CIVIL PROCEDURE II OUTLINESpring Semester 2002

Prof. Raven-Hansen

I. SIMPLE JOINDER OF CLAIMSa. STEPS:

i. GENERAL – Definition of Same Transaction or Occurrence: 1. Are the issues of fact and law raised in the claim and the counterclaim largely the same2. Would res judicata bar a subsequent suit on the party’s counterclaim, absent the compulsory counterclaim

rule?3. Will substantially the same evidence support or refute the claim as well as the counterclaim4. Is there a logical relationship between the claim and the counterclaim? (look at but for causation)

ii. Joinder of Parties – Rule 20 ( not compulsory ) 1. Must arise from same transaction or occurrence; AND2. Must involve some common question of fact or law

iii. Joinder of Claims – Rule 13, 14, and 18 1. Plaintiff’s Joinder - Rule 18

a. Is there an independent claim i. Which has been properly joined

ii. over which the court does have SMJ? (If SMJ is an issue)2. Defendant’s Joinder

a. Counter-Claim - Rule 13i. Compulsory – same transaction or occurrence (covered by §1367)

ii. Permissive – unrelated claim1. Is there an anchor claim

a. If no, can still assert, but §1367 doesn’t apply absent an exceptionb. Cross-Claim – Rule 13 (Not compulsory)

i. Must be same transaction or occurrenceii. No unrelated claims

1. Is there a related claim already asserted?a. If yes, Rule 18 allows assertion of additional claims (must have SMJ)

iii. If by a plaintiff, can’t destroy complete diversity jurisdiction (§1367)c. Impleader – Rule 14 (not compulsory)

i. Is impleader proper under procedural rules?ii. Must look to applicable tort law to determine if law entitles 3d plaintiff to

reimbursement from 3d defendant. iii. Is there SMJ???

1. If destroys complete diversity, must consider postureiv. Once a party has been properly impleaded, Rule 14(a) allows various other related

claims to be asserted; 1. Rule allows plaintiff to assert claims against the third party defendant that meet the

same transaction test; 2. Once third party has been brought in, he and the original defendant become

opposing parties thus triggering the counterclaim provisions of 13(a) and 13(b)a. The Applicable Rules

ii. Federal Rule 7(a). Pleadingsiii. Federal Rule 13. Counterclaims/Crossclaimsiv. Federal Rule 14. Third Party Practicev. Federal Rule 17. Parties

vi. Federal Rule 18. Joinder of Claims & Remediesvii. Federal Rule 19. Compulsory Joinder

viii. Federal Rule 20. Permissive Joinder of Partiesix. Federal Rule 21. Misjoinder and Non-joinder of Partiesx. Federal Rule 22. Interpleader

b. Introductioni. Modern Joinder practice adopts the theory of equity and permits the joinder of parties and claims along

transactional linesii. “Packaging” serves many functions:

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1. avoids duplicate litigation; avoids unnecessary expense for the parties and the court; may also contribute to public confidence in judicial process by affording consistent decisions and promoting cohesion in the application of the law

iii. Packaging has Disadvantages as well:1. Makes litigation very complex and may take longer than if case was not joined; may override or limit

plaintiff’s choice of forum and the scope of litigation that plaintiff wants to pursueiv. Generally, courts have given great authority and autonomy to plaintiff’s in light of joinder limitationsv. Joinder only provides procedural mechanisms by which plaintiffs can assert a variety of claims; does not

supercede or change jurisdictional or venue requirements1. Often however addition of parties or claims won’t affect venue

vi. Every claim joined in federal court must have subject matter jurisdiction; 1. Courts may allow the claim under supplemental jurisdiction

vii. There are 2 questions to consider: 1. Is there a joinder Rule that permits the assertion of this claim2. If so, is the claim supported by subject matter jurisdiction?

c. The Federal Rules Regarding Joindera. Joinder is the first procedural issue for which the Federal Rules of Civil Procedure is the governing lawb. In 1934, Congress passed the Rules Enabling Act which authorized the US Supreme Court to promulgate rules of

procedure to govern the practice in the federal district courtsi. 28 USC §2072 : The Supreme court shall have the power to prescribe general rules of practice and

procedure and rule of evidence for cases in the US district courts (including proceedings before magistrates thereof) and courts of appeals

c. Supreme Court then established an Advisory Committee of eminent lawyers, judges, and scholars to draft a set of uniform rules of practice; Advisory Committee continues to exist, constantly review the Rules, and periodically recommends amendments; basic structure of rules has remained same since 1938

d. Federal rules do not necessarily govern in state courts; many states have adopted a set of rules similar to the FRCP, but not necessarily identical

d. Initial Joinder of Partiesi. Rules leave it to the plaintiff to decide who the parties will be, but Rule 20(a) does set some limits on the

plaintiff’s choice:1. All persons may join in one action as plaintiff’s if they assert any right to relief jointly, severally,

or in the alternative in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all these persons will arise in the action; the standard is the same for joining defendants

ii. Rule 20(a) authorizes but does not require plaintiffs to join multiple parties together for claims arising out of the same transaction or occurrence

iii. There is a two part test for joinder of parties: 1. Must arise from same transaction or occurrence; AND 2. Must involve some common question of law or fact

iv. Four Tests for Same Transaction or Occurrence (all are problematic)1. Are the issues of fact and law raised in the claim and the counterclaim largely the same2. Would res judicata bar a subsequent suit on the party’s counterclaim, absent the compulsory

counterclaim rule?3. Will substantially the same evidence support or refute the claim as well as the counterclaim4. Is there a logical relationship between the claim and the counterclaim? (look at but for causation)

e. Plaintiff’s Joinder – Rule 18 and Rule 20i. Res judicata bars a party who has sued a defendant one for a claim from doing so again

ii. If a claim could have be joined in the original suit, the claim cannot be tried subsequent to trial under another claim; compulsory claim

iii. Rule 18(a) – CLAIM JOINDER: provides that once there is an anchor claim, a party can join any other claim against claimee—related or not—this is only permission, court must have JURSIDICTION

iv. If the claims asserted arise from a single set of facts, then the parties will litigate all of the claims at the same time; thus while all claims an be asserted and joined, claims not arising from a single set of facts will most likely be litigated separately

1. Rule 42(b) allows and authorizes the trial judge to order a separate trial of unrelated claims; the court may order a separate trial of any claim…; thus the plaintiff sets the scope of litigation by the claim, but the judge determines how the issues will be tried

v. Rule 20 – PERMISSIVE JOINDER OF PARTIES1. Claims must arise out of the same transaction and must have some common question of law or fact2. Rule is permissive, but parties not required to join

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3. Rules: 1. Purpose of allowing joinder of claims is to promote trial convenience and to prevent loss of time

to the Court and the litigants2. There are two primary requisites for joinder:

a. Right to relief be asserted by each plaintiff relating to or arising out of the same transaction or occurrence or series of transactions or occurrence; and

b. That some question of law or fact common to all of the parties arise in the same actiona. The determination of joinder is left to the wide discretion of the court

4. Misc: a. Rule 21 empowers the court to sever claims which are improperly joined under Rule 20(a) into

separate cases; b. Rule 42 authorizes the court to order separate trial of claims by different plaintiffs, or the claims

against different defendants, even through they are properly brought in a single suit under Rule 20(a)

c. Rule 82 Jurisdiction issues trumps all elsef. Defendant’s Joinder

i. SMJ and PJ must still be satisfied for all!!!ii. Counterclaims – Rule 13 (a) (b)

i. Counterclaim under Rule 13 - counterclaim is a claim for relief by a defending party back against the party who is claiming relief from her

1. Counterclaims come in two stripes: compulsory Rule 13(a) and permissive Rule 13(b),ii. Rule 13(a) Compulsory Counterclaims –

1. Rule 13 (a) A compulsory counterclaim is one that arises out of the same transaction or occurrence as the opposing party’s claims

2. Rule 13(a) Compulsory claims must be asserted in the original suit or else the claim is waived3. A party may not later raise a compulsory counterclaim in a separate suit if it was not raised in the

original suitiii. Rule 13 (b) Permissive Counterclaims

1. Rule 13(b) A counterclaim is permissive if it does not arise out of the same underlying events; a defendant may assert it, but is not required to;

iii. Cross-Claims – Rule 13(g)1. Rule 13(g), a claim against a co-party, a pleading may state as a cross-claim any claim by one party against

a co-party arising out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein

2. Parties may not assert unrelated cross-claims a. Unrelated cross-claims are allowed only after a valid related claim has been made and then under

18(a) unrelated cross-claim allowed3. 13(g) uses the word “may”; thus cross-claims are not compulsory4. Why not have a mandatory cross-claim rule?

a. Main Mainly because concern with preserving plaintiff’s choice of forum is greater than drive for efficiency; also efficiency may not be achieved if action gets too large and too complex

5. Rule 13(g) clearly allows a party to anticipate that the other party may be held liable and thus while the claim would not actually be available until the originating party has been held liable

6. Rule 13 (h) allows joinder of additional parties in counter-claims and cross-claims pursuant to Rule 19 and Rule 20

7. Banner Industries of New York v. Sansom ()a. Facts: Defendant filed in Circuit Court of Jackson County, WV; Defendants published letter alleging

that plaintiffs had made deliberate misrepresentations; Plaintiff then filed this action in federal court claiming that the letters published were false and defamatory; Defendant filed a motion to dismiss pursuant to Rule 13(a) on the grounds that the plaintiff’s claim is compulsory in the state action and therefore cannot be asserted separately in another suit

b. Rule: Claim was compulsoryi. In determining whether a claim is compulsory or not, we should look to four factors:

1. Are the issues of fact and law raised2. Would res judicata bar a subsequent suit on the party’s counterclaim absent the

compulsory counterclaim rule3. Will substantially the same evidence support or refute the claim aw well as the

counterclaim4. Is there any logical relationship between the claim and counterclaim

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ii. These four factors need not all be present, but should be weighed and balanced; specifically, the same evidence factor should not be determinative;

c. Gloss: i. NOTE that 13(a) applies only to claims available at the time the pleading was filed.

ii. Note that most federal courts, in considered a counterclaim, will look to the rules of the state governing the initial suit; if the claims would be compulsory under those state rules, then it will rule as such

1. In some cases, Rule 13(a) may restrain the defendant’s choices in making a strategic choice; maybe the federal court would be more convenient or more favorable to the claim; but Rule 13(a) forces them to litigate in the forum chosen by the plaintiff

iii. Requiring defendants to assert counterclaims can raise substantial problems with subject matter jurisdiction; consider amount in controversy…is there federal question jurisdiction?

1. In some cases, when the court has subject matter jurisdiction over the original claim, the federal court has “supplemental jurisdiction” over other claims asserted by the same parties that arise from the same underlying events

2. Note that if the counterclaim is permissive, the court will not have jurisdictiong. Impleaders

i. Rule 14. Impleader 1. STEPS:

a. Is impleader proper under procedural rules?b. Must look tot applicable tort law to determine if law entitles 3d plaintiff to reimbursement

from 3d defendant. 2. Rule 14(a) only allows a defendant to drag in a third party to pass on liability the defendant incurs to the

plaintiff; a. Defendant cannot use rule 14(a) as a mean to bring in a party who may be liable directly to the

plaintiff, but who would not be liable to the defendant; b. Defendant must have a derivative claim, not just an argument that the plaintiff could have sued the

third partyc. A defendant can’t implead a third party because that third party might be liable to the defendant for

the defendant’s own losses from the same transaction; but note that once a party has been properly impleaded, under Rule 18(a) it may also assert any other claims

d. Rule only requires that the impleaded third party “may be” liable to the defendant; its liability to the defendant need not be previously adjudicated when the impleader is filed

e. Impleading a party who is directly liable to the plaintiff and not to the defendant is not allowed because it is the plaintiff’s choice of who to sue and the rule do not want to interfere with plaintiff’s choice of parties and forum; plaintiff can not be forced to amend the complaint to add the third party

3. Most common impleader cases are claims for contribution4. Rule 14(a) allows the third-party defendant to raise defenses on behalf of the primary defendant; can raise

defenses to get defendant of the hook5. Note that subject matter jurisdiction and personal jurisdiction are both still required on impleaders (it

must exist between the third-party plaintiff and the third-party defendant) (Supplemental jurisdiction against has a role here)

6. Most courts have held that if venue is proper in the original action, and if there is SMJ, then there is no need to satisfy the venue statute for impleader claims

7. Sentence #9 allows a 3rd defendant to implead a 4th party,………………..8. Defendant cannot implead on a direct claim, however note that once a proper impleader claim has been

asserted, then under Rule 18(a) any additional claims can be asserted9. Rule 14(a) allows but does not require a defendant to bring a third party claim, thus a defendant can make a

tactical choice here on whether to implead or file a separate suit later; why?i. Bringing in a third party may raise disadvantages to defendant (ie if jury knows they have

insurance, more likely to find for plaintiff; also parties may make plaintiff’s cases easier by trying to place blame on each other)

ii. But may also raise advantage if co can implead an individual; jury less likely to find liability if they know an individual has to pay

10. Rule 14(a) provides that a third party may be impleaded without leave of court within 10 days of answering the complaint; after 10 days, impleader requires a motion and approval of the judge

a. Case law holds that he judge has discretion to refuse to allow impleader, or to dismiss a third-party claim already field, if it finds that litigating it along with the main claim would unduly complicate matters, introduce unrelated issues, or delay resolution of the main claim

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b. In most cases, efficiency and consistency will motivated a court to allow the third-party claim11. 3rd party Plaintiff is typically required to serve all former pleadings on the 3rd party defendant upon service of

impleader complaint and summons12. Note contribution become viable until the defendant has actually paid the judgment13. Court still retains authority under Rule 42(b) to order a separate trial of the third party-claim14. Once a party has been properly impleaded, Rule 14(a) allows various other related claims to be asserted;

a. The third party defendant may assert any claims against the plaintiff that arise from the same transaction;

b. Rule also allows plaintiff to assert claims against the third party defendant that meet the same transaction test;

c. Once third party has been brought in, he and the original defendant become opposing parties thus triggering the counterclaim provisions of 13(a) and 13(b)

ii. Paur v. Crookston Marine, Inc1. Facts: Plaintiff’s decedent was killed while riding as a passenger in a boat; boat went out of control, spilling

occupants into water; Boat was owned by University of North Dakota; operated by Lewis Oring, an employee of the University; Plaintiff’s decedent was also an employee of the University

2. Procedure: a. Plaintiff filed complaint alleging that the accident was caused by the defective condition of the boat

motorb. Crookston Marine filed a third-party complaint, naming as third party defendants, Oring and the

University and Lund America (manufacturer of boat), seeking contribution and/or indemnificationc. Lund America has moved to dismiss for failure to state a claim cognizable under Rule 14d. MOTION TO DISMISS DENIED

3. Rule: a. Rule 14 provides that a defendant may join as a third party defendant a person “who is or may be

liable to him for all or part of the plaintiff’s claim against him” – this has been liberally interpreted to allow third party claims to be asserted even though they o not allege the same cause of action or the same theory of liability as the original complaint; thus it is of no consequence that the original complaint made no such allegation

b. Because liability was alleged to be in part or entirely, party is not seeking to pass on liability and therefore the claim is not barred.

h. Necessary and Indispensable Parties – Rule 12 (b)(7)i. Steps:

1. Is Joinder Timely? 2. Is the presence of the party needed for a just adjudication?

a. Rule 19 (a)(1) Is the party one that in whose absence, complete adjudication is not possible?i. Is complete relief possible?

b. Rule 19 (a)(2) Does the missing party have an interest that he will be unable to protect if he is not a party to this case?

i. Rule 19 (a)(2)(i) Would person’s absence impair or impeded he ability to protect that interest

c. Rule 19 (a)(2)(ii) Would the any of the current parties be subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the absent interest (i.e. defendant having to pay twice)?

3. If a needed party, is joinder feasible? Rule 19(a)a. Does the court have Personal Jurisdiction over the party?b. Would joinder destroy SMJ?

i. Does § 1367 help?c. Would joinder raise venues problems?

4. Should the court “in equity and good conscience “ dismiss or proceed – Rule 19(b)a. This prong is at the discretion of the court

i. Extent of prejudices to the present Party’s that the third party’s absence may bringii. Extent that prejudices ma be avoided or reduced by other means

1. Look for any way to alter/tailor relief to existing parties to curtail damagesiii. The adequacy of judgment without the third partyiv. Wither the plaintiff will have an adequate remedy if the case were dismissed for non-joinder

ii. Exceptions: 1. Class actions under Rule 232. Joint tortfeasors

iii. ExamplesPage 5 of 50

1. Haas v. Jefferson National Bank (5 th 1971) - a. Facts: Haas and Gleuck Jointly purchase stock; it is incorrectly placed all in Gleuck’s name; Haas

trying to correct and get his half of the stock, suing only the Bank; Defendant raises a Rule 12(b)(7) defense of failure to join an indispensable party.

b. Holding: Party was indispensable; Case dismissedc. Gloss: Here, §1367 wouldn’t help because this case was joined under Rule 19 of joinder of a

plaintiff; If it had been joinder of a defendant, it could have helped2. Temple v. Synthes Corp. (Supreme Court 1960) -

a. Facts: Design and Manufacturing defects of a medical device; Plaintiff sued manufacturer, but not the doctor or hospital; Defendant raised Rule 12(b)(7) defense

b. Rule: Joint tortfeasors are NEVER indispensable parties; merely a permissive partyi. Each tortfeasor is fully liable for the damages independently; can seek contribution from

each other in an independent suiti. Intervention – Rule 24

i. Steps – Is NOT compulsory 1. Application for Intervention Must be Timely –

a. Factors:i. How long has intervener known of his interest before moving to intervene

ii. Whether the intervener’s delay will prejudice an extant partyiii. Whether denial of the intervention will prejudice the absenteeiv. Unusual circumstances affecting timeliness

2. Would intervention destroy SMJ (diversity jurisdiction)?a. Rule 24 (a) If YES, then intervention is NOT permitted

3. Does the party have Intervention by Right? Rule 24(a) a. NOTE: Party seeking intervention bears the burdenb. Is intervention by right granted by statute?c. Does applicant claim a direct interest in a related transaction (or property) subject to adjudication?

i. If Yes, then either:1. Applicant’s interest isn’t already adequately represented; OR2. Applicant has a direct significantly protectible interest at stake; AND3. Non-intervention will impair or impede party’s ability to protect that interest

4. If NO does the party qualify for permissive intervention? Rule 24(b)a. NOTE: Party seeking intervention bears the burdenb. Is permissive intervention granted by statute?c. Is Applicant’s claim related to the main action by question of law or question of fact?

i. If Yes, then at the court’s discretion 1. Weigh same factors as under Indispensable Parties

ii. Procedural Aspects – Rule 24(c) 1. Party seeking intervention must make a Motion to Intervene2. Motion must:

a. State the grounds for intervention; ANDb. Be accompanied by a pleading describing the claim or defense for which intervention is sought

iii. Atlantis Development Corp. United States (5 th 1967) – Intervention By Right 1. Facts: Two groups conflict over use of off-shore islands and the ownership status thereof, third group has

primary claim to ownership of the islands2. Holding: Intervention by Right Permitted3. Reasoning:

a. This joinder involves a claim to and an interest in the very property and the very transaction which is the subject of the main action

b. The interest is not adequately represented in the case; third party’s interest would be bound by this proceeding and no permitting the intervention would prevent them from adequately defending that interest;

4. Gloss: a. Why wouldn’t a party want to intervene?

i. A plaintiff would want to maintain their right to be the master of their suitii. Complicates the law suit; complicates discovery,…

b. In the alternative, Parties my seek permission to file “amicus curaie” instead of interveningi. Interest does not become a party to the suit

ii. Can submit briefs on issues; doesn’t argueiii. Not bound by the court’s decision

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II. COMPLEX JOINDERa. Introductionb. Interpleader

i. Steps1. Does the court have personal jurisdiction over all litigants?2. Would interpleader destroy diversity?

a. § 1335 authorizes interpleader so long as there is minimal diversityi. Here, § 2361 allows for nationwide service of process for statutory interpleader

ii. All pending or future claims are stayed until outcome of the interpleader litigationb. § 1397 permits venue wherever proper for any one party

3. Is interpleader proper?a. Required if the plaintiff might be subject to double liability

i. Here, Interpleader is proper even if,1. There is no common origin of causes; OR2. The actions are not identical – but are adverse and independent actions

ii. Defendant may also be interplead if he might be held to double liabilityii. Generally

1. Resolves conflicting claims to a tangible res or fund of money2. Is instituted by the stakeholder who is in possession of the res (stake)3. Interpleader allows the stakeholder to force all claimants into a single proceedings

a. Example: Insurance company can force all potential beneficiaries into one suit4. For “pure” interpleader, there must be SMJ over all claims5. For “statutory” interpleader, the court uses § 1335, which is an express grant of interpleader jurisdiction

for federal courts 6. For “rule” interpleader, the stakeholder proceeds to join claims under Rule 22 and gain SMJ via § 13677. Procedure :

a. Stakeholder files the a action and joins the claimantsi. If interpleader is proper, the stakeholder deposits the fund with the court

b. Claimants then litigate ownership of the fundi. Here, most courts recognize a 7th amendment right to a jury trial

c. Class Actions – Rule 23i. Introduction

1. Generallya. In a class action, one or more class representatives are formally joined as parties in the case

i. The members of the group that they represent are not joinder, and thus are not parties, but are bound by the outcome of the litigation

b. Is a practical alternative to Rule 19 joinderc. Designating an action as a “class action” and publicizing as such places the potential members of

the class on notice so that they may join or reserve their rights2. Policy and Ethical Considerations

a. While the process sounds efficient, it also places a huge burden on the court in which it proceeds;

b. Allowing class action where each individual claim would only be $10 actually creates more litigation because no individual would bring such a suit, but they will collectively

c. Places a huge burden on the defendant, especially when plaintiff’s claim is questionabled. Also permits defendants to apply “sweetheart settlements” wherein all persons are bound and the

defendant might get off easier than if individual claims brought3. Constitutional Considerations

a. Smith v. Swormstead – more then 5000 persons who were not joined were bound by a decision regarding the split of the Methodist Church

b. Class actions allows a large number of individuals who are clearly not in the first suit to be bound by the outcome – raises due process concerns

4. Hansberry v. Lee (Supreme Court 1940 – a. Facts: Black family trying to buy house in neighborhood with a racial covenant, in earlier case

held that covenant was good, however D in that case stipulated enough had signed covenant to

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qualify the case as a class action, when was not the reality, also there is a significant question of whether or not the current P was part of a class in the earlier suit

b. Burke v. Kleiman – precedent case – D stipulated that 95% had signed, judge upheld covenant, D loses

c. Holding : First case was not a class litigation and plaintiff were not members of the class for purposes of this suit; Not bound by that judgment, case proceeds

d. Reasoning: i. Plaintiffs in Burke sought to compel performance of the covenant in behalf of themselves

and all other similarly situated; they did not designate the defendants in the suit as a class nor did they seeks any injunction or relief against anyone other than the named defendants

ii. BUT in general, a plaintiff cannot seek to overturn a class decision simply because the asserted number of class members signing onto the case was false; this is insufficient grounds to re-open the suit

iii. Here there are dramatic conflict of interest; There is no identity by the plaintiff here and the parties to the first suit; Wasn’t adequately represented

e. Gloss: Constantly allowing the class suit to be re-opened or allowing new members to not be bound would deny finality and would subject defendant to possibly inconsistent outcomes and could deny subsequent plaintiffs equal relief obtained by initial plaintiffs

ii. Mechanics1. Rule 23

a. Certification 1. Prerequisites for Rule 23(a) Certification– One or More members of the class may

sue or be sued as representatives of the whole, IF:a. Numerosity

i. Class must be so large that joinder is impracticableii. Class must be defined with specificity so that it can be clearly determined

who is in the class and who shall receive any relief obtained as well as the portion of relief to be received by that member

b. Commonality i. There must be a common question of law or fact involved (see joinder)

ii. Acting class representative must have common interest to ensure the due process rights of those who are not represented

c. Typicality i. The representatives of the class must bring a claim that is typical of the other

membersii. Claim can’t be an extraordinary case or have unusual circumstances or

characteristicsd. Adequacy

i. Representatives parties will adequately and fairly protect the class’ interestsii. Goes to the adequacy of counsel for the representatives

1. Usually, the court will require the submission of resumes and will then select lead counsel from among those competing attorneys

2. Requires expertise and a large amount of experiences – large burden3. Counsel must be void of conflicts by being a member of the class

b. Types of Class Actions Maintainable Under Rule 23(b) i. A class action will be maintained if the requirements for certification has been met AND

either:1. (1) Separate actions by individual members would create a risk of

i. Inconsistent or Varying Outcomes / awards; 1. Requires Mutually Exclusive Outcomes; not reconcilable or compatible

ii. OR - Impeding or Impairing the rights of others1. e.g. the last to sue would get no recovery because of insolvency

iii. Certification under this section (Rule 23(b)(1) is all or none – either all class members are bound or none are) (members are not allowed to opt out)

2. (2) Opposing party has acted similarly adverse to the entire class a. Certification under this section - Rule 23(b)(2) - is all or noneb. Injunctive Reliefc. Typically used for civil rights legislation where parties are seeking a general

injunction equally against or for all members of the class3. (3) The court finds that

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a. NOTE; here the certification permits members of the class to opt out and bring their claims individually; Typically used to obtain DAMAGES

b. The facts common to the class are predominate over the fact specific to each individual; AND

c. A class action would be the best way for fair and efficient adjudication i. Factors here are as follows under Rule 23(3)

(A) Interest of members to individually control their own cases (B) Extent and nature of the litigation involved (C) Desirability of concentrating the litigation in a particular form (D) Difficulties likely to be encounters in managing the class action (e.g.

expenses, long and prolonged discovery…)ii. NOTE : Certification as a 23(b)(3) class is the most problematic because each of the claims

may be independently valid; 1. 23(b)(3) is also more problematic because members of the class may opt out and

thereby not be bound by the judgment; nor can they receive any benefits from the suit2. Also difficult because each member may have distinct damages or separate damages

considerationsc. Maintaining the Class Action Requires – Rule 23(c)

i. NOTE : Party seeking certification as a class bears all costs of notice and maintaining the suitii. Certification – Rule 23(c)(1)

1. Determination of certification shall be made as soon as practically possible2. Certification maybe conditional, and may be later altered or amended, before a

decision is made on the meritsiii. Notice to Class Members – Rule 23(c)(2)

1. The court shall determine the best method of notifying the class members2. Notice must be sent to all members with readily available address (Mullane)3. Notice MUST advise each member that:

a. (A) The court will exclude the member from the class upon a member’s request (before the specified date); AND

b. (B) The judgment will include and bind all members who do not opt out; ANDc. (C) Any member who does not request exclusion may enter an appearance

through counseld. Additional Maintenance Concerns

i. Discovery is limited to those representative members and does not include all memberse. Court’s Role in Dismissal and Settlement - Rule 23(e)

i. To dismiss or settle a class action, the parties must:1. Obtain the court’s approval; AND2. Give notice to all class members

ii. ASIDE : In DC, if a class action is voluntarily dismissed, the plaintiffs must pay the defense’s attorney’s fees

f. Appeals Rule - 23(f) i. Court of appeals may permit an interlockatory appeal from a district court order granting to

denying class certificationii. Time: Application for appeal must be made within 10 days after entry of the order

iii. Stay of Proceedings: An appeal DOES NOT stay the district court proceedings, UNLESS ordered by either:

1. The district court judge2. The court of appeals

iii. Jurisdiction1. Subject Matter Jurisdiction

a. Diversity i. Diversity is only required with respect to the representative parties

1. Then under § 1367 supplemental jurisdiction extends to the members of the classii. Supreme Tribe of Ben-Hur v. Cauble - class challenged a decision by a fraternal benefits

organization to reorganize and reduce benefits for its 70,000 members; Non-Indiana members of the tribe sued purporting to represent the whole; Supreme court held that even though the Indiana members could not have been joinder to the first case (diversity jurisdiction), they were still bound by the outcome

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1. Court: Held that you should look only to the representative parties when determining diversity jurisdiction over the claim; Then § 1367 provides supplemental jurisdiction to the remainder of the class

b. Amount in Controversy i. Zahn v. International Paper Co. (Supreme Court 1973)

1. Every member of the class must individually satisfy the amount in controversy requirement;

ii. Free v. Abbot Laboratories (5 th 1995) - 1. Facts: Price fixing case; each claimant was limited to $20,000 in damages;2. Holding: Permitted suit by allowing representative parties to seek attorney’s fees, which

raised amount above $75,0003. Rule:

a. § 1367 DOES NOT OVERRULE Zahnb. Every member of the class must still individually satisfy the amount in

controversy requirement4. Gloss: By making each member of the class satisfy the amount in controversy

requirement, the court makes it VERY difficult to bring a class action in federal court absent SMJ by federal question

a. Some have argued against this finding on these grounds by saying we should look to the intent to § 1367 and extend SMJ; otherwise, this effectively closes the federal court door on consumer class action suits

2. Personal Jurisdiction a. Must have PJ over the defendantb. Must have PJ over a “defendant class”c. BUT, So long as notice sent and given “opt out” choice, PJ over “plaintiff class” is established

i. Plaintiffs, by entering into the class usually consent to personal jurisdiction – low burden to meet

ii. Personal jurisdiction typically permitted because the representative parties represent out of jurisdiction interests

d. Phillips Petroleum v. Shutts (1985) – i. Class contained over 28,000 members; 3 representatives; brought in Kansas state court and

only 1,000 members were Kansas residents; 27,000 didn’t have minimum contactsii. Held : Purpose of minimum contacts test is to protect the defendant; The plaintiff have

chosen the forum and are not being hauled into court; 1. Unlike the defendant, an absent class action plaintiff does not have to do anything and

plaintiff can “opt out”; 2. Where notice has been sent by first-class mail to each member, with an

explanation of the option to “opt out”, due process requirements have been satisfied

3. Holding Limited to “plaintiff class actions” seeking damages a. Court refused to comment on claims seeking equitable reliefb. Also does not address “defendant class actions”

III. TRIAL PROCEDURE AND CHRONOLOGYa. Make a demand for a juryb. Pre-trial Conference – draft and propose jury instructionsc. Discovery – Three stagesd. If have a right to a jury, Select jury in Voir Dire from the Veniree. Opening Statements; P goes firstf. Possible D motion for directed verdict or as a matter of lawg. D’s opening statement

i. BUT most will delay until the close of the plaintiff’s caseh. P’s case in chief, presentation of evidencei. Possible D motion for directed verdict or as a matter of lawj. D’s Chief Case, affirmative defense, or defeat an element of P’s claimk. P may move for directed verdict or judgment as a matter of awl. P may present rebuttal evidencem. D may then rebutn. Closing Arguments (D goes first)o. Another round of MDV/JML motions by either party

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i. Required to move at close of evidence to preserve renewal JNOVp. Jury Instructions

i. Must object under Rule 51, or is waivedq. Jury Verdictr. Judge Enters judgment on the verdicts. JNOV / New Trial / Other 10 day motionst. Appeal within 30 daysu. Rule 60 Final Judgmentv. Res Judicata and Collateral Estoppel

IV. DISCOVERING THE FACTSa. Introduction

i. Discovery is the gathering of facts and evidence under the rules of civil procedure to help flesh out generally pleaded claims and defenses, test them by appropriate pre-trial motions, make informed judgments about settlement, and try the lawsuit should such motions or settlement efforts fail.

ii. 40% of cases have no discoveryiii. In other cases, discovery accounts for 50% of litigating expenses

b. Informal Discoveryi. Generally

1. Informal investigation – collecting fact on an attorney’s own, outside the federal rules and prior to the commencement of a lawsuit;

2. Factual investigation doesn’t have to wait for a complaint to be filed;a. Prior to filing a complaint, the attorney must make a “inquiry reasonable under the

circumstances” and must certify the validity of complaintb. Failure to do so, or filing a complaint without a reasonable inquiry or a evidentiary basis can

lead to Rule 11 sanctions (written material only)ii. Ethical Considerations:

1. Most courts have held that RPC 4.2 does not prohibit communications with former employees; but others disagree; Information that the employer communicated to the employee may be off limits because it may be subject to the attorney-client privilege between the employer and their attorneys;

2. Tape Recording, and other means of taking statements – some states criminalize unconsented tape recording of telephone conversations with prior court order; others do not however

a. Board of Bar Overseers did agree with some jurisdictions in finding that unconsented recording offends a sense of “honor” and “fair play”.

3. Federal rules do not address potential conflicts of an attorney questioning a person who may be a party to a suit or who is employed by a potential party to the suit; but state and local rules (also ethical rules) may govern here;

a. Rule 4.2. Rules of Professional Conduct may offer guidance: i. In representing a client, a lawyer shall not communicate about the subject of representation

with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so

ii. BUT these rules are only the minimal standards and are not given statutory effect1. Lawyers in this similar position should do three things:

a. Have someone else conduct the investigation (PI, assistant); OR:b. Identify themselves to the prospective defendantc. Advise the prospective defendant that they represent the prospective plaintiff,

andd. Communication with the prospective defendant in writing only, with no oral

response being receivedb. Gaylord v. Homemakers of Montgomery, Inc. (Supreme Court 1996)

i. Facts: Plaintiff alleges that she was burned when caretaker of defendant was giving her a bath; Plaintiff’s attorney telephoned Ms. Taylor (employee of Oxford, not named as a party) and recorded the conversation without her knowledge; Taylor told attorney repeatedly that she could not discuss the situation,…

ii. Holding: Reversed, communication was allowediii. Rules:

1. Rules do not require an attorney to file an action at law before communicating with the person with whom the attorney’s client has a dispute

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2. Rule 4.2 applies only to communications with a party and then only when the attorney knows that the party is represented by another attorney

3. Here because 4.3 uses “should have known”, 4.2 must mean “actual knowledge” onlyiv. Gloss: Statutory Interpretation requires that you look to commentary and legislative intent,

then to the purpose of the rule (behavior designed to address, spirit of the rule), then look to other provisions within the statute

c. Formal Discoveryi. Generally

1. Required disclosures, forced by Rule 26(a) a. Required to disclose (without waiting for any forma requests), information relevant to disputed

facts in the pleadings, including names, addresses, and telephone numbers of fact witnesses, copies or descriptions of documents, and materials underlying computations of damages… provide basic information needed to make informed decisions regarding settlements

2. Discretionary discovery a. Using depositions, interrogatories, document production requests, physical and mental

examinations, and requests for admissionsii. Required Initial Disclosures – Rule 26(a)

1. (1) Initial Disclosure: A party must provide (without waiting for a request) a. (A) People (name address, phone, subject matter) likely to have discoverable information that

the disclosing party may us to support claims or defensesi. Regarding who must be identified, this class will be dependent upon the nature of the case

1. Ordinary cases – all percipient witnesses to the transaction in which the plaintiff’s claims have the genesis

2. Product Liability – all individuals in affiliation with the defendant who possess knowledge relevant to a resolution of the factual disputes inherent in the allegation that a product was defectively designed and/or manufactured, and the defenses asserted to those allegations, including all persons who “at the time pertinent to the development and manufacture of the product” were “employees, agents, individual contractors, etc., of the defendant”

b. (B) Relevant documents, data, and tangible things that are in the possession, custody, or control of the party, and that the disclosing party may us to support claims or defenses

c. (C) Materials form which computations of damages arosed. (D) Insurance agreements which may indemnifye. (E) Exceptions for specific types of cases (usually with the government)

2. EXCEPTIONS: 1. where the parties stipulate otherwise 2. the court orders otherwise3. Timing of Disclosures

a. Must be made within 14 days after the meeting of the parties under Rule 26(f)i. This can range from 84 or 113 days into suit, depending upon date of conference

b. Different time may be set by stipulation of partiesc. If a party objects to initial disclosures, the court set the time for disclosure after deciding on the

objectiond. If a party is served or joined after the 26(f) conference, initial disclosures must be made within

30 days after being served or joined4. All reasonable disclosures must be made; It is not an excuse that:

a. Investigations are not complete; ORb. Opponent’s discovery is insufficient; ORc. Opponents failed to submit discovery at all

5. (2) Required Disclosures Regarding Expert Witnesses Expected to Testify at Trial a. Requires parties to disclose the identity of each testifying expert b. To provide a written report, signed by the expert, of all opinions that may by presented at trialc. The basis for all opinions, d. Data and information upon which the opinions are basede. Exhibits to be used to support the opinionf. Qualifications, including all publications for past 10 yearsg. Compensation she is being paidh. Listing of other cases in which she has testified either at trial or in deposition

6. (4) Form of Disclosures a. All disclosures MUST be:

i. In writing; ANDii. Signed; AND

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iii. Served; ANDiv. Promptly filed in Court

7. (5) Provides Tools and Grants Permission for Discretionary Discovery 8. Sanctions

a. Typically is either contempt, punishment, or preclusion from using the information i. I.e. Court won’t allow use of withheld mandatory info at trial

iii. Rule 26(f) Conference – Meeting of Parties 1. Parties must confer and make a plan for discover between themselves

a. Timing tricky to calculate2. Plan – must disclose info about people who have info disclosing party may use in court

a. Negotiate what is necessary to disclose, scopeb. Set schedule for discoveryc. Generally puts larger burden on D than P

iv. Rule 26(g) Signing of Disclosures, Requests, Responses, and Objections 1. Only requires the attorney to attest to the completeness of a production, not to its truthfulness when

answered by a party (that burden is on the party)2. (1) Certification of Disclosures

a. All MUST be signed by at least one attorney to be validb. Signature is certification that to the best of his knowledge, information, and belief (formed after

a reasonable inquiry), the disclosure is complete and correct (as of the time it was made)3. (2) Certification of Discovery Requests, Responses, or Objections

a. All MUST be signed by at least one attorney to be validb. Signature is certification that to the best of his knowledge, information, and belief (formed after

a reasonable inquiry), the request, response, or objection is:i. Consistent with good faith and existing law (or arguable extension);

ii. Has a Proper Purposeiii. Is not unreasonable or unduly burdensome or expensive when considering:

1. Needs of the case; AND2. Discovery already obtained in the case; AND3. Amount in Controversy; AND4. Importance of issues at stake

c. AN UNSIGNED REQUEST, RESPONSE, OR OBJECTION WILL BE STRICKEN i. A party does not have to respond to an unsigned request

v. Discretionary Discovery 1. Rule 26(a)(5) and (d) - After required disclosures, a party is free to pursue discretionary discovery by

any method in any sequence a. Order

i. Required Discoveryii. Interrogatories – cheap, forms available

iii. Document requestiv. Depositions – secondary witnessesv. Deposition primary

vi. Depositions of parties2. Making Discovery Requests

a. Failure to produce documents in response to either an oral request or an incorrect production request does not give rise to sanctionsi. NOTE: oral request can be made valid by agreement of parties, but is rarely done.

3. Depositions – Rule 30, 31, Rule 45 (subpoenas)a. Generally

i. Subpoena Duces Tecum requires deposed individual to produce any related documentsii. See Notice of Deposition (A 58) and Subpoena (A 59)

iii. May be made without leave of court anytime after 30 days from a parties’ receipt of the complaint and summons

b. Procedure for Obtaining a Deposition – i. Serving a notice of the time and place of a deposition on a non-institutional party-

deponent, with copies to the other parties to the action, is normally sufficient1. Notice must specify the method of recording the deposition (typically court reporter)

ii. Rule 45(a)(2) and (b)(2) – For non parties, a subpoena must be issued by the federal court for the district where the deposition is to be taken

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1. NOTE – unlike a party, a nonparty is not within the personal jurisdiction of the court or subject to its discovery rules until and unless he too is served with process

2. Process for Non-Parties:a. Open “misc. docket” in that state and have that court issue a subpoenab. Then you Must hold the deposition within 100 miles of that courthouse

iii. Deposing the Corporate or Institutional Witness - Rule 30(b)(5) 1. Send notice to the corporation or institution who must then appoint a deponent

knowledgeable about those matters to testify on its behalf—c. Format and Procedure of a Deposition

i. Depositions are usually held in the discoverer’s officeii. Third party persons are NOT permitted to be present absent agreement of the parties

iii. All statements are recorded by court reporter/stenographeriv. Deposition expenses are paid by the party doing the deposing:

1. Court reported, transcripts (paid by party requesting),…v. Two Types of Deposition:

1. Oral deposition is simply the live examination of a witness under oath outside the presence of the judge

2. Deposition on written questions differs only in that the questions are served on the deponent in advance and then read to him by the court reporter at the deposition; answers are then live and under oath ---- Rule 31

vi. Two Uses for Depositions: 1. Discovery Depositions – used purely for discovery purposes; helps to build the record

and to give counsel an idea of what information the witness knows; witness will testify again, live, at trial

a. Here the used of the deposition is limited (see below)2. Depositions Serving as Trial Testimony – Used when a witness cannot attend trial and

need to get their statement on record or before the jury; Is read to the jury at trial; a. Here the deposition IS generally admissible at trial

d. Objections at Depositions i. Form of the Objection

1. Rule 30(d)(1) cautions that objections “shall be stated concisely and in a non-argumentative and non-suggestive manner” and limits the circumstances in which a party may instruct a deponent no to answer

2. Model Rules of Professional Responsibility 3.4(a) & (d) proscribe that “unlawfully obstructing another party’s access to evidence” or “failing o make reasonably diligent effort to comply with a legally proper discovery request of an opposing party”

3. BUT it is generally more a matter of etiquette and less of rules because violations are minor and are usually tit for tat (on both sides); a number of jurisdictions have adopted voluntary standards for “civility” in professional conduct

ii. Most evidentiary objections are preserved until trial and need not be made at the deposition ---Rule 32(d)(3)(A)

1. BUT some are not preserved, See Rule 32 (d)(3)(B) – a. I.e., objections which can be cured by simply reforming the questions

2. BUT If a deponent answers after an objection that the question calls for privileged communication, he effectively loses the protection—not preserved

iii. Once an objections has been made and noted on the record, the deponent must answer1. EXCEPT: A party therefore may refuse to answer on grounds of privilege

e. Using the Depositions At Trial i. Some are taken strictly for discovery purposes, wherein the witness will testify at trials and

the deposition is only a previewii. Others are taken as a substitute for live testimony because witness will be unavailable at trial

1. If deposition is used at trial, poses a two-leveled evidentiary problems:a. A deposition is hearsay, an out-of-court statement offered as truth b. Then court must address the ancillary evidentiary issues such as whether the

content of the deposition qualify as admissible evidence2. FRE 801(d) provides a statement is admissible against a party if it was made by a

person authorized by the party to make a statement on the subject or by the party’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the agency

iii. Rule 32(a) therefore permits a admission of a deposition at trial, only

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1. Against any party who was represented at the deposition or had reasonable notice of it; OR

2. For impeaching the deponent as a witness at trial or hearing; OR3. As an admission by a party-deponent or the institutional party for whom the deponent

was an office, director, managing agent, or designated deponent; OR4. When the deponent is unavailable by reason of death, illness, infirmity, or location

beyond the range of trial subpoena4. Interrogatories – Rule 33

a. Only applies to parties to the action; not to witnesses or the parties’ counseli. AND ONLY a party can answer the interrogatory, NOT the attorney

b. Responding party must then respond or object within 30 days;i. Requires written answers under oath in response to the request

ii. Parties must respond or produce any information that they possess or that is within their control – sometimes includes things that the attorney has

1. This may permit a party to discover facts contained in work product documents by directing interrogatories to the party on whose behalf it was prepared

2. This is permitted whereas “work product” is not permitted because going through the client prevents the difficulty of getting into the mind of the attorney, or creating conflict of being a witness

iii. Typically, the lawyers prepare the answers after reasonable inquiry (Rule 26(g) certification requirement) - Makes interrogatories inexpensive, but also makes them less effective

iv. If the burden is the same on the requesting party and the producing party, then the respondent can simply give the location of the information and force the requestor to search it;

1. BUT in practice few companies want opposing counsel rummaging through their business files…

c. Timing for Response:i. Responding party must then respond or object within 30 days;

ii. BUT, Rule 33(c) allows the court to postpone the time for answering contention interrogatories until sufficient discovery has been made to allow for a complete answers

d. Format: i. Typically provides a list of definitions to prevent the opposing party from narrowing

the scope of the question to elude answering1. Document : any writing, drawing, graph, chart, photograph, computer file, or other

data compilation from which information can be obtained, translated, if necessary, by the person answering these interrogatories through detection devices into reasonably usable form; a draft or non-identical copy is separate document within the meaning of this term

2. Identify (with respect to persons) : Identify means to give, to the extent known, the person’s full name, present or last known address, home telephone, present or last known place of employment, and business telephone;

ii. There is a numerical limit of 25 interrogatories, including subparts 1. A party wanting more, MUST seek leave of court

iii. Some lawyers may adopt “pattern interrogatories” for certain claims, these can be very longer and very burdensome to the answering sign

e. OBJECTIONS and Procedure– Rule 33(b)(4)i. Justifications for Objections

1. Rule 26(b)(2) & (c) - “undue burden or expense” clearly recognized as a limit of discovery under, and also typically recognized as a valid objection

2. No pure legal disclosures, i.e. can’t request opposing party to research the law for you; no pure legal conclusions not applied to facts of case

a. BUT Rule 33(c) - an interrogatory is not objectionable simply because it calls for “an opinion or contention that relates to fact or the application of law to fact”— these are contention interrogatories

3. Production does not waive objection as to admissibility, EXCEPT regarding privileged information

ii. Procedurally 1. Must be enough specificity for court to determine if objection well-taken2. Must lay foundation - don't respond3. Must be in writing, with the grounds stated, and signed by the party’s lawyer

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4. Then opposition moves to compel disclosure5. Arguments from both sides 6. Judge rules

f. Using Interrogatoriesi. Production does not waive objection as to admissibility, EXCEPT regarding privileged

informationii. Interrogatories are admissible at trial for evidentiary support or for admissions

1. This is not a binding admissionvi. Production of Documents and Things – Rule 34

1. Procedure for Requests for Documents a. Simply have to describe “with particularity” the document or category of documents you

see and then serve the request on a party, with copies to all other partiesb. Party must then respond or object in writing within 30 days, unless parties have

stipulated to a different time.c. There is not a numerical limit on the number of requests that can be made

2. Scope of Producing Party’s Obligation and Format of Production a. Rule 34(a) targets documents and things “in the possession, custody, or control of the

party upon whom the request is served”; this information in the control of your agents or attorneys is clearly within the parties control; also required to make reasonable inquiry and must certify production response

b. Rule 34(b), requires production of materials “as they are kept in the usual course of business” or to “organize and label them to correspond with the categories in the request” ---- i.e. can’t burry documents in wrong files or with other irrelevant materials

3. Destruction of Documents – a. Rule 26(g) in spirit, though not expressly prohibits the destruction of documents in an

effort to avoid discoverya. BUT, 26(g) ONLY applies after a request has been made, so if done before

request, don’t technically have to reveal, BUT NOT GOODb. An interrogatory or a deposition will typically bring light to such actions and can be used

at trial (on certain situations), so not a good ideac. ABA Model Rules prohibits the attorney from altering or destroying documents or

materials having potential evidentiary value or from assisting another in doing such an act

4. OBJECTIONS to Production of Documents and Thingsa. Only way to avoid production is if it is privileged under attorney-client privilege or work-

product under Rule 26(b)(5)vii. Medical Examination – Rule 35

1. Generally a. Typically, if a plaintiff is claiming only physical injuries, mental exams are not allowed;

If claiming emotional distress or similar, mental exams allowedb. Also, the rule makes it clear that examinations are not available against mere witnesses

outside the custody or control of the parties i. Thus it would seem that this is not available against spouses when a party is claiming

injuries on their behalf; but it would be available against kidsc. NOTE: the rules and standards for Examination are more narrow than Rule 26(b) and

when a court is examining a motion to compel or an objection regarding examination requests, these more narrow guides are the rule

d. In resisting an examination, Can ask for a protective order until opposing party has made better case for needing information

2. You MUST obtain a court order for a physical or mental examination:a. Procedure Under Rule 35(a)

i. Obtain a court order (by motion) - Requires:1. Show good cause for the physical or mental examination2. Shown that it is a material matter in controversy

a. “Condition in controversy” is construed narrowly to mean only those for which plaintiff seeks recovery

ii. Then, Must Give Notice to All Parties, specifying:1. Examiner2. Time and place of Exam3. Scope of the Examination

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3. Using the Examination Report under Rule 35a. An adverse party may request a report of the examination, including the results of all tests

made on him—i. Examined party received NO other compensation

b. He also waives the physician-patient privilege regarding the testimony of the examining physician

c. Parties may agree to amend these rules4. Sacramona v. Bridgestone / Firestone. Inc. (Mass 1993) – Physical Examinations

a. Facts: Defendant filed motion to compel plaintiff to submit to a blood test because plaintiff was claiming future lost earnings; Plaintiff’s claimed injury was from an exploding tire, which typically causes eye injuries etc.; Defendant requested physical examination, claiming that plaintiff put their life expectancy at issue because they used it to calculate future lost earnings

b. Holding: Motion to compel is denied; Connection too attenuated, would open to door to examination in every case; not relevant

c. Rules: i. Discovery is therefore “if these is any possibility that the information sought may be

relevant to the subject matter of the action”ii. Under Rule 26(b)(1)(iii) the court may limit the scope of relevant discovery if such

discovery is “disproportionate to the individual lawsuit as measured by such matters as its nature and complexity” and the importance of the issues at stake

iii. Rule 35 court may order a physical examination when the physical condition of a party is “in controversy” and “good cause” is shown—moving party carries the burden

viii. Requests for Admissions 1. Generally

a. These are allowed in an effort to narrow the issues for trialb. See Form 25 – c. Requester may request that a party admit or deny the truth of statements put in the request

or the authenticity of documents attached to it d. Mainly, Rule 36, and requests for admissions are useful for task of authenticating

documents which requester expects to offer into evidence2. Procedure – Rule 36(a)

a. After a request for admission has been made, the responding party MUST respond within 30 days of the request for admission, or else a party is considered to admit the allegation

b. If an objection is made, the reasons shall be stated in detailc. A party MAY NOT give a “lack of knowledge and information” as a reason for not

answering a request, unless:i. The party has made a reasonable inquiry; AND

ii. There is not enough information to enable the party to admit or denyd. The Court may order a party to respond

3. Effect of an Admission Rule 36(b) – a. An admission conclusively establishes, for the purposes of the particular case, the

matter admitted; this means the fact finder takes it as a giveni. BUT, doesn’t work as great, ambiguities in evidence almost always enable the

responding party to deny the truth of such ultimate contentions in the case without offending the rule

b. Admissions are effective only in the pending suit (no res judicata)c. Amendments:

i. May be permitted on a showing that the “presentation of the merits of the action will be subserved” and if the opposing party cannot show that he will be prejudiced

ix. Pretrial Proceedings 1. Pretrial Disclosures – Rule 26(a)(3)

a. For any evidence to be used at trial, a party shall disclose and promptly file with the court: i. (A) Name, Address, Phone of each witness and the subject matter of their testimony,

separately indicating which may appear at trial and which will notii. (B) Designation of witnesses whose testimony is expected to be taken by deposition

iii. (C) Appropriate Identification of each document and exhibit, and summaries of evidenceb. Timing of Pretrial Disclosure – Rule 26(a)(3)(D)

i. Must be made at least 30 days before trialPage 17 of 50

ii. Within 14 days after pretrial disclosures are made, an opposing party may file a list disclosing:

1. (i) any objections to the use of certain depositions2. (ii) any objections to admissibility of materials

a. NOTE, IF THIS OBJECTION ISN’T MADE, IT IS WAIVEDc. Objections to Evidence Under Pre-trail Disclosure

i. If objections are not made within the 14 days after pre-trial disclosure, they are WAIVED, unless excused for good cause

d. (4) Form of Disclosures i. All disclosures MUST be:

1. In writing; AND2. Signed; AND3. Served; AND4. Promptly filed in Court

2. Pretrial Conferences and Ordersa. Rule 26(f) requires the parties to meet to prepare a discovery plan

i. Must meet at least 21 days before scheduling a Rule 16(b) conference or orderii. Parties shall consider:

1. Nature and Basis of their claims2. Their Defenses3. Possibilities for a prompt settlement4. Create a Discovery Plan:

a. Plan must indicate: i. (1)What changes should be made RE timing, format, or requirement for

required disclosures, including a statement as to when required disclosures will be or were made

ii. (2) Subjects on which discovery may be needed, when should be completed, and whether should be conducted in phases or limited to particular issues

iii. (3) What changes should be made to limits imposed under the FRCPiv. (4) Any other orders (protective) that should be entered by the court

iii. Attorneys are each responsible for arranging and being present or represented at the meeting

iv. Attorneys are also each responsible for 1. Attempting in good faith to agree on the proposed discovery plan; AND 2. For submitting the discovery plan to the court within 14 days after the meeting in

written formv. A court may order that the parties/attorneys attend the conference in person

vi. Court may amend the time between the 26(f) conference and the 16(b) conference; OR court may amend rule regarding the submission of the written plan {see rule}

d. Scope Of Discovery1. Generally

a. Federal Rule 26(b)(1) is generous:i. Authorizes discovery of “any matter, not privileged, which is relevant to the claim or

defense of any party” that “appears reasonably calculated to lead to the discovery of admissible facts”

1. This is true even if the evidence would be inadmissible at trial; 2. New discovery rules includes all email transactions and communications3. Discovery is more broad than the FRE and is not limited to admissible evidence

a. Producing evidence in response to a valid discovery request generally does not waive any objection the producer has to admission of such evidence (unless evidence is privileged)

b. F.R.E. 407 – Subsequent Remedial Measures i. Evidence regarding subsequent design corrections or repairs are not

admissible in courtii. Is inadmissible for showing liability, but can be admitted for other purposes

(i.e. showing ownership,…)iii. Theory is that admitting would amount to an admittance of liability and

would “chill” companies from making products safer for consumersiv. BUT MATERIAL IS DISCOVERABLE

b. There is a virtual presumption of discoverability; Page 18 of 50

c. Admissible or Inadmissible If Reasonably Calculated to Lead to Admissible Facts… i. Requires material to be reasonably calculated to lead to the discovery of admissible evidence

(might form a link in a chain of discovery that could lead to admissible evidence)ii. Producing evidence in response to a valid discovery request generally does not waive any

objection the producer has to admission of such evidence (unless evidence is privileged)2. Objections to Discovery

i. Can’t silently object however, can withhold, but must make a written objectionsii. Rule 26(b)(5) - When a party wishes to resist discovery by invoking a privilege, must

a. Make the claim expressly in writing AND b. “Describe the nature of the documents, communications, or things not

produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection”

c. FAILURE TO LAY THE FOUNDATION FOR AN OBJECTION RESULTS IN WAIVER OF THAT OBJECTION

b. Rule 26(c) Protective Orders – 1. Generally

a. Most business “confidential” documents are not privileged, they may be sensitive, but not necessarily qualified for protective order

2. Procedure for Requesting a Protective Ordera. Party seeking protection Order Must:

i. Make a Motion for protectionii. Must be a showing of Good Cause

iii. Provide certification the party made a good faith effort to settle the matter without intervention of the court

b. Court may make any order which justice requires to protect any party from i. Annoyance, or Embarrassment, or Oppression,

ii. OR Undue Burden of Expensec. Then Courts may either: [See Rule 26(c)(1)-(8) for other options][see below]

i. (1) Deny the discovery request (or make material immune from discovery)ii. Seal the matter, meaning that it is discoverable, but only certain parties may

view the materialiii. Set other special limitations on revelations of such material

3. Crafting Protective Orders Under Rule 26(c)(1)-(8)a. Presumption towards openness- keep it as narrow as strictly necessary to protect

parties’ privacyb. Court balances the hardships in deciding how much to protect—c. Rule itself provides for a range of protections;

i. Court may limit disclosure to plaintiff’s counsel alone - Typically used in cases of product liability;

ii. Umbrella protective order – forbids the discoveror from disclosing to others any information that the producing party designates as “confidential”---more extreme, often sought by commercial litigants

iii. Supreme court held that rule authorizing protective orders do not occasion First Amendment scrutiny, in part because discovery docs are not public record and litigants have no rights of access to such information

iv. Sometimes protection has been afforded for privacy matters (membership lists…)

3. Privileged Materialsa. Privileged information is not within the scope of discovery

i. Must make an express objection under Rule 26(b)(5)b. Such information is usually a communication made in confidence during the court and in

furtherance of a relationship (lawyer-client, doctor-patient, priest-penitent) which society has chosen to promote and protect

c. Such information is excluded because their disclosure is inimical to a principle or relationship that society deems worthy of preserving and fostering

d. Attorney-Client Privilege - United States v. United Shoe Machinery Corp. i. Generally

1. The lawyer client privilege applies only to the communications between the lawyer and the client and not to the facts that are communicated

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2. If this means that all communications between corporate employees at every level and the corporate counsel are protected by the privilege if they otherwise meet the requirements for the privilege

a. Supreme Court struck down the practice of limiting the privilege to communications made by and to a “control group” of employees in a position to control or take a substantial part in deciding corporate action in response to legal advise

ii. Steps and Procedure for Claiming Attorney Client Privilege 1. Privilege applies only if :

a. The asserted holder of the privilege is or sought to become a clientb. The person to whom the communication was made

i. Is a member of the bar of a court, or his subordinate ANDii. In connection with the communication is acting as a lawyer

2. AND, The communication relates to a fact of which the attorney was informed a. By his clientb. Without the presence of strangersc. For the purpose of securing primarily either

i. Opinion on law ORii. Legal services OR

iii. Some assistance in some legal proceedingd. AND not for the purpose of committing a crime or tort;

3. AND the privilege has been a. Claimed (in writing specifying grounds for privilege) ANDb. Not waived by the client

4. ASIDE (Hickman v. Taylor) - Attorney client privilege does not extend to (these fall under work product):

a. Information that an attorney gathers from a witness while acting for his client;b. Memos, briefs, communications, or other writing prepared by counsel or his

own use in prosecuting his client’s case; c. Writings of an attorney’s mental impressions, conclusion, opinions, or legal

theories e. Work Product Protection – Rule 26(b)(3) Trial Preparation

i. Rules 1. An attempt to secure production so written statements and mental impressions

contained in the files and mind of an attorney which are prepared in anticipation of litigation are not to be granted

a. Often labeling of documents as “Work Product” is only some evidence2. Rule 26 (b)(3) - EXCEPTION :

a. Production may be justified where a party can show:i. Substantial need of the materials in the preparation of the party’s case

- Must show that prohibition of discovery will prejudice caseii. AND that he “is unable without undue hardship to obtain the substantial

equivalent of the materials by other means” b. BURDEN rests on the one who would invade that privacy to establish adequate

reasons to justify production through a subpoena or court order; In support of motion to compel, must show:

3. WITHOUT EXCEPTION – (even under showing of need and hardship) a. Protection is always afforded to all mental impressions, conclusions,

opinions, or legal theories of any attorney or other representative of a party concerning the litigation

b. This is to be distinguished from the facts included in such an opinion, which are discoverablei. Opinion Work Product - not generally discoverable

- Some courts say require even greater showing of need to get opinion WP ii. Fact Work Product - more likely to be discoverable

- I.e. attorney memos and notes v. tape recordings or audio tapes of an interview with a witness (there is no sorting of the facts by the attorney; subjective v. objective view of the information)

ii. Generally

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1. For public policy reasons, it is essential that counsel be able to proceed in developing a case and legal theories without fear of mental intrusion from opposition;

2. Rationale:a. The sifting of what is relevant reveals impressions and focus of other counsel; an

attorney’s thoughts must be his own;b. No free rides; Must do your own work, can’t just mooch off of anotherc. Don’t want to create a situation wherein an attorney must act as a witness

(confuses jury, affects attorney’s credibility)d. Chilling Effect of representations – wouldn’t put things in writing

3. Prepared in anticipation of litigation or for trial: a. Litigation : includes any adversary court or administrative proceeding,

including a civil action, criminal case, grand jury proceeding, and administrative hearing

b. Anticipation of litigation – litigation should be anticipated any time a substantial personal injury or property loss is incurred; but if this is enough, then almost all documents prepared after an event would qualify as work product - a complaint need not have been filedi. Specific Claim Approach (some Courts)

1. Requires a showing that the documents have been prepared with a specific claim supported by concrete facts which would likely lead to litigation in mind;

2. Can be evidenced by a certain demand by potential opposing party;3. Some courts also require a showing of substantial probability that

litigation will occur and that commencement is imminentii. Ad Hoc Approach (some Courts)

1. Some courts find specific claim approach to be too narrow and therefore decide “in anticipation of litigation” using existence of a specific claim as only one factor to be considered;

iii. Common Factor: Primary Motivation 1. In either of above approaches, primary motivation for preparing work

must be to assist in preparation for litigation; 2. Shown by circumstantial evidence such as how document is labeled,

whether there are comments on litigation, whether it has an ordinary business purpose,…

iii. Hickman v. Taylor (Supreme Court 1947) - 1. Facts: Ship sank while helping to tow a car of railroad; Tug owners employed counsel

(Fortenbaugh) to defend them; Fort privately interviewed survivors and took statements in anticipation of litigation; One year later, after suit brought on behalf of deceased, plaintiff’s filed 39 interrogatories inquiring as to any statements taken in connection with the towing; Tug Owners claim the statements taken were privileged

2. Holding: Information was “Work Product” and thus not discoverable3. Note: The information was not protected by attorney client privilege because it was

between attorney and a third partyiv. Examples and Applications –

1. An attorney can’t gain privilege simply by labeling as “work product” – is only some evidence2. Simply that a document might e helpful in preparing for litigation is not sufficient to protect it; 3. If a document is typically and routinely prepared for business purposes, then is not protected4. Protection denied if primary purpose of preparation is to carry out ordinary business of company/client 5. When a party is required by law to prepare a document, it is not in anticipation of litigation6. Most courts have also denied protection of routine accident reports;

f. Experts & Expert Work Product– i. Expert : someone qualified by knowledge, skill, experience, training, or education to give an

opinion or offer an explanation that we would not normally permit from a lay personii. Rule 26

1. Rule 26(a)(2) – Required Disclosure a. Mandatory production 90 days in advance and Opposing Party is permitted to

take depositionb. Requires parties to disclose the identity of each testifying expert c. To provide a written report, signed by the expert, of all opinions that may by

presented at triald. The basis for all opinions,

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e. Data and information upon which the opinions are basedf. Exhibits to be used to support the opiniong. Qualifications, including all publications for past 10 yearsh. Compensation she is being paidi. Listing of other cases in which she has testified either at trial or in deposition

2. Rule 26(b) Divides witnesses into two categories: a. Rule 26(b)(4)(A) - Those testifying at trial for these experts, the substances of

the facts and opinions are necessarily discoverableb. Rule 26(b)(4)(B) - Those who are retained in anticipation of litigation, but will

not testify at trial i. Here, Facts and opinions are discoverable only upon a showing of

exceptional circumstancesii. A non testifying expert protected on the presumption that the opposing party

can find facts or opinions on the subject “by other means”; if there is no other expert, then this would be an exceptional circumstance constituting an exception to their protection (not likely to happen)

3. Other Types of Experts: a. Consulted not retained – don’t retain unless helpful

i. Not discoverable as isn’t listed in R 26(b)(4)ii. Rule 26 does not directly speak as to whether or not a party make discover

the names and information about experts considered, but not retained by opposing counsel;

iii. Advisory Committees argues that this omission is intentional; the rule precludes discovery against experts who were formally consulted in preparation for trial, but not retained or specially employed

b. Fact witnessc. Unaffiliated expert – can depose but must pay for time

i. R 45 – compels non-parties to give depositionii. If compel expert must pay at regular rates

iii. EXCEPTION : If an employee of a party qualifies as an expert, the he did not acquire facts and opinions about the claim in anticipation of litigation and therefore is not protected; just because he is expert doesn’t change rules, he still must testify about facts just like any other witness

iv. Compensation of Experts 1. Additionally, a party may be able to gain free expert opinions.. from persons

qualifying as expert, but not receiving facts in preparation of litigation2. Generally, only required to pay a deponent a standard and modest witness fee for

attending a deposition3. BUT, unretained and unconsulted experts have the same duty to give evidence as

other witnesses, 4. BUT forcing them to testify to their expertise without paying them for it is equivalent

to “taking” of their intellectual property, Rule 45(c)5. THUS Rule 45, advisory notes, allows for the quashing of a motion to compel

discovery of expert opinions from a person, who while under control or authority of opposing party, has not been retained as an expert, absent a showing of substantial need, undue hardships, and presence of reasonable compensation.

v. Delcastor v. Vail Associates (Co. 1985) – UNDER OLD RULE 261. Facts: plaintiff filed a motion to compel discovery of a report containing an

engineering consultant’s opinions regarding the causes of a mudslideg. Pleadings and Privileges Procedurally

i. Party Must Request the Informationii. Party Claiming the Privilege of Objecting to the Request MUST:

1. Rule 26 (b)(5) - When a party wishes to resist discovery by invoking a privilege, musta. Make the claim expressly in writing AND b. “Describe the nature of the documents, communications, or things not produced

or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection”

2. AND they can also seek Rule 26(c) process for protective order

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iii. Requesting Party Can File Motion to Compel Production1. Party making motion to compel discovery must present the court with an argument as

to why the material should be revealediv. Opposing Party can file Memorandum in Opposition

1. Present the court with an argument as to why the material should NOT be revealedv. Court Issues an Order either Denying or Granting Production Request/Privilege/Prot. Order

1. Can’t appeal such a decision until after final judgment2. Court will usually appoint a magistrate to make discovery decisions

vi. Sanctions1. An attorney who doesn’t produce can be found in contempt of court and imprisoned

(NOTE this would be an independent final judgment, which is immediately appealable)

e. Supplemental Discovery – Rule 26(e)i. A party who responded to discovery is Required to supplement it with new information, IF

1. (1) The party learns that the disclosed information/interrogatories are incomplete or incorrect, and new information has not been made known to the other parties during discovery (or in subsequent writings)OR

2. (2) There were incorrect or incomplete depositions/interrogatories of an expert, for which reports are required (per Rule 26(a).

ii. NOTE: A party is NOT required to constantly update information every time, something changesiii. This was relevant in the Kodak case in Appendix

f. Amending the Discovery Process – Rule 29i. Unless the court mandates otherwise, parties may agree in writing to

1. (1)Provide for deposition, which may be taken before any person, at any time or any place; AND2. (2) Modify procedures and limitations dictated by FRCP; EXCEPT

a. Time limits--- which may only be extended BY COURTg. Controlling Discovery

i. A party has only 2 options in response to a request for discovery:1. Produce; OR2. OBJECT – expressly, not silent

ii. At the end of any request, deposition, … always ask the “clean-up” question – “Is there anything else that I should know? Is there anything that you have not told or provided?”

iii. Generally1. Initial control on discovery abuse is Rule 26(g) certification requirement2. Rule 26(b)(2) – intended “to deal with the problem of over-discovery…by giving the court authority to

reduce the amount of discovery that may be directed to matters that are otherwise proper subjects of inquiry”

3. Objections in discovery responses do not automatically go before the court;a. Unless discoveree has failed to respond at all, the discoverer must file a motion for an order

compelling discovery pursuant to Rule 37(a), ONLY after first trying in good faith to resolve the discovery dispute informally

b. Then court reviews objections and rules, if objection inadequate, then grants motion to compel;c. Or objecting party can file a motion for a protective order (see above under objections)

i. Alternative to protective orders may be to delay the sensitive discovery until less sensitive discovery has been taken, or legal challenges to the complaint have been heard, because need for sensitive info may be mooted

h. Discovery Sanctionsi. Rule 37 gives court authority to impose sanction that is just under the circumstances

1. Rule 37 sanctions are NOT mandatory, but are at the discretion of the court2. Possibilities :

a. Holding party in contempt, b. Orders deeming specified facts to be established for purposes of the action, c. Precluding the violator from introducing specific facts into evidence, and striking or dismissing

claims or defenses, d. Giving the judgment by default against the violator

3. These are triggered only by motion of partyii. Rule 26(g)(3) carries its own individual sanctions for violations of the certification requirement

1. Rule 26(g) sanctions ARE mandatory2. BUT, 26(g) ONLY applies to the truthfulness of the response and actions taken after a request has been

made,

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3. These may be imposed by the court on its own initiative; sua sponte; OR they can be sought by a motion filed by the opposing side

4. Authorizes “an appropriate sanction” it spells out only the sanction of making the party who violates the rule pay reasonable expenses incurred, including attorney’s fees

5. Most courts have ignored 26(g) and have punished discovery abuses in frame of Rule 37iii. Chudasama v. Mazda Motor Corporation (11 th 1997) – The Necessity of Controlling Discovery & Sanctions

1. Facts: Plaintiff’s asked for almost every tangible piece of information or property possessed by the defendant, and the defendants offered next to nothing and took several steps to delay discovery; District court never intervened nor did they require the parties to meet to set rules and limits; In response, defendant objected, filed a motion to dismiss part of the claim, sought a protective order, and refused to produce; Court failed to rule, validly, on any of these; Court imposed sanctions under Rule 37 on attorney for not producing

2. Holding: Remanded and Sanctions vacated because too strong—not because not proper 3. Rules:

a. Sanctions were improperly imposed because they were the most severeb. Even under 29(g), sanctions were required, but the severity was not warrantedc. District court abused its discretion; matter such as the legal sufficiency of a claim or defense,

such as a motion t dismiss based on failure to state a claim for relief, should, however, be resolved before discovery began

V. CHOOSING THE APPLICABLE LAWa. Introduction

i. Horizontal choice of law—which state’s law applies among several state choicesii. Vertical choice of law—whether federal or state law governs a decision

1. Absent a federal provision, a federal court has personal jurisdiction only if the state court in which it sit has personal jurisdiction

iii. Rules of Decision Act – codified 28 USC §1652:1. The law 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 court of the United States, in cases where they apply.

a. NOTE : Statute requires the use of state law only if these is no federal statute, treaty, or constitutional provision on point

b. NOTE : Does not require use of state law on all matter,i. Where there is no preemptive federal law, state law applies on all substantive matter, but not

on procedural mattersii. HOWEVER, the line between these two categories is not clear

c. NOTE : This code does not specify which state’s law should apply; i. It is now established that a federal court should apply the law that the state in which it sits

would applyb. Determining What Law Applies

1. Is there a Constitutional Provision on Point?2. Is There a Federal Law or a Federal Rule of Civil Procedure On Point?

a. What are the possible Rules to Consider i. How does the purpose of the Rule apply to the situation at hand?

ii. Is the Rule Intended to Occupy the Field in any way?b. If Yes, Proceed to the Rules Enabling Actc. If No, Proceed to the Rules Decision Act

3. The Rules Enabling Act Prong – When There is a Federal Rule of Civil Procedure On Point a. Deciding Between a FRCP/Federal Statute of Procedure and State Law

i. If the federal provision on point is a statute, did Congress intend it to preempt state law?

1. Whether a federal statute preempts state law depends entirely on the meaning of that federal statute; turns on whether Congress intended the federal statute merely o provide a minimum standard or instead to provide a nationwide uniform standard

a. Court would have to look to the intent of Congress to answer this questionb. If statute was intended to be preemptive and it on point and applies, then it

applies not only in federal court, but also in state courtii. If the federal provision on point is a FRCP, then continue

iii. Determining Whether a Federal Rule of Civil Procedure is Valid1. FR is valid only if it is constitutional

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a. Substance v. Procedure i. Would it change the day to day activities of the parties; Affect Primary Acts?

ii. So long as the Rule is “arguably procedural,” or can be “rationally classified as procedural, then there is a presumption of validity inherent in the political adoption process.

iii. If it can be viewed as being integrally related to the claim, however, it can be viewed as substantive

b. Does the Federal Rule of Civil Procedure Abridge Substantive Rights? i. Incidental Effects are permitted, even if quite large

ii. It must substantially impair substantive rights2. If the federal rule is arguably procedural and does not abridge substantive

rights, then the under the Supremacy Clause, it must be applied 4. The Rules of Decision Act Prong – When there is No Federal Law On Point

a. Deciding Between the State Common Law and the Discretion of the Federal Judge or Federal Common Law

b. These are the “relatively unguided” Erie problemsi. Substance v. Procedure

1. If arguably substantive, then apply State Lawa. Can be something that is integrally related to substance

2. If ambiguous or questionable, go on:ii. Outcome Determinative Test

1. Identify Outcome under each Rule.2. Would applying federal law produce a substantially different outcome that denies

Equal Protection under the Law?a. Goal is avoiding inequitable administration of laws between courtsb. Prevent different treatment of citizens based upon their residential status (in-

state v. out-of-state)3. Would applying federal law produce such a different outcome as to induce forum

shopping?4. Must be a Substantial Difference in providing Predictable Results5. If Affects outcome, then apply state law, UNLESS:

iii. Is there a countervailing Federal Interest? 1. Federal Court’s interest in managing the persons and behavior before it2. Federal Court’s interest in determining it’s own work load and docket

a. Venue, Scheduling,…ii. Cases and Developing the Approach

1. Swift v. Tyson (S. Ct. 1842) – Supreme Court held that the “laws of the several states” included only statutory laws, plus court-made doctrine on matters of “local” law

a. Phrase does not include court-made doctrine on matters of general law; on such issues, the common law is only evidence of what the law is and not the law itself—explanatory or application of law only

b. This distinction between local and general law is hazy at best and did not prove particularly helpful

c. Criticism of Swift i. Doctrine rendered equal protection under the law impossible.

1. The test state forth in Swift, prejudices in-state residents, because they cannot seeking removal to federal court when being sued in their own state;

2. Out of state person got more protection and benefits from an in state federal courtii. Impossibility of discovering a satisfactory line of demarcation between the province of

general law and that of local law developed a new well of uncertainties.iii. Induced significant forum shopping concerns

1. Black & White Taxicab v. Brown & Yellow Taxicab Co. (1928) – defendant was a Kentucky Corp, changed its place if incorporation to allow case to be judged under federal law instead of state law, since state law was beneficial;

2. Erie Railroad v. Tompkins (Supreme Court 1938) – Abolishing Federal Common Law a. In the absence of a federal statute or a Constitutional Provision, federal courts must apply

state law in all it’s form, at least to matter of substance.b. Facts: Tompkins, a citizen of Pennsylvania, injured by passing freight train of Erie; Brought

action in federal court of SDNY, which had jurisdiction because Erie is corporation of NY;

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Question over statue of limitations – state law would bar suit, federal law has no statute of limitations, so would permit the suit;

c. Holding: State common law Applies.d. Rules:

i. Holding of Swift is unconstitutional assumption of powers by courts of US ii. Federal courts are bound by state common law, any refusal to do so is a deprivation of those

rights reserved to the states under the US Constitutioniii. Unequivocally holds that federal courts do not have the authority to make general

common law and MUST, in the absence of a preemptive federal statute, apply state common law

iv. Except in matters governed by the Federal Constitution or by Acts of Congress, the law to be applied in any case is the law of the State

1. Permitting federal courts to make common law on their own violates the 10th Amendment and the reservation of powers to the states; Where Congress has either not acted, or has not power to act, the courts cannot act either.

e. Concurrence: Court should have just held that “the laws” includes state common law and should not have made an interpretation on the Constitution – Doctrine of Strict Necessity i. Also noted that no one doubted the Federal court’s power over matters of procedure –

Article III gives court the inherent power to determine procedures necessary to hear cases and controversies

f. Constitutional Basis of Eriei. Under Swift, federal courts were required to apply state law only where there was an

applicable state statute or the issue was one of “local law”; where there was no statute and the issue was one of “general law”, the Rules of Decision Act was thought to be silent

ii. This created a gap, which the federal courts assumed they could fill by creating general federal common law – this is was Erie found to be unconstitutional

iii. Under Tenth Amendment, all powers not enumerated to the federal government, were reserved to the states—since there is no Constitutional provision giving the court the ability to create a federal common law, a Congressional grant of such power was unconstitutional since that power was reserved to the states

iv. PROBLEMS:1. The enumerated powers of Congress have been construed broadly—there is no doubt

it extends to the regulation of railroads2. One could also argue that by nature, a grant of diversity jurisdiction in Article III, §2,

carried with it the authority to make general federal common law to be applied in diversity cases

3. The Supreme Court has held that the Constitutional grant of admiralty jurisdiction carried such a power with it.

3. Guaranty Trust Co. v. York (1945) – Outcome Determinative Test a. Issue: Whether in a diversity case in federal court the federal court was required to apply the

state statute of limitationsb. Holding: State Law Must be Applied.c. Rules:

i. Unequivocally Rejected any type of labeling test, i.e. substance v. procedureii. Should Apply a Functional Analysis focused on “the effect of the rule in question on the

outcome of the case”1. Question is whether a statute of limitations concerns merely the manner and the

means by which a right to recover, as recognized by the State, is enforce, or whether such statutory limitation is a mater of substance that significantly affects the result of a litigation for a federal court to disregard a law of a State that would be controlling in an action upon the same claim by the same parties in a State court?

d. Gloss: This holding created a fear that the federal rules and especially, the FRCP would always be preempted by state law as being outcome determinative and that the FRCP were in troublei. Ragan v. Merchants Transfer & Warehouse – court held that a state law controls when an

action is “commenced” for purposes of the statute of limitationsii. Woods v. Interstate Realty Co – Court held that state law barring out-of-state corporations

that had failed to properly register from suing in federal court was applicableiii. Cohen v. Beneficial Industrial Loan Corp. – court held that a state bond requirement should

be applied in a shareholder derivative action in federal court

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iv. Chamber v. NASCO – federal district court in Louisiana ordered defendant to pay $1million as sanction for bad faith; court did so not under Rule 11, but rather on its “inherent power”; defendant argued state law controlled

1. Supreme Court held that different sanctions for bad faith would not result in forum shopping; because parties control their own conduct, application of the federal rule would not result in an inequitable administration of the laws

v. 4. Byrd v. Blue Ridge Rural Electrical Cooperative (Supreme Court 1958) –

a. Countervailing Federal Interestb. Facts: Involved a worker’s compensation claim brought by statutory employee; Suit brought

WD of SC, jurisdiction based on diversity of citizenship; claim is based on negligence; Petitioner is resident of NC; respondent is SC corporation; Petitioner gained a jury verdict; Court of Appeals reversed for directed judgment for respondent

c. Holding: Reversed and remanded; Strong Federal Interest in Right to Jury Triald. Rules:

i. State laws can not alter the essential character or function of a federal court because that function is not in any sense a local matter, and state statutes which would interfere with the appropriate performance of that function are not binding upon federal court under either the Conformity Act or the Rules of Decision Act

ii. The function assigned to a jury is an essential factoring the process for which the Federal Constitution provides

iii. A question of procedure that is integrally related to the claim can be viewed as substantive

e. Determining the Applicable Law: Adding a Consideration of Federal Interest i. Where outcome the only consideration here, it would be weighty, since outcomes are

likely to be different, BUT there are affirmative countervailing considerations to be considered:

1. Essential characteristic of federal system is the manner in which, in civil common-law actions, it distributes trial functions between jury and judge, and under influence of 7th Amendment, assigns the decisions of disputed question of fact to the jury

2. State laws can not alter the essential character or function of a federal court because that function is not in any sense a local matter, and state statutes which would interfere with the appropriate performance of that function are not binding upon federal court under either the Conformity Act or the Rules of Decision Act

3. The function assigned to a jury is an essential factoring the process for which the Federal Constitution provides

5. The Federal Rules of Civil Procedure a. Generally

i. The Supreme Court has never refused to apply a Federal Rule of Civil Procedureii. When there is one on point, there is a VERY high presumption of preemption

iii. Rules Enabling Act1. Congress granted the courts power to determine procedures; power is established in

Article III, under Congress’s power to create the court system2. Resulting rules have full force of the law under the Supremacy Clause

b. Determining When there is a Federal Rule of Civil Procedure On Point i. While court has never struck down a FRCP, it has held some to not be applicable when it

would appear otherwise1. Walker v. Armco Steel Corp - dispute over when an action commenced for purpose

of statute of limitations; FR would have barred suit; court held that the Rule was not intended to toll as a statute of limitations and therefore did not apply

2. Cohen – court held that federal court must apply state law requirement that plaintiff’s to shareholder derivative suits post bond; Rule 23.1 governs, but makes no mention of bond;

a. Court held that 23.1 neither prohibited nor required bond, so state law not in conflict with 23.1

3. Burlington Northern Railroad v. Woods – Rule 38; If a court of appeals shall determine that n appeal is frivolous, it may award just damages and single or double costs to the appellee; state law fixed such damages at 10%; court held that Rule 38 controls, by permitting but not requiring sanctions, it prohibited mandatory sanctions; only sanctions available are those within Rule 38 itself

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c. When is Federal Rule of Civil Procedure Valid i. STEP 1: FR is valid only if it is constitutional

1. Congress’ authority to create a federal court system carries with it authority to mandate the procedural ruled for those courts

2. Congress’s constitutional power over federal procedure extends to anything “rationally capable of classification” as procedure; so long as it is arguably procedural, then it is constitutional

ii. STEP 2: The Rule must also be within the delegated authority given to the courts by Congress in the Rules Enabling Act 28 USC §2072 –

1. Supreme Court may promulgate procedural rules, but not procedural rules that alter or amend substantive rights

2. Sibbach v. Wilson Co. – court ordered plaintiff to submit to physical examination pursuant to Rule 35, but state law restricted; plaintiff argued Rule 35 was invalid because it restricted a substantive right to be free from indignity and intrusion of court-ordered exams;

a. Supreme Court rejected this argument, holding that subsection (b) of §2072 merely restates (a), doesn’t limit it

b. Court held that procedural and substantive are mutually exclusive, thus if it really regulates procedure, then by definition it cannot alter or amend substantive rights

c. “Rule which incidentally affect litigant’s substantive rights do no violate this provision if reasonably necessary to maintain the integrity of that system of rules”

d. Hanna v. Plumer (Supreme Court 1965) - i. Facts: Petitioner, citizen of Ohio filed complaint in district court of Mass against defendant,

citizen of Mass., for an auto accident that occurred in SC; On February 8, Service was made by leaving copies of the summons and the complaint with respondent’s wife at his residence, concededly in compliance with FRCP; but respondent filed answer, claiming that service was in violation of Mass state law, and therefore improper

ii. Issue: Whether service of process shall be made in the manner prescribed by state law or that set forth in Rule 4(d)(1) [now Rule 4(e)(2)]of FRCP?

iii. Holding: Reversed; iv. Rules:

1. The determinative outcome test should not be a pure standard – every decision between federal and state law affects the outcome of the case, or else it would never be litigated.

2. For the outcome effect to matter, it must have a substantial effect such that it would induce forum shopping and alter primary conduct outside of the courtroom

c. Determining the Content of State Lawi. Generally

1. Once a federal court has determined that it must apply state law, it must then determine the content of that law

2. Gustin v. Sun Life Assurance Co – court felt bound by an unpublished Ohio opinion even though state law provided that it was of no precedential value

3. If there is no state law on point, the court must still decide the question; can’t avoid the questiona. CERTIFICATION : one method for removing uncertainty about content of state law

i. Federal court is confronted with an uncertainty in state law, it can certify the state law issue to that state’s highest court and request that opinion of that court on the issue

ii. Proceedings in the federal court are temporarily stayediii. Parties argue and submit briefs to the State Supreme Court who then issues an opinion on the

issueiv. The parties then return to federal court and the litigation picks up where it left off

4. STANDARD: Later, federal courts came to accept that in addressing issues of state law, a federal court should do what it believed the state supreme court would have done

a. THUS, the federal court is to look to all available data to make its best guess as to the content of state law

b. But, federal courts may have difficulties in making such a prediction, so what happens when the federal court guesses wrong?

ii. DeWeerth v. Baldinger (2 nd 1994) -

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1. Facts: Dispute over ownership of an oil painting by Monet; state law had not addressed the issue, but the federal court ruled that plaintiff had to show an effort of reasonable diligence in trying to recover the painting, thus defeating plaintiff’s suit; Several years later, the NY court held that no such showing of reasonable diligence was required; this if Deweerth’s suit brought under this rule, it would not have been dismissed; Plaintiff seeks to reopen suit pursuant to Rule 60

2. Holding: Request Denied.3. Rules:

a. The fact that the NY court of Appeals later reached a contrary conclusion to that of a prior federal court decision, does not constitute an “extraordinary circumstance” that would justify reopening this case in order to achieve a similar result

b. Plaintiff opted to sue in federal court and thus assumed the risk that the federal courts might rule in opposition to a subsequent state finding;

c. When confronted with an unsettled issue of state law, a federal court sitting in diversity jurisdiction must make its best effort to predict how the state courts would decide the issue

4. Gloss: a. Rule 60(b) - note the grounds upon which a judgment can be reopened and note that first three

grounds are subject to a one-year time limit; mere legal error is not a basis for relief under 60(b), but a change in the relevant law may be a basis for relief

d. Federal Common Lawi. Although Erie held that there is no general federal common law, in a few limited areas, there is a federal common

law that survivesii. It is limited to those areas in which there is an overwhelming need to have one federal rule and where Congress

could, but has not, provided that ruleiii. It is generally treated as statutory law, is preemptive of state law and binding on state courtsiv. Sometimes the authority can be said to derive from some federal broad federal statute that appears to contemplate

a single federal rule, but does not specify what the rule isv. In other cases, it can be argued that the Constitution itself grants this authority

vi. In any case, the court is only acting in an area in which the Congress could legislate, but has not done sovii. Federal common law issues:

1. Interstate water allocation2. Admiralty3. Interstate border disputes4. Certain issues affected by international relations5. Issues affecting the propriety interests of the US government

VI. SUMMARY JUDGMENT – Rule 56a. Generally -

i. When the facts are undisputed, all that remains is to apply the relevant law and summary judgment is proper1. In such cases, parties may stipulate to the facts for the purposes of the motion (QI);

a. Similar to when parties submit a motion to dismiss for failure to state a claim – for purposes of the motion only, the defendant agrees that the factual allegation in the plaintiff’s complaint are true, and asks the judge to decide, as a matter of law, whether it states a claim based on those taken-as-true-allegations

2. In the alternative, parties may argue that the evidence is so one-sided that no reasonable fact finder could dispute the existence or non-existence of certain facts

ii. Purpose of Summary Judgment is to Promote Efficiency1. Dispense of Invalid or unworthy claims before imposing burden of trial2. Right not to try case if prove no dispute, important in avoiding unnecessary trials

b. Timing – i. Rule 56(a) -

1. Plaintiff must wait until 20 days after the complaint is served; OR2. Anytime after service of a motion for summary judgment by the adverse party

ii. Rule 56(b) - Defendant may file any timeiii. Rule 56(c) – Motions MUST be served at least 10 days before scheduled hearings

c. What Record Should the Court Consider? i. The Court Should consider all evidence that would be admissible at trial

1. Rule 56(c) lists depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, as materials which may be considered

a. BUT all these materials must also be tested under the rules of evidence for admissibility at trial

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i. If evidence would not be admissible at trial, then it should not be considered in deciding on a motion for summary judgment

ii. Parties may also file affidavits in support or opposition to a motion1. Affidavit –sworn statement on personal knowledge of signer

iii. Promises of evidence (or of proving a witness is not credible) are not to be consideredd. STANDARD :

i. Is there a genuine dispute of a fact material to the judgment?1. Rule 56 looks only genuine issues of material fact, not law; if the law is not clearly established, then the

court must still decidea. Occasionally, however, the judge will deny the motion and make the parties go to trial because

they conclude that fuller record may clarify the correct legal analysis and make the legal determination more clear – Supreme Court has approved this practice

ii. If no, then1. Whether the evidence is such that a reasonable jury could not find by a preponderance of the

evidence for the non-moving party2. Whether the state of the evidence is such that, if the case were tried tomorrow, the [non-moving party]

would have a fair chance of obtaining a verdict; if no, summary judgment appropriatee. Procedure and Burdens of Production and Persuasion

i. What is the applicable law?ii. What is the theory on which the movant seeks summary judgment?

1. If movant has burden of persuasion, the all elements of claim must satisfy standard for SJ; OR2. If opposing party has burden of persuasion, can either:

a. Disprove of an element of the adverse parties claim; ORb. Demonstrate a general absence of proof

i. Point to Record and demonstrate that there is nothing init from which knowledge could be conferred

ii. Ex – Duplantis v. Shell Offshore, Inc.1. Facts – slip on greasy board, claims Shell’s responsibility

a. All shell has to do is show someone else owns the boardiii. Court first looks to if moving party has made burden

1. Must demonstrate that there is NO genuine dispute of material fact2. See Rule 56(c)

iv. If meet, opposing party must provide specific facts demonstrating a genuine dispute of material fact1. Must demonstrate that there IS a genuine dispute of material fact by pleading specific facts

a. General Dispute – doesn’t necessarily mean going to win, just means has a chance – i. Doesn’t even have to be a 50/50 split, just reasonable that jury could find

1. Means a jury could vote for, not would so vote.b. Party Can use circumstantial facts to draw reasonable inferences

2. See Rule 56(e)3. Rule Expressly prohibits the non-moving party from “resting on the mere allegations or denials of the

adverse party’s pleading” to defeat a properly supported motion for summary judgment4. Can provide additional evidence to show such a dispute

a. Affidavits, Documents, etc.5. Must depose or try to get facts before summary judgment, can’t just say will show at trial6. Must find inconsistency before hand7. Rule 56(f) - If unable to respond, can ask for extra time to complete necessary discovery

v. If non-moving party has met their burden, then deny motion for summary judgmentvi. If non-movant has NOT met their burden, then

1. Is the moving party entitle to judgment as a matter of law2. If so, then under R52 the court MUST write opinion on summary judgment

f. Judge’s Considerations and Limitsi. A judge is not allowed to weigh the evidence in deciding motion for summary judgment,

1. BUT there is some point at which the evidence outweighs all other evidence such that a fact finder could reasonably reach but one conclusion

2. A judge can find a witness incredible as a matter of law (two contradictory storied under oath)ii. Under Rule 43(e), judges are allowed to make some factual determinations: personal jurisdiction, parties’

citizenship…1. On such disputes, oral testimony may be helpful – Rule 43(e)

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2. In addition, in some cases oral testimony may help the court determine if there is a genuine factual dispute, but this is potentially so inefficient, so similar to trial, that it would destroy the intended summary nature

g. Slaven v. City of Salem (Mass 1982) - i. Facts: prisoner hangs himself on his belt; Question over whether the guards where negligent and / or had notice

of prisoner’s propensity for self inflicted violenceii. Rules:

1. An adverse party may not rest on the mere allegations or denials of his pleading, a. His response, by affidavits or as otherwise provided in this rule, must set forth specific

facts showing that there is a genuine issue for trial; b. If he does not, summary judgment if appropriate, shall be entered against him.

2. If the plaintiff is unable to “present by affidavit facts essential to justify [her] opposition” to summary judgment, the plaintiff must file an affidavit and state the reasons for that inability

h. Summary Judgment and Other Dispositive Motionsi. Summary of Decisions as a Matter of Law

1. Four different motions:a. Rule 12(b)(6) motions to dismiss for failure to state a claimb. Rule 12(c) motions for judgment on the pleadingsc. Rule 56 motions for summary judgmentd. Rule 50(a) motions for judgment as a matter of law

2. They all ask the judge to decide whether the settled facts support application of a substantive legal rule to decide all or part of the case as a matter of law

3. They differ primarily in their timing and therefore in “how” the facts are “settled” to furnish the recordii. Summary Judgment v. Bench Trial

1. In a partial bench trial, the court applies the standard of proof which the fact finder must apply in the case; preponderance of the evidence in most cases

a. Summary judgment, applies the genuine dispute of fact standard and cannot weigh the evidence2. By time of a bench trial, parties have typically completed discovery and pleading; contrast to summary

judgmentiii. Summary Judgment v. Directed Verdict (Rule 50(a))

1. S Ct also summarized the standard for both as: whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law

2. So standard is the same3. BUT summary judgment motions are usually made before trial and decided on documentary evidence,

while directed verdict motions are made at trial and decided on the evidence that has been admittediv. Summary Judgment v. 12(b)(6) Motion to Dismiss

1. When material outside the complaint is offered in support of a 12(b)(6) motion, it is converted to a motion for summary judgment

2. Record Considered: a. 12(b)(6) is decided only on the 4 corners of the well pleaded complaint; b. The motion for summary judgment is decided on the record of facts contain in all the supporting

materials, and opposing material, which would be admissible at trial3. Response Required:

a. 12(b)(6) no response requiredb. Summary Judgment, non-movant must plead specific facts to create genuine dispute

4. Same Standardv. Stewart v. RCA Corporation (7 th 1986) – RARE CASE RE IMPLICITLY WAIVING RIGHT TO JURY TRIAL

1. Facts: plaintiff was laid off by defendant; defendant claims that plaintiff had notice of the lay off and thus started the statute of limitations tolling; Defendant claims that plaintiff had notice more than two years before filing of the complaint and thus his claim is barred

2. Relevant Procedure: a. D filed motion to dismiss for failure to state a claim; attached affidavits of other employees b. D also asked the court to hold a hearing on motion under to Rule 43(e) to resolve factual disputec. Court then converted the motion to dismiss to a motion for summary judgment d. The judge then held a hearing, included witness testimony to determine the date of noticee. The court ruled that notice was given and the statute had tolled; f. Court granted defendant’s motion for summary judgment

3. Holding: Affirmed.4. Rules:

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a. A defendant based upon the state of limitations should not be brought in a motion to dismiss, but rather is proper as an affirmative defense raised in a motion for summary judgment

b. But in assessing a motion for summary judgment, the judge is not to assess the credibility of the witnesses, if he needs to, then this is a dispute of fact

c. The plaintiff, who had not asked for a jury trial, and who makes a full evidentiary presentation without protest, implicitly consents to a resolution of the disputed issue in a partial bench trial under Rule 42(b); explicit consent is preferred, but not required

5. Gloss: a. Usually, a party cannot waive their right to a jury trial absent an express waiver

i. Where there is a waiver, moves to a bench trial under Rule 42(b) and the standard for review is clearly erroneous

b. Motions to dismiss pursuant to 12(b)(6) are rarely proper for statute of limitations defenses because most plaintiff’s won’t allege such facts and therefore it can’t be considered in a 12(b)(6) motion by the 4-corners well pleaded complaint rule

i. Policy Considerations (A Civil Action)i. Benefits of the Motion

1. Nothing to lose, may win on the motion2. Find out what the adverse party’s evidence is before trial3. Run up opposing party’s costs and delay suit4. Educate the judge or highlight issues of weakness in opposing party’s case

ii. Disadvantages of the Motion1. Opposing party only has to demonstrate that there is a genuine dispute2. May educate the judge in the opposite direction3. May waste the judge’ time4. Could be subject to Rule 11

a. Motion must have some remote possibility of success, or else sanctions

VII. A CIVIL ACTIONa. Demonstrates issues in the following areas:

i. Discovery –1. Reasonable Inquiry Required Before Filing Complaint2. Ethical Considerations of Forcing an Attorney to Testify3. Use of Experts4. Abuses of Discovery

a. The Yankee Reportii. Rule 11 Sanctions

iii. Prolonging the Suit to Incur Costs on Other Partyiv. Summary Judgmentv. Judicial Biases

vi. Settlement Dynamic – 1. When should you consider settlement?

a. Discovery may change or determine expectations/valueb. Who goes first a matter of timing

i. There is a psychological consideration that first to go shows weaknessc. Time for settlement any time after other side has lost on something

i. Even after final judgment still settlement time as avoid appeal, motions to court after, bankruptcy problems, difficulties in collecting, settlement better as insures cash and an end

2. Valuing Lawsuit a. Precedent - amount given in this sort of case previously tried

i. Remember to subtract cost of case and life expenses avoidedii. Look at economic estimates, medical figures….

b. Try mock jury to see possible ranges of verdictsi. must find least will take - maximum x probability will win

3. Key Knowledge Points a. Know squeal point or your bottom line

i. Tie figures to reasonable and rational thingsb. Separate attorney’s financial situation from that of the clients and the casec. Factor litigation cost realistically –

i. Shouldn’t file suit unless financially prepared to try case d. Involve the client – MUST bring offers to client

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i. Evaluate client wants and wishes as suit progresses

VIII. JURY TRIALa. Steps:

i. Article I or Article III Court1. If Article III, proceed.2. If Article I,

a. Is the right public or private?i. If public right → no constitutional right to a jury trial.

ii. Was a proper demand for a jury trial made?iii. Does the Party have a right to a jury trial?

1. What is the historical nature of the claim being asserted (equitable or legal)?2. What is the historical nature of the remedy being sought (equitable or legal)?

a. This is the more important prong of the test3. NOTE that if Congress assign a public right to an Article III court, the historical analysis still

appliesb. Introduction

i. Arguments in Support of Use of Juries (from plaintiff’s prospective)1. Human Factor to the Judicial Process – Emotions matter2. Larger Verdicts3. More in touch with social concerns4. More heads, more perspectives and points of view

ii. Arguments in Opposition to Use of Juries (from plaintiff’s prospective)1. Complex issues → jury may not be able to understand2. Parochial or discrimination concerns3. Take more time and money4. More Difficult to schedule

iii. General Concerns1. Demographics of the Jury – Race, Gender, Rural v. Urban Bias, 2. Calendar – Jury trials take long3. Evidence – broader scope with bench trial, but less emotion

iv. Is there a Constitutional Right to Not have a jury trial?1. Some cases may be so complex that presenting to a jury could amount to a miscarriage of justice2. Supreme Court has expressly held that there is no Constitutional right to not have a jury trial

v. Alternatives Ways to Improve Abilities of the Jury1. Aid the judicial system by creating specialty courts2. Aid the jury by:

a. Using Special Verdict Formb. Under Rule 42(b) divide the claims for simplicity purposesc. Appoint a special aster (an expert) to assist the jury

i. Under Rule 53ii. VERY RARE

iii. Strong concern that the expert will usurp the role of the jury and they will simply defer to his judgment on the issue

c. Procedure for Requesting a Jury Triali. Demand for Jury Trial

1. Rule 38(b) - Must make a request, in writing, either in pleading, or in some other papera. Must be served on all partiesb. Can be requested by any partyc. Generally, the request is made in the complaintd. MUST be made within 10 days of a pleading raising a jury triable issue

ii. Specification of Issues 1. Rule 38(c) –

a. In the demand, the party may specify which issues it wants to be tried by a jury; i. Otherwise, trial by jury is assumed to be demanded for all issues

b. If a party specifies only some issues, then the other party has 10 days to serve a “demand” for other issues he wished to be tried by jury

iii. Waiver of Right to Jury Trial 1. Rule 38(d) -

a. Failure to serve and file a demand pursuant to this rule, constitutes a waiver of the right

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b. Once a demand is made, it may only be withdrawn if both parties consent2. If you miss the deadline, may:

a. Make a motion to the court to grant in its discretion (but adverse party gets to oppose); ORb. Use free voluntary dismissal and refile and proceed properly

d. Right to a Jury Triali. Rule 38(a) – The rights of a jury trial guaranteed by the 7th Amendment of the Constitution shall be preserved to

parties inviolate.ii. Rule 39(a) – When a proper demand has been made, the case shall proceed as a jury action, UNLESS

1. (1) The parties both consent on record to the withdrawal of the demand; OR2. (2) Upon motion or the court’s own initiative, the court find that a right to a jury trial on all or some of

the issues does not exist under the Constitution or under any US Statuteiii. Civil v. Criminal Rights

1. Supreme Court has held that the 6th amendment is binding on all states; BUT2. Court has NEVER held that the 7th amendment is binding

a. Thus there is NO federal Constitutional right to a jury in a civil case, though there could be a state Constitutional right

iv. Scope of the Constitutional Right1. 7th Amendment refers to “suits at common law”; and uses words “preserves” implies that historical

analysis is proper to ascertain the intent of the Constitution 2. Actions at Common Law / Historical Test

a. What is the historical nature of the claim being asserted (equitable or legal)?i. Actions at law are for the jury

ii. Actions in equity are for the judgeb. What is the historical nature of the remedy being sought (equitable or legal)?

i. This is the more important prong of the testii. Equitable remedies in clued specific performance, rescission, disgorgement of profits, or

injunctionsiii. Money damages are typically legal remedies, except

1. Where money is restitutional in nature; OR2. Where money damages were incidental to or intertwined with injunctive relief

c. Example: i. Chauffers Local, v. Terry (1990) -

1. Facts: Breach of collective bargaining; Breach of union duty of fair representation; Union members are seeking an injunction and compensatory damages; company goes bankrupt; leaves with only suit against union and question of eligibility for jury trial

2. Holding: 3. Rules:

a. This claim could historically be classified as legal or equitabled. Critique (Justice Brennan) –

i. Historical test is flawed because modern day claims are seldom comparable to historical claims AND few judges are equipped to perform accurate and detailed historical analysis that is necessary for this test

3. Additional Testsa. Why not decide functionally?

i. Could determine whether, depending on the nature of the claim, a judge or a jury is best equipped to decide the matter

ii. Ross v. Berhard (1970) – Court added a third prong to the test:1. The practical abilities and limitations of juries

iii. Concerns:1. Constitutional concerns with due process of law2. Right shall be preserved, directly contradicts an independent pragmatic approach

4. Complications of Merger and Federal Rulesa. Rule 2 merged the two types of actions together – legal and equity

i. “There shall be one form of action”b. Not all state have merged the systemsc. Rules for Merger and the Right to a Jury

i. Where claims are unrelated, one equitable / one legal, split under 42(b) and try separately1. This is the same outcome of permissive (unrelated) counterclaims2. Note joinder proper under Rule 18

ii. Where claims are related (there is factual overlap), one equitable / one legal,

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1. Split claims under 42(b) and try the legal issue first to the jury2. Then try the second portion before the judge

a. Finding of the jury are stipulated facts for the equitable portion of the claim3. This is the same outcome of compulsory (related) counterclaims 4. NOTE, the reverse is not constitutional

iii. Even where the legal claims are merely incidental to the equitable claims, must still split and try legal claims to a jury first and then the equitable claims to the judge

1. This is true even if a party tries to classify the legal portion as being equitable2. Courts are not bound by the “classifications” of the parties

iv. At common law, derivative suits or class actions were always equitable suits, BUT1. Under 23, 23.1, the same historical analysis must be applied, despite the general

common law classification5. Juries in Non-Article III Courts

a. Generallyi. Article I courts are administrative courts that are created out of Congressional power and do

not possess or execute judicial power (in theory)ii. Remedies here are created by statute

iii. Here, because of the need for expertise, uniformity, efficiency, and implementation of consistent and complicated statutory schemes, juries would not be helpful

iv. Examples :1. Local Court of DC2. Bankruptcy Courts3. Administrative Courts

b. Atlas Roofing v. OSHRC (1977) - i. Facts: suing under OSHA on an claim of unsafe working conditions; bring suit in an Article I

administrative court ii. Holding: This is a public right and there is no Constitutional right to a jury

iii. Rules: 1. Article I courts may only adjudicate public rights involving the government in

its sovereign capacity, or rights created by the federal government a. Public Right : Right created by congress asserted by government or private

party, so highly integrated into public regulatory scene that would be contrary/inconsistent w/ efficient, speedy, expert, uniform decision for jury to hear them

2. Congress can’t assign jurisdiction over “private” rights to an Article I courtiv. Gloss:

6. Juries in State Courtse. Selection and Size of the Jury

i. The Venire and Voir Dire1. Venire: panel that is selected from the jury pool2. Voir Dire: process used to select the final jurors from the panel

a. There is no right to participate in voir dire – judge decides in his discretionb. Don’t have to raise same questions to every juror

ii. Peremptory Challenges1. Generally

a. Make attack the Venire directly if not a fair cross section of societyi. BUT can only attack the process followed, and NOT the results of the process

b. At Voir Dire:i. For Cause : Due to an apparent bias, for demonstrated cause

1. No numerical limit, but must show cause for each2. For cause – generally statutorily defined, must be an obvious relation

ii. Preemptive : no explanation required; strategy1. Each side is only permitted 3

2. JEB v. Alabama - prevents using preemptive challenges as a means to discriminate based on either race or gender;

iii. Jury Size1. In federal courts, the jury may be no less than 6 members; can be no more than 122.

f. Instructing the Juryi. It is the parties’ obligation to draft and propose jury instructions – typically at the pre-trial conference

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ii. Typically, both parties propose competing instructions and then the Judge will decide and draft a final version1. This is a tactical opportunity to frame the issues in a manner favorable to your client

a. BUT must be careful because jury instructions are the most frequently contested issued upon appeal even if you prevail at trial, may be overturned if jury instructions are improper

2. There is a book of standard instructions, but reduces ability to specialize to your caseiii. NOTE: the jury is read the instructions and they are not permitted to take any notes, nor can they read the

instructions themselvesiv. Rule 51

1. An Objection to the jury instructions must be made before the jury retires or else, cannot contest on appeal; Deemed to be waived

a. Even if instructions are improper, the judgment is still not reversible ifi. The mistake resulting in only harmless error (i.e. outcome would have been the same)

1. Rule 61ii. The given instructions have the same meaning, just in different wording

g. Verdict Formi. Special Verdict Rule 49(a) v. General Verdict Rule 49(b)

ii. When verdict answers are inconsistent, see Rule 49(b)(4)(B)1. Is applicable to general and special verdicts

h. Controlling and Second Guessing the Jury

Weaker Evidence for Π Equal Evidence Stronger Evidence for Π

W Q R

X Z Y

i. Burden of Persuasion 1. Entire Domain from X to Y is the domain for the Jury2. The Judge only has power over things beyond the X and Y Points where it is so clear, that no

reasonable jury could find otherwisea. If there is doubt, it is within X to Y and is for the jury

3. Burden of Production is to get beyond the X line; survive summary judgment4. Burden of Persuasion is getting past the Z line, but this is within the jury’s discretion

ii. Judgment as a Matter of Law (JMOL)1. Generally

a. When a case goes to trial, the court retains the authority to determine whether there is sufficient evidence to support a jury verdict

b. If the court determines that there is insufficient evidence, it may:i. Decline to submit to the jury and enter judgment as a matter of law (JMOL); OR

ii. Allow case to go to the jury and if jury returns verdict for which there is insufficient evidence, enter a judgment notwithstanding the verdict (JNOV)

2. JMOL - (Directed Verdict) – Rule 50(a)a. COURT MAY NOT ORDER SUA SPONTEb. Terminology depends upon the court

i. State – Motion for Directed Verdictii. Federal – Judgment as a Matter of Law

c. Evidence Considered i. Court are to consider all of the non-movant’s evidence and the movant’s evidence that has

not been contradicted or impeached1. If the movant’s evidence has been contradicted or impeached, then a genuine dispute

of fact remainsii. Can also consider any reasonable inferences

d. Standard is: i. “Whether a fair minded jury could return a verdict for the movant on the evidence

presented”e. Timing :

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i. May be made after the close of the opposing parties’ evidence & at the close of all the evidence, but before submission to the jury

1. Cannot be made sooner because each party is entitled to be fully heard on the issue3. Renewed JMOL – (JNOV) – Rule 50(b)

a. COURT MAY NOT ORDER SUA SPONTEb. Terminology depends upon the court

i. State – old JNOVii. Federal – Renewed JMOL

c. Standard and Considered Evidence is the same; Just that timing is different d. Timing:

i. Made after the rendering of a jury verdict – within 10 days of entering of judgment1. BUT, Renewed motion can be made only if that party previously moved for JMOL

at the close of all the evidence & before submission to the jury– RULE 50(b)ii. Note : Out of concerns for efficiency, a judge will sometimes delay granting to see what jury

does; if concur, then rest on verdict, if disagree, then grant motion and if later reversed, no need to have a new trial, just reinstate jury verdict.

e. Baltimore & Carolina Line v. Redman (S Ct 1935) – Court upheld the practice of granting renewal JMOLs…i. Previously had been unconstitutional, because it required a “fact tried by a jury” to be re-

examined which is prohibited by the 7th Amendmentii. Court got around that provision by declaring that a grant of a renewal JMOL is simply a

delayed ruling on directed verdict – See Rule 50(b)4. Lavendar v. Kern (1946) – Standards for a JMOL

a. Facts: Plaintiff claims was killed by hook on passing train; Defendant claims was attacked and murdered while on the job; Jury entered verdict for the plaintiff and awarded $30,000

b. Holding: Jury Verdict reinstated; sufficient evidencec. Rules:

i. “Renewed” JMOL motion is appropriate only “when there is a complete absence of probative facts to support the conclusion reached; only then does a reversible error occur.

ii. BUT where there is an evidentiary basis for the jury’s verdict, the jury is free to discard or disbelieve whatever facts are inconsistent with its conclusion.

iii. All necessary inferences are reasonabled. Gloss:

i. Reeves v. Sanderson Plumbing (S Ct. 2000) – age discrimination case1. BURDEN: plaintiff must make prima facie case of discrimination; then employer

takes burden to establish an alternative explanation for the action; then plaintiff regains burden to show explanation is pretexual

2. HERE: plaintiff stated prima facie case and had sufficient evidence to allow a jury to conclude defendant’s explanation was pretext; BUT

a. Fifth circuit reversed plaintiff’s verdict holding that evidence was not sufficient to allow verdict to stand;

b. Supreme court reversed and reinstated jury verdict holding that “proof that the defendant’s explanation is not credible it ‘one form of circumstantial evidence that is probative of intentional discrimination’ “

ii. Wratchford v. SJ Grove & Sons (4th 1969) – 1. Two contradictory theories of explanation for plaintiff’s injuries (either fell in

construction hole (D is L) or slipped on ice, injured, and crawled into hole (No L)2. Trial Judge found that either inference was reasonable and equally well supported and

thus entered verdict for the defendant3. Circuit court reversed and remanded case holding that it “should have been submitted

to the jury with instructions that plaintiffs must persuade them by a preponderance of the evidence”

iii. Reid v. San Pedro (Utah 1911) – wandering cow case; either through broken part of fence (D is L) or open gate (NO L); evidence was at the equal point (Z)

1. Inference of either occurrence is equally possible and reasonable; thus the plaintiff has not met burden of persuasion and verdict must be entered for the defendant

2. Did not permit reasonable inferences3. THIS CASE IS THE EXCEPTION

iii. Motions to Set Aside the Judgment – Rule 60Page 37 of 50

1. RULE 60(a) – a. More easily invoked than 60(b)b. BUT address only the correction of clerical errors

2. RULE 60(b) – a. Broad range of ground upon which such a motion can be basedb. Party failing to make a timely JMOL or new trial motion will seek relief by setting aside the

judgmentc. NOT AN APPEAL; motion is made to the trial court entering judgmentd. Issue and decision is left to full discretion of the judgee. VERY RARE

iv. New Trials – Rule 591. THE GRANTING OF A NEW TRIAL IS WITHIN THE TRIAL COURT’S DISCRETION

a. SO ON APPEAL, COURT MUST DETERMINE IF THAT DECISION WAS AN ABUSE OF DISCRETION (Easier to overturn that a jury verdict)

2. Provides mechanism for some court intervention where the court thinks the jury’s verdict is against the strong weight of the evidence

a. Rule 59 – courts may order a new trial “for any of the reasons which new trial have heretofore been granted in actions at law in courts of the U.S.”

3. Grounds for a New Trial – Rule 59(a)(1) - Examples a. A district court may order a new trial:

i. On grounds that the verdict is against the clear weight of the evidence on issues vital to the party’s claim or defense (an evaluative error); OR

1. STANDARD : Clear and definite conviction of the court that the jury erred and made a miscarriage of justice

a. Must be more than just the judge disagreeing with the juryb. Fact specific Inquiry

2. In ruling on a new trial motion, judge is permitted to weight the evidence and is not required to view the evidence in the light most favorable to the non-moving party; HOWEVER

3. Courts have been admonished no to substitute their judgment of the facts and credibility of the witnesses for that of the jury

ii. On Process Error1. Procedural Error that caused unfairness 2. Jury Instructions – where not harmless3. On grounds of misconduct by counsel; OR4. On grounds of improperly excluded / included evidence; OR5. On grounds of Improper denial of a jury trial; OR6. On grounds of other unfairness at trial; OR7. On grounds of newly discovered evidence; OR

a. If discovery occurs more than 10 days after judgment, under Rule 60(b)(2) have within 1 year of entry of judgment to request a new trial

b. New Evidence MUST be material and not able to be found by due diligence during the trial

8. On grounds that the size of the verdict is contrary to the weight of the evidence. i. FEDERAL TEST: whether the size “shocks the conscience of the Court” or is

“so grossly excessive that it is not rationally related to any evidence adduced at trial” (EXCEPT in diversity, state std applies)

ii. STATE TEST: may require more scrutiny than the federal standardb. When amount is excessive, court may grant “remittitur”

i. Judge awards the highest reasonable amount that a reasonable jury could have awarded

ii. Remittitur : court offers plaintiff option of accepting a lesser verdict or of having a new trial

iii. Plaintiff not required to accept amount, but would have to go through new trial

iv. Practice is constitutional so long as plaintiff is offered option of new trialc. NOTE that the opposite, an additur, was found to be unconstitutional under 7th

Amendment4. Timing for Motion for New Trial – Rule 59(c)

a. Must be made within 10 days after the entry of judgment

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5. Granting a New Trial on the Court’s Initiative – Rule 59(d) a. COURT MAY ORDER SUA SPONTEb. The court may issue an order for a new trial on any of the grounds it may have granted by

motionc. Court must specify the grounds for the grantd. Court must make the order no later than 10 days after entry of judgment

6. Motion for a New Trial and JMOL a. Party disappointed with the verdict may renew motion for JMOL (assuming that right was

preserved) and in the alternative, request a new trialb. If court grants JMOL, ruling on new court would be unnecessary,

i. BUT parties may request “conditional” ruling wherein the court states what its ruling on new trial motion would be if JMOL is reversed by appellate court – EFFICIENCY CONCERN

c. Party wanting to preserve the new trial motion must urge court to grant conditional ruling:i. FAILURE to do so results in an abdication of the right to such a motion

1. Rule 50(c) is use-it-or-lose-it and can be lost – MUST BE PRESERVED7. Dadurian v. Underwriters at Lloyd’s of London (1 st 1986)

a. Facts: Defendant refused to indemnify the plaintiff after he claimed the loss of jewelry that he allegedly owned and was insured under Lloyd’s policy; Jury entered special verdict for plaintiff; Defendant moved for renewal JMOL, or alternatively for a new trial; Defendant appeals asserting that there is sufficient evidence that the jury erred in not concluding that the plaintiff was not truthful in his testimony

b. Holding: Case remanded for new trial;c. Rules:

i. Regarding the purchase of the Jewelry:1. Cannot say as a matter of law that no jury could have properly found that plaintiff had

purchased the jewelry as he claimed2. Cannot say that the verdict on this issue was so far contrary to the clear weight of the

evidence as, by itself, to warrant a new trialii. Regarding the plaintiff’s testimony about the source of funds

1. Plaintiff conceded under oath that some of his statement regarding the funds were not completely accurate, but contended that they were the product of a good faith mistake

2. Only reasonable inference from the evidence is that plaintiff was indifferent to the truth or falsity of his assertions and he knew he was not telling the truth

3. JURY’S HOLDING AGAINST WEIGHT OF EVIDENCE HEREv. Additional Techniques

1. Juror Misconducta. What if interviews with jurors after the judgment reveal that the misunderstood jury instruction,

flipped a coin, or were intoxicated during deliberationsb. COMMON LAW rule was that the affidavits of jurors could never be used to impeach

their verdicti. Rationale:

1. Need for stability of verdicts2. Need to protect jurors from fraud and harassment by disappointed litigants3. Desire to prevent prolonged litigation4. Need to prevent verdicts from being set aside because of subsequent doubts or change

of attitude by a juror5. Concept of the sanctity of the jury room

c. IOWA RULE: Differentiates between intrinsic and extrinsic influence (WE USE)i. Extrinsic Influences: Involve overt acts which may be objectively corroborated or disproved

1. Such evidence is admissible2. Examples:

a. Juror conducting an independent investigation of the factsb. Jury using an illegal method of deliberation

ii. Intrinsic Influences: matters known only to the individual juror1. Not readily capable of being corroborated or disproved2. Examples:

a. Jurors thought processes, motive, misunderstandings, prejudicesiii. FRE 606(b):

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1. Juror testimony not admissible except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror

d. EXAMPLES:i. Intoxication or drug use?

1. Tanner v. United States – Supreme Court held that such evidence was not admissible; “however severe their effect and improper their use, drugs and alcohol voluntarily ingested by a juror seems no more an outside influence than a virus, poorly prepared food, or lack of sleep”

ii. Juror makes racially derogatory remarks to other jurors concerning one of the parties?1. Powell v. Allstate Ins. Co (FL 1995) – because the racially biased remarks were

spoken, not merely thought privately, they constituted “sufficient overt acts” to permit trial court inquiry

iii. Juror gives and incorrect answer in Voir Dire1. McDonough Power Equipment v. Greenwood (1984) – Supreme Court held that

incorrect voir dire answers provide a basis for new trial only in limited circumstances:a. To obtain a new trial in such a situation, a party must first demonstrate

that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause

IX. RES JUDICATA & PRECLUSION: THE FORCE AND EFFECT OF FINAL JUDGMENTSa. Introduction

i. First case refers to the first case in which a court enters judgmentii. Judgment can preclude subsequent litigation in two basic ways, traditionally referred to as res judicata (the thing

is adjudicated; claim preclusion; rule against splitting a cause of action) and collateral estoppel (estoppel by judgment; issue preclusion)

iii. Note that even if a judgment is final and valid, a party may have to sue on the judgment to collect legal remedies’ equitable remedies however are independently enforceable, as the party failing to comply can be held in contempt of court

iv. Is claim preclusion a waivable defense?1. Buchanan v. Dain Bosworth, Inc. – claim preclusion only waived if defendant giver affirmative

indication of waiverv. Stare Decisis v. Res Judicata

1. Stare decisis requires that courts of a particular jurisdiction follow the legal pronouncements of appellate courts in that jurisdiction

2. Stare decisis is concerned with appellate pronouncements on questions of law, while preclusion addresses trial court determinations of issues of law or fact

3. An opinion’s stare decisis effect binds all litigants in all cases in the jurisdiction, while issue preclusion binds only litigants to the particular case (and persons in privity with them)

4. The court that issues the precedent has the discretion to reverse or alter it, whereas there is less discretion with the preclusion rules

vi. Doctrine of Law of the Case v. Res Judicata1. Doctrine of law of the case provides that issues decided in a suit will not be relitigated later in that same

suit2. Law of the case concerns the same issue being raised multiples times in the same action, while issue

preclusion is concerned with raising the same issue in different actions 3. Law of the case is less formal than issue preclusion; a judge is free to depart from an earlier ruling on an

issue when appropriateb. Claim Preclusion (Res Judicata)

i. Generally1. Stands for the proposition that a claimant ay only sue on a single claim or “cause of action” once2. A plaintiff has one chance to vindicate all rights to relief encompassed in a single claim; failure to do so

means that she has lost the right to pursue other aspects of relief encompassed in that claim

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ii. Standard statement of claim preclusion contains three requirements:1. Two cases must involve the same claim (or cause of action)2. The parties to the two suits must be identical or in “privity”; AND3. The first case must have ended in a valid and final judgment on the merits

iii. Scope of a Claim & The Possible Tests 1. Defining the Scope is difficult2. Regardless of what test is used for determining the scope of claim, that claim is personal to each

individual harm; i.e. just because two plaintiffs are harmed in the same transaction, plaintiff 1’s act of brining suit doesn’t preclude plaintiff 2’s suit from being brought separately

3. Use of even the same test on similar facts can lead to opposite positionsa. Single Cause of Action (MAJORITY); transactionally based test

i. Modern trend is to force claimants to package cases more inclusively, along transactional lines

ii. Standard: a judgment in the firt suit precludes you from re-litigating a claim that was litigated in the first and also any claims that could have been litigated in the first suit

1. A party can NOT be barred from a claim that either was not ripe, or could not be presented in the first suit (i.e. due to joinder, destroying diversity jurisdiction,…)

iii. Restatement (Second) of Judgment § 241 – 1. Considers a claim to encompass all rights to relief “with respect to all or any

part of the transaction, or series of connected transactions, out of which the action arose”

2. Transaction is a natural grouping or common nucleus of operative facts3. Stresses a pragmatic approach, focusing on factors such as whether the facts are

closely connected in “time, space, origin, or motivation,…whether taken together, they form a convenient unit for trial purposes,” and whether treating them as a single transaction comports with the expectations of the parties and of business practice

iv. Seems that it would be more efficient;v. The Insurance Exception under Transaction Test

1. In addition, because a strict reading of the transactional test cold preclude an insurer from bringing suit, several states have adopted a transaction test definition for claims simply adopting an exception for such a situation (i.e. where an insured sues for personal injuries and the insurance company indemnifies for the property damages claim, but is now precluded by the first suit) (NOTE primary rights test avoids such hardship)

b. Primary Right Test – right of personal security and the right of property which are invaded by a single wrong give rise to two remedial rights, and further, in giving the reason for the rule, consideration must be given to the fact that where a property right is invaded the title to the property must be shown to be in the plaintiff, whereas there is no such requirement as to personal injuriesi. Carter v. Hinkle (Va Court 1949) – Primary Rights Test

1. Facts: Hinkle involved in a head-on collision with car owned by Smith and operated by Carter; Hinkle brought suit for property damage and was awarded a judgment; Subsequently, Hinkle filed suit for personal injury damages; Carter and Smith moved for summary judgment on defense of claim preclusion

2. Holding: Claim is not precluded 3. Rules:

a. Court adopted the Primary Right Test;b. Difference between personal injury rights and property rights; thus two rights

violated leads to two independent claims4. Gloss:

ii. Reilly v. Sicilian Asphalt – concluded that injury to person and injury to property were essentially different claims and gave rise to two causes of action

iii. Brunsden v. Humphrey – plaintiff first brought suit for property damage, obtained judgment; subsequently sought to bring suit for personal injury; COURT held that the wrong consists in the damage done, not in the act of driving

1. Dissent – argues that such a distinction is not logical; along that reasoning, why couldn’t a plaintiff sue first for injury to one leg and then later for the injury to the other

c. Sameness of Evidence Test –

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i. Courts assess whether the same evidentiary showing would justify recovery for the claimant in both suits;

1. If so, the cases involve the same claim2. It is not always clear, however, how much evidentiary overlap is required for the

assertions to be considered a single claim4. In Contract Cases

a. Generally, courts conclude that a claim for breach of a debtor contract includes all payments owed at the time the claimant files suit

b. So if two payments were past due and the creditor sued for only one, claim preclusion would block separate suit for the other

c. However, if a payment becomes past due after judgment entered in the first claim, not precluded because that claim couldn’t have been brought under the first (not ripe)

iv. Who is Claim Precluded? (Only same parties or persons in privity)1. Parties or Persons in Privity

a. Claim preclusion requires that the parties to the two suits be the same or in “privity” with a litigant in the prior case

b. Martin v. Wilks - The due process clause generally requires that one cannot be bound by a judgment unless she has had an opportunity to appear and litigate

2. Courts use “privity” as a shorthand for those relationships that justify binding a nonparty; Two ways: a. First a nonparty is bound by a judgment if she was “represented” by another party

i. Trustee represents the beneficiariesii. Class action suits, where the class is properly certified and the representation is adequate

iii. Guardian, executor, or other fiduciary represents her beneficiaries in litigation, so long as she brings suit in her representative capacity

b. Second, substantive legal relationships between a litigant and a nonparty will justify binding the nonpartyi. An action by a party to a contract regarding contract rights may bind a person to whom that

party assigns the contract rightsii. Indemnitor (such as an insurance company) may be bound by a judgment against an

indemnitee (such as the insured)iii. Decedent’s estate may be bound by a judgment against the decedent

c. Restatement of Judgments § 41(2) – Expressly provides that a nonparty represented by a litigant “is bound by the judgment even though [she] does not have notice of the action, is not served with process, or is not subject to service of process”

3. Configuration of the Partiesa. Even assuming the parties to the first and second actions are the same (or closely related enough

to justify preclusion), claim preclusion generally requires that they have the same litigation posture in both cases

b. It is not enough simply to say that both cases involve the same partiesc. MAJORITY of jurisdictions, both the first and second cases must be brought by the same

claimant against the same defendanti. I.e. the second suit must involve the same parties in the same configuration

ii. This can create a risk of inconsistent results, howeveriii. NOTE: that res judicata can and usually does have the effect of making non-compulsory

claims effectively compulsory to avoid losing them. (Especially in places who have not adopted Rule 13(a))

d. Because of concerns of inconsistent results, MAJORITY of jurisdictions have adopted FRCP 13(a):i. Joinder

1. Compulsory Counterclaim Rule – 13(a) a. This requires a person properly joined as a party to a suit to assert any

transactionally related claims against other persons joined (counterclaims,…)2. Permissive Counterclaim Rule – 13(b)

a. Allows a defendant to assert transactionally unrelated claims against the plaintiffb. When the claim is permissive, the party may file it in the pending action, or she

may assert it in a separate actionc. If she does assert it, however, she is a “claimant” on that contract claim; claim

preclusion will prevent her from suing again on the contract claimv. Valid and Final Judgment On the Merits

1. Generally

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a. Merger: where court entered final judgment in favor of the claimant in the first case, claim preclusion operates as a mergeri. Upon entry of such a judgment, the claim is extinguished and merged into the claimant’s

judgmentii. While claim preclusion precludes her from reasserting the claim, she can recover by suing on

the judgment b. Bar: Courts refer to the claim preclusion effect of a final judgment for the defendant as “bar”

i. Claimant who lost the first case is barred from reasserting the claimii. These situations raise the most serious complications concerning whether the judgment is on

the merits or, under modern principles, to be treated as an adjudication supporting preclusion

2. Validitya. Courts accord claim or issue preclusion only to valid judgmentsb. Validity refers to the competence of the court, and requires basically that it have had SMJ

and PJi. If a plaintiff sues for medical malpractice, but fails to proffer an “affidavit” of good cause (a

sworn statement supporting her claim) the Supreme Court permitted the plaintiff to proceed with the second action, holding that the failure to satisfy the condition precedent of filing the affidavit constituted a lack of jurisdiction under Rule 41(b).

c. A judgment by a court having SMJ and PJ is valid, even though it may have been wrong on the merits

d. Federated Dept. Stores v. Moitie (SCt 1981) – “the res judicata consequences of a final, unappealed judgment on the merits [are not] altered by the fact that the judgment may have been wrong or rested on a legal principle subsequently overruled in another case”

3. Finalitya. Preclusion attaches only to final judgments;

i. Thus individual rulings during the court of a litigation are not entitled to preclusive effect, since they may be revisited by the judge before decision on the case as a final matter

b. Federal courts conclude that if a judgment is entered and then appealed, during the interim, the judgment is still final for purposes of preclusioni. State courts are divided on this issue

4. One the Meritsa. Traditionally, courts have accorded preclusion effect only to judgments “on the merits”

meaning judgments “based on the validity of the plaintiff’s claim rather than on a technical procedural ground”

b. Summary Judgments and Directed Verdicts constitute decisions on the meritsc. Most federal and state courts will allow claim preclusion even where the case has been

dismissed without mention of prejudice for failure to state a claim i. ESPECIALLY, where party has been given leave to amend and did not do so

ii. Rule 41(b)d. Dismissing due to lack of PJ or SMJ or venue, IS NOT a final judgment on the meritse. Virtually, any judgment in favor of the claimant is considered on the merits (wouldn’t be

likely to find for claimant without considering the merits)f. When the claimant loses, however, it is more difficult to determine:

i. Restatement Second of Judgments “does not require that a judgment against the plaintiff be on the merits to be preclusive”

ii. It is sufficient that in the first suit, there was an opportunity to get to the meritsiii. Restatement §20(1)(a) provides a blanket rule that any judgment against the claimant, except

one “for lack of jurisdiction, for improper venue, or for nonjoinder or misjoinder of parties” is accorded claim preclusive effect

iv. FR 41(b) adopts same approach, dictating that any judgment against the claimant, with the exceptions similar to the Restatement “operates as an adjudication upon the merits”

v. Semtek International v. Lockheed Martin Corp – 1. Supreme Court held that a second case cannot be brought in the same federal court as

the original case2. Whether the dismissal has claim preclusionary effects that prohibit the claimant from

asserting the claim any court is determine by federal common lawa. If SMJ was based on diversity jurisdiction, the determination would incorporate

state law

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b. Thus an involuntary dismissal of a diversity case would bar subsequent assertion of the same claim in a state court in MD only if CA law so provides

3. Under both Rule 41(b) and the Restatement, the court in the first case is free to provide that its judgment will not operate on the merits; usually courts do this by providing that the dismissal is entered “without prejudice”

vi. Exceptionsa. Restatement (Second) of Judgments § 26(1):

i. Doctrine of claim preclusion does not operate if:1. parties have agreed in terms or in effect that he plaintiff may split his claim, or the

defendant has acquiesced therein; or2. The court in the first action has expressly reserved the plaintiff’s right to maintain the

second action; or3. The plaintiff was unable to rely on a certain theory of the case or the seek a certain

remedy or form of relief in the first action because of the limitations on the subject matter jurisdiction of the courts or restriction on their authority to entertain multiple theories or demands for multiple remedies or forms of relief in a single action, and the plaintiff desires in the second action to rely on that theory or to seek that remedy or form of relief; or

4. The judgment in the first action was plainly inconsistent with the fair and equitable implementation of a statutory or constitutional scheme, or it is sense of the scheme that the plaintiff should be permitted to split his claim; or

5. For reasons of substantive policy in a case involving a continuing or recurrent wrong, the plaintiff is given an option to sue once of the total harm, both past and prospective, or to sue from time to time for the damages incurred to the date of suit, and chooses the latter course; or

6. It is clearly and convincingly shown that the policies favoring preclusion of a second action are overcome for an extraordinary reason, such as the apparent invalidity of a continuing restraint or condition having a vital relation to a personal liberty or the failure of the prior litigation to yield a coherent disposition of the controversy

vii. Procedurally1. COURT WILL NOT SUA SPONTE FIND PRECLUSION2. Must plead preclusion in writing, usually either in answer or in motion for summary judgment, provide

a certify copy of the first judgment, and usually some portion of the transcript (if needed to show issue preclusion)

3. Under Rule 8(c), preclusion is listed as an affirmative defensea. Thus is it is NOT pleaded in the answer, it is waived

c. Issue Preclusion (Collateral Estoppel)i. Generally

1. Prevents re-litigation of particular issues that were actually litigated and determined in the first case2. More narrow than claim preclusion; if claim preclusion bars the second suit, there it no need to consider

issue preclusion3. Five Question Standard for Issue Preclusion:

a. Was the same issue determined in the first case?b. Was the issue actually litigated?

i. Was there a fair and full opportunity to litigate?1. Look to court procedures

ii. Was there an incentive to litigate?c. Was the issue essential to the judgment in the first case?

i. Could it be appealed?d. Was the holding on that issue embodied in a valid, final judgment on the merits?e. Against whom may preclusion be asserted?f. By whom may preclusion be asserted?

ii. Same Issue Actually Litigated and Determined1. Generally

a. May require to second court review record from the first case in some detail.b. O’Connor v. G&R Packing Co – teenager injured while trespassing in a railroad yard;

i. First case, judge ruled for defendant and noted that boy disobeyed statutes and also deliberately and needlessly exposed himself to a known danger

ii. Plaintiff brought second case against a different defendant, who sought preclusion on the issue of boy’s contributory negligence

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iii. Court : while language seemed to address contributory negligence, was not issue precluded because statement could also be reflective of the lack of defendant’s duty to the boy

1. Factors : words contributory negligence not used, trial court couldn’t have intended this, language didn’t indicate consideration of boy’s age, experience, intelligence – not determinate of contributory negligence

2. Scope of the Issuea. Scope of the issue may be different depending upon who the judgment was entered in favor ofb. Restatement of Judgment §27 – states that the plaintiff is issue precluded on any issue that P

could reasonable have been expected to have raised in support of her claim in the first actionc. But when judgment was for the defendant, the scope of the issue precluded is much narrower

3. Cromwell v. County of Sac (1877) – a. Facts: Action on four bonds, each for $1000, and four coupons for interest, attached to them,

each for $100; Defendant relied upon estoppel of a judgment rendered for county in a prior action brought by Smith upon certain earlier maturing coupons on the same bonds; Defendant supplied proof that Cromwell was at the time the owner of the coupons in the Smith action, and that the action was prosecuted for his sole use and benefit.; In the former action, it was determined that the bonds were fraudulently issued and therefore, not valid

b. Holding: No Issue Preclusion aside from fraudulent issuancec. Rules:

i. A judgment estops not only as to every ground of recovery or defense actually presented in the action, but also as to every ground which might have been presented

ii. But where the second action between the same parties is upon a different claim or demand, the judgment in the prior action operates as an estoppel only as to those matters in issue or point controverted

iii. Was the Issue Determined Necessary to the Judgment?1. Generally

a. Winters v. Diamond Shamrock – involved issue preclusion from a judgment that was not appealablei. First case, court had held an action not removable and remanded it to state court

ii. Second case, the court refused to give issue preclusive effect to the finding of non-removability, because remand orders are not appealable

2. Problem of Inconsistent or Alternative Findingsa. Restatement (Second) of Judgments §27 – denies preclusive effect to both “alternative

determinations” unless one or both are later affirmed on appealb. Rationale:

i. May not have been as carefully considered as it would if had been necessaryii. Losing party may be dissuaded from doing so because of the likelihood that at least on of

them would be upheld and the others not even reachedc. Courts are divided on this issued. Some courts take a flexible approach, looking at the facts to determine whether it would be

proper to permit issue preclusion on alternative findingsi. Malloy v. Trombley – first case found defendant was not negligent and further found that

“although unnecessary to a decision herein” that the plaintiff was barred by contributory negligence; Court of Appeals upheld issue preclusion of CN on second action

1. “Court was impressed that the thorough and careful deliberation by the trial judge showed that the alternative holding was not a casual finding

e. Raven Hanson says both should carry preclusive effects3. Rios v. Davis (TX 1963) –

a. Facts: First claim, all parties were found to be negligent (Popular v. Davis v. Rios); judgment for Davis and for Rios; Second suit, Rios ----- Davis

b. Holding: Judgment for Davis reversed; No Issue preclusion – not necessary findingc. Rules:

i. Issue preclusion is proper only if the issue litigated and decided was essential to the judgment

ii. A finding of a particular fact is not res judicata in a subsequent action, where the finding not only was not essential to support the judgment, but was found in favor of the party against whom the judgment was rendered, and, if allowed to control, would lead to a result different from that actually rendered.

iii. It is the judgment, and not the verdict or the conclusions of fact, filed by a trail court which constitutes the estoppel, and a finding of fact by a jury or a court which does not become

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the basis or one of the grounds of the judgment rendered is not conclusive against either party to the suit.

iv. Defensive Use - Against Whom May Issue Preclusion be Asserted?1. Only applies against persons in first suit or in privity with person ins first suit; same standard as

claim preclusion; ANDa. Several relationships are sufficiently close enough to privity to justify preclusion :

( Southwest Airlines v. Texas International Airlines ) i. A nonparty who has succeeded to a party’s interest in property is bound by any prior

judgments against that partyii. A nonparty who controlled the original suit will be bound by the resulting judgment

iii. To have control of litigation requires a person have effective choice as to the legal theories and proofs to be advanced in behalf of the party to the action

1. He must also have control over the opportunity to obtain review (R JX §39, Comment)

2. Montana v. United States – a contractor on a federal dam project challenged a state gross receipts tax arguing that it discriminated against the US and those who contract with the US;

a. US was not a party, but controlled virtually every aspect: required claim to be brought, paid attorneys fees, reviewed and approved complaint, directed an appeal, submitted appellate briefi. Contractor lost and US proceeded to file its own suit against the state, raising

same challengeb. Court Held : US was bound by preclusion from the first case, concluding that

while not a party, the US plainly had a sufficient “laboring oar” in the first caseb. Virtual Representation : Aerojet-General Corp. v. Askew (S Ct 1975)

i. “Under the federal law of res judicata, a person may be bound by a judgment even though not a party if one of the parties to the suit is so closely aligned with his interests as to be his virtual representative”

ii. I.e., government may represent private interests in litigation through virtual representationiii. Notion of Accountability added: Virtual Representation “demands the existence of an

express or implied legal relationship in which parties to the first suit are accountable to nonparties who file a subsequent suit raising identical issues” Pollard v. Cockrell

iv. Tyus v. Schoemehl (8th Cir. 1996) – court held that a group of plaintiffs who had dropped out of a prior case were bound by the adjudication in that case because they had been virtually represented by the remaining plaintiff

c. Restatement (Second) of Judgments § 41(1): i. A person who is not a party to a action but who is represented by a party is bound by and

entitled to the benefits of judgment as though he were a party. A person is represented by a party who is:

1. The trustee of an estate or interest of which the person is a beneficiary;2. Invested by the person with authority to represent him in an action; or3. The executor, administrator, guardian, conservator, or similar fiduciary manager of an

interest of which the person is a beneficiary; or4. An official or agency invested by law with authority to represent the person’s

interests; or5. The representative of a class of persons similarly situated, designated as such with the

approval of the court, of which the person is a member2. Hardy v. Johns-Mansville Sales Corp (5 th 1982) -

a. Facts: Asbestos case; one plaintiff won judgment against six manufacturers; Borel v. Fireboard Paper Prod. Co.; Here, different plaintiffs sued same defendants plus additional manufacturers; Trial court held plaintiff were entitled to issue preclusion as to various matters concerning liability, including the defendant’s breach of a duty to warn workers of the dangers of asbestos

b. Holding: No issue preclusion to the non-Borel defendantsc. Rules:

i. Privity is not established by the mere fact that persons may happen to be interested in the same question or in proving the same state of facts

v. Offensive Use - By Whom May Issue Preclusion be Asserted?1. Mutuality and Exceptions

a. Mutuality dictates that issue preclusion can only be used by someone who was a party (or in privity with a party) to the first case

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b. Rationale: Someone who cannot be hurt by a prior judgment should not be entitled to take advantage of it

c. TODAY, courts have moved away from the requirement of mutuality; widespread movement to permit nonmutual issue preclusion – assertion of issue preclusion by someone who was not a party to the first case

d. NOTE come courts retain the requirement; of those, a majority have adopted at least the narrow exception and some have adopted both

e. Exceptions to Mutuality :i. Narrow Exception: (where first case is v. employee who prevails) permitting an employer to

assert issue preclusion on the finding of a first case that the employee was not negligent ii. Broad Exception: (where first case v. the employer who wins) allowing employee to assert

nonmutual preclusion regarding his negligence because he could not seek indemnification from employer

2. Rejection of Mutuality for Defensive Usea. Some courts have openly rejected mutuality outright

i. Note that in Blonder-Tongue and Bernhard, the person asserting claim preclusion was the defendant; so “nonmutual defensive issue preclusion” is permissible

ii. Bernhard v. Bank of America – 1. Elderly woman permitted Cook to write checks on her behalf; he wrote one to himself

for a large sum of money; she died and he became executor; her relatives sued to challenge the check; court held he had authority and that money was a gift; judgment for Cook

2. Cook resigned as executor and woman’s daughter assumed role; she sued Bank who handled account and paid the check

3. Court Held : Bank was entitled to issue preclusion on the permission to write check despite fact that the mutuality provision would not allow preclusion

a. “Many courts have abandoned the requirement of mutuality and confined the requirement of privity to the party against whom the plea of res judicata is asserted.”

b. “Some have held that privity is not required where the liability of the defendant asserting the plea of res judicata is dependent upon or derived from the liability of one who was exonerated in an earlier suit brought by the same plaintiff upon the same facts.”

iii. NOTE: Berhard simply rejects the mutuality requirement; many courts have followed this lead

1. Blonder-Tongue Laboratories v. University of Illinoisa. Patent holder sued D1 alleging patent infringementb. Court held plaintiff’s patent was invalid and entered jx for D1c. Plaintiff then brought suit against D2 for same patentd. Lower courts refused to grant D2 claim preclusion on grounds of mutualitye. Supreme Court reversed and granted issue preclusion on the validity of P’s

patent:i. Rejected Mutuality Requirement:

- Rationale: crowded dockets; efficient judicial administration…ii. In any lawsuit where a defendant, because of the mutuality principle, is

forced to present a complete defense on the merits to a claim which the plaintiff has fully litigated and lost in a prior action, there is an arguable misallocation of resources

iii. In these circumstances, so long as the party against whom issue preclusion is being used was given a fair and full opportunity to litigate the issue, preclusion is allowed and justified

3. Rejection of Mutuality for Offensive Usea. Generally

i. Option Effect : when multiple plaintiffs injured in same accident; can just sit back until first plaintiff is successful and then the rest can simply use issue preclusion to recover on the basis of the first plaintiff’s success and findings

1. “Plaintiff shopping” – advent of nonmutual offensive preclusion induced the plaintiff shopping theory wherein if a group of persons injured, find the “best case”

ii. Nonmutual offensive issue preclusion is not available in litigation against the US.1. Government may litigate the same issue in numerous cases

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2. Any other holding would require government to appeal every adverse ruling in an effort to avoid preclusion – Inefficient use of Resources

b. Parklane Hosiery v. Shore (1979) i. Facts: Option Effect: when multiple plaintiffs injured in same accident; can just sit back until

first plaintiff is successful and then the rest can simply use issue preclusion to recover on the basis of the first plaintiff’s success and findings

1. District Court found that proxy statement was false and misleading and entered jx for SEC; Court of Appeals affirmed

2. Parklane brought stockholders class action against Shore alleging that they had issued a false and misleading proxy statement in connection with a merger, violated federal codes

3. Parklane sought to use issue preclusion to estop Shore from relitigating issue regarding the false proxy….

ii. Holding: Issue preclusion granted; Parklane may estop Shore from Arguing Issueiii. Rules:

1. In cases where a plaintiff could have joined in the earlier action or where, either for the reasons discussed above or for other reasons, the application of offensive estoppel would be unfair to a defendant, a trial judge should not allow the use of offensive collateral estoppel.

a. Ruling here does not prohibit use of offensive preclusion, but grants trail courts broad discretion to determine when it should be applied

iv. Note: NO issues weighing against estoppel present here:1. Plaintiff couldn’t have easily joined in suit with SEC2. In first cases, defendant had every incentive to argue and litigate the issue fully3. Judgment in SEC action was not inconsistent with any previous decision4. No variance in procedural opportunities to indicate that this case might come out

differently (i.e., variances in discovery procedures,…)d. Problems of Federalism

i. Generally1. Two provisions are applicable:

a. Full Faith and Credit Clause, Article IV §1 i. Constitutional provision is more narrow and covers only state to state cases and requires

every state court to give full faith and credit to the judicial proceedings of every other stateb. 28 USC § 1738

i. Statutory provision covers state to state, AND state to federal cases and requires that every state court and federal court to give “the same full faith and credit to a judgment as it would receive in the judgment-rendering state

ii. State-to-State1. So long as State A had jurisdiction, its judgment is entitled to full faith and credit in State B, even if the

judgment was wrong on the merits2. Losing parties’ only option is to appeal in State A if unhappy with judgment

iii. State-to-Federal1. § 1783 requires a federal court in State B to give full faith and credit to a valid judgment of State A; is

functionally equivalent to the state to state situation2. Restatement (Second) of Judgments § 86 (MAJORITY) – states that § 1783 requires a second court to

give to the state judgment the same effect – no more and no less- than the [judgment-rendering] court would give it.

a. MAJORITY - Same means sameb. Here, a federal court must apply the preclusion law of the judgment-rendering state

3. A few courts conclude that the second court is free to diverge somewhat from the preclusion rules of the judgment rendering state; Two possibilities:

a. One can argue that full faith and credit encompasses only the “central doctrines of claim and issue preclusion” and not “every minute detail”i. Here, full faith and credit would be limited to the rules that support the core values of

finality, repose, and reliance, as well as some of the rules that facilitate control by the first court over its own procedure

ii. Does not command obedience to other aspects of preclusionb. There is some support for the conclusion that § 1738 does not preclude the second court from

giving a judgment a greater preclusive effect than it would receive in the first court

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iv. Federal-to-State1. Neither the Constitution nor the statutory provisions addresses this problem2. State courts must respect federal judgments3. State court would ascribe to the judgment of a federal court the same preclusive effect that the federal

court would4. FEDERAL QUESTION : So a federal law on preclusion would apply IF the case had invoked federal

question jurisdiction5. DIVERSITY :

a. Semtek International v. Lockheed Martin Corp – Supreme court held that the federal common law of preclusion would apply in a diversity case; i. BUT in most instances that federal law would follow state law on preclusion

ii. So judgment of CA federal court would be preclusive in a subsequent MD case ONLY IF CA law would dictate that result

v. Federal-to-Federal1. FEDERAL QUESTION: If the first case was in federal court based upon federal question jurisdiction,

the courts assume that federal common law governs the preclusion question2. DIVERSITY:

a. Erie requires the federal court to apply state substantive law in diversity casesb. Restatement (Second) of Judgments §87 – Federal law should governc. Others disagreed. Semtek International v. Lockheed Martin Corp – Supreme court held that the federal common

law of preclusion would apply in a diversity case; i. BUT in most instances that federal law would follow state law on preclusion

X. APPEALa. Introduction

i. Cannot appeal anything that is not a final judgmentii. §1291 – “final decision” = final judgment

1. Has been adopted in all 50 states to varying degreesb. Timing of Appeal

i. Must be made within 30 days of the entry of a final judgment1. When a 10 day motion under Rule 58 or 59 is made, the judgment is not considered final and the time

for appeal does not start running until the judge rules on such motionsc. Appellate Jurisdiction in the Federal Courts

i. 28 U.S.C. § 1291 – Final Judgmentii. Exceptions to the Final Judgment Rule

1. Collateral Order Doctrinea. For example – Qualified Immunityb. Three Requriements:

i. Collateral from the Judgmentii. Important or Unresolved Issue

iii. Be conclusively decided at trialiv. Effectively unreviewable if not now

1. Where the appeal comes too late to serve the purpose2. 28 U.S.C. § 1292 – Injunctions are always appealable

a. § 1292(a) – injunctive reliefb. §1292(b) – by trial court certification

i. Permits an interlockatory appeal to appellate court; Two requirements 1. Trial court must send2. Appellate court MUST also accept

ii. Both levels exercise discretion on the question of sending or acceptingiii. VERY RARE

3. Rule 54(b)a. Where there were multiple parties and one part has been dropped out by summary judgment etc.b. Such parties may not immediately appeal, because that is not a final judgment when not all

claims have been resolvedc. Trial judge may, however, certify the matter to the appellate courts when

i. It is a free standing claim (not issue)4. Mandamus

a. Where the trial judge has usurped authority

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b. Appellate court orders the judge to specifically do somethingi. WW VOlkswagen

c. VERY RARE

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