Civil Procedure II Outline I. Establishing the Structure and Size of the Dispute: Joinder Devices A.

Joinder of Claims Rule 18(a) 1. A party asserting a claim to relief a. original, counter, cross, or 3rd party claim 2. may join as many claims against the opposing party a. independent OR b. alternate 3. Rule 82at lease one claim must have an independent basis for JD and Venue 4. Other claims require either: 1) common nucleus of operative facts OR 2) same transaction or occurrence OR 3) aggregation of claims for diversity 5. Separate Trials Rule 42(b) a. For convenience, avoidance of prejudice, or expedition and economy, the court: 1) can order a separate trial of any claim 2) always preserving the right to a jury trial B. Permissive Joinder of Parties Rule 20(a) 1. Determines the maximum amount of parties who can be involved 2. Allows joinder of multiple persons as parties or if they assert a right to relief arising from a. the same transaction or occurrence AND b. common questions of fact 3. Allows joinder of multiple persons as if the claim against the arises from a. the same transaction or occurrence AND b. common questions of fact 4. Separate Trials Rule 20(b) a. court may make orders to prevent: 1) embarrassment OR 2) delay OR 3) expense b. incurred by a party who is included and has no claim asserted against them c. the court may order separate trials etc. to prevent delay or prejudice 5. Misjoinder and non-joinder of parties Rule 21 a. misjoinder of parties is not subject to dismissal of the entire action b. parties may be dropped or added by: 1) order of the court 1

2) motion of any party 3) sua sponte c. at any stage of the action d. a claim against a party may be severed and adjudicated separately C. Compulsory Joinder Rule 19 1. Minimum amount of parties who must be involved a. Feasible Joinder Rule 19(a) 1) A party subject to service of process AND who will not deprive the court of JD 2) must be joined if: a) complete relief cannot be accorded among the present parties b) the person has an interest relating to the subject of the action AND c) disposing the action in the persons absence will: 1. impair the persons ability to protect that interest 2. the parties involved will be subject to a substantial risk of inconsistent obligations 3) if the person refuses to be joined as a , the person may be made a a) defendant OR b) involuntary plaintiff 4) If the person objects to venue and joinder makes venue improper: a) Court shall dismiss the party b. When Joinder is not Feasible Rule 19(b) 1) If the party cannot be joined 2) In equity and good conscience the court shall decide to: a) proceed among the present parties OR b) to dismiss the case because the party is indispensable c) Factors the court must consider: 1. Will judgment in the persons absence be prejudicial to the present parties? 2. Are there any protective provisions to lessen or avoid prejudice? 3. Will a judgment in the persons absence be adequate? 4. Will the present have an adequate/alternative remedy if the action is dismissed for nonjoinder? c. Pleading Reasons for Nonjoinder 1) the claim shall state the names of the possible joinder parties if known 2) and reasons why they are not joined Case LawTorrington v. Yost Facts-- sued after signed an agreement not to disclose any confidential information about s company. After left the company to work for INA Bearing Co., filed suit seeking and injunctions limiting s INA position for 18 months. moved to dismiss under Rule 19 claiming that INA is an indispensable party. 2

RuleTorrington Test

I. Necessary Party A. Will nonjoinder deny complete relief to the present parties? B. Will nonjoinder impair the absent parties interest? C. Will nonjoinder lead to multiple or inconsistent results? D. If yes Look to: II. Is Joinder Feasible? A. Will Joinder affect JD? 1. if no join the party 2. if yes, Look to III. Is the absent party indispensable? A. Will there be prejudice of judgment to the present parties? B. Are there any protective provisions to lessen prejudice? C. Will there be an adequate judgment if the party is absent? D. Is there an adequate/alternative remedy for the present ?

HoldingINA is necessary because they have an interest in the injunction ( wont be able to work for them). Joinder is not feasible because it destroys diversity JD. The action should be dismissed because INA is indispensable: prejudice to because cannot recover from INA, no reasonable means to avoid the prejudice, no adequate judgment because INA could still use s secrets, and alternative remedy because can sue in state court. D. Third Party Joinder Rule 14 1. When may bring in a third party Rule 14(a) a. who is or may be liable to the original (3rd party ) b. For all or part of original s claim against original (3rd party ) 1) 3rd party (impleader) is liable to 3rd party (original ) c. 3rd party complaint must be made No later than 10 days after serving the original answer d. The original can assert a claim against the 3rd party if: 1) same transaction or occurrence 2) that is subject matter of original s claim e. Counter Claim Rule 14(b): When can bring in 3rd party 1) When any counter claim made against : 2) may bring in 3rd party just like the defendant can 2. Four Situations a. Indemnification 3

1) original brings in a party to pay for any losses incurred by a) Insurance company indemnifies for any losses suffers b. Subrogation 1) sues the insurance company directly 2) insurer brings in the insured c. Contribution 1) 3rd party may be liable for some or all damages for 3rd party a) when both original and impleader are liable to original b) original and impleader share the costs of damages d. warranty 1) consumer goods cases a) retailer sued b) retailer impleads the mfg. Case LawClark v. Associates Commercial Corp. Facts-- sued when he was injured while his tractor-trailer was being repossessed. filed 3rd party complaint seeking indemnity from its employee and two other associated parties. RuleImpleader is discretionary. Court will allow impleader unless it results in prejudice Purposeone lawsuit instead of several Case LawKlotz v. Superior Electric Products v. Butz FactsKlotz sues superior, superior impleads Wilkes, but Wilkes is liable directly to original . Rulecannot implead a party who is directly liable to original . E. Class Actions Rule 23 1. Threshold Requirements: CANT is an AND TEST a. Commonality 1) common question of law or fact b. Adequacy of representation 1) Representative of the class will adequately and fairly protect their interests c. Numerosity 1) Class is large that the joinder of ALL members is practically impossible d. Typicality 1) claims or defenses of the representative parties are typical of the class 2. AND one of the following a. prosecution of a separate action creates the risk of 1) Inconsistent or varying adjudications OR 2) Harmful result to other members of the class b. Party opposing the class has acted in a way that 1) generally applies to the entire class 4

a) across the board c. common questions of law or fact 1) relate to the class as a whole 2) determine whether the class action is the best way for the action to proceed 3. Other Factors a. Do we want a single forum? 1) are there management problems? b. Are there are other pending cases? 1) If so, what are the results or is there a possibility of different outcomes? c. Interest of members in the class to control their own case Case LawHolland v. Steele FactsDetainee was denied access to counsel. Seeks to create a class action for all sentencees and detainees. RuleAll Requirements must be met to proceed with a class action. HoldingAlthough detainees and sentencees have different rights, the action is based on grounds that generally apply to the class as a whole. Case LawIn the Matter of Rhone Facts-- were hemophiliacs affected with the AIDS virus by using s blood solid products. wants to bring a class action. Lower court wanted to split the issues. RuleIssue preclusion or collateral estoppel: Where an action has already been litigated, it should not be litigated again as a class action. HoldingProblems with bifurcationErie Doctrine: Which standard of negligence will be used. Irreparable Harm: company may be subject to bankruptcy in one jury trial. One jury will review the findings of another. Judge exceeded his authority. Privacy of the members of the class who are embarrassed by the AIDS virus. II. Obtaining Information for Trial: Discovery A. General Principles and Mechanics of Discovery 1. Rule 26 (a)(1) REQUIRED initial disclosures a. Identifies parties b. Any relevant data, documents, and tangible things c. Computation of damages d. Insurance agreements and indemnities 2. Exceptions a. initial disclosures not required if: 1) parties agree OR 2) Court order 3. Disclosures shall be made: a. Within 14 days after the 26(f) conference 5

b. based on information available to the parties c. no excuse for 1) incomplete investigation OR 2) it challenges the sufficiency of the other parties disclosure OR 3) the other party has not made disclosures 4. Disclosure of Expert Testimony Rule 26(a)(2) a. identity of all expert witnesses who may be used at trial b. expert witnesses must submit written report c. due date 1) initial expert testimony must be at least 90 days before trial 2) Rebuttal is 30 days after initial is given 5. Pretrial Disclosures Rule 26(a)(3) a. witness information b. deposition witness list c. identification of documents 6. Filing Rule 26(a)(4) a. in writing, signed, served, and promptly filed in court 7. Methods of Discovery Rule 26(a)(5) a. depositions b. written questions c. interrogatories d. production of documents e. permission to enter on land or property f. examinations: physical ad mental g. request for admissions 8. Supplementation of Disclosures and Responses Rule 26(e) a. Duty supplement and correct the initial disclosures B. Managing the preparation of the Case for Trial: Pretrial Conference Rule 26(f) 1. Meeting of the Parties a. nature and basis of the claim and defenses b. possibilities of settlement c. arrange for disclosures d. develop a proposed discovery plan 1) aids the judgelessens caseload e. Must be done 21 days before the 16(b) scheduling conference 2. Scheduling Rule 16(b) a. District Judge MUST enter a scheduling order limiting 1) joinder 2) filing of motions AND 3) time for complete discovery b. D. Judge MAY limit 6

1) time for disclosures 2) dates for conference, final pretrial conference, and the trial 3) or anything appropriate 3. Form of Disclosures Rule 26(g) a. Writings b. Signed c. Served 4. Sanctions under Rule 26(g)(3) a. reasonable expenses b. reasonable attorneys fees 1) court can raise sanctions sua sponte 2) sanctions on the party lawyer, or both C. Discovery Devices 1. Scope Rule 26(b)(1) a. any matter not privileged AND b. relevant to the subject matter in the pending action c. reasonably calculated to lead to admissible evidence 1) even if not admissible at trial 2) There can be no objection if it is reasonably calculated 2. Limitations Rule 26(b)(2) a. Discovery shall be limited if: 1) unreasonably duplicative or cumulative 2) another source is more convenient or less burdensome 3) party has ample opportunity to discover 4) the burden/expense outweighs the benefit in relation to: a) needs of the case b) amount in controversy c) resources d) importance of issues e) importance of proposed discovery in resolving issues 3. Protective Orders Rule 26(c) a. Request for a protective order to stop discovery if: 1) party is annoyed 2) embarrassed 3) oppressed 4) suffers undue burden or expense 4. Sequence and Timing of Discovery Rule 26(d) a. cannot seek discovery before 26(f) conference unless authorized by local rule or agreement of the parties 5. Discovery Devices a. Depositions Rule 30 7

1) Who a) parties and non parties b) non party requires a subpoena 2) When a) after 26(f) conference b) Limitations 1. notice required for people already deposed 2. maximum of 10 depositions a. anything over 10 needs a leave of court 3) How a) oral, video, or stenographer 4) Objections A) Permitted if good caused is shown B) objection is noted C) Answer 1. party can answer 2. lawyer can advise not to answer a. protective orders may be requested by the deposed party b. move to compel answer from deposed party b. Interrogatories Rule 33 1) Who a) any party 2) When a) once the party has been served b) after the 26(f) conference 3) Limit a) 25 per party b) over 25 requires leave of court or an agreement 4) Objections a) permitted with specific reasons b) employ other device to avoid answering an interrogatory 1. protective orders c) if you want the answer, move to compel c. Request for Production of Documents Rule 34 1) Who a) Parties and non parties b) Non party require a subpoena duces tecum 2) when a) after 26(f) conference 3) What a) documents 8

b) information c) tangible things d. Physical and Mental Examinations Rule 35 1) Who a) any party AND b) mental and physical condition must be in controversy c) Requires a court order and good cause e. Requests for Admissions Rule 36 1) Who a) only parties to the action 2) When a) after 26(f) conference 3) Responses a) admit b) deny 1. admit or deny all or portions of c) failure to respond is an admittance d) lack of information 1. requirements a. reasonable inquiry has been made AND b. still unable to produce information 4) Admission can only be made in the pending action and cannot carry over from other actions D. Exemptions from Discovery 1. Privileged a. communications that need not be disclosed 1) attorney-client 2) doctor-patient 2. Trial Preparation: Materials Rule 26(b)(3) WORK PRODUCT DOCTRINE a. documents and tangible things 1) prepared by or for a) the party or his attorney 2) in preparation for litigation ARE OBTAINABLE IF: b. party shows a substantial need AND c. will suffer undue hardship in obtaining the equivalent of the information d. Exceptions: The attorneys: 1) mental impressions 2) conclusions 3) opinions 4) legal theories 9

Case LawHickman v. Taylor Facts-- s attorney wanted oral and written statements of witnesses secured by the s counsel in the course of preparation for litigation. RuleOld Work Product Doctrine: Documents or tangible thingsbroader than Rule 26. Produced by the attorney in prep for litigationrule 26 is broader. No necessity exception in Hickman.

Case LawUpjohn v. United States FactsIRS wants questionnaires. argues that this is the work product. argues that the people who filled out the questionnaires are just employees and are not protected by the attorney-client privilege. RuleControl Group Test: officers and agentsresponsible for directing the companies actions in response to advice. HoldingControl group is not a good standard for attorney client privilege because lower employees will not disclose relevant information unless it is privileged. It is difficult to determine who is the client when dealing with the corporation. 3. Attorney-Client Privilege Balancing Test a. legal advice is sought b. from a professional legal adviser c. communications relate to that purpose d. made in confidence e. by the client f. permanently protected from disclosure by the client or his attorney 4. Experts Rule 26(b)(4) a. a party may depose an expert who may be present at trial 1) after their report is given b. non-testifying experts who are retained or specially employed are subject to discovery in only exceptional circumstances: 1) cannot duplicate the test by other experts 2) inability to obtain equivalent information elsewhere 3) extreme cost alone is insufficient Case LawIn Re Shell Oil Refinery FactsCCU exploded. Shell employees took reports but were taken off the witness list. wants to depose these employees. HoldingThere were no exceptional circumstances to allow the s attorney to depose Shells employees. Although the cost would have been high, the could have conducted its own tests. Although the experts were employees of , they were specially employed for this litigation. 10

Policyprotects trial strategy and prevents one party from having a free ride at the expense of the other party. E. Enforcing the Discovery Rules: Sanctions Rule 1. Motions: a. Failure to disclose b. failure to provide discovery c. evasive answers 2. Sanctions and Expenses a. Requires parties, attorneys, or both to: b. pay expenses 3. Court orders for Non-Compliance Rule 37(b) a. Facts will be established as true or proven b. Refuse to allow to support or oppose a designated claim c. Strike the pleadings d. Dismiss the action/default judgment e. Contempt f. Attorneys fees 4. Similarities between 37(b) and (d) a. costs of motions and attorneys fees b. the matter is established (facts taken as proven) c. prevent losing party from submitting proof d. dismissal, striking pleadings, default judgment 5. Differences a. failure to admit to medical exam in 37(b) 1) requires court order b. contempt of court in 37(b) 1) Requires court order 6. Difference between general litigation sanctions and discovery sanctions a. loser is not required to pay attorney fees b. sanctions 1) required to pay because: a) judge should not be involved in discovery Case LawCine 42nd Street v. Allied Artists Facts-- s attorney failed to obey orders compelling discovery. RuleFailure to obey an order due to inability, willfulness, bad faith, or fault compels the severest disciplinary measures under Rule 37. HoldingGross professional incompetence is included in the fault analysis. Policyensure the party will not profit from disobedience, deterrence, penalize only for bad faith.

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III.

Summary Judgment RULE 56 A. Claimant 1. may move anytime after the expiration of 20 days from the commencement of the trial/action OR 2. another summary judgment motion is made a. full or partial summary judgment B. Defending Party 1. summary judgment motion at any time C. Standard 1. Showing of no genuine issue as to any material fact 2. Moving party is entitle to judgment as a matter of law. a. must go beyond the complaint and answer (i.e. Rule 12(b)(6) motion to dismiss) b. facts may be undisputed BUT c. There still may be no claim D. Issues 1. allocation of Burden 2. When does evidence show no genuine issue of material fact: required showing to meet burden a. Burdens Generally 1) Production a) sufficient evidence to support claim b) ALLOWS jury to decide in the partys favor 2) Persuasion a) CONVINCES the jury that the partys claim is the winner b. The Shifting of Burdens 1) Moving party will always the burden of persuasion 2) If the moving party satisfies the initial burden of production, this burden shifts to the nonmoving party and moving party keeps the burden of persuasion. 3) If the moving party meets the burden of production and persuasion, the burden of production shifts to the nonmoving party. a) the nonmoving party must show evidence that would ALLOW a jury to find for either party b) otherwise the moving party wins c. s motion for summary judgment must show 1) genuine issue of material facts are proven (undisputed) 2) granted SJ as a matter of law d. s motion for summary judgment must show 1) No genuine issue of material fact 2) Entitled to judgment as a matter of law 12

a) needs to show 1. fails to establish and essential element of the Claim OR 2. disproves the s claim Case LawAdickes v. S.H. Kress & Co. Factsschool teacher, lunchroom, deprived service, conspiracy claim under 1983. s evidence stated no communication with officers, s evidence said there was officers in the lunchroom. moved for summary judgment HoldingCourt denied summary judgment because did not disprove liability or prove that lacked an essential element of the claim. Case LawCelotex v. Catrett Facts-- s husband died of asbestos. moved for summary judgment because failed to show asbestos was the proximate cause of the injury. HoldingThe moving party does not have to disprove the nonmoving partys case but must only show a failure of proof whether admissible in court or not. Case LawArnstein v. Porter FactsArnstein accuses Porter of copyright infringement. Porter denies allegations. HoldingThe court denied summary judgment because the jury could decide the credibility of the witnesses and determine who is lying. There was some proof of copyright infringement and there was a credibility issue. Case LawDyer v. MacDougall FactsLibel and slander claims. heard this from other people. moved for summary judgment. HoldingDemeanor evidence cannot be reproduced unless there is some corroborative evidence. IV. A. Trial Phases Outline of a Civil action 1. Outline of a Civil Action a. Selecting proper court 1) requires: a) Subject matter JD b) Personal JD c) Proper Venue b. Commencing the action 1) Service of process a) summons b) complaint c. Pleadings and parties 1) basis for identifying and separating the legal and factual contentions 2) what the party proposes to prove at trial 3) each party has notice so they can prepare their arguments d. Response 13

e. f.

g.

h.

i. 1) 2) 3)

j.

k.

1) D must respond/answer a) challenge by motion 1. motion to dismiss b) affirmative defenses c) Counterclaim d) Impleader s reply to the answer a) usually the pleadings end after answers Obtaining Information Prior to Trial 1) Depositions 2) Written interrogatories 2 3) Orders for a production of documents 3 4) Request for admissions 4 5) Physical examination (injuries) Summary Judgment 1) Assuming all facts as true in favor of the non-moving party 2) Judge can rule as a matter of law No Cause of Action Setting the Case for trial 1) Filing a note of issue a) case is given a number b) placed on the trial calendar The Jury and its Selection Jury is impaneled Questioned by Judges and the attorneys Challenge for cause = excused if: a) prior knowledge of the case b) or is a friend of the parties c) Peremptory challenge 1. limited number of these permitted to each lawyer 2. no reason needed to excuse the juror Trial 1) makes Opening Statements a) may wait until he presents his case 2) Direct Examination 3) Cross Examination 4) Re-Direct 5) Re-cross 6) rests-- may ask for a directed verdict on the ground that has not established a prima facie case 7) repeats the same process to present his case Submitting the case to jury 1) Jury instruction by judge a) summarizes facts and issues b) substantive law for each 14

c) general info on the credibility of witnesses d) tell the jury who has the burden of proof 2) Jury Returns the verdict a) generaljury determines the facts and applies the law in which they have been charged b) general with interrogatoriescombines the general verdict with several key questions that are designed to test the jurys understanding of the issues c) special verdictthe judge applies the law to the jurys answers and the judge determines which party prevails. l. Post-trial motions 1) Judgment NOVnotwithstanding the jurys verdict 2) New Trial m. The judgment and its enforcement 1) the judgment is final determination, absent the appeal n. Appeal 1) Writ of Certiorari to Supreme Court o. Conclusiveness of Judgments 1) Res Judicata: a thing decided and now rests B. Judgement as a matter of law Rule 50 1. Directed Verdict combined with Judgment N.O.V. 2. Directed Verdict a. Party can move after the opposing party has been fully heard b. After that, anytime before it reaches the jury 3. Judgment N.O.V. a. made after the jurys verdict b. ask the court to rule in moving partys favor regardless of the jurys verdict c. Right to Jury Trial VII Amendment: 1) NOV is justified because it is a continuation of the directed verdict 2) Requires a motion for directed verdict prior to NOV motion Case LawLavender v. Kurn Factsevidence of murder by a fucking HOBO, evidence of negligence by R.R. Co. RuleScintilla of evidence to support jury finding is sufficient. Holding--The verdict cannot be overruled by the appellate court. Case LawPA R.R. Co. v. Chamberlain FactsTrain cars separated and crashed, fell off and died. RuleSubstantial evidence to support the jurys verdict is required. Reasonable Juror Standard Rule 50(a). Holding-- wins because the evidence rested on mere speculation and conjecture.

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V.

The Erie Doctrine: Choosing Between State and Federal Law A. 28 U.S.C. 1652State laws as rules of Decision (JUDICIARY ACT OF 1789) 1. The laws of the several states shall be regarded as rules of decision in civil actions in the courts of the United States in cases where they apply SWIFT V. TYSON FactsUnder federal common law, a pre-existing debt was valid consideration. Under New York Common Law, that debt was no consideration. RuleJudiciary Actlaws of the several states Heldlaws is limited to state statutory law, not state common law. Federal common law applies. RationaleFederal judges found the law, did not create the law. This was thought to promote consistency throughout the federal judiciary. WRONG!!!! B. Erie DoctrineOverturns Swift 1. In diversity actions, state substantive law, statutory or common, applies, and federal procedural law applies. ERIE V. TOMPKINS FactsUnder Federal law, was treated as a licensee. Under state law, was a trespasser. In state court, no recovery. Held--The law to be applied in any case is the law of the state regardless if written by legislature or the courts. RationaleLaws includes common law. (1) Intent of the framers; (2) would forum shop; (3) Congress has no power to declare substantive rules of state common law, therefore it is unconstitutional (Federalism Concerns: X Amendment). ERIE DOES NOT QUESTION THE POWER TO APPLY FEDERAL PROCEDURAL LAW. 2. Problems a. What is Substantive and what is Procedural? 1) Substantiveprovides rights and obligations a) More likely to effect the outcome in actions SEE YORK 2) Proceduralenforcement of rights and obligations GUARANTEE TRUST CO. V. YORK FactsUnder federal common law, doctrine of latches applied. Under state common law, statute of limitations applied. HeldTo determine whether a law is substantive or procedural, the test is whether the law significantly affects the result of litigationOUTCOME DETERMINATIVE TEST. IF YES, the law is substantive and it applies. RationaleOutcome in state court and federal court sitting in diversity should be substantially the same. EXState law applies for issues of burden of proof, conflict of laws, and contributory negligence, contract. 16

APPLYING YORK: RAGAN V. MERCHANTS TRANS. AND WARE. CO. FactsClaim with 2 year statute of lim. served after 2 years, but filed before 2 years. Under federal rules of civil procedure, SOL tolls when filed. Under state law, SOL tolled when served. HeldState Service law applies according to York. SOL has run and is barred. RationaleThe cause of action was created by local law, local law should measure the SOL. RUSH V. STATE FARM INS. CO. FactsConflict of Laws: and from IN. Car accident in MN. wants MN law because there is no guest statute and a passenger could sue the driver. IN law had a guest statute which barred this action. HeldStates have their own choice of law provisions. MN law applies because it is easier to apply state law although you cannot get Personal Jurisdictionsimilar to minimum contacts analysis. b. Choice of Laws 1) Historicalrigid choice of law provisions a) ex. Accident in MN, apply MN law. 2) Factor Analysis a) fairness: parties should be entitled to their own state law b) interests of parties c) interests of the state d) Choice of law implicates Due Process: 1. Brennan test for choice of law a. Contacts with the state b. Convenience to the parties 2. Minimum contacts for personal JD is more difficult that the choice of law standard. c. Shift from Outcome Determinative Test to Balancing Test. BYRD V. BLUE RIDGE RURAL ELEC. COOP., INC. FactsUnder federal law, a jury decides the status of as a statutory employee. Under state law, a judge would decide s status. If statutory employee, only limited to Workers Comp. Recovery, and not recovery for a negligence action against . HeldOutcome determinative is insufficient, court must weigh state interest, countervailing federal interests, as well as the likelihood of outcome. Rationaleno strong state interest in using a judge to decide, strong federal interest in the right to jury trial, outcome could possibly be different, but not very likely because judges and juries can decide the same thing. 17

d. Federal Law Present: 28 U.S.C. 2072 Rules of Procedure 1) Supreme Court shall have the power to prescribe general rules of practice and procedure in the U.S. District Courts. 2) Such Rules shall not abridge, enlarge, or modify any substantive right. HANNA V. PLUMER FactsFederal Rule of civil procedure allows service at home. State law ONLY service in hand. HeldErie and York do not apply because federal rules of civil procedure are present. When Fed. R.Civ. Pro. is present, ask (1) does it conflict with state rule of procedure? If Yes, (2) is the Federal rule valid under the constitution and 2072? (Will be presumed valid and constitutional because the supreme court, congress, and judiciary committee have approved it). If so, apply federal procedural law. Rationale ERIE APPLIES ONLY IF THE FEDERAL RULE IS UNCONSTITUTIONAL OR THE FEDERAL RULE IS NOT PROCEDURAL. 2) Distinguishing YORK from HANNAWhy overrule the state procedural law in Hanna? a) York Outcome testno forum shopping and no inequitable administration of justice b) Hannaapplying fed rule over the state rule would yield no significant difference between federal and state outcome c) AND there would be no inequitable administration of justice d) ERIE DOES NOT INVALIDATE FED RULE OF CIV PRO STEWART V. RICOH FactsForum selection clause that stipulated any disputes to be tried in Manhattan court. Under federal law 1404 allowed transfer to state court. Alabama law opposes forum selection clause. sued in fed court in Alabama. moved to transfer to new York under 1404 under the forum selection clause. HeldFederal law applies. TEST: If federal law is present, (1) it must be sufficiently broad to control the issue before the court (does it cover the point in dispute); If yes, (2) is the statute constitutional? If yes, (3) apply federal statute. BURLINGTON V. WOODS FactsUnder federal rule of appellate procedure 38 the court MAY award damages for frivolous appeals. Alabama law provided damages equaling 10% of the judgment for frivolous appeals.

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HeldWhen reasonably necessary to maintain the integrity of that system of rules, although it incidentally affects a partys substantive rights, apply the federal rule. Reasonably necessary means when the rule can be classified as procedural. WALKER V. ARMCO STEEL CORP. FactsUnder federal law, Rule 3, an action is commenced when filing complaint. Under state law, the action is commenced when serving the . was not served until the statute ran but was filed before the statute. admits that SOL would bar the claim in state court, but argues that Rule 3 governs the manner in which the action is commenced and thus tolls the SOL. HeldApply state law because there is no conflict between federal and state law for commencing an action. Rule 3 only applies to the commencement of the action, state law applies to the commencement of the action AND SOL. Therefore, use the Erie analysis. RationalePurpose of SOL is to give peace of mind to . Purpose of Rule 3 is the starting point for filing requirements. The rules could exist side by side. Applying Eriethere would be no forum shopping problem, however, there would be inequitable administration of the laws because federal rule would allow the action to proceed when it should be tolled in the state. GASPERINI V. CENTER FOR HUMANITIES, INC. FactsUnder federal common law, shocks the conscience standard for appellate review of jury awards. Under NY statutory law, deviates materially standard for appellate review of jury awards. In order to shock the conscience, the award would have to be pretty fucking outrageous. HeldState law governs: statute implicates substantive rights because it is like a cap of s award for damages. Twin Aims of Erie: Forum shopping would be implicated because it would be easier to recover in federal court (shocks the conscience) rather than state court (deviates materially). Constitutionality of state statute there is no violation of the 7th amendment re-examination clause. BYRDstate has an interest because NY wants to regulate excessive jury awards; no countervailing federal interest because it would not violate the re-examination clause of the 7th amendment; outcome determinative because recover would be larger in federal court than in state court. DissentFederal rule 59 is on point because it allows order for a new trial for excessive jury awards. Therefore, apply HANNA. Scalias Erie testeither outcome would be similar if you apply the shocks the conscience standard or the deviates materially standard. __________________________________________________________________________________ STATE AND FEDERAL LAW DIFFERS: 19

I. IS THERE AN APPLICABLE FEDERAL RULE OR STATUTE A. IF YES: 1. DO FEDERAL AND STATE LAW CONFLICT: a. FEDERAL LAW MUST BE SUFFICIENTLY BROAD TO COVER THE ISSUE b. FEDERAL AND STATE LAW COVERS THE SAME ISSUE, BUT SERVE DIFFERENT PURPOSES c. IF YES, MOVE ON, IF NO (Federal and state laws are different), APPLY ERIE 2. IS THE FEDERAL LAW CONSTITUTIONAL? a. VALID EXERCISE OF CONGRESSIONAL POWER 1) ALWAYS PRESUMED 2) IF YES MOVE ON, IF NO, APPLY ERIE 3. IS THE FEDERAL LAW A STATUTE? a. IF YES, APPLY FEDERAL STATUTE 4. IS THE FEDERAL LAW A RULE? a. MUST BE PROMULGATED UNDER THE RULES ENABLING ACT b. MUST BE PROCEDURAL UNDER 2072 c. IF YES, APPLY FEDERAL LAW. B. IF NO: 1. APPLY Erie/ 1652 a. BYRD BALANCING TEST: 1) STATE INTERESTS 2) COUNTERVAILING FEDERAL INTERESTS 3) OUTCOME DETERMINATIVE (LIKELIHOOD, NOT POSSIBILITY) b. TWIN AIMS TEST: IF THE LAW WILL ENCOURAGE: 1) FORUM SHOPPING OR 2) INEQUITABLE ADMINISTRATION OF LAWS 3) THEN LAW IS SUBSTANTIVE AND STATE LAW APPLIES 4) IF NO, THE LAW IS PROCEDURAL AND FEDERAL LAW GOVERNS. __________________________________________________________________________________ ERIE ANALYSIS IDENTIFY THE STATE CLAIM V. FEDERAL RULE OR LAW A. NEGLIGENCE CLAIM: STATE COMMON LAW NEGLIGENCE V. FEDERAL COMMON LAW NEGLIGENCE = Erie ANALYSIS (STATE LAW APPLIED) B. BREACH OF TRUST ACTION: STATE STATUTE OF LIMITATIONS V. FEDERAL COMMON LAW DOCTRINE OF LATCHES = Erie ANALYSIS (STATE LAW APPLIED) C. STATE STATUTE OF LIMITATIONS TOLLED WHEN SERVED V. FEDERAL RULE OF CIVIL PROCEDURE TOLLED WHEN FILED = Erie ANALYSIS (STATE LAW APPLIED) D. CONFLICT OF LAWS BETWEEN STATES = Erie ANALYSIS

I.

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E. NEGLIGENCE CLAIM: STATE COMMON LAW V. CONSTITUTION = Erie ANALYSIS (FEDERAL LAW APPLIED) F. DAMAGES FOR AUTO ACCIDENT: STATE PROCEDURAL LAW FOR SERVICE V. FEDERAL PROCEDURAL LAW FOR SERVICE = HANNA ANALYSIS (FEDERAL RULE APPLIED) G. BREACH OF CONTRACT, FORUM SELECTION CLAUSE: STATE COMMON LAW PROHIBITING FORUM SELECTION CLAUSE V. FEDERAL STATUTE ALLOWING TRANSFER = HANNA ANALYSIS (FEDERAL STATUTE APPLIED) H. TORT ACTION: STATE COMMON LAW V. FEDERAL RULE OF APPELLATE PROCEDURE = HANNA ANALYSIS (FEDERAL RULE APPLIED) I. TORT ACTION, STATE PROCEDURAL LAW OF COMMENCING ACTION AND STATUTE OF LIMITATIONS V. FEDERAL PROCEDURAL LAW OF COMMENCING ACTION = Erie ANALYSIS (STATE LAW APPLIED). J. APPELLATE REVIEW OF JURY AWARD: STATE STATUTE V. FEDERAL COMMON LAW = Erie ANALYSIS (STATE STATUTE APPLIED). VI. Appeals A. 28 U.S.C. 1291 Final decisions of District Courts 1. The court of appeals shall have jurisdiction over all final decisions of the district court 2. Examples a. Summary judgment, motion to dismiss, motion for judgment on the pleadings, directed verdict, judgment NOV, 12(b)(6) 3. CAITLIN STANDARD: FINAL DECISIONS a. Ends litigation on the merits b. Leaves nothing for the court to do but execute the judgment QUACKENBUSH V. ALLSTATE FactsDistrict court abstained from hearing the case and remanded to state court. Is this appealable as a final decision? HeldAbstaining from hearing a case is final because it puts the litigants effectively out of court, and is more final than a stay which is appealable. A stay holds off from deciding until issue is resolved in a lower court. RationaleDEATH KNELLlack of certification is appealable because individual in class action suit would have minimal recovery if forced to sue alone. Therefore, it is appealable. COOPER abrogates the DEATH KNELL doctrine because fear of piecemeal litigation. Federal rule of Civil procedure 23(f) allows appeals for certification. GILLESPIE V. US STEEL FactsFederal Jones act claim and Wrongful Death Claim. District Court held that the Jones Act claim was exclusive and threw out the Wrongful Death Claim. Helddismissal of the wrongful death claim is a final order and is appealable.

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RationaleAvoid piece meal litigationif the court did not allow appeal at the time of dismissal, might have had to try the two cases separately when they couldve been tried at once. It was not final, but would be fair if appeal is allowed. FINALITY IS LIMITED TO MOST EXCEPTIONAL CIRCUMSTANCES B. Exceptions to Finality RuleCollateral Order Doctrine: Where order does not end the case on the merits, but decision is final and reviewable if: 1. District Courts order is dispositive on a disputed question 2. The disputed question is separable from the basic claim 3. the disputed question is effectively unreviewable on appeal COHEN V. BENEFICIAL INDUSTRIAL LOAN CORP. FactsCohen brought shareholders derivative action in federal court because he owned stock in the s company. State law required a bond to protect from frivolous claimassure that the could pay cost of litigation if he lost the case. The district court did not apply the NJ law. appealed. HeldAlthough this decision is not final in its traditional sense, the order is appealable. The order was dispositive on the disputed question (whether the bond law applied) because the court did not apply the NJ law. The question is separable from the basic claim because the basic claim was a shareholders derivative action, and the disputed question was whether a bond was required before trial. The disputed question was effectively unreviewable on appeal because the purpose was to prevent frivolous litigation against , and if the waited to the end of litigation to appeal, the purpose would not be served. DESKTOP V. DIGITAL FactsSuit for copyright infringement. Agreement between the parties. Desktop moved to dismiss. Desktop moved to vacate the dismissal and reinstate the case. District court granted the motion to vacate and proceeded to trial. Digital appealed this order to vacate dismissal. Appellate court affirmed. Heldthis order meets the first two prongs of the test. The third prong, effectively reviewable is not met because (1) a right irretrievably lost without more is insufficient to meet part 3 of the test; (2) there was a private agreement not to stand trial, not a statutory or common law right; (3) the right not to stand trial is not an indispensable agreement. Therefore, this can be effectively reviewed at the end of trial. RationaleCollateral order doctrine only applies to a small class of cases. 28 U.S.C. 1292(b) Interlocutory Decisions 1. Question of Law 2. Controlling 3. Substantial ground for difference of opinion 22

4. Immediate Appeal will advance the case 5. Court of Appeals a) Exercises discretion in ruling on the appeal b) Must agree with the district court CARDWELL V. R.R. CO. FactsNegligence claims. Jury awarded damages for FELA claim and ruled that the was negligent. Jury was unable to decide on the causal connection between injury and death. moved for judgment NOV on both counts because the jury should have found that was not cause of death. District Court denied the motions and certified the case under 1292(b) Heldthere is a question of law because the legal standard for NOV along with factual issues of causation is the legal question. The law is controlling because if the trial court found the negligent it would end the litigation. There is substantial ground for difference of opinion because lawyers and judges argue. However, immediate appeal would not advance the case according to the appellate court because this case could be retried in less time (3-4 days) rather than waiting for the appeal.

D. Mandamus 1. An order from higher court ordering lower court to take action 2. Categories: a. Conventional 1) Requires judge to take action or refrain from acting 2) Because of usurpation of power b. Supervisory 1) Where no usurpation of power is presents 2) Appellate courts still play a supervisory role over lower court c. Advisory 1) Give advice to the judge below on how to exercise power 3. Difference between Mandamus and Appeal a. Mandamus 1) Immediate response 2) Issued against the judge 3) Compel the judge to take action 4) No need for final judgment or collateral order (delay issues) b. Appeals 1) Requires final judgment or collateral orders 2) Review of the case 3) Not made against the judge WILL V. U.S. 23

Facts-- wanted statements and names. Judge ordered to give up the names and threatened to dismiss the action. argued that Rule of evidence 7(f) does not require to receive names and statements. US applied for stay. Granted, and appellate court issued writ of mandamus against judge Will. HeldJudge Will prevailed because he never violated 7(f). appellate court never stated or explained reasons for their decision to overturn Judge Will. Judge Will did not deliberately disregard Criminal Rules. Rationalemandamus is only proper when Judge deliberately disregards rules and usurps power. You will lose on mandamus because it is reserved for most egregious circumstances. Will kills the other forms of mandamus. The others are reserved for the states. E. Fed. R. Civ. Pro 54(b)Partial Final Judgment Rule 1. Multiple parties OR 2. Multiple claims AND 3. Judge directs and expresses a. entry of final judgment on one or more but not all claims AND b. no just reason for delay. 1) Judicial Administrative interests a) Minimize piecemeal litigation b) No reason for keeping all claims together 2) Equities to the parties 4. Difference between 1291, 1292(b), and 54(b) a. 1291 1) Final judgments and 2) Collateral orders separate from the merits b. 1292(b) 1) Issue needs to be resolved by appellate court before the end of litigation 2) Non-final orders 3) Appellate court has discretion to resolve the matter c. 54(b) 1) Partial final judgments 2) Deals with the merits (mini cases within one big case) 3) District court has discretion 5. Purpose of 54(b) a. Narrows the issues b. Cleaner, easier case to deal with c. Weed out claims as fast as possible when multiple claims are tried at once CURTISS WRIGHT V. GE 24

FactsCurtiss sued GE for breach of 21 contracts. One claim was for 19m. GE countered for 1.9m and 52m. Curtiss had to give release to GE in order to be paid. District court ordered in favor of Curtiss on 19m balance while other claims are pending. GE appealed. HeldJudgment on the 19m claim is final and appealable. There are multiple claims. The order was final as to the 19m claim but not the pending claims. There was no reason for delay. There was no reason to keep these claims together so the judicial administrative interests would not be implicated. The equity to the parties is as follows: Curtiss would lose the market interest rate if GE did not have to pay at the time this order was entered. If Curtiss had to wait, he would only receive the 6% statutory rate for prejudgment, and the case was thought to continue for many more years. F. Appeal of Interlocutory Injunction 1. Rule 65(a)(1) Preliminary Injunction a. Stop or require someone from taking the action b. Preliminary Injunctions 1) During the pendency of the action 2) Prevents irreparable harm during the action 3) Preserves the status quo 4) Balancing Test a) Harm to the if granted b) Harm to if not granted c) Likelihood of success on the merits d) Harm to the public 2. Temporary Restraining Order Rule 65(b) a. Immediate and ex parte (w/o the other party) b. No notice required if 1) attempted to give notice and was unable to OR 2) notice was ineffective 3) gives reasons why notice could not be given c. Strong showing in the facts of 1) Immediate AND 2) Irreparable Harm d. Lasts until preliminary injunction is decided GULFSTREAM V. MAYACAMAS HeldInjunctions are appealable under 1292(a)(1). A stay does not act as an injunction as it did when law and equity courts were split. No need for this rule today because there is no split in law and equity. The alternative approach to appeal stays include collateral order doctrine 1292(b) permissive appeal, and mandamus. 25

VII.

Preclusive Effects of Judgment: Res Judicata and Collateral Estoppel A. Claim Preclusion (Res Judicata) 1. An earlier CLAIM will bar a later suit IF: a. The claim is final, valid, and on the merits. 1) Final a) Cannot be pending 2) Valid a) Proper exercise of jurisdiction over the parties and the claims 3) On the merits a) Not procedural b) Decides the CLAIM b. The later claim is the same CLAIM or cause of action in the earlier suit 1) must be the same TRANSACTION or SERIES OF TRANSACTIONS OR 2) Common Nucleus of Operative Facts c. The later claim must involve the same PARTIES or THOSE IN PRIVITY WITH THEM 1) Privity a) Acquiring rights or claims from the first party involved in the earlier suit MANEGO V. ORLEANS BOARD OF TRADE FactsEarlier Claim = various civil rights claims against 3 . Later claim = antitrust claims against virtually the same 3 . Same facts supporting both claims, allegations that the s motivations were different in both claims. lost the earlier claim. raises Res Judicata to bar the second claim. HeldMotion granted to because the earlier claim was final, valid and on the merits (summary judgment award). Second, although the motivations in s claim were different, the second claim was the same transactional events that served a basis for the first claim. Finally, the were the same. B. Issue Preclusion (Collateral Estoppel) 1. An earlier ISSUE will bar litigation of that ISSUE although there are different claims and parties so long as the ISSUE has been litigated IF: a. The ISSUES in question are IDENTICAL. b. The earlier ISSUE has been LITIGATED, DECIDED, and was NECESSARY to the courts judgment c. Only applies against a PARTY WHO LITIGATED THE ISSUE in the earlier case. 1) EXAMPLE 26

a) Negligence CLAIM i. Duty, breach, causation (factual and proximate) AND damages ii. RES JUDICATA bars re-litigation of the ENTIRE CLAIM if its the same TRANSACTION OR OCCURRENCE b) Negligence ISSUE i. Material fact pertaining to an ISSUE of the claim ii. Collateral estoppel bars re-litigation of that ISSUE 2. Alternative findings NOT subject to Issue Preclusion (Collateral Estoppel) IF: a. Incidental, b. Collateral, OR c. Immaterial to the judgment 3. PRIVITY in Issue Preclusion (Collateral Estoppel) a. Legal definition (CASEBOOK) 1) So identified with later party 2) Represents the same legal right b. Due process implies: 1) A nonparty should not be bound by a prior judgment UNLESS a) Nonparty had an opportunity to be heard in the earlier suit OR b) Was so identified with the earlier party that the nonpartys interests were represented c. Benson and Ford Definition 1) Nonparty who SUCCEEDS TO A PARTYS INTEREST OR 2) Nonparty who CONTROLLED the original suit OR a) Effective CHOICE OF LEGAL THEORIES AND PROOFS b) Advanced on BEHALF OF THE PARTY in the later suit c) Control over the OPPORTUNITY TO OBTAIN REVIEW 3) Nonparty whose interest were ADEQUATELY REPRESENTED a) VIRTUAL representation b) First party was CLOSELY ALIGNED with the nonpartys interests 4) EXPRESS or IMPLIED LEGAL RELATIONSHIP between parties raising identical issues LITTLE V. BLUE GOOSE MOTOR FactsFinding 1: liable for damage to bus and not contributorily negligent b/c s recovery would be completely barred. s executor sues for general negligence

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and wrongful death from the same accident with the bus. raises issue preclusion HeldThe issue in Finding 1 was negligence of BOTH and so that issue cannot be re-litigated. HALPERN V. SHWARTZ FactsCreditors filed petition for bankruptcy against Evelyn under (3) acts of bankruptcy. Evelyn contested the petition. The Judge found she committed all three and adjudged her a bankrupt. Only one act rested on intent to fraud or hinder creditors. Affirmed on appeal. Referred to the referee in bankruptcy. Evelyn sought to discharge the bankruptcy. Trustee moved for summary judgment under collateral estoppel theory. Granted. Affirmed by d. court. Reversed here. HeldThe prior judgment rested on two or more independent and alternative grounds. It is not conclusive as to other issues in trial of objections to discharge because those issues were necessarily found to establish only one ground. BENSON AND FORD V. WANDA FactsShelby v. Wanda for anti-trust claim. During the pendency of that decision, Benson v. Wanda under an identical claim. Benson had the same attorney, testified in the Shelby suit, and alleged the same claim arising from the same facts as Shelby. Wanda won the earlier suit against Shelby and moved for summary judgment on collateral estoppel grounds because Benson and Shelby were in privity. HeldThere was no legal relationship between Shelby and Benson and therefore no privity. RationaleBenson has a due process right to be heard, he could not use collateral estoppel against Wanda if Shelby would have won because Benson would have been compelled to join the litigation, and Wanda could have moved to consolidate Bensons claims with Shelbys.

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