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Intro 2 Complex Lit.

Dif. Def's 4 Complex Cases

  1. Non Def.
    1. Dif. Factors Not Single Def.
      1. Cost high
      2. Many issues
      3. Many parties
      4. Many fora
      5. Hard issues
      6. Protracted in nat.
  2. Substantive Theory
    1. C /A's Inherently Complex
      1. Antitrust
      2. IP
      3. Mass empl. discrim. claims
      4. Prod. liab. in mass tort
  3. Proced. Feature
    1. Proced. Uniqueness
      1. Pretrial prcg intractable
      2. Difficulty of proof
      3. Complication in implementing remedy
      4. Unusual joinder / consolidation in case
  4. Descriptive
    1. Shift From Priv. Litig. 2 Pub. Law Litig.
    2. Priv. Litig. Was
      1. Simple C/A w/bipolar parties 4 priv. int. claims like K
      2. Party initiated & controlled w/judge as neutral
      3. Remedy focus on past damage
    3. Pub. litig.
      1. Groups of parties
      2. Prospective, ongoing / ad hoc relief w/sig. outside of litig.
      3. Remedy negotiated in settlements, not trial
      4. Remedy implementation req. cont. jud'al involvement
      5. Judge has more responsibility in fact eval. of case mgmt
  5. Tidmarsh's 2 Part Def.
    1. At Least 1 of 4 Types of Complexity Of
      1. Formulational complexity where atty can't really present info clearly
      2. Dec. making complexity where hard 4 jury 2 dec.
      3. Remedial complexity where hard 2 implement remedy
      4. Joinder complexity
    2. Results in Incr. in Jud'al Pwr
      1. Viol's rationality princ. b/c FRCP not designed 4 complex cases
      2. Judge moves beyond classical role

Disposing Duplicative / Rel'ed Parallel Litig.

Cases Both In Fed. Cts

  1. Soln's
    1. Ask 1 ct. 2 stay
    2. Ask 1 ct. 2 enjoin the other
    3. Transf. by 1404 then Rule 42 motion 2 consolidate
  2. 1st File Rule
    1. 1st filed case presumed 2 trump other cases if 2 rel'ed case in dif. cts
    2. Exceptions
      1. Show balance of conv. in favor of 2nd case /
      2. Spec. circ's
        1. Customer axn where sue customer of mfgr., not mfgr.
        2. Forum shopping where forum was only motive 2 pick 1st case's site
      3. But neither exception applies if judge shopping
  3. Rule 42)a Consolidation
    1. Consolidate axn w/common quest. of law / fact pending before ct.
    2. Consolidate 4 conv. & econ. but not merge
    3. Can order jt. hrg / trial of any / all matters in issue
    4. Must B in same ct. & same div., not just same dist.
      1. Could transf. 2 meet reqt by 1404)a of venue / 1404)b of div.
  4. Forum Transf's (EXAM)
    1. Section 1404)a
      1. If conv. of parties & W's / priv. consid. +,
        1. Evid. loc.
        2. Forum conv. 4 parties & atty's
        3. Cheapest forum 2 prod. W's
        4. Gen'ly consid. conv. / parties & W's
      2. In int. of justice / pub. consid. +,
        1. Where 2 most eff. adjud. so not waste res.'s
        2. What law gov's
        3. Avoid burdening cit. 4 trials w/o local int.
      3. Ct may transf. 2 another dist. / div. where might have been brought
        1. Can't transf. 2 where pers.'al jxn could've been waived / consented
      4. Strong presumptions 2 favor P's chosen forum
      5. Law of transferor applied
    2. Section 1406
      1. If wrong dist., shall dismiss / in int. of justice, transf. 2 dist. where could've been brought
      2. Invoked 4 improper venue & pers'al jxn but not 4 subj. matter jxn
      3. Law of transferee applies
  5. Forum Non Conveniens (EXAM)
    1. Dismiss in favor of adjud. in another sys.
    2. Elements 4 Forum Non Conv.
      1. Proper fed. case
      2. Adeq. alt. forum 2 resolve dispute in foreign (for.) country if int'l
        1. Remedy adeq.
        2. C /A equiv. 2 US exists
        3. No extreme / profound delay
      3. If adeq., adjud. in for. country is best 4 parties' conv. & int. of justice
        1. Priv. & pub. factors of 1404 applied
        2. Dif. stand. of proof by P's cit.
          1. If P is not for.'er, must find balance strongly favor dismissal otherwise, can't dismiss
          2. If P for.'er, less deference
    3. Avoiding Forum Non Conv. if For. P
      1. For. forum inadeq. arg.
        1. Plead C/A's not recog'ed in for. forum
        2. Proof of extreme delay
        3. Name D's not subj. 2 & won't consent 2 for.
      2. For. forum is inconv.
        1. Name lots of Amer.'s
  6. Muti-District Litig.: 1407
    1. Reqt's 2 Transf. 2 Consolidate Many Cases
      1. One / more quest. of fact +
      2. Dif. dist. +
      3. Some benefit 2 conv. of parties & W +
      4. Just & eff. cond. of axn
      5. Very min. stand. req'ed 4 above reqt's
    2. Transf. Only 4 Pre-trial Purposes
      1. Transf'ed 2 dec. things like discov. before jury dec.
      2. Then remanded back 2 transferor dist. unless term'ed
    3. Panel of 7 Cir. & Dist. Ct. Judges
    4. Initiated by Panel / Party
    5. Enter Order of Transf.
      1. Before order, atty can obj. w/App. Ct. where hrg is
      2. After order, atty can obj. w/App. Ct. where transferee dist. is
    6. Transferee Judge Desig.'ed
      1. Temp. desig. of any US dist. judge
      2. Min. view that transferee judge's pwr over nondiscov. matter ok only if nec. 2 effectuate discov. control
      3. Max. view that transferee judge has full pwr whether discov. / not

Fed. & State Cases

  1. Fed. Abstention (EXAM)
    1. Jud.'al Rule
      1. Fed. cts must abstain / refuse 2 dec. proper fed. case so state ct. can dec.
      2. Policy / justific.
        1. State law clarific. might avoid Const'al quest's
        2. Fed. axn disrupts complex state reg. / adm. structure
        3. Eff.
        4. Expertise in state
    2. Types
      1. Pullman Abstention
        1. Reqts
          1. Subst'l uncert. on meaning of state law +
          2. Rsbl possibility that state ct. clarific. of state law will avoid need 4 Const'al ruling
          3. But if patently unConst'al state law, allow case in fed.
          4. Only limited 2 when there's fed Const'al issue
        2. Effect
          1. Could reserve fed Const'al quest. until state dec's unclear state law by staying fed. ct. until that pt. /
          2. P may take everything 2 state ct. which dismisses fed. case
        3. Policy / Rationale
          1. Avoids friction
          2. Low likelihood of erroneous interp. of state law by fed.
          3. Avoids unnec. Const'al ruling
      2. Burford Abstention
        1. Reqts
          1. Fed. reg. might disrupt complex state adm. regime
          2. Only 4 cases of equity / mixed equity & legal
        2. Effect
          1. Compl. dismissal of fed. case
      3. Younger Abstention
        1. Reqts
          1. Fed. cts can't enjoin pending state prcg even if Const'al viol.
            1. Used 2 B just crim. state prcgs
            2. Now also 4 civil prcg's
          2. Must involve fed Const'al issue
          3. Exceptions 4 extraord. circ's
            1. Bad faith prosec. in state crim. cts
            2. Patently unConst'al state law in every cl. & applic.
            3. No adeq. state forum 2 raise fed. Const'al issue
        2. Effect
          1. Compl. dismissal of fed. case
        3. Policy / Justific.
          1. Avoid interference w/pending state prcg
          2. In equity, shouldn't act if movant has adeq. remedy @ law
          3. For comity, fed. cts shouldn't dominate state cts
  2. Stays & Fed. Injunctions of State Prcgs
    1. Can't Enjoin Each Other
      1. State can't enjoin fed
      2. Fed can't enjoin state by
        1. Anti-Injunction Act 28 USC 2283
        2. Younger abstention
    2. Fed Presume Against Staying 4 Wise Jud'al Adm. Unless
      1. Which ct. 1st assumed jxn over res (need in rem jxn)
      2. Inconv. of fed. forum
      3. Avoid piecemeal litig.
      4. Order of filing
      5. Adeq. of protecting state rts
      6. Presence of fed. law
      7. Attempt 2 invoke fed. jxn in bad faith
    3. Anti-Injunction Act 28 USC 2283
      1. Bars injunction against state cts & parties in pending state prcg
        1. Can enjoin initiation of state case though
      2. Exceptions
        1. Cong. / stt.
        2. Nec. 2 aid jxn but only if in rem jxn
        3. Effectuate / protect previous fed. jgmt

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Ms. Haeji Hong

May 4, 1998

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