Complex Lit

Even if Rule 20 declared joinder proper the trial court could ultimately sever claims or join independent claims under rule:

42(a) and (b)

What is a counterclaim?

A claim you have against any opposing party (a party that has asserted a claim against you). Ex: def claim against pl, def claims against co-def who has already asserted a cross claim (Rule 13(h)), third party def claim against third party pl that impleaded him.

Forum non conveniens:

A defendant may seek a forum non conveniens dismissal when the a more convenient forum exists and transfer is impossible (Transfer is impossible between different state court systems as well as between courts of different countries)

Rule 24(b)

A stranger MAY intervene (at trial court's discretion) if stranger has a claim or defense that shares a common Q of law/fact with the primary action (efficiency)

What is the standard of review for a trial court's decision to allow joinder under Rule 20?

Abuse of Discretion --> broad latitude! courts usually apply the same T/O question broadly, the only consequence is having an extra pl or def so it's strongly encouraged as long as it's consistent with fairness to the parties

Policy behind Rule 20:

All themes of the course! 1) Efficiency: Joinder of co-plaintiffs or additional defendants possible only when the claim by/against the additional party involves at least one common question of law or fact with the original claim. 2) Fairness: Joinder only possible when the joinder involves a claim arising out of the same transaction or occurrence with the original claim. 3) Autonomy: Even when this two-part test is fully satisfied—such that joinder would be both efficient and fair—a plaintiff is still not required to join such additional plaintiff or defendant. The rule states that the plaintiff "may" join the additional party.

Permissive counterclaims must have:

An independent basis for SMJ (diversity or Fed Q)

Why are mass tort claims different?

"Individual interest in litigating one's own personal injury claims arguably greater than on other claims. Perhaps any class treatment would violate autonomy too much." Advisory committee Note: "A mass accident resulting in injuries to numerous persons is ordinarily not appropriate for a class action because of the likelihood that significant questions, not only of damages but also of liability and defenses to liability, would be present."

(Narrow) Exception to Class Action Fairness Act SMJ

"Local Controversy" --> even though you meet the CAFA standard, if you have these 3 prerequisites then you can't be in federal court: 1) Where 2/3 of class are citizens of forum state PLUS 2) at least one local defendant who is "significant" (grey area, but mere allegation of joint and several liability doesn't make a significant def... but need to look to actions of def (relative to other defs) and the relief possible against them) PLUS 3) no other class actions filed in last 3 years from this event. BOP on party resisting fed SMJ (plaintiff here). Plaintiff has to show those 3 prerequisites are met.

What is the reason behind the 1st to file rule?

"Sound Judicial Administration" --> Avoid waste of time and resources (courts' and litigants')

What is the standard for class rep expectations:

"Wetzel Rule" : class rep have no conflicting interests and class counsel be capable and class rep will have "requisite vigor" to pursue the claim; Only "minimal competence" (as long as pl knows "something about the case") Other considerations: -does class rep have financial resources to fund litigation? -professional class rep? (does he do this for living..) -Lack of arms-length relationship with counsel? -Demonstrated lack of credibility?

Rule 23 implicitly demands what kind of class?

"adequately defined and clearly ascertainable class."

Policy reasons for severing claims under 42(b) even if joinder is proper under Rule 20:

"for convenience, to avoid prejudice, or to expedite and economize, the court may order a separate trial of one or more separate issues, claims, crossclaims, counterclaims, or third-party claims" - In re Stand 'n Seal case "the court has discretion to deny joinder if it determines that the addition of the party under Rule 20 will not foster the objective of the rule, but will result in prejudice, expense or delay" - Bridgeport Music case

NOT proper rule 14 claim if def is saying:

"i'm not liable to the plaintiff, somebody else is." And bringing that other person in isn't even neccessary bc the def can point to the empty chair. Or pl could use Rule 20 to bring the other guy in and let the jury decide.

Tests for Rule 13(a)

"same transaction or occurrence"; court has used 4 tests to determine if it's same T/O: 1. Are issues of fact/law on claim and counterclaim largely the same? (Based on efficiency, it makes sense to do them together) 2. Would RJ bar a subsequent suit on def's claim absent the compulsory CC rule? (kind of circular...) 3. Will substantially the same evidence support or refute plaintiff's claim as well as def's counterclaim? (JU says this is stupid bc same as number 1) 4. is there any logical relationship between the claim and CC? (Claims logically related when they involved the same "aggregate of operative facts" (sometimes called the "common nucleus of operative facts" test) --> Most courts use the logical relationship test

Specifically, the pretrial process in MDL includes:

(a) discovery rulings (b) summary judgment rulings (c) settlements with orders of dismissal (e) motions for class certification (etc.)

Rule 13(b) text:

(b) Permissive counterclaim. A pleading MAY state as a counterclaim against an opposing party any claim that is not compulsory.

Concerns about offensive non-mutual C/E:

-Offensive doesn't always promote judicial economy (promotes wait and see sitting on the sidelines. Sally might sit out Chuck's lawsuit and see if he prevails before she sticks her neck out.) -Offensive may be unfair due to case differences (If the court smells any unfairness in one P standing on the shoulders/riding the coattails of another unrelated P - trial court's discretion... Especially unfair where current P could've easily joined in the other suit; or if dmgs differ significantly b/n the cases; E.g. Hardy - $65k in suit #1 cf millions of dollars in suit #2. That's not really fair to apply C/E to the defendant. The incentivizes to litigate well on the issues may reasonably differ depending on AIC (not going to send your most expensive lawyer down to defend a case worth a few pennies; or even procedural/forum differences that could affect the outcome)

2 Contexts where Notice to Class Members comes up:

1) Certification decision 2) Settlement

Policy reasons behind compulsory claim rule:

1) Interest in avoiding multiplicity of suits. Forced consolidation of all related controversies between the parties. 2) Permit a D forced into court to have chance to obtain "complete relief" by having their related claim heard too (and to offset P's claim).

Shutts highlights the need for careful choice of law consideration when strategically planning a possible class action, by either:

1) Limiting the class to a state or small grouping of states (with similar law), or 2) Finding one controlling source of law (either one state that has significant contacts with all class claims—typically the D's state—or federal law)—like in Mullen v. Treasure Chest Casino (federal Jones act applied to all claims).

Why was there no limited fund in Fibreboard?

1) No true limited fund shown (on either side of ledger) -They just created a "limited fund" by putting money into Trust... There's no showing that it was a true limited fund 2) No equitable treatment -Inventory (existing) claims v. Class members (future claimants); -The inventory claims getting different amounts than future claimants -And some of the future claimants had exposure prior to expiration of insurance policies 3) Def got to hold back significant net worth under settlement -This is being used by def /insurance cos to save on their own losses, and this category is supposed to be to protect class members, not defs.

Goals of Class Actions:

1) Reduce "units" of litigation (avoid multiplicity of related lawsuits) --> efficiency! 2) To permit the vindication of small claims ("negative value class actions") not viable on own --> fairness

Two red flags present that almost always favor FNC dismissal:

1) a foreign plaintiff not suing in their own home! 2) when the cause of action does not arise in the forum! (Foreign in this instance can refer to a citizen from another country or a citizen from another state)

if no litigation loser, it is only in extremely rare scenarios that a non-litigation loser may be bound by C/E... 3 examples:

1) a nonparty who has succeeded to a party's interest in property; Ex. A judgment relating to an easement affects the later owner 2) a nonparty who controlled the original suit; Ex. insurance company hires the defense lawyer for a company client and actually controls the litigation (maybe even contractually). 3) Virtual representation; Class action litigation - one lawyer sues for the class. This only applies with rule 23.

In determining if same T/O test under Rule 20 is met in strict products liability, 2 options:

1) could look at the SOURCE of the injury (Stand 'n Steal case-- the T/O test can look to the liability facts, and here the transaction or occurrence was the design decision that caused harm; Not looking at the time of the actual injuries (bc those were separate T/O's) as the transaction, the design/manufacturing of the product is the T/O) OR 2) could look at the INJURY itself (McNaughton-- All pl's took this same drug and had similar health problems, all pl's similarly victimized by failure to warn of dangers of drug; Clear that common questions existed (was warning inadequate) but court ruled didn't arise from same T/O which is pretty much the opposite as In re Stand 'n Steal bc we're looking at each pl's injury rather than the source) -Because there's so much discretion, pl needs to just try to convince the court that it makes the most sense to try them together and it won't make a big mess, etc.!

Phillips Petroleum v. Shutts, only one quarter of one percent of the gas pumped from beneath Kansas lands (gas involved was from 11 states) and only 1,000 royalty owners were from Kansas, with 28k from outside of Kansas, was there PJ and which state's law applied?

Appealed on two points by D: (1) unlawful to arbitrarily apply KS law to all the claims, even those unrelated to Kansas, & (2) violation of Due Process for trial court to exercise personal jurisdiction over non-resident plaintiff class members. Supreme Court found no problems with personal jurisdiction but held that it was unconstitutional to apply Kansas law to all the class claims. (Application: Here as to non-Kansas gas and non-Kansas royalty owners, there was no basis for applying Kansas law to the issue of whether interest was due. Certainly out-of-state royalty owners had no reason to expect Kansas law to apply to them.)

Definitions that involve subjective elements:

Are problematic bc stuff like "people who feel that they may be affected by the purchase or consumption of contaminated food" is way too subjective.

FRCP 12(b)(6) standard for assessing fraudulent joinder:

Asks "Any possible claim in plaintiff's complaint, assuming it's true?" (least amount of federal scrutiny of the state claim)

Why would def's raise objections to non-resident plaintiff's PJ?

Bc they have an interest in insuring that the class will be bound by any decision rendered. Unfair for D to be bound but not to have the entire class bound also.

Best way to maximize your chances of being certified if bringing a personal injury, mass tort class action:

Castano really only put the brakes on these massive nationwide class actions... so to avoid the complex choice of law issue, need to limit the class to ONE state (that where the def acted is the state law that applies) Or bring a federal COA like in Mullen; have a colorable choice of law argument as to why only one state's law works. Bring a claims under settled laws

Standard for choice of law:

For a state's law to be applied, that state "must have a significant contact or significant aggregation of contacts, creating state interests, such that choice of its law is neither arbitrary nor fundamentally unfair."

Transfers of Venue under § 1404(a):

For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been [properly] brought or to any district or division to which all parties have consented.

C/E can only be used against:

LITIGATION LOSERS!

Jenkins

Mass tort case in 5th circuit that seems to go against the presumption of mass torts being improper for class actions. one of the first ex. of a relatively large certification that stood up on appeal. Court found that the common questions outweighed any difficult in the separate questions re damages, etc.

Morgan v. Deere Credit (The "Better Texas Rule")

NOT a correct application of the incompatible standards class; KEY: The inquiry under this rule is premised on FAIRNESS—someone is going to be screwed if we don't certify it --> this is where the better TX rule comes up empty... bc it's based on efficiency! TX is trampling class members' rights in the name efficiency -That's why fed courts don't follow this TX precedent^ (Advisory committee comments that the sole concern is putting def in a contempt position, which never happens when we're talking about monetary damages.)

3 Character Traits of the pedigree of class actions known as the Limited Fund

NOTE: all 3 are not always required but if you have none of the 3 then you're going to lose. 1) A true limited fund exists: The total of aggregated liquidated claims is greater than the fund available to satisfy them. (You can't artificially create a limited fund.) 2) Whole of the inadequate fund to be devoted to the claims. 3) Claimants to common fund treated equitable (pro rata)

Which parties must be a part of the second suit for Collateral Estoppel to bar the suit?

Originally, traditional requirement of mutuality (exact same parties). That req has eroded since. But NOTE - you can ONLY use C/E against parties who already had their day in court. Only against the litigation losers. Everyone is entitled to their one day in court.

Similar language in Rule 19 and Rule 24:

R. 24: Intervenor as of right is one with an "interest" in the action that as a practical matter might be "impaired" or "impeded" if they're left out. R. 19: Necessary party is one who has an "interest" in the action that as a practical matter might be "impaired" or "impeded" if they are left out.

Commonality Requirement

Rule 23(a)(2)- pointing out significant questions (that are disputed) shared by ALL members that will produce common answers that will drive the litigation for everyone. Must actually be significant question, ex- "Is def Wal-Mart an employer subject to Title VII won't cut it as a significant Q of law bc it does nothing to move the case forward.

Effect of Rule 42(a) consolidation:

Still two separate claims, but tried together before the same jury

First-to-File Rule

When overlapping (redundant) cases over the same dispute pending in two federal courts, the case filed first should have priority and proceed to the exclusion of the other (which should be stayed, enjoined, or transferred to first forum)

Contribution vs. indemnification

contribution is not all or nothing like indemnity it is... contribution is partial reimbursement (def pays for all damages under J&S liability which is more than their share so they get reimbursed by contribution from other tortfeasor)

Rule 23(c) permits:

notice to be given of certification in any class. But requires notice in a Rule 23(b)(3) class action and requires that notice include opt-out information. (Some courts also require notice, but not opt-out rights, in a mandatory class where monetary damages are being sought—see In re Monumental.)

Federal courts do NOT apply the first to file rule when a duplicative action is filed in:

state court. Apply Colorado River Doctrine!

Drafters of (b)(2) wanted to remove any doubt about:

the ability to have civil rights and employment rights claims pursued as a class action when injunctive or declaratory relief was sought --> belt and suspenders!

If the burden of proof of the two issues is different:

then Collateral Estoppel will NOT bar the claim (ex- criminal issue resolved does not mean civil issue is barred bc different BOP)

Courts are more lenient on the definition question/less concerned with it if:

there's not monetary relief involved

Statute's fix to the pl's autonomy suffering in MDL:

when pretrial phase is done, transferee ct (MDL judge receiving) remands the case back to the original district for trial (or all the parties may agree to allow the MDL judge to try the case. Or if the case was filed in the MDL judge's court before the MDL, or after, that's fine for MDL judge to keep)

If we have a litigation loser, then non-mutual collateral estoppel is:

permissible (but offensive is more rare bc it's te braodest possible reach of issue preclusion)

Any counterclaim that is not compulsory is:

permissive, BUT need to watch out for R/J and C/E principles which can make a technically permissive cc mandatory in effect

small exception to RJ:

pls effectively carve up their claim by seeking declaratory relief in prior class action and now seek damages, Court said RJ won't bar their suit bc prior case not certified to seek damages and everyone involved knew that (Consistent with idea that R/J shouldn't bar claims that couldn't be brought in the earlier case) (would also apply to Rule 23(b)(1)(A)).

In re Simon II Litigation (Punitive damages as a limited fund)

-Attempt to convert tobacco litigation into a mandatory class action just for punitive damages; Treat supposed constitutional ceiling on total punitive damages as a limited fund. -Class = ppl exposed to cigs that may have been hurt. Seeking only punitive damages, and that won't be given to them until they all est a right to compensatory damages in their individual lawsuits; -They say it's a limited fund by relying on Scotus jurisprudence that shows distaste of large punitive damage awards so they'll end up finding a constitutional limit on punitive damages so there will be a feast before the famine; Circuit court says no certification bc it would be letting jury set opinions as to what they think damages will be for every cig pl across the nation and that's a very speculative, theoretical "limited fund" which isn't enough to take away individual rights to sue the tobacco companies individually.

EXCEPTIONS to first-to-file rule:

-Heavy balance of convenience favors 2nd forum (Second forum just makes drastically more sense given the convenience of the litigants and witnesses) or -Special Circumstances, like: 1) customer action on patent case (If the indirect infringer (a customer of the infringing producer) is in the first suit, and the direct infringer (the producer/manufacturer) is brought in the second, the second suit should continue forward.) 2) bad faith forum shopping (if there's no good reason for the first forum aka party picks a place with no logical connection to the case or improper/unfair race to the courthouse)

Reasons for sufficient class definition:

-Helps court spot manageability issues early on. -Needed to implement remedy of damages "to whom do I make this check payable, sir?" and for giving individual notice (which is required when $ is sought) (Underwood thinks this is biggest reason.) -Helps a later court determine if Res Judicata or Collateral Estoppel applies.

When does it matter whether the counterclaim is permissive or compulsory?

1. When it's not brought in the first lawsuit between the parties; Issue is waiver (if I don't bring it, I lose it) 2. When it's brought in federal court but lacks independent SMJ. Issue is supplemental jx. (Compulsory counterclaims are always interpreted as within supplemental jx of fed court under 1367)

Rule 14 (generally)

Impleader: permits a defending party (either a defendant or a pl in response to a counterclaim) to bring others into litigation--but it is permitted in very isolated circumstances.

2 types of intervenors

24(a): As of right (once prerequisites are found the court MUST allow the stranger in) bc fairness demands them a seat at the table 24(b) permissive (court has discretion to permit them in so long as some basic efficiency is demonstrated by their presence)

Multi-District Litigation (MDL)

28 USC 1407-- The MDL statute permits the transfer of cases from one district to another for consolidated PRETRIAL treatment when: 1) there are more than one federal cases pending in different districts 2) that have significant common questions of fact 3) when it would serve the convenience of witnesses and parties and 4) promote the just and efficient resolution of cases. -Upon the completion of the pretrial activities, the judge must "remand" the case back to the original forum chosen by the plaintiff for trial (But this happens rarely- most cases settle, and the transferee court (the judge that the JPMDL selects to send everything to) can always still grant summary judgment! NOTE: 1407 applies only to cases in the federal court system. However, if the case was filed in state court and has been removed, and a motion for remand has been filed that hasn't been heard yet, the case can still be included in consolidation.

Allison Case

5th Circuit had held that under this test of cohesiveness, an employment discrimination class was okay under (b)(2) where additional $ sought was just backpay (a straightforward equitable remedy). This liability for $ "flowed directly" from the determination of D's illegal conduct and didn't require hearings to determine amount owed to each class member.

Rule 14 (text)

A defending party may as a third-party plaintiff, serve a summons and complaint on a nonparty who is or may be liable to it for all or part of the claim against it. But the third-party plaintiff must, by motion, obtain the court's leave if it files the third-party complaint more than 10 days after serving its original answer.

Boyer v. Snap-On Tools Takeaway:

A lot of courts have referenced this case as support for how impotent FJ is under 12b6 standard. Problem with the employee's release as the basis for finding no possible claim is when the reason for no good claim against D is the same reason why the primary nondiversity destroying d has no good claim - the no good claim reason has to be distinct for the FJ one, otherwise court is just ruling on the merits. Exculpatory proof beyond the 4-corners of the complaint cannot be considered.

Offensive use of non-mutual C/E:

A new claimant can sometimes hold a defendant to the same defendant's prior litigation loss on an identical issue. Ex: Same ex as above. Chuck beats GM. Jury finds brakes were defectively designed. Case #1; Six months later, sally's brakes fail in her suburban and she files lawsuit against GM. She sues GM for products liability due to defective design of brakes (same theory, same make/model/year of car). Case #2; -Can Sally ask trial court to find as a matter of law (partial MSJ) that GM's brakes were defective in her car? Maybe. Comes down to court's discretion, ask 2 questions: Did current P engage in unfair fence-sitting? Other reasons why app of doctrine here is unfair? there is a Clear limitation: Can't apply it against non-litigation losers.

Rule 19:

A person who is subject to service of process and whose joinder will not deprive the court of subject-matter jurisdiction must be joined as a party if the answer to one of the following three questions is yes: 1) Will court be unable to grant P complete relief without joinder? (This inquiry focuses only on the persons who are already parties; Complete relief = getting everything THAT party owes them.) 2) Will missing party suffer harm in the case from their absence? ("as a practical matter impair or impede the person's ability to protect the interest...") 3) Would existing defendant be exposed to risk of multiple or inconsistent judgments without joinder?

Rule 13(a) text

A pleading MUST state as a counterclaim any claim that—at the time of its service—the pleader has against an opposing party if the claim: (A) arises out of the transaction or occurrence that is the subject matter of the opposing party's claim; and (B) does not require adding another party over whom the court cannot acquire jurisdiction.

How is the SOL affected by filing a class action?

American Pipe case says when someone files a putative class action, everyone who fits definition of a class member gets their SOL tolled, even if the class ultimately doesn't get certified, even if the class members don't know. -So always check to see if a Class Action was filed if someone comes in with an injury that waited too long... Even if it's too late to opt out, you can still try. And if they deny it, you can just keep an eye on the action and make sure your guy still gets money, and if it hasn't been certified then go ahead and file individual.

Rule 23(b)(1)

An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition: (1) If prosecuting separate actions by or against individual members of the class would create a risk of: (A): Incompatible Standards Classes (concern for Def!) "Inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class." (B) Limited Fund Class (concern for class members) "Adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests"

Class Action Fairness Act

Biggest change added current 1332(d): Another path to fed court (see end of Exxon); minimal diversity rather than complete (takin' it to limits of Article III) and new amount in controversy for class actions $5 M—but aggregate! Sample application: Nationwide consumer class action—1 million class with $10 claims. Minimal diversity is assured and amount in controversy over $5M. Effect? Class counsel and Ds can choose federal forum in many more cases. Thought: More uniform decisions, more protection for class members, more protection for non-local corporations sued in "magnet" state courts.

An exception to Colorado River

Brillhart- fed courts have discretion to decide whether to hear DJ case... which implies they don't ever have to keep a DJ if they don't think it's necessary (they have discretion to decide if they think it makes sense to entertain such a suit, considering if it's redundant)

Effect of Walmart v Dukes holding:

Broad in the sense that it seems to prohibit hybrid class certification under 23(b)(2) but then narrow in the sense that it implies some hybrid classes are still okay under (b)(2): "[Monetary damages can't be sought under 23(b)(2),] at least where (as here) the monetary relief is not incidental to the injunctive or declaratory relief." •"We need not decide in this case whether there are any forms of 'incidental' monetary relief that are consistent with . . . Rule 23(b)(2)."

Effect of Collateral Estoppel

Don't be a litigation loser, or it may come back to haunt you. For ex- if Pam and Don are in car accident and one issue is whether Don was required to wear glasses while driving, if they get into another car accident the next week, Pam CAN sue Don again (no RJ bc it's a different T/O) but they CANNOT re-litigate the issue of whether Don was required to wear glasses (CE)

FRCP 56 (MSJ) category for assessing fraudulent joinder:

Asks regardless of what plaintiff alleged, is there proof to support or negate the claim? (highest degree of federal scrutiny of state claim) Under the guise of determining jx, it seems like court is determining the merits of the case (Critiques say this tramples federalism - requires courts to dig into the merits of purely state law claim between non-diverse litigants which they are forbidden to do)

Castano v. American Tobacco: (Fifth Circuit, 1996)

Certification was improper. Failure to consider variations in state laws; Distinguished from Jenkins bc "Jenkins court was not faced with managing a novel claim involving eight COAs, multiple jurisdictions, millions of Ps, eight Ds, and over fifty years of alleged wrongful conduct." Lack of predominance: In addition to significant individual issues on damages, reliance in fraud claims is an individual inquiry for each plaintiff. Class treatment not superior (aggregation shows skewed trial outcomes, creates insurmountable pressure to settle; Need prior track record of trials before conducting a grand experiment—but this is a novel claim ("immature"). Betting the whole industry on one verdict on one novel claim. Choice of law issues will be difficult and unmanageable; There is no judicial crisis here (yet or maybe ever) to justify resort to class certification; Complex bifurcation issues exist here (with comparative fault alleged))

Res Judicata

Claim Preclusion; bars re-litigation of the "same claim" Elements: 1) Must be the "same" claim (w the same burden of proof), arising from the same transxn or occurence 2) between the "same" parties (or those in "privity") 3) after a "final" judgment (final at the trial level) 4) on the "merits" (misleading; really just getting at what was the first court's intent, i.e., did it INTEND to enter a final judgment ; includes trials, summary judgments, 12(b)(6) dismissals, and even dismissals as a sanction (rule 37); on the merits does NOT include 12(b)(1) (no SMJ), 12(b)(2) (no PJ), 12(b)(3) (bad venue) or 12(b)(4)-(5) (bad service of process) NOTE: a voluntary dismissal (a "nonsuit") is NOT a final judgment

Class Action timeline

Class definition must be sufficient; 23(a) prerequisites met? (1) Numerosity (efficiency); 2) Commonality (efficiency); 3) Typicality (fairness); 4) Adequacy of representation (fairness)); Must fit into one of the Rule 23(b) categories; If certified, notice might be necessary (depends on category) and class counsel appointed; case progresses through discovery/motions/trial; to settle (or dismiss) a case once certified, need court's permission under Rule 23(e)

Mullen v. Treasure Chest Casino

Class of current and former employees of the floating casino sued claiming various respiratory ailments caused by condition of the vessel; Class certification affirmed; compared to Castano: 1 million vs. 150 - not bet the industry litigation...much smaller stakes (Smaller stakes courts more likely to let it) No choice of law issue - admiralty law (This was similar to Jenkins - all the plaintiffs governed by one law; This whole lawsuit is premised on settled area of law; Whereas the addition liability case was completely untested) Not a bet the industry kind of case like Castino!

Diversity jx

Complete diversity would be impossible in a nationwide class action... Ben Hur (1921 --> still good law today!) Says only the named parties must be completely diverse. (Unnamed class irrelevant) AIC originally governed by Snyder: Cannot aggregate class claims to meet the amount in controversy and Zahn: Class with small claims cannot piggyback on large class rep claim. But those cases struck most observers as inconsistent with Ben Hur. The rule was that you cannot ignore the unnamed class members' claims. Every single one must separately meet the AIC requirement. Consequence: Negative value state-law claims couldn't be brought in or removed to federal court. An out-of-state corporation stuck in state court letting that court determine issues—with large effects.

How to figure out if the monetary relief "predominates"

Correct inquiry goes back to idea of Cohesion: Rule 23(b)(2) classes are mandatory class actions. This is only fair when the class is homogenous and more a group than comprised of individual varying interests. -Clearest test --> "Where the need to address the merits of individual claim requires separate hearings, the efficiency gained by class litigation is lost" aka the monetary damages predominate. Focused on how the court will have to adjudicate the monetary damages "once monetary damages enter the picture...class cohesiveness is generally lost, bc 'monetary remedies are more often related directly to the disparate merits of individual claims'"(citing Allison)

Smilow v. Southwestern Bell: (Seventh Circuit 2003):

Damages usually not a problem in consumer cases where damages are not complex. Here, P has an expert who claims a computer can extract the amount owed each. Only when the damages issues are complex and burdensome do they overcome significant liability questions. The lower court lost sight of public policy: small, consumer claims are perfect for class treatment. Autonomy in negative value context is less important. Core Purpose of the rule is to vindicate the claims of consumers and other groups of people whose individual claims would be too small to warrant litigation. The Court Used decertification as tool to attack merits of case (wrongly), failed to appreciate predominance of common Q's, and lost sight of public policy.

Organization of MDL representation:

Defense side organization is simple bc probably going to just have their one firm representing them already. Plaintiff side is more difficult bc the judge will want to have one firm to talk to that can speak on behalf of all pl's. judge appoints an "executive committee" with leadership committees under them (divided up into different issues -- ex: law and motions committee to oversee briefing, etc., discovery committee to lead that, trial committee to lead the actual trial, settlement committee, etc.) So each pl's attorney will "pitch to leadership" and judge gets to decide who is on leadership (might have to send resume, essay explaining why, might even have a hearing on it)

In re Monumental (5th circuit, 2004)

Discriminatory insurance policies, charged higher premiums and gave lower benefits to blacks. Plaintiffs filed class action under 23(b)(2) seeking an injunction to stop collecting premiums from the discriminatory policy holders and reformation of old polices AND restitution of past excess amounts paid by blacks. Calculating restitution damages, while not simple, only requires objective input of numerical factors. No individual testimony from policy holders needed. A "virtually mechanical" task. So the monetary damages here do not destroy the cohesiveness of the class as a whole. Therefore the injunctive relief still predominates over the monetary damages sought and mandatory cert. is okay.

FRCP 11: Jurisdictional 2-step category for assessing fraudulent joinder:

Do 12(b)(6) review AND Pierce pleadings to search for good faith factual basis (middle level of federal scrutiny of state claim)

Class definition inquiry:

Do we have a class that can be defined in a manner that provides the current court and future courts the ability to determine whether a person is or was within the class?

2 possible ways to bridge the gap in discrimination cases and find individual employment decisions share a common Q:

If there was some sort of biased testing procedure to become a manager or if there was a discriminatory company-wide policy (like in Mosley v GM)

Limited Fund Class applicatoin

Due to a finite pot at the end of the litigation rainbow, the first to judgment get full relief while the stragglers find the pot empty. Depends on issues of fairness that help to clarify the limits of the mandatory rule 23(b)(1)(B) limited fund class action Essentially: All of the claims values added together exceed the def's assets so we need to make it a class action. Basically a Rule 23(b)(3) damages class squeezed into this cubby hole. -creating a trust with how much you're willing to spend is NOT a limited fund (FIbreboard)

Policy behind Rule 23(b)(3)

Efficiency is the only justification for this type of class, so must be VERY efficient to certify here -- "super efficiency" there's no fundamental fairness concerns mandating class treatment (e.g., no feast before the famine or attempts to save D from contradictory coercive injunctions). These cases don't HAVE to be handled as a class action. Efficiency is a great thing, but not as compelling of a case for aggregate representative litigation. And the individual desire for autonomy arguably greater on these damage cases.

Collateral Estoppel

Elements: 1) issue of fact (or mixed Q of fact/law 2) actually litigated (so default judgment, no; MSJ, yes; trial, yes) 3) determined by a valid and final jmt, and 4) the determination is essential to the jmt. (issue is necessary to the claim or defense)

Travis v. Irby Takeaway

Example of MSJ method. Piercing the pleadings is not identical to MSJ practice. P need not offer evidence of its disputed claim. D must offer evidence affirmatively negating the claim against the local D. D failed to offer evidence negating a possible negligence claim. So removal was improper and remand required.

Court's policy considerations for transfering:

Fairness and Efficiency highlight a court's typical motivations to transfer. But at these come at the expense of the P's autonomy to choose his preferred forum. -- Normally that choice "should rarely be disturbed." But - 1404 does serve as a limitation where P can file his suit even though the general venue statute is extremely broad. Only the plaintiff's first choice is entitled to deference!

Does incompatible standards class category apply to numerous requests for monetary damges?

Fed courts have fairly uniformly stated now that monetary damage cases do NOT satisfy this cubby hole. Even if inconsistent rulings, doesn't mean incompatible standards. Def is NOT put in a position of not knowing how to act bc they can comply with all of the judgments.

What do all courts agree on re fraudulent joinder?

Fraudulent joinder occurs when plaintiff can't "possibly" recover against the local defendant. Removing party carries a "heavy burden" to demonstrate removal jurisdiction exists.

Walmart v. Dukes

Hybrid class action (with injunctive relief + $$) does violence to the history behind rule 23(b)(2) bc it was to permit civil rights claims to stop wrongful practices, not recover damages; does violence to structure of rule 23 bc b(1) and b(2) share strongest justifications for class treatment--fairness. Mandatory nature makes sense. (b)(3) more of an adventure and efficiency is the only justification and individual interest is greater. Need extra procedural safeguards (notice, opt out rights, findings of superiority and predominance of common Qs) Individualized monetary claims belong in Rule 23(b)(3). pl's still argue that mere "backpay" claims don't violate 23(b)(2), relying upon "negative inference" in Advisory Committee Notes and idea that they're just "equitable." Court rules: But Rule itself doesn't mention hybrid possibility •Rule doesn't distinguish between "equitable" and "legal" but between injunctions/declarations and everything else. So calling the $ claims "restitution" and "equitable" doesn't change anything. Court finally overrules Allison precise holding—says backpay claims in employment discrimination cases not merely "incidental." Require individualized hearings so employer can show that its particular action as to an employee might have been justified by non-sexual reasons.

Rule 42(a)

If actions before the court involve a common Q of law or fact, the court may (1) join for hearing or trial any or all matters at issue in the actions (even if Rule 20 joinder is improper, court can use 42a to trump rule 20 not being met)

When class seeks injunctive and monetary relief (hybrid rule 23(b)(2) class action):

If injunctive relief is the "predominant" relief sought (and the monetary damages are merely incidental) then b2 cert might be appropriate Ex- you're paying men more than women and you need to stop (injunction) --> and then to make up for it in the past, you need to pay some backpay (the backpay is just incidental, not predominant) --> 23(b)(2) cert is appropriate. But if the monetary damages are "predominant" then Rule 23(b)(2) cert is NOT appropriate. -Advisory committee Note: This subdivision does not extend to cases in which the appropriate relief relates exclusively or predominantly to money damages."

Is PJ an issue in MDL?

In re Aviation Products Liability Litigation: JPMDL Picks Indiana (it's where target D located) and Seattle judge—says PJ not a concern for transfer because it's just for pretrial... Kinda questionable? Never seen a SCOTUS ruling on that... (Many cases get resolved without a trial, and we always care about PJ still...)

Example of a manufactured conflict:

Incentive fee award contracts if done in secret (in West publishing, they were done in secret and made in a contract with a sliding scale)

Notice given by publication in Eisen v. Carlisle & Jacquelin case:

Insufficient notice. The rules drafters were basing it off of DP requirements! Rule 23(c)(2) is mandatory. "Must" give individual notice to all in class who can be readily identified ("best notice practicable"=individual mailed notice) -- Rule 23 can't be tailored to "fit pocketbooks of particular plaintiffs."

Even when a contract obligated a co to defend a lawsuit in good-faith, another co had a right to intervene under Rule 24 bc:

It had a different litigation strategy and planned to raise the arbitration defense which the current def was not going to raise, and the court said that was sufficient to overcome the presumption that the existing party was an adequate rep. Allowed intervention (Travelers Insurance case)

Effect of supplemental jx statute passed in 1990 (Section 1367) on diversity jx AIC requirement:

Literal interpretation of 1367(a) & (b) showed that Zahn had been overruled by statute: If one class member had a large claim (that met amount requirement) and that all the named parties were diverse (ignoring unnamed class members under Ben Hur), there was nothing in statute to prevent class members with small claims from piggybacking. Circuit courts split. In Exxon, Supreme Court decided in 2005 to read statute literally even if it was a scrivener's error (the legislative history suggested no intent to change Zahn). Effect --> Now small, negative-value state law class actions might find a federal forum so long as one class member had a big enough claim on its own to provide the jurisdictional anchor. But if all class members had claims below $75,000 still no federal forum even if the case, in the aggregate, were worth millions of dollars. (Since Snyder still good law.)

If there are a bunch of cases that we can't get transferred to one venue then 42A is no good, what is the possible solution?

MDL! Absent MDL, defendant's biz operations are totally overtaken by hundreds of lawsuits. Your job becomes giving depos! And the possibility for inconsistencies across depos is likely. Inefficient and bad results for defendant and The convenience factor usually weighs way in favor of defendant. P's witnesses are not where D is likely!

Are there Equitable exceptions to RJ Doctrine?

No! It's more than a procedural technicality. It's a rule of fundamental and substantial justice, public policy, and private peace.

Can MDL judge do a 1404 transfer to him/herself over the def's objections?

No, only okay if all parties agree.

Are a JP's MDL orders reviewable on appeal?

No.

Does the D's theory against the 3D have to be the same theory as the pl's theory against the D?

No. Doesn't matter that P's theory against D is different than D's theory against the 3D.

Do attorneys fees added onto injunctive relief take it out of 23(b)(2)?

No. that really is just incidental.

Does a request for different kind of damages affect whether C/E bars a second claim for the litigation loser?

Nope. If Mom and siblings W/D goes to trial and mom loses. Then mom files another suit for her individual personal injuries. Mom's later suit barred b/c her interests were adequately represented in the first instance. The fact that the damages requested differ between the cases doesn't change the fact that it's the same T/O. She's a litigation loser!

What does "predominate" NOT mean (acc. to 5th circuit)?

Not asking what the "prime goal" is in the case (determining which relief is greater in some "quantifiable sense" is a wasted effort. Not a question of which relief more important to the pl. (rejects what 9th circuit said) Not a question of whether a "reasonable plaintiff" would bother to file the suit if no money damages involved (rejected 2nd circuit) Not a semantics test as to whether relief was "equitable" or not. (Scotus in Walmart agrees with that.)

Where can an MDL be filed?

Parties often come to the panel with suggestions of who the judge should be; They pick that suggestion based on what they think is more advantageous to them but Panel considers various factors like the workload of the suggested judges, places that are easier to get to (A lot of MDL in FL, NJ, TX, St. Louis); Could be connected to the case in some way (like if a lot of the cases are in that area) or could be just based on a circuit where they haven't had a MDL in a while and open docket); Can pick a district court judge or a circuit court judge, could bring in a visiting judge, etc. --> very flexible!

Rule 20

Permissive Joinder: requires a pl to demonstrate two prerequisites before she can turn a simple one on one case into a case involving multiple parties; joinder of a co-plaintiff may occur only IF 1) they assert any right arising out of the same T/O or series of T's/O's (asks whether joinder is FAIR) AND 2) any question of law or fact common to all plaintiffs will arise in the action (just need at least 1!) (asks whether joinder is EFFICIENT); Same test for defs just mirroed (1) if any right arising out of same T/O "is asserted against them..."

Rule 18

Permissive joinder is kind of misleading - I may join all related claims against you - may implies that I also may not. R18 doesn't require you to bring all your related claims, BUT res judicata DOES. Use it or lose it.

Who pays for notice costs?

Plaintiff. Court cannot put notice costs on D (until D determined to be liable to class). So court must decertify and dismiss case (since P refuses to pay).

Rule 23(b)(3) Class Proponent Must Show:

Predominance. That the common questions shown (in 23(a)(2)) outweigh the individual questions among the class claims. Superiority. That a class action is "superior to other available methods for fairly and efficiently" resolving the claims. List of non-exhaustive considerations listed in rule. (Mass torts: Cuts against certification; Negative value: cuts towards certification) Manageability. That the court can handle the case, both at pretrial and trial, effectively.

What does the transferee court have the power to do in MDL?

Primary goal of MDL treatment is to get cases ready for trial. So for example (In Re Blood), if transferee court can't limit # of trial witnesses, it can't effectively get the case ready for trial... so they could! Pretrial cannot be conducted without making decisions that affect trial. Pretrial includes everything that happens before voire dire. Trial court (after remand) can always modify if circumstances justify it --> JPMDL has no authority to bind the trial judge.

Two major time periods in Class Action world:

Prior to 1966 (1938 FRCP) included "true" class actions (multiple claimants vindicating "joint" claim), "hybrid" (several rather than joint claims involving specific res/property), and "spurious" (several claims united only by common Q but impotent--more an "invitation to joinder" bc one person's claim gets resolved and affects other similarly situated plaintiffs only if they go out of their way to join the action); Modern class actions (after 1966 when it was fully revised by drafters)

Rule 13

Rule 13 permits all counterclaims and requires joinder of some counterclaims

One key difference in Rule 24(a) and 19:

Rule 19 does not have that third requirement (they have to be brought in even if someone else is in there protecting their interest)

Despite similar language of rule 19 and rule 24, which should be interpreted more narrowly?

Rule 19 should be interpreted more narrowly than Rule 24 bc it would be a mess otherwise... for example, it would mean that every property owner in the vicinity of the abortion clinic (in Planned Parenthood) would have to be joined as a necessary party under Rule 19 before the court could rule on the merits -Notice that Rule 24 doesn't demand joinder once another party already in the case is aligned with the intervenor as an "adequate representative." In this way Rule 24 is self-limiting unlike Rule 19.

Which rule is a narrow exception to the plaintiff's autonomy to determine the scope of the action and when would that apply (policy reason)?

Rule 19: Mandatory Joinder; Applies in exceptional scenarios where fundamental concerns of fairness demands that the pl join some missing party bc fairness concerns outweigh pl's autonomy, not for mere efficiency) NOTE: don't have to show it WILL for sure be unfair without joinder, but just that there's a potential for unfairness.

Numerosity requirement

Rule 23(a)(1): "class is so numerous that joinder of all members is impracticable" ("no magic number" (though 40 is often cited); Goal: to have enough members to "achieve economies of time, effort, and expenses"; Shows preference for traditional individual litigation where feasible); flexible rule that depends on circumstances (class limited to one area may not be certified even if numerous bc they could easily sue together under rule 20 or seek to intervene with court's permission under rule 24)

Typicality Requirement

Rule 23(a)(3): "a plaintiff's claim is typical if it arises from the same event or practice or course of conduct that gives rise to the claims of other class members and if his or her claims are based on the same legal theory." This creates a relationship of possible trust. The rep's interest "will be aligned with those of the represented group, and in pursuing his own claims, the plaintiff will also advance the interests of the class members" --> assumes self-interest!

Adequacy of Representation

Rule 23(a)(4): Demands that any proposed class reps "will fairly and adequately protect the interests of the class"; Helps ensure that the representative litigation will be conducted in a fair manner on behalf of the absent class members; 2 major concerns: 1) Disloyalty (a) inherent conflicting interests (Hansberry); Is there a conflicting interest btwn the rep and the absent members? b) Manufactured conflicting interests; Nothing inherently wrong with the class rep but like in West: the lawyer had drafted agreements that put the reps in a conflicting position with the rest of the class...) -Takeaway: each "class" needs an adequate representative who shares their fundamental position in the lawsuit 2) Representative's incompetence

Hypo: If Chuck is suing GM for defective brakes on suburban and Jane has this same claim against GM, how would the rules apply:

Rule 42(a) would apply if Jane has sued in the same district court Rule 24(b) would apply if Jane decides to ask the court to let her in Chuck's lawsuit Rule 20 would apply if Chuck asks Jane to join him as a co-pl (but must be same T/O)

Federal Q JX

Section 1331 "arising under" jx is easy: No new class action rules. Same concepts you learned about in civil procedure as to when a claim arises under federal law applies in the class context --> If class rep pleads a federal cause of action, the federal court will have original SMJ and case can be filed there or removed to federal court by the D.

Proper remedy for misjoinder:

Severance! A finding of misjoinder just means each P has to sue separately, or sue the defendants separately, not result in dismissal.

PJ Rules for 23(b)(3) and (1)-(2)

So long as Rule 23's notice and opt-out provisions complied with (in a (b)(3) damages class), court will always have PJ over the class. if it's a 23(b)(1)-(2) mandatory class—where there's been no notice or opt-out rights: "Our holding today is limited to those class actions which seek to bind known plaintiffs concerning claims wholly or predominantly for money judgments. We intimate no view concerning other types of class actions." -Prevailing view—cohesive nature of other class actions permits the class rep's express consent (for court to hear the case) to bind all other class members.

Rule 11 Standard - Hybrid for assessing fraudulent joinder:

Test: Jurisdictional Two-Step: This is medium scrutiny. (1) 12(b)(6) review and then (2) pierce pleadings to search for good faith factual basis. First, court looks at the pleadings to see if plaintiff has pled a potentially viable claim against the local defendant. Second, court looks at evidence regarding the claim (not to determine if it has merit), but to see if there was enough factual support that the plaintiff has joined the non-diverse defendant in good faith. (Criticisms: Combines the worst flaws of both, and adds a guess at "good vs. bad faith." This is inconsistent with Mecom case directive that motive is irrelevant to the inquiry. Why should the plaintiff's motive have anything to do with a federal court's exercise of its jurisdictional power?)

Rule 23(b)(3):

The court finds that (1) the questions of law or fact common to the class members predominate over any questions affecting only individual class members, and (2) that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. The matters pertinent to these finds [superiority] include: -the class members' interest in individually controlling the prosecution or defense of separate actions; -the extent and nature of any litigation concerning the controversy already begun by or against class members; -the desirability or undesirability of concentrating the litigation of the claims in the particular forum (Can you have a trial?); and -the likely difficulties in managing a class action. (Underwood doesn't know which way this factor cuts)

How does the first to file rule apply to two dueling state court suits?

The first to file rule, and its exceptions, also apply the same with regard to state court actions- even those involving different states!

venue for MDL

The venue rules, etc. go out the window bc you can also just file directly in that court ("direct file")

What is the essential difference between the forum non conveniens doctrine and 1404(a)?

Under §1404(a) a court does not have authority to dismiss the case; the remedy under the statute is simply a transfer of the case within the federal system to another federal venue more convenient to the parties, the witnesses, and the trial of the case (And the burden that a moving party must meet to justify a venue transfer is less demanding than in the case of a forum non conveniens dismissal and the consequences of a FNC dismissal are greater than a 1404 transfer bc 1) SOL issue-- pl has to refile the lawsuit whereas under 1404, pl doesn't have to refile, the case is simply transferred... although courts can condition grant of FNC on the def waiving their SOL claim; and 2) change in law issue-- the second court where pl is forced to refile does not apply the substantive law of the originally chosen forum, whereas under 1404, the transferee court is supposed to apply transferor court's substantive law... although unsure if they really do this in practice)

Mosley:

Very liberal application of rule 20 bc they were all discriminated against on different occasions, maybe by different supervisors but court still allowed them to all be joined bc it found the same T/O was a company-wide discriminatory policy

One of the most expansive class actions ever:

Walmart Stores, Inc. v. Dukes; Brought by 3 women alleging suffered discrimination at different Wal-Mart stores at the hands of different managers: 1 demoted, 1 mistreated ("doll up"), and one passed over for promotion and then fired. KEY: Did not allege any company-wide discrimination policy/conspiracy. Just that many individuals store managers acted in this fashion. -23(a)(2) --> no question of law or fact that united all of these claims; Supreme Court reversed certification finding that there was no significant advantage to trying it as a Class Action

Advantages to being on leadership in MDL:

We want to be in charge, Our client will want us in charge, More money for us, More cases bc other ppl who are hurt will go to their local lawyer and local lawyer will likely refer that case to us bc we're in charge -Individuals appointed to executive committee and then they'll help fill out the roster of the sub leadership committees (typically 30-40 lawyers) but if you are on leadership, your firm has to put up the money for hiring the experts, travel expenses, document portals, etc.

Rule 23(b)(2):

When a def has acted in the i) same manner toward ii) a class of people that might be iii) entitled to injunctive or declarative relief in response, the case should be certified as a mandatory class.

Rule 24 (generally)

When a party--not invited by either pl or def--shows up and wants to join.

CO. River doctrine only applies to narrow set of circumstances and fed court is likely to end up keeping the case unless:

all the factors heavily favor state court

Colorado River Doctrine

When duplicative suits are between a federal court and a state court, the fed court may decline jurisdiction due to "wise judicial administration" only in "exceptional circumstances," (bc they have an unflagging obligation to exercise jx given by Congress!) considering: -Order of courts assuming jx over property (in rem only) -Inconvenience of forums -Desirability of avoiding piecemeal adjudication -Order in which concurrent jx obtained (Courts applying this say it's not about who filed first, it's about which case has progressed further!) -Adequacy of state court to protect parties' rights and -Whether federal law issues present in the case (The presence of a federal question is a MAJOR factor weighing against surrender. Even when the issues are all state law, this factor weighs in favor of surrender only in rare circumstances. (Stewart)

"Fail safe" class

Where the class definition presumes the merits of the litigation -- the class is defined by people with prevailing claims against def; Ex: "victims of def's illegal and monopolistic price-fixing conspiracy" -The definition precludes the possibility of an adverse judgment against class members bc they either win or are not in the class

Can Rule 13a bar second suit even if the first lawsuit is still pending?

YES (otherwise there would be a giant loophole in 13a)

Is a Rule 14 claim proper even if we don't know for sure whether the def will have a right to contribution/indemnification from the 3P?

YES. Rule 14 lets the claim happen prematurely so that if def does lose to pl, then 3P def is already there in that same trial to have to reimburse/indemnify the original def. --> EFFICIENCY

Can MDL judges certify class actions?

Yes.

Can a class member intervene as a party?

Yes. Even though to be certified as class action the court would have already had to have found there was adequate representation... "Adequacy" for class certification is different than Rule 24 standard (Under Rule 24, different strategies/personal antagonism can be sufficient to justify intervention, whereas the main inquiry for adequate rep in Class Action is just ensuring there isn't a conflict of interest.

does the first to file rule apply if the same plaintiff is the one who filed both suits?

Yes. If not, it would entail the danger that pl's engage in forum shopping or judge shopping if they see a storm brewing in the first court / start getting adverse rulings after filing suit, then they would just try to go to a different court.

All Rule 42 requires for consolidation is:

a common q of law or fact

Defensive use of non-mutual C/E:

a party defending a claim can hold the claimant to a prior adverse finding from a prior case against another party where the SAME CLAIMANT lost the same issue. Ex: Chuck sues GM for defective brakes in the Suburban. Jury returns a verdict that there was no defect in the brakes. Chuck is the litigation loser. So Chuck then sues Acme Brake manufacturer, which supplied the brakes to GM, alleging brakes were defective again. Defensive non-mutual C/E would permit Acme to use C/E "defensively" (like a shield) to defeat the claims by Chuck - the litigation loser - assuming we have the same issue etc.

Rule 24(a)

a stranger has a RIGHT to intervene as a party if a statute permits (e.g., workers comp) OR if the stranger has an interest in the lawsuit that might "as a practical matter" be impaired or impeded unless "existing party adequately represents that interest." (FAIRNESS)

In order for a dismissal for forum non conveniens to be proper - there must be:

an alternative forum- which exists if: 1) it provides an adequate remedy (Only if the remedy is so clearly inadequate that it is no remedy at all.) AND 2) D is amenable to process (In practice, a court will condition a FNC dismissal on D consenting to the jurisdiction of the foreign tribunal)

For claims to be barred, they must have been:

available to the pl at the time of the first action (example- Ferrarri case, couldn't bring her federal claims at the time she brought her state claims bc she didn't have her right to sue letter yet)

Most flexible type of class action bc:

can be applied theoretically to any different type of lawsuit. What binds this class together is simply the amount of overlapping issues among the class members' claims.

What does effectuating either goal of class actions harm?

class members' autonomy to bring and manage their own claims

PJ over plaintiffs in class action is usually determined by:

concept of "implied consent" will substitute for minimum contacts. Consent implied from their receipt of notice and failure to opt out. (If P objects, they can opt out! Notice and opt out rights + a failure to opt out = PJ) While non-resident class members have some legitimate interest at stake, due process is less demanding here because unlike a D in a lawsuit, plaintiff class members do not have to do anything.

application of rule 23(b)(1)(A)

concern for the def! cases where the proposed class action seeks common injunctive or declaratory relief for the class against def based upon the same challenged conduct of the def, problem is for the defendant bc he doesn't know how to act! Just have to show the POTENTIAL that courts could give inconsistent or varying adjudications

How do you get paid in MDL:

contingency fee for your clients and a "common benefit fund" --> A tax that goes on attorney's fees for all of the 1000 cases that everyone has to pay in.... That will pay for all of the work that was done on all of those cases; Covers attorney's fees for the leadership and then all of the expenses like experts, etc. -Common benefit fund will be a percentage (typically around 3%) of the contingency fees -We divide the common benefit fund up and we will present judge with how many hours we spent on it, etc. and judge won't want to deal with that so judge sets up a "compensation committee" which is probably the same leadership people....

Indemnification might exist by:

contract or operation of law (often in guilt by association context like lower level seller is found liable or employer vicariously liable for employee)

Courts disagree as to when can't a plaintiff "possibly" recover/ how to analyze that:

courts fall into one of four categories: 1) 12(b)(6) standard—majority perhaps 2) MSJ (FRCP 56) standard—emerging 3) Rule 11 standard—some recent (district court support) 4) Confused circuits—no consistency whatsoever

What is an example of "any question of law or fact common to all plaintiffs will arise in the action"

damages! Even if the question of liability is v different. And a single question is usually enough as long as it's substantial enough

A successful forum non conveniens motion results in:

dismissal! Tells the plaintiff to go refile in that other forum; If P tries to file the case anywhere other than where the forum non conveniens order dictates - the "law of the case" will likely result in the dismissal of the claims.

If you have do not have a right to intervene by statute, then the question becomes:

do you have an interest... 3 part test! An applicant is entitled to intervene if he proves: 1) that he has a recognized interest in the subject matter of the primary litigation (must be more than peripheral or insubstantial; must be significantly protectable interest; ex in PP case, the CCA group framed their interest as property value bc property / financial interests is fundamental right and if they'd said their interest in opposing abortion clinic was bc they were pro-life, that would not be enough-- moral/philosophical/political type of interests are not enough bc millions of others have that interest too) 2) that his interest might be impaired by the disposition of the suit; AND 3) that his interest is NOT adequately represented / protected by the existing parties (Just show a different strategy or something small, doesn't matter if someone already in there has the same opinion/position as you. Ex in PP case: the present defs have less money so they may be more willing to settle, etc. which is enough to let the intervenors come in)

Test for Rule 14

does substantive law recognize a possible claim for reimbursement by D against 3D--if P wins primary suit? R. 14 is limited to "derivative" claims—claims that will possibly arise based upon outcome of the primary case. This is the "heart of impleader."

Colorado Abstention only applies to:

duplicative and parallel proceedings - not to simply related cases. Determining whether different proceedings are parallel involves asking whether they arise out of the same facts and involve essentially the same factual and legal issues between the same parties. NOTE: Cases may not be duplicative if the parties are not identical.

Effect of RJ:

finality for the resolution of particular disputes between same parties & encourage to bring all the COAs at once. Promotes efficiency and fairness but the doctrine limits the autonomy of the claimant. In essence, this doctrine tells Pam in the one case, she must sue Don for all the damages in one case.

Court has _____ in saying how the publication notice must be done, etc.

great discretion- Ex- Ticketmaster class action notice posted in the "life section" of news publication bc they said that's where the potential class members would look (But really they didn't want them to find it)

If you aren't on the executive committee, how does that affect your case:

if you're not on it, you don't take depos for your client, you don't decide whether to file the MSJ, you're not in the settlement discussions (although your client isn't required to accept the offer). If your case gets remanded and comes back to you for trial, you get a box with the depos, etc - all the discovery and pretrial rulings, what claims you can advance in the trial. You're stuck with those outcomes! You can't redo the depos yourself. Whatever you get in a judgment is subject to the common benefit fund.

Rule 14 is even more limited than other rules bc:

it's an exception to the pl's autonomy in deciding WHO is in her litigation

Def cannot file a Rule 14 claim for:

its own damages to get from the third party def. It is only proper where you have a claim for reimbursement. But if def impleads 3P for contribution bc def IS liable to pl but wants contribution/reimbursement from 3P, then that is proper rule 14 claim bc it springs to life based on the pl's claim against def. And once a proper Rule 14 claim is brought, def could THEN add a claim against that 3P def for the def's own damages under Rule 18

The claim supporting impleader must always be based on:

secondary or derivative liability as the applicable substantive law would allow. Rule 14 allows a defendant to bring a third party into the case prematurely - so they can get the contribution or indemnification, and only in limited circumstances. D can always still choose bring a separate suit against the 3rd party.

Unless joinder is challenged by motion, Rule 20 is:

self-effectuating. The original complaint likely will not even reference Rule 20. Rule 20 joinder can also occur later, by Rule 15 amendment

Rule 23(e) demands:

some form of notice when court approves a settlement. Any class member may object and participate in "fairness hearing." Form of notice at discretion of court.

Both forum non conveniens and motions to transfer under 1404(a) balance:

the deference afforded to the plaintiff's chosen forum against private and public interest factors. public interest factors: (1) the administrative difficulties flowing from court congestion; (2) the local interest in having localized interests decided at home; (3) the familiarity of the forum with the law that will govern the case; and (4) the avoidance of unnecessary problems of conflict of laws [or in] the application of foreign law The private interest factors are: (1) the relative ease of access to sources of proof; (2) the availability of compulsory process to secure the attendance of witnesses; (3) the cost of attendance for willing witnesses; and (4) all other practical problems that make trial of a case easy, expeditious and inexpensive.

Claims logically related and therefore arise from the same T/O for Rule 13 when they involved:

the same "aggregate of operative facts" (sometimes called the "common nucleus of operative facts" test).

When might the court find there was an "unfair race to the courthouse" and what is the effect?

the first to file rule it is NOT a mandatory rule but a discretionary presumption about case priority ("comity") and the court can ignore the first to file rule if the first case is the result of an improper race to the courthouse, usually when a party files an anticipatory lawsuit seeking a declaratory judgment soon after receiving a demand letter (ex- Big East v. WVU; Big East sent WVU a demand letter threatening to enforce their contract so WVU goes and files a DJ 3 days later, which the court said was a classic anticipatory lawsuit and improper race to courthouse (so first to file rule didn't apply)

Pl loses their deference to choice of forum when:

the pl is not from the chosen forum so there is no reason to presume convenient. When the plaintiff doesn't file in their home you lose your deference!

Primary purpose of Rule 20:

to promote trial convenience and expedite the final determination of disputes, thereby preventing multiple lawsuits."

When is removal impossible even if there is complete diversity?

§ 1441(b) limits diversity removals by precluding removal (even if there were complete diversity) if a local defendant joined and fraudulent joinder--a court-created exception to complete diversity requirement.

Pros of MDL treatment:

•Huge potential efficiency gains in discovery •avoid duplicative written discovery requests •avoid same witness being deposed over and over again •avoid being whipsawed as target litigant by competing demands •Inject sense of organization and sanity into process (slow things down) •Consistent rulings on pretrial matters •common legal issues can be briefed, argued, and ruled upon once •Global settlement discussions with chance for peace •Opportunity for "bellwether" trial to fuel settlement talks

Cons to MDL:

•Non-target litigants get caught up in "black hole" •Can create inefficiencies for some parties •Can delay resolution of particular cases •Often results in particular counsel losing control of their case •Can lead to plaintiffs paying counsel fees to lawyers they never hired

why does the vertical forum battle make a difference?

•Plaintiff win rate in diversity cases originally filed in fed court—71% •Plaintiff win rate in diversity cases filed in state and removed—34% •Notice: Above stats both from federal forum but remarkably different. The lower win rate when the case was removed shows that counsel do a good job selecting their initial forum. Depriving P counsel of that choice is a powerful weapon for a defendant.