Civ Pro 2 Notes 9/15/04


A current affair


The House passed, about 50 votes, a bill to change the Federal Rules.  They’re trying to make John Edwards look bad.  The bill they passed is another case of Congress ignoring the REA and the process of changing the Rules.  Congress wants to tinker with the rules itself!  The supporters of the bill seem to believe that federal judges will not sanction attorneys.  They are trying to amend Rule 11 to make it a requirement that a judge impose a sanction if the Rule is violated.  A revision like this would never have made it through the REA process.  Next, they try to impose Rule 11 on state cases if the case affects interstate commerce.  They also try to federalize procedure as to Rule 11.


They purport to limit the places a personal injury claim can be brought.  That would change all of our personal jurisdiction as to minimum contacts by establishing certain forums where certain types of lawsuits can be brought.  For most injuries, this will get the likely forums: where the plaintiff lives, where they lived at the time of the injury, where the injury occurred, or the defendant’s principal place of business.  But consider a traffic accident.  Under this statute, you wouldn’t be able to sue the defendant where the defendant resides!  So as to individual defendants, you can’t sue them where they live!  They also take away from the plaintiff their choice of forum.  It gives us definitions of what constitutes these types of claims.  They also try to apply the bill to any claim filed in federal or state court.  Where does Congress get the power to do this in the Constitution?


This illustrates the conflict related to just who will have the power to set the rules in the courts.  Will the judges make their own rules, or will Congress do it for them?  Fairman doesn’t believe that there are lots of frivolous lawsuits, and even if there are, he doesn’t think this will stop them.  The motivation is that if we make sanctions more available, we’ll keep lawyers from bringing “junk lawsuits” because more federal judges will use Rule 11 sanctions.  But if this statute is passed, Fairman guesses you’ll actually see less use of Rule 11 and more use of other discretionary powers.


Fairman expects that nothing will happen in the Senate, or at least it will go slowly enough that he can write a scathing critique!


Complex joinder


Let’s do some problems to help set the stage for these issues and how they play into the supplemental jurisdiction statute.  Say we have a single plaintiff who buys a car from a dealership.  He thinks it’s defective.  He sues both the dealership and the manufacturer.  There’s nothing fancy about the lawsuit.  It’s a single cause of action with one plaintiff and multiple defendants.  The plaintiff says: “One of these two defendants or a combination of the two is liable.”  Let’s say the dealer wants to file a claim of indemnity against the manufacturer.  Maybe the manufacturer is contractually obligated to indemnify the dealer.  The dealer can file a cross-claim!  Rule 13(g) lets you do it.  Rule 14(a) would have worked if the manufacturer hadn’t already been in the lawsuit.  Impleader could bring them in as a third-party defendant.


What if the manufacturer wants to raise the claim that the defect was the dealer’s fault and not their fault?  They just file their Rule 8(b) answer, where you put your denials and defenses.  There’s nothing else special that you have to file.  You’re just denying your own liability.  What if the manufacturer wants to assert a claim for non-payment of other vehicles other than the one that’s allegedly a lemon?  The only way that the manufacturer could make this as a cross-claim would be to use 13(g), but there’s no transactional relationship!  They have to file a separate lawsuit.  Can the dealer countersue the plaintiff for not paying for the car?  Yes!  You don’t need the same transaction or occurrence, depending on whether it’s a permissive or compulsory counterclaim.  If it’s a permissive counterclaim, you can do it under 13(b), which doesn’t require anything except that you have any claim against the opposing party.  If it were a compulsory counterclaim, then the dealer would have to bring it or risk losing it under preclusion doctrine under Rule 13(a).


Why wouldn’t Rule 18 help us?  It says that you can join as many claims as you have against anybody you want!  The Rules are a system.  Even though this Rule says that you can bring any cross-claim you want, you must read this Rule as being limited by other Rules that add more specificity.  The specific always trumps the general.  If this was the only Rule you were looking at, you would screw up a lot!  You have to view the Rules as a system and be guided by the principles that are involved in the construction of the Rules themselves.  You want to bring claims and parties that seem to come out of the same events together because it appears to be an efficient trial package.  The only problem that messes this up is if you have jurisdictional issues that make joinder cumbersome.


Owen Equipment & Erection Co. v. Kroger


Yeazell starts with the Circuit case to work us up to the Supreme Court case.  What’s going on in the underlying lawsuit?  Kroger was employed by a steel company.  They were moving a crane, and he got electrocuted and he died.  The widow, Mrs. Kroger, sues for wrongful death.  Who can we sue?  We ought to be able to sue somebody.  We could sue the employer!  That would be a great option!  He could sue the Omaha Public Power District, which owns the lines and sold them.  Then there’s the people who leased the crane, Owen.  Everybody would think to sue the employer first, but it’s precluded as a matter of substantive law by worker’s compensation.  It was an on-the-job injury, which is part of what state tort law does.  Who would we rather sue between Owen and Omaha Power?  Who is more involved in these events?  The plaintiff’s lawyer chose to sue Omaha Power.  Why did the plaintiff make that decision?  They ultimately bring a claim against Owen.  Maybe the facts weren’t as fully developed when the plaintiffs brought the suit, or the plaintiffs’ lawyers didn’t do their homework.


What does OPPD do?  They implead Owen.  The suit was filed as a diversity action.  Omaha and Kroger were from different states.  There was no subject matter jurisdiction problem.  Owen gets involved under Rule 14.  The idea is that if OPPD has any liability at all, it will pass through to the crane operator, who is ultimately liable for the injury caused.  At the time the impleader action was filed, everyone thought that Owen was a corporate citizen of Nebraska.  What messes things up is that once Owen gets brought in, the plaintiff amends to add a claim directly against Owen.  Owen responds to the third party complaint, admits that they are a Nebraska corporation, but they deny every other allegation.  It’s a truthful but not forthcoming answer.  Two years later, it’s discovered at trial that Owen has its principal place of business in Iowa!


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