Federal Civil Procedure Flashcards
Civil Procedure Analysis
(1) Where to file?
- Personal Jx
- Subject matter Jx
- Venue
(2) Applicable Substantive Law?
- Eerie Doctrine
(3) How to file?
- Service of Process
- Pleadings
(4) Obtain Information?
- Discovery
Personal Jurisdiction (PJ)
The Court’s power over the parties.
Two-Step Analysis:
(1) Exercise of PJ must first fall within a State statute -
(a) Is present in the forum state at the time of service;
(b) Is domiciled in the forum state;
(c) Has given express or implied consent to the jx; or
(d) Meets the requirements the forum State’s long arm statute or other statute.
(2) Must satisfy the Constitution (Due Process) -
Was there minimum contacts w/ the forum so jx does not offend traditional notions of fair play and substantial justice. Weigh:
(a) Contacts,
(b) Relatedness, and
(c) Fairness (only Specific PJ).
Long-Arm Statute
Requires the Defendant have:
(1) Sufficient minimum contacts w/ the forum state; and
(2) so as to not offend traditional notions of fair play and substantial justice.
Contact
There must be relevant “minimum contacts” between the Defendant and the forum state, two (2) factors addressed are:
(1) Purposeful Availment - Defendant purposefully availed herself of the forum state’s laws (targeting the forum, using the roads, establishing domicile, traveling, marketing); and
(2) Foreseeability - Defendant knew or reasonably should have anticipated that her activities in the forum made it foreseeable that she may be haled into court there.
Relatedness
Whether Plaintiff’s claim against the Defendant arises from or relate to Defendant’s contact w/ the forum.
- Defendant’s contact caused the harm to the Plaintiff.
*If the answer is yes, then it is Specific PJ. Then apply reasonableness test.
If answer is no, the only way to proceed is w/ General PJ over Defendant, which requires the D to have registered to do business or be “at home” in the jx.
General PJ - Individuals and Corporations
General PJ allows Defendant to be sued in this particular forum rising out of a claim anywhere in the world.
Defendant either must be “at home” in the forum or must have registered to do business in the state and have an appointed an agent for service of process there.
A human is “at home” where s/he is domiciled. Only one location.
Corporation is subject to general PJ where:
(1) State in which it is incorporated;
(2) State in which it has its Principal Place of Business (PPB).
Specific PJ
Personal Jurisdiction is specific to the claims that arose from the Defendant’s limited contacts w/ the forum state.
There must be purposeful contact out of which the claim arose.
Note: Foreseeable acts of another is not a purposeful contact with X state.
Fairness (Test for Specific PJ only)
Whether PJ would be fair (or reasonable) under the circumstances. Weigh the following:
(1) Burden on the Defendant and the witnesses;
(2) State’s interest, and
(3) Plaintiff’s interest.
For the first factor, Defendant must show it puts her in a severe disadvantage in the litigation.
Second - Forum state may want to provide a courtroom for its citizens who are allegedly being harmed by out-of-state Defendants. Idea State wants to protect its citizens.
Third - Plaintiff may be injured and unable to travel to another State.
Quick Summary of PJ (3) Steps
(1) Contact - Purposeful Availment + Foreseeability
(2) Relatedness - Arises from or relates to cause of action. Determines if it’s general PJ or specific PJ
- If answer is yes, specific PJ.
(3) Fairness:
- Step only applies to specific jx
- Look to burden and convenience, state’s interest, Plaintiff’s interest
Notice/Service of Process
Notice consists of Two (2) Documents:
(1) A summons, which is a formal court notice of suit and the timing for response; and
(2) A copy of the complaint.
Service must take place 90 days of the filing of the complaint, period may be extended for good cause.
*Any person who is at least 18 yrs old and not a party to the action may serve process.
NOTE: Service need not comply with state law!
Process Served
(1) Personal Service - Process is given to the Defendant personally anywhere;
(2) Substituted Service - Can be done only:
* At the Defendant’s usual place of abode;
* With someone of suitable age and discretion;
* Who resides there (do not need to be related to the D)
Waiver of Service of Process
Defendant can waive service of process. To request this waiver, the Plaintiff mails the Defendant a notice and request to waive service. The Plaintiff must include:
(1) A copy of the complaint;
(2) Two copies of the waiver form; and
(3) Prepaid means of returning the form.
Defendant must execute and mail the waiver form to Plaintiff within 30 days. (60 days if outside of U.S.)
*A Defendant who waives service of process does not waive any defenses like lack of PJ.
Waiver becomes effective when the Plaintiff files the waiver in Court.
Waiver of Service Provides Defendant Extra Time to Respond to the Complaint
Defendant has 60 days after Plaintiff mails the complaint, instead of 21 days.
Penalty for Failing to Waive Service
Defendant’s failure to return the waiver form and D does not have good cause, D must pay the cost of service.
Immunity for Service of Process
If Defendant appears as a party, witness, or attorney in a different civil case in the State, D cannot be served w/ process for a civil case in federal court in that state. D is immune from service of process.
Subject Matter Jurisdiction (SMJ)
The court’s power over the case. Federal courts have limited SMJ, so they can only hear certain kinds of cases:
(1) Federal Question jurisdiction; or
(2) Diversity of citizenship jurisdiction (or alienage jx).
- Complete diversity of citizenship among all Plaintiff(s) and Defendant(s); and
- Amount in controversy exceeds $75,000.
As a general rule, State courts can hear any kind of cases EXCEPT:
(1) patent infringement;
(2) bankruptcy;
(3) some federal securities; and
(4) antitrust claims.
A lack of SMJ cannot be waived. If a case does not invoke Diversity or Federal SMJ, the federal court cannot hear the case. If it does, the judgment is void.
Establishing New Domicile
Two (2) Requirements:
(1) Physical presence in the new domicile; and
(2) Intent to make that place your home for the indefinite future.
Court looks at all relevant factors - taking a job, purchasing a house, joining civic orgs, registering to vote, etc.
Citizenship for Unincorporated Associations, Decedents/Minors/Incompetents/Class Actions
(1) Citizenship of an unincorporated association takes on the citizenship of all of its members;
(2) Decedents, minors, and incompetent persons must be sued through a representative, however the representative’s citizenship is irrelevant - use the citizenship of the decedent, minor, or incompetent;
(3) Class actions the citizenship of the named representatives of the class is used.
Aggregation of Claims
To meet the jx amount of over $75,000, any single plaintiff may aggregate all of her claims against a single defendant. The claims do not have to be related.
- Do NOT aggregate for ONE P v. multiple Ds UNLESS jointly liable
- P1 (60k negligence) and P2 (40k battery) v. D = do NOT aggregate UNLESS Ps enforcing common or undivided interest
- P1 (40k negligence, 40k breach k), P2 (60k battery) = aggregate ONLY P1 claim
Equitable Relief
Includes the issuance of an injunction, specific performance, recession of a contract, etc.
Two (2) tests are used:
(1) Plaintiff’s viewpoint - If granted, does the relief requested have a value of more than $75,000 to the P?
(2) Defendant’s viewpoint - If granted, does the relief requested by the P cost the Defendant more than $75,000?
Federal Question (FQ) Cases
Federal Question jx, Plaintiff’s claim must arise under federal law. For FQ cases:
(1) Citizenship of the parties is not relevant;
(2) Amount in controversy is not relevant; and
(3) Pleader must follow the well pleaded complaint rule. The claim itself must arise under federal law.
Unless the exam Q states the claim is based on federal law, regular tort, contract, and property claims are NOT federal and arise under state law.
Removal
If Plaintiff sues a Defendant in state court, but that Defendant would prefer to litigate in federal court, the Defendant might be able to remove the case to federal court. (Federal Q or diversity jx must exit)
Removal Procedure:
(1) D must file notice of removal in federal court, stating grounds of removal (FQ or diversity jx);
(2) Attach all documents that were served on her in the state action;
(3) D then promptly serves a copy of the notice of removal on adverse parties and files a copy of the notice of removal in state court;
(4) D must remove no later than 30 days after service of the first paper that shows the cased is removable.
If the removal was improper, the federal court can remand the case to state court.
Joining in the Removal
All Defendants who have been served with the process must join in removal. If they are served at different times, and a later served D initiates timely removal, the earlier served D may join the removal even though her 30-day period for initiating removal may have expired.
Note: Plaintiffs cannot remove. This is true even if Defendants counterclaim.
Limitation for Removal on Diversity jx
The case should not be removed if:
(1) Defendant is a citizen of the forum state (in-state Defendant rule); and
(2) It has been more than one year after the case was filed in state court.
Supplemental Jurisdiction
A party may use supplemental jurisdiction to have his claim heard (even if it’s not a FQ or diversity) in Federal Court if the claim meets the Common Nucleus of Operative Fact Test, unless the claim is:
(1) Asserted by a Plaintiff;
(2) In a diversity case; and
(3) Asserted against a citizen of the same State as the Plaintiff.
Note: Plaintiffs cannot invoke supplemental jurisdiction in diversity cases even if they met common nucleus test. However, * Exception to limitation - However, a co-plaintiff with a below-limit claim generally can use supplemental jurisdiction to have his claim heard in federal court so long as the co-plaintiff’s presence in the suit does not destroy complete diversity.
Federal Court, which Law Applies (Eerie Doctrine)
What type of law should the Federal Court apply in a diversity case?
Is there some federal law (Constitution, federal statute, FRCP, FRE) on point that directly conflicts with state law? If so, apply federal law as long as it is valid (Supremacy clause)
A Federal Court in a diversity case will apply Federal procedural rules, but the substantive law of the state in which it sits.
If there is no Federal law on point, the Federal Judge must apply State law if the issue is to be decided is substantive.
Substantive Law Issues:
(CREST)
(1) Conflict of law rules;
(2) Elements of a claim or defense;
(3) Statutes of limitation;
(4) Rules for tolling statutes of limitations; and
(5) The standard for granting a new trial because the jury’s damages award was excessive or inadequate
If there is no federal law on point and the issue is not one of the (5) listed above, the federal judge must determine whether the issue is substantive by weighing:
(BAD)
(1)Balance of interests;
(2) Avoid forum shopping;
(3) the outcome Determinative.
Venue Choice
Venue question is whether the proper geographic district is proper to bring an action.
The Plaintiff may lay venue in:
(1) A judicial district in which any defendant resides, if all defendants are residents of the state in which the district is located;
(2) A judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated; or
(3) if there is no district anywhere in the U.S. which satisfies either of the first two circumstances, a judicial district in which any Defendant is subject to the court’s personal jx w/ respect to the action.
Note: A substantial part of the claim can arise in more than one district - i.e. tort claim can arise where the injury occurred and where the product was manufactured.
If Defendant resides outside of the U.S., venue is proper in any federal district court, but if another Defendant does reside in the U.S., venue must be proper as to her.
Transfer of Venue
One trial court in a judicial system to another trial court in same judicial system.
The original court is the Transferor and the one to which the case is sent is the Transferee.
Transferee must be a proper venue and have PJ over the Defendant - and generally must be true without waiver by the Defendant.
Minor Exception - The Court can transfer to any district if ALL parties consent and the court finds cause for the transfer.
Transfer from a Proper Venue (Weighing Public and Private Factors)
If the original district is a proper venue, the court can order transfer based on convenience of parties and witnesses and in the interests of justice.
The burden is on the person seeking transfer.
The Court will consider both:
(1) Public; and
(2) Private factors
showing that another court is the center of gravity for the case.
(1) Public - What law applies, what community should be burdened w/ jury service, the desire to keep a local controversy in a local court.
(2) Private - Convenience. I.e. Court will look to where the Defendants and evidence are found.
Choice of Law Following Transfer from Proper Venue
When a diversity case is transferred from a proper venue, the Transferee court must apply the choice of law rules of the transferor court.
Forum Selection Clause (FSC)
Provision in which the parties agree that a dispute between them will be litigated in a particular place.
Key points to remember:
(1) Federal law enforces FSCs if they’re not unreasonable. Some states do not. But in federal court, federal law governs transfer. So a federal court may enforce an FSC clause even though a state court in that forum state would not;
(2) When there is a valid FSC, only public interest factors are considered for transfer; and
(3) When transfer is to enforce an FSC, the transferee court will apply its owns choice of law rules. The transfer does not carry the transferor’s choice of law rules with it.
Original Venue is Improper
The Court may transfer the interest of justice or dismiss. Usually, the court will transfer if possible.
When the federal court transfers a diversity case because the original venue is improper, the transferee applies its own choice of law rules.
Forum Non Conveniens (FNC)
Forum non convenient applies when there is another court that is the center of gravity for the case. But here, the Court cannot transfer the case to that court because it is in a different judicial system. The court invoking FNC will stay or dismiss the case.
Court applies both public and private factors
The other court must be available and adequate where Plaintiff can get remedy.
Complaint (Initial Pleading)
Filing of the complaint commences an action and must contain:
(1) A statement of grounds of SMJ;
(2) A SHORT and plain statement of the claim showing that the Plaintiff is entitled to relief (sufficient facts to support a plausible claim); and
(3) A demand of relief sought (i.e. Damages, injunction, declaratory judgment)
Plaintiff need not allege grounds for PJ or venue.
Note: For fraud, mistake, and special damages Plaintiff must plead with more detail; that is with (1) Particularity; or (2) Specificity.
Rule 12(b)(6) - Motion to Dismiss
Motions are not pleadings rather they are requests for a court order.
Defendant can challenge the complaint by making Rule 12(b)(6) motion to dismiss for failure to state a claim.
Waivable Defenses under Rule 12(b)
Some Rule 12(b) defenses are waived if not put in the first Rule 12 response (motion or answer) This includes: “PPPV”
(1) Lack of personal jurisdiction;
(2) Improper Venue;
(3) Improper Process (problem w/ the papers); and
(4) Improper Service of Process.
The following defenses can be raised later even if they are not included in the first response:
(1) Failure to state a claim and a failure to join an indispensable party. These motions can be made as late as at trial;
(2) Lack of SMJ may be raised at any time.
Rule 12(e) and Rule 12(f) Motions
(1) Rule 12(e) motion - Address issues of form when the complaint is so vague or ambiguous the Defendant simply cannot respond; must make this motion before answering;
(2) Rule 12(f) motion - Motion to strike asks the court to remove redundant or immaterial things from a pleading; and
(3) Any party can move to strike.
Denial of Rule 12 Motion
If a Defendant’s motion to dismiss under Rule 12 is denied, s/he must answer no later than 14 days after notice of denial.
Response to the Allegations in the Complaint
Defendant may:
(1) Admits some or all allegations;
(2) Deny some or all allegations; and
(3) State that s/he has insufficient knowledge to admit or deny some or all of the allegations. A party may not assert this if the answer to the allegation is in his/her control.
The failure to deny any allegation is an admission except regarding the amount of damages.
Amended Pleadings
Plaintiff has a right to amend her complaint once as of course no later than 21 days after the Defendant serves her first Rule 12 response.
Defendant has a right to amend his answer once as of course no later than 21 days of serving it. Can include waivable defenses and raise affirmative defenses.
After 21 days, the amending party must seek leave of court or get the written consent of the opposing party. The court will grant leave to amend if justice so requires weighing:
(1) Length of delay;
(2) Prejudice to the other party; and
(3) Futility of Amendment
Variance
When the evidence at trial does not match what was pleaded. If the other party fails to object at trial, the party introducing the evidence may move to amend the complaint to conform to the evidence.
Amendment after Statute of Limitations Has Run (Relation Back)
An amended pleading relates back if the pleading concerns the same:
(1) Conduct;
(2) Transaction; or
(3) Occurrence as the original pleading.
Relation back means you treat the amended pleading as though it was filed when the original was filed, so it can avoid a SOL problem.
Changing a Defendant (Wrong Defendant Sued)
The amendment will relate back if:
(1) The Amendment concerns the same conduct, transaction, or occurrence as the original;
(2) the Defendant had such knowledge of the case such that she will be able to avoid prejudice; and
(3) the Defendant knew or should have know that, but for a mistake, she would have been named originally.
Defendant must have had knowledge within the period of service of process (90 days after the filing of the complaint).
Supplemental Pleadings
Supplemental pleadings set forth things that happened after the pleadings were filed. There is no right to file a supplemental pleading. You must make a motion; whether that motion is granted is within the discretion of the trial court.
NO time limit re when it can be filed
NO need for it to be related to original action
Rule 11 Signature Requirement
Rule 11 applies to all papers except Discovery. When the Lawyer or Pro Se party signs documents, she certifies that to the best of her knowledge and belief, after reasonable inquiry:
(1) Paper is not for an improper purpose;
(2) Legal contentions are warranted by law or a nonfrivolous argument for a law change; and
(3) Factual contentions and denials of factual contentions have evidentiary support or are likely to after further investigation.
Sanctions
The purpose of sanctions is to deter a repeat of the conduct. If there is a violation, such as an assertion of a baseless claim, sanctions may be imposed against the party, the lawyer, and/or the lawyer’s firm.
Two (2) types of sanctions:
(1) Non-monetary - Requiring lawyers to attend professionalism classes;
(2) Monetary - Paid to the court, not to the other party.
The Court must give the sanctioned party an opportunity to be heard.
Safe Harbor Provision for R11 Sanctions
If the other party violates Rule 11, the opposing party cannot immediately file a motion for sanctions. Rather, she serves the motion on the other parties but does not file it with the court yet.
The party in violation has a safe harbor of 21 days in which to fix the problem and avoid sanctions.
If she does not do so, then the motion can be filed with the court.
Joinder by Plaintiff
Under the FRCO, claim joinder by the Plaintiff is easy because Plaintiff may join any additional claim she has against that adverse party - even if the additional claim is unrelated to the original claim. But, there must be: SMJ over the claim too.
Multiple Plaintiffs and Defendants
Claims by multiple Plaintiffs or against multiple Defendants must:
(1) Arise from the same Transaction or Occurrence (T/O); and
(2) Raise at least one common question of law or fact.
Necessary and Indispensable Parties
(1) Is the absentee necessary (or required)?;
(2) If the absentee is necessary, can the absentee be joined?; and
(3) If the absentee can’t be joined, can the case proceed anyway?
Necessary means that:
(1) Without the absentee, the court cannot accord complete relief among the existing parties; or
(2) The absentee’s interest may be harmed is she is not joined; or
(3) The absentee claims an interest that subjects a party (usually the defendant to a risk of multiple obligations.
Joinder of Absentee
If an absentee is labeled as necessary, a Court will see if joinder of the absentee is feasible. Joinder is feasible if:
(1) There is PJ over the absentee; and
(2) There will be federal SMJ over the claim by or against the absentee. In determining whether the claim invokes diversity, the court aligns the absentee as a Plaintiff or Defendant based on the absentee’s interest.
Absentee Cannot be Joined
However, if Absentee cannot be joined, the court then must determine whether to proceed without the Absentee or dismiss the entire case based on the following factors:
(1) Is there an alternative forum available?;
(2) What is the actual likelihood of harm to the Absentee?; and
(3) Can the court shape relief to avoid that harm to the absentee?
Do not necessarily need a necessary party’s presence to continue w/ the case. It’s just necessary to join him if feasible. But if the court decides to dismiss rather than proceed without the absentee, the absentee is called indispensable.
Counterclaim
A counterclaim is a claim against an opposing party. After the Defendant serves a counterclaim against the Plaintiff, the Plaintiff must respond under Rule 12 within **21 days **of service of the counterclaim.
There are two types of counterclaims:
(1) Compulsory; and
(2) Permissive.
There must be SMJ over the counterclaims, so you must assess whether the counterclaim can invoke Diversity jx or Federal Question. If no to both, check if there is supplemental jx.
Compulsory Claim
Compulsory claim is one that arises from the same T/O as the Plaintiff’s claim. Unless the counterclaimant has already filed the claim in another case, she must file the compulsory counterclaim in the pending case or the claim is waived.
Permissive Counterclaims
Permissive counterclaim is one that does not arise from the same T/O as the Plaintiff’s claim. Permissive means that a party is not required to file it in the case and can sue on the claim in a separate case.
Crossclaims
A crossclaim is a claim against a co-party. It must arise from the same T/O as the underlying action. But it is not compulsory; it can be asserted in another case.
Impleader Claim (Third-Party Practice)
Needs SMJ [diversity/FQ] and if that fails, try supplemental jdx.
An impleader claim is one where a Defendant is bringing in a new party for derivative liability. Defendant bringing the claim is called a third-party plaintiff and the new party is called a third-party defendant (TPD).
An impleader claim is used to shift to the TPD the liability that the Defendant will owe to the Plaintiff. So if the Defendant is found liable to the Plaintiff, he will try to get the TPD to pay all or part of his own liability.
Impleader claim is permissive, meaning that the Defendant need not bring it in the current case.
*Look for claims for indemnity or contribution.
Shareholder Derivative Actions
Plaintiff must allege in a verified complaint that:
(1) She was a shareholder at the time of the transaction complained of (or received her shares thereafter by operation of law);
(2) Action is not a collusive effort to confer jurisdiction on the court that it would otherwise lack; and
(3) She made a demand on the directors and, if required by state law, on the shareholders, or if she did not make such a demand, she gives the reasons why she did not make such demands.
Indemnity and Contribution re: Impleader
Indemnification - a contractual obligation of one party to compensate the loss incurred by another party.
Indemnity shifts liability completely so the TPD must cover the full claim.
Contribution shifts it pro-rata so the TPD must cover a pro-rata portion of the claim.
Process for Impleading TPD into the Case
Defendant must:
(1) File a third-party complaint naming the TPD; and
(2) Have that complaint formally served on the TPD.
There is a right to implead within 14 days of serving the answer. After that, court permission is needed.
TPD and Plaintiff May Assert Claims
After the TPD is joined, the Plaintiff may assert claims against the TPD, and the TPD may assert claims against the Plaintiff, that arise out of the same T/O as the underlying case.
Personal Jurisdiction Loophole
There is PJ over an impleaded party if he is served in a district in the U.S. and not more than 100 miles from the federal court that issued the summon regardless of his contacts with the forum. If more than 100 miles, there must be traditional contacts-based PJ.
Intervention
A nonparty absentee uses intervention to bring herself into the case. She chooses to come in either as a Plaintiff to assert a claim or as a Defendant to defend a claim.
The court may realign the intervening party if it thinks the absentee came in on the wrong side.
Application to intervene must be timely. Intervention can be of right or permissive.
Must assess whether the claim by/against the intervenor invokes diversity or FQ SMJ. If neither applies, then you try supplemental. But remember that a claim by an intervenor plaintiff in a diversity case is a claim by a Plaintiff, so the limitation on supplemental jurisdiction may apply.
Intervention of Right
If the absentee’s interest may be harmed if she is not joined, and that interest is not adequately represented by the current parties, intervention is “of right”.
Permissive Intervention
If the absentee’s claim or defense and the pending case have at least one common question of law or fact, intervention would be permissive and discretionary with court.
Permissive intervention is usually allowed unless it would cause delay or prejudice to someone.
Interpleader
Interpleader applies if separate actions might result in double liability against a stakeholder. An interpleader suit permits a person/stakeholder to require two or more adverse claimants to the stake to litigate amongst themselves to determine which, if any, has the valid claim to it.
There are two interpleader procedures in the Federal Courts: (1) Rule 22 and (2) Section 1335.
Rule 22 Interpleader
Requires:
(1) Complete diversity between the stakeholder and all adverse claimants and in excess of $75,000 in issue; or
(2) Federal Question claim.
Normal service and venue rules apply.
Section 1335 (Statutory Interpleader)
Requires only diversity between any two contending claimants and $500 be in issue.
Service may be nationwide and venue is proper where any claimant resides.
Allows to bring the action without specific PJ over defendants.
Class Actions
To qualify for a class action, all (4) of the following must be demonstrated:
(1) Numerosity meaning that there are too many class members for practicable joinder (no magic number);
(2) Commonality meaning there must be some issue in common to all class members, so resolution of that issue will generate answer for everybody in one stroke;
(3) Typicality where the class rep’s claims are typical of the claims of the class; and
(4) Representative adequate where the class rep will fairly and adequately represent the class.
Example Discrimination case w/ class of both applicants and former employees creates conflict of interest –> fails class action requirements
(3) Types of Class Actions
After satisfying the (4) requirements, the action still must fall into one of the (3) types of class actions:
(1) Type 1 (Prejudice) - Class treatment is necessary to avoid harm (prejudice) either to class members or to the non-class party. These types of class actions are rare;
(2) Type 2 (Injunctive or Declaratory Relief) - Type 2 class actions seeks an injunction or a declaratory judgment because the Defendant treated the class member alike. Plaintiffs in a Type 2 class action generally cannot seek damages;
(3) Type 3 (Common Question or Damages) - Type 3 class action,
(a) common question must predominate over individual questions; and
(b) the class action is superior method to handle the dispute.
This type of class action is frequently used for mass torts.
Type 3 Actions
In a Type 3 class action, the Court must notify class members that they are in a class. This means individual notice (usually by mail) to all reasonable identifiable members. The notice, paid for by the rep, tells the class members various things, including that they:
(1) Can opt out;
(2) Will be bound by the judgment if they don’t opt out; and
(3) Can enter a separate appearance through Counsel.
This notice is not required in Type 1 or Type 2 class actions. In Type 1 and Type 2 all class members are bound by the judgment.
Court Must Certify Class Action
A case is not a class action until the Court grants the motion to certify it as a class action. The court also must:
(1) Define the class and the class claims, issues, or defense; and
(2) Appoint class counsel, who must fairly and adequately represent the interests of the class.
Settlement of Class Action
Parties can settle or dismiss a certified class action only with court approval. In all (3) types, the court must give notice to the class members to get their feedback on whether the case should be settled or dismiss.
If it’s a Type 3 class, the Court also might refuse to approve the settlement unless members are given a second chance to opt out.
SMJ in Class Actions
If the class action asserts rights under federal law, FQ jx may be used.
For diversity cases, only the citizenship of the class representative is considered, and her claim must exceed $75,000.
- As long as the class rep’s claim meets the requirements of diversity, the class action may use diversity.
