Reading Notes:

Assignment 1:

Subrin pp. 2-9

2. What is Civil Procedure?- civil – means noncriminal

o remedies include monetary compensation or an order directing the D to do or stop doing something- procedure – is meant to contrast with substance

o concentrates on the methods by which the substantive law can be enforced, typically y courtso determines how disputes are challeneled into legal form

- civil procedure course concerns the premises and operations of the adversarial system of justice, the scope of due process, the ethical issues posed for a lwayer entrusted with representing the interest of another, and the proper balance between efficiency and fairness

3. Meeting the players and the Institutions- procedural law converts a conflict over norms and breach into a case amenable to trial- translates disputants into partiesa. parties- plaintiff – complaining party- defendant – those names in terms of fault or responsibility- FRCP permit Ps and Ds to construct lawsuits that vary the bipolar two-party lawsuit structure through devices such as joiner,

intervention, class action, and interpleaderb. jurisdiction- jurisdiction refers to the power of a tribunal over a case

o has two dimensions: jurisdiction over subject matter and jurisdiction over the person- subject matter jurisdiction – court must be authorized by the Constitution and statues to decide cases dealing with this kind of

subjecto federal courts can only hear kinds of lawsuits specified by Congress under two categories: suit rasises a federal

question under federal statutes or the U.S. Constitution, or the suit involves parties satisfying diversity of citizenship (P and D are citizens of dif’t states or one of them is a citizen of a foreign country) AND more than a statutory min. amt. is in controversy (currently 75K)

o state trial courts include some with general jurisdiction – able to decide most caseso trial courts – her the initial dispute and presentation of evidenceo appellate courts – review the record developed in course of trial in light of claims o error in legal interpretation or

application- personal jurisdiction – court selected by P must have authority to direct the D to appear and to bind the D with a judgmentc. Remedies- remeidies may include money damages to compensate the p, money damages to punish the D, declaration of rights and duties

of parties; and orders called injunctions that direct D to stop bad conduct or to start new conduct4. Sources for the Rules and Doctrines

- Congress authorized S.C. to prescribe rules to govern the conduct of federal district courts and courts of appeals as long as those rules do not “abridge, enlarge or modify any substantive right”

- judicial Conference – the Chief Justice of the S.C., Chiefe judge of each court of appeals, one judge from each regional circuit, and the chief judge of the court of international trade

o this judicial conference appoints a standing committee that screens proposed ruleso also appoints advisory committees to focus on particular topics, these committees are comprised of judges,

practitioners, and scholarso these committees report to standing Committee on practice and procedure, reports to judicial conference, who

submits rule changes to S.C., who transmits rule to Congress, who can reject proposal or let them become ruleso Congress can also reform rules on own

- doctrines governing the remedial powers of the courts grow from common law practices and statutory interpretation

Due Process Clause:Green v. LindsaySupreme Court of the U.S.456 U.S. 444 (1982)

Terms:

- Forcible Entry - n. Seizing a house, structure, or land through physical force or serious threats against the occupants. Such threats can include breaking windows or doors, using terror to gain entry, or forcing the occupants to vacate by threats or violence.

- unlawful detainer – 1) The act of wrongfully remaining in possession of property (as after expiration of a lease) 2) An action intended to remedy unlawful detainer by restoring possession of property to its owner called also unlawful detainer action

- service of process - Service of process is the term given to legal notice of a court or administrative body's exercise of its jurisdiction over individuals who are the subject of proceedings or actions brought before such court, body or other tribunal.

- sum·mons - A call by an authority to appear, come, or do something. A notice summoning a defendant to appear in court. A notice summoning a person to report to court as a juror or witness.

Facts:- D served notice on P door that the P needed to appear in court- P says never received posted summonses, and did not learn of eviction proceedings until they were served with writs of

possession, executed after default judgments had been entered against them and after opportunity for appeal had lapsed- Ps filed class action suit seeking delaratory and injuctive relief saying they were not given due process of law under 14th am.

Procedure:- Ds are appealing the decision - Ds motion for summary judgment was granted by district court- Ct. App. For 6th circuit reversed grant of summary judgment in favor of Ps and remanded case for further proceedings, b/c

“cases calling for a more realistic appraisal of the adequacy of prcess provided by the state”o Court held that the notice provided was constitutionally deficient

- now at S.C.Issue:

- whether the statue, as applied to tenants in a public housing project, fails to afford those tenants the notice of proceedings initiated against them required by the Due process Clause of the 14th amendment

Rule:- in initial case - Kentucky statue provides that in forcible entry or detainer actions, service of process may be made under

certain cirum. by posting a summons on the door of a tenant’s apartment- in this case “ fundamental requisite of due process of law is the opportunity to be heard and the right to be heard has little

reality or worth unless one is informed that the matter is pending and can choose for himself whether to appear or default, acquiesce or contest

- fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections

Holding:- by failing to afford the Ps adequate notice for the proceedings against them before issuing final orders of eviction, the State

has deprived them of property w/o the due process of law required by the 14th am. - Judgment of Ct. of appeals is affirmed

Reasoning/Analysis:- most cases, short of providing personal service, positng notice on a door is constitutionally acceptable and appropriate- merely posting notice on apartment door does not satisfy min. standards of due process, since its not reliable- mail provides an efficient and inexpensive means of communication and should also be considered- sufficiency of notice must be tested with reference to its ability to inform people of the pendency of proceedings that affect

their interestsDissent: Justice O’Connor and Rehnquist

- question is does Kentucky’s statue meet the standard of “notice reasonably calculated, under all circumstances to apprise interested parties of the pendency of the action”

- means for making service of process must be prompt and certain, otherwise the principal purpose of a forcible entry and detainer action could be thwarted before the judicial proceedings even began

- the conflicting testimpny falls short of what Court should require before rushing to scrap Kentucky’s considered legislative judgment that , posted notice is an appropriate form of service of process ofr forcible entry and detainer actions, as a last resort

Assignment 2:

Rules of Civil Procedure:

Rule 1:Scope and Purpose of Ruleso Rules govern the procedure in the U.S. for suits which are civil in nature.

Rule 2: One Form of Action- There shall be one form of action to be known as “civil action”

Rule 3: Commencement of Action- A civil action is commenced by filing a complaint with the court

Rule 4: Summonsa. Form – summons signed by clerk and directed to defendantb. Issuance – After filing complaint P may present a summons to clerk for signature and seal and then it is for the

defendantc. Service with Complaint; by Whom made –

1. Summons shall be served with complaint and P is responsible of having it done w/in time in subdivision (m)2. Service may be made by any person who is not a party and 18+ yrs. of age, but at request of P the service can be

done by U.S. marshall or court officerd. Waiver of Service; Duty to Save Costs of Service; Request to Waive –

1. D who waives service doesn’t waive obj. to venue or jurisdiction2. D who is subject to service under subdivision (e)(f) or (f) has duty to avoid unnecessary costs of serving the

summons, P can waive service of summonsa. Shall be in writing addressed to Db. Dispatched through first-class mailc. Accompanied by copy of complaint and id courtd. Inform D, of consequences of compliance and failure to complye. Set forth date request is sentf. Allow D reasonable time to return waiverg. Provide D with extra copy of notice as well as prepaid means of compliance in writing

- if D located in U.S. fails to copy with waiver request made by P in U.S. the costs of service go to D3. D who returns wavier has 60 days to answer complaint4. when P files waiver of service, action shall proceed as if summons and complaitn had been served at time of

filing waiver5. costs to be imposed on D for failure to comply with waiver request include costs effective service, reasonable

attorney’e. Service Upon Individuals w/in a judicial district of the U.S. – service of ind. With no waiver, may be done in any district of U.S.

1. service must be pursuant to state law in which district court is located, or where service is effected2. by delivering copy of summons and complaint ind., leaving copies at dwelling w/ person of suitable age and discretion, or to person authorized by law to receive process

l. Proof of Service – person effecting service shall make proof of the service to court m. Time limit for service – if service of summons and complaint is not made upon a D within 120 days after the filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff shall dismiss action w/o prejudice

Subrin pp. 159-167

B. The Stages and essential concepts of a civil litigation- cognizability – whether the law will give relief - cause of action – underlying concept the lawyer would use in reaching a result (aka claim showing that the pleader is entitled to

relief)o shorthand for what events or circumstances must have taken place before a court will grant reliefo there can be different theories under one cause of action

- elements – components in a cause of action or claim- same cause of action may permit multiple theories- personal jurisdiction - if litigation is chosen, lawyer must decide in which state the D can be sued

o forum state – state in which a court sits and where a suit has been or will be brought- subject matter jurisdiction - have to decide which court to commence suit

o general subject matter jurisdiction – one trial court has ability to hear most types of caseso limited subject matter jurisdiction – federal courts have this

federal question and diversity of citizenshipo concurrent subject matter jurisdiction – both state and federal courts can have jurisdiction

- venue – where within the state or within the federal system the case can be brough, question is geographic- Ds must be appropriately notified of the suit- Draft a complaint- Check the applicable statute of limitations- Decide whether you can and desire to file a jury claim - Ps lawyer must consider joinder issues at beginning of case – raise two causes of action – can be of claims or parties- D can bring a motion to dismiss

- Ds answer must admit or deny allegations- D must state affirmative defenses- D can also state a counterclaim against the P- D can bring a complaint for indemnification – impleader or third-party practice – D says someone is now liable to them- Co-Ds can have cross-claims- After prelim. Motions go into discovery, some of which is mandatory disclosure, interrogatories, depositions, etc. - Next you have burdent of production (P has sufficient evidence for claim) and burden of persuasion (produced a sufficiency of

evidence to permit reasonable jurors to find that each element is true)o w/o this the D can ask for directed verdict b/c of insufficient evidence

- P must persuade fact finder w/ a preponderance of the evidence- D can file motion for summary judgment if P doesn’t have sufficient evidence to meet production burden- D can also file judgment notwithstanding the verdict, new trial motions, motion to vacate judgment- Several stages of case management before trial – i.e. pretrial conferences, docs to focus case, etc. - Trials begin with opening statmets, Ps direct exam and Ds cross, closing args, judge instructs jury, verdict becomes judgment- Res judicata – can’t file case again after loosing- Claim preclusion – can’t split claim

Assignment 3:Course packet 14-19

A. Rival Procedural SystemsCommon Law Pleading in Theory and Practice

a. Why use iti. Exercises profound influence on the way judges and lawyers thing, not just about pleading, but about the

legal system itself1. system of common law pleading expressed a system of categories, way of thinking about legal

rights and injuries to those rights that has persisted in legal systems deriving from the common law

b. the idea behind the common law pleading remains attractivei. if people can agree about the nature of their dispute, resolution may come much faster and cheaper

c. The development of common law pleading reflected three idea of profound importance: that government power is shared among several different jurisdictions, none of which has plenary power, and that courts have the power to reshape law.

d. The First Premise of Common Law: Divided Judicial Poweri. Common law comes from Medieval England which had numerous courts systems: local, operated by

aristocracy, & others by various ecclesiastical authoritiesii. King’s court, where common law comes from, were everyday courts

iii. A “pleading” explained why the case was for the royal court1. Royal courts were courts of limited and extraordinary jurisdiction, and the pleader had to explain

why his case lay w/in royal power – and these categories were fixediv. Jurisdiction over crimes against the pace of the realm opened the door for certain forms of civil liability

1. “trespass vi et arims” – signifies any wrong, not just the unauthorized entry of land, and “with foce and arms” or “the D was armed and violent”

a. “quare clausum fregit” – by which he broke the close (invaded land)v. Catalogue of writes became a haphazard catalogue of substantive law (categories the court would concern

themselves with)1. trespass – several categories2. debt – recover sums owed3. covenant – remedy breaches of written, sealed contracts4. ejectment – recover land unlawfully occupied5. trover and replevin – recover for unlawful takings of personal property6. assumpsit – meanin he or she promise and use to recover for breaches of informal, gnereally oral

contractsvi. Writs

1. this was a command to sheriff to summon D for P’s grievance2. entire ensuing procedure depended on which form of action the P had chosen3. common law had separate procedures for diff’t writs4. P had to decide which writ their claim fit, if it fit several writs, and which would be the best course

of action

e. The Second Premise: Framing the Issue for Decision (What to do with the case)i. Common law pleading aimed at separating disputes that focused on the law, from disputes that focused on

fact. 1. Law disputes – decided by judges2. Fact disputes – decided by juries

ii. Pleadings permitted a limited # of simple responses to allegations1. Dilatory Pleas – delayed action

a. Not Here – challenged court jurisdictionb. Not now - pleas in suspension – plaintiff’s right to bring action until problem was

resvoledc. Not like this – pleas in abatement – some defect in the pleading (did’t namean absent

party)2. Preemptory pleas – grappled with merits of case

a. So What? - Demurrer – conceded the truth of the opponent’s factual allegations but challenged legal sufficiency

b. Not true – Traverse – yes legal sufficiency, but it’s a liec. Yes, but - plea of confession and avoidance – yes legally sufficient and te facts are truth,

but added other facts that changed significance

Chancery & Its Procedure: the Procedural Alternativea. Court of Chancery is another Royal Court

i. where litigants could seek relief for mistakes made in common law courts (ie incomplete factual record, etc.)

ii. leg by a Chancellor – powerful royal official who had a number of imp. Political dutiesiii. job was to handle cases that were not adequately handles by the ordinary royal courts

b. Rival Procedural Systemsi. Distinctions b/w courts were mainly procedural

ii. Chancery acted when something about the common law seemed to result in unacceptable results1. special remedies for claims

a. injunctive claimsb. fraudc. administration of trusts – trustee holds title, but beneficiary gets benefits (in this case

created constructive trust)

Assignment 4Subrin pp. 245-248

David Dudley Field and the Field Code: the Multiple agendas of procedural reformers- objections developed to the common law-equity system in the U.S.- 1846 NY eliminated the chancery court and created a court “having general jurisdiction in law and equity”- a commission appointed to simplify and abridge the rules of practice, pleading, forms, and proceedings – “Practice Commission”- Field not one of the original members of the Practice Commission but was appointed to replace a member in 1847- New York procedural code adopted in 1948 became known as the Field Code – eventually adopted by 27 states- Field Code

o Eliminated the forms of action and provided the same procedure for all types of caseso Reduced number of pleadings to the complaint, answer, reply a, and demurrer, and discarded the stylized search for a single

issueo Liberalized a party’s ability to amend pleadings and to enter evidence at variance with a pleadingo Expanded number of potential parties, causes of action, and defenses that could be joined in one suito Permitted oral depositions of the opposing party (in lieu of calling adverse party at trial)

- Field wantedo “present forms of action be abolished, and in their stead a complaint and answer required each setting forth the real claim and

defense of the parties”o “should thus have a uniform course of pleading for all caseso “legitimate end of every administration fo law is to do justice, with the least possible delay and expense

a. this can be accomplished by: enabling the parties to better prepare for trial, or by assisting the jury and the court in judging the cause

Course Packet pp. 20-25

Gillispie v. Goodyear Service StoresSupreme Court of North Carolina258 N.C. 487;128 S.E. 2d 762January 11, 1963

Terms:- Demurrer- Civil Term of Almance

Facts:- D came upon and trespeassed the premises occupied by the plaintiff as a residence- D caused great fear, used threatening language, and humiliated her- P claims she was damaged and injured in the amount of $25k, and wants to be rewarded damages in this amount + 10K in

punitive damagesProcedure:

- Trial court granted demur and appellate court affirmed- Know Gillispie is appealing this ruling- Apparently the dumerrers were sustained by a lower court – it looks like b/c the complaint did not state facts sufficient to

constitute a cause of actionIssue:

- does P’s complaint state facts sufficient to constitute any cause of action?Rule:

- complaint must contain: plain and condise statement of the facts constituting a cause of action- statutory requirement is that a complaint must allege the material, essential and ulimate facts upon which plaintff’s right of

action is based- facts alleged are deemed admitted when the sufficiency of the complaint is tested by demurer

Holding:- Affirmed ruling - this complaint, when considered in the light most favorable to the D, fails to meet min. requirements

Reasoning/Analysis:- complaint just says D “w/o cause or just excuse and maliciously” trespassed upon premises..assaulted her and cuased her to

be seized and confined as a prisoner” o compliant states no facts upon which these legal conclusions may be predicatedo P does not disclose what, when, where it occurred or who did whato

Dissent:

Assignment 5

Subrin p. 250-53

- 1911 the ABA (urged by Thomas Shelton) lobbied Congress for a bill that would enable the Supreme Court to have uniform procedural rules for all district courts – an “enabling act”

- Pound said to address to ABA - problem with judiciary was “contentious procedure” and the “sporting theory of justice” whereby lawyers took advantage of procedural technicalities that stood in the way of justiceo American judges were unduly constrained by procedural rules designed to control them o Wanted “equity” as a model for expanded judicial discretiono Field code had become lengthy and complicated b/c of unsound legislative amendments

- 1912-1932 ABA created a bill for an Enabling Act to authorize the S.C. to draft uniform federal rules o the bill was held up in the Senate Judiciary committee b/c of Sen. Thomas Walsh

b. thought legal culture more important than procedurec. urged that equity rules, would formt he basis for new uniform federal rules, were complex in

practice and would not lead to uniformity and simplicity as the Enabling Act proponents contended

Enabling Act and the Drafting of the Federal Rules of Civil Procedure- 1932 ABA gave up trying to get Congress to pass an Enabling Act- 1934 Homer Cummings, Attorney Gen., resubmit the Enabling Act to congress and it passed- Supreme Court took time deciding to go ahead with linking law and equity procdure and to have the rules patterned on equity

practice- A 14 person committee “to Draft Unified System of Equity and Law Rules” became Advisory Committee did this

- Predominate theme was that procedure should be subordinate to and should not interfere with substance- Rules became law in 1938 by congressional inaction

Glannon pgs. 313-315 – Motion to Dismiss

- D responds to P complaint by filing an answer as provided in FRCP 12(a)- Second option in limited circumstances

o If D has certain preliminary objectison to the suit, an file a motion to dismiss the complaint under FRCP 12(b)o Filing this is an ALTERNATIVE t answering the complainto Filing this pre=answer motion is entirely optional

- there are things, lack of subject matter jurisdiction, insufficiency of service of process, etc. which can stop the motion from going forward

- 12(b)(6) challenges the substantive merits of the complainto even if the P were to prove all the allegations in the complaint, she would still not be entitled to any reliefo a P whose complaint has been dismissed under Rule 12(b)(6) will often get at least one opportunity to amend the complaint

to state a compensable claim, before her case is dismissed

FRCP Rule 8 – General Rules of Pleading

(a) Claims for Relief - Claim for relief shall contain a short and plain statement of the grounds upon which the court’s jurisdiction depends – usually just

assume jurisdiction (for our purposes)- Statement of the claim showing that the pleader is entitled to relief- Demand for judgment for relief pleader seeks(e) Pleading to be Concise and Direct; Consistency

1. each averment of pleading shall be simple, concise, and direct2. party may set forth 2 or more statmetns of a claim or defense alternately or hypothetically, in one count

or defense or in separate counts or defenses- can also state as many sep. claims or def. as party has regardless of consistency and whether based

on legal, equitable, or maritime grounds- all statements are subject to the obligations set forth in Rule 11

(f) construction of Pleadings- all pleadings shall be so construed as to do substantial justice

Form 9: Complaint of Negligence pg. 254

Rule 12 – Defenses and Objections – When and How presented- by pleading or Motion – Motion for judgment on pleadings

(b) How Presented- every def shall be asserted in the responsive pleading thereto if one is required EXCEPT

1. lack of jurisdiction over the subject matter2. lack of juris. Over the person3. improper venue4. insufficiency of process5. insufficiency of service of process6. failure to state a claim upon which relief can be granted7. failure to join a party under Rule 19

- If pleading sets forth a claim for relief to which the adverse part is not required to serve a responsive pleading, the adverse party may assert at trial any def. in law or fact to that claim for relief

- If on a motion to dismiss (6) – motion will be treated as motion for summary judgment and parties will given reasonable opportunity to present all material made pertinent to such a motion by Rule 56

Course packet pp. 26-29Rannels v. S.E. Nichols, Inc.591 F.2d 242 (3d Cir. 1979)

Terms:

Facts:

- dispute over $2.00 b/t a customer and mgmt. of a retail store- Rannels purchased a pair of blue jeans for $8 at Nichols store in Ephrata, Pen. - Bought jeans, defective, stopped payment on check, wanted to pay $6 to store b/c $2 for repair, store wanted $13.57, brought

criminal charges, although shouldn’t have,- Rannels beat criminal rap and brought suit for “malicious prosecution” but district court granted Nichols motion to dismiss

b/c P failed to aver “factual allegations of a lack of probable cause” on the part NicholsProcedure:

- a diversity action dismissed by the district court on the grounds that the complaint did not contain proper “factual allegations” to set forth a claim under which relief could be granted under Pennsylvania law of malicious prosecution and defamation

- Penn. Dist. Justice, the U.S. District Court, and the U.S. Court of Appeals for the third circuit and is basis for a cliam of $2,800,000 in damage

- Pursued criminal complaint for PA “bad check statute”- Trial court – D filed motion to dismiss on 12(b)(6) motion – trial court granted dismissal, then U.S. District Court, then U.S.

Court of Appeals for 3rd Cir. Said they didn’t need facts b/c this is not a code pleading state – conclusions can be enoughIssue:

- does the complaint as drafted meet the minimum requirements of Rule 8(a), FRCP so as to withstand a motion for dismissal under Rule 12(b)(6)

Rule:- FRCP require a “short and plain statement of the claim that will give the defendant fair notice of what the plaintiff’s claim is

and the grounds upon which it rests”- According to law of Penn. The elements nec. To support an action for malicious pros. Are

o Termination in the complainant’s favor of the criminal proceedings involved in the actiono Want of probably cause for the criminal proceedingso malice

Holding:- court holds that it did meet the min. requirements so REVERSED district courts decision

Reasoning/Analysis:- the Federal rules reject eh approach that pleading is a game of skill in which one misstep by counsel may be decisive o the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the meritsDissent:

Assignment 6

Course Packet pp. 33-36

Civil Rights- rights that encompass discrimination based on race, religion, ethnicity, gender, age and disability- one statue permits a suit against those who act “under color of law” (that is, in some official or quasi-official capacity) to deprive

persons of constitutional rights- some courts require that civil rights Ps plead more specifically than in other cases- Sup. Ct. has said that

(b) Officials are liable if their actions or orders violate constitutional rights but(c) They enjoy a qualified immunity if those actions took place under a reasonable misapprehension of the law

Leatherman v. Tarrant County Narcotics Unit (1963)- considered whether courts oculd require more specific pleading of civil rights Ps, and said could not- FRCP do not require a claimant to set out in detail the facts upon which he bases his claim- Rule 9(b) impose a particularity requirement in two instances

(d) In all averments of fraud or mistake, the circum. Constituting fraud or mistake shall be stated with particularity- Case left question – “whether our qualified immunity jurisprudence would require a heightened pleading in cases involving ind.

Gov’t officials”

Schultea v. Wood47 F. 3d 1427 (5th Cir. 1995) (en banc)

Terms:

Facts:- member of city council was BELIEVED to be involved in criminal activity- when the members of the council found out, they demoted the police chief investigating the action- former chief sued several concil members alleging violations of due process and infringements of his first am. Rights

- council members moved to dismiss Procedure:- moved to dismiss under Elliott v. Perez which required to anticipate the official immunity defense and to plead specific facts that

would overcome it Issue: - can the ct. require that P fully anticipate the official immunity defense in their pleading (i.e. can a motion to dismiss be granted

for not including that defense)Rule:- Ct. says that P can be required to engage the affirmative defense of qualified immunity when invoked, but no longer anticipate the

defense in his complaintHolding:- ordering a reply to the affirmative defense of qualified immunity is one of those certain instances- when a public official pleads the affirmative defense of qualified immunity in his answer, the district court may, on the official’s

motion or on its own, require the P to reply to that defense in detail- 5th circuits answer to Leatherman

(e) District court must insist that a P suing a public official under §1983 file a short and plain stmt. Of his complaint(f) Stmt that rests on more than conclusions along(g) Court may, in its discretion, insist that t P file a reply tailored to an answer pleading the defense of qualified immunity(h) District ct. may ban discovery a this threshold pleading stage and may limit any nec. Discovery to the D of qualified

immunityReasoning/Analysis:- in Elliot, a claim must be state with particularity- ct. invoked “heightened pleading’ and “pleading with particularity” as a pleading requirement in kinship with rule 9(b) but again

our “particularity” seldom bit harder in application than an insistence that P plead more than conclusions

Subrin et. Al 892-903 Carpenter Exercise

- in this case the D could be Ms. Carpenter and her son could ask for relief and sue for civil something because of the accident(i) good for D is that Dee has no assets(j) the police never TOLD Dee that the care had illegal components, other then the mirror(k) no proof of the height of suspension lift, if it was over a foot, why did they give it back after towing it

- P could claim either 1)by his negligence causes the death of a person, or 2) by willful, wanton or reckless act causes the death ofa person under such circumstances that the deceased could have recoverd damages for personal injuries if his death had not resulted

- Do D could be liable for (l) Compensation for the loss of the reasonably expected net income, services, protection, care, assistance, society,

companionship, comfort, guidance, counsel, and advice(m) Reasonable funeral and burial expenses (n) Punitive damages of not less the 5k if death was caused by malicious, willful, wanton or reckless conduct(o) Action must be recovered by an action of tort brought by the executor or administrator of the deceased

- ½ to child and ½ to wife

- Carpenter brought case against Randall Dee and brother Peter Dee- “loss of control and resulting accident was caused by the negligent and/or grossly negligent and/or wanton and willful, and

reckless conduct of the D operator of the jeep 1. excessive speed2. failing to stop at an intersection3. illegal and dangerous alteration of the chassis, causing unsafe handling characteristics

- D Randall sold land to D Peter to hide assets from creditorso They hoped to hide this land from P as well as other creditorso This is fraudulent within the meaning of M.G.L.c.109A

Sale rendered Randall insolvent Made at t time with D believed he would incur debts beyond his ability to pay Transfer made w/ intent to hinder, delay or defraud creditors

- D files motion – hey, there was a “failure to state claims upon which relief can be granted”o Dee was not owner of jeep and responsible for modifications on the jeepo Complaint does not state “duty” owed to carpenter

o Then D filed motion for more definite stmt. How do you know that the driving was negligent: what was the weather like, speed of vehicle, etc. – how will

you prove negligence How much money was the value of the decedents’ net income, services, protection, etc.

FRCP

Rule 7: Pleadings Allowed; Form of Motions(a) Pleadings

- shall be a complaint and an answer- court may order a reply to an answer or a third-party answer

(b) Motions and Other Papers1. application to ct. for an order shall be by motion, unless during a hearing or trial, shall be made in writing and state

particular grounds, and set forth the relief or order sought2. rules applicable to captions and other matters of form of pleadins apply to all motions and other papers provided for by

these rules3. all motions shall be signed in accordance with rule 11

(c) Demurrers, Pleas, etc., Abolished- demurrers, please, and exceptions for insufficiency of a pleading shall not be used

Rule 9: Pleading Special Mattersb) Fraud, Mistake, Condition of the Mind- circumstances constituting fraud or mistake shall be state with particularity- malice, intent, knowledge, and other condition of mind of a person may be averred generally

Rule 12: Defenses and Objections – When and How presented-by pleading or motion – motion for judgment on pleadings(e) motion for More definite Statement

- if pleading to which a responsive pleading is permitted is ambiguous that a party cannot reasonably frame a responsible pleading, the party can move for a more definite stmt. Before interposing a responsive pleading

- motion should point out defects and details desired- if motion is granted and the order not obeyed w/in 10 days after notice of the order, court may strike the pleading to with the

motion was directed or make such order as it deems just

Assignment 7:

Rule 11: Signing of Pleadings, Motions, and Other Papers; Representations to Court; Sanctions(a) Signature - all paper must be signed by the attorney, or if no attorney the party w/ address and phone number(b) Representations to Court - By presenting a doc. To court you are certifying that to the best of your knowledge, info, and

belief, formed after an inquiry reasonable under the circumstances1. Not done for improper purposes2. Legal contentions are warranted by existing law, etc or should be (arguing against a law)3. You have evidentiary support4. Denials are warranted on evidence

(c) Sanctions - If court finds (b) to be violated, court may impose sanctions upon attorneys, law firms, or parties that have violated provision

1. How InitiatedA. By Motion – must be made separately from other motions and shall specifically describe conduct

in violation – the court may award the party prevailing the reasonable expenses and attorney’s fees incurred in presenting or opposing the motion

B. On Court’s initiative – court can enter an order describing specific conduct that appears to violate subdivision (b)

2. Nature of Sanction; Limitations – sanction imposed for violation of rule shall be limited to what is sufficient to deter repetition of such conduct or comparable conduct by others similarly situation

A. Monetary Sanctions may not be awarded against a rep. party for a violation of subdivision (b)(2)B. Monetary sanctions may not be awarded on the court’s initiative

3. Order. – when imposing sanctions, the court must describe the conduct and explain basis for the sanction

(d) in applicability to Discover – subdivisions (a)-(c) of this rule do not apply to disclosures and discovery requrests, responses, obj. and motions that are subject to the provisions of Rules 26-37

Subrin, et al. pp. 256-60; 263-68

F. Sanctions- in face of allegations that frivolous litigation is facilitated, if not invited, by the ease of pleading under FRCP 8(a), some advocate

a return to more fact-specific pleading requirements. - Question whether FRCP 11’s sanctions effectively discourage lawyers from making ungrounded allegations in their complaints

o FRCP 11 has been changed twiceo 1983 am. Used mandatory sanctions as a means of forcing lawyers to conduct adequate factual and legal investigations

prior to commencing suito 1993 am. Eased stringency of rule, S.D. thinks that FRCP 11 will deter frivolous litigation

Attachment B to Letter to Hon. Robert E. Keeton From hon. Sam C Pointer, Jr., Chaiir of the Advisory Comm. On Civil Rules- Problems with FRCP 11 1983 am.

o TENDED TO IMPACT Ps more frequently then Dso Occasionally created problems for a party which seeks to assert novel legal contentions or who needs discoveryo Rarely been enforced through nonmonetary sanctionso Disincentive for a party to abandon positions after determining they are no longer supportable in fact or lawo Sometimes produced unfortunate conflicts b/w attorney and cline

- Topics for potential change in the 1993 am.o Opposition to this revision as weakening the ruleo Opposition to any am. As prematureo Application to discovery documentso Continuing duty to withdraw unsupportable contentionso Duty to conduct pre-filing investigationo Pleading “as a whole”o Mandatory sanctionso Payment of monetary sanctions to an adversaryo Protection of represented parties (as distinguished from attorneys) from sanctionso Sanctions against law firmso Court-initiated sanctions after case dismissedo Standards for appellate review

III. consideration of court – initiated sanctions- “safe harbor” provision of rule 11 does not apply when the court rather than a party initiates the consideration of sanctionsComments and Questions- the 10th circuit, has held that a sua sponte award of sanctions requires the issuance of a show cause order and a reasonable

opportunity to respond- fact that an attorney has done a good deal of prefiling investigation does not relieve her of potential sanctions when her client’s

own deposition shows that her case is without factual merit- although a legal claim may be so inartfully pled that it cannot survive a motion to dismiss, such a flaw will not in itself support

Rule 11 sanctions – only the lack of any legal or factual basis is sanctionable- Rule 11 MAY e having an unjust chilling effect on civil rights plaintiffs- Justice Scalia and Justice Thomas seemed not to like the am. To Rule 11

o Don’t want people who file frivolous suits and pleadings to have a safe harboro Rule decreases likelihood and severity of punishment for those foolish enough not to seek refuge in the safe harbor after

an objection is raisedo Doesn’t believe the current Rule 11 regime is ineffective, or encourages excessive satellite litigation

- a misrepresentation during oral argument can trigger a Rule 11 violation and sanction

Course Packet Reading pp. 37 – copy of old Rule 11pp. 38-39

Business Guides Inc., petitioners v. Chromatic Communications Enterprises, Inc. and Michael ShippSupreme Court of the United States498 U.S. 533February 26, 1991

Terms:

Facts:- Business guides has a directory and puts false information (seeds) in to prevent direct copying of its directories by competitors- Filed an action against Chromatic claiming copyright infringement, conversion and unfair competition and seeking a temporary

restraining order- P charged D with having 10 seeds in their directory, but didn’t specify which seeds- Judge asked Ps lawyers to identify the seeds, and then the lawyers asked clients (for first time after signing the application)- Ps attorneys retracted its claims of copying as to 3 of the seeds after this, and then the judge launched investigation and found

only 1 of the 10 seeds has incorrect information- The Ps lawyers did not know this, and they prepared a supplements affidavit identifying seven listings and explaining precisely

what part of each listing supposedly contained seeded information, guy from P company, Lambe, signed affidavit- District court denied TRO (temporary restraining order), and judge referred the matter to a Magistrate to deteriine whether Rule

11 sanctions should be imposed- Magistrate rec. that both law firm and client be sanctioned- Business Guides explained how it made mistake, but were sanctioned anyway b/c they had ‘failed to conduct a proper inquire,

resulting in the presentation of unreasonable and false information to the court”- Magistrate rec. sanctions for

o Against Bus. Guides for Initial TRO complaint, but not law firmo Both for Failing to inquire into the accuracy of the remaining seedso Both for Sanctions for their conduct in first two evidentiary hearingso District court agreed with Magistrate stating

Procedure:- court dismissed case with prejudice and imposed $13,865.66 in sanctions against Business guides, amount of chromatic’s legal

expenses and out-of-pocket costs

Rule 8: General Rules of Pleadingb) Defenses; Form of Denials.o party shall state in short and plain terms the part’s defenses to each claim asserted and shall admit or deny the averments

upon which the adverse party relieso an either make denials as specific denials of designated averments or paragraphs or may generally deny all the averments

except such designated averments or paragraphs as the pleader expressly admitsc) Affirmative Defenseso a party shall set forth affirmatively

accord and satisfaction arbitration and award assumption of risk contributory negligence discharge in bankruptcy duressestoppel failure of condiseration fraud illegalit injury by fellow serant laches license payment release res judicata statute of frauds statute of limitations waiver

d) Effect of Failure to Replyo averments in a pleading are admitted when not denied in the responsive pleading

Rule 12: Defenses and Objections – When and How presented by Pleading or motion – Motion for judgment on pleadings(a) When Presented

1) D shall serve an answerA) w/in 20 daysB) if service of summons had been waived under Rule 4(d) w/in 60 days if in U.S. and 90 days without

2) party served w/ cross-claim shall give answer in 20 days

3) see followsA) U.S. sued in official capacity shall serve an answer to complaint or cross-claim w/in 60 days of the

U.S. attorney being served with pleadingB) U.S. officer sued in ind. Capacity in connection with duties for U.S. shall reply in 60 days after

service on employee or servie on U.S. attorney, whichever is later4) service of a motion althers these periods of time as follows:

A) court deniew motion or postponses dispotions until the trial on merits, responsive pleading served w/in 10 days after notice

B) court grans motion for more definite stmt. Pleading served w/in 10 days (b) How Presented

- every def shall be asserted in the responsive pleading thereto if one is required EXCEPT1. lack of jurisdiction over the subject matter2. lack of juris. Over the person3. improper venue4. insufficiency of service of process5. failure to state a claim upon which relief can be granted6. failure to join a party under Rule 19

- If pleading sets forth a claim for relief to which the adverse part is not required to serve a responsive pleading, the adverse party may assert at trial any def. in law or fact to that claim for relief

- If on a motion to dismiss (6) – motion will be treated as motion for summary judgment and parties will given reasonable opportunity to present all material made pertinent to such a motion by Rule 56(c) Motion for Judgment on the Pleadings

- after pleadings are closed but w/in time not to delay trial, can move for judgment on the pleadings- if other matters are presented during motion, it shall be treated as one for summary judgment (see Rule 56)

(d) Preliminary Hearings- Ds and motions shall be heard before trial on application of any party unless court orders that the hearing and determination therof

be deferred until trial(e) Motion for More Definitive Stmt.

- if pleading to which a responsive pleading is permitted is so vague or ambigious that a party cannot reasonable be require to fram a responsive pleading, the party may move for a more definite stmt. Before interposing a responsive pleading

- if motion granded and order not obeyed w/in 10 days notice court may strike the initial pleading(f) Motion to Strike

- motion made by party before responding to pleading or w/in 20 days after service of pleading court may order stricken from any pleading any insufficient D or other impertinent matter(g) Consolidation of Defenses in Motion

- may joine with it any other motions herin provided for(h) Waiver or Preservation of Certain Defenses

1) D of lack of jurisdiction over person, improper venue, insufficiency of process, or insufficiency of service of process is waived a) if omitted from a motion b) if neither made by motion ounder this rule nor included in a responsive pleading or am. Thereof permitted by rule 15(a)

2) Pleadings permitted under Rule 7(a) or by motion for judgment on the pleadings, or at the trial on merits if D says they failed to state claim, join a party under Rule 19 and failed to satate a legal defense

3) If it appears the court lack s jurisdiction of the subject matter, the court shall dismiss the action

Assignment 8:

Subrin pp. 209-13, 216-218; 220-21; 904-906

b) Motion to Dismiss- you can include the 7 permitted motions to dismiss as part of your answer or by preliminary motions prior to filing an answer- filing preliminary motions won’t cut off ps right to amend, but filing an answer will- If you file a 12(b) motion prior to your answer, include all plausible les –favored defenses in your motion at the same time;- If you answer without having first brought 12(b) motions, include aplausible less-favored defenses in your answer- The 12(b) defenses relating to subject matter jurisdiction, Rule 19, and failure to state a claim are not waived by omission in the

answer or failure to consolidate with other 12(b) motionso It is still common practice for Ds lawyers to include them in their answer if applicable

- 12(b) defenses whether raised by prelim. Motion or in answer, or in the case of the favored defenses after the answer, Rule 12(d) states that such defenses “shall be heard and determined before trial on application of any party, unless the court orders that the hearing and determination thereof be deferred until the trial”

- its possible that once all pleadings are done, it is clear who should win, and a motion for judgment on the pleadings can be submitted

c) Answers- Answers will potentially contains 4 types of material

4. Admissions and denials to the averments in the Ps complaint5. 12(b) defenses6. affirmative defenses7. counterclaims and crossclaims

- Also need to consider whether D wishes to implead a third party or otherwise seek to add parties- D might seek to reduce the number of parties through a motion for misjoinder- Defense can claim a jury trial

d) Admissions and Denials- Rule 8(b) requires an admission or denial of each averment, except when a party is without knowledge or information sufficient to

form a belief as to the truth of an averment- General denials are subject to the obligations set forth in Rule 11- When a responsive pleading is required, averments not denied are taken as admitted, except “the amount of damages”- Purpose of an answer is to narrow the issues and to apprise the parties of what is still in dispute- Admissions in pleadings are more binding than evidence given at trial- P is better off pleading very specific facts so D has difficulty stating an unconditional denial- Penalties exist for denying an entire group of averments when in fact the pleader denies only a portion

o Zielinski v. Philadelphia Piers, Inc. 139 F.Supp. 408 (D.C. Pa. 1956) P alleged vehicle owend and operated by D was managed negligently and carelessly and caused P injuries D denied whole paragraph of averments in complaint, but could have admitted that accident happened, owned

vehicle that came in contact with plaintiff, that P sustained injuries D denied b/c had leased care to another person so P had sued wrong person, but statute of limitation on case

had expired sometime after D answered, but before P ascertained ID of correct D D was argued responsible for this b/c didn’t more carefully admit and deny specific averments in complaint Court felt the P had been misled

- in some cases need to say “neither admits nor denies”

e) Affirmative Defenses- affirmative Ds are the counterpart to the “confession and avoidance” of the common law- usually Ds have burden of pleading, production, and persuasion as to all elements of the affirmative defense- Rule 8(c) lists 19 affirmative defenses, but they are merely illustrative- D should include all affirmative defenses in answer, however not putting them does not necessarily waive them in all circuit

courts- Lawyers usually know in advance the elements of causes of action and the applicable affirmative defenses- If statue is involved, court attempts to discern whether is language implies what is an affirmative defense or whether legislative

intent helps to resolve the question- Sometimes courts occasionally place the burden on the P, but require the D to plead the nonexistence of the elemtn as an

affirmative defense and to prove it

Glannon pp. 315-317; 318-323

Waiver of Defenses under Rule 12- Rule 12(g)(h) govern consequences of not raising Ds

o Provide that four of the 12(b) defenses will be waived if not raised in Ds first response to complainto If D has suffered any prejudice from these preliminary defects, D should be aware of it when complaint is servedo Not unreasonable to put burden upon D to raise these defects right away

ExplanationsAn Early Question- D of failure to state a claim is fundamental challenge to merits of Ps claim- If D really as committed no legal wrong, she should not be held to waive this basic defense by the mere failure to raise it at the

beginning of the suit- The four disfavored defenses are distinguishable b/c they involve procedural obj., which should be apparent to the D as soon as

she receive the summons and complaint- Sometimes hard to determine whether a complaint fails to state a claim at the outset- The system properly favors preservation of this basic obj. over the efficiency gained from forcing Ds to raise it immediately

Assingment 9:

FRCP 15

Rule 15. Amended and Supplemental Pleadingsa) Amendments

- party can amend their own pleading once at any time before a responsive pleading is served, or if there is not responsive pleading needed within 20 days after it is served

- party may amend pleading only by leave of court or w/ written consent of adverse party, and leave shall be freely given when “justice so requires”

- party responds to amended pleading w/in 10 days of service of amended pleading or the original pleadings time to respondb) Amendments to Conform to the Evidence

- when issues not raised in pleadings are tried by express or implied consent they will be treated as if they had been raised in the pleadings

- parties can move to make pleadings conform to evidence at any time, even after judgment, but failure to amend does not affect the result of the trial of this issuesc) Relation Back of Amendments – amendment of a pleading relates back to the date of the original pleading when

1. permitted by the law that provides statute of limitations applicable to that action2. claim or defense asserted arose out of the conduct, transaction, or occurrence set forth or attempted in

original pleading3. am. Changes the party or naming of party against who a claim asserted if (2) is satisfied and w/in the

period provided for Rule 4(m) for service of summons and complaining, the party to be brought am. A) has receive notice of the action that the party will not be prejudices in maintaining a defense on merits and B) should have known the action would have been brought if there wasn’t mistake

- deliver of process to U.S. Attorney, etc or agency who would have been a proper D if names, satisfies requirements of A) & B) above w/ respect to the U.S. or any agency to be brought into action as Dd) Supplemental Pleadings

- party can move for permission to serve a supplemental pleading setting forth transaction, occurrences, or events which happened since date of pleading

- can be granted when original pleading is defective, and court can order the adverse party to respond

Subrin pp. 221-224

6. amendments- modern civil litigation revolves around discovery, and during that stage new facts, and previously unpleaded causes of action and

defenses often emerge- most P friendly reading of Rule 8(a)(2) – allow P to state claim with cause of action and then prove at trial any cause of action

within the story told int eh complain- trial judge can tell parties they cannot present evidence not in their pleadings so parties often want to amend their pleadings- important parts of Rule 15

o 15(a) – “freely given when justice so requires”o 15 (c) “relates back to the date of the original pleading

- 15(b) – there to solve problem of admitted evidence that goes beyond the confines of pleading- probably best to object when you think your opp. Is intro, evidence beyond the pleadings

o need to know if new fact in issueo may not want to object b/c don’t want adversary to develop new theory and tip them off through obj.o may win obj. and keep a new cause of action, theory or defense out of case

- Args. Why “justice” does not require granting right to amend (other then statute of limitations)o Opp. Unreasonable delayed raising issues (usually fails w/o prejudice arg.)o Prej. in your prep. For case by delayo Issue is raised in bad faith (don’t to confuse issue or make other party look “bad” on an irrelevant questiono New issue is “futile” and party can’t win on it

- 15 (d) – supplemental pleadingso for events that happened since date of original pleading that are relevant to the caseo court can grant these even if the new material cure a defect n original complainto if new claim is involved, and statute of limitation has now run pleader will need to use relate back rule in 15(c)

- most litigated provision is statute of limitations and can additional claims or defenses relate back to date of original pleadingo cause of action accrues when every element of the cause of action has taken place, usually last element to occur is harm

or damageo tolling agreements – D may be willing to forestall the running of the period of time under statue of limitations pending

settlement negotiations

- reason for statue of limitationso give parties a sense of repose or peace after time has expiredo permits accused parties to amass evidence while it is still fresho helps courts avoid depleting their scarce resources on stale cases where it will be extremely difficult to figure out what

happened- when reading am./statute of limitation case not two conceptual problems

o whether am. Is merely adding a claim (15(c)(2))or defense, as opposed to adding a party (15(c)(3))o FRCP 15(a) and 15(c) impose dif’t tests

15(a) might say justice requires claim, but if statute of limitations has passed there could be sound affirmative defenses unless the 15(c) provisions save amending party

Course Packet pp. 40-42

Beeck v. AquaslideU.S. court of Appeals 8th circuit (1977 is when filed)Terms:

Facts:- P was injured on public slide which had been ordered by Kimberly village home Asociation- Slide was supposed to be Aquaslide product and was delivered from Purity warehouse- D admitted manufacture in answer and 3 insurance companies confirmed it was their product- Statue of limitations expired on July 15, 1974 and 6.5 m. later president of aquaslide visited site prior to taking deposition, and he

determined it wasn’t his slide- D moved court for leave to amend its answer to deny manufacture of slideProcedure:- trial court granted motion for complaint amendment and separated trials b/w was the slide made by aquaslide and was aquaslide

liable?Issue: - was it an abuse of the trial court’s discretion to grant leave to amend to the manufacturer in order to deny these admissions after

the running of the statue of limitations?- Was it an abuse of the trial court’s discretion to further grant the manufacturers motion for a Separate Trial on issue of

manufacture?Rule:- FRCP 15(a) – “only by leave of court or by written consent of the adverse partyl and leave shall be freely given when justice so

requires” and burden is on party opposing the am. To show prejudice-Holding:- trial court did not abuse its discretion in allowing the D to amend its answer- judicial economy benefited all parties by separating trial as jury did find that slide wasn’t made by aquaslide- district courts findings upheldReasoning/Analysis:- trial court felt that D tried to investigate thoroughly and blame for the mistake should be shared b/w both parties- issue of prejudice – trial court couldn’t’ assume the am. Would be “death knell” of Ps complaint b/c they would have to a sum the

D would win- Ds hadn’t been so lacking in diligence as to dictate a denial of the right to litigate the factual issue of manufacture of the slide- Ps may be able to sue other parties as a result of the substituting of a “counterfeit” slide for Aquaslide – so maybe statue of

limitations wouldn’t matter- Ds motion for separate trial based on saving time, expense, and preparation and that a trial solely on this fact would protect

aquaslide from prejudiceDissent:

Assignment 10.

FRCP

Rule 26. General Provisions Governing Discovery; Duty of Disclosurea) Required Disclosures; methods to discover additional matter

1. Initial Disclosures – party must, without awaiting discovery request, provide to other partiesa. Name and addresses of people likely to have discoverable info.b. Copy of, description by category and locations of docs that disclosing party may use to support its claims or

defenses

c. Computation of any category of damages claimsed and how computation is basedd. Insurance agreemente. Categories which are exempt are

i. rvw. On admin. Recordii. petition for habeas corpus or challenge a criminal conviction

iii. action brought w/o counseliv. action to enforce or quash admin. Summons or subpoenav. action by U.S. to collect on student loan

vi. proceeding ancillary to proceedings in other courtsvii. action to enforce an arbitration award

- disclosure must be made win 14 days after Rule 26(f) conference unless otherwise stipulated by court- if party objects to certain disclosures, court decides what will be made and when- if served after Rule 26(f) conference – party has 30 days to comply unless court says otherwise

2. Disclosure of Expert Testimonya. Party must disclose ID of person who may be called under Rules 702,703,705 of Federal Rules of Evidenceb. Must present written report signed by witness containing complete stmt of opinions expresses and basis and reasons,

qualifications of witness, compensation paid, listing of other cases witness participated inc. Disclosures shall be made at sequence of court or 90 days before trial date

3. Pretrial Disclosures – parties must also disclosea. Name and address of each witnessb. Designation of witness whose testimony is expected to be presented as depositionc. Appropriate ID of each doc or ex.

- disclosures must be made at least 30 days before trial or 14 days thereafter unless specified by court- party can file obj. to just of deposition, otherwise waive this right

4. Form of Disclosures – must be made in writing5. Methods to Discover Additional Matter – may obtain discovery through depositions, interrogatories, production of

docs. Etc.b) Discover Scope and limits

1. In General- can obtain discovery for any matter not privileged that is relevant to claim or defense- relevant info. need not be admissible at trial

2. Limitations- court may alter limits in these rules on number of depositions and interrogatories or the length of depositions under Rule 30- may limit number of requests under Rule 36- discovery is limited if court determines that

o its unreasonable or obtainable from a more convenience sourceo party has had ample opportunity by discover to obtain info. soughto burden or expense of discovery outweighs likely benefit

Subrin pp. 293-296; 327-333; 335-39; 346-49(sample interrogatories); 928-51 (ex. Docs.)

A. Introduction- discovery rules revolutionized American procedure by est. a broad scope for what may be obtained through discovery- under common law, no discovery, instead trial by surprise- three critical points in orientation

o the American system is unique in its embrace upon expansive discoveryo important to appreciate the unique role that civil litigation plays in the fabric of American society b/c of our reliance on

the civil litigationo discovery dominates the practice of today’s litigators

B. Role of Discovery- primary function is to provide litigants with an opportunity to review all pertinent evidence prior to trial- consistent with pursuit of justice b/c

o reduces the chance of trial by ambush and facilitate determination upon merits of caseo promotes settlemento reduces drain on resources of court b/c it educates parties and often narrows scope ofissues in dispute

- party is entitled to demand discovery of any matter thato is relevant to the claim or defense of any partyo is not unreasonably cumulative or burdensomeo is not privileged

Mandatory Initial Disclosures- FRCP 26(a)(1) requires mandatory disclosure by both parties of the following info.

o Names and addresses likely to have discoverable info.o Copy or description of all docs, data compilations, etc. in possession of party and that the disclosing party may use to

support its claims or defenseso Computation of damages claimed by disclosing partyo Copies of any insurance agreement

Discovery Techniques- depositions, interrogatories, requests for production of docs, physical and mental examines, and requests of admission

o Depositions Used to question potential witnesses under oath about their knowledge and participation of certain events,

usually done orally Advantages are

Question potential witnesses under oath Responses to question will have a degree of spontaneity unavailable by other methods Follow up on info. revealed in answers and take questioning in any new direction Anything recorded in deposition is available for use at trial Nonparties may be deposed

Disadvantage- expenseo Written interrogatories

Written questions submitted to an opposing paty and must be answered in writing, under oat w/in specified tiem period

Useful to obtain detailed and noncontroversial info., inexpensive to prepare, can use at trialo Production of documents and things

Either party may request other party to produce docs and things for inspection and copying Term docs is construed widely to be written, recorded, or digitized item of info Hart to strike balance b/w over and under inclusiveness

o Physical and mental examinations Requested when person’s condition is in controversy and person to be examined is given proper notice

o Requests for admission Party may serve upon any other party a request for admission of any matter within the scope of discovery,

typically are question answer stmts. Used to further explore specific contentionso Informal discovery

Include nonparty interviews, site visits, exchange of info., requests for info. from gov’t agencies, rvw of publicly available records, private invest. And internet research

o Experts Routinely consulted to assist in process of framing pleadings, preparing discovery requests, responding to

discovery and developing a strategy for pretrial motionsA Brief Introduction to the Rules of Evidence- evidence necessary to support a verdict must be on the record- facts alleged in pleading, discovery, etc. are not evidence and can’t support verdict- direct evidence – evidence that is precisely on point- circumstantial evidence – evidence relating to a series of facts other than those directly at issue in order to prove a fact at issues- relevant evidence – evidence having any tendency to make the existence of any fact that is of consequence to the determination of

the action more probably or less probably than it would be witout the evidenceElectronic Discovery- rules of this are still in infancy, but as practical matter it is undeniably necessary to be familiar with it so you are able to frame

requests, respond to and resist requests, counsel clients with respect to the use, preservation, and retrieval of such information-

Assignment 11.

FRCP

Rule 16: Pretrial Conferences; Scheduling; Managementa) Pretrial Conferences; objectives. - court can order parties to appear before trial to

1. expediate disposition of action2. est. control so case won’t be protracted b/c of lack of mgmt.3. discourage wasteful pretrial activities4. improve quality of trial

5. facilitate settlemtnb) Scheduling and planning – court can enter a scheduling order that limits the time

1. join other parties and amend pleadings2. file motions3. complete discovery4. modifications of times for disclosure5. date or dates for conferences before trial6. other matters appropriate int eh circumstances of the case

- order issues w/in 90 days of Ds appearance and w/in 120 days after complaint served to D- schedule not to be modified except with a showing of good cause and with leave of district judge

c) Subjects for consideration at pretrial Conferences1. formulation and simplification of issues2. necessity or desirability of amendments to pleadings3. possibility of obtaining admissions of fact and docs., admissibility of evidence4. avoidance of unnecessary proof and cumulative aevidence5. appropriateness and timing of summary adjudication6. control and scheduling of discovery7. ID of witnesses and docs, schedule of pretrial briefs, date for further conferences and for trial8. advisability of referring matters to judge9. settlement and use of special procedures10. form and substance of pretrial order11. disposition of pending motions12. special procedures13. order for separate trial14. order directing party to present evidence early in trial for baiss for a judgment as matter of law 15. reasonable limit on time allowed to present evidence16. other matters to facilitate just speedy and inexpensive disposition of action

d) Final Pretrial Conference- Formulate plan for trial, including program for admission of evidence- must be attended by at least one attorney from each party, and any unrepresented parties

e) Pretrial Orders- after conference held, order shall be entered to recite action taken and won’t be modified unless to prevent injustice

f) Sanctions- if party doesn’t show up, or shows up unprepared can be sanctioned which may include paying reasonable expenses incurred for

noncompliance

Rule 26. General Provisions Governing Discovery; Duty of Disclosure

f) Conference of Parties; Planning for Discovery- parties must confer to consider the nature and basis of their claims and defenses and the possibility of settlement or resolution of

the case, make arrangement of disclosure, and develop proposed discovery plan at least 21 days before a scheduling conference is held (unless exept under rule 26(a)(1)(E)

- discovery plan should indicate parties views and proposals concerning:1. what changes made in timing form and when disclosures will be made2. subjects on which discovery is needed, when it will be completed , and if it should be conducted in phases or lmt’d to

focus on particular issues3. what changes should be made in limiations 4. any other orders that should be entered by the court under Rule 26(c) or 16(b)&(c)

- attorneys of record and all unrepresented parties that have appeared in the case are responsible for arranging conference and submitting results to the court after conference

g) Signing of Discolsures, Discovery Requests, Responses, and Objections1. all disclosures must be signed by at least one attorney of record or the unrepresented party to signify completion and

correctness2. Every discovery request, response, or obj. must be signed by attorney or unrepresented party to certivy the request,

response, or obj. is:A. Consistent with rules and warranted by existing law or good faith arg.B. Not imposed for improper purposeC. Not unreasonable or unduly burdenson or expensive

- if request is unsigned, it will be stricken from record unless it is promptly corrected3. if w/o substantial justification a cert. is made in violation of rule, the court shall impose an appropriate sanction which

may include an order to pay the amt. of the reasonable expenses incurred b/c of the violation, including attorney fee

Rule 37. Failure to Make Disclosure or Cooperate in Discovery; Sanctionsa) Motion for Order Compelling Disclosure or Discovery – party may apply for an order compelling disclosure or discovery

as follows:1) Appropriate court- app. For order made to court where action is pending, unless the discovery in question is in another

courts juris. And then the app. Goes there2) Motion

A. if party fails to make disclosure, party can compel it through motion if they have attempted to confer w/ party not making disclosure

B. if deponent fails to answer question, inerrogatory, fails to respond, etc. party can move for them to be compelled as long as the compelling party has tried to get them to compel

3) Evasive or Incomplete Disclosure, Answer, or Response – evasive or incomplete disclosure, etc. will be treated as failure to disclose, etc.A. if motion is granted or if disclosure request is provided after motion is filed, the court may require the problematic

party to pay the other party reasonable expensesB. if motion denied, court may enter protective order allowing for the party who brought motion to pay the fees of other

partyC. if motion granted in part and denied in party, court may apportion the reasonable expenses incurred in relation to the

motion among the parties and persons in a just mannerb) Failure to Comply With Order.

1. Sanctions by Court in District Where Deposition is Taken – if deponent fails to do as court asks, can be placed in contempt of court

2. Sanctions by Court in Which Action is pending – if person doesn’t adhere to court order, the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following:

a. order that the matters regarding which the order was made shall be taken to be est. for the purposes of the actionb. order refusing to allow disobedient party to support or oppose designated claims or defensesc. order striking out pleadings, staying further proceedings until order is obeyed, or dismissing the action or

proceeding, etc.d. order treating as contempt of court the failure to obey any orders except an order to submit to a physical or

mental exame. if party fails to comply with an order under Rule 35, produce parties, except if the party failing to comply shows

that that party is unable to produce such person for examination- in lieu of any of the foregoing orders or in addition to, court shall require party failing to obey order to pay reasonable expenses,

including reasonable attorney’s fees, unless ct. finds that the failure was substantially justifiedc) Failure to disclose False or misleading Disclosure; Refusal to admit

1. If a party fails to disclose information required by rule 26(a) without substantial justification then the info. will not be allowed to be presented at trial, and may be subject to sanctions

2. if a party doesn’t give info. under Rule 36, and the party seeking the info. gets it, the first party will have to pay for the expense of the second party to find the info. unless its deemed irrelevant info., or the party really though they would prevail on the matter, and other good reasons

d) Failure of Party to Attend at Own Deposition or Serve Answers to Interrogatories or Respond to Request for Inspection

- if a party doesn’t respond to a deposition, interrogatories, or provide written response for a request for inspection after proper service the court in which action is pending on motion can take any action authorized in 37(b)(2)(A-C), and can make them pay other party’s attorney’s fees

- may not be excused on the ground that the discovery sought is objectionable unless the party failing to act has a pending motion for protective order as provided by Rule 26(c)e) Abrogatedf) Reapealed. Pub.L 9696-481, Title II § 205(a), Oct. 21, 1980, 94 Stat. 2330g) Failure to Participate in the Framing of a Discovery Plan

- if a party or party’s attorney won’t participate in discovery framing, then they may have to pay the attorney’s fees the other party spent b/c of the failure

----------------------------------

Subrin pp. 302-311; 350 – 352 – Exercise see class notes

Comments and Questions- has discovery gone to far? What has it done to the legal system? What would be fair?- Over 95% of cases settle or rare otherwise disposed of without a full-scale trial

Wayne Brazil, the adversary Character of Civil Discovery (1978)- S.C. said that mutual knowledge of all relevant facts gathered by both parties is essential to property litigation

- Because so many civil cases are settled before trial and because the conduct of attorneys is subject only to fitful and superficial judicial review during te discovery state, much of the decisive gamesmanship of modern litigation takes place in private settings

- Discovery is used by attorneys as a tool whose purposes are fixed by the purposes of the larger process of litigation where attorneys have 5 major objectives

5. win6. make money7. avoid being sued for malpractice8. earn the admiration of the prof. community9. develop self-esteem for the quality of their performances

- means employed by litigators to achieve victory for their clients regularly involve manipulating people and the flow of information in order to present their client’s positions as persuasively and favorably as possible

Stephen Landsman, Defense of the Adversari1l process- adversary process provides litigants with the means to control their lawsuits- adversary theory hold sthat if a party is intimately involved in the adjudicatory process and feels that he ahs been given a fair

opportunity to present his case, he is likely to accept the results whether favorable or not- b/c adversary process assigns the prosecutorial function to the parties, it serves to inc. the likelihood that the trier will be able to

devote her full attention to the neutral adjudication of the case- judge is to act as a neutral and passive arbiter

Loren Kieve, Discovery Reform (1991)- discovery has become a nightmare- a lawyer can file a lawsuit, with only a bare idea of what the case, much les the trial will look like, and then require the opposition

and its lawyers to go through the cumbersome, expensive procedure of sifting through its files to turn over a vast array of material that is not merely relevant, but that may “lead to the discovery” of relevant evidence

- wants no discovery, investigate the case before it is filled, presumably trying all the while to settle it, obtain the documents and witnesses they need to try it, and only then file a lawsuit

Course Packet pp. 43-38

Steven McPeek v. AshcroftU.S. Discrict Court for DC (2001)

Facts:- P says after promotion to Assistant Dir. For Bureau of Prisons (1990) he was sexually harassed by director- P filed informal complaint with EEO at DOJ and settlement was reached and he was transferred (1992)- P says he was retaliated against for filing a complaint in a breach of the confidentiality of the settlement agreement and that after

he hired counsel in July 98 to pursue formal legal remedies he began receiving renewed retaliation efforts- P wants DOJto search backup systems to find more discovery information- Ds say it can’t justify the possible costsProcedure:

Issue: - should the Ds have to provide discovery data from back-up tapesRule:- court has responsibility to prevent “undue burden or expense”Holding:- DOJ to perform backup restoration of emails attributable to supervisors computer from July 1, 1998- July 1, 1999 and for DOJ to

record all time and money spent doing search - Then judge will rule on whether expense does or does not justify further searchReasoning/Analysis:- no way to know what’s on back-up tapes, they are organized randomly, - Ds taking chance that trial court won’t make them do search- If discovery isn’t enforced any chance of settlement will be gone- The gov’t has to have own workers search tapes b/c of potential confidential information

-----------------------------------Jackson v. Microsoft Corp.U.S. District Court for the W.D. of Washington (2002)

Terms:

Facts:

- P worked for D and left position in 2000- P claimed Title VII violation and initially this was a class action of blacks, but now they are pursing their claims individually-Procedure:- D brought a motion to dismiss with prejudiceIssue: - should Ds motion to dismiss be grantedRule:- “it is well settled that a dismissal is warranted where a party has engaged deliberate in deceptive practices that undermine the

integrity of judicial proceedingsHolding:- D motion to dismiss is grantedReasoning/Analysis:- Jackson unlawfully obtained proprietary materials from Microsoft and perpetrated a lengthy series of elaborate misrepresentations

and lies to both the court and counsel- This cause prejudice towards D and court concludes dismissal is necessary- D asked for motion b/c P stole materials and tried to misrepresent the source and scope of the materials- D stole CDs with 10K emails – a few of which address Jackson’s performance deficiencies and Jackson’s claims of

discrimination, but also contain trade secrets- court has “inherent power” to sanction for discovery violations, including dismissal- key factors are prejudice and the availability of lesser sanctions- dismissal the conduct sanctioned must be characterized by “willfulness, fault or bad faith”

Assignment 12:

Subrin pp. 296-302

Hickman v. Taylor329 U.S. 495 (1947)

Facts:- D was towing a RR car across Delaware River on tug J.M Taylor, which sank- 5 crew members drowned, 4 survived- P is bringing suit in federal district court suing the tug owners and the RR- Other 4 families settled litigation- Ps asked in interrogatories for any stmts. of members of crew of the tugs or any other vessel in connection with the towing of the

car float and the sinking of the tug, if yes, attaché summaries of stmts. - D wouldn’t give stmts. Saying they were work productProcedure:- trial court ordered D to give P stmts, the refused, judge put them in jail in contempt- Ct. of App., sitting en banc, reversed the judgment of District court – said it was work productIssue: - whether discovery may be used to inquire into materials collected by an adverse party’s counsel in the course of preparing for

possible litigationRule:

Holding:- affirm judgment of the circuit ct. of app.Reasoning/Analysis:- P argues since materials were secured from 3rd persons and not Ds, that they are proper subjects for discovery- Framing problem in terms of assisting ind. Ps in suits against corporate Ds is unsatisfactory- Deposition-discovery rules are to be accorded a broad and liberal treatment- The witnesses in discussion are available to the P, and there are interviews made by U.S. Steamboat inspectors, so what they are

attempting to secure are production of written stmts. And mental impressions contained in files and mind of the D attorney- Discovery can be had if relevant and non-privileged facts remain hidden in an attorney’s file and where production of those facts

is essential to the preparation of one’s caseConcurring Justice Jackson:- counsel for petitioner candidly said on arg. He wanted info. to help prepare himself to examine witness, to make sure he

overlooked nothing - if the P could use D counsels ideas to impeach witness it wouldn’t makes sense, can’t be evidence, and just dumbs down judicial

process

Rule 26. General Provisions; Methods to Discover Additional Matterb) Discovery Scope and Limits – unless limited by court, discovery will be as follows:

3. Trial preparation: Materials. a party can obtain discovery of docs and tangible things otherwise discoverable under 26(b)(1) if they were

prepared for trial and the showing that the seeking party has substantial need of the materials to prepare case, and the party can’t get it another way without undue hardship

a party can obtain w/o the required showing a stmt. Concerning the action or its subject matter previously made by that party, a person can do the same thing with another person, and if request is denied the person can move for court order

a stmt. Previously made is a) a written stmt. Signed, etc. or b) a recording, or transcription, which is substantially verbatim recital of an oral stmt. By the person making it

4. Trial Preparation: Experts.a. party can depose anyone ID as expert for trial, but the deposition should be done after any reports b. a party can discover facts from an expert witness who has been retained by another party, but is not expected to be

called as a witness at trial, or if they can show that it wouldn’t make sense for them to find out the facts through other means, AND can get additional information from the expert through that deposition, that might not be in the prepared report

c. the party deposing the expert has to pay reasonable fees to expert for time and may need to pay for part of experts overall costs if they obtain facts and opinions from the expert

5. Claims of Privilege or Protection of Trial Preparation Materials if a party withholds info. otherwise discoverable under the rules claiming that it is privileged or work product,

party must describe the nature of the info./docs and why it shouldn’t be revealed so other parties can make decisions about the applicability of privilege

c) Protective Orders. upon motion by party, the court may make any order which justice requires to protect a party or person from

annoyance, embarrassment, oppression, or undue expense, including one or more of the following1. that the disclosure or discovery not be had2. that the disclosure or discovery can be had on specified terms and conditions3. it may be had only by a method of discovery other then the one selected by the party seeking discovery4. certain matters not be inquired into, or that the scope be limited to certain matters5. be conducted with no one present except persons designated by the court6. that a deposition after being sealed only be opened by the court7. that a trade secret or other confidential info. not be revealed or only revealed in a certain way8. that parties simultaneously file specified docs or info. enclosed in sealed envelopes to be opened as directed by the

court if motion for a protective order is denied in whole or in party, the court may order that any part or other person

provide or permit discovery provisions of Rule 37(a)(4) apply regarding aware of expense for this motion

Assignment 13

Course Packet pp. 49-57

B. Avoiding Adjudication- parties may decide they want to avoid litigation, especially considering the procedural rules- escapes from adjudication – alternative dispute resolution (ADR)- one can think of existing procedural rules as rules that come into play only if the parties have not otherwise agreed

1. Negotiation and Settlement some argue that settlements are better b/c consent is a basic principle of justice one of the lawyers’ contribution to the negotiation, when there could be pending litigation if settlement does not

work, may be the interposition of a professional role that keeps the disputants civil long enough to work out an agreement

two different schools of thought and practice in negotiation emphasizes the sense in which negotiation is a competition or conflict in which each point gained by

one side is lost by the other other argues that adversarial negotiators exaggerate the extent to which zero sum situations dominate

negotiationa. Contracting to Dismiss – simplest form of settlement is a contract in which P agrees not to bring a lawsuit or

to drop one already filed, usually Ps want money in return for such an agreement

Notes and Problems- Parties do not need approval of their settlement by a judge in most cases

o Exception to this “freedom to settle” arise in class actions, cases involving minors, and in some multi-defendant cases- legislators can build procedural protections into settlements of certain kinds of claims- settlements are contracts and can be attacked on any of the grounds on which one can attack any contract: fraud, duress, mistake,

incapacity, unconscionability, and the like- you should draft a written settlement agreement

o P should agree not to file a threatened law suito Having filed suit, P should seek a voluntary dismissal and agree not to refile the suito Having filed suit, P should consent to a dismissal w/ prejudice and agree not to file suit

- If the P files suit anyway, it requires the D in the second suit to show that the second claim was the same as the one covered in the settlement agreement

o Involuntary dismissal, with prejudice, allows court to enter judgment on the merits It also allows the scope of the claim to be defined by the doctrines of former adjudication rather than by contract

of settlement

b. Contracting for Confidentiality – one goal shared by Ds and Ps is that settlement be confidentiality. In some cases this means that even the fact that there was a dispute should be kept secret

i. Ps agree to return to D all docs and data obtainedNotes and Problems- Proponents of confidentiatiliy

o why let it be confidential? Disputes are primarily private matters which whould be allowed to be settled by parties in any lawful agreement that ends dispute

o confidentiality agreements promote settlements, and it benefits the Ps b/c Ds wanting confidentiality will often pay a premium for it

- opponents of confidentiailityo disputes aren’t private matters and there is a public interest defeated by such agreements

- right now these agreements are generally enforceable

Kalinauskas v. Wong151 F.R.D. 363 (D.Nev. 1993)

Facts:- P is suing D for sexual discrimination and wants to depose Thomas who filed a sex. Har. suit the previous year against D- Thomas signed a confidentiality agreement which included that she not state anything re: her employment other then dates and

titleProcedure:- court examined the materials of the settlement “in camera” -Issue: - can Thomas be deposed? – more specifically does P have to intervene in Thomas case and can the confidentiality be used to

protect against 3rd partiesRule:- “where an appropriate modification of a protective order can place private litigants in a position they would otherwise reach only

after repetition of another’s discovery, such modification can be denied only where it would tangibly prejudice substantial rights of the party opposing modification” (As in Wilk v. American Medical Assoc.)

Holding:- P does not have to intervene- Thomas can discuss questions regarding employment at Ceasars and knowledge of sexual harassment, but not her settlement

agreement, no penalties will apply towards her for doing this- So the Ds Motion for Protective Order (#39) is granted in part and denies in partReasoning/Analysis:- “parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending

action” – it is not ground for objection that the info. sought will be inadmissible at trial if the info. sought appears reasonably calculated to lead to the discovery of admissible evidence (26(b)(1)

- public interest favors judicial policies which promote the completion of litigation- to allow full discovery into all aspects of Thomas’s case could discourage similar settlements, but to prevent discovery could

cause disturbing consequences – shouldn’t allow Ds to buy silence- Thomas’ deposition would probably provide relevant evidence

- D says that P must intervene in Thomas case and try and get a modification of the settlement, but that is not true b/c the agreement itself states that a court can order info. disclosed

- D also says that they should be able to use confidentiality to protect against 3rd parties, but court says------------------------------------

Notes and Problems- Pansy v. Borough of Stroudsburg, 23 F.3d 772 (3d Cir. 1994)

o Police chief disciplined for mishandling parking meter receipts sued sity for violating his civil rights, settled w/ confidentiality agreement through a judgment, and newspaper sought to uncover settlement terms citing a PA “right to know” statute

o 3rd circuit wouldn’t uphold agreement and suggested confidentiality be done through contract instead of judgment- General Motors and Elwell

o Elwell sued GM and settled and court gave injuction prohibiting him from testifying, etc. w/o GM consento Another suit came, Baker v. GM, and wanted to depose Elwell

GM said it would violate settlement agreement, and Michigan injunction, but U.S. S.C. said that the decision of Michigan ct. wouldn’t cover actions brought in other states

- states differ on confidentiality agreements, with TX being the most anti-confidentiality agreements----------------------------------------------

Rule 41. Dismissal of Actionsa) Voluntary Dismissal: Effect Thereof

1) By P; by stipulationo subject to provisions of 23(e), 66, and a U.S. statute, an action may be dismissed by the P w/o order of court by filing a

notice of dismissal before service by adverse party of an answer or motion for summary judgment, whichever is firsto or by filing a stipulation of dismissal signed by all partieso the dismissal is w/o prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by

a P who has once dismissed in any ct. of the U.S. based on or including the same claim2) By Order of Courto except as provided in above paragraph, an action shall not be dismissed at the Ps instance save upon court order and

upon terms and conditions that the court finds to be propero if D has brought a counterclaim, the action will not be dismissed against the Ds objection unless the counterclaim can

remain pending for independent adjudication by the courto if ct. provides dismissal its w/o prejudice unless otherwise specified in order

Assignment 14: Course Packet pp. 57-66 & Rule 68

c. Contracting for a Judgment- If a court has brought a judgment, can the parties by agreement be able to bring about a retraction of the judgment

Neary v. University of CA3 Cal. 4th 273, 834 P.2d. 119, 10 Cal. Rptr. 2d 859 (1992)

Facts:- P sued D for saying his cattle was deseased b/c of deficient ranch mgmt. practices when P said his cattle was poisoned by

pesticide sprayed by government- P was awarded 7 mil.Procedure:- Ds appealed and Ps cross appealed- D and P agreed to drop appeals and settle for 3 mil.- They jointly filed an application for the Ct. of App. To reverse the trial court’s judgment and remand case to trial court for

dismissal with prejudice- Ct. of Appeals rejected the request - Now at CA S.C.Issue: - should a post judgment settlement agreement be allowed?Rule:- as a general rule, parties should be entitled to a stipulated reversal to effectuate settlement absent a showing of extraordinary

circumstances that warrant an exception to this general ruleHolding:- that the stipulated reversal is good and the decided upon agreement shouldn’t be hindered by not allowing itReasoning/Analysis:

A. The Efficiency of Postjudgment Settlements- ct. recognized that settlement agreements “are highly favored as productive of peace and good will in the community”- settlement, even when it requires a stipulated reversal, is rooted in practicality, otherwise spend money on appeal and possible

another whole trialB. Fairness to the Parties- simple fairness requires that the first and most weighty consideration be given to the parties interests and for these to be

accommodated except in extraordinary circumstances- litigation is timely and parties may not wish to go through another round/years of appealsD. Integrity of the Judicial Process- the Ct. of appeal here said that the “stipulated reversal” “would trivialize the work of the trial courts and undermine the integrity

of the entire judicial processo based on faulty premise that litigation is a search for “legal truth” not “simply a dispositional act”

- but the primary purpose of the public judiciary is to “afford a forum for settlement of litigable matters b/w disputing parties- to be sufficient to overcome the strong presumption in favor of allowing stipulated reversals, an asserted public interest must be

specific, demonstrable, well established and compellingF. Potential Collateral Estoppel- Amici curiae contend that a stipulated reversal should be denied whenever a judgment might give rise to collateral estoppel in

future action- can’t do this b/c parties and court agree that no nonparty will be affected by the trial court judgmentDissent: Justice Kennard- when a trial court renders judgment in a case, it is administering the laws of the state and doing substantial justice- b/c stipulated reversals tend to diminish public respect for the judiciary and to discourage prejudgment settlement, appellate

courts should carefully examine the parties’ reasons for seeking stipulated reversal and should attempt to determine whether the judgment sought to be annulled has value for third parties or for the public at large

------------------------------------------------------------------------

U.S. Bancorp Mortgage Co. V. Bonner Mall513 U.S 18 (1994)

Facts:- D defaulted on mortgage and P foreclosed - D filed chapter 11 and filed a reorg. Plan the day before sale- While case pending in S.C. the two stipulated a consensual plan for reorg. Which rec’d approval from bankruptcy court- P wants to vacate the judgment of the ct. of appeals- D opposed the above motionProcedure:

Issue: - should appellate courts in the federal system vacate civil judgments of subordinate courts in cases that are settled after appeal is

filed or certiorari soughtRule:

Holding:- the court won’t vacate the order, and the case is dismissed as mootReasoning/Analysis:- to allow a party who steps off the statutory path to employ the secondary remedy of vacatur as a refined form of collateral attack

on the judgment would disturb the orderly operation of the federal judicial system- vacatur may deter settlements in an earlier stage- it is inappropriate to dispose of cases, whose merits are beyond judicial power to consider, on the basis of judicial estimates

regarding their merits- mootness by reason of settlement does not justify vacatur of a judgment under review----------------------------------------------------------------------------

Evans (D) v. Jeff & Minors (P)475 U.S. 717 (1986)

Terms:- in forma pauperis - or adv. Latin for "in the form of a pauper," referring to a party to a lawsuit who gets filing fees waived by

filing a declaration of lack of funds (has no money to pay). These declarations are most often found in divorces by young marrieds or poor defendants who have been sued

Facts:

- P brought suit against Gov. and State of ID for deficiencies in both the educational programs and the health care services provided respondents

- The Ps were minors who were the responsibility of the state for their education and treatment- Children had emotional and mental handicaps- Johnson (attorney) and the parties never negotiated legal fees since he worked for a legal aid society which was prohibited from

representing clients who were capable of paying their own fees- Ps sued for injunctive relief, costs, and attorneys fees- Ds gave settlement offer with more great injunctive relief, but a waiver of all costs and attorney’s fees- Johnson said he was forced to accept the offer cuz it was the best one he could get, and the he was “forced” to waive his

attorney’s fees- Johnson asked the court to review the feesProcedure:- District Court rejected the ethical underpinnings of Johnson’s argument and approved the settlement and denied the motion to

submit a costs bill- The Ps appealed and the Ds wanted to suspend their obligation to comply with the substantive terms of the agreement until there

was settlement- District court granted motion- Ct. of App. Revoked this, told the Ds to adhere to the settlement, and then eventually invalidated fee waiver and left standing the

remainder of the settlement and instructed the district court to determine fees that were reasonable and remanded for that limited purpose

o “background of Rule 23…compel the conclusion that a stipulated waiver of all attorney’s fees obtained solely as a condition for obtaining relief for the class should not be accepted by the court”

- court granted the Ps petition to proceed in forma pauperis and allowing Johnson to prosecute the actionIssue: - whether attorney’s fees must be assessed when the case has been settled by a consent decree granting prospective relief to the P

class but providing the D shall not pay any part of the prevailing party’s fees or costs- “whether the District Court had a duty to reject the proposed settlement b/c it included a waiver of statutorily authorized

attorney’s feesRule:- basically there is no rule to support Ps claimHolding:- ct. of appeals decision is reversed

o District Court was correct in concluding that the approval of the settlement involved no breach of ethics in this caseo District court did not abuse discretion by approving the fee waiver

Reasoning/Analysis:- Johnson had no ethical obligation to seek a statutory fee award, his duty was to serve his clients loyally and competently- P says that the Fees Act should be seen to forbid a fee waiver that’s coercion

o Ps say a coercieve waiver is when a D in a civil rights action 1) offers settlement on the merits of => value then what Ps could get at trial but 2) conditions the offer on waiving Ps eligibility for attorney’s fees

- Congress has bestowed on the “prevailing party” a statutory eligibility for a discretionary award of attorney’s fees in specified civil rights actions

- Congress enacted the fee shifting provision as “an integral part of the remedies needed to obtain compliance with civil rights laws- Its not suggested the congress intended to forbid all waivers of attorney’s fees – even those insisted upon by a civil rights P in

exchange for some other relief- Unless the LEGISLATURE says that fees be paid whenever a case is settled, the court will rely on the discretion fo the district

courts to appraise the reasonableness of particular class-action settlements on a case-by-case basis

----------------------------------------Rule 68. Offer of Judgment- at any time more then 10 days before the trial the party who is defending can make an offer, and the other party has 10 days to

accept, if accepted they must file a notice with the court and the clerk shall enter judgment- if the offer is not accepted, it will be considered w/drawn and if the final judgment obtained by the offeree is not more favorable

than the offer, the offeree must pay the costs incurred after the making of the offero WHAT THE FUCK???

- when liability has been determined by verdict, but the amt. has yet to be determined, the party adjudged liable may make an offer of judgment as longs as its more than 10 days prior to the commencement of hearings to determine the amt. or extent of liability

Assignment 15: modified Subrin pp. 83-93

A. Introduction

- the costs of litigation should never be underestimated- the ability of courts to order remedies stands as the most concrete benefit of litigationB. Provisional Relief- devices are used for securing the judgment and maintaining the status quo

o both stem from the equity power of courts- equitable relief was traditionally a last resort, available when the formalities and limitations fo the common law system precluded

a just resulto equitable relief is now common in the merged system and is actually provided for by some statuteso the remedies in equity primarily were injunctive relief, while at law the remedies ordinarily were limited to money

damages1. Securing the judgment: Attachments, Garnishments and Sequestration

- Ps often bring a civil lawsuit to obtain or recover real or personal property or to receive money- Securing the judgment – process where P “ties up” Ds property, pending the outcome of litigation- Preliminary injunction – “enjoin the D from transferring the real estate or whatever”- Sequestration – Ps lawyers often trigger this process which would direct a public official to take the Ds personal

property to a neutral location or order the Ds banks or employers to cut off the Ds access to funds or wageso This allows the P to ensure that they’ll be able to collect if they win, and it pressures the D to settle

- receiver – an official designated by the court to “hold and manage property” b/c the property may be “endangered by fraud, by mismanagement or by dissension”

- however since 1960 landmark cases successfully est. that 1) due process guarantees applied to prejudgment contexts and 2) insufficient procedural protection had been in place

o cases extended the requirement of notice and a right to be heard prior to even a temporary deprivation of property or liberty

Fuentes v. Shevin407 U.S. 67 (1972)

Facts:- P purchased a stove, and then a stereo from Firestone Tire and Rubber co., and b/c of a dispute over servicing of the stove she

stopped making payments- Firestone filed an action in small-claims court for repossession and also obtained a writ of replevin from the county clerk (through

a fill in the blank form) and the sheriff took her goods- P instituted this action challenging the constitutionality for the Florida prejudgment replevin procedures under the due process

clause of 14th am. - P sought declaratory and injunctive relief against continued enforcement of the procedural provisions of the state statues that

authorize prejudgment replevinProcedure:- Suit brought in district courts rejected the Ps (both in FL and PA) claims b/c the goods seized from them were not deserving of

due process protection, since they were not absolute necessities of life- Appealed to S.C.Issue: - can courts authorize the summary seizure of goods or chattels in a person’s possession under a writ of replevin filed by the

opposing party, without notice to the defending party, under the 14th am. And due process of lawo this is in regards to two separate cases, one in FL and one in PA

Rule:- central meaning of procedural due process is “parties whose rights are to be affected are entitled to be heard; and in order that

they may enjoy that right they must first be notified”…”this notice and opportunity to be heard “must be granted at a meaningful time and in a meaningful manner”

o under FL statute is says “any person whose goods or chattels are wrongfully detained by any other person…may have a writ of replevin to recover them”

o under PA law a party may obtain a prejudgment writ of replevin through a summary process of ex parte application to a prothonotary

Holding:- judgments of the District Courts are vacated and cases are remanded for further proceedings consistent with the opinion

o ct. held that the FL and PA prejudgment replevin provisions work a deprivation of property w/o due process of law insofar as they deny the right to a prior opportunity to be heard before chattels are taken from their possessor

o if the right to notice and a hearing is to serve its full purpose, then it is clear that it must be granted at a time when the deprivation can still be prevented

Reasoning/Analysis:Florida

- under FL statute there is no requirement for applicant to make a convincing showing before the seizure that the goods are in fact “wrongfully detained,” merely file the form and give up bond double in value of the goods to be seized

- so at same moment the D receives the complaint seeking repossession, it is taken with no prior notice- the D can reclaim the property w/in 3 days by posting own security bond of double the value, but otherwise the property is

transferred to the party filing the writ pending final judgmentPennsylvania- party seeking the writ may simply post w/ application a bond in double value of the property seized, no opportunity for prior

hearing or notices, but this law does not require that there ever be opportunity for a hearing on the merits of the conflicting claims to possession fo he replevied property

- party seeking writ doesn’t have to initiate a court action for repossession, or even formally allege that he is lawfully entitled to the property

- if the person whose stuff is taken wants it back, he has to initiate his own lawsuitCourt Says- these statues fly in the face of giving people a right to be heard- the fact that the party seeking the writ must submit a bond doesn’t matter, and are not a substitute for a prior hearing- its clear that the Ps were deprived of possessory interest in chattels w/in protection of the 14th am.- A temporary, nonfinal deprivation of property is nonetheless a deprivation in the terms of the 14th am. - 14th am. Protection of property protects “any significant property interest,” and not merely the importance or the necessity of the

property- court allows summary seizure of property if it serves an important governmental or general public interestDissent: Justice White’s Dissent omitted

Comments and Questions

- FRCP 64 – even in federal court actions, stuate rules govern most Ps efforts to seize property for purposes of securing the action- The judgment in Fuentes rec’d significant criticism – b/c it could make life worse for consumers by driving up the cost for sellers

or the costs of borrowing by consumer’s, may stop installment sales, make creditor-sellers sign contracts, and could make creditors resort to self-help remedies of repossession as allowed under the Uniform commercial Code

- Flagg Brothers, Inc. v. Brooks (1978)o S. C. made clear that due process is not part of self-help remedies

- Mitchell v. W.T. Grant Co. (1984)o Ct. upheld sequestration procedure despite failure to give prior notice re: seizure to D, b/c the P also had current real

interest in the party, LA required a verified petition or affidavit giving specific facts about nature of claim and grounds for writ, LA procedure required judicial involvement

- North Georgia Finishing, Inc. v, Di-Chem, Inc. (1975)o Ct. rejected as constitutionally deficient the GA proceeding for garnishment, a bank account was impounded w/ no

pending litigation alleging debto Ct found due process violated b/c

Absence of notice or opportunity for D to have an early hearing Lack of participation by judicial officer No requirement for an affidavit by someone with personal knowledge re: facts No requirement that creditor demonstrate probably cause Burden placed on the D to file a bond in order to challenge the garnishment

- Connecticut v. Doehr (1991)o A state statute authorizing prejudgment attachment of real estate w/o prior notice, showing extraordinary circumstances,

and w/o a requirement that bond be posted, was in violation of the due process clauseo

- United States v. James Daniel Good Real Property (1993)o in 1993 the S.C. ruled that absent exigent circumstances, the 5th am.’s due process clause requires the gov’t to afford

notice and a meaningful opportunity to be heard before seizing, under a federal forfeiture statue, property used or intended to be used in drug related offenses

- Calero-Toldeo v. Perason Yacht Leasing company (1974)o Ct. permits seizure of movable property w/o prior notice or hearing, precisely b/c real property can’t be moved

- Mathews v. Eldridge (1976)o Recognized the strong private interest in property, unacceptable risk of error in an ex parte seizure, and the special need

for neutral procedures, given the gov’ts pecuniary interest in the forfeiture proceeding as well as the gov’t lack of burden to present evidence on the statutory defense of innocence of ownership

2. Maintaining the Status Quo- the P may rely on the equitable powers o the courts to seek provisional relief known as temporary restraining orders

and preliminary injunctions

- preliminary injunction – a court directs a party to halt specific conduct or perform specified acts immediately, before the court reaches the merits of the case

- typically, such a hearing can be issued after a rhot hearing, early in the proceedings- court issues a TRO under similar circumstances, but it must be limited in time to 10 days w/ a possible further ten-

day extensiono this can be issued in an emergency w/o prior notice or participation by the party to be bound, although

many jurisdictions require notice and a hearing unless impracticable- court balances potentially uncertain factors when determining this

o whether money damages would prove inadequate as relief for the P who wins at trialo likelihood that the P will prevail on the meritso scope and irreparability of harm the D will suffer if the relief is wrongly grantedo extent to which granting an injunction would harm the public interest

American Hospital Supply Corp. v. Hospital Products LTD.708 F.2d 589 (7th cir. 1986)

Facts:- P sued D for breach of contract- If P wanted to stop contract, they had to say the weren’t going to renew by June 3rd, and they did say the would renew the contract- P on June 4th then announced it was terminating its contract and sent a telegram to the P on June 7th to this factProcedure:- D filed a claim for breach of contract and moved for a preliminary injunction, which was granted after an evidentiary hearing- The injunction stopped the D from purchasing from other distributors and forced the D to inform other dealers that the P was its

authorized distributor- D couterclaimed, alleging breach of contract, fraud, and unfair competitionIssue: - Should the ct. overturn the district court’s grant of injunction?Rule:

Holding:- No, decision affirmed

o Ct. did note that the district court could well consider granting a request to modify it as time passes and public interest considerations potentially change

Reasoning/Analysis:- when granting an injunction the court must decide if it would create irreparable harm for the P or D- you can use a formula to test the effects PxHp > (1-P) x Hd,- four factor test that courts use in deciding whether to grant a preliminary injunction

o whether the P will e irreparably harmed if the preliminary injunction is deniedo wheter harm to P if injunction is denied will exceed the harm to the D if it is grantedo whether the P is reasonably likely to prevail at trialo whether the public interest will be affected by granting the injunction

- issues to consider- P said lost money when breach happened b/c no longer servicing the D and the way that they announced the contract termination

may have made others to perceive the P as doing something unethical or unreasonableo Court doesn’t really put weight on this point, harm may have been cured by the retraction

- at time of breach the P was holding large unsold inventory of the Ds and had advanced them millions in dollarso loss was irreparable b/c of the Ds insolvency, which was apparent when the district judge granted the preliminary

injunction, even though the firm had not yet declared bankruptcyo this ct. found a threat of irreparably harm ot P, but the $$ amount was not knowno So the loss would be irreparable b/c they are about to go bankrupt

- ct concludes that there was a threat of irreparable harm to the P and although the dollar amount is not known with any precision they cannot hesitate to call it great, it seems substantial

- would there be harm to D, the district judge said nono damages b/c of injunction were not what the D wanted to recover from the counterclaimo but what if the Ds claim was won, the P had put up a bond for 5 mil., and the Ds rec’d it?o It still might not make the D whole, b/c maybe the Ds reorganization would end there, before the case is tried on the

meritso But you can’t consider bankruptcy as a result of the injunction, b/c its not a device for reducing wealth, but a device for

distributing the impact of a business failure over various claimants to the bankrupt’s assets

o It is enough that the effect of a preliminary injunction in precipitating insolvency is a factor arguing against the grant of the injunction, and that this might persuade the district judge to grant a motion to dissolve the preliminary injunction, but it doesn’t mean that it was in error

- the district court determined that the D, not the P, broke the contract and although there is some discussion about the loans and demands made on them, it looks as if the district judge was on solid legal ground in his decision making

- D also argues that the injunction is against public interesto Says that the P and D shouldn’t have become competitors, and now the injunction is anti-competitiveo This claims doesn’t work b/c D did not show that its product constituted a genuine market and hence that there was a real

danger of collusion, maybe cuz to do so would show itself as a colluderDissent:- doesn’t thing that the complex law of injunctions can be done in a simple mathematical equation- the judgment in an injunction proceeding cannot be definite, it must be flexible and discretionary, and within the four-pronged test- can’t do this b/c who knows what the numbers in the formula might be?- b/c of the decision, people are going to start arguing purely quantitative reasons, and the district court judges will end up in a

“quantitative straight jacket

Rule 64. Seizure of Person or Property- all remedies providing for seizure of person or property to get a judgment in an action are available under the circumstances and

manner provided by the law of the state in which the district court is held, subject to qualifications1) any statue of the U.S. governs to extent to which it is applicable2) the action in which this remedies is used shall be continued pursuant to these rules3) remedies available include arrest attachment, garnishment, replevin, sequestration , etc.

Rule 65. Injunctionsa) preliminary injunction

1. Notice: must give notice to adverse party2. Consolidation of Hearing With Trial on Meritso any time before or after hearing on preliminary injunction, the court may order tiral of the action on the merits to be

advanced and consolidated with the injunctiono any admissible trial evidence presented at preliminary injunction hearing can be admitted as evidence at trial

b) Temporary Restraining Order; Notice; Hearing; Durationo a temporary restraining order can be given w/o notice if1. it clearly appears that immediate and irreparable injury, loss, or damage will result2. applicant’s attorney certifies to court in writing the effors made to give notice and reasons supporting the claim that

notice should not be grantedo each order shall define the injury and stat why it is irreparable and why the order was granted w/o noticeo shall expire in time not exceeding 10 days unless it is extended for good reason, or the other party submits to the

extensiono reasons for the extension will be a matter of recordo when the TRO is filed, the preliminary hearing must be immediately scheduled and takes place over other actions, and

the applicant must then state why they need an injunction, or the TRO will be dissolvedo if w/in two days of notice, the receiving party may file motion for its dissolution or modification, and the ct. shall

proceed to hear and determine the motion expeditiouslyc) Security

o no restraining order or preliminary injunction will be granted except upon the giving of security by the applicant, in sum determined by the court, except for the U.S. or agent of U.S.

d) Form and Scope of Injunction or Restraining ordero every order granting injunction and restraining order will set form reasons for its issuance that are specific, descriptive

detail the acts that are wished to be constrainedo it is binding only upon the parties to the action, their officers, attorneys and those persons in active concert or

participation w/ those who receive actual notice of the ordere) Employer and employee; interpleader, constitutional cases

o these rules don’t modify any U.S. statute re: TRO and prelim. Injunction for employer/employee, or provision sof Titke 28

f) Copyright Impoundmento rule applies to copyright impoundment proceedings

Assignment 16:

Glannon pg. 389-407

FRCP Rule 56. Summary Judgment

a) For Claimanto party may seeking to recover – may ask for summary judgment, with or without supporting affidavits, at any time after

the expiration of 20 days from the commencement of the action or after service of a motion for summary judgment by the adverse party

b) For Defending partyo a party who has a claim, etc. against them may, at any time, move with or w/o supporting affidavits for summary

judgment in the party’s favor as to all or any part thereofc) Motion and Proceedings Thereon

o motion shall be served at least 10 days before the time fixed for hearingo adverse party may serve opposing affidavits prior to the day of hearingo judgment sought shall be rendered if the docs show that there is no genuine issue as to any material fact as a matter of

lawo summary judgment, interlocutory in character, may be rendered on the issue of liability alone, although there is a

genuine issue as to the amount of damagesd) Case Not Fully Adjudicated on Motion

- if after motion judgment is not rendered for all the relief asked, at trial the ct. may ascertain what material facts exist w/o substantial controversy and what facts are actually in good faith controverted

- ct. can then make an order specifying the facts that appear w/o substantial controversy, including the extent to the amt. of damages or other relief not in controversy, and directing such further proceedings in the action as are just

- upon trial of the action the facts so specified shall be deemed established, and the trial shall be conducted accordinglye) Form of Affidavits; Further Testimony; Defense required

- supporting and opposing affidavits should be made and sworn and certified copies of all papers or parts referred to in the affidavit should be attached

- when a motion is made and supported like in this rule, the adverse party may not rest upon the mere allegations or denials of the adverse party’s pleading, but must by affidavits set forth specific facts showing that there is a genuine issue for trial

- if adverse party does not respond, summary judgment, if appropriate shall be entered against the adverse partyf) When Affidavits are unavailable

- should it appear from the affidavits of a party opposing the motion that the party cannot for reasons state present by affidavit facts essential to justify the party’s opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is justg) Affidavits Made in Bad Faith

- if the ct. sees any of the affidavits presented pursuant to this rule for bad faith or delay purposes, ct. shall order the party employing them to pay the other party the amt. of reasonable expenses which the filing of the affidavits cause d the other party to incur, including reasonable attorney’s fees, and may be adjudged guilty of contempt

Assignment 17.

Subrin pp. 431-42

3. Trilogy Cases- Celotex and two other cases decided in the same term were read by most commentators as an attempt to dissuade and terminate

what the majority of the Supreme Court thought was a growing number of meritless lawsuits

Celotex Corp. V. Catrett477 U.S. 317 (1986)

Facts:

Procedure:- district court granted motion for summary judgment against respondent b/c they weren’t able to prove that the decedent had been

exposed to Celotex asbestos- ct. of appeals reversed, holding that petitioner’s failure to support its motion with evidence tending to negate such exposure

precluded the entry of summary judgment in it s favor- S.C. reverses the decision of the DC CircuitIssue: - Was the court of appeals decision correct?

Rule:- “the party opposing the motion for summary judgment bears the burden of responding only after the moving party has met its

burden of coming forward with proof of the absence of any genuine issues of material fact”Holding:- No. The petitioner can say that the respondent doesn’t have any proof, but the court didn’t consider whether or not the respondent

in this case had that proof. Judgment of the court of appeals is REVERSED. Case remanded for further proceedings consistent with this opinion

Reasoning/Analysis:- D said that P “failed to produce evidence that any Celotex product was the proximate cause of the injuries alleged within the

jurisdictional limits of the District courto P had deposition of decedent, letter from decedent’s employer who P would call at trial, letter from an insurance

company, which all tended to est. that the decedent had been exposed to petitioner’s asbestos products in Chiccago during 1970-71 and then the D said the docs were hearsay and could not be considered in opposition to the summary judgment motion

- ct. of appeals said that the Ds summary judgment motion was rendered “fatally defective” by the fact that petitioner “made no effort to adduce any evidence , in the form of affidavits or otherwise, to support its motion”

- S. Ct. thinks the ct. of appeals is inconsistent with the standard for summary judgment set forth in Rule 56(c)o Rule 56(c) mandates entry of summary judgment against a party who fails to make a showing sufficient to est. the

existence of an element essential to that party’s case, and on which that party will ear the burden of proof at trial So a complete failure of proof concerning an essential element of the nonmoving party’ s case necessarily

renders all other facts immatieral- ct. also doesn’t see a requirement that the moving party support its motion with affidavits or other similar materials negating the

opponent’s claim- the “burden on the moving party may be discharged by “showing” that there is an absence of evidence to support the non-moving

party’s case- the ct. of appeals didn’t and should address whether the Ps claim that there evidence would be admissible at trial, and therefore

the evidence presented provided proof Concurring:- ct. of appeals was wrong in holding that the D must always support his motion with evidence or affidavits showing the absence of

a genuine dispute about material facto “but the movant must discharge the burden the Rules place upon him: it is not enough to move for summary judgment

w/o supporting the motion in any way or with a conclusory assertion that the P has no evidence to prove his case”Dissent: (Justice Brennan and Justice Blackmun)- ct. has not clearly explained what is required of a moving party seeking summary judgment on the ground that the nonmoving

party cannot prove its case- does not believe that Celotex met its burden of production under FRCP 56, so he dissents- Section I

o Summary judgment is appropriate where the court is satisfied “that there is no genuine issue as to any material fact and that the moving part is entitled to a judgment as a matter of law”

Burden of est. the nonexistence of a genuine issue is on the party moving for summary judgment and the burden has two distinct components

Initial burden of production (shifts burden to non-moving party) Ultimate burden of persuasion, always remains on the moiving party

o “a party who moves for summary judgment on the ground that the nonmoving party has no evidence must affirmatively show the absence of evidence in the record”

if the nonmoving party shows that evidence in the record, the moving party must show why it would be inadmissible,

o “Celotex could seek summary judgment on the ground that the P could not prove exposure to Celotex asbestos at trial, however Celotex was still required to satisfy its initial burden of protection.”

- Section IIo Disagreemtn with court concerns the application of these principles to the facts of this caseo The P DID provide evidence in this case and Celotex admitted ito “no question that Celotex failed to discharge its initial burden of production” o “Celotex was required to attack the adequacy of this evidence and their failure to fulfill this simple requirement

constituted a failure to discharge its initial burden of production under Rule 56 and thereby rendered summary judgment improper”

Comments and Questions- P defeated summary judgment motion on remand to the appeals court that heard the case, judge wrote an opinion denying Ds

summary judgment motion

- Most commentators as the time read the trilogy as signaling that the federal courts would be more favorable disposed to summary judgment motions than before

- Second case in the trilogy was Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)o District court granted summary judgment on the grounds that in libel suits Ps needed to prove actual malice an d the P

did not show that it would have evidence at the trial permitting such a findingo Appellate ct. reversed b/c P didn’t have to give the evidence at the summary judgment stageo S.C. said (justice white) “summary judgment motion requires the court to predict what would happen to the case at the

directed verdict stage”o Rehnquist and Burger argued that is P could show evidence of malice at summary judgment state, they didn’t see how a

judge could rule it to be insufficient evidence for the jury to try unless the judge made a credibility determination- Matsushita v. Zenith, 475 U.S. 574 (1986)

o Dealt with a claim by Zenith Co. against 21 Japanese companies manufacturing or selling consumer electronics products in America or controlling American firms that sell the products

o Claimed that the Japanese companies were keeping prices in Japan artificially high to subsidize really low prices in U.S. and to push American companies out of the market – 5 company rule, no more then 5 distributors each

o District court granted Ds summary judgment, appeals court reversed, and S.S. reversed and remanded Court ruled “where the record taken as a whole could not lead a rational trier of fact to find for the non-moving

party, there is no genuine issue for trial Court said zenith had burden of proof and had failed to present evidence at summary judgment stage Said that the Ps theory did not make economic sense and the theory would raise not lower prices

o Dissent by White, Brennan, Blackmun, and Stevents Argued that the majority had disregarded traditional summary judgment doctrine Found the majority’s disregard for the expert’s proposed testimony a clear violation of the judicial obligation

not to weigh evidence and assess credibility when ruling on a summary judgment motion Basically said that the court may not like the economic theory, but that the P had a right to present its evidence

- since summary judgment motion can dispose of an entire case w/o there being a trial, courts have developed a number of means to protect the parties, particularly the nonmoving party

o usually courts will permit oral args. On summary motions- 3rd Cir. Says that when a federal district court elects to convert a notion to dismiss into a motion for summary judgment, it must

expressly notify the parties of the conversiono other courts have held that t a party has constructive notice that the motion to dismiss has been converted to a summary

judgment motion if materials outside of the pleadings have been submitted- some courts have refused to permit summary judgment to be granted against pro se Ps, especially prisoners, unless the represented

party (normally the D) explains the consequences of a summary judgment motion to the pro se Po Irby v. New York Transit Auth., 262 F.3d 412, at 414 (2d Cir. 2001)

Appeals court instructed district courts that “the moving party should routinely provide a pro se party with notice of the requirements of Rule 56, and of the consequences of noncompliance therewith, contemporaneous with the serving of the motion for summary judgment on the pro se litigant

In the absence of such action, the district court should promptly provide the pro se with such required notice- the very notion of summary judgment and directed verdict presupposes that judges are permitted to enter the domain of factual

issueo so that juries don’t act irrationally, judges must be certain that before the jury can decide a factual issue on behalf of the

party with the burden of production, there is sufficienty evidence to permit reasonable perople tomake suahc a findingo judiciary has created a threshold legal issue in order to decide the factual issue: a legal question whether there is

sufficient evidence to make a rational factual determination

Assignment 18Subrin p. 375-389

Chapter 5: The Right to Jury Trial and Judicial Control of ResultsA. Values and historical Background

1. Introduction- fewer than 3% of commenced civil cases terminate with a trial about 50% of those cases are tried by jury- the right to jury trial is claimed in a substantial percentage of cases and the filing, prepearation, and settlement of lawsuits is often

done “in the shadow” of educated guesses about what a jury would ultimately decide if a jury trial did take place- major tensions in American civil procedure emerge in debates about the civil jury and in the doctrine that has developed both to

protect and to control the jury- 7th am. States “in suits at common law, where the value in controversy shall exceed $20, the right of trial by jury shall be

preserved, and no fact tried by a ajury shall be otherwise re-examined in any Court of the U.S., than according to the rules of the common law”

2. The Debate Over the American Civil Jury- in civil cases, juries are instructed to impartially weigh the evidence, to decide what actually happened in the dispute, and to apply

the law to those facts- now about 80% of jury trials in the world are conducted in the U.S.- many opponents say that jury trials are outmoded

o those who oppose use of civil jury usually make efficiency args. Emphasizing the amateurish nature of lay jurors, and that they are influenced by prejudice and passion

- supports use empirical data to dispute assumptions about inefficiency and incompetenceo say that the jury legitimizes the process, curbs arbitrary judicial behavior, inculcating community values, and permitting

citizen participation and education

Jerome T. Frank, Courts on Trial110-11l, 129-130 (1949)- Three theories of the jury’s function:

o 1. (naïve theory) jury merely finds facts and doesn’t concern itself with legal rules, but just accepts those given by judgeo 2. (sophisticated theory) juries find facts but in its deliberation uses legal reasoning to apply to those facts the legal rules

it learned from the judge (assumes jury understands what judge said)o 3. (realistic theory) juries are neither able to, nor do they attempt to, apply the instructions of the court, decide what they

want and bring it accordingly in many cases the jury determine the respective legal rights and duties of the parties to the suit judgment of the court usually follows the general verdict of the jury, so that the verdict results in a decision

which determines those rights and duties- objection to third view

o it is too sophisticated and implies that the members of the ordinary jury say that they don’t like the legal rule the judge told them, and so decide to apply one of their own making

o what really happens is that juries don’t understand what the judge said to them about the applicable ruleo many juries act on their emotional responses to the lawyers and witnesses, not any legal rule

Harry Kalven, the Dignity of the Civil Jury50 U.Va. L.Rev. 1055, 10599-167 (1964)- on average a bench trial would be 40 percent less time consuming than a jury trial of the same case- 3 main heads under which criticism and defense of the jury have fallen

o 1. series of collateral advantages and disadvantages such as… Positive

the fact that the jury provides an important civic experience for the citizen that b/c of popular participation the jury makes tolerable the stringency of certain decisions b/c juries are transient in personnel, they act as a lightning rod for animosity and suspicion, which

might otherwise be focused on the more exposed judge guarantee of integrity b/c more difficult to bring 12 people then 1

Negative Jury fees are an added expense to administration of justice Jury service imposes unfair economic and social burden on those forced to serve Exposure to jury service disenchants the citizen and leads him to lose confidence in the administration

of justiceo 2. competence of the juryo 3. adherence of the jury to law, what its admirers say is its sense of equity and its detractors view as its taste for anarchy

- empirical evidence offers insight on the last two headingso to say that jury adjudication is of low quality, one must say that jury decisions vary in significant degree from those a

judge would have made study shows that judges and juries agree in 79% of personal injury cases on issue of liability jury awards averaged about 20% higher than those of the judge

- if the jury has a propensity not to understand, as some claim, that propensity should be more evident in the cases rated by the judges as difficult rather than those rated easy

o disagreement should be higher in cases which the jury doesn’t understand since if the jury misunderstands the case, it must be deciding on a different basis than the judge

o so jury should disagree more often with the judges in difficult cases then easy ones – BUT the level of disagreement remains the same

- the trail has structured the communication to the jury far more than the usual comment recognizes and had made certain points quite salient

o a jury can operate by collective recallo the jury understands well enough for its purposes and that its intellectual incompetence has been vastly exaggerated

Valerie P. Hans and Neil Vidmar, Judging the Jury247-249 (1986)- issues to consider when judging the jury - first concerns the alternatives to the jury

o in European countries, mixed tribunals composed of a judge and a prominent layperson decide legal caseso are judges better at deciding cases?

Judges have training in law and attempt to be more scientific in their approach to the evidence BUT a jury containing a person proficient in car repair might be better at assessing evidence in a product

liabilities case involving a car manufacturer than a judge whose experience is more limited- trials are about justice as well as law

o overwhelming majority of judges are still white males coming from a privileged sector of society, and often their views of the world reflect their backgrounds which lead to a rigid perspective of justice and fairness not consistent w/ that of the general community

- tow other aspects to the political side of the juryo its “legitimizaing function” – people obey the law b/c they grant it legitimacy o also has a socializing function – allows people to contribute to the legal system and the legal system contributes, through

jury, to the education of the people

Comments and Questions- jury verdicts help lawyers and their clients assess the value of cases for settlement purposes and they influence behavior

o one purpose of tort liability system is to deter unreasonable behavior- most people serving on juries find it to be a rewarding experience- recent studies continue to find that by any measure, juries appear to act competently most of the time- 1998 symposium focused on American Civil Jury

o many empirical studies/papers conclude that attacks on the American jury – allegations of exorbitant and irrational verdicts and jury-prejudice, particularly against businesses or corporations are largely mythology and unsupported by data

o another paper argued that trial judge throughout country are generally very positive about the role of juries in our civil justice system

o third paper demonstrated that “the simplistic illusion of the antibusiness jury fails to accord with a much more complex reality

- that both judges and juries hold corporations more responsible than individuals conducting similar activities seems to come from the rational perception that corporations should be held to a higher standard b/c of their greater knowledge of potential harms and their greater ability to reduce risks

- one major battleground over the positive/negative of juries is punitive damageso 3 major empirical and normative questions involved in the debate, and non of them yield clear-cut answers

1. do juries award punitive damages dramatically more frequently and in large amounts than judges there is contradictory evidence on this issue

2. are jury verdicts, and particularly punitive damages and the threat therof an effective means of deterring undesirable and in some cases dangerous behavior

again split b/c the states that do and do not allow them seem to have similar results 3. when juries award huge punitive damages does this constitute good evidence of jury irrationality and

undesirable emotionality McDonald’s case – yeah its just coffee, but they had rec’d complaints on the 20 degree higher then

competitor coffee, and the woman was really hurt – so two competing viewso should also consider that one wanting to dramatically alter our heavy reliance on civil litigation and juries would have to

consider whether to forgo whatever deterrence and compensation the current private civil litigation system provides or whether to replace it with gov’t activity of a different and more substantial nature

- very difficult to obtain a sensible perception on the accusation that jurors are “emotional” and don’t apply the law to facts in a rational way as they should

o but emotional component can’t be eliminated from any tribunal, whether by jury or judge, but one HOPES that legal training makes judges more dispassionate than those sitting on juries

- Three current debates about the juryo 1. SIZE - in a series of decisions in the 1970s the S.C. said that in both criminal and civil cases, juries smaller than 12 do

not violate constitutional requirements court said shouldn’t be < 6 new studies and empirical evidence shows that this is not a good thing b/c it heightens unpredictability, reduces

likelihood of representation of minorities, makes it more difficult for a dissenter to present position, reduces collective memory and experience of the group

o 2. Unanimity –

7th am. Was held to require unanimous verdict but recently the ct. held that the 14th am. Doesn’t require a unanimous verdict in a state criminal case, but that the 6th am. Require unanimous verdict in a federal prosecution

FRCP 48 requires unanimous verdict unless parties otherwise stipulate Some view that “human experience teaches that polite and academic conversation is no substitute for the earnest

and robust arg. necessary to reach unanimityo 3. Complexity

some argue that in complex civil cases which are apt to last a long time, the constitution doesn’t require a jury trial

disagreement b/w circuits whether there is no complexity exception (9th cir.), an exception based on the due process arg. (3rd cir.), OR that no exception exists but if there WAS an exception it can’t reach a case where the trial court finds only that “it would be most difficult, if not impossible, for a jury to reach a rational decision”

some scholars say that the jury is ill-equipped to make decisions on complex cases, and urge the S.C. that as White said in Ross v. Bernard that “the practical abilities and limitations of juries” is one appropriate criterion for determining the scope of the right to a jury under the 7th am.

- modern jury debate has revolved less around abolishing the jury altogether than around possible modifications of the jury systemo allowing jurors to take notes during trialo to ask questions of witnesseso rewriting instructions in simpler languageo giving legal instruction before evidence is heardo permitting jurors to have written copies of instructiono inc. juror feeso reducing juror down time by scheduling attorney/judge conferences when jurors are not present

Assignment 19.

Subrin pp. 389-400

3. The Historical Background of the Modern American Civil Jury- early juries were committees assembled by William the Conqueror to determine who owned various tracts of land in a given area- later, trial by jury became an alternative to other forms of trial available, or compurgation (which involved various forms of battle

or ordeal, in which each side would bring forth friends to swear the truth of his position)- earliest juries were groups of witnesses who discussed the case amon themselves and arrived at a verdict- gradually courts recognized the need for jurors who based their verdict not on personal knowledge but only on the evidence

presented in court- during colonial period, juries were perceived to be guardians of local community values against outsider judges appointed by the

royal governor- at constitutional convention no provision for civil jury trials was adopted int eh original document

o Hamilton argued that the right to civil jury trial was not fundamental to liberty and given the diversity of practice throughout states, it would be impossible to draft a provision that would satisfy all functions

- anti-federalists cried out against this and got the 7th am. In 1791 which provides the right to a jury trial in civil cases

B. The Right to Jury Trial in Civil Cases in Federal Court- the S.C. under Justice Story declared that the common law in the constitution should be determined by looking at the common law

of Englando later courts refined this analysis to require looking at the common law of England in 1791, when the 7th am. Was adopted

- two complications aroseo first what about civil causes of action created by statue after 1791o after the merger of law and equity, what are the rights of parties who raise both equitable and legal claims

Chauffeurs, Teamsters and Helpers, Local No. 391 v. Terry494 U.S. 558 (1990)

Facts:- Ps, all members of a union, worked for D and D closed down some terminals and reorged- The D promised the Ps special seniority rights in relation to inactive employees in the new site- After Ps worked for 6 weeks they were laid off and recalled several times and the Ps filed grievance with union contesting the

order of the layoffs and recalls- Ps also challenged the Ds policy of striping any laid off person of their seniority rights b/c they said it breached the collective-

bargaining agreement by giving inactive drivers preference over Ps

- So the union told D to lay off the inactive drivers, recall the Ps and restore seniority rights, and recognize them until the inactive drivers were properly recalled, which D did

- Soon afterward the D recalled the inactive employees thereby allowing them to regain seniority rights over respondents and in the next round of layoffs the Ps had less seniority and were laid off first

- Ps filed another grievance, b/c said that the Ds did it to circumvent the initial decision of the grievance com. - The grievance com., at end of hearing, decided that D had not violated the com. First decision- The D kept laying off and recalling workers, Ps filed another complaint, but the union refused to hold hearing saying that it had

been determined by prior proceedings- Ps filed action in district court alleging that the D breached collective-bargaining agreements and that union violated its duty to

fair representation- Ps asked for injunction requiring Ds to cease illegal acts and reinstate them to their proper seniority status with compensatory

damages for lost wages and health benefits- In 86 D filed for bankruptcy and the action was voluntarily dismissed along with claims for injunctive reliefProcedure:- Ps asked for jury trial, and union moved to strike the jury trial on ground that no right to a jury trial exists in a duty of fair rep. suit

o District court denied the motion to strike- 4th cir. Affirmed trial court holding that 7th am entitled Ps to jury trial of their claim for monetary relief- S.C. granted cert to resolve circuit conflict on issueIssue: - does an employee who seeks relief in the form of back pay for a union’s alleged breach of its duty of fair representation have a

right to trial by jury?Rule:- employees must prove the same two facts to recover money damages that the employer’s action violated the terms of the

collective-bargaining agreement and that the union breached its duty of fair representationHolding:- Yes. Judgment affirmed. 7th am. Entitles such a P to a jury trialReasoning/Analysis:- 7th am. Allows for jury trial in suits at common law > $20- suits at common law refers to “suits in which legal rights are to be ascertained and determined, in contradistinction to those where

equitable rights alone are recognized and equitable remedites are administered- so the right extends to cause of action created by congress- since nothing like collective-bargaining in 18th century since it was illegal, court has to try and find a similar cause of action

o Not like arbitration analogyo Kind of like an action by a trust beneficiary against a trustee for breach of fiduciary duty

Doesn’t persuade us to characterize respondents’ claim as wholly equitable Duty of fair rep. is analogous to a claim against a trustee fo breach of fiduciary duty The §301 issue is comparable to a breach of contract claim, a legal isue Not like attorney malpractice

o The Ps action encompasses both equitable and legal issues, so the fist part of 7th am. Inquiry leaves court in equipoise as to whether respondents are entitled to a jury trial

- b/c ct. concludes that the remedy Ps seek has none of the attributes that must be present before we will find an exception to the general rule and characterize damages as equitable, we find that the remedy sought by respondents is legal

o back pay sought by Ps is not for restitution – Union isn’t wrongfully holding it, but are wages they would have rec’d from McLean if the union had processed employees’ grievances properly

congress specifically said that “back-pay” was equitable relief, but said nothing regarding duty of fair representation, so clearly different then back-pay for Title VII stuff

Ct. Holds that back pay sought in this duty of fair representation action is legal in natureo a monetary award “incidental to or intertwined with injunctive relief” may be equitable, but since Ps just want money

damages, this is absent from case- considering both parts of the 7th am. Inquiry find that the Ps are entitled to a jury trial on all issues presented in their suit- the money damages that the Ps seek are tye type of relief traditionally awarded by courts of law, so the 7th am. Entitles the PS to a

jury trial, so the court affirms the judgment of the court of appealsConcurring: Justice Brennan- agree that Ps seek a remedy that is legal in nature and that the 7th am. Entitles them to jury trial- don’t think the court should have use the particular historical analysis b/c the historical test can and should be simplified- since the existence of a right to jury trial turns on the nature of the remedy, absent congressional delegation to a specialized

decisionmaker, there remains little purpose to our rattling through dusty writs- modern statutory rights didn’t exist in the 18th century and even the most exacting historical research may not elicit a clear

historical analog

- he wants to rest the historical test required by the 7th am. Solely on the nature of the relief sought, even though it won’t be self-executing in all cases b/c the courts would still be asked which remedies were traditionally available at law and which only in equity

o inquiry involves fewer variables and simpler choices and is more manageable that the scholastic debates- ct. can guard this right and save courts from needless and intractable excursions into increasingly unfamiliar territory simply by

retiring that prong o the 7th am. Test which has already been cast in doubtDissent: Justice Kenndy, O’Connor and Scalia- to determine whether rights and remedies in a duty of fair representation action are legal in character, we must compare the action

to the 18th century cases permitted in the law courts in England and must examine the nature of the relief sought- it seems the duty of fair representation actions resembles an equitable trust action more than a suit for malpractice

o DISSENT b/c the duty of fair representation action “is more similar to cases that were tried in courts of law than to suits tried in courts of equity” the decision is in favor or equitable action and the inquiry should end

- like a trust b/c a trustee is required to serve all beneficiaries with impartiality and may not ordinarily be directed to act by a beneficiary

- ct. relies on two lines of precedents to overcome the conclusion that the trust action should serve as the controlling modelo 1. cases in which the court has considered simplifications in litigation resulting from modern procedural reforms in the

federal courts cases show majority should look at character of individual issues rather then claims as a whole

o 2. the significance of the remedy in determining the equitable or legal nature of an action for the purpose of choosing the most appropriate analogy

majority decides that Ps have right to a jury b/c they seek money damageso these authorities do not assert the Court’s holdings

- in three cases the court has found a right to trial by jury where there are legal claims that, for procedural reasons, a P must have raised in the courts of equity before the systems merged

o Beacon v. Westover Beacon got jury trial b/c it raised antitrust issues in counterclaims and ct. wouldn’t let Fox (Westover???)

deprive it of a jury by taking advantage of modern declaratory procedures to sue first FRCP allow liberal joinder of legal and equitable actions Declaratory Judgment Act, 28 U.S.C. reserves the right to jury trial to both parties

o Dairy Queen v. Wood P asking in complaint for an equitable accounting for trademark infringement can’t deprive the D of a jury trial

on contract claims subsumed w/in accountingo Ross v. Bernhard

P shareholder demanded a jury trial in a derivative action asserting a legal claim on behalf of his corporation D opposed a jury trial Ct. recognized that only courts of equity had procedural devices allowing shareholders to raise a corporation’s

claims, but ruled that modern procedure allowed trial of the legal claim to a jury’o three cases responded to the difficulties of the merged system

b/c distinct courts of equity no longer exist, the possibility or necessity of using former equitable procedures to press a legal claim no longer will determine the right to a jury

HERE the Ps are asserting an equitable claim so the above cases are inapplicable- ct. has not adopted a rule that a statutory action permitting damages is by definition more analogous to a legal action than to any

equitable suito in each case look to the remedy to determine whether it places an action w/in the de. Of “suits at common law”

- ct. must adhere to the historical test in determining the right to a jury b/c the language of the constitution requires ito 7th am. Preserves the right to jury trial in civil cases, and can’t preserve a right of 1791 w/o looking to history to ID it

- if congress hasn’t provided for a jury trial, ct. is confined to the 7th am. To determine whether one is requiredo judgment of our own times not always preferable to the lessons of history and history must inform the judicial inquiry

Comments and Questions- although the S.C. continues to apply the historical test, it made room for consideration of functional criteria and policy in a 1996

7th Am. Case- Markman v. Westview Instruments, Inc.

o Unanimous ct. agreed that in a patent infringement claims the interpretation of the patnet claim is a matter of law to be decided by the court, not the jury

o Ct. took into consideration “the relative interpretative skills of judges and juries and the statutory polices that ought to be furthered in allocating the interpretation to either judge or jury

- In determining whether statutorily created causes of action deserve a jury trial, the S.C. applies the general 7th am. Test quite differently

o Looks to the legislative purpose (if Congress created an administrative scheme for adjudication outside the traditional court or delegated it to specialty court, then there is likely no right to jury trial

o Court looks to whether the statute creates a mechanism for enforcing rights that are primarily public or private Public rights – no jury trial Private rights enforcement schema, then jury trial may be available for adjudication of those private rights

o Ct. looks at the remedies provided in the statute If traditional “legal” remedies then jury trial may be available, if the remedies are equitable in nature, then trial

by jury may be denied w/o violating the 7th am.- regarding disc. Suits under CRA, ct. has split its decisions

o Curtis v. Loether it held that litigants in a Title VIII housing discrimination lawsuit were entitled to trial by juryo In cases of intentional discrimination on basis of race, ct. has provided trial by jury in suits brought under §1981, but it

did not for those under Title VII 91 CRA specifically provides or trial by jury in intentional employment dis. Cases on basis of race, gender, and

religion S.C. hasn’t ruled on issue, but most lower courts agreed that there is no right to jury trial for nonintentional or

“disparate impact” discrimination cases- the S.C. said unequivocally that, where equitable and legal claims are joined in the same action, the legal claims must be tried to a

jury before the court resolves any equitable issueso at least one federal cir. Court has ruled that a judge may determine an issue common to equitable and legal claims prior

to a jury trial when the claims were originally brought separately and have since been consolidated under FRCP 42- the 7th am. Is one of the few bill of rights guarantees that has not been applied to the states through the 14th amendments’ due

process clauseo most state constitutions provide a right to trial by jury, although the form of the right varies from state to state, with some

providing greater right to jury trial then the federal courts and others providing a restricted right

FRCPRule 38. Jury Trial of Right

a) Right Preserved. – get jury trial as declared in 7th Am. Or U.S. statuteb) Demand. – either party may demand a jury trial by 1) serving other party in writing within 10 days of last pleading and 2)

filing the demand as required by Rule 5(d)c) Same: Specification Issues – party can specify the issues which it wishes so tried, otherwise it will be assumed all issues are

for trial. If party only demands some, other party can counter and claim othersd) Waiver – failure to serve and file demand is a waiver, and a demand for a jury trial can’t be withdrawn w/o the consent of the

partiese) Admiralty and Maritime Claims – these don’t give right to trial by jury on issues of admiralty or maritime claims and the

meaning of Rule 9(h)

Rule 39. Trial by Jury or by the Courta) By Jury – when demanded as in Rule 38, the action shall be on docket as jury action, and all issues demanded shall be by

jury unless1. parties or attorneys consent (written or oral) to trial by the court sitting w/o jury2. court finds that a right to jury trial on some or all issues doesn’t exist under 7th. Am. Or U.S. Statute

b) By the Court – issues that aren’t demanded for trial by jury as in Rule 38 will be tried by the court, unless the court in its discretion orders a trial by a jury on any or all issues

c) Advisory Jury and Trial by Consent – in all actions not triable of right by a jury the court may try any issue with an advisory jury, except in actions against the U.S. where a U.S. statute provides for trial without a jury, the court, w/ consent of parties, may order a trial with a a jury whose verdict has same effect as if the jury trial had been a right

Assignment 20Subrin pp. 401-413 &416-19

C. Jury Selection: Techniques and purposes, including peremptory challenges1. Attorney Behavior

- in most courts a pool or panel of potential jurors has been selected by lottery in advanceo jurors are given information on duties of juroro lawyers are given a list of basic information about who is in the poolo in federal court the lawyers are given a list that contains the pool member’s names, addresses, occupations, and spouses’

occupationso lawyers won’t see list of who is in pool until right before the jury selection

- next have voir dire examination of the prospective jurors as part of selection processo purpose is to disqualify jurors who cannot be impartial and fair

o used to be that lawyers asked most questions, but now its mainly the judge asking preliminary questions and the attorney’s may add some of their own

- lawyers can challenge jurors either for cause or with peremptory challenges: for which a cause is not giveno number of challenges for cause is unlimited and this reasons are sometimes listed in statuteo statues normally list the number of permitted peremptory challenges, and sometimes judges can add to the numbero lawyers are reluctant to use peremptory challenges unless they really have to b/c a subsequently juror could be worse

then the bumped one

Comments and Questions- FRCP 47 leaves to the judge’s discretion whether to conduct examination of potential jurors herself or permit the parties or their

attorneys to conduct the examination- There is a study which indicates that the verdicts of juries selected according to the current procedure and those selected at

random with no attorney input do not differ significantly

Valerie P. Hans and Neil Vidmar, Judging the Jury79-80 (1986)- a federal jury awarded MCI $600 mil. In an antitrust case against AT&T, and antitrust awards are automatically tripled for

punitive damages, so award of 1.8 billion- Ps had used jury researchers and mock jury panels to decide how to best present their case to win

o First conducted telephone pollso Then personal interviews – obtained demographic info.o Three mock jury sessions

- learned not to give a specific number of the damages actually done to MCI by AT&T, but just leave number in air, to get larger figure

- from the community surveys and the mock juries the MCI attorneys learned what kinds of jurors to look for and to eliminate during the selection process

o also obtained tactical clues about how to present their case to different types of individuals- the jury award was judged to be excessive and on appeal it was overturned- second jury awarded MCI only 37.8 million

Federal Jury Selection Statutes28 U.S.C. §1861 Declaration of Policy- all litigants in federal courts entitled to trial by jury shall have right to grand and petit juries selected at random from a fair cross

section of the community- all citizens shall have opportunity to be considered for service on grand and petite juries, and shall have an obligation to serve as

jurors when summoned for that purpose28 U.S.C. §1862 Exemptions- no citizen shall be excluded from service as juror on account of race, color, sex, national origin, or economic status28 U.S.C. §1865 Qualification for Jury Service- judge decides whether a person is unqualified for, or exempt, or to be excused from jury service- clerk shall enter determination in space provided on juror qualification form

o if person doesn’t respond to summons, it will be noted on the list- judge shall deem any person qualified to serve as juror unless

o not citizen of U.S. who is 18o can’t read, write, and understand language English languageo unable to speak English languageo incapable, by reason of mental or physical infirmity to render satisfactory jury serviceo has a charge pending against him for the comission of a crime punishable by imprisonment for >1year and his civil rights

have not been restored

Comments and Questions- most common method of juror selection I the use of voter registration lists covering the district or division in which the court

resideso want a fair cross section of the community – so diverse pool

- S.C. has ruled that the requirement of a fair cross section of the community applies only to the jury pool as a whole, not to any one particular jury

2. Peremptory Challenges and Discrimination- attorney’s use their peremptory challenges to remove jurors on grounds that did not amount to cause

o grounds range from gut feelings to the systematic exclusion of certain types of people

o most notorious use of challenges are to exclude members of a single race, ethnic group, or gender on the basis of often unproved assumptions and beliefs

- Batson v. Kentucky, 476 U.S. 79 (1986)o In a criminal case, the S.C. ruled that the use of peremptory challenges by the gov’t to exclude black jurors violated the

14th am. Equal protection rights of a black Do Once the D makes a prima facie showing that the prosecution used peremptory challenges to exclude members of a

particular racial or ethnic group from the jury, burden shifts tot eh gov’t to come forward with a race neutral explanation- Powers v. Ohio, 499 U.S. (1991)

o Court extended the right to a white criminal D who protested the prosecution’s exclusion of blacks from the jury- under these 14th am., which is where the cases above derive their rights, only the gov’t is prohibited from taking away individual’s

equal protection of the law

Edmonson v. Leesville Concrete Co., Inc.500 U.S. 614 (1991)

Facts/Procedure:- P worked for D and claimed negligence in that one of the Ds workers allowed a company truck to roll backward, pi him against

some construction equipment, therefore he was caused harm- P invoked 7th am. Right to trail by jury and D used two peremptories against black jurors so jury was 11 white, and 1 black- P wanted D to give a race neutral reason for his decisions, but the district court denied this on grounds that Batson didn’t apply in

civil cases- P rec’d jury verdict of 90K, but it was reduced to 18K b/c it found contributory negligence- P appealed and said Batson applied to civil trials and the ct. of appeals held that private parties become state actors when they

exercise peremptory challenges and that to limit Batson to criminal cases “would betray Batson’s fundamental principle o Ct. of appeals remanded to trial court to determine if P est. a prima facie case

- court ordered rehearing en banco affirmed judgment of district court, civil cases don’t have to apply Batson b/c private litigants don’t constitute state

action- now S.C. is decidingIssue: - can a private litigant in a civil case use peremptory challenges to exclude jurors on account of their raceRule:- equal protection component of the 5th am.Holding:- No. Judgment reversed and remanded on issue of if a prima facie case was there

o race-based exclusion violates the equal protection rights of the challenged jurorsReasoning/Analysis:- in Powers the court made clear that a prosecutor’s race-based peremptory challenge violates the equal protection rights of those

excluded from jury serviceo relied on well-est. rules of third party standing to hold that a D may raise the excluded jurors equal protection rightso court has not intimated that race is permissible in civil proceedings o civil cases still violate the right of the juror to have equal protection and opportunity to serve on the jury

- however racial disc. Only violates the constitution when it may be attributed to state actiono court must ask if the claimed constitutional deprivation resulted from the ex. Of a right or privilege having its source in

state authority IT DOES HERE – the whole concept of peremptory challenges is given from FRCP

o court must then ask if the private party charged with the deprivation could be described in all fairness as a state actor court then says, well 1) to what extent does the actor rely on governmental assistance and benefits, 2) whether

the actor is performing a traditional governmental function and 3) whether the injury caused is aggravated in a unique way by the incidents of governmental authority

YES, IT WAS STATE ACTIONo racial discrimination w/in a courtroom raises serious questions as to the fairness of the proceedings conducted there and

mars the integrity of the judicial system and prevents the idea of democratic government from becoming a reality- Can an opposing litigant raise the excluded person’s rights on his or her belaf?

o “a litigant may raise a claim on behalf of a third party if the litigant can demonstrate that he or she has suffered a concrete, redressable injury and the he or she has a close relation with the 3rd party, and there exists some hindrance to protect his own interests”

all 3 requirements are satisfied in the civil ase- Can a civil litigant demonstrate a sufficient interest in challenging the exclusion of jurors on account of race?

o In criminal cases it was found that “racial disc. In the selection of jurors casts doubt on the integrity of the judicial process and places the fairness of a criminal proceeding in doubt”

Dissent: O’Connor, Chief Justice, and Scalia- not everything that happens in a courtroom is state action and since a peremptory strike by a private litigant is fundamentally a

matter of private choice and not state action, there is a dissent- neither of the assertions by the court that 1) private parties use peremptory challenges with the “overt, significant participation of

the government or 2) that the use of a peremptory challenge by a private party “involves the performance of a traditional function of the government” is correct

o peremptory is an enclave of private action in a gov’t managed proceedingo whatever reason for private litigants peremptory, its not the gov’ts reason

the gov’t est. requirements for jury service leaving to the private litigant the unfettered discretion to use the strike for any reason

a lawyer when representing a private client, cannot at the same time represent the government- If Dodson stands for anything, it is that the actions of a lawyer in a courtroom do not become those of the government by virtue of

their location, this is true even if those actions are based on raceo Gov’t not responsible for everything that goes on in a courtroom and not for a peremptory challenge by a private litigant

Scalia- this could be a hindrance to minority litigants b/c just as peremptory challenges can stop someone from getting a diverse jury, it

can also stop someone from ASSURING that their jury is racially diverse- decision means that both sides, in all civil jury cases, no matter what their race may lodge racial-challenge objections and after

those objections have been considered and denied, appeal the denials with the consequence, if they are successful of having the judgments against them overturned

Comments and Questions- even when the 7th am. Gauarantees the right to a jury trial, it can be waived, and parties must assert their right to a jury trial within

10 days of the last pleading or its waived- Batson articulated a three-part test to detect race-based uses of peremptory strikes and the test continued to be used today

o 1. prima facie case that the strike of the jury was b/c of raceo 2. burden shifts to the proponent of the challenge to provide a race-neutral reason for exercising the strikeo 3. party opposing strike must prove that the use of the strike was motivated by purposeful disc. – so that the reason given

in 2 was pretext- Purkett v. Elem. The majority held in a per curium opinion that a race-neutral explanation tendered by the proponent of a

peremptory challenge need not be persuasive or even plausibleo All that is required under Batson is a “legitimate reason…not a reason that makes sense, but a reason that does not deny

equal protection”o But then why have Batson at all cuz most lawyers can come up with SOMETHING as a race neutral challenge –

basically they can lie and still have their little racially preferred jury-------------------------------------------------

J.E.B. v. Alabama511 U.S. 127 (1994)

Facts/Procedure:- state filed paternity suit against the D and the original pool had 36 potential jurors, 12 male and 24 female

o after for cause there were 10 males left of remaining 33 jurorso the state used 9 of its 10 peremptory challenges against males, and the D used all but one of its against femaleso jury was ALL women

- D objected saying that gender was like race and the state had impaneled a jury of all women on purpose and that it was disc.o Court rejected the arg. and let the case go to trial

- Jury found D to be father of child and ordered him to pay child pporto Judge denied a post-judgment motion and affirmed that Batson didn’t extend to gender cases

- AL Ct. App Affirmed- S.C. of AL denied cert- U.S. S.C. granted certIssue: - does the equal protection clause forbid intentional discrimination on the basis of gender, just as it prohibits discrimination on the

basis of raceRule:- “discrimination in jury selection, whether based on race or on gender, causes harm to the litigants, the community and the ind.

Jurors who are wrongfully excluded from participation in the judicial processHolding:- Yes. Judgment reversed and remanded to the ct. of civil appeals of AL for further proceedings consistent with opinion

o Gender, like race is an unconstitutional proxy for juror competence and impartiality

Reasoning/Analysis:- at one time women couldn’t serve on jury’s and since Reed v. Reed then can and the court has clearly said that gender is not a

good reason to consider in determining jurors- state tries to say that disc. On grounds of gender is ok, but not against race b/c the gender issues were never as bad as the race

issueso under the equal protection jurisprudence, gender based classifications require an exceedingly persuasive justification to

survive constitutional scrutiny- Question is whether disc. On the basis of jury selection substantially furthers the State’s legitimate interest in achieving a fair and

impartial trialo Basically the state said that men would be unwilling to sympathize with the mother in case, and the women wouldn’to Court won’t accept as a defense to gender-based peremptory challenges “the very sterotype the law condemns”

- when state actors ex. Peremptory challenges in reliance on gender stereotypes they ratify and reinforce prejudicial views of the relative abilities of men and women

Comments and Questions- Hernandez v. NY – S.C. found that peremptory challenges based on ethnic origin were illegal, but upheld challenges cased on

whether the juror could speak English- Number of states have indicated that religion-based peremptory challenges would violate state law- There are arguments that there should be an elimination of peremptory challenges

o Messy administration of the equal protection challenges and the strategic gamesmanship surrounding jury selection would end

o Would reduce the parties abilities to shape the jury and influence the results o Would afford one way to restrict the use of governmentally imposed group-based categories while still achieving the

underlying governmental purpose Send a signal that a practice must end if it plays into or reinforces group stereotyping

FRCPRule 47. Selection of Jurors

a) Examination of Jurors – court or attorneys can conduct exams of jurors, if court does it then the attorneys may ask additional questions or submit questions for the judge to ask

b) Peremptory Challenges – court shall provide the number of peremptory challenges provided by 28 U.S.C. § 1870c) Excuse – the court may for good cause excuse a juror from service during trial or deliberation

Rule 48. Number of Jurors – Participation in Verdict- court shal se a jury of 6-12 members and all jurors shall participant in verdict unless excused under 47(c). - Unless the parties otherwise stipulate, the verdict must be unanimous and not taken from less then a jury of 6

28 U.S.C. §§ 1861 – Declaration of Policy- all litigants in federal courts entitled to trial by jury shall have right to grand and petit juries selected at random from a fair cross

section of the community from district of court- all citizens of US. Will be considered for service on juries in district courts of U.S. and will have an obligation

1862 – Discrimination Prohibited- citizens can’t be excluded from service as juror in U.s. district courts or in the Court of International Trade b/c of race, color,

religion, sex, national origin, or economic status

1870 – Challenges- in civil cases each party is entitled to 3 peremptory challenges- Several Ds or Ps can be considered a single party for challenges, but the court can allow additional peremptory challenges and

permit them to be ex separately or jointly- All challenges for cause or favor shall be determined by court

Assignment 21: Glannon Reading pp. 409-427

Course packet 67-68

Reid v. Sand Pedro, Los Angeles & Salt Lake RR Company

39 Utah 617 (S.C. UT 1911)

Facts:- P had a cow which got on tracks and hit by Ds train- There was break in fence as well as open gate and don’t know how cow got on track- P was in immediate vicinity of the gate, and a mile down from the break in the fenceProcedure:- D asked for directed verdict which was denied- The trial results in verdict for P and D appealedIssue: - should the Ds motion for directed verdict have been granted?Rule:- “whenever such a RR co. shall provide gates for private crossings for the convenience of the owner of the lands through which the

RR passes, such owner shall keep such gates closed at all times when not in actual use and if such owner fail to keep such gates closed, and in consequence thereof his animal strays upon such RR and is killed or injured such owner shall not be entitled to recover damages therefore

Holding:- YES. Judgment reversed

o Verdict rendered on the first cause of action is not supported by the evidenceReasoning/Analysis:- P has the burden to est. liability of the D by a preponderance of the evidence, and didn’t

FRCPRule 50. Judgment as a Matter of Law in Jury Trials; Alternative Motion for New Trial; conditional Rulings

a) judgment as a Matter of Law1. if during jury trial a party has been fully hear on an issue and there is no legally sufficient evidence for reasonable jury to

fid for that party, the court may grant judgment as a Matter of Law against that party w/ respect to a claim or defense that can’t be maintained or defeated w/o finding favorable finding on that issue

2. Motions for judgment as a matter of law can be made at any time before case is submitted to the jury, and the motion should specify the judgment sought and the law and facts the motion is based on to show they are entitled to judgment

b) Renewing Motion for Judgment After Trial; Alternative Motion for New Trial – o if the court doesn’t grand 50(a), then its ct. is considered to have submitted the case to jury subject to courts later

deciding on the issues presented from 50(a), and after the verdict a party can renew their 50(a) request no later then 10 days after verdict

o AND they can can request a new trial or join a motion for a new trial under Rule 59o In ruling on the renewed motion, the court may…

1. if a verdict was returned:A. allow the judgment to standB. order a new trial, orC. direct entry of judgment as a matter of law; or

2. if no verdict was returnedA. order a new trial, orB. direct entry of judgment as a matter of law

c) Granting Renewed Motion for Judgment as a Matter of Law; Conditional Rulings; New Trial Motion1) if a JNOV is granted the court will also rule on new trial, by determining whether it should be granted if the judgment is

thereafter vacated or reversed, and shall specify grounds for granting or denying the motion for trialo if JNOV is conditionally granted, the order doesn’t affect the finality of the judgmento if motion for new trial is conditionally granted and the JUDGMENT is reversed on appeal, the new trial shall proceed

unless appellate court orders otherwiseo if motion for new trial is conditionally denied, the appellee on appeal my assert error in that denial and if Judgment is

reversed on appeal, subsequent proceedings shall be in accordance with order of appellate court2) any motion for a new trial under Rule 59by a party against whom judgment is rendered shall be filed no later then 10 days

after judgmentd) Same: Denial of Motion for Judgment as a Matter of Law

- if JNOV is denied, party prevailing on the motion, as appellee, can assert grounds for new trial if the appellate court says that the trial court erred in denying JNOV

- if appellate court reverses the judgment, nothing in this rule stops it from determining that the appellee is entitled to a new trial, or from directing the trial court to determine if a new trial should be granted

Rule 52: Findings by the Court; Judgment on Partial Findingsc) Judgment on Partial Findings

- if during trial w/o jury a party has been fully heard on an issue and the ct. finds against the party on that issue, the ct. can enter D.V. against that party with respect to a claim or defenses that can’t be maintained w/o proving the issue in question

- OR the court may decline to give DV until after close of evidence with JNOV- Such a judgment shall be supported by findings of fact and conclusions of law as required by 52(a)

Assignment 22:Glannon Reading pp. 427-48

Course Packet pp. 69-71

Lind v. Schenley Industries Inc.278 F.2d 79 (3rd Cir. 1960)

Facts/procedure:- P sued employer claiming a breach of an oral promise to increase salary- D denied making such promises- The jury determined that the D did offer Lind a 1% commission on the gross sales of the men under him- Judgment was nullified by the court’s decision to enter a verdict for the D under Rule 50(b)

o Also granted new trial in event that the judgment in favor of the D was reversed- P appealed both rulings- Ct. of App.

o Rejected JNOV ruling o New Trial

The verdict of the trial was NOT contrary to the law – despite district court’s ruling There was NOT an error in evidence, despite district court’s ruling Considering if the weight of the evidence is a good reason to have new trial

Issue: - Should the trial judges order of granting a new trial be upheld on the basis of “verdict was against the weight of the evidence?”Rule:

Holding:- Judgment Reversed and the case will be remanded with the direction to the court below to reinstate the verdict and judgment in

favor of PReasoning/Analysis:- granting or refusing of a new trial is a matter resting within the discretion of the trial court

o a trial judge should view the verdict in the overall setting of the trial, consider the character of the evidence and the complexity or simplicity of the legal principles which the jury was bound to apply to the facts, and abstain from interfering unless its clear that the jury has reached a seriously erroneous result

o some authority supporting an almost unlimited discretion in the trial judge in granting or denying motions for trial- there is NO CONSENSUS of opinion as the exact standards to be used by a trial court in granting a new trial and that the criteria

to be employed by an appellate tribunal charged with reviewing the trial judge’s decision in this respect are equally indefiniteo where no undesirable or pernicious element has occurred or been introduced into the trial and the trial judge still grants a

new trial on the ground that the verdict was against the weight of the evidence, the trial judge in negating the jury’s verdict has substituted his judgment for that of the jury

o it then becomes the duty of the appellate court to ex. A closer degree of scrutiny and supervision than is the case where a new trial is granted b/c of some undesirable or pernicious influence obtruding into the trial

- this case had subject matter of the litigation simply and easily comprehended by any intelligent laymano P presented a convincing case which the jury believed the testimonyo The ct. substituted its judgment for the jury and thereby abused its legal discretion

Dissent: Justice Hastie and Kalodner- agree the order for JNOV should be set aside- Majority make a serious mistake when they take the extraordinary step of reversing the alternative order of the trial judge,

granting a new trial because he considered the verdict against the weight of the evidence- Trial judges evaluate all significant evidence, deciding in the ex. Of his own best judgment whether the jury has so disregarded

the clear weight of credible evidence that a new trial is necessary to prevent injustice- He may avoid what in his professionally trained and experienced judgment is an unjust verdict by vacating it and causing the

matter to be tried again by a second jury- Only function of a reviewing court, once the trial court has ordered a new trial, is to see whether there can have been any basis in

reason for the trial judge’s conclusion as to the weight of the evidence and the injustice of the verdict

- Trial court may have reasoned that the amount promised was so abnormally large and the Ps concern a bout nonpayment so small as to make it incredible that the promise was made

- In such circumstances it was neither arbitrary nor an abuse of discretion for the trial judge to grant a new trial

FRCPRule 49. Special Verdicts and Interrogatories

a) Special Verdictso court can require a jury to return a special verdict in form of special written finding for each issue of facto court can submit written questions, or something else, in order to obtain the written findingso court will give jury instructions so they can do the above written findingso if the court omits any issue of fact raised by the pleadings or evidence, the court waives the right to have that fact

decided by jury, unless a party, in front of the jury, demands that the issue be submitted to the juryo if an issue is omitted w/o such a demand the court may make a finding, or if the court doesn’t do so, it will be deemed to

have made a finding in accord with the judgment on the special verdictb) General Verdict Accompanies by Answer to Interrogatories

o ct. may submit to the jury, w/ the appropriate forms for a general verdict, written interrogatories upon one or more issues of fact the decision of which is necessary to a verdict

o court will give explanation/instruction as necessary to enable the jury to make answers to the interrogatories and to render a general verdict

o court shall direct the jury to make written answers and to render a general verdicto when the verdict and the answers are harmonious, appropriate judgment on verdict and answers shall be entered pursuant

to Rule 58o when the answers are consistent with each other, but are inconsistent with general verdict, judgment may be entered

pursuant to Rule 58 in accordance with the answers, JNOV, or court may return the jury for further consideration of its answers, or may order a new trial

o when answers are inconsistent w/ each other and one or more is inconsistent with the general verdict, judgment shall not be entered but the court shall return the jury for further consideration of its answers and verdict or shall order a new trial

Rule 51. Instructions to Jury; Objections; Preserving a Claim of Errora) Requests

1. party may at close of evidence or earlier reasonable time that the court directs, file and furnish to other party written requests that the court instruct the jury on the law as in the requests

2. After close of evidence, a party may:A. File requests for instructions on issues that could not have been anticipated at an earlier time for requests set under

51(a)(1), andB. With court’s permission file untimely requests for instructions on any issue

b) Instructions. The Court1. must inform parties of its proposed instructions and action on requests before instructing jury and before final jury args.2. must give parties an opp. To object on record and out of the jury’s hearing to the proposed instructions and actions 3. may instruct the jury at any time after trial begins and before the jury is discharged

c) Objections1. a party who objects to instruction or failure to give instruction, must do so on record stating distinctly what they are

objecting to and the grounds2. An objection is timely if:

A. a party that has been informed of instruction/action and objects before final jury args and objects at the opportunity for objection required by Rule 51(b)(2)

B. a party has NOT been informed of the instruction or action on request before the time for objection provided under Rule 51(b)(2) objects promptly after learning that the instruction or request will be or has been given or refused

d) Assigning Error: Plain Error.1. A Party may assign error:

A. an error in an instruction actually given if that party made a proper obj. under rule 51(c), orB. a failure to give an instruction if that party made a proper request under Rule 51(1) and unless the court made a

definitive ruling on the record rejecting the request – also made a proper obj. under Rule 51©2. court may consider a plain error in the instructions affecting substantial rights that has not been preserved as required by

51(c)(1)(A)or(B)

Rule 59. New Trials; Amendment of Judgmentsa) Grounds. – a new trial may be granted to all or any of parties on all or part of issues

1. in action which there was jury trial, for any of the reasons for which new trials have been granted in actions at law in U.S. courts

2. in action w/o jury trial for any reasons for rehearings granted in suits in equity in U.S. courts

on motion for a new trial in action tried w/o jury, court may open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new findings and conclusions, and direct the entry of a new judgment

b) Time for Motion – any motion for new trial shall be filed no later than 1 days after entry of judgmentc) Time for Serving Affidavits – when motion for new trial based on affidavits they should be filed with the motion.

o opposing party has 10 days after service to file opposing affidavits, but that period can be extended for up to 20 days by court for good cause

o court can reply to affidavitsd) On court’s initiative; notice; specifying grounds.

o no later than 10 days after entry of judgment the court can order a new trial for any reason that would justify granting on an a party’s motion

o after giving parties notice and an opportunity to be heard, court may grant a timely motion for a new trial for a reason not stated in motion

o when granting a new trial on own initiative, the court shall specify the grounds in its ordere) Motion to alter or Amend Judgment - a motion to alter or amend shall be filed no later than 10 days after entry of the

judgment

Assignment 23

Subrin pp. 494-96

Appeals- value of a favorable trial verdict is materially diminished if it cannot survive appellate review

o attorneys do not try their case as if the first trial never happened, but rather present alleged errors of the trial judge for the appellate court of review

o appellate court serves the purpose of supervising the trial judges’ decisions and establishing uniformity of the law w/in its jurisdiction

- appellate court looks beyond the rights of the parties in the specific cases before themo voice of authority on the law in their jurisdiction and try and create a uniform body of law for predicting the outcome of

future caseso right of appeal is statutory not constitutionalo 13 courts of appeal – 11 numbered circuits, the DC circuit, and the Federal Circuit

- appellate courts will hear only alleged errors that are revealed in the trial record, and don’t review fact findingso the party must have made a timely objection to the mistakeo the error must be considered significant to the outcome of the trial

- federal courts and most state courts require finality in the trial court as a basis for appellate jurisdictiono known as the final judgment rule – ensures that the proceedings below are completed before the review process beginso appeal usually requires notice within 30 days after final judgment renderedo main principle for this rule is the conservation of judicial resourceso not all requests for immediate appeal are denied

immediate review can be important in providing guidance to the trial court and in preventing hardship exceptions to rule include the collateral order doctrine, interlocutory appeals, and writs of mandamus and

prohibition- collateral order doctrine – exempts small number of cases where there is an order that is an offshoot of the principle litigation and

where appeal does not require delving into the merits of the case- interlocutory decision is made while the case is pending in the trial court, but prior to the final determination of the merits

o may be taken from interlocutory orders with respect to injunctions, receiverships and the rights and abilities of parties to admiralty cases

o court can actually say an immediate appeal would be helpful- writs of mandamus and prohibition seek an order from the appellate court to order a requirement or a prohibition of a certain

action by a public officialo various conditions for which court will enter writ, including if the party seeking the writ has no other adequate means to

attain the desired relief, and if the party is able to establish that the need for the issuance is “clear and indisputable”- courts of appeals, usually panel of 3 judges reach decision by a majority vote

o panel can decide error, but that won’t necessarily be a ground for reversalo in reviewing district courts finding of fact, the appellate court usually defers to the trial judgeo appellate court will only set aside findings of fact that are “clearly” erroneouso trial judge misunderstood the law or made finding without evidentiary support

- appellate court will reverse only if it thinks the trial court more likely than not erred in its decision

o with cases of mixed fact and law the standard is that applied to questions of pure law, although courts have determined which standard to use in certain cases

- Clearly erroneous standard - ??????????- When a trial judge makes a discretionary ruling, the standard for review is “abuse of discretion”

o Only overturned if its clearly wrong- After appellate court makes decision, aggrieved party can seek appeal at next level of review from S.C. – almost always done

through the discretionary writ of certiorario Whether its granted depends on conflicts b/w circuits, general importance of the legal questions involved, and public

importance of the case- in state court it goes – trial court – state appellate review – state’s highest court – then S.C.- only small percentage of cases in which review is sought from S.C. are granted cert

Course Packet 72-74

Aetna Casualty & Surety Co. v. Cunningham224 F.2d 478 (5th Circuit)

Facts:- p sued D for 32K and interest thereon b/c of Ds failure to make good on a building contract- P was the surety on the performance bond- Complaint presented two separate claims of the right to recover the same amount

o P said that D lied and that’s how got the P as suretyo P said that D agreed to indemnify P for all losses sustained by it in consequence of its surety

Procedure:- D conceded second claim, so only first one was litigated- District court found D liable under the indemnity claim, but not on the first issue of fraud- So court gave P the 32K- P appeals to get an outcome of fraudIssue: - can a P appeal a favorable ruling when they’ve already gotten all the monetary damages they are going to getRule:- FRCP Rule 8e2 – a party may also state as many separate claims as he has regardless of consistencyHolding:- Yes.

o If Aetna was denied judgment of the quality to which it laid claim, it is a party aggrieved on appealo When the denial of any one claim results in the P not getting the relief to which it claims to be entitled, whether in the

amount or the quality of judgment, it has a right to be heard on appealReasoning/Analysis:- amount is not the sole measure of relief for which a party may be entitled- judgment may have different qualities and legal consequences dependent on the claim it is based- can’t wait til bankruptcy b/c then the evidence may be lost- so long as the judgment remains unpaid, the question can’t be said to be moot- two claims are separate and distinct, one on fraud, and one on a separate contract of indemnity

Carson Products Co. v. Califano594 F.2d 453 (5th Cir. 1979)Facts:- P appeals to have ingredient in one of its cosmetics products exempted from federal disclosure requirements as a trade secret- P raises due process challenge to procedures used by FDA to determine trade secret status- P produces depilatory – hair removal and FDA says they must put all ingredients on label in descending order of predominance- Regulations don’t required trade secrets to be divulged- P wanted an ingredient to be deemed a trade secret and they refused b/c it was shown that the ingredient was used in other

products of this typeProcedure:- P filed suit in district court for S.D. of GA challenging the FDA determination- District court found against the P saying that FDAs decision was based on substantial evidence- P appeals challenging the district court’s judgment on the merits and raises a due process clause attack on the procedures of the

FDAIssue: - Was the Ps request for a trade mark status for its ingredients sufficient violated by the FDAs lack of due process?- Can P invoke new law/info/standards (Zotos) on appeal?

Rule:- “ct. of app. has discretion to hear an issue not raised before the district court in exceptional circumstances where injustice might

otherwise result”.Holding:- No. judgment affirmed. Given due process

o FDAs action denying trade secret status for the Carson ingredient was based on substantial evidence and was not arbitrary or capricious

- Yes, it would be manifestly unfair not to allow Carson an opportunity to invoke Zotos on appealReasoning/Analysis:- P relies on Zotos case which happened recent to the case

o In Zotos the FDAs procedures for handling trade secret claims were held to fall below the min. constitutional requirements of the due process clause

o It was decided after the district court entered decisions, so now considering in case in light of new information- after Zotos, the FDA modified its business practices to bring them in compliance with principles in that decision- agency began implementation immediately and reopened any cases which were denied by the FDA, appealed to a district court,

and where no action taken by court- so this case not included b/c already had a decision

Massachusetts Mutual Life Insurance Co. v. Ludwig (P)426 U.S. 479 (1976)

Facts:- P had a life insurance policy which allowed double indemnity if death was sustained while passenger on public transportation- P was killed by train while crossing track- D paid ordinary benefits, and Ps sued- Courts have to figure out whose law to use

o Policy issued in Michigano P died in IL

Procedure:- IL district court decided that the site of contract would be the appropriate laws, so used Michigan law and that the insurere was

liable only for ordinary benefits- The administrator appealed and argued that the ruling was wrong- Ct. of Appeals reversed but didn’t say which states law applied- Ct. app. said the D was precluded from arguing on appeal the applicability of IL substantive law bc it had not cross-appealed from

the District Court’s ruling that Michigan law appliedIssue: - Can the insurer argue that IL law would also have ordinary benefits, if it didn’t cross appeal?Rule:- “the appellee may, without taking cross appeal, urge in support of a decree any matter appearing in the record, although his

argument may involve an attack upon the reasoning of the lower court or an insistence upon matter overlooked or ignored by it”Holding:- Yes. Ct. of app. decision at odds with the rule of U.s. v. American Ry. Exp. Co.

o Ct. of appeals order vacated and case remanded for further proceedings in conformity with this opinionReasoning/Analysis:- an appellee may not attack the decree with a view either to enlarge his own rights or lessen the rights of his adversary- arg. of the D that the Ct. of App. should have used IL and not Michigan law, was no more than “an attack upon the reasoning of

the lower court” and didn’t require cross appeal

Assignment 24Course Packet 75-80

Liberty Mutual Insurance Co. v. Wetzel et. al v. S.C. of the U.C.424 U.S. 737 (1976)

Facts:

Procedure:

Issue:

Rule:

Holding:

Reasoning/Analysis:

Facts:

Procedure:

Issue:

Rule:

Holding:

Reasoning/Analysis:

28 U.S.C.§1292. Interlocutory decisions

a) except as provided in subsections c) and d) of this section, the courts of appeals have jurisdiction of appeals from:1. Interlocutory orders of U.S. district courts, district of canal zone, court of Guam, Virgin islands, or the judges thereof,

granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions, except where a direct review may be had in the S.C.

2. interlocutory orders appointing receivers, or refusing orders to wind up receiverships or to take steps to accomplish the purposes thereof, such as directing sales or other disposals of property

3. interlocutory decrees of such district courts or the judges thereof determining the rights and liabilities of the parties to admiralty cases in which appeals from final decrees of property

b) when district judge in making in a civil action an order not otherwise appealable under this section, is of the opinion that such order involves a controlling question of law as to which there is lots of differing opinions and where an appeal would materially advance the ultimate termination of the litigation, he shall so state in writing such ordero ct. of appeals would have jurisdiction of an appeal of such action and may in its discretion, permit an appeal to be taken

from such order if application is made to it within 10 days of the entry of the ordero provided however, that application for an appeal hereunder shall not stay proceedings tin the district court unless the

district judge or the court of appeals or a judge thereof shall so order

Assignment 25 Subrin pp. 521-529

Alternative Dispute Resolution- a broader repertoire of options should place litigation within a larger toolbox among a variety of other problem-solving and

dispute-resolving techniques- two most basic alternatives to litigation are

o lumping it – in which an injured or unhappy party decides to live with the harm or dissatisfaction w/o pursuing a complaint or seeking redress

o negotiation - used by dissatisfied or harmed party to pursue an informal accommodation or settlement by directly discussing it with the other party

increasingly parties and lawyers turn to third parties to help resolve their disputes because they lack trust, experience, or mores that would permit them to reach a satisfactory result without help

- Alternative Dispute Resolution (ADR) is a general term referring to alternatives to the formal adversarial process that offer more guidance and support than simple negotiation between the parties or their representatives

- Two basic ADR alternativeso Mediation – a neutral actor facilitates an agreement that is negotiated between the disputantso Arbitration – the disputing parties agree upon the selection of a neutral and skilled decision-maker who is entrusted with

making a final, binding, and nonappealable judgment based on presentations by the parties- many courts have folded mediation, arbitration, settlement conferences, and other alternative dispute resolution programs within

their buildings and programs- the conjunctionof ADR and courts has produced institutional innovations, such as the summary jury trial

o a court initiated and supervised voluntary and nonbinding settlement process intended to offer each paty a chance to present their factrual case before a jury

o the jury then reports its reaction to the conflicting evidence and thereby offeres the settlement process outside information about the weaknesses in each party’s case

- another innovation includes the case-screening process – designed to elicit facts and details surrounding cases in order to match the parties with both a particular dispute process and a specific neutral third-party to assist in the resolution

- once incorporated into the judicial process, however, ADR may decline in quality or even depart from its own preconditions- individuals can choose ADR once the dispute arises, or the court can recommend ADR or make ADR a precondition for filing of

the complaint

1. What Advocates Say about ADR- it can build trust between the parties- require less time and expense, generate flexibility, and allow people to deal with the emotional s well as financial features of

disputes- permits creative solutions such as renegotiating an entire contract rather than pursuing a breach of contract and antitrust claim- promotes party control, self-determination and satisfaction even across cultural differences – while lowering court caeloads and

expenses

2. What critics say about ADR- does not guard against the imbalances in power b/w disputing parties and allows more powerful parties to take advantage of less

powerful parties- veils the public implications of private settlements and derails the collective action that litigation can help mobilize- does not save costs or time when the parties continue to retain separate legal representation and when the process is prolonged- pressure parties into accepting settlements that reflect the agendas of the mediator, or the party with more political or economic

power

- args. In favor of ADR have contributed to a massive increase during the 80s and 90s in the use of mediation, arbitration, and other variations both by private initiative and through court-connected programs

Comments and QuestionsMandatory Participation- the society of professionals in dispute resolution have recommended mandatory participation in non-binding dispute resolution

processes but only where such compulsory process is more likely to serve the interests of the parties, protection of historically disadvantaged groups, the needs of the courts to function effectively, and public trust in the system

- congress has indicated tha t party participation in nonbinding mediation could be required by local judicial ruleJudicial enforcement of contracts mandating ADR- S.C. has ruled that securities customers must use arbitration rather than bringing fraud claims to court b/c they signed a customer

agreement accepting arbitrationADR and the public sector- mediation arbitration are now commonly used in public sector disputes, including the enforcement of the Clean Air Act, oil spill

clean-up, conflicts over zoning and land use, and employment discrimination claimsJudicial review of arbitration- federal law allows judicial review of arbitration decisions if the award “was procured by corruption, fraud, or undue means,” or

where the arbitrators misbehaved in ways that prejudiced the rights of a party or that exceeded the arbitrator’ power- in this context, judicial revision of arbitration awards has been limited and rare, and courts have declined to ask whether an

arbitration award was correct or even reasonable

Course Packet pp. 81-83

Ferguson v. Writers Guild of America, West, Inc.226 Cal. App. 3d (1991)

Facts:- P wrote screenplay for movie and the credits included others, which he said was wrong- The P was bound by contact to enter into arbitration through the Writer’s Guild which would appoint 3 independent members to

review the case- They allowed for the credits to be screenplay by Ferguson and Skaaren, and Story by Murphy and Wachs- P entered this action for a writ of mandate- P contends that the Writers Guild’s credit determination process was infected by procedural improprieties and irregularities and

asks the court to order the Writer’s Guild to conduct the credit arbitration anewProcedure:- superior court denied petitions and entered judgment Nov. 20, 1987

- it denied Ps motion for reconsideration- appeal followed-Issue: - Should the court issue a peremptory writ of mandate requiring the writers guild to set aside its credit determination and make a

new determination giving Ferguson sole screenplay credit and sole story credit?Rule:- under the Writers Guild’s position that under schedule A and the credits manual, disputes over writing credits for feature-length

photo-lays are nonjusticiableHolding:- Judgment affirmed.

o P has not preserved for judicial review the seven contentions listed on pages 1288 b/c he has not demonstrated that he presented them to the writers guild’s policy review board

o Judicial review of the writers guild’s credits determination is restricted to considering whether the party challenging the determination has demonstrated a material and prejudicial departure from the procedures specified in the credits manual

Reasoning/Analysis:- the writer’s guild has spelled out policies for reviewing cases, which were followed in this instance- it also has a policy review board, consisting of three members of the Writers Guild’s credits committee- they have the authority to direct the arbitration committee to reconsider the case or to order a fresh arbitration by a new

triumvirate- a decision of the policy review board approving a credit determination is final- this is all spelled out in contract- prof. writers who constitute the writers guild have decided that the credit determination process can be handled more skillfully by

the Writers Guild arbitration committees than by courts- the scope of judicial review in a particular case, is limited to a determination whether there has been a material breach of the

terms of the credits manual, which binds the writers guild as well as its members- court accords considerable deference to the decision of the policy review board, because of its member’s expertise in the

interpretation and application of schedule A and the credits manual

Facts:

Procedure:

Issue:

Rule:

Holding:

Reasoning/Analysis:

Dissent: