1. Agenda for 15th Class Admin Name plates Slide handout
Mock Mediation Friday
Go to room on chart
Affirmation on Writing Assignments
5 point penalty if TAs have to you about it
Fees
Intro to 2nd half of class
Joinder
Intro to Class Actions and Federal Question Jurisdiction

2. Assignment I Assignment for Friday Prepare for Mock Mediation
Friday afternoon
me,
One per mediation group
1 per 6-8 students (P's and D's together)
Cc all group members (team and opposing team)
Subject line: Mediation results
Content
If settled: Terms of settlement
If did not settle. Last P and D offers
Optional: Feedback on mock mediation and mediator

3. Assignment II (for Monday)
FRCP 23
Yeazell ,
Questions to think about
Pp. 865ff. Qs 1 (WG1), 2 (WG2)
Summarize Walmart (WG3)
Why do you think the plaintiffs brought the case as a 23(b)(2) class action rather than a 26(b)(3) class action? (WG4)
What do you think the plaintiffs lawyers in Walmart should have done after the Supreme Court decision in Walmart? (WG5)
Enrom manipulated the price of its stock by failing to disclose information that would cause share prices to fall. Would a class action alleging violation of federal securities law against Enrom on behalf of all shareholders who purchased stock during the period when the information was being withheld be appropriate? (WG6)
RhinePool supplied blood to hemophiliacs, but failed to screen adequately for HIV. As a result, many hemophiliacs in dozens of states got AIDS and some died. Would a product liability class action against RhinePool on behalf of all hemophiliacs who contracted AIDS as a result of contaminated blood produced by RhinePool be appropriate? (WG7)

4. Assignment III (For Friday) – Fed Q
US Constitution Article III
28 USC 1331, 1338, 1441(a)-(b)
FRCP 8(a)(1), 12(b)(1), 12(h)(3)
Yeazell pp
4 Blackboard Questions on Federal Question Jurisdiction
Questions to think about
Summarize Louisville. (WG1)
Your summary should include the answer to Yeazell. P. 213 Q1
Questions on the next slide
Optional -- Glannon Chapter 4

5. Assignment IV (for Friday) – Fed Q II
Under the FRCP as it exists today, answer the following questions about Louisville
If plaintiffs had drafted a “well pleaded complaint,” what would have been the key allegations of that complaint? (WG2)
If plaintiffs had drafted a well-pleaded complaint and the case had not been dismissed for lack of subject matter jurisdiction, what pleading would defendant have filed in response? What would have been the most important part of that pleading? (WG3)
How would plaintiffs have raised the unconstitutionality the Act of Congress which the defendant alleges prohibited giving the passes that the railroad gave the Mottleys? (WG4)
If defendant’s answer had admitted that it had given passes to the Mottleys and had not honored them, but asserted as an affirmative defense that the passes were invalidated by an Act of Congress, what motion could the plaintiff have made in order to get judgment without discovery or trial? (WG5)
Yeazell p. 213 Q. 3 (WG6)

6. Review of Settlement Economic model simplifies, but also illuminates
Factors that impede settlement
Mutual optimism
Hard bargaining
Factors that encourage settlement
Litigation costs
Risk aversion
Mutual pessimism
Settlement in A Civil Action
In what ways does A Civil Action confirm the validity of Polinsky’s economic model of settlement? (WG5)
In what ways does A Civil Action contradict Polinsky’s economic model of settlement or suggest that the real world is more complex than that model? (WG6)

7. Costs & Fees
Costs
Usually pretty minor– filing fees, court reporter, non-expert witness fees
According to 28 USC 1920 always paid by losing party
Fees
Lawyers fees
Usually large
American rule: each party pays own attorneys’ fees
British rule. Loser pays
If plaintiff wins, then defendant pays plaintiff’s lawyer’s fees
If defendant wins, then plaintiff pays defendant’s lawyers fees
Fee shifting always subject to judicial inquiry into reasonableness
Expenses
Expert witnesses, paralegal & secretarial time, photocopying, etc.
Usually paid by client along with lawyers’ fees
Not generally shifted under British rule
Usually subtracted from judgment or settlement before calculating lawyer’s fee percentage under contingent fee
Fee shifting problems

8. Fees & Costs II 3 ways lawyers are paid
Hourly fee. (most common for defense)
Contingent fee (most common for plaintiffs
Lawyer gets nothing if loses; gets percentage (now usually 40%) of any amount the plaintiff wins after subtracting expenses
Salary. (most common for government or public interest lawyers)
When party who hired lawyer on contingent fee or salary is entitled to lawyer’s fees, then courts estimate hourly rate (lodestar method)
Fees and costs are usually folded into settlement amount
But, if not mentioned specifically in settlement agreement, then prevailing party can still claim costs
Fees in A Civil Action
Given the settlement, how did they calculate how much Schlichtmann and the other lawyers received?

9. Introduction to Second Half of Class
First half of class -- Stages of simple lawsuit
Service of process, pleading, discovery, trial, post-trial motions, appeals
SJ, settlement, ADR
2nd half of course
Complex litigation
Multiples parties and claims -- Joinder, class actions
Multiple suits– Collateral Estoppel & Res Judicata
What court?
Subject matter jurisdiction
Federal or state court?
Personal jurisdiction
If state court, which state’s court?
If federal court, federal court in which state?
Venue – what district within a state?
What law?
Choice of Law
If applying state law, which state’s law?
Erie
When apply state law in federal court in diversity case?

10. Joinder
Rules start from assumption that suits may involve a single plaintiff suing a single defendant on a single claim
Multiple parties and claims are allowed ONLY if explicitly permitted by a rule
Proper joinder does NOT mean case properly in court, still need:
Personal jurisdiction
Subject matter jurisdiction
Venue
Note that joinder expands possible pleadings. FRCP 7
3rd party complaint
Answer to counter claim
Answer to cross-claim
Answer to 3rd party complaint

11. Joinder of Claims Joinder of claims always allowed. FRCP 18(a)
Plaintiff
Defendant
Claim 2
Joinder of claims always allowed. FRCP 18(a)
But judge can, in discretion, always sever.
Joinder is compulsory, if arises out of same transaction or occurrence
Not in FRCP, but part of res judicata
If related claim is brought in later action, defendant can have the case dismissed by raising the defense of res judicata

12. Counterclaims (FRCP 13(a) &(b))
Original Claim
Original plaintiff
Original defendant
Counterclaim
Counterclaims are always allowed. FRCP 13(a) and (b)
Counterclaims are “compulsory” if they arise out of the same “transaction or occurrence” as the original claim. FRCP 13(a)
If compulsory counterclaim is not asserted, cannot be asserted in separate suit

13. Joinder of Parties
Defendant 1
Plaintiff 1
Claim 1
Plaintiff
Claim 1
Defendant
Claim 2
Claim 2
Plaintiff 2
Defendant 2
Joinder of parties allowed, if claims arise out of the same transaction or occurrence AND there is a question of law or fact in common. FRCP 20
FRCP19 addresses compulsory joinder of “necessary parties,” but not part of this course

14. Crossclaims
Defendant 1
Original claim 1
Original plaintiff
Crossclaim
Original claim 2
Defendant 2
Crossclaims are allowed only if they arise out of the same transaction or occurrence as the original action. FRCP 13(g)
Crossclaimant can join unrelated claim(s). FRCP 18(a)

15. 3rd Party Claims
Original claim
Original plaintiff
Original Defendant
3rd party plaintiff
3rd party claim
3rd party defendant
3rd party claims allowed only if 3rd party plaintiff claims that 3rd party defendant is liable to 3rd party plaintiff for some or all of liability that original defendant may owe to original plaintiff. FRCP 14(a)(1)
Indemnity – Contract in which one party (e.g. parts supplier) agrees to reimburse another party (e.g. final manufacturer) for liaiblity (e.g. liability final manufacturer may incur to consumer)
Contribution – Part of tort law which allows jointly liable defendants to sue one another to apportion liability
Different from cross-claim, because 3rd party defendant wasn’t sued by original plaintiff

16. 3rd Party Claims (cont.)
Original claim
Original plaintiff
Original Defendant
3rd party plaintiff
3rd party claim
3rd party defendant
3rd party plaintiff may join any claims it has against the 3rd party defendant. FRCP 18(a)
3rd party defendant can assert any counterclaim against 3rd party plaintiff. 14(a)(2)(B)
3rd party defendant can assert claim against original plaintiff, if it arises out of the same transaction or occurrence as the plaintiff’s claim against third-party plaintiff. 14(a)(2)(D)
Plaintiff may assert claims against 3rd party defendant that arise out of the same transaction or occurrence as the original claim
Then 3rd party defendant may then assert any counterclaims. FRCP 14(a)(3)
Including permissive counterclaims, not part of same transaction or occ.

17. Joinder Questions
Briefly summarize Price
Pp. 807ff. Qs 2b, 2c, 3b

18. Class Actions I Class Action is super joinder device
Way of joining lots of plaintiffs (or defendants)
Single lawyer represents all
Consent from each plaintiff not required
“Class representative” is “named plaintiff”
Usually chosen by class lawyer
Advantages
Low cost as compared to lots of individual suits
Allows case to be brought where each plaintiff has stake that is too small to justify individual suit
But where, in aggregate, significant wrong has been done
Disadvantages
Class lawyer does not always act in interest of class
May be more interested in fees for self than in relief for class
Large magnitude of potential liability may “coerce” defendants into settling weak claims

19. Class Actions II Class actions must be “certified”
Plaintiff’s lawyer first brings regular (non-class-action) case on behalf of named plaintiff(s)
Plaintiff’s lawyer then petitions judge to certify class
Prerequisites for class action
1. Numerosity. Class is so large that joinder (under Rule 20) is not practical. 23(a)(1)
2. Commonality. There are questions of law or fact common to all class members. 23(a)(2)
3. Typicality. The class representative(s) have claims which are typical. 23(a)(3)
4. Adequacy. The class representative(s) can adequately represent class. 23(a)(4)
Technically about parties.
In reality, about class lawyers.
Also, no conflicts of interest.
5. Case must fit into one of 23(b) categories
See next page

20. Class Actions III 23(b) categories (b)(3). Primarily for money damages
E.g. mass tort
Common issues must “predominate”
Class action must be “superior to other available methods for fairly and efficiently adjudicating the controversy”
(b)(2). Injunctive or declaratory relief appropriate for whole class
E.g. desegregation, prison conditions
(b)(1). Risk of inconsistent litigation
E.g. limited fund or conflicting injunctions
Not very common
Interlocutory appeal of certification decision. 23(f)
Grant or denial
Discretionary with court of appeals

21. Class Actions IV Notice and Opt-Out. 23(c)(2)
Only (b)(3) requires “best notice that is practical under the circumstances”
Only (b)(3) requires the class members be given the opportunity to “opt out”
Settlement with court approval only. 23(e)

22. Introduction to Subject Matter Jurisdiction I
Federal courts have limited jurisdiction
Can hear only cases allowed by Constitution and statute
Constitution sets outer limit of jurisdiction
But congress can choose to give courts less
Constitution is not “self-executing”
Need statutory as well as constitutional authority
2 principle categories
Diversity
Plaintiff and defendant are citizens of different states
Complete diversity rules
No plaintiff is citizen of the same state as any defendant
Alienage
One party is US citizen, other party is foreign citizen
Federal question
Cases arising out of federal statute or constitution 
Other categories
Admiralty
Special statutes, such as 28 USC 1338 (patents, copyrights, etc)

23. Introduction to Subject Matter Jurisdiction II
Federal jurisdiction is usually “concurrent”
Plaintiff can bring case either in federal court or state court
State courts can adjudicate issues of federal law or relating to treaties or the US Constitution
Sometimes, federal jurisdiction is “exclusive”
Plaintiff cannot bring case in state court
If statute is silent on whether jurisdiction is concurrent or exclusive, it is concurrent
See 28 USC Federal question jurisdiction
If jurisdiction is exclusive, statute will be explicit
28 USC “No State court shall have jurisdiction over any claim for relief arising under any Act of Congress relating to patents… or copyrights”
But does not specifically exclude state jurisdiction over trademarks, so states have concurrent jurisdiction.

24. Introduction to Subject Matter Jurisdiction III
Subject matter jurisdiction must be plead.
See FRCP 8(a) & Form 7
Jurisdictional statement is about subject matter jurisdiction (not personal jurisdiction)
If court does not have subject matter jurisdiction
Defendant can bring motion to dismiss under FRCP 12(b)(1)
Court can (and must) dismiss, even if defendant does not make motion
Law clerks are often asked to check jurisdiction in every case when filed
Case can be dismissed for lack of subject matter jurisdiction at any time
Issue is never waived.
Issue can be raised for the first time in appellate court
By judge or party

25. Federal Question Jurisdiction
Permissible because allowed by US Constitution, Article III
“The judicial Power shall extent to all Cases …. Arising under this Constitution, the Laws of the United States, and Treaties….”
Authorized by 28 USC 1331
“The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties….”
What are cases “arising under” the US Constitution, federal law, or treaties
Same words used in Article III and 28 USC 1331, but have different meaning
In Article III: any case in which US constitution, federal statute, or treaty needs to be interpreted
In 28 USC 1331: any case in which US constitution, federal statute, or treaty created the cause of action
E.g. if complaint would mention or implicitly refer to US Constitution, federal statute, or treaty
Well-pleaded complaint rule. Louisville & Nashvill Railroad v Mottley
Not sufficient that federal issue is a defense
Defense would be raised in answer, not complaint

26. Removal
If jurisdiction is concurrent, plaintiff can choose federal or state court
But if defendant prefers federal court, it can “remove” the case to federal court. 28 USC 1441
Removal is proper whenever a case could have been brought initially in federal court. 28 USC 1441(a)
Except, in diversity cases, when the defendant is a citizen of the state in which sued. 28 USC 1441(b)

27. Subject Matter Jurisdiction in State Court
A 2nd meaning of subject matter jurisdiction is the jurisdiction of a specialized court
E.g. jurisdiction of bankruptcy court, tax court, probate court, small claims court
2nd meaning is generally more important in state court
Unlike federal courts, state courts can generally hear any cause of action
U.S. Constitution does not limit jurisdiction of state courts
Although some statutes give federal courts exclusive jurisdiction
And thus bar state court jurisdiction
So don’t need to think about diversity jurisdiction or federal question jurisdiction to determine state court subject matter jurisdiction
State constitutions or statutes may limit state court jurisdiction
State are free to set up court systems as they please
Most have more specialized courts than federal courts
Probate, small claims court, family court
Non-specialized state court is usually called “superior court”
But in NY called “supreme court”
Highest appellate court in NY called “Court of Appeals”