Jurisdiction over the Parties or Their Property (jop)
Securing and Enforcing Judgments
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Securing and Enforcing Judgments Rule 65 Injuctions and Restraining orders 65(a) Preliminary Injunction Issued by the court to protect P from irreparable injury and to preserve the court’s power to render a meaningful decision after a trial on the merits Granted before trial – often the same effect as relief for P Only on notice to D, in the most necessary of circumstances Test P must establish that he is likely to succeed on the merits P is likely to suffer irreparable harm Balance of equities tips in P’s favor Injunction is in the public interest 65(b) Temporary Restraining Order TRO issued ex parte, appropriate only when the threat of irreparable injury is immediate and the need to preserve the status quo is urgent Standard is higher Sought when an application for a restraining order is sought when time considerations do not permit the giving of formal notice Person might destroy, or change the circumstances because of notice FRCP 66 Recievership p.1169 Appellate Review Finality 28 U.S.C § 1291 – appeals courts have jurisdiction of appeals from all final decisions of the district courts Except direct review from SCOTUS 28U.S.C. § 1292 – Interlocutory appeals Appeals from injunctions Appeals of appointed recievers Appeals of admiralty cases (b) discretionary appeal, there must be a controlling question of law as to which there is a substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation Ten days after entry of the order This does not act as an automatic stay Liberty Mutual v. Wetzel – 54(b) – is for multiple claims. A claim is different from relief sought A motion for Partial Summary Judgment is by definition interlocutory 56(d)(2) – permits the court to gran SJ on the issue of liability alone, where a genuine issue concerning damages remains. This type of partial summary judgment is interlocutory in nature and not immediately appealable The granting of partial summary judgment is not appealable under 28 U.S.C. § 1291. § 1291 only allows appeals from "final judgments." A final judgment is just that-final. There is nothing more to do. Here, liability was established, but no relief was yet given. The court's action was thus an interlocutory order, which would have to be appealed under 28 U.S.C. § 1292, for which the procedural requisites were not met here. Atlantic City v. GE p.1216 - Pretrial appeals pose problems as to the feasibility of deciding certain questions of law in advance of trial. Such appeals are within the discretion of the appellate court and are not automatically granted. They are viewed against the backdrop of the entire case. In the present case, D request for pretrial discovery may extend the length of already extensive pretrial proceedings. In the event they lose, D will have an opportunity to correct the district court ruling on appeal. Meanwhile, it is not precluded from its "passing on" defense by denial of this pretrial appeal. Ascertaining the Applicable Law Nature of the Problem A particular controversy that is litigable in federal court may also in most situations be brought in state court. Which law – Fed or state – governs? Forum shopping – Fed courts want to discourage forum shopping. To prevent forum shopping the courts generally apply state law in diversity cases Rules of Decision Act (RDA) – 28 U.S.C. § 1652, based on the Supremacy Clause, is the main statute stating when the fed court should apply fed law, and when it should apply state law RDA says that the fed courts must apply the “law of the several states except where the const. or … acts of Congress otherwise require…,” Fed law – the Constitution, treaties, and constitutional statutes enacted by Congress always take precedence, where relevant, over all state provisions (this also applies to state court proceedings) State statutes – in the absence of a fed const. or statutory provision on point the fed courts must follow state const. and statutes Dispute about the common law – RDA is silent on what a fed court should do where there is no controlling const. or statutory provision, federal or state. Swift v. Tyson (1842) held that fed judges could ignore state common law in diversity cases (except where state court opinions on real estate or other local immobile matters) Courts used fed common law and state procedure This allowed non-citizens to discriminate against citizens of the state where the federal court sat. Black and White Taxicab – Holmes’s Dissent – the common law of a state is as much a creation of the state’s sovereign power as statutory law. Therefore Fed courts should be bound to follow state common law. To refuse to follow state law, insofar as this refusal permitted fed courts to exceed the powers granted to the fed gov’t, was an “unconstitutional assumption of powers by US courts. Erie v. Tompkins – MOST IMPORTANT. Facts: P, PA citizen was injured while walking on the right of way maintained by D, NY Railroad. Under PA common law, P would probably have lost his negligence case, because P was a trespasser, to whom D would be liable only for gross, not ordinary negligence. P instead sued in NY fed district Court, expecting the fed court to follow Swift and make its own fed common law which P hoped would make the railroad liable to him for ordinary negligence. Fed district court did this and found against the railroad. Holding: SCOTUS – (Brandeis) Swift overruled. Swift allowed Fed courts to make law in areas not granted by const. The fed court must follow state common law on substantive issues, and that “state law” included common law as well as state statutes. So PA law on the railroad’s duty of care was to be followed (although the court did not specify why PA rather than NY law to be followed) New evidence showed RDA was intended by its authors to cover state common law Discrimination: Swift introduced grave discrimination by non-citizens against citizens (privileges and immunities clause), promoted forum shopping (rendered impossible the equal protection of the law) Congress has no power to declare substantive rules of common law applicable in a state. There is no general fed common law Concurrance: Swift view erroneous, but not necessarily unconstitutional Erie Problems Ascertaining state law: fed court must try to determine how the state’s highest court would determine the issue if the case arose before it today Intermediate court decisions: if there is no holding by the highest state court the fed court considers intermediate court decisions. These will normally be followed, unless there are other reasons to believe that the state’s highest court would not allow them No state court has spoken: fed court can then look to other sources. Decisions in prior fed diversity cases which have attempted to predict and apply the law of the same state Look to the practice of other states State decision obsolete: where there is an old determination of state law by the highest state court, the fed court hearing the present case is always free to conclude that the state court would decide the issue differently if confronted w/ the present case Bernhardt v. Polygraphic Change to conform w/ new state decision: fed court must give effect to a new decision of the state’s highest court, even if the state court decision was handed down after the fed district court action was completed Conflict of laws: fed court must follow state law governing conflict of laws where the federal court sits (Klaxon Co. v. Stentor) Allstate v. Hague – a state can apply substantive law so long as the state had significant contacts or a significant aggregation of contacts w/ the parties and the transaction Burden of Proof: fed court must also follow rules governing the allocation of burden of proof in force in the state the fed court is sitting Palmer v. Hoffman Procedure/substance distinction: Erie says that state common law controls in “substantive matters.” Fed rules and policies control on matter that are essentially “procedural” Fed Rules take precedence: Erie only applicable where there is no controlling fed statute. FRCP were adopted pursuant to congressional statute and thus take precedence over state policy Does rule apply: the rules are construed narrowly, to cover just those situations that Congress intended them to cover. if the rule applies, then Is Rule valid: a Rule must not “abridge, enlarge, or modify the substantive rights of any litigant.” As long as the rule is arguably “procedural,” it will be found to satisfy this test. No Fed Rule has ever been found to violate this test Hanna Sibbach v. Wilson – P refused to undergo physical exam. As long as a rule is procedural it cannot affect substantive rights and could not violate the REA Guaranty Trust state statute of limitations Erie requires fed courts to obey state statute of limitations Outcome/Determinative Test: Does it significantly affect the result of a litigation for a federal court to disregard a law of a State that would be controlling in an action upon the same claim by the same parties in a State court? If yes, then substantive Erie applies to equitable rights – In a diversity suit brought in equity, an equitable right created by a law of the state whose laws govern the case must be followed by a federal district court if applying the federal law would significantly affect the outcome of the case. Gasperini – In a federal district court sitting under diversity jurisdiction, the standard the judge uses to determine whether a jury’s itemized verdict is excessive is that of state law, and is only subject to appellate review for “abuse of discretion.” If the state law and the fed rule are the harmonious, follow the state rule Hanna v. Plumer – P serves suit on D’s wife according to FRCP 4(e)(1) Removes FRCP entirely from the scope of Erie The outcome/determination test…cannot be read w/out reference to the twin aims of the Erie rule: discouragement of forum-shopping and avoidance of inequitable administration of the laws Only authorizes fed courts to disregard state procedural law and follow FRCP if there is a conflict between the two If the rule at issue is procedural and the federal rule is on point with the state rule, then the Federal Rule must be applied as long as it complies with the Rules Enabling Act, 28 U.S.C. Section: 2071 and the U.S. Constitution. If there is no federal rule on point, then apply the Erie doctrine Two step test Is the scope of the Fed rule sufficiently broad to cause a direct collision w/ state law Rule must be applied if it represents a valid exercise of Congress’ rulemaking authority Case not covered by Fed Rule: if the issue is not covered by anything in the FRCP, but is nonetheless arguably “procedural” Byrd v. Blue Ridge – right to a jury trial If federal policy is very strong, and the state policy is relatively weak, fed policy might outweigh state substantive policy. Also, if the probability of the outcome/determination is weak fed policy might outweigh If a requirement appears to be merely a form and mode of enforcing the immunity and not a rule intended to be bound up with the definition of the rights and obligations of the parties State laws cannot alter the essential characteristic of USA soveriegnty Balance state and fed policies: Today, fed court balances the state and fed policies. Where the state interest in having its policy followed is fairly weak, and the fed interest strong, the court is likely to hold that the fed procedural policy should be followed Byrd Judge/Jury allocation – fed policies are followed Byrd Unanimity for jury trials – fed policy requiring a unanimous jury verdict will be applied in diversity suits Statute of limitations Walker v. Armco - In diversity actions, Rule 3 governs the date from which various timing requirements of the federal rules begin to run but does not affect state statutes of limitations. Since there is no direct conflict between the Fed Rule and the state law, the Hanna analysis does not apply Rule 3 – a civil action is commenced by filing a complaint with the court. Otherwise it would promote forum-shopping Fed statute on point: Where there is a federal procedural statute (distinct from federal rule) that is directly on point, it will control over any state law or policy, even though this may promote forum shopping Stewart - By focusing on Alabama law, the District Court contravened Congressional intent by considering factors that defeat the purpose of § 1404(a). Because the two statutes conflict with each other, the federal statute controls In a diversity suit, federal rules, not state rules, should govern questions of venue. Dissent – runs afoul of twin aims of Erie Discouragement of forum shopping Avoidance of inequitable administration of the laws Shady Grove – Plurality decision We do not wade into Erie’s murky waters unless the fed rule is inapplicable or invalid Majority: Federal Rule Trumps When: Conflict with State Law and the Federal Rule is Applicable Determine whether fed and state rule can be reconciled If not, determine whether the fed rule runs afoul of REA Fed. Rule is a rule of procedure Constitutional It is not the substantive or procedural nature or purpose of the affected state law that matters, but the substantive or procedural nature of the fed rule This takes us back to basics - Hanna Dissent: Federal Rule should yield when: Situation in which you know that the Federal Rule is going to work at cross-purposes with substantive state policy - State policy is executed Prevents forum shopping Prevents inequitable administration of the laws Federal Common Law Federal common still exists: still particular instances where fed common law is still applied. Fed courts occasionally free to disregard state law Fed Q cases – fed common law usually applies Diversity cases – Occasionally fed common law may still be applied Fed common law in state courts – sometimes the states are required to apply fed common law. If concurrent jurisdiction (state and federal) exists concerning a particular claim, and the suit is brought in state court, fed common law applies there if it would apply in fed court Preclusion – Res Judicata Claim preclusion – if a judgment is rendered for P, his claim is merged into the judgment – the claim is extinguished and a new claim to enforce the judgment is created A valid and final judgment on the merits precludes further litigation by the parties or those in privity with the party of the same claim and all other claims defenses and issues that could have been asserted as a cause of action – Wardle If judgment is for D on the merits, the claim is extinguished and nothing new is created; P is barred from raising the claim again Mathews v. NY Racing - The doctrine of Res Judicata operates as a bar to subsequent suits involving the same parties, or those in privity with them, based on a claim which has once reached a judgment on the merits. A judgment against or in favor of an agent or employee may bind his principal or employer under the doctrine of respondeat superior; If judgment determines that the servant or agent was not culpable, his master or principal cannot be liable. This is true whether the actions are separate or whether the employer and employee are joined. Substantial identity of the parties is all that is required If the factual basis is the same the claim is the same No claim splitting: judgment is conclusive with respect to the entire claim that it adjudicates. If P sues upon any portion of the claim, the other aspects of that claim are merged in her judgment if she wins, barred if she loses – “one suit per claim” (Merger) Installment contracts – if the claim relates to payments due under a lease or installment contract, P must sue at the same time for all payments due at the time suit is filed Jones v. Morris Plan Bank – car payments, monthly installments, remainder due upon missed payment (unconditional clause) If a transaction is represented by a single and indivisible contract and the breach gives rise to a single cause of action, it cannot be split into distinct parts and separate actions. Here, it was essential that the Bank institute an action for all of the installments due rather than institute its action for only two of the installments and later bring another action for others. The note and contract constituted one single contract. If it is an optional clause – bank may call for payment immediately, but has the option to work something out (usual clause) Personal and property damage from accident – most states hold that claims for personal injuries and property damages stemming from the same incident are part of the same cause of action Rush v. City of Maple Heights - When injuries to both person and property resulting from the same wrongful act, a plaintiff may maintain only one lawsuit to enforce his rights existing at the time such action is commenced. Multi-theory actions – no claim splitting even when P has several claims, all arising from the same set of facts, but involve different theories or remedies. Merger of P’s rights with respect to all or any part of the same transaction or series of transactions Equitable/legal distinction – same claim if relate to same facts It is difficult to define the scope of a prior judgment in controversies involving continuing or renewed conduct – evaluate whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, whether their treatment as a unit conforms to the parties expectations or business understanding or usage Exceptions – if the court trying the first action would not have SMJ for a claim now asserted in the second action Des Moines v. Iowa Homestead A party who fails to challenge federal court SMJ of an action, either in the trial court or on appeal, is bound by the res judicata effect of the first action in subsequent suits based upon it. Cannot be raised in a collateral attack Once it becomes a final judgment, it may not be raised State law followed in diversity action Adjudication on the merits – Not every loss by P in the first action will act as a bar to subsequent suits on the same claim. P barred only if the original adjudication in favor of the defendant was on the merits Non-prejudicial grounds – if brought in fed courts not barred if 41(b) Lack of jurisdiction Improper venue Failure to join indispensable party What does “a final adjudication on the merits” mean? Directed verdict, summary judgment, trial verdict What about a dismissal based on a 12(b)(6) motion grant (failure to state a claim for relief). In most cases this is granted with a leave to replead. At some point the judge grants the 12(b)(6). A dismissal followed by a 12(b)(6) grant does lead to claim preclusion Counterclaims – a D who pleads a counter claim is a P with respect to that claim - No splitting Mitchell – A defendant may not split his cause of action against a plaintiff using part of it as a defense to the first action and saving the remainder for a separate affirmative suit. P is not allowed to use the same defense first as a shield and then a sword May precluded later if it is a permissive rather than a compulsory counter claim Change of law doesn’t prevent preclusion Collateral Estoppel/Issue Preclusion Identifies issues that were litigated in the first action and says you cannot re-litigate them in the second action. A valid and final judgment on the merits precludes re-litigation of the same issue that was actually litigated, determined by the court, and essential to the judgment - Wardle Cromwell v. County of Sac where res judicata (merger, bar) is precluded because a case involves a new claim (cause of action), the first judgment will still operate as an estoppel to all matters actually litigated in the prior action and essential to its determination. Corollary Only preclusion as to issues that were actually decided If an issue was not essential to the determination it is not precluded When a case is decided on more than one ground, all grounds are precluded Causes of Action are Different. You don’t get to collateral estoppel if Res Judicata applies. You’re looking at whether an issue in the context of the first action should or should not be re-litigated in a different context, in the context of a different cause of action. Because you’re a little bit worried that there has been a contextual shift. Issue v. Claim – claim preclusion applies only where the cause of action or claim in the second action is the same as the first action, collateral estoppel applies as long as any issue is the same, even though the causes of action are different Suit not prevented – CP prevents a 2nd suit altogether, CE does not prevent a suit, but merely compels a court to make the same findings of fact on the same issue If the prior decision is ambiguous on what it actually decided, doubts should be resolved against the party seeking preclusion Prerequisites Issue in action 1 must be the same issue in action2 Issue must be essential for judgment Look out for variations in standard Shifts in the burden of persuasion Russell v. Place - The question estopped must have been actually litigated and essential to the judgment (i.e., part of the holding or rationale supporting it), This must be provable from the record or extrinsic evidence for the principle of collateral estoppel to apply. An "essential" question is one the determination of which played a necessary role in the outcome (holding, judgment) of the case. The burden of proof is on the party seeking estoppel to prove that a question qualifies both as "actually litigated" and as an "essential question." Rios v. Davis - It is the judgment and not the conclusions of fact filed by a trial court that constitutes estoppel. A finding of fact by a jury or court, which does not become the basis or one of the grounds of the final judgment, is not conclusive against either party to the suit. IRS v. Sunnen - Where two cases involve income taxes in different taxable years, collateral estoppel must be confined to situations where the matter raised in the second suit is identical in all respects with that decided in the first proceeding and where the controlling facts and applicable legal rules remain unchanged Persons Bound Who Weren’t Part of the First Suit Generally only actual parties to the 1st action can be bound by the finding on the issue A non-party who has not had their day in court is not bound by the first action. That’s due process. Exceptions Privity between the non-party and a party to the first action Non-party agrees to be bound Non-party assumed control over the law suit Non-party engaged in some sort of a collusive act with one of the parties Statutory scheme 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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