Frcp Deck Ii

Front 1

Rule 20 (part 1)

Back 1

Rule 20:[permissive rule] permissive joinder of parties.
(1) Plaintiffs. Persons may join in one action as plaintiffs if:
(A) they assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and
(B) any question of law or fact common to all plaintiffs will arise in the action.

Front 2

Rule 20 (part 2)

Back 2

(2) Defendants. Persons—as well as a vessel, cargo, or other property subject to admiralty process in rem—may be joined in one action as defendants if:
(A) any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and
(B) any question of law or fact common to all defendants will arise in the action.

Front 3

Mosley V. General Motors (Facts)

Back 3

P and 9 others joined in bringing individual and class actions against the D for violation of their rights under 42 U.S.C due to their color and race i.e., discriminating against negroes on the basis of color and race. Question of joinder was only to be reversed only upon showing abuse of discretion. The word TRANSACTION IS TO BE GIVEN A FLEXIBLE MEANING and importance as to logical relations of transactions must be given rather than their immediateness.

Front 4

Mosley v. General Motors (2 elements)

Back 4

• Just like in U.S. v. Mississippi, the state wide system designed to enforce registration laws gave rise to occurrences out of common transaction, similarly, in this case, the company wide system designed to discriminate against the blacks arises out of same transaction and occurrences. Thus 1st element of rule 20 (a) is satisfied.
• The 2nd element of rule 20(a) requires only some common question of fact or law to all parties to arise. It does not require all common questions to be present. The discriminatory practice of the company was the common question here irrespective of the different effect it may have had on people. Thus 2nd element also satisfied.
Note: The issue of joinder in this case was considered important by both the courts and therefore, both permitted interlocutory appeal.

Front 5

Rule 14 (a)

Back 5

Rule 14 (a): when defending party may bring in a third party
(1) A defending party may AS A 3RD PARTY PLAINTIFF, serve summons and compliant on a nonparty WHO IS OR MAY BE LIABLE FOR ALL OR PART OF THE CLAIM AGAINST it.
It may be filed:
• As a matter of course within 14 days of serving the original answer OR
• By leave of the court by a motion if it’s after 14 days of filing the original answer.

Front 6

2 foundations for the concept of IMPLEADER:

Back 6

- Contribution (that the 3rd party D is in some way liable for the act of the D, wholly or in part.) and
- Indemnity (that the liability 3rd party plaintiff is without fault)
NOTE: even though it may arise out of the same general set of facts as the main claim, 3rd party claim will not be permitted when it is based on a separate and independent claim. The 3rd party liability must in some way be derivative of the original claim. Derivative liability is the essence of doctrine of impleader.

Front 7

Rule 14 (a) (2): the 3rd party D:

Back 7

A. MUST assert any defense against 3rd party plaintiff’s claim under rule 12
B. MUST assert any counterclaim against 3rd party plaintiff under rule 13 (a); and MAY ASSERT any counterclaim under rule 13 (b) and any crossclaim against 3rd party plaintiff under rule 13 (g).
C. MAY assert any defense that the 3rd party plaintiff has to plaintiff’s claim
D. MAY also assert against the plaintiff any claim arising out the transaction or occurrence that is the subject matter of plaintiff’s claim against the 3rd party plaintiff. [Note: this is not a counterclaim.]

Front 8

Rule 14 a (3): PLAINTIFF AGAINST 3RD PARTY D

Back 8

The plaintiff MAY assert a claim against the 3rd party defendant that arises from the transaction or occurrence which is the subject matter of plaintiff’s complaint against the 3rd party plaintiff.
The 3rd party defendant MUST assert any defense against the plaintiff under rule 12 and any counterclaim under rule 13 (a) against the plaintiff and MAY also assert any counterclaim against the plaintiff under rule 13 (b) or any crossclaim under rule 13 (g).

Front 9

Rule 14 (a) (4)

Back 9

A 3rd party D may object to impleader by:
• Motion to strike OR
• Sever OR
• Try separately

Front 10

Rule 14 (b):

Back 10

When P may bring a 3rd party
When a claim is asserted against the plaintiff a plaintiff may bring a 3rd party, if the rule would allow the D to do so

Front 11

Price v. CTB

Back 11

P sued Lacto, who built P’s chicken house for faulty construction of the chicken house. Lacto filed a 3rd party complaint under rule 14 (a) against ITW, the nail manufacturer alleging that ITW’s nails were defective and the reason for the collapse of the chicken house. Right of contribution not recognized by the state court amongst joint tortfeasors and Lacto alleged implied contractual indemnity.
Court found that the state court does recognize implied indemnity but the 3rd party plaintiff must prove that he was without fault to be able to recover under it. Court also held that a properly implead claim may serve an anchor for separate and independent claims under rule (18) (a).

Front 12

Rule 19(a):

Back 12

Required Joinder (if jurisdiction)
(1) A person who is subject to the service of process and whose joinder will not deprive the court of jurisdiction MUST be joined as a party if:
(A) No complete relief in person’s absence OR
(B) Absent person claims an interest in the action and moving forward in the person’s absence may (either):
(i) impair absent person’s ability to protect the interest OR
(ii) leave a party at risk of inconsistent obligations because of the absent party’s interest
(2) Order of joinder by the court: where the person has not been joined as required, the court MUST order the person to be made a party. A person may refuse to join as a plaintiff and may be either made a defendant or an involuntary plaintiff.

Front 13

Temple v. Synthes corp. (Part I Facts)

Back 13

[rule 19 (a)]: P underwent a surgery where a screw and plate were inserted in his lower back and they broke while they were inside the back itself. P sued Synthes corp. for faulty manufacture of the device in a federal court under diversity jurisdiction and administrative proceedings against the Doc and hospital in a state court. Synthes filed a motion under rule 12(b)(7) for failure to join necessary party under rule 19. District court ordered P to join the doctor and hospital as D’s but he did not and the court dismissed the suit. Appellate Court upheld the dismissal.

Front 14

Temple v. Synthes Corp. (Part II)

Back 14

Supreme Court found that:
• JOINT TORTFEASORS ARE NOT Compulsory PARTIES AND IT WAS AN ERROR ON THE PART OF THE COURT TO LABEL THEM INDISPENSIBLE PARTIES UNDER RULE 19(b). A tortfeasor with a usual ‘joint-and-several’ liability is merely a permissive party to an action with another with a similar liability.
• Also, no inquiry under rule 19 b is necessary, if the threshold requirements of rule 19 (a) have not been satisfied.
2 things to take from this case:
- Joint tortfeasors are not necessary parties. They are merely permissive parties.
- An inquiry under rule 19 (b) is necessary only if the threshold requirements of rule 19 (a) are satisfied.

Front 15

If a person required to be joined under rule 19(a) cannot be joined (because there is not jurisdiction over the person), the court should consider these factors (among others) in deciding whether to proceed without the person or whether the action should be dismissed:

Back 15

(1) Prejudice to absent person and/or existing parties
(2) If extent to which prejudice could be lessened
(3) Would judgment be adequate without absent person?
(4) Would the P have an adequate remedy if action is dismissed?

Front 16

Rule 23 Class Actions, 23 (a) 4 requirements:

Back 16

Must meet ALL four:
(1) Numerosity: the class is so numerous that joinder of all members is impracticable.
(2) Commonality: There are questions of fact or law common to the class
(3) Typicality: the defenses and claims of the representative parties are typical of the claims and defenses of the class.
(4) Adequacy: the representative parties will fairly and adequately protect the interest of the class.

Front 17

Rule 23 Class Actions, 23(b) requirements:

Back 17

One of these:
(1) prosecuting separate actions by or against class members would create the risk of:
(A) inconsistent and varying adjudication with respect to individual class members would create incompatible standards of conduct for the party opposing the class. (exp: numerous P’s suing one for separately for one cause of action, wherein 1 demands something and the others demand the opposite. This would result in inconsistent result for the D who is opposing the class).
(B) practically, adjudication of individual class members would be dispositive in nature or would impede or impair the ability of members, who not parties to individual adjudication to protect their interest.
(2): when the party opposing the class has acted or refused to act on grounds that generally apply to the class, so that the final injunctive relief or the corresponding declaratory relief is appropriate for the whole class (this part of rule only applies when the P’s are seeking injunctive

Front 18

Walmart v. dukes (Facts, Part I)

Back 18

[rule 23 (a), b (2)]: dukes suing on behalf of 1.5 million class members for discriminatory policy at place of employment i.e., discretion exercised by local supervisors disproportionately against women. Class consists of all women who are or were employed with Walmart since 1998. The complaint seeks:
a- declaratory relief
b-punitive damages
c- backpay
Rule 23 a (commonality): 5 out 9 justices agree that commonality is NOT satisfied.

Front 19

Walmart v Dukes (Issue of Commonality, Part II)

Back 19

Commonality requires:
• proof that all members of class have suffered the same injury i.e., not merely a violation of same provisions of the statute [exp: allegation of discriminatory bias on part of the same supervisor.]
• it must be capable of class wide resolution i.e., determination of its truth or falsity will resolve the central issue of each claim.
3 proofs given by P for commonality were (i) anecdotal reports, (ii) statistical evidence and (iii) report of a sociologist. ALL REJECTED BY SC. Thus held that commonality UNDER RULE 23 (a) NOT SATISFIED.

Front 20

Walmart v. Dukes (Court Reasoning, Injunctive Relief under Rule 23 (b) (2), Part III)

Back 20

Rule 23 (b) (2): it only applies when P seeks declaratory and injunctive relief. SC held that where monetary relief is not incidental to the injunctive or declaratory relief, such monetary relief cannot be sanctioned under rule 23 (b) (2). P made a claim for backpay in the complaint which does not satisfy the rule. It does not authorize class certification when each member of the class would be eligible for a different sum of monetary damages.
For reasons mentioned above, classes certified under rule 23 (b) (1) and b (2) are mandatory classes. This means:
•Members of the class cannot opt out of the class and
•It does not oblige the court to even give them a notice of the action.

Front 21

Rule23(c)(1)

Back 21

Class actions must be certified as class actions

Front 22

23(c)(2)

Back 22

Notice is required for (b)(3) class actions; opportunity to opt out of (b)(3) class actions

Front 23

23(e):

Back 23

The claims, issues, or defenses, of a certified class may be settled, voluntarily dismissed, or compromised only with the court's approval.

Front 24

23(g)

Back 24

A court that certifies a class must also appoint class counsel. In determining this, the court considers the counsel's work in the area, experience, knowledge, and resources that the counsel will commit.

Front 25

Rule 26 (b) (1)

Back 25

General scope: scope of discovery. WITH RULE 26 (B) (1) SEE RULE 26 (b) (2) (C) restrictions.
Parties may obtain discovery regarding any non-privileged matter that is relevant to any party’s claim or defense. It may be regarding:
1. Document or other tangible things; and
2. Identity and location of persons who know of discoverable matter.
- Relevant information need not be admissible at trial as long as it is reasonably calculated to lead to the discovery of admissible evidence.
- Relevance is an evidence concept and the information tends to prove or disprove something that the substantive law says.

Front 26

What power does the court have in relation to discovery?

Back 26

THE COURT MAY ORDER DISCOVERY OF ANY MATTER RELEVANT TO THE SUBJECT MATTER OF THE SUIT FOR GOOD CAUSE.

Front 27

rule 26(b)(2)(C)

Back 27

...requires that the court on its own or on a motion, MUST LIMIT THE EXTENT AND FREQUENCY OF DISCOVERY if it determines that:
(1) The discovery sought is unreasonably cumulative or duplicative or can be obtained from some other source that is more convenient, less burdensome and less expensive; AND
(2) The party seeking the discovery has had ample opportunity in the action to obtain information by discovery in the action; OR
(3) The burden or expense of discovery outweighs its likely benefit.

Front 28

Davis v. Precoat Metals (Facts)

Back 28

5 P’s suing 1 D for discrimination based on race and national origin (discrimination against African American and Latino employees) and motion by P to compel discovery against D for similar complaints against D from people who worked at the same plant, between a specific time period and who might have alleged same type of discrimination against the D because they would be able to show their pretext of discrimination.

Front 29

Davis v. Precoat Metals (Holding)

Back 29

Court held that the discovery is relevant to the claim and rule 26 (b) (1) permits discovery of any non-privileged matter relevant to the claim or defense of the party. Also the discovery is not unreasonably cumulative, duplicative, obtainable from other source, less expensive and the expense of discovery does not outweigh its benefit. Thus it is not in violation of rule 26(b)(2)(c).

Front 30

Steffan v Chenney (Facts)

Back 30

The substantive law states that the judicial review of an administrative action is confined to the grounds upon which the record discloses the action was based.
The P in this case resigned from the U.S naval academy after the board recommended that he be discharged. The recommendation was based on his telling that he was a homosexual and he was not charged with any conduct. In discovery, he was being asked about engaging in homosexual conduct to which he refused to answer on 2 grounds:
• Violation of 5th amendment privilege against self-incrimination; and
• The information being irrelevant

Front 31

Steffan v Chenney (Holding)

Back 31

The information was held to be irrelevant because the agencies’ recommendation was based on his admittance of being a homosexual and according to the substantive law, the judicial review may only be done for the conduct upon which the action was based and in this case the recommendation was not base on his gay conduct, rather his admittance of being a gay.
 THE DIFERENCE BETWEEN DAVIS AND STEFFAN CASE IS THE APPLICALE SUBSTANTIVE LAW.

Front 32

Interrogatories

Back 32

can only be sent to parties to the suit under rule 33. Maximum that can be sent as a matter of right are 25

Front 33

Deposition:

Back 33

Under rule 30 this is live questioning of the parties under oath by the attorney of the opposite party. Maximum 10 depositions as a matter of course and maximum 7 hour day for one witness. Also one witness can only be deposed once and court permission required to depose the same person twice. To compel a deposition a party may move for a motion under rule 37 (a) (3).

Front 34

Features of privileges

Back 34

1. Privilege is not relevance. Something may be relevant. Not necessarily privileged.
2. Even if the info is privileged, the other party may find out from other sources.
3. Privileges can also be waived. Waiver may be intentional or by accident. But in case of such inadvertent accident, the party may recover the privilege.
*Information against self-incrimination is a privileged one.

Front 35

R 26 (b) (3) (A) Documents and Tangible Things, Trial Prep Materials

Back 35

Ordinarily, a party may not discover document s and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party's attorney, consultant, etc)

Front 36

HICKMAN v. TAYLOR (Facts)

Back 36

1. 5/9 crew members drowned while helping to tow a car afloat.
2. The owners of the tug contacted their lawyer in anticipation of lawsuit from the reps of the survivors.
3. Lawyer went to the public hearing and thereafter did a private interview of the survivors
4. The P who filed the suit served the D with 39 interrogatories and 38th one asked for statements or members of the crew regarding the tug in relation to the sinking of the boat
5. Lawyer refuses district courts order to produce the info. Is ordered prison but order was stayed until appeal was decided
6. There was no privilege because the conversation was with other people and not his own clients and the court also held that there is no privilege.

Front 37

Hickman v. Taylor (Holding/Reason)

Back 37

The court held that the info that P was looking to discover was already easily available to him because of the public hearing and the witness were available easily to the P as well.
NOTE: in the Hickman case, there was no question of any privileged info. The info was not discoverable because of:
- They were already easily available to the P.
- They were the work product of the attorney i.e., his mental impressions, personal beliefs,
opinions, legal theories etc. and they are not discoverable under rule 26 b (3)( B).

Front 38

What are materials prepared in anticipation of litigation?

Back 38

Materials prepared “with an eye toward litigation;” not in the ordinary course of business. (Hickman v. Taylor). This is unprivileged, relevant material

Front 39

Rule 26(b)(3)(A).

Back 39

Work product materials are discoverable if:
• They are otherwise discoverable under Rule 26(b)(1)
AND
• The party seeking discovery shows substantial need and undue hardship Rule 26(b)(3)(A)(i)-(ii) Hickman v. Taylor

Front 40

Rule 26(b)(3)(B)

Back 40

But, mental impressions, conclusions, opinions or legal theories are always protected.

Front 41

When can work product under 23(b)(3)(A) be discoverable?

Back 41

But subject to rule 26 (b) (4), the material under rule 26 (b) (3) may be discovered if:
- They are otherwise discoverable under rule 26 (b) (1); AND
- The party shows that it has substantial need for the material to prepare its case and it cannot, WITHOUT UNDUE HARDSHIP, obtain their substantial equivalent by other means.