Disposing Duplicative / Rel'ed Parallel Litig.

Cases Both In Fed.

  1. Forum Transf's
    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
  2. Forum Non Conveniens
    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

Fed & State Cases

  1. Fed. Abstention
    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

Class Axn

Prereq's 2 Class Axn

  1. Jxn
    1. Fed Quest.
    2. Diversity
      1. Cit. of class rep / named class member only
      2. Amt in controv. of $75k met by all class members, named & unnamed
  2. Class Def. Req's
    1. Def'able / ID'able Class Before Lawsuit
      1. Some basis 2 see who's in class
    2. Rsns 4 Def'able Class
      1. Need 4 notice 4 D/P
      2. Need 4 claim & issue precl. issues
      3. Imp. in damage class 2 dist. recov. 2 class
  3. Rule 23)a Prereq's
    1. Numerosity
      1. Joinder impract'able
      2. Numerous by
        1. Geog'ly disperse indiv's
        2. Geog'ly disperse prop.
        3. Large # of indiv's whose claims R small
        4. Gen'ly 1,000 is good # but 56 is 2 low
    2. Commonality
      1. Quest. of law / fact common 2 class
        1. Substantive law 2 class certif.
        2. Merits
      2. Low threshold
        1. In sec. axns, misrep. 2 lots of people common if written
    3. Typicality
      1. Claim / defense of party rep's typical 2 class
      2. La Mar doc. that P is rt. person / must B eligible 2 sue in his own rts
      3. Def'ed broadly 4 lots of class axn but narrowly 4 less class axns
      4. Factors of typical claims
        1. Same injury
        2. Same D's / dif. D's w/same conduct as orig.'al D
        3. Same legal claim
        4. Trxn'al rel.
        5. Same defenses
        6. Same evid. / types of proof
    4. Adeq. of Rep.
      1. Party
        1. Rt person but not nec'ly best
        2. Ensure D/P not viol'ed otherwise, no res judicata
        3. Must not have int. adverse 2 class
      2. Atty
        1. Qualified & competent

Rule 23)b Class Types

  1. Anti-Prejud. Class: Rule 23)b)1
    1. Focus on D: Rule 23)b)1)a
      1. Prejud. 2 D b/c subj. 2 incompatible dir.'s if indiv. class members prosec.'ed sep'ly
      2. Must B some person w/rts / duties 2 people in class +
      3. In position such that conflicting adjud. might req. inconsistent acts
        1. Narrow view is can't certify if multiple axn only creates inconsistent jgmts but must prod. inconsistent conduct w/respect 2 same P
        2. Broad view ok's certif. if any X there's risk of inconsistent adjud.
    2. Focus on Class Members in Limited Fund Case: Rule 23)b)1)b
      1. Pract'al risk that class members' int. prejud'ed if not proceed as class axn
      2. Prove total net assets of D's +
      3. Claims of class exceed limited fund
  2. Injunction Class: Rule 23)b)2
    1. Make Final Injunctive Relief
      1. D acted / refused 2 act which is gen'ly applicable 2 class
      2. Damages must B incidental
    2. Class Def. Not Very Imp.
  3. Damages Class: Rule 23)b)3
    1. Reqt's
      1. Predom. of common quest. +
        1. Mass fraud gen'ly proper b/c same liab. issues
        2. Mass pers'al inj. not proper b/c dif. liab. 4 indiv's but trend 2 consid. as proper class now
      2. Superiority 2 other methods of adjud.
      3. Factors
        1. Int. of class
        2. Extent & nat. of litig. 4 claims already commenced
        3. Desire of concentrating 2 partic. forum
        4. Difficulty in mgmt of class

Jud'al Control

Jud'al Surrogates

  1. Magistrates
    1. Stty'ry Pwr 4 Mag's: 28 USC 631
      1. Dist ct. appt's
      2. Must have been @ bar @ least 5 yrs. & competent
      3. Not rel'ed by blood / marriage 2 appt'ing judge
      4. No mag's over 70 yrs. old
      5. Only serve 8 yrs. as mag.
      6. Remove 4 incomptency, misconduct, neglect, / disability
      7. May act like dist ct's in findings & det's
    2. Mag. Can Conduct Hrg's
      1. Can conduct hrg's & submit findings of fact & rec. 4 disposition
      2. But can't 4 posttrial relief of crim. offense & prisoner's petitions
      3. Can conduct hrg's of dispositive motions 2
    3. Mag. May Conduct Prcg's of Trial
      1. Can do so by consent 4 jury / nonjury civil matter
    4. Appealing Mag. Dec's
      1. To approp. ct. of appeals
      2. Parties can consent 2 appeal 2 dist. ct. 4 appeal on record
    5. Mag. Det's Pretrial Matters Only
      1. Can't hear dispositive matters
      2. Can't hear post-trial matters
    6. Dispositive v. Nondispositive
      1. Nondispositive
        1. Mag. can hear & det. such pretrial issues
        2. Dist. ct. limited in rev. by stand. of clearly err. / contrary 2 law
        3. Incl's
          1. Discov.,
            1. Prelim. & final pretrial conf.
            2. Status conf. & settlement conf.
          2. Motions 2
            1. Postpone / expedite trial
            2. Dismiss w/leave 2 amend
            3. Sever / consolidate
            4. Set aside default jgmt
            5. Intervene
            6. Add parties
            7. File 3rd party complaint
            8. Extend X / amend pleadings
            9. Substitute counsel
          3. Prep. of class axn
          4. Inadm. evid.
          5. Not allowing W 2 testify
      2. Dispositive
        1. Mag. can only make findings & rec. but can't det.
          1. Parties' consent is exception
          2. Once consent, waived rt. 2 dist. judge & is irrevocable
        2. Dist. ct. makes de novo det. b/c
          1. Article 3 creates assumption of Const'al rt.
          2. S /P that jud. must B indep. 4 balance of pwr so perm. & compensation of dist. ct. not created by stt. is imp.
        3. De novo det. is when judge makes final dec., not de novo hrg
        4. Incl's
          1. Injunction
          2. Jgmt on pleadings
          3. Sum jgmt
          4. Dismissal
          5. Suppress evid. of crim.
          6. Dismiss class axn
          7. Dismiss 4 failure 2 state claim
          8. Invol. Dismiss
          9. Post-trial matters
          10. Anything else that has compl. effect of being dispositive

Atty's Fees

  1. Amer. Rule
    1. Def.
      1. Each party bears own cost unless auth. 2 shift fees
      2. Dif. from Eng. Rule of winner recov'ing atty's fees from losers
      3. Purpose 2 allow meritorious suits 2 go forward
    2. C /L Exceptions
      1. Common fund
        1. Class axn damage suits where named P gets $ by common fund
        2. Consolidate cases / create common fund 2 pay lead atty
        3. D bears part of P's expenses like jt. doc. depository
      2. Bad faith in litig.
        1. Ct has inherent pwr 2 shift atty fee if party is vexatious / bad faith
      3. K
      4. Priv. Atty Gen. (no longer exception)
        1. Cts created in 1970's 4 priv. parties litig'ing 4 pub. good
        2. But Sup ct struck down so only allow as if stt's allow
    3. Stt'ry Exceptions
      1. Antitrust
        1. Recov. treble damage & atty's fee 4 prevailing P
        2. Ct's discretion 2 w/hold atty fee if P misbehaves
      2. Civil rts
        1. Prevailing party may recov. atty's fees by 1964 Civil Rts Act
        2. If P prevails, then no bad faith reqt
        3. If D prevails, est. P acted in bad faith during litig.
      3. Litig. Misconduct: 1927
        1. Atty pers'ly pay 4 opponent's atty fee 4 multiplying litig. frivolously / vexatiously
  2. Lodestar Approach 2 Det. Atty Fee
    1. Rsbl Fee 4 Compl'ly Prevailing Party
      1. Start w/ (# of hrs rsbly expended) (rsbl hr'ly rate)
        1. MKt rate payment of atty is presumtively rsbl hr'ly rate
        2. Obj. portion of test
      2. Adjust up / down based on other consid. / multiplier factors
        1. Results obtained is most critical factor
        2. X & labor req'ed
        3. Novelty & difficulty of quest's
        4. Skill req'ed
        5. Precl. of empl. by accepting the case
        6. Customary fee
        7. Conting. fee / not
        8. X limit by client / circ.
        9. Exp.
        10. Undesirability of case
        11. Nat. & length of prof'l rel. w/client
        12. Award in similar cases
      3. Not supp'ed 2 B precise rule
    2. Fee 4 Partially Prevailing Party
      1. Segregate claims lost from claims prevailed if possible
      2. If can't seg., then consid.
        1. P's level of success +
        2. Fee award incl'ing X on lost claims is consistent w/overall results obtained
        3. If extraord. results, then may enhance based on multiplier factors
  3. Challenges 2 Lodestar Approach
    1. Disadv's 2 Lodestar
      1. Consumes jud'al X
      2. Delays recov. 2 P's
      3. Discourages early settlement
      4. Not really obj.
    2. Percentage of Recov. as Alt.
      1. Set % of atty fee early on
      2. Adjust up / down based on extraord. circ's
      3. Adv's
        1. Less X
        2. Settle sooner
        3. Predictable
      4. Disadv's
        1. Some get more / less than really deserve
        2. Incentive not 2 do as much work
        3. Might incr. total recov.
        4. If more than 1 firm involved, do Lodestar anyway
        5. Can't use if settle 4 other than cash
    3. Hybrid Approach
      1. Start w/Lodestar of (# of hrs rsbly expended) (rsbl hr'ly rate) + up / down by factors
      2. Then % of recov. applied so adj. up / down if Lodestar is off from % of recov.
  4. Ct's Broad Discretion 4 Atty's Fee
    1. Discretion Over
      1. Amt
      2. Choice of method of calc'ing
      3. What's rsbl

Preclusive Effect of Jgmt

Claim Precl. / Res Judicata

  1. Jgmt in Prior Lawsuit Bars Relitig. in Subseq. Lawsuit
    1. Elements
      1. Claim in suits is same
      2. Party against whom claim precl. is asserted was party / in privity w/party 2 prior suit
      3. Jgmt is final &
      4. Jgmt was on the merits
    2. Def'ing Claims in Suit
      1. Fn. of how ct. def's claims 4 jxn, pleadings, & others
      2. Fed sys. def. broadly 4 broad claim precl.
      3. Three approaches
        1. C /L writ approach where claim was rt. in partic. writ
        2. Legal theory approach where can't relitig. same theory
        3. Trxn'al / modern approach
          1. Claim is all rts 2 relief / defense arising from single trxn / occurrence / series of trxns / occurrences
          2. Must bring everything from 1 trxn in 1 case / barred later even if didn't raise C/A
          3. Subj. in det'ing trxn
    3. Def'ing Party / In Privity
      1. Formal party who appeared before
      2. Party in privity if ct. det's has suff. rel. 2 party in 1st case
        1. D /P Const'al limit in def'ing privity
      3. Rel's suff. 2 B privity
        1. Successor of int. in prop.
        2. Nonparty controls prior litig.
          1. Had effective choice 2 legal theories &
          2. Had opp. 2 rev. & appeal
        3. Nonparty's legal int. was adeq'ly rep'ed
        4. Govt sued before, priv. party subseq'ly barred unless distinct legal int. / rt. 2 relief wasn't avail. in 1st case
  2. Claim Precl. Effect
    1. Choice of Law 4 Privity / Claim Precl. Det.
      1. Gov'ed by law that issued jgmt before
    2. State Jgmt Against Excl. Fed. Claim
      1. State jgmt in class axn releasing excl. fed. jxn claims subj. 2 claim precl.
      2. Applic. of 1738 2 give FFCC of state jgmts
      3. Arg. that jgmts subj. 2 collateral attack on D/P
        1. Inadeq. rep.
        2. No notice
        3. No ability 2 opt out /
        4. No opp. 2 B heard
    3. Class Jgmt & Indiv. Jgmt
      1. If find class pattern of discrim., creates presumption of indiv. discrim.
      2. If find no class pattern, not create presumption of indiv. discrim.
      3. If find indiv. discrim., not create presumption of pattern / pract.

This material is copyrighted by the author. Use of the material for profit is expressly prohibited without the written permission from the author.

Ms. Haeji Hong

May 4, 1998

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