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CIV PRO II OUTLINE

Cooper

I. Amendments to Pleadings

a. One amendment as of right (Rule 15(a)).i. --Anytime before the files the answer.ii. Anytime before 20 days after the answer is filed, unless the action has

been placed on the trial calendar.b. Otherwise by leave of the court

i. To be freely given when justice requires.ii. Generally permission is given unless the amendment would prejudice the

other party.1. This is more than making it harder for the other side to win on the

merits.iii. Courts will take into account whether it is the requesting partys fault that it

needs to make the amendment.iv. Court also looks at number of time you have amended. Generally, the moreyou have amended, the less likely each subsequent request will be granted.

v. There may be concerns that if the amendment is offered so late in the gamethat it may prejudice the other party, like after discovery closes.

c. Relation back, if you attempt to amend afterthe statute of limitations has run, theadded claim or defense needs to relate back to what was originally filed.

i. Basically, you are looking back to see if the adverse party had notice fromthe facts pled that another claim or defense could arise.

1. So, you look to see if claim is based on the same core of operativefacts that were pled in the complaint.

2. If the addition is something like a change in the legal theory used onthe basis of the facts, it is more likely to be said to relate back.ii. Named changes or additions

1. You can change or add, even after the statute of limitations, if theparty has reason to know the suit was filed and that it should be a .

2. Exceptionif the real party isnt name due to fraud on its ownpart, then there is not a relation back problem even if there is nonotice.

d. Responsive pleading to the amended complainti. Ten days or the time that you would have otherwise had to file the

responsive pleading.II. Joinder of Claims (Rule 18)

a. Apermissive rule that allows a to join together all the claim that he has in asingle lawsuit.

b. The claims do not have to relate to each other in any way at all.c. There MUST be an independent jurisdictional basis for all of the claims raised.

(SMJ)d. There may be claims preclusion issues for claims arising out of the same core of

operative facts.

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e. The judge can always sever the claims into separate actions if he thinks that it willconfuse the jury.

III. Counterclaims/Crossclaims (Rule 13)a. Compulsory counterclaimsCounterclaims are compulsory if they arise out of the

same transaction or occurrence as does the opposing claim.

i. If you fail to raise the claim, then you cannot subsequently file the claim ina later action. You cannot commence new litigation.ii. Compulsory counterclaims fall in a Fed courts supplemental jurisdiction,

so there is no need for an independent jurisdictional basis.b. Permissive CounterclaimDoes not arise out of the same transaction or occurrence

as the opposing claim.i. These may be adjudicated in separate litigation.

ii. Requires an independentbasis of federal jurisdiction. It will not fall withinthe courts supplemental jurisdiction since it does not arise from the sametransaction or occurrence.

c. Crossclaims (Rule 13(g))

i. A party may assert a claim against a co-party (1 sues 2 or 1 sues 2) ifthe claim arises out of the same transaction or occurrence as the main claim.1. The test for a crossclaim is that it would be a properly brought

compulsory counterclaim.ii. No such thing as a permissive cross claim.

d. Determining if something is the same transaction or occurrencei. Generally, if there is some sort of logical relationship between the claims or

if there are common questions of fact and law, then you probably have thesame transaction or occurrence.

ii. You may get situations where to a common sense point of view they aresame transaction or occurrence, but if you refine it, they are not.

iii. So, you have to get into policy questions to determine if there should besame transaction or occurrence.

IV. Permissive joinder of parties (by ) (Rule 20).a. A may join together parties as s if

i. The claims against the s arise out of the same transaction or occurrence orthe same series of transaction or occurrence; and

1. Series of occurrenceslike Mosley v. GM, there were repeatedinstances of discrimination, a pattern and practice. This is a series.

ii. Any common question of law or fact will arise.1. This does not mean that all the issues of fact must perfectly overlap,

there just has to be some.2. A good way to look at this is that if nothing or no substantial

amount of what has to prove against the 1 is the same as willhave to be proved against 2, then the parties shouldnt be joined.

3. It is not enough to say that since the cause of action is the same orsince there is a mere temporal link that the same issues of fact or lawarise.

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b. i and ii are to be treated as separate inquires, but it will be extremely rare for aclaim to be presented that comes from the same transaction or series of transactionsthat does not raise the same issues of fact or law.

c. If a 2 s join a single or multiple s, once everyone is in the action, each s canraise as many claim as each has against the s.

i. So, if Cooper is injured by a city bus and is picked up by Mags, and then theboth of them are injured in an accident w/ a city garbage truck, Mags andCooper can both sue the city for the garbage truck incident. Rule 18 saysCooper can then assert his claim against the city for the bus accident.

d. Rule 21Misjoinder is not grounds for dismissal and claims can be severed andlitigated in separate actions.

e. The court may in either event split the claims into separate actions to preventembarrassment, delay or to prevent expense to a party which is not asserting ordefending a claim.

V. Impleader (Rule 14)a. A or 3d party may bring into an action, as a 3d party , any person not a party to

the action who is or may be liable to a third party for all or part of the s claimagainst the third party .b. Impleader is generally used in situations where contribution may be accomplished.c. What you are basically saying w/ impleader is that if 1 is liable, then 2 and 3

are also liable for all or part of the damages awarded.d. A third party may cross claim against any of the other like 3rd Party s.e. A 3d party may also bring any counterclaim against the /3d party .f. A 3d party may also counterclaim against the if the claim arises out of the

same transaction or occurrence as the subject matter of the suit between the andthe /3rd party .

g. may make a claim against the 3rd Party once brought into the suit if the claimarises out of the same transaction or occurrence as the subject matter of the suitbetween the and the /3rd party .

i. The 3rd Party may then raise any of the defenses provided in Rule 12 andany counter and crossclaims from Rule 13.

h. A 3rd Party may bring in a 4th Party that is secondarily or derivatively liable forthe damages if the 3rd party /4th Party loses.

i. /3rd Party may bring a 3rd party into the action as of right any time prior to 10days after service of the answer. Otherwise, leave of the court is required.

j. Basic test for impleader is that the is saying, If I am liable to for damages,then 3rd Party is responsible to me.

i. The cannot implead someone on the theory that You are suing the wrongperson. Its not me, its him.

k. See the Watergate example in the Y book.VI. Compulsory Joinder (Rule 19)

a. Three inquiriesi. Is there an absent party that should be joined if possible?

ii. If there is such a party, is joinder possible? (PJ over the party, wont destroyvenue or SMJ?)

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iii. If joinder is not possible, is the absent party indispensable, or may thelawsuit be structured in such a way that the lawsuit may proceed.

b. Who should be joined if possible? (Necessary Parties)i. Persons whose absence would prevent relief from being accorded among

those who are already parties. (Rule 19(a)(1))

1. Here you are looking at the effect on the parties that are already inthe case.ii. Persons claim an interest in the subject whose interests will be practically

impaired or impeded. (Rule 19(a)(2)(i))1. Ex. here is a lawsuit to reconstitute a pension plan.

iii. Persons claiming interest in the subject that are so situated that resolution intheir absence will leave a party subject to substantial risk of double,multiple, or otherwise inconsistent obligations. (Rule 19(a)(2)(II))

1. Example, A and C are claiming funds in Bank (B). There could betwo different actions against the bank (A v B) (C v B). The bankcould lose both and have to pay out monies to both A and B. This

would be a multiple obligation.2. This illustrates that you can join necessary s and well asnecessary s.

c. Is joinder possible? Consideri. Subject matter jurisdiction (Diversity)

ii. Venue;iii. Personal Jurisdiction

1. Note the 100 mile bubble for service of process under Rule 4(k).a. This is a partial long arm statue. If a party is joined under

Rule 19, then if the party is served w/ in a judicial district ofthe U.S. and not more than 100 mi from where the placewhere the summons is issued, then the court has personaljurisdiction over the joined party.

i. This means that you ignore state borders. Thus,making it possible for the S.D. Ind. court to be ableto reach into OH to attain PJ over someone who isnot ordinarily subject to PJ in Ind.

d. If joinder is not possible, is the absent party indispensable? Consider:i. Extent to which judgment without the absent party will be prejudicial to an

existing party or to the absent party.ii. Extent to which prejudice can be avoided.

iii. Adequacy of judgment rendered w/o the absent party.iv. Whether the will have an adequate remedy if the action is dismissed for

non-joinder1. Like in another court. We dont want to leave s w/o recourse.2. Statute of limitations problemif filed too late, then the may not

be able to refile in a jurisdiction where everyone can be joined.v. This is a balancing test. Other factors may be considered if applicable.

e. Joint tortfeasors are not indispensable parties.VII. Intervention

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a. Intervention as of right (Court must let party in if the party chooses to intervene)i. U.S. statute grants an unconditional right of intervention or

ii. Or 1. Application is timely

a. This is the only amount of discretion in this test.

2. Applicant claims an interest relation to the subject of the actiona. This is any legally cognizable interest, not just propertyinterests.

b. NRDC shows that if the interests are different enough andnot the same, even though similar, you can argue the interestwont be represented as well.

3. Disposition in the applicants absence may impair or impede theapplicants interest; and

a. This does not mean that the would be intervenor would bebound by the decision if he does not join.

b. Example is the NRDC cases where if the intervenor were not

allowed to intervene, he would be impaired because if thecase is appealed and the other side wins, as a matter of lawhe will lose since the facts will be virtually identical.

4. Applicants interests are not adequately represented by an existingparty.

iii. A party that is a necessary party under Rule 19 is most like a party that canintervene.

b. Permissive interventioni. U.S. statute grants a conditional right of intervention

ii. Or 1. Application is timely2. Applicants claim or defense has a question of law or fact in

common with the principle action.3. Court grants the permission in the exercise of its discretion.

a. Here courts will decide if the intervention will unduly delayor prejudice the parties already involved in the action.

iii. Reviewable only for abuse of discretion.c. There is no such thing as mandatory intervention. (Martin v. Wilks) A party can

always choose to commence litigation at a later date.i. Parties that could intervene as of right is probably a necessary party under

Rule 19, and as such, the already joined parties have the responsibility ofjoining all necessary parties.

ii. s in a second case are not bound by the result of a prior case.1. This is to say that they arent bound by the judgment2. There may be stare decisis effect of the decision that will settle

issues of law that wont be re-litigated though.iii. Just because a party is not bound by a decision does not mean that its rights

wont be effected by the decision.iv. Congress amended Title VII of the Civil Rights Act to say that if consent

decrees are considered in a C.R. case, and the court gives parties reasonable

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time to intervene and they do not, the consent decrees are binding on allsuch parties.

1. This only applies to people who know of the litigation and haveopportunities to make the arguments.

VIII. More Supp Jurisdiction

a. If a party gets into court in a diversity action, and it hopes that a party of non-diverse jurisdiction will be impleaded under Rule 14, joinded under Rule 19, orintervenes under Rule 24, he cannot use the courts supplemental jurisdiction tomake a claim against that party.

i. So, impleader, compulsory joinder, and intervention do not create ways toget around diversity jurisdiction.

ii. 1367 applies only to claims, so, the party could still be impleaded, joined,or intervene, there just cant be claims against parties that would destroydiversity.

1. 28 USC 1367(b) says no jurisdiction over claims byplaintiffsagainst parties that are joined under R. 19, intervene under R. 24, or

are impleaded under Rule 24 when exercising supp jurisdiction isinconsistent w/ diversity requirements.b. As a practical matter, there is no supplemental jurisdiction in cases where a party

attempts to intervene under Rule 24. Even if it tries to join as a and assert acounterclaim, this will fail.

IX. Interpleader a. Mechanism for bringing together all claimants to a common fund.

i. This deals with the problem of how to get everyone together into one court.b. Terminology

i. = stakeholderii. = claimant

c. Interpleader allows someone who owes something to one of two or more claimants,but isnt sure which, may force them to argue their claims among themselves beforesuing him

i. This prevents the stakeholder from being under multiple or inconsistentobligations.

d. Statutory impleader: 1335, 1397, 2361e. Rule Interpleader: Rule 22

f. Rule Implg. A good reason to use rule interpleader is if you have a stakeholder from one state

and all claimants are from another state.

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Rule Statutory

Diversity Complete Minimal (any 2 claimants afrom different states)

Amount in controversy >$75,000 $500

Service of Process Rule 4 provisions Nationwide

Venue 1391 (Normal Rules) Wherever 1 or more claimareside

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i. Another is if you have the thing and the claimholder are in one state, but theclaimants are diverse, but all in other states. Venue would be improper inthe first state under the interpleader statues, but under the normal venuerules, could be proper.

h. It is possible for the stakeholder to also be a claimant

i. The thing being claimed needs to be a discreet thing that is capable of beingdeposited with the court.j. Interpleader is not a bill of peace. It only settles disputes w/ re to the actual thing

that is deposited w/ the court.k. State Farm v. Tashire.

i. Insurance company cant use interpleader as a way to choose forums for thes. It can only use interpleader for the enforcement actions after judgmentshave been entered.

ii. Also, Greyhound couldnt get in since they didnt have a discreet pool offunds. They just have their assets.

iii. Parts of a case that are not taken care of by the interpleader cause of action,

cannot be litigated in the interpleader case. Interpleader case is limited onlyto the pool of funds.X. Discovery

a. Scope: Rule 26(b)(1)i. Party may discover any matter, not privileged, that is relevant to the claim

or defense of any party.1. Relevancy

a. Doesnt have to be overwhelmingly persuasive, it must havesmall tendency to make the matter at issue more or lesslikely

b. Matter discovered need not be relevant and admissible attrial if it is reasonable calculated to lead to the discovery ofadmissible evidence.

b. Limits on Discoveryi. While the broad rule is that anything relevant may be discovered if not

privileged, Rule 26(c) provides for any order that may protect against undueannoyance, embarrassment, hardship, burden, or expense.

1. What constitutes undue embarrassment or expense is determined bya balancing test.

a. The question is basically how beneficial will the discoverybe contrasted to the embarrassment, cost, etc.

2. Rule 26(b)(2) provides that the court may limit discovery that isa. unreasonably cumulative or duplicative or obtainable from

another source that is more convenient, less burdensome, orless expensive,

b. the party had ample opportunity to get the discovery sought,and

c. burden of the proposed discovery outweighs the likelybenefits.

ii. Protective orders to be used

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1. Denial of disclosure/discovery2. Disclosure or discovery may be had on certain conditions including

time and place3. Discovery may be had only by a method of discovery other than that

selected by the party seeking discovery

4. Certain matters may not be inquired into or scope of discovery isotherwise limited5. Sealing of information including info exchanged by each party,

depositions, and trade secrets.iii. You cant do top down discovery with corps. If you can get information

from a lesser and more convenient source you do that instead of simplygoing for the chairman or CEO right off the bat.

iv. Attorney/Client (A/C) Privilege1. Applies to communication between an attorney and his client.

a. Applies to clients that have retained the attorney and also thepre-retention prospective clients that have sought legal

advice.b. The legal advice part is key here.c. Comm. covers things said by client to attorney and vice

versa.i. It does not apply to items (like a murder weapon)

2. Test is if the party would be protected against disclosure at trial.3. Communications may only be disclosed with the clients consent.4. Generally, attorney client privilege is absolute and cannot be

overcome on a showing of need.5. Some comm. is not protected, like if you are talking about the case

at a crowded bar6. Client may disclose comm. without breaking the A/C privilege7. CorporationsIt is not just the upper mgmt that gets the benefit of

the A/C privilege. As long as the lawyer (Gen. Counsel or outsidecounsel) is acting in capacity of a lawyer, the communications areprotected with employees are in a position to ctrl or take asubstantial part in a decision about any action the court may take.

a. So, lower level people can have protected comm. with theattorney.

v. Work Product (WP)applies to anything done by and for a party or by andfor a partys representative.

1. Representative includes attorney, and also, doctors, privateinvestigators

a. Implied in this is that there are something that dont fit intoA/C privilege, like non-communications.

2. WP must be done during or in anticipation of litigation.3. WP privilege is not absolute.

a. Adverse party may obtain upon a showing of substantialneed and that it cannot obtain the equivalent without unduehardship or burden.

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b. Court must then protect against disclosing the attorneysmental processes, legal theories, conclusions, or opinions.

i. Ex would be a work product doc with attorneysnotes in the margins, you may have to disclose acertain do, but you make sure you dont disclose the

notes.ii. This is to prevent people from going to trial on thework of the opposing party.

iii. Also, as a practical matter, the court is going torequire a greater showing of need.

iv. Note, this provision only applies to attorneys.c.

c. Types of disclosuresi. Required Disclosures

ii. Asking questionsiii. Examining things and people

iv. Requests for admissions1. Here you ask for a specific responsed. Required Disclosures

i. Initial Disclosures1. Identity of persons on whom parties intend to rely upon to support a

claim or defense2. Documents (copies or descriptions) on which party intends to rely to

support or defense.3. Computation of damages and supporting materials4. Insurance policies the party may call upon to pay all or part of

judgment5. These must be turned over without the other party asking for them.6. Timing14 days after Rule 26(f) scheduling conference which is at

least 21 days after the parties meet.7. A party has a duty to update its initial disclosures as necessary.

ii. Expert witness disclosures (Rule 26(a)(2)). A party must disclose1. Identity of expert who may be used at trial2. Report of qualifications and opinion and bases for opinion3. List of other cases where expert testified as a witness4. Exhibits to be used at trial by expert in last 4 years5. All publications in last ten years.6. Compensation for study and testimony.7. Be filed with court at least 90 days before trial.8. Deposition is permitted if the expert is expected to testify at trial

(Rule 26(b)(4))9. If report is required, then no deposition can happen until the report

is made.10. For non-testifying experts, they cannot be deposed or have

discovery sought from them unless Rule 26(b)(4)(B) (theseprovisions are generally used for people that are delisted as experts):

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a. They meet the med requirements of Rule 35(b) orb. A showing of exceptional circumstances as to the

impartibility of getting the info from another sourcei. This will very rarely occur, probably only with

experts whose expertise is in a small, highly

technical industry or all other experts are employedby the adverse party.

c. Party seeking the discovery is to pay the expert a reasonablefee (this includes testifying and non-testifying) for his timespent and for non-testifying experts under 26(b)(4)(B), theparty seeking discovery must pay the other party for areasonable portion of the cost.

d.

iii. Pretrial disclosures

1. Witness lists2. Designation of witnesses whose testimony will be presented bydeposition

3. ID of documents and exhibits4. TimingAt least 30 days before trial

e. Interrogatories (Rule 33)i. Directed at a partynot simply witnesses

1. Must be signed by the person making the answers.2. Taken under oath

ii. Must be answered w/ in 30 days of receipt.iii. Limited to 25. One interrogatory is any question or discreet subpart of a

question. You cant just do 1(a), 1(b), and call each part of interrogatory 1.1. Tests to determine if different questions

a. How many places will party have to look to find the answerb. Do all the subparts relate to the same topic.

2. Judge may grant more than 25 or parties may stipulate for more.iv. ObjectionsYou state your objection to the question (irrelevant, privilege,

over broad, etc.) and then answer the remainder of the question, if any thatyou do not object to.

1. Objection to be stated w/ specificity.2. Objections to be signed by the attorney stating the objection.3. Business records option (Rule 33(d))

a. If business records can be used to ascertain or derive theanswer to an interrogatory, and using the records issubstantially the same for the party served as the partyrequested, then the served party can be provided theopportunity to use the records to form an answer.

b. You can resolve the dispute with the other party or you canfile a motion.

i. Protective order

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ii. Motion to compeliii. Depends on which side you are on.

4. Motion to compel may be used to get a better answerv. If too many interrogatories, you object to the number of interrogatories

served, not to individual interrogatories.

vi. Interrogatories are easy to generate but a pain to answervii. Much like pleadings, you dont want long run-on sentences or sentenceswith a lot of clauses because it will make it that much easier for theopposing party to evade you.

viii. Determining what counts as 1 interrogatory is an area where the districtcourt has a lot of leeway.

ix. Answering interrogatories1. First, figure out which ones you object to (relevancy, privilege, etc.)

a. You can give some info in the answer or object all together,just remember, you may be forced to answer later.

2. Next, go to the client and go through documents, talk to people, etc.

x. Interrogatories need to be framed in the right manner, i.e., the answer maybe privileged if answered one way, not privileged if you answer another.1. Like you cant get work product, but you can get to the underlying

facts.a. For example, if you have a binder of docs to prep a witness,

the binder is work product, but all the docs are discoverableby themselves. You dont make something protected byturning it in to work product.

f. Depositions (rules 28 (persons before whom deposition may be taken), 30(deposition on oral exam), 31 (deposition by written questions), 32(use in Ct)

i. Oral examination under oath1. No judge present2. May include non-party witnesses3. Perjury a possibility for lying deponents.

ii. Limited to 10 in number1. May ask the court for leave to take more depositions or parties may

stipulate for more (Rule 30(a)(2)(A))2. gets 10, gets 10.

iii. Notice1. Reasonable notice must be given to deponent and to every party in

the action.2. A non-party may be subpoenaed under Rule 453. Must include (to all other parties in the action)

a. Time and Place of Depositionb. Name and address of deponentc. Method of recording.

i. Another party may stipulate for another method ofrecording, but must pay for the recording at its ownexpense.

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iv. Objections1. May be stated by the attorney

a. Attorney may not instruct deponent to not answer thequestions (Rule 30(d)(1))

b. Objection on the record is enough to save the objection.

2. Deponent then answers the questiona. This prevents deposition to come to a halt every time there isa controversy.

b. Deponent does not have to answer the question if the answeris privileged.

i. If answer is privileged, you can stop the depositionand get a ruling from the judge as to whether theanswer must be had.

1. You cannot make the motion in the middle ofthe deposition and get the judge on the phoneto rule or you can simply go to court at a later

date and resume the deposition later.v. CorportationsYou can notice a corp. for deposition. Rule 30(b)(6)provides that in such a case, the corporation puts forth the person with bestknowledge of what happened.

vi. Video tape1. A legal way to record the deposition.2. May be used for emotional impact.

vii. Deposition by written questions (Rule 31)1. May be done for a party or a non-party.2. Questions are read to the deponent, who then answers the questions

orally.3. Advantagessaves money4. DisadvantageLose ability to have follow up questions

a. Question is asked and then that is it.viii. Party has opportunity to review record of the deposition if requested before

the depositions completion (by party or deponent). At such time, thedeponent will have time to review the record and make changes and givereasons for making them. The deponent shall then sign the deposition.

ix. Time and placedeposing party pretty much has control as long as it isreasonable. If there is not a reasonable time or place to depose, then younegotiate with the other party, if not, adverse party should get a protectiveorder.

x. Why depose1. Relevant info2. Gauge strength of opponents case3. See how strong the deponent will be on the stand (credibility,

sympathy, all that)4. Set up possibilities to impeach the witness.

xi. Dealing with liars1. Get a lot of info out

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2. Explore from different angles3. Depose others, get info from outside sources4. Your client as a liar

a. Inform of consequencesb. Attorney may not participate in a fraud upon the court.

c. If lawyer presents info he later finds out to be false, he musttake remedial measuresd. You can withdraw from the case if grevious enough.e. Problem is, all your communications are privileged, and you

cant disclose anything.i. Under the model rules, there may be ways around the

A/C privilege. Under the model code, yourobligation stopped.

ii. You may just call up the other attorney and say Ifyou want to retake the depositions, I wont object.

1. This implies lying, but protects the A/C.

xii. Deposition behavior1. Get changes to procedure in writinga. Without this, a deposition is a deposition and anything

permitted within the rules is allowed.2. Prep witness before hand.3. Dont lose your coolyoull lose concentration and make stupid

mistakes.4. Do not use profanity.5. Show that you are the one behaving reasonably.

g. Discovery is meant to be self-regulatingh. Discovery rules may be changed by the stipulation of the parties or on order from

the judge.i. Examining things/Production of documents (Rule 34, mainly)

i. May be sought by a party1. You can get documents from parties being deposed with a subpoena

duces tecum under Rule 45.a. Rule 45 also allows for land inspections of a non-party, but,

the provisions arent as broad as Rule 34 allows (testing,sampling, etc.)

2. Party must have possession, custody orcontrolof thedocuments/things/land

a. Note control, the party may not have possession of the docs,but may be able to get the docs since they control them, thisdoes not require a Rule 45 subpoena

ii. Items disclosed must be sought with reasonable particularity/specificity (notexact in detail)

1. You cant just say give me everything relevant2. This isnt a lot of particularity though since the point of discovery is

to get stuff from the other side that you dont know they have.iii. Responses due within 30 days of service of request.

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iv. No limit on types of docs you may request.v. You are trying to get documents that will defeat the oppositions claims.

They are already under a duty to disclose docs that they are going to rely onat trial.

vi. Sanctions for failure to disclose

1. Ct may deem fact established2. Court can refuse to allow into evidence3. Ct may inform jury of non-disclosure.

vii. Procedure1. Party can either hand over copies of the documents, or if it feels like

it and is not unduly burdensome, just open up the file room and sayhave at it.

viii. Request Strategy1. Like ACA, it is best to request documents from categories that

overlap. This will prevent the opposition from weaseling out ofsome of the requests.

2. Also, just because you have something doesnt mean it isntworthwhile to get the information the opposing party has.3.

j. Physical/Mental Exams (Rule 35)i. If a party puts their physical or mental status at issue in the case (or the

physical or mental status of a person in the partys custody or legal control),upon showing of a good cause, the court may issue and order for anexamination.

1. If the physical or mental status isnt put at issue2. The requesting party gets to choose the examiner.

ii. Examiners report (Rule 35(b))A party against whom the request forexamination is made (so, if the is being examined, it is the party beingrequested against) may get a detailed report from the examiner setting outhis findings, results of all tests made, diagnoses and connclussion. Uponreceipt of such report, the party against whom the exam request was mademust render upon the request of the party requesting the examination a likereport made previously or thereafter.

1. Rule 35(b)(2) provides that any doctor/patient privilege between theexamined party and his doctor is waived upon the delivery of theadverse partys examiners report.

2. Also, there is no privilege between the adverse partys doctor andones client. So, your client should understand this and not sayanything unless he has to.

3. Only med records dealing with the injury at issue have to bedisclosed under Rule 35(b).

4. These provisions apply even if the doctor taking the exam has beendelisted. The doctor does not have to be testifying to get the info.

5. This rule means that a report of some sort must be made. Its notenough to give the party a typed copy of the examiners notes. Thereport needs to be understandable.

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a. You may be able to get this by invoking the Rule 35language saying that the report implies there needs to beone or use 26(b)(4) to depose the nonlisted expert and saythat the exceptional circumstances require it because itcannot be understood otherwise.

iii. Make sure that things that are outside of the scope of the examinationrequest are cleared by the attorney. The problem is that the examiner is notthe partys doctor, and as such, he is not looking out for there best interest.It most likely wont be enough to get the partys consent. This generallyapplies where there is a written agreement.

k. Requests of admissionsi. May be sought only from a party.

ii. Must be responded to within 30 days (default rule)iii. Must admit, deny, or explain why no admission or denial is possible at this

time.iv. Admissions are conclusive for the case

1. You cannot later introduce evidence to rebut the admission unlessyou can convince the judge that you should be allowed to do so.2. Interrogatories distinguishedInterrogatories are only answers to

questions. They are answers only and do not conclusively establishany point and contrary evidence maybe introduced.

v. Many requests are used to authenticate docs.vi. Requests for admissions are generally done at the end of the discovery

processvii. Basically, the goal here is to get the other party to agree not to fight about

the issue at trial.viii. Requests for admissions require the opposing party to conduct a reasonable

inquiry into the validity of the request. It can only say that not enoughinformation is available to admit or deny until after a reasonable inquiry hasbeen made.

l. Compliance/Sanctions (Rule 37)i. Rule 37(a)(2)(A)

1. Parties must make a good faith effort to settle any dispute.ii. If that fails, then you file a motion to compel or a motion for a protective

order1. Here you say what you want and why you should get it.2. Protective orders are entered for discovery sought on motions to

compel.3. Sanctions available

a. Minor sanctionsi. Reasonable expenses, including attorneys fees in

filing the motion to compel.ii. Judge may excuse if:

1. No good faith effort to solve dispute w/o ctbefore the motion is filed.

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2. Resistance to discovery was substantiallyjustified (even if you later lose). This meansthat most of the time, you cant get sanctions.

3. Other circumstances make the award unjust.iii. If you then subsequently fail to abide by the courts order:

1. Order that facts be taken as established2. Order that claim or defense may not be supported or opposed3. Order prohibiting the introduction of evidence4. Order holding the disobedient party in contempt

a. Fines or jail timeb. Not available for violations of orders to submit to mental or

physical exams.5. Other sanction court deems just6. Default judgment.7. Attorneys fees and costs for ensuring compliance.

iv. Sanctions listed in Rule 37(b)(2)(A)-(C) are available without first filing a

motion to compel in the following circumstances Rule 37(d).1. Failure to appear for a properly noticed deposition2. Failure to serve answers to interrogatories3. Failure to serve a written response to a request for admission.4. The big guns that can be used here are basically everything but

contempt since there is no order of the court violated yet.v. Evasive discovery responses are treated as failure to respond under Rule

37(a)(3).

vi. Rule 26(g)All discovery requests must be signed by an attorney ofrecord. This certifies conditions similar to that of Rule 11.

1. Attorney making request is certifying the request is:a. Consistent with the Rulesb. Not interposed for an improper purposec. Not unreasonable or unduly burdensome or expensive.d. By signing a discovery response, the attorney is certifying

that the response is complete and correct when made after areasonable inquiry.

2. There is a duty to supplement discovery from Rule 26(e)(2)3. Sanctions under 26(g) may include expenses incurred as a result of

the violation, including attorneys fees. These are mandatory. Therule says shall.

vii. Strategy1. Dont do stupid stuff like withhold docs (see Chudasama v. Mazda)2. Discovery can get messy, so, you should comply with courts orders

at all times so you dont end up in the Mazda situation and end upwith a ton of sanctions and having to do an interlocutory appeal.

3. It is a dereliction of the courts duty to not rule on motions effectingdiscovery even though this is a self-regulating process

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4. Judges will often give discovery motions to magistrates who are notArticle III judges but can handle the minor disputes. They are Kjudges and cannot enter final judgment.

5. Generally, judges wont rule on discovery until all motions todismiss under 12(b)(6) or judgments on the pleadings are made.

This is because if you can get rid of one claim, that will narrowdown the scope of discovery.m. General Discovery stuff from Cooper

i. Rules contemplate that the parties will stipulate changes to the rules or thatthe judge will tweak the rules.

ii. Also, District Judges know that by and large they will not get overturnedsince to get overturned you have to prove that the judge was wrong and thatthe party suffered prejudice. Since this is argued after final judgment, this ishard to do.

iii. Also, judges have some discretion and have a couple rational choicesmeaning the judge has a bit of play.

iv. One thing you can do if you lose on a decision is a motion to reconsider.Youll probably lose on the issue, but you may be able to win if you canpoint to where the judge went against clearly established law.

XI. Ending disputes before triala. Rule 12(b)(1)-(7) motionsb. Settlementsc. Alt dispute resolution

i. MediationNeutral 3rd Party sits down as disinterested third party thathelps resolve the dispute.

ii. ArbitrationProceedings before a private judge and parties are bound bythe result. You can get before the arbitrator either by K before the disputearises or after dispute. Advantages are that arbitration is quicker andcheaper and private.

d. By court before judgmentXII. Default judgment (Rule 55)

a. Generally happens if the fails to appear.b. May be entered by the clerk of court if the fails to respond within the allotted

time.c. A default is simply an administrative entry on the docket. It is pretty easy to get it

removed. Basically, you just have to show that there is some sort of plausiblereason for not responding to the complaint in the required time.

d. A default cannot be used to attach a persons property or used to enforce in otherways.

e. Default Judgment may enteredi. By the clerk of court when

1. The claim is for a sum certaina. A sum certain means there is no factual dispute to the award

and is for something like liquidated damages.2. The is not a minor or an incompetent

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a. These people have to repd by someone and we dont wantto bind these people simply because there personalrepresentatives screw up.

ii. By the court in other instances1. This will generally require affidavits in order to establish the amount

of damages.2. Sometimes the court will conduct a hearing.iii. Meritorious defenseThere is no rule that a party has to show that it had a

meritorious defense in order to overcome the default. This is because dueprocess requires a right to be heard.

1. Some states have/use to have this no harm/no foul rule. It isunconstitutional.

2. In Peralta, not responding to insufficient process was consideredenough of an excuse to not appear and thus enough excuse to throwout the default judgment.

3. Process must be done with the formalities so that we are sure notice

is given, without proper notice, you cant sustain a default judgment.4. Courts prefer to solve cases on the merits and not have them thrownout on a technicality.

5. Also, allowing a trial on the merits allows a , even though he issure to lose, a chance to implead people liable for contribution,settle, etc.

XIII. Dismissal (Rule 41)a. Involuntary dismissal (Rule 41(b)).

i. Happens when fails to prosecute his case or fails to comply with courtorders.

ii. Operates as an adjudication on the merits unless the courts order statesotherwise.

1. This means that the will not be able to refile.b. Voluntary dismissal (Rule 41(a)).

i. may voluntarily dismiss by1. By filing notice of intent dismiss before files answer or motion for

summary judgment.2. Note there is no provision for Rule 12 motions. This is because the

lawsuit isnt really joined until the answer sets forth a challenge tothe facts.

ii. By filing a stipulation of dismissal joined by all parties that have appeared.iii. By order of the court if agreement of the parties cannot be obtained.

1. Claim will not be dismissed if other party has a counterclaim orcross-claim which was pleaded prior to the stipulation to dismissand dismissal would deprive the court of its jurisdiction over thecounterclaim.

a. Ex is if there is a counterclaim based on supp jurisdiction ina diversity action.

iv. Dismissal is without prejudice unless otherwise stated

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1. But only for the first dismissal, then for number 2 it is anadjudication on the merits.

a. This is to prevent s from being harassed.v. If refiles, the court may enter an order requiring the to pay for the s

costs associated with the dismissed action and stay proceedings until the

costs have been paid for.vi. Reasons why s agree to dismissal1. Hope that the will never refile2. Use it as more time to prepare.3. SettlementsIt removes the information from the public record.

a. This makes negotiations easierb. Stops the clock on stuff like discovery time limits and

pleading time limits.XIV. Summary Judgment

a. Elementsi. Moving party must be entitled to judgment as a matter of law

ii. No genuine issue of material factiii. All reasonable inferences must be drawn in favor of the non-moving party.1. Rationale inferences are the only ones that can be used. You cant

reach for inferences. If there is a rationale inference, then you givethat to the non-moving party.

2. If there is a rationale inference that you can make for the non-moving party that will give rise to a genuine issue of material fact,then summary judgment is inappropriate.

iv. Facts must be viewed in the light most favorable to the non-moving party.b. Summary judgment means that there is no way that a reasonable jury could find for

the non-moving partyi. It does not allow the judge to sit and determine who should win and who

could lose.ii. It is merely if the non-moving can prevail at all.

iii. So, if you give all benefits of the doubt to the non-moving party, and youstill cant find a way for them to win, then you grant summary judgment.

iv. You dont go out of your way to find inferences, but if it is reasonableinference for the non-moving party, you use it.

c. He said/she said situations are questions for the trier of fact. It is a genuine issue ofmaterial fact.

d. Evidence in summary judgment motions.i. Rule 56(c) says that you get to use affidavits, depositions, documents,

interrogatory answers when determining a summary judgment motion.ii. Unlike a Rule 12(b)(6) motion or a 12(c) motion for judgment on the

pleadings, you look to the evidence in the record.iii. This is why parties generally move for summary judgment after discovery.

e. Timingi. A may file a motion for summary judgment anytime after 20 days from

the commencement of the action (20 days post filing the complaint) (with orwithout affidavits)

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ii. A (or for a counterclaim, s in a crossclaim or a 3d party ) may filemotion for summary judgment at anytime.

f. If a motion is filed before discovery provides enough evidence to make adetermination, Rule 56(f) governs.

i. If a party cannot present affidavits to justify its opposition, court may refuse

to make judgment or give a continuance until there is enough time to getdiscovery, take depositions, or get affidavits.ii. Basically, you just need a plausible reason as to why you need discovery.

g. Affidavitsi. Must be made on the personal knowledge of the affiant.

1. This means a lawyer you cant introduce an affidavit that says told him that he say the sign a promissory note.

2. Affidavit needs to set forth reasons why he believes something istrue. You cant just have an affidavit that says you know the signed a note, for ex.

a. Say something like at a certain time and a certain place you

saw do X.ii. If you have a deposition where the said he knew something, that can beattached as evidence, but does not need to have a supporting affidavit,although many attorneys go ahead and do it.

iii. Rule 56(e) deals with form of affidavits. It doesnt apply until you actuallydo one.

h. Celotex testWhere moving party does not have the burden of persuasion at trial:i. Moving party must show that there is an absence of evidence in proving

the non-moving partys case.ii. Non-moving party must then establish by affidavits, depositions, etc, that

there are genuine issues of material fact on the elements of the non-movingpartys claim.

1. This doesnt mean that the non-moving party has to show that it willwin, it just means that it has to show that there is enough evidencefor a reasonable jury to find for it.

i. Summary judgment can be partial. It can be on an individual claim, or it can be asto the liability and then have a trial on damages later.

i. You can generally have summary judgment on like a counterclaim or crossclaim but not the main claim.

ii.XV. Burdens of Proof

a. Burden of PleadingBurden of raising an issue in the pleading stagei. has the burden of pleading the claim.

ii. has the burden of raising the counterclaim, cross claim, and third partyclaims.

b. Burden of production Burden of coming fwd w/ sufficient evid to allow a finderof fact to find in the parties favor. (can either be or on an issue)

i. This generally rests on the .ii. On for things like counterclaims or affirmative defenses.

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iii. This is just putting enough evidence into the record that would allow thejury to even make the conclusion. It doesnt mean entering enough evidencefor the jury to find more likely than not that your version is true.

c. Burden of persuasionBurden of persuading a fact finder on a given issue.i. This is basically used when the evidence is 50-50 between two possible

conclusions.ii. The party with the burden has to get over the 50% hump in order to prevail.Otherwise, the adverse party wins if there is a 50-50 split.

iii. The burden is on the in most claims. in most of the situations describedabove unless burden shifting goes on.

d. Normally with a given motion, the moving party has the burden of pleading,production, and persuasion.

XVI. Eriea. Rules of Decision Act28 U.S.C 1652 (2001).

i. The laws of the respective states, except where the Constitution or Acts ofCongress otherwise require or provide, shall be regarded as rules of decision

in civil actions in courts of the United States, in cases where they apply.ii. SwiftCreated problems since it was based on the theory that only statuesand laws that were peculiarly local. Case law was not law in a state, butevidence of the law. This is part of the idea that the law is just hanging outin the ether. This allowed for forum shopping to happen since federal courtswould apply a federal body of common law in diversity cases. They wouldnot use the case law of a state even when the law of that state clearlyapplied. If you filed in state court youd get one result and in fed, possibly atotally different result, even on the same facts.

b. Erie RR. v. ThompkinsHeld that in diversity cases, federal courts must applystate law as the rule of decision. State law includes case law and statutes.

i. This gets you substantive law from cases. A states substantive law controlsin a diversity case.

ii. Erie tells us whether to use federal or state law. It doesnt tell us whichstates law to use.

iii. Federal Common law now applies in the following instances1. Congress authorizes it2. Admiralty law3. Courts make common law that fills in the gaps of statutes passed by

Congress.iv. Erie was a constitutional issue, the argument is that Congress didnt give the

courts the power to make common law to regulate an interstate rr so itneeded to use common law to recover.

v. This is easy ErieIf in a diversity action, use state law, not federal law forthe substantive issue.

c. Guaranty Trusti. Illustrates the problem that arise when federal courts deal with the

procedural end of thingsii. Outcome determinative testDoes the rule significantly affect the result of

the litigation for a federal court to disregard the law of the state that would

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be controlling in an action by the same claim by the same parties in statecourt.

iii. Another way to state this is that if the state law only regulates the mannerand means of enforcing a substantive right, federal courts can use their ownlaw. If a different outcome would result, the courts should follow the state

law.iv. Procedural lawLaw that affects what you do in courtroom, its irrelevantin the outside world

v. Substantive lawLaw that affects what you do in the real world.vi. Real inquiry here is if the law is something that a litigant would choose

federal court over state court for. For example, paper size is outcomedeterminative in a way in that if you use the wrong size your complaintwont be filed, but litigators wont choose court on that strategy alone.

vii. Looking for rough uniformity, over the run of cases, you should get thesame result.

viii. Basically, rule here is to stop forum shopping

d. Byrd v. Blue Ridge Rural Elec. Co.i. Is the state rule bound up with the definitions of the rights and obligationsof parties or does it merely involve the form and mode of enforcing thoserights?

ii. If the state rule only effects the form and mode of enforcing the rights,would application of a federal rule substantially effect the outcome of thelitigation?

iii. If the outcome of the federal rule would substantially effect the outcome, isthe app of a f. rule nevertheless justified by a strong f. policy?

1. This means like an essential element of the federal judiciarya. 7th AmendmentIn suits at common law...the right of trial

by jury shall be preserved.i. Judge/Jury relationship is couched in terms of the 7th.

2. This is the balancing part of the test3. Problems result if the federal interest is strong and the state interest

is strong, unlike Byrd.4. So, in a case like Byrd, federal interest wins even if there is outcome

determination.e. Hanna v. Plumer

i. Rules Enabling ActREA says that the S. Ct. can make rules that do notenlarge or derogate a substantive right.

ii. Determining if a Fed. R. Civ. P. is valid.1. Does the Fed. R. Civ. P. fall into the Rules Enabling Act?

a. Does the FRCP really regulate procedure?i. Fed. Laws like the Rules trump state law, so, the

federal law has to be used where there is a conflict.ii. Occupying the fieldThe rules for an area are so

comprehensive that even rules that dont conflictwith them are trumped.

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iii. Does using the fed law promote forum shopping andinequitable administration of the law.

b. Its unlikely that the rule doesnt since the S. Ct. has not heldthat a rule it created falls outside the REA.

c. Remember the Rules of Decision Act is not the talisman of

state law.2. Is the Fed. R. Civ. P. constitutionala. S. Ct. has said yes. So, this is really a given.

f. Gasperinii. Stated that the problem was that while Rule 59 granted new trials, it did not

provide for how the trial judge should consider the motion and how theappellate courts should review the judgment.

ii. Gasperini shows that where the strong state interest comes into conflict w/the strong federal interest, the f. interest wins out and you accommodate thestate interest the best you can.

g. Coops flow chart

i. Threshold questionDoes an Fed. R. Civ. P. control the issue1. If yes, go to track 12. If no, go to track 2

a. Determining if the FRCP controls the issuei. First ask what the purpose of the state rule is

ii. See if it has the same purpose as a FRCPiii. Is there an FRCP, is it in direct conflict w/ the state

rule?1. Sometimes, its obvious, the FRCP directly

provides for the issue at hand (like form ofdepositions)

iv. Is the FRCP written so that is sufficiently broad orgenerally controls? Does it cover the field

1. But what if there is no conflict, like if thestate requires med mal claims to be pleadedw/ specificity?

2. If the Rule is sufficiently broad or generallycontrols, then you use the rule and not thestate law.

a. Like the med mal case, you look andsee that since Congress only providedfor heightened requirements ofpleading in only 1.5 cases, then theyonly meant to cover those situations.(this is the generally ctrl standard)

3. Occupies the fieldCongress or the Courtcreated a system so elaborate that everysituation was covered to the exclusion of allother rules, even the ones that dont conflict.

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a. Like discovery and sanction rules, therules are so elaborate, that it suggeststhe Court meant to exclude all otherrules.

b. So, a state rule that would apply a

sanction in a way that doesnt conflictwith a Rule per se is prohibited.ii. Track 1Does the Rule Comply with the REA? Does it really regulate

procedure?1. If yes, then the FRCP applies over any contrary state law.

a. This is only true if the REA is constal, and the court saysthat it is.

b. S. Ct. has never held that an FRCP is outside the scope ofthe REA.

c. Basically, ask here if the FRCP would regulate what peopledo outside of court.

2. If no, the FRCP is invalid, and the state law applies.iii. Track 2, question 11. Would the application of the Federal rule or practice be outcome

determinative in light of the twin aims of Erie? (avoidance of forumshopping, inequitable admin of the laws)

a. If no, apply federal rule or practiceb. If yes, proceed to next question

iv. Track 2, question 21. Does the outcome determinative rule or practice implicate an

essential feature of the federal judiciary?a. If no, apply the state rule or practiceb. If yes, apply the federal rule or practice, but only to the

extent necessary to preserve the essential federalcharacteristic

i. Here you try to accommodate the state standard, butif you cant, the federal standard controls

1. Only 2 essential characteristics named area. Trial by jury clause of the 7th

b. Re-exam clause of the 7th

XVII. Controlling the jury before and after the verdicta. Tools generally

i. Judgment as a matter of law (Directed verdict)ii. Judgment as a matter of law, after jury verdict (JNOV)

iii. Jury Instructions and special verdict forms1. Tells the jury what the law is so that the jury can apply it to the facts

as they find them.iv. Motion for a new trial

b. Directed verdicti. You can only move for judgment as a matter of law AT trial.

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ii. HistoryAt common law, only jurys could render a verdict, but if theirwas only one reasonable verdict, the judge would tell the jury the verdictthey would have to find.

iii. StandardRule 50(a)1. Court may enter a judgment against a party if there is no legally

significant evidentiary basis for finding for the non-moving partya. Non-moving party must be given an opportunity to be heardfully on the matters that are relevant to the issue at handbefore the party seeking judgment of a matter of law canhave the motion granted

i. So, if the thinks that it can win just based on thes case at the end of the s case, it can move fortrial then. Or it can wait until it rests if it wants.

ii. The always has to wait for the to rest before hecan file a motion for judgment as a matter of law.

b. Standard is practically the same as the sum judgment

standard.i. Obviously the entitled to judgment as a matter of lawpart is the same

ii. No legally significant evidentiary basis is the sameas saying no genuine issue of material fact.

c. Basically, we are saying that no reasonable jury could doanything but find for the movant.

iv. Summary judgment distinguished1. SJ generally done before trial.2. JML generally done at trial3. Bottom line, standard is the same, the timing is different.

v. Judges are reluctant to give a JML before the verdict.vi. Problem

1. If a significant part or all of the question involves a credibilityanalysis, then the judge cant grant judgment as a matter of law.

2. In these cases, the jury could reasonably find for one party or theother.

3. Also, the fact that the evidence is lopsided does not meant that youhave to find for the movant.

4. Direct evidence vs Circumstantial evidenceOne is not betterthan the other. Direct evidence with no circumstantial evidence doesnot necessarily beat a non-moving party with only circumstantialevidence

a. So, just because you have direct evidence doesnt mean thatyou will win.

vii. All reasonable inferences must be made in favor of the non-movant.viii. Look at the evidence in the light most favorable to the non-movant.

ix. Ways of looking at the directed verdict1. Look at the totality of the evidence, if you weigh it, no reasonable

jury could find for the non-moving party

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2. If moves, does the establish enough evidence that no reasonablejuror could find for the .

c. Jury Instructions (Rule 51)i. These come at the close of evid, and either before or after closing

arguments, but the judge can do it at either place.

ii. Jury uses the instructions in the legal framework the judge sets out.iii. Best place to start is with pattern jury instructions, which you are free todeviate from

iv. Court makes the instructions with the recommendations from the parties.Court has final say on the instructions. Parties object to the instructionsbefore the instructions are presented to the jury.

v. The jury then is read the instructions, which can take an inordinate amt oftime

vi. The jury cant take the instructions into the room with them, so really,whats the point.

vii. Render a verdictYes/No and a $$

viii. Special verdictJury is asked to answer a series of ordered questions thatlead to final conclusion.d. JNOV Rule 50(b)

i. Post-verdict judgment as a matter of law may only be granted if the partymoving for judgment

1. Sought judgment as a matter of law before the case was submitted tothe jury.

a. So you basically always have to file your Rule 50(a) motion,or you are going to get sued for malpractice.

2. Renewed the motion for judgment no later than 10 days afterjudgment from trial was entered.

ii. Standard of review is the same as for JML during the trialiii. Judge is getting around the reexamination clause here by ruling on a motion

that was made before the verdict was enterediv. JMLs generally arent granted before the case goes to the jury. Why?

1. Respect for the parties, its better for the non-moving party to hearthey are going to lose the case from the jury not the judge

2. Respect for juries, why did you make them come there if you arentgoing to let them render a verdict.

3. Also, most of the time, if a reasonable jury will reach that result, youthey will

4. If the JML at trial is appealed and that is overturned you have tostart over again; if you do JNOV, then the juries verdict getsreinstated, so the process is more efficient.

v. JNOVs are generally joined with motions for new trialse. New Trials

i. Rule 591. New trials may be granted for any reason for which new trials were

granted at common law.

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a. So, if it was ok in 1791 to give a trial for this reason, itskosher now.

2. (Bench trials) For reasons which rehearings have heretofore beengranted in equity in U.S. courts.

ii. Reasons for new trials

1. Flawed trialImproper influence on the jury (inadmissibleevidence, improper argument, etc.)2. Flawed verdict

a. Verdict is contrary to the weight (or to the great weight) ofthe evidence.

i. Judge should not sub his judgment for that of thejurys and only grant a new trial when he isconvinced the jurys verdict is seriously erroneous.

ii. Basically, this is the gray area of reasonability. Youare saying a reasonable jury could decide this way,but it shouldnt, so were going to do a new trial.

3. This is not the same as the summary judgment or directed verdictstandard.iii. A court should grant the motion if the jurys verdict was against the weight

of the evidenceiv. The court should not substitute its judgment for that of the jurys and only

award a new trial only when convinced the that the jury has reached aseriously erroneous result.

v. Motions for new trials are at the trial courts discretion.1. Thus, the Cir. Ct. should only review for abuse of discretion.2. They should not review the request de novo.

vi. Credibility analysis1. Lind v. Schenley seems to be saying that you cant have a new trial

where there is a credibility analysis. Cooper thinks this is wrong,since then it will only be the rare case where you dont also haveJNOV.

vii. Timing10 days from the entry of judgment. Court can also move suasponte for any of the same reasons in the same time frame.

viii. JNOVs and New Trials often come together. Thus, if both are granted, it islikely only the JNOV could be overturned by the Court of Appeals, so, youwould then just do the new trial.

XVIII. Appealsa. Who can appeal?

i. A party can only appeal an adverse judgment.ii. A party who got all of the relief they sought below cannot appeal even if

they lost on one of their claims. (Ex. sues under claim A and claim B foridentical relief, loses on A, wins on B. As long as all the relief is had, thenparty cannot appeal).

1. Article III says there has to be an active case or controversy in orderto continue.

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iii. If you did not obtain some form of relief that you wanted, or didnt get thefull amount of damages you can appeal. (Ex. you got all of your damages,but you didnt get your injunction).

iv. If the is still on the hook for liability, he can still appeal since he lost.v. Exception

1. Collateral concernIn a case like the one on 755, if the claim thatjudgment is based on matters, the court may hear an appeal. (Ex. sues on a fraud and a breach claim. Breach wins, fraud loses. If noappeal on fraud claim, the is in bankruptcy, and fraud claims getpref treatment, breach claims dont, so court may allow for anappeal to make sure the gets his money.

vi. So generally, for the , there needs to be something that she can ID asadditional.

vii. Cross-appeals is appeal the judgment and is appealing what theyvelost.

viii. Deference is given to the judges findings of fact.

b. What issues can be raised on appeali. Generally, the party must have raised the issues at the trial court.1. Appellee can support his position by anything in the record, even if

it wasnt raised at the trial court.ii. Exceptions

1. Fundamental change in the law between final judgment and appealand it is new argument that wasnt heard by the trial court.

a. Here, we are dealing strictly with the application of the law.2. Plain Error

a. This means the error effected the fairness, integrity, andpublic reputation of the judicial proceedings.

i. This is generally only used when the appellant hasnew counsel on appeal.

ii. Its a very narrow exception.1. So, generally you need to object many times

at trial so you can have an argument onappeal.

iii. When to appealFinal Judgment Rule1. 28 U.S.C. 1291

a. Final judgment ends the litigation on the merits and leavesnothing for the district court to do but execute the judgment.

b. Appellate court doesnt have the jurisdiction to even hear acase if there hasnt been final judgment or an exception tothat rule

c. Rule 54(b) allows for judgment to be entered on claimswhen there are multiple claims or multiple parties and thereis no just reason for not proceeding to enter final judgment.

d. Final judgment means not only that the issue of liability issettled, but also relief has been granted in that case (if the wins)

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i. So, if the wins on summary judgment on the issueof liability, that is NOT final judgment and notappealable unless as an interlocutory appeal.

ii. Liberty Mutual1. Arguments for final judgment that fail

a. Dec judgmentnot raised inpleadings as a type of relief requestedb. Treat as interlocutorynope, cert not

granted by dist court2. Exceptions to the final judgment rule

a. Interlocutory Appeals 1292i. District Court thinks the issue

1. Involve a controlling question oflaw as towhich there is

2. Substantial room for difference of opinion(close cases)

3. Immediate appeal may materially advancethe ultimate termination of the litigation.a. In normal situations, when the Cir Ct

gets the case, the d ct losesjurisdiction over the case, so, this hasto be a good case that the appeal willactually make things go faster

ii. Having persuaded the district court, you then have topersuade the court of appeals that this is a good idea.

1. This is discretionary.2. Usually done only when the issue affect the

merits of the case that needs to be decided.iii. District court doesnt have to completely stop

proceedings unless it or the court of appeals orders astay.

iv. Policies against interlocutoriesCAs are swamped,so, you shouldnt be allowed to appeal before finaljudgment.

b. Prelim Injunctionsi. Any order creating, modifying or removing an

injunction may be appealed immediately.ii. This is because injunctions, especially prelims, have

the greatest chance of harming the parties the most ifwrongly decided.

c. Mandamusi. Separate litigation against the judge of the district

court that is used to get an order to compel that judgeto do something.

ii. Used when

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1. To get the court to exercise its power when itis its duty to do so

2. To get the court to stay within the bounds ofits jurisdiction

iii. Original jurisdiction is in the court of appeals.

iv. Really, its like an interlocutory appeal.d. Collateral Order Doctrinei. Used where an order finally determines a claim of

right that is collateral to rights asserted in the actionand that are too important to require that appellateconsideration be deferred until the whole case isadjudicated.

ii. Generally used in cases where the right claimed hasno relation to the merits of the case.

iii. Test1. The order conclusively determines the

disputed question2. The order resolves an important issuecompletely separate from the merits

3. The order would effectively be unreviewableon the merits

a. Generally, to be unreviewable, theorder at issue involves a right, thevalue of which would be destroyed ifthe trial proceeded.

iv. However, this isnt a per se test. Just because thecase meets the test (Like the forum selection clausemeets all 3 elements in that case) it doesnt mean thect of appeals is still going to hear your case.

v. In addition, Justice Scalia says the right has to beimportant enough that the Court of Appeals will herethe case then.

1. Scalia also says that this also follows thepolicies of not wanting interloc appeals.

2. You need to have important enough orderssince if you didnt, people would try a COappeal every time they lost a 12(b)(2) or12(b)(3) motion.

3. Extensive costs of litigation are notsomething that justifies using a COD appeal.

vi. Collateral order doctrine is truly exceptional and isnot going to be granted except in a few cases.

vii. Examples of important enough claims1. Sovereign immunity2. Absolute official immunity (like the prez)3. Qualified official immunity

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4. Freedom from prosecution (crim)viii. COD is a judicially created exception to a statute, so

it is appropriately narrow.ix. Lauro lines lost, because they tried to use the COD in

a case where the couldnt use interlocutory appeals

because they werent putting forth an issue of law,just one about how fact applied to law.c. Scope of Review

i. Clear error1. Used primarily when the district court refuses a district judges

finding of fact at bench triala. Judges have to enter written findings of fact and

conclusions of law. It is those findings of fact that we aretalking about here.

2. Factual findings of a district court are reviewed for clear errora. A finding is clearly erroneous that although there is evidence

to support it, the reviewing court, on the evidence before it,is left with a definite and firm conviction that an error hasbeen made.

i. So, this is not the same as a summary judgmentstandard that says that a district judges finding hasto be upheld because a reasonable person could cometo that conclusion.

ii. But, where there are two plausible ways at looking atthe evidence, then you should look to the evidencethen the court of appeals should not overturn thedistrict judges determination.

iii. Anderson v. Bessmer city is an example of this.3. Clear error requires substantial deference to the findings of the

district judge.4. Rationales for rule

a. District judges can see the parties live so they may have abetter understanding of who is telling the truth and who islying

i. Social science refutes this pointii. This rationale applies even when the District Judge is

deciding facts from a written record.b. District judges find facts for a living. Its part of their job.c. Also, we want the trial to be the main event and not just an

audition (good catch phase to throw in for the exam)5. So basically, you dont get do-overs and a de novo review.

ii. De novo1. Legal conclusions of law are reviewed de novo.

a. Court of appeals reviews the district courts determinationsof law like it has never been decided before and is not

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required to give any deference to the district judge. It can ifit wants to, but it doesnt have to.

b. Rationalesi. This is what the Court of Appeals does

ii. Division of labor, CA does law, district does facts.

iii. Court has better sense of the law as a wholeiii. Abuse of discretion1. Discretionary determinations are reviewed for abuse of discretion.

a. Some things are committed to the District Courts sounddiscretion.

i. This is stuff like discovery, sanctions, other stuff.b. Typically applies where many factors must be balanced, or

where the court must decide what the appropriate course ofaction is after a legal or factual determination.

i. Like a motion for a ruling on a new trial.2. Difference between abuse and clear error

a. As a practical matter, there is no difference in the standards.But, you will have to use the right term before the court, oryoull look like an idiot and get taken to task.

XIX. Claim Preclusiona. Claim preclusion generally

i. You cannot relitigate what has been done and brought to final judgment.ii. If you bring a previously litigated claim or a claim that should have been

litigated previously, the entire claim will be dismissed.iii. Rationales

1. Efficiency (weve done this before/the determination has beenmade)

2. Fairness (you had day in court and an appeal to correct what wentwrong)

3. Respect for final judgment4. Avoidance of inconsistency (2 cts made different determinations,

how do we know which one is better?)b. Elements

i. Same Claimii. Same parties

iii. After a final judgmentiv. On the merits

c. Same Claimi. Restatement (2d) of Judgments

1. All claims between parties that arise out of the same transaction oroccurrence or same series of transactions or occurrences areprecluded.

a. Once an action goes to final judgment, if there was anotherclaim arising out of that transaction or occurrence, that wasnot raised, it cannot be litigated ever.

ii. Same evidence test (Indiana and Illinois)

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1. No claim preclusion unless the evidence needed to sustain ajudgment in the 2d case is the same that was required to sustain ajudgment in the first case.

2. This is a much narrower approach than the restatement approach andallows people to just change the legal theory to get around claim

preclusion.3. Any time you present new evidence, youve gotten around the claimpreclusion issue.

4. Illinois says that if the claim comes from the same core of operativefacts it is precluded, but this seems to be distinguished from therestatement of judgments test.

d. Issue is generally raised as affirmative defense and disposed of in motion ofSummary Judgment or in a motion for judgment on the pleadings.

e. Federal Courts use the issue preclusion standards for the state they sit in becausethe full faith and credit statute tells them that they have to do so.

f. Jurisdictional limits

i. Suppose a brings a claim in a muni ct where the statutory ceiling is $5k.He loses, and then files in Federal Ct, he is precluded, based on the tests,even though he couldnt have brought the larger claim in Federal Ct. Aslong as there was an appropriate court where he could won and received fullrelief he is precluded.

ii. But, if there was a state law that said a replevin action had to be brought instate court, then he could argue that he had to file there if he wanted torecover at all on that cause of action.

iii. It is up to the to pick the appropriate forum where he can get all the reliefhe seeks.

g. Formal Restatement testi. Where there has been

1. Final judgment2. on the merits3. between the same parties (identity of parties)

ii. one of the parties cannot initiate a suit asserting1. the same claim or2. a different claim arising out of the same transaction or occurrence if

that claim could have been brought in the first action.h. Consistency

i. Claims that normally would have been compulsory counterclaims, but therenever were pleadings filed by the .

1. Marinoa. Here, he loses in the 1st action on a breach claim by settling

with a consent decreeb. Files a 2nd action on an anti-trust claim saying the very K he

was sued under was illegal.c. This would have been a compulsory claim, but there were no

pleadings filed so Rule 13 doesnt kick in2. In such a case, the now- cannot file the second action

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a. Fairness concerni. Now- said that the litigation was over because he

had signed the consent degree stating the litigationwas over.

b. Efficiency

i. Now- could have already brought his claim earlierbut he chose not to litigate any more.3. This isnt technically a claim preclusion test, but its similar enough

such that the rationales still apply.i. Identity of parties

i. Normally, you look at the caption and just look to see if the parties are thesame.

ii. Twist is privity1. If a party in the second suit was not a party in the first suit, he will

be precluded if the same claim test is met and he is in privity with aparty in the first cases.

2. Privitymeans that you have mutual or successive interests.a. Or you could say that a person is so identified in interestwith another that it represents a single legal right.

b. An example of successive would be litigation regarding aneasement or covenant lost by the owner in the first case andthen brought by the person he sold to in the second case.

c. Concurrent ownership interests in land are not enoughi. So, if A has a 50% interest and B has a 50% interest,

those are not mutual or successive interests in theland.

d. This can sometimes lead to inconsistent results, but the ifyou did otherwise, there could be due process concerns.

i. For example, in the Searle case, the sons could notbe joined to the original action since it was a divorceproceeding and they werent allowed to intervene.

ii. The boys could have participated as witnesses, butthats not the same as being a party since you lackadvantages like being able to bring your ownevidence and cross-examine the other partyswitnesses.

j. Other requirementsi. Final judgment

1. Occurs when the judge files a piece of paper with the clerk of thecourt.

2. What to do on appeal?a. Under the federal rules, a pending appeal has no effect on

the final judgment and any claim filed during the pendencyof the appeal is precluded.

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b. When a final judgment is released by appeal, some statespostpone judgment on claim preclusion until after the appealis over, the Federal Rules say

3. Claim preclusion is not a rule against multiple litigation, there areother doctrines that deal with that.

k. Judgment on the meritsi. Motions for summary judgments and trials obviously are.ii. Any dismissal of the case except for the following is a dismissal on the

merits1. Voluntary dismissal by the (first time only)2. Dismissal for lack of PJ3. Dismissal for lack of venue4. Dismissal for failure to join a party under Rule 19.

iii. A court can say in most motions that the dismissal is without prejudice.However, if it does not specify the dismissal is without prejudice, the matteris dismissed with prejudice, as that is the default rule.

iv. Discovery sanctions are dismissals upon the merits, what kind of sanctionwould it be if they could just go back and refile.v. Judgment on the merits where the original court didnt have subject matter

jurisdiction1. Federal courts must apply state law in deciding if there is claim

preclusion2. Federal courts have exclusive jurisdiction with copyright,

trademarks, patents and securities.3. If the federal court determines that the state court didnt have

subject matter jurisdiction in the first case, then the final judgment4. is a nullity, and the federal court doesnt have to give preclusive

effect to the judgment.XX. Issue Preclusion

a. Elementsi. When

1. an issue of fact or law2. actually litigated and determined3. a valid final judgment4. the determination is essential to the judgment

ii. the determination is conclusive whether on the same claim or in differentclaims.

b. Issue preclusion requires identity of parties with some broad exceptionsc. IP only bars the relitigating issues, it doesnt stop you from filing the claim.d. Actually litigated does not mean what it does for CP. It means that the issue had to

actually be decided, not just dismissed as a discovery sanction or something.e. Same issue

i. Only applies when all the elements of the issue were litigated in a priorclaim. Narrow doctrine.

ii. Burden of proof1. The burden matters, examples

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a. If you are tried and acquitted in a criminal case on an issue,that issue isnt precluded in a civil action since the burden ofproof is lower there

b. If you are tried civilly by the govt, and it wins, then youarent precluded at the crim court since theres a higher

burden of proof.c. If you are tried and convicted in criminal court on an issue,and then you are tried civilly, the issue is precluded since thecriminal standard of proof includes the civil one.

i. If the burden of proof is the same or equal to andmet, then the issue is precluded.

f. Actually litigated and determinedi. Generally, this is easy to decide if it bears on the outcome

ii. However, there are situations where the jury could have decided the casethe same way on alternate grounds

1. The fact that no evidence is presented on one ground does not mean

that he jury found for the party on that ground since it could havecompletely rejected the other partys evidence.2. Special verdict forms can solve this problem because then you know

the jurys reasoningg. Essential to the judgment

i. Where there are alternative grounds the jury could have decided on, thenneither issue is essential to the verdict.

ii. Rationale1. Incentive to appeal

a. IP is based on the notion that the first time and issue wasdecided, it was decided rightly.

b. When you have alternative grounds to appeal on, thechances the court of appeals will reverse the final judgmentare slim since it would have to find for you in both and bothwill generally require clear error review.

c. Other issue is that if the jury found on the one ground first, itmay not have paid attn to the 2d ground so it could get out ofthere.

iii. On appeal1. If you have a situation where the district court dismisses for lack of

SMJ and lack of PJ, if on appeal the court finds no SMJ and passeson the question of PJ, there is still no preclusive effect since bothissues were determined in the same case.

2. If on appeal both of the reasons for dismissal are upheld, then thereis preclusive effect as to both issues since the appeal rationale hasbeen abrogated here.

a. Once you have an appeal, you dont have to worry about theissue not being decided rightly.

h. Non-mutual issue preclusioni. 4 possibilities

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ii. sues 1 and loses. Then sues 2 and raises the same issue1. Result, 2 can assert issue preclusion against 2. Defensive IP. had full and fair opportunity to litigate and lost, so

its not fair to let him keep suing an endless supply of s. Thispreserves judicial resources.

iii. sues 1 and wins, then sues 2 and raises same issue1. Result, cannot invoke issue preclusion against 22. This is offensive issue preclusion. You cant use it since 2 didnt

have a full and fair opportunity to be heard in the prior action. DueProcess violation if 2 was precluded.

iv. 1 sues and wins. 2 sues , raises same issue1. may not assert IP against 2 .2. Defensive claim preclusion doesnt work here since 2 did not have

a full and fair opportunity to be hear in court. This is another dueprocess problem.

v. 1 sues and wins. 2 sues and raises the same issue.

1. Result, can use offensive IP sometimes.2. Factors to considera. Incentive to litigate vigorously in the first lawsuit

i. Some times the incentive is low like where there is alow jurisdictional amount or where damages in thefirst suit isnt great and the company is big, and the doesnt foresee the massive suit coming down thepike

ii. If you have a govt enforcement action, then you aregoing to have incentive to litigate since everyoneelse is going to be knocking on your door afterwards.

b. Existence of other inconsistent resolutions on the issuec. Degree to which issue preclusion would encourage multiple

litigationi. In some cases, if you allow the IP, then that will

actually encourage more lawsuits, many of whomwill be freeriders.

ii. This encourages a wait and see attitude towards thelitigation.

d. Existence of procedural opportunities in the first lawsuit thatwere not present in the first lawsuit.

i. An example could be being in a municipal court withlimited discovery opportunities.

e. This decision is left to the discretion of the district judge.i. Exceptions to issue preclusion rules

i. Party against whom the lawsuit is brought didnt have an opportunity forreview of the judgment in the prior action

ii. Issue is one of law and (a) actions involve claims that are substantiallyunrelated or (b) a new determination is warranted to take acct of interveningchanges in law or to avoid inequitable admin of the law.

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1. So, if you have a change in the law, you apply the new law to thenew case, not old law.

iii. New determination is warranted in the quality or extensiveness ofprocedures followed in the 2 fora or by factors relating to the allocation ofjurisdiction between them.

1. For example, general jurisdiction courts wont give small claimcourts judgments preclusive effect.iv. The party against who preclusion is sought had a significantly heavier

burden of persuasion w/ re to the issue in the initial action than in thesubsequent action the burden has shirted to his adversary; or the adversaryhas a significantly heavier burden than he had I the first action....