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CIV PRO II ATTACK PLAN DEVLIN 2013

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Service of Process

INTRO: 14 amendment and due process requires giving person notice that claim against them
and allow them opportunity to respond. In order to satisfy that requirement, the service most
meet both the constitutional and statutory requirements:
1. Constitutional Requirement (challenging notice)
a. Mullane test:
i. Reasonable likely to give actual notice? (If yes, done)
1. Would you really use this method if you wanted to contact them?
2. Green v. Lindsay- if service unreasonable, doesnt matter if they got it
3. Jones v. Flowers: not constitutional if you know they didnt get it.
ii. (If no) did you do the best you could?
1. Form must not be substantially less likely to work than others
2. Matters if you know who D is
2. Statutory Requirement (4(c)) (proper service, challenging service)
a. 4(b)- File complaint, present summons,
i. Clerk signs, seals and issues it to P for service
b. (4)(C)(1)-Serve summons with a copy of complaint, within 4(m) limit [120 days of
filing or dismissed under 12(b)(5), w/o prejudice)
i. With the following things [4(a)(1)(A)-(G)]
1. Name the court and the parties
2. Directed to D
3. State name and address of Ps attorney or of P if unrepresented
4. State the time within which the D must appear and defend
5. Notify D consequences for failure to appear is default judgment
6. Signed by clerk
7. Bears court seal
c. By person
i. Who is least 18 and not party to complaint (4)(C)(2)
ii. Or appointed by court 4(C)(3)
d. Serving person (4(e))-Not minor, incompetent or waiver
i. IN THE US OR TERRORITY
1. 4(E)(1)-Follow state law where court is located/ service will be made, OR:
2. Do any of these:
a. Deliver copies personally to actual person 4(e)(2)(A)
i. May use trickey, and they dont have to always take it. Can
put on table and notify tell them
b. Leave copies at dwelling or usual place of adobe with
someone of suitable age and discretion who resides
there. 4(e)(2)(B)
i. Dwelling=domicile sometimes
1. National dev. Co v Triad holding-when person has
multiple dwellings, service is proper at house which
currently living
2. Koskie- Ny apartment- has furnished it like a house,
had maid, was there.
3. First nat. bank & trust Co. V ingerton- hotel room
4. Ali v mid Atlantic. - Parental home while kid in
college away at school
ii. Suitable age

1. Cases go both ways, Holmen v. Miller 13 years is not


2. Understanding and responsibility- case by case
iii. Resides1. 1 week not enough, must be substantial enough to
increase chance of running into other individual. Need
some extended stay
c. Deliver copies to agent authorized by appointment or by law 4(e)
(2)(C)
ii. OUTSIDE THE US
1. By specific federal law 4(f)(1)
2. Waiver 4(f)(2)
3. International agreement 4(f)(3)
4. Court order 4(f)(4)
5. IF THOSE DONT WORK
a. Foreign law, letters rogatory, personal service/ mail, court order
4(f)(5)-(8)
e. Serving Minors and Incompetent-4(g)
i. Inside US
1. By state law
ii. Outside US-directs to 4(f)(2)(A), (f)(2)(B), and (f)(3)
1. Any manner prescribed by foreign country
2. Directed in response to letter of request
3. Means court directs
f. Serving corp (4(h))
i. In judicial district of US
1. 4(h)(1)- any manner recognized by fed law: OR
2. 4(h)(1)(A)-Follow 4(e)(1)- state law in state, OR
3. 4(h)(1)(B)-Delivering copies to an officer, managing agent, or other
authorized agent. If authorized by state, must mail a copy to each
defendant
a. Could ask, Who do I give these papers to?
b. Business should know who is authorized and who is not to accept
service
c. Can even be highest ranking person in office (CASE)
ii. Foreign corps-4(h)(2)
1. Any manner available for service 4(f) on foreign except personal
g. Service to Government- 4(i)
i. Bring to US DA for that district, and send copy of summons and complaint to the
AG, and:
ii. if suing agency or officer, must also serve them
h. Over Property 4(n)
i. 4(n)(1)-if allowed by fed statute
ii. 4(n)(2)- if can show no IPJ by reasonable efforts, can assert jrusidction over
assets in the district, provided by state law.,

Waiver of Service
1. P must request waiver and include: 4(D)(1)
a. In writing, and addressed
i. Individual D
ii. Or managing/ general agent/ other authorized for crop or by law.
b. Name court where complaint was filed
c. Copy of complaint, 2 copies of waiver form, and means for returning form
d. Information on consequences of waiver
e. State date request was sent
f. Give D reasonable time to accept, 30 days after if sent in US 4(d)(1)(f)

g. Send it by first class mail or other reliable means.


2. If D refuses and loses, court FORCE payment of service cost and reasonable expenses
(attorney fee), unless good cause shown for rejection
a. Good cause (form improper under 4(d) can be good cause, that matter of law does
not apply- Mosely)
3. Time, if accepts waiver, D gets 60 days after request sent to respond, 90 days if outside US
district 4(d)(3)

Venue- Claims Brought 1391

INTRO: Venue is the third and final requirement in order to determine where a case can and
should be brought under the Federal rules. 28 USC 1390 describes the rules and limitations of
venue which describe which Federal districts can hear the case in a given state. Unlike IPJ and
SMJ, venue is not a constitutional right or an issue of power, but rather is merely a matter of
convenience for all involved.
1. First check SMJ and IPJ to insure can be brought in Fed court in that state.
2. Venue in General 1391-can brought in Any district where:
a. RESIDENCE-Any D resides, if all Ds are in the same state 1391(b)(1) OR:
b. EVENTS-A Substantial (not majority) part of the events or commissions giving rise
to claim occurred, or substantial part of property that is subject to action lies.
1391(b)(2) OR:
c. NO WHERE ELSE- any judicial district in which any D is subject to IPJ. 1391(b)(3)
3. If A then: Residency
a. Natural person and aliens admitted to US, reside where domiciled. 1391(c)(1)
i. To change:
1. Reach new state
2. Take up residence in new state
3. Intent to remain for foreseeable future/ absence of plans to leave
b. Business 1391(C)(2)-broad reading to apply to all businesses-Corp, Llc, etc.
i. P Corp- only where principal place of business
1. Headquarters, Incorporation
ii. D Corp-Where subject for personal jurisdiction
1. IPJ for Corps
a. Cause of action arouse of contacts (SIPJ)
b. General IPJ
i. Headquarters
ii. Place of Incorporation
iii. 1391(d) When multiple districts in a state that a corp could be brought for
IPJ:
1. Corp is subject to venue in any district that would have IPJ if they were
separate states, OR
2. If none would, then district which it has most significant contacts
c. Non US resident, any district 1391(c)(3)
i. Ignore venue when joining out of state part, any district

Transfer of Venue
1404 Proper original venue

1. 1404(a) (Can we transfer?)


a. Check for
i. Hoffman v. Blaski- can only transfer to jurisdiction where P could have
originally filed/ brought unwilling D. Cant just waive it.
ii. Ipj
1. Check New Courts IPJ

iii. Venue
1. Fed district where action might have been brought
iv. Should already have SMJ anyway, but check
2. 1404(a) Discretion (should we?)
a. Interest of justice
b. Convenience of the parties
c. Convenience of the witnesses
3. Law applied
a. Van Dusen- When D ask- Achangeofvenueunder1404(a)generallyshouldbe,withrespecttostate
law,butachangeofcourtrooms
b. Ferens v. John Deere-even if P request, law stays same

1406 improper original venue


1406(A) Wrong District= shall dismiss, OR if it be in interest of justice transfer such case to
any district which it could have been brought because this is just convenience issue, should
avoid losing claims over.
1. Can we Transfer?
a. where you could bring an unwilling D
i. IPJ- All parties subject to IPJ
ii. VENUE1. Can be waived if D does not interpose timely and sufficient objection to
venue, but cannot consent to be brought in an improper venue as in 1404
action
2. Interest of Justice (what should we do?)
a. Statute of limits? Would dismissing end the case
b. Anything to sway judge- Fairness to parties, Want to keep case going, DO YOUR JOB
3. Law applied
a. Law and procedure does change-apply the court it is transferred into/ transferees
choice of law.
4. 1631- Transfer to cure want of jurisdiction
a. Goldlawr- Court can transfer case, even if original court lacks IPJ for efficiency and
speed up process

Forum non Conveniens


PURPOSE is when there is no court that it can be transferred to, but there is a proper court
somewhere. Normally in Fed Court, such proper court is in a Foreign Country. In state court, could
be just another state court.
1. CAN we?
a. Is there another place to transfer? Determine if other court is adequate:
i. Is established system of law/Forum to handle claim (can still be dismissed even if
no where else to hear it Islamic Republic)
ii. It does not mean it has to equal the same relief you would receive in US, just
that you can have claim heard
iii. Piper Aircraft v. Reyno-Fact that alternative forums law is less advantageous
does not bar dismissal, unless forum court provides no remedy at all
2. SHOULD WE?
a. Interest of Parties
b. Availability of witnesses
c. Burden on Court
d. If our court may not unfairly judge the case, consider
i. Public interest-Piper

1. Having case in forum that is at home with the law that must govern
2. local interest in having local controversies at home
3. Unfairness of burdening citizens in an unrelated forum with jury duty
4. Avoidance of conflicts of law, or in app to foreign citizens
ii. Private interest- Piper- cost, location of witnesses, access to proof, cost getting
people there.
1. Relative ease of access of proof
2. Availability of compulsory process for attendance of unwilling.
3. Practical problems that make trial easier, expeditious and inexpensive if in
this forum

Pleadings

INTRO: Pleadings are the method by which a claim is begun and responded to in the court
system. In the federal system, we have very strict rules regarding pleadings and what is
necessary to meet the requirements.

General
1. R7- Pleadings allowed
a. Complaint
b. Answer to complaint,
c. Answer to counterclaim designated as counter claim,
d. Answer crossclaim
e. Third party complaint
f. Answer to third party complaint
g. If court orders one, a reply to an answer
2. Form of pleadings-R.10
a. Caption, name of parties
i. Caption=Court names, title, file number, rile 7(a) designation.
ii. Title= name of both parties, title of other pleadings, refer to others generally
b. Paragraphs-numbered
c. 10C- can attach documents for reference
3. Attorney representation to court
a. Every pleading, written motion, and other paper MUST BE SIGNED by at least one
attorney of record 11(a).
ii. Certifies that to best of person knowledge, that information, and belief, formed
after an inquiry reasonable under the circumstances-11 (b)
1. Not being presented for improper purpose-11 (b)(1)
2. Contentions have warranted basis of existing law, or non-frivolous for
modifying existing law or establishing new one- 11(b)(2)
3. Factual contentions have evidentiary support or will likely have such
support- 11(b)(3)
a. Cant just trust clients word, do research
4. Denials of factual contentions are warranted on evidence 11(b)(4)
ii. Sanctions may be imposed 11(c)
1. Must give attorney notice and chance to fix
2. Must wait 21 days after serving attorney before filling motion under 11(c)
(2)
3. Zuk v Eastern Pennsylvania- Rule 11 appropriate when council fails to
make adequate inquiry into both law and facts, which is reasonable under
circumstances

Complaint and Answer


1. Complaint
a. Must contain:
i. 8(a)(1)- short and plain statement of the grounds for the courts
jurisdiction, unless court already has jurisdiction and the claim needs no new
showing
1. only SMJ, and you can show venue-no need to show IPJ
ii. 8(a)(2)- short and plaint statement of the claim showing that the pleader is
entitled to relief; and
1. Twombly- Pleadings must contain more than statement of facts that
merely creates a suspicion of a legally cognizable right of action. enough
facts to raise a reasonable expectation that discovery will reveal
evidence

a. Iqbal-nudge his claims of invidious discrimination across the line


from conceivable to plausible. Influenced greatly by context-Show
elements of the claim
2. Twombly- court accepts as true all allegation contained in complaint
a. Iqbal- The tenant that a court must accept as true all of the
allegations contained in a complain is inapplicable to legal
conclusions- Conclusions do not get assumptions of truth as do
facts.
3. McCormick v. Kopman- Rule 8(e)/(d) allows up to plead in alternative
a. Can only do if lawyer is genuinely in doubt as to what the facts are
and what evidence will show
4. Exceptions to pleading generally-ADD TELLAPS
a. If pleading fraud or mistakes
i. 9(b)-Party must state with particularity the circumstances
constituting fraud or mistake. Malice, intent, knowledge, and
other conditions of a persons mind may be alleged generally.
ii. Elements of Fraud (puffery and opinions not fraud)
1. False statement of material fact
2. Knowledge that statement is false
3. Intent to deceive/deprive
4. Justifiable reliance
5. Injury
b. Actions against city or Officer-1983/ Tellaps
i. Gov. officials can only be held liable if they themselves acted
on account of a constitutionally protected characteristicIqbal
ii. Municipality can be sued under 1983, but cannot be held
liable unless municipal policy or custom caused the
constitutional injury.
iii. 8(a)(3)- a demand for relief sought, which may include relief in the
alternative or different types of relief
1. Must show if trying to prove amount in controversy St.paul mercury
2. Amount of damage may be determined by the court
3. Not limited to what you ask for: 54(c)
a. Exception, if there is a default, you get what you ask for
4. Special damages- must be specifically stated 9(g) items that could not be
anticipated as consequences to the claimed facts.
a. If you dont plead, you cant bring up at trial
5. 8(d)(2) Plead in alternative
a. Can plead two things that cannot both be true
iv. INCLUDE COPY OF COMPLAINT
2. Answer
a. Time to respond- 12(a)
i. 21 days after being served; OR (i)
ii. if waiver- 60 after request sent, or 90 if out of US (ii)
b. If counter claim or cross claim 12(b)
i. 21 days served pleadings that state it
c. serve response to answer 12(c)
i. 21 days after being served with order to reply
d. 8(C)-Affirmative defense (must be stated in response, or lose right to raise), if raised
during trial and party objects go to 15(b)(1) .
i. Accord and satisfaction,
ii. Arbitration and award
iii. Assumption of risk

iv. Contributory negligence


v. Duress
vi. Estoppel

vii.
viii.
ix.
x.
xi.
xii.

Failure of consideration
Fraud
Illegality
Injury by fellow servant
Laches
License

xiii.
xiv.
xv.
xvi.
xvii.

Payment
Release
Res judicate
Statute of frauds
Statute of limitations

xviii. Waiver
xix. If any misstated between counterclaim or defense construe for justice- 8(c)(2)
e. Defense/ Reasons to dismiss:
i. 12(b)(1) lack of SMJ
ii. 12(b)(2)- lack of IPJ
iii. (3)-improper venue
iv. (4)- insufficient process (technical defect- court disfavors dismissal and can
overlook technical details)
v. (5)- insufficient service of process; (delivery not accomplished or past 120 days)
vi. (6)- failure to state a claim upon which relief can be granted (not enough to
create liability) If facts alleged even if true would not be illegal- (8a2 failure)
vii. (7)- failure to join a party under rule 19
f. If you do not put affirmative defenses from b2-5, you risk waving them
i. 12b2-5 If not raised in 1st response then waived
ii. 12b6-7- can be brought up until eve of trial
iii. 12b1- can be brought up anytime
g. Three possible answers for each claim 8(b)(1)-(6)
i. Admit
ii. Deny
1. General-deny everything
2. Specific-deny specific paragraphs or sentences
3. Zielinksi v. Philadelphia- Claims not specifically denied are taken as
true
a. Cannot have a general denial, unless, in good faith, counsel actually
intends to deny whole complaint.
iii. Claim to have insufficient knowledge to admit or deny-acts like denial
iv. COPY OF ANWSER
v.

vi. Amended Pleadings


1. Before trial then 15A
a. May amend freely:
i. 21 days after serving it 15(a)(1)(A)
ii. If response required, 21 days after service or 21 days after other party tries to
say your claim is lacking something or too vague/ response [12(b)(e) &(f)],
15(a)(1)(B)
b. Other wise, only written consent of opposing part or courts leave. Court should freely
grant when justice so requires 15(a)(2)
1. Courts generally allow liberal amendments. Fed rules embody preference
for deciding cases on merits, not technicalities. Need bigger reason than
will change character of the action
2. Will not allow unreasonable delay, bad faith, or prejudice. How close to
trial?
3. Foman v Davis- unless apparent or declared reason [such as undue
delay, bad faith or dilatory motive on part of motioner; repeated failure to
cure deficiencies by amendments allowed, undue prejudice to the
opposing party, futility of amendment etc.] leave sought should be freely
given
a. Beeck v. Aquaslide-Burden is on part opposing amendment to
pleading to show prejudice
4. Alexander v. Fujitsu- Responsive pleading as used in R.15, must be
defined by reference to R 7(a), and does not include motion to dismiss.
Pleadings may be amended thereafter as matter of course.
5. Amending does not affect time left for other party to respond, unless less
than 14 days, than other party has 14 additional days to respond 15(a)
(3)

2. During and After Trial then 15 (B)


a. BASED ON OBJECTION: When a party objects to new evidence, court may allow other
party to amend pleadings. Court should freely permit an amendment if aid in
advancing merits and objecting party fails to show how it prejudices them. Court
may grant continuance. 15(b)(1)
i. Variance- presentation of evidence on a point not covered in a pleading
ii. Should court let them amend?
1. It would add to merits
2. It might prejudice other party since they didnt prepare for it
iii. Should court allow continuance? (give time for a period to gain information)
1. Can P quickly come up with counter evidence? What would it be?
b. When tried by partys express or implied consent, it is treated as if raised in the
pleadings. Party may move at any time to have pleadings later amended 15(b)(2)
c. Relation back
i. Amendment goes back to original date if
1. Law says so 15(c)(1)(A)
2. Amendment asserts a claim or defense that arouse out of Conduct,
transaction or occurrence of original pleading 15(c)(1)(B)
a. Same time, place, people, actions, logical
b. Marsh v. Coleman Company- D should have reason to anticipate
from reading the original complaint that it should prepare to defend
a case based on the amended acts.
3. Amendment changes party name if 15(c)(1)(b) is satisfied with in 4(m)
time period, and party to be brought in.15(c)(1)(C)
a. Received notice of action such that it would not be prejudiced in
defending on merits
b. And knew or shouldve known action would have been brought
against them but for a mistake concerning the proper parties ID
c. Krupski v. Costa Crociere- definition of mistake
i. Defendant knew or should have known during 4m period
that it would have been named as D by for an error
1. Not the Plaintiff
ii. Worthington v. Wilson-Plaintiff actually made a mistake,
not didnt know who it was.
d. If joining parties or claims through amendment, start with 15, and then use rule
applicable to joining such as 20 or 18.
3. Supplemental pleadings-events occurring after a pleading is filed 15(D)- (for new information,
not mistakes)
i. On motion and reasonable notice, court may, on just terms, permit a party to
serve a supplemental pleading arising out of any transaction, occurrence, or
event that happened after the date of pleading to be supplemented. Can allow
even if original pleading is defective. Court may order opposing party to plead to
the supplemental pleading within a specific time
1. Courts freely grant leave to supplement, unless there is undead delay,
prejudice, or bad faith.
4. After rule 16(e) final pretrial meeting- only to prevent injustice

vii.

United States District Court


(insert District)
___________________________________________________________
(insert Plaintiffs)
Plaintiff,

Index No. Civ 2013-10000

-Against(insert Defendants)

(TYPE OF CLAIM)

Defendant,
___________________________________________________________
Plaintiffs, by his/ her attorneys, (law firmname), alleges:
THE PARTIES
1. ___________is acitizen of _______________
2. On information and belief, _______________is a _____________corporation with its principal places
of business in____________________
JURISDICTION AND VENUE
3.
4.
5.
6.

Theamount in controversy exceeds $75,000


This court therehas subject matter jurisdiction pursuant to 28 U.S.C. (1332)
Facts for Venue
VENUE ISPROPER UNDER
Count I: Claimagainst Defendant

7. Plaintiff Did this


8. Defendant has donethat
9. Show facts that support elements of theclaim
10. Conclusion- P suffered harmbecauseof acts or events above that areDs fault.
Count II: Another Cause of action
11. Plaintiff repeats and re-alleges thematters alleged in paragraphs 1-8
DEMAND FOR RELIEF SOUGH
Whereas: Plaintiff demands judgment against defendants in an amount to bedetermined by the
court, but at least $80,000, together with attorney fees, interest, and cost of this action (must
makesureto includespecial damages)
_________________________________
NameOf attorneys/ law firm
5/ 10/ 2013
FOR ANWSER:
Top Same, answer each paragraph, add affirmativedefenses, counterclaims.

viii. MOTIONS/JUDGMENT

1. Motion to dismiss under rule 12ba. Motion 7(b) a request for a court order must be made by a motion
b. Attacks legal basis of claim
c. Can be made on grounds of 12(b)(1)-(7) (add these)
i. Lack of SMJ
ii. Lack IPJ
iii. Improper venue
iv. Insufficient process
v. Insufficient service of process
vi. Failure to state a claim upon which relief can be granted
vii. Failure to join a required party
d. Only one motion for all claims under this 12(g)(2)
e. 56a -Either party can motion for summary judgment and can pertain to only certain
issues
f. Must be made before answer, or wavied except for 12(b)(1)(6)(7)
2. Motion for Summary Judgment FRCP 56
a. FRCP 56a-Court shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and that movant is entitled to judgment
as matter of law
i. No genuine dispute=
1. Anderson- demand more than a mere scintilla. Must show that there is
enough evidence that a reasonable juror might find for the opposing party
to survive.
a. Standard for summary judgment will depend on standard for which
the claim must be proved
b. Brenan dislikes this since it means judge has to answer the question
by weighing the evidence himself (makes him less independent).
ii. Material Fact=
1. supports rules or requirements of under lying claim/ will effect outcome
2. Material facts= ANDERSON facts that will affect the outcome of the case,
factual elements that have to be established to prove a claim that you are
making.
3. Celotex- Movant in a motion must show absence of factual dispute,
movant not required specifically to negate any aspect.
a. Moving party had to comb record and give court reason, but only
show that other party lacks evidence.
iii. No controversy=nothing for court/jury to do
b. Procedure:
i. Support with facts: Part asserting that a fact is not genuinely disputed must:
1. Cite the record to prove-(letters, documents, all introduced through
affidavit) 56c1A or
2. Show that party cannot produce evidence to support claims 56c1B
ii. If moving party succeeds, then burden shifts to other party to prove wrong
iii. 56d- if facts can be found, but have not been found yet, judge may give the D
more time to find them. Have to show you could find something.
c. 56b- must be filed anytime until 30 days after close of discovery
d. What if SJ takes away piece that jurisdiction rested on?
i. Gibbs- they allowed it
ii. Court will reconsider SUpp
iii. Becomes a question of discretion
iv. Probably constitutional
3. Motion for Judgment
a. 12(c) after pleadings are closed, but early enough not to delay trial
b. 12(c) looks to all assertion. 12b looks just to the pleadings

c. 12(c)- have to motion to dismiss but you need to go into discovery to have the proof
4. Voluntary dismissal
a. 41(a)
i. By P 41(a)(1)1. notice of dismissal before D replies
2. stipulation signed by all parties
3. 42(a)(1)(b) without prejudice
ii. By Court 41(a)(2)
1. This is without prejudice
5. Involuntary dismissal
a. 41(b)
i. Failure to prosecute- have to be actively engaged in getting the case on the
calendar.
ii. With prejudice
6. Default Judgment
a. When a party against whom a judgment for affirmative relief is sought ahs failed to
plead or otherwise defend, clerk must enter the partys default 55(a).
b. Rule 54- can get more than what you ask for.
ix.

x.

xi.
xii. Intro:

JOINDER OF CLAIMS

xiii. 42B-judge is master, can split


xiv. FIRST DETERMINE RULE AUTHORIZATION:
xv.
xvi.

1. RULE 18 Permissive Claims:a. Party seeking relief against another party may assert any claims, counter claims, cross
claims, or third party claims
b. Must own basis of jurisdiction
2. RULE 13 Counter Claims-a party on one side has claim against party opposing party
a. COMPULSORY? (Lose it if dont plead)-13a
i. Does counterclaim arise out of same transaction or occurrence (13a1A)
1. STOO= three tests:
a. Same Facts, evidence, witness
b. Same Event-Unity of time and place
c. Logical relationship.
ii. Does not require adding another party the court does not have jurisdiction over
(13a1B)?
1. 13H- Adding party? See 19/20
iii. Yes, it is compulsory and must be added under 13a, or party loses their
opportunity to raise claim
1. Exceptiona. Claim is already pending somewhere else- 13a2A
b. Court cannot exert jurisdiction, and person does not exert
counterclaim 13a2B
b. PERMISSIVE otherwise under rule 13b. These claims do not have to be raised, if they
are, they might be separated into a separate trial under 42b since they do not promote
efficiency.
c. Other considerations
i. Dido v. Whitney-courts have discretion over whether they can hear a claim
that should have been pled as counterclaim, but never heard in court because of
settled
ii. Carteret Savings and loan assn. v. Jackson- there is no discretion to hear a
claim that should have been brought as counterclaim when default judgement.
3. RULE 13: CROSS CLAIMS- does a party on one side of the suit have a claim against a
party on the SAME side?
a. Always Permissive: MAY state
i. Does the claim arise out of the same transaction or occurrence as the original
claim or is related to property that is subject of original claim? 13g
1. STOO= three part test
a. Same facts, evidence, witnesses
b. Unities of time and place
c. Logical Relationship
ii. Yes= cross claim allowed under 13g (not compulsory)
1. May include a claim that co-party is or may be liable to cross-claimant for
all or part of a claim asserted in the action against the cross-claimant
13g
a. Not compulsory because we do not want them fighting each other/
want common defense
b. Jones v. Ford Motor= Claims will need own independent form of
jurisdiction, if doesnt meet STOO, most likely wont meet Same
Common Nucleaus.
iii. No=cross claim not allowed

iv. 13H-Add party must sastify under 19/20

xvii. NEXT CHECK JURISDICTION (CLAIM BY CLAIM)

xviii.
1. SUBJECT MATTER JURISDICTION
a. 1332-diversity?
b. 1331-Federal question?
2. 28 U.S.C. 1367
xix.
When District courts have original jurisdiction, the court shall have supplemental over all
other claims that are so related to claims in action that they form part of SAME CASE AND
CONTROVERSY under art III of constitution. Includes joinder and Intervention
a. CAN WE (requires)
i. Pending case with Original Jurisdiction
ii. Claim must be so related to form same constitutional case-1367a
1. Same case and controversy under art 3 of const (codifies Gibbs)
a. Case= anything that would ordinarily be brought together
b. UMW v. Gibbs- common nucleus of operative fact.
i. Would Claims ordinarily be expected to try them all in once
judicial proceedings? (Similar to same transaction, but
different)
ii. Operative facts= who, what, how, why
iii. If you pass R-20s common transaction or occurrence, court
will mostly likely pass under Gibbs common nucleuses of
operative fact
c. Applies to Ds and Ps
iii. Founded solely on diversity? (Codification of Owen v. Kroger) 1367b
1. If yes- NO SUPP JURISDICTION on
a. Claims By Ps against persons made parties under R.14, R.19,
R.20, R.24
i. Inconsistent with the jurisdictional requirement of 1332
1. Amount in contrevsory is okay someone else has. you
are ok as long as one person along the line meets itAllapatha
b. Claims By Peron who would be joined as Ps under rule 19 or
seeking to intervene as P under 24
2. Such cases would be against Strawbridge
3. ANALYSIS:
a. Is Independent jurisdiction? Yes, than Supp doesnt matter
b. Original Jurisdiction based on Diversity ? If not, then stop
c. Claim by P?
d. Claim against persons added under 14,19,20,24
i. If yes, does it destroy complete diversty?
1. Yes=barred
2. No=move on
e. Would party be added as P under 19 or 24
i. If yes, destroy diversity?
1. Yes: barred
2. No=all good
4. Fairview Park v. Al Monzo- Even if 1st claim dismissed, Supp can go on,
unless dismissed for SMJ grounds- at least for crossclaim/ can maybe
argue for counter
b. SHOULD WE? (Courts may decline to join if 1367c)
i. Complex or novel issue of state law
ii. Claim would dominate other claim (lot more evidence, or lot more money)
iii. Court have dismissed all claims over which it has original jurisdiction
iv. Exceptional circumstances with compelling reasons.
xx.

xxii.

xxi. Joinder of Parties

xxiii. FIRST DETERMINE RULE AUTHORIZATION

xxiv.
a. OVERAL JOINDER OF PARTIES
v. Joining someone through amendment=15c1C (pleadings)
vi. Failure to join a party could result in dismissal: 12b7
vii. For all parties: treated as an original pleading= needed service under 4 and must
respond under 12
1. RULE 19-COMPULSORY PARTIES
a. MUST WE?
i. Person subject to service (IPJ) and will not deprive court of SMJ must be joined if
19A1
1. 19a1A-Without them, court cant give complete relief among existing
parties OR
a. In LA for torts, court can only hold person to his share, no tub
b. Temple- not all tortfeasors required, even without them court didnt
dismiss.
i. In Common law, than can get full amount
2. 19a1B-Person has an interest relating to the subject matter and without
them:
a. Bi-It will impede or impair their ability to protect the interest, or
b. Bii-Leave an existing party subject to double, multiple, of
inconsistent liability
c. Hezlberg Diamonds v. Valley- Should be taken on case by case
analysis, even if not joined, they still have all rights no matter the
outcome.
ii. If required person not joined, court must order that person be made party, if
person refuses to join as O, made me made a D or involuntary P- 19A2
iii. If joined party objects to venue and joinder would make venue improper, court
must dismiss party-19a3
iv. If not required go to R20.
xxv.
2. RULE 20-PERMISSIVE PARTIES
a. Persons who may join or be joined:
i. May join Ps if: 20a1
1. 20a1A-Assert relief jointly, severally, or in the alternative with respect to
or arising our of same transaction, occurrence, or series of transactions
or occurrences (event, overlap, of facts and witness, or logically
connected), and
2. 20a1B-Any question of law or fact in common to Ps
ii. May join Ds if: 20a2
1. 20a2A-Assert relief jointly, severally, or in alternative with respect to or
arising out of same transaction, occurrence, or series of T or O: and
2. 20A2B-Any question of law or fact in common to all Ds will arise
iii. STOO test=
1. Same facts, evidence, witnesses
2. Same event, time and place
3. Logical relationship
4. Kedra v. Philadelphia- Cops beating people, helps us to look for these
factors
iv. Parties need only be interested in portion of relief
v. Consider judicial efficiency
xxvi.
xxvii. DETERMINE POWER/ FEASIBLE

a. CAN WE? If required, is it feasible?


vi. Check SMJ
1. Cant destroy complete diversity under Strawbridge for rule 19 or 20 if
claim by p
2. Cant use supp if original action is based solely on Diversity and claim by a
P would destroy complete diversity
vii. Check IPJ
xxviii.
b. DO WE GO ON? If its not feasible, but required? 19B
viii. In equity and good conscience court has to choose between dismissing case or
going on without them. Will likely dismiss under 41. Helzberg Diamonds
1. 19b- Factors to be considered
a. Will a judgment render in that persons absence prejudice that
person or existing party. 19b1
b. Can prejudice be lessened or avoided -19b2
i. 2A-protective provisions
ii. 2B-shaping the relief
iii. 2C other measures
c. Would judgment rendered in persons absence be adequate? B3
d. P has an adequate remedy if it was dismissed? Other venue B4
2. Shields v. Barrow- indispensable parties are persons who not only have
an interest in the controversy but an interest of such a nature that a final
decree cannot be made without either affecting that interest or leaving
the controversy in such a condition that its final termination may be
wholly inconsistent with equity and good conscience. DID WE READ?
xxix.
xxx.

xxxi.

xxxii. RULE 14 IMPLEADER

xxxiii. Is a party adding a claim to get reimbursed if the party is found guilty? Cannot
be a claim stating that the current D holds no guilt or shouldnt be being sued. In
that case, we trust the court to figure out the error and that the P will lose.
xxxiv.

xxxv. FIRST DETERMINE RULE AUTHORIZATION

a. 14a-When a defending party may bring 3rd party


a. 14a1- D may bring as 3rd party P, on a non party who is or may be liable to it for all or
part of claim against it. Must be within 14 days after serving original answer or else will
need courts leave
i. Is or may be liable party is not required to bring in third party 14a1
1. Doesnt work in LA for tort/ every tub
b. 14a2- 3rd party D
i. (a) Must assert any defense against 3rd party Ps claim under rule 12
ii. (b)-Must assert any counterclaim against 3rd party P under Rule 13(a), and MAY
assert any counterclaim against 3rd party P under rule 13(b) or any cross claim
against another 3rd party D under 13g
iii. (c)- may assert against original P any defense that the 3 rd party P has to the Pc
claim
iv. (d)- May also assert against the P any claim arising out of STOO that is the
subject matter of the Ps claim against 3rd party Plaintiff
c. 14a(3)- Original P:
i. May assert against the 3rd party D any claim arising out of the STOO that is the
subject matter of the Ps claim against the 3rd party P.
d. 14a(5)-3rd part D against non-party
i. May proceed under this rule against a nonparty who is or may be liable to 3 rd
party D for all or part of any claim against it (4 th party)
b. 14b-When P may bring in a 3rd party
a. When a claim is asserted against a P, the P may bring in 3 rd party if this rule would
allow a D to do so. (go back to test)
b. Can 2 3rd party D on different claims bring a claim against each other?
i. Make a new claim all together, use 1404 to get into the same venue and than
42 to consolidate.
c. If no contract look to local tort law to see if reimbursement is allowed
i. In la only get what that person owes, harder to use impleader

xxxvi.
xxxvii. DETERMINE POWER TO BRING IT

a. SMJ
a. 1331
b. 1332
c. 1367
i. For Diversity
1. 3rd party P can bring in whomever he wants
a. But P cannot make a claim against the 3rd party D if that would
destroy complete diversity
2. P could not implead non-diverse third party D in order to get around
complete diversity
3. Banks v. City of Emeryville- do not need independent SMJ for impleader
of 3rd party, but do for claims brought against them by P.
b. IPJ
xxxviii.

xxxix.

xl.
xli.
xlii.
xliii.
xliv. RULE 24 INTERVENTION

xlv. FIRST RULE AUTHORIZATION

1. As a right (not same as compulsory) 24a


a. Court must permit anyone to intervene who
i. statute give an unconditional right to intervene 24a1 Or
ii. Claims to have a interest to the transaction where his right to protect his interest
would be impaired or impeded (practical matter) if not allowed to intervene?
24a2
1. Unless an existing party accurately represents interest. 24a2
a. Motives do not matter
2. Permissive 24b
a. Court may permit anyone to intervene who:
i. Has a conditional right to intervene by fed statute 24b1A or
ii. Has a claim or Def that shares with the main action(one trying to intervene in) a
common question of law or fact. 24b1B
1. Atlantis v. US- Can intervene when part has interest in same property or
transaction and decision in favor of adverse party would require courts to
rule against potential intervener because of State Decisis
2. Bustop v Superior Court- Any party can intervene who before litigation
has an interest in the success of either of the parties
a. Here bustop found that since bustop had interest, cause all parents
have interest where children go to school.
b. Government officer or Agency- 24b2
i. On timely motion, court may permit a fed or state governmental officer or
agency to intervene if a partys claim or defense is based on:
1. Statute or executive order administered by the officer or agency; OR
2. Any regulation, order, or agreement issued or made under that statute or
executive order.
c. Courts discretion-24b3- Consider whether would unduly delay or prejudice the
adjudication or original parties.
i. Closer to trial=less chance of intervention.

xlvi. CHECK JURISDICTION/ POWER

1. SMj
a. As a righti. Can get it goes closely related enough to show common nucleus
b. Permissive
i. Must likely not close enough related to get it, otherwise it would be as a right
c. Diversity
i. Intervene as non-diverse P based on diversity-no supp
ii. Intervene as non-diverse D based on diversity-supp available
2. IPJ/venue- waiving them by joining.
xlvii.
xlviii.
xlix.

l.

li. INTERPLEADER

lii. RULE 22- RULE INTERPLEADER

liii. Stakeholder wants court to bring parties together to decide whom they have to
pay
a. Authorization first
i. By a Plaintiff
1. Possible exposure to double or multiple liability 22a1
a. Claims must total more than value of the fund2. Proper even though
a. Claim lacks a common origin or are adverse and independent22a1A
b. P denies liability in whole or in part 22a1B
ii. As A Defendant 22a2
1. D may bring an interpleader claim by means of cross claim or counter
claim and then join any necessary claimants in the action (19,20)
b. Then Jurisdiction
i. Ipj- normal
ii. SMJ-normal
iii. VENUE 1391

liv. 28 USC 1335-STATUTORY INTERPLEADER (allows injunctions, rule


doesnt)

lv. CHECK AUTHORIZATION


a. DC shall have original jurisdiction of any civil action of interpleader or in the nature of
interpleader filed by any person, firm, or corp, association, or society. Must have
money, property, note, bond, etc with vale of over $500. IF:
a. Two or more Adverse claimants, or diverse citizenship as defined in 1332 are
claiming or may claim to be entitled to that money or any benefit that arises by
virtue of it; AND IF
i. Only claimants have to be diverse
b. P has deposited the money or property or has paid loan into the registry of the
court
c. Doesnt matter if the claims have no common origin or are adverse
i. Classic interpleader- disinterested, just wants to know who to pay
ii. In the nature of interpleader-stakeholder also has a claim
lvi. CHECK POWER
1. SMJ
a. 1335- own standards for diversity
i. $500 or more
ii. Minimal diverse citizenship amount claimants (not the stakeholder)
iii. Deposited money with court
2. IPJ
a. 2361- Fed court may commit national wide service and injunctions for helping
to determine interpleader disputes
3. VENUE
a. 1397- In any district where one or more of the claimants reside

lvii.

lviii. Class actions

lix. RULE AUTHORIZATION


1. Rule 23: Class Action
a. One or more members of a class may sue or be sued as representatives on behalf of
all members:
i. Requirements that you must have: 23(a)
1. (a)(1)-Class is so numerous that joinder of all members is impractical
2. (a)(2)- questions of law or fact common to the class
3. (a)(3)-claims or defenses of representative parties are typical of the
claims or defenses of the class, AND
4. (a)(4) Representative will fairly and adequately represent interest of
class
a. Devlin- representative parties also goes to attorneys
b. Hansberry v lee- Must be adequate representation of members
of a class, or judgment will not be binding on the parties not
adequately represented
i. Racist case, 95% didnt want black people in the
neighborhood, black guy came back and court found that
his interests were not adequately represented.
b. May be maintained if: 23(b)
i. 23b(1)- Prosecuting separate actions by or against individual class members
would create risk of:
1. (a) Inconsistent or varying adjudications with respect to individual
class members that would establish incompatible standards of conduct
for the party of opposing class;
lx.
lxi.
OR
lxii.
2. (b) Adjudications with respect to individual class members would be
dispositive of the interest of other members not parties to the
individual adjudications or would substantially impair or impede
ability to protect interest
a. Class members claim interest to a limited fund (indian fishing
case)
b. Does not extend to money in general
ii. 23b2- Party opposing class has acted or refused to act on grounds that apply
generally to class, so that final injunctive relief is appropriate respecting the
class as a whole; OR
1. Only when single injunction or declaratory judgment-not individual
awards
2. Meant for civil right
iii. 23b3-Court finds that the questions of law or facts common to the class
members predominate over any questions affecting individual members, and
that a class action is superior to other available methods for fairly and
efficiently adjudicating the controversy. Matter pertinent to these findings
include
1. Class members interest in individually controlling the prosecution or
defense of separate actions
2. Extent and nature of any litigation concerning the controversy already
begun by or against class
3. Desirability or undesirability of concentrating the litigation of the
claims in the particular forum
4. Likely difficulties in managing a class action
5. Notice is mandatory and class members must be afforded the right to
opt out 23c2b

lxiii.

6. Not mandatory to join 23c2b-more rules about this


iv. Injunctive/declaratory relief (most common)
v. Common questions predominate the suit
1. Class action would be superior to other methods
c. 23(c)-(h)= procedure
POWER/ JURISDICTION
1. SMJ- 1332(d)
a. (d)(2)- DC shall have original jurisdiction over any civil action in which amount in
controversy exceeds the sum or value of $5,000,000, exclusive or interest and
costs, and is a class action in whichi. (d)(2)(A)- any member of a class of Ps is citizen of a state different from any
defendant
ii. (d)(2)(b)-Any member of a class of P is a foreign state or citizen or subject of
a foreign state AND any defendant is a citizen of a state; OR
iii. (d)(2)(c)- Any member of class of P is a citizen of a state AND any D is a
foreign state or a citizen or subject of a foreign state.
b. D(3)- DC MAY REFUSE IF 1/3-2/3 ARE FROM SAME STATE AND PRIMARY D ARES
2. WHAT ABOUT IPJ?
a. Normal if people have ability to drop out before hand. If not, were not sure.

lxiv.

lxv. SMJ and IPJ

lxvi. SUBJECT MATTER JURISDICTION

1. SUBJECT MATTER JURISDICTION-Article 3 2, courts have jurisdiction over certain disputes


a. 1332-diversity?
i. Need Complete diversity
1. 1332(a)-Citizenship of people=Domicile (US/ Permanent resident)
a. Changes if move/ arrive and intend to remain indefinitely or
foreseeable future-no plans to leave
b. Start with last known place move forward
2. 1332(1)-Of Corporations= hertz= incorporated + headquarters
3. Partnerships= all states partners are domiciled in. -Belleville
ii. $75,001
1. good faith
2. One P v. One D- Can aggregate for different Claims (not for Diff theories
for same claim)
3. One P v Multiple Da. Can aggregate for single claim (trying to establish who has to pay)
b. Cant for different claims
4. Multi P v Multi D
a. Can aggr individual claims, cannot join their claims
b. 1331-Federal question ?
i. Fed law must create Ps claim (cause and remedy)
ii. Case must turn on issue of interpretation of federal law
1. Smith= federal issue on face stated by P
2. Grable= congress wants case in fed court
a. Number of cases effected
b. Desirability of the forum
c. 28 U.S.C. 1367
lxvii. When District courts have original jurisdiction, the court shall have supplemental
over all other claims that are so related to claims in action that they form part of
SAME CASE AND CONTROVERSY under art III of constitution. Includes joinder and
Intervention
i. CAN WE (requires)
1. Pending case with Original Jurisdiction
2. Claim must be so related to form same constitutional case-1367a
a. Same case and controversy under art 3 of const (codifies Gibbs)
i. Case= anything that would ordinarily be brought together
ii. UMW v. Gibbs- common nucleus of operative fact.
1. Would Claims ordinarily be expected to try them all in
once judicial proceedings? (Similar to same
transaction, but different)
2. Operative facts= who, what, how, why
3. If you pass R-20s common transaction or occurrence,
court will mostly likely pass under Gibbs common
nucleuses of operative fact
iii. Applies to Ds and Ps
3. Founded solely on diversity? (Codification of Owen v. Kroger) 1367b
a. If yes- NO SUPP JURISDICTION on
i. Claims By Ps against persons made parties under R.14,
R.19, R.20, R.24
1. Inconsistent with the jurisdictional requirement of
1332
a. Amount in contrevsory is okay someone else
has. you are ok as long as one person along the
line meets it-Allapatha

ii. Claims By Peron who would be joined as Ps under rule 19 or


seeking to intervene as P under 24
b. Such cases would be against Strawbridge
c. ANALYSIS:
i. Is Independent jurisdiction? Yes, than Supp doesnt matter
ii. Original Jurisdiction based on Diversity ? If not, then stop
iii. Claim by P?
1. Claim against persons added under 14,19,20,24
a. If yes, does it destroy complete diversty?
i. Yes=barred
ii. No=move on
iv. Would party be added as P under 19 or 24
1. If yes, destroy diversity?
a. Yes: barred
b. No=all good
4. Fairview Park v. Al Monzo- Even if 1st claim dismissed, Supp can go on,
unless dismissed for SMJ grounds- at least for crossclaim/ can maybe
argue for counter
ii. SHOULD WE? (Courts may decline to join if 1367c)
1. Complex or novel issue of state law
2. Claim would dominate other claim (lot more evidence, or lot more money)
3. Court have dismissed all claims over which it has original jurisdiction
4. Exceptional circumstances with compelling reasons.

lxviii. InPERSOM JURISDICTION

1. Territorial- Pennoyer
a. Domicile, Consent, presence, Appearance
2. Specific
a. Action arises out of contact w/ forum state
3. General
a. Goodyear-continuous and systematic so as to feel at home
4. Quasi/in rem
a. Property attach
lxix.

lxx.
lxxi. GENERAL DISCOVERY RULES

1. Pretrial conference FRCP 16- ADD 16 A- cant edit unless manifest error
2. First step is to plan how discovery will take place 26 F
a. Meet with other attorney at least 21 days before scheduling conference under rule 16,
26(f)(1)
i. 26a(1)(b)-cannot begin seeking discovery until meeting, unless authorized by
rules, stipulation, or by court order.
b. Discovery plan
i. 26f3 discover plan must state the views on
1. 26f3A- Automatic disclosures- should any changes be made in the timing,
form, or requirement
2. 26f3B- Discover scope and schedule- subjects on which discovery may be
needed, how long it will take, and if it should be limited
3. 26f3C- electronic information- issues about the disclosure of electronic
information
4. 26f3D- privilege issues- any claim about claims of privilege or protection
of trial prep
5. 26f3E-discovery limits- should changes be made to the limitations on
discovery
6. 26f3F- any other order the court should consider
3. Signed/Served and sanctions
a. 26a4-all disclosures must be signed/served
b. Broader discovery related sanctions 26G
i. Rule 11 type sanctions-a lot less harsh than 37
ii. 26g2- strike it,
4. Duty to supplement
a. 26e1-requires that attorney continuously supplement the documents they hand over
5. Court can alter the amount of depositions and interrogatories-26b2A

lxxii.

lxxiii. REQUIRED DISCOVERY


lxxiv.
1) Initial required disclosures (info that must be given to the other side before the other party
makes discovery request) 26a
a. Time limits for required initial discovery
i. With 14 days of the 26f conference- 26a1C
b. MUST GIVE
i. 26a1Ai-Each person likely to have discoverable information that may be
used to support the disclosing partys claims or defenses, and:
1. Their name (not really bad witnesses, only ones that might support your
claim or defenses)
2. Their address and telephone if known
3. The subject of information they may have
ii. Aii-Copy or descriptions (location and category) of all documents,
electronically stored information, and tangible things that may be used to
support the disclosing partys claims or defenses,
iii. Aiii Computation of the damages sought by disclosing party and
documents used for that computation
iv. Aiv- any insurance agreement under which an insurance business may be liable
c. Time limits for required disclosures for additional parties after conference
1. 30 days after being served or joined 26a1D
2) Required disclosures about expert witnesses-26a2
a. What Must You do

i. Party must disclose the identity of any expert witness it may use at trial-26a2A
1. Witness can only testify to what the saw or heard. Expert can testify and
give an opinion
a. Experts must prepare and sign a report containing- 26a2B
i. All the opinions witness will express and the reasons for
expressing them-2Bi
ii. Facts and data considered by the expert in forming those2Bii
iii. Exhibits the expert may use- 2Biii
iv. Qualifications of the expert and list of all publications in last
10 years- 2Biv
v. Other cases in the last 4 year expert has testified for- 2Bv
vi. How much expert will be paid- 2Bvi
b. Can depose, after report is do
c. How to define retained or specially employed-ager
i. Case by case
1. Manner in which consultation was initiated
2. Nature type and extent of information or material
provided or determined by expert in connection with
his review
3. Duration and intensity of the consultation
4. Terms of consolation if any (pay, terms, etc)
b. Limits
i. Time to disclose
1. 90 days before trial 26a2D
ii. Trial prep experts 26b4A (see below)
1. Protected trial prep experts
a. Drafts of the report 26b4B are protected under trial prep mat
b. Communications between the attorney and the expert 26b4C
2. Non-testimonial experts 26b4D
a. Is protected from interrogatories and depositions
i. Unless exception circumstances as in Trial prep
1. EX: Data no longer available otherwise
3) Pretrial Disclosures
a. What you have to do- 26a3a
i. 30 days before trial, provide other party and promptly file about evidence unless
used for impeachment solely:
1. Name, address, and telephone (if not previously provided) of witnesses
separated by
a. Those it expects to call
b. Those it will call if needed
c. Designation of which witnesss testimony will be used by
depositions and transcript of the important parts
2. All documents and exhibits
a. Those expect to use
b. Those use if need arises
b. Limiting disclosures 26a3b
i. Must limit disclosures shortly before trial (30 days before trial 26a3B).

lxxv.

lxxvi. REQUEST DISCOVERY ATTACK PLAN


lxxvii.

lxxviii. FIRST DETERMINE SCOPE:


a. Discoverable information/ scope
a. Anything relevant that is or could lead to the uncovering of admissible
evidence at trial 26(b)(1)

b. Relevant=federal rules of evidence- anything to make the claim more or


less likely
c. Connect facts to the rule for the claim to show it is relevant
lxxix.

lxxx. SECOND DETERMINE WHAT METHOD YOU ARE USING

lxxxi. Rule 26D- Can use any method in any order


1) Interrogatories-R33
a. What is does?
i. You ask a question and get an answer from the opposing party that the
side is committed to that is highly filtered and carefully phrased.
ii. Best for information that may require a little research and that no one
person would know off the top of their head
b. Limits
i. Only 25 allowed under 33a1, more can be granted by court or agreement
ii. Look to 26(b) Scope 33a2
1. 33a2- interrogatories MAY not need be answered until compilation
is complete
a. Done by motion for protective order 26c until specified time
2. 30 days to respond 33b2
3. It is okay to hand over a bunch of unsorted files as long as it is no
more difficult for the party receiving the files to find the answer to
the interrogatories than the party that sent them. R33d
c. Questions that are not answerable yet- say what you can
i. 26e- Duty to supplement later on
2) Depositions-R30-1 day 7
a. What it doesi. Unfiltered/Oral testimony under oath that is transferred into words, or
video tapes- prevents people from changing story
ii. Can be used for impeachment during trial
iii. Same as calling witnesses in court, good way to see what witness or party
for other side will say.
b. General Requirements- 30b
i. Must give written notice to all other parties
1. Must state time, and place of deposition
2. If known, name and address of the deponents name, otherwise
description of them. Or class of them
3. 30b3- Method of recording must be stated
a. may add on another method afterwards with additional
notice
lxxxii.
c. Limits
i. 10 of them- 30a2Ai
ii. If not a party, need subpoena under 45 to depose
iii. Deposition of Expert- If person requires report, then can only depose after
report-26b4A
iv. Other party can have lawyer present, and question must be within scope
v. Leave needed when:
1. Going over 10
2. Deposing a person more than once-30a2Aii
3. Take it before conferring in discovery conference 30a2Aiii
4. Person is in jail 30a2B
3) Productions of documents 34
a. What It is/ does
i. Allows you to request-Any writings, drawings, graphs, charts, photos,
sound recordings, or other date compilations stored in ANY MEDIUM34a1A

ii. Allowed to go on to land to inspect, measure, survey, photograph, or


sample 34a2
iii. Can be a Document from 26a2-parties have to list all documents they
may use
b. Limits
i. Scope under 26(b)- 34
ii. Must describe with reasonable particularity the item -34b1A
1. Must specify reasonable time If going to see something-34b1B
iii. Per 45- if they are from a nonparty, have to request by the way of a
subpoena- 34c
1. Duces Tecum- come and bring it
c. Time Frame
i. 30 days to respond unless otherwise agreed or by court order-34b2a
4) Physical and mental examinations 35
a. What it is?
i. Chance to have a party, whose mental or physical condition is in
controversy examined by physical and mental expert to provide evidence
b. Limits
i. Must be done by way of motion, for good cause, and with notice sent to all
parties and person to be examined- 35a2A
1. Vinson-need to balance Discoverers right to discovery v. other
parties right to Privacy/ must be in controversy
a. Cant inquire into past sexual history
b. No right to have attorney present
ii. Health must be in controversy and related-scope/ in question?
iii. Must specify the time, place, scope of exam and who will perform it35a2b
c. Court May order for person under legal control or custody
5) Request for admission 36
a. What is it
i. A party can request that another party admit the truth of any matter that
fall within 26b1 (non-privileged and relevant) relating to
1. Facts, that application of law to fact, or opinions about either and
36a1A
2. The genuineness of any described document. 36a1b
a. Have to send a copy of document with the request 36a2
ii. 36b- If admitted= conclusively established under court.
b. Limits
i. Court May allow withdrawal- 36(b)
c. Time
i. Have 30 days to respond 36a3, can be extended/ shortened per 29
ii. Dont answer=have to pay reasonable cost of attorney fees to disprove!
37c2

lxxxiii.
lxxxiv. THIRD ASK IF ANY EXPECTIONS APPLY

1. GENERAL EXCEPTIONS-Exceptions court or parties can use (discretion) 26b2C


a. Discovery would be unreasonably duplicative or could be obtained from a more
convenient, less burdensome, or less expensive source. 26b2Ci
b. The party seeking had ample opportunity to obtain the information by his
discovery 26b2Cii
c. The burden or the expense of the discovery outweighs the benefit 26b2Ciii
2. 26c-protective order- an order from the court saying you dont have to do
something.
a. Mover must have good faith and attempted to fix issue without court first
3. Privileged material 26(b)(1)
a. Parties can only obtain discovery regarding non-privileged material

i. Attorney-client, priest-pennant, and husband-wife


1. Slightly being extended to doctor-patient when it extends to that
person mind
ii. UPJOHN includes top line corporate managers but we dont know how far
1. Reports between attorney and board are privileged
2. Case by case: who has power to make decisions
3. In this case, extended it to surveys. Who is talking to lawyer as a
lawyer
iii. Privilege protects the communication, not the underlying evidence.
1. Look at purpose
a. Legal purpose (advice) protected, business people not
protected
iv. Hickman v Taylor- Questions regarding the extent to which a party may
inquire into oral and written statements fo witnesses secured by adverse
partys counsel
1. AC privilege Does not extend to information that secures from
witness acting for his client, unless info is product of the lawyer and
peers into his head.
b. 26(b)(5)-Procedure for stating a privilege or protected trial materials
i. Must expressly claim privilege
ii. Must describe the nature thing
4. Electronic discovery-undue burden or cost-26b2B
a. Party need not provide electronic information that it identifies as not reasonably
accessible
i. Data is encrypted and stored in larger volumes
b. If motion, party from who ED is sought, must prove burden
i. Court can still force it, if requesting party shows good cause
c. Litigation hold- communication issued as a result of current or reasonably
anticipated litigation that suspends normal disposition or processing of records
i. Company issue litigation hold periodically to keep fresh in employees minds
ii. Communication to key partners duty to preserve
iii. Instruct all employees to produce electronic copies of their relevant files
1. Back ups
d. Zubulake-does it apply to all discovery?
i. Presumption that responding party must bear the expense of complying
with discovery requests, but it may invoke the district courts discretion
under 26(c) to grant orders protesting under undue burden
ii. Developed new Rowe Test-Cost shifting balance:
1. Extent to which the request is specifically tailored to discover
relevant information
2. Availability of such information from other sources
3. Total cost of production compared to amount in controversy
4. Total cost of production, compared to resources available to each
party
5. Relative ability of each party to control costs and its incentive to do
so
6. The importance of the issues at stake in the litigation; and
7. The relative benefits to the parties of obtaining the information
iii. This isnt a check list, but rather factors.
5. Trial Prep Materials 26b3
a. Attorney cannot request information prepared by opposing council or
representativei. Hickman- cannot ask for material that would improperly peer into the
opposing attorneys head (core Principle)
1. Witness statements may be allowed, but couldnt get notes about it
or anything that goes to far into head.

ii. Must meet following elements:


1. Documents or tangible things
2. Prepared in anticipation of litigation (difficult part)
a. Summaries for interrogatories would not count
b. Stuff in regular business would not count
3. Prepared by or for another party
iii. UNLESS:- 26b3Ai-ii
1. They are discoverable in scope; AND
2. Party shows substantial need for the material for its cases and
that without undue hardship, can not obtain equivalent
a. Substantial need-party died
b. Undue hardship- really expensive
3. UNLESS- 26B3B
a. Materials reveal attorneys thought processes, impressions,
conclusions or legal theories
6. Protected expert witnesses material: 26b4
a. Depose if may present at trial
b. Drafts of the report 26b4B
c. Communications between the attorney and the expert witnesses 26b4C
i. Exception-Ci-iii
1. Related to Compensation for testimony
2. Data or facts that the partys attorney provided and that expert
considered in forming opinions
3. Identify assumptions that the partys attorney provided and that the
expert relied on in forming the opinions to be expressed
d. Communication between attorney and non-testimonial experts. 26b4d
1. Normally cannot use Interrogatories or depositions to discover facts from
expert who has specially employer or retained by is not expected to be
called as a witness
2. Exceptions
a. Medical examinations
b. Exceptional circumstances under which is impracticable for party to
obtain facts
i. -few experts in a field-date
ii. no longer available
3. Informally contacted experts
a. Ager- if you can get nothing from a retained non-testimonial than
you can get nothing from a non-retained non-testimonial expert.
b. How to define retained or specially employed-ager
i. Case by case
1. Manner in which consultation was initiated
2. Nature type and extent of information or material
provided or determined by expert in connection with
his review
3. Duration and intensity of the consultation
4. Terms of consolation if any (pay, terms, etc)
lxxxv.

lxxxvi. IF THEY REFUSE / ARE ASSHOLES

1. Motion to compel- MEANT TO DEAL WITH NON-DISCLOSURE


a. 37a-motion to compel -court telling the recipient of the discovery request you must
comply
i. 37a3a- for initial
ii. 37a3b- for failure to respond.
1. Even if opponent hasnt given yours
b. 37(c)- fails to tell you witness required under rule 26 at beginning, lose that witness
c. In order to do it

1. Try and contact person first and resolve in good faith


2. If doesnt work, then must make a motion with an affidavit that says
you made a good faith effort to resolve problem first
ii. If fail to comply 37b2 or 26g
1. Non-party
a. Contempt of court to proceedings-could go to jail until fix
violation
2. Party
a. Barring defenses, striking pleadings, default judgment,
dismissal, MUST attorney fees
2. Rule 26(g) Sanctions- meant to deal with oppressive use, false info etc.
a. Attorney has to sign every discovery request and response, so they represent
certain things
b. Rule 11 does not apply to discovery since we have rule 26

lxxxvii.