RAECHELLE C. YBALLE
CIVPRO OUTLINE
SPRING 2001
PROF. ANDERSON
1. permits an unjoined and unwanted party to enter into the suit
2. rationale
a. lawsuits may have effects on persons not joined
b. although the effects do not extend to the degree of res judicata à it still may have a stare decisis effect
3. contra rationale
a. intervention may complicate and weaken the parties’ litigation strategy
b. also, parties may have different goals/objectives – erodes the principle of party autonomy
4. Rule 24
a. intervention as of right
b. permissive intervention
1) applicant’s claim or defense and the main action have a common question of law or fact
2) there is no direct interest required
3) joinder of the party seeking to intervene CANNOT destroy complete diversity
4) must have a separate ground for jurisdiction
5. ELEMENTS: Intervention as of Right
a. intervention must be timely (Marcos case)
1) how long did the party seeking to intervene know of the his interest before making the motion?
2) what will be the prejudice to the existing parties from any delay?
3) will there be prejudice to the applicant if motion is denied?
4) other unusual circumstances?
b. party seeking intervention must have an “interest” in the property or transaction
1) must be a significantly protectable interest
2) direct interest in the property or transaction at issue is not necessary
3) interest may simply be impaired by the outcome of the litigation
c. interest must be in some strong way risked by the litigation
1) question of impairment is not separate from the question of the existence of an interest
2) even though not allowing intervention will not lead to res judicata for party seeking intervention, litigation may have a stare decisis effect
3) stare decisis effect may be sufficient to satisfy this requirement
4) impairment of the interest is a practical matter
5) not limited to consequences of a strictly legal nature
6) will there be repeated litigation? could those litigations yield contrary results on substantially similar facts as the previously litigated case?
d. intervention will be denied if those already in the lawsuit can adequately represent the interest of the person seeking to intervene
1) does one party have interests which are the same as those of the party seeking to intervene?
2) same level of knowledge?
3) same level of expertise?
4) adequate representation by the parties in the lawsuit
a) party seeking to intervene has the burden of proof
5) incentive to compromise, to the detriment of the intervenor, on an issue/interest of importance to the intervening party?
6) possibility of divergence of interest does not need to be great in order to satisfy the burden of the intervening party
6. Policy considerations
1) there is some value in having ALL the parties before the court
2) they will be bound by the result
3) intervention may make trial unwieldy?
4) BUT if intervenors are a limited group, unwieldiness is not a problem – court can and still has control
5) protecting an intervenor’s interest
a) would concern for finality and completeness of judgments would be better served by mandatory joinder procedures? maybe this is better addressed using compulsory joinder?
7. CONTRA ARGUMENT: Compulsory Joinder instead of Mandatory Intervention
a. parties to a lawsuit are in a better position to know if 3d party will be affected
b. the burden should be placed on the parties rather than on the intervenor who has to have knowledge of the suit before he can even try to intervene
c. will need to join parties be burdensome?
d. will it discourage important litigations such as civil rights actions?
e. potential adverse claimants may be numerous and difficult to identify
f. if not joined à possibility of inconsistent judgments
g. judicial resources will be needlessly consumed in relitigation of the same issue
1. a form of declaratory judgment
2. requires competing claimants to litigate their rights to some property in question
3. Statutory Interpleader
a. § 1335(a) – jdxn
1) district courts shall have original jdxn
2) value of ppty must be $500 or more
3) two or more adverse claimants – minimal diversity
4) claimants must be of diverse citizenship
b. § 2361 – process and procedure
1) allows for nationwide service of process
2) where the claimants reside or
3) where the claimants may be found
c. § 1397 – venue: any interpleader action under § 1335 may be brought in the judicial district where one or more of the claimants reside
d. § 2361 – statutory authority for injunctions
4. Rule 22 Interpleader
a. there must be complete diversity between
1) stakeholder
2) claimants
b. amount in controversy must be at least $75K
c. need PJdxn
d. service of process under Rule 4
e. Venue
1) residence of any claimants if all from one state
2) district were dispute arose
3) district where property is
4) district where any claimant found if no other basis for venue
f. § 2283 is the basis for injunction – “where necessary in aid of jurisdiction”
1. In general
a. a class action permits one or more parties to sue or be sued as representative parties on behalf of others who are similarly situated
b. Rationale: if many people find themselves in the same situation, aggregation of lawsuit into one has many advantages
2. Standard for Class Certification
a. court must conduct a rigorous analysis as to whether Rule 23 requirements are met
b. simply because a complaint “parrots” the Rule 23 requirements does not necessarily mean class will be certified
c. Rule 23 (a) Requirements
1) numerosity: class is so numerous that joinder of all members is impracticable (usually, there are ~100 min.)
2) commonality: there are questions of law or fact that are common to the class
a) common issues that if resolved will advance the litigation
b) if individuals have to submit separate proofs to establish liability = no commonality
c) presence of individual questions does not necessarily defeat certification
d) Rule 23 only requires common questions not the absence of individual ones
e) differences in damages will not defeat certification
3) typicality: claims or defenses of the representative parties are TYPICAL of the claims and defenses of the class
a) Falcon = no certification of the class
(1) different harms not suffered uniformly among the propose class representatives
(2) Title VII cases could become a potential company-wide class action case
b) Communities for Equity = certification of the class
(1) various discrete harms alleged by Ps are alleged to have been suffered by all members of the class
(2) diverse manifestations of discrimination are not sufficient to extinguish typicality
(3) should allege that there is an underlying policy of discrimination
4) adequate representation: representative parties will fairly and adequately protect the interest of the class.
a) representatives must have common interests with unnamed members of the class
b) it must appear that representatives will vigorously prosecute the interests of the class through qualified counsel
c) will interests of those class members who do not considered themselves adversely affected by D’s actions/conduct be adequately represented?
(1) could D adequately represent their interests?
d) would relief sought be at the expense of the other types
(1) limited availability of resources
(2) can it be resolved by creating subclasses?
(3) can always defer subclasses in the relief stage of the trial
e) what is the quality of class counsel? are they qualified to represent the class as attys?
3. Class must also satisfy any of the requirements set forth in Rule 23(b)
4. Rule 23 (b) ___________________
a. standard of review = abuse of discretion (high burden)
b. must meet any of the following
1) separate actions by the class members
a) would create a risk of inconsistent results OR
b) would impair the interest of other absent members of the class
c) if there is a counterclaim, will it compel other defendants to come forward and offer individual defenses?
2) common questions of law and fact
a) must predominate over individual issues
b) class action is superior to alternative methods of adjudication
c) under this test, there must be NOTICE TO ALL MEMBERS so members can opt out
3) declaratory or injunctive relief is appropriate for the entire class
c. FACTORS TO CONSIDER
1) desirability of having the entire litigation in this court
2) extent and nature of litigation on the same subject
3) interest of the individual blah blah blah
5. Mootness: if a claim by one of the plaintiffs becomes moot, the entire class action does not necessarily become moot
6. Constitutional Considerations – ADEQUACY (Hansberry v. Lee)
a. representation: can a party be bound by litigation to which he is not a party?
b. jurisdiction: does Due Process require certain procedures within the class action in order for it be a valid adjudication of the absentee’s rights
7. ADEQUACY OF REPRESENTATION
a. in general, we are concerned with adequacy of representation because of potential Due Process violations
b. if a party is adequately represented in the class action, that party will be bound by the judgment à res judicata
c. if this is a “common question” type of class action, under 23(b)(3) class members may opt out
d. HOWEVER, when representation is inadequate, the judgment will NOT bind the parties
e. FACTORS TO CONSIDER
8. JURISDICTION
a. 23(c)(1) – a court must certify a class action in order to proceed
1) usually must be done as soon as practical
2) certification is not necessarily final
3) certification can be amended/altered at anytime
b. 23(f) – court of appeals
1) have discretion to permit appeal from dist. court
2) standard of review = abuse of discretion
3) interlocutory appeals are allowed
4) must be within 10 days after the entry of the order
5) but class action suit does not stop à must continue
c. FACTORS TO CONSIDER ON APPEAL
1) if there is a counterclaim by the D will it compel other Ps to come forward with individual defenses
2) if original P is liable under the counterclaim, will the penalties flowing from the counterclaim far exceed the potential awards to the P?
3) will the court have to make too multiple fact determinations
9. DUE PROCESS PROTECTIONS
a. in general, the state has the power to exercise jdxn over absent Ps in a class action
b. Ps do not have to meet the requirement of minimum contacts with the state (International Shoe)
c. ability to opt-out is sufficient for due process à don’t need to opt-in
d. NOTICE
1) Rule 23(b)(3)
a) must have notice
b) must have opportunity to be heard
c) notice must be reasonably calculated under the circumstances to … a
d) the class representatives bear the cost of giving notice
e) if class members can be identified
(1) must be notified
(2) notice by mail is OK
f) if class members cannot be identified à publication is a valid method of notice (Phillips Petroleum)
2) Rule 23(c)
a) must have an opt out provision
b) if you don’t opt out, you will be bound by the judgment
c) if able to participate in trial, cannot opt out
d) EXCEPTIONS
(1) 23(b)(2) injunctive relief for a D class (which is more likely to be cohesive)
(2) 23(b)(1) and (2) 0 notice is discretionary
10. SETTLEMENT CLASS
a. Rule 23(e) -- Dismissal or Compromise
1) settlements must be approved by the court
2) all the members of the class must be notified of the settlement
b. Settlement must be fair, adequate, and reasonable
c. Court has broad discretion in certifying the settlement
d. BUT court cannot alter the offer
e. FACTORS TO COURT MUST CONSIDER
1) strength of claims
2) benefits of the settlement
3) who negotiated the settlement
4) how did the negotiations proceed
f. settlements are favored
11. Fees
a. Common Fund Doctrine
1) P whose efforts create a fund is entitled to have those who benefit contribute to his lawyer’s fee
2) funds go to a common pool
3) usually a simple percentage fee is sufficient (or a contingent fee)
4) OR can calculate based on an hourly rate and adjust for factors (such as duplicative efforts, extra work done because of nature of class action)
b. BENEFITS
1) empowerment goal
a) some P will not have the means to hire an atty
b) the small amounts are not necessarily worth recovering
2) efficiency – class actions tend to settle quickly
a) P has incentives to _____
b) D doesn’t want the bad publicity
3) consistency of jdmt
4) award spreading devices – if we only allowed individual suits, the first members of the class who sue will get most of the $$. there might be an anomalous award that is huge and quickly depletes the money in the Ds deep pockets
c. DISADVANTAGES
1) class actions are COSTLY to the representatives
2) class actions may become unmanageable
3) all members of the class are bound by the judgment
a) sale of res judicata at a bargain basement price
b) some members may be more willing to settle at lower awards
4) atty may lose control of situation because it is difficult to represent the class
Discovery
1. Purpose
a. formal fact-gathering method
b. produces information about the merits of the lawsuit
c. permits parties to make informed decisions about their case
d. facilitates settlement or summary judgment
e. allows parties to shape legal theory and ultimately shape the course of trial if it comes to that
2. Disadvantages
a. costly
b. enables one party with superior financial means to wear down the other
c. or they could both wear each other down
3. Rules Discovery – Features
a. lawyer driven – court is usually not involved unless disputes arise
b. discovery rules are flexible
c. court has discretion in regulating discovery
1) std. of review = abuse of discretion
2) discovery orders can be appealed
4. Limits of Discovery – any matter not privileged which is relevant is subject to discovery
a. Relevance – 26(b)(1)
1) information that will prove or disprove something that matters according to the applicable substantive law OR
2) reasonably calculated to lead to the discovery of admissible evidence
b. Limitations – 26(b)(2)
1) court may limit frequency or extent of discovery if
a) discovery is unreasonable à excessive or duplicative
b) information can be obtained from another source without undue burden
2) burden or cost outweighs the likely benefits
a) privacy concerns
b) needs of the case
c) amount in controvery
d) parties’ resources
e) importance of the proposed discovery in resolving issues
c. Privilege – can be expressly waived
1) information may be highly relevant but still not be discoverable
2) some privileged relationships
a) atty-client
b) doctor-patient
c) confessor-penitent
d) husband-wife
3) 5th amendment privilege against self-incrimination
4) EXCEPTION: party may request a copy of her previously made statement
5. Required Disclosures – Rule 26(b)
a. name + address + telephone number of all individual who are likely to have discoverable information
b. copy or description of all documents, data compilation, etc. that are relevant to disputed facts
c. computation of damages
d. insurance information
6. Privacy Concerns
a. party must expressly request a protective order
b. request must describe the materials to be protected
c. Rule 26 – Protective Orders
1) judge may enter “any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense
2) a party is entitled to request a protective order
a) to preclude inquiry into areas that are clearly outside the scope of appropriate discovery
3) party seeking protective order must show good cause for requesting it
a) to establish good cause à submit facts that are particular and specific
b) no stereotyped facts OR conclusory statement
4) BUT KEEP IN MIND – even though there is a protective order, a trial judge can take a look at protected material from another to determine if it is discoverable in the current trial
7. Work Product Doctrine (Rule 26(b)(3))
a. documents prepared in anticipation of litigation or for trial
b. are subject to discovery only if
1) party seeking discovery has SUBSTANTIAL need of the materials AND
2) party is unable to obtain that material (or a substantial equivalent) without undue hardship
c. court shall protect (NO DISCLOSURE) an attorney’s
1) mental impressions
2) conclusions
3) opinions
4) legal theories
d. also extends to insurance agents, consultants, etc.
1) want to promote a full investigation
2) would be inefficient if atty, whose work product is immune from discovery, had to do all the work
e. EXCEPTION: a party may obtain a copy of her own statement even though that statement is protected
f. some states expand this exception to nonparties to prevent embarrassment
g. Policy considerations
1) demoralizing to the atty if opposing counsel had access to work product
2) if mental impressions and other nontangible information is protected à extend to written/tangible materials or else attys will not write anything down
3) legal theories + opinions + mental impression à don’t want opposing counsel to take a wait and see approach then at the last minute take advantage of opposing counsels work
8. Expert Information
a. testifying experts
1) info discoverable
2) opposing party must have some way of ascertaining what the other side will say
3) must be based on nature of his training and within his expertise
b. nontestifying experts
1) retained in anticipation of litigation but not expected to testify
2) generally immune from discovery à opinion/information is not discoverable
3) EXCEPT à party makes a showing of
a) “exceptional circumstances”
b) impracticable to obtain the facts/opinions by other means
(1) e.g. there is a psychiatrist’s examination of her patient the day after she was fired.; there was a psychological exam of the patient during discovery – 6 months later à patient could argue it is privileged info from a nontestifying witness… opposing counsel should claim that information gathered in first exam is HIGHLY relevant and so uniquely time sensitive because you cannot recreate the same psychological conditions 6 months later.
(2) no reasonable alternative means of obtaining same or similar evidence
9. Physical/Mental Examination
a. mental/physical condition is in controversy
b. court may order an examination
c. requirements
1) must show good cause
2) give notice to the person and the parties
3) shall specify
a) time
b) place
c) manner of exam
d) conditions
e) scope of exam
f) identify examiner
d. a party may request a copy of the report of her own examination
e. when party requests the report à she must produce copies of her own doctor’s reports relating the an examination of the same condition
f. KEEP IN MIND: we’re also concerned with the scope of examination here
1) if a specific condition is in controversy, the examination can only be used to prove or disprove the existence of that condition
2) e.g. if a bus driver’s eyesight is called into question à opposing party cannot ask the court for an psychological exam
10. Discovery Abuses and Sanctions (Rules 26 and 37)
a. Types of abuses
1) stonewalling
2) blitzing
3) other party has superior financial resources and can wear the other down
b. Rule 26
1) imposes and affirmative duty to engage in pretrial discovery
2) must be in a responsible manner
3) must be consistent with the spirit and purpose of Rule 26
4) this is a signing requirement like Rule 11
a) curbs discovery abuse because it imposes sanctions
b) encourages attys to stop and think à is request reasonable
5) Rule 26(g)(3) – if no substantial justification
a) court can grant motion OR
b) court can sua sponte
c) impose an appropriate sanction
c. Rule 37
1) a party can moved to compel disclosure/discovery
2) when opposing party
a) fails to provide discovery
b) provides incomplete discovery
3) party must have made a good faith effort to obtain the info
4) if court grants motion and gives order à ct. may grant moving party reasonable expenses including atty’s fees
5) failure to comply with an order à sanctions
a) court may order the matter to be treated as admitted OR
b) court may prohibit opposing party from supporting or opposing the claim/defense OR
c) ct. can strike the pleadings
(1) stay or dismiss the action
(2) render a default judgment OR
d) hold opposing party in contempt
6) before dismissing, court should consider
a) prejudice imposed on the moving party because opposing party hindered discovery
b) availability of lesser sanctions
7) standard of review = abuse of discretion
Pretrial
1. Default and Default Judgments – Rule 55
a. party fails to plead
1) clerk shall enter default
2) judge sets damages OR jury trial for damages
b. if no notice OR improper notice to defaulting party
1) default judgment will be vacated
2) meritorious defense not needed to set aside default after improper service
2. Dismissal
a. Involuntary – Rule 41(b) – to keep P from going to sleep at the litigation switch
1) failure to prosecute OR
2) failure to comply with rules or any court order
3) D may move for dismissal of action or any claim
4) court may dismiss sua sponte
5) operates as an adjudication on the merits
6) EXCEPT for improper venue, lack of jdxn, improper service of process
b. Voluntary – Rule 41(a)
1) P may dismiss axn without prejudice
2) BEFORE D files an answer or a motion for summary jdmt
3) OR if parties stipulate
c. 2 dismissal rule – 2d time is with prejudice
d. P must pay for the costs incurred from a previously dismissed action if she brings the same suit again
3. NEGOTIATIONS AND SETTLEMENT
a. Contracting to dismiss
1) settlements are essentially K’s (release of claims)
2) in general, the court does not need to approve settlements
3) EXCEPTIONS
a) class action settlements (Matsushita)
(1) if a state class action is settled + settlement includes release of ALL claims à look to preclusion rule in the state à if a similar federal claim is brought in state court (keep in mind this can be done unless the federal gov’t expressly reserves jurisdiction to federal courts) à state settlement will bar federal suit
b) cases involving minors
b. Contracting for Confidentiality
1) putting settlements under seal
2) usually obtained by order of the court
3) modification of a confidentiality agreement à can only be denied if it would prejudice substantial rights of the party opposing midification
4) POLICY
a) public interest favors judicial policies that promote completion of litigation à allowing confidential settlement gives incentives for resolving the disputes
b) protect the finality of prior suits
c) protect the secrecy of settlements when desired by the settling parties
5) courts must carefully police confidential settlements especially if
a) concealment of legitimate public concern
b) as more individuals suffer identical harms from a similar conduct
c) condones buying the silence of a witness
c. Contracting for a judgment
1) parties are entitled to stipulated a reversal to effectuate a settlement absent a showing of extraordinary circumstances
a) encourages settlement
(1) the earlier the better
(2) even if after judgment is rendered, still reduces expenses involved in appeals
b) fairness to parties – courts should look not at the abstract role of judiciary but should look its concrete role
(1) practical purpose to provide a forum for litigants who have real disputes and not just legal abstractions
(2) litigation exacts a heavy price on litigants
(a) not just financial costs to parties
(b) there are also psychological and emotional costs
c) Reversal only if a public interest is adversely affected
(1) a specific, well-established and compelling public interest
d) US Bancorp (FEDERAL)
(1) mootness by reason of settlement does not justify a vacatur of a judgment under review
(a) vacatur achieved in this manner may still be allowed
(b) have to look at the public’s interest
i. will it be better served through an orderly procedure?
ii. if not, then equitable relief should be granted à vacatur allowed
(2) Rationale
(a) availability of vacatur may not deter settlement in pretrial
(b) some litigants may adopt a wait and see attitude and gamble rather than settle if an unfavorable outcome can be erased
(c) settlement at pretrial or the trial court level can achieve greater judicial economy
d. Mediation and Coercion
1) summary jury trials
a) 8 members
b) lawyers present their case in abbreviated fashion
c) jury is charged
d) verdict is not binding
e) Rationale: encourage a realistic view of the case, and if it’s a loser gives incentive to settle
2) Lockhart v. Patel
a) can a court compel parties to attend a settlement conference and sanction them if they fail to attend? YES
b) the authority of a federal court to order attendance of parties to settlement conferences and to impose sanctions is WELL ESTABLISHED
c) Rationale
(1) a settlement conference without necessary parties is not product
(2) a settlement conference without person who have authority to negotiate is not productive either
(3) settlements are FAVORED
d) but if all parties are present and individuals have authority to negotiate but court still is not happy with a party’s position à can’t force party to settle
e) e.g. if adjuster had said “you honor, I have the authority to negotiate but it is my opinion that this case is not worth more than $150K” (of course, not freakin’ likely since small jury brought back a verdict of $200K)
f) Sanctions
(1) can make the appropriate oral findings
(2) can strike pleadings and declare D in default
(3) can order damages or set a hearing to show cause why party should not be punished for criminal contempt of court