As for how the actions proceeded in the past, the defendant in the
quasi in rem action was the creditor and there had to be notice to him
(although it could be by publication) for there to be a binding
judgment against him. But in the course of the proceedings against the
defendant/creditor there also had to be an action against the debtor,
to determine that there was indeed a debt to attach. This action could
be brought by the plaintiff if the defendant/creditor did not appear
and the plaintiff would stand in the shoes of the defendant/creditor in
this suit.
Suppose a plaintiff (Arizona) brings a suit against a paper
company incorporated in Washington with all its business in
Washington. The plaintiff wants to sue the paper company in AZ
state courts regarding discriminatory hiring practices, let's say in
Washington. The only connection the paper company has with AZ is
a 500 acre parcel of land in the state with no employees or factories
on it. The plaintiff claims there is quasi-in remi PJ, is this
the case.
We thought that it failed the graph test that you composed the
other day in class, but it did have to do with real estate as Justice
Stevens had discussed as a possible exception to the Shaffer
case. Also, since there is undoubtedly some level of control the
sovereign has over the property it would seem there would be PJ.
I think essentially we were not certain on how to draw the distinction
between a corporation and an individual. Clearly there's PJ under
a Pennoyer framework as it would pertain to an individual, but it
doesn't seem that there would be if this is looked at from an
International Shoe, activity level- framework.
If the argument is that there is PJ because it is a quasi-in-rem
action, then there is really no difference if the defendant is an
individual or a corporation. The only question is how viable
quasi-in-rem actions are after Shaffer. On the one hand we might say
that they are not OK. According to Int'l Shoe, there has to be
substantial continuous contacts with the forum for PJ for causes of
action unrelated to those contacts. If the property amounts to
substantial continuous contacts with the forum, then there will be PJ,
but it won't be quasi-in-rem because the judgment will be able to be in
excess of the value of the property, since there is no such requirement
for general jurisdiction as Int'l Shoe understands it. If it doesn't
amount to substantial continuous contacts with the forum, then there
won't be PJ period.
On the other hand, we might say that the real issue is whether the
defendant can reasonably anticipate PJ as a result of his contacts with
the forum state. If so, then one might say quasi-in-rem with respect to
real property can be reasonably anticipated (although it can't with
respect to stock, as in Shaffer), provided that the judgment is limited
to the value of the property.
Q.
Hi Professor Green, just have a quick question. Why is it beneficial to
have a rule that allows a waiver of notice if P has to contact D anyway?
A.
It's not waiver of notice, since, as you note, there still is notice.
It is waiver of service of process. The reason the waiver rule exists
is because the notice that P has to provide D through the waiver method
is cheaper and easier than the providing service of porcess. The waiver
method allows for notice through the mail, whereas service requires a
process server.
Q.
What good is 28 USC 1391(a)(3) and (b)(3)? Won't cases that satisfy
this fallback venue provision still be knocked out on personal
jurisdiction grounds?
A.
First some background. 1391(a)(3) applies to actions "wherein
jurisdiction is founded only on diversity of citizenship" and allows
for venue in "a judicial district in which any defendant may be found,
if there is no district in which the action may otherwise be brought."
1391(b)(3) applies to actions "wherein jurisdiction is not founded
solely on diversity of citizenship" and allows for venue in "a judicial
district in which any defendant may be found, if there is no district
in which the action may otherwise be brought." But (b)(3)'s reference
to "found" is usually taken to mean "subject to personal jurisdiction,"
so the provisions are usually understood as equvalent.
Let's start with an example of where there is only one defendant (even
though that was not the example you were worrying about). For the
fallback provisions to apply there can be no venue in any district
through the normal two methods (under (a)(1)-(2) or (b)(1)-(2)). That
means no substantial part of the events or omissions giving rise to the
claim can occur in any district (so it must all be abroad). In
addition, the defendant cannot reside within any district (as so must
reside abroad). If the defendant resided in a district, then all the
defendants would reside in the same state (since there is only one
defendant) and so there would be venue in that district. It is worth
noting that for venue purposes an alien may be used in any district. So
there would be venue in any district
for a suit against a sole alien defendant even without the fallback
provision. But we can assume that our example is a suit against an
American residing abroad.
Now let us assume that this defendant is tagged in a state and the
action is brought in the federal district court where the tagging
occured.
There would be PJ in that state, but without the fallback venue
provision, there would be no venue in the district. The fallback
provision would allow for venue though, since the defendant is subject
to PJ in the district. So this is one example where the fallback
provision is useful.
Let us now consider a case where there are two defendants - D1 and D2.
Once again, for the fallback provisions to apply there can be no venue
in any
district through the normal two methods (under (a)(1)-(2) or
(b)(1)-(2)). That means no substantial part of the events or omissions
giving rise to the claim can occur in any district (so it must all be
abroad). In addition, the two defendants cannot reside in the same
state. Let's assume that D1 resides in California and D2 resides in
Minnesota.
This is the example that you were thinking of. Imagine that D1 is
tagged in the S.D.N.Y. That would allow for venue for the actions
against both D1 and D2 in the S.D.N.Y. on the basis of the fallback
provision. But what good would that do, you thought, since there is no
PJ over D2? Good question. But keep in mind that D2 might have been
tagged in another district in NY (the E.D.N.Y., the N.D.N.Y. or the
W.D.N.Y.). That would be sufficient for PJ over both D1 and D2, but
there would be no venue without the fallback provision. As I have said,
no substantial part of the events or omissions giving rise to the claim
occurred in any district. Furthermore the defendants do not
reside in the same state (D1 resides in California and D2 resides in
Minnesota). So the fallback provision is useful here.
A.
Good question. Let's set the question up. Say P, D1 and D2 were in a
brawl. P sues D1 and D2 for his physical damages. D1 brings a
crossclaim against D2 for his emotional damages from D2's punches
coming very close to him. This joinder is allowed under Fed. R. Civ. P.
13(g), because D1's cause of action against D2 concerns the same
transaction or occurrence as P's claim against D1 and D2 (namely the
brawl). D1 joins to this crossclaim an unrelated claim against D2.
Let's say it is for breach of contract. He is allowed to do this, not
under 13(b) (as you say) but under 18(a). The permissive counterclaim
rule (13(b)) is irrelevant because D1 is not bringing an action against
someone bringing an action against him. Rather, D1 is joining an action
against someone to an action that he is already bringing against that
person. This is allowed under Rule 18(a) even if they are unrelated.
Let's say that D2's answer to the crossclaim includes the defense of
failure to state a claim, because under the applicable law purely
emotional damages are not recognized. D1's crossclaim is dismissed for
failure to state a claim. What happens to D1's contract claim you ask?
Answer - it remains. There is no problem, as far as the joinder rules
are concerned, with that action continuing, even though that action
would not have been able to be joined against D2 if there had not
already been an action against D2 under 13(g) that concerned the same
T/O as P's suit against D1 and D2.
Of course, there must be personal jurisdiction, venue and subject
matter jurisdiction for D1's contract claim. I haven't said a word
about that!
Our discussion of counterclaims raised a question in my
mind. You discussed the potential of a plaintiff creating a bogus
claim so that the defendant would have to bring his
cause of action as a counterclaim. I understand that the
defendant could avoid this by making a pre-answer motion of failure to
state a claim. However, he could also make a motion for failure
to state a claim at any time during the suit. My question is
this: what would happen if the case was not dismissed before trial
and instead the defendant brought the counterclaim, then moved
for dismissal under failure to state a claim during the trial? If
the the original claim was dismissed, could the counterclaim stand
alone at trial, or would it be dismissed and the defendant would have
to bring it in a new suit?
Please respond at your convenience.
Another question, however, is this. Assume that the plaintiff's
action is dismissed for failure to state a claim as a result of that
defense being introduced in the defendant's answer. What if the
defendant does not want to continue with his counterclaim? Will he be
obligated to litigate it in the plaintiff's forum, on the ground that
it is a compulsory counterclaim to the plaintiff's (now dismissed)
claim?
The answer appears to be no. He may voluntarily dismiss his
action. This is what Wright & Miller section 1417 say:
"When defendant files a pleading, he automatically becomes subject
to Rule 13(a), and since the complaint technically does assert a
"claim," even if not a claim on which relief ultimately can be granted,
he should interpose his counterclaim. Thus, the cautious practitioner
will assert any compulsory counterclaim he may have in the answer. If defendant's Rule 12(b)(6) defense is
successful and he does not wish to pursue the counterclaim at that
particular time or in the forum chosen by the original plaintiff, he
then may seek a voluntary dismissal under Rule 41." (my emphasis)
A voluntary dismissal would mean that it is without prejudice and
can be brought again. It bothers me, however, that there is no argument
in Wright & Miller about why 13(a) would not bar the counterclaim
if it was brought again. They also cite no case for this. Still, it
makes sense that the defendant should not be obligated to litigate the
compulsory counterclaim in the plaintiff's forum now that the
plaintiff's action is gone.
25. Questions about counterclaims to a
quasi-in-rem action.
Q.
If P sues D in a quasi in rem action in New York and D
counter-claims, does D subject herself to in personam jurisdiction at
that point even if her appearance(s) thus far was a "limited
appearance?" It seems D has agreed to subject herself to the
discretion of the court. If so, does it matter if the
counter-claim is for more or less than the property value?
What of the following?
P -> D for $20k (property value worth $25k)
D -> P for $1k, $5k, $20k, $25k, $30k
In first case counter claim and original claim in aggregate are
less than the value of the property.
In next, they add up to the value of the property
In next, they are both individually under the value of the property
In 4th case, the counter-claim being at the value of the property
In 5th case, the counter-claim being worth more than the value of
the propery.
To me, even the simplest counter-claim seems to destroy the
"limited" nature of the appearance. But if not, is there a point
where it is destroyed?
A.
Under 13(a) the defendant is not obligated to bring a counterclaim
(even a "compulsory" one) in a quasi in rem action. (My understanding
is that this is true in state courts that allow limited appearances as
well.) But what happens if he does bring
a counterclaim?
If he does, the compulsory counterclaim rule now attaches - the
defendant is now obligated to bring all causes of action that he has
concerning the T/O that the plaintiff is suing him about.
Furthermore, for all of the compulsory counterclaims, the mere
fact that the defendant brings a counterclaim is a waiver of the
personal jurisdiction rights he previously had when making a limited
appearance. The value of the property is now irrelevant. There is PJ
for the counterclaims (by virtue of the defendant's appearance in that
forum) no matter how big or small the compulsory counterclaim is. I
believe that this answers your question.
But it may be that you were interested in the plaintiff. Is he now freed of the limitation on
his judgment due to quasi in rem jurisdiction by virtue of the
defendant bringing a counterclaim? Is the plaintiff's action now in
personam? I could not find anything on this, but my gut tells me yes
and furthermore that it does not matter how small the value of the
defendant's counterclaim is. After all, it would be pretty weird if the
defendant is forced to litigate everything about the T/O but the
plaintiff can only litigate up to the value of the attached property.
27. Choice of venue clauses in
contracts.
Q.
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.
A.
This is a great question but it is a very broad one, so I
can only say a few things about it. It used to be that choice of venue
clauses were not
considered enforceable at all. But that started changing from the 1950s
to the 1970s. The
SCt concluded that such provisions were not per se unenforceable in
Bremen
v. Zapata Off-Shore Co, 407 US 1 (1972) (see also Carnival Cruise Lines
Inc. v. Shute, 499 U.S. 585
(1991)), but it listed a number a circumstances
(which I won’t go into in detail) where they would not be enforced. One
example
is where there is no connection between the forum chosen and the
parties at all. I'm not sure from your question what the connection is
between the producer and Alaska. If there is a conncetion, it is very
likely that, under federal law, the provision would be enforceable,
provided it was really accepted by the consumer when contracting. (It
is worth noting that some states still accept the view
that these provisions are per se invalid.)
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.
Is there a procedural time limit for when P may bring ancillary
action against D to enforce judgment? How soon after judgment is
received is a case considered closed?
A.
First of all,
an action to enforce a judgment issued by a federal court is a
state-law action, even when the judgment
issued by the federal court concerned an action under federal law.
Indeed Rule 69, which allows for supplementary proceedings to
execute a
federal judgment, specifies that the applicable law for enforcement
shall be
the law of the state where the federal court is located. (In truth,
there is a
bit of federal law on the topic, for example when the
United
States government has gotten the
judgment in
its favor, but you don’t need to concern yourself with that.)
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.
...
31. Question about work-product
privilege
in Rackers-v.-Siegfried-like example.
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?
A.
In collateral estoppel the
relitigation of an issue is precluded in a case involving a different
claim from
the one where the issue was originally decided. For example, P sues D
for
negligence in connection with an accident in which P, D and X
participated. D
wins because the jury determines that P was contributorily negligent
(he was
drunk). P now sues X in negligence. This is a different claim from the
one in P’s
suit against D. But X can get a judgment in his favor because P is
precluded from
relitigating his contributory negligence.
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?
A.
Let
us assume that the statute of limitations problem is solved for the new
suit. Compare
VaSalle v. Celotex Corp., 161 Ill.App.3d 808, 113 Ill.Dec. 699, 515
N.E.2d 684
(1987)
(claim for lung cancer not barred by earlier diagnosis of asbestosis); Wilber v. Owens-Corning Fiberglas Corp., 476 N.W.2d 74, 78 (Iowa
1991) (claim
for mesothelioma did not accrue when plaintiff was diagnosed with
asbestosis)
with Joyce v. A.C. & S.,
Inc., 785 F.2d 1200, 1203-05 (4
th Cir.1986) (under
Virginia law,
diagnosis of pleural thickening triggered statute of limitations for
all
asbestos-related disease); Matthews
v.
Celotex Corp., 569 F.Supp. 1539,
1542-43
(D.N.D.1983)
(under North Dakota law, claim for lung cancer was dismissed on statute
of
limitations grounds when plaintiff was diagnosed with asbestos-related
pulmonary disease more than six years earlier).
Assuming
the action is not barred by the statute of limitations, is P claim
precluded? It
would appear that he is, since the transaction at issue in the two
suits is the
same. But this seems very unfair to P. This is particularly true if P
is not
allowed to recover for the risk of mesothelioma
in his first suit.
The
case law on this issue is unsatisfactory. Many courts have set aside
claim
preclusion in such asbestos cases. Sometimes they rely upon the very
vague section
26(f) of the Second Restatement of Judgments, which says
that splitting of claims should be allowed if:
(f)
It is clearly and convincingly shown that the policies favoring
preclusion of a
second action are overcome for an extraordinary reason, such as the
apparent
invalidity of a continuing restraint or condition having a vital
relation to
personal liberty or the failure of the prior litigation to yield a
coherent
disposition of the controversy.
See, e.g.
Sopha
v. Owens-Corning Fiberglas Corp., 601 N.W.2d 627, 637 (Wis.
1999),
Pustejovsky
v. Rapid-American Corp., 35 S.W.3d 643, 654 (Tex. 2000). But not
all courts
have accepted such an exception to claim preclusion in asbestos cases,
Gideon
v.
Johns-Manville Sales Corp. 761 F.2d 1129
(5th Cir. 1985) (under Texas law,
plaintiff
may not
split this cause of action by seeking damages for some of his injuries
in one
suit and for later-developing injuries in another), although
usually
this is because an action for risk of future harm is allowed in the
first suit.
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.
...
37. Question about privity, control of
litigation, Bernhard and change of
capacity
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 the 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 (8th
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.
38. Question about impleaders and
interpleaders.
Q.
Somewhere along the lines in my notes and outline I started using
impleader and interpleader interchangably. I was wondering if you
could clarify the difference.
A.
An impleader is when defendant brings in a new party under R 14, that
is, because the new party is or may be liable to the defendant for all
or part of the plaintiff's claim against the defendant. They include
claims for indemnification, contribution, etc. Impleaders can also be
brought by those being sued in cross-claims, counterclaims and
impleaders.
I don't think I ever mentioned an interpleader in class. That is when
someone who thinks he might be sued by a number of plaintiffs and
exposed to double or multiple liability if separate actions were
brought can bring these potential plaintiffs all together in the same
action. It solves the problem of P1 suing me claiming ownership of a
vase in my possession (with P1 winning and getting the vase), followed
by P2 suing me for ownership of the vase (with P2 winning and getting
damages worth the value of the vase). I can solve that problem by
bringing P1 and P2 together in a single suit concerning ownership of
the vase. See R 22.
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 default 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).
A.
The question of the claim preclusive effect of a default is not
governed by 41(b). First of all, a default judgment is not an
involuntary dismissal, and R 41(b) only covers involuntary dismissals.
Second, as
Semtek states,
41(b) is not about the claim preclusive effect of an involuntary
dismissal; it only covers the effect of an involuntary dismissal within
the same jurisdiction.
42. Question about state courts
deciding issues of federal law.
Q.
Just as the fed courts are merely "predicting" state law in
diversity cases (in that they don't bind the state courts) are state
cases ruling on federal questions with concurrent jurisdcition merely
"predicting" how a federal court would rule on the federal question?
A.
First of all, I assume here that you are asking whether a state
court should predict what the US SCt would do, not what a federal court
would do. This would make the situation parallel to a federal court
deciding an issue of state law, where a federal court decides as it
predicts the relevant state SCt would.
This is a great question and the answer is NO.
The reason that federal courts sitting in diversity must predict
what the relevant state supreme court would say is that there is no
avenue of appeal from the federal court system to the state supreme
court. On the other hand, there is an avenue of appeal from the state
court system to the US Supreme Court. Therefore state courts, like
lower federal courts, are bound by musty US SCt cases, even when they
know that the US SCt would now say otherwise. They may not rule as they
predict the US SCt would decide.
43. Question about special
appearances.
Q.
I have a question about special appearances. I am going back
through the text book, and I am now confused. In class we have
discussed the ability to make a special appearance to challenge
personal jurisdiction. The F&K book (p.495) appears to say that
this is not allowed, but that D can challenge PJ through a pre-answer
motion or answer.
When we refer to "special appearances" in class, are we really just
referring to filing pre-answer/answer motions to challenge PJ? Or are
we saying D personally goes to the state to argue PJ? In both state and
federal court?
A.
There are two sense of special appearances (I mentioned this
briefly in class). On the one hand a special appearance can mean only
that the D may appear and challenge PJ without submitting himself to PJ
by his very presence. Special appearances in this sense are allowed in
federal court. If special appearances in this sense are not allowed,
then the D can never challenge PJ except by defaulting and collaterally
attacking when P sues on the judgment in a different forum.
On the other hand, there is another (and more common) sense of
special appearance that refers to a situation where the D can appear
and challenge PJ, but only when he mentions PJ alone. If he conjoins
the defense of PJ with other defenses (eg failure to state a claim),
then he will have waived the defense of PJ. This is the sense in which
the term is used in F&K. Special appearances in this sense do not
exist in federal court.
44. Question about nonmutual
issue preclusion.
Q.
I know the difference b/t offensive and defensive use and the
difference b/t direct and collateral, but none of those seem to fit the
following scenario:
A, B, and C get into an accident simultaneously. A sues B claiming
that B is at fault for the accident. The trial court finds A was really
at fault for the entire accident and enters judgment for B. If C were
to then sue B claiming that B was a fault for the accident, can B then
use the judgment entered in his favor to issue-preclude C from
relitigating fault by claiming that 1st trial court found that B was
not at fault?
A.
No - issue preclusion is impossible here (unless there is some
story about why C was in privity with A). Due process demands that C
not be bound by any determination of an issue that he (or his privy)
did not participate in.
