Civil Procedures Outline

Jurisdiction over the Parties or Their Property (JOP)1. Three Kinds of JOP

a. In personam – gives the court power to issue a judgment against someone personally. All of a person’s assets may be seized to satisfy a judgment

b. In rem – jurisdiction over a thing, gives a court power to adjudicate a claim make about a piece of property or about a status

c. Quasi in rem – action begun by attaching property owned by D, or debt owed to D w/in forum state. A pretext for the court to decide the case w/out having In personam jurisdiction. Judgment affects only the property seized

2. Long arm statute – most states have statutes which permits the court of a state to obtain jurisdiction over persons not physically present w/in the state at the time of service

a. Typically provide for substitute means of service, since in-state personal service is not possible

3. Jurisdiction over Individualsa. Presence – jurisdiction may be exercised over an individual by virtue of his presence w/in

the forum state. Game of Gotchai. Pennoyer v. Neff - Service by publication against non-residents is insufficient to

confer jxn. States have jxn over persons/property in the state. Publication may be sufficient for proceedings in rem (and quasi in rem with proper attachement).

ii. Burnham - In CA on business. Ex-wife lived in CA. He was served w/ divorce papers while in CA on this trip.

1. The 14th Amendment doesn’t deny a state jxn over a person personally served while temporarily in a state, in a suit unrelated to his activities in the state. If served while physically present in state, jxn is proper.

b. Domicile – jurisdiction may be exercised over a person who is domiciled w/in forum state, even if the person is temporarily out of state

i. Current dwelling placeii. Intent to remain for an indefinite period

c. Residence – some states allow jurisdiction allowed on residence even if absent. A person may have several residences simultaneously

d. Consent – a person may consent to jurisdictione. Non-resident motorist – most states have statutes allowing jurisdiction over non-resident

motorists who have been involved in accidents in a statei. Most of these statutes provide for in-state service of process on a designated state

official and for registered mail service on the out of state Dii. Hess v. Pawloski - Hess, from PA, injured Pawloski in a car accident in Mass.

1. MA statute appointing registrar of motor vehicles as non-resident’s agent for service of process does not violate due process. D must still receive notice. D received benefit of MA services, so jxn proper. Implied consent

f. In-state tortiousness – statutes allowing jurisdiction over persons committing tortious acts w/in state

i. Some have been interpreted to include acts done outside a state which product tortious consequences inside a state. (products liability)

ii. Gray v. American Radiator - Gray alleged that Titan, an Ohio corp., sold a shoddy valve to American Radiator to be built into a water heater. The water heater exploded, injuring an Illinois resident. Titan did no business in Illinois.

1. If the act/transaction has a substantial connection to the jxn, jop proper. Did D invoked the benefits/protections of the law of the state?

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g. Owners of in state propertyh. Conducting business w/in forum statei. Domestic Relations

i. Kulko- A father who sends his daughter to live with the mother in CA is not purposefully availing himself.

4. Jurisdiction over Corporationsa. International Shoe

i. Forum state may exercise JOP over corporation only if the corp. has minimum contacts w/ forum state “such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice”

ii. Look at quality, nature of activity. “systematic and continuous.”b. Internet Websites

i. Passive v. Active sitesii. Pebble Beach v. Caddy (p. 150) - Caddy operated Pebble Beach bed and

breakfast in England. Pebble Beach sued Caddy in CA. Caddy’s website was passive, not active (or interactive).

1. D must purposefully avail or purposefully direct activities toward forum. Availment is action taking place in the forum that invokes the benefits and protections of the laws in the forum. Purposeful direction requires more than foreseeable effect.

c. Claims unrelated to in-state activities – where the cause of action does not arise from the company’s in-state activities, greater contacts between D and forum state are required. The in-state activities must be “systematic and continuous”

i. Helicopteros - Helicopteros purchased helicopters, received training, etc. in TX. A crash occurred in Peru, killing some Texans. Suit brought in TX.

1. When a D’s contacts with the state do not relate to the transaction forming the basis of the action, the D must have systematic and continuous contacts. In this case, mere purchase did not constitute systematic and continuous contacts.

2. Specific jxn- D’s contacts relate to transaction, 3. General jxn – systematic and continuous contacts.

d. Products liabilityi. There mere fact that a product manufactured or sold by D outside the forum state

finds its way into the forum state and causes injury there is not enough to subject D to JOP there. D can be sued in the forum state only if it made some effort to market in the forum state

1. World-Wide Volkswagen – fiery car crash in OKa. D must “purposefully avail” himself of the jxn. In this case, the

foreseeability that a car purchased in NY would be driven in OK is not sufficient to constitute minimum contacts.

b. Reasonably anticipate being haled into court therec. Considerations

i. Burden on the defendantii. Forum State's interest in adjudicating the dispute

iii. Plaintiff's interest in obtaining convenient and effective relief

iv. Interstate judicial system's interest in obtaining the most efficient resolution

v. Shared interest in furthering fundamental substantive social policies

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ii. Knowledge of In-state sales – but if the out-of-state manufacturer makes or sells a product that it knows will be eventually sold in the forum state, this fact by itself is probably enough to establish minimum contacts.

1. Asahi - Facts: Asahi (Japan) makes tire valves, sells to Cheng Shin (Taiwan), Cheng Shin sells motorcycles. Zurcher was hurt on the bike, sued Cheng in CA, Cheng sought indemnity from Asahi

a. Minimum contacts sufficient to sustain jxn are not satisfied by simply placing a product in the stream of commerce couple with an awareness that product would reach the forum state. There must be purposeful availment.

2. Goodyear supp p.532 – France bus wrecka. General jurisdiction - when their affiliations with the State are so

"continuous and systematic" as to render them essentially at home in the forum State

b. Specific jurisdiction - depends on an "affiliation between the forum and the underlying controversy, activity or an occurrence that takes place in the forum State and is therefore subject to the State's regulation

c. Rule - Courts cannot assert jurisdiction over foreign subsidiaries with sporadic sales in the forum State in cases not related to the sales in the forum State.

3. J. McIntyre Machinery v. Nicastro (p. 550 supp) - Nicastro, of NJ, injured by machine made by McIntyre (of UK). Company’s products sold through an independent co. McI had attended some conferences/trade shows.

a. It is not enough that D might have predicted that goods will reach forum state. Requires consent to jxn, presence in state when served, citizenship/domicile, or purposeful availment.

b. Dissent, Ginsburg - one sale + an attempt to reach all of the American market is sufficient.

e. Suits based on a contractual relationship – i. Burger King Corp. v. Rudzewicz – D runs a fast food franchise in MI from P,

which has its headquarters in FL. 1. Designation of law clause – major factor, indicates purposeful availment2. Reasonable anticipation – could the D have reasonably anticipated being

required to litigate in the forum state?3. A party who established purposeful minimum contacts with a state is

subject to that state’s exercise of personal jxn5. Jurisdiction over Things

a. Quasi In Remi. Shaffer v. Heitner – Quasi-in-rem must meet the same standards as in personam

jurisdiction (International Shoe)1. Basically abolishes quasi-in-rem jxn, narrow exception is where

minimum contacts are present, but the state long-arm for JOP is too narrow to reach D, yet a state attachment statute applies Harris v. Balk

Notice 1. Court may not proceed unless D has received adequate notice2. Reasonableness Test

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a. In order for the defendant to have received adequate notice the procedures used to alert him must have been reasonably likely to inform him, even if they actually failed to do so.

i. Mullane v. Central Hanover Bank & Trust Co. p. 1991. notice must be “reasonably calculated to succeed”2. Cannot be less likely to come to their attention than any other method

that might bring it to their attention3. Substitute Service

a. Personal service or In hand service – always sufficient serviceb. Substitute service – service other than personal service

i. Leave at dwelling – papers may be left at D’s dwelling, usually with an adult who is reasonably likely to deliver them [FRCP 4(e)(2)]

ii. Mail – Some states and the federal system allow by first class mail (usually by waiver) [FRCP 4(e)(1)]

iii. Agent notice FRCP 4(e)(2)1. Nat'l Equipment Rental, Ltd. v. Szukhent – An agent's prompt

acceptance and transmittal to the respondents of the summons and complaint is sufficient to validate the agency

4. Out of state Servicea. In a State suit forum must have long-arm statuteb. Mail – registered or certified mailc. Public Official – State official + maild. Newspaper Publication – May only be used where D truly cannot be founde. State Ex Rel. Sivnksty v. Duffield

i. Nonresidents of a county or state charged with a crime are immune from civil process

ii. If you are in the county or state voluntarily at the time you are arrested, you are not immune from service

5. Opportunity to be hearda. Before property can be taken or any significant interference with his property rights, D

must have opportunity to defend himselfb. Pre-judgment remedies

i. Protects P from D’s hiding or squandering his assetsc. Fuentes v. Shevin p.240 – Goods seized before a written summons, repo the stove

i. Even a temporary deprivation of property is a deprivation under the 14th amendment, and due process is required.

1. If the right to notice and a hearing is to serve its full purpose, it must be granted at a time when the deprivation can still be prevented.

2. Must have notice before seizure of goods3. Exceptions - secure a gov't or public interest, need for prompt action,

strict control p.2464. Can you waive right to prior notice? Probably. For a waiver of const.

rights in any context must, at the very least, be cleard. Three part test Connecticut v. Doehr p.254

i. Degree of harm to D’s interest from the pre-judgment remedyii. The risk that the deprivation of D’s property right will be erroneous (especially if

the state could have used additional procedural safeguards against this but did not)

iii. The strength of the interest of the party seeking the prejudgment remedy

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Jurisdiction over the Subject Matter of the Action – (SMJ) see US Constitution Art. 3, 28 USC §§ 1251,1331-1346State Court SMJ

1. Lacks v. Lacks (p.267) - D contends that because P is not a resident of NY according to statute, the court lacked SMJ. Divorce case.

a. A final judgment is not void for lack of SMJ if the defect alleged concerns a judicial error as to the existence of a necessary element of the cause of action.

Federal Courts2. Diversity Jurisdiction – the Const. gives fed courts jurisdiction over “controversies between the

citizens of different states”a. Party’s citizenship is determined from the date of the commencement of the action

i. Later change doesn’t change diversity (if the parties later become citizens of same state, diversity intact)

b. Domicile – controls for citizenship, not residence. True fixed permanent home.i. Resident alien – citizen of state in which he is domiciled

ii. Presence of foreigner – doesn’t destroy diversityiii. Mas v. Perry (p. 278) - Mere residence in a state does not establish domicile for

purposes of diversity jxn. Domicile-1 physical presence, 2 intent to remain, elements must concur.

c. Complete diversity – required, no P is a citizen of the same state of any Di. Court looks beyond the pleadings to determine diversity

d. Corporations – deemed a citizen of any state where it is incorporated and the state where it has its principal place of business.

i. Nerve center – corporate headquarters, home office1. The Hertz Corp v. Friend (p 588 supp) - Citizenship for a corporation

is its principal place of business (the “nerve center”) (and where incorporated). Why nerve center test is best: supported by statute language, simplicity of administration, legislative history.

ii. Bulk of activity – main production or service activities3. Federal Questions

a. § 1331 – fed courts have jurisdiction over “all civil action arising under the Const., laws, or treaties of the U.S.

i. Fed Law is source of P’s claimii. Merrel Dow

b. Anticipation of defense – Fed Q must be integral to P’s cause of action. It does not suffice for Fed Q jurisdiction that P anticipated a defense based on a federal statute, or even that D’s answer does raise a fed Q. Fed Q must be part of well pleaded complaint

i. Louisville & Nashville R. Co. v. Mottley - Alleging an anticipated constitutional defense in the complaint does not give a federal court jxn if there is no diversity. 28 USC 1331 case must “arise under” constitution, laws, or treaties of US.

c. Merrell Dow Pharmaceuticals v. Thompson p. 309 - Federal question jurisdiction would exist only if the plaintiffs' right to relief depended necessarily on a substantial question of federal law.

i. Federal question jurisdiction is present if 1. A substantial, disputed question of federal law is a necessary element of

one of the well-pleaded state claims2. Federal forum is warranted to ensure uniform interpretation of the federal

statute3. Special circumstances relating to the extraterritorial effect of the statute

warrant affording a federal forum

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d. Grable and Sons Metal Products v. Darue Engineering (p. 317)i. Efficiency (caseload)

ii. Class of cases is likely to turn on issues of state or federal lawiii. The extent to which a sympathetic tribunal is necessaryiv. To what extent should this be in control of the Fed gov't v. State gov'ts

4. Amount in Controversya. Diversity only – must exceed $75,000

i. Not including interests or court costsii. Just has to show some possibility that that much is in question

1. AFA Tours v. Whitchurch (p. 285)- Cannot be dismissed unless it “appears to a legal certainty” that the claim is really for less than the jurisdictional amount

2. If P eventually recovers less doesn’t render the verdict subject to reversala. § 1332(b) - May deny costs to P, and even impose costs if less

than $75,0003. Usually according to P

iii. Aggregation of claims1. Aggregation by single P – if P has claim in excess of $75,000, he may

add to it any other claim of his against the same D, even though these other claims are for less

a. If P does not have a single claim that exceeds $75,000, he may add together all of his claims against a single D. Jxn if total more than $75,000

b. May not aggregate claims against multiple D’s2. Multiple P’s – at least one P must meet the amount, but the other P’s

don’t have toa. If no single P can meet the amount aggregation is not allowed.

i. Unless two P’s can unite to enforce a single title or right in which they have a common and undivided interest

b. Exxon Mobil - Where one P’s claim satisfies the minimum amount in controversy requirement for fed diversity jxn, and another P’s related claim doesn’t, § 1367 allows fed courts to exercise supplemental jxn over the claim that is less than required amount

5. Supplemental Jurisdiction § 1367a. Term replaces Pendant and ancillary jurisdictionb. § 1367(a) – in any civil action of which the district courts have original jxn, the district

courts shall have supplemental jurisdiction over all other claims that are so related to claims in that they form part of the same case or controversy

i. Gibbs - Under pendent jxn, federal courts may decide state issues which are closely related (same set of facts) to the federal issues being litigated. § 1367.

c. Fed Q – when the original claim comes within the court’s Fed Q jurisdiction § 1367 allows the court to hear any closely related state-law claims.

i. Allows additional parties to be brought in, or just the original partiesd. Diversity – some exclusions

i. Applies when1. 13(a) – compulsory counterclaims2. 13(h) – joinder of additional parties to compulsory counterclaims3. 13(g) – cross claims4. 14 – impleader – for claims by and against 3rd party P’s, and claims by 3rd

party D’s, but not claims by the original P against 3rd party D’s

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5. Multiple P’s who join together under Rule 20’s permissive joinder6. Joinder of P for Rule 23 class action based on diversity

ii. Does not apply when1. 14(a) Claims against 3rd party D’s2. 19(a) Compulsory joinder – neither a claim against such a person, nor a

claim by that person comes within supplemental jxn in diversity only3. 20 – permissive joinder4. 24 – intervention –P’s who intervene do not get benefit of Supp jxn

iii. Basically additional claims asserted by D fall w/in supp jxn, but additional P claims are generally not included.

e. Executive Software – Absent extraordinary circumstances, § 1367(c)(1)-(c)(3) sets forth the exclusive circumstances under which a fed court may appropriately decline pendent jxn.

i. 1367(c)(4) sets forth discretionary remand if compelling reasons and should be construed narrowly, if it best accommodates economy, convenience, fairness, and comity.

6. Removala. Any action brought in state court that the P could have brought in Fed court may be

removed by D to fed courti. Diversity limitation – In diversity, the action may be removed only if no D is a

citizen of the state in which the action in pending1. Exception – state class actions can be removed even though one or more

D’s are citizens of the forum stateb. Diversity and amount in controversy rules applicablec. Only D may remove – P defending counterclaim may not removed. Decided from the face of the pleadings – P’s complaint controlse. Multiple claims – when P asserts against D in state court 2 claims one of which can be

removed and one can’ti. Diversity – defeats removal, whole case must remain in state court

ii. Fed Q - § 1441(c) – if there is another separate and independent claim for which there is no fed jxn, D may remove whole case

1. Fed court may remand state law matters – may even remand fed claim if state law predominates in the whole controversy

2. Borough of West Mifflin v. Lancaster (p 356) - Case removed to fed court, then remanded to state court because state claims predominate.

a. A district court may not remand to state court an action on the grounds that the state law claims predominate. § 1441(c) allows remand only when fed claims are separate and independent from state claims.

f. Compulsory remand – if fed judge concludes that removal did not satisfy the statutory requirements, she must remand

g. Time – D must usually file for removal w/in 30 days of the time he receives serviceh. All D’s must join in the notice of removal

VenueDefinition – the place within a sovereign jurisdiction in which a given action is to be brought. It becomes a consideration only when jurisdiction over the parties has been established

1. State action – determined by statute, not really determined by the Constitutiona. Most commonly venue is authorized based on the county or city where the D resides.

Many states also allow venue based on where the cause of action arose

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b. Forum non conveniens – state may use its discretion not to hear the case in a county where there is statutory venue

i. Whether plaintiff is a residentii. Whether the witnesses and sources of proof are move available in a different

state or countyiii. Whether the forum’s own state laws will govern the action

2. §§ 1391, 1404, 1406, 1407 Federal Actions – which federal district shall try the actiona. Not a substitute for JOPb. Three ways for venue in a particular districtc. If any defendant resides in that district, and all defendants reside in the state containing

that districti. Diversity and Fed Q

d. Substantial part of the events giving rise to the claim occurred in the districti. Or substantial part of the property that is the subject of the action is situated

e. If at least on defendant is reachable in the district and no other district qualifiesi. Usually used for cases where events occurred abroad

ii. Diversity – venue in district in which any defendant is subject to JOP, if there is no district in which the action may otherwise be brought § 1391(a)(3)

iii. Fed Q – venue in which any defendant may be found if there is not district in which the action may otherwise be brought § 1391 (b)(3)

f. Removal – a case removed from state to federal court passes to “the district court of the U.S. for the district and division embracing the place where such action is pending.” § 1441(a)

g. Forum non conveniens – when D successfully moves for FNC, the original court transfers the case to another district rather than dismissing it.

i. § 1404(a) – for the convenience of parties and witnesses…a district court may transfer any civil action to any other district or division where it might have been brought

ii. § 1406(a) – when a suit is brought in a district where venue is improper, the action may be transferred to a district where it might have been brought

1. Mays till be transferred if lacking JOPiii. Hoffman v. Blaski – D’s motion – transferred only to a district where P would

have had the right, independent of the wishes of D to bring the action1. If the P could not have properly served the defendant in the transferee

district, then transfer is not proper under the statute.iv. Venue may be waived

1. Van Dusen v. Barrack Choice of law – state law of the transferor court is to be applied by the transferee

a. Ferens v. John Deere - law follows regardless of who initiates the transfer

b. Piper Aircraft - A P may not defeat a motion to dismiss for FNC merely by showing that the substantive law that would be applied in the alternative forum is less favorable to him than that of the present forum.

c. Gulf Oil v. Gilbert (p391) - factors to consider in FNC i. interest of the litigant,

ii. ease of access to proof, iii. availability of compulsory process for attendance of

unwilling witnesses, iv. other practicalities that make trial “easy, expeditious and

inexpensive.”

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v. public interest, vi. judicial economy,

vii. jury duty as a burden on people of a community with no relation to the litigation,

viii. local interest in deciding local cases in that locality,ix. hold trial where people interested are and can learn of it, x. have trial in place where law is familiar.

Pleading See FRCP 8, 9, 10, 11, 12 esp. 12(b)(6)1. Generally

a. Pleadings need not be verified (or sworn to)i. Exceptions

1. Stockholders’ derivative action FRCP 23.12. Temporary Restraining order 65(b)

b. Attorney must sign the pleadings Rule 11i. If the lawyer knows the pleadings are not well grounded in fact, the court must

impose an appropriate sanction – most commonly attorney’s fees to other side1. 21 day safe harbor to withdraw or modify challenged pleading and avoid

sanctionc. Alternative pleading allowed 8(d)

2. Complainta. Initial filing, filed by P, this commences the action (in diversity commencement for

statute of limitations purposes depends on how state law defines commencement)b. Elements of complaint 8(a)

i. Jurisdiction – short and plain statement on the grounds of jurisdictionii. Statement of the Claim

iii. Relief – demand for judgment for the reliefiv. Gillispie v Goodyear (p.555) - Pleadings should disclose what occurred, when it

occurred, where, who did what, etc.v. Dioguardi v. Durning - P drew up his own complaint when Customs confiscated

his wine1. The FRCP only require a complaint contain a short and plain statement

of the claim showing a right to relief. c. Specificity – short and plain statement of the claim showing that he is entitled to relief.

Factual detail is not high, gaps remedied by discoveryi. Legal theory not required – need only state the facts, not the legal theory he is

relying uponii. Prima Facie case need not be recited –P just needs to give enough facts to put D

on notice about what is being alleged, it is irrelevant that the P has failed to allege some matter that he will ultimately have to prove in order to recover

iii. Conley p.562 - "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief."

iv. Erickson p.577 - courts give more latitude for pleading for small claims, and non-lawyers

1. "Specific facts are not necessary; the statement need only give the defendant fair notice of what the claim is and the grounds on which it rests"

v. Bell Atlantic v. Twombly (p. 568) telephone co. violating antitrust laws.

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1. In order for a complaint to survive dismissal on the pleadings, the complaint must include enough facts to state a claim to relief that is plausible on its face. Antitrust cases have a higher stander than other cases.

d. Special matters that must be pleaded with particularityi. Rule 9

1. Denial of a party’s legal capacity to sue or be sued2. The circumstances giving rise to any allegation of fraud or mistake3. Any denial of performance or occurrence of the condition precedent 4. The existence of judgments or official documents on which the pleader

plans to rely5. Material facts of time and place6. Special damages7. Certain aspects of admiralty and maritime jurisdiction

a. These apply to answer as well as complaint3. Responding to the Complaint (Answer)

a. Motions against complainti. Either in answer or in separate motion D may attack the validity of the complaint.

Rule 12(b)1. Lack of jurisdiction over the subject matter2. Lack of jurisdiction over the person3. Improper venue4. Insufficiency of process5. Insufficiency of service of process6. Failure to state a claim upon which relief may be granted7. Failure to join a necessary party under 19

ii. 12(b)(6) – motion to dismiss for failure to state a claim upon which relief can be granted

1. On the facts as P has pleaded, no recovery is possible under any legal theory

2. This is generally made before D files his answer. If D has filed his answer and the pleadings are complete, D can accomplish the same result by making a 12(c) motion for judgment on the pleadings

3. Garcia v. Hilton Hotels International, Inc. p.579 - 12(b)(6)a. On a motion to dismiss for failure to state a claim the complaint

must be construed in the light most favorable to plaintiff with all doubts resolved in his favor and the allegation taken as true

b. Plaintiff must only plead what he must prove in court4. American Nurses' Association p.603 - If a complaint’s allegations are

ambiguous and one reading states a possible claim, the claim cannot be dismissed under Rule 12(b)(6) of the Federal Rules of Civil Procedure. The defendant can only move for the court to order the plaintiff to allege a more definite statement of the claim.

iii. Amendment – if the complaint is dismissed in response to D’s dismissal motion, P will almost always have the opportunity to amend

1. 15(a) - Amendment of right – P may automatically amend, w/out leave of court any time before a responsive pleading is served, and motions made under 12(b) are not deemed to be responsive pleadings

2. By leave of court – if D serves his answer before making a 12(b) motion and is successful, P may amend only if the court allows, which it almost always does

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iv. 12(e) - D may move for a more definite statementv. 12(f) – if P has included redundant, immaterial, impertinent or scandalous

material in the complaint, D may move to have this material stricken from the pleading

b. 8(b) - Answer generally – D states in short and plain terms his defenses to each claim asserted, and admits or denies each count of P’s complaint

i. Alt. Pleading – may also be pleaded in the alternativeii. Rule 11 - Answer must be signed by D’s attorney

iii. Denials1. 8(b)(6) – those not denied are deemed admitted 2. D may make general denial, denying each and every allegation (but then

must contest all of P’s allegation or face sanctions)3. Specific denial – which denies all of the allegation of a particular

paragraph or count of complaint4. Qualified denial – denial of a particular portion5. Denial of knowledge or info – which says D doesn’t have enough

knowledge or info sufficient to form a belief as to the truth of P’s complaint (must be in good faith)

6. Based on info and belief – I don’t know, but believe it is false7. Zielinski p.612 - Under Rule 8(b) of the Federal Rules of Civil

Procedure, allegations in a complaint that are not specifically denied are deemed admitted.

iv. 8(c) - Affirmative defenses must be explicitly pleaded in the answer in order to raise at trial

1. Most importanta. Contributory negligenceb. Fraudc. Res judicatad. Statute of limitationse. Illegalityf. Any defense which relies on facts particularly w/in the D’s

knowledge is likely to be found to be an affirmative defense2. Ingraham p.618 - Under Rule 8(c) of the Federal Rules of Civil

Procedure, affirmative defenses listed in the rule or “any other matter constituting an avoidance or affirmative defense” that are not raised in the answer are waived. The major consideration behind the rule is preventing unfair surprise.

v. 13(a) – Counter claim – compulsory if it “arises out of the transaction or occurrence that is the subject matter of the P’s claim”

4. Time framesa. 12(a)

i. Complaint – filing of complaint normally happens before it is served. Service must then normally occur before 120 days 4(m)

ii. Answer – must be served w/in 20 days after service of complaint except that1. If P has served D out of state, by long arm (4(k)(1)(A)) the time to

answer allowed under that state rule controlsiii. Rule 12 motion – if D makes Rule 12 motion and loses, D has 10 days after the

court denies the motion to answeriv. Waiver of service – if D waives (4(d)), then he gets 60 days to answer running

from the date the request for waive was sent by P 12(a)(1)(A)(ii)v. Reply to counterclaim – P must serve rely within 20 days after service of answer

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5. Replya. “Answer to an answer” allowable if

i. The answer contains a counterclaim (reply required)ii. At P’s option, if P obtains a court order allowing a reply

6. Amendmentsa. Federal Rules are liberal in allowing amendment of pleadingsb. Amendment as of right - a pleading may be amended once as a matter of right

i. Complaint – may be amended at any time before the answer is served (motion not the equivalent of an answer)

ii. Answer – may be amended once w/in 20 days after D has served it (if it contains a counterclaim, the answer may be amended until P has served reply)

c. By leave of court – if above requirement are not met a pleading can only be amended by leave of court, or consent of the other side. But the court “ should freely give leave to amend when justice so requires” 15(a) – usually only denied if it will cause prejudice to the other side

i. Beeck v. Aquaslide ‘N’ Dive - Under Rule 15(a) of the Federal Rules of Civil Procedure, a party can amend its pleading only with leave of court or consent of the other party. Leave shall be freely given. Leave to amend should only be denied if the party opposing the amendment can show bad faith, undue delay, or prejudice.

d. Relation back – the amendment relates back to the date of the original pleading if they claims arose out the conduct, transaction or occurrence in the original pleading” – useful in meeting statute of limitations

i. Action commenced – Rule 3 – on the date which the complaint is filedii. Change of party – only relates back if

1. Same transaction or occurrence2. The party to be brought in by amendment received actual notice of the

action before the end of 120 days following original service3. The new party “knew or shoud have known that the action would have

been brought against it, but for a mistake concerning the proper party’s identity” 15(c)(1)(C)(ii)

iii. Worthington v. Wilson - an amended complaint does not relate back to the original complaint where the amended complaint names Ds whose names were not known at the time the original complaint was filed. 15(c) requires the P “knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought” against them. There was no mistake in this case, just lack of knowledge.

7. Supplemental Pleadingsa. 15(d) - Supplemental Pleadings

i. Setting out any transaction, occurrence, or event that happened after the date of the pleading

ii. Some courts will allow new claims or substantially different claims in the interest of judicial economy

iii. Most courts will let it relate back under 15(c) even though supplemental pleadings are different

8. Provisions to deter Frivolous Pleadingsa. Surowitz v. Hilton Hotels - Party verifying a complaint as required by 23.1(b) is not

required to verify the complaint on the basis of her own knowledge if she has been advised by a competent individual that the allegations in the complaint are true. This rule is in place to prevent ungrounded “strike suits.”

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b. Hadges v. Yonkers Racing Corp - Pursuant to FRCP 11, those facing sanctions must receive adequate notice and the opportunity to respond.

Joinder of Claims and Parties1. Overview

a. Cluster One: Basic Threei. Joinder of Claims

ii. Permissive Joinder of Partiesiii. Compulsory Joinder of Parties

b. Cluster Two (Can have SMJ Problem) i. Counter Claim

ii. Cross Claimiii. Third Party Claims

c. Cluster Three Big Proceduresi. Interpleader

ii. Interventioniii. Class Action

2. Cluster one: Joindera. Joinder of Claims

i. Federal Rules: Anything1. 18(a) – once a party has made a claim against some other party, he may

then make any other claim he wishes against that party2. Any grievance against the D. does not have to be transactional related.

Not out of the same substantive law background. ANYTHING may be joined.

3. Not required, left at claimants option4. Harris v. Avery - A alleged H slandered him. H claims A stole a horse.

a. P may unite causes of action when they arise from same transaction or transactions connected with the same subject matter. Rule 18- can join liberally, unless creates smj issues, the court may also separate claims if it would be easier for the jury.

5. M.K. v. Tenet - Rule 18 permits joinder of all claims a party has against an opposing party.

ii. State Courts1. Split

a. Same Transaction or Occurrencei. Auto accident

ii. Contractiii. Property iv. Pattern of Discrimination v. Conspiracy

b. Anything Approach b. Permissive Joiner of Parties Rule 20

i. Two Part Test1. Any parties whose claims that as plaintiffs or whose potentially liability

stems from the same transaction or occurrence. 2. The claims/liability must create a common question of law or fact

ii. Joinder of P’s – Multiple P’s may voluntarily join1. Single transaction or occurrence2. Common Q of law or fact common to all P

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iii. Joinder of D’s – same test, at P’s optioniv. Jurisdiction

1. JOP – joinder of multiple D’s JOP must be met with each D individually and be personally served

2. SMJ – All Parties must meet Fed SMJ. Supplemental Jurisdiction generally does not apply to joinder of multiple D’s; it only partially applies to Multiple P’s

a. Complete Diversity – Aggregation where one P meets amountb. Tanbro v. Beaunit (p. 685) The term “same…transactions or

occurrences” does not require the parties to have identical duties and obligations to the plaintiff.

i. Joinder should be liberally granted under the new rule if it would be more convenient to try the cases together.

c. Compulsory Joinder of Parties Rule 19i. Three Levels of Analysis (in order)

1. Who MUST be joined? 19(a)a. Necessary Parties – must be joined if jurisdictionally possibleb. Intended to avoid prejudice to two classes of people:

i. Impaired interest - If you don’t get the outsider in, it’s the outsider who will be hurt by prejudice

1. Exceptiona. Torts: Joint and Several Liability =don’t

have to join all ii. Incomplete relief - If you don’t get the outsider in, the

insider will be hurt (that person already in court) by not getting effective relief

2. After deciding that the outsider should be joined and it appears that the outsider can’t be joined because there is lack of jurisdiction. Deal with the issue of SMJ or Personal JXN

3. Once someone is an indispensable party, but there’s no JXN, you have to dismiss. However, FRCP 19(b) says that the Court should try to go forward the best it can. You shape relief.

a. Exceptions where you’ll dismissi. Land partition

4. Provident Tradesman Bank v. Patterson - Under Rule 19(b) there is a concern about prejudice to parties from not joining a party. Look at several factors:

a. P in having a forum b. D may wish to avoid multiple litigation or inconsistent reliefc. Interest in outsider who wished to joind. Interest of courts and public.

3. Counter-Claims/Cross Claims/ Third Party Claims (Impleader)a. Counter Claim (D Returning Fire)

i. Compulsory 13(a)1. A counter-claim that arises out of the same transaction or occurrence

that is the subject of the main claim or a related series of transactions or occurrences

a. Efficiency device: You avoid multiplicity of litigation2. If not asserted it is waived. You cannot assert it in a subsequent action. 3. Rides the coattails of the base claim

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a. Gets supplemental jurisdiction: Series of same transactions or occurrences 1367(a)/Gibbs

b. Bypass amount in controversy rulec. Bypass the complete diversity rule

4. Heyward-Robinson Co. p.658 - Counterclaims need only have similar circumstances to the subject matter of the litigation in order to be compulsory. There need not be identical facts.

a. Failing to assert your claim in the first instance bars you from bringing it in the future (if it is a compulsory counter claim)

ii. Permissive 13(b) 1. Anything Else; Anything that is not transactionally related.

a. Does not get Supplemental Jurisdiction automaticallyb. The Cross Claim: A claim between two co-parties = doesn’t cross the v. (FRCP 13(g))

i. Must arise out of the same transaction or occurrence 1. Probably in line with gibbs and § 1367(a)

ii. Takes supplemental jxn 1. Is not excluded by 1367(b)

iii. Lasa p.668 Test: Logical relationship between the cross-claims and the transaction or occurrence that is the subject matter of the complaint and the two pending counterclaims

iv. Transaction or occurrence tests p.663 note 21. Issues of fact and law the same?2. Would res judicata bar a subsequent suit3. Will substantially the same evidence support or refute claims?4. Logical relation between claim and counter claim

c. Third Party Claims (FRCP 14). Sometimes called Impleader/Third party Practicei. The action over for indemnification or contribution. Each party pointing a finger

at someone down the line. Brings in a third party defendantii. Jeub v. B/G Foods - P claimed he got sick from eating at D1’s restaurant. D1

disclaimed negligence and blamed D2.1. If the 3rd party D is or may be liable to D, then D can implead 3rd Party

D rather than wait until after the law suit to bring a new lawsuit. Determine rights of all parties and avoid subsequent independent actions

iii. Too, Inc. v. Kohl's p.7071. Whether to grant leave to implead

a. Whether the movant deliberately delayed or was derelict in filing the motion (good faith)

b. Whether impleading would unduly delay or complicate the trialc. Whether impleading would prejudice the third party defendantd. Whether the third party complaint states a claim upon which

relief can be grantediv. Third Party Claims requiring brining in a new Plaintiff or Defendant

1. Here is some backdoor questioning: a. JXNb. Noticec. Service of Process

v. Supplemental JXN 1367(b)1. Excludes Rule 14. But! It only excludes Rule 14 situations brought by

the original plaintiff.

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a. Rule 14(a)(3) allows the original plaintiff to bring an action against a 3rd party defendant. This is what is being knocked out of supplemental jxn.

4. Big Procedures – Interpleader/Intervention/Class Action a. Interpleader

i. A technique whereby a party who owes something to one of two or more other persons, but isn’t sure which, may force them to argue out their claims among themselves before coming to sue him.

ii. It is designed to prevent the party from being made liable to the same claim twice.

iii. Hancock v. Independent Distributing1. If adverse claimants both claim the right to the same debt or property, the

party owing the debt/holding the property can interplead both claimants and force them to litigate the issue of which claimant has superior claim to the debt/property.

iv. New York Life v. Dunlevy - P had a judgement entered against her intrests in PA over a life insurance claim. One of the parties tried to implead her there, but it was not valid b/c PA did not have personal jxn over her.

1. State court needed to have personal jxn over both partiesb. Types of Interpleader in Federal Courts

i. Statutory Interpleader § 1335, 1. main benefits relate to jurisdiction and service

a. Amount in controversy $500b. Minimal diversity required – only 2 claimants must be diversec. Nation-wide personal jurisdiction - nationwide service § 2361d. Venue – suit may be brought “in the jurisdictional district in

which one or more of the claimants reside” § 13972. Commenced by stakeholder, and the stakeholder must deposit into court

the amount of property in Q, or post a bond for that amounta. Stakeholder is not estopped from claiming that he doesn’t owe

anything at all at trial3. Once begun the court may restrain all claimants from starting or

continuing any other action which would affect the propertyii. Pan American v. Revere

1. Rule 22 and § 1335 via § 2361 can enjoin actions and it is enough that insurance company has the potential of double liability.

2. Venue-If D do not all live in the same state, the state of stakeholder will work.

iii. State Farm v. Tashire - Greyhound bus crash in CA. P sought to interplead all of the other parties.

1. Only can bar suits against the stake holder and not other suits arising out of the incident.

iv. Rule Interpleader FRCP 22 1. Requires complete diversity of citizenship

a. Operating under the forum state’s long-arm statute. Do the analysis.

2. More than $75,000 involved3. Normal venue 4. No court deposit by stakeholder5. 22(1) – stakeholder may “aver that the P is not liable in whole or in part

to any or all the claimants” – stakeholder may deny liability

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Statutory Rule 22When there is no Fed Q, what kind of Diversity must apply?

Some pair of claimants must be diverse with each other

The stakeholder must not have the same citizenship as any

claimantWhere may service of process be made?

Anywhere in the U.S. Ordinary rules for fed civil suits must be followed

Amount in controversy More than $500 More than $75,000 (unless a fed Q is present)

Must the stakeholder deposit the amount in dispute in court?

Yes No

May the stakeholder claim that he is not liable to any of the claimants?

Yes Yes

c. Interventioni. FRCP 24

1. Intervention as of Righta. Statute b. Interest in property and the disposition of the action may impair

of impede the interveners protection of his property 2. Permissive

a. Discretionary Interventionb. Must raise an issue by claim or defense that is common to the

rest of the case 5. Identifying Parties Who may Sue and Be Sued

a. Rule 17 - General rule is that the suit must be brought in the name of the real party in interest but the rule also creates exceptions to the general rule. 17(a)(1)(A)-(G) and 17c

a. An executorb. An administratorc. A guardiand. A baileee. A trustee of an express trustf. A party whom on in whose name a contract has been made for

another’s benefit; andg. A party authorized by statute

ii. 17(c) – Minor or incompetent personb. Ellis Canning v. International Harvester - P had already collected money from

insurance company for damages but brought suit in own name for the benefit of insurance company

i. Every action must be prosecuted in the name of the real party in interest which was the insurance company in this case

Class Actions1. Benefits p.744

a. Mass tort class actions are critical for securing judicial accessb. Promotes efficiencyc. Creates incentives that deter institutional wrongdoing

2. Criticisms p.744a. Generating unwarranted legal feesb. Inflated product prices

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c. Contributes to corporate bankruptciesd. Raises due process concerns because of the lack of P autonomy

3. Started the same way as a regular claim p.748 FRCP 23(c)a. The difference is that a class action lawsuit is filed in a representative capacity on behalf

of persons who are similarly situated to the named P4. A procedure whereby a single person or small group of co-parties may represent a larger group,

or “class” of persons sharing a common interesta. Jurisdiction – Only the representatives must satisfy the requirements of JOP, SMJ, and

venue.b. Binding on absentees – the results of a class action are generally binding on the absent

members. Procedural rules exist to make sure absentees receive due process.c. Defendant class – Class may be composed of Plaintiffs or Defendants (usually the class is

composed of Plaintiffs)5. FRCP 23 – Class Actions

a. 4 prerequisites FRCP 23(a)i. Numerosity - Size – class must be so large that joinder of all members is

impractical (there have been as few as 10 certified and as few as 30 not certified)1. The geographically dispersed the claimants are, the fewer are needed to

satisfy the requirement2. Alternatives – Joinder or multiple suits

ii. Commonality – questions – there must be common questions of law or fact common to the class (not usually a problem) common to other methods to consolidate 24(b) 42(a)

iii. Typicality – Typical claims – the claims or defenses of the representatives must be typical of those of the class (not usually a problem)

iv. Adaquacy – Fair representation – reps must show that they can fairly and adequately protect the interests of the class

1. No conflict of interest2. Competent legal counsel

b. Three categories 23(b)i. 23(b)(1) – Prejudice Class Actions

1. Test – if individual actions by or against members of the class would create a risk of

a. Inconsistent decisions forcing an opponent of the class to observe incompatible standards of conduct

b. The impairment of the interests of the members of the class who are not actually parties to the individual actions

2. No opting out – Members of class may not opt out of the class, any absentee is bound by the decision of the suit

3. Mass tort claims – so many claims that D may be insolvent before later claimants can collect

ii. 23(b)(2) – Injunctive Class Actions – if the suit is for an injunction or declaration that would affect all class members – Most common

1. Civil rights case – this category usually used for discrimination cases2. No opt out (23(c)(3))

iii. 23(b)(3) – Damage Class Actions1. 2 requirements

a. Common questions – questions of law or fact common to class members predominate over any questions affecting only individual members

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b. Superior method – Class action must be superior to other methods

i. The interest of members in individually controlling their separate actions

ii. Presence of suits already commenced among membersiii. Desirability of concentrating litigation of the claims in a

particular forumiv. Manageability – any difficulties likely to be

encountered in the management of a class actionc. Notice – absent class members must almost always be given notice of the suit

i. FRCP explicitly require this only for b(3) actions, but courts can require it of b(1) and b(2) actions as well

1. Individual notice – usually by mail given to those members whose names and addresses can be obtained with reasonable effort.

2. Publication notice – if names and addresses cannot be obtainedii. Contents – tell claimant that he may opt out of the class if he wishes (b(3) only)

and that judgment will affect him unless he opts outiii. Cost – The cost of identifying and notifying class must normally be borne out by

representative Plaintiffs.d. Binding on all members (whether for or against) except in b(3) if they opt oute. SMJ issues

i. Federal question issues are rareii. Diversity cases – usually issues with amount in controversy

1. Diversity – rarely a problem – only the citizenship of the class representatives matters

2. Amount in Controversya. If at least one named member qualifies other members may join

even if their amount is less than requiredb. Named members can’t aggregate – at least one named member

must independently meet the jurisdictional amount - $75,000i. Exception – class action may go forward if

1. There is minimal diversity2. There is at least $5million in controversy in the

aggregate even if no single member’s claim is more than $75,000

f. Certificationi. If court refuses to certify

1. Continued by representative but with no res judicata effect on other members, usually will not proceed

2. Sub-class – res judicata affects sub-members3. No appeal of a certification

g. Settlements – any proposed settlement must be approved by the court FRCP 23(e)i. Notice of proposed settlement must be given to each member

h. Attorney’s fees – court may award attorney’s feesi. Generally in proportion to the size of recovery

ii. Federal – attorney’s fees only if federal statute provides (civil rights, securities law)

6. Phillips Petroleum Co. v. Shutts p.786a.  In order to bind absent class members to a class action involving monetary judgment,

due process requires that all absent class members receive notice describing the litigation, their right to appear, and their right to opt out of the litigation.

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b. A state’s law can only be applied if the state has contact or an aggregation of contacts that create state interests in the litigation so that the choice of law is neither arbitrary nor unfair.

c. Chosen Action an intangible claim for reliefd. An “opt in” provision would impede the class action and would require revisions of many

lawsuits.e. All State test – A State must have a significant contact or aggregation of contacts to

the claims asserted by each member of the P class, contacts creating state interests in order to ensure that the choice of State law is not arbitrary or unfair. If there is a conflict of law, you must decide which law will apply.

Depositions and Discovery Rules 26-371. General Scope – Rule 26(b), which applies to all forms of discovery, provides that the parties

may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense.

2. 26(f) – Parties must confer as soon as practicable and at least 21 days before a scheduling conference under 16(b)

3. Court generally doesn’t get involved unless there is abuse, or noncompliance4. Disclosure

a. Automatic and Mandatoryi. Only have to mandatorily disclose things you plan to use at trial (Cummings

p.849)ii. Pre-discovery – 26(a)(1), a party must, even without a request from the other

side, automatically disclose certain things early in litigation. The most important:1. All witnesses with discoverable information: name, address, phone

number of each witness that a party plans to use in its casea. Upon request all witnesses (occurrence witnesses) are

discoverable2. Documents – a party must furnish a copy, or a description by category

and location, of all documents and tangible things in that party’s possession that the party intends to use

3. Damages – basis for damages must be disclosed4. Insurance – must disclose liable insurance policies (limited by rule 34)

iii. Other: later in litigation each party must automatically disclose to the other the details of expert testimony and witnesses and exhibits to be used at trial

b. If something does not fall under 26(a)(1) or 26(a)(3) then ask the following questionsi. Is the material RELEVANT?

1. If no, then discovery not allowedii. Will the material be ADMISSIBLE?

1. If not, discovery not allowed unless the information appears reasonably calculated to lead to the discovery of admissible evidence.

a. Relates to the identity and whereabouts of any witness who is thought to have discoverable information

2. Relevant but inadmissible:a. Leads: material which will serve as a lead to admissible evidenceb. Legal theories: 33(a)(2) material relating to legal theories on

which the responding party expects to rely on trialc. Witnesses: 26(b)(1) the identity and whereabouts of any witness

(also not privileged, and outside work product immunity rule)iii. Is the information PRIVILEGED? 26(b)(1)

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1. If it is, then not discoverable unless privilege is waiveda. Only the person who could assert the privilege at trial may resist

discovery on the grounds of privilegeb. In diversity cases, state law of privilege applies

i. Fed Rule of Evidence 501c. Attorney Client Privilege p.908

i. The asserted holder of privilege is or sought to be a client

ii. The person to whom the communication is made1. Is a member of the bar, or his subordinate2. Is acting as a lawyer

iii. Communication relates to a fact of which the attorney was informed

1. By his client2. w/out presence of strangers3. for the purpose of securing

a. an opinion on lawb. legal servicesc. assistance in some legal proceeding

4. not for the purpose of committing a crime or tort

iv. the privilege has been1. claimed2. not waived by the client

iv. Is the information outside of the WORK PRODUCT IMMUNITY? 26(b)(3)1. If it is qualified work product immunity 26(b)(3)(A), discovery

allowed only if there is a showing of substantial need of the material, and an inability to acquire it by other means w/out undue hardship

a. Qualified immunity – documents prepared “in anticipation of litigation” (notes taken on what a prospective witness said, etc.) by any representative of a party

b. Overcome by hardship – qualified rather than absolutei. Discovering party has substantial need and the

equivalent is not available by other meansii. Test: Cannot without undue hardship obtain the

substantial equivalent by other means 26(b)(3)(A)(ii)iii. Hickman v. Taylor – Absent a showing of necessity or

justification, attorney work product is undiscoverable1. If the discovering party can obtain the desired

qualifiedly privileged information elsewhere, he has not met the burden showing the kind of special circumstances necessary to overcome qualified immunity

a. Special circumstances – witness dead2. Absolute work product immunity, no discovery 26(b)(3)(B)

a. 4 factors p.908i. Holder of the privilege is or sought to be a client

ii. Person to whom the communication was made1. Is a member of the bar or court, or his

subordinate

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2. In connection w/ this communication is acting as a lawyer

iii. The communication relates toa fact of which the attorney was informed

1. By his client2. Without the presence of strangers3. For the purpose of securing primarily either

a. An opinion on law orb. Legal services orc. Assistance in some legal proceeding

4. Not for the purpose of committing a crime or tort

iv. The privilege has been 1. Claimed and2. Not waived by the client

b. Mental impressions, conclusions, opinions, or legal theories of a party’s attorney or other representative

i. May not be absolute, at the very least need a far stronger showing of necessity and unavailability by other means Upjohn Co. v. U.S. p.915

1. Communication must be one that would not have been made but for contemplation of legal services

2. Must relate to legal services being rendered3. Information giver must be an employee, agent,

or independent contractor with a significant relationship to corp.

4. Must be made in confidence5. May be asserted by the corp. or the info-giver6. Attorney-client privilege extends to lower level

employees, not just to those in control of the corporation.

7. The work-product doctrine protects oral statements made to attorneys, which necessitates a showing of undue hardship on the part of the party-opponent who seeks that information.

8. Facts are still available, just can’t get it from attorney work product. Do your own work

v. Is the material composed of facts and/or opinions held by experts?1. If yes, may or may not be allowed depending on factors concerning

discovery concerning expertsvi. Is the material sought for discovering whether the other party has evidence

designed to impeach the discovering party’s credibility?1. Yes, may or may not be discoverable (impeachment materials)

c. Expert Discovery 26(b)(4)i. Where one side expects to call an expert at trial, the other side gets extensive

discovery1. Identity (automatic) – each expert2. Report – expert must prepare and sign a report

a. Opinions and basis for themb. Data considered

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c. Exhibits to be usedd. Qualificationse. Compensationf. Names of other cases in which he testified in the last 4 yrs

3. Deposition – expert must be available to be deposed after furnishing report. Party taking the deposition must pay fee

4. Employee experts must furnish report, if his regular duties involve giving expert testimony

5. Krisa p.917 – Preliminary reports and opinions made by expert witnesses who are expected to testify at trial are not protected under the work product doctrine and are therefore discoverable.

a. Communications made by litigant’s counsel to their expert witnesses with regard to matters that are protected by the work product doctrine are not discoverable

ii. Retained but not to be called to testify at trial – discoverable only upon showing of exceptional circumstances making it impractical for the party seeking discovery to obtain the information by other means

1. Physicians report discoverable 35(b)2. Exceptional circumstance – if there is only one expert available in a field

iii. Unretained, not to be called – no discoveryiv. Participant experts – one who actually took part in the transactions or

occurrences that are part of the subject matter lawsuit – treated like an ordinary witness

1. Expert is a party – normal witnessd. Insurance – insurance agreements under which an insurer may be liable to satisfy

judgment is discoverablee. 26(b)(5) – If a party is declining to furnish documents or info because of a claim of

privilege or work immunity, the party must make the claim expressly, and must describe the nature of the documents or info

f. Duty to supplement – 26(e)(1); 26(e)(2)i. Mandatory – must supplement, in a timely manner

ii. Expert – both in the report and to information given during deposition5. Depositions Rules 28-32

a. Rule 28 – Persons before whom depositions must be takenb. Each deposition one day of 7 hoursc. Characteristics

i. Extrajudicial – except for requests for physical examinationii. Scope – must be relevant and unprivileged

iii. Signature required by the lawyer preparing 26(g)iv. Only parties – except for depositions – may only be addressed to the parties

d. Oral – after beginning an action any party may take the oral testimony of any person thought to have relevant information

i. Non-parties may be deposedii. Subpoena – non-party must be subpoenaed. Must be within 100 miles from place

where deponent resides, employed, or regularly transaction business in person 45(c)(3)(A)(ii)

1. No subpoena for party Rule 37iii. Request to produce documents

1. If a party rule 37 request to produce2. Non-party – subpoena duces tecum (for documents)

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iv. Limited to ten depositions unless adversary agrees to more or there is a court order 30(a)(2)(A)(i)

e. Written questions – any party may take the oral responses to written questions, from any person (party or non) thought to have discoverable information (mainly used for distant non-parties) (Rule 31)

f. FRCP 32 - Use in court proceedingsi. 32(a)(5) limitations

g. Interrogatories to the parties: a set of written questions to be answered in writing, by the person to whom they are addressed. May only be addressed to a party 33(a)

i. 33(a) A party served with an interrogatory must respond with all information it has, within its control (contractual, employee, financial), which includes information that they could compel from a third party

ii. Presumptive limit of 25 interrogatories a party may serveiii. 33(c) – an answer to an interrogatory may be used to the extent allowed by FREiv. 33(b) objections must be stated with specificity

h. Request for admission: One party may serve upon another party a written request for the admission, for the purposes of the pending action only, of the truth of any discoverable matters Rule 36

i. Coverage – genuineness may be requested of statements or opinions of fact, the application of law to fact, and the genuineness of any documents

ii. Expenses for failure to admit – any matter under 36(a), and the party making the request proves the truth at trial, the party who refused to admit may be required to pay reasonable expenses incurred in making that proof (including attorney’s fees) 37(c)(2)

iii. Effect – if a party makes an admission it is conclusively established at trialiv. 30 days to respond

i. Request to produce documents Rule 34i. Only to parties

ii. Only required to produce if the document is under the party’s possession, custody, or control

iii. May inspect, photograph, and survey landiv. 34(2)(E)(1) – produce documents as they are kept in the usual course of businessv. Non-Parties – may be compelled by subpoena Rule 45

1. 45(a)(1)(A)(iii) – attend, testify, produce, permit2. 45(b)(1) – pay fees

j. Physical and mental examination – only if in controversy Rule 35i. Applies to defendants as well as plaintiffs. Schlagenhauf

ii. Requires that the person to be examined be a party to the “action”, not that he be an opposing party of the movant Schlagenhauf

iii. Motion and good cause iv. Controversy – must be more than relevant, must be in controversyv. Reports from examiner – actual medical report is discoverable

1. Person examined may request, from the party causing the exam to be made, a copy of the examiner’s report

2. Other examinations – Once the examined party asks for and receives the report the other party is entitled to reports of any other examinations made at the request of the examinee for the same condition

6. Orders and Sanctionsa. Abuse of discovery

i. Objection – a party may object to a discovery request the same way a Q at trial may be objected to

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1. Not within scope of discovery (not relevant)2. Privileged

ii. Protective order 26(c)(1) – allows judge to make “an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” (trade secrets)

1. Prohibition of public disclosure – may allow discovery, but bars public disclosure

b. Compelling discovery – if one party refuses to cooperate, under Rule 37 a party may seek an order compelling discovery

c. Sanctions – against parties who acted unreasonably, usually against a party who fails to cooperate

i. Financial sanctions – 37(b)(2)(C) the court may require the discoveree to pay reasonable expenses the other party incurred in obtaining the order, may include attorney’s fees (may be against the party, the attorney, or both)

ii. Other sanctions – if a party persists in her refusal to grant discovery the court may impose additional sanctions 37(b)(2)

1. Facts established – the court may order that the matters involved in discovery be taken to be established

2. Claims or defenses barred 37(b)(2)(A)(ii)3. Entry of judgment – court may dismiss, or enter default judgment4. Contempt

iii. Mandatory Sanctions – If a party fails to comply with early automatic disclosure1. Failure to provide information or a witness, not then allowed to use

information or the witnessiv. Cine Forty-Second Street Theatre

1. A severe sanction was appropriate where the discoveree’s failure to comply with the discovery order was grossly negligent (inadequate, unprofessional, bad faith, willful conduct)

a. Final compliance insufficient, otherwise encourages dilatory tactics

Adjudication W/out Trial or by Special Proceeding1. Summary Judgment

a. Rule 56 If one party can show that there is “no genuine issue of material fact,” and that he is “entitled to judgment as a matter of law,” he can win the case without going to trial

i. Lundeen v. Cordner – Summary judgment is appropriate to decide a case when no triable issues of fact exist. SJ is like a directed verdict, same standard

ii. Court goes behind the pleadings – in deciding summary judgment – even if it appears from the pleadings that the parties are in dispute, the motion may be granted if the movant can show that the disputed factual issues presented by the pleadings are illusory.

1. How shown – The person moving for SJ bears the initial burden of production in summary judgment motion. Movant must come up with at least some affirmative evidence that there is no genuine issue of material fact. Mainly by:

a. 56(c)(4) Affidavits – must recite only matters as to which the affiant has personal knowledge, must state only matter admissible at trial, and must show that the affiant is competent to testify

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b. 56(c) Discovery – may submit fruits of discovery, no matter which side they were obtained from

c. Celotex v. Catrett – when the responding party will bear the burden of persuasion at trial, movant will not necessarily have to come up with affidavits, depositions, or other evidentiary materials. Movant may be entitled to SJ merely by showing that the existing record contains no evidence that the other side will be able to prove an essential element of its case. Must explain to the court in some detail why the discovery materials fail to establish the existence of an element of the other side’s case

i. SJ is not disfavored – designed to secure a just, speedy and inexpensive determination of every action

iii. 56(e) Opposition – the party opposing SJ usually also submits affidavits, depositions, and other materials

1. 56(e)(2) Opponent can’t rest on pleadings – The party opposing SJ may not rest on restatements of his own pleadings, and must instead present by affidavits or the fruits of discovery specific facts showing that there is a genuine issue for trial

2. Construction most favorable to non-movant – opponent receives the benefit of the doubt. All matters in the motion are construed most favorably to the party opposing the motion. Only if there is no way, legally speaking, that the movant can lose at trial, should the court grant SJ

iv. 54(b) Partial Summary Judgment – Summary judgment may be granted with respect to certain claims in the lawsuit even when it is not granted with respect to all claims

1. May appeal PSJ while undisposed-of claims are being tried2. 56(d)(2) – court may grant SJ on issue of liability alone, where genuine

issue of damages remainsb. Summary judgment is particularly inappropriate where the inferences which the parties

seek to have drawn deal with questions of motive, intent and subjective feelings and reactions

c. Scott v. Harris – p.982 – when parties disagree about the facts courts are required to view the facts and draw reasonable inferences in the light most favorable to the party opposing SJ

d. Anderson v. Liberty p.984 clear and convincing SJ harder for P easier for Di. In a ruling on SJ the judge must view the evidence presented through the prism

of the substantive evidentiary burden2. Dismissal of Actions

a. Voluntary dismissal by the Plaintiff – A plaintiff may voluntarily dismiss her complaint w/out prejudice (doesn’t operate on an adjudication on the merits, he may bring the suit again, 41(a)(1)) any time before the defendant serves an answer or moves for summary judgment.

i. 41(a)(1)(A)(i) Only the first dismissal of the claim is w/out prejudice1. Second dismissal operates as an adjudication on the merits

ii. 41(a)(2) After D has answered or moved for SJ, P may no longer automatically make a voluntary dismissal, but must get Court’s approval

iii. 41(d) if a claim has been voluntarily dismissed once before, the second time it is brought the court may order P to pay the courts costs of the 1st action before allowing the 2nd to go forward

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b. Involuntary dismissal – Court may dismissi. 41(b) grounds to dismiss

1. P’s failure to prosecute (failure to pursue the action)2. P’s failure to obey court orders (discovery, or pre-trial conference)3. Lack of jurisdiction or venue4. P’s failure to join an indispensable party5. Any other reasons listed as defenses in 12(b)

ii. 41(b) Involuntary dismissal is usually with prejudice. Those w/out prejudice:1. Lack of jurisdiction2. Venue3. Failure to join4. Otherwise specified by the court

iii. 52(c) Judgment on partial finding – if the P fails to show that he is entitled to relief, the judge can dismiss the case before D puts on case

1. Non-jury – if the P does not prove facts entitling relief the D makes the motion, the judge makes findings as if the case has been fully tried

2. Jury case – D’s motion at the close of P’s case is called a motion “for judgment as a matter of law”

iv. Standard of review on appellate level – abuse of discretion3. Default Judgment Rule 55

a. When a D has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter D’s default

b. Entering default judgmenti. By the clerk – if it is a sum certain, or be made certain the clerk (on P’s request,

by affidavit) must enter default judgment for that amountii. By the court – if D against whom DJ is sought has appeared the D must be

served of written notice of application for DJ 7 days before hearingiii. Setting aside DJ – 60(b) iv. Coulas v. Smith – Once an answer on the merits is filed and the case is at issue,

a default judgment cannot be issued. If the defendant fails to appear at the trial, a judgment on the merits may be entered against him upon proper proof.

Trial1. 7th amendment – “in suits at common law… the right of a trial by jury shall be preserved”

a. Reasons for Jury trialsi. Educates and keeps people connected with the courts, jurors often come away

with a renewed appreciation for the judicial systemb. Problems with trial by jury p.998

i. Do we truly have representative juries? (professionals, competent people often excluded

ii. Factual issues often very complexiii. Legal issues take time to explain to a juryiv. Limit to capacity of people to understand and remember the mass of complicated

transactions, documents, and legal principles described in a long trialv. The enormous impact on the lives of the jurors

c. Applies to federal trials, not state trials (has not been applied through the 14th A yet)d. Congress can provide legal v. equitablee. Rule 38(a) the right to a trial by jury – is preserved to the parties inviolate

i. Party must demand – not self-executing. A party who wishes a jury trial on a particular issue must file a demand for that jury trial to the other parties within 10 days after the service of the last pleading directed to that issue 38(b)

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ii. Equitable claim – there is not jury trial right as to “equitable” claims. Important distinction

iii. Only if the suit is one that would or could have been a suit “at common law” in 1791 will there be a right to a jury trial

f. Beacon Theatres v. Westover (1959) – Both legal and equitable claims – If a case presents both legal and equitable claims, and one party wants a jury trial on the legal claims, the court must normally try the legal claims first. If the court allowed the equitable claims to be tried first, w/out a jury, this might effectively dispose of some of the legal issues as well, thwarting the party’s right to a jury trial

i. If the party asserting equitable claims would be irreparably harmed by having these claims delayed till after hearing of legal claims, the court can hear the equitable claims first

ii. Historically equitable claims come first, but the constitution always comes firstiii. Dairy Queen p.1010 – requires any legal issues for which a trial by jury is timely

and properly demanded be submitted to a jury1. The const. right to trial by jury cannot be made to depend upon the

choice of words used in the pleadings2. The claim can only be equitable only if no adequate legal remedy was

availableiv. Ross p.1013 – the legal nature of an issue is determined by considering, 1st, the

pre-merger custom with reference to such questions, 2nd, the remedy sought, 3rd the practical abilities and limitations of juries

g. Complicationsi. Modern statutes – often provide remedies that are different from common law

remedies available for a similar wrong in 17911. Curtis v. Loether (1974) – The Seventh Amendment of the United States

Constitution (Constitution) does apply to actions enforcing statutory rights and requires a jury trial upon demand if the statute creates legal rights and remedies enforceable in an action for damages in the ordinary courts of law.

a. When congress provides for enforcement of statutory rights in an ordinary civil action in the District courts, where there is obviously no functional justification for denying the jury trial right, a jury trial must be available if the action involves rights and remedies typically enforced in an action at law.

h. Tull p.1020 – characterizing the relief sought is more important than finding a precisely analogous common law action in determining whether the 7th A guarantees a jury trial

i. Granfinanciera p.1023 – i. Private rights -

ii. Public rights – where the Gov’t is involved in its sovereign capacity under an otherwise valid statute creating enforceable public rights

j. Distinguishing legal v. equitable claims – the issue is whether the claim is a claim “at common law.” Is the claim one which the courts of law (as opposed to equity) would have recognized prior to the 1791adoption of the 7th A

i. Distinct issues – no problem trying equitable claims to a judgeii. 2 part test

1. The court must compare statutory action to the actions available in the courts of England in 1791. If the most similar action available then was legal, that a factor in favor of the modern action’s being legal

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2. The court examines the remedy sought, and determines whether it would have been considered legal or equitable in nature in 1791 (most important)

iii. Examples1. Damages – money damages always legal (exception: restitution)

a. Chauffeurs v. Terry (1990) p.1026 – Even though the action was in a sense for “backpay” (equitable, restitution) the P’s were not seeking money wrongfully kept by the union. Therefore, a claim for compensatory damages will always be legal

i. Restitution damages are equitableii. Claims based on the duty of fair representation are legal

in nature. iii. Brennan (concur) – get rid of the first part of the Tull test

2. Injunctions are equitable3. Declaratory judgment – both depending on the underlying issues

k. Markman v. Westview Instruments, Inc. – Sometimes the 2 part Tull test won’t give a clear answer. Sometimes the court will consider the “relative interpretive skills of judges and juries.” In this case “judges are the better decisionmakers when the construction of written instruments is at issue” (no right of jury trial as to the written-instrument-dependent question. Limited its holding to patent claims)

i.  In some cases where it is unclear as to whether a judge or jury should decide upon terms of art in a case that is traditionally decided by a jury, judges, because of their experience may be more capable to define the terms.

ii. Could be expanded to other written documents, but has not yet2. FRCP 38 – Right to a trial jury; Demand3. FRCP 39 – Trial by jury or by court4. Jurors – traditionally 12 members, but this is changing

a. Federal – 7th A does not require 12-member juries. Rule 48 provides a jury of at least 6 members

i. Too few remaining – normally the Federal court seats more than 6 jurors, so that if some have to leave the panel there will be at least 6 at the time of verdict. If there are fewer than six at the time of verdict, the court must declare a mistrial unless both parties agree to continue

b. State – varies5. Unanimity

a. Federal – Rule 48(b) verdict must be unanimous, unless the parties stipulate otherwise b. States – most allow a less-than-unanimous, unless the parties stipulate otherwise

6. Jury selection – Rule 47 called “voir dire.” In most states this consists of oral questions by both sides’ counsel to prospective jurors. These questions are designed to discover whether a juror would be biased, or has connections with a party or prospective witness

a. 47(c) Dismissal for cause – any juror who is shown through voir dire to be biased or connected to the case must be dismissed upon motion by party (dismissal for cause). There is no limit to the number of for-cause challenges by either party

b. Peremptory challenges – 47(b) Challenges without cause – each party may dismiss a certain number of jurors without showing cause

i. Federal – each party receives 3 peremptory challenges 26 U.S.C § 1870c. Balanced pool - must be representative of the overall communityd. Alternates – Most states, the court orders the selection of up to 6 alt. after the “regular”

members of the jury have been selected. Fed – alts. no longer used.i. Fed – 48(a) no alternates – “each juror must participate in the verdict”

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e. Flowers v. Flowers – Bias, are bases for the disqualification of a juror. However, to disqualify, it must appear that the state of mind of the juror leads to the natural inference that they will not or did not act with impartiality.

f. Edmonson v. Leesville p.1056 – race cannot be a basis for a peremptory challenge. i. “racial discrimination within the courtroom raises serious questions as to the

fairness of the proceedings conducted there.”7. Instructions – the judge must instruct the jury as to the relevant law.

a. Objections – a party who wants to raise the inadequacy of the instructions on appeal must object to those instructions before the jury retires.

i. 51(d)(2) - Exception for “plain error,” even with no timely objectionb. Judges have the right to comment on the quality and weight of evidence – Fed, and some

statesi. Nunley p.1100 - cannot be an opinion on ultimate fact that belongs to a jury

c. 51(b)(1) – the court must inform the parties of its proposed instructions and proposed action on the requests before instructing the jury and before final jury arguments

d. 51(a)(1) – at close of evidence, any party may file “written requests for the jury instructions it wants the court to give”

e. 51(d) – a party may assign as errori. (A) an err in an instruction

ii. (B) failure to give instructionf. Kennedy v. SCE p.1096 - Where an instruction would be beneficial to the jury's proper

determination of the case, the court may not merely refuse a requested instruction, but instead has a duty to frame the instruction properly and give it to the jury.

i. Harmless error – 1. an error in instructions relating to the parties burdens of proof ordinarily

requires reversal2. Wirtz – both parties have a duty to ensure that important instruction are

phrased properly, not just the party who would be injured if the improper instruction where to be given

g. SEC v. Koenig p.1103 - A judge may allow a jury to ask questions during a trial. Entirely up to the judge

i. No early juror discussionii. Ordinarily jurors not allowed to take notes – but is allowed, even encouraged in

some jurisdictionsiii. Some concern about jurors making up their minds before the end of the trial

8. Verdicta. Rule 52 – Findings and conclusions by the Court; Judgment on Partial findings

i. (a)(1) – the court must find the facts specially and state its conclusions of law separately

ii. (b) – 28 days to file for amendment to findings of factb. General verdict – grants victory to one side or the otherc. Special verdict – a special verdict is a specific finding of fact

i. Requires a jury to answer a series of Q’s regarding each facet of the case but not to enter a verdict stating who wins

d. 49(a) – allows a court to order a special verdict “in the form of a special written finding on each issue of fact.” Not used often, except on the state level

i. If the judge fails to submit a question on a specific issue of fact when he gives his list of special verdict Q’s to the jury the parties waive their right to a jury trial on that issue if they do not object before the jury retires 49(a)

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e. General verdict w/interrogatories – the judge may, instead of requiring a special verdict, require a general verdict supported by interrogatories as to specific findings of fact 49(b)

i. Where consistent w/ verdict – if these facts are consistent with the verdict, the verdict is entered

ii. Where inconsistent w/ verdict– if the findings of fact are inconsistent with the verdict, the judge may either enter a judgment consistent with the interrogatory answers, ignoring the jury’s verdict, or he may order a new trial

iii. Where the answers are inconsistent w/ each other – Return to jury, the judge must send the case back to the jury for further deliberation

f. Nollenberger v. United Air p.1111 - When special interrogatories are inconsistent with the general verdict, the special interrogatories control.

i. The court cannot submit additional interrogatories after the jury has returned its verdict having answered the special interrogatories and at the same time the general verdict.

ii. If there is any way to uphold the General verdict, do so9. Juror misconduct – a jury verdict may be set aside, and a new trial ordered, for certain types

of misconduct. (talking to a party, receiving a bribe, concealing a bias on voir dire)a. Traditional impeachment rule – followed in most states, jury may not impeach its own

verdict (i.e. the verdict will not be set aside because of a juror’s testimony of his own or another juror’s misconduct – only evidence from a third party will suffice

i. Fed rule – except that a juror may testify about whether extraneous prejudicial information was improperly brought to the juror’s attention, or whether outside influence was improperly brought to bear upon a juror

b. Post-trial discovery of bias – if it turns out that a juror failed to disclose information during voir dire that would have indicated bias the party may move for a new trial. In federal trials the movant must show

i. That the juror failed to answer honestly a material question during voir dire and,ii. That a correct response would have led to a valid challenge for cause

10. Burden of Proofa. Burden of production – It can mean that unless he produces some evidence that A exists

the judge must direct the jury to find that A does not exist. The party in such a situation bears the “burden of production”

b. Burden of persuasion – if at the close of the evidence, the jury cannot decide whether A exists or not, it must find that A does not exist. Party seeking to prove A bears burden of persuasion

c. Allocation of burdeni. Who has the better access to the fact in question

ii. Who is alleging something that “departs from what would be expected in the light of ordinary human experience”

iii. Both burdens not always on the same party, it can shiftiv. A party has met his burden on production if

1. He has given enough evidence to send that issue to the jury.v. Met burden of persuasion if

1. Preponderance of the evidence – Produced enough evidence to lead the jury “to believe that the existence of [A] is more probable than its non-existence.” More likely than not

d. Reeves v. Sanderson p.1085 - A prima facie case of discrimination, combined with sufficient evidence for the trier of fact to disbelieve an employer's legitimate, nondiscriminatory reason for its decision, may be sufficient as a matter of law to sustain a jury's finding of intentional discrimination.

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i. The factfinder’s rejection of the employer’s legitimate, nondiscriminatory reason for its action does not compel judgment for the plaintiff.

ii. It is permissible for the trier of fact to infer the ultimate fact of discrimination from the falsity of the employer’s evaluation

iii. Although the court should review the record as a whole, it must disregard all evidence favorable to the moving party that the jury is not required to believe

e. Directed Verdict/Judgment as a matter of law Rule 50i. In state and federal court, either party may move for a directed verdict. This takes

the case away from the jury and determines the outcome as a matter of law1. Fed – A party may move for “judgment as a matter of law” after the

other party “has been fully heard on an issue” 50(a)(1) usually at the close of the P’s case, either party may move for directed verdict after both sides have rested

ii. Standard for DV1. 50(a)(1) If a party has been fully heard on an issue and the court finds

that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue the court may

a. Resolve the issue against the partyb. Grant a motion for JML against a party on a claim or defense

that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue

2. Some courts have distinguished between the amount of evidence needed to direct a verdict against the party bearing the burden of persuasion, and that needed to direct a verdict in favor of that party

a. Stronger showing where burden against movant3. Denman v. Spain p.1076 – A finding of judgment notwithstanding the

verdict is correct in cases where the original jury verdict is based on speculative facts.

a. Verdicts cannot be based on possibilities4. Rogers v. Missouri p.1081 - When the probative facts of a case could

support a verdict for either litigant, a jury must hear the case.iii. Galloway p.1071 -  Directed verdicts do not deprive litigants of their Seventh

Amendment constitutional right to a jury trial.f. Judgment notwithstanding Verdict (JNOV)

i. JNOV – Judges may reserve judgment on a DV motion, then if the jury decides against the movant the judge may evaluate the legal sufficiency of the evidence on a JNOV motion. This results in the entry of a judgment for the party who lost the verdict; it is a finding that the verdict had no sufficient legal basis

ii. Rule 50 – JNOV no longer exists. After jury verdict still a JML1. Practice unchanged. The party seeking JNOV must make a motion for

that judgment before the case is submitted to a jury, must specify the judgment sought and the law and facts that entitle the movant to judgment 50(a)(2). If verdict is against the movant, the movant renews the motion.

iii. Usually entered on a claim, but JNOV/JML may be entered on a defense as welliv. If JML granted, the court must also conditionally rule on any motion for a new

trial 50(c)1. If the JML order is reversed on appeal, and the trial judge has

conditionally granted the new trial motion, the new trial occurs automatically, unless appellate court denies 50(c)(2)

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2. If the trial judge conditionally denies the new trial motion, the original verdict is reinstated when JML is overturned on appeal

3. Four possible outcomes:a. Both motions denied – appeals court may order either JML or a

new trialb. JML granted, new trial denied – verdict winner may appealc. JML granted, new trial granted – verdict winner may appeal,

JML is reversible, if JML reversed, the judge’s new trial order almost always controls

d. JML denied, new trial granted – no appeal until new trial completed

11. Trials w/out a Jurya. 2 conditions to be tried w/out jury

i. No right to a trial, orii. All parties have waived the right to a jury trial

b. Trial judge the serves as both the finder of fact and decider of lawc. Rules of evidence are officially the same in non-jury trials as in jury trials. In practice

judges tend to relax the rules more when there is no jury present which could be prejudiced by the admission of evidence of dubious reliability

d. Findings of fact – Rule 52 requires the trial court to “find the facts specially and to state its conclusions of law separately.”

i. Roberts v. Ross – trial judge should prepare his own findings of fact and conclusions of law

1. Judge is responsible for the document he signs2. The findings of fact and conclusions of law must be sufficient to indicate

the bases of the trial judge’s decision3. Leighton p. 1119 –three purposes for Rule 52(a) for a non-jury trial,

a. To aid the appellate court by affording it a clear understanding of the ground of the basis of the decision of the trial court

b. To make definite just what is decided by the case to enable the application of res judicata and estoppel principles to subsequent decisions

c. To evoke care on the part of the trial judge in ascertaining the facts. (most important)

e. Where separate findings required – separate findings of fact and conclusions of law also required where:

i. Requests for interlocutory injunctions are made, whether they are granted or denied; and

ii. “Judgment on partial findings” is given 52(c). If at the end of the P’s case the judge believes P has not carried his burden of proof, the judge may throw out P’s case w/out hearing defendant’s case

f. Separate findings not required on motions 52(a)(3)i. Motion for summary judgment and 12(b)(6) included

ii. except one under 52(c)g. Judgment on partial findings

i. If one issue is pivotal to the entire case (ex. statute of limitations) the judge may hold a “mini-trial” on that issue. If the judge then finds against the party bearing the burden of proof, the judge issues a judgment on partial findings – 52(c)

h. Appellate review findings of fact – appellate court will generally accept the trial judge’s findings of fact against which to review the findings of law. Trial judge’s findings of fact only set aside if found to be “clearly erroneous” 52(a)

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i. Test – clearly erroneous when “although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” US Gypsum Co

ii. 52(a) Witness credibility – appellate court gives “due regard … to the opportunity of the trial judge to judge the credibility of the witnesses. Appellate courts are particularly loath to overturn trial judge’s finding of facts regarding such testimony

1. Trial judge could judge witnesses’ credibility through observation of their demeanor at trial

2. Standard – “When a trial judge’s finding is based on his decision to credit the testimony of one of two or more witnesses, each of whom has told a coherent and facially plausible story that is not contradicted by extrinsic evidence, that finding, if not internally inconsistent, can virtually never be clear error.” Anderson v. Bessemer City

a. Exception – witness story internally inconsistent, or contradicted by documents or objective evidence

iii. Documentary evidence and inferences from undisputed facts – Anderson v. Bessemer, even where the federal district court’s findings do not rest on credibility determinations, but are based instead on physical or documentary evidence or inferences from other facts, the appeals court may not make a de novo review of the evidence. Clearly erroneous applies.

1. 52(a) – findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous

iv. Clearly erroneous rule does not apply to conclusions of lawv. Mixed fact and law

1. If the trial court’s finding of fact derives from a correct rule of law, the clearly erroneous rule applies to the finding of fact

2. If the trial court’s judgment of the facts derives from an incorrect rule of law, that finding must be reversed or remanded for new determination. The finding of fact will not be judged by clearly erroneous standard, but instead be presumed incorrect

12. New Trial Rules 59 & 61a. Trial courts in both state and Fed generally have wide discretion to grant a motion for a

new trial, runs less risk of abridging the 7th amendment than does DV or JNOVb. Fed – different standards for new trials in jury and non-jury cases

i. 59(a)(1) Grounds – where there has been a jury trial, the judge may order a new trial “for any reason for which a new trial has [before 1938] been granted in an action at law” in federal court

ii. 59(a)(2) – new non-jury trial – where the action was tried w/out a jury, a new trial may be granted for any of the reasons an equity court would have granted a rehearing

1. Judges usually err on the side of admitting too much evidence. Lowers risk of reversal. If too much evidence is excluded higher probability of reversal

iii. 59(c) – when a motion for new trial is based on affidavits, they must be filed w/the motion. Opposing party 14 days to respond

iv. 59(d) – after notice and opportunity to be heard, the court may grant a timely motion for a new trial for a reason not stated in the motion. Either way the court must specify the reasons in its order

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v. Rule 61 – Harmless error – At every stage of the proceeding, the court must disregard all errors and defects that do not affect any party’s substantial rights.

vi. Magnani v. Trogi p.1122 – The trial judge is allowed broad discretion in granting new trials. Thiss allows the trial judge to correct errors that he or the jury might have made during the course of the trial. Courts of review will not disturb the decision of a trial court on a motion for a new trial unless clear abuse of discretion is affirmatively shown.

vii. Robb v. Hickey - Where the verdict is uncertain or ambiguous, the court will not substitute its verdict in place of it, and a new trial should be granted.

1. The court may mold an informal verdict to render it formal in order that it may coincide with the substance of the verdict as intended by the jury, but the intent of the jury must clearly and convincingly appear in the verdict.

viii. Timely objection required for most types of error at the trial level, in order to preserve the right to cite that error on appeal as a ground for a new trial (does not apply to plain error)

ix. Common reasons for a new trial1. Judicial error

a. Especially common in jury trials, where the judge believes that his errors have tainted the jury’s verdict

2. Prejudicial conduct by a party, witness, or counsela. Substantial risk of an unfair verdict

3. Juror misconducta. Evidence 606(b)(1) – juror may testify as to

i. Whether extraneous prejudicial info was improperly brought to the juries attention

ii. Whether any outside influence was improperly brought to bear upon any juror

iii. Whether there was a mistake in entering the verdict onto the verdict form

4. Verdict against the weight of evidencea. Minority – unlimited judicial discretionb. Minority – extremely strictc. Duk v. MGM - Where a jury is still available, a court's decision

to resubmit an inconsistent verdict for clarification is within its discretion.

i. Best for judicial economyii. Don’t want a compromise or quotient verdict, but these

kinds of verdicts can be thrown outd. Aetna v. Surety – Fed standard – middle – against clear weight

of the evidence, false evidence, even though there may be substantial evidence which would prevent the direction of the verdict.

i. Judge must not substitute his own judgment, it is not enough that the judge merely disagrees with the verdict, and would vote otherwise if he were a juror

ii. A federal trial judge may, in his sole discretion, set aside a jury verdict and grant a new trial where he finds the verdict is

1. contrary to the clear weight of the evidence, or

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2. based on false evidence.5. Excessive or inadequate verdict

a. Damages fixed by law and verdict excessive by law or inadequate by law

b. Where damages set by jury discretion a judge is more hesitant to set aside, but still may if completely out of line

c. Inadequate – Damages not fixed by law, court may set asidex. Remittitur and Additur

1. A judge may find the jury’s verdict excessive or inadequate, but may wish to avoid a new trial. Especially where liability is correct, but damages calculated wrong.

2. Conditional new trial, new trial to occur unless the P agrees to a reduction of the damages to a specified amount (remitter), or (damages inadequate), the new trial to occur unless the defendant consents to raising the damages (additur). It must be consensual.

3. Fisch v. Manger p.1144 - Trial judges may grant additurs and remittiturs when substantial justice in the original trial may be achieved instead of having to grant a new trial.

a. Remittitur and additur serve the laudable purpose of avoiding a further trial where substantial justice may be attained on the basis of the original trial.

4. Fed – remittitur is firmly established. SCOTUS in Dimick v. Schiedt found additur unconstitutional

a. Some states do allow additur5. Calculate additur or remittitur

a. Powers v. Allstate p.1147 – what a reasonable jury could findb. Remittitur test – reduce the verdict only to the highest amount

the jury could properly could have awarded6. Remittitur not appealable Donovan v. Penn Shipping

xi. Partial new trial – may grant a new trial on specific issues1. Doutre v. Niec p. 1149 – The questions of liability and damages are so

closely intertwined that they may not usually be separated, so that if a new trial is required on the issue of liability, the issue of damages must also be retried.

a. In cases where liability is clear, the damages issues alone may be submitted for re-trial. Otherwise, both must be resubmitted.

b. Damages flow from and follow liabilityxii. Timeliness of requests for a New Trial

1. Unitherm p.1150 – If you don’t make a timely motion, then you lose out2. Hulson p.1151 – Ignorance of the rules resulting in an agreement for

unauthorized extension of time cannot serve to furnish grounds for reliefxiii. New trial for mistake

1. Clerical Mistakea. 60(a) May correct a clerical mistake before an appeal has been

docketed in the appellate court and while it is pending, unless the appellate court gives leave (District court has lost jurisdiction)

b. 60(b) may be relieved fori. Mistake, excusable neglect

ii. Newly discovered evidenceiii. Fraud iv. Judgment is void

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v. Judgment has been satisfiedvi. Any other reason that justifies relief

c. 60(c) No more than a year after, does not affect finality of judgment

d. 60(d) doesn’t limit courts power toi. Entertain an independent action to relieve a party from a

judgment, order, or proceedingii. Grant relief under 25 USC § 1655 to a defendant who

was not personally notified of the actioniii. Set aside a judgment for fraud on the court

2. Briones v. Riviera Hotel and Casino p.1152a. Excusable neglect is understood to encompass situations in

which the failure to comply with a filing deadline is attributable to negligence

b. Four factors to be considered whether neglect is excusable in bankruptcy cases

i. The danger of prejudice to the opposing partyii. The length of delay and its potential impact on judicial

proceedingsiii. The reason for delayiv. Whether the moving party acted in good faith

xiv. New trial for newly discovered evidence1. Patrick v. Sedwick – p.1154

a. Probably change the result of the trialb. New discovery – must have been clearly discovered since the

end of the trial;c. Diligence – movant must demonstrate that he was “reasonably

diligent” in his search for evidence prior to and during trial, and that he could not reasonably have found the evidence in question before the trial’s end;

d. Materiality – the evidence be material, e. Must not be merely cumulative or impeachingf. Must relate to facts which were in existence at the time of the

trial2. Injustice – as a practical matter the motion is usually denied unless the

trial judge has an abiding feeling that injustice has plainly resulteda. Marcelli v. Walker p.1157 – Independent actions for relief under

60(b) are reserved for those cases of injustice that, in certain instances, are deemed sufficiently gross to demand a departure from rigid adherence to the doctrine of res judicata. The elements of an independent cause of action are

i. A judgment that should not in equity and good conscience to be enforced,

ii. A good defense to the alleged cause of action on which the judgment was based,

iii. Fraud, accident, or mistake, iv. The absence of fault or negligence on the part of the

party seeking refuge in the rule, and v. The absence of remedy at law.

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xv. Appealability of new trial order – Fed - not appealable, because it is not a final judgment. After final judgment the new trial may be raised as an issue, so it is reviewable

Securing and Enforcing Judgments1. Rule 65 Injuctions and Restraining orders

a. 65(a) Preliminary Injunctioni. Issued by the court to protect P from irreparable injury and to preserve the court’s

power to render a meaningful decision after a trial on the merits1. Granted before trial – often the same effect as relief for P2. Only on notice to D, in the most necessary of circumstances

ii. Test1. P must establish that he is likely to succeed on the merits2. P is likely to suffer irreparable harm3. Balance of equities tips in P’s favor4. Injunction is in the public interest

b. 65(b) Temporary Restraining Orderi. TRO issued ex parte, appropriate only when the threat of irreparable injury is

immediate and the need to preserve the status quo is urgentii. Standard is higher

iii. Sought when an application for a restraining order is sought when time considerations do not permit the giving of formal notice

1. Person might destroy, or change the circumstances because of notice2. FRCP 66 Recievership p.1169

Appellate Review1. Finality

a. 28 U.S.C § 1291 – appeals courts have jurisdiction of appeals from all final decisions of the district courts

i. Except direct review from SCOTUSb. 28U.S.C. § 1292 – Interlocutory appeals

i. Appeals from injunctionsii. Appeals of appointed recievers

iii. Appeals of admiralty casesiv. (b) discretionary appeal, there must be a controlling question of law as to which

there is a substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation

v. Ten days after entry of the ordervi. This does not act as an automatic stay

c. Liberty Mutual v. Wetzel – i. 54(b) – is for multiple claims. A claim is different from relief sought

ii. A motion for Partial Summary Judgment is by definition interlocutoryiii. 56(d)(2) – permits the court to gran SJ on the issue of liability alone, where a

genuine issue concerning damages remains. This type of partial summary judgment is interlocutory in nature and not immediately appealable

iv. The granting of partial summary judgment is not appealable under 28 U.S.C. § 1291. § 1291 only allows appeals from "final judgments." A final judgment is just that-final. There is nothing more to do. Here, liability was established, but no relief was yet given. The court's action was thus an interlocutory order, which

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would have to be appealed under 28 U.S.C. § 1292, for which the procedural requisites were not met here.

d. Atlantic City v. GE p.1216 - Pretrial appeals pose problems as to the feasibility of deciding certain questions of law in advance of trial. Such appeals are within the discretion of the appellate court and are not automatically granted. They are viewed against the backdrop of the entire case. In the present case, D request for pretrial discovery may extend the length of already extensive pretrial proceedings. In the event they lose, D will have an opportunity to correct the district court ruling on appeal. Meanwhile, it is not precluded from its "passing on" defense by denial of this pretrial appeal.

Ascertaining the Applicable LawNature of the Problem

1. A particular controversy that is litigable in federal court may also in most situations be brought in state court. Which law – Fed or state – governs?

2. Forum shopping – Fed courts want to discourage forum shopping. To prevent forum shopping the courts generally apply state law in diversity cases

3. Rules of Decision Act (RDA) – 28 U.S.C. § 1652, based on the Supremacy Clause, is the main statute stating when the fed court should apply fed law, and when it should apply state law

a. RDA says that the fed courts must apply the “law of the several states except where the const. or … acts of Congress otherwise require…,”

b. Fed law – the Constitution, treaties, and constitutional statutes enacted by Congress always take precedence, where relevant, over all state provisions (this also applies to state court proceedings)

c. State statutes – in the absence of a fed const. or statutory provision on point the fed courts must follow state const. and statutes

d. Dispute about the common law – RDA is silent on what a fed court should do where there is no controlling const. or statutory provision, federal or state.

4. Swift v. Tyson (1842) held that fed judges could ignore state common law in diversity cases (except where state court opinions on real estate or other local immobile matters)

a. Courts used fed common law and state procedureb. This allowed non-citizens to discriminate against citizens of the state where the federal

court sat.c. Black and White Taxicab – Holmes’s Dissent – the common law of a state is as much a

creation of the state’s sovereign power as statutory law. Therefore Fed courts should be bound to follow state common law. To refuse to follow state law, insofar as this refusal permitted fed courts to exceed the powers granted to the fed gov’t, was an “unconstitutional assumption of powers by US courts.

5. Erie v. Tompkins – MOST IMPORTANT. a. Facts: P, PA citizen was injured while walking on the right of way maintained by D, NY

Railroad. Under PA common law, P would probably have lost his negligence case, because P was a trespasser, to whom D would be liable only for gross, not ordinary negligence. P instead sued in NY fed district Court, expecting the fed court to follow Swift and make its own fed common law which P hoped would make the railroad liable to him for ordinary negligence. Fed district court did this and found against the railroad.

b. Holding: SCOTUS – (Brandeis) Swift overruled. Swift allowed Fed courts to make law in areas not granted by const. The fed court must follow state common law on substantive issues, and that “state law” included common law as well as state statutes. So PA law on the railroad’s duty of care was to be followed (although the court did not specify why PA rather than NY law to be followed)

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i. New evidence showed RDA was intended by its authors to cover state common law

ii. Discrimination: Swift introduced grave discrimination by non-citizens against citizens (privileges and immunities clause), promoted forum shopping (rendered impossible the equal protection of the law)

iii. Congress has no power to declare substantive rules of common law applicable in a state. There is no general fed common law

c. Concurrance: Swift view erroneous, but not necessarily unconstitutional6. Erie Problems

a. Ascertaining state law: fed court must try to determine how the state’s highest court would determine the issue if the case arose before it today

i. Intermediate court decisions: if there is no holding by the highest state court the fed court considers intermediate court decisions. These will normally be followed, unless there are other reasons to believe that the state’s highest court would not allow them

ii. No state court has spoken: fed court can then look to other sources. 1. Decisions in prior fed diversity cases which have attempted to predict

and apply the law of the same state2. Look to the practice of other states

iii. State decision obsolete: where there is an old determination of state law by the highest state court, the fed court hearing the present case is always free to conclude that the state court would decide the issue differently if confronted w/ the present case Bernhardt v. Polygraphic

iv. Change to conform w/ new state decision: fed court must give effect to a new decision of the state’s highest court, even if the state court decision was handed down after the fed district court action was completed

b. Conflict of laws: fed court must follow state law governing conflict of laws where the federal court sits (Klaxon Co. v. Stentor)

i. Allstate v. Hague – a state can apply substantive law so long as the state had significant contacts or a significant aggregation of contacts w/ the parties and the transaction

c. Burden of Proof: fed court must also follow rules governing the allocation of burden of proof in force in the state the fed court is sitting Palmer v. Hoffman

d. Procedure/substance distinction: Erie says that state common law controls in “substantive matters.” Fed rules and policies control on matter that are essentially “procedural”

i. Fed Rules take precedence: Erie only applicable where there is no controlling fed statute. FRCP were adopted pursuant to congressional statute and thus take precedence over state policy

1. Does rule apply: the rules are construed narrowly, to cover just those situations that Congress intended them to cover. if the rule applies, then

2. Is Rule valid: a Rule must not “abridge, enlarge, or modify the substantive rights of any litigant.” As long as the rule is arguably “procedural,” it will be found to satisfy this test. No Fed Rule has ever been found to violate this test Hanna

3. Sibbach v. Wilson – P refused to undergo physical exam. As long as a rule is procedural it cannot affect substantive rights and could not violate the REA

ii. Guaranty Trust state statute of limitations1. Erie requires fed courts to obey state statute of limitations

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a. Outcome/Determinative Test: Does it significantly affect the result of a litigation for a federal court to disregard a law of a State that would be controlling in an action upon the same claim by the same parties in a State court?

i. If yes, then substantive2. Erie applies to equitable rights – In a diversity suit brought in equity, an

equitable right created by a law of the state whose laws govern the case must be followed by a federal district court if applying the federal law would significantly affect the outcome of the case.

iii. Gasperini – In a federal district court sitting under diversity jurisdiction, the standard the judge uses to determine whether a jury’s itemized verdict is excessive is that of state law, and is only subject to appellate review for “abuse of discretion.”

1. If the state law and the fed rule are the harmonious, follow the state ruleiv. Hanna v. Plumer – P serves suit on D’s wife according to FRCP 4(e)(1)

1. Removes FRCP entirely from the scope of Erie2. The outcome/determination test…cannot be read w/out reference to the

twin aims of the Erie rule: discouragement of forum-shopping and avoidance of inequitable administration of the laws

3. Only authorizes fed courts to disregard state procedural law and follow FRCP if there is a conflict between the two

a. If the rule at issue is procedural and the federal rule is on point with the state rule, then the Federal Rule must be applied as long as it complies with the Rules Enabling Act, 28 U.S.C. Section: 2071 and the U.S. Constitution. If there is no federal rule on point, then apply the Erie doctrine

b. Two step testi. Is the scope of the Fed rule sufficiently broad to cause a

direct collision w/ state lawii. Rule must be applied if it represents a valid exercise of

Congress’ rulemaking authorityv. Case not covered by Fed Rule: if the issue is not covered by anything in the

FRCP, but is nonetheless arguably “procedural”1. Byrd v. Blue Ridge – right to a jury trial

a. If federal policy is very strong, and the state policy is relatively weak, fed policy might outweigh state substantive policy.

b. Also, if the probability of the outcome/determination is weak fed policy might outweigh

c. If a requirement appears to be merely a form and mode of enforcing the immunity and not a rule intended to be bound up with the definition of the rights and obligations of the parties

d. State laws cannot alter the essential characteristic of USA soveriegnty

2. Balance state and fed policies: Today, fed court balances the state and fed policies.

a. Where the state interest in having its policy followed is fairly weak, and the fed interest strong, the court is likely to hold that the fed procedural policy should be followed Byrd

b. Judge/Jury allocation – fed policies are followed Byrdc. Unanimity for jury trials – fed policy requiring a unanimous jury

verdict will be applied in diversity suits

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d. Statute of limitationsi. Walker v. Armco - In diversity actions, Rule 3 governs

the date from which various timing requirements of the federal rules begin to run but does not affect state statutes of limitations.

1. Since there is no direct conflict between the Fed Rule and the state law, the Hanna analysis does not apply

2. Rule 3 – a civil action is commenced by filing a complaint with the court.

3. Otherwise it would promote forum-shoppingvi. Fed statute on point: Where there is a federal procedural statute (distinct from

federal rule) that is directly on point, it will control over any state law or policy, even though this may promote forum shopping

1. Stewart - By focusing on Alabama law, the District Court contravened Congressional intent by considering factors that defeat the purpose of § 1404(a).

a. Because the two statutes conflict with each other, the federal statute controls

b. In a diversity suit, federal rules, not state rules, should govern questions of venue.

c. Dissent – runs afoul of twin aims of Erie i. Discouragement of forum shopping

ii. Avoidance of inequitable administration of the laws2. Shady Grove – Plurality decision

a. We do not wade into Erie’s murky waters unless the fed rule is inapplicable or invalid

b. Majority: Federal Rule Trumps When:i. Conflict with State Law and the Federal Rule is

Applicable 1. Determine whether fed and state rule can be

reconciled2. If not, determine whether the fed rule runs afoul

of REAii. Fed. Rule is a rule of procedure

iii. Constitutional c. It is not the substantive or procedural nature or purpose of the

affected state law that matters, but the substantive or procedural nature of the fed rule

d. This takes us back to basics - Hannae. Dissent: Federal Rule should yield when:

i. Situation in which you know that the Federal Rule is going to work at cross-purposes with substantive state policy - State policy is executed

1. Prevents forum shopping 2. Prevents inequitable administration of the laws

e. Federal Common Lawi. Federal common still exists: still particular instances where fed common

law is still applied. Fed courts occasionally free to disregard state lawii. Fed Q cases – fed common law usually applies

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iii. Diversity cases – Occasionally fed common law may still be appliediv. Fed common law in state courts – sometimes the states are required to

apply fed common law. If concurrent jurisdiction (state and federal) exists concerning a particular claim, and the suit is brought in state court, fed common law applies there if it would apply in fed court

Preclusion – Res Judicata1. Claim preclusion – if a judgment is rendered for P, his claim is merged into the judgment – the

claim is extinguished and a new claim to enforce the judgment is createda. A valid and final judgment on the merits precludes further litigation by the parties or

those in privity with the party of the same claim and all other claims defenses and issues that could have been asserted as a cause of action – Wardle

b. If judgment is for D on the merits, the claim is extinguished and nothing new is created; P is barred from raising the claim again

c. Mathews v. NY Racing - The doctrine of Res Judicata operates as a bar to subsequent suits involving the same parties, or those in privity with them, based on a claim which has once reached a judgment on the merits.

i. A judgment against or in favor of an agent or employee may bind his principal or employer under the doctrine of respondeat superior; If judgment determines that the servant or agent was not culpable, his master or principal cannot be liable. This is true whether the actions are separate or whether the employer and employee are joined. Substantial identity of the parties is all that is required

ii. If the factual basis is the same the claim is the same2. No claim splitting: judgment is conclusive with respect to the entire claim that it adjudicates. If

P sues upon any portion of the claim, the other aspects of that claim are merged in her judgment if she wins, barred if she loses – “one suit per claim” (Merger)

a. Installment contracts – if the claim relates to payments due under a lease or installment contract, P must sue at the same time for all payments due at the time suit is filed

i. Jones v. Morris Plan Bank – car payments, monthly installments, remainder due upon missed payment (unconditional clause)

1. If a transaction is represented by a single and indivisible contract and the breach gives rise to a single cause of action, it cannot be split into distinct parts and separate actions.

a. Here, it was essential that the Bank institute an action for all of the installments due rather than institute its action for only two of the installments and later bring another action for others. The note and contract constituted one single contract.

2. If it is an optional clause – bank may call for payment immediately, but has the option to work something out (usual clause)

b. Personal and property damage from accident – most states hold that claims for personal injuries and property damages stemming from the same incident are part of the same cause of action

i. Rush v. City of Maple Heights - When injuries to both person and property resulting from the same wrongful act, a plaintiff may maintain only one lawsuit to enforce his rights existing at the time such action is commenced.

c. Multi-theory actions – no claim splitting even when P has several claims, all arising from the same set of facts, but involve different theories or remedies. Merger of P’s rights with respect to all or any part of the same transaction or series of transactions

i. Equitable/legal distinction – same claim if relate to same factsd. It is difficult to define the scope of a prior judgment in controversies involving

continuing or renewed conduct – evaluate

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i. whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, whether their treatment as a unit conforms to the parties expectations or business understanding or usage

e. Exceptions – if the court trying the first action would not have SMJ for a claim now asserted in the second action

i. Des Moines v. Iowa Homestead1. A party who fails to challenge federal court SMJ of an action, either in

the trial court or on appeal, is bound by the res judicata effect of the first action in subsequent suits based upon it.

a. Cannot be raised in a collateral attackb. Once it becomes a final judgment, it may not be raised

f. State law followed in diversity action 3. Adjudication on the merits – Not every loss by P in the first action will act as a bar to subsequent

suits on the same claim. P barred only if the original adjudication in favor of the defendant was on the merits

a. Non-prejudicial grounds – if brought in fed courts not barred if 41(b)i. Lack of jurisdiction

ii. Improper venueiii. Failure to join indispensable party

b. What does “a final adjudication on the merits” mean?i. Directed verdict, summary judgment, trial verdict

ii. What about a dismissal based on a 12(b)(6) motion grant (failure to state a claim for relief). In most cases this is granted with a leave to replead. At some point the judge grants the 12(b)(6).

1. A dismissal followed by a 12(b)(6) grant does lead to claim preclusion 4. Counterclaims – a D who pleads a counter claim is a P with respect to that claim - No splitting

a. Mitchell – A defendant may not split his cause of action against a plaintiff using part of it as a defense to the first action and saving the remainder for a separate affirmative suit.

i. P is not allowed to use the same defense first as a shield and then a swordii. May precluded later if it is a permissive rather than a compulsory counter claim

5. Change of law doesn’t prevent preclusionCollateral Estoppel/Issue Preclusion

1. Identifies issues that were litigated in the first action and says you cannot re-litigate them in the second action.

a. A valid and final judgment on the merits precludes re-litigation of the same issue that was actually litigated, determined by the court, and essential to the judgment - Wardle

i. Cromwell v. County of Sac1. where res judicata (merger, bar) is precluded because a case involves a

new claim (cause of action), the first judgment will still operate as an estoppel to all matters

a. actually litigated in the prior action and b. essential to its determination.

2. Corollarya. Only preclusion as to issues that were actually decidedb. If an issue was not essential to the determination it is not

precludedc. When a case is decided on more than one ground, all grounds are

precludedb. Causes of Action are Different. You don’t get to collateral estoppel if Res Judicata

applies. You’re looking at whether an issue in the context of the first action should or

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should not be re-litigated in a different context, in the context of a different cause of action. Because you’re a little bit worried that there has been a contextual shift.

i. Issue v. Claim – claim preclusion applies only where the cause of action or claim in the second action is the same as the first action, collateral estoppel applies as long as any issue is the same, even though the causes of action are different

ii. Suit not prevented – CP prevents a 2nd suit altogether, CE does not prevent a suit, but merely compels a court to make the same findings of fact on the same issue

c. If the prior decision is ambiguous on what it actually decided, doubts should be resolved against the party seeking preclusion

d. Prerequisites i. Issue in action 1 must be the same issue in action2

1. Issue must be essential for judgment2. Look out for variations in standard3. Shifts in the burden of persuasion

ii. Russell v. Place - The question estopped must have been actually litigated and essential to the judgment (i.e., part of the holding or rationale supporting it),

1. This must be provable from the record or extrinsic evidence for the principle of collateral estoppel to apply.

2. An "essential" question is one the determination of which played a necessary role in the outcome (holding, judgment) of the case.

3. The burden of proof is on the party seeking estoppel to prove that a question qualifies both as "actually litigated" and as an "essential question."

iii. Rios v. Davis - It is the judgment and not the conclusions of fact filed by a trial court that constitutes estoppel.

1. A finding of fact by a jury or court, which does not become the basis or one of the grounds of the final judgment, is not conclusive against either party to the suit.

iv. IRS v. Sunnen - Where two cases involve income taxes in different taxable years, collateral estoppel must be confined to situations where the matter raised in the second suit is identical in all respects with that decided in the first proceeding and where the controlling facts and applicable legal rules remain unchanged

2. Persons Bound Who Weren’t Part of the First Suita. Generally only actual parties to the 1st action can be bound by the finding on the issue

a. A non-party who has not had their day in court is not bound by the first action. That’s due process.

b. Exceptionsi. Privity between the non-party and a party to the first action

ii. Non-party agrees to be bound iii. Non-party assumed control over the law suitiv. Non-party engaged in some sort of a collusive act with one of the partiesv. Statutory scheme

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