Civ Pro 2 Outline


Table of Contents


The story of pleading. 2

Heightened pleading. 6

The myth of notice pleading. 9

Motions. 10

Pre-answer motions – Rule 12(b) 11

Answer. 12

Denials. 13

Affirmative defenses. 13

Amendments. 14

Joinder. 16

Joinder of parties. 17

Complex joinder. 19

The Rule of Zahn. 21

Compulsory joinder – Rule 19. 21

Intervention – Rule 24. 23

Interpleader – Rule 22. 25

Class actions – Rule 23. 26

Settlement of class actions. 30

Discovery – Rules 26-37. 32

Privilege. 33

Disclosures. 33

Interrogatories and depositions – Rules 30 and 33. 34

Production of documents – Rule 34. 34

Requests for admissions – Rule 36. 35

Experts. 37

Discovery disputes. 38

Resolution without trial 39

Default judgments – Rule 55. 39

Settlements. 40

Confidentiality in settlements. 40

Arbitration. 41

Summary judgment – Rule 56. 41

Judicial management of litigation. 42


The Five Themes of the Course


  1. Power – how is it distributed?  Rules allocate power between different parties.  The way we draft and interpret the rules will change the way different people in a lawsuit will have power in that dispute.
  2. Interrelatedness – The Rules are a system.  Changing one part of the system could have a dramatic effect on other parts.  We tend to be, as rule-makers, stingy about changes due to the potentially “ripple effects”.
  3. Balancing of interests – The Rules try to balance interests that often compete.
  4. Costs associated with choices
  5. Efficiency vs. equity


Hopefully, everything we do with touch these themes.


The Five Pedagogical Objectives


  1. Identify and apply “Black Letter” procedural rules – we’ll learn what notice pleading is, what discovery tools we have, what the requirements for summary judgment are and how they are different than those for a motion to dismiss
  2. Determine the doctrinal and policy implications
  3. Understand theoretical implications
  4. Develop a critical perspective – there are different ways to do procedure.
  5. Critically read cases for procedural issues


Why are the Federal Rules of Civil Procedure important?  Most of the states’ rules have modeled their rules after the Federal Rules.  Remember Erie and the Rules Enabling Act.  The Supreme Court has delegated its responsibility to write the Federal Rules.  There is the Judicial Conference, which has two parts: the Standing Committee and the Advisory Committee.  Congress has the opportunity to accept or reject Rule changes.  For example, should you be able to file things by fax?  Lawyers say yes!  It’s now in Rule 5(b)(2)(D).  You can deliver copies of things by fax as long as you meet the standards of the local jurisdiction.


Congress can intervene unilaterally by creating their own rules, separate from the Federal Rules of Civil Procedure.  Fairman thinks this is bad.  Other people think it’s good.


The state of modern litigation


One of the common criticisms is that we live in an overly litigious society.  Yeazell challenges the idea that there is an explosion of litigation.  Public perceptions cause Congress to make changes in federal practice.  Tort reform and class action reform stem from that.  98% of litigation is at the state level.  Very little is federal.  But the state rules are still modeled on the Federal Rules.  We don’t even have an Ohio Rules course!  So only 3% of litigation goes to trial.  Most litigation settles.  Everything we talk about up to pleading, joinder, and disposition prior to trial is pretty much where litigation is.  Very, very little gets to the trial stage.  There are more jury trials than bench trials.  Contracts plaintiffs and torts defendants tend to win.  So Fairman and others think that tort reform is bad.


What does medieval English royal power have to do with procedure?


The story of pleading


Fairman’s scholarship is chiefly in the area of pleading and pleading practice.  What’s the relationship between common law pleading practice and the modern Federal Rules?  What does the King of England have anything to do with it?  Let’s go back to Medieval Times!  There were two types of courts: the royal courts or king’s courts and the courts of equity.  With the royal courts of justice, you had to get the king’s attention somehow.  What develops initially as an oral tradition evolves into the system of writs: paper documents that spelled out different causes of action, such as the trespass writ.  This was what Wright called “the elaborate dance of pleading”.


When you were served with a common law writ, do you demurrer or do you plea?  The demurrer challenged the sufficiency of the writ: “So what?  I assume that everything you’ve said is true, but it doesn’t matter.”  The pleas agreed that the writ was sufficient but raised other objections.  Dilatory pleas dealt with either jurisdiction or venue: “Not here, not now.”  The bars either said: “Not true” or “yes, but”…these were traverse or confession.  There was a formulaic way to get into court and a formulaic way to respond.  Today, a 12(b)(6) motion is quite similar to the common law demurrer.  For jurisdiction and venue, we have 12(b)(1) and 12(b)(5).  For traverse and confession, we have denials and affirmative defenses.  So this is why it’s worth being familiar with common law pleading practice: its elements are still present in the Federal Rules today.


Here’s something that Yeazell doesn’t mention: there was a whole parallel court system to the royal courts, namely, the equity courts or courts of chancery.  The courts of equity didn’t follow the same rules of pleading as the common law courts and you could appeal upon the chancery courts for relief because it was right and fair.  They issued injunctions.  There was no power at law for the equity courts to order this.  They could order specific performance as a remedy.  They also had no jury trials.  You wouldn’t need a jury to decide issues of equity.  The equity courts develop their own way of doing things.


So we have a complicated, crappy system!  By the mid-nineteenth century, we get a reform effort in the form of the Field Codes, or Code Pleading.  It starts in New York and spreads throughout the country.  Instead of having to use writs and pleas, we’ll start litigation by presenting a statement of facts stating a cause of action, written in a way that an ordinary person can understand.  But here was the problem: it was overlaying a reform on top of a body of lawyers who were used to using the old system.  They found a way to make a game out of the intended reform.  What is a fact?  What is a cause of action?  Huge bodies of action developed over what a fact is.  Neither evidence nor conclusions were considered facts, and you could get booted out for pleading either.  You also had to plead all the elements of a cause of action, which led to other levels of complexity.  The reform effort goes off the rails!  Why did it happen?  Both Field and common law pleadings tried to make pleadings do lots of stuff in the legal process.  Pleadings are good for giving you notice of an upcoming lawsuit.  They can also state the facts, narrow issues, and resolve meritless claims.


This sets the stage for the next level of reform.  Charles Clark was a federal appellate judge and professor at Yale.  This was the “New Deal” for the federal courts!  Clark and his draft committee had a vision of what he wanted the rules to do.  He believed that both code pleading and common law pleading inappropriately kept people from getting their day in court.  A system of rules was developed around that premise.  It all starts with Rule 1: there will be no more split between law and equity courts.  Federal courts will be able to give relief at law and in equity.  Rule 2: there will only be one form of action.  Then we go to the famous Rule 8, upon which Fairman’s career is based!  This is our “short and plain statement” rule!  It sets the bar relatively low.  The facts are gone, the writs are gone, the cause of action is gone.  You just need the short and plain statement.  It’s notice pleading!


Look at Form 9 under the Federal Rules…a guy gets hit by a car on a certain date.  The car was driven negligently.  The plaintiff has his leg broken and had some expenses.  The plaintiff demands payment!  That’s notice.  We don’t know why the defendant was negligent.  Maybe the defendant sped!  Maybe he drove recklessly!  Maybe he ran a stop light!  We assume that there was only one accident on June 1st.  The guy won’t have to puzzle over why he was sued.  The Rules tell us that these forms are sufficient.  Wright says: “Rule 8 is the keystone!”  All the other old burdens of pleading will be provided by other rules and other steps in the process.  Facts will be discovered in discovery, and that’s also where we’ll narrow the issues.  We can resolve meritless claims with motions to dismiss and summary judgment.  Pleading is made simple: we perform other procedural tasks with other techniques.


This isn’t to say that there aren’t elements of code pleading still around.  There are states that still have state pleading rules based on code pleading.  The California Code of Procedure requires a statement of facts, just like the Field Code did.  On the other hand, even though the rule is there, that’s not really what they want.  The influence of the Federal Rules has been so great that the recitation of the facts required in the past is not necessary.  You can use a standard “check-the-box” form.  This is a far cry from what Field intended!  How does all of this work?


Haddle v. Garrison – We’re taken through this litigation to try to explain the way pleading has developed in the modern era.  It’s a whistle-blower case.  Haddle testifies against his former employers at Healthmaster who were involved in Medicare fraud.  Haddle gets fired!  That doesn’t seem right!  So he sues in the Federal District Court in the Southern District of Georgia.  We need personal jurisdiction and subject matter jurisdiction.  Personal jurisdiction is easy because it’s a Georgia court with personal jurisdiction over Haddle because he’s suing there.  We have defendants from multiple places.  We have some from Georgia.  Garrison is a South Carolina resident.  How does the court have personal jurisdiction over him?  Minimum contacts!  Shoe!  What about subject matter jurisdiction?  Why are we in federal rather than state court?  We don’t have complete diversity.  It’s based on the federal civil rights statute – a federal claim!  It’s a suit under 42 U.S.C. § 1985(2).  This anchors the case in federal court, and the state law claims are hooked in with supplemental jurisdiction.


What do the Healthmaster defendants do?  They file a 12(b)(6) motion to dismiss!  They claim that he suffered no constitutionally-protected injury.  They say “so what”!  The guy was hired, he cooperated with an investigation, then he was fired.  The pleading basically says: “Yeah, we did it.  So what?”  At the time, Georgia was an at-will employment state, meaning that you had no property interest in your job.  Without a property interest at stake, there was nothing wrong with firing him.  The district court buys the argument and grants the 12(b)(6) motion.  It’s a winner because the Eleventh Circuit says so in Morast v. Lance.  Haddle appeals to the Eleventh Circuit itself, which per curiams him!  In the Supreme Court, the Eleventh Circuit gets overruled: he does have a claim!  The claim gets reinstated and goes all the way back down to the trial court!


So this is how modern pleading has developed.  The notice element is there, but there’s a whole lot more to the story in the Haddle complaint than the drafters of the Rules might have anticipated.  We also see the overlay of the review of law where the courts agree, but then disagree as to whether the legal issue was right.  Haddle wins, kind of.  He doesn’t win much money.  But the attorneys win big time!  They get over $250,000 in legal fees from a Magistrate Judge.  We will continue to think about this: the Rules create costs and benefits.  Part of the negative impression of lawyers in the public mind, according to Fairman, is due to stories like this where the lawyers get a lot more money than the client.  Is this inequitable?  The jury can certainly limit damages.  The Magistrate Judge didn’t grant all the fees that were asked for.  They were basically cut in half.


We left off with the short story of pleading.  The bottom line is that Rule 8 is “notice pleading”.  Notice should be sufficient to withstand a motion to dismiss.  It’s possible to have a statement that’s too long.  A complaint could be so detailed that a court could dismiss it on the basis of prolixity.  A 4,000 page complaint is too damn much!  Notice that you can plead inconsistently.  It’s provided for in Rule 8(e)(2).  You can set forth alternate or hypothetical statements of claims or defenses regardless of consistency.  This may make us uneasy that we can plead things that are internally inconsistent.  But Clark wanted a system where when you’re putting the other party on notice early, even though you might not know what your various causes of action are exactly.


Ethical limitations


Yesterday, we looked at the plight of Haddle.  Haddle lost in the trial court because the law of the circuit said that he had no property interest in his continued employment.  What if the law said that had a property interest if the company had promised it would only terminate him for cause?  In other words, he’s still in an at-will state, but the company has promised only to fire him for cause.  Could Haddle amend his pleading to avoid 12(b)(6)?  Shouldn’t he have thought of that the first time around?  Why can’t he make that point going forward, though?  But we don’t know whether the company promised him he would only be dismissed for cause.  You can’t just lie to get past 12(b)(6).


Rule 11


Rule 11 is a long rule.  Every piece of paper filed in a court shall be signed by at least one attorney or pro se party.  Stuff that’s filed has to be signed!  The reason it’s important comes in 11(b): you assert that you’ve done a reasonable investigation and you, in good faith, think you’re properly filing the document.  You can’t harass or delay!  You have to have non-frivolous claims!  You have to have facts that can be supported by evidence!  There is a tension in the Rules: plead quickly and get the lawsuit started, but Rule 11 says that you must have done reasonable investigation first.  What are the consequences?  The court can impose sanctions!  Attorneys, firms, or parties can be sanctioned.  Rule 11(c) sets out a detailed process for how we do this.


You can mostly just read Rule 11 and you’ll get it.  If it ain’t filed with the court, it ain’t a Rule 11 violation!  If there’s no document, or it’s not filed, or there’s no court…no violation.  What about groundless discovery?  Rule 11 doesn’t apply to discovery!  There’s a different part of the Rules that deal with discovery abuses: Rule 26.  The penalty scheme there is different.  What about a client who brings in a frivolous lawsuit and you rush to file it?  The attorney can get knocked for Rule 11(b)(3).  It looks like there was no investigation!  You need an “inquiry reasonable under the circumstances”.  That means you might be off the hook if the client comes to you when the statute of limitations is almost over.  If you only have a day to file the lawsuit, they might go easier on you.


Walker v. Norwest Corp. – This is a case of lawyers failing to investigate the law, which isn’t that common.  The lawyer filed a lawsuit in federal court claiming diversity.  We must have complete diversity.  The Walkers are from South Dakota, and Norwest is from Minnesota.  The problem is that they said that the plaintiffs and some of the defendants were from different states, and some of them were actually from South Dakota as well.  Oops!!!  Having a South Dakota defendant will violate the rule of complete diversity.  This is an interpretation of 28 U.S.C. § 1332.  On the face of the complaint, there’s no federal jurisdiction.  Norwest sent the plaintiff’s lawyer notice of this.  They try to be nice about it.  Massey ignores them, basically.  Norwest files a motion to dismiss and a motion for Rule 11 sanctions.


Why does Massey argue that Rule 11 sanctions are inappropriate here?  He says it would be too hard to figure out where the defendants are from!  Tough, dude!  Plaintiffs have managed to do this basically forever.  So the argument is stupid on its face.  It’s not surprising the sanctions were affirmed given that that’s the extent of his argument.


Pay attention to what Norwest does.  They’re represented by sophisticated litigation counsel.  Do they follow appropriate procedure?  Rule 11(c)(1)(A) tells us that we initiate sanctions by motion after we first give the other party 21 days to withdraw their motion.  Norwest sent the guy a letter.  They didn’t really serve him.  Norwest appears to have messed up!  To do this right, they should have drafted its motion for Rule 11 sanctions, served it on Massey, waited 21 days, see if he dismissed the lawsuit, and only then file the motion with the court.  This is the safe harbor provision.  It tries to let lawyers work these issues out without taking up the court’s time.  So how do we get an affirmation of the sanctions?  Luckily, there’s another bit, Rule 11(c)(1)(B), which lets the court impose sanctions sua sponte.  Did the district court issue a show cause order?  We don’t know.  Law firms can have their own Rule 11 procedure.  You would have to get your Rule 11 motions approved by your firm’s ethics committee.


Christian v. Mattel, Inc. – There are dates stamped on the back of Barbies’ heads!  If the plaintiff’s attorney had done even the most basic research, he would have found that the suit was absolutely meritless.  The plaintiff’s attorney, Hicks, did lots and lots of stuff wrong.  Why would Mattel have pursued the strategy it pursued?  It files its motion for summary judgment first and then files for Rule 11 sanctions as opposed to filing for Rule 11 sanctions first and getting the lawsuit dismissed.  This massively runs up the bill, where you could have had the same result much faster and cheaper.  But Mattel wants to send a message: don’t screw with us.  They chose a more expensive and protracted strategy.  This is similar to how WalMart vigorously litigates slip-and-fall cases.  The district court’s Rule 11 orders are vacated!  The district court, in all its excitement, imposed sanctions for stuff that you can’t impose sanctions on under Rule 11.  You can only be sanctioned for the filing of improper papers!  The district court goes beyond that in its justification.  Hicks gets a short term victory in the Court of Appeals, but he’ll get hammered when it goes back to the district court.  It’s a victory, in the long haul, for Mattel.  Mattel made a mistake when they offered up all these different grounds for Rule 11, including some that weren’t right.


The bottom line is that Rule 11 provides a way to control the behavior of lawyers based on the filing of documents in court.  It’s a good rule!  Do you factual investigation!


We left off looking at the conflict between what one pleads in order to meet Rule 8 and what one must do in order to meet Rule 11.  The Rules present inconsistent burdens: the lawyer must have, theoretically, the facts in order to prove that you’ve done a reasonable investigation before filing, but you don’t have to plead those facts per the notice pleading standard.  Today, we continue, skipping the ethical part and looping back to the pleading part.


Heightened pleading


The drafters of the Rules envisioned a limited situation where more specific pleading would be required: pleadings involving fraud or mistake.  This is found in Rule 9(b): “…all averments of fraud or mistake…shall be pleaded with particularity.”  In certain cases, the pleading must do more than notice by articulating some factual basis to develop the claim.  This is pretty much a fraud rule because there isn’t a body of law in mistake.  So the drafters’ ideal world would be notice pleading for everything except for fraud.


Stradford v. Zurich Insurance Co. – This isn’t even a published opinion.  It’s rather unremarkable.  How is this pleading requirement applied?  What did Dr. Stradford do?  He had insurance covering his office.  He let his insurance payments lapse.  The insurance company cancelled the policy for a certain period of time.  Then he starts paying again, and the insurance company lets him restart coverage by saying that he had no claims during the period where he missed his payments.  But very soon after the policy was reinstated, he filed a claim saying that frozen pipes caused damage in his office.  The first claim was about $150,000, which was pretty big.  The company paid the claim.  But then he submitted a revised claim for $1.38 million!!!  That’s a red flag to an insurance company if you ever saw one!  The company starts investigating more thoroughly.  They end up believing that the loss actually occurred during the time when the policy had lapsed.  They don’t pay the big claim!


The dentist sues for this claim, and the insurance company countersues for the $150,000, plus punitive damages and investigation expenses.  Does it matter for the purposes of Rule 9 whether it’s a claim or counterclaim?  Apparently not.  One of the issues around Rule 9 is what it applies to.  All courts will apply the standard to claims and counterclaims.  What about a subset of a claim that has a “fraud-like” element to it?  The counterclaim is for common law fraud.  But what if it were a state statutory claim for fraud?  Would that make a difference to the pleading standard?  There isn’t consensus on that point: some courts contend that this is limited to only common law fraud, but this is a minority view.  Yeazell chose a common law case so we don’t have to get into the issue.


Why do we have a different rule for pleading fraud than everything else?  What does the court say?  How do we interpret the “circumstances constituting the fraud”?  What did the drafters mean?  Is there sort of a “legislative history” of the Rule?  Neither Congress nor the ABA have any commentary whatsoever on Rule 9!  But we do get a comment with the Rule.  We have a shoddy history!  Fairman thinks that this rule is a historical accident.  Fraud was plead with particularity under the common law system.  Even though we shifted to the notice pleading standard, there was some reason judges liked this standard.  But the drafters don’t tell us why they liked it!  We have to try to figure out why it was adopted!  Because it’s not ingrained in the history, the “whys” very dramatically.  This court uses the “time, place, nature” standard.  But that’s not the only standard applied by the federal appellate courts as to fraud.


There are Circuits that require you to “detail the statements”: you must provide the statements that were made that were allegedly fraudulent.  You must identify the speaker.  You must identify when and where the statements were made and you must explain why they were fraudulent.  You need the “who”, “what”, “where”, “when” and “why”.  That’s the mainstream argument, but it’s not the only one.  This truncated version is used because there is no question of who.  So let’s say we have the newspaper standard.  Some standards require you to plead the elements of fraud, which is clearly wrong.  The best practice is to always plead the elements, based on what your jurisdiction wants.  There’s also a standard that says that you must give fair notice of fraud.  That’s the better view, says Fairman, because you should read Rule 9 in relation to Rule 8.  Rule 9, it is argued, wasn’t meant to change the way pleading is done, but it’s just a slight “tweak” done to fraud cases.  In some jurisdictions, the standard varies depending on the complexity of the case.


None of these standards are found in the Rule!  It’s hard to figure out what the proper approach to Rule 9 should be.  It simply depends on your jurisdiction.  But how does this all come together theoretically?  We have reasons that are given as to why we want to have heightened pleading for fraud claims.  The major rationales are to (1) protect settled transactions, (2) protect the defendant’s reputation, (3) deter frivolous suits, and (4) provide notice (“the right one”).


At common law, the equity courts were the only courts that recognized fraud as an affirmative defense.  You couldn’t go to the law courts if someone sued you on the contract and defend it by saying that you were fraudulently induced into signing it.  You would have to wait until there was a law judgment against you.  Then you would go file a separate suit in the equity court to undo the judgment of the law court.  Pleading with more particularity makes sense in the Middle Ages, since you’re trying to overcome the judgment of another court.  But the law courts, over time, begin to adopt all the basic affirmative defenses that the law courts used.  When the two systems are eventually merged, you can still see a “glimmer” of why the rule is there: perhaps you’re trying to protect the transaction itself.  But why is this extended from an affirmative defense to a claim for fraud?  Doesn’t make sense to Fairman.  If someone has defrauded you, you typically want something back.  Whatever rationale for having these suits in the equity courts is now gone.  This requirement is extended to the Field Codes and remains as a legacy.  This isn’t a justification you see very much.  Courts don’t particularly understand it, for one thing.


How about protecting the defendant’s reputation?  How would that work?  Is Dr. Stradford on notice of what the insurance company means by the counterclaim?  Well, sure!  If the pleading had been judged by a Rule 8 standard, there’s no way it would have been dismissed.  Would it affect your decision about going to a dentist if that dentist was sued for fraud?  We don’t require heightened pleading for professional malpractice!  That will probably hurt a dentist’s reputation even more than fraud.  What about intentional torts or wrongful death claims?  Those claims don’t have heightened pleading!  Why do we single out fraud?  If this is the justification, then this is an underinclusive rule.  There are a lot of claims that are probably worse that, according to this logic, ought to have heightened pleading too.


Let’s say you file a fraud claim and someone rushes in with a motion to dismiss.  If you don’t require heightened pleading for fraud and you use a notice pleading standard (just as the rules intend), then these suits are easy to file.  Then you do discovery and try to find the facts later.  Because of this dynamic, there is at least some merit to the rationale of deterring frivolous “strike suits”.  It’s argued that the claims are too easy to plead and too hard for defendants to get out of.  Fairman’s problem with this is that he thinks there are no frivolous lawsuits.  He thinks that’s a myth.  How do you know a lawsuit is frivolous?  The same lawsuit is never both tried and not tried in order to find out if it was really frivolous.  Fairman claims that you can’t prove any particular lawsuit is frivolous.  You can look at what kinds of cases are dismissed at particular stages, but that might be due to circular reasoning.


We hope to get to, and through, the pleading burden issues in the Gomez case, which also ties into heightened pleading.  It appears that notice pleading applies for everything except for a certain small subset.  Recall that courts have required particularity in pleading for fraud allegations in a variety of ways.  Fairman thinks that Rule 9(b) doesn’t make much sense!  We wrapped up by asking whether Rule 9(b) is justified by deterrence of frivolous strike suits.  Fairman says that only a small subset of all frivolous claims are fraud claims or fraud-like.


What’s docket control?  It has to do with giving judges the power to dismiss lawsuits based on their belief that certain cases are more likely to be frivolous.  But Fairman fears that this will cause suits that are truly meritorious to be dismissed at an early stage.  He says it goes against the preference built into the Federal Rules for trying cases on the merits.


The only rationale for heightened pleading for fraud is “heightened notice”.  What did I, the alleged fraudster, say that misrepresented a material fact?  I need to know the specific statement so I know the specific allegation.  But then Fairman says that this simply reduces to notice pleading.  If you need more information for notice, then you need to articulate more facts in the pleading.


Let us return to the case.  What’s missing from the insurance company’s allegations?  What is Stradford’s fraudulent conduct?  The insurance company believes that he lied about when his pipes froze, saying that it happened while he was covered when it really happened after his coverage lapsed.  He would have gotten away with it, too, if he hadn’t gotten greedy!  We can figure out when the fraud occurs from the complaint.  Where did the fraud occur?  It most likely occurred at the office.  Would it be hard to restate this claim to meet the particularity requirement that the court wants?  No way!  So why bother?  The plaintiff wins on the small point, but the defendant wins out in the end because they’re allowed to move for summary judgment.  The motion to dismiss based on Rule 9(b) is granted, so the claim fails to meet heightened pleading under the Rule.  But the amended complaint is immediately accepted.  The remedy, typically, is that the insurance company gets the right to replead, or, in other words, to try again.  As a general rule, the courts will give you a second chance and sometimes more at getting the pleadings right.  Here it will be pretty easy.


It looks like the judge has taken a peek at the merits and found that Stradford is a liar and will get booted.  So the question of who wins here is both easy and difficult.  There will be zero damages for the plaintiff.  Why did the insurance company counterclaim for fraud?  It’s all about the punitive damages!!!  They want to do more than win.  They want to win and beat the guy down by getting punitive damages.  This case will actually make money for the insurance company (if the dentist has any money).


As to common law fraud, heightened pleading doesn’t do a whole lot of mischief or havoc.  These claims are tried and resolved on a daily basis.  But heightened pleading doesn’t keep itself neatly contained to where the rules provide for it.  Yeazell mentions two other big areas: the first is civil rights cases, like Leatherman and Swierkiewicz.  So in Leatherman, it was a Monell action against the cops and the city.  Cities used to have immunity until the Supreme Court decided Monell: cities can be liable if they have a policy or practice of unconstitutional violations.  But in the Fifth Circuit and many others, courts required heightened pleading for civil rights cases even though the Rules have no provision for that whatsoever.  The city in Leatherman filed a 12(b)(6) motion for failure to meet the heightened pleading standard.  That created a circuit split, because the Ninth Circuit disagreed.  In a really short decision by Rehnquist, they said: “Look at the rules!  Heightened pleading for fraud and mistake, not civil rights!  You’re wrong!”  So Fairman came along in the aftermath of Leatherman.  He wrote a note on the circuit split before Leatherman…and of course, now the question is answered, so he didn’t get published.  Undeterred, he eventually got his big article published in the Texas Law Review.  So there you go.


There’s a whole bunch of stuff that’s requiring heightened pleading even though they shouldn’t!  There’s this slim comment from Rehnquist saying that heightened pleading might be okay with civil rights cases against “individual government actors” who are entitled to qualified immunity.  So much law was made from that sentence.  There was another circuit split!  The Seventh and Tenth Circuits said: “Leatherman says what it says”.  The Fifth and Eleventh Circuits said: “Heightened pleading okay in everything but Monell.”  The Ninth and D.C. Circuits said heightened pleading is okay if intent is an element of the constitutional tort.


Say there’s a police officer using excessive force.  Actually, intent doesn’t matter.  In the Ninth Circuit, notice pleading would rule.  But if you allege judicial deception by an officer in obtaining a search warrant, for example, the officer’s intent is an element of the offense.  The Ninth and D.C. Circuits say that in this case you should have heightened pleading.  The Rules explicitly say that intent can be pled generally!  How do you plead facts about the defendant’s intent?  Only the defendant knows what was intended!


The Fifth Circuit is even weirder!  They hate to be reversed!  They sort of reverse the Supreme Court!  They come up with this alternative system using Rule 7 and replies to answers.  Here we have Schultea v. Wood, where the Fifth Circuit cleverly decides that they will require notice pleading for civil rights cases, an answer, and then, if there is qualified immunity involved, a heightened reply from the plaintiff!  The Rules don’t seem to explicitly prohibit this.  The Supreme Court actually approves of this in a later case!  Unbelievable!


Because of the confusion and resistance that resulted from Leatherman, the Court had to revisit the issue in Swierkiewicz, which dealt with an unpublished Second Circuit opinion.  The court basically refuses to accept Leatherman!  The court grants cert on the issue of whether an employee suing his employer must do anything more than put the employer on notice.  The court reverses with the exact same rationale!   You’d think this would be the end of the story, but it’s not!  Then we get the Haltom City cases.  McBryde dismissed some Monell actions for failure to articulate facts.  Wrongo!  So Fairman filed a brief.  And I know what happened.  Buncha unpublished opinions.


The myth of notice pleading


There’s at least one category of cases that’s handled outside of the rubric of the Federal Rules.  Courts have imposed heightened pleading without any Rules-based justification!  The Supreme Court has slapped them down twice, in Leatherman and Swierkiewicz!  What more could the Court do?  Why is there a resilience of heightened pleading in the civil rights context?  This has something to do with the pleading burden.


But please note that the Rules aren’t the only place we’ll get heightened pleading requirements.  For example, the PSLRA gets Congress directly involved in creating procedural requirements (as opposed to indirectly through the Rules Enabling Act).  The statute creates two different burdens: a general particularity requirement, which requires the statement with particularity of all facts that caused people to be mislead, and a requirement to plead with particularity facts that show the defendant acted with a required state of mind.  Congress is directly contravening the Federal Rules of Civil Procedure!  So they make the plaintiff plead the defendant’s state of mind!


Congress was motivated to do this because they believe securities fraud suits are largely frivolous.  They want less of them, and thus they make it more difficult to plead them.  There’s another provision that provides for a mandatory discovery stay: once a complaint is challenged with a motion to dismiss based on the statute, the court must stay all discovery, meaning that there is no chance that plaintiffs will be able to get enough information to plead specific facts.  But has the PSLRA decreased the number of securities suits?  No.  Has it increased the quality of the suits?  Maybe.  But there’s a three way circuit split, and the Supreme Court has twice denied review of the issue.


The same particularity requirement as to intent cropped up in the Y2K Act.  Fairman fears that Congress is using this as a technique to discourage certain kinds of lawsuits.  So proceduralists are annoyed!  The Rules are usually built up from the “grass roots” instead of being imposed from above.  Fairman wants Federal Rules that are transsubstantive – that have nothing to do with substantive law.  Yeazell thinks that Congress is a better choice for making rules, since Congress does approve all changes to the Federal Rules.  But usually they would just accept or reject rules that have gone through the whole Rules Enabling Act process.  Fairman has no confidence in Congress’s ability to get procedure right.


So the classic “notice pleading except for fraud” vision is not accurate in practice!  But is civil rights an anomaly?  No way!  There’s heightened pleading in antitrust, RICO, conspiracy, copyright, negligence, and CERCLA, too!  These are both statutory and common law causes of action, old and new!  This became his second paper.  Take antitrust, for example.  There are cases in the antitrust areas that will dismiss complaint for “conclusory allegations” or “bare legal conclusions as to the facts”.  Every jurisdiction has language like this, but the problem is that many courts use this as a “euphemism” for heightened pleading!  There are cases where there are no special pleading requirements for antitrust.  Other cases carve out a subset, like antitrust conspiracy claims, and require heightened pleading as to the object and accomplishments of the conspiracy.  Fraudulent concealment is dealt with under 9(b) and must meet the particularity requirement.  More dramatically, some courts say you must plead “facts with particularity sufficient to support each element of the antitrust action”.  This is the infamous “hyperpleading”!  Finally, there can be dismissal for prolixity: too many facts!  There you have the “pleading circle”.


If you trace back where the courts imposed all these different heightened pleading requirements, they almost always go back to the “germ” of 9(b) and fraud, saying it’s “fraud-like” or arguing that we should treat other substantive areas the same way.  So Fairman wants to eliminate 9(b).  He proposes leaving “condition of mind”.  So that’s the next article!  Coming soon!


The Supreme Court has so muddled the substantive law of qualified immunity, circuits like the Fifth Circuit didn’t know what to do.  They looked for other ways to protect defendants who they believed were acting properly in their offices.


Pleading burdens


There are three kinds of burdens: pleading burdens – who has to allege the element, production burdens – who must produce the evidence, and persuasion burden – who must persuade the trier of fact.  These burdens can be distributed and shifted among different parties.  Summary judgment, for example, has a whole bunch of burdens shifting back and forth really fast.


Gomez v. Toledo – This case is going down in Puerto Rico.  Gomez is a cop.  There’s shady stuff in the police department, and he’s the whistle-blower!  He gets moved around, then fired.  Factually, Gomez is the good guy and Toledo is the bad guy.  Gomez has been wronged, and he’s going to sue!  He sues under § 1983 since it’s a government unit that’s doing this to him.  He sues based on being denied procedural due process.  He didn’t get a hearing where he could prove his innocence.  The defendant moves for 12(b)(6) dismissal for failure to state a claim.  The basis of the 12(b)(6) is that he claims bad faith must be pleaded since the defendant has qualified immunity.  Who has to plead this issue?


§ 1983 deals with deprivation of constitutional rights under color of law.  It creates a federal cause of action against government actors, acting under their authority.  But along with this, the Supreme Court has imposed the doctrine of qualified immunity, meaning the government actors are off the hook if there was an objectively reasonable belief that the acts were lawful and that the officer acted with the belief that what he was doing was right: both an objective and subjective component.  If you have both, you’ll be off the hook.  Qualified immunity is always raised by a defense by government actors sued under § 1983.  So the battle here is a pleading battle.


Gomez claims that he must simply plead state action, violation of his constitutional rights, and that he was injured.  Then, according to Gomez, Toledo may raise his affirmative defense of immunity based on good faith.  Toledo, on the other hand, sees things differently: he thinks that the complaint must allege state action, a violation of constitutional rights, and bad faith.  The Supreme Court agrees with Gomez.  The pleading burden ends up, ultimately, with Toledo, and the Supreme Court agrees with the Gomez view of the world.  Thurgood Marshall says bad/good faith is an affirmative defense.  Why?  It’s basically just the heightened pleading stuff we just talked about!  The objective part is easy to plead.  But how do you plead the subjective part?  How do you plead the defendant acted with any kind of state of mind?  How could you sign a complaint under Rule 11 stating the officer’s intent?  You’ve got to take a deposition to find this out, and that happens at discovery!  In the aftermath, the knowledge of the facts as to good or bad faith lie with Toledo, therefore, the Court puts the pleading burden on Toledo to raise it as an affirmative defense.


Recall Schultea: the Fifth Circuit resurrected heightened pleading for qualified immunity cases using Rule 7.  What if we put the two cases together?  Gomez files his complaint without qualified immunity in it because the Gomez case says he doesn’t have to.  Toledo would file his answer and state his immunity defense (again, under Gomez).  Then, under Schultea, Toledo would ask the court to require the plaintiff to reply with particularity, the court will so order, and now Gomez is even worse off!  He has to file an answer with particularity, and he’s still in the dark as to subjective intent!  It’s beautifully crafted procedure with a horrible result!


Notice that Gomez, on the law, is bad law.  The case says describes the law of qualified immunity as having two prongs: “objectively reasonable” and “subjectively reasonable”.  But the Supreme Court changed that law in Harlow v. Fitzgerald and struck the “subjective” prong.  So now it’s only a single, objective test.  That’s not procedure, but that’s what the law of qualified immunity is.




What are motions?  It’s a paper document.  When you file a motion, you must know what it means in the jurisdiction in which you’re filing it.  First, you need a document that provides notice, which is often a single page document that is a notice of filing a motion.  Then you need the motion itself, which may be short or long depending on the jurisdiction.  That’s where you ask the court to do something.  The motion may have supporting affidavits or other evidence attached to it.  It’s also often accompanied by a brief or memorandum of law in support of the motion.  Often, you also supply a “proposed order” for the judge to sign if he or she agrees with your motion.  In some jurisdictions, you can combine this stuff together, while in others you can combine it.  We’ll just refer to motions in general.


Pre-answer motions – Rule 12(b)


One of the first motions you would likely file are pre-answer motions.  The most popular by far are the 12(b) motions.  If you litigate, you will consistently have a docket of 12(b) motions to file or respond to.  One thing about this motion is that it affects your answer date.  12(a)(4)(A) says that if you file any of the 12(b) motions, you don’t have to answer the complaint until 10 days after the 12(b) motion has been ruled on.  That buys you time, so there may be strategic as well as legal reasons to file these motions.  12(b) is the substantive part of the rule.  It tells us that every defense will be asserted in the answer except certain ones that you can make by motion.  That means that we could combine all this in our answer, but there’s no strategic reason to do so.  Here are the motions:


12(b)(1): Lack of subject matter jurisdiction

12(b)(2): Lack of personal jurisdiction

12(b)(3): Improper venue

12(b)(4): Insufficiency of process

12(b)(5): Insufficiency of service of process

12(b)(6): Failure to state a claim upon which relief can be granted

12(b)(7): Failure to join an indispensable party under Rule 19


There are other important parts of Rule 12.  Rule 12(e) is a motion for a more definite statement.  If the complaint is too vague, the party can move for a more definite statement.  This was Clark’s idea about what would happen if a pleading were vague: if you didn’t know what they were talking about, you would file a 12(e) motion, giving the plaintiff the opportunity to replead with enough detail such that the defendant can respond.  You almost never see these used because the courts will dismiss you with 12(b)(6) and not give you another bite at the apple.  After the plaintiff files the complaint, the plaintiff is entitled to discovery, which means that these 12(b) motions are often coupled with requests to stay discovery or to get discovery.  There is also the seldom-used 12(f): a motion to strike!  The court can strike from pleadings “insufficient defenses” or “scandalous matter”.


12(g) create the “hierarchy” of 12(b) motions.  Not all 12(b) motions are the same.  If a party makes a motion under the rule but omits an available defense, they can’t make the motion later.  You basically get one shot to make your 12(b) motions, otherwise you have waived those defenses.  It’s a use-it-or-lose-it rule, except to the extent that 12(h) tells you differently.  12(b)(2), (3), (4) and (5) are disfavored defenses and always waived if not brought up right away.  They all have to do with the propriety of where the lawsuit is taking place and whether it’s proper that you’re there.  12(h)(2) tells us that the defenses in 12(b)(6) and (7) are favored and can be used in any pleading, judgment on the pleadings, or at trial.  But you can’t make the motion a second time.  So beware of this trick!  12(h)(3) says that 12(b)(1) is the most favored defense of all, and can be brought up at any time by anybody, including the court itself!




My opponent files a 12(b)(6) motion for failure to state a claim.  The court denies the motion.  Then they file a 12(b)(3) motion to dismiss for improper venue.  What do you do?  They can’t file it!  They’ve already waived that defense due to the combination of 12(g) and 12(h)(1).  So I respond to this by filing a motion to deny the 12(b) motion on the grounds that it’s been waived by 12(g) and (h)(1).  Nothing happens on its own!  You must raise the issue, or else you can never raise it on appeal (unless it’s subject matter jurisdiction).


Say the other person files the 12(b)(6) and it gets denied, but then they file a 12(b)(7) for failure to join an indispensable party.  This is technical.  What can we do?  They can raise the defense, but they can’t make the motion.  The issue is still alive, based on 12(h)(2), which tells us that we can still raise this.  But 12(h) also says that the issue can’t be raised in another Rule 12 motion.  It must be raised in a different way, like in a judgment on the pleadings or later on at trial.  Realistically, the judge will probably be willing to recharacterize the motion as a motion for judgment on the pleadings.  We don’t want to boot people out of court for labeling their motions wrong!  That’s the whole point of the Federal Rules!


Say the 12(b)(6) is denied, and then they move for the 12(e) motion for a more definite statement.  Is that valid?  Nope.  12(g) says that you have to raise this objection along with your other Rule 12 motions.  So you already waived your 12(e) motion, it will be denied.  But what if they had their 12(b)(6) denied and then tried to do 12(b)(5).  No good, under 12(g) and 12(h)(1).  12(g) says bring them all at once or lose them!  What if they had their 12(b)(6) denied, but then they come back with 12(b)(1)?  The defense is preserved!  Can they do the 12(b)(1) motion?  No, they can raise the defense, but it must be done in some other form.  By practice, the courts allow you to raise this issue by motion, labeling it something different, typically judgment on the pleadings or summary judgment.


What if the other side just goes ahead and files a complete answer?  Then they want to move to dismiss for improper venue.  Can they do it?  Nope!  Rule 12(h)(1) says that the defense is waived if it’s omitted from the answer.  12(g) doesn’t say anything about an answer!  It only says that if you make a Rule 12 motion, you waive everything else.


Think of Rule 12 this way: you receive a complaint.  Here’s what you should do: think about the universe of possible things you might be able to say about the complaint.  Do you have a plausible subject matter jurisdiction argument?  What about personal jurisdiction?  What about venue?  What about process or service of process?  Is there a claim?  Are there parties that need to be joined?  Could you get judgment on the pleadings?  Think about all the stuff.  Then you have to figure out what you must do now in order to not waive it.  Can you save some of the stuff for a motion for summary judgment under Rule 56?  You can present challenges in a lot of different ways.  There are strategic choices that you can make, and there are bad choices you can make.  The Rules are designed to encourage you to do certain things first.  If you don’t do them first, you’re going to lose them.  You must use these defenses either before your answer or in your answer.  If you make a Rule 12 motion, you lose everything else unless it’s saved by Rule 12(h).  That part explicitly gives us the hierarchy.


Rule 15 tells you that you can amend your pleading once before the answer comes back.  But that doesn’t help the defense.  If you notice your mistake quickly, you’ll be able to catch it.  But the amendment option won’t help you much in general.




This is stuff you get to do as a defendant after the complaint is filed.  We know something about answers from Rule 12 talking about the interrelationship between Rule 12 motions and when your answer may be filed.  When you file Rule 12 motions, it delays your answer date.  So you file a Rule 12 motion to avoid having to answer.  You have to file an answer within 20 days of being served if you don’t file a Rule 12 motion.  20 days is a short amount of time!  You always need to check right away when the answer date is.  But the Rules provide a way to extend this date.  You get 60 days to answer if you waive service of process under Rule 4(d).  Pretty much everybody waives service of process these days.


You have a duty, as a defendant, to avoid unnecessary service costs.  The Rules require people who get sued to avoid unnecessary service costs.  One way to do this is to waive the technicalities of service.  The defendant also has to pay for service if they don’t waive it.  There’s both a carrot and a stick!  Also, waiving service doesn’t waive any of your defenses (except of course process and service of process).  So there’s nothing to lose!  Rule 4(d) tells you how you go about doing this.  You attach a waiver of service form to the complaint, ask the defendant to send it to you, and that’s it.  You don’t need to hire the sheriff or a process server.  Nowadays, in corporate litigation, this is mostly done by counsel.  You have a reasonable time, at least 30 days, to return the waiver.  You have 60 days to respond!  A plaintiff might choose not to use this, though, if they’re in a jurisdiction where the state statute of limitations is about to run out.  You may have to be personally served before the clock starts.  As a plaintiff, worry about the statute of limitations.




So we have to do our answer 20 days or later.  In the answer, we’ll do denials and affirmative defenses.  Denials are back in Rule 8.  You can either admit or deny the averments.  If you don’t have enough information and you’re not sure, you can say that too.  When you can only admit or deny part of the allegations, you must do so piece by piece.  That’s where the case comes from, and this is why you try to delay doing an answer.  It’s a painstaking process!  If you fail to deny, you automatically admit!  So be careful!


Zielinski v. Philadelphia Piers, Inc. – Zielinski is on a forklift and he gets hit by Johnson.  It’s a forklift wreck!  Zielinski sues PPI.  The other forklift said “PPI” right on the forklift!  But the problem is that PPI isn’t doing that business anymore!  It’s CCI!  There’s still a relationship between the companies, but technically CCI would have been liable under tort law for the actions of its employee.  Basically, the wrong company has been sued!  What’s PPI’s answer to this allegation?  They deny the whole thing!  The problem is that the allegation contains a lot of stuff.  Of course you’ll deny that your employee was negligent.  They should have denied the first part, that they owned, operated and controlled the forklift!  Then the plaintiff would have realized his mistake and everyone would have been happy.  But PPI is sloppy and doesn’t take the individual allegations separately.  That perpetuates the plaintiff’s misunderstanding.


In discovery, they found out that notice was received the same day as the accident.  That seems to suggest that they sued the right person.  They gave the information to the insurance company after a brief investigation.  They weren’t trying to deceive the plaintiff.  There was no bad faith.  They were answering the questions to the best of their ability and not trying to deliberately hide any information.


So the accident was on February 9th.  The complaint was filed on April 28th.  The answer was filed in May, discovery in June, and a pre-trial conference way later, when they’re outside of limitations: the right person to be sued can no longer be sued!  The court sticks it to the wrong person!  That’s pretty amazing!  The court will allow the wrong defendant go to trial!  The judge will tell the jury that the defendant admitted that they owned the forklift!  This is absolutely untrue and everyone except the jury will know it.  How can that be?  Where’s the justice in that?


The end result here is that the court requires that there is a deemed admission that PPI is the owner of the forklift, which means, essentially, they’ll be subject to liability if it can be proved that they were negligent.  The judge gives us several reasons for this: (1) It was an ineffective denial under the Rules.  A proper denial would have broken down the component parts, which would have been a signal to the plaintiff that the plaintiff sued the wrong party.  The plaintiff could have then amended his pleadings.  (2) The judge finds that there was no bad faith.  This is often a consideration when judges decide what to do on the pleadings.  What really underlies this case is the party in interest here: the insurance company, which insures both PPI and CCI.  As a practical matter, neither defendant will pay the judgment.  The insurance company will pay.  So it doesn’t really matter who gets sued!  The liability will pass through.  But you can’t ignore all the Federal Rules of Civil Procedure to get to that result: so the judge says that it’s an ineffective denial.  But we can see how this fact colors the procedural ruling.  It seems like a harsh penalty, but in reality it may not be since the insurance company pays either way!


Affirmative defenses


Layman v. Southwestern Bell Telephone Co. – The classic defense is the statute of limitations.  Affirmative defenses must be set forth affirmatively!  There’s a big list in the rules.  If you fail to set out your defenses in your answer, you can have big problems!  Bell is laying cable on Layman’s land.  She thinks that they’ve trespassed on her land, causing the value of her land to depreciate.  They dug a hole in her land and buried a cable…hmm.  What’s the response of Bell?  They ultimately claim that they had an easement granted by a previous owner to a predecessor company.  The phone company made a special denial: it’s a general denial.  Bell denied everything and demanded proof of everything in the complaint.  You can actually do this in some states!  But in federal court, you can’t just sloppily deny everything.  Never do a general denial in federal court!  There will be something that you’ve ineffectively denied that gets admitted!  Bell wins at trial because of the easement evidence that the judge lets in.  Was that evidence proper?  It depends on whether they should have told her sooner (in their answer).


Layman argues her case in the Court of Appeals.  She says that an easement must be pleaded as an affirmative defense, but it turns out that it’s not listed in the Missouri equivalent of the Federal Rule!  But we go under the “other matter” phrase of the rule.  The test is that if there are any facts that would let the defendant avoid any legal responsibility, the defendant must put them in the answer.  That’s the case here!  What should have happened is that Bell should have had a general denial in their answer, then their affirmative defense dealing with the easement.  Yeazell tries to point out what motivates the court to find some things as affirmative defenses and other things not affirmative defenses.  Consider the blueprint for the case: the pleadings spell out to the parties what is at issue.  When you get to the trial, Layman has no idea that there will be this easement evidence.  There is a surprise and notice element embodied in the court’s application of this rule.  These pleading rules are used to foster notice and avoid surprise.


What if easement evidence had come out in the discovery phase?  Then there would have been no surprise.  Layman would have had notice and would have been able to properly proceed to trial on the merits.  The court says that Bell should have said up front if they had an easement.  The case isn’t tossed out, but rather it’s remanded for a new trial.


Some states, like New York, codify this idea.  They require that “all matters, which if not pleaded would be likely to take the adverse party by surprise or would raise issues of fact not appearing on the face of a prior pleading” must be in the answer.  This gets away from having to characterize every defense as affirmative or not.  So, if in doubt, plead everything if you’re not sure whether it’s an affirmative defense.  If you think you have any colorable argument for it, list it.  You can always drop it later.  But don’t be stupid!  You might get Rule 11’d.




These relate both to amending the complaint and amending the answer.  This is in Rule 15.  There are three ways to amend: one way for the plaintiff, one way for the defendant, and one way the judge can help you out.  You may amend once “as a matter of course” before you get the answer.  This is basically a plaintiff’s rule.  The plaintiff files a complaint, and you can amend it once before the answer comes back.  If there is no responsive pleading due (like an answer, because there’s nothing that comes after it), you have 20 days to amend it.  Typically, you also have 20 days to answer the complaint, so it’s kind of a mirrored rule.  If you don’t qualify for one of these two windows, you must ask for the leave of the court, which will be freely given as justice requires.  But just what does justice require?


Beeck v. Aquaslide ‘N’ Dive Corp.Beeck gets injured by a waterslide.  Doh!  He sues the manufacturer.  He sues Aquaslide on product liability claims.  They bring in the insurance companies.  They all check out the slides and they’re positive that Aquaslide really made it.  After the lawsuit is filed, Aquaslide answers, and in the answer they admit that they make the slide.  On the basis of the insurance companies telling Aquaslide that it was their slide, they say in discovery that it really was their slide.  The statute of limitations runs!  Now the president of the company goes to look at the slide, and lo and behold, it’s not an Aquaslide after all!  In his deposition, he says so.  After the statute of limitations has run out, Aquaslide wants to amend their answer to change their response as to whether it was really their slide.  They’re obviously out of the 20 day window, so they have to throw themselves on the mercy of the court!  Why didn’t this happen in Zielinski?  It turns out that the Rule didn’t exist then!  That would have been the appropriate procedural remedy if it had existed at the time.


There’s a Supreme Court case on this: Foman v. Davis gives us a test.  Leave to amend will be freely given in the absence of any reason that leave shouldn’t be granted.  Courts mustn’t allow delay, bad faith, or prejudice.  Is there a good reason for why you messed up in the first place?  Will fixing it not hurt the other side too much?  They’ll always be hurt some because your being better off always makes them at least a little worse off.  Let’s apply the law.  Aquaslide is not said to have acted in bad faith because their answer and interrogatory responses were based on the insurance company, and you’d think that their investigation would be accurate!  The court says that “blame should be shared equally”…the plaintiff could have made this discovery in the course of their own investigation…but then again, if the insurance company couldn’t tell, how could the plaintiffs?  Did the plaintiffs really do anything wrong?  There’s a good reason to grant leave to amend, though.


The plaintiff says that there is prejudice, though, because the statute of limitations has run!  The plaintiff can’t turn around and sue the true manufacturer for personal injury.  But the court says that the plaintiff might have causes of action that can get around the statute of limitations, the court says that the prejudice isn’t so great as the plaintiff says.  There’s a later state court suit filed by the plaintiffs against Aquaslide for misrepresentation in their federal pleadings (lying in the federal lawsuit) because it was discovered that the company knew there were counterfeit slides all over the country!  It wasn’t a one time thing!  That’s why the president went to go and look: he knew ahead of time that it might not be their slide.  Armed with that knowledge, the state courts were much more generous with the plaintiffs.


Statute of limitations and relating back


Absent some absolute cutoff, you can always beg the court to amend.  But if the statute of limitations has run, the cause of action is cut off.  Rule 15(c) talks to us about what we can do with regard to amending our petitions and having those amendments relate back to when we initially filed the complaint.  This is a tool to get around limitations.  If we can get our amendment to relate back, then we’ve avoided the statute of limitations problem.  It will relate back if it relates to the same “conduct, transaction, or occurrence”.  This was an unclear, problematic amendment when it was adopted, but now there is more clarity about when it applies.


Relation back of amendments


Moore v. Baker – Moore had a bad result in surgery, and she sues Dr. Baker.  Her cause of action is for lack of informed consent: she claims that he didn’t explain to her adequately what the risks involved in the surgery were.  What happened after the cause of action was filed?  The statute of limitations ran out!  Then Baker filed a motion for summary judgment.  The plaintiff now wants to file her motion to amend her cause of action under Rule 15(c) to include a cause of action for simple negligence.  Rule 15(c) tells us that amendments relate back to the date of the original pleading when the claim or defense asserted arose out of the same conduct, transaction, or occurrence.  But this language isn’t being used the same way as in other contexts!


Why did the judge say that these things didn’t arise out of the same transaction or occurrence?  The amended complaint did not relate back to the original complaint because there was no negligence mentioned in the original complaint.  The doctor wasn’t on notice that he had a negligence claim against him!  The concept behind pleading is that we put you on notice.  But all the doctor knew about was the claim involving informed consent.


Bonerb v. Richard J. Caron Foundation – The plaintiff was injured while playing basketball at the rehab center.  He slipped and fell.  He was involved in a mandatory exercise program.  He claims that the court was negligently managed by the facility.  The statute of limitations runs out.  He tries to amend his complaint with a new allegation of counseling malpractice.  The defendant objects, saying that this claim doesn’t relate back.  The court decides that the original claim and new claim relate to the same facts, and so the motion to amend is granted.


Let us take the two cases above together.  Both people have negligence claims, a statute of limitations that has run, and they both want to amend their complaints.  Aren’t they arguably both wrong?  In the second case, the rehab center is sued for negligent maintenance of a basketball court.  But then, the amended complaint says that they counseled the plaintiff negligently.  In contrast, in the medical malpractice context, if you get sued as a result of a surgery and the claim is one for lack of informed consent, it’s lack of informed consent because something went wrong with the surgery.  Wouldn’t that give some notice that what Dr. Baker allegedly did something bad in surgery?  It doesn’t seem reasonable that the two allegations aren’t part of the same set of facts.  You might argue that these should have been switched.


What are the differences?  Summary judgment was filed in the first case.  How would that make a difference?  It means that discovery has probably come to an end.  The motion for summary judgment isn’t ripe until the close of discovery.  That means this case is coming to an end, and probably an abrupt one.  In this case, Dr. Baker is on the verge of victory.  All of the sudden, he’s hit with a surprise of a new cause of action.  In the other case, discovery may still be going on.  So one reason the two cases are different is the surprise element.  Courts are more willing to let you relate amendments back if it’s not going to be to the detriment of the other side.  Another suggestion has to do with the way the amendments were crafted.  In Moore, we start with the “no informed consent” claim and try to go to a broader claim: general negligence.  But in the rehab case, we start with the general claim of negligence and then try to slice out a particular kind of claim.  Thus, courts may favor amendments that move from the general to the specific.  Two courts look at the same Federal Rule with the same language, but come out differently.  So the Rule doesn’t have complete clarity on its face.


Notice that there is a portion of Rule 15(c)(3) that deals with changes in the party’s name.  The amendment will relate back if you’re simply changing the name of the person you’re suing because you’ve sued the wrong person.  This is what Zielinski did.  If Rule 15(c) had been in operation at the time, this would have been the way to resolve the problem.




“All of the interesting things in procedure relate to joinder.”  We’ll deal with complex joinder issues, but today we must look at the pedestrian issues of claim joinder.  We simply look at a combination of the Federal Rules on the one hand and the issues of jurisdiction and preclusion on the other.  Rule 18 tells us that a party asserting a claim can do so as a claim (regular old plaintiff suing a defendant), a counterclaim (if the defendant has a cause of action against the plaintiff too), a cross-claim (a suit between the defendants), or a third-party claim (like an insurance company or some other party brought in by the defendants).  In contemporary litigation, we may see all of these at once!


How can claims be brought together?  Let’s say a wrongfully discharged employee wants to sue under § 1983 and also sue under state law in Ohio.  Could that plaintiff do it under the rules?  Rule 18 tells us that they can join as many claims as they want against the same person!  So if you’re just looking at the Federal Rules, there’s no problem.  But we have to also look at jurisdiction; in this case, we must look at supplemental jurisdiction.  This requires us to add additional claims against other parties, if needed.  This stems from the Article III description of cases and controversies as interpreted by the Supreme Court in Gibbs.  In Gibbs, we had the same situation: a state claim and a federal tort claim.  Brennan says that they can both be brought if they arise from the same nucleus of operative fact.  Would they be expected to be litigated together in a single proceeding?  The claims we mentioned above seem to go together well.  These claims could be joined properly under both the Rules and the statute.


Could you do a state law car wreck claim with a § 1983?  They are far removed from each other!  Under the writ system, you bring all of your causes of action against a single person if you wanted, even if they were unrelated.  This is permissible under the rule, but not under supplemental jurisdiction.  The statute tells us that we can join other parties.  This is what we used to call “pendant party jurisdiction”.  So it’s okay!  If you’re going to party that would bust diversity jurisdiction, that’s not okay.  So joinder of claims is always okay under Rule 18, but not necessarily under the other statutes and principles that govern us.  Don’t worry about supplemental jurisdiction now, we’ll come back to it later.


Claims are governed by Rule 18, but counterclaims are governed by Rule 13.  There are two types: “compulsory counterclaims” and “permissive counterclaims”.  If a claim arises out of the same transaction or occurrence, you must “use it or lose it”.  In Rule 13(b), we have permissive counterclaims, which means you may bring them and raise claims that don’t arise out of the same transaction or occurrence.


Plant v. Blazer Financial Services – Blazer loaned some money to Plant.  Plant sued based on truth-in-lending (failure to disclose).  The defendants counterclaim for the unpaid balance of the loan.  The plaintiff didn’t pay!  Their counterclaim is that they’re still owed money on the loan even if they didn’t fully disclose.  So is the counterclaim compulsory or not?  One way to look at this is to flip the situation.  If the bank had sued Plant on non-payment of the debt, would her truth-in-lending claim have been compulsory?  It doesn’t seem like she would have lost her truth-in-lending claim if she hadn’t brought it up when she got sued for non-payment.  You wouldn’t think that violating disclosure rules in a loan is part of the same transaction as non-payment.


The court starts with the rule itself, which gives us the test.  Does the counterclaim “arise out of the same transaction or occurrence”?  There’s a laundry list of different tests that can be used.  The court decides to use the “logical relationship” test.  But not every circuit agrees that these two types of claims have to be brought together.  Much like the Rule 15(c) amendment issue, we have the same transactional test that can be viewed by courts quite differently based on the test that they choose and the spin that they decide to put on the facts.  If you were cynical, you might find that the Fifth Circuit is biased towards creditors and against debtors.


Joinder of parties


Say you’re backing out of a driveway and an Upper Arlington garbage truck hits you.  You call a friend who picks you up and takes you to class, but then you and your friend get hit by an Upper Arlington school bus.  Could you file both claims against the city of Upper Arlington together?  Does this arise out of the same set of facts?  Just because you have a common defendant doesn’t typically mean that you’ll be able to join your claims together.  There are some limits on joinder of claims and parties.  These transactional tests that were in force in the claim rules are more rigid when we look at the party side.  Here, we had two separate accidents.  Unless you’re alleging a city policy that they only hire negligent people, you would have to do two separate suits.


Mosley v. General Motors Corp. – How is the situation above, separate acts of negligence against a common defendant, different from this case?  They’ve joined together and they’re filing Title VII lawsuits against GM and their union.  Should these cases proceed together (the ten plaintiffs against one defendant) or should they be severed into ten separate causes of action?  The district court decides to sever.  Rule 20 is the permissive joinder rule, which tells us that all persons may join as plaintiffs if they assert the right to relief “arising out of the same transaction, occurrence, or series of transactions or occurrences”.  Why do we have rules like this?  It’s a convenience and efficiency rule.  Let’s not have ten separate lawsuits if they’re all really the same thing.  The court in Mosley reminds us of Gibbs: the rules want to bring the largest scope you can into a convenient trial package to maximize both fairness and efficiency. 


Why do the plaintiffs want to sue together? This is all a matter of trial strategy and civil rights litigation.  You want the claims joined so you can see a pattern of bad treatment by a common defendant.  You need multiple defendants to be able to testify!  Here, the plaintiffs ask for interlocutory appeal on the district court judge’s decision to sever the cases.  They don’t want to screw up and then have to try the whole case over again.  This is unusual, though.  The Court of Appeals doesn’t have to accept the interlocutory appeal.  But it did here.


The court in Mosley looks at both “transaction and occurrence” and “common question of law or fact” in looking at Rule 20.  They make an analogy to Rule 13(a).  The language is exactly the same, so we figure it must be able to guide us at least somewhat.  Plant used a bunch of different tests in a wishy-washy way.  The court here is willing to look at that as part of an explanation for why the plaintiffs ought to be able to proceed together. The Court of Appeals argues that the plaintiffs all suffered under the same public policy, and that’s why the plaintiffs are logically related to each other.  With the “common question of law or fact” part of the analysis, the court looks to Rule 23(a), the class action rule.  There’s a provision in that Rule that requires commonality of questions in a class.  This isn’t a class per se, but the court decides that the alleged discriminatory conduct becomes the common factual characteristic.


It’s all kind of complicated.  There are different classes of people with different kinds of claims against different divisions.  Does the umbrella of company-wide discrimination hold true?  Lots of civil rights cases proceed as class actions because the plaintiffs represent not just themselves but also others in the company who suffered the same harms.  But this isn’t a class action!  This isn’t a typical way you’d see courts be willing to treat ten plaintiffs with different types of complaints, each seeking relief only for themselves.  What could GM do if they didn’t like the fact that all the plaintiffs are being brought together?  Is there any way they can remedy having all this tried at one time?  Yes!  Rule 21 can bust up joined stuff…this is misjoinder.  Misjoinder doesn’t lead to the dismissal of the actions, but rather severing them and then letting them proceed separately.  The court can also use Rule 42 to do this: it allows for both consolidation and separate trials.  It’s best considered as an efficiency rule.


In general, Rule 20(a) isn’t that active a rule in federal litigation today.  It’s a very liberal rule that allows you to join people together.  There isn’t a lot of litigation over this rule.  There are a lot of tools to sort through the complexities of this rule without litigation.


Price v. CTB, Inc. – Impleader is not to be confused with interpleader or intervention.  The impleader rule, Rule 14, doesn’t have a lot of controversy either.  This case talks about who the defendant can bring in, and we usually think of this rule as a defendant’s rule.  Price hired Latco to build a chicken house.  Price later sues Latco, saying that the chicken house was defective.  Latco says: “It’s not my fault!  It’s the nail manufacturer’s problem!”  So they want to bring in ITW as a third party.  Latco says that to the extent their coop is bad, that liability should be shouldered by ITW.  Rule 14 allows you to do this!  A defendant, in Rule 14(a) can bring in someone “who is or may be liable to the third-party plaintiff”.  The key is that you can only implead them under Rule 14 if the liability is derivative.  You don’t have to admit that you’re liable, and Latco probably said they weren’t.  But they said that if they are liable, the liability goes to the third party.


This is most often seen in an insurance case.  If you’re responsible for an accident and get sued but you’re insured, you’ll implead the insurer.  This is so common that the insurance company usually comes in directly and controls the litigation because they’re the ones who will ultimately pay.  Can ITW implead into this case?  The court lets them in.  There’s a bunch of stuff about Alabama tort law, but we won’t get into that.


Andy gets assaulted by Blair, and Blair’s defense is that it wasn’t him that did it, but Blaine.  Can Blair implead Blaine under Rule 14?  This is not derivative liability.  This is no liability!  Blair claims a defense, and can put on evidence that the other guy did it, but you can’t implead him.  Blaine should be a co-defendant or alternative defendant.


Consider the original set of facts.  Could ITW implead the steel company that provided the steel for the nails?  Let’s check the Rule: is there any reason why we couldn’t do this?  The Rule is designed to bring in parties to whom you may be liable derivatively.  It’s an efficiently rule.  Is the “nail as to steel manufacturer” lawsuit any different than “chicken coop as to nail”?  No!  You can string these along for as long as you want as long as you have a derivative liability relationship.  But the court can still choose to sever these cases if they think that’s most fair and efficient.  But maybe “bad chicken coop, bad nails, bad steel” is an efficient trial package.


What if we have a counterclaim by Latco that Price never paid for the chicken coop?  Can they bring the counterclaim?  This is like Plant.  Is not paying for the chicken coop related to the cause of action for defective production?  We look at our logical relationship test, whatever that means, and it looks like it’s the same transaction.  The coop isn’t being paid for because it’s defective, so the counterclaim would probably be okay under Rule 13.  It’s debatable, though.  Could the farmer turn around and implead the bank for failing to pay the bills?  Sure, it can be done under Rule 14(b)!  It’s a lot shorter than 14(a), but a plaintiff can bring in a third party when a counterclaim is asserted against the plaintiff.  It’s basically just a reciprocal rule.  That’s a perfectly good example of derivative liability.


Some of these claims will get in under supplemental jurisdiction, but others will fail due to poor drafting, oversight, or both!  These situations are pretty much the same, really.  If we erase the defective coop claim and have Latco sue on the unpaid bill as to the plaintiff, Price is acting the same way in that lawsuit as the defendant as he is here as the plaintiff bringing in a third-party defendant related to the counterclaim.


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!


We have jurisdictional problems!  A plaintiff may assert any claim against a third-party defendant that arises under the same transaction or occurrence.  After summary judgment, the power company has dropped out, and all that’s left is the claim against Owen.  But there is testimony that Owen actually has its principal place of business in Iowa!  Diversity is smershed!  We have Iowa on both sides of the “v”.  What do we do?  Isn’t this just a Zielinski issue?  The court in that case considered it “deemed admitted” that the defendant owned and operated the forklift in question.  Why can’t we do that here?  The lower courts try to stick it to Owen due to deficiencies in their pleading and strategy.  The Rules tell us that subject matter jurisdiction can be raised as an issue at any time, including at trial.  How do we balance a Rule that says this is a favored defense against the charge that Owen was trying to be manipulative and mislead the other party until the statute of limitations had run?


What should the court do in this situation?  On the one hand, the federal courts are courts of limited jurisdiction.  If the court doesn’t have subject matter jurisdiction over the case, theoretically the court has no power over the defendant.  It’s all a matter of whether the court will give substance to that rule of law or try to ease out of it.  The Supreme Court views it as a diversity issue.  But recall the source of diversity jurisdiction: Article III gives the federal courts power to try cases “between citizens of different States”.  It doesn’t say anything about complete diversity.  Statutory jurisdiction comes from 28 U.S.C. § 1332, which has the same language.  But decisions like Strawbridge give us the rule of complete diversity, where we interpret the statute to mean that you can’t have a party on one side who is from the same state as the other.  Justice Stewart says that this is different from the Rule 14 issue in that here we have a non-federal claim asserted by the plaintiff that could have all been brought in state court.  When you use impleader, you may not have other options because you weren’t the master of the complaint.


All of this answer that we get from Owen v. Kroger is later codified by the supplemental jurisdiction statute: 28 U.S.C. § 1367.  It’s difficult.  The general rule is that there is supplemental jurisdiction over claims and parties that are part of the same case or controversy in a constitutional sense.  This includes joinder of additional parties.  That’s an efficiency rule.  What makes the statute difficult is that this is the general grant of power that is then restricted as to certain types of claims brought in certain types of ways.  Subsection (b) takes away certain types of jurisdiction.  You can’t get supplemental jurisdiction when jurisdiction is based only on 28 U.S.C. § 1332 (diversity jurisdiction) and when you’re trying to join up people (in certain ways, like Rule 14, 19, 20, and 24) who would destroy complete diversity.  So (a) says that you have supplemental jurisdiction over claims and parties, but (b) says that if you don’t have diversity, you don’t have supplemental jurisdiction, as long as you’re within certain categories.


So the intent of Congress was to codify the result of Owen v. Kroger.  How did they do?  In Owen, all the claims arise from the same case or controversy.  We could have three different cases if we wanted to, but it’s more efficient to put them all together.  What about OPPD’s claim against Owen?  The statute generally says that we’ll grant jurisdiction for anything that comes from the same case or controversy, but it’s a diversity case, and you don’t have supplemental jurisdiction over claims made by plaintiffs against third parties.  But this is a claim by a defendant, so there’s no problem!  What if Kroger had a federal question claim she could raise against Owen, like a federal statute about the operation of cranes?  Could she bring that claim?  § 1367 says this isn’t based solely on § 1332, so it’s good!


What if Owen sues Kroger for vandalizing the crane?  The defendant can certainly plead that claim, and § 1367(b) wouldn’t get in the way because it’s not the plaintiff’s claim.  It’s a claim by a third-party defendant against a plaintiff, which doesn’t fall into any of the § 1367(b) excluded categories.  Therefore, it must be okay!  If that’s okay, can Kroger then bring the wrongful death claim?  Is it a compulsory counterclaim?  Check out the statute.  Yeazell says that Kroger is now acting as a defendant, but Fairman says that the statute doesn’t allow this.  Kroger is still a plaintiff!  It looks like the wrongful death claim is still a claim made by a plaintiff against a person made a party under Rule 14.  This is one of the big problems of the statute: plaintiffs’ defensive claims barred by § 1367(b).  It doesn’t make any sense for them to be precluded, because the plaintiff was acting as if it were a defendant.


Say we have a plaintiff from Ohio with a state negligence claim against a Texan.  Let’s say the plaintiff uses Rule 20(a) to join another co-plaintiff from Texas who then turns around and asserts another state negligence claim against the Texas defendant.  This can’t be possible!  This is the absolute subversion of complete diversity.  The original lawsuit is okay, then you add someone later who will mess up complete diversity.  But, according to § 1367, this is allowed!  This is a claim made by a party joined under the Rules against the defendant!  Weird!  It’s not a claim by a plaintiff against a person made a party under Rule 20.  It’s a claim by a plaintiff against a defendant!  Had the drafters of the statute thought about it, they would have included this situation.  This is the so-called “gaping hole”!  No court has ever allowed this to go forward.  It has always been rejected on the ground that it’s so gross a violation of the concept of complete diversity that no matter how clear the statute seems on its face, decisions like Strawbridge don’t allow it.  There are concerns about this, though.


The Rule of Zahn


This rule says that in a diversity class action, every member of the class must exceed the amount in controversy ($75,000+).  It will be hard to put together diversity class action unless they’re major mass torts.  The problem is that the statute doesn’t say anything about Rule 23.  The way it’s constructed, you would only need one person to meet the $75,000 requirement, and then you could just bring in everyone else as supplemental.  The legislative history of the statute actually says that they want to preserve the rule of Zahn.  But the statute doesn’t say this!  The Fourth, Fifth, Seventh, Ninth, and Eleventh Circuits have said Zahn is no longer good law after § 1367.  The First, Third, Eighth and Tenth Circuits say Zahn is still good.  The Sixth Circuit sided with the Circuits that say it’s not good law.  Fairman blames the sloppy statute drafters!


You must read the supplemental jurisdiction statute very carefully.  Who makes the claim and who is brought in makes a difference as to whether the court has jurisdiction.  This will very likely be on the exam.


Compulsory joinder – Rule 19


This has also been described as joinder of “necessary and indispensable parties”.  Rule 20, permissive joinder, allows you to bring in essentially everybody.  Rule 19 is talking about when people have to be brought in, and if they can’t be brought in, what the court should do.  Rule 19(a) determines whether they’re a party that is necessary for complete adjudication.  If complete relief can’t be given to the people who are already parties without another person, or the person could be subjected to multiple or inconsistent obligations in their absence, then they had better be brought in.  If their relationship to the lawsuit is so important that the people in the lawsuit can’t get relief or they would be hurt if they’re not brought in, then they’re necessary parties.


In Rule 19(b), the court has to decide whether the action should proceed or be dismissed.  Do we have to dismiss the lawsuit when we lack a person?  There are certain factors the court considers: (1) the extent to which a judgment will be prejudicial to parties already involved in the lawsuit, (2) whether the judgment will be adequate without that person’s interest being represented, and (3) whether the person will still have a good remedy if you dismiss them for non-joinder.


Temple v. Synthes Corp. – This case is trying to tell us that the Rule has two parts in a sequence.  If you don’t fit in part (a), you never get to part (b).  The plaintiff has spine surgery.  There is a plate and screw device implanted that broke.  The guy with the hurt back is a Mississippi resident and the hospital is in Louisiana.  Synthes is a Pennsylvania company.  Who do we sue?  The plaintiff sues the manufacturer in federal court, and sues the doctor and hospital in state court.  The plaintiff chose to have two different lawsuits going on about the same subject matter in different forums!


There’s no problem with personal jurisdiction for filing both suits in state court in Louisiana.  There’s a Rule 12(b)(7) motion to dismiss!  This tells you something about Rule 19.  It’s a joinder of parties rule, but it’s used by defendants to get lawsuits dismissed.  The defendant says that the lawsuit must be dismissed because there aren’t enough defendants to sue!  The motion to dismiss is based on non-joinder of the hospital and doctor, who arguably must be joined.  Could Temple have brought everyone into one lawsuit?  Sure!  It’s the same transaction or occurrence.  There’s personal jurisdiction in Louisiana because the state and federal court cases are filed there.  Subject matter jurisdiction would be diversity: Mississippi versus Pennsylvania and Louisiana.  This lawsuit could go forward.


But if Synthes wanted the doctor and hospital in the suit so bad, why didn’t they just implead them under Rule 14(a)?  Because impleader must be based on derivative liability.  If there was a contract between Synthes and the doctor and hospital, then there might be a chance to implead them, but there’s no basis for derivative liability on the facts that we know them.  So why does Synthes want them involved in the lawsuit?  If the plaintiff loses the federal suit, he doesn’t necessarily lose the state suit.  We have to think about strategy here.  What’s the risk that the defendants are facing when they’re separated?  They could both get hit because it’s two different causes of action!  Typically, as a plaintiff, you would want both defendants in the same lawsuit because they’ll make your case for you.  Factually, it turns out that Synthes had such a close relationship with the doctor and hospital that they thought it was unlikely they would point the finger at each other.


How does the Supreme Court deal with this issue?  Are the hospital and doctor, as the manufacturer claims, parties that have to be joined?  It’s not even a close case!  The district court went immediately to Rule 19(b) to look at the prejudice factors, but they failed to make a determination under Rule 19(a) that they were necessary to begin with.  By avoiding the threshold question, they circumvented the Rule, according to the Supreme Court.  You need to find a “home” for yourself in Rule 19(a) before you get to the balancing test in Rule 19(b).  The Fifth Circuit was so careful in its analysis that it didn’t even read the notes to the Rule!  Joint tortfeasors are not necessary and indispensable parties!  There aren’t that many parties that are truly indispensable.


Let’s say for example, a husband and wife own land a buyer wants to buy it.  He enters into a contract with the husband only.  There is a breach, and the buyer wants specific performance.  Is the wife going to be a Rule 19 party?  Is the wife a necessary and indispensable person?  There’s no way on these facts that the buyer can get specific performance of the land contract if it’s jointly owned by the husband and wife.  Without the wife being there, the court can’t adjudicate the wife’s half-interest in the land.  This is something brought up by the defendant trying to get out of the lawsuit rather than the plaintiff trying to join other parties.  Other examples would include people with joint interests in property, joint obligors/obligees, represented parties and limited pools/multiple claimant.


Helzberg’s Diamond Shops v. Valley West Des Moines Shopping Center Helzberg’s made a lease with the shopping center that provided that only three full-line jewelry stores can be in the shopping center.  Lord’s gets a lease as a specialty jewelry store, but then it turns out that they intend to be full-line in breach of the lease with Helzberg’s.  What does Helzberg’s do?  They go for an injunction in federal court to keep the shopping center from breaching the lease.  The basis for subject matter jurisdiction is diversity.  The shopping center moves to dismiss because they think under Rule 19 Lord’s is an indispensable party.  The motion is denied.  It does seem like this case has a lot to do with Lord’s.  This was an appeal of the grant of an injunction.  We don’t know what the result will be on the merits.  The Court of Appeals is taking up an appeal under a special interlocutory appeal statute.  So is Lord’s a Rule 19(a) party?  Do they clear the first part of the Rule?  Sure.  They’re a Rule 19(a) party…more specifically, Rule 19(a)(2)(i).  But they are considered necessary, but not indispensable.  It’s not necessary to dismiss the lawsuit under Rule 19(b).


The contract between Helzberg’s and the shopping center cannot adjudicate all of Lord’s rights.  If the injunction holds, Lord’s will have to file their own suit against the shopping center.  Is the shopping center hurt?  The opinion says that it’s their fault for getting into two contracts that appear to be inconsistent.  They basically say: “tough luck”.  With the Helzberg’s judgment in hand, Lord’s would sue the shopping center for breach.


Are there other things the court could do?  They could have dismissed the lawsuit.  Is there a place where this whole lawsuit could go on?  It could maybe go on in Iowa.  The mall is physically located here.  There is a transfer of venue statute that allows them to pack up the case and move it to Iowa district court instead of Missouri.


Let’s change the situation, and make Lord’s from Missouri.  The shopping center wanted to exercise supplemental jurisdiction over this claim against Lord’s.  Could they do so?  § 1367(a) tells us that there is supplemental jurisdiction over the same case or controversy, but the case is basely solely on diversity.  This doesn’t come under the technical language of the rule.  Helzberg’s can’t exercise a claim against Lord’s.  But the shopping center is okay.


We left off with Rule 19 and “necessary and indispensable parties”.  Rule 19(a) says they must be someone you can’t go without.  If they meet this category and can be joined, they are joined, as long as there is no jurisdiction problem.  But the problem is what happens if they destroy jurisdiction.  In the first case, the court skipped over the (a) inquiry altogether and went to the (b) inquiry.  That’s wrong, and we learn this from the Court of Appeals, which tells us that joint tortfeasors are never indispensable parties.  But we know that a husband and wife would be indispensable parties for this purpose.


Another example would be when there is a dad who set up a trust for himself and his kids, and the dad wants to sue the trustee for trust abuse.  Are the kids Rule 19 parties?  What if the kids are already adults?  Can complete relief be given in the kids’ absence?  Sure.  Will there be multiple or inconsistent obligations without the kids?  No.  What about impeding the kids’ interests?  It may depend on how we classify the various interests.  The kids are Rule 19 parties, because the dad could ask for some kind of relief that would affect the income stream at the expense of the remainder of the corpus of the trust, which would in turn affect the kids’ remainder.


We ended up with Helzberg’s.  There was no question that its interests would be impeded if Lord’s was in the case.  They sue the mall, not the other jewelry store.  There is no question that the other jewelry store is a necessary party, but, in equity, should the action proceed or be dismissed?  You could also transfer to another venue that would be more appropriate.  The court could allow the lawsuit to go forward if it could cobble together ways to limit the prejudice against the parties.  In this case, the court decided that the mall got itself into its own mess, and it can sort it out itself.  The conclusion is that Lord’s is a Rule 19 party that can’t be joined, however, the lawsuit is allowed to go forward.


Intervention – Rule 24


Rule 19 has to do with what we do with parties who somebody wants to bring in from outside.  Rule 24 has to do with outsiders butting in to a lawsuit where nobody wants them.  The Rule has two parts: a mandatory part and a permissive part.  There’s 24(a), intervention of right.  If you’re timely, you shall be allowed to intervene where you claim an interest such that if you’re left out that interest could be impaired, unless you’re already adequately represented by someone who is already there.  To intervene permissively under Rule 24(b) when your claim has a question in common with the main action (a very soft standard!).


If a court wants someone to intervene, they can almost always create a justification under Rule 24(b), because there will almost always be some common question of law or fact.  The district court will almost never be reversed on appeal because the standard of review is abuse of discretion.  There is not a whole lot of litigation activity in the 24(b) area that’s helpful to understand the Rule.  You have a relatively soft standard that is efficiency-driven and is very hard to overturn.  So much of the litigation activity is in 24(a): what happens if someone wants to intervene as of right and is denied, and then argues on appeal that they were wrongly kept out?


Natural Resources Defense Council v. United States Nuclear Regulatory Commission – Here the activity is in Rule 24(a).  What happened?  There are lots of potential parties here.  The NRDC (an environmental group) is suing to keep the NRC from issuing licenses to run uranium mills without first preparing environmental impact statements.  The NRDC also sues the New Mexico equivalent agency.  The group tells them that they have to do their job!  Kerr-McGee is a uranium miner.  There’s also the American Mining Congress, United Nuclear, and a bunch of other companies.  They want licenses!  They want to intervene!  They argue that the people who will be affected by the decision don’t have their interests represented.  The district court says yes to United Nuclear, but they keep everyone else out.  Kerr-McGee and the American Mining Congress appeal, and the others don’t.


What’s different about United Nuclear than the other parties?  The district court only let that one party in.  They are the company that already was granted a license before the suit started.  The court argues that the other companies are adequately represented by United Nuclear.  The NRDC is trying to enjoin the issuance of that license because it was issued without an environmental impact statement.  That was the event that led to the lawsuit in the first place!  So United Nuclear could really be affected!  It’s no wonder they’re included.


Why was Kerr-McGee rejected?  As a practical matter, their interests must be impaired.  It was argued that Kerr-McGee wasn’t a party to the lawsuit, therefore they wouldn’t be bound by any decisions made in the lawsuit.  They would arguably be free to litigate the same issue in their own suit.  The district court accepts this argument, and the Court of Appeals rejects it.  The Court of Appeals notices that, as a practical matter, even though Kerr-McGee isn’t bound, it’s unlikely that the Tenth Circuit would come to a different conclusion in a similar lawsuit as to a different company.  The Tenth Circuit will use stare decisis to decide the subsequent cases!  That’s the sort of “practical” impairment courts look for.  But why isn’t Kerr-McGee adequately represented by United Nuclear?  They’re different because one has a license and the other is only a prospective licensee.  Maybe United Nuclear would be willing to settle the other mining companies out for their own benefit.  The divergence of interest need not be great to say that one party doesn’t represent the other.  The court doesn’t seem to put a lot of weight on this prong, according to Fairman.


So why wasn’t the American Mining Congress allowed to intervene?  They’re the trade association for all the mining companies.  Don’t they have the most interest involved here?  It doesn’t matter if the court says environmental impact studies are required!  They’re not a business, they’re a trade association.  They do have some interest, and it may be more broad-based than the other potential parties.  Will that interest be impaired?  Sure, to the extent that they are the representatives of a constituency.  Are they adequately represented in the suit?  The district court says no way, but the Tenth Circuit brings them in to represent all kinds of mining companies.


Gulf, Anaconda, and Phillips didn’t appeal.  If they had appealed, what would the Tenth Circuit have done?  It would depend on whether they were adequately represented because there’s no question that they have an interest that could be impaired.  We have a big company, a small company, a company with a license, a company without a license, and a trade association to represent all the others.  But why not just bring them all in?  The other companies are defendant interveners who are trying to prevent the environmental impact studies from having to be performed.  The most entities you get, the more likely you’ll get extraneous issues creeping into your lawsuit.  So it’s not surprising that Gulf, Anaconda and Phillips don’t appeal, because Kerr-McGee or the trade association could represent their interests.  They’re better off taking the free ride!


This is typical of Rule 24(a) action in public law.  What if someone is hurt at a stadium fireworks show and sues the stadium, and then another person wants to intervene as a plaintiff?  The second person won’t be bound by the first lawsuit.  But if the outcome of the first lawsuit was that the stadium wasn’t negligent, it could have implications for the second, third and fourth lawsuits.  But no judge would allow the second person to intervene in the lawsuit because it’s private litigation!  The courts are much less likely to allow intervention by strangers in private lawsuits than in public lawsuits.


Rule 24 intervention has to do with other people trying to “muscle” into lawsuits nobody wanted them in.  To intervene, you need to be timely, you need to have an interest in the matter that may be impaired, and you can’t already be adequately represented by someone else.  What if a public lawsuit gets settled through a consent decree?  Consent decrees are court orders that courts have continuing power to enforce.  All judges hold hearings on whether they should grant consent decrees.  They may hold them open to anyone who thinks they may have an interest.  What if Kerr and United Nuclear protested the consent decree but their arguments were rejected?  Could they sue the NRC?  The only way they could be precluded from bringing a lawsuit is if they were parties to another lawsuit.  But they weren’t; they were just participants in the consent decree hearing.  The effect of such participation is what the next case is all about.


Martin v. Wilks – Up until this case, there was scholarly debate and judicial indecision as to who has the burden of bringing parties into lawsuits.  Is it the parties already there who have the obligation, or is it the obligation of outsiders to monitor where their interests will be affected?  This case is good law for everything except the factual situation in this actual case.  The case starts out as a lawsuit by the NAACP against the city of Birmingham and other government entities, claiming that they are discriminating in their employment practices under Title VII.  The parties want to enter consent agreements with the city.  The court has a hearing on it and gives notice of the hearing.  The Birmingham Firefighters’ Association filed a brief in opposition to the agreement, and then tried to intervene.  Their attempt to intervene was denied as untimely, and then the consent decree was approved.  The white firefighters don’t like the affirmative action plan.


Then we have a new group of parties, featuring Wilks.  They sue the city for reverse discrimination.  Wilks basically has the same interests as the BFA.  Wilks wasn’t a party to the original lawsuit and wasn’t bound by it.  Wilks’ lawsuit is dismissed.  At the district court level, the NAACP argues that Wilks and the white firefighters were bound by the decision that came out of the original lawsuit because they had notice (and in fact they participated) and they didn’t try to intervene in the lawsuit until it was too late.  The district court accepts this, but they’re also protecting their own consent decree.  What would Wilks and the others argue?  They argue that they weren’t parties to the lawsuit, they aren’t bound, and thus they must be able to attack in a new lawsuit.  The Eleventh Circuit buys this argument on appeal.


The Supreme Court tells us that the Eleventh Circuit is right.  Why?  It’s a battle between two different rules.  Are we going to have Rule 19 be the important Rule for who is brought in or excluded from cases, or will it be Rule 24?  The burden is very different.  Under Rule 19, it’s the obligation of the parties already present to identify the indispensable parties and bring them in if possible at the risk of dismissal.  But under Rule 24, it’s up to the outsiders to make that decision and see if there is someplace that they want their interests protected.  In short, it’s their responsibility to “butt in”.  The Rehnquist 5-4 majority says that joinder (as opposed to notice) is traditionally the way that parties are subjected to the jurisdiction of a court.  The idea is that the parties who are already in the lawsuit have a better idea about just who they want in the lawsuit and just who they want to bind.


Stevens, in dissent, says that sideline sitters get what they deserve: actual notice plus the opportunity to intervene means you can’t complain.  If you could have butted in, you should have.  There is power that comes from the preclusive effect of judgments and their binding nature that makes courts reluctant to expand it to parties who aren’t in the lawsuit.  This case says that if you’re not a party to a lawsuit, you’re not bound and you can challenge the result again and again.  As a litigant, this becomes part of your lawsuit.  Who do you want bound?  If you leave a party out, they can challenge your result.  Why not bring everyone in?  You might not know who’s in the group you would be bringing in.  Later, Congress changed the law of civil rights to prevent ongoing challenges to civil rights settlements, recognizing that there could always be a group not party to the original lawsuit that could prevent closure.


Interpleader – Rule 22


Here we have a situation where you’re holding on to some kind of property that’s not yours and you don’t know who it belongs to.  You want to protect yourself from multiple, inconsistent judgments.  Impleader is third-party practice under Rule 14.  Intervention is “butting in” under Rule 24.  Interpleader comes in two variants: (1) statutory interpleader and (2) Rule interpleader.  Interpleaders are great, but only if you get all the parties.


Statutory interpleader is more common.  The statute tells us the federal courts have original jurisdiction over interpleader actions with $500 in controversy and minimal diversity (only as between claimants).  You deposit the thing with the court.  So this is different than regular old diversity jurisdiction, where you need complete diversity.  Where will these lawsuits happen?  There is an interpleader venue statute, § 1397, which says you can bring the action in a district where one or more claimants reside.  How about personal jurisdiction?  § 2361 gives us nationwide service of process!  You can issue process or all claimants and stop other lawsuits in order to bring everybody together.  Everything about these statutes is designed to make it easy to bring everyone together.


On the other hand, we have Rule interpleader.  It’s a simple Rule.  The Rule doesn’t take away from statutory interpleader, but it’s still governed by the rule of complete diversity.  The only time this is used is if all your claimants are in one state and you can’t use statutory interpleader.  Otherwise, it’s kind of a “dead Rule”.


Cohen v. The Republic of the Philippines – This is all about Imelda.  Besides the shoes, she had four fancy paintings.  She gave them to Braemer, an art dealer in New York.  Braemer consigns the paintings to Cohen, who is also in New York.  Cohen gets stuck with the paintings, and they’re not his.  He wants to return them to their rightful owner.  But who’s the rightful owner?  He brings an interpleader action under § 1335 against Braemer and the Philippines.  (The Philippines claims that Imelda used government funds to get the paintings, and so they belong to the people of their country.)  How can we get the Philippines into the interpleader at all, given that there must be claimants of diverse citizenship?  Well, the claimants are minimally diverse.


Cohen puts the art in the court registry, saying he’s the stakeholder but he has no interest in the paintings.  Why does Cohen want to do this?  If he gives the paintings to the wrong person, Imelda or the Philippines can come in and sue him!  He might be liable for the value of the paintings!  Only interpleader can protect him!  Imelda tries to intervene under Rule 24.  But why didn’t Cohen interplead Marcos in the first place?  We can’t serve her!  We have nationwide service of process, but not worldwide service of process!  They have to wait for Marcos to subject herself to the power of the court.  But they can’t go and make her join.


Should we allow Marcos to intervene?  Yes.  She’s timely.  She has an interest in the paintings.  Could her interest be impaired if she’s not a party to the lawsuit?  Yes, because the paintings could go to someone other than her if she’s not a party!  The only way to get it is to become a party.  Will anyone else in the lawsuit represent her interests?  No way!  Everyone else is pretty much against her.  This is a classic case where someone would want to intervene as a matter of right under Rule 24(a).  If we could have served her, she would have been interplead in the first place.


Class actions – Rule 23


Class action is an area that warrants our study.  The more interesting aspects of procedure often relate to class actions.  Class actions change the focus of litigation.  The system was designed with the single plaintiff and single defendant in mind.  When the Rules were created, class actions were not much more than an afterthought.  Class actions were rarely used until the amendments of 1966.  Now, we have a class of plaintiffs unified against a single defendant.  When you have a large number of plaintiffs, the person in control of the litigation changes.  Most of the controversy arises out of class actions because of the increased importance of the lawyer running class litigation.  It shifts the focus from trying cases to settling cases.  Instead of providing a device to efficiently deal with cases that would be filed anyway, the class action is viewed by some as a device that drums up cases that would never be filed but for the device.  Class actions are thus a frequent target of tort reform proposals.  The Rules themselves were changed in December 2003 to reflect these concerns.


Start with the text of Rule 23.  There are prerequisites to a class action.  If a class action meets the prerequisites, then it must be maintainable.  First off, the class must be so numerous that joinder of all members would not be practicable – numerosity.  The members of the class must have common questions of law or fact – commonality.  The claims of the representatives of the class must be typical of all members of the class – typicality.  The representatives must fairly and adequately protect the interests of the class – representativeness.


How many people do you need?  It depends.  You’ll never get a class that’s a problem because it’s too numerous.  The problem is when you have too few members.  There is not much action in the numerosity characteristic.  Commonality deals with whatever issue is at the heart of the class action.  Typically, there isn’t much of a problem because you’ve thought about what legal issues the class has.  Typicality says that if the class as a whole has certain characteristics, the named plaintiff must be like the people in the class.  Representativeness has two parts, but tends to hinge on the adequacy of legal counsel.  Class litigation is driven largely by the lawyers involved, and they must have the experience and resources to adequately handle the litigation.  Before class litigation begins, a court will conduct an analysis as to each of these factors.


Next, we ask whether the class can be maintained under Rule 23(b).  The drafters of the 1966 amendments had three distinct examples in mind of when they thought classes would be appropriate, and then one catch-all category.  The catch-all has caused most of the problems.  A 23(b)(1) class is one where separate lawsuits would basically violate Rule 19.  Basically all Rule 23(b)(1) is trying to do is use a Rule 19 standard when you’ve met the prerequisites of the class: lots of and lots of plaintiffs who are too numerous to join.


Here’s an example of 23(b)(1)(A), incompatible standards of conduct.  Say a city wants to issue bonds to build a stadium.  A group of citizens are opposed to the issuance of the bond, and there is a group in favor of the bond.  If one sues to enjoin the issuance of the bond and the other sues to compel them, there is the risk that if one suit goes forward, the city will be under a court order not to issue the bonds but also to issue them, meaning they would be subject to inconsistent obligations.  You avoid this by bringing the parties together as a 23(b)(1)(A) class.  Here’s an example of 23(b)(1)(B): it’s kind of interpleader writ large.  There are limited funds.  Say there is an insurance policy with lots of claimants who will exceed the value of the policy.  If you couldn’t use interpleader, you could use 23(b)(1)(B) instead.  There is almost no litigation over Rule 23(b)(1) classes.  There are rarely parties so numerous that they can’t be joined.  Joinder takes care of 23(b)(1)(A), and interpleader tends to take care of 23(b)(1)(B).


Then there’s a 23(b)(2) class.  This is, in essence, a class asking for injunctive relief.  They had cases like Martin v. Wilks in mind: civil rights litigation.  The firefighters wanted to represent themselves as well as future firefighters who the city might discriminate against.  We can call this an injunction class.


The 23(b)(3) is the catch-all class.  It’s a loose rule that gives a lot of discretion to the district courts.  This is where the problems have come in.  If the court feels that the class members have enough in common and that a class action is a better way to resolve the controversy than separate suits, then they can allow the class action to be maintained.  Courts don’t always go through the listed elements.  They ask: “Are there small claims such that people don’t have enough money to sue individually?”  Then we have an efficiency class.  “Do we have mass torts?”  This would include asbestos, tobacco litigation, and so on.  Wright didn’t think this was the right way to do it.  In the context of classes, 23(b)(3) is an efficiency class.  For the other types, you must fit into the criteria.  Rule 23(b)(3) gets special treatment.  The class issues must predominate over the individual issues.  That’s not so for Rule 23(b)(1) and (2).  The class action must be the superior way to do the trial.  Finally, the class action must be manageable, which isn’t necessary under the other classes.


But there are other requirements now embedded in Rule 23(c).  There has always been a requirement in this section to say that the court must hold a hearing on whether to certify the class.  Now it says that they must do so at “an early practicable time”.  It doesn’t have to be done first, but it must be done early in the litigation.  The problem is discovery: once you qualify as a class, you’re entitled to get discovery.  If the defendant isn’t certain whether they’ll have to litigate discovery, they’ll have to spend a lot of money preparing to do so, which places them under settlement pressure.


Rule 23(c)(2)(A) is a new Rule that tells us that the court may direct appropriate notice to the class.  There used to be no notice requirement.  All of us are probably bound by all sorts of classes that we have no idea we’re bound to.  We’ll never know until we file an individual lawsuit.  But if you’re a Rule 23(a)(3) class, the court must give the best notice practicable, including individual notice, to everyone who they can.  This is a heavy burden!  The plaintiff must bear the cost of individual notice.  If claims are really small and plaintiffs are really numerous, the cost of providing individual notice may exceed the recover cost.  This can effectively insulate defendants from suit.  So the notice cost is not to be discounted!  The court must exclude from any class any member who requests exclusion.  If they request exclusion, then the effect of any class judgment doesn’t bind them.  This is called an opt-out right.  When you get notice, you can choose to opt out of the class.


Say a university wants to raise tuition for only out-of-state students.  The SBA president, who is an in-state student, wants to file a lawsuit to enjoin the fee increase.  What’s the problem?  Will this plaintiff meet the prerequisites of Rule 23?  The class is probably numerous enough.  It would consist of all out-of-state students who will pay the tuition increase.  Would the class have a common issue of law or fact?  Sure.  They are all worried about the tuition increase.  Is the SBA president typical of the members of the class?  Nope.  Will he be harmed by the out-of-state tuition increase?  Doesn’t he represent the students as SBA president?  Well, how hard is he really going to litigate on behalf of his class when he has no stake in the class?  A court would probably say that he is neither typical nor representative.  If this were going to be a class action, it would have to be a 23(b)(2) class because this student is looking for an injunction.


Let’s say an out-of-state student files a lawsuit asking for reduced tuition.  Say the student files the lawsuit as an individual.  What’s the problem with filing an individual lawsuit?  The student’s stake is relatively small.  The tuition increase is probably not enough to make it worth an individual suit.  What’s a strategic reason for pursuing this as a class action?  One problem is that you can drag out the litigation until it’s moot (the student graduates).  Also, you get much more leverage when you bring a class action than when you only bring an individual suit.  But if we define a class of both present and former students, then the issue will always be live.  You’ll band together for leverage and ask for money damages.  What happens to the class?  They must be a 23(b)(3) class.  When you ask for money, you’re a (b)(3) class, which means you’ve brought in all the burdens of (b)(3).  You have the burden of individual notice.  You must show that this is the best way to do the litigation.  You must show that it’s manageable.


Rule 23 sets up two different categories: the prerequisites under Rule 23(a), (1) numerosity, (2) commonality, (3) typicality, and (4) representativeness, and maintaining your class status under Rule 23(b), (1) inconsistent adjudication classes, (2) injunction classes, or (3) efficiency classes.  If you come under the Rule 23(b)(3) category, there are extra requirements that are restrictive and expensive.


Communities for Equity v. Michigan High School Athletic Assn. – This is a pretty good illustration of how most courts deal with Rule 23(a).  This case churns through each of the categories of the rule to see if the categories are met.  That’s what the case suggests, but the notes suggest that there is much more of a “peek” at the merits where you decide whether you want the case to go ahead.  This is especially true with the issues of typicality and representativeness.  What’s at issue in this case?  There’s a Title IX claim that the Michigan High School Athletic Association discriminated against female athletes.  The Athletic Association fails to sanction certain girls’ sports, makes girls play non-traditional, shorter seasons, on inferior dates, in inferior facilities, and with inadequate resources.  They have a bunch of complaints.


They try to certify a class of “all present and future female student athletes enrolled in member high schools who participate in interscholastic athletics or who are deterred from participating in interscholastic athletics” due to discrimination.  This is typical of the way a class will be described, which is by way of characteristics.  This class is quite sweeping.  It includes present and future female students.  It includes those who participated and those who didn’t participate because of the discrimination.  The class is limited to people who were harmed by the defendants’ conduct.


The court must decide whether this lawsuit will meet the class characteristics.  This is the sort of thing we would want a class for because it would become moot at the time an individual female student plaintiff graduates.  So we have an organization trying to deal with the class issues on behalf of all of these female students.


There is no problem with numerosity here.  There are lots and lots of present and future students.  There are a bunch of common issues of law or fact.  Though the different types of complaints might apply differently to different individuals, there must be at least one issue common to all the class members.  What about typicality?  No one is probably going to suffer all the harms.  That’s why they let a community group go forward as a collective representative.  But it is likely they will later add specific, named students who suffered some of the specific harms listed.  Also, some of the class members might have competing interests.  The remedy that might be crafted might be good for some class members and not others.  How do we solve the problem?  You can divide the class into subclasses under Rule 23(c)(4)(B).  You could have subclasses based on people who fall into different subcategories.  How about representativeness?  You wouldn’t be part of the class if you’re not adversely affected.  That’s why you include that language: to avoid representativeness problems.  Much care goes into how you define the group!  You can define away all the legal problems if you’re careful.


There is also the MHSAA.  They’ll represent the high schools’ interests directly.  They will be protecting the status quo and all of those students who are happy with the way things are now.  Wright says that as long as there’s a representative for the status quo and one for the people who want change, you can maintain a class action.


So the Rule 23(a) criteria have been met.  This is a Rule 23(b)(2) class because they’re seeking injunctive relief.  Let’s say that the girls lose on the merits.  Let’s say a new female student moves to Michigan later and sues independently.  They would be precluded from suing because the lawsuit bound all future students!  How can that be?  That student had no notice!  The law says that the student’s interests were already adequately represented by the parties in the lawsuit.  The future student is treated like a party, even without notice.


Heaven v. Trust Company Bank – What’s happening?  The plaintiff leased a car from Sun Trust and sued later saying that they didn’t comply with disclosure requirements.  Heaven sued for statutory damages but no actual damages.  She wanted to certify a 23(b)(3) class.  The trust company counterclaims, saying that individual class members failed to pay their lease.  This is similar to Plant v. Blazer Financial Services, Inc. in that if there are compulsory counterclaims, the court says you must deny the class certification of the plaintiffs.  Is this court bound by Plant?  Yes, because the Eleventh Circuit used to be part of the Fifth Circuit!  So the court must boot the case for failing to meet the requirement in Rule 23(b)(3) that this class action is superior to other ways to adjudicate the dispute.  This could go forward as a class, but it can’t be maintained under Rule 23(b)(3).  But the Eleventh Circuit adds its own caveat, which is that they might have done it differently, but the district court didn’t abuse its discretion in booting the whole thing.


Notice that the bank wouldn’t really sue the individual lessees because it wouldn’t be worthwhile to get judgments.  They just brought up this counterclaim as a defensive measure.  Even if the class had gone forward, the class plaintiffs probably would have wanted to opt-out anyway!


The Rules now provide for interlocutory appeals for the grant and denial of class certification under Rule 23(f).  If the court is wrong here, the plaintiffs have the right to get a look at this.  The suit might continue with just the named plaintiffs and not the class.  Most states are adopting rules like this.


So far, we’ve seen the rudimentary structure of the way Rule 23 works and how it’s applied in the federal courts.  The Rule has two parts: 23(a), which establishes the four prerequisites, and 23(b), which classifies the classes into one of three rigid categories.


Hansberry v. Lee – The Hansberrys bought a house in Chicago allegedly covered by a racially restrictive covenant.  The Lee family is trying to stop them from moving in.  So in the trial court, Lee sues the Hansberrys and the sellers of the property.  The Hansberrys discovered that the restrictive covenant is no good because it was not signed by 95% of the residents.  So Hansberry says you can’t enforce it anyway, and no deed restriction has been broken because none exists.  Lee responds that the issue has been precluded because the covenant has already been upheld.  In Burke v. Kleiman, the parties falsely stipulated that 95% of the residents had signed the covenant.


We didn’t have the class action rule that we have today back in 1940.  Burke purported to represent herself and other property owners in similar situations.  So it was a plaintiffs’ class against an individual defendant.  The Illinois Supreme Court decided that it was indeed a class action and that Hansberry is a member of that class, and thus is bound by the stipulation that 95% of the signatures had been achieved.  But was Hansberry really represented by the plaintiff class in Burke?  No!  There was a problem!  Burke’s class representatives were trying to uphold the restrictive covenant!  They didn’t represent Hansberry’s interests!  They were adverse to his interests!  Justice Stone says that Hansberry is not part of the same class as the Burke class.


This case stands for three things: (1) class members are entitled to adequate representation as a matter of constitutional law as a prerequisite to being bound by class litigation.  (2) Since Hansberry isn’t going to be bound by the ruling in Burke v. Kleiman, he can dispute the factual finding that 95% of the residents signed the covenant.  If you’re not an active participant in the class litigation, you can collaterally attack that litigation to see if you’re really bound by the former class because you were adequately represented by it.   (3) If you are adequately represented, class members are bound by the result of the class litigation.


To what decree are the differences in the classes and the different requirements that the Rules embody creatures of efficiency as opposed to dictated by what the Constitution requires, especially along the lines of notice?


Phillips Petroleum v. Shutts – So we have Phillips Petroleum.  Phillips spews forth oil.  The leaseholds are owned by individuals such as Shutts.  Phillips is trying to screw the little guys by paying them royalties on prices that are too low.  Shutts wants to recover interest on the money that was withheld.  There are 33,000 people in Shutts’s position who get together to sue for the interest the oil company owes.  Shutts sues in Kansas.  None of these people have much interest.  Each of them has a small amount of interest in their interest.  This is a perfect example of class litigation bringing together small claims that are too small to litigate individually.  Shutts provides the best possible notice.  He sends out a letter to all of the class members telling them they can opt-out if they want.  28,100 are in, 3,400 opt out, and 1,500 were not found and excluded.  Less than 1,000 of the plaintiffs are actually in Kansas, and a negligible part of the oil and gas leases are in Kansas.  Phillips makes a personal jurisdiction argument that only the Kansas plaintiffs can sue.  Phillips argues that there has to be an opt-in procedure.


Justice Rehnquist says we don’t need opt-in.  Why?  The issues of personal jurisdiction are not the same when you talk about a class of out-of-state plaintiffs than when you talk about out-of-state defendants.  When you’re a class-action plaintiff, the state may exercise jurisdiction over the claim of an absent class-plaintiff, even though that plaintiff may not have minimum contacts.  But the minimal requirements of due process must be met: there must be notice plus the opportunity to be heard and the ability to opt out.  This later gets built in to Rule 23.


What happened to Zahn (every member of the class must meet the amount in controversy requirement)?  The Circuits were split.  The Supreme Court granted cert on more than one case to decide whether Zahn is preserved or is gone.


Settlement of class actions


How do we end class actions?  How do lawyers get paid?  This is the issue that has created the most controversy behind class actions.  There is the perception that the lawyers get lots of money but the class itself gets next to nothing.  Lawyers could get an hourly rate or work on contingency.  But if the class is highly nebulous, the named plaintiffs don’t want to bear this burden.  You can’t enter a contingency agreement with an unknown class.  So here we have the common fund doctrine, which allows for the lawyers to be paid out of the pool of money that they are able to acquire for the class itself.  As they create a fund for the relief of the plaintiff class, they get paid out of it.  This arrangement has a contingency “flavor” to it.  Typically, the common fund doctrine uses the lodestar: a calculation of how many hours one would reasonably expect to spend on the litigation times a reasonable hourly rate.


Say we have a solo practitioner working for a class of automobile consumers who have been overcharged.  He spends three years on the case and gets a $100,000 settlement on the behalf of the class.  He works 1500 billable hours over those three years.  As a solo practitioner, he wouldn’t have charged as much as an experienced attorney, but an experienced attorney would have done it faster.  We will give him $75 because that’s what he’s worth.  How many hours will we credit him for?  It would have taken the experienced attorney less time.  If we had $75 times 1300 hours, we would have to pay the lawyer just under $100,000.  The plaintiffs would only get $12.50 each!  That’s stupid.


What if we have a 500 person class suing some defendant?  The defendant makes a settlement offer that will give $95,000 to the lawyer and $5,000 to the class.  Should the court approve it?  Does it just look at a bribe to the lawyer?  The class plaintiffs would probably object.  The Rules have been recently amended to empower the court to do specific things in this situation.  Rule 23(h) is brand new and talks about attorneys’ fees in class actions.  The court may award reasonable attorneys’ fees.  It must be done by motion under Rule 54.  Notice of that motion must be served on all parties in a reasonable manner.  The class must be told about the settlement!  Then they have the chance to come and object.  The court can hold a hearing if they want to.  At the class counsel appointment stage at the beginning of the class action, the court can request the different lawyers competing to be class counsel to bid against one another.  But will this really happen?  Could it be good for the class?


What are settlement class actions?  They are class actions where the complaint, answer, class certification and settlement are filed simultaneously.  The parties have already worked out all the details.  This is like the Amchem case.  This is a framework that is a target of criticism.  It “reeks of collusion”!  Both sides have already agreed how to settle the suit, and the terms are usually highly favorable to the lawyers.  Under the old Rule 23, there were a series of “trash for the class” settlement class actions where the lawyer would get a settlement offer that essentially bought off the lawyer.  Sometimes the named plaintiff would get an “incentive award” that comes out of the attorneys’ fee award.  How do mass small wrongs get righted?  The 2002 reforms make it a bit tougher to get such a high level of inequity.  But have the new rules done much?  Almost no one will opt out of class litigation because their stake is so small.  The tradeoff is between trying to redress many small grievances and giving a windfall to the attorneys.


Anchem Products, Inc. v. Windsor – This is all about asbestos.  There is lots of procedure here.  Amchem started out by trying to find “global peace” for the asbestos companies.  They don’t get it, but that was their plan.  Asbestos lawsuits are filed all over the place.  Lots of people have cancer.  Procedurally, the court uses a consolidation device that allows you to move cases around in the federal courts for efficiency reasons.  All of the litigation goes to Pennsylvania, except for some in the Fifth Circuit.  All the lawsuits get consolidated.  The lawyers want a global settlement.  We have “inventory plaintiffs”: people currently dying.  Those plaintiffs have already filed their lawsuits.  There is no question that there is control over those through the multi-district litigation.  We also have a group of future plaintiffs who haven’t filed a lawsuit yet because they haven’t been hurt yet, though they’ve been exposed to asbestos.  We’re hoping to get both groups into a single lawsuit and settle it.


An administrative plan was proposed that would pay exposure-only plaintiffs in a similar way to workers’ compensation.  Such a scheme would be cheaper for the asbestos companies than lawsuits.  It is proposed as a settlement class action with all of the terms included.  Both plaintiff classes and the attorneys will get paid.  The District Court of Pennsylvania certifies the class as a (b)(3).  The Third Circuit says it’s not fair.  The Supreme Court upholds the Third Circuit and says you can’t do it.  What’s the ethical situation here?  You couldn’t agree not to represent future clients in return for settling a case.  The ABA Rules forbid so-called “lock-out agreements”.  A lawyer can’t agree to restrict his own right to practice law.  What if they plan on settling all present and future cases?  This seems substantially similar, but it’s not technically a lockout agreement.  The global solution would be to bind everyone, which requires the use of administrative settlement procedure.  The questions of law and fact in common must predominate.  The district court found that the shared experience in asbestos exposure and interest in receiving money is what predominated.  Ginsburg says Congress should create the asbestos fund, not courts.


Notice that the current plaintiffs get money, and the exposure-only plaintiffs get an administrative settlement procedure only (just the possibility of money).  Here, the lawyers are representing two different groups with different interests.  The inventory plaintiffs want money now, the exposure-only plaintiffs want money later.  They could have remedied this by having separate counsel to represent each of the different groups.  But that probably also would have blown up the global settlement: the exposure-only lawyers never would have agreed to such a scheme.


Discovery – Rules 26-37


Discovery is the method by which a party to a lawsuit, or other potential parties, obtain information and preserve it for trial.  There are lots and lots of rules with lots of detail.  The discovery process is one of the most important innovations of the Federal Rules.  Discovery includes rules related to disclosures, requests for production, depositions, interrogatories, requests for admissions, and requests for mental or physical exams.   Rule 37 is the sanction motion, used to get people to comply with the rules of discovery.


In 2000, we had our last series of changes to the Rules related to discovery.  They used to relate the scope of discovery to the “subject matter” of the action, but that was seen as too broad.  The Rules were changed to indicate that the scope of discovery should be defined to claims and defenses as served in the pleadings.  The intent is to limit discovery.  Some said that these amendments wouldn’t lead to much change, and experience has shown that they were basically right.


Davis v. Precoat Metals – This case takes place in the Northern District of Illinois, and a magistrate judge is writing the opinion.  These judges handle a lot of discovery matters.  In this case, African-American and Latino workers sue this company for Title VII violations.  They complain that they were discriminated against and that they experienced a hostile work environment.  What information do the plaintiffs want?  They are trying to get information about other employees’ complaints.  This case comes up before the court on a motion to compel under Rule 37.  Under Rule 26(b), parties may obtain discovery under any matter not privileged that is relevant to the claim or defense.  Are other people’s complaints relevant to these plaintiffs’ claims?  The key is that to have a hostile work environment, it must be widespread.  So if there are other complaints, it tends to show that there is widespread hostility.  This is what the Rule was designed to bring in as discoverable!  What would have happened under the old “subject matter” Rule?  It would have been the same, and it’s hard to see what the big change is in practice.  In the end, the complaints are deemed properly discoverable.


Steffan v. CheneySteffan was “constructively discharged” from the Navy for proclaiming himself gay.  What’s the discovery problem?  The Navy was deposing him and wanted to know if he had engaged in homosexual conduct while he was a midshipman.  Steffan refused to answer on Fifth Amendment grounds (which you can do in a civil matter as well as a criminal matter).  What does the Navy do?  They file a motion to compel Steffan to answer.  They also file a request for sanctions (including simply dismissing the case).  Steffan argues that the questions that he’s being asked are not relevant.  The district court judge doesn’t buy it.  Steffan refuses to answer, and the case is dismissed.  Then he appeals to the D.C. Circuit.  The only reason there is a right to appeal on this discovery issue is that he’s been poured out of court entirely.  He appeals his dismissal on the grounds that the discovery ruling and sanction were wrong.  Compare this to the previous case: there was no appeal of the discovery ruling until the entire case is finished, at which point the standard for review is whether the discovery ruling caused you to lose the case.  So most action on discovery is at the district court level.


The Court of Appeals says that the question is not relevant.  The original administrative proceeding was based only on his statements and not his conduct.  The Rule here says that discovery is relevant if it relates to claims or defenses.  Steffan claimed that he was discharged because he said he was gay, not because of any conduct.  Does that make sense?  Are they splitting hairs here?  They take a very narrow view of the “claims or defenses” standard.  Evidence as to discovery is a case-specific issue, and that’s why there is so much litigation over discovery disputes: there is so much to work with.  Is this good policy?  It drives up the cost of litigation because discovery is, by far, the most expensive part of the lawsuit.  It can give one side a strategic advantage in the lawsuit.


A hypothetical


We have Albert and Barbara.  Albert sues Barbara for negligence.  Albert wants to discover how much money Barbara has.  Can he do that?  No, because it’s not relevant to whether she was negligent.  The claim is for negligence, and the amount of money that the person you’ve sued has to pay you if you win is not one of the elements of negligence and is thus not discoverable.  You do want to find out how much money people have.  What if your claim is for an intentional tort?  Because punitive damages are part of the law that goes along with the intentional tort and part of the recovery that you request, courts will find that how much money the other person has is relevant as to punitive damages.  This is why when you sue a company for an intentional tort you get to find out how much the company is worth: you craft a punitive damages award that will hurt them.


What if the defendant is insured and you have a simple negligence action?  If I can’t find out how much money you have in the bank, why can I get your insurance coverage information?  There’s actually a Rule, 26(a)(1)(D), that says you are required to disclose whether you’re carrying insurance.  It’s not because it’s relevant to the claim or defense, but rather it’s so integral to this lawsuit that we force you to disgorge the information as soon as the lawsuit is filed.


We left off talking about Rule 26.  Basically, anything that’s not privileged and is related to claims or defenses is discoverable.




Say Albert sues Barbara for an intentional tort.  Let’s say Barbara gets asked in a deposition whether Barbara intentionally hit Albert.  Is it relevant?  Of course.  Is this information privileged?  Is there a privilege that might be raised?  Sure, she could plead the Fifth Amendment.  But this is a civil suit.  She’s not being tried of anything.  Why can she use that privilege?  Even though this is a civil case, what is said in the civil case is a statement that can be used in other actions, civil or criminal, against Barbara.  This is precisely where you want to raise the Fifth Amendment to avoid offering up free incriminating evidence to the state.


Let’s say Albert is claiming damages for emotional distress.  Let’s say Barbara’s counsel wants to question Albert’s doctor about his emotional state.  It’s relevant.  Though usually there is a confidential relationship between doctor and patient, this will probably be an exception to that privilege.  Albert put his own health at issue: he can’t hide behind the privilege and not have to answer questions.




Rule 26(a) deals with disclosures.  You must disclose the contact information of people who might have useful information.  You must disclose any key documents you’re using to support your claim or defense, such as the contract in a contract dispute or a codicil in a will dispute.  You must show a calculation of your damages.  You also have to provide copies of any insurance agreements, even though such agreements aren’t typically admissible as evidence.  All of this stuff must be coughed up within 14 days of the Rule 26(f) conference.  Date counting is very important!  Prior to the 2000 revisions, the disclosure Rule was optional, and virtually every District Court opted out of enforcing this Rule.  Now it’s mandatory and it actually plays a role in answers questions of what is and is not properly disclosable at the start of a lawsuit.


Let’s say that Albert has medical records that will support his injuries and damages.  He has wage statements which are used to support claims of lost wages.  He has information that he was about to be fired from his job.  He has a poor driving record.  He probably has to fork over both the medical records and the wage statements.  The witness must be mentioned if he will be used.  How about Barbara?  She has an insurance policy.  She has a mechanic and a boss.  She had a fight with her boss on the way to work.  There is also another eyewitness who will claim that Albert is at fault.  But that eyewitness has substance abuse issues.  Who and what do we disclose?  Barbara must disclose her insurance policy.  The mechanic might be a good witness to claim that the car was in good working order.  We don’t want to disclose the boss.  But what about the drunk witness?  We’re not sure whether we want to use that witness or not.  If you’re going to use the witness, you must disclose the witness.  Are the things that we don’t disclose not discoverable?  They may be discoverable even if it’s not necessary to disclose them.


Say your client is a used-car salesman.  The customer thinks she’s made a deal, but the salesman doesn’t agree.  The customer sues for breach of contract.  What disclosures would we have to make?  We wouldn’t have to disclose anything, but maybe we would say that the salesman himself is a person with knowledge of claims and defenses.  You could also list yourself as a person with knowledge of the claims and defenses.  So disclosures are mandatory, but they may not create any burden in a particular case.  On the other hand, what does the plaintiff have to disclose?  The plaintiff would have to disclose some kind of damage computation.


Interrogatories and depositions – Rules 30 and 33


Interrogatories are lists of questions that can be submitted to other parties to the lawsuit only.  The other side’s lawyer will help them answer.  You’re limited to only 25 questions, including discrete sub-parts.  This limitation is a response to what was seen as an abuse of the process.  Interrogatories are cheaper than depositions.  It’s pretty easy to write questions and send them to the other side.  But these are also less useful: the questions are crafted by lawyers and answered by other lawyers.  As a result, you “game away” any possible use of the device.


Depositions, on the other hand, are live questioning.  Here, you have the chance to follow-up.  Depositions can be used against any person, not just a party to the lawsuit.  These are limited to ten per side, and seven hours per deposition.  You can have a full day of deposition of up to ten people.  But how do you determine “per side” when there are co-plaintiffs or co-defendants?  That can vary case-by-case.  These are more expensive than interrogatories.  They are more costly in terms of time (and consequently, money, in the form of legal fees).  But depositions are very useful!  You never know what people might say!  Rule 31 also offers depositions upon written questions, but these aren’t very useful because they count towards the ten depositions yet don’t allow for follow-ups.


Let’s say there is a toaster accident, and we’re going to sue the manufacturer for product liability.  We serve 55 interrogatories against the manufacturer and 20 against the store that sold it.  What’s the problem with the store?  You can’t ask them interrogatories because they’re not party to the lawsuit.  And the interrogatories against the manufacturer are too numerous to be allowed.  But discovery rules can be modified by court order under Rule 26(b)(2).  So we can ask the court to let us have more interrogatories!  But we have to prove to the court why the case is so special that we should be given more interrogatories.


Do you have to give a specific name of a person from whom you want to take a deposition?  Not necessarily.  We’re doing discovery because we’re trying to discover stuff.  You can ask for depositions based on “descriptors” under Rule 30(b).  You can say that you want information from a corporation about certain stuff, and then the corporation sends someone who is competent to testify about that thing.  There is a lot of strategy here.  You want to offer up someone who can testify but who is as ignorant as possible.  You never want to offer up the CEO or president.  They know lots of things, and most importantly, they’re less easily managed by attorneys.


Let’s say we ask the designer of the toaster what his qualifications are as well as the financial structure of the corporation.  The corporation’s lawyer instructs him not to answer as to the financial structure questions.  Can the lawyer do that?  The rules of discovery don’t limit what you can ask in a deposition.  This is a typical battle.  The lawyer cannot tell the guy not to answer except when one of several things is true under Rule 30.  You could try to claim that the question is not relevant because it’s outside the scope.  But that doesn’t prevent the client from having to answer.  They still do have to answer.  But your objection is preserved for trial.  If you screw around during a deposition, sanctions could be in your future.  What if the lawyer objects for seven hours straight?  What if you want to continue, but the corporate counsel says no?  How do we deal with this?  We would have to invoke Rule 30(d)(2), which lets the court grant additional time.   You can’t ask questions about the person said to their lawyer.


Production of documents – Rule 34


This is the most expensive part of the discovery process.  The Rule itself, though it’s written as “the inspection of stuff”, has become more “the production of copies of documents”.  These documents include computer printouts, financial records, faxes, and electronic information (such as e-mails).  You list things that you want produced, and you can propound these requests against any party.  There is also no limit to your requests for production.  These requests are easy to propound but expensive and difficult to comply with.  The tendency is to ask broadly – to define the largest possible universe of potential documents with the hope of being able to score the best possible documents.  To request documents against a non-party, you must use a subpoena duces tecum (“show up and bring stuff with you”) under Rule 45.  You can combine this with a request to take a deposition.


This is a lawyer-driven device.  There is a tendency to interpret requests very literally and narrowly.  Unless you ask exactly the right question, you won’t get exactly the right documents.  So the plaintiff’s lawyer starts by propounding requests that will be very broad.  Then the opposing counsel objects, saying that the requests are overly broad and unduly burdensome.  A negotiation begins between the lawyers.  They try to winnow down the scope of the production by negotiation.


Alice sues the city for an alleged assault by the police.  The specific injury is to the plaintiff’s leg.  The police department has a post-accident photograph of the plaintiff at a dance contest, indicating that the injury may not be quite as severe as the plaintiff suggests.  Does the police department have to disclose the existence of this photograph under Rule 26(a)?  If they fail to disclose, they may not be able to use it at trial.  They probably have to fork over the photograph if there is a Rule 34 request for production.  If you ultimately produce the information before trial, you can argue that failing to produce it under Rule 26(a) was harmless, which could avoid sanctions.


Let’s go back to the Albert and Barbara car accident.  Say we want some documents from a mechanic.  No problem!  You use a subpoena.  Let’s say we want to have a medical exam of Barbara because she’s counterclaiming.  Is a court likely to grant a Rule 35 request for a medical exam when the other party is claiming physical injuries?  If courts will ever do this, this is the situation where they will.  Courts are generally reluctant to upset parties’ privacy by ordering such examinations.  If you get a medical exam ordered by the court and they request a copy of it, disclosure of other medical reports both before and after that one may follow.  You can’t hide behind privilege once you’ve turned over these documents.


Requests for admissions – Rule 36


You ask the other party to admit stuff.  Admissions aren’t very useful because they are drafted by lawyers and answered by lawyers.  But watch out!  Failure to answer is harmful both in Rule 37 compliance, and even worse, if you forget to answer then the matter is deemed admitted within 30 days.  Don’t forget about these things!


The intersection between Rules 37 and 26


These are both tools that may be used in certain contexts depending on whether the facts of the situation make each Rule applicable.  Rule 26(g) is kind of like a mini version of Rule 11.  There are sanctions imposed for an attorney having signed discovery requests that are “bad” for whatever reason (e.g. timeliness).  But note that Rule 11 doesn’t apply to discovery.  The typical sanction under Rule 26(g) will be the fees associated with having to respond to the request.  What if we wait until after the discovery conference, and then you think it’s still too soon?  You can use Rule 26(c) to get a protective order to try to prevent the use of the deposition because you think it’s premature.  You use Rule 37 when the other side fails to disclose something and they try to introduce it at trial.  Rule 37 says that if they failed to disclose, then they don’t get to use the person or fact in the trial.  There are more bad things in Rule 37(b)(2): facts can be deemed established, evidence can be banned, and pleadings may be struck.


We left off discussing compliance.  We could go over a lot of different problems, but the important stuff is that you need to look at both Rule 37 and Rule 26(c) and (g).  Is it better strategically to seek protective orders to prevent having to answer discovery, or is it better to object and wait for the other side to file motions to compel and then raise the same issues you would raise in a protective order?  Yeazell says that it’s better not to rush for the protective order.  You might be able to defuse a discovery dispute that will be enflamed by filing a protective order motion.  (But to whose advantage is such strategy?  The client?  The attorney?  “Justice?”)


Discovery and privacy


Stalnaker v. Kmart Corp. – This is a “fair employment practices” case.  But it wasn’t reported in the Federal Supplement.  It’s a run-of-the-mill case.  What has Ms. Stalnaker done?  She has sued Graves and Kmart for sexual harassment.  She has claimed a hostile work environment.  She’s trying to get discovery from a bunch of other Kmart employees—she wants to depose them.  Kmart objects by filing a protective order under Rule 26(c).  What justifies the use of a protective order here?  The defendants claim that there is no allegation that the other women had any sexual relationship with the plaintiff or harassed her.  Would the Rules of Evidence allow you to admit evidence about the past sexual behavior of parties?  No, in general.  But it turns out that what others are doing in the workplace is relevant.  But doesn’t this seem pretty invasive?  There’s a restriction, though: the results of discovery must be kept secret.  The court won’t stop any inquiry about voluntary conduct with Graves.  What does this ruling mean?  Voluntary consensual sexual activities with people other than Kmart employees in places other than at Kmart are irrelevant.  Sexual harassment by Graves is relevant, too.


Under this order, what questions can be asked?  How can you phrase a question about sexual activity with Graves so that it’s not objectionable?  You make the call!  To play it safe, make the language as close to the judge’s order as possible.  Did the third party Kmart employees have their own lawyers?  They probably couldn’t afford it.  They were just Kmart employees!  Kmart tries to keep out the evidence to protect its own interests.  Kmart’s lawyers may be protecting the deponents’ interests in this case.


Can the magistrate judge’s order be appealed?  The discovery order isn’t dispositive of anything except what’s before you.  So generally, there will be no appellate review of this kind of discovery dispute.  But the statute that creates the magistrate judge’s jurisdiction does have an out for interlocutory review of matters that are “clearly erroneous”.  If the magistrate makes a really bad mistake, you can ask the district court to review and reverse that mistake.


With left off in discovery talking about basic cases.  Let’s try to deal with the major Supreme Court cases that relate to discovery.


Schlagenhauf v. Holder – There was an injury where a Greyhound bus collided with a tractor-trailer.  One of the bus passengers was hurt and sued Greyhound, the bus driver, and the owner of the tractor-trailer.  The bus company and trailer company have cross-claims.  The carrier company put in a request for a series of examinations of the bus driver.  The trial court allowed all of the medical exams!  Is this an appropriate use of Rule 35?  We know that we can obtain these sorts of exams when the condition of a party is in controversy.  There is no question that the driver is a party to the lawsuit.  The driver is a defendant to the original lawsuit.  Does it make a difference that the discovery request is coming from another defendant on a cross-claim?  Is the physical condition of the party in controversy?  Usually when we think of this, we think of the condition of the plaintiff who got hurt.  Did the driver put his condition at issue?  The driver admitted in a deposition that he saw the truck’s brake lights go on, but he hit it anyway.


The Supreme Court eventually vacates the ruling.  If anything is at issue, it’s sight.  There isn’t any justification for other kinds of exams.  Why doesn’t the court allow an ophthalmologic exam?  They granted an order vacating all the exams, and an eye exam may be possible, but the evidentiary link must be established in order for this exam to be ordered.


This case isn’t exactly a landmark case: it doesn’t establish a new rule particularly, but it shows that Rule 35 is broader than just a plaintiff’s rule.  Also, it shows that Rule 35 is not a carte blanche to provide any conceivable kind of exam.


Hickman v. Taylor – This is a much more broadly focused case and it establishes some larger issues.  There were some tug boat guys who got killed.  Norman Hickman is one of the guys killed.  There’s this attorney, Fortenbaugh, who is employed by the tug boat company.  This lawyer interviews witnesses to prepare for trial.  He talks to the survivors and other witnesses.  He made notes about what they said.  There is an interrogatory from Hickman to provide the notes from these interviews.  The attorney declines, claiming that the memos are privileged.  But he ends up going to jail for contempt!


Are these documents really privileged?  We’re told that these memos fall outside of attorney-client privilege.  If it’s not privileged, is it relevant?  Yes.  These are the statements of people who would know best what happened.  If it’s not privileged and it’s relevant, you usually get it.  But at the end of the day, they don’t get this.  Why not?  The Court says that it’s not protected from discovery.  But what makes this material special and allows it to be treated specially?  It’s attorney work product.  The information would otherwise be discoverable.


There are two types of information: first, witness statements in some form.  Why aren’t these discoverable?  As to these witnesses, the Court tells us that there may be some way to get this information, but not on these facts.  There was no effort on the part of the requestors to get this information themselves.  They could have just gone out and done these interviews themselves.  They must show some reason why the other attorney’s work should be available to them.  What about the mental impressions of the lawyer as a result of the other witness investigation?  The Court says there is no legitimate purpose served by having this information discoverable.


Rule 26(b)(3) talks about trial preparation and what may or may not be discoverable.  A party may obtain discovery of documents and tangible things otherwise discoverable prepared in the preparation of litigation only upon a showing of substantial need.  If the material is otherwise discoverable and doesn’t relate to experts, and was prepared in anticipation of litigation, then you can’t get discovery of that information unless the discoverer can show some substantial need and there is no reasonably available substitute.  Even then, the court will protect the lawyer’s mental impressions in constructing an order of discovery.  Who does this Rule apply to?  It applies not just to the party’s attorney, but also the party’s consultant or other representative.  If you find great eyewitnesses, you must give up the name of who you found, but you don’t have to give up exactly what they said.  Just because you spent a lot of money finding a witness, you still have to cough up their name.


If someone isn’t a party to a lawsuit, they can obtain a statement that they made previously.  A party might not be able to get this statement, but a non-party can get it for you.


Upjohn Co. v. United States – Who is the client in the corporate context?  The “Control Group Test” protects communications by decision-makers or those who influence them.  Rehnquist says we want to encourage frank communication between attorneys and clients.  We don’t want to just protect the top of the hierarchy.  The Court doesn’t establish a set rule, but it did stop the use of the “Control Test”.  An alternative test is the “Subject Matter Test”, which provides any employee with privilege as long as the matter is within the employee’s performance of their duties.




There are two kinds of experts: testifying and consulting.  You decide whether to have an expert testify at trial depending on what he or she will say and whether he or she will be an effective witness.  The consulting witnesses can only be discovered in exceptional circumstances.  You can get anything you want out of the testifying expert.


How do the Rules play out?  Let’s say the plaintiffs have two experts.  They will both testify at trial.  What do we have to disclose?  We have to give up the names of both experts and the expert report.  We must freely give it up without any request under Rule 26(a)(1).  What about their depositions?  Can the defendant depose these people?  Let’s say the second doctor isn’t going to testify and we have no intention of using his report at trial.  Is our disclosure burden different?  Now that he’s no longer a testifying witness, we don’t have to disclose anything about him!  That means you can get experts to figure out a case without the fear of whatever they find out being disgorged as long as you keep them from being a testifying expert.


Thompson v. The Haskell Co. – The plaintiff was fired by the defendant, and it was claimed that she suffered depression as a result.  The claim is that the firing was due to sexual harassment.  The plaintiff saw a doctor and that doctor made a report.  The defendant wants a copy of the report.  What role does Dr. Lucas play in this litigation?  Is he a consulting witness or a testifying witness?  He is a consulting witness.  But you can get discovery from consulting witnesses under exceptional circumstances.  So are these exceptional circumstances?  The defendant wants Dr. Lucas’s exam because it was very timely.  If her emotional state is the result of having been fired, then you would think it would show up in this report because she files her complaint way, way later.  So the defendant’s lawyer wants to argue that this report will have evidence related to being fired.  If the report doesn’t mention being fired, then she probably was depressed for some other reason.  The court finds the report discoverable and orders it produced.


Chiquita International Ltd. v. M/V Bolero Reefer – What happened?  Chiquita wanted to ship their bananas from Ecuador to Germany.  They hired Bolero Reefer to do the shipping, and they lost some of the bananas.  There are two claims: one for the lost bananas that were left on the dock, and one for the bananas that got all nasty in the boat.  Winer is an expert marine surveyor.  In the world of surveying bananas on boats, he is apparently an expert!  So Chiquita sues Bolero for bad bananas.  In the context of this suit, we get Winer’s testimony.  Bolero wanted access to that testimony in order to look at the deposition.  Is Winer an expert witness at all, or just a fact witness?  The court decides that he is an expert witness.  There can be an expert in anything as long as you can make the case out right.  But couldn’t they have just looked at the boat themselves, or gotten their own expert witness?


*** (1) What is discoverable?  (2) What tools do you use to get those things that are discoverable?  (3) What about disputes?


We start with the question of relevance.  If it’s relevant, you’ll basically usually be able to get the information, even if it wouldn’t be admissible evidence.  Let’s say it’s not relevant.  Then you have to ask whether it’s nonetheless discoverable because of an explicit Rule, for example, insurance policies under the disclosure requirement.  You’re required to disclose insurance policies no matter what.  There aren’t very many exceptions like that, but you must note them.  But most things that are discoverable are relevant.  Say something is relevant.  Is it privileged?  If yes, it is privileged, then you have to consider whether the privileged has been waived.  That’s a matter of the law of evidence.  But the easiest example as to waiver is attorney-client privilege, where there mustn’t be third parties present for the communication to be confidential.  The privilege must be waived if there are other people around.  If the privilege hasn’t been waived, then you can’t get the info.  If the privilege has been waived, then we rejoin the “main stream”.


If the information is not privileged, we must ask if it’s work product.  And that’s the same question you must ask when you’re dealing with a waived privilege.  What’s the difference between the stuff protected by attorney-client privilege as opposed to what’s protected as work product?  If it’s not work product, then you can get it.  If it is work product, then you have to ask the Hickman questions about whether you can overcome that protection.  You use the Rule on trial preparation that defines the different burdens that must be met.  If you can’t overcome the protection, you can’t get stuff.  If you can overcome protection, then we have to ask whether the information is from a testifying expert.  If they’re not a testifying expert, you must ask the “hardship” question: is there some other relevant need or hardship that lets you get the information?  If they are a testifying expert, then you can get the report and take a deposition.


Remember that this all starts with Rule 26.  Mark up the Rules where they relate to the questions that we’ve focused on.


Discovery disputes


We can get protective orders that can prevent you from having to disclose information.  There are Rule 26(g) sanctions, big sanctions, motions to compel, and of course the right to appeal.  But when will the right to appeal kick in?  It will frequently be way too late.  At the core of discovery is the fear of abuse.  There are three typical discovery abuse problems.


There may be too little discovery (or the “stonewall position”).  You’ll encounter a person who doesn’t want to disclose information even if it is explicit required.  People don’t want to disclose stuff that would be bad for your client, but you have no choice under the Rules.  If a proper request is made for relevant, non-privileged stuff, you must cough it up.  A mandatory discovery conference may be required under Rule 26(f).  Initial disclosures under Rule 26(a) are designed to solve the problem of too little discovery.  There are certain categories of information you must give up, period.


Next, there is the problem of too much discovery.  Sometimes millions of pieces of paper are disclosed.  But that may or may not be responsive.  There can be an ethical question here.  There are ways to control this: under the general Rule 26(b), you can limit the scope of a discovery request.  There are also limitations in Rules 30 and 33 on depositions and interrogatories.  There are compliance Rules in 26(g), and you can also get a protective order under Rule 26(c) to prevent having to respond.  By Rule 26(g), every document you sign is signed in a “Rule 11” fashion.  You certify that what you’ve done is complete and in good faith.  You can also get motions to compel under Rule 37.  It also provides other specific “tiers” of sanctions under Rule 37(b)(2).  These become the “big sanctions”.  Facts can be deemed established: even things that aren’t true!  Evidence can be banned.  Pleadings can be stricken.  You can be held in contempt.  Finally, there may be attorney fees and expenses awarded regarding the discovery at issue.


The exam will be based on pending real cases.  But there probably won’t be a pending case that deals solely with a discovery issue.  Fairman has also used short-answer, problem-type questions to test discovery.  There should be old exams on file now.


Resolution without trial


There are fewer and fewer actual trials, even though there are many, many more cases!  The data that Fairman is showing us is just for federal trials.  Most cases are state cases, though.  And when we look at what happens in the states, the data is about the same.  Lots of cases settle, around 70% of them.  Rule 12 motions dispose of a certain number of cases.  Default judgments can cause the end of suits.  Summary judgment, dismissals, and ADR are other options.


Default judgments – Rule 55


Here are Paula and Darlene.  Paula sues Darlene for negligence.  Twenty days pass, but nothing happens.  Can you ask for default judgment?  One option is if you are asking for a sum certain amount.  On the other hand, if it’s not a sum certain, you must go before the court.  You’ll have to prove the damages before the judge so that the judge can enter judgment for an amount.  This isn’t particularly cumbersome because there’s nobody on the other side.  So in this example, it’s a car wreck so we don’t have a sum certain.  You’ll have to go to the judge.  What could Darlene do about this?  Rule 54(c) says you can set aside a default judgment for good cause.  This Rule uses Rule 60 as a standard for when a court will set aside a previous ruling.


Peralta v. Heights Medical Center – This is a Supreme Court case generated by the state of Texas.  What happened?  Peralta had an employee who got injured, went to the hospital, and was supposed to pay for the employee’s injuries.  Peralta was served, but under Texas law, he claimed invalid service.  Peralta chooses not to show up.  Don’t take a default judgment when you have property in the jurisdiction of the court!  His stuff gets sold!  He goes to court in an attempt to argue for a bill of review.  You need three things: (1) a meritorious defense, (2) being prevented from raising the defense by the wrongful act of another party, and (3) the defaulting party had no fault.  The courts reject the bill of review because there is no meritorious defense.  That leads to the federal review that gets to the Supreme Court.


Justice White says that to have due process, you need notice that is reasonably designed to tell parties what’s up.  But if Peralta has no meritorious defense, why isn’t that just the end?  The difficult thing is the question of whether there was notice.  Peralta had every opportunity to respond to the suit outside of court.  But he chose not to.  This is a hard-line notice view!  The reality is that Peralta had actual notice.  But the Court doesn’t care!  What can the hospital do now?  Can they still get Peralta?


If your suit gets involuntarily dismissed under Rule 41, you win.  They can’t file the lawsuit again.  It’s a determination on the merits.  Voluntary dismissal, on the other hand, is governed by Rule 41(a), and it provides for voluntary dismissals either by answer or agreement.




There are lots of factors that go into determining settlement values and what makes cases ripe for settlement.  Discovery causes reevaluation of the value of a suit.  Most tort plaintiffs lose, so settlement for them is attractive.  Even if you win, verdicts may be low, and trials are expensive.  So both sides have pressure to settle if possible.  Most settlements are based on negotiations between the attorneys.


Jane Smart is a botanist employed by a botany company genetically modifying crops.  There are harassment allegations that lead to a discharge.  There are multiple stories of what may have happened.  But Jane thinks she may have both unlawful discharge claims under state law and federal Title VII claims.  The company tries to give her money to not sue, a “walkaway” settlement.  This is the easiest way to make sure you get sued for malpractice.  If you pay someone not to sue but then they turn around and sue anyway, then you yourself will turn around and sue the lawyer who recommended the “walkaway” settlement.  So you want to do this in the form of a release.  This has its problems, too.  The release is only as good as its language.  If the release is “in full settlement of civil rights claims against defendants”, then you haven’t necessarily released the unlawful discharge claim.  What about “in full settlement of any and all claims, known and unknown, whether based on federal, state, or other applicable law, arising out of my employment”?  That’ll do.


Voluntary dismissals are one way to execute a settlement agreement, but the problem is that this dismissal is without prejudice, meaning that they can file the lawsuit later.  Maybe you could get Rule 41(b) involuntary dismissal which would be with prejudice.  Claim preclusion will then kick in and preclude whatever such a judgment on the merits would have covered.  If you want more action on the part of the courts, you can ask for a consent decree, which is, in essence, a court order.


All four settlement scenarios described above have their advantages and disadvantages.  Some will be quicker than others.  For example, if you have to deal with a consent decree, you’ll have to invoke the jurisdiction of the court.  Some will be more confidential than others.  And some will be more enforceable than others.  But usually no one type of settlement will have all the answers.


Matsushita Elec. Industrial Co. v. Epstein – There’s a California federal court case based on a breach of federal securities law.  There’s a Delaware state claim based on the fiduciary duties of the directors under Delaware state law.  Both claims are class actions.  There is exclusive jurisdiction for the type of claims in the California suit in the federal courts.  The rule is that the state court can settle claims that it could not have tried because of the full faith and credit statute, 28 U.S.C. § 1738.  We could change the result of this case by statute.


Confidentiality in settlements


Let’s say there is a plaintiff who is suing for unlawful discharge.  The plaintiff is concerned about how long the case will take.  She doesn’t want to wait a long time.  She is also concerned about having her rights be redressed.  We can craft a confidentiality agreement that will work.


Kalinauskas v. Wong – This is a suit against Caesars Palace for sexual discrimination.  They take a deposition of a Ms. Thomas.  At the time of the case, there was a settlement and settlement agreement between Ms. Thomas and Caesars Palace.  There is a confidentiality agreement in the settlement agreement.  This case punctuates confidentiality agreements.  If they come into conflict with other, broader principles, then even a duly bargained for confidentiality agreement might give way.


What about ADR?  When there is negotiation, the parties themselves come to resolution.  When there is mediation, negotiation is assisted by a third party.  There can be arbitration, which is unofficial adjudication.  There can also be early neutral evaluation.


Wasn’t paying too much attention.




Here’s another form of ADR.  The distinguishing characteristics of arbitration are that a decision is made by decision-makers in arbitration, whereas that action is not the end result of processes such as mediation and settlement.  The arbitrator decides the dispute and issues an oral or written decision.  The main reason people use arbitration is because the parties can decides the rules of the game.  They can make up their own procedure, rules, and substantive law.  They can be as similar or dissimilar to “real” law as you want.  Many arbitration agreements restrict or forbid discovery, pre-trial motions, knowing who is arbitrating the dispute, and the application of the rules of evidence.  Arbitration is also usually faster, cheaper and more confidential than litigation.


What happens when courts get involved at looking at arbitration decisions?  There are two places that this happens.  Courts ask at the front end: when is it appropriate for a court to enforce an arbitration clause?  When should they stop a lawsuit that has started from going forward or compel a party to go to arbitration?  At the back end, when will a court review and possibly undo an arbitration award?


Floss v. Ryan’s Family Steak Houses, Inc. – There are lots of cases against the steakhouse!  What were the facts here?  Floss is suing under the Fair Labor Standards Act.  Floss didn’t want arbitration, but wanted to go to court instead.  Ryan’s insisted on going to arbitration.  There’s also an ADA claim by Daniel.  They both signed an arbitration agreement when they agreed to work at Ryan’s.  But did the plaintiffs really think about this provision when they signed up to work at Ryan’s?  They probably just wanted a job.  What’s the benefit to Ryan’s?  It’s cheaper, faster, and reduces bad publicity.  But this agreement indicates a specific arbitration forum: EDSI.  It turns out that in the Sixth Circuit, they won’t uphold this arbitration clause, but in the Eighth Circuit they will.


The Sixth Circuit asks whether EDSI is suitable for the resolution of statutory claims.  What made EDSI suspect to the Sixth Circuit?  How they appoint the arbitrators is a concern: one of the arbitrators is a manager of a company that has an arbitration agreement with EDSI!  They’re worried about bias.  The other two arbitrators are an employee and a lawyer, judge or “other professional”.  So the court is worried about this.  The court is also worried about a bias due to EDSI’s financial relationship with Ryan’s.  Their business depends on getting and keeping business clients.  Also, the employee had to pay for half of the costs of the arbitration.  In court, the costs would be based upon who won.  But ultimately, the court decides that the contract is invalid: there’s no consideration because the terms are “fatally indefinite”.


Summary judgment – Rule 56


This is the most important rule of Civil Procedure!  How does the Rule work?  What happens due to Celotex?  You’re entitled to summary judgment if there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.  So both questions of fact and questions of law can come into play.


Let’s say we have a creditor and debtor.  The creditor holds a promissory note for the amount owed.  The creditor sues on the note upon default.  All you need are an executed note that’s due and hasn’t been paid.  If you can establish those elements, you’re all good.  If the defendant were to file a Rule 12(b)(6) claim, he would lose because we accept all plead allegations as true for the purposes of a pre-trial motion like 12(b)(6).  The Rule won’t test the sufficiency of the allegations if they’re made.  What if the defendant denies all these elements, but then at discovery, the defendant admits that he hasn’t repaid the promissory note.  So then do we have a situation where there is no genuine issue as to any material fact?  That’s right!  How can we get the interrogatory before the court in order to support a motion for summary judgment?  Rule 56(c) tells you that affidavits and other discovery stuff can be used.


Rule 56(e) says that affidavits must be made “upon personal knowledge” and give facts that would be admissible as evidence.  Not every affidavit will be based on personal knowledge or include stuff that could be admitted as evidence.  So you couldn’t submit an affidavit with evidence that would be hearsay if introduced at trial.  What if the plaintiff submits an affidavit saying: “I know the plaintiff signed the note.”  But this is too vague to count as personal knowledge.  If you had information that says the plaintiff watched him sign the note, but the defendant says that he didn’t do it, then there is an issue of fact for the jury.


Don’t mix up the “burden of production” and the “burden of persuasion”.  The burden of production is the obligation to go forward by producing some evidence on an issue.  That may be the same as who has the ultimate burden of proof, or rather, the burden of persuasion, which is the obligation to convince the trier of fact to some level of certainty of the truth of an issue.  Judges can intervene to prevent something from going forward in a lawsuit if plaintiffs cannot meet a minimal showing with the production burden.  But if you can make a minimal showing, you’ll clear Rule 56 and have the chance to get before a jury.  If the plaintiff can make a showing, the burden shifts to the defendant to make some showing that there is an issue of fact for the jury to decide.  Otherwise, if there’s nothing the defendant can say, the plaintiff will be entitled to judgment as a matter of law.


Adickes v. S.H. Kress & Co. – At trial, the plaintiff had the burden of production and persuasion.  On summary judgment, the defendant’s burden was to show that the plaintiff could not prevail at trial.  The defendant, in essence, had the burden of production and burden of persuasion.  The defendant had to prove that the plaintiff couldn’t win.  This case more or less moots summary judgment in federal court practice from the defendant’s standpoint.  The burdens to prove that the plaintiff can’t win would be so heavy that you might as well try the case.


Celotex Corp. v. Catrett – Here’s a wrongful death claim.  When you look at the pleadings, the complaint alleged that the defendant manufactured asbestos, that the asbestos was unreasonably dangerous, that Catrett was exposed to the defendant’s asbestos, and that it caused his death and damages.  The defendant responds by admitting they produced asbestos, but denying basically everything else.  Celotex moves for summary judgment on the issue of exposure.  They claim that this plaintiff has proved that he was exposed to their particular type of asbestos.  The district court grants summary judgment to the defendant.  The court says that there was no evidence that the plaintiff was exposed to Celotex-brand asbestos.  The case will be dismissed.  That’s because there’s no information that the plaintiff came forward with that can show exposure to Celotex asbestos.  That’s a burden they would have at trial as to causation, saying basically “if you can’t do it now, what makes you think you’ll be able to do it at trial?”


The case goes up to the D.C. Circuit, which reverses, saying that the burden of the moving party (Celotex) required it to support its motion with affidavits to negate exposure, that is, to prove that he wasn’t exposed to Celotex asbestos.  The case goes up to the Supreme Court on that issue.  They don’t explicitly overrule Adickes.  Rehnquist says that after a period of discovery, you can get summary judgment against a party if they fail to establish an element that was central to their case and on which they would have the burden of persuasion at trial.  If after discovery, you can’t come up with any evidence of something you have to prove at trial, then there’s no reason to try the case.  Rehnquist suggests that this Rule operates much like Rule 50 (judgment as a matter of law).  When Celotex files its motion for summary judgment, it has to say that the plaintiff failed to produce evidence as to the exposure.  As to that motion, Celotex has the burden of production.  When they do that, the burden of production then shifts back to the plaintiff.  They get their last chance.  Now’s the time they must come up with any evidence.


Judicial management of litigation


All of the Rules provide ways in which judges can manage litigation.  Should judges be a neutral arbitrator, or should the judge be more active?  How can judges push their docket along and actively manage their cases?  Rules 8, 9, 12 and 56 are tools the court has to manage cases.  The discovery rules, 26 and 37 are more tools.  Rule 16 is the pretrial conference rule.  The judge can bring the parties together before trial for whatever they want, basically.  There are very specific things that the court can do that are listed in 16(c).  There are 16 different things listed that can be done!  The intention of this Rule was to have the courts use this Rule to get rid of cases that they perceive have less merit.  If you don’t comply, you get sanctions under Rule 16(f), which are exactly the sanctions you can get under Rule 37(b)(2)(B), (C) and (D).  You can refuse the right to go forward with evidence to support specific claims and defenses, you can strike pleadings or dismiss the action, or you can hold them in contempt for failure to comply with the pretrial order.  The bottom line is that there are a lot of things the district court can do, and some pretty heavy sanctions it can use if you fail to do what it wants you to do.


Sanders v. Union Pacific Railroad  Sanders got hurt.  Sanders filed suit under FELA against the railroad.  There’s a pretrial conference.  Usually, these pretrial conferences will set deadlines.  Judges aren’t happy when you miss the deadlines of their pretrial orders.  They were even warned about the sanctions within the actual order itself!  The plaintiff did lots of bad stuff!  The plaintiff bungled lots of deadlines!  They show up at the conference, and the law clerk is there instead of the judge.  The plaintiff isn’t ready!  He has excuses.  He proposes that the case be dismissed without prejudice.  But the court instead dismisses the case with prejudice!  Is this an appropriate sanction?  The panel of the Ninth Circuit says that it’s not an abuse of discretion, on a 2-1 split.  But then when it goes en banc (a panel of 11), the court reverses.


McKey v. Fairbairn – It’s a slip ‘n’ fall case!  There’s a roof that leaks.  A tenant mops it up once, twice, then falls!  The tenant sues the landlord for breach of the lease.  The plaintiff agrees at the pretrial conference that it’s only about the lease.  But later on, the plaintiff wants to amend the pleadings to bring in a charge under a violation of statutory/regulatory duty.  The court says: “Too late!”  The court issues a directed verdict for the landlord!  The appellate court found no abuse of discretion on the part of this judge.  But think about this: the judge knew that the plaintiff would probably want to amend the pleadings down the road, but then didn’t allow the plaintiff to do so.  What if the judge had allowed the amendment?  Would the appellate court have reversed as abuse of discretion?  Wouldn’t it be unfair to the defense?  Would it constitute unfair surprise at trial?  But shouldn’t a landlord be responsible for knowing the regulations that govern his industry?


What would the landlord have done differently during the course of litigation if he had known that the D.C. regulation could be an issue?  This is before a significant amendment to Rule 16.  The judge here was very traditional: if you come with a theory, you can go with it, but you’re going to find out soon that you lose.


Litigation is a “system of managing doubt”.  The devices we’re looking at today stem from this theme.


Judgment as a matter of law – Rule 50


After pleading and joinder of claims and parties comes discovery, then resolution without trial (potentially), then trial.  The motions we’ll talk about today are motions that can come during trial.  These motions can substitute the judge’s decision-making for that of the fact-finder.  The judge can also use jury instructions and keeping evidence in or out to control the jury.  There is also directed verdict, judgment notwithstanding the verdict, and the motion for a new trial.  Where do these things take place?  In a trial, there’s the plaintiff’s case, the defendant’s case, a jury verdict, and then a judgment.  After the plaintiff has finished their case-in-chief (all evidence and witnesses), then it’s appropriate for a motion for a directed verdict.  If that motion is denied or delayed, it can also be made after the defendant’s case in chief.  After the jury verdict, you could make a motion for a judgment notwithstanding the verdict.  So one difference between these two types of motions is when they can happen.  But all of these are now subsumed into Rule 50, which is called judgment as a matter of law.


So look at the Rule and see what it does.  The standard is very much like the summary judgment standard.  Look back at Celotex.  Rule 56 has pretty much the same standard as Rule 50.


Pennsylvania Railroad v. Chamberlain – Here is a classic U.S. Supreme Court case from 1933!  “If there’s a train, there must be a dead person.”  What happened to the dead guy?  There are some train cars.  Then the dead guy, then more train cars.  He gets squashed between some of the cars.  What is the railroad able to offer as evidence on the issue of what happened in the accident?  Employees in the group of cars that crashed into him indicated that there was no collision at all.  But there is another witness who gives some evidence of a collision.  But the Court finds that this witness does not satisfy the plaintiff’s burden of production.  In theory, under the modern Rules, the railroad could have moved for a directed verdict at that point, and it would have been valid.  Is the court weighing the evidence or trying to protect the legal interests of the parties involved?


What’s the difference between a motion for a directed verdict and a motion for a new trial?  Directed verdicts focus on the adequacy of evidence.  They replace the jury’s verdict with the judge’s judgment.  It results in a final judgment.  What about the motion for a new trial?


There are troubling similarities between Rules 50, 56, and even the Rule 12(b) motions.