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Advanced Civil Procedure
University of Dayton School of Law
Cox, Jeannette

I. Introduction

a. Theoretical Perspectives on Complex Litigation

i. Adversarial System

1. Joinder: parties structure the case

2. Discovery: in the hands of attorneys

3. Adjudication: possibility of jury

ii. Inquisitional System

1. Joinder: judge structures the case

2. Discovery: in the hands of the judge

3. Adjudication: only judge available

a. Benefits of moving toward inquisitional

i. Less stress. No surprises. More orderly

ii. Some juries might get confused with a complex case and a long trial doesn’t work well with a jury because they are not experts and would be taking a lot of time out of their lives

iii. Having a judge as adversary allows for greater flexibility

b. Moving toward inquisitional would cause us to give up:

i. Autonomy of the parties. Parties lose control of their case.

ii. Giving up right to a jury trial

iii. A settlement isn’t necessarily what we overall want. Creates no case law. No solution to the problem. Less formality to the process and transparency in the law.

II. Aggregation

a. Joinder Rules




· 1 attorney = cheaper legal fees

· More of an impact

· Causation might be easier to establish

· Prepared for insolvency. (Usually a later filing & Π wouldn’t get as much money

· Strong claims are averaged down

· Jury could become overwhelmed

· May lead to a preemptive settlement (Atty. Footing the bill would want to cash out ASAP.

· Risky, one-shot deal.

· Greater risk of error (jury there for so long & getting so much information).


· Gets things over with

· Cheaper to handle one time

· Lose size advantage

· Bad publicity

· Very high stakes

· Can’t settle the strong claims separately; 1 issue (preclusion).


· Efficient

· More judicial power

· Difficult to use juries

· Lack of fairness ( with the averaging of outliers)

· Inconsistent outcome

· Leads to more litigation

· May lead to a legitimacy problem

b. Voluntary Joinder under 20(a), 18

i. Mosley v. GM, p. 60

1. Racial discrimination case. Issue: Whether the standards of Rule 20 were met. Problematic because the joinder issue is decided before the discovery. It would take discovery to determine whether discrimination comes from a company-wide policy. Held: When you have different bases of discrimination, they’re not going to be from the same transactions or occurrence.

ii. In re Prempro, p. 65

1. Fradulent misjoinder doctrine: When a Π sues a diverse Δ in state court and joins a viable claim involving a non-diverse party, or a resident Δ, even though the Π has no reasonable procedural basis to join them in one action because the claims bear no relation to each other.

2. A Δ may remove a state law claim to federal court only if the action originally would have been filed there. After removal, a Π may move to remand the case to state court, and the case should be remanded if it appears that the district court lacks subject matter jurisdiction.

3. All doubts about federal jurisdiction should be resolved in favor of remand to state court.

c. Counterclaims, Crossclaims, & 3rd Party Claims: 13(a), (b), (g); 14

i. LASA v. Alexander. p 75

1. Rule 20 (multiple persons) allows Π to join multiple Δs

2. Rule 13 (multiple claims)

a. (g) may include an indemnification claim

b. (h) allows Alexander to add a party (architect) to the crossclaim

d. Interpleader

i. Interpleader turns the tables, & allows the underlying Δ (the stakeholder) in the dispute to join preemptively all potential Πs

1. Protects a party from having multiple suits brought against them in multiple jurisdictions

ii. Because the decree cannot bind claimants that the stakeholder does not join, the stakeholder has an obvious incentive to interplead all claimants

iii. Presents an opportunity to attain the complete & efficient adjudication of an entire controversy in a single suit

iv. Two distinct forms:

1. Rule interpleader under FRCP 22

2. Statutory Interpleader under §1335 & §2361

v. All about divvying up the res (piece of property or insurance policy)

vi. State Farm v. Tashire. p 84

1. §1335 interpleader remedy combines different aggregation concepts ( you don’t have to meet the normal diversity requirements, because its purpose is to be able to join everyone that needs to be involved. Avoids inconsistent judgments against a person).

a. Permits a person holding an interpleader stake to join on a mandatory basis all parties that might have a claim to the stake

b. It provides for an antisuit injunction, so that claimants cannot continue to prosecute cases in other courts

c. Needs to be minimal diversity amongst all interested parties; therefore, couldn’t be in a federal court (under statute). USE RULE 22

d. §1335 used more often, more broad. Doesn’t cover situations where stakeholder is disinterested (in the res) & all of the claimants are from the same state. (Ex. A bank owns a piece of property & wants to see who owns it).

vii. §2361

1. Statutory interpleader loosens up jurisdiction requirements

viii. Rule 22 isn’t subject to the jurisdictional rules of 4(k) (territorial limits of effective service).

e. Joinder of Required Persons under 19(a) &(b): Very specific category of cases in which parties can be joined.

i. Some nonparties whose presence in the case is essential “must be joined” even when none of the existing parties has thought to or been able to join them

ii. First: identify exactly who these persons “required to be joined if feasible” are (a)

iii. 19(b) states the guidelines under which a court makes the determination of whether to proceed without the required party or dismiss the case due to the party’s absence

iv. One focus of Rule 19 is “the interest of the courts & public in complete, consistent, & efficient settlement of controversies.”

v. A tortfeasor with the usual joint & severable liability is merely a permissive party to an action against another with like liability

vi. Temple v. Synthes p 92

1. Rule 19 protects people with a res of some kind from incurring inconsistent or unfair judgments; BUT, overall it is very inefficient

vii. Republic of the Ph

: “common question of law or fact.”

1. More broad than Rule 20, which requires “same transaction or occurrence.”

iv. Claims don’t have to stay together, could be just for pre-trial

v. Malcom v. National Gypsum p 125

1. Consolidation generally used in three contexts:

a. When several actions are stayed while one is tried, & the judgment in the case tried will be conclusive as to the others

b. When several actions are combined & lose their separate identities; become a single action with a single judgment entered.

c. When several actions are tried together, but each suit retains its separate character, with separate judgments entered. (42(a) usually only applies here).

2. Interdistrict Transfers

a. In re Joint Eastern & Southern Districts Asbestos Litigation p 134

i. Factors relevant to all §1404 transfer determination:

1. Convenience of parties & witnesses

2. The relative ease of access to the source of proof

3. The availability of process of subpoena witnesses if necessary

4. Considerations of trial efficiency

5. The interests of the law in the “just, speedy, & inexpensive determination” of actions

3. Multidistrict Transfers Under §1407

a. Creates the Judicial Panel on Multidistrict Litigation, which is composed of 7 federal judges

b. Establishes 4 requirements for a multidistrict transfer

i. Civil actions involving one or more common questions of fact are pending in different districts

ii. Transfer will be for the convenience of the parties

iii. Transfer will be for the convenience of the witnesses

iv. Transfer will promote the just & efficient conduct of such actions

c. Unique features not present in §1404(a) or 42(a)

i. Once coordinate pre-trial proceedings conclude, §1407 directs the Panel to remand transferred cases back to their transfer forums for trial

ii. The Panel can separate any claim, crossclaim, counterclaim, or 3rd Party claim & remand any of such claims before the remainder of the actions filed

iii. The Panel has authority to transfer related cases (tag-along actions) that are filed after the initial transfer is entered

d. §1407 only applies to pending Federal actions

e. Doesn’t permit consolidation for trial (§1407 is pretrial)

f. Most useful aggregation device

i. A single, centralized decision-maker makes the aggregation decision

ii. The decision-maker has sua sponte transfer authority

iii. The device reaches every Federal case

iv. The Panel’s power to transfer tag-along cases ameliorates to some degree the problem of temporal dispersion

v. The Panel can aggregate just those claims deserving of consolidated treatment, throwing back the rest

vi. The district to which the case is transferred need not be either a district in which the case might originally have been brought or a district in which territorial jurisdiction over the parties exists

g. MDL can transfer even if all the parties oppose