Civil Procedure – Metzloff – Fall 2011 Outline

Goals of civil litigation: fairness, efficiency, thriftiness Conservatives: pro-business, tort reform Liberals: accountability, punishment

Punitive damages Used to deter D + other people from repeating

o Larger amounts necessary for very wealthy Goal is not to compensate the P Punishes particularly egregious behavior on top of compensatory damages Main D argument against punitive: due process (14th amendment) Difficulty in determining when and how much to award

o Weak line drawn near 4x compensatory for punitive (Pacific Mutual)o Inquiry should include both the harm likely to result as well as the harm that

already has occurred (TXO)o Judicial review to control punitive damages is allowed (Honda)o State generally can’t impose punitive damages for acts outside of jurisdiction

(State Farm)o Dissimilar acts also may not serve as the basis for punitive (State Farm)o Can’t punish for harm to others but can consider in reprehensibility (Phillip

Morris)o Three factors to evaluate fairness of punitive damages (BMW):

Degree of reprehensibility – how bad was the action, most important Economic v. safety Repeated prohibited conduct Purposely misleading Trying to clean up may mitigate (Exxon)

Ratio of punitive to actual damages – don’t want to “overdeter” Single digits more likely to comport with due process (State Farm) 500:1 raises judicial eyebrow Exception: when very egregious but low compensatory

Sanctions for comparable misconduct – is it in line with what civil/criminal would have been

Q if less drastic measures would be enough to detero Reform options: cap on damages, eliminate punitive completely

Pacific Mutual: Pacific insurance agent sold city policies and kept money for himself, leading to cancellation of policies. P got hurt and had no insurance, sued claiming Pacific responsible for agent’s actions. Argument over if amount was appropriate, 4x line drawn.

TXO: company enters into contract for rights to drill, raises questions about ownership of land, P accuses of attempting to defraud. Actual damages: 10k, punitive: $10M. Okay considering potential harm

Honda Motor: P injured on ATV, sues and gets 500k actual, 5M punitive. Oregon said court couldn’t reduce amount of award – limit on judicial power. SCt disagrees

Gore v. BMW: top of car repainted, undisclosed and later discovered. Quality of work not as good, lowered value. Statute for repair disclosure different between states, BMW’s policy was >3% no disclosure. Sct says excessive, lays down three pillars. Unusual situation with states’ rights/interests, federalism argument

1

Exxon: didn’t count into amount damages already paid – want to support this effort State Farm: Campbell got in accident, State Farm wanted to fight it in court instead of paying, they lose,

Campbell on hook. He sues for bad faith, evidence that State Farm did this in past. State needs jurisdiction, excessive

Philip Morris: smoker died, company hid research about health risks. Distinction between harm to others + reprehensibility

Jurisdiction Jurisdiction is power Lack of jurisdiction dismissals can be granted even late in trial – it’s about legitimacy of

court Four elements to jurisdiction:

o Subject matter – authority to hear type of disputeo Personal – power to force people to appear in certain courto Venue – which specific court in a system can hear a caseo Personal service – officially notifying D

Considerations in forum shopping:o Convenience of travelo Familiarity o Jury pools – more varied in federal than in stateo Speed – federal generally faster, varies by state alsoo One judge – federal has one judge, may be preferable for complex issueso Attorney control – more regimented in federalo Out of state – prefer federal for tenure, lack of election, lack of bias towards localo Expertise – federal better for fed law, state for states

Subject matter jurisdiction Diversity jurisdiction Amount in controversy requirement: claim for more than the required amount will be

accepted if made in good faith, unless it is legal certainty that claim is for less o 1996: $75,000 – not so high that restricted to only rich, but enough to not have

petty caseso Not set by constitution, but by statute in order to be selective with caseso Burden on P to support with facts creating jurisdictiono Single P must aggregate all claims to meet requirement, co-P cannot add to sum

Exception: p1 meets req, p2 can tag along even when not meeting req Can drop defendants to preserve diversity People Article III authorizes federal jurisdiction in cases between citizens of different states

o Also for between citizens of different countries Rationale: founding fathers were wary of regional bias Citizenship of parties at the time action commences is controlling Domicile test: citizenship depends on domicile. Residency + intent to live there

indefinitely makes place your new domicileo Defined in terms of subjective intento Doesn’t need to be intent to stay permanentlyo Can be supported by objective evidence (driver’s license, voting registration, etc)

2

Complete diversity rule: all P’s must be citizens of different states from all D’s Generally, wife has same state citizenship as husband

o Exception if husband is citizen of other country Corporations Corporations are citizens of state in which it was incorporated (DE?) and the state where

it has its principal place of business – dual citizenship Must be incorporated and seen as one – not unincorporated associations Test to determine principal place of business:

o Nerve center – corporation’s headquarters, where direct, coordinate, control of corporation’s activities occurs

Simple to apply compared to percentage of business (which would usually lead to CA b/c of population advantage)

Pro-D, gives corporations more choice in venue, easier to get in fed through manipulation

Leads to increase in fed cases, crowding of docket Federal Question Jurisdiction State courts fully competent to handle unless Congress says otherwise

o Some issues reserved for fed to handle – antitrust, admiralty, patent, securities Question of what counts as “arising under” Constitution/US laws Old Osborn rule: As long as there is some federal ingredient in claim or answer, A3

grants fed jurisdiction – made obsolete by Louisville Well-pleaded complaint rule: case arises under federal law if the federal issue appears on

the face of the well-pleaded complainto Cannot get jurisdiction by anticipating defense will invoke federal ingredient o Jurisdiction cannot be based on a counterclaim – would allow D removal of P’s

choiceo Declaratory judgment: look at threatened action, not defense

Alt: Holmes’s creation test: a suit arises under the law that creates the cause of action Exception to Holmes:

o Shoshone Mining: federal statute authorized suits, but state law appliedo No fed juris

Exception: case that asserts state law claim may go to federal court if claim necessarily depends on resolution of a substantial question of federal law

o Must be contested, substantial federal issue with serious federal interest in using federal forum – outcome determinative?

o Must be consistent with congressional judgment about division between state + fed courts - potential for disrupting balance of state/fed

Absence of private right of action relevant but dispositive to congressional intent – argue purposes here

o Also may consider impact on federal courts’ docket Removal Process by which D sued in state court can remove certain cases to federal court Can only remove if original case could have been filed in federal court

o Reference to federal law not enough, need to bring federal claim Must be done within 30 days of receiving initial pleading/served with process All D must agree to remove

3

P strategies: include non diverse defendant to lock it in state court, sue on state claims only + leave out federal claims

o If P later adds a claim, new 30 day removal period – prevents wily P

Gordon – P was citizen of PA, injured wrist, is wrongfully treated there, enrolls in Idaho college, filed in fed for diversity. Domicile test applied, intended to stay – citizen there

Mas – two way mirror peeping by D in LA, husband P citizen of France, doesn’t make wife French. Never changed to LA citizen since no intention to stay indefinitely

Hertz – D headquarters in NJ, plurality of business activities in CA, ct adopts headquarters test Diefenthal – P told they would have to sit in no smoking section (rudely?), court says they don’t meet $10k

limit, failed to support with facts Osborn – federal ingredient rule adopted for taxing of national bank, fed bank involved = ingredient Louisville – settlement caused P to get free passes, after act – no more freebies, P anticipates that D defense

will involve 5th amendment (deprivation of property without due process) – new wpc rule, must be in original claim

American Well – P sued because D said P had infringed patent. Although involving patents, was a tort claim for slander. Claim was created by state law

Merrell Dow – Bendectin claim, 6 state claims with negligence per se element based on violation of labeling act. Majority says no private action based on violation of act, backdoor to federal court if allowed. Dissent: strong interest for federal ct to resolve

Grable – IRS seized P‘s property, sold to D, P later said D title was invalid because IRS improperly notified of seizure under federal law. Clarified Merrell Dow, placed conditions on allowing embedded claims

Avitts – filed suit in state court to recover for injuries, removed to fed court. P only invoked state claims, no fed jurisdiction

Personal jurisdiction Judicial authority to require a defendant to appear + defend in a forum Can be waived by the D, unlike subject matter – personal defense, not court limitation Special appearance: can show up and challenge jurisdiction without being served In personam v. in rem:

o In personam: jurisdiction over person, can bring judgment against all assets that D owns

o In rem: court asserts control over D’s property in specific state, can sell if D loses claim, had to be attached prior to lit. Used when D not there

Old Pennoyer rule: states have jurisdiction over people and property within its territory. No jurisdiction outside of it. Can’t summon people domiciled in other territories.

o Full Faith and Credit: other state courts would ask if original court had jurisdiction: yes -> enforce, no -> refuse

Could have sued in state in which D inhabited insteado Underinclusive, could escape jurisdictiono Heavy focus on D’s rightso Exceptions: status changes (marriage), consent (explicit, implicit), physical

presence (grab) – can still grab Modern approach, International shoe: to subject to in personam, D must have certain

minimum contacts or ties which make it reasonable to defend suit in that stateo Must be consistent with traditional notions of fairness and justice: look at relevant

factors (along with contacts): Burden on D Forum state’s interest

4

P’s interest in convenient forum Efficiency – witnesses Federalism concerns

Brennan’s idea: don’t focus on D so much, focus on more than contacts – look at overall picture

Foreseeability for D important but not dispositive – being able to predict where you can be sued

o Boots Pennoyer, now personal jurisdiction over D even if not within stateo Reasoning: D enjoys benefits of being in state, also gives rise to obligations. D

protected from burden of litigating in inconvenient forum (can control where they direct activities in order to limit exposure). Controls reach of state courts

o Long arm statutes (before constitutionality): Statutory authorization that determines how much personal jurisdiction

courts have Due Process clause limits personal jurisdiction, long arm statute limits it

even more Some states explicitly describe what cases their courts can hear (NY, OH)

– possibility of limiting Several states (AR, CA, RI) go to limit under constitution Federal court bound by state court PJ

o Specific in personam: Must arise out of or be related to D’s deliberate contact with the state

Hanson synthesis – there be some act by which the D purposefully availed itself of the privilege of conducting activities within the forum State

o Purposeful meaning act or intent? Ex: accidentally entering Arises out of – effects test, purposely directing activity towards

state + making effect in that stateo Not enough to merely send content into many states, had to

specifically direct towards forum state If sold chattels can create jurisdiction, you can get sued anywhere the

chattel goes – unforeseeability Concern about unilateral activity by P + ability to “create” jurisdictions

Stream of commerceo Manufacturer makes component in one state, sells to

another company. This company produces product which is sold in other states. Q of where you have jurisdiction over company one

o Jurisdiction requires action by D more purposefully directed at forum state than just placing product in stream of commerce (Asahi plurality)

Possible actions: designing for a particular state, advertising for state, channel for providing regular advice to customers in a state

5

Just targeting nationally may not be enough, may need to direct at a particular state (Mcintyre plurality)

Breyer: single sale not enough Ginsburg: fair since foreign targeted broad

US marketo Brennan: regularly sold + as long as aware that product

reaching state, can anticipate lito Stevens: consider volume, value, hazardous character to

determine purpose Trend of expanding scope of state jurisdiction

Reason: nationalization, less burdensome thanks to tech/transport + communication

States have a manifest interest in getting redress for their citizens – fairness

Example: contracts Contract alone not enough as a contact – needs substantial

connection with state (BK) Must consider other factors like whether negotiations were directed

to forum state, whether contract required fulfillment of obligations in forum state, duration of contractual relation, choice of law

o General in personam (advancement of presence): Continuous and systematic contacts with the state

If established, court has jurisdiction over any claim P has against D Fair because D will not experience much burden in defending there Possible examples: place of incorporation, principal place of

business, continuing physical presence like office (especially w/ employees)

Purchases and related trips, even at regular intervals, not sufficient to establish general jurisdiction (Helicopteros)

Brennan dissent: gen jur should apply whenever D engages in activities that sig impact forum – rebuttal: opens up D to massive lit

Stream of commerce not enough to establish general (Goodyear)

Pennoyer – guy sued for legal fees, couldn’t find so published in newspaper, defaulted, got land, sold to D. P wanted land back from D b/c lack of jurisdiction. Pre-IS rule of only state jur

Hess – accident in MA, said driving in MA was implied consent to be sued. Purposeful act was driving in International Shoe – sued in CA, DE corp, place of business MO, only 12 salesmen there. Shift to contacts

– specific personal juris applies Mcgee – insurance company won’t pay out policy it acquired from other company, TX won’t uphold CA

decision, never solicited or did business in CA other than this one. Existence of contract with substantial connection with state enough – delivery, premiums

Hanson – living in PA, created trust in DE, moved to FL and got trust money, signed will in FL. No specific jurisdiction in FL – reinforces contact requirement

Volkswagen – P purchased car in NY, accident occurred in OK. Volks no link to OK whatsoever outside of this one car. Didn’t like chattels creating jurisdiction

6

Burger King – D signs 20 year contract with P, D from MI, P from FL. D falls behind on payments, BK sues in FL. 20 year relationship reinforced affiliation + long term intent to contact with state, reasonably foresaw litigation

Bensusan – Dispute over use of trademark on website. NY long arm statute required physical presence – narrow. Under “take it to the limit,” maybe constitutional, but precluded by statute

Asahi – P injured in CA motorcycle accident, sues Taiwanese manufacturer of tire tube, who brings in Asahi as 3rd party to share blame. Main claim settled, only indemnification left. Ran factors, also said mere stream not enough. Only plurality, dissenting opinions

Mcintyre – English company sells machine to US distributor, US distributor sells to NJ company. Man hurts hand and sues English. Plurality says had to have targeted state, dissent says national enough

Perkins – president maintained office in Ohio where he held corporate meetings, carried on business correspondence, distributed salary. General jurisdiction reasonable b/c carried on continuous/systematic part of its general business

Calder – National Enquirer published article that was written by two people in FL nationally including in CA, intentionally directed at CA, effects felt in that state

Revell – TX resident sues owner of NY based website in TX, D didn’t know P lived in TX, website did not target TX specifically. Not enough to send into many states, had to specifically direct to forum state

Jackson – P sues in IL on the basis of D directing activities there, passive not enough, needs some level of interactivity, Zippo test of 3 categories: interactive w/ business enough, no interactivity not, exchange of information – maybe

Helicopteros – Columbian corporation, plane crash in Peru that killed four Americans. Decedents sue – D had one meeting in Houston to discuss contract, purchased 80% of fleet from Texas, sent pilots + management + maintenance to TX for training. Purchases not enough to constitute gen jur

Goodyear – Bus accident kills two NC boys, P sues in NC ct and D international subsidiaries protest. Accident took place outside the forum, so only shot is general. Ct says stream of commerce not enough to prove general

Requirement of notice Service of process (Rule 4)

o Functions: Formally asserts court’s authority over D Informs D of case so she can prepare to defend it

o Procedural: Must meet constitutional requirements + be authorized by statutes Rules require complaint + summons served together Fed rules provide 120 days to serve 18+ and non-party can render service Objections must be made in answer (early) or considered waived

o Methods for people: In-hand service wherever D found Leave at D’s dwelling or usual place of abode with someone of suitable

age and discretion who resides there Deliver to agent authorized to receive service of process Follow state rules

o Methods for corporations: Deliver to officer, managing agent, general agent of entity Deliver to agent authorized/specifically empowered to receive service Follow state rules for serving corps

o Waiver of service Avoids embarrassment of serving

7

When D doesn’t waive, eats cost of service If filed too close to the SOL, D can hold it and won’t count as

service until filed – SOL will expire o Proper service prerequisite to entry of valid judgment

However, if perfect service + no notice – probably relief from judgment. Want D to have chance to defend

o Notice must be reasonably calculated, under all the circumstances, to apprise interested parties (Mullane)

Convey required information + afford reasonable time for response Shouldn’t be substantially less likely to give notice than other feasible

options Need not be perfect (ie conjectural interests too much of burden), but must

try reasonably hard – mere gesture not enough Notice by publication only okay if no other options – prefer notice by mail If notice is given to the majority, they can act in the interests of all

Statute of limitationso Fork: some jurisdictions say filing is enough, others say must serveo Purposes behind statute of limitations:

Providing peace to potential Ds Promote prompt claims Ensure fresh evidence + non-stale claims

o Some events toll (pause) the SOL: Fraudulent concealment Discovery provisions – ie finding sponge in med mal Tolling agreement – D agreeing to pause

Mullane – settlement of accounts on trust fund, would preclude beneficiaries from filing suit, required adequate notice to those with interest in fund. Only notice was through newspaper publication – followed requirements. Ct says not enough, must make reasonable effort – alternatives were available

Hukill – D had notice, but P held to not have substantially complied although addressed right since delivered to wrong person. OK statute not met

Anatomy of lawsuit Pleading Rule 8(a): short plain statement of the claim showing P entitled to relief Pleadings: P’s complaint + D’s answer Purposes:

o Put parties on notice of claims/defenseso ID factso ID non-meritorious suits

Formerly – notice pleading:o Idea that it shouldn’t be dismissed unless it appears beyond doubt that P can’t

prove facts to support claim – Conley stdo Didn’t need to plead facts sufficient to state cause of action

Didn’t need to prove all elements of the claim

8

o Court considers not just law invoked, but any applicable law that would entitle relief – not necessary to reference laws

o Argument against: need to weed out junk claims Rule 9(b): heightened pleading with particularity (claims of fraud/mistake)

o Allege where, when, howo Protecting reputation – fraud claims can cause huge reputation hito Higher stakes involved – potential punitive

Avoiding bullying into settlements given stakeso More likely to be frivolouso Rule 9(g) – special damages not normally anticipated – rare

Now – plausible pleading:o Prong one: Court doesn’t have to accept legal conclusions couched as allegations

as true – must be supported by facts, well-pleaded Difficult to get facts prior to discovery, may deny P chance to lit

o Prong two: Competing theories – want facts to suggest their theory more plausible, shift it over the line from possible to plausible

Based on judicial experience + common sense, possibility of biaso Discovery room locked, complaint has to do something affirmative to unlock

Goes back to idea of discovery abuse – cost, bullying Prof says undercutting value of justice system

o SC said you need enough facts to raise reasonable expectation that discovery will reveal evidence

o Defense lawyers love it – tougher pleading stdo Liberal dissent: Rule 8 has a simple meaning, now prejudging meritso D arguments – target conclusory, 50/50 plausible arguments under

Iqbal/Twombley Rule 11 Certification to the best of lawyer’s knowledge after reasonable inquiry: (1) no improper

purpose, (2) warranted by existing law or nonfrivolous argument for new law, (3) have/likely evidentiary support

o Objective std of what a reasonable lawyer would do – no locality Question of cost benefit analysis Does not require bad faith Negligence standard of reasonable care

Negligent lawyer harms opposition, other waiting litigants, and court by wasting time

o Case must be frivolous in order for there to be a bad purpose If objectively reasonable suit, don’t consider subjective intent or purpose Cts accept strategic use of litigation for settlement

o 21 day safe harbor: motion served, opposition has 21 days to withdraw to avoido Primary purpose to deter future litigation abuse

Sanctions not mandatory, can just reprimand/use as teaching momento One of several reforms to get courts more involved in managing lito Prof loves rule 11

Defendant responses

9

o Doing nothing Must move or answer within 21 days of service, show signs of wanting to

defend or risk default Cts usually refuse to enter default if D shows up and explains – want to

litigate on merits Rebuttal: efficiency at risk, had chance

Default doesn’t mean default judgment – may be able to open back up if good excuse

o Rule 12(b) motions 12(b)(6) – failure to state a claim; analysis of each element, can then leave

to amend 12(f) – motion to strike particular allegations – redundant, immaterial,

impertinent, scandalous -> must be no logical connection or cause prejudice

12(e) – more definite statement of pleading when initial too vague Some defenses must be raised at first or can’t be brought up later: lack of

personal jurisdiction, improper venue, insufficient service. 12(g) says you have to consolidate all the rule 12 motions. These are all evident at the start + only delay rather than end

o Answering the complaint If pre-trial motions fail, 10 days to file answer after notice Can assert leftover 12(b) defenses Denials – deny everything except background facts or say no knowledge

o Asserting affirmative defenses Basic pleading rules apply Answers must set forth affirmative defenses – might be allowed to amend

o Asserting counterclaims – if not asserted, considered waivedo Bringing new parties

Dioguardi – height of notice pleading, was able to get in with no facts + no laws Leatherman – SWAT team raiding homes for drugs, civil rights claim that municipality approved of policy

of inadequate training. Rejected as not being stated under rule 9(b) Twombley – alleged that telephone companies conspired to not compete + not cooperate with local. Also

possible that it was parallel conduct. Major shift from notice to plausible Iqbal – Muslim detained post 9/11, sues for illegal detention based on religion/race. Affirmed Twombley

for all cases, not just antitrust Hays – sues for common law copyright for production of manual (law no longer exists). Rule 11 Earthgrains – sues for employment discrimination, tried arguing against current law. Rule 11 was not

upheld because she was applying majority rule not used in her district Sussman – P lawyer tells D that if they file the suit, there’s going to be bad publicity. Claim was

reasonable, subjective purpose didn’t matter

Joinder Rule 18(a) allows P to assert any claims she has against opponent, related or unrelated

o Factual relationship, not legalo Convenient, avoids unnecessary litigationo Rule 21: Judge has power to sever unrelated claims to save time/avoid confusion

10

o Claim preclusion: barred from suing a second time if you could have joined claim in first

Rule 20(a)(1) – parties can sue together if they assert claims that arise out of the same transaction, occurrence, or series and if any question of law/fact common to all P

o Party joinder is optional – jurisdictional issues o Can sue both when you don’t know who did ito Clashing policies: efficiency vs party choice o Must be similar enough to overcome differenceso P wants to show a pattern, D wants to divide and conquer + show not same

Subject matter and personal jurisdiction must be satisfied first before joinder Counterclaims:

o Compulsory – arises out of transaction/occurrence that is subject matter of P’s claim, either assert or it gets waived

o Permissive – not related, the right of D Crossclaims:

o Claim against coparty arising out of same transaction/occurrenceo Purely permissive

Impleader:o Rule 14: Must be made on someone liable for all or part of P’s claim against D

Can’t bring someone who would only be liable to P and not to D – aka blaming someone else

o Contribution: third party D has to pay a share to Do Indemnification: full reimbursement

Hohlbein – four P have claims of misrepresentation against an employer. Want to bring it together and make cohesive story, D says too many differences, ct says good enough

Supplemental jurisdiction Right to add related state claims in federal ct When fed ct has jurisdiction, ct obtains jurisdiction not over the claim but the entire case

o Requires substantial federal question – coathook o Power to hear all other claims that arise from that factual dispute – same nucleus

of operative fact, some sort of moderate relationshipo Test: if would be barred under claim preclusion, bring in federal claim

Ct doesn’t necessarily have to exercise pendent jurisdiction – consider efficiency, convenience, fairness

o If federal claim drops out early, punt to state court unless substantial pretrial litigation has occurred

o If state claims predominate, punto If new, complex issues of state law, let st courts resolve matter so they can make

precedent – Erie o Likelihood of jury confusion

Ancillary jurisdiction for counter, cross, third party claimso Third party had to be authorized by diversity statute, more than nucleus of op fact

11

o Cross – same transaction or occurrence rule, since they had no choice of jurisdiction unlike P

o Worried about possibility of manipulation by P

Gibbs – P hired to open a mine + deliver coal. Picketed by local union, P fired and unable to work. Filed suit against union with violation of fed statute + state tort claim for conspiracy. Fed claim not supported by evidence, turned into pure st. Punted

Kroger – P sued D who impleaded 3rd, P also files claim against D, D held not liable to P, all that remains is nondiverse. Must meet diversity statute

Discovery Rule 26(b)(1) – authorizes discovery of any nonprivileged matter that is relevant to any

party’s claim or defense even if it would be inadmissible at trial as long as it appears reasonably calculated to lead to the discovery of admissible evidence

Lawyer must make it known to unrepresented party his role in the matter o Lawyers can take advantage of lay people – unfairo View of majority: prevents reasonable inquiry when opp has counsel, not justiceo Minority: core value to avoid taking advantage of people, want lvl playing field

Privilege: society valued relationship like doc-patient, lawyer-client o Rule 26(b)(5) – must state explicitly and describe nature of mattero Must look at purpose of privileged communicationo Policy: protecting relationship vs access to information

Duty to supplement if get more info later Work product – rule 26(b)(3) Applies to work done in the anticipation of litigation Only obtainable when information not readily available + necessary, must justify

productiono Protects against disclosure of mental impressions, conclusions, opinions, or legal

theorieso Protects against giving away value added by lawyer

Different approaches:o Specific claim – if done with specific claim in mindo Ad hoc – totality o Primary purpose – primary motivation must be prepping for lit

Free rider problem – one side does all the work Would not write/be candid – inefficiency, legal quality level would decline Benefits D more, protects against disclosure Tools Trend in discovery: increase in judicial supervision of the process Mandatory disclosure:

o Of witnesses, documents you may use to support claims/defenseso If not disclosed, can’t use it latero Court ultimately has decision over whether to compel

Interrogatories:o 25 questions o Answers supervised by lawyer, must use all info available to party to complete

12

Document requests:o Must describe with reasonable particularity o Huge potential expense

E-discovery: rule 26c – no huge burden or expense Deposition: live examination of witness under oath Medical examination:

o Without consent, requires motion asking court to order examo Must show condition of P in controversy and good cause exists

In controversy narrowly construed to mean for which P seeks recovery Abuse No first amendment right to disclose info garnered by discovery since otherwise wouldn’t

have it (Seattle Times)o Policy: privacy of litigants

Protective order: order to protect from annoyance, embarrassment, oppression, undue burden – Rule 26c

Rule 26(b)(c)(2) – limit frequency and extent of discoveryo Easily obtainable from another sourceo Cost outweighs benefit

Trade secrets need to be protected o Must be relevant to the caseo D must show disclosure would be harmfulo Balancing of need v. injury

Rule 37 – authorizes sanctions for inappropriate activity during discovery Can try to get motion to compel -> motion for sanctions Experts Expert must testify as to (A) scientific knowledge that (B) will assist the trier of fact in

trying to understand/determine fact at issueo Not just limited to scientific, but all expert knowledge as well

Used to be Frye test – generally accepted by scientific community New test: relevance

o Relevant evidence is defined as that which has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence

o Don’t need general acceptance b/c of possibility of new truth Can consider, along with rate of error

Rule 26(a)(2): o Must submit an expert report containing “a complete statement of all opinions to

be expressed and the basis and reasons therefore”o Must also disclose qualifications of witness including all publications;

compensation being paid; and list of other cases in which the witness testified as an expert during past 4 years

Rule 26(b)(4) – conversations between experts + hiring lawyer now considered work product

Federal rules of evidence: OK to give expert opinion if o Testimony based upon sufficient facts or data

13

o The testimony is the product of reliable principles and methodso Witness has applied the principles and methods reliably to case

Issue: hired gun, question of reliability No discovery of consulted experts unless exceptional circumstances

Gaylard – woman scalded in bath, lawyer telephoned worker for details without permission of employer. Unfairness b/w lawyer + layman

Hickman – tugboat sank, lawyer interviewed witnesses. P wanted D’s lawyer’s notes from interview and summaries. Easily available + free rider

Mcpeek – P wanted D to search backup systems for documents, D said only remote possibility. Extremely expensive. Rule 26(B) excessive burden, but allowed test run

Sacramona – P hurt by tire + claiming future damages, D wants to subject him to AIDS test to determine damages. HIV not in controversy

Seattle Times – libel suit against paper, paper wanted to publish names of donors to foundation who had been doing shady stuff, allowed discovery but no publishing

Chudasama – P wanted discovery about virtually everything, D objected to all, judge does nothing. Merrell Dow – Bendectin causing birth defects in children, competing experts. New standard for experts

established Kumho – tire blew up on P, wanted to bring in engi, held that technical experts allowed as well as scientific

Summary Judgment Dismissal with prejudice bars from litigating same claim again – res judicata; settlement Allowed to drop and refile case only once if before D files answer OR if all parties agree

o State variation: allowed to drop anytime up until conclusion of trial presentation, then refile within a year

SJ screens cases so that only viable ones go to trialo Tests evidentiary sufficiency of claim

Rule 56c – judgment rendered if “no genuine issue as to material fact”o Allowed any time until 30 days after close of discovery, but usually until parties

have reasonable chance to conduct discovery Reasonable jury std – what they would do Rationale for SJ:

o Adverse publicity for Do Imposes expenses on D + public (judge/jury)o Promotes nuisance value settlementso Avoids aberrational jury

SJ inquiry must be guided by the standard of proof applicable to the issue in the caseo SJ draws all reasonable inferences against the movant

Two types:o Disproof of an element – can disprove an element of claimo Absence of proof – claim theory of no evidence

Slaven – D said P couldn’t prove they knew or should have known guy in jail was suicidal, couldn’t prove elements of claim

Anderson – libel, had to prove by clear and convincing evidence, that’s the std required to fight off SJ Duplantis – slipped on board on platform owned by Shell, Shell said no evidence that board belonged to

them, lack of duty

Right to Jury

14

Rule 2: one form of action, civil action Preserved distinction b/w cts of law and equity Equity addressed injunctions, specific performance, and reformation/rescission of

contracts Two part test:

o Is claim analogous to one that was in equity/law?o Is type of relief traditionally available in equity or law?

Presumption in favor of a juryo Any factual issues w/ jury issues must be tried first prior to equity

Important bc whatever decision is made about common issue is binding Order in which claims are asserted not critical, ct looks at totality Congress may authorize jury trials by statute Exception of administrative tribunals – no jury

Jury selection Excused for cause (can’t serve unbiased/impartially) – no limit Attorney choice – peremptory 14th amendment precludes making peremptory challenges based on race and gender

o Maintain confidence in judicial system Trial judge’s word on neutrality of strikes pretty much goes Batson test for discrimination

o Must make out prima facie claim for discriminationo Other side must offer race neutral explanationo First party must prove that this explanation is pretext

Beacon Theatres – Fox had first run, Beacon claimed antitrust, Fox brought declaratory and preempted Beacon’s legal counterclaim for damages, merged -> jury trial

Dairy Queen – D signed contract with P to get trademark for part of PA, stopped paying and P sought injunction + payments + accounting. D wanted jury. SC recharacterized as legal looking for money damages, jury goes first.

Curtis – asks if there’s right to jury trial for new cause of action for violation of civil rights act (didn’t exist before). Decides damages are tort claims for damages – legal

Mcdonough – unless (1) clearly dishonest, (2) would have constituted basis for cause exclusion, no retrial JEB – state strikes all men, P strikes all women. Jury of all women. 14th amend says no Alveiro – strikes all women on the basis of “education” and “business”, no pretext found

Arbitration Binding process decided by an arbitrator, limited appeal rights

o Policy: efficiency + allocation of resources Federal policy favors arbitration – valid, irrevocable, enforceable

o As long as arbitration is effective, it is okay Public policy exception: some rights can’t be arbitrated – antitrust, public policy, discrim Courts can’t invalidate arbitration agreements under state law Must place arbitration agreements on equal footing with other agreements For claims for small amounts of money, arbitration fees could preclude them unless class

action Class action waivers in contracts allowed – class arbitration inefficient

15

Green Tree - $15 fee, wants to class action instead of arbitration. D failed to explain how arbitration process would be paid for. Ct said had to prove likelihood of incurring costs

Mitsubishi – agreement to arbitrate in Japan. Argument that too complicated + foreign countries won’t follow our values + unreviewable. Made agreement, have to stick to it

Casarotta – Montana provision with 1st page requirement not allowed to supersede arbitration ATT – free phones, charged tax, conflicting rule displaced by FAA

Class actions Named plaintiffs sue on behalf of others All members of class bound by result

o Efficiency Rule 23: rule establishing four prerequisites for class action treatment. Rule 23(a):

o Numerosity: Class must be sufficiently numerous that “joinder of all members is impracticable”

Usually fine if over 40o Commonality of questions of law or fact

Significant common issue of law or fact Until Walmart, easy

o Typicality (in terms of claims and defensive of representative parties) Claims typical of the class

o Adequacy of representation of lawyers and class representatives If reps are willing and competent + whether rep all interests

o Implicit factors: Is there really an ascertainable “class” here? Must satisfy one of rule 23(b) types

o Cases creating risk of inconsistent adjudicationso When D refused to act in way generally applicable to classo Damage class actions, superior, allowed to opt out and go solo but lose benefit

Procedure: filed as putative (potential), discovery, burden of showing rule 23 reqs met, then must get certified, counsel appointed, notice

Ct requirements:o Common questions of law or fact predominate over individualo Class action superior to other approacheso Manageability of class action

As long as named plaintiff exceeds amount in controversy reqs, okay Walmart – all women employees of Walmart since 1998, some circumstantial evidence

of discrimination. Scalia emphasis on commonality, must show common injury + common contention capable of classwide resolution – generating common solutions.

Erie Doctrine Cases in federal court thanks to diversity jurisdiction RDA instructs federal ct to apply fed law if it governs, but otherwise decide under

applicable principles of state substantive law Old Swift: fed cts required to apply relevant state statutes, but not bound to follow

common law of sto Didn’t look at any one state’s common law but conducted rule synthesis of all

16

o Able to choose different result by suing in fed ct – deprecated authority of st ct Forum shopping problem Discrimination against some citizens Ct unwilling to get into motives to bar collusion

Erie rule – except in matters governed by Constitution or acts of Congress, law to be applied is law of state regardless of declared by legis or highest ct

o Wanted convergence of fed + st decisionso If no st precedent, try to decide as st ct would

Consider trial + intermediate court decisions but try to decide as st supreme ct would today – st ct predictive approach

Possible to go against st sup ct, but unusual Applies st law as it as at time

May also certify Q to st highest ct, not routine, efficiency Q of delaying both dockets

St trial cts not bound by Erie guesseso Fed ct in diversity case should apply substantive law that would be applied by the

st ct in the st in which the fed ct sits Choice of law principle from forum st

Question of whether Erie doctrine covered st procedural along with substantive lawo Guaranty – idea that fed can’t give right to recover unavailable by state or affect

outcome of litigation to change result had it been in st ct Outcome determinative test

o Byrd – balancing of policy of uniformity vs maintaining federal system character Still use at the end, goals of the courts

Checklisto Refined outcome determinative – substantial var? twin aims? Prospective?

D narrow interpretation of the law – Walker, construe to coexisto Go straight here with Fed Rules o Is the scope of the federal rule sufficiently broad enough? Compare two -> no, topo Validly enacted as part of REA?

If arguably procedural (in addition to substantive) – rule wins No court has found violation, rejected all. Unlikely

o Shall not abridge/modify/enlarge a substantive right – unlikely but arguable Twin aims of Erie

o Discourage forum shoppingo Avoid inequitable administration of the laws

Black and white – P exclusive contract with RR, D starts using spaces, P files in fed, K law said invalid but US said ok, P wins

Erie – PA citizen walking along RR, struck by something and sues in NY. PA said he was trespasser, other law said he was owed duty of care.

Guaranty trust – question of whether to apply st SOL or fed laches doctrine. SOL since changed outcome Byrd – whether issue of whether P was employee for worker’s comp should be decided by judge (st) or jury

(fed) Hanna – in diversity case in MA, P used federal rules of service as opposed to personal service by hand

deliver req’d in MA. Ref outcome det

17

Walker – SOL, statute had to be served within 60 days under OK statute, filed in fed ct and claimed it was timely under fed rule 3s. Said could coexist, up to top and no good

Shady Grove – Allstate delayed payment of reimbursements + refused to pay interest. Filed in fed seeking class action, NYC presents class action for interest related. Shot down CA “right” – same liability. Says forum shopping inevitable, still valid.

18