ࡱ> a jbjbA]A] $+?+?.......EEEEEqGGGGGGGG+q-q-q-q-q-q-q,rRtPYq.GGGGGYqM..GGnqMMMG.G.G+qMB4vb....G+qMMnn..+qG tvEKo +qq0q7oHuMHu@+qM.DIntro 3 elements of jurisdiction must be had: Personal Subject Matter Proper Notice Also Need Proper Venue Personal Jurisdiction General 2 Types In Personam In Rem Every state possesses exclusive jurisdiction over persons and property w/in its territory Full Faith & Credit Clause. 14th amendment due process clause. Personal Jurisdiction is Constitutional right D can waive personal jurisdiction In Personam General Value of the judgment is on the person (Also applies to chattel) 2 Types of In Personam Jurisdiction General in personam jurisdiction DEF: D is subject to personal jurisdiction for any suit in that state Claim doesnt have to arise out of Ds contacts Rule: Ds contacts w/ state are continuous, regular & systematic Specific in personam jurisdiction DEF: D is subject to personal jurisdiction only for claims arising out of his contacts w/ the state. Rule: Minimum contacts needed between D & State. Claim must arise out of Ds contacts Traditional Basis for Establishing In Personam Presence ( General Jurisdiction Individual Rule: D is present w/in the state, when served w/ process. Includes states air space. Rule: Presence must be intentional Exception: Fraudulent Enticement /=/ Presence if only reason D was present was because P fraudulently invited him to the forum state w/ hidden intention of serving D Exception: Other Litigation /=/ Presence if D was in the state for purposes of handling other, non-related litigation. Corporation Incorporated in state HQd in state Licensed to do busines Doing business w/in state Continuous, Regular, & Systematic Consent Express Consent Voluntarily appears & waives due process rights Implied Consent DEF: State statute establishing basis for implied consent Limited by Due Process Corporations Cant be forced to give consent (No implied consent) Violates interstate commerce clause In-state agent for service of process = consent. Domicile ( General Jurisdiction Although D may not be present at-the-time, D has a status in the state. Domiciliary receives privileges and benefits from residing in the state Untraditional Basis Minimum Contacts Test General Corporation ( Specific Jurisdiction Action has to arise out of Ds contacts w/ forum Issue: Related to contacts w/ forum? Near impossible to establish general jurisdiction w/ a long arm statute REQ: State long arm statute Statute is limited by Due Process (Min. Contacts Test) Rule: Minimum Contacts + Fair Play & Substantial Justice. The more closely the contacts are related to the cause of action ( the fewer contacts required. Minimum Contacts Rule: D purposefully availed itself to the forum state. D could reasonably expect to be haled into court there. (Claim arises out of contacts. Or related to?) RL/CTR: Stream of Commerce Theory RL: Placing goods in the stream of commerce may be purposeful availment Depends on foreseeability Must be more than mere likelihood that product will make its way to the form state More than unilateral activity of P Forseeable in products chain of distribution D must be able to reasonably anticipate being subject to suit in the forum state CTR: Mere placing goods into stream of commerce isnt enough. Policy: Prevent D from burdens of distant litigation & Due Process. Fair Play & Substantial Justice Consider only after establishing minimum contacts Ds burden to prove that holding suit there would violate fair play and substantial justice Factors Interests of forum state (including burden) Ds interest EX. Burden Ps interest in attaining relief EX. Local forum Location of Evidence Judicial economy/ Interstate interests Applying law Misc. Transportation and communication have removed difficulty in defending foreign lawsuits Not unfair to make corporation subject to suit where it has benefited from that states laws. In Rem General Value of the judgment is limited to the property value (land) Jurisdiction over the property Rule: Property must be attached @ the outset. Policy: Provide D notification of lawsuit; Interest of Certainty. Atypical Property Property interest in a debt Marital Status (not alimony) Trust (traditional) In Rem type 1 DEF: P asserts a claim based on property w/in the forum Presumptively satisfies due process because landowner has purposeful contacts w/ that forum (minimum contacts through the land, for an action arising out of the land). Quasi-In-Rem Attachment DEF: Ps cause of action is unrelated to the property D is a foreign resident to the forum, but has property w/in it P attaches property to get personal jurisdiction and can adjudicate the claim up to the value of the property. REQ: State long-arm statute Rule: Minimum Contacts + Fair Play & Substantial Justice (See Supra) Federal Basis Jurisdiction Rule 4k1A: Federal court must use the same basis jurisdiction as the State trial court. Must use the same rules (ex. long arm statutes) as the State courts. ( Federal court only has personal jurisdiction if state court would have personal jurisdiction Exception 4k1D: Federal court may use a different basis of jurisdiction if Congress authorizes federal court to have nationwide jurisdiction. Doesnt violate Due Process Only need minimum contacts w/ nation. EX. anti-trust laws, Securities Exception 14: Allows serving of process for interpleaders (3rd party claims for indemnity/contribution) located w/in 100 miles of federal courthouse Must be served w/in 100 miles of federal courthouse Doesnt violate Constitution because Congress allows for nationwide service of process. Notice and Service of Process Notice Requirement Rule: Notice (= Service of Summons and Complaint) must be reasonably likely to reach the party. Exception: Where conditions dont reasonably permit notice, the notice given must not be substantially less likely to yield actual notice than others. Rule: Notice must be the best practical notice to reach the litigant Doesnt require best possible notice Doesnt require that notice is actually received Due Process requires that deprivation of life, liberty, or property by adjudication be preceded by reasonably calculated notice. Policy: Give an opportunity to be heard. Service of Process Rule 4e/h: Accepted Methods of Service of Process On Individual Delivering Service to D Doesnt require that D actually receive process, but D must be aware that you are serving him Leave copies of service @ Ds dwelling or usual place of abode w/ a suitable person relying therein Allowed more than 1 dwelling house, provided each is sufficient for permanent residence Policy: Interpret dwelling broadly in mobile society Deliver service to Ds agent Use of the service laws of the state where service is effect or court is located On Corporation Deliver summons & copy of complaint to an officer of the corporation, managing or general agent, or any agent authorized by appointment. Issue: D receives actual notice, but it wasnt in accordance w/ statutory method. ( Actual notice doesnt cure a void of service. Policy: Certainty & Predicatbility Rule 4b: P has 120 days to serve summons & copy of complaint to D Rule 4d: D can waive formal service of process Incentives: Extra time to serve answer If dont waive ( D may have to pay Ps fees for formal service. Subject Matter Jurisdiction General State courts have general subject matter jurisdiction All-purpose court. Federal courts have limited subject matter jurisdiction. Only have jurisdiction over federal question & diversity Federal courts have exclusive subject matter jurisdiction over some federal question cases Federal courts concurrent jurisdiction on diversity cases and some federal question cases. May have supplemental jurisdiction. Defect in subject matter jurisdiction Cant be waived Can be raised @ any time even after verdict Court may dismiss sua sponte Policy: Federal courts dont want to adjudicate matters that they dont have power. Certainty regarding the question of jurisdiction is more important than the finality of judgments and judicial economy. Burden is on P to prove that federal court has jurisdiction If claim is dismissed for jurisdictional deficiencies, statute of limitations can bar another action. Diversity Jurisdiction Rule: Diverse Citizenship + Minimum Controversy. General Even if there is diversity jurisdiction, courts wont adjudicate some matters: Probate (will hear cases involving conduct of estate administrator) Domestic relations & Matrimony relationship Policy: Judicial Economy & State courts are better equipped. Policy: Provide foreign parties a neutral forum Limit diversity jurisdiction Diverse Citizenship Complete Diversity Rule: All Ps must be diverse from all Ds (Minimal Diversity for some cases class actions) Time of Determination of Citizenship Rule: Partys citizenship is determined when the claim is filed Policy: Certainty regarding the question of jurisdiction Party can change citizenship status prior to filing claim, to establish diversity. Exception: If there isnt diversity @ the time of filing, but the issue isnt raised and the non-diverse party is dropped (by action of the party) from the lawsuit prior to reaching a verdict, then lack of jurisdiction cant be raised after a verdict. Determing: Individuals Rule: To be a citizen of a State, person must be a US citizen and a domiciliary of that State. Domicile DEF: Persons true, fixed, and permanent home and principle establishment, and has the intention of returning to whenever he is absent Rule: Change of Domicile Taking up residence in different domicile w/ the intention to remain there Issue: If move there w/o intention to remain there ( @ what point are you deemed to have intention to remain? Rule: Person can have only 1 domicile (but can have multiple residences) Rule: Until a person acquires a new domicile, he remains a domicile of his old state. Factors: Establishing Domicile Where registered to vote Where actually votes Where car is registered Where pays taxes Where heart is (intends to return) Alienage Jurisdiction Diversity jurisdiction allows for suits involving residents of a state and a foreign nation Rule: all residents of foreign nations are aliens ( no distinction between aliens from different countries Rule: No complete diversity if one side consists only of an alien, and the other side has an alien & state resident. If each side consists of completely diverse State residents ( aliens can be on both sides of suit No suits solely between aliens Rule: (For diversity purposes) An alien who is a US permanent resident is a citizen of the state in which he is domiciled Determining: Corporations Rule: Dual Citizenship State of incorporation, and Location of its principle place of business Use citizenship of both states to determine diversity. If either places of citizenship conflicts w/ the other party, there isnt complete diversity. Policy: reduce abuse of diversity citizenship Principal Place of Business Corporation has only 1 principal place of business Rule: Total Activity Test to determine the principle place of business Rule: Nerve Center test + Place of Activity test Rule: Nerve Center is the principal place of business, when: The activity of a corporation is passive There are several places of activity Rule: Place of Activity is the principal place of business, when: The sole operation (manufacturing) is in one state and executive offices are in another. There are several nerve centers. Determining: Associations and Partnerships Rule: Citizenship of the organization is the same as the citizenship of all its individual members Determining: Assignee/Assignor Rule: Assignees state of citizenship is relevant for the lawsuit Exception: Shall not have jurisdiction where assignment was improperly or collusively made to invoke jurisdiction. Misc. Rule: Legal representative of a decedent/infant/incompetent is deemed to be citizen of the same State as the person they are representing Minimum Controversy Rule: Controversy must exceed $75k Rule: Legal Certainty Std Rule: If, to a legal certainty, claim couldnt receive greater than $75k damages ( court doesnt have jurisdiction. Excludes costs of suit. If damages awarded dont exceed $75k, courts may impose costs on the party. w/ Injunctions: If it would cost D 75k+ to comply w/ injunction, or If it would cost P 75k+ w/o an injunction Aggregation of Claims One P v. one D P is allowed to add up multiple claims against D to meet the minimum controversy requirement Multiple Ps or Ds Each P must have >75k claim against each D One P cant combine his claim w/ another P in order to meet the requirement Nor can P aggregate his claims against several Ds Supplemental Jurisdiction If one P has a 75k+ claim, then another P who has a claim based on the same transaction can ride the coattails. Federal Subject Matter Jurisdiction General Federal courts have jurisdiction over actions arising under Federal laws (including Constitution). Policy: Federal judges are experts in federal law Well-Pleaded Complaint Rule: Ps prima facie case must arise under federal law. Matters other than the prima face case are ignored for determining federal question jurisdiction. Allegations of potential defenses are ignored Reason: no guarantee that D will argue a defense hat raises a federal question Policy: Provide certainty, Decides jurisdiction @ outset. For Declaratory judgments, if either side has a coercive claim under federal law, then the action can be brought in federal court. Removal Jurisdiction General Allows D to remove an action in State court to Federal court. Rule: Only allowed where federal court has original subject matter jurisdiction (i.e. diversity or federal jurisdiction) Only available to original D P cant remove if D files counter-claim 3rd party D cant remove. Narrower than federal courts original jurisdiction REQ: Removal Jurisdiction Rule: N/A if basis for removal is diversity and the claim is brought in Ds state of citizenship. Available to D regardless of his citizenship for federal question cases. Rule: If there are multiple Ds decision on removal must be unanimous Rule: Must be removed w/in 30 days of Ps filing of the claim 2 possibilities allowing cases that werent removable initially, to become removable later (after 30 days) If P amends the complaint w/ addition of a federal claim D can remove w/in 30 days of amendment A D whose presence in the case was a removal killer (diversity grounds) gets dropped from the action P must voluntarily drop that D from the lawsuit cant be decision of the court. Remaining Ds can remove w/in 30 days No removal if more than 1 year has passed since filing the cliam Federal question removal doesnt have this restriction Procedure of Removal D files notice of removal; doesnt motion Filed in federal court and serves copy on P If removal is improper: Procedural Defect P must make motion for remand based on procedural defect w/in 30 days of original removal. No Subject Matter jurisdiction Court can remand on its own P can motion to remand @ any time before final judgment After final judgment, case cant be remanded ( must be dismissed. Rule: The only proper federal district for removal is the district that geographically encompasses the state court. Removal w/ Diversity cases P can thwart removal by claiming damages less than 75k Jury is still free to award greater damages P cant thwart removal by joining a non-diverse D against whom P has no bona fide claim. Venue General Venue isnt jurisdictional. Rule: Ds failure to object to venue defect is a waiver. If default judgment is entered, cant attack on venue defect. Must attack venue defect directly. Where venue is proper? What if P sues in wrong county? Case is transferred to proper venue. Isnt dismissed because state has jurisdiction Transitory actions DEF: actions that could have happened anywhere. Many places of proper venue Majority of cases Local Actions Adjudication of real property rights (real estate) Cases where property rights are subject of law suit (EX. trespass) Proper venue is location of the property Federal Venue Rules General Infra only governs transitory actions. Rule: For local actions, venue is proper in the federal district the property is located. Doesnt require the best venue Policy: Give P options in selecting venue Rule: Options for Federal Venue 1st Option: Residency Provision If all Ds reside in a particular state, can sue in any federal district where one D resides. = domicile 2nd Option: Substantial Portion of Events Provision A judicial district in which a substantial part of the of the events or omissions giving rise to the claim occurred, or a substantial part of the property (real and personal) that the subject of the action is situated. 3rd Option: A judicial district in which any D may be found, if there is no district in which the action may otherwise be brought. Rare. Last Resort. Residency of non-individuals Corporations Rule: a corporation resides in any federal district that its subject to personal jurisdiction at the time the action is commenced (Can have many residencies, >2) Multi-District States Rule: Corporations contacts w/ that district has to be significant enough to submit it to personal jurisdiction as if that district were a state. If no such district, but the state has personal jurisdiction ( corporation resides in the district where it has the most significant contacts. Incorporation in a state is a state-wide contact. Venue is proper in every district. Aliens Rule: An alien (w/ or w/o permanent residence) can be sued in any venue of the US. Federal Improper Venue Rules Rule 1406: Motion to Dismiss for Improper Venue Court has the option of either dismissing or, in the interest of justice, transfer to where venue is proper. Courts rarely dismiss. Rote application of rule. If venue isnt proper ( court has to dismiss/transfer Court cant invoke motion sua sponte Rule 1404: Motion to Transfer to a preferable venue (forum non conveniens) Court can invoke motion sua sponte Moving party has the burden of proof. Factors: Determining if another venue is more appropriate Private Factors Where evidence is located Availability of witnesses Interests of justice Forum selection clause in K Public factors Unfairness of burdening citizens in an unrelated forum w/ jury duty. Courts application of foreign laws Administrative difficulties What court has an interest in adjudicating the matters Judicial Economy Ps choice of forum is entitled to greater respect when he made his choice based on his convenience. Doesnt consider whether the substantive law of the transferee court is less favorable to P than the transferor court. (See infra) If the more convenient forum cant be transferred to and the case must be dismissed to allow transfer, it wouldnt be appropriate if the transferee court yielded P a wholly inadequate remedy. Transferee District must have proper venue and personal jurisdiction Rule: Must be a venue where P could have originally brought the action. Choice of Law A federal court in a diversity action applies the choice of law rules of the state in which it sits. Rule: The transferee court applies the law that the transferor court would have applied. Only if its a 1404 transfer for convenience. @ federal level Cant transfer between countries ( must dismiss May impose certain conditions to allow suit in proper venue Can transfer between states @ state level Cant transfer between states ( must dismiss May impose certain conditions to allow suit in proper venue. Reason: Unfair to deny P opportunity to bring suit; he did everything right. Can transfer w/in state. Raising Jurisdictional and Related Challenges General Maj/Min: Maj: FRCP Min: Special Appearance Special Appearance Rule: D can only raise the defense of personal jurisdiction, and it must be the first thing D does. If D raises another defense ( D waives his right to contest personal jurisdiction. FRCP General Can join challenge of personal jurisdiction w/ other defenses. Rule: After D has been served, D must respond w/in 20 days (60 if waived service): Answer Puts all his defenses (procedural and substantive) into the answer Motion to dismiss: Rule 12b Made prior to an answer. 7 Bases for Dismissal: Lack of personal jurisdiction Lack of subject matter jurisdiction Improper venue Insufficiency of process (rare. Process is defective) Insufficiency of service of process Failure to state a claim upon which relief can be granted Failure to join a necessary party under Rule 19. Danger of Waiver Rule 12h1: Whether made in answer or Rule 12, whichever comes first, D must raise the following defenses. If D doesnt ( waives his right: Lack of personal jurisdiction Improper Venue Insufficiency of Process Insufficiency of Service of Process (If first make non-Rule 12 motion ( not waived) Rule 12h2: Time limit to raise the following defenses is the trial on the merits: Failure to state a claim Failure to join a necessary party. Rule 12h3: Defense of subject matter jurisdiction is never waived. Rule 12g: 12b motion must include all motions intended to be made. Cant delay filing answer by making another motion. Methods of Attacking Jurisdiction Direct Attack Use: Special appearance; Rule 12b/answer If direct attack fails ( must defend on the merits in that forum. Generally have to wait until after trial verdict to appeal jurisdiction Collateral Attack Ignore case allow default judgment to be entered. When P comes to Ds state to enforce judgment, D collaterally attacks validity of other states jurisdiction. Can only attack jurisdictional issue. D forfeited defense on the merits. Which Attack to Use If D has good defense on the merits ( Direct Attack. Issue: If action is in-rem, D faces possibility of subjecting himself to in personam jurisdiction. (many states allow for limited appearance) If D has weak defense on the merits ( Collateral Attack Home court is more likely to find that foreign court lacked jurisdiction. If D directly attacks, he cant later collateral attack. What Law Applies in Federal Court General Rules of Decision Act The laws of the State except where Federal laws provide otherwise shall govern in federal diversity cases. ( Use State substantive law; Use federal procedural law. Issue: When is federal law on point? Issue: What is substantive/procedural? Policy: Uniformity of Law Rules Enabling Act Supreme Court has the power to prescribe the rules of procedure for its courts. Such rules shall not abridge substantive rights. ( FRCP are valid TEST: On Point & Substantive/Procedural Is there a FRCP directly on point (or any federal law)? Yes ( Is it valid? Rule: Valid if arguably procedural. (All FRCP are arguably procedural ( Rules Enabling Act) On Point Analysis Read FRCP narrowly (especially if strong state interest) Made by delegate of Congress Read federal law broadly (made by Congress) No ( Erie-York-Bird Erie-York-Bird Is law substantive or bound up w/ substantive law? Yes ( apply state law No, just mode or manner ( continue Outcome Determinative Test (Would ignoring state procedural law result in different outcome than it the case was brought in federal court?) No ( Apply federal law Yes ( Apply state law, unless (continue) (Rules of Decision Act) Policy-Dicta: Twin Aims of Erie (Only different outcomes that cause) Prevent forum shopping Prevent inequity in outcomes between state & federal decisions Countervailing Federal Interest (weight competing state & federal interests) Determining the Content of State Law Rule: Federal District judge deciding diversity cases. In applying state substantive law if its unclear the federal judge interprets it as if he were the states highest court. Certification Procedure: Courts can sent tough issues of state law to states highest court to interpret the law. If federal court interprets law differently than the state court later interprets the law, the federal judgment stands. Policy: Finality in judgments Issue: If losing party didnt choose the forum, does it still stand? (probably) State courts, hearing Federal question cases Apply federal substantive law and state procedural law. Issue: What if state procedure is different than federal law. Rule: Apply the federal procedural law for rights that are essential to effectuate the purposes behind federal law EX. right to jury, burden of proof, sufficiency of evidence Pleadings General Pleading Types Maj: FRCP Min: Code Pleadings Rule: Complaint setting forth facts showing existence of a cause of action Role of judge is to determine whether there would be a right to recovery under some cause of action in substantive law Downfall: Judges placed too great a burden on pleader in requiring facts. Too many cases were getting dismissed @ pleadings Similarities w/ FRCP Both limited number of pleadings Liberal discovery to determine the issue FRCP Policy: All pleadings shall be construed as to do substantial justice FRCP: Complaint General Allegations in pleadings must be made on a good faith basis Emodies Notice Pleading DEF: provide D w/ fair notice about the grounds for the claim Shifts evidence finding to discovery Shifts some burden of expense onto D increasing Ps settlement leverage. Policy: liberal pleading std. because P is entitled to a trial on the merits Rule: Pleadings shall contain 3 things Grounds of subject matter jurisdiction (only in fed. Court) Short & plain statement of the claim showing that the pleader is entitled to relief Liberal; dont want a lot of facts Demand for judgment for the relief the pleader seeks Demand doesnt limit Ps recovery 2 Ways to Challenge Ps Complaint Legal Insufficiency DEF: P hasnt shown a claim that would entitle him to relief Rule: all emenents of claim must be alleged (can imply some). EX. Even if all allegations are true, there is no claim. Formal Insufficiency DEF: P hasnt set forth enough detail/facts to show that there is a claim. Rule: Provide D fair notice and the grounds for the claim EX. D is negligent. Rule 12b6: Can attack both legal & formal insufficiency If complaint is sufficient ( D must answer. Rule 8a2: Complaint must give D fair notice about what the grounds (not facts) are in which it rests Complaint isnt to be dismissed unless it is beyond doubt that P can present no evidence that would entitle him to relief Pretty much eliminates formal insufficiency Heightened Pleading Rule 9b: In an allegation of fraud or mistake, the circumstance constituting fraud or mistake shall be pleaded w/ particularity. Reason: Fraud allegations can do great damage to reputation Increases the formal sufficiency REQ. (Courts often wrongfully impose heightened pleading std. in substantively suspect cases) Twombley Rule: FRCP requires Notice-Plus Fair notice of what the complaint is and the grounds of which it rests. PLUS sufficient factual contacts Sufficient = enough facts to make the allegations in the complaint plausible Not Universal Std ( Flexible std. Pleader must amplify a claim w/ some factual allegations in contexts where it is needed to render a claim possible (complex cases) Rule 8e2: Allows Alternative Pleadings May state separate claims, regardless of consistency. REQ: Must be made in good faith Not a binding admission FRCP: Answer General D must respond to the complaint w/in 20 days w/ a Rule 12 motion or answer. Rule 12 Motions (Jurisdictional supra ( waives waivable defenses) Rule 12e: Motion for a more definite statement (for a pleading in which a responsive statement is permitted) Not a grounds for dismissal P & Rule 12e motion P cant normally make it because usually no responsive pleading is permitted to the answer P can make Rule 12f motion to strike irrelevant material in the answer Other Motions Rule 12b: motion to dismiss Rule 12f: motion to strike Answer General Rule: D has to plead a short & plain statement of the defense Fair notice and the grounds of the defense. Same philosophy that governs the complaint D must do 2 things: Respond to the allegations in the complaint (always) Raise new matter through an affirmative defense Response Rule 8b: If D doesnt deny an allegation, its deemed admitted Silence is deemed admitted. = Evidence for trial 3 types (Rule 8b) Admissions General Denial DEF: D denies every element in the complaint Rare. Must be in good faith Special Denial Admissions to part of the complaint & denial to other parts If a party is w/o sufficient knowledge to form a belief and states it, its deemed a denial Must be made in good faith Cant be used if D has reasonable access to the information, or its public record If you get to cute w/ your answer, your denial can deem admission to other facts Negative Pregnant FRCP are more forgiving than Code pleadings. Affirmative Defenses Rule 8c: Party shall set for affirmatively any other matter that constitutes an avoidance and affirmative defenseu Rule: If D doesnt plead an affirmative defense, he waives the right to prove it at trial D can plead in the alternative Post-Answer Rule: P doesnt plead in response to Ds affirmative defense unless the court order Reason: Rule 7a. Complaint, answer, and reply to a counterclaim. Ds denial of an allegation in Ps complaint joins issue automatically Reason: Rule 8d. If no responsive pleading is permitted If P doesnt reply to a counter claim, he waives his affirmative defenses. Reason: Rule 8d. Responsive pleading is permitted. Burden of Pleading Rule: P only needs to plead his prima facie case Rule: D must plead the affirmative defenses Rule: A party who has to plead something, also has to prove it at trial. Exception: payments Burden to plead is on P, but burden of proof is on D. Easier for D to prove payment, than P to prove non-payment Policy: Allocate burdens upon parties to promote efficiency and fairness of proving @ trial. Burden to plead is procedural. Burden of proof is substantive (Erie-York) Amended Pleadings General Applies to both P & D Policy: Liberal Pleading ( Decide cases on merits not technicalities Rule 15a: Allowed to amend once as a matter of right, @ any time before a responsive pleading is served. If no responsive pleading is permitted ( any time w/in 20 days. If you cant amend as a matter of right ( must motion to amend (Rule 12 motion is not a responsive pleading ( still can amend) Can put anything in an amended answer that you could have put in the original answer (EX. can insert the waivable defenses if D didnt make a motion first). Rule 15b: Leave to amendment (grant motion) shall be freely given where justice so requires unless it results in undue prejudice to the other party. Presumption in favor of amending the pleadings. Burden is on the other party to show that it would cause undue prejudice. Factors: Undue Prejudice Because of passage of time, other party is unable to prepare Other party suffers a litigation hardship to a detrimental change in their position (Every amendment is prejudicial) ((Courts may grant continuance to other party to cure some types of undue prejudice) No time limit to amend a pleading (up through trial itself) Rule: allowed to make amendments to conform pleadings to the evidence proved @ trial (providing it meets 15b standard). During Trial When issues not raised by the pleadings are tried by implied consent (no objection raised ( the issues should be treated as if they had been pleaded. Failure to amend doesnt affect the result. (Book: If evidence is related, not implied consent. Unfair to conclude party knowingly consented) If other party objects to issues not raised in the pleading ( party must motion to amend pleadings ( judge applies 15b std. Continuance Courts are wary of granting continuances during trial because it prejudices the jury After Jury Verdict Rule 54: Every final judgment should be granted, even if that party hasnt asked for such relief in their pleadings. If damages awarded were higher than amount pleaded ( must amend pleadings to conform w/ damages awarded Must apply 15b std ( sometimes courts wont allow party to amend pleadings to conform to jurys greater damages Rule 15c: Relation Back to Amendments (after statute of limitations) (trying to tack on a new claim, but new claim would be barred by statute of limitations) Policy: Statute of limitations Repose Quality of Evidence Rule 15c2: if the new claim is based on the same transaction or occurrence from the original pleading (facts from original pleading put D on notice) ( relation back is allowed Deemed to have been asserted @ the original filing for the statute of limitations issue. To allow amendment( Still must apply the 15b std of undue prejudice Rule 15c3: Amending to add new D Allowed where: (c2) Arose out of the transaction set forth in the pleading; (c3a) Received notice w/in 120 days of filing complaint; (c3a) Wont be prejudiced in maintaining a defense; and (c3b) Knew action should have been brought against him Rule 15c1: (For diversity actions) Rule: If the State law has more liberal approach to relation back ( apply State law. (If state law is stricter, FRCP is on point) Sanctions: Rule 11 General Discourages frivolous litigations practices Doesnt apply to discovery. Create tension between: Not cluttering courts w/ frivolous litigation, and stifling creative and zealous advocacy. Rule 11a: Attorney must sign every paper that he is serving. Applies to every pleading, written motion, and paper. If not signed ( can be stricken. Can be corrected if omission is brought to attorneys attention Rule 11b: Stop & Think Provisions Rule: By presenting it to the court, attorney certifies that to the best of his knowledge, information, and belief formed after an inquiry reasonable under the circumstances: Its not presented for improper purpose Warranted by existing law or by a non-frivolous argument Likely to have evidentiary support. Denials of factual contentions are ... reasonable based on a lack of information or belief. Attorney must have reasonable basis for the lawsuit (So long as jury could go either way) Rule: Attorney has continuing duty to refrain from advocating something he doesnt have a reasonable basis for. Sanctions for Violations General Arent mandatory Factors: in imposing sanctions Isolated/repetitive Willful/negligent Intent to injure Engaged in similar conduct in prior cases Effect on litigation Can be placed on: Attorney Law firm Clients Policy: Deterrence (not to punish or compensate) Monetary Sanctions If necessary for deterrence, court will make offending party pay the attorneys fees of the injured party that are directly attributable to the violate. Rare. If lawyer used frivolous legal argument ( cant be imposed on client. Non-monetary Sanctions EX. strike pleading, answer complaint; censure attorney. Rule: 21 Day Safe Harbor Rule: Court cant impose sanctions on the other side, unless there is notice and an opportunity to be heard. Procedure: Injure party drafts motion, setting forth violation and request for sanctions. Serves upon violator 21 days after serving on other party ( files motion w/ court. If offending party w/draws offending paper before 21 days, Non-offending party cant file its motion. Policy: Self-regulation of attorneys; Judicial economy. ( Waivable defense. Discovery General Hand-in-Hand w/ liberalized pleadings (Narrow issues down) Purpose: Ascertain the strength and weaknesses of your case and your opponents case Preserve evidence for trial Weed out false claims Procedure: Rule 29: After an action is commenced, parties are required to meet and setup a discovery plan By stipulation, parties are free to consent to a different procedure of discovery. Not allowed to engage in discovery until this conference. Present their plan to the court. Initial Disclosure Certain things that each side must hand over w/o opponent asking (Many states dont have initial disclosures) Discovery Only must turn over evidence if other side demands it. Several types of Sanctions: Rule 37d; Rule 37b2. EX. Preclusion; striking pleadings of parties. Rule 26e: Continuing duty to supplement, correct, and complete prior discovery/initial disclosure responses. Rule: If you serve a non-party for any reason ( have to give other parties notice Initial Disclosure Rule 26a1: Party must disclose following information early w/in serving process: Witnessess supporting the disclosing partys case Documents and tangible things supporting the partys case Must make initial disclosures based on information then readily available to it. Not excused from making initial disclosure because party hasnt full completed investigation. Rule 47c1: If party doesnt follow its duty to disclose, it may be subject to sanctions. Discovery General If demand for information is proper, then party served w/ demand must turn over the requested information. Purpose of Discovery: Generate Evidence & Narrow Issues 5 methods of discovery Depositions Interrogatories Demand for production of documents and things Conducting a physical or mental examination Requests for admission Scope of Discovery: Rule: Parties may obtain discovery of any matter relevant to claim or defense in the pleading if its not privileged No fishing expeditions (must be more than relevant to the subject matter) Federal court can subpoena non-parties for information in other states. Discovery is broader than admissibility @ trial Rule: Discovery request must reasonably lead to the discovery of admissible evidence. Affidavits are written evidence, under oath, used to support motions Depositions Rule: Litigant can take a deposition of any other party to the lawsuit or any person who has relevant information. Procedure: (unless stipulate otherwise) Occurs in lawyers office Both parties are present. Requesting party goes first (paying for it) Other party has chance to cross-examine only in response to first partys questions. Court stenographer transcribes Q&A. Witness is under oath. Deposition evidence can be used @ trial Rare. Because both parties were present. If party doesnt show up, he may be sanctioned. Interrogatories Rule: Can only be used on parties to the lawsuit Reason: Burdensome. Might need lawyer DEF: Written questions that require written responses under oath Procedure: Serve on the party (mail to lawyers) Person & lawyer answer questions together Under oath Evidence Quality Inferior to Deposition Cant watch witness answer the questions or cross-examine Answers are coached Still Useful Where you seek to ID the existence of documents, especially w/in an organization Party must provide information that is reasonably available to it Corporation: has to find relevant employees w/ relevant information (In depositions, persons only answer questions they themselves know) Rule 34: Demand for Production of Documents & Things REQ: Production of actual documents and things Includes all tangible evidence including electronic information Must be w/in possession of the party served w/ the demand Procedure: For Party Serve notice on party. If dont turn over ( sanctions. For Non-Party Serve subpoena on non-party. If dont turn over ( Contempt. Can make depositions and demands for documents @ different times. Rule 35: Conducting a Physical or Mental Examination Rule: Where a partys or person under control of the party physical or mental condition is in controversy, the court may order that party to be examined by a physician hired by the opponent. Only discover rule that requires courts permission. Applies only to parties and minors under their control. Narrow (doesnt include chief employees). Rule 36: Requests for Admission Procedure: Party serves demand on other side, requesting admission of specific, clear-cut facts. Requires other side under oath to admit or deny that factual contention. (things that werent established in the pleadings) Can be used to admit that documents are genuine. The original admission is binding for the lawsuit Regardless if contrary evidence later comes up. Privilege Rule: Confidential communication is privileged not underlying facts between parties of special relationship. Policy: Privileged information is more important than fact-finding. Work Product Immunity 2 Types of Work Product Ordinary (Facts) More Easily discoverable Core (Opinion) Almost never discoverable. (Ex. Experts opinion) Rule: Materials prepared in the anticipation of litigation, are subject to work product immunity (privilege). Doesnt apply to materials prepared in the ordinary course of business Underlying facts arent privileged Must hand over all relevant facts discovered even if came @ great expense. If accepted as fact ( has to be disclosed Applies to anybody acting on behalf of the party not just attorney. Exception: Where facts are no longer discoverable elsewhere, and its due to no fault of the other party ( Work product may be discoverable. Test: Other party has a substantial need, and denial of discovery would cause party undue hardship. The need and inability to duplicate must not be due to that partys own fault. Policy: Attorney needs zone of privacy to protect the fruits of her labor Greater good for the adversary system Facilitate pre-trial discovery Holding otherwise may lead to parties destroying work product Dont want parties to rise the wits of their adversary (Demoralizing) Experts Rule: Party must disclose expert witness information, if that witness will be called @ trial. Must turn over: Expert has to prepare written report setting forth her opinion The basis and reasons for the opinion The data or other information considered by the expert even if they rejected it Qualifications of the expert. Penalty for failing to turn over is preclusion of that expert. If expert isnt used as witness for trial ( work product and not discoverable. Summary Judgment General Judgment as a Matter of Law Jury is dismissed. Directed verdict for that party. If there is a genuine issue of material fact ( no directed verdict JNOV Can only be made if party previously motioned for JMOL Circumstantial evidence is legit. Summary Judgment is a pre-trial motion General Purpose: Wrap up lopsided evidence cases before trial Come out from behind pleadings and look @ evidence STD: Granting Summary Judgment If this were a trial, could I grant a directed verdict? (Shall be rendered if no genuine issue of material fact Either side can move for summary judgment w/ respect to anything in the pleadings. Burden Placed on the Moving Party Rule: Moving party must come forward showing the absence of issue of material fact. Done w/ paper evidence If the moving party doesnt meet its own burden, doesnt matter what evidence other party puts forth. 2 Ways to Meet Initial Burden Affirmative Evidence (Typical) Rule 56e: Evidence must be admissible @ trial (no hearsay) EX. Affidavits, interrogatories Demonstrate, from things already in the record, that the other party cant meet his burden of proof (alternate) Only available to the party that doesnt have the burden of proof @ trial Dont need affidavits. EX. P failed to answer interrogatories Rule 56f: Safety Valve Allows summary judgment to be denied where the moving party is acting prematurely. The non-moving party must be lacking evidence that is due to no fault of their own. If Moving Party Meets Initial Burden ( Burden Shifts to Non-moving Party Rule 56c: adverse party cant rest on their pleadings (Pleadings arent evidence) Must show genuine issue of material fact. Deciding Summary Judgment Motions Rule: Must consider the burden of proof @ trial Whether a jury could find for that party, given the burden Rule: Dont Assess Credibility of Evidence Credibility questions are for the jury (Still a dispute over the facts) Test: If evidence were submitted @ trial, could a reasonable jury believe him? Dont have to accept evidence that is faulty as a matter of law Preclusion General 2 Types Claim Preclusion Issue Preclusion Policy: Res Judicata / Claim Preclusion Party should have only one full & fair opportunity to have their matter heard. Repose Finality Judicial Efficiency. Due Process requires a full and fair opportunity to litigate. Claim & Issue preclusion are affirmative defenses If not raises ( Waived. Claim preclusion Scope of a Claim General A party must raise all claims w/in the relevant scope of the first lawsuit. Once there is a final judgment on the merits ( he is precluded from suing on that same claim Approaches to the Scope of a Claim Transactional Primary Rights Same Wrongful Act Same Evidence MAJ: Transactional Rule (NY+FED): Claim is defined as arising out of the same transaction Factors: Arising out of Same Transaction Pragmatic Approach Facts are closely connected in time, space, origin, and motivation Form a convenient unit for trial purposes Treating them as a single transaction comports w/ the expectation of the parties and of the business practice Misc. If another claim from the same transaction, arises after the final judgment on the merits ( claim preclusion Contract Cases Rule: Each K is viewed as a separate claim/transaction Pragmatic approach: business practice Regardless if Ks were negotiated @ same time Caveat: Installment payments Rule: Treated as separate obligations. Primary Rights Rule: Claim is defined by the rights violated Same Wrongful Act Rule: Claim is defined by wrongful act in question Same Evidence Rule: Claim is defined by using the same evidence to prove liability Rule: Claim Preclusion Must involve the same claim Parties must be identical or in privity w/ somebody who was a party. First case must have ended in a valid final judgment on the merits Privity Rule: Party is in privity, where: Party to the prior suit was accountable to non-party, or had fiduciary duty. (Ex. Parent suing for child) Successive (same) property interest, (Ex. Land) Concept of Fairness No virtual representation for shared legal interest Valid Final Judgment on the Merits Rule: Valid Court had jurisdiction Doesnt matter if judgment was wrong on the merits Rule: Final Final in the trial court. Pending appeal is irrelevant Rule: Merits Any judgment for P is on the merits even default judgments Judgments for D: On the Merits: Jury verdict or summary judgment Dismissal w/ prejudice. Dismissal for failure to state a claim Not on Merits: Procedural Ground Dismissed w/o prejudice Exceptions to Claim Preclusion Rule: If to no fault by P, P is unable to bring a related claim in the first suit because of courts limited subject matter jurisdiction ( that claim isnt precluded. Prior court expressly reserved Ps right to maintain second action. Judgment in the first action was plainly inconsistent w/ fair and equitable implementation of laws For reasons of substantive policy involving a continuing wrong Extraordinary Reason (Rare) Misc. Change in the law doesnt create a new claim. Issue Preclusion General Where P is suing on a different claim, but there is a particular fact issue that was decided in a prior litigation. Rule: Prior valid final judgment on the merits (Same) Same issue Actually litigated and decided Issue must have been essential to the outcome Party against whom issue preclusion is asserted, had a full and fair opportunity to litigate the issue, or was in privity w/ somebody who had the opportunity Min: Mutuality Actually Litigated and Decided Rule: Came to judgment more than just buried in pleadings. Actually Litigated & Decided Trial verdict; Summary Judgment Not Litigated Stipulations; admissions in pre-trial discovery Maj: Default Judgments Reason: May not have been incentive to litigate (See Infra) Essential Rule: An issue is essential if a different decision on that issue would produce a different outcome. When a case could be decided on more than one ground, and its impossible to tell on which ground it was decided ( neither verdict gets issue preclusion Nonessential Factfinding Gratuitous Ruling: A jury decision that didnt need to be made ( Isnt Issue Precluded Full & Fair Opportunity to Litigate + Privity Full & Fair Opportunity ( See Factors Infra Privity ( Same as Supra Maj/Min: Mutuality Maj (NY+FED): Non-mutual Issue Preclusion Rule: Issue preclusion can be used by somebody who wasnt a party to the prior case Reason: Judicial Economy Party already had full and fair opportunity Misallocation of resources to re-litigate Non-Mutual Defensive Issue Preclusion Always allowed, as long as P met 5 requirements for prior case (Prior P always had incentive to fully litigate) Non-Mutual Offensive Issue Preclusion Not black-letter rule. Factors: Allowing Non-Mutual Offensive Issue Preclusion Fairness Procedural Advantages for D in the in the new forum that he didnt have in the prior suit Future Litigation isnt foreseeable No Incentive to fully litigate the first case Inconsistent Judgments Judicial Economy Ps are encouraged to wait & see how prior trial results Whether P could have easily joined the prior action Rule: Std of Proof Higher Std @ prior action If P won ( issue preclusion allowed (offensive) If P lost ( issue preclusion not allowed Lower Std @ prior action If P won ( Issue preclusion not allowed If P lost ( Issue preclusion allowed (defensive) Min: Mutual Issue Preclusion Rule: Issue preclusion can only be used by someone who was a party, or in privity w/ a party, to a prior case. Reason: Fairness Either both parties can be bound, or neither can be bound. Federalism & Preclusion Court must give full faith & credit to prior judgment Rule: New court must treat the prior judgment in the same way that the original court would treat it. EX. NM-st1 uses Primary rights; NY-fed2 must use primary rights. NM-st1 uses mutual issue preclusion; NY-fed2 must use mutual issue preclusion. Joinder General 2 Part Test Rule that allows for joinder? Independent matter jurisdiction? No ( Supplemental jurisdiction? Policy: Efficiency (Judicial Economy) Must always be complete diversity! Joinder General Rule 42b: Separate Trials Rule: The court, in furtherance of convenience/avoiding prejudice, may order a separate trial of separate issues or claims. Safety Valve Joinder of Claims Rule 18a: Joinder of Claims Rule: Party asserting a claim, cross-claim, or 3rd party claim, may join as many claims as he has against the opponent. Open Season If dont assert ( claim preclusion is possible. Rule 13: Counterclaims and cross-claims a: Compulsory Counterclaim Rule: If arises out of same transaction/occurrence that is subject matter of opposing partys claim ( counterclaim must be raised (or will be claim precluded) IF default judgment, and dont raise claim ( = Claim Preclusion Reason: Judicial economy; repose; finality Protect P (Losing)Against: saved courts time by defaulting b: Permissive Counterclaim Rule: Can assert any claim not compulsory open season. If Dont assert ( no claim preclusion g: Cross-claim against co-party Rule: Arising out of the same transaction/occurrence as which is being asserted by P. Always Permissive (not mandatory) ( No claim preclusion, if dont make claim Not opposing parties, under R13 Should raise because of risk of issue preclusion Joinder of Parties Rule 20: Permissive Joinder of Parties Rule: all persons may join/be joined as Ps/Ds, if: Sameness of transaction/occurrence/series of transactions/occurrences (Ex. indivisible injury) Question of fact or law in common (Must have complete diversity) P makes initial determination based on tactics. Rule 21: Misjoinder of Parties Severance ( split into separate actions w/ separate docket numbers Rule 14a: 3rd Party Joinder, by D (Impleader) DEF: D impleads 3rd party for all or part of Ps claim against D If D loses ( 3rd party D may be liable for all or part of it If D wins ( 3rd party D is off the hook. Rule: 3rd party P @ any time after commencement of suit, D acting as 3rd party P may serve process on a party who may be liable to the 3rd party P for all or part of Ps claim. (= transactionally related claim) If w/in 10 days after serving original answer ( doesnt need court permission. Isnt mandatory If didnt assert a claim ( No claim preclusion (still potential issue preclusion) If D impleads 3rd party ( must assert all related claims Once assert claim ( risk of claim preclusion. May assert any claim, R18. Rule: 3rd Party D 3rd party D = opposing party ( compulsory counterclaim, R13 Downsloping Claim Rule: 3rd party D may assert any claim against P that is arising out of the same transaction or occurrence that is the subject matter of Ps claim against 3rd party D (through 3rd party P). Upsloping Claim Rule: P may assert any claim against 3rd party D arising out of the same transaction or occurrence that is the subject matter of Ps claim against 3rd party D. IF either side asserts claim ( = opposing parties ( compulsory counterclaims, R13. Rule only allows for impleader ( NEED substantive law for indemnity/contribution. Supplemental Jurisdiction General If no independent subject matter jurisdiction for independent claim ( supplemental jurisdiction If meet USC 1367a ( = Constitutionally allowed to hear claim Matter of Discretion Claim raises novel or complex issues of state law Claim substantially predominates the claim which federal court has subject matter jurisdiction Dismissed all claims over which it has original jurisdiction Timing of dismissal @ trial? (Amount of completed litigation) Exceptional circumstance (Rare) Joinder of Claims/Parties Original Claim Based on Federal Question Rule 1367a: Supplemental jurisdiction over all claims arising from a common nucleus of operative fact. (Claims so related to the claim w/ original jurisdiction that they form the same case or controversy) Policy: Pro-P Want to hear federal claims. Original Claim Based on Diversity Rule 1367: Supplemental Jurisdiction, where: a: Claims arising from a common nucleus of operative fact. b: NO supplemental jurisdiction over claims by P against persons made parties under Rule, 14,19,20,24. Policy: Pro-D; Anti-P D had no choice in choosing the forum/ Eff diversity. Issue: Who is a P? Rule: Ds and 3rd party Ds are always not Ps. ( even if asserting counterclaims or is 3rd party P Issue: Is P a functional D, if hit w/ a counterclaim? RL: No. P is always a P Reason: Could purposefully not join party. If compulsory counterclaim ( Not precluded from filing later. Was due to no fault of P. CTR: Yes. Reason: Efficiency; USC1359 forbids collusive action. Class Actions General DEF: One person (Representative) sues personally on both her own behalf and on behalf of all others similarly situated Class members arent parties, but are bound by the outcome. Privity ( fair to bind them, if represented fairly. No need to attain class member permission. Can have D classes, as well as P. Policy: Economy and efficiency Competes w/ class members autonomy Class Action Fairness Act Purpose: get massive class actions into federal court Reason: Some state courts are too liberal, making it tough on business Various Roles D Threat of massive judgment is strong pressure for settlement. Class Action Representative Pays for notice to parties If wins ( later recover from losing party Responsibilities Generally no financial reward Motivated by principle. Rare bonus payment Lawyer Danger of motivation by economics potential for abuse. Court Maintains managerial, supervisory role throughout entire lawsuit. Purpose: Ensure adequate representation. May interject issues that parties dont raise IF settlement ( court must approve the terms Ensure representative/lawyer isnt selling out Settlement must be fair and reasonable Judge discretion. Ensure Adequacy of Representation!! Ensure class has its due process. Avoid later collateral attacks Subject Matter Jurisdiction 3 Ways Federal Question Rule: Traditional Diversity Complete Diversity of Class Representatives 1 Representative w/ Claim exceeding 75k Supplemental jurisdiction over any other representative. (1367b doesnt take away Sup. Jur. from Ps joined under R20) Rule: USC 1332 Minimal Diversity 1 member of the Class is diverse from Aggregate amount in controversy exceeds $5mil (may decline s.j. jur. If 1/3 to <2/3 of P share same state as D. Must decline if >2/3 share). Removal of Class Actions Rule: D can remove the action, even if D is a citizen of the forum State. Rule: If multiple Ds, any one can remove. Dont need unanimous decision. FRCP Rule 23: Class Certification Prerequisites General Purpose: Interlocking REQ that seek to avoid class actions that deprive members of due process ( Prevent later collateral attacks If collateral attack succeeds on jurisdiction, none of the class members are bound only the class representatives. Procedure: P files complaint alleging that he is suing for himself and on behalf of all others similarly situated. Alleges its appropriate for class action. Doesnt receive consent of any supposed members After action commences ( P motions court seeking class certification Until judge certifies ( no affect on alleged class If judge doesnt certify ( nobody in class is bound; representative is just suing for himself Judge discretion as to certification, based on Rule 23. Decides w/ evidence. Must meet both Rule 23a and 23b 23a: Applies to all class actions Rule: Must meet all (Inherent REQ: Defined Class) Numerosity Commonality Typicality Adequate Representation Rule: Defined Class Must be definable class. Purpose: Know who is and isnt bound Representative must be a member of that class Must share same interests (If doesnt, what good is he representing the class) Class must have a cohesive and coherent interest Unified not conflicting Must be a manageable group Makes sense as a class Factor: How to distribute proceeds and apply remedy Numerosity Rule: Class is so numerous that joinder of all members is impracticable. Dont result to class action unless there is a necessity for it. Guideline: <40 ( probably wont get certified If 30 people in 30 states ( could get certified Commonality Rule: Question of fact or law common to the entire class Shared legal interest Typicality Rule: The claims or defenses of the representative parties are typical of the claims or defenses of the entire class Unified interest not conflicting Purpose: Adequacy of representation for the entire class not just part. Assure that representative is raising the same issues and, evidence, and claims as the class would, w/ the same zeal and advocacy. Class is bound by result and will be subject to claim and issue preclusion ( make sure representative raises all claims. If representative claim is unique to him ( might sell out and not represent class Fix: If missing typicality for some issues Only certify class for some issues Create sub-classes Representative for each issue Adequacy of Representation Factors: Representative Good physical condition Good mental condition Resources Dont need to be rich, but need enough to keep case moving Level of education Knowledgeable about the facts and issues. Good trustee on behalf of others Absence of conflicting interests Loyal to class; not tempted to sell out (Doesnt need to be best representative ( Just adequate) (Discover through depositions; background checks) REQ: Lawyer Legally competent not just passed bar Financially and logistically capable of dealing w/ class action Honest & Ethical No conflicting interests Doesnt typically represent similar Ds May need to divide action into sub-classes Different Representatives for Different issues. 23b: Must meet one or the other (2) Injunctive or Declaratory Relief General Makes sense for class action. Fault harms everybody; remedy helps everybody. Avoids incompatible standards of conduct, which might occur in multiple, non-class suits. Typical class action Damages? Rule: Can get damages if theyre incidental to the injunctive relief EX. Seeking job back, and also lost wages. Notice is Discretionary Judge may require notice to class members. Class members have no right to opt out May question adequacy of representation. (3) Damages + Predominance of Common Issues and Superior General In the interests of efficiency, if common issues predominate, and a class actions is a superior way to resolve those predominate issues ( Allow certification. Takes away members autonomy Members have right to opt out Compromise for taking away autonomy. If opt out ( not bound by result, not in privity. If he later seeks to use nonmutual offensive issue preclusion ( look at factors. Judicial economy v. easy joinder of prior suit Must notify everybody in the class. Must inform them of their right to opt out. Rule: Best practicable notice under the circumstances Individual notice to all members who can be identified through reasonable effort (1st class mail no need for personal delivery) Issue must predominate Can have some individualized issues ( resolve later w/ mini-trials (Ex. damages) Most class actions get killed here. 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