Civ Pro II - post midterm

Question 0

Rule 19(a)

Answer 0

Required joinder of parties (necessary parties)
Situations in which to add the absentee (IF FEASIBLE) - A person who is subject to service of process and whose joinder would not deprive the ct. of SMJ is required to be joined if:
1. If, in the person’s absence, the court cannot accord complete relief among existing parties;
2. Absentee has interest in the subject matter of the action and her ability to protect against that interest will be impaired if she does not participate in the litigation.
3. Absentee has interest in the subject matter of the action and adjudicating the case without her might leave one of the existing parties exposed to multiple or inconsistent obligations.

Question 1

Rule 12(b)(7)

Answer 1

Failure to join a party under Rule 19

Question 2

Rule 19(b)

Answer 2

If a person required to be joined if feasible cannot be joined, the court must determine whether, in equity and good conscience, the action should proceed among the existing parties or should be dismissed. 4 factors for the court to consider:

1. The extent to which a judgment rendered in the person’s absence might prejudice that person or the existing parties;
2. The extent to which any prejudice could be lessened or avoided by: a. protective provisions in the judgment; b. shaping the relief; c. other measures.
3. whether a judgment rendered in the person’s absence would be adequate;
4. whether the plaintiff would have an adequate remedy if the action were dismissed for nonjoinder.

Question 3

Rule 19(c) and (d)

Answer 3

Rule 19(c) - When asserting a claim for relief, a party must state: the name, if known, of any person who is required to be joined if feasible but is not joined; and, the reasons for not joining that person.

Rule 19(d) - Exception for class actions - this rule is subject to Rule 23.

Question 4

Rule 22

Answer 4

Interpleader

By a plaintiff - Persons w/ claims that may expose a Plaintiff to double or multiple liability may be joined as defendants and required to interplead. Joinder for interpleader is proper though:

1. the claims of the several claimants, or the titles on which their claims depend, lack a common origin or are adverse and independent rather than identical; or
2. the plaintiff denies liability in whole or part to any or all of the claimants.

By a Defendant - A defendant exposed to same or similar liability may seek interpleader through a crossclaim or counterclaim.

For Rule interpleader, Rule 22, case must arise out of Federal Law (rare) or occur in diversity.

Question 5

Types of Interpleader and interpleader generally

Answer 5

Types of Interpleader - Statutory and Rule (Rule 22)

Interpleader - deals with situations where several people have filed inconsistent claims to the same “thing”. By litigating claims separately, the stakeholder could end up with double liability and a claimant could up being barred from their claim by another claimant’s judgment.

It is not enough to show that the stakeholder is subject to multiple claims; instead, he must show that those multiple claims lead to legally unacceptable results. (Indy Colts NFL case)

Interpleader is to be granted in instances where a stakeholder faces a legitimate fear of multiple claims, irrespective of the merits of the competing claims. (Bank account case)

**Look for a specific amount or thing that it is limited. If someone’s liability is unlimited, no need for interpleader.

Need not wait until all potential claimants have actually filed; can use as long as there is reasonable apprehension of multiple suits.

Question 6

Rule Interpleader vs Statutory Interpleader

Answer 6

Diversity: Rule Interpleader requires complete diversity between stakeholder and all claimants. Statutory interpleader requires minimal diversity; satisfied if one claimant is diverse from any other claimant.

Amount in Controversy (Value of stake): Rule Interpleader: $75k; Stat. Interpleader: $500

Personal Jurisdiction: Rule Interpleader: all claimants must have minimum contacts with the state and state must allow service; Statutory Interpleader: nationwide service, not bound by state limits.

Venue based on residence: Rule Interpleader: where all residents reside; Statutory Interpleader: where any claimant resides.

Question 7

Prerequisites for Class Actions Rule 23(a)

Answer 7

23(a)(1)-(4)

1. Numerosity - the class is so numerous that joinder of all members is impracticable (factual question)
2. Commonality - asks whether the claims sought to be joined in the class share common issues of law or fact.
3. Typicality - the claims or defenses of the class representatives are typical of the claims or defenses of the class.
4. Adequacy - The representative parties will fairly and adequately protect the interests of the class. (look for incompetency, criminal background, history of litigiousness, etc.) Also, look for facts in exam such as class rep who installed roof himself (faulty installation, etc.) Also look at adequacy of counsel of class reps.

Question 8

23(b)(1) and (2)

Answer 8

(b) A class action may be maintained if 23(a) is met and:
(1) Separate actions by class members would create a risk of inconsistent results or, as a practical matter, would impair the interests of other absent class members; or
(2) A defendant has acted or refused to act on grounds applicable to the class and injunctive or declaratory relief is appropriate for the class as a whole (ex. most civil rights actions)

Question 9

23(b)(3)

Answer 9

23(b) - A class action may be maintained if Rule 23(a) is satisfied and if:
(1), (2), or

(3) There are questions of fact or law common to members of the class that predominate over individual issues and a class action is superior to the alternative methods of adjudication.
4 matters for consideration in determining superiority:
1. Class members’ interests in individually controlling the actions
2. Existing litigation concerning the controversy by or against class members.
3. The desirability or undesirability of concentrating the litigation of the claims in the particular forum; and
4. The likely difficulties in managing a class action.

Question 10

23(c)(1)

Answer 10

Certification Order

(1) Certification Order
(a) Time to Issue - At an early practicable time after a person sues or is sued as a class rep, the court must determine by order whether to certify the action as a class action.
(b) Defining the Class; Appointing Class Counsel - An order that certifies a class action must define the class and the class claims, issues, or defenses and must appoint class counsel under 23(g).
(c) Altering or Amending the Order - An order that grants or denies class certification may be altered or amended before final judgment.

Question 11

23(c)(2) - Notice

Answer 11

(A) - For 23(b)(1) or (2) Classes - the court may direct appropriate notice to the class
(B) - For 23(b)(3) Classes - The court must direct to class members the best notice that is practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. Notice must clearly and concisely state in plain, easily understood language:
1. Nature of the action
2. Definition of the Class Certified
3. The Class claims, issues, or defenses
4. That a class member may enter an appearance through an attny if the member so desires
5. That the court will exclude from the class any member who requests exclusion
6. The time and manner for requesting exclusion
7. The binding effect of a class judgment on members under 23(c)(3)

NOTE - Supreme Ct. has ruled that the class rep must initially bear the costs of notice (can be recovered if the class ultimately prevails).

Question 12

23(c)(3)

Answer 12

Judgment

Court must include and specify or describe who class members are who haven’t requested exclusion and the court considers class members.

Question 13

23(c)(4)

Answer 13

Particular Issues - When appropriate an action may be brought or maintained as a class action with respect to particular issues.

Question 14

23(c)(5)

Answer 14

Subclasses - When appropriate, a class may be divided up into subclasses that are each treated as a class under this rule.

Question 15

Jurisdiction and Class Actions

Answer 15

Personal Jurisdiction - The due process/minimum contacts requirements for Personal Jurisdiction need not be met for absent class members under 23(b)(3). They can be bound by the judgment even though they have no contact with the state.

Subject Matter Jurisdiction
	Diversity - Only citizenship of the named reps are considered to establish diversity. Same for amount in controversy; so long as the rep's claim exceeds $75k the class action may proceed in fed court even if class members' claims do not exceed $75k. The claims by the class members that do not exceed $75k invoke supplemental jurisdiction.

Federal Question - If the class asserts a claim arising under fed law, it can invoke fed question jurisdiction. In that case, citizenship and AIC are irrelevant.

Question 16

23(e)

Answer 16

Rule 23 is set out to protect the interests of the class members. Therefore, any settlement, dismissal, or compromise must be approved by the court. Want to ensure no “sweetheart deal” where class rep is benefited at the expense of the members.

1. Notice
2. Hearing and finding that it is fair, reasonable, and adequate
3. Party(ies) seeking approval must file stmt with the court outlining any agreement
4. If class action was previously certified under 23(b)(3) must give provision to opt out to individual members who previously had the opportunity to but did not
5. Any class member may object to the proposal.

Question 17

23(f)

Answer 17

Appeals - Court of Appeals MAY permit an appeal from an order granting or denying a class-action certification if a petition for permission to appeal is filed w/in 14 days after the order is entered. An appeal does not stay the proceedings in the district court unless the district judge or the court of appeals so orders.

Question 18

Rule 23(g)

Answer 18

Class Counsel

1. Appointing Class Counsel. - A ct that certifies a class must appoint class counsel. In doing so, they should consider:
   - Work done in identifying or investigation the potential claims in the action
   - experience in handling class actions
   - knowledge of the applicable law
   - resources attny can commit to the class
   - other matter pertinent to counsel’s ability to fairly and adequately represent the class
   - ct may require counsel to propose terms for attny’s fees and costs
   - may include provisions about awarding attny’s fees under 23(h)

Question 19

Rule 26(a)

Answer 19

Required Disclosures -

1. Initial Disclosures
2. Expert Testimony
3. Pretrial disclosures

Question 20

Discovery Timeline in federal litigation

Answer 20

1. Court schedules a Rule 26(f) scheduling conference at which a settlement is explored, arrangements are made for 26(a) mandatory disclosures, and a proposal for a discovery plan is developed.
2. Parties make their mandatory disclosures and meet with the trial judge for the scheduling conference at which a discovery timetable is established.

Question 21

Rule 26(a)(1)

Answer 21

Required Disclosures

Initial Disclosures - A party must, w/out awaiting a discovery request, provide the other parties:

1. Names, addresses, and telephone numbers of individuals likely to have discoverable info that the disclosing party may use to support its claims or defenses, unless solely for impeachment.
2. Copies or descriptions of documents, electronically stored info, and tangible (DET) things that are in the disclosing party’s possession, custody, or control (PCC) that the disclosing party may use to support its claims or defenses, unless solely for impeachment.
3. A computation of damages claimed by the disclosing party and copies of non-privileged materials upon which the computation is based.
4. Copies of all insurance policies which may provide coverage for all or some of a later judgment.

Failure to disclose this information can result in the exclusion of the witness’s testimony or the document from evidence.

Question 22

Rule 26(a)(2)

Answer 22

Required disclosure - Disclosure of Expert Testimony - to be disclosed 90 days before trial

A party must disclose the identity of any person who may testify as an expert witness, along with the disclosure of a report for each expert witness. The report must be signed by the expert and state:

1. all of the expert’s opinions as well as the basis and reasons for the opinions
2. any info considered by the expert in forming those opinions
3. any exhibits which support or summarize the opinions
4. the expert’s qualifications, publications, compensations and cases during the past 4 years where she testified or was deposed.

If the witness is not required to provide a written report, the disclosure must still state the subject matter of the testimony and a summary of the facts and opinions about which the expert is expected to testify.

Question 23

26(a)(3)

Answer 23

Required Disclosures - Pretrial disclosures

30 days before trial every party must make a written disclosure of:

1. identity of each witness that may testify at trial
2. deposition testimony and exhibits that may be offered at trial.

Impeachment witnesses and other info does not have to be disclosed.

Any opponent objecting to a depo or exhibit must express an objection w/in 2 weeks of the disclosure of the intent to use it.

Question 24

26(b)(1)

Answer 24

Discovery Scope and Limits
1. Discovery may be had of any nonprivileged matter that is relevant to any party’s claim or defense. “Any matter” includes both documentary evidence and individuals with knowledge of any discoverable matter.

**As long as the information sought is reasonably calculated to lead to the discovery of admissible evidence, it need not be admissible at trial.

Question 25

26(b)(2)

Answer 25

• Limits on electronically stored info

- Proportionality limits - cost shifting for good cause; burden/expense vs. benefit analysis

Question 26

26(b)(3)

Answer 26

Work Product Doctrine

Work product of lawyers and others in anticipation of litigation is discoverable only upon a showing of substantial need and to avoid undue hardship in obtaining materials in an alternative way. If the court orders the disclosure of work product, it must take steps to avoid the disclosure of mental impressions, conclusions, opinions, or legal theories of the disclosing party.

When a party claims that certain discoverable information is privileged trial preparation material, he still must disclose the existence of, but not the contact of, the information to the opposing party so that the opposing party may assess the claim of the privilege.

Attorney must have had a subjective belief that litigation was a real possibility and that belief must have been objectively reasonable.

Question 27

26(b)(4)

Answer 27

A party may depose experts who are expected to be called at trial. If a report is required of this expert, depo may be conducted only after the report is provided.

Opinions of experts who are retained in anticipation of litigation but who are not expected to testify at trial may be discovered only upon a showing of exceptional circumstances under which it is impracticable to obtain facts or opinions but other means.

Question 28

Discovery Devices

Answer 28

Interrogatories 
Request for Admissions
Request for Documents
Depositions
Mental and Physical Evaluations

Question 29

Under what 3 circumstances may an attny instruct a deponent not to answer a question at a deposition?

Answer 29

1. To preserve a privilege
2. To enforce a limitation ordered by the court
3. to present a motion to terminate or limit deposition

Question 30

Under what circumstances may a District Court vacate an arbitration award?

Answer 30

1. fraud/corruption
2. arbitrator misconduct
3. arbitrator exceeded his powers or so imperfectly executed them that a final, definite award on the subject matter submitted was not made.