civ pro - bryant
TRANSCRIPT
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CIVIL PROCEDURE OUTLINE
I. DUE PROCESSa. What courts must have to adjudicate a case:
i. Comes from the 5th and 14th Amendment (no person shall be deprived of life,
liberty, or loss of land without due process)
ii. Service/Notice
iii. Jurisdiction
1. Personal jurisdiction (over parties)
2. Subject matter jurisdiction (over case)
a. Federal question jurisdiction
b. Diversity jurisdiction
iv. Proper venue
II. DUE PROCESS: THE RIGHT TO NOTICE AND THE
OPPORTUNITY TO BE HEARDa. Process Due
i. Hamdi v. Rumsfeld
1. Facts Hamdi, U.S. citizen detained for being an enemy combatant and
never given due process.
2. Rule Citizen must always have some form of due process. Even where
there are special circumstances (war crimes) you still need due process.
This case shows us how much due process is really appropriate. Enemy
combatants Guilty unless proven guilty OConnor. Every U.S.
citizen is due some notice of hearing and we use Mathews to
determine this.ii. The Mathews test: How much process is due?
1. Established in Mathews v. Eldridge, provides a test for balancing issuesof the Governments autonomy with a citizens right for dueprocess to prevent erroneous deprivation of process
2. Determined by weighing the private interested affected by thegovernment against the Governments asserted interest and theburdens the Government would face in granting more process.
3. Erroneous Deprivation the court will weigh the risk of erroneousdeprivation as well in light of the facts and circumstances of the case
b. Right to Notice
i. Fed. R. C.P. 4: Provides a way to assure notice follow the rule and you
have given constitutionally adequate notice
1. Central Function: to provide notice that a legal action has been filed,and to provide this notice in such a manner and at such a time that thedefending party will have a fair opportunity to answer the pleadingand raise defenses and objections.
2. Purpose of Summons to alert the defendant that a lawsuit ispending against him and that he has a limited time in which to respond.
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a. Subject matter jurisdiction, personal jurisdiction, and venue must albe present before a defendant can be served properly with asummons and complaint.
3. Multiparty, Multiforum Jurisdiction Statute Where federaljurisdiction is based, in whole or in part, upon the federal multiparty,multijurisdictional statute, service can be made at any place within theUnited States or , if otherwise permitted by law, anywhere outside the
United States.4. Burden of Proof the party attempting service generally bears the
burden of establishing that the service is proper.5. The summons MUST:
a. Issue from the Clerk the summons must be issued by the clerkof court, and must bear the courts seal and the clerks signature.
b. Identify the Case the summons must also identify the districtcourt, name the parties to the lawsuit, and list the name andaddress of plaintiff of plaintiffs attorney.
c. Directed to the Defendant the summons must be directedspecifically to the defendant.
d. Time to Appear the summons must state the time within which
the defendant must appear and defend.e. Warn Against Default the summons must caution the defendant
that a failure to appear and defend will result in the entry of adefault judgment for the relief requested in the complaint.
6. The summons and complaint are served together. The plaintiff isresponsible for effective service.
7. Age - Any person over the age of 18 who is not a party to thelawsuit may serve original process.
8. State Marshal can serve upon plaintiffs request BUT he must serve in thecases of pauper plaintiffs or seamen plaintiffs.
9. Service must occur after the complaint is filed.10. Waiver-of-Service
a. The waiver-of-service procedure applies to defendants except:i. The United States as a defendantii. agencies, corporations, or officials of the US as
defendantsiii. other governments and government-related entities as
defendantsiv. infant defendantsv. incompetent defendants
11.Serving Corporationsa. Service to the agent authorized to accept process or a
manager or under the state rule for service of a corporation.12. Rule 4: Best to Worst
a. Hand deliverb. Certified Mailc. Hand Deliver to an Agent must be over 18d. Mailing/Postinge. Publication
13.Default action served with a complaint and you dont respond. Theplaintiff wins by default.
14.Expires 120 Days (after the date of the issuance of the summons)15.Lack of Service can be Waived
ii. The Mullane test: What type of service is appropriate?
1. General standard for constitutionally sufficient notice
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2. Notice should be reasonably calculated to apprise interested
parties
iii. Notice: The Constitutional Dimension1. Greene v. Lindsey
a. Facts Tenants, Appellees, lived in a Louisville, Kentucky housingproject. The Deputy Sheriff was responsible for the serving processHe posted a copy of the write of forcible entry and detainer on theirdoor when they didnt answer. The appellees claim to have neverreceived it because kids in the neighborhood often take thingsposted on doors off.
b. Rule Application of Mullane. Was not adequate notice. Noticemust be reasonably calculated, under all the circumstances.Feasible alternatives existed that wouldve been moreconstitutional notice. (in this case, mail would have been thereasonable method given the nature of the neighborhood mail wasan inexpensive, efficient mechanism)
iv. Notice: Constitutional Requirements Ritualized: Rule 41. National Development Co. v. Triad Holding Corp. and Khashoggi
a. Facts Rich guy had houses all over the world, claimed service tohis NY apartment not adequate
b. Rule Rule 4(d)(1) requires that service of summons must bedelivered to the persons dwelling house or usual place ofabode.ACTUAL SERVICE IS NOT SUFFICIENT, MUST BEACCORDING TO RULE 4. In this case, the expensive condo was adwelling.
III. PERSONAL JURISDICTIONa. Territorial Jurisdiction from Pennoyer v. Neff old model
i. Pennoyer v. Neff
1. RULE: Physical presence dictates personal jurisdiction
a. Must exist at the TIME the lawsuit was filed2. This was because travel was difficult at this time, people were mostly
illiterate, and the country was founded on basis of states rights
ii. Pennoyerterritorial model of jurisdiction evolved because of increase in
technology, ease of travel, more mobile society, commerce
b. PERSONAL JURISDICTION ANALYSIS
i. FIRST look at - Long-Arm Statute
1. Broad or Narrow depending on the State
a. The analysis ends here if you cant get jurisdiction under Long-Arm
Statute
ii. Constitutional Basis for Jurisdiction
1. Can we get jurisdiction over the defendants in a way that goes with the
Constitution?
a. Service of Non-Resident In-State?
i. Shaffer v. Heitner
1. Facts Heitner was a shareholder in Greyhound who
sued a number of officers of the company. He moved
to sequester their property in Delaware. This
property included the defendants stock in Greyhound
and other financial instruments. The motion was
granted. The court reversed.
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2. Rule - The Shoe model should be applied to
jurisdiction in rem as well as in personam when
minimum contacts are a substitute for actual
physical presence. The court will no longer allow
the states to assert jurisdiction merely because
somebody owns some property in that state.
Must analyze property as a contact.ii. Burnham v. Superior Court
1. Facts Man served with divorce papers to appear in
CA court while on a visit to his kids in CA.
2. Rule - Service of process upon a non-resident
physicallypresent in the forum state is almost
always validand does not violate constitutional
due process. Transitory presence is sufficient. There
is therefore no need to apply the "minimum
contacts" test because there was actual
presence.
b. Consent?
i. The person being haled into court can consent to personal
jurisdiction.
ii. Most common way is a forum selection clause. (Waiver
of right to detest jurisdiction.)
iii. Carnival Cruise Line forum selection clauses are
generally good unless procured by fraud.
1. Rule: Generally, forum selection clauses will be upheld
unless there is fraud, etc. because signing the forum
selection clause signifies your submission to the
specific court and waiving your right to have itelsewhere. Held that forum selection clause helps the
cruise line keep costs down for tickets by not having to
worry about litigating anywhere, makes people certain
about litigation while traveling.
2. Why is the court inverting the traditional rules about
contracts of adhesion? Policy reasons upholding the
sanctity of the contract is paramount, forum selection
clauses should be upheld for efficiency, these
transactions are so routine that it would be
unreasonable for every passenger to negotiate3. After this case, legislation enacted that forum selection
clauses in a form ticketed type agreement wouldnt be
sufficient for personal jurisdiction when related to
transportation).
4. Brownie Points Will every forum selection clause not
procured by fraud give us personal jurisdiction? Point
this out if the clause it iffy to you. If its really iffy, go
on and do the constitutional analysis.
c. Service of Non-Resident Outside the State
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i. Specific v. General Discuss this on the test (will probably
be specific jurisdiction but will get points if you mention why
its not general and tell that you will analyze it under specific)
1. No Contacts No jurisdiction
2. Isolated and Irregular Contacts (Unrelated) No
jurisdiction
3. Isolated and Irregular (Related) Maybe jurisdiction **(specific)
4. Continuous and Systematic (Related) Probably
jurisdiction ** SPECIFIC
5. Substantial/Significant/Continuous GENERAL means
that there is jurisdiction and we dont have to continue
down this road.
6. When continuous corporate operations within a state
were thought so substantial and of such a nature as to
justify suit against it on causes of action arising from
dealings entirely distinct from those activities.
d. Specific Jurisdiction
i. Minimum Contacts
1. International Shoe Test
a. Rule - If protected by the laws of a state
shall be subject to personal jurisdiction in
that state. Got to haveminimum contacts.
Changes rule from territoriality to
minimum contacts, fair play, substantial
justice
b. Need to have enough contact with the
state like consistent corporate operation swith the state even where the suit is not
about those operations
c. However, even a single contact can be
enough if the cause of action is about that
contact (ex. Automobile accident)
ii. Purposeful Availment did the defendant purposefully
avail himself of contacts in the state?
1. Exception: If P made unilateral decision to move to
another state, should not subject D to jurisdiction in
that state because they had no purposeful availmentof contact
2. Hanson v. Denckla
a. Rule The court held that a FL court did not
have jurisdiction over a DE trust company that
entered into a trust agreement with a DE
woman who moved to FL. Contacts were too
minimum, unilateral action of FL woman
was not purposeful availment by D
3. Kulko v. Superior Court
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a. Rule The court held it was unconstitutional for
CA to exercise jurisdiction over a NY father who
sued for divorce from his wife who moved to CA.
He did not purposefully avail himself wife
unilaterally decided to move to CA
iii. Foreseeability Did thedefendant reasonably foresee
that they could be haled into court in this jurisdiction?1. World-Wide Volkswagen
a. Facts Somebody bought a car from a car
dealership in New York. They got into a car
accident in Oklahoma where the fuel tank
exploded. They started a product liability suit
against the present appellants and others in
Oklahoma.
b. Rule - Majority bases their decision on
foreseeable that the defendants would be haled
into court in Ok --no purposeful availment;
unilateral activity of the plaintiff should
not be enough to subject the defendant to
jurisdiction in OK when the defendant did
nothing to avail themselves of activity
there or they would not have reasonably
foreseen it
iv. Special Considerations
1. Stream of Commerce -- Not foreseeable (not enough
to satisfy jurisdiction-W.W. VW) Foreseeable (could
depend on whether the court favored WWVW or Asahi)
Stream of commerce plus (Asahi)
a. World Wide Stream of commerce:
manufacturer distributor shipper retai
consumer; Court decides to determine
when the disputed product leaves the
stream of commerce to examine
foreseeability;
b. Asahi mention distinction between OConnor
Standard and Brennan Standard.
i. OConnor stream of commerce PLUS
(marketing)ii. Brennan lesser standard; were you just
aware that the product might end up in
that state.
2. Contract
a. Burger King just because they have a contract
doesnt mean there is jurisdiction but it is a very
strong contact. Contract PLUS analysis.
These parties have a contract, could they have
reasonably foreseen that it would hail
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them into court in a certain state. More
than Likely Sufficient.
b. In considering whether contract creates a
contact look at the following factors:
i. The nature and prior negotiations
between the parties
ii. The contemplated futureconsequences of entering into the
contract
iii. The terms of the contract
iv. The course of dealings between the
parties
c. A contract is a really strong contact, if the
lawsuit is related to the contract at all, more
than likely the court will find jurisdiction
3. Internet/Websites where do these contacts fall on
the Zippo sliding scale? Where do the contacts fit into
the 4th Circuit adapted and adopted Zippo model in
ALS and AccuSport?
a. Zippo Sliding Scale nature and quality
of the contacts with the forum state are the
issue, look at the interactivity of the
websites.
i. Active websites If defendant enters
into contracts with residents of a foreign
jurisdiction that involve the knowing and
repeated transmission of files over the
internet (clearly does business)
personal jurisdiction is proper
ii. Interactive websites where a user can
exchange information with the host
computer personal jurisdiction decided
after determining the level of
interactivity and commercial nature
of info exchange that occurs
iii. Passive websites that just make info
available to those interested no
personal jurisdictionb. 4th Circuits adapted and adopted Zippo
model -- personal jurisdiction over a non-
resident defendant can be exercised when that
person
i. directs electronic activity into the
State
ii. with the manifested intent of
engaging in business or other
interactions in the state
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iii. that activity creates a potential cause
of action in the States courts
4. Intentional Torts (libel, slander, etc.) courts reach
farther to find sufficient contacts
a. Keeton v. Hustler
i. Facts: sued for libel
ii. Rule: Courts will tend to stretch toestablish personal jurisdiction when the
defendant is charged with an intentional
tort.
v. Relatedness between contacts and legal action
1. If claim arises from a single contact with the forum
state, the court will probably exercise specific
jurisdiction over the claim
vi. Fairness Asahifactors
1. burden on the defendant to defend in forum
state2. interests of the forum state,
3. interest of the plaintiff to have it adjudicated in
this state
4. interstate judicial systems shared interest in efficiency
5. respect between states/ nations interstate policy
interests
6. 3 factors will be determinative (burden on
defendant, plaintiffs interest, interest of forum state
(state laws or policies are at stake or when states
citizens are involved)most important)
IV. SUBJECT MATTER JURISDICTION: Due Process and the Dual
Court Systema. Dual Court System
i. Federal courts limited jurisdiction
ii. State courts general jurisdiction
b. Federal courts get subject matter jurisdiction from either:
i. Diversity jurisdiction based on 28 U.S.C. 1332
1. Domicile
a. Place where party has a physical presence and
b. An intention of returning or remaining
i. See Mas v. Perry below
2. Permanent Resident Aliens are domiciled in the state in which they reside
(only look at this is other party is a U.S. citizen)
3. Non-permanent Resident Alien is not considered a resident of any state,
and is considered domiciled in the foreign nation in which they are from
ii. Federal question jurisdiction based on 28 U.S.C. 1331
1. Claim arises under federal law, constitution or international treaty
c. Burden to show subject matter jurisdiction rests on the plaintiff
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ii. Muscle Test where are they doing the most actual work?3. Estates Citizenship determined by the decedent4. Unincorporated Enterprises Partnerships, LLCs, Trusts, etc., take
citizenship of every state where a general and limited partner,trustee or member is a citizen
a. Mas v. Perryi. Facts: Husband (French national) and wife try to sue their LA
landlord over two-way mirrors. Question was whether wifewas also domiciled in LA.
ii. Rule: Diverse citizenship must be present at the timethe suit is filed. Diversity is based on domicile.Domicile is the place of his true, fixed, and permanenthome and principal establishment, and to which he hasthe intention of returning whenever he is absenttherefrom.
iii. Ticking Time Bomb of subject matter jurisdiction1. It will be dismissed if it is found not to have subject matter
jurisdiction no matter how late in the case, unlike in personaljurisdiction where the person has to object in a certain amount of time or
it will not be dismissed and people can waive their rights to jurisdiction.2. Personal jurisdiction can be waived: consent, forum-selection
clausescontesting of personal jurisdiction must be done prior to
answering summons b/c once you answer, you are deemed to have
consented to jurisdiction of the court
3. Subject matter jurisdiction cannot be waived: parties cannot agree
to having the case heard, the judges must decidecontesting of subject
matter jurisdiction can be raised at any time during the case, either before
judgment of after trial, its ticking time bombcan destroy a case when
lack of it is discovered
4. Belleville Catering, Inc. v. Champaign Market Place, LLCa. Facts: Lease dispute, Federal trial court heard case based on
diversity, Entered judgment for D for $220,000, P appealed, J.
Easterbrook held there was no diversity jurisdiction on appeal,
threw out case, attorneys had to pay to re-try case in state court
b. Rule: Subject matter is a ticking time bomb, can kill a case
as soon as the defect is discovered. Do not treat citizenship
of unincorporated enterprises like individuals. (12(b)(1) is
not waived if not brought in either a pre-trail motion or
answer)
5. Tanzymore v. Bethlehem
a. Facts: Man had no real domicile, lived in OH and PA and wasnt
settled in either
b. Rule: Burden to show subject matter jurisdiction rests on
the plaintiff, and this Plaintiff could not prove his domicile was
diverse from D. ***lack of subject matter jurisdiction is a ticking
time bomb that can come up at any time and kill a case, lawyers
should be really careful and make sure that the court absolutely has
jurisdiction
iv. Why might a corporation want to go to federal court?
1. Jury pool may be more diverse
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2. Judges are not elected
3. Docket might be slower
4. Federal courts favor business generally
5. Federal courts know the cases better, more time and resources
6. Federal courts are more likely to throw cases out because of lack of
political pressure
v. Policy1. Reasons Against Diversity Jurisdiction
a. Almost half of our cases in our federal court system are diversityjurisdiction cases and eliminating those cases would make moreroom for cases in which the federal court is more equipped tohandle (civil rights, etc.)
b. State concerned cases need to be kept in state courts.2. Reasons For Diversity Jurisdiction
a. Out-of-State citizens cannot always count on a fair trial in a statecourt
b. Keeps federal judges up-to-date on state statutory and commonlaw.
c. Relieves the caseload of state courts.g. Federal Question Jurisdiction
i. 28 U.S.C. 1331: federal question jurisdiction is exercised when the case
arises under federal law has a substantialand directbearing on the
case; federal law must be an ingredient of the dispute
ii. Well-pleaded complaintRequirement Plaintiffs complaint must
include the federal question, is not sufficient if the only the defenses
raises a federal question
1. Franchise Tax Board v. Construction Laborers Vacation Trust(US
Supreme Court, 1983): summarizes the current test for determining
whether a case arises under federal law. Justice Holmes test:
lower federal courts have jurisdiction to hear well-pleaded
complaints
i. establishing either than federal law creates the cause of
action
ii. or that the plaintiffs right to relief necessarily depends
on resolution of a substantial question of federal law.
2. Louisville v. Mottley
a. Facts: Train wreck victims signed a release and settled outside of
courtgot free train passes for life. Train company refused to give
them passes after federal law passed prohibiting it. Plaintiffs filed
in federal court but only raised a federal question in anticipation ofthe defendants defense
b. Rule: No federal question just because defendant raises it,
the plaintiff must. Well-pleaded complaint just means the centra
claim is related to a federal question.
iii. Private right of action requirement: in order for someone to file a lawsuit,
they have to have a private right of action (suing under a federal law that
allows them to file a suit).
1. Not all federal laws contemplate a private party filing a lawsuit under it.
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a. Ex: Patriot Act you cant sue someone directly under it;
Immigration laws you cant individually sue someone you think is
an illegal alien
h. Supplemental Jurisdiction
i. A common problem in federal litigation is thatmultiple claims
frequently arise out of the same nucleus of facts and involve some of
the same parties1. Problem that 1367 seeks to solve is: How should a federal court
proceed when it does not have subject matter jurisdiction over
some of the claims?
ii. Common law types of supplemental jurisdiction
1. Pendent
2. Ancillary
3. combined and codified into 28 U.S.C. 1367
iii. 28 U.S.C. 1367 Supplemental Jurisdiction
1. Common law developed allowing federal courts to hear state law claims
under certain conditions2. 1367 was passed in 1990 to codify the best of the common law
concerning supplemental jurisdiction
3. Advantage: eliminated judge-made distinction between pendent
and ancillary jurisdiction by combining them both into supplemental
jurisdiction
4. 1367 provides supplemental jurisdiction
a. If a federal court has original jurisdiction over a claim, then all
other related claims forming the same case or controversy
can be heard by a federal court also by supplemental
jurisdiction; supplemental jurisdiction includes joinder or
intervention of additional parties
b. In a case founded on diversity, the P cant use supplemental
jurisdiction to bring claims against parties brought in as
third parties this only applies when you cant get an
independent claim under diversity jurisdiction or federal question
anyway; doesnt apply to claims brought by third party
c. Federal courts may decline supplemental jurisdiction if
i. The claim raises a novel or complex state issue
ii. If the claim predominates over the claim under original
jurisdiction
iii. All claims under original jurisdiction have beendismissed
iv. Exceptional circumstances or compelling reasons for
declining
1. Ex: P bringing in a claim late in the case
iv. The Gibbs Test
1. United States Mine Workers v. Gibbs (US Supreme Court, 1966)
stated the basic test for tacking on claims under supplemental
jurisdiction
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2. Test provides principals for tacking a state law branch claim to a
federal trunk
3. It is within a courts discretion to exercise subject matter jurisdiction over
the related claims, based their decision on factual relatedness:
a. Would a jury get confused?
b. Is there economy, convenience, and fairness to litigants?
c. Is the federal claim substantial?
i. Federal Removal Jurisdiction
1. If an action filed in state court could have been brought in federal court
(concurrent), a defendant may be able to remove the case to federal court
if the requirements of 28 U.S.C. 1441 (Federal Removal Statute) are met
2. Case would be removed to the federal court that embraces jurisdiction of
the state court where the original action was filed
3. 28 U.S.C. 1441 Actions removable
a. Where there are joined claims that are typically non-removable, the
district court may remove all of the claims of the case, and have the
discretion to remand the claims that were traditionally non-
removable
b. Home state rule -- defendant cannot remove a case to federal
court based on diversity if any of the defendants are citizens of the
state where the case is pending
i. Policy: no reason to fear prejudice in your own state, thus no
need for a neutral forum and the plaintiffs choice should be
honored.
ii. Home- base rule is not applicable to subject matter
jurisdiction pursuant to 28 USC 1331 (federal question)
1. Policy: the court system wants federal questions to beresolved in the federal system
ii. 28 U.S.C. 1446 Procedure for removal
1. Caterpillar v. Lewisa. Facts: Case was not legally removable under statute at time
Caterpillar moved to remove. s motion to remand was denied.The defect in federal jurisdictional requirements was cured at thetime of judgment.
b. Rule: Federal jurisdiction predicated on diversity ofcitizenship can be sustained even if there did not existcomplete diversity at the time of removal to federal court,
so long as complete diversity exists at the time the districtcourt enters judgment.
2. has 30 days from the time served with summons and receipt of thecomplaint, by service or otherwise to file for removal
3. In diversity, if action is not removable at time of filing, has 30 days fromfiling of amended complaint (pleading) to make a motion to remove
4. In diversity, may not remove case after 365 days from the date of filing5. If there are multiple defendants, all must agree to the removal6. The case shall be removed to the federal jurisdiction that embraces the
jurisdiction of the state court where the action was filed.iii. Remand 28 U.S.C. 1447 Procedure after Removal
http://en.wikipedia.org/wiki/Diversity_jurisdictionhttp://en.wikipedia.org/wiki/Diversity_jurisdictionhttp://en.wikipedia.org/wiki/Diversity_jurisdictionhttp://en.wikipedia.org/wiki/Diversity_jurisdiction -
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1. Once removed, the has 30 days to fill for a remand to state court
V. VENUE: Transfers within Federal Court System (Best Place toHear Case)a. Venue Generally
i. Based upon statutes
ii. SMJ and venue are very often confused. Subject matter jurisdiction is the powerof the court to adjudicate the matter before it. Venue relates to the proper
district in which to bring the action. Subject matter is a question of power or
authority; venue is a question of convenience. SMJ cannot be conferred by
agreement, venue can be. A court can have SMJ without being the proper venue
iii. Basic Concept: Venue is concerned with where is the district is proper; depends
on the size of the state
b. 28 USC 1391
i. (a) Venue case based solely on diversity
1. Judicial district where any defendant resides, if all defendants reside in
the same state2. Judicial district in which a substantial part of the events or omissions
occurred that give rise to the claim or substantial part of the property of
subject is situated
3. Judicial district in which any defendant is subject to personal jurisdiction, if
no other venue is proper from above two subsections
ii. (b) Venue case based not solely on diversity (solely federal question or federal
question/diversity)
1. Judicial district where any defendant resides, if all defendants reside in
the same state
2. Judicial district in which a substantial part of events or omissions occurred,
or substantial part of property involved3. Judicial district in which any defendant may be found, if there is no other
district in which the case could be brought
iii. (c) Corporations as Defendants
1. Corporations shall be deemed to reside in any judicial district in which it is
subject to personal jurisdiction at the time of filing
2. If state has more than one judicial district, and the corporation is subject
to personal jurisdiction in that state, and district will work so long as the
corporation has such contacts in that district that will subject it to persona
jurisdiction (PJ analysis for each district in the state)
3. If the above two do not result in a proper venue, then it can be the districtwith the most substantial contacts with the defendant
iv. (d) Alien may be sued in any district
1. Remember Venue is waived unless timely objected too (this would
be a 12(b)(3) motion to dismiss based on improper venue)
2. In this case courts will typically attempt to transfer to a proper venue (see
below)
c. Transfer of Venue
i. 28 USC 1404 (inconvenient venue) proper
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1. (a): district court may transfer any civil action to any other district or
division where it might have been brought
2. (b): Venue can be transferred based on motion, consent or stipulation of
all parties at the discretion of the court form the division in which it is
pending to any other division in the same district (12(b)(3), sua sponte,
consent)
3. (c): District court may order any civil action to be tried at any place withinthe division in which it is pending
a. Republic of Bolivia v. Phillip Morris (sua sponte)
i. Venue may be transferred sua sponte (on the courts
initiative) based on the inconvience the case would place the
judicial district in
b. In order to dismiss a case based on venue, the court must
find that venue is improper and the case would be better
held in a foreign nation or different court system (state
rather than federal court)
4. Original Venue Proper A transfer solely on convenience grounds
(under section 1404(a)) carries to the transferee court the original
applicable (under Erie) rules (including choice of law); i.e., the law of the
state in which the transferor court sat. This is true even where the
plaintiff initiates a transfer for convenience after initially choosing the
inconvenient forum.
ii. 28 USC 1406 (defective venue) improper
1. District court may dismiss a case based on improper venue (wrong court
system)
a. Forum non conveniens
i. Generally means a case is dismissed based on inconvenient
venue1. Piper v. Reyno
a. Forum non conveniens almost always arises
when the issues concerns whether an
appropriate venue would be international
courts are very reluctant to dismiss a case
based on venue
2. Original Venue Improper A transfer of the ground that the original
choice of venue was improper (under section 1406(a)) generally results in
a change of the law applicable under Erie, i.e., the law of the state in
which the transferee court sits.I. ERIE DOCTRINE AND CHOICE OF LAW (Deals only with Diversity)
d. Pre-Erie: Swift Doctrine
i. Stipulated that if there is no written statute the federal court would use federal
common law and would use state procedural rules (use federal substantive law
and state procedural law)
e. Three Questions Answered by Erie and Post Erie Line of Cases
i. Should we force federal courts to impose the substantive law of the state in
which they sit?
ii. Which procedural rules are they obligated to follow, state or federal?
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iii. What is the difference between the substantive and procedural rules?
f. Erie v. Tompkins R.R. Co.
i. Court reversed the Swift Doctrine
1. in diversity cases the court must adhere to the written and
unwritten law of the state in which they sit (state substantive
law) and follow to federal laws that govern procedure
a. Twin Aims of Erie:i. To discourage forum shopping
ii. Avoidance of Inequitable Administration of the Laws
Result should be the same regardless of where the case is this only applies in
diversity cases because if it were federal question then you would already know
to apply federal law.
o A diversity case where there is a state law claim and we cant tell if its
procedural or substantive and we are trying to decide whether to apply
state law or federal rules. Generally the claim itself isnt going to be what
we are talking about. The hard question is: which statute of limitations to
apply, or which service rule.o A federal court, in the exercise of its diversity jurisdiction, is required to
apply the substantive law of the state in which it is sitting, including
the states conflict of law rules. (Eric and Klaxon) However, the federal
courts apply federal procedural law in diversity cases.
Is there a Federal Directive on Point? To determine whether
the federal law should be applied, the first question to ask is
whether there is a federal law (e.g., statute, FRCP) on point. If there
is the federal law will apply, provided that it is valid (which is
usually difficult to determine)
Then you look at whether the federal procedural rule
governs and controls the situation completely. (We had this
in Hannah). It must expressly address the situation. This is called a
Hannah Rule so the following must be met: (if its not, go to *)
Does it Met the Twin Aims of Erie?
o Stop forum shopping; and
o Avoid unfair differences in administration of justice
between state and federal courts.(We generally want
the outcome to be the same whether in state or
federal court)
*If There is No Federal Directive on Point, Is the Issue
Substance of Procedure? If it is a matter of substance, the
federal judge must follow state law in a diversity case. If it is a
matter of procedure, the federal judge may ignore state law. Look
at this in terms of the state law would the state law be outcome
determinative?
Some Situations are Clearly Established
o Statutes of limitations - substantive
o Choice of law rules substantive
o Elements of a claim or defense - substantive
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Law is Unclear in Other Situations
o Outcome Determinative Test holds that an issue is
substantive if it substantially affects the outcome of
the case (Guaranty Trust Co. v. York)
o Balance of Interests the court weighs whether the
state or federal judicial system has the greater interest
in having its rules applied.
in Bird we see that this is where you do a bit of a
balancing test; look at state policies versus
federal policies which can result in a court
going either way so we must hope that the
Supreme Court has ruled on this issue before
Look at Chart in the book to see what they have
previously ruled on. (if all arrows are pointing
towards state law, there has to be a very strong
interest for applying the federal law in order to
apply federal law)o Forum Shopping Deterrence (one of the aims of Erie)
directs that the federal judge should follow state law
on the issue if failing to do so would cause litigants to
flock to federal court (Hanna v. Plumer)
Conflict Laws (Klaxon case)
o Conflicts laws a set of rules which tell the state which state laws to
apply. DONT ASSUME THAT NORTH CAROLINA STATE COURTS WILL
ALWAYS APPLY NORTH CAROLINA LAWS. The conflict laws are usually
very specific. Originally it was called lex loci delicti (place where the thing
happened), but each state is different now. A more modern approach ismore flexible and take a more fact sensitive approach, which way makes
the most sense.
1. The court first has to decide whether to apply federal or state lawand
then which state. The case tells us that federal courts apply the conflicts
law of the forum. This doesnt mean that they use the states laws that
they are in, but they apply that states conflict law
g. How do we tell the difference between substantive and procedural law (where is the
line of demarcation)
i. York Court
1. Held that if a law would be outcome determinative then it would be
classified as substantive law
2. If rule would change the result in state court, the same rule
should apply in federal court
a. Almost any rule can be construed as outcome determinative
ii. Hanna v. Plumer
1. If a FEDERAL RULE (frcp) govern an issue that you would have to
invalidate or ignore to apply state law, then it is procedural and you have
to apply the federal rule even if the state law is outcome determinative
2. Where determining if a law is substantive or procedural analyze the law
under the twin aims of Erie, outcome determinative is simple a test
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a. Byrd Court
i. Dont look at York in a vacuum, you must look to the twin
Aims of Eire and not simply if a law is outcome determinative
h. Choice of Law (Which states law apply)
i. Klaxon v. Electric
1. Must look to the conflict of law or choice of law rules of the state in
which the federal court sits to determine what states law to apply to adispute
a. Courts are bound to do whatever the choice of law rules dictate
Rule Choice of
Law
Authority
Standard of Care State Law Erie v. TompkinsConflict of Laws State Law Klaxon v. Stentor
Statute of Limitations State Law Guaranty Trust v. YorkBurden of Proof State Law Cities Service v. Dunlap
Burden of Pleading Federal Law Palmer v. Hoffman
Discovery PhysicalExaminations
Federal Law Sibbach v. Wilson
Venue Transfers Federal Law Stewart v. Ricoh Corp.Agreement to Arbitrate State Law Barnhardt v. Polygraphic
Co.
II. Constructing a Lawsuit Investigation and Inquiry Preceding
the Initial Pleadingi. RULE 11
i. (a) Attorney or record or self-represented party must sign each document filed
with the court (complaints, pleadings, motions, and all other documents filedwith court)
ii. (b) By present to the court a pleading, motion, or other paper, an attorney or
unrepresentative party is certifying that to the best of the persons
knowledge, information, and belief, formed after an inquiry reasonable
under the circumstances
a. Kraemer v. Grant County
i. You have to conduct a reasonable amount of research,
investigation into the facts of the case prior to filing suit
2. (1) No improper purpose
a. You are in violation of section (1) if your sole or primary purpose is
improper
i. Improper purposes =
1. Harass or cause unnecessary delay or needlessly
increase the cost of litigation
ii. Saltany v. Reagan
1. If you know that you have no chance of winning a
case, filing a suit to use the courthouse as a medium
for protesting is considered an improper purpose
3. (2) Claims with no legal basis
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a. If you are going to argue in the opposition of current law, you would
have to make a non-frivolous argument for the modification,
extension, or reversal of the law
i. Frantz v. USPF
1. Made claim that was clearly in violation of recent
Supreme Court ruling
a. Must have a legal basis for the claim that youare making
4. (3) No evidence supporting claim
a. You must have evidence to support you claim, or must argue that
discovery would provide you with the evidence necessary to
substantiate your claim
i. Business Guides, Inc. v. Chromatic
1. Rule: Need to investigate what has been told to you
before you place your signature on a claim; would
have been simple in this case to compare listings with
those in phonebook
5. (4) Denial of Factual contention must be reasonable
a. If you are going to deny a claim or allegation it must be reasonable
based upon the evidence
i. This section only applies to answers
iii. (c) Court may impose sanctions upon attorneys, law firms, or parties involved
that have violated subdivision (b)
1. How initiated
a. Motion you must prepare the motion and give notice to the
opposite party and they are given 21 days to withdrawal the claim
or provide evidence for why it is legitimate.
i. Problem not solved within 21 days then a party may filemotion for Rule 11 sanctions
2. Sua Sponte (Courts Initiative) court may enter show cause order
describing conduct in violation of Rule 11, then party has opportunity to
respond to that order
a. There is no grace period here as in subsection (A) you can still be
sanctioned after you correct the problem presented in the show
cause order
3. Nature of Sanction; Limitations
a. Money damages may not be awarded against a represented party
for violation of subdivision (b)(2)b. Money sanctions may not be awarded on the courts initiative
unless the court issues its order to show cause before a voluntary
dismissal or settlement of the claims made by or against the party
which is, or whose attorneys are, to be sanctioned.
III. THE INITIAL PLEADINGj. RULE 8
i. (a) Claims for Relief
1. Short and plain statement of the grounds upon which the courts
jurisdiction depends
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2. Short and plain statement of the claim showing that the pleader is entitled
to relief
a. Conley v. Gibson
i. Complaint shall not be dismissed for failure to state a claim
unless it appears beyond a doubt that the plaintiff can prove
no set of facts in support of his claim which would entitle him
to relief1. Rule 8 requires a short plain statement, enough to give
fair notice to defendant
ii. Policy
1. Rule 8 establishes a high standard for dismissing a
complaint because the courthouse door should not be
barred because counsel was not artful in drafting a
complaint.
b. Atlantic v. Twombly
i. Pleading must contain something more than a statement of
the facts that merely creates a suspicion of a legally
cognizable right of action
1. Plausibility Test
a. The pleading must have facts that establish a
plausible claim for which relief is based
b. Must cross the line from possibility to possibility
to probability
ii. Twombly can be read narrowly to only apply to anti-trust
cases under the Sherman Act, or it could be a reform on the
entirety ofRULE 8.
1. Unsigned opinion after Twombly appears to reinforce
Conley standard and holdpro se litigants to an evenlower standard of pleading
3. A demand for judgment for the relief the pleader seeks
ii. (b) Defenses; Form of Denials
1. Party shall state n short and plain terms the partys defenses to each
claim asserted and shall admit or deny the averments upon which
the adverse parties relies
a. If party is without knowledge or information sufficient to form a
belief as to the truth of an averment, the party shall state this ( =s
denial)
iii. (c) Affirmative Defenses1. 8(c) lists a number of affirmative defenses, yet is not exhaustive
a. Residual clause
i. Any other matter constituting an avoidance or affirmative
defense
b. Affirmative defenses let the defendant off the hook even if they had
done the actions alleged
2. Gomez v. Toledo
a. Burden of pleading affirmative defenses rests with the defendant
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i. Policy court does not want the plaintiff to have to plead in
opposition of anticipated defenses that might be raised by
defendant
ii. Must plead what the statute requires and place burden on
defendant to raise an affirmative defense
1. If an affirmative defense is not raised in the answer
then it is waivediv. (d) Effect of Failure to Deny
1. If you fail to deny an averment it is assumed to be admitted by the court
a. Averments in a pleading to which no responsive pleading is required
or permitted shall be taken as denied or avoided.
v. (e) Pleading to be Concise and Directed
1. Each averment of a pleading shall be simple, concise, and direct
2. Party may set forth two or more statements of a claim or defense
alternatively or hypothetically
a. Ingram Case
i. Inconsistent, alternative claims cannot be plead if you know
one of them is false, however if you are not sure as to the
truth of alternative claims then you may present them to the
court.
k. Rule 9
i. (a) Requires that you plead cases of fraud and mistake with particularity
1. Who, what, when, where and why
2. Letherman
a. Rule 9 says that fraud and mistake are the only cases that must be
plead with specificity, thus all other cases may be plead generally
ii. (b) (c) it is sufficient to plead conditions of the mind and conditions precedent
generally for mistake and fraud cases
IV. RESPONDING TO THE COMPLAINTl. Rule 12
i. (a) When presented.
1. Defendant shall answer serve an answer
a. Within 20 days after being served with the summons and complaint
b. If service of summons has be timely waived under RULE 4(d) then
within 60 days
i. Exceptions
1. US (employees or agencies) have 60 days 12(a)(3)(A-
B)2. If court denies motion or grants motion for more
definite statement responsive pleading should come
within 10 days of order 12(a)(4)(A)
ii. (b) How presented.
1. Must respond to each allegation placed against you in the complaint
a. Go through the numbered paragraphs and affirm, deny, or indicated
that you are without sufficient knowledge or information to form a
belief as to the truth of an allegation (thus denying it)
2. May file a pre-answer motion based on the list provided in RULE 12(b)
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a. 12(b)(1) lack of subject matter jurisdiction
i. File this when there is not a federal question or incomplete
diversity
b. 12(b)(2) lack of personal jurisdiction
i. File this when client does not meet minimum contacts test
c. 12(b)(3) improper venue
d. 12(b)(4) insufficiency of processi. File this when there is a defect with the papers
e. 12(b)(5) insufficiency of service of process
i. File this when there is insufficient service of process
f. 12(b)(6) failure to state a claim on which relief can be granted
i. File this when there are no set of facts under which plaintiff
can recover (Twombly may tweak this)
iii. (e) May file a motion for a more definite statement anytime prior to answering
complaint and does not have to be consolidated under subsection (g)
1. waived when the complaint is answered
iv. (g) Consolidation of Defenses in Motion
1. Must file all the applicable pre-answer motions that are available in a
consolidated motion to the court
a. Put all 12(b) motions in one big motion
v. (h) Waiver or Preservation of Certain Defenses
1. Personal jurisdiction, improper venue, insufficiency of process, or
insufficiency of service of process are waived if not included in the initial
motion or first responsive pleading
2. 12(b)(6), failure to state a claim and 12(b)(7), failure to join a party are
not waived if not included in the pre-answer motion or the answer, yet
must be raised in a pleading pre-trial
a. Once case goes to trail they are waivedb. Cannot be included in a separate 12(b) motion after one has been
previous filed, must either be raised in answer or future pre-trail
pleading
3. 12(b)(1), lack of subject matter jurisdiction is never waived and there is no
consolidation requirement
a. Can be raised at any stage during the course of a case
V. AMENDING THE PLEADINGS **** Second Semester Startm. Rule 15 Amended and Supplemental Pleadings
i. (a) Amendments.
1. Automatic Righta. Party may amend pleading once as a matter of course at anytime
before a responsive pleading is served or, if no responsive pleading
is required and the action has not been placed on the trial calendar,
the party may amend within 20 days of service of the pleading.
2. Leave or Written Consent
a. May amend later than above with leave of court or written consent
from adverse party
i. Leave shall be freely given when justice requires
3. Responses to Amended Pleadings
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2. It is not enough to hypothesize that a party knew and
nothing would have changed had they been a party to
the suit.
VI. Discovery --- Scope and Privilegen. Rule 16(b) Pretrial Conferences; Scheduling; Management
i. Judge, after receiving report from parties under Rule 26(f) or scheduling
conference, may enter a scheduling order that limits the time: (does not have to
be actual meeting, may be done by mail, phone, or appropriate means)
1. Join parties and amend pleadings
2. File motions, and
3. Complete discovery
ii. Scheduling order may also include:
1. Modifications of the times for disclosures under Rule 26(a) and 26(e)(1)
and the extent of discovery permitted
2. Provisions for disclosure or discovery of electronically stored information
3. Agreements parties reach for asserting privileges or for protection of trial-
preparation material after production4. Dates for pre-trial conferences and trial, and
iii. Order shall be issued as soon as possible
1. Within 90 days after appearance of defendant and within 120 days after
the complaint has been served on the defendant.
2. Not to be modified except upon a showing of good cause by the
requesting party (must seek leave of court)
o. Rule 26 General Provisions Governing Discovery; Duty of Disclosure
i. (a) Required Disclosures, Methods to Discover Additional Matter.
1. (1) Initial Disclosures: a party must, without awaiting a discovery
request, provide the other parties:
a. Name, address and telephone number of each individual likely to
have discoverable information that the disclosing party may use to
support its claim or defenses, unless solely for impeachment,
identifying the subject of the information
b. A copy or description of all documents, electronically stored
information and tangible things that are in the possession of the
party and that the disclosing party may use to support its claims or
defenses, unless solely for impeachment
i. Zubulake --- Spoliation and Document Retention
1. Once a party anticipates litigation they must place a
litigation hold to ensure the preservation of relevantdocuments.
a. Does not apply to inaccessible back-up tapes
2. Spoliation
a. Destruction of electronically stored evidence
i. Must show possession of evidence and
obligation to preserve at the time of
destruction
ii. Destroyed evidence was relevant
b. Sanctions
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i. Monetary
ii. Exclusion of Evidence
iii. Adverse inference jury instruction
c. Computation of damages claimed by disclosing party, making
available all non-privileged documents under Rule 34 from which
the computation is based
d. Insurance agreement, as under Rule 34, under which any personcarrying on an insurance business may be liable to satisfy all or part
of a judgment
e. Exceptions to Initial Disclosures: Note that subsection (a)(1)(E)
contains the exceptions
i. Time Limits:
1. Disclosures must be made at or within 14 days after
the Rule 26(f) conference
2. Any party first served or otherwise joined after the
Rule 26(f) conference must make these disclosures
within 30 days after being served or joined unless a
different time is stipulated by court order.
ii. Must make disclosures based on the information at the time,
and not excused because it has not completed investigation
or due to defects or non-produced discovery from the
adverse party
f. Chalick v. Cooper Hospital
i. Facts: Medical Malpractice case for wrongful death
ii. Rule: It is an obligation under Rule 26(a) for defendants to
provide plaintiff with the identities and roles of the
decedents treating physicians so that the case can be
decided on the merits.2. (2) Disclosure of Expert Testimony
a. Must disclose the name, address and telephone number of the
expert along with:
i. Written report prepared and signed by witness:
1. Complete statement of all opinions to be expressed
and the basis and reason therefor
2. Data or other information considered by the witness in
forming opinions
3. Any exhibits to be used in support or summary for the
opinions4. Qualifications of witness
5. Publications authored within last ten years
6. Amount of compensation to be paid to witness
7. Any other cases in which the witness has testified
within last four years
b. Timing of Disclosures
i. At least 90 days before the trail date or the date the case is
to be ready for trial
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1. 30 days after disclosure of other party, if the evidence
is solely to be used to rebut or contradict the same
subject matter
2. Must supplement these in the event that things change
3. (3) Pretrial Disclosures: In addition to the required initial disclosures, a
party must file the following information regarding the evidence that it
may present at trail (unless solely for impeachment)a. Name, address, and telephone number of each witness
i. Must distinguish those which plan to call and those which will
only be called if a the need arises
b. Designation of those witness whose testimony is expected to be
presented by deposition and a transcript of the deposition
c. Identification of each document or other exhibit separately
identifying those which the party expects to offer and those which
will be offered only if a need arises
i. These disclosures must be made at least 30 days before trial
1. Objections to these disclosure must be made within 14
days and are waived unless a showing of good cause
4. (4) Form of Disclosures
a. All disclosures under (1) (3) must be made in writing, signed and
served
vii. (b) Discovery Scope and Limits
8. (1)In Generalb. Parties may obtain discovery regarding any matter, not privileged,
that is relevant to the claim or defense of any party
i. Relevant information need not be admissible at the trail if
discovery appears reasonably calculated to lead to thediscovery of admissible evidence.
c. Blank v. Sullivan & Cromwell
i. Claim was for gender discrimination in hiring practices, yet
plaintiffs wished to discovery information regarding
promotion of women to the rank of partner.
1. The test for whether information is discoverable is that
it must appear to be reasonably calculated to lead to
discovery of admissible evidence
a. Realistically evidence of discrimination in
promotion would not be allowed at trial,
however it was in this case reasonably
calculated to lead to admissible evidence and
was thus allowed.
5. (2) Limitations
a. Court may alter the limits on the number of depositions and
interrogatories or the length of depositions under Rule 30. Also the
number of request may be limited under Rule 36.
b. A party need not provide discovery of electronically stored
information from sources that the party identifies as not reasonably
accessible because of undue burden or cost.
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i. Adverse party may make a motion to compel and party must
then show that information is not reasonably accessible due
to undue burden and cost
ii. Court still may enforce discovery on the showing of good
cause by adverse party
c. Court may not allow discovery if it determines that:
i. It is unreasonably cumulative or duplicative, or it isobtainable from some other source that is more convenient,
less burdensome, or less expensive
ii. Party seeking discovery has had ample opportunity by
discovery in the action to obtain the information sought
iii. The burden or expense of the proposed discovery outweighs
the benefit
1. Taking into account the needs of the case, amount in
controversy, partys resources, importance of the
issues at stake in litigation, and importance of the
proposed discovery in resolving the issues. --- This can
happen sua sponte or upon motion.
6. (3) Trial Preparation; Materials Attorney Work Product
a. May obtain discovery of documents and other tangible things
prepared in anticipation of litigation only upon a showing that
the party seeking discovery has substantial need of the
materials in the preparation of the partys case and that the
party is unable without undue hardship to obtain the
substantial equivalent of the material by other means.
(Essential to the case)
i. If discovery is order, court will protect against disclosures of
mental impressions, conclusions, opinions, or legal theoriesor an attorney (absolute protection)
b. Attorney Work Product
i. Privilege extends to notes, documents, and other materials
prepared by or for the party
1. Includes material prepared at the direction of counsel
c. Hickman v. Taylor
i. Court creates the attorney work product privilege in this case
protection material prepared in anticipation of litigation
7. (4) Trial Preparation; Experts
a. Party may only use interrogatories or depose an expert (notexpected to be called at trial) only upon a showing ofexceptional
circumstances under which it is impracticable for the party
seeking discovery to obtain the facts or opinions on the
same subject by other means
i. Party seeking discovery will bear the costs of both the
experts time and may be required to pay other party a fair
portion of the fees and expense incurred by retaining the
expert
8. (5) Claims of Privilege
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a. Information withheld.
i. Must claim expressly the privilege or work-product and shall
describe the nature of the documents, communications or
other things not produced
1. allows other party to assess whether the privilege is
applicable
b. Information Produced.i. If information is produced that is subject to a claim of
privilege or protection as trial-preparation material, the party
making the claim may notify any party that received the
information of the claim and the basis for it.
1. After notification, a party must promptly return or
destroy the specified information, or
2. Present the challenged material under seal to the court
to determine if the privilege is valid
c. Privileges
i. Attorney Client
1. Protects communication between attorney and client,
without presence of strangers, for the purpose of
securing primarily either an opinion of law or legal
service, or assistance is some legal proceeding, and if
not for the purpose of committing a crime or a tort
a. Privilege waived if one party subsequently
reveals the contents of the privileged
conversation to another party
b. Facts talked about are not privileged, simply the
communication
2. Corporations?a. UpJohn v. US
i. Previous only those in under the control
group test were protected by the A-C
privilege
b. New Rule: A-C privilege extends to:
i. Lower Level employee has needed,
important information for legal advice
ii. Within the scope of the employees duties
iii. Employee has to understand that purpose
of communication is for the lawyer to givethe company legal advice
iv. Employee must know that the
conversation was confidential
v. Information not otherwise available from
higher sources (minority of jurisdictions
require this element)
c. Rarely applies to former employees
ii. Doctor Patient
iii. Marital
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iv. Religious Advisor Clergy
v. 5th Amendment
ii. (c) Protective Orders
1. Court may make an order for protection as justice requires to protect a
party from annoyance, embarrassment, oppression, or undue burden or
expense --- must seek immediately during a deposition (must move the
court after attempting to resolve the issue between the adverse party)a. Note: long list of things a court may do to protect a party (1) (8)
iii. (d) Timing and Sequence of Discovery
1. Parties may not seek discovery from any source before the parties have
conferred as required by Rule 26(f)
a. Unless court order methods of discovery may be used in any
sequence
iv. (e) Supplementation of Disclosures and Responses
1. Party is under a duty to supplement or correct the disclosure or response
to include information thereafter acquired if ordered by the court or in the
following situations:
a. If party learns that is some material respect the information
disclosed is incomplete or incorrect and if the additional or
corrective information has not otherwise been made known to the
other parties no duty to correct depositions (see below)
b. Expert discovery must be supplemented if information contained in
their report or deposition is in error or incomplete and must be in by
Rule 26(a)(3) deadline
2. Party is under duty to amend a prior interrogatory, production request, or
request for admission if party learns that is some material respect the
information disclosed is incomplete or incorrect and if the additional or
corrective information has not otherwise been made known to the otherparties
v. (f) Conference of Parties; Planning for Discovery
1. At least 21 days prior to a scheduling conference is due under Rule 16(b)
the parties must meet to consider the nature and basis of the claims and
defenses and the possibility of settlement
a. Must also develop discovery plan and submit to court
i. List in Rule 26(f) about topics that should be discussed and
reported on by each party
2. Must submit plan to the court with 14 days following the meeting each
attorney needs to do thisvi. (g) Signing of Disclosures, Discovery Requests, Responses and
Objections
1. Every disclosure must be signed by an attorney of record, certifying that
to the best of the signers knowledge, information, and belief, formed after
a reasonable inquiry, the disclosure is complete and correct as of the time
it is made
2. Every discover request, response, or objection must be signed by an
attorney of record and signifies that
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a. It is consistent with the rules and warranted by existing law or a
good faith argument for the extension modification or reversal of
existing law
b. Not interposed for any improper purpose
c. Not unreasonable or unduly burdensome or expensive
i. If one of these three is not signed it will be stricken, unless
promptly signed when attention is called to the error3. A court can sua sponte or upon motion impose sanction against a party
that has made an improper disclosure, etc.
IX. THE DISCOVERY TOOLSp. Rule 33 Interrogatories to Parties
i. (a) Availability.
1. May serve upon any other party written interrogatories not exceeding
25 in number
a. Leave to serve additional interrogatories shall be granted to the
extent consistent with Rule 26(b)(2)
b. May not be served prior to time specified in Rule 26(d) unless leaveof court is granted
ii. (b) Answers and Objections
1. Each interrogatory shall be answered separately and fully in writing, under
oath
a. If objected to, the party shall state the reason for objection and
shall answer to the extent the interrogatory is not objectionable
2. Answers are singed by the party and objections signed by the attorney
3. Must serve answers and objections within 30 days of service
a. Varying time lengths may be imposed under court order
4. Grounds for objection must be stated with specificity
a. Failure to state a ground for objection is waived unless the partys
failure to object is excused by the court for good cause
5. Party submitting the interrogatories may move for an order under 37(a)
with respect to any objection to or other failure to answer an interrogatory
a. Must seek a protective order if objection concerns annoyance or
embarrassment
i. All other privileges or objections can be made in writing the
answers (duplicative, obtainable elsewhere, not relevant or
reasonably calculated)
iii. (c) Scope; Use at Trail
1. May relate to any matter that is relevant to a parties claim or defense, orreasonably calculated to lead to the admission or relevant evidence (rule
26(b)(1))
2. May not object merely because an answer to the interrogatory involves an
opinion or contention that relates to fact or the application of law to fact
a. Court may allow the interrogatory to be answered at a later time,
(e.g. after discover complete)
iv. (d) Option to Produce Business Records
1. If the answer to an interrogatory can be derived from the business records
of the party, and the burden would be the same for you to discover the
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answer yourself, you can specify the records where the answer may be
derived and afford the party an opportunity to look at and review the
documents
q. Rule 34 Production of Document
i. (a) Scope
1. Allows for the request of non-privileged relevant documents in the
possession of the other partyii. (b) Procedure
1. Request cannot be made, without leave of court, before the time specified
in Rule 26(d)
a. Applies to things in you possession, custody or control
i. You have the power to get the document, then you may have
the burden to produce it
1. Do not have the power to compel a friendly witness to
provide documents to an adverse party
b. There must be a written response within 30 days indicating and
stating the reasons for any objections to individual requests
2. Unless parties otherwise agree, the court will order:
a. A party who produces documents for inspection shall produce them
as they are kept in the usual course of business or shall organize
and label them to correspond with the categories in the request
b. If the request does not specify the form or forms for producing
electronically stored information, a responding party must produce
the information in a form or forms in which it is ordinarily
maintained or in a form or forms that are reasonably usable; and
c. A party need not produce the same electronically stored
information in more than one form
iii. (c) Persons not Parties1. May be compelled under Rule 45 to produce documents and things
a. Must use to get the documents and things in possession of
witnesses under Rule 45
r. Rule 36 Requests for Admission can only be used on parties
i. (a) Request For Admission
1. Must comport with the rules of 26(b)(1) and cannot be served before time
allowed in Rule 26(d).
a. Matter is admitted unless, within 30 days after service of the
request, other party denies.
i. Must deny or object to avoid admittanceii. Denials must be specific, indicating which part the question is
denied and which is admitted
ii. (b) Effect of Admission
1. Any matter admitted under this rule is conclusively established unless the
court, on motion, permits withdrawal or amendment of the admission
s. Rule 30 Depositions Upon Oral Examination
i. (a) When Depositions may be Taken; When Leave Required
1. Party may take deposition of any person, including other party, without
leave of court except as provided in the next section.
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a. Attendance can be compelled by subpoena as provided in Rule 45
2. Party must obtain leave of court, if person examined is confined in prison
or if, without the written stipulation of the parties:
a. Proposed deposition would result in more than 10 depositions begin
taken under this rule or Rule 31
b. The person to be examined already has been deposed in the case
c. A party seeks to take a deposition before the time specified in Rule26(d)
i. Must provide notice that person to be deposed is about to
leave the US and will be unavailable for examination before
trial.
ii. (b) Notice of Examination; General Requirements; Method of Recording;
Production of Documents and Things; Deposition Organization;
Depositions by Telephone
1. Must give reasonable notice of deposition in writing to every other party in
the action
a. State time and place of deposition and name and address of each
person to be deposed
2. State the method in which the deposition is to be recorded (in notice
document)
a. Can be recorded in any method and the party taking the deposition
bears the costs
3. With prior notice, party may request a different form of recording of the
deposition
a. Party making the request bears the cost of the additional record
measures
4. Conducted before an officer appointed or designated under Rule 28 and
begin with the officers statementa. There is a list in subsection 4 that indicates what the officers
statement shall include
5. May make a Rule 34 request in conjunction with the deposition, which can
occur at the taking of the deposition
6. This section deals with public or private corporations as deponents - 30(b)
(6) deposition
a. Describe with reasonably particularity the matters on which the
examination is requested
b. Corporation may send multiple parties
i. Must specify who will be discussing the specific matters ofthe deposition (who tells what)
7. May stipulate in writing or court may order upon motion a deposition by
telephone or other remote electronic means
iii. (c) Examination and Cross-Examination; Record of Examination; Oath;
Objections
1. Officer shall put the witness under oath
a. All objections will be noted in the record but the deposition shall
proceed
i. Qualifications of the officer
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ii. Manner of the deposition
iii. Evidence presented
iv. Conduct of a party, etc.
b. Party taking does not have to attend, but must submit questions
under seal to the officer who will propound them to the witness
2. Objections can be made to question form even if the person being
deposed is not your clienta. They will be noted under 32(d)(3) for the record
iv. (d) Schedule and Duration; Motion to Terminate or Limit Examination
1. A person may instruct a deponent not to answer only when necessary to
preserve a privilege, to enforce a limitation directed by the court, or to
present a motion under Rule 30(d)(4)
2. Depositions are limited to one day, seven hours
a. Unless otherwise stipulated by the court
i. Fair to give more time
ii. Deponent delays or impedes the proceedings
3. May sanction deponent for delays and impediments
4. Party or Deponent may make motion to terminate or limit deposition (Rule
26(c)) upon a showing that it is being taken in bad faith and designed to
annoy, embarrass, or oppress the deponent.
a. If court terminates the deposition, it may only resume upon court
order
v. (e) Review by Witness; Changed; Signing
1. Must request prior to the conclusion of the deposition
a. May review and change transcript within 30 days of notice that the
transcript is ready
i. Must sign a statement providing the reasons for making such
changes to the substance of the depositionvi. (f) Certification and Filing by Officer; Exhibits; Copies
1. The officer must certify that the witness was duly sworn and that the
deposition transcript was a true record of the testimony given by the
deponent
vii. (g) Failure to Attend or Serve Subpoena
1. The court may award expenses, including attorneys fees, to a party that
appears for a deposition that does not occur because either:
a. The party noticing the deposition does not attend, or
b. The party fails to subpoena a witness and that witness does not
appear.i. Parties may be order to pay expenses of other party in either
case.
t. Rule 32(d)(3) Using Depositions in Court Proceedings
i. (A) Objection to Competence, Relevance, or Materiality.
1. An objection to a deponents competence or to the competence,
relevance, or materiality of testimony is not waived by a failure to make
the object before or during the deposition
ii. (B) Objection to an Error or Irregularity --- Form of Question
1. These are waived if:
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a. It relates to the manner of taking the deposition, the form of an
question or answer, the oath or affirmation, a partys conduct, etc;
and
b. It is not timely made during the deposition
iii. (C) Objection to a written question
1. An objection to the form of a written question under Rule 31 is waived if
not served in writing on the party submitting the question with the timefor serving responsive questions or, if the question is a recross-question,
within 5 days after being served with it
u. Rule 37 - Failure to Make Disclosure or Cooperate in Discovery: Sanctions
i. (a) Motion for Order Compelling Disclosure or Discovery
1. (1) Party motion to compel must be made I the court in which the action
is pending
a. Non-party motion to compel must be made in the court in the
district were discovery is being taken
b. Note: Party must give notice to all other parties and persons
affect thereby prior to motion to compel
2. (2) Motion.
a. (A) Initial disclosures - For a failure to submit discovery required by
Rule 26(a), any other party may make a motion to compel such
discovery and for sanctions
i. Must certify motion to compel with a genuine statement that
movant has in good faith conferred or attempted to confer
with the party failing to make disclosure in an effort to avoid
court action
b. (B) Interrogatories, Document Request, and Depositions The same
certification as required for initial disclosures is required here as
well (discovering party must make the motion here)3. (3) Evasive or Incomplete Disclosure, Answer or Response.
a. Treated as a failure to disclosure
4. (4) Expenses and Sanctions.
a. (A) If motion to compel is granted with regard to disclosure or
requested discovery the court shall require the party that created
the need for the motion to pay the reasonable expenses incurred in
making the motion, including attorneys fees.
ii. (c) Failure to Disclose; False or Misleading Disclosure; Refusal to Admit
1. Unless failure to disclose is harmless, the party failing to make disclosure
is not permitted to use any of the information not disclosure during thecourse of the proceedings.
a. Reasonable costs and attorneys fees in accordance with the
standard laid out above
i. Will not impose penalty if court determines that motion was
not made with a good faith certification hat parties attempted
to work the problem out without court action, or
ii. Opposing partys nondisclosure, response or objection was
substantially justified or that other circumstances make an
award of expenses unjust
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b. (B) If motion denied court may enter a protective order of the
information under Rule 26(c) and shall impose reasonable
expenses, including attorneys fees to the moving party
i. Will not impose sanction if the motion was substantially
justified by the moving party or other circumstances make an
award of expenses unjust
c. (C) If granted in part and denied in part court may issue protectiveorder as necessary and may appropriate the expenses between the
two parties in a just manner.
iii. Failure to Comply with Order.
1. Can result in a number of sanctions by the court:
a. Contempt of court
b. Order indicating that matters not disclosed will be established in a
favorable manner for the party seeking to obtain discovery
c. Order refusing to allow the disobedient party to support or oppose
designated claims or defenses --- prohibiting the introduction of
certain evidence
d. Striking out pleading, suspending action until order obeyed, or
dismissing the action, or rendering a default judgment
i. Again attorneys fees will be award along with other
reasonable cost so long as the disobedient party was
substantially justified in their actions or other circumstances
make an award of expenses unjustified.
v. Rule 56 Summary Judgment (think of this rule as the table and leg example provided
in class)
i. (a) Claimant.
1. May make motion for summary judgment at any time after 20 days from
the commencement of the action or after service of a motion for summaryjudgment by the adverse party
a. Can move for summary judgment with or without supporting
affidavits
i. Celotex Since the moving party here will have the burden of
persuasion at trial, the burden of production for a summary
judgment motion must be accompanied by credible evidence
establishing each claim of the actions against the opposing
party.
ii. (b) Defending Party.
1. May move at any time for summary judgmenta. Can move with or without supporting affidavits
i. Celotex Since moving party will not have the burden or
persuasion at trail their burden of production can be met in
two ways
1. Submit affirmative evidence that negates and essentia
element of the non-moving parties claim (not done
often)
2. May demonstrate to the court that the non-
moving partys evidence is insufficient to
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establish an essential element of the non-
moving partys claim
a. Burden of production will then shift to the
adverse party
i. Must submit affidavits or other documents
allowed in the rule to show that there is a
genuine issue of material fact for trial.(56(e))
ii. Must take all counterevidence as true in
favor of the non-moving party
ii. If the moving party would have the burden of persuasion at
trail:
1. Their summary judgment motion must be support be
credible evidence showing that as a matter of law the
opposing party cannot defeat his claim
iii. (c) Motion and Proceedings Thereon.
1. The judgment sought shall be rendered if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with affidavits
if any, show that there is no genuine issue of material fact and that
moving party is entitled to judgment at law.
iv. (d) Case Not Fully Adjudicated on Motion.
1. The court may enter a summary judgment ruling on the issue of liability
alone, even though a genuine issue of material facts exists as to damages
The court may also summarily resolve other individual issues as to which
there remain no genuine issue of material fact.
v. (e) Forms of Affidavits; Further Testimony; Defense Required.
1. When a motion for summary judgment is made and supported as provided
by this rule, an adverse party may not rest upon the mere allegations ordenials of their pleadings, but the adverse partys response, by affidavits
or otherwise, must set forth specific facts showing that there is a
genuine issue of material fact for trial.
a. If the adverse party does not respond, summary judgment if
appropriate, shall be entered against the adverse party.
b. Matsushita v. Zenith Radio Corp.
i. When the moving party has carried its burden under Rule
56(c), its opponent must do more than simply show that
there is some metaphysical doubt as to the material facts
1. Has non-moving party put forth enough evidencethat a reasonable jury would be able to find for
you. Evidence must go beyond a mere
possibility, must be plausible that the jury could
draw the inference you desire.
2. Non-moving party has the benefit of all reasonable
inferences at summary judgment unreasonable
inferences will not be construed in the s favor
vi. (f) When Affidavits are Unavailable.
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1. If the adverse party submits affidavits showing that they cannot present
facts essential, by affidavit, to justify the partys opposition to the motion
for summary judgment, the court may order a continuance to permit
affidavits to be obtained of depositions taken or discovery had.
a. This provides non-moving party a fair opportunity to respond if
moving party makes motion early on in the discovery process
vii. (g) Affidavits Made in Bad Faith.1. If the court determines that an affidavits is submitted in bad faith or solely
for the purpose of delay, the court shall order the party employing them to
pay the reasonable expense incurred due to the filing of the affidavit,
including attorneys fees --- may be also judged to be in contempt of court
X. Trial, Judges and Juriesw. Rule 16(d)-(e) Final Pretrial Conference, Pretrial Orders
i. (d) The court will usually conduct the final pretrial conference after the pretrial
narrative statements have been filed and as close to trial as possible. At the
final pretrial conference, the court will make a schedule for any remaining
motions and set a trial date. An attorney who will conduct the trial or anunrepresentative party must attend the conference with the authority to enter
stipulations and make admissions
ii. (e) Requires the court to issue a pretrial order memorializing the action taken at
any pretrial conference. Once a pretrial order has been entered, it supercedes
all pleadings and controls the subsequent course of the case. The order shall be
modified only to prevent manifest injustice
1. In a pre-trial order you will see a bunch of deadlines concerning all
matters of the case for trial, such as dates for motions, jury instructions,
etc. You will also see a date for the exchange of pre-trail disclosures.
x. Rule 26(a)(3)
i. (3) Pretrial Disclosures: In addition to the required initial disclosures, a party
must file the following information regarding the evidence that it may present at
trail (unless solely for impeachment)
1. Name, address, and telephone number of each witness
a. Must distinguish those which plan to call and those which will only
be called if a the need arises
2. Designation of those witness whose testimony is expected to be presented
by deposition and a transcript of the deposition
3. Identification of each document or other exhibit separately identifying
those which the party expects to offer and