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									                              CIVIL PROCEDURE II OUTLINE

Chapter 6

Fighting Personal Jurisdiction

   -   Two approaches

            o Direct attack
                  Go to trial and object to personal jurisdiction
                          Can only appeal after final judgment
                          Some courts allow for appeal before trial before the merits
                            (extraordinary writ)
                  Lawyer must be licensed in F1
                  More expensive
                  Allows appellate review
                  Can litigate on its merits
                  Good case on the merits  Direct attack
                  Disadvantages
                          Cannot directly appeal issue of personal jurisdiction if it is found
                             Most states: not a final judgment
                                o Unless through extraordinary writ
                          Must stick around and litigate the case

            o Collateral attack
                  Defendant ignores service
                  Default judgment
                  When plaintiff brings to collect
                  Make attack on personal jurisdiction
                          Judgment only valid if original court had personal jurisdiction
                  Plaintiff can enforce anywhere defendant has property
                  Advantages:
                          Do not have to travel
                          Do not have to retain lawyer in F1 state
                  Disadvantages
                          Only get to litigate issue of personal jurisdiction in F2 state
                          Do not get to litigate merits

   -   Baldwin v. Iowa State Travelling Men’s Assn
       o Made a direct attack, court found jurisdiction. Failed to continue in the F1 state
         proceedings and got a default judgment against. F2 state held that the issue of
         personal jurisdiction had been litigated and therefore barred from re-litigation.
         (Issue Preclusion). Could have appealed the decision in the F1 forum however.

-   Special appearance
       o Does not exist in notice pleading states
       o Does not matter in Fed court or OK  These are notice pleading
       o Challenge anything else, waive objection to personal jurisdiction
                So engaged with court proceedings, consented to court’s power
       o If you motion to remove the case it does not constitute a waiver (does not convert
           to general appearance) SUPREME COURT CASE
       o Some states also allow for contesting subject matter jurisdiction

-   FRCP 12
      o “No defense is waived by being joined with one or more other defenses or
         objections in a responsive pleading or motion”
      o Respond with
             Answer (responsive pleading)
             Motion
                      Can include 7 12(b) defenses in addition to
                      12(e) – Motion for more definite statement
                      12(f) – Motion to strike
      o 12(b) defenses – By motion or in answer
             Lack of subject matter jurisdiction
             Lack of personal jurisdiction
             Improper venue
             Insufficient process
             Insufficient service of process
             Failure to state a claim on which relief can be granted
             Failure to join an absentee under Rule 19
      o Waiver issues
             12(g)
                      If some Rule 12 defense is available and omitted from the first
                         motion, it cannot be included in the second motion, unless
             12(h)
                      Selection of forum defenses
                             o Lack of personal jurisdiction
                             o Improper venue
                             o Insufficient process
                                   o Insufficient service of process
                                   o WAIVED IF
                                            Omitted from either a motion or a responsive
                                              pleading (or a pleading amended as a matter of
                            Other forum selection issue
                                   o Subject matter jurisdiction – Can be brought at any time
                            Left out Rule 12 defenses
                                   o Motion to dismiss for failure to state a claim
                                   o Dismiss for failure to join an absentee under Rule 19
                    IMPACT
                            Defenses in Rule 12(b)(2)-(5) must be included in the first
                               defensive response under Rule 12, or they are waived.
                            All threshold issues
                            Failure to state a claim and failure to join an absentee under Rule
                                   o Only waived if they are not raised before judgment is
                                       entered in the trial court
                            Subject Matter Jurisdiction
                                   o Cannot be waived, governmental issue  No matter what
            o   For notice pleading states
            o   Abolishes distinction between general and special appearances
            o   Allows raising of multiple defenses in addition to personal jurisdiction
            o   No defense is waived by joining with other defenses


In general:
    - Verified pleadings – Pleadings signed under oath
          o Not required, unless by statute – Rule 11 (a)
    - Process
          o Complaint
          o Notice through service
          o Answers
          o Some jurisdictions - Reply
    - Pleadings are gatekeepers of lawsuits (Types in Rule 7)
    - First opportunity to learn about plaintiff’s claim
    - Document setting forth factual and legal contentions of the parties as set forth in FRCP 8
       and FRCP 9
    - Rule 8:
        o Applies to ANY claim
        o Requires:
                Statement of the grounds for subject matter jurisdiction
                Statement of the claim
                Demand for the relief sought
                IF MISSING:
                        Dismissed, usually without prejudice or with leave to ammend
-   FRCP 7(a) – Pleadings that are allowed
        o Complaint, answer, cross-claim, counter-claim, answer to counter-claim, answer
           to cross-claim, third party complaint… etc.
-   If you make by motion (you should, answered more quickly)
        o (2)-(5) Must be included in first filing (even by answer) or they are waived
                Must be made before responsive pleading is allowed
                OK – After you file, 5 days to amend motion (OR YOU ARE FUCKED)
        o (1) is subject matter
                Never waivable
        o (6) is failure to state a claim
                IN OK 12(b)(6) is waivable; NOT in federal court
                        12(b)(6) – Tests legal sufficiency and factual sufficiency
                                o Looks at face of complaint
                                o Not at evidence
                                o Assumes allegations as true
                                o After pleadings?
                                         12(c) – Judgment on the pleadings – Same thing,
                                          different name
                        Substantive challenge
                        Motion for Summary Judgment
                                o If court looks at evidence for a 12(b)(6) motion, it converts
                                    to summary judgment
        o (7) failure to join a party
-   Extending time does not waive any defenses (careful in Code Pleading)
-   Four functions (supplemented by things other than pleadings)
        o Putting parties on notice of claims/defenses  Gave “Notice” name
                Rule 8 and Rule 9
        o Sets out each parties view of the facts
                Rule 26(A) – Initial disclosure
                26-37 – Discovery (bears burden of factual development)
                FRCP 36 = 12 OS 3236
        o Narrow the issues
                FRCP 26-37
       o Resolution of meritless claims and defenses
                FRCP 8, 9, 11, 56
-   S.C. Decision – Plead enough facts to be “plausible”
       o Plausible
                Dioguardi/Gibbs– Can only be dismissed for failure to state a claim if
                  plaintiff can prove no facts to support his claim
                If pleading gives notice of claim/basis it is sufficient
       o “Short and plain statement of the claim showing entitlement to relief”
       o Leatherman – Heightened pleading not allowed to be required absent statute or
                9(b) only requires specificity in fraud/mistake claims
       o Can lose a case at this stage
       o Specificity issues
                Twombly and Iqbal
                       Conclusions are not factual allegations
                       Careful of pleading yourself out of court
                       Two principles
                              o No legal conclusions
                              o Has to be plausible, not merely plausible
                       Judge decides using judicial experience and common sense
                       Problems
                              o Who has the information?
                              o Simple negligent cases easy to get facts
                              o Others, not so much
                              o Seems to bring back problems of conclusions v. facts
                       Common counts
                              o One sentence statements of claims accepted in virtually
                                  every court
                                      Quantum meruit
                                      Quantum valebant
                                      Indebitatus assumpsit
                       FRCP 9 – Heightened pleading requirements
                              o 9(b) and 28 USC 1778
                              o Examples
                                      Fraud/Mistake
                                      Condition precedent
                                      Official document or act
                                      Special damages
                                              Attorney’s fees
                                                  Damages that do not flow naturally from the
                                  o Allows conditions of a person’s mind to be plead generally
                                  o Condition precedent is interesting  party denying must do
                                    so with particularity
   -   OK  Petition
   -   Fed  Complaint

Every state allows challenges to jurisdiction, service, venue
Code states
   - Facts
           o Too specific – pleading evidence
           o Too general – pleading conclusions of law
           o Requires concise detailed statement of facts
           o Motion for more definite statement – expansion of plaintiff’s pleading
           o Motion to strike – remove redundant material
   - California/New York
   - Allow for special appearance
   - Can waive personal jurisdiction

Fed states (Notice pleading)
   - Federal and most states
   - Much less detail required than code pleading
   - No special appearance
   - Results in more expensive discovery
   - Limited appearance
            o Only appear to challenge jurisdiction, if liable, only to extent of property involve
            o Form
                    FRCP 10
                    12 OS 2010
                           Caption
                           Name of court
                           Title of case
                           Identity of document
                           File/docket number
                           CV-year filed-case number-initials of judge
            o Body
                    Claims/defenses
         In numbered paragraphs
         Separate counts for different related claims (optional)
         Separate counts if claims founded on different transactions
o   Separately number paragraphs
o   In contract, can attach contract to become part of your pleading
o   Can also attach other written docs
o   Fed
         First allege subject matter jurisdiction
         Diversity – allege amount in controversy
o   Oklahoma – Do not plead jurisdiction or venue, but you can
o   Then plead basis (Rule 8) – “Short plain statement of the claim showing the
    pleader is entitled to relief”
         OK – Do have to plead elements of our claims
         Fed – enough facts for the claim to be plausible
         Not just legal conclusions
         Swank – “Plead enough facts to show you have a plausible claim, cannot
            just plead conclusions of law”
         Forms are inconsistent with Twombly
         Cannot plead inconsistent facts, can plead inconsistent claims
                 No Rule 11 “good faith” issues
                 Rule not to file frivolous pleadings
                 Inconsistent claims in same or different counts?
                         o Rule 8(e)(2)
                                  allowable
                         o OK – 2008(e)(2)
                                  Allowable only when legitimately in doubt of basis
                                   for recovery
o   Then, demand for judgment, prayer for relief
         Fed – Do not need specifics “more than 75,000”
         OK – Greater than 10,000  do not allege amount (12 OS 2008) –
            MIGHT BE 10,000???
                 Just state greater than 10,000
                 Except when suing on contract, then specify damages
         FRCP 54(c) - No matter what your prayer is, you’re entitled to what you
         May plead amount to be shown at trial
         Default judgment – Motion for default judgment, need exact amount in
         “Special damages” – FRCP 9(g) or 2009(g)
                 Definition – Do not come naturally from the wrong
                          Must plead them to recover them
                              o Emotional distress
                              o Future medical expenses
                              o Loss of profits
           o OK – On cover sheet, use CJ for damages > 10,000

   - Always first allege subject matter jurisdiction “Plaintiff is a citizen of X, defendant is a
      citizen of Y, and the amount in controversy, not counting interest and costs, exceeds the
      sum specified in 28 USC 1332.”

Defendants Answer/Motion
   - 20 days to crossclaims and counterclaim replies too – Rule 12(a)(1)
         o Do not count day that triggers event
         o Count Saturdays and Sundays and legal holidays (6(a)(4)) lists
         o If it ends on a Saturday, Sunday or legal holiday (can wait till next business day
         o NOTE: If time being measured is less than 11 days, do not count Saturdays,
            Sundays, and legal holidays (Rule 6(a)(2))
         o NOTE: If by motion and denied, 10 days to file answer.
   - Types of answers
         o 12(b)(6) – Factual/ legal sufficiency test
                 If the plaintiff proved everything she alleged, would she win?”
         o 12(f)
                 Motion to strike
                 Before response or within 20 days if no response allowed
                 Strike insufficient claims or extraneous material
                 Court can do it on its own, or, grant non-timely motion by party
         o 12(c) – Judgment on the pleadings – SAME THING AS 12(b)(6) – Only called
            differently AFTER answer has been filed
         o 12(e) – More definite statement, must be made before answer
                 Only allowed if responsive pleading is allowed (use motion to strike
   - Fed
         o Defendant has 20 days to respond
         o Do not count first day served
         o FRCP 6
         o Add 3 days for motion by mail
         o Any motion must be responded to in 14 days
         o If service is waived, 60 days, 90 if out of US
-   OK
       o Do not count first day served
       o 2012(g)/2012(b)
               Specifying why petition is defective
               Not required in Federal court, but should do
       o 2012(a)
               Waives objections you have under 12(b)(2),(6),(9)
       o Defendant has 20 days to respond
       o Add 3 days to motion by mail
       o Any motion that must be responded to in 11 days, does not count weekends or
          federal holidays
-   Responses
       o FRCP 7(a) – Required to respond to counter-claim
       o Respond
               Admit (8(d))
                       Must admit true allegations or violate rule 11
                       Do not have to admit damages
               Deny (8(b))
                       JUST DENY. “Deny allegations of paragraph 4.”
                            o “In response to Paragraph 4, defendant Admits allegation
                                that it is a Penn. Corporation, but denies the rest of the
                       General denial
                            o Make sure each fact is actually wrong, otherwise rule 11
                            o Qualified general denial
                                     Can do it by paragraph
                            o Specific general denial
                            o Negative pregnant, be careful, - did not drive negligently
                                on main street implies you did elsewhere
               If you do not admit or deny, court treats as admission 8(b)(6)
               Claim lack of information
                       8(b)(5) – Counts as a denial if done properly
                       Rule 11 – Reasonable inquiry
                            o In your control
                            o Matter of public record
                            o Sanctions result
       o Do not respond
               Default judgment
       o Plead new matter 8(c)
       Affirmative defenses
             Inject new facts, which, if true, entitled defendant to judgment
             Possible Waiver:
                    o If defendant does not assert an affirmative defense, she may
                       not be able to raise it at trial. Unless she is permitted to
                       amend to set forth the defense. If she puts on evidence, the
                       plaintiff can object that it is at variance and the court
                       should refuse to allow the evidence to be submitted.
             Code states:
                    o Require replies to affirmative defenses
             Notice states:
                    o Reply not required
             Must plead properly
             BOP on defendant
             If not sure, plead it anyway
             Everything plaintiff says is correct
             8(c)(1) – affirmative defenses (19 possible, not exhaustive)
                    o Can be raised in
                            12(b)(6)
                            Summary judgment
                            Answer
             Diversity case
                    o Must use one of the 19 federal, but can use state law
             Subject to same 8(b)(1)(a) –
                    o “A short and plaint statement of the defense to each claim”
             Subject to same Rule 9
             Subject to same Rule 15 - Amendments
             Affirmative defenses are an entirely new matter, nothing to do with
               facts of plaintiff’s claim
                    o Need to plead or move to amend them
                    o Can sneak evidence in without objection, order amended,
                       issue then allowed at trial (variance)
                    o Hypo: Assault and battery claim
                            Defense: I never hit her
                            Affirmative defense: self-defense
                    o 8(c)(2) – Mistakenly treat affirmative defense as
                       counterclaim, court will treat it as an affirmative defense
o Hypo(1): 21 days to answer, has not made reasonable inquiry
     Use rule 6(b) to extend time
             (1)(a) – before time limit
                            (1)(b) – after time limit for excusable neglect

   - 41(A), 12 OS 682, 683, 684
   - Notice of dismissal
          o Stipulation of dismissal signed by all parties
          o Without prejudice unless stipulated otherwise
   - By court order
          o Defendant must approve if counterclaim filed, unless it can be judged differently
   - What cuts off right to voluntary dismissal?
          o Service of defendant’s answer
          o Motion for summary judgment
                 Fed – 23 Must always get permission for class action
          o OK
                 Plaintiff cut off after pre-trial conference
                 No limit on file and dismissal
          o Federal
                 Rule against repeated filing and dismissal
                 No unilateral dismissal without court permission after the answer
                         On the merits if dismissed before (ONLY BY “notice” OF
                         41(a) dismissed twice?  with prejudice

Involuntary Dismissal

   -   Either by motion of defendant or sua sponte
   -   By court order
           o Defendant must approve if counterclaim filed, unless it can be judged differently
           o Without prejudice unless otherwise stated
                   Prejudice – “on the merits, SAME THING”
           o OK RULE 5
                   Failure to prepare may result in dismiss with prejudice
           o Rule 9 Diligence in prosecution
           o Rule 16 – Judge on own motion can dismiss with prejudice
   -   41(b)
           o With prejudice
                   Bars plaintiff from bringing the case in the same forum
           o Ways to get dismissal
                   Failure to prosecute
                           Even attend pre-trial conference
                   May adopt local rules FRCP(83)
                           Failure to get summons served
                   Violate any FRCP
                   Violate any rules or orders
                   Fail to comply with court order
   -   Unless for jurisdiction, venue, or failure to join a party is on the merits
   -   Lack of jurisdiction and venue are without prejudice
   -   Should warn plaintiff and provide opportunity to be heard


   - Rule 6(b), 54(c), 55, 37(b)(2)(a)
   - 12 OS 688 – Proof of damages
   - 12 OS 2004(b)(2)
   - 12 OS 2004(c)(2)(c) – service by mail
   - 12 OS 3237
Default v Default Judgment
   - May have appeared, but failed to answer
          o Receive notice 3 days prior to hearing for default judgment
   - Rule 55(A)
          o Entering a default
          o Administrative action by clerk
          o Every district court has a court clerk
                   OK – Elected
                   Fed – Appointed
   - If a defendant is in default, plaintiff presents proper papers, clerk must enter a default
      judgment (NOT IN OK)
          o Only on plaintiff’s complaint
          o Not counterclaim or crossclaim
          o Damages must be certain or can be computed
                   “Reasonable amount” cannot be computed
          o Must show defendant is not incompetent or an infant
          o Clerk may not be allowed to do this notwithstanding Rule 55
                   Check local rules
                   Western District of Oklahoma prohibits clerk from doing this
   - OK – Motion for default judgment
          o Rule 10 – Notice required
                    Maybe not in small claims, divorce, detainer, forceable entry
   -   Default
          o Ways – FRCP 55
                Defendant never appears or files answer and never responds
                Makes appearance then never returns
                        Must give notice three days before hearing for default judgment
          o Default judgment
                Rule 60(b)
                        Motion to set aside judgment
                        Must be within one year
                        Reasons
                               o Mistake
                               o Inadvertance
                               o Surprise
                               o Neglect
                               o 60(b)(6) – Any other reason that justifies relief
                        Can appeal this
                Plaintiff’s do not have a right to default judgment
                Courts will grant for
                        Prejudice towards plaintiff
                        Bad faith
                        Weak merits
          o Sanctions
                Penalty to default
                Rule 16 and Rule 37
          o Hypo:
                Lady comes to office, has not filed answer on time, but has not been in
                   default yet
                        6(b) motion to extend
                               o Have to go to the court and show good cause
                        Wait for default to be enforced
                               o Rule 55(c) motion to set aside the default
                                      Must show good cause to judge
                                      Without prejudice, court will probably grant it
                                      Decision is not appealable

Rule 15
   - Right to amend complaint
        o Allowed once before responsive pleading OR
        o Within 20 days of service if responsive pleading is not allowed
       o AFTER:
                Must have court permission OR
                       Leave to amend should be granted freely when justice requires
                          unless the other party is clearly prejudiced
                Consent of the other party
       o Can amend pleadings to conform with evidence presented at trial
                If other party objects
                       Allow amendment to cover issue raised
                       If parties expressly or impliedly agree to allow an issue at trial not
                          raised in the pleadings
                              o Legit
                       If not
                              o Can be added if no prejudice would result
                If other party does not object?
                       Can amend pleading
                Either way, failure to amend pleadings does not affect trial outcome on
                  these issues
-   Answer to amended complaint
       o Must respond within 10 days of amended pleading or within original response
           time (whichever is longer)
-   Relation back
       o Statutes can specifically permit
       o Issues:
                Allowed by statute of limitation
                Arose out of the same transaction, conduct or occurrence
                Substituted party knew or should have known action would have been
                  brought against them but for a mistake
                Original party jointed prior to the statute of limitations
                Plaintiff decides to sue one over the other with an informed decision
       o Nothing in Federal Rules
                In federal courts, amendment relates back to the date of the original
                  pleading so that the amendment is not barred by the Statute of Limitations
                  as long as the claim or defense in the amended pleading arose out of the
                  same conduct, transaction, or occurrence set forth in the original
                Statutes of limitation can specifically permit
       o OK
                Relates back if it arises out of contact, transaction or occurrence
                2015 – Ammendmets to add omitted counter claims do not relate back
       o Other states
                Unless adopted rule similar to FRCP, will not allow after statute has run.
       o Process
                Original pleading filed before the expiration of the statute of limitation
                 applicable to the claim for relief
                Within the statute of limitation period + time allowed to serve complaint
                 (120 days)
                Party had:
                      Notice of original action
                      Knew or should have known, but for a mistake regarding the
                         proper party, the action would have been brought against the new
                      The claim asserted by or against the new arty grew out of the same
                         transaction or occurrence as was involved in the original
       o Marsh
                Once notified of litigation, no further notice required under statute of
                 limitations. Original pleading must fairly disclose the general fact pattern
                 that the new claim arrises from
       o Examples:
                New plaintiff is a successor in interest
                Plaintiff becomes incompetent
       o Hypo: Day before statute runs, I was hurt, other party ran off. Can you sue John
           Doe and then substitute the real defendant later?
                SPLIT
                      Yes
                      No?
       o Supplemental pleadings (Rule 15(a))
                Stuff that happened after filing of petition
                Motion to set forth events occurring after the pleading was followed
                Not events that occurred before but not discovered until after the filing
                Need court permission
                Difference with amended
                      May not need court permission
                      Amended pleadings substitute for the whole pleading
                      Supp. Pleadings cant be used for entirely new separate distinct
                         causes of action
-   Rule 15(e)
       o When justice so requires (with court permission)
                Exceptions:
                      Lack of diligence
                      Undue delay
                      No prejudice
   -   OK Rule 2015
         o Can amend once as a matter of course before a responsive pleading

   - Tools
          o Rules of Professional Conduct
                ABA
                        False “material”
                        Failure to disclose fraud conduct – 3.3(b)
                OK – False BLANK
                        False
                        Failure to disclose fraud conduct – 3.3(a)(2)
                Inherent power
                        Courts have inherent power to police and punish those before it
                        OK – Inherent equitable authority to impose penalties in a lawsuit
          o Rule 11/2011
                Rule 11
                        Does not require sanctions
                        Who can we sanction?
                              o Attorneys
                              o Law firms
                                      Except exceptional circumstances
                              o Parties
                                      11(c)(1) Pro se also
                        Who can sanction?
                              o Parties
                              o Lawyers
                              o Judges
                              o Witnesses
                                      Some say yes
                                      Some say you must fit under Rule 24 first
                        Can get costs and attorney fees
                        Cannot impose without notice
                        How to sanction
                              o Prepare motion
                              o Serve on other party
                                      Rule 11 safe harbor must be separate from the
                                      Judges are not bound by the safe harbor rule
                              o 21 days later, file the motion
                          Only pertains to written arguments and oral arguments in support
                           of written documents
                               o Signing
                               o Filing
                               o Admitting
                               o Presenting
                        Signing
                               o Need
                                        Name
                                        Address
                                        E-mail
                                        Telephone
                                        Should include all though and fax
                 Rule 2011
                        Defines frivolous
                               o Bad faith
                               o Without any rational basis in law or fact
                               o RULE 11 DOES NOT
                        Signing
                               o Need
                                        Name
                                        Address
                                        Bar number
                                        Telephone
                                        Should include all though and fax
          o Parts of U.S.C.  Ignore
          o Verified pleadings
                 Divorce
                 Paternity
                 Service by publication
                 Named defendant
                 Stock holder derivative

   - In general
          o Discovery rulings are not appealable
                 Unless cerified order OR
                 Writ of prohibition
   - Scope
          o Relevant and not privileged
        o Any parties defense to subject matter versus the claim/defense
-   3 goals of discovery
        o Narrow issue
        o Learn about your and their case
        o Prevent lost information
-   Other purposes
        o Speedy action
        o Shorter, less confusing trial
        o Settlements
        o Summary judgments
        o Other witnesses
        o Unknown facts
        o Gain admissions
        o Impeachments
                 Trial testimony different from deposition
        o Prepare for cross examination
        o Assess other side
                 Compelling party
                 Preparedness of attorney
-   Swank’s goals of discovery
        o Assist in a fair trial for all the parties
        o Preserve evidence
        o Determine issues in the case and narrow them down
-   Two types of information
        o Support their claim
        o Support your claim
-   Expert witnesses
        o Not part of initial disclosure
        o Fed
                 26(a)(2)
        o OK
                 Depose and then interrogatory expert witnesses
-   Who pays?
        o Tailored and relevant
        o Availability from other sources
        o Cost of production versus amount in dispute
        o Total cost of production versus each parties resources
        o Relative ability of each party to control the cost
        o Importance of issues at stake to the litigation
        o Relative benefit of the discovery to each party
-   Relation to rules of evidence
       o Are not limited to admissible materials
                Need only reasonably lead to discovery of admissible evidence
       o Privileged information
                Diversity cases use state law
                OK – 2502
                Fed
                        26(b)(1) – relates to non-privileged material
                Secret, confidential – Not protected
                Protects communication and not facts
                Dr./Patient
                Client/Attorney
                        Client or someone who sought to be a client
                        Person who was admitted to was an attorney or a subordinate of an
                               o Attorney must be licensed to practice in the state
                        Communication relates to a fact
                               o You giving them advice or them telling you
                        No strangers or third persons can be present
                        For purposes of securing an opinion on the law or securing an
                        I WANT TO COMMIT A CRIME! – Not protected
                        Privilege must be claimed expressly
                               o Prepare summary of documents under Rule 25(b)(5)(a)
                        Can be waived intentionally or unintentionally
                               o Disclosing to a third party, not applicable to eaves
                                  dropping, waives everything
                               o Agreements for inadvertent disclosure
                                      Claw back
                                              If privileged info produced, with timely
                                                 notice, can claw it back
                                      Quick Peek
                                              Responding party provides all info without
                                      Court will probably enforce these agreements
                                              Parties at arm’s length agree
                                              Waiver waives any material you disclose,
                                                 plus anything on the subject matter
                        2 tests
             o Control group – Covers communication made by those
                 within the organization with the authority to obtain
                 professional legal services or authority to act upon legal
                 advice once it is given
                      Used in Oklahoma
             o Subject matter – Protects receiving and giving
        OK – Who might be protected
             o Attorney or representative thereof
             o Client or representative thereof
             o Attorney for another party
             o Representatives of clients or representatives
        Attorney work product/trial preparation material
             o Not attorney client privilege information
             o Can be material obtained by others (insurer/agent)
             o Basically
                      Interviews
                      Statements
                      Memoranda
                      Correspondence
                      Briefs
                      Mental impressions
             o In preparation for possible or anticipated litigation
             o Does not protect facts
                      What did he say?  No
                      Was he drinking?  Yes
             o Can get, must show
                      Substantial need AND
                      Undue hardship
                             Shown by
                                     o Hostile witnesses
                                     o Witnesses unavailable
                                     o Time difference between info
                                         obtained and current time
                      26(b)(1) – Always show relevance
                      (b)(3) – Substantial need, without undue hardship,
                         cannot obtain information
             o Policy
                      Prevents one party from doing all of the work
   Husband/Wife
        Some
                 Parishioner/Member
                 In diversity cases use rule of state
                 Opinion work product
                       Discoverable when
                              o Mental impression are at issue
                              o Need for the material is compelling
                              o Example: If lawyer’s advice is at issue, it is discoverable
-   Formal Discovery
       o Initial discovery
               In general
                       All parties disclose what they are going to use to support their case
                       Rule 11 does not apply to discovery
                              o Use rule 37 and 26
                       Not just what you use at trial
                       Party claiming damages must disclose such evidence
                       Must disclose expert witness you are using
                       Automatic
                              o Within 14 days of initial pre-trail conference (FRCP 20(f))
                              o Check local rules
                       Whoever is asking for damages must disclose info
                              o Disclosure concerning damages
                              o If you have insurance to pay the other side’s damages, must
                                  disclose this (DO NOT MENTION THIS TO JURY)
                                       In OK  Only liability insurance for an automobile
               OK
                       Each party
                       All parties
                       Names, addresses, telephone numbers of individuals that you may
               Fed
                       FRCP 26

       o Depositions
             In General
                    Can be oral or written
                    Telephone is legit in OK and Fed
                    No limit on number of questions
                    Fed –
                        o Party taking says how it will be done
                        o Other side must buy a copy
   OK –
        o Stipulate or court says which method
        o Other side receives a copy
   Series of questions asked to a party under oath where all parties
    have opportunity to be present
        o Statements cannot be evidence, need depositions
   Who?
        o Any witness
        o Any party
        o Corporations
                FRCP 30(b)(6)
                Specify matters for examination
                Corporation decides who to send
                        You can name who you want
   Types
        o Trial – Both sides talk to witness
                Examine
                Cross-examine
                Re-direct
                Re-cross
                USE VIDEO to keep from putting the jury to sleep
        o Discovery – Just take statements from your witness
   Unwilling witness?
        o Subpoena (Rule 45) them, if they don’t show, then
            contempt of court
        o Always subpoena your own witness
                If they do not show up, you are subject to sanctions
                   without the subpoena
   How many?
        o Fed – limited to 10 on each side
                Court can allow more or parties can agree
        o OK – No limit
   How long?
        o Fed – Single day, no longer than 7 hours
        o OK – 6 hours between 8:00 and 6:00, not on Saturday or
            Sunday or on a holiday
   In what form?
        o Written – Series of questions sent to other side lawyer
                They then write cross-examination questions
                Why?
                         Interrogatories can ONLY GO to another
                         Depositions have no limit on questions
   Where?
       o A party
                Give notice and it can be taken any place
                Can be quashed if undue burden
       o Not a party?
                Rule 45 on subpoenas
                No more than 100 miles from where they reside or
                   are employed or regularly transact business
                        Can agree to beyond them
                Practical matter – subpoena them from court where
                   they are located
                Forcing your witness beyond Rule 45?
                        FRCP 76(c) – Protective order
       o OK
                3230(b), 2004.1(a)(3)
                        Not a party?
                               o County of residence
                               o Place where subpoenaed
                        Party?
                               o Where action is pending
                               o Party is located
                               o County of residence
                        2004.1 is similar to FRCP 45
   Depositions to preserve evidence
       o FRCP 27
                Before action, or pending appeal
       o 12 OS 3237
       o Preserves testimony of witnesses
   Can get secondary information
       o Quality of lawyers
       o Quality of witnesses – Character
   Can use depositions, interrogatories, admissions and documents for
    summary judgment
   Process
       o Call lawyer on the other side
       o Send notice of deposition
                Give reasonable time (Rule 30(b)
                 Check your local rules
                 Fed
                       15 days notice
                       Time
                       Place
                       Names of deposed
                       Use Rule 5 service
                 OK
                       12 OS 3230(c)
                       Horse and buggy, sufficient time for the
                        usual path of travel + three days after
                        service of motion
                       Can stipulate method of deposition, or court
                        can set the method (by motion)
   Objections
       o Local rules and Rule 30
                Form
                Leading
                Nonresponsive
       o Make these or waive them
   Sanctions
       o They do not show?
                Call the other side
                Motion to compel OR
                Ask for sanctions
                Where do we go for these?
                      Not a party?
                             o District court where discovery is
                                 being held
                      Party?
                             o Court where action is filed
       o You do not show?
                Pay expenses
       o Other lawyer no show?
                Probably have to redo
                Can motion for sanctions
       o What if they refuse to answer questions?
                Rule 37(a)(3)(b)(i) – Motion to compel
                If granted and non-compliance  sanctions
                     o 26(g) attacks discovery abuse and does not require motion
                       to compel
                            Every disclosure must be signed, by signing, the
                               lawyer certifies the document
                                   Without substantial justification, court
                                      MUST impose sanctions on signer or party
                                      signed on behalf of

o Interrogatories
       Roseberg
              Interrogatories must be relevant to claim or defense of any party
                (or relevant to the subject matter for good cause) of the pending
                action and be reasonable calculated to lead to the discovery of
                admissible evidence
              If not relevant, but may lead to relevant material, it’s alright
              IN OKLAHOMA  “Anything relating to the subject matter”
       Can get more detailed information
              Other party must make reasonable inquiry as to the answers
       Limits
              Fed – 25
              OK – 30
              BUT, can get more with court permission or stipulation of parties
       Any time after filing lawsuit
       OK – Can serve them with your Summons
       Fed – Wait for discovery conference under 26(f)
       Time to respond
              30 days
              40 Days id attached to petition
       Use these for the first wave of discovery
              Discover who you want to depose
       Lawyer signs them, party answers them under oath
              Do not answer or object?
                    o Call the other side
                    o Move for sanctions
       Businesses
              FRCP 33(d) – Option to produce business records
                    o “Specific set of records”
                    o Business record exception
       Objections
                 MUST BE stated with specificity, FRCP 33(b), and address each
                 Reasons:
                      o Overbroad
                      o Oppressive
                      o Irrelevant
                      o Burdensome
                      o Protected by privilege
                      o Not calculated
                      o Reasons covered in 33(b)(2)
o Admissions
     Reduces number of issues
     Limited to parties ONLY
     Not under oath
     Require reasonable inquiries
     36(a) – Parties must qualify answers to a request for admissions if they are
        true in party
     Types
             Fact
             Opinion of fact
             Application of law to fact
     Failure to answer?
             After 30 days, they are considered admitted
     6 Options
             Admit
             Deny
                    o If denied, and proved otherwise, can get a sanction to
                      recover your costs in the matter
             Provide detailed explanation as to why you cannot admit or deny
             Object
             Move for protective order
             Ask for extension of time
     They can be withdrawn
             Prior to trial
     Nothing in rules on number of admissions
             Local rules can set these

o Production of Documents
      In general
             FRCP 34
               Only applies to parties, BUT
               Can subpoena other side and ask them to bring records with them
                with subpoena deuces tecum
                    o Rule 45 and 2004.1
                            Must go to state of the person you wish to subpoena
             Applies to e-mails, faxes, hard drives or other electronic devices
             Must be in possession, custody or control
                    o If you can get it usually fair game
             Establish a record destruction policy before getting sued
o Medical discovery
     Does not have to be a physician, can be licensed medical examiner
     FED
             FR 501
                    o Federal question – common law
                    o Diversity – state law
             Process
                    o File a motion
                    o Must go to court unless they consent
                    o In controversy but not part of claim?
                            Show good cause
                    o If court orders, but they refuse
                            Cannot hold in contempt, but can use sanctions in
                               Rule 37
     OK
             Process
                    o Serve notice
                    o No show without objection?
                            Motion to compel
                    o In controversy but not part of claim?
                            Must show good cause
                    o If court orders, but they refuse
                            Cannot hold in contempt, but can use Sanctions in
                               Rule 37
             Law of privilege – Physical condition as an element of our claim
             Can get repeat examination after a year
             76 OS 19
                    o Sue Dr. for malpractice, and waive any privilege to them
             76 OS 19
                    o Any hospital/Dr. must produce your records
                    o Refusal is a misdemeanor
                          63 OS 9B9/948
                                o Can get info from state medical examiner upon showing of
                                   good cause
                        Someone wants to examine your client with a crooked doctor?
                                o 12 OS 3225(d) – Can send someone with them
                 Compelling a third party?
                        Cannot request their examination unless
                        10 OS 501
                                o Paternity
                                         May order examination of mother/child/father
                        Subpoena deuces ticum and make them bring their eye exam
-   Supplementing Discovery
       o 26(e)(2) – Must supplement if a prior response in some material respect
            incomplete or incorrect
       o FRCP 37(c) – Sanction for not supplementing
       o No duty to supplement deposition
       o OK
                 No sanctions for failure to supplement, court could prevent you from
                   entering it into trial
                 3226(c) – Duty to supplement (Basically the same in OK)
                        Incorrect response
                        People with info
                        Expert reports
-   Spoliation – Destruction or significant alteration of evidence, or the failure to preserve
    property for another’s use as evidence in pending or reasonably foreseeable litigation
       o Elements
                 Party with control over the evidence had an obligation to preserve it at the
                   time it was destroyed
                 Records were destroyed with a culpable state of mind?
                        Reckless, negligent
                                o Destroyed evidence was relevant to the party’s claim or
                                   defense such that a reasonable trier of fact could find that it
                                   would support their claim or defense
                        Willfull?
                                o Presume element 3.
       o Party reasonably foresees litigation?
                 Lawyer’s obligation
                        Issue litigation hold
                        Oversee and ensure compliance
                                o Key players
                              o Monitoring
                       Ongoing obligation
                              o Communicate directly with key players
                              o Remind key players
                              o Produce electronic copies
                              o Preserve backup tapes
       o Document retention policies
                Important
                Destroyed evidence as part of plan? Then OK.
-   Expert witnesses
       o Types
                Informally consulted (ND)
                Specially employed, not testifying (ND w/o exceptional circs)
                Not testifying, but showing opinion at trial (D)
                Expert testifying at trial (D)
       o Can depose
                Retained and used at trial
                Employees
                Viewing experts
                26(b)(4) – Upon showing of exceptional circumstances or rule 35
                       Retained and will not be used in trial
                       How can we show exceptional circumstances without their names?
                              o Split of authority, some require disclosing the names
       o Disclosure requires – Identify any witnesses who may be used to present expert
           testimony (90 days before trial 26(a)(2))
                Failure- could prohibit expert from testifying
                Must accompany with written report prepared and signed by expert
                       Must include the data or other info considered by the witness in
                          forming opinions
                After report, expert can be deposed
       o Must disclose subject matter and summary of facts and opinions of
                Viewing experts
                Employees not normally used as experts
       o Any expert requires some fashion of disclosure
                26(A) – Requires any facts or documents the experts relied upon to be in
                  their written report
       o Informal experts  No discovery. Look to:
                Manner in which consultation was initiated
                Nature type and extent of information or material provided to, or
                  determined by, the expert in connection with his review
                 Duration and intensity of the consultative relationship
                 Terms of consultation
                     Payment
                     Confidentiality of test data or opinions
          o OK  Functionally the same
               No initial disclosure
               Sent interrogatory, then you can depose those expert witnesses
               Can ask for same info that is in the 26(A) report
               Provision for retained/specially employed not going to testify is about the
                 same as in Fed court
               Documents given to expert witnesses are not privileged or work product
                 and can be discovered
               Gasson’s general council formed a team of
                     Lawyers
                     Engineers
                     Environmental Specialists
                     Other experts
               They made a report and sent it to the board
               Can the other side get the report?  Prepared in anticipation of litigation;
                 Must show
                     Substantial need and
                     Undue hardship
               Gasson should sign the report and include his opinion to make it attorney
                 work product
               What about photos videos and results of tests?
                     Plaintiff’s lawyer: These were taken shortly after it occurred, no
                        way to reproduce these photos

Timing and Pre-Trial Disclosures, Conferences
   - Discovery Planning Meeting
         o 26(f) – Confer as soon as practicable, at least 21 days before scheduling
            conference, at least 21 days before scheduling conference is held or order under
                 After: Have 14 days to make initial disclosures and submit report of
         o 16(b) – Scheduling order
                 Permits court to hold a scheduling conference
                 Order is a blueprint for litigation
                        Establish time limits for joinder of claims/parties
                For amendments/pleading
                Filing of motion
          May be numerous
          16 lists reasons
          Judge is present
o OK
           No required 26(f)
           Rule 5 is like FRCP 16
                 Covers all pre-trial proceedings
o   Check local rules
o   When?
        Atleast 21 days before scheduled conference or schedule order due under
            rule 16(b)
o   What can be covered
        16(c) – 16 Topics
o   Who has to be there?
        16(c)(1) – Atleast one lawyer at the conference that has settlement
        Must also be prepared
                 If not, 16(f) provides for Rule 37 Sections for
                         o Substantially unprepared
                         o No show
                         o Do not obey order
        Judges are there, and do participate
o   Scheduling orders
        Can be amended for good cause
o   26(a)(3) – Pre-trial disclosures
        Names of witnesses to be called or whose depositions will be used at trial
        List of all documents and exhibits to be offered
        Timing
                 30 days before trial
                 Other side has 14 days to object
        Settlement conferences
                 All civil cases must go to a settlement judge first
                 At least one lawyer present with settlement authority
o   Final pre-trial conference
        Rule 16(e) – “As close to time as trial as reasonable” – Formulate a plan
            for trial including program for facilitating the admission of evidence
        Substitutes for pleadings
                      Usually a couple weeks before trial
                      Results in final pre-trial conference order “reciting action taken”
                      Pretty strict
                            All exhibits ready
                            All witnesses and what they are testifying to
                            May be unchangeable
                                    o Only amended to prevent manifest injustice
                                    o Can be appealed on abuse of discretion
                                            Based its ruling on an erroneous view of the law
                                                     Manifestly unreasonable OR
                                                     Based on untenable grounds
                      OK
                            Be prepared!

   - Civil – Disobeying a judicial order
         o Can coerce and order compel or compensate other party
   - Criminal – Acts disrespectfully of court or disruptive of legal/order or system
   - Indirect – Outside of judges presence
   - Direct – In presence of judge

Sanctions in General
Standard of appeal
   - Abuse of discretion
   - Rule 11 does not apply to discovery
   - 28 USC 1927
           o CANNOT present false evidence
   - An attorney signing a discovery response must certify that he has read the response and
       after reasonable inquiry, believes it is consistent with discovery request, not interposed
       for any improper purpose such as to
           o Harass
           o Cause unnecessary delay
           o And is not
                    Unreasonable
                    Unduly burdensome OR
                    Expensive
   - Purposes
           o To deter
           o To punish
          o To compensate (usually the court fund)
          o Educate other lawyers
   -   The least severe sanction should be imposed
   -   Cases can be dismissed
          o Damages are typically monetary though
   -   Must satisfy Due Process
          o Notice
          o Opportunity to be heard
          o Set hearing for motions, or court can impose on its own, still requires notice and
              opportunity to be heard
   -   26(g) – No motion to compel required (still need notice)
          o Certified signing
          o Sanctions required unless substantial justification is shown
          o Can punish lawyer and party
          o OK – 3226(g) – very similar
                    Does not have substantial justification language
                    Has good-faith language
                    KNOW YOUR JUDGE
          o Rule 37
                    Can sanction lawyer and party
                    Failure to make disclosure or cooperate
                    37(d) – Complete failure in 37(b)
                    37(b) – Partial failure to comply with motion to compel
                    Partial compliance
                           Talk to other party
                           Move to compel (or)
                           Go to 26(g) sanctions
                    You do not want to answer?
                           26(c) – Protective order
                           Object
                           Make other party move to compel

The Right to a Jury Trial
   - Where is it found?
          o Constitution Article III section 2
          o Sixth Amendment
          o Seventh Amendment
          o OK
                  Article 2 Section 19
          o Now
          6th provides for all criminal prosecutions
                Applies to states (Duncan v. Louisiana)
         7 “Preserved” (FROM 1791)
                AS EXISTED at common law
                Never been applied to the states
                       o Look to state law and constitutions
                Only if at common law there was a right to a jury trial in England
                   in 1791
                Distinguishes between legal issues and equitable issues
o   As long as one side requests a jury trial, there will be a jury trial
o   FED – Right to a jury trial, but no right to a judge trial
         Demand in Fed Court
                MUST ask for jury trial
                Written, no later than 14 days after the last pleading directed to the
                       o If you do not, it is waived
                Removed case?
                       o Rule 81
                       o Asked in State court, no need to ask again
o   OK –
         Check your local rules
         DO not have to demand jury trial
         Right to a jury trial can only be abrogated by voluntary consent of waiver
o   Cannot change the name of the action to get a jury trial or remove a jury trial
    (NATURE not name)
o   Analysis:
         Look to nature of action
         Look to nature of remedy being sought
         Compare to England in 1791
         Look not to overall action, but nature of ISSUE being sought
         Equitable?
                No right to jury trial
         Legal?
                Right to jury trial
         Equipose?
                Look to remedy
         Have both legal and equitable issues?
                Try the legal issue first
                Right to jury trial on a legal claim cannot be defeated by calling it
                   merely incidental to the other claims being sued on.
   Requires ordering of trial to find facts first by jury then legal issues
    determined by a judge afterwards
   Example: Sue for specific performance due to breach of contract
        o Jury decides if there was a breach
        o Judge then decides specific performance
   Example (2) : Plaintiff and defendant have side by side tracts of
    land, plaintiff says defendant is trespassing. Seeks injunction and
    low damages
        o Trespass to land is a legal issue
        o Trespass tried first, if found yes, then judge decides
            whether to issue an injunction
   Equitable clean-up doctrine
        o Equity decides all
        o No longer in Fed court
        o OK still uses this
   Example(3): Stockholders derivative action; seeking damages
        o Judge decides if stockholders have a right to bring the
            lawsuit (equitable matter)
        o Jury decides damages
   No clear answer from History?
        o Precedence
        o Functional considerations
   Example(4): Patent lawsuit  entitled to jury trial
        o Judge will interperate the words/definitions
        o Jury decides if patent was violated
   Example(5): Tull was dumping stuff into wetlands, US sued for
    violation of clean water act.
        o Statutory suit  No jury trial usually
        o S.C. looked to remedy  money damages = jury trial
        o Judge then decided penalty (more criminal in nature here)
   When payment is made not to the government?
        o Jury trial less compelling
   Non article III courts
        o Government seeking to enforce a public right
                 Government acting on behalf of public welfare
                 Assigned to administrative agency
                 No right to jury trial
        o Government seeking to enforce a private right
                 Defendant is entitled to a jury trial if he was so at
                     common law
                              o Example: Congress cannot assign FAA to decide all cases
                                 arising out of airplane crashes
                                      Could for regulatory matters – Public concern
                                      But, cannot take right to a jury trial away from an
                  Equitable examples
                       Enforce trust
                       Accounting
                       Mortgage
                       Quiet title
                       Breach of fiduciary duty
                       Specific performance
                       Injunction
                       Declaratory judgment act
                       Remedies:
                              o Specific performance
                              o Quiet title
                              o Reform instrument
                              o Foreclosure (no damages)
                              o Resitution
                                      Back pay
                  Legal examples
                       Against a union for breach of representation
                       Anti-trust aw
                       Breach of contract
                       Remedies:
                              o Monetary damages
                              o Recovery of property
                              o Replevin
                              o Ejection
                              o Forcible entry and detainer
-   Hypo:
        o File lawsuit to injoin, later find they have been dumping.
                 Amend petition, and then can ask for a jury trial within 14 days of this
                    amended petition
-   Juries in State Courts
        o OK
                 Article II section 19 – Civil and criminal
                 Article II section 20 – civil
                 Jury trial if damages > 1,500
   -   Sizes of juries
          o Historically 12 people
          o Fed
                    Rules 48 and 49 permit 6 person juries
                    Most federal courts use 6, can be as high as 12 (THIS IS REALLY ALL
                       OK and FED)
          o OK – Art II section 19
                    >10,000 – 12 person – ¾ verdict
                    <10,000 – 6 person and ¾ verdict
                    Felony – 12 Person AND unanimous verdict
                    Misdemeanor prison < 6 months – 6 person
                    Misdemeanor prison > 6 months – 12 person

Jury Selection
   - Start with panel
          o Should be a cross-section of community
          o Excluded people
                  Non U.S. citizen
                  Unable to read/write/speak English
                  Incapable as to mental state
                  Charged or convicted with crime subject to imprisonment
                  Fire/Police/Military
                  Can Claim
                         Over 70
                         Minor children
                         Voluntary public service man
                  Challenge the panel?
                         Identifiable class
                         Number drawn is not reasonable to number in community
                         Systematic exclusion in selection
                                o Low # from 18-22 vote, use voter reg, possible challenge to
                                     excluding young people
          o Voter registration lists
          o Driver’s license lists
          o OK  driver’s license (NY uses Jury wheel)
                  Or ID card
                  N.D. 50% from voter reg. and 50% from driver’s license, only DL’s from
                    Tulsa county
                  Lawyers are excluded from serving on juries
          o Fed  voter reg. lists
-   Now have panel
       o Need 12?
                OK/FED – Start with 18
                OK – Alternate jurors, pick a couple extra
                Fed – Judges pick 8, to ensure minimum of six
       o Begin voir dire examination
-   Voir Dire – Select jury panel from venire
       o In General
                Judge can send out jury questionnaires
                Can lose a case on voire dire
                Attorney’s can ask question to judge and judge will ask jurors
       o Purposes
                Introduce the parties, lawyers and case
                Determine bias and prejudices
       o OK
                Rule 6
                Attorney’s have a right to conduct a portion of the voire dire
       o Fed
                May permit counsel to do examination, or may do it themselves
                Lawyers usually submit written questions to judge
       o After examination, approach bench
                Pre-emptory challenges
                        Civil cases – 3
                        Must make all three challenges
                        Any reason at all, aside from Batson challenges
                              o Cannot use pre-emptory challenge to discriminate based on
                                   race (Batson or Gender J.E.B.)
                              o Choosing jury is determining representatives on a
                                   governmental body, so selection of jurors even in a prior
                                   suit is a state action (protecting the rights of the jurors)
                              o Must make this challenge before jury is sworn in
                              o These challenges happen away from the jury in OK and
                                   Fed, so panel does not need to be dismissed
                              o Steps
                                        Opponent of challenge must make a prima facie
                                            case of racial discrimination (or gender)
                                                 Juror is member of cognizable racial group
                                                 Party making challenge is removing
                                                    members from that group
                                                 Defendant can rely on the perception that
                                                  pre-emptory challenges can be used in a
                                                  discriminatory fashion
                                               Facts and circumstances raise an inference
                                                  that person making the pre-emptory
                                                  challenge has discriminated
                                        Then burden shifts
                                               Challenger must come forward with a
                                                  racially neutral reason
                                               Trial court decides if discrimination has
                                o Reasons to not have to even be plausible if they are
                                   race/gender neutral
                                        Batson has not extended to homosexuals or young
                                        Jury selection is a state action, falls under 14th
                  Challenges for cause (this one first)
                          Bias
                                o Knowledge of lawsuit, do they have
                                        Previous knowledge or
                                        Pre-conceived opinion
                          Unlimited
                          Fed – 28 USC 1870
                          OK – 12 OS 572-573
                          Happen in open court, if you lose one, use pre-emptory challenge
           o Jury nullification
                  Jury refuses to follow the law
                  They do not have to follow instructions
                  Civil court?
                          New trial
                          Judgment as a matter of law

Motion for Summary Judgment
  - Purpose
          o TO determine if there are issues of fact to be tried
                Yes Motion must fail
  - In general
          o Court excercises great restraint here
          o Similar to JMOL, 12(c), directed verdict
       o Moving party shows there are no issues of material fact and that they are entitled
           to a judgment as a matter of law (not discretion)
       o Do the same procedure to oppose one of these motions
                Summary judgment can be granted for the non-moving party
                Required after other side submits properly supported motion
                       Show facts as to why there is a genuine issue of material facts
                       Moving party must satisfy their own burdens
                       Summary judgment is proper when one party fails to meet its
                          burden of proof on any essential element
       o Do not forget to check local rule
       o All non-contested facts are assumed to be true
       o Doubts are resolved in favor of the non-moving party
       o Evidence viewed in light most favorable to non-moving party
                Evidence can overwhelm
       o Inferences
                2 opposing
                       1 outweighs the other – Summary judgment is proper
       o What is a material fact?
                Outcome determinative
                Based on substantive law
       o If granted and want to appeal?
                Only consider what was contained in the motion and did the judge make a
                Always take down everything said when motion is being considered
                Usually will allow a hearing
-   Standard
       o No reasonable jury could believe…
       o In general a preponderance of the evidence standard
       o Judge makes the call, does not
                Weigh the evidence
                Assess the credibility of the witnesses
-   OK
       o Rule 13 – “shall”
                13(b) On appeal cannot rely on or refer to any evidence not included in
                What needs to be submitted
                       Concise written statement of facts
                       References to attached documents
       o 12 OS 2056 – Identical to federal rule (almost) trying to keep up with federal rule
           – “should”
                Shall serve on moving party within 15 days… (always)
          o Three motions
                Demurrer to the evidence
                       Based on the plaintiff’s evidence, no genuine issue of material fact
                Directed verdict
                       Based on all the evidence, no genuine issue of material fact
                Motion for JNOV
                       All evidence, even though jury returned verdict, no genuine issue
                          of material fact
                Timing – very different than Federal rule
                       Can motion from time complaint is filed (within 30 days of end of
                       Rule 13 – Allows for motion anytime after petition is filed
                       2056 – 20 days from commencement of the lawsuit
-   Fed
      o Does not require response, you should respond though
      o Judgment as a matter of law
      o FRCP 56
               20 days after commencement
                     Can ask for time to complete discovery under 56(f)
               Not clear on time to respond
               Motion for entire case
               Can also get partial summary judgment
               Either party can do this
                     Court can do it too, must give other party opportunity to come
               56(C) – Attach discovery information, may attach affadavits also
                     MUST be admissible as evidence
                           o Depositions
                                     Be careful with hearsay
                           o Interrogatories
                                     Generally always ok
                           o Admissions
                           o Are generally admissable
               56(e) – Failing to properly support or assess a fact, gives opportunity to
                support or address the fact
-   Compare to
      o 12(b)(6) – Failure to state a claim
               Only looks to the petition
      o 12(c) – Judgment on the pleadings
      o Burden of establishing non-existance of genuine issue of material fact is on
        moving party
            1. Initial burden of production
                    Prima facie showing that it is entitled to summary judgment
                          o Depends on who has the burden of persuasion at trial
                          o Moving party has burden
                                  Use material in 56(c) that would entitle to directed
                                     verdict if uncontroverted
                                  Then burden shifts
                                          Otherside can produce or ask for more time
                          o Non-moving party has burden of persuasion
                                  1. Submit affirmative evidence that negates an
                                     element of non-moving parties claim
                                  2. Demonstrate that the non-moving party does not
                                     have enough evidence to prove one of their
                                          Trickier – 56’s burden of production cannot
                                             be discharged conclusory
                                          Must show affirmative absence of evidence
                                          If you do not meet your burden of
                                             production, DENIED
                                          Need to address ALL record evidence
                                             allegedly supporting nonmoving party to
                                             discharge burden of production
                                          Can defeat this approach
                                                 o Non moving party points to
                                                    supporting evidence already in
                                                    record that was over looked or
                                                 o Moving party then must address
                                  Then burden shifts back and other side can produce
                                     or ask for more time
            2. Ultimate burden of persuasion always on the moving party

-   Judgment as a matter of Law
       o 1. File complaint
       o 2. Make motion for Summary Judgment
       o 3. Trial begins
       o 4. Plaintiff’s evidence
              Move for demurrer – OK
              JMOL – Fed
       o 5. Defendant’s evidence
              Directed verdict – OK
              JMOL – Fed
       o 6. Jury verdict
              JNOV – OK
              JMOL - Fed

       o In general
              Entitled to jury does not equal entitled to jury verdict
              Judge – Whether reasonable jurors could find by a preponderance of the
                evidence that the plaintiff is entitled to a verdict
              Standard – Sufficient and substantial standard – To prove issue of material
                      Use standard that jury would be using on the issue

-   Judgment as a Matter of Law
       o In general
              Court does NOT weigh evidence or consider credibility of the witnesses
              Even if entitled to jury trial, you are not entitled to jury verdict
              Judge NEVER weights evidence or considers credibility of the witnesses
              View most favorably to non-moving party, give that party all reasonable
                      1. Only evidence produced by non-moving party and all inferences
                        that can be drawn
                      2. OK – All evidence/inferences, but only in light most favorable
                        to non-moving party (disregard conflicting evidence that is
                        favorable to moving party)
                      3. Fed – Also includes any unfavorable evidence that is un-
                        contradicted or impeached
              Hanna – Use federal rule in Diversity cases
              How to:
                      Set out reasons to the particular motion
                            o Non-moving party can come and correct the evidence
                                     Show genuine surprise
                                     Ask judge to open
                          Making post-verdict motion?
                               o Can only rely on grounds in pre-verdict motion
                               o Preserves opportunity to correct
                   Choice of law
                        Split, 10th circuit calls it procedural – Fed law
                        Others, Substantive – state law
                   Reasonable jurors could only find one way? Grant JMOL.
                   To determine issue of material fact?
                        Scintilla Standard
                               o Used in OK for demurrers and directed verdicts
                               o “Any competent evidence showing a right of recovery”
                        Substantial and sufficient evidence standard
                               o Federal court
                               o Majority
                               o “Entire absence of proof showing a right of recovery in the
                                  non-moving party”
                   Timing?
                        OK
                               o Demurrer to the evidence  plaintiffs evidence
                               o Directed verdict  all evidence
                               o JNOV – after jury verdict
                        Fed
                               o JMOL at all three times
                               o Court can also do this on its own with notice and reasons
                        Happens AFTER ENTRY OF JUDGMENT!
                               o Fed – 28 days after entry of judgment
                               o OK – 10 days after judgment is filed
                        Remember!
                               o Must make pre-verdict JMOL or Motion for Directed
                                  Verdict to get JMOL post verdict or JNOV
                               o Trial judge will usually delay in granting motion until jury
                                  verdict for judicial efficiency and pseudo politics
                               o Appellate courts will only overturn a jury verdict if it finds
                                  a complete absence of probative facts to support the verdict
                                  (clearly erroneous)

Motions for New Trials

   -   Dadurian
          o Did not meet standard for JMOL
       o Jury verdict was still against the great weight of the vidence
-   Appealability
       o Denied – Appealable
       o Interlocutory Order – Only appealable if statute or rule allows it
       o OK – Can appeal and grant a new trial
       o A v B, A wins, B moves for new trial, A wants to appeal
                Fed – Wait for final judgment
                OK – Appeal immediately
-   Levels of errors
       o Harmless errors, did not impact the case – motion denied
                Rule 61 – Harmless error rule, unless justice requires otherwise
                Disregards all errors that do not effect the parties substantial rights
                OK – 12 OS 651 – “Materially effects” language = harmless error rule
       o Not an automatic reversal, but error – judge has discretion
       o So significant, would reverse. Abuse of discretion to NOT grant a new trial.
-   Abuse of discretion
       o Arbitrary
       o Capricious
       o Incorrect under the law
       o REALLY tough to get one of these overturned
-   Types of verdicts
       o General – Find for plaintiff or defendant
       o Special verdict – Jury answers a series of questions
-   Court can grant these on its own
       o Should state the reasons
-   Do not need a JMOL to motion for a new trial
-   Which law applies?
       o Hannah, use rule 59
-   Appealing motion for new trial
       o Must always file a motion in order to appeal, must raise issue at trial court level
       o Fed
                Plaintiff moves for new trial, granted
                        Interlocutory order
                        Must wait until judgment is rendered
                Denial of motion
                        Final order
                Do not have to raise all issues
       o OK
                12 OS 952  Immediately appealable
                Must include every error you want considered by the appellate court
-   How to:
        o Set out reasons as to why you want a new trial
        o Grounds
               OK
                       9 grounds, have to use one of them
               Fed
                       Does not explicitly state grounds
                       Basically (from case law)
                             o Serious erroneous result
                             o Against the great weight of evidence
                             o Excessive or inadequate damages
                                     “Shocks the conscience of the court”
                                     Look to state standards in diversity case
                                     Could use remititur
                                             By parties, or sua sponte
                                             Must give option of new trial
                                     Additur – Not permissible NOT IN OK EITHER
                             o Unfair trial
                             o Error in admitting evidence
                             o Error in jury instructions
                             o Misconduct by counsel
                             o New evidence
-   Fed
        o Rules 59, 60
               Can weight evidence
               Can consider credibility of the witnesses
               Do not have to do so in the light most favorable
               Can grant partial new trials, if separate and distinct issues
                       Just the damages (liability is separate from damages)
                       Pain and suffering alone
                             o NO, must be separate and distinct
               Within 28 days after ENTRY of the judgment
                       Cannot be expanded or waived
                       Rule 60(B) – Relief from judgment
                             o Must do within 1 year of the judgment

-   OK
         o 12 OS 651-655
               Within 10 days after ENTRY of the judgment
                      12 OS 655 – After time limit
                                 o Misconduct
                                 o New evidence
                                 o File petition for new trial
                                 o Automatically denied
                                 o Then have hearing
                             12 OS 651 – Not clear, but can get partial new trials

Jury Instructions

   -   Today most jurors get a copy of the jury instructions
   -   Judge has duty to instruct on all material issues and theories
   -   Judge determines issues
   -   Pretrial conferences figure these out
   -   Should use pattern jury instructions, can write your own.
           o Requirements
                    Simple
                    Brief
                    Impartial
                    Free from argument
                    Must do this, if you want to appeal
   -   When are they given?
           o Before
           o During
           o At end of trial, reinstruct
           o FED –
                    After parties rests, lawyers are told what instructions will be given
                    Arguments about instructions
                    Then instructions, judge is last person to talk to the jury
           o OK –
                    Requires OUJI
                    Jury instructions come before arguments of counsel
   -   Can request of the jury instructions (in writing and signed)
           o Refuse
           o Give
           o Modify
   -   When the request changes?
           o Scheduling/pretrial order set dates
           o New issues arise?
                    Submit before jury goes out for the case
                    Fed 51(a)(2)
                           On the record, indicate matter objected to and grounds
          o Can also object to the instructions
          o Fed
                   Before instructions are given
          o OK
                   After the reading of the instructions
   -   Fundamental and plain error
          o Supreme Court – error occurs
                   It was plain and
                   Affected the substantial rights of the parties
                   Same in OK
                   RARE
   -   Misdirection of juries – Difficult to show unless GRIEVOUS
          o Show:
                   Miscarriage of justice
                   Effects substantially constitutional and statutory rights
          o Difficult to get new trial on instructions or appeal jury instructions

Judicial Comment

   -   Fed
         o Does not follow state procedures (Rule 51)
         o Summarize, comment on the evidence (not a witness or counsel)
         o Can provide opinion on facts, as long as jury is clear they are the final judge
         o Constitutes reversible error


   -   General and Special
          o General – We find for the defendant
          o Special –
                  Decide on one or more specific or factual questions – Judge takes answers
                     and rules
   -   OK
          o Article 7 Section 15 – Limited in OK
          o In all trials, jury returns general verdict
          o Court cannot ask on its own for special verdict
          o Need waiver by parties to get special verdict
                  Otherwise, 12 OS 588 – General verdict with special findings
                           If special findings conflict with general verdict
                                  o Special findings control
   -   Fed
             o Rule 49
                   Special verdicts
                        Judge writes questions
                        Jury answers
                        Judge takes answers, applies law, and renders judgment
                   General verdicts
                   General verdicts with interrogatories (special findings sort of)
                        These interrogatories control also

Jury Misconduct – Federal Rule of Evidence 606, OK 12 OS 2006

   -   Cannot use jury’s testimony to overturn the verdict
          o What they said deliberating
   -   Can use extrinsic information
          o Juror’s seen with defendant’s lawyers
          o (In Civil Cases the jurors are not locked down)
   -   Not intrinsic info
          o Juror’s thoughts, reasoning, influence
   -   OK
          o 12 OS 26.6 – Extraneous or outside influence
   -   Be sure to poll the jury (particularly in criminal cases)
          o Can then get sent back to deliberate
   -   Could be lying in voire dire
          o If it was a material question and the correct answer would be a basis for a
               challenge for cause


   -   Each party has a right to sue
           o Each contract or bond gives rise to a separate claim or series of claims, but
               claimant can sue for all money owed to him
   -   Stari decises
           o Binds ALL litigants
           o If an appellate court decides an issue, lower courts should follow
                    Courts CAN change
   -   Law of the case – court decides an issue as the case is being tried
           o Law of the case controls unless you can convince judge to change her mind
   -   Judicial estoppels
           o Equity – Precludes a party from taking a different position in a later trial
-   In general
        o Preculsion only effects parties or those in privity with parties
                Courts cannot change
-   Claim
        o Res judicata – The thing is adjudicated
                Bar
                      Judgment for defendant, any further action on claim is BARRED
                Merger
                      Judgment for plaintiff, any claim by plaintiff MERGED into
                These combined into claim preclusion
        o Affirmative defenses – Remember, can be waived if not brought timely
                Cases must involve same claim or cause of action
                      Look to tests
                The parties to the two suits must be identical or in privity and in the
                 same configuration
                First case must have ended in a final valid judgment
                Final judgment must have been on the merits
        o Primary Rights Approach – Minority
                Number of rights involved determines number of causes of action
                Major example
                      Cab wreck, can sue to recover property damage
                      Then sue to recover personal injury
                             o Will use issue preclusion as to defendant’s negligence in
                                 the first case
        o Single wrongful action/single transaction
                More practical
                      Single wrongful act, one cause of action
                Can be a series of connected transactions
                Insurance situation fixed by statute (subrogation)
                      Insurance sues driver for damages to the car
                      You then sue for personal injuries
                      Would be barred (in privity with insurance company)
                             o Taken care of by court decision or statute
                             o OK – Insurance usually JOINS the insured
                Claims are decided by people
                      Each person has a claim
                Contract actions
                 Sue for first missed payment, excluded others?
                      o Waived right to recover on non-claimed payments
o   Same evidence test
        Whether the same evidentiary showing would justify recovery from
           claimant in both suits (if so, involves SAME CLAIM)
        Focus on liability
                One suit
        Focus on damages
                2 suits
        Not must different than single wrongful action
o   Claim preclusion also effects what COULD have been raised
        Compulsory counter-claims, do not bring, they are precluded later
        Privity:
                A relationship that justifies binding a party, even a non-party
                      o Represented parties
                               Guardian, executor, trustee, class action
                               MUST bring litigation in representative capacity
                      o Substantive legal relationships
                               Successive owners of property
                               Assigning contract rights
                               Controlling the litigation
        Same configuration
                Both cases must be brought by the same plaintiff against the same
                Compulsory counter-claim
                      o Requires D to assert all transactionally related claims
                          against the plaintiff in the pending case (MOST
                               Fed Rule 13(a)
                               2016 OK
                Does not apply to permissive counter-claims
                      o Allows D to assert any unrelated claims (Fed 13(b))
        Valid
                Court has personal and subject matter jurisdiction
        Finality
                What if last case is still waiting on appeal?
                      o Fed, Other states – can use claim preclusion
                                        If B then wins on appeal
                                        Fed Rule 60(b)(5) – Based on an earlier reversed or
                                         vacated judgment
                                       Can set aside
                              o OK – Will hold on second case until appeal is decided
                  On the merits?
                       Do not require merits really, any judgment for claimant is on the
                       Can turn on a procedural issue
                       Examples
                              o 12(b)(6) – Plaintiff does not amend, decision is on the
                              o Summary Judgment – Decision on the merits
                              o JMOL – Decision on the merits
                              o Sanctioned dismissal during discovery? – Decision on the
                              o Dismissal?  Without prejudice  No preclusion
                              o Not on the merits
                                       Lack of jurisdiction
                                       Improper venue
                                       Failure to join a party
                              o Substantive issue  Use state law in diversity cases
                       Ask the question, DID they claimant have the opportunity to get to
                          the merits?
                       Really, applies to cases that were, or could have been litigated –
                          Rule 41 (DIFFERENT FROM ISSUE PRECLUSION)

-   Issue
        o Estoppel by judgment
               Direct
                      Same parties involved
               Collateral
                      New party involved
               Combined to make issue preclusion
        o Cannot use issue preclusion on general verdict
        o Court cannot force issue preclusion
        o Issue preclusion is relevant to burdens of litigating the issue
               Lesser  Bigger NO
               Bigger  Lesser YES
       o Applies to questions of law or fact (does not require jury determination)
       o Cannot be used on Tax Law
       o Use law of state in diversity cases
              Same issue of law or fact or both
              Was it litigated
              Determined by a court
              Issue ESSENTIAL to the judgment
              Valid, final judgment on merits
              May it be used against this party (Due Process Issue)
                      Must have been a party in privity or a party
                      Fair opportunity to litigate
              May it be asserted by this party (Not a Due Process Issue
                      Same issue
                      Offensively or defensively
              Privity:
                      A relationship that justifies binding a party, even a non-party
                            o Represented parties
                                     Guardian, executor, trustee, class action
                                     Invested by that person with authority
                                     Official or agency invested by law with authority to
                                        represent a parties interest
                                     MUST bring litigation in representative capacity
                            o Substantive legal relationships
                                     Successive owners of property
                                     Assigning contract rights
                                     Controlling the litigation
                                     Interests adequately represented
                                     “Virtual representation”
                                             Parties interest adequately represented
      o Is it the same issue?
              Look to evidence
              Rulings of trial court
              Look at pleadings
      o Was it LITIGATED (unlike claim preclusion)
              DOES NOT apply to default judgments
              Different than claim preclusion
      o Determined by court and jury
       o Essential to the outcome
                Must be essential to the outcome
                Winner can not appeal
-   Must be in privity with a party or a party
       o Rule of mutuality – required that the parties be bound by the judgment
                Someone who cannot be injured by a prior judgment should not be able to
                   benefit from the prior judgment
                        Narrow exception –
                               o A sues employee, employee wins, then A sues employer
                                        Can use issue preclusion
                        Broad exception –
                               o A sues employer, employer wins, A sues employee
                                        Can use issue preclusion
                        In general, not required
                               o OK does not require mutuality – Swank’s brother’s case
                                   destroyed mutuality requirement
                               o Would use state law if second case brought in Fed
       o Against a non-party – violates due process
       o Virtual representation
                Asbestos case
                Violates due process
       o Types
                Succeeded to the parties interest, primarily in property
                Non-party controlled the original lawsuit
                Interests were represented adequately by a party in the original suit
                        Guardians/wards
                        Administrator of estates
                Look to differences in judgment amounts
                Was there incentive to litigate completely
                Look to 621 Restatement of Judgments to see exceptions
                Seems to turn on a day in court issue
-   Offensively (non-mutual)
       o P1 through P5 lose against railroad
       o P6 wins, should P6 through P100 be able to do this?
       o Could the non-party have joined the first lawsuit?
       o Is it unfair – Did the party have an opportunity to vigorously defend the lawsuit?
       o Look to factors on 632 (A)-(d)
                Incentive to join
                        If P could and should have joined, may not be allowed to assert
                           issue preclusion
                     Defend action vigorously
                          Unimportant earlier lawsuit
                     Judgment relied on inconsistent with prior judgment
                     Procedural differences
                          Procedural opportunities that are now available that were not
                             earlier that may result in a different judgment
                     Disparity in damages
                     RESULT:
                          Discretion of the court to allow issue preclusion or not
   -   Defensively
   -   In relation to criminal cases
           o Found guilty
                    Non-mutual offensive issue preclusion
           o Plead guilty
                    Was not litigated
           o Aquittal
                    Cannot use, there is a lesser burden of proof from criminal to civil cases
   -   On decisions of law?
           o Yes
                    Can private parties do investigations for the EPA?
           o Cannot if law has changed
   -   Government?
           o Non-mutual defensive issue preclusion? Yes
           o Non-mutual offensive issue preclusion? No


   -   Apply 7 factor test
   -   If not stopped, check for exceptions

Preclusion with Respect to Different Jurisdictions

   -   State to state
           o Full faith and credit clause
           o 28 USC 1728 – Full faith and credit statute
   -   State to fed
           o 28 USC 1728 – Federal court MUST
   -   Fed to state
           o Supremacy clause
   -   Fed to fed
          o Common law of federal courts

Joinder of Parties

   -   Two Questions
          o Is there a joinder rule we can use
          o Is this claim supported by subject matter jurisdiction?
                  Joinder statutes have NOTHING to do with jurisdiction, must check for
                     jurisdiction ALSO.
   -   Process
          o Bring claim
          o 18(A) May join as many claims as it has against an opposing party (OPEN
          o 13(B) – Permissive counterclaim
                  Then can use 18(A) for OPEN SEASON
          o If defendant files cross claim?
                  Cross claim must be transactionally related
                  Then can use 18(A) for OPEN SEASON
          o Rule 14 Interpleader
                  Must be transactionally related
                  Then 18(A) for OPEN SEASON
          o Hypo
                  A endorces not for B C and D
                  A endorsers note for B and C
                  Different parties, but still covered under rule 18(A) OPEN SEASON
                     (18(A)) applies ot ANY party

Supplemental Jurisdiction

   -   Pendant and Ancillary
   -   Pendant
           o Federal question where plaintiff attached state law claim
   -   Ancillary
           o Other than the plaintiff, claim attached state law claim (diversity of federal
   -   In General
           o Discretionary matter for courts to hear the supplemental claims
   -   Ways to be proper
           o Arrising out of one constitutional claim – Relationship between state claim and
              federal claim so that there is 1 constitutional claim
           o Federal question MUST be great enough to confer subject matter jurisdiction

   -   Real Party in Interest
          o Protects opposing party
   -   Capacity to sue
          o Protects minors and incompetents
   -   Standing
          o Protects different interests

Rule 16
   - Court must award reasonable expenses (can include attorney fees)
   - OK – Rule 5(5) – We include attorney fees
   - Failure to comply with pre-trial order
         o Court can dismiss or grant default

Rule 9
   - Dilligence in prosecution
   - OK – 12 OS 1083

Rule 60(b)
   - Excusable neglect
   - Any other reason that justifies relief
   - Will not work
           o Carelessness
           o Lack of rules knowledge

Rule 41(b)
   - Precluded from filing in the same court

Rule 37
   - Did not comply with discovery
        o Can result in dismissal or default judgment

Rule 12
        o No judgment on the pleadings
              Does the same thing for failure to state a claim but looks at all pleadings
                 (after pleadings are closed, but early enough not to delay trial)
        o Waiver section not as extensive
           o Adds 3 more to list
                   Capacity
           o Dismiss for failure to state a claim CAN be waived
           o OK 2012(g)
                   If defect can be corrected, court required to grant leave to amend
           o 12(c) (judgment on the pleadings) and (e) are NOT in OK.
   -   Pleadings and responses to other sides pleadings
   -   Anything here can be raised by motion or pleading
           o Motion is preferred method: So court hears it promptly
   -   12(b)(1) – Subject Matter Jurisdiction
           o Not waivable
           o Can be raised at any time
   -   (2)-(5) – Must be raised in first thing filed in court
   -   12(6)
           o If complaint is not legally sufficient
           o Code states  demurrer
           o Everything is assumed to be true in the pleading
           o “On the face of plaintiff’s claim, he is not titled to recovery”
                   Statute of limitations
   -   12(f)
           o Motion to strike
           o Strike scandalous matter from defendant’s answer or plaintiff’s pleading
           o OK takes care of this at pre-trial conference
           o 12(f) + additional materials  converted in OK to motion for summary judgment;
               some federal courts will do this
   -   12(g)(2)
           o Covers omission of a defense
           o Except 12(h)(2) and (3)

  - Asking the court to do something

Rule 7 and 2007
          o Plaintiff’s pleading – Petition
   - Federal
          o Plaintiff’s pleading - Complaint

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