Civil Procedure Outline

1. Real exam questions: a. What street did Prof. Perish grow upon? i. Overstone b. DC case i. Orbitz

2. Pleadings
a. Complaints
i. ii. iii. iv. Puts parties on notice of claims and defenses Permits the quick disposal of complaints which suffer from serious defects or from which the law provides no redress Shapes the discovery process 1. Guides the courts/parties in the conduct of the case Problems with the writ system 1. Very formulaic and rigid 2. Complicated 3. Insufficient and sometimes strange results 4. No discovery a. Could lose once you learn he facts at trial

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Rule 8--Modern Pleadings (notice) 1. Claim for relief must contain:

a. Short plain statement of the courts jurisdiction (form 7) i. Subject matter jurisdiction b. Short plain statement of the claim showing the pleader is entitled to relief (form 11) i. Invoke a body of substantive law and sketch out a factual scenario, that, if shown to be true, would lead to a recognition of a right to relief 1. Must be legally sufficient (Body of law) 2. Must be factually sufficient (Elements of claim) 1. State facts that could plausibly suggest there was misconduct or unlawful activity c. Demand for the relief sought i. May include relief in the alternative or different types of relief

2. Defenses; Admissions; Denials

a. In responding to a plea, a party must i. State in short and plain terms its defenses to each claim asserted; and ii. Admit or deny the allegations b. Denials must fairly respond to the substance of the allegation c. General denials i. Party intends in good faith to deny all of the allegations of the pleading, including jurisdiction d. Specific denial i. Party does not intend to deny all the allegations 1. Specifically deny designated allegations 2. Generally deny all except those specifically admitted e. Denying part of an allegation i. In good faith must admit the part that is true and deny the rest f. If a part lacks knowledge or information sufficient to form a belief must state so i. Acts as a denial g. Effect of failing to deny Civil Procedure 1

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If a responsive pleading is required and is not denied, is admitted except for amount of damages If a responsive pleading is not required, an allegation is considered denied or avoided

3. Affirmative defenses
a. In general, In responding to a pleading, a party must affirmatively state any avoidance of affirmative defense, including: i. Accord and satisfaction; arbitration and award; assumption of risk; contributory negligence; discharge in bankruptcy; duress; estoppel; failure of consideration; fraud; illegality; injury by fellow servant; laches; license; payment; release; res judicata; statute of frauds; statute of limitation; waiver b. Mistaken designation i. If a party mistakenly designates a defense as a counterclaim, or a counterclaim as a defense, the court must, if justice requires, treat the pleading as though it was correctly designated, and may impose terms in doing so

4. Pleading to be precise and direct, Alternative statements, Inconsistency

a. In general, each allegation must be simple, concise, and direct. No technical form is required. b. Alternative Statements of a Claim or Defense i. A party may set two or more statements of a claim or a defense alternatively or hypothetically, either in a single count or defense or separate ones. If a party makes alternative statements, the pleading is sufficient if any one of them is sufficient. c. Inconsistent Claims or Defenses i. A party may state as many separate claims or defenses as it has, regardless of consistency 5. Construing Pleadings a. Pleadings must be construed as to do justice Dioguardi v Durning CB 293 1. Home drafted complaint by immigrant for the value of his imported tonics 2. FRCP 8 must be pretty lenient as evidenced by this case

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Specificity
1. Bell Atlantic v Twombly CB 298 (factual sufficiency) a. P sues baby bells for conspiring to stay out of each others markets b. As a matter of substantive law, to prove an Anti-trust violation, P must prove parallel conduct and some plus factor ( agreement in a smoke filled room) to be successful at trial c. P failed to state a plausible claim since there was no plus factor identified. There must be enough facts to state a claim to relief that is plausible on its face, not merely conceivable. i. A court must accept as true all allegations in a complaint except for legal conclusions as conclusions will not unlock the door to discovery ii. The factual statements are scrutinized by the plausibility test iii. Only a claim that states a plausible claim for relief survives a motion to dismiss d. P doesnt even get a chance to try and prove his case since he didnt have the plus factory required in an Anti-Trust suit. 2. Ashcroft v Iqbal CB Supp (factual sufficiency) a. Alleged Ashcroft and Mueller had a policy allowing Muslim Iqbal's rights to be violated. b. Must prove they purposely created the policy to discriminate against Muslims c. The complaint is deficient under R8 and therefore doesnt move on to discovery i. Even though it can be proven that Muslims were treated differently after 9/11, it cannot be shown that that was the motive here. Civil Procedure 2

ii. The standard of plausibility applies to all cases iii. Legal conclusions are irrelevant d. Did Iqbal change the standard? i. If it did, there would be many more motions to dismiss that have better chances of winning after Iqbal, and now everyone brings motions to dismiss. Some say it didnt change the standard, but attorneys do because P's are pleading more facts, but obviously they aren't pleading enough because defendants are bring a lot more motions to dismiss when previously they wouldnt have even wasted their time. e. Perrish thinks this case was wrongly decided and if P was different, the case would be decided differently 3. Arguments for the decisions of Twombly and Iqbal a. Correct i. Not a big change; stops frivolous claims (p); efficiency (p); limited resources (p) b. Incorrect i. Imposable to meet in information asymmetry (p); excludes good claims (p); inconsistent with precedent; courts become legislative;

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Specificity Requirements are heightened in Certain Cases 1. Rule 9 -- pleading special matters
a. Except where required to show the court has jurisdiction, a pleading need not allege: i. A party's capacity to sue or be sued; ii. A parties authority to sue or be sued in a representative capacity; or iii. The legal existence of an organized association of persons that is made a party b. To raise any of those issues, a party must do so by a specific denial, which must state any supporting facts that are peculiarly within the parties knowledge c. In alleging fraud or mistake, a party must stay with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person's mind may be alleged generally d. In pleading conditions precedent, it suffices to alleged generally that all conditions precedent have occurred or have been performed. But when denying that the condition precedent has occurred or been performed, a party must do so with particularity. e. If an item of special damage is claimed, it must be specifically stated. 2. Leatherman v Tarrant County CB 311--R9 (MAY BE DEFACTO OVERRULED) a. Two search warrants. One homeowner claims he was assaulted by officers, the other said they killed her dogs. b. The only cases that require a heightened pleading (more specificity) is fraud, mistake , and special damages, not civil rights cases i. Require more detail because R8(a)(2) is for all cases except those in R9

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Inconsistent Facts and Alternative Theories--R8(d)(2&3)

1. McCormick v Kopmann (317)--R8(d)(2&3) a. Surviving spouse brings two conflicting alternative theories of recovery. He wasnt drunk-he was drunk but it was the bars fault b. This is allowed i. May be because there is a risk to the P, that the jury finds P lacking credit. But since P is dead and the spouse really doesnt know, it shouldnt happen here.

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Voluntary and Involuntary Dismissals 1. Rule 41 -- dismissal of actions (see mc questions)

a. Voluntary dismissal by the plaintiff i. Without a court order by filing 1. A notice of dismissal before the opposing party serves either an answer or a motion for summary judgment; or Civil Procedure 3

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2. A stipulation of dismissal signed by all parties who have appeared 3. Effect 1. Unless the notice or circulation states otherwise, the dismissal is without prejudice. But if the plaintiff previously dismissed any federal or state court action based on or including the same claim, a notice of dismissal operates as an adjudication on the merits 1. Dismissing once with notice is without prejudice, but if you dismiss twice, its with prejudice regardless of where the case was filed. 1. Doesnt apply when the second dismissal is by stipulation, unless the stipulation specifically says with prejudice. ii. By court order, effect 1. Except as provided in part one an action may be dismissed at the plaintiff's request only by court order, on the terms that the court considers proper. 2. If the defendant has pleaded a counterclaim before being served with the plaintiff's motion to dismiss, the action may be dismissed over the defendant's objection only if the counterclaim can remain pending for independent adjudication. 3. Unless the order states otherwise, this dismissal is without prejudice. Involuntary dismissal i. 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. ii. Unless the dismissal order states otherwise, a dismissal under this subsection and any dismissal not under this rule -- except one for lack of jurisdiction, improper venue, or failure to join a party under rule 19 -- acts as an adjudication on the merits. Dismissing a counterclaim, cross-claim, or third-party claim i. This rule applies to dismissal of any counterclaim, cross-claim, or third-party claim. A claimant's voluntary dismissal must be made: 1. Before a responsive pleading is served; or 2. If there is no responsive pleading, before evidence is introduced at a hearing or trial. Costs of a previously dismissed action i. If a plaintiff who previously dismissed an action in any court files and 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 into the plaintiff has complied Therefore i. Two kinds of dismissals 1. On your own 2. With permission 1. Agreement by other side, or 2. Agreement by the court 1. No harm to the other side 1. Early on and not much happened

b. Responses to the complaint

i. Pre-answer motions 12(a)(4)(a) 1. Defendant is usually seeking a dismissal 2. If all motions fail, then must answer 14 days after notice of courts ruling 3. Pre-answer motion must be filed within 21 days of being served with a summons/complaint Civil Procedure 4

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4. Motions a. 12(b) Motion to dismiss i. Court may dismiss on 12 (b) if the complaint fails to State a claim. To state a claim, a complaint must contain three things. A short plain statement of jurisdiction, a short plain statement of claim, and a demand for relief. To state a claim to meet the requirements of a short plane statement of the claim the allegations must be both factually and legally sufficient. 1. Subject matter jurisdiction, personal jurisdiction, venue, insufficient process, insufficient service, failure to state a claim, failure to join a party ii. 12(h)(1) 1. A party waives any defense listed in rule 12 (b) (except SMJ, failure to state a claim, and joinder) by; 1. Omitting it from a motion in the circumstances described in rule 12 2. Failing to make it my motion under this rule 3. Failing to include it in a responsive pleading or an amendment allowed by rule 15 as a matter of course b. 12(f) Motion to strike c. 12(e) Motion for more definite statement i. For when motion is unintelligible, rarely used d. Motion for summary judgment i. Applied when uncontested facts would suit ii. With the court consider something outside of pleadings e. 12(g)(2) Limitation on Further Motions i. A party that makes a motion under this rule must not make another motion under this rule raising the defense or objection that was unavailable to the party, but omitted from its earlier motion Answer (pleading) 1. A document filed with the court that response to the complaint and explains the issues that the defendant intends to contest. 2. Can contain: a. Admissions/Denials i. 8(b) Requires the defendant to deny only those allegations in dispute ii. 8(d) Any allegation not denied is deemed admitted iii. 8(b)(5) Denials or lack of information or knowledge 1. A party that lacks knowledge or information sufficient to form a belief about the truth of an allegation must state so. 1. Has the effect of the denial 2. Cannot be used if the defendant has reasonable access to the information or if it is a matter of public record or general knowledge 3. When this happens, the issue is said to be joined (contested)--an issue on which an evidentiary determination is required 4. When the defendant admits an allegation of the plaintiff's complaint, the allegation is taken as true and no proof is required iv. Admissions 1. Occurs when you either say in your answer to the complaint allegation is true, or by failing to properly deny 2. Bound by admission at trial 3. Why admit 1. Duty to respond in good faith/strategic reasons (i.e. limiting cases to trial on damages) v. Denials Civil Procedure 5

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1. Gen. denial 1. Single sentence stating that "defendant denies each and every allegation of the plaintiff's complaint" 2. Specific denial 1. Sentence by sentence or paragraph analysis of the complaint b. Affirmative defenses 8(c) i. A party must affirmatively state any avoidance or affirmative defenses ii. Different from denials because a new matter is injected into the dispute iii. Defendant must plead her affirmative defenses or they are lost Counterclaims 1. The defendant may assert claims against other parties and, in some circumstances, force the joinder of additional parties Default judgment 1. If the defending party fails to respond in an appropriate and timely manner, she may find herself in default a. Notation on the Court's docket sheet that the defendant has failed to plead or otherwise respond in time b. Plaintiff cannot obtain money or other relief on the basis of default i. Plaintiff must get a default judgment FRCP 15 1. Broad rule summary a. Courts should grant leave to amend freely if it's in the interest of justice unless the party opposing the amendment can demonstrate prejudice, or granting the amendment would be futile. If amendment cannot be done as a matter of course, it must be done with permission, which can be done either through written stipulation of the parties or through the court. 2. Matter of Right (as a matter of course)--Just do it a. Pleading that doesnt require a response (answer unless it had a counterclaim in it ) i. Can amend within 21 days from service b. Pleading that requires a response (complaint) i. Can amend within 21 days from service of the response of pleading or motion 3. With Permission a. From the Opposing party (call the opposing counsel) i. File a Stipulation with the court (tell the court why it doesnt harm the other party) b. From the Court (motion for leave to amend) i. Court will grant permission when there is no prejudice (harm) to the other side 1. Prejudice 1. Undue delay 2. Bad faith 3. dilatory motive 4. Repeated failure to cure 5. Large amounts of time or money spent 1. Even if its only on one theory and the amended complaint gets rid of that one theory 2. Cannot be futile 1. Mustn't be barred by the statute of limitations 1. The relations back doctrine must apply if SOL problem 1. Amendments will relate back if they only fleshed out the factual details, change the legal theory, or add another claim arising out of the same transaction, occurrence, or Civil Procedure 6

c. Amendments
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conduct. Relation back is denied those amendments which are based on entirely different facts, transactions, and occurrences. 2. Reason 1. During discovery phase a party may realize that they have other claims that they wouldn't have realized prior to discovery, and the relation back doctrine is there because 1. Parties are intended to find new information in discovery and shouldnt be bound to their initial pleadings 2. But we dont want a free for all where parties make a crappy claim right before SOL has expired 3. If SOL has expired, can still add a claim if it has the same transaction or occurrence so that there was notice 4. If SOL has expired, can add a party if: 1. Same transaction or occurrence 2. The party to be added must have received notice before the SOL expired 3. Knew or should have known that but for the mistake they would have been sued 3. Standard for permitting an amendment 1. Prejudice

d. Variance
i. The complaint only says I'm suing you for contract A, but at trial I bring in evidence for A and B. The other attorney is asleep and doesnt object. 1. There is implied consent or consent to P amending the claim at that time 2. If P doesnt or forgets to seek to amend, the claim is treated as pleaded, so it doesnt matter. If the court finds there is no consent, D objects 1. P must file a motion for leave to amend to get permission from the court a. The court will find prejudice since it is all the way at trial 2. If for some reason the court allows it to be amended, the judge will allow additional time to allow discovery on that claim Marsh v Cohen CB 1. Assured he'd always have a job there and then fired, he sues for breach and age discrimination bringing this suit one day before SOL expires. After the statute of limitations has run, he figures out he has a claim for fraud and tries to bring in a fraud claim 2. The relation back doctrine a. Amending would be futile here i. It doesnt relate back to the original claim. No connection between the added claim and the original claim. The only thing in common is the firing b. Standard i. Same transaction or occurrence and here there was no notice 3. Did the court get it right? a. Many courts would allow this but its really a question of is it too burdensome. Its all about the courts interpretation. Veracity in pleadings (limits) 1. FRCP R11 (stop, think, research) for submitted documents holding both party/client (for factual contentions only) and firm/attorney liable (for factual and legal). Does not apply to discovery. Civil Procedure 7

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a. Under rule 11 a party must sign all pleadings. The signing of the pleading certifies that representatives of court pleading is not being asserted for improper purpose, has a basis in law or reasonable extension, and it's factually based. If it violates these requirements, a court may sanction the party either on its own motion or if an opposing party files a motion for sanctions. If a party seeks sanctions they must provide the 21 day safe harbor, which is an opportunity to correct the mistake. b. All papers must be signed by attorney , and must conduct a reasonable inquiry of the factual allegations based on the circumstances i. Must do a factual investigation to have a good-faith basis (based on the circumstances) that what you allege is true 1. Any factual denials are supported 2. Any factual contentions are supported ii. Must assure you have a good faith legal basis to assert the claim iii. Must assure you are not asserting a lawsuit for an improper purpose c. If you dont stop, think, and research, you may be sanctioned i. Sanction by the other sides motion 1. 21 day safe harbor provision 1. Serve it on the other side 21d before filing with the court to give the other side an opportunity to file an opposition, amend, or dismiss the claim 1. If choose to oppose the motion, wait the 21d and go before the court 2. If issue is due to changed circumstances, there is no need to amend the complaint as R11 looks at the circumstances when the complaint was submitted 1. Cant pursue that theory though ii. Sanction by the court's order to show cause (sua sponte) 1. Prove to us you didnt violate R11 d. Can only use R11 to deter, cannot punish i. Remedy and award attorneys fees for the cost of bring the R11 motion ii. Imposes sanctions to deter future misconduct e. If you think there are too many frivolous lawsuits, you want a strong R11 with big sanctions. The problem is the push the boundary cases that may be viable but ask the court to stretch the law or use a novel theory, you run he risk that you will get sanctioned which would discourage those types of suits i. Case 1 Cutting edge civil rights claim R11 motion Dont withdraw Court disagrees sanctions ii. The cutting edge cases who honestly feel they have a claim are the ones that won't back down and thus run the risk of R11 sanctions, while the totally frivolous cases just try and get their best shot to get in the door will back down and face no sanction. Only the stupid frivolous ones would not withdraw and get sanction Civil Procedure 8 Case 2 Totally frivolous R11 motion Withdraw No sanction

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1. The real slimy attorney knows he will not be sanctioned under R11, because he will admit his mistakes and get past it 2. rule 11 is said to have become toothless because case 2 is really the one that deserves sanctions in case one gets them. If someone tells you that he saw them in the smoke-filled room therefore allowing you to satisfy the Twombly requirements, that person was not telling the truth and there was no smoke-filled room and the court orders you to show cause why you should not be sanctioned under R11, your argument would be that it was reasonable under the circumstances for you to believe the person, or it was reasonable that after further investigation you would have an evidentiary basis. 1. How on earth do you prove this? Courts struggle with whether it was a reasonable belief or not.

2. Ss 1927 a. If you unreasonably or vexatiously increase the costs of litigation the court can sanction you for bad faith conduct. i. R11 doesn't require bad-faith ii. Here, under the inherent power of the court the court can also sanction you if you do something bad faith. 3. Rector (348) a. After his original claim is dismissed for seeking $20 billion more than the purchase price, P files a new complaint (amended) which seeks "an indefinite amount" as a remedy. D files a motion for R11 sanctions, but doesnt serve it 21d before filing it with the court. P fails to raise in court that they were not served with the 21d safe harbor provision, until the case goes all the way up to the 4th circuit b. If the safe harbor rule is a jurisdictional provision (like SMJ) it cannot be waived. If it is a mandatory rule, the court has power to decide if waived or not. i. This is a mandatory rule that must be complied with but can be ignored if they want too. ii. If the other side fails to object, no big deal, no sanction. The other side must object for the sanction.

3. Discovery
a. So you dont lock yourself into a particular theory of the case too early, attorneys will plead as little facts that are allowed. It's under discovery were attorneys will figure out a particular theory of recovery or defense.

b. Scope of Discovery
i. ii. Discoverable information is information that is relevant and not privileged Relevant 1. Must be reasonably calculated to lead to the discovery of admissible evidence 2. Something the law says matters and makes the fact in dispute more or less likely 3. The information you seek mustn't be admissible at trial, it just needs to be reasonably calculated to lead to the discovery of admissible evidence Privilege 1. Information not privileged is subject to discovery 2. Privilege is an absolute block a. If you object and can prove that it fits within one of the privileges, you don't have to do discovery on that. If you fail to object you run the risk that the information is discoverable. 3. Common-law privileges prevent obtaining information a. Attorney-client i. Confidential communication between the attorney and client 1. No cocktail receptions Civil Procedure 9

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b. Doctor-patient c. Husband-wife d. Psychotherapist-patient e. Priest-parishioner 4. Testimonial privileges prevent a particular person from testifying at trial a. Self-incrimination b. Spouses c. Police informant 5. R26(b)(5) a. If asked from the other side, must produce a privilege log to determine if the information is in fact privileged information i. Basic information for assessment, that doesn't disclose but allows identification of the document or type of document

c. Mechanisms
i. ii. Before automatic disclosures occur, no other formal discoveries permitted 1. Depositions, interrogatories, subpoenas, etc. R 26 (a)(1) Automatic disclosures 1. Must provide: a. list of witnesses that may support your claim or defense b. List of documents that may support your claim or defense c. List of itemized damages d. An insurance agreement if case includes one 2. Disclosure must occur as soon as practicable, early on in the litigation no more than 21 days before the pretrial conference ( set no later than 3 to 4 months after the claim is filed) 3. Prepare a report for the court and give the other side the information 4. If you don't disclose something that you were required to disclose, you may be prohibited from using what was not disclosed. a. If you have the document and don't disclose it, it will be barred b. If the document turns up later on you must supplement that initial disclosure with it i. If you had a good reason why he could've provided earlier, just supplemented it and it can be used 5. Promotes settlement and avoids battles 6. Cannot request or conduct formal discovery until automatic disclosures are completed R28 and R30 Depositions 1. Can depose parties and non-parties (witnesses etc) as a way to get more information 2. Assesses credibility for strategy 3. 10 depositions allowed per side, no deposition can last more than one day, can only depose a person once a. These limits can be changed by court or stipulation (probably except for the onetime per person provision) 4. Funnel very broad to very narrow questions and end with cross examination questions (leading questions). R33 Interrogatories 1. Written questions 2. Can only be served on parties a. No nonparties (i.e. witnesses) 3. Can only get 25 but may be changed by agreement 4. 30 days to respond to the interrogatory, but this can be shortened or extended as stipulated between the parties or by court order if necessary. 5. Grounds for objecting to an interrogatory must be stated with specificity. Any non-stated ground in a timely objection is waived unless the court, for good cause, excuses for failure Civil Procedure 10

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6. The party must sign the answer and the attorney must sign the objection a. Answers are under oath R34 producing documents and other tangible things 1. For business records or documents ( tape recordings etc.), can just provide the record or document rather than answering if you choose to a. Must give a specific reason for why you're seeking these b. May have to be inspected on-site R36 Requests for admissions 1. Occur later on in the case (towards the end of discovery), as a way to kick things off the table. Ask the other side to admit a particular fact is true or not true so as to get rid of it from trial. "Please admit you own a car in the accident" 2. The other side must admit the issues it cannot reasonably contest a. If you contest with no reasonable basis the court can shift the cost 3. Purpose is to narrow issues for trial 4. Must object for cause to choose not to answer, since if you don't deny it's deemed admitted a. Must reasonably investigate, cannot say you don't have the information to affirm or deny i. What's required 1. Witnesses that may support a claim or defense 2. documents that may support a claim of defense 3. Listed damages 4. Any insurance contracts ii. When 1. As soon as possible but no later than 14 days after the early meeting of Council iii. Upon failing to do so 1. Can be excluded from using information

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Experts
1. Critical to litigation because you need them 2. Four different types of experts that can be involved in litigation (Ager R26(b)(1)) a. Testifying expert i. Party intends to call a trial ii. Discoverable 1. Must produce a report provided 90 days before trial 1. Expert Opinion 2. Any data or information upon which the report is based 3. Exhibits used to support this 4. Qualifications 5. Cases they've acted as an expert witness from the past four years 6. How much they're getting paid iii. The other side can depose the expert after receiving the report iv. Anything given to the expert, including work product, is discoverable 1. Anything considered upon in writing the report b. Informally consulting expert i. Somebody you're asking questions with no intention of calling a trial 1. Basic questions of what they think 2. Golf course type ii. Never discoverable c. Expert employees/percipient (eye)witness d. Consulting expert that's retained i. Somebody retain for consulting with no intentions of putting on the stand ii. Not discoverable unless exceptional circumstances Civil Procedure 11

1. Impossible for the other party to retain the information because there's no other expert 3. Determining a consulting retained expert from a informally consulted not retained expert a. Factors (look at everything, and make it up) i. Manner consultation ii. Nature of information provided iii. Duration iv. Terms b. Even if you pay them, do not necessarily retained and specially employed i. Calling somebody to get her initial thoughts on something, and they say you want to talk to me, its hundred dollars an hour h. Timing i. The court is going to hold a hearing, three or four months after the case begins. Before that hearing you need to meet with the other side, and discuss what the case is going to look like, a discovery plan, and a chance of settlement. After that, they will provide automatic disclosures. ii. Lawsuit begins when a complaint is filed 1. Between three and four months after, the court will set a rule 16(b) pretrial conference a. Scheduling conference i. Judge meets the parties and assesses if there's any case of settlement, and to set the name dates in the lawsuit b. As soon as possible, but no more than 21 days before the scheduled conference, there must be a rule 26(f) conference (early meeting of Council) i. In-person meeting where you meet with the other side and talk about chances of settling and discussed were the witnesses and the main issues in a lawsuit ii. Automatic disclosures are exchanged ( but no more than 14 days after the) iii. Joint report filed b. Complaint---------------R26(f)------- ---------------21days------------------------------------R16(b)---------------court enters pretrial order if they early meeting --auto disclosure--joint report pretrial scheduling order agree with the joint report iii. R16(b) --pretrial scheduling order a. After receiving the parties report, or consulting at a scheduling conference, a judge must issue a scheduling order b. The scheduling order must be issued as soon as practicable, but in any event within the earlier of 120 days after service of the complaint, or 90 days after any defendant has appeared c. The scheduling order must: i. Limit the time to join other parties, amend the pleadings, complete discovery, and file motions d. The scheduling order may: i. Modify the timing of disclosures ii. Modify the extent of discovery iii. Provide for disclosure or discovery of electronically stored information iv. Include any agreements the parties reach for certain claims of privilege or of protection as trial preparation material after information is produced v. Set dates for pretrial conferences and for trial; and vi. Include other appropriate matters Civil Procedure 12

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R 26(f)-- early meeting/planning for discovery The parties must confer as soon as practicable, at least 21 days before a scheduling conference is to be held or a scheduling order is due. b. The parties must: i. consider the nature and basis of their claims and defenses and the possibilities for promptly settling a resolving the case ii. Make or arrange for the automatic disclosures iii. Discuss any issues about preserving discoverable information iv. Develop a proposed discovery plan v. Submit to the court within 14 days of the conference a report outlining the plan. vi. ( the court may order the parties or attorneys to attend the conference in person) c. The discovery plan must state the party's views and proposals on: i. What changes should be made in timing, form, or requirements for disclosure, including a statement of one initial disclosures were made or will be made; ii. The subjects on which discovery may be needed, when discovery would be completed, and whether discovery should be conducted in phases or be limited to or focused on particular issues iii. Information about the electronic discoverable information iv. Any information of privilege or protection v. What changes should be made in the limitations on discovery imposed under these rules or by local rule, and what other limitations should be imposed vi. Any other orders the court should issue d. If necessary to comply with the schedule for rule 16(b) conferences, the court may by local rule: i. Require the parties conference to occur less than 21 days before the scheduling conference is held or a scheduling order is due ii. Require the written report outlining the discovery plan to be filed less than 14 days after the parties conference, or excuse the parties from submitting a report to permit them to report poorly on their discovery plan at the rule 16 (b) conference a.

4. Limits
a. Work Product i. Hickman v Taylor a. Sinking tugboat's lawyer interviewed witnesses in anticipation of lawsuit, and survivors attorneys wished to get those notes. i. Note: the lower court found the information to be discoverable and ordered the attorney to give it up. He refused to, and purposely got himself held in contempt because it is the only way a discovery ruling can be appealed before going through the entire case 1. He was able to have an interrogatory appeal b. Refuses to base its ruling on the fact that the lawyer is a nonparty, can't serve interrogatories or document requests on nonparties i. What they should've done to get the witness statements produced was do a deposition attached with a subpoena to depose and request the person coming in for the deposition produce the documents. ii. If you want to get information from the nonparties have to do with her deposition and if you want a nonparty to produce documents, a subpoena has to be attached. c. Case based on the work product doctrine as he claimed attorney-client privilege i. He was discussing with third parties so the attorney-client privilege does not apply, but there was no work product doctrine at the time ii. The other side can do the interviews themselves, so this information is not discoverable under work product doctrine Civil Procedure 13

b.

R26(b)(3) Work product doctrine Document or tangible thing produced by or for the party in anticipation of litigation a. Usually work product is protected, however this protection gives way if: i. No substantial equivalent available anywhere else ii. Substantial need for the information b. Mental impressions of counsel it's never discoverable because it would give away strategy i. Who the attorney interviewed--reflects mental impressions of who the attorney finds is important ii. Statements given to the attorney c. Work product applies to people who prepare information for the party or the parties representative i. Paralegals, insurance adjusters, private investigators, etc. ii. Trial preparation materials are work product generally 1. If it was not prepared in anticipation of trial it's prepared in ordinary business iii. Work product doctrine test a. Is a work product i. Document or tangible thing ii. Prepared in anticipation of litigation iii. By or for a party of the party's representative b. Are there any exceptions i. Substantial need ii. No alternative c. Is it a mental impression (non-tangible)(Hickman) i. An attorney's mental impression is always protected (never gives way) 1. Only for an attorney's mental impression iv. Nonparty exception a. A nonparty who gives a witness statement is entitled to a copy of the statement even if it is work product. i. Major loophole 1. So the witness can see what they wrote before testifying ii. But an attorney's notes on what the witnesses said probably constitutes a mental impression and is never admissible and doesn't need to be given back to the witness iii. Incentive not to take a formal witness statements v. Purpose is so attorneys do their own investigations vi. Difference with privilege is that work product can give way if it's compelling but privilege never does vii. Anything tangible (without an exception) and an attorney's mental impression is protected Nondisclosure of consulting experts (unless an exception) or informally consulting experts i. However, If you meet the exceptions for work product, you will need the exception for consulting experts and vice versa a. Ultimately do the same analysis, as a consulting expert fits squarely within the work product rule The reason for compliance is because that's where lawyers act at their worst as there is little judicial overview. Sometimes they only bring 10 documents, sometimes they bring 10,000. This other side may be buried in discovery or buried in requests. The question is how early does the judge get involved, and how heavy should their sticky when they do? You have to either object or seek a protective order if you don't respond to a discovery or you risk being sanctioned Civil Procedure 14

ii.

5. Compliance (sanctions)
a.

b.

c.

Three remedies i. R26(g) signing disclosures and discovery requests, responses, and objections a. Must sign document requests and responses to assure: i. Attorneys sign to the law and client must sign to the fact ( objections attorney only need sign) 1. Responses are complete and correct disclosure at the time it is made 2. Requests are consistent with the rules in terms of requests, Not for any improper purpose, and Not overly burdensome b. If not signed, you have a chance to sign it. If still not signed the other party has no duty to act and the court to strike the response unless ones being notified of the omission is promptly remedied i. The problem is that if it's a response to a rule 36 request for admission, you will be deemed to have admitted everything because you didn't sign the bottom of the response. If it's a response to an interrogatory request, your objections will be deemed waived because you never timely objected. ii. R2(c)--Protective Orders a. If you believe the discovery's improper you can ask a court to prevent the disclosure of even stuff that would be relevant if you can show for good cause it should be disclosed i. Commonly in situations of trade secrets you're worried about being disclosed or other personal or sensitive information. Even if the info is overly burdensome or calls for too much information etc. b. The burden shifts to the other side c. Only use when you will not win on the objection alone iii. R37 the court's authority to sanction or compel compliance with the discovery order a. Failure to comply with the automatic disclosure requirement means that you can be barred from using it at trial b. Failing to admit something (frivolously) in a request for admission that at trial is proved to be true can cause the party to pay attorney fees and the cost to prove it. i. Unless the request was objectionable, it was in a insubstantial importance, or you have a reasonable ground to believe you will prevail on that issue c. Failure to answer any response or interrogatory requests can result in compelling or sanctions being sought i. No response immediately seek sanctions d. If a frivolous response or objection for documents, can compel only unless they still don't comply (sanctions) i. Some response must compel before seeking sanctions ii. Frivolous objections and responses buy yourself some time 1. Meet and confer conferences e. No response Motion for sanctions Exclusion of evidence, Deeming stuff established, Dismissal or default Failure to admit disclose Could lead to attorney's fees and cost of proving unless the request was objectionable, was a insubstantial importance, or a reasonable ground to believe you will prevail on the issue Some response (incomplete) Meet and confer motion to compel Order to compel ( ignore the order) Meet and confer 15

Civil Procedure

Motion for sanctions iv. v. R16 discovery conference like being called in for detention to explain why they're not getting along Types of sanctions a. Attorneys fees and costs ( always) b. Order of facts admitted c. Order conclusion d. Default are striking e. contempt Washington State Physicians CB 418 a. Two-year-old permanently disabled because of a drug, and the drug company withheld letters that they knew about the possible harm which were anonymously sent to the doctor after he settled. The next day after being caught they deliver 10,000 papers to the doctor's attorney with the requested document buried inside b. Rule 11 doesn't apply to discovery requests, because rule 26(g) is a work of rule 11 and discovery requests c. If there's a violation of the certification requirement use the more specific rule over the more general rule i. You get to rule 37 because you have rule 26(g)

vi.

4. Trials and adjudication without trials

1. Right to Juries
a. The seventh amendment i. Preserved at the time of the ratification of the seventh amendment ii. Must be a legal claim that was a suit at common law. a. Only courts of law have juries, not court's in equity Federal Rule 38 i. Must make a demand for a jury trial within 14 days from the last pleading or the right is waived. a. Whenever a claim is served on an opposing party that contains a legal claim that is subject to resolution by the jury, you have 14 days from that particular serving

b.

c.

Claims that didn't exist at the time of ratification (not contracts, trespass, murder, etc.)
i. Test to determine if a new claim is entitled to a jury under the seventh amendment: a. History i. Looking to find with the historical analogue is ii. Is there something similar, at common law at the time of ratification? (very flexible) b. Nature of remedy i. Was it legal or equitable in nature? ii. Would have been heard in a court of law or court of equity? 1. Only if it was heard in a court of law will a jury be allowed 1. Law 1. Breach of contract seeking damages 2. Equity 1. Breach of contract seeking specific performance 2. Seeking an injunction Test for a very complicated case (i.e. patents) a. Functional approach i. Look at who is better equipped to decide this type of case ignoring the seventh amendment's language if it leads to a strange result. Civil Procedure 16

ii.

d.

1. Is it too complicated for the jury, etc. Patents etc. require special training and practice and therefore a judge is better equipped to decide this type of case. iii. Chauffeurs CB 436 a. Fired teamsters sue their employer and the union for breaching their duty of fair representation in their claim. The employer went bankrupt, so now they're just suing the union for breaching the duty of fair representation and seek a jury trial. b. Is the duty of fair representation entitled to a jury trial? i. The duty of fair representation is most like a trust (fiduciary duty) 1. Encompasses both equitable and legal issues 2. This tells us nothing ii. The nature of the remedy (back pay) is legal 1. Equitable if restitutionary, but back pay is not restitution, its damages. c. Plaintiffs are entitled to a jury trial Equitable and legal claims brought together i. Beacon Theaters CB a. The court will decide the legal claims first before the jury, and if any remaining equitable issues in the deciding, the judge will decide those claims. Preemptory challenges i. Excusing someone from the jury pool for any reason a. Possible reason is a legitimacy function ii. Three in a civil case, six in a criminal case, 10 in a felony prosecution, 20 in a death penalty case. iii. J.E.B CB 457 a. The attorneys used peremptory challenges discriminatory on sex. b. It is an equal protection clause violation to dismiss jurors solely on gender c. Must show a prima facie case with a pattern of discrimination i. The burden of proof shifts to the other side to show it was dismissing on some neutral ground Challenge for cause i. Unlimited amount of challenges for cause ii. Must have a reason for the dismissal a. If the judge disagrees, use a peremptory challenge Rule summary i. Summary judgment should be granted when no genuine issue of material fact exists and the court can enter judgment as a matter of law. First the moving party must meet their burden of production and establish a prima facie case for summary judgment. If the moving party meets their burden of production, the burden shifts to the non-moving party. The nonmoving party must either establish that fact dispute exists sufficient to go to the jury or request additional time. The court will draw all reasonable inferences in favor of the nonmoving party. A mere scintilla of evidence is insufficient to establish a genuine issue of material fact. ii. If the moving party is moving on a claim or defense to which the moving party has the burden of persuasion at trial than the moving party must establish that every element of the claim is met so that no reasonable juror would find otherwise. Assuming they do this summary judgment must be granted unless the other side can demonstrate a genuine issue of material fact. iii. When the moving party does not have the burden of persuasion at trial, the moving party can meet its burden of production in two ways. First, they can show that the nonmoving party has Civil Procedure 17

2. Jury selection and size

a.

b.

3. Summary judgment (before trial during discovery)

a.

b.

c.

d.

no evidence to prove an essential element of its claim. Second, they could affirmatively disprove an essential element of the opposing parties claim. iv. Defendant moving for summary judgment on the plaintiffs claim a. Summary judgment will be given when there is no genuine issue of material fact so the judgment can be entered as a matter of law (R56). For the defendant to be successful, he must establish a prima facie case. i. Has defendant met his burden of production (established a prima facie case) (Anderson) 1. Defendant is the moving party. Because the defendant does not have the burden of persuasion of the plaintiff's claim, the defendant meets his burden of production in one of two ways -- disapprove an essential element of the plaintiff's claim, or show that the plaintiff has no evidence to support an essential element of plaintiff's claim. ii. If a prima facie a case is established, has plaintiff met his burden of production to defeat summary judgment (Anderson) 1. If the defendant has met its burden of production, then to defeat summary judgment the plaintiff must either establish a genuine issue of material fact or may request additional time to conduct discovery assuming he can show such discovery would be fruitful. v. Plaintiff moving for summary judgment on their own claim Timeline i. After pleading, and somewhere near the end of discovery, most file for summary judgment motion FRCP R56 i. When there is no genuine issue of material fact and judgment can be rendered as a matter of law as no reasonable juror could find against you. Burdens i. Burden of Production a. What must be produced at the summary judgment stage for the judge in order to win or survive a motion for summary judgment i. No genuine issue of material fact ii. No Reasonable juror standard 1. Below the line if no reasonable juror could find for you 1. Even the one drunk will get you to court, but the blind man will not 2. More than a scintilla of the evidence b. Establishing a prima facie case for summary judgment (BOP shifts, party needs to prove or ask for more time for discovery) i. The Celotex and Adikes standard 1. A defendant, Moving on the opposing parties claim for which they do not have burden of persuasion at trial 1. Showing the opposing party has no evidence on an essential element (Celotex) 2. Affirmatively negating (disapproving) an essential element (Adikes) ii. Information learned in discovery is given to the court in declarations or affidavits. iii. Summary judgment can be brought by the plaintiff or defendant, it is unlikely that a plaintiff will prevail on their own claim because the plaintiff would have to show that no reasonable juror would find against them and to do so have to prove every single element with amazing evidence. The defendant only needs to disprove one element. So generally defendant spring summary judgment motions, except for counterclaims when the plaintiff acts as a defendant, or for an affirmative defense where the defendant has the burden of proof Civil Procedure 18

e.

f.

g. a.

Burden of Persuasion a. How much you need to prove to win your case before the judge or jury i. By preponderance of the evidence ii. More than 50% b. Moving party has burden of persuasion Summary judgment trilogy i. Anderson a. Rule 56 ii. Celotex a. Woman claims her husband was killed from that asbestos and Celotex moved for summary judgment based on her having no evidence that it was their asbestos b. Showing the opposing party has no evidence on an essential element is sufficient for summary judgment i. Affidavits are not needed under this "gateway" c. Dissent: Most attorneys follow i. Even if pointing to no evidence, the attorney should prove there is no evidence by submitting Affidavits. 1. Safe way to do things iii. Adikes a. Affirmatively negating an essential element means the other side cannot succeed in its case. iv. Reconciling Celotex and Adikes a. Two cases focused on different issues. The central question in Adikes is whether the moving party can reach its initial burden of production by producing affirmative evidence negating an essential element in nonmoving parties claim. The central question in Celotex was whether the moving party had carried its initial burden of production by showing that the nonmoving party did not have enough evidence to carry its ultimate burden of persuasion at trial. Ultimately these are two different methods by which the moving party and carry its initial burden of production i. Removing party without the ultimate burden of persuasion at trial may carry its initial burden of production by either of two methods. The moving party may produce evidence negating an essential element of the nonmoving party's case, or after suitable discovery, the moving party may show the nonmoving party does not have enough evidence of an essential element of the claim or defense to carry its ultimate burden of persuasion at trial. 1. Is easier in many cases to produce a permanent evidence negating an essential element of the nonmoving parties claim or defense than it is to show the nonmoving party is insufficient evidence to carry its ultimate burden of persuasion at trial. Summary judgment compared to a 12(b)(6) motion i. 12(b)(6) motion to dismiss a. Assuming the facts are true, there is no right to relief under the claim b. Looks only at the four corners of the document ii. Summary judgment a. Looks beyond the four corners of the document to see if they have or if they can prove the facts alleged in the complaint b. Looks beyond the pleadings to see if discovery has actually unearthed facts that could lead to success Summary judgment is for the entire claim, summary adjudication would be for a specific issue Directed verdict (similar to summary judgment based upon the trial) Civil Procedure 19

ii.

4. Judgment as a matter of law (brought with a motion for new trial)

i.

ii.

FRCP R50(a) a. If a party has been fully heard on an issue during a jury trial and the court finds a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on the issue, the court may grant motion for judgment as a matter of law against the party. i. Must specify the reason a directed verdict should be granted. Timeline a. Applied at the close of the plaintiff's evidence, or any time before the jury deliberates b. Reed CB 514 (nothing the jury can deliberate about) i. Cow killed by train, the farmer sues Train Company for having their fence in disrepair. ii. Two theories 1. Fence was in disrepair around track 2. Gate in fence left open around the farm iii. Directed verdict for the Railroad as the plaintiff could prove his case to preponderance of the evidence. 1. Ties go to the defendant

JNOV i. Rule 50(b) motion a. Predicate before filing i. Must have filed rule 50(a) motion, because if you have not asked for directed verdict first, the seventh amendment forbids it. 1. Technically this is a renewed rule 50(a) motion after trial under the seventh amendment's fiction. ii. Timeline a. Occurs after the jury deliberates, after a verdict is made by the jury (no more than 28 days after entering the verdict) b. Lavender CB 509 (stuff for the jury to deliberate about) i. Railway switch operator who switches the tracks killed by a train, and his estate sues for negligence and unsafe conditions. ii. Two theories 1. Mail hook swung from train and hit him 1. Problem: eyewitness said no hook on train, and it would be a stretch for it hit him if there was one. 2. Murdered by a hobo ninja 1. Problem: he still had his gold watch and wallet and there was no evidence of a scuffle iii. Jury finds for the train operator, but the State Supreme Court said it was not enough evidence to support the theory and judgment should have been entered as a matter of law, reversing the judgment iv. Supreme Court finds there is enough evidence to go to the jury and decide which theory prevails c. Appellate court has de novo review i. No deference is given to the trial court. 5. New trials (retrial) R59 (wrought with a motion for judgment as a matter of law) a. Can be brought by motion of the party, or sua sponte by the court b. Basis for a new trial motion i. Procedural error--something went wrong that can be pinpointed a. Something specific that trial was wrong i. Wrongful exclusion of evidence ii. Incorrect jury instruction Civil Procedure 20

b.

c.

d.

e.

f.

iii. Etc. b. Standard i. Whether it's prejudicial, not a harmless error ii. Substantive error--the jury went wrong but cannot be pinpointed a. Insufficient evidence i. On liability, or ii. On damages iii. If one of two is the problem, just that aspect will be retried; if both are problematic there will be a complete new trial. 1. If just damages is a problem, there will be a remitter (additor would be more money, but it's not permitted in federal court) 1. Either taking a smaller amount, or going back and retry and the whole thing 2. Reducing the amount is within what the jury awarded, so it's allowed by the seventh amendment, but moving it up is not within what the jury awarded so it usurps the jury and violates the seventh amendment. b. Standard i. Against the great weight of the evidence 1. Not as hard to prove as no reasonable juror standard Timing i. Must be brought 28 days after the judgment (entering of the verdict) a. Everything must be settled, all proceedings in lower court must have finished and been concluded Dadurian CB 517 i. Takes out an insurance policy on jewelry, and says he's robbed at the insurance company refuses to pay saying he never had the money to buy the jewelry in the first place and couldn't find a person who supposedly sold it to him. They claim he didn't have the jewelry in the first place and he lied to the insurance adjuster. ii. Jury found for the plaintiff. iii. In determining if the trial court was correct, Court of Appeal's standard for granting a new trial a. Abuse of discretion i. Was it unreasonable for the trial judge to believe it was against the great weight of the evidence 1. Was the trial judge reasonable Conditional new trial i. In cases where you bring both new trial motion and a motion for judgment as a matter of law, you must make sure the court rules on both motions, even though the motion for new trial can be somewhat pointless if given a judgment as a matter of law. If you fail to get the court to rule on both things than the Court of Appeal can only consider the other, and if the Court of Appeal disagrees there's no way to go back to the new trial, you have waived your right to new trial. If on the other hand you get the trial court to rule on both, conditionally the new trial, at the very least you preserve your right to retry the case if the appellate court disagrees with the ruling on the JMOL. It is more likely they will uphold new trial rather than JMOL based on the abuse of discretion standard. a. Failing to press the new trial motion can wave it. Motion for new trial based on Jury misconduct i. FRE 606(b) CB 531 a. Jury affidavits can be used to impeach a jury verdict when: i. Extraneous prejudicial information ii. Whether any outside influence was brought to bare influence on the juror Civil Procedure 21

iii.

Mistake in entering verdict ( wrote yes instead of no)

5. Respect for Judgments/Binding effect of judgments

1. Preclusion (former adjudication) (affirmative defenses) a. Overview i. Issue a. When have you already had a bite at your Apple b. When have you already had your day in court c. When are you allowed to file or re-litigate the same claim or the same issue again ii. Former adjudication a. Claim preclusion (res judicata) i. Same claim 1. Claims that were brought, or could have been brought but weren't ii. Between the same parties (mutuality) 1. Not only the same person you have sued, but also somebody you're in privity with iii. After A valid final judgment on the merits b. Issue preclusion (collateral estoppel) i. Same issue ii. that's actually litigated and decided iii. Essential to iv. A valid final judgment on the merits v. Between the parties 1. Offensive non-mutual collateral estoppel 2. Defensive non-mutual collateral estoppel iii. Policy reasons a. Cost efficiency b. Prevents overburdening of the court c. Finality/repose d. Legitimacy iv. How strictly or how narrowly you want to view these doctrines versus how broadly you want to view these doctrines depends on what rules you have for pleadings, Joinder and discovery. If you have very broad rules, it makes sense to have broad preclusion because you had your bite at the apple, if you didn't bring or learn of the claim it was your own fault, if you didn't join the right people it was your fault.

b.

Claim preclusion (precludes the entire case) RES JUDICATA

i. Rule a. Claim preclusion prevents the re-litigation of claims that were already brought or should have been brought. Claim preclusion requires three elements. It must be the same claim between the same parties and after a final judgment on the merits Same claim a. Rule i. Courts have found that the same claim exists if it was a claim that was brought or should have been brought. To determine if it was a claim that was brought or should have been brought courts apply one of four different tests. Must look out for institutional restraints that made it impossible for the person to join the claims. Some type of impossibility not created by the plaintiff in the original action. b. Tests: Same claim if arose from the same: i. Primary rights CA (minority) (focused on efficiency) 1. You have the right to be free from a particular type of injury Civil Procedure 22

ii.

iii.

iv.

1. Focused on the type of injury. Individuals have a right to be free from a particular type of injury and if you are injured, then the defendant has violated your primary right to be free from personal injury, property damage, harm from reputation, etc. doesn't define the cause of action, so you can have many causes of action. ii. Single wrongful act (majority) (focused on individualized justice) 1. If both derive from the same act there would be claim preclusion 1. Must be brought together in the same lawsuit iii. Same TNO test ( federal court) ( R. 2-D) (modern test) 1. Same transaction or occurrence that would make it convenient for trial as one 1. Same time 2. Same place/origin 3. Same motivation 4. (Sometimes same evidence) iv. Same evidence c. Carter CB 591 i. Driver sued another driver for negligence in the accident for damages to his car and loss of business. In the second case he sues the owner of the car and the driver for personal injury ii. Is the second suit precluded from litigation for being the same claim? 1. Primary rights test 1. The second lawsuit is not barred 2. Not a claim that should've been brought or had to be brought in the first lawsuit because it was derived from two different primary rights Between the same parties (mutuality) a. Requirement derived from the due process clause which says it's unfair to be bound to a judgment which you were not involved. i. Includes the same parties and their privities b. When is this met? i. Same names, or ii. Person in privity so they can be bound by the same judgment 1. Relationships recognized by law 1. Specific relationships between the parties that the law recognizes as being substantively binding. I.e. fiduciary relationships and other relationships recognized by law (executor of estate). 2. Representation in the prior suit 1. I.e. class-action, Guardian/child, trustee/beneficiary, assignment of contracts iii. (At common law, the configuration needed to be the same. This is now out the door because the compulsory counterclaims rule. If lawsuit one failed to submit the compulsory cross-claim, they are barred in the second lawsuit from bringing it) Valid final judgment on the merits a. Elements i. Validity 1. Subject matter jurisdiction and personal jurisdiction 1. Tweak: the judgments are generally considered to be valid if the court in deciding the case determined it had jurisdiction and there was no appeal and it wasn't overturned ii. Finality 1. Nothing left to do but execute the judgment (writ) or appeal Civil Procedure 23

v.

vi.

1. Note: an appeal will knock out the finality until the appeal is decided. This can go on for a long time iii. On the merits 1. Must be on something substantive 2. R41(b)--dismissals 1. The court's decision as to whether it is with prejudice or without prejudice controls. If the courts order doesn't specify there are default rules. 1. Dismissals based on jurisdiction, venue, or failing to join the party are not considered to be a decision on the merits 2. Dismissals for failure to state a claim could be a judgment on the merits but it doesn't have to be 2. If it's dismissed for something other than this it is on the merits Exceptions: where the courts will find there is no bar to the second action even if all elements are met: a. Agreement to split claims b. Court order specifically allowing c. Prohibited by law, i.e. a particular law requires the case be filed in small claims court where there's a prohibition to join claims d. Policy: judgment in the first act was inconsistent based on statute e. Policy: substantive policy where you want people to sue as his injuries occur i. I.e., Latent injuries that occur after the first case ii. Unless plaintiff purposely put themselves in the situation like choosing to bring in small claims court. f. Catch all: extraordinary reason (rare) application: merger and bar rs: application: you cant split claims merger -a victorious p who splits a coa may not seek addtl recovery for the other loss that may have been causes from the harm -prevents a winning p from further recovery - rights merge into the first claim bar a loosing p , who splits a coa, may not seek subsequent recovery for another loss suffered from the same harm. bar prevents a loosing p from further recovery --the first judgment will bar the second suit.

c.

Issue preclusion (prevents a real indication of particular issues of law or of fact) COLLATERAL ESTOPPLE RS: Bars subsequent re-litigation of issues that were actually litigated and necessarily determined in a prior proceeding
i. Same issue a. Must substantively be the same issue i. Just because they nominally the same means nothingmust be the same legal/factual determination b. The burden of proof must be the same in both cases i. But a greater burden will allow for a lesser burden, not vice versa 1. This is why they never filed a civil action while a criminal is pending but rather wait for the criminal to end in order to preclude the issue. Think OJ. Actually litigated and determined Civil Procedure 24

ii.

iii.

a. Proving the element, look at the actual evidence of: i. Pleadings ii. Affirmative defenses iii. Motions iv. Orders of the court b. Cromwell CB 609 i. Bonds were sold to build a courthouse. The judge keeps the bonds is no courthouse 1. Case one: S v. County for interest on the bonds. County raises the defense of fraud (that the bonds were fraudulently obtained). To overcome this S would have to say he was a bona fide purchaser for value, but he doesn't argue this and the County wins 2. Case two: C v County for different coupons on the same bonds. County's defense was issue and claim preclusion. S is C's Rep., therefore their in privity. ii. Claim preclusion failed because they were not the same claim under transaction and occurrence as they were different coupons with different contracts. iii. Issue preclusion fails because it was missing the actually litigated element on the bona fide purchaser for value defense. 1. C can assert bona fide purchaser for value on the second set of coupons as it was never raised in claim one and so can't be precluded from claim two. Essential to a. Rule i. Generally essential to is determined by whether changing the issue would alter the judgment except for those situations where there are two alternative findings both which are sufficient to support the judgment. In those situations there are two different rules states that applied the first restatement find that both are preclusive, states that follow the second restatement find that neither are preclusive unless one or both are affirmed on appeal. b. Policy i. It's unfair to allow issue preclusion unless it was vigorously litigated in the first place c. Exception i. Alternate findings 1. Two findings are on their own sufficient to lead to judgment, what is essential depends on whether the jurisdiction uses the first or second restatement. Both findings must be sufficient in of themselves. 1. First is both are preclusive 2. Second is neither are preclusive unless the issues are affirmed on appeal, where the appellate court decides. 1. Rationale is so people aren't dissuaded from appealing d. Rios CB 615 i. First suit: P v D for $443 car damage. D enjoins R for $248 car damage. 1. All found negligent and no one got anything ii. Second suit: R v D or personal injury $17,500. iii. D claims issue preclusion on R as he was found to be negligent 1. No compulsory counterclaim requirement, otherwise R would have raised claim preclusion. iv. The court says that the essential to element is missing as we could change R from the first case and the result would be the same as R was impleaded. Whether or not R was found to be negligent, the defendant in the first case would still have won Civil Procedure 25

iv. v.

1. If you didn't have an opportunity to appeal, courts are reluctant to say you had your full day in court and your bite at the apple. A valid final judgment on the merits Between the parties a. Analysis i. Mutual or non-mutual? ii. If mutual no problem iii. If non-mutual, is it being used against someone who had their day in court? 1. If not no IP 2. If so, is it fair ( defensive is probably not a problem, offensive probably is a problem but no need to make distinction between the two) 1. Unfair situations (usually in the offensive context) 1. Wait-and-see approach evidenced (easy joinder issue) 1. P always relitigates, but D does not 2. Easy joinder interpreted very narrowly 1. Usually only easy when they have the same attorney and know each other. Deliberately chose not to join. 3. Pushes people to split their claims 2. Multiple lawsuits with inconsistent judgments 3. Procedural differences 1. First case allows limited discovery, weren't able to conduct full examination, etc. 4. Incentives to litigate 1. Case one for $50, case two for $5 million b. No need for the same parties, but can only be used against someone who had their day in court i. Hypo 1 1. H v B, B is negligent 2. W v B, preclusion permitted because it was against somebody who had their day in court ii. Hypo 2 1. H v B, B is not negligent 2. C v B, preclusion not permitted because C hasn't been able to litigate yet, would be in violation of the due process clause. c. Non-mutual issue preclusion i. Offensive non-mutual collateral estoppel 1. P using issue preclusion to establish liability 2. A v B then P v A 3. Fairness and efficiency Policy issues 1. "wait & see" 2. Inefficient 3. Over litigation due to fear of issue preclusion (Ripple effect) 4. "over" settlement 5. Plaintiff shopping 6. Encourages the plaintiff to split their claims ii. Defensive non-mutual collateral estoppel 1. D using issue preclusion as a shield to prevent liability 1. P v A then P v B 2. Usually no fairness or efficiency policy issues d. Parklane CB 629 Civil Procedure 26

d.

P v D. During trial SEC v D where D is found liable for fraud. P seeks non-mutual offensive issue preclusion and piggy back off the SEC case. ii. Whether defensive or offensive, the court has broad and wide discretion to see if IP would be fair. Problem of Federalism i. The second court does not apply its own rules, it applies the rules of the first court's judgment because the judgment is worth no more and no less than what the first court said it would be, except for the exception of the Erie doctrine ii. Case one in state court, case two federal court (CA state to NY fed) a. SS 1738: federal court has to use the test of the state court, the place where the judgment was entered determines i. The preclusive effect of that first judgment is whatever the state court says it is iii. Case one in federal court, case to state court if it is a federal question (if sitting in diversity, see the Erie doctrine) a. The federal court standard applies

i.

6. Appeals
1. The final judgment rule SS1291
a. b. In a civil context in the federal courts there's an automatic right to appeal. No need for permission and no need to seek leave. All cases are generally appealable. Can only appeal however, when there is a final decision i. Triggering event ii. No interrogatory appeals iii. Nothing left to do but either appeal or execute on the judgment Policy reasons i. Deference to the trial court ii. Efficiency iii. Const and harassment iv. Independence from trial court Exceptions to final judgment rule allowing Interrogatory appeals i. Collateral order doctrine a. If you have a really important decision that has nothing to do with the merits, it's on the side and doesn't impact the merits, and it's likely that should not be able to have a resolution of that issue when the case finally goes to appeal then you have the collateral order and you can appeal on that collateral order i. i.e., being placed in contempt during a contract case can only be appealed while the case is ongoing. b. Elements i. Important and conclusive order ii. Separate and distinct from the merits iii. The likely not to be reviewed on the appeal itself ii. Certification exception 1292(b) a. The trial court believes it has made a decision that is incredibly controversial, and they want the Court of Appeal to decide the issue early on, because they think it's so controversial and essentially will resolve the entire case. b. Elements i. It has to be an order ii. Focused solely on controlling question of law iii. Substantial grounds for difference of opinion iv. Immediate appeal may lead to an early termination of the case iii. Injunction exception 1292(a) a. Can appeal to grant or denial of a judgment Civil Procedure 27

c.

d.

Partial summary judgment R 54 a. Multiple parties and partial summary judgment disposes of claims against one-party. b. The plaintiff can appeal as long as it's separate from the other case v. Class-action certification a. Reason is that the defendants exposure is minimal until certification. So this decision can be immediately appealed. i. Once your certified, you better settle vi. Writ of mandamus a. Rarely granted remedy that allows the appellate court to mandate the trial court do what the appellate court wants them to do. Because it's an extraordinary remedy must prove there's no other method or means to obtain relief. i. Must be that the trial judge is totally out to lunch and isn't even listening to you and that your right to relief is clear and indisputable. Must essentially win on the merits before the case. 2. Standards of appellate review a. Appeal on a question of law is reviewed de novo i. Fresh look by the appellate court b. Appeal on a question of fact is reviewed by the clearly erroneous standard i. Never win c. New trials and issue preclusion is reviewed under abuse of discretion standard i. If the trial court has discretion to decide the issue, they overlook for abuse.

iv.

7. Alternative dispute resolution (ADR)

1. Arbitration
a. b. c. d. e. Contractual agreement that you will resolve your dispute outside of court Usually three Arbitrators Truncated and less formal than a trial i. Less discovery, shorter cross, etc. Normally binding Reasons i. Companies can protect exposure better than a trial ii. More flexible/quicker/less costly iii. No jury so less risk of craziness Never binding resolution for formal process Helpful for cases that really should settle File mediation brief Soft as to law and tries to get a win/win

2. Mediation
a. b. c. d.

8. The Erie Doctrine--Diversity Cases in Federal Court Only

1. Diversity cases only, if a federal question federal law applies 2. Background--The Year Was 1938 a. Before Erie i. Substance was based on federal law (RDA) (Swift) ii. Procedure was based on state law (conformity act) b. Swift (1842) i. Must always apply federal statutes if applicable. If none are applicable: a. If you're a federal court sitting in diversity and the issue a matter of general law, the federal court is permitted to use federal common law. Just look at other federal courts. b. If you're federal courts in diversity and the issue is a matter of local law, the court must follow state common law. Look at the decision of those states. ii. A huge body of federal common law developed that was uniformed across the federal system that dealt with lots of different state law issues. Civil Procedure 28

a. Horizontal uniformity b. No substantive vertical uniformity Climate i. 1937 marked the end of the Lochner era, and the validation of the new deal. The size of the federal government expanded and became more powerful as related to the state government. Federal courts needed their own identity, and not merely be an appendage of the state court. It made sense that they have their own federal procedural rules. d. Erie RR (1938)--in one fell swoop the case over rules 100 years of precedent, including all the bodies of federal common law previously existed, based on a constitutional theory without citing to a single constitutional provision. i. P hit by one of Erie's trains while walking next to the track late at night and loses an arm by an open swinging door. ii. Trial Court debates about what law to apply a. Railroad argues it's a matter of local law, which would make P a trespasser and to succeed would have to be willful and wanton conduct. i. P would loose-- the railroad didn't deliberately leave the door open b. P argues it's a matter of federal law (general), which would make P a licensee. c. Trial Court says that general law applies, and P wins. iii. United States Supreme Court a. The parties in the brief argue whether it should be general law or local law, however on their own the Supreme Court only looked at whether Swift should be overturned. b. The Supreme Court called Swift unconstitutional giving them a basis to overturn precedent. They say the constitutional problem with Swift because the federal judges were assuming power they didn't really have, citing no constitutional provision however. c. The Supreme Court overturned Swift even though wasn't argued by any of the litigants. i. Problems with Swift 1. Line between general and local is too ambiguous 2. Lead to strange outcomes that made it easy to form shop and federal courts were biased in favor of corporations (taxicab case) 1. Black-and-white taxicab: both parties were from the same state at a time when diversity was based just on the place of incorporation, so the taxicab company changed its place of incorporation in order to get into federal court on diversity. 3. We read the rules and decision act wrong iv. Problems with Erie a. The Supreme Court reinterpreted a statute that had been around for 100 years, and quashed 100 years of good precedent. b. Just changed the problem from vertical form shopping to horizontal form shopping i. Used to be if you like to stay rule you go to the federal court. Now if you don't like the rule in the CDCA, you go to the CDNY. c. This doesn't change the ambiguity between local and general law, it just creates another definition, and the latter had 100 years of interpretation. They at least generally knew prior to Erie. v. Modern interpretation of Erie a. It is a justification of judicial restraint. The idea that judges are only interpreting the law created by Congress. They are not creating a law. e. After Erie i. Substance based on state law in which you're sitting (Erie) "State law controls" ii. Procedure based on the federal Rules of Civil Procedure (rules enabling act) 3. Determining whether it is substance or procedure. Civil Procedure 29 c.

a.

b.

c.

Guarantee CB 546 i. What were really concerned about is form shopping, leading to an illegitimate appearance of the court system, ii. Outcome determinative test to determine whether something is substantive or procedural: a. If it is substantive the outcome of the case would change depending on whether you applied state or federal law. b. There should be no labels as to if it should be procedural or substantive, there should be functional and the question is whether there's a different outcome or not iii. Problem with test: a. A procedural rule could change the outcome too, i.e. not including a footer on a paper on the deadline of the statute of limitations. It would be accepted in federal court but not in state court where it is a state law Triple Play Cases--swing i. In each case, they upheld state procedural rules over federal rules a. Concern after this case is that no federal rule is going to sustain itself on a challenge based on Erie. They will always find the opposing state rule is outcome determinative, and will rule. The federal court worries about becoming a lapdog to the state court. Byrd-- swing back i. Who decides a workers comp claim -- judge or jury? a. If applying the outcome determinative test: i. Doesn't necessarily mean they will be a different outcome determination, so it possibly wouldn't lead to form shopping ii. Test for determining if something is substantive or procedural: a. Is it substantive or procedural? i. Substance is now called bound up in state created rights and obligations. 1. If you have a rule that says the definition for negligence are these four elements, you would use that, but if it is tied to that substantive law it is also substance ii. Procedural is now called form and mode 1. Judge or jury is forum and mode b. If it is form and mode, there's an outcome determination, it is outcome determinative the federal law will give way to state law, but even if there is a difference federal rules don't always give way to competing state rules. i. The federal rule trumps even with an outcome difference when applying state law would disrupt the federal systems function. 1. Is there a strong federal policy against allowing state rule to disrupt c. Analysis: i. Isn't bound up in state created rights and obligations? ii. If no is a mere function and mode? 1. If so, is there a countervailing strong federal interest? iii. This is a question of form and mode however the federal law trumps state law as there's a strong federal policy under the seventh amendment to allow jury trials rather than judge trials. The federal law does not give way here. a. The seventh amendment is more important than outcome determinative i. Note: at the seventh amendment actually applied there would be no need for an Erie analysis because the supremacy clause. If it applies, it applies. Hannah--replaces one tricky test with another one i. Should service conform to state or federal rules? a. Server left the complaint with the wife which is okay under FRCP 4, but Massachusetts required personal service. Civil Procedure 30

4. The Current Approach defining the difference between substance and procedure
a.

b.

Analysis: a. Is there a federal directive on point (Federal Constitution provision, federal statute, or FRCP)? i. If yes (REA prong): 1. Is the federal rule unconstitutional, or does it violate the rules enabling act? 1. If no (FRCP will never violate by definition and will always trump): 1. Apply federal directive 2. If yes, there's no federal directive on point 1. Apply the state rule ii. If no (RDA/Erie prong): 1. Is the state rule bound up in the rights and obligations of the party (usually will be), are purely substantive? 1. Yes-- Apply the state rule 2. No--Would ignoring the state rule be outcome determinative by looking at the twin aims of Erie (form shopping/Appearance of ineffective administration of justice? 1. No -- apply the federal practice, because it has no impact 2. Yes--Are there any federal interests outweigh the state interests (Byrd) (rare only 7th amd.)? 1. No-- apply the state rule 2. Yes-- apply the federal rule b. If you're under the rules enabling act you always win because the supremacy clause. If you don't have a federal rule you're talking about nonfederal directives you start looking at the state interests. Even then it is less likely that the state rule is outcome determinative under this test. c. Judges can be vary results oriented i. If you don't want the state rules to apply read the federal rules very broadly, if you want to stay rules to apply to the federal rules very narrowly iii. Rule four is a federal directive on point. It is constitutional and doesn't violate the REA therefore the federal controls iv. What Parrish thinks: a. Erie was much easier to apply, however since Guarantee so they can no longer use the names they had to reinvent the same test of substantive or procedural into a harder test Gasperini -- is there a federal directive on point (does it preclude the different state rule)? i. Different rule for looking at the cap on damages for state law and federal law. P got $450,000 for his lost photographs and D argues it was excessive seeking a remidditer. Question is what is the standard of review on appeal? a. Federal standard of review is against the great weight of the evidence, shocks the conscience b. State standard of review was deviation materially from reasonable compensation ii. No federal directive on point a. Application of the state rule however isn't precluded so long as abuse of discretion is used upon appellate review. i. There is no conflict that precludes applying the state rule the same time. Applying the more lenient rule doesn't impose or infringe on the federal interest under the seventh amendment of not revealing jury verdicts all that closely. iii. Gasperini can be seen as swinging back federal interests which Hannah brought us to.

ii.

Civil Procedure

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