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Rule 20 — Permissive Joinder of Parties
(a) Permissive Joinder. All persons may join in one action as
plaintiffs if they assert any right to relief jointly, severally,
or in the alternative in respect of or arising out of the same
transaction, occurrence, or series of transactions or occurrences
and if any question of law or fact common to all these persons
will arise in the action. All persons (and any vessel, cargo or
other property subject to admiralty process in rem) may be joined
in one action as defendants if there is asserted against them
jointly, severally, or in the alternative, any right to relief in
respect of or arising out of the same transaction, occurrence, or
series of transactions or occurrences and if any question of law
or fact common to all defendants will arise in the action. A
plaintiff or defendant need not be interested in obtaining or
defending against all the relief demanded. Judgment may be given
for one or more of the plaintiffs according to their respective
rights to relief, and against one or more defendants according to
their respective liabilities.

(b) Separate Trials. The court may make such orders as will
prevent a party from being embarrassed, delayed, or put to expense
by the inclusion of a party against whom the party asserts no
claim and who asserts no claim against the party, and may order
separate trials or make other orders to prevent delay or

The purpose of the rule is to promote trial convenience and
expedite the final determination of disputes, thereby preventing
multiple lawsuits.

You need to prove two things:
1) a right to relief must be asserted, by, or against, each
plaintiff or defendant relating to or arising out of the same
transaction or occurrence, or series of transactions or
occurrences; and

2) some question of law or fact common to all the parties must
arise in the action.

Rule 20 is premised on efficiency concerns. Rule 20 allows:

plaintiff to join tortfeasors

plaintiff to join defendants who are or who may be liable in the
alternative pemrits multiple plaintiffs to join together in one

Rule 20 does not allow defendants to require that plaintiffs join
With respect to Title VII, courts have found that the
discriminatory characttter of a defendant’s conduct is basic to
the class, and the fact that the individual class members may have
suffered different effects from the alleged discrimination is
immaterial for the purposes of the prerequisite.

Although Title VII and sec. 1981 have different elements in their
statutory causes of action, a central issue in both is that the
plaintiff was subjected to race discrimination.

Mosley v. General Motors Corporation (page 24; 8th Circuit)
All “logically related” events entitling a person to institute a
legal action against another generally are regarded as comprising
a ttransaction or occurrence. Absolute identity of all events is
unnecessary. Here, each of the ten plainttifs alleged that he had
been injured by the same general policy of discrimination on the
part of GM and the Union–thus this meets tthe first requisite for
joinder under Rule 20(a). Second, the right to relief here
depends on the ability to demonstrate that each of the plaintiffs
was wronged by racially discriminatory policies on the part of the
defendants. The discriminatory character of th
defendants’ conductt is thus basic to each plaintiff’s recovery.
The fact that each palintiff may have suffered different effects
from the alleged discrimination is immaterial for the purposes of
determining the common question of law or fact–so, the second
part is met.
The difficulties of ultimately determining damages to various
plaintiffs are not so overwhelming as to require severance, and if
appropriate, separate trials can be granted on damages after the
determination of common questions.

Joinder of multiple claims is permitted by Rule 18(a).

The claim here was based on different events by which each
plaintiff was allgedly discriminated against as to promotion,
conditions of employment, failure to hire, etc. It also seems
likely that different GM employees were responsible for the
alleged acts of discrimination against each plaintiff.

Stanford v. Tennessee Valley Authority (page 29; Middle D. of
Defendants’ plants are separately owned and operated and they are
located at different distances from the plaintiff’s property.
Their activities are separate and distinct from each other
although they are engaged in the same general type of business.
There is nothing on the face of the complaint from which it could
be concluded that the plaintiff’s claims against the two
defendants arise out of the same transaction or occurrence, or out
of the same series of transactions or occurrences. The
transactions are separate as to each defendant. Thus, there is
misjoinder here. But, Rule 42 authorizes the Court to order a
joint hearing or trial of any or all matters in issue in the
actions, or to consolidate the actions, if they involve “a common
question of law or fact.” Here, the requirements of Rule 42 are
met. Thus, the claims are severed for all purposes and to be
proceeded with separately except that they will be tried together
before the same jury.

The court probably got this case wrong. There are efficiencies
for bringing the two defendants together for pre trial, but a good
argument can be made that the two could be separated for trial.

Rule 19 Joinder of Persons Needed For Just Adjudication

(a) Persons to Be Joined if Feasible. A person who is subject to
service of process and whose joinder will not deprive the court of
jurisdiction over the subject matter of the action shall be joined
as a party in the action if (1) in the person’s absence complete
relief cannot be accorded among those already parties, or (2) the
person claims an interest relating to the subject of the action
and is so situated that the disposition of the action in the
person’s absence may (i) as a practical matter impair or impede
the person’s ability to protect that interest or (ii) leave any of
the persons already parties subject to a substantial risk of
incurring double, multiple, or otherwise inconsistent obligations
by reason of the claimed interest. If the person has not been so
joined, the court shall order that the person be made a party. If
the person should join as a plaintiff but refuses to do so, the
person may be made a defendant, or, in a proper case, an
involuntary plaintiff. If the joined party objects to venue and
joinder of that party would render the venue of the action
improper, that party shall be dismissed from the action.

(b) Determination by Court Whenever Joinder Not Feasible. If a
person is described in subdivision (a)(1) (2) hereof cannot be
made a party, the court shall determine whether in equity and good
conscience the action should proceed among the parties before it,
or should be dismissed, the absent person being thus regarded as
indispensable. The factors to be considered by the court include:
first, to what extent a judgment rendered in the person’s absence
might be prejudicial to the person or those already parties;
second, the extent to which, by protective provisions in the
judgment, by the shaping of relief, or other measures, the
prejudice can be lessened or avoided; third, whether a judgment
rendered in the person’s absence will be adequate; fourth, whether
the plaintiff will have an adequate remedy if the action is
dismissed for nonjoinder.

(c) Pleading Reasons for Nonjoinder. A pleading asserting a claim
for relief shall state the names, if known to the pleader, of any
persons as described in subdivision (1)(1) hereof who are not
joined, and the reasons why they are not joined.

(d) Exception of Class Actions. This rule is subject to the
provisions of Rule 23.

This rule is mandatory for some parties. It only covers a small
number of cases and certainly would not have covered Stanford v.

Rule 19 is a 3 part inquiry:
1) When should a party be joined, if feasible?

there are three circumstances:
i) (a)(1) when in 3d party’s absence, complete relief cannot be
given to those already a party [ Hollow relief].

ii) (a)(2)(1) we want to join 3d party because if we do not, 3d
party’s interests might be impaired.

iii) (a)(2)(2) if 3d party is not joined, their absence may leave
one or more parties with inconsistent or multiple obligations.

2) Can the party be joined? consider subject matter jurisdiction,
diversity jurisdiction, venue. If no, then we are doen. If yes,

3) Is it feasible to join this party?

If the person should be joined and you can join them, then you
MUST join them.

19(b) states 4 factors to help you make the decision whether to go
on w/o 3d party or dismiss:
1) to what extent would a judgment prejudice either 3d party or
those already parties. consider the scope of prejudice.
2) to what extent can the court take protective measures to ease
prejudice? look at advisory committee notes.
3) whether a judgment rendered in the person’s absence would be
adequate? [mengler does not thin this means anything on its own;
it meshes with the other factors.]
4) Will plaintiff have an adequate remedy if the case is
dismissed? [i.e. is there some other court where plaintiff can
get relief?]

Eldredge v. Carpenters 46 Northern California Counties JATC (page
53; 9th Cir)
Rule 19 requires two separate inquiries. First, are there persons
who should be joined, either because their own interests or the
interests of the parties might be harmed by their absence? Such
persons, referred to as “necessary parties”, must be joined if
feasible [19(a)]. Second, if parties determined to be necessary
under rule 19(a) cannot be joined, should the action in “equity
and good conscience” be dismissed? Only if the court determines
that the action should be dismissed is the absent party labeled
“indispensable.” The inquiry should focus on the practical
effects of joinder and non-joinder. Here, 4500 employers were not
necessary parties because an injunction against ATC would stop
its violations, and the other employer’s interests in employee
selection will not be impeded if they are not made parties.

Billy J. Temple v. Synthes Corporation, Ltd. (page 1 supplement;
Supreme Court)
It is not necessary for all joint tort feasors to be named as
defendants in a single lawsuit. Advisory Committee notes to Rule
19(a) state that “a tortfeasor with the usual ‘joint and several’
liability is merely a permissive party to an action against
another with like liability.” Here, threshold requirements of
19(a) have not been satisfied, so no inquiry under 19(b) is


Once a person has been determined to be a necessary party under
Rule 19(a), the rule provides that he shall be joined. The court
will order that he be made a party, and “if he should join as a
plaintiff but refuses to do so, he may be made a defendant, or, in
the proper case, an involuntary plaintiff.”

There are however, three expressed limitations on such joinder.
He cannot be made a party unless:
1) he is subject to service of process
2) his joinder will not deprive the court of subject matter
jurisdiction, and
3) he does not properly object that his joinder would render venue

Ancillary jurisdiction permits the joinder of issues and parties
over which a federal court does not have subject matter
jurisdiction as an incident to disposition of the entire case
before the court. The Supreme Court, however, has refused to
extend ancillary jurisdiction when it would undercut the intentt
of the particular jurisdictional statute involved, as with the
requirement of complete diversity.

Pendent Jurisdiction
In rare circumstances federal jurisdiction extends to suits in
which a well pleaded complaint to enforce a state created right to
relief discloses a compelling need to resolve a substantial and
disputed question of federal law.

Although it is technically sufficient under the Constitution that
some issue of federal law be the merest “ingredient” of an
otherwise state law cause of action in order for the whole case to
be tried in federal court, Congress takes a very restrictive
Congress passed the Judicial Improvements Act of 1990 (sec. 1367),
which provides a statutory basis for supplemental jurisdiction.
Subsection (a) authorizes the district courts to exercise
jurisdiction over a supplemental claim whenever it forms part of
the same constitutional case or controversy as the claim or claims
that provide the basis for the district court’s original
jurisdiction. The same case or controversy has been viewed as
including all claims arising out of a single transaction or
occurrence or related series of transactions or occurrences.

Two types of Pendent Jurisdiction:

1) Pendent Claim: single plaintiff v. single defendant [United
Mine Workers v. Gibbs]

2) Pendent Party: the addition of a brand new party to a case,
over which there is no independent federal source of jurisdiction.

Under section 1367(b), federal courts may not exercise
supplemental jurisdiction over Ds made parties through F.R.C.P
rules 14, 19, 20 and 24: (note: this ensures that complete
diversity is still maitained!):
1) Claims against third party defendants (pursuant to Rule 14)
2) Compulsory joinder (Rule 19(a)). Neither a claim against such
a person, nor a claim by that person, comes within the
supplemental jurisdiction in a diversity only case.
3) Rule 20 joinder. (permissive joinder).
4) Rule 24 intervention.

Claims over D’s still allowed under 1367:
1) Compulsory counterclaims: Rule 13(a).
2) Additional parties to compulsory counterclaims: Rule 13(h)
joinder of additional parties to compulsory counterclaims.
3) Cross claims: Rule 13(g)
4) Impleader: Rule 14
5) Class actions under 23 [only the named class representative
must satisfy the citizenship requirement of 1332, but all all
class members must satisfy the amount in controversy requirement.

Discretionary rejection of supplemental jurisdiction under sec.
1367(c) can occur when:
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
4) In exceptional circumstances, if there are other compelling
reasons for declining jurisdiction.
(c) of 1367 codifies the factors that the Supreme Court has
recognized as providing legitimate bases upon which a district
court may decline jurisdiction over a supplemental claim, even
though it is empowered to hear the claim. Four specific factors
are listed. As under current law, (c) requires the district
court, in exercising its discretion, tto undertake a case specific
analysis. If pursuant to (c), a district court dismisses a
party's supplemental claim, a party may choose to refile that
claim in state court. Then the federal district court, in
deciding the party's claims over which the court has retained
jurisdiction, should accord no claim preclusive effect to a state
court judgment on the supplemental claim. It is also possible
that, if a supplemental claim is dismissed pursuant to this
subsection, a party may move to dismiss without prejudice his or
her other claims for the purpose of refiling the entire action in
state court.

Under (c), a district court may dismiss a supplemental claim if it
raises a novel or complex issue of state law, substantially
predominates over the claim or claims over which the district
court has original jurisdicttion, or if tthe district court
dismissed all claims over which it has original jurisdiction and
judirical efficiency does not clearly favor adjudicating the
supplemental claim. Additionally, the subsection accommodates
exceptional circumstances, not defined, in which grounds for
dismissal of the supplemental claim may be compelling.

Sec. 1367 (d) states: period of limitations for any supplemental
jurisdiction claim shall be tolled while the claim is still
pendind AND for a period of 30 days after it is dismissed unless
state law provides for a longer toll. The purpose is to prevent
the loss of claims to statutes of limitations where state law
might fail to toll the running of the period of limitations while
a supplemental claim was pending in federal court.

Rule 24 -- Intervention
(a) Intervention of Right. Upon timely application anyone shall
be permitted to intervene in an actin: (1) when a statute of the
United States confers an unconditional right to intervene; or (2)
when the applicant claims an interest relating to the property or
transaction which is the subject of the action and the applicant
is so situated that the disposition of the action may as a
practical matter impair or impede the applicant's ability to
protect that interest, unless the applicant's interest is
adequately represented by existing parties.
(b) Permissive Intervention. Upon timely application anyone may
be permitted to intervene in an action: (1) when a statute of the
United States confers a conditional right to intervene; or 92)
when an applicant's claim or defense and the main action have a
question of law or fact in common. When a party to an action
relies for ground of claim or defense upon any statute or
executive order administered by a federal or state governmental
officer or agency or upon any regulation, order, requirement or
agreement issued or made pursuant to the statute or executive
order, the officer or agency upon timely application may be
permitted to intervene in the action. In exercising its
discretion the court shall consider whether the intervention will
unduly delay or prejudice the adjudication of the rights of the
original parties.

(c) Procedure. A person desiring to intervene shall serve a
motion to intervene upon the Parties as provided in Rule 5. The
motion shall state the grounds therefor and shall be accompanied
by a pleading setting forth the claim or defense for which
intervention is sought. The same procedure shall be followed when
a statute of the United States gives a right to intervene. When
the constitutionality of an act of Congress affecting the public
interest is drawn in question in any action to which the United
States or an officer, agency, or employee thereof is not a party,
the court shall notify the Attorney General of the United States
as provided in Title 28, U.S.C. sec. 2403. When the
constitutionality of any statute of a State affecting the public
interest is drawn in question in any action in which that State or
any agency, officer, or employee thereof is not a party, the court
shall notify the attorney general of the State as provided in
Title 28, U.S.C. sec. 2403. A party challenging the
constitutionality of the legislation should call the attention of
the court tto its consequential duty, but failure to do so is not
a waiver of any constitutional right otherwise timely asserted.

Intervention provides a means for an outsider who has an interest
in a lawsuit to voluntarily join the suit as a party.

Intervention is good for at least three reasons:
1) Reduces court time and court clog.
2) Prevents inconsistencies in fact finding and law determination
tthat might occur if the decisionmaker separately considered the
issues combined for consideration through intervention.
3) Integration of similar issues into one acttion can avoid
complicated issues of collateral estoppel.

Planned Parenthood v. Citizens For Community Action (page 107)
Upon filing a timely application for intervention as of right
under Rule 24(a)(2), the applicant is entitled to intervene if he
satisfies the following three part test: (1) That he has a
recognized interest in the subject matter of the primary
litigation, (2) that his interest might be impaired by the
disposition of the suit, and (3) that his interest is not
adequately protected by the existing parties. In regard to the
first requirement, the interest identified must be more than
peripheral or insubstantial; the applicant must assert a
"significantly protectable interest." Here, there was an interest
in property, which is a fundamenttal interest, and court says it
is significantly protectable interest. The other two requirements
are also met.

Some courts hold that a party seeeking to intervene need not
demonstrate that he has standing in addition to meeting the
requirements of Rule 24 so long as there exists a justiciable case
and controversy between the parties already in the lawsuit. Other
courts disagree.
Courts have held that an intervenor could not pursue an appeal
after the principal defendant decided not to appeal further
without demonstrating standing.

U.S. v. Reserve Mining Co. (page 114; D. of Minnessota)
It need not be shown positively that representation will be
inadequate. It is sufficient if it is shown that it may be
inadequate. Here, court allows many parties to intervene both as
defendants and as plaintiffs in the suit. Cour, for purposes of
efficiency, sets up criteria for how the parties will work

Intervention requires a timely application. In Stalworth v.
Monsanto Co., the 5th Circuit set out the four factors for judging

1) time the intervenor know or should have known of his interest
in the case;
2) prejudice to existing parties resulting from the delay in
seeking intervention;
3) prejudice to the intervenor if intervention is denied, and
4) unusual circumstances militating for or against a finding of

Martin v. Wilks (page 128; Supreme Court)
One cannot be precluded from challenging something because one was
not a party to a prior proceeding over that thing. Here, white
firefighters could not be precluded from challenging employment
decisions taken pursuant to the decrees because these firefighters
had not been parties to the proceedings in which the decrees were
Civil Rights Act of 1991 modified this case. If any of these
people have actual notice and an adequate opportunity to be heard
and they do not intervent, then they cannot bring a separate
lawsuit later. If representative of these people shows up, then
you are also barred.



William Gluckin & Co. v. International Playtex Corp. (Ct. App. 2nd
Circuit; page 148)
The general rule is that the first suit should have priority
"absent the showing of balance of convenience in favor of the
second action" or unless there are special circumstances which
justify giving priority to the second. Here, the balance of
convenience was toward the second suit.[page 151 listts 14
reasons.] Here, stay against the first suit was ok.

Semmes Motors, Inc. v. Ford Motor Co. (page 153)
Where 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. Whatever the
procedure, the first suit should have priority absent the showing
of balance of convenience in favor of the second action [Matter v.
Louis Marx] [this is the Ford dealership termination case]


Rule 42 Consolidation; Separate Trials

(a) Consolidation. When actions involving a common question of
law or fact are pending before the court, it may order a joint
hearing or trial of any or all the matters in issue in the
actions; it may order all the actions consolidated; and it may
make such orders concerning proceedings therein as may tend to
avoid unnecessary costs or delay.

(b) Separate Trials. The court, in furtherance of convenience or
to avoid prejudice, or when separate trials will be conducive to
expedition and economy, may order a separate trial of any claim,
cross claim, counterclaim, or third party claim, or of any
separate issue or of any number of claims, cross
claims, counterclaims, third party claims, or issues, always
preserving inviolate the right of trial by jury as declared by the
Seventh Amendment to the Constitution or as given by a statute of
the United States.

Consolidation is permitted as a matter of convenience and economy
in administration, but does not merge the suits into a single
cause, or change the rights of the parties, or make those who are
parties in one suit parties in another. [Johnson v. Manhattan
Railway Supreme Court].

Consolidation can only take place when the actions are pending in
the same division of the same federal district court.

Advantages of consolidation:
easier to combine cases (more convincing for jury)
pooling resources

Disadvantages of consolidation:

loss of control over litigation

loss of fees by plaintiff’s lawyers

group trials generally result in lower verdicts per person

may be inefficient to try them all together. So, you may have to
split up trials at some point (i.e. combined liability trial and
separate trials on damages.)

Katz v. Realty Equities Corp. of New York (page 160)
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 whetther the anticipated benefits of a
consolidated complaint outwweigh potential prejudice to the
parties. Here, the appellants have not been prejudiced as a
result of the district courtt’s order requiring the filing of a
consolidated complaint for pretrial purposes.

Consolidation can create an action that very much resembles a
class action, but with a few differences:

consolidation is restricted to pending cases and cannot encompass
“future” parties as can a class action.

parties cannot opt out of a consolidated case, as they can in a
23(b)(3) class action.

the standards for award of attorneys fees may be different.


28 U.S.C. sec. 1404 Change of Venue

(a) For the convenience of parties and witnesses, in the interest
of justice, a district court may transfer any civil action to any
other district or division where it might have been brought.
(b) Upon motion, consent or stipulation of all parties, any
action, suit or proceeding of a civil nature or any motion of
hearing thereof, may be transferred, in the discretion of the
court, from the division in which pending to any other division in
the same district. Transfer of proceedings in rem brought by or
on behalf of the United States may be transferred under this
section without the consent of the United States where all other
parties request transfer.
(c) A district court may order any civil action to be tried at any
place within the division in which it is pending.
(d) As used in this section, “district court” includes the United
States District Court for the District of the Canal Zone; and
“district” includes the territorial jurisdiction of that court.
As amended Oct. 18, 1962, Pub.L. 87 845, sec. n9, 76A Stat. 699.

This is a gathering mechanism. Once you gather cases into the
same district, you can use Rule 42 to bring the cases together
into the same action.
Either plaintiff or defendant can move to transfer.

Ginsey Industries, Inc. v. I.T.K. Plastics, Inc. (page 173)
In considering a motion to transfer, a court must first determine
that the transferee discrict is a district where the action “might
have been brought.” Next, the question is whether the balance of
convenience weighs decisively in favor of one of the districts.
The rule is that unless the balance is strongly in favor of the
defendant, the plaintiff’s choice of forum should rarely be
disturbed [Gulf Oil v. Gilbert Supreme Court]. Here, transfer is
prompted by efficiency.
A sec. 1404(a) motion can be made at any time, although a delay is
a factor weighing against granting.
At least in diversity cases, the court to which case has been
transferred must apply the law that would have been applied in the
court that the action was transferred from [Van Dusen v. Barrack,
page 175]

Unresolved issues after Van Dusen:

which court’s law applies when you are dealing with federal
question cases?

Typically, defendants move to transfer venue since plaintiffs pick
the best forum for them. Who’s law applies when the plaintiff
moves to transfer? Ferens v. John Deere held that Van Dusen
applies even if the transfer is requested by the plaintiff.


A federal court has no power to transfer to another sovereign
court, and dismissal may be the only course in such a situation,
since the alternative foreign or state jurisdiction can be sought
by the parties.
In Gilbert, the Supreme Court set out a series of considerations
to guide the district court in applying the forum non conveniens
doctrine: initially, the district court must find that there
exists an adequate alternative forum for the litigation; the court
must then balance factors relative to the convenience of the
litigants, referred to as the private interests, and factors
relative to the convenience of the forum, referred to as the
public interests, to determine which available forum is most
appropriate for trial and resolution.

Factors which bear on the private interest of the litigants
include: the relative ease of acces to sources of proff;
availability of compulsory process for attendance of unwilling,
and the cost of obtaining attendance of willing, witnesses;
possibility of view of premises, if view would be appropriate to
the action; and all other practical problems that make trial of a
case easy, expeditious and inexpensive. There may also be
questions to the enforceability of a judgment if one is obtained.
The courts should weigh relative advantages and obstacles to trial

De Melo v. Lederle Laboratories (page 177; 8th Cir. Ct. App.)
Here, court said that Brazil was the proper forum for the suit and
not Minnessota, and dismissed the Minessota action, on several
conditions agreed to by defendant in reference to the suit in


sec. 1407 governs Multidistrict litigation. Itt provides that
“When civil actions involving one or more common questions of fact
are pending in different districts, such actions may be
transferred to any districtt for coordinated or consolidated
pretrial proceedings.” The transfers are made by the Judicial
Panel on Multidistrict LItigation which consists of seven circuit
and district judges designated by the Chief Justice of the U.S.
(no two of whom may be from the same circuit.) Further provisions
require that at or before completion of pretrial proceedings, each
action shall be remanded to the district in which it originated,
“unless it shall have been previously terminated.”

In Re Aviation Products Liability Litigation(page 188; Panel on
Multidistrict Lit.)
Here, there were civil actions involving one or more common
questions of fact which were pending in more than one district
(helicoptter engines). Transfer pursuant to 1407 is for pretrial
purposes only and the fact that all parties are not amenable to
suit in a particular district does not prevent transfer to that
district for pretrial proceedings where the prerequisites of 1407
are otherwise satisfied. Venue, then, is not a criterion in
deciding the propriety of transfer under 1407. Here, court says
the Indiana court is the baset transferee site, since it is both
geographically good and the judge knew the most about the cases.
1407 also authorizes the Panel to “separate any claim” from the
transferred action and to remand that claim to the transferor

Transferee judge has authority to decide all pretrial motions,
including motions that may be dispositive, such as motions for
judgment approving a settlement, for dismissal, for judgment on
the pleadings, for summary judgment, for involuntary dismissal
under Rule 41(b) and to quash service of process.

In Re Uphohn Co. Antibiotic Cleocin Products Liability
Litigation(page 200; 6th Cir)
ISSUE: To what extent can a transferee judge in proceedings under
1407 vacate and modify protective orders earlier entered by
transferor courts, where those orders enjoin the use of discovery
materials obtained through the federal litigation by others not
parties to the multidistrict litigation.

HELD: The transfer divests the transferor court of any further
authority, at least in matters pertaining to discovery. The
power of the transferee judge includes the power to modify a
protective order.
Some courts hold that transferee courts should decide substantive
issues in the way the transferor courts would have decided. Other
courts disagree.


Either federal or state court, in duplicative cases, can decline
jurisdiction or stay the proceedings before it so that the other
court can proceed, or can enjoin the parties from proceeding in
the other court, thus allowing it to proceed unimpeded with the
case before it.
Under the constitution, states cannot limit the jurisdiction of
the federal courts. Thus, they cannot enjoin proceedings in the
federal court. Federal courts, in many cases, can enjoin state
court proceedings.


Under the Burford type abstention , a court essentially defers to
a state’s overriding interest in the matters sub judice, and ,
concomittantly, to the supedrior competence of the state’s courts
to adjudicate such matters. Thus, usually at issue in Burford
type cases are state regulatory matters such as regulation of
natural resources, education, or eminent domain, where a paramount
state interest is apparent, where the history of state judicial
experience in the area indicates special reliability, or, even
absent an established regulatory scheme, where the intrustion of
federal adjudication mightt handicap state government. There is
no requirement of a state issue nor unclarity in pertinent state
law. Rather, tthe court relegates a federal issue to state court
adjudication because the federal issue touches some overriding
sttate interest. Moreover, a court abstaining under Burord
normally dismisses the case.

Under the Pullman type abstention, the goal is to avoid
unnecessary federal constitutional challenge to state law. This
requires tthe presense of a state issue and unclarity in pertinent
state law. Also, the proceedings are stayed.

An England reservation allows a litigant to return to the federal
court for a de novo determination of its reserved federal claims
once the state proceedings are over. It ordinarily avoids the
preclusive effect of an adverse state determination, even one that
directly rejects its stayed federal claims.

You would never use Pullman abstention in states where there is a
certification procedure.

BT Investment Managers, Inc. v. Lewis (page 209; 5th Cir. Ct.
When a state statute can be challenged under essentially identical
state and federal constitutional provisions, abstention is
improper. Burford
type abstention is improper here. There is no overriding state
interest, special state competence, or threat to Florida’s
administration of their own affairs that would warrant denial to
the chosen federal forum.


Apply only if there is related state court proceedings.

Pennzoil Co. v. Texaco, Inc. (page 214; Supreme Court)
ISSUE: Whether a federal district court lawfully may enjoin a
plaintiff who has prevailed in a trial in a state court from
executing the judgment in its favor pending appeal of that
judgment to a state appellate court.
HELD: Younger abstention applies when the State’s interests in the
proceedings are so important that exercise of the federal judicial
power would disregard the comity between the States and the U.S.
Government. Another reason is to avoid unwarranted determination
of federal constitutional questions. Federal injunctions would
interfere in these cases with the execution of state judgments,
and they would do so on grounds that challenge the very process by
which those judgments were obtained. So long as those challenges
relate to pending state proceedings, proper respect for the
ability of state courts to resolve federal questions presented in
state court litigation mandates that the federal court stay its
hand. Here, Texaco apparently did not give the Texas courts an
opportunity to adjudicate its constitutional claims, and because
Texaco cannot demonstrate that the Texas courts were not then open
to adjudicate its claims, there is no basis for concluding that
the Texas law and procedures were so deficient that Younger
abstention is inappropriate. The District court here should have

[Younger concerned criminal proceedings, and courts equiate that
to civil. In dissent, Brennan and Marshall argued that it
generally concerns criminal proceedings.]
Younger only applies to pending state proceedings. However, the
state proceeding may be initiated after the filing of the federal
A state may wave the Younger doctrine, since it is not
The Colorado River abstention is premised entirely on efficiency

Criticisms of Younger:

would stay courts be very insulted? probably not

There is a question about parity. Maybe state judges are not as
competent and sensitive in dealing with federal constitutional
matters as is the federal court.

State trials will generally not receive review in federal court.
Younger insures that there will rarely be federal review of state


Life Link International, Inc. v. Lalla (page 227)
The court should consider [as per Colorado River] several factors:
(a) which court first assumed jurisdiction over any property; (b)
the inconvenience of the federal forum; (c) the desirability of
avoiding piecemeal litigation; and (d) the order in which
concurrent jurisdiction was obtained. Also, the adequacy of the
state court proceedings ttto protect the parties’ rights must be
considered, as well as whether issues of federal law are
presented, and whether the attempt to invoke federal jurisdiction
was done in bad faith. [Cone v. Mercury]. Thus, the key is WISE
Most courts have found that when defendant wants a federal court
to hear his counterclaim, we ought to bypass Colorado River
efficiency and give him the opportunity to raise the counterclaim
in federal court.


28 U.S.C. sec. 2283

Stay of State Court Proceedings
A court of the United States may not grant an injunction to stay
proceedings in a State court except as expressly authorized by Act
of Congress, or where necessary in aid of its jurisdiction, or to
protect or effectuate its judgments.

The first exception
“as expressly authorized by Act of Congress” has been interpreted
as not requiring specific reference to 2283 in a statute {Mitchum
v. Foster Supreme Court, Page 234].

The second exception
“where necessary in aid of its jurisdiction” has traditionally
been applied when the “federal court’s jurisdiction is òòin remóó
and the state court action may effectively deprive the federal
court of the opportunity to adjudicate as to the res.” [Standard
Microsystems v. Texas Instruments Supreme Court, page 234].

The third exception
“to protect or effectuate its judgments” allows an injunction to
prevent relitigation of a suit in which a judgment has been
entered. Rule 54(a) defines judgment as “any order from which an
appeal lies.”

This applies principally in two cases. (1) to prevent re
litigation of a claim that has been decided in federal court. You
can simply also raise res judicata as a defednse in the second
Federal court can enjoin B from raising a claim in state court
that should have been a compulsory counterclaim in the first sui
in federal court.
The effect of 2283 cannot be avoided by simply enjoining a party
from prosecuting his state suit, as opposed to having the federal
court stay the state court proceeding. However 2283 does not
prohibit an injunction against a state officer who is about to
institute proceedings to enforce an unconstitutional statute nor
against state proceedings in which the state court is not
performing a judicial function.

Standard Microsystems Corp. v. Texas Instruments, Inc. (page 234;
2nd Cir. Ct. App.)
The suits at issue here are in personam actions, brought on
successive business days in two different courts, disputing the
interpretation of a contract. The existence of the state court
action does not in any way impair the jurisdiction of the federal
court or its ability to render justice.
In Atlantic Coast Line Railroad Co. v. Locomotive Engineers, the
Supreme Court said that “any doubts as to the propriety of a
federal injunction against statte court proceedings should be
resolved in favor of permitting the state courts to proceed in an
orderly fashion to finally determine the controversy.”

Bruce v. Martin (page 241; S. D. New York)
Here the threat to the court’s jurisdiction arises not from the
prospect of parallel proceedings and the potential for a prior
state decision to be asserted as res judicatta.
Rather, the potential harm to the court’s jurisdiction arises from
multiple actions in different states. A court of equity may
grantt an injunction to avoid mulotiple actions at law if the
actions involve the same issues of law and fact so that the
decisions in one action will be determinative of all. Here,
injunction is granted, because commencement of multiple lawsuits
would interfere with proceedings of this court “as to seriously
impair this court’s flexibility and authority to decide this

Here, there were no oending state court suits, only threatened
suits, and therefore the Anti Injunction Act did not apply.
Nevertheless, the court considered Anti Injunctiton Act



Rule 23(a) sets out for prerequisites for a class action generally
termed numerosity, commonality, typicality, and

Kline v. Coldwell, Banker & Co. (page 275; 9th Cir. Ct. App.)
Here, attorney probably made up the idea of class action, since
damages for high commissions in real estate sales were only
several thousand dollars, while a class suit could bring in $750
million. Court refused to certify a 23(b)(3) class.
Sometimes, even if class action not beneficial to class,
deterrence suggests that it ought to be allowed anyway, even if
attorney is the one making the most money.


Simer v. Rios (page 282; 7th Cir. Ct. App.)
Here, serious problems existed in defining and identifying the
members of the class. Here “state of mind” makes it diffucult to

Dissent argues that w/o class certification, the injured will not
receive relief, since suits would be impractical for $250.
“fail safe class” is a class which would be bound only by a
judgment favorable to plaintiffs but not by an adverse judgment.
[i.e. persons injured by defendant's illegal price fixing scheme.]
So, if P wins, all class members can enforce. If D wins, they are
not illegally price fixing and so other plaintiffs can claim the
first class excluded them.


Board of Education of Township High School v. Climatemp, Inc (N.D.
Here, the number of entities potentially victimized is not so
numerous [50 or so] that intervention or joinder of plaintiffs is
impractical. While joinder has been held to be impracticable with
as few as 40 members of a class, class actions have not been
maintainable with as many as 350 potential members. There are no
magic number; should consider other factors such as geographical
location of the potential plaintiffs.

Some courts have found numerosity satisfied “if joinder would
result in a burden to the case, be it the cost to the plaintiff of
serving each defendant, or the taxation of court resources due to
numerous motions filed by several hundred defendants.” [Alexander
Grant & Co. v. McAlister]

Some courts have also found impracticability of joinder if the
class is so large that individual influence over pleading,
discovery, and litigation strategy is effectively eliminated.
[Alexander Grant v. McAlister].

Some courts hold that reluctance by class members to undertake
litigation or a small monetary interest are grounds for satisfyin
the numerosity requirement. [Arkansas v. Board of Education
certified 1 7 black teachers.] Other courts disagree, such as
Christiana Mortgage v. Delaware Mortgage Bankers Association,
where joinder was not found impracticable where a class action was
sought on behalf of 28 mortgage brokers alleging antitrust
violations by the defendant association. The court found no
relucttance by individual class members to sue, and since all the
class members were “located within a small geographic area, any
other interested mortgage brokers could seek joinder into the
present suit rather than commencing a new action in a different
district, and could thereby minimize the duplication of discovery
and pre trial proceedings.]


The issue of commonality is often discussed in Rule 23(b)(3) cases
in conjunction with the issue of predominance of common questions

Blackie v. Barrack (page 296; 9th Cir. Ct. App.)
ISSUES: (1) whether a common question of law or fact unites the
class; (2) whether direct individual proof of subjective reliance
by each class member is necessary to establish 10b 5 liability in
this situation; and (3) whether proof of liability or damages will
create conflicts among class members and with named plaintiffs
sufficient to make representation inadquate.
HELD: The overwhelming weight of authority holds that repeated
misrepresentations of the sort alleged here satisfy the “common
question” requirement. Confronted with a class of purchasers
allegedly defrauded over a period of time by similar
misrepresentations, courts have taken the common sense approach
that the class is united by a common interest in determining
whether a defendant’s course of conduct is in its broad outlines
actionable, which is not defeated by slight differences in class
member’s positions, and that the issue may profittably be tried in
one suit.
The amount of damages is invariably an individual question and
does not defeat class action treatment. Individual questions of
reliance are likewise not an impediment subjective reliance is not
a distinct element of proof of 10b 5 claims of the type involved
in this case. Here, any conflict between class members is
peripheral and substantially outweighed by the class members’
common interests.
Subclassing can sometimes be a solution to commonality problems
caused by potential differences between class members. By
subclassing, additional named plaintiffs can be added to the suit
who represent a subclass with a more discrete commonality of
Under 23(c)(4)(B), a class may be divided into subclasses and
each subclass treatted as a class with the provisions of the rule
to be construed and applied accordingt to each class. Thus, there
must be a proper class representative for each subclass, and all
other requirements of Rule 23 must be satisfied.


General Telephone Company of the Southwest v. Falcon (page 321;
Supreme Court)
It is permissible for an employee complaining of one employment
practice to representt another complaining of another practice, if
the plaintiff and the members of the class suffer from essentially
the same injury [this is so in the 5th Circuit]. Here, claims
are based on national origin

employment discrimination of Mexican
Americans in hiring and promotion. Here, there was no typicality
as to hiring discrimination and class should not have been
certified. Court remands for further proceedings, instead of
dismissing the class claim.


Hansberry v. Lee (page 339; Supreme Court)
Members of a class not present as parties to the litigation may be
bound by the judgment where they are in fact adequately
represented by parties who are present, or where they actually
participate in the conduct of the litigation in which members of
the class are present as parties, or where the interest of the
members of the class, some of whom are present as parties, is
joint, or where for any other reason the relationship between the
parties present and those who are absent is such as legally to
entitle the former to stand in judgment for the latter. Here, a
restrictive agreement which required 95% signatures but had 54%,
was stipulated to contain 95% in an earlier lawsuit which was
lost. Court held that that stipulation cannot bind the parties
here, since they were not members of that class.

Piel v. National Semiconductor Corp (page 343; E.D. Pennsylvania)
3rd Circuit requires representatives to demonstrate (1) they have
no interests which are antagonistic to other members of the class,
and (2) their attorney is capable of prosecuting the instant claim
with some degree of expertise. [Wetzel v. Liberty Mutual].
The Wetzel rule is that a class representative need not be the
best of all possible representatives but rather one that will
pursue a resolution of the controversy with the requisite vigor
and in the interest of the class. A case by case approach is
Also, class representatives need to be adequately financed.


Rule 23(b)(1) the prosecution of separate actions by or against
individual members of the class would create a risk of
(A) inconsistent or varying adjudications with respect to
individual members of the class which would establish
incompatible standards of conduct for the party opposing the
class, or
(B) adjudications with respect to individual members of the class
which would as a practical matter be dispositive of tthe
interests of the other members not parties to the adjudications
or substantially impair or impede their ability to protect their

RULE 23(b)(1)(a)

This test looks to the impact on the party opposing the class and
whether separate actions would subject it to incompatible
Typical cases are suits by taxpayers to invalidate municipal
action or suits by shareholders to compel the declaration of a
Defendant classes may also be suitable for Rule 23(b)(1)(A)
Rule 23(b)(1)(A) is designed to protect against the nonclass party
‘s being placed in a stalemated or conflicted position and is
applicable only to actions in which there is not only a risk of
inconsistent adjudications but also where the nonclass party could
be sued for different and incompatible affirmative relief.
[Employers Insurance of Wausau v. FDIC E.D. Tenn].

Thus, in many cases “incompatible standards” classification is
If class members have already filed individual actions in state
court, the Anti
Injunction Act prevents the federal court from enjoining these
class actions in favor of a (b)(1) action.

RULE 23(b)(1)(B)


There are no opt out provisions for this class certification.

In Re School Asbestos Litigation (page 353; 3rd Cir. Ct. App.)
Here P argued that punitive damage awards would deplete D’s
coffers if cases proceeded individually. District court certified
a class based on punitive damage awards, but circuit court said
that class was under inclusive, since it omitted other parties and
this poses an obstacle to awards of punitive damages to other
parties. Court says that under inclusiveness in other cases may
not be enough to dismiss a class. Here, P never really proved the
likely insolvency of the defendant beyond an assertion.

23(b)(2) the party opposing the class has acted or refused to act
on grounds generally applicable to the class, thereby making
appropriate final injunctive relief or corresponding declaratory
relief with respect to the class as a whole

Rice v. City of Philadelphia (page 368; E.D. Pennsylvania)
Rule 23(b)(2) is designed to cover cases in which the primary
concern is the grant of injunctive or declaratory relief. In such
cases, there is no requirement that notice be given to all of the
class members, and there is no opportunity for putative class
members to “opt out”. Moreover, the precise definition of the
class is relatively unimportant. If relief is granted to the
plaintiff class, the defendants are legally obligated to comply,
and it is usually unnecessary to define with precision the persons
entitled to enforce compliance, since presumably at least the
representative plaintiffs would be available to seek, and
interested in obtaining, follow up relief if necessary. Defining
a class as consisting of all persons who have been or will be
affected by the conduct charged to the defendants is entirely
appropriate where only injunctive or declaratory relief is sought.
But, it is clearly unsatisfactory where damage claims are
asserted. It is true that damages may be awarded as ancillary or
incidental relief in a (b)(2) class action for injunctive or
declaratory relief. But the cases in which this has been
permitted appear to be cases in which the award of damages flows
automatically from the grant of injunctive or declaratory relief,
and in which the damages are subject to ready calculation on the
basis of a formula or principles uniformly applicable to the
class. Here, this is not the case. There are no advantages to
P to maintain this as a class action. Intervention can best
achieve the damages award goals. Thus, court says case could
proceed as (b)(2) but only on injunctive and declaratory relief,
and not on the question of damages.

The main operative differences between (b)(2) and (b)(3) class
actions are that the former are mandattory class actions and it is
not necessary for the court to find that common issues predominate
to certify the class, and that in the latter class members are
entitled to notice and an opportunity to opt out.

Offensive collateral estoppel
1) A v. B A prevails
2) A v. B

Suppose 2nd suit considers some issued decided in suit 1 such as
where B is from. B will be collaterally estopped from litigating
that issue in the second lawsuit.
1) A v. B
2) C. v. B

This is offensive use of collateral estoppel, when C prevents B
from relitigating certain issues.


Rule 23(b)(3)
the court finds that the questions of law or fact common to the
members of the class predominate over any question affecting only
individual members, and that a class action is superior to other
available methods for the fair and efficient adjudication of the
controversy. The matters pertinent to the findings include: (A)
the interest of members of the class in individually controlling
the prosecution or defense of separate actions; (B) the extent and
nature of any litigation concerning the controversy already
commenced by or against members of the class; (C) the desirability
or undesirability of concentrating the litigation of the claims in
the particular forum; (D) the difficulties likely to be
encountered in the management of a class action.

Mertens v. Abbot Laboratories (page 373; D. New Hampshire)
Here, class action is denied. A general determination of a right
to recover could not aid any particular plaintiff, until liability
and damages to that plaintiff are also determined. Indeed,
disparate diagnosed injuries were suffered by each of the named
female plaintiffs in this action. What could be established by a
plenary trial of the scientific data would not be helpful to an
individual plaintiff until causation of a particular personal
injury by a particular defendant was also established. It is
difficult therefore to perceive how the expense of individual
litigation could be avoided, class action or not. Furthermore,
the argument based upon litigation expense pales in light of the
ad damnum sought by Plaintiffs in this action.
Assuming that predominant common questions can be found, 23(b)(3)
directs the court to determine whether class acting treatment is
superior to individual litigation.

Jenkins v. Raymark Industries, Inc. (page 379;5th Cir. Ct. App.)
Here, district judge certified class members for purposes of
applicability of the “state of the art” defense in asbestos
litigation. Commonality threshold is not high

rule requires only that resolution of the common questions affect
all or a substantial number of the class members. Typicallity and
representativeness are also met here. So, this is fair here.


Marcera v. Chinlund (page m387;2d Cir. Ct. App.)
Here, defendant class, represented by one sheriff, should have
been certified because the defenses are typical of those of the
other sheriffs and their interests would be protected. The
differences among jails do not render the cost and security
defenses raised by the sheriff atypical of those of his class.
Further, Rule 23(a)(4) does not require a willing defendant
representative, but an adequate one. Here, the legal issues as to
liability are entirely common to members of the defendant class,
and there is little reason to fear unfairness to absentees.

Thillens, Inc. v. Community Currency Exchange Assoc. of Illinois
(page 392; N.D. Ill)
A defendant class may be certified if due process is satisfied.
There are several rules common to all certifications of defendant
classes: (1) a defendant class will not be certified unless each
named plaintiff has a colorable claim against each defendant class
member; (2) a defendant class will not be certified under 23(b)(3)
without a clear showing that common questions do in fact
predominate over individual issues; (3) the requirement that each
named plaintiff must have a claim against each defendant may be
waived where the defendant members are related by a conspiracy or
“juridical link” ( some legal relationship which relates all
defendants in a way such that single resolution of the dispute is
preferred to a multiplicity of similar actions.). Absent such
juridical link, a defendant class fails the Article II test
requiring a case or controversy to support the assertion of

Here, there are both legal and factual questions common to the
proposed class of defendants. It is sufficient for class
certification that the common questions be either of fact or law.
Not all factual or legal questions raised in the lawsuit need be
common so long as a single issue is common to all class members.
There is further a typicality of defenses. Also, the Association
is an adequate representative of the class. Under 23(a)(4), the
test is: (1) the representative must be able to conduct the
litigation and (2) the representative’s interests must not be
antagonistic to those of the class members. Although the
representative need not be a member of the class, there is the
further requirement that the class representative must have
injured the plaintiff in the same way as other defendants have
injured him. Here, that is the case. The real concern with a
reluctant representative should be for his ability to carry the
expense and other practical burdens of a class defense. Here,
they are able to do so.


Simer v. Rios (page 401; 7th Circuit Ct. App.)
Fluid recovery is used where the individuals injured are not
likely tto come forward and prove their claims or cannot be given
notice of the case. In a fluid recovery the money is either
distributed through a market systtem in tthe way of reduced
charges or is used to fund a project which will likely benefit the
members of the class. But, a case by case approach is necessary
to such awards. The focus is whether the use of such a mechanism
is consistent with the policy or policies reflected by the statute
violated. In other words, to what extent the statute embodies
policies of deterrence, disgorgement, and Ý
compensation. First, the focus is on whether a fluid recovery is
needed to deter the defendant from illegal conduct. The answer
here is no. CSA has been charged with administering a large and
complex program and it is inevitable that problems arise.

There is no indication that CSA’s actions have been in bad faith
or with the specific intent of disobeying itts statutory
obligation. The second factor, that of disgorging illegally
obtained profits, also counsels against use of fluid recovery.
Those cases where a corporate defendant engages in unlawful
conductt and illegally profits is most appropriate for a fluid
recovery. Here, neither CSA, nor any shareholders, benefitted
financially from the alleged illegal conduct. The money CSA
refused to spend merely reverted to the Treasury. Thus, this is
not a case where the defendant would retain illegally obtained
profits. Finally, whether the statute has a compensatory factor
is important. Here it does, but Congress funded a much larger
program and therefore the absence of fluid recovery will not
deprive plaintiffs of relief.

23(c)(2) & (d)

Eisen v. Carlisle & Jacquelin (page 425; Supreme Court)
Rule 23(c)(2) provides that, in any class action maintained under
(b)(3), each class member shall be advised that he has the right
to exclude himself from the action on request or to enter an
appearance through counsel, and further that the judgment, whether
favorable or not, will bind all class members not requesting
exclusion. To this end, the court is required to direct to class
members “the best notice practicable under the circumstances,
òòincluding individual notice to all members who can be identified
through reasonable effort.” Thus, individual notice must be sent
to all class members whose names and addresses may be ascertained
through reasonable effort. Here, the names and addresses of
2,250,000 class members are easily ascertainable, and there is
nothing to show that individual notice cannot be mailed to each.
Thus, this is clearly the “best notice practicable” within the
meaning of Rule 23(c)(2). Nothing says notice should be given
only to the extent the particular plaintiff can afford it

Petitioner must bear the cost of notice to the members of his
class. Where petitioner will not bear cost of notice, case can be
dismissed, as the court orders done here.


In Re Fibreboard Corp. (page 888; 5th Cir. Ct. App.)
Here, there are too many disparities among the various plaintiffs
for ttheir common concerns to predominate. The plaintiffs suffer
from different diseases, some of which are more likely tto have
been caused by asbestos than others. The plaintiffs were exposed
to asbestos in various mannters and to varying degrees. The
plainttiff’s lifestyles differed in material respects. Thus,
Phaze II, which selected 41 representative plaintiffs for trial
out of over 2,000 and then would base future awards for the others
on the average from these trials was not allowed by the court.

Cimino v. Raymark Industries, Inc. (page 892; E.D. Texas)
Damages mustt be determined in the aggregate for all cases,
otherwise the courts cannot try asbestos cases. Here, the judge
revised the proposal from the Phaze II of the previous case


The American rule excludes counsel fees from recoverable costs.
Under the English rule, counsel fees are recoverable costs in a

A common fund is where the litigation activities of one person
created a fund for a number of other persons or conferred a
benefit on them. Thus, courts allow the litigant to recover from
the fund the attorney’s fees incurred in creating the fund.

Defense class members may also be required to contribute to the
counsel fees of the representative of the defendant class.
The Supreme Court has held that counsel fees can be awarded to a
successful party when his opponent has acted in bad faith,
vexatiously, wantonly, or for oppressive reasons. [fee shifting].
The bad faith must be found in the conduct of the litigation, not
the conduct giving rise to the underlying claim.
Where plaintiff plays the part of a private attorney general, such
as interest groups suing for particular actions, there can be fee
shifting [Alyeska Pipeline v. Wilderness Society ; page 775]
There is nothing, despite the American rule, to keep parties from
providing in a contract that in the event of litigation arising
under the contract the prevailing partty shall recover his
attorney’s fees. Some states provide that where the contract
confers this right on only one party, it should nevertheless be
Legislatures may make statutory exceptions to the American rule,
and award fee shifting without bad faith on the part of the other

Antitrust. Successful plaintiffs in antitrust suits are entitled
to recover their attorneys’ fees as well as treble damages. 15
U.S.C.A. sec. 26.

Civil Rights. Under the 1964 Civil Rights Act, prevailing parties
are entitled to recover their attorneys’ fees. Also, Civil Rights
Attorney’s Fee Awards Act of 1976 authorizes the district courts
to award a reasonable attorney’s fee to prevailing parties in
civil rights litigation


In Lindy Brother Builders v. American Radioator & Standard
Sanitary, the 3d Cir. Ct. App. emphasized an hourly approach,
concluding tthat the product of hours spent on a case times hourly
rate “should be the lodestar of the court’s fee determination.”
This figure could then be increased or decreased on the basis of
the quality of the lawyer’s work and success, and on the basis of
the contingency of the action.

Reasons to reject lodestar:
1) takes a lot of time to determine what a reasonable hourly rate
2) in common fund, there is no adversarial contest over what is a
reasonable attorney’s fee.
3) the fee is usuallly in 20 30% range anyway
4) lodestar is thought to encourage long hours and discourages
incentive to settle early.
The rate of compensation for public interest lawyers is generally
measured by the prevailing market rates that private lawyers would
receive (associates.)

5th Circuit adopted a 12 factor billing approach:
1) the time and labor required
2) the novelty and difficulty of the questions
3) the skill requisite to perform the legal service properly
4) the preclusion of employment by the attorney due to acceptance
of the case
5) the customary fee
6) whether the fee is fixed or contingent
7) time limitations imposed by the client or the circumstances
8) the amount involved and the results obtained
9) the experience, reputation, and ability of the attorneys
10) the “undesirability” of the case
11) the nature and length of the professional relationship with
the client
12) awards in similar cases

Hensley v. Eckerhart (page 778; Supreme Court)
ISSUE: Whether a partially prevailing plaintiff may recover an
attorney’s fee for legal services on unsuccessful claims.
HELD: Plaintiffs may be considered prevailing parties for
attorney’s fees purposes if they succeeded on any significant
issue in litigation which achieves some of the benefit the parties
sought in bringing suit [Nadeau v. Helgemoe]. Should start with
the number of hours reasonably expended on the litigation,
multiplied by the reasonable hourly rate. Should exclude hours
that were not reasonably expended. Court can adjust this fee
upward or downward, including the important factor of the “results
obtained.” Two questions are important. First, did tthe
plaintiff fail to prevail on claims that were unrelated to the
claims on which he succeeded? Second, did the plaintiff achieve a
level of success that makes the hours reasonably expended a
satisfactory basis for making a fee award? The court has
discretion. Here, court did not want to separate loosing and
winning issues, arguing that many were interrelated, and made one
fee award. But, the Supreme Court said that court must evaluate
the level of success in comparison to the litigation as a whole.
Where the plaintiff has failed to prevail on a claim that is
distinct in all respects from his successful claims, the hours
spent on the unsuccessful claim should be excluded in considering
the amount of a reasonable fee. Where a lawsuit consists of
related claims, a plaintiff who has won substantial relief should
not have his attorney’s fee reduced simply because the district
court did not adopt each contention raised. But where the
plaintiff achieved only limited success, the district court should
award only that amount of fees that is reasonable in relation to
the results obtained.
Supreme Court adopted the Lodestar and not the 12 factor test.
Supreme Court said that the multiplier for good work should only
be used in exceptional cases. Fee awards to be
increased/decreased by:

QUALITY ENHANCEMENT. The attorney did well or poor in the trial.

CONTINGENCY ENHANCEMENT. Multiply, using the notion that it was
against attorney’s interest to take the case. The Supreme Court
has held that a multiplier greater than 1/3 of lodestar requires
special consideration and should rarely be used.
Disadvantages of lodestar are on page 793.

In Re Activision Securities Litigation (page 794; N.D. California)
In class action common fund cases, the better practice is to set a
percentage fee and that, absent extraordinary circumstances that
suggest reasons to lower or increase the percentage, the rate
should be set at 30%. This will enourage plaintiffs’ attorneys to
move for early settlement, provide predictability for the
attorneys and the class members, and reduce time consumed by
counsel and court in dealing with voluminous fee petitions. [court
surveyed the lodestar and 12 step test and found those awards
ranged close to the 30% mark anyway.]

Matter of Superior Beverage/Glass Container Consolidated Pretrial
(page 797;N.D. Ill)]
The problem with fixed percentages is that they will drastically
overcompensate lawyers in some cases and drastically
undercompensate them in others. Lodestar has some advantages and
disadvantages, but courts should evaluate based on the size of the
award/settlement. No fee award should either fleece the class of
its recovery or result in a windfall to their lawyers in excess of
any efforts those counsel made or risks they ran.

by: Ross E. Kimbarovsky

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