CIV PRO NOTES - MARCH
March 8, 1999
Review of State Farm Fire and Casualty Co. v. Tashire
Use of § 1335 and FRCP 22
Interpleader is usually brought as an independent suit - not as part of an already existent suit
§1335 requires: Diversity between any 2 adverse parties AND minimum $500 amount in controversy (1332 $75,000 does not apply in a 1335 litigation)
subject matter jurisdiction
venue
personal jurisdiction
--------------------------------------------
March 10, 1999
Intervenor (rule 24) - when someone who thinks he ought to be a party in the lawsuit, he can intervene. A person on the outside who wants to be a part of the lawsuit.
Impleader (rule 14a (implead on a claim you MAY have); 13a; 13h (counterclaim by defendant against another plaintiff); 22 (require that other persons interplead their claims) ) - a case in which a person who is involved in the litigation seeks to bring in another party. Party to the suit believes there is a third party who should compensate or indemnify him in case of liability.
Interpleader -
P v. D
Lessee v. sublessee
Difference between rule 19 and 22:
-------------------------------------------------
March 12, 1999
Class actions!
Way to prepare: construct your own questions: move from simple to complex; rules are simple mechanics; not some big mystery
Start:
One plaintiff sues two defendants: what rule would allow this? Rule 20a
Two p against 1 D
One P against 1 d with two or more claims
Likely in essay we will have question "can it be done under federal rules." Assuming affirmative answer, then "will the court have jurisdiction?" (we will have to deal with subject matter jurisdiction at that point) - 1330, 1331, 1332, 1335, 1367
Class actions are like another way of joinder of parties
Should there be a requirement that persons members of a defined class receive some kind of notice that this action has been filed? Yes.. for purposes of what? What purpose will it serve to give them notice that this action has been started? It will give the person being represented notice of what is going on.
It appears that the rules allow for a person receiving notice allow for a person to assign their own counsel.
It seeks to represent a class to which the Californians is a party, does the Californian have no choice but to go along with what is going on in NY? They can opt out.
Would it be better to have people opt in? instead of only opt out… it is much more efficient to have people opt out than in.
Treble = triple
------------------------------------------------------
March 15, 1999
Numerosity
commonality
typicality
adequate representation
Class actions very LIKELY to be on essay portion of our exam! Be consistent in what you say.
-----------------------------------------------------------
March 17, 1999
Class actions again!
Can we justify adjudication on a class basis on interest of having no connection with forum or would that violate due process?
-------------------------------------
March 19, 1999
More class actions
Certification of a class for settlement only
--------------------------
March 24, 1999
Phillips Petroleum Co. v. Shutts
FACTS: a number of people who have earned money through these arrangements. Some of the money been withheld. Looks like the company has not calculated interest on the money that was owed. Suing for interest on the money that was owed to each person. Originally filed action in state court.
ISSUE: Phillips claims that Kansas does not have jurisdiction over it. There are not enough minimum contacts.
HOLD: Jurisdiction by necessity. Kansas is okay for hearing the suit.
ISSUE: choice of law question - is Kansas' law okay for this suit?
HOLD:
2. The Kansas trial court properly asserted personal jurisdiction over the absent plaintiff class members and their claims against petitioner. The Due Process Clause requires notice, an opportunity to appear in person or by counsel, an opportunity to "opt out," and adequate representation. It does not require that absent class members affirmatively "opt in" to the class, rather than be deemed members of the class if they did not "opt out." The procedure followed by Kansas, where a fully descriptive notice is sent by first-class mail to each class member, with an explanation of the right to "opt out," satisfies due process. The interests of the absent plaintiff class members are sufficiently protected by the forum State when those plaintiffs are provided with a request for exclusion that can be returned within a reasonable time to the trial court. Pp. 806-814.
3. The Kansas Supreme Court erred in deciding that the application of Kansas law to all claims would be constitutional. Kansas must have a "significant contact or aggregation of contacts" to the claims asserted by each plaintiff class member in order to ensure that the choice of Kansas law was not arbitrary or unfair. Given Kansas' lack of "interest" in claims unrelated to that State, and the substantive conflict between Kansas law and the law of other States, such as Texas, where some of the leased land in question is located, application of Kansas law to every claim in this case was sufficiently arbitrary and unfair as to exceed constitutional limits. Pp. 814-823.
------------------------------------------------------
March 26, 1999
Discovery
More appropriate term is "uncover"
When beginning process of discovery process, it will be helpful to consult with more experienced counsel for help
Depositions
Need to go over process of discovery before deposition - this will prepare client
Not everything is discoverable: just stuff which is relevant and is NOT privileged
Relevance: any thing reasonably calculated to lead to admissible evidence
Privileges:
Hague convention on taking evidence abroad - supposed to provide a uniform means to take evidence abroad
--------------------------------------------------------------
March 29, 1999
Discovery - Rule 26
Kerr v US District Court
--------------------------------------------------
March 31, 1999
Work product of the lawyer - Hickman v. Taylor - says that work product of attorney cannot be discoverable
Why have a work product rule, when it is clear that everything is available anyway. This will just increase lawsuits over work product.
Work product immunity seems like elitism
Always are exceptions to the work product rule - yes - a showing of substantial need FRCP 26(3)
Undue hardship can include financial hardship - such as if one party undertook tons of costly discovery and then the other side says it would be a hardship on them to get the same stuff. They can use undue hardship to get the materials (without paying for it most likely - up to the court).