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Civil Procedure II
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Civil Procedure II Outline
I. Discovery
A) Discovery: The pre-trial devices that can be used by a party to obtain facts and information about this case in order to assist the party’s preparation for trial.
1) Depositions: FRCP 30 & 31 - a pre-trial device by which one party asks oral or written questions of the other party or of a witness for the other party, conducted under oath outside the courtroom. Limited to one day of 7 hours and a maximum of depositions unless otherwise granted by leave of court or stipulation of the parties. Affidavits singed under perjury, based on personal knowledge. Must be competent.
Use at trial or a hearing: FRCP 32
a) To impeach the testimony of the deponent as a witnessb) If the deponent is greater than 100 miles from the place
of trialc) Unable to testify because of age, sickness, death,
incapacitation, etc.b&c = unavailability
2) Interrogatories: FRCP 33 - a set or series of written questions drawn up for the purpose of being submitted to a party to obtain information regarding the case. Limited in number to 25 unless otherwise granted by leave of the court or stipulation of the parties. Affidavits signed under perjury, based on personal knowledge. Must be competent.
a) Interrogatories cannot be directed to non-parties. b) A party must answer the interrogatories according to the
best of the whole party’s knowledge not just one person being deposed.
3) Protective Orders: FRCP 26(c) - any order of a court whose purpose is to protect a person from further harassment by a party seeking information. To protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense. The producing party is the one that requests a
protective order from the requesting party. Protective orders are filed with the court.
Three requirements:a) A motionb) A certification that the parties have attempted to confer in
good faithc) Good cause or reason to protect the information request
The courts have broad discretion to balance the interests of the parties when discovery is in dispute and they have substantial latitude to fashion protective orders. (Marrese v. American Academy of Orthopedic Surgeons)
4) Production of documents and things: FRCP 34
a) Requests to produce things in a parties custody or control that are relevant to the pending action
b) A party may be required to permit entry onto their land for relevant testing / inspection.
5) Physical and Mental Examinations FRCP 35
a) A party must show, on motion, the conditions are in controversy (a claim or a defense) and good cause for the need of an examination before one will be allowed by the court. Without good cause, a court cannot allow an examination. (Schlagenhauf v. Holder )
b) The party seeking the examination must provide the other party with a copy of the written report of the examiner setting out the examiner’s findings.
6) Requests to Admit FRCP 36
a) Definition: A party may serve on any other party a written request for admission as to the truth or genuineness of any matter or document described in the request which the party must admit or deny.
b) Requests for admission are deemed admitted unless responded to within 30 days. The adverse party can file
written objections to those requests that they have a legal basis for not answering.
7) Subpoenas FRCP 45
a) Definition: A court order directed to a non-party who may be a witness or who may have information about the case requesting them to produce information or testify
Device Rule Definition LimitsOral/Written Depositions
30/31 Oral or written testimony of a specific witness. If it is a party, only notice is required. If non-party a subpoena is important but not required. Affidavit.
Only 10 allowed without leave of court or stipulation of parties
1 day of 7 hours, unless leave granted or the parties agree otherwise
Interrogatories (only parties)
33 Written question requests submitted by one party to another party.Affidavit.
Only 25 allowed without leave of court – leave usually freely given
Document production requests or requests for evidence, or entry on land from adverse party
34 A party may request another party to: Produce any document or information in its custody, possession, or control; or permit entry, upon notice, for inspection & surveying (subject to scope).
No limit in number.A party is required to produce them in the order kept by the party in the ordinary course of business, or direct party to the matter requested by the adverse party.
Physical & Mental Examinations
35 Examinations of a witness
A party must show the conditions are in controversy and good cause for the examination.
Requests for admission from adverse party (only parties)
36 Statements propounded by one party requesting another party to admit or deny
No limit in number
Subpoena (duces tecum)
45 A writ commanding a person to appear or provide evidence
None
B) Rule/Scope of Discovery: FRCP 26
1) Mandatory Disclosures: Rule 26(a)
a) A party must, without awaiting a discovery request, provide to other parties:
i. The name, address, and telephone number of each individual likely to have discoverable information that the disclosing party may use to support its claims or defenses;
ii. A copy or a description of all documents, electronically stored information, and tangible things in the possession of the party and that the disclosing party may use to support its claims or defenses;
iii. A computation of any category of damages claimed by the disclosing party, making available for inspection and copying as under FRCP 34 the documents or other evidentiary material, not privileged or protected from disclosure, on which such computation is based, including materials bearing on the nature and extent of injuries suffered; and
iv. Any insurance agreement under which any person carrying on an insurance business may be liable to satisfy part or all of a judgment which may be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment.
b) Must be made at or within 14 days after the pre-discovery conference (timing may be stipulated differently by court or agreement of the parties)
2) Discovery Scope and Limits: FRCP 26(b)
a) FRCP 26(b)(1)
A party may seek discovery of any relevant, unprivileged information if it is reasonably calculated to lead to the discovery of admissible evidence.
Inadmissible information is discoverable if it is relevant to the subject matter of the case (the broad scope of discovery).
If there is dispute, the information is discoverable if it will lead to discovery of admissible evidence. (Lindberger v. General Motors Corp.)
b) FRCP 26(b)(4): Experts
a. A party may depose any person who has been identified as an expert whose opinions may be presented at trial
b. A party may depose facts known or opinions held by an expert who has been retained in anticipation of litigation who is not expected to be called as a witness at trial upon a showing of exceptional circumstances where it is impracticable for the party seeking discovery to obtain facts or opinions on same subject by other means.
3) Time Line of Discovery: Rule 26(d)
a) Discovery begins after pleadings have been filed, and after a pre-discovery conference under 26(f) has been held, unless there is an agreement between the parties
b) Methods for discovery can be used in any order unless, upon a motion the court orders otherwise, for convenience of the parties and witnesses and in the interest of justice
4) Duty to Supplement: Rule 26(e)
a) “A party is under a duty to supplement if the party learns that in some material respect 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 discovery process or in writing.”
b) Once a party has information, a party is under a duty to supplement missing or incorrect information. If in a later response a producing party submits information that was missing or incorrect, they do not have to amend incorrect responses. This must be done within a reasonable time as soon as it is discovered.
5) Planning for Discovery: FRCP 26(f)
a) The conference must be held as soon as practicable and at least 21 days before a scheduling conference under 16(b) is held to discuss…
1. Nature and basis of their claims and defense2. Discuss prompt resolution or settlement of the case3. To arrange for 26(a) disclosures, and 4. To develop proposed discovery plan
6) Signing of Disclosures: FRCP 26(g)
a) Every disclosure shall be signed by at least one attorney of record and whose address shall be stated. An unrepresented party shall sign the disclosure and state the party’s address. It is a certification that to the best of the signer’s knowledge, the disclosure is complete and correct at the time it is made.
b) Every discovery request, response or objection made by a party represented by an attorney shall be signed by at least one attorney of record and whose address shall be stated. An unrepresented party shall sign the request, response or objection and state the party’s address. It is a certification that to the best of the signer’s knowledge, the request, response or objection is:
i. Warranted on existing law or a good faith argument for the extension, modification or reversal of existing law;
ii. Not posed for any improper purpose, such as to harass, cause unnecessary delay, or increase in the cost of litigation
iii. Not unreasonable or unduly burdensome or expensive, given the needs of the case, the discovery already made, the amount in controversy, and the issues of importance at stake
c) If a certification is made without substantial justification in violation of the rule, reasonable attorney’s fees may be imposed.
C) Early Discovery: FRCP 27
A person may, by deposition, perpetuate her own testimony or that of another in regard to any matter that may be cognizable in a U.S court by filing a verified petition and serving a copy of the petition and notice for an order for pre-action discovery on each person named as an adverse witness at least 20 days before the hearing.
Must show:1) Expects to be a party to the action but is unable to bring the
action at this time2) Shows the subject matter of the action and the petitioners
interest in it3) Facts that the petitioner plans to perpetuate 4) Names or description of adverse parties and addresses as far as
are known5) Names and addressees of the persons to be examined or
substance of examination
D) Sanctions for Discovery: FRCP 37
1) Motion to Compel – If a party fails to provide discovery or provides incomplete discovery, the other party may move to compel discovery.
Requirements:
a) Motion – can be oral or written to a magistrate who then sends a recommendation to the district court judge who decides the motion
b) Certification (may be oral) that the parties have met and tried to resolve the discovery dispute.
c) Good cause
Why not produce information?Not relevant
Sensitive information Privileged Subject to attorney work productPrepared in anticipation of litigation
2) Sanctions – Issued for failure to comply with an order, failure to disclose mandatory disclosures, failure to participate actively in a discovery plan, and for the spoliation of evidence.
The court may:
a) Order matters to be treated as admittedb) Prohibit any party from supporting or opposing any
designated claims or defensesc) Strike pleadings, stay or dismiss the action, or give a
default judgmentd) Hold the party or witness in contempt e) Assess reasonable expenses incurred because of refusal to
comply, including attorney’s fees
More sanctions are given under Rule 37 because it gives parties more opportunity to bring up sanctions for failure to comply with the courts orders or discovery motions.
E) Limitations to Discovery
1) Attorney-Client Privilege - privileged Information is not discoverable if it meets the elements below:
Elements:
a) The holder of the privilege must be a client or seeking to be a client
b) The other party must be a member of a bar, or acting as other persons’ attorney
c) The communication must relate to a fact of which the attorney was informed by the client outside the presence of strangers for the purpose of securing an opinion on the law, legal services, or assistance in a legal proceeding.
d) The client must claim the privilege and must not have waived it.
Attorney client privilege information is guarded through protective orders, but attorney’s are required to produce a privilege log stating there are documents that respond to the requests of the adverse party, but they are privileged [FRCP 26(b)(5)].
The privilege only applies to communications between a client and an attorney who is acting in his professional capacity. (Upjohn v. U.S.)
The communicated information must have been intended to be confidential and others must not be present when it occurs. (Hickman v. Taylor)
2) Attorney Work Product (privileged info) Prepared in anticipation of litigation 2 types
1. AbsoluteThe mental impressions of attorneys are
absolutely privileged, such as strategy. Example: memo in file, depositions.
2. Qualified/ConditionalThe mental impressions of a consultant (experts
– 2 types, consultant (either in their head or a written report fall within conditional work product) and designated trial expert) retained by the attorney.
Requesting party can obtain attorney work product only if:(Conditional upon)
a) demonstrate a substantial need for the information, andb) undue hardship to acquire the substantial equivalent of
the information by other means
3) In Anticipation of Litigation – governed by Rule 26(b)(3) - material prepared in preparation for litigation is protected but not privileged; attorney work product is privileged.
Protected information is discoverable on a case by case basis only if:
a) There is a substantial need to obtain the information, and
b) The information cannot be obtained except by undue hardship
The court shall protect against the disclosures of mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigationNon testifying expert’s reports fall under attorney work product.
3 types of Witnesses1. Lay witnesses (both take depos)2. Expert Consultants - employed by a party or retained to assist the hiring lawyer to assess the technical aspects of a case. May consult multiple consultants. (substantial need/undue hardship)3. Experts who have been designated to testify at trial, resulting in the waiver of conditional work product protection. (both take depos)
II. Case Management
A) Pre-trial Conferences: FRCP 16
1) Definition: A meeting between the attorneys and the judge, for purposes of planning trial, facilitating settlement, or other reasons to preserve judicial economy.
2) Rule: A judge is required to hold only one pre-trial conference, but has broad discretion to hold as many as necessary. Within 120 days of the filing of the complaint, judges must issue a scheduling order limiting time for motions, discovery, and other matters. Parties must stick to the scheduling order of the court unless they confer to change it. A court may sanction a party for not complying with pre-trial orders.
III. Dispositive Motions
A) Summary Judgment: FRCP 56 (used for all 8 (c) affirmative defenses – including statute of limitations/most common)(adding/injecting new information)
1) Definition: A dispositive pre-trial motion which, if granted, adjudicates the case on the merits. Inferences are favored to the non-moving party. Can negate the other parties claim.
2) Rule: Summary judgment may be granted if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. (Lundeen v. Cordner)
a) Genuine = An issue is genuine if there is conflicting evidence that could demonstrate that the parties have a dispute as to that particular issue and the evidence is such that a reasonable jury could return a verdict for the non-moving party. The evidence must be objectively factual and not inferences drawn from motive, intent, or feelings. (Cross v. U.S.)
b) Material = A fact is material if the fact would have an impact on jury deliberations and the outcome of the trial.
c) Fact = must be a fact and not opinion or an inference of motive (Cross v. U.S.)
i. The judgment is all based on the state of the evidence.
ii. All inferences of fact are viewed in a light most favorable to the non-moving party!
3) The burden for proving summary judgment is shifting. It begins with the moving party to prove there is no genuine issue of material fact, then shifts to the non-moving party to prove there is a genuine issue of material fact. (Celotex Corp. v. Catrett)
4) Celotex Corp. v. Catrett – Once the movant shows evidence there is no genuine issue of material fact, the burden of proof shifts to the non-moving party to show evidence there is a genuine issue of material fact. The movant need not show any evidence besides pleadings (no affidavits needed), but the non-movant must produce evidence countering movant’s pleadings. Catrett failed to produce evidence proving the element of causation (her burden of production)
-Affidavits – should conflict (double check this info)37:38 prob. 2 recording
- When not in conflict court will grant summary judgment.
*****************add info on beacon and right to jury trial*************
Motion Rule Standard When Inferences Effect if Granted
Dismiss (only available to defendants!)
12(b)(6)
Failure to state a claim
Filed before the answer / responsive pleading
Allegations of complaint are true
Dismisses Complaint usually without prejudice / occasionally with prejudice
Summary Judgment (either party can file)
56 Judgment as a matter of law and there is no genuine issue of material fact
20 days after complaint served / cutoff for dispositive motions per 26(f) Conference.
Judge construes facts in light most favorable to non-moving party.
Judgment on the merits or on that cause of action is entered – however, partial summary judgment is available.
Voluntary Dismissal
41(a) Only for Plaintiff and it is voluntary
Any time before defendant answers or by stipulation
N/A 1st time Dismissed w/ out prejudice, 2nd time it’s an adjudication on the merits
Involuntary Dismissal
41(b) Defendant moves for Failure to prosecute
Anytime the plaintiff fails to take action, fails to follow an order, fails to appear, or fails to comply with the Rules.
N/A Adjudication on the merits.
Default Judgment
55 Brought by the Clerk or Plaintiff when defendant fails to appear or otherwise defend (a default may be obtained after an answer)
Brought by the Clerk or Plaintiff when defendant fails to plead or otherwise defend
Notice period of 3 days…to give defendant his day in court
Operates as a final judgment and plaintiff gets paid. May be set aside if “good cause” is shown through affidavits.
Judgment on the Pleadings (not used often) plaintiff or Defendant may move
12(c) Defendant has an absolute legal defense; or court has no subject matter jurisdiction
After the pleadings Allegations from both pleadings are taken as true
Judgment on the merits
IV. Trial by Jury – (FRCP 38, 48)
A) Right to a Jury Trial
1) The 7th Amendment preserves the right to a jury trial in federal courts where the amount in controversy exceeds $20 and is also given under FRCP 38(a).
2) Trial by jury is not contingent upon the words in the pleading. If the cause of action involves money damage (equitable) it is sufficient to submit the case to trial by jury.
3) All administrative agencies or courts created by Congress are not given the right to trial by jury unless written into the rules. If the court is created under the Constitution then a trial by jury is granted.
B) Requirements: FRCP 38
A party who wishes to have a trial by jury must:
1) Make a demand in writing within 10 days of the final pleading and must be indorsed
2) Must serve the demand on all parties3) The right to jury trial is waived if a demand is not timely made
C) Trial by Jury or the Court: FRCP 39
Decisions Judge
Jury
Issues Of Law / Interpretation 1
Of Fact2
Remedies In Equity
4
At Law / Money Damages 3
1) By Jury:
When trial by jury has been demanded the trial of all issues so demanded shall be by jury, unless:
a) the parties or their attorneys, by written stipulation filed with the court or by an oral stipulation made in open court and entered in the record, consent to trial by the court without a jury, or
b) The court upon motion or of its own initiative finds that a right of trial by jury does not exist under the Constitution or statutes of the United States.
2) By the Court:
Issues not demanded for trial by jury shall be tried by the court; but, notwithstanding the failure of a party to demand a jury in an action in which such a demand might have been made of right, the court in its discretion upon motion may order a trial by a jury of any or all issues.
D) Jury Size and Composition: FRCP 48
1) The court shall seat a jury of not fewer than six and not more than twelve members and all jurors shall participate in the verdict unless excused from service by the court. Unless the parties otherwise stipulate, the verdict shall be unanimous and no verdict shall be taken from a jury reduced in size to fewer than six members.
2) Steps to Jury Trial:
a) Jury Summonsb) Jury poolc) 12 people from the pool are selected and impaneled d) Voir dire (vwar dear) is then conducted to make sure the
people selected can be an impartial fact finder
3) Voir Dire: The process by which a jury is selected. (vwar dear)
Two standards for dismissing jurors:
a) For cause – unlimited in number, but on the basis of the jurors partiality. Ensure the juror is not biased.
b) Peremptory challenges – limited in number and no reason needs to be stated. 2 suspect classes Can’t use gender or ethnicity for basis in a peremptory challenge. Race & Gender.
(if you’ve lost on a for cause dismissal, use the peremptory challenge or else you lose it)
E) Demand for Judgments: FRCP 54:
A judgment by default shall not be different in kind from or exceed in amount that prayed for in the demand for judgment. Except as to a party against whom a judgment is entered by default, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in the party's pleadings.
F) Jury Instructions
1) Definition: Instructions by a judge to a jury concerning the law of the case.
a) Both parties recommend instructions to the judge, then the judge formulates the appropriate instructions. (Kennedy v. Southern California Edison) Look at Harmless Error.
b) Instructions come from an applicable prior case or statutec) It is rare for parties to agree on all jury instructions.
judge has an obligation to frame the jury instructions properly
V. Verdicts: FRCP 49
A) A verdict is an advisory decision – not a final judgment.
Three Types:
1) General Verdict - A general finding of liability without articulating why. Plaintiff wins ‘x’ money.
2) Special Verdict - The jury answers a list of interrogatories, submitted by the judge, requesting the jury to make specific findings of fact. The court then takes the findings of fact and
applies them to the law. Then, the ultimate verdict is entered by the court. Special Verdicts trump General verdicts.
3) General Verdict with Special Interrogatories - A yes/no answer by the jury with questions to the jury to articulate why they found the way they did.
a) Nollenberger – Just because the general verdict was inconsistent with the special interrogatories does not mean the court can intervene and calculate its own verdict because there were other things the jury could have considered that they weren’t asked.
b) Huckle v. Kimble – The jury must tie the verdict to the evidence
c) Roberts v. Ross – When a case is tried without a jury, the court must come to a verdict through findings of fact and conclusions of law on its own.
B) Judgment : Rule 58 - regardless of whether judgment is entered, 150 days after a verdict judgment is considered valid.
VI. Judgment as a Matter of Law (directed verdict) (JMOL)
A) Definition: A dispositive motion brought after trial has begun and before the case is submitted to the jury. A verdict entered by the court against a party who fails to establish a prima facie case to meet the burden of proof. Use to attack the opponent.
B) Rule: A judge may grant JMOL if there is no legally sufficient basis for a reasonable jury to find in favor of the non-moving party. However, judges will be very hesitant to take a case from the jury. Insufficiency of evidence. Jury cannot make decisions based on speculation. Juries can make decisions based on:
1. facts and 2. reasonable inferences.
VII. Renewal of Judgment as a Matter of Law (n.o.v.)(motion for judgment):
A) Definition: A dispositive motion filed by a party after their motion for JMOL has been denied and within 10 days after judgment is entered.
B) Rule: A RJMOL is granted by a court if, after the case goes to jury, the judge finds there is no legally sufficient basis for a reasonable jury to have found in favor of the non-moving party. Jury - facts and reasonable inferences.
C) Remedies:1) The entry of judgment, or2) Granting of a new trial. 3) A judge can order a special verdict or special interrogatories
between a JMOL and a RJMOL.
D) Standards:1) Galloway v. U.S. – Galloway failed to meet his burden of
production and thus, a directed verdict was proper. Juries cannot make large inferential leaps in evidence.
2) Denman v. Spain – Denman failed to meet her burden of production. Judgment notwithstanding the verdict is proper when the plaintiff has failed to meet their burden of production.
3) Daniel J. Hartwig Associates, Inc. v. Kanner – see case
Harmless Error vs. Prejudicial Error1) Jury instruction is wrong – Error has to be prejudicial
- Preponderance of evidence, more probable than not that the error caused the jury to make the decision it did. Misworded statement of substantive law.
- Usually will get a new trial. - Prejudicial Error will allow for a new trial.
2) Every trial will have errors. – Harmless. - jury would still have found as it did either way.
FRCP 64 – State Provisional Remedies. - provisional remedies are available to the courts
where the court is, to the extent that the state remedies are not inconsistent with any other federal rule or statute.
- security attachment, prevent D from transferring property.
Purpose of provisional remedies = to preserve status quo pending the outcome of litigation.
- Legal Remedy = damages
1) Attachment if you can’t find me, then you can attach in a state court.
2) Preliminary Injunction/temporary restraining order to prevent a defendant from doing something. Or to make them do something. Don’t have a jury, but there is a judge to give injunction. The pitch – “irreparable damage” to Plaintiff. As long as harm to Defendant is not outweighed by Plaintiff’s judgment.
3) Difference between Prelim injunctions VS. a TRO is time. TRO comes almost immediately.
4) Receivership an expert in the area to keep an organization afloat while owners are at conflict. Preserve the property in the same manner that the owner or possessor would be bound.
5) Lis Pendens to cloud the title. Allows P to protect herself against the transfer of contested property – prospective purchases are advised of the ongoing litigation.
Supplementary Proceedings- Post-trial deposition- within a certain days, D will be asked certain
questions about where the property is, if any has been transferred, before, during or after the trial.
Dispositive Motions in Trial or Post Trial.
Rule
Standard When Inferences Effect if Granted
Judgment as a Matter of Law (JMOL)(Directed Verdict)
50(a) No legally sufficient basis for a reasonable jury to find in favor of the non-moving party.
Usually filed by a D, at the close of P’s evidence. P can file if D has a counter-claim. Anytime before case is submitted to the jury.
N/AThe judge basically weighs the evidence, because the P has already presented their case. The judge can delay ruling on JMOL until the end of the D’s case.
Judgment Entered.
Can also have a partial JMOL
So one sided that a reasonable jury can only find in favor of the moving party - the judge can take the case away from the jury
Renewed Judgment as a Matter of Law (RJMOL)(JNOV)Renewed Motion for Judgment
50(b) Same standard after party loses original motion.
After a 50(a) motion and up until 10 days after entry judgment. A 50(a) must be filed first.50(b) filed after. must have filed a 50 (a) pre-motion trial before 50(b).
N/A Judgment Entered, or New Trial Granted.
New Trial 59 For any reason previously granted in the court, or if there is no harmless error.
Reversible, discretionary, but not harmless error,
Can be filed as soon as the trial starts – when reversible error occurs.
Filed within 10 days after trial
Wide Latitude and Discretion Given to the Court.
New Trial Granted (not often appealable)
VIII. Relief From Judgment
A) Rule 60
1) Rule: Upon motion, a court may relieve a party or a party’s legal representative from a final judgment, order, or proceeding for the following reasons:
2) Filed: Filed after the judgment is entered and is generally provided for procedural error
B) 60(b)(1): Excusable Neglect
Four part test: (Briones v. Riviera Hotel & Casino)
1) Prejudice to Opposing Parties2) Length of delay and its impact3) Reason for delay4) Good faith
C) 60(b)(2): Newly discovered evidence
1) Rule: A motion for relief from judgment on grounds of newly discovered evidence must meet the following requirements before it can be granted (all are required): The new evidence will probably change the result on a new trial;
a) Must have been discovered since the trial;b) Must not have been discoverable before trial by due
diligence;c) Must be material;d) Must not be merely cumulative or impeaching. e) Must relate to facts in existence at the time of the trial
(Patrick v. Sedwick)
D) 60(b)(3): Fraud, Misrepresentation, or Misconduct of Adverse Party (perjury)
1) Extrinsic fraud - prevents a party from making a claim or defense to further the case (i.e. inducing a party not to file a claim until the statute of limitations has run)
2) Intrinsic fraud - occurs during the trial process itself.Both extrinsic and intrinsic fraud are covered by the rule if motion is filed within 1 year of judgment – this includes perjury.
E) 60(b)(4): Void Judgment
1) A void judgment (i.e. no SMJ). Must be at the time the judgment was entered)
F) 60(b)(5): Judgment satisfied, vacated, remanded, etc.
G) 60(b)(6): Discretion of the court “catch all provision”
Rule Grounds When Made Who Makes It
60(a) Correction of Clerical Error Anytime Judge / Motion of Party
60(b)(1) Mistake, Inadvertence, Within 1 year of Party Moves
Surprise, or Excusable Neglect.
judgment
60(b)(2) Newly Discovered Evidence Within 1 year of Judgment – not trial
Party Moves
60(b)(3) Fraud (Smith), Misrepresentation, Other Misconduct
Within 1 year of Judgment
Party Moves
60(b)(4) A void judgment (no SMJ – must be at the time the judgment was entered)
Within a reasonable time
Party Moves
60(b)(5) Judgment either satisfied, or judgment has been vacated, modified, remanded, or another case reverses judgment.
Within a reasonable time
Party Moves
60(b)(6) Discretion of the Court for any other reason – “catch all”
Judge must article his reasons for entering judgment
Within a reasonable time
Party Moves
IX. Appeals
A) Appeals Generally:
1) Due process enables a litigant to appeal – to ensure justice and fairness.
B) Final Decision Rule:
1) Authority - Appellate courts are courts of limited jurisdiction. They obtain their authority from Congress by way of 28 USC §1291.
2) Rule: Pursuant to §1291, an aggrieved party may appeal as of right a final decision of a trial court if:
a) An error appears in the trial court record,b) Prompt objection was made by the party seeking appeal,c) No harmless error (error must affect substantial rights of
aggrieved party), and
d) The brief must contain the error with evidentiary support from the trial court proceedings.
3) Purpose of the Final Decision Rule: (FRCP 1 = judicial economy)
a) To prevent piecemeal litigationb) To prevent the same issue from being decided at the same
time and having different results.c) Because trial courts usually decide things correctly – they
must be given great deference.
C) Exceptions to the Final Decision Rule
1) Multiple Claims or Parties: FRCP 54(b)
a) Rule: If there is more than one claim at issue, or multiple parties and a district court decides only some of them with finality (less than all claims/merits), an appeal is available once the judge certifies there is no just reason to delay judgment (it wouldn’t be fair to delay appeal) and that the decision is final.
i. Liberty Mutual Insurance Co. v. Wetzel – when a case is bifurcated to determine liability and damages, but there is only one claim (a single cause of action), the decision as to one issue is not a final decision about the case and 56(b) does not apply. Furthermore, the ignoring of the injunction cannot be appealed under 1291(a)(1). Also, the judge did not certify an appeal under 1292(b).§1291 – Court of Appeals has jurisdiction of appeals from all final decisions (less than all claims/merits) of the district courts.
ii. Sears, Roebuck & Co. v. Mackey – The court’s dismissal of the antitrust claim satisfies as an appealable final decision because other claims were pending that were not tied to the antitrust claim and there is no just reason for delaying the appeal.
iii. Cold Metal Process Co. v. United Engineering & Foundry Co. – When a claim and counterclaim exist and the court decides the initial claim without deciding the counterclaim, an appeal of a the initial
claim is proper if the claims are severable and there is no just reason for delaying appeal. Rules and supreme ct. hasn’t provided rules for what is “final”
iv. Curtis – Wright v. G.E. – Partial summary judgment is a final decision under 54(b). ???? Partial summary judgment – when there is a partial summary judgment, if it is on the issue of liability then an appeal is unavailable.
2) Collateral Orders (parallel to the merits)
a) Definition: A collateral order is any order that does not stop the litigation if the order is appealed because it is not tied to the merits of the case; it runs parallel to the merits. Too important to be denied immediate review. 28 USC §1291
b) Rule: A litigant may effectively appeal an order of the court if:
i. The district courts action was concluded and final
ii. There is no step toward final disposition of the merits, and
iii. It is effectively unreviewable upon final judgment.
If the rights are not considered now they will be lost permanently
vocabulary – interlocutory appeal; made during the progress of a legal action and not final or definitive.
c) Cases
i. Cohen v. Beneficial Industrial Loan Corp. – An appellate court may review an order only if the order finally resolves the issue in question, determines an issue completely separate from the merits of the action, and the order is effectively unreviewable on final judgment (the order would have already done damage to the parties). This is “a practical construction of the final judgment rule.”
ii. Coopers & Lybrand v. Livesay – The death knell doctrine (a decertification of a class preventing financial backing to continue the suit) does not give appellate jurisdiction for review of the decertification. The collateral order exception does not apply because: the judge could recertify the class action later (not dispositive); the certification was much enmeshed in the litigation; and the decertification is reviewable on final judgment (no inflict damage to the parties). Under 1292(b), there can be no appeal because the appellant has the burden of proving that the
3) Writs of Mandamus – 28 USC § 1651(a) (a remedy not an appeal)
a) Definition: A direction to the court below to take an action or refrain from taking an action. A writ is a remedy sought from the appellate court upon motion by any party.
b) Rule: Writs can only be used under extreme conditions of abuse of judicial discretion; clearly erroneous.
c) Cases
i. La Buy v. Howes Leather Co. ii. Schlagenhauf v. Holder – A writ is appropriate for
use as a substitute for appeal if: there is a usurpation of judicial power, or a clear abuse of discretion.
iii. In Re Cement Antitrust Litigation – There are 5 factors a court must look to in determining whether to issue a writ of mandamus for review. (See p.1083)
1. No other adequate means to attain relief2. Damage or prejudice to the petitioner that is
not correctable on appeal3. Is the district courts order clearly erroneous as
a matter of law?4. Is the district courts error an oft repeated error
or manifest disregard for the FRCP?5. Does the district courts order raise new and
important problems of first impression?
4) Interlocutory Appeals
a) Definition: An order during a proceeding which is not final and does not ultimately resolve the dispute. An interlocutory appeal is an appeal interrupting the merits, or flow, of the case before the case is finalized. Anything prior to final judgment.
b) Unavailable for discovery orders
c) Rule: The courts of appeals shall have jurisdictions over orders of district courts concerning injunctions: Pursuant to 28 USC §1292(a)(1), if a district court deals with a preliminary injunction in any way, the court’s decision may be appealed as of right.
d) Rule: Pursuant to 28 USC §1292(b), any interlocutory order may be appealed (permissive or discretionary appeal) upon certification of the district judge that there is: (elements):
a) a controlling question of law (must be a controlling central issue of the case – a big deal)
b) for which there is substantial ground for difference of opinion, and (ex. 2 district courts having decided a case differently, and 3rd court looks at those difference of opinions and therefore there is a substantial difference)
c) an appeal may materially advance the ultimate termination of the litigation or in other words, materially advance ultimate disposition.
D) Timing Rules of Appeals - FRAP 4
1) Notice of an appeal as of right must be filed within 30 days after entry of judgment
2) When the U.S. is a party, notice must be filed within 60 days3) The notice must be filed within the time period or appeal is
waived.4) The district court can extend the time for appeal by 30 days if
excusable neglect is shown (good faith)5) Parties cannot agree to extend the time for appeal on their own
a) U.S. v. F&M Schaefer Brewing – A judgment must include all necessary elements in order to begin the time for a timely notice of appeal.
b) Electrical Fittings Corp. v. Thomas & Betts Co. – A winning party may not appeal findings he thinks
erroneous unless the finding will improperly bind him in future litigation. (preclusive effect)
c) Corcoran v. City of Chicago – state appellate courts may review error of fact issues in which the jury’s verdict is against the manifest weight of the evidence.
d) Orivis v. Higgins – An appellate court is most likely to reverse a bench verdict when it is based on factual evidence that is entirely in writing. Only in the most unusual circumstances may an appellate court reverse based on oral factual evidence.
Type of Order
Rule Type of Review
Certification required by Trial Ct./App. Ct.
Time Standard
Final Judgment
§1291 Appeal as of right
No/No 30/60 days
Final judgment must be entered under Rule 58 and only execution remains;Aggrieved party, no harmless error, must appear in trial court record, and timely
Interlocutory Appeal
§1292(b) Discretionary Yes/ Yes (discretion of Appellate court)
10 days - Controlling question of law.(must be a big deal based on the facts of the case)- Substantial grounds for difference of opinion.- The appeal may materially advance the termination of the litigation.
Multiple Claims or Parties
R. 54(b) Appeal as of right
Yes/No 30/60 days
- No just reason for delay- Judgment is final
Collateral Orders
§1291 Appeal as of right
No/No 30/60 days
- Finally resolves the issue- Not (a disposition) on the merits- Effectively
unreviewablePreliminaryInjunction(not final; if it was a permanent injunc. Then appeal could be taken under § 1291)
§1292(a)(1)
Appeal as of right
No/No 30/60 days
- Granting, modifying, dissolving an injunction.
Mandamus §1651 Direct petition to a higher court for direction to lower court (remedy)
No/Yes - Extraordinary relief
If it’s appealable then the appellate court has proper SMJ.
What role does trial court jurisdiction have to do what with federal court jurisdiction? none.
Once the case is over to all issues and parties – can appealWhen it’s not all over, then go for the 54b.
Bases for Appealable SMJ:1. Multiple claims 54b2. Collateral Order3. Contempt4. Class Action
E) Supreme Court Review / Jurisdiction: is not a trial court. But does have the power to be a trial court when there is a dispute between two states.
Intermediate appellate court – certiorari, a request for the supreme court to hear the case.
1) Original Jurisdiction: 28 USC § 1251; The Supreme Court can hear cases between two or more states; ambassadors; b/n the United States and a State; b/n the state as a P and other citizens; b/n ambassadors.
2) Direct Appeals to the Supreme Court: 28 USC 1253:available when a district court of three judges decides the merits of a case
3) Final Judgments or Decrees of validity of a treaty or state constitution by the highest court in the state; validity of state statute questioned b/c Unconstitutional or repugnant; or questions of the Constitution, US treaties, or US statutes are set up in the question
4) Certiorari - seeks a specific remedy – certification or a question of the court of appeals from which instructions are desired by the courts of appeals; discretionary; granted when it’s a question of gravity and general importance or to secure uniformity among the court of appeals
Source of Case
Rule/Statute
Parties Type of Review
Outcomes
Original §1251 2 or more states suing each other, State suing citizens of another state, U.S. v. States.
Full adjudication
Direct Appeal from Dist. court of 3 judges
§1253 Any litigants
Certiorari from court of appeals
§1254 Any litigants Review on a grand scale for the betterment of society
If cert is granted, Sup. Ct. hears case.If cert is denied, review is denied.
Certification by court of appeals
§1254 Any litigants Instructions to lower court
Sup. Ct. either gives instruction or takes the case.
Final Judgments of State High Courts
§1257 Any litigants Review by Certiorari
Sup. Ct. decides validity of fed. Statutes, treaties, or
Constitution.
X. Preclusive Effects of Former Adjudication
Preclusion is the doctrine of Res Judicata – the broad term means both issue and claim preclusion. Res Judicata Can not split your claim/cause of action.
A) Claim Preclusion is synonymous with true res judicata.(pleading: affirmative defense)(raise it or waive it)(doesn’t apply when there are different claims)
1) Rule: Three things must exist to raise claim preclusion as a defense:
a) There must be a judgment is final, valid and on the merits; (judgment is final 30 days after the judgment is entered in federal court)
b) The parties in both suits must be identical or in privity with one another; Privity = legal relationship between parties
c) The second action must involve claims properly considered in the first action in that the second action must arise from the same transaction or occurrence of the first action. Dicta has no preclusive effect.
2) Waiver - One may waive the preclusive effects of res judicata. It is an affirmative defense and it must be raised in a timely manner. Courts do not raise preclusion on their own.
a) Litigants get only “one bite at the apple”.b) One cannot argue an issue one way the 1st time, then
argue the same issue differently a 2nd time.c) The first judgment has preclusive effect even though
another action was filed first.
3) Cases:
a) Rush v. City of Maple Heights – If a single tort gives rise to more than one cause of action, all causes of actions must be tried in the same single lawsuit.
b) Matthews v. New York Racing Association – A second lawsuit between the same parties, or their privies, involving the same transaction or occurrence are barred even though the second action involves more theories of liability.
c) Jones v. Morris Plan Bank – Because the bank should have sought the full price of the car in the initial breach of contract action and it didn’t, it is precluded from defending the conversion action by Jones. The same evidence would have supported both contract causes of action – thus it was only one claim. Thus, Jones is entitled to summary judgment in the conversion action.
d) Mitchell v. Federal Intermediate Credit Bank – Mitchell was required to bring a counter-claim in the first action in order to recover the remaining funds from the potato crop. Because he didn’t, he is precluded from bringing an affirmative action against the bank. Compulsory counter-claims must be brought in the initial action.
e) Linderman Machine Co. v. Hillenbrand Co. – Hillenbrand’s defense against Linderman was not conclusive as to an affirmative right or cause of action against Linderman in a subsequent action and Hillenbrand was not required to counterclaim in the first action. This case is totally contradictory to Mitchell but jurisdictions define claims (transactions or occurrences) differently.
B) Issue Preclusion is synonymous with collateral estoppel. (pleading: affirmative defense)
1) Rule: When an issue of fact has been litigated and determined by a final judgment, it cannot be re-litigated. In order for an issue to be precluded:
a) A judgment must be final, valid, and on the merits;b) The issue must be identical in both suits; (seeking
preclusion construe it very broadly)(different parties)c) The issue must have been actually litigated, necessary
to the judgment, and decided by the court, and Necessarily decided.(sort of the same thing) Traditionally, the parties are the same, or in privity, in
both cases. Today the parties do not have to be identical – non-
mutual collateral estoppel
can’t assert against a stranger.
Elements: 1. Identical Issues (narrow)2. Actually Litigated3. Necessarily decided (not as important as first 2)
2) Cases:
a) Rios v. Davis - A finding of fact which is not material or essential to the judgment of a suit between two parties is not binding on the parties in a later suit. Thus, the previous court’s finding that Rios was negligent was not essential to the judgment against Davis and Davis cannot preclude Rios from suing. Also, Rios couldn’t appeal the finding of negligence because he won the prior suit. Furthermore, Rios was not a party or in privity to the first suit.
b) Housing Authority for La Salle County v. YMCA of Ottawa – In a default judgment, issue preclusion cannot apply because the issues in the case were not actually litigated. However, claim preclusion will apply after a default judgment because the defaulting party had the full and fair opportunity to be heard. Thus, the judgment is final, valid, binding, and preclusive.
c) Holmberg v. State, Division of Risk Management – Alaska was not precluded by the PERB finding that Holmberg should be granted permanent disability because PERS and Alaska are not in privity and were not represented in the PERS action. Furthermore, the first decision by AWCB should preclude the decision by PERB because it was decided first!
XI. Persons Bound by Former Adjudication
A) Non-Mutual Collateral Estoppel: The parties are NEVER the same (only one party is the same), but the issue is ALWAYS the same. (pleading: affirmative defense)
1) Rule: In order for non-mutual collateral estoppel to apply there must be a judgment that is final, valid, and on the merits about
an identical issue that has been actually litigated and was necessary to the judgment in a prior lawsuit.
a) Judgment – must be final, valid, and on the merits; (judgment is final when judgment is granted unless there’s an appeal)(judgment is final 30 days after the judgment is entered in federal court.)
b) Issue – must be actually litigated, necessary to the judgment, and decided; and
c) The issue must be IDENTICAL. However, collateral estoppel MUST be claimed, or it is waived.
2) Factors - The Supreme Court has held in Parklane Hosiery Co. v. Shore, that pursuant to due process, a court may only allow non-mutual issue preclusion after determining:
a) Whether the plaintiff could have joined the first action; b) Whether the defendant had incentive to litigate vigorously
in the first action; c) Whether there could be inconsistent judgments if another
trial is allowed; and d) Whether any procedural opportunities available in the
second action were denied the defendant in the first action (Martin v. Wilks) (jury, etc.).
Wait and See Plaintiff – waiting to see what happens.
B) Defensive Non-Mutual Collateral Estoppel: A litigant, not a party to the first action, claims collateral estoppel against a plaintiff trying to sue on the same issue that was lost in a previous action (using as a shield from being re-litigated)
1) Estopped party must have had a full and fair opportunity to litigate that issue
2) Can be asserted in the claim and then a motion for summary judgment or a motion on the pleadings
3) Think of offensive or defensive estoppel based on the position of the new party (D = defensive, P = offensive)
a) Bernhard v. Bank of America National Trust & Savings Ass’n – The issue of whether the funds in Cooks account were really his was already litigated by Bernhard. Thus, Bernhard cannot litigate the issue again just by bringing another action against a different defendant.
b) Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation – The University was precluded from litigating the validity of the patent a second time because it had a full and fair opportunity to litigate the first time – even though Blonder-Tongue is a new defendant.
C) Offensive Non-Mutual Collateral Estoppel: A litigant, not a party to the first action, claims collateral estoppel against a defendant who is trying to defend on the same issue the previously defended. (using collateral estoppel as a sword against the losing party)
1) Estopped party must have had a full and fair opportunity to litigate that issue
2) Can be asserted in the claim and then a motion for summary judgment or a motion on the pleadings
a) In Re Multidistrict Civil Actions Involving The Air Crash Near Dayton Ohio – Humphreys was precluded from litigating Tann’s liability even though Humphreys was not a party to the first action in which Tann was not found liable to the passengers. This is because the attorneys for TWA and Downey were highly competent and thus all the issues were already litigated. However, the Appellate Court reversed this decision because Humphreys would be denied due process – they didn’t have their day in court.
b) Martin v. Wilks – There is no such thing as compulsory intervention. Thus, just because the white firefighters knew of the action by the black firefighters, they didn’t have to intervene. Also, consent decrees are not final judgments, on the merits, and valid; consent decrees do not litigate specific issues. Thus, the white firefighters are not precluded from bringing the action against the city.
Test: is it res judicata, collateral estoppel, both or neither?
XII. Alternative Dispute Resolution
Common Forms of ADR:
A) Negotiation - Two parties by themselves or through their attorneys working out a dispute.
B) Mediation - The use of a neutral third party who doesn’t actually make decisions but points out ways to dissolve the dispute, and then the parties resolve their own dispute. Useful when there is mutual bargaining power.
C) Arbitration - Very similar to litigation. The parties usually consent to arbitration in a contract.
Binding arbitration.
Two Types:1) Final Offer Arbitration: Both sides put together their idea of a
fair outcome.2) One Way Arbitration:
Exam Review:
Pre-judgment Appellate Review
Merits Collateral Order level 1(either or)(54b)
1292 (b) (3 elements) level 2
Writ Route level 3
