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Complex Litigation Outline

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Complex Litigation Spring 2011



1 Permissive Joinder o Rule 20(a):
? (1) Plaintiff's can be joined when they assert a right to relief that

* Arises out of the same transaction, occurrence, or series of transactions or occurrences; AND

* Any common question (CQ) of law OR fact exists as to all plaintiffs
? (2) Defendants may be joined when a right to relief is asserted against them that

* Jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transaction or occurrences; AND

* Any common question of law or fact to all defendants will arise in the action. o Purpose:
? Promote trial convenience and expedite the final determination of disputes.
? Pooling of plaintiff resources
? Promote efficiency in system
? However, defendants don't like it because they want to divide and conquer.

* Courts given great discretion here. o Use balancing test:
? Efficiency concern of joinder must be balanced with prejudice to client. o GM v. Mosley: "Logical Relationship"
? Same transaction means any transaction or occurrence that bears a logical relationship is a "same transaction." (Looked at FRCP 13) o Problems:
? Relationship v. discreet fact patterns for each plaintiff o Analysis on exam: should be joined as a p/D because under rule 20(a) their right to relief/the right to relief against them 1) arises out of a common transaction, occurrence, or series ("logical relationship") and 2) involves CQ of law or fact because
? Joinder would be preferable because it would promote judicial efficiency by avoiding the redundancy of litigating the following issue(s) of law or fact. Compulsory Joinder o Rule 19(a): Necessary Party
? Can we join them: "Feasibility"

* Subject to service of process, AND

* Not deprive the court of subject-matter jurisdiction, AND o SMJ, Venue, PJ, # of parties.
? Do we need this party?

* Complete relief could not be had without them; or



2 In their absence, their ability to protect their interest may as a practical matter be impaired or impeded; or

* In their absence, an existing party may incur a substantial risk of inconsistent obligations because of that interest. o Rule 19(b): Indispensible Party
? Deciding if the necessary party is also indispensible:

* If indispensible and can't be joined, case dismissed.
? Flexible Test: "Equity and good Conscience"

* Extent to which the person or existing parties are prejudiced by that person's absence.

* Extent to which the prejudice could be lessened or avoided by: o Protective provisions in judgment o Shaping the relief o Other measures

* Whether an adequate judgment can be rendered in that party's absence.

* Whether plaintiff would have an adequate remedy if action were dismissed. o Eldredge: "Feasibility"
? Whether you can grant complete relief to all existing parties, not for all possible parties.
? 4,500 possible defendants, not feasible to join all.
? Holding: joinder not necessary and intervention can solve all problems. o Shimkus:
? Blacks wanting preferential treatment in housing
? White housing determined to be necessary because

* Complete relief could not be granted

* Impair whites interests

* Inconsistent obligations confusing defendants Intervention: o Provides a way for an outsider to voluntarily get into the suit they feel they have an interest in. "3rd party asserting their right to be involved." o Rule 24(a): "Intervention of Right"
? Party has an unconditional right to intervene by federal statute; OR
? Party has:

* Recognized interest in subject matter of case,

* Interest might be impaired by disposition of suit, and

* Interest not adequately represented by existing parties. o Rule 24(b): "Permissive Intervention"
? Timely motion that asserts a:

* Conditional right to intervene conferred by federal statute; or

* Claim or defense that shares a common question of law OR fact with main action. o Add notes.

Undue Delay or Prejudice would result by permitting intervention:

* Time intervenor knew or should've known of its interest in case

* Prejudice to existing parties from delay in seeking intervention

* Prejudice to intervenor if intervention is denied

* Unusual circumstances militating for or against a finding of timeliness.
? PJ and SMJ is still required for court to permit intervention. o Purpose: "Economy and efficiency"
? Merges additional issues related to the original case into one suit, avoiding multiple trials. o Recognized interests:
? Economic injury: decline in property values
? Non-economic injury: intangible, "quality of life" o Not a recognized interest:
? Defending one's beliefs or wishes
? Keeping your information out of IRS control. o Adequate Representation Issue:
? Same interests = probably adequate.

* Court doesn't have to admit.
? Not same interests = probably not adequate

* Court would likely have to admit. o Consequences not as severe as rule 19
? No dismissal
? Intervention is never compulsory. o Standing for Intervention
? Split courts as to whether need Art. III standing (case or controversy).
? Intervenor CANNOT continue case without Art. III standing if original plaintiff settles out.
? Cannot appeal an adverse judgment without Art. III standing. Joinder Summary: o Joinder of claims: 18(a) = liberal for efficiency
? FRCP 1367: supplemental jurisdiction for new claims

* (a) Can bring in new claims if from "same case or controversy under Art. III"

* (b) Original plaintiffs cannot assert new claims against new parties brought in under joinder or intervention. o Standard of appeal: abuse of discretion o 17(a): "real party in interest"
? If a real party in interest doesn't timely join suit, then any judgment will have res judicata effect on them. o All decisions under Joinder and Intervention can always be changed later on as the case develops and new facts arise. o Animal Protection Case:
? Standing relaxed for public interest cases.*

3 ?



4 Argued that interests are narrower than original parties, so should have a right to intervene because interests would not be adequately represented. Multidistrict and Multiple Lawsuits

Stay and Injunction: o A federal court may stay or enjoin the proceeding of another federal court with preference being given to the first suit, except in specific instances:
? Customer action: 1st suit against customer of infringer, 2nd suit against infringer. "Glukin"
? Forum shopping is only motivation for first suit (Same parties in both). o Purpose:
? Judicial economy and efficiency. Preventing duplicative litigation.
? Duplicative litigation: two suits so closely related judgment in one will have a res judicata effect on the other.
? Related litigation: two suits similar, but not enough to have a res judicata effect on the other. o Problems with duplicative litigation:
? Wasteful
? Allows forum shopping.
? Can result in inconsistent or conflicting determinations. o Glukin: "Customer Action"
? When second suit is preferred over the first suit:

* Who has more knowledge of suit.

* Who will defend the action most vigorously

* Which venue is more appropriate

* Adequate remedy available for parties to non-favored action.

* Look for forum shopping o Semmes:
? First filed case gets priority, unless:

* Balancing of conveniences shows a favoring for the second case. Pretrial Consolidation o Only available to suits in the same district and division. o Rule 42(a):
? If common question of law or fact, then court may:

* Join for hearing or trial any or all matters at issue.

* Consolidate actions.

* Issue any orders that avoid unnecessary cost or delay. o Broader than joinder
? Doesn't have to arise out of same transaction or occurrence.
? End around of joinder? Yes, because only consolidating issues.
? Courts creating complex litigation when wouldn't have without consolidation. o Pretrial ONLY not trial consolidation (in theory)
? Can stay for trial, but parties must ask to stay and both must agree on it.



5 o Tension between transferee judge and transferor judge:
? Power struggle o Katz:
? Role of counsel: may end up with lead counsel and steering committees to help manage case.
? Management of complex litigation cases

* Bystander defendants getting put into discovery o Can excuse them from depositions, they can just read the transcripts. o Then if they need something more, they can handle after.

* Court and parties have power to be creative
? Test for a valid consolidation order:

* Special attention to underlying facts

* Potential economies v. prejudice to parties Transfer: o Was the forum proper?
? If yes, use 1404.
? If no, use 1406. (Improper SMJ, PJ, Venue) o 1404:
? A fed. court can transfer any case to any other fed. district or division if:

* Interest of justice

* More convenient for parties and witnesses

* To a venue where suit could've been brought (eligible receiver).
? Choice of law principles of the transferor court apply in new court.

* Get to take your law with you if you have to go.
? Plaintiff's choice of forum is given substantial weight and is balanced against the above 3 factors. o 1406:
? Court has two options:

* Dismiss the case

* Transfer to a venue where suit could have originally been brought.
? Choice of law principle of the new court applies because venue was improper in old court.

* Prevents forum shopping. Forum non Conveniens o Court may dismiss the case where:
? An original court has proper jurisdiction, but a different court provides a better forum for the matter. o Court must balance inconvenience to defendant against plaintiff's choice of forum:
? If plaintiff's choice of forum was reasonable, defendant must show a compelling reason to change jurisdiction.
? If a transfer would simply shift the inconvenience from one party to the other, plaintiff's choice of forum should not be disturbed.

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