Civil Procedure Marcus 7th ed.

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Civil Procedure
Authors Richard Marcus
Martin Redish
Edward Sherman
James Pfander
Text Image of Civil Procedure, A Modern Approach, 6th (American Casebook Series)
Civil Procedure, A Modern Approach, 6th (American Casebook Series)
Taught by
Taught at
Related course(s)

II. THE PLEADINGS[edit]

I. PRE-SUIT[edit]

§ Events, counsel, informal fact-finding, legal research, ADR

II. INITIATING SUIT[edit]

§ Choosing defendants & joining parties (joinder) § Personal jurisdiction • (which state to bring suit; whether state able to bring D in; international shoe) § Subject matter jurisdiction (state v. federal courts)

III. COMPLAINT[edit]

§ Serve complaint / Meet sufficiency of pleading standards• R8(a)(2) & R9(b) & PSLRA Sufficiency of Pleadings (fraud)§ Amend complaint (fixing complaint due to lack of claim, wrong D, etc.)• R15 Amendments and Relation Back§ R18 & 20 Joinder of Claims/Parties (deciding who to sue and for what)• R13 Joinder of Counterclaims

IV. ATTACK COMPLAINT[edit]

§ R12(b) Motion to Dismiss• R12(b)(6) Failure to State a Claim• R12(b)(1) Lack of SMJx [can raise anytime]• R12(b)(2) Lack of PJx [must raise in answer or waive right] § R11 Sanctions

V. ANSWER/RESPOND TO COMPLAINT[edit]

§ R8(b) Answer§ R8(c) Affirmative Defenses• Bar Re-Litigation: Claim Preclusion & Issue Preclusion (& offensive or defensive)§ R13 Counterclaims (going on the offensive)§ R15 Amend answer

VI. PRETRIAL DEVICES FOR OBTAINING INFO / DISCOVERY[edit]

§ Discovery scope§ Initial/required disclosures + discovery tools• Exceptions via attorney client privilege and work product§ R26(c)(1) Motion for Protective Order§ R37(a)(3) Motion to Compel (discovery sanctions)

VII. PRE-TRIAL JUDGMENT / DISPOSITION OF THE MERITS[edit]

§ 7th Amendment Right to Jury Trial§ Motion for Summary judgment R56

VIII. TRIAL[edit]

§ Jury functions, judgment as a matter of law R50 § Appeals & Final Judgment (collateral order exception) § Renewed Motion JMOL - request for new trial R59

Principles Court Types

- Law: Jury & Damages- Equity: Judge & Equitable Relief---------------------------- - State: everything- Federal: fed Q or diversity (>$75k)

THE PLEADINGS[edit]

- Sufficiency of Pleadings' oRule 3: A civil action is commenced by filing a complaint in courto Rule 10 Form of a Pleading. Rule details the layout of pleading w/ paragraphs & references.o Rule 8(a)' requires claim to have 3 things: '§ 1) show grounds for court’s SMJx unless court already has jx and the claim needs no new jx support § 2) short & plain statement of claim (showing pleader entitled to relief) • This is the one we focus on & was changed over time § 3) demand for relief (what is the relief P wants) '

o FRCP 8(a)(2)[edit]

§ Functions: • Notice to D: provide notice to D of what P is upset about, the grounds for the claim, allowing D to figure out what D will need to dispute at trial • Notice to court 'o fact presentation sets out party’s view of facts/evidence to be explored o issue narrowing to figure out what is really in dispute, frame and narrow the issues to be resolved. • Merits screening: helps court ID baseless claims and terminate early stage; deter frivolous claims / extortions for settlement o Downside to requiring specificity is cases may not get decided on merits after full disclosure of facts, lose some accuracy § Historical Evolution of Pleadings Code pleading era (aka “fact pleading era”): historical buckets that you had to fit your complaint into in order to seek granted relief. (required facts in complaint) • Rule 8(a)(2): Claim for Relief. A pleading that states a claim for relief must contain… plain and concise statement of facts constituting cause of action o Gillispie: required plain & concise statement of the facts constituting cause of action. Must allege material, essential, and ultimate facts upon which P’s right of action based (detail every element of claim). Rule is who, what, where, why, when (circumstances of D’s wrongful actions. More than mere legal conclusions. § Modern Application of 8(a)(2) • Modern changed from historical pleadings, so that facts (who, what, when, where) are no longer part of rule. oSimilar functions still but takes out importance of facts and downplays merit screening.• Rule 8(a)(2): Claim for relief. A pleading that states claim for relief must contain (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and (notice absence of the word "facts")• Rule 12(b)(6): Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assertthe following defenses by motion (6) failure to state a claim upon whichrelief can be granted• Rule 84: abrogated forms, templates, etc.§ Modern / Overruled Notice Pleading Standard (Conley) • Notice pleading = needs to give D fair notice of what P’s claims are and the grounds upon which they rest. Does not need specific facts for notice. oUpdated: Twombly overturned Conley to require not only be conceivable but be plausible• Old Conley Standard: A complaint should not be dismissed as insufficient “unless it appears beyond doubt that a P can prove no set of facts in support of his claim which would entitle him to relief.” Does not require a claimant to set out in detail the facts upon which he bases his claim. The rules require a short and plain statement of the claim that will give D fair notice of what the P claims are and the grounds upon which they rest o Legally sufficient: “unless it appears that beyond doubt that P can prove no set of facts in support of his claim which would entitle him to relief” o Factually sufficient: no more facts needed for rule 8, only “short plain statement” claim will give D fair notice (of claim & grounds) § Conley v. Gibson (older): race union issue, no set of facts possible = minimum barrier; only dismiss complaint underR12b6 if appears beyond a doubt that P can prove no set of facts possible. § Pleading Standard' (Rule Paragraph of current application) • A pleading must contain a short and plain statement of the claim showing that the pleader is entitled to relief. The allegation needs factual support but does not need to contain specific facts (not need to contain factual specificity). It just needs enough to give D notice of P’s claim and grounds upon which the claim rests as well as raise it above speculative to plausible. Under Twombly, the pleading cannot be mere conclusory statements and must contain sufficient factual allegations to plausibly add up to the wrong alleged. Twombly gives us a two-prong test to determine whether a pleading meets the standard: 1) cull legal conclusions and 2) determine if leftover factual allegations add up to plausible claim for relief. o Mere legal conclusions and threadbare recitations of the elements will not suffice since they are not given the presumption of truth. Each and every element of a claim must be supported by factual allegations. Factual specificity is not required, but the allegations must be enough to raise a right to relief from speculative to plausible. Plausibility is not the same as probability and is more than sheer possibility. Where there are obvious alternative explanations the claim may not meet the requirement of plausibility. • NOTE: all facts claimed in complaint assumed to be true at this stage (will check truth during discovery)§ Two-Step Process/Test': 'Showing Pleader is Entitled to Relief 1) Cull legal conclusions (identify allegations that are conclusory, throw them out): the presumption of truth is given only to factual allegations, not legal conclusions or threadbare recitals of the elements of a claim o Facts: tangible, knowable, identifiable, verifiable. the factual allegations - tangible, real world showing D involved o Conclusory: threadbare recitals of the elements of a cause of action, naked assertions devoid of further factual enhancement, mere labels, conclusions 2) Plausibility (determine if factual allegation add up to plausible claim from relief): Examine the remaining non-conclusory allegations - o Allow court to reasonably infer alleged wrong. (context specific) o Cannot be a much more likely or obvious explanation o Need to be compelling but does not need to be at least as compelling as competing inferences (PSLRA) o Plausible claim should lead to reasonable possibility discovery will lead to real evidence o Needs to be plausible - more than sheer possibility/speculative § Probability > plausibility > possibility/speculative (more than a sheer possibility) but Court says there are more likely explanations, so it doesn’t rise to plausibility…. § Context specific (same as Twombly and Swierkiewicz) § Public policy rationale - insulate higher ups in military, public safety Twombly: o Not a return to fact pleading, just needs more than “blanket assertion of entitlement” must provide grounds D must say more than “no I didn’t” o Standard - in order to get into discovery, must show plausible that when P pleads factual content, the court will be able to draw an inference of liability o A reasonable expectation that discovery will reveal evidence of allegation o “reasonable expectation that discovery will lead to real evidence” "a formulaic recitation of the elements will not do" pleadings must"nudged from conceivable to plausible” § Court rejected Twombly complaint b/c factual allegations did nothing more than speculate that phone companies acted inconcert rather than in parallel § Must allege something more than just mere possibility of violation. o Bell v. Twombly (plausibility standard): Mere self-interested anticompetitive conduct isn’t unlawful, P needed to show that there was a tacit or express agreement between the parties not to compete. SCOTUS finds for Bell- there’s a more likely explanation for behavior (doing what they would do naturally anyway.) + Lack of notice since P claimed many companies over a long-time span without any specifics § Court takes into consideration (1) the cost of a litigation this large (2) threat of discovery expense will push cost-conscious D to settle even anemic cases (discovery very expensive, added push to dismiss) Iqbal: o Court must take facts as pleaded in complaint as true except for facts that only restate legal conclusions o Iqbal’s complaint fails b/c it did nothing more than re-state the elements of a constitutional violation. He did nothing to show that it was plausible that a violation occurred. ''o More obvious explanation of events in this context. Higher standard for certain contexts, like government privacy. § Ashcroft v. Iqbal (reasonable inference of entitlement of relief from alleged facts): P must prove that D adopted and implemented policies, under which he was classified as a person of “high interest”, and then detained in “harsh conditions of confinement”, for the purpose of discriminating. There was a more obvious explanation of the events. Additionally, it appears that high-ranking government officials get more protection than other defendants. 'o However, not required to plead specific facts (Swierkiewicz) § On its face, just needs to meet evidentiary standard 'Twombly v. Iqbal o Both justify decisions around access to discovery. § Twombly more of a money Q (district court must retain power to insist upon some specificity in pleading before allowing a potentially massive factual controversy to proceed) § Iqbal more of a political Q 'Palin o Palin: during pleading phase, court cannot bypass procedure by relying on outside facts and credibility determinations. Complaint about plausibility, not whether less plausible than alternative explanations Swierkiewicz - Notice Pleading o New Standard for Notice Pleading: not required to plead specific facts establishing prima facie (on its face) in complaint - focus on elements on its face as an evidentiary standard rather than pleading requirement '§ Swierkiewicz v. Twombly (newer rule): employment discrimination, fair notice pleading standard. Complaint detailed events leading up to termination, relevant dates, ages and nationalities of at least some relevant persons involved.(Not about how likely P is to win case, just about whether there are enough facts to satisfy rule) o Depends on context: Pro Se is less stringent - only needs specific notice to D. Does not need specific facts, as long as D can respond to notice § Erickson: rule 8 only requires notice and not specific facts. Pro se prisoner suit for indifference to medical needs and withholding medication endangering life. Only requires specific notice to D. (different from Twombly and Iqbal but reason is context)

Code Pleading Era (Gillispie) Notice Pleading Emphasis (Conley) Updated to more than showing (Twombly/Iqbal)

o Heightened Pleading Standards[edit]

§ Pleading Fraud or Mistake• FRCP 9(b): in alleging fraud or mistake, a party must state w/ particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person’s mind may be alleged generally.o Heightened pleading requirement where a party needs to state who/what/when/where/how.o More like code pleading era, Gillispie pleading standard.• Benefits/Cons:o + Protect reputations: claim itself may be damaging; even filing a fraud suit can damage reputation of companyo + Deter frivolous strike suits: fraud can easily be charged and so D have incentives to settle earlyo - Unfair to victims especially when matters are peculiarly within D’s knowledge (if conduct concealed or only D has info, how is P supposed to specify particulars; hard to get beyond dismissal)• Elements of fraud: false representation of material fact, made w/ knowledge of falsity, intent to deceive or induce P to act in reliance, reasonable reliance (connection b/w false rep. and loss), P suffered actual/pecuniary damage as result of reliance§ Private Securities Litigation Reform Act (PSLRA) • PLSR: like R9, must state with particularity the circumstances constituting the alleged fraud. Each statement alleged to have misleading, the reasons or reasons why it was misleading, or if an allegation regarding the statement or omission is made on information and belief, the complaint shall state w/ particularity all facts on which that belief is formed. o Intent cannot be pleaded generally (unlike R9) - P must “state with particularity facts giving rise to a strong inference” that D intended to mislead/deceive (intent to defraud is also specific in PSLRA)o RULE: Inference be more than merely plausible/reasonable = cogent + at least as reasonable as all other alternative expl. (cannot be more compelling inferences)§ Strong inference of scienter (intent/know of wrongdoing) = inference more than merely plausible or reasonable. Must be deemed by reasonable person as cogent (clear, logical, convincing) + at least as compelling as any opposing inference of non-fraudulent intent (at least as reasonable as all other alternatives, incl. the conclusion that D did not commit scienter). Inference does not need to be irrefutable or most plausible.§ Tellabs: CEO made series of statements on product releases, financial projections, etc. that allegedly misled investors - strong inference of scienter.

R8(a)(2) R 9 PSLRA
When Complaints Complaint on Fraud PSLRA gives shareholders the right to bring a private action in federal court torecover damages sustained as a result ofsecurities fraud
Representations General Specific(particularity cir of fraud/mistake) Specific(particularity on all facts)
Intent(conditions of the mind) General (Plausible) General(state generally intent/malice) (Plausible) Specific & “Strong inference”(More than plausible = cogent/clear + at least as reasonable as all other reasonable explanations)

'- Deter Frivolous Pleadings' o Sanctions § Sanctions General Rules' • Claim is founded on knowledge/info/belief after reasonable inquiry + isn’t created for any improper purpose + claims are warranted by existing law (or non-frivolous argument) + is likely to have evidentiary support + any denials are reasonably based on belief of lack of info. (otherwise, can be sanctioned) o Rule 11(b): to the best of the person’s knowledge, information, and belief formed after an inquiry reasonable under the circumstances: '§ (1) Isn’t to create delayed or increase cost: the claim is not being presented for any improper purpose (harass, delay, increase cost of litigation) '§ (2) has legal basis for claim, reasonably to extend law: claims are warranted by existing law or by a non-frivolous argument for extending, modifying or reversing an existing law. 'No fishing expeditions: discovery is not intended as a fishing expedition (speculative pleading of a case first and then pursuing discovery to support it) Duty of “reasonable inquiry” into the law: Lawyer has duty to inquire into the field of law he’s pursuing.• Exceptions: Sometimes there are good reasons to sue even if you know you won’t win: civil rights era mentality, fighting an unjust law (okay to sue even if can’t win. Bad court decisions must be challenged to be overruled)§ (3) factual contentions have evidentiary support, or will with reasonable discovery: will likely have evidentiary support after a reasonable opportunity for further investigation or discovery § (4) denials are reasonable: denials of facts are warranted by evidence, or reasonably based on belief of lack of information • Rule 11 (c)(1) Sanctions: after notice and reasonable opportunity to respond, court finds rule 11(b) violations, can issues sanctions on lawyer, law firm or party involved. Law firms held jointly responsible. (can be $ or not) (for deterrent or penalty, but usually always for deterring and not punishment) o Filed by opposing party: OP cannot file motions for sanctions right away. First, OP drafts/serves it then gives him 21 days to fix the problem. '§ If he fixes within 21 days, then no sanctions at all (safe harbor). '§ If not fix within 21 days, then file the motion for sanctions. o Filed by court: The court on its own can issue sanctions; "on its own the court may order an attorney, law firm, or party to show causewhy conduct specifically described in the order has not violated rule 11b" Reserved for really bad, willful conduct / like contempt of court. o Court’s discretion: sanctions for violation of Rule 11 is discretionary w/ court! Even if party files something baseless, opposing party not entitled to sanctions. It does not have to occur. Even after filed by opposing side (after safe harbor), still judge’s discretion. o Law firm responsible: After notice and reasonable opportunity to respond, a court may impose an appropriate sanction, a law firm must be held jointly responsible for a violation committed by its partner, associate, or employee '• Note that Rule 11 sanctions can also be applied on answers by D that are answered not in good faith [add]• Zuk v. EPPI (reasonable inquiry): lawyer didn’t reasonably inquire into copyright law & violated R11(b)(2). The liberal pleading rules are not a license to make claims w/o any factual basis or justification. Reasonableness of the inquiry depends on the circumstances (i.e. how much time was available for investigation, how objectively reasonable clients’ statements are, whether attorney relied on clients’ info as facts underlying pleading) o Ethical duty of competence lawyer responsible for knowing those plain and simply elementary principles of law which are commonly known by well-informed lawyers & where can be easily found be research (low standard!) • Hunter v. Earthgrains § Counsel Liability for Excessive Costs (28 U.S.C. §1927): Lawyer “who so multiplies the proceedings in any case unreasonably and vexatiously” may be subject to sanctions—willful bad faith required under this. ''- Amendments (Amending Pleadings)' o Situation: Party wants to amend a pleading/complaint before trial. We need to decide if the amendment is permissible.

o Amended and Supplemental Pleadings[edit]

§ Amended and Supplemental Pleadings' (Rule 15(a)): gives three scenarios to consider when deciding if amendment is permitted.§ (1)Automatic right to amend once (“as a matter of course”) but only if:• (A) within 21 days after party first served the pleading, or• (B) within 21 days after receiving other side’s answer or rule 12 motion• If yes on either à automatically gets to amend and do not need to continue w/ analysis. § (2)If not permitted as a matter of course [one free shot used, or 21 days passed], then ask opposing party if they consent.• Opposing party would have to provide written consent. Usually consents unless there is a good faith argument that court may deny leave to amend under circumstances. § (3) If not consented by opposing party, then ask for “court’s leave” and file motion for leave to amend.• “Give leave” standard: court should freely give leave when “justice so requires” o Ex. if seeking to amend to cure defect raised by 12(b) motion, then it should be liberally granted when there is reasonable possibility defect can be cured. o Policy: liberal attitude to amend to encourage case be judged on its merits.•Rule that court can deny leave to amend based on a balancing of following factors:o 1) Significant unjustified/inexcusable delay § Deny b/c of unduly, inexcusable, significant delay. It must be more than just delay, usually shows bad faith in delay and/or actual prejudice to opposing party.• David: effect of delay highly prejudicial to P b/c 2-yr statute expired and P would be barred from action from other party. Running of statute is serious prejudice, justifies denial of D’s motion to amend. Unduly b/c D could have requested sooner and had access to info needed.o 2)Bad faith (or dilatory motive)§ Delay in seeking amendment as result of bad faith or dilatory motive. • David: P lulled by D during period b/w filing complaint and running of SOL, despite D’s knowledge of necessity.o 3)Repeated failure to cure deficiency (despite previous opportunities to cure)§ Previously allowed amendments that repeatedly failed to cure deficiency. Already tried and does not appear to be a reasonable possibility to cure w/ this new requested amend.o 4) Undue prejudice to opposing party§ There would be undue prejudice (harmed in unfair way). Ex of actual/undue prejudice: SOL, reasonable reliance on previous pleadings, forgo opportunity to talk w/ witness or investigate evidence that is now unavailable• David: Crompton delays and only files to amend right before SOL expires. Plot to run out SOL. Does not give P timely notice of amend.o 5) Futility (time-barred or still not state a plausible claim) § Clear that proposed amendment would be 1) time-barred (SOL), or 2) still does not state plausible claim.• If time barred by SOL à see if claim can relate' back

o Relation Back[edit]

§ Relation Back (Rule 15(c)(1)): After SOL runs out, an amendment to pleading relates back to date of original pleading when:• (B) assert a claim or defense that arose out of the same TO.• (C) change the name of the party (D) if same TO, if within the 90-day period, correct D had reason to know or should have known he was the correct D but for mistake• Policy: correct errors deemed mistakes, so can focus on the merits of the case. § Test for Relation Back w/ Asserting a Claim or Defense:' R15(c)(1)(B) Amendment needs to arise out of same conduct, transaction, or occurrence as original pleading. oTo determine if it arose out of same conduct/occurrence as original:§ Same general set of operative facts§ Same offending instrumentality§ Reliance on at least some of the same evidence / witnesses(or substantial overlap) § Test for Relation Back w/ correct D:1)Amendment needs to arise out of same conduct, transaction, or occurrence as original pleading. (to satisfy R15(c)(1)(B))oDoes not change where, what, when, etc. Only changes who.oTo determine if it arose out of same conduct/occurrence as original:§ Same general set of operative facts§ Same offending instrumentality§ Reliance on at least some of the same evidence / witnesses(or substantial overlap)• Krupski: P only amends to change identity of D, but who, what, when where does not change, so rule satisfied.• 2) Within the 90-day period for serving complaint, provided by Rule 4(m), the newly named D had received notice so that he will not be prejudiced in defending on its merits.o He knew he was intended target / already aware, and therefore, would have anticipated, investigated, prepared, etc., despite SOL expiration and it’s is fair & he won’t be prejudiced. o Does not need formal notice. Just some sort of knowledge (actual or constructive) that there was lawsuit.§ Krupski: new and original D had same lawyer, so new D would have had constructive knowledge.• 3)Newly named D knew or should have known he was the intended target but for a mistake regarding identity concerning proper party’s identity.o D must have known it was a mistake by P so he won’t be prejudiced.§ Krupski: Clear that P was trying to sue owner of cruise, so D should have known they were intended target.§ Smith: not case of mistaken identity but rather trying to make evidence fit the case. Mistake of identity okay, but lack of knowledge not okay. '

Amending Pleadings R15 Relate Back R15c
File as matter of course (once freely) w/in 21 days Or, if used or past, then ask for court/opposing Trying to file/relate back after SOL has run out
Fix/Amend pleading (incl. name of D & adding claim/defense) Fix/Amend pleading for adding claim/defense or changing name of D

- 'Joinder' o Deciding who to sue and for what - how big can a case be/scope§ Must always ask 1) whether rules permit joinder and 2) whether court has jx over it.

o Joinder of Claims & Counterclaims[edit]

§ More liberal rules encouraging packaged litigation.• Policy: efficiency (avoid duplicative litigation; even if different claims, can use same jury, pleading actions, depos, etc.), avoid inconsistent results, although it can be complex and get expensive and confusing, but it also helps facilitate settlement & come to amicable agreement instead of agreeing on each separately.§ Claim Joinder by Plaintiff:• Joinder of Claims (Rule 18(a)): party asserting a claim (P) mayjoin as many claims as it has against an opposing party (D). Can join as many independent/alternative claims as it has against opposing party.o Doesn’t have to arise out of same transaction/occurrence.Permissive. (More flexible than R20. Does not care about nature of claim)§ Claims may be joined even though one is contingent upon the disposition of the other.o Note that even if it permits joining claims, it does not give the court power to hear each of the claims joined, still limited on courts power (SMJx).o [Exam: answer usually always yes, when asked if okay to join, but then need to analyze SMJx]§ Claim Joinder by Defendant (counterclaims):• Counterclaim = claim that a D may have against a P (includes affirmative defenses) o Compulsory v. Permissive:§ Compulsory supports original claim = requires no independent basis for federal jx (may be heard by fed court that has jx over original complaint)§ Permissive not connected to original = it needs to have own federal jx basis to be heard by same federal court (like diversity or supplement jx)• Compulsory Counterclaims (Rule 13(a)): D must state as a counterclaim any claim (at time of service) arising out of the same transaction or occurrence that is subject matter the P’s claim (and does not require adding another party whom court cannot acquire jx)
If fail to assert à waived (now or never!) § If D has counter, must file now, but if something arises later, then different & might be okay to file later.o Policy: efficiency; if sufficiently related, then would be more efficient (time and money) to see together.o To determine if sufficiently related - if same evidence would relate to both claims (broader than simply if the same event controls). Not necessarily immediate in time, just logical conclusion)§ The same transaction or occurrence factors: (These 4 Qs are meant to be fluid, not exact step-by-step test or factors)§ 1) Are the issues of fact and law raised by same claim and counterclaim largely the same?• Fact: closely connected in time and space? Some separation okay, just need enough factual overlap that more efficient to do together.§ 2) Would substantially the same evidence support or refute the two claims?§ 3) Logical relation b/w the two?• what facts need to be proven and what evidence necessary to prove those facts. Answers Q if logical conclusion b/w the two.§ 4) Would res judicata bar a subsequent suit on D’s claim absent compulsory counterclaim rule?• Wigglesworth: D asserted counterclaim against P for defamation/libel (state law). P filed motion to dismiss counterclaim for lack of smjx (permissive since not related; no diversity of citizenship and only in federal b/c of fed Q). Granted b/c ccc has to relate to original so no independent basis for federal jx.• Permissive Counterclaims (Rule 13(b)): a pleading may state as a counterclaim any claim against opposing party that is not compulsory o R13(c) counterclaim does not have to be related to P’s claim (can arise from event unrelated to suit of P)§ It is not logically related under permissive. If it is, then it would not be permissive and instead be compulsory.o Can only bring up PC if have its own independent federal jx basis (such as via supplemental or diversity & amount)

o Joinder of Parties[edit]

§ Permissive Joinder of Parties (Rule 20(a)) (1) Ps or (2) Ds (same rule) - persons who may' join or be joined • Policy: R20 construed broadly, joinder of claims and parties encouraged to promote efficiency and save time & money. It is enough that claims against different parties are reasonably related to satisfy rule.• Persons may be joined in one action as Ps/Ds if: A) they assert any right to relief jointly, severally, or in alternative w/ respect to or arising of the same transaction, occurrences, or series of TO, and § Test if same TO:• Close in time, space, and manner?• Are they logically related?o B) any Q of law or fact common to all Ps/Ds will arise in action § Test: '• Look at substantive law if same, or • Look at evidence + review individual & overlapping evidence: evidence either have commonality or are different parties overlapping & need to be joined to prove the claim. § Against joinder: Individual issues or proof problems that outweigh commonalities. • Important Q to determine if claims belong together: what are individual intents, and would that outweigh the similarities? o Can be difficult to prove different elements for each and every P/D. (would help for joinder if commonalities stronger)§ Kedra (joinder apply): events took place over year and a half but does not matter how much time elapsed b/w incidents. D joined since claims reasonably related to each other. Abuses committed by officers spanned long time period and are all a part of systematic pattern of conduct. Time doesn’t break factual relationship b/w incidents.§ Insolia (joinder not apply): Ps joined and sued tobacco company together for lung cancer, but D filed motion to sever b/c not sufficiently similar: Ps started smoking at diff ages, diff brands of cig, Ps quit for diff reasons, evidence of 1 P getting cancer due to work. Court decided no joinder b/c too many distinct issues among Ps and don’t arise from same TO.• “may” = do not have to join. Can resolve together or not. If deny, then file separately w/o losing any specific right to relief. (policy: do not force parties)• Party does not need to be interested in all claims or relief demanded to join § Additional Joinder Rules:• R20(b) Protective measures for joined parties: court may take protective measures (incl. separate trials) to protect against embarrassment, delay, expense, or other prejudice• R21 Misjoinder of a party is not ground for dismissal of action.o Motion for misjoinder = device for asking court to rule on priority for joinderOn motion or on its own, court may at any time, on just terms, add or drop a party.o Party can file misjoinder or courts can: Court can also sever any claims against a party. (other motions like 12(b)(6), parties need to file the motion, for this, court can do on its own w/o party filing)

ATTACKING THE PLEADINGS[edit]

- Jurisdiction' Courts must have adjudicative authority; both PJ (power over parties) and SMJ (power over the case)' 

o Subject Matter Jurisdiction[edit]

§ Which court (federal or state)? • Inherent judicial power (not individual right) - Cannot be waived o Can be challenged anytime / can raise objection at any time (incl at trial), either party including courts (even to vacate) § State Courts: general jurisdiction; can judge pretty much any case. (ex. common law, state statutory, other state laws, federal cases) • Policy: state autonomy • Issue: have biases towards own citizens, judges need votes, out-of-state D may not want to be seen there, so will want federal, where there is no bias for certain state and judge not elected by voters/decide on voter interests.(we want businesses to expand w/o worrying about this) § Federal Courts: limited smjx jurisdiction. Can only hear small amount of cases. (usually P raises in their state, then D wants to move to federal due to state bias, but can also be P trying to start case in federal if don’t like the state)• Rule 12(b)(1): party may assert the following defense by motion: (1) lack of subject matter jurisdiction• Constitution Art. III: lists the 9 categories of cases federal can hear. Only focus on 2: arising under constitution and U.S. laws (1331) & controversies b/w citizens of different states (1332) o Federal Question (“Arising Under”) Jurisdiction (28 U.S. Code § 1331): federal district courts have original jx of all civil actions arising under constitution, federal laws, or treaties of U.S.§ Requirements: P’s complaint must clearly raise claim arising under federal authority (claim involve right or interest substantially founded on listed) + can only be from P’s, not from defense or counter claim by D à court will have federal smjx§ Mottley o Diversity of Citizenship (28 U.S. Code § 1332): completely diverse citizenship + matter in controversy exceeds $75k§ 1) must be over $75K (otherwise, even if different states, need to be sued in state courts)§ 2) is between citizens of different states - must be complete diversity (no P may be citizen of same state as any D, any overlap b/w the V destroys diversity)
• To be citizen of specific state:o Domicile (citizenship): place of a person’s true, fixed, and permanent home to which she has the intention of returning whenever she is absent therefrom.§ To change domicile: take residence in new domicile (look at factors like employment, home, etc.), intention to remain there indefinitely (start domicile test with where one is born, then moves to)§ Courts look at where domiciled at the time complaint is filed, so can’t change in the middle of the case§ Mas o Corporate citizenship: Corporation deemed to be a citizen of 1) state(s) by which it has been incorporated AND of the state where it has its 2) principal place of business. Need to have diversity for both locations.§ Test: principal place of business is the nerve center (corporate decision making, overall control, coordination - usually headquarters, but can’t be only in name, but maintain essential functions)§ Other test: corporate activities (greatest location of corporateproduction or service activities)§ Hertz • Rule 8(a)(1): Claim for Relief: pleading that states a claim for relief must contain: (1) a short and plain statement of the grounds for the court's jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support§ Supplemental Jurisdiction (28 U.S. Code § 1367): P wanting to add claims to federal case (if related in the action w/ jx, then form part of same case or controversy)• Common nucleus of facts: jx over all claims that are so related to claims in action within original jx that they form part of the same case or controversy. o Basically, if a court has jx over a single claim in complaint, then it has jx over entire civil case.• Exceptions: supp jx does not exist for: claims against D joined under R19(required joinder), R20 (permissive joinder) o Limits against using supp jx to circumvent diversity requirements.Prevents joining non-diverse D or P.Discretion to Decline: court may decline to exercise supp jx if: state claim raises issue of state law (state sovereignty basis), state claim predominates over federal claim, federal part of claims dismissed, or any other exceptional circumstances.o Courts have discretion and must evaluate based on judicial economy, convenience and fairness for litigants§ Removal (28 U.S. Code § 1441): any case that could have been brought in federal court can be removed from state court. (can only remove if case has federal smjx)• One-way street: only goes from state to federal. (can’t remove federal case to state) o If involves both federal and state claims, district court may sever what it does not have jx over and send back to state court.• Defendants: only Ds can remove (Ps can’t). All Ds must agree to removal.• Remove within 30 days of case becoming removeable. • Two exceptions in diversity cases only (not for federal Q):o 1) no removal if any D is a citizen of the forum (D may not remove to federal if citizen of the state in which action is brought)o 2) cannot remove a diversity case more than one year after filed in state court• Exception: Class action suits where any D can remove w/o consent of others even in-state Ds.§ D can use removal à move case from state to federal • Case that can be heard in federal can be removed from state§ D use 12(b)(1) motion for lack of SMJx à try to move from federal to state (argue federal doesn’t have the SMJx for case)• Always from federal to state, since state has general Jx to hear everything!

o Personal Jurisdiction[edit]

§ Can be either state or federal case. Looks at whether that state has the power over that party. Can be waived o Must object in first responsive filing (D who fails to raise objection to PJx in answer or initial motion waives right to raise later); if raised then burden on P to show that its appropriate forum. • Policy: due process right of individual not to have to be subject to a court & not overstep and violate due process rights, reason for pjx and limits • Requires constitutional and long-arm statute authorization § Traditional Territorial Bases for Personal Jx (geographic boundaries) 1) Physical presence at time of service process (even if just stopping by): D physical location when served - state automatically have power over you if you are in their borders.• 2) Domicile in state for individual or State of incorporation (for corp): state will have power over you, even if not physically there currently.o Domicile or state citizenship is a person’s true, fixed, and permanent home, to which the person has the intent of returning to whenever absent from3) Consent or waiver: a) failure to timely object via Rule 12(b)(2) motion, or b) forum-selection clause (signed K that will the state will have pjx over you)§ Minimum Contacts for Out-of-State International Shoe: minimum contacts: if not there in traditional way, as long as there is some minimum contact (relationship), and it does not offend the traditional notions of fair play and substantial justice. o Look at nature and quality of D’s in-state activities and whether exercising PJx on D would be reasonable§ Clearly sufficient: continuous and systematic in-state activities that give rise to liabilities sued on§ Clearly insufficient: causal presence or contact that is isolated/sporadic, claim does not arise from contacts.§ Gray Area: if give rise to current claims then even single or occasional acts can suffice, depending on their nature and quality and circumstances (do specific jx test)• Specific jurisdiction test: Determines forum state jx. Looks at whether activities in state are sufficient for state’s courts to have jx to force D to come in and defend self. o Two-part test; balance factors after (sliding scale, more of one then less of other okay):o 1) Purposeful availment:Is D’s conduct/connection w/ forum state sufficiently purposeful that it can reasonably anticipate being hauled there?§ Something more than mere likelihood of product ending up in forum state. Should have efforts to serve (directly or indirectly) the forum state’s market§ Deliver products w/ expectation that they will be bought by forum state’s consumers§ Deliberately invoking forum benefits and protections§ Contractual dealings (look at entire course of dealings, prior negotiations, future consequences of K, continuing obligations b/c D and forum residents) o 2) Fair Play & Substantial Justice: the protection against inconvenience litigation is typically described in terms of reasonableness or fairness.§ Burden on D § Forum state’s interest (what law governs, any interest in protecting citizens)§ P’s interest for convenient & effective relief (amount of recovery sought v. cost of suing far away, location of witnesses/evidence, etc.)§ Interstate judicial interests for efficient resolution. Shared interests of several states in furthering fundamental substantive social policies. § General v. Specific PJx 'General PJx: If the lawsuit is not connected to D’s contact w/ forum state, then can only have PJx there via general pjx. o General for individual: means a state where a person can be sued for any claim, regardless of where the actions underlying the claim occurred. A court may assert general PJx over a D in the state where the defendant is “home”. § Ex. if D permanently lives in CA, then CA has PJx over D for all actions he commits anywhere. CA courts can assert general Jx over D. (if D commits tort in NY, P can choose to sue D in CA) o General for Corporation: home is its state of incorporation and principal place of business (usually headquarters) [look at SMJx citizenship / nerve center test) o D’s continuous/systematic operations within a state is so substantial and of such a nature to render it essentially home Specific Jx: needs connection b/c lawsuit and D’s contacts w/ state (D’s contacts gave rise to the liability sued on). PJx is based on the D’s contacts w/ the state. '§ Rule 12(b)(2): party may assert the following defense by motion: (2) lack of personal jurisdiction§ U.S. Constitution Amend. V: due process; powers reserved to states; concern w/ stepping on sovereign interests of the states.§ U.S. Constitution Amend. XIV: equal protection of laws• World-Wide Volkswagen Burger King '- Effects of Prior Litigation' o Final judgments § Different final judgment for purpose of appeal v. for purpose of preclusion. § If final judgment entered in one state, it is binding in federal and other states. • Federal gov must pretend like state courts (like in diversity), give same effect to state court judgment as would a state court. '§ Issue spot for preclusion / when preclusion comes up: • R12 motion to dismiss • R56 motion for summary judgment / partial SJ (arguing that an issue has already been decided on preclusion grounds) o Preclusion § Due Process Rule: cannot use preclusion against a party that has not had its day in court in some fashion/manner § Policy: judicial economy, consistency of courts • Due process gives full and fair opportunity to litigate, but if already decided, then it should come out the same and party already had their day in court.Focus is on whether this could have played out differently in suit #2. § D can raise an affirmative D saying facts could be correct but shouldn’t be liable for different reason, including SOL and CP or IP.§ Claim v. Issue Preclusion:

  • CP / Res judicata precludes re-litigation of the claims that have been litigated or could have been litigated.
    • o Both parties must be the same + same sides (same P/D roles! Cannot be on opposite sides). Only parties to prior suits can raise D of claim preclusion.
    • o Same wrongful act: required.
    • IP / Collateral estoppel precludes re-litigation of issues that were actually litigated and necessarily determined in the first suit (Issue narrower) o IP against party from previous case only. Non-mutual IP allows third party to raise IP against party from previous case if elements met. o Same wrongful act: not necessarily based on same action as first. It can be but doesn’t have to be. (issue broader)

oClaim Preclusion (res judicata)[edit]

  • Claim Preclusion
  • A judgment may have a binding effect on a later lawsuit if there was a final judgment on the merits, if the parties in the subsequent action are the same or in privity with those in the first action, and if the suit arises from the same claim or wrongful act as a prior suit. '

o 'CP refers to the prohibition of re-litigating a claim that has already been litigated - Encompass 2 different ideas: '

  • 1) foreclosing any litigation matters that never have been litigated b/c they should have been part of an earlier suit '
    • Preclusive effect of prior judgment extends to all rights P had with respect to claim
    • Related to R18(a) Joinder of Claims: If you don’t join claims, res judicata can bar you from litigating that claim if evidence is the same '
  • 2) foreclosing litigation matters that have been litigated and decided on its merits
    • Includes 12(b)(6) motion (that decided P’s case failed to state a claim and wasn’t fixed / case over) = judgment on its merits = P is res judicata from filing again!
    • Rinehart: impersonate officer. Court dismissed 1st complaint due to failure to state claim w/o leave to amend. Acts as J on merits, so res judicata to new claim / barred.
  • o Policy: more efficient to litigate together. Wasteful to re-litigate.
  • o Rule 41(b): Involuntary dismissal; effect. Dismissal operates as an adjudication on the merits. '
  • Essential elements:

o 1) There must have been a final judgment on the merits

  • only judgments that are final, valid, and on the merits have preclusive effect. '
  • Final = leaves nothing for the court to do but execute judgment
  • Not claim preclusive & not considered to be adjudicated on its merits: lack of jx, improper venue, or failure to join party under R19
  • Dismissal under lack of jx isn’t judging on merits.
  • Improper venue = includes where party did not get a chance to litigate b/c venue; minimal interest or time spent; first case was smaller, and less was at risk, so didn’t focus on it and put minimal interest = lack of judgment on merits (confirm same as issue preclusion?)
  • o 2) Parties in subsequent action must be identical (or closely related) to those in the first
    • Same parties in the same P/D positions
    • Closely related = insurer standing in for injured property, or successor to property
  • o 3) Same claim as the prior suit (involves matters properly considered included in first action)
    • “same wrongful act”
    • Same transactions must have very clear connection
  • Exception: new material facts. Res judicata cannot be invoked to bar a claim that provides new factual evidence that makes a marked factual difference between the prior suit and the current case o operative facts occurring after decision of action à comprise a transaction which may be made basis of second action not precluded by first.
    • o Where important human values at stake, even a slight change of circumstances may afford sufficient basis for second action (not barred)
    • o Whole Women’s Health: case on abortion laws in TX. Didn’t bar on CP since new facts + unconstitutional
  • Transaction Approach: preclusive effect of prior judgment extends to all or any part of the transaction, or series of connected transactions, out of the action arose (to be determined pragmatically) o Manego: liquor license & disco. Subsequent suit didn’t demonstrate separate transactions or show new facts. Barred. o Rush v. Maple Heights: potholes - P suffered personal injuries and property damage from same wrongful act. Only single cause of action can be brought, different injuries occasioned are separate items of damage from such act.
  • o Issue Preclusion (collateral estoppel)
    • Issue Preclusion
      • Effect of foreclosing re-litigation of particular issues of fact or law previously litigated and decided
      • Essential Elements:
    • o 1) 'Party against whom IP asserted was a party to (or in privy w/) prior adjudication'
      • Need to be brought against a party who was in the prior litigation o 2) Issue in later case must be identical issue as in prior case § Substantial overlap b/w evidence or argument?
      • Does new evidence or argument include application of same rule of law as involved in prior proceeding?
      • Could retrial prep and discovery reasonably be expected to embrace same matter?
      • How closely related are claims involved? '
      • Basically w/ how closely related = not just how logical, but substantial overlap in rule of law, evidence, closeness (not just some connection/mere similarity not enough) but nearly identical. More natural use of same evidence that comes up à the more likely closely related)
    • o 3) Issue must have been actually litigated
      • Rule: party to be bound must have had a full and fair opportunity to litigate the issue in earlier proceeding.

(procedurally, substantively, and evidentiarily to pursue) § Full & fair opportunity to present evidence on issue?

  • Look at procedural standards in that forum - was discovery limited? Was witness testimony taken? Experts?
    • Ex. limited forum = arbitration, small claims court, limited jx court o procedural opportunities: different procedural advantages may have prevented party from having same full opportunity to litigate an issue
    • [Exam: if see that suit 1 was in small claim (“limited opportunity”) and 2 was in federal, then know to bring this up!]
  • Similar incentives to defend: if D had little incentives to defend vigorously the first case, then IP would be unfair.

(could be smaller case before w/ nominal damages)' o 4) Issue must have been necessarily decided '

  • Rule 49: Special & General Verdict. General makes it unclear which were necessarily decided. Specific & General w/ specific are clear.
  • General Verdict: simply says we find for D/P (liable/not liable) and relief awarded, if any. (low control of jury, reviewing court doesn’t know how jury arrived at decision)
    • Jury asked to answer specific Qs about key issue of fact, then render general verdict. (leaves up to jury to determine which party prevails)
      • Special Verdict: take every single issue in case, break it down, give to jury, and get specific answers. Requires jury to make written findings on issue of fact, and nothing more. Court applies law to jury findings to determine prevailing party.
      • Court requested jury to make specific findings of fact and judge applies law to those facts and renders judgment accordingly. Able to tell what jury decided on, so easier to tell what was necessarily decided.
      • General w/ Specific: middle ground b/w the two. Court instructs jury on law as in general verdict, but request jury to answer specific cross-check Qs to enable judge to verify that verdict consistent w/ facts. o 5) Decision on Issue must have been essential to court’s judgment / determination in former case
      • Only if it appears that the judgment could not have been reached w/o determining the issue.
      • If issue was not relevant last time, then party didn’t have full/fair opportunity to litigate that issue and court would not preclude.
      • No inconsistent previous judgments (then no clear decision) o Alternative Determination Exception: determination in alternative may not have been as carefully or rigorously considered as it would have been if it was necessary to the result, so not conclusive effect. BUT, if full opportunity to argue case, then can still have IP affect.
      • Malloy: Malloy negligent or Officer B negligent sufficient to support judgment, but not worried not carefully or rigorously considered b/c fully litigated, Judge made full blown findings, and M had every incentive to vigorously litigate. ADE n/a here.
      • 'Compulsory Counterclaims (R13): if raised a counterclaim, then they had to raise everything or cannot use again. '
    • o Unless they were not if on same side (both D in first case), then there would not have chance to raise counterclaim.
    • o Note difference b/c R13 counterclaims “must” be joined when possible or can’t bring up later, but R20 joinder of parties is “may” and doesn’t have to
    • Mutuality of Estoppel (non-party exclusion) à Non-Mutual Issue Preclusion
    • Traditional view of IP was that it must be mutual. Principle: person should not benefit from IP unless also bound by previous judgment. (fairness under due process) o estoppel is mutual if the one taking advantage of earlier adjudication would have been bound by it, had it gone against him
    • Modern/Updated in 1971: SC abandoned mutuality, permitting use of IP by party not a party to first suit against P in first suit.

o Due process forbids IP against party unless she was in earlier litigation, but not require party asserting the plea of IP to have been a party in earlier litigation

  • Non-Mutual Issue Preclusion: IP by person who was not a party to the prior litigation. It could be a D asserting it defensively or a P asserting it offensively. Even when allowed, it cannot be used against a party unless that party (or their privy) have had their day in court on that issue in prior litigation. (b/c of due process; everyone has to have opportunity to be heard in court)
  • Non-Mutual Defensive Issue Preclusion (D asserts IP against P) 'o Permits defensive IP invoked by person not party to case #1, against a P who did litigate and lost that issue in case #1. (still need factors met for party to have had their day in court, necessarily decided, and all other factors)
    • o P litigated and lost issue in suit 1. A new D can assert IP defensively against P on issue decided prior. (same P, different Ds)
  • Non-Mutual Offensive Issue Preclusion (P raised IP against D) o D litigated and lost issue in suit 1. A new P asserts IP offensively against D on issue decided prior. (same D, different Ps)
    • o Parklane: D litigated and lost in issue in suit. Court may permit preclusion b/c P could not have easily joined 1st case, D had incentives to litigate fully, etc. Ruled 7th amendment preserves right to jury trial only w/ issues of fact not already adjudicated. '
    • o Offensive IP factors (combo/balancing, not required elements):
    • 1) P could not have easily joined in earlier action and
  • Could P easily have joined 1st suit rather than waiting on sidelines? Look at if R20 could have applied. Even though not required, if doesn’t join, shouldn’t receive benefit of preclusion (watch what happens, then only join b/c knowing the result)
  • 2) was D harmed by fact issue was previously litigated in forum not of his choosing?
  • Inconvenient venue? '''''
  • Restrictive procedural rules?
  • Was there incentive to aggressively litigate? (if sued in small municipal court, may not have incentive to spend money/defend self, so shouldn’t bind them to that resolution)
  • 3) Are there prior inconsistent judgments on issue, which may suggest it would be unfair to give conclusive effect to any one of them?
  • If any inconsistencies in judgment (one case that ruled differently), then no preclusion b/c unfair.

o Factors are for offensive primarily. (defensive lack factors b/c P choose forum, so court rare to find P didn’t have fair litigation regardless of venue)

RESPONDING TO THE PLEADINGS[edit]

- Responding to the Pleadings / Complaint' o Defendants options when responding to complaint/factual allegations:'

  • Answer under R8b (w/in 21d): respond in good faith w/ admissions & denials (in good faith) of allegations from complaint '
    • Advantage of answer over motion: avoid telling opposing p of holes in their argument/logic b/c you only have to admit or deny '
    • Can include in answer: Affirmative Defenses under R8c: admission to allegations but excuse behavior or overcomes P’s case (incl. claim/issue preclusion, SOL)
  • Motion Rule 12 (w/in 21d): to dismiss, strike, seek a more definite statement, etc. '
    • R12(b)(6) for failure to state claim 'o Or, (1) lack of SMJx and (2) lack of PJx'
  • Assert claims of its own: counterclaims, third-party claims '§ Non-litigation solutions: settlement is encouraged '

oResponding to Complaint by R12 Motion[edit]

  • Responding via Motion to dismiss, strike, seek more definite statement, etc.
  • When to Respond (Rule 12(a)):defendant must serve answer within 21 days(or 60 days if service has been waived). Serving a motion alters the period: if court denies motion then responsive pleading must be served within 14 days
    • Effect of a motion: serving motion under this rule alters these periods: if court denies a motion or postpones, the responsive pleading must be served within 14 days after notice of court action
  • Presenting Defense (Rule 12(b)) Must address all claims for relief in responsive pleading but may assert the following defense (7 total Ds; only focus on): a 12(b)(6) motion to throw out a case due to failure to state a case upon which relief can be granted because:
    • 1) 'Insufficient factual matter to add up to legal wrong alleged'oEven if the plaintiff can prove all the allegations, the plaintiff is still not entitled to relief (Twombly)
      • o This is mechanism for seeking to dismiss a complaint that does not satisfy applicable pleading standard (R8, 9, or PSLRA)
    • 2) OR, the wrong alleged in complaint is not recognized as a violation of any legal rights(not a thing, so not a claim)oBenefits of filing - buys additional time to do research. Delays obligations. Strategic considerations here. All tied to rule 11obligations not to file or assert for improper purposes. Need to have a good faith basis for moving forward.
    • In essence, even if P proves all the allegations there is neither a legally recognized wrong nor insufficient factual matter to add up to a legal wrong that is alleged.
      • o Note that SOL can be a reason for R12(b)(6) motion (that leads to relate back!)
    • When the court is deciding on the motion, it must:
      • Must accept all factual allegations are true.
      • Facts are taken in light most favorable to P, all reasonable inferences must be drawn in favor of P.
    • Can also file motions for (1) lack of SMJx and (2) lack of PJx

PRETRIAL & TRIAL[edit]

- 'Discovery / Pre-Trial Devices for Obtaining Information' o General Scope & Burden of Discovery

  • Purpose of Modern Discovery / Liberal Approach
    • Preservation of relevant info that might not be available at trial
    • Mutual knowledge (of all facts gathered by both parties essential to proper litigation) o Ascertain issues that are actually in controversy b/w parties o Allows party to obtain info that will lead to admissible evidence on issues that are in dispute
    • Reduce possibility of surprise (which ends up w/ greater losses, waste or time/effort)
    • Improves ability to counsel client, engage in settlement, and dispose of case w/o trial
  • Discovery Scope & Rules under R26
  • Scope of Discovery': broad. Can discover almost anything relevant to claim/defense. '

o Rule 26(b)(1): Unless otherwise limited by court order, the scope of discovery is as follows: '

  • Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case
  • considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.
  • Information within this scope of discovery need not be admissible in evidence to be discoverable. (don’t worry about admissible for exam)
  • Duty to disclose focus on three elements/prongs to determine scope of permissible discovery (relevant evidence):

o 1)' non-privileged '

  • not seeking privileged info; privilege is only ground to refuse to answer Q
    • absolute privilege: ACP communications
    • Qualified privilege: attorney work product (unless demonstrated substantial need and justification)
  • o 2') relevant (to case)'
    • relevant = related to material issue, reasonably calculated to lead to admissible evidence
    • Fed R. Evid. 401: Relevant evidence = evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
  • o 3) proportionate (to needs of case & expense w/ discovery request)
  • Only need to provide discovery that is proportional to needs of case - balance factors: 1) considering how important issues are, 2) amount of money at stake and costs, 3) relative access to info.
  • Does burden or expense of proposed discovery outweigh its benefit? (diminishing returns, marginal utility, finality, limits)
    • Responding party must bear cost of complying. Parties should try to be efficient w/ costs. Want to prevent imbalance of power
    • Prob w/ info asymmetry (one party has more info, so more burden/costs)
    • R26(b)(2)(c) courts must limit discovery if:
      • Unreasonably duplicative
      • Can be obtained in less expensive/burdensome manner
      • Party had ample opportunity to obtain discovery earlier
      • Scope outside of permitted by rule.
      • Proportionality limits intended to encourage judges to be more aggressive in identifying and discouraging discovery overuse.
      • Fayda: • Abbott:

o Discovery Devices[edit]

  • Pre-Trial & Discovery Tools Overview
    • Pretrial procedural items: summons, complaint
    • Discovery Qs: mandatory initial disclosure, request for admissions, interrogatories, request for production, oral disclosure
  • Discovery Devices
    • Mandatory Initial Disclosures (Rule 26(a)) (parties) o Unless exempt by R26(a)(1)(B) or otherwise by court, disclosing party must, w/o waiting a discovery request (voluntarily), provide to other parties:
  • 1) 'ID names of people' likely to have discoverable info, witnesses, experts, etc. that disclosing party might use to support claims / defenses
  • 2) 'Documents, tangible things', ESI has in possession, custody, control that may use to support claim / defense o Focus on things in your favor, that support your argument/defense. Only need to disclose what supports you. Do not have to provide extra cards for other side!

o Addressed to parties in order to exchange basics.

  • Interrogatories (Rule 33) (parties) o Can serve up to 25written questions/interrogatories to other side asking to see anything within scope (can help decide who to depose to issue subpoena)
    • o These seek good and bad stuff (as opposed to mandatory disclosures where only need to disclose what is good for you)
    • o Unlike depo, parties can consult w/ counsel before answering/craft answers. Must respond not only on basis of own knowledge but knowledge they can reasonably obtain.oTypes of Interrogatory Qs:
      • Qs seeking people & tangible things
      • Qs designed to get factual info
      • Q of contention of info (“do you contend that…”)
    • Request for Production (RPD) / Document Requests (Rule 34) (parties) o Ask other party to provide documents, electronically stored info, tangible things, or permit entry onto designated land.
    • Electronic documents are discoverable if reasonably accessible (look at protective order otherwise) o Hard part is asking for right documents. Must describe w/ reasonable particularity each item or category of items to be inspected so not missing anything. o Third party: can do all of these on other parties via R45 subpoena

(documents or things relevant but third party unrelated to case)

  • Request for Admissions (Rule 36) (parties)oAddress to parties for purpose of re-pleading; written request to admit truth of any matters within scope relating to:
    • 1) facts, application of law to fact, opinions about either
    • 2) the genuineness of described documents o Receiving party must: answer, specifically deny w/ fair response of substance of matter, or state in detail why cannot truthfully admit or deny.
    • If no good faith basis to dispute, then can get sanctions.
  • o Narrows what is in dispute. Reveals what facts are still at dispute for trial. o Hickman:
  • Oral Depositions (Rule 30, 31) (parties + anyone) o Who can you depose: '
    • Any person, including party, officer/director/employee of entity party, non-party (subject to subpoena) '
    • Entity via “persons most knowledgeable”
      • o Addressed to anyone in order to ask Qs under oath (no judge) + can be used in trial
      • o Limited to 10 maximum & 1 deposition per deponent unless good cause
      • o Also allows parties to observe potential witnesses to see how they will appear at trial if called to testify
      • o Allows attorneys to pin down a witness w/ regard to details o Chief drawback is expense
    • Subpoena (Rule 45) (anyone) o Addressed to anyone and anything that a party wants to Q or examine
    • Medical (Physical/Mental) Examinations (Rule 35) o Normal discovery devices not adequate sometimes. If want medical info, can subpoena MR, depose, etc., but less complete than medical examiner.

o R35 Court may order exam only if the condition is in controversy, then can submit to exam by examiner; can only be made on motion and for good cause and on notice to all parties and the person to be examined.

  • Physical: any party can seek leave of court (via motion) for physical exam if condition in controversy + good cause.
  • Controversy = continuing physical injury; must be current
  • Good cause = 1) relevant to subject matter and 2) specific facts to justify (info + unavailability of less intrusive alt. measures)
  • Mental: stricter/higher threshold. Mental condition must really and genuinely be in controversy + good faith (and limited to what is in Q only, protect privacy).
  • In controversy = continuing emo. distress, directly relevant / essential to claim
  • Good cause = 1) essential/directly relevant + specific facts to justify o Mere conclusory allegations in pleadings not sufficient

o Need more than mere relevance. Must show particularized connection b/c mental and what is at stake.

Why use Depo (instead of interrogatories) Why use interrogatories (instead of depo)
head, and interrogatory requires party to look it up if have access- obligation to give you info within their control and otherwise obtainable! - Use to narrow the dispute

'

o Protective Orders & Sanctions[edit]

  • If asked to provide discovery that you believe is unreasonable: can object or file protective order.
  • Order to Compel/Protective Order (Rule 26(c))
    • addressed to anyone to trigger judicial oversight
    • courts granted broad discretion / issue an order to protect parties from annoyance, embarrassment, oppression, or undue burden or expense by: o Forbidding disclosure/discovery
      • o Specifying terms, incl. allocation of expenses, time and place (cost shifting not the norm, but sometimes unusual situations is way to deal w/ proportionality problem)
      • o Prescribing discovery method other than the one selected by party o Forbid inquiry into certain matters / limit scope of disclosure or discovery
    • Kozlowski: once determined within scope, responding party has burden of showing suff. reason why discovery shouldn’t be allowed.
    • Note that just b/c compliance is costly or time-consuming not ordinarily sufficient to grant protective order.
    • Specific limitations on ESI: not reasonably accessible b/c of undue burden or cost. Court can still order if requesting party shows good cause, but court may specify conditions.
      • o Electronic documents are discoverable if reasonably accessible o If not reasonably accessible, courts can make determination if expense of retrieving is worth it and on whom that burden should fall Marginal utility test w/ 7 factors if cost worth it: o Extent request specifically tailored to relevant info
      • o Availability from other sources o Total cost of production (compared to controv.)
      • o Total cost of production (compared to resources of parties)
      • o Relative ability to control costs/incentives,
      • o Importance of issues
      • o Benefit to parties of obtaining info
    • Court may also allow only limited discovery on certain issues to see if it will be necessary to move forward on other matters
    • McPeek v. Ashcroft: sexual harassment case. Restoring potentially backed-up data necessary only when results and expense justify. Court ordered a test fun of data to see if anything useful in there.
    • 'Discovery Sanctions'
  • Purpose: ensure party will not profit from failure to comply, specific deterrents to those who bear fault, seek compliance w/ order
  • Appropriate when: 1) public interest in expeditious resolution of lit., 2) court need to manage docket, 3) risk of prejudice to opposing, 4) public policy favor disposition of cases on merits, 5) availability of less drastic sanctions' o Usually hesitant to issue b/c want to decide on merits. '
  • Rule 37(c)(1): address what happens when a party fails to make one of required disclosures (not obeying discovery order to provide/permit discovery)
  • Rule 37(c)(2): addressed to anyone to police behavior. Sanctions only if failure to adhere to discovery is willful rather than merely negligent.
    • o Fail to admit something that should have been admitted under rule 26 (scope of discovery).
    • o Partial Failure to comply - can motion to compel answers under R37(a)(2). Can recover costs, incl. attorney fees for bringing motion, if win.
    • o Total failure to comply - can get sanctions right away and can recover costs via R37(d)
    • o Courts have a lot of discretion in deciding how to apply.
    • Cine 42nd Street: move studio sues competition. Very lazy lawyers. Gross negligent failure (fault/where counsel clearly should have understood duty to court) to comply justify strict sanctions. '
  • Failure to preserve ESI (Rule 37(e)): opponents were routinely deleting ESI, so send freeze order letter to freeze in anticipation (suspend data deletion). If should have been preserved and failed to take reasonable steps to preserve/cannot be restored/cure (w/ intent to deprive other party of info) à presume info lost, instruct jury it was unfavorable, dismiss action/enter default judgment o New Rule 37(e): Provide safe harbor for reasonable steps, avoid punishing meaningless loss of ESI, emphasis on avoiding over preservation, do not require perfection, proportionality considered

'

o Exceptions from Discovery[edit]

  • Attorney-Client Privilege (absolute privilege)
    • Rule 26(b)(1): parties may obtain discovery regarding any non-privileged matter that is relevant to any party’s claim or defense and proportionate to needs of the case.
    • Covers confidential communication b/w client and attorney (or her agent) only if the communication was made for purpose of obtaining or

providing legal advice to client (just speaking is not privilege unless for that purpose) o Communications (oral or written) = conversations, email, letters, etc. o Policy: promote full and frank communication, full disclosure (no fear), accuracy for attorney seeking truth, negative is loss of fact finding/truth but constitutional right of due process more important.

  • Privilege is 'absolute - no disclosure at all unless waived o If privilege applies, then no disclosure (unless waived). No assessment of how important info sought might be. o Client (or potential client) holds privilege (gets to choose whether to invoke or waive privilege). '
  • Attorney does not get say that it is privilege and cannot disclose but can say it for representing client.
  • The communication itself is privileged, not underlying facts o Ex. did you tell your lawyer about how much gas was in the tank?

(privileged/protected) o Ex. how much gas was in the tank? (not privileged/protected) o Ex. attorney hired investigator to find more facts (info not priv.)

  • If ask how you learned that (which was from attorney), object b/c privileged.
  • Elements: 1) communication, 2) b/w attorney (or agent) and client (or Upjohn rule of employees giving info to atty), 3) for purpose of legal advice/services = absolute privilege/no disclosure of communication unless waived by client
  • Attorney-Client Privilege in Corporate Context
  • Looks at whether communication w/ employees of corporate client subject to ACP / whether privilege extends to these communications. SC: lower

level employees (not direct clients) can be protected 'o The privilege exists to protect 1) giving of professional advice to those who can act on it + 2) 'giving of info to the atty to enable him to give sound and informed advice

  • “Control group” = top managers / the people who can act on attorney’s behavior/recommendations = always privileged b/c clients
  • Employees = not direct clients, but privileged if test applies
  • Test: Whether ACP applies for employees (not control groups ppl):
    • o 1) Communication concerned matters within scope of employee’s corporate duties (elated to job role/responsibility)
    • o 2) Communication was needed to supply basis for legal advice (and employees know that is the reason for questioning)
      • Employee just needs to know talking to lawyer for legal reason
    • o 3) And it was treated as confidential within corporation
      • If not treated confidential internally, hard to argue it was privileged and those outside corp. may have better argument that it was not priv. info. '
    • o Upjohn: internal audit, company needs to self-investigate possible bribes. In-house counsel prep questionnaire + conduct interviews w/ employees. IRS subpoena answers and notes. Court said ACP not just for control group, but for employees too.
    • o Note: matters what is in the questionnaires and which employees: as long as it is within role/responsibility of employee + relevant to matter investigating in order to form legal advice + treated as confidential.
  • Different scenario - Upjohn v. Kellogg (internal inv. of fraud):
    • o In-house v. outside counsel: doesn’t matter if same purpose o Non-attorneys conduct interviews: okay if agents acting under attorney direction for same purpose (make sure limited to underlying purpose)
    • o Not expressly informed of purpose of interviews: okay b/c told sensitive interview w/ legal team involved
    • o Different purpose other than legal à Internal investigation undertaken to comply w/ compliance program per DOD regulation [important distinction]: '
      • Okay as long as obtaining or providing legal advice is one of the significant purposes of internal investigation à ACP applies even if there are other purposes for investigation and mandated by regulation rather than exercise of company discretion
    • Primary Purpose Test: Is the seeking of legal advice one of the significant purposes of investigation? Okay if many purposes as long as legal advice is significant.
    • Work Product (WP qualified privilege; mental impression protected)
      • Attorney work product = documents/tangible things prepared in anticipation of litigation by or for client.
        • o Includes interview notes of witnesses, investigative documents, private memos, personal recollections
        • o Does not include oral statements (okay to ask for what they know rather than what they said)
        • o Cannot be someone else’s work not done at attorney’s direction (ex.

buying someone else’s work) Protected if done at attorney’s direction. '

  • Rule 26(b)(3): Protects attorney’s work product from disclosure. Other party cannot discover documents/tangible things prepared in anticipation for litigation.
    • o Policy: attempt w/o necessity or justification to get opposing work product violates public policy - privilege essential for orderly process, promote incentive to investigate/fully do own work, protect time and effort, it wouldn’t be fair for other side and shark practices/inefficient b/c then atty wouldn’t want to do the work if get stolen anyways
    • Qualified Privilege (not absolute): exception to protection rule & opposing counsel can access work product if 1) they are otherwise discoverable under scope from R26(b)(1), or 2) they make a showing of:
      • o a) Necessity: substantial need shown by demonstrating both no alternative means of getting info AND that info is essential/key to the case (make or break the case)
      • o b) Justification / Undue Hardship: cannot obtain substantial equivalent by other means.
    • ex. witnesses not available anymore or can only be reached w/ great difficulty, photos taken before scene cleaned and can’t get same photos

o Balance of the two factors. More of one then require less of other. Still need more than merely a bit of both. Needs to be significant.

  • Hickman: tugboat accident. D hires lawyer to investigate and interview witnesses/survivors (make notes). Discovery, P requests copies of signed statements and details of oral interview. Not protected by ACP but protected by WP b/c no necessity or justification shown.
  • Mental impressions, conclusions, opinions or legal theories of atty or rep regarding litigation is fully protected. '
  • o Tactical reason: shows the attorney’s case/strategy.
  • Ex. cannot ask for full list of witnesses to be interviewed for investigation but okay to ask in interrogatories of all person w/ info. Identify all instead of saying which will choose to interview.
  • o To protect: send to judge to decide which parts might disclose mental impressions and redact mental impressions. If unable to separate, then far greater showing of necessity and unavailability to get hands on it.

- Judicial Control of the Result o Right to Jury Trial

  • Right to Jury Trial
  • U.S. Constitution Amend. VII: in suits of common law, right of trial of jury shall be preserved, and no fact tried by jury, shall otherwise be re-examined by any court in U.S. according to rules of the common law.

o Rule 38 just further protects the right for parties; Rule 42(b) just protects right to jury trial even if court orders separate trials for issues, claims, etc. (court can do this for convenience, avoid prejudice/delays, to be economical)

  • P or D can request jury if there is right to be. It is a waive-able right. (otherwise, will be bench trial) § Functions of jury:
  • Sole and exclusive judge of facts
  • Determine weight of evidence and credibility of witnesses (who to believe and what parts to attach weight)
  • Evaluate testimony w/ own discretion to discount due to witness bias/prejudice, intentional falsehood, not accurate, faulty recollection
  • If discrepancy in evidence, decide if can be reconciled or which version to accept
  • When we resolve case w/o jury or despite its verdict:
    • R12(b)(6) Motion for failure to state a claim (b/c even if P can prove all allegations, it’s insufficient, so D still wins as a matter of law)
    • R56' Summary Judgment '
    • R50' Judgment as a matter of law '
    • R59' Ordering new trial '
  • Court of Law v. Equity
    • Law (jury): generally, only offer damages (monetary relief) and declare rights (such as ownership of property)
    • Equity (judge; no jury)': for equitable relief where there is no adequate remedy at law. '

o Injunctive relief (order D to do something/refrain), specific performance, power to rescind or reform K, power to enforce orders by holding D in contempt for non-compliance

  • If both damages and performance sought à do $ jury trial first & decide if breached à then judge applies that finding to decide remedy, if any. o Jury ($) before judge (equity). Otherwise, problem of collateral estoppel. This maintains right to jury trial.
  • Dairy Queen: P wanted injunction against D’s use of trademark and collecting fees from sub-licensees + payments due
  • Civil Rights / Congressionally Created Rights: jury if proven lawful discrimination. '
  • Curtis: Civil rights act w/ fair housing can grant injunction and damages. It gave P right to demand jury trial. 'o Suits at common law = not just CL suits, but where legal rights were ascertained and determined. '

o Enforcing statutory right to monetary relief for damages enforceable too.

  • Test: Right to Jury Trial:
    • 1) Is claim analogous to one that would historically have been brought at law (jury) or one that would have been brought in equity (judge)?
    • 2) Does P seek relief that was traditionally available at law or available only in equity?

o Jury = monetary relief + tort, K, property [last 3 not on exam]

  • Housing action in Curtis à intentional tort claim à actual and punitive damages sought à relief typically in common law

o Not jury = civil actions invol. claims essentially equitable in nature(seeking injunctions, specific performance, non-monetary)

  • Lawsuits that seek money traditionally treated as legal claims, but right to jury denied if $ relief only incidental to equitable claim for injunction. '
  • Courts will deny request for jury if suit couched in terms of legal/$ but asserts equitable claim.

'

'Jury - Trial Role' Judge - Deciding for MSJ ''''
Functions:- Make all determinations onmaterial facts, inferences,credibility, demeanor.- Sole and exclusive judge of facts - Weigh evidence and credibility of witnesses (who to believe and what parts to attach weight) - Evaluate testimony (decide on witness bias/prejudice, intentional falsehood, not accurate, faulty recollection) - Decide which version to evidence to decide (if discrepancy) Inferences:- Draw all reasonable inferences in light most favorable to non-moving party (cannot choose b/w multiple inferences, draw all in favor of P to see ifGFD)- Reasonable inferences determine by specific context of case (jury job to pick, but if judge finds there can be but one conclusion for reasonable jury to pick, then no need for jury) Credibility:- Judge cannot make credibility or demeanor determination Evidence: - Cannot weigh evidence unless blatant contradiction- (if evidence leads to multiple inferences, must draw reasonable inferences in light most favorable to P, unless blatantly contradicted by other evidence/record (not just disputed, but blatant contradiction) Cannot:- Decide which she believes more likely accurate, weigh on strength (P’s assumed true in inferences for SJ), credibility or demeanor determinations
Rule: SJ if movant shows there is no genuine dispute as to any material fact - “record” “material fact”“genuine dispute”Weight/credibility for jury Reasonable inferences light most favorable for P (assess whether inference reasonable in light of competing inferences & specific context) Has D made sufficient showing? Two ways for showing: - Adickes or CelotexCelo) Is P’s evidence insufficient to satisfy BOP at trial?Adic) Does D’s own undisputed evidence disprove element of P’s claim? Can P rebut D’s showing? - Point to evidence already in record that was overlooked or ignored by movant- Must cast more than metaphysical doubt on credibility of D’s evidence e.g. Can’t rely solely on generalized evid that does not contradict D’s more specific evide.g. can’t rely on evid that is blatantly contradicted by record

o Summary Judgment (Adjudication before Trial)[edit]

  • 'Summary Judgment'
    • Situation: D thinks D should win b/c there is no material fact/genuine factual dispute for opposing side’s claim and that D is entitled to judgment as a matter of law. D submits for MSJ o Either party may move for summary judgment on all or party of a claim [Exam: moving party will always be D; non-moving always P]
    • Court can decide case w/o sending to jury via 12(b)(6) v. MSJ:
  • o 12(b)(6) motion/dismissal: before discovery; only considers complaint allegations. Cannot look beyond and must accept it to be true
  • o R56 MSJ': discovery usually complete or significantly done. Judge looks beyond pleadings to predict what evidence will be at trial and determine whether material facts in dispute'
  • Admissibility at trial: Judge makes decision on what may or may not be admissible at trial (cannot use inadmissible evidence for SJ)
  • Look beyond pleadings to: deposition testimony, responses to written discovery, documents produced/ disclosures, affidavits from clients and witnesses (signed statements)
  • 'Rule 56:'
    • o Rule 56(a): court shall grant MSJ if D shows 1) no genuine dispute as to any material fact & 2) D is entitled to judgment as matter of law
    • Could be but one reasonable legal conclusion for claim/verdict oRule 56(b): MSJ only until 30 days after close of discovery (unless directed otherwise)
    • o Rule 56(c) Procedures: (1) citing parts of materials on record, or (2) showing materials cited do not establish absence/presence of material dispute or adverse party cannot produce admissible evidence
      • (c)(2) party may object that material facts cannot be resented in form admissible in evidence
      • (c)(3) court only needs to consider cited materials, but can consider other materials in record
      • (c)(4) Affidavit or declaration used to support/oppose motion must be made on personal knowledge, set out facts admissible in evidence, and show affiant or declarant is competent to testify on matters stated. o 56(e): If party fails to support/address assertion of fact, court can:

1) Give opportunity to do so; 2) Fact considered undisputed; 3) grant MSJ if facts are still considered undisputed; or 4) issue any appropriate order

  • SJ if D “shows” there is no genuine dispute as to any material fact - Summary judgment appropriate in 3 basic situations: o 1) both sides agree on what happened, on facts of case, dispute entirely about law (not on facts)
    • If only about law, then no need for jury o 2)' parties disagree about some of the facts, but no material facts in dispute. '''''
    • Material Fact: fact that might affect outcome of resolution of claim/defense (i.e. sufficient to prove/disprove element of claim/defense)
    • ex. P has not been able to discover evidence suff. to prove necessary element of claim o 3) parties disagree about facts but no genuine factual dispute.
    • Genuine Factual Dispute = arises when multiple reasonable inferences may be drawn on the evidence in the record
    • evidence of such that reasonable fact finder (jury) could return verdict for non-moving party à jury T (P wants to

show GFD, so no SJ)

  • SJ appropriate when is there can be but one reasonable conclusion as to the verdict
  • Moving party (D) wants to argue there is no GFD = reasonable fact finder could not find for P = only one reasonable conclusion à should be judgment on law (MSJ)
  • Arnstein: P shouldn’t be deprived of crossexamination b/c of crucial test of credibility in presence of jury
  • Dyer: no genuine dispute where P’s sole basis for otherwise incontrovertible testimony is that he might be able to extract contradictory admissions from witnesses at trial.
  • General Principles o Court may not weigh strength of evidence; P’s evidence assumed true (unless blatantly contradicted)
    • Generalized v. Specific Evidence: do not weigh evidence unless it is not just disputed but blatantly contradicted by other evidence.
    • Characterizing as too general that doesn’t do more than raise metaphysical doubt. Court held w/o contradictory evidence about events themselves then no more than metaphysical doubt.
  • Bias: generalized evidence by parents that Bias was not drug user and was good, but there was more specific evidence that contradicted where students saw him use cocaine and drug test. Only compare b/c of blatant contradiction.

o Court cannot assess credibility of witnesses (but P has to raise more than metaphysical doubt on credibility of D’s evidence)

  • Metaphysical Doubt: the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts” (need more doubt to have fact finder / be

GMD)

  • Dyer: P said entitled to trial b/c might be able to convince witness to change story while on stand but otherwise no theory. Suggests credibility might as a metaphysical matter be called into Q. Would need more to call credibility into Q to raise more than metaphysical doubt. o Court draws all reasonable inferences in light most favorable to P (and assess whether inference is reasonable in light of specific context of case)
  • Judge draws all reasonable inferences in light most favorable to non-moving party (cannot choose b/w multiple inferences, draw all in favor of P to see if GFD)
  • Reasonable inferences determine by specific context of case (jury job to pick, but if judge finds there can be but one conclusion for reasonable jury to pick, then no need for jury)
  • Procedure

o D moving for SJ, asserting that fact isn’t genuine disputed needs to support assertion by:

  • 1) citing to particular parts of materials in record (depo, documents, ESI, affidavits, declarations, admissions, etc.)
  • SJ supported by particular materials: admissible information from discovery: 'o on record, which show dispute does not exist, which show other party cannot produce support
  • 2) P can’t produce admissible evidence to support genuine dispute
  • Two methods for MSJ / Showing no genuine factual dispute: '

(does not have to be limited to 1, can try to use both) o 1) Adickes Approach - Disprove Material Facts: affirmatively producing undisputed evidence to disprove a material fact, negating an essential element of P’s claim. (such that D has foreclosed the possibility a jury could accept P’s theory)

  • Look at whether D’s own undisputed evidence disproves element of P’s claim (such that no reasonable jury could find for P)
  • D argues jury must believe this evidence b/c it blatantly contradicts P’s contrary evidence
  • Or, P has not cast more than metaphysical doubt on credibility of D’s uncontradicted evidence
  • Bias: P pointing to evidence (coach didn’t know P to do drugs, parents think role model), not enough to raise more than meta doubt beyond evidence D raised (team members who saw) (better ex than Adickes b/c that attempt to disprove failed)
  • Scott: facts are contradicted by record.
  • o 2) Celotex Approach - P lacks sufficient evidence: D entitled to SJ simply by showing that P does not have sufficient evidence to satisfy her burden of proof at trial on essential element of claim
  • Insufficient evidence of P’s case à D argues inferences do not stretch as far as P would like such that no reasonable jury could reach P’s desired conclusion
    • Look at whether P’s evidence is insufficient to satisfy burden of proof at trial. (such that a reasonable jury would not stretch inferences to reach desired conclusion) o How far does the inferences stretch? Must show lack of evidence by unreasonable inferences. '
    • Celotex: D attempts to show P has insufficient evidence to satisfy BOF at trial.
    • Can P rebut D’s showing?'''
  • o Point to evidence already in record that was overlooked or ignored by movant
    • e.g. can’t rely on evid that is blatantly contradicted by record o Must cast more than metaphysical doubt on credibility of D’s evidence
    • e.g. can’t rely solely on generalized evid that does not contradict D’s more specific evid

o Directed Verdict (JMOL)[edit]

  • Judgment as a Matter of Law (& Jury Trial Process)
    • Rule 50(a)(1): If a party has been fully heard on an issue during jury trial and court finds that a reasonable jury would not have a legally sufficientevidentiary basis to find for party on that issue, the court may:o(a)resolve issue against party, and
      • o (b) grant motion for judgment as matter of law against the party on a claim or defense
      • o (2) A motion for JMOL may be made at any time before the case is submitted to the jury. The motion must specify the judgment sought and the law and facts that entitle the movant to the judgment.
    • Difference b/w JMOL & SJ: Exactly the same standard as MSJ except for timing and evidence used!
      • o Legally sufficient evidentiary basis: standard the same as no genuine dispute as to any material fact but use different evidence. Evidence at trial rather than what we can predict it might be on record developed from discovery.
    • 'Timing of JMOL:'
      • o 1) P puts on her case
    • Burden to produce enough evidence on each element of her claim such that a reasonable jury could find that P has satisfied her burden of proof

o 2) D moves for JMOL via Celotex (functional equivalent since onlyP’s evidence so far)

  • Celotex: absence of sufficient evidence argument - argue P’s own evidence does not add up to her burden of proof regardless of what evidence D might add, so no reasonable jury could find for P.
  • o 3) If motion denied, D puts on his case
    • Rebuttal evidence
    • Evidence seeking to disprove P’s claim
    • Evidence supporting D’s legal defenses o 4) D can again move for JMOL via Adickes (functional equivalent)
    • Adickes: affirmative disproof - argue now by pointing to D’s own uncontroverted evidence negating element of P’s claim, such that no reasonable jury could find for P.
    • Directly contradicts P’s contrary evidence or P has not cast more than mere metaphysical doubt on credibility of D’s uncontradicted evidence, so evidence must be taken as true.
  • o 5) Motion approved & case dismissed, or motion not approved and goes to jury [then possible renewing motion after trial or newtrial if jury error]
    • Galloway: absence of records when something should have been documented. Evidence of insanity thin at best or just speculative. The absence of anything, where the only reasonable conclusion from omission can’t lead to inferences that must be drawn for P to win (Adickes approach). JMOL granted/case dismissed.
  • o Plausibility Inquiry - read cases together to create a standard consistent w/ underlying info that judge not rejecting witness testimony b/c simply don’t believe. It is b/c it is simply insufficient as matter of law to get us over the threshold of sufficiency. [exam:

answer like plausibility inquiry - it depends; argue for either side]

  • Renewing the Motion after Trial (Renewed JMOL)
    • Rule 50(b): if court does not grant a motion for JMOL under R50(a), court is considered to have submitted action to jury subject to court’s later deciding the legal Qs raised by motion. No later than 28 days after entry of judgment, movant may file a renewed motion for JMOL and may include an alternative or joint request for new trial under R59. In ruling on renewed motion, court may: o (1) allow judgment on verdict, if jury returned verdict o (2) order new trial, or

o (3) direct entry of judgment as matter of law

  • Judge may deny R50(a) JMOL, then grant R50(b) renewed JMOL b/c o Prefer for jury rather than judge to reach “right” verdict o Worry about effect of appeal:
  • If order granting R50(b) renewed JMOL (after jury verdict in favor of P) is reversed on appeal, jury’s verdict may be reinstated.
  • If grant R50(a) JMOL prior to verdict, ruling is reversed on appeal, then entirely new trial is only remedy. o Denman: P supposed to prove more likely than not that D and not the grandma negligently crossed center. Jury couldn’t have found for her, so court saying that jury was unreasonable. Court speculating

that jury deliberation must have misunderstood burden required or bias/sympathy

  • Challenging Jury Errors; Motion for New Trial
  • Rule 59(a): (1) Grounds for New Trial. The court may, on motion, grant a new trial on all or some of the issues—and to any party—as follows:

o(A) after a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in federal court

  • 'Category of cases where new trial may be appropriate:'

oCases where there were errors in the trial process

  • Party convinces court that it improperly admitted/excluded evidence
  • Improper instructions to jury
  • Jury misconduct (e.g. juror contact w/ witnesses)oCases where trial process was fair, but result was clearly wrong
  • Newly discovered material evidence which would change outcome
  • Jury’s verdict is not supported by clear weight of evidence**
  • Jury’s verdict on liability is supported by evidence, but its award of damages is clearly excessive or insufficient

o Applying clear weight standard under R59:

  • Judge cannot displace jury verdict merely b/c he disagrees or would have found otherwise. Mere fact a contradictory verdict may have been equally or more easily supported not grounds for new trial
  • Evidence mixed and contradictory
  • Where trial is long and complicated and deals w/ subject matter not lying within ordinary knowledge of jurors, verdict scrutinized more closely.
    • Ahern: a verdict may be set aside, and new trial ordered when verdict against the clear weight of evidence, or is based upon evidence which is false, or will result in miscarriage of justice
    • Don’t use the word “clearly more” - instead say: Against clear weight of evidence, blatantly contradicted by record, overwhelmingly favored

TIMELINE: Pleadings à [dismiss via R12(b) motion] à Discovery à [dismiss via R56 MSJ] à trial starts & P puts on her case à [dismiss via JMOL w/ Celotex] à D puts on case à [dismiss via JMOL w/ Adickes] à Jury submits verdict à [R50(b) renewed JMOL (court to decide allow jury verdict, order new trial, or direct entry of JMOL/dismiss] à Jury verdict à [D file R59 request for new trial]

R12(b) Motion to Dismiss R56 MSJ R50 JMOL
D files motion within 21 days after complaint (before discovery) D files MSJ any time before 30 days after discovery closes (but D files motion for JMOL during jury trial (after P’s case) and/or
can’t too soon or not enough info to use approach) (after D’s case) - before goes to jury
R12(b)(6) Motion for failure to state a claim: P has failed toPLEAD sufficient facts neededto prevail on claim(b/c even if P can prove all allegations, it’s insufficient, so D still wins as a matter of law)R12(b)(1) or (2) dismissed for lack of jx [note that this isn’t final judgment suff. for preclusion effects] P will not be able to PRODUCE EVIDENCE sufficient to prevail on claim or D DISPROVEDMATERIAL FACTS(use what we predict might be on record develop from discovery)Court find that no reasonable jury could find that party w/ burden (only one possible legal conclusion for movant)o After P’s: Celotex - D argues P lacks sufficient evidence After D’s: Adickes - D argues affirmative disproved P’s evidence(use evidence at trial instead)Court find that no reasonable jury could find that party w/ burden (only one possible legal conclusion for movant)* only diff from MSJ is timing and evidence used!
R50(b) & R59 - Renewed JMOL & Request for Trial (only after trial & verdict but within 28d)
Renewed JMOL based on verdict reasonable jury could not have reached (result clearly wrong, errors in jury process, more scrutiny if outside of knowledge of jurors)If Judge approve Re-JMOL à then judge conditionally rule on if new trial granted (or keep verdict or direct judgment as matter of law)[Note that judge can deny JMOL during trial, then grant it after trial]

- Appellate Review o Final Judgment Rule[edit]

  • Appellate Review': '
    • An appeal is not a new trial o no jury, no taking of evidence
      • o just a review of trial transcript/record, trial court’s orders
    • There is no constitutional right to an appeal o Policy for right to appeal: correct errors (to extent worry about trial judge making mistakes), accuracy, ensure uniformity w/ applying, means of ongoing development/evolution of law
    • When right to appeal (Rule 54(a)): judgment as used in these rules includes a decree and any order from which appeal lies.
  • Final Judgment • Definitions:

o Judgment = appealable order = final decision on merits o Interlocutory = not final (something short of entering judgment on merits)

  • Final Decision of District Courts (28 U.S. Code § 1291): court of appeals have jx of appeals from all final decisions of U.S.
    • o Final decision = judgment that ends the litigation on the merits and leaves nothing for courts to do but execute the judgment (only final decisions appealed)
  • [This leads to claim/issue preclusion! Note that dismiss based on Jx is not judgment on merits/final]
  • Final Ex. 1) court grants D’s MSJ, 2) following verdict for P, D moves for trial, court denies motion and enters for P
  • Not final Ex. 1) court denies D’s MSJ, 2) following verdict for P, D moves for new trial, court grants motion and orders new trial (if new trial, then not final decision!)

oInterlocutory ordersnot immediately appealable: ruling on motion totransfer case to another forum (either way court decides, case not end yet), any ruling on discovery motion (short of terminating sanctions), any ruling on admissibility of evidence

  • Policy for decision to be final before right to appeal - efficiency (prevent piecemeal litigation), less honorable delay and harassmentoDownsides: erroneous ruling could taint everything that follows, give up oppy to quickly correct wrong ruling, give up ability to develop law in certain areas (like discovery)
  • 'Certiorari' o28 U.S. Code § 1254: courts of appeals; certiorari: cases in the courtsof appeals may be reviewed by SC by following methods: by writ of certiorari granted upon the petition of any party to civil or criminal

o 28 U.S. Code § 1257: state courts; certiorari: final judgment or decrees rendered by highest court of state a decision could be heard may be reviewed by SC by writ of certiorari where validity of a treaty or statute of the U.S. is drawn in Q or where validity of statute of any state is drawn in Q on ground of being repugnant to constitution

oCollateral Order Exception to Final Judgment Rule[edit]

  • Collateral Order Doctrine (not ending on its merits, but can be immediately appealable under doctrine - it is smaller class of issue separate from but collateral to action, important to be decided review, separate from merits of action and too independent to wait for main cause, and look at if deferring review would be harmful as to a substantial public interest)
  • Small class which finally determine issues separable from, and collateral to, rights asserted in action, too important to be denied review but tooindependent of cause itself to require waiting until final judgment (Cohen)
  • Order must conclusively determine the disputed question, resolve an important issue completely separate from merits of action, and be effectively unreviewable on appeal from final judgment (Coopers & Lybrand)
  • Crucial Q is not whether an interest is important in abstract; it is whether deferring review until final judgement is so imperils/harmful

[substantial public interest] as to justify cost of allowing immediate appeal of type of relevant orders o Ex. indigent P request waiver of court filing fees, court denies, not final judgment on merits but can be appealed immediately under COD. Even though P could proceed while appeal, not realistic sincecan’t proceed w/o the money, but then wrong won’t be fixable if can’t proceed = Yes, should be appealable under COD

  • o order finding lawyer/party to be in criminal contempt à Yes, can’t undo jail time
  • o Cohen: order refusing to enforce statute requiring shareholder class action Ps to post $125k security bond during pendency of securities and fraud litigation à Yes, under COD, can’t go back in time to protect against frivolous litigation if have to wait until final judgment