Civil Procedure - Outline by 74m5iQ


									Civil Procedure – Outline
ORCP: focus on rule 4 – OR's attempt to establish a long-arm statute.

Ways to look at rules (no one is allowed to violate these rules):
      1. from pov of both parties in lawsuit
      2. from pov of the lawyers for the parties
      3. from pov of the court system itself (court must be able to operate rules efficiently)
      4. from pov of society in general (is justice being done)
              a) rules must by constitutionally valid (US Constitution always trumps Rules;
              Oregon Constitution always trumps State Rules)
              b) nearly all due process rules ensure that the involuntary party in court, the
              defendant, has due process (rules always about fairness)

Trial components and rules:
        Erie v. Tompkins
        Pleadings [R8, 9, 15]
        joinder [13, 14, 18, 20, 21]
                 After determining joinder, subject matter jurisdiction must be determined
                 (see FRCP chapter 28 § 1367 on supplemental jurisdiction)
        discovery [26-37]
        pre-trial adjudication [12, 16, 56]
        trial [50-59]
        res judicata – claims preclusion
        collateral estoppel – issue preclusion

I. Jurisdiction
         A. power to enforce within a geographical boundary against a person and his property.
                i. People give power to Constitution, Constitution grants power to legislature,
                legislature then gives power to courts.
         B. Personal (in personam) jurisdiction
         C. Subject matter jurisdiction                       never confuse 1 and 2
         D. Venue

II. Personal jurisdiction
        A. How can the forum state gain jurisdiction over the NRD (non-resident, non-consenting
                1. Pennoyer v. Neff sets up doctrine of territorial power based on analogous int'l
                law provisions of the time.
                        a. Pennoyer v. Neff (1877): although Neff sought a collateral attack on a
                        judgment in OR that stripped him of his land by claiming, in federal dist
                        court, that an affidavit taking that land was invalid, US Supreme Court
                        upheld the decision in Neff's favor on different grounds. They stated that,
                        under the 14th Amend, OR had not served Neff with proper notice and
               therefore had not established personal jurisdiction over him. US Supreme
               Court said that to do this, he had to be served with process inside of OR's
               territorial borders [i.e., where the state had power]. This is known as tag
B. After Pennoyer, states increasingly attempted to create legal fictions that would allow
them to establish personal jurisdiction over NRDs.
       1. Minimum contacts so as "not to offend traditional notions of fair play and
       substantial justice."
               a. Established by International Shoe v. Washington (1945)
                        i. its business in Wash was "continuous and systematic"
                        ii. it realized a large volume of interstate business
                        iii. during business in state, it received benefits and protections of
                        state law
                        iv. issue being sued on arose out of these very activities
               b. two prongs for personal jurisdiction now exist
                        i. tag and minimum contacts

C. Modifications/Extensions to minimum contacts
      1. McGee v. International Life Insurance Co. established that so long as a
      company actively maintained even one contract/customer in the forum state, the
      forum state had personal jurisdiction: "it is sufficient for purposes of due process
      that the suit was based on a contract which had substantial connection with that
              a. great case to cite for Ps
              b. Later known as "purposeful availment"
      2. Hanson v. Dencla US Supreme Court held that Florida courts could not
      constitutionally exercise personal jurisdiction over a Delaware trustee that had no
      contacts with the forum state other than that a settlor of a Delaware trust had
      moved to Florida.
              a. great cite for Ds
              b. Del trustee had not "purposefully availed" itself of the rights and
              privileges of Florida protections and law
      3. World Wide Volkswagon v. Woodson reinforces Hanson because court held
      that unless it was foreseeable by D that its product would enter the forum state
      (e.g., OK from NY) it cannot be under personal jurisdiction no matter how
      important the case was to the forum state's interests.
              a. i.e., territorial power guaranteed by the interstate federalism inherent in
              the 14th Amend seems more imp than substantial justice
              b. What matters is the foreseeability of being hauled into court, not
              that product may enter the state.
      4. Asahi Metal Indust v. Superior Court CA Brennan's majority opinion states that
      although Asahi met minimum contacts to be hailed into court in CA, it would not
      be fair as the burden on Asahi would be too great.
              a. O'Conner asserts two-prong test for minimum contacts: put goods into
              stream of commerce PLUS indicate purpose to serve the market in the
              forum state (e.g., marketing in state, designing product for state, etc).
                i. if we meet O'Conner's test, we have personal jurisdiction for sure
5. Gray v. American Radiator & Std. Sanitary Corp shows how to interpret a
long-arm statute: does it grant personal jurisdiction in instant case? and is statute
consistent with 14th Amend?
        a. Court held that as D had sold a valve in another state for ultimate
        consumption in forum state, it had been placed in the stream of commerce.
        Therefore, D benefited from sale in and laws of forum state permitting it
        to conduct business.
6. Keeton v. Hustler Magazine Held D was present in forum state by virtue of 10-
15,000 magazines sold each month.
        a. although P not a citizen of forum state, claim arose from libel in
        b. P can choose any forum and is not bound by minimum contacts with
        forum state.
                i. limited by Due Process
                         a. what is the burden on D of filing in forum state?
                         b. if case dismissed, with P have a forum?
7. Rescue Technology v. Claw an OR case showing several lessons
        a. examine long-arm statute first
        b. ideas/inventions are deemed to reside in the person of the inventor. if
        state does not have personal jurisdiction over inventor, it cannot have
        jurisdiction over idea.
        c. ORCP 4L permits OR to take jurisdiction over any person meeting 14th
        Amend (i.e., minimum contacts meeting fair play and subst justice)
8. Helicopteros de Colombia v. Hall Determined that a state can assert general
jurisdiction over a person/corp in an action not arising within forum state if that
person is generally present.
        a. generally present: continuous and systematic contacts
                i. despite millions of dollars of business done with Texas, court
                ruled that this test was not met
9. Burger King v. Rudzewich Applied minimum contacts and foreseeability test
to a contract. Held: Contract establishes minimum contacts because D
purposefully availed of forum state in order to sign contract.
        a. contract contained choice of law clause
                i. clause is basis for forum selection when combined with
                something else (e.g., purposeful availment)
10. Shaffer v. Heitner Held that doctrines in Intl Shoe and progeny that have
modified exertion of territorial power in personal jurisdiction should apply to
exertion of power in in rem and quasi in rem (i.e., property) cases.
        a. RULE: All assertions of state jurisdiction must meet standards of Shoe
        and progeny
        b. Changes Harris v. Balk where forum state gained control of a debt by
        gaining control over situs of that debt (a person)
                i. Delaware can't gain control over stocks which have situs in
                Delaware by simple territorial power of Pennoyer unless they are
                directly related to case.
               11. Burnham v. Superior Court of CA Held that service of summons on a man
               visting CA for 3 days was valid under Pennoyer. Why? 4-4-1 decision.
                       a. Scalia and friends argue that it is old and traditional and therefore does
                       not need to be changed.
                       b. Brennan and friends argue that, although in this case it was fair, it was
                       fair because Burnham did have minimum contacts with CA. Cases need
                       to be examined based on Intl Shoe and other modern modifications of
                       territorial power doctrine to bring doctrine in line with "contemporary
                       notions of due process."

NB: Asahi and Burnham are both 4-4-1 decisions. Use both to review notion of personal
jurisdiction and arguments for and against various assertions.

After Burnham, would a person flying over OR in a jet and served with service be under
jurisdiction of OR if he had never been in OR before?

III. Notice and the Opportunity to be Heard
        Read FRCP 4 and 5
A. Constitutional Limitations of Notice
        1. 14th Amend: no state shall "deprive any person of life, liberty, or property without due
        process of law."
        2. Service of Process (i.e., summons and copy of complaint)
                -satisfies due process
                -gives court jurisdiction over D
                -provides D w/opportunity to be heard
                         Fuentes provides that "deprivation of property w/o due process of law –
                         that is right to prior opportunity to be heard before chattels are seized (or
                         any property rights abridged, Doehr) – is unconstitutional"
                                  i. in other words, there must be a "prior hearing" (a trial is
                                  unnecessary to meet the req)
                                  ii. exception: if seizure done without aid of state power (e.g.,
                                  sheriff) then notice is not req'd
                a. notice by publication: usually persons missing or unknown
                b. notice by certified mail when addresses are known
        3. Form of Notice
                Mullane – Created guideline of "notice reasonably calculated, under all the
                circumstances, to apprize interested parties of the pendency of the action and
                afford them an opportunity to present their objections."
        4. Service of Summons:             FRCP 4: process for service
                                           FRCP 5: service of pleadings and papers
                                           FRCP 45: service of subpoena
                a. Summons
                         Rule 4(a), 4(c).
                         R12(b)4: D may file motion to dismiss because of insufficiency of
               b. Waiver of Service, Notice by Mail
                       Rule 4(d)
               c. Service upon Specific Individuals and Entities
                       Rules 4(e)-4(i), 4(k) and 4(l)
                               1. Rule 4(e)(2): exceptions to personal service
                               2. serving corporations
       5. Service of Summons and the Statute of Limitations
               a. For SOL purposes, action is commenced (1) when the complaint is filed
               or (2) when the D is served with summons.
               b. Summons defective in form may be quashed
               c. Sewer Service
       6. Mechanics of Giving Notice
               a. Service on an Agent
                       National Equipment Rental, Ltd v. Szukhent, 375 US 311 (1964):
                       Held that a contractual clause is sufficient to appoint an agent [within
                       meaning of R4(e)(2)]for service within a state in which one party to the
                       contract does not reside so long as agent gives "prompt notice" of service
                       to Ds. Dissent: J. Black argues that since service was declared insufficient
                       under the laws of the forum state, then the US Supreme Court should not
                       overrule those state laws. Moreover, decision will give green light to large
                       companies to include such clauses as boilerplate language, which in the
                       end will make justice unfair for individual Ds with meager resources. J.
                       Brennan argues that a clause can have this force, but only if there is a clear
                       way to ensure that a D has read and understood the implications of this
                       clause (e.g., informed consent).
                       [cf. choice of law clause in Burger King]
               b. Opportunity to be Heard
                       READ FRCP 64 and 65
                       i. injunctions – three types
                               a. temporary restraining orders (TRO)
                                        1. preserves status quo until hearing can be had on
                                        preliminary injunctions
                                        2. prelim injunc preserves status quo until there can be a
                                        trial on the merits
                                        3. TRO ex parte FRCP 65(b)
                               b. preliminary injunctions
                               c. permanent injunctions
                               d. notice for all of these hearing required to be given to D
                       ii. Special Remedies

IV. Jurisdiction over SUBJECT MATTER
        A. subject matter jurisdiction comes from Constitution Art III, §2
                1. Federal questions, 28 USC §1331
                       i. state courts can also hear federal question cases
                                a. to protect integrity of decision, holding may be reviewed by
                                federal court
       2. Diversity jurisdiction
B. Motions challenging subject matter jurisdiction
       1. FRCP 4, 7, 8(a)1, 12(b)1, 12(h)3, and 60(b)4; Official form 2; 28 USC §1653
C. Subject Matter Jurisdiction of Federal Courts – Supplemental Parties and Claims
       1. 28 USC §1367
               a. Gibbs gives federal court supplemental jurisdiction over all claims
               arising out of a common nucleus of operative fact so long as at least one of
               the claims is either a federal question
               b. supplemental jurisdiction in diversity is also permitted if Gibbs is met,
               though there are many exceptions:
                        i. 3rd-party Ds (Rule 14)
                        ii. compulsory joinder (Rule 19)
                        iii. permissive joinder (Rule 20)
                        iv. intervention (Rule 24)
       2. court always retains the discretion to reject joinder of claims based only on
       supplemental jurisdiction; 1367 (c)
D. Diversity of Citizenship Jurisdiction
policy: protect out of state litigants from local prejudices in state courts
       1. 28 USC §1332
       2. How do we define citizenship?
               a. domicile: "true, fixed, and permanent home and principal
               establishment, and to which he has the intention of returning whenever he
               is absent therefrom" (Mas v Perry)
                        i. change of domicile affected by
                                 1. taking up residence in a different domicile with
                                 2. the intention to remain there
               b. corporate domicile
                        i. for a corporation, it is deemed to be domiciled in the state where
                                 1. it is incorporated and
                                 2. the state that is its principal place of business
                                           a. either its headquarters or
                                           b. main location of production/service
               b. must be complete diversity
                        i. that is, no P can be a citizen of the same state as any D
       3. Amount in controversy.
               a. $75,000 (met to a legal certainty)
               b. Refusing a case for failing to meet dollar amount requires a legal
               certainty that the amount will not be met.
       4. See Tornquist text p. 155 for chart.
E. Removal and Remand
       1. FRCP 81(c) and 28 USC §§1441-1452
       2. Removal: procedure whereby a D can transfer a case from state court to federal
                      a. general rule: any case that could have been filed in federal court can be
                      removed to federal court
               3. Remand: P tries to get case returned to state court after removal.
                      a. Reasons to remand:
                               i. if no subject matter jurisdiction, remand in mandatory
                               ii. lack of diversity jurisdiction
               4. Courts strictly construe statutes in favor of remand and against removal.

V. Venue, Transfer and Forum Non Conveniens
      A. Venue – determined by rules of procedure; assumes proper jurisdiction
              1. convenient to both parties
                       a. appropriate venue determined by location of parties at time of filing of
                       the complaint
              2. bears a reasonable relationship to the case
              3. a fair trial can be had in said venue
              4. convenience and permissibility governed by 28 USC §1406
                       a. motion to transfer venue can be made under 28 USC §1404(a)
                                i. ease of securing witnesses
                                ii. ease of access to sources of proof
                                iii. forum selection clause
                                iv. inconvenience to opposing counsel
                                v. inconvenience to D
                                vi. inconvenience to D's witnesses
                       b. "a transfer [of venue] pursuant to §1404(a) does not carry with it a
                       change in the applicable law"
                       c. venue can be transferred to a district where the motion might have been
              5. Improper venue may be waived
                       a. FRCP 12(b)3, 12(h)1
                       b. objection to improper venue must be promptly asserted or else it is
                       waived, FRCP 12(h)1
                                i. burden to challenge venue is on D
                                ii. A court will not question venue on its own (i.e., no sua sponte)
              6. Types of actions
                       a. Local actions
                                i. if action is regarding real property, then typically the correct
                                venue is the county in which the property is located
                       b. Transitory Actions
                                i. an action that could have taken place anywhere (e.g., traffic
                                          1. hold in county where D resides
                                          2. place where cause of action arose
                                          3. where P resides
              7. Venue in the Federal Courts
                       a. 28 USC §1391 – diversity jurisdiction venues
                               i. in the judicial dist where any D resides, if all D's reside in the
                               same state
                               ii. judicial dist in which a substantial part of the events or
                               omissions giving rise to claim accrued as a substantial part of the
                               property that is the subject of the action is situated
                               iii. judicial dist in which any D is subject to personal jurisdiction at
                               the time of the action is there is no dist in which the action may
                               otherwise be brought
                       b. Exceptions
                               i. actions removed to federal court need not satisfy venue reqs
                               because D has waived objection; D may still move to transfer
                               venue under §1404
                               ii. venue reqs don't apply to supplementary jurisdiction so long as
                               anchor claim has valid venue.
                       c. Forum non conveniens [review Piper v. Reyno for exam]
                               i. This motion to dismiss made in one of two circumstances
                                        1. foreign country has jurisdiction over the dispute
                                        2. foreign country is a more appropriate forum than a US
                                        court for resolving the dispute
                               ii. burden is on the D; courts "will give great deference to P's
                               selection of forum"
                                        1. must show there exists an alternative foreign jurisdiction
                                        to decide the dispute
                                        2. the public and private interest factors weigh in favor of
                                                 a. will P still have a forum
                                                 b. will D be unduly prejudiced
VI. Pleading – (Practice hypo on p.181 – may be on final exam)
       A. Rules relevant
               1. FRCP 7, 8, 9, 11, 15 and Form 9
               2. See pp. 182-183
       B. State/Code Pleading (Field Code initially 1848 NY)
               1. P must state each and every cause of action under the applicable state law; must
               include factual details giving rise to cause of action
               2. Cannot plead evidence – if so, stricken
               3. Cannot plead conclusion of law – if so, stricken
       C. Notice Pleading (FRCP)
               1. P must simply state a claim (a rule of law) upon which relief can be granted
               2. no req to state cause of action; pleading deemphasized
               3. Discovery process and motions for summary judgment take on much greater
       D. Purpose of Pleading
               1. Eliminate claims and defenses that have no legal significance
               2. Notice of claims and defenses given (this is only goal in FRCP)
                       a. permits each party to ready for trial
                       b. Permits court to make proper pre-trial and trial rulings
               3. Creates a record for future use
               4. permits court to determine whether it has subject matter jurisdiction
       E. Pleading Steps
               1. Complaint
                       a. FRCP 3 – complaint initiates litigation
                       b. FRCP 8(a) – complaint must contain three elements
                                i. proof of jurisdication (28 USC §§1331 and 1332)
                                ii. statement of claim
                                iii. relief sought
                                          1. money damages, injunction, punitive, special
                                          performance, declaratory judgment
                       c. FRCP 10(b) – each claim in a separate count
                       d. FRCP 9 – pleading special matters
               2. Motions
                       a. defenses made by FRCP 12(b)
                       b. alleging defectiveness or invalidity of complaint by FRCP 12(b)
                       c. FRCP 12(g)
                                i. all 12(b) motions must be included in any pre-answer motion
               3. Answer
                       a. Denials
                                i. FRCP 8(b) requires all denials to be made with specificity
                       b. Affirmative defenses
                                i. FRCP 8(c) requires that the new facts of the affirmative defense
                                be pled as a condition of their admissibility
                       c. May include counterclaims, cross-claims, and 3rd party complaints
                                i. studied later; see FRCP 13 and 14
                                ii. reply to these claims perm'd in certain circumstances FRCP 7(a)
               4. Sanctions for Improper Pleading – FRCP 11
                       a. Complaint must be signed
                       b. allegations must be reasonable and relate to facts determined by a
                       reasonable investigation under the circumstances
                       c. Safe Harbor Provision: Rule 11(a)(1)(A) does not allow rule 11
                       motions until 21 days after complaint filed
                                i. permits further investigation and time to amend or withdraw
               5. Amendments to Pleadings
VII. Determination of Applicable Law
       A. State Law in Federal Courts
               1. Prior to 1938, federal courts used Rules of Decision Act (28 USC §1652)
                       a. done by authority of Swift v. Tyson (1842)
               2. used it to apply federal CL rather than any state CL
                       a. state statutory law, however, was applied
               3. The Erie Doctrine: Erie RR v. Tompkins (1938)
                       a. Rules of Decision Act (§ 1652): new research showed that legislative
                       intent for this act had been that federal courts apply state law in all cases
                       except where some federal law controlled
              b. HELD: must apply state decisional (common) law as well as statutes in
              diversity cases
              c. Twin aims of Erie:
                       i. discourage or eliminate forum shopping
                       ii. eliminate inequitable application of laws
B. Procedure vs. Substance (problems caused by Erie)
       1. Procedural rules and substantive law are too intertwined to be effectively
       2. Guaranty Trust Co. v. York gives us the Outcome determinitive test
              a. "A federal court sitting in diversity should have substantially the same
              outcome as a state court."
              b. can apply to everything; FRCP at risk
       3. Byrd v. Blue Ridge Rural Electric Coop, Inc.
              a. "affirmative countervailing considerations" (i.e., countervailing federal
              b. Test to determine applicability of a state procedural rule
                       i. is rule bound up with state-created rights and obligations or is it
                       just a form or mode of procedure?
                                Bound up = apply it
                                form or mode = don't apply it
                       ii. does it meet the outcome determinative test?
                                Yes = apply it
                       iii. does it impinge upon the separate nature of the federal courts
                       (i.e., "affirmative countervailing considerations" such as the 7th
                       Amend right to jury trial in this case)?
                                No = apply it
       4. Hanna v. Plummer
              a. Rules Enabling Act (§ 2072)
                       §2072 = says that US Supreme Court is permitted to adopt the
                       congressionally created FRCP and rules of evidence. Necessary
                       and Proper in Constitution cause permits congress to do whatever
                       it needs to in order to fulfill their other goals. Therefore, a
                       federal judge MUST follow (there is no discretion) a federal
                       rule UNLESS it abridges, enlarges, or modifies any substantive
                       right (cf. §2072) – a nearly impossible thing to prove.
                                This addresses the validity of the rules.

                      Moral of Hanna: it made FRCP safe. On exam, make argument
                      from Art III, §1 which permits congress to establish federal courts,
                      to Necessary and Proper Clause of Art. I, §8 to permit congress to
                      make enactments and they, following consultation with an
                      advisory committee that had been appointed by US Supreme
                      Court, established the FRCP and by §2072, the rules enabling act,
                      enacted them (a "congressional mandate") and then we come to the
                      decision in Hanna.
               b. Permitting federal procedure to trump state procedure in this case would
                     not violate the policy of Erie to prohibit forum shopping and inequitable
                     application of the laws
                              i. therefore, federal rules applies re: substitute service of process
              5. Walker v. Armco Steel Corp.
                     a. State statute regarding service of summons and tolling of statute of
                     limitations is intimately bound up with state substantive rights and
                     therefore cannot be overridden (cf. §2072(b))
              6. Stewart Org, Inc. v. Ricoh Corp.
                     a. Does a congressionally enacted statute (e.g., title 28) take precedence
                     over a state law governing an issue to be decided by a federal court sitting
                     in diversity?
                     b. Two-pronged test:
                              i. pertinent? Is the language of statute is broad enough to apply to
                              the issue before the court (i.e., statutory interpretation)?
                              ii. valid? Is the statute a valid exercise of Congress' constitutional
       C. The Problem with Determining State Law
              1. Mason v. Amer Emery Wheel Works
                     If a state Supreme Court decision is old, then a federal district court sitting
                     in diversity can overrule that decision so long as a different rule has
                     become widely accepted throughout similar jurisdictions. And/or federal
                     judge can look at recent state decisions on related issues that may show a
                     previous rule has been eviscerated to the point of meaninglessness.

VIII. Joinder of Claims and Parties
        A. Applicable Rules
               1. FRCP: 13, 14, 17, 18, 19, 20, 21, 22, 24, and 42
               2. 28 U.S.C. §1367
               3. FRCP may not expand subject matter jurisdiction of federal courts (FRCP 82)
        B. Joinder of Claims (FRCP 18 and 42)
               1. Under CL, you cannot join more than one claim
               2. FRCP 18(a) join as many claims as you want at pleading stage
                       a. Issue: does federal court have supplemental jurisdiction over all claims?
                               i. FRCP 82: no rule of civil procedure may extend or limit the
                               jurisdiction of the federal court
                               ii. §1367: so long as "form part of the same case or controversy"
                                         -see Gibbs: "common nucleus of operative fact"
                       b. Issue: what if you decide not to join all claims?
                               i. collateral estoppel (issue preclusion)
                               ii. res judicata (claim preclusion)
                                         -all claims relating to the cause of action must be brought
                                         together or any remaining claims will be extinguished
               3. FRCP 42 provides for severing of claims at trial stage
        C. Counterclaims (FRCP 13)
               1. Under CL, counterclaims were limited by
                       a. Recoupment: counterclaim cannot recover more than P claim
               b. Set off: any claim for liquidated damages whether or not it arouse out of
               the same transaction
       2. Policy behind Rule 13: resolve in a single action all disputes that arise out of a
       common matter (i.e., judicial efficiency)
       3. FRCP 13(a) – compulsory counterclaims
               a. P's claim is based on federal jurisdiction
               b. Must "arise out of the transaction or occurrence this is the subject
               matter of the opposing party's claim"
                         i. supplemental jurisdiction still governed by §1367
               c. if not asserted in a timely manner, it may be barred by res judicata,
               waiver or estoppel once decision reached
       4. FRCP 13(b) – permissive counterclaims
               a. counterclaim does not arise out of the same transaction
               b. supplemental jurisdiction does not apply; claim must have inherent
               federal jurisdiction
               c. if not asserted, may be later asserted in a separate action
       5. A counterclaim may be filed after the statute of limitations runs, so long as the
       P's original claim was filed before statute of limitations ran.
D. Cross-Claims (FRCP 13(g))
       1. Prerequisites
               a. asserted against a co-party
               b. seeks affirmative relief
               c. asserted by a party against whom a claim has already been asserted
               d. arises out of the same transaction or occurrence as the original claim
       2. Federal courts have supplemental jurisdiction over cross-claims by §1367
       3. Cross-claims are, by definition, permissive claims.
E. Real Party in Interest (FRCP 17a)
       1. Provides that every action shall be prosecuted in name of "real party in
               a. i.e., the party that possesses the right sought to be enforced
       2. Assignment
       3. Subrogation – Insurance co. gains rights to sue after payout or partial payout
               a. takes up a lot of space in book; probably on final as part of a "simple"
               tort claim case
       4. Capacity to Sue (FRCP 17(b) and 17(c))
               a. FRCP 9(a) when there is a question of capacity, the burden in on P to
               prove that he may sue
F. Claims Involving Multiple Parties (FRCP 19 and 20)
       1. Permissive Joinder of Parties
       2. Joinder of Persons needed for a just adjudication
               a. Parties fall into three categories
                         i. Proper (permissive): party who may be joined at P's option
                         (FRCP 20)
                         ii. Necessary (compulsory): party who ought to be joined, if
                         possible (FRCP 19)
                         iii. Indispensable (compulsory): party so closely connected to the
                        case that he must be joined or the action will be dismissed
                        (FRCP 19)
               b. Policy: liberal joinder rules exist to prevent multiple lawsuits over the
               same issues of fact (i.e., judicial efficiency)
       3. FRCP 20
               a. Limitations that may prevent joinder of parties
                        i. subject matter jurisdiction limitations
                        ii. lack of personal jurisdiction
                        iii. venue limitations
                        iv. matters that complicate issues for trier of fact or prejudice one
                        of the parties (then separate trials under FRCP 20(b) and 42)
                                  a. parties may waive personal jurisdiction and venue so that
                                  they may be joined; subject matter jurisdiction can never be
                                  waived (as per FRCP 82).
       4. FRCP 19
               a. This rule has a three-step process:
                        i. cases where joinder of the absent party is necessary
                                  a. necessary if "in his absence complete relief cannot be
                                  accorded among those already parties" (19(a))
                                  b. e.g. case on page 268
                        ii. determination of whether joinder is feasible
                                  a. not feasible if:
                                           1. party not subject to service of process (i.e., court
                                           may not be able to get personal jurisdiction;
                                           remember "bulge" provision under FRCP 4)
                                           2. joinder may deprive court of subject matter
                                           3. venue objection by joined party would render the
                                           venue of the action improper
                        iii. if joinder is not feasible, should action be dismissed because
                        party is indispensable?
                                  a. e.g. case on p. 270 (case similar to hypo at start of text)
G. Special Joinder Devices (FRCP 14 (a) and (b))
       1. Rule 14(a); very complex; has four parts:
               a. concerns who a D may join as a 3rd-party and the procedures involved
               b. rights and responsibilities of the 3rd-party, including any rights it may
               have against the original P
               c. rights of original P to assert claims and defenses against 3rd-party D
               d. who can strike a 3rd-party claim and misc rules
       2. Impleader (FRCP 14)
               a. 3rd-party P may cause a summons and complaint to be served upon a
               person not a party to the action who is or may be liable to the 3rd-party P
               for all or part of the P's claim against the 3rd-party P (aka: original D)
               [this rule favors Ds; helps spread liability]
                        i. must also comply with jurisdictional issue (sub mat and per jur)
                        ii. supplemental jurisdiction (§1367)
        b. then 3rd-party D can become 4th-party P and bring in a 4th-party D, and
        on and on
        c. FRCP 18: 3rd-party P may then add any other claims not-related, so
        long as there is at least one claim relating to original matter [however,
        under FRCP 42, court may sever the unrelated matter]
3. Interpleader (§ 1335(a))
        a. many people want to get the big bag of money from stakeholder
        b. interpleader is an action in itself (usually by insurance companies)
                 i. e.g., A sues insurance company. Insurance company knows
                 there are a lot of claimants to money. Therefore, they need to get
                 this in interpleader. They can do this by filing a counterclaim for
                 interpleader (§1335 –statutory interpleader or FRCP 22)
        c. statutory interpleader (§§ 1335, 1397, 2361)
                 i. subject only to $500 limit (§1335) – subject matter jurisdiction
                 ii. need only a single D to be diverse (§1335) – sub mat jurisdiction
                 iii. venue in any place where a claimant lives (§1397)
                 iv. nationwide service for the action (§2361) – personal jurisdiction
                 v. injunctive power (§2361)
                          a. State Farm (279): injunction cannot be overly broad
        d. FRCP 22
                 i. subject to all jurisdictional restrictions (inc. $75k)
                 ii. must have complete diversity
4. Intervention
        a. FRCP 24 – intervention is when a 3rd-person seeks to join a lawsuit
        already in progress
                 i. intervene as a P
                 ii. intervene as a D
                 iii. intervene claiming something adverse to both P and D
                 iv. (to intervene: must file motion that includes a complaint,
                 explaining which of these three apply)
        b. FRCP 24 designed to tie in with FRCP 19 and 23.
                 i. designed to balance interests of the outside party with those of
                 the parties already in the lawsuit
                 ii. timeliness to intervention
                          a. determined by discretion of the court (i.e., must be
                          argued); no strict statutory standard
                                   1. look at prejudice to parties that granting the
                                   motion would create
                                            A. e.g., must begin discovery again; this
                                            increases costs and time delay
                                   2. look at prejudice is do not allow the motion
                 iii. subject matter jurisdiction
                          a. intervenor seeks to join as a plaintiff
                                   1. if intervenor destroys diversity, then by §1367(b)
                                   he may not intervene; otherwise permitted
                          b. if federal question, §1367 analysis does not apply
                    c. two types of intervention
                            i. intervention of right (24(a))
                            ii. permissive intervention (24(b))
                    d. Three-pronged test for intervention as right [cf. 19(a)(2)(i)]:
                            i. does intervener have interest in decision?
                            ii. will parties' interests be impaired or impeded if judgment
                            reached without their participation? (most diff to show; cite
                            Atlantis for this idea)
                            iii. Is intervener's interest adequately represented by persons
                            already parties to the lawsuit?
                                      a. Yes to both; no intervention
                                      b. Yes to first, no to second: intervention likely
                            iv. (statute may also permit intervention)
IX. CLASS ACTIONS – the mother of all joinder
      Used where joining all parties to an action is impracticable.

       Policy: efficiency and consistency of litigation; permits people with tiny claims can join
       to get redress but lawyers are the ones who get rich and can drive corporations out of
       business [ergo Rule 23 is constantly being manipulated for political purposes]

       A. One or more members of a class of similarly situated persons may sue or be sued
              1. litigation done on behalf of other class member without bringing them into
              court (i.e., class members not consulted)
              2. all class members will be bound by outcome
       B. FRCP 23: promulgated to deal with three types of cases
              1. where indiv claims may establish inconsistent standards of conduct for D
              2. where injuctive or declaratory relief is sought, and the relief in question is
              common to all members of the class
              3. where issues of fact or law are common to the class so that joint litigation
              achieves economies of time, effort, and expense.
       C. Pre-Trial motions under Rule 23
              1. Representative of class and class itself must be certified under Rule 23(c)(1); he
              must prove 7 things to the court:
                       a. there must be a discrete class
                               i. important because we must be able to determine who profits
                               from judgment and who is bound by it under res judicata
                       b. representative must be a member of that class
                       c. Rule 23(a)(1) – class must be so numerous as to make joinder of all
                       members impracticable
                       d. Rule 23(a)(2) – action raises a question of law or fact common to class
                       e. Rule 23(a)(3) – typicality: claim or defense of the representative must
                       be typical of those of the class
                       f. Rule 23(c)(4) – representative must fairly and adequately protect
                       interests of the class:
                               i. rep must have a stake in the litigation
                               ii. is class lawyer adequate (experience; resources)?
                        iii. is class beset by internal antagonism?
               g. Does action fall within one of the three rule categories?
                        i. 23(b)(1) – prejudice to members of class or the party opposing
                        the class would otherwise result
                        ii. 23(b)(2) – injunctive or declaratory relief
                        iii. 23(b)(3) – monetary damages (Tornquist emphasizes)
                                  a. 23(c)(2) – notice for 23(b)(3) action must have 3 things:
                                          1. class member may chose to be excluded and
                                          bring a later action on their own
                                          2. judgment will include all members of class who
                                          have not opted out
                                          3. any non-excluded member may enter an
                                          appearance in class action through counsel
       2. Once certified, rep must give proper notice under 23(c)
       3. Other considerations under 23(d)
               a. timetable and regulation of discovery
                        i. protects members of class from inordinate attorneys' fees
               b. issues
               c. establish a committee of counsel
               d. counterclaims not usually allowed
       4. 23(e) – settlement
               a. court must approve settlement (an exception to normal rule) and give
               notice to members of the class
                        i. in order to protect members of class from attorney collusion in
                        accepting unfair settlements
D. Due Process Considerations
       1. in what way will absent members of a class be bound by the decision?
E. Preclusive Effect of a Class-Actions Judgment: Res Judicata
F. Death Knell Doctrine – Appeals
       1. Once court determines whether or not a class action is to be maintained, it can
       be appealed under §1291 only if it is a "final decision."
       2. interlocutory orders are not appealable
               a. e.g., orders on whether or not to designate a class (considered tentative
               and subject to alteration or amendment by the court)
       3. if court orders (i.e., not a judgment) that class not certified, then original claim
       may still procede.
               a. unlike other interlocutories, Rule 23(f) permits appeal on class
               certifications within 10 days of the order
G. Notice
       1. "Best Notice Practicable" under Rule 23(c)(2)
               a. "best notice" is not discretionary, but mandatory in order to fulfill due
               process requirements
               b. class member may chose to be exclude from the class action
                        i. if no affirmative exclusion, then decision is binding
               c. "best notice" does not adhere to rigid rules (use Mullane standard)
                        i. cost of notice does not seem to be a factor
                                 ii. how easily can members of class be IDed?
                                 iii. publication or notice through media coverage may be sufficient
                                 when class members difficult to identify.
       H. Class Action and Jurisdiction
                1. Diversity: only needed between named representative and defendant
                        a. domiciliaries of unnamed members of the class no matter
                        b. can also be manipulated to state out of federal court
                2. Free v. Abbott Laboratories
                        a. Zahn: all parties must individually meet amount in controversy
                        b. HELD: §1367 permits supplementary jurisdiction for all members of
                        class so long as representative of class meets the amount
                3. Johnson v. Plantation General Hospital
       I. Injunctive Relief (FRCP 23(b)(2))
                1. Liberty Mutual Insurance v. Wetzel
                        a. interlocutory orders related to injunctions only are subject to appeal
                        under §1292
       J. Settlement of Class Actions
                1. 23(e) provides for settlement: courts must approve to ensure fairness.
       K. Common Interest Requirement
                1. Hansberry v. Lee
                2. Court can create a subclass in a class action, where subclass is antagonistic to a
                portion of the main class' interests
                        a. such a designation can be made at any time during the litigation (e.g.,
                        one year after commencement!)
                        b. subclass may even be realigned as a D from the original P class if the
                        interests are too antagonistic

X. Discovery

The most important thing to know for discovery is the scope. This is important because we need
to know what we are permitted to request and what we do not have to produce.

       A. Purpose of Discovery
              1. Policy: Preservation of information.
                       a. old or sick can have their accounts preserved in case of death or
                       inability to be present at trial (Rules 27 and 32a)
              2. Isolate issues that are in controversy between the parties (not effective under
              the liberal discovery rules of FRCP).
              3. Determine what proof (facts) is available regarding issues.
              4. Because both sides know nearly all the facts and law, nearly every case settles
              because both sides know the probable outcome
              5. Also used in motions for summary judgment
       B. Timing of Discovery Devices
              1. See table on p. 314
              2. first must have the initial scheduling conference before discovery continues
       C. Tools of Discovery (generally)
        1. Parties must provide, without request (Rule 26):
                a. names and, if known, addresses and phone # of parties with info
                b. copy or description of all documents, things, and data compilations in
                the possession, custody, or control of the party
                c. calculations of "any category of damages"
                d. info re: any insurance agreement that may be used to satisfy part or all
                of a judgment
                e. 26(a)(2)(A): disclose names of expert witnesses who may present
                f. 26(a)(3)(A): disclose names of witnesses and each document to be used
                at trial
        2. Discovery Plan: four steps (p. 316)
                a. Written interrogatories
                b. Document production
                c. Depositions
                d. Requests for admissions
        3. Failure to comply: Sanctions
                a. Rule 37, especially subsection (b)(2)
                         i. no sanction may be upheld if it is based upon an error of law
D. Depositions (Rules 26(d), 30, and 31)
        1. Enables attorney to question a sworn witness about subject matter of case
        2. Notice of deposition must be received by every party to action
                a. notice will include who, where, when deposed
        3. If you can't get documents through normal route of discovery, then serve a
        subpoena duces tecum on the non-party in control of the document and order
        them to bring it to a deposition
E. Interrogatories (Rule 33)
        1. Def: written questions to be answered by the party under oath
                a. less expensive than oral, recorded/transcribed deposition
                b. typically answered by attorneys; answers often evasive; however,
                answers are considered given under oath
                c. Max of 25 questions, inc. subparts; 30 days to answer
        2. Any party may serve interrogatories on any other party
                a. party cannot claim ignorance if the information can be obtained from
                sources under its control (esp. important when party is a corporation)
                b. Rule 26(e) – duty to supplement: if responding party later learns his
                answers were incomplete, he must correct or supplement the previous
        3. May not be served on non-parties
        4. Uses
                a. obtain data and simple facts (e.g., names and phone numbers)
                b. may clarify issues and provide evidence
        5. Objections to Interrogatories; objections "shall be stated with specificity" and
        in a timely manner. Normally, a motion for protective order (Rule 26(c)) [always
        after an informal meeting between lawyers].
                a. questions are burdensome ($$) and oppressive (e.g., p. 321)
        i. three options for redress
                 a. narrow scope of inquiry
                 b. ask for expenses
                 c. (Rule 33(d)): simply make documents available to other
b. information is outside the scope of discovery (limits of discovery)
        i. not relevant
        ii. privileged
                 1. discussions between attorney and client about legal
                 matters, such as a particular action
                 2. Upjohn: corporate privilege applies to all employees (not
                 just control group) of corporation who speak with attorney
                         a. decision applies only to federal courts (does not
                         apply to cases heard in diversity applying state law
                         under Erie doctrine)
                         b. only control group can waive privilege
                                  i. therefore, info given by an employee
                                  believing it to be privileged can later be
                         c. policy: broaden privilege so that lawyer can get
                         good info so that he may give good advice
                 3. 5th Amend privilege against self-incrimination
                         a. applicable in civil proceedings at discovery stage
                         b. applicable to states via 14th Amed
                         c. clients or witness can avail of this Amendment
                         d. not applicable to corporations, though officers
                         within corp can take the 5th
                         e. not applicable to physical evidence (can't use 5th
                         to prevent blood samples, etc)
                         f. if no danger of criminal conviction, then person
                         cannot take 5th (e.g., already acquitted for crime
                         and then sued later for civil liability)
                         g. Grant of immunity to witness is a way to get
                         around the 5th
                                  i. Two types:
                                           1. use immunity: state cannot use
                                           info contained in the testimony to
                                           prosecute the person testifying
                                           2. transactional immunity: state
                                           cannot prosecute for anything related
                                           to that transaction (much better
                         h. Witness can take 5th at deposition (another cloak
                         for information)
                                           i. Cannot be a punishment for invoking a privilege
                                           (or argue to jury that therefore this person is
                                           obviously guilty)
                         iii. attorney work product
                                  1. def: information and statements taken "in anticipation of
                                  litigation", not just things post-filing.
                                  2. Hickman v. Taylor (codified in Rule 26(b)(3))
                                           a. if other side can get the info w/out undue
                                           hardship, then other side can go out and get it
                                           themselves (e.g., witness not dead, etc)
                                           b. Oral statements: turning these over could be a
                                           problem because lawyer could be called to witness
                                           stand to impeach the testimony of an informant.
                                           This is terrible and should not be allowed.
                                           c. Policy: we must protect the adversarial nature of
                                           our system and maintain attorneys as zealous
                                           advocates for clients.
                                           [NB: Work product is much broader than privilege
                                           (privilege only applies to discussions with clients),
                                           though it can be waived by turning over documents
                                           formed as work product to witnesses or as a result
                                           of document production.]
                                           d. sacrosanct work product which can never be
                                           compelled to turn over: mental impressions,
                                           conclusions, opinions, or legal theories of the
                c. seeks repetitious info or is too broad
                d. questions constitute harassment (protective orders under Rule 26(c))
                e. questions call for a legal conclusion or opinion on matter of law
       6. If questions not answered, opposing party can seek a Rule 37(a) motion to
F. Production of Docs, Entries on Land, Testing, Sampling
       1. Rule 34: allows party to serve a request for production identifying and/or
       describing items desired with reasonable clarity
                a. writings, photos, graphs, recordings, computer data, etc
                b. before turning over info: check docs for privileged into, work product,
                anything you don't want to waive
                c. Rule 45 allows similar evidence to be subpoenaed from a non-party in
                conjunction with a deposition
       2. Party receiving request has 30 days to respond
                a. if party objects to request, opposing party may seek an order to compel
                discovery pursuant to Rule 37(a)
       3. Rule 26(e) – duty to supplement – also applies here
       4. Sampling: if the document production would be burdensome and expensive,
       then court can sample the records (e.g.) of a single employee for a single year and
       then, if useful info comes up, the court can widen the scope
               5. Objections similar to those for interrogatories ("narrow the scope" is a key
               phrase here)
                        a. too broad or vague; can't even understand the request
                        b. burdensome
               6. Protective order to prevent compulsion to disclose info (Rule 26(c))
                        a. key words in rule: "good cause"
                                i. this is the Marrese standard:
                                          1. how necessary are the documents to party in proving his
                                          2. adverse party must have good cause (unrelated to the
                                          case?) not to disclose. (e.g., if we disclose, no one will be
                                          candid in what they say in our tenure votes, etc)
                                          3. can alternative information be given (e.g., redaction:
                                          cross out names such that it will prevent identification?)
                                          4. can new depositions be taken to substitute for existing
                        b. any ruling on 26(c) can only be overturned on "abuse of discretion"
                        standard by the trial judge
       G. Compulsory Mental and Physical Examinations (Rule 35)
               1. These exams are normally performed by agreement between the parties
               2. If no agreement, then turn to Rule 35 test to compel examination
                        a. moving party must show good cause for exam
                                i. weighing the pain, danger, or intrusiveness of test against
                                ii. the need or usefulness for the information to be gained
       H. Requests for Admissions (Rule 36)
               1. request to admit to
                        a. statements or opinions of fact
                        b. the application of law to a fact
                        c. genuineness of any documents described in request
               2. party upon whom this was served has one week to respond.
               3. if party does not respond w/in 30 days, matter is admitted
               4. to deny the request, the party must provide specific reasons
               5. Policy: requests for admissions provide an inexpensive way to narrow issues
               with binding effect
       I. Investigations (this is before discovery, i.e., before the action is joined)
               1. Statements from non-parties.
                        a. anyone giving a statement is entitled to a copy of that statement if he
                        requests it (applies to parties and discovery (??) as well)

Def. motion: application to court for an order

XI. Pre-Trial Motions (key case: Celotex Corp v. Catrett)
       A. Default Judgment – Rule 55(a), (b), (c), and 60(b)
               1. Rule 55
                      a. default rule ensures that parties will reply to complaint
                      b. initially, we get a default order, rather than a judgment (important for
                                   i. if order of default, court can set it aside by 55(c)
                                   ii. if judgment of default, court can rely on Rule 60(b) via 55(c)
                                             a. must look for good cause to set aside judgment; four
                                                      i. excusable neglect: must have affidavits to
                                                      support this assertion
                                                      ii. must show a meritorious defense (i.e., if we set
                                                      aside judgment, there is are triable questions)
                                                      iii. other side not prejudiced by failure to file a
                                                      timely answer
                                                               a. costs to restart action
                                                               b evidence goes stale?
                                                      iv. must have taken quick action to correct the
                          c. party may move to set aside (Rule 55(c)) default (very common)
                  2. Ideal: we want a hearing on the merits; default rule is exception to this policy
           B. Judgment on the Pleadings – Rule 12(c) and (b)
                  1. After pleadings are complete, party may move for judgment on the pleadings
                          a. strictly limited to pleadings (complaint and answer) themselves
                          b. motion for summary judgment is pleadings PLUS
                  2. rarely granted
                  3. can never be granted if there is an issue of fact for trial
                          i. that is, court can only decide issues of law
                  4. to decide, judge assumes all inferences in favor of non-moving party
           C. Summary Judgment – Rule 56 (motion normally made after or at end of discovery)
                  1. No Genuine Issue of Material Fact; Rule 56(c)
                          a. if party can show, through a motion, that there is no genuine issue of
                          material fact and . . .
                          b. party is entitled to judgment as a matter of law then . . .
                          c. summary judgment granted
                  2. Standards of Proof
                          a. party moving for summary judgment has the burden of production1 of
                          evidence to show no genuine factual dispute
                          b. court will view info in light most favorable to non-moving party
                          c. if court determines there is no genuine issue, then burden shifts to non-
                          moving party to establish that there is a factual dispute; Rule 56(e)
                                   i. Celotex made this burden easier
                                             1. court should grant summary judgment pursuant to 56(c)
                                             if the adverse party . . .
                                                      a. fails to show sufficient evidence to establish the
                                                      existence of an element essential to that party's
                                                      case and
                                                      b. on which that party will bear the burden of
                                                      proof at trial
    Opposite of trial where P has burden of production, proof, and persuasion.
                                           2. the moving party must simply point out to the court the
                                           inability of adverse party to meet its trial burden; there is
                                           no need to use affidavits
                                           3. burden then shifts to adverse party to prove that it can
                                           meet its burden
                        d. both parties can bring additional documentary evidence to
                        support/oppose the motion
                                 i. pleadings (non-moving party cannot stand on pleadings)
                                 ii. all discovery information
                                           1. depositions
                                           2. interrogatories,
                                           3. admissions on file
                                           4. documents discovered
                                 iii. affidavits (written statement that is sworn to)
                                           1. based on 1st-hand knowledge
                                           2. must be admissible in evidence at trial
                                           3. must show witness is competent
               3. Benefits
                        a. D's don't have to risk juries emotional decisions
                        b. lots of money saved
               4. Partial summary judgment
                        a. judge may dismiss specific counts
                        b. dismiss individual parties (e.g., one of the Ds)
                        c. judgment on liability but not on damages
               5. Appealability
                        a. summary judgment is automatically appealable
                        b. summary judgment denied: this is an order and not appealable
       D. Settlement – Formal Offer of Judgment; Rule 68
               1. Form of the offer
                        a. monies sought can be offered in a lump sum (i.e., to incorporate
                        damages, fees, and costs)
               2. If P does not take offer, then he must get judgment larger than the offer after
               trial or else P must pay D's attorney's fees from the time they make the offer
                        a. great tool for D to threaten P, though offer must be done in good faith

XII. Trial Motions (application to court for an order)– done orally
        A. Judgment as a Matter of Law (JMOL) in jury trials; Rule 50(a)
               1. known as motion for a directed verdict in state court
               2. When can it be made
                       a. after party has been fully heard on an issue
                                i. e.g., after P rests, D can move w/out presenting case
                                ii. after D rests, D or P can move
               3. if you don't make motion for JMOL before jury goes out, you cannot later
               move for a renewed motion for JMOL (called JNOV in state court) on different
                       i. if you don't raise it, you lose it
                4. Court's possible responses:
                        a. grant the motion: it is a judgment
                        b. deny motion: case goes on
                        c. grant a motion by non-moving party to reopen the evidence before
                        deciding on JMOL
                                i. if move to reopen evidence:
                                         1. must tell judge nature of the evidence
                                         2. evidence is decisive/important
                                         3. will not cause undue delay
                                         4. other party not prejudiced
                                         5. evidence admissible
                5. Test
                        a. take all info in favor of non-moving party
                        b. make all inferences in favor of non-moving party
                        c. "there is no legally sufficient evidentiary basis for a reasonable jury to
                        find for the non-moving party"
                        d. THEREFORE, this is an evidentiary concept (motion for new trial, on
                        the other hand, is based on error)
                6. Erie problem
                        a. no consensus on whether it is substantive (state law) or procedural
                        (federal) issue
                7. JMOL is reviewed on a De Novo standard
                        a. much easier to get overturned on appeal because it is about evidence,
                        not about abuse of descretion (appeal courts give much deference to trial
                        judge on that sort of appeal)
                        b. Seventh Amendment (1791)
                                i. any action theretofore tried before jury will continue to be tried
                                in like manner
                                ii. JMOL is nevertheless constitutional because ?????
XIII. Post-Trial Motions
LT on Motion for New Trial - best way to show how much responsibility is placed upon the
A. Motion for a new trial (Rule 59) and motion for renewed JMOL (Rule 50(b))
1) When you move for renewed JMOL (formerly JNOV) by Rule 50(b), you move in tandem
   for new trial (Rule 59). Motion for new trial is much more likely to be granted.
   a) motion must be filed within 10 days
   b) ground for renewed JMOL is that no reasonable juror would have rendered this judgment
        based upon the evidence taken in the most favorable light to the non-moving party.
   c) Motion for new trial can be granted sua sponte (Rule 59(d))
   d) Order for new trial cannot be appealed. However, if a renewed JMOL is also granted,
        then an order for a new trial is ineffective unless JMOL overturned on appeal.
   e) New trial is granted on ERROR, but not error based upon the lawyer’s error. Error
        committed by any trial participant during the trial may have had an effect on the jury’s
        i) Judge
            (1) may admit inadmissible evidence or refuse to allow admissible evidence (i.e.,
                erroneous evidentiary rulings)
            (2) incorrect jury instructions are grounds for new trial
       ii) Attorney
            (1) failure to object - general rule is that you must object and if you don’t you waive
                the right on behalf of your client. Reasoning: if you don’t object you don’t give
                the court the opportunity to clear the error. General Rule is that this is “harmless
            (2) improper comment in front of the jury
            (3) fail to object to jury instructions
       iii) “Plain Error” is error that the judge should have picked up by him/herself. If the
            court fails to raise it, the appellate court may still choose to raise it.
       iv) Jury/Juror - General rule is that lawyers cannot question jurors after the verdict.
            (1) verdict against the weight of the evidence
            (2) general jury verdict inconsistent with answers to interrogatories (Rule 49(b))
            (3) damages awarded were inadequate or excessive
            (4) misunderstanding of fact - is not ground for new trial
            (5) jury misconduct - motion “the  received an unfair trial” - not ground for new
                (a) lawyer has responsibility for seeing sleepy/drunk jurors and bringing it to
                     courts attention, you cannot see it and not raise it
                (b) if you allow jury verdicts to be attacked on the grounds…, you are interfering
                     with the sanctity of the jury
                (c) every jury trial should be final - “intrinsic” activity of the jury should not be
                     the subject of post trial attack
            (6) “extrinsic” information (brought into jury room)
       v) Newly discovered evidence (Rule 60(b)(2))
            (1) discovered after trial and could not have been discovered before or during
            (2) is material and would likely have produced a different verdict
    f) Perjury by witness - lawyer could have found out about this during the trial, unless you
       can show that the lawyer could not have discovered the perjury.
You need to know: Motion for New trial - grounds are key - judge allowed or did not allow
evidence, instructions of law were erroneous, inappropriate comments of counsel.

       B. Effects of motion for a new trial
              1. suspends the finality of judgment
                      a. thereby extending deadline to file appeal
              2. Types of new trials
                      a. complete new trial on all issues
                      b. partial new trial if issue can be separated
                      c. remittitur
                               i. occur when verdict is either excessive
                                       1. judge grants new trial unless P agrees to a
                                       reduction in damages
                      d. relief in a non-jury trial can lead to:
                               i. open the judgment
                             ii. take additional testimony
                             iii. amend findings of fact and conclusions of law
                             iv. make new findings of fact and conclusions of law and direct the
                             entry of a new judgment
       C. Motion to Amend the Substance of the Judgment (Rule 59(e))
              1. Reasons:
                     a. accommodate an intervening change in controlling law
                     b. account for new evidence not available at trial (Rules 59(e) and 60(b))
                     c. correct a clear error of law or prevent manifest injustice
              2. Motion to add or amend findings of fact (Rule 52(b))

XIV. Trial
      A. Right to Trial by jury (7th Amend & Rule 38(a)): actions at law and in equity
             1. 7th Amend adopted in 1791
                      a. therefore, whatever was considered a "suit at common law" was entitled
                      to a jury trial
                      b. equitable relief was not entitled to a jury
             2. what about mixed cases? i.e., when money damages and injunctions are sought
             in the same action?
                      a. historically: legal claims ALWAYS have right to trial
                               i. therefore, when legal and equitable claims in a single action, the
                               court ordered separate trials
                      b. FRCP 18: permitted joinder of all legal and equitable claims for
                      c. Beacon Theatres: "only under the most imperative of circumstances
                      (i.e., almost NEVER) can the right to trial by jury of legal claims be lost
                      by prior determination of equitable claims"
                      d. Dairy Queen: unless a cause of action at law is "so complicated that
                      only an equitable court can solve it," jury should hear action.
                               i. since FRCP 53(b) permits the appointing of masters to assist the
                               jury in such cases, it seems almost impossible that the right to jury
                               should be abridged
      B. The Trial Starts
             1. First, select the jury (voir dire)
                      a. peremptory challenge (Rule 47(b) and § 1870)
                               i. cannot excuse classes of people based race or gender
                               ii. JEB is US Supreme Court case that established gender
                               iii. Batson established the race req
                                        1. Batson hearings held when accusation of racial
                      b. challenge for cause

XV. Res judicata and collateral estoppel – CL doctrines
      A. Res judicata / Claim preclusion
              1. Rule 18 – may join as many claims against opposing party as there is
                     i. only applies to actions between same parties
              2. merger/bar
                       i. if P prevails, all future claims are merged into the judgment (i.e., all
                       claims extinguished and replaced by the judgment)
                       ii. if D prevails, the P is barred from bring the same claim
              3 when does it apply?
                       i. same parties
                       ii. must be on the merits
                                a. 12(b)6 motion: action dismissed w/o prejudice, therefore claim
                                can be brought again
                                b. 12(b)6 motion: action dismissed on the merits – now claim is
                                barred by res judicata
              4. §1738
       B. Collateral Estoppel / Issue preclusion
              1. this is a good case for special verdict
              2. Same issue but different parties
              3. mutuality????

Work in somewhere: Consent is also a way to gain personal jurisdiction over a NRD.
         Express consent: yes, you have jurisdiction.
         Implied consent: must object to personal jurisdiction in initial motion; issue cannot be
                raised at a later time (Hess v. Pawloski)
Consent can also be gained via a contractual clause: the forum selection clause.
         Counter-claims create special problems of consent.
If D files an objection to the jurisdiction of the court, he consents to the court's jurisdiction!

Rules for pleadings: Know hypo on p. 181

Testing: know names of cases for personal jurisdiction and for applicable laws (i.e., Erie, etc)

VIDEO TAPE on discovery
        Liability does not end with civil prosecution for negligence. Any attempt to cover up a
defect can later lead to criminal prosecution for some sort of recklessness.
        Documents that are "destroyed" or "lost" are often worse than those that are discovered
because the jury will draw an inference from that omission that these documents MUST have
been incriminating.
        Destroying a document is not illegal until an action has begun or you know that an action
is about to begin.
        If you know a client is going to lie, then you need to recuse yourself from the litigation to
be ethical.
        Adversarial system results in each side trying to develop the most favorable evidence for
his side. The jury then decides which is the truth. (however, lawyers are often obfuscating the
truth or attempting to deceive the jury).
        If a document comes to the surface that will totally prove the other side's case, you have
to turn over the document. Moreover, you cannot settle the case without disclosing the
document. Therefore, the settlement will increase in cost, but the D will probably request that a
confidentiality agreement is signed.
        Judges will never force a settlement.

Civil Law
       Justinian code
   -Procedure under civil law is different
       judge is the investigator; lawyers do not develop evidence
       judge is much more active
       judging is profession within itself; they are not former lawyers

American System
      we have jury in civil cases (English rarely have this)
      costs: American – each party pays his own lawyer
             England – loser pays everything (in effect, FRCP Rule 11 acts in a similar

To top