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Complex Litigation
SUNY Buffalo Law School
Bartholomew, Christine P.

Case management issues
Ch. 3- Disposition of Duplicative or related litigation

When can you have more than one case pending?

Repetitive suits: Simultaneous prosecution of two or more suits in which some of the parties or issues are so closely related that the judgment in one will have a res judicata effect on the others.

i. Two forms:
1. Repetitive Suit
a. Multiple suits on the same claim by the same P against the D.
2. Reactive Suits
a. Declaratory action
b. Two separate forums, same issue.
c. Asserting an affirmative claim that arises out of the same transaction or occurrence as the subject matter of the first action
ii. When res judicata will not apply
1. Different Ps against same D’s arising out of the same / similar COA
2. Separate suits including some of the same/ some different parties having some of the same/ similar COA>
3. Separate suits by different parties litigating claims to the same rights, property or res.
iii. Example:
1. P has suit against D for the same COA …. Against the rules and can be dismissed.
2. P brings suit against D for breach of K in TN and P brings suit against D for fraud in a different state… okay.
a. Same transaction and occurrence.

Class actions

i. Same transaction, same issue
ii. All P’s seeking to represent one common claim.

What do you do when you have two cases pending in the SAME DISTRCIT court in DIFFERENT DIVISIONS?!?!

1404(b) transfer: with the consent of the parties, one district can be transferred to another.

i. judge has to decide whether to consolidate or coordinate the two cases
1. Consolidation:
a. Pretrial, discovery, dispositive motions
b. Everything happens as if cases were filed together
i. Pretrial consolidation: 42(b)
1. All pretrial stuff happens together, but NOT THE TRIAL!!!!
2. All collectively treated as one case. (same docket number)
3. Can only happen when the actions are pending in the same division of the same federal district court.
c. Katz
i. Each case in which it may appear desirable to consolidate complaints in different actions must be evaluated on its own facts with close attention to whether the anticipated benefits of the consolidate complaint outweigh potential prejudice to the parties.
ii. P was not prejudiced here.
d. Advantages
i. Easier to combine cases
ii. Police resources
e. Disadvantages
i. Loss of control over litigation
ii. Loss of fees by P’s lawyers
iii. Group trials generally result in lower verdicts per person
iv. May be inefficient to try them all together
1. You ay have to split up trials at some point i. e combined liability trial and separate trial on damages.
2. Coordination
a. Decided on a case by case manner
i. Enough discovery in common in these two cases, but everyone shares in the cost of discovery
ii. CASES NOT JOINED
1. Merely a related action
iii. Courts mean of controlling their own docket.

What about cases pending in DIFFERENT COURT districts?

1404(a)- forum non conveniensà transfer to a more convenient forum. You filed in the right jurisdiction but there is a jurisdiction that may be better.

i. 3 part test:
1. If the transferee district is where action MIGHT have been brought
2. For the convenience of the parties and witnesses
a. Is the transferee court just as close for the parties to go? Is that where the evidence is??
3. Is the transfer in the interest of justice?
a. P should have some say where to bring the suit.
ii. Remember: P can still seek protection from the law of the initial court they filed in.
iii. 1404(a) can be made at any time, the sooner the better.

Ginsey v. ITK

i. Facts:
1. P was from PN and wanted to litigation action there.
2. ITK was in MA and said it had limited contact with forum
a. Long arm statute does not reach
b. Wanted transfer to MA because civil action involving the same parties and same plastic product is currently pending there.
3. P said if the transfer was appropriate- transfer it to NJ
ii. Holding: P’s preference over ruled: MA works bc there are already litigation w/ the same questions of liability and there is probably the same witnesses needed in both cases. (makes sense for judicial administration
1. Rule:
a. Unless balance

happens when you have fed and state cases pending at the same time?

You must determine what laws you want to sue under

i. Different COA- different remedies

Most FED laws have mirror state components

What do you do if you have a case in state and fed involving same issues? Can you join a state and fed case?

NO! (fed courts can’t tell state courts what to do!1
No nationwide procedure to bind all state wide cases
With fed courts- you can get a nation wide MDL

What do you do you do with fed and state cases?

Contact counsel and see if it makes sense to pick one forum over the other.

i. Most of the time this does not work

D goes to judge in the court that they don’t want to work at right away and ask- can you please stay the case (so you can proceed with mirror litigation)
If stay is granted ask for coordination

i. Usually successful but courts worried about duplication of efforts

REMEMBER: If there is a fed law case with state claims and a mirror state law, it is best to have the state case stayed

i. Because the outcome would be the same…

Multiple Proceedings in Federal Court

Stays Orders or injunctions against prosecution of suits in other Federal Courts.

i. Semmes motors v. Ford
1. When the party seeking to preserve the primacy of the first court moves the second court to stay its hand rather than asking the first court to enjoin prosecution of the second case, there is no reason why the result should be different.
2. Rule: The first suit should have priority absent the showing of balance of convenience in favor of second action.