civ pro cases & issues

8/8/2019 Civ Pro Cases & Issues

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precedent are new to the Supreme Court. A majority of statesrecognize the Conley formulation as their state standard, andthe nations civil procedure texts are founded on it. If Ruleswhich are so clearly statedneed to be changed, thenCongresswhich established the system for making theRules, invested them with power, and set forth a system for

revisionshould be the entity to change them, not the Court. Admittedly some strike suits would be brought forth just to

get settlement money; this is unfortunate, and bad and unfairfor corporations. Yet it is not as though no barriers exist forsuch suits. Discovery is costly for the defendant as well as theplaintiffand in this case the defendants, billion-dollarcorporations, can probably shoulder the financial burden ofdiscovery (insignificant considering their already-incurredlegal and other fees, anyway) better than plaintiffs. Thedefendants in antitrust cases hold most of the potential proofof wrongdoing in their own hands. How can plaintiffs setforth greater detail in pleadings without some discovery? Onecould argue that the opposite logic should be employed in

antitrust cases: an even lesser standard of factual presentationshould be required at pleadings. At least allow some limited,directed discovery. This would give plaintiffs a chance to dodepositions and would not be unduly burdensome ondefendants. Dont throw out baby with bathwater up front atpleading. A variety of Rules/tools (12, 7, 11, 16) exist for thetrial court to manage cases on a case-by-case basis.

Ps couldnt include allegation of illegal agreement, ethicallyand under Rule 11, if they didnt have evidence for it (eventhough this might have got their case past pleading). But ifdefendant controls this info, how can they get there?Dangerously close to saying: if no smoking gun at pleading,no chance to get it in discovery (have to have won case beforestarting)

Also, no need to ramp up 12b6 b/c we have Rule 11 as guard

(Pleading too muchsaying agreements inferable fromparallel conduct, rather than just alleging agreementslikeAmerican Nurses? Yet underTwombly, even if allegingexplicit conspiratorial agreements, would still have to allegemore facts to support)

(Grant leave to amend or reply instead of 12b6?)

Complaint Pleading in thealternative

McCor-

mick 8d2 Pleading of alternative theories is legal/appropriate in certain

cases. This case is one of them

Allowing facts to be hashed out during trial; no need to havefirm grasp at pleading.

At odds with Twombly? This case recognizes that facts cantalways be known up front, whereas Twombly requires morefacts known at pleading.

-Answer

-Evidenceat Trial

-Damages

-Presentingevidence tojury showingcircumstancearoundliability eventhough D

Fuentes Proof confined to disputed issues in case. This is part of thepurpose of pleading: to pinpoint what needs to be hashed out.Presenting evidence redundant to admittance is inefficient andwastefulonly permissible when damages depend oncircumstance

Evidence around admitted/undisputed facts in cases where


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admittedliability (so asto influencedamages)

(-presenting

evidencearoundundisputedfacts)

admittance was clear and unconditional, and where damagesare calculated by formula unrelated to circumstance, cannotbe presented (as here)

Protects against judging more harshly against more grosslynegligent defendants.

Presentation permitted when evidence is legally

relevant/material to the issue of damages; or when admissionis ambiguous or limited, done when party seeks to depriveplaintiff of force and effect of evidence

Trial court erred in allowing evidencebut result wasreasonable, so it stands.

Concurrence: Evidenceshouldbe presented: greaternegligence should yield greater damageswhich it likelywould, practically speakingnevermind formulas supposedto be followed

Answer Addressingspecificallegations ofcomplaint

(particularity)vs. categoricalanswers

Zielinski 8b

8d

(11)

Answers must precisely address specific allegations, admittingor denying each component.

Improper and ineffective answers are reported to jury as

admission of agency after a certain time for amendment

expires.

Doctrine of equitable estoppel applied to prevent a party fromtaking advantage of the statute of limitations where theplaintiff has been misled by that part.

Court thought plaintiff would have interpreted PPIs answeras denying the negligence rather than the fact that Johnsonworked for them

Prevent parties from taking advantage of confusion or errors,occurring before pleading, which they know will result inplaintiff being misled.

In general, harsh applications of 8b avoided, so 8d applied

sparingly. However, if departures from 8b mislead adversary,

then may be treated as admissions. (Do research before pleadingdont be sloppy)

Answer /Motion toDismiss

AffirmativedefenseIn 1983 suit,requirementthat P mustallege badfaith incompliant inorder to state aclaim; or mustD plead goodfaith asaffirmativedefense?

Gomez 8c

12b6 Qualified immunity is an affirmative defense, so under 8c the

defendant has the burden of pleading it in answer. (Is thisprecedent or was it just dicta?)

Nothing in 1983 suggests that a plaintiff must allege bad faithin stating a claim. Only 2 requirements, both satisfied here: (a)some federal right deprived; (b) person acted under color oflaw

QI irrelevant to cause of action; it is a defense. So 8(c) putsburden of pleading on defendant.

P cant anticipate what defense will be. D may not even claimQIhow is P to know?

-Answer

-Relieffrom(erroneous)judgment

AffirmativedefenseRetroactivelyraising Statueof Limitationsto limitliability after

Ingraham 8c

60b Defining affirmative defense: 8c: any other matter

constituting an avoidance Clark: likely to take theopposite party by surprise. Defendant shouldnt be allowedto ambush plaintiffeverything should be out in the open forpreparations.

Was it intrinsic to plaintiffs complaint? (then no need to


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judgment hasbeen passedfor damagesabove thelimitrequired to

raise asaffirmativedefense atpleading?

reassert) Who had better access to evidence? (if defendant,then need to plead) Policy favoring one side?

8c requires pleading affirmative defenses in answer oramendment. Even OK at trial if not resulting in unfairness b/cplaintiffs can still respond/change strategy.

Here, citing Act to limit damages is an avoidance as in 8c.

Referring to Blacks definition, it shows why cause should nothave its ordinary legal effect. Had plaintiffs known, theywould have tried case differently, not under ordinary tortmalpracticewould have emphasized future expenses relatingto injury (incl. psychological care). Plaintiffs ambushed, then,to some extent.

So, from 8c, if not pleaded timely, waived

(No expressio unius in 8c b/c wording is including and

other things)

Amend-ment

Standard foran amendedpleadingrelating back

vis--visstatute oflimitations

Barcume 15c Rule 15c: If amendment arises out of same conduct,

transaction or occurrence, it relates back. Allows forcorrecting technical deficiencies; expanding/modifying asthings found out/changed during procedure. Efficient. Greaterparticularity and detail of original relates back

If amendment is based in substantially different facts(conduct, etc.) it does notrelat back. Prevents other party fromgetting blindsided. If new claim rests on different facts, doesnotrelate back

If new legal theory, it depends

Ps reason that in discovery, defendant should have found outthat harassment, hostile environment were therethat theyknew, so no prejudice in discovery. But not just aboutknowledge; about legal preparation and anticipation for onesdefense. Cant dictate what defendantshouldhave known.

Court says so what?in line with doctrine of repose.Whydo we have a statute of limitations? Facts get stale Reposewe dont want people feeling guilty for the rest of theirlives. Wrongness fades if accepted for a long period of time(exception of murder).

Agree with principle and correct application of law here.Practically, however, was some injustice done? Was it just atechnicality that prohibited valid claims from being heard?

Incentive to plead more broadly so amendments will relatebackbut then have to worry aboutAmericanNurses/pleading self out of court

Amend-ment

Post-judgmentamendment ofpleading

violating athird partysdue process ofRule 15 by notallowing thirdparty torespond tochargesagainst him

Nelson 15

59e

Nelsons right to due processto contest charges broughtagainst himwas violated by the post-judgment amendment.

Rule 15s reqs for amended and supplemental pleadings werenot met. Was never served with complaint/amendment in thecharge against him in his personal capacity. Not given his 10days to state his defenses against personal liability. Judgmententered against new party without allowing him to defendhimself. Violation of fundamental tenet of our legal system.

Couldnt argue his case on appeal because appeals courtdoesnt allow defendant opportunity to defend issue ofliability (appeals court doesnt hear facts)just reviewingwhether amendment was property.


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Reasoning that ruling wouldhave been the same againstNelson as it was against OCP, since they were effectively thesame entity and no new defenses could be presented byNelson to change verdict. Spirit of Rules not violated, sofudging proper procedure OKCourt says NO! The court isnot free to decide hypothetical cases and shun actual specified

procedurethats why the Rules exist. Nelson may indeed be liable, but he should be given his right

to defend himself at least.Follow the Rules!

PleadingSanctions

Basing claimon theory thatextendsmodifies orreversesexisting law(good faith)

Fragrante

/ Perfume 11 (Accent discrimination case under Title VII. Ultimate holding:

no discrimination herelegit concern about speechbuttheoretically could be. No Rule 11 bad faith in pleadingsanctions.)

Bad pleadings = no reasonable inquiry to see if pleadingwell grounded in fact & supported by law or good faithextension, modification or reversal; meant to delay or squeezeout settlement

PleadingSanctions

Standard ofreasonableprefilinginquiry

Business

Guides 11 BG accountable for insufficient prefiling inquiryhad time,

resources. Attorneys not to be held accountable for not inquiring behind

1st affidavit submission because there was an urgent need forthe TRO (was there really?) and sophisticated corporateclient seemed trustworthy.

Both accountable for not inquiring after accuracy of seeds firstcalled into question

Parties and lawyers must meet an objective standard of

inquiry. A signature on a legal document denotes merit and isnotmeaningless.

Pleadingsanctions

Extent towhich lawyermust confirm

factual basis ofclientscomplaint

Kraemer 11

(52b) Lawyers that have a legal theory and, in terms of facts, do all

they can to confirm but need discovery as a fact-finding/-confirming tool, are on good grounds.Attorneys cant berequired to prove their case before even filing suit!

No legal problem with Lawtons claim if alleged facts wereestablished. Claim failed not because of failure to state a claim(thats why it survived 12b6) but because discovery didntprovide enough to prove state action. With regards to facts(having put forth a legitimate legal theory), his inquiry wasreasonable because he hired a PI, and the PI was impeded byhostile, evasive parents; and evidence in hands of other party.

In conspiracy cases, evidence usually in hands of defendants,

so Ps need the tool of discovery to get facts. If discoverynecessary to establish a claim, then not unreasonable to filecomplaints to obtain the right to get discovery/coercive power

of court Pre-/post-Twombly: survival of 12b6 as a proper test for Rule

11 inquiring efforts?

Allowing discovery as a tool to get facts back to debate

about heightened standard

PleadingSanctions

-Sanctions forpleading ahopelesscase?

Saltany v.

Reagan 11 Pleading a hopeless case was a violation. Degree of injury is

relevant to Rule 11 violation. So (before 1993), if violationfound, sanctions mandatory.

Plaintiffs may not have been familiar with US law/procedure,


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-Insufficientfacts meaningviolation?-Pleading onelegit theorygets others off

the hook?

Suit against Cotter was frivolous because of immediateprecedent (Copperweld)barring a theory of conspiracybetween corporate board and its own board member/president.So there was a sanction necessary in Cotters case (pre-1993) What mattered was plaintiffs frivolous pleadingthat wasviolationwhich is not negated due to inefficiency by

defendants in dealing with it. 40 hours not unreasonable inthis defense, anyway (what was suspect was the time it took tobill) No single right sanction amountlower court mustreconsider and decide on something.

Lower court said no Rule 11 for USPF because at least somefacts were there for the 7 charges, even though they werelargely conclusory. Two erroneous points/assumptions bylower court: 1) If a complaint contains a formally correct legaltheory, then Rule 11 obligation satisfied. WRONGclaimcan be sufficient in form but still subject to 11 sanction (e.g.,if no reasonable inquiry). ALSO, one all-around valid claimdoes not validate other unsubstantiated claims as riders. Rule18a permits joinder; but each must have own valid foundation.

2) Sanctionability of complaint is related to sufficiency ofpleaded facts. WRONGthat is the territory of Rules 8 & 12.11 is just about proper knowing of facts before pleadingdoesnt affect notice pleading at all.

What if present court thought Copperweldwas wrong? Then

no Rule 11? More plausible if precedent was a close decision?Or should frivolousness be measured by degree of consensusin earlier cases? Also, political developments definitely seemrelevant to frivolousnessin the sense of plausibility ofextension/modification/reversalsince new judges make adifferenceor since national circumstances might affectcontext.

-Pleading

Sanctions

-TimelyPleadings(Estoppelfromassertingaffirmativedefensewhenfailing toraise)

-Moving for

summaryjudgmentsanctionableunder Rule 11,givenproceduralwaiver?(didnt raiseaffirmativedefense of nopersonaljurisd. atpleading)

-Canpro separties collectunder Rule 11?

Committe 11

12h1A

12b6

PJ defense waived because not raised at proper time

Defendant sanctionable under Rule 11 for not having known12b2/PJ procedure

Personal jurisdiction defense waivable (personal right fromDue Process Clause). 12h1A: personal jurisdiction defensewaived if party makes a Rule 12 motion but fails to raise thedefense in the initial motion. Defendant pleaded affirmativedefense of PJ in answer to amendedcomplaint, but not inprevious 12b6 motionso that defense waived under 12h1A

Rule 11 violated because no competent inquiry about whethersummary judgment motion could stand, given it had beenwaived under 12h1A

Pro seplaintiffs cant collect attorneys fees in civil rights

cases (SC wanting to encourage parties to retain cousel), butYES for Rule 11 violations because purpose is deterrence.

Rule 11: attorneys fees just part of expenses.Pro separties

can get other costs, like filing fees, etc.

Rules must be followed strictly even if intricateknow them

well! Judicial efficiency: here, dont get into process and thengo back and say it was invalid from the outset

Procedural requirements apparently clear enough to warrantRule 11 sanctionsBUT could be different under 1993s


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safe harbor amendment

Sanctions -Inherentpower of thecourt, beyondthat of theRules, to

sanction forbad faith/misconduct

-Limits ofRule 11; whenappropriate toreach beyond...(do Rules limitor just provideguidelines/foundations thatcan besurpassed?)

NASCO 11

(38)

Court has inherent power to sanction beyond/between Rules& statutes when those rules insufficient to sanction the badfaith conduct of parties

Inherent power not to be abused; not a reservoir of power

but many traditions and precedents acknowledge various

inherent powers of court. Appropriate whenfraud practicedupon the court

Neither 11 nor 1927 limit a courts inherent authority when

conduct not within reach of rule/statute. These are notlegislative attempts to curb courts power.

Inherent power requires restraint & discretionbut

dismissing a case outright has been upheld as within scope, socertainly sanctionsless graveOK, too

Court should look first to rules, but if inadequate, may invoke

power. Rule 11 not a limit, just a baseline for one type ofsanction. If sanctionable, not necessary to procedurally gothrough all available rules first and then invoke inherent

power; that would cause wasteful litigation, which is againstspirit of rules. Rather, can go straight to inherent power

Dissent:Slippery slope extension of fed cts power. Legal

limits obscured: courts free to ignore textual limitations onsanctioning power, just rely on inherent authority. Basicviolation of due process: people dont know what law is/limits

of court are. Unchecked power chilling effect on advocacy

Political theory critique: being skeptical that judiciary has any

inherent power? Power given by legislation? Constitutiondoesnt give inherent power expressly But judiciary readingit into existence of courts? Common law/tradition controllinguniversal acknowledgment giving legitimacy(?). Functionalargument: courts have to be able to control their procedures.

Some inherent power is, by definition, quintessential to acourtimplied by mere creation of judiciary by Constitution

Potential limits on between-cracks inherent power:

Legislation stepping in; 5th Am/due process requirements;appellate review

Service Sufficiency of service for dueprocesslikely to givenotice? (here,posting noticeon door versusmailing)

Greene 4 In this context, in light of alternatives (mail), posting on doorwas not sufficiently reliable. Due process was violated.

MullaneMinimum service standard: fundamentalrequirement of due processnotice reasonably calculated,under all the circumstances, to apprise interested parties of thependency of the action

Usually, door-posting sound (reasonable to assume resident

will check often, and the more interest they have in propertyand avoiding penalties, more likely) but here, no

Evidence that postings often removed, so not reliable. Still,

must be weighed against alternativesbetter ones? Postingwas nota last resort No 2nd attempt at personal service?

Dissent: Preference of mail = unwarranted. No evidence tosupport mail as betteronly scant testimony in this case toshow posting unreasonable. Not recognizing postingundermines KY statute designed for special circumstances of


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tenant/landlord relationship. Mail has its own risks: lost, slow,etc. (at least posting gets it to door)

Service -Actual noticerequired?

-Defining

dwelling/usualplace ofabode

Khashoggi 4

(60) Actual notice NOT necessary. Maid could properly receive

under Rule 4.Cant escape justice by physically evadingservice. Servers right to due process affirmed, too

Dwelling doesnt have to be sole residence. Can have multiple

abodes if sufficient indicia of permanence Unclear in this case whether service would have been

sufficient had Khashoggi not been there at the time

Service -Can a courtfashion its ownRule 4 servicesufficiencyexemption?

-Actual noticesufficient?

Mid-

Continent

Wood

Products

4

(12b5)

(60)

Bright line rule: Strict compliance with language of Rules

Actual notice insufficient if improper service

Exception only if substantial compliance and only a

technicality prevents (United Food, 9th Circ)but herecompliance by serving party was lacking.

No clear-cut evasion by Harris, either. Bad behavior, but dueprocess concern prevailing.

6 yrs prior, before default judgment, Harris could have raised12b5 (showing up wouldnt have conceded service)

No Stat of Lim b/c clock doesnt start until serviceandnever properly served

Service Validity of service whenprocuredfraudulently?

Wyman 4 In this case*when person being served is of and in another

jurisdictionno, cant fraudulently entice them to come

*ANACRHONISTIC: Though service of process is necessary

(but not sufficient) to establish personal jurisdiction, today theperson doesnt have to be in/come to a state to serve/getjurisdiction.

Does it matter that diff states? Fraudulent luring OK if lured

within own state, generally. Courts sympathetic to efforts toserve elusive defendants.

-Remedies:

Injunction(TRO)

-Decidinglegality/constitutionality

-Extent to

which canpeople bypasslegalprocedure,overrulelaw/court, ifthey deem law/applicationunconstitutional (Laterconsequences?)

-Criteria forTRO

Walker 65 Despite questionable constitutionality of ordinance,

demonstrators had legal duty to obey injunction. Should havesought remedy through court system

For granting of TRO, needing to show: 1) substantiallikelihood of success on merits (legal claim has good chancein case); 2) urgent, irreparable harm; 3) balance of hardshipsin favor of party seeking relief.

Howat: in antistrike injunction, even if exercise of power waserroneous, the injunction not void. Precluded from attackinginjunction in collateral proceeding. It is for court to determinelaws validity; until it does so, order binding.

Demonstrators did not attempt to comply with mandates ofordinance, which would have shown more discrimination and

perhaps justify disobedience of injunction more. Nor did theychallenge the court order, which was the legal way tochallengemight have dissolved or modified order.Ordinance/order not so blatantly unconstitutional as to bevoid on its face

Question of deciding legality/constitutionality of

laws/injunctions for oneself Majority says court will decide;people not free to bypass legal process. Reinforcing supremepower of court & its orders. Obeying the law should be strict


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in issuing, following, reviewing. Uniform application tocivil rights marchers and white supremacists alike. 1st

Am/indiv rights overshadowed by law/order preeminence.Separating strict application of law, from merits of parties (nodiff rights: marchers vs. KKK)

DISSENT: A permit would never have been granted

(injunction would not have sought injunction if they had intentof granting one). Demonstrators trying to sue first, followprocedure, would have been futile (no chance to win/getordinance), as evidenced by Bull Connor.

Unconstitutional ordinance because gives unfettereddiscretion to officials to suspend 1st Am rights.Lovell: Clearlyunconstitutional injunctionbased on ordinanceunconstitutional on its faceis violable. If you have to gothrough steps to get legal permission to violate clearly illegallawesp. in case of 1st Amthen no point in having basicrights of guarantees.

Ex parte injunctions never favored except when reasonably

necessary to enable court to decide an underlying controversy

of importance before it Circuit court in AL not doing thatherejust adding judicial signature to preexisting criminalordinance. Since law in place, getting injunction could serveno purpose except to be able to punish demonstrators withcontempt charges in addition to ordinance violation, and alsothus to immunize the unconstitutional statute/application from

any attack.

Some cases have required that to challenge constitutionalityone must first violate it to establish standing to sue Nodisrespect to law, to violate law then submit to judicial systemto willingly accept penalty if statute held valid. Higher respectfor law if disobeying unjust law? Law not the same as justicecertainly not the same as morality.

Majority implying that demonstrators would have been free toviolate court order if they had motioned to have it dissolvedfirst (but had failed)?

A central divergence of majority/dissent: How to knowwhether a statuteand an injunction based on itisunconstitutional before trial? Cant: depends on what courtsays; have to go with feeling. Majority says not obvious; haveto follow courts ruling until court overturns law, lestlawlessness run rampant. Dissent says sufficiently obviouslyunconstitutional as to permit ignoring.

Compare w/Martin v. Wilksobeying court order even if

maybe illegal?

Remedies:Injunction

Contemptsanctions forviolatinginjunctions:Criminal orcivil? Coerciveor punitive?

Terry 65

New contempt sanctions, with opportunity to purge, werecoercive and therefore civil and valid

Civil contempt meant for coercion & compensation; criminal

meant for punishment & vindication of court. Civil contemnorcarries keys of his prison in his pocket.Sanctions morelikely criminal if (1) not calibrated to actual damages; (2)payable to state, not party; (3) extremely large

Bagwell: Non-compensatory fine is civil and may be imposed

even without a criminal trial if given opportunity to purge.


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Mine Workers: civil and purgeable when imposed andsuspended pending future compliance. Fines w/out purgprovision are criminal because emphasis on punishment, notreform. Calibration of damages to injuries, and who collects,are irrelevant given purge provision. Fines not excessivelylarge. Letter of Affirmation not punitive b/c not an admission

of wrongdoing; rather just objective statement about contemptand intent to abide

Courts keep authority to quickly/unilaterally issue injunctionsand find contempt without violating due process by allowingdefendants to purge. Emphasis on coercion/reform.

Why distinction of criminal/civil matters: More due process in

criminal; Opportunity to purge in civil; Different standardimportant: beyond reasonable doubt vs. preponderance ofevidence; Right to jury trial usually in criminal, rarer in civil;No self-incrimination immunity in civil; Right to counsel incriminal context

Remedies:Injunction

Decidingstays: Here,

sufficientlylikely thatfollowingcourt order (torecount) wouldcauseirreparableharm?Balance ofhardships?

Bush v.

Gore (com-

mon

law)

Majority: Irreparable harm was posed by order to Bush:

Recount would undermine legitimacy of his presidency.

Recounting ballots could degrade accuracy.

Dissent: No substantial likelihood of success shown: Countingballots not irreparable harm. A stay, on the other hand, istantamount on decision on merits in favor of applicant. Thuslegitimacy undermined for whole election

Different standard presented in dissent: substantial showingof a likelihood of irreparable harm (rather thansuccess onmerits)confusion, or melding of two standards? Thatstandard would be lower

Incredible amount of discretion in applying test for stay(similar to injunction). Effectively gives election to Bush.

Remedies:

Injunctionvs.Damages

-Damages an

inadequateremedy at law,such thatinjunction wasnecessary?

-Higherstandard forinjunction as

finalremedy(not justtemporary)?Irreparable

harm not thestandard?

(-Law &economics/Posner)

Walgreen (65?) In cost/benefit of damages vs. injunction in these

circumstances, injunction reasonable enough not to reversedecision of trial court, which should be given deference.

Damages are norm in breaches; injunctions only whendamages inadequate.Difference between inadequateremedy and irreparable harm emphasized.

Striking a balance of costs/benefits: Job of trial court, given

factual basis. Plaintiff seeking injunction has burden ofpersuasion. If permanent injunction sought, must only showthat damages inadequate, notthat denial of injunction of willcause irreparable harm. If cost/ben balance equally, then givedamages by default

Benefits of inj: Shifts burden of determining cost from courts

to parties. Free market determination = cheaper, moreaccurate than court-imposed. Let them bargain over howmuch injunction (enforcement) is worth to them

Costs of inj: Supervision. Bilateral monopoly: parties locked

into negotiating w/each otherlack of alternatives can maketransaction costs high. May be breakdown in negotiations asparties bargain over price of injunction.

Ben/costs of money damages are mirror image

Trial judge had reasonable approach, so deference affirm


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Posners economic emphasis: Looks more at balancingcost/benefits with judicial resources (even society) in mind,not just between the parties. Aggregate good is consideredbeyond party-party relationship. Should third party interestsbe relevant?

-Discovery

-Amend-ment

-Failure tovoluntarilydisclose

-Relate backclaims;equitableestoppel fromraising stat. oflim. Defense

-Receivingnotice as not tobe prejudicedby amendment

Chalick 26a

15c

37c1

16

Defendants violated 26a, so sanction necessary. D not allowed

to invoke Stat of Lim, since thats meant to protect againstunfair notice, and here not unfair because improper notice wascaused by Ds own misleading

Ds argue no notice and no reason to know (Rule 15). 15c: To

relate back, amendment must; arise out of same operationsatisfied; not prejudicedsatisfied (really?); and should haveknown he was concerned and not named only due to mistakesatisfied, since should have been aware of lawsuit

26a1a: Defendants obligated to provide not just names ofknowledgeable parties but also basis of his knowledge (andcontact info). 1990 amend. make 26a disclosure voluntary

37c1: Since voluntary, threat of gamesmanship, so if 26a

violated, sanctions are mandatory unless justification/no harm

No justification for not disclosing. Harm done to P. Also hurts

court: impedes efficiency; delays decision of case on merits

Discovery -Discover-ability of info(throughinterrog.) notdirectlyrelevant butperhapsleading toadmissibleevidence

Sullivan

&

Cromwell

26b1

26g3

37a3

Rule 26: though inadmissible itself, possibly helpful toclaim/case because establishes background environment (vis--vis discrimination), may identify persons of interest todepose, may induce settlement through hassle/embarrassment.

Allowing other evidence to round out case, get leads

Discovery not just about evidence, also about leverage.Inducing settlement. Embarrassment, time, resources, etc.

Court may or may not sanction for resisting interrogatories

-Discovery

-New Trial/Relief fromFaulty

-Decidingrelevance ofdocuments

-Producing

Rozier 26b1

60b3 Interrog & court order not limited to specific model. If in

doubt of relevance, Ford should have sought ruling by court

Given relevance, failure to produce hurt Ps case. Couldnt

show pre-production negligence; but report about later,


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Judgment documents incomplexorganization

similar model could have shown that Ford aware of defectsand yet didnt inform

26b1: inadmissible evidence still discoverable if reasonablycalculated to lead to discovery of admissible evidence

Liberal discovery rules so case about merits, not bluffing.

Emphasizing fairness of discovery process

Ford prob didnt make conscious decision not to producedocumentmore due to organizational failure with big parties

Discovery Work productprotection:Extent towhich partycan discoverother counselstakenstatementsfrom witnesses& similar infoin its research

Hickman (26b3)

Atty-client priv = narrowly interpreted.Notprotected in these

circumstances, just between atty & clientnot 3rd partyinteractions & other materials. A broad interpretation couldgive corporate defendants the advantage of a large cloak ofprivilegethough cant argue it one-way

Here, not an ordinary request for relevant, non-priv infoAsking for reproduction of things available on record orotherwise attainable by requestor. No reason to suspectdishonesty from public testimony.

No necessity shownnot showing why it wouldnt cause

hardship/injustice. Just being material & non-private is notenough. Not part of Rule 26* but prohibited by Rule 26 butprohibited by underlying policy of court/adversary system:Cant, without justification, just obtain adversarys materials& interpretations! (*ANACHRONISTIC: SEE MODERN26B3) Forcing an adversary to recount witness interviewswould lead to inaccuracy, bias, fear of lowered prof standards

Not all adversarys materials protected from discoverydep.

on circumstances (how necessary, difficult to procure)

Discovery Work productprotection

Adlman

(squib2nd Circ1998)

26b3 Now the majority view: Broadprotects nearly all business

anticipates litigation. Not just documents prepared to aidinthe conduct of litigationmuch less justprimarily orexclusively to aidbut rather extending to documents

prepared because oflitigation DC Circ. even broader: Motive-basedtest: any product

prepared where actual (subjective) and reasonable (objective)belief that litigation a real possibility

Some dissenters reasoning that narrow interpretation of 26b3

could lead to silencing of attorneys & their communication;chilling of representation; causing ineffective/inefficientadvocacy & lawyering

Discovery Atty-clientprivilege &work productprotect forcorporations

Upjohn 26 Atty-client priv acknowledged as sacred.Does apply to

corporationsnot just to execs, but to all members acting incontext of employment, since 2-way street: atty needsprivilege, too! Lower-level employees can still have effect on

proceedings. Communications between employees & counselare in atty-client context, so priv

No zone of silence policy concerns b/c adversary in noworse position than if communication had never occurred

In privilege,facts are not shielded, just communications.Facts can still be gotten through depositions, etc.

So how about memos, beyond responses to questions? Workproduct doctrine: Sufficient showing necessary to overcome?Hickman saying work product not absolutemaybe OK then


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if interviews too hard to reobtain. But notes & memossomewhat sacred b/c revealing attys mental processes

Court not articulating work product standard, but in this casenot sufficiently necessary to overcome (or at least hasnt beenshown yet

Discovery Opinion work

productprivilege

Squibs:

see right

26b3 Holmgren: Opinion work prod notabsolutecan show need

to overcome. E.g., if mental impressions are at issue, as infraud case, then material (like in Twombly)

Duplan: Opinions of attys in anticipation of litigationprotected by 26b3 & reading of Hickman protecting attythough processes.Justice over truth.

First Federal Savings: Agent between atty & client is part of

privilege as long as acting as a medium in legal context.Waived if shared for/in non-legal purposes/context

SummaryJudgment

Burden toshow absenceof genuineissue of fact:

-Whatstandard/howconclusoryallowed?

-Non-movanthaving toproducesomething inresponse?

Adickes 56c/e Cant just give sweeping, conclusory denial. Moving party hasburdendoesnt shift to non-movant until movant shifts itover by showing absence of genuine fact. Non-movantdoesnt have to produce anything in response if motion didnt

meet SJ standard. Material must be viewed most favorable tonon-movant. Here, failed to foreclose possibility questionfor fact-finder

56e argument: incumbent on petitionerto produceevidence/affidavit about fact to be relied on But argument

failsb/c not intended to shift 56c burden of moving party: ifevidence in support of motion doesnt establish absence ofgenuine issue, SJ must be denied even if nothing attached toopposition

Hard standard toshow that nothingthere (hard to positivelydemonstrate a non-existence)

SummaryJudgment

Sufficience inshowing

lack ofgenuine issue:producingevidence vs.pointing toabsence?

Celotex v.

Catrett 56

(12b6)

In motion for SJ, a showing may just be pointing to lack ofevidencedont have to produce new materials

SJ proper if no gen issue. Moving party has burden of

explaining reasoning or motion & identifying where absenceof gen issueBUT no duty to produce evidence to negateopponents claimRule 56a/b

So validity of granting SJ = independentof

affidavits/evidence submitted. Original motion doesnt have tobe supported by affidavitsthose just make it moresusceptible to rejection. If you can rely on absence of issuew/out affidavits, OKonly necessary to point out from therecord. D.C. Circ. relied on 56e &Adickes: party opposing SJbears burden only aftermovant meets its burden comingforward with proof of absence of genuine issue of material

fact. Modifying Adickes: Moving party does have burden, andno burden on non-movant until movant has shifted by makingshowingbut showing may just be pointing to lack ofevidence on record, in addition to possibly showing evidence.

56(e) intended neither to reduce nor addto burdens of 56(c)

Interpret 56 (liberally) so as to weed out. SJ NOT a disfavoredshortcutit is integral part of good procedure & justice.Picking up where notice pleading left off in filtering suits.Part of due process of movant


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Diff between 12b6 & 56: In complaint, allegations areassumed true to withstand dismissal; in SJ, not assumed true(though assumed most favorably) to survive

DISSENT (Diller: off-base): Court has not explained what isrequired of movant seeking SJ on ground that non-movant

cannot prove its casewill create confusion. Even if agreeing

in principle, in this case didnt think Celotex met burden.Movants burdens:Initial burden of production*shift toother party; make prima facie showing (Rule 56) +Ultimate burden of persuasionalways on movant; morestringent than initial (has to be clear that trial unnecessary).Initial/Production: (*Diller disagrees here): If burden ofproof at trial will be on movant, then it must support withcredible evidence; OR if burden will be on non-movant attrial, may submit affidavits OR point to absence of issue. Ifjust pointing to absence, cant just have conclusory denial(thats no burden at all)would just go to harassment.Showing of absence must be affirmative in itselfhave to dosomething (e.g. point to specific parts of record)

*Hoffs testimony would be looked at differently under JMOLthan SJ because would be what actually came outat trial(nospeculation/inferences problem)see Catrett, whichanticipates that

SummaryJudgment

Sufficiency ofshowing inopposition tomotion for SJsufficient tocarry burdenof proof at trial

Catrett v.

Johns-

Manville

(remandfromCelotex)

56c Items presented by P, though insufficient on their own, when

taken together create a genuine issue of material fact

Trying to maintain higher standard for SJ (i.e., harder to get),

in opposition to SC in Celotex

Dissent (Bork): Cant read into witness listing some personal

knowledge that wasnt claimed in the evidence/on record.Court should avoid reading between lines; should not shun SJ

-Summary

Judgment

(Remedies:Injunction)

Hazy line

between judgedeciding lawvs. fact:

-Encroachingon jury role?

-experttestimony?

Matsushita 56e

(likepost-hoc12b6)

Judge decides economic theory as matter of law, excluding

expert testimony as to monopoly theory, circumventing jury Failure/non-existence of monopoly = evidence that no

conspiracy. Means to sustain losses not same as motive

Absence of motive/economic rationale no genuine issue

(56e).Show more than conspiracyalso injury

Must be genuine issuei.e., realistic, reasonable based on

evidence to fact-finder. If it makes no sense on its face, morepersuasive evidence must be produced. Hold evidence in lightfavorable to non-moversReview the record taken as awhole.

Antitrust =special case: cant just draw ambiguous inferenceb/c conduct that looks the same in legal competition as well as

illegal is not evidence to support inference. Also, must showevidence to exclude possibility that behavior wasntindependent. (Comp. w/Twombly analogous to heightenedpleading standard)

From Monsanto: Dont infer conspiracy when implausible b/cthis will actually deter competition, which is what antitrust issupposed to promote. Economic emphasisif nomonopoly/oligopoly yet, then its good for consumers.

Dissent: Court invades fact-finders territory. Makes econ


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assumptions (basis of whole argument) that are contradictedby a report offered by respondents. Report creates factualissue, so no SJ. Debatable assumption that conspiracy wouldvalue profits over growth = question of fact for trial

SummaryJudgment

(JMOL)

-Courtweighing

evidenceinvading fact-finderprovince?

Anderson 56

(50) Promoting SJ: standard not whether scintilla of evidence for

claim, but whether reasonable jurors could find preponderance

of evidence. Supposed to be clear & convincing burden toget SJbut seeming to change to preponderance ofevidence standard (at SJ stage)

SJ as similar to directed verdict/JMOL of Rule 50: genuine

issue vs. reasonable jury

Dissent:Anderson calling for judge to weigh evidence to meet

quantum of quality/caliber. Leads to counsel worrying,presenting all evidence at SJthen judge becoming jury!Fears SJ will become full-blown paper trial on meritsand ithas! What about 7th Am? Better standard: If evidence supportselements needed to be proved, then SJ must fail, regardless of

how clear/convincing thats for fact-finder

Summaryjudgment

-Inconsistentaffidavits

Colosi 56 Posner: if multiple affidavits, some defeating/contradictingothers on same point, then whole point can be negated iftheres an overwhelming imbalance

Right toJury Trial

Whether CivilRights Act or7th Am requirea jury trialupon demandin action fordamages &injunctiverelief

Curtis 38 2-part testdecides. Here, CR Act not requiring jury trial but

7th Am giving it b/c legal claim (tort) & legal damages

7th Am: preserving right to jury trial for suits at common

law. CL extending to all cases in which legalrights were tobe ascertained and determined (as opposed to equitable rightsalone) and equitable remedies. Looking back in time to seewhat common law meanscan be originalist or loose/expanded to analogous claims/theories (here, duty ofinnkeepers not to refuse common carriers w/out justification).

7th Am can apply to causes of action based on statutes (not just

common law). Does apply to actions enforcing statues if legalrights/remediesjury trial required on demand. Damagesaction here is a legal action (basically analogous tocommon law tort)

2-part test: 1) Is the action of or analogous to common law

(legal theories)? 2) Is the type of relief sought legal (versusequitable)? If relief is only equitable, no 7 th Am right, even ifsuing for legal claimsunless statute says otherwisethenstatute supercedes

Argument that statutory claims not qualifying under commonlaw, since statutorybut that argument dismissed. Statutes as1-way helper for jury trial: Cant take away 7th Am right, butcan give jury trial right where not guaranteed by 7th

Preliminary injunctions remain available without jury trial,even in damages actions

-Right toJury Trial

-Joinder

-RJ/CE

-Joinder vs.severing oflegal &equitableclaimstryingseparatelybefore judge &

Beacon

Theaters 38

42b

13a

Decl. Judg. Act & Rules change tradition, expand legal realmover equity. Joinder allowed, so jury for both.

Discretion of judge to severseparate trials for liability &

damages.

*Fox jumping the gun: The would-be plaintiffis Beacon(common in this situation that other side sues first); the


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jury

-Duplicity offact-finding?Preventingpreclusion

underlyinglawsuit is the antitrust claim. DC abused its 42bdiscretion to postpone/separate antitrust claim. Fox can justpresent its case all in one suit, get injunction from judge afterjury gives its verdict. Beacon shouldnt have to split up itscasecompelledby 13a to counterclaim.

Antitrust case as well as injunction hinging on

reasonableness of first run, which is a factual issueso itwould be a problem to sever because it would duplicate thefact-finding process by having judge find them in bench trial,first, then having jury re-determine the same question insubsequent trial: Res judicata & collateral estoppel

Rules allow for liberal joinder, & DJA expanding scope of

law over equity. DC may split cases, but only in extremecircumstances. Efficiency of joinder; certainty & non-duplicity of fact-finding.

Rules (or majoritys interpretation) morphing historicjurisdictional structure of law/equity

Dissent: OK to split under 42b, so DC justified in using its

discretion. Just b/c Beacon answers w/counterclaim instead of

denial, shouldnt change equity jurisdiction. DJA notexpanding law (over equity)just giving new remedy (i.e.,declaratory judgment) at either law or equity; DJA just anempty vessel

Equity courts may consider legal rights in partno bright linerule. Rules do notexpand substantive law. Counterclaim didnottransform claim into action at law. Rules do not trumphistoric structure

-Right toJury Trial

-Functionality/complexity asconsiderationfor havingjury? (Here,judge or juryto definepatent claim?)

-Implicationsfor dueprocess?(What ispurpose of dueprocessanyway?)

Markman 38 Where historical test of law/equity fails, decide byfunctionality: if too complex for jury, let judge decide

First, ask if cause was traditionally legal or analogous to legal

(e.g., Tull). Cause here is legal (as opposed to equitable). If

so, second, must decision go to jury to preserve substanceof common law right? Meaning of preservingsubstance??In interpreting, use historical method: look to antecedents,analogies. Here, no answer from history If no historicalanswer, look tofunctionality

Miller v. Fenton (1985): If indecision, decide based onwhether judge/jury be better positioned to decide. In patentconstruction,judge better able b/c trained in interpretation,and claims are highly technical. Although questions ofcredibility bound to arise are territory of jury, those are lesscrucial to overall interpretation than trained ability to evaluatetestimony relative to structure of patent.

Also, policy reason: judicial construction = more uniform

(thinks majority), thus avoiding uncertainty &discouragement of investment

Complexity exception? Mistrusting ability of jury / preferringwisdom of judge in complex matters.

Markman hearings: now customary at beginning of caseaboutscope of claim (though the question of whether deviceinfringes on patented device is for jury). Lower courtsdissenting Does complexity exception under patentconstruction apply to other difficult suits (e.g., antitrust


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[econ], mass tort [scientific]), too?

Purpose of due process? 3rd Circ: To minimize erroneous

decisionsso if jury not understanding evidence and laws,then it cant apply them reliably/well.

Dissent/argument against accuracy purpose of due process:

Missing out on legitimizing force of juries, thenand

objective truth not certain w/judge anyway. Due processw/jury necessary for moral authority. 9th & Fed Circs.:Nothing says that juries removed if too technical (just givethem with proper instructions). Due process is aprocessnota destination (i.e. accurate result); trials to befair not perfect.

Critique: Shouldnt scope determination be part factual?

Partly based on expert opinion? (Since judges not patentexperts?) Compare to Matsushita

Strange/Inefficient to determine scope of claim before actuallyexamining (factually) the device/patent in question

Jury vs.Judge

(New Trial)

Specialverdicts:validity of

finding whenseeminginconsistencyin specificanswers

Gallick 49a

(59)

Jury found essential basic ingredients, so these answers ruleover more conclusory answers b/c maybe jurymisunderstood/misapplied later ones.

Making effort to preserve jury verdictreconcile apparentinconsistencies (wording) so as to preserve

Dissent: The more conclusory answersbroader onesshould notbe defeated by the ingredient answers to theextent irreconcilable. Should only try to constrain areconciliation when jury returns a special anda generalverdict (try to fit special to meet general). But here, shouldorder new trial. Judge invading jurys province to find

JMOL

Right toJury Trial

-Extent towhich juryinferences willbe allowed on

evidence vs.court makinglegal cutoff;speculation vs.proof

-SeventhAmendmentstandard

Galloway 50a

(7th

Am)

Need to demonstrate by more than speculative inference.Here, even in best light, gaps that cant be bridged (and gapsthere b/c wife wont testify, so no good inference from that).As a matter of law, not thinking rational jury can draw

inference on 5 yr. chasm (So how much time would beOK?) Burden of proof on Phere simply not met, evengiving full credence, since huge gaps.

JMOL not barred by 7th Am. Here, no 7th Am right here b/c in

1791 no jury right to claims against sovereignand 7th

Amendment does not preclude JMOL anyway (Rules asevidence). Jury right wasnt absolute in 1791 anyway: haddemurrer to the evidence as well as motion for new trial 7th

Am not binding courts to exact procedure of 1791evolutionallowed, then & now. 7th Amjust to preserve fundamentalelements of jury rights, not procedural details. 7th Am neutral:impartial to either sides rights

Dissent: Court invading jurys fact-finding province in

common law suit by weighing evidence, as barred by 7th Am.(ANACHRONISTIC: JMOL now expressly permitted by

Rules) Directed verdictas extension of demurrerwaswhen no evidence whateverbut this was potential forjudicial intrusion and went beyond demurrerb/c of big riskdifference: JMOL has no risk whereas demurrer gave movantno chance to present his evidence, admitted inferences &evidence of non-movant, and then faced final judgment!Getting dangerous when moving to substantial evidence


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rule when JMOL allowed even though more evidence therethan would have previously needed to withstand demurrer.Here, even 5 yr. chasm is a question of fact for the jury.

RJMOL -McDonnellDouglasstandard:

burdens ofpleading,production,proof/persuasion

-Reasonablejury

-JMOLstandard:compare &contrast w/SJ

Reeves 50b Earlier 5th Circ decision: even though/if sufficient evidence for

a reasonable jury to have found that Ds explanation for firingwas pretextual, this wasnt the ultimate issue. Issue was

whether firing was made in direct context of ageand Pdidnt produce suff evidence.Even reasonable jury standardnot enough to withstand JNOV! (to 5th Circ)

McDonnell Douglas test for burdens of production

&proof/persuasion in ADEA claims on circumstantialevidence: 1. Plaintiffs burden of pleading: must establishprima facie case (legally cognizable claim); 2. Burden thenshifted to defendant to produce evidence against claim, i.e.that P was rejected or someone else preferred due to legit non-discrim reason. This is burden of production. 3. Burdenshifted back to P to prove case by preponderance of evidence:Ps burden of persuasion (proof).

Note: Diller hates McDonnell Douglas test: the steps arent

separableand not presented in this order at trial (really 1 &3 first, then 2)but this is black letter. However, Court hereseeming to implicitly recognize here that 1-2-3 not discrete

Here, 1 & 2 easily met. P made substantial showing that Dsexplanations (under #2) were false. 5th Circ ignored evidenceby P establishing p.f. case & challenging Ds defensesCourtmisconceived evidentiary burden borne by Ps!

Standard : not enough to disbelieve the D (here, the employer);must also believe the Ps explanation.HOWEVER, it ispermissible for fact-finder to infer the ultimate fact of discrimfrom the falsity of the explanationi.e., if Part 2 disbelieved,that may combine with establishment of prima facie in Part 1

to satisfy 3. Thus, 1 + rejection of 2 means no additionalshowing necessary in 3. No extra proof needed in 3 (as 5 th

Circ reqd)P can simply tear down 2.

Whether JMOL appropriate dep on several factors: Strengthof prima facie case; Probative value of proof that Dsdefense/explanation is false; Other evidence supporting Inany case, NOT true that P must always introduce additional,independent evidence after Ds defense/explanation

Compare JMOL to SJ: differences are timingand whether

evidence isprospective vs. what actually came out. Also,though judge not supposed to consider impeachment/credibility in JMOL, this may play a role

In making JMOL, look at whole record (like SJMatsushita)

but draw reasonable inferences for non-movant, not makingcredibility determinations or weighing evidence. Disregardall evidence favorable to moving party that jury not required

to find. (Contrast w/spirits ofMatsushita &Anderson)

Ps arguing strongly that contrary decision would undercut theright to jury trial by allowing appellate judges to assesswitness credibility

Allowing appellate judges to assess witness credibility

undercuts 7th Am. The reasonable jury test has resulted in


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more overturning of jury verdict

Ps argue that appeals court judges are out of touch w/real-world issues, comp. w/jurors (here, workplace discrim)

New Trial Justificationfor appellateoverruling

denial of newtrial

-Credibility/Impeachment-Prejudice-Deference

Sanders-

El 59 If an improper act sufficiently prejudicing jury, new trial can

be ordered: Rule 59

Nature of information (degree that substance prejudices

whether inadmissible) as well as nature ofpresentation/conduct (theatrics of counsel) both count

Arrest record ruled inadmissible here for impeachment.

Needing new trial because: Close call in this case; theviolation was not isolated nor accidental; the jury was notinstructed to disregard; information (arrest record) was highlyprejudicial

Dissent: more deference to trial judge on judging prejudice

Juries made up of people, so allowing them to hear about

arrests still prejudices themindependent of instructions.Thinking that jury cant compartmentalize in mind; thoughjudge presumably can Different standardswe dont trust

the jury as much. Contrastlack of trust in jury, here, withemphasis on importance & sanctity of jury in 7th Am

-JMOL /New Trial

-ExpertTestimony

Appeals courtenteringJMOL aftertestimonystricken &remainingevidenceinsufficient;not remanding(Anachronism:

anticipatesw/50e)

-Expertwitnessesmatter of law

Weisgram (50e)

(59) If trial court better able to decide, then remand.But, if appeals

court thinks no more proceedings necessary given the record,can enter JMOL against jury-winner (after erroneouslyadmitted evidence is removed). (Now, express in 50e)

No more 7th Amendment infringement if appellate court gives

JMOL than if DC. No reason to remand/give second chanceb/c not close in this case (but seeDissent). P had fair chanceto present its best case. Fairness runs both ways: both sideshave notice, before close of evidence, of objection ofdeficiency of evidence; both can argue on appeal. Cant arguethat parties will present less than best case on first run. P not

caught off-guardwas aware of continuous objectionshould have anticipated basis of appeal.

Undercutting fact-familiarity wisdom of jury/trial judge?

(contrary toReeves?). Hurting jury-winners by deprivingthem of relied on evidence?

Impetus to make best case first & fullyyou shouldanticipate that your evidence might be taken away on appeal!

(esp. if being objected to throughout)

Check on runaway juries?

This testimony can be stricken as non-credible by judge as amatter of law because court has the authority todetermine/regulate expert witnessesthey are experts as a

matter of law (so not infringing on jurys credibilityprovince). Uniquely, experts are allowed tospeculate/giveopinions.

Distinguish fromRoziersituation (R. 60 relief) where new

evidence led to new theory, not taking away evidence

-New Trial

-Remittitur

-Denying newtrialconditioned onremittitur

Curtis

Publish-

ing

50

60

Majority says trial judge rejected that remittitur was not due topassion/prejudice improper influence (so no new trialnecessary)

Punitive damages allowed here, so must determine a


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-PunitiveDamages -Constitution-

ality ofarbitrarypunitivedamages

-7th Amimplications ofrunaway jury

reasonable maximum. Trial judge chose correct standard,considering purpose of damages as well as reprehensibility(wanton indifference to rights) of acts. Granting new trialnot a solution b/c process of applying same elastic standardwould just repeat itselfcould go on indefinitely. Curtis hadfair chance. Defer, even with vague standard.

Finality & efficiencydont let cycle go on forever

-Remittitur Appealabilityof remittitur?

Donovan In federal court, P may not appeal a remittitur order they haveaccepted, whether cause of action is state or federal law.

Efficiency & closure of making accepted remittiturs final.

PunitiveDamages

Determiningdue processreasonable-ness ofpunitivedamages

Pacific

Life Punitive damages do not violate due process if: (1) Jury

instructed properly as to function of PD; (2) Award amountwithin reasonable limit. Post-trial & appellate review asmechanisms to make sure reasonable.

Factors helpful in determining excessiveness: (1) Whetherreasonable relationship between likely harm from defendantsconduct & harm that actually occurred; (2) Degree ofreprehensibility, duration f conduct, awareness, concealment,past conduct; (3) Profitability of bad conduct & desirability toremove that motive; (4) Financial position of defendant; (5)Costs of litigation; (6) Imposition of mitigating criminalsanctions; (7) Other mitigating civil awards

Punitivedamages

Judging dueprocessexcessivenessof PD

TXO

Prod. High PD amount & ratio OK given situation, motive & wealth

of defendant. Jury instructions OK.

Concurrence: To ask whether particular punitive award isexcessive begs question: in relation to what? No hard standardof review of excess. Illusion of objectivity & restraint in thistype of review, perhaps discouraging desirable legislative

intervention. Scalia/Thomas concurrence: 14th Am does not limit punitive

damages b/c not a secret repository of substantive rights.

Dissent: Due process violation if great disproportionandhere there was because far beyond any similar precedent.

BMW v.

Gore Excessive verdict s violate implied substantive due process

rights of 14th Ambecause of elementary notions of fairnessin having fair notice of punishment/severity. Substantivedue process, not procedural. Gateway for inferring rights.

Possible counter argument that fair notice/caps on ratiosanalogous to our discussion of jury community rule-interpreter/-maker standard (which is not certain either)thatjury should be allowed to compensate for low

compensatory?

Three guideposts (showing inadequate notice to BMW ofseverity of sanction): (1)Degree of reprehensibility(presumably considers financial position of defendant? Butwealth of a defendant cannot justify an otherwiseunconstitutional award); (2)Disparity between harm or

potential harm suffered, and PD award; (3)Diff between PDhere and civil penalties in comparable cases

Concurrence: awards must not be arbitrary to be fairly applied


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people can choose actions. Looking to statistics, middle of thepack, as a guide (But why is slightly above median made to bethe upper limit??)

Dissent(besides subst. due proc.): The abuse of discretion

standard is well grounded, sufficient to take care of outliers.The caps the majority considers have been legislative, not

judicial (so not analogous unless Congress). Slippery slope inimposing ceilings Can be fair without rigid formula

PunitiveDamages

Punishing Dfor behavioroutside thecase? (dueprocess prob)

Philip

Morris Evidence of actual harm to nonparites can help to show that

the conduct that harmed the plaintiff also posed a substantialrisk of harm to the general public, and so was particularlyreprehensible

Yet jury may not go further than this & use PD to punish a Ddirectly for harms on nonparties. Punishment for harm to non-parties violates due process b/c: No chance to defend selfagainst non-parties; Standardless, ambiguous judgmentstoo

complex to consider goes back to fair notice, sinceuncertain; Unprecedented to punish for actual harm to othersonly precedent for considering the reasonableness of PD in

light of thepotentialharm the conduct could have caused.Courts instructions to jury were unclear

Dissent:Agreeing with standard set forthbut the statecourts procedure was not inconsistent with this standard; norwas there any objection at trial by PM to the actualinstructions given!

Since cant consider harm to others, how to determine

reprehensibility in some cases, then? Cutting into 1st

Guidepost? Foreclosing on punitive damages altogether?Maybe not: *Logic that you can consider harm to others todetermine insofar as that would reflect on the defendantsnegligencei.e., how knowingly they exposed the plaintiff toharm/riskwhich speaks to reprehensibility; but cannotextend the punishment for actual harm done to others. In otherwords, look outside the parties (to knowledge of effect onothers) to determine the reprehensibility of defendantsbehavior in this case in light of awareness of its behaviorspotential to harmthen punish just for the harm in this case.

Finality vs.VacateJudgment

-Motion tovacate &sufficiency toconstitutefraud on thecourt?

-Statute of

limitations

Kupfer-

man 60(c) No fraud on the court, so judgment vacation (based on fraud)

barred by Rule 60c/statute of limitations.

Normally 1-yr filing time limit, exceptsaving clause: vacate if

fraud upon the court. Fraud not just anything badonly ifpreventing usual, impartial judicial operation.

Fraud b/c failure to disclose? If criminal case, or if fiduciaryduty to P, or under order to produce, then quite possibly

fraudbut not so here. Ethically, prob should have turnedover, but hindsight 20/20. Ross didnt know of Purcells(surprising) ignorance; made no misrepresentations

Vacation ofJudgment

-Free choices

-Interveninglaw

Squibs 60b5 Ackerman: no relief for free, calculated choices

Finality can be overcome by change in law, if suff public

policy reasons.Agostini: Court vacating injunction (teachersin parochial schools) given laws in meantime.Dissent: no factchange, no formal overruling, so dont invite flurry of 60b5s.View of law as just prevailing contemporary rules


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since antitrust violation constitutes separate ground forrecovery as well as a defense to the prior suit, its a diff causeof action), no res judicata... True, when facts form the basis ofboth a defense and a counterclaim, the Ds failure to allegethese facts does not preclude him from relying on them in asubsequent suit against P BUT, when later counterclaim

would nullify rights of the established prior decision, then thecounterclaim is precluded by RJ.

Not just for judicial economyalso b/c other party(McDonalds) relies on the first decision

CollateralEstoppel

-Collateralestoppelapplying tosituationw/same facts,issues, partiesbut stemmingfrom diffcontract

-Interveninglaw changingpreclusiveeffect

Sunnen Where second claim/action between same parties is on

different cause/demand, RJ is applies more narrowly nolonger the could have broughts,just estopped from

rehashing issues actually litigated CE

Here, diff action: royalty payments growing out of license

contracts which were not involved in earlier action. Even ifidentical contract, n/a (not conclusive) if hadnt been atissue/if diff facts & issues. Here, complete identity of facts,issues & parties as between this & earlier Board decision

Did Clifford-Horstline of cases change legal doctrine inmeantime? If so, CE n/a & diff result permissible. Yes, did

CollateralEstoppel

-Non-mutualoffensive CE

-CE applyingin civil/fedcase (1983)from earliercriminal/statedecision?

-Trusting statecourts?

Allen 1983 was only new federal cause of actionno effect on

preclusion. Legislation not seeming to undercut preclusion normove power to fed cts over state. App ct: One has a right tofederal claims as wholly unencumberedbut where gettingthis from? No justification in Constitution, 1983 nor case law.1983 drafters didnt consider it substitute for habeas corpus.

Dissent: Fed remedy as supplementary to state, not

competing, so different. SCs policy of 1983 preclusion: *If

party submits fed claims to state courts explicitly, thenforegoes fed ct hearingimplying that if not submittingspecifically, then not foregoing 1. Nonparties couldntinvoke CE at time of 1983 passage b/c no mutuality of parties(was state, not police officers). 2. Narrow defs of issue/

causeno civil preclusion if criminal origin. Criminal &

civil (1983) have diff remedies, diffprocess of evidencediff

standards & concerns (basically not trusting state courtjudges?? Thinking they will bend evidence so as not to let offcriminal?). Def not seeking to challenge his convictioncollaterally, just seeking damages. *P didnt voluntarilylitigate in state/crim trial just by raising 4th Am defense there,so not precluded under aforementioned SC rule in later civil

action. Unfair to force choice between full criminal defense instate trial & potential of later civil federal trial for 1983

-CollateralEstoppel

-Right toJury Trial

-Non-mutualoffensive CE:other testsbesidesmutuality

-Piggyback onnonpartys

Parklane

Hosiery (38) With Off CE, shouldnt just apply mutualityother factors to

decide fairness of CE. Give courts discretion to apply.Dependent on whether nonparty could have reasonably joinedearlier, & whether fair to defendant (given below factors)

Criticism of mutuality: Party who had litigated & lost has

advantage over new party in relitigationSC abandonsimplicitly. Party getting more than one full & fair chance to


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winning suit?

-7th Am & CEw/non-partiesto orig action?Keep

mutualitydoctrine forCE? (esp.offensive?)

-Judicialeconomy

litigate? Misallocation of resources Precedent (wheremutuality abandoned) was defensive CE, but hereoffensive.treat differently? Arguments against Off CE: 1.Doesnt promote same level ofjudicial economy as Def CE

(defincentive to join all possible defendants, whereas wait& see with off). 2. Off CE unfair to Def? D may not defend

against small damagesor if new procedure available in 2

nd

suitor if inconsistency with previous decision. But here,reasons to allow: 1. Not unfair or wasteful. Ds had full & fairopportunitytried harder. 2. Ps filed firstnot just waitingaround so as to avoid risk but reap benefits.

Now, does 7th Am apply? Claim 1 (SEC): Seeking onlyinjunctive relief, so no right to jury. But Claim 2 (Shore)seeking damages, so 7th Am concern Return toBeaconTheatersrisk of double deciding (judge/jury)? Normally, erron side of preserving juryKatchen: judge can adjudicate inequity prior to legal, even if 7th Am would later apply.Equitable decision can have CE effect on subsequent legalclaim w/out 7th Am prob. 7th Am arg n/a hereno need for

jury on issuebecause jury had already decided those issues.Right to ajury/1 chance. And 7th Am not rigid, so doesntmatter that Off CE not a cause of action in 1791

DISSENT: 1791: CE only for parties (mutuality). CE as a

judge-made doctrinecannot be consistent with 7th Am.Constitution is rigid: must preserve jury trial!Even ifno 7th

Am issue, the lack of jury fact-finding is unfair in this case.Strong federal policy favoring jury trial. Jury trial could easilyhave led to different result b/c procedural differences. So therewasproceduraldifference here (see McCurry)here that diffb/c judge finding evidence in claim 1 versus jurywhichcould make unfair, so no Off CE. Jury not merely neutral!And anyway, as far as efficiency prong of CE, not really a big

savings b/c you need jury to decide amount of damages,anyway. Judicial economy argument is moot

Cant really argue that didnt go all-out in first litigationparties knew importance of SEC suit

If Parklane had wonflippedcould have used def CE? NOb/c due process concerns (maybe other party did bad jobprosecuting)

CollateralEstoppel

-Exception:CE applying tononpartieswhensufficientlyrelated

(laboringoar)

-(nota privitycase)

Montana US was effectively in control, so sufficiently related; andsame facts, law; and no other prejudice. CE applies tononparties, too, when they assume control of litigation inwhich they have an interest & seek to redetermine. USexercised control over 1st decision, hereso although not aparty, suff. related to activate estoppel. Factors: 1. Same

substantive issues? 2. Controlling facts/law still the samesince then? 3. Special circumstances warranting exceptionfrom preclusion? US says facts different (#2) b/c differentcontractbut decision would have been the same despitecredit-seeking clause in new contract (that wasnt material todecision). No change in law since then (#2) Moser: Generallyno estoppel on matters of law in subsequent actions ondifferent demands, merely b/c the parties are the same.However, estoppel from disputingfacts, questions & rights


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decided, even if erroneous application of the law. Maybe nopreclusion if different subject matter when later issues of lawarise Moserexception may be fuzzy in application, esp ifpartial similarity of claims But here, no exception b/c samedemands

Joinder Permissive

joinderdeterminingextent ofsametransaction(Discrimination behavior?Perhaps aseries ofoccurrences?)

Mosley 20a/b

42b

(13a)

(23a)

DC abused discretion to sever. Parties were suff related

(below) R. 20a: may join in one action as Ps: 1) if asserting right

arising out of same transaction, occurrence, series and2)common questions of law or fact will arise in action. R. 20b &42b: allowing for separate trials. Discretion of court toallowreverse only if judicial abuse. Purpose of R. 20speed & convenience; finality. #1: Pursue on case by casebasis. No hard line. Guidance from R. 13a: transaction aslogically related. Dont need identity of events, justreasonably related. Here, Ps have asserted a right out of sametransactions/series: If state-wide system of discrim OK forjoinder (US v. Mississippi), then company-wide system OK,too. #2: Dont need all of questions of law/fact to be common.

23a as guide: Has been found that Title VII discrim is basic tothe class, so OK that diff class members suffering differenteffects of it. Right to relief dep on discrim injury; discrimcharacter of Ds conduct is basic to each Ps recovery, so OK.

So abuse in severity Not too complexcan separate trialslater if necessary. Joinder encouraged for expedience as muchas fairness will allow

Not being very flexiblenot giving much deference todiscretion of DC judgein construing facts & applying law

Same transactionssex discrim & race discrim??

DC could still order separate trials (R. 42) even though AppCt not allowing severing

Joinder Compulsory

joinderRule19: Make Psue Dstogether?

-Necessary v.proper v.indispensable

Temple 19

12b7 Joinder wasnt mandatory, though it was permissible (by

plaintiff). Joint tortfeasors notnecessarily joined in singlelawsuit. Synthes says joint tortfeasors = indispensable partiesunder R. 19b. Notes to R. 19a says that a tortfeasor with usualjoint-and-several liability is merely apermissive partydoesnt have to be joined. Temples getting his chance to fulllitigation. 19a1bii: Does it leave Def subject to doubleobligations? No

Judicial economy nottrumping in here R. 19 aspro-

plaintiff: still a fair degree of autonomy

Here, same claimant vs. separate Ds. Could have sued Dstogether under R. 20.

Meeting R. 19a1ain that partys absence, the court cannot

accord complete reliefamoung existing parties? Can Synthesmake argument that Temple might not get complete relief ifonly suing Synthes? What is complete relief?arising outof claim?

19a1biinotconcerned w/consistencyof relief

If Temple gets full compensation (if we could pinpoint thatthough thats nearly an impossible hypo) from one defendant,probably cant recover more from other

Joinder Compulsory Valley 19 Lords is necessary b/c 19a2iimpaired ability to protect


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joinder?:-Necessary v.proper v.indispensable

Narrow

interpretationofindispensable

Inconsistencyvs. prejudice

West 12b7 that interest in injunction againstif feasible Why notfeasible to join Lords? No personal jurisdiction

So passing 19b testcan the show go on without this

necessary party, or is party indispensable? Equity & goodconscience? Case-by-case question Would it be prejudicialto either VW or Lords (other parties)? No: Lords rights

w/VW not at risk here, so no prej to it. VW could be subjectto inconsistent obligations to H & Lbut thats because itdecided to make inconsistent leases. Inconsistency is a resultofits own actions, not of the courts procedure (relevant?)Certainly all the rights & obligations arising under a lease canbe adjudicated where all of the parties to the lease arepresent (conclusory?)

What if Lords files suit elsewhere & gets judgment? No suit

has been filed, and no evidence that other court would takeview different than this one. Lords was given chance tointervenechose not toso sufficient representation

We sometimes let the show go on even if inconsistent

obligations.Not the same as prejudiced: inconsistent

obligations is just a qualifier to get to the consideration ofwither prejudice

Court discounting potential harm to VW should subsequent

suit followpeeking at merits? LegitimateprejudgingVW before the case?

Impleader -Impleading a3rd P Defwhat kind ofliabilitynecessary?

-Plaintiff (non)autonomy

-Secondaryliability

Toberma

n 14

12b6 No R. 14/impleader as a type of defensecant claim another

party wholly/directly liable; only for secondary liability.(Allow chance to amend 3rd P Complaint)

R. 14 allows impleading of 3rd parties who may be liable to 3rd

Party Plaintiffs for all/part of orig plaintiffs claim against 3rd

PP/orig Def. For judicial economy: dont have people suingdown the line for liability; settle in one suit. R. 14 is for

secondary liabilitythat if D found liable, then 3rd

PD alsoliable to him under some theory of derivative liability. Atheory that another party is the correct defendant is notappropriate for R. 14 3rd P Complaintthats for an answer,not an impleader

Impleader in general: Compromising autonomy of plaintiff

for the sake of judicial efficiency

Impleader Impleading arelatedeither/or(supposedly)party, butwhen the right

claimedagainst 3rd

Party isseparate frommain claim

Joe

Grasso 14 Court agrees that JG & Capts cannot both be employers, but

not either/or: could be a third findingthat crew are self-employed. Thus, 3rd P liability doesnt depend on main claim(as required); rather, its its own, independent complaint, sono impleader.Claim to be construed expansivelyallowimpleader if Ds right against 3rd P are merely an outgrowth

of same core facts which determine Ps claim. *But noimpleader if independent, separate, even same core of facts

US acknowledges that no normal secondary liability here

but argues that should be impleaded b/c so related that in alllikelihood one of the two will be liable, & doesnt want to getwhipsawed in 2 suits, lose both because each defendant claimsit was the other. Court saying that if it were either/or, thenOK*but possible that fishers are independent contractors (infact, gov had argued this in a prior case), so fails. (*Sloppy


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dicta!either/or NOT same as derivative liabilitywontalways be appropriate)

either/or reasoning wrong b/c R. 14: part of claim

against itcaptains would be liable for different cause ofaction/claim, not part of same claim. Comp. w/McCormick(dram shop): driver couldnt have impleaded dram shop

maybe insurance co. (though not either/or in that case either)Intervention

Intervention asof right

American

Lung 24a2 R. 24a2: give deference to DCtrial judge has best feel for

case, familiarity with facts. Reqs for intervention as of right:1. Timely application; 2. Claiming an interest related toproperty/transaction with is the subject of the action; 3.Movants ability to protect interest is impeded/impaired notbeing party; 4. Unless movants interest is already adequatelyrepresented by parties. Here, #1 yes; #2-4 no. 2interests tooremote: based on double contingency of events (plaintiffsmust prevail, then EPA must downwardly revise). 3couldparticipate in rulemaking process, so not impaired. 4EPAwill adequately look out for interests. Utilities would presentno defenses unique from EPAs. EPA has statutory duty to

base decisions on knowledgeutilities can represent intereststhen, upon solicitation/in fact-finding

Narrower interpretation of related interest, impairment &

adequate representation. Contrast strictness/benefit of doubtwith Grutterdifference b/c of POLICY & PR MOTIVES?

Intervention

Intervention asof right (esp.question ofadequacy ofcurrent rep)

Grutter 24 R 24s reqs: 1were timely. 2subst. legal interest. 6th Circhas expansive view of intervention of right. D-intervs: Theirinterest is in education access (cont. use of race to boostadmission). Grutterassumed, w/out deciding, that had aninterest. Gratzsaid no interest that was legally protectable.24a2 does notrequirespecific legal/equitable interest dontneed legal right to the thing in question. Resolve toss-ups/close calls in favor of recognizing interest. 3

impairment. Minimal burden of proof: here, if interest, thensurely impaired by potential decline in enrollment. 4inadequate representation. Minimal burden again: Just showthat current party may not make all arguments intervenorwould. Stronger showing of inadequacy if current D = gov?Miller: no, still only might standard. D-Is: U-M might notarticulate some of intended defenses (pressures may keep itfrom referring to past discrimination)and may not defend aszealously (less at stake). DC: but D-Is dont propose anyspecific additional defenses they would present & UMwouldntBut minimal showing met here: UM less likely topresent evidence of some current admissions criteria

More liberal allowance of intervention: can intervene as ofright even without legally protected interest (just practical).

Not exactly counterpart to R. 19 necessary partiesR. 24

expanding R. 19s necessary circle a little bit (at least in 6th

Circ)

Policy choice to allow herenot wanting to look bad at not

letting minorities into suit

Dissent: UM would adequately represent. Give deference

UM probably not wanting interventionyes, liking show of


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support, but probably just more hassle in terms of actuallitigationbut not opposing b/c would be bad PR to not allowinclusion in a fight over inclusion (diversity)

Have to peek at merits before deciding on intervention,

insofar as having to decide whether prospective interveners

would present valid different arguments (for adequate repr)

-ClassAction

-SummaryJudgment

Class actionqualificationpassing 23a &falling under23b2 or 23b3?

Burden ofproof...genuineissuesummaryjudgment

Angelastro

23a

23b2/4

23c4a

56

Reqs of 23A: 1. Numerosity (satisfiedthousands). 2.Commonality (satisfiedby narrowing to single issue ofdocuments, which were uniform); 3. Typicality (satisfiedredundant w/commonality?...similar claims/defensesfactual& legal stance must be characteristicOK); 4. Adequacy(satisfiedP will fairly represent b/c a) good attorney & b)not antagonistic to rest of class)

23a passedstill must satisfy 23b. (23b1 no) 23b2: Seeking

inter alia inj. relief: disclosure, cessation of violation. D: denyfor 2 reasons: 1) class ended years ago, so cant seek inj reliefw/out current practices; 2) inappropriate when P seekingmonetary dmgs herself. No case law on #1but #2 bars P b/c23b2 only available when exclusively/predominantly

injunctive relief. 23b3: Common questions of law/factpredominating over individual matters?Not here.W/misrepresentation, burden of proof still on P (reliance not

presumed)so all members of class would have to proveimpracticable. No presumption of reliance, so no SJ b/cgenuine issue of material fact

Stricter policy on allowance of class action

ClassAction

Interlocutory Appeals

-Class actionsfacilitated?

-Worry aboutres judicatafrom another

(circumscribing) case privity (dueprocess ofpreclusiveeffect?)

-Potential probof Psshoppingaround statesto get classcert

-Reasons togrant, like/notinterlocutoryappeals(excludedsee brief)

Equifax 23 Three reasons to allow appellate review of class cert: 1)death knell cases for Ps where no suit if not CA b/c noteconomical otherwise. 2) just as denial of class cert can doomPs, granting class cert can force Ds to settle even if successon merits unlikely, since corporations not wanting to take riskof huge loss (mirror image of death knell). OK to review if

stakes out of proportion with merits. Interaction of procedure& merits OK for interloc appeal b/c otherwise would be toolate to review after final judgment. 3) Appeal facilitates thedevo of the law. Appellate decisions betterboth affirming &reversing. Pompous? Or legit b/c 3 judges not 1; betterresumes; publicity of appellate decisions; precedential effect(more consistency). The more fundamental the question, themore appropriate the review

Crawforddecision can be conclusive/binding on Ps ofBlair,

since they were subsetcould require thatBlairPs decertify,but not automatic Parallel class actions often overlapping,seeking same relief. When 1 parallel case reaches finaldecision, then RJ on the other But here, not yet final

decision in Crawford(on appeal). Yet sometimes, even if notfinal in parallel, may be abuse to press forward against partyin other case But not here, b/c Crawfordwasnt decided onmeritsjust negotiation.

For 23b2 suit, Crawfordwas a paltry settlementdid P sell

out to class members?...questions re: adequacy of repr.No judgment on validity ofCrawford, but enough questionsthat not barringBlair

Best way to avoid wasteful overlap in same district is to


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consolidate.BlairPs saying shocked to realize overlapnotsure who to believe. But Ds certainly should have known &moved for consolidation. Related casescome back to samepanel in future. For now,Blaircan proceed

Claim splitting problem ifBlairPs seeking to intervene inCrawfordwhile also pursuing against Equifax inBlair? (i.e.

doubling claims against Equifax in two suits?) No problemunder claim splitting before classes certifiedb/c not officiallysame parties (just members of putative class).

Proposed Crawfordsettlement seems collusive (not adequaterepr of other Ps). Would allow individual suits to follownot res judicata? No, b/c parties diff if indiv, not classseemsto bargain around RJ. Why not wanting to allow bargaining

around?efficiency for the court. Unless bargaining aroundRJ would be more efficient by facilitating quick settlement offirst claim

Class member vs. party in CAseffect on res judicata?

Still applying even though not same party? Yes, because inprivity w/party Comp. CA party-ness & due process

concerns with actual notice in service of complaint cases. ButseeHansberry!

-ClassAction

-Collateralestoppel

Due processproblem in CEapplication inclass action

-No preclusionwhen not partythere, noprivity,inadequacy ofrepresentation

-CA procedurevs. private suit(whether toallow classpreclusionwhenproceduredifferentpreclusiveeffect?)

Hansberr

y 23 Principle: no preclusion to non-parties b/c due processbut

exception of class actions. OK if members of class not partyto litigation (still can be bound) unless adequately representedor effectively represented

Narrow issue here

civ pro cases & issues

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