed: “I find these facts & laws”
Judges
1. Trial judge must write own findings of fact and law, Roberts v. Ross
a. Facts: App Ct. said trial judge essentially made decision 1st had trial after
i. Judge merely signed D’s brief as his own opinion
b. Problem w/ trial judge’s actions: should think thru reasons for conclusion &
THEN announce it; ratification of a party’s brief afterwards isn’t good
i. Parties want oppty to submit findings of fact and law
ii. Want judge’s reasoning to be fair & defensible
c. App. Ct. criticizes also critical of other things:
i. Dist. Ct. says P failed to prove case: merely a conclusion, no reasoning
ii. A functions of fact-findings = elucidate underlying reasoning for decision
d. Now easier for judge to sign party’s proposed findings: get disk/file & futz w/ it
e. Ways to reduce problem of judge just signing stuff:
i. Give other side rt to reply: summation helps lawyer pull case together: ev
comes together in ways lawyers can’t explain until after trial
ii. Forces submission of proposed findings of fact before trial
iii. At end of case, says to lawyers, “submit additional findings if you want”
iv. Also ask that proposed findings are keyed to exhibits and transcripts
f. Related problem: getting focused on fact-finding: what to do in jury case?
i. Have parties submit jury instructions at beginning of case
ii. Some cts. now talk about law to jury at beginning of case
iii. Potential for delay on trial transcripts –
g. Reasons judges must make proposed findings of fact and conclusions of law
i. Make judges think thru and take care in deciding the case
ii. App Ct: “Judge must obviously have gone thru & decided subsidiary
issues in case” –unclear: more likely, judge picked winner, skipped details
iii. Also makes easier for stare decisis for findings of fact
h. Remedy: App Ct. remanded, & told judge to decide correctly
i. Dist Ct flip-flopped & ruled other way
ii. AppCt could (1) remand & get new judge; (2) reverse as matter of law
i. Reasons jury need not issue fact/law findings, unlike judge
i. Facts: jury = many people deliberate & reason: solo judge doesn’t
ii. Law: jury instructions = law, equivalent of judge’s conclusions of law
iii. Despite 7th Am. reexamination: cts. willing to step in, even on facts
j. Standard or review for fact findings by judge
i. R52(a): fact-finding must be “clearly erroneous” – more rigorous than std.
of review applied to juries, but still deferential to judge
p 49, Larry Lee, Civ Pro II Outline - Morrison
ii. Anderson: R52(a) = substantial ev needed but still defers to trial judges
k. If higher std. of review, some people will not appeal
i. Presume trial judges get facts right & no reason 3 app. judges will get
facts any better: trial judge heard all testimony
ii. So anti-appeal bias in 52(a): Sense that appeals shouldn’t be done every
time: not last resort either, but don’t want all dissatisfied parties to appeal
Summary Judgment (SJ)
1. Generally: why have it? How different from motions to dismiss & directed verdict
a. Motion to Dismiss = assume facts true w/o discovery; SJ = after discovery
b. Legal std.: no genuine issue of material fact = depends on substantive law of
complaint, check for genuine issues of materiality (materiality = matter of law)
2. Lundeen v. Cordner
a. Facts: did decedent change beneficiaries & to whom: 1st wife’s kids or 2nd wife’s
b. Seems unclear if this = question of law, fact, or both:
i. Hypo: W1 argues unless all formal papers signed, no transfer. W2
contends, “no, there’s transfer if only ministerial duties remain”
ii. If all agree that no transfer on books, then case = strictly matter of law
iii. But in dispute here, all agree on law (transfer ok if only ministerial duties
left); issue is if decedent did everything but ministerial acts
c. Problem: company lost docs
i. If W2 argued only needed ministerial duties remaining, could do 12(b)(6)
d. So W2 moves for SJ, relying on Burks testimony: Socony benefits employee, said
he there when decedent filled out change of beneficiary forms
e. W1 wants to cross-examine Burks to hurt his credibility. Enough to overcome SJ?
i. Yes, if judge thinks reas. juror can’t find Burks credible & other ev in case
f. AppCt: jury might not believe Burks, but W1 must show jury Burks isn’t credible
i. Hard to show Burks not credible: affidavit uncontested, resides in
Singapore, has no motive to lie (not close friend of decedent)
1. Singapore issue: less problem if Burks in CA: can depose
witnesses in different state, but must go to depose them
2. W1 didn’t show can’t go to Singapore to depose Burks (But
expensive, unclear if worth it to W1)
3. But maybe unfair to tell W1, “You must go to Singapore!”
g. If SJ denied, W2 can’t appeal (except some interlocutory appeal)
i. If judge said Burks affidavit not enough for SJ: W2 has burden of proof,
must get Burks to testify, W1 wins automatically. Fair?
1. Obviously, law expresses preference for live witnesses at trial
2. Maybe not enough for W2 to get Burks dep in Singapore: W1 will
insist, “Unfair, right to trial by jury, jury may disbelieve him!”
h. App Ct. finds: something beats nothing, & “something” = Burks affidavit, and
W1 has nothing at all, so W2 wins
i. But: beyond possibility that Burks lied, may just not have remember correctly
i. They don’t care who the beneficiaries are
ii. AM: should have talked to insurance company, “Don’t you normally send
back confirmation of change of beneficiary”
p 50, Larry Lee, Civ Pro II Outline - Morrison
iii. App. Ct. does away w/ presumption of regularity to insurance company
1. Directed verdict for W2
iv. If affidavit and deposition not allowed as ev for SJ, always go to trial
j. 2nd issue: Burks testimony not helpful to show how decedent split benefits
i. Presumption that decedent gave 2nd wife kids all money
ii. But could also presume decedent split $$ evenly btwn all kids
k. Seems to AM that something strange is going on w/ W1
i. Didn’t want to take depo from Burks b/c didn’t think would get anything
ii. W1 thought SJ law was different & burden on W2 to bring Burks in
l. Case atypical of most SJ cases
i. Note: here, often 1 party moves for SJ before other party takes discovery
ii. Weird: W1 uninterested in discovery, not denied oppty to go to Singapore
iii. Take ordinary product liab. case: D argues no negligence (assume no
strict liab.), everything done properly
1. But D has all info; P asks for D’s docs w/o knowing which are key
2. Rule 56(f): if need ev to oppose SJ, can put in affidavit from P that
says, “this is what I need for discovery,” usually judge gives it
m. Affidavits enough to decide SJ (b/c rules say so)
i. Seems strange: if case went to trial, Burks affidavit inadmissible
1. Affidavits not valid in trial b/c can’t cross-examine
ii. Point of SJ = avoid pointless trial. If SJ required live witnesses, SJ useless
iii. Also fair b/c only need same quality of ev (affidavit) to refute SJ
iv. Difference btwn DV & SJ is ev. that we allow to decide
v. But: if witness can’t show up, can use dep if other side can cross-examine
1. Law prefers live witness but also recognizes must take alternative
2. Credibility not about making witness = liar, just chipping away at
testimony – here ask if Burks really had oppty to see something
3. Anderson (896)
a. Unclear why they make such a big deal
b. AM: Look SJ from perspective of incentives of the trial judge:
i. For granting: avoid trial, quicker; but you might get reversed
ii. For denying: may take more work to grant SJ than to deny SJ
1. Denial: judge can say, “genuine issues exist” w/o explaining much;
iii. SJ could push parties to settle: every step of litigation =
1. What about settlement if ct. grants SJ to D?
2. SJ changes amounts –almost no case for which D wouldn’t be
willing to pay instead of litigate (cost of lawyers, risk of losing)
iv. Suppose D loses SJ & P wins case: could always get DV at trial
v. But after SJ, parties have no incentives not to appeal anyway
c. Unclear after Anderson, Celotex if SJ used more (b4 2nd Cir always reversed SJ)
d. In some ways, these cases unusual: more typical SJ case Marisse –
i. D wanted to move for SJ & D put in affidavit said, “Ps were totally
unqualified” but P had no chance to take discovery
e. Usually, key issue in SJ = materiality
i. Significant disputes about relevance of evidence to a certain case
ii. Case-specific: no easy rule, need thoughtful judge in specific suit & laws
p 51, Larry Lee, Civ Pro II Outline - Morrison
iii. So some judges refer case to magistrates: but shifts job of deciding
relevance; judge doesn’t get into case
4. Celotex (888):
a. Facts: D has problem moving for SJ; must prove a negative, P (decedent) can’t
prove asbestos exposure. As D, how prove this?
i. Can’t prove negative: basically must show that P has no ev to prove case
1. But it’s not sensible to move for SJ – let P do some discovery and
ii. Really hard: D isn’t P’s employer, can’t get witness to say P not exposed
iii. Even P has no evidence of live witness who can testify to this
b. D then asks P interrogatories, “I want all ev. showing you meet burden of proof”
i. P brings forth 3 pieces of ev., then D moves for SJ, say this ev no good
c. AM: little difference between majority & minority, less than they think
d. If involved in case & someone moves for 12(b)(6) or SJ, respond by:
i. Show genuine issues of fact & that they’re material
ii. Look in subtle places: check brief conclusions: show they’re contestable
iii. Can also bring material facts of your own that you think are relevant
e. Don’t get locked into formalisms: who has burdens, etc.: if opposing SJ, assume
all burdens put on you: don’t hold back ev (P seems to in Lundeen or Celotex)
f. SJ useful even when denied:
i. Rule out or accept some theories: narrows/clarifies case = helps parties
ii. Denial of SJ very important to settlement: provides incentive to settle
1. Sometimes D wont’ discuss settlement until SJ is ruled on
2. If SJ denied & reality = D may lose, incentives change
iii. It’s like discovery: often more important for settlement than trial purposes
1. 95% cases get resolved short of trial
2. Can’t intelligently decide settlement until know other side’s case
Appeals
1. Final judgment rule: what and why
a. In fed ct, no appeal of right w/o final judgment (unclear why, but SCt interpreted
narrowly its authority to review state cases: must have no issues in case
b. Once case gets final judgment, takes w/ it all issues not previously final or
appealed: all issues go to Ct. of Appeals & can get ruling on any of those issue
i. Mootness: going to trial after SJ denied, opposing discovery after docs
already turned over, etc.
ii. Necessary corollary to final judgment rule: if trial ct. had error at some
point, it allows review at some point
iii. Some exceptions to final judgment rule:
2. Purpose of final judgment rule: prohibit delay, unnecessary appeals
a. Prohibit delay (Cost & efficiency)
i. Arguable problem allowing interlocutory appeals in fed cts: if
interlocutory appeal, what happens in interim: stop or keep going
1. If you stop, there is delay; if you keep going, ??
2. Paradigm issue = denial SJ motion: D doesn’t want to spend on
lawyers, discovery, witnesses (company officials)
p 52, Larry Lee, Civ Pro II Outline - Morrison
ii. Countervailing arg for P: if stop discovery, P gets no money,
postponement not good for client if client needs money badly
1. Also, ev gets cold, can’t get to trial, hard to locate witness
iii. So why would you want to let D take appeal here?
1. If appeal taken & D wins, case over, no unnecessary delay
2. But assumes appeal succeeds: appellant rarely wins cases
3. Also, SJ looks at evidence in light most favorable to P; may be
some material facts at issue
4. If SJ always appealable, D will: P = more pressure to settle
iv. So no interlocutory appeal on SJ: appeal of denied SJ don’t advance case
b/c likely to be affirmed; also defers to trial ct (fact finding under R52(a))
v. Could let appeal to go forward at same time as discovery: not terrible, but
appeal exists to end case: why allow discovery, too?
1. Other interests if simultaneous appeal allowed:
a. Judicial efficiency: case takes up 2 spaces in courts
b. (Appeal generally not efficiency problem, b/c takes one
space in appeal ct. but opens one in trial ct)
2. Many states have different systems: NY liberal about this
3. No necessary imperative to have system we have in fed cts
b. Preventing unnecessary appeal = stop litigation of issues that won’t matter
i. Aside from party winning appeal, what else makes unnecessary?
1. Settlement makes issue moot (but maybe issue led to settlement!)
ii. D in theory could always get appeal: refuse to follow order (ex: allow
discovery) & get contempt, which is appealable
1. Smart P doesn’t ask for contempt, gets adverse ruling v. D
2. But strategically risky to both: D may get bad inferences & adverse
ruling; P, w/o evidence, might not prove case
3. Shouldn’t have app ct supervise every evidentiary ruling
iii. Inevitable consequence: case will be decided on other grounds
iv. But little guidance on discovery anyway:
1. Discovery fact-specific; utility of reviews by App Cts ltd, b/c must
go thru facts, unlikely to help future litigants
2. Bad use of app ct: they correct errors, but also announce law for
lower cts: can’t help much w/ discovery
c. Helps focus: can be focused more as developed in trial
i. Denial of motion to dismiss; helps focus claims back in trial ct
ii. Cases often clearer when facts fully known: rule counsels against appeals
d. Final judgment rule generally good, but bad for injunctions & irreparable injury:
less comfortable w/ final judgment rule
i. But Congress recognizes these exceptions and …
Exceptions to final judgment rule
1. Rule 54(b): injunctions granted/denied, 2 categories: separate claims & parties
a. Separate parties: w/o appeal, problem if D gets tossed out early on:
i. If later find out 2 Ds needed to be joined but weren’t, burdens cts.,
witness, 2 Ds, etc…
p 53, Larry Lee, Civ Pro II Outline - Morrison
ii. Appeal may be unnecessary, might cause delay
iii. Issues not more focused w/ respect to that D
iv. Balance is different w/ delay & necessity
v. Appeal not automatic: protection built in, only when appropriate
vi. Ct must enter determine no just cause for delaying judgment vs. D
vii. W/o Rule 54(b) order, issue not appealable (see Liberty)
b. Separate claims: in fed ct. on diversity, P claims violation of fed & state law: ct.
throws out all fed claims: now, should cases be separate claims? How analyze?
i. Arg for treating as same claims: similar trial, same evidence & witnesses:
1. Relief the same! But warrant exception to final judgment rule?
ii. Arg: unnecessary appeal if P can still win case (but assumes theories are
same. If many theories, one of which was much different…)
1. Same protection for no just cause for delay gives trial ct. some
discretion to look at
iii. How broad are claims of separate
2. 1292: permissive appeals:
a. (a)(1): granting or denying injunction:
i. Can be abused: (ex: I command P to turn over documents in discovery)
ii. NO injunction: this way can evade final judgment rule, enjoin everything
b. Paradigm appeal of preliminary injunction: tearing down Poe house or not
i. “unnecessary”: statute applies to grant or denial of prelim inj.: either side
has right to go to Ct. of Appeals
ii. Std of review equal, but party against injunction less likely to prevail
c. In Liberty, would have been appeal if grant or denial of injunction
i. But here, order didn’t grant or deny yet
ii. Also, if order had denied to injunction, P would appeal (but in Liberty, D
appealed, so it reinforced notion that D was dicking around)
d. Congress wrote 1292(a)(1). Is rule 54(b) exception in same way?
i. Congress does rules under rulemaking authority: rules can’t change statute
ii. Rule 54(b) allowed b/c it interprets final judgment rule
3. 1292(b) certification: totally discretionary, opposite of final judgment rule
a. General theory behind discretion here
i. Hard to determine controlling questions of law
ii. Shd be rare: sometimes cases (collateral order rules) too important to wait
iii. Case like Liberty (below) typical for valid 1292(b) case: at least all
discovery on liab. occurred
b. Typical cases: collateral order rule, Mandamus, SJ (see hypo below)
c. Hypo: antitrust case btwn big companies, one asserts theory of antitrust liab,
everyone agrees material issues of fact & case must at least go into discovery
i. D asks for SJ, ct. denies SJ: important issue central to case that may be
wholly unnecessary if D is correct as matter of law
ii. As lawyer for D, not inclined to settle, need appellate ruling IF (1) case
goes to heart of business conduct or (2) if damages are so large…
4. Liberty Mutual Insurance
a. Facts: Discrimination case heard on merits: says no
p 54, Larry Lee, Civ Pro II Outline - Morrison
b. SCt defines limits to separate claims: b/c no 54(b) direction by trial ct., rejected
arg that claims separate
c. Ct. rejects for another reason: even if trial ct. had issued 54(b), App Ct. would still
not have juris. b/c there was only ruling on liability but no relief was granted
i. Not declaratory judgment “relief” b/c Ps never asked for it, wanted money
ii. Appealable if D had won on liab., b/c = final judgment.
iii. Suppose CA, P ask for injunction, many class members & proceedings
1. May be efficient to rule on liab before litigating other issues
2. And what about Rule 54(b): sounds like pretty
d. Ct. said appeal possible if trial ct. issued injunction/ filed for 1292(b)
i. SCt just said that 54(b) has standards and trial ct. didn’t meet them
e. Don’t make one rule bear burden of doing justice; 54(b) has one simple function
5. Certified questions (to allow for appeals):
a. Odd to make trial judge certify, say material questions, reasonable doubt, etc.
b. Materially advance outcome of case: motions usually made in connection w/
granted/denied SJ or motion to dismiss
i. Easy to argue w/ SJ/motion to dismiss: they end the case
ii. Factors cts should take into account
1. Magnitude of what resolution will do vs. what’s left in case
2. Any cases where cts would review & affirm denial of SJ/motion to
dismiss AND still materially advance outcome of case?
3. Might settle: D’s loses best shot at killing case, doesn’t want to
take time/money or might find discovery embarrassing
4. Still a risk for D not to settle after SJ denied by trial ct.
c. What happens in interim: reasons to let case proceed in Dist. Ct during appeal:
i. Times sensitive issues: witnesses who must leave, etc.
1. Dist ct. or App. Ct can decide to stay the case
ii. Appeal is not automatic even if dist ct. certifies
1. App Cts vary: some feel overburdened, don’t want to take
2. Dist. Cts. sometimes just want to get rid of hard cases
3. In Liberty, arg made: could treat case as 1292(b): Rule 54 different
4. Had to file application in 10 days of Dist Ct’s order, but didn’t.
d. Problems w/ certified question from D’s perspective:
i. Trial judge who D thinks is wrong decides whether D can appeal!
ii. Also, if 1292(b) if read literally: unclear what is “controlling question”
1. Judge may think an issue important but not controlling
iii. Controlling question and CAs: ex: ct was asked on interlocutory appeal
(tobacco case): whether CA certification was controlling quetison
1. In some places, CA certification is NOT controlling
2. One case (??) mandamus remedy: available to persons opposed to
class certification & trying to get App Ct. decertify class
3. HIGH burden for mandamus: not wrong, but clearly wrong
6. Collateral orders: judge-made, not statute (ex: R54(b), statutory injunction, or 1292(b))
a. Judges gets appellate juris. w/o statute: doesn’t create out of thin air, but interprets
“final decision”: case isn’t really over but ct interprets
p 55, Larry Lee, Civ Pro II Outline - Morrison
b. Mostly, SCt says no interlocutory appeal (but odd that App Cts, victims of
excessive appeals, wants to take cases & SCt tells them they can’t)
c. “Death knell”: failure to certify CA = not end of case nor final judgment
d. Collateral order = safety valve for hard situations but not discretionary review
i. Ex: cops claim no personal liab under 1983; if loses, can appeal as matter
of right, no discretion
e. Validated by SCt; authorizes other discretionary appeals
7. Cohen
a. State law: shareholders suing for fiduciary duty; SMJ = diversity
b. Appeal on whether statute actionable in fed ct: NJ statute said P must post
security bond
i. Dist ct. said this was not applicable in fed ct.: (ERIE!)
ii. Obvious problem here is no final judgment: case still ongoing
c. So if ct. ordered P to post bond: any arguable basis for appeal?
i. Looks like injunction unrelated to merits of case but isn’t under 1292(a)(1)
ii. If no appeal from order denying rule to post security, problem for D
1. No appeal now = too late
2. But point of rule is if D wins case, gets his costs covered
d. But ct. holds that insufficient for final judgment, imposes other requirements:
i. Unrelated to merits of case
1. Here, in some sense, it’s directly related to case merits,
2. But SCt probably wanted unrelated to substantitive matter of case,
not just subject matter somehow: Doesn’t advance case outcome
ii. Must conclusively determine the question
1. Even in Cohen, may argue question not conclusively determined
e. Detour on Erie: NJ statute in fed case
i. First question: are statutes in conflict
ii. Apply state law unless there is federal law? There is no provision that
says “you Don’t have to provide bond for cost”
1. R23.1 suggests what can be done but nothing explicitly about costs
iii. So if fed statute/rule don’t conflict, use state law: why didn’t ct. do this?
iv. Suppose there had been fed rule that didn’t require security for cost
1. Check 1652, then 2072: is it substantive?
8. Disqualification cases: grant/denial of disqualifying lawyer
a. Difference btwn lawyer disqualificaiton cases & other cases here:
i. Lawyer & client interests differ: disqualified lawyer loses fee & reputation
ii. Cts did not allow appeal of denial of motion of disqualification
b. SCt , however, also didn’t allow appeals of GRANTS of disqualification
i. Final judgment rule corollary: if not reviewable now, reviewable later
c. But problem: if P’s lawyer can’t appeal now, can’t appeal later
i. (1) Say denial of D’s motion to disqualify P’s lawyer: D tries case, loses &
appeals, raising failure to disqualify P’s lawyer. Problem for App Ct:
1. Sideshow!
2. Issue could determine outcome but can’t be effectively reviewed
3. Needs to take testimony from P’s lawyer
4. Could remand for full trial or say harmless error
p 56, Larry Lee, Civ Pro II Outline - Morrison
ii. (2) Say is P’s lawyer disqualified, P goes to trial & wins w/ new trial
1. P’s lawyer can’t appeal (not party) & defend reputation
iii. If P loses case w/ his disqualified lawyer.
1. Avoid problem of forcing P’s lawyer to testify about trying case
2. But now P might try to show that if he’d had his 1st choice lawyer
(who got disqualified) would have won
3. If denial of disqualification cases all appealable, encourage appeals
& more disqualifications, allows D to delay case
d. Benefit of discretionary appeal in disqualification cases than automatic or none:
sometimes, despite scope of review, SCt takes cases that it just thinks is wrong
i. App ct reverses 30-35% of cases; SCt reverses 65%
9. Lauro:
a. P (injured party) tries to sue vessel owner, owner tries to dismiss (b/c of forum
selection clause saying P agrees to sue only in Naples) & loses motion
i. App. Ct. denies collateral order: but when can ship owner appeal?
10. Cases show collateral order = blunderbuss, allows too many cases into App Ct.
a. To AM: collateral orders law inconsistent, outcome determinative, cts. allow
them when they shouldn’t; when determining collateral cases, cts.
i. But disqualification cases will keep coming up: like discovery, very fact
specific, burdensome, don’t declare any law really
b. Problem w/ death knell: weird P must say, “I can’t go on” when he can
c. Irony to collateral order: cts spend time deciding what is/isn’t collateral order,
when point of order is to minimize appeals
d. AM thinks that attempt to clarify collateral order is doomed