INTRODUCTION TO THE CIVIL PROCESS [1-4]

-In our system, judges are “umpires”-Civil procedure is about dispute resolution

-the doctrine in civil procedure is guided by our common sense-Rule 1

-The goal of civil procedure is to secure the just, speedy, and inexpensive determination of every action

-The line between substantive and procedural law is a bit ephemeral-The civil system is adversarial-Civil procedure brings the issue of power to the foreground-in civil litigation we should not hurry into trial

Pretrial Conference-Rule 16

-16(c) Empowers the judge to call a pretrial conference to encourage settlement-Not designed to force people to settle

-16(f) Allows judge to impose sanctions under certain conditions (failure to obey scheduling order; failure to attend a pretrial conference; failure to negotiate in good faith)

-Settlement is good for litigation because its creates efficiency in the judicial economy-Litigation is good for settlement because it allows for parties to evaluate the strength of their position and thus move toward settlement

STAKES OF LITIGATION

PRE-JUDGEMENT SEIZURE [5-13]

Fuentes Hearings are always required for prejudgment seizures except in extraordinary

circumstances. Extraordinary situations that justify postponing notice and opportunity for a hearing (ex parte prejudgment seizure):

o (1) seizure has been directly necessary to secure some important governmental or general public interest;

What counts as an important government or public interest?o (2) there has been a special need for very prompt action;

What qualifies for prompt action?o (3) the State has kept strict control over its monopoly of legitimate force; the

person initiating the seizure has been a government official responsible for determining, under the standards of a narrowly drawn statute, that it was necessary and justified in the particular instance

Which state officials?o Court does not make clear whether we need all 3 factors to execute a ex

parte prejudgment seizure

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o Ultimately, hearings are going to be required for a matter of course, except in those extraordinary circumstances that the SC does not seem to think will ever arise

Mitchell SC holds that a statute allowing repossession (without a prejudgment seizure

hearing) by a creditor will be valid if ito (1) requires presentation of specific facts about the claim, o (2) requires that the facts be presented to a judge rather than to a clerk, and o (3) provides for an immediate post-repossession hearing at which D can

present his case

Di-Chem RULE regarding the need for preseizure notice after Di-Chem

o There is always an adversarial hearing, except when there is some other safeguards to guard against mistaken repossession:

(1) the creditor must post a bond to safeguard the interest of the debtor;

often a double bond (2) the creditor or someone with personal knowledge of the facts must

file an affidavit which sets out a prima facie claim for prejudgment attachment of the property

(3) a neutral magistrate must determine that the affidavit is sufficient before issuing the writ of attachment or replevin;

judicial involvement (4) there must be a provision for a reasonably prompt post-

attachment hearing for the debtor other possible factors:

(5) plaintiff has a pre-existing interest in the property such as a vendor’s lien and/or (6) show exigent circumstances (necessitating prompt action) and/or (7) assert a claim readily resolved by documentary evidence (i.e. business records)

Doehr-balancing test

o Like Fuentes, you will need a hearing for a prejudgment seizure, UNLESS there are exceptional circumstances

o Exceptional circumstances determined by formula: DI < (1-RE) x PI

Like Fuentes factors: (1) requiring factual affidavit up front instead of ; (2) neutral magistrate; (3) bond; (4) post-seizure hearing…also, (5) consideration of the nature of issues…can they be resolved on business papers alone (providing for a clean resolution); (6) P’s pre-existing interests; (7) exigent circumstances that called for prompt action

Enumerated factors captured by formula

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o DI…Bond; post-seizure hearing; D’s interest in property

o RE…factual affidavit up front, neutral magistrate, resolution on papers alone

o PI…need for prompt action; P’s preexisting legal interest in the property

-D’s interest < (1-Risk Error) x P’s interest…prejudgment seizure without a hearing is okay

-Here, placement of RE allows for some weighing in favor of D-Prejudgment seizure is okay if the PI discounted by the risk of error is greater than any potential harms suffered by D-High DI…then we need a high PI and a low RE in order to okay prejudgment seizure without hearing

POST JUDGMENT REMEDIES

DAMAGES [14-17]

Judicial remedies are the ultimate objective of the litigation process You need to be able to think about what you can get out of litigation before you start

litigation…Why:o (1) Civil litigation is costlyo (2) You have to state damages in your complainto (3) You have to think about settlement

Three types of damageso Money damageso Equitable damages (injunctive relief)

Injunctions, orders of specific performance, declaratory reliefo Costs of litigation

Piphus Positions for damages in regards to Constitutional rights damages

o (1) Compensatory damages are needed to deter punitive damages are damages that go beyond compensatory damages

and their concerns with deterrence o (2) Compensatory damages can occur just because rights were deprived, but

there must be some sign of injury to be compensated as well Here, you are compensating the victims for what right they were deprived of…

Due Process violation calls for:o (1) compensation for the lost accuracy of outcomeo (2) UNLESS, if you can prove an injury because of the deprivation of

these constitutional rights, then you may be able to receive more than nominal damages

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EQUITABLE REMEDIES & CONTEMPT [17-23]

Rule 65 directly order D to take or cease certain specific action only available when money damages would not be a sufficient remedy The criteria for granting a permanent injunction resembles those for granting a

preliminary injunction: (judges have discretion, but discretion is often limited by P’s specific prayer for relief)

o (1) whether P has actually succeed on the meritso (2) whether he has an adequate remedy at lawo (3) whether he risks imminent irreparable harmo (4) whether the balance of hardships weighs against issuance of an injunctiono (5) whether an injunction would serve the public interesto (6) whether the court can, as a practical matter, administer the injunction

ease of administratibility o for preliminary injunctions courts look at these same factors but in

essence look at the LIKELIHOOD that…P will succeed on the merits, will have an adequate remedy at law, etc.

difference between Temporary Restraining Order and preliminary injunctionso (1) how they are obtained

TRO…can be obtained ex parte PI…only be obtained when both parties are there to argue

o (2) duration TOR…few days, usually 10 or so PI…longer, and more importantly you can convert a PI into a

permanent injunction if you prevail on the merits

Enforcing equitable remedies – Contempto Because the court itself has ordered D to act, it cannot accept D’s failure to do

so with the kind of indifference that may attend D’s failure to pay P the amount of the money judgment

o Contempt…”civil-criminal hodgepodge” (1) criminal contempt…the distinguishing feature of criminal

contempt is that the penalty imposed is not designed either to compensate P or to prompt compliance in the future

(2) compensatory civil contempt…court may direct D to pay P an amount that compensate P for the harm caused by the violation of the decree

(3) coercive civil contempt…court may impose a penalty on D in order to prompt future compliance with the decree (rather than

65(d)(2)o injunction binds only those who receive actual notice and who are parties,

parties’ officers, agents, servants, employees, and attorneys, or “other persons who are in active concert or

Collateral bar rule: you can’t challenge the merits of court order, you can only challenge the issuance of it

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COST OF LITIGATION [23-25}

Litigation is expensive. 54(d)(1) provides that the prevailing party usually can recover its costs of suit. But these costs are ordinarily limited to the items listed in 28 USC § 1920 – filing fees and certain out-of-pocket expenditures.

o 54(d)(2): a claim for attorney’s fees and related nontaxable expenses must be made by motion unless the substantive law requires those fees to be proved at trial as an element of damages.

America is one of the few judicial systems in which the loser does not pay the winner’s attorney’s fees

54(d)(1) has been interpreted to authorize recovery of fees by Ds only when P’s suit is “frivolous, unreasonable, or without foundation.”

o But when civil rights Ps prevail, Ds must usually pay their fees whether or not the defenses were groundless (because of 1988)

Ordinarily, as in 1988, fee-shifting statutes authorize the award of a “reasonable” fee. In Venegas, this fee award is calculated by what is called the “lodestar” method by multiplying the hours worked by the lawyer times the lawyer’s hourly rate. In deciding whether the fee award is reasonable, the court may disallow hours that were spent on unsuccessful claims or inefficiently used. Regarding billing rate, ordinarily the court will use the attorney’s customary rate for paying clients, In Venegas, the court doubled the lodestar fee award because Mitchell performed “competently.” But the SC has frowned on such enhancements of lodestar amount.

Besides paying lawyers, litigants must initially pay filing fees and the like even if they are ultimately able to recoup them. Federal courts will excuse payment of those fees by people eligible to file in forma pauperis, 28 USC § 1915, but that option is not always available. The SC has sometimes found the imposition of these fees to violate due process when a “fundamental right” is involved and a litigant cannot afford the fees.

PLEADING MATTERS [26-29]

-pleading serves one function…notice-Complaint

-shows jurisdiction, statement of claim, relief 8(a)-Degree of specificity required

-8(a)’s requirement of a “short and plain statement of the claim showing that the pleader is entitled to relief” has generally been construed so as to place the fewest possible technical requirements on the pleader. The level of factual detail required has not been high; gaps in the facts are usually remedied through discovery or other pre-trial procedures.

-12(b)(6): failure to state a claim for which relief can be granted-12(e): motion for a more definite statement-12(f): motion to strike-8(d): pleading in the alternative is okay, regardless of consistency

-you can plead novel theories

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-Contradictory claims are forbidden when P knows one of the claims to be false. -However, all you need to do to be able to plead inconsistently is have a LITTLE BIT of uncertainty

CONSISTENCY AND HONESTY IN PLEADING [29-33]

-attorney must not file frivolous 11-Pleadings cannot be frivolous, and/or issued to harass or delay the adversary.-A lawyer who fails in this duty may be fined or otherwise sanctioned

-When the lawyer files (and signs) a pleading, he thereby “certifies that to the best of his knowledge, information ,and belief, formed after an inquiry reasonable under the circumstances, -- 11(b)

-(1) the pleading “is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;”-(2) “the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;”

-inquiry into the law-(3) “the factual contentions have evidentiary support, or if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery;”

-inquiry to the facts-(4) “the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or lack of information”

-Procedure for invoking 11-Normally proceedings to impose sanctions will be made by the opposing party, but the can also be made by the court under 11(c)(1)(B)

-Under 11(c)(2), an offending party gets a 21-day “safe-harbor” in which to withdraw or correct any bad pleading, and is he does so, there can be no sanctions no matter how outrageous the original misconduct

-the purposes of sanctions is the deter, but we don’t want to overdeter

-11(c)(3): judge can circumvent safe harbors provision in unusual circumstances (i.e. where the lawyer is acting in bad faith)

-Sanctions against party-11(c)(1): court may impose sanctions upon a “party that violated 11 or is responsible for the violation”

-Federal courts also have “inherent power” to sanction conduct that is in contempt of court, whether or not this conduct is covered by 11.

SCRUNTIINIZING THE LEGAL SUFFICIENCY OF PLAINTIFF’S CLAIM [33-34]

-There are incentives on the back end in terms of sanctions and on the front end in terms of pleading

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-Spelling out your theory…strategies-Upside of spelling out your theory

-You provide notice to judge and opposing counsel-Downside of spelling out your theory of “on the premises”…you might get a theory from a judge that helps your case

HEIGTENGED REQUIREMENTS OF SPECIFICITY [34-44]

-Special matters-In addition to the general requirement of a “short and plain statement of the claim” imposed by 8(a), certain special matters must be pleaded with particularity if they are to be raised at trial. These “special matters” are ones notice of which is thought to be necessary in order for the opponent to be able to prepare for trial. They are typically claims which the adversary will not be expecting unless his attention is specifically called to them.

-Catalogue of matters: These special matters, which are listed in Rule 9, include the following

-any denial of any party’s legal capacity to sue or be sued 9(a)-the circumstances giving rise to any allegation of fraud or mistake 9(b)

-however, malice, intent, knowledge and other conditions of a person’s mind may be alleged generally -four explanations

-(1) notice-(2) limits frivolous lawsuits

-However, heightened requirements of pleading for fraud claims may also eliminate meritorious lawsuits that are difficult to argue without discovery

-(2) injury to reputation-(3) limiting in terrorem value of suit

-any denial of the performance or occurrence of a condition precedent 9(c)-the existence of official documents and acts or judgments, on which the pleader plans to rely 9(d) and 9(e) respectively-material facts of time and place 9(f)-special damages 9(g)-certain aspects of admiralty and maritime jurisdiction 9(h)

-in pleading, the majority holds that a tie goes to P

Twombly How much of a change is this really?

o It is possible that the SC read the pleading requirement more narrowly here because of the burdensome discovery that was associated with this case (it was an antitrust case)

Is the burden of discovery a legitimate reason for raising pleading requirement?o YESo But, the application of strict pleading requirements should not extend to

cases where the D does not have expensive discovery. Without the

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expensive discovering the reasoning for heightened pleading falls on its face.

Protecting corporate interest at the cost of rejecting Ps’ claims It looks as though we are MOVING AWAY from a notice-pleading regime…

Into more of a fact-pleading regime

Iqbal-2 part test

-(1) Filter legal conclusions-(2) Plausibility

-Court’s reason for saying Twombly applies to all cases’ pleading-Twombly interprets Rule 8…Rule 8 applies to all cases…thus Twombly does apply to all cases

-Twombly may not be even applicable to all civil cases (but even if it is, it really should not change much…we should still focus on notice-pleading and deal with what seems to be a very elastic notion… “plausibility”)

-However, it seems as though the SC will continue to apply it to big business and big government cases

-It is important to note that this has all happened without Congress amended the FRCP

-RECAP: we seem to have moved from a notice pleading system to one of “flexible pleading”

DEFENDANT’S PRE-ANSWER MOTIONS [44-45]

-If claim is filed properly, then D must file and pre-answer motion and/or answer, and if not D defaults

Rule 12 All objections of a procedural nature, except for failure to state a claim Must be filed within 21 days or 60 days (with waiver) 12 (b)(1): that the court is not empowered to exercise jurisdiction over the

subject matter of the suit 12 (b)(2): that the court lacks personal jurisdiction over 12 (b)(3): that this particular court is not the roper location (venue) for the suit 12 (b)(4) & (5): that the circumstances or method for serving process were

incorrect Rule 12(b)(6) – failure to state a claim upon which relief can be granted –

which challenges the legal sufficiency of the allegations in the complaint Relation to motion for judgment on the pleadings

12(c) motion for judgment on the pleadings after complaint and answer, P can file a 12(c) motion

for judgment on the pleadings distinction from 12(b)(6)

with a 12(c) you are looking at only the pleadings

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with a 12(b)(6), the court is a only going to look at the complaint

12 (b)(7): that the suit shouldn’t go forward without a required party if D files a pre-answer motion within the 20-day period following service of the

summons and complaint, the deadline for filing an answer is extended 12(a)(4) if the court denies the motion of postpones its disposition, the D has until 10 days

after notice of the court’s action to file an answer if the court grants the motion, P will usually be granted leave to amend (which stars

the process again) or the suit will be dismissed; however, if a motion for a more definite statement is granted, the D has until 10 days after service of an amended complaint containing a more definite statement in which to file its answer

the purpose of 12(g) and 12 (h) is to prevent the pleader from using multiple pre-answer motions for different defenses and from omitting certain defense form motions or answers

12(h)(1): provides that four disfavored defenses – lack of jurisdiction over the person, improper venue, insufficiency of process, or insufficiency of service of process – will be waived forever if omitted from a pre-answer motion or, if not motion is made, from the answer.

12(h)(2): provide that three favored defenses – failure to state a claim upon which relief can be granted, failure or join and indispensible party, and failure to state a legal defense to a claim – can be made in any pleading, or by motion for judgment on the pleadings, or at trial on the merits

12(h)(3): states that the most favored defense – lack of jurisdiction of the subject matter – may be made at any time.

And this means any time…even on appeal by filing a pre-answer motion, the D extends the time for filing an answer

Why might you forego a pre-answer motion?o One reason is because we are often talking largely technical violations

Sometimes it is only a waste of time to have the opposing party properly serve you after performing improper service

o Sometimes if you spot a weakness in another attorney’s complaint, you may not want to make it evident to his client so that the client does not lose confidence in the weak attorney and fire what would have been an potentially weak adversary

o Attaching an affidavit to a motion to dismiss make cause you to show your hand too early and provide the opposition with insight into your case if you lose the motion

DEFENDANT’S DEFAULT [45-47]

-When D does not enter an answer, P moves to enter a default and then get that default to become a default judgment

Rule 55

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o (a) Entering a Default. When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party’ default.

o (b) Entering a Default Judgment. (1) By the clerk. If P’s claim is for a sum or a sum made certain by

computation, the clerk – on the P’s request with an affidavit showing the amount due -- must enter judgment for that amount and costs against a D who has been defaulted for not appearing and who is neither a minor nor an incompetent.

(2) By the court. In all other cases, judgment must be entered by the court in all other cases for a default judgment. A default judgment may be entered against a minor or incompetent person only is represented by a general guardian, conservator, or other like fiduciary who has appeared. If the party against whom a default judgment is sough has appeared personally or by a representative, that party or its representative must be served with written notice of the application at least 3 days before the hearing. The court may conduct hearing or make referrals – preserving any federal statutory right to a jury trial – when, to enter or effectuate judgment, it needs to:

(A) conduct an accounting; (B) determine the amount of damages; (C) establish the truth of any allegation by evidence; or (D) investigate any other matter

o (c) Setting Aside a Default or a Default Judgment. The court may set side an entry for default for good cause, and it may set aside a default judgment under 60(b).

the entry of default, on the other hand, may be fairly routine; unless D has filed an answer, the clerk may enter default when the time to answer expires. At that point, the D is entitled to notice of further hearings only if it has entered an “appearance.”

When the party is blameless and the attorney is at fault, the former interests control and a default judgment should ordinarily be set aside. When the party is at fault, the latter interests dominate and the party must adequately defend its conduct in order to show excusable neglect.

Filing an answer is not absolute protection against being held in default; a D who fails to participate in the lawsuit after failing the answer may find his answer stricken and his default entered. Rule 37(b)(2)(A)(iii)

A default in theory closes litigation and finds D liable to Po The merits are decided

However, in a hearing for default judgment one can contest how much D is liable for in relief to P

There is a sense of uneasiness in finding D liable for certain damages when a judge has not even heard his case in an adversarial system

o The solution for lack of “adversariness” is allowing for greater judicial activism

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the truth is courts are even uneasy about entering a default and the rules provide judges with discretion in 55(c)

three factors in entering a default: (Shepard)o (1) Whether P will be prejudiced

preparation prejudice if the delay caused by the D’s failure to enter a timely response

causes P to forego certain aspects of its case o i.e. a witness moves and thus makes it P’s case weaker

o (2) Whether D has a meritorious defense does D have a case if we move to trial the standard will probably be one determining whether the defense is

good at law…even more lenient the flexible plausibility standard if the defense if one of complete denial the evaluation of it may be a

bit more stricto (3) Whether culpable conduct of D led to default

culpable conduct…the conduct of D must display either an intent to thwart judicial proceedings or a reckless disregard for the effect of its conduct on those proceedings

where the party in default satisfies the first two requirements for relief and moves promptly to set aside the default before a judgment is entered, the district court should grant the motion if the party offers a credible explanation for the delay that does not exhibit disregard for the judicial proceedings

55(c) leaves to the discretion of the trial judge the decision whether to set aside an entry of default. However, a strong preference for trials on the merits in federal courts had led to the adoption of a somewhat modified standard of review where defaults are involved

once a D fails to file a responsive answer, he is in default, and an entry of default may be made by either the clerk or the judge. A default judgment can be entered by a clerk only is a claim is liquidated or, if a claim is unliquidated, by the judge after a hearing on the damages. A default can be set aside under Rule 55(c) for “good cause shown,” but a default that has become finals as a judgment can be set aide only under the stricter Rule 60(b) standards for setting aside final, appealable orders

DEFENDANT’S ANSWER [47-49]

Three possible responses to a complaint:o Pre-answer motiono Do nothing and hope for the best (no default)o File an answer

Answer must be filed within 21 or 60 (with waiver) days from service of the complaint

8(b)(1) requires a D, in the answer, to “admit or deny the allegations asserted against it by an opposing party.”

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8(b)(1) requires a D, in the answer, to “admit or deny the allegations asserted against it by an opposing party.”

o This is usually done by going down each paragraph in the complaint and stating that it is either admitted or denied. However, a paragraph. And even a sentence, may contain a number of different allegations (although ideally this should be avoided…see 10(b)). If so, the answer should indicate which portions are admitted and which denied, if they cannot be admitted or denied in toto.

A general denial may be made when party intended to deny all allegations, even those pertaining to jurisdiction. 8(b)(3)

o However, not all general denials are made alike Rule 1 puts a little pressure to make more specific denials by way of

forcing pleadings that ensure speedy and just trials Rule 11 puts a little pressure on general denials by way of threatening

sanctions on grounds that all the denials made in general were made in good faith

o General denials are allowed but are not particularly favored If D “lacks knowledge or information sufficient to form a belief as to the truth of

an allegation,” it may so state in its answer, which has the effect of a denial 8(b)(5)

8(c): requires an answer to specifically plead “affirmative defenses” o the many of them are enumerated in 8(c)(1)

8(d): averments in a pleading to which a responsive pleading is required, other than those as to the amount of damage, are admitted when not denied in the responsive pleading. Averments in a pleading to which no responsive pleading is required or permitted shall be taken as denied or avoided.

When D admits an allegation of the complaint, that allegation is taken as true for purposes of litigation whether or not it is accurate in fact 8(b)(6)

DEFENDANT’S AFFIRMATIVE DEFENSES [49-51]

8(c) lists 19 specific defenses (NOT A COMPLETE LIST) which must be explicitly pleaded in the answer, if the D is to raise them at trial. Among the more important of these “affirmative defenses” are contributory negligence, fraud, res judicata, statute of limitations, and illegality.

o any new matters or issue not embraced by the complaint should be pleaded as an affirmative defense.

Rationale: notice-giving function Three Clearly factors in determining whether the claim is an affirmative defense

o Policy…one bringing the matter should have the burden of establishing ito Fairness…D may have more knowledge that the P

Facts within D’s knowledgeo Probability…judicial i.e. wholly nonstatistical estimate of the probabilities of

the situation, with the burden being put on the party who will be benefited by a departure of the supposed norm

ADs may be raised in 12(b)(6) motion to dismiss

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DEFENDANT’S COUNTERCLAIMS [51-53]

Rule 13 (a) Compulsory Counterclaim

o (1) In General. A pleading must state as a counterclaim any claim that – at the time of its service – the plead has against an opposing party if the claim

(A) arise out of the transaction or occurrence that is the subject matter of the opposing party’s claim; and

(B) does not require assign another party over whom the court cannot acquire jurisdiction

o (2) Exceptions. The pleader need not state the claim if: (A) when the action was commenced, the claim was the subject of

another pending action; or (B) the opposing party sued on its claim by attachment or other

process that did not establish personal jurisdiction over the pleader on that claim, and the pleader does not assert any counterclaim under this rule

(b) Permissive Counterclaim. A pleading may state as a counterclaim against an opposing party any claim that is not compulsory.

(g) Crossclaim Against a Coparty. A pleading may state as a crossclaim any claim by one party against a coparty of the claim arises out of the transaction or occurrence that is the subject matter of the original action nor of a counterclaim, or if the claim related to any property that is the subject matter of the original action. The crossclaim may include a claim that the coparty is or may be liable to the crossclaimant for all or part of a claim asserted in the action against the crossclaimant.

o Never compulsory Not worried about judicial economy

4 tests for determining a compulsory CC…”transaction or occurrence”o Are the issues of fact or law raised by the claim and CC largely the same?o Would res judicata bar a subsequent suit on D’s claim absent the compulsory

CC rule?o Will substantially the same evidence support or refute P’s claim as well as

D’s counterclaim?o IS there any logical relation between the claim and the counterclaim?

Compulsory CCs ensure judicial economy and consistent economy

VOLUNTARY DISMISSAL [53-56}

Rule 41. Dismissal of Actions. (a) Voluntary Dismissal

o (1) By the Plaintiff (A) Without a Court Order. Subject to Rules 23(e), 23.1(c), 23.2,

and 66 and any applicable federal statute the plaintiff may dismiss an action without a court order by filing:

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(i) a notice of dismissal before the opposing party serves either an answer or motion for summary judgment; or

(ii) a stipulation of dismissal signed by all parties who have appeared.

(B) Effect. Unless the notice or stipulation states otherwise, the dismissal is without prejudice. But if the plaintiff previously dismissed any federal- or state- court action based on or including the same claim, a notice of dismissal operates as an adjudication on the merits.

o (2) By Court Order; Effect. Except as provided in Rule 41(a)(1), an action may be dismissed at the plaintiff’s request only by court order, on terms that the court considers proper. If a defendant has pleaded a counterclaim before being served with the plaintiff’s motion to dismiss, the action may be dismissed over the defendant’s objection only if the counterclaim can remain pending for independent adjudication. Unless the order states otherwise, a dismissal under this paragraph (2) is with prejudice.

Three aspects of 41(a)(1)(A)(i)o (1) a filing under the Rule is a notice, not a motion. Its effect is automatic: the

D does not file a response, and no order of the district court is needed to end the action

o (2) the notice results in a dismissal without prejudice (unless it states otherwise), as long as the plaintiff has never dismissed an action based on or including the same claim in a prior case

o (3) the D has only two options for cutting off the P’s right to end the case by notice: serving the P an answer or a motion for SJ

however, even when voluntary dismissal is sought before an answer or motion for SJ, some courts have bee unwilling to allow it if the merits of the case have already been addressed

ESTABLISHING SIZE AND STRUCTURE OF THE DISPUTE

IMPLEADER [56-59]

Rule 14. Third-Party Practice (a) When a Defending Party May Bring in a Third Party.

o (1) Timing of the Summons and Complaint. A defending party may, as a third-party p, serve a summons and complaint on a nonparty who is or may be liable to it for all or part of the claim against it. But the third-party P must, by motion, obtain the court’s leave if it files the third-party complaint more than 14 days after serving its original answer.

o (2) Third-Party D’s Claims and Defenses. The person served with the summons an TP complaint – the “third-party D”:

(A) must assert any defense against the TP P’s claims under Rule 12 (B) must assert any counterclaim against the third-party P under 13(a),

any may assert any counterclaim against the TP P under 13(b) or any crossclaim against another third-party D under 13(g)

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(C) may assert against the P any defense that the TP P has to the P’s claim; and

(D) may also assert against the P any claim arising out of the transaction or occurrence that is the subject matter of the P’s claim against the third-party claim against the TP P

o (3) P’s Claims Against a TP D. The P may assert against the TP D any claim arising out of the transaction or occurrence that is the subject matter of the P’s claim against the TP P. The TP D must then assert any defense under Rule 12 and any counterclaim under 13(a), and may assert any counterclaim under 13(b) or any crossclaim under 13(g).

Rule 14 does not require that 3D be liable to the original P, but rather Rule 14 only requires that 3D be liable to the original D

o The TP claim need not be based on the same theory as the main claim, and impleader is proper even though the TP D’s liability is not automatically established once the TP P’s liability to the original P has been determined

Whether to allow claims of impleader rests in the sound discretion of the court…the court should generally allow impleader of a proper third-party action unless it will result in some prejudice to the other parties

o Since 14 relies on the discretion of the court in its application, the Rule had been broadly interpreted. However, there is still a requirement of some casual connection between the original action and the action brought in the third-party suit

D may file an independent claim against a 3D under Rule 18 o Expansions on the impleader action

P may file an independent claim against 3D brought in by a D under Rule 20o You can do this, in theory, but there are issues with PJ, SMJ, and venue

INTERPLEADER [59-62]

Rationale behind interpleadero The stakeholder (plaintiff) could avoid the unfairness of inconsistent

judgments or multiple liability that might result if the claimants were to sue individually. Interpleader allows the stakeholder, fearing separate suits by individual claimants, to institute its own action in which all the claimants would be required to litigate their claims simultaneously.

Statutory v. Rule Interpleader (22) Some pair of claimants must be diverse with each other…the stakeholder must not

have the same citizenship as any claimant Nationwide service…ordinary rules for federal civil suits must be followed More than $500 must be in controversy…more than $75,000 (unless a federal

question is present) Stakeholder must deposit the amount in court…stakeholder does not have to deposit

the amount in court Stakeholder may claim that he is not liable to any of the claimants… Stakeholder may

claim that he is not liable to any of the claimants

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Rule 22 is concerned with multiple liability, while 1335 is noto Look to the language of the ruleo i.e. the truck driver may be exposed to multiple claims which he will not be

able to pay out completely multiple claims…not capped, but might run out

Both 22 and 1335 consider adverse claimantso i.e. state farm is not liable to any particular Ds, but has a cap on that it can

only distribute $20k…so multiple claimants must divvy it up common fund…capped

INTERVENTION [62-65]

Rule 24 (a) Intervention of Right. On timely motion, the court must permit anyone to

intervene who:o (1) is given an unconditional right to intervene by a federal statute; oro (2) claims an interest relating to the property or transaction that is the subject

of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest, unless existing parties adequately represent that interest

(b) Permissive Interventiono (1) In General. On timely motion, the court may permit anyone to intervene

who: (A) is given a conditional right to intervene by a federal statute; or (B) has a claim or defense that shares with the main action a common

question of law or fact Sometimes an intervenor has an obvious interest in the suit

o the intervenor might, for example, be someone who should have been joined but was not due to insufficient contacts with the forum state to support PJ

o 24(a) is generally used here sometimes, however, a person seeking intervention had a much less obvious interest

in the suit, as, for example, someone or some organization that is concerned about governmental action or policy

o 24(b) is generally used here permissive intervention is granted at the discretion of the court the court looks to monetary interests as a determinate for intervention

in this situation ultimate fallback: filing and amicus curiae brief

24 v. 19o 24 is interpreted a little bit more flexibly than Rule 19 compulsory joindero this is because 19 determines whether or not the case can proceed, and 24 only

determines whether a party can be added, not if the case as whole can proceed Intervention must be “timely”

o 4 McDonald factors (1) when the intervenor knew or should have know of his interest in

the case

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(2) whether there was prejudice to existing parties from the delay in seeking intervention

(3) whether there would be prejudice to the intervenor if intervention were denied, and

(4) any unusual circumstances

CLASS ACTIONS [65-80]

Rule 23

The modern class action is one of the most versatile and powerful joinder devices, offering enormous savings of judicial resources but also providing a significant potential for abuse

The Problem of Representation

adequacy of representation concerns have generally focused on the adequacy of class counsel and ensuring that the named class representatives will protect the interests of the other members of the class

judges have a duty to participate actively in presiding over class action because of the binding nature of these kinds of suits over any individual who may have fell under the particular class at hand

o the judge keeps an eye on the adequacy of the representationo if it looks like the class action is not doing what it is supposed to do, the

judge can DECERTIFY a class action the judge can dismiss class counsel the judge can require counsel to take certain steps

o these activist duties of judge in a class action context are unique and not traditional in traditional civil litigation

23(e)o judges are required to scrutinize the outcome of class action litigation

lawyers are on a short leash because they can be forced to resign or can be removed from the case

Standards for certification

4 prerequisites for the 3 types of classes:o (1) numerosity

consider whether the number is sufficiently large to warrant moving away from traditional practice

there is no magic numbero (2) commonality (common question of law or fact)

we are looking for a common question of law or fact that proves economic and produces efficiencies

o (3) typicality is the named plaintiff’s claim typical of the class?

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Claims of the named Ps must be substantially similar to the class as a whole

SC has observed that the commonality and typicality requirements tend to merge

o (4) adequacy of representation is the named P’s representation adequate? In theory, the named P should be running his case as an individual P

would The P must demonstrate that they have no interest that are

antagonistic to other members of the class and that they have a competent attorney

If claims are not being adequately represented the court may dismiss the named P or it may break the class into subclasses

3 types of class actionso (b)(1)

common pool kind of like interpleader

(b)(1) class action is mandatory, based on the necessity for a class action to avert unfairness that could result from multiple individual suits

there is a close identity of interests and compelling reasons to avoid litigation

these categories involve situations like those calling for compulsory joinder under Rule 19

in a (b)(1)(A) class, the unfairness is to the party opposing the class who may be subjected to “inconsistent or varying adjudications” resulting in “incompatible standards” if there were individual suits by class members.

A (b)(1)(B) class action, which is also mandatory without a right to opt out, is based on unfairness to missing class members if there were individual suits by class members.

i.e. where individual suits could exhaust a “limited fund”o (b)(2)

suits for injunctive or declaratory relief against a party who had acted or refused to act on grounds generally applicable to the class

i.e. civil rights suits, institutional reforms suits Although common issues must predominate under 23(b)(3), no

such requirement exists under 23(b)(2) Members of (b)(2) class actions are not permitted to “opt out” Cases might be brought for injunctive or declaratory relief would

also be recoverable, stating that (b)(2) “does not extend to cases in which the appropriate final relief relates EXCLUSIVELY or PREDOMINATELY to money damages.”

o (b)(3) more problematic

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requires that “questions of law or fact common to class members predominate” and that a class action is “superior” to other available methods for the adjudication of the controversy.

Unlike the other categories, a (b)(3) class action can be for monetary damages, and so there was now money to be had, providing new entrepreneurial incentives for the plaintiffs’’ bar

i.e. antitrust, securities fraud, and civil rights use in mass torts litigation has become more prevalent

however, since torts often involve individualized circumstances as to a class member’s exposure to an environmental or other condition or use of a product, as to damages, class certification is still hard to come by in such cases

o however, it might be possible to certify in mass accident cases

two additional requirements: (1) predomination of common questions and

o unclear how predominate the claim must be, but it must be pretty significant

o can you manufacture predominance? Severe non-predominance and certify

predominate issues Usually will not fly in court

(2) superiority to other available methods for adjudication of the controversy

o what are the efficiencies to be gained and the costso the relationship between judgments in class actions and

individual trials When class certification is denied

o Suit will proceed on an individual basiso You can still join peopleo Who really benefits from class certification?

The D stands to benefit from class actions the most Efficiency, ease, finality

Why does D like to fight class certification? Defend and conquer strategies

o Some Ps will also drop off if it is a negative lawsuit Typically the lawyer’s fees…if there is a risk of fee-shifting

o If you lose, you have to pay the feeo If you settle, you may have to pay the feeo Your own lawyer’s fees

Most Ds defend against certification because it is habit The decision to certify is within the broad discretion of the court, but that

discretion must be exercised within the framework of 23. o The party seeking certification bears the burden of proof

Notice

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o For a class to be certified under 23(b)(3), “the court must direct to class members the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort.

o 23(b)(1) and (b)(2) class actions are mandatory, that is, there is no requirement that the class members receive notice or have a right to opt out

judges may, but rarely do, require notice under an amendment to 23(c) Opt-out rights

o In (b)(3) suits for damages, the notice to the putative class members will tell them that they need not take any action if they want to be a member of the class, and that unless they mail in an “opt-out” form, they will be excluded as a member of the class and can pursue the claim on her own is she wishes.

DISCOVERY

THE DISCOVERY DEVICES [80-85]

discovery comes after a suit bypasses dismissal and parties’ claims are realized discovery works to introduce evidence up front so that parties will know the

strength and weakness of their cases discovery also limits the surprise aspect of litigation so as to move from an

theatrics and toward decision on the merits the risk of surprise actually has the effect of pushing the parties closing to the truth

o however, the elimination of the risk of surprise may alleviate the pressure put on lawyers and witness to tell the truth

expected value of a lawsuito E (expected value) = (J (judgment) x P (probability)) – C (cost)

There real variable here is the probability of success on the merits Discovery helps you realize this probability

This helps you realize in turn the settlement number Discovery does not just flesh out facts, it also provides an incentive

to settle Another important purpose of discovery…preservation of evidence Discovery also narrows the issues that the parties are disputing about

There is a promise to broad discoveryo Reality: broad discovery would be great in a cost-free environment, but it is

very expensiveo do liberal discovery rules further the goals of litigation?

It may not if you are attempting to bankrupt the parties through discovery

Judicial orders act the manage discovery so as to restrain it from becoming to fiscally or temporally burdensome

o However, it turns out that although empowered, judges generally operate as hands-off in discovery matters

District court judges often kick it disputes down to the magistrate level

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Judges may also use protective orders to maintain discretion 26(c)

Discovery does not begin with the devices, but rather the complainto Complaint may be your best guidepost for how to work through the P’s claim

Thus, P should draft his complaint as short and plain so as not to reveal too much information…minimalist in what you put forward without failing to meet pleading requirements

These devices are in chronological order in the way you would approach them Rule 26…Discovery (1) Initial Disclosure

o the rule direct only that a party disclose witnesses and documents it “may use to support its claims or defenses.” There is thus no current directive to turn over harmful information unless it is formally requested through discovery.

you have to discuss relevant material it is the party doing the disclosing to determine what is relevant for the

purposes of this initial disclosureo Initial disclosure is enforced by Rule 37(c)(1), which forbids use of

materials that should have been disclosed but were not Use in trial, pre-trial, or discovery proceedings forbidden Limits the element of surprise 26(e)...Supplementing Disclosures and Responses

o Disclosure has not eliminated formal discovery because it does not include information harmful to the disclosing party’s position; only discovery exists to elicit that sort of information

o Initial disclosure must occur before any other form of disclosureo Initial disclosure provides for a jumping off point

(2) Production of Documents & Inspection of Lando Rule 34o Why might we go with document production next?

Easy to initiate Documents don’t lie They may be destroyed by the other side, so you have to get to them

quick Notes on Document Inspection

o 34 permits parties to demand an opportunity to inspect, copy, test, or sample documents, electronically stored information or tangible things possessed by other parties

o P must request documents with “reasonable particularity” Description of precise items or categorical description Asking for docs by categories allows for the problem of being too

specific (searching for the “smoking gun” or not specific enough in requesting docs

o You may reach for electronic files rather than paper docs because emails, etc. are written with greater candor and thus may provide more information

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o Because 26(a)(1)(A)(ii) calls for parties to disclose some pertinent information about such materials before formal discovery begins, parties may be able to identify and describe with specificity those they wish to request under 34

o D serves a written response specifying the items that will be made available or objecting to some or all of the requests

As to those it agrees to produce, D should assemble the requested documents in its “possession, custody, or control”

The “control” idea has been extended to require efforts to obtain documents from others, where the party responding to discovery is believed to have “influence” over the possessor of the documents

o When the request seeks all documents falling within a category, the responding party usually has to search its files to collect responsive material. The documents are usually made available in the location where they are kept if they are numerous.

o 34(b) requires that documents either be produced as they are kept by the producing party, or groups according to the specification of the request. With hard copy materials, the discovering party gets to look through the docs and copy some or all of them

o 34 also authorizes entry onto property for purposes of testing or measuringo if a party wants to examine materials or premises possessed by a nonparty, a

similar procedure is used but a subpoena is required. 45(a)(1)(C) authorizes a subpoena to command a nonparty to produce designated documents in its control or permit inspections of premises. 45(c)(1), however, requires a party to “take reasonable steps to avoid imposing undue burden or expense” on a person subject to a subpoena, and it may be that courts will be more solicitous of nonparties’ objections to subpoenas than parties’ objections to discovery

(3) Interrogatorieso Rule 33

Notes on Interrogatorieso 33 permits any party to send written questions to another party that must be

answered under oatho interrogatories are often problematic

they are too susceptible to abuse however, 33(a) now limits the number of interrogatories to 25

per party absent stipulation or court order they are almost invariably written by lawyers who wish to avoid

disclosing harmful information and there is no opportunity to follow up with an interrogatory

they are ill-suited to effective exploration of much information that is critical in litigation

o interrogatories can, however, be very useful for identifying witnesses and discovering the location of docs or other tangible evidence, although that task may be eased by 26(1) initial disclosure

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o they can also be useful in obtaining precise information or parties facing large organizational opponent

interrogatories are generally only useful in fleshing out the pleadings

o given their restricted nature, interrogatories still raise drafting problemso “contention” interrogatory

33(a)(1) makes it clear that questions are not improper merely because they seek to elicit an opinion, even where they seek an opinion about the application of law to fact

in practice, contention interrogatories are an effective way of exploring the basis for an adversary’s position, but the court may defer the duty to answer until discovery has been completed

o despite the difficulties presented by interrogatories, they still serve important purposes, particularly providing the predicate for a motion for SJ based on non-existence of evidence supporting a critical part of P’s case

(4) Depositionso depositions are useful

allows for follow upso when defending a deposition, you normally “woodshed” your witness

prep him for the deposition…keeping answers limitedo depositions often provide unexpected revelationso 30(b)(1) allows any party to schedule a deposition on “reasonable written

notice”o 30(2)(A) imposes a numerical limit of en depositions per side, and 30(d)(1)

limits each deposition to “one day of seven hours”o the interrogating party can also ask a witness to bring docs along, but that

invokes the time limits of 34. See 30(b)(2)o If the witness is a party, nothing further need be done to compel the witness to

attend, and 37(b) sanctions can be applied when a party witness fails to appear. See 37(d)

o Otherwise, the party seeking discovery must also serve a subpoena to ensure the attendance of the witness. See 45

o Anything that is transcribed by the reporter (“on the record”) may be available for use in the case as though it occurred in open court (to the extent that it is admissible)

o Objections Objections are limited 30(c)(2) directs that objections “must be stated concisely and in a non-

argumentative and nonsuggestive manner.” It address that a lawyers may instruct a witness not to answer only to preserve a privilege to enforce a limitation on discovery imposed by the judge in this case, or to permit a motion for a protective order, In addition, 30(d)(2) authorizes sanctions on anyone who “impedes, delays, or frustrates the fair examination of the deponent,” and for other misconduct in a deposition.

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o Depositions a now permitted by video, audio, etc. rather than by the traditional stenographer. See 30

Video may be less boring than reading a transcripto 31 authorizes depositions on written interrogatories, with the attorney

preparing written questions which the reporter then reads to the witnesses, recording the answers.

Although this is a cost saving alternative, it is rarely employed o 27(a) also authorizes deposition before suit is filed to “perpetuate testimony”

where the party anxious to take the deposition expects to be a party to a suit but is presently unable to bring it, and fears the witness may become unavailable by the time the case is filed. Notice should be given to all persons likely to be named parties so that they can attend and ask questions also.

(5) Physical and Mental Examinationso Rule 35 o Only discovery tools for which stipulation or advanced court approval is

necessaryo 35(a) provides that when the mental or physical condition of a party or a

person under the legal control of a party is “in controversy” a court may order the person to submit to an examination by a “suitably licensed or certified examiner.”

Schlagenhauf (US SC) There must be “an affirmative showing by the movant that each

condition as to which examination is sought is really and genuinely in controversy”

There must be a “good cause” for the examination Request for Admissions

o Rule 36o Usually the next step after depositionso Not really like an aspect of discovery because you are not discovering

anything new, but rather affirming things that you already knowo This is no different than responding to complaint in that you have to do a

reasonable inquiry into the mattero You can respond that you have insufficient knowledge, you can reject them,

and you can request that the alleged admissions be reworded so you can properly respond to them

Timing and Sequenceso Rule 36

Discovery Sequences and Tacticso the complaint is often the P’s first discovery deviceo 26(f)(3) directs the parties to confer and design a “discovery plan” shortly

after the suit is filed, and to submit the plan to the court in time for consideration in connection with the 16(b) scheduling order (which is, among other things, to set a time limit for discovery). 26(d) permits formal discovery only after that conference has occurred, although initial disclosure may occur before, during, or after the conference

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o there are many different tactics to approach discovery note: under 30(a)(2)(A)(ii), it is significantly likely that an early

witness will not be subject to recall later in the discovery process when more information is available for questions

MANAGING SCOPE AND BURDEN [85-91]

the concept of relevancy is critical to the scope of discoveryo Evidence is often dubbed relevant when it has the ability to make a fact in

the matter at hand seem more or less probable The fact would be of consequence to the determination of the action

26(b)(1) authorizes discovery of information “relevant to any party’s claim or defense”

o relevancy here is interpreted pretty liberally judges have the power and are sometimes required to limit discovery. See 26(b). One must consider whether the need for discover outweighs the other party’s need for

privacy

Collateral Purpose Problem a party cannot request an item with no other purpose but to use it to embarrass,

bankrupt, etc. the other party however, a protective order provision may be instituted to control the public

dispersion of confidential information exposed through discovery

Court noted that under 34, the party from whom discovery is sought has the burden of showing some sufficient reason why discovery should not be allowed, once it has been determined that the items are sought properly within the scope of 26(b).

o Merely because compliance with a “Request for Production” would be costly or time-consuming is not ordinarily sufficient reason to grant a protective order where the requested material is relevant and necessary to the discovery of evidence

Aside: How can you limit discovery or dissemination of items discovered?o Ask if items are relevanto ask for protective order

Also, economic considerations have to be pertinent if the court is to remain faithful to its responsibility to prevent “undue burden or expense.” 26(c).

o Producing party must foot the bill unless the requesting party has inflicted an undue burden

Zubulake seven factor test for deciding whether to shift the cost of electronically stored information

o (1) the extent to which the request is specifically tailored to discover relevant information

o (2) the availability of such information from other sourceso (3) the total cost of production, compared to the amount in controversyo (4) the total cost of production, compared to the resources available to each

party;

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o (5) the relative ability of each party to control costs and its incentive to do soo (6) the importance of the issues at stake in the litigationo (7) the relative benefits to the parties of obtaining the information

33(d) gives the responding party the option to produce business records where the answer can be derived from them and “the burden of deriving or ascertaining the answer is substantially the same for either party.”

o It may take quite some time for P to find what he was looking for if given a great amount of docs

34 does not have a “look at my files” option similar to the provisions of 33(d)o however, 34(b)(2)(E)(i) gives the producing party a choice between

organizing the produced docs in accordance with the requests or as they are kept in the usual course of business

these types of cases (listed above) all invoke privacy issues along with discovery issues

EXEMPTIONS FROM DISCOVERY [91-98]

when the material, though relevant, is not required to be produced

Rule 26(b)(3)

Work-product doctrine

Hickmano The Court held that the attorney’s mental impressions (i.e., his recollections

of what witnesses had told him in oral statements) were absolutely privileged. But existing transcriptions of the interviews and signed statements were only qualifiedly privileges.

Materials under work product rule are exempt from discovery Some suggests the work product immunity is largely

designed to protect lawyers from themselves and their own unprofessionalism, rather than from their adversaries

Using an interrogatory to get around the work product ruleo If you continued to dig deeply and found something that cuts against you, and

P poses an interrogatory about the witness (who he knows about), you have to disclose and P gets info on your dime

What if you been presented with the interrogatory before you got the information?

Did not have to disclose at the time. But there is an obligation to supplement when the information is found.

26(b)(3) permits discovery when mental impressions are the pivotal issue in the current litigation and the need for the material is compelling

o sufficient need must be showno if you can replicate it, then you cant overcome the work product exemptiono is all work product the same?

Ordinary work product v. opinion work product

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Court will protect when ordinary work product is disclosedo Usually redacted in document

You can get opinion work product too, but it would have to be a really high showing of need

o Conclusions can be kept to oneself work product protection is available only if material is produced in anticipation

of litigationo to decipher whether something was prepared in anticipation of litigation is not

an easy task courts generally look to the date the doc was created, date of attorney

involvement, date of filing for the suit how long should this information be protected after trial?

Correlations between Hickman and 26o 26(b)(3)(A)…qualified immunity

exceptions 26(b)(4)…substantial/hardship 26(b)(1)

o 26(b)(3)(B)…absolute immunity Work product rule v. 26

o WPR covers only lawyer, 26 covers the lawyer’s agentso 26(b)(3) covers only documents and tangible things

in Hickman, 26 would have had no bearing on oral reports

Attorney-client privilege

Requirements for AC privilegeo (1) where legal advice of any kind is sought (2) from a professional legal

advisor in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) except the protection be waived.

Expert testimony

26(a)(2) requires disclosure of expert testimony, and 26(b)(4)(A) permits the deposition of each testifying expert

o Production of expert testimony is provided to allow for proper cross-examination, not for cutting costs

Under 26(b)(4)(B), the facts known and opinions held by non-testifying experts who are retained or specially employed in anticipation of litigation or preparation for trial are subject to discovery only in exceptional circumstances.

o Proving exceptional circumstances is a pretty heavy burdeno We do not want people to build case off of someone else’s work

The court found that the persuasive authority favor application of 26(b)(4)(B) to non-testifying in-house experts (“retained or specially employed”). To rule otherwise

27

would encourage economic waste by requiring another employer to hire independent experts to obtain the protection of 26(b)(4)

o We do not want to create a disincentive to maintain safety measureso However, general employees not specially employed on the case are not

protected by 26(b)(4) Designation of special and general employee is sometimes cloudy They should be treated as ordinary witness under 26(b)(1) and their

work should be treated under the work product doctrine under 26(b)(3) Discovery experts are important in testimony because some substantive law claims

require it Expert…”a witness qualified as an expert by knowledge, skill, experience, training,

or education,” where “scientific, technical, or other specialized knowledge will assist a trier of fact to understand the evidence or determine a fact at issue.” FR of Evidence, 702.

o Experts can offer opinions in their testimony 26(b)(4) provides special protections for expert information because the requesting

party can get their expert information themselves 26(a)(2)(B)(ii) requires that the testifying expert’s report include “the data or other

information considered” by the expert in forming the opinions to be offered in evidence.

o Some question whether this oversteps the work product rule afforded the attorney

37(c)(1) provides that opinions that should have been disclosed but were not should be excluded at trial, and courts have often done so

26(b)(4)(C) directs that the party seeking discovery pay the fee of an expert for responding to discovery

A lawyer’s decisions about which people to use in confidence for which purposes in preparing a case for trial is as central to lawyering strategy as one can get

o Nontestifying experts are not subject to discovery Possible exceptions to 26(b)(4)(B)

o Equipment needed for test had been destroyedo Circumstances disable the hiring of another expert

Small number of experts in field is small and their time has already been fully retained by others

26(b)(4)(B) permits a party to engage in discovery with respect to information consultative experts acquired prior to being retained by an opposing party

remember: 26(b)(4)(B) only limits discovery of material prepared in anticipation of litigation

we do not like to see lawyer’s out there “shopping” expertso you could go out and hire/retain all the experts (negative and positive) on the

market so as to corner the market and also help you develop your caseo then, you keep those who are not very helpful as non-testifying so as to avoid

discovery related to them Should a testifying expert be able to change as a non-testifying expert

(as they did here)? this is really a matter of strategy for the lawyer

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probably not regulate it so as to encourage lawyers to maintain their flexibility

at the same time, we do not want non-testifying experts to sell testimony to the opposing side

once the experts all become non-testifying, they essentially fall under the work party

Here, can you notice the deposition of the Shell “non-testifying experts” as employees?

o Yes, but you cannot avail yourself of their expertise…you have to kept to the facts

26 provides a ton of good stuff that comes along with the discovery of experts…former testimony, research, articles, etc.

Sometimes the court allows you to avail yourself of the expertise

Aside: a lot of court intervention in discovery

INVESTIGATION – FACT GATHERING WITHOUT JUDICIAL ASSISSTANCE [98-99]

Why might people contemplate informal discovery?o People may be inclined to open up more easilyo Whether discovery is formal or informal, you can learn something about your

case and the other person’s caseo If people are willing to talk, talk to them

Don’t forget about informal discovery, sometimes it is just as/more effective than formal discovery.

o if you get what you want, you can follow up with formal discovery, and hopefully the testimony will prove consistent

ENFORCING DISCOVERY RULES – SANCTIONS [99-101]

Rule 26. Duty to Disclosre; General Provisions Governing Discovery Rule 37. Failure to Make Disclosures or Cooperate in Discovery; Sanctions

Sanctions provide that if you do not initially disclose information pertaining to damages, then you cannot bring information about damages into trial

You don’t get 37(b) sanctions for an inadequate response, you only get it for a complete failure to respond

When responses are evasive or incomplete, you can under 37(a)(1) compel responses

o However, under 37(a)(4) a failure or incomplete response counts as no response

37(b)…any response counts as a response…sanctions kick in when there is an absolute failure to respond

37(a)…only for purposes of filing your motion to compel responses

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Rule 37(a) also requires that parties meet and confer before bringing motions to compel

o This is because courts don’t like discovery motions and they would rather you work it out privately

The court will often move for a motion to complete orally…and this applies even though it is oral

o This could lead to problemo Especially if there is no court reporter. Cine.

Limiting principles in sanctionso Generally courts should avoid punishing someone by deciding on the merits

for disobedienceo this should only occur if the disobedience would have affected the

outcome in some way…volition (serious intention) is required on some level

i.e. the withholding of important evidence, etc. volition may be somewhat contradictory with the standard of

gross negligence put forth by the court 37 sanctions

o this rule provides a spectrum of sanctions. The mildest is an order to reimburse the opposing party for expenses caused by the failure to cooperate. More stringent orders striking out portions of the pleadings, prohibiting the introduction of evidence on particular points and deeming disputed issues determined adversely to the position of the disobedient party. Harshest of all are orders of dismissal and default judgment.

Threefold purpose of these sanctionso Preclusionary orders ensure that a party will not be able to profit from its own

failures to comply Offsetting initiatives…i.e. evidence is banned

o Specific deterrent to failing to comply with court orderso General deterrents to failing to comply with court orders. National Hockey

(US SC). Punishment can only be used when the party at hand is, at some sense,

at fault Merits-based sanction is authorized if the discovery order not complied with was

done o willfully,o in bad faith, o or with fault of the petitioner

the line is drawn at gross negligence Who’s gross negligence?

o The lawyer. Why should we be punishing/sanctioning the client for the lawyer’s negligence?

Because the client has a role in picking the lawyer

Would about the working-class individuals who cannot pick their order?

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So much for a so-called neutral role Imposing fines or costs on a party is different form deciding the merits of the case

against it die to discovery violations. The need to base judgments on the merits of the case has constitutional stature.

A related due process requirement is the insistence that fault be found before extreme discovery sanctions are used.

Some courts have developed multifactor to test to guide the imposition of “ultimate” sanctions

o I.e. (1) the public’s interest in expeditious resolution of litigation; (2) the

court’s need to manage its docket; (3) the risk of prejudice to the opposing party; (4) the public policy favoring disposition of cases on the merits; and (5) the availability of less drastic sanctions

extreme sanctions are used to both penalize and deter E-discovery is protected by 37(e) from sanctions so long as it is done in good faith

SUMMARY JUDGEMENT

short of trial, the way of adjudicating is achieved through SJ

BURDEN SHIFTING [102-108]

Rule 56

SJ provides an opportunity for either party to win a case prior to trial by demonstrating that there is no genuine issue of fact and therefore judgment on a matter of law is justified. 56(c).

56(a): a motion for SJ may be made at any time after 20 days have passed from commencement of the action or the opposing party serves a motion of SJ.

The Nature of the SJ Device: The Concept of Burden Shifting

An introduction to the concept of burden shiftingo The SJ device is concerned exclusively with the burden of production

As opposed to the concept of the burden of persuasiono While the concept of burden of persuasion is designed to guide the fact

finder (often the jury), the burden of production concept serves as a means of controlling the jury: unless the party upon whom that burden has been placed presents sufficient evidence to justify a verdict in his favor, the judge will take the case out of the hands of the jury by granting a directed verdict, because a jury verdict in that party’s favor would be irrational.

Both the burden of production and the burden of persuasion are with the D at the beginning of an action

After the filing of a complaint by P, neither burden shifts When do the burdens shift from P?

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o Persuasion…if D brings forth an affirmative defense i.e. statute of limitations

o Production If lots of evidence is produced and in terms of persuasiveness we break

the 50% mark, then at that particular point we say that the burden of production has shifted to D

It shifts back if D can shift back the evidence to the point at which a jury trial is to be held

If the non-movant/D cannot shift back the evidence to the point at which a jury trial is to be held, then a decision will come for Ps as a matter of law

If D has enough evidence to shift all the way back to the P, then the burden is put back on P

If at some point the party with the burden of production meets but does not shift the burden, this means that the court has concluded that a fact finder could reasonably find for either party…trial ensues

SJ and JMOL Contrasted

Like a motion for SJ, a motion for judgment as a matter of law (previously referred to as “directed verdict” and “judgment n.o.v.”) seeks to establish that the non-movant has failed to meet his burden of production. It has been suggested that because SJ comes at a relatively early stage in the litigation, courts should be more reluctant to grant SJ than a directed verdict. However, the SC has held that the standard of proof to be applied is identical in both motions.

o Both motions ask the same basic question…whether or not the non-moving party has met its burden of production

If not, then there is not a general dispute about facts under either scenarios

Thus, you can be subject to SJ and JMOL Differences

o SJ occurs pre-trial; JMOL occurs during trialo What the movant must show?

SJ…movant must show some affirmative representation The absence of a dispute over a material issue of fact

JMOL…you do not have to show anything All you have to show is that you are filling your motion

o Thus, the showing is different SJ…show something JMOL…don’t not have show anything

Why would you waste judicial resources if the P will not have a meritorious cause of action?

o SJ…efficiency trumps fairness concerns Ps usually want to push on to trial

o Who knows what could happen o greater chance of settlement

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who knows what could happen with the jury The B of PROD works as a bar to P’s access to the jury

o A put up or shut up kind of motion SJ also can work as a discovery device

o The other side gets a peek at your caseo Contradicts work product rule

The movant’s burden in SJ

Three basic approaches to the question of what burden a movant for SJ should bearo (1) Under the approach employed by Adickes, in order to require a nonmovant

to respond, a movant must establish the truth of his position, whether or not she would have the burden of production at trial

Negate everything…maximalist approacho (2) under Professor Louis’s approach, the movant would have only to meet a

burden of production, or to demonstrate – through discovery – the absence of proof of an essential element of the nonmovant’s case

movant can satisfy his burden by attacking his opponent’s evidence A motion for SJ should require the movant to produce enough

evidence so that a jury can find in their favor…intermediate approach

You have to make a sort mini-case for yourself to win Don’t have to negate everything, but you have to do more

than put up or shut upo (3) Professor Currie, in contrast, would treat SJ as a matter of law at trial

pursuant to 50, imposing no burden of production on a movant who would not bear the burden of production of trial, in order to require the nonmovant to come forward with her supporting evidence

Nothing more than movement for SJ…minimalist approach not, however, that under all three approaches, a movant for SJ who would bear the

burden of production at trial must shift the burden before the nonmovants will be required to respond

Celotex Court holds that maximalist standard adopted in Adickes is wrongo They adopt something similar to the minimalist approach

We should be less concerned with granting motions for a SJ However, the approach becomes more minimalist as the record

becomes more scant Movant should be informing the court

o Pointing to the record, etc. What do have to show?

o Non-movant cannot carry their burden of production at trialo Don’t have to show much of anything…there is uncertainty as to what you

have to show Sounds a bit like the minimalist approach

When the motion for SJ is premature

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o 56(f) delays resolution of the motion for SJ pending adequate discovery (judge can also dismiss under this)

under 56(f), you do not necessarily get discovery automatically 56(f) discovery must be related to the issue or set of issues set out for

discovery 56(f) requires P to provide an explanation why discovery on this issue

will be useful/constructive in essence, P has to lay out his hand in toto and say if only I had

info on these following pieces then I would be able to contest SJ more effectively

but opposition gets a peek at your case, and this 56(f) isn’t much of a consolation

what you do in your initial disclosure might actually impact the opposing party’s ability to move for SJ

What would disable the D to file frivolous motions for SJ?o Rule 11

Lawyers must sign and certify that they provided that requisite factual and legal inquiry to justifying filing any motion

Presumably you’ve done enough discovery to justify filing SJ Responding to SJ

o 37(c): in a response to SJ you cannot rely on material that has yet to be disclosed

Celotex: moving party is entitled to SJ simply by asserting that P has not satisfied an element of his or her case

o What must P do in order to resist a motion for SJ? Whatever evidence you are using will ultimately point you in the

direction of sufficient admissible evidence that will create a triable issue

o This Court says motion for SJ in Adickes should have been denied anyway because there was some evidence of a conspiracy that may lead to more evidence creating a material issue for triable fact

Once the moving party has attacked whatever record evidence – if any – the nonmoving party purports to rely upon, the burden of production shifts to the nonmoving party, who must either (1) rehabilitate the evidence attacked in he moving party’s papers, (2) produce additional evidence showing that existence of a genuine issue for trial as provided in 56(e), or (3) submit and affidavit explaining why further discovery is necessary as provided in 56(f).

Courts may grant SJ sua sponte. However, while it is permissible to do so in district courts, it is a hazardous procedure which warrants special caution.

56(c): if the moving party makes the required showing that it is entitled to summary judgment, judgment “should” be granted.

o Judge has discretion to grant SJ if there is no matter of fact at issue, but judge cannot grant SJ if there is a matter of fact at issue

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MEETING THE BURDEN OF PRODUCTION: DETERMING THE APPROPRIATE STANDARD [109-

Here we are assuming that the movant has done what they had to do in order to file the motion for SJ

o This is about the non-party resisting the motion for SJ The slightest doubt approach

o Nonmoving party only has to produce the slightest amount of doubt to overcome a motion for SJ

Rationale: P should not be deprived access to benefits afforded by the

irrationality of the juryo There exists a general lack of approval for summary judgment

Dyer approacho If there is no reasonable basis that witness will have a case at trial, then

there is no point in going to trial. More than sheer speculation

o Dyer v. Porter Dyer signals flexibility in SJ, much like Celotex You need something more than just a sliver of evidence to meet your

burden as a non-movant challenging a motion for SJ State of mind cases

o How can you rebut that a D had a particular state of mind when the D submits an affidavit with his motion for SJ that he didn’t have the state of mind required?

o We do not infer the requisite state of mindo So in effect you would have to argue disbelief evidence, but that is sheer

speculation and will not fly…so what do you do? You have to look to the record, facts, circumstances, etc. in hopes that

you can construct an inference for bad intent that holds up against SJ You have to construct an inference based on facts and

circumstanceso Here, D has a structural advantage with regards to SJ in cases of

employment, civil rights, defamation (state of mind cases) Purpose of SJ is whether non-movant can meet its burden of production

o If there is no question of fact we can save on judicial resources by foregoing a trial

How do you show the genuine absence of a dispute of material fact?o You do it when you file your motion…you attach a document in which you

explain the basis of the motion and the facts or the particular cases, and the facts that are not disputed by the other side

If these facts are true, then I win Celotex…you have to show something

o If you the non-movant, then your job is to file an opposition brief with geunine areas of factual dispute

It could be one critical fact

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And if you agree with the facts as the non-movant perceives them (obviously in his favor to win the case) he can win on this filing of a cross-motion for SJ

At least, at a minimum, the non-movant is striving to show enough of a disparity in perceived facts as require a trial

Compare 12(6)…on the pleadingso With 56…pre-trialo Sometimes filed togethero Are the standards different/the same?

Typically after a denial for SJo Judge commences the formal proceedings for trial

Rule 16…Pre-trial conferenceo Judge may determine what evidence is admissibleo Judge may send the case to mediation

7th Amendment…right to a jury trial may be preservedo judges hear most cases, but sometimes we see jurieso as P or D, you can assert your preference

typically, it’s the P who wants the jury and the D who doesn’t Juries

o Not 12, usually 6o Pool of people whose names drawn from voter registration, etc.

jury selection o Tend to require unanimous verdicts

MOTIONS FOR JUDGMENTS AS A MATTER OF LAW [112-118]

Once PARTIES complete their case in chief, D will move for JMOLo If you file JMOL after the D’s case then it is a JNOVo Same device under 50, just a question of timing

Motion for JMOL can be made any time before the case is submitted to the jury NOTE: standard seems lower for SJ than for JMOL

FRCP 50 JMOL enables the court to determine whether there is any question of fact to be

submitted to the jury and whether any finding other than the one requested would be erroneous as a matter of law

May be made by either party at the close of their opponent’s evidence For the motion to be granted the court must find that there is insufficient evidence to

go to the jury or that the evidence is compelling that only one result could follow JMOL acts as a delayed SJ, in that it determines that there are no genuine issues

of fact for the juryo It is essentially the same analysis concerning the meeting and shifting of

burdens

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In analyzing the scope of the motion for JMOL, two distinct issues must be considered: (1) whether the motion is consistent with constitutional dictates concerning the role of the jury, and (2) the method for determining whether there exists sufficient evidence for a “reasonable” jury to find for a particular party.

P does not have an absolute right to a jury trial, but rather the institution of the jury is preserved for those cases that make it to that stage of litigation

o Improbable things go to the jury, impossible things do not Burden of production

o Comes close to the scintilla rule is all you have to do is ask if P’s theory is impossible

o But we ask for more than that We ask for some substantial evidence…its not the scintilla rule

What do we do when both possibilities are equally unlikely, and the burden of production has been met by both sides?

o It goes to the jury and we give them the opportunity to decide Cases are sent to a jury only when reasonable people can differ over

the outcome It is assumed that twelve men know more of the common affair of life

than does one man, that they can draw wiser and safer conclusions from admitted facts thus occurring than can a single judge

o As long as both theories are supported by substantial evidence, then the court should not care about the outcome

Most courts will say that all evidence will be considered in light of the most favorable interpretation to the party being attacked

o Does light most favorable mean disbelieving a witness?o The court must make determination whether it would be reasonable for a jury

to disbelieve or take into account evidence from witness being considered Lavendar

o Only when there is a complete absence of probative facts to support the conclusion reached does a reversible error appear.

But where, as here, there is an evidentiary basis for the jury’s verdict, the jury is free to discard or disbelieve whatever acts are inconsistent with its conclusion. And the appellate court’s function is exhausted when that evidentiary basis becomes apparent, it being immaterial that the court might draw contrary inference or feel that another conclusion is more reasonable.

juries are good with dealing with testimony, but not with probabilistic evidenceo the tendency is to rule for a directed verdict when the jury would be faced

with these two competing narrativeso however, if the judge thinks the jury can handling this weighing of

evidence, it may send the case to a jury

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MOTIONS FOR A NEW TRIAL [118-121]

FRCP 59

“clear weight of evidence” standardo A judge can displace a jury verdict only when the jury’s verdict is against

“the clear weight of the evidence” or based upon evidence which is false or will result in “the miscarriage of justice” …judge cannot displace a jury’s verdict because he disagrees with it or would have found otherwise in a bench trial

The IA court simply weighs whether the district court committed a clear abuse of its discretion in determining that the jury verdict was not against the clear weight of the evidence

o “clear abuse of discretion” standard These standards are not all that different

o The basic idea is that the reviewing court is giving deference to the trial court, and the trial court is giving deference to the jury findings

There is extra-special deference given to the jury findingso Appellate court will not remove trial court verdict so easily because trial

court is in a better position to make a judgment

The intersection between JMOL and motion for a new trial The intersection between JMOL and motion for new trial

o 50(b) provides that a party who lost at trial may renew its motion for JMOL and “may include an alternative or joint request for a new trial under 59.”

JMOL after the verdict Why file them together?

The standards for granting a 50 and 59 motions are differento 50…no rational finder of fact could have been found

for the non-movanto 59…when verdict entered against the movant is against

the clear weight of the evidence the decision may very well be against the clear weight of the

evidence, but nonetheless rational…this is why you want to file both at the same time

o you would not be entitled to a directed verdict, but you may be entitled to a new trial because the standard is slightly lower

o 50(c)(1) provides that “if the court grants a renewed motion from JMOL, it must also conditionally rule on any motion for a new trial by determining whether a new trial should be granted if the judgment is later vacated or reversed.”

In doing so, “the court must state the grounds for conditionally granting or denying the motion for new trial.”

If there is a motion for a new trial that has been filed, the court should rule on that at the same time, in case the court gets reversed with

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regards to the directed verdict, the remedy consisting of a new trial is already set

o 50(c)(2)…when a conditional new trial motion is granted by the trial court and the judgment granting JMOL has been reversed on appeal, “the new trial motion is granted by the trial court unless the appellate court orders otherwise.”

But if the motion for new trial has been conditionally denied by the trial court, the party making that conditional motion (i.e. the party who lost at trial but won on its post-trial motion for JMOL) may on appeal assert the conditional denial of its new trial motion as error. “If the judgment is reversed, the case must proceed as the appellate court orders.”

o 50(e)…if the trial court denies the motion for JMOL, “the prevailing party [i.e. the party who won both at trial and on the loser’s motion for JMOL after trial] may, as appellee, assert grounds entitling it to a new trial should the appellate court conclude that the trial court error in denying the motion. If the appellate court reverses the judgment, it may order a new trial, direct the trial court to determine whether new trial should be granted, or direct the entry of judgment.

o A court may deny a JMOL but still grant an new trial when it does not believe that the nonmovant’s evidence is so deficient that it was unreasonable for the jury to find for that party, but the court is nevertheless firmly convinced that a verdict on behalf of the non-movant is against the clear weight of the evidence. In other words, because the standard for granting a new trial on the grounds that the verdict is against the clear weight of the evidence is less deferential to the jury than is the standard employed on a motion for JMOL, it is conceivable that the court would conclude the non-movant’s evidence failed to satisfy the former standard, even though it did satisfy the latter standard. Also, a trial court under 50(b), despite denying the motion for JMOL, because it believes it committed an error at trial – for example, in improperly refusing to admit some of the non-movant’s evidence.

o 50(c)(1) concerns the situations in which the trial court has granted the renewed motion from JMOL under 50(b).

at the trial level, the ruling on the alternative new trial motion is hypothetical, because the court’s granting of the motion for JMOL has the effect of mooting, at least for immediate purposes, the merits of the new trial motion.

The rule requires the hypothetical ruling, however, to take the possibility that the trial court’s grant of the motion for JMOL will ultimately be reversed on appeal. 50(c)(1) provides that in such an event, if the trial court has conditionally granted the new motion, the new trial proceeds unless otherwise ordered by the appellate court. If, on the other hand, the trial court denied the alternative new trial motion, the appellee on appeal may assert that ruling as error.

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o 50(e) concerns the situations in which the trial court has denied the motion for JMOL. The provision allows the appellee – i.e., the party who both won at trial and defeated the motion for JMOL in the trial court – to argue that in the event the trial court’s denial of JMOL is reversed he should nevertheless be granted a new trial.

o 50(e) requires appellate courts to remand to trial courts to rule on requests for new trials

Relief from judgment under 60(b) A motion for new trial under 59 must be made “no later than 28 days after the entry

of the judgment.” 59(b). However, 60(b) provides a mechanism by which a party may obtain relief from a judgment at a later time. Note that it only applies to final judgment; the court usually may reconsider any earlier decision before final judgment.

o 60 attempts to reconcile to value of finality and the doing of justice relief under 60 is exceedingly rare

o our judicial system is premised on finality Provisions:

o 60(b)(1) allows a party to ask that judgment be set aside on grounds of “mistake, inadvertence, surprise, or excusable neglect.”

Bad lawyering will usually not serve as a basiso 60(b)(2) authorizes setting aside a judgment where the loser presents newly

discovered evidence same standard as a 59 motion for a new trial on grounds of newly

discovered evidence consider that the rule indicates that the proffered material be evidence,

be newly discovered, and not have been discoverable in time with due diligence

was discoverable the whole time, but just became discoverable to you

evidence must be admissible you must be able to explain to the court why it was not

discoverable by you beforehando 60(b)(3) provides that fraud or other misconduct of a party is a ground for

setting aside a final judgment or ordero other reasons

60(b)(6) provides that a party may be relieved from a final judgment for “any other reason that justifies relief.”

Note that one-year time limit in 60(b) applies only to reasons (1), (2), and (3).

With 60(b)(6), P can avoid the time bars only upon a showing that (1) the reason for relief sought under 60(b)(6) is not embraced within the various provisions 60(b)(1-5) and (2) exceptional circumstances exist which warrant the granting of relief.

Courts are exceptionally cautious in invoking 60(b)(6)

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REMITTITUR AND ADDITUR [121-123]

Remittitur…judge gives winning party option to decrease damages or begin a new trial

Additur…judge orders the increase of damages

Validityo The validity of remittitur in federal practice is today firmly established. The

additur, however, has been found by the US SC to be in violation of the Seventh Amendment, and is therefore not allowed in federal trials (The Seventh Amendment has not been applied to state trials). Dimick.

Once a court decides that a remittitur is appropriate because the jury’s award of damages is excessive, it must decide the amount of damages to be reduced. There are three basic methods for determining this amount: by reducing the award to (1) the minimum amount the jury might have awarded, (2) the amount the court itself believes should have been awarded, and (3) the maximum amount that a reasonable jury could have awarded.

o A maximum recovery strategy would be ideal if you trying to get a P to accept remittitur

However, it is typically the D’s rights that are at stake in the remittitur context

o A minimum recovery strategy will make the Ds happy P’s will not be happy here because they want a new trial

o Maybe the best strategy is to offer a reasonable figure…maybe not Where would they get this figure? They’d have to sift through the facts of the cases and make their own

judgments (not a good thing) o In lieu of judges wanting to practice A/R, they put pressure on the parties

to settle on a number that they think is reasonable You do not have to worry about additur. Partial new trial: another new trial possibility is that the trial court may conclude

that a new trial is appropriate only as to certain issues, such as the amount of damages

ERIE DOCTRINE

CHOOSING BETWEEN FEDERAL AND STATE LAW [123-141]

First threshold question…is the case at hand a diversity case?o if no…do not apply Erie

Swift Federal courts must follow state law when there is a statutes (legislation)… i.e.

procedure General/CL

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o In the absence of some valid state statute or local custom, the general issue can be decided by the federal courts under general jurisprudential issues

Federal courts are not bound to apply state common law decisions The idea behind this movement was to create a uniform body of federal common

lawo Serious problem: the federal jurisdictions would defer to the state law

(from their jurisdiction) anyway…thus, producing a fractured federal law rather than the sought after uniform body of federal law

Erie There is no federal common law Federal courts must apply substantive rules of state common law and can apply

federal procedural law

York Outcome-determinative test

o Federal courts must apply state rules if applying federal ones would substantially affect the outcome of the action

A case in a federal court a block away from a state court should not be decided differently

Relation to Erieo York’s outcome-determinative test ensures the conformity asserted by

Erieo “The operation of a double system of conflicting laws in the same State is

plainly hostile to reign of law” There is also measures of fairness at hand here because it would be wrong for Ps to

be able to circumvent state law by filing in federal court (assuming they can establish DJ)

Accuracy…state courts see this issues more often, so they assumedly be more accurate then federal courts

When is something outcome-determinative (when is something procedural v. substantive)?

o Some rules appear small (or merely procedural), but may provide reason to change courtrooms (i.e. state to federal, or vice versa) in order to obtain their benefits

Substantive law is buried inside of procedure…we are running into all sorts of trouble under Erie

Byrd Effect of Byrd

o the overall importance of Byrd is that it showed that state decisions that are basically procedural (through they may, of course, affect substantive rights) are not necessarily controlling even if they are outcome-determinative. The federal interest in the proper maintenance of the federal judiciary has to be given some respect, and controls if the federal policy is significantly stronger than the state policy. The test seems to be one of rough “balancing.”

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o Byrd reformulates Erie again Erie…substantive law is state, procedural law is federal York…outcome-determinative test In Erie and York, interest of litigants was the concern…while in Byrd

the balancing test seems a bit more concerned with the operation of the federal system

o Upside to balancing test Let’s you look at more factors

o Problems with balancing test There is no objective measure to the balancing test You still have to decide how much weight you’re going to give

We have to weigh state interest demanding uniformity between state and federal courts and the federal interest in maintaining federal practice

Hanna “Thus, though a court, in measuring the Federal Rule against the standards

contained in the Enabling Act and the CON, need not wholly blind itself to the degree to which the Rule makes the character and the result of the federal litigation stray from the course it would follow in state courts, it cannot be forgotten that the Erie rule, and the guidelines suggested in York, were created to serve another purpose altogether. To hold that a FRCP must cease to function whenever it alters the mode of enforcing state-created rights would be to disembowel either the CON’s grant of power over federal procedure or Congress’s attempt to exercise that power in the Enabling Act.”

o The outcome-determination test … cannot be read without reference to the twin aims of the Erie rule: discouragement of forum shopping and avoidance of inequitable administration of laws.”

This two policies are the only relevant policies in applying the Erie doctrineo Abandonment of the Byrd balancing test in favor of the twin policies

What does this recalibration do?o Focuses on twin aims not balancing testo It is no longer about mimicking everything the state court does, only when

there is a substantial departure So, when there is a substantial departure, then Erie kicks in Where a fed rule (not practice) of procedure is in conflict with

state practice, a fed rule would trump

Burlington Northern RR Co. Applies Hanna Substantial departure….fed rule trumps

Walker Since there is no direct conflict between the FR and the state law, the Hanna

analysis does not apply, Instead, the policies behind Erie and Ragan control the issue whether, in the absence of a federal rule directly on point, state service

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requirements which are an integral part of he SOL should control in an action based on state law which is filed in federal court under diversity jurisdiction.

o Walker tells us to interpret FR so as to prevent conflict with state practices…when there is a direct conflict

The court may interpret the rule more narrowly so as to avoid conflict

Gaspirini The Court holds that the federal standard under 59 (“shocking the conscience”)

is not an essential part of federal practiceo As in Walker, the Court recognizes that NY state law interest in achieving

tort reform Not a primary focus under Hanna, but maybe Byrd But regardless, the Court is sensitive to state policies

The Court concludes that the difference between the NY standard and fed standard would prompt Ps to forum shop and use fed courts to achieve their aims

We are we now in the Erie doctrine Concern for twin aims Construe to avoid conflict with state laws

o Walker Concern for state policies

o Gaspirini THIS IS KEY: Federal courts will attempt to conform to state protocol

whenever possible in order to meet the twin aims of Erie unless an essential characteristic of the federal judicial system presenting a counterveiling federal interest is involved.

o Summing up where we are in Erie doctrine

DETERMINING STATE LAW [141-143]

Certification a process where a federal court can have a state supreme court resolve issues

that it has with regards to where they plan to go with their state law it seems unfair that federal court can get states to do work for them, but state courts

cannot ask the US SC cannot define federal law for themo actually, it is not at all problematic because it is simply the nature of the

federalist system on the other side, you can appeal a federal law issue all the way

through the state courts to the US SC there is no similar process available for reviewing state law

issues in federal court, thus certification

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THE “CONVERSE ERIE” PROBLEM [143-144]

-Erie problem…federal procedural law and state substantive law applied in federal court Federal CL in state courts

o Federal jurisdiction with respect to most federal question claims is concurrent with state jurisdiction. If concurrent jurisdiction exists with respect to particular claim, and the suit is brought in state court, federal common law applies there if it would apply in federal court.

o Binding state court Thus, a state court would be compelled to apply earlier federal

precedents, and to ignore state decisions, just as a federal court would.o Procedural questions

The application of fed CL to state court suits on federally-created rights may even extend to certain “procedural matters”

Example…Dice the basic idea is that where Congress has delegated a specific cause of action,

they must have delegated the federal court to fill in the gapso so, in essence, the Court acknowledges a federal common lawo you must achieve the same procedure for the same claim, regardless of the

forum, so as to prevent forum shoppingo the application of the federal procedure in state court with regards to a

federal claim occurs when the application of state procedure would affect the outcome with regards to the fed substantive right

apply the Erie ideas to this situation

NICE ERIE CHART ON PAGE 245 IN EMANUEL’S

APPEALS

the systematic value of appeals is often subject to contestation

TIMELY NOTICE OF APPEAL [144-146]

Bowles D filed his notice for appeal on the 16th day The jurisdiction of fed appellate courts depends on the notice of appeals in a timely

fashiono Although you are appealing, you file with the district court

The idea is that Congress made the 14 day extension a jurisdictional requiremento Petitioner relied on the 17 day extension provided by the courto Court held that because it was a jurisdictional rule there was no

exception Mandatory rule

o Like affirmative defenseso Apply when they are raised by a party

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o Can take a case out of court or they can be waived by an agreement Jurisdictional rule

o Cannot be waived The Court places a great deal of emphasis on the fact that the time limit is

established by statute in determining that the applicable rule is a jurisdictional rule

o The unique circumstances doctrine does not apply when the rule is a jurisdictional rule

o The Court cannot do anything about the inequity here The dissent asserts that there is no reason to conclude that this

rule is necessarily jurisdictional Issue of fairness because all the petitioner did was what the

judge said This is because presumably Congress does not always strive to

create jurisdictional bars when creating statute The statute in question seems to read as a statute of

limitations, which would make it a mandatory rule, and thus the court could in fact tinker with it

Majority wins:o Time limits with regards to timely notices of appeal are jurisdictional

rules

THE FINAL JUDGMENT RULE AND EXCEPTIONS [146-151]

Under 28 USCA § 1291, the federal courts of appeals have jurisdiction over “appeals from all final decisions” of he district courts.

o This limitation of appeals to final decisions reflects a long-held policy of requiring that the appeal of any issues in a case be reserved until there is a final decision in the lower court.

o In addition, the final judgment rule is said to “preserved the primacy of the district court as the arbiter of the proceedings before it.”

final decision…a judgment that ends the litigation on the merits and leaves nothing for the court to do but execute the judgment. Caitlin, US SC.

o you only get to appeal issues that are finalo however, in certain situations the test of finality is not so easily applied

in these cases on the margins, are courts interpreting the final judgment rule or are they creating exceptions to it?

Quakenbush The Court held that remand orders like the one entered in this case do not meet

the traditional definition of finality – they do not end the litigation on the merits and leave nothing for the court to do but execute judgment

o However, the Court rules that if the order effectively creates a final judgment, then an appeal will be allowed even though an official termination does not occur

this is an exemplification of the SC’s pragmatic approach to finality

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more reasonable, flexible rather than formalistic The Court does not want to put litigants “effectively out of court”

o Here, the remand would not have ended the case, but the issue would no longer be appealable in fed court because you are no longer in the federal system

There are going to be certain orders that are not technically final, but are ultimately unreviewable

Take away from Quackenbush:o Final judgment rule is important, but finality will be interpreted pragmatically

In most instances, the Court will take a fairly conservative approacho However, there are other exceptions…listed below

Collateral order doctrine (Cohen, et al.)

The Collateral Order Exception to the Final Judgment Rule

the collateral order exception involves a final disposition of a claim right, presumably one that is too important to deny review that is not an ingredient in a cause of action (not merits based) and thus would prove separable from other issues

o issue is considered at the appellate level before the whole case is adjudicated The requirements for collateral order appeal:

o (1) conclusively determine the disputed question…conclusiveness reviewing court is capable of distinguishing tentative rulings and the

final word on an issueo (2) resolve an important issue completely separate from the merits of the

action, and…separability o (3) be effectively unreviewable on appeal from a final judgment…

unreviewability Take away: court is reluctant to expand the collateral order exception

o the conditions are stringent, and unless they are kept so, the underlying doctrine will overpower the substantial finality interests § 1291 is meant to further: judicial efficiency, for example, and the “sensible policy of avoiding the obstruction to just claims that would come from permitting the harassment and cost of a succession of separate appeals from the various rulings to which a litigation may give rise

o the collateral order doctrine is applied to a very narrow class

Carson For an interlocutory order to be immediately appealable under 1292(a)(1),

however, a litigant must show more than that the order has the practical effect of refusing an injunction.

o Because 1292(a)(1) was intended to carve out only a limited exception to the final-judgment rule, we have construed the statute narrowly to ensure that appeal as of right under 1292(a)(1) will be available only in circumstances where an appeal will further the statutory purpose of “permitting litigants to

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effectually challenge interlocutory orders of serious, perhaps irreparable, consequences.”

In sum, the Court held here that in refusing to approve the parties’ negotiated consent decree, the District Court denied petitioners the opportunity to compromise their claims and to obtain the injunctive benefits of the settlement agreements they negotiated. These constitute “serious, perhaps irreparable, consequences” that petitioners can “effectually challenge” only be an immediate appeal. It follows that the order is an “refusing” an “injunction” and is therefore appealable under 1292(a)(1).

requirements for application of interlocutory injunction exception: o (1) injunction, or something similaro (2) serious, perhaps irreparable consequences

Here, the court’s holding should be read as applying the interlocutory injunction exception to preliminary injunctions

Because you can review permanent injunctions, there will generally be no stretch of the interlocutory injunction exception in these situations

Because there is another avenue of getting review for a temporary restraining order, there will generally be no stretch of the interlocutory injunction exception in these situations

DISCRETIONARY FORMS OF APPEAL [151-155]

Discretionary review and the role of the district court-Sometimes a litigant will ask a court to file an order facilitating an appeal -If the possibility of being wrong is sizeable and the litigation hinges on this issue, it makes sense to defer to the appeals court before you proceed any further If there is a controversial question, the DC (district court) will help you as a litigant to

get your issue in front of an appeals court. Even if the DC continues to hold onto other parts of the case, without deciding them.

o Should a DC be given this power/discretion to expedite appeals? It may be efficient on some level Also, trial judge is in a good position to make this call

Or are they?o Most trial judges hate being reversed on appealo Trial judges may be generally unhelpful in facilitating a

case for appeal Maybe discretion should reside in the appellate judge

Options for getting appellate review on a particular portion of a case:o (1) do the whole trial

could be wasteo (2) dismissal without prejudice

leaves no pending claims might do the trick, but might not produce the same kind of finality that

is needed because you can re-fileo (3) 54(b)

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basically the DC puts in a final judgment on this part of the ruling and we want to proceed with the remainder, but we think that there are good reasons for the appellate review of this piece

the appellate courts want the DCs to be really serious about thiso (4) Interlocutory appeal

both the DC and IA court must agree/certify two requirements:

that immediate review of the order “materially advance” the litigation’s termination and that the order involve a “controlling issue of law.” 28 USC § 1292(b)

Take away:o In addition to appeals as of right, you have discretionary reviewo Two important forms:

Trial court can manufacture a final ruling for you Trial court can certify it by using the statute regarding

interlocutory appeal

Discretionary review by writ of mandamus Mandamus was not designed to control the decision of the trial court, but merely

to confine the lower court to the sphere of its discretionary power. The record simply failed to demonstrate the necessity for the drastic remedy employed by the appeals court.

Mandamus is an extraordinary powero Because mandamus is so rare, its hard to tell what criteria will get the

granto Criteria (factors):

(1) party seeking the writ has no other adequate means for relief (i.e. on appeals)

(2) petitioner will be damaged or prejudiced with no possibility for correction on appeal

(3) DC is clearly erroneous of a matter of law (4) Often repeated error evidencing a problem in the DC (5) DC raises new or important problems and issues with first

impression limited discretionary review afforded the SC…

o Relevant criteria for certiorari: (1) Circuit splits (2) issues related to federalism concerns (3) issues or cases of tremendous legal significance

Mandamus is traditionally employed as a means of protecting a right to jury trial claimed to have been improperly denied in the district court.

Remember: we still want to discourage piecemeal litigation

APPEALLATE REVIEW OF JUDICIAL FINDINGS OF FACT [155-156]

-question of fact… “clearly erroneous” standard

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What does “clearly erroneous” under 52 mean?o Deferential, albeit slightly less deferential as the unreasonableness

standard regarding a jury’s JMOL Should our deference be the same when dealing with a judge’s finding of facts

as opposed to a jury’s finding of facts?o We may want to insulate the jury because of the sanctity we afford it

What about the scope of review for legal conclusions and findings of fact?o We give greater deference to findings of fact because the trial court

has unique access to the facts at hand As opposed to the more general nature of the law…where we

give no deference-question of law…de novo standard

The de novo standard provides NO DEFERENCE-mixed questions of law and fact…de novo standard

The only way to get out from under 52 is to construe something other than simply a question of fact

o Thus allowing the court to apply the de novo standard

PRECLUSIVE EFFECTS OF JUDGMENT

Putting an end to litigation by according finality to judgments is a central objective of a modern system of civil procedure

Res Judicata and Collateral Estoppelo Res judicata…the prohibition on relitigating a claim that has already

been litigated and gone to judgmento Collateral estoppel (or issue preclusion) is a doctrine applicable in

situations that are not covered by res judicata because the second action is not based on the same claim or cause of action

It forecloses the relitigation of issues that were actually litigated (that is, contested by the parties and submitted from determination by the court) and that were necessarily decided by the court.

Main policy concerns are finality and judicial econonmy

CLAIM PRECLUSION (RES JUDICATA) [158-172]

Under the doctrine of res judicata, “a final judgment on the merits of the action precludes the parties or their privies from relitigating issues that were or could have been raised in that action.”

o Exceptions to claim-splitting in the Restatement – “where formal barriers existed against full presentation of claim in the first action or where the D has committed fraud on the P by concealing evidence of a part or phase of claim that the P failed to include in an earlier action.”

Tests for res judicatao (1) Traditional view

Only the actual claim or cause of action is precluded Concerns rights and duties

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o (2) Same evidence standardo (3) MODERN APPROACH…transactional analysis

what factual grouping constitutes a “transaction,” and what groupings constitute a “series,” are to be determined pragmatically, giving weight to such considerations as whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as unit conforms to the parties’ expectations or business understandings or usage

ultimately, we do not know what “transactional analysis” means Virtues of claim preclusion

o Judicial economyo Harassmento Claim preclusion also incentivizes Ps to join together all their claims in

one lawsuito Claim preclusion may be useful in preventing inconsistent outcomes

Ultimately, most people find claim preclusion to be fair, but sometimes it may not prove unjust for Ps

Other Action Pending

A party subjected to repetitive suits need not wait until one goes to judgment and then raise it as a bar to prosecution of the other; the simultaneous defense of multiple suits is itself an onerous burden. It is possible instead to raise the defense of “other action pending,” thus seeking a dismissal if there is another action on the same cause of action pending in the same state or federal district court.

Application of Res Judicata to Defendants

The policies underlying res judicata apply to the responses of a D to a lawsuit, but in a distinctive way. There is little problem with defenses: if a D fails to raise defenses available to it, it cannot as a general rule thereafter use them to attack the judgment.

The treatment of counterclaims is more involved. When a D actually raises a counterclaim, all aspects of it are subject to the rule of claim preclusion. The only exception is the rare case when the D cannot obtain full recovery on his counterclaim (as in a court of limited jurisdiction from which the D could not remove the case).

o Consider compulsory counterclaims Principles of res judicata go against the allowance of compulsory

counterclaims conflicting with past decisions; whereas, principles of judicial economy support the allowance of compulsory counterclaims conflicting with past decisions

Exceptions to the rule against spitting a cause of action

Res judicata is often referred to as a rule for enforcing the prohibition against “splitting a cause of action,” that is, not suing on all the theories arising out of

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the matter being litigated and then attempting to raise them in a second suit. The prohibition against splitting a cause of action reflects not only the desirability of finality in litigation but also concern for the efficient use of judicial resources.

o There may be occasion in which there are policy reasons for withholding some aspect of the claim for future litigation, or in which, due to procedural and substantive limitations, a party may be involuntarily forced to split his cause of action, or in which application of a strict rule against splitting a cause of action results in unfairness. Should there be exceptions for such situations? Consider the following case.

Moitieo There will not be a fairness objection to res judicata

Except when the first judgment is fraudulently obtained We wouldn’t want to person asserting res judicata to become a

windfall beneficiaryo There is also no exception when it comes to absurd decisionso There may also be an exception where a claim could be relitigated in a

court where the claim was originally dismissed for a lack of jurisdiction in that court

On the Merits

The traditional requirements of res judicata that the first judgment have been “on the merits” has gradually undergone change until today those words cannot be taken literally. The term once meant what it said. Judgments on the merits (for example after a trial or a motion for SJ) were accorded res judicata effect, but judgments on non-merits grounds (such as dismissal for lack of jurisdiction or failure to join an indispensable party) were not.

However, today the policies favoring requiring Ps to plead all their claims, and thus not to take up judicial time with repetitive suits, have won out, and many courts and the Restatement (Second) of Judgments apply res judicata to a dismissal for a failure to state a claim [12(b)(6)].

o Today, 12(b)(6) motions for dismissals are considered to be on the merits 41(b) basically says unless the dismissal states otherwise or it is not an exception

-- dismissal for lack of jurisdiction, for improper venue, or for nonjoinder or misjoinder of parties -- the dismissal must be considered as a judgment on the merits

also, dismissal of a case for failure to comply with discovery sanctions is considered to be a final judgment on the merits

o this kind of dismissal needs to have some preclusive effect in order for it to work properly

A dismissal on 12(b)(6) grounds has preclusive effects and a dismissal for personal jurisdiction does not because res judicata is designed to incentivize parties to bring all of their claims when possible so as to maintain fairness, finality, and judicial economy

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Preclusion in state-federal court adjudications

Marrese Suits in two different jurisdictions

o Where Suit 1 and Suit 2 are in two different jurisdictions, the court hearing Suit 2 must normally apply not its own rules of claim preclusion, but those of the court that heard Suit 1.

o State suit followed by federal suit This is true not only where Suit 1 and Suit 2 are in two different states

but also where Suit 1 is in state court and Suit 2 is in federal court, and vice versa. The rule that it is the first court’s claim preclusion rules which apply is a corollary to the more general requirement that each court must render “Full Faith and Credit” to the judgments of other jurisdictions.

SC looks to the Full Faith and Credit Statute for guidanceo Fed courts should be respecting the judgments of state courtso a federal court must look to state law to determine the scope of preclusion

this is not easy to achieve because fed court would have to look the state CL

the problem is when the preclusion issue is raised, it is raised in fed court

at state court will not have occasion to address this specific question because it only arises in fed court

so the fed courts look to the Restatement of Judgmentso take away: the fed courts have no discretion…the fed court must look to

state preclusion law to decipher the next course of action, and when there is nothing present on this issue in state common or statutory law (which happens because there is no opportunity for them to address this issue), the fed court is to look to the Restatement of Judgments

Semtek State suit follows federal suit

o Suppose now that the federal suit comes first, and the state suit second. As the result of an important 2001 decision, the rule is that where the first decision is by a fed court sitting in diversity, the state court in the second suit must give to the earlier fed judgment the same preclusive effect as such a judgment would have been given by the courts of the state where the first (fed) court sat.

For instance, if the first judgment is by a CA fed district court and the second suit is in MD state court, the MD Court must give to the first judgment the same effect as that judgment would have in the CA state-court system.

Summary

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o So, here’s what we know about claim preclusion when Suit 1 is in federal court and Suit 2 is in state court:

Diversity where the claim is based on diversity, we know from Semtek

that, as a matter of fed CL, the fed courts choose to have their judgment have the same claim-preclusive effect as it would have had if it had been rendered by the state court of the state where the fed court sits: if and only if the state could give its judgment claim-preclusive effect are other fed courts, and other state courts, required (or permitted) to do the same.

o Based on Erie policies Federal question

Where the claim is based on a federal question, pre-Semtek law makes it clear that here, too, the fed courts apply fed CL to determine the preclusive effect that their judgment should have. But, in this situation, there is no “forum state” court whose law should be applied. Instead, the fed courts will develop their own case-by-case policies about when their judgment should have preclusive effects (and later state courts will be required to give the same preclusive effect if a case relating to that fed-question claim is brought in state court.)

Semtek held that while fed law determines the preclusive effect of fed judgments on the merits of a case, the fed rule of decision in diversity cases generally should refer to the law of the state in which the rendering court sits.

ISSUE PRECLUSION (COLLATERAL ESTOPPEL [172-

Effecto Regardless of which of the parties to an action is victorious, the judgment is

“conclusive in a subsequent action between them upon the issue actually litigated in the action.” A party who seeks to relitigate one of the issue disposed of in the first trial is said to be collaterally estopped from doing so.

o Application The principles of collateral estoppel always apply where both of the

parties in the second action were present in the first scene. These rules sometimes, but not always apples where only the person against whom estoppel is sought to be used was present in the first action.

Methods of determining what issue would be determined in the first caseo (1) ask the fact finder...not particularly helpful

Here, testimony of the judge of the lower court did not prove particularly helpful

Practice point: if your in a court where issues of consequence are being decided have your find of fact write down the issues that have been decided

52 requires judges to make findings

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Not necessarily worth asking the juries because the jurors may differ of particular issues

o (2) have a trial to determine what issues were resolved in the first trial…not particularly helpful

waste of resources, and former adjudication is about saving resourceso (3) reason our way to a proper conclusion…more helpful

you can look to the verdict you can look to the transcript you can look to the pleadings

helps you to understand at least what issues are before the court you can look to the jury instructions you can look to special verdicts, interrogatories, etc

Borel Theoretical coherence is overrated in the real world All situations are not the same across the board when applying legal principles

o Factual variants In essence, we probably should not give binding legal determinations to future

cases However, if you structure the litigation to the extent possible that you have a

class action, then if you chop that class into subclasses categorized by particular facts, you then having a the ruling that applies in already in place…thus you can use collateral estoppel offensively

o You can couple this approach with special verdicts Verdicts couple with special interrogatories…Rule 49

Thus, covering any uncertainty to what a juryo You can add the findings to the ruling…Rule 52

Grand take away from Borel and Little If an issue is already litigated, then you may be precluded from litigating it again

o You determine the preclusion issues by looking at what was necessarily decided in the previous case

o You can apply issue preclusion to issues of law, fact, and mixed law/factso The cleaner the issue, the greater the chance it will be given preclusive

effect If not preclusive effect, then at least we get stare decisis Cleanness of the verdict

Follow 49 and 52

Sunnen (US SC) In theory, even the most modest change in the law could possibly wipe away the

preclusive effects of prior judgmentso Change of legal climate

If, between the first and second suits, there has been a significant change in legal principles, the court may as a discretionary matter decline to apply collateral estoppel. This is especially appropriate

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where use of collateral estoppel “would impose on one of the parties a significant disadvantage, or confer on him a significant , with respect to his competitors.”

The preclusive effects of legal decisions are extremely messy, muddy Because of the law’s constant evolution, maybe we shouldn’t give preclusive

effects

Collateral estoppel is said to apply only to issues of fact and not of law. Collateral estoppel can, however, apply to mixed issues of law and fact where

general legal principles are applied in specific factual circumstances.o When a rule of law has been determined in the context of a particular set

of facts, there seems to be no reason to allow that issue to be relitigated.

Former adjudicationo Look at claim preclusion first, if no luck, look the issue preclusiono RJ and CE can be used by both Ds and judges

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