Advanced Civil Procedure

Seeking Relief: Pre-judgment, Final, Contempt

I.
Remedies and Stakes
Before decision is made to use civil process, it must be decided what
remedies/relief can be attained through system
o Boddie v. Connecticut, 401 U.S. 371, (1971)
o Facts: Welfare recipients challenged court fees that restricted their access to divorce.
o Holding: Court fees deny good-faith divorce applicant meaningful opportunity to be
heard.
o The due process clause of the 14th amendment prohibits a state from imposing a filing
fee upon an indigent litigant seeking a judicial dissolution of marriage. Due process
requires at a minimum a meaningful opportunity to be heard
o Reasoning: State monopoly of means for legally dissolving marriage (fundamental
human relationship).
Lassiter v. Department of Social Services
Facts: Mom (Lassiter) was neglecting her son in 1975. Then she murdered someone in 1976
giving her 25 40 years in prison. Two more years pass and she doesnt contact her son. The
Department of Social Services files a petition to permanently terminate her parental rights. If this
happens she would never see her son again.
Problems with the trial: Lassiter foolishly chose not to have counsel. She didnt stop the
prosecution for submitting hearsay testimony. The cross-examination was a disaster because
Lassiter did not actually ask questions.
Defendants appeals: Lassiter claimed that she was indigent and should have had a lawyer. She
is claiming that the court violated her 14th Amendment due process right. She wants a retrial.
Holding: Lassiter is not given a retrial.

Reasoning:
There is a pre-eminent generalization that everyone has the right to an attorney. It is only
reserved for people in big trouble who risk the chance of losing personal liberty
Interest of the plaintiff: Huge! She doesnt want to have her son taken away
Interest of the government: they mostly care about time and money
Concern for whether the trial will result in an erroneous decision and obstruct rights
o efficiency
o accuracy
o fairness
Every issue needs to be evaluated on a case-by-case circumstance
There is overwhelming evidence that regardless of what Lassiter says, she didnt really care
about her son. Because of this, it wouldnt matter if she had a lawyer or not

Specifically that the private interests, government interests and the risk that the procedures in
place may provide erroneous outcomes be weighed to determine whether it would necessitate the
assistance of counsel. But the Court will weight those factors case-by-case, and in this case there
was reason to believe that Petitioner would have received little help from counsel and that there
was no damage done in her lack of counsel.
Dissent: Taking someones child is a unique kind of deprivation. Regardless of if the case would
have come out the same whether Lassiter had a judge or not, it does not mean that due process
should be denied.
Correctly used Eldridge 3-factor test
1. believed family matters are a fundamental liberty interest
2. liberty interests at stake in PT undeniably require procedural protection
3. states interest cant be greater than that of a person threatened by PT
Rule: There is no absolute right to an attorney. Every case needs to be looked at individually.
Eldridge 3 factors
1. The interests of the individual in retaining their property, and the injury threatened by the
official action
2. The risk of error through the procedures used and probable value, if any, of additional or
substitute procedural safeguards;
3. The costs and administrative burden of the additional process, and the interests of the
government in efficient adjudication
A. Provisional relief
Equitable remedies: Can be attained before any decision is made on claim (no
juries for equitable claims)
Invoked for two reasons:
o To secure a judgment (make sure plaintiff gets compensation awarded
and could put pressure on someone to settle)
o To stop someone from continuing activity or to preserve the status quo
Rule 65 (Objective of maintaining status quo)
o Preliminary Injunction
Notice to other side and hearing applies unless there is immediate
irreparable harm
In ruling on preliminary injunction, court will consider:
If injunction will harm other side
If its in best public interest
How likely P is to succeed on claims
Irreparable harm suffered by P if there isnt a preliminary
injunction
o Temporary Restraining Order
Filed at same time that preliminary injunction is filed
Has a lifespan of no more than 10 days unless it is extended
Notice and hearing applies unless P shows immediate and
irreparable injury that will occur if wait for hearing

P needs to make at least an informal attempt to notice D

Rule 64: Seizure of Person or Property (Securing Judgment)
o If there is a suit with a possible settlement but P is worried that property
will be gone by time she settles/wins suit, she can get:
o Attachment: real property is seized
Writ of attachment: written order on land that says that if someone
buys land, it is not unburdened
o Sequestration: Public official takes property to neutral location
o Garnishment: 3rd party has to turn over Ds property in his possession
(often wages)
Fuentes v. Shevins (U.S. 1972): Due Process and Seizure of Property
o P filed suit claiming deprivation of due process under 14th Amendment
after her goods (gas stove, stereo) were repossessed by sheriff when store
obtained writ of replevin, saying P hadnt made final payments. Goods
were repossessed before P received summons to answer stores complaint.
o Judgment based on private interest to P and interest of store
o Issue: Does P have right to be heard before Statue authorizes its agents to
seize property in possession of another upon request for replevin?
P had possessor interest in propertyhad paid substantial amount
for it
Notice and hearing requirements of due process apply even if
seizure is temporary (short deprivation still a deprivation) and even
if property taken is not necessary for living (stereo, stove)
When property taken under replevin, there is a high risk of error
because writ of replevin is issued on word of one party so postseizure hearing is not good enough (except in emergency such as
bank failure, wartime)

American Hospital Supply v. Hospital Products

Brief Fact Summary. Defendant, Hospital Products, Ltd., seeks to overturn a preliminary
injunction granted by the district court that forces Defendant to follow their contract with
Plaintiffs, American Hospital Supply Corp.
Synopsis of Rule of Law. When determining whether a preliminary injunction should be granted,
a court should follow the formula P x Hp > (1-P) X Hd, wherein the probability of the plaintiff
winning is multiplied by their potential hardship, and determining if it is greater than a
defendants hardship multiplied by their probability of winning.
Facts. Plaintiff and Defendant had a contract in effect for three years that required Defendant
supplier to use Plaintiff as their distributor. The contract would automatically renew each year,
and either party could terminate the agreement by notifying the other party at least 90 days
before the contract entered a new year of existence. Plaintiff contacted Defendant to ensure that
the contract would be renewed, and Defendant waited until one day after the 90-day period
expired to notify Plaintiff that they wanted to end the contract. Plaintiff was near bankruptcy and

had been reliant on Plaintiff for cash infusion prior to the termination. Plaintiff brought an action
for breach of contract and successfully obtained a preliminary injunction against Defendant to
enforce the contract.
Issue. The issue is whether the preliminary injunction granted to Plaintiff should be upheld.
Held. The court implemented a formula, P x Hp > (1-P) X Hd, that basically restated the
traditional balancing factors in a mathematical format. The court then affirmed the injunction and
supported the decision by noting the high probability of Plaintiffs success at trial and the lack of
significant hardship to Defendant versus the hardship to Plaintiff. The court still applied hardship
to the public (which was considered hardship for Defendant for the sake of the formula) and
concluded that the left side of the equation was greater (favored Plaintiffs side).
Dissent. The dissenting judge favors the traditional four-prong test for granting preliminary
injunctions (irreparable harm and no other remedy as equitable; the irreparable harm outweighs
the other party; likelihood of success; and no danger to public interest) rather than the proposed
formula.
Walgreen Co. v. Sara Creek Property Co.
Facts:
- Walgreens in mall owned by Sara Creek
- lease stipulates no other pharmacy can have lease in mall
- malls anchor tenant going out of business & Creek wants to bring in PharMor
- Walgreens sued for breach of K; asked for injunction against Creek to least to
PharMor
Rule:
- Ordinarily money; this case money not appropriate b/c its impossible to
calculate
- The burden is to show that damages are inadequate (for permanent injunction),
not that the denial of the injunction will work irreparable harm (thats for a preliminary
injunction)
Reasoning: Substituting injunction for damages is beneficial:
1. shifts burden of determining cost of Ds conduct from court to parties
2. prices & costs are more accurately determined by market than gov
2. Enforcement of equitable relief = use cts contempt power
a. Civil contempt
- to compel to do something
- used to impel the D to comply with the ct order
- imprisonment as a result; comply to stay out of jail (e.g. pay child
support)
- fine would be strange since equitable relief made money damages not
adequate
- std of proof > preponderance of evidence
b. Criminal contempt
- broke court order and willful about it
- to punish (by fine and/or imprisonment)
- serve your time
- to give court respect (not so much relief for the P)

- std of proof > beyond a reasonable doubt

3. Money damages
1) nominal
- represent a token amount simply to signify the recognition that harm was
done but where injury cant be proven
*Provisional relief in Carpenter case:
o A TRO and preliminary injunction so Randall Dee cant sell house
o Preliminary injunction ordering Jeep not to be altered
o A sequestration of Jeep to put it under supervision of third party
*Provisional relief in Cleveland case
o preliminary injunction to stop hiring process
B. Final Relief
Granted after decision is made on claim
These can be either equitable or legal remedies (there are juries to determine
legal remedies)
Equitable final relief
o Granted when money damages wont be enough to compensate for losses
o Permanent injunction
o Declarative relief: parties have declaration of their rights
Legal Relief
o Monetary damages
Punitive
Compensatory
Nominal: (unusual) when someones rights have been violated but
they have not suffered any right that can have monetary value
attached to it
*Final Relief in Carpenter case:
o Compensatory damages
lost income, lost household services, etc.
o Punitive damages
Must show recklessness, willful or wanton misconduct
o Judgment proof defendant:
D doesnt have any money or assets so P cant get damages from
him
*Final relief in Cleveland case:
o Final equitable relief
If final goal is a permanent injunction to restructure hiring process,
Ps must show that there is no adequate legal remedy (money
damages not enough for the Ds)
o Compensatory
back pay
C. Contempt: When a party or lawyer disobeys a court order

A party or lawyer can be held in contempt if he violates a court order or rule

Parties sometime deliberately disobey a statue in order to protest/challenge a
rule they deem to be unjust
Collateral Bar Rule (Enforced in Walker v. Birmingham)
o Procedural rule requiring obedience to a court order even if it is later
found to be unconstitutional
o You cannot disobey a court order and then raise unconstitutionality of the
order as a defense. Instead, you must try to directly challenge order first
o Rule does not apply if court that issues injunction does not have
jurisdiction over the parties or if injunction is so obviously invalid on its
face
o In enforcing collateral bar rule, was Supreme Court collaborating with
injustice in Walker v. Birmingham?
o When is the collateral bar rule applied?
o How can someone challenge injunction without running into collateral bar
rule?

A. Provisional relief = prejudgment reliefs = securing the judgment (tying up Ds property)

1. Rule 64(b)
a. arrest
- to keep the D from running away
b. attachment
- seizing of persons property to secure a judgment or to be sold in
satisfaction of a judgment (e.g. lien on property)
c. replevin
- action for repossession of property wrongfully taken by D
- P holds property until ct decides who owns it
d. sequestration
- so it doesnt go anywhere (e.g. a boat)
- property is removed from possessor
Advantages: - assures Ds resources will be there to collect if P wins
- tying up assets puts pressure on D to settle
e. garnishment
- take money (e.g. wages, stimulus payment, bank accounts)
- third party involvement
f. others
2. Rule 65(a) = Preliminary injunction
- court directs a party to halt specific conduct or perform specified acts
immediately
- before ct reaches merits of case
- requires notice to party
- lasts for entire duration of case; becomes part of case
- if extended, turns into permanent injunction
3. Cts test to determine provisional relief (preliminary injunction)

whether $ damages would provide inadequate relief for P if wins; money wont help
irreparable harm will occur if not granted
likelihood P will prevail on merits (most important factor)
scope & irreparability of harm D will suffer if relief is wrongly granted
extent to which granting an injunction would harm public interest
4. Rule 65(b) = TRO
- maintaining the status quo
- ex parte decision; does not require notice
- irreparable harm must be argued; something bad is going to happen if the court
doesnt issue the restraining order (e.g. bodily harm, child custody, foreclosure)
- immediate protection while wait for hearing on preliminary injunction
- 10 days with extension > can turn into preliminary then permanent
- e.g. butcher across my property line; he might kill it; so TRO
B. Final relief
1. Equitable relief
- only granted when money damages would not be adequate
- equitable relief awarded by judge; money damages usu. awarded by jury
a. Rule 57 = Declaratory judgment
- cts clarification of the law as applied to the undisputed facts presented
by litigants
- issues an opinion declaring rights of parties involved
b. Rule = Consent decrees
- parties decide on a solution, the ct monitors agreement, and can be
dissolved by motion or sunset
- e.g. prison litigation > not giving dental to prisoners
- some ongoing for as long as 30 years; have to do it piece by piece
- can arise out of violations of Constitutional rights, which supercede even
legislation
c. Rule 65 = Permanent injunction
whether $ damages would provide inadequate relief
whether P has shown risk of irreparable injury
scope & irreparability of harm D will suffer if relief is wrongly granted
extent to which granting an injunction would harm public interest
- inquiry leading to it doesnt involve predicting likelihood of Ps success on merits b/c
merits already decide; injunction granted on hearing on the merits
Carey v. Piphus (1978)
Facts:
- students suspended for violating school rules
- not given due process prior to suspension
42 U.S.C. 1983: a person who deprives someone of his rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured in an action at law
Rule:
- nominal damages are most that can be awarded in the absence of proof of injury
- must prove actual injury from denial of due process in order to obtain
remedy

Ruling:

- in order to receive punitive damages, the students needed to show that the
officials acted with malicious intent
- mental & emotional distress are covered under 1983, but w/o actually proving
injury, it cant be assumed that the injury is so great
Due process wasnt given, but damages werent proved, so heres $1
2) compensatory
- seek to return P to position enjoyed before the harm
- e.g. medical bills, pain & suffering, loss of wages, fix property that was
damaged
Ex: Carpenter
3) punitive
- further monetary relief seems appropriate to deter future wrongful
conduct and to express public disapproval of injuring behavior
*Guideposts to clarify what constitutes unconstitutional excessiveness in
punitive damage awards:
1- how reprehensible is the Ds conduct?
2- ratio of the award to actual or potential harm inflicted
3- a comparison of the award to civil or criminal penalties that could be
imposed for comparable misconduct
Ex: Carpenter
Enforcement of money damages:
1. Secure a judgment
2. Docket it with the clerks office

C. Settlement
- a legally enforceable agreement, usually involving a payment from D to P, in which P
agrees not to pursue the claim further
E. Contempt
you can violate an ordinance but not an order
you can violate the statute or ordinance but NOT when the ct orders you not to
Walker v. City of Birmingham (1967)
Facts:
- violated injunction at march
Collateral Bar Rule = when violating a cts contempt order, youre barred from challenging
underlying statute
Finality and Preclusion
II.
Claim Preclusion/res judicata
Claim Preclusion prohibits P from splitting up claims that arise from common
nucleus of operative fact
Elements:
o (1) Final and valid judgment on the merits
o (2) Second lawsuit arises out of same claim as first lawsuit
o (3) Parties are the same or are in privity

Policy:
o To avoid wasting judicial resources
o So D doesnt have to defend case again
o So P cannot file same claim until she finds a sympathetic jury
o To avoid inconsistent results
If claims involve different transactions, P doesnt have to join claims (trying
cases separately would not repetition of same facts and evidence)
Claim preclusion usually results in summary judgment
Two moments in course of lawsuit to keep claim preclusion in mind:
o When constructing complaint: Need to make sure to include all issues that
raise out of one claim to avoid preclusion later on
o If theres a second lawsuit filed: Ds lawyer has to be aware of claim
preclusion to raise it as a defense
Final and valid judgment on the merits
o Dismissal for lack of jurisdiction, improper venue, non joinder, misjoinder
is not. Dismissal with prejudice is. (Rule 41(b))
o Other judgments, such as motion to dismiss for failure to state a claim
with prejudice, SJ, will be judgments that have preclusive effect
Second lawsuit arises out of same claim as first lawsuit:
o Fundamental question, has the party had the opportunity for their day in
court, to argue the merits of the case?
o Factors to consider when determining whether lawsuit arises out of same
claim as first
Natural grouping of common nucleus of operative facts
(considering time, space, origin, motivation, whether they form a
convenient trial unit)
o When P comes upon new evidence:
Rule 60 gives the court power to relieve a party of a judgment on a
number of grounds; one of these is new evidence. It is at judges
discretion and you probably wont win if judge finds that you
should have originally found the evidence. There is also a 1 year
time limit.
o Car Carriers, Inc. v. Ford Motor Company (F.2d, 7th Cir. 1989)
Asserts that transaction, not legal claim or theory, matters when
determining claim preclusion (common nucleus of operative facts
idea)
When new facts are found, court has right to presume that it P has
done his legal and factual homework, couldve taken advantage of
amendment rules
FRCP are designed to allow these claims to be brought together
(joinder +13) so claim preclusion provides motivation to join them
o Heacock v. Heacock (SJC 1998)
Divorce action where Mrs. Heacock makes claims of violence Mr.
Heacock asserted against her in support of reasons for divorce

Following divorce, Mrs. Heacock begins tort action for abuse

When original jurisdiction did not have jurisdiction to hear a
subsequent claim, claim is not precluded.

Taylor v Sturgell, two dif parties litigated the same issue & were represented by the same
attorney
The court held that such nonparty preclusion runs up against the deep-rooted historic tradition
that everyone should have his own day in court.
Virtual representation should only be applied rarely and under certain exceptions to the general
rule, none of which the Court found applicable in this case.
Preclusive effect of prior ct judgment is based on federal common law dont look to state law
to see if this is allowed
Adequate representation interest of a nonparty and representative must be aligned -ex:
homeowners association could be litigating for or against homeowners
Rule against nonparty preclusion is subject to the following exceptions (c.e is justified
when:) (take a categorical approach)
1. A person who agrees to be bound by the determination of issues in an action between
others is bound in accordance with the terms of his agreement (non party can agree to be
bound by prior decision)
2. Justified based on a variety of pre-existing substantive legal relationships between the
person to be bound and a party to the judgment (certain relationships where it makes
sense to bind a nonparty to a prior judgment like in property cases)
3. In certain limited circumstances, a nonparty may be bound by a judgment because she
was adequately represented by someone with the same interests who was a party to the
suit (nonparty was adequately represented by a party with the same interests in the prior
lawsuit; ex: class action)
4. Bound if she assumed control over the litigation in which the judgment was rendered (not
a formal party in the litigation but the nonparty controls the prior proceeding)
5. A party bound by a judgment may not avoid its preclusive force by relitigating through a
proxy. Preclusion is thus in order when a person who did not participate in a litigation
later brings suit as the designated representative of a person who was a party to the prior
adjudication.
6. In certain circumstances a special statutory scheme may expressly foreclose successive
litigation by nonlitigants if the scheme is otherwise consistent with due process. (ex:
bankruptcy & probate proceedings)
Simplified
(1) A nonparty may agree to be bound by a judgment
(2) Privity may justify preclusion of a nonparty
(3) Nonparty interests represented by party: class actions, trustees, guardians
(4) Nonparty whos assumed control over lawsuit
(5) Nonparty litigated suit via proxy to avoid preclusion
(6) Special statutory schemes: bankruptcy, other suits brought on behalf of public
Consider: A partys representation of a nonparty is adequate for preclusion purposes only if, at a
minimum:

1) the interests of the nonparty and her representative are aligned

2) either the party understood herself to be acting in a representative capacity or the original
court took care to protect the interests of the nonparty. Adequate representation sometimes
requires
3) notice of the original suit to the persons alleged to have been represented
Reject a broad doctrine of virtual representation & an all-things-considered balancing approach
b/c:
Decisions emphasize the fundamental nature of the general rule that a litigant is not bound by a
judgment to which she was not a party.
Rejection rests on the limitations attending nonparty preclusion based on adequate representation
Would likely create more headaches than it relieves. It could significantly complicate the task
courts face with preclusion questions. An all-things-considered balancing approach might spark
wide-ranging, time-consuming, and expensive discovery tracking factors potentially relevant
under tests. And after the relevant facts are established, judges would be called upon to evaluate
them under a standard that provides no firm guidance.
CA follows the Restatement approach to collateral estoppel.
When an issue of fact or law is actually litigated and determined by a valid and final judgment,
and the determination is essential to the judgment, the determination is conclusive in a
subsequent action between the parties, whether on the same or a different claim.
Note, claim preclusion (res judicata) is the whole ball of wax whereas collateral estoppel (issue
preclusion) is just a part of the claim.
Ex. battery is a claim; issues are intentional touching? intention of harm

Parties are the same, or in privity:

o Privity some sort of relationship that makes it appropriate to conclude
that that party has already had its day in court. Family relationship is not
enough to imply privity
o Gonzalez v. Banco Central Corp. (1st Cir., 1994)
Facts: Bank selling swampland in Fl. to people in Puerto Rico for
development. Rodriguez Ps file action first. Gonzalez Ps try to
join claim later and are refused. Ps ultimately lose. Gonzalez Ps
file lawsuit against same Ds, allegations are similar as Rodriguez
Ps Ds claim that claim should be dismissed because of privity
Court: There was the same claim (arose common nucleus of
operative facts) but parties were not in privity.
Court says that caution is needed when determining prvity so no
one is denied their day in court (person against him preclusion is
asserted because of privity should have already had day in court)
Privity based on Substantial Control or Virtual Representation:
Substantial Control: P had opportunity to call the shots in
prior litigation (make strategic decisions) so that other party
essentially had day in court. Must be from practical, not
theoretical standpoint.
Virtual Representation: Equitable theory, determined on case
by case basis.
(1) Identity of interest

III.

(2) Must have actual or constructive notice of the earlier

litigation.
(3) Must have some kind of relationship of accountability.
(Trustee/Beneficiary, Corporate officers, Some familial
relationships, such as in
bankruptcy proceedings)
Issue Preclusion (Collateral Estoppel)
Collateral estoppel/issue preclusion: Once issue has been adjudicated between
two adverse parties, that issue cannot be relitigated in another suit between
same parties
Elements:
o Are the issues the same?
Analogous to transaction/occurrence
o Was issue actually litigated?
o Did litigation go to final judgment?
o Was issue on which preclusion was sought essential to final judgment?
Issue preclusion can be invoked even if one of the parties wasnt bound by
prior litigation
Mutuality
o Federal and states have body of common law with respect to preclusion,
so issue of whether mutuality is required is matter of state law.
o Trend is that mutuality is not required (including in federal court)

Issue preclusion usually results in partial summary judgment

Policy: Efficiency, consistency
David P. Hoult v. Jennifer Hoult (1998)
o Father convicted of sexually abusing his daughter. Her father later sues
her for defamation because she reported rape. Daughter argues that issue
preclusion should apply, saying that he cannot say that he did not rape her
when jury implicitly found that he did.
o Issue: Should issue preclusion apply when there was no explicit finding
that the father raped his daughter?
o Court: Issue preclusion can still apply if finding in first suit was central to
the finding. (Central is party could have prevailed or lost because of the
outcome of that issue)
o Can be determined by evidence, testimony
Jarosz v. Palmer (Mass. 2002)
o Business relationship where former partner sues lawyer that the company
used claiming breach of attorney-client privilege
o Court says that issue preclusion does not apply because issue wasnt
essential to underlying claim of original litigation on which judgment was
entered
o Policy of requiring it to be central to judgment: May not have been fully
litigated, may not have received full attention of court, etc.
Parklane Hoisery Co. v. Shore (U.S. 1979)

o Deals with non-mutual, offensive issue preclusion: Can a litigant who was
not a party to a prior judgment use the previous judgment offensively to
prevent D from re-litigating issues resolved in earlier proceeding?
o First action was seeking injunction decided by a bench trial. Second
action was a damages action, so there was a right to a jury trial
o Issues:
Can preclusion be used when Parklane would be prevented from
having jury trial with respect to 7th amendment?
Mutuality: P wasnt involved in first lawsuit, but is trying to use
issue preclusion against D who had issue decided against him in
prior action. Should offensive use of issue preclusion be allowed?
o Offensive vs. Defensive issue preclusion:
Supreme Court has already held that mutuality not needed for
defensive use of issue preclusion, as decided in Blonder-Tongue,
but court should still be conscious of unfairness
Defensive can be routinely invoked without there being problems
with denying anyone day in court
Court is hesitant to allow offensive, non-mutual issue preclusion
Problems with offensive:
Wait and see problem: Would result in more litigation, as Ps
would be able to wait and see what happens in earlier litigation
because success of one P in earlier litigation would allow later
Ps to piggyback off of decisions
Unfairness to Ds: There might be a lack of incentive to
vigorously defend claim in earlier litigation; there might be
more expansive discovery opportunities in second litigation
o In these cases, there is a tension between desire for efficiency and finality
and respect for jury
o Rehnquists dissent:
Says that it is unfair to apply doctrine of collateral estoppel where
party who is sought to be estopped has not had an opportunity to have
facts determined by a jury
Focused on 7th amendment right to a jury
o Approaching non-mutual issue preclusion problems:
Is action a defensive or offensive one?
If offensive trial judge should use discretion, asking:
Would offensive be motivated by wait and see P?
Could P have easily joined in first lawsuit?
Would use of preclusion be unfair to Ds, considering additional
procedural opportunities, lack of incentive in first action?
Inter-jurisdictional Preclusion
o Preclusion can operate between state and federal court, between criminal
and civil, between state courts
o State to State:

Full Faith and Credit Clause Art. IV, Section 1

A subsequent court must ask itself what preclusive effect the
judgment would have in the state where the judgment was
originally had.
o State to Federal:
Congress enacted statute that does same thing as the above FF&C
clause does to states section 1738.
Federal court must ask the same thing as the state court.
o Federal to State:
Art. IV, Section 1738 dont apply. This is an area where federal
common law controls.
Supreme Court developed rule as to what effect federal courts
rulings preclusive effect is. It depends on whether it is federal
question or diversity.
Claim and Issue Preclusion Problems
o *A and B have a contract. B agrees, every June, to clear timber on part of
As land. Contract is for five years. B performs in first year. Second year,
he doesnt perform A sues for breach of contract. B says that at time
contract was made, he was a minor and therefore couldnt enter into
contract. Court says B was old enough to enter into enforceable contact
judgment for A. Next year, B fails to perform again. A sues again and B
raises same defense of minority. Does A have to relitigate this issue?
Resolution of decision was central to first judgment A can say that
issue need not be re-litigated.
o Ms. Podros was driving Jeep and she makes a left turn, rolling onto
Warrens car. Warren finds out Podros illegally altered car, that Lowell
police officers had stopped her and released her for driving under the
influence. Podros was already found guilty of modifying her Jeep.
Warren files personal injury action in federal court against Podros, Lowell
police officers who stopped her, ultimate auto, and city of auto. Is there
any ground to say that Warren is collaterally estopped from litigating this
issue?
This is offensive, non-mutual issue preclusion
Is there a wait and see P problem?
Nohe couldnt have been party to first suit
Is there any unfairness to Do in asserting non-mutual issue preclusion?
State met its higher burden in criminal case, so there is no
problem with that in allowing issue preclusion
Perhaps D didnt litigate claim as furtively as possible
o 1. No claim preclusion because different transaction.
New facts that gave rise to new claim.
Other finality doctrines that might apply even though 2nd claim
wouldnt be precluded?
Issue preclusion might apply

Stare Decis (if legal ruling about what law meant), precedent
would apply in second case)
o 2. City of Cleveland Ps lost sex discrimination lawsuit. Can they bring a
second lawsuit alleging race discrimination?
Claims came out of same nucleus of operative facts, selection
process they are claiming about is same. Parties are same. Race
discrimination claim could have and should have brought action in
first they cannot bring second action
o 3. Ms. Burrell (owner of Jeep) files lawsuit against Randall Dee for
property damage against Jeep and recovers for $2000which is the
maximum that can be recovered in small claims court. Three months later,
she files in Superior Court for more substantial damages for physical
injuries.
She had choice where to file first claim she shouldve brought in
both claims in superior court
o 4. Carpenter filed in superior court against Lowell for failure of police
officers to warn of modifications. Case dismissed because of statute that
says that municipalities cannot be sued because not responsible for its
employees. File judgment, no appeal. Later, statute overruled saying
municipalities could be sued. Can she sue again?
No. There was a final judgment on the merits. It was decided
under law at the time.
Rule 60(b): provides for relief from judgment under range of
circumstances because of newly discovered evidence, among other
reasons

If you got precluded, you cant jump into someone elses claim to get around it
(Federated Dept. Stores v. Moitie, p. 1124)
1. Better to stick around and appeal something than start the claim over in a different
court
which will use the preclusion
Federal courts must comply with state determinations of preclusion (Allen v. McCurry, p.
1192; Semtek v. Lockheed Martin, p. 1198)
1. Federal courts cant be more preclusive than their state courts
2. Look at how state court treats statute of limitations preclusions (Semtek)
Class Actions
I.

CLASS ACTIONS
A. CLASS CERTIFICATION
a. Rule 23: Class Action
1. Requires PJ, SMJ, and venue like any other case
2. 2005 Amendments: federal juris. will exist when there is minimal
diversity and when the total amount of the class members claims
exceeds $5 million
3. 23(a) factors for certification:

a. NUMEROSITY: class must be so numerous that joinder of

all members is impracticable (usually ~100 is the cut-off)
b. COMMONALITY: questions of law or fact common to the
class (the rule requires common question, not the absence
of individual ones!)
c. TYPICALITY: the claims or defenses of the representative
parties are typical of the claims or defenses of the class
d. ADEQUACY OF REPRESENTATION: the representative
parties will fairly and adequately protect the interests of the
class, AND the attorney is qualified
4. 23(b) - type of class
a. (b)(2) does not extend to cases in which the appropriate
final relief relates exclusively or predominantly to money
damages (injunctive relief only!)
b. (b)(3) questions of law or fact predominate over other
claims AND class action is most efficient method of
adjudicating the claims
i. Requires notice to all other members of the class
and the ability to opt-out
ii. Four factors to consider in certifying a (b)(3) class:
1. Interest of the members of the class in
individually controlling the litigation of
separate actions
2. Extent and nature of any litigation already
commenced by or against any members of
the class
3. The desirability or undesirability of
concentrating the litigation of the claims in
the particular forum
4. The difficulties likely to be encountered in
the management of a class action
b. Why have class action?
1. Reasons to have class action:
a. Individual damages not big enough for any single to
bring suit, but there is still a public interest in deterring the
harm from continuing
b. Consistency - lots of small similar claims should be
decided the same
c. Efficiency
2. Reasons NOT to have class action:
a. Must more costly than regular litigation
b. s in the class are risking res judicata w/o control over
litigation
c. Is it really fair for so many s to gang up on ?
d. Extremely complex and burdensome cases

e. It changes the incentives of the existing law (whats at stake

becomes much greater financially)
c. Communities for Equity v. Michigan High School Athletic Assn.
1. The class member who wishes to remain a victim of unlawful
conduct does NOT have a legally cognizable conflict with the class
representative
2. Class-based discrimination (where the remedy sought is
injunction) is usually a 23(b)(2) class
d. Causey v. Pan American World Airways, Inc.: A mass accident
resulting in injuries to numerous persons is usually NOT appropriate for
class certification. A class action CAN be maintained when:
1. The class action is limited to the issue of liability (there is usually
ONE cause of such a mass accident and no use in litigating it over
and over)
2. The class members support the action
3. The choice of law problems are minimized by the accident
occurring and/or substantially all s residing within the same
jurisdiction
B. CONSTITUTIONAL CONSIDERATIONS
a. Hansberry v. Lee
1. Members represented in a class action are bound by the decision
(res judicata)
2. One is NOT bound by a judgment in personam in litigation in
which he is not designated as a party or to which he has not been
made a party by service of process, or when the representation is
NOT ADEQUATE
3. Absent class members may collaterally attack the adequacy of
representation they received in a prior class suit (usually doesnt
succeed, though!)
b. Phillips Petroleum v. Shutts
1. A class action, once certified, may NOT be dismissed or
compromised without the approval of the court
2. A forum State CAN exercise juris. over the claim of an absent
class-action , even though that may not possess the minimum
contacts with the State, IF:
a. The must receive notice and an opportunity to be heard
and participate in the litigation, whether it be in person or
through counsel
b. The notice must be the best practicable, reasonably
calculated to appraise parties of the pendency of the action
and afford them an opportunity to present objections
c. The notice should describe the action and the s rights in
it
d. At a minimum, an absent must be provided with an
opportunity to remove himself from the class (opt-out or
request for exclusion)

e. The named at all times must adequately represent the

interests of the absent class members
So we have Phillips Petroleum. Phillips spews forth oil. The leaseholds are owned by
individuals such as Shutts. Phillips is trying to screw the little guys by paying them royalties on
prices that are too low. Shutts wants to recover interest on the money that was withheld. There
are 33,000 people in Shuttss position who get together to sue for the interest the oil company
owes. Shutts sues in Kansas. None of these people have much interest. Each of them has a
small amount of interest in their interest. This is a perfect example of class litigation bringing
together small claims that are too small to litigate individually. Shutts provides the best possible
notice. He sends out a letter to all of the class members telling them they can opt-out if they
want. 28,100 are in, 3,400 opt out, and 1,500 were not found and excluded. Less than 1,000 of
the plaintiffs are actually in Kansas, and a negligible part of the oil and gas leases are in Kansas.
Phillips makes a personal jurisdiction argument that only the Kansas plaintiffs can sue. Phillips
argues that there has to be an opt-in procedure.
Justice Rehnquist says we dont need opt-in. Why? The issues of personal jurisdiction are not
the same when you talk about a class of out-of-state plaintiffs than when you talk about out-ofstate defendants. When youre a class-action plaintiff, the state may exercise jurisdiction over
the claim of an absent class-plaintiff, even though that plaintiff may not have minimum contacts.
But the minimal requirements of due process must be met: there must be notice plus the
opportunity to be heard and the ability to opt out. This later gets built in to Rule 23. The due
process clause is not violated as to the absent Plaintiffs and if the court wants to bind an absent
Plaintiff concerning a claim for money damages it must provide minimal procedural due process
protection. Absent Plaintiffs must receive notice and be given an opportunity to be heard. In this
situation, the absent class members did have that opportunity. An opt in provision would
impede the class action and would require revisions of many lawsuits.
Erie Doctrine
IV.

Erie Doctrine
In federal diversity cases, there is a question of whether state or federal law
applies
Vertical choice: between state and federal
Horizontal choice: deciding which state law to apply
Federal question cases: Easy to decide what law to apply because Article 6th
(supremacy clause of
Constitution) makes it clear that even state courts
have to apply federal law
Diversity Cases: What law does fed. court apply to decide diversity cases?
Erie Railroad Co. v. Tomkins (U.S. 1938)
o Facts and Procedure: P was walking along pathway along railroad when
freight train operated by Erie Railroad Co came by and hit him (open door
or something). P filed suit in federal court for southern New York because
Erie was incorporated in that state
o If state law applied, P might not be able to recover because of PA
trespassing law

o Issue: Whether the federal court was free to disregard the alleged rule of
Penn. common law
o Rules of Decision Act: Laws of several states shall be regarded as rules of
decision in courts of US in cases where they apply unless Constitution,
treaties, or statutes of U.S. say otherwise.
o Swift v. Tyson was precedent before this.
Interpreted Rules of Decision act to mean that only laws and not
judicial decisions applied Courts exercising jurisdiction on
ground of diversity of citizenship need not apply unwritten state
law as declared by the highest court and that federal courts could
decide what law is
Goal was to create uniform general law in federal court
This allowed corporations to avail itself to federal law by
reincorporating in another state and generally introduced
discrimination to in state Ds, promoted forum shopping
This conflicted with Constitutional rights of states to apply its law
except in matters governed by federal Constitution or Acts of
Congress. Constitution doesnt give power to Congress to institute
general tort laws or general contract law if not given to
Congress, also not given to federal courts.
o Holding: Except in matters governed by constitution or acts of congress,
the law to be applied in any case is the law of the state. Any source of law,
whether by statute or common law, is state law. There is no general federal
common law. Congress has no power to declare substantive rules of
common law applicable in a state whether they be local or general, be they
commercial law or a part of the law of torts. And no clause in the
constitution purports to confer such a power upon federal courts.
o Twin aims of Erie: Prevent forum shopping and inequitable distribution
of the law (by alleviating unfairness to instate Ps and Ds)
o Erie was decided in the same year that the FRCP were enacted. This
resulted in conflict between state rule and FRCP
o How should a court decide if State Supreme Court hasnt decided on an
issue (trespassing, for example)?
Federal court has to predict how the state court would resolve an
ambiguity in state law, using trial and appellate court decisions,
relevant case law from other jurisdictions, etc.
Issue is how aggressive federal court should be in anticipating
where state law is going

Guaranty Trust Co. v. York (U.S. 1945)

o Considers whether federal court is required to apply the state statute of
limitations or the federal practice called laches, a flexible doctrine of
limitations
o Says point of Erie was to ensure that in cases where federal court is
exercising jurisdiction based on diversity of citizenship, outcome of

litigation should be same as far as legal rules determine outcome if it were

tried in State court
o Outcome Determination Test: If disregarding state rule would
significantly affect outcome of federal court, state law should be applied
(test determines if state law is rule of decision or just procedure)
o Court says consequences are what is important and not distinction between
substance and procedure

Byrd v. Blue Ridge Rural Electric Cooperative, Inc. (U.S. 1956)

o Considers whether Outcome Determination test alone is an adequate test
in application of Erie
o Issue: Should question of fact be sent to jury or should it be decided based
on SC state statute that says judge should decide it.
o York would say that state law should apply because state law would/could
result in different result if state law applies
o Court says if outcome were only determination state rule may apply.
However, when there are countervailing considerations, a public
interest in a federal system of allocating functions between judge and
jury, then a state rule not bound up with rights and obligations (not
substantive)can not always be followed.
o Court says furthermore, if outcome test is done, its not conclusive this
case stands for the proposition that outcome determination test is not alone
enough to decide these cases

Hanna v. Plumer (U.S. 1965)

o This case represents the current understanding of how the Erie Doctrine
works
o Facts and Procedure: Auto accident involving Ohio woman and
Massachusetts man. Person who caused accident died so D is executor of
estate. MA statute governs service of process against executors and FRCP
governs service in federal court
o D says that P shouldve complied with MA statute (P followed federal
procedures)
o If state rule applicable, suit should be dismissed since P didnt comply. If
federal rule applicable, suit should go on.
o Rules Enabling Act (1934) Supreme Court shall have power to
prescribe, by general rules, the forms of process, writs, pleadings, and
motions and the practice and procedure of district courts of US in civil
actions Such rules shall not abridge, enlarge, or modify any substantive
right and shall preserve the right of trial by jury
o Holding: When there is a conflict between state law and FRCP, if FRCP
does not go beyond Constitutional powers or Congressional powers of
Constitution (Rules Enabling Act), FRCP is good law and trumps state law
o Goes beyond Constitution if rule is too substantive and in an area of policy
that is not governed by Constitution under Article 10

o Decision is important in that it maintains uniformity of FRCP, preserved

rationale of Erie, and protects FRCP from being eaten up by outcome
determination test of York

Erie doctrine cases in general:

o Erie says that in diversity cases, courts apply federal procedural rules and
state substantive rules
o York says that rules of decision are determined by Outcome Determination
Test. This would eventually corrode FRCP because, at some point,
different rule is going to give different result
o Byrd and Hanna try to protect FRCP when there is a collision between
state rule and FRCP
o Byrd is relevant in how it was used in Gasparaniaccomodating state
law interests while applying federal rule
o Walker applies outcome determination test in light of twin aims of Erie,
referred to in Hanna

How to do Erie Problems:

o First identify the source of the federal practice: (FRCP, Judicial Code
Provision, Judge made common law or practice, or a federal practice
essential to character of federal litigation)
o Is there a direct collision between FRCP and the state statute/law? (no
if they can coexist)
Yes Is the FRCP valid under the Rules Enabling Act and the
Constitution?
Constitution: Are the rules characterized as procedural? (i.e.
has Constitution given federal government the power to enact
the kind of rule that is being evaluated. Congress has given
power to court to do this)
Rules Enabling Act: It does not abridge, enlarge, or modify a
substantive right.
Yes use FRCP over statute
No The collision is between federal judicial practice or common
law and state law and an Erie-esque analysis applies. The state law
applies if:
Use of federal law would be outcome determinative at any
point in the litigation.
It is outcome determinative if at least one of the twin aims of
Erie is implemented (forum shopping and inequitable
distribution of the law)
o Should also do modified outcome determinative test when conflict is
within a federal practice essential to character of federal litigation
(countervailing considerations of Byrd)