1. Wed., Oct. 25

2. necessary parties

3. Rule 19. Required Joinder of Parties (a) Persons Required to Be Joined if Feasible.     (1) Required Party.  A person who is subject to service of process and whose joinder will not deprive the court of subject-matter jurisdiction must be joined as a party if:         (A) in that person’s absence, the court cannot accord complete relief among existing parties; or         (B) that person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person’s absence may:             (i) as a practical matter impair or impede the person’s ability to protect the interest; or             (ii) leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the interest.

4. (b) When Joinder Is Not Feasible
(b) When Joinder Is Not Feasible.  If a person who is required to be joined if feasible cannot be joined, the court must determine whether, in equity and good conscience, the action should proceed among the existing parties or should be dismissed. The factors for the court to consider include:     (1) the extent to which a judgment rendered in the person’s absence might prejudice that person or the existing parties;     (2) the extent to which any prejudice could be lessened or avoided by:         (A) protective provisions in the judgment;         (B) shaping the relief; or         (C) other measures;     (3) whether a judgment rendered in the person’s absence would be adequate; and     (4) whether the plaintiff would have an adequate remedy if the action were dismissed for nonjoinder.

5. Rule 24. Intervention (a) Intervention of Right
Rule 24. Intervention (a) Intervention of Right.  On timely motion, the court must permit anyone to intervene who:     (1) is given an unconditional right to intervene by a federal statute; or     (2) claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest, unless existing parties adequately represent that interest.

6. (b) Permissive Intervention. (1) In General
(b) Permissive Intervention.     (1) In General. On timely motion, the court may permit anyone to intervene who:         (A) is given a conditional right to intervene by a federal statute; or         (B) has a claim or defense that shares with the main action a common question of law or fact

7. supplemental jurisdiction

8. U. S. Const. Article III. Section. 2
U.S. Const. Article III. Section. 2.  The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;--between a State and Citizens of another State;--between Citizens of different States,--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

9. initial approach – even if pendent or ancillary jurisdiction is constitutional, look to the purposes of the statute providing SMJ to the “core” action to see if it is in keeping with the purposes of the statute

10. after Finley…

11. 28 U.S.C. § 1367. - Supplemental jurisdiction

12. (a) Except as provided in subsections (b) and (c) or as expressly provided otherwise by Federal statute, in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties.

13. (b) In any civil action of which the district courts have original jurisdiction founded solely on section 1332 of this title, the district courts shall not have supplemental jurisdiction under subsection (a) over claims by plaintiffs against persons made parties under Rule 14, 19, 20, or 24 of the Federal Rules of Civil Procedure, or over claims by persons proposed to be joined as plaintiffs under Rule 19 of such rules, or seeking to intervene as plaintiffs under Rule 24 of such rules, when exercising supplemental jurisdiction over such claims would be inconsistent with the jurisdictional requirements of section 1332.

14. P(NY) D(NY) I(NY) federal securities state law breach of contract
fraud
state law
Insurance contract

15. what if the D is granted summary judgment on the federal securities action? must the court dismiss the state common law fraud action? what if the D gets the federal securities action dismissed for failure to state a claim?

16. (c) The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if - (1) the claim raises a novel or complex issue of State law, (2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction, (3) the district court has dismissed all claims over which it has original jurisdiction, or (4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction.

17. 1367(d) The period of limitations for any claim asserted under subsection (a), and for any other claim in the same action that is voluntarily dismissed at the same time as or after the dismissal of the claim under subsection (a), shall be tolled while the claim is pending and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period.

18. JINKS V. RICHLAND COUNTY 538 U.S. 456 (2003)

19. - P(NY) and D(NY) wish to litigate their state law battery action in federal court before their friend, federal judge X, who is willing - how to overcome the problem of SMJ? - P sues D in federal court claiming that D’s hitting him was a violation of federal securities law - P joins to the federal action a state law battery action - when the federal securities law action is dismissed for failure to state a claim, there is still SMJ for the battery action - should this work...?

20. A (NY) sues B(NY) under fed securities laws A joins state common law fraud claim against C (NY), an auditor for B who was also responsible for the fraud A(NY) federal 20(a) state B(NY) C(NY)

21. Finley v. United States (US 1989) Aldinger v. Howard (US 1976)

22. assume A also joins a state law action for a battery occurring a few weeks before the fraud against C

23. A (Cal.) sues E (Nev.) (B’s employer) under state law for a battery committed by B (Cal.) - E impleads B - B then brings a suit against A on the harm done to B in their fight

24. over claims by plaintiffs against persons made parties under Rule 14, 19, 20, or 24 of the Federal Rules of Civil Procedure, or over claims by persons proposed to be joined as plaintiffs under Rule 19 of such rules, or seeking to intervene as plaintiffs under Rule 24 of such rules,
A(Cal.) E(Nev.) B(Cal.)

25. A(Cal.) E(Nev.) B(Cal.)
over claims by plaintiffs against persons made parties under Rule 14, 19, 20, or 24 of the Federal Rules of Civil Procedure, or over claims by persons proposed to be joined as plaintiffs under Rule 19 of such rules, or seeking to intervene as plaintiffs under Rule 24 of such rules,

26. Owen Equip & Erection Co v. Kroger

27. P (Cal) sues D (Cal) under federal securities laws
P (Cal) sues D (Cal) under federal securities laws. D joins an action against P for battery, asking for $100k P(Cal) federal state securities battery D(Cal)

28. P (Cal) sues D (Ore) for state law breach of contract, asking for $100K. D joins an action against P for battery, asking for $25k. P(Cal) state state breach of contract battery D(Ore)

29. P (NY) sues D (NJ) for battery asking for $100K D impleads X (NY) a joint tortfeasor for contribution X brings 14(a) claims against P from damages from same accident P brings compulsory counterclaim against X

30. P(NY) battery battery battery D(NJ) contribution X(NY)
over claims by plaintiffs against persons made parties under Rule 14, 19, 20, or 24 of the Federal Rules of Civil Procedure, or over claims by persons proposed to be joined as plaintiffs under Rule 19 of such rules, or seeking to intervene as plaintiffs under Rule 24 of such rules,

31. P (NY) sues D1 (NJ) for state law battery asking $100k and D2 (NJ) asking $25K. P(NY) $100k $25k D1(NJ) D2(NJ) over claims by plaintiffs against persons made parties under Rule 14, 19, 20, or 24 of the Federal Rules of Civil Procedure, or over claims by persons proposed to be joined as plaintiffs under Rule 19 of such rules, or seeking to intervene as plaintiffs under Rule 24 of such rules,

32. (b) In any civil action of which the district courts have original jurisdiction founded solely on section 1332 of this title, the district courts shall not have supplemental jurisdiction under subsection (a) over claims by plaintiffs against persons made parties under Rule 14, 19, 20, or 24 of the Federal Rules of Civil Procedure, or over claims by persons proposed to be joined as plaintiffs under Rule 19 of such rules, or seeking to intervene as plaintiffs under Rule 24 of such rules, when exercising supplemental jurisdiction over such claims would be inconsistent with the jurisdictional requirements of section 1332.

33. P1 (NY) sues D (NJ) under state law battery for $100k and joins with P2 (NY) who sues D for $25K. P1(NY) P2(NY) $100k $25k D(NJ) over claims by plaintiffs against persons made parties under Rule 14, 19, 20, or 24 of the Federal Rules of Civil Procedure, or over claims by persons proposed to be joined as plaintiffs under Rule 19 of such rules, or seeking to intervene as plaintiffs under Rule 24 of such rules,

34. Exxon Corp. v. Allapattah (U.S. 2005)

35. P1 (NY) sues D (NJ) under state law battery for $100k
P1 (NY) sues D (NJ) under state law battery for $100k. D makes a motion to join P2 (NY), who has a claim against D for $25K, as a necessary party P1(NY) P2(NY) R. 19 $100k $25k D(NJ) over claims by plaintiffs against persons made parties under Rule 14, 19, 20, or 24 of the Federal Rules of Civil Procedure, or over claims by persons proposed to be joined as plaintiffs under Rule 19 of such rules, or seeking to intervene as plaintiffs under Rule 24 of such rules,

36. P1(NY) sues D (NJ) for $100k and joins with P2 (NJ) who sues D for $100K P1(NY) P2(NJ) $100k $100k D(NJ)

37. P1(NY) sues D1 (NJ) for $100k P1 joins with P2 (NY) who sues D2(NJ) for $25k.

38. P1(NY) P2(NY) $100k $25k D2(NJ) D1(NJ) over claims by plaintiffs against persons made parties under Rule 14, 19, 20, or 24 of the Federal Rules of Civil Procedure, or over claims by persons proposed to be joined as plaintiffs under Rule 19 of such rules, or seeking to intervene as plaintiffs under Rule 24 of such rules,

39. recap of supplemental jurisdiction for diversity cases with co-plaintiffs and co-defendants…

40. No P1(NY) P2(NJ) $100k $100k D(NJ)

41. Yes P1(NY) P2(NY) $100k $25k D(NJ)

42. No P(NY) $100k $100k D1(NJ) D2(NY)

43. No P(NY) $100k $25k D1(NJ) D2(NJ)

44. P(Cal) sues D(Cal) in state court in Cal under 42 U. S. C
P(Cal) sues D(Cal) in state court in Cal under 42 U.S.C. § 1983 for violations of his civil right. Joined to the action is an unrelated state law breach of contract action against D. May D successfully remove? P(Cal) federal state civil rights contract D(Cal)

45. 28 U.S.C. § Actions removable generally (c) Joinder of Federal law claims and State law claims.--(1) If a civil action includes— (A) a claim arising under the Constitution, laws, or treaties of the United States (within the meaning of section 1331 of this title), and (B) a claim not within the original or supplemental jurisdiction of the district court or a claim that has been made nonremovable by statute, the entire action may be removed if the action would be removable without the inclusion of the claim described in subparagraph (B). (2) Upon removal of an action described in paragraph (1), the district court shall sever from the action all claims described in paragraph (1)(B) and shall remand the severed claims to the State court from which the action was removed. Only defendants against whom a claim described in paragraph (1)(A) has been asserted are required to join in or consent to the removal under paragraph (1).

46. Discovery

47. scope of discovery

48. Old version: 26(b)(1): Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense

49. NOW: Scope in General. Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.

50. privileges

51. privilege against self-incrimination

52. Fed. R. Evid. 501

53. attorney-client privilege spousal privileges priest-penitent privilege doctor-patient privilege

54. attorney-client privilege

55. Restatement (Third) of The Law Governing Lawyers § 68
Restatement (Third) of The Law Governing Lawyers § 68. Attorney–Client Privilege   [T]he attorney-client privilege may be invoked as provided in § 86 with respect to: (1) a communication (2) made between privileged persons (3) in confidence (4) for the purpose of obtaining or providing legal assistance for the client.

56. why does the attorney-client privilege exist?

57. your client tells you that he was looking the other way when he drove into the plaintiff your client receives an interrogatory asking whether he said to you that he was looking the other way when he drove into the plaintiff does your client have to answer the interrogatory?

58. if the interrogatory asks whether your client was looking the other way when he drove into the plaintiff does he have to answer? what if your client says he was not looking the other way on the stand?

59. - your client tells you that he was looking the other way when he drove into the plaintiff - subsequently he credibly tells you that when he said he was looking the other way he wasn’t telling the truth - he was not actually looking the other way at that moment – he said it because was feeling guilty because he was looking the other way about 20 seconds before the accident - your client receives an interrogatory asking whether he said to you that he was looking the other way when he drove into the plaintiff - does your client have to answer the interrogatory? - your client receives an interrogatory asking whether he was looking the other way when he drove into the plaintiff - what can he say?

60. who controls the attorney-client privilege?

61. corporate attorney-client privilege

62. work product “privilege”

63. Hickman v. Taylor (U.S. 1947)

64. 26(b)(3)(A) Documents and Tangible Things
26(b)(3)(A) Documents and Tangible Things. Ordinarily, a party may not discover documents 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, surety, indemnitor, insurer, or agent). But, subject to Rule 26(b)(4), those materials may be discovered if: (i) they are otherwise discoverable under Rule 26(b)(1); and (ii) the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.

65. 26(b)(3)(B) Protection Against Disclosure
26(b)(3)(B) Protection Against Disclosure. If the court orders discovery of those materials, it must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party’s attorney or other representative concerning the litigation.

66. an interrogatory asks, “Whom have you interviewed in connection with this case and did you make any reports, memos, etc.” may you claim that the information is work-product under 26(b)(3) and/or Hickman?

67. a witness you interviewed said that your client was looking the other way while he drove into plaintiff you write it up in a witness statement the plaintiff requests the statement in a document request may you claim that it is work product under 26(b)(3) and/or Hickman? if the interrogatory instead asks your client whether he was looking the other way during the accident, may he refuse to answer on the basis of 26(b)(3) and/or Hickman?

68. the plaintiff serves you with a document request asking for witness statements drafted by a private investigator retained by your client prior to hiring you, when he was worried that he might be sued work product?

69. would it matter if the plaintiff served you with an interrogatory asking for the substance of the witness statements?

70. what if the document was instead an unsolicited letter from a witness?

71. you are being sued for negligence in connection with a car accident the plaintiff serves you with a document request asking for: 1) witness statements taken by your lawyer a year ago – only a few hours after the accident 2) your lawyer’s notes on the interviews with the witnesses can the Work Product Privilege be overcome?

72. P is going to offer a witness W D thinks that W said something different to P’s lawyer compared to what W will say on the witness stand can D get statements that W made to P’s lawyer?

73. P is going to testify about the extent of his injuries due to D’s negligence may P request in discovery any surveillance tapes that D may have made of P after the accident?

74.   a witness, X, who is friendly to the D, was interviewed by P’s attorney and a statement was drawn up. is there any way that D can get X’s statement without having to overcome the work-product privilege?

75. 26(b)(3)(C) Previous Statement
26(b)(3)(C) Previous Statement.  Any party or other person may, on request and without the required showing, obtain the person’s own previous statement about the action or its subject matter....A previous statement is either:             (i) a written statement that the person has signed or otherwise adopted or approved; or             (ii) a contemporaneous stenographic, mechanical, electrical, or other recording — or a transcription of it — that recites substantially verbatim the person’s oral statement.

76. waiver