Civ Pro- Orenstein- Fall 2011

7/27/2019 Civ Pro- Orenstein- Fall 2011

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I. Introduction

Supreme Court comes up with the rules, although Congress has the power to object to them

The documents that regulate our laws are amendments, statutes, and rules

7th amendment guarantees the right to a jury trial in civil actions

Ways to get into federal court:oDiversity of citizenshipo

Bring up Constitution or federal statuteoAdmiraltyoAlienage

Federal Rules of Civil Procedure became effective in 1938II. Glossary

Collateral attack: made after the entire case has been decided, basically says whatever has happened in court is not considered val

Ex parte: without the other party present

Habeas corpus: criminal issue becomes a civil procedure action in federal court

Impeachment: discrediting evidence

In camera: showing something in chambers just to the judge and not to anyone else

In rem: suing something that is not a person, ex. Suing land

Laches: equity version of the statute of limitations, only use if there is no statute of limitations

Motion: request to the court for an order

Next friend: you are underage and need someone to sue on your behalf

Per curiam: everyone on the court agrees with the decision Pro se: on your own, without an attorney

Res judicata: you have sued me on this before

Slippery slope argument: doing something will lead to something unanticipated and terrible because you wont be able to make findistinctions

Sua sponte: on his or her own; judge acts on his own

Pleadings and Motions

III. Pleadings

Lawsuits are initiated by pleadings

Pleading: the official form that gets things rolling

oNotice pleading: simply gives notice to the that there is an action being brought against him/heroLook at form 11

RULE 7: types of pleadings

A) the pleadings allowed are:1. Complaint2. Answer3. Answer to counterclaim4. Answer to crossclaim

5.Third party complaint6.Answer to third party complaint7.Reply to answer (if ordered)

B) motions must8. Be in writing9. State the grounds with particularity10. State the relief sought

Pleadings can be strategic: a detailed pleading with a lot of facts can show you mean business

You must assert damages in your pleading because if the other party ignores you, you automatically win that amount

RULE 8: rules of pleading

oA) pleasing must contain1. A short and plain statement of the grounds for subject matter jurisdiction

2. A show and plain statement showing the pleader is entitled to relief3. A demand for the relief soughtoB) defenses

1. In responding to a pleading, a party must state a defense to each claim and admit or deny the allegations assertethe opposing party

2. Denials must fairly respond to the substance of the allegation3. Use general denial if you want to deny all allegations, otherwise either specifically deny designated allegation

generally deny those except specifically admitted4. If you want to deny part of an allegation, admit the part that is true and deny the rest5. If you dont have enough knowledge to form a belief, you must say so and this acts as a denial6. If an allegation is not denied in a responsive pleading, it is admitted. If a response is not required, an allegation

considered deniedoC) affirmative defenses must be stated but the list is not exclusive. If a claim is mistakenly treated as an affirmative defen

but it is a counterclaim, or vice versa, the court must treat it as though it was designated correctlyoD) alternative pleadings

1. every allegation must be simple, concise, and direct


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2. you can make more than one claim, and as long as one is significant, you are all set3. it doesnt matter if the claims are inconsistent with each other

oE) when in doubt, courts construe pleadings so as to be fair

Before you plead, make sure there is no statute and you arent covered by special matters in rule 9

RULE 9: when you allege fraud, you must do so with particularity; special damages must be specifically statedoRule 9 are the heightened pleading requirements

Arguments for getting rid of notice pleading:oDefense can formulate answer more thoroughlyoMight get rid of cases faster or make settlement more likely

oNarrows issuesoHelps with discoveryoEliminates insufficient claims and shams

Because we dont want to make it easy to sue again, we make it easy to amend the pleadingsIV. Motions

A motion is not a pleading but you can answer a complaint with a motion

Motions must be in writing, state grounds with particularity, and state the relief sought (7(b))

There are an infinite number of motions

Have an order prepared when you make a motion; you always want to be the one drafting because you have more control

You cannot put a motion in an answerV. Complaint

RULE 3: to start a lawsuit, file a complaint

Complaint: a short and plain statement of grounds for courts jurisdiction, a statement showing the pleader is entitled to relief, andemand for relief sought

Generally complaints are filed as numbered lists because it is easier to respond that way

Sierocinski v Du Pont:

oFacts: submitted complaint alleging negligence for injury by premature explosion of dynamite cap, to which submitt

motion for definite statement. Trial court dismissed because was not clear in his allegation of negligenceoLegal issues:

1. A specific averment of negligence is ok, because a need not plead evidence2. No technical forms of pleading are required under rule 83. If needs more information, it should do so through discovery

oJudgment: reversed because the complaint was fine

Once someone files a complaint against you, what can you do?

o12(b) motion this must come before the answer, but you can still put the defense in the pleadingoAnswer

oDo nothing risky because you give up all substantive defensesVI. Pre-Answer Motions- RULE 12

RULE 12A) timing

1. must serve an answer within 21 days of getting complaint, unless it has waived service; similarly a party hasdays to answer counterclaim or crossclaim or 21 days after getting order to reply to an answer

2. a state agent can take 60 days to answer whether or not they are sued in their official capacity3. state agent takes 60 days when acting in individual capacity4. what happens when you make a rule 12 motion:

a. If denied, party has 14 days for responsive pleadingb. If motion for more definitive statement is granted, responsive pleading must come within 14 days of

definite statementB) motions these are special because you can make these motions without answering first; must make them before a

pleading1. Subject matter jurisdiction

- If at any point the court finds it doesnt have this, the claim must be dismissed- Has Constitutional roots

2.Personal jurisdiction

- Dont worry about personal jurisdiction over because as soon as they sue in a certain court, they havesubmitted themselves to that jurisdiction

- Derives from 14th amendment guaranteeing due process3.Lack of venue

- Looks at whether you are in the right district- Dont do nothing about this though, because you cannot collaterally attack venue

4.Insufficient process- If the form of the summons is incorrect, but there is something wrong with the paperwork

5. Insufficient service of process- Did not serve the summons correctly

6. Failure to state a claim upon which relief can be granted- Use is there is no law that protects against the certain type of injury- Results in granting of demurrer or judgment as a matter of law


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- In determining this, must take everything the non-movant says as true- Standard of review is de novo

7. Failure to join a party under rule 19C) after pleadings close but before trial would be delayed, party may move for judgment on the pleadings but you cant brany outside informationD) if party moves for judgment on pleadings and matters outside of the pleadings are presented, it is treated as summary

judgment motionE) party can move for a more definitive statement if the complaint is too vague, but they must do so before filing a respo

pleading; if a more definitive statement is ordered and the party doesnt comply in 14 days, the court can strike the pleadF) court can strike an insufficient defense, or redundant, immaterial, impertinent, or scandalous matter either on its own omotion of party either before response or 21 days after getting pleadingG) joining motions

1. You can join any rule 12 motion with any other rule 12 motion (and you should)2. Cant make another rule 12 motion or objection if you have omitted it from an earlier motion why you should bup all defenses in one motion

H) waiving and preserving rule 12 defenses1. 12(b)(2)-(5) are waived by omitting them from earlier motion or failing to either make it by motion or include it iresponsive pleading2. 12(b)(6) and (7) can be made in any pleading, by a 12(c) motion, or at trial3. If at any time there is no SMJ, action is dismissed

I) any rule 12 motion must be heard and decided before trial unless court orders deferral

12(b)(2)-(5) are the WAIVABLES: if you do not make them, they are completely lost and you cannot argue them during appeal When making a 12(b)(6) the is asking the court to look at the complaint, take all the facts in the complaint as true and determine

those facts are all true whether or not they constitute a cause of action

oBasically is testing the legal sufficiency ofs complaint:1. are all the elements for that cause of action present in the complaint?2. If they are then motion to dismiss is denied and the case continues3. If they are not, motion to dismiss is granted and the court is saved the time and expense of continuing to trial

VII. Answers/Counterclaims/Crossclaims

You are never denied the ability to make an answer, even though sometimes you dont have to (this is a good thing)

Answer: paragraph by paragraph response to the complaint

Someone hands you a complaint to answer:

oAdmit: if something is true say so. You can amend if you admit something erroneouslyoDeny: state that it is not true and raise affirmative defenses from rule 8

- Need to bring up affirmative defenses at the beginning because needs notice of the basis of your defens- If you neglect to put in an affirmative defense, you waive it

oState that you dont have sufficient knowledge to form a beliefo Ignore it: however if you do this it is taken as being admitted

RULE 13: counterclaims and crossclaimsA) compulsory counterclaims must be stated if it arises out of the same occurrence that is the subject matter of the oppo

partys claim and it does not require adding another party; does not need to be stated if the claim is part of another pendiaction or if there is a lack of personal jurisdictionB) permissive counterclaims are not related to the circumstances of the suit but can still be brought upC) a counterclaim need not diminish recovery sought by the other party and can exceed or differ from the relief sought byopposing partyD) cant assert counterclaim against US officerE) can file a supplemental counterclaim that matured or was acquired after pleadingF has been removed

G) crossclaims must arise out of the same circumstances or relate to any property that is the subject matter of the originaaction

H) use rules 19 and 20 to join parties to counterclaims and crossclaimsI) if the court orders separate trials under 42(b), it can decide on crossclaim or counterclaim when it has jurisdiction to do

RULE 18: joining claimsA) you can join all claims against an opposing partyB) A party many join two claims even though one of them is contingent on the disposition of another

It is easier to join claims than it is to join partiesVIII. Sanctions against lawyers-RULE 11

RULE 11- signing pleadings, sanctionsA) every pleading, written motion, and other paper needs to be signed by an attorney or it can be omitted unless the omisis promptly correctedB) by presenting something to the court the lawyer certifies that

1. It is not being presented for any improper purpose2. The claims are warranted by existing law or a non-frivolous argument for extending, modifying, or reversing

existing law3. Factual contentions have evidentiary support

4. Denials of factual contentions are warranted by evidence


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C) sanctions5. If after notice and opportunity to respond, court finds rule 11 violation, they may impose sanctions6. Motion for sanctions must be made separately an d the lawyer has 21 days after being told about the violation t

something about it7. On its own the court can order a lawyer to show cause for why the conduct has not violated rule 11 and the saf

harbor rule does not exist8. Sanctions must be limited to that which will deter the behavior9. Monetary sanctions should not be applied for 11(b)(2) or on its own10. Order imposing a sanction must describe the sanctioned conduct and explain basis for sanction

oRule 11 does not apply to discovery

Rule 11 DOES NOT APPLY TO DISCOVERY!

Rule 11 operates in tandem with the rules of professional conduct and ethics

Rule 11 has existed in three stages

o1938-1983: period of A Civil Action- Sanctions were permissive

o1983-1998: rule 11 changes in significant ways- Certain claims werent being brought because of fear of rule 11- Sanctions were mandatory with an emphasis on punishment- Disproportionate treatment of civil rights cases

o1993-present: time period of Murphy- Deterrence philosophy

- Sanctions are usually paid to the court, not the other party- Sanctions are discretionary- Gets rid of bogus rule 11 motions

There is no good faith defense to rule 11 sanctions

Murphy v CuomooFacts: sued NYPD for violating 42 USC 1983 for state official violating citizens rights; alleged conspiracy to using pe

spray

oProblems with s case: no proof is state actor; no evidence of conspiracy even after discovery; FDCA does not createprivate action

oLegal issues:1. 1983 creates a cause of action, not federal court jurisdiction and FDCA creates no private action2. Since there was not enough evidence that was involved in the study, summary judgment must be granted3. Purpose of rule 11 is to deter abusive litigation tactics and to streamline the litigation process by lessening frivo

claims4. Imposing rule 11 does not require bad faith; the test is whether the attorney made a reasonable inquiry prior to

signing a pleading Rule 11 sanctions must be imposed with caution so as not to chill the prosecution of meritorious claims

Garr v Us Healthcare:

oFacts: lawyers get in trouble for copying others complaints word for word; another gets in trouble because he got hiclient in a class action and it turned out to be a conflict of interest

oLegal issues:1. Sometimes there might be a meritorious claim, but the lawyers did not do their homework2. There is a legitimate debate as to the purpose of rule 113. Dissent believes that sanctions are inappropriate where there is a reasonable basis for a complaint even if the

attorney failed adequately to inquire into itIX. Amending Pleadings

RULE 15: amending pleadings

oA) before trial1. Party may amend once as matter of course within 21 days after serving it, or 21 days after a responsible pleadi

21 days after service of 12(b), (e), or (f) motion whichever is earlier2. Every other time, to amend a party needs courts leave or other partys permission3. A response to an amended pleading must be made within the time remaining to respond to the original pleading

within 14 days of the amended pleading, whichever is lateroB) during and after trial

1. If a party at trial objects to an issue in the pleadings, the court may permit the pleadings to be amended2. When an issue not in the pleadings is brought up in trial, it is treated as though it is in the pleadings

oC) relation back of amendments1. Amendment relates back to the original pleading if the statute of limitations allows relation back, or if the

amendment arises out of the same transaction

oD) supplemental pleadings may be allowed by the court setting out an occurrence that happened after the date of the pleato be supplemented

15a amendments before trialoThe earlier an amendment is made, the less likely it is to disrupt the judicial administration or prejudice the partiesoOnce issues have been joined by filing of a responsive pleading then amendment requires leave of court

15b amendments at trial


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oUsed to help conform the pleadings to new evidence presented

oImplied consent: presupposes both knowledge that an unpleaded issue has been injected into the litigation and a meaninopportunity to litigate the issue; failure to object to evidence that is appositive to unpleaded issues signifies implied cons

Factors in judge considering to grant amendmentoPlenty of time to meet new claimoNo delay in offering amendment

- Undue delay: court is asking whether it would have been just as easy to have added this in the originalcomplaint or answer as it is when the motion to amend is sought

oNo reason to expect bad behavior or bad faith- Dilatory motive: purpose is to irritate opponent

Under rule 16, a judge can limit amendments

Parties can amend pleadings even after the trial especially useful to avoid res judicata

Courts grant leave freely to amend unless it is wildly prejudicial; this generous attitude is even more obvious at trial

Vinagro v Reitsma

oFacts: inspected s property asserting qualified immunity; s oppose a motion to amend because doing so would stillpermit the suit to survive the motion to dismiss

oLegal issues:1. A court can decline to permit amendment if such amendment would be futile

Why do we allow amendments to claims and answers?

oBecause the time and file their claims, they wont know everything they need to know

Relation back under 15(c)(1)(b)oWhen the claim or defense arises out of the same transaction or occurrenceoUsed when the party cannot file a separate claim because it would not be viable due to the statute of limitations having ruoPolicy: when the amendment presents a matter that is closely related to a timely filed original pleading, allowing it to rela

back would not offend the policy of limitationsoMust look at whether there is sufficient overlap between the asserted claim in the amendment and the case as stated in the

original complaintX. The new pleading standard- Iqbal and Twombly

Bell Atlantic v Twombly: PLAUSIBILITY STANDARDoFacts: class action suit alleging the major phone companies had violated the Sherman Antitrust Act. The complaint accus

the companies had engaged in parallel conduct unfavorable to competition. District court dismissed because parallel acti

could be explained by economic interests and s must allege more facts. Appellate court reversed using the no set of factstandard. Supreme court founds pleadings insufficient

oLegal issues:

1. s motion to dismiss does not need detailed factual allegations, but it requires more than labels and conclusions

a formulaic recitation of the cause of action2. Factual allegations must be enough to raise a right tor elief above the speculative level3. The complaint must be PLAUSIBLE, this will meet the requirement that the plain statement has enough heft to

show the pleader is entitled to reliefa. However this does NOT raise the pleading standard

4. Formally rejects the no set of facts standard5. Class action and antitrust are potentially limiting factors to this standard6. This case deals with the line between possible and plausible

oDissent1. The plausibility standard is irreconcilable with Rule 82. They didnt even have to answer3. Case management and limited discovery would have worked, expenses could have been contained

Ashcroft v Iqbal:

oFacts: was Muslin who was kept in high security prison following September 11 th. Alleges that AG Ashcroft and direc

FBI Mueller engaged in discrimination and deprived of constitutional rights. District court let action go through on no

facts standard. Appellate court found the complaint plausible, Supreme court reversedoLegal issues:

1. Uses the Twombly standard which obliges a pleader to amplify a claim with factual allegations that are neededrender the claim plausible

2. Respondent must plead sufficient factual matter to show that adopted and implemented the detention policiefor a neutral, investigative reason, but for the purpose of discrimination

3. Plausibility standard asked for more than a sheer possibility that acted unlawfully4. Sets out a test based on Twombly:

a. Get rid of all conclusory statements, but take all facts as trueb. Complaint must state plausible claim for relief

5. Legal conclusions in a complaint are never taken as trueoDissent:

1. pled facts not legal conclusions, and taking those facts as true, the claim is plausible

Iqbal and Twombly raise a lot of questions:oWhat is the interplay between 12(b)(6) and summary judgment?oWho should bear the burden of lawsuits?


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oHow is this constitutional if there are questions of fact?

oDoesnt this violate the 7th amendment right to jury?

oWhat do s do who have a good claim but not all the necessary ifnoramtion?- Do advance discovery before filing pleadings

The overall reaction in the academic community has been very negative

Defense attorneys need to immediately think about Iqbal and Twombly

Joinder and Class Actions

XI. Joinder

We have a very liberal joinder system, however:

os have a right to shape their own lawsuit including who to sue, what to sue about, when to sue, where to sue

oSometimes joinder is restricted by SMJ cannot join someone without having SMJ and PJ over them

RULE 18: joinder of claimsoA) a party asserting a claim, counterclaim, crossclaim, or third party claim may join as many claims as it has against an

opposing party

oB) a party may join two claims even if one is contingent on the disposition of the other, but the court may grant relief onlaccordance with parties relative substantive rights

Rule 18 is directed at plaintiffs

Just because a rule says you can join something, doesnt mean you cancheck SMJ and PJoRULE 82: a rule cannot create jurisdiction

Sometimes if you dont join claims you can lose themoThis comes into play with res judicata

RULE 20: permissive joinder of partiesoA) people may join as plaintiffs with they assert a right arising out of the same transaction or occurrence and there is a

question of law or fact common to all plaintiffs. People can join as defendants for the same reasons. Relief can be split upamong people

oB) court can issue orders to protect parties against prejudice

Under rule 20, call parties that want to be joined must be part of the same action. Rule 20 allows joinder of parties but doe snt forcjoinder of parties

Rule 20 uses the arises out of the same transactionor occurrence test

RULE 14: third party practiceoA) when defending party may bring in third party

1. , as 3PP, may serve a summons and complaint on a nonparty who may be liable for all or part of the claim agit. 3PP must obtain leave if it is filed more than 14 days after serving its answer

2. 3PD must assert rule 12 defenses against 3PP, must assert counterclaims and crossclaims against 3PP and 3PDassert defenses against original , may assert a claim against arising out of same transaction

3. can make a claim against 3PD arising out of same transaction4. Any party may move to strike the third party claim, to sever it, or to try it separately5. 3PD may keep bringing in other 3PD

oB) can also bring in a third party if the rule would allow the to do so

Rule 14 works on a theory of indemnificationoThere must be an indemnification relationship to add partiesoHaving defendants implead others is good because otherwise it would take a separate second suit and this could lead to

inefficiency and inconsistent judgments

o Impleading is an exception to the idea that gets to sue who he wants

ocan assert a claim against the parties that joins but there still needs to be SMJoSupplemental jurisdiction might be an issue to think about!

RULE 19:required joinder of partiesoA) persons required to be joined

1. A person who is subject to service of process and whose joinder will not deprive court of SMJ MUST be joinecourt cant grant complete relief in persons absence or that person is so situated that disposing of the action in

persons absence may impede persons ability to protect interest or leave existing party subject to increased risinconsistent obligations

2. If a person has not been joined as required, the court must order that the person be made a party. A person whorefuses to join will be made a party

3. If a joined party objects to venue and joinder would make venue improper, court must dismiss that partyoB) if a person who is required to be joined cannot be joined the court must determine whether the action should proceed o

should be dismissed. Court must consider1. Prejudice by judgment in absence of person2. Extent to which prejudice would be lessened or avoided by protective provisions, shaping the relief, or other

measures3. Whether a judgment in their absence would be adequate4. Whether the plaintiff would have an adequate remedy if action was dismissed

o

C) when asserting a claim for relief a party must state the name of any person required to be joined if feasible but is not jand the reason for not joining


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oD) rule is subject to class actions

Rule 19 is among those defenses you can raise up until the end of trialoYour need to make a rule 19 motion may unfold over time

Rule 19 asks the question of a necessary (required) and indispensable party

oNecessary parties: need them for fair and efficient adjudication, and need them to avoid inconsistent judgments

- If the person is indispensible but cannot be joined, the action must be dismissed

o Another way we undermine s choiceo Indispensible party: claim cannot continue without him

Rule 19 is a very discretionary standard

Discovery

XII. Introduction to Discovery

Lawyers spend 90% of their time in discovery, it is the place the most money is spent

oTurn to discovery once you have exhausted all your voluntary sources

Discovery is more influenced by circumstances and the judge than by the rules

Purposes of discovery:

oEncourage settlementoprepare and preserve relevant information, obtain information that will lead to admissible evidenceoNarrowing issues, find out the ones that are actually in controversy

Because pleading is so broad, discovery must be very specific RULE 26: Disclosures and general rules of discovery

A) required disclosures1. Initial disclosures

a. before a discovery request is sent party must give upi. Name and contact information of people with discoverable information unless the use wou

solely for impeachmentii. Copy of all documents

iii. Computation of each category of damagesiv. Insurance agreements

b. Some proceedings are exempt from initial disclosure

c. Initial disclosures must be made within 14 days of 26(f) conference unless court orders different timeparty objects on initial disclosures

d. Parties that are joined later must make initial disclosure within 30 days of being joinede. Party must make initial disclosures on information then reasonable available and is not excused if it h

not fully investigated, it challenges the other partys disclosures or if the other party had not made itsdisclosures

2. Disclosure of expert testimonya. Parties must also initially disclose the identity of any witness it wants to use at trial

b. Disclosure of identity of expert witness must be accompanied by a written report that includes: opiniwith reasons; information used to form opinions, exhibits, qualifications, other cases, statement ofcompensation

c. Parties must make these disclosures in the sequence the court orders; if the court doesnt order it muat least 90 days before the trial date, or if the information is only going to be used to discredit other pinformation, within 30 days of other partys disclosure

d. There is an ongoing duty to supplement these disclosures3. Pretrial disclosures

a. Parties must also provide the names of witnesses and documents it intends to presentb. Other disclosures must be made within 30 days of start of trial; objections must be made with 14 day

disclosures4. All disclosures must be in writing, signed, and served

oB) scope and limits on discovery1. Parties can obtain discovery regarding any unprivileged matter that is relevant, even if it wont be admissible at2. Limitations on frequency and extent

a. Court can also number or length of depositionsb. A party does not need to provide discovery of electronically stored information from sources that are

reasonably accessible because of undue burden or costc. Court muse limit discovery if it is unreasonably cumulative or duplicative or can be obtained from an

course; party seeking it has had ample opportunity to get it; burden outweighs benefit3. Trial preparation materials

a. Work product privilege: party may not discover those things prepared in anticipation of litigation unlis otherwise discoverable or the other party shows substantial need

b. If court orders discovery of protected materials you can redactc. Previous statements of any other party may be discovered

4. Trial preparation experts


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a. Party can depose any person identified as expert used at trialb. Cant discovery facts or opinion of experts retained by the other party unless the party cant get the

information in another wayc. Court must require that the party seeking discovery must pay expert for time in discovery

5. Claiming privilegea. When a party claims information is privileged the party must expressly make the claim and describe

nature of the documents fullyb. There is a clawback provision where if party accidentally sends privileged information, it can get it b

oC) protective orders1. Person may move for protective order only if they have conferred in good faith with other party to try to resolv

issue2. If motion for protective order is wholly or partially denied, the court may order that any party provide discover

oD) timing1. Party may not seek discovery from any course before the parties have had a 26(f) conference2. Methods of discovery can be used in any sequence and at the same time as the other party

oE) supplementation1. Disclosures must be supplemented when the party learned of new information or when court orders it2. Experts report and depositions must also be supplemented

oF) planning conference1. Parties must confer as soon as practicable or at least 21 days before a scheduling conference under rule 162. At the conference the parties must talking about settling, make or arrange for disclosures, discuss preserving

information, and develop of discovery plan. Plan must be submitted in writing within 14 days of conference.Doesnt have to be in person3. Discovery plan must include: changes in disclosures, discovery issues, issues of privilege, limits on discovery4. Court can order an expedited schedule

oG) signing disclosures1. Every discovery thing must be signed and must be warranted under law, not used for an improper purpose, nor

unduly burdensome2. No duty to act on something unsigned and the court must strike it unless the lawyer fixes it

Relevance is determined very broadly

o It must be reasonable that it will lead to admissible evidence

Under the newer version of the rule you dont have to initially disclose information that will hurt you although it will later bediscoverable

Just because something is not admissible doesnt mean it is not discoverable

Some examples of privilegeoWork productoAttorney clientoSpousal privilege

Objections to discovery:oPrivilegeo IrrelevanceoCost benefit

All timing in discovery can be altered by the judge

Differences between sanctions under rule 11 and those under 26(g)oSanctions MUST be imposed on 26(g) but MAY be imposed on rule 11o26(g) adds a requirement that the request is not unduly burdensome or expensiveo If you dont sign under 26(g), other parties have no duty to act

Discovery rules are the most widely adopted Federal rules

General discovery of s financial assets has not been allowed

why have a planning conference?oDiscuss positionsoConsider settlingsoArrange for mandatory disclosure

oDevelop discovery plan

What aspects of discovery can the courts limit?o#/length of depositions and interrogatoriesoNot reasonable accessible electronic informationoEnsure requires are proportionate to needs, costs, and burdens of all parties

Proportionality and undue burden are the issues most often brought up in discovery

RULE 16-Pretrial conference- A scheduling order must be issues after receiving 26(f) report or after consulting with parties- The pretrial conference is where the judge meets with both counsel and asks them what they will be arguin

trial; this is where the boundaries on the scope of inquiry is setXIII. Interrogatories

RULE 33: interrogatoriesoA) there can be no more than 25 and they may relate to any nonprivileged, relevant matteroB) answers and objections

1. Interrogatory must be answered by the party or designated officer2. Responding party has 30 days to respond

3. Each question must be answered separately and fully in writing under oath


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4. Grounds for objection must be stated with specificity; any ground not stated in timely objection is waived5. Answers and objections must be signed

oC) use of answer is determined by rules of evidenceoD) if the answer is in a business record and if the burden is the same to both parties, the answering party can identify in d

the way the party can get the records or give the other party an opportunity to make copies

Interrogatories are the most widely used discovery deviceoCheap and easyoCreate a lot of work for the other partyoCan only be directed to another partyoLess important now because of initial disclosuresoBig range of information

Disadvantages of interrogatories:

oAnswers are not spontaneousoEasy to abuse by answering cryptically

If a question is thought to be improper, the responding party may state grounds for saying so; the questioning party can then get a corder

Party has a duty to respond based not only on their personal knowledge but with regard to knowledge of other individuals that canreasonably be obtained through investigation

Objections to interrogatories include privilege and irrelevance

If someone wont answer, you can compel them to answer, but you want to confer with your adversary before running to the court

Why do we restrict interrogatories to parties?

oThere is a level of intrusiveness that comes with interrogatoriesoParties are the ones who need to go look up the information

XIV. Depositions

RULE 30: Oral DepositionsoA) when a deposition may be taken

1. A party can depose anyone without leave of court; attendance can be compelled by subpoena2. Party must obtain leave of court when

a. The parties have not stipulated to the deposition and it would result in more than 10 depositions, theperson has already been deposed, or the party seeks the deposition before the planning conference

b. Person is in prisonoB) notice and requirements of depositions

1. A person must give written notice to any other party when they want to depose someone; the notice must provipersons name or at least a description

2. If a witness is supposed to bring documents with them, the documents must be listed in the notice; this notice mbe accompanied by rule 34 request

3. Notice must state the method of recording the deposition and noticing party bears costs4. Depositions can take place by remote means, the deposition takes place where the deponent answers the questi5. Deposition must be conducted before an officer and must begin with on the record statement at the beginning o

each recording unit and must end the deposition with a statement saying so6. If notice goes to a business, the notice must describe the right type of person to come in and answer the questio

and the business must designate a suitable person

oC) examination and cross examination1. Examination and cross examination of a deponent proceeds as they would at trial under federal rules of evidenc2. Any objections must be noted on the record but the testimony is taken subject to any objections; a person may

instructed to ignore a question only to assert a privilege3. Party can serve written questions under rule 31

oD) duration, sanction, motion to limit1. deposition is limited to 1 day of 7 hours but the court can allow for additional time2. sanctions can be imposed on those who impede, delay, or frustrates the examination

3. at any time a party can move to terminate or limit it on grounds of bad faith, or in a manner that unreasonablyannoys, embarrasses or oppresses and the court can do sooE) deponent has 30 days to review and change their answers and the officer must note whether a review was requested a

attach changesoF) certification by officer must accompany a record of the deposition; documents must be attached to deposition and the

officer must keep a copy of the deposition; when a party files a deposition, they must tell the other parties

How is a deposition more like a legal proceeding?

oThere is an oathoSubject of penalty for perjury

Judges are not present during depositions which is why there is so much bad behavior

Always subpoena a person who is not a party that you want to depose, otherwise if the other party shows up and the deponent d oesthey can recover costs

Depositions can be super invasive and the people basically have to answer

RULE 31 allows for depositions through written instruments

oUsually done for people that you want to send an interrogatory to, but cant because they arent a party oGive the questions of the deposition and the other party has them for 14 days


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o In this situation, all spontaneity is gone

When you take a deposition, make it about the facts, not the lawyer

Benefits of depositions:oSpontaneous answersoGet to ask follow up questionsoWay to figure out strengths of opponents case and facts

Disadvantages;oHigh costsoBad lawyer behavior

A lawyer cannot discuss a matter with a person she knows is being represented by another lawyer without consent

If the person you want to depose lives far away, you need to get a subpoena and then depose within 100 miles of the persons hom

The best place to start an objection is irrelevance; bad faith is a good objection only if you are straight up guessingXV. Using Depositions at Trial

RULE 32: using depositions in court proceedings:oA) using depositions

1. A deposition may be used against a party if the part was present at the deposition or had reasonable notice of itused to the extent it would be admissible if deponent were present, use is allowed by this rule

2. Party may use deposition to contradict or impeach testimony3. Adverse party may use a deposition of anyone who was the representative of the part at the time of deposition4. A party may use a deposition of a witness if the witness is dead, the witness is more than 100 miles ware, witn

cannot attend, party offering deposition could not get the witness there with a subpoena, or on motion or notice

5. Limitations on use6. If a party only uses part of a deposition, the other party may require the use of the other parts7. Substituting a party does not change the use of depositions8. Previous deposition can be used

oB) can make objections to admissibilityoC) party must provide a transcript of any deposition testimonyoD) waiver of objectionoE) completing the Deposition

Hearsay: any out of court statement (including written statements) cannot be used for the truth of the matter assertedo If your asking the jury to believe that an out of court statement is true, that is hearsayoStarted out as a common law doctrine which is now part of the federal rules of evidenceoBased on the idea that we prefer to have live witnessesoNot automatically inadmissible

Depositions and anything generated in discovery is hearsay

Impeachment is a non-hearsay purpose used to show the witness is inconsistent

Depositions are very valuable because they kind of force the person to stick with their story

o If they depart from that story, the jury is told to believe the deposition as substantive evidence and ignore what is said at

XVI. Requests for Admission

RULE 36- Requests for AdmissionoA) scope and procedure

1. Party may serve on any other party a request to admit for the pending action only, any matter relating to the facapplication of law to facts, or genuineness of documents

2. Each matter must be separately stated3. If after 30 days a matter has not been answer, it is considered admitted4. If a matter is not admitted, the answer must specifically deny it or state in detail why it cannot truthfully admit

deny; a party can assert lack of knowledge as reason for failing to admit or deny5. Grounds for objection must be stated and cannot be based on the fact that the matter presents a genuine issue fo6. Requesting party can move to determine the sufficiency of an answer or objection; if an answer does not comp

with this rule, the court can order that it is admitted or that an amendment must be servedoB) a matter admitted under this rule is conclusively established unless the court, on motion, permits it to be withdrawn or

amended; it can only be withdrawn or amended if it would promote the merits of the action and if it would not prejudice requesting party; an admission cannot be used against the party in any other proceeding

Used for pinning down adversaries to an answer

Usually come pretty late in the game

Just like in answers, you can qualify your admission or denial

When it is painful to admit something that is true, you can refuse to admit it and then it is assumed without you actually having to s

The reason there is no default limit on requests for admission is because if it expensive and time consuming to prove facts in court the more you can get out of the way in discovery, the less the parties have to argue about

Sometimes an admission saves you from res judicata in that a specific fact has not gone to trial

Amending is not impossible but is a big deal and requires permission from the court

Interrogatories used to get the information, requests for admission used to nail it down

Cannot do requests for admission before a discovery plan

Time to respond must be long enough so it is not unfair

Advantages of requests for admission


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oDont need a court order for a request for admission

o Inexpensive to use and directoCan save time and money since the issue no longer needs to be litigatedoParties cannot be crypticoRequests for admission are probably the most binding during trial

Disadvantages:oLeast effective because of the reluctance to provide severe sanctions for willful perjuryoThere is an inherent problem in determining when someone truly knows something

Possibilities when presented with request for admission:oAdmit

- An affirmative answer to a request for admission is now a fact in the case and is no longer at issue; it is onthing you have to prove

- No evidence is necessary to establish an admitted fact and no evidence is permitted to refute itoDeny

- Cannot deny on the basis of insufficient information is the necessary information is readily available; the pmust do a reasonable investigation

- Parties normally deny all but the clearest, most unmistakable mattersoDetail why the party cannot truthfully admit or denyoObject because it is improper or because of privilege

oDont respond within 30 day limit- Issue is now taken as admitted

- A court may grant relief to a party who failed to respond granted it was not a willful attempt to evade the r When there is a conflict between answers supplied in response to interrogatories and answers obtained through other questioning,

finder of fact must weigh all the answers and resolve the conflictXVII. Other discovery tools

RULE 34- Production of DocumentsoA) in general

1. Party may serve on any other party a request to produce documents, electronic information, tangible things, or permit entry onto land

oB) procedure1. Contents of request: the request must describe with particularity the items or categories of items to be inspected

must specify the time and place for inspection, and must specify the forms in which electronic information is toproduced

2. Responses and objectionsa. Party must respond within 30 days

b. Response must either state that the inspection will be permitted or state an objection with reasons

c. Objection to part of a request must specify the party and permit inspection of the restd. If a responding party objects to a form for electronic information, or no form was specified, the party

state the form it intends to usee. These procedures apply to electronic information and the documents must be produced as they are ke

the usual order or business or must be organized and labeled or they must be produced as they areordinarily maintained or in a reasonably usable form

oC) nonparties may be compelled to produce documents and tangible things or to permit an inspection

You have to present the documents in some type of order

The producing party must pay for production but the requesting party must pay for copying

RULE 35- Mental and Physical ExamsoA) order

1. A court may order a party to submit to mental or physical examination as long as it is in controversy2. The order must be made on motion for good cause and must specify the time, place, manner, conditions, and sc

of the examoB) examiners report

1. Party who moved for examination must on request deliver a copy of the report along with all reports of earlierexaminations of the same condition

2. Report must be in writing and set out disgnoses, conclusions, and the results of any tests3. Party who moved for exam may request all earlier or later exams of the same condition4. Once a person is examined under this rule, all other exams of the same type are no longer privileged5. If a report is not provided on a motion the court may exclude the examiners testimony at trial6. This also applies to exam made by parties agreement

Because of the intrusive nature of rule 35, some courts used to think it violated 2072

What if you want to examine someone and they will not agree?oMake a motion to the court

- When you make a motion always add a proposed order so it is as easy as possible for the judge to do whawant

Once you submit to an exam, you can get a copy of it

Greenhorn v Marriott:


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oFacts: female employee filed suit against male supervisor alleging sexual harassment, assault and battery, EED. Court gr

motion for to get a physical examo legal issues:

1. s must demonstrate s mental condition is in controversy and that good cause exists to conduct the requestedinformation

2. Rule 35 motions are typically granted when alleges a specific mental or psychiatric injury or claims unusuallsevere emotional distress

3. Rule 35 does not require the exam to be done by an independent examiner (you can always impeach the examilater)

E-DiscoveryoAdverse interference instruction: we dont have this information because the party destroyed it; feel free to draw

conclusions about what the document they chose to destroy contains- Very harsh sanction

XVIII. Privileges

Types of privileges:oWork product: information prepared in anticipation of trialoSpousaloDoctors

oClergyoAttorney clientoAgainst self incrimination

- Arises out of the old idea that parties cannot testify at all The theory behind privileges is that society in the aggregate will benefit from privileges even though in the individual cases, we los

valuable informationoPrivilege is very policy based

Attorney client privilege: protects confidential communication in the course of representationoNever accept anything from a client because chances are it is not confidential communication and therefore is not protect

oAnything you learn from a client is confidential and you cannot disclose it ethically unless ordered to do so by the court

Work product privilege: protects any material prepared for litigation of the matter at hand

oThe underlying information is still discoverable, but the attorney cannot give the information awayo If you prepare something in preparation for litigation but it never goes to court, that material is still protectedoThe lawyers mental impressions, conclusions, opinions, and legal theories are always protectedo26(b)(3) expands the group of people protected by this

You can potentially waive a privilege by allowing outside 3rd parties into the communication

Clawback provision: if you inadvertently disclose something that is privileged, you can grab it back and the other side is not suppto read it (26(b)(5)(B))

Hickman v Taylor: common law work product privilege

oFacts: a tug boat sank and there were five survivors; was a lawyer who conducted interviews of four of the survivors;lawyer in an interrogatory asked for transcripts or oral statements from those interviews

oLegal issues:1. Facts are discoverable, work product is not2. Cans ask for a lawyers transcripts of communication with third parties because asking questions in front of a

adversary as opposed to when alone is very different3. If you could ask for lawyers private thoughts it would be demoralizing to the profession because lawyers wou

never write stuff down and wouldnt do their best work if they had to just hand it over

Work product is a qualified privilegeoWhen witnesses die (or is unavailable) and another person has talked to them, the court will allow those transcripts to be

passed onoWith previous oral statements from people, dont bother trying to claim work product privilege

o If relevant and nonprivileged facts are hidden in attorneys files, they need to be handed over

If you show anything to an expert, even if it is protected by work product privilege, and that expert is going to testify at trial, you mhand it over to the other side

There are 2 definitions of anticipation of litigationoPrimarily or exclusively to assist in litigation

oPrepared because of impending litigation

Work product privilege will hold unless the other party can show a substantial need for the materialsoTo demonstrate substantial need, the party must demonstrate an inability to obtain the equivalent evidence without undu

hardshipXIX. Sanctions

RULE 37- sanctionsoA) motion for compelling discovery or disclosure

1. a party can move for an order compelling disclosure or discovery as long as party has conferred in good faith wother party beforehand

2. motion must be made in court where action is pending3. specific motions

a. if party fails to make initial disclosure, another party may move to compel disclosure and for sanction


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b. party may move for order compelling answer, designation, production, or inspection if the other partfailed to do so

c. when taking deposition, asking party may complete or adjourn examination before moving for order4. evasive or incomplete disclosure is treated as failure to disclose5. payment of expenses

a. if motion is granted or discovery is provided after the motion is filed, the court can require the party treasonable expenses (after giving opportunity to be heard) unless

i. movant filed motion before conferring in good faith with other partyii. nondisclosure was substantially justified

iii. award would be unjustb. if notion is denied, court can issue protective order and require the party to pay expenses unless the m

was substantially justified or award would be unjustc. if motion is granted in part and denied in part, court may apportion expenses to be paid

oB) failure to comply with court order1. If the court where discovery is taken orders deponent to be sworn in or answer a question and he doesnt, it can

treated as contempt of court2. Sanctions where the action is pending

a. If a party fails to obey an order to provide or permit discovery, the court can issue further just ordersb. If a party fails to provide a person for examination the court can issue any sanction except contempt

court unless the disobedient party shows it cannot produce the other personc. Court can order payment of fees unless the failure was substantially justified or other circumstances m

an award of expenses unjustoC) Failure to disclose or supplement

1. If a part fails to provide information or identify a witness that party is not allowed to use that information or wiunless the failure was substantially justifies or is harmless

2. If a party fails to admit under rule 36 and the other party proves them wrong, the court can order the party to pareasonable expenses incurred in proving it unless

a. The request was objectionableb. The admission was of no substantial importancec. Party failing to admit had reason to believe it would prevail on the matterd. There was another good reason

oD) failure to attend own deposition1. The court on motion can order sanctions is a person fails to appear for their own deposition or a party fails to s

its answers, objections, or written response under rule 33and 34; motion for sanctions must have certification ththere was good faith attempt to confer

2. A failure is not excused on the ground s the discovery sought was objectionable

3. Sanctions must include attorneys fees caused by the failure unless the failure was substantially justified or awexpenses would be unjust

oE) court cannot impose sanctions for failing to provide electronic information lost as a result of routine, good faith operatoF) if party fails to participate in making discovery plan under 26f the court may award attorneys fees

Before trying to bring any sanctions, you need to confer in good faith with the other party and document it

All motions to an adverse party go to the court where the action is pending

There is a slow track and a fast track to sanctionsoSlow track: make a motion, get a court orderoFast track: do something most parties would never do

- Failing to appear for own deposition- Failing to respond to interrogatories or requests for admissions- Court MUST award attorneys fees

You can still be sanctioned if you hand over what the other party wants after they have already filed the motion

In all cases, the parties must be heard and explain whats going on

Where else are there sanctions?

o26(G): signing disclosures and discovery requests- Decision to impose sanctions is mandatory

o16(F): failing to appear for pretrial conference

o30(g): noticing party doesnt go to deposition and other party did or noticing party forgot to send subpoena and deponennever showed up

o36(a)(6): expenses awarded on finding that answer to request for admission was insufficiento30(d)(2): party impeding, delaying, or frustrating fair examination of deponent

o1927: applies to attorneys acting in bad faith

Most of the time, both parties will move for attorneys fees and they will cancel each other out and neither party will get attorneys f

37(c) is the moderate track because you shouldnt need a court order to disclose, you just do it

Legault v Zambarano: court should only penalize improprieties that are sufficiently egregious to warrant them and clearly supportethe record

oFacts: brought suit for employment discrimination act by fire department. contended the test excluded women from hthen it later comes out nobody is even using the test anyways. There were flat violations of 16(g)(2) in filing false

interrogatories


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oLegal issues:1. Most of the time the trial courts findings on sanctions will be upheld2. The position of was a hoax perpetuated through discovery responses and eventually conceded and caused

substantial delay and expenses which called the judge to action3. The extent to which a partys failure to file pretrial papers in a timely manner puts an opponent into an unfair

position which is translated into a sum of money4. A court will award sanctions even if the motion for sanctions is bad, if the record supports it

The standard for reviewing sanctions is not whether you would have done the same thing, but whether the judge abused his discreti

What does judge consider in determining the sanction of dismissal (harshest sanction)?o If failure prejudiced other party

oHistory of partiesoOther failures in same caseo If failure was justifiedoBurden to answer

Sanctions will be sustained when the infirmity of the violated order is not clear and the sanctions imposed are moderate

Trial and After Trial

XX. Summary judgment

RULE 56: Summary judgmentoA) a party claiming relief may move for SJ on all or part of claim

oB) defending party may move for SJoC) timing and proceedings

1. Party may move to SJ any time until 30 days after close of discovery; party opposing motion must fial responsdays after motion is served or responsive pleading due whichever is later; movant may file reply 14 days afterresponse is served

2. SJ should be granted if there is no genuine issue as to any material fact and the movant is entitled to judgment matter of law

oD) if SJ is not rendered on the whole action, the court should determine what facts are not at issue and specify those factfacts specified are treated as established in the action; interlocutory SJ can be rendered on liability alone

oE) affidavits and further testimony1. An affidavit must be made on personal knowledge, set out facts that would admissible in evidence and shows t

affiant is competent2. When a motion for SJ is made, the opposing party cannot rely on allegations and denials in its own pleading bu

must set out specific facts showing a genuine issue for trialoF) if an opposing party cannot present facts essential to justify its opposition, a court may deny the motion, order a

continuance, or use any other just orderoG) if an affidavit is submitted in bad faith or solely for delay the court can award attorneys fees

Favoring summary judgment over jury trials becomes a policy issue

Motions for SJ are overwhelmingly brought by the defense because it is an amazing vehicle for ending cases

Move to SJ if as a matter of law, there is no genuine issue of material facts

oAn issue of fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party

What is the relationship between 12(b)(6) and SJ?oSometimes a SJ is just a delayed 12b6oCant add external information outside of pleadings for 12b6

When MSJ is made, take everything the nonmoving party says as true

Burden for the motion is on the person who makes the motion, but the actual burden of proof never shifts

One of the principal purposes of SJ is to dispose of factually unsupported claims

oSJ evolved to intercept bad claims to avoid unnecessary trialsXXI. Equitable Remedies (RULE 65)

Declaratory judgment: go to a court claiming someone is about to impede your rights and ask the court to tell them not tooHowever, there must be an active controversy

Preliminary injunctions and temporary restraining orders are court orders entered prior to trial for the purpose of protecting th

rights of the from irreparable injury during the pendency of the action

oExtremely flexible remedyo Intended to preserve the status quooDecision is at the discretion of the courtoWont be given if there is an adequate remedy at law

oHave all the force of a permanent injunction during their periods of effectivenessoCourt requires security in the amount the court considers proper to pay the costs and damages sustained by any party fou

be wrongfully enjoined or restrained

To get a preliminary injunction must demonstrate that is acting in a manner that will irreparably injure or the final judgmentthe merits will be ineffectual

oMade at a hearing after notice to

o If can how this prior to the hearing, they may get temporary restraining order

Temporary restraining orders are granted ex parte


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oOnly remains in effect until the hearing on the motion for preliminary injunction takes place

If the facts are in dispute, the court will normally refuse the injunction

Courts will use extreme caution if the preliminary injunction is basically the same remedy as would be given at the end of trial and remedy wont be given without a clear showing of necessity

o In considering whether there is necessity, courts balance the relative inconveniences of the parties

Failure to obey injunction or restraining order may be punishable my contempt if even if it was wrongly granted and later overruled

State provisional remedies:oAttachment: seizure of s property in advance of judgment

oGarnishment: makes debt owed by third person to similarly subject t s claim

Most courts weight some combination of

odamage to if injunction deniedowhether that harm exceeds the harm to if injunction granted

o the likelihood of prevailing at trialXXII. Juries and Trials

RULE 38: right to jury trialoA) right to trial by jury given by 7th amendment or as provided by federal statute is preserved to parties alwaysoB) on issue triable of right by a jury, a party may demand jury trial by serving written demand no later than 14 days after

pleading or filing demand under 5(d)oC) in the demand a party may specify the issues it wishes to have tried by the jury, otherwise it is assumed the party dem

a jury trial on all issuesoD) a party waives jury trial unless demand is properly served and filed; proper demand may be withdrawn only if parties

consent RULE 48: jury must have 6 and no more than 12 members; verdict must be unanimous; if party requests court can poll the individu

jurors to reveal a lack of unanimity

Juries dont have to give their reasons, but the court does if there is no juryoRULE 52(a): if there is no jury the court must find facts specifically and state conclusions separately

28 USC 1870: each party gets three preemptory challengeso If there are multiple parties on one side, each party gets their three but the court can limit this

A judge can make many important rulings in the course of a jury trial consistent with right to jury like ruling on admissibility ofevidence or instructing the jurors on the state of the law

Pros of jury trial:

oJury represents important democratic institutionoPositive force of civic participationoEducates citizens about the operation and importance of the law

Cons of jury trial

oSubject matter and complexities of many caseso Introduce inconsistency and unpredictabilityoDraws out the proceedings

Voir dire: examination of the jurors individually

oConcerns their background, knowledge of the parties or controversies, ability to render impartial judgmentoYou can only dismiss someone for causeo In federal courts this is usually done by judge, in state courts by lawyers

RULE 47: court or parties can examine juries, the court must allow 3 preemptory challenges, and the court can always excuse a jurgood cause

Bifurcation: splitting the trial among issues, parties present the issues and courts adjudicate n that issues

oSaves time and money if the first adjudication disposes of the caseo Isolates evidence that is germane to only one of the issuesoMight distort adjudication of the other issues

RULE 42: the court can order separate trials for issues, claims, crossclaims, counterclaims, or thirdparty claims and this preserves tright to jury

Witnesses may only testify as to matters within their knowledge and unless they are expert, may not offer opinions

Leading questions are only appropriate on cross-examination

Trial subpoenas have the same conditions as discovery subpoenas except a witness within the state may be required to travel more100 miles to testify at trial

Origins of jury trialo7th amendment: one of the few that is not incorporated to the statesoDemand by party

Even though you are entitled to a jury, you dont necessarily get one

Order of the civil jury trial:

oJury selection

oOpening

os case in chief

oRule 50(a) motion for judgment as matter of

law (directed verdict)os case in chief

oRule 50(a) motion for directed verdict

os case in rebuttal

os case in rebuttal

oClosing

o

InstructionsoJury deliberation


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oVerdict-special or general

oPost verdict motions

1. Rule 59 for new trial

2. Rule 50(b) motion for judgm

as matter of law (judgment n

XXIII. Motions after trial

The jury finds facts, the judge makes decisions as a matter of law

RULE 50: Judgment as matter of law

oA)judgment as matter of law1. After a party has been fully heard on an issue and the court finds a reasonable jury would not have a legally

sufficient basis to find for the party on that issue the court may resolve the issue against the party and grant a mfor a judgment as a matter of law

2. Motion for judgment as matter of law may be made at any time before the case is submitted to the jury; motionspecify judgment sought and the facts that entitle the movant to judgment

oB)renewing motion after trial1. If the court doesnt grant 50(a), the action has been submitted to the jury. 28 days after entry of judgment, the

movant may file a renewed motion for judgment as a matter of law and may include a rule 59 motion. In rulingrenewed motion judge can allow judgment on the verdict, order new trial, direct judgment as matter of law

oC) granting renewed motion1. If the court grants the renewed motion for judgment as matter of law, it must also conditionally rule on any mo

for a new trial and must state grounds for conditionally granting or denying the new trial2. Conditionally granting the motion for new trial does not affect judgments finality

oD)motion for new trial by a party against whom judgment as a matter of law is rendered must be filed no later than 28 d

after entry of judgmentoE) if court denies motion for judgment as matter of law, prevailing party may assert grounds for new trial should appellat

court decide the trial court erred in denying the motion. If appellate court reverses, it may order new trial

50(a) used to be called directed verdict, 50(b) was jnov

Judge can grant directed verdict whenever a reasonably jury could not have found for the partyoWhen it can go both ways, the jury decides, but when it can only go in favor of one side the judge has the last word

Once makes a good case and believes that no reasonable jury could not find against them, can they move for directed verdict?

oNo, has not been fully heard

o is the one who would move for directed verdict afters case because the has been fully heard and they have nothing

If you dont make the 50(a) motion, it is waived and you cannot make a 50(b)

o If the judge wants to reverse the jurys decision you need to give them a tool to do so previous 50(a) motion

When else as a matter of law does the judge refuse to let the issue go to the jury?o12(b)(6)oSummary judgment

Why could a judge deny 12(b)(6) and summary judgment and then grant directed verdict?oAt 12 (b)(6) the judge only has the pleadings, at summary judgment the judge only has the relevant admissible evidence

oAt rule 56 judge has to guess what the jury will hear, at 50(a) the judge has already heard half the case

In 50(a) the judge cannot reweigh the evidence

o If reasonable minds could differ as to the verdict 50(a) cannot be granted

What is going on when the judge grants 50(b) after a wrongjury verdict but didnt grant 50(a)?

oDoesnt want the case to go to appellate court and have them decide that it is possible that a reasonable jury could have

the same way

oA de novo standard of review makes it easier that the appellate court will find some jury could find a certain way

oAlso, need to let the issue go to the jury because there is a presumption they are reasonable

- If this presumption is wrong, this is when the judge grants 50(b)

oPermits the court to consider the question for a longer period of time

If 50(b) is overturned by appellate court, jury verdict is affirmed

RULE 59: New Trial

oA) in general1. On motion the court may grant new trial on all or some of the issues to any party after a jury trial or a nonjury 2. After a nonjury trial the court may open the judgment if one has been entered, take additional testimony, amend

findings of fact and law and direct entry of new judgmentoB) motion for new trial must be filed no later than 28 days after entry of judgmentoC) when motion for new trial is based on affidavits, they must be filed with the motionoD) no later than 28 days after entry of judgment, the court on its own may order a new trial

oE) motion to amend or alter a judgment must be filed no later than 28 days after entry of judgment

Why would a judge grant a new trial on his own motion?oFixes judges own errors due to factoJudge made legal errors in instructionsoJudge basically disagrees with the jury, the verdict is against the great weight of the evidence

- He needs a definite and firm conviction a mistake has been made

Partial new trials are particularly common with damages

If a new trial is granted it is not appealable until after the second trial


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Always move for jnov and new trial at the same time

Motion for jnov stops the clock on appeal

New trials granted in basically two situations:oErrors in jurys evaluation of evidenceoErrors in the trial process, including errors in the law applied

Directed verdict and jnov are the last in a serious of 5 motions used to decide civil cases on the merits and interrupt the ordinary tri

processo In all the question is: do the established facts support a legal rule which should be applied to decide all or part of the case

1. 12(b)(6)2. Motion for judgment on the pleadings 12(c)3. Summary judgment

- 1,2, and 3 terminate the case before trial begins4. Directed verdict5. Jnov

- We need the last two because treating a jury verdict as an established fact may deny parties substantive juXXIV. Appeals

Comity: respect for others authority

Finality rule: only final decisions are appealable!!

oStatutory through USC 1291oExceptions to final decision rule:

- USC 1292(a)(1): injunctions are immediately appealable

o Why? They happen so soon that there is less of a chance of the appellate court stepping on trialcourts toes

- USC 1292(b): controlling matters of lawo If there is a substantial issue on a controlling question of law, the appellate court can take over i

which are otherwise not appealableo Issue is one that may materially advance the termination of the caseo District court needs to agree to this

- Collateral order doctrine: very restrictive judge-made exception to final judgment rule

o 3 part test: Must finally and conclusively determine an issue Issue resolved must be completely collateral to the merits Effectively unreviewable on appeal

o Classic examples: double jeopardy, absolute immunityoFinal judgment rule determines not whether the appellate court will review a particular ruling, but whenoFinal judgment is order that ends the litigation on the merits and leaves nothing for the court to do but execute the judgm

Advantages of final judgment rule:oSingle appeal with all objections is more efficient than individual appealsoSaves timeoAppellate court has broader view of the caseoMore respect for trial judgeoPrevents delays by partiesoThe appellate court doesnt want to micromanage, the trial court is in a better position to make those little decisions

Precedents on finality are not readily transferable from one jurisdiction to another

There are limited interlocutory appeals: very few opportunities to go to an appellate court on an issue that was decided in the midtrial court

oContempt is one way you can immediately appeal

RULE 54(b): judge can grant final judgment as to one claim or party (in an action with multiple claims and parties) and certify thatis no just reason to delay an appeal

oWithout this certification, no appeal will lie

oAppellate court then decides de novo whether in fact multiple claims are presented or whether the trial judge merely ruleone of the alternative theories on which the claim was based

Advantages of interlocutory appeal:oMore efficient if the issue on which appeal is sought is determinative and gets rid of unnecessary trial

oCorrect errors as you gooJudgment less likely to be reversedoMore guidance of lower courts

Jury instructions are one of the key ways to appealo It is an appeal on a legal rulingoThe standard is de novo and gives less deference to lower courts

Mandamus: suing the judgeoNot to be used as a substitute for appealoUsed only when the judge is acting way outside his jurisdictionoSevers any good ties you have with the judgeoUses abuse of discretion standardoMandamus is not punitive, it serves an important corrective and didactic function


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oWrit is justified under 3 circumstances:1. District courts legal position is clearly wrong2. Petitioner had no other adequate remedy3. Point of law was a general important one

RULE 52: on motion no later than 28 days after judgment is entered, court may amend its findings or make additional findings andamend it judgment. This can accompany a rule 59 motion

Standards of review:oDe novo

- judgment as matter of law (50a,50b)- 12(b)(6)- jury instructions- 56

o Abuse of discretion- 59- Almost all of discovery- Rulings on evidence- injunctions

o Clearly erroneous standard- Questions of fact

o It is easier to do something about legal errors than fact finding

Res Judicata

XXV. Res Judicata

the thing has been decided

Overall policy:

o Inefficient o keep allowing parties to get to courto needs to eventually move onoDont want to subvert the courts authorityoRespect for finality rule, it has to be over sometime

Why shouldnt we allow res judicataoFairness and accuracyoWhat if some injury doesnt arise until afterthe statute of limitations is over

If only correct judgments were final, no judgment would preclude relitigation of the controversyoCourts would have to retry the case on the merits, negating the purpose of the doctrine

The relaxation of joinder law brought a corresponding tightening of preclusion law

Rush v Maple Heights:

oFacts: sued for damage to bike from motorcycle accident and won. Then tried to bring case for personal injurieso Issues:

1. The test can be whether the same sort of evidence would prove both cases2. There is no valid reason in these days of code pleading to adhere to the distinctions between personal injuries a

property injuries3. Where a person suffers personal injuries and property damages as a result of the same wrongful act, only a sing

cause of action arisesXXVI. Claim Preclusion

Always analyze claim preclusion firstif the claim is precluded, dont bother going into the issues

Forbid relitigation of the same claim in a subsequent proceeding

Not concerned with where the claim has been litigated

Not just about what WAS litigated but what SHOULD have been litigated

Res judiciata asks when MUST claims be joined

Merger: wins and win is merged into the next action

Bar: loses and is barred from suing again

to determine whether it is the same claim, ask whether it comes up in the same transaction

Distinction between claim preclusion and stare deciesis

oStare deciesis

1. applies only to law

2. Binds everyone

3. Is very malleable

oRes juditication

1. only binds the specific parties

2. Must more factually based

A claim against a different party is not the same claim and is therefore not precluded!oThis is because we cant force to join parties if they dont want to

Fairness is not a big issue

oPolicy of claim preclusion is to avoid inconsistent judgments and from sore losers keep trying to get a decision in their fa

o It is a harsh doctrine

oDoesnt matter if the law changes after the claim is litigated

1. Exception: if you stated in first complaint a good faith argument for changing the law and then the law does ac

change after your claim has been decided, you can be grandfathered in


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Elements of claim preclusion:

o Is this the same claim?

oWas this a final judgment?

oWas this a valid judgment? (doesnt mean that the decision was right)

1. Is it subject to collateral attack?

oMust have been on the merits?

1. Ex. If case is dismissed for lack of personal jurisdiction, this is not on the merits, claim is not precluded

2. Default judgment is on the merits

3. RULE 41: if fails to prosecute, comply with the rules or court order, may move to dismiss the action or cla

Any dismissal, except for jurisdiction, venue, or failure to join under 19, operates as adjudication on merits

a. However the judge has discretion and can state otherwise

b. Dismissed with prejudice=on the merits cant sue again

oMust be the same parties

1. Sometimes a legal relationship is so close (privity) that if one party sues then the other has

Policy:

oGives effect to judicial authority

oFrustrates any sense of repose in the parties

oPromotes efficiency, requires parties to consolidate multiple theories of recovery in single suit

XXVII. Issue Preclusion

RS 27: when a issue of fact or law is actually litigated and determined by a valid and final judgment, the determination is conclus

a subsequent action between the parties whether on the same or a different claim

oWas it actually litigated?

oWas it essential to the judgment?

Forbids relitigation of specific issues tried in courto Issues of either law or fact apply

Policy

oAllowing the same claims over and over would waste timeo Inconsistent judgmentsoUnfair to

What is not actually litigated?oDefault judgmentoA matter admitted under

Involves a lot of fairness issues Was it essential to judgment?

oAsk what did the finder of fact have to believe

o If has multiple defenses and she wins, we dont know what the winning defense was and what issue is precluded?

XXVIII. Collateral Estoppel

Mutual preclusion: idea that only people who are permitted to use issue preclusion are those who took the risk in the prior case tobound by that decision had it been in the prior case

oStranger is not precluded because he is not bound by the prior adjudication

We never bind strangers to an action

oBecause we dont require s to join the actionoSo can a stranger benefit from an action in which she was not a party?

Old rule: because a stranger cannot be bound, it isnt fair to let he stranger benefit

Defensive nonmutual collateral estoppels: the stranger uses a previous action as a shield

oEx. B is suing D for being in his treehouse and D wins. B then tries to use Z for being in the treehouse. Z can use the firs

in defensive estoppelsoBenefits:

1. Gives incentive to bring suits together otherwise if he loses in the first trial, issue preclusion will hurt him second trial

oDisadvantages:1. Tendency to litigate people to death because of fear of use of DNCE2. May lead to inefficient settlementssettlements not actually litigated so other s wont be able to use it

Offensive nonmutual collateral estoppel: stranger uses the first trial as a swordoDisadvantages:

1. Gives s reason to adopt wait and see mentality2. Issues of fairness

We always let the stranger sue, issue is whether or not to allow collateral estoppels

Assert CE through partial summary judgment

Jurisdiction


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SMJ Personal jurisdiction

Focus Does the court have power over this type of case? Does court have power over ?

Policy Federalism, keeping courts unclogged, fairness to out ofstate litigants

Fairness, respect for the state sovereignty

Constitutional source Article III 14t /5t amendment, due process, full faith and cre

Statutory sources 1331, 1332 Long arm statutes

Waivable? No yesSubject to collateral attack Yes yes

XXIX. Subject Matter Jurisdiction

Subject matter jurisdiction: does the court have the power over the subject, are they allowed to hear the case?

o Can never ask for subject matter jurisdiction for something that is not covered by the Constitutiono Everyone has the obligation to raise an issue of SMJ, even the judgeo Even if the parties agree there is SMJ, it doesnt matter

o SMJ is determined CLAIM BY CLAIM!o Once a court determines they lack subject matter jurisdiction, they cannot hear any arguments or offer any opinions on any

aspect of the caseo Found in 12(b)(1) and is NEVER waivable!

Where does the power to hear a case in federal court come from?o USC 1331: district courts have original jurisdiction of all civil actions arising under the Constitution, laws, or US treaties

No amount in controversy requirement

This is the power to hear federal questionso Article 3: defines the judicial power of the US

Just because article 3 provides for jurisdiction, it doesnt necessarily mean you are going to get it, Congress stillto give it to you

o USC 1332: statutory diversity of citizenship Requires an amount in controversy above $75,000

Need complete diversity no can be from the same state as any Diversity is not a Constitutional right so Congress can basically waive it

If the federal court denies SMJ the case needs to go to state court

Part of the reason 1332 is so restrictive when Constitution is so broad is because Congress wants to protect the Federal Courts fro

having too many cases that could have been decided by state courts

Concurrent jurisdiction: case can go either to federal court or state courtoState court is always an option

State courts are often broader than federal courts

oYou can bring federal questions in state courtoThe only time a state court cannot hear a claim is when it is exclusively federal

When does a federal court have SMJ?oDiversity of citizenship

- Parties all from different states- Amount in controversy above $75,000

o Complete diversity is still the standard because of StrawbridgeoFederal question

Figuring out citizenship

oHow do you determine what state you are a citizen of?- Most recent state you have resided in with the intent to remain indefinitely. Intent to remain indefinitely is

residing in a place for an open ended amount of time, with no intent to leave at a definite time or on theoccurrence of a definite event

o Evidence about practical affairs may help demonstrate subjective intent, but intent controls- What controls is the intent to stay in the state

- Goes by the last place you resided with intent to stay- A resident is not the same thing as a citizen- Person cannot be a citizen of a state without being a US citizen you must be US citizen and domiciled i

state- It is possible to be a citizen of the US without being a citizen of any state

oWhat about aliens?- aliens with permanent residence are considered citizens of the state in which they are domiciled- the problem is that an alien domiciled in one state can sue an alien domiciled in another state, this would b

federal case the Constitution does not allowocorporations (1132(c))

- either where it is incorporated (can be more than one state) or- principal place of business (can only be one!)

o muscle center test: where most of the everyday activities take place most courts use this

o nerve center test: where headquarters areocitizenship is not bothered with the state in which the dispute takes place


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amount in controversy requirement:

oarbitrary number with a very liberal test

o the question is whether it would be possible for to recover $75,000?- Even if it is doubtful, the amount in controversy is met

Supplemental jurisdiction: a claim can be supplemental to an anchoring claim as long as it arises from the same occurrence

oAs long as one claim can be legitimately brought in federal court, the other claim can come with ito

Must arise out of same transaction or occurrence!oGenerally every claim needs SMJ, if not you need to justify bringing it in federal court and supplemental jurisdiction is o

way to do so

oA single may aggregate their claims against a single to meet the amount in controversy

Just because a rule says you can add a party doesnt necessarily mean you have SMJ over the claim a rule cannot grant a power constitution would not allow

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