Civ Pro-Autumn 2002Outline

I. An Introduction to ProcedureA. How a case proceeds from grievance through trial and appeal.B. Civil Procedure relies upon two bases:

1. Codified law (Federal Rules of Civil Procedure)2. Case law interpreting the FRCP

C. All procedural rules must comport with Due Process requirements.1. Greene v. Lindsey: Posting is insufficient notice. 2. Factors in determining “reasonableness” of procedures:

a. Stakesb. Costsc. Reliability

D. Rule 4: Summons 4(a): Form.

Summons shall:o Be signed by the clerk;o Bear the seal of the court;o Identify the court and the parties;o Be directed to D;o State the name and address of P’s attorney or of unrepresented P;o State the time within which D must appear; ando Notify D of consequences of failure to appear.

4(b): Issuance. If the summons presented by P is in proper form, clerk shall (after its filing with the court) sign, seal, and issue it to P for service on D.

4(c): Service with Complaint: by Whom Made. o (1): A summons shall be served together with a copy of the complaint.

P is responsible for this.o (2): Service may be effected by any nonparty who is 18 years old. At

P’s request service may be effected by a U.S. marshal, deputy U.S. marshal, or other court-appointed person.

4(d): Waiver of Service; Duty to Save Costs of Service; Request to Waive.o (1) D who waives service doesn’t automatically waive objections.o (2) D has a duty to avoid unnecessary service costs. Notice and request

shall: (A) be written and addressed to D or an officer of D. (B) be sent by first-class mail or “other reliable means” (C) be accompanied by copy of complaint and identify court (D) inform D of consequences of failure to comply (E) give the date of the request (F) give D a reasonable time to return the waiver:

at least 30 days from date of request, or at least 60 days from date of request if D is outside U.S.

(G) include extra copy of notice and request and SASEIf D doesn’t waive and doesn’t show good cause, D pays costs.

o (3) D who waives service doesn’t have to answer complaint until: 60 days after date of request, or 90 days after date of request if D is outside U.S.

o (4) Waiver is treated as proof of service.o (5) Costs imposed on D who fails to waive shall include:

costs of effecting service, and costs of any motion necessary to recover service costs.

4(e): Service Upon Individuals Within a Judicial District of the U.S.o (1) Service shall occur pursuant to the laws of the state:

in which the District Court is located; or in which service is effected.

o (2) Process shall be served by: delivering a copy of summons and complaint to D personally; leaving copies of summons and complaint at D’s home with

someone “of suitable age and discretion residing therein”; or delivering copies to an authorized agent of D.

4(f): Service Upon Individuals in a Foreign Country.Service may be effected:o (1) by any internationally agreed means.o (2) if there is no internationally agreed means:

(A) in the manner prescribed by the law of the foreign country; (B) as directed by the foreign authority; (C) unless prohibited by the law of the foreign country:

(i) personal service; or (ii) by any form of mail requiring a signed receipt.

o (3) or by other means not prohibited by international agreement. 4(g): Service Upon Infants and Incompetent Persons.

o Service shall comport with law of state in which service is made.o If outside U.S., service under 4(f)(2)(A) or (B) or court order.

4(l): Proof of Service.Person effecting service (unless waived) shall make proof to the court:

o through affidavit, if not a U.S. marshal or deputy U.S. marshal;o pursuant to treaty or convention if served thereunder outside U.S.;o if outside U.S. and not under treaty or convention, by receipt.

Failure to prove service doesn’t invalidate service. Proof may be amended. 4(m): Time Limit for Service.

o Service must be made within 120 days after filing of complaint.o Later service results in dismissal without prejudice (P may refile).o P may avoid dismissal by showing good cause for delayed service.

II. PleadingA. Common Law vs. Chancery

1. Common Law

a. Narrowed claims during pleading; P and D had to agree on basis of conflict.

b. Types of disputes:i. Demurrer: “So what?”—12(b)(6)ii. Traverse: “Not true.”iii. Plea of Confession and Avoidance: “Yes, but..”

c. No separate discovery.2. Chancery: parties weren’t required to detail facts up front.3. Why do we care about these historical differences?

a. To see how procedural evolution affected substantive law.b. To see why and how the two systems were combined.

B. Development of Modern Pleading1. Code Pleading

a. Codes enacted by state legislaturesb. Gillispie (vague trespassing): two purposes of specificity

i. Court can assess validity of claim;ii. D has a chance to respond.

c. This stage weeds out poor claims d. New rule: “short and plain” statement of claim.e. Differences between FRCP and Code Pleading:

i. FRCP pleading requires only a statement of claim.ii. Level of specificity required by FRCP:

a. Rannels ($8 jeans): factual elements to fulfill each substantive requirement.

b. Haddle (Feds after company): regardless of facts, claim inadequate under law.

C. Rule 8: General Rules of Pleading 8(a): Claims for Relief. A claim shall contain:

o (1) a short and plain statement of grounds for jurisdiction.o (2) a short and plain statement of the claim for relief.

Heightened pleading standard may be required under, e.g., Civil Rights Act in cases of fraud and mistake. (Leatherman: cops smelled pot—abuse “under color of law”)

Courts haven’t spelled out how Leatherman heightened pleading squares with Gomez assignment of burden of proof to D in qualified immunity cases.

8(b): Defenses: Form of Denials. A party shall:o state defenses to each claim in short and plain terms.o admit or deny the averment upon which opponent relies.o state any lack of knowledge or belief as to the truth of an averment

(this has the effect of a denial).o deny only the part of the averment actually contested (specify how

much is true). Zielinski (forklift): failure to specify true averments can result in

the court’s ordering false averments to be treated as true. 15(c)(3) would have allowed amendment of pleading.

o make a general denial when contesting all parts of an averment. 8(c): Affirmative Defenses. In pleading to a preceding pleading.

o Gomez (cop testified against others): good faith is an AD in qualified immunity cases (civil rights).

o Layman (phone lines): AD excluded because not stated in answer. Case remanded; new trial could include AD.

8(d): Effect of Failure to Deny. Averments are admitted when not denied. 8(e): Pleading to be Concise and Direct; Consistency.

o (1) Each averment shall be simple, concise, and direct.o (2) A party may set forth all possible claims in the alternative.

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

D. Rule 11: Signing of Pleadings, Motions, and Other Papers; Representations to Court; Sanctions: Applies to all written documents except those turned over in discovery.

11(a): Signature. Every filing shall be signed by at least one attorney or by an unrepresented party and list the signer’s address and phone number.

11(b): Representations to Court. Submission of a document to the court implies that the signing party knows or believes that:o (1) the filing has no improper purpose (harassment, delay, cost).o (2) the legal contentions therein are warranted by existing law or by a

serious argument for the modification of existing law. Religious Technology Ctr. (RICO)—not warranted by law. Limits sanctions to attorneys (signers) only.

o (3) the contentions have or are likely to have evidentiary support. Business Guides (“seeds” case): lawyers sanctioned.

o (4) denials of fact are warranted by evidence or are reasonably based on a lack of information or belief.

11(c): Sanctions. If subdivision (b) is violated, the court may sanction the parties, attorneys, or law firms responsible. Court is not required to impose monetary or even any sanctions.o (1) How Initiated.

(A) By Motion. This motion shall be separate from other motions and shall describe the specific conduct alleged to have violated 11(b). The motion can be amended or withdrawn until 21 days after service (or within whatever time the court prescribes) and can only be filed thereafter. If motion succeeds, court may award expenses including fees. A law firm shall be held jointly responsible with its employees.

(B) On Court’s Initiative. Court may move on its own. o (2) Nature of Sanction: Limitations. Sanction shall be limited to what

will deter repetition. May be nonmonetary or paid to the court or to movant. (A) Monetary sanctions can’t be awarded under 11(b)(2).

(B) Monetary sanctions can’t be awarded on the court’s initiative unless the court issues order to show cause before voluntary dismissal or settlement.

o (3) Order. When imposing sanctions, the court shall describe the conduct deemed a violation and explain the basis for the sanction.

11(d): Inapplicability to Discovery. Rule 11 does not apply to disclosures and discovery requests, responses, objections, and motions.

E. Rule 12: Defenses and Objections 12(a): When Presented.

o (1) D shall serve an answer: (A) Within 20 days after service of complaint; or (B) If service waived:

within 60 days after waiver request; or within 90 days after waiver request if D outside U.S.

o (2) Party served with a cross-claim shall serve an answer within 20 days after service of the cross-claim.

o (3) Cases to which the United States is a party: (A) If U.S. is the party served with the cross-claim, it shall answer

within 20 days after U.S. Attorney is served. (B) An officer or employee of U.S. shall answer within 60 days

after he or U.S. attorney was served, whichever is later.o (4) Service of a Rule 12 motion alters time periods as follows:

(A) If motion denied or postponed, answer must be filed within 10 days after court’s ruling on the motion.

(B) If motion (for more definite statement) granted, answer must be filed within 10 days after service of more definite statement.

12(b): How Presented. The following defenses may be made by motion rather than in a responsive pleading:o (1) Lack of subject matter jurisdiction;o (2) Lack of personal jurisdiction;o (3) Improper venue;o (4) Insufficiency of process;o (5) Insufficiency of service of process;o (6) Failure to state a claim upon which relief can be granted; oro (7) Failure to join a party under Rule 19.A motion under this rule must be made before pleading. If no pleading is required, these defenses may be brought forth at trial.

12(c): Motion for Judgment on the Pleadings. After the pleadings are closed, any party can so move. If matters outside the pleadings are presented and not excluded, the motion is for summary judgment.

12(d): Preliminary Hearings. 12(b) and 12(c) motions shall be heard and decided before trial except where court orders otherwise.

12(e): Motion for More Definite Statement. May be made before responsive pleading is filed. Motion must point out defects and details desired. If opponent fails to serve a more definite statement within 10 days of the granting of this motion, the pleading may be stricken.

12(f): Motion to Strike. Must be made before responsive pleading or, if none is required, within 20 days after service. May move to strike “any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.”

12(g): Consolidation of Defenses in Motion. Except as otherwise provided in 12(h), all available defenses under Rule 12 must be consolidated into one motion or lost.

12(h): Waiver or Preservation of Certain Defenses. o (1) Lack of personal jurisdiction, improper venue, and insufficiency of

process or of service of process are waived: (A) if omitted from a 12(g) motion; or (B) if it is not included in a Rule 12 motion nor in a responsive

pleading or an amendment to a responsive pleading.o (2) Failure to state a claim on which relief can be granted, failure to

join an indispensable party, and an objection of failure to state a legal defense to a claim may be made at any time.

o (3) Lack of subject matter jurisdiction may be raised at any time, by the parties or the court, and if proven results in dismissal.

F. Rule 15: Amended and Supplemental Pleadings. 15(a): Amendments.

o A party may amend once before responsive pleading is served.o If no responsive pleading permitted and trial hasn’t been scheduled,

party may amend within 20 days after service.o Otherwise, party may amend by leave of court or written consent of

opponent; leave shall be given when justice so requires.o A party shall respond to an amended pleading within response time to

original pleading or 10 days, whichever is longer, or as court orders. 15(b): Amendments to Conform to the Evidence.

o Amendments may be necessary to conform pleadings to evidence or to issues raised and consented to implicitly or explicitly.

o These amendments may be made by motion of any party at any time, even after judgment.

o Failure to amend doesn’t affect result of trial of these issues.o If evidence objected to because not in pleadings, pleadings may be

amended to include such evidence (court shall do so freely in absence of evidence of unjust intent [undue prejudice, bad faith, dilatory motives, undue delay, futility]—Layman).

15(c): Relation Back of Amendments. An amendment dates back to the date of the original pleading when:o (1) dating back is permitted by law of SOL, oro (2) amended pleading arises out of same events as original (Moore:

surgery consent [no]; Bonerb: basketball [yes]), oro (3) amendment changes the opposing party if 15(c)(2) is satisfied and

(A) the new party has sufficient notice of the action, and

(B) the new party knew or should have known that it was the correct party.

Aquaslide : Amendment permitted because Plaintiff didn’t meet its burden of proof that leave to amend would unduly prejudice Plaintiff’s case. Amendment dated back to date of original pleading under 15(c)(2) because it arose out of same circumstances and events as original.

Relation back is OK if it fits underlying purpose of SOL (notice). Although Plaintiff argued that Defendant’s amendment was the

“death knell” for Plaintiff’s claim, 15(c)(3)(B) provides for Plaintiff to amend to include a new Defendant even after the statute of limitations has run if that new Defendant knew or should have known it was the right Defendant.

o If the U.S. is a defendant, mailing or delivery of process to U.S. Attorney or designee or Attorney General is sufficient.

15(d): Supplemental Pleadings. o Upon motion of a party the court may permit the party to serve a

supplemental pleading detailing events since original pleading was filed.

o Permission may be given even if original pleading was defective in statement of a claim for relief or defense.

o Court may order response to supplemental pleading and shall set time therefor.

III. DiscoveryA. Rule 26: General Provisions Governing Discovery; Duty of Disclosure

26(a): Required Disclosures; Methods to Discover Additional Mattero (1) Initial Disclosures. Parties must, without request, disclose:

(A) The name and, if known, address and phone # of each person likely to have discoverable information.

(B) Copies or descriptions and locations of all documents and objects in the control of the party and likely to be useful to opponents.

(C) Computation of all damages claimed and documents from which those computations are made.

(D) Insurance agreements indicating insurers’ liability. (E) The following proceedings are exempt from 26(a)(1):

(i) Action for review of administrative record. (ii) Petition for habeas corpus or other proceeding to

challenge a criminal conviction or sentence. (iii) Action brought without counsel by a prisoner. (iv) Action to enforce or quash a summons or subpoena. (v) An action by U.S. to recover benefit payments. (vi) An action by U.S. to collect on a guaranteed student

loan. (vii) A proceeding ancillary to proceedings in other courts. (viii) An action to enforce an arbitration award.

Disclosures under 26(a)(1) must be made within 14 days after the 26(f) conference or within a time set by the court.

If a party objects to initial disclosures in its 26(f) discovery plan, court must rule.

Any party served or joined after conference must disclose within 30 days after being served or joined or within time set by court.

Initial disclosures must accord with information then available.o (2) Disclosure of Expert Testimony.

(A) Parties must disclose experts who may appear at trial. (B) Disclosure must be accompanied by copy of expert’s report. (C) Disclosures made at time and in sequence set by court. Default

is 90 days before trial. If rebuttal evidence, 30 days after disclosure of evidence to be rebutted.

o (3) Pretrial Disclosures. A party must provide and file with the court at least 30 days before trial (or at a time set by the court): (A) Name and phone # of each witness. (B) Designation and description of depositions to be introduced. (C) Identification of documents and other exhibits to be used.Parties then have 14 days to object to exhibits and depositions.

o (4) Form of Disclosures. All must be written, signed, and served.o (5) Methods to Discover Additional Matter. Available methods:

Depositions (Rules 30, 31, 32) Usually available to the public. Deponents’ identities can be screened by court. Court can restrict publication. Centrality issue: does P have other options for evidence? Importance: how significant is the overall case?

Written interrogatories (Rule 33) Document and object production (parties only) (Rule 34) Permission to enter upon land for inspection, etc.(Rule 34) Mental and physical examinations (Rule 25) Requests for Admission (Rule 36) (more like pleading)

Admissions aren’t and don’t need to be evidence. Can be withdrawn in rare, exceptional circumstances. Court can limit these requests.

26(b): Discovery Scope and Limits.o (1) In General.

Any matter not privileged and relevant to any party’s claim or defense is discoverable.

Information need not be admissible if likely to lead to ev that is. General standard: relevance without privilege.

o (2) Limitations. Court may limit by order. Limits shall be ordered if: (i) Discovery sought is unreasonably cumulative or duplicative or

obtainable otherwise more easily, inexpensively, etc. (ii) Party seeking discovery has had ample opportunity already. (iii) Burden or expense outweighs likely benefit.

Court may act upon its own initiative in limiting discovery.o (3) Trial Preparation: Materials. Work product discoverable only:

Upon showing of substantial need, and Upon showing that other means involve undue hardship. Mental impressions, conclusions, etc., not discoverable (Hickman:

boat crash—inspired 26(b)(3)). A nonparty may always obtain copies of her own statements. If

court order is necessary to obtain these, expenses may be awarded. Factual information is discoverable from attorneys—not protected

by work product exception. Thompson (see below): falls under (b)(3) because it involves

documents. Decision tree for documents:

Is it otherwise discoverable (relevant and not privileged)? If no, not discoverable. If yes, proceed to #2.

Was it prepared in anticipation of litigation? If yes, not discoverable. If no, proceed to #3.

Is there a showing of substantial need or undue hardship? If no, not discoverable. If yes, proceed to #4.

Does it incorporate mental impressions, conclusions, legal theories, or opinions of the preparing attorney?

If yes, not discoverable (redacted). If no, discoverable.

o (4) Trial Preparation: Experts. (A) Testifying experts are deposable. (B) Nontestifying experts are deposable only after a showing of

exceptional circumstances (work product). (C) Unless manifest injustice would result,

(i) The discovering party must pay expert a fee for time spent responding to discovery.

(ii) The discovering party must pay opponent part of the fee for nontestifying experts deposed.

Only experts retained in anticipation of litigation are deposable. Thompson (sexual harassment—psychologist’s report): compelling

need and impossibility of otherwise obtaining evidence were proven. Only obtainable because P went in anticipation of litigation.

Chiquita : D had opportunity to retain its own expert, so only thing discoverable was factual information held by P’s expert.

o (5) Claims of Privilege or Protection of Trial Prep Materials. Parties claiming privilege must explicitly state such claims and describe the nature of undisclosed documents, etc. so other parties can assess claim.

26(c): Protective Orders. Upon motion and upon certification that a party has made an effort to confer with opponent, court may issue protective order against annoyance, embarrassment, oppression, or undue burden and expense:o (1) That disclosure or discovery not be had.o (2) Limiting conditions, times and places of disclosure/discovery.o (3) Specifying a different method of discovery.o (4) Limiting scope of discovery and making certain topics off-limits.o (5) That only court-designated people be present at discovery.o (6) That deposition be sealed and opened only by court order.o (7) That trade secrets, etc., be revealed only in designated ways.o (8) That parties simultaneously file documents openable only by court

order.If motion for protective order is denied, court may order discovery. Expenses may be awarded.

26(g): Signing of Disclosures, Discovery Requests, Responses, and Objections. o (1) All disclosures must be signed by an attorney or unrepresented

party, with signing party’s address. Signature is certification that disclosure is correct to the best of the signer’s knowledge and belief.

o (2) Discovery requests, responses, and objections must be similarly signed. Signature certifies that the request or whatever is: (A) Consistent with FRCP and warranted by law or good faith

argument for modification of law. (B) Not for any improper purpose (harassment, delay, cost). (C) Not unreasonable or unduly burdensome or expensive.

Unsigned documents under this rule shall be stricken unless promptly corrected.o (3) Certifications in violation of the rule must result in sanctions.

B. Rule 37: Failure to Make Disclosure or Cooperate in Discovery; Sanctions 37(a): Motion for Order Compelling Disclosure or Discovery.

o (1) Appropriate Court. Application must be made to court in which the action is pending. Application for an order to a nonparty must be made to the court

in the district where discovery is to be taken.o (2) Motion.

(A) If a party fails to make disclosure required by 26(a), another party can move for order to compel and for sanctions.

o Motion must include certification that movant has made good faith effort to confer.

(B) If a deponent fails to answer a question or interrogatory, deposing party may move to compel with certification.

o (3) Evasive or Incomplete Disclosure, Answer, or Response. Treated as failure to disclose, answer, or respond.

o (4) Expenses and Sanctions.

(A) If motion to compel is granted or requested disclosure provided after motion, movee must pay expenses except in absence of good faith or where movee has substantial justification.

(B) If motion is denied, court may grant protective order under 26(c) and require movant to pay expenses absent substantial justification.

(C) If motion is granted in part and denied in part, court may enter protective order and may apportion expenses.

37(b): Failure to Comply With Order.o (1) Sanctions by Court in District Where Deposition is Taken.

Deponent’s failure to be sworn or to answer may be contempt.o (2) Sanctions by Court in Which Action is Pending. Court may order:

(A) That facts related to the order be regarded as established. (B) Disallowing certain claims or defenses or introduction of

certain evidence by party in noncompliance. (C) Pleadings or parts thereof stricken, proceedings stayed or

dismissed, or judgment by default.o Chudasama v. Mazda : Court abused discretion by using

harshest sanction, so not completely discretionary. (D) Failure treated as contempt (except for mental or physical

examinations). (E) In cases where party has not been submitted for examination,

orders described in paragraphs (A), (B), and (C).In lieu of any of these orders, court may impose expenses.

37(c): Failure to Disclose; False or Misleading Disclosure; Refusal to Admit.o (1) A party who refuses without substantial justification to disclose

requested material may not use that material at trial. Court may impose sanctions: expenses or others under 37(b)(2)

(A), (B), and (C). Court may inform jury of failure to disclose.

o (2) If party fails to admit genuineness or truth which is later proven, court may impose expenses unless request was objectionable, unimportant, or party failing to admit had reasonable ground.

37(d): Failure of Party to Attend at Own Deposition or Serve Answers to Interrogatories or Respond to Request for Inspection. If a party fails:o (1) To appear for deposition after being served with proper notice; oro (2) To serve answers or objections to proper interrogatories; oro (3) To give written response to proper request for inspection,Court may order just remedies, including any under 37(b)(2)(A), (B), or (C) or award of expenses.

Movant must certify a good faith effort to confer. Failure isn’t justified on grounds that discovery sought is

objectionable unless party failing to act has moved for a protective order.

37(g): Failure to Participate in the Framing of a Discovery Plan. Court may award expenses.

IV. Disposition Outside of TrialA. Settlement

1. Forms of Settlement:a. Agreement to withdraw complaints.b. Requests for dismissal with or without prejudice.c. Consent decree (harshest to Defendant), in which the court

orders and enforces an agreement.d. Judgment against Plaintiff.

2. Courts Address the merits of settlement agreements in only two kinds of cases:a. Class action suits.b. Suits involving minors.

3. Contract rules govern settlements.4. Parties can’t limit the power of courts through settlement terms.

a. Kalinauskas (sexual discrimination—witness): Confidentiality provision doesn’t prevent courts from hearing testimony relevant to other cases.i. Public interest in full disclosure and in functioning

of courts.ii. This must be balanced against the public interest in

settlements.iii. Details of the agreement itself are protected.

5. Settlement often begins and sometimes ends during discovery.a. Discovery encourages settlement by bringing parties

together and educating them about each other’s and their own cases.

b. Settlements are attractive to parties desiring confidentiality, because court documents are open to the public.

6. Although there are arguments for and against confidentiality agreements, some would be acceptable even given public interest in most disclosures. Confidentiality agreements would be acceptable in:a. Cases involving purely private matters, such as

divorce.b. Cases involving compelling private rights, such as

those to proprietary information.7. It is the responsibility of individual litigants to decide whether or not settlement is appropriate; this is the difference between the civil and criminal systems.

a. However, the court can use its “veto power” in order to protect the public interest.

8. Post-judgment settlements are allowed in some kinds of cases only.a. Neary (cow libel): Presumption that parties can stipulate for

reversal of judgment absent exceptional circumstances.

i. This case was an application of settled law to facts.b. Bonner Mall (new value exception): Judgment shouldn’t be

vacated just because of settlement; vacatur requires a showing of public interest. This is the more valuable precedent (Supreme Court wanted to decide it but settlement pre-empted that). i. This was an interpretive case.

c. The current state of the law appears pretty liberal on this point; it appears to rest upon a combination of the parties’ agreement and the settled state of the law at issue.

9. Fee-shifting in settlement:a. Our system doesn’t generally permit fee-shifting. b. Exceptions to this rule:

i. Mandatory awards of motion costs, etc.—very limited and generally restricted to rules violations.

ii. Mandatory fee- and cost-shifting when Plaintiff has declined a settlement offer and ultimate award is not greater.

iii. Some provisions for fee-shifting to Defendant when Plaintiff wins.

iv. Rule 68: Offer of Judgment. Settlement offeror’s costs begin accruing to

offeree at time offeree rejects offer. Offeree is obligated to pay costs only when

judgment/award is not more favorable than offer.

c. Evans (class action by kids): Fee-shifting statutes only permit Plaintiffs to collect attorney’s fees; they are not required to do so. I.e., fee waivers are permitted.i. Fee waivers are an important bargaining chip.ii. Alternative argument: judgment granting waivers is

an abuse of the court’s discretion, because the waiver was coerced and may have produced an unfair result.

iii. Rejoinder: Court review is intended to protect Plaintiffs, not their lawyers, so waivers are OK.

B. Preliminary Relief1. Sequence of events (optional actions in parentheses):

Filing of complaint (Preliminary injunction) Answer Discovery

o (Settlement can occur at any point) (Summary judgment) Trial

2. Rule 65: Injunctions.

65(a): Preliminary Injunction.o (1) Notice. No preliminary injunction shall be issued

without notice to the adverse party.o (2) Consolidation of Hearing With Trial on Merits.

Can be ordered by the court before or after commencement of the hearing.

Whether or not actions are consolidated, any admissible evidence introduced at the hearing doesn’t have to be reintroduced at trial.

This section shall be so construed as to reserve all parties’ rights to trial by jury.

65(b): Temporary Restraining Order; Notice; Hearing; Duration. A TRO may be granted without notice to the adverse party or her attorney only if:

o (1) It clearly appears that applicant will suffer irreparable harm before the adverse party can be heard; and

o (2) Applicant’s attorney certifies to the court in writing any efforts she has made to notify the adverse party and states reasons why notice should not be required. TRO shall:

Bear date and hour of issuance. Be filed “forthwith” in clerk’s office. Define the irreparable injury and state reasons. Expire within 10 days unless extended.

Reasons for any extension shall be recorded. Hearing on motion for preliminary injunction shall

be set for earliest possible time and takes precedence over all other matters except another such hearing set on an earlier date.

At the hearing, applicant shall move for a preliminary injunction or the TRO will be lifted.

Adverse party may appear and move for dissolution with two days’ notice to applicant.

65(c): Security. No RO or PI shall be issued except with security paid by applicant. No security is required of the United States.

o Attachment, garnishment, replevin, and subverting the flow of 3rd party money to Defendant are ways to preserve potential reparations until merits can be decided.

o Don’t forget it’s necessary to square procedure with due process.

65(d): Form and Scope of Injunction or Restraining Order. Every order granting injunction and every RO shall:

o Set forth the reasons for issuance.o Be specific in terms.o Describe in reasonable detail the act(s) sought to be

restrained.

o Be binding only upon the parties and their associated actors who receive actual notice of the order.

65(e): Employer and Employee; Interpleader; Constitutional Cases. The FRCP don’t modify any U.S. statutes relating to the aforementioned types of cases.

65(f): Copyright Impoundment. This rule applies to copyright impoundment proceedings.

3. Inglis (price fixing): Factors to be considered in determining whether Plaintiff should be granted injunctive relief:a. Likelihood of irreparable harm.b. Probability that Plaintiff will prevail on the merits.

Alternative test cited by appellate court: disproportionate harm to Plaintiff.

c. Balance of harms to parties.d. Public interests.Court here says that its standard of review is abuse of discretion (very deferential). However, the articulation of the law is a subject, says the court, of de novo review.

4. Summary of Preliminary Relief:a. Parties can ask court for immediate protection from

irreparable harm.b. Court doesn’t have full information (or why not just try the

case?).c. Court must protect both parties’ interests.d. Often these decisions lead to settlement or change parties’

positions, affecting outcome of trial.5. Fuentes (repossession of stove): requirement of due process in

implementation of preliminary relief (notice, opportunity for hearing, etc.).a. What are the appropriate procedures before someone can be

deprived of property?i. Reliability concerns here—should private parties be

able to invoke state action without hearing or proof?ii. Distinguished from Greene: here Plaintiff argues

that hearing is unnecessary.C. Summary Judgment

1. Difference between motion to dismiss and summary judgmenta. Motion to dismiss assumes Plaintiff’s allegations are true

(12(b)(6)), while motion for summary judgment allows judge to consider evidence as well as law.

2. Who prevails on motion for summary judgment?a. Defendant can prevail by showing one inadequate

necessary element of Plaintiff’s claim.b. Plaintiff can prevail by showing unanswered evidence for

each element of claim.c. Plaintiff can defeat Defendant’s motion by showing some

evidence for each element of claim.3. Rule 56: Summary Judgment

56(a): For Claimant. Can be filed at any time after 20 days have elapsed from commencement of action.

56(b): For Defending Party. Can be filed at any time. 56(c): Motion and Proceedings Thereon. Motion shall be

served at least 10 days before hearing; if it is shown at the hearing that there is no material question of fact to be determined and that the law favors the movant, court may grant the motion.

56(d): Case Not Fully Adjudicated on Motion. Facts can be established for purposes of trial at hearing.

56(e): Form of Affidavits; Further Testimony; Defense Required. Affidavits must be made on personal knowledge; can’t be merely conclusory. If adverse party doesn’t respond to motion, it may be granted.

56(f): When Affidavits are Unavailable. Court can reject motion or grant a continuance if adverse party shows that not all relevant evidence is currently available.

56(g): Affidavits Made in Bad Faith. Expenses can be awarded if this is proven.

4. Celotex (asbestos death): Although Defendant bears the burden of proof on its motion for summary judgment, that burden can be met through a showing that Plaintiff hasn’t provided evidence to support an element of her claim (Defendant has no obligation to provide affirmative evidence of its own).a. Is this a departure from Adickes? Court says not.

i. Close, but not quite. Adickes involved a Defendant’s assertion that Plaintiff’s claim was false; here, Defendant is only asserting that Plaintiff hasn’t proven her claim true.

ii. Radical change in the role of summary judgment nonetheless; new standard makes it much easier for Defendant to win summary judgment.

b. Dissent points out that even though Defendant has only aduty to show inadequate proof by Plaintiff, this is still an affirmative duty on Defendant’s part.

c. Defendant doesn’t need affidavits to have affirmative proof. It is only necessary to show what’s in the discovery record.

V. JuriesA. Distinction between cases at law and in equity.

1. The right to a jury trial is only guaranteed for cases at law. 2. This rule looks back to English law in 1791 to make distinctions

between law and equity (7th Amendment).a. Actions for monetary damages are generally legal actions

and get juries.b. Actions for other relief (restitution, injunctive relief, etc.)

are generally equity actions and don’t get juries.3. DON’T use assessment of relative expertise to decide between

judge and jury.B. Chauffeurs (truck drivers sue union): Claim here didn’t exist in 1791, so

court must analogize to claims that did. 1. Court finds that legal issues are in equipoise: one law, one equity.2. Relief requested (monetary damages) is legal rather than equitable,

though, so court grants jury trial.a. Brennan suggested in concurrence that relief analogies

should be abandoned and jury rights assessed solely on basis of relief sought.i. Still a historical method, but “better” history in that

relief hasn’t changed much since 1791.b. Dissent suggested that the court should have stopped once

it determined that the claim was equitable and that there should be no independent historical analysis of relief (rather, the claim analysis should subsume it).

3. Claims requesting both types of relief are still divided in the relief phase, with a jury deciding monetary and a judge equitable relief.a. There’s no right to a bench trial, so in these situations jury

verdict trumps if relief requests overlap.C. Administrative tribunals have been held constitutional even where they

replace juries.D. Rule 38: Jury Trial of Right

38(a): Right Preserved. Right to a jury is inviolate. 38(b): Demand. Any party may demand a jury trial by:

o Serving a written demand on other parties within 10 days after the service of the last pleading on the relevant issue; and

o Filing the demand as required by 5(d). 38(c): Same: Specification of Issues.

o In the demand the party may specify those issues it wants tried by a jury.

o If no specification is made, it will be assumed that the party has requested jury trial on all issues so triable.

o Where a party has requested jury trial for only some issues so triable, the adverse party may, within 10 days of service of demand, demand jury trial on all other issues so triable.

38(d): Waiver. A party’s failure to demand jury trial is a waiver of the right to a jury. A demand for jury trial may not be withdrawn without the consent of the parties.

E. Rule 39: Trial by Jury or by the Court 39(a): By Jury. Trial of all issues where a jury has been demanded

shall be by jury unless:o (1) The parties consent by stipulation to a bench trial.

o (2) The court finds that there is no right to trial by jury. 39(b): By the Court. The court may order trial by jury where there is a

right to one, notwithstanding parties’ failure so to demand. 39(c): Advisory Jury and Trial by Consent.

o Court may use advisory jury in any action where there is no jury right.

o Court may order jury trial where there is no jury right except in actions against the U.S. where a U.S. statute forbids jury trial.

F. Jury Selection1. 28 U.S.C. § 1961:

a. All parties with a right to jury trial have the right to a jury selected at random and representing a cross-section of the district in which the case is tried.

b. All citizens have the right to be equally considered for jury service.

c. All citizens summoned for jury duty have an obligation to serve.

2. 28 U.S.C. §1862: No citizen shall be excluded from jury service on account of race, color, religion, sex, national origin, or economic status.

3. 28 U.S.C. §1870: a. Each party gets three peremptory challenges.

i. The judge can grant more if she so chooses.b. Several Plaintiffs or Defendants can be lumped together for

the purpose of allotting challenges.b. Challenges for cause are evaluated by the judge.

4. Batson: Criminal prosecutors can’t use peremptories to discriminate racially.

5. Powers: Criminal Defendant can bring a third-party equal protection claim to combat racially-motivated peremptories.a. Three components of admissible 3rd-party claim:

i. Harm to Defendant.ii. Close relationship between Defendant and 3rd party.iii. Inability of 3rd party to assert his own right to equal

protection.6. Edmonson: Prohibition against racial strikes extended to civil

cases because parties act as government agents when they participate in jury selection.a. Claimant must show a pattern of discriminatory strikes.b. Race-based strikes are never permissible.c. Scalia’s dissent points out that this may cut both ways

(Defendants may be precluded from selecting racially favorable juries).

7. J.E.B.: Extended prohibition on discriminatory strikes to gender.VI. Trial

A. Reid v. San Pedro (cow on railroad tracks): Directed verdict/judgment as a matter of law.1. If the evidence points equally to two possibilities, the court must

choose the one which doesn’t render Defendant liable.2. Civil trials require a preponderance of the evidence. 3. Court here found that a reasonable jury couldn’t conclude the

evidence favored Plaintiff’s claim.4. Court can also direct a verdict for the party with the burden.5. Three standards of consideration of evidence:

a. “Favorable evidence” rule—only favorable to Plaintiff. b. “Qualified favorable evidence” rule—all evidence

favorable to Plaintiff and all uncontroverted evidence.i. This rule is most prevalent in federal courts.

c. “All evidence” rule: blurs distinction between directed verdict and new trial.

B. Rule 50: Judgment as a Matter of Law in Jury Trials; Alternative Motion for New Trial; Conditional Rulings 50(a): Judgment as a Matter of Law.

o (1) If the evidence doesn’t support a reasonable jury finding for a party, the court may grant the adverse party’s motion for judgment as a matter of law.

o (2) Motions for judgment as a matter of law may be made at any time before submission of the case to a jury.

50(b): Renewing Motion for Judgment After Trial; Alternative Motion for New Trial.

o If motion is denied, movant may renew it within 10 days of judgment.

o Movant may alternatively request new trial under Rule 59. o If a verdict was returned, the court may:

Allow it to stand; Order a new trial; or Direct entry of judgment as a matter of law.

o If no verdict was returned, the court may: Order a new trial; or Direct entry of judgment as a matter of law.

50(c): Granting Renewed Motion for Judgment as a Matter of Law; Conditional Rulings; New Trial Motion

o (1) If renewed motion for judgment as a matter of law is granted, court shall also rule on new trial motion, if any and shall specify grounds for its ruling.

o (2) Motion for a new trial must be filed within 10 days of judgment.

50(d): Same: Denial of Motion for Judgment as a Matter of Law. Movant may assert right to new trial upon successful appeal.

C. Chamberlain (guy killed riding rail car): 1. Burden of pleading is least important—pleadings can be amended.

2. Burden of production is most important.a. Usually falls on same party bearing burden of persuasion.b. Note: falls on Defendant for affirmative defenses.c. Jury decides where “preponderance line” falls (between

directed verdict points).d. Federal and most state courts require a little more than a

scintilla of evidence.3. Burden of persuasion is only important where evidence is exactly

equal between parties.a. OR where jury is conflicted or confused.

D. Judgment Notwithstanding the Verdict (j.n.o.v.): Same as directed verdict except comes after the jury’s verdict.

E. New trial: 1. Often pressed as a motion in the alternative to j.n.o.v.2. Same standard as directed verdict and j.n.o.v.3. Can be the result of a problem with jury, process, or verdict;

“against the great weight of the evidence” standard.F. Rule 59: New Trials; Amendment of Judgments

59(a): Grounds. New trial may be granted:o (1) In jury trials for any reason historically recognized.o (2) In bench trials for any reason historically recognized.

59(b): Time for Motion. Must be filed within 10 days of judgment. 59(c): Time for Serving Affidavits.

o When motion is based on them, they shall be filed with it.o Opposing party has 10 days after service to file affidavits.

59(d): On Court’s Initiative; Notice; Specifying Grounds. Court may order new trial on its own initiative within 10 days of judgment.

59(e): Motion to Alter or Amend Judgment. Must be filed within 10 days of judgment.

G. Lind (Defendant promised Plaintiff raise and commission): 1. Trial court doesn’t have the right to order j.n.o.v. or new trial just

because she disagrees with the verdict.2. Heightened standard of appellate review for j.n.o.v. because the

discretion of the trial judge is being challenged.3. Sliding scale of review depending on complexity of case.4. Two levels of review:

a. Is trial court’s finding of error correct? (Often de novo.)b. If so, is the trial court’s ruling correct? (More deferential.)

5. Order can’t be appealed in federal system until after the new trial.a. However, where j.n.o.v. and new trial orders are issued

together, they can be appealed.VII. Appeal

A. Appeals usually don’t succeed.B. All federal and state courts allow at least one appeal of right but limit

circumstances in which appeal can be brought.1. “Clearly erroneous” standard of review for findings of fact.

2. Lower standard for legal rulings.C. Appeals can only be brought by parties adverse to the judgment, not just

averse to a ruling on an issue.D. Although constraints on appellate review make litigation quicker and

cheaper, they may also allow unchecked abuses by trial judges.E. Waiver

1. A party must raise an issue at trial to preserve it for appeal. 2. Exceptions:

a. Plain error by trial court; most common in criminal cases.i. Adverse party can raise new claims in defense of

judgment.b. Issues entangled with issues raised at trial:

i. Adequate notice.ii. Probably more legal than factual issue.

c. Significant change in the law since trial (Carson—depilatory “trade secret”)

F. Mass Mutual (double indemnity)1. Defendant not required to cross-appeal in order to raise new issue

in defense of judgment.a. In fact, adverse party in this situation can’t cross-appeal

because it isn’t adverse to the judgment.2. Not a waiver issue because Defendant isn’t raising a new issue, but

one it raised below.G. 28 U.S.C. § 1291: Final judgment rule

1. Appeal can only be taken from final judgment.a. Final judgment means there’s nothing left for court to do

but execute judgment.b. Prevents overloading of appellate courts and micro-

management of trial courts.c. However, may result in inefficiency (e.g., 12(b)(6)).

2. Arises from old division between law and equity; may not be as useful as it used to be, but still promotes efficiency lots of the time.

3. Risk of settlement, giving parties no opportunity to appeal.H. Liberty Mutual (Title VII claim—pregnancy benefits)

1. Trial court grants summary judgment on liability issue only.2. Appellate court permits appeal; U.S. Supreme Court reverses,

ruling that trial court’s judgment wasn’t final because it didn’t dispose of all issues (namely, damages).

3. Although trial court adhered to 54(b), it was inapplicable here because only one claim.

4. 1292 exceptions:a. 1292(a): Injunctions—here, judge hasn’t granted or denied

injunctive relief.i. Even if he has denied it through inaction, only an

adverse party can appeal.b. 1292(b): Where trial judge certifies issue for interlocutory

appeal.i. Here, this didn’t happen.

A. Trial judge must certify:1. Controlling question of law.2. Substantial ground for difference of

opinion.3. Will advance termination of lawsuit.

ii. Even if 54(b) portion of opinion counts, other requirements aren’t met.A. Defendant didn’t appeal within 10 days.B. No evidence appellate court would have

granted review.iii. Rarely invoked by trial court:

A. Lots of requirements.B. Undercuts trial court’s presumption of

control.C. Undesirable result if review is denied.

1. This could reinforce trial court too.iv. Appellate courts rarely grant review.

A. Want to keep their dockets clear.B. Maybe trial courts usually right?

5. Writ of mandamus: appellate court orders trial court to do its duty.a. Limited to extraordinary circumstances except where trial

judge has denied jury trial.I. Collateral order doctrine (Lauro Lines v. Chasser—forum-selection)

1. Court denied Defendant’s motion to dismiss.2. Appellate court rejected appeal because it was interlocutory.3. Collateral order doctrine treats these orders as final in themselves

where such an order:a. Conclusively determinesb. Important issuec. Separate from the meritsd. Effectively unreviewable

4. Collateral order doctrine not applicable here because this ruling didn’t conclusively determine an important issue.a. This issue not important enough to merit immediate review.b. What if Defendant requested injunctive relief on the

merits—wouldn’t this be immediately appealable? How should court treat this?

c. Collateral order doctrine most commonly applied where:i. Trial court denied jury trial.ii. Trial court denied in forma pauperis standing.iii. Trial court denied motion for new trial based on

attorney’s conflict of interest.5. Standards of review:

a. De novo: assuming evidentiary record is complete,

appellate court makes its own judgment on the merits.i. Used to review judgment as a matter of law and

j.n.o.v.b. Abuse of discretion: appellate court must decide what range

of discretion is appropriate for trial court.i. Preference for certain rulings (granting amendments

to pleading, e.g.)COMPLETE THROUGH 11/26.VIII. Alternative Dispute ResolutionIX. American Procedure in Comparative Perspective