Civil Procedure II

Nearing the end . . .

Sadly for me (and probably me only), this is our last week of class.  It has been a wonderful ride.  I just wanted to take a second to let you know how much I enjoyed you all this semester.

This week, we will finish up Summary Judgment and then cover Directed Verdicts, Judgment Notwithstanding the Verdict, and Motions for a New Trial.  If time permits on Thursday, I will finish up our Jones v. Clinton adventure with some postscripts on the case.  I also will give you a sense of what Claim Preclusion and Issue Preclusion are as an FYI (not on the test!).

I can also schedule a Review Q and A whenever you think it would be helpful.  Let's vote on it in class this week!

Tips for Thursday's Class

Think about the following items for Thursday's class.

1.  Articulate President Bill Clinton's (BC) argument that the evidence Paula Jones (PJ) seeks about his sexual history is irrelevant.  Would any scoop on his sexual history bear relevance to the case, in his estimation?  What is PJ's position?

2.  How did BC raise this issue?  What was the procedural vehicle, in other words?  Did PJ make a motion herself in response to BC's motion?  What was it?

3.  What is BC's argument regarding his privacy/embarassment in answering certain interrogatories and Requests to Admit?  Are you persuaded by any of his arguments?  Clinton's counsel was creative and arguably persuasive.  Do you think so?

4.  How did the Judge rule as to both issues (not relevant and too private)?  Does she buy any of BC's arguments?  Which ones?  How does she tailor the discovery about BC's alleged sexual liaisons or actions?

5.  How do courts view the privacy interests or undue burden concern of non-party witnesses during discovery?

6.  Did the court place any limitations on the depositions of the third-party witnesses?

7.  What is the attorney-client privilege?  What does it cover?

8.  Why did the Upjohn Court reject the control group test?  What is/are the rationale(s) behind the attorney-client privilege?  Why won't Upjohn create a broad zone of silence over the affairs of corporations?  What does the Court say on that front?

9.  What is the work-product doctrine?

Comments for the Week

Hello, Sportsfans!  Here is a post to inspire comments and discussion.  Be well!

Supplemental Jurisdiction Hypos for Review

Hypo 1:

Abe from Nevada, a fire fighter, sues Gary, his firehouse supervisor who lives in Nevada, for violating his federal civil rights by engaging in race discrimination.  Abe alleges that Gary allowed and encouraged the fire fighters under his command to engage in race discrimination.  Abe also includes Charlie as a defendant.  Charlie, a Nevadan, is Abe's co-worker.  Because Charlie cannot be considered Abe's employer as Gary can be, Abe asserts a state law discrimination claim.  Is there supplemental jurisdiction over Abe's claim against Charlie?

Let's change the facts a bit.  Now Abe from Nevada just sues Jack, a co-worker who lives in California, for state-law discrimination claim.  Jack insists that Charlie mentioned above is a necessary party.  What are your thoughts on the permission and power issues?

Hypo 2:

Student Todd Oldham sues his law professor Ryan Decorator for federal civil rights violation.  In his suit, Todd alleges that the professor discriminates against him in class on the basis of his age (i.e., over 40).  Can Todd include in the lawsuit a claim for breach of contract since the professor also failed to pay him for his research assistance?

Cheerio!

Leaping into Exxon

Just a little review before class on Clark and Zahn to enhance our discussion of Exxon.  Clark held that every plaintiff must satisfy the money amount under 1332 in a case where a co-plaintiff did not but one plaintiff did.  Zahn involved a class action where the representative's claim exceeded the money amount (it was less than 75K in 1973 when the case was filed, FYI) but other class members' claims did not meet the money threshold.  Following Clark, the Court refused to exercise ancillary jurisdiction over those class members whose claims failed to satisfy the money amount and dismissed those class members from the case. 

Thus, Clark and Zahn are the factual grandfathers of Exxon, so to speak.  In Exxon, we have two cases before us.  One involves a class action of gas station owners suing Exxon for overcharging for fuel where the representative meets the money amount but other class members do not.  And the companion case involves a lawsuit by a young girl who was severely hurt by a Star-Kist tuna can (I am not kidding) and whose claims exceeded 75K.  Her co-plaintiffs in the case are her folks who sue for emotional distress but who claim less than 75K each.

But Exxon arises in 2005, fifteen years after 1367's passage.  So the question is whether the Court interprets 1367 as overruling Clark and Zahn.

See you in class!

Odds and Ends

In our last class, we asked how a class representative might arguably satisfy the typicality standard of Rule 23(a) but not the adequacy of representation prong.  We know that typicality focuses on whether the representative possess the same interest and suffers the same injury as the class members.  Adequacy of the representative himself/herself hinges, at least in part, on whether the representative may have interests that are antagonistic to the interests of the class.  To my mind, there is no doubt that the former question as to typicality sweeps in, and overlaps, the question at issue in the latter as to adequacy.  But consider this scenario where the two arguably might come down differently.  American Airlines overcharged passengers by $50 during the fall of 2006 in violation of antitrust law.  The class representative, Sam Morris, overpaid $50 on a flight last semester as had the rest of the class.  The district court certified the case as all of the other factors were met.  Just before the pre-trial conference, the class representative's father, Joel Morris, got a job as the CFO of American Airlines.  The representative conveyed that fact to the Judge and the lawyers in the case at the 16(b) conference.  Sam now has a potential conflict of interest with the rest of the class that he did not have at the outset of the case.  If I were counsel for American Airlines, I would no doubt argue that decertification was warranted on the grounds of that conflict (and inadequacy of the representative) and the now lack of typicality.  Sam's lawyers could insist that Sam still wants his $50 dollars back like the rest of the class but they will have a tougher argument regarding the conflict.  Thus, Sam's lawyers should amend the class complaint and substitute Sam for someone else who overpaid by $50.

I spoke to Prof. Richard Boldt about whether the plaintiffs can be awarded 200% of their injuries.  They cannot; what typically prevents that from occurring is that joint tortfeasors not sued together will seek contribution from each other.  We will soon see that Supplemental Jurisdiction under 1367 supports impleader by non-diverse 3PDs.  More on that next Monday.

The Joys of Joinder: Claims, 3PDs, and Indispensable Parties

Hello, Sports fans!  Another Sunday, another round of tips for the week . . .

Let's begin class with a hypothetical problem to wrap up Rule 23.  On page 795, note 1, Yeazell asks us to imagine an in-state student seeking to bring a class action against her state school protesting increased tuition for 2,000 out-of-state students.  She seeks to enjoin the state university from enacting the tuition hike.  Let's see if the court will certify the class and note the information we might need to figure that out.

Consider a riff on that hypo:  The tuition hike for out-of-state students has gone into effect.  An out-of-state student proposes to file a class action seeking a refund in the form of reduced tuition for the following year.  Will the court certify the class?

Tips on Joinder of Claims (including Cross Claims and Counterclaims), Third Party Defendants, and Rule 19

1.  Think about the permissive standard for adding claims under Rule 18.  What is the standard governing counterclaims (D lobs a claim over at the P) and cross claims (parties on the same side of the "v" sue each other).

2.  What is the legal theory animating the addition of third party defendants (or fourth party defendants, etc.) under Rule 14?  Sketch out the players in the chicken coop lawsuit (Price v. CTB).  I find it really helpful to sketch out the parties and the claims flying over the "v" when discussing Joinder.  Why did Latco want to bring ITW into the lawsuit?  What substantive theory of liability would enable Latco to do so?  Is Latco limited to suing ITW for implied contractual indemnity?  What happens to Latco's defective design claim?  Once ITW enters the litigation as a third party defendant, may the plaintiff sue ITW?  Check Rule 14.  Does it matter when a defendant seeks to add a third party defendant?

3.  What is the thrust of the compulsory joinder rule (Rule 19)?  What does it aim to prevent?  What other rule does the indispensable party intersect with?  In Temple v. Synthes, what was the Fifth Circuit's ruling and rationale as to the party that would suffer prejudice if the doctor and the hospital were not joined?  Describe the Supreme Court's ruling and rationale.  Why might the plaintiff want to sue the plate manufacturer, the doctor, and the hospital together?  Can you guess why the plaintiff declined to do so?  Note how the Temple case addresses the question of whether the doctor and hospital were necessary parties. 

4.  In Helzberg v. Valley West Shopping Center, what does the defendant argue to get rid of the case?  What does the Court of Appeals say about possible prejudice to Lord's if the suit proceeds without it?  What about prejudice to Valley West if the case proceeds without Lord's?  What will Lord's likely do after the motion is finally decided in this case?  Were there other options besides dismissal the court could have pursued under the 19(b) analysis?  Given such possibility, did the court improperly apply 19(b)?  Do you agree with the result in this case.  Do not hesitate to bring your searching eye to this case!

Updated syllabus

I updated the posted syllabus to reflect a change in the reading for Monday.  Add pp. 766-772 (Helzberg).  Thanks!

Important Update on Class Action Readings and Tips

For Monday, please read Mayo (posted on Blackboard).  For Thursday, I need to add pp. 796-806.  (I just realized that the syllabus omitted that material.  I am so sorry).

A few tips:

1.  In Mosley, what did the defense argue in opposing joinder?  How did the court rule?  What did the court identify as the policy concerns underlying Rule 20?  Why did the plaintiffs want to join together as a strategy matter?

2.  What is the standard for joining claims vis-a-vis the joinder of parties?  What about counterclaims and cross-claims under Rule 13?

3.  What is the rationale supporting the recognition, and pursuit of, of class actions?  Be sure to understand the components of Rule 23(a): numerosity, commonality, typicality, and adequacy of representation.  And think about the different types of classes under Rule 23(b).

4.  In Mayo, what was the court's rulings as to typicality, commonality, numerosity, and adequacy of the representative and his/her counsel?  What kind of class was it?  Why did the court uphold the 23(b)(3) fraud class?  What individual issues might defendant have raised that would have overwhelmed the predominant issues?

Fantastic Reviews

Great job, Reviewers and class.  Thanks to all who worked so hard on preparing the Review questions and presentations.  I really appreciated the questions everyone asked and the time everyone spent preparing for the Review.  We will lead Monday's class with question 4 before heading into Joinder.

Many folks after class thought it might be helpful to have the Review groups prepare an answer or a Power Point conveying their findings.  That might alleviate the worry to write everything down.  I agree.  Going forward (for Reviews II and III), volunteer groups should draft an answer (my hope) or a bullet point guide/Power Point for the class.  I also will join the presenting group at the head of the class at the end of the presentation and underscore the key issues.