1.

P Files Complaint
a. FRCP 3. A civil action is commenced by filing a complaint with the court
b. FRCP 8. General Rules of Pleading
(a) Claims for Relief must contain
(1) statement of the grounds for the courts jurisdiction
(2) statement showing that the pleader is entitled to relief and
(3) a demand for the relief sought
o Twombly plausibility standard (change from Conleys notice pleading standard)
Entitlement to relief requires that plaintiffs include enough facts in their complaint to make it
plausible not merely possible or conceivable that they will be able to prove facts to
support their claims
Class action suit against telecomm. companies for violating Sherman Act and conspiring.
Inferred conspiracy through parallel business conduct (no factual context) not good enough
b. FRCP 15(a) Amending Complaint Before Trial
(1)(A) can amend within 21 days after serving or (B) 21 days after responsive pleading service
(2) If not satisfied by 1, then need opposing partys written consent or courts leave
c. FRCP 15(c) Relation Back of Amendments
(1) Amendment relates back to original pleading date if (B) the amendment asserts claim/defense that
arose out of the conduct/transaction/occurrence in original or (C) the amendment changes the party,
15d1B is satisfied, and within 120 days of serving complaint the party (received notice of action and
will not be prejudiced and (ii) knew or should have known that action would been brought, but for a
mistake concerning the proper partys identity
1. Statute of limitations (causes of action must be brought in within a certain number of years from
when the action occurred)
o Krupski standard that mistake concerning identity depends on what the added party knew or
should have known, not on amending partys knowledge of that partys role or its timeliness in
seeking to amend; does not apply only if P made fully informed decision (knowing Ds role and
existence) to not include party
Lawsuit for injury while on cruise ship. P moves to amend complaint to add a defendant by
relating back. Mistake concerning the proper partys identity not a problem because P simply
misunderstood the role of the first defendant (existence v. role)
d. FRCP 41 Dismissal of Actions
(a)(1) Voluntary Dismissal by Plaintiff. P may dismiss an action without a court order by filing a
notice of dismissal before D serves answer or motion for summary judgment or a stipulation of
dismissal signed by all parties who have appeared. (without prejudice- can bring claim again)
(b) Involuntary Dismissal. D may move to dismiss if P fails to comply with court order. (res judicata)
(d) Costs of a Previously Dismissed Action. P refiling may need to pay costs of previous action
2. D Files Answer -or- Motion to Dismiss (if Motion to Dismiss fails, Answer must be filed)
a. FRCP 12(b) Motion to Dismiss: need to include all plausible disfavored defenses
(1) lack of subject-matter jurisdiction; (federal/diversity)
can be made at any time, even after trial and judgment
(2) lack of personal jurisdiction; (general; specific- long arm statute, minimum contacts)
disfavored defense (must be stated in Answer and include all others)
(3) improper venue;
disfavored defense
(4) insufficient process;
disfavored defense
(5) insufficient service of process;
disfavored defense
(6) failure to state a claim upon which relief can be granted; (Twombly; plausibility standard) and
motion on basis of complaint alone

Civil Procedure 1

(7) failure to join a party under Rule 19; (necessary and indispensable)
can be made at any time before end of trial
b. Answer process:
1. Respond to each statement in complaint- e.g. P should lose because P is wrong
2. 12(b) Defenses- need to include all plausible disfavored defenses
3. Affirmative defenses- confession and avoidance; even if everything he says is true I still win
4. 13 Counterclaims and Cross-claims- additional claim D may have against P
3. Discovery
. FRCP 26 Duty to Disclose
1. relevant to the claim/defense of any party (very expansive)
2. not unreasonably cumulative or burdensome (duplicative protections), and
3. not privileged (attorney/client privilege)
o Hickman v. Taylor work product privilege, no sufficient reason to reveal
Tug boat accident. Wants attorneys notes of witness statements. Denied- privileged matter;
readily able to get the information from the witnesses, witness identity well known and
available, not dead/missing
a. FRCP 26(c) Protective Order- during discovery can get protective order to prevent annoyance,
embarrassment, oppression, or undue burden or expense
b. FRCP 37 Compel Discovery (a) Motion to Compel, (b) Sanctions- court order to compel (upon proof
that party has tried to confer with other party)
4. Motion for Summary Judgment (can file after first issue is completed if multi-issue)
a. FRCP 56 Summary Judgment [motion on basis of pleadings, affidavits, discovery]
(a) no genuine dispute as to any material fact, judgment as matter of law
1. Material fact = relevant to the particular issue
2. Usually D claiming evidence is insufficient since P has production burden (enough facts to
potentially persuade a juror) and persuasion burden (persuade trier-of-fact that by a
preponderance of the evidence each element is true)
If P wants to win at summary judgment, need to show that each element is satisfied
If D wants to win at summary judgment, just need to show that one element is lacking; easier task
b. Trilogy of cases- expanded availability of Summary Judgment (judges are more proactive); could a
reasonable jury find for the nonmoving party
o Celotex- no need to provide affirmative evidence; shift burden to non-moving party
Lawsuit for asbestos exposure. Summary judgment given because no evidence provided by P
shows that Ds particular asbestos caused death. Showed absence of evidence.
o Liberty Lobby- judge predict and weigh evidence and ask could a fair-minded jury return a
verdict for P on the evidence presented; scintella of evidence standard gone
Suit for libel against public figures. Summary judgment given. Standard for trial in this case is
clear-and-convincing so based on evidence, no.
Dissent: essentially weighing evidence, difficult to apply, parties will come forward with all
evidence, will erode jurys role; changes the role of summary judgment from raising a
question of law to raising a question of fact
5. Trial
a. FRCP 50 Motion for Directed Verdict (after P finishes case, D can submit; can resubmit after D
finishes case) (not often given because there is a high chance of being a waste of time, if judge is
wrong and appellate court doesnt like, need retrial)
o Galloway- directed verdicts with same standards as summary judgments
DV given because P army enlister only demonstrated speculative inference that mental
disability began in 1919 and continued to 1930 (1 instance of disturbing fighting front, 1
instance of yelling the Germans were coming). Vague testimony of witness, 8 year gap.

Dissent: DV show preference for determination of fact by judges instead of by juries; majority
comes very close in this case to weighing the credibility of a witness, something decided by
jury; expert medical testimony offered evidence for that 8 year gap

6. After Trial
a. FRCP 50 Renewed Motion for Directed Verdict After Trial [JNOV] (need to have submitted for
50(a) to have JNOV available after verdict)
(b) No later than 28 days after jury verdict, court can
(1) allow judgment on the verdict, if the jury returned a verdict;
(2) order a new trial; or
(3) direct the entry of judgment as a matter of law.
b. FRCP 59(a) Motion for New Trial- judges own initiative; mistakes in evidence admittance, charge to
jury, reversible error, jury misunderstood duty, jury too biased, verdict unjust (against the weight of
the evidence)
c. FRCP 60- Relief from Judgment or Order
(a) Corrections Based on Clerical Mistakes; Oversights and Omissions.
d. Permanent Injunction (equitable relief)
1. Reserved for cases where money damages wont work; can shift costs to private negotiations (less
time in court); not given in cases where injunction loss is too disproportionate to actual loss
(negotiations will be difficult) or will require costly court oversight
o Walgreen v. Sara Creek Property- permanent injunction given to inspire negotiation
D intends to breach contract to allow pharmacy in mall. Negative injunction given because
simple and low cost. No risk of huge negotiations after.
e. Punitive Damages
Purpose: punishment, deterrence, public disapproval
Problems: increasing frequency, amounts, and unpredictability; concern of judge corruption and
jury irrationality
1. Guideposts on how high punitive damages should be:
1) How reprehensible is Ds conduct (can incorporate scope of harm but cannot explicitly tell
jury to calculate)
2) Ratio of the award to the actual/potential harm
3) Comparison of award to penalties that could be imposed for comparable misconduct
o BMW v. Gore- repainting; lowered because reprehensibility (only monetary loss, no harm to life)
o State Farm v. Campbell- fraud; lowered because cannot look at nationwide conduct, can only be
in relation to the specific claim since not a class action
o Philip Morris USA v. Williams- deceit; lowered because included nonplaintiffs harm in damages

Civil Procedure 3

Constitutional Requirements for a Valid and Enforceable Judgment:

1) Notice
Due Process- The Right to be Heard
Mathews Framework (Due Process Test) Measure/Balance:
Private interest (Goldberg- livelihood of welfare recipients)
Two prongs
1. The risk of erroneous deprivation of such interest (Jones- notice wont reach P)
2. The probable value of additional procedures (Goldberg- credibility of having hearing)
Gov interest in avoiding burdensome/expensive procedures (Hamdi- executive burden)
o

Goldberg v. Kelly [high water mark- the most the Court has imposed]
For welfare recipients, must have pre-termination hearing
Written statement is not good enough because need chance for in-person hearing for this particular
group of people (lack the education); welfare citizens would suffer irreparable damages from
waiting until after the benefits were taken away to have a hearing, and without benefits they would
be scrambling for necessities of life that they would not be able to prepare and present a proper
argument in court; need meaningful opportunity to be heard
Mathews v. Eldridge [shows a pull back from Goldberg]
For disability recipients, do not need pre-termination hearing
Disabled citizens are not the same as welfare citizens (welfare given to persons on margin of
subsistence, disability is measured from easily documented and focused medical assessments;
disabled have a lower degree of potential deprivation); already have effective processes in place to
present their case
Hamdi v. Rumsfeld
Detainment as enemy combatant must allow fair opportunity to contest
Citizens should be given: notice of facts (credible evidence), opportunity to rebut before a neutral
decisionmaker, tailored to lessen the burden on the executive- hearsay accepted, burden-shifting to
the citizen
Jones v. Flowers
When the State is aware that its notice of a tax sale has failed prior to the taking, under the due
process clause it is constitutionally obliged to take additional reasonable steps
Due process- gov must provide notice reasonably calculated to apprise interested parties of the
pendency of the action and afford them an opportunity to present their objections (e.g. regular
mail, notice on door, mail to occupant, personal service); gov was aware and had knowledge of
the unclaimed so triggers an obligation to take extra steps

Constitutional Requirements for a Valid and Enforceable Judgment:

2) Personal Jurisdiction
1. Personal Jurisdiction [Ds contacts/connections with the Forum and Ds connections with Ps claim]
a. Is there General Jurisdiction? If any then yes, if no go to b.
If person, citizenship/domicile
If corporation, headquartered or incorporated
Has D been tagged (Burnham- served with process while in state)
Did D consent to jurisdiction- shows up and does not fight
Did D have continuous and systematic contact with forum (Perkins- foreign business at home in
Ohio due to WWII; tremendous level of contact)
o Goodyear v. Brown [stream-of-commerce cannot apply to general jurisdiction]
Bus accident in France from defective tire manufactured in foreign subsidiary (in Turkey)
of Goodyear. Ds placed their tires into stream of interstate commerce without any
limitation on the extent on where tires could be sold. P sues in NC. Inadequate basis for
general jurisdiction; no continuous/systematic affiliation.
b. Is there Specific Jurisdiction? Need yes to both
i. Does the State Long-Arm statute allow for personal jurisdiction?
1. FRCP 4(k)(1)(A) Federal Courts constrained by local states long-arm statute
FRCP 4(k)(2) Foreign non-resident jurisdiction if 1) Ps claim arises under federal law, 2)
D beyond the jurisdictional reach of any state court, and 3) jurisdiction does not violate Ds
Constitutional rights (sufficient aggregate contacts)
ii. Does the Constitution allow (due process)? TEST- International Shoe
Mantra: Minimum Contacts such that maintenance of the suit does not offend "traditional
notions of fair play and substantial justice"
a. Minimum contact: Purposeful availment to privilege of conducting activities in the State
i. reaching out (Calder- targeting CA with libel article)
ii. benefiting (International Shoe- selling shoes in forum; Burger King- franchise)
iii. passive/active (ALS Scan- passive ISP provider)
o Zippo model: sliding scale between knowing and repeated transmissions of web
info and passive simple posting of web info
1. Directs electronic activity into the State
2. Intent of engaging in business or other interactions within the State
3. Activity creates in a person a potential cause of action cognizable in the States
courts
iv. stream of commerce- movement of goods from manufacturers through distributors to
consumers
o stream of commerce is not a rule, only guideline (Nicastro- foreign corp. did not
purposefully avail itself)
b. Minimum contact: Claim arises out of the activities directed at the State
c. Fair play: Reasonable to sue defendant
i. Ds conduct must allow him to reasonably anticipate being haled into court; degree of
predictability
ii. Ds burden, States adjudicating interest, Ps convenience interest, interstate judicial
systems efficiency interest, States social policies interest
2. 1391 Venue- locales with connection to parties or events (statute overlay on top of personal jurisdiction)
a. If all Ds are in same state, then can sue in district where any D resides
b. Location of accident, events that give rise to claim
c. If cannot satisfy either of the above, then whereever a D is subject to personal jurisdiction

Civil Procedure 5

i. If action where jurisdiction is not founded solely on diversity of citizenship, then it is any
district which any D may be found
d. An alien may be sued in any district
3. Forum Non Conveniens (common law doctrine overlay on top of personal jurisdiction)
What burden does this forum have on each party? What burden if forum was changed?
Weigh public and private interest factors
Proper to distinguish between citizen and foreign plaintiffs- when the home forum has been chosen,
it is reasonable to assume this choice is convenient and will have local interest
1404. Change of Venue- Transfer; codifies common law; court discretion
(a) For convenience of parties and witnesses
(b) Upon motion, consent or stipulation of all parties
Piper Aircraft v. Reyno [the possibility of a change in substantive law should not be given
substantial weight in a forum non conveniens inquiry]
Choice of law should only be considered when the remedy in the alternative forum is totally
inadequate or when the alternative forum lacks subject matter jurisdiction.
Crash in Scotland. P Scottish citizens. D plane manufacture in PA. Ps (foreign plaintiff)
choice of forum in US because forum more favorable. In Scotland P will only be able to sue
for loss of support and society and cannot sue for strict liability in tort. Ds move to
dismiss on ground of forum non conveniens. Private factors favored Scotland because the
wreckage of the plane and witnesses were there. Public factors also favored Scotland
because Scotland had a greater interesting in hearing a case that concerned Scottish citizens.
The court also held that the fact that Scotland might have been less favorable to P did not
provide a reason to dismiss Ds motion.

Old View of Specific Jurisdiction

In personam- power of a court to enter money judgment against D; full faith and credit (valid
judgment applies to all other states)
In rem- power of court to act regarding property within its borders; no obligation on Ds part to pay
P money; direct object is to reach and dispose of property owned by D
Quasi in rem- presence of Ds property within the forum state and can enter money judgment not
exceeding the value of the property
Pennoyer v. Neff
o Attorney wants fees, judgment entered for attorney, Ps property taken to pay for fees.
o Not lawful: Timing Issue; the lower court didn't take the property and seize it at the start of the
case (lack of attachment)
Hess v. Pawloski [stretches when consent is given; extends Pennoyer]
o Implicit consent: by operating a motor vehicle in forum state, you deem the registrar to be a
proper service of process
o Motor vehicles are dangerous and non-residents are likely to be using the roads; it is easier for a
non-resident to come into forum state, injure someone, and leave
o P gets benefits of using Mass highway, benefit of the police/fire, benefit of possibility that he
could sue anyone he gets into an accident with, so he should also be available to be sued (with
benefits comes obligations)

Modern View of Specific Jurisdiction

International Shoe v. Washington [establishes the minimum contacts test]

o Minimum-contacts analysis- presence- intentional, directed at State, benefits, relationship
between these contacts and the cause of action
o Jurisdiction because of solicitation by Ds agents plus additional activities in forum: 11-13
salesmen in forum state show samples, rent permanent and temporary sample rooms (State
wants company to pay contributions to the state unemployment compensation fund)

World Wide Volkswagen Corp. v. Woodson

o No jurisdiction from a single isolated car crash in state (no other connection)
Calder v. Jones [targeting the forum]
o Jurisdiction over non-resident who writes article directed at resident
o Intentional conduct in FL calculated to cause injury to respondent in CA; P was the focus of Ds
(the primary participants- original writer and the president/editor) intentional activities, story
concerned the CA activities of a CA resident; used CA sources in story and P suffered
emotional distress and injury to reputation in CA
Burger King Corp. v. Rudzewicz
o Jurisdiction over non-resident who made business franchise with resident; resident wants
payment
o Purposefully directed his activities at forum, litigation arising out of activities; got benefits,
deliberate choice, long-term contract, continuous direct communications
ALS Scan, Inc. v. Digital Service Consultants, Inc. [passivity]
o No jurisdiction over ISP provider
o ISP (D) has no contacts with the forum state, did not purposefully avail itself to state, the claim
(illegal photos by ISP buyer) does not arise out of any contacts ISP has with forum
The only direct contact Digital had with Maryland was through the general publication of
its website, which is unrelated to the claim in this case (did not have any infringing photos)
o Zippo model adoption: sliding scale between knowing and repeated transmissions of web
info and passive simple posting of web info
1. Directs electronic activity into the State
2. Intent of engaging in business or other interactions within the State
3. Activity creates in a person a potential cause of action cognizable in the States courts
J. McIntyre Machinery v. Nicastro **shaky ruling of only 4**
o Asahis stream-of-commerce doctrine is a mere observation that D may be subject to
jurisdiction; still need purposeful availment, targeting the forum; a single sale of a product in
a state is not adequate for asserting jurisdiction; no regular flow, regular course of sales; no
something more such as state-related design, ads, etc.
NJ suit of foreign corporation. Nicastro injured hand in NJ using a metal-shearing machine
manufactured by McIntyre Michinery (in England). Lower court claimed McIntyre
distributed products nationwide, stream-of-commerce into any of the 50 states. Supreme
Court reasoned no purposeful availment: D did not engage in conduct purposefully directed
at NJ, no office, no taxes, no property, no advertisements, no employees sent, no single
contact; no minimum contacts or presence
1. An independent company agreed to sell/distribute McIntyres machines in US; McIntyre
permitted distributor to sell to anyone in America who is willing to buy them
2. Officials attended annual conventions / trade shows for scrap recycling in various states
(never NJ) to advertise their machines alongside the distributor
3. No more than 4 machines ended up in NJ; record shows that only one machine was shipped
to the NJ customer
o Concurrence (Alito and Breyer):
Purposeful availment is too broad/absolute and needlessly protects corporate Ds.
Allows manufacturers to escape liability if they use multiple chains/distributors to sell
products.
What about other settings? (e.g. Amazon.com global market, Appalachian potter)
Shaffer v. Heitner [abandonment of Quasi in Rem]
o Property/connections must relate back to the cause of action.
o P filed motion to order sequestration of Delaware property to compel personal appearance of
nonresident. Sequestrator seized shares of stock and options. P attempted quasi in rem
jurisdiction. Denied- stock was unrelated to the cause of action. The presence of property in a
State does not automatically confer jurisdiction over the owners interest in that property.

Civil Procedure 7

Burnham v. Superior Court [physical presence in state counts for specific jurisdiction]
o Reaffirms in personam jurisdiction laid out in Pennoyer. Service of process counts as both
establishing adjudicatory power and providing notice of the litigation.
o D filed divorce in NJ on grounds of desertion. P demands it be an irreconcilable differences
divorce and brings suit in CA. While D visits his children in SF, P serves D with CA court
summons.
Comments:
o Serving in an airplane when over the proper State counts
o Solely serving corp agent does not count (for corps, must apply min contacts rule)
o If D is tricked/induced or there to testify in another matter, serving him does not count
(immunity)

Constitutional Requirements for a Valid and Enforceable Judgment:

3) Subject Matter Jurisdiction

Federal Subject Matter Jurisdiction (Constitution, Art III, 2)- the power of a court to hear a type of case; either
fed question or diversity must be fulfilled at the time of complaint
1331 Federal Question jurisdiction: fed court shall have jurisdiction over all civil actions arising under
the Constitution, laws, or treaties of the United States
The well-pleaded complaint rule: the claim itself must arise from federal law; cannot go into
matters of defense or counter-claims to show Federal question would arise (Mottley- cause of action
was not based on fed question; was only an anticipated defense, a counter to Ds claim)
Two interpretations of whether federal law is embedded:
o Merrell Dow- drug Bendectin caused birth deformities, negligence and violation of FDA
regulations. Negligence is a state law claim, but turns entirely on federal law. Conclusion- cause
of action was state law claim so state court. Not good enough to get into federal court
o Grable & Sons- property taken by IRS for not paying taxes, quiet title claim for IRS lack of
proper service of notice for property taking; Conclusion- cause of action was federal issue (IRS
seizure of property); state law claim turns on federal issue entirely, so should be in federal court
1332 Federal Diversity jurisdiction: 1) need complete diversity (Ps cannot be of the same state of any Ds)
and 2) need $75,000 amount in controversy (plausible request for relief at time of complaint)
Complete diversity requirement. No defendant is a citizen of the same state as any plaintiff.
Purpose: to prevent bias of state forum, favoring of court toward its residents; therefore, it is
required for all parties.
Contamination theory- any time you have a party who destroys complete diversity, the case
has become contaminated and no longer has a risk of bias; court cannot hear that case
Domicile is made from the time the complaint is filed (Ochoa- D driver in car accident was
technically an LA resident at the time of filing and therefore defeated complete diversity
because P was an LA resident; Ds drivers license, no permanent employment in Texas,
lived in LA all his life, forced to leave because hurricane destroyed home, family in LA,
was visiting family in New Orleans when accident occurred)
Factors for domicile: facts in pleadings, evidence, affidavits, testimony whether there is
permanent intention to stay
Amount in controversy requirement. The reasonable matter in controversy exceeds $75,000.
Purpose: to ensure that a dispute is sufficiently important for federal court attention
Only need 1 P to satisfy; a claim that falls short of the minimum amount does not reduce the
importance of the claims that do meet this requirement
Exxon Mobil v. Allapattah- parents claims did not meet the min amt in controversy when
joined daughters Starkist suit for sliced finger on tuna can
1332(a)- For the purposes of this section and 1441, an alien admitted to the United States for
permanent residence shall be deemed a citizen of the State in which such alien is domiciled
Is alien citizenship deemed exclusive to that state or dual between state and alien country?
o Singh v. Daimler-Benz
3rd Circuit Holding: exclusive citizenship to state domiciled; Legislative Intent: limit the
power of aliens and reduce federal diversity cases; unfair it was that permanent resident
alien v. citizen = federal jurisdiction, but citizen v. citizen =/= federal jurisdiction
Problem with holding: this allows a suit solely between aliens to be heard in federal court
o DC Circuit reads 1332(a) as dual citizenship; prevents alien only suits
Erie Analysis
1441 Removal
(a) If federal court has original jurisdiction, D can remove a case from state court to federal court.

Civil Procedure 9

(b) This right to remove is without regard to the citizenship or residence of the parties.
(c) If a 1331 federal issue claim is joined with a non-removable claim, the entire case may be removed
and the district court has discretion on the issues it hears.
o Burnett v. Birmingham Board
The complaint filed in state court included three state-law claims and one federal law claim.
D removed to federal court. P motion to remand.
Case remanded under 1441(c) because state law claims were dominant and there was no
nucleus of operative fact common to the state and federal claims.
Purpose: P had initial choice of federal or state, this gives D an opportunity to choose if he feels bias.
Purpose of 1441(c): concern for forum shopping; wants to allow federal court to avoid ruling on a case
that is essentially state-based
Exception to removal: D cannot remove to federal court if P chooses Ds home state court because bias
(rational for diversity jurisdiction) is gone
Exception to removal: Cases cannot be removed from federal to state court (one-way street)

10

Multi-Party Litigation
FRCP 14 Third Party Impleader- Like a new case: D is now P, 3rd party is now D
(a) D can bring in 3rd party. (b) P can bring in 3rd party.
(1) D must file 3rd party summons/complaint within 14 days after serving its original answer.
(2) 3pD's Claims and Defenses.
(A) 3pD must assert defenses (FRCP 12), (B) counterclaims/crossclaim against D (FRCP 13)
(C) 3pD may assert defenses against P, (D) claim against P arising out of transaction/occurrence
that is the subject matter of PvD claim
(3) P may assert against 3pD any claim arising out of the transaction or occurrence that is the subject
matter of the plaintiff's claim against the third-party plaintiff.
(4) Any party can move to Strike, Sever, or Try Separately the third-party claim
(5) 3pD can bring in new nonparties and continue the chain
Purpose: promote judicial efficiency, eliminate separate actions; benefits of settling matters in one suit
must outweigh the potential prejudice to P and 3pDs
1) Bring in party who is not already a part of the suit
2) D says: If I am liable to P, then new D (3pD) is liable to me, either for all or part of the claim
3) Ds 3rd party claim must arise from the same determinative facts of Ps claim
Hanover- 3pD employee negligent in handling jewels, 3pD owner negligent in hiring employee;
both contributed to theft; D insurance company impleads them for suit of stolen diamonds
rd
4) 3 partys actual liability can be unclear (reason: done before discovery, cannot know)
FRCP 19 Necessary & Indispensable Parties (must pass FRCP19(a) to inquire FRCP19(b))
Purpose: Ds prefer FRCP 19 over 14 because suit can be dismissed under 19
(a) Necessary
(A) without party, court cannot accord complete relief (Daynard- P was able to get full relief because
asking for full amount from each D so not having one D was not crucial)(Hypo- a crucial party would
be someone who has a physical item that P is specifically requesting the return of); or
(B) failing to join would:
(i) prejudice the absentee (impair absentees ability to protect interest) (Daynard- persuasive
precedent is not an overriding factor to show prejudice)(Hypo- subtenant is necessary party of
landlord and tenant dispute over rented space because subtenant lives there; impairs his legally
protectable interest if landlord takes property) or
(ii) prejudice D (substantial risk of incurring double obligations because of interest)
(b) Indispensable (a subset of necessary)
If a necessary person cannot be joined, court must determine whether action should proceed or be
dismissed. Factors:
(1) prejudice on absentee or the parties if judgment is made;
(2) extent prejudice could be lessened by: (A) protective provisions in the judgment; (B) shaping the
relief; or (C) other measures;
(3) adequacy of judgment; and
(4) adequacy of remedy if action were dismissed for nonjoinder. (is there an alternate forum, state ct)
Other factors from Daynard
The outsiders interest
The Ds interest in avoiding multiple litigation or sole responsibility for a shared liability
Court/publics interest in complete, consistent, efficient settlement
Ps interest in having a forum
FRCP 20 Permissive Party Joinder- [to join a party, need 1) to make sure FRCP allows, and 2) to make
sure you have federal subject matter jurisdiction] [done at pre-discovery post-motion-to-dismiss stage]
(a) Persons Who May Join or Be Joined. (1) Ps and (2) Ds may join if:

Civil Procedure 11

(A) they assert/have asserted against them any right to relief arising out of the same transaction,
occurrence, or series of transactions or occurrences; and
o Same transaction/occurrence = whether there is sufficient overlap of facts/evidence and
whether the claims are logically related to each other (what evidence/witnesses would not have
to be called for twice)
(B) any question of law or fact common to all Ps/Ds will arise in the action.
o Question of law or fact is the easier question once you satisfy (A)
Mosley v. General Motors
o Ps sued for unlawful employment practices in violation of Civil Rights Act (discrimination
against Negroes and women)
o The suit with multiple claims of discrimination was valid under FRCP 20 because there was a
common question of fact (discriminatory policy threatens entire class) arising from same series
of occurrences (all Ps injured by a general company-wide policy of discrimination)
(b) Protective Measures. The court has the option to separate parties/trials to protect the non-joining P/D
against delay, expense, prejudice
Purpose: promote trial convenience, expedite rulings, read very broadly, strongly encourage joinders
FRCP 24 Intervention- a third party (often public interest, ideological group) enters a lawsuit (P side, D
side, or independent position adverse to both P and D) because has a personal stake in the outcome
(a)(2) Right to Intervene requires:
1) timely application, (threshold question, case-by-case) (Save the Dunes- timely even though it
occurred 4 yrs after initial suit because it was within 1 yr after learning action could impose interest)
2) interest relating to the property or transaction which is the subject of the action, (interest must be
significant, direct, based on a right which belongs to the proposed intervenor rather than to an
existing party) (Save the Dunes- environmental interest in land =/= legal interest in private property;
only property owners can be in this case)
3) the disposition of the action may impair/impede his ability to protect that interest,
4) interest is not adequately represented by existing parties
Note: Court also checks whether intervention would bring undue delay and prejudice to original parties
(b) Permissive Intervention. Attempt if cannot satisfy 24(a); under court discretion to let party in

12

Multi-Claim Litigation
FRCP 18(a) Claim Joinder- P can include as many claims against a D as she wants, even if totally unrelated
Purpose: efficiency, reduce court costs; keep in mind res judicata- need to bring all potential causes of
actions that arise from the same transaction at same time
FRCP 42- Consolidation and Separate Trials- Courts discretion and choice
(a) Consolidation. Court option to see overlapping issues and join
(b) Separate Trials. Court option to separate claims; counters FRCP 18
Purpose: convenience, avoid prejudice, economy

Supplemental Subject Matter Jurisdiction- Stretching jurisdiction to include closely connected

claims with claims already in court
Purpose: efficiency, overlap of evidence/witnesses/events
Common Law
United Mine Workers v. Gibbs- state law claim of unlawful conspiracy interfering with employment
contract was allowed in federal court because P also had federal claim for violations of federal Act
which interfered with his contract
o Court has discretion to hear a state claim along with a federal claim if:
Court has subject matter jurisdiction (federal or diversity) on the federal claim
State and federal claims derive from common nucleus of operative fact, arising from
the same transaction or occurrence, or series of transaction/occurrence
The claims ordinarily are expected to be tried in one proceeding
If federal claims are dismissed before trial, state claims must be dismissed
If state issues predominate, state claims may be dismissed and left for state court
If likelihood of jury confusion, then can separate claims (FRCP 42(b))
Owen v. Kroger- is this about bringing in a state law claim? About 1332 issues? About impleading a
3pD?
28 U.S.C. 1367
(a) If court has original jurisdiction, then has supplemental jurisdiction over all other related
claims deemed part of the same case or controversy under Article III.
o aspects of common nucleus of operative fact
o for diversity problems, check for contamination theory to see if destroys the original Ps
original jurisdiction; so there must be complete diversity
(b) If diversity jurisdiction, no supplemental jurisdiction over cases that fail 1332 requirements:
if Ds were added under FRCP 14 (3pD), 19 (required joinder), 20 (permissive joinder), or 24
(intervention), or
if Ps were added under FRCP 19 (required joinder) or 24 (intervention)
(c) Court discretion if:
(1) complex issue of State law,
(2) claim substantially predominates over original claim,
(3) court has dismissed all claims over which it has original jurisdiction, or
(4) exceptional circumstances, compelling reasons

Civil Procedure 13

Finality and Preclusion

Purpose: P already had full and fair opportunity to litigate; prevents harassment, vexatious litigation,
inconsistent results, jury searching; brings finality, efficiency, repose, legitimacy; promotes full preparation
from parties the first time
Cons/Fears: unfair to bind, lack of accuracy, overlitigating the first case; due process concerns if claiming
privity or offensive issue preclusion (must have opportunity to be heard)

Claim Preclusion- res judiciata- prevents a second litigation arising out of the same incident or transaction
against the same party in one lawsuit from proceeding at all; can keep out issues that have not actually be
litigated (summary judgment)
3 Elements:
1) Prior suit had Final Judgment on the merits (easy prong)
2) Present suit arises out of the Same Claim as the prior suit
Same transaction test (primary)- analysis of whether the cause of action arises out of a common
nucleus of operative fact (underlying injury, time, space, origin, motivation, convenience,
overlap of facts/witnesses; if substantial overlap, 2nd action precluded)
nd
o Car Carriers- Ps changed legal theory for 2 suit but does not matter under same
transaction test (multiple legal theories does not create multiple transactions)
st
Ps were car carriers for D Ford. 1 suit P claimed D conspired with other Ds in
violation of Sherman Act. Dismissed because P failed to suffer the type of harm antitrust laws were designed to protect against. 2nd suit P claimed RICO violations. Barred
because claims arose out of single core of operative facts.
Right-duty test- analysis of rights, duties, and injuries to see if they are materially different (Car
Carriers- court rejects this test; test is only used if compelling circumstances and clear showing
that substitution would not undermine the purpose of res judicata)
3) Same Parties or in Privity (close relationships, insurance companies, indemnitors, fiduciary
relationship, familiar relationship)
o Gonzalez- privity factors =
1) substantial control- involved in early stages, ability to call the shots, overlapping
use of discovery materials, same attorney representing
2) virtual representation- 2nd Ps had actual or constructive notice of earlier litigation,
1st Ps are legally responsible or accountable to 2nd Ps, 2nd Ps consent to be bound by
verdict of 1st suit
Note: court also measures fairness (P could not join) and due process concerns (P must
have day in court)
1st suit. Rodriguez Ps were sold land by D unsuitable for development. Attempted to convert
to class action but denied and did not allow additional Ps to intervene. 2nd suit. Gonzalez Ps
filed similar suit against same D and added claims that had been neglected by 1st Ps. 1st suit
lost but 2nd suit okay because not same parties or in privity.
Issue Preclusion- collateral estoppel- an identical issue already resolved between the same parties cannot
be relitigated (partial summary judgment- 1 piece of the case should be settled; P still has left to prove others)
4 Elements:
1) Issue had been Actually Litigated
o Jarosz- do not need evidentiary hearing/discovery; just need adversarial back-and-forth and
parties did not just consent or stipulate; brief, hearing, judgment on the merits
2) Issue was the subject of a valid and final Judgment
3) Issue was Essential to the judges decision (goes to fairness and accuracy)
o Jarosz- attorney-client relationship decision in 1st case was a collateral issue to the real suit
(claim of conflict of interest to represent defendants failed but suit still moved forward)
4) Person cannot be precluded if they were not a party in the first case (due process)

14

Defensive- D benefits; I have a strong defense because this has been prior litigated; Courts are
amenable to this even if parties are not the same (even if new D) because it meshes with the purpose of
preclusion
Example: Same P in multiple suits regarding a patent of a TV antenna. P v. D1- Court finds no
patent, D wins; P v. D2- D2 tells P they are precluded because of 1st case. P now has incentive to try
to have all Ds in one suit (efficiency)
Offensive- P benefits; I win because of this prior litigation I assert I should get the benefit; Courts
less happy with this because it does not promote judicial economy, instead might cause more litigation
since potential Ps might not intervene due to the fact they might wait and see if first Ps do all the work
o Parklane Hoisery v. Shore
1st suit- P1 won against D. 2nd suit- P2 sued D for same issue as P1 and moved for partial
summary judgment. P2 wins because no real chance for P to join 1st suit and no unfairness to
D (no new procedural opportunities, jury which was available in 2nd suit is neutral factor)
1) Did P have a chance to join 1st suit? If yes then cannot use offensive issue preclusion
2) Would this be unfair to D?
1. not foreseeable to D that ruling in 1st suit will be used again
2. potential inconsistency with previous judgments
3. differing procedural opportunities available to D (e.g. jury? Parklane judges disagree on this
being a factor, majority thinks jury is neutral)
4. difference in value of two cases (e.g. nominal v. damages) (different judgment standards?
Like OJ Simpson where he had a criminal case, then civil action, then child custody [clear
and convincing higher than preponderance])

Civil Procedure 15

Prejudgment Acts
1. FRCP 65(a) Preliminary Injunction- court directs a party to halt specific conduct or perform
specific acts immediately before the court reaches the merits of the case
o Ajilon v. Kubicki factors test (sliding scale). Prelim injunction given if:
1) Likelihood of P prevailing (judges hesitant because no discovery has been done, do not want to
make pronouncements of who is likely to win)
2) Harm to P- irreparable harm (injury both certain and great, actual not theoretical)
Economic loss alone does not constitute irreparable harm (can get money damage remedies)
unless threatened to be out of business
3) Harm to D if injunction granted
4) Public Interest
Ds left P legal staffing and recruiting services firm for one of its competitors. P preliminary
injunction to stop Ds from working together and prevent sharing of trade secrets to competitors.
Economic loss alone so no irreparable harm.
Considerable hardship to Ds- preventing them from working together would make them resign
from the company, unable to even gather for drinks, they worked together in the past and
compose a self contained unit at new workplace; preventing them from soliciting business
would interfere with the preexisting and ongoing relationships D has with firms
No public interest- essentially non-confidential information at stake (client lists); would bar Ds
from approaching potential customers
2. FRCP 65(b) Temporary Restraining Order- time-sensitive situations; no notice required if
(1)(A) worn statement of immediate irreparable harm such that there's no time to give notice and
(1)(B) certification of attempt to give notice or reasons why attorney cannot give notice
(2) expires after 14 days
(c) Both 65(a) and 65(b) require moving party to post bond
(d)(1) Contents of 65(a) and 65(b)- must state reasons and scope
3. FRCP 64 Seizing Person or Property- can cut off access to funds/wages, allows assurance that
resources will be available to collect, pressures D to settle
(a) Court can use any remedies under State Law for seizing person/property to secure satisfaction of the
potential judgment.
(b) Kinds of Remedies include arrest (seizure of person), attachment (property), garnishment (wages),
replevin (goods), sequestration
2. Fuentes v. Shevin- seizure cannot violate due process; need notice and hearing prior to taking; state
remedy must meet Constitutional standards
a. P seized gas stove and stereo based on state replevin laws. State laws violate due process- no
requirement to make a convincing showing, only need bare assertion/conclusory statement;
provides no notice or opportunity for the owner to challenge the seizure. A temporary
deprivation is still a deprivation in the terms of the 14th Amendment
b. Only time state can take property without notice is if important government or public interest
and needs very prompt action
Comments: this case could drive up costs for sellers no longer able to secure their installment
sales; the 14th Amendment is implicated only when a state has taken an action depriving a
person of life, liberty, or property (e.g. self-help remedies of repossession are not held to 14th
Amendment; no involvement from the state)

16

Administrative Tasks

Maintaining the Integrity of the Process

FRCP 11(b) Representations to the Court.
(1) proper purpose (2) sufficient basis in law (3) sufficient basis in fact (4) reasonably based on belief or a
lack of information
FRCP 11(c) Sanctions.
Purpose: punishment, compensate victims of violation, streamline court dockets, deter future abuse
(1) In General. (lack legal/factual basis)
If the court determines that Rule 11(b) (Representations to the Court in pleading/motion/etc)
has been violated (improper, frivolous, without evidentiary support, or unreasonable), the court
may sanction any attorney, law firm, or party responsible for the violation. Absent exceptional
circumstances, a law firm must be held jointly responsible for a violation committed by its
partner, associate, or employee.
(2) Motion for Sanctions.
A motion for sanctions must be made separately from any other motion and must describe the
specific conduct that allegedly violates Rule 11(b). The motion must be served under Rule 5,
but it must not be filed or be presented to the court if the challenged paper, claim, defense,
contention, or denial is withdrawn or appropriately corrected within 21 days after service or
within another time the court sets (safe harbor rule). If warranted, the court may award to the
prevailing party the reasonable expenses, including attorney's fees, incurred for the motion.
(3) On the Court's Initiative.
On its own, the court may order an attorney, law firm, or party to show cause why conduct
specifically described in the order has not violated Rule 11(b).
o Difference between Court-sanctioning and party-sanctioning is that court-sanctioning does
not require the 21 day safe harbor
(4) Nature of a Sanction.
Monetary: Fees to reimburse court/movant for all trouble/time/money to put into the filing
(attorneys fees)
Non-Monetary: send letter to all in law firm (public humiliation)
Chaplin v. Dupont Advance Fiber Systems [application of FRCP 11(c) Sanctions]
o FRCP 11 is a punishment and should not be used unless bad faith or excessive (not intended to
chill enthusiasm)
o Ps (wearers of Confederate symbol) filed complaint for employment discrimination (Title VII,
42 U.S.C.A. 2000) based on their 1) national origin, 2) religion, and 3) race. D filed Motion for
Sanctions (FRCP 11) for claims not warranted by law and allegations without current or
potential future evidentiary support. Court grants Sanctions for 11(b)(3) sufficient basis in fact
as religion and race employment discrimination have no factual foundations.

Attorneys Fees (unstated engine behind litigation; decisions turn on fee structure (how is my
opponent getting paid, how am I getting paid, what is the best decision))
FRCP 68- Offer of Judgment [encourage offers of settlement; if settlement offer is larger than the
winnings then you must pay costs]
Each party pays for his/her own attorney; The losing party does not pay the prevailing partys
attorneys fees; much lower risk to be a P in USA v. being P in England; more lawsuits are filed
Payment: Usually- hourly billing; Alternative- contingency fee (client pays % of any recovery won)
Fee-shifting exception (1-way fee shift)- prevailing party can be compensated if other party acts in
bad faith, under frivolous arguments, or under Congress Civil Rights Attorneys Fees Act (public
interest)
Settlement Offer- losing party offers all injunctive relief for prevailing party if losing party does not
pay for attorneys fees (circumvents Civil Rights Attorneys Fees Act fee-shifting statute),

Civil Procedure 17

prevailing party should take; it is ethical to serve his clients loyally and competently and the
settlement offers a more favorable outcome than what would be expected through further litigation

Jury

7th Amendment to Constitution- In Suits at common law the right of trial by jury shall be
preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United
States, than according to the rules of the common law.
6-12 jurors, unanimous (by at least a jury of 6); attorney can poll after verdict to test unanimity
Judge decides what the law is and instructs jury; jurys job is to apply the facts to the law; jury
nullification allows juries to acquit Ds who are technically guilty, but who dont deserve
punishment, when a jury disregards the evidence and acquits an otherwise guilty D
Pro-jury: general community perspective; prevents judge arbitrariness; community governing;
citizen education; juries are generally competent, just, fair, equitable; judge still present
Anti-jury: non-scientific approach to evidence; no training in law; more likely to grant punitive
awards; more irrational and biased and overly emotional; cumbersome and unreliable
Anti-judge: older white men (demographics), out of touch with community, bias, heavy reliance
on precedent/dated, less sympathetic, more suspicious than average juror, judge involved from
the beginning of the case so sees inadmissible evidence and can grow bias toward party
3 debates about the jury
Size- Jury of only 6 makes verdict more unpredictable, reduces likelihood of minority
representation, reduces ability for dissenting member to voice opinion, and reduces the
collective memory/experience of the group
Unanimity- currently civil cases require unanimity, but possible Court will change; if only
majority needed, might hurt deliberations (not as thorough with the law), participation by
minorities, satisfaction by the members
Complexity- some argue juries should not hear complex cases (overwhelmed, frustrated,
confused); some say if expertise needed would drastically limit jury pool, would make it
less democratic (not your peers); juries have opportunity to ask judge and get clarity
Voir Dire questioning and 3 peremptory challenges (removal without cause)
o 14th Amendment prevents government from removing juror based on race
o Policy: legitimating results (attorneys will feel more fairly treated), ability to strike outliers
o Batson test (burden-shifting framework) 1) require party opposing preemptory to establish on its face (prima facie) that there was
discrimination
2) ask the other party for a race-neutral explanation (burden shifts to the party making the
preemptory challenge [has more knowledge] to force disclosure of that knowledge and
justify their reasoning)
3) party opposing must show pretext
Concurring (Breyer)- burden-shifting framework does not solve the problem; can
always come up with unpersuasive reason; difficulty in unconscious racial stereotyping
(individuals will think it is race neutral but really it is stereotyping)
Missing The Common Law And Equity

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Choice of Law (in 1332 and supplemental jurisdiction cases)

Reminder: Purpose of diversity jurisdiction is to prevent bias against nonresidents; just another tribunal,
not another body of law
Old Law
Swift v. Tyson
Federal courts did not need to adhere to state common law (no statutes, regulations, just judge-made
rule), they had their own set of common law rules
Reasoning: 1) uniformity (believed in trickle-down effect, federal court will interpret and states will
adopt our reasoning), 2) judge-made law is judge-made law, federal courts should be allowed to make
law too

Erie Rule: Except in matters governed by the Constitution or Acts of Congress, federal courts must apply
state law (statutes and common law) to any case
Purpose:
1) prevent forum shopping
2) state sovereignty
3) prevent discrimination against in-state residents
4) uniformity of law within a state
Exceptions:
Is there a direct conflict with an FRCP?
Unguided Erie Choice
(judicial interpretation of FRCP counts)
Is there a conflict with federal common law practice?
a. Court tries to read FRCP narrowly to a. If yes, then is the federal practice essential to the function of
avoid conflict (Walker)
the federal court? (Byrd- judge/jury) (change role of judge)
b. If yes, then apply Hanna test
i.
If yes, federal practice will most likely govern (weighed
i.
Is the rule valid under the Rule
very heavily)
Enabling Act? Is it procedural
(does not abridge, modify,
Regardless, still need to look at:
expand substantive rights)?
1. Twin Aims of Erie (Hanna)
(Hanna)
a. Forum shopping
ii.
Is the rule valid under the
1. Counter: forum shopping is inherent in the choice
Constitution?
between federal and state courts
1. If yes to both, federal
b. Inequitable application
law governs
2. Is the federal law outcome-determinative? Substance v.
2. This has never been no;
procedure (York)
would mean Supreme
a. Substance = state law
Court and Congress were
i. Designed to regulate daily conduct, not just within
wrong
litigation world (Hanna concurrence)
ii. State law bound up with rights or obligations of
state policy? (Byrd)
b. Procedure = federal law
i. Does not change right to recovery
ii. Does not change amount can recovery
3.

Civil Procedure 19

York [outcome-determinative] (supports Eries pro-state stance)

The outcome of the litigation in federal court should be substantially the same as it would be if tried in a
State court. Courts must abide by states statute of limitations.
Purpose of statute of limitations: 1) establishes deadline for D to have peace of mind, and 2)
recognizes that after certain period of time it is unfair to force D to defend an old claim
(evidence gets stale, witness memory fade, inaccurate results)
Ps brought class action in federal court (diversity) alleging state law claims of breach of trust. D won on
summary judgment based on NYs statute of limitations. Appeals court reversed because federal court
could exercise its own judgment as to timeliness. Supreme Court upheld lower court decision.

Byrd [essential function] (pushes back; pro-federal stance)

State laws/statutes cannot alter the essential character or function of a federal court. Federal rules to
have jury decide will stay. The federal system has allocated functions between judges and juries and
having a judge decide would change that essential function.
Judge would decide in state court. Jury would decide in federal law.

Hanna [direct conflict with FRCP] (pushes back; pro-federal stance)

Method of service of summons and complaint is not substantial, would have only altered the way in
which process was served; measure by purpose, timing, incorporation of discretion
REA 2072: Supreme Court has power to prescribe rules and forms of practice and procedure of federal
courts in civil actions such rules should not abridge, enlarge, or modify any substantive right
P sued D for personal injuries resulting from car accident. P service of summons and complaint was
made by leaving copies with Ds wife. This matches FRCP 4(d)(1) but violates MA state law 1979.
Concurrence: Additional purpose of Erie: 3) prevent uncertainty (there should not be two conflicting
systems of law controlling the primary activity of citizens)
Does the rule substantially affect those primary decisions respecting human conduct (daily life)
which our constitutional system leaves to state regulation or is it just a parcel of litigation

Walker [coexistence]
Hanna does not apply because FRCP 3 does not directly clash with state law; FRCP has no statement on
state statute of limitations; FRCP 3 and state law can exist together
P carpenter suing D manufacturer for negligence (eye injuries). Service of process was not made until
+60 days. D filed motion to dismiss based on OKs statute of limitations 1297 (state law deems action
commenced when service of summons). P claims he is timely under FRCP 3 (action commences by
filing a complaint with the court).

Gasperini [common law practice branch]

P sued D for color transparencies he provided to them for videotape. Jury awarded $450k; excessive?
Federal appellate court vacated jury verdict and ordered new trial, using NY state law.
NY state trial/appellate law: deviates materially from reasonable compensation
Federal district trial court: shocks the conscience (JNOV or FRCP 59 new trial instances)
Federal appellate court: abuse of discretion (reviews trial court decision)
Two Erie Problems
1) Role of appellate judge differs between state and federal court (state appellate judge uses deviates
materially standard, but federal appellate judge uses?)
Court: federal courts are not required to apply state law (essential function of court, no forum
shopping problem at appellate court, not outcome-determinative)
District trial court to use deviates materially standard and appellate court looks at deviates
materially under the abuse of discretion review
2) Standard of review of damages differs in state and federal court
Court: state law applies due to policy concern (forum shopping, inequitable application, substantive
in changing role of jury)

20

Class Actions
Pros: efficiency for P and D, equality/consistency in results, levels the playing field (David and Goliath),
deterrence, push D to change, can cover undiscovered Ps, can rally support/publicity for a good cause
Cons: enormous time/expense/commitment, decreased accuracy (eliminates multiple decision-makers),
force unjust settlement (blackmail settlement pressure), encourages frivolous litigation, windfall to lawyers
FRCP 23- Class Actions [need all (a) and one (b)]
(a) Prerequisites. (broad court discretion)
(1) numerosity; joinder would be impracticable,
(2) commonality; common questions of law/fact, suffer same injury, common contention, common answer
o Wal-Mart v. Dukes
Court denies commonality, basing on the merits of Title VII. Similar to Twombly- questions the
merits very early on; do stats, anecdotes, expert = common law of discrimination. No, wanted
smaller class, higher ratio of affidavits, promotion method other than supervisor discretion
P want to bring a nationwide class action suit against Wal-Mart for discrimination against all
women employees. Ps claim of commonality: 1) statistical evidence about disparities in
pay/promotion, 2) anecdotal reports from 120 employees, 3) sociologist expert testimony
Dissent: disagree over what is sufficient to find Title VII about whether combined corporate
culture and statistics is okay; common question of law/fact; finds Majority hostile to aggregate
litigation (1.5 million people)
(3) typicality; think Due Process, adequate representation and protection; and
(4) representativeness; sufficient expertise, capacity, rep will fairly and adequately protect the interests
Purpose: efficiency, impossible to bring all interested parties in class suit, resolve interest of all
people in that class at once
o Hansberry v. Lee
Not typical or adequate representativeness (fail 3 and 4 from FRCP 23(a)); not same aims
and interests- Case #1 it was stipulated 95% signed, it was not contested; Ps interests were not
represented because they wanted to challenge and no one in first lawsuit had that interest
Owners signed covenant preventing class from moving into area. Covenant doesnt apply to P
(b) Types.
Mandatory (members have no right to opt out, no notice required; preferred by lawyers to save money)
(1)(A) Incompatible standards- absent class action, D could be subject to incompatible mandates for
future conduct
Purpose: protects D from multiple/inconsistent obligations
(1)(B) Limited fund- absent class action, Ds available assets insufficient to pay all claims; class action
consolidates fund and distributes it fairly to all Ps
Purpose: protects nonparties, promotes equal treatment of all litigants
(2) Equitable- homogeneous class (e.g. employment discrimination); when D has acted or refused to act
on grounds generally applicable to the class, injunctive relief
Purpose: protects civil rights; problem is a class-wide problem
o Wal-Mart v. Dukes monetary relief can it be decided with a non-class action]
Court denies class under 23(b)(2) because Ps want backpay, which is monetary
individualized relief rather than injunctive indivisible nature. 23(b)(3) has procedural
protection to make it more appropriate
P want to bring a nationwide class action suit against Wal-Mart for discrimination against
all women employees.

Civil Procedure 21

(b) Types.
Voluntary (members offered chance to opt out of the class, mandatory notice through reasonable effort)
Cons: high costs of notifying each P, difficult to obtain settlement if numerous members opt-out
(3) Common question- (e.g. consumer rights)
Requirements: 1) common question of law/fact predominate, 2) particular interest of class
members to control their own lawsuits, 3) the commencement of other relevant lawsuits, 4)
desirability of single forum, 5) manageability of class (splintering problem)
(c)(4) Particular Issues Class- class action with respect to particular issues
o In the Matter of Rhone-Poulenc Rorer
Decertified P class because irreparable harm from immense settlement pressure. Blackmail
settlement just because of small chance they could end up bankrupt. Normally in federal court
you cannot appeal until final judgment; once you settle you cannot appeal
Hemophiliacs infected by AIDS virus from using Ds drug products. D won 12/13 other cases
tried. One of the 300 cases filed became certified as a class action FRCP 23(c)(4) for issue of
negligence. This would allow individual suits later to use verdict with collateral estoppel to block
relitigation on negligence issue.
Note: there are a bunch of cases that settled, D only goes to trial if they think they can win;
Posner is a little disingenuous
(e) Dismissal- need court approval, settlement hearing; court oversight/judicial supervision
Purpose: fairness, reasonableness, interests of individuals and unnamed Ps
(g) Class Counsel- court appoints based on experience, knowledge, resources (court leeway on bid system)
Concerns in selecting: potential for abuse, D buying off Ps lawyers at the expense of the Ps; no
individual client oversight (they dont have ability to reject settlement, dont get to choose the attorney)
o Bidding War
Lead attorney = most money, legal fee; Playing the Ds off of each other; 2 culpable people, separate
and try to get best deal; find out who has deepest pockets, who has the most damning evidence
Sothebys and Christies (duopoly in rare art, books, antiques auction); anti-trust conspiracy (match
policy of sellers nonnegotiable sliding-scale commissions) Collusion. Class action with everyone
who sold or bought goods through Ds.
Auction for Lead role
o Usual: lowest % amount attorney fee gets representation
o This case: set a number; you get nothing if you win less than that, you get % if you go over
Pros: great incentives for attorney to work hard, combat conflict-of-interest in class actions
Cons: if attorney realizes miscalculation and that he cannot win, he might walk away; Ds
dont know the cut-off number

22