Disposing Duplicative / Rel'ed Parallel Litig.
Cases Both In Fed.
- Forum Transf's
- Section 1404)a
- If conv. of parties & W's / priv. consid.
- Evid. loc.
- Forum conv. 4 parties & atty's
- Cheapest forum 2 prod. W's
- Gen'ly consid. conv. / parties & W's
- In int. of justice / pub. consid. +,
- Where 2 most eff. adjud. so not waste res.'s
- What law gov's
- Avoid burdening cit. 4 trials w/o local int.
- Ct may transf. 2 another dist. / div. where might
have been brought
- Can't transf. 2 where pers.'al jxn could've been
waived / consented
- Strong presumptions 2 favor P's chosen forum
- Law of transferor applied
- Section 1406
- If wrong dist., shall dismiss / in int. of justice,
transf. 2 dist. where could've been brought
- Invoked 4 improper venue & pers'al jxn but
not 4 subj. matter jxn
- Law of transferee applies
- Forum Non Conveniens
- Dismiss in favor of adjud. in another sys.
- Elements 4 Forum Non Conv.
- Proper fed. case
- Adeq. alt. forum 2 resolve dispute in foreign
(for.) country if int'l
- Remedy adeq.
- C /A equiv. 2 US exists
- No extreme / profound delay
- If adeq., adjud. in for. country is best 4 parties'
conv. & int. of justice
- Priv. & pub. factors of § 1404 applied
- Dif. stand. of proof by P's cit.
- If P is not for.'er, must find balance strongly
favor dismissal otherwise, can't dismiss
- If P for.'er, less deference
- Avoiding Forum Non Conv. if For. P
- For. forum inadeq. arg.
- Plead C/A's not recog'ed in for. forum
- Proof of extreme delay
- Name D's not subj. 2 & won't consent 2 for.
- For. forum is inconv.
- Name lots of Amer.'s
Fed & State Cases
- Fed. Abstention
- Jud.'al Rule
- Fed. cts must abstain / refuse 2 dec. proper
fed. case so state ct. can dec.
- Policy / justific.
- State law clarific. might avoid Const'al quest's
- Fed. axn disrupts complex state reg. / adm.
- Expertise in state
- Pullman Abstention
- Subst'l uncert. on meaning of state law +
- Rsbl possibility that state ct. clarific. of
state law will avoid need 4 Const'al ruling
- But if patently unConst'al state law, allow case
- Only limited 2 when there's fed Const'al issue
- Could reserve fed Const'al quest. until state
dec's unclear state law by staying fed. ct. until that pt. /
- P may take everything 2 state ct. which dismisses
- Policy / Rationale
- Avoids friction
- Low likelihood of erroneous interp. of state
law by fed.
- Avoids unnec. Const'al ruling
- Burford Abstention
- Fed. reg. might disrupt complex state adm. regime
- Only 4 cases of equity / mixed equity & legal
- Compl. dismissal of fed. case
- Younger Abstention
- Fed. cts can't enjoin pending state prcg even
if Const'al viol.
- Used 2 B just crim. state prcgs
- Now also 4 civil prcg's
- Must involve fed Const'al issue
- Exceptions 4 extraord. circ's
- Bad faith prosec. in state crim. cts
- Patently unConst'al state law in every cl. &
- No adeq. state forum 2 raise fed. Const'al issue
- Compl. dismissal of fed. case
- Policy / Justific.
- Avoid interference w/pending state prcg
- In equity, shouldn't act if movant has adeq.
remedy @ law
- For comity, fed. cts shouldn't dominate state
Prereq's 2 Class Axn
- Fed Quest.
- Cit. of class rep / named class member only
- Amt in controv. of $75k met by all class members,
named & unnamed
- Class Def. Req's
- Def'able / ID'able Class Before Lawsuit
- Some basis 2 see who's in class
- Rsns 4 Def'able Class
- Need 4 notice 4 D/P
- Need 4 claim & issue precl. issues
- Imp. in damage class 2 dist. recov. 2 class
- Rule 23)a Prereq's
- Joinder impract'able
- Numerous by
- Geog'ly disperse indiv's
- Geog'ly disperse prop.
- Large # of indiv's whose claims R small
- Gen'ly 1,000 is good # but 56 is 2 low
- Quest. of law / fact common 2 class
- Substantive law 2 class certif.
- Low threshold
- In sec. axns, misrep. 2 lots of people common
- Claim / defense of party rep's typical 2 class
- La Mar doc. that P is rt. person / must B eligible
2 sue in his own rts
- Def'ed broadly 4 lots of class axn but narrowly
4 less class axns
- Factors of typical claims
- Same injury
- Same D's / dif. D's w/same conduct as orig.'al
- Same legal claim
- Trxn'al rel.
- Same defenses
- Same evid. / types of proof
- Adeq. of Rep.
- Rt person but not nec'ly best
- Ensure D/P not viol'ed otherwise, no res judicata
- Must not have int. adverse 2 class
- Qualified & competent
Rule 23)b Class Types
- Anti-Prejud. Class: Rule 23)b)1
- Focus on D: Rule 23)b)1)a
- Prejud. 2 D b/c subj. 2 incompatible dir.'s if
indiv. class members prosec.'ed sep'ly
- Must B some person w/rts / duties 2 people in
- In position such that conflicting adjud. might
req. inconsistent acts
- Narrow view is can't certify if multiple axn
only creates inconsistent jgmts but must prod. inconsistent conduct
w/respect 2 same P
- Broad view ok's certif. if any X there's risk
of inconsistent adjud.
- Focus on Class Members in Limited Fund
Case: Rule 23)b)1)b
- Pract'al risk that class members' int. prejud'ed
if not proceed as class axn
- Prove total net assets of D's +
- Claims of class exceed limited fund
- Injunction Class: Rule 23)b)2
- Make Final Injunctive Relief
- D acted / refused 2 act which is gen'ly applicable
- Damages must B incidental
- Class Def. Not Very Imp.
- Damages Class: Rule 23)b)3
- Predom. of common quest. +
- Mass fraud gen'ly proper b/c same liab. issues
- Mass pers'al inj. not proper b/c dif. liab. 4
indiv's but trend 2 consid. as proper class now
- Superiority 2 other methods of adjud.
- Int. of class
- Extent & nat. of litig. 4 claims already
- Desire of concentrating 2 partic. forum
- Difficulty in mgmt of class
- Stty'ry Pwr 4 Mag's: 28 USC §
- Dist ct. appt's
- Must have been @ bar @ least 5 yrs. & competent
- Not rel'ed by blood / marriage 2 appt'ing judge
- No mag's over 70 yrs. old
- Only serve 8 yrs. as mag.
- Remove 4 incomptency, misconduct, neglect, /
- May act like dist ct's in findings & det's
- Mag. Can Conduct Hrg's
- Can conduct hrg's & submit findings of fact
& rec. 4 disposition
- But can't 4 posttrial relief of crim. offense
& prisoner's petitions
- Can conduct hrg's of dispositive motions 2
- Mag. May Conduct Prcg's of Trial
- Can do so by consent 4 jury / nonjury civil matter
- Appealing Mag. Dec's
- To approp. ct. of appeals
- Parties can consent 2 appeal 2 dist. ct. 4 appeal
- Mag. Det's Pretrial Matters Only
- Can't hear dispositive matters
- Can't hear post-trial matters
- Dispositive v. Nondispositive
- Mag. can hear & det. such pretrial issues
- Dist. ct. limited in rev. by stand. of clearly
err. / contrary 2 law
- Prelim. & final pretrial conf.
- Status conf. & settlement conf.
- Motions 2
- Postpone / expedite trial
- Dismiss w/leave 2 amend
- Sever / consolidate
- Set aside default jgmt
- Add parties
- File 3rd party complaint
- Extend X / amend pleadings
- Substitute counsel
- Prep. of class axn
- Inadm. evid.
- Not allowing W 2 testify
- Mag. can only make findings & rec. but can't
- Parties' consent is exception
- Once consent, waived rt. 2 dist. judge &
- Dist. ct. makes de novo det. b/c
- Article 3 creates assumption of Const'al rt.
- S /P that jud. must B indep. 4 balance of pwr
so perm. & compensation of dist. ct. not created by stt. is
- De novo det. is when judge makes final dec.,
not de novo hrg
- Jgmt on pleadings
- Sum jgmt
- Suppress evid. of crim.
- Dismiss class axn
- Dismiss 4 failure 2 state claim
- Invol. Dismiss
- Post-trial matters
- Anything else that has compl. effect of being
- Amer. Rule
- Each party bears own cost unless auth. 2 shift
- Dif. from Eng. Rule of winner recov'ing atty's
fees from losers
- Purpose 2 allow meritorious suits 2 go forward
- C /L Exceptions
- Common fund
- Class axn damage suits where named P gets $ by
- Consolidate cases / create common fund 2 pay
- D bears part of P's expenses like jt. doc. depository
- Bad faith in litig.
- Ct has inherent pwr 2 shift atty fee if party
is vexatious / bad faith
- Priv. Atty Gen. (no longer exception)
- Cts created in 1970's 4 priv. parties litig'ing
4 pub. good
- But Sup ct struck down so only allow as if stt's
- Stt'ry Exceptions
- Recov. treble damage & atty's fee 4 prevailing
- Ct's discretion 2 w/hold atty fee if P misbehaves
- Civil rts
- Prevailing party may recov. atty's fees by 1964
Civil Rts Act
- If P prevails, then no bad faith reqt
- If D prevails, est. P acted in bad faith during
- Litig. Misconduct: § 1927
- Atty pers'ly pay 4 opponent's atty fee 4 multiplying
litig. frivolously / vexatiously
- Lodestar Approach 2 Det. Atty Fee
- Rsbl Fee 4 Compl'ly Prevailing Party
- Start w/ (# of hrs rsbly expended) (rsbl hr'ly
- MKt rate payment of atty is presumtively rsbl
- Obj. portion of test
- Adjust up / down based on other consid. / multiplier
- Results obtained is most critical factor
- X & labor req'ed
- Novelty & difficulty of quest's
- Skill req'ed
- Precl. of empl. by accepting the case
- Customary fee
- Conting. fee / not
- X limit by client / circ.
- Undesirability of case
- Nat. & length of prof'l rel. w/client
- Award in similar cases
- Not supp'ed 2 B precise rule
- Fee 4 Partially Prevailing Party
- Segregate claims lost from claims prevailed if
- If can't seg., then consid.
- P's level of success +
- Fee award incl'ing X on lost claims is consistent
w/overall results obtained
- If extraord. results, then may enhance based
on multiplier factors
- Challenges 2 Lodestar Approach
- Disadv's 2 Lodestar
- Consumes jud'al X
- Delays recov. 2 P's
- Discourages early settlement
- Not really obj.
- Percentage of Recov. as Alt.
- Set % of atty fee early on
- Adjust up / down based on extraord. circ's
- Less X
- Settle sooner
- Some get more / less than really deserve
- Incentive not 2 do as much work
- Might incr. total recov.
- If more than 1 firm involved, do Lodestar anyway
- Can't use if settle 4 other than cash
- Hybrid Approach
- Start w/Lodestar of (# of hrs rsbly expended)
(rsbl hr'ly rate) + up / down by factors
- Then % of recov. applied so adj. up / down if
Lodestar is off from % of recov.
- Ct's Broad Discretion 4 Atty's Fee
- Discretion Over
- Choice of method of calc'ing
- What's rsbl
Preclusive Effect of Jgmt
Claim Precl. / Res Judicata
- Jgmt in Prior Lawsuit Bars Relitig. in
- Claim in suits is same
- Party against whom claim precl. is asserted was
party / in privity w/party 2 prior suit
- Jgmt is final &
- Jgmt was on the merits
- Def'ing Claims in Suit
- Fn. of how ct. def's claims 4 jxn, pleadings,
- Fed sys. def. broadly 4 broad claim precl.
- Three approaches
- C /L writ approach where claim was rt. in partic.
- Legal theory approach where can't relitig. same
- Trxn'al / modern approach
- Claim is all rts 2 relief / defense arising from
single trxn / occurrence / series of trxns / occurrences
- Must bring everything from 1 trxn in 1 case /
barred later even if didn't raise C/A
- Subj. in det'ing trxn
- Def'ing Party / In Privity
- Formal party who appeared before
- Party in privity if ct. det's has suff. rel.
2 party in 1st case
- D /P Const'al limit in def'ing privity
- Rel's suff. 2 B privity
- Successor of int. in prop.
- Nonparty controls prior litig.
- Had effective choice 2 legal theories &
- Had opp. 2 rev. & appeal
- Nonparty's legal int. was adeq'ly rep'ed
- Govt sued before, priv. party subseq'ly barred
unless distinct legal int. / rt. 2 relief wasn't avail. in 1st
- Claim Precl. Effect
- Choice of Law 4 Privity / Claim Precl.
- Gov'ed by law that issued jgmt before
- State Jgmt Against Excl. Fed. Claim
- State jgmt in class axn releasing excl. fed.
jxn claims subj. 2 claim precl.
- Applic. of § 1738 2 give FFCC of state jgmts
- Arg. that jgmts subj. 2 collateral attack on
- Inadeq. rep.
- No notice
- No ability 2 opt out /
- No opp. 2 B heard
- Class Jgmt & Indiv. Jgmt
- If find class pattern of discrim., creates presumption
of indiv. discrim.
- If find no class pattern, not create presumption
of indiv. discrim.
- 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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