Stephen Dummer
Civil Procedure II Outline Professor Percy - 2004
Outline of Topics
I. Introduction and Overview FRCP 1 and 2
II. Commencing the Case
A. The Complaint
1. Drafting the Complaint (FRCP 3, 8(a)(e) and (f), 9, 10, 11, 12(b)(6), 38 and 54(c))
2. Filing and Serving the Complaint (FRCP 4 and 5; Local Rule 3.1 & 4.1)
B. Answering the Complaint FRCP 6, 7, 8 and 12
1. Pre-answer motion
2. Answer
C. Amending the Complaint or Answer (FRCP 15)
D. Removal (28 USC §§1441, 1446, and 1447)
III. Additional Claims and Parties
A. Parties FRCP 17 and 25
B. Counterclaim FRCP 13
C. Cross-claim FRCP 13
D. Third-party claim FRCP 14
E. Joinder of Claims FRCP 18
F. Joinder of Parties FRCP 20
G. Compulsory Joinder FRCP 19
H. Intervention FRCP 24
I. Supplemental Jurisdiction 28 USC § 1367
J. Misjoinder FRCP 21
K. Consolidation/Severance FRCP 42
IV. Pretrial Procedure and Discovery
A. Pretrial Conference and Scheduling Order FRCP 16, Local 1 & 16.1
B. Discovery FRCP 26, 30-37, & 45
Local 26.1, 37.1, & 37.2
1. Scope of Discovery
a. Relevance
b. Privilege
c. Work Product
d. Supplementation
2. Types of Discovery
a. Required Disclosures
b. Interrogatories
c. Requests for Production of Documents or Things
d. Requests for Admissions
e. Physical and Mental Examinations of Persons
f. Depositions/Use of Depositions at Trial
g. Subpoenas
h. Expert Designations/Disclosure
3. Discovery Abuse/Sanctions
C. Final Pretrial Conference and Pretrial Order (FRCP 16; Local Rule 16.2)
V. Resolution Without Trial
A. Default Judgment FRCP 55
B. Voluntary/Involuntary Dismissal FRCP 41
C. Summary Judgment FRCP 56
D. Offer of Judgment FRCP 68
E. Negotiation and Settlement Local Rule 16.1(c)
F. Alternative Dispute Resolution
1. Mediation (Local Rule 83.7)
2. Arbitration
3. Other Types of ADR
VI. Trier of Fact: Judge vs. Jury FRCP 38, 39, 47, 48; Local Rule 48.1
A. Seventh Amendment Right to Trial by Jury
B. Jury Size/Selection of Juries
C. Recusing the Judge
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VII. Trial FRCP 43, 49-52, 54, 58; Local Rule 51.1
A. Structure
B. Evidence
C. Burdens of Proof and Persuasion
D. Motion for Judgment as a Matter of Law
E. Jury Instructions
F. Trial to Judge Without a Jury
G. Special Verdicts and Interrogatories
H. Judgment
VIII. Post-trial Motions FRCP 50, 59, 60 and 61
A. Motion for Judgment Notwithstanding the Verdict
B. Motion for New Trial
C. Motion to Alter or Amend the Verdict
IX. Appeal FRCP 54(b) and 62; FRAP 4
X. Effect of Judgment
A. Claim Preclusion
B. Issue Preclusion
I. Introduction and Overview FRCP 1 and 2
Common law responses - early defenses - at common law you could only pick 1:
Dilatory Pleas:
1. challenges to jurisdiction
“not here” - P can‟t bring suit here
2. challenges to P‟s ability to bring action at that time
“not now” - pleas in suspension
3. challenges based on defective pleading/failure to name a party
“not like this” - plea in abatement
Peremptory Pleas:
4. conceding factual allegations, but challenging legal sufficiency
“so what?” - demurrer
5. denying factual allegations
“not true” - traverse
6. admitting the facts, but giving further explanation
“yes, but . .” - plea of confession and avoidance
Some states have both courts of law and courts of equity. Ex. Mississippi
A change from common law (used by some state courts) is Code Pleading:
no longer required to fit it in a writ
pleas a statement of facts constituting a cause of action (ex. negligence, defamation, etc.) & demand for judgment
Problem: What is a statement of facts
1930‟s - Federal Courts:
still had courts of law and courts of equity
different rules were used - no uniformity - so Rules Enabling Act was passed
only limitations was that rules can‟t abridge, enlarge, modify . . .check wording
1938 - Federal Rules of Civil Procedure were proposed and passed
Supreme Court gives final approval of proposed rules
Rule 1: one uniform set of rules for all civil cases
Rule 2: There shall be one form of action to be know as “civil action”. (no writ, no stating a cause of action)
Federal Rules of Civil Procedure allow:
liberal interpretation of complaint, liberal amending of complaint, liberal discovery (anything relevant to a claim or defense)
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Federal and State Court Overview:
US Supreme Court
State Federal
MS Sup Ct US Ct of Appeals (5th Cir)
MS Ct of Appeals
MS Circuit Cts and Chancery Cts US Dist Courts (fed trial ct)
To file in federal court must be based on diversity or a federal question.
2 sets of rules:
1. FRCP - apply in all federal courts
2. local MS rules apply in all fed cts in MS
Anatomy of a Lawsuit:
1. Pre-complaint
Client interview
Determining whether a claim exists
Settlement Negotiations
Determining whether to file a complaint
Determining where to file a complaint (consider evidence rules, jury pool, judge, appellate judge, timing (fed ct is faster),
procedural rules
2. Complaint
3. Defendant‟s Response (D can file a Pre-answer Motion to Dismiss or can answer)
4. Defining the scope of litigation
Amendment of pleadings
Joinder of parties
Joinder of claims
5. Discovery
6. Pretrial conferences, settlement conferences, mediation
7. Pretrial motions for summary judgment and challenging experts under Daubert
8. Final pretrial conference/final pretrial order
9. Trial
10. Judgment
11. Post-judgment motions
12. Appeal
II. Commencing the Case
A. The Complaint
Rule 3: Commencement of Action
A civil action is commenced by filing a complaint with the court.
SOL starting tolling once it is FILED (in Federal & MS).
• Hand Deliver
• Mail
• Electronically File
Date of Commencement is important because:
• SMJ
• Personal Jurisdiction
• SOL
Rule 8: General Rules of Pleading
Rule 8(a): Notice of Pleading
A pleading shall contain:
1. A short and plain statement of court‟s JURISDICTION
2. A short and plain statement of claim explaining that pleader is ENTITLED TO RELIEF
3. A DEMAND FOR JUDGMENT for the relief the pleader seeks
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**Additional info for 1, 2, and 3 of Rule 8 above:
1. Jurisdiction - federal question or diversity (greater than $75k)
SMJ pp. 997
Diversity
State the Citizenship of each party (Corp = Principle place of business)
Amount in controversy greater than 75K
Federal Question (Cite the Constitution
Admiralty
Supplemental Jurisdiction
Personal Jurisdiction
No official rule that you must address venue - good to go ahead and say venue is appropriate
2. (entitled to Alternative relief) [if I lose on one type of relief, I am entitled under another way]
3. What type of relief you are seeking - Rule 54 c - if there isn‟t an answer in a timely manner and you get a default judgment then
you can‟t get any more money than what you asked for in the complaint. Make sure you seek enough money in your complaint so
your recovery isn‟t limited. Seek more than what you would expect to get. Π shouldn‟t get more b/c Δ didn‟t know they were seeking
more and so NO NOTICE!
You have to specifically ask for special damages, punitive damages, attorneys fees (sometimes) bc these types of damages aren‟t
usually sought so you have to give the defendant notice. THINK STRATEGY
Relief in the alternative or of several different types may be demanded. Ex. money damages and an injunction.
4. Each Π must meet the 75K requirement (although there is a split 4-4 on this)
Rule 8(a)(2) Short and Plain Statement of the Claim
Notice Pleading
Does the pleading provide sufficient notice of the claim and relief sought to enable Δ to make adequate response?
Does the complaint contain allegations from which the material elements can be discerned?
Do NOT have to spell out where you are going and how you get there. Vagueness is often good in Complaints.
Rule 8(a)(3) Demand for Relief
Specify type of relief:
Money Damages (Should you specify amount seeking--Rule 54c No b/c it can limit your winnings if less)
Equitable Relief
Punitive damages
Declaratory Judgment
Injunctive Relief
Rule 8 (e): Pleading to Be Concise and Direct; Consistency (writs are no longer used)
(e)(1)Statement of claim should be simple, concise, and direct.
(e)(2) A party may set forth 2 or more statements of a claim or defense.
A pleading is not made insufficient by the insufficiency of one or more of the alternative statements.
Rule 8 (f): All pleadings shall be so construed as to do substantial justice.
Rule 9: Pleading Special Matters (Requiring Heightened Rules for Pleading)
Important sections of this rule are: special damages, fraud, and mistake.
Sets out exceptions - ex. section g special damages
(a) Capacity is usually assumed so not needed.
(b) - For fraud or mistake the circumstances shall be stated with particularity. (even if raising as defense)
For fraud you should get punitive damages and this is probably why there is a heightened pleading requirement.
Be very specific about who, what, when, where.
Mistake - in a k case, voiding a legal document so you have to plead with more particularity
Civil Rights Claims - §1983 - US Supreme Court says can‟t impose heightened pleading requirements in Civil Rights claims
against municipalities - Leatherman case. Some circuits impose heightened pleading requirements in Civil Rights claims
against individuals. 5th Cir says you just have to plead against an individual in a manner that would overcome a qualified
immunity defense.
(g) Special damages requires pleading with particularity (doesn‟t have to be formula specific, specific statement is sufficient)
i. Punitive Damages must be plead with particularity or else you can‟t ask for them.
ii. Cts and statutes can impose heightened pleading requirements.
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Rule 10: Form of Pleadings
(a) Caption; Names of Parties
Name ALL parties - P‟s and D‟s. In later pleadings you don‟t have to list everyone. **(First name will be case name)
File #
Rule 7(a) designation
(b) Paragraphs; Separate Statements
Number your paragraphs (so limit the number of allegations per paragraph), separate transactions (Counts) or occurrences
should be put in separate paragraphs.
**Split up the facts into smaller paragraphs so defense will admit/deny each section rather than the whole set of facts.
(c) Adoption by Reference; Exhibits
You can adopt references or other parts of the complaint without repeating yourself.
Exhibits - ex. attaching a copy of the k - ** Good to do because it becomes a part of the pleadings and court must consider
exhibit when ruling on a motion to dismiss. Could be harmful if something in exhibit can be used against you by Δ.
Rule 38: Jury Trial
You‟re entitled to a jury trial, but you MUST request it - serve demand in writing at any time after the commencement of the
action and not later than 10 days after the service of the last pleading directed to such issue.
Best for Π to demand jury trial on all issues in the complaint.
Δ should ask for jury trial in answer or within 10 days.
If you don‟t‟ request a jury trial in a timely manner you have waived your right.
You can also consent to a bench trial or you can request one.
Rule 12(b)(6): Failure to state a claim upon which relief can be granted (dispositive issue so big judge decides)
How can a complaint be inadequate?
1. Legally - Examples:
1) State doesn‟t‟ recognize claim such as alienation of affection
2) If there‟s a binding arbitration agreement
3) Preempted by fed rr regulations
2. Factually - (e.g. P could fail to allege enough facts to meet the claim alleged)
If D moves to dismiss b/c of a factually inadequate complaint the ct will allow P to amend complaint.
Rule 7 (a): Pleadings allowed
See chart in notes
Rule 5: Serving the Complaint
MS Local Rules:
File a ct copy and a copy for each D,
File cover letter if mailing,
File civil cover sheet (local rule 3.1) (see copy of civil cover sheet),
Pay filing fee of $150.
Also good to request that they send you a stamped, filed copy of complaint for your records.
Serving Δ:
If personally serving, who can serve?
Must be 18 and not a party to litigation. (Runners, clerks, process server, sheriff).
State court - sheriff‟s department will serve in MS
P can‟t serve.
What to serve? Complaint and summons (see summons handout).
Who to? Clerk. File summons/return of service w/clerk.
Do you have to serve D personally? State rules can add more ways to this list!
Can get waiver of process
You can leave it at his house with person of appropriate age/discretion or serve D himself.
Can Mail and Nail if reasonable attempt has been made. (Must be certified mail)
Serve corporation by serving registered agent for service of process.
Some individuals have agents which are “authorized.”
Can also serve corporate officer, managing agent, general agent, or authorized agent. (Rule 4(h)(1))
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Waiver - Waiver of Service of Summons
Δ has 30 days to decide if they are going to waive service.
Δ may want to do this b/c he gets more time to answer (60 days) or
Failure to reply may subject you to charges for cost of hiring process server
If you get D to sign waiver of service of summons the date of service is the date you file signed copy in clerk‟s office.
You have 120 days from date of filing complaint to serve all defendants.
-If you can‟t find D to serve him bc he‟s dodging you can request and extension. (Rule 4(m))
-When you file complaint, your statute of limitations is tolled then you get 120 days to serve D.
If you can‟t find D you want an extension b/c you don‟t want complaint to be dismissed b/c statute of limitations may run out.
-Complaint can be dismissed for insufficient service of process. Ex. if you mailed it to D rather than serving personally
See Rule 10 - plead facts from which all elements can be inferred - don‟t necessarily have to plead duty, breach, causation, etc.
Rule 84 / Form 9 - shortest possible statement - plead facts from which elements could be inferred
Put 1st P and 1st D in order you want bc the case will become known as ___ v. ___
Sample docket #: 3.02 CV 156 - M - D
3 - designates district
02 - year
CV - civil
156 - 156th case in division that year
M - judge
D - magistrate
1 - Eastern district 2 - Delta 3 - Western 4 - Greenville
B. Answering the Complaint FRCP 6, 7, 8, 12
What does the defense atty do after receiving the complaint?
Options:
1. Answer the complaint - within 20 days, if service was waiver within 60 days.
2. Pre-answer motion - Rule 12(b) or 12(e) motion - tolls your time regarding answering complaint.
You can only file ONE 12b motion, so MUST add everything (You can try to amend with rule 15).
If judge denies motion then your time starts running again 12b or 12e.
Arguments included in 12b Motion: (Π bears burden of proof)
1) Lack of SMJ (must have complete diversity, not just one Δ)
2) Lack of PJ
3) Improper venue
4) Insufficiency of process
5) Insufficiency of service of process
6) Failure to state a claim upon which relief can be granted
7) Failure to join a necessary party under Rule 19
3. MUST include record of service (must prove your service of answer)
Rule 12(e): Motion for more definite statement/tolls your time (if complaint is so vague you just can‟t figure it out)
Rule 12(f): Motion to strike - to keep something out of the public record - not often used (DOESN‟T toll your time)
Why would you pick to file a rule 12b pre-answer motion rather than answering?
• Tolls your time and delays investigation you have to conduct in order to admit/deny.
• Saves you time and money if you don‟t have to investigate.
• All 12 b motions are legal motions and don‟t‟ have to do with the merits or facts of the case.
• Raise these motions early before getting into the facts.
12(b)(6) - Failure to state a claim - ct only looks at pleadings with all other 12b motions, other documents and discovery can be used.
** Lack of SMJ can never be waiver. Can even be brought up ANYTIME.
12(h)(2) - Can make motion to dismiss for failure to state a claim with a motion for judgment on the pleadings after pleadings are
closed.
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Arguments can be lost:
If you fail to mention these in 12b motion, you waive them.
1. Lack of PJ
2. Improper Venue
3. Insufficiency of process
4. Insufficiency of service of process.
Things NOT waived:
1. Lack of SMJ
2. Failure to state a claim
3. Failure to join an indispensable party
Other Motions
Rule 5 = Motions can be served on other parties through (delivery, mail, FedEx etc) if other party has consented.
Rule 7(b) = Must be in writing and state grounds, therefore and set forth the relief sought and be signed according to rule 11.
Local Rules = Accompanied by memorandum of authority, can‟t exceed 35 pages etc)
Rule 6 - Calculating time
• Runs from the day you were served.
• Generally, if something is mailed you get 3 extra days from date of postmark.
Difference between motions challenging service of process v. process
Service of process is the manner in which you were served.
Process has to do with the document.
Rule 8 Answering to Complaint
• (b)(1) - Must admit/deny all allegations
(b)(2) - State in short and plain terms the defenses you are going to raise - this goes back to notice pleading
• Partially deny (be specific)
• If D doesn‟t have enough info to know if allegation is true or false D can say “lacks sufficient knowledge”
• D can admit part of a paragraph/allegation and deny part. Rule 8(b)
• Reminds D that he is subject to same rules in Rule 11 regarding his answer.
Rule 8c - Affirmative defenses
If you don‟t raise them in your answer they are waived.
Rule 8 lists examples of defenses, but the list isn‟t all inclusive.
If you aren‟t sure if it‟s an affirmative defense then you shouldn‟t plead it as an affirmative defense b/c you will have the burden
of proving it.
How do you determine whether it‟s an affirmative defense?
Do research, if there‟s no case law, think about whether it‟s an avoidance of the claim or whether it‟s a denial.
Avoidances are affirmative defenses.
(Π swerved to hit Δ, Π says I was avoiding a child = NOT b/c it is Π‟s burden)
(Δ says Π‟s dam broke b/c of hurricane and not me = NOT, it is a rebuttal to facts)
Can reserve right to raise affirmative defense later (if you must answer but don‟t know for sure) --may violate notice pleading
Defendant’s response to complaint:
If D calls atty at last minute, atty can request extension of time to file an answer
D admits or denies each allegation (If Δ uses affirmative defense, you don‟t have to respond unless ct. orders you to)
Rule 11: If you know something to be true you shouldn‟t deny it. People often deny b/c they say Π has burden of proving it.
Rule 11: Must deny things you know to be false
Do you have an ethical obligation to admit something, even though you as the D know that P can‟t prove it?
Technically under rules you CAN NOT deny factual allegations you know to be true. But it’s widespread practice for
attorneys to do it.
What if you don‟t know something to be true personally but someone else says it‟s true?
You can still deny because you have no personal knowledge.
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Defenses:
D should assert affirmative defenses such as contributory negligence or that other persons were negligent (you have to list these)
D can deny that he was in any way negligent (this is something you may want to add)
What about failure to state a claim?
-you can argue this to show you think it‟s a bogus claim
-you can assert that punitive damages are unconstitutional bc it violates DP and the 8 th A prohibition on cruel and unusual
punishment (preserve this defense)
C. Amending Complaint or Answer FRCP 15 Rule 15
Amending the Pleadings
When and how can you amend your complaint? See rule 15 - Amendments
P gets 1 free automatic amendment if D hasn‟t answered. No permission from D or court is required. D has 20 days to
amend his answer. Once D answers P has to get permission from D or go to judge if D doesn‟t agree to P amending
complaint. To get permission from court you file motion to amend complaint.
What are valid reasons to object to P amending complaint?
1. it would be prejudicial (D‟s ability to respond to complaint is prejudiced)
2. is P acting in good faith (moving party‟s good faith)
3. new claims that are added may be futile (legal futility not factual)
on appeal the standard would be abuse of discretion
Rule 15(a) - Ct should be liberal in allowing amendments - “leave will be given when justice so requires”
• You can amend automatically if you file before Δ filed their answer.
• Δ can amend their answer automatically within 20 days of „serving‟ their answer.
• Pleading schedule set out by court will have a deadline for amending. Your chances to amend are much better if you file
before deadline.
• Standard of review is abuse of discretion when appellate ct rules on motion to amend (hard to overcome on appeal). When
looking at whether trial ct abused it‟s discretion appellate ct must give deference to trial court.
• Much harder to get something reversed under this standard.
Rule 15 -- Amendments to Pleadings
15b - Amendments to conform to the evidence can occur during trial, D should object or will have implicitly consented. If D
objects he has to show extreme prejudice or court will grant amendment (15b).
• Continuance may be granted so D can prepare defense.
15c - Under what circumstances will amendment be deemed to have been filed on the date of the original complaint? An
amendment of a pleading relates back to the date of the original pleading when:
1) Relation back is permitted if statute says so; like SOL.
2) The claim or defense asserted in the amended pleading arose out of the conduct, transaction or occurrence (a vague
standard that „s interpreted differently by cts -
i. some interpret it narrowly and some don‟t) as set forth or attempted to be set forth in the original pleading, or
ii. You can add more plaintiffs and relate it back to original pleading (not unfair b/c Δ knew plaintiffs exist)
3) The amendment changes the party or the naming of the party against whom a claim is asserted -- (changing name of
party - you can do this if party you are seeking to add received notice of lawsuit within required time). Must be mistaken
identity and/or mistakenly entered into complaint. NOT unknown Δs.
Factors the Trial Court will Consider in allowing Amendment:
1) Whether amendment would prejudice the adverse party. (causing them tons of money or injustice).
2) Whether motion was timely filed (no unnecessary delay)
3) Courts don‟t have to allow an amendment that is futile, expired, or unnecessary.
Same Transaction/Occurrence Test:
1) Logical Relationship Test (Broad view, anything logically related)
2) Same Evidence Test (Is ev. that is necessary to prove original claim, the same ev. that is necessary to prove new one?)
Supplemental Pleadings 15(d)
What‟s the difference between an amended pleading and a supplemental pleading? Supplemental is conduct that happened
since you filed your 1st complaint.
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Rule 11:
What are some disincentives in addition to Rule 11 for P‟s lawyers to file frivolous lawsuits?
1. Bar complaints
2. If you take a bad case you could lose $
3. Your reputation is harmed with court, other lawyers, and potential plaintiffs
Rule 11
(a) When you sign pleadings or motions you are making a certification when you file it and later on.
i. You must sign every pleading (even as pro se) and list address and phone number.
(b) You are certifying that: (Types of Rule 11 Violations)
1) No improper purpose (good faith)
2) Claims, defenses, and other legal contentions are warranted by existing law or by a non-frivolous argument for the extension,
modification, or reversal of existing law or the establishment of new law.
-When does it become frivolous? Maybe if court has made several definite statements that it will not support your argument.
3) Factual contentions have evidentiary support or are likely to have support after reasonable investigation
Ex. products liability case where same thing has happened in the past and when you do discovery after filing complaint you
will have evidence that you need.
- You just have to make sure that you have evidence to support your argument even if there is contradictory
evidence/statements like police/accident reports.
4) Denials - when answering complaint denials of factual allegations must be warranted on evidence or are reasonably based on a
lack of info or belief.
(c) Seeking sanctions under Rule 11
If you didn‟t know you were wrong when you filed you are ok.
Lawyer, client and law firm (all those connected to it) can all be sanctioned.
D must give P written notice that he intends to file a motion for sanctions
D must comply with safe harbor provision (Δ must make a motion outlining the Π‟s defect which supports Rule 11)
D must wait 21 days (before presenting it to the court) to allow P to withdraw complaint
Ct may on its own initiative enter an order describing conduct that violates subdivision b. Ct can do it on its own after a
settlement.
Kinds of sanctions:
1. Non-monetary -
Community service, referred to bar, extra CLE
Can client be sanctioned for all types of violations? Client can‟t be sanctions for violations that fall under b2.
What if 2 firms are working together on a case and 1 firm files motion but both firms are listed on record as counsel.
Ct can determine which law firm is responsible.
What if 1 partner at your firm is sanctioned and has to pay an amount - lawyer and firm are both responsible.
2. Monetary sanctions -
Can be based on attorneys fees, purpose is not to compensate but to punish (least amount that will be enough to punish).
Ct can sanction p and order that court gets the money.
Doesn‟t give much incentive for other side to file Rule 11 motion.
Sometimes attorneys are hesitant to file Rule 11 motions b/c if they lose ct can allow attorneys fees incurred in fighting
Rule 11 motion to be awarded
Can award monetary sanctions in the form of fees, fines, or attorney expenses/fees.
• Court can NOT sanction the client, only the lawyer. 11(b)(2)
• Can‟t sanction if a settlement has been reached.
• Court must describe the conduct that resulted in a sanction in their order.
**NEW RULE** Current version of rules say ct may sanction (old version said shall sanction) so now it‟s not mandatory.
Rule 11 also applies to advocating a position- something was true at time of filing and later becomes frivolous.
Rule 11 D - rule 11 doesn‟t apply to discovery - Rule 37 has to do with sanctions for discovery violations.
States also have statutes for sanctioning for filing frivolous lawsuits. This is something to fall back on after Rule 11.
Courts are hesitant to impose sanctions under Rule 11 so Rule 11 hasn‟t deterred the filing of frivolous suits.
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D. Removal
§1441 is the fed stat dealing with removal.
§1441 (a)
allows a Δ to remove a case from a state court to a fed dist court IF the case may have originally been brought in
that fed dist court (i.e. that fed dist court had original jurisdiction)
Case MUST be removed to fed dist court that covers area in which state court is located
Example: case filed in Lafayette Co. court MUST be removed to federal dist court for N. MS. CANNOT
be removed to federal dist court in Wyoming, TN, or even the federal dist court for S. MS.
Once a case is removed, possible that case can be transferred to any other fed dist court (e.g. Piper Aircraft case).
§1441 (b)
If a case is a FEDERAL QUESTION case, it can be removed without regard to citizenship of parties. There‟s NO
NEED to look at the citizenship (or diversity) of the parties in this case.
If a case is based on DIVERSITY JURISDICTION, case cannot be removed if any of Ds are from the state where
case was originally filed (in that state court). In other words, if the suit is brought in any of the Ds’ home states,
none of the Ds may remove on the basis of diversity.
Ex: Π (TN resident) v. D (MS resident) and
The case is filed in Lafayette Co. Court.
D cannot remove to fed dist court of N MS
D already has the home court advantage of being in his home state and CANNOT claim diversity.
§1441 (c)
You can get the same result of this from §1367 which was passed after this section. (If a case has one federal claim
and one non-federal claim, you can remove the non-federal claim; same as §1367).
In the wake of the adoption of §1367, §1441 (c) is kind of beside the point.
Caterpillar v. Lewis – changed an old iron-clad rule. This essentially usurps the power of the states. Once a case is removed
(even if it‟s removed improperly), as long as at the time a fed court enters a judgment there‟s fed SMJ, then the decision will
be upheld.
o Basically, “follow the rules of civil procedure, and you can still get screwed under this decision.” – Czarnetsky, who
was disturbed Ginsberg‟s opinion in this case.
Even if a state court case satisfies the jurisdictional requirements for removal, there are drastic limits as to which court it may
be removed to.
o You can‟t remove to a federal court in another state.
o You can‟t remove to a federal court in another district of the same state.
There is one lonely court that can host a removed action: the federal district court “for the district and division embracing
the place where such action is pending [in state court].”
Therefore, removal only partially displaces P‟s choice of forum: He still gets to choose the state where the action will be
litigated, even if he ends up in federal court in that state due to removal by D.
How to remove:
D files petition for removal with appropriate fed dist court
All work by state court on case STOPS at this point
All Π can do at this point is to claim that there‟s no basis for SMJ.
Fed judge decides removal question; case is either removed or remanded
SCt said in Shamrock Oil v. Sheets, 1941 that removal statutes are to be construed narrowly AGAINST
federal jurisdiction.
Circumstances which warrant remand depend upon:
1. Judicial economy
2. Procedural convenience
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• Fed. Rules of Civ. Pro. § 1446
You must file the “Notice of Removal” within 30 days to the state court after filing for removal with the federal court.
1. Must attach everything Δ has been served with.
2. Must sign notice of rule (certifying that a reasonable investigation suggests removal) Rule 11.
3. 30 days after Δ receives complaint or is served with complaint.
4. If case not originally removable and becomes removable they can do so.
5. If case becomes removable but in a diversity case you can‟t remove after 1 year of commencement.
6. Δ must serve a notice on all adverse parties and also file a copy with state court.
• Fed. Rules of Civ. Pro. § 1369 Multiparty, multiform jurisdiction
**New Statute allowing minimal diversity**
For mass tort litigation saying that when at least 75 natural persons are affected then only one Δ need be from that state to be
diverse.
• Fed. Rules of Civ. Pro. § 1447
1. If Π believes removal improper, they can file motion for remand.
2. If motion to remand is based on SMJ then it can be filed any time prior to judgment.
3. Procedural defect challenges must be made within 30 days.
4. If case remanded, court may order Δ to pay Π fees and expenses incurred b/c of removal
5. Remand orders are generally not reviewable on appeal. (except civil rights cases)
6. You can always remove for federal questions (in Π‟s actual complaint, not if Δ‟s answer with federal question).
All Δ‟s must be joined to remove.
How do you go about removing?
-file notice of removal in federal court.
-Must file notification in state court too.
-You have to also file pleadings and anything else from state court.
-D has 30 days from date you get notice of grounds for removal to file motion for removal.
-Absolute 1 year deadline for removal.
Are there any limitations in diversity cases on removal?
In state defendants can‟t remove in a diversity case b/c they are from that state and should get a fair shot in state court
What if you think P named in state D by fraudulently joining him to avoid removal to federal court?
D can still file your motion for removal and explain the allegation of fraudulent joinder
If P thinks it was improperly removed he can file a motion to remand and he has 30 days to do this.
If basis is subject matter jurisdiction you can file it anytime. The 30 day rule mainly applied to motions to remand that are
technical in nature.
Order remanding a case is not re-viewable.
JOINDER OF CLAIMS
Improper Joinder Standard
1. Δ must show that the other party (usually non-diverse party) is liable.
2. Π then tries to show that the Δ will be shown to have a legitimate claim against that Δ.
Common Defense Rule
Smallwood v. Ill. Central R.R. Co. RR argued fraudulent joinder b/c P‟s claims against MDOT preempted by FRSA. Ct. renamed it
improper joinder. D must demonstrate no reasonable basis for the trial court to predict that the P might be able to recover against in-
state or non-diverse D. Said 12b6 analysis proper in ordinary cases. In other cases, summary inquiry may be appropriate, but only to
identify the presence of discrete and unidentified facts would determine propriety of joinder (like fact that Dr. didn‟t treat P, or in state
pharmacist didn‟t prescribe drug, or a party‟s residence is not all alleged - facts that can be easily disproved). P‟s motive or purposes
is not relevant. Very tailored discovery only after showing of necessity, under tight control of judge. Firmly established “common
defense” rule (if P‟s claims against R.R. would also be preempted, then P hasn‟t fraudulently joined MDOT). MOTIVE is
IRRELVANT to Fraudulent Joinder.
Equitable Tolling
Tedford v. Warner-Lambert Two plaintiffs join and file against a doctor and pharm company. They show one P wasn‟t even treated
by dr. so they sever the other P. Timeline suggests that P joined the second Δ (another Dr) to keep the case in state court and Δ says
fraudulent joinder. Ct said no, Tedford can still proceed b/c she has a valid case. After one year one dr. got out with non-suit and now
the P and remaining Δ were diverse. Remaining Δ now claimed it was OVER one year and for diversity claims you can‟t do it after
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more than one year. Δ1 argues other Δ2 was only added to keep it in state court. Ct. said that removal was ok after 1 year b/c
equitable tolling doctrine applies when P has attempted to manipulate the statutory rules. Now probably overruled by Smallwood! A
likely result will be that P will not settle or non-suit an in-state Δ because it might allow other Δs to remove to Fed Court.
III. Additional Claims and Parties
Joinder - also see review ?‟s, Rule 13, 14, 18, 20
How many claims can the P bring against one D - Rule 18
Other Affirmative Defense (Rule 13 and 14)
1. Counter claims = Involves parties on the opposite side of “v.” (Rule13)
a. Compulsory = Arises out of the same transaction or occurrence
i. You must file these or you lose the ability to use them.
ii. If you have filed this claim in a different court it is no longer compulsory.
iii. It is not compulsory if the original claim is based on quasi in rem or in rem
iv. It is not compulsory if the claim is not mature at the time the original claim is served (immature claim)
v. Must use one of Two Tests: 1) Same Transaction/occurrence or 2) Is it the same evidence?
b. Permissive = Does NOT come from the same transaction or occurrence.
i. You can sue with one of these anytime (about anything)
ii. Δ can assert that permissive counterclaims (assuming ct. has jurisdiction)
1. Ct. can say these are just too crazy and different and kick it out.
iii. Even if the claim has nothing to do with the event they can bring it here (so long as not ii(1))
c. General Rules
i. Δ may use to join additional parties
ii. Trial judge has discretion to order separate trials.
iii. Counter claims are asserted when Δ files answer.
1. Π must then reply w/I 20 days.
2. Cross Claims = Involves parties on the same side as the “v.” (Rule 13G)
a. Omitted by Oversight
i. May be allowed by court (b/c you can normally automatically amend anyway)
b. No such thing as Compulsory cross-claim
i. But once you are compulsory cross-sued you must answer.
c. Δ can cross-claim against co-defendant
i. Can do this if claim arises out of the same transaction or occurrence as original claim.
d. May be derivative or affirmative.
e. SOL on derivative cross-claims is usually tolled when the SOL on the original claim is tolled. Cross claims seeking
affirmative relief do not relate back.
3. Third-Party Claims = Bring action against a party not in the action (Rule 14) In plea’s
Rule 17
Real Party in Interest - Both P and D
Exceptions: Trustees, administrators and executors
Capacity to sue or be sued is determined by law of: State of domicile, incorporation or which state the court sits in.
If you screw up and file a complaint and name the wrong D you can amend the complaint.
What if SOL has run? Rule 17 says no action shall be dismissed on that ground that it is not prosecuted in the name of the real
party in interest until a reasonable time has been allowed after objection for ratification (reasonable time - relates back)
Rule 17(c) - someone can sue as the next friend for an infant or incompetent person if there‟s no guardian (guardian or
representative can also sue if there is one)
Rule 25
What if a party dies? You can substitute a party. Ex. D‟s estate
Must ask if the claim survives the P‟s death or D‟s death (Look to survival statute)
Must sue other party within 90 days of there being a suggestion of death in the record. No substitution required if husband in
wrongful death suit dies if beneficiary (wife) was already a party.
If party becomes incompetent their representative can be substituted.
If interest transferred (corp A is bought out by Corp B), court may order a substitution, but they don‟t have to.
If public officer is sued in official capacity and then ceases to hold that office his successor is automatically substituted.
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Rule 18 Kitchen Sink Rule
• P or D may join “as many claims as he has” against the opposing party once that party is joined.
You can do this if one claim is dependant upon another.
**This allows you to add up damage claims to meet 75K requirements.
• Rationale: Saves time and money
What if D thinks it would be more fair to try the claims separately? Trial court under Rule 42 can sever the trials.
• Rule 18(b) says if you have one claim and your 2nd claim is contingent on you winning the 1st claim then you can bring them
together in the same case (you don‟t have to wait until you win the 1 st claim) = Kitchen Sink
Rule 20 - Permissive Joinder of Parties
Allows P to sue numerous Ds in the same case if it arises out of same occurrence.
• Must arise out of the same transaction, occurrence, or series of transactions or occurrences.
• Must be common question of law or fact.
• New Ds must still meet diversity requirements.
All persons may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative, any
right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any
question of law or fact common to all defendants will arise in the action.
• Joinder is determined by trial court and a lot of deference is given to trail court on appeal (Court‟s Discretion either way).
• Court can choose to sever (order separate trials) if he wants to.
Rule 20 tries to ensure that joinder is used for efficiency
• Mississippi‟s Rule 20 is same as FRCP = Now says there must be a “distinct litigable event linking parties.”
Rule 14 - Third Party Practice
D a can bring a 3rd party complaint against a non-party
P sues D and D sues a 3rd party (3rd party D). D becomes a 3rd party P. 3rd party can then bring in a 4th party.
1. Defending party can file 3rd party claim against 3rd party Π who is liable for some or all of Π‟s claim against Δ(3rd party Π)
2. 3rd Party liability must be dependant on 3rd party plaintiff‟s liability to the plaintiff (It‟s a derivative claim)
a. Saying “it was him, not me” is NOT 3rd party nor “he is also liable.”
b. What kinds of claims could be included? Indemnity.
Ex. P sues seller of product, seller would have a 3 rd party complaint against manufacturer for indemnity
c. Must determine if your state allows “contribution” and thus allow 3rd parties in who contributed to the damage/injury.
3. Lawyer for 3rd party D can assert defenses he has against 3rd party P as well as any defenses against P b/c his liability is
contingent upon outcome of case between P and D. 3 rd party D would assert these defenses if D fails to assert them (ex. Has a bad
lawyer)
4. Can file 3rd party complaint automatically within 10 days of serving answer, otherwise you must obtain leave of court.
5. 3rd party Π must serve 3rd party Δ pursuant to rule 4.
6. In some states, not MS, you have a substantive right of contribution where joint tortfeasor is impleaded and D pays P full amount
and 3rd party D pays third party P for his share.
7. Π may assert a claim against the 3rd party Δ that arises out of the same transaction or occurrence as the Π‟s claim against the 3rd
party Π
If there are 2 3rd party D‟s they can cross claim against each other. Can the 3 rd party D assert a claim against the P? Yes, if claim
against P arises out of the same transaction/occurrence that is the subject of the claim brought by P.
P can then also bring a claim against 3rd party D if it‟s same transaction/occurrence.
If 3rd party D brings his claim, P‟s claim against 3 rd party D becomes compulsory.
2 part analysis:
1. Can you do it under the rule? (Rules 13,14, 18, 20).
2. Can you do it under jurisdictional rule? (subject matter, personal jurisdiction)
There must be personal jurisdiction over 3rd party D.
With compulsory claims and counter-claims you don‟t have to worry about venue
You always have to worry about subject matter jurisdiction. 3 ways:
1. Federal question jurisdiction.
2. Supplemental jurisdiction §1367(a) - same case or controversy [even if not diverse b/c it is compulsory]
3. Diversity Jurisdiction.
Examples
P (MS/TN) sues D (AL) for breach of K for $190k
D counterclaim against P for a $10k breach of K claim
Compulsory counterclaims always give rise to supplemental jurisdiction - automatic jurisdiction
Car accident case
P(MS) sues D (AL) for $100k for negligence
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D makes a claim against Insurance Co (MS/AL)
there isn‟t complete diversity - Does it matter? No, supplemental jurisdiction allows it.
Federal sexual harassment claim
P(MS) sues a corp employer (MS) for a Title VII violation
and a supervisor (MS) for assault/IIED
as long as 1st claim is based on a federal question all you have to worry about is 1367A (same transaction)
-Pendent and Ancillary Jurisdiction-
28 USC § 1367(a) Supplemental Jurisdiction
If court has original jurisdiction over civil action, court has supplemental jurisdiction over claim that is part of “same case or
controversy.”
Prevents Π from suing a diverse Δ (knowing that they will bring in a non-diverse party) thereby allowing them to keep it in
federal court when it should not have been there.
§ 1367(b) - Limited Diversity Cases
If original claim was based on diversity P would be prohibited from bringing a claim against a person made a party pursuant to
Do Any of these exceptions apply:
• Rule 14 (P can sue Δ1 (diverse) knowing they will in turn sue Δ2 (non-diverse). Some commentators say in this situation
subsection B goes too far. So no supplemental jurisdiction in crane accident eg.
• This exception also applies if P sues D1 he couldn‟t later file a claim and add D2 pursuant to Rule 20 (only applies when P is
doing this)
• If 1st claim is diversity and P is seeking to add someone that isn‟t diverse check subsection B for exceptions to see if it‟s
allowed.
§ 1367(c) Court may decline to exercise supplemental jurisdiction.
• Ct. can choose to decline it if they feel it is improper or not in the vein of justice.
SEE JOINDER QUESTION AND ANSWERS
Rule 19 - Joinder of Persons Needed for Just Adjudication
Go Step by Step (Flow Chart):
1. Is the person to be joined a necessary party? Rule 19(a)
A person is a necessary party if:
- in the person's absence, can complete relief be accorded among those already parties?
- would going forward without the person impede the person's ability to protect an interest relating to the subject of the
action?
- would going forward without the person subject those already parties to potential multiple or otherwise inconsistent
obligations, by reason of claimed interest?
• If person NOT necessary, then the court should deny the motion to dismiss.
• If person is necessary, then move to Next Question.
2. Is joinder feasible? Rule 19(a)
- the court must have personal jurisdiction over the person
- joinder must not deprive court of subject matter jurisdiction
- venue must be proper; if the person joined objects to venue and joinder of that party renders venue improper, then the
person shall be dismissed
• If joinder is feasible, then court should order joinder and deny motion to dismiss.
• If joinder is NOT feasible, then move to Next Question.
3. Is the person/party indispensable? Rule 19(b)
Factors to consider are:
- how would a judgment in the case prejudice the parties and the absent person?
- can that prejudice be lessened by shaping the judgment?
- whether a judgment in the person's absence would be adequate?
- if dismissed, will the P have an adequate remedy?
• If court determines absent person is indispensable, then court will grant motion to dismiss.
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• If court determines absent person is NOT indispensable, then court will deny motion to dismiss and permit the
litigation to proceed without necessary person/party.
Other provisions of the rule:
- pleader shall state the names of persons that should have been joined but weren't, and shall explain why they weren't joined
(Rule 19(c))
- if there is a conflict between the class action rule and Rule 19, then Rule 23 governs in a class action (Rule 19(d))
What is the standard of review? It varies among the circuits. In some, the standard of review it is for abuse of discretion on the issue
of whether the person is necessary and on the issue of whether the person is indispensable. In at least one circuit, the standard if for
abuse of discretion on the issue of whether a party is necessary and de novo on the issue of whether the party is indispensable. In
some, the standard of review has not been clearly articulated.
Rule 24 - Intervention
Rule 24 is the opposite of Rule 19 - someone who‟s NOT a party says they have an interest and should be able to join as a P or D
When can a person not a party to the litigation intervene?:
Rule 24 (a) - Intervention of right
A. Person must apply in timely manner and:
B. Do the applicants have an interest relating to the litigation?
- U.S. statute gives person unconditional right to intervene
- person claims an interest relating to the property or transaction that is the subject of the litigation and disposition of
the action in the person's absence may impede or impair his ability to protect the interest
C. Will their ability to protect interest be impaired or impeded (Must meet all three):
1. Applicant claims an interest relating to subject of an action;
2. Disposition my impair or impede applicant‟s ability to protect interests; and
3. Applicant interest not adequately represented
There is a split among the circuits concerning the standard of review for ruling on a motion for intervention as of right.
• Some circuits review for abuse of discretion and others review de novo.
Rule 24 (b) - Permissive intervention
If person timely applies and:
- Fed statute gives person conditional right to intervene
- Applicant's claim or defense and the main action have a common question of law or fact
- Government officer or agency may be permitted to intervene if claim or defense is based on statute, executive
order or regulation
• Permissive intervention is within the court's discretion and the court should consider undue delay or prejudice to the
existing parties.
Rule 24(c) - Procedure
Person seeking to intervene must file motion and attach pleading asserting claim or defense. When constitutionality of
federal law affecting the public interest is called into question, the court is to notify the Attorney General. When the
constitutionality of a state law affecting the public interest is called into question, the court is to notify the state Attorney
General. A party challenging the constitutionality of a statute is to remind the court of its duty to provide notice.
IV. PRETRIAL PROCEDURE AND DISCOVERY
A. Pretrial Conference and Scheduling Order FRCP 16, Local Rule 1 and 16.1
See Local Rule 16.1 regarding Case Management Conference (in notebook)
Time Line Of Procedure Pursuant to F.R.C.P. 16(a), 26(a), 26(f)
and Local Rules 16.1 and 26.1(A)
(attorney conference, required disclosures, case management order)
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(1) File Complaint
(2) Responsive Pleading or Motion
(3) Order from the Court
(setting deadline for initial attorney conference
and telephonic conference with magistrate judge)
Local Rule 16.1(A)
(4) 26(f) Conference; lawyers and unrepresented parties confer to consider:
1. Nature and basis of their claims and defenses
2. Settlement possibilities
3. Identify the principal and factual legal issues in dispute
4. Discuss evidentiary basis for claims
5. Which track? Expedited, standard, complex, administrative, mass tort (Local Rule 1.3 and 1.4)
6. Discuss the arrangements for mandatory disclosures and whether any changes should be made in scope of disclosures
7. Identify any motions, the early resolution of which will have significant impact on litigation
8. Discovery limitations, etc. (phases, etc.) [bigger/more complex cases call for more time]
9. Preparation of proposed case management plan (written 26(f) report)
- whether parties agree to consent to magistrate judge
- date on which disclosures made or will be made
- discovery limitations
- deadlines
- settlement
10. Federal Rule 26(f); Local Rule 16.1(B)(1)
(5) Submit proposed plan within 14 days of Rule 26(f) conference
**Also submit 3 page confidential memo outlining case to magistrate [candid appraisal of respective positions and settlement
possibilities]. The other side will not ever see this, it is only to help in planning of case.
Federal Rule 26(f); Local Rule 16.1(B)(6)
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(6) Exchange required disclosures within 14 days of Rule 26(f) conference: (Must be provided to other side automatically)
-- Name, address and telephone number of any person likely to have discoverable information that party may use to
support its claims or defenses, identifying the subjects of the information (exception - not required to
disclose if used for impeachment purposes only). Don‟t have to disclose people who hurt you.
- All documents, data compilations and tangible things in possession, custody or control of the party that may be
used to support claims or defenses (if voluminous, describe and given opposing party chance to go through
document production).
- Computation of damages, make supporting documentation available for review.
- Copy of insurance agreement which may play any part of judgment or which may make payments to indemnify or
reimburse judgment payments.
(Can stipulate to later time, or can object and state why in proposed order/report to court and court will rule on objection)
(The scope of these required disclosures was changed in 12/2000; parties used to be required to disclose all documents and other
tangible evidence which were relevant to the claims asserted.)
Federal Rule 26(a); Local Rule 16.1(B)(7) and 26.1(A)(1)
(7) Case management conference with magistrate/judge (via telephone) (usually within 60 days of filing of first responsive pleading)
(Go over proposed case management plan and scheduling deadlines)
Judge may think, after reviewing memo, that settlement is possible so he may have them come in and try to work it out.
Local Rule 16.1(B)(8)
(8) Within 10 days of telephonic conference, Court should enter order
(Case Management Order/Scheduling)
Federal Rule 16(b); Local Rule 16.1(B)(9).
(9) Settlement conference (mid-way through discovery)
(Lead counsel and party or corporate representative with binding settlement authority shall appear; notification to persons,
entities with subrogation interests; 5 days before settlement conference, parties are to submit confidential settlement memo
with candid appraisal, estimate of costs including possible appeal which they have discussed with clients)
Local Rule 16.1(C)
B. Discovery
As soon as you have had telephonic conference you can begin formal discovery. Ex. interrogatories, demand to inspect land, requests
for admissions, requests for production of documents. These are limited to parties (not non-parties)
Depositions are not limited to parties. Can also depose non-parties - # of non-parties will be set in case management order.
You can subpoena non-parties. You can subpoena them to bring documents too.
You can request a doctor exam is physical/mental condition is at issue (fed ct)
Typically written discovery is done first. Then depos are conducted.
Depos of corporations are deemed to be the response of the corp. Different employees can respond to questions in different areas.
You can do a lot of informal discovery before you resort to the FRCP for formal discovery.
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Rule 26
a) disclosures you have to make (previously discussed)
b) parties may obtain discovery regarding any mater:
1. not privileged that is
2. relevant to the claim or defense (used to be related to the subject matter).
Can ask ct for permission to request something related to subject matter today
Objections made in discovery:
1. privilege
2. relevancy
3. overly burdensome/costly
4. work product
1. Privileges -atty client (communication is privileged, not the underlying facts) Ex. can‟t ask what did you discuss with your
attorney, but can ask how fast was he driving even if he told atty
-dr/patient - asking for medical records is not privileged as lon as it was treatment of the injury at issue
-clergy in some states
-5th amendment privilege of self incrimination (if there‟s a possibility of criminal punishment)
2. Relevant to claim or defense
changed in 2000 - used to say relevant to the subject matter
Rule 26b2 - Limitations
Gives court authority to limit discovery. Cost/benefit analysis is often used. Ct considers whether it‟s overly burdensome or costly
Rule 26b3 - Trial preparation: Materials
• Known as “Work Product” doctrine. Relevant information that‟s not privileged but it‟s product so don‟t have to disclose.
• Work Product = Documents prepared in preparation the party for its representative in anticipation of trial or litigation.
• A non-party can always get a copy of their own statement.
• This is always controlled by federal law
Hickman v. Taylor - USC about WORK PRODUCT
Read 26 B3 to get all elements most are listed below
Atty collected statements from witnesses of a tugboat accident. Other side asks for transcripts - not fair bc you spent your time and
money collecting statements. Sup Ct is concerned about weakening adversarial process and atty revealing opinions about case. Info is
protected. Work product doctrine can be asserted but it‟s not absolute.
Party seeking discovery can show substantial need and that he is unable without undue hardship to obtain substantial equivalent of the
materials by other means. Parties can agree to exchange or judge will grant a motion to compel.
Must be documents or tangible things and prepared in anticipation of litigation (doesn‟t include facts).
Ct shall protect against the disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other
representative of a party concerning the litigation. These things can never be disclosed. Opinions will be redacted from document
leaving facts.
A party (P or D) can always get a copy of their own witness statement. A witness can request a copy of their statement too. Nothing
wrong with the att‟y asking witness to get you a copy of his statement. This doesn‟t fall under work product doctrine.
There‟s a fine line regarding whether something was done in anticipation of litigation when company always investigates after an
accident and takes notes. Could be argued that this is always done and wasn‟t in anticipation and isn‟t work product.
• Litigation doesn‟t have to be pending and it doesn‟t have to be imminent in order to be “in anticipation,”
so there‟s no set standard.
Rule 26 - Expert Testimony
• A report is required that lists the following: mandatory disclosure of who, what his opinion is, what his basis is, what he
will be used for, exhibits, qualifications, whether he acted as an expert within past 4 years either in a trial or deposition, how
much he is being paid, expert must sign report himself
• Required report doesn‟t apply to treating physicians (only disclose that you will call them but no report is required) Report is
required for witnesses who are retained or are specially employed.
* If expert was retained but doesn‟t give a report and won‟t be called at trial other side can‟t discover that unless they make a
showing (of exceptional circumstances [eg. Π can‟t get it any other way or anywhere else]).
• Party seeking discovery must pay expert a fee for time spent responding to discovery and in deposition. Ex. if deposing an
expert that has been retained by the other side, you must pay them
• No rule regarding informal opinions/consultations. Notes to rule say it doesn‟t have to be disclosed
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• Claims of privilege or work product you must describe the nature of document, communication, or thing. Can‟t just object.
• If you think an area of questions that you know will be asked of your corporate client you can ask ct for a protective order to
completely limit discovery???
• Another example” in peanut butter case manufacturer wouldn‟t wan to disclose patent/trade secret info to become public
info. So it can be given to other side and filed under seal.
Rule 26 (e) - know that you have a duty to supplement discovery responses and interrogatory responses, requests for documents if not
correct or incomplete - see rule
Rule 26 (g) - Rule 11 does NOT apply to discovery so Rule 26 has corresponding Rule 11 type provisions
• Required disclosures must be signed (stating rule 11 type guarantees)
• Certifying that Discovery:
1. Is warranted by existing law or good faith argument for modification
2. Is not imposed for an improper purpose
3. Is not unduly burdens or expensive given the circumstances of the case.
** If you violate this certification the court SHALL sanction for violations.
• Discovery is mainly driven by the parties, nothing is required.
• Formal discovery is the type covered by the rules.
• Examples of informal discovery - requesting govt documents, interviews, internet research.
Model Rule of Professional Conduct 4.2 states “In representing a client, a lawyer shall not communicate about the subject of the
representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has consent
of the other lawyer or is authorized to do so.”
Formal Discovery:
1. interrogatories, request for admission, request for documents
2. experts
3. depositions
Pleadings define the scope of discovery - any matter not privileged that‟s relevant to the matter or defense
- For good cause shown, ct may order discovery of any matter relevant to the subject matter of the litigation
- To be relevant, information doesn‟t have to be admissible at trial, just reasonably calculated to lead to the discovery of
admissible evidence
Rule 26c - Protective order only covers formal discovery but judge has discretion and could issue a protective order for informal
discovery
Protective Orders (If good cause is shown, court may:
1. Prevent discovery
2. Limit discovery
3. Seal depositions with confidential information
Duty to Supplement if:
1. Party learns that an expert gave an incorrect or incomplete opinion (even if other party is not aware).
2. Party learns that an interrogatory, request for production of documents and you learn later it is incomplete or incorrect.
3. NO duty to supplement an incorrect/incomplete deposition response.
Types of Privileges:
1) Attorney/client
2) Doctor/Patient
3) Clergy Privilege
4) Spousal Privilege
5) Gov‟t Privileges (executive, state secret, informant)
6) Journalist (Informant)
7) 5th Amendment Types
These can be waived by 1) Implied Waiver, 2) Express Waiver 3 ) Inadvertent disclosure
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Attorney Client Privilege questions
How would you prepare before an expert deposition after you have received his report?
-give report to your expert
-if you have the money, your expert could attend depo with you
-do internet searches on expert and his work
-check his credentials
Interrogatories
Rule 33
Federal rules - No more than 25 questions (each subpart counts as a separate question) - leads to very long questions
• In MS on case management/scheduling form you determine if case is standard/complex/etc to determine # of questions
allowed.
• Must serve response within 30 days but you can request an extension and will normally get one.
• Objections must state clearly why you are objecting (eg. violates attorney/client privilege.
• Failure to object WAIVES that objection.
• If answer can be derived from business records and there is an equal burden to discover, then responding party can
produce records with sufficiently detailed “how to” instructions.
To respond to interrogatories, client can come in or you can send questions to client.
Person answering (client) must sign and swear under oath that answers are truthful. Atty must sign that he has made all
objections and believes responses to be accurate and based on good law.
You can provide other side with records and they can get their answers form the records rather than you doing it if it would be
just as easy for the to do it. Ex. business records, all customer complaints regarding a certain product.
How much investigation does a corp have to do to determine what happened? Ex. question 24 on p. 260, Must make a
reasonable inquiry/investigation. there‟s a duty to talk to employees to try to get relevant info. You can say that a request is
overly burdensome/costly and object to interrogatory.
Common Objections to Interrogatories
1. Privileged
2. Overbroad, unduly vague & ambiguous
3. Burdensome, oppressive
4. Work Product
5. Non-Discoverable expert information
6. Not relevant to claims or defenses
7. Not reasonably calculated to lead to the discovery of admissible evidence.
Motion to Compel
1. If one side unfairly objects or refuses to answer you must,
2. You must call that objecting side in good faith and try to work it out, then
3. If that fails you can file a motion to compel.
Rule 33 - can produce all business records if burden on responding to interrogatories is same as burden to go through. Party wanting
to produce all documents may not want to allow other side to go through all documents if they don‟t know exactly what‟s there bc
there is no telling what other side will find.
Depo-taking Procedures:
1. All parties to litigation may attend and court reporter attends because depositions are always transcribed.
2. With parties, you just mail them a notice of deposition
3. To depose a party, notify his atty and come up with a date that works for everyone.
4. Then you send a notice of depo (Rule 30b).
5. Send one to every party to the action.
6. If you want party to bring documents to depo, you attach those to notice of depo (called Request for Production of Documents).
7. Response doesn‟t have to be relevant as long as it could reasonably lead to discovery of relevant info.
Rule 30 - Depositions today are often videotaped. Under local rules you have to tell other side how you are going to record depo
(either court reporter or video)
Rule 30(g) - for witnesses who aren‟t a party who are given notice of depo and don‟t show up, party giving notice can be made to pay
other party for their expenses such as atty fees and cost to attend depo. So you should subpoena witnesses - Rule 45
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Service of rule 45 subpoena must be by personal delivery (actually handing it to him)
Mileage allowance and witness fee must be paid to witness. Check is delivered with subpoena via process server.
Rule 30(b)(6) - Deposing a corporation
• Must describe with “reasonable particularity the matters on which examination is requested” - so corp can determine who should
go to depo to answer questions (designate who will testify).
• The persons so designated shall testify as to matters known or reasonably available to the organization.
Are there any limitations on the # of depos you can take? In MS all parties may be deposed and then depending on track there‟s a
limit on the # on non-party depos.
• New rule - no depo can last more than 7 hours. Other side can agree to longer or court order can be requested asking for more
time.
Question witness
1. Other side cross-examines
2. Then you can re-direct
3. Can go back and for the between sides asking questions.
4. At end - ask other side if witness would like to read and sign transcript typed by court reporter.
5. May want to videotape depo in case witness dies before trial so you can show jury/court.
Rule 30(d) - A person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation
directed by ct, or to present a motion under Rule 30(d)(4).
Can‟t instruct client not to answer when you object b/c of relevance.
Magistrate can be called from depo if you want a ruling on your objection right then.
• If Δ is more than 100 miles away, dead, ill, imprisoned, or couldn‟t be located with subpoena.
One way to use a depo is to impeach creditability of witness when you are at trial.
Another good reason to question P at depo is to find out what kind of witness he or she is and how he will come across to a jury (Is she
lying, what does she look like, creditability, will jury be sympathetic to P)
Rule 45 - Subpoena
Non-parties testifying at a trial or hearing: ct where hearing/trial is taking place must issue subpoena (judge doesn‟t have to sign, only
the clerk and the lawyer) - Rule 45 (2)
• Must be personally served (not nail or mail)
• Must pay the person mileage and witness fee for appearing.
As long as witness is within 100 miles of fed dist ct, that ct can issue subpoena.
If out of state, more than 100 miles away, must go to that ct (in that jurisdiction) and get the subpoena?
If you want records from a non-party you subpoena them and other side can
1. object to production of documents and must identify why objecting OR
2. you can move to quash subpoena
• Motion to Quash: (Reasons to use)
1. Time to Comply
2. Distance to Travel
3. Privileged Matters
4. Undue Burden
5. Trade Secrets
6. Unretained Experts
7. Undue Travel
• Protective order can protect confidential documents. Ex. trade secrets
Witness may be compensated if required to travel more than 100 miles.
(d) - duties in responding to subpoena - can hold them in contempt if they don‟t‟ comply
Rule 45 - Subpoena - citizen in foreign country - you have to go through int‟l law process to see if other country has entered into
convention. If so, go through procedure outlined by convention.
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Rule 34 - Production of Documents
deals with parties - Rule 45 deals with non-parties
• Document can mean carts, photos, computer records, anything retrieved from a computer, etc. see 34(a) scope
• Can also request to inspect land.
• Tangible tings may have to be produced. Ex. wrecked car
• You respond to requests for production of documents by filing written response saying what you will produce & what you object to.
• You often produce copies of documents.
• If they have a document warehouse you can compel them to produce the needed documents rather than making you search for them.
If medical/emotional condition is an issue in the case there should be no objection to a request for all medical and hospital records
Tax returns - relevant to show lost income. Can show contribution to charity. P wouldn‟t want to show this. P can avoid producing
tax returns by providing W-2 if other side just wants to know P‟s salary or other info on tax returns can be redacted.
If D asks for all govt reports that P compiled on his own there is no valid objection and p would have to turn documents over.
**Electronic Filings (emails) and meta-data.
1. How do you have to provide it to other side (electronic or on paper)
2. Do you have to fix old data so it is viewable with current computers?
3. Do you have to surrender your computers to the other side for review?
4. When can you request back-up tapes and metadata?
Issues:
a. Must look at scope of discovery (should party be required to restore back-up tapes?)
i. How useful would the information be? Is it worth the cost, who pays for it?
b. Look at cost-shifting (to the requesting party to pay costs)
c. Duty to preserve/sanctions for failing to preserve email.
apocalypse
New Proposed Rules
1. Early attention to discussion of electronic discovery
2. Discovery of electronically stored information that is not readily accessible only on a showing of good cause.
3. Assertion of privilege after production
4. Application of Rule 33 and 34 to electronic discovery.
5. Limit on sanctions for loss of electronically stored information where party has taken reasonable steps to preserve.
Rule 35 - Physical & Mental Examinations of Persons
**Rule doesn‟t exist in state court
When the mental or physical condition of a party or of a person in the custody or under the legal control of a party, is in controversy,
the court may order the party to submit to an exam by a licensed examiner.
When can you get an order for an exam? When is mental or physical condition put in controversy?
--Anytime you claim mental/physical stress/injury
The order must be made for good cause and shall specify the time, place, manner, conditions, and scope of the examination and the
person(s) by whom it is to be made. - Good cause gives court huge amount of discretion. Rule says judge may and doesn‟t say what
good cause means.
Must be a condition put in controversy
Examiner - have to put it in order
-Has to be someone licensed/certified
-Court can appoint an examiner
-be as specific as possible in motion as to what you want examiner to do
Objections other side can make:
1. not qualified
2. tests not reliable
3. bias - have testified too many time for that
(b) Report of examiner:
(1) detailed written report (rule doesn‟t technically say, but the moving party has to provide one to non-moving party)
Exchange of reports - non-moving party has to provide similar report to moving party
Any past records of mental health
(3) Even if exam is done by agreement (not order) exchange requirement still applies
What if examiner refuses to produce report? You seek sanctions. One sanction is to prevent expert from testifying through this
may carry no weight if non-moving party didn‟t want expert to testify to begin with.
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Lawyer‟s role when client is undergoing an examination.
Can seek order from ct or permission from other side to be present but very few cts permit this (grant order)
Rule 35 - Required to provide report of examiner
Rule 36 - Requests for Admission
What can you ask? can only use against a party
Admit or deny factual allegations, statements or opinions of fact or of the application of law to fact, including the
genuineness of any documents described in the request
Can you object? Yes
36 A incorporated 26b1 privilege objection, relevance, objection, and work product objection
26B Once you‟ve admitted something it‟s admitted for the rest of the trial unless you move to withdraw it.
Questions/Concepts
1. What‟s the sanction if other side doesn‟t respond at all within 30 days? Requests for admission are deemed admitted.
2. What if you don‟t think the other side‟s answer is sufficient? May move to determine the sufficiency of the answers or objections.
Ct in most serious case can deem them admitted if the answers do not comply with the requirements of this rule. (rarely happens)
3. What if other side denies something and you travel around country to prove that it‟s true? Rule 37 (sanctions) ct can award you for
your cost and fees if the other side wrongly denies something
4. When do you have to attach a document to a request for admissions? Only if it’s the type of request where you are asking other
side to admit authenticity of document.
Don‟t overlook usefulness of ability to request an admission of authenticity of a document.
Rule 37 - Sanctions
(a) Must first try and cooperate in good faith before filing a Motion to Compel - costs and fees incurred in bringing the motion
(b) Failure to Comply with a Court Order - held in contempt, exclude evidence
(c) Failure to Disclose, False or Misleading Disclosure, Refusal to Admit
(d) Failure of Party to Attend at Own Deposition or Serve Answers to Interrogatories or Respond to Request for Inspection
Rule often says ct shall award sanctions unless . . . . . Ct has discretion
If you fail to make a discovery plan with other side you can be subject to sanctions.
some courts have said that if abuse is so great and complaint is dismissed (as a sanction) that that is a DP violation.
If ct grants the motion, the court shall award expenses/fees unless 1) no good faith certificate, 2) nondisclosure or objection was
substantially justified, 3) sanction award would be unjust.
If a party refuses to comply (even after order to compel) the ct may award sanctions (deem facts established, exclude ev, strike
pleadings, dismiss action) or hold the person in contempt.
What if lawyer for other side has made an entry of appearance - you have to give other side notice and a hearing will be held. At
hearing D can‟t object and say they shouldn‟t‟ be held liable. Can ask for default to be set aside - must show good cause (ct has a lot
of discretion)
What if entry of default and final default judgment have been entered against you. It can be set aside if you make a post trial motion
with trial judge (60b) - must show good cause and excusable neglect
Ct looks at whether D‟s failure to answer was intentional
Can‟t get a default judgment for an amount greater than what you asked for in compliant, must also be same type of relief you asked
for in complaint.
Rule 41 - Dismissal of Actions
(b) Involuntary dismissal - appropriate when P doesn‟t fulfill his obligations - usually with prejudice unless ct say otherwise
Voluntary Dismissal
A case is voluntarily dismissed if the decides that his case isn‟t worthwhile
A voluntary dismissal must be signed by all parties (if Δ won‟t sign, Π can move ct for dismissal)
Π can voluntarily dismiss his suit only one time. Rule 41(a)
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Δ can seek action of costs if Π voluntarily dismisses suit six months into trial and then files the same suit in another court. Rule 41
Can you voluntarily dismiss your case to try to get a better judge when you re-file? Yes, if other side hasn’t answered or hasn’t filed a
motion for summary judgment you can dismiss and it will be without prejudice.
What if judge thinks you are judge shopping? If it’s the second time case was filed judge can order P to pay D for costs incurred
when case was filed the first time (fed or state ct)
What if D has filed a motion for summary judgment or answered? You can enter a joint motion stipulating to dismissal. If parties
settle then it’s without prejudice. If no settlement it’s without prejudice. If other side refuses to agree to dismiss you can file a motion
with the court. Ct has wide discretion regarding whether to dismiss complaint.
If D has a counterclaim pending the action shall not be dismissed against the D‟s objection unless the counterclaim can remain
pending for independent adjudication by the court.
Rule 55
1. Entry of Default Judgment - Clerk shall enter default when it is shown that Δ has failed to plead or otherwise defend.
a. If the Δ failed to appear, and was NOT an infant or incompetent; the clerk will enter default.
2. If the amount requested is not in controversy the clerk themselves can enter the judgment, otherwise it goes to the judge/court.
a. If the “Sum Certain” is not clear the judge will use the relevant facts to arrive at the judgment amount.
3. Default can be set aside if there is a showing of good cause:
a. Was default willful?
b. Did defaulting party act promptly to set default aside?
c. Is there a meritorious defense?
d. Will Π be prejudiced if default is set aside?
e. Did default result from good faith mistake about procedure?
f. Are there alternative sanctions available?
g. Will default produce harsh or unfair result?
Rule 68 - Offer of Judgment
Only D can make an offer of judgment
Settle case for a certain sum
D can make an offer at any time more than 10 days before trial begins
P has 10 days to respond - must accept offer in writing
If judgment is less than the offer that was rejected, even though P won, P has to pay costs incurred by D after offer was made.
Ex. judgment was $40k and offer was $50k (Π has to pay costs incurred after offer was made [not attny fees])
Costs could include attorney‟s fees if govt statute say so Ex. employment cases, civil rights cases but attorney‟s fees are not
usually included as costs
Offer of 60k includes 10k for attorney fees so really the offer is 50K. If the judgment is 55K it could be argued that is really
more than what was offered.
Settlement (Local Rules 16.1)
Settlement conference with magistrate judge.
Lead counsel must attend unless approved.
No statements are admissible at trial.
Parties are to submit confidential information to the judge so he can weigh strength of case.
Judges will work between the two parties as mediator to help get it settled.
Alternative Dispute Resolution (ADR)
Each district ct shall by local rule authorize and allow ADR.
There are several types of ADR
- Binding Arbitration
- Mediation (non-binding)[Local Rule 83.7)
- Mini-trials (jury gets to ask question and render non-binding verdict)
Cts can order mediation (lead counsel must attend unless excused in advance)
If parties can‟t decide on one, ct will appoint one.
Communication during mediation are confidential and can‟t be used elsewhere
Payment is to be shared equally by all parties (but deals can be worked out).
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Rule 56 - Summary Judgment
Any party can move for summary judgment.
Its the primary way cases are decided without a trial (except settlement).
P can move for summary judgment after 20 days, so really at any time (except beyond deadline in case management order).
Cts frown on any sum judgment filed too early.
(f) - when affidavits are unavailable - Should it appear from the affidavits of a party opposing the motion that the party cannot
for reasons stated present by affidavit facts essential to justify the party‟s opposition, the ct may refuse the application for
judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may
make such other order as is just.
Judge will consider the following when ruling on summary judgment
1. Affidavits which must be based on personal knowledge.
2. Depositions
3. Admissions
4. Documents (attached to affidavits or depositions)
When should the court grant summary judgment?
1. When there‟s no genuine issue of material fact
2. That moving party is entitled to judgment as a matter of law
Standard the Ct. uses for Summary Judgment:
If no genuine issue of material fact then moving party is entitled to judgment as matter of law.
• Scintila of evidence is not enough.
Ct. should not weigh evidence, find facts or make credibility determinations.
Ct. should review evidence in light most favorable to non-moving party.
There is a genuine dispute of material fact when a reasonable jury could find for the non-moving party.
Trial court must use the appropriate legal standard [as stated in the question] that reasonable jury could have found for non-
moving party.
If trial court‟s summary judgment is appealed, the ct. app. will use de novo standard of review.
Material fact - critical to one of the elements/defense such that it could affect the case.
How much evidence do you need to show genuine issue of material fact?
Either side can mover for sum judgment (easier for D - rare that P wins on SJ)
You might want to submit documents ex. deposition in addition to affidavits.
Documents must meet the rules of evidence
Requiring Δ to disprove Π allegations for sj would defeat purpose of SJ - to dispose of claims for which there is inadequate evidence
What‟s the difference between motion to dismiss for failure to state a claim (12b6) and SJ?
• 12b6 looks at sufficiency of pleadings and SJ looks at sufficiency of evidence.
• Both are legal motions that are reviewed de novo.
Daubert motion challenging expert and asking to exclude testimony and sj motion have same deadline.
• If you get rid of the expert you can win sj.
Is denial of motion for summary judgment appealable?
• Not before trial because it‟s an interlocutory order and can only appeal a final order.
• After trial if you lost, you just appeal for ct failing to grant a directed verdict.
• You can go through an interlocutory appeal but that is dangerous and pisses the judge off.
• Ct of appeals reviews motion for summary judgment de novo because it‟s a legal issue.
Summary Judgment motions: Reason why D wouldn‟t file even if he thinks he has a good chance?
Fear that Π will give Δ information they can prep for or turn if sum judgment isn‟t granted.
If it‟s pure legal issue, both sides can stipulate to the facts and file for summary judgment and let judge decide legal issue.
Partial Summary Judgment can be use for:
1. Liability
2. Punitive Damages
3. Single claim or defense
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Required Pretrial Disclosure (Rule 26a3)
At least 30 days before trial, each party must disclose to others and filed:
Identify of will call, and may call witnesses (fact/expert; liability/damages)
Identify documents and other exhibits
Identify depositions (pertinent portions)
Parties have 14 days to object to depositions and/or exhibits (otherwise, objections are waived).
Rule 16 - Day of final pretrial conference:
10 days before pretrial conf any Motions in Limine must be filed (written motion - a new local rule)
Motion in Limine is a motion to occur for court to exclude testimony b/c of an evidentiary rule. If you just learned of
evidence may be able to file motion in limine later.
Final pretrial conf doesn‟t have to be held if court doesn‟t think it‟s necessary.
have a completed pretrial order with you when you go to pretrial conference.
Exchange draft with other side before conference.
Lead atty usually attends pretrial conference (atty who can make admissions and appear at trial)
Pretrial order controls the litigation, no amendments can be made unless manifest injustice would result
Before you include an admission make sure it‟s what you want, might be more effective to have a live witness testify to it.
Good faith obligation to admit in pretrial order
Parties usually agree to exchange copies of exhibits when they exchange pretrial orders
Must make any objections to authenticity or admissibility of exhibits on pretrial order or you waive your right to do so.
This is so other side will have notice of objections and will have necessary witnesses at trial. Exhibits used in opening/closing only
should be listed.
Witnesses: must list as will call or may call
Specify if someone will testify by depo, by you reading depo, or showing video. List lines on depo you will introduce. video will
have to be edited if objections were sustained by ct.
Magistrate often uses pretrial conf as a last change to settle.
Local rules say judge trying case should attempt to preside over pretrial conference instead of magistrate but Percy says this doesn‟t
happen in ND of MS.
Look at Local rule 16.2 and Form Pretrial Order at end of Local Rules
Pretrial order is signed by magistrate and trial judge and governs the litigation from that point on.
Most discovery issues are resolved by final pretrial conference.
Rule 42 - allows judge to bifurcate issues like the judge did in a civil action.
In MS punitive damages are bifurcated.
Settlements and Mediation:
Reasons to consider settlement -
1. settle before complaint is filed to avoid a public record of case
2. avoid publicity
3. verdict against a corp may do more damage than a settlement
4. avoid cost of litigation
Some corps won‟t settle bc it will encourage others to sue. Ex. Wal-mart
Settlement agreements are often confidential
Partial settlements with a big company might be good so you can finance the rest of your case. Find out what effect settlement will
have on the rest of your trial. Ex. MS - fault can be allocated to settling parties
Types of Mediation - From in class speaker
2 types:
1. Voluntary
a. Determine terms in writing
1. Mediator
2. Payment (who pays? usually both sides pay equally)
3. Place of mediation (very important); and
4. Who will attend ( always want someone there who has the authority to settle rather than having that
person on the phone)
2. Court ordered
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a. State Court
1. Court Annexed Mediation Rules for Civil Litigation
a. Some circuit courts require mediation
b. Federal Court
1. Settlement conference - *Rule 16.1 Local Rules*
a. with a U.S. magistrate
2. *Rule 83.7 Local Rules*
a. by a ct approved “neutral”
Reasons to mediate:
1. money driven
2. can find out additional info
3. helps your client understand the situation - educate your client on value of case
4. it‟s non-binding - you don‟t have to agree to anything
Preferably there should always be a demand (a number) on the table at the beginning so both sides know what the other is seeking.
Arbitration: different from mediation bc it is binding. You often entered into an agreement to arbitrate even before your claim arose
(maybe it was in contract). You can also agree to arbitrate once the dispute arises.
Mediation: once you‟ve come to an agreement get mediator to draft an agreement with the basic terms so you‟ll have it in writing.
Later attorneys can draft a longer settlement agreement. Partial settlements are also possible.
High-low settlement agreement - parties agree to what the highest and lowest amounts will be. Provides some certainty for both sides
and avoids cost of an appeal.
Joint stipulation of dismissal - make sure it says fed ct retains juris over settlement agreement to enforce it.
JURY TRIALS
Jury Selection & 7th Amendment Right to Jury Trial
Trying your case:
Is there any way to get rid of the judge you were assigned?
File a Motion to Recuse (ex. judge has a financial interest, opposing atty was judge‟s former clerk)
Before filing motion to recuse, consider whether it will upset judge (especially if motion isn‟t granted).
How do you know if you are entitled to a jury trial?
7th A only says right to a jury trial shall be preserved.
Rule 38 also says right to a jury trial shall be preserved.
You must reserve the right to a jury trial in your complaint.
1791 - 7th A was ratified, if you had a right to a jury trial in 1791 (for your type of issue) (equitable=no jury/legal remedy=jury)
then you have a right to a jury trial today.
• Most of the time injunctive relief = equitable = no jury (but not always)
• Most of the time money relief = legal = jury (but not always)
What do you do if your type of claim didn‟t exist in 1791? (Chauffers, Teamsters and Helpers cases)
To determine whether you get a jury trial, the court:
1. looks for the most similar claim that existed in 1791.
2. look at character of remedy equitable relief v. money.
• 2nd prong of this test is more important to the court
What about the clause in the 7th amendment that says no fact tried by a jury should be otherwise re-examined except according to the
laws of common law?
Some states/courts say that caps violate this 7th Amend. right.
There are also questions regarding whether additurs/remittiturs are constitutional.
How do you waive your right to a jury trial?
If you don’t assert it in writing according to Rule 38 it’s waived.
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Does 7th A apply if trying a federal claim in state court?
No, 7th A only applies in fed ct.
There might be something in state constitution regarding right to a jury trial or state might have a statute.
Rule 39
What if your case is an equitable case, can you try case before a jury?
Rule 39 says you can consent with other side to have a jury or the judge can impanel an advisory jury
MS - chancery ct - no jury
circuit court - entitled to a jury
Rule 48 (Number of Jurors)
• At least 6, no more than 12 jurors
• All participate in the verdict
• Must have unanimous verdict unless otherwise stipulated
• Jury must consist of at least 6 jurors when the verdict is rendered
How does ct pick panel of jurors?
Selected at random from a fair cross-section of community.
Can use voter registration lists or lists of actual voters.
Is there a way to challenge the way panel is selected?
Yes
Consider whether you want a larger pool of jurors than what ct has stated.
To be a juror you must be a citizen, at least 18 years old, not a felon, can read/write.
Must be able to speak English, can‟t be a habitual drunk or common gambler, citizen of county.
Can be excluded if over 65 and you ask to be.
Rule 47 Voir Dire
State ct method of voir dire - attorneys ask questions themselves
Federal method - (Attorneys or Judge can ask questions) Attorneys can also submit questions to judge and he asks them
Attorneys conduct voir dire:
-excuse for cause
-peremptory challenges
-judge may also excuse jurors for cause and atty can make an objection on record if he disagrees with judge
-how many jurors do you get in federal court - at least 6, can be more, can treat extra jurors as alternates but all jurors who
remain at end decide case
-MS state court - 12 jurors, 9 have to agree
How many peremptory strikes do you get? 3, judge can allow more
MS - can get list of jury 2 weeks ahead of time and find out about potential jurors by asking around.
Attys can use a mock jury to prepare for trial.
Can you stipulate to have a non-unanimous jury? Ex. 10 of 12 jurors in agreement
Hard to overturn a verdict based on voir dire
Why does judge conduct voir dire in most fed cts?
Keeps attorneys from trying their cases, judge‟s questions will be less biased, judge is more efficient.
Peremptory Strikes
Peremptory strikes can be used for almost any reason.
There are Constitutional Limitations for Peremptory Strikes:
Can‟t strike for race (Edmonson case - for civil cases)
Can‟t strike minority panel members w/o non-racial justification (Batson case - criminal case)
Can‟t strike based on gender (J.E.B.)
Picking juries is a state function. It is a State action because the source is a federal statute.
The right belongs to the juror - not the P - juror has an equal protection right to participate in jury trials.
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P must show 3 things to assert a right of another (P asserting right of juror):
1. show litigant has suffered a concrete injury
2. close relationship
3. unlikely that juror will assert his own right or will be hindered
Considerations for Juror Elimination:
A pattern has to be established before court will say Edmonson is violated.
Lawyer who eliminated a minority can give another race-neutral explanation for why the juror was eliminated.
Gender - case in AL - US sup ct said gender can‟t be the reason a peremptory strike is used if the state is involved
What if juror realized half way through trial that he does know a critical witness that testified for defense?
P can ask for a mistrial or let it go forward.
Ct can excuse a juror but they must show cause.
Once jury is picked jurors are sworn in and given instructions.
Can jurors take jury instructions with them?
Sometimes judge will allow it.
They didn’t take them in a Civil Action because lawyers didn’t want them to get bogged down in instructions.
What if jury is deadlocked?
Judge can give an Allen charge and ask jury to go back
Can you talk to jurors after the trial is over?
Yes, ask for court’s permission, good to do to find out what juries think
If you suspect jury misconduct, tell judge and he can conduct inquiry.
VII. Trial
Opening statement - P goes, D goes
Federal - cross exam is limited to scope of direct
State - cross exam isn‟t limited to scope of direct
Closing
Jury instructions
Rule 50 - Motion for Judgment as a Matter of Law
(Directed verdict) - D usually moves for this because P bears burden of proof. Can raise motion as soon as P finished their case.
If granted - ct enters a judgment
If motion is denied D goes forward
D can make motion again after he goes (at end of all evidence) and should do it again if you want to bring it up post judgment (to
preserve for appeal)
Rule 50 - standard - trial judge should grant motion if there‟s no legally sufficient evidentiary basis for a reasonable jury to find
for that party on that issue (same standard as Summary Judgment)
Jury not judge is supposed to make credibility decisions. Judge might do so in an extreme case.
Rule 50 - make this motion by requesting it orally
2 types of motions for judgment as a matter of law
1. law doesn‟t recognize claim - legal
2. evidence is insufficient
How does the judge come up with jury instructions?
Local rules - attorneys for each side must file proposed instructions 10 days before trial
no time period under federal rules
Lawyers use model jury instructions and/or case law
Jury instruction conference - judge has proposed instructions from both sides and goes through all of them to come up with one
set - objections should be made on the record.
Rule 49 - Judge has total discretion
1. 49a - jury can return a special verdict rather than a general verdict. Special verdict in the form of a special written finding
upon each issue of fact. Ct submits written questions for the jury to answer. If in do doing the court omits any issue of fact
raised by the pleadings or by the evidence, each party waives the right to a trial by jury of the issue so omitted unless before
the jury retires the party demands its submission to the jury.
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2. 49b - alternatively ct can also get jury to issue a general verdict and answer interrogatories. If answers are inconsistent with
verdict judge can ignore general verdict and enter judgment based on the answers or judge may return jury for further
consideration of its answers and verdict.
Rule 54b - judgment involving multiple parties
Beatrice should move for ct to certify it as a final judgment (dismissing it)
Beatrice must show there‟s no just cause for delay of entering motion
When would P want to move for entry of a final Rule 49 judgment against one D?
So you can appeal it - avoid trying it twice
Schlictman argues against special interrogatories bc it‟s compound/confusing
You have to object in conference to any special interrogatories.
Standard of review - whether trial ct properly submitted special interrogatories
Can the judge make a finding of fact? Yes, Rule 49, if judge erred - standard of review is clearly erroneous
Rule 59 - Motion for New Trial -
Must file within 10 days after entry of judgment - no extension can be given at all by trial judge.
Post Trial Motion for Judgment as a Matter of Law also has to be filed within 10 days (no exceptions)
Rule 59 - Common grounds for new trial motion:
1. Jury misconduct - prove with affidavits (improper influence - if you saw juror at site or if you saw a payoff)
(compromised verdict Ex. let‟s just get this over with and vote w/out discussing - judges are hesitant to get into why
they decided the way they did)
2. Error in admitting evidence
3. Error in excluding evidence
(for 2 and 3 evidence must have been material/prejudicial)
4. Improper jury instructions
5. Verdict against Great Weight of Evidence
a. This is different from JML (which says no reasonable jury could have held it)
b. This acknowledges that there is evidence that you are guilty.
c. When you use this the trial judge is now able to be a fact finder.
6. Verdict is Excessive or Inadequate
a. In Fed ct., you can‟t ask for more money.
7. Newly Discovered Evidence
8. Improper Conduct by Counsel or the Court
a. Prejudicial comments made by lawyers or judge.
9. Improper Conduct Affecting Jury
**These errors must have been prejudicial or else they are harmless (rule 61).
Standard of review is abuse of discretion.
Mansfield rule - can‟t in most states use jury affidavits to prove a compromised verdict
Grounds for new trial that allows judge to go back and look at evidence: If verdict is against great weight of evidence.
This doesn‟t violate re-examination clause because:
1. They did it at clause and
2. They‟re getting another trial
For JML(judgment as a matter of law) the standard of review is de novo.
If D thinks huge verdict is excessive and a result of bias, passion, and prejudice ask court to reduce amount (remittitur)
Remittitur raises argument that your 7th A right to jury trial has been violated bc judge is changing verdict.
Fed cts say remit. is ok bc it existed in 1791 and if judge lowers it to an amount that was within jury‟s consideration
Trial ct decides amount to lower it to by giving highest amt a reasonable jury could have awarded. Ct looks at factually similar cases
also and multiplies amounts by a quotient.
P can reject/accept remittitur but if you refuse trial ct orders a new trial and you can‟t appeal it right away.
What if jury returns a low verdict? Can’t ask for an additur in fed ct. Why? Historically, cts didn‟t do this in 1791 and it falls outside
permissible re-examination
P can seek a new trial based on errors if P thinks verdict was too low.
**If the trial judge acts as a fact finder the court of appeals would use a “Clearly Erroneous” standard.
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Rule 59(e) - Motion to Alter the Judgment
1. When judgment doesn‟t reflect relief which the court found a party entitled to.
2. When the law has changed.
3. When a party seeks a post-judgment award of pre-judgment interest.
Is there any way to challenge a judgment after time has passed to file motion for JML?
Rule 60 - Six listed grounds for relief
1. Mistake, Inadvertance, Surprise, or Excusable Neglect
2. Newly discovered evidence - Ex. Yankee report - new evidence must change result
a. The new evidence has to be something that you could have found and used at the time (not new report ten years later)
b. New evidence must also prove that it would have produced a different result at trial if admitted.
c. Moving party must show they used due diligence to find this information.
3. Fraud, misrep, or other conduct (ex. failure to disclose during discovery)
a. Must show that you were prevented from fully and fairly presenting your case.
b. Conduct must be proven by clear/convincing evidence & time limit - not more than a year and within a reasonable
time (ex. close to when you get the evidence)
4. Void Judgment
5. Change in Circumstances
6. Interests in Justice (any other reason justifying relief)
7. Clerical Mistakes (e.g. entered wrong amount for damages, Rule 60(a))
Post-Trial Motions for JML (Judgment as Matter of Law, new term for JNOV) and New Trial
1. Party which moved for JML at close of evidence can renew motion within 10 days of entry of the judgment.
2. To compute time, look to computation of time (Rule 6).
3. A party may move for a new trial within 10 days of the entry of judgment
4. Court may not extend the 10 day period for these motions
5. A party may file both of these motions in the alternative. If the trial court grants the motion for JML, the ct. should also
issue a conditional ruling on the motion for a new trial.
Post-trial motions and Appeal Time
• 30 days from final judgment to appeal
• 10 days from final judgment for motion
If you file motion, your time is tolled and 30 days doesn‟t start to run until judge rules on motion
State Ct - formerly failure of clerk to mail you a copy of final judgment didn‟t excuse you from meeting 10 day deadline - you now
can get an extension if this happens.
Remember you can only appeal from a final judgment.
Rule 62 -- Stay
After judgment is entered, there is an automatic stay of judgment for 10 days while you make your motions.
Ct. can stay the execution longer while the motions are being adjudicated.
Ct. may demand loser have to put up a bond (amount of judgment plus interest) while appeal is being heard.
If you win, and it has cost you money to put up the bond, you can make other party pay costs.
F.R.A.P. 4
In civil cases, notice of appeal must be filed in district court within 30 days after the judgment.
• May file cross-appeal within 14 days of notice of the appeal.
• If you file a timely appeal (Rule 60) within 10 days, the 30 day period is tolled until entry of the order disposing of such motions.
• You can file a motion for extension of time to appeal (must demonstrate excusable neglect which must be filed in 30 period of
original period).
• District Court can reopen the time to appeal for 14 days if motion to reopen within 180 days of judgment if for some reason you
don‟t get the appropriate final judgment for some reason.
F.R.A.P. 3
If you are appealing for final judgment and any other orders you can argue it here.
• Must pay $150 filling fee.
• Must designate party taking appeal, judgment or order appeal is taken from and court to which appeal is made.
• May be required to put up a supercedeous bond while your appeal is in play.
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X. Effect of Judgment
What effect does judgment in case have?
A. Claim Preclusion
B. Issue Preclusion
Claim preclusion -
• Have to have a final judgment on merits for claim preclusion to apply the concern is judicial efficiency.
• Dismissals based on jurisdiction don‟t count.
• Involuntary dismissals are with prejudice.
• If dismissed without prejudice its not a final judgment on the merits.
** This is an AFFIRMATIVE DEFENSE and Δ must raise it in answer or else they lose it. (FRCP 8(c))
Four Prerequisites for Res Judicata:
1. There must be a final judgment
2. The judgment must be on the merits of the case
3. Claims must be the same in the first and second suits (Majority uses the “Same Transaction” test to determine)
4. Parties in the second action must be the same as those in the first suit.
Frier Case
is the 2nd claim barred by the 1st suit? you have to look at state rule. First claim was for repliven, then later a due process claim.
Rule for claim preclusion:
1. Found = same parties
2. Found = same claim - used evidence test - would same evidence be introduced to support both claims
3. Ct doesn‟t look at merits of claim - just at whether Π could have brought claim in 1st case, if he could, that‟s the end of it.
Policy Argument:
• The goal of this is to force Πs to consolidate closely related claims and bring them all at once.
• Fewer trials by forcing more issues into the first trial (if same occurrence/transaction at issue).
• Will help with judicial economy and save Δs money and not allow multiple trials.
• If 1st case is in one state, second in another, that second must use first state forum to govern their decision.
• If 1st case in state ct, 2nd in Fed ct., Full Faith requires law of 1st state be used.
• If 1st case resolved in Fed ct., based on diversity, then federal common law says 2nd court must apply original forum state law.
Even though two claims may not be supported by the same evidence most state say you can‟t split your claims. Ex. design defect and
manufacturing defect.
• Full Faith and Credit Clause says if one court precludes claim, other courts will too. (Same with federal and state courts)
Claim Splitting:
• You can NOT split personal injury & property damage claims. (only a very small # of places go the other way)
• You can NOT split different theories (negligence, products liability, breach of warranty).
• You can NOT split for different remedies (damages, injunction). (although sometimes you have to based on time)
Haynes v. Lemann:
Sues for defamation, invasion of privacy, breach of oral k, and quantum meruit.
SOL was up on all claims and summary judgment was granted - a final judgment.
Π files another case against same people plus others & Π brought same claims plus misappropriation and copyright claims.
1st 4 claims that had been previously brought - claim preclusion applies because same claims and same parties.
D raises claim preclusion by using Rule 8 - an affirmative defense that should be put in answer by filing motion w/ attachment that
showed 1st decision.
Π‟s 2 new claims under transaction test fail bc they arise out of the same nucleus of facts - same claims and same parties
Claim preclusion examples
1st suit P ----------------- sues employer ------------employer makes a 3rd party claim (Rule 14) against employee for indemnification and
jury returns a verdict
2nd suit Can employer sue employee for damages to company truck?
Same transaction/occurrence test - yes, arises out of same trans/occur
Go back and look at 1st case - could employer have brought the claim in the 1 st case? Yes, Rule 18 (can bring any claim)
claim would be precluded under federal transactional test
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P -----sues D
2 car wreck - p wins for personal injury
2nd suit - what if D now brings a claim against P for damage to his car.
This isn‟t claim preclusion because:
1. Meets same parties test
2. It is not precluded b/c different claim, but should have brought it in first case and didn‟t (waived under Rule 13)
Issue preclusion:
1. Identical issue was already before the court
2. Issue must have been actually litigated and determined
3. Necessarily been decided in a final judgment.
Criminal convictions CAN give rise to issue preclusion in civil cases if it‟s the same issue. Summary judgment could be granted.
But OJ can NOTt assert issue preclusion in a civil case because he was acquitted in a criminal case.
• Burden of proof is less in civil case and could be met even though standard wasn‟t met in criminal case.
If a default judgment - most courts say that it‟s not litigated and determined so default judgment can‟t give rise to issue preclusion.
What about general verdicts?
Example: 3 issues in a case - you can’t look at general verdict and know exactly what jury determined. Good reason for D to ask
judge to give jury special interrogatories.
State court uses a narrower test for claim preclusion - get notes on this
Why use issue preclusion? efficiency, furthers consistency
You CAN use issue preclusion (defensive) against Π even someone Δ wasn‟t a party in the first case, NOT against different Πs?
Restatement says alternative grounds should never give rise to issue preclusion.
• Hard to argue that either was necessary.
• Some states say otherwise.
If the court gives a decision in dicta (makes a decision on an issue that really doesn‟t affect outcome) does it give rise to issue
preclusion? No.
Blonder-Tongue case -
P ----sues D alleging patent infringement
Ct finds for D bc P doesn‟t have a valid patent.
P sues another D - validity of patent was decided in first case. Can D use issue preclusion? Yes.
• Mutuality requirement is where both parties were in 1 st case. It‟s ok if just one of the parties was in the first case.
• Defensive issue preclusion - asserted by D. Ct has no problem with defensive non-mutual issue preclusion.
Non-mutual offensive issue preclusion Concerns:
1. Offensive issue preclusion gives an incentive to P‟s to wait and see and increases amount of litigation (opposite effect that we
want - not efficient). Defensive encourages all suits to be brought together.
2. Offensive - concerned if in first case D lost but didn’t have a strong incentive to fully litigate. Ex. not much money at stake
and all the other P‟s get to use that verdict. Ex. P suing RR for only $50K
3. Also concerned about offensive preclusion where there are inconsistent determinations of the issue. P sues RR and wins,
another P sues RR and loses
4. Procedural differences - fed/state
Trial Judge has Discretion to preclude or note based on:
1. Did Π wait and see?
2. Did Δ have incentive to vigorously defend 1st case?
3. Will case later afford Δ procedural opportunities not available in the 1st case?
4. Are there multiple previous cases which are inconsistent?
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