ࡱ>  bjbjoo $H  H H     H????????ӭխխխխխխ.вBխ- ????Cխ/"  ??/"/"/"GR ? ?ӭ/"?ӭ/"/"C  x Wn40HŤ/"/" ???H :   Due process What separates legitimate from illegitimate state authority is process, which determines whether the use of force is justified Goals of due process Fairness / equality\ Process regularity / reducing arbitrariness Fuentes v. Shevin (1972) White dissenting Mrs. Fuentes purchased a stove and stereo from Firestone on installment. A dispute developed between her and Firestone when $200 remained (Firestone retained title under contract), and Firestone filed action in small-claims court. Simultaneously and before Fuentes had received summons, Firestone obtained a writ of replevin and seized the goods. Writ of replevin under Florida law: Conclusory statement of party seeking writ Affidavit Bond Foundational approach: state must provide certain procedural safeguards. Checklist approach Notice Hearing Timely Judge Counsel With exceptions: Public interest at stake Exigency State retains monopoly of force Whites dissent: Instrumental approach Instead of laundry list, look more contextually and ask what is necessary to guard against erroneous deprivation, look at consequences Safeguards Post-deprivation remedies Bond Documentary evidence (easy for debtor / creditor claims) Mitchell v. Grant (1974) White D sold P a refrigerator, range, stereo, and washing machine on credit and later filed suit in Louisiana state court claiming $574 was overdue and unpaid. D submitted an affidavit of its credit manager, claiming D had reason to believe P would encumber, alienate, or otherwise dispose of the merchandise during the proceedings Based on the affidavit and Ds $1,125 bond, and without notice to P, a judge signed an order of sequestration and directed a constable to take possession of the items. Louisiana sequestration statute requires: Claim Affidavit with specific allegations Judge Bond Post-deprivation hearing with damages available Holding: Louisiana statute is constitutional because of these procedures North Georgia Finishing v. Di-Chem (1975) White Georgia law allows writ of garnishment of Ds bank account as part of contract dispute Georgia law requires: Suit No bond No judge No specific allegations No speedy post-deprivation remedies Conclusory affidavit Holding: unconstitutional WHITES CHECKLIST FloridaLouisianaGeorgiaSpecific allegationsX"XBond""XJudge (not clerk)X"XPost-seizure hearingUnclear"XDamages for mistaken writsX"XCONSTITUTIONAL?NOYESNO Connecticut v. Doehr (1991) DiGiovanni claims he s been injured by Doehr, puts an attachment on Doehr s home. Applies the Mathews test: Private interest is low not total deprivation attaches a lien but Doehr can still live in the house Government interest is no higher than the interest of the private party seeking the seizure when the state is acting on behalf of an individual Risk of erroneous deprivation Use Whites checklist Specific allegations none. DiGiovanni is interested only in securing payment in tort not interested in the house itself Bond Judge Post-seizure hearing Damages Goldberg v. Kelly (1970) Welfare benefits Holding: cant deprive of welfare benefits without a hearing Mathews v. Eldridge (1976) Disability benefits The more that is at stake, the more process is necessary The foundational checklist approach from Fuentes is no longer good law Mathews test Private interest Governments interest In seizure In less process Risk of error Checklist requirements from Mitchell and Di-Chem Ex ante disincentives to game the system Claim supported by evidence Non-conclusory affidavit Ex post factors to mitigate risk if someone has gamed the system Judge Bond Post-deprivation hearing and/or remedy Van Harken v. City of Chicago (1997) Posner Parking tickets. Chicagos procedure for reviewing parking tickets is adequate The less that is at stake the less process is due. Weigh Mathews factors against each other and against situations from other cases High stakes = deprivation of welfare benefits (Goldberg) Low stakes = $80 parking ticket (Van Harken) Pleading Rule 1 just, speedy, and inexpensive resolution Rule 3 a civil action is commenced by filing a complaint with the court Rule 8 notice pleading Short and plain statement of jurisdiction and claim showing P is entitled to relief, as well as a demand for relief Sufficient notice to allow D to answer Conley v. Gibson (1957) A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that a plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Interpretation of Rule 8 pleading must satisfy constitutional minima of due process by making sure D is fairly on notice of the claim U.S. v. Board of Harbor Commissioners (1997) Government filed complaints against SICO and NASCO for causing oil to be discharged into the Delaware River, which is prohibited under the Federal Water Pollution Control Act. D moved under FRCP 12(e) for a more definite statement on the grounds that the complaint filed against them by the government is so vague and ambiguous that they are unable to frame a responsive pleading as required by Rule 7. The complaint fails to specify (1) Which Ds are responsible for the alleged discharge of oil, (2) The amount of oil discharged and the removal costs incurred, and (3) The actions which are alleged to have caused the discharge By asking for this clarification, D is trying to create a higher entry cost into the system for P, find out what cards the government is holding D is cheapest cost avoider of information, P cheapest cost avoider about damages HYPO: what if the oil came from an outboard motor. Can the government sue all 100,000 motorboat owners? No, and the guiding principle is who has the information and who is the lowest cost avoider Efficiency: SICO / NASCO lowest cost providers of the information Incentives: government doesnt need to send in spies / raid the companies headquarters better off if the system lets them just ask for the information Fulfills goals of Rule 8: lets government in the door for cheap facilitate modern litigation McCormick v. Kopmann (1959) Mrs. McCormick sues the driver who hit her husband (claiming her husband was sober) and the bar that served him alcohol (claiming he was drunk). Court holds she is allowed to plead in the alternative inconsistent claims. Rule 8(d) pleading in the alternative is allowed, regardless of inconsistency Issacharoff says the court was wrong. What is McCormicks incentive to have an autopsy (and get the relevant information about her husbands intoxication) if she can pit Kopmann and Huls Tavern against one another? They will pay for the investigation against each other, and all she has to do is sit back and watch. She cant lose. She is the cheapest cost provider of information under efficiency reading of Harbor Commissioners she should NOT be allowed to plead in the alternative The rule says you can plead in the alternative in certain circumstances, not all. So we can tolerate the strategic implications of pleading in the alternative Kopmann and Huls Tavern could have argued that they would be prejudiced by the posture Rule 20(b) protective measures: court may issue orders, including separate trials, to protect party against prejudice arising from including person against whom the party asserts no claim and who asserts no claim against party Rule 42(b) sever claims to economize and avoid prejudice Mitchell v. Archibald & Kendall (1978) Grandpa shot in the face while parked outside Ds warehouse waiting to make a delivery. D filed 12(b)(6) motion because P was not on Ds premises. Rule 12(b)(6) complaint may be thrown out for failure to state a claim upon which relief may be granted If there is no legal claim under which P could win using the facts as pled (Mitchell v. A&K) 12(b)(6) is appropriate when the pleading is insufficient in some way Ps lawyer could have argued that P was on the premises but chooses to just admit that he wasnt and see if the court will acknowledge constructive premises. Why? Lawyer didnt want to go forward if he knew he was going to lose on that point later Testing the waters with the pleading Principal-agent problem Heightened Pleading Rule 9(b) heightened pleading standard for fraud, mistake, or similar claims Must plead with particularity inferences of fraud to protect against in terrorum value of suits Tellabs v. Makor Issues & Rights (2007) Ginsberg Heightened pleading requirement under 9(b) for securities fraud. Court held that [a] complaint will survive only if a reasonable person would deem the inference of scienter cogent and at least as compelling as any opposing inference one could draw from the facts alleged. Particularity: claims specific enough to induce an inference of scienter cogent (appealing forcibly to the mind or reason) and at least as compelling as any opposing inference of non-fraudulent intent. Not more than P would have to prove at trial, but enough so that a reasonable person is likely to think it is more plausible than not Compare Ps and Ds interpretations of the facts: comparative plausibility Problematic formulation of pleading standard because it assumes a world of facts, which has not emerged at this pre-discovery stage Begins to allow court to weigh facts at the pleading stage Court is worried about in terroren value of litigation Fraud cases changes the expected value calculus some reputational costs to D, potential catastrophic fall in stock price, etc. create a larger settlement zone This is in terrorem because it is extracting a bigger settlement than P could otherwise get simply because of its ability to impose costs that have no relation to the legal dispute Issacharoff: no reason to single out securities fraud; same issue in products liability, defamation, etc. But we understand that what Congress is trying to do is to raise the costs of entry of litigation because of the determination (right or wrong) that this is an area where the risk of in terrorem suits is high Swierikiewicz v. Sorema (2002) - Thomas P (Hungarian) worked for D (French company), and is demoted. P sues under Title VII of the Civil Rights Act and the Age Discrimination in Employment Act of 1967. Issue: whether employment discrimination cases require heightened pleading. Court holds the standard is 8(a)(2) notice pleading. Prima facie case for employment discrimination requires only that P state member of protected group qualified for the job and replaced by member of another group. Then burden shifts to D. Is employment discrimination like fraud under 9(b)? No. Expressio unius Rule 9(b) only says in cases of mistake or fraud Although Conley notice pleading should be all thats required, the court has been allowing judges to creep into the jury function to look at facts early Twombly Appears to throw out Conley notice pleading and require more facts up front Construed broadly overturns Conley pleading Construed narrowly only requires heightened pleading standard (more facts up front) for antitrust cases, or for cases with the potential to expose D to massive and costly discovery or have in terrorum value Harbor Commissioners comes out differently after Twombly Already pushing the bounds of notice pleading Distinguish: in Harbor Commissioners, no missing causal link because fairly sure one of them did it, as opposed to cases where the injury isnt even sure conduct of parties is not explainable by something else Markman Judge may make determinations of terms of art instead of jury if there will be efficiency gain in uniformity and quality gain in expertise At the summary judgment stage Matsushita judge may look at even disputed facts, generally reserved for jury, and dismiss implausible claims if they make no sense in light of the factual record Anderson v. Liberty Lobby although credibility issues must be left to the jury, O must have facts that tend to support an inference of defamation before forcing a protected institutional actor like the press into trial Policy arguments For liberal pleading We want to lower the costs of entry into litigation, make it cheaper for parties to sue than it was under common law, so that they can find all the relevant information efficiently during discovery rather than acquiring it privately We want to decide cases on the merits, not pleading technicalities But our system is very costly, and the courts decision in Twombly reflects the realization that we do not have the judicial resources to proceed this way we need a way to winnow down the number of cases that go to trial even further Answer Shepard Claims v. Williams Darrah (1986) D doesnt answer on time, argues confusion over whether parties had jointly agreed on extension. Rule 55: default judgments Rule 55(c): setting aside default judgments for good cause Three-part test for when to apply 55(c): Prejudice to P Does D have meritorious defense Culpable conduct by D Conduct is culpable when it is an attempt to disregard the system / prejudice P Zielinski v. Philadelphia Piers (1956) Z sues PP because the forklift that injured him had PP written on it, but PP isnt liable because Carload Contractors controls the forklift. The driver of the forklift is not an employee of PP, though he thought he was. By the time all the gets sorted out, Z cant sue CC because the statute of limitations has run. Z asks the court to tell the jury PP owned the forklift counterfactually to allow Z to recover from PP. Rule 10(b): state claims or defense in numbered paragraphs, each limited to a single set of sentences Rule 8(b): answer must include denials to each paragraph, precise and in good faith Rule 8(c): party SHALL set forth any affirmative defenses they have Such as not being the owner of the forklift Zs lawyer was an idiot and violated 10(b) why should we allow such an extraordinary remedy? Strategic behavior (sleaziness) on the part of PP causes the most extreme prejudice (loss of cause of action) to Z David v. Crompton & Knowles (1973) D claims they didnt have sufficient information to admit or deny that they designed, manufactured, and sold the paper shredder. They knew Hunter did, but werent sure of the terms of the merger. Deemed admitted, D cant amend. Rule 8(b)(5) party that lacks knowledge or information sufficient to form a belief about the truth of an allegation must so state, and the statement has the effect of a denial. Rule from David if you have the information, you have an obligation to get it, and you cannot rely on incomplete information in situations where the other side may be prejudiced Can D amend? Union Coin test: Undue delay of denial? Yes Prejudicial? Yes (ultimately so because P loses cause of action when statute of limitations runs) Meritorious defense? Yes Claim Preclusion / RES Judicata Rule 13(a) compulsory counterclaims Failure to raise a compulsory counterclaim leads to loss of the ability to do so in the future Just an explanation of the consequences of res judicata to counterclaims Wigglesworth v. Teamsters (1975) Wigglesworth sues Teamsters for denying his right to speak in union meetings, ostracizing him with a baseball bat. Teamsters wanted to bring a counter-claim for defamation. No diversity jurisdiction, so Teamsters can only sue Wigglesworth in fed court if its a compulsory counter-claim. Same transaction or occurrence test: Springs from common facts Res judicata Same evidence Logical relation Court says not same transaction or occurrence Issacharoff: this is wrong court just wanted to not let the mob sue their victim for defamation Rule 18 joinder Doctrine of res judicata actually requires they be raised or lost Claim preclusion / res judicata a final judgment on the merits of an action precludes the parties or their prives from relitigating issues that were or could have been raised in that action. Cannot bring claim or cause of action if, in a previous suit, The same parties or their privies were involved, The first suit arose from the same transaction or occurrence as the new suit, and The first suit had a final judgment entered on it by the court Rationale wasteful to litigate each cause of action separately Rush v. City of Maple Heights (1958) Motorcycle fall, P tried to bring separate actions for personal injury and property damage. Brought property damage first and won, then argued that City should be barred from contesting liability in later personal injury suit. Where a person suffers both personal injuries and property damage as a result of the same wrongful act, only a single cause of action arises, the different injuries occasioned thereby being separate items of damage from such act? Majority rule: As the Ds wrongful act is single, the cause of action must be single, and that the different injuries occasioned b it are merely items of damage proceeding from the same wrong. Am. Jur. Tradeoff between the modern era of transactional efficiency and the common law tradition of precision in pleading Efficiency advantage of modern rule Concern over strategic behavior lead with low value claim, as here Exception for intervening change of law or fact Not occasion for revisiting original judgment basis for curtailing the prospective effects of the earlier judgment Virtual Representative Martin v. Wilks black firefighters in Birmingham Court reaffirmed value of limiting the preclusive effects of judgments or decrees on parties ho had not had their day in court Manego v. Orleans Board of Trade (1985) Manego ran a roller rink, sued for racial discrimination. His case was dismissed for vague allegations. He later tried to bring anti-trust allegations. Court found the two allegations arose out of the same transaction or occurrence. All transactionally related claims not raised are lost Taylor v. Sturgell (2008) - Ginsberg Model airplane case Claim preclusion attaches to a P who has: Agreed to be bound by the determination in an action between others (test case) A substantive legal relationship with the first P (i.e. assignee/assignor, preceding landowners) Adequate representation in the first case Assumed control of the original litigation (e.g. subrogation) has already technically had his day in court Agreed to be a designated representative (acting as an agent of the precluded party) Been expressly foreclosed by a special statutory scheme [which] may expressly forclose successive litigation by non-litigants if the scheme is otherwise consistent with due process. Issue Preclusion / Collateral Estoppel Rationale Completeness of resolution through actual adjudication, which is an issue of efficiency. Maximizing the benefit of investment of social resources in a trial The function of issue preclusion is not to prevent litigation of an issue because it might have been litigated before [as with claim preclusion], but rather to prevent relitigation of an issue because it was litigated before. History of steady expansion in the scope of potential preclusion Classic Issue Preclusion Original Patent Suit (T1) Jones v. Smith Decided: Jones does not own the patent Second Patent Suit (T2) Jones v. Smith Jones may not argue that he owns the patent Mutuality of obligation If and only if the determination of fact could be deemed binding on both parties If second suit involves anyone other than original parties, can relitigate, because there was no mutually enforceable obligation between the parties arising from a prior decision Problems Jones could sue someone else at T2 and would be able to relitigate the patent issue even though it was already decided at T1 Original Patent Suit (T1) Jones v. Smith Decided: Jones does not own the patent Second Patent Suit (T2) Jones v. A, B, C Jones may argue that he owns the patent, even though he couldnt if he were to sue Smith Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation Patent infringement suit (Response to anomaly above) P who had raised a claim and had it decided against him on the merits can be bound to the result in subsequent cases, even against parties who did not participate in the initial proceeding, so long as P had had a full and fair opportunity to assert it, and so long as the factual determination was necessary to the outcome of the case P can be precluded even against parties who did not participate in the initial suit if P lost in the initial case P lost on the merits P had a full and fair opportunity to assert the claim The factual determination was necessary to the outcome of the case Rationale P chose the forum of the original litigate and which claims to pursue to judgment Original Patent Suit (T1) Jones v. Smith Decided: Jones does not own the patent Second Patent Suit (T2) Jones v. A, B, C Jones now may not argue that he owns the patent, the same as if he sues Smith Parklane Hosiery Co. v. Shore For the first time, allowed preclusion against a losing DEFENDANT Rationale efficiency Concern about the wait-and-see plaintiff If first P wins, second P can claim issue preclusion against the mutual Ds litigated defenses If first P loses, second P gains wisdom about trial approaches with no risk of prejudice in second case In each of a series of such cases, D is at a strategic risk of either winning one case or losing a thousand either win the case at bar or risk a preclusive ruling that would mean defeat in all subsequent cases Original Mass Harms Suit (T1) A v. B Held: B guilty of harming A Subsequent Mass Harms Suits C, D, E v. B Bs hands may be tied by the factual finding of A v. B B may not be able to defend by rearguing facts already decided Strategic implications D may spend more on litigation than is merited by the expected value of the individual case (tobacco strategy) Coordinated Ps might present the most sympathetic case first and then use preclusion on the others Response: Parklane court said not automatic issue preclusion, but determined under specific facts But broader application has been accepted by the overwhelming majority of jurisdictions A party may be held to an adverse finding in a proceeding in which he participated, but may not seek to bind a previously unrepresented party to the outcome of the earlier case. In other words: No preclusion against a party who has not had its day in court. A v. B (T1) A wins an issue A v. C (T2) C can argue the same issue, because she wasnt in court the first time A v. B (T1) B wins an issue C v. B (T2) B is not shielded; C may argue the issue. Perhaps C can do a better job than A. Parties and Joinder SMU v. Wynne and Jaffe (1979) 4 women suing law firm for gender discrimination Rule 10(a): the title of the complaint must name all parties Exceptions: express congressional grant or compelling need to protect privacy in a very private matter Exceptions are often in cases against the government, where the D will suffer no reputational harm Kedra v. City of Philadelphia (1978) Allegations of harassment and brutality against the Kedra family by the police Rule 20(a): persons may be joined as defendants if the right to relief asserted against them arises out of the same transaction, occurrence, or series of transactions or occurrences. If joined prejudice against the City If not joined prejudice against Kedra Judges solution: do discovery together, revisit severance motion Insolia v. Philip Morris (1999) Smokers fail to get class action, try again with joinder. Insolia must sever claims most information for litigation is already available (because of the attempted class action certification), risk of prejudice to P is low, no efficiency gain to join parties Distinguish from Kedra because already have info from class action attempt Pulitzer-Polster v. Pulitzer (1986) Were Mom and Sister necessary parties? Rule 19 joinder of parties 19(a) Required parties. Join if relief cannot be awarded in their absence Cannot accord complete relief (indivisible damages) Impair or impede the ability to protect their interest Double, multiple, or otherwise inconsistent obligations 19(b) when joinder is not feasible, dismiss or allow to proceed between present parties in equity and good conscience Four-part test: Ps interest Carol has basically the same claims in state court, so low Ds interest Uncle Sam is defending this same case, efficiency gain so high Absentees interest - mom and sister would be precluded in state court by a judgment for Carol in fed court Issacharoff thinks the court got this wrong Public interest waste of judicial resources to try the same claim in two courts Carol cannot bring this federal claim in equity and good conscience dismissed under Rule 19(b) VEPCO v. Westinghouse (1973) Westinghouse wants to say that INA (insurer) is real party in interest since they, not VEPCO, have the bulk of the losses Rule 17 an action must be prosecuted by the real party in interest Relaxes common law privity doctrine to allow more parties to sue Westinghouse tries to use this to exclude parties instead of include them, as the rule is really designed to do Potential prejudice to Westinghouse because of preclusion If W loses at T1 for liability, INA v. W can proceed on issue of quantum of harm alone, and W wouldnt be able to defend itself Asymmetry of risk: T1 can only be a partial victory but can also be a complete loss Serves modern function of Rule 17 protecting defendants from multiple litigation Impleader Clark v. Associates Commercial (1993) Clark sues Associates claiming they wrongfully injured him by pulling him off his tractor and breaking his legs. Associates defend by impleading the thugs who actually beat him up. Rule 14 Klotz v. Superior Electric Products [v. Butz] Trichinosis poisoning from pork sausage cooked on Ds grill in a college dining hall. S seeks to implead B alleging that Bs pork caused Ks food poisoning, not Ss cooker. Impleader not appropriate. S is pleading defense on the merits (I didnt do it because someone else did) rather than impleader / derivative liability (to the extent that I am liable someone else is) Interpleader Rule 22 all person with claims against D may be joined as defendants and required to interplead when their claims are such that D may be exposed to multiple or inconsistent liability (i.e. fixed pot / limited fund) Court must have independent basis for jurisdiction State Farm v. Tashire (1967) Terrible bus accident. State Farm insures driver Clark, brings interpleader action in Oregon federal court. State Farm can use interpleader because they have a FIXED POT Would protect against a race to the available damages BUT the $20,000 is too small a tail to wag the dog the bulk of the litigation would be inappropriate in Oregon because it would be unfair Intervention Rule 24 24(a)(2) intervention if right if absentees interest may be harmed if not joined Unless adequately represented Same test as Rule 19(b) 24(b)(2) permissive intervention claim (if P), defense (if D), and pending claim has at least one common question Court doesnt have to let you in If coming in as P, have to assess SMJ National Resource Defense Council (NRDC) v. US Nuclear Regulatory Commission (NRC) - 1978 NRDC wants to enjoin NRC granting licenses. Can United Nuclear (already granted a license), AMC, and Kerr-McGee (pending license applications) intervene? Three-part test in Rule 24: Do they have a significant interest? Could they be impaired by the decision if excluded? Are they already adequately represented? All parties allowed to intervene Class Actions Basics Prerequisites Rule 23(a) Numerosity Same question of law or fact Typicality Adequate representation Types of class actions 23(b)(1)(B) limited fund Cures problem with interpleader where wrong party is vested with power to join parties 23(b)(2) civil rights Declaratory or injunctive relief 23(b)(3) efficiency common questions of law / fact predominate and class action is superior method for fair / efficient adjudication of dispute, determined by: Superiority Manageability Predominance Rule 23(c) whether to certify a class For 23(b)(3) class actions, must give individual notice and the right to opt out of the class 23(c)(4) issue class Hansberry v. Lee (1940) Plaintiff bought home in all-white neighborhood. Court had already determined in Burke v. Kleiman that all-white covenant was legal. Generally, One is not bound by a judgment in personam in a litigation in which he is not designated as a party or to which he has not been made a party by service of process. Adequate representation Hansberrys not adequately represented by Kleiman would mean that transferring deed created new interest Mullane v. Central Hanover Bank & Trust (1950) Plaintiff, trustee for income of trust, wants trust members to get individual notice. Requires notice to plaintiffs represented by class despite small interest in the case and relatively expensive costs to communicate effective notice Holland v. Steele Plaintiff wants to certify as a class all persons who are or will be detained in the Dade County Jail in GA. Can certify a class of imaginary plaintiffs if we are dealing with injunctive relief Castano v. American Tobacco Massive tobacco case. Plaintiff attempts to certify issue class under Rule 23(c)(4). Raises numerous issues related to 7th Amendment and the certification of class actions for immature torts. The most compelling rationale for finding superiority in a class action the existence of a negative value suit is missing in this case Common issue of law / fact Varying state laws Varying individual facts Different standards of negligence No efficiency gains / no transactional savings because of IMMATURE TORT In the Matter of Rhone-Poulenc Rorer, Inc. Litigation against manufacturers of blood solids by hemophiliacs exposed to HIV. Posner opinion focusing on reviewability of jury determinations by second jury (the reexamination clause problem) and on the need to conform trial to the underlying substantive law. Amchem v. Windsor Settlement offer to class in context of asbestos litigation. Case introducing the problem of structural conflicts in representation. No adequate representation no structural assurance that future claimants would be represented Ortiz v. Fibreboard Attempted certification of asbestos class action as 23(b)(1) limited fund class. Martin v. Wilks Suit brought by white firefighters in Birmingham, seeking to challenge the hiring and promotion practices of the Birmingham Fire Department. White firefighters were NOT adequately represented in the first suit, so not barred from day in court We dont want de facto class actions by barring absent parties with aligned goals (no notice, no op-out) Discovery Rule 26(b)(1) Parties may obtain discovery regarding any nonprivileged matter that is relevant to any partys claim or defense For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Hickman v. Taylor Attorney interviews witnesses and takes notes. Opposing counsel requests contents of notes in interrogatory. Attorney claims privilege. Discovery does not apply to privileged information. Court discusses when work product that is not privileged is still not discoverable. Kozlowski v. Sears, Roebuck & Co. (1976) Plaintiff, a minor, burned when his pajamas caught fire. Plaintiff brought a product liability action against the pajamas' retailer and a manufacturer. Plaintiff filed request to produce under Rule 34 seeking record of all complaints and communications concerning injuries or death similar to Plaintiff. Defendant didnt produce documents, default judgment against Defendant under Rule 37 b/c failure to comply was willful and deliberate. If D has control of the records and P has reasonable need of them D must produce records and cannot benefit from a system that makes it unduly difficult to identify or locate them, thus rendering the production of the documents an excessively burdensome and costly expedition. Good record keeping is cost of doing business in the modern world Davis v. Ross (1985) Case involving Diana Ross, Supremes. Davis wanted Rosss net worth in discovery would injure Ross in another litigation, without proper retaliation. Coca-Cola Bottling v. Coca Cola (1985) Bottlers demanded secret formula in discovery. Court deemed the information relevant to the litigation and ordered Coca-Cola to hand it over. Coke capitulated to extortion rather than hand over the trade secret. McPeek v. Ashcroft (2001) Complaint alleging improper retaliation under employment laws. Plaintiff wanted government to search backup files for potentially discoverable material. Judge employs innovative sampling technique. Balancing test do a test run to reconstruct backup tapes most likely to have information In re Convergent Technologies (1985) Example of excesses possible under modern discovery rules. Judge notes various problems which arise from counsel seeking tactical advantage through discovery. market failure for information by not regulating on a case-by-case basis we invite willful and strategic misconduct, like Ross and Coca-Cola Bottling. Zubulake v. UBS Gender discrimination case raising numerous novel issues in e-discovery. Summary Judgment Only appropriate after discovery out of the box summary judgment motions are disfavored Adickes v. Kress Burden on movant to foreclose the possibility of non-movant producing evidence to support her case, absolute absence of genuine issue of material fact But this is philosophically impossible Celotex Movants burden of production on motion is equal to burden of proof on claim, which for D is zero Rehnquist: Curries 0% standard Need only point to absence of fact, then P must produce whole trial package Wants summary judgment to become a usable tool to serve the winnowing function that directed verdict does, but before the trial starts Dissent: Louiss 50% standard Point to absence of fact by summarizing the record or an issue on the record Matsushita v. Zenith Summary judgment is appropriate when disputed facts make no economic sense Have to show more facts to exclude the possibility of independent action rather than illegal coordinate This means we can constrain it to antitrust cases But in negligence it is only preponderance of the evidence standard (51%) so dont have to exclude the possibility, just show that it is more likely than not Anderson v. Liberty Lobby Summary judgment particularly appropriate to protect certain institutional actors like the press from a protracted trial But still only have to have evidence such that a reasonable juror could possibly find for P preponderance of the evidence Weighing of evidence and credibility determinations must be made by the jury, not the judge Markman and Twombly Not summary judgment cases, but both show the encroachment of the judge into the jury function Judges recognize the need to get cases off the docket, and they want tools to narrow down the funnel, so they will make certain factual determinations in the interest of efficiency and expertise, as well as knock out certain claims if they dont plead enough facts up front Personal Jurisdiction In personam accountable in personal capacity as citizen of territory In rem land is accountable because within the territory Quasi in rem personally accountable because land is within territory Based in traditional notion of territoriality Pennoyer v. Neff (1878) Neff entered into a contract in Oregon, breached it, then ran off to California. Conditions for personal jurisdiction: Domiciliary In-state service Consent Three challenges to Pennoyer test: Mobility of population (automobile) Hess v. Pawloski World-Wide Volkswagen Burnham v. Superior Court Mobility of business (corporation) International Shoe McGee v. International Life Calder v. Jones Keeton v. Hustler Asahi Mobility of information (internet / globalization) Zippo Pavlovich v. Superior Court Transactionally-related personal jurisdiction Hess v. Pawloski Hess sued Pawloski, a Pennsylvania resident, in Massachusetts for personal injuries sustained by Hess in an accident with Pawloski in Massachusetts. Jurisdiction based on Massachusetts statute that said acceptance by nonresident of privilege of operating car w/in state deemed equivalent to appointing registrar of Massachusetts to receive notice in action against nonresident. The court holds that Massachusetts has jurisdiction under Pennoyer by virtue of two legal fictions By driving on the Massachusetts road, D has implicitly consented Service on Ds agent registrar satisfies consent requirement International Shoe v. Washington P, a Delaware corporation based in St. Louis, with no offices in Washington, claims that service of process given to its salespeople in Washington is not sufficient to grant personal jurisdiction in Washington. Minimum contacts Systematic and continuous activities in the forum state Contacts are transactionally related to the cause of action Fair play and substantial justice Claims not to overturn Pennoyer Justice Blacks dissent Dont need fair play and substantial justice With minimum contacts, it is per se fair play to hale them into court in the state minimum contacts are necessary and sufficient for jurisdiction McGee v. International Life D, an insurance company based in Texas, is sued in California by the mother of their only policy holder there. D challenges California jurisdiction. Court held that even though D had only one contact with the forum state, it still has jurisdiction. Purposeful availment D solicited the contract in California World-Wide Volkswagen v. Woodson Robinsons buy an Audi in New York and drive it through Oklahoma on their way to Arizona. They get in an accident in Oklahoma and the car explodes. They sue World-Wide Volkswagen in Oklahoma state court. Held: no jurisdiction because chattel-driven contact does not meet the minimum contact requirement. Foreseeability World-Wide Volkswagen couldnt reasonably have anticipated that stream of commerce would extend this far chattel-driven movement is insufficient to constitute sufficient minimum contacts. Interpreted in two ways: Purposeful availment by D Marketing, channels for customer service, advertising, agents (as set out by OConnor in Asahi) Stream of Commerce Aware of the possibility that product would end up there Deriving economic benefit Balance did WWV enjoy the benefits of Oklahoma laws / take advantage of the market in the forum? NO Calder v. Jones National Enquirer, a Florida corporation, published a story about Jones, a California entertainer. Jones sued D for libel in California state court. Jurisdiction upheld, even though D never set foot in California, because D caused EFFECT there by writing defamatory statement Ps home and work in California, so harm to his reputation would occur there Responding to the problem in International Shoe of D-only analysis Harry Reams, Deep Throat Film distributed in Tennessee, state sues actor Harry Reams on criminal charges through hes from New York and the movie was filmed in New York. Takeaway: major worry that a jury in rural Tennessee will be able to decide what we can watch in Manhattan. Also applies to international scene Nazi paraphernalia on Yahoo illegal in France Pavlovich v. Superior Court (2002) D posts website allowing for illegal copying of DVDs. P argues jurisdiction in California is proper, given D could foresee harm to Hollywood and computer industries, both of which are in California. Rejects focus of the injury knowledge of the central place of harm is insufficient to confer personal jurisdiction Communication by a universally accessible internet website cannot be equated with express aiming at the entire world. Incompatible with Calder v. Jones Asahi Metal Industry v. Superior Court (1987) OConnor Zurcher, a California resident, is injured by a motorcycle for which Asahi allegedly made a component part. Zurcher drops out and it is only Asahi and Cheng Shin, a Taiwanese corporation. Four-part balancing test for fair play and substantial justice: Burden on D Interest of the forum state Ps interest in obtaining relief in the forum state Overall systemic efficiency Applied here: Severe D has to travel from Taiwan to California Slight all that remains is a claim for indemnification asserted by Cheng Shin, a Taiwanese corporation, against Asahi Considerably diminished NOT a California P wouldnt be the most efficient way to enforce corrective justice vs. Asahi Low no outstanding factors make California a better forum than anywhere else OConnors suggestion for minimum contacts incorporated into Ds burden in the balancing test Designed for forum Advertising in forum Service in forum Sales in forum Burnham v. Superior Court (1990) - Scalia P, a New Jersey resident, is served with divorce proceedings while in California visiting his children. Held: Pennoyer is still good law. No challenge to jurisdiction with in-state service. Burnham defendant invokes Shaffer Scalia rejects Shaffer reasoning because of originalism Brennan accepts reasoning but weakens the due process balancing test beyond recognition to say that the case comes out the same way The key is the state interest, which in this case should have been Californias interest in keeping the case in state because the administration of custody will be in California. Instead, Brennan defines the state interest as D having savored the fruits of California law, which means that the state has an interest as soon as anyone sets foot in the territory. So under this weakened standard, the case comes out the same as under Scalias opinion refusing to apply the balancing test. General Personal Jurisdiction Helicopteros Nacionales de Colombia v. Hall (1984) Does Texas have general personal jurisdiction over Helicopteros, a Colombian company? Rule 4(f) requires all businesses doing business in the U.S. to designate one place in the U.S. where they can be served Sufficient contacts (looks like OConnors minimum contacts in Asahi) Continuous and systematic contacts Place of business Licensed to do business Commercial contacts Bank account Subject Matter Jurisdiction Article 3 of the Constitution gives SCOTUS the power to hear cases Between citizens of different states Arising out of federal law 1331 Federal Question Jurisdiction 1332 Diversity Jurisdiction Complete diversity $75,000 amount in controversy Mas v. Perry French citizen married to an American citizen, suing landlord for watching them through a two-way mirror in their apartment. Complete diversity under 1332 for diversity jurisdiction $75,000 amount in controversy Mottley A couple injured in a railroad accident gets lifetime free passes in return for an agreement not to sue. Then Congress passes a law saying that railroads are not allowed to enter into special nonpublic tariff agreements, and holding those already entered into to be unenforceable. The Mottleys sue the railroad for enforcement of the passes, and they claim there is a federal question because the railroads defense will be the federal statute, and the case will ultimately turn on the constitutionality of the statute. Mottley Rule the federal claim has to be apparent on the face of the complaint If P chooses to file in federal court, it must be P that has a federal claim, not that D has a defense based on federal law that will likely be raised Four corners rule Merrell Dow Pharmaceuticals v. Thompson Suit by Canadian and Scottish citizens against manufacturer of Bendectin, a morning sickness drug that caused birth defects. Ps trying to keep the case in state court, because the federal court will throw the case out for forum non conveniens. On the face of the pleadings, P is suing under state tort claims Not stating a federal claim, so would fail the Mottley test Holmes test federal subject matter jurisdiction exists where federal law specifically creates the cause of action Merrell Dow facts would not meet this test because the FDCA does not give a private individual right of action Four-Part Test for Implied Federal Right of Action: P is intended beneficiary of the federal statute Legislative intent to have private right of action (like Title VI housing discrimination) Private right of action would further the statutory purpose Not an area of traditional state interest Example: Title VI for housing discrimination doesnt include a private right of action, but the other civil rights statutes did. Title VI was obviously to protect civil rights plaintiffs, not an area where the state was trusted to create a remedy, so we should read an implied As applied to Merrell Dow facts: Ps are not part of the class for whose special benefit the statute was passed The indicia of legislative intent reveal no congressional purpose to provide a private cause of action A federal cause of action would not further the underlying purposes of the legislative scheme, and Respondents cause of action is a subject traditionally relegated to state law Neither side actually argues for this, because P wants to stay in state court and D does not want to open itself up to liability under the FDCA instead of just common-law state tort claims Federal ingredient Even though no express or implied federal right of action created by Congress, nonetheless the federal interest is so significant that it should be adjudicated in federal court Is the litigation going to turn primarily / exclusively / significantly on an interpretation of the underlying federal statute? In other words, will the state question necessarily turn so entirely on a federal question that it renders it essentially a federal question? Three-Part Test for Federal Ingredient: Substantiality state question will necessarily turn on interpretation of federal question Uniformity interest in having issue decided for the whole nation Special Circumstances i.e. novelty of issue such that there is need for federal expertise in interpreting federal law Essentially collapses federal question inquiry into implied right of action test essentially there will be a federal ingredient when it looks most like an implied right of action. Ends up getting folded into implied right of action test, need evidence of advancement of statutory purpose to satisfy federal ingredient Court splits 5-4. Majority says the Federal Ingredient standing alone is not enough, unless there is an indication by congress that they wanted them to be heard under Federal law. Majority says there cant really be a federal ingredient, because it would be too expansive. Dissent says it depends how substantial the federal law is in the question: wherever there is a significant question of federal law it belongs in federal court. Relies on Smith Regulatory problem If the majority is right, we risk undermining the integrity of federal regulatory practice, the balkanization of federal regulations which are supposed to ensure uniformity, now are increasingly subject to being integrated into state contract or tort law where they are interpreted inconsistently If the dissent is right and we say that as long as theres a federal law interpretation possible then federal courts will get the case, and we risk federalizing all of tort and most of contract law, which removes states as laboratories of democracy. Monumentally important case because now the courts are thinking about preemption Grable v. Darue Facts like Pennoyer action for quiet title. The federal question comes in because of the tax code. Court rejected any reading of Merrell Dow that would have required either an express or an implied federal cause of action for federal question jurisdiction Merrell Dow not adopting the Holmes opinion, which would convert a federal cause of action from a sufficient condition for federal question jurisdiction into a necessary one Merrell Dow treats the absence of a federal private right of action as evidence relevant to, but not dispositive of, the sensitive judgments about congressional intent required by 1331. Claims not to have overturned Merrell Dow confined only to situations in which there is no concern of federalizing large swaths of state law If fed law already embedded in state court you should have the fed courts decide it - Grable But if its already in state court it should stay there Merrell Dow Souter: small set of cases Look at comparative capacities of federal and state courts Similar to Markman analysis, who is in best position to answer the question without risking the division of labor between federal and state court Does the state cause of action depend on a federal law question? Look at potential balkanization of federal law or federal governments particular expertise on the issue Federal regulatory interest / fed court expertise relative to state who is best positioned to answer the question Turns substantially on federal question Supported by congressional intent about the division of judicial responsibilities between federal and state Wont balkanize federal law Wont federalize state law The national interest in providing a federal forum for federal tax litigation is sufficiently substantial to support the exercise of federal-question jurisdiction over the disputed issue on removal, which would not distort any division of labor between the state and federal courts, provided or assumed by Congress High federal interest in answering the question (i.e. in determining issues re national tax collection) Supplemental Jurisdiction Supplemental Jurisdiction Statute, 28 USCS 1367 (2002) (a)so related to claims in the action within such original jurisdiction that they form part of the same case or controversy (b)In any civil action of which the district courts have original jurisdiction founded solely on section 1332 of this title, the district courts shall not have supplemental jurisdiction under subsection (a) over claims by plaintiffs against persons made parties under Rule 14, 19, 20, or 24 of the Federal Rules of Civil Procedure, or over claims by persons proposed to be joined as plaintiffs under Rule 19 of such rules, or seeking to intervene as plaintiffs under Rule 24 of such rules, when exercising supplemental jurisdiction over such claims would be inconsistent with the jurisdictional requirements of section 1332. (c)The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if-- (1)the claim raises a novel or complex issue of State law, (2)the claim substantially predominates over the claim or claims over which the district court has original jurisdiction, (3)the district court has dismissed all claims over which it has original jurisdiction, or (4)in exceptional circumstances, there are other compelling reasons for declining jurisdiction. United Mine Workers v. Gibbs Federal claim for antitrust violation and state claim for tortuous interference with contract arose from the exact same behavior on the part of the union. Common nucleus of operative fact Source of statute Owen v. Kroger Kroger is citizen of Iowa, sues OPPD (Nebraska corp), which impleads Owen (Krogers employer). Owen is also from Nebraska. So it looks like there is no diversity in OPPD v. Owen. Ancillary jurisdiction says that for purposes of efficiency, OPPD v. O can go forward in fed court. During course of litigation, Owen becomes citizen of Iowa (through movement of river). Kroger now sues Owen in same suit. Kroger and Owen are now from same state. Under Gibbs, seems that this case should be allowed to go forward in federal court, along with other claims. No substantial federal question, because only based on diversity. But other factors are there. Seems like Kroger should be able to sue Owen under Gibbs. All of the efficiency args run the same way. So why is this different than Gibbs? If there is no jurisdiction in case between Kroger and Owen, Kroger could just file against all parties in state court. Difference with Gibbs: These are state law claims and we want to concentrate them in state court. What rule can we generalize from these two cases? When claims arise only from state law, want to create incentive to file in state court. If Kroger wants efficiency Standard for removal jurisdiction: Whatever could have been brought originally in fed court can be removed to fed court The Erie Doctrine Governs the choice between state and federal law. Swift v. Tyson Case decides whether federal courts sitting are to apply state substantive law, and whether than includes state common law. When federal courts are hearing cases under diversity jurisdiction, they must apply state law. However, state law is held to include only statutes, not common law. Black & White Taxicab v. Brown & Yellow Taxicab Brown & Yellow has exclusive dealing contract to service certain railroad station. Challenge to validity of contract. Raises conceptual, practical problems with doctrine of Swift. Erie v. Tompkins Under Pennsylvania common law, Plaintiff is a trespasser, so the RR owes him no duty. Under federal common law, Plaintiff is an invitee, so RR owes Plaintiff a duty. Readdresses issue in Swift v. Tyson. Guaranty Trust v. York Class action is brought in federal court based on diversity. The statute of limitations is different depending on whether state law or federal law is applied, and thus will be outcome determinative. Cohen v. Beneficial Industrial Loan Corp. State law required posting of bond by plaintiffs for certain derivative actions. Question of whether this conflicted with Federal Rules. Ragan v. Merchants Transfer & Warehouse Co. Question of whether federal or state rule should apply regarding tolling of statute of limitations period. Plaintiff was barred from bringing suit under Kansas law, but would not have been under the Federal Rules of Civil Procedure. Woods v. Interstate Realty Co. Dealt with state door closing statute, which barred out-of-state corporations from suing within the state unless they first consented to service of process there. Court applies test from York. Hanna v. Plumer Question is whether federal court should follow state rules regarding service of process. The service of process rules in this case are outcome determinative, so under York, state rule would apply. The majority opinion (by Warren) analyzes issue for rules that appear in the Federal Rules, and a concurring opinion (by Harlan) does an analysis for rules that do not. Gasperini v. Center for Humanities, Inc. Professional photographer sold $10k worth of pictures over many years. Gave pictures to outfit and they lost them. Question arises as to what is the standard of review is to be applied on appeal. The Erie tension is played out over whether using the New York state rule would be outcome affective. Lawyers and Clients Hickman v. Taylor Attorney interviews witnesses and takes notes. Opposing counsel requests contents of notes in interrogatory. Attorney claims privilege. Discovery does not apply to privileged information. Court discusses when work product that is not privileged is still not discoverable. Marek v. Chesny Defendant gives Plaintiff settlement offer of $100,000 when Plaintiff attorney fees are $32,000. Plaintiff rejects offer. At trial, Plaintiff wins $60,000 after expending $172,000 in attorneys fees. Plaintiff claims Defendant must pay attorneys fees under fee shifting for 1983 claims. Zuk v. EPPI Case dealing with Rule 11 sanctions post-1993 Amendments. Lawyer files ridiculous case, both as to facts and law. Evans v. Jeff D. Class action is brought under civil rights statute that provides for fee shifting. Plaintiff was seeking injunctive relief at trial. 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Shevin (1972) White dissenting & Mitchell v. Grant (1974) White 7 North Georgia Finishing v. Di-Chem (1975) White Connecticut v. Doehr (1991) Goldberg v. Kelly (1970) Mathews v. Eldridge (1976)3 Van Harken v. City of Chicago (1997) Posner Pleading Conley v. Gibson (1957)1 U.S. v. Board of Harbor Commissioners (1997) McCormick v. Kopmann (1959)+ Mitchell v. Archibald & Kendall (1978)Heightened Pleading8 Tellabs v. Makor Issues & Rights (2007) Ginsberg , Swierikiewicz v. Sorema (2002) - Thomas Twombly MarkmanAnswer. Shepard Claims v. Williams Darrah (1986) + Zielinski v. Philadelphia Piers (1956)' David v. Crompton & Knowles (1973) Claim Preclusion / RES Judicata% Wigglesworth v. Teamsters (1975)) Rush v. City of Maple Heights (1958), Manego v. Orleans Board of Trade (1985)) Taylor v. Sturgell (2008) - Ginsberg'Issue Preclusion / Collateral Estoppel Classic Issue PreclusionL Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation # Parklane Hosiery Co. v. Shore Parties and Joinder" SMU v. Wynne and Jaffe (1979)) Kedra v. City of Philadelphia (1978)$ Insolia v. Philip Morris (1999)( Pulitzer-Polster v. Pulitzer (1986)! VEPCO v. Westinghouse (1973) Impleader* Clark v. Associates Commercial (1993)3 Klotz v. Superior Electric Products [v. Butz] Interpleader! State Farm v. Tashire (1967) InterventionU National Resource Defense Council (NRDC) v. US Nuclear Regulatory Commission (NRClass Actions Basics Hansberry v. Lee (1940) 3 Mullane v. Central Hanover Bank & Trust (1950) Holland v. Steele Castano v. American Tobacco0 In the Matter of Rhone-Poulenc Rorer, Inc.  Amchem v. Windsor  Ortiz v. Fibreboard Martin v. Wilks Discovery  Hickman v. Taylor- Kozlowski v. Sears, Roebuck & Co. (1976) Davis v. Ross (1985), Coca-Cola Bottling v. Coca Cola (1985)  McPeek v. Ashcroft (2001)) In re Convergent Technologies (1985) Zubulake v. UBSSummary Judgment Adickes v. Kress Celotex Matsushita v. Zenith  Anderson v. Liberty Lobby  Markman and TwomblyPersonal Jurisdiction  Pennoyer v. Neff (1878) Hess v. Pawloski% International Shoe v. Washington! McGee v. International Life % World-Wide Volkswagen v. Woodson Calder v. Jones Harry Reams, Deep Throat' Pavlovich v. Superior Court (2002)= Asahi Metal Industry v. Superior Court (1987) OConnor. Burnham v. Superior Court (1990) - ScaliaGeneral Personal Jurisdiction7 Helicopteros Nacionales de Colombia v. Hall (1984)Subject Matter Jurisdiction Mas v. Perry Mottley - Merrell Dow Pharmaceuticals v. Thompson  Grable v. DarueSupplemental Jurisdiction> Supplemental Jurisdiction Statute, 28 USCS 1367 (2002)! United Mine Workers v. Gibbs Owen v. KrogerThe Erie Doctrine  Swift v. Tyson4 Black & White Taxicab v. Brown & Yellow Taxicab Erie v. Tompkins Guaranty Trust v. York. Cohen v. Beneficial Industrial Loan Corp.0 Ragan v. Merchants Transfer & Warehouse Co.# Woods v. Interstate Realty Co. Hanna v. Plumer- Gasperini v. Center for Humanities, Inc. 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