CARLSON CIVIL PROCEDURE A-- FALL 2011 I. DUE PROCESS a. What is due process i. Opportunity to be Heard ii.

Notice Given iii. Right to hear case against you iv. Ability to question those with allegations against you v. Present arguments orally and evidence on your defense vi. With an impartial decision maker The Due Process Clauses (found in 5TH and 14TH Amendment) deny effect to adjudications unless the parties to be bound were given prior notice and an opportunity to participate. Notice that satisfies due process may be found from proper service of process or other recognized alternatives. Process usually consists of a summons directing defendant to respond or appear in court on penalty of default. Service is the formal means by which process is delivered to a defendant. b. RULES: i. FIFTH AMENDMENT 1. No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation a. Can t be forced to testify unless indicted by grand jury b. Double jeopardy c. Can t be forced to be witness in own criminal trial d. Can t be deprived of life, liberty, or property without due process ii. FOURTEENTH AMENDMENT 1. Nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. iii. FRCP 1: SCOPE AND PURPOSE 1. These rules govern the procedure in all civil actions and proceedings in the United States district courts, except as stated in Rule 81. They should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding. iv. FRCP 2: ONE FORM OF ACTION 1. There is one form of action the civil action. c. CASES i. Goldberg v Kelly 1. DUE PROCESS RIGHTS 2. FACTS: Welfare benefit Kelly was given notice that his entitlement to welfare benefits was withdrawn. Notice sent to him after benefits were suspended, but he was able to review the case at an evidentiary hearing. Kelly claims this violates his due process rights under 14th amendment [no state (New York) deprive (of Benefits) a person (Kelly) of life, liberty, or property (property) without due process (no hearing allowed until after the fact) of law.] State argued that holding a hearing beforehand would drain too many resources,

CARLSON CIVIL PROCEDURE A-- FALL 2011 as most recipients whose benefits are terminated do not contest to the suspension. 3. ISSUE: are the procedures for welfare notification sufficient under due process? 4. HOLDING: due process requires the evidentiary hearing to be held BEFORE benefits are terminated. Confrontation needs to occur before letter is sent. The risk of an erroneous deprivation of such interest through the procedures used, and the probable value; if any, of additional procedural safeguards ii. MATHEWS V. ELDRIDGE 1. DUE PROCESS RIGHTS 2. FACTS: Eldridge had his social security benefits terminated, with an option to review the case only after 6 months without benefits. Eldridge files second lawsuit challenging the validity of fed and state agency s procedures claiming they violate his 5th amendment rights of due process. nor be deprived of life, liberty, or property, without due process of law 3. ISSUE: Has the SSA acted unconstitutionally by terminating a recipient s rights and not allowing them to request a review until 6 months have passed, thus leaving recipient without benefits for that time period? 4. HOLDING: an evidentiary hearing is not required prior to the termination of disability benefits and that the present administrative procedures fully comport with due process. a. Distinguish from Kelly: court claims welfare recipients are in more dire situations than social security benefits, and are more deprived when benefits are discontinued. II. US COURT SYSTEM a. RULE: i. US CONSTITUTION ARTICLE III SEC I 1. The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office. b. STATE i. TRIAL ii. APPELLATE iii. STATE SUPREME COURT/COURT OF APPELLATE JURISDICTION c. FEDERAL i. US DISTRICT COURT ii. US CIRCUIT COURT OF APPEALS iii. US SUPREME COURT d. TRIBAL i. TRIAL ii. APPELLATE WHERE CAN THE SUIT BE BROUGHT a. RULES i. U.S.C. S1331

III.

CARLSON CIVIL PROCEDURE A-- FALL 2011 1. The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States ii. U.S.C. S1332- Complete Diversity to be in Fed court 1. District courts have jurisdiction when: a. MATTER IN CONTROVERSY EXCEEDS $75,000, AND b. Is between: i. Citizens of Different States ii. Citizens of a State and Citizens of a foreign state iii. Citizens of Different States and also citizens of foreign states iv. Also explains class action jurisdiction v. Corporations are citizens in state of main place of business b. JURISDICTION i. PERSONAL JURISDICTION 1. IN PERSONAM a. Does this court have power or authority over this defendant? b. Defendant must have minimum contact with the state in which suit is held against them- Doctrine of personal jurisdiction c. Decided by: Domicile, Consent, Physical Presence, Minimum Contact i. Domicile is established by physical presence in a place in connection with a certain state of mind concerning ones intent to remain there ii. Consent is established when defendant is not served in the jurisdiction, but voluntarily appears and submits to jurisdiction iii. Physical Presence is established when defendant is served in the jurisdiction. This is sufficient for jurisdiction. iv. Minimum Contact is established when defendant has sufficient dealings or ties to the jurisdiction (ie business) 2. IN REM JURISDICTION a. Focuses on property within the forum and can only be used to adjudicate claims regarding such property ii. SUBJECT MATTER JURISDICTION 1. Courts must have power to hear the issue of the case. 2. Most state courts are General Jurisdiction 3. ALL federal courts are Limited Jurisdiction a. Claims arising under the constitution, laws, or treaties of the US b. Claims that are brought by people who have citizenship issues 4. DIVERSITY JURISDICTION- U.S.C. S1332 a. US District court has power to hear a case where the parties are of diverse jurisdictions. b. Mostly only allowed if complete diversity parties are not from the same state. c. VENUE i. Rule: U.S.C. s1391 (not in full) 1. Trial may only be brought in a. Judicial district where any defendant resides, if all reside in same state b. Judicial district in which a substantial part of the events of the claim took place c. Judicial district in which defendant is subject to personal jurisdiction

CARLSON CIVIL PROCEDURE A-- FALL 2011 ii. The proper and most convenient location for a trial. iii. For civil cases, venue is usually the district or county which is the residence of a principal defendant, where a contract was executed or is to be performed, or where an accident took place. d. JURISDICTION V VENUE i. JURISDICTION: LEGAL AUTHORITY ii. VENUE: LOCATION OF COURT e. CASES i. Hawkins v. Masters Farms (both based in KS) 1. Hawkins suing Masters Farms in death of her husband, Creal. Filed suit in Federal Court claiming diversity jurisdiction exists between the parties. Creal lived in MO his majority of his life, but was currently living in KS, married to a KS citizen, established a physical presence and intent to remain in KS.

CARLSON CIVIL PROCEDURE A-- FALL 2011 2. Court Ruled: motion to dismiss granted due to lack of subject matter jurisdiction. Holds that Creal was a citizen of the state of Kansas at the time of his death. Plaintiff failed to prove that complete diversity exists. Decedent was domiciled in KS at time of death. IV. PLEADING: First stage/initiates lawsuit. Plaintiff files complaint. Defendant answers. =FRCP8 a. Historically i. Common Law: very strict rules regarding pleading. Very specific forms of action (covenant, trespass, etc). If case did not fit in, it was thrown out. ii. Code pleading: abolished common law forms of actions. Important emphasis on the facts of the pleading. iii. Notice Pleading: focused not on facts. Required short statement of claim that the pleader is entitled to relief. Four functions of Pleadings Historically 1. Give notice 2. Set forth facts believed by each party 3. Narrow the issues 4. Provide means for speedy disposition. b. MODERN PLEADING GOVERNED BY RULE 8 i. RULE 8: Governs the complaint and answer to a complaint. ii. SUFFICIENCY: Pleading is now sufficient if pleader asserts some theory that would entitle the claimant to relief. iii. FUNCTION: Give notice of claims and defenses adequate for the opposing party to make discovery requests and prepare for trial. iv. COMPONENTS: complaint, answer, and sometimes responses.

c. FUNDAMENTS OF PLEADING i. What info court wants to know about potential case 1. What kind of case is it? 2. Does it belong in this court/jurisdiction? 3. Does it belong in any court/substantive claim? ii. What an effective pleading does 1. Tells plaintiff s side of story 2. Gives other side notice of dispute 3. Allows defendant the opportunity to respond, with chance for quick and inexpensive victory via motions to dismiss 4. Paves way to discovery for plaintiff, if approved.

d. SANCTIONS UNDER RULE 11 i. Penalties or other means of enforcement used to provide incentives for obedience with the law, or with rules and regulations. Usually monetary fines/attorney fees for other party. The central purpose of Rule 11 is to deter baseless filings in district court. UNDER RULE 11(D) THESE SANCTIONS DO NOT APPLY TO DISCOVERY. ii. Courts may impose FRCP 11 sanctions of their own initiative but generally a FRCP 11 motion is made by the pleader s adversary iii. RULE 11(a): requires that every pleading, written motion, and other paper be signed by an attorney of record, or the party, if unrepresented by counsel;

iv.

v.

vi. vii.

CARLSON CIVIL PROCEDURE A-- FALL 2011 RULE 11(b): Signing party certifies that, to the best of his knowledge, information, and belief formed after reasonable inquiry. 1. The pleading is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation 2. The claims, defenses, and other legal contentions therein are warranted by existing law or by a non-frivolous argument for the extension, modification, or reversal of existing law or the establishment of new law 3. The allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery, AND 4. The denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief RULE 11 (c)(1)(A) Requires 21 day waiting period between notifying party of motion and actually filing motion in the court. Gives defendant time to correct or withdraw the offending paper Most Common Rule 11 Violation: Failure to conduct adequate factual investigation. CASES INVOLVING RULE 11 SANCTIONS 1. WALKER V NORWEST CORP 108 F.3D 158 (8TH CIR 1999) P 377. JURISDICTION NOT PROPERLY ASSERED IN PLEADING. Massey violated rule 11 (b) (2) when he didn t do the research of jurisdiction before filing and (3) when didn t stop advocating the issue after the court ruled it to be incorrect. Massey represents Jimmy Lee Walker, and his guardian, Cynthia Walker. Massey filed complaint on behalf of Walker s, against Norwest corp alleging breach of fiduciary duty. Claimed diversity jurisdiction as some of the defendants involved are in states other than South Dakota. Upon receiving the complaint, Attorneys for Norwest sent Massey a letter stating that on face, there is no diversity jurisdiction in this case (Federal diversity jurisdiction required complete diversity, so that no defendant was a citizen of the same state as any plaintiff) and to dismiss the complaint, otherwise they would seek sanctions. Massey disregarded the letter. Norwest moved to dismiss and for an award for sanction. District court awarded sanctions against Massey for filing a diversity case in when he failed to plead complete diversity of citizenship, but instead, pleaded as though there was not complete diversity. District court awarded Norwest the sanctions, and states that they did not abuse their power in doing so, as the burden was on the plaintiff to prove that diversity jurisdiction existed in this case, which they failed to do bc it was too burdensome 2. CHRISTIAN V MATTELL, INC 286 F.3D 1118 (9TH CIR 2003) P381 PLAINTIFF FILES CLAIM WITHOUT DOING BASIC RESEARCH BEFORE THAT WOULD HAVE PROVEN NO SUFFICENT CLAIM Claudine Christian developed and marketed a USC doll when she was an undergraduate student named claudene . Doll has blonde hair blue eyes and face paint. Filed a complaint against Mattel, alleging they obtained one of the copyrighted claudene dolls and infringed its overall appearance. Sought damages in amount of $2.4 Billion and various forms of injunctions. Two

CARLSON CIVIL PROCEDURE A-- FALL 2011 months after complaint, Mattel moved for summary judgment; offering evidence that the doll they supposedly made after copying claudene was copyrighted in 1991, as is imprinted on the back of the doll s head. At a follow-up counsel meeting, which mattel video taped, they informed Hicks that his complaint was frivolous. Hicks declined their invitation to inspect the doll, and even threw the doll across the room. Afterwards, mattel served hicks with a motion for Rule 11 sanctions. Hicks declined to withdraw the complaint during the 21-day period. Mattel Filed and was granted summary judgment and Rule 11 Sanctions by District Court. filed a meritless claim against defendant A reasonable investigation by Mr. Hicks would have revealed that there was no factual foundation for the copyright claim . COURT ordered him to pay the company s $501,565 attorney bill e. STEP ONE: FILING A COMPLAINT--- (PLAINTIFF) i. RULES FOR COMPLAINT 1. FRCP 8: GENERAL RULES OF PLEADING a. (a) Claims for relief b. A pleading that states a claim for relief must contain: i. A short and plain statement of the grounds for the court s jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support; ii. A short and plain statement of the claim showing that the pleader is entitled to relief; and iii. A demand for the relief sought, which may include relief in the alternative or different types of relief. c. (d) Pleading to be Concise, direct; alternative statements, inconsistency i. In General Each allegation must be simple, concise, and direct. No technical form is required ii. Alternative Statements of a Claim or Defense: A party may set out 2 or more statements of a claim or defense alternatively or hypothetically, either in a single count or defense or in separate ones. If a party makes alternative statements, the pleading is sufficient if any one of them is sufficient. iii. Inconsistent Claims or Defenses: A party may state as many separate claims or defenses as it has, regardless of consistency. 2. FRCP 7: Addresses types of pleadings that are allowed. 3. FRCP 9: Addresses special pleadings. 4. FRCP 10: Forms of Pleadings ii. PLAUSIBILITY of complaint 1. Short, plain statement 2. Claim that is plausible on its face not just possible 3. Allegations must allow court to draw reasonable inferences. 4. PLEADING STANDARD BY CASE COMPLAINT MUST STATE ENOUGH FACTS TO RAISE A REASONABLE EXPECTATION THAT DISCOVERY WILL REVEAL EVIDENCE OF THE NECESSARY ELEMENT.

CARLSON CIVIL PROCEDURE A-- FALL 2011 a. Conley v Gibson (1957) i. Court had broad view of pleading standard ii. Supreme Court rejects lower courts requirement of more detailed pleadings. iii. Purpose of pleading is to facilitate proper decision on merits iv. Pleadings should not be in detail; short, plain statement of the claim that gives defendant fair notice v. Views pleadings in favor of plaintiff and will only dismiss if it appears BARD that plaintiff cannot prove facts to support her claim. b. Bell Atlantic Corp. V Twombly (2007) i. Case was based on speculation. Court disagrees with Conley standard. Pleading must do more than merely provide notice to defendant. ii. Factual allegations in pleading must raise a right to relief above the speculative level. iii. The Court insisted it was not heightening the pleading standard, but required allegations of sufficient detail to cross the line from conceivable to plausible . c. Iqbal v. Ashcroft i. whether conclusory allegations that high-level government officials had knowledge of alleged wrongdoing by subordinate officials are sufficient to survive a motion to dismiss ii. Allegations made by plaintiff were conclusions without evidence. iii. Complaint alleged but has not shown that pleader is entitled to relief. iv. To survive a motion to dismiss, a complaint must contain sufficient factual matter to state a claim plausible on its face. iii. SUMMONS 1. Prepared by Plaintiff to be served on defendant along w/copy of complaint. a. RULE 4(A)1 CONTENTS i. Name of Court and Parties ii. Directed to the Defendant iii. Name and Address of Plaintiff s attorney, or just plaintiff if unrepresented iv. Time within which defendant must appear and defend v. Notify defendant that failure to appear/defend results in default judgment vi. Must be signed by clerk (upon Issuance Rule 4B) vii. Bear the court s seal (upon Issuance Rule 4B) 2. Officiated by Court: Rule 4b ISSUANCE 3. Served to Defendant 4(c) a. Formal Service 4(e) i. By any nonrelated party aged 18 years or older ii. Or by court Marshall b. Waiving Service 4(d)

CARLSON CIVIL PROCEDURE A-- FALL 2011 i. Waiver sent in writing to defendant, including complaint, summons, and 2 copies of waiver of service form, along with a prepaid envelope to mail it back ii. BENEFIT TO DEFENDANT FOR WAIVING SERVICE 1. Rule 4-d-1&2= if defendant doesn t waive with good reason, he incurs cost for more formal service 2. Defendant will get 60 days to answer complaint if waived service, rather than 21 days after being served formally. 4. SERVICE PRACTICALITY: Notice should be flexible depending on the case. If there are many parties in the case, mailing is sufficient. If there are only 3 parties in the case, notice should be dealt with in a different way because the cost of serving 3 people is much less 5. CASES INVOLVING NOTICE ISSUES a. MULLANE V CENTRAL HANOVER BANK & TRUST 339 U.S. 306 (1950) P 121 NOTICE STATUTE OF NY UNCONSTITUTIONAL. NOTIFYING PEOPLE VIA NEWSPAPER IS UNCONSTITUTIONAL UNDER 14TH AMENDMENT DUE PROCESS CLAUSE. DEPRIVATION OF PROPERTY Bank wanted to become the common trustee of the account. In March 1947, they petitioned the Surrogate s Court to settle its first account to become common trustee. After being granted this, the bank complied with state statute regarding notice: NY Banking Law S100c(12), which only required notice by newspaper publication for no less than once a week for four consecutive weeks, needing only to name the trust company, name of the establishment of the common trust fund, and a list of all participating estates, trusts, or funds. Notified by mail only people who were entitled to share in the income. Mullane objected, stating the notice and the statutory provisions for notice to beneficiaries were inadequate to afford due process under the 14th amendment and thus, the court was without jurisdiction to render a final and binding decree. Mullane had argued that this was essentially an in personam action, and that the Surrogate could not exercise jurisdiction on out-of-state residents. Because the actions were within compliance with the statute, Courts overruled the objection. SUPREME COURT REVERSED: The notice of judicial settlement of accounts by NY law is incompatible with the requirements of the 14th amendment. Bank could have sent notices to each person easily and without costing too much. Could have sent such notices along with the bank statements f. STEP TWO: RESPONDING TO A COMPLAINT--- (DEFENDANT) party can default, pre-answer motion, or answer. i. DEFAULT 1. Arises when defendant fails to respond to complaint ii. PRE-ANSWER MOTION RULE 12 1. Rule 12(b) (1) Lack of subject-matter jurisdiction;

CARLSON CIVIL PROCEDURE A-- FALL 2011 (2) Lack of personal jurisdiction; (3) Improper venue; (4) Insufficient process; (5) Insufficient service of process; (6) Failure to state a claim upon which relief can be granted; and (7) Failure to join a party under Rule 19 2. Filing a motion under rule 12b Stops the clock for defendant s answer a. After court dismiss a motion, defendant gets 21 days to answer. However, it usually takes a court 12-18 months to rule on a motion. b. Courts know defendants file motions to buy time. Rule 12g and 12h try to safeguard against motion misuse. 3. Rule 12g- file multiple motions together 4. Rule 12-a-1= governs time you have to respond to complaint 5. RULE 12 PLEADING RELATED MOTIONS a. 12E- MOTION FOR A MORE DEFINITE STATEMENT i. Used rarely and almost never successfully invoked ii. If claim is so vague, a 12b6 is usually filed B. 12F- MOTION TO STRIKE i. Commonly used to challenge part of a pleading ii. Also used to remove irrelevant or prejudicial statements C. 12C- MOTION FOR JUDGMENT ON THE PLEADINGS i. When they respond to an allegation with a defense, and that defense can be enough to judge the case, based on the pleadings alone. ii. When further development of the facts will not assist in deciding the case iii. ANSWER When a defendant cannot demur the complaint, or dispose of it with a motion under 12-b6, he must respond to the factual allegations, either by denial or affirmative defenses 1. Denial a. Rule 8b: Deny only those allegations defendant actually disputes b. Rule 8b6: Any allegation not denied is considered admitted. c. General Denial: Denial of each and every allegation of complaint. i. Typically not plausible ii. Courts do not look favorably on such denials iii. Defendant who wrongfully uses general denial can be sanctioned 2. Affirmative Defenses a. Rule 8c: general list of affirmative defenses b. Any issue that allows the defendant to win even if all allegations are true c. Must be pled in answer or pre-answer motions. Usually if they are not pled then, they are waived. 3. COUNTERCLAIM and REPLY a. Rule 13: COUNTERCLAIMS b. RULE 7(A): if in defendant s answer, he introduces a new, or counterclaim, plaintiff must REPLY within 20 days of service. Attorney need not reply to affirmative defenses and only needs to reply to counterclaims that are listed as such. However, to be cautious,

CARLSON CIVIL PROCEDURE A-- FALL 2011 sometimes attorneys reply to both to avoid inadvertent admission. 4. CASES a. ZIELINSKI V PHILADELPHIA PIERS 139 F.SUPP 408 (E.D. PA 1956) P393 DEFENDANTS GENERAL DENIAL WAS NOT SPECIFIC ENOUGH. Zielinski was operating a forklift when he was injured by Johnson. Zielinski sued Philadelphia Piers and alleged his injuries were caused by Johnson s negligent operation of a forklift owned by the company. Zielinski alleged that Johnson was an employee and agent of Philadelphia Piers at the time of the accident. Johnson had worked for Philadelphia Piers for 15 years and was not aware that the company had transferred ownership of the operation and that he had in fact been working for Carload Contractors for the past year. Johnson mistakenly testified that he had been working for Philadelphia Piers. Philadelphia Piers had made a general denial of the allegations in the complaint but did not clarify that it had transferred the operation to Carload Contractors. Carload, Philadelphia Piers, and the insurance company that provided insurance to both companies were aware of Zielinski s error. Zielinski did not discover that he had sued the wrong company until the pretrial conference. Zielinski moved to estop Philadelphia Piers from denying the facts alleged in the complaint because the company had allowed him to believe that they were true. COURT RULES IN FAVOR OF PLAINTIFF: Principles of equity require a defendant be estopped from denying agency because this will deprive the plaintiff of his right to trial. Had the defendant(s) testified accurately, plaintiff would have had time to amend his action within the statutory period of limitations. The court held that Philadelphia Piers should have made a specific denial of the parts of the complaint it knew to be false and admitted the parts which were true. A specific denial would have warned Zielinski of his mistake. Also, bc insurance company is the same for both companies, they would have to pay regardless. iv. AMENDING A PLEADING RULE 15 1. Rule 15 governs the changes one seeks to make to his original pleading after information has been found during discovery that changes the story/allegations 2. 15(a)1: party may amend its pleading once as a matter of course within (A) 21 days of serving it or (b) 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier. 3. 15(a)2: In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires. (3): responses to amended pleadings: within 14 days of service, within the time remaining to respond to the original pleading whichever is later. 4. 15(c)1: allows you to amend after SOL has run so long as the new claim relates to the original 5. CASES

CARLSON CIVIL PROCEDURE A-- FALL 2011 a. BEECK V. AQUASLIDE N DIVE CORP. 562 F.2D 537 (8TH CIR 1977) P403 Allowing leave of court for amendment Beeck was severely injured after using a water slide supposedly manufactured by Aquaslide. Owner of property insisted they purchased slide from aquaslide, and several insurance companies came and verified that the corp. was the manufacturer. Aquaslide admitted on answer that it did manufacture the slide. Upon deposition, the company realized they did not make the slide in question, and sought leave to amend from the court. Granted. On separate trial, it was found that Aquaslide did not manufacture the slide in question, so case at trial court went to summary judgment in favor of defendant. Plaintiff appealed stating trial court abused its discretion by (a) allowing leave to amend for Aquaslide after statute of limitations had run and (b) granting them a separate trial to determine if the company manufactured the slide. Supreme court affirmed: trial court did not abuse its discretion A) must grant leave to amend when justice so requires . Defendant did not plead in bad faith, and thus justice for them is the leave to amend. (b) separate trial allowed defendant to challenge a disputed factual issue that would be prejudice to them if not granted. *under 15C, plaintiff could file a claim against the correct manufacturer although the statute of limitations had run. b. MOORE V BAKER 989 F.2d 1129 (11th cir. 1993) P 409 AMENDMENT OF CLAIM DID NOT RELATE BACK TO ORIGINAL Moore consulted Dr Baker about a blocked artery. He informed her he could perform surgery but that there would be risks. Moore consented to the procedure and was severely and permanently disabled as a result. Filed complaint on last day before statute of limitation had run alleging Baker violated informed consent law by not introducing other forms of care. Baker filed motion for summary judgment. Moore then moved to amend her complaint to allege negligence by Baker. District court denied new claim as it was barred by SOL. According to 15c2, an amendment is not barred by SOL if the new claim was attempted to be set out in the original pleading; giving notice to the defendant of the possible claim against him. The allegations in the original complaint did nothing to put Baker on notice that the new claims of negligence might be asserted. The original complaint only focused on Baker s actions BEFORE the surgery, and not any negligence causing her condition thereafter. 11th circuit held that the amended complaint does not relate back to the original complaint, and thus are barred c. Bonerb v Richard J Caron Foundation 159 f.r.d 16 (w.d.n.y. 1994) P411 COURT FINDS AMENDMENT RELATES BACK Bonerb is a rehab patient under care of the defendant. 11/29/91. While participating in a mandatory exercise program enforced by the facility, plaintiff was injured due to conditions of the basketball court neglectfully cared for by the defendant. Filed suit against the

CARLSON CIVIL PROCEDURE A-- FALL 2011 defendant on 10/1/93 (SOL two years) claiming the court was neglectfully maintained by the defendant. Upon changing counsel, Plaintiff realized there was also a claim for counseling malpractice , and sought to amend the pleading. Defendant objected, stating the new claim does not relate back to the original and is therefore barred by SOL. WDNY Affirmed: An amendment which changes the legal theory of the case is appropriate if the factual situation upon which the action depends remains the same and has been brought to the defendant s attention by the original pleading. The allegations of the original and amended pleadings all relate to and give notice to the defendant of a claim of negligent performance of professional duties. Furthermore, discovery is not over, so defendant still has time to build new defense case. V. DISCOVERY. FRCP 26 27-37 If pleading is not dismissed, case goes on to discovery. Discovery ends most suits BY summary judgment or settlement because it produces information about the merits of a suit and allows the parties to make more informed judgments on both sides of the case OR bc discovery is so expensive, parties exhaust their resources before reaching trial. a. PRE-DISCOVERY CONFERENCE UNDER 26(F) i. FRCP 26(f) requires parties to a lawsuit to confer as soon as practicable, and at least 21 days before a scheduling conference is to be held or a scheduling order is due under Rule 16(b), to discuss the case and possibilities for settlement, to arrange for required disclosures, and to develop a discovery plan incorporating these and other agreements for subsequent discovery. ii. FRCP 26(d) precludes discovery prior to such conference b. INITIAL DISCLOSURES UNDER 26(a) 1 i. Requires the parties to exchange categories of information that the disclosing party may use to support its claims or defenses. Includes the names and locations of witnesses and descriptions and locations of documents. Parties must exchange this information without it being requested ii. 26a1A: (i) the name and, if known, the address and telephone number of each individual likely to have discoverable information, that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment. (ii) all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses (iii) a computation of each category of damages claimed by the disclosing party, (iv) any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment. iii. 26a1C: A party must make the initial disclosures at or within 14 days after the parties' Rule 26(f) conference unless a different time is set by stipulation or court order, or unless a party
objects during the conference that initial disclosures are not appropriate in this action and states the objection in the proposed discovery plan.

c. DISCLOSURE OF EXPERT TESTIMONY 26(a) 2 i. A party must disclose the identity of any expert witness to be used and a list of info about the expert AT LEAST 90 DAYS before date set for trial d. PRETRIAL DISCLOSURES 26(a) 3

CARLSON CIVIL PROCEDURE A-- FALL 2011 i. Party must disclose list of witnesses and documents or exhibits it intends to produce at trial, including testimony of depositions, 30 DAYS BEFORE TRIAL. e. TYPES OF DISCOVERY i. INTERROGATORIES: FRCP 33 1. Written questions directed to a party, who must answer them in writing and under oath, or object with particularity. 33(b) 2: party must respond within 30 days of service of interrogatory 2. 33(a)1: party may only serve up to 25 written interrogatories to each party. 3. Cheap. ii. DEPOSITIONS: RULES 27-32 1. Examination of a witness under oath, held outside of court, by attorneys, pretrial. Usually held at lawyers office. Lawyer for each party is present, as are the witness and court reporter or recording device. Witness answers questions presented by attorney under oath. Attorneys can ask any question, unlike examination during trial. 2. Ability to predict case outcome after depositions taken. Often leads to settlement. 3. Deposition documents often submitted in support of MOTION FOR SUMMARY JUDGMENT. 4. RULE 30(a)2A: party may take no more than 10 depositions, unless granted leave of court to obtain more 5. RULE 30(d)1: deposition cannot take longer than 1 day of 7 hours 6. ORAL (RULE 30) OR WRITTEN (RULE 31) 7. RULE 28: DEPOSITIONS TAKEN BEFORE AN OFFICER AUTHORIZED TO ADMINISTER OATHS. 8. RULE 30: requires reasonable written notice to the deponent and all parties to the action of the time and place of the deposition and identity of the deponent. 30(a)1: depose anyone, even parties in a case. 30(a)2: you can depose a witness a second time either with other party s permission OR obtaining leave of court. 9. 30(c)2: attorney can object to a question being asked under deposition, but person being deposed still has to answer UNLESS the objection is due to PRIVILEGE, COURT ORDER LIMITING THE QUESTION, OR ATTORNEY RAISING MOTION UNDER 30(d)3. a. You cant instruct the deposed to not answer, or you may be subject to sanctions under 30(d)2 for impeding or delaying fair examination. So, object but don t instruct to not answer. 10. RULE 32 USING DEPOSITIONS IN COURT PROCEEDINGS. a. FRCP 32(a) Permits the use of deposition testimony to impeach or contradict the deponent as a witness, or as an admission of a adverse party or officer, director, managing agent or designated deponent of an adverse party. b. Deposition transcript can be read at the trial to allow the jury to hear the prior testimony, ONLY when a witness is unavailable due to: DEATH, FAILURE TO RESPOND TO SUBPOENA, OR WITNESS LIVES MORE THAN 100 MILES AWAY.

CARLSON CIVIL PROCEDURE A-- FALL 2011 iii. PRODUCTION OF DOCUMENTS, ELECTRONICALLY STORED INFO, TANGIBLE THINGS, INSPECTION/ENTRY TO LAND RULE 34 1. Authorizes the discoverer to request that a party produce and permit: (1) inspection and copying of documents, (2) copying, testing or sampling of things, or (3) entry upon land. 2. Request must designate the documents, things or land with reasonable particularity and specify the time, place and manner of production or entry. iv. PHYSICAL AND MENTAL EXAMINATION RULE 35 1. When the physical or mental condition of a party is in controversy, a court may on motion and for good cause shown order the party or person to undergo a physical or mental examination. v. REQUESTS FOR ADMISSIONS RULE 36 1. Party may request his adversary to admit the truth of any matters within the scope of discovery. An admission obtained under 36 conclusively establishes such matter and is binding at trial 2. 30(a) 3: other party has 30 days to respond. No response is considered admission. 3. 30 (a) 4: Answer must be admission, specific denial, or statement in detail as to why party cannot truthfully admit or deny. f. (UN)DISCOVERABLE INFORMATION i. A party can generally discover information that is relevant and not privileged. ii. PRIVILEGED 1. Source: Self-incrimination, doctor-patient, attorney-client, spousal. a. In order to prove that a communication is privileged, the party claiming privilege must show that such communication: 1) was made with an expectation of confidentiality, 2) is essential to a socially approved relationship or purpose, and (3) has not been waived by disclosure of the contents of the communications to persons outside the relationship. 2. Waived: if failed to assert, taking action inconsistent with privilege, telling 3rd party privileged info. iii. PROTECTIVE ORDERS 26(C) 1. A person served with a discovery request may seek a protective order against such request if it may cause annoyance, embarrassment, oppression, or undue burden or expense. Discovery may be found unduly burdensome based on the location or condition of the discoveree, and may be unduly invasive when it probes matter that, though unprivileged, is confidential. 2. STALNAKER V KMART CORP: Plaintiff wants to depose former coworkers and ask about their voluntary romantic endeavors. 26c allows a court for good cause to grant a protective order. Court has great discretion in determining where good cause exists. POINT: Even if information and relevant and not privileged, it may not be discoverable in order to protect a person from harassment, embarrassment, etc. Discovery is not unlimited. Judges have discretion in certain circumstances to limit discovery iv. 26(b)1: only discover info relevant to a claim or defense and not privileged. 1. Relevant:

CARLSON CIVIL PROCEDURE A-- FALL 2011 a. For information to be legally relevant is to either prove or disprove something that the governing substantive law says matters b. STEFFAN V CHENEY Steffan resigned from the US navy after administrative board recommended he be discharged due to his proclamation of homosexuality not because he had partaken in homosexual conduct. Filed action claiming he was constructively discharged and challenging the constitutionality of the regulations. Steffan refused to answer deposition question asking whether he had engaged in homosexual conduct during or after his tenure with the navy. Plaintiff claimed that this information was not legally relevant to the legality of his separation from the navy. District court dismissed Steffan s action for failure to comply with discovery 37(b)(2). Steffan appeals. REVERSED whether he engaged in potentially disqualifying conduct is not at issue (and not relevant) unless such conduct was the basis for his dismissal. v. 26(b)2B: limitations on electronically stored information: party for whom discovery is sought must show info is not reasonably accessible bc of undue burden or cost. vi. 26(b) 3: TRIAL PREPARATION: MATERIALS: Work product, generally defined as information prepared or obtained in anticipation of litigation or preparation for trial by or for a party or his representative, enjoys qualified immunity. 1. Thompson v Haskell: Plaintiff filed motion for protective order seeking to shield discovery from documents related to her in possession of a psychologist , retained by her prior counsel to perform a diagnostic review and personality profile. (Expert Employed Only for Trial Preparation)26b4D. The defendant could not obtain comparable information by any other means bc the info was taken while plaintiff was still in fragile mental state. MOTION DENIED 2. CHIQUITA V BOLERO REEFER: Defendant filed application to compel discovery 37-a-3-a, seeking deposition of Joseph Winer, a marine surveyor hired by Chiquita after the faulty shipment to inspect defendant s vessel. Chiquita objects: Winer is a non-testifying expert whose deposition is protected under 26b-d-D. MOTION DENIED: Defendant cannot argue exceptional circumstances under this rule because the company had means to hire their own expert to inspect the vessel after the shipping in question 3. HICKMAN V TAYLOR Leading case on trial prep materials. Info relevant, and not privileged, but not discoverable. Hickman demonstrates that the undue hardship requirement may be satisfied when important facts are exclusively in the control of the discoveree such that the party seeking discovery has no other reasonable access to the information Court says trial prep material is only discoverable if: a. Production is essential to the other party s case b. It gives clues as to the existence or location of relevant info c. It is useful for purposes of impeachment or corroboration d. The witnesses are no longer available or cannot be reached. g. DUTY TO PRESERVE EVIDENCE: SPOLIATION/sanctionable under 37

CARLSON CIVIL PROCEDURE A-- FALL 2011 i. SPOLIATION: destruction or material alteration of evidence or the failure to preserve property for another s use as evidence in pending or reasonably foreseeable litigation. ii. SILVESTRI V GENERAL MOTORS CORP Silvestri crashed landlady s car. Airbag failed to deploy causing serious injury to his face. Two accident re-constructionists concluded the airbag was defective. Vehicle was repaired before filing suit. District court concluded that the vehicle was the sole piece of evidence in the case, and as that evidence was spoiled, the appropriate sanction would be to dismiss the case. 4th cir affirmed. While dismissal is the most harsh sanction for spoliation, it is necessary if the prejudice to the defendant is extraordinary. Denying GM access to the only evidence is highly prejudicial h. ENSURING COMPLIANCE i. RULE 37: FAILURE TO MAKE DISCLOSURE OR TO COOPERATE IN DISCOVERY AND SANCTIONS 1. (a) MOTIONS FOR AN ORDER COMPELLING DISCLOSURE OR DISCOVERY a. (1) In making motion, party maintains that he attempted to resolve issue with other party before filing b. (3) Specific Motions i. A) MOTION TO COMPEL DISCOVERY: party moves to compel disclosure and can also seek appropriate sanctions if other party fails to disclose under 26(a) ii. B) MOTION TO COMPEL A DISCOVERY RESPONSE: move for an order compelling an answer, designation, production, or inspection. iii. C) MOTION RELATED TO A DEPOSITION: When taking an oral deposition, the party asking a question may complete or adjourn the examination before moving for an order. 2. (d) Sanctions a. Under FRCP 37, no party may move for an order compelling discovery or for sanctions without certifying that it has tried in good faith to resolve the discovery dispute with other parties without court action. b. FRCP 37(b) authorizes sanctions for a failure to comply with an order to compel discovery or equivalent discovery order. Rules 26(g), 37(c) and 37(d), however, permit the imposition of sanctions without an intervening discovery order in some circumstances c. The discoverer may move under FRCP 37(a) for an order compelling discovery either when the discoveree objects to discovery or responds evasively or incompletely. If the motion to compel is granted, FRCP 37(a)(4) requires the court to award the movant attorney s fees and other expenses incurred in making the motion unless it finds that opposition to the motion was substantially justified. If the motion is denied, the discoveree has a similar opportunity for reimbursement and the court may issue a protective order in his favor ii. COMBATTING DISCOVERY ABUSES 1. If you refuse to comply with justifiable discovery requests, you can be subject to sanctions under rule 26(g) and 37

CARLSON CIVIL PROCEDURE A-- FALL 2011 2. If you request information that is irrelevant or privilege, the other party who wishes not to disclose does not need judicial order. They may simply decline to answer under rule 26(b)(1), which limits the scope of discoverable material 3. Rule 26(c) allows a party to seek a protective order if discovery sought would cause annoyance, embarrassment, oppression, or undue burden or expense 4. SANCTIONS a. 26(g): every disclosure under rule 26a and every discovery request, response, or objection must be signed by at least one of the attorneys representing the party, certifying that the information is complete, correct, non-frivolous, not imposed to harass, cause unnecessary delay, or needlessly increase the cost of litigation. The other party has no duty to act if certifications are not signed. Improperly certifying this information is grounds for sanctions under 26 (g) 3 b. 37 (d) 1: Motion: ground for sanctions: Court may order sanctions when a party fails to appear for deposition after being served, party failed to respond to interrogatories or request for inspection. The one filing this motion must certify that they are acting in good faith AND that they attempted to resolve the issue with the other party before moving c. 37(d) 3: Types of sanctions actions: other party who failed to act must pay the reasonable expenses, including attorney fees, caused by the failure unless the failure was substantially justified or other circumstances make the award of expenses unjust. VI. RESOLUTIONS AFTER DISCOVERY BUT BEFORE TRIAL STARTS OR BEFORE JUDGMENT ENTERED a. SUMMARY JUDGMENT--- RULE 56 i. (a) Motion for Summary Judgment or Partial SJ: The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. ii. (b) Time to file the motion: any time until 30 days after the close of all discovery. iii. (c) (1): Supporting Factual Decision: A party asserting that a fact cannot be or is genuinely disputed must support the assertion. iv. STANDARD FOR SUMMARY JUDGMENT: whether there can be but one reasonable conclusion (Anderson v liberty lobby) Anderson: Once burden has shifted from moving party to nonmoving party, plaintiff cannot just rest on the allegations while trying to survive MSJ must support their claim 1. SJM asks a judge whether there is enough of a dispute on a material issue to even get to the jury. No weighing of evidence per se, just is there enough evidence to let a jury decide a case 2. The question is not who will win at trial, it s whether there is an issue for trial v. BURDEN OF PRODUCTION ON MOVING PARTY: A motion for summary judgment may be supported by the pleadings, discovery documents, affidavits, and any other materials that present facts that would be admissible at trial. Hearsay, speculation, conclusions of law, conclusory ultimate facts, and promises that the necessary

CARLSON CIVIL PROCEDURE A-- FALL 2011 evidence will be offered at trial therefore cannot support a motion for summary judgment, even when presented by an otherwise proper affidavit. vi. PARTIAL SUMMARY JUDGMENT: Under 56d, you can move for partial summary judgment on certain claims to narrow the case down before trial. vii. To refute the motion for SJ against you: If movant meets his burden of production that there exists no triable issue of fact, , the opposing party may not rest upon the mere allegations or denials of his pleading but must set forth specific facts showing that there is a genuine issue for trial. [FRCP 56(e)] -Alternatively, the opposing party may present an affidavit under Rule 56(f) stating why he cannot state specific facts in opposition to summary judgment at the present time, without adequate time for discovery. The reasonableness of plaintiff s request for time is a crucial factor in the exercise of the court s discretion -If the movant for summary judgment fails to meet his burden of production, the opposing party need not do anything. viii. CELOTEX CORP V CATRETT: Asbestos negligence claim. Supreme Court defines the standard for SJ: We have such a low bar set in our pleading stage that a MTD does not
fulfill the function of weeding out meritless claims anymore; rather, a rule 56 SJM has taken its place. The court essentially held that a plaintiff who bears the burden of proof at trial must also bear the burden of proof against a motion for summary judgment. Remanded: To give the plaintiff the opportunity to respond to defendant's MSJ Specifically, the CA must determine whether the letter produced by the plaintiff from her husband's employer is sufficient evidence to discharge her burden of proof in opposing the motion for SJ. Note that this piece of evidence will probably be sufficient to discharge her burden. Celotex makes granting of SJ easier.

ix. ANDERSON V LIBERTY LOBBY: P sued D for libel. D moves for SJ, as P cannot prove malice (a requirement for libel). P asserts that the article contains numerous inaccuracies and the sources relied on by D were highly questionable. TC affirmed, CA reversed. SC: Whether, in defending against a motion for SJ after the moving party has made an appropriate showing, the nonmoving party must be held to the substantive evidentiary standard of proof that would apply to the merits of the case at trial. x. BIAS V ADVANTAGE INTERNATIONAL: Bias died of cocaine overdose. Agent was supposed to secure insurance; told his parents he did when he did not. Now claims that he could not have obtained a policy for bias BC insurance companies will not grant a policy to habitual cocaine users. D brought in witnesses who testified to seeing Bias consume cocaine on specific instances. Moved for SJ, Estate did nothing to impeach these testimonies. They only introduced their own affidavits of Bias parents who said they never knew their son to take drugs and testimony from his basketball coach who said in 4 years, he never knew Bias to be a drug user. To survive SJ, plaintiff must do more than create a metaphysical doubt. They must provide evidence that supports their case and undermines the moving party s claims. The evidence that the estate produces does not refute the actual specific instances the defendant s produced via testimony. xi. JONES V CLINTON: After discovery, Clinton motions for Summary Judgment on grounds that she cannot show evidence for workplace harassment/hostile work environment, and then all other claims fall apart. PLAINTIFF S SUBJECTIVE BELIEF THAT DEFENDANT HAD THREATENED JOB RETALIATION DID NOT STATE A CLAIM OF SEXUAL HARASSMENT. PERCEPTIONS ARE MERELY CONCLUSORY IN NATURE AND DO NOT CONSTITUTE THE TANGIBLE JOB DETRIMENT THAT CONSTITUTES A MATERIAL EMPLOYMENT DISADVANTAGE. Summary judgment

CARLSON CIVIL PROCEDURE A-- FALL 2011 for Clinton and Ferguson Affirmed: the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party and the Court therefore finds that there are no genuine issues for trial in this case. b. DISMISSAL i. RULE 41 1. VOLUNTARY DISMISSAL: FRCP 41(a)(1) provides that the plaintiff may dismiss once without leave of court by filing notice of dismissal before an answer or motion for summary judgment is served upon the plaintiff. -lawsuit is terminated by voluntary request of the plaintiff. A voluntary dismissal is with prejudice (meaning the plaintiff is permanently barred from further litigating the same subject matter) -If the defendant has taken such action, dismissal is only proper under two circumstances: a. the defendant signs an agreement with the plaintiff to dismiss the case b. the judge overseeing the case rules for the case to be dismissed -Once the case has been voluntarily dismissed, if it is brought to court again a dismissal in this second case will mean the case can never again be brought back to court. -COURT-ORDERDED DISMISSAL: 41(a)2: an action may be dismissed at the plaintiff's request only by court order, on terms that the court considers proper. If a 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. Unless the order states otherwise, a dismissal under this paragraph (2) is without prejudice 2. INVOLUNTARY DISMISSAL: 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. Unless the dismissal order states otherwise, a dismissal under this subdivision (b) and any dismissal not under this rule except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19 operates as an adjudication on the merits. c. SETTLEMENT: Bargaining in the shadow of the law: knowing that the law is not in your favor, you bargain in hopes of avoiding trial and settling i. Contract between the plaintiff(s) and defendant(s) identified in the lawsuit to end the dispute without a trial. The contract is based upon the bargain that a party foregoes its ability to sue (if it has not sued already), or to continue with the claim (if the plaintiff has sued), in return for the certainty written into the settlement. The courts will enforce the settlement: if it is breached, the party in default could be sued for breach of that contract. ii. Once settlement is reached, it is submitted to the court with jurisdiction over the would-be case. iii. Allows for a confidentiality agreement. iv. Cheaper than trial. d. ARBITRATION i. A neutral third-party proactively considers the case and designates a winner. Whether parties are required to submit to arbitration and, if so, whether the

ii.

iii. iv. v.

CARLSON CIVIL PROCEDURE A-- FALL 2011 arbitrator s decision is binding, depends on the nature of the agreement or prior consent of the parties. Parties have control over 1. The neutral arbitrator 2. The discovery rules Arbitration is often quicker and cheaper than trial. Final: you cannot appeal an arbitration decision. ENFORCEMENT 1. Courts generally enforce an arbitration decision if it seems fair. 2. FEDERAL ARBITRATION ACT 9 USC 2 a. Substantive Law: Broadly declares arbitration agreements valid under federal law. Binding on both federal and state courts b. a written provision in any contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contact shall be valid, irrevocable, and enforceable 3. UNCONSCIONABLE a. In order to render a contract unenforceable under this doctrine, there must be both procedural and substantive elements of unconscionability i. PROCEDURAL: Concerns that matter in which the contract was negotiated 1. OPPRESSION: if bargaining power was disproportionate: one party created the terms while the other party had no real negotiation power and thus no meaningful choice 2. SURPRISE: supposedly agreed upon term was actually hidden within the text of the contract, thus becoming a surprise and a disputed term ii. SUBSTANTIVE: Focuses on the terms of the agreement and whether the terms are so one-sided that they shock the conscience. b. FERGUSON V COUNTRYWIDE: When Ferguson was hired by defendant, she was required to sign conditions of employment, including an unfair requirement for arbitration that was one-sided. Ferguson filed a complaint against Countrywide, and her supervisor, alleging Sexual harassment, retaliation, and hostile work environment. D filed petition to order arbitration. District court ruled that the arbitration agreement is unenforceable based on the doctrine of unconscionability. Affirmed: agreement was one-sided, and had unfair costs for the P.

e. MEDIATION: A neutral third person (the mediator) assists the parties to arrive at a mutually satisfying, self-determined solution. i. Mediator does not rule on the rights and wrongs, but seek to help the parties come to an agreement without adjudication. ii. Mandatory Mediation: some states require cases to be submitted to mediation before they will set a trial date iii. Muscle Mediation: settlement arrived at under heavy pressure bc mediator threatens to report to the judge that the parties have behaved unreasonably

CARLSON CIVIL PROCEDURE A-- FALL 2011 iv. If mediation fails, and parties go to trial, they cannot bring up statement of facts made during mediation process, as that is protected under evidentiary privilege f. SUMMARY JURY TRIAL: : Lawyers present a brief rundown of their case and evidence they would introduce at trial to a mock jury. Mock jury then returns its nonbinding verdict. This method is used to show parties what the likely result of their case will be. If they find that it is not what they expected, they can return to settlement negotiations. g. JUDGMENT AS A MATTER OF LAW: RULE 50 POSSIBLE RESPONSES TO THIS MOTION: Let jury verdict stand, grant JMOL, Grant new trial, grant both JMOL and New Trial. Upon the close of a party s case, if the opposing party believes that such other party did not prove his case, he may move for a judgment as a matter of law. Traditionally, when a motion was made at the end of the plaintiff s case, or after both sides had rested but before the jury retired to deliberate, the motion was one for directed verdict. When made following the jury s verdict, the motion was for judgment notwithstanding the verdict (JNOV). States retain this distinction i. TIMING OF MOTION: All Evidence Submitted Motion for JMOL (usually denied at this stage) Jury hands down verdict Renew Motion for JMOL ii. 50(a)(1): If a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue, the court may: (A) resolve the issue against the party and (B) grant a motion for judgment as a matter of law against the party on a claim or defense. iii. Motion Usually Denied at this stage: but party must make the motion now in order to renew it after jury verdict or motion for new trial. 1. 50(b): No later than 28 days after the entry of judgment or if the motion addresses a jury issue not decided by a verdict, no later than 28 days after the jury was discharged the movant may file a renewed motion for judgment as a matter of law and may include an alternative or joint request for a new trial under Rule 59. Judge Can: a. Allow judgment of the verdict b. Order a new trial OR c. Direct the entry of judgment as a matter of law 2. Similar to SJ, Rule 50 is largely concerned with the inferences that we allow a jury to make. Worries that based on the evidence, jury can make the wrong inferences iv. PENN RAILROAD V CHAMBERLAIN: Deceased employee fell off of train after another negligently crashed into his, throwing him off. Chamberlain only had one witness who wasn t even in a position to observe the crash, which Penn Railroad had multiple witnesses who were in the yard and testified as there was no crash. A verdict in chamberlain s favor would have rested upon mere speculation and conjecture. This is inadmissible and JMOL granted for Penn Railroad, as chamberlain did not meet burden of proof. v. PRICE V CITY OF TERRELL: Judgment as a matter of law is warranted if, after viewing the record in the light most favorable to the non-moving party, there is no 'legally sufficient evidentiary basis' for a reasonable jury to have found for the prevailing party

CARLSON CIVIL PROCEDURE A-- FALL 2011 h. MOTION FOR NEW TRIAL: RULE 59 may be ordered by motion or by judge discretion. Judges allowed to weigh evidence under this rule, unlike rule 50. i. No specific grounds for new trial under 59: Common law reasons: 1. Errors in the jury s evaluation of the evidence; and a. FLAWED VERDICT: Judge may conclude that the verdict result of trial is unjustifiable 2. Errors in the trial process, including errors in the law applied a. FLAWED PROCEDURE: Judge concludes that the process leading up to the verdict was flawed. i. Impermissible argument made by lawyer ii. Judge erred in admitting a piece of evidence iii. Judge gave erroneous instructions iv. Juror misbehaved during trial ii. ERRORS BY JURY: Jury verdicts may support an order for a new trial if the trial judge concludes that the verdict is excessive, inadequate, or otherwise against the weight of the evidence. Standard: a. Is verdict against the clear great weight of the evidence? b. Is it based upon false evidence? c. Will the verdict result in miscarriage of justice? 2. ERROR IN DAMAGES AWARDED: Judge thinks verdict is reasonable, but damages award in unjust. When a motion for a new trial is granted made on an assertion that the verdict is excessive or inadequate, the trial court may conditionally grant the motion by requesting the opposing party to accept remittitur, and in some states, additur a. Remittitur: instead of ordering a new trial, judge can simply reduce the damages found to be unreasonably high IF plaintiff agrees. Plaintiff waives right to appeal by agreeing to remittur. b. Additur: instead of ordering a new trial, Judge can simply increase damages found to be unreasonably low IF defendant agrees. Not applicable in federal courts due to 7th amendment rights, reason being that in Remittur, jury decision is simply modified, while in additur, jury never reached that decision to begin with iii. LIND V SCHENLEY INDUSTRIES: Plaintiff was a sales manager for defendant liquor company. Defendant promised Plaintiff an increase in pay and a share of commission in an oral promise. Secretary heard the promise being made. Defendant claims the promises were never made. Plaintiff brings suit for breach of contract. Jury said K exists and entered a damage award for Plaintiff. Defendant moved for JNOV and in the alternative, new trial. Trial judge granted judgment not withstanding verdict and new trial. 3rd cir reinstated verdict for plaintiff: 1) verdict was not contrary to law. JURY BELIEVED THE TESTIMONY AND RULED BASED ON THAT. COURT SUBSTITUTED ITS JUDGMENT FOR THAT OF THE JURY ON THIS ISSUE, AND THEREBY ABUSED ITS LEGAL DISCRETION iv. LIBERATORE V CVS: Plaintiff argued that after he made the whistle-blowing threat, Merlo and Roberts were motivated in their decision to terminate him. CVS denies that the threat was even made, and the decision to terminate plaintiff was solely due to his knowingly operating without a license. -District court granted summary judgment for defendant. On appeal, reversed and jury found for Plaintiff: $1.1 MIL for emotional distress damages and $212,000 for

CARLSON CIVIL PROCEDURE A-- FALL 2011 lost earnings. CVS then moved for Judgment as Matter of Law or New trial, and alternatively, remittur. - JMOL and motion for new trial denied: Jury verdict must remain the same unless evidence and reasonable inferences were so one-sided that reasonable people could not disagree. -- Defendant s motion for remittitur granted: either accept reduced award of $200,000 or elect to have a new trial on issue of emotional distress damages VII. JURIES a. REID V SAN PEDRO: Plaintiff cattle entered onto defendant railroad tracks either through fence they left open or via a negligently maintained fence. Offered no proof at trial as to how cattle got onto railroad tracks. Jury verdict for plaintiff. Defendant Appeals. Reversed: verdict entered not supported by evidence. Trial court should have directed verdict in favor of defendant. Where the undisputed evidence of the plaintiff, from which the existence of an essential fact is sought to be inferred, points with equal force to two things, one of which renders the defendant liable and the other not, the plaintiff must fail. b. RIGHT TO A JURY TRIAL RULE 38: in order to get a jury, 1) claim must be entitled to one and 2) one of the parties must request it i. 7th Amendment of US Constitution: In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law. Right to Jury Clause. ii. HISTORICAL TEST 1. Courts apply a historical test to determine whether the case is entitled to jury. Courts seek to provide jury trial to claims that would have been entitled as such in 1791 2. YES: LEGAL CLAIMS: Legal meaning the claim was one recognized by the courts of law. Entitled to Jury Trial 3. NO: EQUITABLE CLAIMS: Claims that would have been heard by a chancellor, not a jury, and thus 7th amendment does not apply 4. To determine whether the action would have been legal or equitable in 1791, one must first look at the type of action and whether such an action was considered "legal" or "equitable" in 1791. Next, the relief being sought must be examined. Monetary damages alone were purely a legal remedy, and thus entitled to a jury. Non-monetary remedies such as injunctions, rescission, and specific performance were all equitable remedies, and thus up to the judge's discretion, not a jury iii. APPLYING HISTORICAL TEST TO NEW CLAIMS 1. Difficult to determine if claims are entitled to jury trial if the claim did not even exist in 1791 2. Courts will try to find an analogous claim to determine entitlement to jury. 3. CHAUFFEURS, TEAMSTERS, AND HELPERS, LOCAL NO. 391 V TERRY: Union and collective bargaining did not exist in 1791 to determine whether this is a legal or equitable issue, they relate the claim to an analogous claim. First, compare the statutory action to 18th century actions brought in the courts of England prior to the merger of courts of law and equity The issues here are both equitable and legal. Unresolved as to whether case is entitled to jury. Second, examine the remedy sought and determine whether it is legal

CARLSON CIVIL PROCEDURE A-- FALL 2011 or equitable. Bc they are only seeking monetary damages, not equitable. Affirmed: Seventh Amendment entitles this claim to a jury trial bc it is legal in cause of action and damages sought iv. APPLYING 7TH AMENDMENT TO NEW PROCEDURES 1. Before the courts of law and equity merged, if plaintiff has two causes of action, one in each court, they had to file 2 separate suits. Trial courts had considerable discretion in granting relief for these 2 cases. After FRCP and courts merged, the constitutional right to jury trial prevailed in these scenarios, and judges had less discretion 2. AMOCO OIL CO V TORCOMIAN: The parties disagreed about whether Plaintiff s representative had ever promised the Defendants they would be accepted as franchisees and whether they met the qualifications for franchisees. Plaintiff originally sought extensive relief amounting to an ejection and permanent injunction restraining the Defendants from use or entry upon the Plaintiff s gas station. Defendants filed a compulsory counterclaim against Plaintiff, seeking damages as well as an injunction, forcing Plaintiff to comply with the alleged franchise agreement ** Mix of legal and equitable claims does not prevent a jury trial. Jury should be able to decide the overlapping issues. Jury makes their decisions first, and then judge rules on strictly equitable issues 3. c. SELECTING/CHALLENGING JURORS i. 28 USC 1861 1. All litigants in federal courts that are entitled to a jury will have one selected from a fair cross section of the community. 2. All citizens shall have the opportunity to be considered for service on grand and petit juries in the district courts of the United States, and 3. Shall have an obligation to serve as jurors when summoned for that purpose ii. 28 USC 1862: No citizen shall be excluded from service as a grand or petit juror in the district courts of the United States or in the Court of International Trade on account of race, color, religion, sex, national origin, or economic status iii. JURY SELECTION: Pool Summons Voir Dire Jury 1. POOL a. Summon jurors from voter registration, social security, telephone books, driver s license lists, college registration, welfare recipients, etc. b. 28 USC 1863: Each district court of the US must have an appropriate plan for random jury selection, including a plan for selecting potential jurors, a master jury wheel, etc. c. 28 USC 1864: Master jury wheel combined at beginning of year and all people on list and sent a juror questionnaire. 2. SUMMONS AND VOIR DIRE GOVERNED BY 28 USC 1866 a. 28 USC 1866: Selecting and Summoning Juries. i. (c) how jurors may be excused, INCLUDES PEREMPTORY CHALLENGES b. FOR CAUSE: Challenging juror with reason, ie potential bias, or lies. c. THOMPSON V ALTHEIMER & GRAY: When asked during voir dire whether there was anything that would prejudice her decision, Leiter stated that as a business owner she would tend to favor the defendant

CARLSON CIVIL PROCEDURE A-- FALL 2011 and that her experiences with employees suing simply because they failed to get a promotion or raise might "cloud" her judgment. However, the juror stated that she would do her best to be fair. Having exhausted three preemptory challenges, Thompson's attorney had requested the court to strike Leiter for cause. The court refused and Leiter was able to remain on the jury. REVERSED AND NEW TRIAL ORDERED: When as in this case the record contains no assurances that the belief is shakable, that the prospective juror can exercise a judgment unclouded by that belief, the verdict cannot stand. Judge should have pushed further to inquire as to whether juror would actually not be biased. He erred in not excusing her. Not a harmless error. d. PEREMPTIVE CHALLENGES i. Peremptory challenge usually refers to a right in jury selection for the defense and prosecution to reject a certain number of potential jurors who appear to have an unfavorable bias without having to give any reason ii. Usually limited to 3 in Federal Courts. iii. EDMONSON V. LEESVILLE CONCRETE: Black construction worker who was injured in a job-site accident at a federal enclave sued concrete company for negligence. During voir dire, defendant used two of its three peremptory challenges to remove black persons from the prospective jury. Plaintiff requested that defendant be required to articulate a race-neutral explanation for striking the jurors. Denied. Judgment on jury verdict which found plaintiff 80% contributorily negligent, and plaintiff appealed. The Court of Appeals for the Fifth Circuit reversed and remanded. On rehearing en banc, the Court of Appeals, affirmed. Plaintiff sought certiorari. The Supreme Court, Justice Kennedy held that: (1) private litigant in a civil case may not use peremptory challenges to exclude jurors on account of their race, since race-based exclusion violates equal protection rights of the challenged jurors; (2) exercise of peremptory challenges by defendant in the district court was pursuant to a course of state action; and (3) case would be remanded for determination of whether plaintiff established a prima facie case of racial discrimination, such that defendant would be required to offer race-neutral explanations for its peremptory challenges. Edmonson challenge in civil cases. Batson challenge in crim. e. JURY INSTRUCTIONS RULE 51 i. Judge teaches substantive law to the jury via instructions. First, he explains that substantive law that applies to the case. Then, he explains in a sequential way the decisions the jury must reach. ii. Parties to the suit request certain instructions that the judge can either permit or deny. If they do not object to an instruction they disagree with, the party cannot complain after that the judge wrongly instructed the jury iii. Rule 51 (a): parties make instruction requests before or at the close of the evidence. Can make requests after the close of evidence either with court permission, or if instruction could not possibly have been requested before. iv. Rule 51 (b): (2) parties may object while instructions are being read. VIII. JUDGES a. CONTROL OVER JURIES

i. ii. iii. iv.

CARLSON CIVIL PROCEDURE A-- FALL 2011 Summary Judgment JMOL New Trial Jury Instructions

b. APPOINTMENT i. Federal Judges nominated by the President, and then confirmed by US senate. ii. Appointed after extensive background checks and character fitness tests. c. CHALLENGING JUDGES i. Federal system only allows challenges with cause ii. Federal Recusal statute lists two reasons: 28 U.S.C. 144 and 455 iii. 28 U.S.C. 144 Bias or prejudice of judge 1. Party can file an affidavit with the court stating facts and reasons for their belief that the judge is biased at least 10 days before hearing to have another judge assigned to the case. Each party is limited to one request for another judge. iv. 28 U.S.C. 455 Disqualification of justice, judge, or magistrate judge 1. a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned 2. b) he should also disqualify himself if he has persona bias or prejudice, Where in private practice he served as lawyer in the matter in controversy, if he, his spouse, or child has financial interest in the subject matter, or if he, his spouse, or anyone he has a third relationship with is a party, lawyer, or otherwise involved. 3. IN RE BOSTON S CHILDREN FIRST: Plaintiffs complained to local newspaper that judge failed to rule on their motion, and related it to a previous case she decided. Judge then makes a comment in response to that comment to the newspaper. Plaintiffs moved that the judge should recuse herself under 28 USC S455 bc her impartiality might be reasonably questioned. To determine whether disqualification is appropriate: 1) Charge has to be supported by a factual basis. 2) would a reasonable member of the public find this to be a bias on the judge s part. Court says: Judge should have recused herself bc a reasonable person could have interpreted her comments as not being impartial to either side. This case sets out the standard for when a judge should recuse himself under 455a IX. APPEALS a. WHO can appeal i. LOSING PARTY ADVERSITY 1. If party brought multiple claims in one suit, and won on some claims but lost on the others, they can appeal on the claims they lost and do not have to appeal the judgments in their favor 2. Requirement of Adverse Judgment: a judgment granting relief different from what one requested. The appealed claim must have a damage relief different from the claim that was granted. ii. WHO RAISED THE ISSUE BELOW: OF WAIVERS AND SANDBAGS

CARLSON CIVIL PROCEDURE A-- FALL 2011 1. WAIVER OF CONTENTION: Attorney must object to an issue at trial in order to appeal it. If the party does not present at trial the contentions to which it wants rulings, it waives the contention 2. Rule 46: the party need only state the action it wants or objects to, along with the grounds for the requests or objections iii. A party that did not settle, and a party that lost b. WHAT can be appealed i. Final Judgment Rule: Under 28 USC 1291, one can only appeal from a final decision 1. decision that ends litigation on the merits and leaves nothing for the court to do but execute the judgment 2. Review is limited to issues in the court record: you cannot make a complaint on appeal if you did not raise the issue at trial, or object to an issue at trial. 3. GENERAL RULE: partial decisions are not appealable. Some Exceptions under 54(b): allows for an appeal from a portion of a case when a final judgment has been entered on a claim, but not all of the claims, in cases where there are multiple claims or multiple parties involved. c. WHEN to appeal i. Within 30 days of judgment ii. Only after receiving final judgment d. STANDARD FOR GRANTING APPEAL i. If JURY decision, appellate review is a reasonable standard: Would a reasonable jury find the same result ii. IF JUDGE: clearly erroneous standard. iii. Even if an error was made, a decision is not reversible unless it was a harmful error. e. Standards of Review: i. deferential review applies to issues of facts 1. abuse of discretion 2. plain error used for bench trials; like reasonable judge standard 3. When arguing for deferential rvw, always make argument based on comparative advantage of trial judge 4. Rationale: when evidence on both sides, defer to judge who saw witnesses and better understood evidence; when evidence on both sides, first trier of fact might as well be right ii. non-deferential or de novo rvw puts no weight on what trial ct did; used for matters of law b/c gets no special advantage from being at trial 1. Motions for summary judgment, where trial judge has not seen any witnesses yet, only transcripts of depositions; if granted summary judgment, then appeals ct would rvw de novo b/c can also read transcripts well 2. In theory, all motions for failure to grant j.n.o.v. are reviewed de novo Legal Questions= DE NOVO REVIEW (NO DEFERENCE) Factual Questions = CLEAR ERROR (SOME DEFERENCE) Discretionary Orders= ABUSE OF DISCRETION (ABSOLUTE DEFERENCE) Jury Factual Findings= REASONABLE JURY

CARLSON CIVIL PROCEDURE A-- FALL 2011

X.

Joinder

FOR A PARTY TO ADD NEW CLAIMS OR PARTIES, THERE HAS TO BE AT LEAST ONE CLAIM IN THE LAWSUIT ALREADY THAT A FEDERAL COURT HAS PERSONAL JURISDICTION, SUBJECT MATTER JURISDICTION, AND VENUE. THIS IS CALLED AN ANCHORING CLAIM BC IT ANCHORS THE CASE IN FEDERAL COURT, AND ALLOWS CLAIMS TO SURVIVE 12B MOTION TO determine joinder: we only need to ask whether there is authority under FRCP 4 things to remember about joinder rules: Reflect philosophy behind FRCP don t get caught up in technicalities of pleadings; cf. Rule 1 (rules construed to permit speedy, efficient and just resolution of disputes) Just like in discovery, summary judgment, etc FRCP makes it easy to bring many claims, to intervene in claims, for s to bring counterclaims and for many parties to bring one claim Much discretion given to trial judges on whether and how much to consolidate cases; will only be reviewed for abuse of discretion Rule 42 grants authority to trial judge to hold separate or joint trials when it makes sense to do so Have to consider joinder rules in conjunction w/ preclusion rules and rules of federal jurisdiction A. Joinder of Claims 1) Joinder of Claims by FRCP 18: Joinder of claims: Any pty may join any and all claim, counterclaims, crossclaims, or 3rd pty claims he has against another pty (related or not). However, this is limited by subject matter jurisdiction, especially the doctrine of supplemental jurisdiction. Remember, even though Rule 18 allows joinder it may not be constitutional to hear an additional claim! 2) Claims by : Counterclaims a. FRCP 13 Counterclaims: permits compulsory and permissive counterclaims and crossclaims. Compulsory counterclaims arise out of the same transaction. This is somewhat redundant because claim preclusion has been expanded. Permissive counterclaims are against the same party but unrelated to the cause of action. (need indpndt basis for jurisdiction, i.e. 1367) Rule 13(g) requires that cross-claim against coparty be part of same transaction or occurrence; must read Rule 18(a) in conjunction w/ 13(g) Plant v. Blazer Financial Services (5th Cir. 1979) Facts- T (NY) brings suit against (NY) in federal court on a federal truth-in-lending claim. The brings a contract (i.e., state) counterclaim against the . challenges subject matter jurisdiction. If a counterclaim has an obvious interrelationship of the claims of the T, coupled Rulew/common facts, then the counterclaim is compulsory, even if one is a federal claim and one is a state claim. Today, 1367 solves this question. TestAny affirmative answer suffices: Are the issues of fact and law raised by the claim and counterclaim largely the same? Would claim preclusion bar a subsequent suit?

CARLSON CIVIL PROCEDURE A-- FALL 2011 Will substantially the same evidence support or refute s claim and s counterclaim? Is there any logical relation between the claim and counterclaim? - Other ct disallows, citing policy concerns for chilling effect. could argue only way will hear is as counterclaim b/c too small. - Argue either way about relatedness. can argue fed cts will have to hear too many issues of state law. Compulsory counterclaim- just label for conclusion that counterclaim so related to claim that it ought to be heard in same hearing so there is supplemental jurisdiction Permissive counterclaims- do not arise out of same transaction; no supplemental jurisdiction; basically same test as for supplemental jurisdiction in general; treat case and controversy language as same as test here for aggregate of operative facts Note: 1367 trumps FRCP 13 when there is a conflict B. Joinder of Parties 1) By s: Mosley v. GM Corp. (8th Cir., 1974) Facts- 10 workers sue GM for race and sex discrimination. District court separated claims because they were too unrelated. Interpret Rule 20 broadly: Permissive joinder is allowed when each party s claim Rulearises out of same transaction or series of transactions and a common set of facts or law will arise. Finding- s asserted a right to relief arising out of the same transactions or occurrences. Some questions of law and fact are common. Rationale- Also, consolidate proceeding to eliminate perverse incentives created by consecutive litigation; same rationale as for issue preclusion FRCP 20: Permissive Joinder Of Parties- s may join together subject to ruling above; ct may order sep trials to prevent cost, delay, embarrassment or injustice. FRCP 19: Parties needed for Just Adjudication- if needed for complete relief, person claims interest in subject such that absence extant parties risk having multiplied obligations. Ct by order will join them; if refuse or involuntary . 2) By s: Third Party Claims a. Price v. CTB, Inc. (District ct. Ala., 2001, P 748) Facts- Farmer price sues builder of chicken house Latco, who in turn sues ITW, the nail manufacturer Ct says under Rule 14(a) third party claim must not only arise out of same facts, Rulebut must also be derivative of original claim. Finding- Deny motion not to allow joinder. ITW would carry derivative liability on warranty claim if Latco found liable b. FRCP 14: may join other s (i.e., for purposes of indemnification) may also join other 's through the use of counterclaims as long as the counterclaims arise out of the same transaction as that underlying the original suit. (as a matter of fairness to original plaintiffs) 3) 1367 and More Complex Litigation a. Kroger v. Omaha Public Power District (8th Cir., 1975) Owen Equipment & Erection Co. v. Kroger (still pre-1367) Facts- IAT v IL for state claims, NE makes FRCP 14 3rd party claim against IA (fine). But then IAT files a cross party claim on IA Finding- A cannot destroy complete diversity by suing a 3rd party . Bases on 1332. This would allow end-run around diversity req t. Codified in 1367. chose to bring state claim in fed ct; defending pty haled into ct. Bad faith of also likely motivating ct.

CARLSON CIVIL PROCEDURE A-- FALL 2011 b. 1367: supplemental fed jurisdiction: distinguish b/t fed question and diversity claims; Congress more generous toward supplemental jurisdiction in fed question claims than diversity claims Para (a)- If have jurisdiction over one claim, then have suppl jurisdiction over related claims Para (b)- creates exception for diversity cases b/c want to keep complete diversity rule intact; but allows third party claims; cannot sue anyone she could not have sued originally, but s can sue whomever they like regardless of citizenship, will still have suppl jurisdiction Para (c)- may decline to hear state claim after fed claim dismissed ** Court may consider defenses when det if there is suppl jurisdiction over a counter-claim Worried about strategic behavior by s; A cannot sue C but C can sue A about same transaction; b/c that is a claim by a not an ; 1367 would not even allow A to counter-claim against C on same set of facts; rationale is that do not have to worry about strategic behavior; s do not want to be there Tension here is b/t efficiency and federalism.