Jurisdiction over the Parties or Their Property (jop)
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- § 2361 Venue – suit may be brought “in the jurisdictional district in which one or more of the claimants reside” § 1397
- Pan American v. Revere Rule 22 and § 1335 via § 2361
- Intervention FRCP 24
- FRCP 23
- Cummings
- 26(a)(1) or 26(a)(3)
- PRIVILEGED 26(b)(1)
- WORK PRODUCT IMMUNITY 26(b)(3) If it is qualified work product immunity 26(b)(3)(A)
- 26(b)(3)(A)(ii) Hickman v. Taylor
- Absolute work product immunity
- Depositions Rules 28-32 Rule 28
- 45(c)(3)(A)(ii) No subpoena for party Rule 37 Request to produce documents If a party rule 37
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main benefits relate to jurisdiction and service Amount in controversy $500 Minimal diversity required – only 2 claimants must be diverse Nation-wide personal jurisdiction - nationwide service § 2361 Venue – suit may be brought “in the jurisdictional district in which one or more of the claimants reside” § 1397 Commenced by stakeholder, and the stakeholder must deposit into court the amount of property in Q, or post a bond for that amount Stakeholder is not estopped from claiming that he doesn’t owe anything at all at trial Once begun the court may restrain all claimants from starting or continuing any other action which would affect the property Pan American v. Revere Rule 22 and § 1335 via § 2361 can enjoin actions and it is enough that insurance company has the potential of double liability. Venue-If D do not all live in the same state, the state of stakeholder will work. State Farm v. Tashire - Greyhound bus crash in CA. P sought to interplead all of the other parties. Only can bar suits against the stake holder and not other suits arising out of the incident. Rule Interpleader FRCP 22 Requires complete diversity of citizenship Operating under the forum state’s long-arm statute. Do the analysis. More than $75,000 involved Normal venue No court deposit by stakeholder 22(1) – stakeholder may “aver that the P is not liable in whole or in part to any or all the claimants” – stakeholder may deny liability
Intervention FRCP 24 Intervention as of Right Statute Interest in property and the disposition of the action may impair of impede the interveners protection of his property Permissive Discretionary Intervention Must raise an issue by claim or defense that is common to the rest of the case Identifying Parties Who may Sue and Be Sued Rule 17 - General rule is that the suit must be brought in the name of the real party in interest but the rule also creates exceptions to the general rule. 17(a)(1)(A)-(G) and 17c An executor An administrator A guardian A bailee A trustee of an express trust A party whom on in whose name a contract has been made for another’s benefit; and A party authorized by statute 17(c) – Minor or incompetent person Ellis Canning v. International Harvester - P had already collected money from insurance company for damages but brought suit in own name for the benefit of insurance company Every action must be prosecuted in the name of the real party in interest which was the insurance company in this case Class Actions Benefits p.744 Mass tort class actions are critical for securing judicial access Promotes efficiency Creates incentives that deter institutional wrongdoing Criticisms p.744 Generating unwarranted legal fees Inflated product prices Contributes to corporate bankruptcies Raises due process concerns because of the lack of P autonomy Started the same way as a regular claim p.748 FRCP 23(c) The difference is that a class action lawsuit is filed in a representative capacity on behalf of persons who are similarly situated to the named P A procedure whereby a single person or small group of co-parties may represent a larger group, or “class” of persons sharing a common interest Jurisdiction – Only the representatives must satisfy the requirements of JOP, SMJ, and venue. Binding on absentees – the results of a class action are generally binding on the absent members. Procedural rules exist to make sure absentees receive due process. Defendant class – Class may be composed of Plaintiffs or Defendants (usually the class is composed of Plaintiffs) FRCP 23 – Class Actions 4 prerequisites FRCP 23(a) Numerosity - Size – class must be so large that joinder of all members is impractical (there have been as few as 10 certified and as few as 30 not certified) The geographically dispersed the claimants are, the fewer are needed to satisfy the requirement Alternatives – Joinder or multiple suits Commonality – questions – there must be common questions of law or fact common to the class (not usually a problem) common to other methods to consolidate 24(b) 42(a) Typicality – Typical claims – the claims or defenses of the representatives must be typical of those of the class (not usually a problem) Adaquacy – Fair representation – reps must show that they can fairly and adequately protect the interests of the class No conflict of interest Competent legal counsel Three categories 23(b) 23(b)(1) – Prejudice Class Actions Test – if individual actions by or against members of the class would create a risk of Inconsistent decisions forcing an opponent of the class to observe incompatible standards of conduct The impairment of the interests of the members of the class who are not actually parties to the individual actions No opting out – Members of class may not opt out of the class, any absentee is bound by the decision of the suit Mass tort claims – so many claims that D may be insolvent before later claimants can collect 23(b)(2) – Injunctive Class Actions – if the suit is for an injunction or declaration that would affect all class members – Most common Civil rights case – this category usually used for discrimination cases No opt out (23(c)(3)) 23(b)(3) – Damage Class Actions 2 requirements Common questions – questions of law or fact common to class members predominate over any questions affecting only individual members Superior method – Class action must be superior to other methods The interest of members in individually controlling their separate actions Presence of suits already commenced among members Desirability of concentrating litigation of the claims in a particular forum Manageability – any difficulties likely to be encountered in the management of a class action Notice – absent class members must almost always be given notice of the suit FRCP explicitly require this only for b(3) actions, but courts can require it of b(1) and b(2) actions as well Individual notice – usually by mail given to those members whose names and addresses can be obtained with reasonable effort. Publication notice – if names and addresses cannot be obtained Contents – tell claimant that he may opt out of the class if he wishes (b(3) only) and that judgment will affect him unless he opts out Cost – The cost of identifying and notifying class must normally be borne out by representative Plaintiffs. Binding on all members (whether for or against) except in b(3) if they opt out SMJ issues Federal question issues are rare Diversity cases – usually issues with amount in controversy Diversity – rarely a problem – only the citizenship of the class representatives matters Amount in Controversy If at least one named member qualifies other members may join even if their amount is less than required Named members can’t aggregate – at least one named member must independently meet the jurisdictional amount - $75,000 Exception – class action may go forward if There is minimal diversity There is at least $5million in controversy in the aggregate even if no single member’s claim is more than $75,000 Certification If court refuses to certify Continued by representative but with no res judicata effect on other members, usually will not proceed Sub-class – res judicata affects sub-members No appeal of a certification Settlements – any proposed settlement must be approved by the court FRCP 23(e) Notice of proposed settlement must be given to each member Attorney’s fees – court may award attorney’s fees Generally in proportion to the size of recovery Federal – attorney’s fees only if federal statute provides (civil rights, securities law) Phillips Petroleum Co. v. Shutts p.786 In order to bind absent class members to a class action involving monetary judgment, due process requires that all absent class members receive notice describing the litigation, their right to appear, and their right to opt out of the litigation. A state’s law can only be applied if the state has contact or an aggregation of contacts that create state interests in the litigation so that the choice of law is neither arbitrary nor unfair. Chosen Action an intangible claim for relief An “opt in” provision would impede the class action and would require revisions of many lawsuits. All State test – A State must have a significant contact or aggregation of contacts to the claims asserted by each member of the P class, contacts creating state interests in order to ensure that the choice of State law is not arbitrary or unfair. If there is a conflict of law, you must decide which law will apply. Depositions and Discovery Rules 26-37 General Scope – Rule 26(b), which applies to all forms of discovery, provides that the parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense. 26(f) – Parties must confer as soon as practicable and at least 21 days before a scheduling conference under 16(b) Court generally doesn’t get involved unless there is abuse, or noncompliance Disclosure Automatic and Mandatory Only have to mandatorily disclose things you plan to use at trial (Cummings p.849) Pre-discovery – 26(a)(1), a party must, even without a request from the other side, automatically disclose certain things early in litigation. The most important: All witnesses with discoverable information: name, address, phone number of each witness that a party plans to use in its case Upon request all witnesses (occurrence witnesses) are discoverable Documents – a party must furnish a copy, or a description by category and location, of all documents and tangible things in that party’s possession that the party intends to use Damages – basis for damages must be disclosed Insurance – must disclose liable insurance policies (limited by rule 34) Other: later in litigation each party must automatically disclose to the other the details of expert testimony and witnesses and exhibits to be used at trial If something does not fall under 26(a)(1) or 26(a)(3) then ask the following questions Is the material RELEVANT? If no, then discovery not allowed Will the material be ADMISSIBLE? If not, discovery not allowed unless the information appears reasonably calculated to lead to the discovery of admissible evidence. Relates to the identity and whereabouts of any witness who is thought to have discoverable information Relevant but inadmissible: Leads: material which will serve as a lead to admissible evidence Legal theories: 33(a)(2) material relating to legal theories on which the responding party expects to rely on trial Witnesses: 26(b)(1) the identity and whereabouts of any witness (also not privileged, and outside work product immunity rule) Is the information PRIVILEGED? 26(b)(1) If it is, then not discoverable unless privilege is waived Only the person who could assert the privilege at trial may resist discovery on the grounds of privilege In diversity cases, state law of privilege applies Fed Rule of Evidence 501 Attorney Client Privilege p.908 The asserted holder of privilege is or sought to be a client The person to whom the communication is made Is a member of the bar, or his subordinate Is acting as a lawyer Communication relates to a fact of which the attorney was informed By his client w/out presence of strangers for the purpose of securing an opinion on law legal services assistance in some legal proceeding not for the purpose of committing a crime or tort the privilege has been claimed not waived by the client Is the information outside of the WORK PRODUCT IMMUNITY? 26(b)(3) If it is qualified work product immunity 26(b)(3)(A), discovery allowed only if there is a showing of substantial need of the material, and an inability to acquire it by other means w/out undue hardship Qualified immunity – documents prepared “in anticipation of litigation” (notes taken on what a prospective witness said, etc.) by any representative of a party Overcome by hardship – qualified rather than absolute Discovering party has substantial need and the equivalent is not available by other means Test: Cannot without undue hardship obtain the substantial equivalent by other means 26(b)(3)(A)(ii) Hickman v. Taylor – Absent a showing of necessity or justification, attorney work product is undiscoverable If the discovering party can obtain the desired qualifiedly privileged information elsewhere, he has not met the burden showing the kind of special circumstances necessary to overcome qualified immunity Special circumstances – witness dead Absolute work product immunity, no discovery 26(b)(3)(B) 4 factors p.908 Holder of the privilege is or sought to be a client Person to whom the communication was made Is a member of the bar or court, or his subordinate In connection w/ this communication is acting as a lawyer The communication relates toa fact of which the attorney was informed By his client Without the presence of strangers For the purpose of securing primarily either An opinion on law or Legal services or Assistance in some legal proceeding Not for the purpose of committing a crime or tort The privilege has been Claimed and Not waived by the client Mental impressions, conclusions, opinions, or legal theories of a party’s attorney or other representative May not be absolute, at the very least need a far stronger showing of necessity and unavailability by other means Upjohn Co. v. U.S. p.915 Communication must be one that would not have been made but for contemplation of legal services Must relate to legal services being rendered Information giver must be an employee, agent, or independent contractor with a significant relationship to corp. Must be made in confidence May be asserted by the corp. or the info-giver Attorney-client privilege extends to lower level employees, not just to those in control of the corporation. The work-product doctrine protects oral statements made to attorneys, which necessitates a showing of undue hardship on the part of the party-opponent who seeks that information. Facts are still available, just can’t get it from attorney work product. Do your own work Is the material composed of facts and/or opinions held by experts? If yes, may or may not be allowed depending on factors concerning discovery concerning experts Is the material sought for discovering whether the other party has evidence designed to impeach the discovering party’s credibility? Yes, may or may not be discoverable (impeachment materials) Expert Discovery 26(b)(4) Where one side expects to call an expert at trial, the other side gets extensive discovery Identity (automatic) – each expert Report – expert must prepare and sign a report Opinions and basis for them Data considered Exhibits to be used Qualifications Compensation Names of other cases in which he testified in the last 4 yrs Deposition – expert must be available to be deposed after furnishing report. Party taking the deposition must pay fee Employee experts must furnish report, if his regular duties involve giving expert testimony Krisa p.917 – Preliminary reports and opinions made by expert witnesses who are expected to testify at trial are not protected under the work product doctrine and are therefore discoverable. Communications made by litigant’s counsel to their expert witnesses with regard to matters that are protected by the work product doctrine are not discoverable Retained but not to be called to testify at trial – discoverable only upon showing of exceptional circumstances making it impractical for the party seeking discovery to obtain the information by other means Physicians report discoverable 35(b) Exceptional circumstance – if there is only one expert available in a field Unretained, not to be called – no discovery Participant experts – one who actually took part in the transactions or occurrences that are part of the subject matter lawsuit – treated like an ordinary witness Expert is a party – normal witness Insurance – insurance agreements under which an insurer may be liable to satisfy judgment is discoverable 26(b)(5) – If a party is declining to furnish documents or info because of a claim of privilege or work immunity, the party must make the claim expressly, and must describe the nature of the documents or info Duty to supplement – 26(e)(1); 26(e)(2) Mandatory – must supplement, in a timely manner Expert – both in the report and to information given during deposition Depositions Rules 28-32 Rule 28 – Persons before whom depositions must be taken Each deposition one day of 7 hours Characteristics Extrajudicial – except for requests for physical examination Scope – must be relevant and unprivileged Signature required by the lawyer preparing 26(g) Only parties – except for depositions – may only be addressed to the parties Oral – after beginning an action any party may take the oral testimony of any person thought to have relevant information Non-parties may be deposed Subpoena – non-party must be subpoenaed. Must be within 100 miles from place where deponent resides, employed, or regularly transaction business in person 45(c)(3)(A)(ii) No subpoena for party Rule 37 Request to produce documents If a party rule 37 request to produce Non-party – subpoena duces tecum (for documents) Limited to ten depositions unless adversary agrees to more or there is a court order 30(a)(2)(A)(i) Written questions – any party may take the oral responses to written questions, from any person (party or non) thought to have discoverable information (mainly used for distant non-parties) (Rule 31) Directory: sites -> www.phideltaphi.org -> resource -> collection -> EA88E61A-F827-4590-985B-EC1F412EAE4E sites -> Glossary for Chapter 1 Algorithm sites -> North Carolina Inclusion Initiative Mapping Where Children with ieps are Being Served Purpose sites -> Northern England’s set-jetting locations sites -> Physical custody of 1033 program property accountibility form statement of Physical Custody: By signing for the below 1033 property I am a Law Enforcement Officer of the aforementioned Law Enforcement Agency sites -> Nstructions for Acquiring Excess Equipment online, through the 1033 Program sites -> Memorandum of agreement EA88E61A-F827-4590-985B-EC1F412EAE4E -> Five Juicy questions where the heck does property go upon death of decedent? 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