If you buy a product that comes with some kind of agreement (let's say one of those little warranties in the box) that has a clause that any legal action you take against them must take place in Alaska, is this enforceable in light of what we've learned, and you have NOTHING to do with Alaska and didn't get the product there? I've heard of these, and it sounds like it would allow a defendant to manipulate the system by forcing litigation in its own home state, where it may have favor- even though it shifts the inconvenience to the plaintiff.

But there is another problem in your question. It seems that the parties did not really bargain for the choice of venue provision. Instead the purchaser was simply presented with the provision after having bought the product. The movement for enforcing choice of venue provisions is predicated on the idea that parties’ bargain should be respected. But bargaining seems absent here, which makes enforcement less likely - although one could argue that if the consumer did not like the provision he could have returned the product.

28. Question about the enforcement of federal judgments in federal court.

Q.

A.

What is more, there is no independent ground for federal subject matter jurisdiction for the suit on the federal judgment, unless the parties are diverse. For example, assume that a Nevada plaintiff won a judgment in federal court against a Nevada defendant for a suit brought under federal law. The plaintiff now sues to execute the judgment against that defendant in Nevada state court. The defendant may not remove that action to federal court, for there is no federal subject matter jurisdiction for the action. It is a state law action between non-diverse parties.

BUT there is ancillary jurisdiction for a state law action executing the federal judgment as long as it is understood as a continuation of the suit in federal court that rendered the judgment. How long can the successful plaintiff wait to bring these proceedings before that court? Very long. The only requirement is the limitations on such suits under the applicable state law, and that deadline often does not arise for years. So apparently you can go to a federal court years after it issued a judgment on your behalf and sue on the judgment. It will still be considered a “continuation” of the old federal suit, even though the action would surely have a different file number and a different judge assigned to it.

What is more, it turns out there is a method for the certification of a federal judgment in a federal court other than the one where it was issued and that new federal court too can enforce the judgment (see 28 USC section 1963). So, provided that there is certification, which can be done, once again, well after the issuance of the federal judgment, the suit to enforce the federal judgment can be brought in virtually any federal court. There is still ancillary jurisdiction, because it is still thought to be the continuation of the first federal suit. It is as if that first suit had now been transferred. (Of course there must be personal jurisdiction in that new federal court, for example, though the presence of the defendant’s assets in that state.)

But keep in mind that the fact remains that the suit to execute the federal judgment does not have federal subject matter jurisdiction on its own. It still cannot be successfully removed from state to federal court, for example. It is only allowed in federal court because it is considered the continuation of the prior federal proceedings.

Q.

Assume that an insurance claim adjuster for the defendant has taken a measurement of skid marks at the scene of the accident. The police have also taken measurements, which are shorter. The plaintiff believes that the police’s measurements are wrong. The defendant believes, or pretends to believe, that the police’s measurements are right. If the plaintiff asks the defendant for the length of the marks in an interrogatory, the defendant simply provides the police measurements. If the defendant asks for the adjuster’s measurements, the defendant asserts the work-product privilege.

We know that it is very likely that the plaintiff could overcome the work-product privilege because of the usefulness of the adjuster’s measurements for impeachment. That was the main point of the discussion in class. But why can’t the plaintiff simply depose the insurance adjuster and ask him the length of the skid marks? Isn’t that a simple way to get the information without having to overcome the work-product privilege at all? After all, facts are not privileged…right?

A.

It’s best to begin by identifying how this scenario is different from the normal work-product situation. Usually the person creating work product is not a witness to the events being litigated. Instead, he simply interviews those witnesses. As we know, even though the work product is protected, the witnesses themselves can always be deposed by the other side and must state truthfully their view of the facts. This follows from the general notion that facts (or really a person’s views about the facts) are not protected simply because they have been expressed in work product.

But this is a situation where the creator of the work product is himself a witness. This creates a tension. On the one hand the measurement of the skid marks is a fact about the case observed by a witness (the adjuster). It should be discoverable. On the other hand it is also the content of work product and so should be subject to a qualified protection.

What to do? After looking into the matter it has become clear that the adjuster can be deposed as a witness. When deposed, he – like any other witness – must state what he believes the skid marks were. A more problematic situation is if he, under the influence of the defendant, came to the conclusion that his original measurement was wrong and adopted the police report as his view. If so, it might be the case that the original measurement could be gotten only by overcoming the work-product privilege (I’m not sure about this). But it is clear that if the adjuster believes his measurements, the plaintiff can get them simply by asking the adjuster in discovery.

The question was also brought up in class how we would treat the adjuster if we categorized him as a non-testifying expert. After all, their opinions can be found out only given an extraordinary showing. This device did not sound right to me and so I said that courts would refuse to categorize him as an expert. But that still leaves open the question of the witness-observations of a genuine expert. After all, it is conceivable that a genuine expert might observe a case as a witness first-hand. As it turns out, in such a case, the opinions of the expert are discoverable as a normal witness. This was news to me.

32. Question about "facts" not being protected by the work-product privilege.

Q.

Another tension was raised in class that really bothered me regarding interviews with lay-witness. My notes indicate that: (1) On one hand, the underlying facts of the work-product are discoverable. (2) On the other, the content of the work-product is not discoverable. If this is wrong, stop right here.

So let's say plaintiff-counsel P informally interviews lay-witness W. W says "The light was green." However, P does not pass judgment regarding the truth of W's statement -- that is, he does not believe or disbelieve the statement.

If defense-counsel D asks in an interrogatory "Did W tell you the light was green?" It appears that P can refuse to answer because he would divulge the content of the work-product. But let's say D asks in an interrogatory "Does W believe the light was green?" It's not clear to me how this problem should be decided. On one hand, this is an end-run around the work-product rule -- how could P know W believes the light is green unless W told P? On the other hand, W's saying that the light was green presupposes his belief that the light was green, making this an underlying fact. Moreover, this information could be easily discovered through deposition, albeit at a much high cost. So what result?

A.

Your question leads me into a bit of philosophy.

You’re right that requiring P to answer what the witness believes about the light would be an end-run around work-product privilege. It is really no different than asking what the content of the work product is, which, as we have seen, is not allowed under Hickman.

What made this seem like a problem to you is your understanding of the word “fact.” As I noted in class, the idea that facts are not protected by the work-product privilege can be confusing. By “facts” what is really meant is the view about the facts of the person questioned. Why is this so? Well, the best anyone can do when asked something is state his best views about the facts are. For example, assume that the real fact of the matter (eg from God’s perspective) is that the light was red. A witness nevertheless believes that the light was green. The witness is not God and can’t say what the facts are. The best he can do is say what he believes the facts are (namely that the light was green). So he can be required to testify that the light was green, even though the content of his belief is expressed in work product.

Likewise if P is asked whether the light was red, he must answer as he believes. Simply because the content of his belief is expressed in work-product does not mean it is not discoverable. But he cannot be required to answer about what the witness believes, for it is not P’s view about the facts.

33. Question about assignment to create diversity.

Q.
I was working on my outline this morning and I have a question. In looking at the TA's outline, I noticed that she had "one can create diversity by not joining an un-needed party, moving before the claim is filed, or assigning your claim." However, right after that, she has the case of Kramer v. Caribbean Mills which I though established that you could not improperly join a party in order to get federal jurisdiction. Could you please reconcile these 2 things for me? I am a bit confused. Thanks.

A.
Some assignments will be insufficient to create diversity. An example is the assignment in the Kramer case. But the genuine assignment of one's interest in a lawsuit would be able to create diversity. If A(NY) sells his interest in his contract suit against B(NY) to C(NJ) for, say, $200K, with no funny business of the sort that occurred in Kramer (where most of C's recovery was to be returned to A as a "bonus"), then C will be able to sue B in diversity.

On the other hand, if this is done, it will no longer be A's lawsuit that is brought in diversity, so this isn't really a case of A turning his own lawsuit into a diversity case.

34.  Question about direct estoppel.

Q.
What is difference b/n collateral and direct estoppel?

In direct estoppel, the claim is the same. For example, assume P sues D in federal court in New York. D makes a motion to dismiss for lack of SMJ, but the court determines that diversity exists. Nevertheless the action is dismissed, without prejudice, for failure to state a claim. P then sues D (using a redrafted complaint concerning the same event) in federal court in California. D once again makes a motion to dismiss for lack of SMJ. P can claim that D is bound by the earlier determination that diversity exists.

The following is another example of direct estoppel. P sues D for negligence in a state court system in which the law of claim preclusion does preclude P from first suing for property damages and then suing for personal injury. In the first suit for property damages it is determined that D was negligent. P then sues for personal injury. The claim is the same. But D is issue precluded from relitigating his negligence.

35. Question about claim preclusion in toxic tort cases.

Q.
P sues D for mild asbestosis caused by asbestos exposure. P receives damages. Years later, he develops deadly mesothelioma, a cancer caused by asbestos. P sues D for this harm. Claim precluded?

The use of such an exception to claim preclusion outside of asbestos cases is less common. It remains very possible that claim preclusion (not to mention the statute of limitations) will bar a suit for new injuries that the plaintiff could not have known about at the time of the original suit.

Q.

I'm still not exactly clear on some of the privity issues.  If a parent acts on behalf of her child and then brings her own suit for a car accident the parent would be precluded because she controlled the litigation of her child? she would be issue precluded?  
I understand the executor of the will a little better.  when acting for the decedent the executor is taking over that cause of action and in a sense putting themselves in the other person's shoes.  It seems, however, here that the mother would have her own legitimate claim separate from her child.

A.

A number of people have asked me to clarify the issue of privity that is result of the control of litigation, especially when there is a change of capacity (eg one sues first as guardian and then as an individual). These issues were brought up in connection with the Bernhard case. As you will see, you were right to ask questions here.

First of all, as I said in class, if P brings an action in the capacity as a representative of X (eg as guardian), it should be obvious that X is subsequently issue (and claim) precluded, because a relationship of privity exists between P when acting in that capacity and X.

Second, as I also said in class, a relationship of privity can exist (allowing for issue preclusion of the nonparty) when the nonparty controlled the earlier litigation. (This incidentally would not necessarily mean that there would be claim preclusion.) Here are some examples (from the Second Restatement of Judgments section 39):

A brings an action against C for damages to A's property allegedly resulting from C's negligence. B, an insurance company that insured C against liability, assumes defense of the action. A judgment in favor of A is preclusive on B as to the issues determined in the action.

A brings an action against B, a corporation, in which one of the issues is the value of a certain object of property. C, the principal stockholder of B, controls the defense of the action. The determination of the value of the property is conclusive upon C in a subsequent action between him and A.

Notice that it not enough that the nonparty is represented by the same law firm, helped to finance the litigation, appeared as an amicus curiae, or testified as a witness. The level of control of the previous litigation must be higher than that.

Third, let us consider the Bernhard case. Remember that Bernhard as a beneficiary of Sather’s estate first sued Cook. It was determined that the money at issue was a gift from Sather to Cook. Next Bernhard, as administratrix of Sather’s estate, sued Bank of America for the same money. The main issue of the case was whether a nonparty (Bank of America) could use issue preclusion against Bernhard (this was an example of defensive nonmutual issue preclusion). The court concluded that BofA could. But we also briefly discussed the following problem: Even if nonmutual issue preclusion is allowed, the person who is precluded must have been a party or in privity with a party in the earlier litigation. So the question arises: Why was Bernhard, in her capacity as administratrix of Sather’s estate, bound by litigation pursued by Bernhard, in her capacity as a beneficiary of Sather’s estate?

This is what Traynor himself says on this matter (p. 729-30 in the case book):

The plaintiff has brought the present action in the capacity of administratrix of the estate. In this capacity she represents the very same persons and interests that were represented in the earlier hearing on the executor's account. Inthat proceeding plaintiff and the other legatees who objected to the executor's account represented the estate of the decedent. They were seeking not a personal recovery but, like the plaintiff in the present action, as administratrix, a recovery for the benefit of the legatees and creditors of the estate, all of whom were bound by the order settling the account. The plea of res judicata is therefore available against plaintiff as a party to the former proceeding despite her formal change of capacity. 'Where a party though appearing in two suits in different capacities is in fact litigating the same right, the judgment in one estops him in the other.'

The reason that Bernhard as administratrix of Sather’s estate is bound is because, as administratrix, she is representing, among others, Bernhard in her individual capacity, insofar as she is one of the beneficiaries of Sather’s will. The situation is really similar to the following case: I sue X and lose. I then go crazy. My wife, as my guardian, sues Y concerning the same issue that was litigated in my suit against X. My wife, as my guardian, is issue precluded, because she is representing my interest.

So far so good. Now for the law on issue preclusion in cases of change of capacity. Say my wife, as my guardian, sues X and loses. Is she, in her individual capacity, issue precluded?  Consider Alexander v. Pathfinder, Inc., 91 F.3d 59, 63 (8^th Cir. 1996). The plaintiff mother took an active role in state administrative proceedings challenging the discharge of her severely retarded son from a care facility. Among other issues, she raised and litigated the argument that the discharge was undertaken in retaliation for her complaints. The administrative judgment established issue preclusion, defeating her subsequent retaliation claim in her individual capacity.

But always assuming issue preclusion when there is a switch in capacity can be problematic because of conflicts of interest. Consider, once again, the example of my wife. She would have a conflict of interest if what she litigates as my guardian would issue preclude her as an individual as well. After all, what is good for me might not be good for her. We should not require her to make the choice between her own interest and mine.

As it turns out, for precisely these reasons, there is not, in general, issue preclusion when there is a change in capacity. The only exceptions, which would explain the Alexander case, is when no conflict of interest problem exists. Here is an example from the Second Restatement of Judgments section 36:

AIn a collision between cars driven by A and B, A is injured, B is killed, and C, who is B's wife, is also injured. A brings an action for his injuries against C as administratrix of B's estate. Judgment is for A. If C subsequently sues for her own injuries, she is not precluded from relitigating the issues determined in the first action.

 39. Question about sanctions in connection with depositions

Q.
Pretty sure I know the answer to this already, but wanted to hear some background I guess: if a witness is just absolutely uncooperative in a deposition, can she be held in contempt? I'm sure the answer is no because the lawyers are not about to make a citizen's arrest in their own office! But in such a case, what options are available to the lawyers. SOMETHING must be available, or else all witnesses would just refuse to testify until trial.

A.
First of all, if a party simply fails to show up for a deposition, that party can be sanctioned under R 37(d). As for non-parties, if they fail to show up, you must make a motion to compel under R 37(a), which requires "a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make the discovery in an effort to secure the information or material without court action." If the motion is granted and ignored by the witness, this will result in sanctions under R 37(b). But what if a party or non-party witness shows up but makes frivolous objections to the questions asked? You must then make a motion to compel, again under R 37(a). If the motion is granted and ignored, then you can get sanctions under R 37(b).

40.  Question about claim preclusion for default judgments.

Q.
For res judicata, if a party defaults on a judgment does res judicata apply?  It doesn't seem like it would for issue preclusion, because that issue hasn't been fully litigated.  But I am not so sure about claim preclusion.

A.
There is claim preclusion for a default judgment (but not issue preclusion). If P sues D and gets a defualt judgment, P may not sue D again concerning the same transaction or occurence. Likewise D is bound by that judgment, so long as it stands. But D can, of course, get the judgment set aside, if he can show there was no SMJ, PJ etc. If the judgment is set aside, then neither P nor D is claim precluded.

41.   Question about claim preclusion and R. 41(b).

Q.
Is the claim preclusive effect of a default judgment governed by R 41(b)? I still can't clearly understand the relationship between claim preclusion and R41(b).