Civ
Pro 2 Notes
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.