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Complex Litigation Outline

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This is an extract of our Complex Litigation document, which we sell as part of our Complex Litigation Outlines collection written by the top tier of Oklahoma City University School Of Law students.

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Complex Litigation Spring 2011

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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
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? 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

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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.*

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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.

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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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