I. FINANCING LITIGATION

I. COURSE INTRODUCTIONA. Population and Dynamics

i. How much litigationii. Why people sue

B. Pleading: Starting the ProcessC. Joinder of Claims and PartiesD. Discovery: Getting InformationE. The Trier: Who Decides?F. Former Adjudication: What Lawsuits Don’t Decide

II. INCENTIVES TO LITIGATEA. By the Numbers

i. Growing in both amt and awards1. Junk lawsuits: drag on social / econ life2. Not necessarily f(x) of population and

econ growtha. Japan: 1 attny per 9K; 1 judge per

80Kb. Germany: 1 attny per 1K; 1 judge

per 3.5Kc. U.S.: 1 attny per 300, 1 judge per

27K3. Mkt alternative to regulation (e.g.

unionization)?ii. 98% Civil in State Court (fed has limited juris)

iii. 3% go to Trial1. ½ and ½ Civil / Criminal2. Civil faster than population (24% from

1985-2000)B. Tort v. K Cases

i. Tort: < ½, but make up 2/3 of trials; Δs win 52%; mostly tried by jury; median award = 27K; punitives in 5%; 14 months to resolve

ii. K: Πs win 65%; mostly bench trials; median jdmt = 45K (11% recover > 1 mil); punitives in 6%; 8 months to resolve

III. CIVIL PROCEDURE POLICYA. Tradeoff b/t speed and qualityB. voir dire time likely will not streamline litigation,

as only 3% of cases see trialC. Limiting div juris would not dump great # of cases

on state courts, as only 2% go to fed court

II. AMERICAN / ENGLISH RULES & FEES

I. AMERICAN RULEA. Party pays own fees, unless…

i. Statute provides otherwise (§1983)ii. K “”

iii. BF CL doctrine (malicious prosecution, Rule 11)

B. Encourage “law reform” suitsi. Still, sometimes will produce “nuisance”

settlements, where cheaper to settleC. Discourage meritorious low-damage suits

i. Cost-benefit analysis weighing cost of bringing suit and expected pay off

II. ENGLISH RULEA. Loser pays both side’s feesB. Encourage meritorious but low-damage suitsC. Discourage high cost “law reform” suits (might

lose)

III. TYPES OF FEESA. Contingent Fee

i. Lawyer retained and is later paid from proceeds of settlement or recovery

ii. Pros:1. No risk but possibility of gain to client2. For lawyer, incentives highest possible $

outcomeiii. Cons: winners subsidize part of cost of losers

B. Hourly i. Incentivize lawyer running up hours for larger

billii. See a lot in commercial litigation

C. Flat Fee i. Ex: pay me “X” to do “X”

ii. Some hesitant, b/c may leave $ on tableD. Hybrid - U.S. Civil Litigation

i. Fee-for-service (w/ variations): commercial litigation often

ii. Fee-spreading:1. Insurance and contingent fees2. Prevalent in PI and Tort litigation

iii. Fee-shifting statutes: civil rights & “public” litigation

iv. Remainder: philanthropy, pro bono, public subsidy, or a mixture

E. Who’s Left Out?i. Damages too small to justify needed work

1. Class actions as solutionii. Non-$ jdmt in non-fee-shift cases

1. Ex: divorce / child custodyiii. Defendants

1. If jdmt proof, won’t be sued

III. INTRODUCTION TO PLEADING

I. THE STORY OF PLEADING A. Pleading Defined

i. Must know what can ask for, and how to askii. Pleading:

1. Complaint and set of papers in a lawsuit2. Tells initial stories and why court should

hear caseB. 16 th Century v. Modern Complaint

i. Lawyer: hears client’s story, then translates into system in place

ii. CL gave less detail on facts; no discovery, straight to trial

iii. Changed over time…C. CL Pleadings / Writs (1200-1850)

i. Complaint: specific formula to gain court’s attention / jurisdiction1. Facts often inconsistent w/ formula

ii. Advantages1. Disposed of frivolous cases early

2. Kept docket shortiii. Disadvantage: NO discovery

D. Code Pleadings (1850 -) i. Emphasized facts, which was problem where Π

did not know all relevant facts at outsetii. Not flexible, as required specific COA, which

were treated as mutually exclusive E. Notice Pleading (FRCP 1938 - )

i. Purpose: provide notice of claims & defenses (give me a hint!)

ii. Fairly easy to pass pleading stage (8(a))1. Use discovery to sort out frivolous cases2. Facts often surface after discovery, which

can’t begin until complaint is filediii. Four Features

1. Merged law & equity2. Broad / flexible joinder of claims / parties3. Powerful pre-trial discovery4. De-emphasized pleading’s role in litigation

a. NO specific formulab. Less stringent fact requirement

iv. Downside: unmeritorious cases may last longer than should

F. Post-Twiqbal Era i. Moved us away from notice pleadings

ii. SCOTUS: Πs must be more specific in complaints

iii. Claim not rewriting / overruling Rule 8

II. THE PROBLEMS OF PLEADINGA. Incompatible Goals

i. Learn as much as possible at outset to screen out weak cases cheaply

ii. Eliminate technical barriers to ultimately meritorious cases if can get to discovery

B. Notice pleading: good at ii, bad at ii. Only catches lack of legal basis

ii. Facts screened laterC. Michael Haddle’s Story

III. FRCP 7(a) - PLEADINGS ALLOWEDA. Where only one Π v. one Δ, following allowed…

i. Complaint: specifies all claims a/g Δii. One or more answers

1. Δ’s response; may file counterclaimsiii. Reply

1. Answer to another’s answer2. Only upon court order

B. If add’l parties involved, may allege claims / defenses in add’l pleadings

IV. FRCP 8(a) - PLEADING MUST CONTAIN…A. (1) Short & plain stmt of grounds for court’s SMJ;

i. Fed Q : complaint cites statute or C-al provision (§ 1331)

ii. Diversity : parties citizenship & amt in controversy > 75K; if corp, state of incorp / PPB

iii. Supplemental : “same case or controversy”1. Indicate claim in suit to which claim in

question is supplemental2. Specify that such claim forms part of same

Art. III case as other claim

B. (2) “” of the claim showing pleader entitled to relief; ANDi. Adequate notice?

ii. (d)(1): each allegation simple, concise, & directiii. (e): construed as to do justice

C. (3) : Demand for relief soughti. Dollar amt not required, but should specify $,

equitable, or declaratory jdmtii. May ask for multiple types

V. FRCP 10 - FORMS OF PLEADINGSA. (a) Every pleading must contain…

i. Caption indicating court’s name & action’s title ii. File # assigned; AND

iii. Designation of type of pleadingB. Must divide claims & defenses into separate stmts

i. #’ed paragraphs limited to single set of circumii. May adopt prior paragraphs by reference

C. May attach exhibitsD. See Forms 11 & 12

VI. MORE INFO REGARDING THE COMPLAINTA. MUST plead venueB. FRCP 8(d) - Pleading in the Alternative

i. Party may plead two or more alternative or inconsistent claims / defenses

ii. If one sufficient, pleading sufficientiii. Ex:

1. Deny K, but assert kept side of bargain2. Seek recovery b/c K says “X”, but ask

court to reform so that says “NOT X”C. Upon Info and Belief

i. Use when don’t know X, but X is important. ii. Info w/in Δ’s realm

D. Damages i. Place hard # you know in complaint’s damages

section

VII. STATING A CLAIMA. How does the Complaint shape the lawsuit?B. What strategic considerations go into drafting a

complaint?C. How does a lawyer read a complaint?D. What is the “theory of the case?”E. What is a “claim” and how is it pled?

VIII. INVESTIGATION - JONES v. CLINTONA. Extensive fact investigation begins immediately. B. Relevant Facts

a. Date event occurred (SOL?)b. Witnesses? (corroboration / credibility)c. Docs? (electronic / emails)d. Past accusations? (testing client)

C. Ascertain PJ’s Goals a. Client in charge of goals; drives the case

i. Clear name or $?ii. Political crusade?

b. How harmed, e.g. how to prove damagesD. Immediately determine chance of advantageous

settlement w/out litigation

IX. DEVELOPING A THEORY OF THE CASEA. Basic underlying idea explaining legal theory / facts,

but also tying evidence into coherent/credible wholei. Simple, declarative sentences combining law

& factsii. Centerpiece for all strategic / tactical decisionsiii. Elevator talk w/ colleagues

B. In Jones, TOC is abusive power (troopers), not just sexual harassment, b/c SOL has runi. Color of State Law

X. STRATEGIC DECISIONSA. What Claims ?

i. Deprivation of C-al Rights1. Quid Pro Quo2. Hostile Work Environment3. False Imprisonment

ii. Defamationiii. IIED

B. Weaknesses iv. Quid Pro Quo: more implied than express; no

tangible job detrimentv. Hostile Work Environment: lacks detail; must

show “severe or pervasive impact”vi. Defamation: damaged reputation?

vii. IIED: must be severe; no physical / psychological manifestation

C. Choosing Claims i. Impressive / intimidating to bring several; but,

don’t overreach what plausibly may proveii. Plead enough damages for diversityiii. Joining Trooper helps meet “color of state

law,” b/c to exculpate, must incriminate Bill; but… Bill’s could get to him first

D. Damages i. Compensatoryii. Punitive: prove conduct outrageous, e.g. Bill is

repeat offender (opens discovery inquiry!!!)

IV. CHALLENGING COMPLAINT - FRCP 12(B)(6)

I. CL DILATORY OR PEREMPTORY PLEASA. Jurisdiction : “not here”

i. Ex: case shouldn’t be in fed ctii. Effect: case dismissed to be filed in proper ct

iii. Today: challenge PJ (12(b)(1)) or SMJ (12(b)(2))

B. Suspension : “not now”i. Ex: Δ on active military duty

ii. Effect: case stayed until Δ dischargediii. Today: defense or statutory scheme

C. Abatement : “not until fix this”i. Ex: Δ asserts improper venue

ii. Effect: case transferred or dismissediii. Today: 12(b)(3) motion

D. Demurrer : “so what?”i. Ex: assuming facts true, complaint does not

state claim; lacks legal basisii. Effect: case dismissed

iii. Today: 12(b)(6) motion, e.g. “failed to state claim upon which relief can be granted”

E. Traverse : “didn’t happen” or “I didn’t do it”i. Ex: complaint’s allegations are false

ii. Effect: jdmt on merits for Δiii. Today: denial in Δ’s answer

F. Confession & Avoidance : “yes, but…”i. Ex: SOL has run

ii. Effect: jdmt on merits for Δiii. Today: affirmative defense in answer

II. PLEADING IN HADDLEA. Π at-will e’ee; brought § 1985 claim: improperly

discharged b/c of fed testimony; Δ files 12(b)(6)B. S.D. Ga.: no actual injury; at-will e’ees have no C-

ally protected interest in continued employmentC. 11th Cir.: affirmedD. S. Ct. 1998: reversed 9-0, as prop interest defined

differently; lower ct used wrong legal analysis

III. ILLUSTRATION WITH JONES V. CLINTONA. 12(b)(6) & (c) are primary mechanisms for Δ to

test legal sufficiency of Π’s complainti. (b)(6) almost always b/f answer

ii. (c) motion for jdmt on pleadings filed after or simultaneously w/ answer

B. Treat all factual allegations as true, and draw R inferences in favor of Π therefromi. Can’t use other evidence

ii. If such could be basis of legal relief, denyC. Thrust of Argument

i. Factual based: one instance of misconduct; doesn’t state claim; damages weak

ii. Cooper: wrong idea of 12(b)(6), e.g. shouldn’t say certain elements inadequately plead

D. Distinguish from Haddle

IV. LOOKING CLOSER AT RULE 12(b)(6) MOTIONSA. Two Types

i. NOT legally cognizable claim (Haddle)ii. One or more elements NOT adequately plead

(Jones)B. Lawyer as Technician

i. Claim-by-claim, element-by-element analysis C. In Notice Pleading, purpose of complaint is to

provide Δ notice. i. If done, ct likely will deny 12(b)(6) motion.

V. PLEADING TODAY: WHAT NOW???

I. RULE 8 REQUIREMENTS B/F CONLEY & IQBAL A. FRCP 8 : “short & plain stmt of claim showing

pleader entitled to relief”B. Conley: do not dismiss unless, beyond R doubt, Π

can prove no facts entitling him to relief.i. Retired after Twombly

C. Leatherman: All rules requires is fair notice of Π’s claim and grounds on which it rests

D. Swierkiewicz: liberal req of notice pleading is starting point of simplified system.

E. Issue : how “short and plain”?

II. THEN CAME TWOMBLY, 2007

A. Π alleged Δ telephone companies violated Anti-Trust laws; needed conspiracy (> parallel conduct)

B. Issue : sufficient facts alleged to show parallel conduct?

C. Holding : NO. Conclusory allegation not enoughD. Rule : must include “enough factual matter (taken as

true) to suggest agreement was madeE. Policy : discovery expensive (potentially massive

factual controversy”; rule furthers sorting f(x)F. Problem : confined to Anti-Trust?

III. THEN CAME IQBAL, 2009A. Π alleged, after 9/11, UC-ally imprisoned b/c of

race / national originB. Rule : must provide “sufficient factual matter … to

state claim plausible on its face”i. E.g. “nudge claims across line from

conceivable to plausible”ii. “more than sheer possibility” but less than

“probability”iii. Can’t merely mouth elements of claim

C. Two Step Analysis :i. Disregard ALL legal conclusions / conclusory

allegationsii. Evaluate residual facts w/ judicial experience

& common sense to determine “plausible entitlement to relief”

D. Thoughts :i. A/g, discovery problems a factor (deposing top

gov’t officials)ii. Justices never lawyers; not pragmatic decision

IV. AFTERMATH OF TWOMBLY & IQBALA. FRCP 84 : forms SHOULD still suffice, e.g…

i. Forms in appendix suffice under rules;ii. Illustrate simplicity & brevity contemplated

B. Practical Consequences i. Breath life into 12(b)(6), as Π must spend $ &

show cards earlierii. Sorting f(x) early in case

C. State of Mind - Special Problem? i. Often, need discovery to plead

D. Bills Currently Before Congress i. Notice Pleading Restoration Act

ii. Open Access to Courts Actiii. *Neither going anywhere

E. Π and Δ’s Arguments / Interpretations i. Δ: set new std; if under facts taken as true,

claim not plausible, should dismissii. Π: confined to specific facts

iii. No clear answer

V. SPECIAL PLEADING RULES - FRCP 9(b) A. Certain claims need be plead w/ more specificity,

e.g. claim based on fraud / mistakei. Must state circum constituting such w/

particularityii. General allegation not enough; need detail

B. Other issues in case (malice, intent, knowledge, state of mind) NOT subject to heightened std

C. Stradford v. Zurich Ins. Co., 2002

i. Π’s ins dropped; re-up, then notify iR of claim not in coverage period

ii. iR refused pmt; Π sued; iR counterclaimed or fraud; Π moved to dismiss b/c no particularity

iii. Held : 9(b) not satisfied, b/c time, place, and nature of misrep not given; must ID fraud stmt1. Need fair notice and factual grounds2. iR may amend counterclaim

iv. Policy : protect K claims & parties’ damage expectations; also, punitives available

v. iR’s Options:1. Answer w/ affirmative defense of fraud2. Counterclaim for fraud

a. Allows punitivesb. Paints better picture for jury

D. Higher Std Required by Statute i. Private Securities Reg Reform Act of 1995

ii. Med mal claims, e.g. board approval by Drs.iii. Professional mal claims

VI. ALLOCATING CLAIM’S ELEMENTS & ETHICAL LIMITATIONS ON PLEADINGS

I. ALLOCATING THE ELEMENTS OF A CLAIM A. Beginning point is Pleading

i. Π must show elementsii. Δ must show any defenses

B. Burdens each party bears…i. Burden of Pleading (above)

ii. “” Production: bring forth evidence of claimiii. “” Persuasion: convince / persuade fact trier

C. Π initially has burden of pleading, h/w, once Δ asserts contrib. N, burden shifts

D. Jones v. Block - PLRAi. Π filed § 1983 claim, claiming injured while

prisonerii. Issue : should Π plead / demonstrate exhaustion

or should Δ raise lack of as affirmative defenseiii. Holding : affirmative defense under PLRA

1. Exhaustion generally treated as AD in rules2. Exercising judicial restraint; inconsistent

w/ Twiqbal3. Puts burden on Δ; need docs

II. ETHICAL LIMITATIONS IN PLEADING & LITIGATION GENERALLYA. Rule 11 Overview

i. Lawyer must think twice b/f filing1. Rule ensures honesty & accuracy in

pleadings & motionsii. (b): Applies only to written, not oral reps;

requires R inquiry under circum1. Law (Walker);2. Facts (Christian)

iii. (d): N/A in discovery (but see 26(g))B. Examples

i. Telephone calls NOT sanctionable, b/c not writing or motion

ii. Groundless interrogatory NOT sanctionable, b/c N/A to discovery

iii. “Under the circum” matters w/ SOL issues

iv. Can NOT combine motion for SJ and sanctionsv. If salient event occurs, rendering SOL defense

N/A, need not file amended answer C. FRCP 11: Signing Pleadings, Motions, & Other

Papersi. (a): each paper MUST be signed by attny or

party (pro se); otherwise, will be strickenii. (b): If present matter to ct, deemed to have

certified that matter1. “Present” by…

a. Signingb. Filing / submitting w/o/r/t signaturec. Advocating contents to ct

2. If not accurate, subject to sanctions3. Attny certifies that…

a. R inquiry conducted under circum; &b. Following true to best of person’s

knowledge, info, & belief…i) (1) NOT presented for improper

purpose (harass or delay)ii) (2) Legal arguments supported

by existing law, or non-frivolous arguments

iii) (3) Facts either supported by evidence, or likely will be later

iv) (4) Denial of facts either supported by evidence, or R-ly based on belief or lack of info

iii. (c): If any certifications untrue, opponent may move for sanctions1. (1): sanctions discretionary, NOT

mandatorya. Imposed only on responsible person

(e.g. party and/or lawyer)b. Places wedge b/t attny-client

relationship; must be suspicious 2. (2): By Motion / 21 Day Safe Harbor Rule

a. Serve motion on other side (not w/ ct)b. Have 21 days to w/draw offending

doc unless ct grants longer periodc. If don’t, ct may award R attny’s feesd. Policy: cts busy

3. (3): By Cts Initiativea. B/f imposing, must issue order to

show cause, e.g. why shouldn’t impose

b. Here, safe harbor does NOT apply D. Persons Subject to Sanctions

i. Attnys, firms, and parties ii. Sanction party ONLY if either violated rule

personally or was responsible for violationiii. $ sanctions NOT allowed a/g party for wrongful

legal contentions. 11(c)(5)(A)E. Sanctions Allowed

i. Limited to that needed to deter repetition of conduct

ii. Nonmonetary (strike pleadings or reprimand)iii. Penalty paid to court iv. Any or all attny’s fees caused by violation

F. Walker v. Norwest Corp. - Legal Research

i. Π’s attny plead diversity, but also facts a/g complete diversity; Δ’s attnys alerted Π, but no response

ii. D.C. dismissed, allowed sanctions on attnyiii. Held : affirmed, b/c not warranted by existing

law (not changing diversity rules)iv. Notes :

G. Christian v. Mattell Inc. - Factual Researchi. Π brought copyright claim; Δ offered evidence

that prior copyright notice on dolls headii. Π refused to drop complaint; Δ moved for

sanctionsiii. Held : cannot continue to advocate position no

longer good1. D.C. went too far in sanctioning non-

written conduct / discovery misconductiv. Mattel: “don’t mess w/ us” strategy

H. Important Factors Considered i. Violation willful or merely N

ii. Intent to injureiii. Legal training / lack thereofiv. Pattern of offending conductv. Pervasiveness of wrongful activity

vi. Effect on litigation, e.g. added time or expenseI. Rule 11 Violation Checklist

i. Improper purposeii. Not warranted by existing law

iii. Allegations lack, or not likely to have, evidentiary support

iv. Denials not warranted by evidence

VII. RESPONDING: PRE-ANSWER MOTIONS

I. Δ’S THREE CHOICESA. Do Nothing : default jdmt (Rule 55); 20 days, unless

waived service, whereby get 60 (may get 20 extra)B. Pre-Answer Motion : e.g. 12(b)(6) or other Rule 12

i. Challenge specific issues for efficient / cheap case end; prolongs period before must answer

C. Answer : req response dealing w/ Π’s allegationsi. Rule 11 applies!

II. 7(b) - FORMS OF MOTIONSA. Request for ct order MUST be made by motion, e.g...

i. In writing unless made at hearing / trial;ii. State w/ particularity grounds for seeking;

iii. State relief sought; &iv. Signed in accord w/ Rule 11

B. Asking ct to do something

III. FRCP 12(g) & 12(h) - TRAP FOR ATTORNEYSA. (g)(1) : allows multiple Rule 12 motions to be brought

at same timeB. (h)(1)(A) : if raise Rule 12 motion in 1st response but

omit disfavored defense, waived for remainder…i. (b)(2): lack of PJ

ii. (b)(3): improper venueiii. (b)(4): insufficient processiv. (b)(5): insufficient servicev. Why? Δ knows a/b from outset, t/f out of

fairness, should be raised early

C. (g)(2) : do NOT avoid waiver by filing 2nd pre-answer motion; h/w, strict waiver does NOT apply to…i. (b)(1): lack of SMJ;

ii. (b)(6): failure to state claim;iii. (b)(7): “” join party under Rule 19

D. May raise (b)(6) & (b)(7) motions in…i. Answer;

ii. 12(c) motion; ORiii. Trial

E. (b)(1) may be raised at ANY time, by party OR ct

IV. HYPOSA. If fail to allege N caused injuries 12(b)(6)B. If plead diversity, Δ thinks contacts too minimal for

PJ 12(b)(2)C. Two motions combinable? YES, 12(g)(1), and

SHOULD!D. If bring (b)(6), ct denies, can Δ bring (b)(2)? Include

as defense in answer? NO. 12(h)(1)(A)E. Timing reversed.

i. Can NOT raise pre-answer motion. (g)(2) & (h)(2)

ii. Can raise in answer, 12(c) motion, or trialF. Δ moves to transfer venue; denied. Now raises (b)(5)

& (b)(6). i. May raise both in either pre-answer motion or

answer.ii. Not “motion under this rule.” 12(g)(2)

V. ILLUSTRATION - JONES v. CLINTONA. “Motion to Set Briefing Schedule”

i. Rule 12 not exhaustive listii. Wanted ruling on pres immunity; and to file any

motion at later timeB. Jones: must bring all motions together, no multiple

bites at apple b/c he’s presi. “Trans-substantive” nature of rules

ii. Want to move forward b/c…1. Case may go stale2. Witnesses may die3. Media pressure may 4. Answer b/f 1996 election

C. S.C.: NO immunity; only immune where suit concerns official duties

VI. 12(e) - MOTION FOR MORE DEFINITE STMTA. Pleading requiring response so vague / ambiguous

that party can’t R-ly frame responseB. Must specify ambiguityC. Rare, as typically raise 12(b)(6)

VII. 12(f) - MOTION TO STRIKEA. Strike portions redundant, immaterial, impertinent, or

scandalous; rarely grantedB. Forces removal of irrelevant / prejudicial allegationsC. Timing : b/f responsive pleading served OR if none

served, w/in 20 days of service of the pleadingD. Scandalous : marginal / no relevance; OR particularly

inflammatory

VIII. 12(c) - MOTION FOR JDMT ON PLEADINGS

A. Can NOT file 2nd 12(b)(6) motion, but if omitted can file 12(c) motion; after pleadings closed, but early enough not to delay trial

B. Ex : breach of K; Δ claims parent sick so didn’t pay. Δ did not deny, t/f Π can file 12(c)

C. Ex : Π’s complaint shows SOL has run; Δ may answer w/ affirmative defense, and file 12(c)

IX. ANALYSIS FRAMEWORKA. Δ typically responds by filing answer as in 12(a)

i. BUT, if has prelim objections, may avoid answering immediately w/ 12(b) motion

ii. If file 12(b) motion, need not answer till motion decided. 12(a)(4)

B. Pre-answer motion optional; may raise objections in answer instead. 12(b)

C. 12(b)(6) challenges substantive merits of complainti. Here, asserting that even if allegations true, still

not entitled to relief

VII. RESPONDING: THE Δ’S ANSWER

I. THE ANSWER BY Δ A. Introduction

i. Inclination to deny everything; h/w not allowed by Rule 11

ii. Attny should send draft to client, explain req to admitting / denying, then have client sign off

B. Rule 12(a) - Time for Filing Answer i. W/in 20 days after service, unless waived,

whereby 60 days after wavier letter sentii. If U.S. gov’t Δ, have 60 days to answer

C. FRCP 8(b) - General Rules of Pleading i. In responding to pleading, party must…

1. State in short / plain terms its defenses; &2. Admit / deny allegations asserted a/g it

ii. Denial: must fairly respond to substance of allegation

D. Options Available to Δ in Answering i. General denial, ONLY if mean to deny

everything. 8(b)(3)ii. Specific denial in whole or in part. 8(b)(3) &

(4)iii. Lack of knowledge or info. 8(b)(5)iv. Failure to deny = admission. 8(b)(6)

1. Exception: amt of damagesv. Inconsistency permitted (like complaints). 8(d)

(3).vi. NOT obligated to answer legal conclusions

1. Ex: ct has SMJ & PJ over ∆2. Note: some cts held opposite

E. Zielinski v. Philadelphia Piersi. Π brought respondeat superior claim a/g ∆;

responded w/ gen denial; was not ∆’s e’eeii. Rule : should have made more specific denial;

would have warned Πiii. Holding : Π can still sue ∆!

1. Purpose of notice pleading notice!2. Attempt to avoid surprise

iv. Solution : break complaint into more paragraphs

II. AFFIRMATIVE DEFENSESA. FRCP 8(c)(1) - Affirmative Defenses

i. In responding, must affirmatively state any avoidance or affirmative defense, including…1. [list of non-exhaustive defenses]

a. Ex: comparative N, pres immunity2. Waived if not asserted, unless can amend

ii. Affirmative defense: “even if X true, Π still loses b/c of Y”1. NOT motion, but preserves issue to litigate

B. Π does NOT have to respond to affirmative defense. C. Burdens generally on party raising affirmative

defense

III. REPLYA. If Δ files a counterclaim designated a counterclaim,

Π MUST reply under 7(a)(3) B. If actually affirmative defense disguised

(ostensible), reply technically not required but wise

IV. AMENDMENTS 1 hrA. Why amend?

i. New info surfaces suggesting claim or defense;ii. New research suggests different theory for case

iii. Can NOT present new info w/out amending, b/c pleading sets parameters of case

B. FRCP 15 - Amended & Supplemental Pleadings i. Note: amended 2010

ii. (a) Amendments Before Trial1. (1) May amend as matter of course once

w/in… a. (A) 21 days after service; ORb. (B) if responsive pleading req, 21

days after service of…i) The responsive pleading; OR

ii) Rule 12(b), (e), or (f) motion, whichever is earlier

2. (2) In all other cases, may amend ONLY w/ opponent’s written consent or ct’s leave. a. Freely give leave when justice so req,

e.g. absent undue delay, BF, or dilatory motive; or undue prejudice

b. Inexcusable neglect or carelessness by pleader? Beeck

c. Flexibility v. finalityC. When will it matter if can amend original pleading?

i. SoL or relation back at issueii. Opponent argues although time not expired,

have relied on original stmt of case (prejudice) D. Beeck v. Aquaslide N’ Dive Corp

i. Π filed complaint a/g ∆, who erroneously admitted manuf of slide; moved to amend

ii. Rule : 15(a)(2) req inquiry into prejudice to opposing party, in light of particular facts1. Prejudice to either side?2. How far along in case?3. Bad faith?4. Utility of amendment?

iii. Holding : ∆ may amend b/c no BFE. Jones v. Clinton Amendment

i. Jones want 3rd party favoritism claim, which would open up discovery from other women;

remove defamation b/c damages claim weak, & opens door for Clinton

ii. Arguments for1. Justice requires; discover hasn’t begun

iii. Arguments a/g1. Untimely and prejudicial2. Theory rejected b/f; futile3. Don’t penalize ∆ b/c Π got new attny

F. SoL and Relation Back i. FRCP 15(c) - Relation Back of Amendments

1. (1) Amendment relates back to date of original pleading when…a. (A) Law providing SoL says so; ORb. (B) Amendment asserts claim /

defense arising from conduct, trans, or occurrence set out in original

2. Purpose of SoLa. Need finalityb. Prevent staleness of evidencec. Relation back fits, as Δ put on notice

ii. Moore v. Baker1. Π signed consent form; operation went bad,

& sued over IC; moved to amend adding N post-op care, which was barred by SoL

2. Rule : whether orig complaint gave Δ notice of new claim

3. Analysis :a. Orig complaint focused on actions b/f

surgery; NOT adequate noticeb. NOT same conduct, trans, occurrence

iii. Bonerb v. Richard J. Caron Foundation1. Π claimed N mtnc of rec court; hired new

attny, wanted to add counseling mal prac2. PP : relation back based on principle that

once notified of litigation over a trans / occurrence, fully protected by SoL

3. Holding : same nucleus of operative factsa. Different theories of N, but same

trans / occurrenceb. Π may amend

iv. Distinguishing Moore from Bonerb1. Orig Pleading: Moore used specific,

whereas Bonerb’s more general2. Timing: Moore’s was post-discovery &

post-MSJ; Bonerb’s was during discoveryG. DC has wide discretion to apply these vague rules

VIII. JOINDER OF CLAIMS

I. INTRODUCTIONA. Modern U.S. process distinguishing characteristics:

i. Broad Discovery: state power in private handsii. “” Joinder: whole controversy as aim

B. 18(a) - Joinder of Claims i. Party asserting one of various claims may join

… as many as he has a/g opposing partyC. FRCP 18 - Vocabulary

i. Claim [8, 18]: orig Π orig Δ (1-ring circus)ii. Counter “”[13(a) & (b)]: Δ Π

iii. Cross-“” [13(g)]: “3-Ring Circus,” e.g. Π Δ1 Δ2

iv. 3rd Party Claim [14(a)(1)]: Π Δ 3rd Party Δ

v. N: permissive, NOT mandatoryD. Policy

i. Efficiency: claims overlap, 2 cases inefficientii. Consistency: 2 cts may inconsistent result

II. JOINDER & JURISDICTION ROADMAPA. Which joinder rule applies?

i. 13-14; 18-24. If NONE, joinder NOT allowedii. N: must consider res judicata effect

B. Joinder of claim or Party Allowed?i. If YES, PJ over joined party?

ii. If YES, SMJ over joined party or claim?1. Orig: FQ or diversity2. Supp (§ 1367): no indep basis of j(x)

iii. N: special provisions for 14 & 4(k)(1), Interpleader, & add’l parties in § 1367

iv. On exam, don’t do PJ, but know SMJC. In real life (waived if not asserted)…

i. PJ over add’l partyii. Venue

D. Strategic Questions Raised by Parties i. Π: Will I win? A/g whom? Will they win >

than me? Should I settle w/ one to raise $? ii. Δ: Will I win? Will I win more than Π?

Should I settle? Can I make deal w/ Δ2?

III. FRCP 18A. GR : single Π can join any & all claims a/g single Δ

i. 42(b): judge may severe for trial convenienceB. Although permissive, former adjudication (use-it-or-

lose-it) may pressure joinderC. Broad rule, but fed court has ltd j(x), e.g. need SMJ

over claimD. Analysis Framework, So Far…

IV. 28 U.S.C. § 1367 - SUPP J(x)A. (a) - FQ J(x) : unless in (b), (c), or statute, supp j(x)

over all claims so related to orig, so that form part of same Art. III case or controversy; includes claims involving party joinder/intervention

B. (b) - Div J(x) : If j(x) founded solely on § 1332, NO supp j(x) under (a) over claims by Π a/g parties under Rules 14, 19, 20, or 24

C. Analysis Framework i. Basis of orig j(x)

1. FQ see (a)2. Div see (b)

ii. Party exercising § 1367’s ID (Π or Δ)iii. Rule authorizing joinder of party a/g whom §

1367 j(x) sought

V. COUNTERCLAIMS A. 13 (a) - Compulsory : MUST state if…

i. Arises out of T or O as Π’s claim (codifying res judicata); AND

ii. Doesn’t req add’l party ct has no PJ overiii. *Failure to assert wavier! No penalty for

erroneously bringing!iv. Waiver Exceptions…

1. NO A filed;2. When A, claim not yet arisen;3. When A, claim litigation in progress;4. Π’s suit based on in-rem j(x)

B. 13(b) - Permissive : MAY state if NOT compulsoryi. Does NOT arise from same T or O

ii. T/f, need indep j(x), and can NOT use § 1367C. Defense v. Counterclaim

i. 12(b)(6) defense (shield)ii. Counterclaim affirmative claim a/g Π

(sword)D. All Compulsory ?

i. NO, b/c parties need strategic flexibility in deciding whether further complication N

E. Plant v. Blazeri. Π brings Truth-in-Lending Act suit; Π in debt

to Δ, who counterclaimed (state claim)ii. I : counterclaim compulsory under 13(a)?

1. If Y § 1367 j(x)2. If N § 1367 j(x)

iii. H : YES.iv. R : Logical Relation b/t claim & counterclaim?

1. Here, single aggregate of operative facts (loan) gave rise to both claims

2. Counter: too abstract / tenuous; fed v. state K law

v. Practical Effect: Πs may not bring claims, b/c worry a/b counterclaim (argue PP!)

VI. CROSS-CLAIMSA. 13 (g) : may bring a/g co-party IF…

i. Arises from same T / O as orig or counter; ORii. Relates to subj matter prop of orig complaint

iii. *Essentially exclude permissive; h/w, optional (unless res judicata will be problem)

B. Relationship b/t 13(g) & 18(a) i. 18(a) implies can bring anything a/g anybody;

h/w, must read w/13(g), which requires moreii. Once IS proper 13(g) crossclaim, 18(a) in play

(e.g. can bring unrelated claims w/ indep j(x)!)

IX. JOINDER OF PARTIES

I. INTRODUCTION A. 20(a)(1) - Permissive Joinder of Πs : MAY join IF…

i. (A) Assert any right to relief arising from same T, O, or series of Ts or Os; AND

ii. (B) Any Q of law or fact common to all Πs will arise in the action

B. 42(a): court’s discretion to consolidate or separateC. Policy

i. Efficiency: don’t need multiple suitsii. Consistency: prevent inconsistent jdmts

iii. Π is master of claim, e.g. “may” language; h/w may be foolish b/c power in #s (discrim)

II. BY ΠsA. 14(b): Π may bring 3rd P claim if, after counterclaim

assert a/g it, Π has derivative claim (same as 14(a))B. Mosley v. GM

i. 8 Πs allege discrim a/g GM; 2 others allege a/g GM subsidiary; want to join; DC denied

ii. I : abuse of discretion? Yes.iii. SoR : DCs have wide discretion to order sep

trials, etc. to prevent delay / prejudice (42)iv. Rule : 20(a)(1)v. Analysis :

1. Each Π injured by same GM policy (A)2. Plead “policy threatens entire class,” &

GM’s discrim basic to Π’s recovery (B)C. Consequences of Misjoinder

i. 21: NOT grounds for dismissal, but must severe claims for trial

D. Procedural Dance i. May attempt joinder under Rule 20; h/w, judge

exercises indep power under Rule 42…1. (a): consolidate issues involving

common Qs of law & fact2. (b): sep trial of one or more issues to

avoid prejudice / expedite & economizeii. Must consult local rules re: related claim ID

E. Res Judicata : @ some point, door should be closedF. N : time period relevant for “same T or O”

III. JOINDER SO FARA. 8: allows alternative claimsB. 18: “” joining unrelated claims, once have oneC. 20: “” more Πs & Δs from same T/O & common Q

of law & factD. 13(a) & (b): allows counterclaimsE. 13(g): “” cross-claims amongst co-parties

IV. BY Δs: 3rd PARTY CLAIMSA. Common Scenarios

i. Auto accident; iRs indemnify TFii. Overdraft; bank covers up to stated amt

iii. Roof collapses d/t defective materials; supplier pays damages

B. 13(h) - Adding Ps to Counter or Cross Claims i. Allows party filing valid counter / cross to add

add’l Ps to claims if Rule 20 metii. Test: if orig counter / cross was separate suit,

could claimant sue Ps as co-Δs under Rule 20?C. 14(a) - When Defending P May Bring in 3 rd P

i. (1): serve summons / complaint on nonparty who is or may be liable to it; h/w need court’s permission if 14 days after serving original A1. 4(k)(1)(B): service w/in 100 miles of DC

creates PJii. (2)(A): 3rd P Δ’s defenses asserted in A

iii. (2)(B): must assert counterclaim a/g 3rd party Π under 13(a), may “” 13(b) or any crossclaim a/g another 3rd party Δ under 13(g)

iv. (3): Π may assert a/g 3rd P Δ any claim arising from T/O subj of Π’s claim a/g 3rd P Π; 3rd P Δ must then assert Rule 12 defenses & 13(a) counterclaims, & may assert 13(b) or 13(g)

v. (5): 3rd P Δ may implead another 3rd P Δ who is or may be liab (infinite regress)

D. Derivative Liability i. “if it’s me, then it’s him” NOT “it’s not me,

it’s him”

ii. Contribution (tort law) or express / implied indemnity (K law)

E. Impleader : i. “Is or may be liable” if incur jdmt

ii. Objections1. Timeliness (14(a)(1))2. NOT “is or may be liable” situation

iii. Factors ct looks at:1. Deliberate delay?2. Impleading would cause undue delay /

complicate trial3. “” prejudice 3PΔ4. Relief cannot be granted

F. Price v. CTB, Inc. i. Π sued Δ over defective chicken houses; Δ

moved to implead nail manuf, who argues improper under Rule 14

ii. R : NOT allowed when based on sep & indep claim, or solely liab to Π / “him, not me”1. Does NOT create substantive liab2. Rule 14 merely procedural, app depends

on contrib. or indemnitya. E.g. if AL didn't recognize indem,

would NOT have been properG. Justifications for Rule 14

i. NO Joinder two lawsuitsii. Efficiency

iii. Reasons Attractive to Δ1. Have someone else foot bill2. Delay, Π’s XP

V. IMPLEADER & SUPP J(x) A. See examples, p. 761B. Owen Equip. v. Kroger

i. N : b/f § 1367, which codifies holding (w/ exception for FQ j(x))

ii. Π Kroger (IA) e’ee of Steel Co., electrocuted; suit a/g Omaha Power (NB) based on div j(x)

iii. OP impleads Owen Equip, crane manuf, who later asserts PPB is IA, which kills div1. OP now out of case, only Kroger and OE

iv. Analysis : Π could defeat div by suing only div Δs, then wait for them to implead non-div Δs

v. R : §1367(b): if orig j(x) div, NO supp j(x) over claims by Π a/g Ps impleaded by R. 14 … when exercising such j(x) would kill diversity

C. Analysis Framework i. Do Rules allow joinder?

ii. Is there j(x)?1. FQ: joined claim arises under fed law2. Div: complete div of citizenship & claim

> 75K3. Supp:

a. (a): orig claim based on FQ, j(x) if joined claim arises from same C/C

b. (b): “” div, j(x) if same C/C unless claim by Π a/g P joined under 14,19,20, or 24 AND kills div

VI. COMPULSORY JOINDER - NECESSARY PsA. Overview of Rule 19

i. (a): P “indispensible,” so that MUST be joined if feasible? If YES, consult (b)

ii. (b): if above P can NOT be joined, should court go forward anyway?

iii. Trigger: motion to dismiss (A or 12(b)(7)) for absence of one or more interested indiv

iv. Argument: justice NOT served if proceed w/out some non-P

v. Analysis Framework:1. Joinder necessary? N, deny; Y, next step2. Joinder feasible? If Y, join; N, next step.3. P indispensible? Y, dismiss; N, deny.

B. 19(a)(1) : if subj to SoP & joinder will not kill SMJ, MUST be joined if…

i. (A) W/out P, can NOT afford comp. relief for existing parties; OR

ii. (B) P claims int relating to action, & disposition of action in P’s absence may…1. (i) Impair / impede protection of int;2. (ii) Leave existing P w/ susbt. risk of

incurring double, multiple, or o/w inconsistent obligations b/c of int

iii. *Balance w/ Π’s right to be master of claim*C. Temple v. Synthes Corp - 19(a)

i. Π had device implanted, complications; sued manuf in fed ct; later, sued MD in state ct

ii. Manuf did not implead MD, but sought dismissal for failure to join necessary Ps

iii. H : NOT indispensible Ps1. TF w/ usual J&S liab merely permissive

iv. N: 19 typically applied only if nexus b/t prop ownership, K rights, or oblig b/t Ps & non-Ps

v. Notes:D. FRCP 19(b) : if can NOT join, court must determine

if, in equity & good conscience, should proceed or dismiss. Factors…

i. (1) extent jdmt might prejudice P or existing P;ii. (2) “” prejudice could be lessened / avoided by

iii. (A) protective provisions in jdmt;iv. (B) shaping relief; ORv. (C) other measures

vi. (3) Whether jdmt rendered in P’s absence would be adequate; AND

vii. (4) “” Π would have adequate remedy if action dismissed (other forum?)

E. Helzberg’s Diamond v. VW Shopping Ctr - 19(b)i. H leased prop from VW; K stated no more

than 3 jewelry stores in center; VW breachesii. H sought injunction; VW moved to dismiss for

failure to join 4th jewelry store (Lords) iii. H : b/c injunction could potentially halt Lord’s

operation, 19(a) met. Not subj to PJ, t/f consult (b)…1. No prejudice to Lords, b/c will not be

bound by jdmt2. Any prejudice to Δ b/c of own

wrongdoing (dirty hands)iv. Cooper : likely got wrong

1. Too much prejudice w/out Lords2. Adequate remedy: state ct lawsuit

VII. INTERVENTION

A. Non-P argues justice NOT served w/out interventionB. 24(a) - Intervention of Right : if timely (no

prejudice), ct MUST permit P to intervene who…i. (1) has unconditional statutory right; OR

ii. (2) claims int in subj of action, & disp, as prac matter may impair/impede protection of int, UNLESS adequately rep by existing parties

iii. N : §1367 precludes intervention if kills divC. NRDC v. USNRC

i. NRDC sought DJ & injunctive relief to obtain license w/out environmental impact stmts;

ii. USNRC, along w/ states, may issue licenses; KM, potential recipient, moved to intervene

iii. Analysis : 1. Does KM have int under 24(a)(2)? Y,

b/c largely involved in mining uranium, jdmt will have profound effect on KM

2. Chance of impairment sufficient “”? Y. Not just res judicata, but stare decisis. Any re-litigation will be in this j(x).

3. Adequate rep by existing P? N. Other P already rec’d license, t/f LH of compro

iv. PP: value in having Ps b/f ct, e.g. will bind PsD. Hypo : 2 Ps injured in fireworks display. NO

interventioni. Suits identical, but damages diff

ii. NOT like NRDC, b/c private suit b/t private PsE. 24(b) - Permissive Intervention

i. (1) If timely, may intervene if P has…1. (A) statutory (fed) conditional right; OR2. (B) claim/defense sharing common Q of

law or fact w/ main actionii. (2) By Gov’t Officer or Agency

iii. (3) Delay or Prejudice

X. DISCOVERY: RELEVANCE & DUTY TO PRESERVE EVIDENCE

I. INTRODUCTION A. Pros of Broad Discovery

i. No surprisesii. More settlements / SJs

iii. More cases decided on merits???iv. Less trials???

B. Cons of Broad Discovery i. Expense / Time Consuming

ii. Over / under discovery problemiii. Less cases decided on merits???iv. Less trials (maybe, value in juries)???

C. General Characteristics i. Party initiated; judge intervenes only if dispute

ii. Judge given extraordinarily broad discretion (can’t immediately appeal)

iii. Generally, only info discoverable is…1. Relevant to claim/defense; AND2. NOT privileged

D. Stages of Discovery i. Mandatory Disclosure: info parties may use to

support own claims/defenses (26(a))ii. Further requests for info relevant to claims /

defenses (26(b))1. More detail a/b previous disclosures

2. One P wants in, one doesn’t3. By leave of ct for good cause shown

iii. Informal discovery is ongoing!E. Ends Lawsuits in Two Ways …

i. Produce info a/b lawsuits merits so Ps can make informed decisions a/b strength of case

ii. time & XP may wear down P, w/o/r/t meritsF. 26(b)(1) : Who, What and When

i. W/ good cause and ct’s approval, P may seek discovery of any non-privileged matter relevant to any Ps claim/defense

ii. Relevance: info tends to prove / disprove something law says matters

iii. Block inquiry into matters not R-ly calc to lead to discovery of admissible evidence

II. 26(b) - DUTY TO DISCLOSE; GEN. PROVISIONS GOVERNING DISCOVERYA. (1) - Scope in General (see above)B. (2)(C): ct must limit frequency/extent if…

i. (i) UR-ly cumulative/duplicative, or available elsewhere > convenient or < exp/burdensome

ii. (ii) already had ample opp to obtain info; ORiii. (iii) burden/XP > likely benefit considering…

1. Case’s needs;2. Amt in controversy;3. P’s resources;4. Importance of issues at stake; AND5. “” of discovery in resolving those issues

C. Davis v. PreCoat Metals - Relevant Infoi. Π AAs allege hostile work envir; sought

discovery of complaints from other e’eesii. R : “any non-priv matter relevant to P’s claim or

defense;” need not be admissible, but must be R-ly calc to lead to admissible evidence1. Hw/, must be R under the circum

iii. Analysis : in discrim, Π must demonstrate prima facie case, then burden shifts to Δ1. Here, complaints relevant to est pretext2. Ltd req to race / nat’l origin discrim

complaints from e’ees at same plant3. Narrowly tailored to particular conduct &

time periodD. Steffan v. Cheney - Irrelevant Info

i. Π left NA after admin recommended discharge; based on his stmt he was homo, not conduct

ii. Π challenged C-ality, refused to A depo Qs a/b homo acts (5th Amd. & relevance)

iii. I: 37(b)(2) dismissal abuse of discretion?iv. H : Yes.v. SoR : confined to grounds action was based

vi. A : relevance of acts did not matter, b/c action not based on acts but Π’s stmts

E. Reconciling Davis and Steffan i. If Steffan claim discrim b/c of homo conduct,

would be relevantii. Steffan holding very narrow

F. Examples i. In auto/N case, Π can NOT discover size of Δ’s

bank acctii. H/w, if Π seeking punitives, and law makes

such info a factor, CAN discover

iii. Existence of liab ins not relevant, h/w 26(a)(1)(A)(iv) makes discoverable. Why?1. Facilitates case (PP)

III. DUTY TO PRESERVE EVIDENCE: SPOLIATIONA. Discovery assumes info somewhere, ready for use

i. Parties should have equal accessii. Ct has inherent power to ensure fairness

iii. Once litigation R-ly foreseeable, duty arisesB. I : what if relevant info willfully destroyed, lost

through N, or thrown away in OCOB b/f requested?C. Silvestri v. GM

i. Π wrecked car, airbag didn’t deploy; attny nor Π preserved vehicle; suit filed 3 yrs later

ii. I : sanction appropriate?iii. Spoliation : destruction or material alteration of

evidence, or failing to preserve prop for another in pending / R-ly 4Cable litigation1. Ct’s discretion ltd to that necessary to

redress conduct abusing judicial process2. Must find some degree of fault; avoid

dismissal if lesser would serve f(x)a. “Severe” “ultimate sanction”

3. If don’t own/possess evidence, still have duty to notify opposing P

iv. Analysis: Δ suffered severe prejudice, b/c was only evidence avail for defense

v. N: Π may have mal prac claim if can prove would have won underlying case o/w

D. If Δ destroys, ask ct to deem elements proven

XI. INITIAL DISCLOSURES, ASKING QS IN WRITING

I. INTRODUCTION A. Stages of Discovery

i. Initial Meeting of Parties & Disclosures1. After pleadings; discuss issues

ii. Scheduling Conference w/ Judge; Order1. 16(b): must issue ASA practicable, but

w/in earlier of…a. 120 days after compliant served; ORb. 90 days after any Δ has appeared

2. 26(f): Conference; Planning for Discoveryiii. P-Initiated Discovery; Ps decide order! Tools:

1. Interrogatories: Who’s in charge of what? Where are records? What docs u got?

2. Requests for Admissions (pleading???)3. Productions of Docs & Things4. Depositions: elicit & freeze story

B. Timeline i. Complaint

ii. Responseiii. Party Conference (26(f))iv. Report of Conference to Court (26(f)(2))v. Scheduling Order (16(b))

vi. Party Discoveryvii. Expert Disclosure

viii. Trial DateC. Strategic Considerations

i. Gen., use inexpensive methods 1st, then deposii. Only rule: must make req initial disclosures 1st

D. Initial Disclosures i. Innovation in 2000 amendments to Rules

ii. 26(a)(1): info that “disclosing P may use to support its claims / defenses…1. (i) Names / locations of witnesses2. (ii) Doc copies or description by

category / location3. (iii) Damages computation4. (iv) Insurance policy

iii. 26(a)(1)(B): exempts small # of casesE. Overview of Rule 26, The “Master Rule”

i. (a): mandatory disclosure reqii. Provision allowing further discovery w/out

special showing, ltd by relevanceiii. (b)(1): broader discovery into action’s subj

matter if demonstrate good cause

II. 26 - REQUIRED DISCLOSURES A. (a)(1) - Initial Disclosure (see supra) B. (a)(2) - Disclosure of Expert Testimony

i. (A) Must disclose ID of witness who will present evidence at trial under FrE 702-05

ii. (B) Must include written/signed report if witness paid or is e’ee, containing…1. (i) Opinions basing stmts on;2. (ii) Data or other info used to form;3. (iii) Exhibits used / will be used;4. (iv) Qualifications, e.g. past publications;5. (v) all other cases during last 4 yrs; AND6. (vi) Compensation

iii. (C) Must make disclosures @ times/sequence ct orders. Unless stipulated/ordered, must be made1. (i) at least 90 days b/f trial date

C. (a)(3) - Pretrial Disclosures (not much added here)i. Expert witness info

ii. Other evidence to be offered at trial (any witness’ info)

D. (b)(4) : may depose expert after written report provided

E. (e)(1) : must supplement if info obtain new info or need to correct (e.g. receive another med bill)

III. 37(c)(1): FAILURE TO DISCLOSE OR SUPPi. If “”, can NOT use info or witness to supply

evidence, unless failure susbt. justified or harmless. After opp to be heard, ct may…

ii. (A) order pmt of R XP, including attny’s fees;iii. (B) inform jury; ANDiv. (C) impose other sanctions (listed in 37(b)(2)

(A)(i)-(vi)

IV. INTERROGATORIESA. Pros : typically much cheaper for pro-pounder

i. Draft Qs, send to opponent, wait for Asii. Good at ID-ing persons and docs not listed in

initial disclosuresB. Cons : can’t follow up evasive As w/ pointed Qs

i. T/f, going past routine/specific Qs not helpfulii. Ltd to 25 Qs (unless permission from ct / P)

iii. Can only send to P, NOT non-P witnesses (depose instead)

C. 33 - Interrogatories to Parties

i. (a)(1) Limit of 25ii. (a)(2) May relate to any matter discoverable

under 26(b); not objectionable merely for Q a/b opinion on fact or applying law to fact, but ct may stay interrogatory until designated disc

iii. (b)(1) Must be answered by…1. (A) P directed too; OR2. (B) Officer or agent

iv. (b)(2) P has 30 days to respond w/ Asv. (b)(3) Must A each fully in writing under oath.

1. If don’t, 1st call & follow up w/ letter (judges hate discovery).

2. Then, move to compel. 37(a)3. “What’s good for goose good for gander”

vi. (b)(4) State obj grounds w/ specificity; waive if not timely, unless ct for good cause excuses1. N: shifts burden back to pro-pounder2. N: 26(c) protective order also available

vii. (b)(5) P A-ing signs; objecting attny must signviii. (c) As usable to extent allowed by FrE

ix. (d) If As involve B records, & burden of depriving or ascertaining A subst. same for both P, responding P may…1. (1) Specify records so that pro-pounder

may locate / ID as readily as other P; &2. (2) Give pro-P R opp to examine records

V. ADMISSIONSA. Purpose : lock in factsB. Procedure : ask opp to admit / deny certain facts

i. Unlike pleadings, both Π & Δ get equal oppii. Once admitted, conclusively est for trial (unless

ct permits w/drawl or amendment)C. More like pleading, but similar to interrogatories…

i. Usable only a/g partiesii. In writing

iii. Relatively cheapiv. Ltd utility, e.g. remove essentially undisputed Is

D. Timing : after 26(f) conferenceE. Std : anything relevant under 26(b)(1)F. 36 - Requests for Admission

i. (a)(1) Serve written request to admit truth of matter relevant under 26(b)(1) relating to…1. (A) Facts, law applied to facts, & opinions

a/b either; AND2. (B) Genuineness of any described docs

ii. (a)(2) Separately state each matter (don’t be too broad)

iii. (a)(3) 30 days to respond, unless stipulated or ct order. If don’t matter admitted.

iv. (a)(4) Must admit, specifically deny, or state why can’t truthfully do either. Denial must fairly respond to substance of matter.1. If lack K / info, must state made R inquiry

v. (a)(5) Must state obj grounds; not objectionable that request presents genuine issue for trial

vi. (b) Admission conclusively est matter only for purposes of proceeding

XII. REQUESTS FOR PRODUCTION OF DOCS & THINGS

I. INTRODUCTIONA. A/g, come after 26(f) conference, and disclosures

required by 26(a).i. No # limit

ii. Std: anything relevant under 26B. “Doc” defined very broadly. See 34(a)(1)(A)

i. Includes elec dataii. Belt & suspenders approach

C. Response / Objections in 30 days. See 34(b)(2).D. Docs must be produced …

i. According to category; ORii. As kept in OCOB. See 34(b)(2)(E)

E. Nuance : request made to P or non-P?i. P Rule 34 Request

ii. Non-P similar, but must include subpoena issued under Rule 45(a)(1)(A)(iii). See 34(c)

II. 34 - REQUESTS FOR PRODUCTIONA. (a) May request w/in scope of 26(b)…

i. (1) Production / permission to inspect, copy, etc. following items:1. (A) Doc / elec info / data compilations; 2. (B) Any tangible things; OR

ii. (2) Permission to enter land / prop to inspect, photograph, etc.

B. (b)(1) The request:1. (A) Must describe w/ R particularity; 2. (B) “” specify R time, place, manner; &3. (C) May specify form in which elec info

is to be produced.C. (b)(2) Responses and Objections

i. (A) 30 days, unless stipulated / ct orderedii. (B) Respond to each item

iii. (C) Must specify part objecting to, and permit inspection of remainder

iv. (D) Responding to Request for Prod of Elec Stored Info

v. (E) Procedure1. (i) Must produce in manner kept in

OCOB or organize / label;2. (ii) If elec, produce in manner ordinarily

maintained or in R-ly usable form; AND3. (iii) Need not produce same elec info in

> one formD. (c) Subpoena for non-Ps

III. 35 - PHYSICAL & MENTAL EXAMINATIONSA. (a)(1) : Ct may order P whose mental / physical

condition in controversy to be examinedB. (a)(2)(A) : ONLY on motion for good causeC. (b)(3) : moving party may request like reports of all

earlier or later examinations of same condition

XIII. ASKING QS IN PERSON: DEPOSITIONS

I. INTRODUCTIONA. Advantages

i. Can ask series of Qs, force witness to take position on issue

ii. Can follow up w/ more Qs if witness evasive, or if opens up new avenues of inquiry

B. Disadvantage : bloody expensive

C. Goals i. Gain info

ii. Get admissionsD. Procedure

i. 30(b)(1): P issue “Notice of Dep Pursuant to Rule 30”

ii. 30(a)(1): non-P issue subpoenaiii. W/out permission, limit of 10 @ 7 hrs each.

See 30(a)(2)(A)(i).E. Common Issues

i. Depose a company? 30(b)(6)ii. What Qs can witness not A?

iii. What Qs witness must A even if “improper?” 30(c)(2)1. Theory?

iv. What if witness refuses to A?

II. 30(a) - WHEN?A. (1) W/out Leave (except as provided in (a)(2)).

May compel attendance w/ Rule 45 subpoena.B. (2) P must obtain, and ct must grant, leave to extent

consistent w/ 26(b)(2): i. (A) If Ps have not stipulated to dep and

1. (i) already reached limit of 10;2. (ii) Deponent already been deposed; OR3. (iii) Deposition b/f time in 26(d), unless

deponent leaving country; ORii. (B) Deponent in prison

III. 30(b) - NOTICE REQUIREDA. (1) : Must give R written notice of time & place, and

if known, name & address of deponentB. (6) : If notice direct to organiz / B, must describe w/

R particularity matters. B then designates officer, etc. to testify.

IV. 30(c) - EXAMINATION & OBJECTIONSA. (1) : exam / cross-exam same as at trial under FrEB. (2) : if object, noted in record, but deposition

proceeds. Must be concise / non-argumentative / non-suggestive. Instruct not to A ONLY if…

i. Necessary to preserve privilege;ii. Enforces ct ordered limit; OR

iii. Present motion under 30(d)(3)

V. 30(d) - DURATION; SANCTION; MOTION TO TERMINATE OR LIMITA. (1) Unless stipulated or ct ordered, 1 day, 7 hours.

Add’l time if necessary to fairly examine deponent.i. N: ask imp Qs first!

ii. Counter: opponent hindered ability to finishB. (2) May impose sanction, including R attn’y fees, on

person who impedes, delays, or frustrates C. (3) (A) At any time, may move to terminate or limit

if in BF or UR-ly annoy, embarrass, or oppresses deponent or P. May be suspended to obtain order.

XIV. LIMITATIONS ON DISCOVERY IN AN ADVERSARY SYSTEM

I. TOPICAL OVERVIEW

A. Some info relevant, but FRCP still place outside of discovery’s reach. Why?i. Privileged Info. See 26(b)(1)

ii. Trial Preparation Material. See 26(b)(3)iii. Expert (non-testifying info). See 26(b)(4)iv. Overly Burdensome Discovery. See 26(b)(2)v. Overriding Privacy Concerns

II. PRIVILEGEA. GR : may discover any non-privileged matter

relevant to any P’s claim or defense. 26(b)B. State or fed CL, depending on which governs case,

but fed for attny WPC. Privilege & Relevance

i. Relevance ties discovery & evidence into substantive law; matter of inference & common sense, NOT technical law

ii. Irrelevant: substantive law denies signif of info (e.g. motive for K breach)

iii. Privilege trumps relevance; NOT intuitive, but technical / detailed

iv. Privileged: something more imp than case’s “correct” result (e.g. relational privileges)

D. 26(b)(5)(A) : if claim privilege, P must…i. (i) Expressly make claim; AND

ii. (ii) Describe nature of things not disclosed in manner that will protect privilege, but also enable other P to assess claim

iii. N: rule applies to trial prep materials infraE. Attorney/Client Privilege

i. Protects comm. among privileged persons in confidence for purpose of getting legal advice

ii. Comm. privileged, facts/pre-existing docs NOT1. Fact “How fast were you driving?”2. Comm. “What did you tell attny?”

iii. Absolute, unless waived (implied, express, inadvertent)

iv. Upjohn: for corps, comm. b/t attny & corp’s e’ees privileged, if 1. W/in employment scope; AND 2. In confidence for obtaining legal advice

F. Docs removed from privilege must be listed on “privilege log.” See 26(b)(5).

G. See Disclosure & Discovery Flowchart, slide 44

III. TRIAL PREPARATION MATERIALA. 26(b)(3) - Trial Preparation: Materials

i. (A) Ordinarily may not discover docs/tangibles prepared in anticipation of litigation or trial. But, subj to Rule 26(b)(4), exception if…1. (i) O/w discoverable under 26(b)(1); AND2. (ii) P shows subst. need & cannot, w/out

undue hardship, get subst. equivalentii. (B) “Opinion WP” remains immune.

B. Hickman v. Taylor i. Tug boat sank w/ 4 survivors; Δ attny took there

stmts; 4 claims settled, 1 later brought, req info & was refused

ii. H : relevant/unprivileged, but NOT discoverableiii. PP : purpose of discovery not to help attnys do

jobs “w/out wits or w/ wits borrowed from opp”iv. S : led to 26(b)(3), WP privilege

C. Scope / Limits i. Applies to non-lawyers, e.g. P’s reps “including

consultant, surety, indemnitor, iR, agent.”ii. P or witness may obtain cop of own written /

recorded verbatim stmt. 26(b)(3)(C)D. Attny Client Privilege v. Work Product

Source: laws of evidence 26(b)(3)Absolute Immunity Qualified “”Narrower: Comm. Only Broader: All tangible and

intangible materialBroader: comm. seeking legal advice a/b any subject

Narrower: must be created in anticipation of litigation

Facts themselves never priv “” never work product

IV. EXPERT INFOA. FrE 702 : “qualified as expert by K, skill, experience,

training, edu, or o/w”B. Common Issues

i. How do Ps find out a/b experts?ii. “” prove expert’s qualifications & scientific

validity of methods?iii. “” find out expert’s conclusions?iv. “” probe expert’s opinions?

C. The Rule’s Answers i. IDs of Experts

1. 26(a)(2)(A): disclose potentially testifying2. Here, parties know a/b from outset

ii. Qualifications & Contents of Opinions1. 26(a)(2)(B): testifying Es must submit bio

& report2. 26(b)(4)(B): no similar req for non-testify

Es, e.g. can shield (qualified immunity)iii. Probing / Testing E Testimony

1. 26(b)(4): routine depos of testifying E; special showing for nona. Cooper: can be gold

2. Expert created materials - rule changinga. Qualified WP protection for earlier

drafts of comm. b/t E & attnyD. Non-Testifying E : not testifying b/c…

i. Conclusion didn’t match case’s theory (opponent hopes it’s this)

ii. Good science, bad witnessiii. Good conclusions but flunk Daubertiv. Fee dispute, better witness, etc?v. P wants option to have frank, non-discoverable

convos w/ EE. 26(b)(4)(B) - Expert Employed Only for Trial Prep

i. Something more alluded to supra…1. (i) As provided in 35(b) [med exam]; OR2. (ii) Exceptional circum make

impracticable for P to obtain facts / opinions on same subj by other means

F. Thompson v. The Haskell Co.i. Π alleges depression and firing after sexual

harassment; saw psychologist 10 days after firing; attempted to shield results via 26(b)(4)

ii. A: mental/emotional state 10 days after firing highly probative w/r/t Π’s claim1. No comparable report w/in relevant time

G. Chiquita Int’l Ltd. v. M/V Bolero Reefer

i. Bananas destroyed after left on wharf; Π wanted Δ’s non-testifying E’s report; Π argued fact witness, or exceptional circum

ii. R : not fact v. opinion, but E in OCOB v. E hired in anticipation of litigation

iii. H : here, non-testifying expert immune iv. A : Π was not precluded from sending own E

1. H/w, info NOT made exempt merely by conveying to non-testifying E

2. T/f, recorded opinions / observations not disclosed, but other info discoverable

v. Why Deny Discovery?1. Relevance?2. Privilege?3. WP?4. Is this sheer litigant laziness?

H. N : See slide 59 decision tree slide

V. DISCOVERY & PRIVACYA. Aim : uncover truth & permit jdmts on merits

i. Truth sometimes hurtsii. System seeks to shelter Ps from excessive disc

iii. Here, privacy invasion so great, it trumps need to discover info, so that not going to allow it

B. 26(c) - Protective Orders i. (1) For good cause, ct may order protection

from annoyance, embarrassment, oppression, or undue burden / XP by…1. (A) forbidding disclosure or discovery;2. (B) specifying terms (time/place) for “”; 3. (C) prescribing method; 4. (D) forbidding certain Qs, or limiting

disclosure/discovery scopeC. Stalnaker v. K-Mart

i. Sexual harassment case; Π wants to depose other e’ees, who moved for protective order1. Π: smearing Δ’s reputation2. Δ: irrelevant

ii. R : 26(c)iii. A : good cause to bar voluntary romantic/sexual

acts to extent don’t relate to Π’s claims1. H/w, sexual harassment IS relevant

iv. N : court has broad discretion under 26(c)1. Rule balances need a/g collateral harm2. No real way to draw lines at outset

v. N: Π may later argue laying foundationD. Physical & Mental Examinations

i. 35: allows when mental / physical condition “in controversy” & upon showing of “good cause”

ii. If Π ask for damages from physical / mental injury, have put in controversy

iii. Same for Δ, e.g. mental incomp to enter KE. PoP, Relevance and Privacy

i. Clinton’s Arguments:1. Going back 20 yrs overly broad, beyond

governor yrs irrelevant2. Haven’t gotten to punitives yet3. Embarrassing to other women & Clinton

ii. Jones’ Arguments:1. Prejudice > probative value bad doesn’t

matter, b/c test: “could lead to admissible”

2. Need info for punitives, but more than that, goes to case in chief

3. Definition of “consensual” unclear4. Δ’s arguments better for later stage, e.g.

trial MiL, etc. (prejudging evidence)iii. Diff from A/C or WP, b/c not categorical

exclusion, but balancing testF. How can non-P protect itself?

i. 26(g): general provisions preventing abuseii. 26(c): party may seek protective order; judge

has broad power1. Expensive, so P often makes for them

iii. 45(c)(3): Quashing / Modifying Subpoena

XV. ENSURING COMPLIANCE & CONTROLLING ABUSE OF DISCOVERY

I. ENSURING COMPLIANCEA. Generally …

i. 37: controls failure to make disclosures or cooperate; also provides sanctions

ii. 26(g): req signatures, & punishes parties for unjustified requests / refusals (like Rule 11)

B. 26(g) - Signing Disclosures & Disc Requests, Responses, & Objectionsi. (1) Signature req; certifies that to best of

signer’s K, info, & belief after R inquiry:1. (A) Disclosure complete & correct when

made; AND2. (B) Disc request, response, or objec is…

a. (i) Consistent w/ rules & warranted by existing law / non-friv argument;

b. (ii) not to harass, cause unnecessary delay, or needlessly suit’s XP; &

c. (iii) Neither UR nor unduly burdensome considering circum.

ii. (2) NO duty to act on unsigned doc; ct must strike it, unless promptly corrected

iii. (3) Violation w/out subst. justification must be sanctioned a/g signer, P whom signed for, or both; may include R XP, including attny fees, caused by violation

II. AN ANATOMY OF DISCOVERY ABUSESA. Background

i. Discovery normally out of judges domainii. H/w, sometimes, courts intervention necessary

B. Patterns of Discovery i. Stonewalling (too little discovery)

1. Too many objections2. Prob: little ct involvement (parents gone)

ii. Scorched Earth (too much “”)1. Ps seek everything arguably entitled too

iii. Mismatched “” (d/t signif unequal resources)iv. Who’s to Blame?

1. Rule structure2. Adversary system3. Judges / lack thereof

C. Tools for Managing Abuses i. Limits on Discovery

1. See 26(b)(1), 26(c), & 26(g)ii. Sanctions for Bad Behavior

1. See 26(g) & 37iii. Judicial Supervision

1. See 16D. Typical Dispute : party issues discovery request,

receives inadequate or no response.i. 1st: try to work it out! See 37(a)(1)

ii. 2nd: Obtain ct order compelling disclosure. See 37(a)(3)(A)1. NO $ sanctions if subst. justified. 37(a)

(5)(A)(ii)iii. 3rd: get sanctions for failing to comply w/ order.

See 37(b)(2)(A)E. 37(a) - Motion for Order Compelling Disclosure or

Discoveryi. (1) Must notify other P b/f moving to compel.

Show GF confer or attempt to confer ii. (3)(B)(iii) May move to compel A if party fails

to A interrogatoryiii. (4) Evasive / incomplete stmt treated as failure

to disclose, A, or respond. iv. (5)(A) If motion granted, or discovery provided

after filed, ct must, after opp to be heard, req wrongdoer to pay movant’s R XP, unless…1. (i) Motion filed b/f GF attempt to obtain

disclosure/discovery w/out court action; 2. (ii) Opp P’s nondisclosure, response, or

objection was subst. justified; OR 3. (iii) Other circum render XP award unjust.

F. 37(b)(2) : If don’t obey ct order, ct where action pending may issue further orders, including…i. (i) Take designated facts as established;

ii. (ii) Prohibit disobedient P from supporting or opposing designated claim / defenses, or from introducing designated evidence;

iii. (iii) Striking pleadings in whole or in part;iv. (iv) Staying proceedings until order obeyed;v. (v) Dismissing or proceeding in whole / part;

vi. (vi) Default jdmt a/g disobedient P; ORvii. (vii) Contempt trtmt unless order was physical /

mental examinationG. Theory of “Meet & Confer” Req ( 37(a)(1) )

i. Parties will either…1. Realize can solve by themselves;2. Narrow scope of disagreement

ii. Result: “cost” of motion AND Rambo tactics1. MUST doc efforts to resolve in GF (letter)2. Consequences if refuse to discuss

H. Failure to Show Up - 37(d) i. (1)(A)(i): can seek sanctions

ii. (3): any available in 37(b)(2)(A)(i)-(vi)I. Practical Lesson :

i. If think discovery / disclosure inappropriate, can NOT say nothing.

ii. MUST send objections or file protective orders!

III. REMEDIES: MGMT & SANCTIONSA. I : Enormity/complexity of data mgmt, combined w/

poor comm. & inattention to detail. Ct must ask:i. Who made mistake?

ii. Culpability level?iii. Remedies?

B. E-discovery : addressed to info stored electronically

C. Zubulake v. UBS Warburg LLPi. Π sues e’er, wants emails stored on Δ’s sys; Δ

1st ordered data retention, but yr later stopped; ii. Π: spoliation & adverse inference instruction

iii. SoR : TJ discretion to order spoliation sanctionsiv. R : duty to preserve arises only when…

1. P has notice evidence relevant to litigation2. P should have known “”

v. R : once R-ly anticipate, must suspend routine doc retention/destruction for litigation hold

vi. Adverse Inference Instruction: destroyed evidence b/c realized unfavorable1. Extreme; not given lightly2. Elements:

a. Obliged to preserve when destroyed;b. Culpable state of mind; ANDc. Evidence relevant to P’s claim or

defensevii. H : 1st two elements met, but instruction inapp

1. N, not BF, so P seeking sanction has BoP2. Emails produced didn’t give relevant

evidence, no reason to think will changeviii. Why different than Silvestri?

D. Elec Age Changing Discovery Rules ?i. 26(f)(3)(C): specifically mentions “elec stored

info”ii. 26(b)(2)(B): specific limitations on discovery

of elect infoiii. 26(b)(5)(B): “claw-back” provision for priv

material inadvertently provided iv. 37(f): sympathy for destruction during routine,

GF operation of elec info sysv. BP : changes more in practice, NOT in rules.

E. Changes in Practice of Law ?i. expenses and complexity

ii. Advent of e-discovery consultantsiii. Hysteria (especially older generation)

IV. PoP, SANCTIONS A. Most sanctions imposed while case ongoing, often

while discovery still ongoingi. Here, sanctions imposed after case had ended

B. What was Clinton sanctioned for? LYING.C. Did Judge have authority to sanction Clinton?

i. 37(b)(2)ii. Policy arguments for/against?

D. How did Judge Wright calculate the sanction?

XVI: RESOLUTION W/OUT TRIAL: DEFAULT, FAILURE TO PROSECUTE, VOLUNTARY DISMISSAL

& SETTLEMENT

I. INTRODUCTION A. Review : 2 % of civil cases end in trial; maj end in

settlement, followed by non-trial adjudicationB. “A Trial is a Failure”

i. Inability to settle, or agree to resolve dispute outside of the formal litigation processes

C. How Suits End W/out Adjudication

i. Abandonment by Π (merits or inadequate financing)

ii. Contractual Resolution1. Different forum, e.g. arbitration2. Settlement: Ps, mediation / 3rd Ps, or judge

D. Adversary sys designed to push cases forwardi. Default Jdmt: Δ failing to defend face under 55

1. Con: case not decided on merits2. N: not allowed in criminal cases

ii. Involuntary Dismissal: Π failing to prosecute case face under 41

II. DEFAULT JDMTSA. 55 - Default; Default Judgment

i. (a) Default issued by clerk when Δ fails to plead or o/w defend

ii. (b) Entering a Default Judgment. 1. (1) By Clerk: sum certain or liquidated

damages in complaint, Δ didn’t show2. (2) By the Ct: Π must ask & notify Δ at

least 3 days b/f hearing to …a. (A) Conduct an accounting;b. (B) Determine damages;c. (C) Est truth of any allegation by

evidence; ORd. (D) Investigate any other matter.

iii. (c) Ct may set aside for good cause, or under 60(b) (final jdmt relief).1. Plausible reason (illness / emergency)2. 60(b): NO notice; excusable neglect

iv. N : P initiated, whereas involuntary dismissals can be sua sponte

v. N : if seek extension for other P, get in writing, & ask for ct’s permission (6(b))

B. Peralta v. Heights Med. Ctr.i. Hospital sued patient for debt; didn’t show, DJ;

2 yrs later, wanted set aside for ineffective SoPii. R : jdmt entered w/out SoP VOID

iii. A : Π may have impleaded 3rd Ps, settled, or pd1. Also, could sell prop himself2. Violates DP Clause of 14th (states)

iv. BL : Notice as Precondition; ct’s reluctanceC. Common Scenarios

i. Δ has no defense / assetsii. Δ’s attny forgets deadline

iii. Δ’s attny abandons him, b/c of personal Isiv. N : Δ can sue attny for mal prac

1. Ins not req2. Some j(x) have mal prac protection fund

(limited protection)v. N : Clinton could have defaulted to avoid mess

D. Analysis Framework i. 55(b)(1): asking for sum certain? If no…

ii. 55(b)(2): 3 days notice of hearing, where outline w/ evidence relief sought1. Still public & embarrassing!

III. INVOLUNTARY DISMISSALA. BL : Π’s failure to prosecute or comply w/ ct order

i. Extension of SoL???ii. Unlike default, discretionary

iii. FtP: moving case to completion; rare, typically will warn Π 1st

B. 41(b) - Involuntary Dismissal; Effect i. If Π FtP or comply w/ ct order, Δ may move to

dismiss. Unless w/out prejudice, operates as adjudication on merits.1. Exception to last part: lack of j(x),

improper venue, failure to join under 19

IV. VOLUNTARY DISMISSAL - 41A. Π has right any time b/f Δ answers or files SJ

motion. (a)(1)(A)i. (a)(2): need Δ’s permission or ct order

ii. PP: Δ hasn’t done any work (like amendment)B. Effect

i. (a)(1)(b): Default is w/out prejudiceii. Δ wants dismissal w/ prejudice; also, want

deterrence to other Πs (should negotiate)C. Analysis Framework - Two Stages

i. B/f A (or SJ motion), Π has right. (a)(1)(A)(i) 1. W/out prejudice

ii. Post A, need ct or Δ’s permission. (a)(1)(A)(ii)1. Could be w/ prejudice2. (a)(2) grants court discretion

V. AVOIDING ADJUDICATION A. Negotiation & Settlement: Why & How?

i. Settlement: Ks reached through negotiation1. Release: Π agrees to drop suit for $ or

specific perform; Δ say not confessionii. Good?

1. Both Ps, mostly through counsel, aided by discovery, assess claim value / risk of trial

2. Converging estimates save both sides $, risk, and trial time

3. Avoid bad press? Triggering new Πs?4. Trade secrets / intellectual prop?

iii. Bad?1. Badly counseled Π ground down by Δ w/

> resources2. Δ, scared by small chance of big jdmt,

pays to settle meritless claima. Bad precedent

3. Damaged reputation?4. Rights vindication > $

iv. Lawyers:1. Π / contingent fee: something better than

nothing2. Δ / hourly fee: dislike settlement;

reputation concernv. Approval by judge not necessary (unless class

actions, minors) vi. N: always get written doc addressing…

1. Money2. Release3. Dismissal4. Confidentiality

vii. See various forms usedB. 3 rd Ps: Facilitation, Encouragement, & Coercion

i. Settlements sometimes break down b/c…1. Ps views on case’s value widely diverge2. Communication problems

ii. Mediation v. Arbitration1. Mediation assisted negotiation2. Arbitration trial by arbitrator (binding

or non-binding)iii. Mediation

1. Non-binding, confidential (but reveal weakness), can’t be used in litigation

2. 28 U.S.C. 651: adopt local rules that req litigants in all civil cases consider ADR

3. Ps select mediator (full time pros)4. Con: can’t coerce agreement or rule on

rights / obligations of Ps5. Best in LT relationship cases

iv. Confidentiality: Ps interests conflictC. Contracting for Private Adjudication: Arbitration

i. Overview:1. Contractual alternative to litigation2. No judge/jury, but arbitrator, who tends to

“split the baby”3. Ps design on procedures, control

substantive law4. More private than ordinary adjudication5. Not subj to judicial review, w/ exceptions

ii. Ferguson v. Countrywide Credit Ind. (9th Cir.)1. E’ee signed K submitting to arbitration;

e’er moved to compel2. R : valid, irrevocable, & enforceable,

unless law/equity give revocation groundsa. K defenses, e.g. UC, allowedb. Apply state law governing Ks

3. H : procedural & substantive UCa. Procedural: pre req to employment,

e.g. take it or leave itb. Substantive: one sided terms, shock

conscience iii. Carter v. Countrywide Credit Ind. (5th Cir.)

1. I : Fee splitting provision UC?2. R : strong presumption in favor of validity,

P opposing has BoP3. A : TX law diff than CA, so Π loses here4. N : Perfect Arbitration K

a. Covers all claims;b. Full discovery;c. Not more expensive than court

iv. Ferguson v. Writers Guild of America1. Arbitration to determine credit for movie2. SoR : substantial deviation from policy,

e.g. fraud, corruption, misconduct, exceeding power

3. H : NOT UCa. Writer’s Guild is union, lengthy

bargaining, not rammed down throatb. Counter: pool of arbitrators skewed

4. BL : can deviate from trial, so long as process / procedure protected

v. Summary: Two Basic Routes of Attack 1. K-al Arguments

a. Unfair: fees, one sided discovery, claims covered

b. Fraud, duress, other K defensec. Counter/Ferguson: anything goes if

real bargaining & durable relations

2. Resistance via Special Nature of Claims a. Civil rights: procedures must be as

favorable as courts. Armendarizb. Prop Arb Fairness Act: employment,

consumer, franchise, civil rights UE

XVII. CURTAILED ADJUDICATION: SUMMARY JUDGMENT

I. OVERVIEWA. Adjudicative alternative to trial for cases where facts

NOT disputed, e.g…i. Dispute a/b the law;

ii. Law clear, but P lacked evidence supporting critical element in case

B. 56(a) : SJ granted when movant “shows no genuine dispute as to any material fact, & movant entitled to jdmt as matter of law”i. Reaches legal & factual merits

C. The Basics i. Who? Π or Δ may move for SJ (typically Δs

though). See 56(a).ii. Timing? At any time until 30 days after

discovery (typically at end). See 56(b)1. P can argue premature. See 56(d)

iii. Standard: supra iv. Format: motion, brief, stmt of undisputed facts,

supporting materials, proposed order

II. FRCP 56 - SUMMARY JUDGMENTA. (a) Motion for SJ or Partial SJB. (b) Time to File a MotionC. (c) Procedures

i. (1) Support claim that fact can’t be disputed by1. (A) Citing to particular parts the record2. (B) Show parts do not establish absence

or presence of genuine dispute, or PO cannot produce admissible E supporting

ii. N : NO witness testimony in ct; NO jury

III. FOUR RELATED STAGES OF PROCEDUREA. Stages

i. 12(b)(6) motion; ii. Motion for jdmt on pleadings;

iii. “” SJ;“” DV

B. What’s the difference?i. Partly timing, but mostly their f(x)s

ii. First two test only legal framework; latter two test facts AND law

C. 12(b)(6) v. SJ i. 12(b)(6): would facts, if true, state claim?

1. NOT testing truth of allegations, or supporting evidence

ii. SJ:1. 1st: material facts disputed (no genuine I)? 2. 2nd: do undisputed facts state claim (jdmt

as matter of law)?iii. Ex: Martian ray gun injured Π

1. 12(b)(6): denied, e.g. law recognizes valid claim if facts true

2. SJ: post discovery, ct can grant SJ, b/c now have factual record

D. Celotex Corp v. Catrett - earth shattering casei. Π filed suit alleging asbestos injury a/g 15 Δs;

Δ filed MSJ for failing to show PC; Π had no witnesses, only docs had were HS

ii. TC found for Δ; AC reversed, as Δ gave no evidence to support motion

iii. I : evidence from Δ req, where Π cannot prove essential element on which bear BoP at trial?

iv. R : NO; Δ need not give evidence negating Π’s claim

v. Practical Effect : MSJ by Δ!1. Πs: more discovery, b/c specific facts for

each claim element req to survive MSJ2. Still… Πs must be careful a/b what let out

E. Reconciling Adickes & Celotex : Burden Alignment

Adickes Celotex

At trial, Π has burden of production on critical I

At trial, Π has burden of production on critical I

On SJ, Δ has burden of production on that I

On SJ, Π has burden of production on that I

“I can show I didn’t do it”

“Π can’t show I did it”

F. Directed Verdict v. Summary Judgment i. DV: comes by definition at trial (after MSJ);

PO gives full evidentiary presentationii. MSJ: “” b/f trial, e.g. b/f full evidentiary

presentation1. Q: should case go to trial?2. Purpose: full evidentiary presentation

necessary?G. Bias v. Advantage Int’l Inc

i. Π sued Δ for failure to procure LI; Δ argued no damages, b/c Bias’ wasn’t insurable (drug user), or would deny claim fro fraud/misrep

ii. I : how does Π rebut Δ’s entitlement to SJ?iii. T : show IS genuine dispute as to material fact

1. More than some metaphysical doubt2. Requires specific facts3. Ct draws all justifiable inferences in non-

moving P’s favoriv. H : MSJ for Δ grantedv. Facts v. Inferences :

1. Fact cocaine many timesa. Inference couldn’t obtain policy

2. Fact passed several drug testsa. Inference LI considers multiple

factors, may have been insurablevi. BL : specific testimony by Δ vs. general, biased

testimony by Π

IV. JUDICIAL MGMT OF LITIGATIONA. 16 - Pre Trial Conferences; Scheduling; Mgmt

i. Ct has discretion to order pretrial conferences to discuss virtually any matter relevant to case

ii. (e): pretrial conference results in pretrial order guiding remainder of case & binding Ps

iii. (b): scheduling conference to deal w/ amendments, motions, disclosures, & discovery

iv. (c): may est time limits for filing certain motions, & encourage settlement

B. Sanders v. Union Pacific RRi. Π’s attny failed to meet several deadlines; at

final pretrial conference, Π asked for extension, judge dismissed w/ prejudice

ii. I : was dismissal abuse of discretion?iii. H : YES. Π attny had no opp to be heard, &

judge had law clerk hold conference C. Managing Litigation Bound for Trial: Pretrial Order

i. Simplify issues for trial through pretrial orderii. Contains matters agreed upon by Ps or decided

by judge at pretrial conferenceiii. May be modified “only to prevent manifest

injustice.” 16(e)iv. I: ca P raise at trial Is not mentioned in order?

D. McKey v. Fairbairni. Slip & fall; pre trial order said sole I was N; Π

wanted to raise SL under reg; deny amendment ii. I : abuse of discretion?

iii. H : NO. “Justifiably large discretion.”1. Here, judge relying on adversarial system2. Counter: P suffering for attny’s mistakes;

Rule 1: “decide all cases on merits”iv. Dissent : failing to consider all applicable law IS

“manifest injustice”v. N : Π could have moved to amend pleadings via

15(a); h/w, ct permission still req at this stage

XVIII. THE TRIER & TRIAL

I. OVERVIEW OF TRIALSA. Role of Jury

i. Fact Finderii. Apply law to facts / make law (?) – was

conduct “R?”iii. Voice of Community, e.g. “RPP in SSC?”iv. Political Role

B. Limits on Juries i. SJ: some cases NEVER get to the jury (ironic

that take easiest cases away from jury)ii. Excluding Improper Influence: limit info jury

can consider1. Jury selection (voire dire)2. FrE3. May not talk to non-jurors or do own

researchiii. Judge instructs jury on law.iv. Judges control use juries make of info receive

via Rules 50 (JML) & 59 (New Trial)…C. Rule 50 JML: the Basics

i. Terminology: DV = JMLii. Std: take case / I from jury if “R jury would not

have legally sufficient evidentiary basis to find for P on that issue” (a)(1)

1. Cooper: jury could not rationally have decided that way; party has not met burden of persuasion

iii. Connection to 56(c): “no genuine dispute as to any material fact” 1. JML: comes by definition at trial

a. T: should case go to jury?2. SJ: comes by definition b/f trial

a. T: should case go to trial?b. Kind of drastic, some judges lazy

3. In theory, if grant JML, should have granted SJ! But…a. Evidence changesb. Judges are busyc. Some judges are lazy

iv. Timing: any time b/f case submitted to jury. (a)(2)1. Can renew after trial, but only if made b/f

case submitted to jury. (b)2. Be careful here!

D. Review of Burdens i. Production: Π must produce evidence from

which rational trier of fact could find for Πii. Persuasion: “preponderance of evidence” or

“more likely than not”E. N : See chart!

II. VERDICT NOT SUPPORTED BY EVIDENCE - Reid v. San Pedro RRA. Π sued RR for hitting cow, who got on tract either

through gate (Π’s fault) or broken fence (Δ’s fault); jury found for Π, Δ appealed

B. I : evidence sufficient to support verdict?C. H : NOD. A : failed burden of production, b/c no rational basis

for jury to find in Π’s favor based solely on evidence producedi. Ct demands jury inferences be rational

ii. Open fence & gate, w/ cow mile from fenceE. N : Rule 52 req judge in bench trials to make

findings of fact, & conclusions of law.

III. JUDGES CONTROLLING JURIES, JURIES TRUMPING JUDGESA. Instruction and Comment

i. Sets legal boundaries w/in which jury must decide case

ii. Judges may also comment on the evidenceB. Excluding Improper Influences (see supra)C. Judgment as a Matter of Law

i. During trial, either party may move for DV, iR granted, removes case from jury

ii. After trial, may grant renewed motion for JML (J.N.O.V), which overturns jury verdict1. If granted but reversed on appeal, TJ

merely reinstates verdict; NO new trial iii. Challenge legal sufficiency of evidenceiv. Pennsylvania RR v. Chamberlain

1. Estate of dead RR e’ee sued RR; conflicting testimony;

2. I : evidence of Δ’s N legally sufficient to send case to jury?

3. H : NO4. R: motion for JML based on all evidence,

even disputed evidence in movant’s favora. Mere scintilla of evidence not

sufficient to send case to juryb. Must be subst. evidence on both

sides to create jury Q (conflicting)5. Subst: E of such quality & weight that R

fair minded men exercising impartial jdmt might reach diff conclusions

v. JML: “R jury would not have legally sufficient evidentiary basis to find for P on that issue….”1. JML = SJ2. Reid no irrational jury inferences3. Chamberlain Π has not crossed X

vi. JML after the Jury Verdict 1. JML = J.N.O.V 2. Timing: w/in 28 days of jdmt entry

a. NO extensionb. Must be renewed motion

3. Std: same as b/f the verdict4. Why would judge grant now?

a. Maybe decided his ruling b/f went to jury; if let them hear, then grant, if Π appeals & wins, just reinstate

b. If take away b/f jury hears, must have new trial!

IV. NEW TRIAL A. 59 - New Trials; Altering or Amending a Jdmt

i. Timing: w/in 28 days of entry of judgmentii. Std: “any reason for which new trial has h/t/f

been granted….”1. Flawed Procedures (“do over”)

a. Judge gives wrong instructionb. “” allows impermissible closingc. “” erroneously admits or excludes

evidenced. Juror misbehaved during trial

2. Flawed Verdict a. Illogical verdictb. Quotient verdictc. “Soft form” of JML

i) “a/g great weight of evidence”ii) Contrast JML: “no legally

sufficient evidentiary basis”iii. SoR: abuse of discretion

B. JML v. New Trial i. JML

1. Focus: adequacy of evidence (process ok)2. Replaces jury verdict w/ judge’s jdmt3. Result: final jdmt (t/f immediately

appealable)4. Party must make motion

ii. New Trial1. Focus: evidentiary adequacy OR process2. Sends case to new trial3. Result: NOT final if granted (un-

appealable, unless part of j.n.o.v order)4. Can be sua sponte

C. Lind v. Schenley Industries

i. Π sued for failing to pay 1% bonus; Δ’s motion for j.n.o.v & new trial granted

ii. I : granting new trial abuse of discretion?iii. H : YES. iv. A : subject matter simple / easily understood

1. Credibility issue critical; Π’s case overwhelming if credible

2. Cooper: TJ NOT 13th juror, but to avoid “miscarriage of justice”

3. Is testimony “too incredible to believe?”D. Conditional New Trials

i. New trials may be limited to damages, or court may simply…1. amt of damages awarded (remitter); OR2. “” (additur)

XVIV. RESPECT FOR JDMTS

I. THE BASICS A. Claim Preclusion (aka res judicata)

i. Basic Scenario1. Π v. Δ for N; Δ wins. Can Π sue Δ again

for N from same accident? NO.2. Why? Finality

ii. Source of Law? CLiii. Elements

1. Final judgment2. “On the merits.”3. Same claims4. Same Ps5. N : Deceptively simple

iv. I : How far afield does doctrine go from basic scenario?

v. GR : Valid final jdmt on merits is absolute bar to later action b/t same Ps or privies on same claim or demand

B. Issue Preclusion (aka collateral estoppel)i. Basic Scenario

1. Π v. Δ re: 1st accident; Ps have 2nd accident 2. Can Ps avoid relitigation of any Is? YES.

ii. Trigger: later suit involving diff claim raising Is litigated in prior suit

iii. GR: bar relitigation of legal/factual Is in 2nd suit where Is were fully litigated in 1st

iv. N: unlike CP, applies a/g new parties

II. CLAIM PRECLUSIONA. Identity of Claims “Same Claims”

i. Two Tests:1. Transactional (maj): all claims arising out

of same T/O precluded from relitigation2. Same Evidence (IL?/min): “same COA,”

i.e. “evidence necessary to sustain 2nd verdict would sustain 1st”i) Ex: DP in 1st, tort in 2nd; o.k.

ii. Frier v. City of Vandalia - Efficiency1. Suit 1 = replevin; suit 2 = § 1983 DP; TC

dismissed, b/c prior notice & full hearing2. I : same claims?3. H : YES. 4. R : same evidence test (common core of

operative facts)

5. A : Π attacked same primary right / conduct6. S : “Same claim” includes any that could

have been raised in 1st suitiii. PP :

1. Efficiency (cts & Ps): want all related claims tried together

2. Peace of mind / closure for Δs3. On 1st shot, Πs have liberal pleading, &

broad joinder / discoveryiv. Practical Effects on Πs

1. Brain storm at outset, & include all claims may possible have (I: marginal relevance)

2. N: still ltd by Twombly & Iqbal v. Compulsory Counter Claims

1. 13(a): MUST bring if “arise out of same T/O”

2. Compulsory Claims? 18 says “may,” but CL says “must,” e.g. use-it-or-lose-it

vi. Same t/o for CP (maj) = same t/o for supp j(x). vii. See Frier Variations

1. Restatement: did P have choice of where to bring original action (e.g. expedited suit)?i) Fair opp to litigate claim?

2. If sue gov’t in 1st, then officer in “indiv capacity” in 2nd, NO prob w/ same Ps

B. Consistency: Logical Implications of Former Jdmt i. Scenario: 2nd suit involves compulsory

counterclaim not asserted in prior action1. 13(a) bars only when Δ plead under 7(a)2. What happens when Δs enters no pleading?

ii. Martino v. McDonald’s System, Inc.1. 1st = breach of K, settled w/out Δ pleading;

2nd = Δ alleges K violated antitrust laws2. I : 13(a) or res judicata bar 2nd suit?3. H : NO to 13(a), YES to res judicata4. A : see above for 13(a)

i) COA comprises defenses; if not given in 1st, lost; h/w, diff claim here, so res judicata N/A

ii) BUT, PP: 2nd suit would nullify rights est in 1st (jdmt integrity, reliance)

C. B/t “Same” Ps i. GR: sep indiv have sep claims, even if arising

from same T/O; but… exception w/ privity…ii. Privity: person so ID-ed w/ another that he reps

same legal right (virtual representation)1. Int adequately represented in 1st action?2. Should notice / K be imputed on them?

iii. N: see privity examples iv. Searle Brothers v. Searle

1. Divorce award prop to W; H’s sons sued, as LLP owned ½ int

2. I : sons in privity w/ H?3. H : NO4. R : agents & principals have no mutual or

successive relationship to rights in prop5. A : Πs assert own indep & sep LLP int

i) Int arose b/f 1st action, & Πs could not join in divorce

ii) Efficient packaging of claims6. Dissent : Πs testified in 1st , t/f had notice

v. Opp Hypothesis & a Corollary

D. After a Judgment on the Merits i. Justification:

1. Ct considered / decided merits already2. P misbehaved & ct dismissed to sanction P

ii. Jdmt on Merits?1. Trial & jdmt? YES2. DV? YES, b/c evaluated merits3. SJ? YES, b/c same std as DV.

i) Fair? Π can appeal, but no trial. ii) H/w, if claim was viable, would have.

4. Dismissal after 12(b)(6) motion? YES i) Π master of claim, and likely had opp

to amend.5. Dismissal for FtP under Rule 41?

i) Here, ct hasn’t dealt w/ the merits, but 41(b) says dismissal on merits.

ii) W/ all of these, don’t fell bad for Π, b/c have tons of weapons in FRCP!!!

iii) Fair opportunity principal6. Dismissal on 12(b)(1) or (2) motion?7. Dismissal for discovery violation? YES. 8. N: why exceptions at end of 41(b)? Π

hasn’t had opp to develop suitiii. Gargallo v. Merrill Lynch

1. R : final jdmt on merits not valid for lack of SMJ over claim has no preclusive effect on that claim

iv. How to “Tee Up” Defense1. 8(c): affirmative defenses in A2. MSJ: not motion on pleadings, e.g. no

dispute as to material facts for CP elementsi) Attach exhibits to brief (complaint &

court order / jdmt)

III. ISSUE PRECLUSIONA. IP v. CP

i. CP: all Ps arguments advanced in 1st action barred in 2nd; h/w, scope only same claim

ii. IP: bars only facts actually litigated & determined; h/w, scope extended to all later claims b/t Ps (recently, even nonmutual)1. Scalpel: carving legal/factual conclusions

into pieces; piece from 1st barred from 2nd

B. R. 27 of Jdmtsi. When…

1. An issue of fact or law (definition/setting)2. Is actually litigated & determined by3. A valid and final jdmt; AND4. The determination is essential to the jdmt

ii. Determination conclusive in later action b/t Ps, whether on same or diff claim

iii. N : Case law adds “adequate opp & incentive”C. Same Issue Req (Threshold)

i. N: b/c civil & criminal cases have diff BoP, determination in 1st NOT barred from 2nd case

ii. Proposition: an “issue” consists of the…1. Legal & factual proposition (e.g., N,

breach, theft, etc.);2. Same term (e.g., “citizenship” can differ

according to context);3. Procedural setting in which proposition is

decided (e.g. BoP)

D. Issue “Actually Litigated & Determined” i. Diff than CP, where if could have been brought

but was not, barred; not the case hereii. IL Central Gulf RR v. Parks

1. H & W’s car hit by train; W sues for injury, wins; H for L of consortium, loses; 2nd, H sues for injuries

2. Same COA test (narrow preclusive effect, e.g. allows “2nd bite at apple”)

3. Can’t tell what general verdict a/g Δ was based on, i.e. no damages or contrib. N

4. BP: skepticism toward IP, e.g. hard to say something in 1st est. as gospel truth

iii. W/ 2nd suit b/t same Ps, argue CP 1st, b/c will kill entire suit

iv. N: if P fails to raise affirmative defense (contrib. N), can NOT argue CP1. But see In re Sammy Daily

E. An Issue “Essential to the Jdmt” i. Prob: jdmt on multiple / alternative grounds

1. R. 1st: ALL precluded (efficiency, finality, consistency)

2. R. 2nd: NONE precluded (worried a/b P’s incentive / motivation to fight)

ii. Appellate Affirmance = Confidence1. IP o.k., so long as have briefing & AC

review on both groundsF. B/T Which Ps?

i. Parklane Hoisery v. Shore - Offensive NM IP1. 1st: SEC v. Δ, won DJ; 2nd: Π v. Δ, almost

same allegations; Π wanted IP2. R: TCs have broad discretion, h/w should

not allow where…a. Π could easily have joined 1st suit; b. Allowing would be unfair to Δ

3. A: Π needed consent to join; Δ not prejudiced, b/c had incentive to fully / vigorously litigate in 1st

4. PP: consistency; Δs afforded DPii. Opp Principle: adequate opp / incentive to

litigate issue?1. YES preclusion approp2. No preclusion NOT approp

iii. N: See exceptions in Notes 2 & 3 (p. 708) & R. § 29 (p. 714).

iv. SF v. CH Comp. - NM IP & Mixed Results1. Mass tort litigation from fire at Δ’s prop;

Π asserts IP, where won / lost some2. R: nonmutual IP N/A where unfair to Δ;

denies benefit of victory, while penalizing w/ burden of prior L (patently unfair)

3. Cooper: won’t disregard incongruous results were looking us in the eye

4. Does not mean multi-P cases last forever, b/c eventually, Ps will settlea. Also, ct can consolidate cases, or

have test case

PRELIMINARY INJUNCTIONS & TROS

I. ELEMENTSA. Substantial LH of success on merits

B. Irreparable injuryC. Balancing the equitiesD. Public interest

II. PROCESSA. First, must file lawsuitB. Next, make motion for prelim injunction showing

satisfy elementsC. Have mini-hearing, bring witnesses