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Author Topic: ITT Ask Cabra Your Civ Pro Questions  (Read 5739 times)

Cabra

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Re: ITT Ask Cabra Your Civ Pro Questions
« Reply #50 on: December 11, 2008, 10:19:34 AM »
this might sound really stupid because it's in plain english and doesn't seem complicated, but i don't understand the wording in the relation back amendment for parties:

"the new party knew or should have known that, but for a mistake as to the identity of the proper party, the original action would have been against him." (Rule 15c1c)

What exactly is this saying? Translation for my fried brain please?

Ooh! Relation back is a great one. Arthur Miller has the best example--plaintiff sues Fortune Magazine, but Fortune Magazine doesn't really exist--it's just a product of Time Life. By the time the plaintiff realized this, the statute of limitations was up, but he should be allowed to amend his complaint and name Time Life instead, since they definitely had notice of the action within the relevant time period and knew that they were the party that should have been named in the complaint, but for mistake.

So, if the plaintiff sues the wrong entity or party and that party knew or should have known that it was the party that should have been named, you can relate back (assuming all the statute of limitations stuff).
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UFBoldAsLove

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Re: ITT Ask Cabra Your Civ Pro Questions
« Reply #51 on: December 11, 2008, 10:21:25 AM »
Explain to me the murky mysteries of 1441(c)... since Glannon refuses too, lol.

We use the Sherry, Rowe book as well (Sherry is the CivPro teacher for the other section) but my professor did PJ/SMJ before everything else. I think it makes the class make a lot more sense. And when we go over the whole "The court doesn't have the POWER to hear every claim the FRCP allows to be joined." (supplemental juris.) it wasn't as mind blowing as it would have been had I learned joinder before SMJ.
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Cabra

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Re: ITT Ask Cabra Your Civ Pro Questions
« Reply #52 on: December 11, 2008, 10:30:20 AM »
Explain to me the murky mysteries of 1441(c)... since Glannon refuses too, lol.

Hi UFBoldAsLove!  :D

1441(c) is (sort of) a nice little permissive supplemental jurisdiction bit. So, if you've got one claim that could be properly removed because it's a federal question, the judge can take it and everything attached to it, or at her discretion, send back the state claims.
I feel like it's related to 1367(c)...
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UFBoldAsLove

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Re: ITT Ask Cabra Your Civ Pro Questions
« Reply #53 on: December 11, 2008, 10:35:10 AM »
Explain to me the murky mysteries of 1441(c)... since Glannon refuses too, lol.

Hi UFBoldAsLove!  :D

1441(c) is a nice little permissive supplemental jurisdiction bit. So, if you've got one claim that could be properly removed, the judge can take it and everything attached to it, or at her discretion, send back the state claims.
I feel like it's related to 1367(c)...


(c) Whenever a separate and independent claim or cause of action within the jurisdiction conferred by section 1331 of this title is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters in which State law predominates.

My problem is with the "separate and independent" language. How do you reconcile that with "same transaction or occurrence" needed for supp jx.  And when can something be removed pursuant to 1441(c) that couldn't have been removed using 1441(a) and 1367(a) in conjunction?


Note: I don't even know if there is a real answer to this, since it seems that many legal scholars think 1441(s) is outright unconstitutional.
Vandy 1L... really?

,.,.,.;.,.,.

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Re: ITT Ask Cabra Your Civ Pro Questions
« Reply #54 on: December 11, 2008, 11:04:35 AM »
this might sound really stupid because it's in plain english and doesn't seem complicated, but i don't understand the wording in the relation back amendment for parties:

"the new party knew or should have known that, but for a mistake as to the identity of the proper party, the original action would have been against him." (Rule 15c1c)

What exactly is this saying? Translation for my fried brain please?

Ooh! Relation back is a great one. Arthur Miller has the best example--plaintiff sues Fortune Magazine, but Fortune Magazine doesn't really exist--it's just a product of Time Life. By the time the plaintiff realized this, the statute of limitations was up, but he should be allowed to amend his complaint and name Time Life instead, since they definitely had notice of the action within the relevant time period and knew that they were the party that should have been named in the complaint, but for mistake.

So, if the plaintiff sues the wrong entity or party and that party knew or should have known that it was the party that should have been named, you can relate back (assuming all the statute of limitations stuff).

Cabra nailed it.  the other important thing in rule 15 seems to be "freely given leave to amend," which gives the trial judge discretion to allow the party to amend, and wide discretion, unless it prejudices the other party.  Think of Rule 15 in terms of prejudice -- is it fair to let the party amend?  Can the defendant still defend?  Can the plaintiff still prevail?

Cabra

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Re: ITT Ask Cabra Your Civ Pro Questions
« Reply #55 on: December 11, 2008, 11:21:51 AM »
Explain to me the murky mysteries of 1441(c)... since Glannon refuses too, lol.

Hi UFBoldAsLove!  :D

1441(c) is a nice little permissive supplemental jurisdiction bit. So, if you've got one claim that could be properly removed, the judge can take it and everything attached to it, or at her discretion, send back the state claims.
I feel like it's related to 1367(c)...


(c) Whenever a separate and independent claim or cause of action within the jurisdiction conferred by section 1331 of this title is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters in which State law predominates.

My problem is with the "separate and independent" language. How do you reconcile that with "same transaction or occurrence" needed for supp jx.  And when can something be removed pursuant to 1441(c) that couldn't have been removed using 1441(a) and 1367(a) in conjunction?


Note: I don't even know if there is a real answer to this, since it seems that many legal scholars think 1441(s) is outright unconstitutional.

With Rule 18 you can join as many claims as you've got against the opposing party, but supplemental jurisdiction under 1367(a) is only available for the claims that are related to the federal claim.
It might be that 1441(c) is a poorly worded reiteration of that--but it does seem to be stepping on some supplemental jurisdiction laws with the way it's stated--the entire case may be removed and parts remanded at court's discretion--weird. Had not spotted that.
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jellybean00

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Re: ITT Ask Cabra Your Civ Pro Questions
« Reply #56 on: December 11, 2008, 11:24:03 AM »
hey cabra - are you paying much attention to knowing all the cases? or are you just focusing on the rules? i'm really stressed out - i'm still reading glannon and haven't even gotten around to going back over the cases from subrin yet...

Cabra

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Re: ITT Ask Cabra Your Civ Pro Questions
« Reply #57 on: December 11, 2008, 11:31:25 AM »

you're a defendant being sued.  can you implead someone who may be liable directly to the plaintiff, but not liable to you?

Glannon says that in many states one defendant might sue another negligent party for "contribution" if the plaintiff hasn't sued the other party outright. But probably safer to stick to a direct liability theory if you're using 14(a)

Ok--I need to clarify what I said here, cuz it reads wrong!

You've got 2 drivers, both negligent, who together hit one plaintiff. You're the driver of one of the cars and the plaintiff sues only you. It's fine that the plaintiff sued only you because joint tortfeasors are jointly and severally liable.

You wouldn't have an independent theory of liability against the other driver in any other case, but since you're about to be held fully liable for something the other driver is also responsible for, he or she is now liable to you for part of whatever you might have to pay and you can implead the other driver.

In this sense, yeah, you can implead someone who isn't exactly liable to you, but you can't do a "It wasn't me, it was him" with impleader.



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Cabra

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Re: ITT Ask Cabra Your Civ Pro Questions
« Reply #58 on: December 11, 2008, 11:35:49 AM »
hey cabra - are you paying much attention to knowing all the cases? or are you just focusing on the rules? i'm really stressed out - i'm still reading glannon and haven't even gotten around to going back over the cases from subrin yet...

I feel like the only cases that should be really really important are the cases for minimum contacts, and the Trilogy cases for Summary Judgment...and Mottley, Twombly and Conley. Really, only the cases that changed the rules.

As our professor said--you have to work really hard to fail.  :P
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jellybean00

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Re: ITT Ask Cabra Your Civ Pro Questions
« Reply #59 on: December 11, 2008, 11:36:57 AM »
do you think there will be policy questions that require us to have read all those essays in subrin? and are you going to the review session today?