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CIV PRO IIFall 2011

Farish Percy By Ben McMurtray

Table of ContentsI. Introduction

.............................................................................................................................................Page 3

II. Anatomy of a Lawsuit.............................................................................................................................................Page 4

III. Part 1: The Pleadings.............................................................................................................................................Page 5a. The Complaint

.......................................................................................................................................Page 6

b. Service.......................................................................................................................................Page 11

c. The Answer.......................................................................................................................................Page 14

d. The Reply.......................................................................................................................................Page 20

e. Signature and Verification Requirements.......................................................................................................................................Page 21

f. Amendments.......................................................................................................................................Page 24

IV. Part 2: Joinder, Fraudulent Joinder, Impleading, and Intervening.............................................................................................................................................Page 27

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a. Compulsory Joinder.......................................................................................................................................Page 28

b. Permissive Joinder.......................................................................................................................................Page 30

c. Impleaders.......................................................................................................................................Page 31

d. Intervenors.......................................................................................................................................Page 33

e. Claim Joinder.......................................................................................................................................Page 34

f. Removal.......................................................................................................................................Page 36

g. Misjoinder, Improper and Fraudulent Joinder.......................................................................................................................................Page 38

h. Supplemental Jurisdiction.......................................................................................................................................Page 40

i. Consolidation and Separate Trials.......................................................................................................................................Page 41

V. Part 3: Discovery.............................................................................................................................................Page 42a. Timeline for Discovery and Case Management Order

.......................................................................................................................................Page 43

b. Overview of Informal and Formal Discovery.......................................................................................................................................Page 45

c. Scope of Discovery.......................................................................................................................................Page 47

d. Electronic Discovery.......................................................................................................................................Page 48

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e. Objections to Discovery.......................................................................................................................................Page 49

f. Discovery Privileges.......................................................................................................................................Page 50

g. Required Expert Disclosures.......................................................................................................................................Page 52

h. Supplementing Discovery.......................................................................................................................................Page 54

i. Protective Orders for Discovery.......................................................................................................................................Page 55

j. Rule 11 For Discovery.......................................................................................................................................Page 56

k. Interrogatories.......................................................................................................................................Page 57

l. Production of Documents.......................................................................................................................................Page 58

m. Requests for Entry Upon Land.......................................................................................................................................Page 60

n. Depositions.......................................................................................................................................Page 61

o. Requests for Admissions.......................................................................................................................................Page 63

p. Mental or Physical Examinations.......................................................................................................................................Page 64

q. Subpoenas.......................................................................................................................................Page 65

r. Discovery Sanctions.......................................................................................................................................Page 67

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VI. Part 4: Concluding the Dispute.............................................................................................................................................Page 68a. Summary Judgment

.......................................................................................................................................Page 69

b. Default Judgments.......................................................................................................................................Page 72

c. Dismissal.......................................................................................................................................Page 73

d. Offer of Judgment.......................................................................................................................................Page 74

e. Settlement.......................................................................................................................................Page 75

f. Pretrial Procedures.......................................................................................................................................Page 76

g. Right to Jury and Other Jury Matters.......................................................................................................................................Page 77

h. Jury Instructions.......................................................................................................................................Page 79

i. Motion for Judgment as a Matter of Law.......................................................................................................................................Page 80

j. Post-Verdict Motions.......................................................................................................................................Page 81

k. Appeals.......................................................................................................................................Page 83

l. Binding Effect of Judgment.......................................................................................................................................Page 84

VII. Index.............................................................................................................................................Page 87

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I. IntroductionA. Principles of the Federal Rules

1)Union of law and equity, same procedure for all cases (no longer a distinction in federal courts, but MS state courts retain this dichotomy)

2)Right to jury retained in actions formerly “at law” (but must demand)3)Simplicity and liberal amendment in pleadings and motion practice

a) Essentially “notice” pleadings (short & plain statement of facts showing pleader is entitled to relief)

4)Liberal provision for joinder of claims and parties (Rule 18)5)Comprehensive discovery procedures6)Reliance on discretion of trial judge – hard to prove on appeal abuse of discretion

a) Dispositive issues go to trial judge (motions to exclude witness, dismiss for failure to state claim, etc.)

b) Magistrate judge hears claims over disputes in discovery7)Simple provisions for appeal

B. The Functions of Pleading:1)to give notice, 2)dispose of claims that are legally or factually inadequate, 3)establish facts , 4)guide parties and court through case,

a) (issues, discovery, evidence, jury instructions)5)create a record

C. The Federal Rules of Civil Procedure

1)F.R.C.P. 1 : Scope and Purpose of Rulesa) These rules govern the procedure in all civil actions and proceedings in the

United States district courts, except as stated in Rule 81. They shall be construed and administered to secure the just, speedy, and inexpensive determination of every action.

2)F.R.C.P. 2 : “There shall be one form of action - the civil action.” 3)We litigate for

a) Damages (compensatory, liquidated, punitive), b) Injunctive relief, c) other specific relief (constructive trust, accounting, rescission, reformation),d) Declaratory Judgment, e) Provisional remedies (Temporary restraining orders and preliminary injunctions)

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II. Anatomy of a lawsuit A. Pre-complaint

1)Investigation of the facts and law, negotiations, fees/terms of employment, conflict of interest, choice of court/judge/juries, procedural rules, statute of limitations

B. Complaint C. Responding to the Complaint

1)Answer2)File Rule 12 motion

D. Discovery (by all parties) and Defining the Scope of Litigation1)Formal discovery (under the rules) vs. Informal discovery (on your own)

E. Pretrial settlement / mediation conferencesF. Summary Judgment and Daubert MotionsG. Final Pretrial Conference/order - where you stipulate docs you will produce at trialH. Trial/JudgmentI. Post judgment motions - filed with the trial judgeJ. Appeal

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Part 1: The PleadingsF.R.C.P. 7(a) Pleadings which are permitted:(1) Complaint and Answer (and counterclaim)

(a) Reply(2) Cross-claim and Answer to cross-claim(3) Third-part complaint and Third-party Answer

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The Complaint

A. The Complaint: Federal (“Notice”) Pleading1) The standard utilized is that plaintiff must allege a short and plain statement of a

claim showing entitlement to some relief. Consistent with this liberal approach, the plaintiff can plead alternatively and inconsistently, even within the same count. Fed. Rule 8(d).

2) Although the plaintiff must include a demand for relief, Fed.Rule 8(a)(3), the court is not bound by the demand in a contested case and can award whatever relief ultimately is deemed appropriate in light of the evidence. Fed. Rule 54(c). The ad damnum clause limits recovery only in default situations. Finally, the rules require courts to construe the pleadings liberally so as to do substantial justice. Fed.Rule 8(e). A good illustration of the simplicity of federal pleading is the Official Forms produced by the rulemakers. See, e.g., Forms 10, 11, 12, and 15.

3) By special rule, more detail is required in very limited circumstances. See Fed.Rule 9.

a) The Supreme Court has made clear that heightened pleading standards may only be applied to those actions identified in Rule 9(b).

B. F.R.C.P. 3 : “A civil action is commenced by filing a complaint with the court.”1) Ct. is “always open.” Most courts have electronic filing, some have drop-boxes.2) Filing tolls the SOL for federal question cases 3) For diversity cases , state law controls

b) In MS diversity actions, filing tolls the SOL4) Filing begins the clock on 120 days P has to serve D5) Date of commencement is significant in

c) subject matter jurisdiction (diversity), d) Personal jurisdiction, e) SOL, f) Race to the courthouse issues (when the case is filed in two courts, the

first one filed wins)

C. F.R.C.P. 8(a) – Notice Pleading1) All claims (including counterclaims, but not defenses) must contain:

g) short and plain statement of the grounds for jurisdiction: i. Subject Matter Jurisdiction:

i. For federal question, cite the Constitutional provision, statute, etc.

ii. For diversity of citizenship, state the citizenship of each party and that the amount in controversy exceeds $75,000, exclusive of interest and costs (§ 1332)

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1. For a corporation, state the state of incorporation and principal place of business (& that the other party is diverse from both of those states)

2. When one party (either P or a co-D) brings multiple claims against one D , that party can aggregate the claims to meet the amt. in controversy

a. It’s irrelevant if they arise out of different transactions, b/c you can use Rule 18’s kitchen sink rule to add the claims together

3. BUT a party can NOT aggregate the amt. of claims against different Ds

iii. Supplemental Jurisdiction: Include basis for each claim in the statement of jurisdictional grounds section of complaint (ex. Form 7, p. 1152)

ii. Personal jurisdiction / venue (usually referring to the state’s long-arm statute – in which the federal ct. sits): may but need NOT be pleaded at all (may signal the defense if it’s a problem)i. See p. 258

h) short and plain statement of the claim showing the pleader is entitled to reliefi. pleading providing sufficient notice of the claim & relief sought to

enable D to make an adequate responsei. i.e. allegations from which the material elements for each claim

can be discerned (list all claims and facts supporting their elements and supporting dmgs. sought)

ii. plead more facts to: i. get the judge’s 1st impression,ii. ↑ sympathy for P ↑settlement $,

iii. educate the judge, (can do later)iv. BUT may accidentally plead a narrower claim & give the defense

ammunitioni) demand for judgment for the relief the pleader seeks

i. Must specify the type of relief (monetary dmgs, equitable relief, declaratory judgment), but need NOT specify an amount (except >$75,000 must be plead in diversity case)i. Strategic reasons to specify an amount :

1. Starting point for settlement negotiation2. Publicity

ii. Rule 54(c) / Default Judgment: A default judgment cannot:1. Exceed the amount prayed for in the demand for

judgment2. Award relief different in kind from that prayed for in the

demand for judgment

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a. default judgment is limited to amount & type of relief plead (policy: to give D notice)

3. BUT: some local rules or state substantive law prohibits pleading a specific sum (Ex: MS only bars pleading specific sum in med-mal cases)

2) F.R.C.P. 8(d)(1) : Each averment of a pleading shall be simple, concise, and direct

3) F.R.C.P. 8(d)(2) : Alternative and inconsistent claims/defenses permissible within confines of Rule 11 (i.e. non-frivolous claims – can seek alternative relief too)

4) F.R.C.P. 8(d)(3): May state as may separate claims/defenses as it has, regardless of consistency

5) F.R.C.P. 8(e) – pleading liberally constructed so as to do substantial justice

D. F.R.C.P. 9 : Pleading Special Matters:1) Heightened pleading is required for:

j) Fraud / mistake (as a claim or defense)i. State with particularity the circumstances constituting

fraud/mistakei. (i.e. who, when, how, etc.)

ii. Intent can be plead generally iii. BUT if multiple Ds, you need to specify why each D is liable for fraud

(responsible as agent, etc.)iv. required b/c of the potential for punitive dmgs., consequences are

more severe with fraud, & with mistake, don’t want them to be able to just withdraw the K

k) Special damages (ex: “I want punitive damages and attorney’s fees and emotional distress damages”) (policy: to give notice)i. Performance of a condition precedent is plead generally; whereas,

failure to perform a condition precedent is plead specifically ii. Time and place: if pleaded, may support claim / defense (ex: if P’s

claim arose 8 years ago, may hurt P on SOL)iii. Required to ask for to give notice, b/c not normally damges the D

expects you to ask for

E. F.R.C.P. 10 – Form of Pleadings1) Caption – includes name of court, title of the action (all parties named in the

complaint), file #, Rule 7(a) designation (ex. complaint, answer to complaint, etc.)

l) List all parties in titlem) List Ps and Ds individuality in caption on first pleading ; later pleadings can

list 1st only (think of this strategically) 2) Limit allegations in each paragraph/defense to single set of circumstance

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n) Limit claims in a single count to those based on same transaction or occurrence. State defenses separately when separation facilitates clear presentation.

o) Policy: in lengthier ¶s, it’s difficult to discern what D is admitting or denying lateri. Best policy is to list one fact per paragraph

3) May adopt paragraphs by reference and may attach exhibits (so the judge can look at exhibits as part of the pleadings on motions b/f the judge, such sa FTSC)

p) copies of written instruments attached to pleadings are part of pleadings for all purp.

F. F.R.C.P. 38 – Jury Trial1) Right to jury trial is preserved2) Party must demand jury trial in writing no more than 14 days after service of

the last pleading (best practice: demand jury trial in complaint/ answer/counterclaim)

q) Must serve demand on other party within 14 days of service of the last pleading directed at that issuei. last pleading directed at that issue: If you have a complaint, you are

going to answer that answer is a “last pleading directed at that issue”

3) Specifying Issuesr) Party can specify which issues it wants to have a jury trial on and which it

wants to leave to courts) However opposing party can request jury trial on remaining issues if it

chooses4) Otherwise, right to jury trial is waived . (but see Rule 39(b) – court may order

jury trial in cases where demand was filed out-of-time), but person is no longer entitled to it

t) Consider jury pools in choosing b/t state or federal courtu) Demand for jury must be on legal issues and not on equitable claims

G. Other Requirements that may be imposed under state law:1) Medial malpractice: (prior notice, certification re: expert, can’t demand specific

amount of money)2) Shareholder derivative claims (notice to directors before bringing suit)3) Miss. Tort Claims Act (advance notice required)4) Claim against doctor in a prescription drug case (heightened pleading)

H. Federal statute may impose additional requirements including:1) Employment discrimination (file claim with EEOC, obtain right to sue letter)2) Private Securities Litigation Reform Act (heightened pleading)

I. Drafting a Complaint 1) Three purposes to keep in mind: utility, brevity, simplicity2) Put “Upon info and belief” if you don’t have enough evidentiary support, but think you

will develop it

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3) Non-frivolous argument for a change in law depends on i. how old the rule is

ii. if it has been returned to in other cases, iii. what other jurisdictions say

v) If the highest court makes a rule and re-affirms that rule multiple times, you will have a hard time making a non-frivolous argument for change

w) If a court has updated the law to move away from an antiquated rule, you will have a hard time making a non-frivolous argument to revert back

4) While early disclosure improves your credibility w/ the court, you must disclose negative precedent to the court when the judge rules on that issue (i.e. not in the complaint but in a motion to dismiss for failure to state a claim)

5) Discovery is limited to claims raised in the complaintx) Thus, benefit of pleading with particularity is to expand discovery

6) You can ask for dmgs once at the end, but you must particularly plead special damages7) Most lawyers allege one complaint/count per paragraph even though rules permit

numerous claims in same ¶ if they arise from same transaction or occurrence (Rule 10)8) Reasons to go beyond notice pleading and include more details:

y) Pleading elements to avoid Rule 12(b)(6) motionz) Heighted Pleading requirement under Rule 9aa) Pleading to broaden discovery (pattern and practice, emotion distress) and not

to limit claims (but can probably amend complaint)bb) demand specific relief even though not technically required b/c D might claim

lack of notice under Rule 54(c) default judgmentcc) avoid claim preclusion – i.e. use it or lose it (if bring personal injury claim from

car wreck can’t bring ppty dmg. claim)dd) use pleadings to establish facts (which D must admit or deny) - win up frontee) to tell a good story - sympathetic P, detestable Dff) ability to amend may be greater if plead w/ more detail (amended pleading

relates back if it arises out of the same transaction or occurrence even if SOL has run)

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Service

A. F.R.C.P. 5(d) – Filing and serving the complaint1) File the complaint with the clerk (of the district court) or judge (if he accepts it) before

service and before running of SOL, either:gg) in person hh) by mail (filed upon receipt, not mailing)ii) electronically if authorized by local rule or standing order – may even be

mandatory (check for preferred or mandatory method of service first)i. MS rule: paper filing for complaint; e-filing permitted after that

jj) by fax if authorized by local rule2) Upon filing, you must also pay a filing fee ($350) and fill out & file a Civil Cover

Sheetkk) check local rules for the number of copies you need to filell) Clerk assigned case #

3) On or after filing the complaint, clerk will sign, seal, & issue a proper filled out summons for each D

mm) F.R.C.P. 4(a): The Summonsi. Shall be signed by the clerk and bear the seal of the court

ii. identify the court and the parties iii. shall be directed to Div. identify the name and address of P’s attorney (or P if P is unrepresented) v. state the time within which D must appear & defend and notify D that

failure to defend will result in default judgment for the relief demanded in complainti. See Form 3, pg 1178

B. F.R.C.P. 4 - Serving the complaint 1) 4(c)(1) - P must serve a copy of the complaint and summons to D2) 4(c)(2) - Anyone at least 18 who is not a party can serve the complaint

nn) Ex. process server, private investigator, sheriff’s office (there’re cheaper, but may be busy)

3) 4(e) - An individual in the U.S. can be served by:oo) Personal service (delivering it to D)pp) Leaving it with a suitable person of age and discretion at the dwelling of Dqq) Delivering copy to an authorized agentrr) Any other means authorized by law of state where case is filedss) Any means authorized by law of state where service is to be effected (i.e. the

state where D is a resident)i. cheap alternative: Miss. R. Civ. Pro. 4(c)(5): non-resident can be served by

certified mail, return receipt requested (still service if it comes back rejected)(service complete on date of delivery as evidenced by returned receipt) (for individual D, restricted delivery so only D can sign for it)

tt) Any means authorized by specific federal law (that specifies service)i. NOTE : Special rules for individuals in foreign country, minors,

incompetents, U.S., foreign governments, state & local governments4) 4(h)(1) - A corporation in the U.S. can be served by:

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uu) Delivery to officer, managing agent, general agent, authorized agenti. the authorized agent of a corp. is filed with Secretary of State’s office and

can be found onlineii. General agent is a disputable term

vv) By any other means authorized by state lawi. where filed

ii. where affectedww) In accordance with federal statute

4(m) – P must serve D w/in 120 days of filing of the complaint unless P shows good cause(i) If good cause is shown, ct. must extend the time for service .

- Good cause: specify how you’ve tried to trakc down D, using an affidavit drafted & signed by person attempting service

(ii) If P fails to shown good cause, ct. has discretion to dismiss w/o prejudice or extend time for service (may affect the SOL if the complaint is dismissed)

4(l) - If P actually serves D, P shall make proof of service to the court (i) This requires that the process server fill out the form on the back of the summons (or

proof of service can be demonstrated by D’s filling out the waiver form)(ii) Will be used by court in the event of motion for default judgment

4(k) – territorial limits of effective service: Service confers PJ on Ds:

(i) Who are subjected to service under state’s long-arm statute(a) Service is only valid if the court has personal jurisdiction over

(ii) When authorized by federal long-arm statute providing for national or world-wide service

(a) Federal interpleader statute (where court may not have PJ over both potential claimants)(iii) 100 mile Bulge Rule for Rules 14 and 19 (from ct. where summons issued) (outside of long arm statute)(iv) If P’s claim arises under federal law, then service confers P over D who is not subject to PJ in any state but who has sufficient contacts with the US to make exercise of PJ constitutional

4(d) – As an alternative to actual service, P can mail:- complaint, - notice and request for waiver - waiver (and extra copy), - and prepaid means for return of waiver(i) D in U.S. has 30 days from date of mailing to consider waiver(ii)must inform d of consequences of failing to waive, state the date the request was sent, &

give the D at least 30 days to return the waiver(iii) If D refuses to waive service, court shall impose cost of service plus reasonable attorney

fees incurred in making motion for service expense (unless D has “good cause”)(iv) If D waives service, D must answer within 60 days (extended from 20) from the date

the request (for waiver) was mailed(a) ct. will usually give D more time to answer, but waiver avoids embarrassing service in

public place.

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(b) Atty may advise not to waive service if SOL is about to run (but he can’t advise to hide from process server)

(v) The date of service for purposes other than determining when the answer is due is the date P files the executed waiver with the court (filing executed waiver sets date for Rule 4(m)(must be within 120 days of filing complaint; i.e. this is the date serving is complete); sets date for SOL when determined by service)

(a) P can ask a corporate D to waive service too(ii) Waiver doesn’t include personal jurisdiction or venue. Do only waives objections to

process & service of process.

F.R.C.P. 5: Serving all other documents (other than service of process of complaint)All later pleadings, motions, discovery that is required to be filed, offer of judgment, etc. shall be

served on each party by serving the party’s attorney(i) Service of later pleadings can be accomplished by:

(1) Hand delivery(a) Leaving it at person’s office with the person in charge or leaving it in a conspicuous place(b) Leaving it at person’s dwelling house with resident of suitable age & discretion (if person has no office or office is closed)

(2) Mailing it to last known address (service complete upon mailing)(3) If a person’s address unknown, may leave a copy with clerk(4) Other means , including electronic, if consented to in writing before hand

Electronic = complete when transmitted(a) the answer to the complaint must be filed with the court’s district clerk(b) You don’t have to file expansive discovery unless you attach it to motion for

summary judgment(ii) You must then file certificate of service (an attached document where you aver that you

serviced D) (a) Date served(b) method of service(c) what was served(d) who was served

(iii) Must file pleadings, motions, offers of judgment, etc. within a reasonable time after serving (be practice: file simultaneously w/service)

(iv) Don’t file required initial disclosures or discovery requests/responses until they are used.

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The AnswerJ. Ways Defendant can answer:

9) defendant can enter a plea in abatement either by motion or in the answer. 10) can introduce an affirmative defense, and 11) can seek independent relief from the plaintiff.

xx) Each of these last three options may be used alternatively or in combination.12) In addition, the defendant may admit the allegations in the complaint, either by

specifically acknowledging their truth or, more commonly, by failing properly to deny them.

K. Five different types of denials may be used. 13) A general denial puts in issue all matters set forth in the complaint, and thus typically

cannot be utilized truthfully.14) specific denial, denominating those paragraphs that are in dispute. The failure to deny

the other paragraphs results in their admission. See Fed.Rule 8(b)(6).15) A qualified denial may be used (most common)

yy) denying only specific averments within a given paragraph. 16) denial on the ground that the defendant has insufficient knowledge to form a belief as

to the truth or falsity of a given allegation in the complaint. zz) issue must be one outside the defendant's knowledge aaa) the defendant could not easily have become informed.

17) denial on information and beliefbbb) used most often by corporate or institutional defendants

i. permitted because the information available to the corporation at the time of filing the answer may be only secondhand.

L. the defendant may include affirmative defenses in the answer. 18) the defendant admits the truth of plaintiff's allegation, but alleges new facts that

require the dismissal of the action. 19) The defendant in admitting the plaintiff's allegations does so only for purposes of the

defense. 20) Examples of affirmative defenses are statute of limitations, res judicata, assumption of

the risk, and release. 21) failure to include an affirmative defense in the answer usually will result in its waiver.

M. Counterclaim or Cross-Complaint22) The final matter to consider including in the answer is a request for some affirmative or

independent relief from the plaintiff. 23) For pleading purposes, a defendant in this position is treated like a claimant and the

same pleading requirements that govern the complaint control the assertion of a claim in the answer.

In the Answer (to the complaint) include the following:(1) F.R.C.P. 8 – Respond to the averments (addressing the numbered paragraphs in order)

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(i) Admit(ii) Deny (per Rule 11, must have evidentiary basis for denial, so must do r’ble investigation) (iii) Partially deny (be specific)(iv) If D doesn’t have sufficient knowledge to admit or deny, state that and it has the effect

of denial ** Other than allegations as to amount of damages, anything not addressed is deemed

admitted

(2) F.R.C.P. 8(c) Raise Defenses (ex. contr. neg., allocation of fault to other tortfeasor)(i) state defense in short and plain terms(ii) plead affirmative defense or they will be waived(iii) D can set forth alternative and inconsistent defenses

(a) If it’s an affirmative defense, D has the burden of proof

III. D’s options in how to respond to the complaint: (1) file and serve an answer (you need cert. of service on the answer but not the complaint)(2) file and serve a motion pursuant to Rule 12 (may be raised as affirmative defenses in your answer and motions are NOT required unless local rules state otherwise)A. (a) If served, either response must be made within 21 days after service (Rule 12(a)(1)(A))B. (b) If service upon D within U.S. was waived, within 60 days after date request for waiver

was sent – Rule 12(a)(1)(B)1)(i) Days are commutated by Rule 6: If served by mail, D gets 3 extra days

C. (c) If you filed a Rule 12 motion , it tolls the time within which you have to answer.1)(i) MOST: partial motion attacking one part of complaint tolls SOL for entire complaint

(precaution: get other side’s consent that you don’t have to answer). 2)(ii) Thus, you only have to answer IF:

a) (1) the court dismisses the motion or postpones ruling until trial, in which you have w/in 14 days of the order to answer – Rule 12(a)(4)(A)

b) (2) the court grants a motion for a more definite statement, in which case you have within 14 days of service of more definite statement to answer

IV. F.R.C.P. 12(b)(6) - Failure to State a Claim A. Before Twombly & Iqbal

1)Claims can be subject to dismissal based on legal or factual inadequacy: Two defects:a) Legal- assuming all the facts are true, has the plaintiff stated a claim? If the

plaintiff sues for medical monitoring but the S.Ct. has refused to recognize that claim, that’s a legal defect

b) Factual- the facts as alleged were not enough to support the claim2)Dismissal pursuant to 12(b)(6) is a legal issue for the trial judge; it will be reviewed de

novo by an appellate court.3)Court must look ONLY at the complaint, accept the well-pleaded allegations as true,

resolve doubts and inferences in the pleader’s favor, and view the pleadings in the light most favorable to pleader

B. Twombly

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1)Factual allegations must be sufficient enough to raise the right to relief above the speculative level.

2)“A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”

3)TEST : Is it a bare conclusory allegation? Does it have enough facts to suggest some plausibility?

4)Must be able to conceive of a plausible set of factsa) Effect will be to throw more cases out at the outset

C. Iqbal 1)Twombly standard applies in all civil cases2)A complaint must contain sufficient factual matter, accepted as true, ‘to state a claim to

relief that is plausible on its face.’a) Court does not have to accept bare legal conclusions as true.

3)Determining whether a complaint states a plausible claim for relief will be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.

4)Note: if it’s the elements of the COA, just specifically outlined with the facts, it will be a legal conclusion, not factual conclusion

5)Two pronged test: a) Determine whether the allegation is a fact allegation or a bare legal conclusionb) Throw out the bare legal conclusion(s)

6)Examine what is left (factual allegations) to determine whether the plaintiff’s claim is plausible

F.R.C.P. 12(b) Motions(1) Lack of subject matter jurisdiction (2) Lack of PJ(3) Improper venue - including forum non-conveniens (4) Insufficiency of process (the summons wasn’t filled out or issued correctly)(5) Insufficiency of service of process (ex. leaving complaint w/ five year old; serving secretary

and not general agent of corp.)(6) failure to state a claim(7) failure to join a party required by Rule 19

F.R.C.P. 12(h) WaiverIf you file a motion pursuant to Rule 12 or you file an answer (which ever you do first), you must include the following defenses or they will be waived FOREVER:(1) lack of PJ(2) improper venue(3) insufficiency of process(4) insufficiency of service of process

(a) While 12(b)(7) failure to join a party required under Rule 19 is NOT listed above, if you fail to raise it in your first 12(b) motion, you can ONLY later raise it w/ regard to an indispensable party (NOT for merely a necessary party)

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F.R.C.P. 12(g) ConsolidationIf a Rule 12 motion is filed, all Rule 12 defenses must be included to avoid piecemeal motions. (only ONE Rule 12 motion may be brought) BUT:(1) challenges to SMJ cannot be waived and can generally be raised at any time (so even though

you can’t bring it in a second Rule 12 motion, you can raise it in the answer)(2) later motions alleging failure to state a claim or failure to join a indispensable party may be

raised in the form of a motion for judgment on the pleadings after the pleadings have closed or at trial (consolidation of motions is N/A to judgment on the pleadings)

- Ex, pleadings closed: A complaint & answer have been filed. The pleadings are considered closed. But, if there has been a complaint with an answer & counterclaim, the pleadings aren’t closed until there is a response to the counterclaim.

F.R.C.P. 12(b)(6) / Failure to state a claim – A claim may be DISMISSED if it is: (1) legally deficient (asserts a legal claim that is not cognizable as a matter of law. ex. state

doesn’t recognize the claim) or (2) factually deficient (fails to allege facts to support a legally cognizable claim. ex. even if all

the facts are true, P hasn’t alleged enough facts to support the claim (cure by re-pleading)) (a) dismissal pursuant to 12(b)(6) is a legal issue for the trial judge:

(i) When ruling on the motion, the district court must accept all allegations as true, resolve all doubts and inferences in favor of the claimant and view the pleadings in the light most favorable to the non-moving party

(b) a Rule 12(b)(6) motion is a legal motion reviewed de novo by an appellate court (so they use the same standard as the district court above)

(c) Generally, the court cannot consider evidence outside the pleadings (except for documents attached to a pleading)

(i) If you ask the ct. to consider extrinsic evidence, it will be converted to motion for summary judgment and postponed until after discovery (12(d))

F.R.C.P. 12 Other Rule 12 Motions(1) Motion for judgment on the pleadings (12(c))

(at the close of the pleadings (thus it does not toll time to answer) (can ONLY consider the complaint, answer, and counterclaims/answers)(can raise failure to state a claim and failure to join a party required by Rule 19 for the FIRST time in a motion for judgment on the pleadings)

(2) motion for more definite statement (12(e))(3) motion to strike, which doesn’t toll time to answer (rarely granted motion based on totally

irrelevant allegations, w/ NO factual proof to support it – so many “upon info and belief,” that would greatly embarrass D or reveal a trade secret – prospectively greatly damaging)

Other Motion Rules:(i) Rule 5 (a) – Motions must be served on other parties: delivery, mailing, other means

(Fed. Ex., fax, email if person to be served has consented in writing)

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i. Filing is required (5(d))(ii) Rule 7(b) – must be in writing, state the grounds therefore and set forth the relief

sought, and must be signed in accordance with Rule 11(iii) Local Rules (Local Rule 7.2) (accompanied by memorandum of authority, can’t exceed

35 pages, etc.) (motion filed clerk; briefs sent to judge)F.R.C.P. 9 Plead w/ particularity fraud, mistake and failure to perform condition precedent

(4) F.R.C.P. 10(a) Answer must contain a caption (ex. call answer and counterclaim)

(b) Each defense shall be stated in a separate count in a numbered paragraph, limited to a single set of circs

(5) F.R.C.P. 13 – Counterclaims (can serve w/ certificate of service)(a) Compulsory counterclaims (must be brought or they are waived)

(i) A counterclaim is compulsory if it arises out of the same transaction or occurrence as the original claim (i.e. the ct. has supplemental jurisdiction) and doesn’t require joinder of person over whom ct. cannot acquire jurisdiction (under Rule 19)- Note: a few narrow exceptions: ex, 13(a)(2): already pending in another ct

(b) All other claims D has against P are permissive (but ct. can refuse to hear if two claims are too confusing) (cross-claims are always permissive)

(c) The court has discretion under 13(f) to allow an omitted counterclaim - Court has discretion to allow a supp. pleading asserting a counterclaim that matured

after the party served any earlier pleading

(i) A counterclaim must satisfy regular claim requirements (caption; title; statements of juris., claim & relief; raise affirmative defenses as separate counts). P must serve reply (=answer) to a counterclaim w/in 21 days or serve R. 12 motion, which tolls time to reply

Types of motions(a) Power – challenge the court’s power to hear the case (SJMJ, PJ, venue, process, service of

process, failure to join party required by Rule 19)(b) Pleading – motion to dismiss for failure to state a claim (only have to attack one element of

P’s claim), motion for more definite statement, motion to strike(c) Substantive – motion for sum. judg. (usually made later, after discovery)(d) Misc. – motion to recuse, to disqualify opposing counsel

Options to attack P’s claim if you need the ct. to consider extrinsic evidence (of a release):(a) Can NOT move to dismiss(b) MUST raise as an affirmative defense(c) May move for sum. judg. and submit the release as evidence to the court(d) Serve Rule 11 motion (sanctions) on other attorney, wait 20 days for atty to w/d the claim. If

claim not w/d, then can present Rule 11 motion to the ct.

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Practical Advice for Answer and Counterclaim:(1) In the caption, do NOT delete a name of a party, even if you are not answering for both(2) Clearly respond to EVERY allegation in EVERY paragraph; don’t fail to respond to an

allegation or a paragraph(3) D can demand a jury trial for his counterclaim – it’s a good idea so you don’t forget.

(a) You get a jury trial if you demand one.(4) REMEMBER: you must have an evidentiary and legal basis to DENY

(a) can admit seeking dmgs., but deny entitled to them(b) if allegations only relate to another D, can state no response from you is required, and to

the extent a response is necessary, you DKI(5) You need jurisdiction over your counterclaims (often have supplemental juris. – same case or

controversy)(a) also need to make a demand for judgment and include a certificate of service

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The Reply

I. The Replya. pleadings beyond the complaint and answer are generally disfavored or forbidden. b. plaintiff may be allowed, or even required, to file a reply.

i. the plaintiff required to file a reply to counterclaims made by the defendant.

Response to a Rule 12 motion to dismiss:(1) Most responses are governed by local rules, but you get to respond in a “response and

opposition to D’s motion to dismiss,” along with a supporting memorandum brief citing case law that supports your position, even if from other jurisdictions(a) NOTE: failure to state a claim is a dispositive claim that ends the case w/ respect to that

claim – but you must respond & preserve your objection for appeal if it’s dismissed(b) it’s also difficult to get federal courts to change existing st. law b/c of Erie (but they may

by saying this is the direction the st. ct. will go in or certify Q to the st. ct.)(c) REMEMBER: if motion to dismiss is N/A b/c need outside evidence not in the record, can

try a summary judgment motion

Responding to an Answer containing affirmative defenses and counterclaims:(1) Do NOT have to respond to denials and affirmative defenses(2) MUST respond to the allegations of the counterclaim (and any claim – cross) by EITHER:

(i) drafting a “reply” to the counterclaim in which you admit, deny, or DIK to each allegation – or else they will be deemed admitted.

(ii) OR by filing a Rule 12 motion

(3) D does NOT have to respond to P’s reply to the counterclaim (4) Thus, P will have 20 days to amend his reply as of right, and a/f that time the pleadings are

closed. (i) EFFECT of closure of the pleadings: you can then file a motion for judgment on the

pleadings (ii) BUT you can still get permission to file later pleadings a/f such closure

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Signature and Verification RequirementsI. The two most common methods used to promote truthfulness in pleading and discourage the

filing of frivolous claims and defenses a. attorney signature requirement

i. affixed only after “a reasonable inquiry” as to whether there are sufficient grounds in law and in fact to support the pleadings. Fed.Rule 11. Sanctions for noncompliance mandatory.

ii. utilize an objective, rather than a subjective, bad-faith standard for assessing whether the signer made a reasonable inquiry and concluded that the pleading was well-grounded in fact and law.

iii. The attorney's certification also is expanded to cover all written motions and other papers filed in the litigation

iv. continuing duty is imposed throughout the litigation so that all subsequent positions advocated must meet that standard.

v. Sanctions for violations are discretionary,1. Fed.Rule 11(c)(4),(5). A “safe harbor” provision also is included by which

parties desiring to request sanctions must wait at least 21 days after the paper has been filed and, if the alleged violation is cured in that period, no sanction motion can be filed. Fed. Rule 11(c)(2).

b. Verification i. Only applicable in very particular circumstances such as in shareholder-derivative

suits, see Fed.Rule 23.1. c. F.R.C.P. 11 - Signature, Certifications, Sanctions

i. 11(a) attorney or unrepresented party must sign every pleading (complaint, answer, cross- and counterclaim), motion, or other paper and list address, phone number, & e-mail address

1. no verification/affidavit necessary unless required by another rule or a statute

2. unsigned papers will be stricken (unless promptly corrected)ii. 11(b): Certifications – by signing, filing, submitting or later advocating a pleading,

motion or paper, the person is certifying that to the best of his or her knowledge, information, and belief, formed after a reasonable inquiry :

1. no improper purpose (to harass, cause unnecessary delay, increase cost)2. claims, defenses, and other legal contentions are warranted by existing law

or nonfrivolous argument for the extension, modification, or reversal of existing law

3. Factual contentions have evidentiary support or are likely to have support after reasonable investigation & discovery

a. Just means you have some support for it; not that you believe by a preponderance of all the evidence that your client’s story is true

b. If you don’t have evidentiary support, tag with “upon info. & belief”

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c. If you realize in discovery there is no support for a claim, Rule 11 doesn’t require you to voluntarily dismiss the claim but you CANNOT later advocate that claim

4. Denials of factual contentions have evidentiary support or are reasonably based on lack of information

a. D must admit any allegations he knows to actually be true5. What is a reasonable inquiry depends on the facts & circs. of the case

iii. 11(c) – Sanctions may be imposed upon lawyers, law firms, parties who violate Rule 11(b)

1. if the lawyer is sanctioned, the law firm will typically be held jointly responsible [Rule 11(c)(1)] (multiple law firms can also be sanctioned for one’s acts)

2. Sanctions are discretionary - 11(c) says “the court may”iv. 11(c)(2)&(3) – Procedure:

1. Sanctions can be initiated by motion by a party, in which case the safe harbor provision applies

a. Safe harbor: bring it to the attention of the other side & give them opportunity o voluntarily dismiss it

b. Such motion should be filed separately and specifically describe conduct that allegedly violates Rule 11

c. Party serves motion (under Rule 5) but doesn’t file or present it to ct ‘til more than 21 days after service

i. Gives offending party time to correct2. Sanctions can be initiated by court, but the court must first enter show

cause order describing conduct that appears to violate Rule 11a. Gives the offending party an opportunity to justify actions

v. 11(c)(2) – Types of sanctions the court may impose include:1. Whatever suffices to deter conduct:

a. Non-monetary naturei. Dismissal

ii. default judgmentiii. enjoin future lawsuit

b. Monetary Naturei. order to pay penalty to court

ii. award of r’ble attorneys’ fees and expenses incurred as a result of the violation

vi. 11(c)(5) & (6) – Limitations on the court’s discretion in determining sanctions:1. Monetary sanctions may NOT be awarded against a represented party for a

violation of Rule 11(b)(2) [certification re: good law or nonfrivolous argument that should be changed, extended]

a. This is a legal certification, so only lawyers get sanctioned under thisb. Can impose monetary sanctions for violation of Rule 11(b)(3) & (4)

2. Sanctions shall be limited to what is sufficient to deter similar conduct by others similarly situated

a. You may consider their financial situation if 1st raised to trial judge, but the purpose of sanction is NOT compensation

3. Monetary sanctions may NOT be awarded on court’s own initiative unless court enters show cause order before a voluntary dismissal or settlement

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4. Court awarding a sanction shall describe conduct constituting a violation and explain the basis for the sanction in its order

vii. 11(d) – Rule 11 doesn’t apply to discovery1. On appeal, rule 11 sanctions are reviewed for abuse of discretion (not de

novo)2. Filing a Rule 11 motion is risky b/c

a. (1) Rule 11 motions are subject to Rule 11 and b. (2) the court may award the prevailing party fees and expenses

incurred in presenting or defending the motion per Rule 11(c)(1)3. Walker v. Norwest Corp., 108 F.3d 158 (8th Cir. 1997):

a. Even a federal court w/o diversity jurisdiction over claims can still sanction you

i. i.e. non-diverse parties; complaint violated diversity statute on face; lawyer sanctioned

b. If you filed in state court and then removed, you can be sanction in federal court for the complaint and for advocating in federal court in violation of Rule 11

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Amendments

I. Amendmentsa. Amendments to the pleadings are allowed in effort to decide cases on their

merits, rather than on technicalities b. Courts refuse an amendment if allowing it would cause undue prejudice to the

opposing party. c. Amendment to conform the pleadings to the trial proof may be utilized.

i. If evidence is presented at trial on an issue not raised in the pleadings and no objection is raised, the court may deem the pleadings amended by the implied consent of the opposing party. See Fed.Rule 15(b)(2).

ii. If objection, then no amendment.d. Supplemental pleadings, Fed.Rule 15(d).

i. seek to present matters that actually have occurred since the original pleadings were filed, rather than create another trial

II. Statutes of Limitation: Relation Back a. some amendments seek to add a new claim or party after the statute of

limitations has run. b. Only allowed if:

i. opposing party had notice within the statutory period that this new claim would be asserted.

c. If amendment seeks new claim between already existing parties:i. allowed if the new facts or theories being alleged arise out of the same

transaction or occurrence presented in the original pleadings.d. If amendment seeks new party:

i. Amendment must present a transactionally related claimii. new party must have received actual notice of the claim before the time

for filing the claim lapsed and knew that, but for a mistake, the absentee should have been a named party. Fed.Rule 15(c)(1)(C).

iii. Or if:1. federal court can allow an amendment adding new party to

relate back if permitted under state law, Fed.Rule 15(c)(1), 2. Or if the party received notice within the period authorized for

service under the federal rules. See Fed.Rule 4(m).

F.R.C.P. 15 (NOTE: Comments to R. 15 are incorrect) Also, check this against ruleTwo ways to amend pleadings:

(1) In writing (R.15(a)) before trial- Must be done within 21 days after serving the pleading - includes a new complaint, filed & served under R. 5

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(2) By introducing evidence during & after trial which goes beyond the pleadings with the implied or express consent of the opposing party (R.15(b)), or if the judge permits amendment over the opposing party’s objection

F.R.C.P. 15(a): Amending in Writing(i) If a responsive pleading is required NO responsive pleading has yet been served, a party may

amend ONCE w/o permission within 21 days after service of the responsive pleading or a R. 12 motion (whichever is earlier)(a) NOTE: pleadings include any claims and any answers/replies. Motions are NOT pleadings

(so you can still amend as long as they haven’t answered). (ii) If NO responsive pleading is permitted (such as for an answer/reply), party may amend

w/in 21 days of service of the original pleading. (iii) Otherwise, to amend a party must obtain EITHER (1) leave of court or (2) written consent of

the adverse party (a) you may be able to amend your answer to raise waivable affirmative defenses that you

forgot(b) A motion to amend:

(1) is w/in trial court’s discretion & reviewed for abuse of discretion (2) rule provides leave shall be freely given, so it seems to allow liberal amendment(3) Factors the trial court will consider :

(i) Whether the amendment would prejudice adverse party (ex: no longer access to the witness)

(ii) Whether motion was timely filed (NO unnecessary delay) (iii) Whether “new” claims/defenses would be futile (Ex. state doesn’t recognize tort

or SOL has run and no relation back)(4) Attach your proposed amended pleading to the motion to amend(5) The amended complaint will completely displace the original complaint, which will

no longer be a part of the record

(c) You must file and serve the amended complaint. (If it’s the same D), personal service is NOT required as long as service of the original complaint was proper , see Rule 5.

(d) D must respond to an amended complaint within 14 days after service or within the original time period, whichever is longer (reply is an answer to a counterclaim)

F.R.C.P. 15(b): amending the pleadings to conform to evidence introduced at trial(i) the “new” issue is tried by consent of the parties

(consent can be express or implied, but implied consent does NOT arise when evidence is relevant to claim/defense contained in original pleadings)

(ii) Thus, if P raises evidence outside the scope of the pleadings at trial, the adverse party must object to the evidence in order not to consent. NO objection = implied consent.

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(a) However, the court may permit amendment if it determines that the amendment will not prejudice the adverse party’s action or defense (court can also grant a continuance to cure prejudice)

F.R.C.P. 15(c): Relation Back (only an issue if the SOL has run on the “new” claim)Amended pleading relates back to date of original pleading when:

(1) Relation back is permitted by SOL law.(2) new claim or defense arises out of the same conduct, transaction, or occurrence set

forth in the original pleading.(3) When changing party or name of party who is defending if

(a) claim arises out of same conduct, transaction, or occurrence as set forth in original pleading, and

(b) the party to be named had notice of the lawsuit with 120 days of filing of the original pleading, and

(c) the party to be named will NOT be prejudiced in defending, AND(d) the party to be named knew or should have known there was a mistake in identity

Same Transaction or Occurrence: This requirement is to ensure notice. Circuits differ over the TEST:(1) Logical Relationship Test: anything logically related (broad- anything logically rel.) (2) Same Evidence Test: evidence necessary to prove original claim/defense must be the same

evidence that is necessary to prove new claim/defense (a narrow test) (3) a recent SC case suggests a narrower interpretation: as long as old and new claims are tied

to a common nucleus of operative facts (BUT this might be limited to habeas cases)

(a) if the lang. of the original complaint was broad, the amended complaint is more likely to relate back.

(b) SOL rationale: give D notice of the action so that he can know his exposure and b/c of loss of witnesses/evidence over time

F.R.C.P. 15(d): Supplemental Pleadings (of later events that could not have been filed in the original complaint)(i) the trial court judge has broad discretion to authorize supplemental pleadings, which raise

claims and defenses which arose after the original pleading.

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Part 2: Joinder, Fraudulent Joinder, Impleading, and Intervening

Joinder APPLICATIONS(1) For P to add a claim against a new D or for a new P to bring a new claim: (a) you must move to amend under Rule 15(a) (if more than 21 days since response) (b) Joinder must be proper under Rules 20 (and you need SMJ too)

(i) once a party has ONE valid claim, she can bring ALL other claims under Rule 18’s kitchen sink rule

(c) you must file and serve a copy of the amended complaint on the new D pursuant to Rule 4

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Compulsory Joinder of Party: Rule 19I. Compulsory Joinder

a. federal practice requires the court to consider specific pragmatic factors in order to balance the equities of the situation and reach a decision.

b. Fed.Rule 19,i. Rule 19(a) Person should be joined if:

1. has an interest in the litigation that might practically be impaireda. by a decree in the absentee's absence b. or that might prevent the existing parties to the suit from

obtaining complete reliefii. If Rule 19(a) joinder is not possible:

1. Rule 19(b) sets out four factors for the court to consider:a. the plaintiff's interest in the forum and whether another forum

might accommodate better all those interested. b. whether the failure to dismiss will subject the defendant to

multiple litigationc. the interest of the absent person should be examined carefully

to see whether it will be foreclosed as a practical matter by the judgment or if there is some way of shaping the relief or staying the execution of the judgment in order to protect the absentee's interest.

d. judicial economy and whether the present action represents an efficient means of settling the underlying dispute.

2. avoid dismissal unless it is absolutely required.

F.R.C.P. 19 Joinder of necessary party / PROCEDURE when D brings a Rule 12(b)(7) motion to dismiss (failure to join a party under R. 19): See slide set 19, slide 4, for flow chart(i) Is the person required to be joined if feasible? If NO, deny motion to dismiss. If YES, continue.

(a) A person is required to be joined if feasible if: (1) when in that person’s absence complete relief can NOT be accorded among those

already parties(2) when the person claims an interest relating to the subject matter of the litigation

AND going forward w/o the person impedes the person’s ability to protect that interest, OR

(3) when the person claims an interest relating to the subject matter of the litigation AND going forward w/o the person subjects an existing party to a substantial risk of incurring double, multiple or inconsistent obligations by reason of the claimed interest(i) Ex. parties to a K, where P is asserting an interest in a limited fund that the person

also has an interest in, when there are two TTs who may seek spec. perf.

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(ii) Is joinder feasible? If YES, order joinder and deny motion to dismiss. If NO, continue.(a) Joinder is feasible when:

(1) The court must have PJ over the person (person subject to service of process)(2) Joinder must NOT deprive the court of SMJ

So, going back to § 1367, no SMJ over a person made party under R. 19(3) If the person joined objects to venue and joinder renders venue improper, then the

court shall dismiss the person (and continue to the next question)

(iii) If joinder not feasible, should case proceed? If NO, grant motion to dismiss. If YES, deny motion to dismiss and continue w/ litigation w/o the necessary party

(a) FACTORS for the ct. to consider in determining whether person is indispensable:(1) How would a judgment prejudice the parties or the person in absence of the person?(2) Can that prejudice be lessened by shaping the judgment?(3) Will a judgment rendered in the absence of the person be adequate? (i.e. will that

person have to bring a separate lawsuit elsewhere?)(4) If the case is dismissed, will P have an adequate remedy? (can P sue somewhere

else?) (b) Court has discretion to weigh these factors .

Generally, dismissal is w/o prejudice, b/c court encouraging party to file elsewhere

NOTE: Joint tortfeasors are NOT necessary parties (P has discretion to sue one, some, or all tortfeasors)

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Permissive Joinder of Parties: Rule 20I. Proper Parties

a. the plaintiff may join parties to the action when it is commenced. i. determined by standard designed to

1. promote judicial economy and 2. prevent the action from becoming unwieldy or cluttered with unrelated

parties and claims. ii. Joinder is PROPER when: (Rule 20)

1. the claims for relief by or against the persons sought to be joined arise out of the same transaction or occurrence or series thereof

2. and joined parties share any common question of law or fact

F.R.C.P. 20: Permissive Joinder of parties (when P wants to bring in a new party)

(1) Joinder of Ps or Ds is appropriate if (i) each asserts at least ONE claim arising out of the same transaction or occurrence or series of transactions or occurrences AND (ii) involving at least one common Q of law or fact

(2) issue of whether to permit joinder is w/in the trial ct.’s discretion(3) court has discretion to order separate trials (see also F.R.C.P. 42(b))

(4) Under the Rules, parties do NOT have to bring all claims, but if they fail to bring a claim, they may waive it pursuant to claim preclusion (which prohibits bringing it later when they could have brought it earlier)

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Impleaders: Rule 14I. Impleaded Parties (Third–Party Defendants)

a. Defending parties can bring in (implead) a third-party defendant can more fully protect themselves. Fed.Rule 14.

b. two requirements for impleader: i. the person to be joined is not already a party to the action

ii. the person “is or may be liable” to the defendant if the defendant is found liable to the original plaintiff.

c. Frequently has to do with indemnity. Done for judicial economy to prevent defendant from having to bring a separate action after being found liable.

d. Impleader rightsi. allowed to assert defenses to the impleader claim

ii. allowed to assert defenses to the main action that original defendant may have omitted.

e. Decision to allow impleader claim is at court’s discretion. i. Will determine if:

1. the joinder of this additional party or of the other claims will unduly complicate the action,

2. improperly delay the determination of the main claim to the detriment of the original plaintiff

3. or confuse the juryii. Will not allow Impleading if those answers are Yes.

F.R.C.P. 14 Impleader (when D wants to add a new party)(1) A defending party can file a third-party claim against a person not a party who is or may be

liable to the third-party Plaintiff (Original Defendant) for all or some of P’s claim against the Third Party Plaintiff (Original Defendant)

(2) The third-party claim must be dependent on the third-party P’s liability to the P (i.e. MUST BE A DERIVATIVE CLAIM ) – “If I have to pay the P, you have to pay me back some or all”)(a) Ex. Indemnity (contractual (written K) or implied, or by virtue of CL); contribution (if I’m J

& S liable to the P, you have to pay me back your share)(i) You must have a substantive legal basis for such reimbursement or contribution &

state law must give you procedural right to bring a claim against a nonparty(ii) REMEMBER: in MS, there’s no more J & S liability; joint tortfeasors are severally liable,

so tortfeasors have NO contribution claims against one another(b) NOT: “It was him, not me.” NOR “he’s a joint tortfeasor who is also liable” NOR “It was

his fault, too.” (c) NO affirmative claims: “He hurt me.” (but may get these in through kitchen sink rule or

you can raise as an affirmative defense that the jury should allocate fault to this non-party)

(4) If a D sues a 3rd party under a derivative claim, they can then use R. 18 (kitchen sink) for other claims

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(3) A third-party claim can be brought automatically w/in 14 days of serving the answer. OTHERWISE, he must obtain leave of court.

(4) Third-party P must serve the third-party D pursuant to Rule 4 (Summons) . Third-party D then must answer or file R. 12 motion

(5) Third-party D must assert any defenses & compulsory counterclaims and may assert permissive counterclaims against the third-party P

(6) Third-party D may assert cross-claims against other third-party Ds if they arise out of same T or O.

Then, the other 3rd party D can assert any counterclaims against the first 3rd party D b/c it would be compulsory or permissive. (7) The third-party D may assert against the plaintiff any defenses the third-party P has against the P’s claims AND may assert any defenses that D has against P(8) The third-party D may assert a claim against the P if it arises out of the same transaction or

occurrence as the P’s claim against the third-party P (and vice versa)(9) If a D counterclaims against the P, the P may bring a third-party claim (10) Although not explicitly allowed by the rule, if a third-party D asserts a claim against the P,

the P should be permitted to bring a third-party claim related to the claim the P is now defending

(11) the third-party D may bring a third-party claim against a person not a party. The third-party D is then the fourth-party P and the “new” defending party is the fourth-party D. This could go on & on forever.* It has to be derivative!*it can be derivative from the claim asserted as Crossclaim from plaintiff against third-party D or from the claim asserted by the D against the 3rd party D.

(12) Third-party claims are Permissive.*NOTE: Before the derivative claim results in liability, there must be some liability imposed

against the original defendant (third party plaintiff)(13) A party may move to strike, sever, or try separately the third-party claim

For each claim that is joined, proper joinder requires that:(1) Joinder must be appropriate under the Rules , either required or permissive(2) The Court must have SMJ over the joined claims based on: (i) fed. Q jurisdiction, (ii) diversity juris, OR (iii) supplemental juris

(a) mandatory counterclaims will probably have supp. juris. (same transaction), but permissive ones will probably NOT & will need a separate ground for juris.

(b) But for supplemental: 28 U.S.C. § 1367(b) expressly provides that when the original claims in the case are based solely on diversity jurisdiction, suits by Ps against persons made parties under R. 14 may not be founded on supplemental jurisdiction.

(3) the Court must have PJ over the parties

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IntervenorI. Intervenor

a. person who is not already a party to an ongoing action but seeks to be made a partyi. shares some interest in the litigation

ii. concerned that in her absence that interest will not be adequately protected.. b. Intervention as of right, Fed.Rule 24(a)

i. intervenor demonstrates an interest in the action that might be impaired if intervention is not allowed

ii. opposing parties do not show that that interest is already adequately represented

iii. The 1990 supplemental-jurisdiction statute specifically excludes intervenors from supplemental jurisdiction, 28 U.S.C.A. § 1367(b)

c. permissive intervention, Fed.Rule 24(b).

F.R.C.P. 24 Intervention (a person wants to become a party)(1) Under intervention as of right, a non-party can intervene when (a) Motion to intervene must be timely and (b) Applicant must be entitled to intervene, meaning EITHER:

(i) a federal statute provides an unconditional right to intervene OR(ii) (1) the applicant claims an interest relating to the ppty or transaction which is the

subject of the action, (2) disposition may impair or impede the applicant’s ability to protect that interest, and (3) applicant’s interest is NOT adequately represented (by the other parties).

(a) there’s a circuit SPLIT over whether this is a legal issue reviewed de novo OR a fact issue reviewed for abuse of discretion

(b) SOME say you have to be an active party, which an insurer is NOT (they’re passive). OTHERS allow an insurer to intervene as of right.

(2) Under permissive intervention, a non-party can intervene when (a) Motion to intervene must be timely and (b) EITHER:

(i) a federal statute provides a conditional right to intervene OR(ii) the applicant’s claim or defense and the main action give rise to a common Q of law

or fact(a) ALL agree this is a fact Q reviewed for abuse of discretion b/c it’s w/in the

ct.’s discretion(3) Party seeking to intervene files motion & serves it on existing parties under R. 5

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Claim JoinderI. Plaintiff Claim Joinder

a. Plaintiff is permitted to join as many claims, related or unrelated, as the plaintiff may have against the defendant. Fed.Rule 18(a)

II. Defendant Joinder: Counterclaims and Cross–Claims a. Counterclaims

i. Defendant can assert any claim that party has against an opponent. Fed.Rule 13ii. Compulsory Counterclaims:

1. Defendant is required to assert any transactionally related claims. Fed.Rule 13(a)

a. Applies only to those claims that were mature when the original complaint was served

b. Not the subject of pending litigationc. Do not require the presence of other parties over whom the

court lacks jurisdictioniii. Permitted to assert others. Fed.Rule 13(b)iv. Failure to file compulsory counterclaim will prevent defendant from raising that

claim in separate action.b. Cross-claims (claims between defendants)

i. Must be transactionally related to the main action. Fed.Rule 13(g)

DfF.R.C.P. 18: Joinder of claims - THE KITCHEN SINK RULE

(1) Party asserting a claim (claim, counterclaim, cross-claim, third-party claim) may join as many claims as he or she has against the opposing party .(a): ex: For a D to assert cross claim against another D, it must be related, but once you have one related claim, you can bring in all other, so long as 1 meets R. 13

(2) If one claim is dependent upon another, the person asserting them may bring both (ex. personal injury and fraudulent conveyance to avoid judgment)

(3) NOTE :Must still satisfy SMJ & PJ requirements!

F.R.C.P. 13: Counterclaims & Cross-claims(1) Defending party must file or waive compulsory counterclaim (one which arises out of the

same transaction or occurrence as the opposing party’s claim and which does NOT require the presence of third parties over whom the court has NO jurisdiction)

(2) A permissive counterclaim is one that does NOT arise out of the same transaction or occurrence as the original claim

(3) A defending party may assert ALL permissive counterclaims (assuming the ct. has juris. over such counterclaims)(a) Only problem is that you need juris. for permissive counterclaims

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(4) A D may file a cross-claim against a co-D if it arises out of the same transaction or occurrence as the original claim or a counterclaim concerning ppty that is the subject matter of the original claim (thus, cross-claims must be RELATED to original)(a) There is NO such thing as a compulsory cross-claim

(5) Cross-claims may be affirmative (you owe me money) or derivative (ex. subrogation, indemnification)

Derrivative = “If I pay P. you must pay me back.”(6) the SOL on derivative cross-claims is usually tolled when the SOL on the original claim is

tolled. (b) Generally, cross-claims seeking affirmative relief do NOT relate back (thus they are not

tolled by the date the complaint is filed)

(6) D may use a counterclaim and cross-claim to join ADDITIONAL parties (7) A trial judge has discretion to order separate trials [ex. if it will confuse the jury] (R. 13 & R.

42)(8) Counterclaims and cross-claims are asserted when D files its answer

F.R.C.P. 12(a)(1)(B): you must reply to counterclaims or answer cross-claim w/in 20 days (remember to bring affirmative defenses and compulsory counterclaims)

- If using one of these rules to add a new party, you have to serve them under F.R.C.P. 4

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Removal

Removal28 U.S.C. § 1441: the power to remove from state court (i) a civil action brought in state court may be removed by the D(s) if the federal district court

would have had original juris. (a) all Ds must join in removal (b) the citizenship of fictitious Ds is disregarded

(ii) the case should be removed to the federal district in which the state court sits (iii) a case based on federal Q juris. can be removed w/o regard to parties’ citizenship(iv) a case based on diversity juris. can be removed as long as there is NO in-state, properly

joined and served D(v) A case can be removed even if the state ct. lacks jurisdiction

(vi) If the st. court case includes a federal Q claim and a separate and independent non- removable claim, the Ds may remove the entire case (supplemental juris., but may be unconstitutional). The federal ct. has discretion to remand all matters in which st. law predominates.

(vii) Foreign states may remove cases in which they are Ds(viii) There are special provisions for (allowing) removal of cases which could have been brought

in federal ct. under Section 1369 (multiparty, multiforum juris.)

28 U.S.C. 1446: the procedure for removal 1446(a): To remove a case:

(i) File notice of removal in the federal district court to which you are removing. (ii) The notice must contain a short plain statement of grounds for removal.(iii) Attach and file a copy of all process, pleadings and orders served on Ds. (iv) ALL Ds must join in removal (excluding fraudulently joined Ds).

(1) Some: one atty may sign, saying that all Ds join. Others: all Ds’ attys must sign. (2) only Ds who have been served at the time of the removal must join in

(v) Signature on notice is pursuant to R.11

1446(b):(i) Notice must be filed w/in 30 days of receipt/service of pleading giving rise to removal (ii) If initial pleading is not removable, but case later becomes removable, Ds may remove

w/in 30 days of receipt of the first pleading, motion, order or other paper from which the grounds for removal can be ascertained. (a) BUT in diversity cases, there can be NO removal more than one year after

commencement of the case. (1) Policy: state ct. has already invested time and effort into the case

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(2) EXCEPTION, 5th Cir.: the one year deadline may be equitably estopped if P is manipulating juris. (Ex. P keeps in-state D in for one year then non-suits him)

1446(d): D(s) must serve notice on all adverse parties and also file a copy w/ state court. (depriving the state court of any juris.)

28 U.S.C. 1447: Remand Procedure (i) If P believes removal was improper, P may file motion to remand.

(a) A motion to remand based on lack of SMJ may be filed at any time prior to final judgment

(b) A motion to remand based on any other defect must be filed within 30 days of the date on which the notice of removal was filed.

(ii) If the case is remanded, the court may order D to pay P’s attorneys fees and expenses incurred as the result of the removal.

- Standard: was there an objectively reasonable basis for removal? If not, then that D who erroneously removed can be ordered to pay costs & attorney fees

(iii) Remand orders are generally NOT reviewable on appeal. (Exception: civil rights cases)(iv) If, after removal based on diversity, P seeks to join non-diverse D whose joinder would

destroy diversity jurisdiction, the court has discretion over whether to:(1) deny joinder OR(2) permit joinder and remand the action to state court (for lack of SMJ).

Voluntary/Involuntary Rule: (i) If removal juris. does not exist at time case is filed, but later develops, D can remove ONLY if

removal juris. was created by a voluntary act of P. (a) Ex. dismissing the non-diverse D.

(ii) SC precedent: If the ct. grants sum. judg. to non-diverse D, the diverse D cannot remove b/c diversity jurisdiction was NOT created voluntarily by the P.NOTE: If the P had voluntarily settled w/non-diverse D, then could remove

(a) Policy: furthers efficiency b/c it avoids remand in the event the st. ct. reverses the dismissal of the jurisdictional spoiler

(b) Furthers P’s ability to be master of the complaint

(iii) Only Ds can remove. P can’t remove b/c he chose the state court forum. 3rd party Ds can’t remove either.

(iv) Under the well-pleaded complaint rule, removal can’t be based on a defense which raises a federal question.

(a) EXCEPTION: D can remove if the federal law completely pre-empts the state law claim (ex. ERISA cases, LMRA cases)

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Misjoinder, Improper Joinder, and Fraudulent Joinder

F.R.C.P. 21: Misjoinder and Nonjoinder of Parties(1) In cases of misjoinder, dismissal of the entire case is NOT appropriate (2) The court can dismiss the misjoined parties OR sever the claimsFraudulent joinder

(1) fraudulent procedural misjoinder: where D argues that the spoiler was procedurally misjoined – Rule 20 (ex. two Ps join separate claims to defeat diversity and prevent removal to federal court) (where D argues that the spoiler was procedurally misjoined)

(2) traditional fraudulent joinder: where D attacks the substantive basis for P’s claim against the spoiler (D attacks substantive basis for the P’s claim against the spoiler)

(a) SC developed the fraudulent joinder doctrine to prevent Ps from wrongfully joining in-state or non-diverse Ds to defeat removal jurisdiction.

(b) D bears the burden of proving fraudulent joinder (D must also prove SJMJ exists). (i) Fraudulent is a terms of art. Evidence of P’s intent is generally NOT required.

(c) various tests for when joinder is “fraudulent”:(1) when P has NO r’ble basis for the claim against the spoiler (2) when P has NO possibility of recovering from the spoiler in state court (3) 5 th Circuit : when P has NO r’ble possibility of recovering from the spoiler in st. ct. (4) when P fails to state a claim against the spoiler

(d) If joinder is fraudulent, the diverse D may remove (w/o the spoiler’s consent and claiming complete diversity in the notice of removal). (1) The district court will ignore the citizenship of fraudulently joined D, assume

jurisdiction, and dismiss the claim against the spoiler. The diverse D may remove

(e) 5 th Circuit case of Smallwood: (R.R. argued fraudulent joinder b/c P’s claims against MDOT preempted by FRSA)(1) Fifth Circuit renamed it “improper joinder.” P’s motive or purpose not relevant.(2) TEST: D must demonstrate no r’ble basis for the trial ct. to predict that the P might

be able to recover against in-state or non-diverse D (3) Ct. should be able to resolve most motions to remand w/o piercing the pleadings

(a) Policy: broad discovery would support P’s claim & imply ct. should just remand(b) other piercing the pleadings options: (i) none, (ii) limited, (iii) broad piercing

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(4) In other cases, a summary inquiry may be appropriate, but only to identify the presence of discrete facts that would determine propriety of joinder

(a) (ex. in-state Dr. didn’t treat P, or in-state pharmacist didn’t prescribe drug, or a party’s residence is not as alleged - all facts that can be easily disproved)

(b) this grants very tailored discovery only after showing of necessity, under tight control of judge (limits removal b/c can’t look too far beyond the complaint)

(5) Established the “common defense or common defect” rule that prevents removal: if P’s claims against all Ds would be preempted, P hasn’t fraudulently joined MDOT – it’s just a totally bad case (circuits are SPLIT over this rule - other circuits say can pierce pleadings)(a) Ex. of common defect: that drug didn’t cause heart attack (common defect to

claim against Dr. and manufacturer)

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Supplemental Jurisdiction

28 U.S.C. § 1367 (1990) Supplemental Jurisdiction (to settle issue raised in Kroger)(a) If the court has original juris. over the civil action, the court has supplemental juris. over a

claim that is part of the “same case or controversy”(b) LIMITATION: only in diversity cases, there’s NO supplemental juris. for: (i) claims by P against persons made a party pursuant to 14, 19, 20 (joinder of multiple Ds)

or 24 (ii) claims by persons proposed to be joined as Ps pursuant to 19 or 24 when juris. is

inconsistent w/ diversity requirements(1) (the first P must meet the $75K requirement for diversity juris., but other Ps do NOT

have to b/c they have supplemental juris.)Some people argue that this is an over-broad rule.

(c) the court may decline to exercise supplemental juris. if (i) the claims raise novel or complex issue of State law (ii) the state law claim predominates (iii) the court has dismissed all claims w/in its original jurisdiction andonly the

“supplemental” state law claim remains (vi) exceptional circumstances or compelling reasons(d) Supplemental jurisdiction limitation under 1367(b) doesn’t apply to the claims between a

defendant & a third-party plaintiff- defendant ought to be able to sue a 3d P.P. in whatever jurisdiction it is sued. The only party that we are worried about manipulating jurisdiction is the plaintiff.

(e) NOTE: If there is an independent basis for the claim to be joined, don’t worry about supplemental jurisdiction!

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Consolidation and Separate Trials

F.R.C.P. 42: Consolidation & Separate Trials(1) the court has discretion to consolidate actions involving common Qs of law or fact (if they

are both w/in the court’s jurisdiction) (a) (the consolidation can be for purposes of trial and/or discovery)

(2) the court has discretion to order separate trials even if the claims are properly joined

F.R.C.P. 13(i) & 20(b): Court can order separate trials- Remember, purpose of rules is liberal amendment & liberal joinder. If that can’t be achieved, then the court can order separate trials.

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Part 3: Discovery

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Timeline for Discovery and Case Management OrderI. File the complaint & serve the Defendant(s) II. D files/serves answer or Rules 12 motionIII. Local Rule 16.1(A): court issues an order setting the deadline for initial atty

conference and later date for telephonic conference w/ the magistrate judge IV. Conduct a Rule 26(f) conference w/ the other lawyer or the pro se party

(1) basically, supposed to talk about any issues you anticipate & draft a proposed scheduling order w/other lawyer

(2) (a) Lawyers and unrepresented parties are to consider (can do by telephone): (i) Nature and basis of their claims & defenses (usually evident from the

complaint) (ii) Possibility for a prompt settlement/resolution (iii) Make arrangements for required disclosures (time deadlines) (iv) Discuss issues relating to preservation of evidence, especially

electronic evidence (v) Develop proposed discovery plan

- (list under 26(f), includes: 1. timing of initial required disclosures, 2. scope and time for discovery as well as whether it

should be phased or limited; 3. electronic discovery (form of production); 4. whether there is an agreement to authorize assertion

of privilege after production (ex. after inadvertent disclosure – default rule is that it is waived);

5. any agreed departure from discovery rules))(3) NOTE: the discovery rules are default rules; the parties can agree to narrow or

expand the scope of discovery and that agreement is enforceable. (4) PRECAUTION : discuss at the conference and put out a “litigation hold” to protect

electronic info even if the litigation is pending and hasn’t been filed (a) Otherwise, if the evidence is destroyed, the jury may be instructed it

raises an inference the evidence was unfavorable to the destroying party(5) Local Rule 26(e) for N. District of MS also requires discussion of:

(i) Principal legal/factual disputed issues and evidentiary basis for claims/defenses

(ii) Which case track (expedited, standard, complex, administrative, mass tort) – which determines the timing of the case

(iii) Will an early motion resolution impact the scope of discovery (iv) Discovery limitations, deadline, phases (ex. PJ issues b/f get to the

merits of the case)

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(v) whether you consent to trial by Magistrate (may be sooner than Art. III judge)

(vi) Settlement (the conference is automatically set during the middle of discovery, but upon request, you may be permitted to schedule an earlier conference w/ the magistrate to settle)

V. Prepare and submit proposed discovery/case management plan(1) During and after the Rule 26(f) conference , lawyers/parties should prepare

proposed discovery/case management plan(2) F.R.C.P. 26(f) ; Local Rule 16.1(B)(6): the proposed plan must be submitted to court

within 14 days of Rule 26(f) conferenceVI. Parties must submit a confidential memo to Magistrate

(1) local Rule 16.1(B)(6): memo must contain an explanation of the case, candid appraisal of the claims, and candid evaluation of the possibilities for settlement

VII. F.R.C.P. 26.1(A)(1) : Exchange initial required disclosures w/in 14 days of Rule 26(f) conference, including: (be sure to serve disclosures on all parties)

(1) name, address and phone number of persons likely to have discoverable info that disclosing party may use to support its claims or defenses, UNLESS solely for impeachment, indicating subjects of the information

(2) copy or description of docs , electronically stored info, and tangible things in possession, custody or control of disclosing party that may be used to support its claims or defense, UNLESS solely for impeachment

(3) computation of damages, if a claimant (must also make supporting docs or evidentiary material available for inspection and copying)

(i) some (non) economic dmgs don’t have to be determined – (ex. you can say “emotion distress dmgs. as to be determined by the jury”)

(4) copy of insurance agreement that may provide coverage for part or all of the judgment, if you are defending a claim (affects and encourages settlement)

VIII. F.R.C.P. 16(b) : case management conference w/ judge (via telephone in MS)IX. F.R.C.P. 16(b) : court enters case management order/scheduling order w/in 14 days

of conference (1) (order sets forth your proposed plan & its numerous discovery and motion

deadlines)X. Then, litigation is controlled by case management order/ scheduling order

(1) (can move to extend time if show really good reason)

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Overview of Informal and Formal Discovery1) Informal discovery can be conducted at ANY time and includes:

(a) investigations (hire PI, search internet sources, interview wit.) & get public docs (look at pleadings from old cases to see what other parties pled, etc)

(2) Formal discovery (is NOT permitted until after the conference) includes:(a) Mandatory disclosures of

F.R.C.P. 26(a)(1): Factual matters F.R.C.P. 26(a)(2): Expert info F.R.C.P. 26(a)(3): Pretrial accomplished by completing final pretrial order in MS (witnesses you will call, depos you will introduce, etc.)

(b) Party-initiated discovery ofFactual matters [F.R.C.P. 26 (b)(1), 30, 33, 34, 35, 36, 45]Expert info [F.R.C.P. 26(b)4, 30]

c. Three waves of Mandatory disclosures:i. Fed.Rule 26(a)

1. Fed.Rule 26(a)(1)(A)a. Names of individuals likely to have informationb. All relevant documents, electronically stored information, and

tangible things “that the disclosing party may use to support its claims or defenses

c. Any insurance agreements indicating that an insurer will satisfy all or part of the judgment

2. Fed.Rule 26(a)(2)a. Information regarding any experts they may use at trial

3. Fed.Rule 26(a)(3)a. Information regarding any evidence that may be used at trial

i. Names of witnessesii. Documentary or exhibit evidence intended to be used

(3) F.R.C.P. 26(a)(5): permissible types of formal discovery a/f the Rule 26(f) conference(b) Depositions (oral – Rule 30)(c) Written interrogatories (Rule 33)(d) Requests for production of docs/tangible things, entry upon land, ESI (Rule 34)(e) Physical and mental exams (Rule 35)(f) Request for admission (Rule 36)(g) Subpoena witnesses, docs or to permit inspection of land (Rule 45)

(4) If you w/hold evidence based on impeachment, the risk is that the witness doesn’t take the stand or testifies and tells a consistent story, in which case you can’t use the evidence

(5) You only file a notice of discovery w/ the court and NOT the actual discovery unless you’re using it for a motion for summary judgment

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F.R.C.P. 26(d): Timing of party initiated discovery(1) any time after the atty conference required by Rule 26(f), unless parties stipulate to conduct discovery earlier(2) party can conduct discovery in any sequence desired unless otherwise ordered(3) BUT one party’s failure to respond does NOT give the other party a right to refuse to

respond(4) The parties may conduct discovery simultaneously

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Scope of Discovery

F.R.C.P. 26(b)(1): the Scope of Discovery(1) any matter , NOT privileged, that is relevant to the claim or defense of any party (thus, the

pleadings effect discovery)1. This is why you may want to plead claims more broadly2. the fact that you communicated something to your lawyer is what is

privileged – not the underlying fact(2) for good cause shown, the ct. may order discovery of any matter relevant to the subject

matter of the litigation (a) Thus, if D objects discovery is NOT relevant b/c P is trying to find out if there is

enough evidence for a new claim, then go to the court and ask for discovery relating to the SJM

(3) Relevant info. does NOT have to be admissible at trial, it just has to be r’bly calculated to lead to the discovery of admissible evidence (hearsay is NO objection)

F.R.C.P. 26(b)(2)(C) – Limits on discovery(1) If discovery is unr’bly cumulative or duplicative OR is obtainable from some other source

that is more convenient, less burdensome or less expensive (NO excuse available elsewhere)(2) If the party seeking discovery has had ample opportunity to obtain the info. sought(3) If the burden/expense outweighs the likely benefit taking into account the needs of the

case, the amt. in controversy, the parties’ resources, the importance of the issues at stake, and the importance of the proposed discovery (court has discretion to weigh these factors in determining if info is discoverable)

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Electronic Discovery

F.R.C.P. 26(b)(2)(B): Limits on electronic discovery - the STEPS of how it plays out:(1) Party need NOT provide discovery of electronically stored info. from sources that it IDs as

NOT r’bly accessible b/c of undue burden or cost (a) BUT the party must sufficiently describe the info so requesting party can evaluate

whether info really is too difficult to access)(2) The requesting party may then move to compel (but only after conferring with the other

side - you must confer every time b/f moving)(3) The responding party must then demonstrate that the info. is NOT readily accessible(4) The court may nevertheless order discovery if the requesting party demonstrates good

cause (ct. has great discretion in ordering discovery & in deciding who should pay)(5) Court can specify conditions

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Objections to Discovery

RECAP: may w/hold info or object to discovery based on: (i) NOT relevant (ii) Unduly burdensome, costly, etc.(iii) Privileged (iv) Solely for impeachment

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Discovery PrivilegesPrivileges(1) In cases based on state law (i.e. diversity cases), st. law governs privilege(2) In cases based on federal law, federal C/L governs privilege. (3) Types of privileges :

(i) Atty/client - absolute privilege protecting the communication, NOT underlying facts(a) docs are only protected IF created & given to the atty for the purpose of furthering the representation - Otherwise, documents NOT protected

(ii) Doctor/patient (waived if you plead emotional or physical dmgs.) (iii) Clergy privilege - an absolute privilege if properly asserted(iv) Spousal privilege(v) Gov’t privileges (executive, state secret, informant)

(a) some are QUALIFIED & ct. can waive after weighing privilege vs. need for info (vii) 5 th Amendment – an absolute privilege

(4) Beware of waiver issues: implied (ex. other person in room w/ atty), express, inadvertent

F.R.C.P. 26(b)(3) – Work product (NOT an absolute privilege)(1) “work products” are docs/tangible things that were prepared in anticipation of litigation or

for trial by a party or its representative (atty, accountant, insurer, agent) (a) applies even if the report was written in preparation of a separate lawsuit (b/c written in

prep. of any future lawsuit too and to truly protect the work protect doctrine)

(2) “work products” can ONLY be discovered upon a showing that the party seeking discovery has a substantial need for the materials AND is unable to obtain the equivalent by other means w/o undue hardship

(3) Even if such a showing is made, mental impressions , conclusions, opinions or legal theories of atty or other representative are protected (should be redacted).

(4) A party can always obtain his or her own statement or a statement of his or her agent (5) A non-party can always obtain his own statement

If W gives a depo. to another lawyer, the witness can obtain that & give it to you, even though YOU can’t ask for it b/c it’s protected as WP

(6) Under Hickman, the work product objection extends to questions asked in depositions, even though not provided for in the Rules b/c not docs or tangible things

(7) Whether reports generated b/c of customer complaints are protected by work product, may depend on if reports are routine (NO protection) vs. not routine (may be protected)

F.R.C.P. 26(b)(5)(A) – Privilege/work product log

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(1) if you w/hold info on the grounds that it is privileges or protected by work product, you must describe the nature of the documents, communications, etc. to enable opposing party to assess the applicability of the privilege or work product protection

F.R.C.P. 26(b)(5)(B) – Describes the procedure for recall of inadvertent disclosure of privileged and work product info. (1) the receiving party must return, sequester, or destroy all copies until issue is resolved

(a) (the receiving party may submit the info under seal for the court to determine if waived, or protected by work product or atty client privilege)

(b) (you can also agree ahead of time (b/f disclosure, at attorney conference) on the effect of inadvertent disclosure)

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Required Expert DisclosuresF.R.C.P. 26(a)(2): Required Expert Disclosures: (1) Identity of any expert witness who may testify at trial(2) For an expert retained or specially employed to provide expert testimony (independent

expert) OR an employee who regularly provides expert testimony , You must disclose an expert report prepared and signed by witness

(a) the report must include:(i) opinions, bases and reasons therefore(ii) ALL data and information CONSIDERED (data & facts @ 12/10)(iii) exhibits to be used(iv) qualifications (CV)(v) publications during last 10 years(vi) compensation(vii) list of cases in which expert has testified live or by deposition during last 4

years (good for impeachment purposes)

(4) Must always ID treating doctor who is going to testify , but SPLIT over whether report is required (so check local rules)(a) MS: NOT independently retained, so NO report required, but DO have to disclose the

treating Dr.’s opinion and the bases therefore

F.R.C.P. 26(b)(4)(A): Additional discovery - Depositions of experts(1) Party may depose an expert who has been designated to testify at trial (2) BUT if it’s an expert who is required to disclose a report, then the deposition must be taken

after disclosure (i.e. a/f the report is provided). If no report required, you can the deposition at any time.(a) the party seeking discovery usually pays the expert fees for his time in responding to the

deposition - 26(b)(4)(C) (pay fees, travel, expenses, cost of prep for depo.)1. NOTE: If a non-testifying expert & the other side can show that it’s a rare

expert, then the court must require the other side to pay same costs that the retaining side incurred

(3) w/ respect to expert who has been retained or specially employed but has NOT been designated to testify at trial, discovery may be had only upon a showing of exceptional circumstances indicating it is impractical for party to obtain facts or opinions by other means, & if showing is made, party may depose expert by interrogatory or deposition)

Proposed Rule Changes Regarding Experts:1. Communications between an expert required to give a report and the party’s lawyer

would be protected from discovery by Rule 26(b)(3) except for communications that: a. are related to expert’s compensation b. identified facts or data the party’s attorney provided the expert and that the

expert considered in forming his or her opinion

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c. identified assumptions that the party’s attorney provided and that the expert relied upon in forming his or her opinion

2. For expert witnesses who are not required to provide a report, 26(a)(2)(A) disclosures would include identity of expert, subject matter on which he is expected to testify, & summary of facts & opinions to which he will testify.

3. Drafts of expert reports & export disclosures would be protected from discovery4. Changes the report requirement to “facts or data” instead of “or other info”

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Supplementing Discovery

F.R.C.P. 26(e) - There is a duty to timely supplement IF:(1) a party learns the info disclosed pursuant to 26(a) (i.e. required disclosures) is incomplete

or incorrect in some material respect and the other party is unaware (the duty to supplement extends to the expert report and deposition given by expert from whom a report is required, does NOT extend to experts only IDed or fact witnesses)

(2) A party learns that the response to an interrogatory, request for production of doc or request for admission is incorrect or incomplete in some material respect and the other party is unaware.(note: these are written discovery; so not applied to depo)

(3) Court order (4) No duty to supplement a fact witness’s deposition even if you are going to use it – only an

expert’s!!!

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Protective Orders for DiscoveryF.R.C.P. 26(c): Protective Orders (ex. protect trade secret from the public, deposing to harass, embarrassment, oppression, undue burden or expense)(1) Upon showing of good cause, court may enter protective order:

(a) Preventing discovery (b) Limiting discovery(c) Sealing a deposition or other trade secret , confidential information

(2) The motion for protective order requires certificate that movant has conferred in good faith w/ the opposing party

(3) Court must award reasonable expenses if the opposing party’s position was not substantially justified unless such an award would be unjust or the moving party failed to confer in good faith

(4) Local Rule: The moving party must obtain ruling b/f a scheduled deposition in order to prevent it (i.e. he must get the prot. order & not just move for it as in other juris.)

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Rule 11 for DiscoveryF.R.C.P. 26(g): Rule 11 for discovery(1) Rule 26(a)(1) and (3) required disclosures must be signed by the lawyer or unrepresented

party. Signature certifies that to the best of your knowledge, info and belief, formed a/f r’ble inquiry, the disclosure is complete and correct at the time it is made

(2) Every discovery request, response, and objection shall be signed by atty or unrepresented party. Signature certifies that to the best of your knowledge, info and belief, formed a/f a r’ble inquiry, the request, response, or objection:(a) is warranted by current rules, existing law or good faith argument for extension or

modification of existing law (basically, saying it is proper w/in R. 26 disc.)(b) is NOT imposed for an improper purpose(c) is NOT unduly burdensome or expensive given circumstance of the case, prior

discovery, amount in controversy, & importance of issues

(3) If there is NO substantial justification for the certification, the court must sanction the offending party and/or the signing atty (unlike other sanctions, this sanction is mandatory)

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InterrogatoriesInterrogatories (1) May be served anytime after the 26(f) attorney conference - F.R.C.P. 26(d) (2) Interrogatories may be served upon any PARTY (doesn’t have to be adverse)(3) Each P is limited to 25 interrogatories (including sub-parts), but local rules or the scheduling

order may designate a specific number(a) MS: the number is determined by the case track or you can ask the ct. for more Qs

(4) Response must be served within 30 days or you can ask the ct. for additional time(a) Answers are to be made under oath and signed by the person making them. (the atty

often drafts the answers though, which the client approves, signs, and swears to)(i) corp. agent responds based on all corp. knowledge and doesn’t have to certify the

answers are based on his first hand knowledge. (b) Objections shall be stated w/ specificity and shall be signed by attorney (certifying the

objection is based on good law). If not stated, they are waived unless good cause is shown.(i) You must answer to the extent not objectionable.(ii) For “contention” interrogatories (ID facts and witnesses that support your contention

that…), SOME will allow you to respond that you will answer after discovery, OTHERS say partially answer now and supplement later

(5) If the answer can be derived from business records , including electronic data, and there is an equal burden, then responding party can produce records w/ sufficiently detailed specification (so that interrogating party can locate info as readily as responding party) (must give access to records too)(a) BEWARE: letting opposing counsel sift thru your records may result in inadvertent

disclosure and waiver of privilege(6) Common objections to interrogatories include:

(i) NOT relevant to claims or defenses (outside scope)(ii) Overly broad, unduly vague and ambiguous(iii) Cumulative, burdensome, oppressive, costly (Rule 26(b)(2) limits)(iv) Privileged(v) Work product or trial prep privilege(vi) Non-discoverable expert info(vii) Not reasonably calculated to lead to the discovery of admissible evidence

d. Interrogatoriesi. May only be directed to parties

ii. May be composed by parties working with an attorneyiii. Limited to 25 interrogatories, including all discrete subparts, on adverse party,

except with leave of court or by written stipulation. Fed.Rule 33(a)(1)

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Production of DocumentsF.R.C.P. R. 34: Requests for Production of Documents (1) A party may request to inspect, copy, test or sample documents, electronically stored info or

tangible things within the other side’s control (including data or data compilations stored in any medium from which info can be obtained, translated if necessary, by respondent into a r’bly usable form). (You may include definitions.)

- Request must be sufficiently specific, including time & place for inspection, & ESI must be requested in specific form.

(2) Requests can be served by any party on any party after the Rule 26(f) conference. The number of requests are often limited by the scheduling order or local rule.

(3) The propounding party must identify document or category with r’ble particularity.(4) the propounding party may request the form in which electronic info is to be produced . Responding to Requests for Production of Documents (1) Responding party must serve response in 30 days. Responding party must produce

responsive documents, ESI, &tangible things which are in its possession, custody or control or state an objection within 30 days . (a) You can’t object that you don’t have the docs, if they’re in your control, you must get

them or sign a release so that the other side can get them(b) If objection is partial, must produce in response to the part of request that was

unobjectionable.(2) Common objections are the same as those raised in response to interrogatories. Also,

responding parties may object to the requested form of electronic data or may object to production on grounds that the ESI is not reasonably accessable b/cof undue burden or cost. Attorneys must sign the objections.(a) TIP: after objecting, produce anyway so you are not prevented from using the info

yourself later.(b) If the responding party objects (for example, that the electronic data is “not readily

available), the burden shifts to the propounding party, who must then:(1) first try to work it out w/ opposing counsel (ex. propose some cost sharing plan)(2) then if that fails, move to compel, but you risk sanction if you fail or being ordered to

pay all

(c) Common objections for requests for production of documents (same as saw with interrogatories):

1. Beyond scope of discovery2. Privileged, including attorney-client3. Work-product4. Not likely to lead to discovery of admissible evidence5. Non-discoverable expert info6. ADDITIONAL OBJECTION that ESI is not reasonably accessible due to undue burden or cost.

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(3) If the responding party objects to the form, the responding party must state a basis for the objection AND indicate the form in which it intends to produce the info .

(4) Documents must be produced either as they are kept in usual course of business OR labeled so that they are responsive to requests.

(5) If a request for electronically stored info doesn’t specify a form, the responding party must state the form it intends to use AND produce it in the form or forms in which it is ordinarily maintained OR a form or forms that are reasonably usable. (a) Party only needs to produce electronically stored info in ONE form.

a. Discovery of Documents and Thingsiv. Nonparties may also be subject to document delivery under subpoena of the

court. Fed.Rule 45(a)(1)(A)(iii).v. Also for nonparties, Court may order production only on specified conditions

designed to alleviate any resulting hardship, such as reasonably compensating the answering party. Fed.Rule 45(c)(3)(C).

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Requests for Entry Upon LandF.R.C.P. 34(a)(2): Requests for Entry Upon Land A party can request permission to enter land or other ppty in possession or control of party for the purpose of inspection, measuring, surveying, photographing, testing or sampling.

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DepositionsF.R.C.P. 30: Depositions(1) Upon notice, parties can be deposed; non-parties must be subpoenaed (if they won’t come

when asked - good idea to try this first)(2) You must give a r’ble amount of notice to all parties including: (a) the name of person to be deposed (b) date, time and location of the deposition, and how it will be recorded(3) To the notice, you can attach a Rule 34 request for docs from a party and give them 30 days

to produce (can do this for corporations too) (a) For non-parties, you must use Rule 45 to subpoena them to bring docs

(4) Characteristics of a deposition: (a) taken under oath and other people are free to attend (b) if used at trial, will be presented to the jury in the form taken (c) is limited to 7 hours on one day, but you can agree to a longer time (d) PROCEDURE: deposer gets to Q, then the opposing side can engage in unlimited cross-

examination, and then the deposer can redirect (e) To avoid continual objections, you can stipulate at the outset that all objections will be

reserved other than form or immediately remediable (those you must raise and afford an opportunity to cure)(i) PROPER objections include:

(1) that info is protected by a protective order(2) privilege OR(3) that you will move for relief from the ct. b/c the deposition was made in bad

faith, for the purpose of harassment, etc.(ii) if you terminate the deposition but lose the motion, you may have to pay the cost of

the motion and of reconvening the deposition (iii) Irrelevancy and hearsay are NOT proper objections

(f) the deponent has an opportunity to read and sign the deposition, as well as an opportunity to correct mistakes or alter a response

a. Can instruct your client not to answer during a deposition when the deposing party is acting in bad faith, there is privilege, or when you already have a protective order and when you want to file a motion under 30(d)(3). You shut down the deposition to file this motion

i. Risk is that if your motion is not well founded, you pay costs b. All parties should be at the deposition

i. Can meet with your expert during breaks to determine what questions you should ask or what you need to re-ask.

c. Court reporter will transcribe the depo and give it to the deponent. The deponent then has 30 days to make changes to the depo on an errata sheet

i. Some courts don’t allow substantive changes to the depoii. If they do you can use the original for impeachment

iii. You always want your client to read and sign the depo

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d. If the non-party doesn’t show up, you are stuck with costs, so you should probably subpoena the witness if you are worried they won’t show

F.R.C.P. 30(b)(6) Corporate depositions(1) Noticing party must describe w/ r’ble particularity the matter on which exam is requested(2) The corporation must then designate officers/agents to testify in its behalf (3) Designee shall testify to matters known or r’bly available to corp.(4) Notice alone is sufficient to compel appearance of a high level official or an employee in his

official capacity, but you must have a g.f. argument that the testimony you seek is relevant

(a) For a low level employee, you need notice and a subpoena to compel appearance (b) BEWARE: if you don’t make a required subpoena and the deponent doesn’t appear , the

noticer may have to pay costs for others’ appearances

F.R.C.P. 32 Use of Depositions(1) a depo may be used to impeach a witness(2) a depo of an adverse party may be used for any purpose (includes 30(b)(6) depos of parties

and of high level employees of a corp. party if testifying in their official capacity). (3) a deposition may be used for any purpose if the witness is unavailable

(a) EX. dead, ill, imprisoned, more than 100 miles from court, (or about to leave the country), couldn’t be located to be served with subpoena, etc.

(4) If a party offers a portion of a depo, the opposing party can request the offering party to offer other parts of the depo which should fairly be offered at the same time.

(5) If know you will use depo at trial, & are using docs in depo, must lay foundation for the documents as you would have had to do at trial

a. Depositions (Misc. Notes)vi. Can be used in trial for witnesses more than 100 miles from the place of trial. Fed.Rule32(a)

(4)(B)vii. Normally must wait for certain time period after commencement of action, except:

1. Deposition may be taken to perpetuate testimony of persons who most likely will not be available at trial. Fed.Rule 27

viii. Non party can only be commanded to appear where suit is lodged only if within the subpoena power of the court. Fed.Rule 45(c)(3)(A)

ix. Limited to one day of seven hours. Fed.Rule 30(d)(1)x. Can do written depositions

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Requests for AdmissionsF.R.C.P. 36 Requests for Admission (limited to a party)(1) a party can propound requests seeking another party to admit the truth of any matters w/in

the scope of discovery (permissible examples: opinions, fact, applications of law to fact, authenticity of any documents)(a) same objections as for interrogatories apply (irrelevant, privileged, etc.)

(2) the propounding party must set forth each matter separately(3) the responding party must serve a response w/in 30 days OR the requests will be deemed

admitted. (this is the sanction for failing to timely respond)(4) The responding party can object, admit, deny, partially admit and deny, or indicate lack of

information/knowledge after a r’ble inquiry (5) any matter admitted is conclusively established UNLESS the court permits w/d or

amendment b/c presentation of the merits will be served by the withdrawal and its w/d will NOT prejudice the other party

(6) If the propounding party believes the response is insufficient or that an objection is unwarranted, the propounding party may move to compel.

(7) A party who improperly denies a request may be ordered to pay the costs, including attorney’s fees, incurred by opposing counsel in making the proof unless the court finds the request was objectionable, the request was not important, the party had reasonable ground to believe it would prevail on the matter, or there was other good cause for the failure to admit. [Rule 37(c)(2)]

A party cannot object to an admission on the ground that it involves a core issue in the case. Fed.Rule 36(a)(5).

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Mental or Physical ExaminationsF.R.C.P. 35 Examinations(1) a court may order a party (or a person w/in a party’s control) to submit to exam (i) upon a

showing of good cause (ii) when his mental or physical health is in controversy(2) Upon request by the examined party, the examining party must provide a detailed written

copy of a report by the examiner (at the examiner’s cost)(3) The examined party must then provide copies of similar reports to the examining party

(both previous and subsequent) (ex: medical records)(4) By requesting copy of the report, the examined party has waived privilege.

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SubpoenasF.R.C.P. 45 Subpoenas

(1) parties can use subpoenas to require a person (non-party) to appear and give testimony at a deposition, hearing or trial(a) the court where the hearing or trial is to be held must issue subpoenas for witnesses

(2) parties can use subpoenas to require a person to produce docs, ESI, and other tangible things in their possession, custody, or control

(3) parties can use subpoenas to requires a person to permit inspection of premises(a) the court in the juris. in which the deposition is to be held or production or inspection

conducted must issue subpoenas

(4) Subpoenas must be delivered by a person 18 or older, non-party to suit(a) the subpoena can NOT be left w/ persons at the residence/business in SOME juris.

(personal service is required in some jurisdictions)(b) the serving party must tender witness fee and mileage if the person is to appear

(5) If subpoena is for production or inspection, notice must first be served on all parties(7) the subpoenas may be served w/in the district, w/in 100 miles of the hearing, depo.,

production or trial, OR at any place w/in the state where a subpoena could be served under st. law

(8) The person may object in writing to subpoena for production and inspection w/in 14 days of service. The serving party must then file a motion to compel.

(9) Docs must be produced as they are kept in the normal course of business OR be labeled to response to requests. The responding party must sufficiently ID materials being withheld based on privilege or work product

(10) Rules provide procedure for recalling privileged or work product material (11) Rules for electronic data:

(a) subpoenas may specify the electronic form (b) Responding party must produce electronic data in a form in which it is ordinarily

maintained OR in a r’bly usable form (only ONE form is required)(12) Responding party may object on grounds that info is NOT readily accessible .

(a) Requesting party may then move to compel. (b) Responding party bears burden of proving NOT readily accessible. (c) Even if such a showing is made, the court may order discovery upon a showing of good

cause.

(13) Person served with the subpoena may timely move to quash the subpoena(14) The court SHALL grant such motions where the moving party (i) wasn’t given enough time

to respond, (ii) docs are privileged or otherwise protected, (iii) production will cause undue burden, OR (iv) the subpoena requires the person to travel too far.

F.R.C.P. 45(c)(3)(A): Non-parties must travel 100 miles for a deposition and anywhere w/in the st. for trial

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(15) The court MAY grant other such motions if party issuing subpoenas fails to demonstrate substantial need (a) EX. where necessary to (i) protect trade secrets, (ii) where necessary to protect un-

retained experts who have NOT been paid for their testimony, OR (iii) if a person NOT a party nor an officer of party is required to incur expenses to travel more than 100 miles to trial [F.R.C.P. 45(c)(3)(B)]

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Discovery SanctionsF.R.C.P. 37 Sanctions(1) Motion to compel must be accompanied by a good faith certificate(2) IF the court grants the motion to compel or if the disclosure is made after motion was filed ,

the court MUST award expenses and fess UNLESS: (i) no g.f. certificate; (ii) the nondisclosure or objection was substantially justified ; or (iii) the sanction award would be unjust

(3) IF the court denies the motion to compel , the court MUST award expenses and fees to the party opposing the motion UNLESS: (i) the movant was substantially justified or (ii) an award would be unjust

(4) If a party refuses to comply w/ court order compelling discovery , the court MAY award sanctions (deem facts established, excluded evidence, strike pleadings, dismiss action, etc.) OR hold the offending party in contempt (except for failure to submit to R. 35 exam).

(a)Instead of or in addition, the court may also order the party/atty to pay expenses, including attys’ fees, incurred as a result of failure to comply (37(b)(2)(C))

(5) If a party fails to make required disclosures OR fails to supplement discovery, the party may NOT use that witness or documentary evidence UNLESS there is substantial justification for the failure or the failure is harmless (37(c))

(a) In addition court may award expenses and fees, inform jury or impose other sanctions, including the more severe sanctions authorized by 37(b)(2)(A)(i)-(vi).

(6) A party who improperly denies a request to admit an allegation SHALL be ordered to pay the costs, including attorney’s fees, incurred by opposing counsel in making the proof (to establish that fact/truth) UNLESS the court finds: (i) the request was objectionable, (ii) admission was unimportant, (iii) the party had

reasonable ground to believe it would prevail on the matter , OR (iv) there was other good cause for the failure to admit. [F.R.C.P. 37(c)(2)]

(7) Party that fails to appear at deposition or fails to respond to interrogatories or requests for production MUST be sanctioned unless:(i) the party’s failure was substantially justified or (ii) an award would be unjust.- Sanctions may include an award of reasonable expenses or other more serious sanctions authorized by 37(b)(2)(A)(i)-(vi)).

(8) No sanctions for failing to produce ESI lost as the result of routine good-faith operation of electronic information system.

(9) Party that fails to participate in creation of discovery plan can be sanctioned

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Part 4: Concluding the Dispute

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Summary JudgmentF.R.C.P. 56: Summary Judgment(1) ANY party can move for summary judgment(2) A party can move for SJ at any time until 30 days after close of all discovery

1. Subject to local rules2. In N. MS, on scheduling order, will usually give 30 days after discovery for SJ motion

(3) The defending party can move for summary judgment at ANY time; the claimant must wait 20 days after the commencement of the action OR can move at any time after service of a motion for summary judgment by the adverse party

(3) In ruling on the motion, the judge will consider:(a) affidavits, which must be based on personal knowledge, admissible, affiant competent to

testify, sworn or verified(b) depositions(c) admissions(d) pleadings(e) answers to interrogatories(f) documents attached to affidavits or depositions (they must be admissible and not

hearsay)(g) live oral testimony

(4) The standard to be used by the trial court:(a) Summary judgment should be granted if there is NO genuine issue of material fact and

the moving party is entitled to judgment as a matter of law (i) Genuine issue: If reasonable minds could differ, sufficient evidence so that a jury

could go either way(ii) Material: relevant to a claim or defense

(5) The party that will bear the burden at trial generally bears the burden of coming forward w/ evidence during the motion for SJ (the burden of production) (a) the claimant (P) generally bears the burden of introducing evidence to support ALL

elements of the claim(i) thus, D is entitled to SJ as a matter of law when P has failed to prove such an essential

element(ii) P is only entitled to SJ when P has proven all his elements, and D has no defense

(b) D generally bears the burden of producing evidence to support ALL elements of a defense OR he can simply point to P’s lack of evidence supporting an essential element of the claim(i) Thus, Ds are more likely to win SJ

(6) Generally, the court should NOT weigh the evidence, find facts OR make credibility determinations

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(7) the court should review the evidence (and the inferences to be drawn therefrom) in the light most favorable to the non-moving party

(8) There is a genuine issue of material fact when the fact at issue may affect the outcome and a r’ble jury could find for the non-moving party

(9) (b/c this is a legal issue), the standard on review on appeal is de novo

(10) When a motion is properly made and supported, opposing party must demonstrate that there is a genuine issue for trial

(10) In 1986, the SC issued three opinions addressing summary judgment(a) Anderson v. Liberty Lobby (Ps were public figures suing Ds for defamation)

(i) HELD: The evidentiary burden for summary judgment is the same that P will be required to prove at trial (1) (thus, P’s burden of actual malice by clear and convincing evidence was

incorporated in to the sum. judg. review in this case)(2) Example: In a defamation case, P must at trial show clear & convincing evidence

of actual malice. On a motion for summary judgment, the standard should thus be does the P have clear & convincing evidence of actual malice?

(b) Celotex Corp. v. Catrett: P claims exposure to asbestos, but didn’t ID any witness regarding such exposure)(i) it is sufficient for D to point to specific problems w/ P’s proof and state that P

cannot prove one of his required elements(ii) D need NOT affirmatively rebut all of the elements of P’s claim(iii) Requiring D to negate P’s claim would defeat purposes of SJ- to dispose of claims

for which there is inadequate evidentiary support(c) Matsushita Electronic Industrial Co. v. Zenith Radio Corp.: P claims D conspired to drive

out U.S. manufacturers by keeping prices artificially low(i) It is appropriate for the Ct. to assess the plausibility of P’s theory when deciding

how much evidence is needed to overcome the D’s motion for SJ (1) EFFECT: the more implausible the theory, the more evidence P needs

(11) After the trilogy of 1986 SC cases, many observers believe that federal district courts are more likely to grant summary judgment

(12) Partial summary judgment may be granted for:(a) liability, so that the trial only considers dmgs.(b) punitive dmgs. (to reduce the settlement value)(c) a single claim or defense

(13) F.R.C.P. 56(f): If D files for SJ too soon (and P can’t fully respond b/c has not had chance to conduct full discovery)

(a) P must file an affidavit stating why it cannot fully respond to D’s motion for SJ, (i) indicating what info it expects to uncover in upcoming discovery (ii) that would preclude SJ and (iii) why the discovery has not already occurred

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(b) by submitting this affidavit, P can ask the court to issue a denial or continuance pending discovery (i.e. ask the ct. to postpone ruling on the summary judgment until after discovery is complete)

(14) Party who submits affidavits in bad faith or solely for delay SHALL be sanctioned

NOTE: Changes to R. 56 in Dec. 2010: 1. “Should” becomes “shall”2. Party claiming that a fact cannot be or is genuinely disputed must point to materials

in the record showing it cannot be or is disputed.a. Direct court to what you’re talking about

3. Party may submit an unsworn written declaration, certificate, verification, or statement under penalty of perjury in accordance with 28 USC § 1746 as a substitute for an affidavit to support or oppose a SJ motion

a. Just saying it doesn’t have to be notarized/sworn

(15) Reasons for filing a motion for SJ: (i) to win SJ, (ii) to educate the judge, (iii) to smoke out the opposing party’s case

(16) Who bears burden of coming forward with evidence (the burden of production)?(a) the party that will bear burden at trial

(i) Claimant bears burden of intro evid to support all elements of claim(ii) D bears burden of producing evid to support all elements of a defense

(16) For the form of the motion, check local rules. (a) Usually the motion must be accompanied by a brief .(b) Local rules often require the parties to submit an “Itemization of Undisputed Facts”

with supporting evidence. (i) In SOME, you might attach the discovery and affidavits as exhibits to your

Itemization, in OTHERS you might submit it separately

(17) The court may resolve the motion w/o holding a hearing

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Default JudgmentsF.R.C.P. 55 Default Judgments (which are disfavored by the court)

(1) a two-step process:(a) Entry of Default – the clerk shall enter default when it is shown that D failed to

plead or otherwise defend (i.e. no answer or rule 12 motions) (remember D has 20 days to put in mail; so wait 25 days)

(b) Entry of Judgment(i) by clerk if: (1) D was defaulted b/c of failure to appear, (2) the claim is for a

sum certain; (3) and D is NOT an incompentent or an infant (ii) Otherwise, it must be entered by the court:

(1) if dmgs. are NOT liquidated, the court shall determine dmgs. at a hearing or a trial (ex: tort damages are not liquidated)

(2) if D is incompetent or an infant, D must be represented to determine amt(3) if D has entered an appearance, D must be given 7 days notice of the

hearing (2) F.R.C.P. 54(c) – remember the limitation that judgment by default CANNOT be

different in kind or for a greater amount than prayed for

(3) An entry of default can be set aside by the court if D shows good cause (a) Factors to consider in determining if there’s good cause:

(i) Was the default willful? (ii) Did the defaulting party act promptly to set aside the default(iii) Is there a meritorious defense(iv) Will P be prejudiced if default is set aside (i.e. witnesses no longer available, docs destroyed; NOT prejudice just b/c now you have to try the case)(v) Did default result from g.f. mistakes about procedure(vi) The amount in controversy(vii) Are there alternative sanctions available(viii) Will default produce harsh or unfair results

(b) After judgment has been entered (2nd stage), defendant must move under R. 60(b) for relief from the final judgment. Court considers same factors as above, but the burden is higher & more difficult to get relief.

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DismissalF.R.C.P. 41 (1) Voluntary Dismissal

(a) P can dismiss the case b/f D answers or files a motion for SJ (b) If D has answered or filed a motion for SJ, P must get D to sign the stipulation(c) If D won’t sign, P can move the court for dismissal(d) The dismissal is w/o prejudice unless otherwise stated (in dismissal order) or P

has already dismissed the claim once in any state or federal court (2) Involuntary dismissal

(a) Defendant can file a motion to dismiss based on P’s failure to prosecute or comply w/ the rules(i) such dismissal is treated as an adjudication on the merits (so that P can’t refile

it) unless otherwise stated (i.e., dismissed with prejudice)

(3) Similarly, a claimant can dismiss a counterclaim, cross-claim or third party claim b/f responsive pleading, or if there is none, before evidence is introduced at trial

(4) If P voluntarily dismisses once in any ct. and then refiles in federal court , the court can stay the second action until P pays D’s costs incurred on the first case.

(i) SOME include attys fees if an underlying statue defines costs to include attys fees; OTHERS do NOT include atts feed in the costs

(b) NOTE: if P voluntarily dismisses his claim, D can object to the dismissal of his counterclaim(i) this is b/c dismissal is = to the complaint never being filed, and D will need to

object to the dismissal of his counterclaim if the SOL has since run

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Offer of JudgmentF.R.C.P. 68: Offer of Judgment(1) At least 14 days prior to trial, D can serve a written offer of judgment on P

(a) (this right to offer only belongs to a party in a defensive position)(2) If P serves written notice of acceptance w/in 14 days, either party can then file the

offer & notice of acceptance & the clerk MUST enter judgment(3) If P refuses, and the judgment P obtains after trial is the same or less favorable , P

MUST pay D’s costs incurred after the offer

(a) Some courts might also bar P from collecting costs P incurred after the offer was made(i) Even if a federal law provides that the prevailing party is entitled to attys fees

(ex. employment, copyright cases), the court may prohibit P (the prevailing party) from recovering attys fees incurred after the offer was made or reduce such recovery

(b) MOST will NOT order P (the prevailing party) to pay D’s attys fees incurred after the offer was made b/c D isn’t the prevailing party(i) BUT the 11 th Circuit did order the winning P to pay D’s attys fees incurred

after the offer in a copyright case

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SettlementSettlement:

F.R.C.P. 16(c) – gives court discretion to hold settlement conference

Local Rule 16(g) – settlement conference w/ magistrate judge (which is automatically scheduled around the middle of discovery)

(1) Lead counsel and a representative w/ settlement authority must attend unless otherwise approved

(2) NO statements are admissible at trial(3) Parties are to submit confidential settlement memos to the judge, which contain a

brief explanation of the case, a candid appraisal of settlement figures, estimated cost of trying and appealing the case.

28 U.S.C. § 651 Alternative Dispute Resolution(1) Each district court shall by local rule authorize the use of ADR procedures and

devise and implement its own ADR program (2) Types of ADR

(a) arbitration (binding)(b) mediation (non-binding) -MS’s ADR procedure of choice under Local Rule 83.7(c) mini-trials (have one week trial and let jurors tell parties what they think and see if that helps them settle)

Local Rule 83.7 - Mediation (our form of ADR) Court may order mediation Parties must enter into mediation agreement Lead counsel & parties must attend unless excused in advance Court maintains roster of neutrals (mediators) If can’t agree on mediator, court will appoint Communications during mediation are confidential Unless manifest injustice will result, violation of law or harm to public

health/safety Payment shared equally by all parties unless otherwise agreed or ordered by court.

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Pretrial Procedures

In the absence of resolution w/o a trial, parties must make pretrial disclosures(1) The parties will usually be required to attend a final pretrial conference and

submit a final pretrial order which will then control the trial (2) The parties must also comply w/ Rule 26(a)(3), which requires certain pretrial

disclosures:(a) Identify “will call” and “may call” witnesses(b) Deposition testimony that will be introduced(c) Identify “will offer” and “may offer” exhibits(d) Party having any objection to deposition testimony or exhibits must file them or

risk waiving them(i) In federal crt in MS, these disclosures are usually made when the parties work

together to draft the proposed final pretrial order (which will have all of this info)

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7th Amendment Right to Jury and Other Jury Matters

7 th Amendment Right to Jury Trial (1) Preserves jury trial in those types of cases that were tried to a jury in 1791 (a) preserves distinction b/t King’s ct. (right to jury trial) vs. court of equity (NO

jury)(2) General rule: If money dmgs. are sought, then you are entitled to a jury trial. If you

seek equitable relief (ex. injunction), then you have NO right to jury trial(a) APPLICATIONS:

(i) B of K seeking money dmgs: YES, jury trial(ii) Nuisance action for dmgs: YES, jury trial(iii) B of K seeking spec. perf.: NO (iv) Nuisance action seeking injunction: NO

(b) EXCEPTIONS: (i) replevin – D stole something and I want it back (jury trial); (ii) ejectment (jury trial)

(3) Two part inquiry for new statutory claims to determine if there’s a right to jury trial: (i) The nature of the claims involved (ii) The character of the remedy sought (this prong is most important)

F.R.C.P. 38 Jury Trial of Right(1) The right to jury trial is preserved(2) The party must demand jury trial in writing w/in 14 days of the last pleading on the

issue (you can simply request a jury trial in the complaint, answer, counterclaim, etc.)(3) If NO timely demand is made, the right is waived (BUT see F.R.C.P. 39(b))

F.R.C.P. 39(1) Parties can consent to trial by judge(2) The court has discretion to grant a motion for jury trial even if the moving party

failed to demand a jury trial(3) In cases where there is NO right to jury trial, the court may impanel an advisory

jury and may, if both parties consent, impanel a binding jury (EXCEPT in case where statute prohibits jury trial in cases involving the U.S.)

F.R.C.P. 48 Number of jurors/participation in verdict(1) at least 6 and NO more than 12 jurors (no alternates)(2) ALL must participate in the verdict unless excused for good cause (in State in civil = 12 person jury; 9 of 12 must agree) (3) must be a unanimous verdict(4) the jury must consist of at least 6 jurors when the verdict is rendered(5) parties can stipulate otherwise(6) Party can request to poll jurors after verdict is returned

F.R.C.P. 47 Selection of Jurors(1) voir dire (examination of prospective jurors by the parties, lawyers or the court)(2) peremptory challenges

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(a) Generally, you get 3 peremptory strikes, plus one if the judge sits two alternate jurors

(3) the court may excuse a juror during trial or deliberation for good cause

Limitations on peremptory strikes(1) Batson (a criminal case): striking minority panel members w/o non-racial

justification violates EP- as long as striking party offers something, then burden shifts(a) burden shifting:

(i) the challenging party must make a prima facie case by showing the totality of the facts gives rise to inference of discriminatory purpose (a pattern and NOT just one incident)

(ii) the opposing party must offer a non-racial reason for the strike(iii) the court must then determine if the proffered reason is pretextual and

whether the opposing party has proved purposeful discrimination (2) Edmonson: Batson applies in civil cases b/t private parties too(3) J.E.B. v. Alabama: forbids gender-based peremptory challenges

(4) Miller-El v. Dretke: the court can consider (i) grossly disproportionate use of graphic questioning and (ii) the fact that the prosecutor kept white jurors who gave similar answers to Qs as black jurors who were struck, and (ii) that the prosecution took advantage of the jury shuffle

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Jury InstructionsF.R.C.P. 51 Instructions(1) parties may file written requested jury instructions and furnish them to all parties(2) the court must give the parties an opportunity to object to the proposed instructions

on the record and outside the presence of the jury and must inform the parties of the jury instructions b/f closing arguments and jury instruction

(3) Parties must make timely objections to instructions on the record(4) Parties can object to error in a given instruction or in the court’s failure to give an

instruction(5) In the absence of an objection, a court may review an instruction of plain error that

affects substantial rights

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Motion for Judgment as a Matter of Law

F.R.C.P. 50 Motions for Judgment as a Matter of Law(1) after a party has been fully heard on an issue but before the case is submitted to the

jury, the opposing party may move for judgment as a matter of lawArgument: other side has failed to prove an essential element of the claim which they need to prove in order to recover

(2) Same standard as SJ: whether a r’ble jury could decide the case in favor of the non- moving party based on the evidence viewed in the light most favorable to the non-moving party(a) JML are legal motions, so on appeal, the standard of review is de novo

(3) A party which moved for JML may renew the motion by filing a written motion w/in 28 days after the entry of judgment (note: judgment, not verdict)(a) (thus to renew the motion post-trial, you must have made the motion SOMETIME

during trial (either at the close of evidence or at the close of the opposing party’s case) and (on renewal, the standard remains the same)

(4) A motion for new trial must be filed w/in 28 days after the entry of judgment [F.R.C.P. 59]

(5) F.R.C.P. 50 and 59 post-trial motions must be filed w/in 28 days, the court CANNOT extend the 28 day period for these motions

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Post-Verdict Motions

F.R.C.P. 59 Motion for New Trial(1) Grounds for a new trial:

(a) Error in instructions(b) Error in admitting or excluding evidence (including expert testimony)(c) Prejudicial comments made by lawyer or the judge(d) improper jury conduct including a compromised verdict(e) newly discovered evidence

(i) the evidence must have been available at the time of trial but have been excusably overlooked w/o fault on your part, admissible, and likely to alter the trial’s outcome

(f) the verdict is against the great weight of the evidence (g) the verdict is excessive or inadequate (remittitur but NOT additur)

(i) P can accept the remittitur or retry the case. The award will usually be reduced to the maximum amount a r’ble jury could have awarded.

(2) The trial judge has discretion to grant or deny motions for a new trial, and are reviewed for abuse of discretion on appeal

(3) The error must have prejudiced a substantive right of the party seeking a new trial (F.R.C.P. 61 – the harmless error rule)

(4) Generally, an appeal cannot be immediately taken from an order granting a new trial (you must wait until the new trial is complete)

(5) A motion for new trial must be filed w/in 28 days after the entry of judgment [F.R.C.P. 59]

(6) F.R.C.P. 50 and 59 post-trial motions must be filed w/in 28 days, the court CANNOT extend the 28 day period for these motions

Ruling on Alternative Motions(7) A party may file both of these motions (JML & new trial) in the alternative.(8) If the trial ct. grants the motion for JML, the court should also issue a conditional

ruling on the motion for new trial(a) If the court grants the motion for JML and conditionally grants the new trial

motion, and the appellate court reverses the JML, the case should be remanded for new trial unless the appellate court also reverse the trial court’s grant of a new trial.(i) The appellant in such a case should not only attack the JML on appeal, but

should also raise any objections to the new trial.(b) If the court grants the motion for JML but denies the motion for a new trial, the

appellee can assert error in the denial of a new trial on appeal(c) If the court denies the motion for JML, the appellee can assert on appeal that in

the event the appellate court determines the trial court erred in denying the motion, the trial court should order a new trial rather than enter judgment.

F.R.C.P. 59(e) Motion to Alter the Judgment(1) typical grounds:

(a) an intervening change in the law(b) new evidence that was NOT available at trial

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(c) to correct a clear legal error(d) to prevent manifest injustice(e) within discretion of the court*Difference in this & R. 60 is that these must be filed w/in 28 days

F.R.C.P. 59(d): a judge can order a new trial sua sponte

F.R.C.P. 60 Relief from Judgment or Order (recourse a/f the 28 day time limit above)(1) clerical mistakes may be corrected at any time (2) a party may move for relief from a final judgment based on:

(i) Mistake, inadvertence, surprise or excusable neglect(a) You must demonstrate excusable neglect if you’re seeking to overturn a

default JUDGMENT (ii) Newly discovered evidence, which requires

(a) it must have existed at the time of trial(b) the moving party must have exercised due diligence(c) the new material must also be material and be likely to produce a different

result(iii) Fraud

(a) you must prove that the adverse party engaged in fraud by clear and convincing evidence and also that such fraud prevented the moving party from fully presenting its case

(iv) The judgment is void (ex. lack of jurisdiction, violation of due process in the original proceeding)

(v) The judgment has been satisfied or released, is based upon another judgment which has been reversed or it is no longer equitable (b/c of a change in law)

(vi) Any other reason justifying relief (“catchall”)

(3) The trial court has discretion to grant such relief (with “void” exception)(4) The motion must be filed w/in a r’ble time and NOT more than one year after

judgment for the first three reasons . (5) A void judgment can be attacked at any time . (6) For the first 3 reasons, the motion must be brought within a r’ble time & not more

than 1 year after the judgment

F.R.C.P. 62 Stay(1) the execution of a judgment is automatically stayed for 10 day period following the

entry of judgment (EXCEPT for injunction, receivership, accounting)(2) the court has discretion to further stay execution pending disposition of post-trial

motions and may order security(3) the appellant may obtain a stay pending appeal by filing a supersedeas bond (in MS,

= judgment’s value + 15% interest) and getting court approval of the bond(4) If the judgment is a lien upon ppty of the judgment debtor under state law, then the

judgment law is entitled to such a stay as state law accords – automatically (no motion necessary)

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AppealsAppeals

(1) F.R.A.P. 4: In civil case, notice of appeal must be filed in the district court w/in 30 days after entry of judgment

(2) F.R.A.P. 3: the notice must designate the party taking appeal, the judgment or order appeal is taken from, and the court to which appeal is made, and you must pay the filing fee

(3) F.R.A.P. 4: an appellee may file a cross-appeal w/in 14 days of the notice of appeal (4) F.R.A.P. 30: If you file a timely post-trial motion for judgment as a matter of law or

for a new trial or a Rule 60 motion w/in 10 days, the 30 day period is tolled until entry of the order disposing of such motions

(5) There are other provisions for extending or reopening this time limit.

F.R.C.P. 54(b) Certification(1) any judgment or order which only partially disposes of the case (i.e. resolves at least

one claim or resolves the rights of at least one party) is NOT an immediately appealable order unless the court determines there is NO r’ble cause for delay of entry of a final judgment(a) EX. the trial court grants SJ to one D but not the other, P cannot appeal the trial

court’s grant of SJ immediately unless the court enters a 54(b) judgment. P can move the court to enter such certification.

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Binding Effect of Judgment

Claim Preclusion (like issue preclusion, an affirmative defense that is waived if not raises in the answer or Rule 12 motion, it may also be raised in a pre-mature SJ motion)(1) Parties should be precluded from re-litigating claims for reasons of finality of

judgments, efficiency and consistency

(2) ELEMENTS of claim preclusion/res judicata:(i) same claim, which may be determined by

(a) the same evidence test: claims are identical when the evidence necessary to sustain the verdict on the later claim would also sustain the verdict on the earlier claim (the Illinois law according to Frier’s concurrence)

(b) the same transaction or occurrence test, the modern trend of Res.: preclusion where both suits arise out of the same transaction or common core of operative facts (followed by the Frier majority and in MS)

(c) the primary right test: claims are identical when both actions seek to redress the same harm suffered or the violation of ONE primary right

(ii) same parties (A as claimant in both cases and B as defendant in both cases) OR in SOME (MS), if the new defendants are in privity w/ the original defendants (ex. parent/sub corporation or related corps. w/ a close enough relationship to invoke privity)(a) one issue is whether the potentially precluded party’s interests were

adequately protected/represented in the first suit(iii) a valid final judgment on the merits

(a) “valid” means that the first court has SJMJ and PJ(b) a “final judgment” means immediately appealable and includes a dismissal (1) MOST: a judgment is final even if the first case is currently on appeal

(c) “on the merits” includes (i) a dismissal for failure to state a claim under 12(b)(6) and (ii) in MOST: a default judgment is a final judgment on the merits b/c D had an opportunity to test the merits of the case and failed to do so

(1) “on the merits” does NOT include:(i) dismissal for lack of SJMJ, PJ, venue, failure to join a necessary

party are NOT on the merits(ii) involuntary dismissals under 41(b) if they are w/ prejudice on the merits (iii) cts. are SPLIT over whether a dismissal based on SOL is “on the

merits”

(3) Frier v. Vandalia: P’s first suit in state court was for replevin. P’s second suit in federal court was for violation of Section 1983 and the DP clause(a) Under 28 U.S.C. § 1738 – Full Faith and Credit Statute:

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If the claim preclusion of the state in which the judgment was rendered would require other state courts in that jurisdiction to treat the issue as precluded, the federal district courts must do the same.

(4) Thus, if the first case is in a state court and the second case is in federal court (Frier), the Full Faith and Credit Statute, 28 U.S.C. § 1738 , requires the law of the first state forum governs (same rule for issue preclusion)

(5) Similarly, if the first case is in one state court and the second case is in the state court of another state, the Full Faith and Credit Clause and Statute requires that the law of the first state forum governs the issue of claim preclusion (same rule for issue preclusion)

(6) If the first case is resolved in federal court, then the federal C/L controls the issue of claim preclusion. (same rule for issue preclusion)(a) If the first federal case was based on diversity jurisdiction, the federal C/L

directs the second federal court to apply the law of the original forum state (Semtek Int’l)

(b) If the first federal case was based on federal Q jurisdiction, the federal C/L will apply and will likely follow the same transaction or occurrence test

(7) Common examples where claim preclusion may apply (depending upon the test for “same claim”):(a) claim splitting

(i) different injuries (personal injury/ppty dmgs.)(ii) different theories (negligence, products liability, B of warranty)(iii) different remedies (dmgs., injunction)

Issue Preclusion (an affirmative defense if raise by D)(1) ELEMENTS: (i) same issue (the issue must be identical)

(a) EX. a second suit for a later installment hypo:(i) it is NOT claim preclusion(ii) it is NOT issue preclusion as to whether the second shipment was 200

thread count; it IS issue preclusion as to whether 200 thread count sheets would B the K

(ii) actually litigated and decided(a) default judgment is claim preclusion but NOT issue preclusion(b) involuntary dismissal w/ prejudice is claim preclusion but NOT issue

preclusion (iii) necessary to the verdict

(a) the determination of the issue must be essential to the verdict(b) EX: if A won in the first suit against B. Contributory neg. would have been a

complete bar and was raised by B. It’s issue preclusion as to A and B’s neg.(i) BUT a general verdict for B, is NOT issue preclusion for either

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(c) if the party would have won anyway, it is NOT necessary (facts found against a prevailing party in MOST are not necessary b/c he has no incentive to appeal that finding for a reversal)

(d) when there are alternative grounds supporting the judgment, RES states there is NO issue preclusion b/c the D will only appeal if he thinks he can reverse both grounds and we shouldn’t require D to appeal just to prevent issue preclusion(i) jurisdiction, however, are SPLIT

(iv) use between parties:(a) mutual (the same parties in both cases)(b) nonmutual (the parties in the two cases are not identical) (i) defensive use by D (ii) offensive use by P: the trial ct. has discretion to determine if it is

available based on the following factors: (1) did P “wait and see” (i.e. could P could have joined in the first suit)(2) did D have an incentive to vigorously defend the first case(3) will the later case afford D procedural opportunities not available in

the first case(4) are there multiple previous cases which are inconsistent

(v) issue preclusion can never be asserted against a party who did NOT have a full and fair opportunity to litigate the issue in the first trial(a) EXCEPTION: privity

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