Civil Procedure II – Professor SmithSpring 2003Stephanie Deckter

I. Preparing for TrialA. The Scope of Discovery

1. General Scope Rule 26(b)(1) – What is Available to the Other Party

o Any matter relevant to a claim or defense of any partyo Information that is not privilegedo Information need not be admissible at trial if it is “reasonably calculated” to lead

to admissible evidence Rule 27 – Depositions Before Action or Pending Appeal

o Preserve evidence that may disappear before trial, e.g. witness death, move out of country, etc.

o Presently unable to bring an existing claimo Must petition court and be granted ordero Must give notice to the other side

Kelly v. Nationwide Mut. Ins. Co.= Kelly was attempting to recover from his insurance company after someone poured sugar in the gas tank. Δ requested 42 interrogatories. Court held that interrogatories are proper when relevant to an issue in the action as distinguished from merely being relevant to an issue in the pleading of the inquirer, they do not seek privileged information, and the information would be admissible at trial. OLD THEORY OF DISCOVERY – Can only ask for information that relates to your own case

Grant v. Huff = Π cannot discover Δ’s ability to pay a possible judgment by seeking information on Δ’s assets because the information would not be admissible at trial. Court also rejected Π’s attempt to discover names and addresses of those witnesses Δ intended to use at trial because she was not entitled to know which witnesses would actually be called to the stand. BUT – Professor Smith said that parties can discovery information about an adversary’s wealth if they are seeking punitive damages Which is it?

Lindberger v. General Motors Corp. = Rules of Evidence provide that information regarding changes made to the product after the injury is not admissible at trial. However, Rule 26(b) only requires that the information be relevant to the subject matter of the action (& lead to admissible evidence) and does not require that it be admissible at trial.

Policy behind discovery

PRO-BROAD DISCOVERY ANTI-BROAD DISCOVERY FAIRNESS – Power/wealth disparity –

unfair resources cases not decided on merits

ACCURACY – Remove facts NOT in issue

COST – Leads to settlement/motion resolution without trial save resources + no duplicate effort

ABUSE – No incentive to resist

FAIRNESS – Incentives to do your own work (no piggybacking) purpose behind adversary system – best side wins

ABUSE – Abuse potential from both sides harassment, outlast/out-$ the other side, fishing expeditions

COST – Lots of disputes very early on in suit – constantly asking for court intervention against efficiency

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discovery requests if almost everything is allowed

PUBLIC INTEREST – Courts should determine if ordering discovery on a particular issue, e.g. defective product, would be in public’s interest incentive for party not to do it again

ACCURACY – More issues get addressed in open court

PRIVATE INTEREST – Better to keep secret formula of Coke secret

2. Discretionary Limits on the Scope of Discovery Rule 26(b)(2) – Limits

o Court may alter limits in the rules on the number of depositions, interrogatories, or length of depositions

o Court can limit discovery when discovery sought is unreasonably cumulative or duplicative obtainable from some other source that is more convenient, less

burdensome, or less expensive party seeking discovery has had ample opportunity to obtain the

information sought burden or expense outweighs its likely benefit

Rule 26(c) – Protective Orderso 1st: Confer with other side and negotiate what protective order will requireo 2nd: Show “good cause” for the protective order, i.e. must protect against

“annoyance, embarrassment, oppression, or undue burden or expense”o Court balances parties’ interests

Importance of information to case How burdensome/embarrassing How to lessen the burden/embarrassment – e.g. redaction Judges usually sign off on negotiated agreements

o Documents available from Government under Freedom of Information Act

Marrese v. American Academy of Orthopaedic Surgeons = Πs wanted to discover documents relating to denials of membership applications. Files were held to be highly relevant to the suit, i.e. only way to disclose pattern of discrimination, Δs compelled to turn them over but a protective order was allowed

B. Mechanics of Discovery1. Mandatory Disclosure

Rule 26(a)(1) – Items that Must Automatically Be Disclosedo Items that must be disclosed before any discovery requests

People likely to have discoverable information & what it is Copy or description of all documents and tangible things Computation of damages (very complex) Insurance policies

o ONLY INFORMATION THAT THE DISCLOSING PARTY WILL USE TO SUPPORT ITS CLAIMS/DEFENSES

o Some types of proceedings are exempto Must be made within 14 days after the Rule 26(f) conference more time may

be stipulated or ordered by courto If something that should have been turned over is found later, must turn it over as

soon as possible 2

o If a party does not turn over information during discovery, he/she cannot use it at trial

Comas v. United Telephone Company of Kansas = Fight about what is covered under Rule 26(a)(1), i.e. is Δ required to turn over personnel files on all those persons whose treatment is at issue and should they be redacted or unredacted?

2. ORAL Depositions Rule 30 – ORAL Depositions

o Rule 30(a) – Depositions may be taken without leave of court except Deponent is imprisoned Proposed deposition would result in more than 10 total depositions taken

by any party Person has already been deposed in the case Before the Rule 26(f) conference and the person is expected to leave the

U.S.o Rule 30(b) – General Requirements

Reasonable notice about who, what, where, when, etc. must be given in writing to all other parties

Notice shall state method of recording testimony Depositions must be before an officer of the court (under Rule 28) and

begin with a statement by that officer Notice may include request for documents and tangible things to be

brought to deposition (as long as in compliance with Rule 34) A corporation or partnership or association or governmental agency shall

be a named deponent If corporation = 3d party, requesting party may request a particular

person or someone with knowledge of a particular subject BUT organization shall designate one or more officers to testify if

that person has more/better knowledge of the subject-matter Parties can stipulate deposition by phone or other remote means

o Rule 30(c) – Must proceed as if at trial Deponent can be asked anything for any matter relevant to any

claim/defense of any party Party can object to any part of deposition, but the deponent must answer

the question anyway – the objection will be in the record and can be argued in front of the Judge later

If no objection, may waive the right to object later Unless privileged information requested #1 TIME WHEN DEPONENT

CAN REFUSE TO ANSWER QUESTIONo Rule 30(d) – Schedule/Duration & Motion to Terminate or Limit

Any objection must be stated concisely in non-argumentative and non-suggestive manner – instruct deponent not to answer only when enforcing court direction, preserve privilege, or to present a motion under Rule 30(d)(4)

Limited to one day of seven hours can extend under Rule 26(b)(2) Sanction may be imposed if any party has frustrated fair examination of

deponent Motion showing examination conducted in bad faith or to annoy,

embarrass, or oppress deponent or party court can order limit or end of

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deposition #2 TIME WHEN DEPONENT CAN REFUSE TO ANSWER QUESTION

o Rule 30(e) – Deponent has 30 days after the transcript of a deposition is available to review the transcript and if there are changes in form or substance, to sign a statement reciting such changes and the reasons why

o Rule 30(f) – Officer must certify, seal and promptly send deposition + other evidence to the attorney who arranged for the transcript and keep a copy

o Rule 30(g) – If party requesting deposition fails to attend, but the other party does attend, OR if the requesting party fails to serve a subpoena and the witness does not show up, but the other party does, the court may order payment of reasonable expenses incurred by the attending party

Rule 37(d) – Any party failing to appear before the officer who is to take the deposition after being served with a proper notice (no subpoena required for parties) may be sanctioned

Rule 45 – Attendance of third-party deponents may be compelled by subpoena

Less v. Taber Instrument Corp.= Π subpoenaed director of non-party corporation for deposition. Rule 30(a) does not distinguish between parties and non-parties – therefore, director was required to submit to the deposition at company headquarters.

Advantages to Oral Depositions Disadvantages to Oral Depositions Spontaneous – questions can change with

answers Get sense of how deponent will testify

Costs to both sides of research, preparation, travel, pay officer

Can only get 10 depositions and each may only last one day for 7 hours

3. Depositions Upon Written Questions Rule 31 – Depositions Upon Written Questions

o Without leave of court except Deponent is imprisoned Proposed deposition would result in more than 10 by any party Person has already been deposed Before conference

o Party shall serve notice and the written questions and name deponent and officero Within 14 days after notice and written questions served, party may serve cross

questions upon all other partieso Within 7 days after being served with cross questions, a party may serve redirect

questions upon all other partieso Within 7 days after being served with redirect questions, party may serve recross

questions upon all other parties o Officer will receive copy of notice and all questions served

Use of Written Depositionso Loses all advantages of oral depositionso BUT – much cheapero Also, interrogatories are for parties ONLY and limited to 25 good to get

baseline information from parties beyond 25 or non-parties4. Interrogatories to Parties

Rule 33 – Interrogatories to partieso Rule 33(a) – Can serve upon any other party up to 25 interrogatories (including

all discrete parts)4

May get more with leave of court Duty to answer if the information requested is “reasonably available to the

party”o Rule 33(b) – Answers & Objections

Answered in writing under oath – otherwise, state reasons for objection and answer to the extent that it is not objectionable

Answers must be signed 30 days to send back answers &/or objections Any ground not stated in a timely objection is waived

o Rule 33(c) – Scope May relate to any matter relevant to a claim or defense of any party Opinions/contention relating to fact or application of law to fact is not

necessarily objectionableo Rule 33(d) – If answer may be derived/ascertained from business record, and the

burden for doing so would be “substantially the same” for either party, it is a sufficient answer to specify the records that contain the answer and to afford the party serving the interrogatory an opportunity to examine the records with a roadmap

Advantages to Interrogatories

Disadvantages to Interrogatories

Good to get access to business records of opponent (if they are a corporation)

Costly to other side

No spontaneity Lawyer usually drafts response Costly to other side – especially if answer is burdensome to

find Easily becomes tactic of abuse/harassment Mandatory disclosures usually provides most information that

would be reasonably obtained by interrogatory

Riley v. United Air Lines, Inc. = Π served an interrogatory on Δ asking how the accident occurred. Δ answered by saying “I don’t know” because all crew members died in the accident. Court held that Δ was required to answer the question regardless of when or from whom it had acquired the information. Example of how answering party may be abusive, i.e. deliberately over- or under-responsive

5. Discovery & Production of Property

Rule 34(a) – Party may requesto Documents in the possession, custody, or control of a partyo Tangible things in the possession, custody, or control of a partyo Entry upon designated land or other property

Rule 34(b) – Procedureo Request shall set forth individual items, or category of items requested described

with “reasonable particularity”o Reasonable time, place, and manner shall be specifiedo Receiving party shall serve written response within 30 days after requesto Party may object, but must permit inspection of all non-objectionable itemso Party shall produce documents as they are kept in the usual course of business OR

shall organize and label them to correspond with request categories Rule 34(c) – Non-parties may be compelled to produce documents and things or to

submit to an inspection as provided in Rule 45.5

Rule 45 – With a subpoena, non-parties may be compelled to produce documents and things or to submit to an inspection

o Non-parties can get out of it by Showing hardship, i.e. benefit << burden Seeking a protective order under Rule 26(c) for “undue burden or

expense” Moving to quash the subpoena

Advantages to Document Production Disadvantages to Document Production

Helpful to discover information not covered by mandatory disclosure, i.e. information relating to claim/defense of the OTHER party

Necessary to actually get those documents listed by opponent in mandatory disclosure

Can discover documents from non-parties (with subpoena)

Easier than old method of subpoena ducus tecum – requesting deposition where deponent must “bring it [documents/tangible things] with you”

Party only has to provide documents directly asked for – likely to construe narrowly in attempt to not provide anything useful

Nothing to keep Δ from keeping shitty filing system (except may go out of business) OR destroying “inactive” files

Sellon v. Smith = Documents relating to the fuel system in x-body cars of certain years were requested. Δ argued that they only had documents relating to all car bodies and therefore, not relevant and did not turn over. Δ not allowed to construe production request so narrowly – documents were described with “reasonable particularity” and they could be turned over exactly as they are kept, i.e. in files containing information on all bodies.

6. Physical & Mental Examinations Rule 35(a) – When the mental or physical condition (including the blood group) of a

party, or of a person in the custody of, or under the legal control of, a party is in controversy

o ONLY on motion for good cause shown TEETH TO THIS STANDARD: Bodily integrity is too important to allow

probing to help an adversaryo Notice to all parties specifying time, place, manner, conditions, scope

Rule 35(b) – Reportso Party examined may request and receive the examiner’s report BUT IS THEN

REQUIRED TO give to the party requesting the examination any other reports, made before or after the instant examination, of the same condition UNLESS the examined person was not a party and he/she cannot obtain the previous/later report

o By requesting and obtaining a report or by taking the deposition of the examiner, the party examined waives any privilege regarding the testimony of any other person who has examined or will later examine the party in respect of the same condition

EQUITY: Need some equity in face of the strict requirements to get the examination

Schlagenhauf v. Holder (DC Judge) = Bus passengers sued Greyhound, Schlagenhauf (the bus driver) & lots of other people. DC Judge ordered 9 specialists for 4 examinations of S

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who is now seeking a writ of mandamus against the Judge. S did not put his condition into controversy and is in court involuntary. Plus, the internal, neurological, and psychiatric exams are completely irrelevant. The only one that is probably ok is the eye-exam since it was a traffic accident. Rule 35 does not specify that the party to be examined be a Π or Δ, merely that he be a party to the “action.”

7. Requests to Admit Rule 36(a) – Request

o Written request for the admission, for purposes of the pending action only, of the truth of any matters relevant to the claim/defense of any party

o May relate to statements or opinions of fact, application of law to fact, genuineness of any documents described (& a copy provided unless previously handed over) in the request

o Each matter must be separately set fortho Matter is admitted unless within 30 days after service of the request the receiving

party serves a written answer or objectiono Party shall in good faith deny the matter or only a part thereofo Lack of information or knowledge is NOT an acceptable reason for failure to

admit/deny unless the party states that he/she has made reasonable inquiry and that the information they do have is insufficient to admit/deny

o Party may not object on the grounds that the matter presents a genuine issue for trial

o If court determines answer/objection does not comply with this rule, may order the matter admitted or that an amended answer be served

Rule 36(b) – Effect of Admissiono Any matter admitted is conclusively established unless court allows withdrawal or

amendmento Admissions are for the purposes of the pending action only

Ethical Considerationso If no evidence, a party can deny something and there will be no sanctions under

Rule 37(c)(2) if the party denying had reasonable ground to believe that it would prevail on the matter

o Always 2 ways to see the world better to just say NO8. Duty to Supplement Responses

Rule 26(e) – Duty to supplement or correct the disclosure or response of any mandatory or any request for discovery with a disclosure or response to include information thereafter acquired if ordered by the court OR

o If party learns that in some material respect the information disclosed is incomplete or incorrect AND this has not been made known to the other party in another manner

o If party learns that the response to an interrogatory is in some material respect incomplete or incorrect AND this has not been made known to the other party in another manner

Rule 26(e) does not apply to answers given during depositions EXCEPT... Testimony of an expert who will provide a report duty extends to information in the

report AND information provided through deposition of expert9. Use of Discovery at Trial

Rule 32(a) – Depositionso Against opponent to contradict/impeach testimony of deponent as a witnesso Deposition of a witness, whether or not a party, if

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Witness is dead Witness is more than 100 miles from place of trial OR out of the United

States – unless absence was procured by party offering the deposition Witness cannot attend because of age, illness, infirmity or imprisonment Party offering the deposition has been unable to procure attendance of the

witness by subpoena When exceptional circumstances exist and in the interest of justice

o A deposition taken without leave of court shall not be used against a party who When served with the notice was unable to get counsel to represent them

at the deposition Received less than 11 days notice of the deposition and promptly filed a

motion for a protective order requesting that the deposition not be held or be held elsewhere and the motion is still pending

o If any part of a deposition is introduced, the rest is fair game for introduction by other parties

o Substitution of parties does not affect the right to use depositions previously takeno A deposition may be used in a later action involving the same subject matter

between the same parties Rule 32(b) – Objection may be made to challenge the admissibility of any deposition Rule 32(c) – Party can offer deposition in stenographic or non-stenographic (with written

transcript) form Rule 32(d) – Errors & Irregularities and when waived if no objections made Rule 36(b) – Any matter admitted is conclusively established unless court allows

withdrawal or amendment

C. Special Problems in Discovery: Work Product, Privilege, and Experts1. Materials Prepared in Anticipation of Trial

Rule 26(b)(3) – Codified Hickman Ruleo Party may discover documents and tangible things prepared in anticipation of

litigation or for trial ONLY upon showing of substantial need and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means

o When showing made Court can order discovery but will protect against disclosure of the mental impressions, conclusions, opinions, or legal theories (called core work product) of an attorney

Rule 26(b)(5) – When party claims work-product privilege, they must describe the nature of that which they are not disclosing in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection

Hickman v. Taylor = Tug boat sank and 5 crew members drowned. One of the families sued Taylor. Π’s interrogatory asked the lawyer for statements he received from interviewing the surviving crewmembers. Δ answered that the statements existed, but refused to hand over any written statements or set forth in detail the content of oral statements. DC held Δ in contempt and sent them to jail. Π could have gotten the information through Rule 30 depositions of the crew members (might be different from what they told Δ’s attorney), Rule 34 document request (wouldn’t work for oral statements and OLD RULE 34 required “good cause” to request documents), OR Rule 30 deposition of Δ’s attorney. Court held that request to hand over written statements and detail of oral statements were work product. Π could have received the written statements upon showing of substantial need and undue

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hardship in getting the same information. Π probably could not get details of oral statements since the attorney needs freedom to proceed without opposing party nosing around, plus any re-telling of the oral statements would be VERY inaccurate, would reveal Π’s legal theories, and would provide incentive to never write down anything all these results are entirely counter-productive to purposes of open discovery. HOLDING: Work product is presumptively unavailable and some kinds are always unavailable.

If discoverable item was created in the ordinary course of business (and litigation is not always imminent because of the type of business) probably NOT work-product

Shelton v. American Motors Corp. (Handout #1) = Π requested documents and Δ complied. Π then deposed Δ’s counsel asking whether she was aware of those documents. Counsel refused to answer (her knowledge of any particular documents could give away her legal strategy, i.e. that those are or are not important). Legal theories are core work product. Answer to this question does not give Π any new facts and is therefore not appropriate. Attorneys really should not be deponents because if they are put on the stand and impeached, they will not be able to be an effective advocate.

2. Privileges and Work Product – The Extent of Protection Rule 26(b)(1) – Parties may not obtain any privileged information

o Only means absolute privilege, i.e. right to not turn over information even if highly relevant

Serves other policies such as privacy and incentive for candid conversation, e.g. priest-penitent, doctor-patient, attorney-client

Attorney-client is only kosher if Actual client, not prospective client Person seeking legal advice No strangers are present

o Work-product is not quite a privilege

Upjohn Co. v. U.S. = Question of who is the client in a corporate context? Communications by Upjohn employees to counsel are covered by the attorney-client privilege. Very strong showing is required to overcome work-product privilege.

3. Expert Information Rule 26(a)(2) – Disclosure of Expert Testimony

o Party required to provide identify of any person who may be used at trial to present expert evidence as part of mandatory disclosures

o If witness is retained or specially employed to provide expert testimony in the case or whose duties as an employee of the party regularly involve giving expert testimony disclosure must include report prepared and signed by witness

o Report must contain Opinions to be expressed and the basis and reasons therefor Data or other information used by witness in creating opinion Exhibits to be used as a summary/support of opinion Qualifications of the witness including publications Compensation paid for study and testimony Listing of any other cases in which witness has testified as expert within

previous 4 years

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o Disclosures must be 90 days before trial OR if evidence is solely to contradict/rebut evidence on same subject matter, then within 30 days after disclosure of the same subject matter

Rule 26(b)(4)(A) – Party may depose any person who has been identified as an expert whose opinions may be presented at trial – but not until after the report is provided

Rule 26(b)(4)(B) – Party may discover facts known or opinions held by an expert who has been retained or specially employed by another party for the litigation and who is not expected to be called as a witness at trial by interrogatory or deposition,

o ONLY as provided by Rule 35(b) o OR upon showing of exceptional circumstances under which it is impracticable

for the party seeking discovery to obtain facts or opinions on the same subject by other means

Rule 26(b)(4)(C) – Party seeking discovery must pay the expert a reasonable fee AND pay the other party a portion of the fees and expenses incurred in obtaining facts and opinions from the experts unless manifest injustice would result

Rule 26(b)(5) – Party may obtain discovery by one or more of the following methodso Oral or written depositionso Written interrogatorieso Requests to produce documents, tangible things, permission to enter lando Physical and mental examinationso Requests for admission

Court may compel deposition of other side’s expert who is not meant to testify IF there are only so many experts in that field in the world and the opponent has retained them all

Perry v. W.S. Darley & Co. = Absent exceptional circumstances, party cannot even get the names of experts retained by the other side who will not testify. If given the name, party can find the expert’s past work, publications, etc. and possibly call them as their own witness if the reason they are not going to be called is because their work is against the opponent’s case. Also, could be a window into opponent’s legal theories, i.e. core work product. Rules of Evidence prevent party from using study or publications by an expert retained by the other side who will not testify

Krisa v. Equitable Life Assurance Society = Draft reports of experts who will testify are discoverable. Disclosure of preliminary reports will ensure that Π will not be deprived of valuable information, but true work product documents can still remain hidden.

D. The Duty to Cooperate in an Adversarial System1. Sanctions and Judicial Supervision of Discovery

Rule 26(f) – Pre-trial conference to plan for discoveryo As soon as practicable and at least 21 days before scheduling conference is held,

parties must confer to Consider the nature and basis of their claims and defenses Consider possibility for prompt settlement or resolution of case Make or arrange for the disclosures required by Rule 26(a) Develop a proposed discovery plan including

Changes to be made to timing, form, or requirements of disclosures under Rule 26(a)

When disclosures under Rule 26(a)(1) will be made Subjects on which discovery may be needed When discovery will be completed

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Whether discovery should be conducted in phases or be limited to or focused upon particular issues

o All parties are jointly responsible for arranging conference, attempting in good faith to agree on proposed discovery plan and submitting to the court within 14 days after the conference a written report

Rule 26(g) – Signatureso Every disclosure, discovery request, response or objection must be signed by an

attorney or an unrepresented party o Signature constitutes certification that to the best of the signer’s knowledge,

information, and belief formed after a reasonable inquiry, Disclosure is complete and correct as of the time it is made OR request, response or objection is consistent with the rules and

warranted by existing law or a good faith argument for the extension, modification or reversal of existing law; not interposed for any improper purpose, and not unreasonable or unduly burdensome, expensive

o If not signed, it is stricken unless it is signed promptly after the omission is called to the attention of that party

o If certification is made in violation of the rule, the court upon motion or upon its own initiative shall impose an appropriate sanction on offending party

Rule 37(a)(1) – Motion to compel shall be made in the action in which the action is pending

Rule 37(a)(2)(A) – If a party fails to make a Rule 26(a)(1) disclosure, any other party may move to compel disclosure and sanctions

Rule 37(a)(2)(B) – Discovering may file a motion to compel ifo Deponent doesn’t answer a questiono A company doesn’t make a designation under Rule 30(b)(6) or 31(a)o An interrogatory isn’t answered under Rule 33o Party fails to respond to a request for inspection under Rule 34

Rule 37(a)(3) – An evasive or incomplete disclosure, answer, or response is treated as a failure to disclose, answer, or respond

Rule 37(a)(4) – Motion to compelo If granted (or party complies after motion is filed) Court may require the party

&/or their attorney to pay the other party’s reasonable expenses in making the motion unless the movant did not act in good faith

o If denied Court may enter any protective order authorized by Rule 26(c) and require the moving party, their attorney or the deponent to pay reasonable expenses

o If granted in part & denied in part Court may enter a protective order authorized by Rule 26(c) and may apportion reasonable fees

Rule 37(b)(1) – If a deponent will not answer a question after being directed to do so by the court, he may be held in contempt

Rule 37(b)(2) – If a person designated under Rule 30(b)(6) or Rule 31(a) fails to obey an order for a motion to compel

o Court may make fair and just orders including: Matter regarding which the order was made or any other designated facts

are taken to be established in favor of the party making the motion to compel

An order refusing to allow the naughty party to support or oppose certain claims or defenses, or prohibiting that party from introducing designated matters in evidence

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An order striking all or parts of pleadings, staying proceedings until the order is obeyed, dismissing all or part of the action, or rendering a default judgment against the naughty party

An order treating the failure to obey as contempt of court except the order for mental/physical examination

If the party refuses to produce another for examination under Rule 35(a), sanctions (A), (B), or (C) unless the party shows they were unable to produce the party for examination

o Instead of or in addition to, the court can require the naughty party, their attorney, or both to pay the reasonable expenses unless the failure was justified

Rule 37(c)(1) – Party that fails to disclose information as required by Rules 26(a) or 26(e)(1) or amend is not permitted to use at trial any evidence or any witness not so disclosed + other appropriate sanctions including expenses or sanctions set forth in Rule 37(b)(2)(A)-(C) or inform the jury of the failure

Rule 37(c)(2) – If a party won’t admit the truth as requested in Rule 36, and the other party proves the genuineness or truth, the court will order reasonable expenses unless

o Request was objected to under Rule 36(a)o Admission was of no substantial importanceo Naughty party had reasonable ground to believe that the naughty party would

prevail on the mattero Some other good reason for the failure to admit

Rule 37(d) – If a party, or someone designated under Rule 30(b)(6) or Rule 31(a), fails to Appear to take the deposition after being served with proper notice Serve answers to interrogatories served under Rule 33 Serve a written response to a request for inspection made under Rule 34

o Court can impose sanctions of Rule 37(b)(2)(A)-(C) ORo Require that the party &/or their attorney pay reasonable expenses unless the

court finds that the failure was substantially justified.o The failure to act may not be excused because discovery sought is objectionable

unless naughty party has pending motion for protective order Rule 37(g) – If a party will not participate in a discovery plan under Rule 26(f) in good

faith the court may require that the party &/or his attorney pay the reasonable expenses caused by their naughty behavior

STEPS FOR RULE 37o Parties meet to discuss why/if Δ (for example) has not complied and

when/will/can theyo If still no compliance move to compel discovery

If impossible to comply? E.g. documents/people no longer exist Courts always have inherent power (although not in rules) to create

sanctions for misconduct, i.e. destruction of documentso Court will order them to complyo If still no compliance Move for sanctions OR court can impose on its owno Δ is sanctioned

Cine Forty-Second Street Theatre Corp. v. Allied Artists Pictures Corp. = Antitrust Claim where Δs conspired to stop Π from showing 1st run movies. Δ asks for dimensions of theatre & calculation of damages (today: part of mandatory disclosures). Π answered 4 months late, stalled, etc. Sanction imposed: Π precluded from entering evidence on damages in trial – but could still get injunctive relief. Major sanction.

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Generally, court reluctant to sanction byo Denying evidence on a subjecto Dismisso Grant default judgment

Handout #2 = Tobacco wants government-funded research from Universities (need subpoena since U. not party to suit). Relevant to government’s claim that nicotine is addictive. Tobacco looking to find that the studies show not addictive or dangerous and show state-of-the-art at the time, i.e. government didn’t know it was addictive back then and neither did we.

Within scope of discovery?o Yes, unless privilege to Universitieso Big burden 50 years of documents all over the countryo Maybe should fall under doctor-patient privilege BUT court could order redaction

of patients’ name and then oko Probably not work-product, i.e. government funds research all the timeo Professors/doctors are experts

Final reports are already with the government or published First drafts fall under something like work-product rule Krisa v. Equitable Life Assurance Society = Draft reports of experts who

will testify are discoverable Tobacco can depose doctors if government is going to use the research at

trial or have them testify BUT professors/doctors were NOT retained for purposes of litigation

Tobacco can depose them as random 3d parties University’s arguments

o Rule 45 = undue burden quash subpoenao Bad faith “fishing expedition” and harassment – Rule 26(g) certification

What should University do?o Nothing – Let Tobacco file motion to compel & then argue undue burden,

harassment, etc. Risky if Court finds for Tobacco must turn over AND in contempt

o Comply – There is NO smoking gun BUT policy & cost should fight

o Move for Protective Order – Too burdensome & ask for complete or partial protective order

Preventing some disclosure is better than nothingo Move to quash subpoena under Rule 45(c)(3)(B)(3) – Same arguments against

motion to compel

Hypo = Enron as Δ against shareholders. Document request and Enron complies. Deposition of insiders documents destroyed before litigation

What should Πs do?o Learn what documents said with depositions – good case to overcome work-

product exception & get to depose attorneyo Move for sanctions under Rule 37 since requested documents destroyed – if can

prove Δ knew they would be subject of litigation Even if court compels discovery, impossible to comply since documents

have been destroyed

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o Courts always have inherent power (although not in rules) to create sanctions for misconduct, i.e. destruction of documents

Require Enron to pay cost to prove/find subject of documents Take as admitted anything Π says about documents – no way to

object/disprove Information taken as dispositive default judgment Prosecute Enron executives

Closing thoughts on Discoveryo Lots of overuse/misuse of discovery by both Πs & Δs

Π fishing for settlement Δ trying to outlast Π’s money

o Δ’s use discovery more even though Π’s need it moreo 50% cases in Federal court = NO discoveryo Most cases have > 10 discovery eventso 10%, or less, cases have big discovery usually big, expensive caseso Rules must apply to everything hard to deal with the reality of discovery

II. Ascertaining the Applicable LawNOTE: Complex choice of law rules were not discussed in this class. When there is a question as to which state’s law applies, assume that the court has made the right decision in choosing a state.

A. State Law in Federal Courts1. Rule of Swift v. Tyson

Swift v. Tyson = THE DISPUTE: Maine speculators sold land they did not own to NY-ers including Δ Tyson hoping to use Δ’s check to buy the land. Speculators gave the check to Swift for a pre-existing debt. Swift sought cash from Tyson after the check bounced. Tyson refused to pay since the speculators had defrauded him. NY COMMON LAW 1842: Δ wins since a check paid in fraudulent sale void. GROWING TREND IN FEDERAL LAW: People like Δ are less innocent since he could have easily checked whether the deal was fraudulent. J. Story looks to the Rules of Decision Act, 28 U.S.C. § 1652, in which he interprets the word “law” to mean statutes, but not common law. Therefore, since there was no NY statute on point, J. Story did not have to apply the NY common law. Instead, the federal court was to examine all the common law authorities it could get its hands on to ascertain the proper rule. Therefore, Story adopted the growing rule and found for Π.

Thoughts on Swifto Story was a bold nationalist/federalist and wanted to create a bigger role for

federal government & courts If NY law applied, the check would be dead and no one would be willing

to take signed-over checks anymore Impediment to interstate commerce

o Theory of natural law Federal judges are better equipped to interpret/divine the natural law than

state court judges If they listened carefully enough, they could get at the best rule (Story

thought NY had gotten it wrong)o Fairness & Uniformity

Want same law applied in federal court sitting in NY or Kansas

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Story hoped DCs would follow each other (even though not so bound) and that state courts would follow the DCs

Tried to create HORIZONTAL UNIFORMITY between federal courts in different states advantage if parties were diverse

o Strange outcome Interpretations of statutes are binding precedent Common law decisions are not PLUS judges often use common law to discern legislative intent in

enacting statutes In both cases, judge is filling a gap in the law – really same thing Seamless web

1938 = 2 Major Changeso Federal Rules of Civil Procedureo Erie decision

2. The Erie Doctrine: The Rules of Decision Act 28 U.S.C. § 1652 – Rules of Decision Act = The laws of the several states, except where

the Constitution or treaties of the United States or Acts of Congress otherwise require or provide, shall be regarded as rules of decision in civil actions in the courts of the United States, in cases where they apply.

Black & White Taxicab = KENTUCKY LAW: No contracts for passenger monopolies while FEDERAL COMMON LAW: Contracts are ok. Out-of-state Π, Brown & Yellow, was able to chose a different, more favorable rule of substantive law because it could choose federal court. The Δ was stuck in federal court because there is no “unremoval.” Another kind of discrimination that emerged from this outcome is that a local Π would be forced to sue in Kentucky and lose on its claim. Goal of diversity jurisdiction was to even the playing field for in-state and out-of-state litigants. Swift created discrimination in favor of out-of-state Πs.

*Erie R. Co. v. Tompkins = Tompkins was walking next to the RR tracks (in PA) when a train came by with an open door and severed his arm. Tompkins brought suit in NY federal court. PA LAW: Since Tompkins was a trespasser, he could not recover damages without gross negligence on the part of Erie. MAJORITY RULE: Tompkins was not trespassing and therefore can recover damages by merely showing negligence. 100 years later J. Brandeis overruled Swift for several reasons: (1) Swift failed to achieve its goal of certainty since state judges failed to follow DC judges creating a multiplicity of rules on recurrent issues that were all different state-to-state court and in federal and state court sitting in the same state; (2) The anomalous, discriminatory result of Black & White Taxicab, i.e. forum shopping; (3) Law Review article calling Story’s interpretation of the Rules of Decision Act may have been false based on a previous draft of the Act which had stated that the “laws of the several states” = “unwritten, or common law, and statutes” (this could really go either way) ;and (4) Swift was unconstitutional because it granted federal government (judges) power to “make” law in areas where the federal government had no delegated powers and therefore encroached on power of the states. Also, the natural law theory of Swift had seriously fallen out of favor since more of the law was now statutory law is what legislature says it is. Ultimately, there is NO federal common law. HOLDING: In a diversity action, the Rules of Decision Act says apply the law of the state, which means statutes, statutory interpretation, common law, or anything else the state court may rely on in making its decisions.

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Thoughts on Erieo Says no federal common law, but really some specific federal common law does

still existo Tried to create VERTICAL UNIFORMITY between federal and state courts

sitting in the same state no advantage created when parties were diverseo Destroyed HORIZONTAL UNIFORMITY created by Swift

Erie did not address this problem – different law in federal courts in different states

BUT, choice of law rules usually fix this problem, e.g. Hurt in CA and NY federal court will apply CA law

o Erie Rule: If law is substantive apply state law If law is procedural apply federal law

Substantive Law Procedural Law Definition of right/duty

Specific applicability rules change case-by-case

Governs conduct outside courtroom Expresses important policy

Enforcement (e.g. defend, vindicate) of a right/duty

General applicability to all cases no real flux

Governs conduct inside courtroom Turns on questions/concerns of

convenience

Guaranty Trust Co. v. York = York sued bond trustee for breach of fiduciary duty in equity in federal court. NY LAW: Action barred by statute of limitations. FEDERAL EQUITABLE LAW: Court has discretion to let Πs bring case even if untimely. Erie applies to actions both in equity and law. Court held that the state statute of limitations must be applied in order to implement the “policy” of Erie that the outcome should be the same in federal and state court to prevent forum shopping. In other words, if there is no federal rule on point AND the state rule is “outcome determinative,” then it should be applied.

Thoughts on Yorko Forum shopping decisiono Outcome = outcome of any, one given claim

Ragan v. Merchants Transfer = 10/1/43: Injury, 9/4/45 Complaint filed in Kansas federal court, 10/1/45: SOL ran, 12/28/45: Service. FEDERAL RULE 3: Suit commenced at the time complaint filed. KANSAS RULE: suit starts at date of service, i.e. must serve before SOL runs. Under York, since no real federal rule on point, i.e. Rule 3 did not really govern the tolling of statutes of limitations, and the state rule would bar the claim, i.e. affect the outcome, state rule rules and case is dismissed.

Byrd v. Blue Ridge Rural Electric Cooperative, Inc. = Byrd was injured on the job. FEDERAL LAW: Jury decides if Π is an “employee” and therefore whether he may sue or be obliged to accept workers’ compensation benefits. STATE LAW: Judge makes the determination. Whether the judge or jury decides the issues does affect the outcome because juries are much more sympathetic than a judge with an already full docket. Under York and Byrd, the state rule almost certainly would lead to dismissal of the case (at least from the Art. III court) and therefor is “outcome determinative.” However, the court finds that there is a

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countervailing federal interest in having juries sit as factfinder. Therefore, the federal rule wins despite the York test.

3. The Erie Doctrine: The Rules Enabling Act 28 U.S.C. § 2072(a) Rules Enabling Act – Supreme Court can prescribe general rules of

practice and procedure and rules of evidence for cases in the federal court system. 28 U.S.C. § 2072(b) – Rules canNOT abridge, enlarge or modify any substantive right.

All laws in conflict with such rules are pre-empted by the rules. 28 U.S.C. § 2072(c) – Rules may define when a ruling of a district court is final for the

purposes of appeal. Hanna v. Plumer = Π served process on Δ, executor of woman’s estate with whom Π had car accident. FEDERAL RULE 4(d)(1) (today: 4(c)(2)): leave summons with person of suitable age and discretion. MASS RULE: in-hand service must be made on executor. The Court held that the outcome determinative test of York must be viewed in light of the underlying policies of Erie. In other words, if the difference between the two rules would not lead to forum shopping, i.e. unlikely Π would choose federal court in order to save effort in serving Δ in-hand, or an “inequitable administration of the laws” then there is no reason to apply the state procedural rule. However, Court has power to promulgate FRCP under the Constitution (Congress can create inferior courts and N&P = laws to carry out that power) and Rules Enabling Act if they are “arguably procedural.” FRCP will win if the rule is valid under the Constitution and the REA.

Four types of federal provisions that may conflict with state lawo Federal Constitutional Provision

Constitutional provision ALWAYS WINSo Federal Statute

Federal statute wins if it is constitutional Hanna holds that if law is “arguably procedural” constitutional

o Federal Rule of Civil Procedure FRCP wins under Hanna if it is both constitutional, i.e. “arguably

procedural” and valid under the REA, i.e. “does not “abridge, enlarge, or modify” a substantive right.

o Federal Judicial Practices Under Erie, federal judicial practices are invalid if they purport to

establish rules of substantive rights (no constitutional authority for federal courts to ”make” this law)

Under Hanna, if the practice relates to the conduct of the litigation, state rule applies if the difference between it and the federal practice will lead to forum shopping or inequitable administration of the laws modified “outcome determinative” test

Walker v. Armco Steel Corp. = Π injured when using a nail. Filed complaint within SOL, but served Δ too late. STATE LAW: Action commenced when Δ is served. FEDERAL RULE 3 does not say anything about tolling the state SOL – not really on point. Court determines that Rule 3 is not “sufficiently broad,” to cover when an action is commenced for SOL, i.e. the subject matter of the state law. Since the state and federal laws can exist “side-by-side,” each is controlling in its own intended sphere without conflict. Therefore, the state law controls the tolling of the SOL.

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Burlington Northern R. Co. v. Woods = STATE LAW: If Δ loses on appeal, damages are increased by 10%. FEDERAL RULE OF APPELLATE PROCEDURE: No extra damages unless the appeal was truly frivolous. Under Walker, FRAP is in conflict with state law, i.e. cannot exist “side-by-side” and “sufficiently broad” to control the same subject matter. Under Hanna, FRAP (since agreed to by S.Ct. AND Congress) is both constitutional and valid under REA. Therefore, federal rule applies.

Stewart Organization, Inc. v. Ricoh Corp. = Π filed suit in DC of Alabama and Δ moved to transfer the case to NY pursuant to the forum-selection clause in the contract. FEDERAL LAW 28 U.S.C. § 1404(a): District Courts may transfer cases to another DC. STATE LAW: No enforcement of forum-selection clauses. Federal statute on point here. New analysis... Under Walker, the statute is “sufficiently broad” to cover the same subject matter and the two are in conflict (AL law = never enforce, § 1404 = courts can decide whether or not to enforce these clauses). Under Stewart (new rule) only need to ask if statute is constitutional (statutes are not promulgated pursuant to REA) here Court finds yes because it is “arguably procedural.” Federal law wins.

Van Dusen v. Barrack = Court transferred venue under § 1404 from Pennsylvania to Massachusetts. Court applied the spirit of Erie in holding that the law applied by the federal court that decides the case should be the same as that applied in the court of the state in which the action was filed. Prevents forum shopping by adding forum-selection clause to contract. Otherwise, § 1404 will appear to be substantive (Δ may win under MA law, but lose under PA law) and would fail the constitutionality test of Stewart.

Handout #3 = Practice Erie doctrine question.

BIG FAT ERIE FLOW CHART Also see picture chart Is there a codified Federal rule on point? Same question as Walker: Is the rule

“sufficiently broad” to cover the same matter as the state rule? Is there “direct conflict or collision” between the two rules?

o IF YES Is the codified federal rule a FRCP? IF YES, i.e. federal rule = FRCP Hanna: 2 part test

Is the FRCP consistent with the REA (does not “abridge, enlarge or modify any substantive right” – Burlington Northern: does not define, but only enforces rights,) & Constitutional (“arguably procedural”)?

o IF YES to both Apply federal ruleo IF NO to any Apply state rule

Federal rules are hardly ever invalidated – already survived scrutiny with S.Ct. AND Congress

IF NO, i.e. federal rule = statute Stewart: Is the statute constitutional (“arguably procedural?)

IF YES Apply federal rule IF NO Apply state rule

o IF NO Threshold Erie Question: Is state rule substantive? IF SUBSTANTIVE Apply state rule – End of Inquiry IF NOT SUBSTANTIVE (arguably procedural) York & Hanna: Is the

state rule “outcome determinative &/or will the difference in the rules lead to forum shopping or inequitable administration of the laws?

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IF YES Byrd: Is there a countervailing federal interest (e.g. jury?)?

o IF NO Apply state ruleo IF YES Apply federal rule

IF NO Apply federal ruleNOTES: If there is a codified federal rule, most likely that federal law will apply

B. Ascertaining State Law1. Determining Which State’s Law Governs

Complex state choice of law rules In Erie, Court used PA law because of NY choice-of-law statutes

Klaxon Co. v. Stentor Electric Mfg. Co. = Federal court must use the choice-of-law rules of the state in which it sits. Could create lack of uniformity between federal courts, but ok since Erie only wanted to ensure vertical uniformity.

2. Ascertaining the State Law If Erie doctrine says apply state law how do federal judges determine what the state

law is? Federal court must do whatever the highest state court would do If highest state court has not spoken, trial and appellate court decisions may guide the

inquiry, but are not binding on federal court Later, highest state court is not bound by a past interpretation of their law by a federal

court in an Erie situation Process of Certification

o Federal court may ask the highest state court to review the facts of the case and issue a decision on how they would rule if the case were before them

o State court not obligated to comply If no certification available federal court may look to state statutes on point or related

statutes, state case law, state interpretation of related/similar statutes, legislative history, trend in the state law, etc. – really anything to help them discern what the state court would do

In theory, federal court may NOT use biases or politics of the judges on the highest state court bench in determining what law they would apply

McKenna v. Ortho Pharmaceutical Corp. (Handout #4) = OHIO LAW: Π must bring a case within two years of when the claim “arose.” Π wants to show that the claim did not “arise” until she knew that the drug caused her symptoms. Δ is urging that claim “arose” when she was first exposed, i.e. started taking drug, and therefore, SOL has run. Here, PA law (where suit brought) says apply OH law. Ohio Supreme Court held no “discovery rule” (claim arises when Π discovered, or should have discovered, that the drug caused the injury) because they believed there was legislative intent to the contrary but later finds “discovery rule” ok in forceps and sponge left in abdomen because of “foreign object” exception. State legislature later said “discovery rule” ok when injury is exposure to asbestos. Trend discovery rule, so what would Ohio Supreme Court do with the instant facts? Federal court has to weigh precedent, statute, and trend to decide the law of Ohio.

Commissioner v. Bosch’s Estate = If state supreme court has not spoken on issue (& no clear statute), decisions of lower state courts (including trial and appellate) although entitled to some weight, do not control a federal diversity court’s reading of state law.

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Mason v. American Emery Wheel Works = DC applied law of the state where the tort occurred and held that the state law required privity of contract to collect on tort claims. First Circuit held that the Mississippi law was really old and if the issue were presented to the highest state court, they would have adopted a modern rule that does not require privity. Seems a bit like Swift v. Tyson – federal court is finding the more enlightened rule and merely assuming that the state court would follow it.

III. Adjudication Without a Completed TrialA. Attacks Based on the Pleadings

1. Time Permitted for a Response Rule 12(a)(1) – Δ shall serve an answer:

o Within 20 days after being served with summons & complaint ORo If service has been timely waived under Rule 4(d), within 60 days after the date

when the request for waiver was sent, OR within 90 days after that date if the Δ was addressed outside any judicial district of the U.S.

Rule 12(a)(2) – A party served with pleading stating a cross-claim against that party has 20 days after being served to answer. Π shall serve a reply to a counterclaim in the answer within 20 days after service of the answer OR if a reply is ordered by the court, within 20 days after service of the order, unless the order specifies otherwise

Rule 12(a)(3)(A) – U.S., agency, or office, employee of the U.S. sued in an official capacity shall serve an answer to the complaint or cross-claim, or reply to a counterclaim, within 60 days after U.S. attorney is served with the pleading

Rule 12(a)(3)(B) – Officer, employee of U.S. sued in an individual capacity for acts/omissions occurring in connection with his official duties shall serve an answer to the complaint, cross-claim or reply to counterclaim, within 60 days after service on the officer or employee, or serve on the U.S. attorney, whichever is later

Rule 12(4) – Unless different time fixed by court, service of a motion permitted under Rule 12 alters the periods of time as follows

o Court denies motion or postpones it until trial, responsive pleading shall be served within 10 days after notice of the court’s action

o Court grants a motion for more definite statement, responsive pleading shall be served within 10 days after the service of the more definite statement

2. Motions to Dismiss Rule 12(b) – Every defense, in law or fact, to a claim, counterclaim, cross-claim, or

third-party claim, shall be asserted in the responsive pleading thereto, if one is required... except following defenses may be made by motion

Rule 12(b)(1) – Lack of subject-matter jurisdiction Rule 12(b)(2) – Lack of personal jurisdiction Rule 12(b)(3) – Improper venue Rule 12(b)(4) – Insufficiency of process Rule 12(b)(5) – Insufficiency of service of process Rule 12(b)(6) – Failure to state a claim upon which relief can be granted

o Notes on 12(b)(6) Rule 8 only requires a skeleton of a complaint hard for 12(b)(6) to

succeed Court must take all pleaded facts as true Conley v. Gibson = 12(b)(6) should not be granted “unless it appears

beyond doubt that the Π can prove no set of facts in support of his claim which would entitle him to relief”

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12(b)(6) converted into motion for summary judgment IF court looks to evidence outside of the pleadings, e.g. affidavits

Rule 12(b)(7) – Failure to join a party under Rule 19 Back to Rule 12(b)

o Motion making any of these defenses shall be made before pleading, if any further pleading is permitted

o No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion

o If no responsive pleading is required, the adverse party may assert at trial any defense in law or fact to that claim for relief

o If, on a 12(b)(6) motion, Δ attaches evidence outside pleadings, and court does not exclude it, motion treated as one for summary judgment and Rule 56 governs and all parties are given opportunity to proceed with discovery before summary judgment motion is heard

Rule 12(h)(1) – If party fails to raise personal jurisdiction, improper venue, insufficiency of process, or insufficiency of service of process, the defense is waived

Rule 12(h)(2) – Defense of failure to state a claim, defense of failure to join a party under Rule 19, and objection of failure to state a legal defense to a claim may be made in any pleading, by motion for judgment on the pleadings or at the trial

Rule 12(h)(3) – Whenever it appears by motion or otherwise that the court lacks subject matter jurisdiction, the court shall dismiss the action

Motions to dismiss are good for Δ:o Easyo Buys timeo Π has burden of preparing responseo Gets Δ more information about Π’s case

American Nurses’ Association v. Illinois = Suit over sex discrimination. As long as a pleading has some claim that is actionable, it should not be dismissed under Rule 12(b)(6).

3. Other Motions Attacking Pleadings Rule 12(e) – If a pleading is so vague that a party cannot respond, the party may move

for a more definite statement Rule 12(f) – Before responding to a pleading, or if no responsive pleading required, a

party may move to strike within 20 days after the service of the pleading, or upon the court’s own initiative at any time, and the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.

Rule 12(g) – All of the defenses may be combined into a single motion.B. Resolution by the Judge Based on Evidence Revealed in Discovery

1. Judgment on the Pleadings Rule 12(c) – Any party may move for judgment on the pleadings after pleadings are

closed, but within such time so trial is not delayed. If on a motion for judgment on the pleadings, Δ attaches evidence outside pleadings, and court does not exclude it, motion treated as one for summary judgment and Rule 56 governs and all parties are given opportunity to proceed with discovery before summary judgment motion is heard

2. Summary Judgment Rule 56(a) – Any party in position of a Π, may move with or without supporting

affidavits, for a summary judgment in the party’s favor at any time after 20 days from commencement of the suit OR after service of a motion for summary judgment by the adverse party

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Rule 56(b) – A party in the position of a Δ may, at any time, move with or without supporting affidavits for a summary judgment in the party’s favor

Rule 56(c) – o Motion shall be served at least 10 days before hearing. Opposing affidavits may

be served before hearing. o Motion granted if all evidence presented show that THERE IS NO GENUINE

ISSUE AS TO ANY MATERIAL FACT and that the moving party is entitled to judgment as a matter of law

Really standard = Motion granted if NO REASONABLE JURY COULD FIND FOR THE NON-MOVING PARTY

o Summary judgment may be rendered on the issue of liability alone even if there is genuine issue as to amount of damages.

Rule 56(d) – If summary judgment leaves some issues for trial, court shall have a hearing to determine what material facts exist without substantial controversy and what material facts are actually and in good faith controverted.

Rule 56(e) – o Supporting and opposing affidavits shall be made on personal knowledge, shall

set forth such facts as would be admissible in evidence, and shall show affirmatively that affiant is competent to testify to matters stated therein.

o Certified copies of all papers referred to in affidavit should be attached. o Court may permit affidavits to be supplemented or opposed by depositions,

interrogatory answers, or more affidavitso Opposing party may not rest upon the mere allegations or denials in its pleading,

but must by affidavits or as otherwise provided here, set forth specific facts showing that there is a genuine issue for trial if adverse party does not so respond, summary judgment shall be entered against adverse party

Rule 56(f) – If opposing party cannot, for reasons stated, present affidavit facts essential to justify the opposition, court may refuse summary judgment motion or order a continuance until opposing party can get affidavits, take depositions, for full discovery, or any other order as is just

Rule 56(g) – If court finds that affidavits were presented in bad faith or solely for the purpose of delay, court shall order naughty party to pay reasonable expenses which the filing of the affidavits caused the other party to incur, including attorney’s fees, plus naughty party may be in contempt

Two prong test for summary judgmento Genuine Dispute = real and not fabricated issue on which the jury could go either

wayo Material Issue = an issue that actually effects the outcome of the case; a fact that

could be dispositive Evidence usable to satisfy burdens

o Affidavitso Depositiono Interrogatory

Courts should not and do not weigh evidence at summary judgment stage, but the source of the information and that source’s credibility are important

Lundeen v. Cordner = Did ex-husband intend to change the beneficiary to his life insurance from his kids to his new wife? Northwestern, trustee of estate, interpleaded wife#2 and wife#1 for kids. Wife#2 had burden to prove he intended the change. She entered evidence of forms completed, signed, affidavit of insurance rep etc. and met the burden. Burden

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shifted to wife#1 who only gave her own affidavit that her ex-husband loved his kids and would not cut them out as proof of her own claim and probably did not meet her burden, i.e. not enough to show genuine issue of material fact. Therefore, summary judgment granted for wife#2. Wife#1 also argued a right to go to trial to cross-examine the rep (who was out of U.S. and could not be deposed). Court finds that it probably won’t be able to subpoena rep and refused to have a whole trial so that wife#1 can cross-examine one uninterested 3d party witness who will probably just give the same testimony he already gave in wife#2’s affidavit. Issue was objective inquiry... did he sign the papers?

Cross v. U.S. = Π sued IRS claiming entitlement to a tax deduction for a summer spent in Europe as continuing education. Π moved for summary judgment on the basis of Π’s own self-serving deposition. Π has burden of showing he should get deduction (exception to general tax laws). Appellate court found that clearly the fact that the dog & wife were on the trip show that not all of the cost was deductible (not to mention Π brought this evidence in himself). Because Π had burden and his only evidence (which was much less than wife#2’s in Lundeen) was a self-serving statement, burden never shifted to the government, so ok that they didn’t enter any evidence to rebut summary judgment motion. Therefore, there was a material issue of fact and government got a chance to cross-examine him at trial. Issue was much more subjective... why did you go to Europe?

Adickes v. S.H. Kress & Co. = Adickes was a white teacher refused service and arrested (for vagrancy) after bringing black students with her to eat at a restaurant. § 1983 = can sue government official who violates your constitutional rights, not private party. Π sued restaurant anyway alleging conspiracy with police who were present at time she was refused service (no service loitering vagrancy). Δ moves for summary judgment and presents evidence that there was no conspiracy, but is silent on issue of whether cop was present. Since Δ’s burden of production was not satisfied on this issue, it never shifted to Π. Therefore, Π’s response of basically pointing to her allegations in the complaint, i.e. circumstantial evidence of cop in restaurant, unsworn waiters’ statement, her deposition that a student noticed cop was there. Since burden never shifted, inadmissibility of unsworn statement and deposition do not matter. Since there is an open question of fact, summary judgment is denied and case goes to trial.

Thoughts on Adickes o Summary judgment & other motions change burdens of proof dynamico Outcome more like Cross – no responding evidence entered by non-moving party,

but still get to juryo More like Lundeen, since the evidence appears to be stacked against non-moving

partyo More like Cross because issue is one of motivation/intent, and not actions actually

taken by someoneo Lack of bias of insurance rep in Lundeen = no bias of waiter in Adickeso BUT both affiants/deponents Δ & cop in Adickes are making self-serving

statements like Π in Crosso FACTS shown to be in issue (or not in issue) must affect the outcome of a case –

can’t be side fact

Celotex Corp. v. Catrett =Π sued 15 makers of asbestos for the death of her husband. Π has burden of production AND persuasion at trial, i.e. show that Δ made the asbestos and that that asbestos killed husband. Δ moved for summary judgment and presented no evidence

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except that Π had not met her burden of persuasion, i.e. Π has not proven that it was us. Π responded with evidence showing exposure to “firebar” which could have been made by Δ. Court grants summary judgment for Δ because they showed that Π could not possibly meet her burden of persuasion (and therefore can’t win) at trial since there is no evidence in record tending to show that it was Δ who made the asbestos that killed husband. This satisfies Δ’s burden of production (Δ produces fact that Π has not produced anything).

Roadmap of summary judgment based on burdens:o Assume Π has burden of persuasion at trialo Π moves for summary judgment

Π must satisfy burden of production (for the motion) by introducing evidence showing that the facts must Π wins, i.e. no material issue of fact (see wife#2 in Lundeen)

If Π satisfies the burden of production, it shifts to Δ Δ must satisfy his burden of production by introducing evidence

showing there is a material issue of fact If factual issue exists, i.e. Δ meets his burden of production

summary judgment denied If no factual issue exists, i.e. Δ fails to meet his burden of

production summary judgment granted If Π does not satisfy his burden of production summary judgment

denied without Δ having to do anything since burden never shiftedo Δ moves for summary judgment

Δ must satisfy burden of production (for the motion) by 1 of 2 ways1. Introducing evidence showing that the facts must Δ wins, i.e. no material issue of fact (see Kress)2. Point-out that Π has not entered any evidence showing that Π must win, i.e. no material issue of fact (see Celotex)

If Δ satisfies the burden of production by way 1 or 2 above, it shifts to Π Π must satisfy his burden of production by introducing evidence

showing there is a material issue of fact If factual issue exists, i.e. Π meets his burden of production

summary judgment denied If no factual issue exists, i.e. Π fails to meet his burden of

production summary judgment granted If Δ does not satisfy his burden of production summary judgment

denied without Π having to do anything since burden never shifted

Anderson v. Liberty Lobby, Inc. = Libel case and therefore “clear & convincing” standard of proof. Did court have to consider the evidentiary standard the jury would use in determining whether to grant summary judgment? Since reasonable jury could only find for Π if they had proven their case by clear and convincing evidence, Judge must take standard of proof into account when determining whether to grant summary judgment. In reality, Judges are not supposed to weigh evidence, but they must to decide how a reasonable jury would find.

Standards of Proofo Preponderance of the Evidence most civil cases

Anything over 50% and that side wins If evidence perfectly split, party with burden of persuasion loses

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o Clear & Convincing Evidence heightened standard Somewhere in between more than 50% and less than criminal standard

o Reasonable Doubt criminal standard Government must show beyond reasonable doubt, i.e. approaching 100%,

that Δ is guilty

C. Taking the Case from the Jury Summary of Ways to Take Case From Jury

o Rule 12(b)(6) = No real claim/caseo Rule 12(c) = Judgment on pleadings – never gets to trial or juryo Rule 56 = Summary Judgment – no genuine issue as to a material fact, i.e. no

reasonable jury could find for the non-moving partyo Rule 50 = Directed Verdict – Judgment as a matter of law, i.e. no reasonable jury

could find for the non-moving partyo Rule 50 = J.N.O.V. – Renewed judgment as a matter of law, i.e. no reasonable

jury could find for the non-moving party (even though a jury already has)o Rule 59 = New Trial

1. Constitutional Issues 7th Amendment = “... the right of trial by jury shall be preserved, and no fact tried by a

jury, shall be otherwise re-examined in any court of the U.S., than according to the rules of the common law.”

“Preserved” interpreted to mean as it was in 1791 1791 = Tools to take the case from the jury did exist, e.g. demurrer, new trial to undo jury

verdict Originally, S.Ct. said j.n.o.v. is not constitutional under the 7th Amendment since no

court of law can reexamine jury verdict – Slocum v. NY Life Insurance Co. LATER S.Ct. said a court may reserve its ruling on directed verdict motion (without

considering jury decision) until verdict was returned legal fiction to permit j.n.o.v. – Baltimore & Carolina Line, Inc. v. Redman

More on jury right below...

Galloway v. U.S. = Π had government health insurance which entitled him to benefits if total & permanent disability developed. Expired 1919 and Π needed to show disabled/insane before 1919 and completely disabled for 15 years. Π entered evidence with lots of witnesses, predisposition to schizophrenia, war created it, etc. but 8 year gap. Only one doctor says he’s insane now and probably was since 1918. Directed verdict granted for government. (BUT, reasonable jury could have made the inference that those missing years help prove his insanity then and since it’s still there now permanent.) Directed verdict does not violate 7th Amendment jury right.

2. Standards for Motions for Judgments as a Matter of Law – Judgment as a Matter of Law (Directed Verdict) and Renewed Motion for Judgment as a Matter of Law (J.N.O.V.)

Rule 50(a) Judgment as a Matter of Law (Directed Verdict) o If during trial, a party has been fully heard on an issue and NO REASONABLE

JURY COULD FIND FOR THAT PARTY ON THAT ISSUE, court may determine the issue against that party and grant motion for judgment as a matter of law

Remember: Court cannot grant directed verdict or j.n.o.v. against a party who has not yet presented evidence on that particular issue

o Motions can be made at any time before submission to jury

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Notes on Directed Verdicto Assume jury finds all facts, questions of credibility, and inferences in favor of

non-moving partyo Moving party says assuming all facts against me other side still can’t win

Rule 50(b) Renewed Motion for Judgment as a Matter of Law (J.N.O.V.)o If court does not grant directed verdict at the close of all the evidence, court is

considered to have tabled the motion until after jury returns verdict o The movant may renew its request for Judgment as a Matter of Law by filing a

motion no later than 10 days after entry of judgment and may alternatively request a new trial or join a motion for a new trial under Rule 59

o In ruling on renewed motion, court may If verdict was returned

Allow judgment to stand Order new trial OR Direct entry of judgment as a matter of law

If no verdict was returned (the court room was adjourned... and when Lennon read a book on Marx a quartet practiced in the park)

Order a new trial OR Direct entry of judgment as a matter of law

Rule 50(c) – If renewed motion granted, court must also rule on motion for new trial by determining if it should be granted in the case the judgment is later vacated or reversed

Why? Better for trial judge to decide on new trial while evidence is fresh in her mind than to wait until after appeal to decide

o If motion conditionally granted, i.e. new trial if judgment later vacated/reversed, order does not affect the finality of the judgment

o If motion conditionally granted, judgment reversed on appeal, new trial will proceed unless appellate court otherwise orders

o IF motion conditionally denied, appellee on appeal may assert error in the denial and if the judgment reversed on appeal, subsequent proceeding, then if judgment on merits is vacated/reversed, new trial will proceed

o Any motion for New Trial under Rule 59 shall be filed within 10 days after entry of judgment

Rule 50(d) – If motion for judgment as a matter of law is denied, party who prevailed on that motion, may ask for a new trial in the event the appellate court concludes that the trial court erred in denying the motion – If appellate court reverses judgment, nothing precludes it from granting a new trial OR directing trial court to determine whether new trial will be granted

Cannot move for renewed judgment as a matter of law (after jury renders verdict) if party has not moved for judgment as a matter of law (before jury deliberates) – otherwise, not renewed

Kircher v. Atchison, Topeka & Santa Fe Ry. Co. (Handout #5) = Π claimed his hand was severed on depot-side of the platform, but blood, etc. found on the other side. Plus, improbable that Π fell under train while it was already on the tracks and was 13 feet away from the hole Π allegedly tripped on. Δ’s theory is that Π was drunk and hanging out in the park, hears the train, trips (scuffmarks on other side show this), falls, hits head, and train severs his hand. Jury found for Π. Not so unreasonable that a jury could find for Π (especially since one did). DC denied Δ’s motion for j.n.o.v. Should DC have considered the cabbie in deciding on the j.n.ov. motion? NO – unfair and improper for a court to have evidence before it in deciding whether to grant renewed judgment as a matter of law that the jury did not have.

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Denman v. Spain = Car accident where one car jumped median. No eyewitnesses or any other proof as to which car jumped. Nobody saw Π’s car before accident. Π’s evidence: two eyewitnesses said Δ’s car was traveling too fast, rainy & foggy night, plus some skid mark photos. Jury found for Π. Π had burden to prove both negligence and causation. Court was not willing to draw the inference that speeding in the rain caused Δ’s car to lose control & jump median. Court granted Δ’s j.n.o.v. motion since Π did not meet burden of production for, i.e. there was a gap in her evidence, and therefore burden never shifted to Δ requiring him to rebut.

Rogers v. Misouri Pacific R. Co. = Standard applied was specific to federal statute at issue.

Daniel J. Hartwig Associates, Inc. v. Kanner = Π Hartwig was an expert for Δ-attorney and sued for his fee. Π entered evidence of promissory notes Δ previously signed to admit that he did not yet pay. Δ’s only defense is that the contract was void for fraud, i.e. education listed on resume was misleading and apparent conflict of interest in other case. Because fraud is an affirmative defense, Δ has burden of persuasion on that issue at trial (higher standard of clear & convincing evidence). Δ showed some evidence and met burden of production for motion, burden shifted to Π. Π rebutted by saying that he told Δ of his actual education and there was no real conflict of interest. Π’s response is not good enough for directed verdict (questions of fact remain), but since Δ had a gap in his affirmative defense, i.e. did not prove that he relied on the misrepresentations and that he was actually harmed, directed verdict granted for Π anyway.

Thoughts on Hartwigo Party with burden of persuasion at trial (usually Πs – but Δs if affirmative

defense) must satisfy all elements of the claim to win at trial OR on motion for judgment as a matter of law

3. New Trial Because the Verdict is Against the Weight of the Evidence Rule 59(a) – New trial may be granted to all/any party on all/part of the issues when...

o There was a jury trial, for any of the reasons for which new trials have heretofore been granted in actions at law in the courts

o There was no jury, for any reasons for which rehearings have heretofore been granted in suits in equity in the courts

If no jury, motion for new trial court may open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new findings and conclusions and direct entry of new judgment

Rule 59(b) – Motion for new trial shall be filed no later than 10 days after entry of judgment

Rule 59(c) – If motion for new trial is based on affidavits, they shall be filed with motiono Opposing party has 10 days after service to fie opposing affidavits, can be

extended up to 20 days by court for good cause or written stipulationo Court may permit reply affidavits

Rule 59(d) – Initiative of Courto No later than 10 days after entry of judgment, court, on its own, may order a new

trial for any reason that would justify granting a motion for new trial by a party. o Court gives parties notice and opportunity to be heard grant timely motion for

a new trial for a reason not stated in the motiono When granting on own initiative or for reason not stated, court shall specify

grounds in order

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Rule 59(e) – Motion to alter or amend a judgment shall be filed no later than 10 days after entry of judgment

J.N.O.V. vs. New Trialo Lesser showing required for court to grant motion for new trial

New Trial Will Be Granted When...o Necessary to prevent miscarriage of justice

Jury verdict clearly against weight of evidence Jury verdict based on false evidence

o New evidence that could not have been found before If party just lazy sandbagging, i.e. saving really good evidence for after

trial to induce other side to settle Evidence must be highly relevant

New trial granted, but what if next jury finds the same way?o Better to grant j.n.o.v. (& let it go) than grant new trial again to keep trying jury

after jury

Kircher v. Atchison, Topeka & Santa Fe Ry. Co. (Handout #5) Take 2 = Δ later learned that a cab driver had seen Π in the park as the train pulled into the station. Δ moved for j.n.o.v. OR new trial and attached affidavit from the cabbie. DC denied the renewed motion for judgment as a matter of law and new trial. Should DC have considered the cabbie in deciding on the new trial motion? YES – if Δ could not have found the evidence before, since it is highly relevant, the interest in getting it right may trump the interest in getting it over with (finality). Especially since the combination of Π’s implausible story and the cabbie jury verdict against clear weight of the evidence. At minimum, new jury gets to decide between Π’s story and cabbie’s story.

Aetna Casualty & Surety Co. v. Yeatts = Jury found for Δ that he was not engaged in criminal conduct at the time he incurred the liability and therefore should be indemnified by insurance company. If necessary to prevent the miscarriage of justice, additional evidence should be considered in motion for new trial. Especially if the jury verdict turned out to be based on false evidence or was against the clear weight of the evidence.

D. Voluntary Dismissal & Default1. Voluntary Dismissal & Dismissal for Failure to Prosecute

At Common Law – Π could dismiss case without prejudice (bring it again later) any time before a ruling was made

o Big waste of time & resourceso Unfair to Δ who will have to litigate all over again

Rule 41(a) – Voluntary Dismissal o By Π OR Stipulation: An action may be dismissed by the Π without order of court

By filing a notice of dismissal at any time before service by the adverse party of an answer OR of a motion for summary judgment, whichever comes first

SJ can come before answer if Rule 12(b)(6) motion gets converted into summary judgment motion

By fling a stipulation of dismissal signed by all parties who have appeared in the action

Unless otherwise stated, dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when

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New Trial

JNOV

filed by a Π who has once dismissed in any court (state or federal) an action based on or including the same claim

o By Order of Court Other than requirements above, action shall not be dismissed without court

order, upon such terms and conditions as court deems proper Court can condition dismissal on statute of limitations being tolled

(stop it if good reason) or continue running (to prevent forum shopping or Π getting extra time than law allows)

If counterclaim has been pleaded by a Δ prior to serve upon the Δ of the Π’s motion to dismiss, action shall not be dismissed unless the counterclaim can remain pending for independent adjudication

Unless otherwise specified in court order, dismissal is without prejudice Rule 41(b) – Involuntary Dismissal

o For failure of Π to prosecute or comply with these rules or any order of court, Δ may move for dismissal of an action or of any one claim against Δ

o Unless the court in its order for dismissal specifies otherwise, Rule 41(b) dismissal and any dismissal not provided for in this rule, other than dismissal for lack of jurisdiction, improper venue, failure to join a party under Rule 19, operates as an adjudication upon the merits

Rule 41(c) – Provisions of this rule apply to dismissal of any counterclaim, cross-claim, or third-party claim. Voluntary dismissal by claimant alone shall be made before a responsive pleading is served, or if there is none, before introduction of evidence at trial or hearing.

Rule 41(d) – If Π who has once dismissed an action in any court commences an action based upon or including same claim against same Δ, court may make such order for payment of costs of the action previously dismissed, as it may deem proper, and may stay the proceedings in the action until Π has complied

McCants v. Ford Motor Co. = After discovery took place for a year, Δ moved for summary judgment based on state one-year general statute of limitations. Π moved for voluntary dismissal without prejudice with hopes to re-file in a jurisdiction with a better statute of limitations. Court granted motion to dismiss and simultaneously denied motion for summary judgment. Perhaps to lighten Δ’s burden, second court should order Π to pay for costs in bringing summary judgment motion in first action. Probably can’t get costs for discovery since it will be applicable in the second suit.

Cine Forty-Second Street Theatre Corp. v. Allied Artists Pictures Corp. = Π basically stopped litigating by ignoring the rules and court orders. Therefore, court was justified in granting Δ’s motion for involuntary dismissal under Rule 41(b).

2. Default Judgment Rule 55(a) – When party against whom a judgment for affirmative relief is sought has

failed to plead or otherwise defend, clerk shall enter party’s default Rule 55(b) – Judgment by default may be entered as follows

o By Clerk: When Π’s claim is for a sum certain or can be certain after computation, clerk upon request of Π and upon affidavit of the amount due shall enter judgment for that amount and costs against Δ, if Δ has been defaulted for failure to appear and is not an infant or incompetent person

o By Court: In all other cases, party entitled to default judgment must apply to the court, but no judgment by default shall be entered against an infant or

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incompetent person unless represented in the action by a representative who has appeared therein.

If party against whom default judgment is sought has appeared in the action, the party or representative, shall be served with written notice of the application for judgment at least 3 days prior to the hearing on such application

If necessary to take into account or to determine amount of damages or establish the truth of any averment by evidence or to make an investigation of any other matter, court may conduct such hearings and shall accord a right of trial by jury to the parties whenever required by statute

Rule 55(c) – For good cause shown, court may set aside entry of default, or in accordance with Rule 60(b)

Rule 55(d)—This rule applies whether party entitled to default judgment is a Π, third-party Π, party who has pleaded a cross-claim or counterclaim

o Judgment by default is always subject to limitations of Rule 54(c) Rule 55(e) – No default judgment shall be entered against U.S. or an officer or agency

thereof unless the claimant establishes a claim or right to relief by evidence satisfactory to the court

Rule 54(c) – Party winning default judgment may only get damages in the amount prayed for in the complaint

Notes on Default Judgmentso Default Judgments are NOT ON MERITSo If “Sum certain” = liquidated damages, promissory note, etc. o “Failed to plead or otherwise defend” = Δ has not filed an answer or motion to

dismiss If Δ enters answer and THEN disappears Π wins, but NOT default

judgment, adjudication on the meritso If default judgment, Δ gets notice of hearing (to determine anything outstanding,

usually damages) if he has “appeared in the action” “Appeared in the action” = Δ has done anything to show a remote interest

in the suit Δ can “fail to plead or otherwise defend” but still have “appeared in

action” by Making special appearance to question the jurisdiction of the court

only Negotiating a settlement Filing notice of appearance (I, attorney, represent Δ)

Challenging Default Judgmentso Appeal final default judgment entered by court

Δ had no notice of the action OR Π’s allegations could not withstand a Rule 12(b)(6) motion Can only use allegations as evidence

o Collateral Attack In second suit for enforcement of default judgment Defend enforcement on grounds that judgment was invalid Can bring in any evidence you want

IV. TrialA. Introduction

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1. Burden of Proofa. Burden of Production = Obligation to come forward with evidence to support a claim/contention

o Burden of production shifts back and fortho Party filing summary judgment motion has burden of producing evidence to show

no material issue of fact exists – fact MUST relate to the claimo If party introduces enough evidence, burden of production shifts to other side

who must rebut and show that there IS a material issue of factb. Burden of Persuasion = Task for the party who wants to win on a claim

o Party with burden of persuasion usually has burden of production, tooo Party filing summary judgment has burden of persuasion to show they should win

the entire casec. Standards for Meeting Burden of Persuasiond. Shifting Burdens

2. Tactical Considerations Regarding Opening Statement3. Presentation of Evidence

a. Problem of Admissibilityb. Technique of Presentationc. Role of the Trial Judge in the Presentation of Evidenced. Power of Jurors to Question Witnesses

4. Closing Argumenta. Nature of the Argumentb. Proper Versus Improper Argument

5. Province of Judge & Jury Clear role for each

JUDGE JURY HISTORY – Sometimes Judge is

factfinder LAW – Interpreting law and language

(like contract disputes) requires special training (line blurry between law/fact, but Judge makes the decision)

UNIFORMITY – Generic cases where it is important to create precedent

EXPERT – Complex litigation just too hard to explain to jury

EQUITABLE RELIEF SOUGHT

HISTORY – Sometimes Jury is factfinder – jury right “preserved”

FACTS – No special training required + 12 better to decide which side to believe (line blurry between law/fact, but Judge makes the decision)

COMMUNAL/POPULAR – Where sense of community is desirable, i.e. what is “reasonable” or “due care”

PARTICULARIZED – Unique cases that are unlikely to have precedential value

LEGAL RELIEF SOUGHT

Difficult task of drawing line between law/fact really just a question of who is better equipped to decide the issue

Easy at extremes, more difficult in middle when issue requires application of law to facts usually JURIES APPLY LAW TO FACT

Handout #7 = (A) Π slips on ice in front of Δ’s store. Δ claims that the walk was not icy and/or a reasonable storeowner would not have yet cleared the walk. FOR JURY: Did Π really slip – fact, particularized; Was there ice – fact, particularized. HARD TO SAY: Is Π really injured

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– facts, particularized, MIGHT want expertise when reviewing scientific facts – could go either way; Is Δ negligent – facts, particularized, based on reasonableness communal, BUT really application of law to fact and want uniformity in determining what constitutes negligence – because of “reasonable” probably jury, but again could go either way. (B) Π clears Δ’s land, pays $50/acre, and is allowed to either keep or sell the timber. At time of the deal, m.v. for timber is $100/acre. Δ claims that the oral agreement exists, but SOF prevents it from being enforceable. Question is does SOF apply? Really, how much are the trees worth? was the contract for goods/services? how long would it take to clear so many acres? etc... Scientific testimony as to value of trees + testimony as to circumstances of oral contract, i.e. intentions, goods/services, etc. questions of fact for jury. Want uniformity as to when SOF applies, more applying law to fact maybe for judge. Seems to overall fall on jury side.

Markman v. Westview Instruments, Inc. = Example of following our analysis – law/fact distinction does not get the job done. Therefore, look to expertise, uniformity, particular, etc. Court holds there is sufficient reason to treat construction of terms of art like many other responsibilities that are ceded to a judge in the normal course of trial. Importance of uniformity in claim interpretation for the future of the patent more convincing case of giving this task to Judge.

6. Instructions to the Jury Rule 51Kennedy v. Southern California Edison Co.

7. Verdictsa. Submission of the Case to the Juryb. Form of the Verdicts

Rule 49 Types of verdicts

o General Verdict = P or D wins & no findings of facto Special Verdict = Jury makes findings of fact on particular issues and does

not decide winner Judge decides who wins based on jury findings of fact

o General Verdict with Interrogatories = Jury both decides who wins and answers questions (provided by the Judge) on the issues of the case – ONLY if the answers and the verdict match is the verdict entered as judgment – if not, the answers to the questions rule

8. Case Management Rule 16

B. Right to a Jury Trial1. Implementation of the Right to a Jury Trial

U.S. Const., Amend. VII = “In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any court of the U.S., than according to the rules of the common law.”

o Jury right does not apply to state courtso The only right to a jury today is that which existed in 1791

Only applied in legal court, NOT equity FRCP merged courts of law & equity Problem what if legal & equitable claims exist in same suit?

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Jury right was different in each state in 1791 Framers punted and said “preserve”

Rule 38 – o Either party can invoke jury right by requesting it within 10 days of the last

pleading on the issue you wish to be tried by the juryo Party making demand must note which issues he wants jury to try – if none

noted, court assumes all issues to be tried by juryo If party only requests some issues be tried by jury, opposing party has 10 days to

request more, or the rest of the issues, be tried by jury, tooo If a party fails demand a jury trial, it constitutes a waivero Demand for jury trial may not be withdrawn without consent of both parties

Rule 39 – o If jury trial demanded get a jury trial unless

Court determines NO right to jury trial in the case Both parties stipulate to a bench trial

o If no jury trial requested, court may order one on its own for some/all of the issues

o If no jury trial right exists, court can empanel jury anyway to advise the court OR on application of both parties

Why do we have juries?

PRO Jury CON Jury QUALITY – Fairness & justice better

decided + more diverse (depending on how juries are formed)

LEGITIMATE – Not just government wailing on me

POLITICIAL THEORY – No judge/government corruption or bias (relates more to criminal trials)

12 pair of eyes are better than 1 set No past experience/prejudices with the

system – clean slate Juries more likely to find for Π in novel

claims – Judges more wedded to precedent

QUALITY – Worse decisions – gut judgments not rational

LEGITIMATE – Not based on law, evidence, or reason, really passion

POLITICAL THEORY – Tyranny of the majority (See Adickes) – community may have bad/hostile/unenlightened ideals

UNIFORMITY – Easier for judge to apply law consistently + juries are completely unpredictable

EFFICIENCY – If need all 12 deadlock + jury requires pre-trial & voir dire more time for jury trials

When does JURY get to decide the case?o See chart above:

FACT Communal/Popular Particularized When HISTORY said so

o Legal relief is sought Damages

Usually damages if $ requested is both backward & forward looking (e.g. medical bills and past + future lost wages)

If $ requested is just backward-looking, probably more likely that it’s restitution which is equitable & therefore jury will not decide on that issue (See Curtis)

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If claim underlying declaratory judgment (probably the counterclaim will be the actual claim) is just a claim for damages in equitable clothing

o Π requests equitable relief, but damages are adequateo Jury ALWAYS decides any legal claims (even if equitable claims dominate)

FIRST before Judge makes decision on equitable claims “Estoppel” must flow from jury judge because of the importance of the

jury righto New “legal right” created by statute jury right

When does a new cause of action create a “legal right?” Find an analogous old/historical cause of action – if that cause of

action was legal, so is the new one less important prong of the test – created lots of history lessons

Type of relief availableo If Congress = set amount of $ as relief legal righto If Congress gave court discretion in fashioning relief

equitable righto NOTE: If Congress says new duty to do X (looks like basic

tort claim), but sets forth equitable relief type of relief is not dispositive since the right is legal in nature and therefore jury right and probably only really entitled to damages – hence first prong of the test

“Public rights” exception o Congress can create a right between a citizen and the

government o Since government does not have to create this right, they

can define it anyway they choose, i.e. all claims will be decided by administrative agency without a jury

Beacon Theatres, Inc. v. Westover = Δ theatre opened second and threatened to sue Π in antitrust if distributor would not give them first run movies. Π sued first claiming threats of suit as duress & coercion. Π wanted injunction against Δ from threatening them and making such a big stink and declaratory judgment that their activity was reasonable and not in violation of any antitrust laws. Δ counterclaimed for damages under antitrust law and wanted a jury trial (for sympathy – little guy being squeezed out by Fox). DC compromised by saying judge will first decide if there was competition injunction and jury will then determine if there is legal liability on the antitrust claim damages for counterclaim. Problem if judge finds competition and grants injunction to Π and then jury says there is an antitrust violation and grants damages to Δ. Judge will automatically be forced to determine the jury was wrong and grant j.n.o.v. Nothing really left for jury to decide since both legal and equitable remedy turn on same question. Ultimately, Beacon sought mandamus against trial judge. DC DISSENT: Declaratory judgment is neither inherently legal nor equitable. Need to look at underlying claim and determine whether jury is permissible. Doesn’t matter what position the parties are in. DISSENT GOT IT RIGHT! S.Ct. holding: the jury must FIRST decide legal claims before the judge may decide on any equitable claims.

Notes on Beacon Theatres o Clean-Up Doctrine = In England... if suit was in equity and legal issue arose,

Judge in equity could decide the legal issue without a juryo Beacon undoes the clean-up doctrine, or at least turns it around

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o Trial Judge claimed authority to split up claims under Rule 42 (discretion to separate/consolidate claims in a case)

o PRO-Jury case – any time this type of case would have been given jury in 1791 legal claim

o 7th Amendment is NOT frozen in time Beacon Theatre destroyed existing clean-up doctrine

Dairy Queen, Inc. v. Wood = TM owner sued franchisee for not paying fees. Π wanted pure equitable remedy, i.e. an accounting (court looks over books) and injunction from using the TM. No counterclaim at all. Nevertheless, Δ gets jury trial on factual issues because (1) just because Π asking for equitable relief does not mean he’s entitled to it, i.e. damages are adequate, and (2) even if equitable claims predominate (perhaps right to accounting, but damages adequate over injunction), legal claims get decided FIRST by the jury – especially if the claims turn on the same questions of fact.

Curtis v. Loether = Π denied apartment because she was black and brought suit under Civil Rights Act fair housing clause. Congress did not say whether or not there should be a jury trial right in cases arising under the statute (hoping that in the future juries would not be so biased, but in the meantime, courts would find no jury right). S.Ct. rejected argument that new rights created by statute, i.e. did not exist in 1791, were not entitled to a jury right. HELD that if the statute enforces “legal rights” within the meaning of the 7th Amendment decisions, then Congress has created a jury right. To help decide, look to type of relief requested: Π requested both injunction AND compensatory/punitive damages. Here, the punitive damages are the quintessential legal remedy. However, the money requested and labeled “compensatory damages” was really more like restitution (backwards looking). Court also compared Title VII (fair employment) with instant Title VIII (housing) to help decide.

Tull v. U.S. = Parties had to dig deep to find a historical, analogous claim to violations of Clean Water Act. S.Ct. decides to recognize that the 2nd prong of the test for a “legal right” has more weight since it is easier to apply, i.e. more important to determine type of relief available, than an analogous old cause of action. Here, civil penalty is $10,000/day for violations. Looks like damages and not related to profit created by pollution (probably not restitution). However, Court determines that because the $ value is determined based on profit, punishment, deterrence, and other factors and there is a fixed amount, the statute created a new “legal right” and a jury right exists. S.Ct. holds that the jury may find liability but it is OK for the Judge to determine the penalty. DISSENT: Scalia – judge & jury should do both so as not to get an anomalous result, i.e. jury finds liability and judge grants $1 in punitive damages.

Chauffeurs, Teamsters, and Helpers Local 391 v. Terry = Trucking agreement and Πs filed grievance with union claiming a violation of their seniority rights. Union did nothing and Πs sued union for violation of duty of fair representation, requesting compensatory damages for lost wages & health benefits. Court determines, through lengthy historical analysis, that the claim is more like an attorney malpractice action and not like a trust action. Therefore, legal claim (since malpractice was/is legal) and Π gets jury right. CONCURRENCE: Brennan – Who cares what old claim it looked like? We’re terrible at the history stuff. DISSENT: Kennedy – MUST “preserve” jury right and therefore have duty to look for an analogous, historical claim.

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V. Former Adjudication & The Effect of a Judgment – “Getting it over with”A. Claim Preclusion (Res Judicata)

1. Terminology Res Judicata = Claim Preclusion

o If P wins 1st suit, 2nd suit for same claim precluded because 1st judgment “merged” any claims arising out of same transaction & occurrence

o If P loses 1st suit, 2nd suit for same claim precluded because 1st judgment “barred” any claims arising out of same transaction & occurrence

Collateral Estoppel = Issue PreclusionRunning Hypo = P lives in a house and gets his neighbor, D’s, mail. He brings it to his neighbor and trips and breaks his arm. P sues D for broken arm. D defends on the ground that he does not own the house.

P loses claim preclusion, i.e. P cannot bring another suit for his broken arm P loses claim preclusion, i.e. P cannot bring another suit to recover for the damage

done to his Rolex when he fell – Pete should have brought his claims for personal injury and injury to property together

P wins & later, tree falls from D’s yard on to P’s car NO claim preclusion, i.e. P CAN sue D again for the new injury since there are a different set of operative facts, i.e. a different claim

P wins & later, tree falls from D’s yard on to P’s car – Can D defend on the idea that he does not own the house? NO issue preclusion, i.e. D has already had a chance to litigate that defense, i.e. issue, and cannot assert it again

Preview

Claim Preclusion Issue Preclusion Same claim Adjudication on the merits Valid decision Final decision

Same issue Actually litigated Actually decided Necessary to Judgment

2. Claim Preclusion Rule 13 – Compulsory counterclaim rule in Federal Court – party asserting a claim,

cross-claim, counterclaim, or third-party claim, MUST at the same time bring any & all claims arising out of the same transaction & occurrence

Rule 18 – Permissive, not compulsory counterclaim rule in Federal Courto Party asserting a claim to relief as an original claim, counterclaim, cross-claim, or

third-party claim, may join either as independent or as alternate claims, as many claims, legal, equitable, or maritime, as the party has against an opposing party, even if they do not arise out of same transaction & occurrence.

If you advance a claim that is adjudicated on the merits, you cannot reassert the same claim in a subsequent suit against the same party or anyone in privity with the same party

REQUIREMENTS FOR CLAIM PRECLUSIONo Same claimo Between same parties (or anyone in privity with original parties)o Adjudication on the meritso Valid Decisiono Final Decision

What is a claim?o History Lesson

Old approach to pleading

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Each right invaded = 1 cause of action 1 writ = 1 theory of recovery Could NEVER sue on more than 1 writ at a time no preclusion

o Combination of the following to determine a claim Governing law Intent of parties Arguments Contract language Jones cautionary tale – look at EVERYTHING you’ve got to determine

what is/is not a single claim When are two claims the same?

1. Same right has been invaded2. Same wrongful act gave rise to both “claims”3. Sufficient overlap in evidence to support claims minority rule4. Same transaction or occurrence MAJORITY RULE (& same test as for supplemental jurisdiction and joinder)

The broader the definition of a claim, the more likelihood that the claim will be precluded in the future

Jones cautionary tale – look at EVERYTHING you’ve got to determine what is/is not a single claim

New Hypo = Car accident and one driver makes a defamatory statement about the other driver. FIRST SUIT: Π sues for property damage & personal injury. SECOND SUIT: Π sues for defamation. Under (1) not precluded – different right, (2) not precluded – separate wrongs of driving and speaking, (3) probably not precluded – speed, skid marks vs. witnesses hearing shouting, words – might be same witnesses testifying, but probably not enough overlap, and (4) precluded – both the defamation, the property damage, and the personal injury were the result of the same action, occurrence, common nexus, i.e. accident.

When are two parties in “privity” with one another?o Privity = Both parties have same legal liabilitieso Examples

Respondeat superior – employee/employer relationship A assigns a lease to B – A & B in privity A bringing suit in guardianship for B – A & B in privity Party 1 pays for first suit against party 2 Party 2 had adequate interest to represent party 1 in the 2nd suit

Policyo EFFICIENCY – The broader the test, the less relitigation of matters that could

have been brought and decided all together – much costlier to system & parties this is the reason why same T&O is the test for joinder

o FAIRNESS – To Δs: defend one suit at one time BUT, unfair to Πs because the other claims may not be ripe and they may

never get an adjudication on the merits if court decides that later claim was same T&O

o FAIRNESS – To Πs: defend against a counterclaim by Δ at same time as pursuing your original claim + doctrine is well-known & Πs are prepared to bring whatever they got + cheaper to bring one action all at once

o FAIRNESS – To system & witnesses: If one party can double-dip, takes away resources from other litigants + witnesses only have to show up to help once

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o FINALITY – Individuals need to know their exposure to liability & predict their obligations

o CONSISTENCY – If no preclusion, risk two courts reaching different conclusions

Claim Preclusion vs. Stare Decisiso Stare Decisis = Courts should follow legal precedento Policy of Stare Decisis

CONSISTENCY – Creates predictability, uniformity, consistency and legitimacy of the system + want to ensure that although courts create common law, there is some predictability in it

EFFICIENCY – Predictability less cases brought & no reason to relitigate the same questions

FAIRNESS – Want all similarly situated litigants to be treated alikeo Both serve same goals, but there are differences

Claim Preclusion Stare Decisis Claim Preclusion only binds parties to the

previous litigation (& those in privity with them)

Completely binds 2nd suit (more expansive)

Factual questions and application of law to those facts cannot be relitigated

Bar 2nd suit everywhere (“full faith & credit”)

Stare Decisis binds everyone including non-parties to the previous case

Can be overruled in appropriate circumstances, i.e. safety valve to protect later litigants from mistakes of previous litigants (more narrow)

Legal questions and application of that law to the facts (whatever they may be) cannot be relitigated

Bar later suits within a given jurisdiction only

Rush v. City of Maple Heights = FIRST SUIT: Π wiped out on motorcycle and sued city for property damages in Municipal Court. Π won & got $100. SECOND SUIT: Π sued government for personal injuries in trial court. Trial court found that the issue of the government’s negligence had already been established in the first suit, i.e. issue preclusion. Ohio S.Ct. held that Δ is not precluded from relitigating its own negligence – really claim preclusion barring Π from bringing the 2nd suit. Even though Π brought first suit in small claims court and could not have joined personal injuries, T.S. Π should have brought both claims together in the regular trial court... Π has the choice of forum and city had little to no incentive to litigate in the first forum.

Matthews v. New York Racing Association, Inc. = FIRST SUIT: Π claimed he was assaulted and slandered by Δ’s employees when he was thrown out of Δ’s track. Π lost. SECOND SUIT: Π claims same stuff and adds malicious prosecution, false arrest, kidnapping, but this time against Δ-employer. Claim preclusion bars Πs second suit because although he is suing a different party, really same person because employees and employer are in privity with one another. Also, kinda silly that if employees were not liable, employer could be liable for an action the employee did (but he wasn’t liable for).

Jones v. Morris Plan Bank of Portsmouth = Π finances a car with loan from Δ-bank. Contract said Δ owned title of car until the contract was satisfied and acceleration clause = whole amount becomes due if any payments are missed. Π fails to pay May & June. FIRST SUIT: Δ sues, Π did not show up so default judgment entered for Δ. In default judgment can

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ONLY get what you asked for. Π misses July. SECOND SUIT: Δ sues again and Π asserts affirmative defense of claim preclusion (See Rule 8(c)), i.e. this claim has already been litigated. Δ voluntarily dismisses the case. In the meantime, Δ repossesses the car. THIRD SUIT: Π sues for the car/value in conversion. For conversion, Π must prove he owned the car. Π argues that when Δ sued the first time, the entire loan came due (acceleration clause), but Δ only asked for part of it. When Π paid off May & June (as per the judgment), he “satisfied” the contract and ownership of the car transferred to him. Court agreed with Π and ordered damages to be paid for repossessing car by Δ.

3. Defense Preclusion Corollary to Claim Preclusion Compulsory Counterclaims

o Rule 13 = Federal Courts have compulsory counterclaim rule Efficiency, finality trump Δ’s rights

o Some jurisdictions have no compulsory counterclaim rule, but follow Mitchell, i.e. anytime a Δ asserts an affirmative defense, he must assert any related counterclaims at the same time

If Δ is already going to put the issue in evidence as defense, easier, better, more efficient to require him to assert the counterclaim at the same time

Overrides forum/fairness to Δ argument Middle ground between Federal rule & jurisdictions who do not recognize

compulsory counterclaim rule o VERY FEW jurisdictions have neither

NO ccc rule because Δs making counterclaims act like Πs but do not get benefits of being Πs

Running Hypo = P sues & D defends on the grounds that he is not the owner. P wins, but Δ doesn’t pay. P sues to enforce the judgment. D precluded from arguing that P was contributorily negligent. He should have brought that defense during the first suit because it arose out of the same transaction & occurrence. Even though not a claim, policy behind claim preclusion still applies – in fact, this is the quintessential RJ case.

Running Hypo, too = In first suit, D counterclaims for lawn damage from when P fell. D wins on the counterclaim. Can D later sue for damage to his lawn furniture? NO because counterclaim is just like a claim and therefore claim preclusion says should have brought any counterclaim arising out of same transaction & occurrence. BUT what if Δ does not assert any counterclaims, but later decides to sue for damages to his lawn & lawn furniture. Rule 13(a) states the compulsory counterclaim rule. Therefore, Δ precluded from bringing later suit because he should have asserted all counterclaims arising out of same transaction & occurrence in the first suit.

Mitchell v. Federal Intermediate Credit Bank = Jurisdiction without a compulsory counterclaim rule. Π loaned $9,000 by Δ after putting up $18,000 worth of potato crop as collateral. Δ kept entire $18,000. FIRST SUIT: Δ sued Π for payment of loan. Π entered affirmative defense of payment via the potatoes. Π won. SECOND SUIT: Π sued to recover extra money kept by bank. Court holds that even though the jurisdiction does not have a compulsory counterclaim rule, Π should have brought up the extra money in his affirmative defense, i.e. not only did I pay the debt, but I overpaid you and want my money back.

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Running Hypo = D asserts as counterclaim trespass, i.e. that P’s son road his bike across D’s lawn. This is a permissive, not compulsory counterclaim (ok if independent basis of subject-matter jurisdiction to be in federal court). 2 years later: D sues P because P’s son ran over D’s cat on the same bike joy ride. D is (claim) precluded from bringing this claim because it arose out of the same transaction & occurrence as a counterclaim that D previously brought. Doesn’t matter that the trespass claim in first suit was not the same transaction & occurrence as P tripping and falling on lawn.

B. Issue Preclusion (Collateral Estoppel)1. Actually Litigated

Preclusive effect is only given to those issues that have actually been previously litigated Must ensure it is really the same issue Why?

o One thing to want finality on a given claim, but not desirable to preclude different claims & different issues not litigated in the previous action

o Otherwise, everyone has incentive to drag in & actually litigate all possible, tangential issues... just in case

Cromwell v. County of Sac = County issued bonds surrounded by fraud (contractor ran off with money, judge got kickback, etc.). Entire bond cost $1000, each coupon worth $100 and matures each year. FIRST SUIT: Smith holds bonds in trust for Cromwell and sues for 25 coupons. County wins because the fraud in the issuance renders the bonds/coupons void unless the bearer was a bona fide purchaser for value (didn’t know about fraud). SECOND SUIT: Cromwell sues, himself, and allowed to prove that he was a bona fide purchaser of 4 bonds & 4 coupons. Cromwell not (issue) precluded from proving that he was a bona fide purchaser of these bonds & coupons because his knowledge of the fraud as to them was not litigated in the first suit. By definition, there is a separate right in each coupon/bond. CP is not a bar since different coupons, different claims.

Running Hypo = P files in small claims court for damage to his watch. D only defends on the grounds that he is not negligent. Later D’s tree falls on P’s house. Can D argue he does not own the house? YUP! The issue of ownership was not actually litigated, i.e. P did not argue/prove D did own the land and D did not argue/prove that he did not.

Running Hypo, too = P sues for personal injury arising from his fall. Both P & D actually litigate ownership and negligence. P wins. Later, tree falls. D canNOT deny ownership of land. However, he CAN deny negligence because it is not the same issue. Negligently not filling in a hole is different than negligently allowing a tree to fall. Must ensure it is really the same issue.

2. Necessarily Decided Really two requirements

o Actually Decided Can only preclude relitigation of issues that were necessarily decided by

the factfinder in the first suit Must know actual findings before preclusive effect given

o Necessary to Judgment/Verdict When is a particular finding necessary to judgment?

Reverse that finding Does it change the outcome of the previous suit?

o IF YES necessary to judgment

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o IF NO not necessary to judgment EXCEPTION: If judgment was on alternative grounds, i.e. when neither

finding, at least alone, was necessary to the judgment, D CAN assert issue preclusion against P in the second suit

Why must the issue be necessary to judgment? Appealability

o The party that wins CANNOT appeal an adverse findingo Ex. Rios Jury found R = neg, but R cannot appeal because

he got judgment in his favoro NOT fair that R = neg finding can be given preclusive

effect later If a finding either way on a given issue will not be necessary to the

judgment, less incentive to disprove that issue Jury will not be as serious in determining an issue that does not

affect the outcome

Russell v. Place = FIRST SUIT: Russell claims patent infringement. Place defends on the grounds that the invention was not novel and therefore the patent is invalid. Russell wins. SECOND SUIT: Russell sues because Place has continued to infringe. Place enters the same defense. No CP because this is the second instance of infringement. Appears that the parties actually litigated the validity of the patent and infringement of the claims in the first case. BUT the judgment came out of a general verdict that did not note which claim (1 or 2) was infringed or why Russell got damages. Jury could have found that claims 1, 2, or both were valid and that Place infringed on 1, 2, or both. So, the issues of which claims are valid and which were infringed were NOT necessarily decided.

New Running Hypo = Assume contributory negligence is a complete bar to recovery and there is no compulsory counterclaim rule. Also ignore CP for right now.P v. D P wins on general verdictLater D v. P Can D assert issue preclusion to stop P from denying his negligence or claiming that D was negligent? NO – there is no preclusive effect because we do not know what the jury decided. Jury could have found P = c. neg. OR D = neg. OR both.

Back to Old Running Hypo = FIRST SUIT: Both negligence & ownership litigated and P wins on a general verdict. Later, P’s son trips over same hole and falls. Can P assert issue preclusion to stop D from denying negligence or ownership? YES! Only 2 issues in the first case and jury had to find for P on both for P to win overall. Therefore, we know what issues were necessarily decided despite the general verdict. Assuming that it was truly the same issue, i.e. D did not sell the house in between...

Rios v. Davis = FIRST SUIT: Popular sued Davis and D interpleaded Rios. (P v. D & D v. R). Jury = special verdict: nobody gets any money, but in P v. D D wins & in D v. R R wins. Everyone was negligent. SECOND SUIT: No compulsory counterclaim rule in Texas (& R did not make any affirmative defenses, i.e. Mitchell doesn’t apply), so Rios now sues Davis. D raises issue preclusion to stop R from denying his negligence. Court held that since R’s negligence in the first suit was not necessary to the judgment there, D cannot assert issue preclusion against R. R could have asserted issue preclusion to stop D from denying his negligence since D’s negligence was necessary to judgment.

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Thoughts on Rioso In D v. R – D had to prove BOTH D ≠ neg & R = nego If jury made NO findings regarding R, R wins anyway (jury still finds D = neg)o Therefore, R = neg was not necessary to the judgment o BUT, if pretend D ≠ neg, outcome is different, i.e. D winso Therefore, D = neg was necessary to the judgment

Entirely New Hypo = Assume contributory negligence is a complete bar to recovery & no counterclaim rule. 3-way car accident involving P, D, and R. FIRST SUIT: P v. D, R. Jury finds D, R = neg and caused P’s injuries, but also P = cont neg & therefore P loses. SECOND SUIT: D v. R. Can either assert issue preclusion against the other? NO! Neither D nor R’s neg was necessary to the previous suit since P = cont neg was the only outcome determinative finding.

Take 2 = FIRST SUIT: P v. D, R. Jury = general verdict for P who recovers against both D & R. SECOND SUIT: R v. D. Can either assert issue preclusion against the other? Seems like YES. Jury could only have found that D, R = neg, P ≠ neg (since contributory negligence is complete bar). BUT THE TWO PARTIES MUST HAVE LITIGATED IN AN ADVERSE SETTING. This requirement helps decide if it is really the same issue. In the first case, both D & R were arguing that they did not cause P’s injuries. They did not argue/prove/actually litigate, nor was it actually decided whether D caused R’s injuries (the subject of suit #2). Therefore, since D & R were on the same side in first suit, neither can assert issue preclusion against the other.

Even Newer Hypo = FIRST SUIT: P v. D. D impleads R (Rule 14(a) – If P ≠ neg, D ≠ neg & R = neg, P wins against D & D wins against R cause R really caused P’s injuries). P decides to enter a claim against R, too. Jury = P wins against D & R, i.e. D, R = neg. Therefore, D loses against R, since they both caused P’s injuries & each has to pay their own share. SECOND SUIT: R v. D. Can D prevent R from denying his negligence? R’s neg was necessarily decided in relation to P, but no decision about whether D or R was responsible for each other’s injuries (even though they were adversaries). Therefore, no preclusive effect given – not the same issue.

Instead Hypo = SECOND SUIT: D v. R for D’s injuries now. Does it matter? NO... Still no previous decision as to whether D or R caused the others’ injuries.

The EXCEPTION Hypo = Only P & D in head-on collision. FIRST SUIT: P v. D. Jury = special verdict for D, i.e. D ≠ neg, P = neg. SECOND SUIT: D v. P. Can D assert issue preclusion to stop P from denying her negligence &/or claiming that D was negligent? (1) Actually litigated? Yes – special verdict. (2) Necessary to Judgment? NO – neither finding was necessary to the judgment IF D = neg, P = neg, D still wins (P’s contributory negligence is complete bar); IF D ≠ neg, P ≠ neg, D still wins (D was not negligent). Under the rules so far, there would be no issue preclusion here. BUT THIS CAN’T BE...

Consider This = FIRST SUIT: P v. D. Jury = P & D = neg. D wins. SECOND SUIT: D v. P. Here, since P’s negligence was necessarily decided and necessary to judgment (if P ≠ neg, P would have won), D can prevent P from denying her negligence. ANOMALOUS that when D = neg he CAN assert issue preclusion against P, but when D ≠ neg, he canNOT assert issue preclusion against P.

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NEW RULE: If judgment was on alternative grounds, i.e. P = neg AND D ≠ neg, the winner (here D) CAN preclude P from denying her negligence & claiming that D was negligent.

3. Defining and Characterizing the Issue Issue preclusion only has independent (from CP) force if there is a different claim Requiring that parties must have litigated in an adverse setting ensures same issue Must be the same issue to get preclusive effect

o Party asserting issue preclusion has burden to prove Actually litigated Necessarily decided AND Necessary to judgment

o If he does it, burden shifts to other party to prove that it is not the same issue Actual burden to prove depends on the issue & context/circumstances Ex. Mt. Kilamanjaro vs. Bubble still existing 2 hours later Probably same issue if facts are the same

Original Running Hypo = FIRST SUIT: P fell after tripping over hole. D defends that he does not own the land. P wins. SECOND SUIT: 15 days later, tree falls on P’s house. P sues again and D tries to assert that he does not own the land? Is this the same issue? What if 2 years apart? It is possible that he sold the house in between. Seems fairer to assume really the same issue 15 days later than 2 years later. P can assert issue preclusion to stop D from denying ownership burden shifts to D to prove that there really is a different issue, i.e. he sold the house.

What about changes in the applicable law?o Federated – New law will not allow a second suit to be brought that would be

properly barred under claim preclusion o Moser – Even though law changed, i.e. application of new law to old facts would

change outcome of first case, if the issue was actually litigated and necessarily decided in the first suit, can still be given preclusive effect in second suit

o Serves interest in FINALITY

Running Hypo, too = What if D was only housesitting for his uncle? FIRST SUIT: Court applies common law rule that people who housesit for more than 4 months are liable. P wins, D doesn’t pay. SECOND SUIT: P files enforcement suit. Sheriff takes D’s car, lien on house, etc. BUT in between two suits, state legislature overturns the common law rule. P can still get his judgment executed.

Federated Dept. Stores v. Moitie = If claim (or defense) preclusion would properly bar a second action, the fact that the first case had effectively been overruled (by legislature or common law) does not matter. The second suit will still be barred.

U.S. v. Moser = Moser served in Naval Academy. Sued government for benefits and won. Law changed so that attending academy is no longer enough for benefits. Government did not pay and Moser brought enforcement proceeding. Government was issue precluded from relying on the change in the law, i.e. the issue of whether attending the academy entitled Moser to benefits had already been litigated.

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Commissioner of Internal Revenue v. Sunnen = Taxpayer assigned income to wife which meant IRS couldn’t touch it. Law changed Sunnen S.O.L. and has to pay. Distinguishable from Moser? Special tax context requires that all taxpayers are treated the same. This interest trumps reliance of Sunnen on previous suit’s outcome and the interest in finality on a given issue. Ad hoc policy choice by courts: If cases happen a lot, more important to ensure similarly situated litigants are treated alike, e.g. taxes, than in cases that are very individualized, e.g. one person suing the government for their academy benefits, where it will be ok to ignore changes in law.

Running Hypo = FIRST SUIT: Before P can sue D for his trip, government prosecutes D for a public nuisance. Jury acquits, i.e. D ≠ neg. SECOND SUIT: P v. D. Can D assert issue preclusion to stop P from asserting D = neg based on the criminal suit? NO! Just because jury did not find D = neg beyond shadow of a doubt does not mean that civil jury will not find D = neg by preponderance of the evidence. If jury had found D = neg beyond a shadow of a doubt, that would certainly be enough to prove D had been negligence by a preponderance of the evidence and P could preclude D from denying his negligence.

C. The Required Quality of Judgment1. Issues Resolved After Less Than Full Trial

Default judgments o NOT given issue preclusive effect – do not meet actually litigated requiremento ARE given claim preclusive effect

Admissionso Rule 36 Admissions will NOT bind party in a subsequent suit

Only use is to narrow issues to those actually in controversy Just because one issue is not important to one suit does not mean it has the

same value in a subsequent suito BUT anything admitted in testimony IS given issue preclusive effect in later suit

Judgment as a matter of law IS given full preclusive effecto For issue preclusion: actually litigated and necessarily decided both satisfied since

no reasonable jury could come to another conclusion given facts parties enteredo For claim preclusion: as long as it is the same claim, counts as final, valid

adjudication on merits

Securities Exchange Commission v. Monarch Funding Corporation = FIRST SUIT: Δ convicted and findings of fraud were made in connection with his sentence hearing. SECOND SUIT: Stockholders now sue Monarch for fraud. Court finds that Stockholders cannot assert issue preclusion to stop M from denying his fraud because he did not have a fair chance to litigate the issue in the sentence hearing. Related to actually litigated requirement. Issue raised, but not resolved in a full-fledged trial. Judgments will only be given preclusive effect if they gave party a fair forum to litigate the issue.

Running Hypo = FIRST SUIT: P sues for damage to his watch. P wins default judgment. SECOND SUIT: P sues again when tree falls on his house. Can P now assert issue preclusion to stop D from denying ownership of the property? NO because the issue was not actually litigated.

2. Quality of Decision Claim Preclusion requires that the previous judgment be “on the merits”

o Types of judgments that are “on the merits”

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Jury Judge Judgment as a matter of law (directed verdict & j.n.o.v.) Summary judgment

o What about Rule 12(b)(6) dismissal? Rule 41(b) USED TO SAY: 12(b)(6) is adjudication on merits Supreme Court later said I don’t think so Still not resolved Arguments that 12(b)(6) SHOULD have preclusive effect

Lenient rules for amendment (again & again) exist and if Π still could not get his allegations to equal a claim, he should be barred from bringing those allegations again assume Π has NO complaint that can state a claim for relief

Arguments that 12(b)(6) SHOULD NOT have preclusive effect Court only held that the complaint failed to state a claim, not that

Π cannot prevail on his “claim” if he can ameliorate the pleading Claim preclusion bars all related claims – too harsh to bar all

claims arising out of same transaction & occurrence as allegations that did not even amount to a claim

12(b)(6) = fiction of NO claim – If no claim, Π can’t be precluded from bringing a non-claim later

Not a meaningful day in court Claim Preclusion requires a “valid judgment”

o Default judgments are given claim preclusive effecto BUT in an enforcement proceeding, D can argue that the first suit was not valid,

i.e. court had no personal jurisdiction over D and therefore judgment not valid Claim Preclusion also requires that decision also be final see below

3. Claims Settled Outside Judicial System

Hanover Logansport, Inc. v. Robert C. Anderson, Inc. = FIRST SUIT: Parties got a consent judgment, i.e. parties agreed to settle and the court granted judgment in the form they agreed to, but there was a reservation on an issue/claim. Court held that in order for that issue/claim to be brought in a second suit, (1) it must be clear that both parties agreed to reserve that issue/claim, (2) it must state which issues/claims are being reserved, (3) the reservation must be incorporated into the offer of judgment requested of the court, and (4) it must be an inherent part of the original complaint. Otherwise, any and all claims arising out of same transaction & occurrence will be barred and any issues that appear actually litigated and necessarily decided will be given issue preclusive effect.

D. Persons Benefited and Persons Bound by Preclusion1. Traditional Model

BOTH issue and claim preclusion can only be asserted by a party (or someone in privity therewith) to the previous suit

Ralph Wolff & Sons v. New Zealand Ins. Co. = In order to bind a party to a previous judgment by preclusion, the party asserting preclusion must also be bound, i.e. there must be mutuality.

2. Mutuality

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Mutuality = Can only bind someone who could bind you if the result were different in the first suit

Claim Preclusion = pure rule of mutualityo Can only be asserted by a party to the previous suito Claim Preclusion can never be asserted by or against a stranger to the first actiono Exception for class actions

P sues on behalf of class Class members are bound by the decision since technically they are all Πs

Issue Preclusion is another storyo Issue Preclusion can never be asserted against a stranger to the first action

Should there still be mutuality?o FAIRNESS

Yes = Unfair that one party can bind the other, but not vice versa No

Mutuality does not create an even playing field Only helps those who have already lost and are getting their 2nd,

3rd,... 100th chance Unfair to others needing judicial resources

o EFFICIENCY Yes = Party is compelled to intervene in the first suit less, more

consolidated actions No = Party can’t always intervene two cases deciding same issue – If

no mutuality, second trial will be much faster – no need to relitigate the issue

o FINALITY No = If Π can keep suing new Δs, no finality for anyone involved – Issue

gets re-resolved over & over againo Mutuality has been chipped away generally when it conflicts with the overall

goals of preclusion, i.e. when the case falls in “no” above Nonmutual Collateral Estoppel

o Two questions Is the nonmutual CE being asserted offensively or defensively? Is the nonmutual CE being asserted against Π or Δ in first suit?

o DEFENSIVE Since most jurisdictions have compulsory counterclaim rules OR at least

follow Marshall, OK to allow defensive nonmutual collateral estoppel Most sympathetic case to do away with mutuality all together

o OFFENSIVE More problematic Π likely gaming system – unfair to let Π piggyback on previous judgment RR hypo stopped further erosion (after Bernhard) of mutuality

Train with 50 passengers crashes P1 v. RR RR P2 v. RR – RR cannot assert CE against P2 since he is a stranger to

the first action, therefore RR must relitigate its negligence RR wins suits 1-25 P26 v. RR anomalous outcome where P26 wins P27 v. RR – NOW appears P27 can assert offensive nonmutual CE

against RR to prevent it from denying its negligence BUT RR still can’t assert CE against P27 (stranger to previous action)

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Now RR automatically loses suits 27-50 THIS CAN’T BE – one inconsistent judgment can stop the RR

from both denying its negligence and, therefore, winning in all the subsequent cases

Must consider Parklane factors when deciding if offensive is proper (only if none of the problems above exist is it OK):

Did party use wait & see approach? gaming the system Could or should party have intervened in the first suit? Did party have full incentive to litigate in first suit? Did the first forum grant party less procedural opportunities than

the second forum? Did party have full & fair opportunity to litigate in first suit? Is there a risk of inconsistent judgments?

o THESE ARE ONLY THE RULES FOR PRECLUSIVE EFFECT OF FEDERAL COURT JUDGMENTS

Each state can define the preclusive effect of their judgments Later courts must give a judgment that effect

Nonmutual Collateral Estoppel Spectrum1. P v. D D wins

P v. B – B wants to assert defensive nonmutual collateral estoppel against Π in first suitBEST CHANCE for nonmutual collateral estoppel

P is looking to get a second shot at winning2. P v. D P wins

D v. R – R wants to assert defensive nonmutual collateral estoppel against Δ in first suitMORE WARY

D did not get to choose first forum – might have been at a disadvantage3. P v. D D wins

R v. P – R wants to assert offensive nonmutual collateral estoppel against Π in first suitEVEN MORE WARY

P did get to choose the forum, but P can never preclude stranger R so kinda unfairCould be inconsistent judgments, look at factors

4. P v. D P winsR v. D – R wants to assert offensive nonmutual collateral estoppel against Δ in first suitWORST CASE for nonmutual collateral estoppel

D did not get to choose first OR second forum – must look VERY carefully at Parklane factors and only if all stars aligned will this be ok

Taxi/Bus Hypo = Taxi and bus have crash. Cab passenger (P) was injured. FIRST SUIT: T v. B. Jury finds T ≠ neg, B = neg and T wins. SECOND SUIT: P v. B. 2 claims of issue preclusion (1) T wants to assert issue preclusion against P to stop her from relitigating T’s negligence. T canNOT assert issue preclusion against P since she is a stranger to the first suit. (2) P wants to assert issue preclusion against B from denying his negligence. B was a party to the first suit who did litigate and lost. Even though B only found negligent as to T’s damages, really same issue since P was in T’s taxicab. Therefore P can probably assert issue preclusion against B. B will argue (a) that P is gaming the system, i.e. she could have intervened in the first suit, but decided to piggyback on T’s judgment instead, (b) he had a lower incentive to litigate in first suit ($5000 car vs. $1 million injuries), and (c) B was not a Π last time, didn’t get to choose the forum, which was possibly inhospitable to him.

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City of Anderson v. Fleming = P falls on construction site. FIRST SUIT: P sues contractor K, K wins. SECOND SUIT: P sues city, C, who employed contractor. Can C assert defensive nonmutual collateral estoppel to stop P from relitigating C’s negligence (really K’s negligence by proxy)? Court holds that C can assert nonmutual collateral estoppel to stop P from relitigating because of the doctrine of subrogation, i.e. a type of indemnification (one held liable to another when the “another” is liable to a 3rd party). Here, if C loses, K has to pay, i.e. indemnify the city. Issue preclusion allowed to prevent a bizarre result: So, when C loses, the jury is telling C that they are derivatively liable for K’s negligence even though a previous jury found K ≠ negligent. Thoughts on Fleming

o No privity between contractor and city since K is liable to C, but C not liable to Ko Indemnity Circle

A is found not negligent Then B is found liable for A’s negligent conduct EITHER

B will have to pay, but A won’t not fair to B paying for something that not only did they not do wrong, but neither did the party who should be indemnifying them

A subject to inconsistent judgments and probably has to pay B

Bernhard v. Bank of America Nat. Trust & Sav. Ass’n = Elderly woman gave $ to Cook to manage. She died and Cook became the executor. Cook asked for an accounting and “forgot” to include that $ because he kept it. FIRST SUIT: Bernhard, beneficiary of will, sued in probate for the $ to be placed back into the estate. Court finds that the money was a gift to Cook and he wins. SECOND SUIT: Now, Bernhard is the executrix (Cook bailed) and she sues the bank where the money is held claiming that the $ belongs to the estate, not Cook, and they should give it back. Bank asserts defensive nonmutual collateral estoppel against Bernhard claiming that the issue of ownership of the money was already litigated. Rule of pure mutuality with indemnity circle exception collateral estoppel OK. Otherwise, Bank could lose but not collect the $ back from Cook (just like Fleming). However, court announces broader rule: mutuality no longer bars a stranger to the first action from asserting defensive nonmutual collateral estoppel.

Parklane Hosiery Co. v. Shore = FIRST SUIT: Government sued Parklane for securities violations. Government won proving fraud. SECOND SUIT: Stockholders sue and want to use offensive nonmutual collateral estoppel to stop Parklane from denying fraud. Parklane can’t really say this would be unfair because: (1) stockholders could not have joined in first suit (unlike RR passengers), (2) no risk that stockholders were using “wait & see” approach since they filed their suit first, (3) Parklane lost first suit no chance of inconsistent judgments (unlike RR where losing 1 led to 25 wins and 25 losses), and (4) even though first suit was decided by judge and second suit would give rise to jury right, preclusion is always ok regardless of factfinder identity in the first suit. Therefore, offensive nonmutual collateral estoppel OK here.

VI. Post-Trial Correction of Errors – Back to “Getting it right”A. Ground for Seeking Relief from District Courts

1. Power to Set Aside a Judgment on Grounds Discovered After it was Rendered Rule 59 – Party can get a new trial if

o New evidence that could not have been found before

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Evidence must be highly relevant Evidence may show that jury verdict based on false evidence

Rule 60(a) – Clerical Mistakeso May be corrected at any time by court on its own initiative or on the motion of

any party and after such notice, if any, as the court orderso During pendency of an appeal, mistakes can be corrected before appeal is

docketed in appellate courto After docketed, mistakes can be corrected while appeal is pending only with leave

of appellate court Rule 60(b) – Everything Else

o On motion and upon such terms as are just, court may relieve a party or party’s legal representative from a final judgment, order, or proceeding for the following reasons:

1. Mistake, inadvertence, surprise or excusable neglect2. Newly discovered evidence which could not have been discovered in time

to move for new trial under Rule 593. Fraud (either intrinsic or extrinsic), misrepresentation, or other

misconduct of an adverse party4. Judgment is void5. Judgment has been satisfied, released, or discharged, OR a prior

judgment upon which it is based has been reversed, vacated, or it is no longer equitable that the judgment have prospective application

5 does NOT apply to stare decisis, i.e. can’t reopen a case because the law has changed

6. Any other reason justifying relief from the operation of the judgment 6 NOT general catch-all Courts already reluctant to reopen cases – especially reluctant to do

it under Rule 60(b)(6) give people the idea that no judgment was ever really final or over

Would be allowed in situations of VERY GRAVE unfairnesso Ex. Π suing to stop IRS from deporting himo Π being held by governmento Government not letting him get his mail, including

government’s motion to dismiss caseo Π didn’t/couldn’t answer case got dismissed

o Motion shall be made with a “reasonable time” and for reasons 1-3, not more than one year after judgment

o Motion under this rule does not affect the finality of a judgment or suspend its operation

o This rule does not limit the power of a court to entertain an independent action to

Relieve a party from judgment Grant relief to a Δ not actually personally notified Set aside a judgment for fraud upon the court

Independent Action = law suit asking court to undo prior judgment Not common today – if it was this easy, Rule 60(b) and its

limitations would be rendered pointlesso Procedure for obtaining any relief from a judgment is NOW by motion prescribed

in this rule or by an independent action

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Handout #8 = Π wanted a new trial on the grounds of erroneous jury instructions, but waited to file under Rule 59 until he got a transcript of the proceedings (so he’d have the actual instructions in hand). Motion for new trial was denied as untimely even though district judge granted an order giving him a 10-day extension to file as agreed to by opposing counsel. Rule 6 states that district court can extend any time period except that for filing Rule 50/59 motions for j.n.o.v./new trial. Π asked for relief under Rule 60(b) and again his motion was denied. Π appealed both decisions. FRAP Rule 4 = 30 days from final judgment to appeal. The appeal was also untimely because it was 30 days after an untimely j.n.o.v./new trial motion. Therefore, Π was only allowed to appeal from the Rule 60(b) decision and not from the initial denial of his motion for a new trial. Π claimed “excusable neglect,” i.e. he did not know that the district court could not extend the time to file Rule 59 motion, especially since district court did extend the time. Appellate Court held that ignorance of the rules is no defense. Even though this seems unfair, Π probably should not be granted relief under Rule 60(b)(6) – not serious enough situation.

B. Appellate Review and the Final Judgment Rule1. Principle of Finality

28 U.S.C. § 1291 – Courts of appeals (other than U.S. Court of Appeals for the Federal Circuit) shall have jurisdiction of appeals from all final decisions of the district courts, except where a direct review may be had in the Supreme Court.

28 U.S.C. § 1292 – Interlocutory Decisionso § 1292(a) – Except for (c) & (d), appellate courts shall have jurisdiction on

appeals from: Interlocutory order from US district courts granting, continuing,

modifying, refusing or dissolving injunctions, or refusing to modify injunctions, except for direct review by the Supreme Court

Interlocutory orders appointing receivers, or refusing orders to wind up receiverships or to take steps to accomplish the purposes thereof

Interlocutory decrees of such district courts determining the rights and liabilities of parties to admiralty cases

o § 1292(b) – When a district judge thinks that such order involves a controlling question of law where there is substantial ground for difference of opinion so that immediate appeal may materially advance the ultimate termination of the litigation, he shall so state in writing. The appellate court may in its discretion permit an appeal to be taken from such order if the application is made within 10 days after the entry of the order: Provided that the applications shall not stay proceedings in the district court or the appellate court or a judge shall so order

o § 1292(c) – The U.S. Court of Appeals for the Federal Circuit shall have exclusive jurisdiction of

An appeal for an interlocutory order described in (a) or (b) of this section in any case over which the court would have jurisdiction of an appeal under § 1295

An appeal from a judgment in a civil action for patent infringement which would otherwise be appealable to the USCTA and is final except for an accounting

o § 1292(d)(1) to (3) – Chief Judge of Court of International Trade and Chief Judge for the Court of Federal Claims [blah, blah, blah same as (b)] Federal Circuit may take appeal and there will be no stay in proceedings

o § 1292(d)(4) – Federal Circuit has exclusive jurisdiction of an appeal from district court in Virgin Islands, Guam, Mariana Island granting or denying a motion to

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transfer an action to the US Court of Federal Claims – When motion to transfer is filed, there will be no further proceedings in the district court until 60 days after the court has ruled on the motion, but there will be no delay in preliminary injunctive relief

o § 1292(e) – Supreme Court may prescribe rules, in accordance with § 2072 to provide for an appeal of an interlocutory decision to the appellate court that is not otherwise provided for

FINAL JUDGMENT = Nothing remains for the trial court to doo If trial will continue after an order, there is no final judgmento That order is called “interlocutory”

Final Judgment Ruleo If no final judgment, appellate court has NO jurisdiction to hear the appealo If no final judgment rule cases would yo-yo between trial and appellate courts

Exceptions to Final Judgment Rule OR other ways to get to the court of appeals before a final judgment is rendered

o § 1292(b) = Party can appeal interlocutory order with agreement of both trial and appellate courts if

Issues present controlling/dispositive question of law, the resolution of which will hasten end of trial

o § 1291(a) = Certain types of interlocutory orders are immediately appealable Classic Example: preliminary injunctions Why? Because it is an effective prejudgment of the facts before trial

o Rule 54(b) = A claim w.r.t. a party may be immediately appealable if certified by trial court in the interest of saving time

o Rule 23(f) = Class certification rulings are immediately appealableo Collateral Order Ruleo Seeking writ of mandamus against trial judgeo Ignore trial court order can challenge the order in contempt proceedings

Policy

PRO Final Judgment Rule (Pro Federal Rule)

CON Final Judgment Rule(Pro NY Rule)

Hard to tell what impact the order will have on the final outcome, e.g. Δ may with interlocutory order, but wins anyway

Consolidate all matters at issue on appeal Otherwise, trial will take forever with all

the yo-yoing up & down Otherwise, subject to abuse – Δ can out-$

a pay by appealing every order

Interlocutory orders may be dispositive, i.e. effectively end the case – better to resolve it now than litigate a moot case

Create precedent on interlocutory issues Best to have guidance on a tough call

when the evidence is fresh Hard to gauge how much of an effect a

bad order will have on the rest of the case – could be fighting uphill battle

Policy decisions depend a lot on whether trail courts are more often right or wrongo If usually right NY Rule is wastefulo If usually wrong NY Rule allows case to be resolved correctly in THIS trial

rather than requiring litigants to wait for appellate court to reverse and possibly remand for new trial (if really big error)

Liberty Mutual Insurance Co. v. Wetzel = DC granted partial summary judgment on issue of liability only. No decision had been made on relief. Δ appealed. Appellate court affirmed

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summary judgment. S.Ct. granted cert to say that the appeal should not have been granted since there was no final judgment in the case. Remanded the case back to the trial court. Appellate courts cannot hear premature appeals from something other than final judgments.

2. Cases Involving Multiple Claims &/or Parties Rule 54(b) – When more than one claim is presented for relief in an action, whether as

a claim, counterclaim, cross-claim, or third-party claim OR when multiple parties are involved, court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties

o ONLY upon express determination that there is no just reason for delay and upon an express direction for entry of judgment

o If no such determination and direction, any order or other form of decision which adjudicates fewer than all the claims of fewer than all the parties shall not terminate the action as to any of the claims or parties and the order is subject to revision at any time before the entry of judgment adjudicating all the claims of all parties

When will DC certify a claim as a final judgment?o Time will be saved if the claim becomes immediately appealableo If a claim is sufficiently unrelated and separable from the other pending claims,

i.e. turns on different facts

3. Decisions Involving “Collateral Orders” Certain decisions not falling under Rule 54(b), § 1292(a), (b) are still immediately

appealable Collateral Order Rule

o Appellate court can review collateral order immediately if review would be ineffective later AND the issue is collateral to the main issues in the case

o The right affected by the order must be separate from and collateral to (on the side) the main issues in the case

o Must be impossible for appellate court to fix damage done by order in an appeal after final judgment

Cohen v. Beneficial Industrial Loan Corp. = Announced “Collateral Order Rule.” Shareholders sued company. NJ Law: Πs must post bond to pay Δ’s legal fees in case Π loses. Π files in federal court in which the judge holds (in an Erie decision) that state law does not apply (its “arguably procedural”). This ruling is NOT a final judgment and it did not fit into any existing exception. BUT court held that Δs could appeal right away because there would be no way to undo the damage later. In other words, if Δ wins, no bond. Appeal decision that NJ law does not apply and Δ wins on appeal. Well, Δ has won, but there is no money sitting around to pay the attorney’s fees so it’s moot.

Coopers & Lybrand v. Livesay = Order granting or denying class certification is NOT immediately appealable since it did not fall into any of the established exceptions. Π could always continue litigation on his own. No longer good law – Class certification rules ARE now appealable under Rule 23(f) since they are an important threshold decision in a class action suit.

C. Standards of Appellate Review1. Types of Review

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De Novo or Anewo Pure questions of lawo NO deference given to district Judge’s decisiono Most likely to be reversedo Grant/Denial of j.n.o.v. falls into this category

Appellate courts may not review jury verdicts CAN review decisions by Judge to grant or deny j.n.o.v. Same standard, i.e. could a reasonable jury find the way the jury found

Clearly Erroneous or Clear Erroro Pure questions of facto Judge has made factual findingso SOME deference given – Judge was there, saw evidence, heard witnesses, etc.o Problem: Is it really fact & not law?

Abuse of Discretiono Discretionary decisions made by Judgeo LOTS of deferenceo Least likely to be reversedo If DC Judge chooses one of two equally possible conclusions as to any given fact

or application of law to fact, appellate court will never find abuse of discretion WHY is there deference in varying degrees for findings of fact and none for findings of

law – strengths of each acting entity

Judge Jury Court of Appeals Has opportunity to assess credibility/demeanor of

witnesses – good at it, too Systemic efficiency – more efficient to let judge

make the decisions even if judge and appellate court are in an equal position to do so

Reviewing facts de novo is redundant and inefficient

Trial judges have expertise and experience in sifting through evidence

Popular judgment & common sense

12 minds are better than 1

Better suited to answer questions of law

Important that higher judges create precedent

House painting Hypo = Employee of Acme House Painting is alone on a ladder at noon. At the end of the day, he is found dead at the foot of the ladder. Cause of death = heart attack. Widow files a claim for workers’ compensation. If husband fell first and then had heart attack benefits, if vice versa no benefits. Judge finds more likely than not husband fell and then had the heart attack. Appellate court decision rests on if they determine that each situation was equally plausible and therefore Judge did not abuse discretion. But, either scenario is perfectly equally as likely, widow should lose since she did not carry her burden of persuasion of showing preponderance of the evidence, i.e. 50%+. Then again, if it seems more likely that he had the heart attack first, Judges decision was clearly erroneous.

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