Civil Pro Outline Done

Civil Procedure Fall 2010 Outline
Declaratory Relief
• -28 USC §§ 2201 – 2202 allows parties to seek declaration of rights w/o seeking damage or specific relief.
• -Rule 37 governs procedure.
Provisional Remedies
• -Temporary Restraining Orders (TROs)
• -Preliminary Injunctions
• -Attachments and garnishment
• -Rule 65 governs procedure of TROs and preliminary injunctions.
Preliminary Injunction Test
• P will likely suffer irreparable injure if injunctive relief is not granted.
• P will likely prevail on merits
• In balancing the equities, d will not be harmed more than p is helped by injunction; and
• Granting the injunction is in public’s interest
• -Point of a preliminary injunction is to hold the status quo.
Due Process
• 14th amendment – “nor shall any state deprive any person of life, liberty, or property w/o due process of law.”
• Must (1) give notice and (2) an opportunity to be heard (hearing).
• Protects from State deprivation, not private enterprises (like repo of a car).
Fuentes v. Shevin
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• It is unconstitutional to allow court to issue order of replevin seizing property from the homes of consumers (there must be notice
and a hearing).
• - F purchased stove and stereo from d on credit, stopped paying with only $200 left out of $1100, b/c of issues w/ service of the
stove, officer came and seized property from F’s home when he wasn’t there, court said have to give notice to F at a “meaningful
time and in a meaningful manner,” before officer can seize stove and stereo.
Mathews v. Elderidge – Factors to determine exceptions to Fuentes
• (Whether a person has received a “process that constitution finds “due”).
○ 1. The private interest that will be affected the official action.
○ 2. The risk of an erroneous deprivation of such interest through procedure used, and probable value of additional
procedures; and
○ 3. The Government’s interest, including function involved in the fiscal and
administrative burdens of additional procedural safeguards.
• -By weighing these concerns, courts can determine whether a state has met the “fundamental requirements of due process” – “an
opportunity to be heard” at a “meaningful time and in a meaningful manner.”
○ Ex) –health inspector finds bacteria in restaurant and shuts it down immediately
 -Justified because of the private interest of potentially having to pay out for food poisoning, and could affect
public health and create a large burden on government.
 -Health inspector finds rusty knife blade shuts down restaurant immediately
 -Doesn’t have the merit to shut them down, tell them to throw away the knife.
Temporary Restraining Orders
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• - a preliminary injunction requires notice, but a TRO can be granted w/o notice in some circumstances.
• -Rule 65(b)(1): “The court may issue a TRO w/o written waiver or oral notice to the adverse party or attorney only if:
○ (A) Specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or
damage will result to the movant before the adverse party can be heard in opposition; and
○ (B) The movant’s attorney certifies in writing any efforts made to give notice and the reasons why it should not be
required.
• -65(b)(2): “Every TRO issued w/o notice…expires at the time after entry – not to exceed 10 days – that the court sets.
• -65(b)(3) “If TRO issued w/o notice, the motion for a preliminary injunction must be set for hearing at the earliest
possible time.
Federal Rules of Civil Procedure
• -Adopted in 1938
○ -Rule 1:
 -“These rules govern the procedure in all civil actions and proceedings in the U.S. District Courts, except as
stated in Rule 81. They should be construed and administered to serve the just, speedy, and inexpensive
determination of every action and proceeding.”
○ -Rule 2:
 -“There is one form of action – the civil action.
Pleading
• Rule 7(a) pg 29: “Only these pleadings are allowed:
○ -A complaint
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○ -An answer to a complain
○ -An answer to a counterclaim designated as a counterclaim
○ -An answer to a cross claim
○ -A third party complaint
○ -An answer to a third party complaint; and if court orders one, a reply to an answer.”
• Rule 8(a) pg 30:
○ -“A pleading that states a claim for relief must contain:
○ (1) A short plain statement of the grounds for the court’s jurisdiction, unless court already has jurisdiction and claim
needs no knew support.
○ (2) A short plain statement of the claim showing that the pleader is entitled to relief; and,
 -(Invoke body of law, i.e. negligence and show facts fall within)
○ (3) A demand for the relief sought, which may include relief in the alternative or different types of relief.
• Functions:
○ To give notice to d of being served and what for
○ Gateway to discovery and entire pretrial process
○ Way of narrowing the issues and getting rid of faceless claims
• A claim can fail under Rule 8(a) when:
○ Bad drafting, does not invoke a body of law, or if law does not afford a remedy under the facts.
Haddle v Garrison
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• -Haddle (p) filed 42 §§ USC: 1985(2) claim against his former employer , who, in an attempt to prevent him from testifying in
federal court concerning his former employer (d). Garrison (d) p’s former employer, filed a motion to dismiss the claim under
Rule 12(b)(6) for failure to state a claim on which relief can be granted on grounds that p was entitled to no protection under 42
USC §§ 1985(2) because he was an at will employee. District court granted motion, p appealed. Appeals court dismisses,
Supreme Court Reverses. A court shall not dismiss a complaint for failure to state a claim unless it is clear that the p can prove
“no set of facts in support of his claim which would entitle him to relief.”
• -To make a claim p had to suffer an actual injury, Supreme disagrees with 11th circuit that b/c p was an at - will employee he has
no constitutionally protected Interest in continued employment, supreme says he does.
• -§ 1985(2) is directed not towards deprivation of property but intimidation or retaliation against witness in Fed Court proceedings.
 -So p can go to trail but hasn’t won yet.
Inconsistent Pleadings
• Permitted under Rule 8(d)(2-3) pg 31
○ - Rule 8(d)(2) Alternative Statements of a Claim or Defense.
○ “A party may set out two or more statements of a claim or defense alternatively or hypothetically, either in a single
count of defense or in separate ones. If a party makes alternative statements, the pleading is sufficient if any one of
them is sufficient.”
○ -Rule 8(d)(3) - Inconsistent Claims or Defenses.
○ “A part may state as many separate claims or defenses as it has, regardless of consistency.”
Bell Atlantic v. Twombly (2007)
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• p (subscriber) to local telephone and internet serves alleged that d (local telephone and internet companies) were violating anti-
trust laws by agreeing not to compete with each other and by agreeing to exclude other potential competitors.
• Anti-trust laws allow inference of conspiracy from behavior, but cannot be drawn from behavior typical of profit maximizing, non
collusive competitor.
• District court dismisses, COA reverses, Supreme dismisses
• P’s complaint failed b/c it made only conslusory allegations of conspiracy and did not nudge their claims across the line from
conceivable to plausible
• P must plead facts suggesting an agreement was made b/t the ds
Twombly quotes on Rule 8 pleading requirements
• -“requires more than labels and conclusions”
• - “a formulaic recitation of the elements of a cause of action will not do.”
• - “factual allegations must raise a right to relief above speculative level.”
Ashcroft v. Iqbal pg 1
Stradford v. Zurich Insurance Co.
- Dentist (Stradford) had insurance, stopped paying, policy lapsed, dentist then later paid up and got policy back, 10 days after policy
was back into effect, dentist made claim to insurance co for damages done to his workplace – a $150,000 claim, dentist got it, then asked for
limit ($ 1 mil.), insurance co came to investigate damages, insurance co investigation claimed damaged occurred while policy lapsed and
refused to pay. Dentist (Stradford) p sued insurance co (d) to pay and d sued p for fraud.
• - Rule 9(b) “In alleging fraud or mistake, a party must state w/ particularity the circumstances continent with fraud or
mistake. Malice, intent, knowledge and other conditions of a person’s mind may be alleged generally.”
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- Court says counter claim by d (insurance) b/c has to be particular and that d failed to follow Rule 9(b), court tells d to amend it, and
then summary judgment p has to pay back $150,000 to d b/c the damage occurred while policy was lapsed.
Heightened Pleading Standard
• Rule 9(b) pg 32 :
• “In alleging fraud or mistake, a party must state w/ particularity the circumstances continent with fraud or mistake.
Malice, intent, knowledge and other conditions of a person’s mind may be alleged generally.”
• - State and federal laws impose higher pleading standard in certain cases.
• - b/c congress made decision that a lot of certain types of claims are bs, the higher standard limits the amount of bs claims, and
impacts p b/c have to show more to get past pleadings.
Allocating the Elements
• 3 burdens, pleading, production, and persuasion
• if common law claim, case law declares which party has the burden of pleading claim’s elements.
○ -courts consider policy, fairness, access, etc.
• if statutory claim, focus on linguistic cues.
Jones v. Bock pg. 1
Ethical limitations – Rule 11
• Rule 11(a) – pg 33
○ - Signature requirement
○ – “Every pleading, written motion, or other paper must be signed by at least one attorney of record…”
• Rule 11(b) – pg 34
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○ - Certify to court a pleading, written motion, or other paper by signing, filing, submitting, or later advocating it and
attorney or unrepresented party certifies that to the belief of the person’s best knowledge, information, and belief, formed
after an inquiry reasonable under the circumstances that:
 - (1) its not being presented for an improper purpose, such as harass, cause undue delay of needless increase of
costs.
 - (2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfriviolus
argument for extending, modifying, or reversing existing law or for establishing new law.
 - (3) the factual contentions have evidentiary support, or will likely have evidentiary support after further
investigation and discovery, and
 - (4) the denials of factual contentions are warranted on the evidence or if specifically so identified are
reasonably based on a belief or a lack of info.
• Rule 11(c) –pg 34
○ (1) Allows for sanctions for violation of Rule 11(b) & how motion is initiated.
○ (2) motion can be made by opposing party or,
○ (3) by the court.
• Rule 11(d)-pg 35
○ - Rule 11 not applicable to discovery process.
-Walker v. Northwest pg. 1-2
-Christian v. Mattel Co.pg. 2
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Sanctions
• - Discretion of court to impose (order must describe basis of violation and sanction)
• - Limited to what is sufficient to deter repetition of such conduct.
• - Monetary sanctions presumptively paid to court
• Look at advisory committee notes for a variety of possible sanctions
• - Monetary sanction cannot be imposed against a represented party for violating Rule 11(b)(2).
Responding to a Complaint
• Do nothing (default judgment)
• Pre – answer motion
• Answer
• - admit / deny – be very specific rule 8(b)(2, 3, 4) / deny b/c of lack of knowledge 8(b)(5) / no response then deemed admitted
8(b)(6) / defenses / affimative defenses 8(a) / coutnerclaims or crossclaims rule 13.
Rule 12 – Pre Answer Motions pg 37
Rule 12(a) - Time to Serve A Responsive Pleading
• -d must serve an answer:
○ - (i) – within in 21 days of service of summons and complaint, or:
○ - (ii) – if it has timely waived service within 60 days after the request for a waiver was sent, or within 90 if d outside any
judicial district of the U.S.
((Rule 12(b,e, and f ) = permitted pre – answer motions).
Rule 12(b) – How to Present Defenses
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“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 on which relief can be granted
• (7) Failure to join a party under Rule 19.
• - A motion to asset any of these defenses must be made before pleading if a responsive pleading is allowed. No defense or
objection is waived by joining with one or more other defenses or objections in a responsive pleading or motion.”
Rule 12(c) - Motion for judgment on the pleadings
• “After the pleadings are closed – but early enough not to delay trail – a party may move for judgment on the pleadings.”
Rule 12(d) - Result of Presenting Matters outside the pleadings
• - “If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the
motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity to present
all the material that is pertinent to the motion.”
Rule 12(e) - Motion for a More Definite Statement
• - “A party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague
or ambiguous that the party cannot reasonably prepare a response.
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• The motion must be made before filing a responsive pleading and must point out the defects complained of and the details
desired.
• If the court orders a more definite statement and the order is not obeyed within 14 days after notice of the order or within the time
the court sets, the court may strike the pleading or issue any other appropriate order.”
Rule 12(f) – Motion to Strike
• “The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.
The court may act:
○ (1) on its own; or
○ (2) on motion made by a party either before responding to the pleading or, if a response is not allowed, within 21 days
after being served with the pleading.”
Rule 12(g) – Joining Motions
• (1) Right to Join
○ - “a motion under this rule may be joined with any other motion allowed by this rule.
• (2) Limitation on Further Motions
○ - Except as provided in Rule 12(h)(2) or (3), a party that makes a motion under this rule must not make another motion
under this rule raising a defense or objection that was available to the party but omitted from its earlier motion.
Rule 12(h) – Waiving and Preserving Certain Defenses
• 12(h)(1) When Some are Waived (Disfavored)
○ - “A party waives any defense listed in Rule 12(b)(2-5) by:
 - (A) Omitting it from a motion in the circumstances described in 12(b)(2); or,
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 - (B) Failing to either:
○ -(i) make it by motion under this rule; or
 -(ii) include it in a responsive pleading or in an amendment allowed by 15(a)(1)
as a matter of course.”
12(h)(2) When to Raise Others (Favored/ if not raised in pre answe can be in answer, motion to amend pleadings or at trail.)
• “Failure to state a claim upon which relief can be granted, to join a person required by 19(b), or to state a legal defense to a claim
may be raised:
○ - in any pleading allowed or ordered under 7(a).
○ - by any moiton under 12(c).
○ - at trail.
12(h)(3) – Lack of Subject Matter Jurisdiciton- most favored defense
• “If a court determines at anytime that it lack the subject matter jurisdiction, the court may dismiss the action.”
Zielinski v. Philadelphia Piers, Inc. pg 2-3
Rule 8(c) - Affirmative Defenses pg 31
• 8(c)(1) – “ In responding to a pleading a party must affirmatively state any avoidance or affirmative defense including……accord
and satisfaction/ arbitration and award/ assumption of risk/ contributory neg/ discharge in bankruptcy/ duress/ estoppel/ failure of
consideration/ fraud/ illegality/ injury by fellow servant/ laches/ license/ payment/ release/ res judicata/ SOFs/ SOLs/ waiver.
• 8(c)(2) – “If a party mistakenly designates a defense as a counterclaim, or a counter claim as a defense, the court must, if justice
requires, treat the pleading as though it were correctly designated, and may impose terms for doing so.”
• fail to plead affirmative defense = waived
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• look at case law
• look at various tests
○ - whether defense would suppose opponent
○ - whether defense raises issues of fact not appearing on the case of a prior pleading.
Reply
Rule 7(a) – Pleadings pg 29
• “Only these pleadings are allowed:
○ (1) a complaint, (2) an answer to a complaint, (3) an answer to a cross - claim designated as a counter – claim, (4) an
answer to a cross – claim, (5) third party complaint, (6) an answer to a third party complaint; and (7) if the court orders
one, a reply to an answer.”
Rule 7(b) - Motions and Other Papers pg 29
• (1) “A request for a court order must be made by a motion, and must:
○ - (A) be in writing unless made during a hearing or trail
○ - (B) state with particularity the grounds for seeking the order; and,
○ - (C) relief that is sought
• (2) The rules governing captions and other matter of form in pleadings apply to motions and other papers.”
Amendments to Pleadings
Amendments as a matter of course pg 31
• amendments allowed w/o permission of court
• -Rule 15(a)(1) Amending as a matter of course pg 44
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• “A party may amend it’s pleading once as a matter of course.”
○ (A) 21 days after serving it; or,
○ (B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21
days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.”
Amendments NOT as a matter of course pg 44
• - Rule 15(a)(2)- Other Amendments
○ “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.”
Time to Respond to Amendments
- Rule 15(a)(3): Time to Respond pg 44
• “Unless the court orders otherwise, any required response to an amended pleading must be made within the remaining time to
respond to the original pleading or within 14 days after service of the amended pleading, whichever is later.”
Beeck v. Aquaslide N’ Dive Corp. pg 3
Relation Back of Amendments pg44
• Rule 15(c)(1) – When Amendment Relates Back
• “An amendment to a pleading relates back to the date of the original pleading when:
○ (A) The law 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…..”
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○ (C) the amendment changes the party or the naming of the party against whom a claim is asserted if 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.
Relation back of amendments: When changing a party
• Must satisfy rule 15(a)
• Must satisfy Rule 15(c)(1)(B)
• Under Rule 15(c)(1)(c): new party must have:
○ (i) Received such notice of the action and will not be prejudiced in defending on the merits; and
○ (ii) Knew of should have known that the action would have been brought against it, but for a mistake concerning the
proper parties identity.
Bonerb v. Moore pg. 3-4
Discovery
Goals of Discovery
• Enable parties to obtain facts and present cases
• Narrow issues in controversy
• Preserve relevant information that might not be available at trail
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• Promote settlement by allowing parties to access value of case and likelihood of success.
• Make available information on what case can be disposed of in or in part before trail.
Tools of Discovery
• Planning meeting – 26 (f)
• Required disclosures – initial and experts 26(a)(1-2)
• Doc requests--- 26(b)(3) and 34
• Interrogatories – 33
• Dispositions – 32
• Examinations – 35
• Requests for admissions – 36
• Enforcement of discovery – 37
Limits on Discovery
• Relevance – 26(b)
• Privilege- 26(b)
• Work product – 26(b)(3), and Hickman
• Privacy/ Burden / Embarrassment – Protective Order - 26(c).
○ Can object or seek a protective order from court
• Non-testifying Experts – 35 (b)
Relevance
Rule 26(b)(1) pg 73
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• “Unless otherwise limited by court order, the scope of discovery is as follows:
• Parties may obtain discovery regarding any non-privileged matter that is relevant to any of the party’s claims or defenses –
including the existence, description, nature, custody, custom, and location of any documents or any other tangible things and the
identity and location of person who know of any discoverable matter.
• For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action.
Relevant information need not be admissible at trail is the discovery appears reasonably calculated to lead to the discovery of
admissible evidence.
• All discovery is subject to the limitations imposed by Rule 26(b)(2)(C)(i-iii): which allow court to limit if:
○ “(i) if discovery sought is unreasonable cumulative or duplicative, or can be obtained from another source that is more
convenient, less burdensome or expensive
(ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or
○ (iii) the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the
amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of
the discovery in resolving the issues. “
• Thus, discovery is tied to the claims and defenses stated in the pleadings
• Also, whether a fact is relevant depends on the substantive legal framework involved in the case (Steffan v Cheney)
Steffan v Cheney pg ---Navy academy, admisson not activities. Pg 4
Davis v Pre-Coat Metals
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• Ps (afro American and latino employees) suing d employer for wrongful termination and discrimination. D wants to show the
“true” other reasons why actions were taken, other than discrimination. P attempted to discover all discrimination complaint made
against a d by non-clerical / non – administrative employees who worked at the same plant as the ps as well as personnel and
disciplinary files of all non – clerical / non administrative employees who worked who worked at the Chicago plant, ds oppose the
motion, arguing that the discovery requests were overbroad in that they improperly sought info regarding all allegedly
discriminating actions by d. The court concluded that p’s request sought discoverable info and that those request were narrowly
tailored to the specific claims of the case. Under Rule 26(b)(2) a court can limit discovery if it determines, among other things,
that the discovery is unreasonably cumulative or duplicative, obtainable from another source that is more convenient, less burden
some, or less expensive , or the expenses of the likely proposed discovery outweighs its likely benefit. However, other employee’s
complaints of discrimination may be relevant to establish pretext. Court allows discovery
Spoliation
• Spoliation is the destruction or material alteration of evidence or failure to preserve property for another’s use as evidence in
pending or reasonably foreseeable litigation.
○ Duty not to destroy evidence
○ Duty to preserve evidence
○ Especially after you have gained advantage from that evidence.
• The right to impose sanction for spoliation argues from the courts inherent power to control the judicial process and litigation
• Limits:
○ No independent tort action for spoliation
○ No general civil duty against spoliation
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Silvestri v. General Motors Corp.
• P barrowed GM car from landlord, drove car and crashed, airbags didn’t deploy and p was hurt, p’s parents called lawyer who
hired an expert to go and look at car, found default airbags, expert tells lawyer to get GM expert to look at it, but laywer doesn’t
and files sut against GM 3 years later and by that time the car is already fixed and evidence of default airbags destroyed. Cout
dismisses ps claim b.c of spoliation of evidence. P denied access to car, p had expert testimony on report, but d cannot check up
on that report
• “no one has exclusive access to the truth” and only p had accident to the car, d did not. If the car was destroyed by like a fire in
the garage after the accident and p’s expert had already seen car and d had not then different story, or if p’s lawyer gave notivce to
gm and they didn’t respond or show up to look at car, then d would be out of luck.
• “The duty to preserve material evidence arises not only during the discovery process but also extends to the period before the
litigation when a party reasonably should have foreseen that the evidence may be relevant to the anticipated litigation.”
Timeline for Discovery
• D is served or appears in lawsuit
• Court sets 16(b) scheduling conference with 90 days after d;s appearance or 120 days after d is served.
• At least 21 days before scheduling conference, parties hold 26(f) planning conference
• At planning conference, parties may serve discovery requests - Rule 26(f)
• After planning conference, parties may serve discovery requests, and then set depos and examinations.
○ Admissions requested 30 days before discovery ends.
○ SJ deadline after discovery ends
Initial Disclosures
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Rule 26(a)(1)(A) requires parties to disclose:
• (i) “the name and if known, the address and telephone number of each individual likely to have discoverable info – along with the
subject of that information – that the disclosing party may use to support its claims or defenses, unless the use would be solely for
purposes of impeachment.
• (ii) a copy – or description – by category and location – of all documents, electronically stored info, and tangible things that the
disclosing party had in its possession, custody, or control and may use to support its claims or defenses, unless the use would be
solely for purposes of impeachment.
• (iii) a computation of each category of damages claimed by the disclosing party – who must also make available for inspection
and copying as Rule 34 the documents or other evidentiary material, unless privileged or protected from disclosure, on which
each computation is based, including materials bearing on the nature and extent of the injuries suffered; and
• (iv) for inspection and copying as under Rule 34, any insurance agreement under which an insurance business may be liable to
satisfy all or part of the possible judgment in the action or to indemnity or reimburse for the payments made to satisfy the
judgment.
• Brief
• 26(a)(1)(A) requires parties to disclose
○ the location of witnesses and document that they may use to support claims or defenses
 “unless the use would be solely for purposes of impeachment.”
○ A copy of any documents that they may use to support their claims or defenses
○ - “unless the use would be soley for the purposes of impeachment.
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○ Calculation of damages
○ Copies of insurance plans under Rule 34, under which an insurer may be held liable.
• Exchange initial disclosures at, or within 14 days after the parties Rule 26(f) conference
• Must be supplemented – Rule 26(e)
○ Must supplement or correct mistake in a timely manner
Interrogatories
• Rule 33 pg 5
• 33(a)(5) under oath and signed
• 33(a)(1) Unless stipulated or ordered by court, limited to 25, including all discrete subparts, only to parties.
• 33(a)(4)Must state objections w/ specificity
• 33(d)Option to produce business records
• Downside – cant ask follow up questions and attorney’s usually answer them, not clients, and occur early in discovery so don’t
yet know answers.
• Be limited and focused in using interrogatories, gear towards helping rest of discovery.
Admissions
• Rule 36 pg 102
○ Admit only if you do not intend to contest the assertion at trail.
○ Admissions binding only in this lawsuit
○ Admitted if fail to answer / object 36(a)(3)
○ Difference b/t interrogatory and request for admission
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 Interrogatory shed light on facts, bring up areas of dispute, requests for admission removes issues from
controversy or dispute.
Doc Requests – Rule 34 pg 97
• Only to parties, within scope of 26(b)
• Documents is defined broadly
• 34 (c) -Nonparty may be compelled to produce docs as provided in Rule 45.
• 30 days to respond after being served doc request
• No limit on # of doc requests
• Downside to doc requests
○ Have to ask the right questions
○ The opposition might drown you in documents, in which case you will have to got through a ton of documents to find
what you need.
Examinations - Rule 35 pg 101
• Mental or physical condition for which exam is sought must be “in controversy.” 35(a)(1)
• Requires “good cause” – Rule 35(a)(2)(A)
• Only a party or a person within parties custody or legal control
○ This does not included employees
• Party being examined by opponent’s doc has a right to see opponent’s docs report..
○ But if you ask to see their report, which they are forced to show you, then they can ask to see all of your doc reports, and
you are forced to show them as well. 35(b)(3)
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Oral Depositions – Rule 30 (really long….)
Rule 30 pg 87
• Can depose parties and nonparties
• Limited to 10 depos of 7 hrs w/o leave of court of stipulation 30(a)(2)(A)(i).
• Notice may also include Rule 34 doc requests
• Rule 30(b)(6) – Depositions
○ If deposing a corporation and determine the topics that you want to depose the corp. on, like manufacturing, design,
marketing, etc. The corp will select an employee to represent the corp on each topic of the deposition, but corp selects
who will represent corp for each topic
 If you want a particular person then just depo them,
 Useful if big corp and don’t know who knows what.
• Also use depos after going through interrogatories and doc requests so that you know the most possible about the facts
surrounding the case.
• Ask broad questions and let the person talk, then zero in on that witness
○ (here you could possibly hold back on a big question.)
• When you make an objection, no judge sitting there to make a ruling, therefore objections are made for the record, and can be
brought up in trail or on a later ground.
• Objections in Deposition Need to Be:
○ Concise
○ Non – argumentative / non – suggestive
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Instruct client not to answer ONLY WHEN:
• Necessary to preserve privilege
• To enforce a limitation directed by the court, or
• To present monition under Rule 30(d)(3) that depo is being
○ “Conducted in bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses the deponent or party.”
Ensuring Compliance – Rule 26(g) pg 77
• (1) Signature certifies best of knowledge, info, and belief forced after a reasonable inquiry:
○ (A) with respect to disclosure, it is complete and correct as of the time it is made, and
○ (B) with respect to discovery request, response, or objection, it is:
 (i) “consistent with rule and warranted by existing law, or by a nonfrivolous argument for extending,
modifying, or reversing existing law, or for establishing new law;
 not interposed for any improper purpose, such as to harass, cause unnecessary delay, or needlessly
increase the cost of litigation; and
 (iii) neither unreasonable nor unduly burdensome or expensive, considering the needs of the case, prior
discovery in the case, the amount in controversy, and the importance of the issues at stake in the
action.”
• (2) Failure to Sign
○ “Other parties have no duty to act on an unsigned disclosure, request, response, or objection until it is signed, and the
court must strike it unless a signature is promptly supplied after the omission is called to the attorney's or party's
attention.”
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• (3) Sanction for Improper Certification
○ “If a certification violates this rule without substantial justification, the court, on motion or on its own, must impose an
appropriate sanction on the signer, the party on whose behalf the signer was acting, or both. The sanction may include an
order to pay the reasonable expenses, including attorney's fees, caused by the violation.”
Ensuring Compliance – Rule 37 pg 105
• Rule 37(a) - Motion to compel disclosure or discovery pg 105
○ Confer in good faith perquisite
○ Must impose expenses / fees incurred in making the motion unless……
• Rule 37(b) – Fail to Comply with Court Order pg 105
○ Prior order perquisite
○ Variety of severe sanctions possible in addition to expenses / fees.
• Rule 37(c) – Fail to disclose / supplement / admit pg 105
○ (1) Fail to disclose / supplement = not allowed to use info unless failure substantially justified or harmless
 In addition or instead, a court may
 (A) Order payment of reasonable expenses/ (B) inform the jury of the party’s failure, and (C) may impose other
appropriate sanctions, including any of the orders listed in Rule 37(b)(2)(A)(i)-(iv).
○ (2) Fail to admit and later proven genuine / true, may move for expenses in making that proof and court must order
unless:
 (A) “the request was held objectionable under 36(a)
 (B) the admission sought was of no substantial importance
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 (C) the party failing to admit had a reasonable ground to believe that it might prevail on the matter; or
 (D) there was other good reason for the failure to admit.”
• Rule 37(d) – Fail to depo/respond to 33 (intgry) or 34 (doc request) pg 106
○ Confer in good faith perquisite 37(d)(1)(B)
○ Objection no excuse unless protective order filed 37(d)(2)
○ Variety of sanctions / fees 37(d)(3)
• Rule 37(e) pg 107
○ “Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide
electronically stored info lost as a result of the routine, good faith operation of an electronic information system.”
• Rule 37(f) – Fail to join in 26(f) Conference pg 107
○ Fail to participate in good faith in developing and submitting a proper discovery plan
○ A court may impose various sanctions and fees.
Privilege – Rule 26(b)(1) – pg 73
• “Parties may obtain discovery regarding any non-privileged matter that is relevant to any party’s claim or defense…
○ Ex) attorney/client, doctor/patient, spousal, 5th amendment against self incrimination.
○ Privilege can be waived by any person to whom privilege belongs (client/patient)
○ Privilege protects disclosure only from that source; can seek info from non privileged sources,
 So if they tell someone else something privileged b/t you and your doc, can discover from friend.
○ Must claim privilege and describe nature of communication not disclosed – Rule 26(b)(5)(A).
Attorney / Client Privilege
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• Where legal advice of any kind is sought
• From a professional legal advisor in capacity as such
• The communication refers to that purpose (legal advice)
• Made in confidence w/o the presence of strangers and kept in confidence.
• By a person who is or sought to become a client
• Not for purposes of committing a crime or tort
• Privilege has to be claimed and not waived by client
• Bar to discovery – no matter how compelling the need
• INFORMATION IS NOT PRIVILEGED, ONLY THE COMMUNICATION ITSELF!
Upjohn v. U.S.
• Council for p (Upjohn) conducted confidential investigation of the companies international offices following report that some
foreign managers were making “questionable payments” to various foreign government officials in violation of U.S. Law.
Council interviewed many of the foreign managers and employees, to find out what was going on, questionnaires always stating
highly confidential. P discovers that payments were made and voluntarily admits to the IRS, IRS investigation, p just lists all the
questioners, notes, and documents from its investigation, but doesn’t disclose them. IRS subpoenas p asking for all questioners,
notes, and docs from p’s investigation, p objects arguing attorney/client privilege. COA denied ps objection, stating that
attorney/client privilege only applies to the “control group” or upper management and executives who are in “control” of the
company, and orders p to disclose, p does not, goes to us supreme. Supreme reverses COA decision and rejects the “control
group” test, stating it denies point of attorney/client privilege, which is to get info to give legal advice and employees wont talk if
they are not protected.
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Upjohn Test : Court’s for attorney/client privilege for corporations:
• Information is needed to supply basis of legal advice
• Communication concerns matters within he scope of the employee’s duties
• Employees know that they are being questioned so company can obtain legal advice
• Employees understand that the communication is confidential
• Upjohn extended attorney client privilege further through the corp.
• FEDERAL PRIVILEGE ONLY – NOT ALL STATES FOLLOW UPJOHN!
• Can corps like Upjohn for example fire or discipline an employee who admits to making illegal payments?
○ Yes, it is not the employees privilege, it is the corporations privilege and they have the right to waive it at any time.
Attorney works for corp, not for employee, so corp can waive its privilege at any time and fire employee.
Work Product Doctrine
• 26(b)(3)
○ the idea that what you have prepared for litigation should not have to be turned over to your opponent. The idea behind it
is that your thoughts and preparation for a case are yours and you should not be required to give the benefit of your hard
work to your opponent
○ work product = anything attorney does in prep 4 a case
○ exception
 if cant be obtained by other means, and show substantial need for info
 party trying to get info has duty to show substantial need and cant get it by other means
○ can never discover thoughts of an attorney
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Work Product – Rule 26(b)(3) pg 73
26(b)(3) Trial Preparation: Materials. (Codified after Hickman)
○ (A) “Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or
for trial by or for another party or its representative “(including the other party's attorney, consultant, agent etc).
○ But, subject to Rule 26(b)(4), those materials may be discovered if:
 (i) they are otherwise discoverable under Rule 26(b)(1); and
 (ii) the party shows substantial need for the materials to prepare its case and cannot, without undue hardship,
obtain their substantial equivalent by other means.
○ (B) Protection Against Disclosure. If the court orders discovery of those materials, it must protect against disclosure of
the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning
the litigation.
○ (C) Previous Statement. Any party or other person may obtain their own previous statement.
Hickman v. Taylor
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• Tugboat sank killing 5 crew members, Hickman (p) brought suit for wrongful death as a rep of one of the deceased against the
owner of the tugboat Taylor (d). The 4 survivors of the tugboat accident testified at a public hearing b4 the U.S. steamboat
inspectors and there testimony was recorded and made available to all the parties. D conducted their own interviews of the
survivors and other info regarding the accident. D answered all interrogatories except for one asking for a summary of statements
obtained in the course of their own interviews, d objected to the requested summary b/c pertained to “privileged matter obtained
in preparation of litigation” and was therefore privileged. P objected and district court held that the requested info was not
privileged and ordered d to produce it, d attorney refused to comply, and was held in contempt of court, d appealed and COA
reversed. Supreme Court granted writ of certiorari, Supreme sort of rule:
• “There must be some showing of necessity or justification by the party seeking its discovery. If relevant and nonprivileged facts
remain hidden in an attorney’s file and the production of those facts is essential to the preparation of a case, discovery may be
made”.
• Supreme court stated that the info was available to p, could get same info from the survivors testimony at us steamboat inspectors,
could have gotten info from deposing the survivors themselves. It is not like has an advantage, p could obtain the same info on its
own, its not like the d interviewed all the survivors and then they all died before hearing in front of us steamboat inspectors, and p
had no way of obtaining info, rather p can still obtain info if they want to, Court held this was work product and there was no
showing of necessity or need here. Held for d.
How does Rule 26(b)(3) differ from Hickman?
• 26(b)(3)A) – extends to representatives (consultant, surety, agent)
• 26(b)(3)(A) – documents and tangible things
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• 26(b)(3) would not provide ds attorney any basis for refusing in a deposition to answer questions about what he recalled of his
witness interviews, but Hickman would.
• 26(b)(3)(C) any party or other person may obtain their own previous statement.
Experts : Amended Rule 26(a)(2)
• (A) Must disclose experts who may testify at trail
• (B) “Unless otherwise stipulated or ordered… this disclosure must be accompanied by a written report ….. if the witness is one
retained... to provide expert testimony … or one whose duties as the party's employee regularly involve giving expert testimony.
• The report must contain:
○ (i) Statement of all opinions and basis/reasons for opinions
○ (ii) facts or data considered
○ (iii) exhibits that will be used;
○ (iv qualifications, (including list of publications authored in the previous 10 years)
○ (v) a list of all other cases in which testified at trial or by deposition in past 4 years ; and
○ (vi) compensation paid for the study and testimony.
• (C) “Unless otherwise stipulated or ordered …, if the witness is not required to provide a written report, this disclosure must state:
○ (i) the subject matter on which the witness is expected to present evidence under FRE 702, 703, or 705; and
○ (ii) a summary of the facts and opinions to which the witness is expected to testify.”
• (D) Must make disclosure as ordered by the court. Absent a stipulation or a court order, disclosures must be made at least 90 days
before trial or, if rebuttal, 30 days after other’s disclosure.
• (E) “The parties must supplement these disclosures when required under Rule 26(e).”
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Experts: Amended Rule 26
• (A) May depose any identified testifying expert. If report required, depose only after report is provided.
• (B) Trial preparation protection for draft reports or disclosures.
• (C) Trial preparation protection for communications between a party’s attorney and expert witnesses “except to the extent that the
communications
○ (i) relate to compensation for the expert’s study or testimony;
○ (ii) identify facts or data that the party’s attorney provided and that the expert considered in forming the opinions to be
expressed; or
○ (iii) identify assumptions that the party’s attorney provided and that the expert relied on in forming the opinions to be
expressed.”
• (D) “Ordinarily, a party may not … discover facts known or opinions held by an expert who has been retained or specially
employed by another party in anticipation of litigation or to prepare for trial and who is not expected to be called as a witness at
trial. But a party may do so only:
○ (i) as provided in Rule 35(b); or
○ (ii) on showing exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on the
same subject by other means.”
• (E) Party seeking discovery pays the expert a reasonable fee
Thompson v. Haskell Co.
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• P alleges that b.c of sexual harassment suit against her by her coworker Zora, p was reduced to a severely depressed state, her
employment was terminated when she did not accept the advances of a co-worker. P was fired on 6-5-92 and on 6-15-92 she was
examined by Dr. Lucas. P sought to shield from discovery documents related to her that were in the possession of her
psychologist Dr. L, p claimed that dr. L was retained by her previous council to perform a diagnostic review and personality
profile after and that after seeing p on one occasion, prepared a report for her prior counsel, p sought protective order, court
denied ps motion for protective order – saying no other comparable report was prepared during the weeks following ps discharge,
only dr. L’s, and unfair for d
○ When there are exceptional circumstances favoring a disclosure of a psychologists report prepared prior to litigation, a
protective order should be denied when the disagreeing party could or can not obtain comparable info through any other
means.
Chiquita International Ltd. v M/V Bolero Reefer
• P sued d (boat owners) for cargo loss and damages aboard the M/V Bolero (d’s ship). P alleged that d was engaged to transport
bananas from Ecuador to Germany, due to alleged malfunctions of the vessel’s loading crane, 43,000 boxes of bananas due to be
shipped were left behind, d submitted an application to compel discovery of Winer, a marine surveyor who examined the vessel
and loading gear at p’s request shortly after the vessel arrived in Germany. D sought Winers disposition and production of the file
he assembled in connection w/ his inspection, p objected on the grounds that Winer was a non-testifying expert, as to whom
discovery is closely circumscribed by FRCP 26(b)(4)(B) (at that time). D argued Winer is a fact witness rather than an expert.
• Court held that winer was a non testifying expert and denied ds application to compel depo of W. While p was order to produce
winer’s files that did not retain to his observations and opinions
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• Under FRCP, a non testifying expert is generally immune from discovery. The rule precludes discovery of facts known or
opinions held by a non testifying expert. The relevant distinction is not b/t fact and opinion testimony, but b/t those witnesses
whose infor was obtained in the normal course of buiness and those who were hired to make an evaluation in connection with the
expected litigation.
• Differences b/t Thompson and Chiquita
○ In t, initial exam occurred 10 days after event, and d could no get one until much later, and could not get same infor as p,
so court let d discovery p’s infor
○ In C, d controls and owns the ship, they could have easily obtained info on their own, could have hired their own expert,
but this didn’t and it’s their own fault so court denies.
Protective Orders
Rule 26(c)(1) pg 75
• “A party or any person from whom discovery is sought may move for a protective order …. The court may, for good cause, issue
an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense . . .”
○ Must certify conferred with affected parties first
• Rule 26(c)(1)(A-H) shows range of potential protective orders
Stalnaker v Kmart Corp. pg. 4
Mental and Physical Examinations – Rule 35 pg.101
- Rule 35 – requires affirmative showing for each condition as to which exam is sough
• (1) that the condition is in controversy
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○ (pleadings often put condition into controversy.)
• (2) that good cause exists
○ (point to evidence in the record)
CANNOT FORCE EXAM
• See rule 37(b)(2)(A)(vii) and 37(b)(2)(B)
• Can impose sanctions in Rule 37(b)(2)(a)(i-vi)
Discovery Abuses
2 main sources of sanctions
• Rule 37 pg 105
• Rule 26(g) pg 77
Under Rule 37 you can seek one-by-one motions to compel
• Or you can just put together and send one massive motion.
○ This allows you to really “show” what the other side is doing
Electronic Discovery
• 26(b)(2)(B) pg 73
○ need not provide discovery of electronically stored info from sources identified as not necessarily assessable b/c of under
burden or cost, but court may nonetheless order discovery if good cause shown
• 26(f)(2) pg 76
○ planning conference – discuss preserving discoverable info
• 26(f)(3)(c) pg. 77
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○ discovery plan “any issues about…..discovery of electronically stored info, including the form……in which it should be
produced.”
• 37(e) pg. 107
○ “Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide
electronically stored info lost as a result of the routine, good faith operation of a electronic info system.”
• 34(a)(1)(a) pg. 97
○ may request “electronically stored information.”
• 34(b)(2)(D) pg 98
○ may object to the requested form for producing electronically stored info, but must state form intended to use instead
• 34(b)(2)(E) pg 98
○ unless otherwise stipulated or ordered
○ “A party must provide documents as they are kept in the usual course of business or must organize … to correspond …to
request;
○ if a request does not specify a form for providing electronically stored info, a party must produce it in a form in which it
is ordinarily maintained or in a reasonably useful form ….; and
○ a party need not produce the same electronically stored info in more than one form.
Zubulake v UBS Warburg LLP pg. 4-5
Aquilar v. Ice pg 5
Default Judgment – Rule 55 pg 134
• Request clerk enter a default when opponent fails to plead or otherwise defend—Rule 55(a)
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○ Appearance: A side is said to have “appeared” if it has done anything to show that they are aware of the case
○ Sum Certain: No appearance by opponent and damages are easy to calculate: Clerk can enter judgment
○ Non Sum Certain: When no appearance by opponent and damages are not obvious (i.e. emotional distress): Judge hears
evidence
• If opponent has appeared, you must notify the other side that you are seeking default judgment (55(b))
• You cannot get a default judgment if:
○ Suing the government
○ Suing a minor
• To get a default judgment set aside D must (Rule 60(b)):
○ Make a motion to set aside the default judgment and say why he didn’t answer the complaint. There must be good cause
(honest mistake, illness, never received notice, etc)
• Courts do not like default judgments b/c they are decisions not on the merits
• Even if D has no real defense to the complaint, a court should grant request to remove default judgment to ensure D gets due
process
Involuntary Dismissal
Rule 41(b) pg 111
• Dismissal for plaintiff’s failure to prosecute or to comply with rules or orders of the court
• Dismissal is on the merits unless dismissal states otherwise
• Other side or court may make motions
• Dismissal is with prejudice (cannot re-file)
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Voluntary Dismissal
Rule 41(a) pg 110
• Rule 41(a)(1): Plaintiff can voluntarily dismiss without seeking order from court
○ Before opponent serves answer
○ By stipulation signed by all parties
○ Dismissal is without prejudice the first time
• Rule 41(a)(2): Otherwise by court order
○ Dismissal is without prejudice unless dismissal order states otherwise
Summary Judgment
Rule 56
• 56(c)
○ “the court shall grant SJ if the movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.
 Can move for SJ on the entire case or just part of it
When NON-moving party has burden of proof at trail:
• 1) SJ movant may submit affirmative evidence that negates an essential element of the nonmoving party’s claim.
○ In Celotex, ∆ could have submitted evidence showing that its company never manufactured asbestos products.
• 2) SJ movant may demonstrate, by reviewing the record, that the nonmoving party’s evidence is insufficient to establish an
essential element of the nonmoving party’s claim.
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○ In Celotex, ∆ submitted evidence that plaintiff had no witness who could testify that decedent was exposed to its
products.
When moving part has the burden of proof at trail:
• SJ movant must support motion with credible evidence that would entitle it to judgment if not controverter at trial
• In other words, SJ movant must produce evidence to prove every element of claim
○ If plaintiff in Celotex moved for summary judgment, plaintiff would have to submit evidence showing that Celotex’s
product was defective, that decedent was exposed to Celotex’s product, and that Celotex’s product caused decedent’s
death.
Summary Judgment: Affidavits
• Rule 56(c)(4):
○ “An affidavit… used to support or oppose a motion must be made on personal knowledge, set out facts that would be
admissible in evidence, and show that the affiant … is competent to testify on the matters stated.”
• Has to be first hand knowledge
○ Explanation of facts not just conclusions
○ States specifics (date, time, everything about it)
Summary Judgment: Timing
• Rule 56(b): “Unless … the court orders otherwise, a party may file a motion for summary judgment at any time until 30 days after
the close of all discovery.”
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• Rule 56(d): “If a nonmovant shows by affidavit … that, for specified reasons, it cannot present facts essential to justify its
opposition, the court may:
○ (1) defer considering the motion or deny it;
○ (2) allow time to obtain affidavits … or to take discovery; or
○ (3) issue any other appropriate order.”
Celotext corp v Catrett pg. 5
Adickes pg. 6
Summary Judgment – Burdens
• Once movant (i.e., party moving for SJ) meets its initial burden of production to show that no genuine dispute as to any material
fact exists and that it is entitled to judgment as a matter of law, the burden of production shifts to the nonmoving party (i.e., party
opposing SJ) who must set forth specific facts showing there is a genuine dispute for trial.
• The burden of persuasion (to persuade the court that no genuine dispute as to any material fact exists and that it is entitled to
judgment as a matter of law) always remains with the moving party
Summary Judgment – Supporting Factual Positions
Rule 56(c)(1): “A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
• (A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information,
affidavits or declarations, stipulations …, admissions, interrogatory answers, or other materials; or
• (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot
produce admissible evidence to support the fact.”
Bias v. Advantage International, Inc. pg. 6-7
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Pretrial Conferences – Rule 16 pg 46
• Rule 16(a): Pretrial conferences at judge’s discretion
• Rule 16(b): Scheduling order
• Rule 16(c)(2): Matters for consideration at pretrial conf
○ Note the variety of matters that the court may consider
• Rule 16(d): Pretrial Orders
○ Entered after any pretrial conference
○ Controls course of action unless court modifies it
• Rule 16(e): Final Pretrial Conference
○ Held close to trial to formulate a plan for trial
○ Attorney who will conduct the trial for each party must attend
○ This Pretrial Order modified “only to prevent manifest injustice”
Rule 16(f) – Sanctions pg 48
• (1)“On motion or on its own, the court may issue any just orders, including those authorized by Rule 37(b)(2)(A)(ii-vii), if a party
or its attorney:
○ (A) fails to appear at a scheduling or other pretrial conference;
○ (B) is substantially unprepared to participate – or does not participate in good faith – in the conference; or
○ (C) fails to obey a scheduling or other pretrial order.”
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• (2) “Instead of or in addition to any other sanction, the court must order the party, its attorney, or both to pay the reasonable
expenses – including attorney’s fees – incurred because of any noncompliance with this rule, unless the noncompliance was
substantially justified or other circumstances make an award of expenses unjust.”
Sanders v. Union Pacific Railroad Co. pg. 7
Mckey v. Fairbain pg. 7-8
Reid v. San Pedro pg. 8
Right to a Jury Trail
• 7th Amendment – only applies in federal court
○ “In suits at common law, … the right of trial by jury shall be preserved . . . .”
• Preserves right to jury trial existing in 1791
○ Common law = right to jury trial
 Most money damages cases, ejectment, and replevin
○ Chancery/equity = no right to jury trial
 Injunctions, specific performance, reformation, rescission, accountings, monetary relief when restitutionary
(e.g., disgorgement) or when incidental to injunctive relief
• Must demand jury trial – Rule 38
Cases Existing in 1791
• Common law = right to jury trial
○ Most money damages cases, but not all
 Ejectment
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 Replevin
 Habeas corpus, mandamus, prohibition, and certiorari
• Chancery/equity = no right to jury trial
○ Injunctions
○ Specific performance
○ Reformation and rescission
○ Accountings
○ Class actions and derivative suits (since modified)
○ Monetary relief when restitutionary (e.g., disgorgement)
○ Monetary relief when incidental to injunctive relief
Applying 7th Amendment to New Claims
• (1) If new statute, statute may give guidance
• (2) Otherwise find legal/equitable analogy – Chauffeurs
○ Nature of issues involved, and
○ Relief sought – more important inquiry
Applying 7th Amendment when case involves both legal and equitable claims/defenses – Amoco
• (1) First, legal claims are tried to the jury
○ Jury decides common fact issues
• (2) Second, judge hears equitable claims
○ Judge bound by jury’s common fact determinations
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• Amoco v. Torcomian
• Chauffers
7th Amendment and Administrative Agencies
• If Congress creates a new right and entrusts its enforcement entirely to an administrative agency, absence of a jury does not
violate 7th Amendment.
• Court still has discretion to permit jury under 39(b).
• Congress can expand the right to jury trail but cannot contract that right under the 7th amendment
• If a right to jury trail is not demanded, it is waived under 38(d)
• Party must demand jury trail in writing any time after start of action no later than 10 days after service of last pleading to such
issue 38(b).
Choosing Juries
• 6-12 people sit on federal juries – Rule 48(a)
• Unless parties stipulate otherwise, a unanimous jury verdict is required – Rule 48(b)
• Jury selection pools are to represent fair cross sections of the community – 28 U.S.C. §1861 pg 380
• Specific protection for race, color, religion, sex, national origin, and economic status – 28 U.S.C. §1862 pg 381
• For another group, is it a sufficiently distinct group to warrant proportional inclusion on juries?
• To challenge jury pool, must do so before voir dire (or 7 days after could have discovered problem) – 28 U.S.C. §1867(c). pg 388
Challenging Juries
• Challenges for cause – unlimited
• Standard for challenging a verdict based on inaccurate voir dire answers
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○ 1.Juror failed to honestly answer a material question &
○ 2.Correct response would have provided a basis for challenge for cause
• Peremptory challenges – typically 3 per side
• Limit on use of peremptory challenges: Batson Procedure
○ 1.Prima facie case showing pattern of using peremptory challenges based on race/gender
○ 2.Other side now must justify challenges based on race/gender neutral explanation
Thompson v. Altheimer & Gray pg. 8-9
Limits of peremptory challenges – Batson Procedure
• Batson Procedure
○ 1) Prima facie case showing pattern of using peremptory challenges based on race/gender
○ 2) Other side now must justify challenges based on race/gender neutral explanation
 Batson – criminal case, race discrimination
 Edmonson – civil case, race discrimination
 J.E.B. – extends to gender
Judgment as a Matter of Law (JML)– previously called “directed verdict”
• Rule 50(a) pg 122
○ 1)“If a party has been fully heard on an issue during a jury trial and 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:
 (A) resolve the issue against the party; and
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 (B) grant a motion for judgment as a matter of law against the party on a claim or defense that, under the
controlling law, can be maintained or defeated only with a favorable finding on that issue.
○ 2) A motion for judgment as a matter of law may be made at any time before the case is submitted to the jury....”
• Rule 50(a)(1) standard for granting JML:
○ “a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue”
○ Applying that standard when D moves for JML after P’s case, the court must decide whether P has met its burden of
production – if not, JML may be granted
○ Applying that standard when D moves for JML at close of all the evidence, the court must decide
 If there is substantial evidence of such quality and weight that a reasonable jury might reach different
conclusions, JML should be denied and the case submitted to the jury
 If evidence so overwhelmingly favors D that reasonable jury could not reach contrary verdict, JML may be
granted
Penn Railroad v. Chamberlain pg. back
Renewed Motion for JML – previously called judgment notwithstanding the verdict (JNOV)
• Rule 50(b): “If the court does not grant a motion for judgment as a matter of law made under Rule 50(a), the court is considered
to have submitted the action to the jury subject to the court’s later deciding the legal questions raised by the motion. No later than
28 days after the entry of judgment . . . the movant may file a renewed motion for judgment as a matter of law and may include an
alternative or joint request for a new trial under Rule 59. In ruling on the renewed motion, the court may:
○ 1) allow judgment on the verdict, if the jury returned a verdict;
○ 2) order a new trial; or
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○ 3) direct the entry of judgment as a matter of law.”
• Rule 50(b):
○ To renew, must make motion for JML before case submitted to jury and then file renewed motion for JML within 28
days after entry of judgment
○ Renewing earlier motion for JML, so Rule 50(a) standard still applies
○ May include a request for a new trial with renewed motion for JML
○ In ruling on the renewed motion, the court may:
 1) allow judgment on the jury’s verdict;
 2) order a new trial; or
 3) direct the entry of judgment as a matter of law.
Motion for A New Trail
• Rule 59 pg 139
○ (b) Move for new trial within 28 days after entry of judgment
○ (d) Court on its own may order new trial within 28 days after entry of judgment – must specify reasons
• Reasons for granting new trials (case law):
○ Flawed procedure – inadmissible evidence presented, or bad juruor
○ Flawed verdict – against great weight of evidence
• Standard for deciding a new trial motion alleging flawed verdict:
○ Miscarriage of justice; a seriously erroneous result – see Lind v. Schenley Indus.
Lind v. Schenley pg.9
47
Conditional Rulings on New Trail Motions
• Rule 50(c)(1): pg 123
○ If the court grants a renewed motion for JML, it must conditionally rule on any motion for a new trial – in case the JML
is later reversed.
• Rule 50(c)(2): pg 123
○ If court conditionally grants a new trial, it does not affect the finality of the JML – if the JML is reversed, the new trial
occurs unless the appellate court orders otherwise.
○ If court conditionally denies a new trial, the appellee (i.e., the party granted JML) may assert error in that denial – if the
JML is reversed, the case proceeds as the appellate court orders.
Later New Trail Motions
• Rule 50(d): pg 123
○ A party against whom JML is entered (i.e., the party who won the jury verdict and opposed JML) can file a new trial
motion within 28 days.
• Rule 50(e): pg 123
○ If trial court denies JML, the prevailing party may, as appellee (i.e., the party who won the jury verdict and opposed
JML), assert grounds entitling it to a new trial should the appellate court conclude that the trial court erred in denying the
JML motion.
○ If appellate court reverses the judgment, it may order new trial, direct trial court to determine if new trial should be
granted, or direct entry of judgment.
Appeals
48
• Who can appeal?
○ Losing party
 Party receiving adverse judgment (i.e., judgment granting relief different from that requested).
 But Mootness Doctrine says cannot appeal from judgment when circumstances have changed such that relief is
no longer possible (e.g., settlement), unless exception applies.
• Who raised the issue below?
○ Must present objection to trial court or waived
○ Exceptions: Affirm on any ground, change in law during pendency of appeal, plain error
JML/ NEW TRAIL/ APPEAL
• Jury verdict for P, trial court denies D’s renewed JML motion and denies D’s new trial motion
• D appeals (called appellant)
• Argues for reversal of jury verdict & entry of judgment for D
• Also can argue trial court erred in denying new trial motion
• P (called appellee) Defends jury verdict and wants it affirmed
• May assert grounds for a new trial should appeals court decide trial court erred in denying JML motion – Rule 50(e)
• Then if appellate court reverses judgment, it may order new trial, direct trial court to determine if new trial should be granted, or
direct the entry of judgment – Rule 50(e)
• Same except trial court grants D’s new trial motion
• Not immediately appealable – new trial must be held
OR
49
JML/New Trail/ Appeal
• Jury verdict for P, trial court grants D’s renewed JML motion and conditionally denies D’s new trial motion
• P can file new trial motion 28 days after JML – Rule 50(d)
• Trial court conditionally rules on new trial – Rule 50(c)(1)
• P appeals – argues JML reversed & jury verdict reinstated
• D as appellee will defend JML and want it affirmed
• D can also argue trial court erred in denying new trial motion, so if JML is reversed then case proceeds as appellate court orders –
Rule 50(c)(2)
• Same except trial court conditionally grants new trial
• P can again file new trial motion – Rule 50(d)
• P appeals – argues same as above and against a new trial
• If JML reversed, new trial held unless appellate court orders otherwise – Rule 50(c)(2)
When may a decision be appealed?
• Final Judgment Rule:
• Generally can appeal only final judgments
• A final judgment ends litigation on the merits and leaves nothing for the trial court to do but execute the judgment
• 28 U.S.C. §1291: “The courts of appeals ... shall have jurisdiction of appeals from all final decisions of the district courts of the
United States ....”
Liberty Mutual Ins Co. v. Wetzel pg.9
Exceptions to Final Judgment Rule
50
• Rule 54(b): pg 131
○ “When an action presents more than one claim for relief … or when multiple parties are involved, the court may direct
the entry of a final judgment as to one or more, but fewer than all, claims or parties only if the court expressly determines
that there is no just reason for delay. …”
• 28 U.S.C. §1292(a) pg 335
○ “. . . the courts 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 . . . .”
• 28 U.S.C. §1292(b) pg 335
○ Trial court must certify that:
 1) such order involves a controlling question of law
 2) as to which there is substantial ground for difference of opinion and
 3) an immediate appeal from the order may materially advance the ultimate termination of the litigation.
 Appellate court may, in its discretion, permit an appeal if application is made to it within 10 days after entry of
the order.
• Collateral order doctrine (Cohen)
• Writ of mandamus
Laura lines v. Chasser (Cohen ) pg 9
Anderson v. Bessemer City pg.10
Scope of Review
51
• Factual findings
○ Reviewed under clearly erroneous standard
○ Rule 52(a)(6) pg 126
• Legal issues/conclusions of law
○ Reviewed under de novo standard
• Harmless error
○ 28 U.S.C. §2111: courts cannot reverse for “errors or defects that do not affect the substantial rights of the parties”
○ Rule 61: “At every stage of the proceeding, the court must disregard all errors and defects that do not affect any party’s
substantial rights.”
Substitutionary Remedies
• Most remedies are substitutionary
• Money damages are the most common substitutionary remedy
○ Economic damages – things you can put a $ value on
○ Non economic damages – things hard to put a $ value on (like pain and suffering)
Liquidated, Statutory, and Punitive Damages
Liquidated – parties agree before hand to calculation of damages
• -Typically for breach of contract
• -Court may not enforce if unreasonably large
Statutory – set minimum damages not tied to amount of loss suffered
• -E.g. $1000 for violation of statute
52
• -Encourages enforcement of public policy
Punitive –
• - Aimed at punishing d
• - Subject to due process challenge if excessively large.
Specific Remedies
-Specific performance -recession/reformation/cancelation
-Abetment -accounting
-Replevin -injunction (Two types)
-constructive trust 1.pure injunction
2. Preliminary injunction
53

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Civil Procedure Fall 2010 Outline

• -Rule 37 governs procedure.

• -Temporary Restraining Orders (TROs)

• -Attachments and garnishment

• -Rule 65 governs procedure of TROs and preliminary injunctions.

Preliminary Injunction Test

• P will likely suffer irreparable injure if injunctive relief is not granted.

• P will likely prevail on merits

• Granting the injunction is in public’s interest

• -Point of a preliminary injunction is to hold the status quo.

• Must (1) give notice and (2) an opportunity to be heard (hearing).

Mathews v. Elderidge – Factors to determine exceptions to Fuentes

• (Whether a person has received a “process that constitution finds “due”).

○ 1. The private interest that will be affected the official action.

○ 3. The Government’s interest, including function involved in the fiscal and

administrative burdens of additional procedural safeguards.

opportunity to be heard” at a “meaningful time and in a meaningful manner.”

public health and create a large burden on government.

Temporary Restraining Orders

Federal Rules of Civil Procedure

determination of every action and proceeding.”

 -“There is one form of action – the civil action.

• Rule 7(a) pg 29: “Only these pleadings are allowed:

○ -An answer to a complain

○ -An answer to a counterclaim designated as a counterclaim

○ -An answer to a cross claim

○ -A third party complaint

• Rule 8(a) pg 30:

○ -“A pleading that states a claim for relief must contain:

needs no knew support.

○ To give notice to d of being served and what for

○ Gateway to discovery and entire pretrial process

○ Way of narrowing the issues and getting rid of faceless claims

• A claim can fail under Rule 8(a) when:

no constitutionally protected Interest in continued employment, supreme says he does.

 -So p can go to trail but hasn’t won yet.

• Permitted under Rule 8(d)(2-3) pg 31

○ - Rule 8(d)(2) Alternative Statements of a Claim or Defense.

○ -Rule 8(d)(3) - Inconsistent Claims or Defenses.

Bell Atlantic v. Twombly (2007)

• District court dismisses, COA reverses, Supreme dismisses

• P must plead facts suggesting an agreement was made b/t the ds

Twombly quotes on Rule 8 pleading requirements

• -“requires more than labels and conclusions”

• - “a formulaic recitation of the elements of a cause of action will not do.”

• - “factual allegations must raise a right to relief above speculative level.”

Stradford v. Zurich Insurance Co.

Heightened Pleading Standard

impacts p b/c have to show more to get past pleadings.

Allocating the Elements

• 3 burdens, pleading, production, and persuasion

○ -courts consider policy, fairness, access, etc.

• if statutory claim, focus on linguistic cues.

Jones v. Bock pg. 1

Ethical limitations – Rule 11

after an inquiry reasonable under the circumstances that:

investigation and discovery, and

reasonably based on a belief or a lack of info.

• Rule 11(c) –pg 34

○ (2) motion can be made by opposing party or,

○ (3) by the court.

○ - Rule 11 not applicable to discovery process.