Civ Pro I - Geyh (Fall 1999) (Provided by ILJ)

8/2/2019 Civ Pro I - Geyh (Fall 1999) (Provided by ILJ)

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Tom GoodwinGeyh Fall 1999

Civil Procedure

PLEADING

42 U.S.C. Section 1983

Civil rights action with the following two elements:1) D is acting under color of state law2) D deprived P of his rights under federal law (due process, unreasonable search and seizure, etc.)

2 One Form of Action, a Civil Action

3 Commencement of Action

Civil Action commenced by filing Complaint w/the court

4m Summons & Complaint must be served within 120 days after filing suit

7 Pleadings Allowed, Forms of Motions

a) Pleadings 3 types only: Complaint; Answer; Reply to Counterclaim or Cross-claimb) Motions Application to court for order shall be made by motion which, unless made during hearing/trial, shall be 1) Inwriting; state grounds with particularity; set forth relief sought and 2) must have captions same as pleadings

8(a) Claims for Relief Complaint SHALL contain1) Short, plain statement ofJurisdiction2) Short, plain statement of Claim showingPleader is Entitled to Relief3)Demand for Judgmentfor Relief Requested*More complicated the fact pattern, the more complicated short plain statement must be*Violation subject to 12(b) motions*Cant just state legal conclusions

*May amend a claim for relief to fix prob raised by 12b defense

8(b) Defenses; Forms of Denials

*In short, plain terms, Admit or Deny Averments of Complaint

*If you dont know I am w/o knowledge or information sufficient to form a belief as to the truth of an averment,hemay so state and this has the effect of a denial.*If more than one allegation in paragraph, indicate which admitted/which denied, if not all the same*Insufficient Info/Knowledge to admit/deny has effect of Denial; Deemed admission if matter is obviously one to whichD has knowledge/info (R11 probs)*If the knowledge or info is within your control, cant plead insufficient knowledge*General Denial allowed only if everything is wrong (jurisdiction, too)

8(c) AFFIRMATIVE DEFENSES Must Set forth in responsive pleading (8c lists 19 defenses)

Assumption of risk, Contrib. Neg, duress, fraud, illegality, res judicata, statute of frauds, stat of limitations, and any othermatter constituting an avoidance or affirmative defense.

8(d) EFFECT OF FAILURE TO DENY

If responsive pleading required Admission

No responsive pleading required Denied or Avoided

8(e) Pleading to be Concise & Direct; Consistency (Alternative claims)

1) AvermentsSIMPLE, CONCISE, & DIRECT2) Claims/Defenses may be made in theAlternative regardless of consistency; Only one needs to be sufficient. (But

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Cant recover under both)*Alternative pleading is not permitted when in the nature of things the pleader must know which of the inconsistentaverments is true and which is false

Note: R11 applies if pleader must know which averment is true.

8(f) Construction of Pleadings. All pleadings shall be so construed as to do substantial justice.

9(b) Fraud, Mistake, Condition of Mind Special Pleading

*In Averments ofFraud or Mistake, circumstances SHALL be stated withParticularity*Malice, Intent, Knowledge, & Other Conditions of Mind MAY be averred Generally

Note: *12(b)(6) is the appropriate Defensive Move* Judicially expanded to include cases such as Civil Rights Actions (Section 1983), However, Leatherman rules out thepossibility of 9(b) applying to complaints alleging municipal liability under 1983

* Why Fraud/Mistake? 1) Damage to Reputation 2) Complexity 3) In Terrorem threat

10 FORM OF PLEADINGS

a) Caption; Names of Parties Caption w/Name of Court, Title of the Action (Parties); FileNumber; Designation of 7(a) name of the pleadingb) Paragraphs; Separate Statements

- all claims/defenses in Numbered paragraphs; limited as practicable to statement of a single set of circumstances (P

avers, D responds to each by #)- Claims/Defenses (Other than denials) Founded on Separate Transactions/Occurrences stated inSeparate Countsc) Adoption by Reference; Exhibits Statements in Pleading adopted by reference in otherpleadings/motions; exhibits are part of pleading for all purposes.

11 Signing of Pleadings, Motions, & Other Papers; Representations to Court; Sanctions

* R11 Sanctions may be a factor in any part of the trial process except Discovery11(a) Pleadings, Motions, Papers Must beSigned11(b) By Presenting (signing/filing/submitting/arguing) to court, presentercertifies:

- To Best of his Knowledge/Info/Belief- Formed after Inquiry Reasonable under the Circumstances, that:

*Expected/Required to investigate before filing if time

1) No Improper Use: Harass, cause unnecessary delay, or needless increase in cost of litigation)2) No Frivolous Claims: The claims, defenses, and other legal contentions are warranted by existing law or by anonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;3) Evidentiary Support: The allegations and other factual contentions have evidentiary support or, if specifically soidentified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery;4)Denials: Denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonablybased on a lack of information or belief.* Thus, D must be careful in the answer11(c) if 11b Violated, ct MAY impose sanctions (discretionary):

Who? Atty, firm, parties violating or causing violation (P or D)How? 1) Motion by Opposing Party /Subject to 21 day Withdrawal/Correction

2) Sua Sponte by Judge/ Show Cause Order by CourtHow Much?

* Non-Monetary (Slap on Wrist) &/or Monetary (Fines/Atty Fee)* Limit Goal is Deterrence

* NO & Sanctions for (b)(2) (Frivolous Claims) against a Represented Party Only against the Attorney* No Sua Sponte After Vol. Dismissal or Settlement

11(d) Inapplicable to Discovery

12(b) Defenses and Objections - Answerw/in 20 days after service of complaint.Every Defense asserted in Responsive Pleading if one is required, except following MAY be made by motion:

1) Lack of Subject Matter Jurisdiction2) Lack of Personal Jurisdiction

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3) Venue (Improper)4) Insufficient Process5) Insufficient Service of Process6) Failure to State a Claim upon which relief can be granted

7) Failure to join an indispensable party (R19)

12(b)(6) Motion to Dismiss for Failure to State a Claim upon which relief can be granted

*Assume all allegations are True Do they Satisfy ALL elements of Substantive Law?*Must state facts/elements, not legal conclusions, to provide everyone w/clear picture of what happened & give reasonpleader should be entitled to relief.*Must make Allegations for Each Element or Defense

*Alters time restraints: Denied = 10 days to answer; Granted = possibility of amending*A complaint should not be dismissed for failure to state a claim unless it appears beyond bout that the P can proveno set of facts in support of his claim that would entitle him to relief.

12(c) MOTION FOR JUDGMENT ON THE PLEADINGS

* After Pleadings closed; but w/in such time so as not to delay trial* Tests sufficiency (facial validity) of all the pleadings raised by P or D* This is basically a Plaintiffs motion, b/c it allows him to test the sufficiency of the Answer for the first time.* If matters outside the pleadings brought in treated as summary judgment R56

NOTE: D can raise 12(b)(6) or 12(b)(7) defenses in the 12(c) Motion as long as you have not raised them before.The point of 12(c) is to provide such an opportunity if needed.

12(e) Motion for More Definite Statement

*Must be So vague or ambiguous that a party cannot reasonably be reqd to frame a Responsive Pleading beforegranted by the court

*Points out defects & details desired*Cant use 12(e) to set up a 12(b)(6), if 12(b)(6) available at that time (Thus, cant just use 12(e) b/c it would be niceto have some more info.)* Fairly high bar to pass*If Motion Granted & Order Not Obeyed w/in 10 days after notice of the order (or time fixed by court), Ct may strikethe pleading or make such order as it deems just.

12(f) Motion to Strike*Court may strike any redundant, immaterial, impertinent, or scandalous matter if too much unnecessary material.*Court may also strike any insufficient defense (P moves after D answers)*Can be made in the answer

12(g) Consolidation of Defenses in Motion

*Consolidate all(then available)pre-answer defenses/objections in ONEmotion*Not limited to 12(b) defenses

12(h) Waiver or Preservation of Certain Defenses

1) Least Favored Defenses:

12(b)(2) - (5)A) If Pre-Answer Motion made, ones omitted are Waived FOREVER

B) No Pre-Answer Motion, May Put it in the ANSWER.No Pre-Answer Motion, Not in Answer, Put in AMENDED ANSWER (must be w/.in 20 days after answer)

2) Favored Defenses

12(b)(6) Failure to State a claim upon which relief can be granted12(b)(7) Failure to join an indispensable party (R19)

*If Pre-Answer, Must Consolidate: BUT NOT waived*Even if Pre-Answer, can put it in the Answer, other pleading, Motion for Judgment on the Pleading 12(c),or trial on the merits

3) Most Favored Defense: 12(b)(1) Subject Matter Jurisdiction*Can assert Anytime; formality reduced, no motion necessary, just suggestion

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*Can even use 12(b)(1) on appeal or second pre-answer motion

15 AMENDED AND SUPPLEMENTAL PLEADINGS

(a) Amendments Party may leave to amend once as a matter of course at any time before a responsive pleading isserved or

w/in 20 days after it is served. After that time period,Leave to Amend

an AnswerFREELY GIVEN

when JusticeRequired, But, Wont give leave to amend IF:1) Prejudice (undue) CAUSED by Other Partys Problems2) Negligence & Delay on part of party wanting to amend.

(b) Amendments to Conform to Evidence At Trial; Automatic Amendment when new issues/claims raised andOpposing

Party Fails to Object*May literally amend the pleading, but Not Necessary b/c it is treated as if amended*If objection that issue is outside the pleading, may amend (shall do so freely) when presentation of the merits subservedthereby & No prejudice

(c) Relation Back of Amendments

[Amendment (asserting a new theory for a c/a) can be done after S/L b/c it is dated the same date of the original complaint,circumventing the S/L]Relates Back When:

(1) Applicable Statute Says So; or(2) Claim Arose out of Same Conduct/Transaction/Occurrence; or(3) Party Change Where a/b Satisfied w/in 4(m) Time Period (120 days).

(a) New Party So notified as not to be prejudiced in maintaining defense; and(b) New Party knew or should have known that, but for mistake, Action would have been brought

From class Notes:

FRCP 15 Relation Back of Amendments

Re: New Claims

1) Relation Back permitted by Statute of Limitation Law OR2) Claim arose out of same conduct/transaction/occurrence as original claim

Re: New Parties

1) Claim arose out of same conduct/transaction/occurrence as original claim AND2) New party has received notice within FRCP 4(m) period of 120 days AND3) New party knew/should have known that but for mistaken ID, he would have been original

party

17 PARTIES P & D; CAPACITY

(a) REAL PARTY IN INTEREST

*Every action SHALL be prosecuted in the name of the real party in interest.*Action Must be brought by a person who possesses the right to enforce the claim who has a significant interest in thelitigation.*Party may sue in there own name w/o joining the party for whose benefit the action is brought Need not have beneficialinterest, only sufficient interest in outcome.*A real Party may sue in the name of another Real Party w/out joinderNote: Modern Purpose: If BOTH are Real Parties in Interest, only ONE suit. Has the effect of Res Judicata nosubsequent actions.

(b) Capacity to sue/be sued Determined by the substantive law of the domicile(c) Infants or Incompetent Persons rep/next friend/guardian ad litem

55 (Entry of) DEFAULT

(a) Entry When a party against whom a judgment for affirmative relief is sought hasfailed to pleador otherwisedefend as provided by the FRCP and that fact is made to appear by affidavit or otherwise, the clerk shall enter thepartys default.

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(b) Judgmentby default entered (puts you to R60 then):1) By the Clerk if damages can be computated.2) By the Courtin all other instances.

(c) Setting Aside Entry ofDefault For Good Cause Shown (not willful or culpable)

3 Factors Determining Good Cause Shown of 55(c) Motion (Shepard Claims) [the factors areweighed]

1) Prejudice to P = must be sufficient (evidence gone, witness unavailable)2) Meritorious Defense = Ds defense good at law; Facially Valid3) Ds culpable Conduct led to Default

*Culpable conduct is usually something worse than mere negligence. A willful disregard for the rules of civ pro hasgenerally been requiredEntry of Default: Notation by Clerk that time has passedR55Standard very low, almost any reason will do

(d) Ps, Counterclaimants, Cross-Claimants: R55 applies to Ps, or counterclaims, or cross-claimants

60 RELIEF FROM JUDGMENT OR ORDER (Much More difficult that 55(c) motion)a) Clerical Mistake Court may correct at any time on own initiative or motion of partyb) On motion, the ct may relieve a party from final judgment, order, or proceeding for:

1)Mistake, Inadvertence, surprise, or excusable neglect;

*mistake will usually only work from a default judgment;2)Newly Discovered Evidence which could not have been discovered by due diligence in time to move for New Trial3) Fraud, Misrepresentation, misconductof an adverse party4)Judgment Void5) Judgment has been satisfied, released, or discharged, or prior jdgmnt vacated6) any other reason justifying relief from the judgment.*1,2,3 NOT More than ONE YEAR after Judgment entered

41 DISMISSAL OF ACTIONS

(a) VOLUNTARY DISMISSAL

1) By P; W/o order of Court

i) By filing notice of dismissal BEFORE ANSWERor Mot. For Sum Jdgmt** To facilitate Vol Dismissal, but limit to early stage of proceedings

(ii) By filing stipulation of dismissal signed by all parties (ANY TIME)** Dont want to force P to litigate something he doesnt want to.Prejudice: Dismissal has the effect of an adjudication on the Merits (W/Prejudice)+ The first time w/o Prej; thereafter, W/Prej+ Always the right to dismiss W/Prejudice+ W/o Prej After Answer Requires Stipulation or Court Order

2) By Order of the Court; Motion to Dismiss and Notice of MotionIf counterclaim already filed, P cannot dismiss unless it can remain pending for independent adjudication. Rules forPrejudice same as before.

(b) Involuntary Dismissal (Motion by D)

(c) Dismissal of Counter-, Cross-, or Third-Party Claim - Same applies, but w/o order of the court, must be

before responsive pleading or, if none, the intro. of ev. at trial.

(d) Cost of Previously Dismissed Action Judge may order P to pay cost to D if previouslydismissed action is brought back into court.

65 INJUNCTIONS

(a) Preliminary Injunctions

1) Notice must be given2) Hearing may be consolidated with Trial on the Merits

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Note: Permanent means not contingent upon further findings on the Merits Appropriate only to maintain the statusquo; Continuing practice will cause injury/harm to P

Four Part Test for Prelim Injunctions:

1) Likelihood of success on Merits2) Irreparable Harm (to P if Injunction Denied)3) Balance of Hardships (Harm to P if Denied vs. Harm to D if granted) govt interest4) Public Policy/Interest compare likelihood of success w/relative harm by granting it

Note: The four parts are balanced against each other

(b) Temporary Restraining Order (TRO); Notice; Duration

Granted without notice if:1) Specific facts in affidavit or verified complaint clearly show immediate and irreparable jury/loss/damage would result toapplicant b/f adverse party could be heard; AND2) Applicants attorney certifies to court the efforts made to notify and reasons why notice shouldnt be required*Effective 10 days to protect Claimant until Prelim. Injunction hearing*If granted w/o notice, prelim injunction hearing shall be set

Note: Problem so imminent you cant wait 10 days.

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MULTI-PARTY/CLAIM LITIGATION

13 COUNTERCLAIMS (DP)(a) COMPULSORY

*Must be asserted or waived forever*Same Transaction/Occurrence or related series of T/O as original claim

*T/O = logical relationship b/w original claim and counterclaim*Also consider Same Evidence std or Issues or Law & Fact*Supplemental Jurisdiction Doesnt Req. Independent basis for Fed Juris

*Automatic Subject Matter Juris based on T/O if Compulsory*Tests( From Wigglesworth Notes

1) Is there any logical relation b/t the claim and the counterclaim2) will substantially the same evidence support or refute Ps claim as well as Ds counterclaim3) Are the issue of fact and law raised by the claim and counterclaim largely the same4) Would res judicata bar a subsequent suit on Ds claim absent the compulsory counterclaim rule

(b) PERMISSIVE

*Unrelated to main/original claim*Dont have to assert, but MAY

*If counterclaim is unconnected w/ the T/O of which the Primary Claim arose, it is permissive, and independentJurisdictional Grounds are required (i.e. Diversity, Fed. Q) (Must have subject matter jurisdiction)

13(g) CROSS-CLAIM (DD; PP)*May cross if claim arises out ofsame transaction/occurrence, or relates to any property that is subject matter of theoriginal claim (logical relationship)*May claim that party against who cross-claim is asserted is or may be liable to cross-claimant for part or all of aclaim in action asserted against them.*All Cross-claims are PERMISSIVE (MAY assert)*Supplemental Jurisdiction applies; may ride coattails of original claim

14(a) IMPLEADER (3rd Party Claims)

If D is liable to P, then third party D is liable to third party P

*Impleader is proper ONLY if the 3rd-party D is or may be liable to the 3 rd party P for all or part of Ps claim againstthe 3rd party P (Derivative Liability).*The 3rd-party claim need not be based on the same theory as the main claim, and impleader is proper even though the3rd-party Ds liability is not automatically established once the 3rd-party Ps liability to original P determined.*Purpose of R14 is to accomplish in one proceeding the adjudication of the rights of all persons concerned in thecontroversy and to prevent the necessity of trying several related claims in different suits Liberally construed. Not if Prejudice.*Must have satisfy jurisdiction also*The original P may assert any claims against the third party D arising out of the T/O that is the subject matter of thePs claim against the third-party P.Timetable: No leave if w/in 10 days after serving original answer; after, move to leave to amend*Add a New Party Must get Personal Jurisdiction over them

18(a) JOINDER OF CLAIMS Allows a party to join as many claims as a party has against an opposing party do not

have to be related*So, for instances, after impleading, original D can assert any other claims.*Rule: Once a party has made a claim against some other party, he may then make any other claim he wishes againstthat party.

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19 COMPULSORY JOINDER OF PARTIES (Met by 12(b)(7) Motion)

*** Joint Tortfeasors are not compulsory can get relief from one.

*Two Categories:

1) Necessary Parties: Parties whose joinder, if possible, is required by R19(a)2) Indispensable Parties: Parties who are so vital that if their joinder is impossible the whole action must bedropped.

Necessary: R19 first describes those parties who must be joined if 1) service can be validly made on them, and 2) theirjoinder would not destroy diversity. These are necessary parties. To be a necessary party, a person must meet one ofthe following two tests:

1) Incomplete relief: in the persons absence complete relief cannot be accorded among those already parties.(19(a)(1))2) Impaired interest: A judgment in the persons absence will either 1) as a practical matter impair an interestthe person has, or 2) impose on some of the existing parties double, multiple, or otherwise inconsistentobligations. (19(a)(2)).

Indispensable: Assuming that the absentee meets the test of necessary party, the court then determines whether thatabsentee is in fact indispensable so vital that the action should be dropped if joinder is not possible -- by consideringthe following additional factors, all laid out in R19(b):

a) Prejudice: The extent of prejudice to the absentee, or to those already parties;

b) Framing of judgment: The possibility of framing the judgment so as to mitigate such prejudice;c) Adequacy of Remedy: the adequacy of the remedy that can be granted in his absence;d) Result of dismissal: whether the P will have an adequate remedy if the action is dismissed.

Q1: Is the Joinder necessary? If neither 19(a)(1) or (a)(2) is satisfied the answer is yes19(a)(1): complete relief cant be accorded among those already parties19(a)(2) The absentee claims an interest relating to the subject of the action and disposition w/o the absentee may:

a) 19a2i practically impede the absentees ability to protect his interestb) 19a2ii subject persons already parties to risk of multiple or inconsistent liability

Q2: If Joinder Necessary, is it Feasible?

1: service of process problem. If yes unfeasible

2: diversity problem. If yes unfeasible

3: venue problem + objection raised by absentee. If yes unfeasible

Q3: If Joinder Necessary, but NOT Feasible, is it INDISPENSABLE?

1a: prejudice to those already parties if case proceeds w/o absentee1b: prejudice to absentee if case proceeds w/o absentee2: extent to which court order can avoid prejudice3: will judgment w/o absentee be adequate (i.e. complete, consistent, and efficient)4: whether P will have adequate remedy if action is dismissed

20 (a) PERMISSIVE JOINDER OF PARTIES

*In Discussion, discuss whether it is an efficient trial package

1) Multiple Ps may join in one suit against D if Ps assert join/several/alternative right to relief.A)Arising out of Same T/O or series of related T/O; and

B)Any Common Q of Law/Fact2) P may Join Multiple Ds if P asserts against them a Joint/Several/Alternative Right to Relief

A) Arising out of same T/O or series of T/O; andB) Any Common Q of Law/Fact

(b) SEPARATE TRIALS Court may order to prevent embarrassment/delay/expense by inclusion of a party prevent

delay/prejudice If not claim b/w those parties

QWill a single trial of all claims against all Ds prejudice some of the Ds?

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21 MISJOINDER/NON-JOINDER

INTERPLEADER (22/1335) Procedural device which allows a party to give a thing which is claimed by multiple parties tothe court and allows the court to divide it up.

-The BASIC REQUIREMENT: One Stake (i.e. Limited Fund) usually $$ or insurance obligation, but can be ANYprotectable property interest.-Party who is or may be exposed to double/multiple liability may Force them to argue out their claims among themselvesbefore coming to sue him. May still assert alternatively that he Does Not Owe Anyone-May file as a P in a new action (anticipating the claims against him), or as a D (in a counter/cross-claim) in action alreadyfiled against him.-Court May enjoin (prohibit) all claimants from starting or continuing any other action (St/Fed) that would affect theproperty-Prevents Party from being made to pay same claim twice-Only bars suit against the Stakeholder/Insurer, NOT the INSURED

24 INTERVENTION Procedural tool allowing parties who were not parties in the original suit to participate inthe litigation

w/o being invited.(a) AS A MATTER OF RIGHT (intervention SHALL be granted): Interest in subject matter impaired due to lackof adequate

representation by the existing partiesUpon Timely Application:(1) Statute confers unconditional right (rarity); or(2) 3 part test

1) Applicant claims an interest relating to the property or transaction which is the subject of the action.2) Practical Impairment: The applicant must demonstrate that the lawsuit carries a possibility that of detriment tohim serious enough to entitle him to an opportunity to influence the outcome in ways that only a litigant can.3) Not adequately represented: The applicant must demonstrate a substantial possibility that none of the presentparties will adequately represent his interest.

(b) PERMISSIVE INTERVENTION (intervention MAY be granted)

1) Timely Application2) Applicants Claim/Defense & Main Action have a Common Q of Law/Fact3) Intervention Wont Unduly Delay/Prejudice Adjudication of Rights of Parties

NOTES:* Purely Discretionary to District Court, Even if Requirements otherwise met. Reviewed Only for Clear Abuse ofDiscretion As in NOPS v. United Gas* District Judge also has the power to limit an intervenors rights in the suit* Proper to consider: a) whether intervenors interests are adequately represented by the other parties and b) whether theywill significantly contribute to full development of the underlying factual issues in the suit* Intervenor under (a) or (b) is bound by all orders prior to their intervention in the suit.* Courts ruling is immediately appealable.

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Class Actions

23 CLASS ACTION Must Meet All Requirements of 23(a) & ONE from 23(b) to certify the class*Handful of People represent entire class to make litigation manageable/efficient*No Preliminary Inquiry upon the merits for purpose of certifying a class (Eisen)*Can be Amended/Revised throughout course of litigation

*May certify a sub-class or decertify.* May use a class action to determine one overarching issue, as in the case of the state of the art defense in Jenkins.

(a) THRESHOLD REQUIREMENTS Must Have All:1) Numerosity So Many that Joinder of all Impracticable

* The proper focus is not on numbers alone, but on whether joinder of all members is practicable in view of thenumerosity of the class and all other factors.

2) Commonality Common Qs of Law or Fact (The focus is on the class as a shole)*Although there need not be identity of claims, there must be common elements of law or fact such that the classaction would be an economical way of prosecuting and defending claims.*The threshold of this factor is not high. The rule requires only that resolution of the common questions affect all or asubstantial number of the class members (Jenkins).

3) Typicality Claim/Defense of Rep typical to the other members of the class (Focus on the rep. Party).*Doesnt have to be identical, only that Class Rep is part of a class that possess same interest & suffer same injury asthe class members.Ask: Was the injury/violation to the rep atypical from the rest of the class?

4) Adequacy of Representation - Rep must have 1) common interests w/the unnamed members of the class and 2) it appearsRep will vigorously prosecute the interests of the class through qualified counsel

(b) ADDITIONAL REQUIREMENTS Must meet ONE of the following:1) Separate Actions Would Create Risk of

a) Inconsistent Adjudications Establishing Incompatible Standards of Conduct forClass of Opponents; ORb) Adjudication of Individual Members Would as a Practical Matter beDispositive forNon-Class Members or

SubstantiallyImpair Their Ability to Protect Their Interests* Impairment of interests or limited funds class focusing on interests of the absent class members may be appropriate where claims of all Ps exceed the assets of D and to allow any group of individuals tobe fully compensated would impair the rights of those not in court

OR2) Where Injunctive/Declaratory Relief is at issue, Class Opponent Acts in Ways applying generally to class (Inother

words, based on grounds which have general applicability to the class)*May involve $, but injunctive relief must be predominate relief sought.

OR

3) Catch-ALLa) Common Qs of Law/Fact Predominate (Significant part of Litigation)

*State of the Art defense in Jenkins evidence in each case was identical or virtually so; doesnt matterthat D might not raise it in all claims if pursued individually.

AND

b) Class Action Superior to Other Methods; Factors- Interest of Class Members in Controlling Their Cases

- Pre-Existing Litigation- Desirability of Consolidation- Management Problems (i.e. Too Many People/different claims)

Note: Class members have the opportunity to opt-out of the proceedings and not to be bound by the judgment Individual noticemust be sent to all class members whose names and addresses may be ascertained through reasonable effort (Eisen).

If someone close outcome, discuss the weighing of the factors for and against using Class Action

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DISCLOSURE / DISCOVERY

16 PRE-TRIAL CONFERENCE

After 26(f) meeting of both parties; present order, judge just signs it if he wants to grant it.a) Permissive Judge discretion to order pretrial conference

One or More Objectives:1) Expedite Action

2) Establish Early Control of Case3) Discourage Wasteful Pretrial Activity4) Improve Quality of Trial5) Facilitate settlement

b) Scheduling and Planning: After receiving the report from the parties under R26(f), or after consulting w/theattorneys for

the parties and any unrepresented parties by a scheduling conference, telephone, mail, or other suitable means, enter ascheduling order that limits the time:

Mandatory

1) for party joinder and amendments to pleadings2) to file motions3) to complete discoveryOptional

4) Modification of time table for disclosure/discovery5) date(s) for conferences before trial, a final pretrial conference, and trial6) any other matters appropriate in the circumstances of the case.

When? As soon as practicable, and always within 90 days after the appearance of a D and within 120 days after thecomplaint has been served on the D. A schedule shall not be modified except upon a showing of good cause and by leaveof the district judge or, when authorized by local rule, by a magistrate judge.

c) Subjects for Consideration at Pretrial Conferences

d) Final Pretrial Conference: Any final pretrial conference shall be held as close to the time of trial as reasonableunder the

circumstances. The participants at any such conference shall formulate a plan for trial, including a program for facilitatingthe admission of evidence. The conference shall be attended by at least one of the attorneys who will conduct the trial foreach of the parties and by any unrepresented parties.

f) SANCTIONS If a party or partys attorney fails to obey a scheduling or pretrial order, or if no appearance ismade on

behalf of a party at a scheduling or pretrial conference, or if a party or partys attorney is substantially unprepared toparticipate in the conference, or if a party or partys attorney fails to participate in good faith, the judge, upon motion or thejudges own initiative, may make such orders with regard thereto as are just, and among others any of the orders providedin R 37(b)(2)(B), (C), or (D). In lieu of or in addition to any other sanction, the judge shall require the party or the attorneyrepresenting the party or both to pay the reasonable expenses incurred because of any noncompliance with this rule,including attorneys fees, unless the judge finds that the noncompliance was substantially justified or that othercircumstances make an award of expenses unjust.

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DISCLOSURE (Automatic & before trial) 26(a)

What?

26(a)(1) INITIAL DISCLOSURE except as otherwise provided, a party shall provide automatically:- parties must produce A-D w/in 10 days after 26(f) meeting(A) ID Individuals w/discoverable info & subject of info

- only applicable to disputed facts alleged w/particularity in the pleadings(B) Copy or description by category & location of docs and tangible things in possession, custody, or control ofthe party- only applicable to disputed facts alleged w/particularity in the pleadings(C) Computation of Damages material/ related docs(D) Insurance Agreements (D covered?, P subrogated?)

26(a)(3) PRETRIAL DISCLOSURES (w/in 30 days of trial)- ID Witnesses who may be called- Designate Deposition Witnesses- ID exhibits/documents

Who? Both parties under a disclosure obligation

When?

a) 26(a)(1): except to the extent otherwise stipulated or directed by order or local rule.b) 26(a)(1): preliminary disclosures: within 10 days of 26(f) meeting unless stipulated otherwisec) 26(a)(1): w/o waiting a discovery requestd) 26(a)(3) pretrial disclosures must be made within 30 days of trial

How?

a) 26(a)(4) dramatic departure from past practice; all 26a disclosures shall be made in writing, signed served & filed w/ctb) 26(f) meeting of the parties

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TYPES OF DISCOVERY DEVICES

Depositions -- R27, 30, 31 Interrogatories R33 Document/Evidence Requests R34 / R45 (subpoenas)Medical Exams R35 Request for Admissions R36

Depositions

What: Meeting with generally only the witness, lawyers, and a court reporter present.Usually a judge is not present.

Who: Either parties or non-parties..one of the few disc. devices that can get non-partiesHowever, you need to subpoena non-parties because w/o it they are not required to show up.

Parties are required to show up (if they dont R37 sanctions)

When: Usually only after R26f pre-trial conferenceR 27 is the only exception to this. Through R27, you can get a deposition early on (even before complaint by filing apetition with the court. The main advantage of this is if there is a witness who you might lose before you can take anormal deposition (i.e. dying of cancer).

How: You can have up to 10 depositions before getting court permission

You can depose a person multiple times (w/ court permission)The attorneys are very limited in they ways they can prevent their witnesses from answering questions. There are 3main ways: 1) if the information is privileged; 2) if there is a court order protecting the information; and 3) you aregoing to stop immediately and go and get a protective order. Generally, if there are ordinary objections, they may benoted by the court reporter, but the witness must answer the question

Why: Gathering information tool.The counsel defending hardly ever cross-examines b/c he/she doesnt want to disclose information that he/she can get at anothertime in secret. Problem with Depositions: Expensive as hell.

R31 written depositions are rarely used. They can also be used for non-parties.The counsel writes down a series of questions, and then under oath, the witness responds orally.This is good for recovery of basic info, but you cannot tailor your questions as you go as you can in oral depositions.

Interrogatories R33

What: These are written questions that are filtered through the counsel.Who: Parties Only!!How: 25 per party max w/o leave of courtWhy: gives good basic informationbut make sure to ask very specific information or will likely get poor

responses/answers.

Document/Evidence Requests R34 / R45

Note: this can also be used to inspect premisesWhat: This is a very valuable tool. Ordinarily doesnt include creating material.Who: Technically, only parties. However, you an get documents/evidence from non-parties by using a

R45 + R30 and requesting that the non-parties bring the evidence with them to the deposition.

Medical Exams R35Medical exams you need to get court permissions, and sometimes are had to get. The health has to be at issue. If P is seekingpersonal injury damages, then Ps health is at issue. However, the health of the D is generally not at issue.

Request for Admissions R36

What: These are questions in a Yes/No Admit/Deny format.Who: Parties onlyWhen: after 26f pre-trial conference

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How: For this tool, you do not need to file a motion to compel if the other party doesnt comply. The other party mustanswer within 30 days. If they dont, the question is deemed admitted.

SCOPE AND LIMITATIONS OF DISCOVERY

26(b)(1) SCOPE Applies to any relevant, unprivileged matter, (Very Broad) info does no need to beadmissible at trial if it is reasonably calculated to lead to admissible evidence*Davis v. Ross: Discovery of Net Worth of D is not discoverable until after P wins.

26(b)(2) LIMITS Courts MAY limit Discovery, when:i. Discovery sought is unreasonably cumulative or duplicative, or obtainable from a more convenient, less

burdensome, or less expensive source.ii. Discovering party has and ample opportunity by discovery to obtain the info sought.iii.Burden/Expense of discovery outweighs Potential Benefits .. Factors to Consider:

a) Needs of Case d) Importance of the issues at stakeb) Amt in Controversy e) Importance of proposed Discovery c) Parties Resources

*Kozlowski: The party may not excuse itself from compliance with R34 (Request to Produce documents) byutilizing a system of record-keeping which conceals rather than discloses relevant records, or makes it unduly difficultto identify or locate them, thus rendering the production of documents an excessively burdensome and costlyexpedition.

26(c) PROTECTIVE ORDERS

Upon motion by a party or by the person from whom discovery is sought, accompanied by a certification that themovant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the disputew/o ct action, andfor good cause shown, the ct may make any order which justice requires toprotecta party or person

from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:

1) That the disclosure or discovery not be had;2) that the disclosure or discovery may be had only on specified terms and conditions, including a designation of timeor place;3) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery4) that certain matters not be inquired into, or that the scope of the disclosure or discovery be limited to certain matters5) that discovery be conducted with no one present except persons designated by the court;

6)that a deposition, after being sealed, be opene3d only by order of the court;7) that a trade secretor other confidential research, development, or commercial information not be revealed only in adesignated way; and8) that the parties simultaneously file specified documents or information enclosed in sealed envelopes to be openedas directed by the court.

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PRIVILEGED & PROTECTED INFORMATION

26(b)(3) TRIAL PREPARATION: MATERIALS (Work Product Immunity)

Threshold Requirements: Applies to1) Docs and tangible things prepared in anticipation of litigation

* Must be in anticipation of specific litigation, cant just be to protect themselves generally2) By Party or Party Rep (not just Parties)

A) Attorney Thought process undiscoverableB) Ordinary work product discoverable If:

1) substantial need; and2) substantial equivalent of the materials unavailable w/o undue hardship

C) Party/Witness statement freely discoverable to the party/witness

Notes: If new/different trial down the road, and want discovery of old work-product, generally not discoverableCrime-Fraud exception: If lawyer is facilitating the crime/fraud, then work-product immunity is waived. Normaldiscussion of crime/fraud doesnt count.

Work Product rule derived from Hickman before codification in R26(b)(3)

Differences between 26(b)(3) & HickmanWork Product Hickman

What: Docs Only Oral & DocsBy Who: By/For Party/Lawyer Generated by the AttyWhen: Substantial need/unavailability Only in Cases of Fraud/Atty misconduct

ATTORNEY-CLIENT Privilege Upjohn Co. v. US

*Protects communication between lawyer & client (So it works both directions)*Doesnt have to be w/ litigation, it covers the whole universe of coverage, but the attorney must be in his capacity asattorney. It doesnt have to be for $$$ though.*Corporations as the Client: Not just the control group of the corporation is included. All the employees arepart of the client*This privilege only protects disclosure of communications; it does not protect disclosure of the underlying facts by

those who communicated with the attorney:

The widely-cited statement of the a-c privilege requirements are1) Where legal advice of any kind is sought2) from a professional legal adviser in his capacity as such,3) the communications relating to that purpose,4) made in confidence5) by the client,6) are at his instance permanently protected7) from disclosure by himself or by the legal adviser8) except the protection be waived

Brief Comparison of Work-Product Immunity and Attorney-Client Privilege:

Litigation:A-C: Doesnt have to be with litigationW-P: Does have to be with litigation

Parties to the communications:A-C: Only communications b/w lawyer and clientW-P: Isnt only communications w/ lawyer

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EXPERTS

26(a)(2) DISCLOSURE OF EXPERT TESTIMONY

(A) ID experts who may be used at trial(B) Written & signed reports from those from (A) who fit one of the three categories below:

- retained experts

- specially employed- employee who regularly gives expert testimony(C) Timetable

4 General Types of Experts for Discovery Purposes.

Testifying Experts:

1) Experts who will Testify 26(b)(4)(A)

Non-Testifying Experts:

2) Experts specially retained in anticipation of litigation who will not testify 26(b)(4)(B)

*Subject to discovery only in exceptional circumstances.* In Re Shell Oil Refinery found that non-testifying in-house experts may count (case-by-case).

3) Experts not specially retained who produce work-productin anticipation of litigation 26(b)(3)* Per the work-product immunity, substantial needmust be shown.

4) Experts who perform worknot in anticipation of litigation. treated as ordinary witnesses under 26(b)(1)

Note: The Shell view is that there is little difference between #2 and #3 and is not accepted by everyone

Type #1

EXPERTS WHO MAY BE CALLED AT TRIAL26(b)(4)(A) May depose experts whose opinions may be presented at trial.

Type #2

EXPERTS RETAINED/SPECIALLY EMPLOYED, BUT NOT EXPECTED TO TESTIFY AT TRIAL

26(b)(4)(B) DISCOVERY May depose or give interrogatories to discover facts known or opinions held by expert only upon ashowing ofexceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinionson the same subject or other means.*Whether an in-house expert is retained or specially employed must be decided case-by-case.Exceptional circumstances = inability to obtain equivalent information from other sources.

EXPERTS GENERALLY

26(b)(4)(C) EXPERTS FEES unless manifest injustice would result, party seeking discovery must pay the expert a fee forresponding to discovery and other party obtaining info from the expert

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DISCOVERY SANCTIONS

37 DISCOVERY SANCTIONS Disclosure/Discovery Sought, but not forthcoming (a) MOTION TO COMPEL

(2)(A) Failure to Disclose

(2)(B) Failure to Provide Discovery(3) Evasive Responses(4)Expenses & Sanctions

(A) Motion Grantedordisclosure/discovery provided After Motion filed:Court shall require party to pay reasonable expenses incurred in making the motion (including attys fee) tomoving party, Unless substantially justified refusal, no good faith effort, other circumstances making awardof expenses unjust.

(B) Motion Denied Protective Order under 26(c); Court Shall require party to pay unless substantiallyjustified motion.

(C) Granted in Part/Denied in Part Ct MAY enter Protective Order; MAY apportion expenses amongparties.

(b) FAILURE TO COMPLY W/ CT ORDER

(1) District Ct where Deposition is Taken, Contempt of Ct if fails to be sworn in or answer Q as directed(2) Ct in which action is pending, Failure to obey discovery order or 26(f) order, May make orders as are just:

(A) Order facts taken as established by moving party;(B) Prohibit disobedient Party from supporting/opposing claim/defense OR prohibit from introducing matters

into evidence.(C) Strike Pleading or parts of; Stay proceeding until compliance; Dismissing action/Proceeding/Part thereof(D) Contempt of Court (except order to submit to physical exam)

(c) SANCTIONS FOR NON-DISCLOSURE; To admit under R36; to attend deposition; or server interrogatory

answers

(1) W/O Substantial Justification Fails to Disclose

-Not permitted to Use as Evidence Info Not DisclosedAlso May impose reasonable expenses; A,B,C of (b)(2) apply; May inform jury of failure to disclose

(2) Fails to Admit Genuineness of Doc/Truth of Any Matter (36 request for admission) AND party then proves itMay apply to ct to make pay expenses.- Court shall make order unless:

(A) Request Objectionable pursuant to 36(a)(B) Admission sought of NO Substantial Importance(C) Reasonable Grounds to Believe might Prevail(D) Good Reason not to admit

(d) Sanctions for Failure to Provide Discovery(Failure of Party to Attend own Dep or serve answers tointerrogatories or respond to request for inspection)

1) Attend own Dep, OR2) Serve Answers to Interrogatories, OR3) Respond to Request for Inspection -A,B,C of (b)(2) apply- (2)(3) require certification of good faith conferring/effort to confer- Unless Substantial justified, circumstances unjust

Failure to act not excused on grounds Discovery sought objectionable unless pending motion for 26(c)

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26(e) SUPPLEMENTATION OF DISCLOSURES AND RESPONSES

A party who has made a disclosure under 26(a) or responded to a request for discovery with a disclosure or response isunder a duty to supplement or correctthe disclosure or response to include information thereafter acquired if orderedby the ct or in the following circumstances:(1) If the party learns that in some material aspect the information disclosed is incomplete or incorrect and if the

additional or corrective information has not otherwise been made known to the other parties during the discoveryprocess or in writing. W/ respect to testimony of an expert from whom a report is required under 26(a)(2)(B) theduty extends both to info contained in the report and to info provided through a dep of the expert.

(2) A party is under a duty seasonably to amend a prior response to an interrogatory, request for production, orrequest for admission if the party learns that the response is in some material respect incomplete or incorrect andif the additional or corrective info has not otherwise been made known to the other parties during the discoveryprocess or in writing.

26(g) SIGNING DISCLOSURES/DISCOVERY REQ/ST/RESPONSES/OBJECTION

(1) Every Disclosure signed + address = certifies complete & correct to best of knowledge/info/beliefformed after

reasonable inquiry(2) Every Discovery Request/Response/Objection signed + address; Certifies:

A) Consistent w/Rules & warranted by existing law or good faith argument for extension/modification/reversalof existing law

B) Not for Improper use (harass, unnecessary delay or expense)C) Not Unreasonable/Unduly Burdensome or Expensive

If Request NOT signed, STRICKEN unless signed promptly after omission brought to attention No actionuntil signed

(3) If W/O Substantial Justification a Certification is made in Violation of this rule, Court MAY (own initiative ormotion of party) impose sanctions upon certifying party/person/Both reasonable expenses incurred (including Attys Fee) dueto violation

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56 SUMMARY JUDGMENT

* Can be used by either party, but it is primarily a Ds device* The movant may support the motion with affidavits, pleadings, depositions, answers to interrogatories, and admissions onfile and any other materials that present facts that would be admissible at trial.* Hearsay, speculation, conclusions of law, conclusory ultimate facts, and promises that the necessary evidence will be

offered at trial cannot support a motion for SJ, even when presented by an otherwise proper affidavit.When? Anytime after complaint, but usually after Discovery.

If 56(c) burden is met 56(e)Compare 12(b)(6): 12b6 tests facial sufficiency, SJ no longer tests just facial sufficiency

a) Claimant anytime 20 days after filing or service of motion for SJ by adverse party; w/ or w/o affidavits; All or Part ofClaim

b) Defendant At Any Time; w/o affidavitsc) Motion Shall be served at least 10 days b/f hearing; adverse party may then serve opposing affidavits.Burden on Moving Party, Judgment Rendered IF:1) NO Genuine Issue as to any Material Fact2) Moving Party is entitled to a judgment as a Matter of Law (No reasonable jury could find for other party on theevidence produced)

*If state of mind of witness is at issue, SJ should be deniedd) If judgment not rendered on whole case, set forth what facts are deemed to be established, trial proceeds accordinglye) Counter: Adverse Party cant simply rest on the pleadings. Affidavits must set forth specific facts showing there is agenuine issue for trial (If dont, judgment entered against) Note: P need not do anything in response to 56(c) if he doesntthink D has met his 56(c) burden, but generally will produce evidence under 56(e)f) When Affidavits are unavailable, ct may refuse app judgment OR order continuance to permit affidavits to be obtained ordepositions to be taken or discovery to be had (ex. Motion b/f discovery or 26(f) meeting)g) Bad Faith (Sham)Affidavits (delay only, etc.) Ct shall order to pay reasonable expenses and find attorney guilty ofcontempt. Note: Possible Rule 11 ProblemWe dont require evidence to be admissible to counter a motion for SJ. Must be reducable to admissible form.

Possible Responses to the 56(c) Motion:1) Request continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had per 56(f)2) Do nothing, hoping that the movant hasnt met his burden of showing that there is no genuine dispute of materialfact.3) Produce by affidavits or otherwise specific facts showing that there is a genuine issue for trial under 56(e). Theevidence must be admissible as with the initial 56(c) move.

Issues of material factare those that might affect the outcome of the suit under the governing law.A material factis an essential element of claim or defense for purposes of SJ.Agenuine dispute is one which a reasonable jury could resolve against the movant.

3 Standards of 56(c) Burden: Trend is moving down, but not yet to Currie.1) Moore: D must disprove an essential element of Ps case2) Louis: D must point to an absence of evidence as to an essential element of Ps case3) Currie: D must simply move for SJ

Credibility Evidence is on the Table Arnstein compared toDyerNo SJArnstein Was Hard Evidence, so take it to the jury. He heard the statements.

SJDyer No Hard Evidence did not hear the statements & and his affidavit was the only evidence in his favor

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Judgment as a Matter of Law / New Trial

50

(a) Judgment as a Matter of Law (JMOL) (formerly directed verdict)(1) There is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue(2) Motion at any time after opponent has presented his case, but before it goes to the jury

*Defendant Can first move after P finishes*Plaintiff Can first move after D finishes, but before goes to jury** Compare to R56 SJ: May not grant SJ b/c it looks like there is a genuine issue of material fact; give them benefit of thedoubt. Then, after we look at the live testimony/witnesses, may decide the evidence IS insufficient for reasonable jury tofind for a party, & we dont want to give jury the chance to make mistake/find against reqmt of law.Standards:

Galloway Reqd substantial evidence to take it to a Jury. This is a questionable standard, b/c there was some evidenceLavender Complete lack of Probative Evidence b/f granting JMOLTrend is toward relaxing standard for judges ability to take it away from the jury (Galloway)

But, UltimatelyCould a reasonable juror find for the party?Note: R11 may apply if frivolous

(b) RENEWED JMOL (formerly JNOV)

*A movant who has moved for JMOL under 50(a) may renew its request for JMOL by filing a motn no later than 10 daysafter entry of judgment; or alternatively, request a new trial; or join a motn for new trial under R59.

*Options for court

Lavender Standard: Only when there is a no evidentiary basis for their decision and a complete absence of probative factsto support a verdict may the court reverse a jurys verdict. Whenever facts are in dispute or evidence is such that fair-minded men might draw different inferences, a measure of speculation and conjecture is required on the part of the jury,whose duty it is to choose the most reasonable inference.(1) If a verdict was returned:

(A) allow the judgment to stand,(B) order a new trial, or(C)direct entry of judgment as a MOL;

(2) If no verdict was returned;(A) order a new trial, or(B) direct entry of judgment as a MOL.

(c) GRANTING RENEWED JMOL; CONDITIONAL RULINGS; NEW TRIAL MOTION

*If Renewed JMOL granted Court SHALL also rule on New Trial Motion in case vacated or reversed & specifyGrounds for granting/denying New Trial Motion

*IF Conditionally Granting New Trial & JMOL reversed New Trial SHALL proceed unless Appellate Court hasotherwise ordered

*IF Conditionally Denied Appellee may assert error on appeal, & If Judgment reversed Further proceedings SHALLbe in accordance w/ appellate court order

d) JMOL DENIED Verdict Winner MAY assert grounds entitling them to New Trial in the event the appellatecourt

concludes that the trial court erred in denying JMOL. Nothing Precludes Appellate from Granting New Trial or directing

Trial Court to determine grant/deny.** V WINNER Acts at Own Peril DOESNT Move, MAY Lose Opp. For New Trial

This is built-in appeal provision; but if Trial Court Grants New Trial, NO APPEAL UNTIL A FINAL JUDGMENTENTERED at close of New Trial Can only appeal from final judgment. No-Win situation to appeal when New TrialGranted b/c Either Verdict comes out the same, in which case, just reinforces the original verdict, guy who opposed NTis now happy, & Appellate wont overturn, OR, Verdict comes out different & Appellate Says See, Trial Court was rightto grant New Trial.*For District Court to Reverse Jury Verdict Must be Against the Great Weight of the Evidence & Seriously Erroneous.

*Appellate Ct Reversed District Cts Denial of New Trial ONLY if ABUSE of DISCRETION.

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59 NEW TRIALS

Makes New Trial an Option on all or part of the issues whether there was a Jury or Bench Trial. Typically only used orJury trials b/c a judge is not likely to find that he himself was wrong.*Appellate court will only reverse a denial of a motn for NT unless there was an abuse of discretion and the jury verdictis seriously erroneous.*An order for a new trial is not immediately appealable b/c it isnt a final judgment.

(b) Must Move w/in 10 days of entry of judgment, or the Right is Gone, but Can still rely on Rule 60(b) Relieffrom judgment/Order (Sua Sponte or Motion or Independent Action.*Nothing Precludes a party from moving for NT before Jury goes out.

(c) TIME FOR SERVING AFFIDAVITS

*When a new trial is based on affidavits, they shall be filed w/the motion.*The opposing party has 10 days after service to file opposing affidavits, but that period may be extended for up to 20 days,either by the court for good cause or by the parties written stipulation.*The court may permit reply affidavits.

(d) ON COURTS INITIATIVE; NOTICE; SPECIFYING GROUNDS

*Within 10 day period after judgment, a court on its own initiative may order a new trialusing same standards as if a partyhad made the motion.

*After giving the parties notice and an opportunity to be heard, the ct may grant a timely motion for a NT for a reason notstated in the motion.*When granting a new trial on its own initiative or for a reason not stated in a motion, the ct shall specify the grounds in itsorder.

(e) MOTION TO ALTER OR AMEND JUDGMENT

*Any motion to alter/amend a judgment shall be filed no later than 10days after judgment

60 RELIEF FROM JUDGMENT OR ORDER (Much More difficult that 55(c) motion)

a) Clerical Mistake Court may correct at any time on own initiative or motion of partyb) On motion, the ct may relieve a party from final judgment, order, or proceeding for:

1)Mistake, Inadvertence, surprise, or excusable neglect;

*mistake will usually only work from a default judgment;2)Newly Discovered Evidence which could not have been discovered by due diligence in time to move for New Trial3) Fraud, Misrepresentation, misconductof an adverse party4)Judgment Void5) Judgment has been satisfied, released, or discharged, or prior jdgmnt vacated6) any other reason justifying relief from the judgment.*1,2,3 NOT More than ONE YEAR after Judgment entered

Remittitur and Additur

Remittituris the procedure by which a trial judge gives a P who has received an excessively favorable jury verdict the option ofaccepting a specified reduction in the jury verdict or submitting to a new trial..

Additurwont cut it.

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Documents

Civ Pro I - Geyh (Fall 1999) (Provided by ILJ)