CHAPTER SIX: PLEADING

o A civil action is commenced in the federal system by the filing of a complaint by

the plaintiff. FED. R. CIV. P.3.

The Advent of the Federal Rules of Civil Procedure

o Pleading is solely concerned with providing notice to the parties of the claims and
defenses in the case.
o Rule 11- created to impose a certification requirement intended to deter and
punish the raising of frivolous claims or defenses.
o Rule 15- the rule that permits parties to change their pleadings if necessary
o Rule 56- provides for summary judgment; allows courts preliminary power to
dispose of cases not worthy of consideration at trial by a jury due to the absence
of any genuine, material factual dispute.
o Rule 26 through 37- provides for extensive pre-trial discovery between the
parties, eliminating the need for the pleadings to communicate the facts upon
which each side relied for its position.

A. THE COMPLAINT

A civil action is initiated in the federal system by the filing of a complaint. Rule 8(a)
provides the basic instruction regarding what information must be included in this
document:

FRCP 8(a). General Rules of Pleadings: Claim for Relief.

(a) Claim for Relief. A pleading that states a claim for relief must contain:

(1) A short and plain statement of the grounds for the court’s jurisdiction, unless
the court already has jurisdiction and the claim needs no new jurisdictional
support;

(2) A short and plain statement of the claim showing that the pleader is entitled to
relief; and

(3) A demand for the relief sought, which may include relief in the alternative or
different types of relief.

The elements that a complaint should include are thus threefold: There must be a
statement of the basis for the court’s subject matter jurisdiction, the plaintiff’s claim
must be set forth, and the relief that the plaintiff seeks must be demanded.

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1. Sufficiency of the Complaint under the Federal Rules

What does it mean to set forth a “short and plain statement of the claim showing
that the pleader is entitled to relief”?

All the Rules require is ‘ a short and plain statement of the claim’ that will give the
defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests.
Conley v. Gibson, 355 U.S. 41, 47 (1957).

o The simplified ‘notice pleading’ is made possible by the liberal opportunity

for discovery and the other pretrial procedures established by the Rules to
disclose more precisely the basis of both claim and defense and to define
more narrowly the disputed facts and issues.

Bell Atlantic Corp. et al. v. Twombly

“While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed
factual allegations, a plaintiff’s obligation to provide the “grounds” of his “entitlement to
relief” requires more than labels and conclusions and a formulaic recitation of the
elements of a cause of action will not do. Factual allegations must be enough to raise a
right to relief above the speculative level on the assumption that all the allegations in the
complaint are true (even if doubtful in fact)”.

Points for Discussion

e. Plaintiff’s Pleading Obligations

o The plaintiff’s pleading burden is limited to those matters for which the plaintiff
will bear the burden of introducing evidence at trial.
o Assume everything in the complaint is true, in a light most favorably to the
plaintiff
o The plaintiff must plead enough facts to show that discovery will provide
evidence of illegal agreement
o Complaint must plead enough facts to state a claim to relief that is plausible on
its face. After Twombly there was a fact finding element in the pleading that was
not present before (“plausibility”)
 From speculative to the plausible
 Disrupting the system—should not be done by judicial
interpretation
o Cases that have no entitlement to relief should be weeded out before the discovery
process
o This means that plaintiffs must plead their basic claims but ordinarily need not
plead the nonexistence of various defenses

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 o Rule 8(a)(2)’s requirement of a “short and plain statement of the claim” not only
permits a simple statement of the legal claim and its grounds, but it also prohibits
overly lengthy hyper-pleading. Where the complaint strays too far from being
“short and plain”, it may be subject to dismissal (although probably with the right
to submit an amended complaint).

o The Supreme Court appeared to have backtracked on its adherence to the notice
pleading foundations of Rule 8 when it held that to defeat a motion to dismiss for
failure to state a claim, the complaint in an antitrust conspiracy case must contain
more than a mere allegation of parallel business conduct and a conspiracy. The
allegation should “plausibly suggest” that the pleader is entitled to relief; i.e., the
pleader must allege facts that would “raise a reasonable expectation that discovery
will reveal evidence” of a conspiracy. Thus, in this case, patterned after Bell
Atlantic, the court will grant the motion. But it is unclear whether this decision is
limited to antitrust cases.

f. Pleading Special Matters under Rule 9(b)

Although notice pleading describes the general pleading system imposed by Rule 8(a)(2),
the Federal Rules do provide for heightened pleading in two specific contexts.

FRCP 9(b). Pleading Special Matters.

(b) Fraud or Mistake; Conditions of Mind. In alleging fraud or mistake, a party must
state with particularity the circumstances constituting fraud or mistake. Malice, intent,
knowledge, and other conditions of a person’s mind may be alleged generally.

What additional information must claims of fraud—which are covered by Rule

9(b)’s particularity requirement—include to be sufficient under 9(b)?

The requirement of Rule 9(b) is met when there is sufficient identification of the
circumstances constituting fraud so that the defendant can prepare an adequate answer to
the allegations.

o Allegations of fraud and mistake were singled out for special heightened pleading
requirements in the Federal Rule based on the idea that these allegations were too
easily fabricated and in the case of fraud, too potentially detrimental to the
defendant’s reputation.
o Although the Federal Rules only impose heightened pleading for allegations of
fraud or mistake, Congress has the authority to impose heightened pleading
requirements for claims as it sees fit.
 Congress exercised this authority when it enacted the Private
Securities Litigation Reform Act of 1995 (PSLRA).

h. Pleading Alternate & Inconsistent Allegations

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 o The Federal Rules permit plaintiffs to include multiple allegations that assert
alternate grounds for relief based on a single set of facts and also allow plaintiffs
to plead inconsistent allegations.
 Illustration. A plaintiff who has been hit by a car can assert both
that the driver intentionally hit the plaintiff with the vehicle and
that the driver negligently hit the plaintiff.
The ability to plead in this fashion derives from Rule 8(e)(2):

FRCP 8(d)(2). Pleading To Be Concise And Directly Consistency.

(2) A party may set forth two or more statements of a claim or defense
alternatively or hypothetically, either in one count or defense or in separate counts
or defenses. A party may also state as many separate claims or defenses as the
party has regardless of consistency.

o A plaintiff cannot allege inconsistent versions of the facts supporting his claim,
unless he includes in his allegations a reason why he doesn’t know which version
is true (i.e. a plaintiff alleges in one count that the defendant stabbed him, or, in
the alternative, that the defendant ran him over with a car. In this case the plaintiff
may claim that he was ran over by the defendant while he was unconscious from
the defendant’s stab wound). FRCP 8(e) and 11. Rule 11(b)(3) requires that the
attorney certify that the “allegations and other factual contentions have
evidentiary support.”
o However, the plaintiff can plead inconsistent legal theories (e.g. battery or
negligence). FRCP 8(d)(3).

o The inconsistent pleading cannot go too far; the rule makes clear that the ability to
plead inconsistent allegations is subject to the obligations of Rule 11, which
prohibits untruthful or baseless statements.

i. The Prayer for Relief

o Rule 8(a) includes a requirement to contain “a demand for judgment for the relief
the pleader seeks.” FED. R. CIV. P. 8(a)(3). Such a demand is referred to as a
prayer for relief.
o Rule 54(c)- states that “A default judgment must not differ in kind from, or
exceed in amount, what is demanded in the pleadings. Every other final judgment
should grant the relief to which each party is entitled, even if the party has not
demanded that relief in its pleadings.”
 Under this rule, then, a plaintiff may collect more than they
seek in the prayer, so long as the evidence supports the
increased amount.
If a plaintiff seeks so-called special damages, the Federal Rules provide that they
must be “specifically stated.” FED. R. CIV. P. 9(g).
 Special damages are damages that are unusual for the type of claim
in question and are not the natural damages associated with such a

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 claim.
 Ordinarily, failing to plead special damages as
required by Rule 9(g) results in the plaintiff being unable to
present evidence on those damages at trial and ultimately precludes
recovery of the damages on the verdict.
 Should plaintiffs be permitted to amend their
complaints to plead special damages during trial to comply
with Rule 9(g)
and to enable the presentation of evidence in support of those
damages?
o Plaintiffs are granted leave to amend the complaint
in order to plead special damages specifically.

2. Serving the Complaint

Once a plaintiff has drafted a complaint, not only must it be filed with the court to
commence the action, it must also be served—in conjunction with a summons—on the
defendants in the case. The summons and the complaint together are referred to as
the process. The Federal Rules establish very specific guidelines governing how service
of this process is to be accomplished. These requirements are set forth in Rule 4(e):

FRCP 4(e): Serving an Individual Within a Judicial District of the United States.

(e) Serving an Individual Within a Judicial District of the United States. Unless
federal law provides otherwise, an individual—other than a minor, an incompetent
person, or a person whose waiver has been filed—may be served in a judicial district of
the United States by:
(1) following state law for serving a summons in an action brought in courts of
general jurisdiction in the state where the district court is located or where service
is made; or
(2) doing any of the following:

(A) delivering a copy of the summons and of the complaint to the

individual personally;

(B) leaving a copy of each at the individual’s dwelling or usual place of

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

(C) delivering a copy of each to an agent authorized by appointment or by

law to receive service of process.

• Rule 4(e) only governs service on individuals who can be located within the
United States. Note also that the defendant’s agent for service of process may be
one that she has personally appointed or one that is authorized to be such an agent
by law.

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 • Service on corporations or other collective entities within the United States is
governed by Rule 4(h)(1), which in turn refers the reader back to Rule 4(e)(1) but
also provides an additional means of service “by delivering a copy of the
summons and of the complaint to an officer, a managing or general agent, or any
other agent authorized by appointment or by law to receive service of process and
—if the agent is authorized by statute and the statute so requires—by also mailing
a copy of each to the defendant.”
• Service upon individuals and corporations located outside of the United States is
more complicated. Rule 4(f) states:
 First, service can be made pursuant to the terms of an international
treaty such as the Hague Convention on the Service Abroad of
Judicial and Extrajudicial Documents which establishes a detailed
regime for transmitting such documents to persons found within
foreign countries. FED. R. CIV. P. 4(f)(1).
 Second, in the absence of an international agreement, service can
be made within the foreign country in one of three ways:
o (1) in the manner defendants are ordinarily served
within those countries for suits in their regular
courts;
o (2) as directed by that country in response to a letter
rogatory from the U.S. court requesting instruction
on service; or for individual defendants,
o (3) through personal service or by “any form of
mail that the clerk addresses and sends to the
individual that requires a signed receipt,” provided
the foreign country does not prohibit such service.
FED. R. CIV. P. 4(f)(2).
Third, Rule 4(f) includes a provision that permits service “by
other means not prohibited by international agreement, as the court
orders.” FED. R. CIV. P. 4(f)(3).

Rio Properties, Inc. v. Rio International Interlink

 4(h)(2) authorizes service of process on a foreign business entity in the manner

prescribed by Rule 4(f)(3), permits service in a place not within any judicial
district of the United States “by…means not prohibited by international
agreement as may be directed by the court.”
 “Service under Rule 4(f)(3) must be (1) directed by the court; and (2) not
prohibited by international agreement. No other limitations are evident from the
text. In fact, as long as court-directed and not prohibited by an international
agreement, service of process ordered under Rule 4(f)(3) may be accomplished in
contravention of the law of the foreign country.”
 Rule 4(f)(3) is not subsumed within or in any way dominated by Rule 4(f)’s other
subsections; it stands independently, on equal footing. Moreover, no language in
Rules 4(f)(1) or 4(f)(2) indicates their primacy.

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  Rule 4(f)(3) may allow the district court to order a “special method of service,”
even if other methods of service remain incomplete or unattempted.
 Service of process under Rule 4(f)(3) is neither a “last resort” nor “extraordinary
relief.” It is merely one means among several which enables service of process on
an international defendant.
 Email service is not available absent a Rule 4(f)(3) court decree
 5(b)(2)(e) doesn’t cover standard of process

Points for Discussion

a. The Notice Standard

The Mullane Standard

Due process requires that notice be “reasonably calculated, under all the circumstances,
to apprise interested parties of the pendency of the action and afford them an opportunity
to present their objections”… “[t]he means employed must be such as one desirous of
actually informing the absentee might reasonably adopt to accomplish it”… “within the
limits of practicability, notice must be such as is reasonably calculated to reach interested
parties”

b. Waiver of Service

o In an effort to address the issue of defendants ceaselessly attempting to dodge

service of process, and the associated delay and high costs resulting from such
evasion, the Federal Rules were amended in 1993 to encourage defendants to
waive formal service of process and accept service by mail. This is done in two
ways:
 Offering defendants who waive formal service additional time to
respond to the complaint—60 days (90 days for defendants outside
the U.S.) instead of the ordinary 20 days. FED. R. CIV. P. 4(d)(3).
 Defendants located in the U.S. are threatened with having to cover
the costs incurred in effecting formal service unless the defendant
can convince the court that it had a good reason for not agreeing to
waive formal service.
 If the defendant does agree to waive formal service, Rule 4(d)(1)
makes it clear that such a waiver does not also amount to a waiver
of any objection to personal jurisdiction or venue.
o Rule 4(d) set forth a number of detailed requirements that plaintiffs must satisfy
to provide a defendant with proper notice of the action and a request that the
defendant waive formal service of the summons and complaint.
o The defendant has no obligation to respond to a request for waiver, in which case
the plaintiff should proceed to achieve service through whatever means is
authorized under remaining parts of Rule 4
o However, non-waiving defendants found within the U.S. then become subject to
the obligation to cover the plaintiff’s cost of service as noted above. If the

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 defendant does agree to waive formal service, Rule 4(d)(1) makes it clear that
such a waiver does not also amount to a waiver of any objection to personal
jurisdiction or venue

d. Service via Modern Methods of Communication

Although the Federal Rules were recently amended to permit (with consent) the use of
email for the service of various pleadings and papers, that rule does not cover service of
the summons and complaint.

B. Responding to the Complaint

o Once served with the summons and the complaint, the defendant must respond in
some way. The defendant’s two main options are to file an answer—in which the
defendant responds to the specific allegations contained in the complaint—or to
file one or several motions raising various legal defenses that highlight legal
defects in the plaintiff’s action rather than addressing the merits of the plaintiff’s
allegations.

1. Defenses and Objections under Rule 12

Rule 12(b) sets forth seven basic defects that serve as grounds for dismissing a complaint:

FRCP 12(b). Defenses and Objections—How Presented.

(b) How to Present Defenses. Every defense to a claim for relief in any pleading must be
asserted in the responsive pleading if one is required. But a party may assert the
following defenses by motion:
(1) lack of subject-matter jurisdiction
(2) lack of personal jurisdiction
(3) improper venue
(4) insufficient process
(5) insufficient service of process
(6) failure to state a claim upon which relief can be granted (even if everything
the plaintiff claims in the complaint is true, the plaintiff is not entitled to
relief); and
(7) failure to join a party under Rule 19

A motion asserting any of these defenses must be made before pleading if a responsive
pleading is allowed. If a pleading sets out a claim for relief that does not require a
responsive pleading, an opposing party may assert at trial any defense to that claim. No
defense or objection is waived by joining it with one or more other defenses or objections
in a responsive pleading or in a motion.

o Complaints are construed in the light most favorable to the plaintiff. The only
time a complaint will be dismissed for failure to state a claim is where the

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 plaintiff has stated facts indicating the defendant cannot be liable as a matter of
law. FRCP 12(b)(6).

o The defect listed under 12(b)(4)—insufficiency of process—is different from

the defect in 12(b)(5)—insufficiency of service of process. The former
challenge asserts that there is some technical defect in the content of the
summons, while the latter asserts that process was not served in compliance
with the requirements of Rule 4.

o When a defendant files a FRCP 12 motion, he must include in it all the defenses
and objections available at that time (in order to avoid wasting the court’s time).
Objections to the complaint’s form or to venue, process, or personal jurisdiction
are waived if not filed with the FRCP 12 motion.

o However, the following FRCP 12 motions are never waived until judgment is
rendered—lack of subject matter jurisdiction (this objection can even be raised on
appeal), failure to join a necessary party (Rule 19), or failure to state a claim upon
which relief can be granted (Rule 12(b)(6)).

American Nurses’ Association v. Illinois

o A complaint cannot be dismissed merely because it includes invalid claims along

with a valid one
o When a defendant is unclear about the meaning of a particular allegation in the
complaint the proper course is not to move to dismiss but to move for a more
definite statement.
o A complaint does not fail to state a claim merely because it does not set forth a
complete and convincing a picture of the alleged wrongdoing.

Points for Discussion

a. The Motion to Dismiss for Failure to State a Claim under Rule 12(b)(6)
o A motion to dismiss for failure to state a claim is a motion that states either,
“You’ve failed to plead enough detail to satisfy your pleading burden” or
“Even if everything you allege in your complaint is true, no legal liability
attaches to the defendant.”
o When a judge is reviewing a 12(b)(6) motion to dismiss he is considering whether
claiming party should be entitled to moving to the discovery standard.
o The motion can allege that the complaint is formally inadequate, meaning that it
fails to give the minimum level of detail required under Rule 8(a)(2) such that the
defendant is not put on notice of the claim being alleged against it.
o When reviewing the complaint the test is not whether the plaintiff will prevail, the
test is whether the plaintiff can present evidence to support claim.

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 o The other type of insufficiency that a 12(b)(6) motion can allege is substantive or
legal inadequacy, which means that the allegations in the complaint fail to say
anything that would render the defendant liable for a violation of the law.
 Illustration. Consider a complaint in which P alleged, “Last
Saturday, D came up to me and gave me a handshake.” Even if this
is true, so what? P has no legal claim against D just because D
gave P a handshake. So based on this complaint, taking all of the
plaintiff’s allegations as true, P’s complaint fails to state a claim
upon which relief can be granted. D should thus file a motion to
dismiss under Rule 12(b)(6) and that motion should be granted.
When evaluating a 12(b)(6), motion, a court must accept as true everything that
that the plaintiff has alleged in its complaint. A 12(b)(6) motion is not the place
for challenging the factual allegations of the plaintiff or to offer some sort of
explanation or defense that justifies the defendant’s actions.
 Illustration. A defendant who moves to dismiss
under Rule 12(b)(6) cannot say, “No, that is not true; I did not
shake P’s hand last Saturday and I never have.” That would be a
denial, a response appropriate as part of the defendant’s answer.
If either of the parties offers anything beyond what is in the pleadings in support
of their position on the 12(b)(6) motion, such as an affidavit or some other
evidence, the 12(b)(6) motion is to be treated as a motion for summary judgment
and resolved according to the terms of Rule 56.

b. Bell Atlantic v. Twombly and the Motion to Dismiss under Rule 12(b)(6)

o Plaintiffs are given the benefit of the doubt in the face of a motion, with not only
the plaintiff’s factual allegations being accepted as true but with all reasonable
factual inferences being made in the plaintiff’s favor.
o A motion to dismiss under Rule 12(b)(6) would now be appropriate if the plaintiff
failed to plead facts showing “plausible entitlement to relief.” Twombly, 127 S.
Ct. at 1967.
 Illustration. In Twombly, this standard meant that the complaint—
which alleged an antitrust conspiracy based largely on the
conscious parallelism of the defendants—was insufficient because
it alleged facts that were merely consistent with rather than
suggestive of liability. According to the Court, there were more
plausible innocent explanations for the observed conduct of the
defendants and thus the complaint could be dismissed.

c. Repleading After a Motion to Dismiss

o Permission to amend in such circumstances is typically granted

o Although repeated failures to state a claim could be met with a dismissal with
prejudice, meaning the plaintiff will be unable to submit an amended complaint.

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d. Other Defenses and Objections under Rule 12

Rule 12(c)—Motions for Judgment on the Pleadings. Once all of the pleadings have
been submitted—usually meaning after the plaintiff has filed a complaint and the
defendant has filed an answer—either party may move for a judgment on the pleadings,
meaning that in the movant’s view, the information contained on the face of the pleadings
alone reveals that the movant is entitled to a judgment as a matter of law.

Rule 12(e)—Motion for More Definite Statement. If a defendant believes that the
complaint is “so vague and ambiguous” that is “cannot reasonably be required to frame a
responsive pleading,” the defendant may move for a more definite statement under Rule
12(e)

Rule 12(f)—Motion to Strike. The final responsive motion included within Rule 12 is
the motion to strike. Such a motion is appropriate when a party believes that a pleading
contains an “insufficient defense or any redundant, immaterial, impertinent, or
scandalous matter.”
o The motion is also handy for plaintiffs who want to challenge the legal
sufficiency of a defense raised by the defendant in its answer. This type of use
mirrors the 12(b)(6) motion to dismiss for failure to state a claim except it is used
to attack defenses rather then claims.

e. Procedural Aspects of Filing Motions under Rule 12

o Rule 12 also sets forth the procedures for raising the defenses included in the rule.
Regarding the defenses provided for in Rule 12(b), each of these may be made
either through a motion or within the answer—they are waived and may not be
raised subsequently. FED. R. CIV. P. 12 (h)(1).
o These waivable defenses must be raised in a consolidated fashion; thus, if a party
raises one of these waivable defenses in a pre-answer motion but neglects to
assert one of the others, the party has waived those defenses and is barred from
raising them at a later time. See FED. R. CIV. P. 12(g) & (h)(1).
o The motion for a more definite statement under Rule 12(e) and the motion to
strike under Rule 12(f) must be made before the movant’s responsive pleading is
filed.
 Illustrations. If a defendant believes that the complaint is too
vague, she must submit a motion for a more definite statement
before filing her answer.
o A motion for judgment on the pleadings under Rule 12(c), on the other hand, may
be made only after the pleadings are closed, which means that each party has
submitted its pleadings and no more responsive pleadings are due or permitted.

2. The Answer

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 o If the case is not dismissed in response to a pre-answer motion the defendant will
have to submit its pleading in response to the complaint, which is the answer.
FED. R. CIV. P. 7(a).

Components of an Answer under the Federal Rules

o Denials and Admissions. Under Rule 8(b) a defendant must admit or deny all
factual allegations of the complaint.
o Defenses. A defendant may also include any defenses it intends to raise, including
the defenses found in Rule 12(b) that have not been waived and any affirmative
defenses such as those listed in Rule 8(c)
o Claims. Finally, if the defendant has claims against the plaintiff or other parties
that she wishes to assert she may do so in the answer.

The heart of a defendant’s answer is the series of responses to the factual allegations
contained in the complaint, of which there are three types under the Federal Rules. A
defendant may:
o Admit: simply means that the defendant admits the truth of the
plaintiff’s allegation.
o Deny: There are specific rules governing how denials must be made in
order to be effective (see below).
o Or assert they “lack knowledge or information sufficient to form a
belief as to the truth of an allegation” FED. R. CIV. P. 8(b)(5).

Rule 8(b) sets forth these requirements:

FRCP 8(b). Defenses; Admissions and Denials.

(b) Defenses; Admissions and Denials.

(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 the 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.

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 (4) Denying Part of an Allegation. A party that intends in good faith to deny only
part of an allegation must admit the part that is true and deny the rest.

(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 denial. (must be a good faith response)

(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.

Denials may be general in the sense that they deny everything in a particular of a
complaint but only if such a complete, general denial is intended. However, if any part of
a sentence or paragraph is true and worthy of admission, the defendant must specifically
deny that portion of the allegation and then may generally deny the rest. Otherwise, the
court may find that the defendant’s general denial is ineffective because it failed to “fairly
respond to the substance of the allegation.” FED. R. CIV. P. 8(b)(2).

Points for Discussion

a. Lessons from Zielinski

o One thing that should be clear from Zielinkski is that general denials should only
be used when every single aspect of an allegation is intended to be denied.
o If any component turns out to be something that the defendants had no intention
of denying the court will be in a position to declare the entire denial ineffective
o The consequences of an ineffective denial are severe; Rule 8(b)(6) provides that
all allegations not properly denied are deemed to be admitted.

b. Denials for Lack of Information

o Rule 8(b) permits a third type of response other than an admissions or denial; a
party may deny an allegation because it “is without knowledge and information
sufficient to form a belief as to the truth of an averment.” FED. R. CIV. P. 8 (b)
(5). The effect of such a response is the same as a denial.

c. Improper forms of Denial

o Note that the response of being without knowledge or information sufficient to

form a belief is treated as a non-response, and will thus be treated as an
admission under Rule 8(b)(6).

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 o Negative pregnant denial- involves an overly specific denial that repeats every
detail of the assertion, leaving the possible impression that some other form of the
allegation could be true.
 Illustration. If the allegation states, “Last Saturday, D hit my
vehicle with his vehicle,” and D’s response was, “I deny that last
Saturday I hit P’s vehicle with my vehicle,” the denial is
“pregnant” with the suggestion that D may have hit P on another
day, or that he hit P’s vehicle with someone else’s vehicle rather
than his own.
Conjunctive denial- this type of denial comes in response
to an allegation that
asserts, “The defendant did A, B, and C.” If the defendant responds by saying, “ I
deny that I did A, B, C,” that is a conjunctive denial because it leaves open the
possibility that the defendant did one or two of the three but not all three of the
things alleged. These types of denials are seen as evasive and should be avoided.

d. Affirmative Defenses

o In addition to admitting or denying the allegations of a complaint, the defendant

must include any affirmative defenses it has in the answer. FED. R. CIV. P. 8 (c).
o ‘An avoidance or affirmative defense’ encompasses two types of defensive
allegations: those that admit the allegations of the complaint but suggest some
other reason why there is no right of recovery, and those that concern allegations
outside of the plaintiff’s prima facie case that the defendant therefore cannot raise
by a simple denial in the answer.
 For example, in some states, if the plaintiff’s own negligence in
any way contributed to her injuries, the plaintiff is barred from
recovery in a negligence action based on that incident. The
plaintiff’s negligence in such an instance is referred to as
contributory negligence and constitutes an affirmative defense
that the defendant must specifically assert in its answer.
The failure to plead an affirmative defense ordinarily results in the defense being
waived. In the event that a party mistakenly omits an affirmative defense or any
other matter it should have included or meant to include in its pleadings, the rules
do permit the pleadings to be amended.

e. The Answer to a Counterclaim and the Reply

o What is the function of the defendant’s answer?

 To put at issue the allegations in the plaintiff’s complaint. This is
done by either denying some or all of the plaintiff’s allegations or
raising affirmative defenses that are legally sufficient to avoid the
effect of the allegations in the complaint.
 The answer, in addition to admitting, denying, or pleading lack of
knowledge as to every allegation, must include any affirmative
defenses available to the defendant. FRCP 8(b) and (c).

14
 o A defendant may include affirmative claims for relief that it wishes to assert in its
answer.
o After being served with process, how many days does a defendant have to file
an answer in federal court?
 20—unless a different time is prescribed by statute. FRCP 12(a)(1)
(A).
 EXCEPTIONS: If the defendant files a 12(b) motion in the time
provided for answer, she’ll have ten days after the motion is denied
in which to file her answer. If the defendant agrees to the
plaintiff’s request for waiver of service of the summons, she will
have 60 days from the date the request for waiver was sent by the
plaintiff to file her answer
 If the defendant’s answer includes a counterclaim, the plaintiff
must similarly file his “answer” (called a “reply”) in 20 days.
FRCP 12(a)(1)(B).
o If the defendant’s answer includes a counterclaim, the plaintiff must similarly file
his answer (called a “reply”) within 20 days after service of the counterclaim.
FRCP 12(a)
o If the defendant doesn’t file in time, the failure to answer will be considered a
“default” and, as such, an admission of the claim against him. The defendant can
attempt to set aside the default—in federal court, the defendant has one year after
the default judgment is entered in which to do so under FRCP 60(b). The default
typically will be set aside only if the defendant shows a valid excuse (e.g. fraud or
excusable neglect) and a meritorious defense to the action.
o In the event that the defendant asserts such a claim against the plaintiff, this will
be considered a counterclaim and will entitle the plaintiff to submit a further
pleading referred to as “an answer to a counterclaim.” FED. R. CIV. P. 7(a)(3). In
the answer to the counterclaim, the plaintiff, who is now a defendant to the
counterclaim, will have the same opportunity to answer the allegations lodged
against it, with the obligation to admit or deny the allegations and submit any
defenses or objections it may have. Failure to submit an answer to a counterclaim
in response to a counterclaim will result in those allegations being confessed.
o Plaintiffs may file a pleading called a reply with the permission of the court if
they wish to respond to the defendant’s affirmative defenses. FED. R. CIV. P.
7(a)(7) (permitting, “if the court orders one, a reply to an answer”). However,
plaintiffs are under no obligation to file a reply in response to affirmative defenses
and if the court does not order such a reply, all affirmative defenses are simply
deemed denied.

o Because there is no further opportunity to respond, any allegations or affirmative

defenses raised in the reply are automatically deemed to be denied. FED. R. CIV.
P. 8(b)(6).

C. Amending the Pleadings

15
As the action goes forward from the initial pleadings, there are two main circumstances
that would lead parties to be interested in somehow altering or amending their pleadings
(complaint and answer): the need to remedy an inadvertent omission or mistake, or the
desire to add, alter, or remove claims or defenses in light of new information.

1. The Basic Rules Governing Amendments

Rule 15(a) sets forth the conditions under which a party’s pleading may be amended
before trial. After the rule, the case that follows demonstrates its application.

FRCP 15(a). Amendments Before Trial.

(a) Amendments Before Trial

(1) Amending as a Matter of Course. A party may amend its pleading once as a matter of
course:
(A) before being served with a responsive pleading: or

(B) within 20 days after serving the pleading if a responsive pleading is not
allowed and the action is not yet on the trial calendar.

(2) Other Admendments. In all other cases, 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.

(3) Time to Respond. Unless the court orders otherwise any required response to an
amended pleading must be made within the time remaining to respond to the original
pleading or within 10 days after service of the amended pleading, whichever is later.

Beeck v. Aquaslide ‘N’ Dive Corp.

o In Foman v. Davis, 371 U.S. 178 (1962), the Supreme Court declared this about
Rule 15(a):
 Rule 15(a) declares that leave to amend “shall be freely given
when justice so requires,” this mandate is to be heeded… If the
underlying facts or circumstances relied upon by a plaintiff may be
a proper subject of relief, he ought to be afforded an opportunity to
test his claim on the merits. In absence of any apparent or declared
reason such as undue delay, bad faith or dilatory motive on the part
of the movant, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party by
virtue of allowance of the amendment, futility of amendment, etc.
the leave sought should, as the rules require, be “freely given.” Of
course the grant or denial of an opportunity to amend is within the
discretion of the District Court…
This Court in Hanson v. Hunt Oil Co. held that “prejudice must be shown”.

16
 The burden is on the party opposing the amendment to show such prejudice.
In ruling on a motion for leave to amend, the trial court must inquire into the
issue of prejudice to the opposing party, in light of the particular facts of the
case.

Points for Discussion

b. The Standard for Granting Amendments under Rule 15(a)

o Although Beeck involved an amendment to change a response (answer) from an

admission to denial, Rule 15(a) also encompasses amendments to change parties
named in a pleading.

c. Amendments as a Matter of Course

o Rule 15(a) gives parties an absolute right to amend their pleadings without the
court’s permission if they do so within particular timeframes. If a responsive
pleading is due or has been permitted, the pleading party may amend at any time
before that responsive pleading is filed. If no responsive pleading is due, the
pleading party has twenty days to amend.

d. Amendments During and After Trial

o If a party presents evidence at trial that goes to an issue not raised in the
pleadings, the opposing party may object to the presentation of such evidence. At
that point, the party seeking to present the evidence can seek the court’s
permission to amend the pleadings under Rule 15(b); such amendments are to be
“freely” allowed unless the opposing party can show unfair prejudice to its case.
o However, if the opposing party fails to object, and the issue is tried, under Rule
15(b) the issue will be treated as if it were raised in the pleadings. FED. R.
CIV. P. 15(b).

2. Relation Back of Amendments

Sometimes parties need to amend their pleadings after the applicable statute of
limitations period has expired. When this is the case, amendments that raise new
claims or defenses or introduce new parties into the action will have to relate back to the
time the initial action commenced to not be barred by the statute of limitations. Rule
15(c) provides for the relation back of amendments, but under tightly controlled
circumstances:

FRCP 15(c): Amended and Supplemental Pleadings: Relation Back of Amendments

(c) Relation Back of Amendments.

17
(1) When an Amendment Relates Back. An amendment to a pleading relates back to the
date of the original pleading when:

(A) the law that provides the applicable statute of limitations allows relation back;

(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 or

(C) the amendment changes the party or the naming of the party against whom a
claim is asserted, if Rule 15(c)(1)(B) is satisfied and if, within the period provided
by Rule 4(m) 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.

Worthington v. Wilson

o Rule 15(c) states that an amendment changing the naming of a party will relate
back if among other things, the party brought in by the amendment “knew or
should have known that, but for a mistake concerning the identity of the proper
party, the action would have been brought against the party.

o An amended complaint which replaces fictitious names with actual names

due to an initial lack of knowledge concerning the proper defendant does not
involve a “mistake” and is therefore not entitled to relation back under Rule
15(c).

o The court found that Worthington’s amended complaint did not relate back under
Rule 15(c) because the amendment did not correct a “mistake,” but rather
corrected a lack of knowledge at the time of the original complaint.

Points for Discussion

b. The Proper Interpretation of Rule 15(c)

The court in Worthington also felt obliged to follow Seventh Circuit precedent holding
that a prior naming of unknown defendants does not constitute a “mistake” under Rule

18
15(c); rather, the plaintiff must name particular individuals but later find that they were
mistaken in thinking that those individuals were the proper defendants.

c. Rule 15(c)’s “Conduct, Transaction, or Occurrence” Requirement

o In order to relate back, the change being made to the pleadings must be part of the
same “conduct, transaction, or occurrence” set forth in the original pleading.
 “Relation back depends on the existence of a common core of
operative facts uniting the original and newly asserted claims”
(Mayle v. Felix, 545 U.S. 644 (2005)
 “An amended complaint that ‘attempts to introduce a new legal
theory based on facts different from those underlying the timely
claims’ will not relate back” (La Wholesale Drug Co. v. Biovail
Corp.)

d. Supplemental Pleadings under Rule 15(d)

o Why might a party need to supplement its pleadings with information

pertaining to events that transpired after the pleadings were filed?
 Diaz v. City of Inkster, “Permitting a plaintiff to add two newly
arising retaliation claims to his existing discrimination claims
based on the employer’s failure to promote the plaintiff after the
filing of his lawsuit”
Should supplemental pleadings be permitted to relate back under the same
standards set forth in Rule 15(c)?
 Kemper Ins. Co., “In deciding whether to grant a
motion to supplement pursuant to Rule 15(d), the Court may rely
on the doctrine of relation back. If the supplemental claim is
sufficiently related to the prior claims, but based on transactions
that occurred subsequent to the commencement of the action, then
the supplemental pleadings relate back to the date the pleadings
were filed.”

D. Ensuring Truthful Allegations

o The requirement to certify or verify the truthfulness of the pleadings has always
been found within Rule 11.
o The current version of the rule consists of two main parts: provisions outlining
the representations that counsel makes when submitting a filing to the court
and rules governing the imposition of sanctions (punishment) when Rule 11 is
violated.

1. Representations to Court

See Rule 11 on page 485

19
 Points for Discussion

b. Representations Made under Rule 11

Take note of the different representations that an attorney (or unrepresented party) makes
when submitting a filing to the court. They fall into five general categories, as illustrated
in Table 6.1:

Table 6.1

Representations Rule

Reasonable inquiry undertaken Rule 11(b)

Proper motivation for filing Rule 11(b)(1)

Soundness of legal arguments Rule 11(b)(2)

Basis for factual allegations Rule 11(b)(3)

Basis for denials Rule 11(b)(4)

o The rule first imposes a general requirement that counsel has conducted a pre-
filing inquiry that is “reasonable under the circumstances.”
o After requiring a reasonable pre-filing inquiry, there are four categories of
representations laid out in the rule.
 Motivation- Under the rule, the motivation behind the filing may
not be sinister in that it is meant to drive up litigation costs or
needlessly delay the litigation.
 Soundness of legal arguments- Note that the rule does not simply
permit arguments soundly based on existing law, but also permits
arguments that argue for a change in the law if those arguments are
“nonfrivolous”. How is the court to determine if the argument
for legal change is “nonfrivolous”?:
o “A ‘frivolous’ filing is both baseless and made
without reasonable and competent inquiry. But Rule
11 must be read in light of concerns that it will chill
vigorous advocacy. If, judged by an objective
standard, a reasonable basis for the position exists
in both law and in fact at the time the position is
adopted, then sanction should not be imposed.”
(Larez v. Holcomb, 16 F.3d 1513)
 The rule requires that there be some basis for factual
allegations made in the pleadings, either in evidence known to
counsel or in evidence expected to be discovered by counsel.

20
  Finally, the rule requires that there be an evidentiary basis for
denials of factual allegations.

2. Sanctions under Rule 11

The consequences associated with the failure to comply with the strictures of Rule 11

FRCP 11(c). Sanctions

See pg. 488

o What’s the purpose of the signature requirement of FRCP 11 (requiring that

pleadings be signed by the party’s attorney, or, of the party doesn’t have an
attorney, by the party himself)?
 If an attorney violates the terms of the rule, the court may (it is
discretionary) impose sanctions in the form of a non-monetary
order (e.g. censure to the lawyer), a monetary penalty to be paid to
the court, or reasonable attorney’s fees and other expenses to be
paid to the other party “if imposed on motion and warranted for
effective deterrence.” FRCP 11(c)(4)
 If an offending party withdraws or corrects his pleading within
21 days of being served the motion seeking sanctions, he will
not be sanctioned. This is contained in the “safe harbor”
provision contained in FRCP 11(c)(2).
 If a pleading that requires verification isn’t verified, the other party
may move to strike it.

Hadges v. Yonkers Racing Corp.

See text pg. 489

Points for Discussion

a. Sanctioning Procedures under Rule 11

The safe harbor provision at the center of Hadges refers to the following language from
Rule 11: “The motion [for sanctions] must not be filed or presented to the court if
the challenged paper, claim, defense, contention, or denial is withdrawn or
appropriately corrected within 21 days after service [of the motion].” FED. R. CIV.
P. 11(c)(2).

b. Available Sanctions under Rule 11

Sanctions under Rule 11 are discretionary, meaning the court is not obligated to impose
sanctions in the face of a violation of the rule. If the court chooses to impose sanctions,

21
they can range from a minor warning or reprimand to significant monetary sanctions in
rare cases.

d. Purpose of and Need for Rule 11

Rule 11 is in place as an additional part of our system’s attempt to screen out claims by
deterring and punishing those who abuse the pleading system by filing claims and other
court documents that lack merit.

e. Other Sanctioning Provisions

Beyond Rule 11, there are several other sources of authority for regulating the conduct of
attorneys and parties litigating in the federal courts:
Other Sources of Authority for Ensuring Truthful Allegations and Controlling
Litigant Conduct

See pg. 503

CHAPTER SEVEN: JOINDER OF CLAIMS AND PARTIES

A. Claim Joinder

Claim joinder, this section will review the rules determining when a party may assert
multiple claims against its opponent and the rules governing when defending parties may
assert whatever claims they may have.

1. Joinder of Multiple Claims

Rule 18(a) covers joinder between a single plaintiff who wishes to assert multiple claims
against a single defendant.

FRCP 18(a). Joinder Of Claims.

(a) Joinder of Claims. A party asserting a claim, counterclaim, crossclaim, or third-party

claim may join, as independent or alternative claims, as many claims as it has against an
opposing party.

Points for Discussion

a. The Scope of Rule 18(a)

o FRCP 18(a) is permissive; it states that a party “may join” claims as it sees fit
o FRCP 18(a) does not require joinder, rules that come from preclusion doctrine
may compel a party to do so nonetheless

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 o “Rule 18 is merely the carrot, for it is not mandatory. The stick is claim
preclusion, which. . . impels the claimant to assert all transactionally related
elements of recovery in a single suit”.

b. Subject Matter Jurisdiction over Joined Claims

Although the pleading rules may allow the claims to be joined, separate subject matter
jurisdiction determination will have to be made for each claim to see if the court has the
authority to hear those claims.

2. Counterclaims

o The defendant in an action has an array of responses that it may make to a

complaint. Beyond asserting various defenses and objections and filing an answer
responding to the complaint, the defendant is also permitted—and sometimes
compelled—to file claims that it has against the plaintiff. These claims by the
defendant against the plaintiff are called counterclaims.

o Rule 13(a) and (b) set forth the basic rules governing the assertion of
counterclaims:

FRCP 13(a)-(b). Compulsory Counterclaim and Permissive

Counterclaim

(a) Compulsory Counterclaim.

(1) In General. A pleading must state as a counterclaim any claim that—at the
time of its service—the pleader has against an opposing party if the claim:

(A) arises out of the transaction or occurrence that is the subject matter of the
opposing party’s claim; AND

(B) does not require adding another party over whom the court cannot acquire
jurisdiction.

(2) Exceptions. The pleader need not state the claim if:

(A) when the action was commenced, the claim was the subject of another
pending action: or

(B) the opposing party sued on its claim by attachment or other process that did
not establish personal jurisdiction over the pleader on that claim, and the pleader does not
assert any counterclaim under this rule.

(b) Permissive Counterclaim. A pleading may state as a counterclaim against an

opposing party any claim that is not compulsory.

23
United States v. Heyward-Robinson Co.

o The main focus of this case is determining when counterclaims are compulsory
or are permissive.

o Under Rule 13(a) Fed. R. Civ. P., a counterclaim is compulsory “if it arises out of
the transaction or occurrence that is the subject matter of the opposing party’s
claim:
In practice this criterion has been broadly interpreted to require not an
absolute identity of factual background for the two claims, but only a
logical relationship between them… (Lesnik v. Public Industrials
Corp.)‘Transaction’ is a word of flexible meaning. It may comprehend a
series of many occurrences, depending not so much upon the
immediateness of their connections as upon their logical relationship.
(Moore v. New York Cotton Exchange). (this is the standard)

o The requirement that counterclaims arising out of the same transaction or

occurrence as the opposing party’s claim ‘shall’ be stated in the pleadings was
designed to prevent multiplicity of actions and to achieve resolution in a single
lawsuit of all disputes arising out of common matters.

Points for Discussion

a. The Meaning of “Transaction or Occurrence”

o Between Rule 13(a) and Rule 13(b), a defendant can assert any claim as
counterclaim without regard to whether it bears any relationship to the claim
asserted against it.
o The critical issue, then, is to determine when a defendant has a counterclaim that
it must assert under the rules. Figuring out whether a defendant’s counterclaim is
compulsory requires a determination of whether the claim “arises out of the
transaction or occurrence that is the subject matter of the opposing party’s claim.”
Fed. R. Civ. P. 13(a).

b. Subject Matter Jurisdiction over Counterclaims

o As was the case with basic claim joinder, the rules permitting and requiring
counterclaims are pleading rules that indicate what types of claims may and must
be pleaded.
o A separate question is whether the court will have jurisdiction to hear the claims.
Determining whether there is federal subject matter jurisdiction over a
counterclaim involves the same analysis as a supplemental jurisdiction analysis.
 Recall that in order for state law claims to qualify for
supplemental jurisdiction they must “form part of the same
case or controversy” under Article III. 28 U.S.C. 1367(a).

24
c. The Consequences of Failing to Plead a Counterclaim

o Although Rule 13(b) states that a pleading “shall” state any transactionally related
counterclaim, it does not specify the consequences of a failure to do so. “A
defendant’s failure to assert a counterclaim will preclude him from asserting that
claim in a later action if ‘[t]he counterclaim is required to be interposed by a
compulsory counterclaim statute or rule of the court.” Stone v. Dept. of Aviation.

o Rule 13(f) provides for the assertion of previously omitted counterclaims by

amendment if the failure to plead the counterclaim was due to “oversight,
inadvertence, or excusable neglect” or “when justice so requires.”

3. Crossclaims

The Federal Rules provide for multiple defendants to be sued simultaneously within a
single action. Rule 13(g) governs claims defendants wish to assert against fellow
defendants in an action:

FRCP 13(g). Crossclaim Against a Coparty.

(g) Crossclaims Against a Coparty. A pleading may state as a crossclaim any claim by
one party against a coparty if the claim arises out of the transaction or occurrence that is
the subject matter of the original action or of a counterclaim, or if the claim relates to any
property that is the subject matter of the original action. The crossclaim may include a
claim that the coparty is or may be liable to the crossclaimant for all or part of a claim
asserted in the action against the crossclaimant.

Points for Discussion

a. Types of Claims Permitted under Rule 13(g)

o The rule does not make any crossclaims compulsory, regardless of whether they
bear some relationship to the claims asserted in the original action.

o Even though Rule 13(g) limits the types of claims that may be asserted as
crossclaims, recall that Rule 18(a) permits a party asserting any claim, including a
crossclaim, to join any other claim that they may have to their claim regardless of
its relationship to the initial claim.

b. Subject Matter Jurisdiction over Crossclaims

Subject matter jurisdiction must exist over crossclaims even if they may be pleaded under
Rule 13(g).
o Note that Rule 13(g) does not only apply to claims by defendants;
plaintiffs similarly may avail themselves of the rule to assert

25
 crossclaims against co-plaintiffs if the claims satisfy the requirements
of the rule.

B. Party Joinder

o There are many variations on party joinder. Plaintiffs may wish to

unite with other plaintiffs and proceed jointly against a common defendant.
o Alternatively, a single plaintiff may wish to assert claims against
multiple defendants in one lawsuit rather then suing each of them separately.
o A defendant may find that it is defending against claims for which
some third party is liable and would like to join that third party to the action to hold it
responsible.
o Non-parties may find that their interests are going to be affected by an
existing lawsuit and wish to interpose themselves in the action by joining themselves
in the action by joining themselves as a party.
o Or, there may be non-parties that are so integral to the interests being
litigated in an action that the court will determine that they must be joined as a party
regardless of their interest in being so joined.

1. Permissive Party Joinder

Within a single action, parties may voluntarily join together as plaintiffs, or a plaintiff
may choose to join several parties together as defendants provided the requirements of
Rule 20(a) are satisfied:

FRCP 20(a). Permissive Joinder of Parties: Persons Who May Join or Be Joined.

(a) Persons Who May Join or Be Joined.

(1) Plaintiffs. Persons may join in one action as plaintiffs if:

(A) they assert any right to relief jointly, severally, or in the alternative
with respect to or arising out of the same transaction, occurrence, or series of transactions
or occurrences; and

(B) any question of law or fact common to all plaintiffs will arise in the
action.

(2) Defendants. Persons—as well as a vessel, cargo, or other property subject to

admiralty process in rem—may be joined in one action as defendants if:

(A) any right to relief is asserted against them jointly, severally, or in the
alternative with respect to or arising out of the same transaction, occurrence, or series of
transactions or occurrences; and

26
 (B) any question of law or fact common to all defendants will arise in the
action.

(3) Extent of Relief. Neither a plaintiff nor a defendant need be interested in

obtaining or defending against all the relief demanded. The court may grant judgment to
one or more plaintiffs according to their rights, and against one or more defendants
according to their liabilities.

Mosley v. General Motors Corp.

• All persons may join in one action as plaintiffs if they assert any rights to relief
jointly, severally, or in the alternative in respect of or arising out of the same
transaction, occurrence, or series of transaction or occurrences and if any question
of law or fact common to all these persons will arise in the action.
• Additionally, Rule 20(b) and Rule 42(b) vest in the district court the discretion to
order separate trials or make such other orders as will prevent delay or prejudice.
• The purpose of the rule is to promote trial convenience and expedite the final
determination of disputes, thereby preventing multiple lawsuits…Single trials
generally tend to lessen the delay, expense and inconvenience to all concerned:

o Under the Rules, the impulse is toward entertaining the broadest possible
scope of action consistent with fairness to the parties; joinder of claims,
parties and remedies is strongly encouraged.
• Permissive joinder is not, however, applicable in all cases. The rule imposes two
specific requisites to the joinder of parties: (1) a right to relief must be asserted
by, or against, each plaintiff or defendant relating to or arising out of the same
transaction or occurrence, a series of transaction or occurrences; and (2) some
question of law or fact common to all the parties must arise in the action.

• In ascertaining whether a particular factual situation constitutes a single

transaction or occurrence for purposes of Rule 20, a case by case approach is
generally pursued. No hard and fact rules have been established under the rule.
However, construction of the terms ‘transaction or occurrence’ as used in the
context of Rule 13(a) counterclaims offers some guide to the application of this
test. For the purposes of the latter rule:
 “Transaction” is a word of flexible meaning. It may
comprehend a series of many occurrences, depending not so
much upon the immediateness of their connection as upon
their logical relationship.
• Accordingly, all “logically related” events entitling a person to institute a legal
action against another generally are regarded as comprising a transaction or
occurrence.
• The analogous interpretation of the terms as used in Rule 20 would permit all
reasonably related claims for relief by or against different parties to be tried in a
single proceeding

27
 • The second requisite necessary to sustain a permissive joinder under the rule is
that a question of law or fact common to all the parties will arise in the action.
The rule does not require that all questions of law and fact raised by the dispute be
common. Yet, neither does it establish any qualitative or quantitative test of
commonality.
 Specifically, with respect to employment discrimination cases
under Title VII, courts have found that the discriminatory character
of a defendant’s conduct is basic to the class, and the fact that the
individual class members may have suffered different effects from
the alleged discrimination is immaterial for the purposes of the
prerequisite.

Points for Discussion

b. The Requirement of Rule 20(a)

o Although, as the Mosley Court indicated, Rule 20(a) shares similar language with
Rule 13(a), there is a difference in the standard articulated in Rule 20(a) for
permitting party joinder. In addition to providing that the claims asserted by or
against the joined parties that arise out of the same transaction or occurrence can
satisfy the first part of the rule, Rule 20(a) also permits party joinder when the
asserted claims arise out of the same “series of transactions or occurrences.”

o Note also that Rule 20(a) imposes an additional requirement beyond requiring a
transactional relationship: the Rule adds that party joinder will be permitted only
if “any question of law or fact common to all defendants will arise in the action.”
FED. R. CIV. P. 20(a).

c. Severance under Rule 21

In the event that the judge in a case feels that the Rule 20 joinder attempted by the
plaintiff is improper, that judge is empowered by Rule 21 to sever the claims so that
they may be proceeded with separately. See Fed. R. Civ. P. 21.

2. Third-Party Practice

o Rule 20 enables plaintiffs to shape the litigation by determining whether to

assert their claims along with others or to assert their claims against multiple
defendants within a single action. Defendants are afforded the opportunity to
join parties to the litigation through Rule 14 which provides for the joinder of
and assertion of claims against nonparties:

FRCP 14(a)(1). Third-Party Practice: When a Defending Party May Bring in a

Third Party.

28
 (a) When a Defending Party May Bring in a Third Party.

(1) Timing of the Summons and Complaint. A defending party may, as third-party
plaintiff, serve a summons and complaint on a nonparty who is or may be liable to it
for all or part of the claim against it. But the third-party plaintiff must, by motion,
obtain the court’s leave if it files the third-party complaint more than 10 days after
serving its original answer.

o Joinder by defendants under this rule is referred to as impleader

*****Lehman v. Revolution Portfolio L.L.C.

See text pg. 529

Points for Discussion

a. Permissible Claims under Rule 14(a)

Rule 14(a) does not permit the assertion of claims simply based on being part of the same
transaction or occurrence as the original claim, the standard in some of the other joinder
rules.

b. Subsequent Joinder under Rule 14

Under what circumstances may third-party defendants assert claims against the third-
party plaintiff or the original plaintiff? Rule 14(a) addresses this issue as well:

FRCP 14(a)(2). Third-Party Practice:

Third-Party Defendant’s Claims and Defenses.

(a) When a Defending Party May Bring in a Third-Party Defendant’s Claims and
Defenses.

(2) Third-Party Defendant’s Claims and Defenses. The person served with the
summons and third-party complaint—the “third party defendant”:

(A) must assert any defense against the third-party plaintiff’s claim under Rule
12;

(B) must assert any counterclaim against the third-party plaintiff under Rule
13(a), and assert any counterclaim against the third-party plaintiff under Rule 13(b) or
any crossclaim against another third-party defendant under Rule 13(g);

(C) may assert against the plaintiff any defense that the third-party plaintiff has to
the plaintiff’s claim; and

29
 (D) may also assert against the plaintiff any claim arising out of the transaction or
occurrence that is the subject matter of the plaintiff’s claim against the third-party
plaintiff.

**** Notice that the joinder rules must be considered as a whole because once one
party asserts a claim under a rule, that may in turn permit their adversary to assert
various claims under other rules, which in turn could permit still other parties to
assert further claims. This process can become quite convoluted, so diagramming
the parties and ensuing claims can be helpful.

o Even if the third-party defendant does not assert any claims against the
plaintiff, Rule 14(a) states that “The plaintiff may assert any claim against the
third-party defendant arising out of the transaction or occurrence that is the
subject matter of the plaintiff’s claim against the third-party plaintiff.” FED.
R. CIV. P. 14(a)(2)(d).

o Once a party is able to assert a claim by satisfying the requirement of a

particular joinder rule, that party may then assert any additional claims it has
—related or unrelated—under Rule 18(a).

c. Subject Matter Jurisdiction and Third-Party Claims

o Even though joinder may be permissible under the joinder rules, it is still
necessary to consider separately whether there is proper subject matter
jurisdiction and personal jurisdiction over the claims and parties sought to be
joined
o How will subject matter jurisdiction questions generally be resolved in the
case of third-party claims, given the relationship such claims must have with
original claims and given the language of the federal supplemental
jurisdiction statute 28 U.S.C. 1367?
 “It is well settled that supplemental jurisdiction exists over a
properly brought third-party complaint.” (Grimes v. Mazda North
American Operations)
 Plaintiffs may assert claims against third-party defendants under
Rule 14(a) provided there is a basis for subject matter jurisdiction.
Remember that even though third-party claims will enjoy supplemental
jurisdiction, additional joined claim under Rule 18(a) – such as was present in
Lehman—require their own subject matter jurisdiction analysis in light of the fact
that such claims need not bear any relationship to the claims to which they are
joined.

d. The Real Party in Interest Rule

o Rule 17(a) requires that “[a]n action must be prosecuted in the name of the real
party in interest.” FED. R. CIV. P. 17(a)(1).

30
 o Does Rule 17(a) also apply to defendants, requiring that defendants identify
and join parties that should be viewed as the real party in interest on the
defendant’s side of the action? The Supreme Court recently said no.
 “Rule 17(a) applies only to joinder of parties who assert claims.”
(Lincoln Property Co. v. Roche).

e. Fourth-Party Claims under Rule 14(a)

o Can a third-party defendant make use of Rule 14(a) to turn around and
assert a derivative liability claim against a fourth party? FED. R. CIV. P.
14(a)(5).
 “A third-party defendant may proceed under this rule against a
nonparty who is or may be liable to the third-party defendant for
all or part of any claim against it.” (Bank of India v. Trendi
Sportswear, Inc.)

3. Compulsory Party Joinder

Under certain circumstances, however, whether a non-party should be joined is not a

matter of choice but one of compulsion. Such compulsory party joinder is provided for in
Rule 19. The rule consists of two parts. Rule 19(a) sets forth the criteria for determining
whether a party is “needed for just adjudication,” a status that would make them a
necessary party in the common parlance under the rule:

FRCP 19(a). Required Joinder of Parties: Persons Required to Be Joined if

Feasible?

(a) Persons Required to Be Joined if Feasible.

(1) Required Party. A person who is subject to service of process and whose joinder will
not deprive the court of subject matter jurisdiction must be joined as a party if:

(A) in that person’s absence, the court cannot accord complete relief among
existing parties; or

(B) that person claims an interest relating to the subject of the action and is so
situated that disposing of the action in the person’s absence may:

(i) as a practical matter impair or impede the person’s ability to protect the
interest; or

(ii) leave an existing party subject to a substantial risk of incurring double,

multiple, or otherwise inconsistent obligation because of the interest.

31
(2) Joinder by Court Order. If a person has not been joined as required, the court must
order that the person be made a party. A person who refuses to join as a plaintiff may be
made either a defendant or, in a proper case, an involuntary plaintiff.

(3) Venue. If a joined party objects to venue and the joinder would make venue improper,
the court must dismiss that party.

Temple v. Synthes Corporation, Ltd.

o “The most significant reason for requiring joinder was the interest of judicial
economy.”
o “The interest of the courts and the public in complete, consistent, and efficient
settlement of controversies” is one focus of Rule 19.
o “It has long been the rule that it is not necessary for all joint tortfeasors to be
named as defendants in a single lawsuit.”
o “The Advisory Committee Notes to Rule 19(a) explicitly state that “a tortfeasors
with the usual ‘joint-and-several’ liability is merely a permissive party to an
action against another with like liability.”

Points for Discussion

a. The Requirement of Rule 19(a)

The Court in Temple concludes that joint tortfeasors are not necessary parties under
Rule 19(a).

b. Feasibility under Rule 19(a)

Once a non-party is deemed to be a necessary party under Rule 19(a), the court is
required to join that party to the action “if feasible”. Joinder of the party is feasible
if the court is able to exercise personal jurisdiction over the party, if joinder
would not undermine the subject matter jurisdiction of the court, and if the
party to be joined has no valid objection to venue. FED. R. CIV. P. 19(a).

c. Challenging a Failure to Join under Rule 19

o The proper mechanism for challenging an opposing party’s failure to join a

party under Rule 19 is either to move for the court to join the party under Rule
19 or to file a motion to dismiss under Rule 12(b)(7) for failure to join a
party under Rule 19.
o Rule 19(b) permits courts to dismiss actions where it is not feasible to join
important necessary parties to the action.
o Rule 19(b) provides for the dismissal of an action when joinder of a necessary
party under Rule 19(a) is not feasible:

FRCP 19(b). Required Joinder of Parties:

32
 When Joinder Is Not Feasible.

(b) When Joinder Is Not Feasible. If a person who is required to be joined if feasible
cannot be joined, the court must determine whether, in equity and good conscience, the
action should proceed among the existing parties or should be dismissed. The factors for
the court to consider include:

(1) the extent to which a judgment rendered in the person’s absence might
prejudice that person or the existing parties; (2) the extent to which any prejudice could
be lessened or avoided by:

(A) protective provisions in the judgment;

(B) shaping the relief; or
(C) other measures;

(3) whether a judgment rendered in the person’s absence would be adequate; and

(4) whether the plaintiff would have an adequate remedy if the action were dismissed for
nonjoinder.

o If a necessary party’s presence in an action is so important that the case must be

dismissed in her absence based on a Rule 19(b) analysis, that party is referred to
as an indispensable party.

Wilbur v. Locke

o Application of Rule 19 involves “three successive inquiries”:

First, the court must determine whether a nonparty should be joined under Rule
19(a). We and other courts use the term “necessary” to describe those “[p]ersons
to be joined if feasible.”…if an absentee is a necessary party under Rule 19(a), the
second stage is for the court to determine whether it is feasible to order that the
absentee be joined.

Finally, if joinder is not feasible, the court must determine at the third stage
whether the case can proceed without the absentee, or whether the absentee is an
“indispensable party” such that the action must be dismissed…Rule 19 uses “the
word ‘indispensable’ when he cannot be made a party and, upon consideration of
the factors [in Rule 19(b)], it is determined that in his absence it would be
preferable to dismiss the action, rather than to retain it.”

o An analysis also includes “whether in equity and good conscience the action
should proceed among the parties before it, or should be dismissed, the absent
person being thus regarded as indispensable.” Fed. R. Civ. P. 19(b). In making
this determination, we consider four issues:

33
  First, to what extent a judgment rendered in the person’s absence
might be prejudicial to the person or those already parties;
 Second, the extent to which, by protective provisions in the
judgment, by the shaping of relief, or other measures, the prejudice
can be lessened or avoided;
 Third, whether a judgment rendered in the person’s absence will
be adequate;
 Fourth, whether plaintiff will have an adequate remedy if the
action is dismissed for nonjoinder.

Points for Discussion

a. The Consequences of a Failure to Join a Party under Rule 19

o The consequences of being unable to join a party deemed necessary under Rule
19(a) can be severe: the case is dismissed.
o Rule 19(b) instructs the court to make its dismissal determination “in equity and
good conscience.” What does this mean?: “ The phrase emphasizes the
flexibility that a judge may find necessary in order to achieve fairness in the
judge’s choice of solutions, a choice to be marked by ‘mercy and practicality’.”
(Merrill Lynch, Inc. v. ENC Corp.)

b. Applying the Factors of Rule 19(b)

How should courts apply the four factors listed in Rule 19(b) when making their
dismissal determinations? Do any of the factors deserve more weight than the
others?

o “Rule 19(b) lists several factors as bearing on this determination, of which the two
most important in this case are ‘to what extent a judgment rendered in the
person’s absence might be prejudicial to’ him and ‘whether the plaintiff will have
an adequate remedy if the action is dismissed for nonjoinder’.” (Extra
Equipamentos E Exportacao Ltd. v. Case Corp.)
o “Given the absence of an alternative forum, proceedings to the merits in this
action is the plaintiffs’ only hope of obtaining an adequate remedy. In my view,
this single factor makes dismissal of the suit so harsh that it may outweigh the
other three factors combined.” (Confederated Tribes of Chehalis Indian
Reservation v. Lujan).

c. Using Other Joinder Devices

o Defendants who feel that certain absent parties should be joined in the action need
not always rely upon compulsory joinder under Rule 19. For example, if a
defendant feels that a joint tortfeasors should be joined in an action, it can

34
 implead that party as a third-party defendant under Rule 14(a), even though that
party would not qualify for compulsory joinder under Rule 19(a).

o Note also a defendant’s ability to join non-parties through Rule 13(h), which
permits defendants that assert counterclaims or crossclaims to join non-parties to
those claims pursuant to Rule 19 or 20.

CHAPTER EIGHT: Discovery

Litigants need to engage in some measure of discovery in order to obtain information

germane to their claims or defenses. This information in turn helps each side build their
case and prepare for trial or, in most cases, a summary judgment battle or settlement
negotiations. It is only through the exploration of all the facts that the parties can develop
a fuller understanding of the disputed events and issues and formulate how they intend to
make their case before the court.

A. The Scope of Discovery: Relevance

o Discovery in the federal system is traditionally regarded as quite broad. Ours is a

system in which litigants in theory do not rely upon surprise and ambush to
prevail, but rather on the full exchange of information so that resolution on the
merits is possible.

FRCP 26(b)(1). Discovery Scope and Limits: Scope in General

REFER TO CASEBOOK PG. 580

REFER TO BLUEBOOK PG. 64

o There are several aspects to this rule:

 First, the basic scope of discovery is all information relevant to a
claim or defense of any party.
 Second, relevant material that is privileged is not discoverable.
 Third, the scope of discovery may be expanded by the court to
cover any matter relevant to the subject matter involved in the
action rather than simply a claim or defense of any party.
 Fourth, relevant material under the rule does not have to be
“admissible” but rather simply must be reasonably calculated to
lead to the discovery of admissible evidence.
 Finally, there are limitations applicable to the rule, which may be
found in Rule 26(b)(2).

The core requirement here, then, is that the information must be relevant to a
claim or defense of any party.

35
American Roller Co., LLC v. Foster-Adams Leasing, LLP

o Rule 26 (c) authorizes a court “for good cause shown” to issue a protective order
barring or limiting discovery when “justice requires to protect a party or person
from annoyance, embarrassment, oppression, or undue burden or expense.”
o No showing of good cause as required by Rule 26(b)(1) has been made to expand
the scope of discovery to the broader “subject matter” standard.
o “This Court “has the authority to confine discovery to the claims and defenses
asserted in the pleadings.”
o The 2000 Amendment explicitly limited the scope of discovery to the “claim or
defense of any party” identified in the pleadings without leave of the court. The
2000 Amendment to Rule 26(b)(1) “signals to the parties that they have no
entitlement to discovery to develop new claims or defenses that are not already
identified in the pleadings.” Advisory Committee Notes to 2000 Amendment to
Rule 26(b)(1).

Points for Discussion

a. Scope of Discovery after the 2000 Amendments to Rule 26(b)(1)

o As mentioned previously, the 2000 Amendments to the FRCP narrowed the

scope of discoverable information from that relevant to the “subject matter” of
the action to information relevant to “a claim or defense” raised in the action.

o Often, plaintiffs may not have a full picture of the wrongdoing that may have
been perpetrated by the defendant when a suit is filed and thus they hope to
use discovery to obtain information that may permit then to add additional
claims to their complaints. Under the old “subject matter” language of the
rule, such “fishing expeditions” were allowed.

o The court in American Roller indicated that under the amended version of the
rule, discovery related to unasserted claims is no longer permissible.

b. “Subject Matter” Discovery for Good Cause

o Rule 26(b)(1) indicates that a court may order discovery of information

relevant to the subject matter of the action “[f]or good cause.”

c. Protective Orders

o Rule 26(c) is the rule permitting the targets of discovery efforts to seek a
protective order from the court if they object to the production of
requested information.

36
 o Under Rule 26(c), persons who seek protective orders must first “meet and
confer” with the requesting party and make a good faith effort to resolve
the discovery dispute without court action.
o Then, “good cause” must be shown and the rule indicates that such orders
are appropriate “to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense. FED. R. CIV. P.
26(c).
o What should constitute “good cause” under this rule?
 Good cause exists when a party shows that disclosure will
result in a clearly defined, specific and serious injury, but
broad allegations of harm are not sufficient to establish
good cause. (Pansy v. Borough of Stroudsburg)
Protective orders are also appropriate when the court determines that the
discovery request seeks information that lies beyond the scope of
discovery under Rule 26(b)(1).

o Protective orders are also appropriate when the court needs to impose
some of the limitations found within Rule 26(b)(2)

o The remedies that the court can provide through a protective order can
include ordering that the information be kept confidential, an order
narrowing of the scope to the request, an order permitting the responding
party to produce the information in a particular format, or an order
denying the discovery of the information altogether.

o Courts have enormous discretion in this area to shape protective orders to

workout the wide array of discovery disputes that arise between parties
during the course of a lawsuit.

d. Discovery from Non-Parties

o When non-parties are the object of discovery, the mechanisms for

obtaining information from them are more limited under the Rules
because not all of the discovery mechanisms are applicable to non-
parties.
 For example, the rules providing for interrogatories and
physical examinations may not be used to obtain
information from non-parties.
However, Rule 45 permits non-parties to be subjected to depositions
and document inspection via subpoenas. FED. R. CIV. P. 45(a)(1)(A).
o When discovery is sought from non-parties, requesting parties are
under an affirmative obligation not to impose “undue burden or
expense” on the responding nonparty. FED. R. CIV. P. 45(c)(1).

B. Limits on the Scope Discovery

37
 o Limitations set forth in Rule 26(b)(2):
 Subsection A of the rule permits courts to limit the
number and length of depositions or the number of
interrogatories in its discretion.
 Subsection B protects parties against the burden of
having to produce electronically stored information that
is “not reasonably accessible.”
 Subsection C permits the court to limit discovery based
on factors intended to ensure that discovery requests are
proportional to the needs, costs, and burdens of all
parties involved.

1. Burden and Proportionality Limits Generally

• Rule 26(b)(2)(C) enables the court to limit discovery if the court finds that the
discovery is too burdensome in relation to its utility to the litigation.

• The concern reflected in this rule is one of proportionality, meaning that although
discovery is broad and the parties are entitled to certain information, discovery of
information whose cost and burden far outweigh the contribution the information
can make to the case need not be permitted.

FRCP 26(b)(2)(C): Discovery Scope and Limits: When Required.

REFER TO PG. 599 IN THE CASEBOOK

REFER TO PG. 64 IN BLUEBOOK

• Because parties are ordinarily required to cover their own costs of producing
information in response to discovery requests (costs that can include the time and
expense of retrieving and reviewing information before it is produced), if the
costs or burdens appear to be prohibitive or unreasonable, responding parties can
and often do seek protection from the court under the terms of Rule 26(c).

Gonzales v. Google, Inc.

• Rule 45 of the FRCP governs discovery of nonparties by subpoena.

o The Advisory Committee Notes to the 1970 Amendments to Rule 45
state that the “scope of discovery through a subpoena is the same as
that applicable to Rule 34 and other discovery rules.” Rule 45
advisory committee’s note (1970). Under Rule 34, the rule governing
the production of documents between parties, the proper scope of
discovery is as specified in Rule 26(b). FED. R. CIV. P. 34
• Rule 26, in turn, permits the discovery of any non-privileged material “relevant to
the claim or defense of any party,” where “relevant information need not be
admissible at trial if the discovery appears reasonably calculated to lead to the

38
 discovery of admissible evidence.” Rule 26(b)(1). Relevancy, for the purposes of
discovery, is defined broadly, although it is not without “ultimate and necessary
boundaries.”
• Rule 26 also specifies that “[a]ll discovery is subject to the limitations imposed by
Rule 26(b)(2)(i), (ii), and (iii)
 The Advisory Committee Notes to the 1983 amendments to
Rule 26 state that “the objective is to guard against redundant
or disproportionate discovery by giving the court authority to
reduce the amount of discovery that may be directed to
matters that are otherwise proper subjects of inquiry.”
However, the commentators also caution that “the court must
be careful not to deprive a party of discovery that is reasonably
necessary to afford a fair opportunity to defend and prepare
the case.
• In addition to the discovery standards under Rule 26
incorporated by Rule 45, Rule 45 itself provides that “on timely motion, the court
by which a subpoena was issued shall quash or modify the subpoena if it…
subjects a person to undue burden.” FED. R. CIV. P. 45(3)(A).
• “If the sought-after documents are not relevant, nor
calculated to lead to the discovery of admissible evidence, then any burden
whatsoever imposed would be by definition ‘undue’”. Compaq Computer Corp.
v. Packard Bell Elec., Inc.
• Any information sought by means of a subpoena must be
relevant to the claims and defenses in the underlying case. More precisely, the
information sought must be “reasonably calculated to lead to admissible
evidence.” Rule 26(b). This requirement is liberally construed to permit the
discovery of information which ultimately may not be admissible at trial.
• Under Rule 45(c)(3)(A), a court may modify or quash a
subpoena even for relevant information if it finds that there is an undue burden on
the nonparty. Undue burden to the nonparty is evaluated under both Rule 26 and
Rule 45.
• Rule 45 (c)(3)(B) provides additional protections where a
subpoena seeks trade secret or confidential commercial information form a
nonparty. Once the nonparty shows that the requested information is a trade secret
or confidential commercial information, the burden shifts to the requesting party
to show a “substantial need for the testimony or material that cannot be otherwise
met without undue hardship and assures that the person to whom the subpoena is
addressed will be reasonably compensated.” Rule 45(c)(3)(B).
• A district court may in its discretion limit discovery on a
finding that “the discovery sought is unreasonably cumulative or duplicative, or is
obtainable from some other source that is more convenient, less burdensome, or
less expensive.” Rule 26(b)(2)(i).

Points for Discussion

a. Undue Burden & Proportionality under Rule 26(b)(2)(C)

39
 • Because parties are entitled to all relevant information as they develop their
claims or defenses, if there is no serious burden on the person being asked to
produce the information, then there is no real basis for denying the discovery of
relevant, non-privileged information.
• However, when such a burden would result from having to comply with a
discovery request, the issue becomes whether the burden is sufficiently substantial
to warrant protecting the responding party from having to produce the desired
information.
• Rule 26(b)(2)(C) instructs courts to take into account the “parties’ resources” in
making these determinations.
• Burden can also be measured by negative consequences that will result from
compliance with the requested discovery, such as bad publicity or the disclosure
of confidential or protected trade information.

b. Cumulative & Duplicative Discovery

Rule 26(b)(2)(C) indicates that courts may limit discovery if it is unreasonably

cumulative or duplicative.

c. Cost-Shifting

The general rule in discovery is that the responding party must pay the expenses
associated with responding to a discovery request.

2. Proportionality Limits on Electronic Discovery

• When the liberal discovery regime of the federal system was overlain with this
technological reality, a problem occurred. With massive volumes of
electronically stored information (“ESI”) in one’s possession, responding to a
discovery request became much more burdensome affair in several ways.
 A larger universe of documents makes the discovery process
more expensive
 Various electronic formats differ in the degree to which they
can be accessed and searched (i.e. active data on one’s hard
drive is relatively easy to access, while information stored
on archival backup tapes may require time-consuming and
costly restoration processes before the information can be
reviewed)
Because of the unique challenges that ESI presents to the discovery process,
in 2006 the Federal Rules were amended in several respects.
• Under the 2006 amendments the core measure of burden-
someness and proportionality is a new concept: accessibility
• Revised Rule 26(b)(2)(B) protects parties against having to
produce ESI that they deem to be “not reasonably accessible.”

40
FRCP 26(b)(2)(B). Discovery Scope & Limits: Limitations on Frequency and Extent

REFER TO PG. 615 IN CASEBOOK

REFER TO PG. 64

Zubulake v. UBS Warburg LLC

• The “simplified notice pleading standard relies on liberal discovery rules and
summary judgment motions to define disputed facts and issues and to dispose of
unmeritorious claims.” (Swierkiewicz v. Sorema)

• “Broad discovery is a cornerstone of the litigation process contemplated by the

FRCP.” The Rules contemplate a minimal burden to bringing a claim; that claim
is then fleshed out through vigorous and expansive discovery. (Hickman v.
Taylor)

Legal Standard

• FRCP Rule 26(b)(2) imposes general limitations on the scope of discovery in the
form of a “proportionality test”. Under the discovery rules, the presumption is that
the responding party must bear the expense of complying with discovery requests,
but it may invoke the district court’s discretion under Rule 26(c) to grant orders
protecting it from ‘undue burden or expense’ in doing so, including orders
conditioning discovery on the requesting party’s payment of the costs of
discovery.

• When electronic information will be costly to retrieve, the solution the courts
have created is to consider cost-shifting: forcing the requesting party, rather than
the answering party, to bear the cost of discovery.

• Electronic documents that may have been deleted and now reside only on backup
disks are discoverable as well (as long as the information is relevant to claims
made in pleadings).

• Cost-shifting does not have to be considered in every case involving the discovery
of electronic information.

• If costs are shifted from the producing party to the requesting party it will cripple
cases involving private parties and large corporations. It would “undermine the
“strong public policy favoring resolving disputes on their merits,” and may
ultimately deter the filing of potentially meritorious claims.

• Cost-shifting should be considered only when electronic discovery imposes an

“undue burden or expense” on the responding party. The burden or expense

41
 of discovery is, in turn, “undue” when it “outweighs its likely benefit, taking
into account the needs of the case, the amount in controversy, the parties’
resources, the importance of the issues at stake in the litigation, and the
importance of the proposed discovery in resolving the issues.

• Whether production of documents is unduly burdensome or expensive turns

primarily on whether it is kept in an accessible or inaccessible format (a
distinction that corresponds closely to the expense of production).

o A document is accessible if it is readily available in a usable format and

reasonably indexed.
o Examples of inaccessible paper documents could include:
 (a) documents in storage in a difficult to reach place
 (b) documents converted to microfiche and not easily readable;
 (c) documents kept haphazardly, with no indexing system, in
quantities that make page-by-page searches impracticable.
• Whether electronic data is accessible or inaccessible turns largely on the media on
which it is stored. Five categories of data, listed in order from most accessible to
least accessible, are decided in the literature on electronic data storage:
 Active, online data (most accessible): hard drives; access
frequency is high and the speed is very fast
 Near-line data (readily usable): optical disks; relatively fast access
rate
 Offline storage/archives (readily usable): removable optical disks
or magnetic tape media; slow access speed; used for making
archival records and disaster records
 Backup tapes(not readily usable): the data on a backup tape are not
organized for retrieval of individual documents or files—must read
all preceding blocks; to restore these tapes is very time-consuming
and expensive
 Erased, fragmented or damaged data (not readily usable): can
only be accessed after significant processing.

Cost-Shifting Analysis
• In order to maintain the presumption that the responding party pays, the cost-
shifting analysis must be neutral; close calls should be resolved in favor of the
presumption.
• Seven-factor test:
o The extent to which the request is specifically tailored to discover relevant
information; utility; most important
o The availability of such information from other sources; utility; most
important
o The total cost of production, compared to the amount in controversy;
 cost issues

42
 o The total cost of production, compared to the resources available to each
party; cost issues
o The relative ability of each party to control costs and its incentive to do so;
 cost issues
o The importance of the issues at stake in the litigation;  will only rarely
come into play
o The relative benefits to the parties of obtaining the information  least
important
• When evaluating cost-shifting, the central question must be, does the request
impose an “undue burden or expense” on the responding party?

Conclusion (Three Step Analysis)

• First, it is necessary to thoroughly understand the responding party’s computer

system, both with respect to active and stored data. For data that is kept in an
accessible format, the usual rules of discovery apply: the responding party should
pay the costs of producing responsive data. A court should consider cost-shifting
only when electronic data is relatively inaccessible, such as in backup tapes.

• Second, because the cost-shifting analysis is so fact-intensive, it is necessary to

determine what data may be found on the inaccessible media. Requiring the
responding party to restore and produce responsive documents from a small
sample of the requested backup tapes is sensible approach in most cases.

• Third, in conducting the cost-shifting analysis, the seven factors should be

considered, weighted more-or-less in the order presented.

Points for Discussion

b. Dispute Resolution Procedure under Rule 26(b)(2)(B)

• Rule 26(b)(2)(B) permits the responding party not to produce relevant, responsive
ESI that is contained within not reasonably accessible formats based on its own
judgment regarding accessibility.

• After the responding party identifies the sources that are not reasonably
accessible, the requesting party may then file a motion to compel production of
the information, which in turn obligates the responding party to demonstrate
inaccessibility based on undue burden and cost.

• If undue burden is established, the requesting party must show “good cause” to
obtain a court order forcing the responding party to produce the information.

c. Relevance and Inaccessible ESI

43
 • The discovery questions that we are considering generally involve a two-part
inquiry:
o Is the information relevant
o If so, would it be unduly burdensome to produce it?
o What should courts do when the inaccessibility of ESI prevents any
initial determination of relevance without great expense?
 Ordering the random sampling of requested backup tapes to
determine relevance and cost of retrieval. (Zubulake v. UBS &
McPeek v. Ashcroft)

3. Privilege and Work-Product Protection

The Attorney-Client Privilege A matter is privileged if it is covered by a privilege rule

that gives certain persons the right to withhold the information from disclosure for
various reasons
• Society values the relationships protected by privileges and prioritizes free
communication in the context of these relationships more than the contribution
such information could make to improved accuracy of litigation outcomes were it
obtainable
• Public Policy: The right to the representation of legal counsel is a deeply-
embedded value in American society and a critical component of protecting that
relationship is enabling clients to be completely candid with their attorneys so that
they might be better able to represent their clients’ interests.
• Generally speaking, the elements of the attorney-client privilege are as follows:
(1) the asserted holder of the privilege is or sought to become a client
(2) the person to whom the communication was made
(a) is a member of the bar of a court, or his or her subordinate, nad
(b) in connection with this communication is acting as a lawyer;
(3) the communication relates to a fact of which the attorney was informed
(a) by his client
(b) without the presence of strangers
(c) for the purpose of securing primarily either
(i) an opinion of law or
(ii) legal services
(iii) assistance in some legal proceeding, and
(d) not for the purpose of committing a crime or tort; and
(4) the privilege has been
(a) claimed and
(b) not waived by the client
• The client must be communicating with the attorney for the purposes of securing
legal advice, and the privilege does not hold if it has been waived.
• In Upjohn Co.v. United States the Supreme Court explained that the privilege
applied throughout the organization, not just to communications with key
managers.

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 The Work-Product Doctrine Separate from the attorney-client privilege is another
similar doctrine that protects materials prepared in anticipation of litigation from
being disclosed to a certain extent: the work-product doctrine. The doctrine today is
covered in Rule 26 (b)(3).

Hickman v. Taylor

• The various instruments of discovery now serve (1) as a device, along with the
pretrial hearing under Rule 16, to narrow and clarify the basic issues between the
parties, and (2) as a device for ascertaining the facts, or information as to the
existence or whereabouts of facts, relative to those issues.

• Discovery has ultimate and necessary boundaries. As indicated by Rules 30(b)

and (d) and 31(d), limitations inevitably arise when it can be shown that the
examination is being conducted in bad faith or in such a manner as to annoy,
embarrass or oppress the person subject to the inquiry. And as Rule 26(b)
provides, further limitations come into existence when the inquiry touches upon
the irrelevant or encroaches upon the recognized domains of privilege.

• For present purposes, it suffices to note that the protective cloak of this privilege
does not extend to information which an attorney secures from a witness while
acting for his client in anticipation of litigation. Nor does this privilege concern
the memoranda, briefs, communications and other writings prepared by counsel
for his own use in prosecuting his client’s case; and it is equally unrelated to
writings which reflect an attorney’s mental impressions, conclusions, opinions or
legal theories.

• The court in this case found that the information that the petitioner was requesting
from opposing counsel had been revealed to him already through the
interrogatories or is readily available to him direct from the witnesses for the
asking.

• Not even the most liberal of discovery theories can justify unwarranted inquiries
into the files and the mental impressions of an attorney.

• “Work product of the lawyer”

o Interviews
o Statements
o Memorandum
o Correspondence
o Briefs
o Mental Impressions
o Personal beliefs

45
Were such materials open to opposing counsel on mere demand, much of what is
now put down in writing would remain unwritten

• We do not mean to say that all written materials obtained or prepared by an

adversary’s counsel with an eye toward litigation are necessarily free from
discovery in all cases. Where relevant and non-privileged facts remain hidden in
an attorney’s file and where production of those facts is essential to the
preparation of one’s case, discovery may properly be had.

• But the general policy against invading the privacy of an attorney’s course of
preparation is so well recognized and so essential to an orderly working of our
system of legal procedure that a burden rests on the one who would invade that
privacy to establish adequate reasons to justify production through a subpoena or
court order. That burden, we believe, is necessarily implicit in the rules as now
constituted.

• Rule 30 (b), as presently written, gives the trial judge the requisite discretion to
make a judgment as to whether discovery should be allowed as to written
statements secured from witnesses. (not applicable)

• Under ordinary conditions, forcing an attorney to repeat or write out all that
witnesses have told him and to deliver the account to his adversary gives rise to
grave dangers of inaccuracy and untrustworthiness. No legitimate purpose is
served by such production. The practice forces the attorney to testify as to what he
remembers or what he saw fit to write down regarding witnesses’ remarks. Such
testimony could not qualify as evidence; and to use it for impeachment or
corroborative purposes would make the attorney much less an officer of the court
and much more an ordinary witness. The standards of the profession would
thereby suffer.

Points for Discussion

a. Work-Product Protection under the Federal Rules

Rule 26(b)(3) was added to the Federal Rules in 1970 to set forth rules governing the
discovery of work product

FRCP 26(b)(3). Discovery Scope and Limits; Trial Preparation: Materials

REFER TO PG 641IN THE CASEBOOK

REFER TO PG 65 IN BLUEBOOK

• Documentary materials prepared in anticipation of litigation or for trial by or

for another party or that party’s representation are protected from discovery
unless the requesting party can show a substantial need for the materials

46
 • However, “mental impressions, conclusions, opinions, or legal theories” of a
party’s representative are never discoverable.

b. Asserting Privilege and Work-Product Protection

• Although the Federal Rules exclude privileged and work-product protected

materials from the scope of discovery, responding parties are obliged to indicate
the material that is being withheld based on assertions of privilege or work-
product protection in a privilege log.
• An attorney does not have to disclose to opposing counsel who has relevant
information or who attorney believes has relevant information because that is
work product disclosure (i.e., mental impressions and legal theories)
• Rule 26(b)(5) provides that parties asserting such protections “must: (i) expressly
make the claim; and (ii) describe the nature of the documents, communications, or
tangible things not produced or disclosed—and do so in a manner that, without
revealing information itself privileged or protected, will enable other parties to
assess the claim.”

c. The Meaning of “In Anticipation of Litigation”

• The work-product rule—Rule 26(b)(3)—uses the phrase “in anticipation of

litigation.” How far in advance can a party anticipate litigation and thereby
obtain work-product protection for the material?
 Courts have reached two different conclusions regarding how the
phrase “in anticipation of litigation” should be interpreted. Some
courts adhere to the notion that documents are protected by work-
product privilege if they are prepared “primarily or exclusively to
assist in litigation.”
 The majority of courts, however, reject such a definition as
unsupported by the language of the rule and follow the “prepared
because of litigation” approach. Under this formulation of the
work-product rule, a document should be deemed prepared “in
anticipation of litigation,” if “in light of the name of the document
and the factual situation in the particular case, the document can
fairly be said to have been prepared or obtained because of the
prospect of litigation

d. The Meaning of “Substantial Need”

• To overcome work-product protection, a requesting party must show a
“substantial need” for the information. Why type of showing should be
necessary to demonstrate substantial need?
o To demonstrate substantial need, a party must demonstrate an inability to
obtain equivalent evidence without undue hardship. (In re Natural Gas
Commodities Litig.)
• The attorney-client privilege only holds up if it has been waived, which can occur
whenever the protected communication is disclosed to third parties.

47
 • It is important to note, however, that if a waiver occurs, that can jeopardize not
only the confidentiality of the disclosed communication but the confidentiality of
all communications relating to the same subject matter.
• The breadth of a subject matter waiver is compounded by the fact that once a
waiver occurs with respect to one party, the communication can no longer be
claimed as privileged with respect to others.
• Because subject matter waivers can result in the permanent loss of privilege
protection and the resultant required disclosure of significant amounts of
otherwise privileged information in current and future litigation, attorneys rightly
take great care when conducting a privilege review of material before it is
disclosed to requesting parties during discovery.

f. Experts and Trial Preparation

How should such experts be treated for purposes of discovery?

• Rule 26(a)(2) requires the disclosure of the identity of all experts that a party
intends to call at trial and requires the expert to prepare a report detailing her
expected testimony, the basis for her opinions, the data or other information
“considered” in forming those opinions, her qualifications, experience as an
expect witness, and level or compensation to be received for serving as a witness
in the present case.
• Parties must be careful in what they disclose to experts in the course of litigation.
Experts who will appear at trial may be deposed, FED. R. CIV. P. 26(b)(4)(A),
and any material that serves as a basis for their opinions must be disclosed, FED.
R. CIV. P. 26(a)(2)(B).
• Indeed, courts have held that testifying experts must disclose all material they
have consulted during litigation, regardless of whether that material is relied upon
for their testimony.

4. Electronic Discovery & Protected Materials

• As a result of these conditions, it is virtually inevitable that both sides will end up
inadvertently disclosing material that is privileged or protected by the work-
product doctrine.
• The consequences of such disclosures typically are a waiver of the privilege, and
in the worst case a waiver of privilege with respect to the subject matter covered
by the material.
• With the consequences of inadvertent disclosure being so severe, attorneys have
no choice but to be meticulous about privilege review, which ultimately drives up
the time and expense associated with screening material before it is produced.

a. 2006 Amendments to the Federal Rules of Civil Procedure

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• First, the Federal Rules of Civil Procedure were amended in 2006 to encourage
parties to enter into various “non-waiver” agreements by which they agree not to
treat certain disclosures as privilege waivers.

• One type of non-waiver agreement has been referred to as a “claw-back”

agreement, so labeled because under such agreements parties are entitled to
reclaim (or “claw-back”) material that they produced but should have withheld
based on privilege or work-product protection.

• Such agreements can be useful because the party receiving the inadvertently
disclosed material agrees not to treat the disclosure as a waiver and they agree to
return the material to the producing party, or at least to sequester the material until
the court decides on the merits of the claims of privilege.

• The other major type of agreement concerning privilege reviews are so-called
“quick peek” agreements.

 These agreements permit requesting parties to review a body of

material in possession of the responding party prior to a privilege
review by the responding party in order to identify the subset of
material that the requesting party is actually interested in having
produced.
 The responding party then conducts a fullscale privilege review for
that smaller subset of material rather than the entire universe of
material they would have otherwise been obliged to review
 The benefit of this approach is that he time and expense of
privilege review can be dramatically reduced by permitting parties
to focus on the material that actually matters in the case.

• Rule 26(f)(3)(D) instructs the parties to include any agreements they reach on
matters pertaining to privilege and inadvertent disclosures within their discovery
plan while Rule 16(b) permits courts to incorporate such agreements into their
pre-trial scheduling orders.
• However to the extent there is no party agreement in place, revised Rule 26(b)(5)
(B) opts for the claw-back approach to resolving disputes related to inadvertent
disclosure:

FRCP 26(b)(5)(8). Discovery Scope and Limits: Information Provided

REFER TO PG. 649 IN THE CASEBOOK

REFER TO PG 66 IN THE BLUEBOOK

• “The better approach is to assume that complete pre-production privilege review

is required, unless it can be demonstrated with particularity that it would be
unduly burdensome or expensive to do so…to protect themselves against the

49
 waiver with respect to third-parties, they should conduct as extensive and
disciplined a pre-production privilege review as they would were no non-waiver
agreement in place. Unfortunately, though the result of having to take such an
approach will be that little if any of the time and cost of savings sought by the rule
change will be achieved.

C. Discovery Devices

1. Rule 26(a): Initial Disclosures

Rule 26(a)(1) requires the parties to disclosure certain information to one another at the
beginning of the action without awaiting a specific request for the material:

FRCP 26(a)(1). Duty to Disclose; General Provision Governing Discovery;

Required Disclosures

REFER TO PG. 653 IN THE CASEBOOK

REFER TO PG. 61 IN THE BLUEBOOK

• Rule 37(c)(1) provides that information that is not disclosed as required under
Rule 26(a)(1) may not be used as evidence at trial.
• The topic of initial disclosures is something that the parties are supposed to
discuss at the discovery conference provided for in the Rule 26(f).
o At this conference, if the parties do not actually make the required initial
disclosures, they are to make arrangements for doing so.
o These arrangements may include an agreement to alter the default timing
applicable to initial disclosures or any of the requirements surrounding
initial disclosures required under Rule 26(a)(1) are to be made within 14
days of the discovery conference.

2. Rule 34: Production of Documents, ESI, and Things

Under Rule 34 parties may request that other parties produce documents, electronically
stored information, or tangible things in their possession that fall within the scope of Rule
26(b). The rule reads as follows:

FRCP 34(a). Producing Documents, Electronically Stored Information, and

Tangible Things: In General.

REFER TO PG. 654 IN THE CASEBOOK

REFER TO PG. 82 IN THE BLUEBOOK

50
• The problem with the less focused document requests is that the responsive
material may be so voluminous that it will be difficult for the receiving party to
identify the truly relevant information that may be found therein.
• This is particularly so if the documents are produced “as they are kept in the usual
course of business” rather than being organized by reference to the categories in
the request as is permitted under Rule 34(b)(2)(E)(i).
• Once receipt of a document request, the responding party may either produce the
requested material or object on any applicable grounds such as relevance or
privilege.
• When disagreements arise, the parties must meet and attempt to resolve their
differences before either of them petitions the court for a forced resolution of the
matter.
• The dominance of electronically stored information (ESI) among the universe of
potentially discoverable material has brought two highly contentious issues to the
fore:
o (1)The exact form in which responding parties must produce ESI—such as
in printed-out hard copies, in native format, or in a converted, easier to
use format of some sort; and
o (2) whether metadata—data about data—that accompanies ESI must be
produced.
• The requesting party may want the information produced in its native format or in
Microsoft Word format so that it is completely word searchable, a feature that will
facilitate document review.
• Conversely, the producing party may prefer production in a PDF or TIFF format
because those formats are less subject to manipulation or can make word searches
more difficult or impossible.
• Parties are explicitly instructed to discuss “any issues about disclosure or
discovery of electronically stored information, including the form or forms in
which it should be produced. Any agreement regarding form of production may
be incorporated to the court’s scheduling order under Rule 16(b).

• If no agreement regarding form of production is reached, then requesting parties

may specify the form in which they would like ESI to be produced. FED. R. CIV.
P. 34(b). The responding party may object to the requested form of producing ESI
and must then specify the form that it intends to use. Even if the requesting party
does not specify form of production, the responding party must indicate the form
in which it intends to produce the information. Either party who is dissatisfied
with the form of production requested or supplied may petition the court for an
order resolving the matter.

• Finally, if there is no agreement and no court order on the issue, the rule sets forth
a default standard:

FRCP 34(b)(2)(E)(ii). Production of Documents, Electronically Stored

Information, and Tangible Things: Procedure.

51
 REFER TO PG. 656 IN THE CASEBOOK
RFER TO PG. 82 IN THE BLUEBOOK

b. Metadata

• The other contentious issue surrounding the production of ESI is whether parties
have an obligation to produce such information with its metadata intact.

• The Committee Note to Rule 26(f) defines metadata as “information describing

the history, tracking, or management of an electronic file” and indicates it “is
usually not apparent to the reader or viewer a hard copy or a screen image.”
Committee Note, FED. R. CIV. P. 26(f).

• An example of metadata would be the information that appears when a Microsoft

Word user open the “Properties” dialog box for a document. In that box one can
find information such as the date on which the document was created, when it was
last modified, printed, or accessed, and the identity of the author of the document.

• Metadata can prove quite useful in tracking the manipulation of documents, which
may be a concern in instances where there is some question as to the authenticity
or integrity of documents that have been produced.

• A responding party has an obligation to produce the metadata if it meets the

relevance standard of Rule 26(b)(1), which one can easily imagine being the case
in many instances given the type of information that metadata can reveal.

• If the information reported by metadata is privileged, it is not discoverable. That

means that counsel will have to be sure to review metadata for privilege before
producing ESI with its metadata intact.

• Further, if metadata exists, but for technical reasons is “not reasonably accessible”
or is unduly burdensome to retrieve and produce under the terms of Rule 26(b)(2),
the court may conclude that a responding party need not produce the information.

• The critical point to remember here is that these are not determinations that
responding parties should make on their own without informing their adversaries
and the court to the extent a party feels that metadata should not be produced, it
must make that assertion and either convince the requesting party or the court to
agree

3. Rule 33: Interrogatories

• Under Rule 33 a party may send written questions or interrogatories that the
receiving party must answer “under oath.” FED. R. CIV. P. 33(a)(1), 33(b)(3).

52
• Parties issuing interrogatories fall within the scope of discovery as outlined in
Rule 26(b)(1) and can seek opinions, contentions, or even the application of law
to facts. FED R. CIV. P. 33(a)(2).

• The parties are limited to 25 of these questions unless the court grants permission
to issue additional interrogatories. FED. R. CIV. P. 33(a)(1).

• Although it is relatively easy to craft interrogatories, it can be quite expensive and

burdensome to respond to them. To answer some questions fully and truthfully,
parties may have to undertake an extensive investigation and review of their own
internal files, which could take a significant amount of employer or attorney time.

• If responding to the interrogatory appears likely to be too burdensome, responding

parties may object on any ground applicable to other discovery requests such as
privilege, relevance, or undue burden under Rule 26(b)(2).

• However, Rule 33 also gives responding parties the option to permit the
questioning party to view the responding party’s business records to figure out the
answer’s for themselves:

FRCP 33(d). Interrogatories to Parties: Option to Produce Business Records

REFER TO PG. 659 IN THE CASEBOOK

REFER TO PG. 279 IN THE BLUEBOOK

• Subparagraph (1) of this provision was added in 1980 to prevent parties from
simply giving their adversaries access to mass of undifferentiated business records
without any guidance as to how the sought information might be found.

4. Rule 30: Oral Depositions

• Through oral depositions, parties may question, under oath, any person thought to
have testimony relevant to their dispute, without the court’s permission. FED. R.
CIV. P. 30(a)(1).
• These witnesses or deponents do not have to be parties to the action.
• The format for depositions mirrors the format of witness examinations during a
trial, except that no judge is present.
• The attorney conducting the deposition examines the deponent by asking a series
of prepared or extemporaneous questions.
• The deponent will typically have her own legal counsel representing her at the
deposition who may make objections to questions based either on the confusing
nature of the question or based on a view that the question delves into an area
protected by privilege, confidentiality, or some other similar ground. Objections
are also proper based on relevance.

53
• Given that no judge is present during the deposition, what should the
questioning attorney do in the event that a deponent refuses to answer a
question?
 The attorney may continue with the deposition and later seek an
order compelling a response from the court.
 Or, if the matter is vital to the attorney’s subsequent line of
questioning, the attorney may suspend the deposition and seek the
court’s intervention.
• Once the attorney is finished examining the deponent, the deponent’s attorney
may then question the deponent as well.
• Deponents are limited to one day of seven hours unless the court allows additional
time. FED. R. CIV. P. 30(d)(1).
• A stenographic record is kept of the deposition and upon its completion, a
transcript is produced which the deponent or a party may request a copy of to
review and correct if necessary. FED. R. CIV. P. 30(e).

5. Rule 35: Physical or Medical Examination

• In actions where a party makes his own physical or mental health an issue, the
need may arise for the opposing party to conduct its own examination of the
physical or mental condition of that person

• Under what circumstances should parties be permitted to compel this type of

discovery? Rule 35 addresses the issue:

FRCP 35. Physical and Mental Examinations: Order for an Examination

REFER TO PG. 661 IN THE CASEBOOK

REFER TO PG. 84 IN THE BLUEBOOK

• Under the terms of the rule, the critical requirements are that the person to be
examined must be a “party” (or someone under the control of a party), that party’s
mental or physical condition must be “in controversy,” and the party seeking the
examination must demonstrate “good cause” to justify the examination.
• How can requesting parties demonstrate “good cause” and what puts a
party’s physical or mental condition “in controversy”?
o The Supreme Court addressed these questions in Schlagenhauf v. Holder,
a case involving the alleged negligence of a bus driver involved in an
accident, as follows:
 Mental and physical examinations are only to be ordered upon
a discriminating application by the district judge of the
limitations prescribed by [Rule 35]
• After examinations are conducted under the rule, the examined party may request
a copy of a detailed written report of the examiner’s findings. FED. R. CIV. P.
35(b)(1).

54
 • Conversely, if the examined party requests such a report, the party that caused the
Rule 35 examination to take place is entitled to receive a copy of the report
arising from any similar examination the examined party has been subjected to for
the same condition.
• Further, if the party examined under Rule 35 requests a copy of the examiner’s
report, that party waives any doctor-patient privilege “concerning testimony about
all examinations of the same condition” FED. R. CIV.P. 35(b)(4).

D. Discovery Disputes

1. Discovery Offenses and Sanctions

• The paradigm discovery dispute is that a requesting party wants certain

information to be produced and the responding party refuses to produce it, the
refusal might be justified based on privilege, work product protection, or a
belief that the information is not reasonably accessible.
• The refusal also might be unjustified either because the responding party
erroneously believes that the material is protected or not discoverable, or
worse, because party is trying to hide the information from its opponent.
• When parties are at loggerheads over a discovery issue, the rules provide that
they must meet and confer to try to negotiate a resolution of the dispute before
they can seek intervention from the court. FED. R. CIV. P. 26(c); 37 (a)(2)
(A); 37(d).

Orders to Compel and Protective Orders

FRCP 37. Failure to Make Disclosures or to Cooperate in Discovery; Sanctions

REFER TO PG. 664 IN THE CASEBOOK

REFER TO PG. 86 IN BLUEBOOK

• Motions to compel are particularly appropriate when the requesting party feels
that the responding party is not legitimately claiming protection for the withheld
material or if the responding party has dragged its feet in complying with the
production request and appears to be stonewalling rather than making a good faith
effort to produce the requested material

• Alternatively, the responding party who feels it should not be required to comply
with a particular discovery request and disclose certain information may file a
motion seeking a protective order under Rule 26(c):

FRCP. 26. Protective Orders

REFER TO PG. 665 IN THE CASEBOOK

REFER TO PG. 61 IN THE BLUEBOOK

55
 • Protective orders are particularly useful to protect responding parties against
abusive discovery requests, such as those that seek a large amount of unnecessary
information that it would cost the responding party great expense to produce.
• In our system, we follow the “American Rule”, which means that litigants are
responsible for their own litigation expenses, including the cost of producing
information in response to discovery requests.
• As a result of this rule, however, requesting parties are able to inflict costs on
their adversaries through discovery requests.
• Unfortunately, advocates have been known to take advantage of this ability to
make discovery requests more for the purpose of inflicting cost and bringing
about delay than for the value the sought information would actually provide the
party’s claim or defenses. Protective orders give responding parties a way to
combat this practice.

Discovery Certification Requirement

In an effort to discourage abusive discovery practices, parties requesting or producing

information must certify that their disclosures is complete. FED. R. CIV. P. 26(g)(1), and
that the request or response is consistent with the following provision:

FRCP 26(g)(1). Signing Disclosures and Discovery Requests, Responses, and

Objections.

REFER TO PG. 666 IN THE CASEBOOK

REFER TO PG. 69 IN THE BLUEBOOK

This certification requirement is akin to that imposed by Rule 11 (recall that Rule 11 is
inapplicable to discovery). Parties found to have violated the rule may be sanctioned as
deemed appropriate by the court

Sanctions. In most instances, it is knowledge of the court’s authority to impose sanctions

that compels compliance with the parties’ discovery obligations. When parties persist in
non-compliance, however, the courts can and have imposed a wide range of sanctions on
those parties, some of which are set forth in Table 8.2.

Table 8.2

Sanction Rule
An order that designated facts shall be Rule 37(b)(2)(A)(i)
taken to be established for purposes of the
action
An order preventing the disobedient party Rule 37(b)(2)(A)(ii)
from introducing certain documents, or
supporting or opposing designated claims
or defenses
The entry of dismissal or default Rule 37(b)(2)(A)(v) & (vi)

56
The striking of the pleadings of the Rule 37(b)(2)(A)(iii)
offending party
The award of reasonable expenses, Rule 37(b)(2)(C)
including attorney’s fees

• These sanctions, which are authorized under various portions of Rule 37, are not
an exhaustive list. Rule 37 itself states that courts are empowered to impose
“further just orders.” FED. R. CIV. P. 37(b)(2).
• Further, courts have inherent power to impose sanctions for discovery abuses,
authority that supplements courts’ sanctioning power under Rule 37.

Poole ex rel. Elliot v. Textron

• Rules pertinent in this case:

o FRCP 37:
o FRCP 37(a)(4)(A):
o FRCP 26(g):
o FRCP 26(g)(3):
• The Supreme Court has cautioned restraint in the exercise of he inherent powers
“because of their very potency,” Chambers and “because inherent powers are
shielded from direct democratic controls.” Roadway Express, Inc. v. Piper.
• Accordingly, whether default judgment or some lesser punitive sanction, such as
an award of attorney’s fees, is imposed under the inherent powers, courts require
evidence of misconduct, usually characterized as “contumacious,” “fraudulent” or
“bad faith,” with some courts requiring that the misconduct be shown by “clear
and convincing” evidence
• An award of attorney’s fees appear to be the sanction most commonly imposed in
reported decisions
• Sanctions are to be awarded “against parties or persons unjustifiably resisting
discovery.” Advisory Committee Notes to the 1970 Amendments to Fed. R. Civ.
P. 37.
o Rule 37 sanctions must be applied diligently both “to penalize those
whose conduct may be deemed to warrant such a sanction, and [and] to
deter those who might be tempted to such conduct in the absence of such a
deterrent.” Nat’l Hockey League v. Metro. Hockey Club
• Rule 26(g) is designed to curb discovery abuse by explicitly encouraging
imposition of sanctions.” Advisory Committee Notes to 1983 Amendments to
Fed. R. Civ. P. 26.
• However, in the absence of a bad faith finding, the Court is not justified in
awarding sanctions beyond the relief afforded by Rule 37(a)(4)(A) and Rule
26(g), and certainly not entry of default judgment.
o When there is a lack of bad faith: “The remedy available to the Court is
thus limited to an award of the “reasonable expenses incurred in making
the motion, including attorney’s fees.” Fed. R. Civ. P.37(a)(4)(A).

57
 • Consequences of Textron’s actions:
o Depositions are taken without benefit of later received discovery
o Later received discovery might have eliminated whole areas of inquiry or
suggested entirely different questioning at deposition.
o A lawyer is faced with the dilemma of whether to spend the time and
expense to seek another deposition session or “to make do.”
o Belatedly received information may impact an expert’s opinion, requiring
additional analysis and a further report and even a further deposition.
• In complex litigation cases are shaped, if not won or lost, in the discovery phase.

Points for Discussion

In determining sanctions Table 8.2 (from previous) does not come into play
until a party has violated court order (the court may use the inherent powers
however). In this case default judgment was not appropriate because Textron
complied with court order. Because there was no bad faith, the court could
not use inherent powers.

a. Over-Discovery and Stonewalling

• The vast majority of cases do not proceed to trial but rather are resolved through
pretrial dismissals, summary judgment, or through settlement.
• From the time a case is filed through its resolution by one these means, time and
effort is expended principally on a lengthy and costly discovery process.
Tactics used during discovery that promote adversarial nature of litigation:

• Often this can become a war of attrition where some defendants prefer an
extended pretrial phase during which maximum cost is inflicted on their
opponents, all in the hopes of nudging them towards giving up on a trial in favor
of settling the matter
• Over discovery: making the discovery requests that fall within the scope of
discovery but solicit material that is not really of any great interest to the
requesting party. Because the responding party must pay for the cost of locating,
reviewing, and producing material to the requesting party, its expenses can
quickly become prohibitive in relation to the value of their claim.

• Stonewalling: delaying the production of responsive material as long as possible

without attracting the ire of the court

b. Dump-Truck Tactics

• A related approach to causing delay, expense, and general aggravation for

one’s adversaries through over-discovery or stonewalling is to product

58
 massive amounts of information in response to a discovery request with
critical or even harmful information buried deep within it.
• The idea is that the requesting party will have to spend large amounts of
money paying attorneys to review he material carefully, a task that will take a
long time and one that the producing party might hope will be insufficiently
diligent to locate the problematic document,
• To avoid getting hit with dump-truck tactics, carefully tailor your discovery
request so that you are only getting information that you are truly interested in
to build your case. Be careful, however, to avoid being too narrow, if you fail
to ask for something important, you won’t get it.

2. Preservation Obligations and Spoliations

• In order for discovery to work, discoverable information in the possession of he

parties must be available and preserved for the litigation.
• Clearly if parties were free to destroy harmful documents once litigation initiated,
that would frustrate the effort of the court to resolve the dispute on the merits.
• To forestall this possibility, the courts have devised a preservation obligation that
binds parties once they have notice of a dispute that is in litigation or likely to
result in litigation.

Zubulake v. UBS Warburg LLC (“Zubulake V”)

• Litigation hold: is an instruction from one’s own legal counsel to suspend any
processes for the destruction of information relevant to a prospective lawsuit and
to preserve all such information at least until a final resolution of the dispute.
• The duty to preserve relevant evidence is a common law duty that arises when the
party has notice that the evidence is relevant to litigation or when a party should
have known that the evidence may be relevant to future litigation. Fujitsu Ltd. v.
Federal Express Corp.
• Spoliation is “the destruction or significant alteration of evidence, or the failure to
preserve property for another’s use as evidence in pending or reasonably
foreseeable litigation.” West v. Goodyear Tire & Rubber Co.
• “The determination of an appropriate sanction for spoliation, if any, is confined to
the sound discretion of the trial judge, and is assessed on a case-by-case basis.”
• The authority to sanction litigants for spoliation arises jointly under the FRCP and
the court’s inherent powers.

• Adverse Inference Instruction: an instruction to the jury to conclude that

missing evidence would have been detrimental to the case of the party who was
responsible for producing the evidence.
o The spoliation of evidence germane “to proof of an issue at trial can
support an inference that the evidence would have been unfavorable to the
party responsible for its destruction.

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 o A party seeking an adverse inference instruction (or other sanctions) based
on the spoliation of evidence must establish the following three elements:
 That the party having control over the evidence had an obligation
to preserve it at the time it was destroyed.
 That the records were destroyed with a “culpable state of mind”
and
• A “culpable state of mind” for purposes of a spoliation
inference includes ordinary negligence.
 That the destroyed evidence was “relevant” to the party’s claim or
defense such that a reasonable trier of fact could find that it would
support that claim or defense
• When evidence is destroyed in bad faith (i.e.,
intentionally or willfully), that fact alone is sufficient to
demonstrate relevance. By contrast, when the
destruction is negligent, relevance must be proven by
the party seeking the sanctions.
• The concept of “relevance” encompasses not only the
ordinary meaning of the term, but also that the
destroyed evidence would have been favorable to the
movant.

• “This corroboration requirement is even more

necessary where the destruction was merely negligent,
since in those cases it cannot be inferred from the
conduct of the spoliator that the evidence would even
have been harmful to him.”
• This is equally true in cases of gross negligence or
recklessness; only in the case of willful spoliation does
the degree of culpability give rise to a presumption of
the relevance of he documents destroyed.

A. Counsel’s Duty to Monitor Compliance

• Once a party reasonably anticipates litigation, it must suspend its routine

document retention/destruction policy and put in place a “litigation hold” to
ensure the preservation of relevant documents.
• As a general rule, that litigation hold does not apply to inaccessible backup tapes
(e.g., those typically maintained solely for the purpose of disaster recovery),
which may continue to be recycled on the schedule set forth in the company’s
policy.
• On the other hand, if backup tapes are accessible (i.e. actively used for
information retrieval), then such tapes would likely be subject to the litigation
hold.

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• Counsel must oversee compliance with litigation hold, monitoring the party’s
efforts to retain and produce the relevant documents. Proper communication
between a party and her lawyer will ensure:
 That all relevant information (or at least all sources of relevant
information) is discovered.
 That relevant information is retained on a continuing basis; and
 That relevant non-privileged material is produced to the opposing
party

Counsel’s Duty to Locate Relevant Information

• Once a “litigation hold” is in place, a party and her counsel must make certain that
all sources of potentially relevant information are identified and placed “on hold”.
• To do this, counsel must become fully familiar with her client’s document
retention policies, as well as the client’s data retention architecture. This will
invariably involve speaking with information technology personnel, who can
explain system-wide backup procedures and he actual implementation of the
firm’s recycling policy.
• It will also involve communicating with the “key players” in the litigation, in
order to understand how they stored information.
• It is not sufficient to notify all employees of a litigation hold and expect that
the party will then retain and produce all relevant information. Counsel
must take affirmative steps to monitor compliance so that all sources of
discoverable information are identified and searched.
Counsel’s Continuing Duty to Ensure Preservation

• Once a party and her counsel have identified all the of sources of potentially
relevant information, they are under a duty to retain that information and to
produce information responsive to the opposing party’s requests.
• There are thus a number of steps that counsel should take to ensure compliance
with preservation obligation:
 First, counsel must issue a litigation hold at the outset of litigation
or whenever litigation is reasonably anticipated. The litigation hold
should be periodically re-issued so the new employees are aware of
it, and so that it is fresh in the minds of all employees.

 Second, counsel should communicate directly with the “key

players”.Because these “key players” are the “employees likely to
have relevant information,” it is particularly important that the
preservation duty be communicated clearly to them. As with the
litigation hold, the key players should be periodically reminded
that the preservation duty is still in place.

 Finally, counsel should instruct all employees to produce

electronic copies of their relevant active files. Counsel must also

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 make sure that all backup media which the party is required to
retain is identified and stored in a safe place. In cases involving a
small number of relevant backup tapes, counsel might be advised
to take physical possession of backup tapes. In other cases, it might
make sense for relevant backup tapes to be segregated and placed
in storage.

B. Remedy

• Sanctions: In this case the sanctions were put in place to restore Zubulake to the
position that she would have been in had UBS faithfully discharged its discovery
obligations.
o Adverse inference instruction
o Restore and produce relevant documents
o UBS ordered to pay the costs of any depositions or re-depositions required
by the late production of documents
o Pay for all “reasonable expenses, including attorney’s fees

Phoenix Four, Inc. v. Strategic Resources Corp.

• A court has the authority to impose sanctions on a party for spoliation and other
discovery misconduct under its inherent power to manage its own affairs or under
Rule 37 of the FRCP.
• Where the alleged discovery misconduct consists of the non-production of
evidence, a district court has broad discretion to fashion appropriate sanctions on
a case-by-case basis.
• The sanctions imposed should serve the threefold purposes of deterring parties
from engaging in spoliation, placing the risk of an erroneous judgment on the
party who wrongfully created the risk, and restoring the prejudiced party to the
position it would have been in had the misconduct not occurred.
• An adverse inference instruction is a severe sanction that often has the effect of
ending litigation because “it is too difficult a hurdle for the spoliator to
overcome.” Zubulake IV
• 37(c) provides backdoor availability to default judgment 37(b)

Points for Discussion

a. The Common Law Duty to Preserve & Spoliation

• The duty to preserve information because it is potentially relevant to pending or
future litigation is a common law duty that courts have devised in aid of the need
to encourage litigation to retain material that their adversaries will have a right to
discover as the case unfolds.
• A breach of this duty is referred to as spoliation. As noted in Zubulake V, this duty
attaches once a party receives notice of a dispute or can reasonably anticipate
future litigation.

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 • In Zubulake IV the court determined that the “trigger date” for UBS’s duty to
preserve was April 1, 2001—four months before Zubulake filed her EEOC
complaint—because her emails showed and deposition testimony confirmed that
in April 1, 2001 Zubulake’s co-workers were concerned about the possibility that
Zubulake might sue.

b. Statutory Duties to Preserve

• In addition to the common law duty to preserve, many statutes and regularly
impose legal obligations to preserve certain documents or materials.
• Violations of such statutory duties to preserve may carry their own penalties
under their respective statutes
• Some courts have held that violation of statutory duties give rise to an inference
of spoliation.
• Attorney may be sanctioned if counsel does not make the company suspend
deleting operations
• The better view seems to be that a breach of a statute or rule-based duty to
preserve may only be the basis for a spoliation finding when “the party seeking
the inference is a member of the general class of persons that the regulatory
agency sought to protect in promulgating the rule.” Byrnie v. Town of Cromwell.

c. Sanctions for Spoliation

• Courts have a wide array of sanctions at their disposal when it comes to
punishing parties for spoliating evidence. Penalties can range from monetary
sanctions to an adverse inference instruction, to the dismissal of the party’s
case and entry of judgment against the party.

d. The “Safe Harbor” Provision of Rule 37(f)

The Federal Rules were amended in 2006 to provide some measure of protection for
litigants who inadvertently destroy electronically stored information. Specifically,
subdivision (f) was added to Rule 37 and reads as follows:
FRCP 37(e) Failure to Provide Electronically Stored Information

REFER TO PG. 699 IN THE CASEBOOK

REFER TO PG. 90 IN THE BLUEBOOK

• Under this new provision, when ESI is destroyed due to “the routine, good
faith operation of an electronic information system,” courts may not impose
rule-based sanctions absent “exceptional circumstances.”
• Observers have referred to this as a “safe harbor” provision because it
provides protections against rule-based sanctions for spoliation if he
destruction occurred accidentally as a result of the regular operations of an
electronic information system.
• Two clear questions arise:
o (1) what is the routine good-faith operation of an electronic
information system and

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 “routine operation”: the alteration and overwriting of
information, often without the operator’s specific direction or
awareness, a feature with no direct counterpart in hard-copy
documents. Advisory Committee Notes to 2006 Amendment to
Rule 37(e)
 “good faith”: “Good faith in the routine operation of an
information system may involve a party’s intervention to
modify or suspend certain features of that routine operation to
prevent the loss of information, if that information is subject to
a preservation obligation.
• The good faith requirement of Rule 37(f) , means that a
party is not permitted to exploit the routine operation of
an information system to thwart discovery obligation by
allowing that operation to continue in order to destroy
specific stored information that it is required to
preserve.
• Among the factors that bear on a party’s good faith in
the routine operation of an information system are the
steps the party took to comply with a court order in the
case or party agreement requiring preservation of
specific ESI
o (2) what are the exceptional circumstances

e. Document Retention Policies

• Properly crafted retention policies can include such instruction but the critical
component is having a strategy for suspending such automated destruction
processes when the duty to preserve based on anticipated litigation arises.
• Demonstrating good faith effort to suspend such processes will go a long way
toward avoiding sanctions and benefiting from the safe harbor provision of Rule
37(f).

CHAPTER NINE: Disposition without Trial

• Once a lawsuit is initiated, both plaintiffs and defendants are under an
obligation to prosecute and defend the case, meaning that defendants must
diligently respond to the complaint and plaintiffs must move forward with the
development of their respective cases and pursue an ultimate resolution of
their claims by the court.

• When either side fails to do its part—either by failing to answer a complaint

as a defendant or failing to prosecute one’s claims as a plaintiff—the Federal
Rules provide for a way to terminate the action against the party who has
dropped the ball

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 1. Default & Default Judgment

• After the plaintiff files its complaint, the defendant is then obliged to respond to
the complaint in some way. The defendant either can file an answer raising
various defenses and admitting or denying the allegations of the complaint. FED.
R. CIV. P. 7(a) & 8(b), or the defendant may simply raise certain objections by
motion—such as a motion to dismiss for lack of personal jurisdiction or improper
venue—before filing an answer to the complaint. FED. R. CIV. P. 12(b).
• After being served with the summons and complaint, the defendant then has 20
days to respond in whichever way it intends, FED. R. CIV. P. 12(a)(1)(A), unless
it has waived formal service, in which case the defendant may respond within 60
days. FED. R. CIV. P. 4(d)(3).
• Courts do not favor default judgment because courts want to decide the case in the
merits. However default judgment can be entered against “contumacious” parties
• Rule 55 addresses when the defendant fails to respond within the prescribed time:

FRCP 55. Default; Default Judgment

REFER TO PG. 704 IN THE CASEBOOK

REFER TO PG. 162 IN THE BLUEBOOK

Points for Discussion

• This rule sets up a two-stage process.

o First, once the defendant fails to plead as required by the rules or fails to
otherwise defend itself via motion, the opposing party may bring that fact
to the attention of the court clerk and seek the clerk’s entry of the
defendant’s “default.”
o An entry of default is distinct from the second step in this process, a
default judgment. After the clerk has entered a default, the opposing party
may then seek a default judgment from the court
• In cases where the defaulting party has made an “appearance” in the case—for
example, by filing a preliminary motion but subsequently failing to file its
required pleading in response to the complaint—the court must notify that party at
least seven days in advance of a hearing on the opposing party’s application for
default judgment.
• The defendant may then appear at that hearing and raise arguments demonstrating
why the Court should not enter a default judgment against it.
• Courts generally disfavor default judgments and therefore advocates probably
should not be too overzealous in pursuing them.
• In some cases the failure to meet a required response deadline does not suffice for
an entry of default. Goodwin v. Libbey Glass, Inc.
• Has a defendant defaulted if it answers the complaint but fails to appear for
the trial?

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 o When Bass by his attorney filed a denial of the plaintiff’s case, neither the
clerk nor the judge could enter a default against him. The burden of proof
was put on the plaintiff in any trial. When neither Bass nor his attorney
appeared at the trial, no default was generated; the case was not confessed.
The plaintiff might aproceed, but he would have to prove his case.
o It is not the defendant’s job to carry the burden of proof—that is the
responsibility of the plaintiff. Case can be decided on the merits without
the defendant’s presence.

b. Setting aside an Entry of Default

• Rule 55(c) also indicates that a default judgment may be set aside, but in such a
case it may only be set aside in accordance with the standards of Rule 60(b), in
conjunction with the good cause factors generally used to evaluate motions to set
aside entries of default
• Under 60(b) courts are more willing to set aside default judgments than judgments
reached after some consideration of the merits, provided there is no evidence of
willful conduct on the part of the defendant.

d. Damages for Default Judgments

• In the event that a plaintiff successfully obtains a default judgment, Rule 54 (c)
limits her recovery to the amount prayed for in the complaint. FED. R. CIV. P.
54(c). (“A default judgment must not differ in kind from, or exceed in amount,
what is demanded in the pleadings”)

2. Involuntary & Voluntary Dismissals

Involuntary Dismissals:

• Rule 41(b) provides, “If the plaintiff fails to prosecute or to comply with these
rules or a court order, a defendant may move to dismiss the action or any claim
against it.” Fed. R. Civ. P. 41(b)
• Unless the court states otherwise in its order, the effect of an involuntary
dismissal is a dismissal with prejudice, meaning that he matter is deemed to have
been adjudicated on the merits. Fed. R. Civ. P. 41(b).
o Exception: “Unless the dismissal order states otherwise, a dismissal
under this subdivision (b) and any dismissal no under this rule—except
one for lack of jurisdiction, improper venue, or failure to join a party
under Rule 19—operates as an adjudication on the merits.”
• An adjudication on the merits is ordinarily entitled to res judicata preclusive
effect, which means that the plaintiff will not be able to refile the dismissed
claims—or in some cases related claims—in the future.
o Res judicata: prohibits lawsuits on any claims that were raised or could
have been raised in a prior action

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Voluntary Dismissals
• If a plaintiff determines that it is better to terminate the action rather than proceed,
the Federal Rules provide the plaintiff with the ability to dismiss its own case
voluntarily.
• The plaintiff may do this without the court’s permission or the consent of the
other parties in the suit if the plaintiff files a “notice of dismissal” prior to the
filing of an answer or a summary judgment motion, whichever comes first. FED.
R. CIV. P. 41(a)(1)(A)(i).
• After such time the plaintiff must obtain the consent of the parties, evidenced by a
“stipulation of dismissal,” Fed. R. Civ. P. 41(a)(1)(A)(ii), or the permission of the
court, Fed. R. Civ.P. 41(a)(2).
• “A decision whether to allow a party to voluntarily dismiss a case rests upon the
sound discretion of the court. In exercising that discretion, a court should consider
factors such as whether the party has presented a proper explanation for its desire
to dismiss, whether a dismissal would result in a waste of judicial time and effort,
and whether a dismissal will prejudice the defendants.” Hamm v. Rhone-Poulenc
Rorer Pharm.
• Before an answer or summary judgment motion is filed or with the consent of all
the parties, a plaintiff may voluntarily dismiss the case without the court’s
permission, for any reason. The plaintiff only must justify the dismissal in the
event that she requires the court’s approval.
• Unlike involuntary dismissals, voluntary dismissals under Rule 41(a) are without
prejudice (unless otherwise stated by the court), meaning that he plaintiff is free to
pursue the claim again in the future. Fed. R. Civ. P. 4(a)(1)
• There is an important caveat, however: the plaintiff may only voluntarily dismiss
its case under 41(a)(1) without prejudice once. A subsequent voluntary dismissal
will result in a dismissal with prejudice, which—as was the case for involuntary
dismissals—operates as an adjudication on the merits entitled to res judicata
effect.
• Rule 41(d) provides courts with the authority to impose costs on plaintiffs under
such circumstances: “If a plaintiff who previously dismissed an action in any
court files an action based on or including the same claim against the same
defendant, the court: (1) may order the plaintiff to pay all or part of the costs of
that previous action; and (2) may stay the proceedings until the plaintiff has
complied.” Fed. R. Civ. P. 41(d).

C. SUMMARY JUDGMENT

• Summary judgment is the means by which courts dispose of claims that plaintiffs
cannot prove. It also the vehicle through which courts may hand a pretrial victory
to plaintiffs having claims that defendants cannot refute.
• In federal system, the process for seeking and the standard for granting summary
judgment are set forth in Rule 56:

FRCP 56. Summary Judgment

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 REFER TO PG. 745
REFER TO PG. 110
• The main purpose of a trial is to resolve factual disputes between the parties,
something that is typically done by a jury. If the court is able to determine that
there is “no genuine issue as to any material fact,” there is no factual for a jury to
resolve, meaning that a trial would be pointless.
• In the absence of any genuine factual dispute, resolution of he action becomes
simply a matter of applying the law to the facts, something that the court itself
may do without the aid of the jury.
• Take Note: To understand these questions regarding the movant’s showing and
the respondent’s burden, one must understand the concept of burden of
production. The party asserting a claim has the burden of coming forward with
evidence sufficient to support a finding in that party’s favor.
 When the opposing party makes a summary judgment motion,
the question is what information, if any, should the opposing
party have to produce to establish its entitlement to summary
judgment?
• Either plaintiffs or defendants may seek summary judgment if they believe that
there is no genuine issue of material fact that the law entitles them to judgment as
a matter of law.
• Adickes v. S.H. Kress & Co.:

o …the responding party has the burden of showing the absence of a

genuine issue as to any material fact, and for these purposes the material it
lodged must be viewed in the light most favorable to the opposing party.
o Respondent (Kress) did not carry its burden because of its failure to
foreclose the possibility that there was a policeman in the Kress store
while the petitioner was awaiting service, and that this policeman reached
an understanding with some Kress employee that petitioner not be served.
o Given these unexplained gaps in the materials submitted by respondent,
we conclude that respondent failed to fulfill its initial burden of
demonstrating what is a critical element in this aspect of the case—that
there was no policeman in the store(respondent produced no evidence that
would justify grant of summary judgment)
• Because respondent did not meet its initial burden of
establishing the absence of a policeman in the store,
petitioner here was not required to come forward with
suitable opposing affidavits
• Respondent would have carried its burden if it had, for
example, submitted affidavits from the policemen stating
that they were not in the store at that time
• If the respondent had met its burden, Rule 56(e) would then
have required petitioner to have done more than simply rely
on the contrary allegation in her complaint. To have
avoided conceding this fact for purposes of summary

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 judgment, petitioner would have had to come forward with
evidence rebutting petitioner’s assertion that there was no
genuine issue of material fact.

Celotex Corp. v. Catrett

• Rule 56(c) mandates the entry of summary judgment, after adequate time for
discovery and upon motion, against a party who fails to make a showing sufficient
to establish the existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial
• A party seeking summary judgment always bears the initial responsibility of
informing the district court of the basis for its motion, and identifying those
portions of “the pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any,” which it believes demonstrate the
absence of a genuine issue of material fact.
• Rule 56(a) and (b) provides that claimants and defendants, respectively, may
move for summary judgment “with or without supporting affidavits”. Regardless
of whether the moving party accompanies its summary judgment motion with
affidavits, the motion may, and should, be granted so long as whatever is before
the district court demonstrates that the standard for the entry of summary
judgment, as set forth in Rule 56(c), is satisfied.

• One of the principal purposes of the summary judgment rule is to isolate and
dispose of factually unsupported claims or defenses, and we think it should be
interpreted in a way that allows it to accomplish this purpose.

• Rule 56(e) therefore requires the nonmoving party to go beyond the pleadings and
by her own affidavits, or by the “depositions, answers to interrogatories, and
admissions on file,” designate “specific facts showing that there is a genuine issue
for trial.”

• Rule 56(e) permits a proper summary judgment motion to be opposed by any of

the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings
themselves, and it is from this list that one would normally expect the nonmoving
party to make the showing to which we have referred.

• Instead, as we have explained, the burden on the moving party may be discharged
by “showing”—that is, pointing out to the district court—that there is an absence
of evidence to support the nonmoving party’s case.

• Any potential problem with such premature motions can be adequately dealt with
under Rule 56(f), which allows a summary judgment motion to be denied, or the
hearing on the motion to be continued, if the nonmoving party has not had an
opportunity to make full discovery.

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• Summary judgment procedure is properly regarded not as a disfavored procedural
shortcut, but rather as an integral part of the Federal Rules as a whole, which are
designed “to secure the just, speedy and inexpensive determination of every
action.”

Justice White Concurrence

• More than conclusory statements to meet the burden of the Rule 56. However
Justice White does not explain what that “more” is

Justice Brennan Dissent

• Summary judgment has two distinct components: an initial burden of production,

which shifts to the nonmoving party if satisfied by the moving party; and an
ultimate burden of persuasion, which always remains on the moving party

• The party moving for summary judgment may satisfy Rule 56’s burden of
production in either of two ways:

o First, the moving party may submit affirmative evidence that negates an
essential element of the nonmoving party’s claim.
o Second, the moving party may demonstrate to the Court that the
nonmoving party’s evidence is insufficient to establish an essential
element of the nonmoving party’s claim.
• If the nonmoving party cannot muster sufficient evidence to make out its claim, a
trial would be useless and the moving party is entitled to summary judgment as a
matter of law.

• A party who moves for summary judgment on the ground that the nonmoving
party has no evidence must affirmatively show the absence of evidence in the
record.

o This may require the moving party to depose the nonmoving party’s
witnesses or to establish the inadequacy of documentary evidence. If there
is literally no evidence in the record, the moving party may demonstrate
this by reviewing for the court the admissions, interrogatories, and
other exchanges between the parties that are in the record.

o Either way, however, the moving party must affirmatively demonstrate

that there is no evidence in the record to support a judgment for the
nonmoving party.

o If the moving party has not fully discharged this initial burden of
production, its motion for summary judgment must be denied, and the
Court need to not consider whether the moving party has met its ultimate
burden of persuasion

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 • Accordingly, the nonmoving party may defeat a motion for summary judgment
that asserts that the nonmoving party has no evidence by calling the Court’s
attention to supporting evidence already in the record that was overlooked or
ignored by the moving party.
o In that event, the moving party must respond by making an attempt to
demonstrate the inadequacy of this evidence, for it is only by attacking all
the record evidence allegedly supporting the nonmoving party that a party
seeking summary judgment satisfies Rule 56’s burden of production.

Points for Discussion

What is the obligation of the moving party?

• Properly make the motion

• Support the motion

a. Definitions

material fact: effects the outcome of the case

genuine issue present: when a reasonable jury can reach a differing conclusions
concerning that fact

b. The Celotex Trilogy

Anderson v. Liberty Lobby

• In Anderson, the Court decided that the substantive evidentiary standard of proof
applicable to a matter at trial was the standard which a summary judgment motion
should be judged.
o Prima Facie Evidence: Sufficient evidence that, when standing alone,
supports a claim for the party asserting it
o Preponderance of Evidence: Convincing the fact finder that, given
competing evidence, it is more likely than not that the facts alleged by the
party bearing the burden are true
o Clear and Convincing Evidence: Evidence that the thing to be proved is
highly probable or reasonably certain
o Beyond a Reasonable Doubt: the most stringent standard, used in
criminal cases, requiring that there can be no doubt about the outcome; a
likelihood or substantial likelihood that the outcome is correct is not
enough.
• There is no genuine issue if the evidence presented in the opposing affidavits is of
insufficient caliber or quantity to allow a rational finder of fact to find actual
malice by clear and convincing evidence.
• That there is enough evidence that a reasonable jury would
rule in favor of the non-moving party at trial

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 • If the jury can come at on one side of the other summary
judgment cannot be granted
• The question here is whether a jury could reasonably find either that the plaintiff
proved his case by the quality and quantity of evidence required by the governing
law or that he did not.
• If the person opposing summary judgment presents
insufficient affidavits to rebut the motion, such that a jury
would not find a genuine issue, motion summary judgment
granted.

Matsushita Elec. Indus. Co. v. Zenith Radio Corp.

• To survive a motion for summary judgment or for a directed verdict, a plaintiff…

must present evidence “that tends to exclude the possibility” that the alleged
conspirators acted independently. Respondents in this case, in other words, must
show that the inference of conspiracy is reasonable in light of the competing
inferences of independent action or collusive action that could not have harmed
respondents
• The absence of any plausible motive to engage in the conduct charged is highly
relevant to whether a “genuine issue for trial” exists within the meaning of Rule
56(e).
• Trial affidavit is no substitute for trial by jury which so long has been the
hallmark of “even handed justice.”

c. The Impact of the Celotex Trilogy

• Professor David Shapiro:

o “Each case, in addition to expressing a general view more favorable to
summary judgment than the Court had expressed in the past, laid aside
some specific shibboleths that had long affected summary judgment
practice, e.g., that the moving party (even one who did not have the
ultimate burden of proof) had to support its motion with evidence negating
the fact or facts to be proved; that summary judgment was to be avoided in
complex cases; that the faintest possibility that the opponent on summary
judgment might come up with sufficient evidence by the time of trial was
enough to warrant the denial of the motion; and that certain subjective
matters that may be especially hard for a party to prove (like the
adversary’s state of mind) are always inappropriate subjects for summary
judgment against that party.

Additional Points (In Class)

• 12(b)(6) motion and its relation to Rule 56 motion for summary judgment
o With a 12(b)(6) motion, the judge is assuming that everything in the
complaint is true (favorable to the plaintiff). Therefore, the motion is not
on the merits. However, with a summary judgment motion the case is
decided on the merits and facts are not assumed to be true.

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 o With a 12(b)(6) motion to dismiss the judge is just reviewing the
information in the pleadings, however with a Rule 56 motion for summary
judgment the court is looking at extrinsic evidence to decipher whether it
is necessary to go to trial.
o The motion is limited to what the pleadings state, when reviewing
sufficiency of the complaint.
o 12(c): allows expansion of scope (all of the pleadings considered)
o 12(d): allows the introduction of extrinsic evidence; moving for summary
judgment based on additional facts
o Rule 56: most cases are adjudicated at the summary judgment level

Chapter 10: Trials

3. The Role of the Jury
The jury is tasked with making findings of fact, while the judge is charged with
determining the law and instructing the jury on the law.

Markman v. Westview Instruments, Inc.

o “The Seventh Amendment provides that “in Suits at common law, where the
value in controversy shall exceed twenty dollars, the right of trial by jury shall be
preserved…”
o We said in Miller v. Fenton that when an issue “falls somewhere between a
pristine legal standard and a simple historical fact, the fact/law distinction at times
has turned on a determination that, a matter of the sound administration of justice,
one judicial actor is better positioned than another to decide the issue in question.”
o The construction of written instruments is one of those things that judges often do
and are likely to do better than jurors. The judge, from his training and discipline,
is more likely to give a proper interpretation to such instruments than a jury; and
he is, therefore, more likely to be right, in performing such a duty, than a jury can
be expected to be:
 Critical explanation or interpretation of a text or portion of a text
 Special occupation/special training/practice
o A jury’s capabilities are geared more towards evaluating demeanor, to sense the
“mainsprings of human conduct,” or to reflect community standards. These
capabilities are less significant than a trained ability to evaluate the overall
structure of a patent.

Uniformity

o The court also looked to the importance of uniformity in regards to who should be
charged with the question of construction. The court decided that uniformity
would, however, be ill served by submitting issues of document construction to
the juries.
o Treating interpretive issues as purely legal will promote (though it will not
guarantee) intrajurisdictional certainty through the application of precedent on

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 those questions not yet subject to interjurisdictional uniformity under the authority
of the single appeals court.

Points for Discussion

a. The Law/Fact Distinction

In the federal system, questions of fact are reserved for the jury

b. The Markman Court’s Analysis

The holding in Markman relies heavily upon the conclusion that judges are better suited
than juries to construe the meaning of terms in a patent.

5. The Phases of a Trial

o After the plaintiff rests, the defendant may seek the entry of judgment as a matter
of law in its favor if it feels that the plaintiff has failed to present sufficient
evidence to carry its burden of proof. FED. R. CIV. P. 50(a)(1).
o If that motion is rejected or not made, the defendant proceeds with the
presentation of its evidence in an effort to rebut the plaintiff’s case.
o After the defendant has presented its case, both parties may raise motions for
judgment as a matter of law.
o The judge instructs the jury on the law to be applied once all the facts are
presented to the jury.

B. Judicial Control of the Verdict

o If the evidence is insufficient to support a verdict in favor of one party, the

opposing party may move the court to enter judgment as a matter of law,
something that either preempts or reverses a jury’s verdict.
o If the case is to be submitted to the jury, the judge has some ability to control the
jury’s decision through the instructions to the jury and through special verdicts or
general verdicts with interrogatories.
o The judge also exercises control over the verdict through her ability to throw out
the jury’s verdict and order a new trial or grant relief from judgment under Rule
60.

1. Judgment as a Matter of Law

o At various points in the trial the Federal Rules permit either party to seek
judgment as a matter of law (“JMOL”) if they believe that their adversary has
failed to present evidence sufficient to meet their evidentiary burden of proof.

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 o If the court agrees with the movant, judgment in their favor is entered and,
depending upon the timing of the motion, the jury never gets the opportunity
to render a verdict or its previously rendered verdict is reversed.

o After a party has been heard on an issue—but before the matter is submitted to
the jury—if the court finds that a reasonable jury would not have a legally
sufficient evidentiary basis to find for the party on that issue, the court may
enter judgment against that party on the issue or grant a motion requesting the
same. After the jury returns its verdict, the court may only enter judgment as a
matter of law on a renewed motion for judgment made by a party who made
such a motion before the case went to the jury.

FRCP 50(a). Judgment as a Matter of Law in a Jury Trial

REFER TO PG. 822 IN THE CASEBOOK

REFER TO PG 102 IN THE BLUEBOOK

Reeves v. Sanderson Plumbing Products, Inc.

• Under Rule 50, a court should render judgment as a matter of law when “a party
has been fully heard on an issue and there is no legally sufficient evidentiary basis
for a reasonable jury to find for that party on that issue.” FED. R. CIV. P. 50(a).

• The standard for judgment as a matter of law, “mirrors” the standard for granting
summary judgment. It therefore follows that, in entertaining a motion for
judgment as a matter of law, the court should review all of the evidence in the
record.

• In doing so, however, the court must draw all reasonable inferences in favor of the
nonmoving party, and it may not make credibility determinations or weigh the
evidence.

• Credibility determinations, the weighing of the evidence, and the drawing of

legitimate inferences from the facts are jury functions not those of a judge. Thus,
although the court should review the record as a whole, it must disregard all
evidence favorable to the moving party that the jury is not required to believe.

• The court should give credence to the evidence favoring the nonmovant as well as
that “evidence supporting the moving party that is uncontradicted and
unimpeached, at least to the extent that that evidence comes from disinterested
witnesses.

Points for Discussion

a. In Class Notes

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 • If the judge allows a judgment as a matter of law motion and the case goes to
appellate court, reversing lower court remand for a new trial
• If a verdict is rendered and a party’s motion is granted, appellate court can
reinstate verdict

b. The Renewed Motion for Judgment as a Matter of Law

• An unsuccessful motion for judgment as a matter of law may be renewed after the
jury returns its verdict. Rule 50(b) permits the renewal of such motions:

FRCP 50(b). Judgment as a Matter of Law in a Jury Trial

REFER TO PG. 832 IN THE CASEBOOK

REFER TO PG. 102 IN THE BLUEBOOK

• Note the wording of the rule: it only speaks of permitting the movant to “renew”
its request for judgment as a matter of law. Thus, any post-verdict consideration
of a motion for judgment as a matter of law may only be on the basis of a
preverdict motion that has been renewed. No such motion may be made for the
first time after the verdict.
c. Timing of the Motion

• As Rule 50 states, “A motion for judgment as a matter of law may be made at any
time before the case is submitted to the jury. FED. R. CIV. P. 50(a)(2). When can
such motion be renewed?
 In 2006, Rule 50 was amended to permit a motion for
judgment as a matter of law to be renewed after the entry of
judgment so long as a motion had previously been made under
Rule 50(a), which may have been made at any time before the
case was submitted to the jury.

d. The Constitutionality of Entering Judgment as a Matter of Law

• In light of the Seventh Amendment right to a jury trial, how is it that courts
that are constitutionally permitted to take a case away from a jury by
preempting their decision with an entry of judgment as a matter of law?
 The Supreme Court felt that the practice was consistent with the
Seventh Amendment and thus affirmed its constitutionality in
Galloway v. United States.
• Does the entry of judgment as a matter of law post-verdict present any
difficulties under the Seventh Amendment?
 The second clause of the Seventh Amendment indicates that “no
fact tried by a jury, shall be otherwise re-examined in any Court of
the United States, than according to the rules of common law.
However, the Committee Note accompanying the revised rule
suggests, Rule 50(b)’s requirement of a motion for judgment as a
matter of law prior to submission of the case to the jury as a

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 prerequisite to the court’s consideration of the motion after the
verdict is seen to be necessary to the constitutionality of a post-
verdict entry of a judgment on the motion.
• Once the trial has commenced and there is a jury, the
fact that a judge can usurp the power of the jury
becomes a problem because constitutionally an
individual has the right to a jury.

e. Sua Sponte Entry of Judgment as a Matter of Law

Reread Rule 50(a) and Rule(b).

Unitherm Food Sys., Inc. v. Swift-Eckrich, Inc.

• FRCP 50 sets forth the procedural requirements for challenging the sufficiency of
the evidence in a civil jury trial and establishes two stages for such challenges—
prior to submission of the case to the jury, and after the verdict and entry of
judgment. Rule 50(a) allows a party to challenge the sufficiency of the evidence
prior to submission of the case to the jury, and authorizes the District Court to
grant such motions at the court’s discretion

• Rule 50(b), by contrast, sets forth the procedural requirements for renewing a
sufficiency of the evidence challenging after the jury verdict and entry of
judgment.

• “In absence of such a motion” an “appellate court is without power to direct the
District Court to enter judgment contrary to the one it had permitted to stand.

• A postverdict motion is necessary because “determination of whether a new trial

should be granted or a judgment entered under Rule 50(b) class for the judgment
in the first instance of the judge who saw and heard the witness and has the feel of
the case which no appellate printed transcript can impart.

• Moreover, the “requirement of a timely application for judgment after verdict is

not an idle motion” because it “is an essential part of the rule, firmly grounded in
principles of fairness.

• In Cone, this Court concluded that, Rule 50(b) permits the district court to
exercise its discretion to choose between ordering a new trial and entering
judgment…a party may only pursue on appeal a particular avenue of relief
available under Rule 50(b), namely entry of judgment or a new trial, when that
party has complied with the Rule’s filing requirements by requesting that
particular relief below.”

• A party is not entitled to pursue a new trial on appeal unless that party makes an
appropriate postverdict motion in the district court.

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• Cone, Globe Liquor, and Johnson unequivocally establish that he precise subject
matter of a party’s Rule 50(a) motion—namely, its entitlement to judgment as a
matter of law—cannot be appealed unless that motion is renewed pursuant to Rule
50(b).

• The respondent in this case did not seek to pursue on appeal the precise claim it
raised in its Rule 50(a) motion before the District Court—namely, its entitlement
to judgment as a matter of law. Rather, it seeks a new trial based on the legal
insufficiency of the evidence.

• But if as in Cone, Globe Liquor, and Johnson, a litigant that has failed to file a
Rule 50(a) motion—i.e., the entry of judgment—then surely respondent is
foreclosed from seeking a new trial, relief it did not and could not seek in its
preverdict motion. In short, respondent never sought a new trial before the District
Court, and thus forfeited its right to do so on appeal.

• While a district court is permitted to enter judgment as a matter of law when it

concludes that the evidence is legally insufficient, it is not required to do so. To
the contrary, the district courts are, if anything, encouraged to submit the case to
the jury, rather than granting such motions.

Points for Discussion

• The defendant Unitherm made a motion for judgment as a matter of law under
Rule 50(a) before the case was submitted to the jury; the district court denied the
motion.
• After the verdict was issued, the defendant failed to renew its motion for
judgment as a matter of law under 50(b), or seek a new trial under Rule 59 [a
device that we will consider below].
• On appeal, the defendant sought and obtained a new trial order from the circuit
court, but the Supreme Court reversed that order

2. Instructions & Verdicts

a. Jury Instructions

• Before a case is submitted to the jury for a decision, the court must first
instruct the jury on the law that it is to apply to the facts as it decides them.
Juries are not free to interpret the law themselves or apply their own sense of
what the law should be. Rather, the jury is constrained to follow the law as
given to them by the judge, having the freedom only to render their judgment
as to the facts and how the law should be applied to those facts. The shaping
and giving of these instructions are governed by Rule 51:

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 FRCP 51. Instructions to the Jury

REFER TO PG. 842 IN THE CASEBOOK

REFER TO PG. 103 IN THE BLUEBOOK

• The litigants have the opportunity to shape the content of the jury instructions
through their proposals, but it is ultimately the court’s decision as to what
instructions will actually be given.
• Parties may object to their adversary’s proposed instructions and to the
instructions that the court intends to give. FED. R. CIV. P. 51(c)(1).
o “ A party who objects to an instruction or the failure to give an
instruction or the failure to give an instruction must do so on the
record, stating distinctly the matter objected to and the grounds for the
objection.”
• Any unraised objections will be waived, meaning that the offended party will
not have the opportunity to challenge an instruction (or the failure to give a
certain instruction) on appeal. FED. R. CIV. P. 51(d).
o “A party may assign as error (A) an error in an instruction actually
given, if that party properly objected; or (B) a failure to give an
instruction, if that party properly requested it and…also properly
objected.”

b. Verdicts

• After receiving instructions from the court, the jury retires to deliberate in
order to reach a verdict. These deliberations are in private and the discussions
are kept confidential. In the federal system, the verdict in civil trials must be
unanimous unless the parties agree to the contrary. FED. R. CIV. P. 48.
• Mistrial- when a jury is unable to arrive at a verdict; a new trial or new jury
ordered
• General verdict- If the jury is able to reach a verdict, the typical form of the
verdict is ordinarily a simple finding either in favor of the plaintiff or the
defendant. There are two potential problems with general verdicts:
 It is not possible to determine whether the jury properly
considered and resolved each of the necessity issues to reach its
result or if they simply found in favor for a particular party
based on their own instincts, emotions, or general sense of the
case.
 Second and more importantly, general verdict make it more
difficult to discern whether an erroneous instruction tainted the
verdict when multiple grounds for a given result exists.
• If there are three potential bases fro finding the
defendant liable, for example, and the court’s
instructions on one of those bases is erroneous, a
general verdict will leave unclear whether the jury’s

79
 finding against the defendant was based on that one
basis or one of the other two.

FRCP49. Special Verdict; General Verdict and Questions

REFER TO PG. 844 IN THE CASEBOOK

REFER TO PG. 100 IN THE BLUEBOOK

3. New Trials

Once a verdict is announced, the court has the authority to throw out the jury’s verdict
and order a new trial. Rule 59 speaks to this authority.

FRCP 59. New Trial

REFER TO PG. 845 IN THE CASEBOOK

REFER TO PG. 113 IN THE BLUEBOOK

• Notice that the rule itself does not state the grounds on which a new trial may be
ordered but rather refers to “any reason for which a new trial has heretofore been
granted in an action at law in federal court.”

Dadurian v. Underwriters at Lloyd’s of London

• The motion for judgment notwithstanding the verdict (or jnov) was renamed as
the renewed motion for judgment as a matter of law after Rule 50 was amended in
1991.
• Lloyd (defendant) was an insurance company that had issued a policy to Dadurian
(plaintiff) who claimed to have lost jewelry. Lloyd’s refused to pay out the policy
to the plaintiff because of false statements that the plaintiff made about his claim.
Dadurian sued Lloyd.
• At trial, the jury entered a special verdict and Lloyd made a renewed motion as a
matter of law which was denied.
• On appeal Lloyd claimed that plaintiff had lied about several material facts related
to his claim. Lloyd contended that evidence presented at trial was so
overwhelming against Dadurian on both these issues that no reasonable jury could
have rendered a verdict in his favor.
• Two issues that were presented to the COA for review:
o The COA the court found that a reasonable jury could have concluded that
Dadurian’s statements regarding his acquisition of the jewelry was true
because there was ample evidence to prove such.
o Under the defendant’s insurance policy if the insured gives false
information related to claim he/she is eligible to receive pay out. Where
Dadurian obtained the cash used for his jewelry purchases was “material”
to his claim.

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  Material: To be considered material, a statement need not “relate
to a matter or subject which ultimately proves to be decisive or
significant in the ultimate disposition of the claim; rather, it is
sufficient if the statement was reasonably relevant to the insurance
company’s investigation of a claim.
• The Court found that the information presented at the trial showed that plaintiff
had given false statements about how he had acquired the money to pay for
jewelry. Therefore, the jury’s verdict was against the clear weight of the evidence.
• The COA held that the district court abused its discretion in denying defendant’s
motion for a new trial, and remand the case for retrial by a new jury.
• Lloyd wanted a directed verdict. But the COA stated that most courts are reluctant
to direct a verdict for the party having the burden of proof, therefore this judicial
control was not used in his case.
• When an issue involves a determination of credibility is the better alternative
when a court believes that a reasonable jury would not have found for a party, but
it did, is to remand for a new trial with a new jury.

Points for Discussion

a. The Standard for Granting a New Trial

• In Dadurian, the court granted a new trial because the jury’s verdict was against
the great weight of evidence, even though the court acknowledged that there was
sufficient evidence to prevent the court from entering judgment as a matter of law.

• Other grounds for ordering a new trial exist: the court may feel that the damages
awarded are excessive, that the conduct of the trial itself was somehow unfair to
the moving party, or that there were substantial legal errors pertaining to the
admission or exclusion of evidence or the content of instructions to the jury. The
discovery of new evidence may also provide grounds for ordering a new trial.

• A new trial is favored over a judgment as a matter of law because the case is still
being submitted to a jury and power is not being usurped from them.

b. Remittitur and Additur

• When the court feels that the damages award is so excessive that it “shocks the
conscience,” rather than ordering a new trial the court can give the prevailing
party the option of accepting a reduced, more appropriate damages award or face
a new trial.
• In such a situation, the prevailing party is faced with a difficult choice: take less
than a jury has given them or face a new trial in which they may lose entirely.
This practice is referred to as remittitur. The converse practice—asking a losing
defendant to accept a verdict for a higher amount or face a new trial because the
court feels that the damages are shockingly inadequate—has been declared
unconstitutional in the federal system

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 Points for Discussion

a. The Relationship Between Rule 50 and Rule 59 Motions

• The renewed motion for judgment as a matter of law and the motion for a new
trial are frequently made together.
• More importantly, Rule 50 indicates that when faced with both motions, the
district court must decide both of them. Rule 50(c) and (d) then specify how the
court should proceed depending upon whether it grants or denies the motion for
judgment as a matter of law:

FRCP 50(c) and (e). Judgment as a Matter of Law in a Jury Trials Related
Motions for a New Trial; Conditional Ruling

4. Relief from Judgment under Rule 60(b)

REFER TO PG. 860 IN THE CASBOOK

REFER TO PG IN THE BLUBOOK

Recall that Rule 59(b) requires that a new trial be sought “no later than 10 days after
entry of the judgment.” After that time has elapsed, the Federal Rules provide another
means of getting the trial court to reconsider its decision—the motion for relief from
judgment under Rule 60(b)

FRCP 60(b) & (c). Relief from a Judgment or Order

REFER TO PG. 861 IN THE CASEBOOK

REFER TO PG. IN THE BLUEBOOK

• Relief under Rule 60(b) is rare. Once a court has entered a final judgment, our
system’s interest in finality weighs heavily against reopening the decision for
reconsideration. Thus courts understand the provisions of Rule 60(b) in that
light when interpreting and applying them.

a. Timing for the Motion

Movants seeking relief for any of the first three reasons under Rule 60(b) must do so
within one year of the final judgment. This time limit is jurisdictional, meaning that
courts are not at liberty to extend it.

b. Mistake or Excusable Neglect

• What consideration should warrant relief from judgment under Rule
60(b)(1). Which permits relief from judgment in the face of mistake or

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 excusable neglect? The court in Pioneer Investment Services Co. v.
Brunswick Associates Ltd., Partnership.
 The risk of prejudice to the non-movant
 The length of the delay
 The reason for the delay, including whether it was in the
control of the movant
 Whether the movant acted in good faith

c. Newly Discovered Evidence

• Courts have also developed a multi-faceted analysis for determining whether
relief from judgment should be granted under Rule 60(b)(2) on the basis of
newly discovered evidence. Daeda v. School Dist. Of Lee County
1. the evidence must be newly discovered since the trial
2. Due diligence on the part of the movant to discover the new
evidence must be shown
3. The evidence must not be merely cumulative or impeaching
4. The evidence must be material; and
5. The evidence must be such that a new trial would probably
produce a new result

d. Fraud

• To obtain relief under Rule 60(b)(3) courts have held that there must be clear
and convincing evidence that the adverse party obtained he verdict through
fraud and that the fraud prevented the movant from fully presenting its case.

e. Other Reasons

• Judgments are not often set aside under Rule 60(b)(6); “the Rule is used
sparingly as an equitable remedy to prevent manifest injustice and is to be
utilized only where extraordinary circumstances prevented a party from taking
timely action to prevent or correct an erroneous judgment.” Latshaw v.
Trainer Wortham & Co.
• What do you think would qualify as “extraordinary circumstances”
under Rule 60(b)(6)?
 Holding that where the plaintiff’s attorney ignored court
orders, neglected motions, missed hearings and other court
appearances, and failed to file pleadings or serve them on
opposing counsel, the plaintiff was entitled to Rule 60(b)(6)
relief from a default judgment on account of his counsel’s
gross negligence
• Note that “if the asserted ground for relief falls within one of the enumerated
grounds for relief subject to the one-year limit of Rule 60(b), relief under the
residual provision of Rule 60(b)(6) is not available.” Arrieta v. Battaglia

B. Appellate Review

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 1. The Final Judgment Rule

In the federal system, the jurisdiction of the U.S. Court of Appeals is limited by the final-
judgment rule, which is codified at 28 U.S.C. 1291:

28 U.S.C. 1291. Final Decisions of District Courts.

The courts of appeal…shall have jurisdiction of appeals from all final decisions of the
district courts of the United States.

• Generally speaking a final decision is a final resolution of the case such that
nothing remains to be done at the trial level (except enforcement).
• Dispositions of a case, for example, through a dismissal for lack of personal
jurisdiction would be preverdict resolution that ended all proceedings in the
trial court. Thus, such a ruling would seem to qualify as a final decision
appealable under 1291.
• The general rule then is that any trial court decision that conclusively resolves
a case and brings it to close will be an appealable final decision. Pre-trial and
trial rulings that do not end the case are generally not appealable until the end
of all trial and post-trial proceedings, or until the matter is brought to a close
by a final pre-trial decision such as the entry of summary judgment

Liberty Mutual Ins. Co. v. Wetzel

• Rule 54(b) “does not apply to a single claim action…It is limited expressly to
multiple claims actions in which ‘one or more but less than all’ of the multiple
claims have been finally decided and are found otherwise to be ready for appeal.
o In this case the respondents set forth but a single claim. Their
complaint advanced a single legal theory which was applied to only
one set of facts.
• Was the interlocutory summary judgment final in this case?
o The order, viewed apart from its discussion of Rule 54(b), constitutes a
grant of partial summary judgment limited to the issue of petitioner’s
liability. Such judgments are by their terms interlocutory, see Fed. R. Civ.
56(c), and where assessment of damages or awarding of other relief to be
resolved have never bee considered to be “final” within the meaning of 28
U.S.C. 1291. The respondents requested damages, but were not awarded
any; they requested attorney’s fees, but received none.
• The only possible authorization for an appeal from the District Court’s order
would be pursuant to the provisions of 28 U.S.C. 1292: “The court of appeals
shall have jurisdiction of appeals from: (1) Interlocutory orders of the
district courts of the United States…granting, continuing, modifying,
refusing or dissolving injunctions, or refusing to dissolve or modify
injunctions.”

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 o If the District Court had granted injunctive relief but had not ruled on
respondents’ other requests for relief, this interlocutory order would have
been appealable under 1292(a)(1).
o What if the court failed to discuss an injunction? Would that be
similar/virtually like denying an injunction?
 It might be argued that the order of the District Court, insofar as it
failed to include the injunctive relief requested by respondents, is
an interlocutory order refusing an injunction within the meaning of
1292(a)(1). But even if this would have allowed respondents to
then obtain review in the Court of Appeals, there was no denial of
any injunction sought by Petitioner and it could not avail itself of
that grant of jurisdiction.
Were we to sustain the procedure followed here, we would condone a practice
whereby a district court in virtually any case before it might render an
interlocutory decision on the question of liability of the defendant, and the
defendant would thereupon be permitted to appeal to the court of appeals without
satisfying any of the requirements that Congress carefully set forth.

Points for Discussion

b. Exceptions to the Final-Judgment Rule

• Liberty Mutual highlights several important exceptions to the final judgment rule
28 U.S.C. 1291.
• Two important exceptions mentioned by the Court are found in 28 U.S.C. 1292.
o Section 1292(a)(1) permits appeals of interlocutory orders “granting,
continuing, modifying, refusing or dissolving injunctions, or refusing to
dissolve or modifying injunctions.” 28 U.S.C. 1292 (a)(1).
o Section 1292(b) permits appeals of interlocutory orders if the trial court
certifies that (1) the order involves a controlling question of law, (2) there
is substantial ground for difference of opinion (3) an immediate appeal
from the order may materially advance the ultimate termination of the
litigation
• Even if the trial court makes the requisite certifications, the party seeking an
appeal must do so within ten days and the Court of Appeals then has discretion to
accept or reject appellate jurisdiction.

c. Rule 54(b): Judgments upon Multiple Claims

• Although not strictly speaking an “exception” to final-judgment rule, Rule 54(b)

—mentioned in Liberty Mutual—authorities a trial court to enter a final judgment
as to one or more (but not all) of the claims in a multi-claim or multi-party action
if the court “expressly determines that there is no just reason for delay.” FED. R.
CIV.P. 54(b).

d. The Collateral-Order Doctrine

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 • Under what is now referred to as the collateral order doctrine, the Supreme Court
has interpreted.28 U.S.C. 1291—the statute imposing the final-judgment rule—as
permitting appeals of interim trial court orders that are unrelated to the merits of
the action when those orders will not be susceptible to review on appeal from a
final judgment
• In Cohen v. Beneficial Indus.:
o The purpose [of 1291] is to combine in one review all stages of the
proceeding that effectively may be reviewed and corrected if and when
final judgment results.
o This decision appears to fall in that small class which finally determine
claims of right separable from, and collateral to, rights asserted in the
action, too important to be denied review and too independent of the
cause itself to require that appellate consideration be deferred until the
whole case is adjudicated. The Court has long given this provision of the
statute this practical rather than a technical construction.
• Can you extract from Cohen the specific contours of the collateral-order
doctrine?
o We have held that to fall within the Cohen exception, an order must satisfy
at least three conditions: It must conclusively determine the disputed
question, resolve an important issue completely separate from the merits
of the action, and be effectively unreviewable on appeal from a final
judgment
• Keep in mind that orders qualifying for review under the collateral-order doctrine
comprise a “small class,” a fact that is evidenced by the many times the Supreme
Court has rejected application of the doctrine.

e. The Writ of Mandamus

• Beyond these exceptions, it is possible to circumvent the final-judgment rule

through recourse to the writ mandamus. This is an extraordinary writ that
petitions the appeals court for an order directing the district court judge to
withdraw the contested order.
• Strictly speaking, mandamus review is not an appeal but rather an equitable
remedy having the same ultimate effect—the reversal of the trial court’s order.
The Supreme Court has held that U.S. Courts of Appeals have the authority to
issue writs of mandamus pursuant to the All Writs Act.
• In a subsequent case, however, the Court stated, “The writ is appropriately
issued…when there is ‘usurpation of judicial power’ or a clear abuse of
discretion…”
• Generally speaking, case law has reflected that the remedy is appropriate when
the adversely affected party requires immediate review to forestall some
irreparable harm resulting from a district court’s abuse of discretion that will not
be remediable on appeal from an ultimate final judgment

f. Appeals from Contempt Orders

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 • Where no appeal is available of an interim order and none of the exceptions or
special circumstances warranting interlocutory or mandamus review are
present, it may be possible to obtain review by disobeying the order and
appealing the ensuing finding of contempt.
 “One to whom a subpoena is directed may not appeal the
denial of motion to quash that subpoena is directed may not
appeal the denial of a motion to quash that subpoena but must
either obey its commands or refuse to do so and contest the
validity of the subpoena if he is subsequently cited for
contempt on account of his failure to obey.” United States v.
Ryan
 “The rule is settled in this Court that except in connection with
an appeal from a final judgment or decree, a party to a suit may
not review upon appeal an order fining or imprisoning him for
the commission of a civil contempt.” Fox v. Capital Co.
g. Time to Appeal

• Litigants have ten days to appeal interlocutory decisions

• The time appeal final judgments is governed by the Federal Rules of
Appellate Procedure, specifically Rule 4 of those rules. The general rule is as
follows: “In a civil case…the notice of appeal…must be filed with the district
clerk within 30 days after the judgment or order appealed from is entered.”
FED. R. APP. P. 4(a)(1)(A).
• Post-trial motions such as a motion for judgment under Rule 50(b) or for a
new trial under Rule 59 will postpone the running of this 30-day period until
the time when the district court rules on such motions. FED. R. APP. P. 4(a)
(4)(A).
• The district court is empowered to extend the 30 day time period at the request
of a party or, if 30 days has expired, if the party can demonstrate “excusable
neglect” or “good cause.” FED. R. APP. 4(a)(5)(A).

2. Scope of Review

• If a decision has the requisite finality to be appealable or is treated as

appealable under an exception to the final judgment rule, the appellate court is
limited in the scope of its review. There are two aspects to an appellate court’s
scope of review.

Reviewability
• The first aspect of an appellate court’s scope of review is the reviewability of
decisions within a case presented to the appellate court. Not all decisions that
a trial court has made with respect to an action are reviewable once the case
makes its way to one of the courts of appeals.

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 • Adverse interlocutory rulings by the trial court are not reviewable on appeal
when those rulings went against the party who ultimately prevailed on the
final verdict.
• Relatedly, when a verdict-loser challenges certain interlocutory rulings on
appeal, if those rulings are found not to have impacted the verdict and thus
can be described as harmless errors, appeals courts will treat those decisions
as unreviewable.
• Another way in which an interlocutory decision can be rendered unreviewable
is through the failure of the adversely-affected party to enter a timely
objection to the ruling before the trial court. This contemporaneous-objection
rule applies to purportedly erroneous evidentiary rulings; the disgruntled party
is obligated to challenge the ruling before the trial court to preserve the right
to raise the challenge on appeal. FED. R. EVID. 103(a).
• The same principle applies, for example, to challenge to jury instructions
FED. R. CIV. P. 51, or even erroneous verdicts, FED. R. CIV. P. 50; in most
instances in these and other contexts, the dissatisfied litigant must first raise
the objection with the trial court in order to make such matters reviewable
appeal.
• The Seventh Amendment prohibits the reexamination of factual
determinations made by juries, so jury findings of fact are unreviewable on
appeal. However, when a judge rather than a jury has been responsible for
findings of fact at trial, those findings are reviewable by the appeals court.
Rule 52(a) provides that such findings may not be set aside unless they are
“clearly erroneous”.

De Novo Review
• De novo review is the least deferential standard of review; indeed, when
an appellate court exercises de novo review it is not giving any deference
to the trial court’s decision.
• When this standard applies, the appeals court is considering the question
anew without regard to what the lower court had to say about the matter.
• Because de novo review completely second-guess the trial court’s
determination, it is a level of review that is only appropriate when the
appellate court is reviewing matters for which it is in as good a position
to determine the correct answer as was the district court.
• That means that de novo review is inappropriate when appellate courts are
reviewing trial court determinations that involve to some degree any level
of factual determination or any decisions that are the result of a very fact-
specific injury. Rather, de novo review is reserved for those questions of
law decided by the trial court.

b. Review for Clear Error

• When trial judges themselves make factual determinations—either because they

have conducted a trial without a jury or because they have to make factual

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 determinations in order to rule on various motions—those factual determinations
may be scrutinized by the appeals courts, but such scrutiny is deferential.
• Specifically, appeals courts may not reverse such determinations simply because
they would have made a different finding; rather, reversal in such instances is
only permissible if the appeals courts believes that the district court’s decision is
clearly erroneous. See Fed. R. Civ. P. 52(a).
• Clear error review means that it is not really a close question; the district court is
clearly quite wrong.

c. Review for Abuse of Discretion

• Finally, there are those trial court decisions that are reviewed for an abuse of
discretion. This level is the most deferential because it permits the trial judge’s
decision to stand as long as there is some rational basis for the decision and the
proper legal standard was used, even if the appeals court disagrees with the
decision and would have gone the other way.
• Decisions subject to this level of review include most decisions connected with
the conduct and management of the pre-trial and the trial process but also apply to
provisional decisions such as whether to grant a preliminary injunction.

C. Preclusion Doctrine

• The preclusive effect of a judgment refers to the extent to which a judgment

prevents parties to the action that resulted in the judgment—or other persons—
from relitigating the claims, defenses, or issues raised in the prior action.
o Merger:
o Bar:
• The two main wings or preclusion doctrine are claim preclusion and issue
preclusion

Claim Preclusion

• The doctrine of claim preclusion prohibits the relitigation of claims that have been
conclusively resolved between the same parties
• Because claim preclusion is a common law doctrine, its details can vary across
jurisdictions. However, the states are bound by the Constitution’s Full Faith and
Credit Clause (and its implementing statute, 28 U.S.C. 1738) to give the
judgments of other American jurisdictions the same preclusive effect that those
judgments would enjoy in the jurisdictions where they were rendered.
• In the federal system, whether claim preclusion applies to prevent litigation in a
particular case is ordinarily determined by reference to the preclusion law of the
state where the initial judgment was issued.

Nestor v. Pratt & Whitney

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 • The doctrine of res judicata bears on “the effect of a judgment in foreclosing
litigation of a matter that never has been litigated, because of a determination that
it should have been advanced in an earlier suit.” It is a rule against the splitting of
actions that could be brought and resolved together.
• In considering the preclusive effect of a state court judgment on a subsequent
federal action, under the Full Faith and Credit Act, 28 U.S.C. 1738, the court will
usually consult the preclusion laws of the state in which the judgment was issued.
• “Under the doctrine of res judicata, or claim preclusion, a former judgment on a
claim, if rendered on the merits, is an absolute bar to a subsequent action
[between the same parties or those in privity with them] on the same claim…or
any claim based on the same operative facts that might have been made.”
• In determining what claims were or could have been litigated in a prior action,
Connecticut law applies the “transactional” test described in Section 24 of the
Restatement (Second) of Judgments:

The claim that is extinguished includes all rights of the plaintiff to

remedies against the defendant with respect to all or any part of the
transaction, or series of connected transactions, out of which the action
arose.

• Section 26(1)(c) of the Restatement (Second) of Judgment provides an exception

to the rule against splitting an action where:

The plaintiff was unable to rely on a certain theory of the case or to seek a
certain remedy or form of relief in the first action because of the
limitations on the subject matter jurisdiction of the courts or restrictions on
their authority to entertain multiple theories or demands for multiple
remedies or forms of relief in a single action, and the plaintiff desires in
the second action to rely on that theory or to seek that remedy or form of
relief…
• Public Policy: “Doctrines of preclusion…should be flexible and must give way
when their mechanical application would frustrate other social policies based on
values equally or more important than the convenience afforded by finality in
legal controversies.

Points for Discussion

a. The Doctrine of Claim Preclusion

• There are three basic requirements for claim preclusion to apply: (1) the prior
action must have concluded in a valid, final judgments on the merits, (2) the claim
in the subsequent action must be the same as the claim that was raised or should
have been raised in the previous action, (3) and the parties in the subsequent
action must be identical to—or in privity with—the parties in the first action.

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 • When satisfied, the doctrine operates to bar sequent litigation of the claim at issue

b. Same Claim Requirement & the “Transactional” Test

• The Fifth Circuit provided a useful summary of the Restatement’s transactional

test in Petro-Hunt:
o Under that test, the preclusive effect of a prior judgment extends to all
rights the original plaintiff had with respect to all or any part of the
transaction, or series of connected transactions, out of which the [original]
action arose…The critical issue is whether the two actions under
consideration are based on the same nucleus of operative facts
• Because the transactional test prevents parties from dividing what is in effect a
single claim into multiple actions to be litigated separately, the rule is sometimes
referred to as a “rule against claim splitting.”
• There are exceptions to this rule, however. The one worth mentioning is the
exception discussed by the court in Nestor : the prohibition against claim splitting
does not apply if it was not actually possible to have raised the claim in the
previous action. See Restatement (Second) of Judgments 26(1)(c)

c. Raising a Claim Preclusion Challenge

• Claim preclusion is an affirmative defense that must be set forth in a responsive

pleading if a party intends to challenge a claim on preclusion grounds or it may be
waived. FED. R. CIV. P. 8(c).
• However, courts permitted the defense to be raised for the first time in a motion to
dismiss or for summary judgment if the tardy assertion of the defense does not
unfairly prejudice the claimant.
• After raising the defense in a responsive pleading, litigants may press their
preclusion defense by seeking dismissal or summary judgment on preclusion
grounds, demanding a judgment in their favor on the basis that the current action
is barred by a judgment in a prior action.
• “If a court is on notice that it has previously decided the issue presented, the court
may dismiss the action sua sponte, even though the defense has not been raised.
This result is fully consistent with the policies underlying res judicata: it is not
based solely on the defendant’s interest in avoiding the burdens of twice
defending a suit, but is also based on the avoidance of unnecessary judicial
waste.” Burrell v. Armijo
• Courts have no obligation to raise the defense sua sponte because preclusion bars
are not jurisdictional defects.
• The fact that a claim may be precluded does not deprive a court of jurisdiction
over the claim, similar to the effect of an expired statute of limitations period.
Rather, these are defenses that the litigants are obligated to raise.

The Same Parties Requirement

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 • In addition to involving the same or transactionally related claims, subsequent
actions must involve the same parties as were involved in the prior action to be
barred by claim preclusion.
• The more challenging question is the extent to which non-parties may be bound
by prior actions
• Claim preclusion has been extended to embrace subsequent actions involving
different parties when they are in “privity” with those who were parties to the
previous action, meaning they have a sufficiently close relationship such that it is
fair bind them to the earlier judgment.

Benson v. Wanda

• The conclusive effect of a prior judgment may only be invoked against a party or
a privy
o “First, a nonparty who has succeeded to a party’s interest in property is
bound by prior judgments against that party…Second, a nonparty who
controlled the original suit will be bound by the resulting judgment…
Third, federal courts will bind a nonparty whose interests were represented
adequately by a party in the original suit…
• “To have control of litigation requires that a person have effective choice as to the
legal theories and proofs to be advanced in behalf of the party to the action. He
must also have control over the opportunity to obtain review.”
• Examples of the “control” necessary to preclude a nonparty
are: the
president and sole shareholder controls his company; a parent corporation
controls its subsidiary; a liability insurer assumes control of a defense; and
the indemnitor defends an action against an indemnitee.

• Lesser measures of participation without control do not suffice. Thus it is

not enough the nonparty supplied an attorney or is represented by the same
law firm; helped to finance the litigation; appeared as an amicus curiae;
testified as a witness; participated in consolidated pretrial proceedings;
undertook some limited presentations to the court; or otherwise
participated in a limited way. Even a nonparty who was ‘heavily involved’
may remain free from preclusion. It is essential that he nonparty have
actual control
• Adequate representation: refers to the concept of virtual representation, by
which a nonparty may be bound because the party to the first suit ‘is so closely
aligned with his [the nonparty’s] interest as to be his virtual representative.” For a
nonparty to be so “closely aligned…requires more than a showing of parallel
interest or, even, a use of the same attorney in both suits.”
• As explained in Pollard v. Cockrel:
o Virtual representation demands the existence of an express or implied
legal relationship in which parties to the first suit are accountable to non-
parties who file a subsequent suit raising identical issues.

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 • In this case, despite having the same attorney and the same claim from the same
set of fats, there is no indication that Ford and Shelby had any expressed or
implied legal relationship. There was no implication that Shelby was in any way
accountable to Ford. Virtual representation does not apply.
• The general rule is “that a nonparty is not obligated to seize an available
opportunity to intervene in pending litigation that presents question affecting the
nonparty.” (Ford was not obligated to join the Shelby case)
• RE-READ PAGE 913 (COME BACK)

Points for Discussion

a. Defining Privity

• The Benson and Ford case aptly sets forth the three broad circumstances under
which courts will consider non-parties to be bound by judgments issued in prior
litigation:

First, a nonparty who has succeeded to a party’s interest in property is bound by any prior
judgments against that party…Second, a nonparty who controlled the original suit will be bound
by the resulting judgment…Third, federal courts will bind a nonparty whose interests were
represented adequately by a party in the original suit…

• The first rule refers to the common understanding that

successors-in-interest, meaning those who are the successive
owners of property for example, are bound by former
adjudication respecting that property to the same extent the
previous owner would have been bound.
• The final circumstances, in which non-parties are bound
because they were adequately represented in the prior
litigation, is perhaps the most expansive basis for binding
non-parties.
 This category can refer both to situations in
which the nonparty was actually represented in
a prior case and to situations in which non-
parties are found to be sufficiently aligned with
parties to be treated as if they were represented
in the previous action.
 The former set of circumstances are summarized
in the Restatement (Second) of Judgments:

Restatement (Second) of Judgments 41. Person Represented by a Party

REFER TO PG. 914

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 • Some courts will go beyond requiring actual representation in a prior suit and will bind
non-parties based on virtual representation, the notion that he non-party’s interests are
sufficiently aligned with the party in the prior suit that it is fair to bind the nonparty to the
previous result.

b. Privity and Due Process

• The requirement of privity is one that is rooted in due process. Specifically, it is a

violation of due process to conclude someone’s rights through judicial action to which
that person was not a party. The Supreme Court restated this long-held principle in
Martin v. Wilks:

o All agree that “it is a principle of general application in Anglo-American

jurisprudence that one is not bound by a judgment in personam in a litigation in
which he is not designated as a party or to which he has not been made a party by
service of process.” Hansberry v. Lee This rule is part of our “deep-rooted
historic tradition that everyone should have his own day in court.” A judgment or
decree among parties to a lawsuit resolves issues as among them, but it does not
conclude the rights of strangers to those proceedings.

o Exceptions: where a person was adequately represented in or had control over

the prior litigation.

The Requirement of a Valid Final Judgment

The third requirement for claim preclusion is that only valid final judgments will be accorded
claim preclusive effect. Finality for purposes of claim preclusion requires specificity. In
particular, traditional formulations of this requirement have alluded to three aspects of the rule:
validity, finality, and the need for the judgment to be “on the merits.”

Validity: means that the rendering court was a court with proper jurisdiction over the matter and
the over the parties, not that the prior judgment was legally correct.

Finality: the Supreme Court has defined a final decision as one that “ends the litigation on the
merits and leaves nothing for the court to do but execute the judgment.” Firestone Tire & Rubber
Co. v. Risjord. The more nettlesome issue can be whether the resolution of the matter was one
“on the merits.”

Semetek Int’l Inc. v. Lockheed Martin Corp.

• With regard to the claim preclusion issue involved in the present case, for example, the
traditional rule is that expiration of the applicable statute of limitations merely bars the
remedy and does not extinguish the substantive right, so that dismissal on that ground
does not have claim-preclusive effect in other jurisdictions with longer, unexpired
limitations periods.
• The primary meaning of “dismissal without prejudice,” we think, is dismissal without
barring the plaintiff from returning later, to the same court, with the same underlying
claim.
• Thus, Black’s Law Dictionary defines “dismissed without prejudice” as “removed from
the court’s docket in such a way that the plaintiff may refile the same suit on the same

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 claim,” and defines “dismissal without prejudice” as “[a] dismissal that does not bar the
plaintiff from refiling the lawsuit within the applicable limitations period.”

Points for Discussion

a. The Holding of Semtek

• What is the Semtek Court’s holding regarding the preclusive effect of dismissals in
federal diversity actions?

“The [Semtek] court concluded that the phrase ‘adjudication upon the merits’ in
Rule 41(b) does not mean that the judgment must result in claim preclusion”

• The point of Semtek is that what ultimately matters in determining the preclusive effect of
a dismissal is not the label placed on the dismissal by Rule 41(b) but rather the
underlying basis for the dismissal:

“The state court’s decision regarding whether claim preclusion prevents a state
lawsuit will depend upon the basis of the federal court’s dismissal, not the
nomenclature employed by the federal court to describe the dismissal.” Styskal

• If the federal court’s ruling is based on the substance of the claim (what has often been
termed an “adjudication on the merits,”) the doctrine of claim preclusion would
ordinarily prevent further proceedings on the claim in a later state action. But if the
federal court’s dismissal is based on a procedural ground (here because of statute of
limitations), the federal ruling is unlikely to have any preclusive effect in state court,
even though the dismissal may bar the plaintiff from returning to federal court.

b. Preclusion in Non-Diversity Cases

• Semtek addressed the preclusive effect of dismissals in federal diversity cases. What is
the relevant standard for determining the preclusive effect of dismissals in non-
diversity cases in federal court?

It is federal law that applies in this context:

The federal standard applied is a federal common law standard that is virtually identical
to the version of claim preclusion prevalent among the states: “Before res judicata will
apply, three factors must be present: (1) a final judgment on the merits in the earlier
action; (2) an identity of the cause of action in both the earlier and later suits; and (3) an
identity of parties or privies in the two suits.”

c. The Preclusive Effect of 12(b)(6) Dismissals

• The Supreme Court has stated, “the dismissal for failure to state a claim under FRCP
12(b)(6) is a ‘judgment on the merits.’
d. Judgments on Appeal

Do judgments that are on appeal have preclusive effect or must all appeals be exhausted
before a judgment may bar a subsequent suit?

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The general rule is that a pending appeal does not impact the preclusive effect of a judgment
unless the appeals court reverses or alters the judgment.

e. Default judgments

Default judgments, although not the product of fully contested litigation, are nonetheless given
full claim preclusive effect so long as they are invalid from a jurisdictional perspective.

f. Foreign Judgments

To what extent should the judgments rendered by courts in foreign countries be given claim
preclusive effect in the U.S. jurisdiction?

• Previously litigated claims should not be retried if the reviewing court finds that the
foreign court provided a full and fair trial of the issues in a court of competent
jurisdiction
• The foreign forum ensured the impartial administration of justice
• The foreign forum ensured that the trial was conducted without prejudice for fraud
• The foreign court had proper jurisdiction over the parties
• The foreign judgment does not violate public policy

Issue Preclusion

Issue preclusion (also referred to as collateral estoppel) refers to the preclusive effect that prior
judicial determinations have on the relitigation of certain issues rather than claims. To invoke the
doctrine of issue preclusion:

(1) the issue to be precluded in subsequent litigation must be the same issue that was
raised in the prior litigation that resulted in a valid final judgment,

(2) the issue must have been actually litigated and determined in the first case,

(3) resolution of that issue must have been necessary to the judgment in the initial action,
and

(4) the subsequent action must involve the same parties or their privies.

• Issue preclusion requires that the issues be identical—not merely transactionally related
—and that the issues have actually been raised and litigated; having had the opportunity
to raise an issue but failing to do so is not enough to trigger issue preclusion.

• A further unique aspect of issue preclusion is the requirement that the resolution of the
issue in the prior action must have been necessary to the outcome in the case.

Cromwell v. County of Sac

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 • In considering the operation of a judgment, it should be noted that there is a difference
between the effect of a judgment as a bar or estoppel against the prosecution of a second
action upon the same claim or demand, and its effect as an estoppel in another action
between the same parties upon a different claim or cause of action.

o In the former case, the judgment, if rendered upon the merits, constitutes an
absolute bar to a subsequent action. It is a finality as to the claim or demand in
controversy, concluding parties and those in privity with them, not only as to
every matter which was offered and received to sustain or defeat the claim or
demand, but as to any other admissible matter which might have been offered for
that purpose.

o But where the second action between the same parties is upon a different claim or
demand, the judgment in the prior action operates as an estoppel only as to those
matters in issue or points controverted, upon the determination of which the
finding or verdict was rendered.

• In all cases, therefore, where it is sought to apply the estoppel of a judgment rendered
upon one cause of action to matters arising suit upon a different cause of action, the
inquiry must always be as to the point or question actually litigated and determined in the
original action, not what might have been thus litigated and determined. Only upon such
matters is the judgment conclusive in another action.

• Various considerations , other than the actual merits, may govern a party in
bringing forward grounds of recovery or defense in one action, which may exist in
another action upon a different demand, such as:

o the smallness of the amount or the value of the property in controversy

o the difficulty of obtaining the necessary evidence
o the expense of the litigation
o and his own situation at the time
A party acting upon considerations like these ought not to be precluded from
contesting in a subsequent action other demands arising out of the same transaction.

• A judgment by default only admits for the purpose of the action the legality of the
demand or claim in suit: it does not make the allegations of the declaration or complaint
evidence in an action upon a different claim.

• The declaration may contain different statements of the cause of action in different
counts. It could hardly be pretended that a judgment by default in such a case would
make the several statements evidence in any other proceeding.

Points for Discussion

a. The Actually-Litigated Requirement

• As the Court clearly stated in Cromwell, in order to be given preclusive effect, a

previously raised issue must have actually been litigated and decided.
• How are courts in subsequent actions to go about determining whether an issue was
actually litigated and decided in a previous case?

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 The major practical problems posed by the actual decision requirement lies in the
need to discover what it was that has been actually decided. In cases tried to a
judge, express findings of fact and conclusions of law often show clearly what
has been—and what has not been—decided. Special verdicts or interrogatories
may bring equal clarity to decisions reached by a jury. At times, a court also may
take pains to make it clear that specific issues are not being decided so as to
remove any doubts as to possible issue preclusion So too, in conjunction with the
actual litigation requirement it may be determined that an issue was never
decided because it was never raised or was withdrawn before decision. Help also
may be found by asking whether the court in the first action lacked authority to
decide a particular issue, reasoning that it was not likely to have actually decided
an issue it lacked authority to decide. In other cases, a prior judgment may not
indicate clearly what issues were resolved. Although this problem may be most
common with respect to a jury’s general verdict, it also can arise with respect to
decisions by a judge. A variety of techniques have been adopted to identify the
issues decided; to the extent that they fail, the result is that he opaque judgment
fail to preclude litigation.

b. The Necessarily Decided Requirement

• The Cromwell Court also alluded to an equally important and closely related aspect of
issue preclusion: the resolution of the issue must have been necessary to the result
reached in the previous action.
• Russell v. Place:
o It is undoubtedly settled law that a judgment of a court of competent jurisdiction,
upon a question directly involved in one suit, is conclusive as to that question in
another suit between the same parties
o But to this operation of the judgment it must appear, either upon the face of the
record or be shown by extrinsic evidence, that the precise question was raised
and determined in the former suit.
o If there be any uncertainty on this head in the record…the whole subject-matter
of the action will be at large, and open to a new contention, unless this
uncertainty be removed by extrinsic evidence showing the precise point involved
and determined. To apply the judgment, and give effect to the adjudication
actually made, when the record leaves the matter in doubt, such evidence is
admissible.

The Same Parties Requirement and Non-Mutuality

Initially the rule of mutuality was thought to be necessary to achieve fairness: it did not seem fair
to permit a nonparty to the previous action to invoke an adverse determination on an issue in that
action against a party to that action.

For example, if A sued B for negligence and it was determined in that action that B
was negligent for crossing the double-yellow line in the street, mutuality held that in
an action that B was negligent for crossing the double-yellow line in the street,
mutuality held that in an action by C (the driver of another vehicle) against B for
negligence arising out of the same accident, C could not invoke the decision in A v. B
regarding B’s negligence as conclusive against B in C v. B. Thus, B would

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 traditionally have been able to challenge C’s assertions of negligence even though B
had previously done so and lost in the first action.

Parklane Hosiery Co. v. Shore

• Defensive Collateral Estoppel: occurs where a new defendant seeks to prevent a

plaintiff from asserting a claim the plaintiff has previously litigated and lost against
another defendant.
• Offensive Collateral Estoppel: occurs where a new plaintiff seeks to foreclose the
defendant from litigating an issue that the defendant has previously litigated
unsuccessfully with another party.
• Why defensive collateral is preferred over offensive collateral estoppel:
o Defensive collateral estoppel gives a plaintiff a strong incentive to join all
potential defendants in the first action in order to decrease the amount of
litigations. This promotes efficiency.
o Offensive collateral estoppel increases the amount of litigation because the
plaintiff can adopt a “wait and see” attitude (wait to see if the first action will
result in a favorable judgment). This approach is inefficient, unfair, and
inconsistent. In addition:
 If a defendant in the first action is sued for small or nominal damages, he
may have little incentive to defend vigorously particularly if future suits
are not foreseeable.
 Allowing offensive collateral estoppel may also be unfair to a defendant
if the judgment relied upon as a basis for the estoppel is itself
inconsistent with one or more previous judgments in favor of the
defendant. Still another situation where it might be unfair to apply
offensive estoppel is where the second action affords the defendant
procedural opportunities unavailable in the first action that could readily
cause a different result.
• In Professor Currie’s familiar example, a railroad collision
injures 50 passengers all of whom bring separate actions
against the railroad. After the railroad wins the first 25 suits,
a plaintiff wins in suit 26. Professor Currie argues that
offensive use of collateral estoppel should not be applied so as
to plaintiffs 27-50 automatically to recover.

General Rule

• The preferable approach for dealing with these problems in the federal courts is not to
preclude the use of offensive collateral estoppel, but to grant trial courts broad discretion
to determine when it should be applied. The general rule should be that in cases where
a plaintiff could easily have joined in the earlier action or where, either for the
reasons discussed above or for other reasons, the application of offensive estoppel
would be unfair to a defendant, a trial judge should not allow the use of offensive
collateral estoppel.
• A litigant who has lost because of adverse factual findings in an equity action is equally
deprived of a jury trial whether he is estopped from relitigating the factual issues against
the same party or new party. In either case, the party against whom estoppel is asserted
has litigated questions of fact, and has had the facts determined against him in an earlier

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 proceeding. In either case there is no further factfinding function for the jury to perform,
since the common factual issues have been resolved in the previous action.

Points for Discussion

a. The Holdings of Parklane

• The Court also ruled that invoking collateral estoppel to preclude a party from being able
to have a jury resolve an issue that was previously decided by a judge in an earlier
equitable proceeding did not violate the Seventh Amendment.

c. Offensive versus Defensive Use of Issue Preclusion

• The Court in Parklane discusses the distinction between offensive and defensive use of
issue preclusion. Be sure to understand the nature of this distinction. Parklane addressed
facts involving offensive issue preclusion.

d. Binding Non-Parties
• Do not allow the relaxation of the mutuality doctrine to lead you to conclude that issue
preclusion can be invoked against those who were not parties to the previous action. It is
a fundamental violation of due process to bind someone to a determination arising from
proceedings to which they were not a party.

e. Law of the Case Doctrine

• Preclusion can operate between the parties to bind them to prior determinations made
within the confines of the same case, just as they may be bound by prior determinations
in subsequent cases.
• The doctrine that binds litigants within a case to prior rulings on matters and treats such
decisions as controlling throughout the litigation is referred to as the law of the case
doctrine.
• Under the doctrine re-examination of prior determinations is typically appropriate only in
limited circumstances:
o The law of the case “must be followed in all subsequent proceedings in the same
case in the trial court or on a later appeal in the appellate court, unless the
evidence on a subsequent trial was substantially different, controlling authority
has since made a contrary decision of the law applicable to such issues, or the
decision was clearly erroneous and would work a manifest injustice.”

Execute Summary

• Appellate Review: Under 28 U.S.C. 1291 the courts of appeals have jurisdiction of
appeals from all final decisions of the district courts of the United States. 28 U.S.C. 1292
provides two exceptions to this rule, permitting appeals of interlocutory orders
concerning injunctions and appeals of interlocutory orders concerning matters that the
trial court certifies are sufficiently contentious and important to the case to warrant
immediate review.
• Finality: through the final-judgment rule, the civil justice system promotes efficiency by
preventing interim appeals from disrupting the litigation process and by preventing
litigants from wasting appellate court time with many harmless errors that turn out not to
have an impact on the ultimate outcome in case.

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