2008F Goldberg CivPro Outline

OUTLINE OF A CIVIL ACTION 0. PRE-LITIGATION CONSIDERATIONS

1. Does the law furnish relief for this grievance?2. What is the probability of winning?3. Is it worth the time, effort and expense vs. alternatives: settlement, arbitration, self-help, forgetting about it

1. SELECTING A PROPER COURT

1. Personal Jurisdiction2. Subject Matter Jurisdiction

i. Federal: More than $75,0001. General2. Diversity

3. Supplemental Jurisdiction4. Removal5. Venue

2. FEDERAL OR STATE JURISDICTION: ERIE

3. PRE-JUDGMENT (PROVISIONAL) RELIEF

4. COMMENCING THE ACTION

1. Service: reasonably calculated to bring the action to the defendant’s notice5. PLEADING AND PARTIES

1. Complaint: Three objectives regarding level of detail:i. Identifying and separating the legal and factual contentions, limit unnecessary litigation on agreed upon elements (may be too binding)

ii. Establish in advance what a party proposes to prove at at trial (again, too binding)iii. General notice of contentions, cut down on ‘surprise’ litigation (notice pleading)

6. THE RESPONSE

1. 12(b) Motions to Dismissi. 12(b)(6) Failure to state a claim or cause of action

1. Law clearly furnishes no redress for this injury (i.e. frowning at me)2. P failed to include an essential allegation (i.e. that the D was the employer of the person who injured me)3. Too general, notice not adequate

2. Answeri. Admit or deny

ii. Affirmative Defensesiii. Counterclaims (must be answered by P)iv. Implead

7. DISCOVERY

1. Depositions2. Written Interrogatories3. Production of Documents4. Requests for Admissions5. Physical Examinations

8. SUMMARY JUDGMENT

9. THE JURY 1. 7th Amendment Right to Jury2. Selection

i. Challenge for Causeii. Peremptory challenge

10. THE TRIAL

1. Directed Verdict/JML (after P rests)11. SUBMITTING THE CASE TO THE JURY

1. General verdict/General verdict with interrogatories/special verdict12. POST-TRIAL MOTIONS

1. JNOV2. Motion for a New Trial

13. THE JUDGMENT AND ITS ENFORCEMENT

1. Injunction2. Contempt3. Costs

14. APPEAL

15. CONCLUSIVENESS OF JUDGMENTS

1. Res Judicata2. Collateral Estoppel

Goldberg’s Civil Procedure page 1 of 30ish

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1. SELECTING A PROPER COURT

Traditional View: Pennoyer v. Neff [612] The Pennoyer physical presence rule [612] : Exclusive jurisdiction within state, none without. However,

in order to protect its own citizens, a state may exercise jurisdiction over a diverse defendant if he is personally served (notice by attachment sufficient) or he voluntarily appeared. (Dicta: 14th Amend)

Constitutional Basis: 14th Amendment Due Process Requirement: Notice and opportunity to be heard Article IV, §1 Full Faith and Credit Clause: to judgments in other states

1. Personal Jurisdiction [12(b)]

[1] Is there a state Long Arm Statue authorizing jurisdiction? Blanket (to the extent of the 14th Amendment: California) or Enumerated (Specific instances: Massachusetts) follow in the most liberal sense, limit down with [2]

Rule 4(k)(1)(A) Follow local state long-arm statute o EXCEPTIONS:

(1)(B) Service is within 100 miles of court (Bulge)(1)(C) Nationwide service when authorized by federal statute(2) Extends federal power to its outermost constitutional limits in federal claims (ie foreign corporate defendants: Claim must arise under federal law

(a) D must be beyond jurisdiction of any one state(b) National contact must be substantial enough not to violate D’s constitutional rights.)

[2] Is it within constitutional limits? ANY of the following:

Domicile within state Consent:

o Expressly in contract Carnival Cruise Lines, Inc. v. Shute (No evidence of bad faith in forum selection clause, so it holds) [736]. Stevens’ Dissent: Adhesion contract not fair.

Considerations. See Burger King Prior negotiations Contemplated future consequences Terms of contract Course of dealing

o Implied Hess v. Pawloski (Motor vehicle out of state drivers appoint their state’s registrar as their representative. Service upon registrar is sufficient notice) [623]

Regulation reasonably calculated to protect public interest State has power to exclude, and condition, use of highway Not hostile but attempts to guarantee equal footing

Physical Presence in stateo Tag Jurisdiction: Personal Service within jurisdiction. See Burnham v. Superior Court of California

(Ex-Husband served in divorce case while visiting kids. C dan serve within state, even if D is in state on unrelated business) [710].

SCALIA (Majority): Predictability of pedigree, lack of litigation against Can attach debt once establish in personum jurisdiction. See Harris v. Balk [620]. BRENNAN: Look at general fairness factors, not just history.

Minimum Contacts: International Shoe v. Washington (Diverse company with systemic and continuous contacts within Washington, as long as satisfied fair play & substantial justice) [625] ALL THREE:

(1) Activities: Systemic and Continuous = General Personal Jurisdiction. See International Shoe Specific/continuous but limited (and claims arise out of those activities/contacts = Specific

Personal Jurisdiction. See McGee v. International Life Insurance Co. (Despite lack of


2significant business activity in CA (No minimum contacts), this single insurance policy was sold to a resident of CA while in CA and so the entire business transaction occurred in CA) [634]

In Rem Property satisfies Minimum Contacts for Specific Jurisdiction (claim must be related to the property)

Quasi in rem invalidated by due process. See Shaffer v. Heitner (Stock does not grant jurisdiction even in state where corporation is incorporated because specific action took place in another state) [695].

(2) Purposeful Availment: of the benefits and protections of forum state’s laws. See Hanson v. Denkla (Moved to FL after establishing the trust in DE, so FL courts had no in personum jurisdiction over the transaction, nor in rem jurisdiction over the trust) [639].

Internet: See ALS Scan v. Digital Service Consultants [687]. Calder test. Personal Jurisdiction if a person:

o Directs electronic activity into a stateo With the manifest intention of engaging in business or other interactions

within that stateo That activity creates a potential cause of action

Sliding Scale. 3 Categories of Electronic contacts:o Interactiveo Semi-interactive: information exchangeo Passive: information posting

(3) Foreseeability: Stream of commerce, forseeability of being sued in that state, not that the product could get

the there. See World Wide Volkswagon Corp. v. Woodson (Sold car in NY, broke down in OK, not in WWV’s stream of commerce b/c no advertising, no selling etc, so could not foresee being sued there) [641]

Purposeful v. Awareness. O’CONNOR: Must be active conduct directed at state (to protect commerce) vs. BRENNAN: Benefit from commerce in the state makes knowledge/reasonable anticipation fair (to protect individuals). See Asashi Metal Industry Co. v. Superior Court (Defective car parts in stream of commerce not intentionally carried to other states) (PLURALITY) [660]

Don’t have to physically be in forum: known effect of defamatory article is on the person, regardless of where they are. See Calder v. Jones [654].

[3] Fair Play and Substantial Justice: Reasonableness/Fairness factors. Burden on D to show why forum is unconstitutional: “so gravely difficult and inconvenient” that D is at a

severe disadvantage. See Burger King v. Rudzewicz (Sufficient Minimum Contacts even without contract, contract was fair warning, no showing of burden) [672]. Considerations:

o Burden on D (travel, system of law, evidence)o Forum state’s interest (protect citizens, set standards)o P’s interest in effective and convenient reliefo State’s interest in efficiencyo State’s interest in public/social utility

Notice: Due Process requires a reasonably calculated attempt under the circumstances to give notice and a meaningful opportunity to reply. See Mullane v. Central Hanover Bank & Trust (Balance cost of finding all members of class against due process right to be heard: sometimes a notice in the paper is sufficient when cost is too great) [742]

o Does not require actual notice.o But if notice by mail is returned unclaimed, the state must take additional steps to provide notice. See

Jones v. Flowers (Notice of tax sale returned unclaimed. Dissent: too large of a burden on state) [Handout]

Defense: Special appearance: 12(b)(2) motion to dismiss for lack of jurisdiction. Collateral attack (vs. direct attack): did not answer, but brought jurisdiction challenge in second lawsuit


3 14th Amendment: due process, right to respond etc (stemming from notice)

2. Subject Matter Jurisdiction: Article 3(2) of the Constitution grants restricted SMJo 12(h)(3) Cannot be waived, may be determined by the court sua sponte[1] Federal Question Jurisdiction: 28 § 1331 Actions arising under the Constitution, federal laws or treaties

Must arise in a “well pleaded complaint,” not sufficient to anticipate that a defense will raise a federal question. See Louisville & Nashville Rail v. Mottley [765]

[2] Diversity of citizenship: 28 § 1332(a) District court has original jurisdiction where value (exclusive of interests and costs) is greater than

$75,000 [(1) at least one P (2) complete diversity and (3) same case or controversy] and is between

(1) citizens of different states Domicile: “true, fixed, and permanent home and principle establishment, and to

which he has the intention of returning whenever he is absent therefrom” Mas v. Perry [773].

Look at residence, behavior etc Ochoa v. PV Holding Corp. [774] Student retains original domicile Mas v. Perry

(2) citizens of a state and of a foreign state Complete diversity: parties on each side of the “v.” must be totally diverse

(3) citizens of different states and in which citizens or subjects of a foreign state are additional parties and

(4) a foreign state as plaintiff against citizens of a state or multiple states.(c) (1) a corporation is a citizen of

o any state by which it has incorporated ANDo its principle place of business

(d) Class Actiono Multiparty, Multi-forum Trial Jurisdiction Act (MMTJA): authorizes federal jurisdiction over mass tort cases

deriving from a single accident killing at least 75 persons.o Class Action Fairness Act (CAFA):

3. Supplemental Jurisdiction 28 U.S.C § 1367: [805]

[1] Pendant Jurisdiction: allows Federal court to decide a state-law claim that arises from the same transaction/occurrence as a Federal-question 1331 claim already before the court.

Step 1: See United Mine Workers of America v. Gibbs [793] where the Fed Court can maintain supplemental state claims (conspiracy and unlawful boycott) if federal claims (secondary boycotts under the Labor Management Relations Act) are:

substantial and arise from same common nucleus of operative fact

Step 2: 28 U.S.C § 1367: Supplemental Jurisdiction(a) With general jurisdiction, District Courts have supplemental jurisdiction over all other claims so related to original claims, including joinder or intervention. EXCEPT:(b) with diversity jurisdiction, even over non diverse 3rd party impleaders (NJ v. NY -> NY impleads NY2)which does NOT confer supplemental jurisdiction over claims by PLAINTIFFS against:

14 Impleaders19 Mandatory Joinders20 Permissive Joinders24 Interventions

(c) court may decline jurisdiction over a claim arising under state law if(1) claim raises a novel or complex issue of State law(2) claim substantially predominates over the claim where they have jurisdiction(3) District Court has dismissed all claims over which it has original jurisdiction(4) exceptional circumstances

[2] Ancillary Jurisdiction: [DISTINCTION ELIMINATED BY 1367] In a diversity action, P many not assert a claim against a Rule 14 impleaded 3rd party D without an independent basis for federal jurisdiction i.e. if 3rd party D is not


4diverse. See Owen Equipment and Erection Co. v. Kroger (Would not be able to bring new claim against newly impleaded non-diverse party in federal court even though original suit was brought in fed court. She had the choice to bring in state court, did not, would offer P a way around the complete diversity requirement) [797].

4. Removal: State -> Federal (All D’s must agree) 28 U.S.C. § 1441(a) A claim that could have been brought in federal court (original jurisdiction)(b) Original General Federal Jurisdiction claims are removable regardless of citizenship/residence.

EXCEPT: Diversity Jurisdiction claims are removable only if none of the parties joined etc to defendants is a citizen of the state where the action was brought.

Diversity must be at the time removal is sought P can voluntarily amend the complain to drop a resident defendant, then D can remove

(c) District Court has discretion to determine whether to remand a mix of General Federal claims and state claims, or decide all, or some. (protects D’s access to federal forum, otherwise When there is no nucleus of operative fact common to the state and federal claims – state law claims were

dominant, not pendant. See Burnett v. Birmingham Board of Education (No nucleus of operative fact common to the state and federal claims – state law claims were not pendent to federal claim, but were dominant: “kitchen sink”) [810].

5. Venue. Which set of courts is proper jurisdiction? [most convenient and logical court

28 U.S.C. § 1391 RULE:(a) Diversity Cases: Civil actions may only be brought in:

(1) Judicial district where D resides (if all D’s reside in same district)(2) Judicial district where a substantial part of the events/omissions giving rise to the claim occurred(3) Place where D is under personal jurisdiction, if no other options

(b) Federal Question Cases: (1) Where any D resides, if all D’s reside in the same state(2) Where a substantial part of the events….(3) where any D may be found, if no other options

(c) Corporations: Any district where it is subject to personal jurisdiction at the time the action is commenced. (sufficient as if it were a state, otherwise in district w/ most significant contacts)

28 USC § 1392: When D’s or property are in different districts in the same state, any district is sufficient28 USC § 1404: Change of Value, District Court may transfer to another district in which the action might have been brought for the convenience of the parties and witnesses and in the interest of justice28 USC § 1406: Wrong District the court will dismiss the claim or transfer it to where it could have been brought

6. Forum Non Conveniens:

o Basically a motion to dismiss for inconvenient forum. o Narrow applicability – only used in cases with non-US partieso RULE:

(1) Must demonstrate an adequate alternative forum(2) Gulf Oil Corp. v. Gilbert Test:

Private interests of the litigants: See Piper Aircraft v. Reyno (it all happened in Scotland) [751]o Access to evidenceo Access to witnesseso Possibility to view to premiseso All other practical concerns that make the trial easy, expeditious and inexpensive

Public interesto Administrative difficulties due to court congestiono Local interest in having controversies decided at homeo Avoid unnecessary problems in conflict of laws, or in the application of foreign lawo Burdon on citizens in an unrelated forum with jury duty etc


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7. Transnational Jurisdiction: Rst. Foreign Relations Law §421o Jurisdiction based on reasonableness – contacts, residencyo No tag jurisdiction


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2. FEDERAL OR STATE LAW: ERIE

1. Federal Question: under 1331, Federal law controls both substance and procedure: Article 6(2) Sup.Clause

2. Diversity Jurisdiction: under 1332,

[1] FRCP/Federal Statute vs. State law/practice:

YES

NO: Then there is a Direct Clash

YES

NO: Unlikely to have a problem with…

YES

NO

[2] Federal Judicial Practice vs. State law/practice: “Unguided” Erie Choice

SUBSTANTIVE

“bound up”

PROCEDURAL: venue, see Stewart Organization v. Ricoh [853]

YES

NO: do the Modified Objective test (Uniformity vs. Justice)

YES

NO


Can we follow Federal and State simultaneously? Walker v. Armco(can the scope of the federal rule be limited narrowly as possible so that it does not directly conflict with the state rule: here Rule 3 timing is does not control OK S.o.L) [846]

Apply state law (both)

Does the federal statute violate the R.E.A (28§2072) 1. Is Congress authorized to make the rule (SC has the power to make

rules of practice/procedure)2. Does it “abridge, enlarge or modify any substantive right”? S.o.L. is

integral part because it would give the case a longer life. See Ragan v. Merchants (identical to Walker) [848]

Hanna v. Plumer (Mass. Law: personal service, FRCP: substitute a competent adult at the residence of D. FRCP applies when there is a direct clash, doesn’t violate REA)[836]

Apply state

Does it violate the Necessary and Proper Clause of the Constitution? Hanna v. Plumer (Is it unconstitutional?)

Apply state

Apply federal law.

Is the law Substantive (“bound up” in state created rights or obligations) or Procedural? Byrd v. Blue Ridge Rural Electric Co. (SC’s common law to try workman’s comp by judge not binding: Free to try before jury) [831]

Apply state law.(Erie)

Would using the federal practice be outcome determinative? Guaranty Trust v. York (Fed Courts bound by state S.o.L. because it is outcome determinative)

Consider the “twin aims” of Erie per Hanna 1. Would the federal practice create forum shopping?2. Would it result in inequitable administration of the law?

Harlan, concurring: Should ask whether the distinction would effect the decision of the parties in choosing a forum.See Gasperini v. Center ( applying 7th Amend encourages forum shopping b/c damages would not be reviewed in Fed court, but would be in state. Remanded for new determination under state standards b/c of “abuse of discretion.) [855]

Apply federal lawIs there a strong countervailing federal policy? Is this an essential character of federal courts or practice? Byrd (7th

Amendment right to a jury: NOT explicitly argued) Gasperini v. Center (7th Amendment “re-examination clause” o/w state policy for appellate review of a damages verdict)) [855]

Apply state law

Apply federal law

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3. Useless backgroundo Swift: Unified federal common law on issues not specifically delegated to the states, unless there is a specific statute

on the issue, federal general common law presides. PROBLEMS:o Unconstitutionalo Not unifyingo PLUS forum shopping, inequitable

o Substance vs. Procedure: Erie Railroad v. Tompkins (except for matters of the constitution and given to the courts by congress, courts have no power to encroach on the power delegated to the states) [818]

o Discourage forum shoppingo Prevent inequitable application of lawo State law is both statutory and common law

o Outcome determinative test: Fed court should decide as the state court would (is it possible that the outcome would be different? If so, defer to state law.)

o Guaranty Trust Co. v. York (outcome determination) [827]

4. Policyo Problems with Swift

o Forum shopping Black & White Taxio Inequitable administration of justice (no equal protection under law)o Failed to create uniformityo Gave advantage to non-citizenso No “true law”

o Rationale behind Hannao Uniformity in federal courts (procedureo Clarity


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3. P RE-JUDGMENT (PROVISIONAL) RELIEF

o Rule 53: Designating Masters o Rule 54(a-c): Definition of judgment, multiple claims and parties, relief to be grantedo Rule 58: Entering Judgment

1. Seizing a Person or Property, Rule 64: Every remedy available under state law that provides for seizing a person or property to secure satisfaction of the potential judgment. (A federal statute would govern) [arrest, attachment, garnishment, replevin, sequestration, others]

ii. Company can repo on its own and will not be subject to Due Process Flagg Brothers Inc. v. Brooks

2. Injunctions & Restraining Orders, Rule 65: Maintain Status Quo while case is argued(a) Preliminary Injunction: with notice to the other party. Consider the American Hospital Supply v. Hospital

Products (Find for public interest: Bankruptcy causes decrease in competition and an increase in prices) Test:(1) Irreparable Damage (inadequate remedy at law)(2) Damage to P o/w damage to D(3) Likelihood of P prevailing(4) Public interest

(b)(1) Temporary Restraining Order Without Notice:(A) specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable

injury, loss or damage will result to the movant before the adverse party can be heard in opposition AND

(B) attorney certifies in writing any efforts made to give notice and the reasons why it should not be required

(2) Expires in 10 dayso EXCEPTION: Replevin violates due process when property recovered are absolute necessities of life AND the

state does not require a convincing showing that the goods are wrongfully possessed. Weigh possessory interest/significant property interest against the claims in 65(b)(1)(A). Fuentes v. Shevin (Deprivation of stove without opportunity to be heard and without a convincing showing of immediate and irreparable damage violates Due Process)


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4. SETTLEMENT/ATTORNEY’S FEES

1. Attorney’s Fees: [1] American System each side pays its own way UNLESS

(1) Judge wants to punish for a stupid case (Rule 11 Sanctions)(2) Fee-shifting under 42 USC § 1988 (Civil Rights) monetary incentives for attorneys to pursue civil rights claims: Pro plaintiff one way shift structure. Advantages:

lowers barriers to entry ensures a plaintiffs bar and private attorneys’ general encourages litigation (litigation better than no litigation)

(3) Copyright and IT, where corporations are huge

o Hourly, Contingency, Flat rate

[2] Rule 11 Sanctions: Court can order payment of attorney’s fees as a sanction for pleading without adequate inquiry, unwarranted by existing law or fact or based on a frivolous argument

o FRCP 11: sanction pleadings or motions without: [140] Adequate inquiry Unwarranted by existing law or fact or, Based on a frivolous argument for new law

[3] Rule 68 Offer of Judgement: Attorney eats the fee (cost) if eventual award is less than a turned-down offer. See Marek v. Chesney (attorney’s fees included in Rule 68 “costs” that can be shifted to plaintiff who rejects a settlement offer that is more than the final recovery) [148]

o Encourage settlement out of courto Attorney has no ethical obligation to seek fees, consider an offer that pays in full except attorney’s fees. See

Evans v. Jeff D. [150]. Balance fairness to client and ability to maintain private practice


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5. COMMENCING THE ACTION 1. Notice:

[1] Requirements: Service reasonably calculated under the circumstances to bring the action to the defendant’s notice and

Does not require actual notice Meaningful opportunity to reply

o Mail is the constitutional minimum for D’s whose address can be determined by reasonably diligent efforts. See Mullane v. Central Hanover Bank & Trust (constructive notice (newspaper) inadequate when D can be easily informed by reasonable means – mail: personal service is the gold standard, but there were 113 defendants) [742]

EXCEPTION: Notice by certified mail insufficient when letter comes back “unclaimed.” See Jones v. Flowers (single D) [handout] DISSENT: Ex ante/ex post distinction: at time of notice it was reasonably calculated.

2. Preparing a Complaint:Rule 1: Scope and purpose, 3 goals

Just Speedy Inexpensive determination

Rule 2: Civil ActionRule 3: Commence an action by filing a complaint (5(e) defines filing)Rule 4: Summons

(k) Foreign service(m) served within 120 days after complaint is filed

Rule 5: Serving and Filing PleadingsRule 6: Computing TimeRule 7: Pleadings Allowed (complaint, answer to a complaint, answer to a counterclaim designated as a counterclaim,

answer to a cross claim, third-party complaint, answer to a third party complaint, reply to an answer if the court orders)


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6. THE COMPLAINT

1. Three objectives regarding level of detail: Identifying and separating the legal and factual contentions, limit unnecessary litigation on agreed upon

elements (may be too binding) Establish in advance what a party proposes to prove at at trial (again, too binding) General notice of contentions, cut down on ‘surprise’ litigation (notice pleading)

2. Rule 8: General Rules of Pleading(a) (1) Short and plain statement of jurisdiction

(2) of short and plain statement showing the pleader is entitled to relief(3) demand for relief sought

(b) Defenses: Admissions and Denials(1)(B) admit or deny the allegations

(c) Affirmative Defenses: MUST make in the first pleading or waive your right to them (otherwise must make a case for amendment under Rule 15

(d) (2) Allowed to make alternative statements of claim or defense(3) Allowed to make inconsistent claims or arguments

3. Rule 9(b): When pleading fraud or mistake, must state with particularity the circumstances (malice, intent, knowledge and other conditions of the mind are acceptable)

(g): Special damages specifically stated

4. Rule 41 Dismissalo (a) Voluntary Dismissal

(1) By Plaintiff, without prejudice, ifo (i) before answer or motion to dismiss oro (ii) stipulation signed by all parties

o Otherwise, must get permission from court.o If it is with prejudice, it will be harder to bring the case againo With prejudice if case is involuntarily dismissed for second time


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7. THE RESPONSE

1. Respond within 20 days after being served with summons or complaint 12(a)(1)(A)(i) or DEFAULT.

2. Preliminary Motions:o 12(e): Motion for a more definite statemento 12(f): Motion to strike “redundant, immaterial, impertinent or scandalous matter”

3. Rule 11: Sanctions

o (a) Signature: Attorney must sign everything, need not be verified (sworn)o (b) Representation to the court: Subjective – to the best of the attorney’s knowledge, information and belief: “or

later advocating it” (do not have to amend, but cannot pursue allegations not true – prevents frivolous litigation about allegations no one is advocating)

(1) not being used for an improper purpose (not harassment, delay, trying to increase costs) (2) the claims, defenses, and contentions are warranted by existing law or are attempting to non-

frivolously extend, modify, reverse, or create new law. (3) sufficient basis in fact, or easily discoverable (4) denials of factual contentions are warranted on the evidence, or for lack of belief

o (c) Sanctions: (1) Discretionary: may impose sanction. Law firm held jointly responsible. (2) Motion must be separate from other motions and describe specific conduct

(a) take the work away from court w/ safe harbor rule (21 days to correct by withdrawing claims, amend complaint, or file counter-motion against sactions and file own sanctions)

(b) sanctions bad (3) Court may order P to show cause why P hasn’t violated 11(b) (4) Purpose: deter repetition or similar conduct. Sanction up to judge (fine, fee-shift, anything else)

o (d) doesn’t apply to discovery

o How to Avoid Sanctions: 11(b)(1)-(3) (1) Filing has proper purpose (2) Each count has a basis in law (3) Each count has sufficient basis in fact

o Chaplin v. Dupont Advance Fiber Systems. Confederates discrimination based on national origin, religion and race. Religion and race fail the tests of 11(b)(2) and (3)[288].

4. Rule 12(b) Motions to Dismiss: Filed anytime before or with answer

o 12(b) (1) SMJ: cannot waive, may be brought sua sponte under (h)(3) [See page:](2) Personal Jurisdiction(3) Improper Venue(4) Insufficient process(5) Insufficient service of process

*(6) Failure to state a claim upon which relief can be granted(7) Failure to join a party under Rule 19

(g)(1): May join any motion with any other motion(2): May not make further motions unless under (h)(2) or (3)

(h)(1): waive (2)-(5) if omitted from motion


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o Rule 12(b)(6) Failure to state a claim upon which relief can be granted, when we view the facts in the light most favorable to the Plaintiff, if

(1) Law clearly furnishes no redress for this injury (i.e. frowning at me)(2) P failed to include an essential allegation (i.e. that the D was the employer of the person who injured me)(3) Too general, notice not adequate

Notice Pleading and the liberal application of 12(b)(6) Short and plain under 8(a) despite short, confusing and poorly argued complaint. See Dioguardi

v. Durning [197]. D must show that there “could be no set of facts in support.” See Conley v. Gibson (Black

workers suing the union for failure to represent them, court upholds 8(a) in that we should allow discovery in order to figure it out) [199]

Plausibility: Higher standard. See Bell Atlantic Corp. v. Twombly (Parallel conduct of phone service providers non sufficiently plausible) [205]. DISSENT: Reliance interest, limited discovery solves expense, no harm in discovery.

Pro se with tons of facts: notice key. (Return to notice pleading?) Erickson v. Pardus [Handout].

Courts may grant “leave to replead.” Making it easier to bring claims vs. reducing the cost of discovery

5. Answer: [1] Admit or Deny in a short and plain terms Rule 8(b)(1)

May admit or deny in part Rule 8(b)(3)-(4) May state lack of knowledge Rule 8 (b)(5) Silence is admitting (unless response is not required) Rule 8(b)(6) May assert alternative [8(d)(2)] or inconsistent [8(d)(3)] claims or arguments

[2] Assert Affirmative Defenses. Rule 8(c)(1) Arbitration and award Assumption of risk Contributory negligence Duress Fraud Illegality Release Etc….

[3] Rule 13 COUNTERCLAIMS (D v. P) and CROSSCLAIMS (D1 v. D2) (must be answered by P) (a)(1)Compulsory: must argue in original pleading or lose it. See Podhorn v. Paragon (lost by default,

cannot bring new action because it was a compulsory counterclaim) [300] (A) same transaction or occurrence (B) does not reqire adding another party

(b)Permissive: any other claim against P Likely to separate under 13(i), 42(b)

(c) Relief: may exceede and be different in kind (g) Crossclaim: against a coparty:

arises from same transaction relates to any property that is the subject matter of the original claim

[4] Imlpead other parties. SEE BELOW 8. AMENDING PLEADINGS


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8. AMENDING PLEADINGS: ADDING PARTIES & CAUSES OF ACTION

1. Rule 15: Amending Pleadings(a)(1) As a matter of course if

(A) before being served with a responsive pleading OR(B) within 20 days after serving the pleading if a responsive pleading is not allowed (and the action is not yet on the trial calendar).

(2) Otherwise, with written consent or the courts leave (The court should freely give leave when justice so requires).(3) Time

(b) Amendments allowed at trail: Based on objection and tried by consent Strategic dilemma: either object (b)(1) and the other party will move to amend, OR be silent and risk

implying consent (b)(2).(c)(1) RELATION BACK:

(A) The law that provides the applicable Statute of Limitations allows relation back OR (B) Amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set

out in the original pleading (C) Allow a change of party if 15(c)(1)(B) is satisfied AND if it is within 4(m) (120 days) period for

serving the summons after filing complaint if (i) the party received such notice that it will not be prejudiced in defending on the merits. See

Singletary v. Pennsylvania DOC (Sharing an attorney not sufficient, staff not admin, no notice)[259] and Christopher v. Duffy (Adding paint companies long after SoL has run is prejudicial: evidence is stale) [259] AND

(ii) knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party’s identity. Most circuits: Not knowing who (ignorance) is not a mistake, see Singletary. Some jurisdictions allow DOE suits (because it makes sense, esp in civil rights cases ie victim of police brutality)

(d) supplemental pleading for events subsequent to the pleading

2. Joinder of Parties

[1] Third Party Practice: Another party that may be liable to Do Rule 14: IMPLEADER

(a)(1) “is or may be liable” for “all or part of the claim against it.” See Gross v. Hanover Insurance (owner and brother of jewelry store were involved in theft) [311] 10 days or court’s leave after original answer (not motions): Not a party, theory of liability, and same occurance. Derivative liability:

o Indemnification: did not do the worko Contribution: contributory liability – only liable if original D is liable.

(a)(2) Defense: (A) any defense under 12 (motions and answers) (B) counterclaim under 13(a) (compulsory cc’s), (b), (g) (C) any defense the 3rd party P uses (D) may bring any claim arising out of the transaction/occurrence (may be unrelated to claim)

o Rule 22: INTERPLEADER: (a)(1) By Plaintiff: if may be exposed to double or multiple liability may join those persons. Joinder is

proper despite:o (A) claims lack common origin or are adverse and independento (B) P denies liability

(a)(2) By Defendant: through Rule 13 cross-claim or counterclaimo Rule 24: INTERVENTION:


15 Requirements: See U.S. v. NIPSC (no legal interest. Delay and prejudice to original parties 4 yrs)

[329]. Timely, Interest, Disposition of action could impair interest, interest not represented by other parties.

(a) As a matter of right: timely motion, court must permit anyone to intervene who:o (1) is given an unconditional right by fed statute oro (2) claims an interest relating to the property or transaction that is the subject of the action,

and disposing of the action may impair or impede their ability to protect. UNLESS existing parties adequately represent that interest

(b) Permissive intervention:o (1) on a timely motion:

(A) given a conditional right by fed statute or (B) common question of law or fact

o (2) Gov’t Officer or Agency can intervene if based on: (A) a statute or executive order administered by officer/agency (B) any regulation, order, requirement, or agreement issued or made under that order

o (3) Court must consider unduly delay or prejudice to original parites (c) Notice Pleading required

[2] Rule 19: REQUIRED JOINDER (a) Persons Required to be Joined

(1) Required party:o (A) Court cannot accord complete relief w/out partyo (B) Interest that may be

(i) impaired or impeded (Limited funds for recovery) (ii) subject to substantial risk of inconsistent obligations

(2) Joined by court order (3) Improper Venue is justification to dismiss a joined party

(b) When Joinder is not Feasible (due to, inter alia, lack of PJ and SMJ): Up to court whether the action should proceed or be dismissed. Consider:

(1) The extent to which the judgment rendered in the person’s absence might prejudice that person or the existing parties

(2) Ability to mitigate prejudice by:o (A) protective provisionso (B) shaping the relief (i.e. creating a constructive trust)o (C) other measures

(3) Whether the judgment would be adequate (4) whether P would have adequate remedy if the action is dismissed for non-joineder

Rules of thumb Joint tortfeasors not necessary (they are joint and severally liable). See Temple v. Synthes [316] Co-obligators to a contract may be necessary, but generally not indispensable: seeking legal relief

and not recession does not require joinder, does not merit 12(b)(7) dismisal. See Daynard v. Ness [320]

Actions to set aside contract requires joinder of all parties to the contract

[3] Rule 20: PERMISSIVE JOINDER OF PARTIES (a) not forced to join: courtroom disaster, diversity claims etc

(1) Plaintiffs if:o (A) arising out of the same transaction/occurrence or series of t/o ando (B) any question of law or fact common to both

(2) D if:o (A) arising out of the same transaction/occurrence or series of t/o ando (B) any question of law or fact common to both

(b) Court can order (anything including) separation to protect a party from embarrassment, delay, expense, or prejudice


16[4] Rule 21: MISJOINDER and NONJOINDER of Parties

Mis-joinder is not a ground for dismissing the action Long period of time and multiple D’s does not prevent joinder: reasonably related pattern of police

brutality is properly joined in Kedra v. City of Philidelphia [300]

3. Joinder of Claims

[1] Rule 13: COUNTERCLAIMS (D v. P) and CROSS-CLAIMS (D1 v. D2) (must be answered by P)(a)(1)Compulsory: must argue in original pleading or lose it. See Podhorn v. Paragon (lost by default,

cannot bring new action because it was a compulsory counterclaim) [300](A) same transaction or occurrence(B) does not reqire adding another party

(b)Permissive: any other claim against PLikely to separate under 13(i), 42(b)

(c) Relief: may exceede and be different in kind(g) Crossclaim: against a coparty:

arises from same transactionrelates to any property that is the subject matter of the original claim

[2] Rule 18: JOINDER of CLAIMS (a) Join any amount of claims (no common transaction/occurrence requirement) Subject to separation under

42(b) as in 13(b). Contrast w/ 8(d)(3) which joins inconsistent claims, as opposed to 18 multiple causes of action. Efficient, and gives an incentive to settle

4. Rule 42: Consolidation; Separate Trialso (a) Cout can consolidate common questions of law or facto (b) Court can order separate trial for issues, claims etc.


17


18

9. DISCOVERY

1. Rule 26(a)(1)(A): Mandatory Initial Disclosure:14 days after 26(f) discovery conference [26(a)(1)(C)]

(i) Name, address, and telephone number of individuals likely to have discoverable information (and subjects of that information) that the disclosing party may use to support its claims or defenses (unless solely for impeachment)

(ii) copy or description of all documents that it may use to support its claims etc(iii) Computation of damages claimed + documents supporting it(iv) Insurance agreements under which the insurance co. may be liable

o Do NOT have to give information that goes against your case (“Support”)o Violation of this rule results in nearly automatic sanctions under 37(c)

2. Rule 26: General Rules

(a)(2) Experts Rule: Parties must disclose a written report, resume of the expert, and a list of all recent cases the expert has participated in. At least 90 days before trial

(b) Scope and Limits:(1) Any matter relevant to any party’s claim or defense, does not need to be admissible: reasonably calculated to

lead to the discovery of admissible evidence Not unreasonably cumulative or burdensome; and Is not privileged (doctor, attorney, husband-wife etc) see (b)(5)

(3) Work Product of attorney protected, may be outweighed by need (ie witness died – and then specific ‘work product’ notes can be omitted: absolute enforcement would allow abuse through attorneys asking only Yes/No questions).

Hickman v. Taylor. Established “work-product” doctrine of privilege that protects the mental impressions, conclusions, opinions or legal theories of the attorney, in order to maintain a competitive trial (encourage taking notes and prevent attorneys from being witnesses) [340]

Does not apply if work was not done in preparation for trial. Covers all those working for the client in prep for litigation. Exception: party (or other person – but this undermines the rule: allows discovery to turn on which

attorney is on better terms with the witnesses) may obtain a copy of their own statement(4)(B) Non-testifying experts(5) How to claim privilege – must describe

(c) Protective orders (possibly due to a pending 12(b) motion to dismiss or a denied 37 motion to disclose/discover)(d)(1) Timing: Must have conference before seeking discovery. See 26(f).(e) Supplement(f) Conference to plan discovery (g) Signature

3. Rule 37 Sanctions: Failure to make disclosures or cooperate in discovery(a)(1) good faith effort to resolve before filing motion with court to compel discovery/disclosure

(5)(A) if the motion to compel is granted, after opportunity to be heard, party that failed to comply must pay expenses (including attorneys fees) unless:(i) no good faith effort by movant(ii) objection was substantially justified(iii) other circumstances

(B) If the motion is denied, court may issue 26(c) protective measures and must shift expenses unless (above ii-iii)(C) In part: protective order, apportion fees.

(b) Failure to comply with court order = contempt(2) Sanctions


19

4. Techniqueso Depositions: Rule 27-32 to perpetuate testimony (a) before an action is filed (a)(1)(C) must show reason to

perpetuate Limit of 10, may be expanded Benefits: assessing demeanor of witness, spontaneity, follow up questions, non parties Expensive and time consuming

o Written Interrogatories: Rule 33 Limit to 25 Benefits: efficient, inexpensive, available for use at trial Carefully drafted by lawyers to contain little to no information, no spontaneity

o Production of Documents: Rule 34 Request for documents and things to inspect, copy and return Any written or electronic information, also real things like personal property Difficult to strike balance between over and under-inclusiveness. All correspondance is too much in Moss

v. Blue Cross (any possibility of relevancy: burden to show on party seeking discovery) [364]o Physical Examinations: Rule 35 needs court approval in advance and a showing of good causeo Requests for Admissions: Rule 36 lock in particular admissions/denials for trial so as not to overlitigateo Informal Discovery: research, internet, PIo Experts: Key to aiding juries

5. Policyo For:

o Reduce the chance of “trial by ambush” and allow determination upon meritso Promote settlement (95%)o Reduce cost by focusing trial on pertinent issueso Judge will abandon neutrality if she is searching for material trutho Attorney compromises his duty to client by serving as an officer of the courto Alternative to the administrative state: discovery checks bad behavior, and if they didn’t the government

would have to be given that power.

o Against: Adversary instinctso Increased the arenas in which lawyers ‘game’ – strategic use of discoveryo Decrease judicial scrutinyo Pressure to be adversarial (attorney’s obligation to represent his client zealously within the bounds of the

law)/no motivation to disclose

o Defense of Adversarial Process:o Reduce government involvemento Increase ability of parties to control the lawsuit:

individual rights reduce impositional (gov’t) costs promotes societal (and litigant) acceptance of court decisions if they know they had a fair

opportunity (compliance) appearance of justice: reduce judicial advocacy

o Inquisitorial system does not motivate attorneys to make good caseso The claim of the individual checks government power


20

10. SUMMARY JUDGMENT

Summary of Summary Judgment:

12(b)(6) Motion Summary Judgment Directed Verdict(Judgment as a matter of law)

Applicable Rule Rule 12(b)(6) Rule 56 Rule 50When? Typically after the

plaintiff’s complaint is filed

After discovery but prior to the start of trial

After the end of the trial, but before jury decision

Based on? Plaintiff’s complaint (which is assumed to be

true)

Affidavits, disclosures, pleadings, and discovery (interpreted in light most

favorable to non-moving party)

Evidence presented at trial, including testimony and

documents (interpreted in light most favorable to non-moving

party)Standard All plaintiff needs to

overcome a 12(b)(6) motion is a short and

plain statement showing a right to relief

The motion should be granted if there is no genuine issue of material fact and movant is

entitled to judgment as a matter of law

The motion should be granted if the court believes that no

reasonable jury would have legally sufficient evidence to find for the

non-moving partyMoving party’s

burden“plausible”

(Bell Atlantic)Moving party only needs to show that non-moving party hasn’t provided evidence to

prove case (Celotex v. Catrett) *

Moving party only needs to show that on at least one element of the

opposing party’s claim, no reasonable jury could find for them

Non-moving party’s burden to overcome motion

N/A Non-moving party must provide evidence of genuine issues for

trial (Warren v. City of Carlsbad) *

Non-moving party needs a legal sufficiency of evidence to prove its

case

* This applies when the moving party is NOT the party that will bear the burden of proof at trial


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1. Rule 56 Summary Judgment: Pre-trial disposition based on discovery: NO GENUINE ISSUE AS TO MATERIAL FACTo Most cases are not appropriate for summery judgment b/c usually there is a factual disputeo Include: Brief, statement of uncontested facts. Opposition to Motion: brief, facts. Reply. Adjudication.o Can be used tactically as a discovery device

(a) Claiming party (the one seeking relief) can claim after 20 days or when the opposing party serves a motion for summary judgment

(b) Defending party may file at any time(c) pleadings, discovery and disclosure materials on file (affidavits, docs, depos, exams, interrogs, admissions…

ie SWORN testimony) show: There is no a genuine issue as to a material fact and The movant is entitled to judgment as a matter of law. (is the non-moving partys genuine and

material facts legally sufficient)(e) Affidavits etc to support

(2) must respond with specific facts showing a genuine issue

o Burdens (on mover): Production: produce evidence to establish each element of claim Persuasion: must persuade fact finder that her ev o/w Burden on P to prove their evidence is sufficient. See Celotex Corp. v. Catrett (asbestos: D Movant doesn’t

have to disprove P’s claim – may rely on ev presented by P) [476].o Rehnquist: Moving party does not have to negate w/ affidavits etc, so burden shifts to P to prove that

evidence provided by P is sufficiento White (concurring): More, but has met burden.o Brennan (dissenting): Affirmative defense or demonstration, Moving part does not meet this standard.

o Power of the Judge: Judge can determine legal sufficiency of evidence. See Anderson v. Liberty Lobby, Inc. (libel suit) [484, handout].

Dissent: taking job of jury Judge can determine when an expert witness makes no sense. See Matsushita Elec. Industrial Co. v. Zenith Radio

Corp. (anti-trust, economic theory) [485, handout]. Dissent: taking job of jury Judge can weigh evidence when its impact is clear. See Scott v. Harris (Scalia reviewed video of car chase,

determined a Judge can weigh the evidence when its impact is clear) [489].Dissent: a reasonable juror may interpret the evidence differently.

o Policy: Gender o Federal trial judges now more likely to use SJ than before

SJ involves lots of discretion and can hide discriminationo SJ more likely for female plaintiff’s in employment discrimination cases

Takes plaintiff’s right to a jury trial, and process matters a great dealo Gender bias exists in application of SJ, especially in employment discrimination and sexual

harassment cases

o More effects of SJ: SJ shifts power when denied for defendant, leading to easier settlement for plaintiffs Makes discovery more crucial SJ used to clear dockets too?

2. Rule 52 Judgment on Partial Findingso (c) if a party has been fully heard at bench trial, the court may enter judgment on that issue (no jury means judge

evaluates claims both of production and persuasion, law and facts) burden of persuasion, not production


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23

11. THE JURY

1. 7th Amendment Right to Jury trial “Preserved” in comparison with 1791: LAW vs. EQUITY. Chauffers, Teamsters, and Helpers, Local No. 391 v. Terry (breach of collective bargaining agreement and breach of union’s duty of faire representation – entitled to jury trial. DISSENT: Like trust, stay w/ constitution)

[1] Nature of Claim: “analogous cause of action that existed in the 18th century” Suit brought to vacate arbitration award? EQUITY Action by a trust beneficiary against a trustee for breach of fiduciary duty? LAW Attorney malpractice Action? LAW

[2] Nature of Remedy: Monetary Damages = jury UNLESS

(1) Questions of Restitution (Equity)(2) Injunctive Relief (Equity)

o Rule 38(b) Must demand jury trial. (d) A party waives right to jury trial unless demand is properly served and filed.o Rule 39: Court can order trial by jury if it could have been demandedo Rule 47: Selecting Jurorso Rule 48: At least 6 no more than 12. Verdict must be unanimous.o 28 USC §1861: Right to a randomly created jury of a fair cross section of the jury pool not community.o 28 USC §1862: No citizen shall be excludedo 28 USC §1865: Requirements for Jurors

2. Selection[1] Challenge for Cause: Unlimited challenges under 28 USC §1865[2] Peremptory Challenges (3): (See 28 USC §1870) Batson v. Kentucky (once a D has made a prima facie showing of

discrimination, burden shifts to Gov’t to provide a race neutral explanation for striking all black jurors) [457](1) Party opposing a strike must make a prima facie case that the strike was (racially) motivated. Extends to

civil actions in Edmonson v. Leesville Concrete and gender in J.E.B. v. Alabama [458](2) Burden shifts to striker to provide a race-neutral reason for the strikes. Reason does not need to make sense,

just be legitimate. See Purkett v. Elm (black jurors struck for having long curly hair, and mustache’s) [459].

(3) Objector must prove discrimination was purposeful.


24


25

12.POST-TRIAL MOTIONS/ CONTROLLING THE JURY

1. Rule 50 Judgment as a Matter of Law: Post trial, based on testimony and documents

(a)(1) Directed Verdict: legally sufficient evidentiary basis (before jury, after trial) (2) Any time before a case is submitted to a jury, can bring a motion for JML

(b) Renew JML after jury decision: Judgement Notwithstanding the Verdict (JNOV/ Renewed Judgment as a Matter of Law)

o Unconstitutional because it violated the 7th Amendment: “…no fact tried by a jury shall be otherwise re-examined in any Court of the United States…” Overruled because judge is not weighing the facts, he’s just determining legal questions (legal sufficiency of evidence).

o Judge can decide when there is not sufficient evidence to prove an essential element. See Tavoulareas v. The Washington Post (JNOV/JML following jury verdict b/c no legally sufficient evidence to prove an element of claim: malice) [handout].

o Must move for JML at some point in order to reserve the court’s right to evaluate the legal sufficiency of facts (i.e. when a judge denies a motion for JML s/he is simply stating s/he does not have enough info to judge yet)

“court is considered to have submitted the action to the jury subject to the courts later deciding the legal questions raised by the motion,” allowing the judge to weigh legal sufficiency of facts, avoid 7th Amendment problems.

o Could have granted 56(c) summary judgment, but instead waited to see trial evidence because: If jury had agreed with judge the question would be moot and right to jury trial upheld (why use the power

if not necessary) Court of Appeals won’t need to remand for re-trial because they know how the jury found.

o Why to find JML before going to jury If jury disagrees, it wastes time, money and decreases legitimacy of jury trial

o Why Bring? Not enough evidence Evidence is not credible

o Do Rules 50 & 56 eliminate the value of the jury? Yes: jury opinion/time wasted. No:

In cases where JNOV is not exercised, increases validity of jury verdict Evidence not legally sufficient – judge’s mistake, not jury’s Process value

2. Rule 59 Motion for a New Trial: within 10 dayso (a)(1) “for any reason for which a new trial has heretofore been granted.”o Examples:

the judge becoming aware that he has made a mistake that would be considered reversible error by an appellate court,

the jury verdict being so inadequate or excessive as to show the jury acted with prejudice, jury misconduct, or the verdict being against the weight of the evidence.

oo Practice exercise 24: Reaching Additur/more money

o Rule 59 New Trial: within 1


26o Jury basically concluded that the value of life lost by misdiagnosis of the black man is worth less than that

of white men in similar positions.o General arguments about black men are not specific to his situation

However, this undercuts the argument for new trial because of other people in his situation.o Verdict against the weight of the evidence: evidence usually suggests much higher damages, so mistake of

jury. However, if the trial is bifurcated then the new jury does not hear testimony about the loss of life

etc. and my be less sympathetic However, full trial risks jury finding no liability

o Verdict tainted by prejudicial evidenceo Rule 59 (e) Motion to alter or amend the judgment

o Additur v. Remittituro 7th Amendment problem: Additur adds extra money not decided by the jury, revisiting verdicto Remittitur: either the judge

Remits the least amount possible to bring verdict into acceptable rangeo Gives deference to jury (7th Amend)

Remits to exact amount s/he thinks is correcto Judge displaces the fact finder

Remits to greatest amount possible, at low end of range

3. Rule 60: Vacate Judgment: Within a yearo (a) clerical mistakeso (b) Grounds:

(1) mistake (2) newly discovered evidence that could not have been discovered in time for a 59(b) motion for

new trial (3) fraud (4) judgment is void (5) judgment has been satisfied…no longer equitable (ie permanent injunctions) (6) any other reason that justifies relief

o (c) Timing (1) Within reasonable time, for (b)(1)-(3) no more than a year

o Brandon v. Chicago Board of Education: clarifies that Rule 60(b)(6) and 60(b)(1)-(5) are mutually exclusive. Just because you missed the one year window for 60(b)(1), 60(b)(2), or 60(b)(3), doesn’t mean 60(b)(6) can be used.

4. Rule 49 Special and General Verdicts(a) Special Verdict

Risk of special verdict is jury losing grasp of the case as a whole by focusing on specifics (b) General Verdict with answers to interrogatories (from the jury)


27

13. FINAL RELIEF

1. Equitable Relief: Permanent injunctionso Single action injunction: Balance costs of determining damages against cost of injunction and show that damages

are inadequate (not irreparable harm). See Walgreen Co. vs. Sara Creek Property (Cost of injunction against new pharmacy less than estimating damages for 10 years). Injunction creates incentive for the parties to negotiate on their own. Saves on administrative costs.

o Long-term injunction: Court involvement in enforcement, monitored by Masters (See Rule 53)o Can move to lift an injunction if it is fulfilled (i.e. school is desegregated)

2. Legal Relief: Money Damageso Compensatory: Make whole

o Punitive: Deter future conduct, make an example. Must prove injury (emotional distress) that directly links to harm. See Carey v. Piphus (Kids suing for

punitive damages cannot distinguish emotional distress related to suspension from distress related to lack of due process: 42 § 1983, original jurisdiction under 28 § 1343) [122].

Cannot punish D’s for harm to non-parties because it denies their due process right to litigate against those claims, however can consider those harms when calculating reprehensibility. See Philip Morris v. Williams [131].

Steven’s guideposts in BMW v. Gore ($4000 in compensatory, 4 mil in punitive):(1) How reprehensible is the conduct?(2) Ratio of the award to actual/potential harm (frown upon awards grossly disproportionate like 145:1 in State Farm v. Campbell [130].)(3) Comparison of the award to civil or criminal penalties

o Nominal: Token. $1 in Carey v Piphus (above).

3. Declaratory Judgment: Must have adversarial proceeding, not inquisitorial (See Art. III)

4. Consent Decree: Parties agree to terms and have a judge certify and enforce


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14. THE JUDGMENT AND ITS ENFORCEMENT

1. Contempt: MLK Marches in Walker v. City of Birmingham (Predictable Procedure = Justice) [165]

o Ex Parte TRO filed by city, claiming march would be violent and bado Failure to challenge -> Order to show cause why the court is not holding MLK in contempto Collateral Bar Rule barred MLK from asserting constitutional claim, even though it is correct, because procedure

and fairness of administration outweighs this injustice.o DISSENT: Warren: Procedure is the servant of justice. Violating statutes is not contempt, this leads to less respect

for the law. Douglas: Sacrifice predictability in the face of clear absurdity (MLK would not have won challenges).

2. Costs

o Rule 54(d) Costs: other than attorney’s fees are to be awarded to the prevailing parties unless otherwise directed by the court.

o Rule 11 Sanctions: Court can order payment of attorney’s fees as a sanction for pleading without adequate inquiry, unwarranted by existing law or fact or based on a frivolous argument

o FRCP 11: sanction pleadings or motions without: [140] Adequate inquiry Unwarranted by existing law or fact or, Based on a frivolous argument for new law

o Rule 68 Offer of Judgement: Attorney eats the fee (cost) if eventual award is less than a turned-down offer. See Marek v. Chesney (attorney’s fees included in Rule 68 “costs” that can be shifted to plaintiff who rejects a settlement offer that is more than the final recovery) [148]

o Encourage settlement out of courto Attorney has no ethical obligation to seek fees, consider an offer that pays in full except attorney’s fees. See

Evans v. Jeff D. [150]. Balance fairness to client and ability to maintain private practice


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15. CONCLUSIVENESS OF JUDGMENTS

1. Res Judicata (thing has been judged/decided) a.k.a. Claim Preclusion

o Why? Efficiency: System, Defendant Finality Incentive for parties to bring their best lawsuit the first time

o Why not? Day in Court/Equal protection Opportunity

o Must affirmatively plead under FRCP 8(c)

[1] Claim Preclusion: Three Elements (1) A prior suit that proceeded to a final judgment on the merits

Restatement (2 nd ) § 20 : Exceptions to the general rule of baro (1) (a) Judgment is one of dismissal for lack of jurisdiction, for improper venue, or for

nonjoinder or misjoinder of parties; oro (1)(b): When P agrees toa nonsuit without prejudice, or court directso (1)(c) : Statue or Rule of court

(2) the present suit arises out of the same claim as the prior suit Restatement (2 nd ) § 24 : “Claim” & “Transaction” [868]

o (1) The claim extinguished includes “all rights of the plaintiff to remedies against the D with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose”

o (2) Transaction: “related in time, space, origin, or motivation, whether they form a convenient trail unit, and whether their treatment as a unit conforms to the parties’ expectations or business understanding or usage”

Car Carriers, Inc. v. Ford Motor Company (Anti-trust/RICO. Same transaction test appropriate (not same rights, duties, and injuries), common nucleus of operative fact means cannot bring second claim under res judicata – also, court encourages P’s to do all their homework) [870]

(3) the parties in both suits are the same, or in privity

Due Process: every party has their day in court, opportunity. Gonzales v. Banco Central Corp. (2nd group not bared from suing over same issue because not in

privity with first group: No meaningful control & Not represented) [879].o Substantial Control (influence over initial lawsuit i.e. liability insurer, indemniotor etc.

BUT NOT same attorney, witness, assisted with trial)o Virtual Representation (de-facto representation)

o Can only bar challenges to rules that existed at the time and P had the opportunity to bring (New statues justify new claims).

However, once there is a final decision the only option is appeal (cannot bring the same case again if the law changes) Federal Department Stores, Inc. v. Moitie [908].

Exception:


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2. Collateral Estoppel a.k.a. Issue Preclusion

o Restatement (2 nd ) of Judgments § 17: Effects of Former adjudication (1) If for P, claim is (extinguished) merged in the judgment (2) If for D, (3) Conclusive with respect to

any “issue actually litigated and determined if its determination was essential to that judgment”

Cmt. d : Erroneous judgment: Set aside, reversed, motion for new trial, appealed

[] Issue Preclusion: Four Elements (1) same issue (2) actually litigated and decided

No evidentiary hearing required: Adversarial proceeding sufficient. See Jarosz v. Palmer (where parties agreed to litigate by affidavit, judge decided) [895].

(3) by final judgment Not a settlement

(4) essential to judgment Jarosz v. Palmer (Judgment = final determination on the merits of the proceeding. Attorney-client

relationship was not essential to the determination on the merits) [896].

o Doesn’t need to fall under the Mutuallity Doctrine: Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation (Should not afford a litigant more

than one full and fair opportunity for judicial resolution of the same issue) [899].

o Non-Mutual Collateral Estoppel (1) A v. B (A wins issue) (2) A v. C (C not bound by A’s victory over B, because Chas not had the opportunity to defend itself)

(1) A v. B (B wins issue) (2) C v. B (C not bound by B’s victory of over A, because C has not had the opportunity litigate that issue)

o Defensive Non-Mutual Collateral Estoppel (1) A v. B (B wins issue) (2) A v. C (C can argue collateral estoppel against the issue A lost to B)

o Offensive, Non-Mutual Collateral Estoppel (1) A v. B (A wins issue) (2) C v. B (B may be bound by A’s victory, but not necessarily) Things to consider for (2):

Could C have been joined? (if so, allowing C to sue is inefficient because it discourages them from joining -> more than one litigation. Plus, offers additional incentive to sue for those who may not have)

Fairness (If there were low stakes in the first lawsuit (nominal damages), B may not have defended as vigorously as they would against C)

Inconsistent Judgments Procedural Opportunities:

o Higher/lower standards/burden of proof in (1) mean maybe B could have (or definitely would not have if standards were lower) met the standards in (2)

o Inconvenient Forumo Jury not important – “neutral factor” Parklane Hosiery Co., Inc. v. Shore (We allow issue

preclusion in Mutual cases, so it should remain in non-mutual collateral estoppel) [897] Rehnquist (Dissent): Jury is significant procedural opportunity, and essential

under the 7th

EXCEPTION: U.S. Government cannot be collaterally estopped United States v. Mendoza [916].


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3. Complications

o Full faith and credit to decisions by courts in other jurisdictions 20 U.S.C § 1738o §1983 Civil Rights cases does not preclude collateral estoppel of claims in a civil case following a judgment in a

criminal case. See Allen v. McCurry (has his day in court) [916]. Dissent:

Different pressures on a criminal court (protect police officers) Different pressures on D (did not pick forum)

Migra v. Warren City School District Board of Education (§1983 does not address claim/issue preclusion) [921].

o Virtual Representative Friends. Taylor v. Sturgell (Two friends bringing the same claim: second suit precluded by first because

they have a close enough relationship – Herrick represented Taylor’s interests) [handout] Common law class action (creating a class action w/out formally creating one)


32

16. CLASS ACTIONS

1. Rule 23(a) Prerequisiteso (1) So numerous that joinder is impracticableo (2) Common questions of law or fact

o Civil Rights/Discrimination: No “Across-the-board rule” for ethnicity, all members of class must posses the same interest and same injury in order for a class action to be brought. General Telephone Co. v. Falcon (23(b)(2) Class action. Employment discrimination) [951].

Specificity vs. Liberal Notice Pleading 8(a): detailed pleadings that demonstrate commonalityo (3) Representative parties are typical of claims/defenses of the classo (4) Representative parties will fairly and adequately protect interests of class

2. Rule 23(b) 4 Types: 3 Mandatory, 1 Voluntaryo (1)(A) Incompatible Standards: if individual actions would subject the D to incompatible mandates in regards to future

conduct. o (1)(B) Limited Fund: D unable to pay all claims, class action necessary to promote equal treamento (2) Equitable: injunctive or declaratory relief appropriate for the class as a whole

o (3) Common Question [can opt out]: Efficiency, consider:o (A) Interest in individual control of separate actions: How high are the stakes?o (B) Extent of other litigation already begun by/against other class members: Have they been winning/losing?o (C) Desirability of concentrating litigation in one forumo (D) Difficulties in managing a class action – splintering interests

o Must persuade court that common questions predominate over individual questions and that a class action is superior to other available fair and efficient methods: “Predominance” and “superiorority”

o “Blackmail Settlements” and class actions unfairly raising the stakes: In the matter of Rhone-Poulenc Rorer Inc. (Posner decertifies AIDS class action b/c it unfairly raises the stakes AND the claim of each class member is sizeable enough to make individual suits feasible) [946].

o However, raising the stakes is a value of class actions.o Settlement Classes: Amchem Products, Inc. v. Windsor (23(b)(3) Class action brought simply for settlement, class

members excluded from settlement objected to being precluded from bringing their own claims, court applied Due Process despite the fact that this class settlement is the best way to guarantee the most damages payments) [959].

Implications of certification: Personal jurisdiction: Unclear whether court must have PJ over absent members of class w/o notice, no opportunity to opt-out Subject matter jurisdiction: Prior to CAFA, diversity jurisdiction required complete diversity in classes Conflict of laws: Due process limits judge’s ability to nationalize substantive law in avoiding the difficulty of applying various state laws. Statute of limitations: Tolls at commencement, ends if class ends Settlement: Class action can’t be dismissed w/o court approval (see below)

o The court will judge the fairness, reasonableness of settlements Class counsel: Court appointed, approved Attorney’s Fees: Attorneys limited to fees on redeemed claims, not just offered judgment to πs.Class members are barred from re-litigation by res judicata: Exception to standard rules of same party/privity. New litigation barred if:

o adequate representation by parties who were presento party actually participated in litigationo joined party in first class suit w/ same interesto where for any other reason the relationship between the parties warrants it

Class certification is conditional throughout trial, can be decertified if it’s clear it should be. Use caution when individual stakes are high and disparities among class members great.CAFA CAFA expanded federal SMJ to include more class actions:

o 1) > 100 persons in classo 2) At least one member of class is diverse from at least one Δo 3) > $5 million controversy

Exceptions:o Local controversy exceptions:

o Discretionary, if 1/3-2/3 of class are from same forum, and Δs are too.o Mandatory, if >2/3 of class from forum state AND if primary Δ is from state or a significant Δ is from the state, principal injuries occurred there, and there has

been no proceeding class action in the last 3 years.


33o Other exceptions for certain types of cases, against government.

JMPL: Panel that can transfer multiple single cases to a single forum when civil actions of common questions are pending in different districts. (28 U.S.C. §1407)


34

17. POLICY o Burden of Proof:

Production: produce evidence Persuasion: persuade the triar of fact (judge/jury)

o Burden of Pleading: Burden on D for affirmative defenses: 8(c) Defense introduces a new fact & an argument based

on 8(c)(1) that “even if everything the P says is true, we still win b/c….”THE JURY:

Minorities in the Jury [459] underrepresented

Settlement/Attorneys fees

Civil Rights:42 § 1983: Authorizes suits for constitutional violations28 § 1343: District court has original jurisdiction under 1983 claims

Building Blocks of a Lawsuit: Complaints and Answers

o Preparing a Complaint: Doctrine and Strategyo RULES: Procedure contains disputes (reduces variables, provides focus, definition, constraint)

Vs. the narrative o/w procedure. Is uniform application of procedure justice? Or is interpretation?

o HISTORY: England Common Law: “justice through technicality”

o writ pleading (causes of action) if your problem fit into a writ, it was actionable, if not you had no claim: writs were not adjusted to the cases.

Writ: order to court to hear case Not responsive to problems

o Single Issue pleading (back and forth)o Factual disputes go to jurieso Single party A v. B

Equity (for those that did not fit in formal writ system, power to fashion new writs of the chancellor) but up to the Royal Chenellor.

o Bill in Equity only if there is not adequate remedy at law (writ)o TRO, injunctive relief etc.o Could join multiple partieso Defendant had to justifyo Discovery required

19th Century American Shifto Juries thought of as cumbersome, ineffective.o Field Code: David Dudly Field merged common law and equity, known as civil action

Multiple parties Discovery Multiple arguments/damages

o Uniform Federal Rules (1938) Charles Clark (chief drafter to advisory committee to create the FRCP)

Questioning the Adversarial System

o Luban, The Adversarial System [554]o Consequentialist

Truth: adversarial system finds truth through conflict of sideso But both sides are not trying to find truth (ie one side is wrong..?)o Procedural issues hide the truth


35 Legal Rights: Defending the rights of the individual

o Sometimes secures things to which a party is not entitledo Winning focused

Ethical Division of Labor: checks and balanceso Advocates attempt to evade system, not enforce ito (circular logic)

o Non-Consequentialist Intrinsically good: protect the man-in-trouble, special friend to the party

o Does not absolve a lawyer from personal moral responsibility (wouldn’t help a friend robbing a store, right?)

Human Dignity: innocent until proven guiltyo This only justifies a good faith position, not affirmative argumentationo Falls under inquisitorial system

Social Fabric: Democratic consent of governed, rooted in traditiono We do not consent to this systemo We don’t trust it

o Luban’s reason: Cost/Benefit decision – we have no alternative

o German Inquisitorial System [562] Judges select experts, judges advise jury in deliberation, fees same for win/loss, statutory, no

prepare or crossX witnesses, all trained to be judges, lawyers independent from client, way more judges, burden of discovery is on the court.

This requires a great amount of trust in the integrity and impartiality of judges & the system. GOLDBERG’S HYPO: hearing on whether US should shift toward German system:

o Toxic waste processing planto Experts: adversarial bias?

Won’t the town be biased b/c they are the defense? But won’t juries be biased towards plaintiffs?

o All towns-people are not the sameo All actors biased against people: everybody else has an

interest in this plant being there, adversarial system the only way to give town people a voice

Access to quality experts? Adversarial system brings more biased experts

o Fees: people cannot afford since not asking for damages, only injunctive relief Can ask for attorneys fees

o Bipolar system: many parties, complex Adversarial system has evolved into managerial in order to handle

o Judge Bias Judge doesn’t decide on his own (experts, attorneys) Ethical obligations, neutral

o Cost? Mitigates discovery costs

o Discovery Rights of the People in Adversarial

o Distrust of government, pluralist conception of law, society, and reality Rights of the Society in Inquisitorial

o Trust of government and unitary conception of law, society, and reality

Fuller, The Forms and Limits of Adjucation- Claims that “polycentric tasks” are ill-suited for the adversarial system- When judges tackle this tasks, one of three things is bound to happen:

o The adjudicative solution fails ORo The arbiter “tries out” solutions by ignoring judicial proprieties OR


36o The judge may reformulate the problem to make it solvable through adjudication.

Chayes, The Role of the Judge in Public Law Litigation- Claims that lawsuits have dramatically changed from traditional understandings:

o Lawsuits have gone from being bipolar to sprawling and amorphouso Litigation looks at more than just the past but the future tooo Decrees no longer necessarily end judicial involvement in the affairo Judge is not passive, playing a larger role in shaping the litigation

o Rule 16: Alternative Dispute Resolution [577] Mediation, arbitrationo Advocates:

Trust and common ground Efficient, flexible Party control and self-determination

o Critics: No rules causes abuse Veils public implications, precedent, review Not efficient Pressures parties to settle instead of resolve a question of law

o Mandatory participation?o Judicial enforcement of contracts mandating ADRo ADR and public sector

o WHY ADR?o Ongoing relationshipo Simple settlement

o WHY NOT?o Civil rights precedento

o Owen Fisk: Against Settlement:o Precedent is the capital of our litigation, guides future behavior and vindicates individual partieso Increased out of court decisions deprives our system of precident

Managerial Judging:- Judges increasingly being seen as “managers,” dealing with heavy dockets and complex cases, using their role as a judge to

promote settlement, directing cases to ADR, and employing assistants and managers to speed and lighten the process- Schwarzer argued that judges had authority from Rule 16 to use discretion to intervene “sua ponte” in pre-trial proceedings,

and should require cases be fully prepared before trial. Active judicial participation in the management of civil litigation is necessary.

- Resnik says no data shows that judicial management was any faster, led to more settlements, was cheaper overall, and that the power and discretion used by some judges under Rule 16 open the door for abuse, unreviewable actions, bias, and an emphasis on efficiency over actual justice.

- Subrin argued that judges should try to just keep mediation as an option, and decide pre-trial motions expeditiously as to show preliminary views of the case that could shape the results of mediation.

- Minow tried to rescue idea of managerial judging.

o Bifurcation (Liability & Damages) & Trifurcation (causation, liability, damages)o Distinct from separation (which separates issues or parties)o In re Bendectin Litigation (anti-nausea drug causing birth defects, judge bifurcated and causation found for D.

Deformed children not allowed in causation trial) [535]. P could have a more convincing emotional case if deformed children were allowed in a single trail.


37o Emotion bad?

P’s evidence might interact (sheer weight of injured parties influence the probability that the drug was responsible)

o Interaction of such evidence is bad. Big vs. small cases (ie class action vs. single)
