CIVIL PROCEDURE YEAZELL SPRING 2008

FINANCING
- Civil Litigation tracks economic development, and population growth.
- Damage bell curve ~ $40k, but the small end of the tail (huge awards) accounts for a lot of the
$ involved.

Ps win
Median Damages

K
65% - mostly bench
$45K

Tort
50% - mostly jury
$37K

- Punitives: 14th amend. question. More than 9x compensatory dmgs = probably grossly
excessive.
- Philip Morris 199: Cant get punitives based on harm D caused to others. But harm to others
adds to "reprehensibility.
- Every jury verdict for punitives raises an issue potentially appealable to the Supreme Court.
(14th amendment).
4 Options for paying for a lawsuit: (U.S. uses a hybrid system)
1.
2.

Each Party pays own fee: Hourly rate (most commercial litigation financed this way)
Cost Sharing: Insurance, Contingency fee (winning clients pay costs for their case as well
as losing cases)
1.
Loser pays winner's fees Many 1-way fee shifting statutes - prevalent in civil rights and
"public" litigation
4.
Someone else pays: Legal aid (govt and private), Pro Bono, Affinity Groups (finance to
further group goals)
Ps left out
- Divorce (cant settle, legal aid wont help
w/out abuse)
- OR: damages too low for 2, outside 3-4 above.
- Partial solution: Class Action

Ds left out
- Divorce defendants, Tenants in Possession
- Cant get 4: LA & PB are too busy, and not
impact case
- certain categories outside LA, or

How can D avoid paying fees?

1.

Offer all Ps want except atty's fee. Evans v Jeff D. CB 222. Disabled kids. Dilemma
because they expected to get attys fees when they took the case conflict between helping
this client, and future clients.
2.
Change attacked law. Buckhannon CB 226. Suit was catalyst, but still not prevailing
party and got no fees.
- this only applies to FEDERAL STATUTES. State can interpret their state statutes
differently.
What can P do to avoid this?

Jeff D: make clients agree not to settle w/out attys fees. Like conting. fees: clients get
less so atty can help others.
2.
Buckhannon: Add a damage claim in addition to the injunctive relief they want then will
be prevailing party.
3.
Fee-shifting OK if final judgment, including ordered consent decrees b/c alteration of legal
rltship of parties
1.

PRELIMINARY INJUNCTION / TEMPORARY RELIEF ORDER --- See Rule 65

The Standard Test

The Alternative -- Inglis v ITT Baking CB 229

Irreparable Harm to

1. possible irreparable harm to AND will probably win on

the merits...OR

will probably win on the merits 2. has a fair chance of success on the merits... AND...
Preliminary injunction won't
harm more than it helps

2. 's claim raises "serious" issues on merits and harmed

more by refusing injunction than harmed by granting
it...AND

Injunction in public interest

2. Injunction in public interest

Fuentes v Shevin CB 233 - who has right to stove while determining who has right to possess it
permanently?
- Need at least notice and an opportunity for a hearing before your stuff is repossessed (only if
done by state).

Ex Parte T.R.O.

Temporary Relief
Order

Preliminary Injunction

Final Injunction

- only if prevents irrep.

harm

Notice

Notice

Full trial

Brief adversary
hearing

Hearing (but perhaps

on incomplete
discovery)

Indefinite duration

No notice or hearing
required
Not appealable because
very short duration
(earliest possible
hearing date, with
hearing on 2 days
notice if adversary
requestsRule 65(b))

Short duration
(10 days, with
possible extension for
good cause)
Not appealable
because very short
duration?

Lasts until trial on final

injunctive relief
Can appeal:
Interlocutory review
available under 28
U.S.C. 1292(a).

Can Appeal:
Review available
either under 1291 (if
judgment final) or
1292 (if other matters
remain to be
determined).

PLEADING --- Incompatible Goals:

1.
2.

Screen out weak cases cheaply need to learn as much as possible at beginning
Allow cases that will win if they can go to discovery need to eliminate technical barriers

Common Law

Chancery

Today (combined the old systems)

Triers of
Fact

Juries and Judges

Judge, no Jury

Sometimes Judge, sometimes Judge and

Jury

Pleadings

Formulaic

Extremely detailed and No formulas but few facts

factual

Witnesses

Live testimony, no
subpoenas or
discovery

Subpoenas, some
discovery, no live
testimony

Extensive pretrial discovery, subpoenas,

and live witnesses

Party
Structure

Narrow

Open

Broad party structure

Appeal

Only after Judgment

Free Interlocutory
Appeals

Appeal only after judgment - w/ interloc.

appeal from prelim. injunctions (& other
exceptions)

Antitrust Conspiracy: to survive 12b6, need some evidence that ordinary competitors would
not do what Ds did.
- Bell Atlantic 260: affect Rule 8a2? Need facts above speculation in any claim? or when
discovery would be expensive?
Classical statement, which this contradicts: a complaint should not be 12b6ed unless it appears
beyond doubt that the plaintiff can prove no set of facts in support of his claim which would
entitle him to relief. (Conley v Gibson, 1957)
Fraud: must state with particularity what the lie is Rule 9b. (Zurich Ins. Co. CB 264). Said
doc lied about flood claim, but needed to say what the lie was: no flood? Or inflated flood
damages? Or flood occurred while not covered?
- 9B is there to keep fraud out of K claims, so you cant get punitive on a K claim. Dont want to
discourage Ks.
- P defense to a 12b6: Use sample forms in FRCP appendix (automatically OK: rule 84). (No
form for antitrust though).
Affirmative Defenses (non-exhaustive list: 8c): whether = aff. def., or P must prove its not
there, decides 50/50 case.
Rule 11: Rule 11 does NOT impose a duty to amend, as long as what you did was objectively
reasonable at the time.
- Does not apply to discovery. (11d).
- Can only be sanctioned for B.S. documents submitted to the court not for general bad
behavior. (Barbie case, 276).
RULE 12: pre-answer motions: affect timing. Answer in 20 (or 60/90 if waive svc) but ans
in 10 AFTER pre-ans decided
Motio
n
12(b)
(1)
12(b)
(2)
12(b)
(3)
12(b)
(4)
12(b)

What

When

Waive
d?
no

subject matter jurisdiction

at any time, by parties/judge

personal jurisdiction

yes

venue

pre-answer/answer (if you didnt make a

preanswer motion)
pre-answer/answer

form of process

preanswer/answer

yes

method of service

preanswer/answer

yes

yes

(5)
12(b)
failure to state a claim upon which
pre-answer, or in pleadings, or by motion no
(6)
relief can be granted
12(b)
failure to join a party under Rule 19
anytime
no
(7)
*only get one bundle of pre-answer motions, though, cannot raise them in a string
Amendments rule 15: leave shall be freely given when justice so requires
1) no bad faith, 2) prejudice to if denied outweighs prejudice to if allowed, 3) no undue delay
--- Aquaslide 292
Relating back Rule 15c:
the claim/defense arises out of the same conduct/transaction/occurrence
(Moore - 296) couldnt switch claim against doc from lack o consent, to neg. different
time, and facts involved.
OK if D on notice, discov. at early stage-(Bonerb- 298) fell on court, amended to claim
rehab / counseling was neg.
- True D knew/should have known that they should have been the one sued? (same ins. co Zielinski v. Phil. Piers -284) most important, what stage of litigation is it? discovery not yet
expired? about UNFAIR SURPRISE to opponent.

DISCOVERY
Rules often called for tiered approach to compliance w/ discovery:
1.
2.
3.
4.

Initial request or duty

"Meet and confer" requirement before seeking judicial intervention
Rule 37 motion to compel response
If no response to (or failure to comply with) 37 motion, sanctions
(Some "self-enforcing" sanctions - e.g. initial disclosures)

Contemporary Discovery Regime is: Not analagous to another country, designed to proceed w/
minimal supervision, and prepare for trial (though often precedes settlement). IS NOT an
adaptation of common law procedure.

Is it relevant, or reasonably calculated to lead to relevant information?

- May be relevant to establish "pretext: Where theres smoke, theres fire...
- Davis 302 discrimination case. Ps want to know if uninvolved third parties complained about
discrimination.
- Not relevant, if not related to reason given by govt for doing something. - Steffan v Cheney CB
303
- Ds wanted to know if Steffan had engaged in gay conduct, but he was discharged for saying he
was gay, not his conduct.

Witnesses themselves can get records of what they themselves said and give it to anybody they
want.
Is it protected work product? Hickman 320: Ps want notes the Tugboat's lawyer made after
interviewing survivors.
- If atty was the only one who knew who these witnesses were, he would have to release the
names.
- If they had died and the Ps had no opportunity to depose them, they would be able to discover
atty's notes.
- Identity of ordinary witness exists before litigation, so it's not a "work product."
- Lawyer's notes assessing the witness (looks good, will be a good/bad witness) IS work product.
SPOLIATION - Silvestri v GM 305: Case dismissed. P had access, but did not invite GM to
check when his experts did.
Later, car destroyed. BUT, was not Ps car. He didnt have control over it. Seems harsh,
couldve just barred Ps experts.
Zubulake v UBS CB 335 - P is trying to get an "adverse inference" instruction for destroyed
evidence. (Tapes).
- Doesnt, because Ds were merely negligent, and P did not demonstrate there was relevant
information on the tapes.
- Court got D's mental state wrong. They destroyed tapes BEFORE routine date. Seems more
willful than negligent.
DISCOVERY PROBLEMS:
- Dont have to disclose evidence if will be used SOLELY for impeachment. If also used to prove P
not hurt, must disclose.
- Even if solely for impeachment, if related to incident and P requests all related docs under
Rule 34, must disclose.
- If fail to disclose, and try to bring it in later, Judge can either deny, or let it in and tell jury you
violated court rules.
- If A gives B all his medical bills, but then gets a new relevant one, needs to file a supplemental
response.
- If A doesnt supplement, & wants it later, Judge should hold hearing to determine if A's failure
was harmless. (Rule 37).
- Max of 25 interrogatory questions, and only ask the party to suit. Can get more w/ permission
under Rule 26(b)(2)(A).
- You dont have to admit (under rule 36) questionable stuff someone told you. Only have to
admit your own knowledge.
- If admit under Rule 36, DOES NOT mean it is admitted in later suit. Want to clear unimportant
stuff w/out penalties.
- If witness asked bad question in depo, can object, recess for protective order (if pattern), or try
to block admission...
...but, CANNOT say dont answer unless it is privileged information.
DISCOVERY Experts
If testifying, have to
disclose:

Maybe
testifying:

Not testifying

Discoverable?

Expert / Doc
retained in
anticipation of
litigation

Expert / Doc who

treated
Experts/Docs
report

Identity, qualifications,
publications,
compensation, what
cases testified in,
statement of opinions
he will express and
basis for them
name, address
(but not bio or report)

Same

Nothing, if youre
sure you wont use
him

Same

Same (only if
supports claim, and
may use him)
if supports claim and might use, or if want to use for
calculation of damages

Can depose if
testifying or if
privilege is waived.
Otherwise, need
exceptional
circumstances
Can depose if
testifying, or waived
doc/client privilege
discoverable

- Report by non-testifying expert witness DISCOVERABLE, because report was only one available
of P's mental state shortly after P was terminated. Thompson v Haskell Co. CB 326. Unclear
whether expert was hired for litigation or not.
- Report by non testifying expert witness NOT DISCOVERABLE when D could have hired own
expert, and was trying to get a free ride off of Ps expert. Chiquita International v Bolero Reefer
CB 327.
- Court more likely to grant protective orders (26(c)) for third parties, than parties to the suit.
Stalnaker v Kmart CB 329.

RESOLUTION WITHOUT TRIAL

1.

Default Judgment (but only if D got notice Peralta 344)

2.

Voluntary dismissal (can only do this once Rule 41a)

3.

Arbitration + Federal Arbitration Act: enforceable in all states. (Polar opposite of

mediation NOT negotiation).
- Only way to attack arbitration Ks is with general K tools. How does state define
unconscionability?
- Can be faster and cheaper than litigation, but not always.

4.

Settlement (need a K because accord & satisfaction = affirmative defense). Judge can
order settlement conference under Rule 16c2I, but Judge DOES NOT have to approve
settlements (there are exceptions.)

Matsushita Elec. Co. v Epstein 358 - State court can settle federal claims, in
addition to state claims...
...IF the state court thought it was settling the federal claims, and would give preclusive
effect to those claims.
Confidentiality Agreements - Two versions:
- Version 1: Susan sues Growco. Jane cannot say anything to Susan.
- Version 2: Susan's lawyer deposes Jane. Jane cannot respond.
- Courts can only enforce if the public interest (need for testimony in future cases) is not
harmed.

- Compromise in Kalinauskas v Wong CB 362: can be deposed, but cannot talk about the
details of the settlement.
5.

Summary Judgment
- Whoever has the burden of proof at trial has the burden of proof to survive SJ. (Celotex).
- AND: need adequate time for discovery. Cannot be "railroaded" by a premature motion

for SJ.
- Need evidence that could be produced at trial: Affidavit or Deposition. Not just a letter.
Bias v Advantage CB 387: D didnt get $1 milllion life insurance as promised and Bias
died of cocaine overdose.
D's theory: Breached the K, but no damages. (Would have been impossible to get the
insurance.)
SJ for D because P did not have specific evidence to counter testimony of D's witnesses, and
because P did not try to impeach the witnesses, the witnesses' testimony was unrefuted.
(Only after Celotex).
5. Dismissal
Sanders v Union Pacific Railroad CB 392: Judge dismissed case because Ps atty failed to
comply with deadlines.
- remanded to new judge to determine a more appropriate remedy (too harsh, and Judge
was a jerk)
- Sanders has gotten a tactical advantage by seeing the other sides' documents before he
has to submit his own.
McKey v Fairbairn CB 395: Case dismissed, Atty didnt know about proper claim (statute),
no chance to amend.
- Judge should not help attys. Would affect the adversarial system, create bias issues,
reward lazy lawyering.
Different from Aquaslide (where justice was on the side of allowing amendment) because...
1. Aquaslide had done due diligence, Littlejohn's atty did not
2. The trial in aquaslide would have been absurd if it had gone forward (defend a product
they didnt make?)
2. Better to make a P bear the cost of injury (it's at least partly her fault for falling, after
all)
THE TRIER AND THE TRIAL
Directed Verdict Would never happen in a perfect world, because such cases would not
survive summary judgment.
Right to jury trial: 7th amend. never incorporated into 14th, so states not required to have
civil jury trials, but still do it.
- The question is whether a claim of X seeking X relief would have been tried to a jury in
1791.
Specific

Substitutiona
ry

Specific

Substitutionar
y

Jury:
(legal
remedies)

Replevin
Ejectment
Mandamus
Habeus
Corpus

Damages

Judge:
(equitable
remedies)

Injunction
Reformation
Rescission
Quiet Title

Clean-up
(Damages)
Constructive
Trust

- If different claims split between Judge and Jury, whoever "finds the facts" first binds the later
decision-makers.
- Jury should go first, and their fact-finding should bind the judge. (SC in beacon v westover).
Amoco Oil co. v Torcomian CB 414 --- ONLY FOR FEDERAL COURT --- state rules are
different.
What if Ps sue for injunction, and D counterclaims for damages? --- "Legal" counter-claims go
to a jury.
Jury Selection: Goal is fairness. DO NOT want jurors who know about the case (whod be good
medieval jurors).
1.
2.

Must challenge jury selection process BEFORE the jury is selected.

Voir Dire gets to un-cross-section the community, after the jury pool tried to get a
cross-section.
3. Move to strike for cause
- juror DID NOT say that she WILL or CAN be fair. (Judge didn't ask). Should have been
struck. (Thompson 428)
4. Use peremptory challenge for jurors you don't like, who you couldn't strike for cause
- Can challenge these w/ Batson challenge, IF there is a pattern (race (or gender?)). ONE
is not enough.
- Attys can survive challenge, unless evidence suggests their reason is a pretext.
Judge Recusal / Attorney Challenge (1 in California) : Courts dont want any public
appearance or suspicion of bias.
- Gertner recused for "commenting publicly on the merits" even though the appellate court didnt
think her biased. (424).
Judge Hott: intemperate, dull, terrible. Can you challenge?
Not unless you are in California.
Judge Wize: good judge but owns shares of the parent of the subsidiary I'm representing.
Must be recused. Cannot waive this even if the parties agree to it.
How to determine when Recusal Necessary: 28 USC 455
- History of representing one side in similar cases is not grounds, unless worked w/ an atty who at
time worked on case.

JML / NEW TRIAL

Judgments as a matter of law: Rule 50
Only on motion (must do first before jury
verdict)
Can do 2d motion after jury verdict, if did
1st before
Dont want to consider for 1st time,
knowing verdict
Focus on adequacy of evidence
Replace jurys verdict with judges
judgment
Results in final judgment
immediately appealable
Appropriate Reasons for New Trial
- Wrong instructions
- Juror bribed
- Erroneously admitted or excluded
evidence
- Verdict is against the great weight of the
evidence

New Trial: Rule 59

On motion OR judges initiative
Before or after jury verdict (w/in 10
days)
Evidentiary adequacy OR process
Sends case to new jury
No final judgment if granted
Unappealable
(unless conditional as part of j.n.o.v
order)

Inappropriate Reasons for New Trial

- Jury misunderstood instructions (Peterson CB 447)
- One juror intimidated or threatened another
- Jury agreed to majority position, instead of true
unanimity
(not that bad, because if survived SJ could go
either way)
- Judge disagrees w/ jury, when its a credibility
issue (Lind, 443)

FORMER ADJUDICATION Three Theories Courts decide this as a matter of law w/ theory of
their jurisdiction
1. Same transaction or occurrence" Federal Courts. Focuses on what happened that
created lawsuit?
2. "Common nucleus of operative fact" - Focuses more on facts as they emerged in litigation?
3. "Primary Right:" California - different--maybe--from transaction or occurrence, but not clear
how.
- All exist somewhere between two polar models: Only the exact claim is precluded, or any
possible claim is precluded.
SCOPE OF PRECLUSION: Defined by the law of the court rendering the first judgment.
--- (Article IV of constitution + 28 USC 1738: Federal courts have to pay attention to state
judgments)
So, what if the first judgment was rendered in a federal court, under diversity
jurisdiction, applying State law?
Semtek: No preclusion unless the state court would have precluded the second claim. Only
applies where...
1. first claim was brought in fed court under diversity jurisdiction AND...
2. preclusion rule of state where the fed district court sat differs from the rule that a
federal court would use.

CLAIM PRECLUSION CL rule. NOT in rule 8. Harshness balanced by friendly rules for
amending pleadings.
1.
2.

same parties, unless in privity or virtual representation,

same transaction or occurrence or the same evidence would be used to prove
both claims
3.
Claim existed at time of first lawsuit
4.
had a fair OPPORTUNITY to litigate (but failed to do so) - Frier v City of Vandalia
484.
5.
judgment on the merits
6.
compulsory counterclaims: Cant raise a claim that would have been a defense in a
previous suit. Rule 13(a).
- FRCP rule only applies to pleadings - (Martino v. McDonalds 490 no pleading in suit 1:
consent judgment).
- common law doctrine of compulsory counterclaims covers Martinos antitrust claim. (So
still precluded).
- ?: Will allowing suit #2 so undermine the integrity of the first judgment that it shouldnt
be allowed? (Martino).
ISSUE PRECLUSION: Cant relitigate issue if:
1.
2.

SAME legal or factual issue in both cases

also procedurally (burden of proof, discovery, cross-examination) - (terms context
am I a CA resident?)

3.

ACTUALLY LITIGATED and determined - if issue could have been raised in first case
but wasnt, no preclusion
- Searle bros. not precluded from going after mom, even though they testified in suit 1.
493.
- Mom should have avoided this by seeking a declaratory judgment before the first suit,
then sued ex and bros.
- Kovach SHOULD NOT BE PRECLUDED from trying to refund traffic ticket, because wasnt
LITIGATED. 521.
- stipulation IS NOT actually litigating. - (Yeazell, re: Hansberry v Lee CB 593).
4.
to a VALID and FINAL JUDGMENT
- Includes 12b6 dismissal (assuming there was at least one opportunity to amend).
- CA supposedly does not preclude 12b6d claims, but havent reaffirmed this since 1952 so
not trustworthy.
- look to states preclusion law to see if a judgment rendered by a court lacking s.m.
jurisdiction has preclusive effect
- (Gargallo 500: Ohio court dismissed federal claim, not preclusive by OH law, so not
precluded from federal ct.).
5.

ESSENTIAL to the Judgment -- if the case didnt turn on the finding, then no preclusion
- If a verdict could have been reached by multiple legal/factual conclusions, then they dont
preclude. Parks 504. - BUT, any claims addressed and affirmed by appellate court will be
precluded. (In most courts).

6.

Party had adequate incentive and opportunity to litigate issue (if low stakes, may not have
litigated to fullest extent)

Parklane Rule CB 510: Abandoned Rule of Mutuality after lost suit #1, litigating neg.
precluded when new P sued.
Can relitigate issue as a D if:
-- stakes in first case were lower than in second case
-- discovery (or other procedure) was not available in first case
-- there are prior inconsistent judgments: State Farm Fire & Casualty Co. 615;
-- P could have easily joined first lawsuit, but decided to wait and see how it turned out
Can relitigate issue as a P if:
-- not a party to the first lawsuit

REOPENING JUDGMENTS Rule 60b: More likely if default judgment. Can be reopened if within
a year. If too late...
... use independent action under 60(d): only if prevents grave miscarriage of justice. (Bad
faith). U.S. v Beggerly 529.
COLLATERAL ATTACK
Suit #2 to collect: Can't contest #1s jurisdiction if it was FULLY and FAIRLY LITIGATED and
FINALLY DECIDED. Durfee 525.
PERSONAL JURISDICTION some places are automatically home base...

residence or domicile for individuals,

state of incorporation OR primary state of business for a corporation.

Pennoyer v Neff CB 47 --- IS DEFENDANT HERE?

Rule (later altered): only have jurisdiction over people or property within borders at
time the suit commences.
How a court can have personal jurisdiction, in Pennoyer land:

Over Property: Constructive notice, IF attach the property at the outset of the lawsuit.
Over Person: Lives in the state, and is personally served.
Or, if suit for divorce, and one spouse lives in the state.
Or, if state law requires those Contracting w/ in-state citizens to appoint an in-state agent
for service of process.
PROCEDURAL STUFF --- HOW TO CHALLENGE JURISDICTION?

1.

Do nothing and wait for a collateral attack when they try to enforce the judgment (easy,
but risky).

2.

Include in your sole pre-answer motion can buy some time to answer (10 days after preanswer).
3.
Include in answer (if you make no pre-answer motions if you made one, 12b2 is waived).
International Shoe Co. v Washington CB 57 --- IS IT FAIR TO DEFENDANT TO HAVE
JURISDICTION HERE?

State of WA sued Int'nat'l Shoe to collect unemployment taxes.

Shoe co. is based in MO, but salesmen are running around in WA. (D claims they are
"independent contractors").
Contracts are formed in MO (salesmen solicit orders, sent to MO for acceptance).
Rule: State can have personal jurisdiction if you satisfy the "minimum contacts" test.
1 Specific jurisdiction: claim arose from minimum contacts = personal jurisdiction
2 General jurisdiction: contacts are so "continuous and systematic" that jurisdiction is
allowed.
1
Otherwise, NO JURISDICTION even if there are significant contacts.
Court's guidance: Must have sufficient minimum contacts so suit does not offend "fair play
and substantial justice." Court suggests that the "inconvenience" of litigating in a distant
forum is relevant.

4(k)(1)A: Federal court has same jurisdictional power as a state court in the state where the
federal court sits.
McGee v International Life CB 62 --- PERSONAL JURISDICTION when K has substantial
connection to state.
California resident had insurance from a Texas company, Company didn't pay and his estate
sued in California.
Insurance Co. had no salespersons, no office and no other business in CA. SC says that is OK
for reason above.
Hanson v Denckla CB 63 --- NO JURIS. despite K because D did not purposely avail itself of
the forum state.

PA woman dealt w/ DE Trustco, moved to FL, D sent notices to FL. Did FL court have
jurisdiction over Trustco?
Only connection was that the person in trust had moved to Florida.
Reasoning: need act by D which "purposely avails" itself of privilege of conducting
activities in the forum state.

Harris v Balk 64: Epstein lends Balk $, Balk lends Harris $, Harris MD, Epstein "attaches" the
debt Harris owes Balk.
OK under Pennoyer to obtain quasi in rem jurisdiction over Balk, because his debtor is in MD.
(Changed in Shaffer).
Shaffer (D) v Heitner (P) CB 65 --- Rule: minimum contacts test applies to in rem
jurisdiction.
- Tried to establish jurisdiction based on the presence of stock in the state. (21 of the
directors had stock there).
- Stock was a contact but not enough to satisfy minimum contacts test.
Reasoning: suits against a person's interest in property, not property itself. Should use in
personam rules.

Property alone can't support jurisdiction if its unrelated to the claim. (no more "quasi in
rem" jurisdiction).
Presence of property in a state affects level of contact
If case is about ownership of that property, then the presence in the state is enough
contact
Judgment in "in rem" cases is limited to value of the property, and factual findings do not
bind D in later cases.

"SPECIFIC JURISDICTION": State has personal jurisdiction of a D only for a PARTICULAR claim.
- MINIMUM CONTACTS?
World Wide Volkswagon CB 72: NY resident bought car in NY. AZ, but got in an accident on
the way, in OK.

Sued NY dealer, regional distributor in OK for design defect. OK DOES NOT have
jurisdiction over them.

A connection counts as a contact ONLY if it results from an act that the D

purposefully directed at the forum state.

Ds didn't know the car was going to OK, so it was not a "purposefully directed"
contact.
Fairness Factors: --- Consider ONLY if there is a "purposeful" contact? (Maybe not, in
Burger King)

Burden on the D --- (primary concern)

Forum's interest in adjudicating the case

P's interest in obtaining "convenient and effective relief"

Interstate judicial system's interest in efficient resolution of controversies

"shared interest of the several states in furthering fundamental substantive social

policies."

Asahi Metal v Superior Court CB 78: Taiwanese D, who was suing a Japanese third-party
defendant in CA.
- No jurisdiction despite contacts, because failed the "fairness factors" from WW Volkswagon.
Did they "purposefully" put goods into the stream of commerce? Have sufficient contact?
Unanswered.
Brennan + 3: mere awareness is enough
Stevens: Sheer volume is enough.
O'Connor + 3: mere awareness is not enough. Need other acts specifically directed at the
forum, for example:
1) Designing the product for that market, 2) Advertising there 3) Establishing "advice
channels" for customers
4) Marketing through distro partner who agreed to be that state's sales agent.
Burger King v Rudzewicz 83 --- More about how "minimum contacts" test applies to Ks
(building on Hanson v Denckla).

MI person obtained a BK franchise, BK = FL corp.

BK sued franchisee in FL, D had never been to FL.

jurisdiction, passes fairness factors.

Merely entering into a K with a resident of the forum is NOT ENOUGH. (Hanson?)
But if K is negotiated and/or to be performed in the forum, then "purposefully availed" the
use of the forum.
Franchisee knew that he was negotiating with a FL corp, K required payment to FL, so
"performance" happened in FL. These activities were "purposefully directed" at a FL
resident.

Holding: FL can exercise

Rule: Can still avoid jurisdiction if K's terms are from "fraud, undue influence, or
overweening bargaining power."
Pavlovich 87 - Website says how to copy DVDs, D knew would hurt industries centered in CA
CA has NO JURISDICTION.
1.
2.
3.

Do business over your website: CAN be sued everywhere.

Interactive website: MAYBE can be sued, depending on specifics / commericalness.
Passive website (just shows info): CANNOT be sued anywhere.

PERSONAL JURISDICTION RULES

Is it automatically Home Base?

residence or domicile for individuals,

state of incorporation OR primary state of business for a corporation.

Claims arising out of the contacts with the state (specific jurisdiction):
-- Quality and nature of in-state activity satisfy minimum contacts? (Intl Shoe)
-- casual, isolated activities not sufficient (Intl Shoe)
-- chose to conduct activity in the state? (McGee)
-- purposefully avail itself of the privilege of conducting activities in the forum state? (WW
VW, Hanson)
-- claim arise out of those activities (property Shaffer, single act McGee)?
-- continuous but limited activity (such as ongoing business relationship)? (Burger King)
-- action purposefully directed toward forum state, aim to affect a particular person in
forum state? (Asahi, Pavlovich, effects test)
-- website interactive, profit from it? (Pavlovich)
-- Fair to D? Traditional notions of fair play and substantial justice? (Intl Shoe, treated as
separate element -- Asahi)
-- enjoys privilege of conducting activities within state, so obligated to answer for in-state
activities? (Intl Shoe)
-- connection with state would reasonably anticipate being hailed into court there,
clear notice? (WW VW)

--Travel distance for D? State interest in being the forum? s interest in obtaining relief?
International ? (Asahi)
Claims unrelated to contacts with the state --- (general jurisdiction):
-- In-state activities so substantial and of such a nature as to justify suit against ? (Intl Shoe)
-- properly served while physically present in state? (Burnham)

CONSENT TO JURISDICTION / CHOICE OF LAW

1.
2.
3.
4.
5.

Consent to Jurisdiction doesnt mean you cant sue them in other places, just means you
consent to be sued there.
Choice of Law Clauses (any court can apply law of any other court)
Forum Selection Clause More restrictive, need some justification...Could pick a neutral
forum...
International Arbitration Clause: (awards enforced abroad - U.N.) need some
justification, might be unfair.
Cognovit (Confession of Judgment) OK w/ sophisticated parties, but probably not w/
adhesion Ks

Natl Equip. Rental v Szukhent --- MI Farmers...

K clause: "designate (a Szukhent employee) as agent (in NY) for the purpose of accepting
service of process." = OK by SC.
Carnival Cruise Lines 100: adhesive forum selection clause on cruise ticket = OK --- (only
applies to ship Ks? Or more?)

Normally, forum selection clauses are governed by state law, not federal, so this case
wouldn't apply.
"fundamentally FAIR" at time K is made = OK (in most states) --- concerned w/
"reasonableness" of the forum.
(Helping Ds lower costs for potential Ps, or just trying to avoid legitimate claims?)
Yeazell: Any lawyer who drafts a K without CONSIDERING clauses like these has committed
malpractice.

GENERAL JURISDICTION MOST Big Ds DON'T CONTEST because it's obvious they'd lose (GM
has business everywhere).
Rule 4(k)2: If you don't have enough contact with any individual state to support general
jurisdiction, but you do a lot of business in America, might be able to have "general jurisdiction"
in a federal court.

Perkins v Benguet Mining Co. 91 - 1 of 2 cases w/ general jurisdiction applied - and was
("jurisdiction by necessity).
- Can sue Philippines Co. in OH, because co. president basically directed the company and did a
lot of work from OH.
Helicol v Hall CB 92 --- Purchases and training in Texas was NOT ENOUGH for general
jurisdiction in Texas.
Burnham v Superior Court CB 94 --- (2 of only 2 cases where general jurisdiction existed- but
questionable here)

D served while in state for 3 days on matter unrelated to claim. Jurisdiction OK, but no
majority justification:
Scalia: presence in state is always enough, don't need to apply minimum contacts test.
(Pennoyer land?)
Brennan: Minimum contacts test applies. Voluntary presence + service in state =
GENERAL JURISDICTION

- Only time this difference of opinion will matter is if D's presence in the state is NOT
VOLUNTARY.

NOTICE
Mullane v Central Hanover Bank & Trust CB 104 (SC, 1950) Modern Application: Mullane
is a flexible standard.

Probably required to conduct at least a cheap search (phone book, internet).

If the amount at stake is really big, might even have to hire a private investigator.
Requirements of due process shift with changes in technology and cost of notice.

- Notified ONLY with back of a newspaper. Thought OK under Pennoyer. (They had the
"property": trusts.)
- BUT: Ps wouldnt notice them being "taken." Also, here the adversary IS the person left to
watch the property.
- Method must be REASONABLY CALCULATED to reach parties, and must afford REASONABLE
TIME to appear.
- Reasonable risk that notice won't reach everyone are acceptable (when others are reached,
and can object).

Downside: Could litigate every "notice" case. So, FRCP established procedures for giving
notice. (Rule 4).
Rule 4 comes in several layers:
1.

Waiver of notice as alternative to notice. (More time to answer & costs of actually serving
you = carrot and stick).
a. Have 30 days to respond to request for waiver.
b. If you waive, get 60/90 days to answer.
c. Dont have to pay costs of actually serving you if you are under 18 or under other
handicap
d. Waiving service doesnt mean you consent to jurisdiction. Can still raise a 12b2.
2. If waiver not obtained, multiple forms of notice provided
a.
As specified by federal statue, international treaty, or state statute
b.
By personal service of private process server
c.
By federal marshal as last resort
3. Special rules for corporations, governments, incompetents, foreign parties.

VENUE / Forum Non Conveniens

Long Arm Statutes = limits on where states have jurisdiction, within the realm of what is
constitutional
28 USC 1404 Can move cases around freely within the federal court system.
Venue Statute: (28 USC 1391) -More elaborate personal jurisdiction rules = less
significance of venue rules.
- Corporation resides in any judicial district that has personal jurisdiction at the time the
action is commenced.
- An alien can be sued in any district (but personal jurisdiction rules severely limit this.)

Piper Aircraft 121: Plane crash in Scotland. Scottish Ps sue U.S. makers in U.S. court. SC:
forum non conveniens.

Fact that Scots law would make it harder for P to recover should not have substantial
weight.
(since Ps choose the best forum for their recovery, if this was true cases would never be
dismissed)
FACTORS for granting forum non conveniens dismissal:
Private factors: (related to individual
litigants)

Public Factors: (related to the court

system)

a.

Where the underlying events

a.

occurred
b.

Where the witnesses and physical

evidence are located
c.
Comparative overall costs of
litigating in the two places
d.
Whether it would be possible to
compell witnesses to testify in the forum
chose by plaintiff
e.
Languages issues
f.
Whether a judgment by the chosen
court would be enforceable in the place
where D's assets are located

Piper Private Factors:

Wreckage and other witnesses
were in Scotland
records of design, manufacture
and testing are in the US.
Easier to join third party
defendants in Scotland

Choice of law questions

(familiarity and ease with law
governing the case)
b.
Policy implications of the case
in the more convenient forum
c.
Backlog in the court chosen
by P
d.
Burden on the court system
and on citizens who may be called
upon to sit on a jury

Piper Public Factors:

Scottish law would govern one defendant,
U.S. law another - would be confusing to a
jury, court inexperienced with Scottish law.
Scotland had the predominant concern with
the dispute. Occurred in their airspace, the
decedents were all Scottish or English.

COLLATERAL ATTACK
D appears

files a 12(b)
(1) motion
and loses

federal
subject
matter
jurisdiction
personal
jurisdiction

D
appears/
files
special
appearan
ce)
appears

files a 12(b)
(2) motion
and loses

fails to raise
issue

federal
subject
matter
jurisdiction

appears

fails to raise
issue

personal
jurisdiction
federal
subject
matter
jurisdiction
personal
jurisdiction

defaults

defaults

D is bound by the decision. Durfee v Duke.

If D wins 12b1 motion, P can refile in state court
D is bound by the decision (if it was fairly and fully litigated &
finally decided).
CAN appeal the jurisdictional ruling after getting a verdict in
the case.
If D wins motion, P cannot refile in state court of state district
court was in.
D may be bound - (Generally there are a couple weird
exceptions)
(138 Chico Co. Drainage District v Baxter State Bank, Kalb v.
Feuerstein)
Better to just appeal?
waived it (Rule 12(h), cannot relitigate issue
D may be bound The issue is not resolved. (138 Chico Co.
Drainage District v Baxter State Bank, Kalb v. Feuerstein)
Better to just appeal?
Can appeal or collaterally attack. If enforcing court finds that
the rendering court had jurisdiction, then they will enforce the
default judgment against you, but if they find that the
rendering court did not have jurisdiction, then theyll dismiss
the prior judgment.

FEDERAL SUBJECT MATTER JURISDICTION - limited by well pleaded complaint rule

and complete diversity
Well-pleaded complaint rule: must present federal question on face of complaint, and must
be NECESSARY to the case.
- based on interpretation of 28 USC 1331, which is created by congress. They could change the
rule if they want to.
- But can't expand to hear any claim that could be heard in a state court - that would be beyond
the constitution.
Louisville & Nashville R.R. v Mottley 132 - Went to SC, and no one raised issue of
jurisdiction. SC raised it themselves.
- Alleging in complaint that D's anticipated defense violated fed. law and constitution DID NOT
present federal question.
Hypo: Sue under a federal question claim that doesnt exist...D could argue doesnt arise
under, or use a 12b6.
Redner v Sanders 139 - U.S. citizen, lives in France. Insufficient proof of CA citizenship, so NO
DIVERSITY JURISDICTION.
Saadeh v. Farouki 145 Citizenship from "permanent resident alien" status defeats diversity
if U.S. citizen sues alien in same state (or vice versa) but DOES NOT allow resident aliens in
different states to sue each other in federal court.
1.

Federal question jurisdiction? (1331, Article III)

0.

2.

is Ps original cause of action (and not an anticipated defense) based on federal

law? (R.R. v Mottley - 132)

Diversity jurisdiction? (1332, Article III) (Rationale: avoid discrimination against outof-staters)
a.

COMPLETE DIVERSITY? (Each P diverse from each D - Strawbridge)

a. Parties must be a citizens of different states
- For 1332a class actions --- (Allapattah - discussed in class)
- NOT for 1332d class actions (just need bare diversity for CAFA national
question rationale)
- Determine citizenship based on factual inquiry into party's intent. (Hawkins v
Masters Farms - 5)
- living abroad, after previously being a citizen of a different state, is not enough.
(Redner - 139)
- No moving: diversity must exist when case filed AND when removal is
attempted. (EM 74).
b. if permanent resident, other party must be a US citizen. (Saadeh v Farouki - 145,
1332(a), Article III)
c. Partnership = citizen where every partner is a citizen (Grupo Dataflux)
d. Corporation = citizen, where...
- it is incorporated, or...
- has its principal place of business (which could be bulk of ops, or nerve
center) (1332(c))

2.

Amount in controversy exceed $75k? (1332):

a. Shouldn't dismiss unless apparent to legal certainty that P can't get this much.
b. Hope for HUGE punitives is not enough. (148-49).
- Can aggregate if a single Ps claim(s) against a single D add up to more than $75,000.
- If 2 Ps, their claims may not be aggregated if they are "separate and distinct."
- if multiple Ps or Ds w/ undivided interest, use value of the total interest.
- if 1332a class action, at least one member of the class needs a claim that exceed
$75,000. (Allapattah)
- if 1332d CAFA class action, total claims must be over $5 million
Compulsory Counterclaim can be heard If P's claim is above $75k.
Permissive Counterclaim must pack its own jurisdictional lunch (be above $75k).
Law is unsettled when claim is under 75k, but counterclaim is for more than 75k.

3 Admiralty Jurisdiction. (Not important for this class).

SUPPLEMENTAL JURISDICTION for joinder: constitl "case or controversy" broader than
particular claim or defense.
1.

Claim is so related to claims in the action that they form part of the same case or
controversy. (1367, Article III)
- do the claims derive from a common nucleus of operative fact? (Gibbs - 152).
Facts must be "common" and "operative." (In Re Ameriquest Mortgage - 153)
Compare facts necessary to prove federal claim, w/ facts necessary to prove state
claim. (Ameriquest).
To be dismissable, resolution of state claim must have NO EFFECT on federal claim.
(Ameriquest).
are claims such that P would normally be expected to try them in one judicial
proceeding? (Gibbs - 152)

2.

BUT if jurisdiction is based on diversity, non-diverse parties cannot be joined and sued in
federal court. (1367 b).

3.

MAY dismiss if...(1367(c))

Raises a novel or complex issue of state law
i.
Main issue of the case is under state law, and has not yet been addressed by
state courts. (Szendry 154)

Substantially predominates over the claim or claims over which the district court
has original jurisdiction
i.
State claims outnumber, and exceed in scope, the federal claims, and have
distinct elements of proof unnecessary for the federal claims. (Szendry-Ramos v.
First Bancorp CB 154)

The district court has dismissed all claims over which it has original jurisdiction, or

Other compelling reasons, in exceptional circumstances (counterclaims messing

up a class action?)

If dismissal takes it out of state SoL, get a 30 day window to refile in state court (toll
the SoL). (1367(d)).
But, can't toll if claim is against state agency which hasnt consented to the
provision. (Unconstitutional - 157)

REMOVAL - can remove if...

1 Ps claim arises under the Constitution or federal law (well-pleaded complaint - Mottley),
OR...

If some do and some don't, fed. claims are removable, and state claims are at fed.
court's discretion. (1441c).
2 Diversity rules under 1332, but...
"Home-Boy Theory": cant remove if any D = citizen of the forum state. (No reason to
fear discrimination).
0.
But if P dismisses or settles claims against all non-diverse Ds, can remove if
other reqs met. (EM 75).
1 year limit: normally, cant remove more than 1 year after original claim. (1446(b)).
i.
Exception: If case w/ non-diverse parties is improperly removed, judgment is
valid if diversity existed when judgment was entered. (Caterpillar, Inc. v Lewis
158). (Overruled by Grupo Dataflux?)
0.
P strategy: wait 1 year, then amend to satisfy 1332 ($75k) or settle/dismiss
non-diverse Ds.
i.
But - risks not getting leave to amend under RULE 15a2.
3.

Federal Officer / Agency or Soldier is sued for acting in the course of duty. (1442, 1442a).

Non-removable actions: (for more detail - 1445: these cases are more P-friendly: P
chooses court, D is stuck with it).
1.
Suing RR
2.
Suing carrier or receivers
3.
Worker's comp
4.
Violence against women act
Removal Process: (1446) - File notice w/ district court for state court's district, w/in 30 days of
getting complaint.
(Or amendment that makes it removable). Then, notify state court and
other parties.

Subject to rule 11 if your "short and plain statement" = BS.

Challenging removal (1447): Motion other than 12b1 must be made w/in 30 days.

If remanded back to state court, D may have to pay P's atty fees and costs for fighting the
removal.
If P tries to join non-diverse parties, court may deny, or may permit and remand to state.
JOINDER / COUNTERCLAIMS
Broad joinder is 1 of 2 distinctive features of modern U.S. litigation. (The other is
extensive discovery).
Broad joinder (class actions) = substitute for regulatory action of economic life.
Joinder is useless if courts can't have jurisdiction, so rules expanded supplemental
jurisdiction to accommodate.

- Can join a group of Ds, can join together as Ps, counterclaiming D can join addl D to the
counterclaim.
- RULE 20 Joinder of Parties: Requires same t/o AND common questions of law or fact. Judge has
discretion to sever.
- The broader this is defined, the greater the scope of claim preclusion, if claims arent
brought in current case.
- RULE 18 Joinder of Claims: Removes all barriers to addl claims. Sorting left to jurisdictional
rules / judge's discretion.
- RULE 13a allows counterclaims for same t/o.
- RULE 13b allows unrelated counterclaims.

- RULE 13g, h allow cross-claims against co-parties, initially limited to same t/o (but then can
piggyback).
Supplemental Jurisdiction over Counterclaims / Crossclaims:
1. Compulsory Counterclaims OK. (Compulsory if arise out of same t/o 13a).
2. Permissive Counterclaims must back own jurisdictional lunch. (Federal Question, or Diversity
+ $75k)
- and then can piggyback any unrelated claims through Rule 18(a).
3. Cross-claims against Co-D OK if same t/o. Then can piggyback unrelated claims w/ Rule 18(a).
- Then Co-D can counterclaim against Co-D under 13a or b, as above.
Supplemental Jurisdiction over joined parties:
1. Can join party (Rule 20) if their claim (or claim against them) = same t/o AND any common
question of law or fact.
2. Original claim has federal-question jurisdiction: Automatic supplemental jurisdiction.
3. Original claim has diversity jurisdiction: NO supplemental jurisdiction (1367b). Needs own
jurisdictional lunch.
- Only limits Original Ps claims. Does not limit Original Ds claims, if Original D is acting as
a 3PP.
Plant v Blazer Financial Services CB 538 Loan company gets supp. juris. over
counterclaims, against Ps who owe them.

Allows supplemental jurisdiction of COMPULSORY counterclaims.

If compulsory, then it's part of the "same cause or controversy" under 1367a.
Exceptions to Compulsoriness of counterclaims: (There is a 5th as well. EM 271).

1.

D has not yet filed an answer. (13a requires counterclaim to appear in answer). (But
maybe compulsory under CL).
2.
Claim has not yet arisen when D files answer.
3.
Adjudication requires 3d parties who would destroy diversity jurisdiction, or arent within
personal jurisdiction.
4.
Counterclaim is already being litigated in another action (when answer is served).
Mosley v General Motors Corp. CB 544 - 10 Ps claiming race and sex discrimination allowed
to join.
- Same t/o + common questions of law or fact?
- Some are employees, some are applicants who were not hired.
- Separate incidents, and different kinds of discrimination, but all alleging a "general pattern or
policy" of discrimination.
Is this consistent with Rules 20 and 21? Rule 42 allows judges to join or sever as they see fit, for
trial convenience.
YEAZELL: Broadening who can be allowed to join (stretching "common question of law or fact)
also broadens the number of claims that will later be precluded (if plaintiffs don't bring them in
this case).
IMPLEADER - why implead instead of file a 2nd lawsuit?

No preclusion against D who wasn't in first suit, so defective product in suit #1 could be
NON-defective in suit #2.

RULE 14: can implead a 3PD who may be liable for all or part of the claim. CANNOT implead for
its him, not me.
1. Personal jurisdiction over 3PD? (100-mile-bulge through 4k1).

Only matters if courthouse is within 100 miles of a state border: usually small
northeastern states.
2. Supplemental jurisdiction? (Only limits if the claim does not pack its own jurisdictional lunch!)

Impleader arise out of the same t/o (as between OP and 3PP)?

If in fed. court for diversity, 1367b DOES NOT deny supp. juris. to claim by 3PP
against 3PD

1367b DENIES supp. juris. to claim by OP against 3PDs, even if OP is a 3PP

impleading against counterclaim.
3. 3PP can piggyback unrelated claims against 3PD w/ Rule 18.
4. 3PD MUST counterclaim against 3PP w/ 13a (even if not same t/o as OP v 3PP), and MAY w/
13b. (14a2b).
5. 3PD can implead a 4PD.
6. 3PD can bring same t/o claims against original P, and piggyback more w/ rule 18.
7. 3PD can assert any defense to OPs claim that 3PP has. (14a2c).
Price v CTB CB 548 Latco could implead ITW for faulty nails, because there was a CL implied
indemnification K.
Owen Equipment v Kroger CB 554-556 Result codified in 1367b.
RULE 19 COMPULSORY JOINDER - about protecting unrepresented affected interests.
Ghost of 1700s: dismissing cases inefficiently packaged - can't do perfect justice, so will do no
justice.
Temple v Synthes Corp CB 560 - Temple sued Synthes in Fed Court, but sued Hospital and Doc
in State Court.
Dismissed because Temple refused to join them in one suit. SC overruled. Could have joined,
but doesn't have to.
- Rule 19 DOES NOT require P to join all joint tortfeasors as Ds.
- If judgment for full amount entered against Ds, they can sue other tortfeasors for indemnity in
separate action.
- Rule 19 DOES NOT require packaging lawsuit in the most efficient manner. Exorcising the 18th
c. ghost.
Helzberg Diamond Shops v Valley West Des Moines Shopping Center CB 563 - "Crocodile
Tears" defense?
P = tenant in Ds mall. D breached K not to lease to competitors. P sued to enjoin D from
renting to competitor.
Competitor was a party to be joined "if feasible" under 19a1bi because if P wins, it will affect
competitor's legal rights.
Risk of not including competitor: 2 suits, 1 enjoins from renting, 2 orders to rent. But, no
jurisdiction over competitor.
- Did not dismiss, because competitor was not "indispensible." Still had all its rights under lease
agreement with D.
- Unlikely risk of inconsistent judgments, because no showing that another court might interpret
the lease differently.

Rule: not indispensible to an action determining K rights just because your rights under a
separate K will be affected.
Yeazell: Court was wrong. Could have fixed this problem by using 1404 to switch venue!
Hypo: Trust: Income to A for life, remainder to B.
Trustee investing all in high-yield bonds, which give large income to A (but risky), while principle
is eroded by inflation.
Action for accounting. B not involved. Will B be bound by the results? No, not a party.
B could sue trustee later, for damages, but trustee may be insolvent by that point.
If B is not joined, B's ability to protest his interest may be compromised. (19aBi). So B has to
be joined.
CLASS ACTIONS Rule 23 + CAFA 1332d

Special Category: state law securities actions must remove and dismiss - a fancy
form of federal preemption.

Stage 1: getting the class action underway

- Two Initial Hurdles: 23a + 23b - what it takes for a class to be a class: "certification"
- 23c - procedure for cert, including notice
- 23f - appealing a grant or denial of class cert
- 23g - procedure and reqs for appointing class counsel
State 2: running a class action: 23d - interlocutory orders (supplements rule 16 for class
actions)
Stage 3: ending a class action:
23e, h - settling a class action, awarding attorney's fees
1.
2.
3.
4.

Certification greatly increases P's bargaining power

Greatly increases the stakes for the D
Conversely, denial of certification often means that case will evaporate.
If certification has adequate representation, all members of the class will be bound.

4 requirements of 23a: --- (numerosity is out there by itself, but the other three seem to
overlap).
1. Numerosity (23a1) --- Enough persons are in the class that joining as individuals is
impractical. Usually 100+.
2. Commonality (23a2) --- Have to actually be a "class" who share characteristics (that matter
under the substantive law).
3. Typicality (23a3) --- Class representative must stand in the same shoes as the average class
member.
4. Adequacy of Representation (23a4) --- Need enough $ to finance the suit, too.
3 categories of 23b:
1. Mass production version of Rule 19. (23b1).

"Appropriate notice" to the class "may be directed" (23c2).

2. Opposing party has acted "on grounds that apply generally to the class." (23b2)

Limited to injunctive or declaratory relief.

"appropriate notice" to the class "may be directed" (23c2)

3. Claims seeking primarily $
Individual notice mandatory for members who can be identified through reasonable
effort." (23c3) (Mullane).

 Questions of law or fact common to class must PREDOMINATE over those affecting

individuals...
...and class action must be best way to handle, considering 23b3 factors.
Commun. for Equity v MI High School Athletic Ass'n. 584 - Argument against cert: Some
female athletes like status quo.
1. OK because the class purports to include only those who are adversely affected.
2. Also OK because Ds represent the interests of the students who don't want change.
- But the Ds have different motivations than girls who like status quo. How to solve this?
Answer 1: It doesn't matter if a lot of people like the status quo - if it's discriminatory, should
facilitate fighting it.
Answer 2: Make another D - class of all people prefer status quo. But is there anyone ready to
represent this class?
Heaven v Trust Company Bank CB 590 - Truth in lending class action...
23b3 not satisfied, because Ds compulsory counterclaims against individual class members
which would require individual factual determinations. Judge: unmanageable, so 23b3 factors
weighed against certifying the class.
Yeazell: Smart judge could refuse supp. juris. to counterclaims because they'll mess up the class
action, under 1367c.
Hansberry v Lee (Hansberry = D, Lee is trying to enforce racially restrictive K).
Suit #1: Class sues to enforce covenant. Stipulated that 95% signed it (necessary for
enforcement) but this was not true.
Suit #2: D trying to void same covenant. P's argument: preclusion, you were a member of the
class in the original suit.
Holding: Not a member of first class, because that class did not represent D's interests.

Implication: An inadequately represented class member may attack the judgment

collaterally, on due process grounds.
Implication: If you are an adequately represented class member, YOU ARE BOUND.
Yeazell: WRONG to use preclusion. Was stipulated, not actually litigated. But SC could not
address this error of IL law.
HANSBERRY + MULLANE = Magna Carta of modern class action:
Hansberry: If you were adequately represented, you are bound.
Mullane: It is possible for you to be bound despite not getting individual notice.
PERSONAL JURISDICTION FOR CLASS ACTIONS
Phillips Petroleum v Shutts CB 597 (1985) - (crocodile tears argument fails)
In KS court on behalf of 33k people owed royalties under natural gas well leases. There are
people in every single state.
Class members all got a mailed notice, and could return a form to "opt out." Didnt have to opt
in. 3k opted out.

D wants out of KS. Argument: in many cases, no minimum contacts. No jurisdiction over
members unless they "opt in."
Holding: Dont need minimum contacts to bind the class! But, absent Ps need at least an
opportunity to opt out.
- Holding only covered 23b3. What about b1 and b2? Rule 23c2a - "Court may direct appropriate
notice to the class."
Why? Class actions afford protection that substitutes for minimum contacts:
1. Don't have to travel
2. Adequate representation is guaranteed
3. Rule 23 guarantees members some form of notice and opportunity to opt out of the class
4. Courts rarely allow counterclaims against class members, so unlikely to result in $
judgments against members.
Limitations: This applies to PLAINTIFF CLASSES, but court did not rule on whether it applies to
DEFENDANT CLASSES.
Mullane suggested Ps who couldnt be found or notified are still bound, if the attempt to notify
was "reasonable."
Class Action Fairness Act - easier to get class actions into federal court:

New definition of diversity jurisdiction, only for class actions. (1332d).

Bare Diversity: If ANY P is diverse from any D, that is enough. (1332d2A).
All claims must add up to over $5 million. (1332d2).
Discretionary remand. 1332d3
Mandatory remand. 1332d4.
NO Home Boy Rule: special removal provision (1453) which only applies to CAFA class
actions.
Settlements regulated by new statute: 1711-15.
o
o
o
o

Remand provisions: "Ifcase has a bunch of issues connected to particular state, it should be tried
in a state court there."

mysterious unlitigated questions:

What if 3/4 of Ps are from Texas but case was "originally filed" in California?

If it should be in a different state's state court, should district court dismiss, or transfer to
a fed. court in that state?
1332a + Allapattah

1332d (CAFA)

Complete Diversity

Bare diversity

1 P must satisfy over

$75k

All Ps combined must add up to over $5

million

SETTLEMENT OF CLASS ACTIONS --- How to class action lawyers get paid?
- Lodestar System: look at...

Competitive hourly fees (for similar experienced atty, for case of this complexity)

Reasonable expenditure of hours

- What if you are suing for an injunction?

Fee shifting statutes

Affinity group funding

- Lawyer + class representative are simultaneously determining settlement terms, and lawyers
fee, by themselves...
- Collusion between P atty and defendants? How to protect class against shady settlements?
Rule 23e - settlement requires:
1.

Court approval that it is fair, reasonable and adequate, after a hearing.

a.
Court may require another "opt out" opportunity, before binding 23b3 class
members.
2.
Reasonable notice to all class members who will be bound.
3.
Parties seeking approval must file a statement of any agreements made in connection with
it.
4.
Any class member may object...
a.
objections can't be withdrawn without court approval (so you can't object, hoping
to be bought off).
b.
Professional objectors do this, on behalf of class members, to try to raise the value
of the settlement.
23e - Attorney's Fees - requires: 1) Notice 2) Hearings 3) Findings 4) Opportunity to object to
fees
Coupon settlements (1712d): - value for fee purposes = what's actually collected, not the max
value of all coupons.
Regulatory Authorities (1715): (connected to idea that class actions play a role in gov't
regulation).

DEFENDANT has to tell appropriate regulatory authorities about the settlement.

Otherwise, settlement will not have preclusive effect

Amchem Products Inc. v Windson CB 607 - Asbestos Case - Should settlements like this be
allowed?
P attys had many individual cases, with individual plaintiffs, with a lot of individual defendants.
Ds wanted to set up a fund to settle everything, but wanted to do it in a way that would bind all
the people out there who hadn't sued yet. Wanted to create a class action of everyone exposed
to asbestos who had not yet filed a claim.
SC said NO. Adequacy of representation. Conflict between those currently suing, and people
who might one day sue. Current Ps want $ now, later Ps would want the fund to be big and
protected from inflation.
Yeazell: Could save this settlement - locate separate counsel to negotiate on behalf of the new
class.
a.
Might have worked, but might have killed the settlement if they couldn't agree on
one.