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Follow-On Class Action to an Individual Suit = Double Jeopardy?

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Paul84

Member
General facts looking for specific answers are not going to be that useful. One problem I can think of if the investigator interviewed a represented opposing party. I suppose there could be others. (Though none off the top of my head.)
Thanks, Tranquility. I was aware of that one. However, if those interviewed were not at the time a represented opposing party but subsequently became one (e.g. they joined the case by cross-claim), would that also be considered unethical?
 


quincy

Senior Member
Thanks, Tranquility. I was aware of that one. However, if those interviewed were not at the time a represented opposing party but subsequently became one (e.g. they joined the case by cross-claim), would that also be considered unethical?
Not unethical for the private investigator, maybe. Unethical for the attorney, possibly.

That is just one reason why any deception involved in the gathering of evidence (through interviews or otherwise) should be avoided. It can create problems.

But everything is fact-specific, case-by-case. Hypotheticals can spin off in too many different directions to be helpful.
 

Paul84

Member
Ever heard of a motion taking this long for a decision?

Thanks for the replies. I did manage to get the objections filed on time. If the district judge ("DJ") sides with the magistrate, or even partially agrees with the recommendation, what then is the procedure? Would I do a motion for the DJ to reconsider, go directly to appellate court with an appeal, or is such an appeal not even an option at this stage for dismissed claims if one claim survives?
More than five months have elapsed since the magistrate issued his report and recommendation (R&R), to which I objected and the defendants then responded. Nearly two years have gone by since I first filed the complaint, and it’s not even out of the starting gate. Is such a delay in review of the R&R a further bad sign? The magistrate took an entire year to issue his R&R dismissing all but a narrowed version of one of my claims.

The presiding judge is new to the bench. Am wondering whether the judge would be more concerned about (a) overruling a magistrate with 30 years’ experience or (b) risk getting overturned if I file an appeal after an FRCP 54b motion to certify final judgment on any dismissed claims. The federal claims are all separable (unrelated) so I could make a case for there being no just reason to delay appellate review. I don’t think a motion to reconsider an unfavorable opinion at the district level is worthwhile since I’ve heard they just tend to annoy the judge and rarely, if ever, achieve the desired result.

Also, last month, the 2nd circuit appeals court, in affirming dismissal of a similar case of first impression to one of my claims, worded its opinion in such a way that would allow me to distinguish the nature of my pleaded facts, and thus the outcome, from those of the dismissed case. I don’t think I’m grasping at straws here but who knows? A long-deceased family friend spent 14 years to win his case, a landmark decision that the U.S. Supreme Court ultimately decided. But he had friends in high legal places and was a distinguished lawyer to boot.
 

You Are Guilty

Senior Member
Timing is one of those things that can tell you nothing or be the biggest hint in the world. There are many Art3 judges who, like their state court counterparts, are overworked and decision issuing is measured in months (or years) and this is routine. Others somehow have enough clerks to muddle through and get decisions out slightly more quickly. I have had a MSJ pending in the SDNY for more than a year and one which was decided in two months. Both "normal" for those particular judges. (I note that I refused my client's instructions to "remind" the DJ with the year-plus motion that "we're waiting". Others may disagree, but in the aggregate, I find that to be counterproductive. And in this case, it was the right call -- we eventually got out).

If you are not already familiar with your specific judge's predilections, the only thing I can suggest is see how long they take to issue decisions in other cases before them (get ready for a real PACER bill) and compare that timing to your own.

But as a very general matter, pro se cases are usually put at the bottom of everyone's "to do" pile, as judges (a) tend to believe pro se cases are not necessarily as important as fully represented ones, and (b) have to write those decisions very carefully to cover all the insane points pro se's usually raise, so they take longer to do in general.
 

ecmst12

Senior Member
At what point are you going to accept defeat here? Are you going to keep beating your head against the wall for all eternity?
 

Paul84

Member
What is "Fact Discovery" versus "Discovery" (for the purpose of deadlines)?

Am trying to draft a scheduling order and case management plan using the court's template, which states (paraphrasing): "The completion date of all fact discovery will be ________ and completion date for all discovery will be _______."

What's the difference between fact discovery and all discovery?
 

tranquility

Senior Member
Am trying to draft a scheduling order and case management plan using the court's template, which states (paraphrasing): "The completion date of all fact discovery will be ________ and completion date for all discovery will be _______."

What's the difference between fact discovery and all discovery?
Without seeing the context, I can't be sure. But, expert witnesses provide opinion upon the facts.
 

You Are Guilty

Senior Member
^ That's exactly it. The court splits fact discovery (which unlike state court, usually includes non-party discovery) from expert discovery.

Tends to save people a lot of money if they don't have to pay to retain/depose experts if fact discovery shows it's not warranted.
 

Paul84

Member
^ That's exactly it. The court splits fact discovery (which unlike state court, usually includes non-party discovery) from expert discovery.

Tends to save people a lot of money if they don't have to pay to retain/depose experts if fact discovery shows it's not warranted.
Thanks, Tranquility and Guilty. That makes sense.
 

Paul84

Member
Is it Possible to Introduce Excluded Hearsay on Cross Examination?

If I file a motion in limine to exclude entire key documents (and topics) or major parts of them as based entirely on inadmissible hearsay, is it likely that a judge would do that? The other party might claim they are business records (and hence an exception to hearsay), even though the defendants did not prepare them in the course of regularly conducted business and the person who wrote the document did not have personal knowledge about the events described.

If the judge does not rule before a jury trial on such a motion, could the other party still get the evidence admitted on cross-examination by asking me what I knew about the hearsay statements--since in some instances I might have personal knowledge about what transpired? In my verified amended complaint, I had referred to these documents to show that certain parts were untrue.
 
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Paul84

Member
How to show good cause not to appear in person for pretrial hearing?

In an endorsed order, the district judge presiding over my case, which is now in discovery, said I must show good cause not to appear at certain, unspecified pretrial hearings in person rather than by phone. I live outside the U.S., thousands of miles from the NY courthouse. Because of my size and problems with my legs, which make long-distance, economy-seat flights painful, I would have to pay thousands of dollars for a business-class seat and NYC lodging to reach the court. The judge's initial written comment, repeated at the phone-based initial pretrial conference, came after one of my letters to the court had mentioned that I can attend any trial in person, but not hearings. As a reason for the requirement of in-person attendance, the judge's order also said that, because I had chosen to prosecute the case in that jurisdiction, I would have to be prepared to go the district in advance of trial. Actually, there is no other courthouse where I could have brought the surviving claims.

I asked the pro-se office's clerk why the judge would say this but the clerk was surprised and had no idea. I'm willing to make one trip, even if it entails staying days or weeks before and after, if and when the judge sets a firm trial date. However, I don't understand why the judge might want to force me to make multiple, costly journeys. Any thoughts or suggestions? Would a description of the cost in money and time be sufficient for me to "show good cause"? Even the court's own documents say that, for mediation, which I do not want, any party more than 100 miles from the courthouse can participate by phone.
 

OHRoadwarrior

Senior Member
Buy an adult car seat and stay in Jersey. You being out of the country is by choice if you are a US citizen.
 
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OHRoadwarrior

Senior Member
They make car seats with molded leg supports. Google "adult tomato car seat". They can be used on aircraft.

I was not trying to infer anything negative, I am disabled also. In fact on days I am shaking, I stay home. As I tell my family, It is bad enough I have become so disabled hobbling along or using my scooter and asking for assistance to pick things up, the last thing I want is to look like a puppet freak on a string, when my head, shoulders, arms etc start shaking on their own.
 
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You Are Guilty

Senior Member
Any thoughts or suggestions? Would a description of the cost in money and time be sufficient for me to "show good cause"?
At the risk of reading too much into this, it appears the judge is testing your commitment to this case. (Or, it's entirely possible this is just how your judge operates in these scenarios. That's the danger of assumptions). Did you do something (recently) to piss them off?

Regardless, you have to oppose the OSC. Can you get a doctor's note or something similar confirming the medical issues? Judges love documentation.

Frankly, outside of hiring a local lawyer to do the appearances, your most viable strategy is probably the "throw everything at the wall and see what sticks" approach. Take the information/reasons you've posted here, flesh them out, stir in the doctor's note, and hope for the best. (I would also suspect there has to be some Federal case law on this issue somewhere - no way this is the first time someone has litigated this issue throughout the entire US. May as well throw that in as well). Reiterate the costs, monetary and physical, and that you are willing to appear in person for a pre-trial conference as well as any trial.

I guess you can try to make some sort of ADA/access claim too, but since it would probably go over like a lead balloon, you may way to save that for a last resort (or a motion to reconsider, I suppose).

Beyond that, there's not a lot more you can do. (Well, maybe staple a $20 to the Aff in Opp, but it's definitely not recommended).
 
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