Civ Pro Outline

I. Service of ProcessA. Commencement of Action: Rule 3

1. a civil action begins by filing complaint with courtB. Who May Serve: Rule 4(c)

1. anyone who is not a party and is at least 18 (FRCP 4(c)(2) p. 39)C. What is served:

1. Summons served with a copy of complaint within 120 days after filing complaint. (FRCP 4(c)(1))

D. Waiver of Service: Rule 4(d)1. If P notifies D of commencement of action, P can request that D waive service of

summonsa. D will have at least 30 days to return waiver

2. Streamlines process for the court – less complicated and less expensive3. Rules set up to make them want this – costs of service will be imposed on D for failure to

comply with request for waiver4. Perk = more time for defendant. If D returns waiver, has 60 days (compared to normal

20 days) after the date on which the request for waiver of service was sent to serve an answer to complaint

5. If you can show D wasn’t there for waiver, can defer costs – “good cause”E. Service within the U.S.: Rule 4(e)

1. pursuant to law of the state where court is located or state in which service is effected (FRCP 4(e)(1) p. 40)

2. summons must be delivered, with copy of complaint:a. to individual personally ORb. by leaving copies of complaint and summons at individual’s dwelling (FRCP 4(e)(2)

p.40)c. to some person of suitable age/discretion residing therein

a. leaves server of process with discretion to determine what’s suitabled. by delivering to agent for service of process

F. Due Process and Summons Service1. Calculated to give reasonable notice2. Core of due process = right to be heard3. Greene v. Lindsey (packet)

a. Posting on tenants’ doors is not reliable in this case b/c kids can rip them down (very fact specific holding)

b. Challenge brought based on how process was served according to state laws (in a federal court)

c. Mail “goes a long way” in protecting D’s constitutional right to have opportunity to be heard. Mail + posting = even better.

d. Factors in determining whether service of process satisfies due process of care?1. Cost of alternative service

a. mail is inexpensiveb. delay creates costs for both landlord (right to have new paying tenant) and

tenants (right to possession of property)2. Interest at stake:

a. tenant’s interest in maintaining their home is high – must consider consequences of eviction, etc..

b. whose interests count? Just the present tenants? Landlord? Future tenant?3. Increase in reliability of new service:

a. factual questions about the reliability of mail, posting, etc.. may be best answered by the legislature

4. Test = cost of alternatives, likelihood of error of alternatives and magnitude of interests at stake.

Service of Process1

a. Formula1. If < 2, switch to alternative2. If >, stay with 13. If =, either one is good

e. Dispute is whether Rule 4 (summons) is satisfied

Service of Process2

II. PleadingA. Objectives

1. give notice of nature of claim2. state relevant facts3. and in Code pleadings to narrow and formulate the issues involve4. pleadings determine scope of the action and any judgment

B. Background -- at CL, the pleading was the only stage in which issues were defined, so it was very important and the rules were very technical. A mistake in pleading could be fatal. Currently, pleading is only one stage in the issue-defining process so there’s a trend toward liberalizing the rules of pleading and streamlining the process.

C. Common Law v. Equity1. Common Law

a. Purpose1. cheaper and faster process if parties agree to one issue in dispute

b. Background1. original CL courts could only grant relief in accordance w/ recognized forms of

action and the pleading had to be drawn in terms of one of those forms. Amendments to change forms not allowed.

2. common law pleading aimed at separating disputes focused on law and those focused on facts. (they had to take their whole case on one or the other) and that determined whether case would be decided by judge or fact-finders.

3. One party per case -- inability to handle disputes with more than two parties4. Live testimony but it couldn’t be compelled

c. Common CL issues:1. breach of peace2. specific writs3. other fact finders?4. Juries = involved, not impartial5. Dilatory/delay on merit – responses = jurisdiction, suspension, abatement OR:

demurrer, traverse, and confession and avoidance6. monetary relief

d. Pros/Cons1. Pro: quicker resolution of dispute2. Cons:

a. less complete representation of issue, some times artificially categorized according to available writs

b. no remedy for disputes over fact and lawc. numerous pleadings were time consumingd. primitive methods for gathering pretrial infoe. inability to handle disputes involving more than two parties

e. Numerous Pleadings – In order to distill a case to one issue, numerous pleadings and counter pleadings take place. This was time consuming and used as a delay tactic1. Responses to Pleadings

a. Dilatory Responses – delayed suit (don’t take positions on facts or laws)1. jurisdiction (not here)2. suspension (not now)3. abatement (not like this)

b. Peremptory Pleas – how D responds grappling w/ merit after P. enters suit for complaint1. demurrer (so what – facts are true, but no legal issue)2. traverse (not true – legal issue, but facts are untrue)3. confession and avoidance – concedes legal sufficiency and facts but

alleges additional facts that change legal issue. (yes, but)3. Chancery/Equity

a. purpose:1. to deal with cases that had no remedy in CL courts

Pleading3

b. Background1. Also royal court. Courts of equity heard cases where a remedy at law was

inadequate.2. More of a fact-based pleading3. Parties could be subpoenaed but couldn’t be heard live – restricted to written

testimony (enormous reliance on written depositions)4. This pleading = less formal, more detailed, can last forever.5. Could be multiple parties to a case.6. issued “special remedies” / specific performance7. detailed pleadings8. had to include all parties9. no juries

c. Pros/Cons1. Pro: more complete findings2. Con: cases took forever

d. Common equity issues:1. trust2. injunctive relief3. fraud4. mortgage

e. Difference from CL1. mode of administering justice2. mode of proof3. mode of relief

D. Our System – Merging Law and Equity 1. Legacy of Chancery and Common Law

a. Our substantive law grew out of attempts to fit facts into rigid forms (writs).b. Our system was meant to take the best of both system and leave the rest behind.

2. 2 Step Reform – Intro. Of Federal Rules and Intro to the field code adopted by legislaturesa. Though details differed, reforms had 2 common themes: simplified pleading and

merged law and equity into a single system.3. Common ground between code and rules pleading

a. both merge procedural systems of law and equityb. both were designed to get away from complexities of common law and equitable

proceedings, esp. those of CL pleadings.c. Both designed to ensure clear and simple articulation of legal grievancesd. Elements of substantive law must be addressed in both in order to survive dismissal

4. Differencesa. code requires allegation of facts, while Rules allow pleading of conclusions5. Places where you can see merges in today’s system:

a. pretrial pleading is like CL but you’re allowed more than one form in actionb. Summary Judgment – reflects CL interest of narrowing it down to one issue and

deciding itc. Discovery – from CL and today, same concerns of whether it goes too fard. Injunctions – as in equity, today you have to show other relief falls short

E. Field Code Pleading1. adopted by State Legislatures, reflected populous interest in law being clearer.2. goal = simplify pleading and focus on merits. Address all elements and explain case

clearly.3. Three stages of pleading: complaint, answer reply4. Must plead the facts constituting cause of action and can not plead conclusions

(allegations which are too general) or evidence (allegations which are too detailed)a. Had to have facts to support every element of claim you make, but not necessary to

prove them. Purpose was to establish every element of the substantive law.b. Short and plain statement of claim

Pleading4

c. P need not fit facts into particular forms of action. Entitled to recover under any legal theory applicable to facts pleaded.

d. Can’t plead conclusions b/c it won’t weed out non-meritorious cases (won’t know if there are facts to back up conclusions) and it doesn’t give D adequate info about claim

e. Can’t plead evidence b/c we don’t want trial to take place in pleading stage.5. Pleading can be insufficient (demurrer) if: (only in first 2 cases does leave to amend

make sense)a. failure to allege facts or legal conclusions that establish element of law in

question.b. States conclusions of law but fails to allege factsc. Alleges facts relevant to each element of the law but there’s no legal sufficiency.

6. Problems:1. hard to determine exactly sufficient facts (what is not evidentiary or conclusive)2. overly technical process.

7. Code pleading is still the system in some states – CA and IL8. This merges procedures of law and equity but keeps the remedies distinct.9. Far fewer pleadings in each case b/c there’s no objective to reduce the case to a single

issue through a pleading dialogue.10. Gillispie v. Goodyear Service Store (p. 392)

a. Case dismissed with leave to amend b/c P only alleged legal conclusions but failed to allege facts necessary to establish elements of law – i.e. facts didn’t constitute cause of action

b. msg. of this = don’t plead conclusions, plead factsc. choose better facts -- she alleged they trespassed…. But she doesn’t identify.

Goodyear probably has no idea how to respond to complaintd. Why would P appeal?

1. P has few facts to lay out and the more she does, the more ridiculous her case looks

2. Prolonging lawsuit increases chances of settling out of court3. P sincerely believes she’s been wronged but most of supporting info is in D’s

hands (discovery)F. Rule 8 – Pleading under Federal Rules (Notice Pleading – all it requires is to provide notice)

1. Pleading established in a very general way but must include (FRCP 8(a)):a. grounds for jurisdictionb. claim for reliefc. relief sought

1. P needn’t plead facts as long as his claim is something legally cognizable. He must, however, allege all the elements required by substantive law to satisfy a cause of action.

2. General:a. used in all federal courts and some state courtsb. conclusions can be plead but there still must be some factual basisc. development of facts takes place in discovery stage (shift in focus to discovery)

3. Purpose:a. to ID transaction from which the P’s claim arises, so D has notice

4. Duncan v. AT & T (didn’t even mention what race she was) (p. 401)a. Problems with complaint

1. Fails to state a claim (for a 1981 violation) in which relief can be granted (court can’t even deal w/ that) -- She doesn’t give facts – element not ID’d

2. Complaint is “so poorly composed as to be functionally illegible”b. Must allege some facts in the complaint in order to provide notice to D and survive a

12(b)(6) motion1. can’t conclude discrimination without anything else2. must give notice to D

c. complaint harshly dismissed, with prejudice

Pleading5

5. Rannels v. SE Nichols (p. 409)a. failure to show probable cause said district court BUTb. court of appeals reversed. Read factual allegations literally and interprets law to

support elements of P’s malicious prosecution claim. Remember, this isn’t code pleading. It can be bare bones complaint.1. Averment in complaint that D’s president support the malicious prosecution

enough to support the element of “malice” in the claim.2. Averment that Ds knew the reason or the stop order on the check was the

dispute over defective merchandise and that such knowledge established “want of probable cause” for criminal proceedings.

6. Complaint – Bare bones vs. completea. Reasons to make it complete:

1. impress judge – sympathetic as possible at first intro.2. Scare opponent

3. For the press4. D. must reply line by line5. If you allege a lot, there may be automatic disclosure

b. Reasons for bare minimum1. don’t want to reveal too much to opposition2. so you’re not held to things you plead that may not be true3. if you’re not sure of merits and you need facts…

G. Consistency in Pleadings: Rule 8(e)(2)1. ideas that are apparently inconsistent may be pleaded alternatively or hypothetically

a. meant to be done in good faith b/c P doesn’t have all information and doesn’t know which to allege1. pooling of resources and evidence leads to a more efficient and single just result2. tempered by burdens of proof. May realize they may not convince jury3. will have one story by time of trial

b. P can only plead inconsistent versions of fact if P indicates some good reason why he wouldn’t know which was true

H. Sanctions: Rule 111. look to actual bad faith of lawyer

a. why? To promote self policing by attorneys and to deter groundless and frivolous claims

b. provides a check for ease of access to courts resulting from liberal pleading2. applicable to all filings except discovery3. by signing a filing, a person certifies:

a. reasonable inquiry with regard to factual and legal grounds for positionb. allegations have evidentiary support (FRCP 11(b)(3))c. claim is supported by law (FRCP11(b)(2))d. paper not filed for improper purpose (FRCP 11(b)(1))

4. Sanctions: a. Initiated by motion made separately from other motions FRCP 11(c)(1)(A)b. highly discretionary as to whether the court will even impose them– (FRCP 11(c))

1. lots of stigma – so not lightly imposedc. great latitude in selecting the sanction (FRCP 11(c)(2))d. imposed for deterrence reasonse. if monetary, paid to the court and this is therefore not a fee-shifting devicef. discretionary whether to award attorney’s feesg. no monetary sanctions on represented parties, just lawyers or law firms (FRCP 11(c)

(2)(A))5. Procedure

a. motion for sanctions must be made separately (FRCP 11(c)(1)(A))b. 21 day safe harbor provision – motion must be served on the party, and not served to

the court until 21 days later, so as to give the offending party a chance to amend its filing without suffering sanctions (FRCP 11(c)(1)(A))

Pleading6

c. court may itself impose Rule 11 sanctions (11(c)(1)(B))d. reviewed under abuse of discretion standard

6. Business Guides v. Chromatic Communications – p. 417a. violation of 11(b)(3) – that means P stated facts without evidentiary supportb. P had plenty of time to correct errors in identifying “seeds” to confirm copyright

infringementc. 1993 amendment made sanctions optional provided alternative to attorney’s fees.

1983 amendment mandatory sanction of attorney’s fees which led to explosion.7. RTC v. Gerbode – p. 420

a. frivolous claim signed by lawyer – Rule 11(b)(2) violation – P’s complaint rested on unreasonable reading of law

b. Groundless RICO (racketeer/corruption act) action not warranted by existing evidence

c. Monetary sanctions can’t be imposed against party for 11(b)(2) but can be imposed against law firm

d. Monetary sanctions awarded instead of nonmonetary sanctions b/c the complaint had already been dismissed.

e. safe harbor (21 days) Rule 11(c)(1)(A)1. safe harbor provision forces a response to complaint since responses must occur

within 20 days, yet a Rule 11 filing may not be filed until 21 days after the complaint. Contradictory but not resolved here.

8. Rules 11 vs. 12(b)(6)1. Rule 11 = attack on people vs. attack on paper2. You could file both (separately) but this might piss off judge and its expensive3. 12(b)(6) doesn’t have 21 day period and stops the clock4. 12(b)(6) – if motion wins, litigation is dismissed (some times with leave to

amend)I. Burdens of Pleadings1. Why important?

a. tends to follow closely burdens of proofb. if one has burden of pleading, one loses if one fails to carry burden

2. Possible rules for establishing burden of pleadinga. give burden of pleading to party with greater knowledge of act – i.e., P is in best

position to know whether he was negligent…b. give burden to party contradicting usual state of affairsc. statutory language may give clues; unreliable method in close cases

3. Risk of not pleading an element you’re supposed to:1. complaint is vulnerable to a 12(b)(6) motion

J. Defendant’s Response to a Complaint: Rule 121. pre-answer motion (alternative to answering) – permits D to raise certain types of

objections to the action at very early stage (motion = request for specific relief sought)a. raise objections

1. motion to dismiss 12(b)(6)2. motion for a more definite statement: 12(e)3. motion to strike 12(f)4. motion for judgment on pleadings 12(e)5. motion for SJ: Rule 56

b. Why?1. avoid revealing hand2. limit or dismiss case3. buy time

2. If D makes no such pre-answer motion, or if it is denied, D must file answer3. when answer is presented: Rule 12(a)

a. within 20 days after being served summons or complaint1. if the pleading in question is an amended pleading, response period is 10

days under Rule 15(a)

Pleading7

b. if waiver of service of summons, within 60 days after requestc. If D files a 12(b) motion, he’ll have 10 days after motion is denied to file his answerd. If D’s answer includes a counter-claim, P must file his reply within 20 days

4. Defenses that can be raised as a motion (not just responsive pleading) (Rule 12(b)) – based solely on pleadings:a. lack of jurisdiction over subject matter -- (this can be raised at any time 12(h)(3))b. lack of jurisdiction over personc. improper venued. insufficiency of processe. insufficiency of service of processf. failure to state a claim upon which relief can be grantedg. failure to join a party under Rule 19h. b,c,d,e waived if not consolidated (12(g)) or if not in first responsive pleading or pre-

answer motion (12(h))i. If D has suffered any prejudice from these, he should be able to tell right awayj. f and g may be made at any time before and during trialk. any 12(b) defense stops the answer clock until judge makes ruling. P can amend

complaint any time before thenl. 12(b) defenses are also available to P when D answers (cross-claims, affirmative

defenses, etc…)5. Fatal:

a. subject matterb. lack of jurisdictionc. improper venued. 12(b)(6) – although usually P will be given one chance to amend

6. Motion to Dismiss for Failure to State a Claim – Rule 12(b)(6)a. tests legal sufficiency of P’s claim. Motion should be granted where:

1. P states claim that doesn’t exist under current law2. P has failed to allege all necessary elements of cognizable legal claim

b. Black letter law = complaint shouldn’t be dismissed unless court is certain that P can’t prove a set of facts in support of claim that would entitle him to relief

c. court doesn’t consider any evidence or pleadings besides complaint when deciding motion1. if matters outside the pleading are presented to court as part of motion, motion is

treated as a SJ motion under Rule 56d. in considering motion, pleadings must be liberally construed in favor of sustaining

complaint (assumes facts are true)e. dismissal of suit for failure to state a claim is a drastic measure. However, dismissal

is usually without prejudice and P can file an amended complaint.f. Certain claims must be pled with particularity and therefore the 12(b)(6) motion will

be granted on “easier” grounds than in other claims (i.e. fraud, mistake, civil rights)g. Motion to dismiss ruling is not appealable but actual final judgment is

7. Motion for judgment on pleadings: Rule 12(c)a. can only be made after pleadings are closed (i.e. after answer has been filed).

Different than 12(b)(6) b/c that’s made (generally) before D files answer and this is after.

b. If, on motion for judgment on pleadings, any new evidence is introduced that’s not contained in pleadings, motion is treated as motion for SJ under Rule 56.

8. Preliminary hearings : Rule 12(d)a. defenses in 12(b) should be heard and determined before trial on application of any

party9. Motion for more definite statement: Rule 12(e)

a. Must be made before responsive pleadingb. not used anymore, instead rely on discovery unless claim can be refuted by filing a

12(b)(6) motion

Pleading8

c. will be granted only when pleading is so vague and ambiguous that it would be unreasonable to require moving party to reply to it

d. Purpose = so D knows exactly what he’s responding to10. Motion to Strike: Rule 12(f)

a. Before responding to a pleading (or if no responsive pleading is permitted) and if motion is made within 20 days after service of pleading, court may order stricken

b. either party may move to strike an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter in pleading

c. strikes things that are inflammatory w/o cause (may depend on whether allegations are likely to prejudice moving party)

d. used infrequently11. Consolidation of defenses in motion: Rule 12(g)

a. party may consolidate defenses in one motionb. if moving party omits any available defense or objection from the motion, the party

shall not thereafter make such defense or objection, except as provided in 12(h)(2)12. Waiver or preservation of certain defenses: Rule 12(h)

a. see aboveb. also, court shall dismiss action whenever it appears that it lacks subject matter

jurisdiction.K. Answers

1. Procedure:a. must be stated in “short and plain terms” (form same as complaint) and shall admit

or deny (FRCP 8(b)) and shall set forth any affirmative defense (FRCP 8(c))b. D must answer within 20 days of service (FRCP 12(a)(1)(a))

1. unless he files a 12(b) motion in which case he must answer within 10 days of motion’s denial (FRCP 12(a)(4)(a))

2. unless he waives service – then 60 daysc. if D doesn’t raise defenses of personal jurisdiction, venue, form of process, or

method of service of process in his answer, he has waived those defenses for all time2. Purpose:

a. responds to allegations in complaintb. asserts any additional info.

3. Forms of Denials – Rule 8(b)a. P maintains burden of proof in trial of things deniedb. Denials:

1. must “fairly meet the substance of the averments denied”a. General denial – denies every material allegation in P’s complaint, incl.

Jurisdictionb. Specific Denial – Denies allegation of a paragraph/averment of complaintc. Qualified Denial – denies part of an allegationd. Denial of knowledge or information. Good faith belief complaint is false

but insufficient first-hand knowledge to back it up1. except when such info is certainly within d’s control2. except when such info is public record

c. Failure to Deny: (Rule 8(d))1. averments in complaint are admitted when not denied in answer

a. except allegations of damagesb. except immaterial allegations

2. Zielinski v. Philadelphia Piers, Inc. (p. 454) (forklift. D denied allegations. Forklift was being leased. )– about answering – Rule 8(b) required a more specific answera. D. may not make general denial when his intention is to deny part of

averment and admit rest1. b/c of D’s improper general denial, D was estopped (prohibited) from

denying ownership of forklift

Pleading9

2. P encouraged an unclear response by consolidating a number of allegations in one paragraph of complaint

b. Entity that has to pay is insurance companyc. Specificity in answer must match specificity in complaintd. D has obligation to make denials with enough specificity so that a

reasonable P would be alerted to individual matters denied3. Affirmative Defenses

a. New matter D must prove in order to avoid P’s claim – Defense’s relying on facts particularly within D’s knowledge to be found in affirmative defense

b. D bears burden of proof of affirmative defenses at trialc. Must be specifically pleaded or else right to use them waivedd. Layman v. Southwestern Bell Tel. Co. p. 460 (digging ditch)

1. easement is an affirmative defense and certain kinds of affirmative defenses (when D. intends to rest his defense upon some fact not included in allegations necessary to support P’s case) shall be preceded to a preceded pleading. D should have said this in his answer.a. avoid surprising P at trialb. lay out responsibility of burden of proof

2. follows a statute like 8(c) 3. D could still amend its answer to extent that it doesn’t prejudice P4. D must plead affirmatively and prove his affirmative defenses

e. List of Affirmative Defenses – (FRCP 8( c))1. contributory negligence2. fraud3. res judicata4. statutes of limitations5. illegality

f. Qualified immunity 1. requires heightened pleading b/c idea of qualified immunity (if actions took

place under reasonable misapprehension of law) is to protect govt2. This “immunity” is more than a defense, it’s a right not to stand trial3. This is often pleaded in response to a 1983 – permits a suit against those who

act “under color of law” to deprive people of constitutional rights4. this is at odds with Rules preference for discovery5. Leatherman doesn’t resolve this problem – it held courts couldn’t require more

specific pleadings of civil rights but didn’t answer whether heightened pleading required in cases involving individual government officials (as opposed to govt entities in Leatherman)

6. Schultea v. Wood (p. 435) (applies to 5th Circuit only) –P. need not anticipate qualified immunity defense but will be required to respond with particularity

1. idea = protect govt officials from privacy-invading discovery7. Gomez v. Toledo p. 444 (P. gave testimony vs. 2 other officers’ statements.

Was transferred, demoted, charged with bugging phones, and fired.)a. Issue: Relying on qualified immunity defense, who has burden of pleading

good faith (if you’re D) or bad faith (if you’re P)?b. Holding: qst of good/bad faith is uniquely within D’s knowledge, so he

must plead affirmative defense of qualified immunity in his answer.c. Issue is about burden of pleading but it’s important b/c whoever has burden

of pleading good/bad faith will have burden of proof at trial (difficult for P to prove – may not be able to prove D’s mental state)

L. Reply – 7(a)1. reply required if answer contains a counter claim labeled as such. If it’s an affirmative

defense, not counter claim, a reply technically isn’t required.2. Also permits court to order a reply on its own motion or on motion of a party

M. Rule 15 – Amended and Supplemented Pleadings1. Tries to balance “easy amendment” with “prejudice”

Pleading10

2. Extent to which party can alter his case depends on stage of proceedings at which amendment is sought

3. Prior to Triala. either party may amend once as a matter of right either before a responsive pleading

is served, or if none is allowed, within 20 days after the pleading (FRCP 15(a))1. motion is not a responsive pleading so if D files a 12(b)(6), P may still amend

b. party may amend by leave of court – “leave to amend shall be freely given when just so requires” means that would be amender has a good reason for not getting it right the first time and that there would be prejudice. FRCP 15(a)1. court grants this liberally unless amendment is prejudicial2. Beeck v. Aquaslide p. 466

a. absent a showing of actual prejudice to P or evidence of bad faith by D, leave to amend shall be freely given by court

b. here, denial of manufacturer of slide by D was not in bad faith (b/c many imitation slides on market) and does not prejudice P (b/c he can still sue actual manufacturer)

c. still, it’s debatable whether there’s actual prejudice. It will be a heavy burden on P to find original manufacturer and the claim may be barred of Statute of limitations has run

d. did have another way out under fraud thingc. motion to amend must be filed with court and if granted, amended pleading must be

filed and servedd. response to amended pleading must be served within 10 days (FRCP 15(a))e. sole question on whether amendment is allowed is whether it results in prejudice – if

the other party is worse off than it would have been had the material been included in original document

f. Relation back (15(c))– what happens when P seeks to amend his complaint after statute of limitations would otherwise have run on new claim?1. applicable in statute of limitations cases2. at some point, D should no longer have to fear suit – don’t want it to intrude on

statute of limitations’ purpose3. if amended claim arose out of same conduct, transaction, or occurrence set forth

in original pleadings, it will be allowed after the statute of limitations runs b/c of relation back (FRCP 15(c )(2))a. the D is not prejudiced b/c she had notice of a claim on the basis of that

particular fact setb. notice standard also used – court asks whether original pleading gave D

notice of the claim now being asserted4. Moore v. Baker p. 474

a. allegations in original complaint that D violated informed consent laws prior to surgery. P later attempted to amend complaint to allege negligence during and after surgery

b. court held that nothing in original complaint put D on notice that new claim of negl might be asserted at some point in future. P had no ground to amend.

c. relation back applies only when new claim applies back to old claim5. Bonerb v. Richard p. 476

a. Original complaint alleged P was injured b/c the basketball court was negligently maintained and supervision bad

b. P moved to amend complaint to add new cause of action – counseling malpractice

c. P had to amend b/c Statue of Limitations had run, and he had no other optiond. Court allowed amendment b/c it found same nucleus of facts supporting

original claim supported new claim. Therefore, D was on notice from facts in original complaint

6. Reconciling Moore and Bonerb

Pleading11

a. when claim is original complaint is very narrow (as in Moore), D might think that general claim had been considered and rejected

b. when claim in original complaint is general, as in Bonerb, D should probably be alerted to possibility that a more specific claim could arise

7. new defendants can only be joined after statute of limitations if they relate back, had notice within 120 days of complaint, and should have known that were it not for a mistake of identity, they would have been named (FRCP 15( c)(3))a. Zielinski was before change of name rule

8. when amendment is to claim or theory, not underlying facts in support of claim, court will typically find that claim arose out of same conduct, transaction, or occurrence (Rule 15(c )) and allow amendment

g. Amendment to conform to evidence – Rule 15(b)1. when issues not raised by pleadings are tried by express or implied consent of

parties, they’ll be treated as if they had been raised in pleadings2. amendment of pleadings as may be necessary to cause them to conform to

evidence may be made upon motion of any party at any time(even after judgment) – but this isn’t necessary b/c we focus on trial, not pleading now

3. contested amendment should be allowed liberally according to prejudice standard (15(b)). Also, merits of case should be serveda. Court also takes into consideration:1. bad faith on part of party2. delay tactic3. repeated failure to cure pleading

4. general rule = truth seeking is protected unless actual prejudice is createdh. Amendment supersedes original pleadingi. Supplemental pleadings – allowed by court’s discretion, which it exercises liberally

(FRCP 15(d))

Pleading12

III. Discovery – “pretrial” between pleading and trialA. Purpose – to obtain factual info. and narrow issuesB. Effects – promote settlement, simplify pleading, alter litigation costs, harassC. Courts tend to stay out of discovery disputesD. Rules only apply when informal info. gathering doesn’t workE. Basic Discovery Devices

1. Automatic/Pre-discovery Disclosure – FRCP 26(a) has since 1993 provided for automatic disclosure of certain info.a. Goals:

1. Give parties equal access to all data, to ensure adjudication of cases on their merits

2. Determine issues that are actually in dispute3. Preserve evidence that may be unavailable at trial4. To save expense and time on core info that would be discovered anyway

a. could be bad b/c it could lead to discovery litigation and b/c it takes away from the adversary nature of the process

b. what materials? (FRCP 26(a)(1))1. identity and addresses of persons with relevant information2. relevant documents3. damages computation with supporting documentation4. insurance agreement covering claims in the suit5. Later, closer to trial, must disclose:

a. identity and reports of experts (26(a)(2))b. names of witnesses and documents and depositions (26(a)(3))

c. must be made within 10 daysd. sanctions for failure to disclosee. Rule 26(e): parties under duty to supplement or correct disclosures if, for ex., new

info comes to light that wasn’t available at time initial disclosure made.f. BUT – most jurisdictions opt out of automatic disclosures – 26(a) says federal

districts can decide for themselves whether to require thiseg. 26(f) requires parties to meet and confer about disclosure and subsequent discovery

before traditional discovery by interrogatories, requests for documents and depositions

2. Depositions – taking of oral testimony from witnesses – Rule 30a. Guidelines:

1. both parties and non-parties may be deposed. Non-parties must be subpoenaed2. maximum of 10 unless court allows otherwise

b. Bad b/c:1. time consuming2. expensive3. generally inadmissible in court unless witness is unavailable, or for

impeachment purposesc. Good b/c:

1. witness is sworn and therefore her testimony is subject to penalties of perjury2. counsel gets to see witness and thus judge how effective they’ll be3. examining counsel can frame follow-up questions and explore in detail issues

that arise4. gets deponent “on the record” – commits her to a detailed version of the relevant

events and if she later changes testimony, this can be used to impeach her testimony

d. Statements made in deposition can be used in a limited manner during the trial, although they aren’t considered to be “admitted” as under Rule 36.

e. Only questions about which the deponent has personal knowledge are allowedf. Tend to come after interrogatories and requests for documents so counsel will be

preparedg. Objections are noted but generally answers are still given (unless prejudiced)

Discovery13

h. If deposing counsel wishes a non-party deponent to produce tangible evidence, they must serve subpoena duces tecum to command production of request items

i. Time and place informally arrangedj. Counsel may cross-examine to clarify comments made during deposition or if it is a

“trial deposition” (to be read in place of live testimony)3. Interrogatories

a. often used as first step in discoveryb. guidelines:

1. may only be served on party2. maximum of 25 unless court allows otherwise3. may relate to fact or application of law to fact4. may be based on info to which he has reasonable access, not just personal

knowledgec. statements made in interrogatories not legally binding and may be contradicted in

courtd. advantage: cheaper than depositione. disadvantage: can’t follow up with questions. May be ineffectivef. questions which are objected to are not answeredg. writtenh. often most effective in obtaining basic background information

4. Requests for Admission -- Rule 36a. means of narrowing the scope of the trial by eliminating uncontested issuesb. may be served on a partyc. functions more like a pleadingd. admissions are binding at trial (not like depositions and interrogatories)e. takes burden of proof off table

1. if party served and doesn’t respond, it serves as an admission5. Requests for Documents – Rule 34

a. requests may only be served on partiesb. party who produces documents shall produce them as they are kept in the usual

course of businessc. to get documents from non-parties – subpoena (Rule 45)d. subject to abuse b/c inexpensive to make request but costly to meet ite. intrusivef. parties may resist requests by construing them narrowlyg. Rule 34 not limited to documents – it authorizes inspection of tangible things

6. Medical Examinations – Rule 35a. requires court orderb. invasivec. parties onlyd. order can be made on motion, only for good causee. if party does obtain examination of another party, she must provide a copy of the

report to examined party if requestedF. Scope of Discovery

1. Discovery applies to everything that’s relevant and not privileged. Very broad. Nothing to do with admissibility in court. FRCP 26(b)(1)

2. Court can limit this standard as it sees fit. Rule 26(b)(2)a. may limit length of depositions under Rule 30b. may limit number of requests for admission under Rule 36c. may limit discovery tools at its own discretion or pursuant to a motion for a

protective order to protect a party or person from annoyance, embarrassment, … undue burden or expense under (c)

3. Attorney – Client Privilegea. absoluteb. belongs to client – it is she who can waive it

4. Work-product

Discovery14

a. materials prepared and info developed in anticipation of litgation are only discoverable if party can show a substantial need and inability to obtain material by other means (FRCP 26(b)(3))

b. only applies to documents or tangible things1. names of witness can’t be withheld under Rule 26(b)(3)2. an interrogatory asking for names of witnesses must be answered

c. mental impressions and legal theories not discoverabled. belongs to both client and attorney – both must waivee. work prepared for litigation other than current litigation not protectedf. Purpose – to maintain adversary process while also maintaining full factual

disclosure. Otherwise:1. attorneys would have no incentive to work hard b/c opponents could discover

their work2. clients would not be well-served3. other lawyers would freeload4. lawyers would have to be witnesses, which would pit them against their clients

and be potentially bad5. Hickman v. Taylor p. 521a. D’s attorney refused to turn over copies of witness statements and to summarize oral

statements taken from others connected to accident. (tugboat sinking). Didn’t want to give written nots from interviews or info on the interviews that wasn’t recordedb. work done in anticipation of litigationc. Work product exception: no discovery on work products in this case b/c:

1. P. could have gotten info. in other ways2. Court held lawyers’ mental impressions absolutely protected3. Lawyers shouldn’t be forced to produce new material for their adversaries4. No proof that production is essential to this case5. Not what discovery is about. Discovery is for facts and this is legal theories6. Lawyer shouldn’t be forced to do his adversary’s work – encourages bad

lawyering7. Makes lawyer into a witness and pits them against their client8. Important to maintain prof. privacy of lawyers

d. This case was 1947 and 26(b)(3) was 19706. Work product protected except when there’s no other way to get ita. 26(b)(3) decision tree (10/27)

11 is it a document or tangible thing? No, not under 26(b)(3) yes 11 is it irrelevant or privileged? Yes, no discovery. No 11 is it prepared in anticipation of litigation. No, discovery. Yes 11 does the party need it and is unable to get it another way? No, no discovery.

Yes 5. are there any mental impressions or legal theories in the evidence? No, 100%

discoverable. Yes, discoverable minus mental impressions and legal theories.can’t reveal list of who was interviewed b/c that reflects strategy

7. Differences between Hickman and 26(b)(3)a. Hickman applies only to lawyers while 26(b)(3) applies to anyoneb. 26(b)(3) applies only to documents and tangible things while Hickman applies to

anythingG. Expert witness – Rule 26(b)(4)

1. like work product but not just document but also the person that is seen proprietarily2. rules grant protection to experts who have developed info in preparation of litigation –

not just experts3. mental impressions of expert witnesses can be discoverable b/c this is the crux of expert

testimony4. testifying experts can be disposed after disclosure (FRCP 26(b)(4)(a))

Discovery15

a. 26(a)(2) requires as part of initial disclosures, info about experts who may testify and about basis for their testimony at least 90 days before trial together with a report with their opinions, compensation, qualifications, and bases for opinions

5. One issue is that some think it is impossible to cross-examine experts unless you have prior opportunity to depose and see written report

6. non-testifying experts are rarely discoverable (FRCP 26(b)(4)(b))a. unless you can’t obtain facts and opinions by other meansb. if they’re discoverable, both parties share costs of expertsc. disclosure of identities or opinions not required

7. informally consulted expertsa. virtually no way to obtain discoveryb. you may be able to get names of informally consulted expertsc. Rule 26(b)(4)(B) isn’t clear about whether or not these names must be disclosed

8. Reason to protect experts from discovery:a. attorneys need to prepare their cases w/o fear that any negative info they uncover

will necessarily be turned over to opposing partyb. unfair to allow a party to benefit from the effort and expense incurred by other party

in preparing his own casec. unfair to experts and might diminish their willingness to serve as consultantsd. risk of prejudice if an expert is retained by both sides

9. party seeking discovery must compensate expert witness for his time unless “manifest injustice” would result– Rule 26(b)(4)(C)

10. Thompson v. Haskell p. 536 – psychologista. P alleged that as a result of sexual harassment by employer, she was fired and

became extremely depressedb. Psychologist examined P 10 days after termination. D sought discovery of reportc. Here there were “exceptional circumstances” requiring disclosure of report. In light

of P’s allegation, her emotional state immediately after discharge was highly relevant b/c this was only report made on her condition and because of passage of time, D couldn’t obtain comparable info by any other means.

d. if it is impractical for party seeking discovery to obtain info any other way, non-testifying expert testimony is discoverable

11. Chiquita v. M/V Bolero Reefer p. 537 – boata. P’s expert examined vessel and loading gear. D sought to compel production of file

compiled in his investigation.b. Court held opinions of non-testifying expert not discoverable although factual

observations arec. No exceptional circumstances b/c D could have sent its own expert to investigated. Not the case that any document in expert’s possession is protected from discovery.

Like work product doctrine, underlying facts are discoverable while opinions and mental impressions aren’t.

H. Discovery Abuses1. Types of discovery abuse:

a. asking for too much1. rules limit number of interrogatories and depositions allowed

b. providing too littlec. mismatched discovery – when parties have unequal wealth

2. court may issue protective orders to prevent undue burdens only a showing of good cause by party FRCP 26( c)

3. Two basic ways for court to control discovery:a. protective order: Rule 26 ( c)

1. response to party that asks for too mucha. although id party is asking for stuff that’s privileged or irrelevant, one may simply decline to answer

2. court may limit discovery even if it is otherwise discoverable if it produces embarrassment, undue burden, expense, etc…

Discovery16

b. motion to compel: Rule 37(a)1. response to party who gives too little

c. other solution = discovery conference (Rule 16) where judge is involved in framing of discovery plan

I. Rule 37 – Sanctions1. Basic idea:

a. parties should try to work out their own problems before going to judgeb. court has broad discretion whether to impose sanctions or not. Tends to choose least

severe or most deterrent one.2. Before they’re imposed, party seeking discovery must obtain an order compelling

discovery. 3. Sanctions can be orders establishing facts, disallowing certain claims, dismissing the

case, finding you in contempt of court, etc…4. Rule 26(g) also sanctions on discovery b/c signature of lawyer certifies discovery isn’t

unreasonable or unduly burdensome or expensiveJ. Appellate Review of Discovery Orders

1. Not final, so they’re not appealable usually2. Trial court can certify qst. for appeal3. Appellate court can issue mandamus if it really wants to review order

Discovery17

IV. SettlementA. P or court can dismiss case by filing notice of dismissal (FRCP 41(a))B. Discovery drives people to settle

1. Reasonsa. Leads to rational decision making – info exchanges frame the issue very well –

allows parties to see strengths and weaknesses of caseb. Sometimes discovery makes it so you can’t afford to continue (worst case)c. Makes people see how expensive it would be to go to triald. To avoid more embarrassmente. Shift from adversarial pleadings to less adversarial discovery (ex=guys smoking)

2. cases are less likely to settle when result not predictable3. settlement negotiations can be undertaken with a zero sum approach, a cooperative

approach, or combination of twoC. Settlement = Contract

1. That’s why courts don’t get involved unless class action or incapacity2. Typical kinds of contract

a. to dismissb. for confidentialityc. for a judgment

3. Both parties give and get thingsa. For P:

1. money2. confidentiality3. clear enforceability4. enforceable in federal court

b. For D:1. confidentiality2. promise not to sue

c. For both:1. cheaper2. faster3. perhaps qualitatively better b/c can take into account nuances and subtleties in

facts and parties’ interests that could be lost at trial4. BUT may permit might to triumph over right and deprives public of adjudication

on issues4. voluntary dismissal (Rule 41(a)) – file a notice of dismissal at any time before service by

adverse party of an answer or of motion for SJ5. If D wants lawsuit not only to go away but for court to enter judgment on merits, a public

act rejection P’s suit, a voluntary dismissal won’t do that but involuntary dismissal (Rule 41(b)) does – this is for failure of P to prosecute or to comply with rules. Also allows scope of claim to be defined by doctrines of former adjudication rather than contract of settlement.

6. Future disputes hinge on interpretation of contractD. Court involvement in settlements

1. Courts some times play an active role in settlement in following ways:a. when they need to clear out their docketsb. when parties are having a hard time playing both agreement and adversarial roles at

same time – the court can bring parties together for settlement conferencesc. judges can give estimation of strengths and weaknessesd. judges can act as authoratitve mediators

2. Problems with court involvement (controversial):a. courts should be resolving disputes based on meritsb. courts may be said to use coercive judicial power to force settlementsc. prejudice:

1. judge may be prejudiced against party that refuses to settle2. judge will be aware of weaknesses of case, might be biased

Settlement18

3. statutorily, this is not a big problem b/c magistrate presides over settlement negotiations

3. courts don’t review settlement b/c:a. too expensiveb. people should be accountable for own actions (autonomy)c. benefits lost if courts get involvedd. EXCEPTIONS:

1. class action suitsa. to make sure it benefits all and not just those at table

2. minorsa. can’t accurately assess their interests

E. Settlements affect future disputesF. Kalinauskas v. Wong p. 583

1. P wanted to depose Ms. Thomas who had signed a confidential settlement agreement for SH action against the same D (Caesars)

2. Court held Ms. Thomas could not discuss terms of settlement but she could disclose facts underlying her action

3. Analogous to “work product” protectiona. you can get at underlying factsb. actual details of agreement worked out by parties not available

4. Court’s justification = to avoid duplicate discoverya. don’t want parties to start from scratch in order to get relevant details from previous

caseb. court doesn’t invalidate entire settlement, only eliminates confidentiality term that

inhibits discovery1. clause in agreement that allows for courts to alter confidentiality clause2. if it didn’t include this, court would have likely assumed it was meant to be

included5. concerns that court addresses by allowing Ms. Thomas to be deposed:

a. ensures that next piece of legislation is efficient w/o duplicative discoveryb. general public policy interest in finding out whether Caesars discriminates against

womenc. preventing deposition would constitute “buying silence of a witness with settlement

agreement"6. confidentiality agreements only go so far

a. we don’t want people buying silence of future witnessesb. but this may undermine confidence in settling

G. Negotiating away Judgments1. Settlement arises after judgment b/c of appeal:

a. same concerns about costs and risks of loss exist at next level of process2. reasons for settling before appeal trial, rather than awaiting decision on appeal:

a. costs of litigationb. bluffing, important in settlement, no longer a factor after judgment

H. Vacatur1. Why parties want to vacate judgment:

a. D may not want to have public declaration of unlawful activity on booksb. Party may be afraid that rule of law set forth in case will be applied against it in

future1. vacated judgments don’t have precedential weight

2. Neary v. UC Davis – p. 589a. state case – didn’t set big precedentb. P won $7M in defamation casec. While an appeal was pending, P settled for $3M. In return, he agreed to dismiss

appeal w/o prejudice. As part of settlement, parties stipulate that CA should vacate trial court’s judgment

Settlement19

d. Court holds parties should be entitled to stipulate reversal unless there’s a showing of extraordinary circumstances

e. Dissent comes up with own rule – CA should only approve vacatur when judgment benefits neither the public at large nor third parties

f. Arguments in favor of post-judgment settlement1. settlement is good in that it increases judicial economy

a. avoids future expenses for parties and court resources2. It’s in fairness interest of parties – denying post-judgment settlement would

frustrate parties’ mutual desires to immediately end long running dispute3. Purpose of judiciary = provide a forum for peaceful resolution of disputes

g. Arguments against post-judgment settlement:1. vacatur will create disincentive for earlier settlement

a. if trying to ease cost of litigation to parties and drain on courts’ resources, court would want to reduce costs at trial court level. If parties wait until verdict has come in, they’ve incurred the cost of litigation and raised different settlement issues

2. diminishes respect given to judiciarya. Dissent’s argument in Neary – purpose of judiciary is to settle issues,

interpret and make law not just for parties involved but for others3. U.S. Bancorp Mortgage v. Bonner Mall -- p. 592

a. Parties settle after a dispute over “new value exception”. Settlement moots their case.

b. After settlement, Bancorp tried to get judgment vacated because “nve” affected their ability to foreclose1. decision on matter of law that has more impact that in just this case

c. Bonner’s business will rely on ongoing validity of “nve”d. Court held that mootness by reason of settlement doesn’t justify vacatur of prior

judgment1. there’s independent significance to judicial determination. Doesn’t exist solely

for partiese. only alternative is for Bancorp to go back to AC and have them “reconsider”

judgment1. might give process more integrity if court that issued the judgment, and only that

court, is allowed to give vacaturf. bigger stuff at stake – federal

4. Diffences between Bancorp and Nearya. In Bancorp, vacating judgment not part of settlement as in Nearyb. In Bancorp, hot, unresolved bankruptcy issue in dispute. In Neary, fairly

straightforward defamation case.c. Neary vacates judgment of a trial court whereas Bancorp was asked to vacate

judgment of an appellate court1. Appellate judgments have greater precedential significance than trial court

judgments, so SC might have been more reluctant to vacated. In Neary, both parties agreed to vacature, whereas in Bancorp, only loser wanted the

judgment vacated1. undermines autonomy of parties to settle argument.

e. perhaps only when issue applies to private parties, as in Neary, and where there isn’t a broader qst of law, it is OK to vacate judgment1. Bancorp court suggest that even if there were mutual agreement on this private

matter, court would refuse to vacatef. In Bancorp, party gave up right to appeal voluntarily, and that is what created

“mootness”1. this is different from cases where mootness arises unintentionally2. in this settlement agreement, but for action of loser, the case would not have

been moot (Bancorp instigated and wanted a post-verdict settlement b/c they lost)

Settlement20

3. If loser chooses not to press legal issue in higher court, that doesn’t give him option to challenge opinion (other than through appeal) – D shouldn’t get benefit of this circumnavigation

g. under Federal Rules, vacatur not allowed except under extraordinary circumstances1. under California Law (Neary), vacatur can be granted unless there are

extraordinary circumstances5. Rules:

a. when mootness caused by external factors, not by parties, it is appropriate to facate (thus future cases will be able to be heard all the way up)

b. when caused by unilateral action by winner, it is OK to vacate (i.e. winner decides and loser has no part)

c. if caused by unilateral action of lower or mutual act, its not OK to vacate(perhaps b/c precedent belongs to community)

I. Fee shifting and settlement1. Rule 68

a. If D offers to settle and P eventually wins less than that ammount, P may not collect costs and must pay D’s costs incurred after offer

b. If P should be entitled to attny’s fees by virtue of a fee-shiftin statute, costs affected by Rule 68 do include attny’s fees

c. Must be offered 10 days before trial begins. OR if liability has been determined at trial but amount isn’t must be served not less than 10 days prior to commencement of hearing to determine liability.

2. Separating Lawyer and Client:a. Encourages settlementb. Encourages litigation by poorer plaintiffsc. Evans v. Jeff p. 343

1. Court holds that Fees Act (allowing prevailing party to recover reasonable attny’s fees in certain civil rights actions) doesn’t prohibit settlements which include a condition that attny’s waive their fees

2. Attny in this case = legal aid attny == without money from this settlement, there’s less money available to serve needy clients

3. Strongest argument for amending Fees Act to prohibit fee waivers like this in settlements = discourages ethical lawyers from pursuit the litigation the Fees Act is trying to encourage b/c lawyers will refuse to take cases knowing they won’t be paid

4. Court says -- fee waivers are OK b/c its in the best interest of the clientJ. Why Settlements Fail:

1. parties may be overly optimistic2. bilateral monopoly problems – both parties may be bluffing as a part of strategy

negotiationK. Settlement can occur at any time from grievance to after trial

Settlement21

V. Prelim Relief (Provisional Remedies)A. Provisional remedies = relief pending final adjudication of suitB. Can occur any time from complaint to trialC. As practical matter, prelim often ends caseD. Party feels like he can’t wait for trial for reliefE. Problems:

1. often based on incomplete info2. court often asked to act without benefit of adversarial exchange that would accompany

trialF. Preliminary Injunction – Rule 65

1. Definition:a. Court order directing a party to avoid certain conduct or perform specific acts before

court decides on merits of case.b. Consolidation of Prelim Injunct hearing with the trial on merits: Rule 65(a)

1. even if no consolidation, evidence received on application for PI, if admissable, becomes part of record and need not be repeated at trial

c. 65(a)(1) no prelim injunction issued without notice to adverse party2. Temporary Restraining Order: Rule 65(b)

a. Sought by a party when situation is so urgent that an injunction must be granted immediately before opposing party can even be heard

b. Time limit for TRO is 10 days with possibility of 10 day extensionc. Can be ex parte – granted without written or oral notice to opposing party if:

1. clearly appears that immediate and irreparable injury, loss, or damages will be suffered by applicant before adverse party can be notified -- affidavit

2. applicant’s attny certifies efforts to give notice to opposing party and gives reasons why notice shouldn’t be required

d. If TRO granted without notice, PI hearing will be set for earliest possible time and moving party shall proceed with application for PI

e. Types of TRO’s:1. replevin – court order that requires debtor to surrender goods that creditor

asserts have not been paid for2. attachment – seizure of property3. garnishment – asking a third party not to pay D money due to him b/c P has a

claim in it3. Security – Rule 65( c)

a. party seeking TRO or PI must put down security to protect adverse party against unwarranted injunction

b. parties must weigh strength of their cases in light of anticipated amount of security1. courts actually calculate amount2. built-in “double calculation” provides check on unfounded claims for PI

c. problem – if one reason for seeking injunctive relief in the first place is difficulty of calculating damages, how do you decide amount of security?

4. Inglis v. ITT Continental Baking p. 349a. P sought PI forcing D, its competitors to raise bread pricesb. Lower court applied 4 part test to determine whether to grant application:

1. Normal Testa. P will suffer irreparable injury if injunctive relief not grantedb. P will probably prevail on meritsc. In balancing equities, the Ds will not be harmed more than P is helped by

injunctiond. Granting injunction is in public interest

2. Alternative Test this court used:a. alternative test is court’s four pt. Test – the court of appeals says if harm is

sufficiently serious, then you only need fair chance (rather than likelihood) of success.1. courts less likely to use alternative if injunction is the last step

Prelim Relief22

5. PIs can be issued during a trial if there’s a huge gap between time the trial begins and time judgment will be handed down

a. often PIs when used as a method for interim relief, turn into last step b/c:1. they show how court feels about case (might want to go directly to settlement)2. they change parties’ positions such that it might not be valid to continue with a

trial any longerG. Provisional Remedies and Due Process

1. Rule 64: State law applies to actions involving seizure of property2. All State procedures for seizure are subject to Due Process Clause (14th Amendment)3. Fuentes v. Shevin p. 354

a. FL law allowed creditor to seize goods without a prior hearing or notice to debtor1. creditor had to post bond double value of property to be seized2. creditor had to assert to clerk “in conclusory fashion” that it was entitled to writ

of replevina. court order that requires debtor to surrender goods, that creditor asserts they

haven’t paid for, to court or creditor3. clerk is empowered to issue a writ summarily

b. PA law required a debtor to initiate a lawsuit himself if he wanted a post-seizure hearing

c. Violation of Due Process Clause b/c:1. deprivation of property – SC says there’s a property interest even if P doesn’t

own goods outright2. under color of law (state action) the involvement of sheriff and clerk constitutes

state action. If they weren’t involved, P wouldn’t have a claim in court under due process

3. without due process- there was no hearing at which P could protest before her property was taken. The SC doesn’t discuss what type of a hearing it should be though.

d. SC holds that when State authorizes its agents to seize property in one person’s possession upon application for such action by another party, there must be an opportunity for deprived party to be heard before deprivation of property takes place

e. It is not appropriate/sufficient to rely on creditor’s assessment of risk (as reflected in security posting)1. there’s a power disparity between large corporation and poor person2. even if corporation’s claim is weak, they might seize the property anyway,

thinking that the other party lacks the resources to bring an actionf. Cost benefit analysis of seizures

1. Like Greene, test for what kind of hearing is dependent on the cost, reliability, and magnitude of interests at stake

2. Cost of increased process < (chance of error)(interest of party with potentially erroneous deprivation)

3. Corporation’s oblig to post a bond does something to help reduce error rate4. Not clear how much more should be spent on improved process to reduce error

rate further5. Problem – increased process can be costly. Probability of error is likely to

remain the same, although cost will go up with additional hearing.a. these costs might be shifted to the customer, the very group we’re trying to

protect with improved processg. creditors can still seize property without a hearing in some circumstances:

1. in extraordinary or unusual circumstances2. public interest3. where it’s likely property will be concealed or destroyed if debtor is alerted to

seizure through a hearingh. Are Rule 65 TROs in trouble b/c of this ruling?

1. ex parte hearing = more reliable than none at all2. Fuentes particularly focuses on parties being heard AT ALL at a trial

Prelim Relief23

3. TROs involve timing issues – you have an ex parte hearing and will have a PI hearing soon after but the TRO is necessary in a short amount of time. It doesn’t last that long and costs of TRO are measured by potential harm to a moving party.

H. Timeline (11/4)1. summary judgment doesn’t need trial2. settlement doesn’t want trial3. prelim. relief can’t wait for trial

C. look to case law for standards of prelim injunc. Rules are just procedures.

Prelim Relief24

VI. Summary JudgmentA. Purpose:

1. primary way under notice pleading regime to prevent factually insufficient claims and defenses from going to triala. Looks at proof. You have to fight it by pointing to something concrete.b. Very common for D. to win b/c P needs to show every element while D need only

defeat single element of P’s claim.c. P has burden of proof for most elements.d. Proof that’s adequate for P to avoid summary judgment against her is frequently not

enough to get summary judgment for her.e. If no one has evidence, D will prevail (b/c P must show POE)f. In some cases, P has proof that’s not conclusive in its support for it’s side – that’s not

enough, has to be stronger than D’s caseg. If genuine issue of fact, should go to trialh. Shouldn’t be who could get there faster

2. To allow early resolution of cases in which P meets burden of pleading the elements of a compensable claim but can’t prove one or more of these elements (b/c if you can’t prove one element, you have no claim):a. avoids delay and expense of going to trialb. BUT – SJ can lead to additional expenses in discovery b/c parties want to get as

much info as they can in order to avoid SJ3. Avoids potentially irrational decision making by jury

B. Timing – Rules 56(a) and (b)1. For P: may be filed any time after 20 days from commencement of action or after service

of SJ motion by opposing partya. this period matches 20 day period given to file an answerb. P can file SJ before complaint is served (has 120 days between filing of complaint

and service)1. period of time for riling SJ tied to filing of complaint, not service on D.

2. For D: may file any time although SJ filings usually don’t occur on either side until after discovery

C. Legal Standard – FRCP 56(c)1. motion shall be filed at least 10 days before time fixed for hearing

a. hearing is not on merits of action – no live testimonyb. hearing explores whether there’s a genuine issue of fact

2. SJ shall be rendered if pleadings, fruits of discovery and affidavits show that there is “no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law”a. SJ, interlocutory, may be given on issue of liability although there’s a genuine issue

as to amount of damages3. SJ appropriate if no reasonable jury could decide in favor of non-moving party (some

times) – some courts use thisa. question of “reasonable jury” left to discretion of judgeb. If reasonable jury could go either way, SJ is inappropriate

4. If granted, appealable. If denied, not appealable until after trial.D. Form of Affidavits, further testimony, defense required – FRCP 56(e)

1. Affidavits – should be made on personal knowledge2. Must set forth facts as would be admissible in evidence

a. Affidavits don’t have to be admissible themselves, but they must show that party has access to admissible evidence

3. must be signed and sworn to statementsE. Visser v. Packet Engineering Associates p.621

1. age discrimination suit – P fired months before pension came to terma. court granted SJ to employer even though P had certain facts on his side (i.e.

pension, replaced by younger employee, etc…)

Summary Judgment25

b. court sent msg that when burden is on P to prove a material fact, even some relevant info may not be enough to survive SJ motion

c. given P’s burden of persuasion (POE???), he must submit more info.1. reasonable jury standard – they’re not going to believe its because of age2. burden shifts because mixed motive case – D. has to show he would have been

fired anyway but P. has to show this is one of the reasons.I. Defense Required:

1. If movant shows that there’s no material issue of fact, opposing party can’t avoid SJ merely by repeating his pleadings’ denial of allegations. Then he must set forth specific facts showing there’s a genuine issue for trial. (FRCP 56(e))But the party opposing is not required to make an evidentiary showing unless movant clearly demonstrates the lack of a triable issue of fact (non-movant receive benefit of doubt)

J. Celotex Corp. v. Catrett p. 6161. P accused Celotext of distributing asbestos containing products that contributed to her

husband’s death2. Celotex moved for SJ on grounds that P failed to produce evidence that a Celotex was

proximate cause of her husband’s death3. Court held that in an unopposed SJ motion, burden on moving party is merely to “show”

or to point out to court that there’s an absence of evidence to support an essential element of non-moving party’s claima. moving party (celotex) does not, therefore, have to affirmatively prove they’re not

responsibleb. merely have to point to an absence of clear evidence – much easier standardc. P. has burdend. Dissent called for a more exhaustive account

4. Big deal case – set forth that D. doesn’t have to negate claim. Summary judgment now more popular

K. Affidavits unavailable – FRCP 56(f)1. If adverse party’s affidavits show party can’t, for reasons stated, present by affidavit

essential facts to justify party'’ opposition, court may order a continuance, etc.. so party may obtain necessary materials

L. Affidavits in bad faith – FRCP 56(g)1. If the court is satisfied that affidavits are presented in bad faith, or solely to delay, court

can order party to pay reasonable expenses including attny’s fees and any offending party or attny may be held in contempt

M. Green v. Lindsey (packet – first case – see earlier)1. case was presented on cross-motions for SJ2. tenants would argue that there’s no genuine issue of material fact – posting simply was

unreliable3. sheriff’s response – even assuming we agree on reliability of posting, it doesn’t matter

b/c posting doesn’t violate Due Process as a matter of law4. SC could therefore deny sheriff’s SJ motion b/c 70 year old law no longer applied and

could deny tenants SJ motion b/c facts were in disputeN. Bottom Line

1. point of SJ is to avoid trial but parties have a constitutional right to a jury trial and the general interest lays in getting to underlying facts in a case

2. qst. of whether SJ is appropriate is therefore couched in terms of whether “reasonable trier of facts” would find that there’s no issue about a material fact

O. Concerns about summary judgment1. might get wrong decision2. deciding on paper rather than in person

P. Comparison of SJ with 12(b)(6)1. similarities:

a. both ask a court to get ride of a case based on substantive lawb. both point to lack of support in record for a party’s claim

2. differences:

Summary Judgment26

a. SJ “pierces the pleading” by looking at actual proof behind pleading1. even if it appears from pleadings that parties are in dispute on some material

issue of fact, SJ motion may be granted if movant can show that there’s no issue of fact presented by pleadings (it only appears that way)

2. 12(b)(6), in contrast, assumes that allegations put forward in complaint are all true and is granted when there’s a flaw in pleading (not a flaw in evidence, as in SJ)a. parties can plead things vaguely enough in a complaint, under notice

pleading regime, that it will not become clear until later that there’s no issue of a material fact. Case can then be dismissed by SJ.

b. In SJ motions, court issues a judgment on merits (res judicata and collateral estoppel implications???)

1. in 12(b)(6), court dismisses complaint w/o making decision on underlying meritsa. in addition, judge may allow for amendment

c. SJ can be brought by either party (although it’s easier for D to prevail) but 12(b)(6) only brought by De. SJ can resolve portions of complaint but 12(b)(6) is all or nothingf. Affidavits and fruits of discovery must be attached to SJ motion as additional support

for motion1. 12(b)(6) stands alone – no additional info is attached b/c it only looks at “the

face” of the complaint

Summary Judgment27

VII. Jury – Trier of factA. Background

1. Fact-finding before juries (trial by ordeal, etc…)2. First juries self-informing and chosen for being experts3. Rest of system merged law and equity but not jury part4. Purpose = resolve disputes of fact

a. determine factsb. evaluate legal consequence of facts according to judge’s instructionsc. present the result of deliberation in a verdict

5. FRCP 39 – trial shall be by jury unless parties consent or court finds right to jury trial doesn’t exist

B. Why have?1. provide people’s safeguard. Basic piece of democratic system2. thought to be more sympathetic to rural over urban, domestic over foreign3. might protect against political whims4. 7th Amendment

C. Jury good1. group decision making2. range of perspectives3. operates in black box (neutral)

D. Jury bad1. single decision maker may be better—jury may be indecisive and have a deliberation

problem2. expertise problem3. expensive to get juries. Jury trial also more formal and expensive4. black box5. jury nullification

E. Who gets a jury?1. 7th amendment – “In suits at common law, where the value in controversy shall exceed

twenty dollars, the right of trail by jury shall be preserved”a. FRCP 38(a) right of trial by jury as declared by 7th amendment shall be preservedb. FRCP 38(b) any party may demand a trial by jury of any issue triable of right by a

jury by serving upon other parties a demand at any time after commencement of action and not later than 10 days after service of last pleading and then filing the demand.

c. Failure to serve and file a demand constitutes a waiver by party of trial by jury (38(d))

2. If Court of Chancery (equitable claims), no jurya. injunctive relief, specific performance, multi-party, rescission, accountings,

procedural devices such as derivative suits, class actions, bills of peace, and bills of interpleader, also fraud, mortgage, trusts

3. How do you decide?4. General Rule: try to match modern cases to those in equity and CL courts in 1791.

Helpful guideline: when relief sought is damages, there’s a right to jury trial. When injunctive relief is sought, there’s no right to jury trial.a. problem is with modern claims, where its not easy to match the modern claim to the 1791 claim, particularly if it’s a new type of case, or one brought under a new statute.

5. any kinds of relief Common Law allowed for as of 1791 – ex = damages, straightforward suitsa. mismatches between 1791 and now

1. changes in forumsa. administrative agency

1. Reasons to retain jury right in an administrative contexta. Area used to be governed by jury trial & still have a right to be

tried by peers

Jury28

b. less biased b/c not “insiders” – govt. actor is prosecutory, govt insider is judge, this is exactly where there should be regulation and outside eyes, to offset the strong govt influence

c. ALJs have political considerationsd. Congress shouldn’t be able to do indirectly what it can’t do

directly (limit the scope of jury trial under 7th amendment) 2. Arguments against juries in these situations:

a. Appeals of these types go straight to Court of Appeals which affords protection against an agency biase

b. expertise problem – we want expertise in trial, repeat adjudicators, and consistency – all things that will be lost if the case is tried by jury.

c. take longer and whole part of ALJ = efficiencyd. this is not a “private” dispute: involves interests of government as

sovereign. Not analogous to historical view of right to trial by jury in cases that were based on private issues

3. Atlas Roofing v. OSHA p. 663a. – no right to a jury trialb. 7th Amendment not a bar to procedural innovation

1. Congress can create administrative agencies and assign them matters that might otherwise have been heard by a jury

c. Supreme Court holds that when public rights are being litigated, no right to trial by jury exists1. “public” case – where the government acts in its sovereign capacity

4. Granfinanciera v. Norberg p. 664a. bankruptcy courts operate without juries. Company wants jury

trial.b. Historical analogy is fraudulent conveyance – jury trial in 1791 –

so does establishing another court system (admin) get rid of that right?

c. Problem with jury, according to Trustee:1. will slow down process of dissolving assets and clearing the

books.2. This is an administrative proceeding, which normally doesn’t

have a trial by jury3. Loss of expertise if tried by a jury

d. benefit from having a jury1. fraudulent conveyance comes down to intent which involves

classic questions of witness credibilitye. Supreme Court holds that although it might be less

efficient/effective, that does not mean that it is possible to circumvent the 7th Amendment right to trial by jury

f. Bottom line:1. if case is brought before an administrative agency, created by

Congress, there’s no need for jury2. if “court” of any kind is involved, then the jury trial should be

available.a. this is not true when the case concerns the interests of he

government in its capacity as sovereignb. that’s why there was a right to trial by jury in

Granfinanciera but not Atlas -–the former was more of a private disupte and the latter was more public (govt as sovereign)

2. changes in procedurea. what if you have overlapping issues from merger of law and equity?

Jury29

b. Beacon Theatres v. Westover (westover = lower court judge) p. 6671. Facts

a. Fox wants injunction to keep Beacon from bringing anti-trust claim

b. Fox also asks for declaratory judgment ( a binding decision without coercive or punitive effects – all it says is “I’m not liable) that “grant of clearance” is reasonable (fact that he’s the only one showing movies is OK)

c. Beacon counterclaims against Fox for treble damanges and states anti-trust and demands jury trial

d. DC says complaint for declaratory is equitable so no jurye. CA refuses to upset DCf. SC says DC’s finding that they presented basically equitable issues

doesn’t have any support under Rule 57. Holds that right to a trial by jury must be determined issue by issue (not case by case) and where there are both legal and equitable claims, trial judges must ordinarily hear the legal claims first (jury before judge).1. preserves parties’ rt to jury trial2. only in cases where the party asserting equitable claims would

be irreparably harmed by a delay in these claims until after the hearing of a legal claim, could the court hear the equitable claim first

g. (This case is against the judge b/c it’s basically a suit to get him to give them a jury trial)

h. writ of mandamus case2. rule = where cases mixes equity and law, try jury issues first and that

will bind judge3. you don’t lose anything by merging claims4. hard b/c injunctive relief is sought and that is traditionally equity5. Declaratory judgment is neither legal nor equitable (if it were, people

would use it to destroy/create people’s right to a jury trial). Instead, underlying issues control whether there is a right to a jury trial in a declaratory judgment suit.

6. If Constitution provides for jury trial, right can’t be taken away but can be added to7. No comparable right for judge trial8. Chauffers, Teamsters and Helpers v. Terry p. 652

a. Truckers sue union, alleging violating of duty of fair representation and violation of collective bargaining agreement (didn’t process 3rd grievance)

b. No historical match for collective bargaining in 1791c. Violation of duty of fair representation resembles breach of fiduciary duty (b/c the

union was fulfilling a representative role and the employees didn’t have direct control over what the union did on its behalf) which was equitable in 18th century England.

d. BUT this doesn’t end inquiry. The court breaks the claim into parts:1. violating of collective action bargain (comparable to breach of contract – legal

issue) (CL)2. breach of duty of representation (equitable)3. AND: remedy = back pay (compensation – clearly common law)

e. remedy is more important than claim b/c less likely to be stretching (remedy hasn’t changed much since 1791)

f. claim determination uses more court resourcesg. Brennan concurrence says why bother looking at claimh. Stevens wants to go in more functional directions – what kind of cases do juries do

well? F. Jury Composition

1. Jury can be as small as 6 no more than 12 in federal system (FRCP 48)

Jury30

2. Needs to be unanimous in Federal system -- FRCP 483. Voir dire is the first opportunity for lawyers to begin teaching jury about the case

G. Jury Selection1. Who is on juries?

a. fair cross-section of community (28 USC 1861)1. you don’t just use voter registration lists

b. what’s appropriate range of diversity1. you can omit some groups – convicted felons2. look for differences in perspective

a. race and gender is problemc. right to be in jury pool, not to be on jury. – all citizens should have opportunity to be

considered for service and shall have obligation to serve as jurors when summoned (28 USC 1861). 1. not excluded from jury pool on basis of race, etc… 28 USC 1862

2. How juries are selected – FRCP 47a. 28 USC 1863 – each U.S. district court shall devise and place into operation a

written plan for random jury selection1. people can challenge compliance with selection procedures 28 USC 1867

b. voir dire (qsts.) – combo of judge/lawyer. Judges participate much more in federal system

c. exclusions1. for cause – when a juror is dismissed due to bias, interest, or prejudice. –

lawyers requests. Always judge’s decision. Great deal of discretion. Used sparingly (FRCP 47(c))

2. peremptory (28 USC 1870) – in civil case each side allowed 3 so each side doesn’t get a lot of say regarding what juries look like.a. why have?

1. exclude extremes2. goal = fair jury3. verdict = easier to swallow b/c parties may feel like they’re choosing

jury4. may have alienated a juror during questioning5. intuition for hard to justify

b. why not?1. these exclusions play into litigation being game of manipulation2. discriminatory and may conflict with idea of cross-sectional jury

c. Batson v.Kentucky p. 6811. used to be able to use peremptories without justification but now b/c

Equal Protection Clause2. party bringing claim of exclusion must show prima facie evidence. D.

has burden of showing race-neutral justification.3. Batson is for criminal cases4. Batson violated right of D. (black) and juror5. Powers v. Ohio p. 682

a. violated right of D. (white) and jurorb. criminal D, regardless of his race, may object to a prosecutor’s

race-based exclusion of jurorsd. Edmonson v. Leesville Concrete Co. p. 681 (truck rolling backwards on P)

1. Issue: did P’s use of peremptory challenges violate jurors’ Constitutional right to equal protection?a. Supreme Court uses 5th Amendment (implied equal protection clause) in their argument. Due Process right (on a federal level) is interpreted by SC to be anti-discriminatory right.

2. civil, not crim, case so P. is no longer prosecutor, a state actor3. private parties acting on behalf of government selecting jury (in

previous two prosecutor was state action)

Jury31

4. SC finds jury selection is a state action b/c:a. calling in of jury = state functionb. use of peremptory challenge: jury selection is a government

process, a piece of which is delegated to the parties at trial to be used in the construct of a govt. proceeding

c. it’s in our building5. SC holds that race-based peremptory challenges violate the equal

protection rights of the dismissed jurors6. Here its D. offering right, not P.

a. Scalia said can be used against minority defendants7. Litigants can’t use peremptories to get a more diverse jury8. Third party standing and government action – can Edmonson sue on

behalf of jurors claiming to be protecting their const rights?a. basic rule is that parties can assert violations of their own rights.

Here, SC gives the three factors to consider in deciding whether a litigant may raise a claim on behalf of third parties:1. Concrete injury to litigant

a. D has suffered an injury that gives him an interest in pursuing the claim of the violation of the jurors’ rights to the fullest extent possible

2. Close relation to partya. hardest to show: shared interest between litigant and

juror3. Inability of third party to assert their rights themselves

a. jurors are not likely to bring their own separate claim even if their rights were violated

9. Bottom line of Edmunsona. must show prima facie case of race-based exclusionsb. the burden is on the dismissing party to give a racially-neutral

justification for dismissalc. the courts are to look at pattern of race-based exclusions

1. However, it’s hard to show or infer a pattern when there are only 3 peremptories, as there are in civil cases

10. Dissent – disagree with state action pointsa. every time a challenge is made, mini-trial will ensue on whether

the peremptory was race-basedb. good lawyers will be able to come up with better pretexts to avoid

objections that peremptories are being made on race-based grounds1. this would favor wealthier clients who can afford better

lawyers2. however, this objection could be made about almost any rule

11. JEB p. 686 extended this principle to gender (paternity action)a. For example, if you’re looking for a group of shoppers on a jury,

it’s OK to ask questions about shopping and up with an all female jury

b. It’s not OK if you exclude all men on the basis that it’s common knowledge that all women shop.

Jury32

VIII. Trial A. Ways Judges Control Juries

1. voir dire process2. control of evidence3. instructions to jury – Rule 51 – no party may assign as error giving of instructions unless

party objects before jury retires to consider verdict4. special verdicts – Rule 49(a) – restricts power of jury by requiring a special written

finding on each issue of fact, rather than issuing a general verdict5. General verdict with Interrogatories – Rule 49(b) – judge may require a general verdict

to be supported by interrogatories as to specific findings of fact6. judge’s ability to comment on evidence7. limited instructions of issues

B. Controlling Pre-verdict1. judgment as a matter of law (directed verdict)

a. stops the case from going to the jury and determines the outcome as a matter of lawb. when a party has been fully heard on an issue and there is no legally sufficient basis

for a reasonable jury to find for the party on that issue, the court may determine the issue against that party and may grant a motion for JAML against the party with respect to a claim or defense that can’t be maintained under law without a favorable finding on the issue above. FRCP 50

c. what could a rational jury use? (JML and SJ both use this)d. this is only in jury cases, otherwise Rule 52e. Timing:

1. can be brought up any time before submission of the case to the jury FRCP 50(a)(2)

2. can only be brought up after close of evidence on that issue (Rule 50(a))3. either party may move for JAML after the other side has rested

a. in order to file motion for JAML (JNOV), the moving party must have moved for a JAML(DV) at conclusion of all evidence

f. Rules different courts use re: how much evidence to look at (burden of prod) to see if JAML (DV) or (JNOV) is justified:1. favorable evidence – some courts just look at P’s evidence. If this isn’t enough

to cross x-line, it won’t go to jury. Is evidence in favor of party (who wants jury trial) enough, by itself, to send case to jury?

2. qualified favorable (what federal uses) – looks at non-moving party’se evidence in a favorable light and unimpeached, uncontradicted evidence of opposing party and examines

3. all evidence (but with all reasonable inferences most favorable to party opposed to motion) – starts to look like a new trial standarda. gives trial judge power to resolve conflicts with direct testimony and

determine whether a jury could reasonably believe or disbelieve witnessesb. therefore, a judge could properly grant a JAML for D if he has

overwhelming evidence and the jury couldn’t reasonably believe P’s testimony

g. difference from SJ:1. JAML is a judgment on what evidence actually is during trial but SJ is a

judgment on the representation of what evidence is likely to be2. Similar standards for granting:

a. SJ – no genuine issue of material facts existb. DV – no reasonable jury could find any other wayc. JNOV – no reasonable jury could decide as they did

h. Reid v. San Pedro, LA, SLC RR p. 7041. Cow is hit by train near a gate in fence along tracks. Fence is broken a mile

away.2. P has to show (burden of production) that it was more likely than not (burden of

persuasion = poe) that the cow went through the broken fence

Trial33

3. directed verdict – didn’t pass rational jury testa. a jury couldn’t have found it was more likely cow went through hole in

fence vs. open gateb. didn’t meet burden

i. Pennsylvania RR v. Chamberlain p. 7201. P’s evidence could support either one of two inconsistent inferences: either

crash occurred or it didn’t2. D’s evidence supports inference that crash didn’t occur3. P’s evidence isn’t strong enough on its own for a reasonable jury to infer that

crash occurred – problem with P’s evidence supporting either of two inferences.4. if evidence is impeachable or contradicted, it goes to jury5. if one side has evidence that can be read two ways and other side upholds one of

the inferences, the court thought not a contradiction of fact so doesn’t have to go to jury

j. use more sparingly b/c it takes away from juryC. Post Verdict Control

1. JNOVa. no legally sufficient evidentiary basis for a reasonable jury to find for party =

standard, same as preverdict judgment as a matter of law. Results in immediate entry of judgment in favor of the loser of the verdict.

b. Reasons why we’d rather have this than directed verdict1. appellate court can reinstate jury verdict2. juries tend to be rational3. judges would rather juries be the ones to give bad news

c. you have to move for directed verdict at the close of all the evidence if you want JNOV later (Rule 50(b))1. this way judge can give other party chance to supplement their case

d. motion must be renewed within 10 days after entry of judgment.e. Motion may alternately request a new trial or join a motion for a new trial under

Rule 59f. can’t appeal b/c you think juries’ verdict is absurd – only as a matter of lawg. appellate standard for both JML = de novoh. 59(c) – if renewed motion is granted, court shall also rule on motion for new trial

2. New Trial – Rule 59a. may be granted to all or any of parties on all or any of issuesb. Grounds for Granting new trial

1. Procedural errors (as long as they caused harm)a. for example, admission or exclusion of evidenceb. judges can also move for JNOV

2. Decision errorsa. juries are idiots – verdict is unjustifiable (jury may have misunderstood or

ignored instructions)b. against weight of evidence

1. doesn’t make a winner out of a loser. Merely begins contest again.1. Lind v. Schenley Industries p. 733

a. judge abused legal discretion by granting JNOV and alternately new trial. This court said he substituted his verdict for that of jury when he said it went against the great weight of evidence. He tried to push appellate standard to de novo.

b. Court held that when a jury trial is on a familiar and simple matter and the qst is one of credibility, the judge intrudes on fact-finding province of jury by granting new trial

c. Dissent suggests that if it is “reasonable” for trial court judge to find that the verdict was against the weight of the evidence and to order a new trial, then the trial decision should stand.

3. Other reasons

Trial34

a. misconduct (lawyer’s or jurors)b. new evidencec. surprise

3. standard for appellate review of new trial is abuse of discretion whereas for judgment as matter of law, it’s de novo appeal – no deference to trial court

b. Timing:1. Renewed motion for JAML (JNOV) may be joined in motion for new trial under

Rule 59 within 10 days after judgment has been entered. (FRCP 50(b))a. if JNOV granted for one party, other party can move for new trial (50(c)(2))

within 10 days of entry of judgment2. Time for motion: (FRCP 59(b))-- any motion for a new trial shall be filed no

later than 10 days after entry of judgment3. Time for serving affidavits – (FRCP 59(c)) –

a. when motion for new trial is based on affidavits, they shall be filed with motion

b. the opposing party has 10 days after service to file opposing affidavitsc. On Court’s Initiative; Notice; Specifying Grounds (Rule 59(d))

1. No later than 10 days after judgment, court may order a new trial for any reason for which it would grant one on a party’s motion

2. After giving parties notice and opportunity to be heard, the court may grant a motion for a new trial for a reason not stated in the motion

3. When new trial is on its own initiative or for a reason not stated in the motion, the court shall specify grounds in its order.

a. differs from JAML (JNOV) which must be made through a motion of one of parties

b. judge has more discretion to grant a motion for new trial b/c this motion runs less or a risk of abridging 7th amendment than JAML(DV) does

4. Judge may grant a trial b/c of what he concludes were his own errors during triald. Granting of JAML (DV) distinguished from new trial:

1. JAML (DV) is only supposed to be ordered when there are no direct conflicts in evidence but NT consideration can look at and assess the relative strength of evidence

e. Four possibilities when JAML is joined with new trial motion1. Both motions are denied – when trial court denies both motions, AC may order

either JAML or new triala. AC has more latitude to grant either JAML or new trial when verdict loser

asserts error of law2. JAML granted, new trial conditionally denied – verdict winner can appeal. AC

can reinstate original verdict or order a new trial3. JAML granted, new trial conditionally granted – verdict winner may appeal.4. JAML denied, new trial granted – no final judgment so appeal may not be

heard until new trial has been completeda. if judgment after 2nd trial goes against the original verdict winner, the

original verdict winner may appeal the grant of a new trialb. in general, courts are reluctant to overturn trial judge’s new trial decisions

but will more often overturn his JAML rulingsf. appeals granting new trial judgments can’t be appealed

1. only final judgments are subject to appeal and new trial isn’t final2. in theory, nothing prevents endless repetition of new trials but parties usually

settle before this happens (litigation costs)3. If P wins the first trial but new trial is granted and P loses 2nd time, P can appeal

new trial that was granted and say that there never should have been a 2nd trial (this is true even if second trial conducted perfectly)

4. Some state courts allow interlocutory appeals of new trial decisions but fed courts don’t

5. Courts may order a new trial on only one issue, for example, damages

Trial35

a. if damage award is obscenely high, decision may have been irrationalb. however, there may be an interconnection between liability and damagesc. juries may base their award of damages on certainty of liability

g. if new trial is denied, you can appeal (appealing both judgment granted and denied new trial)

h. if you have JML and new trial together, if appeal on one is raised, court looks at both (seen as a package).

3. Standards of appellate review of new trial and JAML (JNOV) decisions by a lower courta. de novo review:

1. JAML are reviewed de novo2. Ex = was the jury instruction proper?

b. abuse of discretion:1. here the court reviews range of trial court’s discretion2. new trials are reviewed under this standard3. example = “was imposition of rule 11 sanctions appropriate?”

c. conditional ruling1. JAML (JNOV) motion may be joined with a motion for a new trial under 50(b)2. If trial judge grants JAML (JNOV) motion, he must also rule conditionally on

trial motion4. CA can order JNOV itself if case is appealed – at that point if opposing party felt original trial was flawed but he didn’t need to bring it up earlier b/c the verdict used to be in his favor, under 50(d) he can raise this argument at appeal stage

5. Writ of Mandamusa. directs district court’s behaviorb. only way to appeal new trialc. used to straighten out immediate qsts arising during trial, when immediate appeal is

not availabled. generally not used except when challenging granting or denial of a jury trial as in

Beacon Theatere. obtain it in original court that issues the writf. not actually an appeal so it doesn’t challenge authority of DCg. a lot of people find it tempting to use against interlocutory but courts don’t like to do

it – only exceptional circumstances amounting to judicial usurpation of power 6. Conditional

a. partial retrial – new trial limited to damages1. problem = can’t be sure determination of one tainted other

b. Remitturer1. judge orders new trial unless winner agrees to reduce damages2. not appealable – choice is between accepting remittitur or preparing for a new

trial.3. relates back to common law so constitutional4. standards:

a. courts generally use the “shocks the conscience” test when deciding whether it is appropriate

b. court has three possibilities to which it can reduce the amount:1. highest reasonable amount2. reasonable amount3. lowest reasonable amount

5. additur makes an award no jury ever made but remitturer just adjusts it so SC said remitturer doesn’t violate 7th Amend

c. Additur1. judge orders new trial unless losing party agrees to increase damages2. can’t be done in federal court according to SC

d. You can make all post-verdict motions in one thingD. Burdens of Pleading, Persuasion, Production and JML

1. Burden of Pleading

Trial36

a. P bears burden of pleading elements in support of his claim1. If P fails to fulfill burden, the claim can be dismissed under 12(b)(6)

b. D bears the burden of pleading affirmative defenses1. If D fails to fulfill his burden, he waives right to affirmative defense

c. Failure to plead a necessary element or affirmative defense can be fixed through an amendment.

2. Burdens of Persuasion:a. defines extent to which trier of fact must be convinced of a proposition in order to

render a verdict for the party who bears the burden1. in civil cases it is the “preponderance of the evidence” or “more likely than not”2. in criminal cases it is “beyond reasonable doubt”

b. party with burden has to show that their case is more likely, more probably – if it looks from the evidence that either side could be right, the party with the burden of persuasion has lost

3. Burdens of Productiona. who bears the burden of production in a civil case often matters

1. requires a party to “produce”, to find and present the evidence in the first placeb. burden of production for P is relevant to the question of whether or not case will go

to jury1. has P produced enough evidence that, given P’s burden of persuasion, a

reasonable jury could find in his favor?2. Note – link between burden of production and persuasion

a. if no evidence is produced on either side, P has failed both production and persuasion

b. if there’s lots of evidence on both sides, P has met burden of production but failed persuasion

3. different parties may have burden of production on different issuesa. in negligence case – P has burden of production of D’s negligent behaviorb. D has burden production as to facts material to her defense of

Trial37

IX. AppealsA. General

1. everyone has right to appeal once (federal system). SC appeal is discretionary.a. Why discretionary?

1. deference to trial court expertise (CA constrained by record and doesn’t hear live testimony). Want to inspire confidence in trial court judges.a. counter-arguments:

1. CA only focuses on narrow issue so it may in fact be in a better position than trial court to reach decision

2. Easier to determine when a witness is lying from transcript than it is from live testimony – rebuts assertion that trial judge is in a better position than CA to assess credibility of witness

2. resource issue – we don’t have enough3. would lead to incentive to be sloppy first time

2. only from final decisions – 28 USC 12913. judgment must be adverse to appeal. “adverse” = judgment granting relief different than

what was required4. now that discovery and pretrial processes are such big parts, the final judgment rule

doesn’t just defer but eliminates some appellate reviews5. mootness – relief no longer possible or needed so you can no longer appeal. Classic

exception = capable of repetition6. time limits:

a. within 30 days for typical appeal and 60 for appeal involving USb. this is critical b/c time limits are jurisdictional – i.e. CA has no jurisdiction to hear

appeal if it is late1. But DC can let trial judge extend time to party who didn’t receive notice of

judgment in question if no prejudice to other parties resultsc. filing too early used to be a problem but now if finality is only waiting for post-trial

motion, it is held in abeyanced. Rule 58 – this is why they try to make moment of judgment clear – “set forth on a

separate document”B. Distinction Between Review of Questions of Law and Questions of Fact

1. Distinction:a. trial court conclusions of law are not entitled to any deference and are reviewed de novo by CA.b. trial court findings of fact can be overturned only if “clearly erroneous”

1. if no jury, review is clearly erroneous with respect to facts2. if jury, review is in the absence of substantial evidence with respect to facts

2. Why is there this distinction?a. law translates to paper much more easily than factsb. we care about having universally articulated principles of law but not of facts

3. Findings of facts – Rule 52(a)a. in all trials without jury (or with an advisory jury), the court “shall find the facts

specially and state separately its conclusions of law thereon”b. if loser of non-jury trial appeals, CA will generally accept trial judge’s finding of fact

(they’ll be set aside only if “clearly erroneous”)C. Review of credibility determinations:

1. CA gives deference to trial court’s judgment of credibility2. Clearly erroneous standard usually applies just to credibility determinations

a. court can usually exercise de novo review of other documents and D. Aetna v. Cunningham (packet p. 32) – (adversity example)

1. Aetna has two separate claims against D – contract claim and fraud claim2. D was found liable on contract claim but not on fraud claim. P appealed even though it

already won requested relief under contract claim3. Issue – can they Aetna appeal even though they won on contract claim?

Appeals38

a. Aetna would prefer to win on fraud claim b/c the contract claim is dischargeable in bankruptcy (aetna thought D would more than likely file for bankruptcy)

4. Court holds that when denial of one claim results in prevailing party not getting relief to which it claims to be entitled, either in amount or quality, prevailing party has a right to appeala. P appealed and lost on fraud claim anyway

5. won on theory that could be adverse – this pushes limitsE. Waiver

1. must be raised in trial court in order to be appealable – a. that way Appellate court has record and trial court could fix during trialb. don’t want to undermine trial court’s authority as primary arbiter of casec. encourages party to raise objections when they can be corrected

2. Exceptions to not hearing an issue not raised in trial courta. Plain error – doesn’t have to be raised by parties because threatens reputation of

courts (narrow exception)b. Prevailing party defending decree

1. Mass Mutual v. Ludwig (p. 36 packet)a. Contract interpretation qst – Ludwig sued for double indemnity. Mass

Mutual, the insurer, argued that only ordinary benefits appliedb. DC held that MI law applied and that under MI law, insurer only had to pay

ordinary benefitsc. Ludwig appealed.d. On Ludwig’s appeal to CA, Mass Mutual argued that lower court’s

interpretation of MI law was correct and alternatively, even if IL law applied, Ludwig would still only be entitled to ordinary benefits

e. Court of App reversed trial court’s decision but w/o reaching question of which state law applied. Said insururer precluded from arguing b/c didn’t cross appeal. SC said prevailing party doesn’t waive if defending decree. (Plus couldn’t have brought it anyway b/c not adverse)

f. Court held that if all you’re doing is defending judgment below, you can raise the issue on appeal, without having to cross-appeal1. this is true even if issue raised on appeal uses a different reasoning

from that used by lower court. As long as it still supports judgment of lower court, there’s no need to cross-appeal

g. However, when trying to expand judgment below, it’s necessary to cross-appeal

c. subject matter jurisdiction – can always be raisedd. when issues are so entanglede. significant changes in law

1. Carson Products v. Califano (packet p. 33)a. D can raise issue first time on appeal b/c “exceptional circumstances”b. FDA ruled Carson had to disclose secret ingredient on their label c. On appeal, Carson raised a due process attack on FDA procedures for the

first time1. another case had been decided, after judgment in this case, that FDA

procedures with respect to trade secrets were unconstitutionald. This was considered to be an “exceptional circumstance” therefore Carson

could appeal even though it had not raised due process issue in lower courte. Test for “exceptional circumstances”

1. dramatic, important change – manifest injustice would occur if Carson were denied right of appeal

2. prejudice issue – both parties had opportunity for full briefing on issue3. competence of court – purely a legal decision – no new factual issues.

CA was therefore in just as good of a position as lower court to consider issue. Plus other side wasn’t at disadvantage

F. Finality of Judgment

Appeals39

1. In order to appeal, judgment has to be final (28 USC 1291) b/c:a. delayb. cost-factors

1. cost of allowing appeals are extraneous costs of an extra appeal if trial court was correct

2. cost of not allowing is perhaps an unnecessary trial or unnecessarily long trialc. if you could appeal in middle of trial, you would mess up processd. keeps you from having micro-managemente. trial court decisions are usually upheldf. if it’s a difficult question of law, district court can ask App. Court to certify issues

1292(b) – not used much2. Arguments against:

a. denial of appeal is often like resolution on the merits3. Possible solutions:

a. let App. Court do rough cuts on meritsb. hardier use of 1292(b) – if DC self-identifies it as tricky thing, let it go up right away

4. problem = some times difficult to tell which judgments are final. Litigants some times learn too late that a decision disposing of their claim was final and their rt to appeal has run in meantime.

5. most appeals denied so credibility of trial courts is maintained6. took appeals from common law and it is at odds with the rest of system which is more

like equity. (historical argument against final judgment rule)7. CA has jurisdiction over appeals from all final decisions of District Courts -- 12918. Liberty Mutual v. Wetzel p. 752

a. DC finds D liable under P’s motion for partial SJ but withholds granting any reliefb. D then asks for stay of injunction, under assumption that DC had granted injunction.

D then appeals.c. CA takes case on its merits and affirms decision.d. SC hears case on its merits and then raises issue of appeal on its own motione. SC looks to form of relief to determine whether there was final judgmentf. Here, no relief granted so no final judgment. Partial SJ on liability interlocutory

under Rule 56(c) and isn’t finalg. Not final if injunction was granted or denied. It would have been final if it was

granted but it was postponed.h. Liability determination doesn’t count as Declaratory relief as P argued it didi. Court messed up.j. You can appeal a single issue if final. Separate claims that are triable separately are

separately appealable – otherwise perverse incentive to bring cases separately and not use more efficient joinders

k. Refinement of what it means to be final9. Exceptions to Final Judgment

a. 54(b) – some, not all claims, are resolved so you can appeal on those. Focused exception.

b. 1292(a) – if injunction granted or denied, then final. Ct of App must review if party appeals. Focused exception.1. applies to preliminary injunctions2. doesn’t apply to TRO’s – (probably b/c of short length – 10 days)3. doesn’t apply to denial of SJ in favor of a party seeking permanent injunction

b/c ruling is not a rejection of a claim on its merits. Trial will still follow.4. Appropriate b/c of their special nature and potential for harm

c. 1292(b) – interlocutory appeals -- – where DC certifies an issue of law to CA if appeal would speed ultimate resolution of case and the question is legally important1. discretionary. They only accept 50%.2. Party seeking review must apply for appeal within 10 days of order3. District judges wishing to create possibility of an interlocutory appeal of a non-

final order must certify that order:

Appeals40

a. involves a controlling qst of law as to whichb. there is substantial ground for a difference of opinion andc. an immediate appeal from order may materially advance ultimate

termination of litigation4. most common grounds for rejection is “it doesn’t materially advance”

d. collateral order (practical finality)1. conclusively determine disputed question2. resolves important issue separate from merits3. effectively unreviewable on appeal of final judgment4. if these three conditions met, mandatory review5. Lauro Lines v. Chasser p. 760

a. Facts:1. P sued for damages suffered during hijacking in a NY court. Lauro

moved to dismiss suit, arguing that forum selection clause on back of tix dictated that case be tried in Naples, Italy

2. Court denied motion to dismiss. Lauro tried to appeal arguing that their right is to be sued only in Naples and allowing suit in NY destroys their right

b. Here first two parts of Collateral are met but not third. Court focuses on third prong of test and says it’s reviewable later so therefore, not a collateral order1. right to a forum in Naples can still be vindicated after trial in NY2. D will lose time and money fighting suit in NY but costs of

unnecessary litigation are not enough to justify allowing immediate appeal of a pre-trial order

c. don’t lose “right to be tried in Italy” – this is different than “right only to be tried in Italy”1. Scalia says this isn’t important right but technically you could phrase

anything like thisa. denial is destruction of rt to have forum in Italyb. but rt is simply not important enough to allow an appeal w/o there

being final judgmentd. Hard to apply collateral order doctrine without looking at merits of claim

1. Lauro’s asserted rt is not on same level as absolute or qualified immunity

2. Denials of motion to dismiss that are based on a claim of immunity from suit may be appealed immediately

3. Lauro’s claimed right is more like a claim that court doesn’t have jurisdiction over the matter, which is not appealable if denied

e. writ of mandamus also = exception to final judgment – see under Trial sectionG. Standards of Review

1. Abuse of discretion – deals with law. Was DC in range of appropriateness?a. ex. of when we use = new trial, amendments (more aggressive), some evidence

questionsb. even if you disagree, it it’s within range, it’s OK (lots of deference)c. soft standard – how it’s applied is case dependentd. “against great weight of evidence” is also example of this. It is on the more

aggressive end of the spectrum b/c we’re taking case away from jury (jury verdict)2. de novo – deals with law

a. court starts freshb. does rely on DC record. They don’t regather evidence.c. Ex = judgment as matter of law (b/c straight legal sufficiency qst), jury instructions,

some evidence questions, new trial procedural errors3. clearly erroneous

a. applies to judge’s findings of fact even when there’s a juryb. soft standard that’s discretionary

Appeals41

c. Anderson v. Bessemer City p. 772 (recreation director – only one woman applied)1. Trial court made a determination on findings of fact and law (no jury).

a. CA reversed finding of discriminatory intent on grounds that finding was “clearly erroneous”

2. SC held that Ct of App misapplied “clearly erroneous” standard and acted as fact finder. Really did de novo. Didn’t ask could court come out this way but rather, should it have come out?

3. Like Lind4. No longer different standards for oral and written testimony. Now same “clearly

erroneous” standard for all fact finding. 52(a) now codifies this point5. SC holding: where there are two permissible views of the evidence, factfinder’s

choice can’t be clearly erroneous6. SC says under “clearly erroneous” standard, it’s not enough that CA disagrees

with fact-finders conclusiond.

H. Harmless Error = not appealable – Rule 611. Fed. Courts forbidden to reverse errors that don’t affect substantial rights of parties and

don’t change likely result2. involves getting into heads of jury – this is hard. We just can’t ask them.3. test= how likely is it for error to change results. A high level of certainty is not necessary

– just likely4. this standard is inconsistent and difficult to apply in practice5. pressures on Appeals Court to find error to be harmless (use of resources)

Appeals42

X. Alternative Dispute Resolution (ADR)A. Mediation

1. parties are decision makers2. often a prerequisite for going to court3. generally parties have long term dealings with each other4. mediator = just facilitator5. Grillo –

a. mediation = bad for women because it assumes parties use good faith but they don’t so advantages to those who are more manipulative

b. mediation is coercive and oppressed womenc. coercive power of mediator b/c in some jurisdictions they can make

recommendations to court based on info acquired in mediationd. difficult to disprove habitual liarse. shift in negotiation stancesf. focus on future so can’t bring up past = badg. counter to her argument = she’s not arguing against mediation but rather mediation

gone wrongB. Arbitration

1. precludes going to court. Replaces court system.2. Arbitrator = judge and expert. Can come up with a final decision.3. Parties self-define substance and procedure law4. You agree to pre-dispute5. May be cheaper, faster, and more private6. Courts have begun to enforce arbitration agreements and often give them tremendous

deferencea. mandatory arbitration is appealable but courts still give a great deal of deferene to

arbitrator’s decisionb. often these arrangements are accompanied by fee-shifting provisions providing

disincentive to go to trial7. Decision not reviewable in court except in narrow circumstances8. Lose precedential value9. Can have knowledgeable arbitrators (get rid of problems of jury)10. “arbitration and award” is affirmative defense under 8(c)11. Disadvantages:

a. parties give up right to jury trial (can be argued it isn’t as democratic)b. no due process b/c there’s no “state” action involvedc. private law doesn’t develop precedent and decisions don’t become publicly knownd. arbitration awards usually not appealable

1. possible solution = rent-a-judge12. Ferguson v. Writer’s Guild (Bev Hills Cop II)

a. Facts:1. original determination on credits – P wanted exclusive credit2. arbitration terms came, not from arbitration agreement, but from a unilateral

Writers Guild document referred to in agreement3. Ferguson wanted court to override arbitration ruling and give him sole credit

b. if parties agree to arbitration, you can’t appeal laterc. the court can review procedural problems. (contract) – so court has authority to

review whether they enforced contract as they said. But Ferguson didn’t preserve record and didn’t exhaust remedies so he doesn’t get this1. procedure would need to be material and prejudicial departure from agreed upon

procedured. Court won’t rule on substantive findings of arbitrators therefore it defers to

arbitration determination

ADR43

American Procedure in Comparison44