I.

Personal Jurisdiction 5

1. Tag jurisdiction 5

2. Jurisdiction over property (this really isn’t PJ) 5

3. Minimum Contacts 5

4. General Jurisdiction 6

5. Consent 7

II. Subject-Matter Jurisdiction 7

A. Jurisdiction under 28 U.S.C. § 1331 7

B. Jurisdiction under 28 U.S.C § 1332 8

a) Diversity of Citizenship 8

b) Amount in Controversy 9

C. Removal of Suits 10

III. Venue 12

A. Determining “residency” 12

B. Transfer of Venue 13

IV. Pleading 13

A. Rule 7 Pleading Elements 13

B. Complaint 14

1. Rule 8(a) Requirements 14

(a) Conley Test (Original Test) 14

(b) Twombly Test (New Test) 15

(1) Iqbal Two Step Test 15

C. Service of Complaint 16

1. Summons must contain the following — Rule 4(a) 16

2. Waiver of Service — Rule 4 (d) 16

3. Basic Requirements — Rule 4(c) 17

4. Serving individual within a judicial district of the US — Rule 4(e) 17

5. Serving an Individual in a Foreign Country — Rule 4(f) 17

6. Special Forms of Service 18

7. Proving Service — Rule 4(I) 18

8. Time Limit for Service — Rule 4(m) 18

9. Rule 5 — Service of Pleadings and other Documents 19

1
 10. Voluntary Dismissal by Plaintiff — Rule 41(a) 19

a) Rule 41(a)(1) 19

b) When could the Plaintiff Dismiss? 20

D. Answer 20

1. Defendant’s Options after Complaint Occurs 20

2. Default Judgement 20

a) How to get Default/Default Judgement — Rule 55 20

(1) (b) Entering a Default Judgement 21

b) Eitel Default Judgement Factors — Balancing Test (Getty) 21

3. Answering the Complaint — Rule 8(b) 22

4. Answering the Complaint — Affirmative Defenses — Rule 8(c) 23

E. Motions to Dismiss — Terminates the Case 23

1. Defenses The Can Be Raised by Motions to Dismiss — Rule 12 23

2. Rule 12(g) — Joining Motions/Limitation on Further Motions 24

3. Rule 12(h) — Waiving and Preserving Certain Defenses 24

a) Disfavored Defenses — Rule 12(b)(2-5) 24

b) Favored Defenses — i.e. 12(b)(1,6) 25

4. Rule 12(c) — Motion for Judgement on the Pleadings 25

5. Rule 12(e) — Motion for a more definite statement 25

6. Rule 12(f) — Motion to Strike 25

F. Time Limits for Answer, Motion, Etc. 25

G. Amendments 25

1. Rule 15(a)(1) — Amending as a matter of course 25

2. Rule 15(a)(2) — Other Amendments 26

3. Rule 15 (a)(3) — Time to Respond to Amendments 26

4. Rule 15(c) — Relation back to amendments 26

(1) Relation Back Involving Parties Rule 15(c) 27

5. Rule 11 — Ethics of Amendments 27

a) 11(c) Motions for sanctions 28

V. Discovery 29

A. Why have Discovery? 29

B. Scope 29

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 1. Rule 26(b)(1) — what is relevant/allowed? 29

C. Methods 30

1. When does Discovery Occur? 30

a) Things you need to produce automatically (initial) 26(a)(1) 30

b) Things you have to ask for — Rules 30-36 31

(1) Depositions (27-28, 20-32) 31

(a) Oral Rule 30, Written Rule 31 31

i) Subpoena of Non-parties Rule 45 31

ii) Who can be Deposed? 32

iii) Responding to Deposition order 32

iv) Sanctions 32

(2) Interrogatories (33) 33

(3) Documents, Electronic Info, Tangible Things, Land Entry(34) 33

(4) Physical and Mental Examinations (35) 34

(5) Admissions (36) 34

D. Privilege 34

1. When is information privileged? 35

2. Work Product Protection 35

E. Protective Orders, Motions to Compel, Sanctions 36

1. Protective Order — Rule 26(c) 36

2. Motion to Compel — Rule 38(a) — creates court order 36

3. Sanctions under Rule 37(b) — failing to comply with court order 37

4. Rule 26(g) — The Rule 11 of Discovery 37

VI. Judgement with/without trial 38

A. Settlement 38

B. Omitted Sections 38

C. Summary Judgement — Rule 56 38

1. Parties Agree on Facts, Disagree on Law 39

2. Party does not meet Burden of Production 39

3. Limits and Other Info on Summary Judgement 40

D. Juries in Civil Trials 40

1. How Do we choose a Jury? 40

3
 (1) Statutory qualifications 40

(2) Excuses 41

(3) Exemptions 41

(4) Rule 47 — After they’ve met other qualifications 41

(5) Protection of Employment 41

(6) Rule 48 — Other Juror Things 41

(7) Procedural Issues 42

E. Judgement as a Matter of Law — Rule 50 42

1. When are you allowed to ask for JML? 42

2. How is JML determined? 42

3. 50(a) Verdict — Directed Verdict 43

4. 50(b) Verdict — Judgement not withstanding the jury 43

5. Appellate Review of JML 43

F. Motion for a New Trial — Rule 59 43

1. Reasons for a New Trial 44

VII. Post-Judgement Issues: Appeal and Preclusion 44

A. Amending/Setting Aside Judgements 44

1. 60(a) — Clerical Mistakes; Oversights and Omissions 44

2. 59(e) — Motion to Alter/Amend a Judgment 44

3. 60(b) — Relief from Judgment 44

a) 60(c) — Timing and Effect 45

4. 60(d) — Other Powers to Grant Relief 45

B. Appeal 45

C. Preclusion 46

a) Merger 46

b) Bar 46

2. Determining Transactions 46

3. Splitting Claims 46

4. What Judgements Count? 46

5. Claim Preclusion — Res Judicata 47

6. Issue Preclusion — Collateral Estoppel 47

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I. Personal Jurisdiction
A. Jurisdiction is based on due process clauses under fifth amendment (covers
federal government) and fourteenth amendment (covers states). PJ must
conform to the traditional notions of fair play and substantial justice. Multiple
bases for PJ exist —

1. Tag jurisdiction
a) If a defendant enters a forum and is served while he is there, jurisdiction
exists within the forum.

(1) Tag jurisdiction of a corporate officer to gain jurisdiction of the

corporation is not consistent with TNFPSJ

(2) Forcibly brining someone across a states lines to acquire PJ does not
result in PJ — the defendant is not willingly in the forum. This also
applies to airfare.

2. Jurisdiction over property (this really isn’t PJ)

a) State can exercise jurisdiction over property within its boundaries given
that the lawsuit arrises over the property, this in in rem jurisdiction (see
Pennoyer, italics came about after Shoe)

(1) The “property” could be land, money, a marriage, etc.

b) Prior to Shoe, quasi in rem jurisdiction existed in which the plaintiff could
exact in rem jurisdiction over unrelated property to force the defendant
to enter the forum where tag jurisdiction could be accomplished. Courts
came up with a solution in which defendants could make a special
appearance to address this while avoiding jurisdiction.

3. Minimum Contacts
a) If the defendant has enough contacts with the forum, the state can exact
jurisdiction over them (Shoe)

(1) The activities have to be related to those of the lawsuit

(2) Defendants have to avail themselves of the forum (getting monetary

benefit, etc.)

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 (a) Purposeful direction can also work here — even if you aren’t
getting a benefit you are purposefully directing contact with the
forum

(3) One contact can be enough if the company knowingly reached out to
a party within a state and the state has an interest in the suit (McGee)

(4) One contact is not enough if the company did not knowingly make a
sale within the state (products washing up on the shores). A car
entering another state where the defendant didn’t operate and
couldn’t reasonably foresee being involved in action in doesn’t
provide PJ (WWVW). A single, isolated sale of a piece of machinery
through a distributor does not provide PJ (McIntrye).

(5) Location of Harm-plaintiff can sue where harm has been felt, if the
defendant can foresee harm being brought there.

(a) Minimum contacts applies here — in a libel suit the defendant can
be expected to litigate in any forum where their libelous speech
was heard and harmed the plaintiff (Jones, Hustler)

(b) Harm has to occur in the state — the plaintiff cannot be the only
link between the plaintiff and the forum

(6) Sporadic contact does not equal minimum contacts — if a person is

merely interacting with the state jurisdiction cannot be had because
they are not availing themselves of the state (Kulko, children and wife
lived in CA, he lived in NYC, he had not availed himself of the forum
by letting his kids live there)

(7) Some contact is not enough when the defendant faces too much of a
burden by litigating in the forum — Asahi (further, the state had no
interest in litigating a suit between two international companies)

4. General Jurisdiction
a) Occurs wherever someone is “at home.” A suit regarding anything the
person/company is involved in can be brought in this location. For a
single person, this would be wherever they are domiciled. For a
corporation, the test gets a little more complicated:

6
 (1) The place where the corporation is incorporated — general
jurisdiction exists.

(2) The place where the corporation is headquartered — general

jurisdiction exists.

(3) The place where the majority of the corporation’s activities occur (ex.
A company incorporated in Delaware, Headquartered in NYC, and
manufacturing all products in Texas) — jurisdiction likely exists

5. Consent
a) The defendant can consent to personal jurisdiction in any forum or can
waive the defense by failing to bring it on time or by being sanctioned by
the court. This does not apply to SMJ.

II. Subject-Matter Jurisdiction

A. Unlike PJ, this cannot be waived and the court is responsible to checking to
see if it has SMJ of these claims.

B. Declaratory Judgement — if the party is requesting a declaratory judgement the

court has to consider what the hypothetical plaintiff (in a future case if no DJ is
made) would plead. This does not add to federal jurisdiction.

C. Jurisdiction under 28 U.S.C. § 1331

a) Under 1331: “The district courts shall have original jurisdiction of all civil
actions arising under the Constitution, laws, or treaties of the United
States.”

(1) Certain cases will always occur in federal courts: patent law, civil
rights claims, Constitutional violations, bankruptcy, etc..

b) Court created a test in Grable to see if SMJ arose under 1331. Federal
question must be necessary, in dispute, substantial, and cannot upset
balance

(1) If the case can be decided using only state laws, the federal question
is not necessary.

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 (a) Violation of a federal statute alone is not enough to justify federal
jurisdiction. Not all statutes provide private rights of action (Merrell
Dow, FDCA)

(2) If the parties agree on the federal question, the case doesn’t need to
go to federal court because it is not in dispute and thus there is not
question.

(3) If the question is important to the federal system as a whole, it is

considered substantial.

(4) Federal court taking the case on cannot upset the balance of federal/
state courts. Allowing some cases would mean that what should be
state law cases would bombard the federal government with cases.

c) Well-Pleaded Complaint vs. Artfully Pleaded Complaint (Mottley — train)

(1) Well-Pleaded Complaint — the plaintiff’s statement of the cause of

action shows that SMJ Exists

(2) Artfully Pleaded Complaint — articulates a claim that should be in

one court in the terms of another court

(a) An attempt to cheat the court — they might bring up what they
think the other parties defense will be (Railroad ticket case) this
does not mean SMJ exists

D. Jurisdiction under 28 U.S.C § 1332

1. Under 1332: Court has SMJ under cases where the parties are of diversity
citizenship and the amount in controversy requirements (currently
75,000.01) is met.

a) Diversity of Citizenship
(1) If the parties in the suit are domiciled in different states, diversity
exists. If a parties on both sides of the v. are domiciled in the same
location, diversity jurisdiction does not exist (due to lack of complete
diversity).

(a) Domicile for people is easier to determine. When a person is born,

they are typically domiciled in the location they were born. Their

8
 domicile changes when they move somewhere else with the intent
to remain for an indefinite period.

i) Exceptions include when a person is forced to be in a location

indefinitely — prisoners, military members, etc.

ii) No longer changes when a couple is married, this would

create issues where people were not domiciled anywhere
(Mas)

iii) Domicile is determined by a preponderance of the evidence

standard — plaintiff has to show where the defendant is
domiciled (Sheehan, Nevada/Minnesota Casino case)

(b) Domicile for corporations is a little more complicated. The court

has held that corporations can be domiciled in two locations,
where they are incorporated and where their principle place of
business is.

i) Principle Place of Business is determined by the nerve center

of operations for the company — this would typically be the
headquarters or where the majority of corporate officers are
located. (Hertz)

(1) General Jurisdiction (PJ topic) is not affected by this. You

can have GJ in places where the company is not domiciled.

(c) Domicile is determined at the time the suit is brought. You can
move after the event occurred and bring suit in your new domicile
(If your move if truthful) and if you move during the suit the
domicile does not change in regards to that suit.

(d) Domicile for “groups” such as unions that are not incorporated
depends on the location of all the members involved. Given that
the plaintiff in the suit is a member of the “group,” diversity
jurisdiction won’t exist.

b) Amount in Controversy
(1) Currently, the amount in controversy required is $75,000.01. This has
changed overtime and may change in the future.

9
 (2) Amount in controversy can be reached by aggregating claims against
a single plaintiff. Aggregate claims against multiple plaintiff’s will not
satisfy the AIC requirement.

(a) FRCP 18(a) — a party asserting a claim… may join, as

independent or alternative claims, as many claims as it has
against the opposing party.

(b) FRCP 20 — liberal joinder of parties. Parties bringing suit over the
same event are encouraged by the court to join together as
plaintiffs and bring one suit. This helps with efficiency and
consistency of verdicts.

(3) AIC is determined by looking at the plaintiff’s claims and seeing what
they ask for. Plaintiff’s claims are considered to be in good-faith — it
must appear to a legal certainty that plaintiff cannot recover above
$75,000.

(a) AIC could legally be shown as not met if there is a contract or

statute limiting recovery, for instance. Other than that this is a
hard test to fail.

(4) If the original complaint’s AIC passes the above tests it will not matter
what the final decision gives to the plaintiff. I.e. if I request 75,000.01
and end up receiving 25,000 the courts decision still stands because
it had SMJ when it made it.

E. Removal of Suits
1. Suits can be removed to federal court, however, they cannot be removed to
state court. Suits can be removed given they meet the SMJ requirements
under 1331 or 1332.

a) Plaintiff can defeat removal by adding defendants (who defeat diversity)

or by removing a federal question

(1) Court gets to determine 1447(e) whether it will allow joinder of non-
diverse party. If it looks like it is to just defeat removal they may not
allow.

10
 (2) If a non diverse party is dismissed from the case for jurisdictional
reasons, case becomes removable 1446(b)(3)

(3) If Plaintiff goes to one of the defendants domiciles to file, the

defendants as a whole cannot remove

b) If defendant files for removal, the burden is on them to show that the
federal court has SMJ. If the court determines federal SMJ does not
exist, it will be remanded to state court.

(1) Plaintiff is not allowed to remove at any time.

(2) Counterclaims arising under federal law do not provide for removal.

(3) If the plaintiff goes to the home state of the defendant and brings suit
there, the defendant cannot remove the case under 1332. The case
can still be removed under 1331.

2. If all defendants agree to removal to federal court, they can request the
removal and it would be moved. If even one defendant doesn’t want the
case removed, the case will not be removed.

a) If the court agrees that the removal is appropriate, it will typically use all
of the decisions made in the case by the state court before the removal
occurred — this is called “law of the case.” The court can still change
any of the decisions and, in federal court, they will typically review under
FRCP.

b) If the federal court determines that personal jurisdiction does not exist
(this would not exist for the federal or state court), the case is dismissed.

3. Removal has a deadline — 30 days after service is achieved (typically), if

there is someone who was not properly served but still on notice the thirty
day clock is ticking. A defendant who is brought into the case later can seek
remand/removal, the defendants who have already been served can remove
without them.

a) If the plaintiff adds a federal question later in the case, the case can then
be removed by the defendant. 30 days would start at the point it became
removable (amount of time that has passed from original filing would not
matter).

11
 b) If a non-diverse party is removed, there is now a 30 day limit for removal
to federal court. There is a one year limit to this so if the party is
dismissed after a year the case cannot be removed. If the plaintiff has
been fraudulent in joinder the one year limit may be bypassed.

III. Venue
A. Venue for removed cases is the federal district court in that covers the location
of the state court where the case is pending. 1441(a)

1. Removed cases do not apply 28 USC § 1391, venue is appropriate as it is

the district court for original state location.

B. 28 USC § 1391 (b) provides for how venue is determined for cases originating
in federal court:

1. A judicial district in which any defendant resides, if all defendants are

residents of the state

2. in which a substantial part of the events or omissions giving rise to the claim
occurred, or a substantial part of property that is the subject of the action is
situated

3. If neither 1 or 2 apply, the venue is any district in which the defendant is

subject to personal jurisdiction.

a) Just because PJ exists, the venue may not be appropriate. PJ becomes

the fallback if (b)(3) kicks in.

(1) It will kick in if there are multiple defendants domiciled in different

states, AND

(2) The events (property) giving rise to the lawsuit occurred (located)
outside the US, OR

(3) The events (property) is so spread out across districts that no venue
hosted a “substantial part”

C. Determining “residency”
1. A natural person (including a lawfully admitted alien) resides in the judicial
district in which they are domiciled (see SMJ)

2. Corporations — resides in state where it is subject to PJ for the action, as

plaintiff can bring in principle place of business.

12
 a) If the state has multiple districts — treat each district as if it were a state,
if the corporation has minimum contacts with the district, venue is
proper.

b) If there is no district that fits above, then pick the district with the most
significant contacts.

3. A defendant who is not a resident of the US can be sued with proper venue
in any district, the joinder of such a plaintiff would be disregarded in
determining venue for other defendants.

D. 28 USC § 1391(e) If US Government is defendant, venue is proper where any

defendant resides, where the events happened, or where the plaintiff resides.

E. Transfer of Venue
1. 28 USC § 1404 permits transfer (proper to proper) to any other federal court
where the action could have been brought — no transfer from courts of one
state to courts of another state, this only works for federal courts.

a) This would occur by motion, consent, or stipulation of the parties —

court has the discretion to permit

b) This is a change of courtroom, not a change of law (law of first venue still
applies) (Van Dusen, defendants; Ferens, plaintiffs)

2. 28 USC § 1406 allows for transfer from an improper venue to a proper

venue.

a) The court can also dismiss, or transfer in the interest of justice.

b) Under 1406 the laws in the new venue govern the suit

IV. Pleading
A. Pleading is the set of papers that is filed to begin a lawsuit.

B. Rule 7 Pleading Elements

1. Complaint

2. Answer

3. Answer to Counterclaim

4. Answer to Cross-claim

5. Third-party Complaint

6. Answer to third-party complaint

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 7. (if the court orders one) Reply to answer

C. Complaint
1. Rule 8(a) Requirements
a) Covers the complaint, but it also covers any claim for relief
(counterclaims, cross-claims, third-party claims).

b) Short and plain statement showing the court has PJ, SMJ, Venue

c) A short and plain statement of the claim showing the pleader is entitled
to relief.

(1) There used to be a form, Form 11, within the FRCP to demonstrate
what short and plain was. This form was abolished.

(2) FRCP does not require the plaintiff to set out in detail all the facts on
which the claim is made (Conley, AA railroad case).

(a) Conley Test (Original Test)

i) We assume that the factual allegations made are correct and
determine whether based on that assumption can a claim be
made.

(1) If it can be shown beyond a reasonable doubt that there is

no set of facts that supports the claim, then the case
should be dismissed for failure to state a claim.

(a) The facts basically have to be literally impossible

(martians took my bicycle) to occur or there has to be
no law that would allow recovery under those facts.

ii) McDonnell Douglas Test (Employment Discrimination): This is

not required during notice pleading because the framework
does not come into play in every case and the plaintiff may not
have all evidence available. This is a prima facie case (and is
an evidentiary standard), accordingly the court says it goes
under the burden of production, not burden of pleading. Test
goes as follows:

(1) Show you are a member of a protected class

(2) Show you are qualified for the job in question

14
 (3) Show the employer took an adverse employment action
against you

(4) Show circumstances supporting an inference of

discrimination

(b) Twombly Test (New Test)

i) Complaint has to have enough facts to show that the claim is
plausible, not just possible. This was thought to only apply to
antitrust cases, however Iqbal showed that it applied to any
federal case.

(1) Iqbal Two Step Test

(a) Exclude all conclusory allegations

(b) Examine remaining allegations to see if they plausibly

show a violation of the law using judicial experience and
common sense.

ii) Court attempts to tell us that this is not different than what
was established in the Conley test, however, that could be
debated.

iii) Allegations must plausibly suggest, not be merely consistent

with. Must possess enough heft to show that the pleader is
entitled to relief.

(3) Complaint must give the defendant notice of what he is being sued
for.

(a) Has to help the defendant narrow down what even caused the
suit to be brought against them — for instance, if I am a trending
celebrity and file a claim regarding libel, I need to say what thing
they said was libel.

d) What the relief sought is — this can include relief in the alternative or
different types of relief

e) If you’re uncertain of the facts — 8(d) A party may set out two or more
statements of a claim or defense alternatively or hypothetically (the
pleading is sufficient if any one of them is sufficient). A party may state

15
 as many separate claims or defenses as it has, regardless of
consistency.

(1) Essentially, you can plead two inconsistent theories and let the jury
sort out which one prevails.

f) There are certain situations where there is a heightened pleading

standard and you would be required to plead with specificity. Rule 9(b)
covers fraud and mistake, certain statutes can impose a heightened
standard for claims brought on them.

g) Court can only dismiss the complaint without allowing correction when it
believes the effort is futile and no amount of changes would make the
complaint valid.

D. Service of Complaint
1. Notice has to be reasonably calculated to reach the person being served
(Mullane — newspaper for trustees). Personal service may not be required.

2. Summons must contain the following — Rule 4(a)

a) Name of the court and the parties

b) Be directed to the defendant

c) State the name and address of the plaintiff’s attorney (or if

unrepresented, the plaintiff)

d) State the time in which the plaintiff must respond

e) Notify the defendant that a failure to appear and defend will result in a
default judgment against the defendant for the relief demanded in the
complaint

f) Must be signed by the clerk

g) Must bear the court’s seal

3. Waiver of Service — Rule 4 (d)

a) Everything is mailed to the defendant, asking him to waive his right to be
served

(1) Defendant gets extra time because of this waiver. (60 days from date
of sending instead of 21 days to file answer)

16
 (2) Defendant has to pay the cost of service if he refuses to waive
without good cause. This would be the cost of service and the cost
of related attorney’s fees.

b) Waiver of service is optional on the plaintiff’s part — rule only imposes a

duty on those being served the obligation to avoid unnecessary expense
of serving the summons.

4. Basic Requirements — Rule 4(c)

a) (1) A summons must be served with a copy of the complaint, plaintiff is
responsible for having it served within the time allowed by Rule 4(m).

b) (2) Who can serve? Any person who is at least 18yrs old and not a party
may serve a summons and complaint.

c) (3) Who else? At the plaintiff’s request, the court may order that service
be made by a US marshal or deputy marshal or by a person specifically
appointed by the court. [maybe the person being served is dangerous or
you can’t afford a process server, not automatically free]

5. Serving individual within a judicial district of the US — Rule 4(e)

a) Exceptions: minors, those that are incompetent, those who waive
service, statutes that require different service — minors/incompetent
can’t legally accept service

b) Methods

(1) Follow the state law for service in the state in which the federal court
sits

(2) Personal Service — always acceptable

(3) Leave a copy of summons and compiling at the individual’s dwelling

or usual place of abode with someone of suitable age and discretion
who resides there

(4) Deliver copy of summons and complaint to agent

6. Serving an Individual in a Foreign Country — Rule 4(f)

a) Exceptions: another federal law, minor, incompetent, wavier

b) Methods:

(1) Serve by international agreement

17
 (2) If no international agreement or no specifics for situation:

(a) As prescribed by foreign country’s law

(b) As the foreign authority directs in response to a letter of request

(c) Unless prohibited by foreign law

i) Delivery to the individual personally

ii) Using any form of mail that requires signed receipt

(3) By other means not prohibited by international agreement, as the

court orders
(a) This allows the court to provide an acceptable form of service for
foreign defendants who can’t be reached any other way. Court
says that they apply the rule from Mullane to determine what way
is proper (Rio — casino in Costa Rica).

(b) Court also says that it is not required that the serving plaintiff go
through all other possible methods before asking the court for an
order to allow a method.

7. Special Forms of Service

a) For minors/incompetent — Rule 4(g)

b) For the US as a defendant — Rule 4(i)

c) For States or local governments or foreign states — Rule 4(j)

d) If case raises a state or federal constitutional question and government

is not already a party, must serve AG of state/US — Rule 5.1

8. Proving Service — Rule 4(I)

a) Affidavit Required — unless service is waived, proof of service must be
made to the court.

(1) US Marshal/Deputy Marsh do not need affidavit.

b) Validity of Service — failure to prove service does not affect the validity.
Proof will need to be amended.

9. Time Limit for Service — Rule 4(m)

a) If defendant is not served within 90 days, the court dismisses the case
without prejudice.

18
 b) If the plaintiff shows good cause for the failure, the court must extend
the time period for service for an appropriate period.

10. Rule 5 — Service of Pleadings and other Documents

a) Rule 5(b) — How is Service Made

(1) If a party is represented by an attorney, service under this rule must

be made on the attorney unless the court orders service on the party.

(2) Service in general, paper is served by — mail, clerk, and other means
consented to adds three days to response time Rule 6(d)

(a) Handing it to person

(b) Leaving it with someone at persons office, dwelling as under

above rules

(c) Mailing to last known address

(d) Leaving it with the court clerk

(e) Sending it by electronic means if the person consented in writing

(f) Delivery by any other means that the person consented to in

writing

(3) Email/Electronic Service can be allowed after initial service if parties

consent (or if the federal government has forced it upon the people).
Unless stated otherwise, assume they did not consent.

11. Voluntary Dismissal by Plaintiff — Rule 41(a)

a) Rule 41(a)(1)
(1) (A) Without a court order, subject to [exceptions] the plaintiff may
dismiss an action without a court order by filing

(a) A notice of dismissal before the opposing party serves either an

answer or a mitten for summary judgement; or

(b) A stipulation of dismissal signed by all parties who have appeared

(2) (B) Effect. Unless the notice or stipulation states otherwise, the
dismissal is without prejudice. But if the plaintiff previously dismissed
any federal or state court action based on or including the same
claim, a notice of dismissal operates as an adjudication on the
merits.

19
 b) When could the Plaintiff Dismiss?
(1) Plaintiff can dismiss because a settlement has occurred, the plaintiff
could then file another claim for the settlement not being followed

(2) Plaintiff can also dismiss because they realize they are in the wrong
jurisdiction or venue before the defendant response. This would be
without prejudice

(3) Plaintiff can also opt to dismiss certain defendants or claims before
judgement occurs.

E. Answer
1. Defendant’s Options after Complaint Occurs
a) Settlement with Plaintiff

b) Ignore the Complaint — Default Judgement

c) File a Rule 12 Motion to Dismiss

d) Answer the Complaint

e) Bring Counterclaims

2. Default Judgement
a) Occurs when a party doesn’t respond or responds and then quits
participating in the litigation. While defendant/plaintiff is used below,
anyone can default (Plaintiff on counterclaim, defendant on crossclaim,
etc.)

b) Defendant has 21 days under regular service, 60 days under waiver

before we deem that they have defaulted. This counts every day after the
event occurs — if the final day lands on a day the court is not open the
date is pushed until a day the court is open.

c) Discovery violations and Rule 11 violations can also lead to default

judgement.

d) How to get Default/Default Judgement — Rule 55

(1) (a) When a party against whom a judgment for affirmative relief is
sought has failed to plead or otherwise defend, and that failure is
shown by affidavit or otherwise, the clerk must enter the party's
default

20
 (a) A default is required for the court to make a default judgement for
the plaintiff.

(b) As long as the defendant can show good cause, the default will
be excused.

(2) (b) Entering a Default Judgement

(a) (1) By the Clerk: If the plaintiff’s claim is for a sum certain or a sum
that can be main certain, the clerk—on the plaintiff’s request, with
an affidavit showing the amount due—must enter judgement for
that amount and costs against a defendant who has defaulted for
not appearing who is neither a minor nor an incompetent person.

(b) (2) By the Court. In all other cases, the party must apply to the
court for a default judgement. If person has appeared, party must
be served with written notice of the application at least 7 days
before hearing. Court must:

i) Conduct an accounting

ii) Determine the Amount of Damages

iii) Establish the Truth of any Allegation by Evidence

iv) Investigate any other Manner

e) Eitel Default Judgement Factors — Balancing Test (Getty)

(1) Possibility of Prejudice to the Plaintiff

(a) Plaintiff has no recourse for recovery without the default

judgement

(2) Substantive Merits of the Claim

(a) Plaintiff must state claim on which it can recover — prima facie
case. Needs to be plausible.

(3) Sufficiency of the Complaint

(a) Plaintiff must state claim on which it can recover — prima facie
case. Needs to be plausible.

(4) Sum of Money at Stake in the Case

(a) Recovery sought should be proportional to the harm

(5) Possibility of Dispute Concerning Material Facts

21
 (a) Court is saying that there is no dispute of material fact because
they must take the plaintiff’s allegations as factually true to enter
judgement.

(6) Whether the Entry of Default is Due to Excusable Neglect

(a) If there has been a mistake of some sort, the court may excuse it
and refuse default judgement. Choosing to participate and then
stopping is not excusable.

(7) Whether Default Judgment is Appropriate in Light of the Policy

Favoring Decisions on the Merits

(a) Cases should be decided on the merits when it is reasonably

possible to do so, court has to weigh this against whether default
judgement is appropriate

3. Answering the Complaint — Rule 8(b)

a) Rule 8(b) —

(1) In General. In responding to a pleading, a party must

(a) State in short and plain terms its defenses to each claim asserted
against it; and

(b) Admit or deny the allegations asserted against it by an opposing

party.

(2) Denials — Responding to the Substance. A denial must fairly

respond to the substance of that allegation.

(3) General and Specific Denials. A party that intends in good faith to
deny all the allegations of a pleading—including the jurisdictional
grounds—may do so by a general denial. A party that does not intend
to deny all the allegations must either specifically deny designated
allegations or generally deny all except those specifically admitted.

(4) Denying Part of an Allegation. A party that intends in good faith to

deny only part of an allegation must admit that part is true and deny
the rest.

22
 (5) Lacking Knowledge or Information. A party that lacks knowledge or
information sufficient to form a belief about the truth of an allegation
must so state, and the statement has the effect of a denial.

(6) Effect of Failing to Deny. An allegation—other than one relating to

the amount of damages—is admitted if a responsive pleading is
required and the allegation is not denied. If a responsive pleading is
not required, an allegation is considered denied or avoided.

b) Parties can change the pleading later (freely within 21 days after answer
is filed, later they can go to the court and request) — the court may
sanction for this conduct (especially if admits become denies), or
prohibit it if it is believed to be manipulative, however they should
generally allow the pleading change.

4. Answering the Complaint — Affirmative Defenses — Rule 8(c)

a) Party must affirmatively state any avoidance or affirmative defense 8(c)(1)

b) Party has the burden of proof for the affirmative defense.

c) Defendants can lose affirmative defenses by not pleading them,

however, Rule 15 allows for liberal amendment if you catch the omission
in time.

d) These defenses are considered affirmative:

(1) Claim preclusion

(2) Statute of limitations

(3) Assumption of the Risk

(4) Accord and Satisfaction

F. Motions to Dismiss — Terminates the Case

1. Defenses The Can Be Raised by Motions to Dismiss — Rule 12
a) These defenses can also be raised in the answer, but it is optional to
raise in motion. Certain defenses must be raised wherever you file first.

(1) Lack of SMJ — 12(b)(1)

(2) Lack of PJ — 12(b)(2)

(3) Improper Venue — 12(b)(3)

(4) Insufficient Service — 12(b)(5)

23
 (5) Failure to state a claim on which relief can be granted —12(b)(6)

(a) Court would assume plaintiff’s claims are true and see if they state
a claim. Conclusory allegations are disregarded.

(b) Court should allow the plaintiff to amend the complaint (unless it
is literally impossible to fix it). This is reversible error.

(6) Failure to join party under Rule 19 [indispensable parties — not

common]

b) A motion asserting any of these defenses has to be done before the

answer occurs, and if it is raised in a motion it can’t be raised in the
answer. No motions after answer is entered.

(1) Court may allow amendment of the motion, see Rule 15(a)(1)

2. Rule 12(g) — Joining Motions/Limitation on Further Motions

a) Right to Join. Any motion under this rule can be joined with any other
motion

b) Limitation on Further Motions. Except as provided under 12(h), a party

raising a motion cannot make another motion later raising defenses that
were available at the time of the first motion.

3. Rule 12(h) — Waiving and Preserving Certain Defenses

a) Disfavored Defenses — Rule 12(b)(2-5)
(1) These defenses are those that can one waived by the defendant, they
are considered disfavored. See Rule 12(b)(2-5)

(2) 12(h)(1) A party waives any defense listed in Rule 12(b)(2-5) by

(a) Omitting it from a motion under Rule(g)(2)

(b) Failing to either

i) Make it by motion under this rule

ii) Include it in a responsive pleading or in an amendment as a

matter of course allowed by Rule 15(a)(1)

(3) Notice of Removal does not preclude these defenses because the a
removal is not a motion. A motion is something that must be acted
upon, while removal occurs automatically.

24
 (a) If the case is removed after the motions occurred, law of the case
kicks in and they won’t be decided again

b) Favored Defenses — i.e. 12(b)(1,6)

(1) 12(h)(2) Failure to state a claim upon which relief can be granted, or
to state a legal defense to a claim may be raised

(a) In any pleading allowed or ordered under Rule 7(a)

(b) By a motion under Rule 12(c)

(c) At trial

c) 12(h)(3) If court determines at any time it lacks SMJ it must dismiss the
action (See SMJ)

4. Rule 12(c) — Motion for Judgement on the Pleadings

a) After the pleadings are closed—but early enough not to delay trial—
party can move for judgment based on the pleadings

5. Rule 12(e) — Motion for a more definite statement

a) If the pleading is really bad, the court will order a more definite statement
and if the order is not obeyed within 14 days the case is dismissed.

6. Rule 12(f) — Motion to Strike

a) Correct abusive complaints or removes insufficient defenses.

G. Time Limits for Answer, Motion, Etc.

1. After motion is denied, 14 days is given for answer to be entered. !2(a)(4)(A)

2. Answer must be entered within 21 days, 60 days if under waiver.

3. If the court is closed (holiday, weekend, other) move to the next day the
court is open.

4. If service is given by mail, by the clerk (i.e. court clerk), or under written
consent three days is added to the response time —Rule 6(d)/5(b)

5. If the court orders a reply, there are 21 days to do so — Rule 12(a)(1)(c)

H. Amendments
1. Rule 15(a)(1) — Amending as a matter of course
a) (1) A party may amend its pleading once as a matter of course within

(1) (a) 21 days after serving it, or

25
 (2) (b) If the pleading is one to which a responsive pleading is required,
21 days after service of a responsive pleading or 21 days after
service of a motion under Rule 12(b),(e), or (f), whichever is earlier

(a) Although the rule says pleading (meaning the answer itself), some
courts allow for motions to be corrected in a similar fashion.

(b) You can only amend as a matter of course one time. Subsequent
amendments would require permission.

(c) Basically, once the motion has been decided, you probably don’t
have time to amend as a matter of course.

2. Rule 15(a)(2) — Other Amendments

a) (2) In all other cases (not under 15(a)(1)) a party may amend its pleading
only with the opposing party’s written consent or the court’s leave. The
court should freely give leave when justice so requires.

(1) Basically, just allow people to amend unless its clear the judge would
not allow leave for amendment.

(2) Appellate Court reviews trial court’s decision on motions to amend

for abuse of discretion. There are two circumstances that will lead to
it being reversed (1) court did not understand that it had discretion,
so erred as a matter of law, (2) court went beyond the bounds of its
discretion

3. Rule 15 (a)(3) — Time to Respond to Amendments

a) (3) Unless court orders otherwise, a required response from an amended
pleading must be used in the remaining time from the original pleading
or 14 days, whichever is later.

4. Rule 15(c) — Relation back to amendments

a) (1) An amendment to a pleading relates back to the date of the original
pleading when:

(1) (a) The law provides the applicable statue of limitations allows
relation back — some statutes are more generous on relation back

26
 (2) (b) the amendment asserts a claim or defense that arose out of the
conduct, transaction, or occurrence set out—or attempted to be set
out—in the original pleading

(a) For example, you didn’t add medical claim in the original pleading
regarding a car accident and chose to add it later (this would
allow for relation back). This allows you to bypass a failure to
meet the statute of limitations

i) If the statute of limitations for the claim has already ran out
before the original filing occurred, relating back does not
bypass the statute of limitations.

(3) Relation Back Involving Parties Rule 15(c)

(a) The amendment changes the party or the naming of the party
against whom claim is asserted, if Rule 15(c)(1)(B)—see above—is
satisfied and if, within the period provided by Rule 4(m)—90 days
—for serving the summons and complaint, the party to be brought
in by amendment.

i) received such notice of the action that it will not be prejudiced

in defending on the merits; and

ii) knew or should have known that the action would have been
brought against it, but for a mistake concerning the proper
party's identity

(1) This is based on what the defendant knew or should have

known, not the plaintiff. As long as it was truly a mistake the
change should be allowed, no matter what the plaintiff
knew.

5. Rule 11 — Ethics of Amendments

a) Rule 11 does not apply to discovery, but applies to every other pleading,
written motion, or paper.

(1) Anyone that participates is on the hook!

b) 11(b) By presenting to the court a pleading, written motion, or other

paper—whether by signing, filing, submitting, or later advocating it— an

27
 attorney or unrepresented party certifies that to the best of the person’s
knowledge, information, and belief, formed after an inquiry reasonable
under the circumstances:

(1) It isn’t being presented for an improper purpose — harassment, cause

unnecessary delay, needless increase cost of litigation.

(a) This is hard to prove. You need some smoking gun evidence!

(2) The claims, defenses, and other legal contentions are warranted by
existing law or by a non-frivolous argument for extending, modifying,
or reversing existing law or for establishing new law.

(3) the factual contentions have evidentiary support or, if specifically so

identified, will likely have evidentiary support after a reasonable
opportunity for further investigation or discovery; and

(4) the denials of factual contentions are warranted on the evidence or, if
specifically so identified, are reasonably based on belief or a lack of
information.

c) 11(c) Motions for sanctions

(1) Motion must be made separately from any other motion

(2) (2) It must be served under Rule 5, but it must not be filed or be
presented to the court if the challenged paper… …is withdrawn or
appropriately corrected within 21 days after service of the motion.

(a) If the sanction is warranted, the court may award to the prevailing
party the reasonable expenses, including attorney’s fees, incurred
for the motion.

(b) SAFE HARBOR RULE — MUST NOT BE FILED AT ALL WITHIN

21 DAYS AFTER SERVICE
(3) (3) On its own, the court may order an attorney, law firm, or party to
show cause why conduct specifically described in the order has not
violated Rule 11(b),

(4) Monetary sanctions should only be done if it is absolutely necessary

to prevent the behavior from occurring.

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V. Discovery
A. Why have Discovery?
1. Allows focus of issues

2. Allows to discard extraneous issues

3. Allows to find out the truth

4. Reduces the risk of surprises

5. Promotes settlement between parties

6. Allows you to improve your case

7. Allows you to hassle your opponent (DON’T DO THIS — ethical constraints

are under rules 26(g) and 37.

B. Scope
1. Rule 26(b)(1) — what is relevant/allowed?
a) Parties may obtain discovery regarding any non privileged matter that is
relevant to any party’s claim or defense.

(1) Privilege could be priest, doctor/patient, attorney/client, spousal.

(2) Evidence is relevant if (FRE 401)

(a) It has any tendency to make a fact more or less probable than it
would be without the evidence; and

(b) The fact is of consequence in determining the action

(3) Scope must now also be proportional to the needs of the case,
considering the following:

(a) The importance of the issues at stake in the action

(b) The amount in controversy

(c) The parties’ relative access to relevant information, the parties’

recourses

(d) The importance of the discovery in resolving the issues, and

(e) Whether the burden or expense of the proposed discover

outweighs its likely benefit.

i) Electronic information is covered by 26(b)(2) and not under the

proportionality rule.

29
 (4) Information within the scope of discovery need not be admissible to
be discoverable

(5) The request needs to be backed up by an actual need — i.e. if the

defendant tells you something and gives no reason for you to believe
it is false, you cannot ask for more discovery on this item

(6) Ask for everything up front! You should know that metadata will be an
issue! Rule 34(b)(2)(d) allows you to request what form you want the
information in.

(7) Pleading and Scope are very connected, you can limit discovery by
getting rid of claims/defenses by using Rule 12 motions.

C. Methods
1. Deadlines can be easily changed and updated, Rule 29 covers some of this.

a) Discovery is controlled by the parties, the court is not involved day to

day. The court can resolve disputes and under rule 26(b)(2)(c) can impose
limits — local rules and standing orders by judge affect this.

2. When does Discovery Occur?

a) Except in a proceeding exempted from initial disclosure under Rule 26(a)
(1)(B) or when the court orders otherwise, the parties must confer as soon
as practicable—and in any event at least 21 days before a scheduling
conference is to be held or a scheduling order is due under Rule 16(b).

b) Rule 34 allows for early discovery of some types of information.

c) 26(d)(3) says that discovery can happen in any order and discovery by
one party does not delay the discovery of another.

3. Categories of Discovery
a) Things you need to produce automatically (initial) 26(a)(1)
(1) Name (address and telephone if available) of individuals likely to have
information and the subject of information that the party may use to
support its claims/defenses

(2) A copy (or description) of all documents, electronic info, or tangible

things that the party has in its possession that may be used to
support claims/defenses

30
 (3) A computation of damages

(4) Any insurance agreements

(5) Any info that would only be used for impeachment is not required to
be disclosed.

(6) Info needs to be disclosed within 14 days of the initial conference

unless you enter agreement to do otherwise. Your duty is independent
of other sides bad behavior so do it anyway!

(7) Just because you haven’t finished investigation you still need to
disclose! If things come up later than would have required disclosure,
you need to amend.

b) Things you have to ask for — Rules 30-36

(1) Depositions (27-28, 20-32)
(a) Oral Rule 30, Written Rule 31
i) Occurs after 26(f) conference

ii) Recorded Oral Interview, under oath.

iii) Ten depositions are allowed per side (ten plaintiff, ten
defendant). Parties can agree to have more, however, the court
can authorize more if parties refuse to agree

(1) One seven hour day for each deponent unless stipulation or
court order, person can be deposed only once.

iv) Parties to the lawsuit are already under authority of the court,
they only need notice to be deposed.

(1) Notice must say who you are looking to depose or provide
a description. The method of note taking must be stated as
well to allow for the preparation for video, stenographer,
etc. Must go to all parties with time and date as well.

v) Subpoena of Non-parties Rule 45

(1) Non-parties to the lawsuit need to be subpoenaed to be
deposed.

(2) Must per served under Rule 4

31
 (3) Recipient may quash or modify — failure to respond =
contempt

vi) Who can be Deposed?

(1) Anyone, including no parties and corporate witnesses under
30(b)(6)

vii) Responding to Deposition order

(1) Seek protective order against whole depo or certain topics

(2) Show up and make objections to certain Q’s

(a) If you make objections, you still need to answer the

question!

(b) There are exceptions to the above rule, if you already

have a protective order you can refuse to answer, you
can also halt depo to go to court and obtain a motion

viii) Deposing Corporations

(1) Party deposing a corporation has to let the corporation
know what information they are trying to obtain and the
corporation has to respond by providing persons within the
company who can answer those questions.

(a) No matter how many people are produced by the

company, it counts as one deposition.

ix) Sanctions
(1) Parties can be sanctioned for failure to answer questions,
failure to provide appropriate witnesses (corporations), and
other actions.

(a) Sanctions can include the costs associated with the

depos or even prohibiting the party from entering
evidence at trial related to the testimony

x) Depos are admissible at trial, they may not be enterable if the

party has not acquired an attorney yet

xi) No Duty to Supplement

32
(2) Interrogatories (33)
(a) Only applies to parties to the suit — no limit to how many parties
can be given

(b) General trigger will be the 26(f) conference, outside limit set under
Rule 16

(c) 25 interrogatories (questions) including discrete subparts, unless

parties stipulate to more/court order.

i) Parties can ask for opinions on fact or law

(d) Interrogatories must go to parties or agents/officers of corporation

(that is a party)

i) They must be answered by the party, they are under oath. Party
must sign the answer, lawyer signs the objections

ii) Still need to be served on the attorney because they are

represented by an attorney

(e) 30 days to respond unless parties/court stipulate otherwise

(f) Motion to compel under Rule 37 if not being done appropriately

(g) Duty to supplement under rule 26(e)

(3) Documents, Electronic Info, Tangible Things, Land Entry(34)

(a) Can be sent 21 days after the service of summons and complaint,
no outer limit other than Rule 16 schedule

i) 26(c) allows for objection and delays in the timing, for instance
if you waived service and haven’t put in an answer yet and are
requested to do discovery

(b) You can make as many requests as necessary — but must be

proportional (see above)

(c) You have to be reasonably particular with what you request — can
specific form of electronic response

i) Needs to be returned in the order you keep it in, or an easily

organized manner.

(d) Anyone can be requested, subpoena for non-party

(e) 30 days to respond unless stipulation/court order

33
 (f) Motion to compel under Rule 37

(g) Duty to supplement

(4) Physical and Mental Examinations (35)

(a) Physical/Mental state has to be in controversy

(b) The court has to order that the mental/physical state be examined

i) Have to show good cause, give notice to all parties

(c) Starts after 26(f), pretrial order sets deadline.

(d) Can also require that reports of other exams be disclosed 35(b)(3)

(e) Only party can be examined

(f) Time to respond, how to respond is how the court orders

(g) No duty to supplement

(5) Admissions (36)

(a) Admission is definitive for this litigation. Admitted question is
agreed upon and cannot be dispute for basis for this suit.

i) Does not impact future litigation

(b) After 26(f) conference, outside limit set by rule 16

(c) You can request unlimited requests for admission

(d) Must be stated separately for each matter

(e) Admissions are only sought by parties

(f) 30 days to respond, unless stipulate/order

(g) Failure to respond = admission

i) Court can allow withdrawal of admission if they believe honest

mistake

(h) Rule 36 has motion to compel, sanctions under rule 37

(i) Duty to supplement

D. Privilege
1. Types of Privilege

a) Attorney-Client

b) Spousal

c) Doctor-Patient (some of these have mandatory reporting for some things)

(1) Psychiatrist-Patient

34
 (2) Social Worker-Client

d) Priest-Parishioner

e) 5th Amendment — self incrimination

2. Very strong protection — waiver applies not only to the document itself but
to the entire subject matter of the document

3. When is information privileged?

a) Elements

(1) Communication

(a) Notes regarding communication — ie diary entries — are

privileged AC communication

(2) From Client To

(3) Attorney or Agent

(4) Made in Confidence

(5) For Purpose of Obtaining Legal Advice

(6) Not for purpose of committing crime or fraud and

(a) Privilege is supposed to allow for people to get sound legal

advice, if you obtain unsound legal advice or use the advice in an
unsound way — privilege can be waived

(7) Not waived

(a) Disclosing documents elsewhere related to a topic waives all the

information related to that topic

4. Work Product Protection

a) Work product is protected — it is generally not discoverable but if there is
a clear need the court can allow for discovery. The lawyer’s internal
thoughts are still protected.

(1) Basically, if you can get it yourself you should do that

b) Two categories —

(1) Fact Work-Product

(a) This can be required to be discovered if there is a need

(2) Opinion Work-Product

(a) Protected — would be redacted from discoverable facts

35
 c) Elements

(1) Documents and tangible things

(2) Otherwise discoverable

(3) Prepared in anticipation of litigation or for trial

(a) Timing

(b) Purpose

E. Protective Orders, Motions to Compel, Sanctions

1. Protective Order — Rule 26(c)
a) Before moving for a protective order, you have a duty to try to work out
the issue with the other attorneys.

(1) You have to certify that you conferred or attempted to confer.

b) After that is done, the court can, for good cause, issue an order to
protect a party from annoyance, embarrassment, oppression, or undue
burden/expense. Court can take the following steps (c)(1)(b)

(1) Prescribe a discovery method other than requested one

(2) Forbid inquiry into certain matters or limit the scope

(3) Designate the person who can be present for discovery

(4) Require deposition to be sealed and opened under court order

(5) Require trade secret/confidential info to not be revealed or only

revealed in specific way

(6) Require that the parties simultaneously file in sealed envelopes to be

opened when court directs

2. Motion to Compel — Rule 38(a) — creates court order

a) Before moving for motion to compel, you have a duty to try to work out
issue. The party making the motion would then serve notice on all other
parties and affected persons.

(1) You have to certify that you conferred/attempted to confer

(2) Motion needs to be made in the court where action is pending for
party, for a non party it is where the discovery is or will be taken.

36
 (3) EXAM ISSUE: If the discovery days are up, and party hasn’t sent
info, don’t automatically make motion to compel, still need to
confer.
b) Given the party has actually failed to complete needed activity under (a)
(3) (answer, designation, production, inspection), the court will grant
motion to compel

(1) You can also argue that the response was incomplete or evasive and
that it should be treated as a failure — 37(a)(4)

c) If Motion is Granted

(1) Court will also make the non-movant pay the related attorneys fees
for the motion.

(a) If there is a good reason for failure, movant didn’t confer, or there
are other special circumstances fess are not imposed.

(2) If motion fails, non-movant is liable for fees.

(a) If granted in part/denied in part — court can apportion fees

3. Sanctions under Rule 37(b) — failing to comply with court order

a) Directing the matters embraced in the order as established for the
purposes of the litigation

b) Prohibiting the party from supporting/opposing claims or defenses, or

form introducing evidence

c) Striking Pleadings in whole/in part

d) Staying further proceedings

e) Dismissing the action in whole/in part

f) Rendering a default judgement against party

g) Treating as contempt as court (except mental exam order)

h) The court can also require the production of another person or the
payment of expenses in addition to a sanction above.

4. Rule 26(g) — The Rule 11 of Discovery

a) These sanctions cover abuse of the discovery process, as shown in
cases, judges don’t like to use these.

5. Other Sanctions

37
 a) 30(d)(2) — impeding, delaying, frustrating deposition

b) 30(g) — failing to attend depo you arranged

c) 35(b)(5) — failing to deliver report of physical/mental exam

d) 36(a)(3) — failing to repsond to RFA

e) 37(c) — failing to disclose, supplement, admit

f) 37(d) failing to attend depo, answer rogs, respond to RFP (must be total
failure)

g) 37(e) — failure to persevere electronic info

h) 37(f) — failure to participate in framing discovery plan

VI. Judgement with/without trial

A. Settlement
1. Often include confidentiality terms — this is often in conflict of the public’s
interest

a) Despite this, the confidentiality agreement is normally protected by the

courts

2. Parties reach some agreement before or during the trial regarding the
resolution of the claims. This can include monetary agreements or
injunctions.

a) Government entities typically are not allowed to settle confidentially,

freedom of information act typically requires the release. There are some
things that would remain confidential.

B. Omitted Sections
1. These have been covered above. Default judgements are covered above
Rule 12 judgements have to be done on the pleadings alone, unlike sections
below.

C. Summary Judgement — Rule 56

1. Party is entitled to judgement as a matter of law, therefore is given summary
judgement. Unlike Rule 12 judgements, can look at references to the entire
record created by discovery. Test as to whether the case should proceed to
trial.

38
 a) Burden of protection is considered when determining whether the
summary judgement is appropriate — are we using clear and convincing,
preponderance of the evidence, beyond a reasonable doubt, etc.

2. Parties Agree on Facts, Disagree on Law

a) Summary judgement easiest way to resolve, judge is determining how
the law applies.

(1) The party moving for summary judgement has the burden to show the
absence of any genuine dispute of material fact.

3. Party does not meet Burden of Production

a) Plaintiff has so little evidence that he cannot meet the burden of proof,
defendant gets judgement as a matter of law; or Plaintiff has so much
evidence that defendant cannot overcome it.

(1) Party moving still has the burden to show that the summary judgment
is proper.

(a) This is not to say that you need to make your case with your own
evidence, it is enough to say the other party does not have enough
evidence. CELOTEX

(b) You can, however, submit affirmative evidence negating an

essential element of the nonmoving party’s claim (this is harder to
do). ADICKES

i) Defendant would have the burden on affirmative defenses.

(2) Information is viewed in the light most favorable to the person not
requesting summary judgement.

(a) If reasonable minds could disagree — SJ is not appropriate.

(b) The court is not allowed to think a disinterested party is lying

(unless there is impeachment of the witness). If the party has some
incentive to lie (basically, they are an interested party), you are
required to ignore the evidence.

b) Evidence that cannot be used at trial can be used to show that the party
can meet their burden of proof.

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 4. Limits and Other Info on Summary Judgement
a) 56(b) Time Limit — Until 30 days after the close of all discovery

b) 56(d) Judge can opt to grant, deny, or allow additional time after motion
of summary judgement

c) 56(f) Judge can also do judgement sua sponte — judge can enter
judgement on nonmovant, on grounds not entered in the motion, and can
do it if they believe SJ is appropriate on their own.

D. Juries in Civil Trials

1. Federally — Jury is only available in cases at law, not for cases in equity

a) Amount in Controversy (under 7th amendment) has to exceed twenty

dollars

b) If you are looking for damages, it is probably a case at law. If it is looking

for an injunction or declaratory judgement, it is in equity.

(1) You technically have to look as to what was at law or in equity in the
18th century, however, this is typically already done for you. If it isn’t,
you need to find a legal historian.

c) The states do not have to follow this — 7th amendment has not been
incorporated into the 14th amendment. You need to look to what the
states rules are.

2. How Do we choose a Jury?

a) Juries are selected at random from a fair cross section of the community
in the district or division within the court convenes.

(1) This is based on people who are registered to vote

b) All citizens have the opportunity to be considered for service and have an
obligation to serve as jurors when summoned for that purpose.

(1) Explicit policy to not exclude based on race, color, religion, sex,
national origin, or economic status.

(2) Statutory qualifications

(a) Have to been a citizen of the US

(b) Have to be at least 18

(c) Have to have resided for a period of one year within the district

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 (d) Have to be able to speak/read English

(e) Can’t have a mental or physical infirmity that rendered them

unsatisfactory to serve

(f) Cannot have a charge pending against him or be convicted of a

crime punishable by imprisonment for more that 1 year without
restoration of rights.

(3) Excuses
(a) These are on individual request, cover hardships. States outline
what excuses are valid.

(4) Exemptions
(a) Active duty military

(b) Members of (paid) police or fire departments

(c) Public officers in the executive, legislative, or judicial branch who

are actively engaged in the performance of official duties.

(5) Rule 47 — After they’ve met other qualifications

(a) We examine the jurors through questions (by judge or attorneys)

i) If judge asks, attorneys have to be allowed to follow-up (either

by asking themselves or giving the questions to the judge)

(b) Peremptory Challenges — no reason given

i) Under the rule you’re given three, the judge can give you more.

ii) All defendants and plaintiffs may be considered as one for the
purposes of how many challenges they have

iii) Peremptory Challenges on race, gender, age, etc. are not

allowed.

(c) Excuse for cause — court decides

(6) Protection of Employment

(a) Basically, you can’t fire people because they got called for jury
duty.

(7) Rule 48 — Other Juror Things

(a) Minimum of 6, Maximum of 12

i) Most courts will have extra jurors as alternates

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 (b) Verdict must be unanimous

(c) Parties can stipulate to having fewer (or having a non-unanimous

decision)

(8) Procedural Issues

(a) Rule 38(b) must demand a jury trial in writing no later than 14 days
after the last pleading directed to the issue is served

(b) Rule 38(d) a party wavies a jury trial unless its demand is properly
served and filed

(c) Rule 38(d) a proper demand may be withdrawn only if the parties
consent

(d) 39(b) no jury demands, there is a bench trial

i) Judge can order a jury on any issue for which a jury can be
demanded

ii) Judge can also sua sponte order a jury for an issue that
normally wouldn’t qualify for a jury.

E. Judgement as a Matter of Law — Rule 50

1. Standard is the same as used when determining summary judgement except
we considered evidence entered at trial before rule

2. Rule 50 does not apply to a bench trial, Rule 52 allows a judge to do

something similar during a bench trial.

3. When are you allowed to ask for JML?

a) Once one party has been allowed to be heard by the jury fully.

4. How is JML determined?

a) Considering all the evidence, but in the light most favorable to the
nonmovant, and making all inferences in favor of the nonmovant, could
reasonable people disagree about who should win?

(1) You look at pleadings plus the evidence actually produced at trial

(2) Once again, if the witness has not been impeached the judge has to
assume their testimony is truthful.

b) Even if facts are agreed to, the issue may need to go to a jury because
you need to determine reasonableness.

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 (1) You would have a question of fact, not a question of law. Questions of
law do not go to jury.

5. 50(a) Verdict — Directed Verdict

a) The jury is told how to decide

b) Judge can not rule on it, or can decline it even if it is valid because they
may have faith that the jury will get the answer right.

6. 50(b) Verdict — Judgement not withstanding the jury

a) Requires there to have already been a motion for MOL, the motion is then
renewed after the jury has made a decision

(1) The 50(b) motion can only be made on an element that has already
been part of the 50(a) motion.

b) Judge can decide to retain the jury verdict, order a new trial (believing a
new jury would act more reasonably), or direct a new verdict as a MOL.

c) You have 28 days after verdict to enter 50(b) motion.

7. Appellate Review of JML

a) JML review is done de novo, the appeals court is determining whether
the law was properly applied.

(1) If there is already a jury verdict, the higher court will either overrule it
or reinstate it.

b) You have to have done the 50(a) and 50(b) motions for the appellate to
review the evidence.

c) You have 30 days to file for appeal.

F. Motion for a New Trial — Rule 59

1. Judge sits as the 13th Juror and gets to weigh the evidence and determine
whether a new trial is needed.

a) This is not appealable because a verdict has not be entered.

b) If there is still a question as to who wins, the case needs to go back to a

jury.

c) If there is a MOL motion and new trial motion, the judge has to say 1)
whether he’s granting/denying MOL motion and 2) if he is reversed on
MOL motion whether there should be a new trial.

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 2. Reasons for a New Trial
a) Verdict was against the great weight of the evidence

(1) JUDGE CAN THINK SOMEONE IS LYING HERE

(2) Judge has a reason to doubt the jury’s verdict — he believes jury
compromised, disbelieved evidence it should have, verdict was
inconsistent, etc.

b) Damages award is so unjust as to be unconscionable

(1) Federal courts allow for remittitur (lowering of the award), however,
additur (increase) is unconstitutional.

c) Error Infected the Jury

VII. Post-Judgement Issues: Appeal and Preclusion

A. Amending/Setting Aside Judgements
1. 60(a) — Clerical Mistakes; Oversights and Omissions
a) Allows you to correct anything in the judgment, order, or other part of the
record. Court can do so on motion or on its own (with/without notice). If
an appeal is docketed, court needs permission of appellate to correct.

b) Allows for correction of technical and clerical errors.

c) There is no time limit for this.

2. 59(e) — Motion to Alter/Amend a Judgment

a) Motion to alter or amend must be filed within 28 days

b) Allows for substantial changes to the judgment—claims that haven’t been

resolved, etc.

c) Allows the judge to correct errors of law as well

3. 60(b) — Relief from Judgment

a) Allows a relief from final judgement for the following reasons

(1) Mistake, inadvertence, surprise, or excusable neglect

(2) Newly discovered evidence that could not have been discovered in
time to move for a new trial under 59(b)

(3) Fraud

(4) Judgement is Void

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 (a) Lack Of PJ, Lack of SMJ, Lack of Venue, Lack of Notice, Other
due process violation

(5) Judgement has been satisfied

(6) Any other reasons that justifies relief

b) 60(c) — Timing and Effect

(1) Motion under 60(b) must be made within a reasonable time AND if
using reasons 1,2, or 3, no more than a year after the entry of the
judgment

(2) Motion does not affect the judgements finality.

4. 60(d) — Other Powers to Grant Relief

a) Rule 60 does not limit the courts power to:

(1) Entertain an independent action to relieve a party from a judgment,

order, or proceeding;

(2) Grant relief under 28 USC §1655 to a defendant who was not
personally notified of the action; or

(3) Set aside a judgement for fraud on the court

(a) Perjury, etc.

B. Appeal
1. Generally no appeal until final judgement, narrow exception for certain
interlocutory appeals

a) Collateral order doctrine — claims of right separable from, and collateral

to, rights asserted in the action, too important to be denied review and
too undefended of the case itself can be immediately reviewed.

b) Denial of qualified immunity claim can be immediately appealed if there

isn’t a factual dispute

2. Only the loser can initiate an appeal

a) You can appeal the damages award in a bench trial (and likely in a jury
trial — HE will check)

3. Must file notice of appeal with district court within thirty days after
judgement, missing the deadline is fatal is brought to attention of appellate.

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C. Preclusion
1. If there is a final judgement, any future claims coming from the same
transaction or series of connected transactions are precluded. Two effects
arise —

a) Merger
(1) If plaintiff wins, she no longer has the claim she sued on; now she has
a claim to enforce the judgement.

b) Bar
(1) If defendant wins, the judgement is a bar to future lawsuits

2. Determining Transactions
a) Pragmatic

b) Related in time, space, and motivation

c) Is the unit convenient?

(1) Are the witnesses, facts, evidence, similar/the same

3. Splitting Claims
a) Preclusion prevents you form bringing multiple suits n the same claim, so
if you have a contract cause of action and a negligence cause of action
arising from the same event you need to bring them together.

b) HOWEVER, if you have claims that can’t be brought together for some
reason, you can bring them separately.

4. What Judgements Count?

a) All of them!

(1) Jury Verdicts

(2) Default

(3) SJ

(4) Sanctions

b) You can appeal or challenge the judgements under 50(b), 59, or 60,
otherwise, it does not matter if judgement is in error. As long as it is a
final judgement from a court with jurisdiction, it is preclusive.

(1) Judgements are final once entered, even if there is still time for
motions or appeals.

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5. Claim Preclusion — Res Judicata
a) Completely precludes the claim because it has already been adjudicated
between the same parties

6. Issue Preclusion — Collateral Estoppel

a) Does not preclude claim but finds issue within claim precluded by
previous adjudication

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