Civ Pro II outline STEWART

Naomi Stewart Spring 2008 CIVIL PROCEDURE IIOUTLINE

Civil Procedure II outline

I. The Process of Litigation: The Story of Pleading.

A. Rule 8

Basic Requirements:

Jurisdiction Obligation for Def

State demand for relief

State law that allows for relief

Short and plan statement of facts showing the π is required relief under the law

Rule 8b: Defenses – admit or deny, if no knowledge, then effects a denialRule 8c: Affirmative defensesRule 8e2 – Consistency in pleadings – don’t have to be consistent

Pleadings come very early, many possible versions of lawAllegations tempered by burdens of proofWill have to settle on a single version before trial

B. Rule 9

Pleading Special Matters:

Rule 9 covers pleading special matters.

Rule 9(b) governs pleading Fraud, Mistake, Condition of Mind

9g: special damages: damages that would not be expected to flow naturally from a ∆’s acts

Rule 9: Heightened Pleading: Special Matters – must be plead with particularity b/c adversary will not be expecting unless his attention is specifically called to thema. Denial of legal capacity, fraud/mistake, condition precedent, judgments or official documents, time and place, special damages, admiralty and maritimeb. Special damages – damages not expected to flow naturally from ∆’s actsc.Stradford v. Zurich Insurance co. – ∆ counterclaims fraud – Ct. says that fraud claims must be specific and say exactly what the fraud is – the purpose is to give ∆ () fair notice; but Ct. gives ∆ leave to amend

1.Fraud – accomplishes powerful things, so need to be specific during pleading (deterrent effect) – serious consequences for fraud.

II. The Process of Litigation: Ethical Limitations; Responding to the complaint; Reply; Amendments

A. Rule 7

B. Pleading (Rule 7 & 8)a. Generally

i. The facts and issues do not need to be alleged, as they are usually in discovery now. ii. Always the fear of pleading yourself out of court.

iii. Burden of Persuasion and Production are usually together. iv. Relies on liberal discovery and SJ to keep it simple.v. 9b Heightened pleading usually limited, but complex litigation usually requires it.

vi. Purpose: give notice of the claim (or defense) so that he makes effective discovery requests and tirla preparation.

1. Invoke, at least by reference, a body of substantive law – doesn’t have to be explicit

2. sketch a factual scenario that, if shown to be true, falls within that body of law


vii. Functions: Notice giving – generalized summary of the party’s position, sufficient to advise party for which incident he is being sued;

1. Eliminates cases that suffer from significant procedural defects2. Shapes discovery3. Pleading can eliminate a claim entirely (12b6)

viii. Mechanics – Complaint, answer (counterclaim)1. Reply – only allowed for counterclaims or by order of court (7a)

b. Rule 7 Pleadings Allowed; Form of Motionsi. Complaint, Answer (Counterclaim), Reply to Counterclaim, Answer to crossclaim, 3rd

party ii. Motion – request to court for an order

c. Rule 7.1

Disclosure statements

1.Who must file; contents

2.Time to file; supplement filing.

C. Rule 8

1. Answer complaint under Rule 8

2. If not answered, then the Plaintiff has the right to file for an entry for default judgment

Time to answer-

1. Waive of service- 60 days;

2. No waiver of service- 20 days

3. Pre answer motion tolls the time

Answer must be filed with court and served on Defendant under Rule 5.

I. PLEADING A. Purpose – Although common law required pleading to formulate issues for trial, and many state codes require

pleadings to present facts on the claims stated therein, the purpose of modern federal pleading rules is simply to give notice of claims and defenses adequate for the opposing party to make discovery requests and prepare for trial. There are three types of pleading under the federal rules: complaint, answer, and in limited circumstances, reply.

1) Liberal Pleading – The federal rules permit liberal pleading. The pleading is sufficient if the pleader asserts some theory that would entitle the claimant to relief. FRCP 8(e)(2) expressly permits the pleading of alternative or hypothetical claims and defenses and as many claims or defenses as a party has “regardless of consistency.” FRCP 8(a) permits demands for alternative types of relief.

B. Notice Pleading – Modern notice pleading requires no “technical forms of pleading.” [FRCP 8(e)(1)] A pleading need only include a caption, numbered paragraphs containing averments “limited as far as practicable to a statement of a single set of circumstances,” and separate counts for different claims or defenses. None of these requirements is strictly enforced because “[all pleadings shall be so construed as to do substantial justice.” [FRCP 8(f)]

C. Special Pleadings – While notice pleading – which does not require facts to be pleaded with particularity – is the norm, FRCP 8(a) does impose a particularity requirement for pleading any “special matters” set forth in FRCP 9. Special matters are generally claims that would not necessarily be anticipated by the adversary, e.g.:

1) A denial of a party’s capacity to sue or be sued.2) Denial of the occurrence or performance of a condition precedent.3) Suits based on fraud or mistake.4) Claim for special damages, i.e., damages for injuries that are not a normal and expected consequence

of the event at hand.D. Stages

1) Complaint – Informs the defendant of the charges against him

http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=FRCP+R+9.

http://www.lexis.com/research/xlink?canceldest=form&keyenum=25271&keytnum=0&searchtype=get&search=FRCP+R+8







a. Requirements: a valid complaint should include the proper:i. Elements:

Jurisdiction Statement of the Claim Relief

ii. Language: the complaint need not be overly specific but should contain plain language (i.e., plaintiff need not specify which codes or statutes defendant allegedly violated). Thus, the defendant cannot say that the allegations were not technical enough or that he could not understand certain allegations.

iii. Timeline: Filing of the complaint will normally occur before it is served. Service must then normally occur within 120 days (Rule 4(m)).

b. Code Requirements: to be valid, a complaint must allege the material and ultimate facts upon which plaintiff’s rights of action is based.

c. Federal Rules Requirements: Under FRCP 8(a) a complaint must contain the following:i. A short and plain statement of the grounds upon which the court’s jurisdiction

depends.ii. A short and plain statement of the claim showing the pleader is entitled to relief.iii. A demand for judgment for the relief the pleader seeks.

d. The Right to Relief: under FRCP 8(a)(2), the pleader must show that he is entitled to relief. A complaint lacking a material element should not be dismissed if the plaintiff can prove the material element at trial.

e. Alternative and Inconsistent Allegations: FRCP 8(e)(2) permits alternate pleadings even when they are inconsistent. In the past, courts have held that pleadings containing inconsistent allegations are defective if they appear in a single cause of action or defense, but they have approved such inconsistent allegations when listed in separate causes of action or separate defenses. Most jurisdictions now permit inconsistent allegations whether or not separately stated. Several states have modified their pleading rules to permit inconsistent allegations.

a. Rule 8b

Defenses; Admissions and Denials

1.Party must respond in short to each claim asserted against it.

2.Admit or deny the allegations asserted against it by opposing party.

II. DENIALS: Responding to Substance- A denial must fairly respond to the substance of the allegation.

Party may deny a claim if they also need more time for investigation of the truth to truly determine if this claim is deniable or they will admit later.

Failure to specifically deny the claim will be constituted as an affirmation and acceptance.

GENERAL DENIALS: not common, b/c that says everything is completely untrue.

SPECIFIC DENIALS: say some are true and some are not; this is the most common.

b. Rule 8C

TEST FOR AFFIRMATIVE DEFENCES:

Whether the Δ intends to rest his defense upon some fact not included in the allegations necessary to support the π’s case.

Defense was waived when Δ forgot to add this claim on their answer/counterclaim.

Defendant takes on burden such as proof for that matter.

Affirmative defense rule is required due to not create any surprises at trial


Affirmative Defenses – must be explicitly pleaded in the answer is the defendant is to raise them at trial (Rule 8(c) lists all 19 specific defenses, which must be specifically pleaded in the answer if the defendant wishes to raise them at trial)Examples:Contributory NegligenceFraudRes JudicataStatute of LimitationsIllegality

a. Test for affirmative defense: Rule 8(c) requires the defendant to plead affirmatively “any other matter constituting an avoidance or affirmative defense.” The essential criterion for deciding whether a defense is an affirmative one is roughly as follows: any new matter or issue not embraced by the complaint should be pleaded as an affirmative defense.

b. Amendment: A defendant who has neglected to plead an affirmative defense may use Rule 15(a). In most instances, Rule 15 (a) gives the defendant 20 days from the service of the original answer in which to amend. After 20 days, the defendant must request leave from the court to amend the answer.

Compulsory counterclaim- Must be stated in the Answer or it is barred. Claim arises from the same occurrence of facts.

D. Rule 11 SANCTIONS

RULE 11- does not cover attorney’s conduct during discovery; most of the misconduct did not fall under Rule 11. The conduct was not covered by Rule 11 and could not be enforced by the court for the sanctions.

Rule 11 sanctions are appropriate only when an attorney, through court submissions raises allegations or factual contentions that are not supported by evidence or likely to be supported with an opportunity to conduct a reasonable investigation

In federal practice the procedural rule requiring the attorney or the party to sign all pleadings, motions, and other papers filed with the court and by this signing to represent that the paper’s filing was done in good faith after an inquiry that is reasonable under the circumstances.

-Appropriate sanctions on atty, client or both on proper notice

-monetary penalties and expenses for court

E. Rule 12 OBJECTIONS TO COMPLAINT;

12 b- Waivable defenses

12 b 6- Motion to Dismiss

Δ May raise any of these defenses:

1. Lack of subject matter jurisdiction Timing: Raised at any time during proceedings (never waived)

2. Motion for lack of personal jurisdiction-

Motion of Improper venu

Insufficient process or service of process If not brought by motion, then forever waived

3. Failure to state a claim upon which relief can be granted (Demurr) Can be raised anytime before trial or during trial


4. Failure to join a party any time before/during trial

Rule 12(b)(6) motion to dismiss ABA claima. Standard = plaintiff could prove no set of facts that would entitle her to relief [NOTE to students in future years: the Bell Atlantic v. Twombly case discussed in class altered this standard.]b. Law here is unsettled – need to convince court to extend statute’s protections to reach celebrities in order to avoid dismissal of ABA claimRule 12(f) Motion to Strike

o Properly consolidated in pre-answer motiono Timely within 20 dayso Proper device for attacking demand for jury trial

F. Rule 15 AMENDMENTS

If the statue of limitations in the amended pleading will also have past at the time of the original pleading, then the amendment will not be allowed. (date does not satisfy the statue of limitations)

A party has leave to amend a complaint ONCE at any time before a responsive pleading is served. (Before any answer/denial or anything from Δ)

Thereafter the approval of an amendment to the complaint is up to the court, and is freely given.

15C1C- AMENDMENTS to add another party:

Requirements for the party to be added:

Must have been served with notice and process within 120 days

Claim arose from the same tranx or occurrence

New party had notice

The new party knew or should have known a claim would have been made against him

New claim is added:

Even after statute of limitations has run, so long as the conduct regarding the dispute so long as the claim relates back to the date of the original complaint.

Rule 15A “freely given when justice so requires” Rule 15A “freely given when justice so requires”

Rule 15 A- provides that leave to amend a complaint should be freely granted absent undue prejudice to the other party, undue delay by the moving party, or bad faith.

An amendment to add a time barred claim would be futile unless it will relate back to the date of the original complaint.

Rule 15C permits an amended pleading arose out of the conduct, transaction, or occurrence as the claims in the original complaint.

RULE 15 C 1 B- amendment asserts a claim or defense that arouse out of the same conduct, transactions, ect and was set in the original pleading.

If Rule 15 C 1 B is satisfied? (from the same nucleus of facts, conduct)


Within the period of Rule 4 for Summons and Complaint?

Within 120 days of filing of the original complaint being filed.

o “new” Δ had received such notice of action that it won’t be prejudice

o Knowledge of the action

Rule 15 – leave to amend shall be given freely when justice so requires. Factors (Foman v. Davis, cited in Beeck v. Aquaslide):

o Undue delay, bad faith or dilatory motive by moving partyo Repeated failure to cure deficiencieso Undue prejudice to opposing partyo Futility of amendment

Undue delay/bad faith – amendment is very late – discovery has likely closed, and trial is two weeks away. As such, there is not sufficient time for the parties to take discovery as to AP and prepare for trial with AP in the case, and trial would have to be delayed. No facts suggest bad faith or dilatory motive, but not clear why Spears waited so long to seek amendment, either.

Repeated failure to cure deficiencies – facts do not suggest any previous amendments, so this factor is probably not a problem for Spears.

Prejudice to Barge – because amendment here is sought on the eve of trial, Barge will suffer prejudice in that trial will have to be delayed to allow time for discovery, which will likely cause a substantial increase in his litigation expenses. On the other hand, joining the AP would bring in another party upon whom blame could be placed or with whom liability could be shared.

Futility of amendment – Joinder would likely be permissible under Rule 20, and as long as proposed amended complaint states a claim upon which relief can be granted, this factor is also likely not a problem for Spears.

o Same transaction or occurrence – publication of the articleo Common question of law or fact – was article published injurious to Spears’s reputation, was ABA violated,

etc.o Joinder will not destroy diversity because AP is citizen of FL, a different state than all other parties

FACTORS TO CONSIDER WHEN DECIDED IF THE PARTY/ISSUE CAN BE AMENDED?

Prejudice to non movement and bad faith of the movement- are not issues that are present here

Undue Delay- attempting to move for amendment in order to delay proceedings.

Dilatory delay- a slow or purposely slow movement; has a bad connotation

Repeated failure to cure deficiencies by previous amendments

Futility of amendment- if the amendment is futile by the claim or defense and it would be subject to immediate dismissal/strike from the record.

RESPONDING TO THE COMPLAINT!

Ways to respond to the complaint-

3. Pre answer motion under Rule 12

4. Answer complaint under Rule 8

5. If not answered, then the Plaintiff has the right to file for an entry for default judgment

Time to answer-

4. Waive of service- 60 days;

5. No waiver of service- 20 days

6. Pre answer motion tolls the time


Answer must be filed with court and served on Defendant under Rule 5.

Pre- answer motions

Rule 12;

Rule 12E and 12F are not pre answer; must be presented in first doc response to court or it is waived by the use of Rule 12 already….can only use on one motion

What makes Rule 12 B2-5 special enough for an exception?

Article III of constitution upholds some of these defenses

Also doesn’t allow b/c it would waste court time and it is best to handle these issues effectively and quickly and address them in the initial answer.

III. JOINDER: Joinder of Claims and Parties

Joinder and Jurisdiction (The problem) –

ALWAYS ASK 3 QUESTIONS:

1. Joining a claim or party?

2. Do the principles of Joinder, governed by Rules, permit combining the claim? a. TRANSACTIONAL RELATIONSHIP TEST

i. Come from the same tranx or occurrence of events b. EXISTENCE OF COMMON Q’S OF LAW AND FACT

3. Assuming Joinder is permitted, does the court have adequate jurisdiction over claims and parties?a. Each claim by each party must be supported by an independent ground of jurisdiction. b. Federal question OR AIC $75k applies AND Diversity of parties.

UNLESS: Supplemental jurisdiction applies:

A.Rule 13

COUNTER CLAIMS

1. Considering a claim: RULE 13a. What it is the Δ is trying to accomplish?

i. Affirmative relief-Rule 13ii. Affirmative defense-

b. Is the “would be” counter claim permissive or compulsory?i. Compulsory- means it must be brought with the other action, or is barred.

ii. Permissive- means it can be brought with other similar action but is not barred if not brought; 1. Permissive must have a independent federal jurisdiction

KEY DISTINCTION- Jurisdictional between two claims

Counter claim is permissive- must have its own jurisdiction to be decided upon in federal court.

Counter claim is compulsory- then the jurisdiction is gained by supplemental jurisdiction.

2ND Key distinction- Compulsory claims have to be brought with the original action and will be barred if they are brought separately.


To decide how a claim is compulsory or permissive?

1.Transaction/occurrence test- Is it out of the occurrence of facts?

a. Logical relation test-majority test- aggregate of operative facts? Arises out of the same facts from π’s claim but asserts a defense or counter claim to protect Δ

b. Is there a common question of law or fact?

A counterclaim is compulsory under Rule 13 if it is a claim that the pleader has at the time of pleading against the opposing party that arises out of the same transaction or occurrence that is the subject matter of the opposing party’s claim.

Claim cannot be the subject of another pending action- Rule 13 A(2)A

Claim MUST exist at the time of filing!

PERMISSIVE CLAIMS- cannot be brought in same federal court, but does not preclude that claim is not actionable.

a. Claim can still possibly be brought in independent actionb. Claim can still possibly be brought in state court

Rule 13- allows Δ to bring counter claims on π

13(f), Allows for late counter claim- counterclaim omitted through oversight, inadvertence or excusable neglect, or when justice so requires, may be asserted later with leave of court.

CROSS CLAIM- RULE 13 G-FILES AGAINST A CO DEFENDANT/PARTY- if the claim arises out of same facts or law. ONLY USE CROSS CLAIMS WHEN THE PARTY CLAIMING AGAINST OTHER PARTY IS ALREADY A NAMED PARTY IN THE LAWSUIT BY π.

Rule 13 (G)- allows co parties to allege claims against one another but ONLY if the claim occurs out of the original complaint. And the claim is logically linkable to the fact of the original complaint.

Counter claim issue- RULE 13 A- breach of K claim has nothing to do with liability action brought by π. Could possibly bring this action under RULE 13 B- Permissive counter claim- So long as there is jurisdiction RULE 13B. If entirely unrelated and no federal issue the most likely it will not allow the claim to be added.

13A1- a pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the same transaction or occurrence that is the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction

-Rule 13a 1- does not apply if there has been no pleading

Rule 14 IMPLEADER: Third party shifting burden to another Δ

Used by a third party who is trying to shift the burden to another party.

A party acting as a Δ may implead any party who is liable to him for part or all for the claim.

Generally arises: Tort actions: Indemnity or contribution.

Third party may arise defenses against org. Δ and against π original claim.

Supplemental jurisdiction applies to impleader action – no basis for jurisdiction required.

Δ can implead more than one party and they all claim and cross claim(Δ v Δ) against each other.


Π can also implead a third party: i.e. counter claim from Δ then π may then implead a third party to seek contribution and indemnity for a counter claim.

Rule 14 impleadera. Substantive basis for liability = contributionb. Subject-matter jurisdictionc. 10-day time limit has lapsed

i. Thus Barge must obtain leave to join the APii. Court will decide whether to grant leave, balancing efficiency benefits against potential prejudice to

plaintiff and third-party defendants, considering the following factors (CB page 752):1. Whether movant deliberately delayed or was derelict in filing the motion;2. Whether impleading would unduly delay or complicate the trial;3. Whether impleading would prejudice the third-party defendant; and4. Whether the third-party complaint states a claim upon which relief can be granted

Rule 14 allows a defendant like Braun to implead a third-party who is or may be liable to him for all or part of any liability that may be established by the original plaintiff. The liability asserted against the third-party defendant must be derivative of the liability alleged against the third-party plaintiff.FRCP Rule 14 (a)- A Δ may assert a claim against anyone not a party to the original action if that third party’s liability is in some way dependent upon outcome of litigation.

B/c Impleader is only proper when a Δ asserts that the liability for the original action is properly placed upon the third party.

In order for a rule 14/impleader complaint to be filed must be a substantive basis for third party liability.

Factors to consider when impleading a party: **Any major concern on factor will probably get the motion to implead party denied for prejudice against parties.

1. Movant deliberately delayed or was derelict in filing the motion2. Impleading would unduly delay or complicate trial3. Impleading would prejudice the 3d party Δ4. Third party complaint states a claim upon which relief can be granted

There must be a indemnity/contribution (derivative litigation) claim on third party to be injoined under Rule 14.

If no derivative liability must be joined under another Rule.

ANALYSIS FOR JOINDER:

1. Claim or party to join?2. Joinder rules satisfied?3. Jurisdiction for all parties satisfied?4. Who is bringing the claim? Π OR Δ?

d. Rule 18

Rule 18 A single π can join any and all claims he as against a single Δ.

Requires claims from the same incident to be joined, if they arise from the same incident (set of facts)

Don’t have to join all claims, usually it is permissible for party to decide what issues to join

Joinder of related claims may be mandatory in some regard, b/c if not joined then opportunity to have this issue heard is lost;


o Efficiency based doctrine- does not allow a π to sue a Δ or a group of Δ for related claims it could easily and more efficiently solve in one case.

e. Rule 20

PERMISSIVE JOINDER OF PARTIES:

PERMISSIVE CLAIMS- cannot be brought in same federal court, but does not preclude that claim is not actionable.

a. Claim can still possibly be brought in independent actionb. Claim can still possibly be brought in state court

Rule 20 A

1. A right to relief must be asserted by, or against, each π or Δ relating to or arising out of the same transaction or occurrence, or series of tranx, or occurrences; and

2. Some question of law or fact common to all the parties must arise in the action

IV. JOINDER: Intervention and Interpleader

DETERMINE: Whether Supplemental jurisdiction applies?

JOINDER DEVICES:

Supplemental jurisdiction: Ancillary or IndependentJoinder devices:

APPLIES:

1. Compulsory counterclaims-13

2. Cross claims-RULE 13 G

3. Adding additional parties to respond to compulsory counter claims or cross claims= RULE 20

4. Impleading a third party Δ or third party Δ’s claim against the original π RULE 22 or §1335

5. Joinder of claims – RULE 18

6. Rule Interpleader RULE 22

7. Intervention of Right – RULE 24 A

SUPPLEMENTAL JURISDICITON DOES NOT APPLY:

1. Permissive Counter Claims = Rule 13 B

2. Impleader- where original π’s claim is made against an impleaded third party Δ impleaded by original Δ

3. No supple jurisdiction for necessary and indispensible parties under RULE 19

4. Permissive Joinder of parties RULE 20

5. Permissive Intervention RULE 24

a. Rule 19- USED PRIMARLY BY DEFENDANTS-


b. Usually used by Δ to say one party should be joined or can’t be joined.

Rule 19-

Is absentee one who is “required to be joined if feasible” (necessary to judicate the case) (19A)

a. Necessary?

b. Required? Yes, then must determine if any prejudice.

Is joinder is feasible If so, can party be joined?

a. Subject matter jurisdiction?

b. Personal jurisdiction

c. Venue

d. If yes to all the Yes joinder is proper.

If not, case dismiss? Or proceed without party? (19B)

a. indispensible party? Yes, then proceed. The party MUST BE joinded OR case dismissed.

1.A-Persons required to join if feasible

1. B- what happens when joinder is not feasible?

a. Necessary parties

i. Then decide if it is indispensible under Rule 19

Compulsory joinder- the necessary joinder of a party if either of the following is true:

1. In that party’s absence, those already involved in the lawsuit cannot receive complete relief.

2. The absence of such a party claiming an interest in the subject of an action, might either impair the protection of that interest or leave some other party subject to multiple or inconsistent obligations.

Indispensible Party- a party who having interests that would inevitably be affected by the court’s judgment, MUST be included in the case.

Necessary Party-a party who being closely connected to a law suit should be included in the case if feasible, but whose absence will not require dismissal of all the proceedings.

1. Is the absentee party one who is required to be joined if feasible?

a. Rule 19A(1) (B) (i)

Rule 19 A- provides for mandatory joinder in circumstances where judgment rendered in absence of a party may impose a risk of incurring inconsistent obligations on the parties.

b. Interest of the party wanting to join?

c. “necessary” or “required if feasible”

d. Interest protected b/c they can file their own suit? Or b/c they have not opted to?

e. Yes b/c they can bring their own suit b/c they can bring suit for breach if the breach occurs.


If case proceeds w/out party will their interest be hindered or helped? If not either then move on or if the significance is not large enough then the case can continue w/out party.

2. If the party is feasible can it be joined under Rule 19?

a. Jurisdiction proper on all parties? Yes join party Nogo to #3

3. Can the case proceed without the party?

a. Yes proceed with case

b. Noparty must join voluntarily or if they don’t then case is dismissed

Δ arg- judgment would be inconsistent obligations to contracts, court responds that the Δ put them self in the position of being inconsistent.

RULE 20- Used by Plaintiffs

Counter claim is permissive- must have its own jurisdiction to be decided upon in federal court.

Rule 20 A

1. A right to relief must be asserted by, or against, each π or Δ relating to or arising out of the same transaction or occurrence, or series of tranx, or occurrences; and

2. Some question of law or fact common to all the parties must arise in the action

C.RULE 22- INTERPLEADER:

STATUTORY INTERPLEADER- more commonly used: § 1335

Used: Used when there is one party who owes something to one of two or more other persons but is not sure whom to force the other parties to argue their claims among themselves. The technique is designed to allow the “stake holder” to avoid being made to pay for the claim twice and to have agreeing judgments.

Special Requirements Apply:

Commonly used: Statutory Interpleader § 1335: SPECIAL REQUIREMENTS APPLY!

1. Subject Matter jurisdiction- only min. diversity is required. B/w on π (stake holder) and Δ (claimants)

2. Amount in Controversy only $500

3.Personal Jurisdiction- nationwide process allowed, over any claimant in any state in U.S.

3. Venue- proper in which one or more of the claimants reside.

a. § 1335

§ 1335 –The Interpleader Act BROADENS THE CIRCUMSTANCES IN WHICH THE INTERPLEADER IS AVALIABLE, ELIMINATION SOME RESTICTIONS THAT OLDER EQUITY DOCS HAD IMPOSED.

§1335a-The act removes limitations on federal subject matter jurisdiction

Statutory Interpleader § 1335- (minimal diversity) (Subject Matter Jurisdiction waiver)

1.$500 dollars amount in controversy required.

2. 2 or more diverse claimants

b. § 1397


§1397-expands venue

§ 1397- VENUE

1 Where one or more claimants resides they may be brought into court there.

c. §2361

§2361- allows nationwide service

§ 2361- Nationwide Process of Service- PERSONAL JURISDICTION

1.Allows court to serve anyone within the nation.

Strawbridge does not apply to statutory claims

Factors to consider for Rule 24 Interpleader is proper:

Timeliness:

1. How long the applicant knew of his interest before making the motion

2. Prejudice to the existing parties from any such delay

3. prejudice to applicant if the motion is denied

4. other unusual circumstances

ISSUE Fed. Interpleader Act Stat. RULE 22

Subject matter jurisdiction

Amount in controversy

§ 1335- $500

2 or more diverse claimants

No strawbridge

§1332- $75K

Complete diversity

Strawbridge applies

VENUE §1397 Where one or more claimant resides

§ 1391

All Δ reside in state

Dispute arose in state (prop located)

Personal Jurisdiction

Service of process

§2361 –nationwide service of process allows P.J.

Rule 4 –Trade modes of service and process

Injunctions §2361 § 2283 For stay “where necessary in aid of jurisdiction”

Interpleader – Rule 22 –least commonREGULAR RULES APPLY:Subject matter Jurisdiction: Complete diversity and all adverse claimants required and AIC of $75k OR Federal Question Claim. Personal Jurisdiction: May borrow states’ long arm statueVenue- proper if either stakeholder resides or where ALL the adverse claimants reside or WHERE the adverse claim arose (or prop is located)

http://www.law.cornell.edu/rules/frcp/Rule22.htm


Cohen v. The Republic of the Philippines

Here we have a situation where you’re holding on to some kind of property that’s not yours and you don’t know who it belongs to. You want to protect yourself from multiple, inconsistent judgments. Impleader is third-party practice under Rule 14. Intervention is “butting in” under Rule 24.

Interpleader comes in two variants: (1) statutory interpleader and (2) Rule interpleader.

Interpleaders are great, but only if you get all the parties.

Statutory interpleader is more common.

The statute tells us the federal courts have original jurisdiction over interpleader actions with $500 in controversy and minimal diversity (only as between claimants). You deposit the thing with the court. So this is different than regular old diversity jurisdiction, where you need complete diversity. Where will these lawsuits happen? There is an interpleader venue statute, § 1397, which says you can bring the action in a district where one or more claimants reside. How about personal jurisdiction? § 2361 gives us nationwide service of process! You can issue process or all claimants and stop other lawsuits in order to bring everybody together. Everything about these statutes is designed to make it easy to bring everyone together.

d. Rule 24 INTEVENTION:

Intervention: Permits a party to join a lawsuit where no one wants her.

Granted by right or by permissive.

Mandatory Intervention: Intervention of right is available under RULE 24 A- when an applicant claims an interest in the property or tranx that is the subject matter of the law suit. AND Not being represented in the action, would impair his ability to protect his interest. AND the parties currently cannot represent the interest sufficiently

Must join in a timely fashion;

Supplemental jurisdiction applies. No need for independent subject matter jurisdiction.

PERMISSIVE INTERVENTION:

RULE 24B- upon timely application (Cannot increase delay for main action) , Applicant may assert a common claim or defense that involves a common question of law or fact with that of the main action.

Principles of intervention- flow from a recognition that lawsuits may have effects on persons not joined

No direct personal interest is required;

Interveners claim need not arise from same same tranx or occurrence of same law suit but MUST HAVE a same a question of law or fact in common with the main action.

I.E. L.A. sues CA. dept. of welfare regarding regulations for disbursement of benefits; persons who are state welfare recipients may intern as parties may join b/c claim will have a common claim of question of law or fact.

RULE 24-

Rule 24 allows anyone upon timely application, to intervene in an action if the applicant claims an interest relating to the property or transaction which is the subject of the action and that interest is subject to possible prejudice and lack of adequate representation.


24 (A) -Intervention of right-

Intervention- designed to give to those with strong interests in the litigation the power to insist on joinder.

Must be allowed to join

REQUIREMENTS:

o Timely intervention

o Inervenor must have an “interest” in the tranx

o Parties in law suit do not adequately represent interest

24 (B)- Permissive Intervention

Designed to capture those with weaker bases for insisting on joinder

may be allowed to join

Why is UNC granted intervention?

1.Rule 24 A1- interest to the subject/tranx

a. Yes then joinder if all other req.s met

b. No No joinder is proper

UNC’S interest is applicable b/c they may be affected by being a license holder b/c it may affect their contract. So, they wanted to be involved to show the problems with requiring the license.

2. Rule 24 A2- some other party representing the interest of the party?

a. If yes then no joinder is necessary the interest is represented by other parties

b. If No then joinder may be proper if jurisdiction is proper.

V. DISCOVERY: Relevance, Privilege and Privacy limitations; Methods & Procedures; Ensuring Compliance & Controlling Abuse of Discovery

a. Rule 26

RULE 26 A1- Initial Discoveries

Rule 26b- Do not have to disclose EXPERT WITNESSES until 90 days prior to trial, they are not covered under initial disclosure.

The Rule here says that discovery is relevant if it relates to claims or defenses.

REQUIRED DISCLOSURES: RULE 26 A1

1. Any information for victims, witnesses, and the information needed to be able to have an adequate defense of claims and defenses.

2. Copies of insurance agreements and damages claims and details


TIME LINE:

1. 90 Days from initial complaint of filing

2. Rule 16- then states 21 days prior to “conferencing meeting with judge”

3. Rule 26 F-

4. Rule 26 a (1)

5. Also must consider local rules of court and required time line

RULE 26 B- rest of discovery – relevance and privilege

RELEVANCE- Piece of information to be relevant to a legal proposition means, according to the governing substantive law- enforced by the rules of evidence- that the information tends to prove or disprove something the law says matters.

non-testifying expert so that the protections of 26(b)(4)(B) apply and his report is discoverable only upon showing of exceptional circumstances

Under Rule 26(b1), parties may obtain discovery under any matter not privileged that is relevant to the claim or defense.

Rule 26(a)(1) requires that a party disclose initially those individuals likely to have discoverable information that the party may use to support its claims or defenses.

Rule 26 B 5- requires a party claiming the privilege to “describe the nature of the documents, communications or things not produced or protected, will enable other partis to assess the applicability of the privilege or protection.

Rule 26 (g)- Forbids abusive discovery

26 g3- permits a court to impose an appropriate sanction including atty fees against a party or atty who submits a certification including a sworn discovery response in violation of discovery rules

Rule 26- “permits a broad scope of discovery”

-A court may issue a protective order for certain matters

26 (c ) – discretion to issue a protective order upon good cause where “justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.”

Party must provide an interest protected to try and use a Rule 26C protective order motion; Party states depositions will embarrass parties and are protected by privilege

Or where the areas reach outside the acceptable bounds of appropriate discovery.

Moving party for protective motion must show “good cause”

-must provide a particular and specific demonstration of fact, distinguished form stereotype conclusory statements.

Privilege log- If party wants to claim privilege then party must: UNDER RULE 26 5A

When party makes the motion for privilege than must prove these requirements:

1. Provide information as much as possible, nature of docs, communications, ect with privacy info deleted so to protect parties (Privilege log)


2. Expressly make a claim

Request for inspection or document all requested- Under Rule 26

Must provide all documents unless the defense can make the very unstable argument that document may not apply directly to claim (but could still impeach the claim) so therefore, usually just produce all documents in order to avoid sanctions under Rule 37D.

RULE 26 A1- Initial Discovery (voluntary initial discovery used to show Δ their evidence to back up their claims(gives the Δ the ability to know how much evidence they have or if the claim is valid, will prove how much work Δ needs to do to disprove claim))

Must disclose information that π MAY USE support claims and defenses.

26 A 1 a1- witnesses

26 A 1 a2- documents

26 A a3- damages requested

26 A a4- insurance docs

RULE 26- INITIAL DISCLOSURES (IF THEY ARE NOT A PART OF THE TYPES OF CASES IN EXCEPTIONS PARTY OF RULE 26 B1- THEN the party MUST provide the information for initial discovery so long as it MAY BE USED to support or deny claims.

ALL OTHER TYPES OF DISCOVERY FALL UNDER REQUIREMENT FOR “RELEVANT” AND “NON PRIVILEDGED”

***Must disclose information that π would want to use in support of his claims.

DOES NOT MEAN that the π must provide b/c Δ can request witnesses and information through disclosure as well.

RULE 26 B- rest of discovery – relevance and privilege (keep in mind when questioning if the document/or any type of discovery can be used Is it relevant or privileged?

PRIVILEGE-any matter not priviledged which is relevant Rule 26B1- evidence creates privileges protections from information from certain sources.

a. Privileges are not intended to hide relevant facts. b. A privilege is a protected piece of information for some reason *usually personal, like no self incrimination and

use of the 5th amendment

RULE 26 A1 LAST LINE- part of rule “Impeachment” means that party does not need to supply any information that would lead or could lead to negating her claim or any defenses. Basically won’t let you talk yourself into a hole that won’t let you recover once it is out in the open to the parties.

Initial Discovery Re-visited-

“Unless for Impeachment” If the document or issue for discovery may impeach the claim then it may be brought at initial discovery for the defense, but HAS to be brought for the π to support claim.

Defense can submit discovery initially or can try and submit it later to end case

But it may lead to sanctions if not careful in making sure this is not a document that would be required by initial discovery or at some time during discovery.

Creates “un fair surprise” to the other party if they have a piece of impeachment discovery material and does not give other side fair notice prior to use in trial or trial.


If document is found court may impose sanctions or may not allow evidence to avoid “undue surprise”

Request for inspection or document all requested- Under Rule 26

Must provide all documents unless the defense can make the very unstable argument that document may not apply directly to claim (but could still impeach the claim) so therefore, usually just produce all documents in order to avoid sanctions under Rule 37D.

b. Rule 27

Depositions to perpetuate Testimony

c. Rule 28

Persons BEFORE whom depositions may be taken

1.Within U.S.

2. Definition of “officer” FOR a business

b. in a foreign country

c. disqualification- family members, employee or atty of the client. No one who is financially interested in the claim at issue.

d. Rule 29

Stipulations About Discovery Procedure

e. Rule 30

Depositions by oral examination

Rule 30 B-

1. Requires only 25 interrogatories

Rule 30 D 1- restricts the discovery questions to only questions of relevance. If privileged or unrelated information is asked then Attorney can object and permit client not to answer.

Rule 30 C2- Some objections to questions can be asked then the attorney can ask the court to strike that information from the record so that it is not allowed at the trail.

Objection to interrogatories/depositions or discovery

Basis on what a party may object to discovery:

1. Unduly burdensome

2. Vague/ambiguous

3. Overbroad

4. Irrelevant Rule 26

5. Privileged

6. Embarrassing or annoying – Rule 30

7. Unreasonable cumulative

8. Obtainable from another source.


f. Rule 31

DEPOSITIONS

Depositions is like questioning a witness w/out a judge, but a court reporter must be present. (Rule 28, 30, 31, 32)

1. Witness must answer the questions under oath.

2. The advantage is that the lawyer can ask a series of question that force the witness to take a position as to the matters at issue, and the lawyer can follow up with further questions if the witness is evasive or if the testimony opens up new avenues of inquiry.

3. Depositions are more expensive.

4. One side of the litigation may not exceed 10 depositions w/out the court's permission.

g. Rule 32

h. Rule 33

RULE 33 A1- Can only make parties answer interrogatories (can’t make a third party)

i. Rule 34

Production of Documents/Production RULE 34

Pros and cons compared to other discovery devices:

1. Send request for discovery

2. Other party must answer to each interrogatory and back each up with a document

3. It must be within 30 days after being served (34 B 2 a)

4. At that point party states objections or states when docs will arrived

5. Objections are dealt with through the court and then party must get court to make party provide item for discovery.

j. Rule 35

RULE 35- Production of Medical/physical examinations

1. Available to all parties, π and Δ

2. Must prove 2 requirements to get a motion granted for physical/mental examination:

a. The person’s ability for physical or mental ability is “in controversy” and related to the claim

b. Party must show good cause to ask individual to submit themselves to the examinations

i. Party must show good cause is directly related to the issue in controversy

ii. Party must prove the need for the examination outweighs the burden of invasion of privacy

3. Rule 35- applies to all parties in order to be fair to allow for all parties to prove issues for claims or cross claims.


4. Rule 35- Party moving for examination must show good cause for examinations (if no good cause then unnecessary invasion of privacy occurs)

k. Rule 36

RULE 36-A party may serve on another party a written request to admit for purposes of the pending action only, the truth of any matters within scope of Rule 26 b1-

A. Facts, the application of law of fact, or opinion about either; and

B. Genuineness of any described document.

Not admitting the issue and later a jury concludes the opposite then there may be sanctions met under Rule 37C 2.

l. Rule 37

Rule 37 A- motion to compel Must try to meet with parties to negotiate issues (in good faith) and to ask for response again. After negotiations between parties and still no response, then the party must show evidence of good faith conferral. After this evidence is submitted court can award sanctions based on attorneys’ fees and appropriate punishment for not following FRCP

37 A- provides for basics of motions to compel can be made

37 B- Applies when there has been an order requiring some sort of discovery and not complied with

37 C- Provides for sanctions of not being able to use evidence not disclosed in initial disclosures; Failure to admit, and failure to disclose

37 D- provides for possibilities of seeking sanctions when a party fails to comply accurately to discovery under 37A.

37 D 3- types of sanctions available

FRCP 37- π is entitled to reasonable expenses including attorney’s fees incurred in bringing a motion to compel discovery or motion to test sufficiency of discovery responses, unless the π first failed to make a good faith effort to obtain the discovery without the court action or such an award would be unjust under the circumstances

BOTH HAVE GOOD FAITH CONFERRAL REQUIREMNT prior to court taking action on motions.

Rule 37 A 3 B- i- Failing to answer, designation, production or inspection for order compelling party to answer.

m. Rule 45

Rule 45 Third party –

A 1C- subpoena to request documents (subpoena duces tecum-docs only) or to show up at trial as a witness or to show up and take depositions.

REQUEST OF DOCUMENTS FROM THIRD PARTIES

1. Motion to request documents from third party and that party has been served and subpoenaed correctly

2. Rule 45 (Subpoena) A1 C-May be included in a subpoena as a non party

non party- command to produce materials, or inspections.


VI. DISCOVERY: Work Product Doctrine; Experts

a. Rule 26

i. Rule 26 B

Non testifying experts are not available for discovery; only experts that are retained for litigation are available for discovery.

What is the difference between fact and expert witness?

Fact witness- Someone who simply witnesses the transaction, however their professional status is used, it is not for the purpose of litigation therefore a fact witness.

Expert witness- any doctor that was hired for the purpose of litigation and in anticipation for litigation.

RULE 26 B- rest of discovery – relevance and privilege

non-testifying expert so that the protections of 26(b)(4)(B) apply and his report is discoverable only upon showing of exceptional circumstances

Under Rule 26(b1), parties may obtain discovery under any matter not privileged that is relevant to the claim or defense.

Rule 26(a)(1) requires that a party disclose initially those individuals likely to have discoverable information that the party may use to support its claims or defenses.

Rule 26 (B) (3) (a)- Ordinarily a party cannot discover documents and tangible things that are prepared in anticipation of litigation or for trail.

Rule 26 B 5- requires a party claiming the privilege to “describe the nature of the documents, communications or things not produced or protected, will enable other parties to assess the applicability of the privilege or protection.

Rule 26 B 3- WORK PRODUCT: Protected material:

Privilege requires- ONLY the communications between the parties, not if there is fact that are discussed between the individuals.

Privilege claim will usually prevail for all reasons other than if the claim has something to do with a constitutional claim; the privilege will trump other than constitutional claims.

ii. Rule 26 C

Rule 26 (c )- permits a party to seek a protective order and give the judge broad power to prevent abusive discovery

Privilege log- If party wants to claim privilege then party must: UNDER RULE 26 5A

When party makes the motion for privilege than must prove these requirements:

3. Provide information as much as possible, nature of docs, communications, ect with privacy info deleted so to protect parties (Privilege log)

4. Expressly make a claim

Objection to interrogatories/depositions or discovery


Basis on what a party may object to discovery:

9. Unduly burdensome

10. Vague/ambiguous

11. Overbroad

12. Irrelevant Rule 26

13. Privileged

14. Embarrassing or annoying – Rule 30

15. Unreasonable cumulative

16. Obtainable from another source.

RELEVANCE- Piece of information to be relevant to a legal proposition means, according to the governing substantive law- enforced by the rules of evidence- that the information tends to prove or disprove something the law says matters.

PRIVILEGE-any matter not priviledged which is relevant Rule 26B1- evidence creates privileges protections from information from certain sources.

a. Privileges are not intended to hide relevant facts. A privilege is a protected piece of information for some reason *usually personal, like no self incrimination and use of the 5th amendment

IN ORDER TO SHOW THE NECESSITY TO GET AROUND THE PRIVLEDGED MATERIAL RULE:

1. Undue hardship by one party

2. Inability to gain information by some other means

3. Information must be relevant to the claims and defenses.

Work product doctrine – IS NOT a privilege

Is waivable by the parties

Attorney/ client privilege- waivable but is a privilege and can be protected.

EXPERT TESTIMONY ANALYSIS AND NOTES FROM CLASS:

1. Experts- are individuals that are HIRED specifically for the purpose of litigation

2. Treating physician v. testifying expert physician

3. “Any witness that may be used to support claims and witnesses” – may mean to provide all witnesses

4. Expert witnesses – Rule 26 A2- expert witnesses must be presented

5. Expert witnesses may not need to be in initial disclosure but must be disclosed soon under expert witness requirements

6. Expert witnesses MUST write written reports under Rule 26 A B 1-4

7. Regular witnesses (even if could be experts) are not required to write a written report

8. Depositions may be taken after the expert witness has written report has been received by parties, deposition may be taken by the parities interested. (Rule 26 B 4 A)


a. Must pay expert’s fee at deposition (what the expert sets the rate at)

9. Rule 30- allows notice of depositions to individuals who are a party

10. Rule 45- subpoena third parties for depositions, fact witness under rule 45, so no payment for services.

11. Expert testimony that is taken but not used in trial or not decided to use, cannot be used by either party unless: Under Rule 35 one of the exceptions applies:

a. The exceptions are – if there is no other way to get that information

b. There are exceptional circumstances involved that would allow for this to be acceptable and fair.

Retained Experts

a. Who will testify

b. Required to write reports

c. subject to discovery under Rule 26 B4A

Retained Experts who will not testify

a. only will testify or be disposed if meets one of the exceptions under Rule 26B4B

3. Fact witness- can be experts (in profession) but if they don’t write a report or are used for “the purpose of preparing for litigation” then they are a fact witness and are held under same rules as any Joe Smooe Witness.

VII. Resolution Without Trial: Default and Dismissal; settlement and Arbitration

a. Rule 41

INVOLUNTARY DISMISSAL

-No clear line.

-Given when one party cannot prove their claim

-usually given to π, if the party can’t prove their claim or if a claim is impeached

VOLUNTARY DISMISSAL

Reasons by π:

1. Forum shopping

2. incorrect claim, if unable to amend compliant.

3. change of circumstances

Δ opposes dismissal:

1. Δ doesn’t want to re-litigate the case in another court that may have less favorable rules

2. Public relations reasons

Involuntary Dismissal- Rule 41(b) – extension of SOL. Can’t afford to pursue discovery, claims are not worth pursuing, p. 472


Voluntary Dismissal Rule 41(a) – settlement, forum shopping, bigger counterclaim?, reconciliation. Def could oppose b/c it could prevent refilling or appeals, rather get binding judgment on the merits, public relations issue- name on the books showing clearing.

b. Rule 55

Default judgment details:

1. No answer after the time period of 20 days as required by rule;

a. What to do?

i. Either try to notify other side (client prob wont’ like)

ii. Wait a few more days than file for default judgment

iii. Wait to see if you receive it a few days late, even if it is late, you may be able to still get default (but court probably won’t)

iv. POLICY ON MERITS- COURTS don’t want to dismiss actions w/out giving the party the chance to present their defense. (Due process rights)

2. Waiver of Service

a. Need to wait a few days after the 60 day period to avoid issues above as well.

3. No notice after 3 months after service and complaint filed.

a. First step, File for default judgment

b. 55A- 1st step to ASK clerk to entere a default

i. Must do this by the party filing an affidavit

1. Affidavit must contain the facts and details as to service and notice requirements were made and the outcome

DEFAULT JUDGMENT PROCEDURE:

1. Ask the court clerk entry for default. (After the time of discovery) Attorney requesting the motion must submit a well supported affidavit that shows evidence of service, notice, and the amount due.

a. Amount due- costs against a Δ; the amount due is very easy to figure out, a complaint for certain sums or certain computation can be done by court.

b. If NOT certain, the clerk cannot enter a default without clarification on the sum owed to the moving party.

c. Must show that Δ received service and notice and must prove moving party has taken all steps to reach the party (in affidavit)

d. COURT CLERK DOES NOT REQUIRE ANY NOTICE TO OTHER PARTY FOR NON APPEARANCE. (Rule 5b2)

2. Apply for default judgment through court if circumstances of the case do not allow the clerk to enter the default.

3. Court then enters the default judgment if more clarification is needed:

a. Conduct on accounting


b. Determine the amount of damages

c. Establish the truth of any allegation by evidence OR

d. Investigate any other matter.

4. Then court will enter a notice of a default judgment

i. If the party filed a pre answer motion but did not answer then the person will be notified of the default judgment hearing.

ii. Examples of these situations: rule 12 motion to dismiss pre answer motion denied, but then not followed with an answer 10 days later.

iii. Notice of appearance- by party but no answer

iv. Waiver of service signed, but no answer

v. Notice is NOT required for parties who do not appear.

What constitutes as appearance for default judgment that would require notice.

What to do if the client comes to you after default notice is given, how to get case back out and to litigate the issues.

Rule 55 C- Motion to set aside the default judgment

-Ask the court to allow case to be heard, ONLY FOR GOOD CAUSE.

-Must prove good cause

-IF MOTION NOT APPROVED- THEN MOVE TO RULE 60b

Rule 55. Claim for a certain sum or computation can be done by Clerk. If damages, must be entered by court. 55(b)(1). Default rendered, but not default judgment entered. Apply to court for default judgment.

VIII. Resolution without trial; Summary Judgment; Judicial Management of Litigation

a. Rule 16

o 16 B- be sure to comply with any order fo the court including schedule orders; failure to do so can lead to sanctions under rule 37.

o 16 D- Pre-trail order- Rule 16 E- generic term for any pretrial order; this rule for LAST pre trial order; Court will use a conference at this point to set up how the trial will proceed.

o Supplants the pretrial proceedings

o Court may modify any proceedings ONLY to comport to justice

b. Rule 56

SUMMARY JUDGMENET:

1. No genuine issue of material fact or law exists in the case, then proper OR (Disjunctive)

2. Affidavits (Specific evidence) needed to be submitted in support of the motion for summary judgment.

a. Then the burden will shift to the non moving party to prove and support their fact that would not allow summary judgment.


Rule 56 motion for summary judgment on defamation claimc. Must be MSJ rather than 12(b)(6) because suggests affidavit would be offered to show truth of assertion that

Spears went commandod. Standard = no genuine issue of material fact so that defendant is entitled to judgment as a matter of lawe. Spears could probably offer contrary affidavit in response, in which she testifies that she did not go

commandoThis would create a genuine issue of material fact, precluding entry of summary judgment

In summary judgment motion a moving party may meet its burden of persuasion by demonstrating that a non moving party failed to supply sufficient evidence of a genuine dispute of material fact.

Rule 56 c- mandates the entry of s.j. after adequate time for discovery, against a party who fails to establish the existence of an element essential the that party’s case, on which that party will bear the burden of proof at trial.

Mere doubt or speculation wont do it

S.J. is appropriate when a party fails to come forward with evidence to support an essential element of the case on which the party bears the burden of proof at trail

RULE 56 (C) - Show no genuine issue of material fact….entitle to JMOL.

1. Negate element OR (DISJUNCITIVE RULE)

2. By showing an absence of evidence to support the non movement’s case. (celotex)

Implications:

-Great significance for discovery; discovery becomes more important; parties must anticipate their own and opponents party

-frivolous claims are weeded out

Result of this: motions for s.j. most likely appear after the close of discovery

S.J. – PRIMARILY A Δ’S RULE-

-Def can use this to make the π present all issues on each element on a legal claim to throw out each claim that may not survive.

THEN Burden shifts to non movement party – to show there is an issue of material facts (RULE 56 E 2)

-Party must rely on specific evidence to show there is an issue of material fact

IX. Identifying the Trier: Right to a Civil Jury Trial

Amendment 7- Seventh Amendment right to a jury trialo Historical testo Court will examine each claim

Does statute specify? Did claim exist in 1791? If no answer under either of first two, questions:

Historical analogy? Nature of remedy?

o Compensatory and punitive damages = substitutionary = legalo Injunction = specific = equitable

o Mixed legal & equitable claims – Beacon Theaters requires court to send legal claims to jury first, and judge is bound by those determinations in deciding equitable claims

7th amendment- (1791) ratified.


1. Amount should be more than $20

2. Writing of the amendment SHALL be preserved!

Amendment does NOT confer rights

Preserves jury right at common law

Key to understand: Does party have a right to a jury trial?

o How would the law resolve this issue at common law (1791)?

o What type of remedy is sought? Equitable? –No jury trial Legal?- yes jury trial. Mix- yes jury trial.

o Based primarily on the type of claim and remedy sought by π

Law of equity- no jury trial historically and not typically allowed unless equity/law issue.

(Historically called court of chancery)

-equitable remedies available

-specific performance, reformation, injunction, restitution, and recession (reverting K to another form or K invalid)

Subsitutionary relief- substitute for acts under a K, monetary damages for non performance of one party, is an equitable.

EXCEPTIIONS:

REPLEVIN- specific relief that allows a jury trial at common law; although it is an equitable issue it is now deemed LEGAL.

Legal issue- always has a right to a jury trial.

-legal remedies

-Monetary damages- damages (see damages most likely legal) good clue to legal remedy

HOW TO ANAYLZYE IF A PARTY HAS RIGHT TO JURY TRIAL?

1. Assume the action could have been brought in 1791 in a court of common law?

a. Yes jury trial b. no no jury trail (law of equity)

2. If the action was not in existence at that time then analyze:

3. Whether congress provided for a jury trial in an action for breach of that duy is unavailing

Equitable cleanup doctrine- an attachment of an equitable claim to any claim would not eliminate the availability to a jury trial.

**RIGHT TO JURY TRIAL**

1. Right for jury trial still means that parties must apply for the trial.

2. Demand must be made within 10 days of the last pretrial motion (38a)

3. Right to request jury trail is waived if not requested in the time limit (38 D)

Congress- can expand the rights for jury trials, but CANNOT take away any rights for jury trial. Bench trials can be discretionary.


EXCEPTION:

Error to do so is harmless- If the party is entitled to a directed verdict (S.J., Dis.) then there is no error because the judgment is harmless. The directed verdict would have ended the trail as well.

EQUITABLE CLEAN UP doctrine- This doctrine does not allow a party to have a jury trial if the claims are similar or overlapping (i.e. breach of K claim with atty fees claim)

A. The monetary damages claim does not automatically preclude a right to jury trial;

B. Right to jury trial for dual claims is determinative if the claims are overlapping or can be without prejudice or lost of fairness to be tried in the same court of law.

C. It will be fair if the claims are intertwined or equitable in nature.

a. Rule 38- Rule 38 Demand for Jury Trial – Demand made properly so right not waived

b. Rule 39

c. Rule 47

Just b/c questions of fact- that does not mean the Judge can’t be involved. The Judge can make determinations of fact as well SO LONG AS there are no legal claims and/or the parties have waived their right to a jury trial.

JURY SELECTION and jury details.

1. Federal juries must be unanimous; some state courts allow only majority

2. Most federal juries are 12, but some states have allowed 6 members only

3. Process is intended to be none discriminatory

4. Parties have two types of challenges: Preemptory and for cause

a. Preemptory= limited amount of challenges allowed for no reason at all to remove a juror

i. Number of challenges is defined by jurisdiction and law

b. For cause- This is an articulated reason for involving the prospective jurors bias.

i. No limit for the challenges of cause.

5. Rule 47 B. Peremptory challenge= one of a party’s limited number of challenges that need be supported by any reason, although a party may not use such a challenge in a way that discriminates.

X. TRIAL

a. Rule 49

b. Rule 50

DIRECTED VERDICT:

RULE 50- “directed verdict motion” Motion for judgment as a matter of Law.;

50 a- Court can resolve the issue of the jury is unable to do so based on evidence that may lead for more than one outcome.


50 a 2- anytime prior to going to the jury; a directed verdict or motion for matter of law can be made after all π evidence is established and prior to going to jury for final judgment.

RULE 50

1. Pre-requisite to file a 50 (B) motion must have filed a 50 (A) motion.

2. Renewed motion – must come 10 days after the entry of judgment (Rule 50 B)

3. Same standard applied to all Motion 50 movements

4. 7th amendment requires under re-examination clause- Prohibits judicial review of jury determinations per se, b/c there was a common law for directed verdict, it is legal; but the J.N.O.V. is a motion that is after the directed verdict. J.N.O.V. without the directed verdict motion is unconstitutional by the clause in 7th amendment. Using the motion 50 A prior to 50 B makes it all legal.

MOTION FOR A NEW TRIAL: RULE 50 b

Reasons to ask for a new trial:

1. Flawed Procedures

2. Flawed verdicts

PROCEDURE REASONS:

1. Outside influence or improper actions by the Juror

2. Lawyer makes an impermissible argument to jury

3. Procedural error

4. Incorrect jury instructions

5. Improper evidence admitted

VERDICT REASONS:

1. Verdict is unjustifiable

2. Verdict is against the weight of the evidence

J.N.O.V.- motion comes after the verdict Same motion –

only difference is the timing aspect.

Motion for directed verdict- motion comes prior to verdict

*** REQUIREMENT FOR J.N.O.V motion is to make a DIRECTED verdict motion AS WELL first!!!

Both motions presented at the same time to the Judge.

Judge USUSALLY WILL rule on BOTH of the motions; RULE 50 C- requires Judge to rule on both motions right away.

EFFECT OF Court of Appeals AFFIRMING A J.N.O.V.- If the J.N.O.V. is upheld then there is no need to rule on motion for new trial; b/c by allowing J.N.O.V the judgment is final and the motion for new trial in effect is cancelled (not even addressed, but for purposes, denied)

Motion for New Trial:


1. Verdict is against the weight of the evidence (high scrutiny)

a. Judge must be careful not to make witness determinations of character

2. Abuse of discretion- but only when verdict is against weight of evidence (high scrutiny)

3. Evidence is improperly admitted

4. Prejudice statements by counsel

5. Improper charge of instructions to the jury

6. New evidence on issue

7. Can only be applied for with the court AFTER the verdict and AFTER the decision by court to have the matter tried again.

8. NOT FINAL JUDGMENT on case

COURT SHOULD NOT- sit as the 13th juror; court should not make decisions about evidence presented.

SIMILARITIES AND DIFFERENCES B/W J.NO.V. AND NEW TRIAL:

SIMILAR

1. Evidence determinative and if there is no evidence for claim

2. Evidence for new trial- is not so consequential as evidence for J.N.O.V.

DIFFERENCES:

1. Trial court takes away victory temporarily – new trial

2. Motion for new trial is higher requirement to grant.

3. J.N.O.V.- gives verdict to the loser.

**If the J.M.O.V. is denied- and new trial motion denied- verdict from jury stands, appealable immediately to higher federal court.

**New trial grant can only be given if the J.M.O.V. is denied and the other motion for new trial is either conditional grant or granted.

CONDITIONAL NEW TRIALS: entire issue may not be on new trial, but part of it such as damages.

1. New trial limited to damages- may be allowed if the damages are too low or too high in the Judges discretion.

2. Remttitur- the judge orders a new trial unless the π agrees to accept reduced damages.

a. Constitutionally upheld- Supreme court- Dimick v. Schiedt 293 U.S. 474

i. b/c the court still allowed Jury to have say but are just altering their decision.

ii. Only modifies a jury judgment.

3. Additur-judge orders for more damages.

a. Has been held unconstitutional by 7th amed. Donovan v. Penn Shipping Co. 429 U.S. 648 Supreme Court decision 1967


i. b/c Takes ability and responsibility for jury away

ii. Jury does not modify a decision but changes it.

b. Some states still allow and federal court.

4. Questions for court for either Remitture (in reverse for Additur)

a. When should one grant such a reduction in damages?

b. How does one calculate the amount?

c. Rule 52

RULE 52-

1. Judge is required to find facts specifically and state separately its conclusions of law; Juries are not required to do this b/c their deliberation is private.

BURDENS :

Burden of persuasion- defines the extent to which a trier of fact must be convinced of some propostion in order to render a verdict for the party who bears it

Whichever party carries burden of persuasion must meet their burden in order to get a jury verdict.

-Doesn’t matter who has the burden, facts are as they are; therefore burden of persuasion does not matter as much;

Evidence in question- burden of persuasion is HIGH

ONLY when evidence is split is burden of production much more important.

Very important for criminal cases.

Burden of production- facts MUST show a preponderance of the conclusion based on true facts. Party has some burden of proving an aspect in the case to win.

Much more important for civil cases

Very important to be able to avoid directed verdicts or dismissal of case.

d. Rule 51

e. Rule 59

XI. APPEALS

Party must have lost some motion or ruling

Party must raise the issue in the lower court in order to reserve the objection for appeal.

EXCPETION- Ruling of occurs that is so plainly erroneous, should not have to object, but can appeal on this basis. VERY RARELY- only when the error is plain and quite risky b/c not voicing objection unless this rule applies then there is no right to appeal.

Cross appeals-

1. Party can cross appeal urge and support of any matter in the record


2. Must cross appeal to larger or lessen rights of the opponent.

BURDENS ON APPEAL:

Burdens must not go to far in order to not allow an appeal.

a. Rule 54

Rule 54(b), which allows the judge to certify interlocutory orders disposing entirely of one or more but fewer than all of the claims or parties in a lawsuit.

o Express determination that there is no just reason for delayo Express direction for entry of judgment

RULE 54 B-

1. Express direction for entry of judgment

2. Not reason for delay

Only allow multiple claims to use this rule because:

1. Allowing a party to go to Appeal prior to a final judgment undermines the district court’s soveringty

EXCEPTIONS TO FINAL JUDGMETN RULE prior to the FINAL ORDER Issued:

1. RULE 54 b- multiple claims ONLY- ALLOWS for multiple claims that fewer than all the claims or parties only upon express statement of no just delay and upon the express direction for the entry of the judgment.

a. RULE 54 b-

i. 10 DAY requirement after final judgment

ii. RECITALS:

iii. Express direction for entry of judgment

iv. Not reason for delay

b. Only allow multiple claims to use this rule because:

RULE 54B- applies ONLY to multiple claims that fewer than all the claims or parties only upon express statement of no just delay and upon the express direction for the entry of the judgment.

§ 1292 is not applicable as a basis for jurisdiction

Rule 54 b- does not apply to cases like this, which are action on a single claim, and the requirements of § 1292 b are not satisfied

b. Rule 58

DEFINING A MOMENT OF JUDMENT:

1. RULE 58- places the position on the court to enter FINAL judgment on a SEPARATE document, in order to avoid confusion. Helps parties to know when right to appeal is available.

a. No separate document then there is no final judgment entered yet

b. 58 C 2 A- over a period of 150 days has passed and no final judgment given, therefore court will satisfy the requirement b/c they are behind, so allows parties to move forward.


c. Appellate procedures- FRAA- Rule 4-a 2- Filings before entry of judgment- a notice of appeal filed after the court announces a final decision or order- but before the entry of the judgment or order is treated as filed on the date of the after the entry.

c. § 1291

1292(a)(1). That statutory provision gives the federal appellate courts jurisdiction over interlocutory appeals from decisions “granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions.”

Allows for appeal under 1291 A 1- that allows for an exception for final judgment for interlocutory appeals from U.S.D.C. canal zone, Guam, and Virgin Islands, or for Judges on injunctions or refusing to dissolve or modify injunctions, except were a direct review may be had in the Supreme Court.

What is the goal of congress for § 1291?

1. Goal was to allow for appeals that don’t conform to the final

CONCERNS/REASONS OF FINAL JUDMENT RULE:

1. depriving the district court of right to hear case ties in with efficiency

2. prevents unnecessary litigation

3. Problems with never ending litigation and cases would never end

4. The parties need to let litigation takes its course on multiple issues for sure, to see if those issues are addressed later in case.

5. Efficiency arguments- allow litigation to run its course so that all issues can be handled at once for efficiency reasons.

-allowing this would allow any district court to enter an interlocutory decision on liability which would be immediately appealable.

Congress has provided for exceptions to the final judgment rule, none are applicable in this case.

FINAL JUDGMENT RULE- 28 § 1291

FUNCTIONS:

1. Jurisdiction to Appellate court

2. Timing- defines the moment when an appeal is proper

a. Appeal is proper when it is FINAL

i. How to determine when a decision is final?

1. Final decision is one that ends the litigation on its merits but leaves nothing for the court to do but execute the judgment.

2. Ends litigation on merits but leaves nothing for court to do but execute judgment (“Catlin”)

3. Are there multiple claims or just one claim?

4. Has a remedy been sought been rewarded?


-§ 1291- will only permit an appeal if the order falls within the narrow exception to the final judgment rule- the collateral order doctrine

Collateral Order Doctrine- exception applies to orders that finally determine claims separable and collateral to rights asserted in the action, too important and too independent of the clause itself to be deferred until the whole case is settled.

3 Requirements:

1. Order must conclusively determine and disputed question

2. Resolve an important issue completely separate from the merits of the action

Be effectively unreviewable on appeal from judgment

OTHER EXCEPTIONS OF FINAL JUDEMENT RULE: After the final judgment has been entered.

Collateral Order Doctrine- exception applies to orders that finally determine claims separable and collateral to rights asserted in the action, too important and too independent of the clause itself to be deferred until the whole case is settled.

Collateral Order Doctrine- an exception to the final judgment rule- which allows the appeal of prejudgment order that finally determine claims or right collateral to rights asserted in action, and which are too important to be denied immediate review

3 Requirements: CONJUNCTIVE To determine if the claim can be vindicated.

1. Order must conclusively determine and disputed question

2. Resolve an important issue completely separate from the merits of the action

a. This is important b/c the issue must be separate so the other court does not affect the judgment on the other issues.

3. Be effectively unreviewable on appeal from judgment

Collateral Order Doctrine:

Claims of Immunity cannot be vindicated on a Appeal from a final judgment.

Claims of Jurisdiction- rights CAN be vindicated at the end of the case.

d. §1292

e. 1292(b) interlocutory appeal could possibly be available if the judge made the requisite findings:o Order involves controlling question of law as to which there is substantial ground for difference of opiniono Immediate appeal from the order may materially advance the ultimate termination of the litigation

SECTION 1292 B-

o Controlling question of law as to which substantial grounds for difference of opinion

o Immediate Appeal may materially advance ultimate termination of litigation

o TECHNICAL REQUIREMENTS

Meets within time limits

District court must state that both requirements of 1292 B are satisfied.

District Judge has to be of the opinion that an appeal would immediately effect the case

THEN court of Appeals must agree to take the case.


COURT OF APPEALS AND DISTRICT COURT JUDGE MUST BELIEVE THAT THERE IS A CONTROLLING QUESTION OF LAW AND THAT A SUBSTANCIAL GROUND FOR DIFFERNCE OF OPINON.

INTERLOCCUTORY APPEALS-

Alternative basis to Collateral Order Doctrine:

§ 1292 B-

Judge must state- substantial law with a difference of opinion and order of an appeal would materially advance the ultimate termination of litigation, and it must be in writing.

Judge can determine this and send it up to court of appeals.

MANDAMUS

Judge must perform a specific act.

The issuance of the writ means the party is mandated to do or not do a certain thing.

Very drastic remedy and is only used in rare occasions

Makes the Judge or court make a certain determination that allows the party to get a writ to try and get an interlocutory appeal.

RULE 52- bench trial – must issue court opinions of facts and law;

HARMLESS ERROR=

Errors or defects do not have a substantial right on the party.

The error does not affect the outcome of the case

CONTINUM OF SUBJECT TO REVIEW

From one side (100% to o%)

100%- De novo review- review issues of fact and law; but usually used more for issues of law

Judge fact determined- Clearly erroneous standard applied for fact

Jury findings issues- Reviewed on reasonableness and must show substantial evidence

0%- Agency Determination; NO REVIEW

XII. Respect for Judgments: Claim Preclusion

CLAIM PRECLUSION Requirements:

1. Same claim

2. Same party

3. Final Judgment

4. ON the merits

5. GET ALL OF THE ABOVE THEN CLAIM PRECLUDED, DON’T GET ALL ELEMENTS THEN NO NEED TO GO THORUGH ANALYSIS; CLAIM IS NOT PRECLUDED.


TWO TESTS: (States may required different tests)

1. Same transaction test- Il. State law- Requires the claims be from the Same Transaction.

Same transaction- broadly defined as the same time, space, origin, and motivation a tranx is an occurrence that is the basis for a cause of action under the law.

Would the case be litigated easily as one transaction?

Modern view- all claims arising out of the same core of operative facts all must be litigated in one law suit and is barred to be raised under the traditional approach by state it is not

2 . Same core of operative facts- Joinder rules- Allows a more broadly defined issue.

a. Joinder can be mandatory b/c if the party fails to bring a claim that claim may be precluded later.

RESTATEMENT § 24- similarly motivated and whether claims from a convenient trial unit

Claim that does not exist until AFTER the law suit are not precluded.

Claim preclusion protects Δ from being harassed and the financial burden

Claim preclusion is necessary and proper when evidence for claims come from the same core of operative facts and the parties are identical

-makes no difference if there are different legal theories

Same transaction- broadly defined as the same time, space, origin, and motivation a tranx is an occurrence that is the basis for a cause of action under the law.

ELEMENTS:

1. Same claim

2. Same parties

3. Final judgment

4. On the merits

ELEMENTS REQUIRED FOR RES JUDICATA

1. Existence of a final judgment on the merits in the particular case

2. Decisions in consent judgments or other binding judgments such as arbitration are final and will not be able to be brought up again.

CLAIM PRECLUSION ELEMENTS:

1. Same parties

2. same claim- same transaction/common core of operative facts

a. If the parties are in Privity? = yes, then same parties

3. final judgment

4. On the merits


A person is in Privity with another person when he is so identified in interest with another that he represents the same legal right as another person; Privity means one whose interest has been legally represented at the time.

Privity means one whose interest has been legally represented at the time.

Collateral Estoppel- prevents parties from retaliating acts, issues in the first suit that were fully litigated or should have been. Can only be asserted against a party in a prior adjudication identical with the one presented in the action in question

1. Was the issue decided in a prior adjudication, identical to the ? at issue?

2. Was there a final judgment on the merits?

3. Was the party against whom the plea is asserted a party or in Privity with a party to the prior adjudication?

4. Was the issue in the first case completely, fully, and fairly litigated?

Issue preclusion arises from a different cause of action and prevents parties or the privies from re-litigating acts and issues in a second suit

Privity- very important-

1. A person in Privity with another when he is so identified in interest with that other person that the represents the same legal right

2. General rule- agents and principles do not have mutual or successive relationships to rights of property and are not Privity.

3. What is the nature of the relationship b/w the people who are parties and the non party?

a. Was the non party represented?

b. Did the non party have notice and an opportunity to be heard?

c. Would it be fair

d. Majority= mutual or successive relationship b/w the parties

e. Dissent view- Expanded the definition- measures of fairness; whether the relationship b/w the parties is close that would be sufficient to bind them.

f. Substantive legal relationships- any legal relationship

g. Co-ownership, joint obligations, vicarious liability- relationships recognized and easy to ascertain

h. Express agreement to be bound by a decision to which one is not a party- contracts and other legal documents showing the relationship

i. Instances of “procedural representation” – represented in procedure (i.e. class action case, not actually litigate or present but represented virtually)

j. Principal is not bound by the judgment obtained against an agent though this is not the case when principal enters the litigation.

Procedural Steps for party to put an issue of claim/issue preclusion:

1. On the answer the party needs to raise an issue of Res Judicata under Rule 8C.

a. Then establish if it is either Estoppel (issue) or Res Judicata (claim)

b. MUST be asserted in the answer or the “record is not preserved” and the motion is lost.

2. File a motion of Summary Judgment under Rule 56


a. Attach the record of the previous case as evidence of the claim on the complaint and the final judgment ruling to show there is evidence this claim was litigated and decided.

3. Must have a final judgment – If the Court made a final ruling on this claim.

4. Must be on the merits – must not be an issue of fact that has already been decided.

5. If all these issues are met, the Summary Judgment order will most likely be granted if it is agreed all these elements are met.

XIII. Respect for Judgment: Issues Preclusion and Boundaries and Repose

ISSUE PRECLUSION:

1. Same issue

2. Actually litigated and determined

a. NOT required for CLAIM preclusion only for ISSUE preclusion

3. Essential to

a. essential to the first litigation

b. essential to the final judgment (Try inverting the judgment for one party, and if the same outcome, then than it is NOT essential to the judgment.)

Alternative findings to support the judgment- **modern view most courts don’t allow alternative findings.

Restatement 1- Both are given preclusive effect (If essential to the judgment)

Restatement 2d- the judgments are final so long as an Appeals court Affirms.

4. Final Judgment

5. Binding between same parties *

-On a same or different claim.

-MUTUALITY EXCEPTION- Trial courts have broad discretion to apply the doctrine of issue preclusion even if the Δ is deprived of the jury trial.

TO DETERMINE WHETHER THE EXCEPTION APPLIES:

1. Who is suppose to be bound, who is requesting the preclusion effect?

a. Non party to first proceeding- then no preclusion allowed at all

b. If it is a party to the first proceeding then there may be preclusion if all other factors are met.

2. Which kind of non-mutual issue preclusion?

a. Offensive or Defensive?

i. Offensive- Is the party using this preclusion to set their prima facia case?

1. Offensive- Go through other steps of analysis; this type of preclusion is suspect.

ii. Defensive- Is the party using the preclusive effect as a defense or counter attack? EXCEPTION!!


1. Defensive- usually ok, not as much analysis ; Preclusion more likely

3. Whether the party had the availability to join the first action?

a. If yes, then issue preclusion should be used, Tries to stop “wait and see” π, who may seem to get a judgment when they did not take part in case.

i. Economical concern- Wait and See π have economical effect b/c it does not allow claims to be joined (that maybe should be for efficiency) and it opens the Δ to litigate multiple claims from multiple parties on different situations.

b. If No, then the issue should not be precluded b/c they could not join the 1st claim.

4. FAIRNESS?

a. Did the Δ have an incentive to litigate the claims against them vigorously?

i. If yes, then judgment should stand; and should have a preclusive effect.

ii. If no, then maybe. Go to the next question

b. Are there inconsistent judgments that are established?

i. If no, then no worries….claim precluded.

ii. If yes, then preclusion effect should NOT occur; b/c the judgments are differing.

c. Does the 2nd action filed afford new procedural opportunities or evidence for the party?

i. If yes, then possibly claim preclusion should not apply.

ii. If no, then claim preclusion should apply

a. Rule 60

Rule 60B- allows for the court to set aside already decided judgments under certain circumstances.

b. Rule 61