Civil Procedure II

31 October

• A good plan for analysis might diverge from the order things are taught in the book. First think of the point of view of your client: what court do you want to be in? That court would be the one you want making the decision on personal jurisdiction, etc. So, can you remove? If there's diversity or arising-under, you can. Next, think about personal jurisdiction, and transferring venue. So file a motion to dismiss for lack of personal jurisdiction or alternatively remove to the venue of your choice.

  Next think about joinder. Are there indispensible parties not currently in the suit?

  Anyway, the first question is: do we want federal or state court.

• Wis. Stat. § 134.02 (?) : the Legal Rate of Interest in WI, unless otherwise specified, is 5% from when the payment is due, or filing of complaint/demand if no due date was specified. This is why you make an offer of settlement early-- so we can take advantage of § 807.01 and the higher interest rate therein. The offer of settlement statute is a nice tool.
• Remember that the forum shopping problem under Eerie is about state-vs-federal shopping, not state-vs-state.
• We will probably see an Eerie question on the exam regarding whether to apply a WI rule in federal court (e.g., the new WI frivolous action rule, analogous to FRCP Rule 11). Used to be §§ 802.05 and 814.025; these pre-existed Rule 11. Then § 802.05 was made more similar to the federal rule. Then there was some politics after major sanctions got dished out, and § 802.05 got watered down ("may" instead of "shall" on sanctions and attorney fees; also a safe-harbor period was added), and § 814.025 was repealed by the WI SC (sneaky: 814.025 was passed by the legislature). Now there's nomethng new in § 895 somewhere-- seems to create a right to attorney fees. So does this conflict with Rule 11 (see, e.g., Hanna v. Plumer): does that apply in federal court?

  Then there's § 807.03 or something: about the enforceability of a settlement agreement. If the offer is not in writing, does it apply in federal court?

2 November

• Note that not all dispute resolution systems employ claim preclusion: politics, family arguments, etc.
• Res judicata can apply either to preclusion generally, or just to claim preclusion.
• Claim preclusion has two goals:
  1. Efficiency: avoiding re-litigation
  2. Consistency: avoiding different results about the same facts
• Frier v City of Vandalia
  Parking run amok.

  This is precluding the same claim.

  Now obviously, Frier had not fully litigated his civil rights suit in the state court suit. But he could have brought it then. That's the precluding. But how is this fair? Well, he had the chance to bring whatever claims he wanted, and he chose not to do so.

  Now suppose you're the city. How do you litigate this case (i.e., the § 1983 claim)? You're going to make a motion for summary judgment (a motion to dismiss is based on the complaint only, and you need to have an affidavit and the state court judgment attached). So you'd file an answer and then a motion for summary judgment. Well, actually, you could file it as a motion to dismiss, and it would be treated as a motion for summary judgment.

• But if we have to bring all claims at once, is that really always more efficient?
• The preclusion law which applies (i.e., what's the effect of the judgment) is from the state where the judgment came. That's full faith and credit.
• Two models:
  1. Only applies to what was litigated
  2. Applies to all claims that existed at the time of the first lawsuit
• In reality, we're somewhere between the two: all claims arising out of the same transaction or occirrence. (IL: "same evidence" CA: "Primary right"). So you can get an Eerie question to decide what test to use for whether claims are precluded.
• A catch: if the plaintiff was forced to litigate in a forum or under a procedure that prevented a possible claim from being litigated (i.e., you had to file in small claims court, and the small claims court can't hear you § 1983 claim), there's no preclusion.
• Rule 8(e): you can bring inconsistent claims-- broad joinder of claims. We're forcing people to bring claims in large packages to enforce efficiency by threatening preclusion.
• Things to contemplate when deciding if a claim will be precluded: was there an opportunity to get it heard? was it related to the same transaction?
• If a pile of claims gets too giant, you can sever under Rule 42.
• Martino v. McDoald's
  WI, by the way, does not have a compulsory counterclaim rule, but there's no difference between that and federal court in practical terms, because of claim preclusion. Claim preclusion flows from common law.
• When you're drafting settlement agreements, you want to get a release of other claims, to the extent you can.

  So you say "release all claims related to anything that occurred up to the date of this settlement agreement." That ought to end things (because of course nobody is going to release future claims).

  Alternatively "release all claims having anything to do with our business transaction, whether past, present, or future." So that will end things for all time, but it's limited to the facts at issue.

• Precedent binds non-parties, and generally applies to laws, not facts. Can be re-argued (i.e., distinguished).

  Preclusion is binding on parties, and relates to law and facts. Can't be re-argued.

• Searle Bros. v. Searle
  The "same" parties. Or better put, when is a non-party really a party?

  So there was a remand for tral here, but it looks like the brothers were pretty much a part of the suit. Still, they weren't parties (i.e., they couldn't have appealed the judgment).

  If you are in litigation over property that is partly owned by non-parties: file a motion to stay the litigation while you prosecute a quiet title action to settle the ownership of the property where all parties can be involved. That will bind folks later.

  The moral: a strong legal relationship is required to bind someone to a judgment to which they aren't a party.

• This is sort of why defendants might want a class action: settlement will bind all members of the class.
• Some administrative determinations may be entitled to preclusive effect.
• Is a judgment final when there's an appeal? Generally yes, but check you statutes! If there's a reversal, you can re-open the prior judgment.