Pleading and Civil Procedure Outline -- Spring 07 -- Van Schaack Mtn.for summary Mtn for (after party fully 12(b)(6) judgment d.v. heard on an issue) mtn for ↑ ↑ ↑ jnov new trial ↓_∩_↓___discovery___∩____Trial_____∩_____↓__________jury___↑______↑ ______ C A preserve objection to jury instruction FRCP 7: Pleadings Allowed; Form of Motions a. Pleadings (a) i. Complaint 1. Sets forth factual averments ii. Answer 1. May advance a counterclaim against П iii. Court may order a Reply to an Answer 1. Usually ordered by court when an answer asserts new facts iv. Reply to a Counterclaim 1. Counterclaim from ∆ to П I) 2. Reply automatic if counterclaim asserted v. Answer to a Cross-claim 1. Cross-claim from ∆ to ∆ or from П to П vi. Third-party complaint 1. If a person who was not an original party is summoned under Rule 14 vii. Third-party answer 1. Court may order only if a Third-party complaint is served b. Motions and Other Papers (b) i. Motions are applications to the court for an order and must be made in writing stating particularly the grounds therefore and the relief or order sought (1) 1. Writing not necessary if motion made during a hearing or trial (1) II) 2. Motions as a mechanism for testing a claim a. Motion to dismiss – challenge the legal basis of the claim (even if facts are true) III) b. Motion for Summary Judgment – evidence is clear that a jury would find one way ii. Forms of pleading apply to motions (2) IV)iii. Motions must be signed per Rule 11 (3) c. Demurrers, Pleas, etc. Abolished (c) i. Demurrers, pleas, and exceptions for insufficiency of pleading shall not be used V) Pleadings d. Purpose i. Puts ∆ on notice regarding claims and relief sought VI)ii. Serves as a roadmap of the trial regarding preparation and discovery VII)iii. Frames the issues to the court VIII)iv. Public reasons/press release e. California Code Pleading (continuum) i. ←C/L short plain statement---Operative Facts (Calif.)---Evidence---Affidavit with exhibits---Civil Law→ f. Ethical Constraints on Pleadings i. McCormick v. Kopmann (Illinois state court) -- Since under the state's procedural rules P could bring actions against the Ds in series or at the same time in separate suits, she is entitled to join them in a single action, introduce all her proof, and submit the entire case to the jury under appropriate instructions. IX) FRCP 8: General Rules of Pleading f. Claims for Relief (a) i. Claim for relief (original claim, counterclaim, cross-claim, or third-party claim) shall contain: 1. A short and plain statement of the grounds upon which the court’s jurisdiction depends (1) a. Examples - §1331, §1332, Maritime X) i. Grounds for Venue often stated though not required XI) b. Unless the court already has jx and claims needs no new grounds to support it (1) 2. A short and plain statement of the claim showing that the pleader is entitled to relief (2) a. Examples – compensatory or punitive damages, injunction, declatory relief XII)b. Court accepts that П may not have much information pre-discovery – Dioguardi v. Durning i. There is no requirement of stating facts sufficient to constitute a cause of action only that there be a short plain statement 1. Importance of a person’s day in court (merits decided later at trial stage) ii. Purpose of complaint is to put ∆ on notice – Conley v. Gibson c. Additional information does not violate the Rule i. One can plead themselves out of court if information actually goes against their claim – American Nurses Association (7th Circuit) 1. Dismissal without prejudice for failure to state a claim allows party to re-file (2 bites at apple) a. Can use strategically to toll statute of limitations, fix complaint and further develop the case i. Also applies w/ Rule 12(e) request for clarification 3. A demand for the judgment for the relief the pleader seeks (3) a. Relief in the alternative or of several different types may be demanded (3) i. Inconsistent causes of action are permitted as long as each is complete in itself – Lambert v. Southern Counties Gas Co. g. Defenses; Form of Denials (b) i. A party shall state in short and plain terms the party’s defenses to each claim asserted and 1. If certain defenses not raised, they are waived ii. A party shall admit or deny the averments upon which the adverse party relies 1. If a party is without knowledge or information sufficient to form a belief as to the truth of an averment, a party shall so state and this has the effect of a denial XIII)2. Denials shall fairly meet the substance of the averments denied a. When a pleader intends in good faith to deny only a part or a qualification of an averment, the pleader shall specify so much of it as is true and material and shall deny only the remainder XIV)b. May deny specifically, or paragraphs, or generally deny all averments except such designated averments or paragraphs as the pleader expressly admits i. General denial or all averments (including to that of jx) must be made subject to obligations of Rule 11 XV)ii. ∆ must file a more specific answer than a general denial of an entire paragraph if same paragraph contains other allegations ∆ is not contesting. Zielinksi v. Philadelphia Piers, Inc. (PA dist. ct.) -- ∆'s general denial of paragraph of complaint containing agency allegation was ineffective b/c same paragraph contained other allegations ∆ did not contest. Since ∆ did not contest П's injury or the fact of the collision, it should have made a specific denial only as to the agency allegation. c. If “X” is alleged → Must deny as “Not X” i. To say “Y” is not to deny “X” h. Affirmative Defenses (c) i. In pleading to a preceding pleading, party shall set forth any affirmative defenses (open list) 1. including: accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver etc. XVI)2. If a party mistakenly designates a defense as counterclaim or designates a counterclaim as a defense, the court shall treat the pleading as though it had been properly designated, if justice so requires ii. Burden of proof on ∆ 1. Allocation of elements – Qualified immunity is a defense to be asserted by the ∆, and not relevant to the existence of the П’s claim – Gomez v. Toledo a. П does not need to state that ∆ acted in bad faith because the text of the statute upon which claim based does not mention bad faith i. Other elements of statute pleaded XVII)ii. Judicial interpretation of statute 2. Burden shifts to П if allegations are denied in the Answer XVIII)3. Burden spectrum a. Burden of pleading → make allegations via facts in complaint (pleading stage) XIX)b. Burden of production → provide evidence supporting allegations (during trial) XX)c. Burden of persuasion → convince the fact finder (during trial) i. Effect of Failure to Deny (d) i. Averments are admitted when not denied in the responsive pleading 1. if the averments are in a pleading to which a responsive pleading is required (other than averments of damage) ii. Averments in a pleading to which no responsive pleading is required or permitted shall be taken as denied or avoided j. Pleading to be Concise and Direct; Consistency (e) i. Each averment of a pleading shall be simple, concise, and direct (1) 1. No technical forms of pleading or motions are required (1) ii. Two or more statements of a claim/defense may be set forth alternately or hypothetically (2) 1. If in the alternative one of the statements independently would be sufficient, that sufficiency stands even if one or more of the alternative statements is independently insufficient (2) XXI)2. Modern trend to allow inconsistent theories a. At pleading stage П only knows he’s been wronged and may use discovery to make clear what really happened 3. Traditionally inconsistency not permitted a. Integrity of the system, fishing expedition, and judicial economy concerns iii. A party may state as many separate claims/defenses as she has regardless of consistency or grounds (legal, equitable, maritime) (2) 1. All statements are subject to Rule 11 (2) k. Construction of Pleadings (f) i. All pleadings shall be so construed as to do substantial justice XXII) FRCP 9: Pleading Special Matters (Heightened Pleading Standard) l. Capacity (a) i. Not necessary to aver capacity of a party except as required to show jx if the court 1. If a party desires to aver capacity, it shall be done by specific negative averment, including supporting particulars as are peculiarly in the pleader’s knowledge m. Fraud, Mistake, Condition of the Mind (b) i. Circumstances constituting fraud or mistake shall be stated with particularity 1. Conditions of the mind such as malice, intent and knowledge may be averred generally XXIII)2. Leatherman v. Tarrant County – A federal court may not apply a heightened pleading standard that is more stringent than the usual requirements under FRCP 8(a) a. Rules Enabling Act – FRCP not to enlarge or abridge a substantial right – thus occasionally, Rule 9(b) may not apply 3. Complex cases and fraud is highly subjective/stigma attached a. Avoidance of: (Federal private Securities Reform Act of 1995) i. Stockholder “strike suits” XXIV)ii. Targeting deep pocket ∆s XXV)iii. Abuse of discovery process XXVI)iv. Manipulation by class-action lawyers n. Conditions Precedent (c) i. A denial of performance or occurrence shall be made specifically and with particularity 1. Otherwise it is sufficient to aver generally that all conditions precedent have been performed/occurred o. Official Document of Act (d) i. Sufficient to aver that the document was issued or the act was done in compliance with the law p. Judgment (e) i. Sufficient to aver the judgment or decision (of court, tribunal or board/officer) without setting forth the matter showing jx to render it q. Time and Place (f) i. Considered averments of material matter r. Special Damage (g) i. Shall be specifically stated s. Admiralty and Maritime Claims (h) XXVII) FRCP 10: Form of Pleadings t. (a) Caption; Names of Parties. i. Every pleading shall contain a caption setting forth the name of the court, the title of the action, the file number, and a designation as in Rule 7(a). XXVIII)ii. In the complaint the title of the action shall include the names of all the parties, but in other pleadings it is sufficient to state the name of the first party on each side with an appropriate indication of other parties. u. (b) Paragraphs; Separate Statements. i. All averments of claim or defense shall be made in numbered paragraphs, the contents of each of which shall be limited as far as practicable to a statement of a single set of circumstances; and a paragraph may be referred to by number in all succeeding pleadings. XXIX)ii. Each claim founded upon a separate transaction or occurrence and each defense other than denials shall be stated in a separate count or defense whenever a separation facilitates the clear presentation of the matters set forth. v. (c) Adoption by Reference; Exhibits. i. Statements in a pleading may be adopted by reference in a different part of the same pleading or in another pleading or in any motion. XXX)ii.A copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes. XXXI) FRCP 11: Signing of Pleadings, Motions, and other Papers; Representations to XXXII) Court; Sanctions w. Signature (a) required for every pleading, written motion or other pleading i. No requirement for verification or accompanying affidavit 1. If verification, responsive pleading must also be verified and must be answered specifically (general answer if no verification) x. Representations to Court (b) certify, after an inquiry reasonable under the circumstances, that the representation: 1. Affirmative [and continuing] duty to conduct a reasonable inquiry into the facts and the law before filing, and the applicable standard is one of reasonableness under the circumstances – Business Guides v. Chromatic Comm. i. Is not in improper purpose (harass, delay, increase cost) (1) XXXIII)ii. Is warranted by law or a non-frivolous argument for change in law (2) → No monetary sanctions per 11(c)(2)(A) XXXIV)iii. Has evidentiary support/likely to have to such support upon investigation/ discovery (3) XXXV)iv. Denials of contentions are warranted on the evidence or reasonably based on a lack of information/belief (4) y. Sanctions (c) may be imposed on attorneys, law firms or parties (often sanction all and let them figure it out) i. Initiation (1) 1. By Motion (A) – describe specific conduct a. Safe Harbor – Serve motion to offending party 21 days before filing to give opportunity to withdraw or correct i. Serves to facilitate communication, self-regulation and reduces volume of Rule 11 claims 2. On Court’s Initiative (B) – describe specific conduct and show cause ii. Nature of Sanction; Limitations (2) – limited to was is sufficient to dete repetition including directives, pay penalty to court, or pay reasonable expenses and attorney’s fees incurred as a result of the violation 1. No monetary sanctions for violation of 15(b)(2) – (A) XXXVI)2. No monetary sanctions on court’s initiative unless order to show cause issued before voluntary dismissal or settlement (B) iii. Order (3) must describe violating conduct and to explain basis for sanction imposed z. Inapplicability to Discovery (d) – Rule 11 does not apply to motions subject to provisions of Rules 26-37 XXXVII)aa. 28 USC §1927: Counsel’s Liability for Excessive Costs – attorney who multiplies the proceedings in any case unreasonably and vexatiously, may be required to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct i. Invokes the inherent power of the court to impose sanctions XXXVIII)ii. Applies to attorneys only (not parties as does Rule 11) and no “Safe Harbor” provision XXXIX)iii. Extreme sanction thus limited to truly egregious cases of misconduct – Ridder v. City of Springfield XL)iv. Before a court can order the imposition of attnys’ fees under §1927: 1. Court must find wilful bad faith on the part of the offending attny; and 2. Must be specific notice and the opportunity to be heard before sanctions are imposed --Zuk v. Eastern Pennsylvania Psychiatric Institute of Medical College of PA (3rd Circuit) XLI) FRCP 12: Defenses and Objections – When and How Presented – By Pleading or XLII) Motion – Motion for Judgment on the Pleadings a) When Presented (a) i. ∆ to serve an Answer (1) 1. within 20 days of service of Complaint (A) or within 60 days if service waived/ 90 days if outside US (B) ii. Party to serve an answer to a cross-claim or a reply to a counterclaim/reply by order of the court within 20 days (2) XLIII)iii. Times altered (4) 1. If motion denied, responsive pleading within 10 days (A) XLIV)2. If 12(e) motion for more definite statement granted, responsive pleading to be filed within 10 days of service of the more definite statement (B) b) How Presented (b) – every defense to any claim in any pleading must be asserted in the responsive pleading thereto, except the following can be made by motion: → Rule 12(h) i. Lack of subject matter jx (1) → Raised any time or by the court XLV)ii. Lack of personal jx (2) → Waived if not raised XLVI)iii. Improper venue (3) → Waived if not raised XLVII)iv. Insufficiency of process (4) → Waived if not raised XLVIII)v. Insufficiency of service of process (5) → Waived if not raised XLIX)vi. Failure to state a claim upon which relief can be granted (6) → Can be raised up to or during trial (not on appeal) 1. Can be raised in matters of a. Bad theory - American Nurses’s Assoc. (use of comparative worth theory – not illegal) L) b. Bad facts - Molaksy v. Garfinkle (must be purchaser or seller to have c/a) i. Other claims dismissed b/c of 1. Lack of jx → no prejudice, can be refiled LI) 2. Merits → prejudice, claim is dead c. Facts in complaint must be taken as true – no discretion of the court i. A compliant should not be dismissed for failure to state a claim unless it appears beyond a doubt that П can prove no set of facts in support of his claim which would entitle relief – Conley v. Gibson d. Can grant motion with leave to amend 2. Dismissal of a claim is appropriate when it is clear that no relief could be granted under any set of facts that could be proved consistent w/ the allegations. a. Access Now, Inc. v. Southwest Airlines Co. (FL dist. ct.)-- Пs failed to state a claim upon which relief can be granted b/c they failed to establish a nexus between the website (claimed to violate ADA b/c inaccessible to the blind) and a physical, concrete place of public accommodation; and b/c the website does not exist in any particular geographical location, Ps are unable to demonstrate that the website impedes their access to a specific, physical, concrete space such as a particular airline ticket counter or travel agency. vii. Failure to join a party under Rule 19 (7) → Can be raised up to or during trial (not on appeal) LII)viii. When filing Rule 12 motion, duty to answer is tolled 1. thus Rule 12 Motion can be filed for strategic reasons a. Answer may be preferable in order to: i. Take issues off the table LIII)ii. Public relations purposes c) Motion for Judgment on the Pleadings (c) i. After pleadings closed but within such time as not to delay trial LIV)ii. If matters outside the pleadings are presented and not excluded by the court, motion treated as Summary Judgment d) Preliminary Hearings (d) i. Above motions to be heard and determined before trial e) Motion for More Definite Statement (e) i. If pleading is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading. 1. Motion must point out the defects complained of and details desired LV)2. Court to use discretion in determining if too vague – Mitchell v. E-Z Way Towers, Inc. a. Still must comply with Rule 8 pleading standards i. Only need to plead with particularity if fraud f) Motion to Strike (f) i. By motion or by court, the court may order to be stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter g) Consolidation of Defenses in Motion (g) LVI)h) Waiver or Preservation of Certain Defenses (h) LVII) LVIII) FRCP 13: Counterclaim and Cross-claim – ways in which the ∆ may acquiesce, expand or contract the litigation boundaries set by П’s complaint. Judicial influence via rulings on motions or making own motion (compulsive, permissive and discretionary) a) Compulsory Counterclaims (a) – A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. i. But the pleader need not state the claim [non-compulsory] if: 1. at the time the action was commenced the claim was the subject of another pending action, or 2. the opposing party brought suit upon the claim by attachment of other process by which the court did not acquire jurisdiction to render a personal judgment on that claim, and the pleader is not stating any counterclaim under Rule 13. ii. Thus, if compulsory counterclaim not raised, it is waived 1. [Factual relationship required re: co-party cross-claims and third-party ∆ claims → 13(g)] iii. Broad interpretation of criteria for determining if “arises out of same transaction or occurrence” applies 1. Usually only need a logical relationship between claims in the interest of avoiding a multiplicity of suits – D’Agostino a. Determine the actual legal significance of the factors (ie interdependency, payment, etc.) 2. Need logical relationship between the counterclaim and the main claim, OR 3. The essential facts of the claims must be so logically connected that considerations of judicial economy and fairness dictate that all the issues be resolved in one law suit. - Jones (2nd Circuit) a. Jones is a looser standard than Gibbs - court should not decline to exercise supplemental jx from 1367(c) factors unless it also determines that doing so would not promote the values from Gibbs--economy, convenience, fairness and comity i. Gibbs = common nucleus of operative fact ii. 1367 = same case or controversy (more broad than Gibbs) iii. Jones = as long as they're factually related (even broader, lower standard) b. Jones v. Ford Motor Credit Co.- The relationship between the counterclaims and the ECOA claim is “logical” only in the sense that the sale, allegedly on discriminatory credit terms, was the “but for” cause of the non-payment of the loans. The essential facts for proving that the counterclaims and the ECOA claim are not so closely related that resolving both sets of issues in one lawsuit would yield judicial efficiency. Thus, these are permissive and not compulsory counterclaims. b) Permissive Counterclaims (b) – A pleading may state as a counterclaim any claim against an opposing party not arising out of the transaction or occurrence that is the subject matter of the opposing party’s claim. i. Rationale – judicial efficiency & supplemental jx kicks in to determine if claims can stay 1. If not brought now, permissive counterclaims can be brought in a future suit ii. Permissive claims must have independent basis for federal jx 1. Diversity or federal question a. Cannot satisfy Supplemental jx §1367 because permissive claim does not arise out of the same case or controversy i. Court cannot determine whether it has SMJx until it rules on class certification motion - Jones v. Ford Motor Credit Co. iii. [No factual relationship required re: claims and counterclaims between ∆ and П - Rule 18(a)] c) Counterclaim Exceeding Opposing Claim (c) – A counterclaim may or may not diminish or defeat the recovery sought by the opposing party. It may claim relief exceeding in amount or different in kind from that sought in the pleading of the opposing party. i. Thus different relief permissible d) Counterclaim Against the USA (d) - These rules shall not be construed to enlarge beyond the limits now fixed by law the right to assert counterclaims or to claim credits against the United States or an officer or agency thereof. e) Counterclaim Maturing or Acquired After Pleading (e) - A claim which either matured or was acquired by the pleader after serving a pleading may, with the permission of the court, be presented as a counterclaim by supplemental pleading. i. Means by which to bring a later claim – supplemental pleading f) Omitted Counterclaim (f) - When a pleader fails to set up a counterclaim through oversight, inadvertence, or excusable neglect, or when justice requires, the pleader may by leave of court set up the counterclaim by amendment. i. Means by which to bring a missed claim – amended pleading g) Cross-claim Against Co-party (g) - A pleading may state as a cross-claim any claim by one party against a co-party arising out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein or relating to any property that is the subject matter of the original action. i. Such cross-claim may include a claim that the party against whom it is asserted is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant. 1. [Claim to transfer responsibility] 2. If ∆ has a proper cross-claim against its co-∆ this gives the court ancillary jurisdiction even though all parties to cross-claim are citizens of the same state. The termination of the original claim would not affect this – Fairview Park Excavating Co. v. Al Monzo Construction (3rd Circuit) a. Distinction between dismissal on jurisdictional grounds and non-jurisdictional grounds (ie merits) i. Claims only stand or fall together if they are derivative (ie subject matter jurisdiction) ii. Established by Rule 13 because there is no prescribed order in which claims must be heard h) Joinder of Additional Parties (h) - Persons other than those made parties to the original action may be made parties to a counterclaim or cross-claim in accordance with the provisions of Rules 19 and 20. i. [Factual relationship is required – “arises out of…” – Rule 20] i) Separate Trials; Separate Judgments (i) - If the court orders separate trials as provided in Rule 42(b), judgment on a counterclaim or cross-claim may be rendered in accordance with the terms of Rule 54(b) when the court has jurisdiction so to do, even if the claims of the opposing party have been dismissed or otherwise disposed of. i. Purposes of complexity 1. Speeds up trial process, expedites settlement and improves the fairness of the outcome FRCP 14: Third-Party Practice [impleader] – permissive, never compulsory a) When ∆ may bring in a third party (a) i. Anytime after commencement of the action, a defending party, as a third-party П, may serve summons and complaint on a person not party to the action who is or may be liable to the third-party П for all or part of П’s claim against the third-party П 1. [∆ saying “actually, X is responsible, not me] I) 2. A ∆ is generally authorized to file a cross-complaint against a concurrent tortfeasor for partial indemnity on a comparative fault basis, even when such concurrent tortfeasor has not been named a ∆ in the original complaint – American Motorcycle Association v. Superior Court a. Impleader as a mechanism to enforce a substantial right (to indemnity) i. Severance is always an option to avoid prejudice to the П b. Third-party ∆ a derivative of original ∆ ii. Third-party П need not obtain leave to if complaint filed not later than 10 days after ∆/third-party П served the original answer. 1. Otherwise, third-party ∆ must obtain leave on motion upon notice to all parties iii. Third-party ∆ must make any Rule 12 defenses and any Rule 13 counterclaims against third-party П and cross-claims against other third-party ∆s. 1. Third-party ∆ may assert against the original П any defenses which the third-party П has to П’s claim iv. Third-party ∆ may also assert any claim against the П arising out of the same transaction or occurrence that is the subject of the П’s claim against the third- party П 1. The П may assert any claim against the third-party ∆ arising out of the same transaction or occurrence that is the subject matter of the П’s claim against the third-party П a. Thereupon, third-party ∆ shall assert any Rule 12 defenses and any Rule 13 counterclaims and cross-claims v. Any party may move to strike the third-party claim, or for its severance or separate trial vi. Third-party ∆ may proceed under this rule against any person not party to the action who is or may be liable to the third-party ∆ vii. Courts cannot read a cause of action for indemnity into statutes where no statutory basis exists for such a claim. Indemnification claims are permissible provided that the claims satisfy the requirements of Rule 14(a) and the substantive requirements of state law - Banks v. City of Emeryville (CA dist. ct.) a. Federal claims -- B/c the third-party ∆s did not act under color of state law, they could not be found to have violated §1983. Thus any claims against the third-party ∆ s based directly upon §1983, including claims for indemnification, were impermissible. b. State claims -- It is permissible to implead third-party ∆s even if there is no basis for the 3rd party ∆s to be directly liable to Пs. Since it is possible that the 3rd party ∆s may be all or partially liable to the ∆s for Пs’ claim against the ∆s, impleader is appropriate under Rule 14, and ∆s may seek indemnification based on their state law causes of action only. B/c state law permits both indemnification and contribution, and the requirements of 14(a) have been satisfied, ∆s have stated viable claims. b) When П may bring in a third party (b) - When a counterclaim is asserted against a plaintiff, the plaintiff may cause a third party to be brought in under circumstances which under this rule would entitle a defendant to do so. i. Same as 14(a) c) Admiralty and maritime claims (c) d) FRCP 14 excluded from §1367(b) – supplemental jx in diversity case e) Plaintiff cannot assert a claim against a 3rd party defendant when there is no independent basis for federal jx over that claim. i. Owen Equipment & Erection Co. v. Kroger - Federal district court did not have jx over Kroger’s lawsuit against Owen b/c the parties were not diverse--diversity of citizenship (§1332) not satisfied. Kroger could not originally have brought suit in federal court naming Owen and OPPD as codefendants, since citizens of Iowa would have been on both sides of the litigation. A П cannot defeat statutory requirement of complete diversity by simply suing only those ∆s who were of diverse citizenship and waiting for them to implead nondiverse ∆s. FRCP 15: Amended and Supplemental Pleadings a) Amendments (a) - pretrial i. Before responsive pleading filed – of right I) ii. If responsive pleading has been filed < 1. By leave of court – motion for leave to amend with reasons and preview/explanation II) 2. By stipulation – consent of adverse party iii. If party wants to amend and other party objects – burden on objecting party to show why an amendment would be prejudicial 1. prejudicial if discovery already closed – expensive III) 2. Amendments are encouraged b/c want to get it right at trial a. leave shall be freely given where justice so requires but not where it will be detrimental to speedy resolution or prejudice the other party – cannot materially alter the nature of the claim (no new issues) – Matarazzo v. Friendly Ice Cream Corp. b) Amendments to Conform to the Evidence (b) i. If evidence raised at trial to no objection, implied consent thus treated as though it had been pled (amend pleadings to conform later) 1. depends on what “justice requires” – balancing test with due diligence, should have known, etc. c) Relation Back of Amendments (c) to date of original pleading when: i. Permitted by law that provides the statute of limitations (state law) (1), or IV)ii. Claim or defense in amended pleading arose out of the conduct, transaction or occurrence set forth in original pleading (2), or V)iii. If changing the party or naming a party (3) 1. 15(c)(2) must be satisfied (arising out of), and VI) 2. Party to be brought in has notice within 120 days of action (A), and a. Impunity via agency etc. 3. Party to be brought in knew or should have known that, but for mistake re identity, the action would have brought against that party (B) (even if statute of limitations has run) a. Worthington v. Wilson (Central Ill. dist. ct., followed 7th Cir.) -- П's amended complaint does not relate back under Rule 15(c) b/c the amendment did not correct a “mistake”, but rather corrected a lack of knowledge at the time of the original complaint. Naming "Doe" for unknown party is not a mistake. d) Supplemental Pleadings (d) i. Pleadings that set forth transactions, occurrences or events which have happened since the date of the pleading sought to be supplemented 1. Permitted by leave of court - discretion I) FRCP 16: Pretrial Conferences; Scheduling; Management a) Pretrial Conferences; Objectives (a) i. Expediting disposition of action (1) II)ii. Establishing and continuing control (management) (2) III)iii. Discourage wasteful activities (3) IV)iv. Improve quality of trial (4) V)v. Facilitate settlement (5) b) Scheduling and Planning (b) – judge may limit time: i. To join parties and amend pleadings (1) VI)ii. To file motions (2) VII)iii. To complete discovery (3) VIII)iv. Judge may also modify times for disclosures (4) IX)v. Set dates for conferences and trial (5) X)vi. Any other matters appropriate (6) 1. Otherwise no modifications except upon showing of good cause and by leave of the judge c) Subjects for Consideration at Pretrial Conferences (c) i. Formulation/simplification of issues, amendments, admissions, limitations/restrictions, timing, discovery, identification of witnesses and documents, settlement, pending motions, special procedures, separate trial, evidence, and such other matters as may facilitate the just, speedy, and inexpensive disposition of the action (1-16) d) Final Pretrial Conference (d) to facilitate a plan for trial XI) e) Pretrial Orders (e) reciting action taken pursuant to conference i. Modification of such order only to prevent manifest injustice XII)ii. Pre-trial conference order governs trial and subsumes all previous pleadings 1. Thus during discovery and during pre-trial conference, must ensure that certain issues stay alive if party so desires – Rigby v. Beechcraft a. Frame discovery broadly or amend interrogatories f) Sanctions (f) i. Attorney may be ordered to pay reasonable expenses, including attorney’s fees for 1. (Party or Party’s Attorney) failure to obey order, no appearance, substantially unprepared, failure to participate in good faith XIII)2. Sanctions upon motion or judge’s own initiative a. Unless judge finds that the noncompliance was substantially justified or award would be unjust XIV)b. Judges cannot coerce parties to settle, they should only encourage settlement under the federal rules - Kothe v. Smith (2nd Cir.) - Although FRCP 16(c)(7) encouraged settlement of cases and 16(f) gave judge the power to impose sanctions, the judge abused the sanction power by imposing a sanction on appellant only for failure to settle before the first day of trial. XV) FRCP 17: Parties Plaintiff and Defendant; Capacity a) Real Party in Interest (a) i. Every action shall be prosecuted in the name of the real party in interest. 1. The meaning and object of the real party in interest principle embodied in Rule 17 is that the action must be brought by a person who possesses the right to enforce the claim and who has a significant interest in the litigation – Virginia Electric & Power Co. v. Westinghouse Electric Corp. a. Serves to liberalize party rules and protect ∆s from subsequent litigation XVI)b. “Rule 17 as a barnacle on the federal practice ship” ii. An executor, administrator, guardian, bailee, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party authorized by statute may sue in that person's own name without joining the party for whose benefit the action is brought; 1. and when a statute of the United States so provides, an action for the use or benefit of another shall be brought in the name of the United States. iii. No action shall be dismissed on the 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 of commencement of the action by, or joinder or substitution of, the real party in interest; 1. and such ratification, joinder, or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest. b) Capacity to Sue or Be Sued (b) i. The capacity of an individual, other than one acting in a representative capacity, to sue or be sued shall be determined by the law of the individual's domicile. 1. The capacity of a corporation to sue or be sued shall be determined by the law under which it was organized. XVII)2. In all other cases capacity to sue or be sued shall be determined by the law of the state in which the district court is held, a. Except (1) that a partnership or other unincorporated association, which has no such capacity by the law of such state, may sue or be sued in its common name for the purpose of enforcing for or against it a substantive right existing under the Constitution or laws of the United States, and (2) that the capacity of a receiver appointed by a court of the United States to sue or be sued in a court of the United States is governed by Title 28, U.S.C., §§ 754 and 959(a). c) Infants or Incompetent Persons (c) i. Whenever an infant or incompetent person has a representative, such as a general guardian, committee, conservator, or other like fiduciary, the representative may sue or defend on behalf of the infant or incompetent person. XVIII)ii. An infant or incompetent person who does not have a duly appointed representative may sue by a next friend or by a guardian ad litem. 1. The court shall appoint a guardian ad litem for an infant or incompetent person not otherwise represented in an action or shall make such other order as it deems proper for the protection of the infant or incompetent person. XIX) FRCP 18: Joinder of Claims and Remedies a) Joinder of Claims (a) i. A party asserting a claims to relief as an original claim, counterclaim, cross-claim, or third-party claim, may join, either as independent or as alternate claims, as many claims, legal, equitable, or maritime, as the party has against an opposing party 1. [Any and all claims] XX)2. Example a. If ∆1 impleads ∆2, ∆1 can bring all claims he has against ∆2 i. And ∆2 can counterclaim all claims against ∆1 as well b) Joinder of Remedies; Fraudulent Conveyances (b) i. Whenever a claim is one heretofore cognizable only after another claim has been prosecuted to a conclusion, the two claims may be joined in a single action; 1. but the court shall grant relief in that action only in accordance with the relative substantive rights of the parties a. In particular, a П may state a claim for money and a claim to have set aside a conveyance fraudulent as to that П, without first having obtained a judgment establishing the claim for money XXI) FRCP 19: Joinder of Persons Needed for Just Adjudication a) Persons to Be Joined if Feasible (a) i. A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in the person's absence complete relief cannot be accorded among those already parties, or XXII)(2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person's absence may (i) as a practical matter impair or impede the person's ability to protect that interest or XXIII)(ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest. 3. If the person has not been so joined, the court shall order that the person be made a party. a. If the person should join as a plaintiff but refuses to do so, the person may be made a defendant, or, in a proper case, an involuntary plaintiff. XXIV)b. If the joined party objects to venue and joinder of that party would render the venue of the action improper, that party shall be dismissed from the action. 4. Joint tortfeasors are never indispensible. It is not necessary for all joint tortfeasors to be named as ∆s in a single suit. Temple v. Synthes Corp. - Joinder improper b/c threshold requirements of 19(a) have not been satisfied. As potential joint tortfeasors w/ Synthes, the doctor and hospital were merely permissive parties. b) Determination by Court Whenever Joinder Not Feasible (b) i. If a person as described in subdivision (a)(1)-(2) hereof cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable. 1. The factors to be considered by the court [balancing test] include: a. first, to what extent a judgment rendered in the person's absence might be prejudicial to the person or those already parties; XXV)b. second, the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; XXVI)c. third, whether a judgment rendered in the person's absence will be adequate; XXVII)d. fourth, whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder. i. Example in Tell et al. v. Trustees of Dartmouth College where Alumni Association found to be an indispensable party ant not joinable because of diversity jx 1. Parties availed of alternate forum (state court), thus suit dismissed XXVIII)2. Court is to be very cautious in concluding that a litigant will serve as a proxy for an absent party 2. A person does not become indispensable to an action to determine rights under a contract simply b/c that person’s rights or obligations under an entirely separate contract will be affected by the result of the action; must balance all factors above a. Helzberg’s Diamond Shops v. Valley West Des Moines Shopping Ctr (8th Circuit) - Tenant was not indispensible and thus was a party to be joined if feasible. Not indispensible b/c none of T’s rights or obligations will have been adjudicated as a result of the proceedings, to which it is not a party, and thus T’s will not be prejudiced; T’s absence will not prejudice VW; Court sufficiently protected T’s interests when it gave T’s opportunity to protect any interest it might have in the outcome of the litigation, and T chose not to intervene. c) Pleading Reasons for Nonjoinder (c) i. A pleading asserting a claim for relief shall state the names, if known to the pleader, of any persons as described in subdivision (a)(1)-(2) hereof who are not joined, 1. and the reasons why they are not joined. d) Exception of Class Actions (d) i. This rule is subject to the provisions of Rule 23 e) FRCP 19 limited by §1367(b) – supplemental jx i. No supp. Jx if diversity, yes supp jx if fed question (§1367(a)) ** (get flow chart from library computer--print out!!) FRCP 20: Permissive Joinder of Parties a) Permissive Joinder (a) i. All persons may join in one action as plaintiffs if 1. they assert any right to relief jointly, severally, or in the alternative a. in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences I) b. and if any question of law or fact common to all these persons will arise in the action. ii. All persons (and any vessel, cargo or other property subject to admiralty process in rem) may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative, 1. any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences a. this been interpreted to permit all reasonably related claims for relief by or against different parties to be tried in a single proceeding. i. Kedra v. City of Philadelphia (PA dist. ct.) - Joinder of ∆s proper b/c, although the events giving rise to П's claims occurred over a lengthy time period, they are all “reasonably related” and thus “arise out of the same transaction.” 2. and if any question of law or fact common to all defendants will arise in the action. a. A count sufficient within itself may not ordinarily be defeated by importing, from another count, an allegation to which the sufficient count makes no allegation – Lambert v. Southern Counties Gas Co. i. Exception exists if the allegations of one count have been considered in connection with allegations of another count in ruling on a demurrer if based on the same set of facts and the same ∆/ ∆s I) ii. Right of П to set forth multiple causes of action in one complaint II)iii. A plaintiff or defendant need not be interested in obtaining or defending against all the relief demanded. iv. Judgment may be given for one or more of the plaintiffs according to their respective rights to relief, and against one or more defendants according to their respective liabilities. b) Separate Trials (b) i. The court may make such orders as will prevent a party from being embarrassed, delayed, or put to expense by the inclusion of a party against whom the party asserts no claim and who asserts no claim against the party, 1. and may order separate trials or make other orders to prevent delay or prejudice c) FRCP 20 excluded from §1367(b) – supplemental jx III) FRCP 21: Misjoinder and Non-Joinder of Parties a) Misjoinder of parties is not ground for dismissal of an action. IV) b) Parties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just V) c) Any claim against a party may be severed and proceeded with separately. VI) FRCP 22: Interpleader (1) Persons having claims against the plaintiff may be joined as defendants and required to interplead when their claims are such that the plaintiff is or may be exposed to double or multiple liability. i. It is not ground for objection to the joinder 1. that the claims of the several claimants or the titles on which their claims depend do not have a common origin or are not identical but are adverse to and independent of one another, or VII)2. that the plaintiff avers that the plaintiff is not liable in whole or in part to any or all of the claimants. ii. A defendant exposed to similar liability may obtain such interpleader by way of cross-claim or counterclaim. VIII)iii. The provisions of this rule supplement and do not in any way limit the joinder of parties permitted in Rule 20. (2) The remedy herein provided is in addition to and in no way supersedes or limits the remedy provided by Title 28, U.S.C. §§ 1335, 1397, and 2361. i. Actions under those provisions shall be conducted in accordance with these rules. ** [Interpleader is a special joinder device that allows a stakeholder to obtain a judicial IX) determination that he owes an obligation to one of several competing interests 1. Multiples claimants and limited funds – State Farm Fire and Casualty Co. v. Tashire i. “Calling all cars” – where П State Farm would otherwise be a ∆ (a) Deposit money in court and asks court to determine which of the competing claimants is entitled to the money (1) Avoids multiple lawsuits in multiple forums ii. Limited to special circumstances (a) Not applicable in mass tort actions 2. Choice between Rule 22 (default) and §1335 (Interpleader) i. Comparison (a) Subject Matter Jurisdiction i. 22 – complete diversity and amount in controversy requirements X)ii. 1335 – minimal diversity (b) Personal Jurisdiction i. 22 – State rules and due process test (International Shoe) XI)ii. 1335 – Anyone within the USA (c) Venue i. 22 – Where ∆/claimant resides, where occurrence took place, where ∆ is subject to personal jx XII)ii. 1335 – where one or more claimant resides (d) Injunction i. 22 – Anti-injunction Act where federal courts cannot enjoin state court action a. potential exception acts in same way as in 1335 ii. 1335 – can enjoin state or federal court actions (e) Payment i. 22 – Not required but paid in practice XIII)ii. 1335 – Deposit amount/post bond Rule 22 § 1335 SMJx § 1332 -- Complete Minimal diversity 2 claimants diversity and amount in Amount in controversy: $500 controversy requirements -Stakeholder v. claimants -Amount in controversy: $75K Personal jx -Rule 4 - default rule Nationwide PJx -State rules and due process test (International Shoe) Venue § 1391 -- Where Any district where 1 or more D/claimant resides, where claimants reside – § 1397 occurrence took place, where D is subject to Pjx Injunction Anti-injunction Act where Can enjoin state or federal court federal courts cannot actions enjoin state court action -- potential exception acts in same way as in 1335 Payment Not required but paid in Deposit amount/post bond practice FRCP 23: Class Actions (a) Prerequisites to a Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all only if: (1) the class is so numerous that joinder of all members is impracticable, (economies of scale) [numerosity] I) (2) there are questions of law or fact common to the class, (economies of scale)[commonality--common question of law or fact] II) (3) the claims or defenses of the representative parties are typical of the claims defenses of the class, and [typicality--class rep has claims that are typical of every class member] (4) the representative parties will fairly and adequately protect the interests of the class. (representativeness) [representation – class rep and attny will adequately represent every class member] 1. Hansberry v. Lee – With limited exceptions, one is not bound by a judgment in personum in litigation in which he is not a party a. Exception if adequately represented as a member of a class 2. Dalkan Shield – Must satisfy all four requirements III) 3. Rule designed to protect: a. Absent parties from binding decisions, and IV) b. Defendants from inconsistent decisions (b) Class Actions Maintainable. An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition: (1) the prosecution of separate actions by or against individual members of the class would create a risk of: (A) inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or V) (B) adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or a. [Limited fund situation] VI) b. No need for notice (Plaintiff likes) and mandatory inclusion (Defendant likes) i. Although constructive bankruptcy for defendant c. Limited fund theory requires a showing that fund is limited independently of agreement by parties – Ortiz v. Fibreboard (2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or 1. [Civil rights situation] (3) the court finds that the questions of law or fact common to the members of the class [higher standard] [predominance and superiority] 1. Predominate over any questions affecting only individual members, and a. Court must consider: (1) how variations in state law affect predominance and superiority; and VII)(2) how a trial on the merits would be conducted - Castano v. American Tobacco Company (5th Circuit) 2. That a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include: (A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; i. Dalkan Shield – certification inappropriate for mass tort situations where litigants have greater interest in controlling their own litigation and individual issues outnumber common issues 1. Better to consolidate for discovery then remand for separate trials ii. Expensive for Plaintiffs - cost of notice VIII)iii. Allows for suits to brought that would otherwise not be (small amount) (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; IX) (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; X) (D) the difficulties likely to be encountered in the management of a class action. 3. In damage class actions, the easier cases for predominance are those where both D's conduct towards class members and the response of class members is uniform or highly standarized, and thus susceptible to common proof. i. Chandler v. Southwest Jeep-Eagle, Inc.(Illinois dist. ct.) - П successfully sought certification under 23(b)(3). 23(b) Overview 23(b) - What type of class: 23(b)(1)(A) - mandatory - injunctive relief 23(b)(1)(B) - mandatory - injunctive - limited fund: when Ps are after a true limited fund, there is finite asset that multiple Ps are fighting over–to make sure there is an equal and fair allocation of the fund. 23(b)(2) - mandatory - injunctive 23(b)(3) - opt out 1. mass tort, or 2. cheap claim - there are many $100 claims, but litigant won’t want to litigate just for their little $100 claim (c) Determining by Order Whether to Certify a Class Action; Appointing Class Counsel; Notice and Membership in Class; Judgment; Multiple Classes and Subclasses. I) ** Two step analysis to determine whether class certification is appropriate: 1. Action must satisfy all 4 requirements of 23(a) [numerosity, commonality, typicality, and adequacy of representation]; and if all satisfied, 2. Action must satisfy one of the conditions of Rule 23(b). (1) Whether to Certify a Class Action (A) When a person sues or is sued as a representative of a class, the court must - at an early practicable time - determine by order whether to certify the action as a class action. II) (B) An order certifying a class action must define the class and the class claims, issues, or defenses, and must appoint class counsel under Rule 23(g). III) (C) An order under Rule 23(c)(1) may be altered or amended before final judgment. a. [permits appeal] (2) Notice and Membership (A) For any class certified under Rule 23(b)(1) or (2), the court may direct appropriate notice to the class. IV) (B) For any class certified under Rule 23(b)(3), the court must direct to class members the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. The notice must concisely and clearly state in plain, easily understood language: a. the nature of the action, V) b. the definition of the class certified, VI) c. the class claims, issues, or defenses, VII)d. that a class member may enter an appearance through counsel if the member so desires, VIII)e. that the court will exclude from the class any member who requests exclusion, stating when and how members may elect to be excluded, and i. [Opt-out] f. the binding effect of a class judgment on class members under Rule 23(c)(3). IX) g. Eisen v. Carlisle & Jacquelin - Notice is fundamental to due process (because of binding nature), not discretionary i. Plaintiff must pay for notice as part of the burden of financing his own suit (3) The judgment in an action maintained as a class action under subdivision (b)(1) or (b)(2), whether or not favorable to the class, shall include and describe those whom the court finds to be members of the class. 1. The judgment in an action maintained as a class action under subdivision (b)(3), whether or not favorable to the class, shall include and specify or describe those to whom the notice provided in subdivision (c)(2) was directed, and who have not requested exclusion, and whom the court finds to be members of the class. (4) When appropriate (A) an action may be brought or maintained as a class action with respect to particular issues, or X) (B) a class may be divided into subclasses and each subclass treated as a class, and the provisions of this rule shall then be construed and applied accordingly. a. Each sub-class must have separate counsel (inherent conflict of interest) i. Process complicated because counsel must agree (d) Orders in Conduct of Actions. In the conduct of actions to which this rule applies, the court may make appropriate orders: (1) determining the course of proceedings or prescribing measures to prevent undue repetition or complication in the presentation of evidence or argument; XI) (2) requiring, for the protection of the members of the class or otherwise for the fair conduct of the action, that notice be given in such manner as the court may direct 1. to some or all of the members of any step in the action, or XII)2. of the proposed extent of the judgment, XIII)3. or of the opportunity of members to signify whether they consider the representation fair and adequate, to intervene and present claims or defenses, or otherwise to come into the action; (3) imposing conditions on the representative parties or on intervenors; (4) requiring that the pleadings be amended to eliminate therefrom allegations as to representation of absent persons, and that the action proceed accordingly; XIV)(5) dealing with similar procedural matters. The orders may be combined with an order under Rule 16, and may be altered or amended as may be desirable from time to time. (e) Settlement, Voluntary Dismissal, or Compromise. (1) (A) The court must approve any settlement, voluntary dismissal, or compromise of the claims, issues, or defenses of a certified class. a. Saylor v. Lindsley (2nd Cir.) – Attorney remains bound to keep client informed and advised before stipulated settlement i. Judge to have apprised himself of all facts necessary for an intelligent and objective opinion of the probabilities of ultimate success should the claim be litigated XV)ii. Where Plaintiff and attorney have incongruent interests, the court must exercise particular care to see that the non-assenting plaintiff has had a full opportunity to develop the basis for his objection (B) The court must direct notice in a reasonable manner to all class members who would be bound by a proposed settlement, voluntary dismissal, or compromise XVI)(C) The court may approve a settlement, voluntary dismissal, or compromise that would bind class members only after a hearing and on finding that the settlement, voluntary dismissal, or compromise is fair, reasonable, and adequate. a. Determination based on settlement conferences, prevent collusion between attorneys (keep it adversarial), malpractice concerns re: notice and disparity (2) The parties seeking approval of a settlement, voluntary dismissal, or compromise under Rule 23(e)(1) must file a statement identifying any agreement made in connection with the proposed settlement, voluntary dismissal, or compromise. 1. Amchem – For class actions seeking conditional certification (ie for settlement purposes only), class must still meet all the requirements of 23(a) and (b) as safeguards and 23(e) as an additional requirement (3) In an action previously certified as a class action under Rule 23(b)(3), the court may refuse to approve a settlement unless it affords a new opportunity to request exclusion to individual class members who had an earlier opportunity to request exclusion but did not do so. a. Second chance to opt out i. Serves as an indication to court as to adequacy of settlement 1. amounts may be tiered depending on how may plaintiffs opt out (4) (A) Any class member may object to a proposed settlement, voluntary dismissal, or compromise that requires court approval under Rule 23(e)(1)(A). a. Saylor v. Lindsley (2nd Cir.) - Assent of plaintiff bringing derivation suit is not essential to settlement – focus on best interest of corporation (B) An objection made under Rule 23(e)(4)(A) may be withdrawn only with the court's approval. (f) Appeals. i. A court of appeals may in its discretion permit an appeal from an order of a district court granting or denying class action certification under this rule if application is made to it within ten days after entry of the order. An appeal does not stay proceedings in the district court unless the district judge or the court of appeals so orders. 1. [Allows interlocutory appeals] a. Important because of “death nail” for both parties i. If certification denied – Plaintiff’s claim is dead; XVII)ii. If certification granted – Defendants must settle (g) Class Counsel. (1) Appointing Class Counsel. (A) Unless a statute provides otherwise, a court that certifies a class must appoint class counsel. XVIII)(B) An attorney appointed to serve as class counsel must fairly and adequately represent the interests of the class. XIX)(C) In appointing class counsel, the court (i) must consider: i. the work counsel has done in identifying or investigating potential claims in the action, XX)ii. counsel's experience in handling class actions, other complex litigation, and claims of the type asserted in the action, XXI)iii. counsel's knowledge of the applicable law, and XXII)iv. the resources counsel will commit to representing the class; (ii) may consider any other matter pertinent to counsel's ability to fairly and adequately represent the interests of the class; XXIII)(iii) may direct potential class counsel to provide information on any subject pertinent to the appointment and to propose terms for attorney fees and nontaxable costs; and XXIV)(iv) may make further orders in connection with the appointment. (2) Appointment Procedure. (A) The court may designate interim counsel to act on behalf of the putative class before determining whether to certify the action as a class action. XXV)(B) When there is one applicant for appointment as class counsel, the court may appoint that applicant only if the applicant is adequate under Rule 23(g)(1)(B) and (C). a. If more than one adequate applicant seeks appointment as class counsel, the court must appoint the applicant best able to represent the interests of the class. (C) The order appointing class counsel may include provisions about the award of attorney fees or nontaxable costs under Rule 23(h). (h) Attorney Fees Award i. In an action certified as a class action, the court may award reasonable attorney fees and nontaxable costs authorized by law or by agreement of the parties as follows: (1) Motion for Award of Attorney Fees. a. A claim for an award of attorney fees and nontaxable costs must be made by motion under Rule 54(d)(2), subject to the provisions of this subdivision, at a time set by the court. Notice of the motion must be served on all parties and, for motions by class counsel, directed to class members in a reasonable manner. (2) Objections to Motion. a. A class member, or a party from whom payment is sought, may object to the motion. (3) Hearing and Findings. a. The court may hold a hearing and must find the facts and state its conclusions of law on the motion under Rule 52(a). (4) Reference to Special Master or Magistrate Judge. a. The court may refer issues related to the amount of the award to a special master or to a magistrate judge as provided in Rule 54(d)(2)(D). New Laws i. Incentive for attorneys to settle for money rather than economic value of scrp/coupons I) ii. Class Actions and subject matter jx -- Diversity Jurisdiction (1332) II) a. One claim must meet the amount in controversy (Exxon) b. Class Action Fairness Act (inserted into 1332) - Federal jx via diversity amended: 1. If greater than 2/3 members of forum state → state court III) 2. If 1/3 to 2/3 members of forum state → discretion to remove IV) 3. If less than 1/3 members of forum stat → must go to federal court V) FRCP 23.1: Derivative Actions by Shareholders a) In a derivative action brought by one or more shareholders or members to enforce a right of a corporation or of an unincorporated association, the corporation or association having failed to enforce a right which may properly be asserted by it, the complaint shall be verified and shall allege (1) that the plaintiff was a shareholder or member at the time of the transaction of which the plaintiff complains or that the plaintiff's share or membership thereafter devolved on the plaintiff by operation of law, and (2) that the action is not a collusive one to confer jurisdiction on a court of the United States which it would not otherwise have. b) The complaint shall also allege with particularity the efforts, if any, made by the plaintiff to obtain the action the plaintiff desires from the directors or comparable authority and, if necessary, from the shareholders or members, and the reasons for the plaintiff's failure to obtain the action or for not making the effort. c) The derivative action may not be maintained if it appears that the plaintiff does not fairly and adequately represent the interests of the shareholders or members similarly situated in enforcing the right of the corporation or association. d) The action shall not be dismissed or compromised without the approval of the court, and notice of the proposed dismissal or compromise shall be given to shareholders or members in such manner as the court directs. FRCP 24: Intervention a) Intervention of Right (a) i. Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of the United States confers an unconditional right to intervene; or I) (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action a. and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, i. unless the applicant's interest is adequately represented by existing parties. 1. Intervention of right when party could also be joined as a ∆ under Rule 19(a)(2)(i) re: impaired ability to protect interest – Atlantis Development Corp v. USA (5th Cir.) a. Interests not represented when intervenor is adverse to both parties II) b. Issue of res judicata and stare decisis essentially binds a non-party who may become a ∆ in a later suit (3) In the interest of fairness and to insure the maximum involvement by all responsible interested and affected persons, the proper exercise of discretion would have to been to permit a party to intervene as it represents a proper and legitimate interest, to participate in the fashioning of any decree which may result in mandatory reassignment of students – Bustop v. Superior Ct (CA state appeals court) a. No floodgates of litigation because limiting factor that parties must not be represented i. Intervening parties take the litigation where they find it 4. Intervention of right is appealable b) Permissive Intervention (b) i. Upon timely application anyone may be permitted to intervene in an action: (1) when a statute of the United States confers a conditional right to intervene; or III) (2) when an applicant's claim or defense and the main action have a question of law or fact in common. IV) ** When a party to an action relies for ground of claim or defense upon any statute or executive order administered by a federal or state governmental officer or agency or upon any regulation, order, requirement, or agreement issued or made pursuant to the statute or executive order, the officer or agency upon timely application may be permitted to intervene in the action V) ** In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties. a. [Court’s discretion] ** Permissive intervention is non-appealable c) Procedure (c) i. A person desiring to intervene shall serve a motion to intervene upon the parties as provided in Rule 5. 1. The motion shall state the grounds therefor and shall be accompanied by a pleading setting forth the claim or defense for which intervention is sought. VI) 2. The same procedure shall be followed when a statute of the United States gives a right to intervene. VII)3. When the constitutionality of an act of Congress affecting the public interest is drawn in question in any action in which the United States or an officer, agency, or employee thereof is not a party, the court shall notify the Attorney General of the United States as provided in Title 28, U.S.C. §2403. VIII)4. When the constitutionality of any statute of a State affecting the public interest is drawn in question in any action in which that State or any agency, officer, or employee thereof is not a party, the court shall notify the attorney general of the State as provided in Title 28, U.S.C. § 2403. IX) 5. A party challenging the constitutionality of legislation should call the attention of the court to its consequential duty, but failure to do so is not a waiver of any constitutional right otherwise timely asserted. d) FRCP 24 excluded from §1367(b) – supplemental jx X) Pre-Trial Procedures [Rules 26-37, 45] XI) XII) FRCP 26: General Provisions Governing Discovery: Duty of Disclosure (a) Required Disclosures; Methods to Discover Additional Matter. (1) Initial Disclosures. Except in categories of proceedings specified in Rule 26(a)(1)(E), or to the extent otherwise stipulated or directed by order, a party must, without awaiting a discovery request, provide to other parties: (A) the name and, if known, the address and telephone number of each individual likely to have discoverable information that the disclosing party may use to support its claims or defenses, unless solely for impeachment, identifying the subjects of the information; XIII)(B) a copy of, or a description by category and location of, all documents, electronically stored information, and tangible things that are in the possession, custody, or control of the party and that the disclosing party may use to support its claims or defenses, unless solely for impeachment; XIV)(C) a computation of any category of damages claimed by the disclosing party, making available for inspection and copying as under Rule 34 the documents or other evidentiary material, not privileged or protected from disclosure, on which such computation is based, including materials bearing on the nature and extent of injuries suffered; and XV)(D) for inspection and copying as under Rule 34 any insurance agreement under which any person carrying on an insurance business may be liable to satisfy part or all of a judgment which may be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment. XVI)(E) The following categories of proceedings are exempt from initial disclosure under Rule 26(a)(1): (i) an action for review on an administrative record; XVII)(ii) a forfeiture action in rem arising from a federal statute; XVIII)(iii) a petition for habeas corpus or other proceeding to challenge a criminal conviction or sentence; XIX)(iv) an action brought without counsel by a person in custody of the United States, a state, or a state subdivision; XX)(v) an action to enforce or quash an administrative summons or subpoena XXI)(vi) an action by the United States to recover benefit payments; XXII)(vii) an action by the United States to collect on a student loan guaranteed by the United States; XXIII)(viii) a proceeding ancillary to proceedings in other courts; and XXIV)(ix) an action to enforce an arbitration award. ** These disclosures must be made at or within 14 days after the Rule 26(f) conference unless a different time is set by stipulation or court order, or unless a party objects during the conference that initial disclosures are not appropriate in the circumstances of the action and states the objection in the Rule 26(f) discovery plan. In ruling on the objection, the court must determine what disclosures - if any - are to be made, and set the time for disclosure. Any party first served or otherwise joined after the Rule 26(f) conference must make these disclosures within 30 days after being served or joined unless a different time is set by stipulation or court order. A party must make its initial disclosures based on the information then reasonably available to it and is not excused from making its disclosures because it has not fully completed its investigation of the case or because it challenges the sufficiency of another party's disclosures or because another party has not made its disclosures. (2) Disclosure of Expert Testimony. (A) In addition to the disclosures required by paragraph (1), a party shall disclose to other parties the identity of any person who may be used at trial to present evidence under Rules 702, 703, or 705 of the Federal Rules of Evidence. XXV)(B) Except as otherwise stipulated or directed by the court, this disclosure shall, with respect to a witness who is retained or specially employed to provide expert testimony in the case or whose duties as an employee of the party regularly involve giving expert testimony, be accompanied by a written report prepared and signed by the witness. The report shall contain a complete statement of all opinions to be expressed and the basis and reasons therefor; the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions; a. the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; the compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years. (C) These disclosures shall be made at the times and in the sequence directed by the court. In the absence of other directions from the court or stipulation by the parties, the disclosures shall be made at least 90 days before the trial date or the date the case is to be ready for trial or, if the evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party under paragraph (2)(B), within 30 days after the disclosure made by the other party. The parties shall supplement these disclosures when required under subdivision (e)(1). (3) Pretrial Disclosures. In addition to the disclosures required by Rule 26(a)(1) and (2), a party must provide to other parties and promptly file with the court the following information regarding the evidence that it may present at trial other than solely for impeachment: (thus no requirement to disclose the “smoking gun” because disclosing party would not present it at trial) (A) the name and, if not previously provided, the address and telephone number of each witness, separately identifying those whom a. the party expects to present and XXVI)b. those whom the party may call if the need arises; (B) the designation of those witnesses whose testimony is expected to be presented by means of a deposition and, if not taken stenographically, a transcript of the pertinent portions of the deposition testimony; and XXVII)(C) an appropriate identification of each document or other exhibit, including summaries of other evidence, separately identifying a. those which the party expects to offer and XXVIII)b. those which the party may offer if the need arises. ** Unless otherwise directed by the court, these disclosures must be made at least 30 days before trial. a. Within 14 days thereafter, unless a different time is specified by the court, a party may serve and promptly file a list disclosing (i) any objections to the use under Rule 32(a) of a deposition designated by another party under Rule 26(a)(3)(B), and (ii) any objection, together with the grounds therefor, that may be made to the admissibility of materials identified under Rule 26(a)(3)(C). 1. Objections not so disclosed, other than objections under Rules 402 and 403 of the Federal Rules of Evidence, are waived unless excused by the court for good cause. (4) Form of Disclosures; 1. Unless the court orders otherwise, all disclosures under Rules 26(a)(1) through (3) must be made in writing, signed, and served. (5) Methods to Discover Additional Matter. 1. Parties may obtain discovery by one or more of the following methods: a. depositions upon oral examination or written questions; XXIX)b. written interrogatories; XXX)c. production of documents or things or permission to enter upon land or other property under Rule 34 or 45(a)(1)(C), for inspection and other purposes; XXXI)d. physical and mental examinations; and XXXII)e. requests for admission. (b) Discovery Scope and Limits. Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows: (1) In General. 1. Parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party, a. including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and XXXIII)b. the identity and location of persons having knowledge of any discoverable matter. 2. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. a. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. i. All discovery is subject to the limitations imposed by Rule 26(b)(2)(i), (ii), and (iii). 1. [See below] (2) Limitations. (A) By order, the court may alter the limits in these rules on the a. number of depositions and interrogatories or the length of depositions under Rule 30. XXXIV)b. By order or local rule, the court may also limit the number of requests under Rule 36. (B) A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible b/c of undue burden or cost. a. On motion to comepl discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible b/ of undue burden or cost. i. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). ii. The court may specify conditions for the discovery. (C) The frequency or extent of use of the discovery methods otherwise permitted under these rules and by any local rule shall be limited by the court if it determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; XXXV)(ii) the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; or XXXVI)(iii) the burden or expense of the proposed discovery outweighs its likely benefit, i. taking into account the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues. XXXVII)ii. The court may act upon its own initiative after reasonable notice or pursuant to a motion under Rule 26(c). (3) Trial Preparation: Materials. 1. Subject to the provisions of subdivision (b)(4) of this rule, a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party's case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. a. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation. i. Work Product Doctrine (Overcome with showing of undue hardship) 1. Protects attorney work product which falls outside the arena of discovery and contravenes public policy underlying the orderly prosecution and defense of legal claims – Hickman v. Taylor a. lawyer as officer of the court and requiring disclosure would have a demoralizing effect ii. Attorney–Client Privilege (Absolute) 1. Promotes the broader public interest in the observance of law and the administration of justice – Upjohn a. Control group test too narrow making it difficult for lawyers to formulate sound advice when threat of limitation of counsel’s ability to ensure legal compliance i. Thus privilege extended to include all employees b. Must be able to predict with some certainty whether discussions will be protected 2. The facts themselves are not privileged, just the communications with the attorney XXXVIII)3. Exceptions a. Furtherance of crime or fraud, breach of duty, attested documents, joint clients, or same deceased client 2. A party may obtain without the required showing a statement concerning the action or its subject matter previously made by that party. a. Upon request, a person not a party may obtain without the required showing a statement concerning the action or its subject matter previously made by that person. If the request is refused, the person may move for a court order. The provisions of Rule 37(a)(4) apply to the award of expenses incurred in relation to the motion. XXXIX)b. For purposes of this paragraph, a statement previously made is (A) a written statement signed or otherwise adopted or approved by the person making it, or XL)(B) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement by the person making it and contemporaneously recorded. (4) Trial Preparation: Experts. (A) A party may depose any person who has been identified as an expert whose opinions may be presented at trial. a. If a report from the expert is required under subdivision (a)(2)(B), the deposition shall not be conducted until after the report is provided. (B) A party may, through interrogatories or by deposition, discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only a. as provided in Rule 35(b) or XLI)b. upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means. (C) Unless manifest injustice would result, (i) the court shall require that the party seeking discovery pay the expert a reasonable fee for time spent in responding to discovery under this subdivision; and XLII)(ii) with respect to discovery obtained under subdivision (b)(4)(B) of this rule the court shall require the party seeking discovery to pay the other party a fair portion of the fees and expenses reasonably incurred by the latter party in obtaining facts and opinions from the expert. i. Exceptional circumstances re: info from expert not to expected to be called as a witness at trial ** Focus on qualifications of experts/pedigree (5) Claims of Privilege or Protection of Trial Preparation Materials. (A) Information Withheld XLIII) When a party withholds information otherwise discoverable under these rules by claiming that it is privileged or subject to protection as trial preparation material, a. the party shall make the claim expressly and XLIV)b. shall describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, i. will enable other parties to assess the applicability of the privilege or protection. (B) Information Produced If information is produced in discovery that is subject to a claim of priviliege or of protection as trial-preparation material, the party making the claim may notify any party that received the information of the claim and the basis for it. a. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has and may not use or disclose the information until the claim is resolved. XLV)b. A receiving party may promptly present the information to the court under seal for a determination of the claim. XLVI)c. If the receiving party disclosed the information before being notified, it must take reasonably steps to retrieve it. XLVII)d. The producing party must preserve the information until the claim is resolved. (c) Protective Orders. i. Upon motion by a party or by the person from whom discovery is sought, accompanied by a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action, and for good cause shown, the court in which the action is pending or alternatively, on matters relating to a deposition, the court in the district where the deposition is to be taken may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: (1) that the disclosure or discovery not be had; XLVIII)(2) that the disclosure or discovery may be had only on specified terms and conditions, including a designation of the time or place; XLIX)(3) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery; L) (4) that certain matters not be inquired into, or that the scope of the disclosure or discovery be limited to certain matters; LI) (5) that discovery be conducted with no one present except persons designated by the court; LII)(6) that a deposition, after being sealed, be opened only by order of the court; LIII)(7) that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a designated way; and LIV)(8) that the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court. ii. If the motion for a protective order is denied in whole or in part, the court may, on such terms and conditions as are just, order that any party or other person provide or permit discovery. 1. The provisions of Rule 37(a)(4) apply to the award of expenses incurred in relation to the motion. (d) Timing and Sequence of Discovery. i. Except in categories of proceedings exempted from initial disclosure under Rule 26(a)(1)(E), or when authorized under these rules or by order or agreement of the parties, a party may not seek discovery from any source before the parties have conferred as required by Rule 26(f). LV)ii. Unless the court upon motion, for the convenience of parties and witnesses and in the interests of justice, orders otherwise, methods of discovery may be used in any sequence, 1. and the fact that a party is conducting discovery, whether by deposition or otherwise, does not operate to delay any other party's discovery. (e) Supplementation of Disclosures and Responses. i. A party who has made a disclosure under subdivision (a) or responded to a request for discovery with a disclosure or response is under a duty to supplement or correct the disclosure or response to include information thereafter acquired 1. if ordered by the court or LVI)2. in the following circumstances: (1) A party is under a duty to supplement at appropriate intervals its disclosures under subdivision (a) if the party learns that in some material respect the information disclosed is incomplete or incorrect and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing. i. With respect to testimony of an expert from whom a report is required under subdivision (a)(2)(B) the duty extends both to 1. information contained in the report and LVII)2. to information provided through a deposition of the expert, ii. and any additions or other changes to this information shall be disclosed by the time the party's disclosures under Rule 26(a)(3) are due. 1. At least 30 days before trial (2) A party is under a duty seasonably to amend a prior response to an interrogatory, request for production, or request for admission if the party learns that the response is in some material respect incomplete or incorrect and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing. (f) Conference of Parties; Planning for Discovery. i. Except in categories of proceedings exempted from initial disclosure under Rule 26(a)(1)(E) or when otherwise ordered, the parties must, as soon as practicable and in any event at least 21 days before a scheduling conference is held or a scheduling order is due under Rule 16(b), confer to consider the nature and basis of their claims and defenses and the possibilities for a prompt settlement or resolution of the case, to make or arrange for the disclosures required by Rule 26(a)(1), and to develop a proposed discovery plan that indicates the parties' views and proposals concerning: (1) what changes should be made in the timing, form, or requirement for disclosures under Rule 26(a), including a statement as to when disclosures under Rule 26(a)(1) were made or will be made; LVIII)(2) the subjects on which discovery may be needed, when discovery should be completed, and whether discovery should be conducted in phases or be limited to or focused upon particular issues; LIX)(3) any issues relating to disclosure or discovery of electronically stored information, including the forms or forms in which it should be produced; LX)(4) any issues relating to claims of privilege or of protection as tiral-preparation material, including--if the parties agree on a procedure to assert such claims after production--whether to ask the court to include their agreement in an order; LXI)(5) what changes should be made in the limitations on discovery imposed under these rules or by local rule, and what other limitations should be imposed; and LXII)(6) any other orders that should be entered by the court under Rule 26(c) or under Rule 16(b) and (c). ii. The attorneys of record and all unrepresented parties that have appeared in the case are jointly responsible for 1. arranging the conference, LXIII)2. for attempting in good faith to agree on the proposed discovery plan, and LXIV)3. for submitting to the court within 14 days after the conference a written report outlining the plan. iii. A court may order that the parties or attorneys attend the conference in person. If necessary to comply with its expedited schedule for Rule 16(b) conferences, a court may by local rule (i) require that the conference between the parties occur fewer than 21 days before the scheduling conference is held or a scheduling order is due under Rule 16(b), and LXV)(ii) require that the written report outlining the discovery plan be filed fewer than 14 days after the conference between the parties, a. or excuse the parties from submitting a written report and permit them to report orally on their discovery plan at the Rule 16(b) conference. (g) Signing of Disclosures, Discovery Requests, Responses, and Objections. (1) Every disclosure made pursuant to subdivision (a)(1) or subdivision (a)(3) shall be signed by at least one attorney of record in the attorney's individual name, whose address shall be stated. An unrepresented party shall sign the disclosure and state the party's address. The signature of the attorney or party constitutes a certification that to the best of the signer's knowledge, information, and belief, formed after a reasonable inquiry, the disclosure is complete and correct as of the time it is made. LXVI)(2) Every discovery request, response, or objection made by a party represented by an attorney shall be signed by at least one attorney of record in the attorney's individual name, whose address shall be stated. An unrepresented party shall sign the request, response, or objection and state the party's address. 1. The signature of the attorney or party constitutes a certification that to the best of the signer's knowledge, information, and belief, formed after a reasonable inquiry, the request, response, or objection is: (A) consistent with these rules and warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; LXVII)(B) not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation; and LXVIII)(C) not unreasonable or unduly burdensome or expensive, given i. the needs of the case, LXIX)ii. the discovery already had in the case, LXX)iii. the amount in controversy, and LXXI)iv. the importance of the issues at stake in the litigation. 2. If a request, response, or objection is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the party making the request, response, or objection, and a. a party shall not be obligated to take any action with respect to it until it is signed. (3) If without substantial justification a certification is made in violation of the rule, the court, upon motion or upon its own initiative, shall impose upon the person who made the certification, the party on whose behalf the disclosure, request, response, or objection is made, or both, an appropriate sanction, which may include an order to pay the amount of the reasonable expenses incurred because of the violation, including a reasonable attorney's fee. LXXII) International Discovery a. The Hague Convention establishes optional procedures for obtaining evidence abroad, but does not deprive the court of its jurisdiction to apply the FRCP to produce evidence physically located within a signatory nation. - Societe Nationale Industrielle Aerospatiale v. U.S. District Court 1. American courts, in supervising pretrial proceedings, should exercise special vigilance to protect foreign litigants from the danger that unncecessary or unduly burdensome discovery may place them in a disadvantageous position. LXXIII)2. When necessary to seek evidence abroad, district court must supervise pretrial proceedings particularly closely to prevent discovery abuses. 3. In the interest of international comity among nations, American courts should take care to demonstrate due respect for any special problem confronted by the foreign litigant on account of its nationality or the location of its operations, and for any sovereign interest expressed by a foreign state. FRCP 30: Depositions Upon Oral Examination (pin people down) (a) When Depositions May Be Taken; When Leave Required. (1) A party may take the testimony of any person, including a party, by deposition upon oral examination without leave of court except as provided in paragraph (2). 1. The attendance of witnesses may be compelled by subpoena as provided in Rule 45. (2) A party must obtain leave of court, which shall be granted to the extent consistent with the principles stated in Rule 26(b)(2), if the person to be examined is confined in prison or if, without the written stipulation of the parties. (A) a proposed deposition would result in more than ten depositions being taken under this rule or Rule 31 by the plaintiffs, or by the defendants, or by third-party defendants; LXXIV)(B) the person to be examined already has been deposed in the case; or LXXV)(C) a party seeks to take a deposition before the time specified in Rule 26(d) a. unless the notice contains a certification, with supporting facts, that the person to be examined is expected to leave the United States and be unavailable for examination in this country unless deposed before that time. (b) Notice of Examination: General Requirements; Method of Recording; Production of Documents and Things; Deposition of Organization; Deposition by Telephone. (1) A party desiring to take the deposition of any person upon oral examination shall give reasonable notice in writing to every other party to the action. 1. The notice shall state a. the time and place for taking the deposition and LXXVI)b. the name and address of each person to be examined, if known, and, if the name is not known, a general description sufficient to identify the person or the particular class or group to which the person belongs. 2. If a subpoena duces tecum is to be served on the person to be examined, the designation of the materials to be produced as set forth in the subpoena shall be attached to, or included in, the notice. (2) The party taking the deposition shall state in the notice the method by which the testimony shall be recorded. 1. Unless the court orders otherwise, it may be recorded by sound, sound-and-visual, or stenographic means, and the party taking the deposition shall bear the cost of the recording. LXXVII)2. Any party may arrange for a transcription to be made from the recording of a deposition taken by nonstenographic means. (3) With prior notice to the deponent and other parties, any party may designate another method to record the deponent's testimony in addition to the method specified by the person taking the deposition. 1. The additional record or transcript shall be made at that party's expense unless the court otherwise orders. (4) Unless otherwise agreed by the parties, a deposition shall be conducted before an officer appointed or designated under Rule 28 and shall begin with a statement on the record by the officer that includes (A) the officer's name and business address; LXXVIII)(B) the date, time and place of the deposition; LXXIX)(C) the name of the deponent; LXXX)(D) the administration of the oath or affirmation to the deponent; and LXXXI)(E) an identification of all persons present. a. If the deposition is recorded other than stenographically, the officer shall repeat items (A) through (C) at the beginning of each unit of recorded tape or other recording medium. LXXXII)b. The appearance or demeanor of deponents or attorneys shall not be distorted through camera or sound-recording techniques. LXXXIII)c. At the end of the deposition, the officer shall state on the record that the deposition is complete and shall set forth any stipulations made by counsel concerning the custody of the transcript or recording and the exhibits, or concerning other pertinent matters. (5) The notice to a party deponent may be accompanied by a request made in compliance with Rule 34 for the production of documents and tangible things at the taking of the deposition. The procedure of Rule 34 shall apply to the request. LXXXIV)(6) A party may in the party's notice and in a subpoena name as the deponent a public or private corporation or a partnership or association or governmental agency and describe with reasonable particularity the matters on which examination is requested. 1. In that event, the organization so named shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which the person will testify. LXXXV)2. A subpoena shall advise a non-party organization of its duty to make such a designation. The persons so designated shall testify as to matters known or reasonably available to the organization. This subdivision (b)(6) does not preclude taking a deposition by any other procedure authorized in these rules. (7) The parties may stipulate in writing or the court may upon motion order that a deposition be taken by telephone or other remote electronic means. 1. For the purposes of this rule and Rules 28(a), 37(a)(1), and 37(b)(1), a deposition taken by such means is taken in the district and at the place where the deponent is to answer questions. (c) Examination and Cross-Examination; Record of Examination; Oath; Objections i. Examination and cross-examination of witnesses may proceed as permitted at the trial under the provisions of the Federal Rules of Evidence except Rules 103 and 615. LXXXVI)ii. The officer before whom the deposition is to be taken shall put the witness on oath or affirmation and shall personally, or by someone acting under the officer's direction and in the officer's presence, record the testimony of the witness. 1. The testimony shall be taken stenographically or recorded by any other method authorized by subdivision (b)(2) of this rule. iii. All objections made at the time of the examination to 1. the qualifications of the officer taking the deposition, LXXXVII)2. to the manner of taking it, LXXXVIII)3. to the evidence presented, LXXXIX)4. to the conduct of any party, XC)5. or to any other aspect of the proceedings shall be noted by the officer upon the record of the deposition; a. but the examination shall proceed, with the testimony being taken subject to the objections. iv. In lieu of participating in the oral examination, parties may serve written questions in a sealed envelope on the party taking the deposition and the party taking the deposition shall transmit them to the officer, who shall propound them to the witness and record the answers verbatim. (d) Schedule and Duration; Motion to Terminate or Limit Examination. (1) Any objection during a deposition must be stated concisely and in a non-argumentative and non-suggestive manner. 1. A person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation directed by the court, or to present a motion under Rule 30(d)(4). (2) Unless otherwise authorized by the court or stipulated by the parties, a deposition is limited to one day of seven hours. 1. The court must allow additional time consistent with Rule 26(b)(2) if needed for a fair examination of the deponent or if the deponent or another person, or other circumstance, impedes or delays the examination. (3) If the court finds that any impediment, delay, or other conduct has frustrated the fair examination of the deponent, it may impose upon the persons responsible an appropriate sanction, including the reasonable costs and attorney's fees incurred by any parties as a result thereof. XCI)(4) At any time during a deposition, on motion of a party or of the deponent and upon a showing that the examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party, 1. the court in which the action is pending or the court in the district where the deposition is being taken may order a. the officer conducting the examination to cease forthwith from taking the deposition, or XCII)b. may limit the scope and manner of the taking of the deposition as provided in Rule 26(c). 2. If the order made terminates the examination, it may be resumed thereafter only upon the order of the court in which the action is pending. XCIII)3. Upon demand of the objecting party or deponent, the taking of the deposition must be suspended for the time necessary to make a motion for an order. a. The provisions of Rule 37(a)(4) apply to the award of expenses incurred in relation to the motion. (e) Review by Witness; Changes; Signing. i. If requested by the deponent or a party before completion of the deposition, the deponent shall have 30 days after being notified by the officer that the transcript or recording is available in which to review the transcript or recording and, if there are changes in form or substance, to sign a statement reciting such changes and the reasons given by the deponent for making them. 1. The officer shall indicate in the certificate prescribed by subdivision (f)(1) whether any review was requested and, if so, shall append any changes made by the deponent during the period allowed. (f) Certification and Filing by Officer; Exhibits; Copies; Notices of Filing. (1) The officer must certify that the witness was duly sworn by the officer and that the deposition is a true record of the testimony given by the witness. This certificate must be in writing and accompany the record of the deposition. 1. Unless otherwise ordered by the court, the officer must securely seal the deposition in an envelope or package indorsed with the title of the action and marked "Deposition of [here insert name of witness]" and a. must promptly send it to the attorney who arranged for the transcript or recording, i. who must store it under conditions that will protect it against loss, destruction, tampering, or deterioration. 2. Documents and things produced for inspection during the examination of the witness must, upon the request of a party, be marked for identification and annexed to the deposition and may be inspected and copied by any party, a. except that if the person producing the materials desires to retain them the person may (A) offer copies to be marked for identification and annexed to the deposition and to serve thereafter as originals if the person affords to all parties fair opportunity to verify the copies by comparison with the originals, or XCIV)(B) offer the originals to be marked for identification, after giving to each party an opportunity to inspect and copy them, in which event the materials may then be used in the same manner as if annexed to the deposition. b. Any party may move for an order that the original be annexed to and returned with the deposition to the court, pending final disposition of the case. (2) Unless otherwise ordered by the court or agreed by the parties, the officer shall retain stenographic notes of any deposition taken stenographically or a copy of the recording of any deposition taken by another method. 1. Upon payment of reasonable charges therefor, the officer shall furnish a copy of the transcript or other recording of the deposition to any party or to the deponent. (3) The party taking the deposition shall give prompt notice of its filing to all other parties. (g) Failure to Attend or to Serve Subpoena; Expenses. (1) If the party giving the notice of the taking of a deposition fails to attend and proceed therewith and another party attends in person or by attorney pursuant to the notice, the court may order the party giving the notice to pay to such other party the reasonable expenses incurred by that party and that party's attorney in attending, including reasonable attorney's fees. XCV)(2) If the party giving the notice of the taking of a deposition of a witness fails to serve a subpoena upon the witness and the witness because of such failure does not attend, and if another party attends in person or by attorney because that party expects the deposition of that witness to be taken, the court may order the party giving the notice to pay to such other party the reasonable expenses incurred by that party and that party's attorney in attending, including reasonable attny's fees. XCVI) FRCP 33: Interrogatories to Parties (provides concrete information) (a) Availability. i. Without leave of court or written stipulation, any party may serve upon any other party written interrogatories, 1. not exceeding 25 in number including all discrete subparts, to be answered by the party served or, if the party served is a public or private corporation or a partnership or association or governmental agency, by any officer or agent, who shall furnish such information as is available to the party. XCVII)2. Leave to serve additional interrogatories shall be granted to the extent consistent with the principles of Rule 26(b)(2). XCVIII)3. Without leave of court or written stipulation, interrogatories may not be served before the time specified in Rule 26(d). (b) Answers and Objections. (1) Each interrogatory shall be answered separately and fully in writing under oath, 1. unless it is objected to, in which event the objecting party shall state the reasons for objection and shall answer to the extent the interrogatory is not objectionable. (2) The answers are to be signed by the person making them, and the objections signed by the attorney making them. XCIX)(3) The party upon whom the interrogatories have been served shall serve a copy of the answers, and objections if any, within 30 days after the service of the interrogatories. 1. A shorter or longer time may be directed by the court or, in the absence of such an order, agreed to in writing by the parties subject to Rule 29. (4) All grounds for an objection to an interrogatory shall be stated with specificity. 1. Any ground not stated in a timely objection is waived unless the party's failure to object is excused by the court for good cause shown. (5) The party submitting the interrogatories may move for an order under Rule 37(a) with respect to any objection to or other failure to answer an interrogatory. 1. [Motion for order to compel] (c) Scope; Use at Trial. i. Interrogatories may relate to any matters which can be inquired into under Rule 26(b)(1), and the answers may be used to the extent permitted by the rules of evidence. C)ii. An interrogatory otherwise proper is not necessarily objectionable merely because an answer to the interrogatory involves an opinion or contention that relates to fact or the application of law to fact, 1. but the court may order that such an interrogatory need not be answered until after designated discovery has been completed or until a pre-trial conference or other later time. (d) Option to Produce Business Records. i. Where the answer to an interrogatory may be derived or ascertained from the business records of the party upon whom the interrogatory has been served or from an examination, audit or inspection of such business records, including a compilation, abstract or summary thereof, and the burden of deriving or ascertaining the answer is substantially the same for the party serving the interrogatory as for the party served, it is a sufficient answer to such interrogatory to specify the records from which the answer may be derived or ascertained and to afford to the party serving the interrogatory reasonable opportunity to examine, audit or inspect such records and to make copies, compilations, abstracts or summaries. CI)ii. A specification shall be in sufficient detail to permit the interrogating party to locate and to identify, as readily as can the party served, the records from which the answer may be ascertained. CII) FRCP 34: Production of Documents and Things and Entry Upon Land For CIII) Inspection and Other Purposes CIV) (do early in order to prepare for depositions, admissions and inspections) (a) Scope. Any party may serve on any other party a request (1) to produce and permit the party making the request, or someone acting on the requestor's behalf, to inspect and copy, any designated documents (including writings, drawings, graphs, charts, photographs, phonorecords, and other data compilations from which information can be obtained, translated, if necessary, by the respondent through detection devices into reasonably usable form), or 1. to inspect and copy, test, or sample any tangible things which constitute or contain matters w/in the scope of Rule 26(b) & which are in the possession, custody or control of the party upon whom the request is served; or (2) to permit entry upon designated land or other property in the possession or control of the party upon whom the request is served for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property or any designated object or operation thereon, within the scope of Rule 26(b). CV)(3) Rule 34 applies to electronic data compilations. - Zubulake v. UBS Warburg LLC (NY dist. ct.) i. P is entitled to discovery of emails so long as they are relevant to her claims. CVI)ii. Non-moving party (person against whom discovery is sought) normally must incur the cost of producing electronic data compliations to party seeking discovery. CVII)iii. Cost-shifting should be considered only when electronic discovery imposes an “undue burden or expense” on the responding party. Test to determine undue cost/burden: 1)Extend of specifically tailored – marginal utility 2)Availability of other sources – marginal utility 3)Cost analysis: amount in controversy 4)Cost analysis: resources available to each party 5)Ability to control costs 6)Importance of issues at stake in litigation 7)Relative benefits to parties obtaining information (b) Procedure. i. The request shall set forth, either by individual item or by category, the items to be inspected, and describe each with reasonable particularity. 1. The request shall specify a reasonable time, place, and manner of making the inspection and performing the related acts. 2. Without leave of court or written stipulation, a request may not be served before the time specified in Rule 26(d). ii. The party upon whom the request is served shall serve a written response within 30 days after the service of the request. 1. A shorter or longer time may be directed by the court or, in the absence of such an order, agreed to in writing by the parties, subject to Rule 29. iii. The response shall state, with respect to each item or category, that inspection and related activities will be permitted as requested, 1. Unless the request is objected to, in which event the reasons for the objection shall be stated. a. If objection is made to part of an item or category, the part shall be specified and inspection permitted of the remaining parts. 2. The party submitting the request may move for an order under Rule 37(a) with respect to any objection to or other failure to respond to the request or any part thereof, or any failure to permit inspection as requested. iv. A party who produces documents for inspection shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the request. (c) Persons Not Parties. A person not a party to the action may be compelled to produce documents and things or to submit to an inspection as provided in Rule 45. FRCP 35: Physical and Mental Examinations of Persons (a) Order for Examination. i. When the mental or physical condition (including the blood group) of a party or of a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order 1. the party to submit to a physical or mental examination by a suitably licensed or certified examiner or to produce for examination the person in the party's custody or legal control. a. The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and i. shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made. ii. Appropriateness of mental examination requires that the mental condition be in controversy and discovering party must show specific facts and relevance as good cause for court order – Vinson 1. Courts must balance the rights of a civil litigant to discover relevant facts against the privacy interests of persons subject to discovery a. Must not be a fishing expedition b. Implicit waiver if party’s constitutional rights encompass only discovery directly relevant to П’s claim and essential to fair resolution of the lawsuit i. Must allow ∆ to the opportunity to test the truth of the claims against her (b) Report of Examiner. (1) If requested by the party against whom an order is made under Rule 35(a) or the person examined, the party causing the examination to be made shall deliver to the requesting party a copy of the detailed written report of the examiner 1. setting out the examiner's findings, including results of all tests made, diagnoses and conclusions, together with like reports of all earlier examinations of the same condition. 2. After delivery the party causing the examination shall be entitled upon request to receive from the party against whom the order is made a like report of any examination, previously or thereafter made, of the same condition, unless, in the case of a report of examination of a person not a party, the party shows that the party is unable to obtain it. 3. The court on motion may make an order against a party requiring delivery of a report on such terms as are just, and if an examiner fails or refuses to make a report the court may exclude the examiner's testimony if offered at trial. (2) By requesting and obtaining a report of the examination so ordered or by taking the deposition of the examiner, the party examined waives any privilege the party may have in that action or any other involving the same controversy, regarding 1. the testimony of every other person who has examined or may thereafter examine the party in respect of the same mental or physical condition. (3) This subdivision applies to examinations made by agreement of the parties, unless the agreement expressly provides otherwise. 1. This subdivision does not preclude discovery of a report of an examiner or the taking of a deposition of the examiner in accordance with the provisions of any other rule. (c) Definitions. For the purpose of this rule, a psychologist is a psychologist licensed or certified by a State or the District of Columbia. FRCP 36: Requests for Admission (once done, can take issue off the table) (a) Request for Admission. i. A party may serve upon any other party a written request for the admission, for purposes of the pending action only, of the truth of any matters within the scope of Rule 26(b)(1) set forth in the request that relate to statements or opinions of fact or of the application of law to fact, 1. including the genuineness of any documents described in the request. 2. Copies of documents shall be served with the request unless they have been or are otherwise furnished or made available for inspection and copying. 3. Without leave of court or written stipulation, requests for admission may not be served before the time specified in Rule 26(d). ii. Each matter of which an admission is requested shall be separately set forth. 1. The matter is admitted unless, within 30 days after service of the request, or within such shorter or longer time as the court may allow or as the parties may agree to in writing, subject to Rule 29, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by the party's attorney. 2. If objection is made, the reasons therefor shall be stated. a. The answer shall specifically deny the matter or set forth in detail the reasons why the answering party cannot truthfully admit or deny the matter. b. A denial shall fairly meet the substance of the requested admission, and when good faith requires that a party qualify an answer or deny only a part of the matter of which an admission is requested, the party shall specify so much of it as is true and qualify or deny the remainder. c. An answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless the party states that the party has made reasonable inquiry and that the information known or readily obtainable by the party is insufficient to enable the party to admit or deny. d. A party who considers that a matter of which an admission has been requested presents a genuine issue for trial may not, on that ground alone, object to the request; the party may, subject to the provisions of Rule 37(c), deny the matter or set forth reasons why the party cannot admit or deny it. iii. The party who has requested the admissions may move to determine the sufficiency of the answers or objections. Unless the court determines that an objection is justified, it shall order that an answer be served. 1. If the court determines that an answer does not comply with the requirements of this rule, it may order either that the matter is admitted or that an amended answer be served. The court may, in lieu of these orders, determine that final disposition of the request be made at a pre-trial conference or at a designated time prior to trial. The provisions of Rule 37(a)(4) apply to the award of expenses incurred in relation to the motion. (b) Effect of Admission. i. Any matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission. Subject to the provision of Rule 16 governing amendment of a pre-trial order, the court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice that party in maintaining the action or defense on the merits. 1. Any admission made by a party under this rule is for the purpose of the pending action only and is not an admission for any other purpose nor may it be used against the party in any other proceeding. FRCP 37: Failure to Make a Disclosure or Cooperate in Discovery; Sanctions (a) Motion for Order Compelling Disclosure or Discovery. i. A party, upon reasonable notice to other parties and all persons affected thereby, may apply for an order compelling disclosure or discovery as follows: (1) Appropriate Court. An application for an order to a party shall be made to the court in which the action is pending. a. An application for an order to a person who is not a party shall be made to the court in the district where the discovery is being, or is to be, taken. (2) Motion. (A) If a party fails to make a disclosure required by Rule 26(a), any other party may move to compel disclosure and for appropriate sanctions. i. The motion must include a certification that the movant has in good faith conferred or attempted to confer with the party not making the disclosure in an effort to secure the disclosure without court action. 1. Importance of keeping the discovery process party-driven (B) If a deponent fails to answer a question propounded or submitted under Rules 30 or 31, or a corporation or other entity fails to make a designation under Rule 30(b)(6) or 31(a), or a party fails to answer an interrogatory submitted under Rule 33, or if a party, in response to a request for inspection submitted under Rule 34, fails to respond that inspection will be permitted as requested or fails to permit inspection as requested, the discovering party may move for an order compelling answer, or a designation, or an order compelling inspection in accordance with the request. i. The motion must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make the discovery in an effort to secure the information or material without court action. ii. When taking a deposition on oral examination, the proponent of the question may complete or adjourn the examination before applying for an order. (3) Evasive or Incomplete Disclosure, Answer, or Response. a. For purposes of this subdivision an evasive or incomplete disclosure, answer, or response is to be treated as a failure to disclose, answer, or respond. (4) Expenses and Sanctions. (A) If the motion is granted or if the disclosure or requested discovery is provided after the motion was filed, the court shall, after affording an opportunity to be heard, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in making the motion, including attorney's fees, i. unless the court finds that the motion was filed without the movant's first making a good faith effort to obtain the disclosure or discovery without court action, or that the opposing party's nondisclosure, response, or objection was substantially justified, or that other circumstances make an award of expenses unjust. (B) If the motion is denied, the court may enter any protective order authorized under Rule 26(c) and shall, after affording an opportunity to be heard, require the moving party or the attorney filing the motion or both of them to pay to the party or deponent who opposed the motion the reasonable expenses incurred in opposing the motion, including attorney's fees, i. unless the court finds that the making of the motion was substantially justified or that other circumstances make an award of expenses unjust. (C) If the motion is granted in part and denied in part, the court may enter any protective order authorized under Rule 26(c) and may, after affording an opportunity to be heard, apportion the reasonable expenses incurred in relation to the motion among the parties and persons in a just manner. (b) Failure to comply with order. (1) Sanctions by Court in District Where Deposition is Taken. 1. If a deponent fails to be sworn or to answer a question after being directed to do so by the court in the district in which the deposition is being taken, the failure may be considered a contempt of that court. (2) Sanctions by Court in Which Action Is Pending. 1. If a party or an officer, director, or managing agent of a party or a person designated under Rule 30(b)(6) or 31(a) to testify on behalf of a party fails to obey an order to provide or permit discovery, including an order made under subdivision (a) of this rule or Rule 35, or if a party fails to obey an order entered under Rule 26(f), the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following: (A) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order (B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting that party from introducing designated matters in evidence; i. Preclusion of evidence is not an incentive to compel disclosure, thus the court can impose a wide range of other sanctions - Communispond (C) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party; i. Default Judgment is the most extreme and requires bad faith and repetition – Communispond 1. Great discretion of trial court (on appeal standard is “abuse of discretion”) (D) In lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the failure to obey any orders i. except an order to submit to a physical or mental examination; 1. Rule 35 (E) Where a party has failed to comply with an order under Rule 35(a) requiring that party to produce another for examination, such orders as are listed in paragraphs (A), (B), and (C) of this subdivision, unless the party failing to comply shows that that party is unable to produce such person for examination. 2. In lieu of any of the foregoing orders or in addition thereto, the court shall require the party failing to obey the order or the attorney advising that party or both to pay the reasonable expenses, including attorney's fees, caused by the failure, a. unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust. (c) Failure to Disclose; False or Misleading Disclosure; Refusal to Admit. (1) A party that without substantial justification fails to disclose information required by Rule 26(a) or 26(e)(1), or to amend a prior response to discovery as required by Rule 26(e)(2), is not, unless such failure is harmless, permitted to use as evidence at a trial, at a hearing, or on a motion any witness or information not so disclosed. 1. In addition to or in lieu of this sanction, the court, on motion and after affording an opportunity to be heard, may impose other appropriate sanctions. In addition to requiring payment of reasonable expenses, including attorney's fees, caused by the failure, these sanctions may include any of the actions authorized under Rule 37(b)(2)(A), (B), and (C) and may include informing the jury of the failure to make the disclosure. 2. Ex: Washington State Physicians Insurance Exchange v. Fisons Corp. (WA state supreme court) - In medical malpractice case, sanctions were appropriate when drug manufacturer failed to produce 2 “smoking gun” documents that later surfaced and that contradicted the manufacturer's position that it did not know that the drugs were potentially dangerous when given to children w/ viral infections (which caused girl's injury). a. When reviewing sanctions, court must apply the abuse of discretion standard. Court should not consider opinions of attorneys and others as to whether sanctions should be imposed; it is the court’s responsibility deciding a sanction motion to interpret and apply the law. (2) If a party fails to admit the genuineness of any document or the truth of any matter as requested under Rule 36, and if the party requesting the admissions thereafter proves the genuineness of the document or the truth of the matter, the requesting party may apply to the court for an order requiring the other party to pay the reasonable expenses incurred in making that proof, including reasonable attorney's fees. 1. The court shall make the order unless it finds that (A) the request was held objectionable pursuant to Rule 36(a), or (B) the admission sought was of no substantial importance, or (C) the party failing to admit had reasonable ground to believe that the party might prevail on the matter, or (D) there was other good reason for the failure to admit. (d) Failure of Party to Attend at Own Deposition or Serve Answers to Interrogatories or Respond to Request for Inspection. i. If a party or an officer, director, or managing agent of a party or a person designated under Rule 30(b)(6) or 31(a) to testify on behalf of a party fails (1) to appear before the officer who is to take the deposition, after being served with a proper notice, or (2) to serve answers or objections to interrogatories submitted under Rule 33, after proper service of the interrogatories, or a. Good faith conferred requirement (3) to serve a written response to a request for inspection submitted under Rule 34, after proper service of the request, the court in which the action is pending on motion may make such orders in regard to the failure as are just, and among others it may take any action authorized under subparagraphs (A), (B), and (C) of subdivision (b)(2) of this rule. a. Good faith conferred requirement b. Any motion specifying a failure under clause (2) or (3) of this subdivision shall include a certification that the movant has in good faith conferred or attempted to confer with the party failing to answer or respond in an effort to obtain such answer or response without court action. c. In lieu of any order or in addition thereto, the court shall require the party failing to act or the attorney advising that party or both to pay the reasonable expenses, including attorney's fees, caused by the failure unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust. ii. The failure to act described in this subdivision may not be excused on the ground that the discovery sought is objectionable unless the party failing to act has a pending motion for a protective order as provided by Rule 26(c). (e) [Abrogated] (f) Electronically Stored Information i. Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good faith operation of an electronic information system. (g) Failure to Participate in the Framing of a Discovery Plan. i. If a party or a party's attorney fails to participate in the development and submission of a proposed discovery plan as required by Rule 26(f), the court may, after opportunity for hearing, require such party or attorney to pay to any other party the reasonable expenses, including attorney's fees, caused by the failure. FRCP 38: Jury Trial of Right (a) Right Preserved. i. The right of trial by jury as declared by the Seventh Amendment to the Constitution or as given by a statute of the United States shall be preserved to the parties inviolate. 1. Where a factual determination is relevant to both legal and equitable issues, the determination must be made by a jury – Beacon Theatres a. Equitable remedy only when remedy at law is inadequate i. Declaratory judgment is a legal remedy for purposes of the Seventh Amendment if the underlying issues are legal in nature 1. in this case- antitrust (legal) b. Usually legal claims heard first i. Option to split the causes into separate trials (Rule 42(b)) 1. In which case equity may be heard first (rare) 2. Modern Historical Test a. Test to determine whether a particular action will resolve legal rights, must examine: i. Nature of issues in claim, and ii. Remedy sought b. Ex: Chauffeurs v. Terry - Although the claim includes both legal and equitable issues, the money damages respondents seek are the type of relief traditionally awarded by courts of law; thus 7th Amend. entitles D to a jury trial. Where employee seeks relief in form of backpay for a union’s alleged breach of its duty of fair representation, 7th Amend. entitles him to a jury trial. (b) Demand. i. Any party may demand a trial by jury of any issue triable of right by a jury by (1) serving upon the other parties a demand therefor in writing at any time after the commencement of the action and a. not later than 10 days after the service of the last pleading directed to the issue, and (2) filing the demand as required by Rule 5(d). a. Such demand may be indorsed upon a pleading of the party. (c) Same: Specification of Issues. i. In the demand a party may specify the issues which the party wishes so tried; 1. otherwise the party shall be deemed to have demanded trial by jury for all the issues so triable. ii. If the party has demanded trial by jury for only some of the issues, any other party within 10 days after service of the demand or such lesser time as the court may order, may serve a demand for trial by jury of any other or all of the issues of fact in the action. (d) Waiver. i. The failure of a party to serve and file a demand as required by this rule constitutes a waiver by the party of trial by jury. I) ii. A demand for trial by jury made as herein provided may not be withdrawn without the consent of the parties. (e) Admiralty and Maritime Claims. i. These rules shall not be construed to create a right to trial by jury of the issues in an admiralty or maritime claim within the meaning of Rule 9(h). II) FRCP 39: Trial by Jury or by the Court (a) By Jury. i. When trial by jury has been demanded as provided in Rule 38, the action shall be designated upon the docket as a jury action. The trial of all issues so demanded shall be by jury, unless (1) the parties or their attorneys of record, by written stipulation filed with the court or by an oral stipulation made in open court and entered in the record, consent to trial by the court sitting without a jury or III) (2) the court upon motion or of its own initiative finds that a right of trial by jury of some or all of those issues does not exist under the Constitution or statutes of the United States. (b) By the Court. i. Issues not demanded for trial by jury as provided in Rule 38 shall be tried by the court; 1. But, notwithstanding the failure of a party to demand a jury in an action in which such a demand might have been made of right, the court in its discretion upon motion may order a trial by a jury of any or all issues. (c) Advisory Jury and Trial by Consent. i. In all actions not triable of right by a jury the court upon motion or of its own initiative may try any issue with an advisory jury or, except in actions against the United States when a statute of the United States provides for trial without a jury, IV)ii. the court, with the consent of both parties, may order a trial with a jury whose verdict has the same effect as if trial by jury had been a matter of right. V) FRCP 40: Assignment of Cases for Trial (a) The district courts shall provide by rule for the placing of actions upon the trial calendar (1) without request of the parties or VI)(2) upon request of a party and notice to the other parties or VII)(3) in such other manner as the courts deem expedient. 1. Precedence shall be given to actions entitled thereto by any statute of the United States. VIII) FRCP 41: Dismissal of Actions (a) Voluntary Dismissal: Effect Thereof. (1) By Plaintiff; By Stipulation. 1. Subject to the provisions of Rule 23(e), of Rule 66, and of any statute of the United States, an action may be dismissed by the plaintiff without order of court (i) by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs, or IX) (ii) by filing a stipulation of dismissal signed by all parties who have appeared in the action. i. No limit of number of dismissals with stipulation 2. Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice, a. except that a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in any court of the United States or of any state an action based on or including the same claim. i. Prejudice when filed second time around (2) By Order of Court. 1. Except as provided in paragraph (1) of this subdivision of this rule, an action shall not be dismissed at the plaintiff's instance save upon order of the court and upon such terms and conditions as the court deems proper. X) 2. If a counterclaim has been pleaded by a defendant prior to the service upon the defendant of the plaintiff's motion to dismiss, the action shall not be dismissed against the defendant's objection unless the counterclaim can remain pending for independent adjudication by the court. XI) 3. Unless otherwise specified in the order, a dismissal under this paragraph is without prejudice. (b) Involuntary Dismissal: Effect Thereof. i. For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against the defendant. XII)ii. Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, (other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19), operates as an adjudication upon the merits. (c) Dismissal of Counterclaim, Cross-Claim, or Third-Party Claim i. The provisions of this rule apply to the dismissal of any counterclaim, cross-claim, or third-party claim. XIII)ii. A voluntary dismissal by the claimant alone pursuant to paragraph (1) of subdivision (a) of this rule shall be made before a responsive pleading is served or, if there is none, before the introduction of evidence at the trial or hearing. (d) Costs of Previously-Dismissed Action. i. If a plaintiff who has once dismissed an action in any court commences an action based upon or including the same claim against the same defendant, the court may make such order for the payment of costs of the action previously dismissed as it may deem proper and may stay the proceedings in the action until the plaintiff has complied with the order. XIV) FRCP 42: Consolidation; Separate Trials a) Consolidation (a) i. When actions involving a common question of law or fact are pending before the court, it may order: 1. A joint hearing or trial of any or all the matters in issue in the actions; XV)2. It may order all the actions consolidated; and XVI)3. It may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay. a. [Courts are more willing to put together larger actions on their own initiative] i. All discovery and pre-trial consolidated 1. conducive to comparative negligence b) Separate Trials (b) i. The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any claim, cross-claim, counterclaim, or third-party claim, or of any separate issue or of any number of claims, cross-claims, counterclaims, third-party claims, or issues, 1. Always preserving inviolate the right of trial by jury as declared by the Seventh Amendment to the Constitution or as given by a statute of the United States. a. [Occasionally, aggregation of litigation is too large for one sitting] i. Often separate trials to determine liability and damages XVII) FRCP 47: Selection of Jurors (a) Examination of Jurors i. The court may permit the parties or their attorneys to conduct the examination of prospective jurors or may itself conduct the examination. 1. In the latter event, the court shall permit the parties or their attorneys to supplement the examination by such further inquiry as it deems proper or shall itself submit to the prospective jurors such additional questions of the parties or their attorneys as it deems proper. (b) Peremptory Challenges. i. The court shall allow the number of peremptory challenges provided by 28 U.S.C. 1870. (3) 1. When a prosecutor in a criminal case uses peremptory challenges to excludes jurors based on race, there is a violation if the equal protection rights of those exclused from the jury a. This rule extends to parties in civil suits because a party exercising a peremptory challenge invokes the federal authority of the courts – Edmonson v. Leesville Concrete i. Jurors have Fifth Amendment rights and there is sufficient third-party standing of parties to enforce these rights XVIII)ii. Constitutional protections only apply to acts of govt iii. Federal court – Fifth Amendment (equal protection implied in Due Process Clause) 1. State court – Fourteenth Amendment with due process and equal protection clauses XIX)2. Litigant need not be a minority b. Burden shifting i. Claim that challenge was motivated by race ii. Shift to opposing party to offer a neutral/non-discriminatory reason for challenging (need not be to the extent of cause) iii. Shift back to offer a pretextual reason 1. Then court decides if the pretextual reason sufficiently overcomes the neutral explanation (c) Excuse. i. The court may for good cause excuse a juror from service during trial or deliberation. (d) To invalidate a judgment/obtain a new trial a party must (a) demonstrate that a juror failed to answer honestly a material question on voir dire, and (b) further show that a correct response would have provided a valid basis for a challenge of cause – McDonough v. Greenwood i. Purpose of voir dire is to protect the right to a fair trial by exposing possible biases on the part of potential jurors then, if needed, excuse jurors for just cause or use a peremptory challenge (e) Jury Selection i. Jury panel (or venire) -- group of potential jurors assembled at courthouse 1. 6th Amendment right to a jury trial encompasses the right to trial by an impartial jury drawn from a representative cross-section of the community. The right to an impartial jury applies at every stage of the jury selection process. People v. Currie (CA state appeals court) - D failed to establish a prima facie case of systematic exclusion of African-American jurors in the jury selection process. ii. Voir dire -- process by which actual jury is chosen from the members of the panel 1. Potential jurors are questioned to determine possible bias that would allow challenge for cause, or to reveal information that would induce a party to exercise a peremptory challenge. FRCP 48: Number of Jurors -- Participation in Verdict a) The court shall seat a jury of not fewer than six and not more than twelve members and all jurors shall participate in the verdict unless excused from service by the court pursuant to Rule 47(c). b) Unless the parties otherwise stipulate, (1) the verdict shall be unanimous and (2) no verdict shall be taken from a jury reduced in size to fewer than six members. FRCP 50: Judgment as a Matter of Law in Jury Trials; Alternative Motion for New Trial; Conditional Rulings (essential) П or ∆ motion for dv ----------------------------------↓ П rests ↓ ∆ rests ↑ deliberation verdict → JNOV or Renewed Motion for Judgment as a Matter ∆ motion for dv Of Law (inconsequential) (a) Judgment as a Matter of Law. (1) If a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue, the court may: (A) resolve the issue against the party; and (B) grant a motion for judgment as a matter of law against the party on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue. 1. Extreme cases with no controversy of fact are for the judge to decide. All cases in between are for the jury – Sioux City and Pacific RR v. Stout 2. The inquiry involved in a ruling on a motion for summary judgment or for a directed verdict necessarily implicates the substantive evidentiary standard of proof that would apply at trial on the merits - Anderson v. City of Bessemer a. View evidence in light most favorable to non-moving party b. To get to jury just need to show that reasonable minds could differ 3. Court may order jnov sua sponte 4. Threshold question whether the evidence is such that, without weighing the credibility of the witnesses or otherwise considering the weight of the evidence, there can be but one conclusion as to the verdict that reasonable people could have reached – Simblest v. Maynard (2nd Cir.) 5. A directed verdict may be granted when, discarding conflicting evidence and indulging every legitimate inference which may be drawn from the evidence in favor of the party against whom the verdict is directed, it can be said that there is no evidence of sufficient substantiality to support a verdict in favor of such party, if such a verdict has been rendered – Newing v. Cheatham (2) A motion for judgment as a matter of law may be made at any time before the case is submitted to the jury. 1. The motion must specify the judgment sought and the law and the facts on which the moving party is entitled to the judgment. a. Motion necessary for preservation of legal questions i. Motion can be later renewed (b) Renewing Motion After Trial; Alternative Motion for New Trial. i. If the court does not grant a motion for judgment as a matter of law made under subdivision (a), the court is considered to have submitted the action to the jury subject to the court's later deciding the legal questions raised by the motion. The movant may renew its request for judgment as a matter of law by filing a motion no later than 10 days after entry of judgment, OR --if the motion addresses a jury issue not decided by a verdict--no later than 10 days after the jury was discharged. The movant may alternatively request a new trial OR join a motion for a new trial under Rule 59. In ruling on a renewed motion, the court may: (1) if a verdict was returned: (A) allow the judgment to stand, (B) order a new trial, or (C) direct entry of judgment as a matter of law; or (2) if no verdict was returned: (A) order a new trial, or (B) direct entry of judgment as a matter of law. * Old rule: You have to do it once and then again (re: renewing request for judgment as a matter or law) ** New Rule 50: As long as you've done it once prior to verdict, you're okay. (c) Granting Renewed Motion for Judgment as a Matter of Law; Conditional Rulings; New Trial Motion. (1) If the renewed motion for judgment as a matter of law is granted, the court shall also rule on the motion for a new trial, if any, by determining whether it should be granted if the judgment is thereafter vacated or reversed, and shall specify the grounds for granting or denying the motion for the new trial. 1. If the motion for a new trial is thus conditionally granted, the order thereon does not affect the finality of the judgment. 2. In case the motion for a new trial has been conditionally granted and the judgment is reversed on appeal, the new trial shall proceed unless the appellate court has otherwise ordered. 3. In case the motion for a new trial has been conditionally denied, the appellee on appeal may assert error in that denial; a. and if the judgment is reversed on appeal, subsequent proceedings shall be in accordance with the order of the appellate court. (2) Any motion for a new trial under Rule 59 by a party against whom judgment as a matter of law is rendered shall be filed no later than 10 days after entry of the judgment. 1. Reasons for a new trial motion a. Insufficiency of evidence b. Jury misconduct c. Procedural issues (d) Same: Denial of Motion for Judgment as a Matter of Law. i. If the motion for judgment as a matter of law is denied, the party who prevailed on that motion may, as appellee, assert grounds entitling the party to a new trial in the event the appellate court concludes that the trial court erred in denying the motion for judgment. ii. If the appellate court reverses the judgment, nothing in this rule precludes it from determining that the appellee is entitled to a new trial, or from directing the trial court to determine whether a new trial shall be granted. Judgment as a matter of law = Judgment n.o.v. = judgment notwithstanding the verdict -- Judgement as a matter of law/JNOV are post-jury verdict -- JNOV granted if jury verdict is an irrational outcome (doesn't matter why irrational) New trial not to be granted unless the jury verdict is against the (great) weight of the evidence – Spurlin (5th Cir.) JNOV – all evidence to be considered in light most favorable to party opposing the motion – Spurlin i. Depends entirely on the discretion of the court – Mann v. Hunt Standard of appellate review i. JNOV – de novo ii. New Trial 1. If granted – abuse of discretion 2. If denied – clear abuse of discretion (because the judge is agreeing with the jury) Universal established common law rule flatly prohibiting the admission of juror testimony to impeach a jury verdict with only exceptions as to extraneous/external influences – Tanner v. USA i. Juror deliberation is completely private. Don’t want to disrupt the finality of the judgment ii. Should bring jury misconduct to the attention of the court prior to deliberations FRCP 51: Instructions to Jury; Objections; Preserving a Claim of Error (a) Requests. (1) A party may, at the close of the evidence or at an earlier reasonable time that the court directs, file and furnish to every other party written requests that the court instruct the jury on the law as set forth in the requests. (2) After the close of the evidence, a party may: (A) file requests for instructions on issues that could not reasonably have been anticipated at an earlier time for requests set under Rule 51(a)(1), and I) (B) with the court's permission file untimely requests for instructions on any issue. (b) Instructions. The court: (1) must inform the parties of its proposed instructions and proposed action on the requests before instructing the jury and before final jury arguments; II) (2) must give the parties an opportunity to object on the record and out of the jury's hearing to the proposed instructions and actions on requests before the instructions and arguments are delivered; and III) (3) may instruct the jury at any time after trial begins and before the jury is discharged. (c) Objections (1) A party who objects to an instruction or the failure to give an instruction must do so on the record, stating distinctly the matter objected to and the grounds of the objection. (2) An objection is timely if: (A) a party that has been informed of an instruction or action on a request before the jury is instructed and before final jury arguments, as provided by Rule 51(b)(1), objects at the opportunity for objection required by Rule 51(b)(2); or IV) (B) a party that has not been informed of an instruction or action on a request before the time for objection provided under Rule 51(b)(2) objects promptly after learning that the instruction or request will be, or has been, given or refused. (d) Assigning Error; Plain Error. (1) A party may assign as error: (A) an error in an instruction actually given if that party made a proper objection under Rule 51(c), or V) (B) a failure to give an instruction if that party made a proper request under Rule 51(a), and -- unless the court made a definitive ruling on the record rejecting the request -- also made a proper objection under Rule 51(c). (2) A court may consider a plain error in the instructions affecting substantial rights that has not been 64 preserved as required by Rule 51(d)(1)(A) or (B). VI) FRCP 54: Judgments; Costs (a) Definition; Form. i. "Judgment" as used in these rules includes a decree and any order from which an appeal lies. A judgment shall not contain a recital of pleadings, the report of a master, or the record of prior proceedings. (b) Judgment Upon Multiple Claims or Involving Multiple Parties. i. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. VII)ii. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties. (c) Demand for Judgment. i. A judgment by default shall not be different in kind from or exceed in amount that prayed for in the demand for judgment. Except as to a party against whom a judgment is entered by default, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in the party's pleadings. (d) Costs; Attorney's Fees. (1) Costs Other than Attorneys' Fees. 1. Except when express provision therefor is made either in a statute of the United States or in these rules, costs other than attorneys' fees shall be allowed as of course to the prevailing party unless the court otherwise directs; but costs against the United States, its officers, and agencies shall be imposed only to the extent permitted by law. VIII)2. Such costs may be taxed by the clerk on one day's notice. a. On motion served within 5 days thereafter, the action of the clerk may be reviewed by the court. (2) Attorneys' Fees. (A) Claims for attorneys' fees and related nontaxable expenses shall be made by motion unless the substantive law governing the action provides for the recovery of such fees as an element of damages to be proved at trial. IX) (B) Unless otherwise provided by statute or order of the court, the motion a. must be filed and served no later than 14 days after entry of judgment; X) b. must specify the judgment and the statute, rule, or other grounds entitling the moving party to the award; and XI) c. must state the amount or provide a fair estimate of the amount sought. XII)d. If directed by the court, the motion shall also disclose the terms of any agreement with respect to fees to be paid for the services for which claim is made. (C) On request of a party or class member, the court shall afford an opportunity for adversary submissions with respect to the motion in accordance with Rule 43(e) or Rule 78. The court may determine issues of liability for fees before receiving submissions bearing on issues of evaluation of services for which liability is imposed by the court. The court shall find the facts and state its conclusions of law as provided in Rule 52(a). XIII)(D) By local rule the court may establish special procedures by which issues relating to such fees may be resolved without extensive evidentiary hearings. In addition, the court may refer issues relating to the value of services to a special master under Rule 53 without regard to the provisions of Rule 53(a)(1) and a. may refer a motion for attorneys' fees to a magistrate judge under Rule 72(b) as if it were a dispositive pretrial matter. (E) The provisions of subparagraphs (A) through (D) do not apply to claims for fees and expenses as sanctions for violations of these rules or under 28 U.S.C. § 1927. XIV) FRCP 55: Default (a) Entry. i. When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise, the clerk shall enter the party's default. (b) Judgment. Judgment by default may be entered as follows: (1) By the Clerk. 1. When the plaintiff's claim against a defendant is for a sum certain or for a sum which can by computation be made certain, the clerk upon request of the plaintiff and upon affidavit of the amount due shall enter judgment for that amount and costs against the defendant, if the defendant has been defaulted for failure to appear and is not an infant or incompetent person. (2) By the Court. 1. In all other cases the party entitled to a judgment by default shall apply to the court therefor; a. but no judgment by default shall be entered against an infant or incompetent person unless represented in the action by a general guardian, committee, conservator, or other such representative who has appeared therein. 2. If the party against whom judgment by default is sought has appeared in the action, the party (or, if appearing by representative, the party's representative) shall be served with written notice of the application for judgment at least 3 days prior to the hearing on such application. XV)3. If, in order to enable the court to enter judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any other matter, the court may conduct such hearings or order such references as it deems necessary and proper and shall accord a right of trial by jury to the parties when and as required by any statute of the United States. (c) Setting Aside Default. i. For good cause shown the court may set aside an entry of default and, if a judgment by default has been entered, may likewise set it aside in accordance with Rule 60(b) (d) Plaintiffs, Counterclaimants, Cross-Claimants. i. The provisions of this rule apply whether the party entitled to the judgment by default is a plaintiff, a third-party plaintiff, or a party who has pleaded a cross-claim or counterclaim. In all cases a judgment by default is subject to the limitations of Rule 54(c). (e) Judgment Against the United States. i. No judgment by default shall be entered against the United States or an officer or agency thereof unless the claimant establishes a claim or right to relief by evidence satisfactory to the court. XVI) FRCP 56: Summary Judgment (a) For Claimant. i. A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment may, at any time after the expiration of 20 days from the commencement of the action or after service of a motion for summary judgment by the adverse party, move with or without supporting affidavits for a summary judgment in the party's favor upon all or any part thereof. 1. П may move for summary judgment to: a. Establish an element, or XVII)b. Negate a defense 2. SJ appropriate when there is no genuine issue of material fact – no facts in dispute between the parties a. Genuine issue – something that’s actually in dispute between the parties b. Material fact – one that would affect the outcome of the case (b) For Defending Party. i. A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in the party's favor as to all or any part thereof. 1. ∆ may move for summary judgment when: a. П has no evidence to support a claim, I) b. ∆ has a defense that defeats П’s claim, or II) c. ∆ has evidence that negates П’s claim (or an element of that claim) i. Must be material (relating to the specific cause of action) III)ii. Must be genuine (no scintilla of evidence standard) 2. Ex: Colston v. Barnhart (5th Cir.) - B/c the ∆ officer's use of deadly force to defend himself and others from П was objectively reasonable, there was no genuine issue of material fact and ∆ was entitled to summary judgment on grounds of qualified immunity. (c) Motion and Proceedings Thereon. i. The motion shall be served at least 10 days before the time fixed for the hearing. 1. The adverse party prior to the day of hearing may serve opposing affidavits. ii. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. 1. Moving party has the burden of showing (burden of persuasion) the absence of a genuine issue as to any material fact, and for these purposes the material it lodged must be viewed in the light most favorable to the opposing party – Adickes v. Kress a. Burden of production shifts back and forth i. П has the burden of production (direct or indirect), if met then the employer must articulate a legitimate reason for the action, then, if employer does so, burden shifts back to the employee to provide evidence that would, if believed by a trier of fact, show the true reason that the action was discriminatory – Sattar v. Motorola 1. П – presumption IV) 2. ∆ - non-discriminating theory V) 3. П – must show pretextual 2. There is no express or implied requirement that the moving party support its motion with affidavits or other similar claims negating the opponent’s claim. - Celotex VI) 3. Focus on sufficiency of the facts (thus motion usually made at the close of pleadings/discovery) VII)4. To get to the jury, only need to show that reasonable minds could differ iii. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages. (d) Case Not Fully Adjudicated on Motion. i. If on motion under this rule judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary, the court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel, shall if practicable ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted. It shall thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are just. Upon the trial of the action the facts so specified shall be deemed established, and the trial shall be conducted accordingly. 1. Motion for partial summary judgment as to a claim or to an element of a claim (e) Form of Affidavits; Further Testimony; Defense Required. i. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. VIII)ii. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party. 1. Where the evidentiary matter in support if the motion does not establish the genuine issue, summary judgment must be denied even if no opposing evidentiary matter is provided – Adickes v. Kress IX) 2. This subsection is not intended to reduce or add to movant’s burden – Celotex X) 3. The inquiry involved in a ruling on a motion for summary judgment or for a directed verdict necessarily implicates the substantive evidentiary standard of proof that would apply at trial on the merits - Anderson (f) When Affidavits are Unavailable. i. 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 court 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. (g) Affidavits Made in Bad Faith. i. Should it appear to the satisfaction of the court at any time that any of the affidavits presented pursuant to this rule are presented in bad faith or solely for the purpose of delay, the court shall forthwith order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused the other party to incur, including reasonable attorney's fees, and any offending party or attorney may be adjudged guilty of contempt. XI) FRCP 57: Declaratory Judgments (where would-be ∆ is a П) a) The procedure for obtaining a declaratory judgment pursuant to 29 U.S.C. §2201, shall be in accordance with these rules, and the right to trial by jury may be demanded under the circumstances and in the manner provided in Rules 38 and 39. XII)b) The existence of another adequate remedy does not preclude a judgment for declaratory relief in cases where it is appropriate. XIII)c) The court may order a speedy hearing of an action for a declaratory judgment and may advance it on the calendar XIV) XV) XVI) FRCP 58: Entry of Judgment (a) Separate Document (1) Every judgment and amended judgment must be set forth on a separate document, but a separate document is not required for an order disposing of a motion: (A) for judgment under Rule 50(b); a. Renewal of motion after trial for Judgment as a Matter of Law (B) to amend or make additional findings of fact under Rule 52(b); XVII)(C) for attorney fees under Rule 54; XVIII)(D) for a new trial, or to alter or amend the judgment, under Rule 59; or XIX)(E) for relief under Rule 60. (2) Subject to Rule 54(b): (Judgment upon multiple claims or involving multiple parties) (A) unless the court orders otherwise, the clerk must, without awaiting the court's direction, promptly prepare, sign, and enter the judgment when: (i) the jury returns a general verdict XX)(ii) the court awards only costs or a sum certain, or XXI)(iii) the court denies all relief; (B) the court must promptly approve the form of the judgment, which the clerk must promptly enter, when: (i) the jury returns a special verdict or a general verdict accompanied by interrogatories, or XXII)(ii) the court grants other relief not described in Rule 58(a)(2). (b) Time of Entry. Judgment is entered for purposes of these rules: (1) If Rule 58(a)(1) does not require a separate document, when it is entered in the civil docket under Rule 79(a), and XXIII)(2) If Rule 58(a)(1) requires a separate document, when it is entered in the civil docket under Rule 79(a) and when the earlier of these events occurs: (A) when it is set forth on a separate document, or XXIV)(B) when 150 days have run from entry in the civil docket under Rule 79(a). (c) Cost of Fee Awards. (1) Entry of judgment may not be delayed, nor the time for appeal extended, in order to tax costs or award fees, except as provided in Rule 58(c)(2). XXV)(2) When a timely motion for attorney fees is made under Rule 54(d)(2), the court may act before a notice of appeal has been filed and has become effective to order that the motion have the same effect under Federal Rule of Appellate Procedure 4(a)(4) as a timely motion under Rule 59. (d) Request for Entry. i. A party may request that judgment be set forth on a separate document as required by Rule 58(a)(1). General statutory trend that judgment is valid/executable once it’s ruled upon (rather than having to wait for its recordation) – Jackson v. Sears i. Although with recordation time is easier to calculate FRCP 59: New Trials; Amendment of Judgments (a) Grounds. A new trial may be granted to all or any of the parties and on all or part of the issues (1) in an action in which there has been a trial by jury, for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of the United States; and (2) in an action tried without a jury, for any of the reasons for which rehearings have heretofore been granted in suits in equity in the courts of the United States. 1. On a motion for a new trial in an action tried without a jury, the court may open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new findings and conclusions, and direct the entry of a new judgment. (b) Time for Motion. i. Any motion for a new trial shall be filed no later than 10 days after entry of the judgment. (c) Time for Serving Affidavits. i. When a motion for new trial is based upon affidavits, they shall be filed with the motion. The opposing party has 10 days after service to file opposing affidavits, 1. but that period may be extended for up to 20 days, either by the court for good cause or by the parties' written stipulation. The court may permit reply affidavits. (d) On Initiative of Court. i. No later than 10 days after entry of judgment the court, on its own, may order a new trial for any reason that would justify granting one on a party's motion. After giving the parties notice and an opportunity to be heard, the court may grant a timely motion for a new trial for a reason not stated in the motion. When granting a new trial on its own initiative or for a reason not stated in a motion, the court shall specify the grounds in its order. (e) Motion to Alter or Amend a Judgment. i. Any motion to alter or amend a judgment shall be filed no later than 10 days after entry of the judgment. FRCP 60: Relief from Judgment or Order (a) Clerical Mistakes. i. Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders. ii. During the pendency of an appeal, such mistakes may be so corrected before the appeal is docketed in the appellate court, and thereafter while the appeal is pending may be so corrected with leave of the appellate court. (b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, Etc. i. On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; a. One year limit (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); a. One year limit (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; a. One year limit (4) the judgment is void; a. Reasonable time (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or a. Reasonable time (6) any other reason justifying relief from the operation of the judgment. a. Reasonable time b. Attorney mistake not excusable under this subsection without proof of extraordinary circumstances – Cirami i. client diligence and agency relationship c. Must be extraordinary circumstances – Ackermann v. US i. Important to make a free choice to appeal and be diligent regarding timing ii. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken. iii. A motion under this subdivision (b) does not affect the finality of a judgment or suspend its operation. iv. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to grant relief to a defendant not actually personally notified as provided in Title 28, U.S.C., § 1655, or to set aside a judgment for fraud upon the court. v. Writs of coram nobis, coram vobis, audita querela, and bills of review and bills in the nature of a bill of review, are abolished, and the procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules or by an independent action. FRCP 61: Harmless Error a) No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. b) The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties. FRCP 68: Offer of Judgment a) At any time more than 10 days before the trial begins, a party defending against a claim may serve upon the adverse party an offer to allow judgment to be taken against the defending party for the money or property or to the effect specified in the offer, with costs then accrued. i. Settlements entered into by an attorney clothed in apparent authority are to be upheld – Edwards v. Born 1. Client to seek remedy against attorney b) If within 10 days after the service of the offer the adverse party serves written notice that the offer is accepted, either party may then file the offer and notice of acceptance together with proof of service thereof and thereupon the clerk shall enter judgment. i. Consent judgment gives rise to res judicata c) An offer not accepted shall be deemed withdrawn and evidence thereof is not admissible except in a proceeding to determine costs. d) If the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer. i. The fact that an offer is made but not accepted does not preclude a subsequent offer. When the liability of one party to another has been determined by verdict or order or judgment, but the amount or extent of the liability remains to be determined by further proceedings, the party adjudged liable may make an offer of judgment, which shall have the same effect as an offer made before trial if it is served within a reasonable time not less than 10 days prior to the commencement of hearings to determine the amount or extent of liability. FRCP 82: Jurisdiction and Venue Unaffected a) Rules shall not be construed to extend or limit the jx of the district courts or the venue of the actions therein. b) An admiralty or maritime claim within the meaning of Rule 9(h) shall not be treated as a civil action for the purposes of Title 28 U.S.C. §§ 1391-1392. FRCP 84: Forms a) The forms contained in the Appendix of Forms are sufficient under the rules and are intended to indicate the simplicity and brevity of statement which the rules contemplate. §1335 Interpleader (a) The district courts shall have original jurisdiction of any civil action of interpleader or in the nature of interpleader filed by any person, firm or corporation, association, or society having in his or its custody or possession money or property of the value of $500 or more, or having issued a note, bond, certificate, policay of insurance, or other instrument of value or amount of $500 or more, or providing for the delivery or payment or the loan of money or property of such amount or values, or being under any obligation written or unwritten to the amount of $500 or more, if: (1) Two or more adverse claimants, of diverse citizenship as defined in section 1332 of this title, and if 1. Minimum diversity (2) The plaintiff has deposited such money or property into the court (b) Such action may be entertained although the titles or claims of the conflicting claimants do not have a common origin, or are not identical, but are adverse to and independent of one another §1367 Supplemental Jurisdiction (a) Jurisdiction over all other claims that are part of same case or controversy (b) No supplemental jurisdiction over claims by plaintiff against persons made parties under i. Rules 14, 19, 20, or 24 ii. Or over persons seeking Rule 19 joinder or Rule 24 intervention if jurisdiction over such claims would be inconsistent with requirements of section 1332 (diversity jurisdiction) (c) District court may decline supplemental jurisdiction if (1) claim raises a novel or complex issue of state law’ (2) claim substantially predominates over the claims over which the district court has original jurisdiction, (3) district court has dismissed all claims over which it had jurisdiction; or (4) in exceptional circumstances there are other compelling reasons for declining jurisdiction (d) The period of limitations of any claim asserted under subsection (a) shall be tolled for 30 days after it is dismissed (e) “State” includes the District of Columbia, the Commonwealth of Puerto Rico, and any other territory or possession of the US §1397 Interpleader Any civil action of interpleader or in the nature of interpleader under §1335 may be brought in the judicial district in which one or more of the claimaints reside. §2361 Process and Procedure [of Interpleader] a) In any civil action of interpleader or in the nature of interpleader under §1335, a district court may issue its process for all claimants and enter its order restraining them from instituting or prosecuting any proceeding in any State or United States court affecting the property, instrument or obligation involved in the interpleader action until further order of the court. Such process and order shall be returnable at such time as the court or judge thereof directs, and shall be addressed to and served by the United States marshals for the respective districts where the claimants reside or may be found. b) Such district court shall hear and determine the case, and may discharge the plaintiff from further liability, make the injunction permanent, and make all appropriate orders to enforce its judgment. §1738 Full Faith and Credit -- The Acts of legislature of any State, Territory, or Possession of the United States, or copies thereof, shall be authenticated by affixing the seal of such State, Territory or Possession thereto. -- The records and judicial proceedings of any court of any such State, Territory or Possession, or copies thereof, shall be proved or admitted in other courts within the United States and its Territories and Possessions by the attestation of the clerk and seal of the court annexed, if a seal exists, together with a certificate of a judge of the court that the said attestation is in proper form. -- Such Acts, records and judicial proceedings or copies thereof, so authenticated, shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken. a) Interstate recognition i. The judgment of a state court should have the same credit, validity, and effect in every other court in the US which it had in the state where it was pronounced, and that whatever pleas would be good to a suit thereon in such state, and none others, could be pleaded in any other court in the US – Fauntleroy v. Lum 1. Whether ruling of other state’s court upon the matter was right or wrong, there can be no question that the judgment was conclusive in that state in the validity of the cause of action a. The only exception to this is personal or subject matter jurisdiction i. Jurisdiction is a constitutionally-based principle and a judgment without jurisdiction is void b. To challenge the application of law, a direct appeal should have been had b) State - Federal recognition i. A federal court can apply state rules of issue preclusion to determine if a matter actually litigated in state court may be re-litigated in a subsequent federal proceeding – Marrese 1. The full faith and credit statute directs a federal court to refer to preclusion law in the state where judgment was rendered 2. Under FFC, a federal court must give the same preclusive effect to a state court judgment as another court of the state would give - Parsons Steel Inc. v. First Alabama Bank §1927 Counsel’s Liability for excessive costs a) Any attorney or other person admitted to conduct cases in any court of the US or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorney’s fees reasonably incurred because of such conduct Federal Rules of Evidence - 501 Except as otherwise required by the Constitution of the United States or provided by Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority, the privilege of a witness, person, government, State, or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the privilege of a witness, person, government, State, or political subdivision thereof shall be determined in accordance with State law. Federal Rules of Evidence - 606 (a) At the trial. A member of the jury may not testify as a witness before that jury in the trial of the case in which the juror is sitting. If the juror is called so to testify, the opposing party shall be afforded an opportunity to object out of the presence of the jury. (b) Inquiry into validity of verdict or indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith. But a juror may testify about (1) whether extraneous prejudicial information was improperly brought to the jury's attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form. ** 606(b) allows a post-verdict inquiry only in cases of substantial, if not wholly conclusive, evidence of incompetency A juror's affidavit or evidence of any statement by the juror may not be received on a matter about which the juror would be precluded from testifying. (c) FRE 606 protects the jury verdict – prevents jurors from giving testimony about what happened during jury deliberations. Exception: If evidence of outside influence, the court could be forced to open up deliberations and admit juror testimony. - Tanner Res Judicata (Claim Preclusion) a) Res judicata precludes relitigation of an earlier claim if the following elements are met. b) Elements to be met for a claim to be barred by res judicata: i. Final judgment had on the merits 1. Both 12(b)(6) motion and motion for summary judgment are on the merits and with prejudice because the party had their chance 2. Default judgment on the merits 3. Second voluntary dismissal is also in the merits and with prejudice ii. A court of competent jx must have rendered the prior judgment iii. Same claims/claims that could have been brought 1. Rule 18(a) – same transaction or occurrence 2. Two actions must be based on “same nucleus of operative facts” - Davis v. Dallas Area Rapid Transit (5th Cir.) 3. Permissive claims not brought are not barred for later adjudication iv. Same parties (or their privies--those in privity of contract) 1. Parties in both prior suit and current suit must be identical 2. GR = A party not joined is not bound by RJ, even if they could have been joined as parties, unless they're in privity of contract c) A final judgment on the merits of an action precludes the parties or their privies from re-litigating [claims] that were or could have been raised in that action – Federated Dept. Stores v. Moitie i. The res judicata consequences of a final, unappealed judgment on the merits are not altered by the fact that the judgment may have been wrong or rested on a legal principle subsequently overruled in another case. It can be corrected only on direct review and not by bringing another action upon the same cause of action ii. Res judicata is a rule of fundamental and substantial justice and vital to the public interest 1. Public policy requires an end to litigation so the matter is forever settled between parties iii. RJ operates as a defense that is waived by failure to raise it. iv. Purposes of res judicata: (a)Judicial efficiency (b)Finality for the parties (c)Want people to think we got it right the first time (d)Consistency – fairness to the parties d) Former language i. Merger – if party wins, all claims brought/claims that could have been brought merge into that judgment 1. If P wins a judgment on a part of the total harm suffered, and in a second suit seeks recovery on the remaining loss, D will argue merger. If jx views the P as having only one cause of action for all affirmative relief, P's rights (including relief that might have been sought in the first suit) merged in the first judgment. 2. Merger is term applied to a winner who splits a cause of action. ii. Bar – if party loses, all claims brought/could have been brought are gone and barred 1. If P loses in a first action and seeks by subsequent litigation to recover for other injury, D will argue bar. If the jx describes the P as having only one cause of action for all affirmative relief, the first judgment bars the second suit. 2. Bar is the term applied to a loser who splits a cause of action. e) Compare to state court (California) i. Each “Primary Right” has a corresponding cause of action, thus if more than one primary right offended, more than one cause of action to be had – Sawyer v. First City Financial 1. Causes are severable Non-Mutual Collateral Estoppel (Issue Preclusion) a) Collateral estoppel precludes relitigation of an issue that was actually litigated and necessary to the final decision in a previous case. b) Elements necessary to successfully invoke collateral estoppel – Tutuer Associates v. Taubensee Steel i. Same issue as in prior litigation ii. Issue actually litigated iii. Full and fair opportunity to litigate iv. Determination of issue essential to the final judgment 1. Issue was necessary to the final decision in a previous case v. Party against whom collateral estoppel is being asserted was represented c) Can only assert collateral estoppel against a party that was a party to a prior action i. Non-prior parties deserve their chance to defend on new ground ii. Party not bound by a decision to which they were not a party d) Collateral estoppel only applies to final judgment on that issue e) Ex. Levy v. Kosher Overseers Association of America (2nd Cir.) - Application of collateral estoppel inappropriate b/c the issues litigated in the two fora were not identical. "Likelihood of confusion" inquiry in certification mark registration proceedings was not sufficiently identical to the multi-factor commercial context inquiry required in an infringement action. f) Ex. Jacobs v. CBS Broadcasting, Inc. (9th Cir.) - It is appropriate to give collateral estoppel effect to findings made during an arbitration, so long as the arbitration had the elements of an adjudicatory procedure. However, the Writers Guild proceedings were too informal and there were insufficient procedural safeguards and formalities in the proceeding to bind the non-participating parties. Thus collateral estoppel not applicable. i. Full and fair opportunity to litigate - some of the procedural mechanisms to satisfy this: 1. Adversarial proceeding 2. Impartial hearing officer 3. Witnesses testify under oath 4. Cross examination of witnesses g) Defensive v. Offensive collateral estoppel i. Defensive -- CE can be used defensively (as a shield) by one who was not a party to the first action against one who was a party. ii. Offensive -- CE can be used offensively (as a sword) by one who was not a party to the first action against one who was a party. 1. Offensive collateral estoppel not permitted where: a. П could have easily joined in the earlier action, or b. Application of offensive estoppel would be unfair to a ∆ c. Broad discretion of trial court – Parklane Hoisery v. Shore 2. Why offensive collateral estoppel is problematic a. Free rider concern (increase in litigation) b. Unfairness to П if she did not fully defend the first time around as a matter of strategy i. Issue of foreseeability of subsequent/copycat litigation a factor c. Courts know that offensive CE may increase rather than decrease the total amount of litigation. i. If the second-action P could always use offensive CE, then a potential P has every incentive to adope a "wait and see" attitude in the hopes that the first action by another plaintiff will result in a favorable judgment. - Parklane Hoisery 3. Factors for court to consider (allows for wiggle room) a. Procedural benefits that might not have been available first time around i. Such a right to jury trial b. Whether П could have joined prior litigation c. Forseeability of other suits i. Thus contemplation of issue preclusion d. Unfairness to ∆ i. Catch-all e. Risk of inconsistent judgments h) Visualization i. Defensive Collateral Estoppel П1 v. ∆1 (no patent) П1 v. ∆2 (assert that no patent) ← assert collateral estoppel ii. Offensive Collateral Estoppel П1 v. ∆1 (proxy fraudulent) П2 v. ∆1 (assert that proxy fraudulent) Assert collateral estoppel → Review of the Disposition – Appeals a) Right to appeal up to the next level (no right to appeal to USSC) b) Only final judgments may be appealed - 1291 i. Generally can't appeal interlocutory rulings ii. Exceptions 1. Rule 23(f) class certification 2. Interlocutory appeals a. Must be approved by the district court and by the appeals court b. Factors to determine i. Controlling question of law ii. Substantial ground for difference of opinion iii. If certification will materially advance the ultimate termination of the litigation 3. Collateral Orders Doctrine a. Elements: i. Important right might be lost ii. Unrelated to the merits iii. Conclusive may be mooted b. Requirements for an appeal by the federal case-created collateral order doctrine are fulfilled if trial judge renders an interlocutory order that: i. conclusively determines that disputed question; ii. resolves an important issue completely separate from the merits of the action; and iii. is effectively unreviewable on appeal from a final judgment. c. When can collateral orders be appealed: i. Qualified immunity – Colston d. This is a very narrow exception e. An order denying effect to a settlement agreement does not come within the narrow ambit of collateral orders. - Digital Equipment v. Desktop Direct. Petitioner's appeal dismissed b/c the refusal to enforce the settlement agreement that was claimed to shelter the parties from breach of contract did not supply the basis for immediate appeal under a collateral order appeal. 4. If they can’t collaterally appeal, what other remedies do they have: a. Case will go forward on the merits b. Mandamus – another exception to the final judgment rule c. 1292(a) – automatic – you can appeal certain interlocutory appeals d. 1292(b) – discretionary – you can appeal immediately if the order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation d) Notice of appeal triggers the appellate jurisdiction e) Writ of Mandamus is for extraordinary circumstances only - 28 U.S.C. §1651 i. Rare ii. Writ of mandamus – when appropriate: (i) no other adequate remedy (ii) clear and indisputable right to writ (iii)extraordinary circumstances ii. Ex. Kerr v. U.S. District Court - Court found that the procedure developed by the court of appeals to resolve the discovery issue was adequate for the nature of the problem, and that the drastic remedy of mandamus was unnecessary. (Prisoners class action for constitutional violations of manner in which the CAA carries out its function of determining the length and conditions of punishment for convicted criminal offenders. Prisoners requested production of CAA personnel files and prisoners' files, CAA objected, and then sought issuance of writs of mandamus to compel DC to vacate two discovery orders. Court of Appeals intended to afford petitioners the opportunity to apply for and upon proper application, receive in camera review of their claims.) f) Standard of Review in Appeals i. Reviewing courts must review factual findings of the trial judge under the clearly-erroneous standard, and they do not decide factual issues de novo. - Anderson ii. Thus, if district court’s account of the evidence is plausible in light of the record viewed in its entirety, court of appeals may not reverse it even though it is convinced that it would have weighed the evidence differently if it had been sitting as the trier of fact. §1257 State Courts; Certiorari (a) Final judgments or decrees rendered by the highest court of a State in which a decision could be had, may be reviewed by the Supreme Court by writ of certiorari where the validity of a treaty or statute of the United States is drawn in question or where the validity of a statute of any State is drawn in question on the ground of its being repugnant to the Constitution, treaties, or laws of the United States, or where any title, right, privilege, or immunity is specially set up or claimed under the Constitution or the treaties or statutes of, or any commission held or authority exercised under, the United States. (b) For the purposes of this section, the term "highest court of a State" includes the District of Columbia Court of Appeals. §1291 Final Decisions of District Courts (a) The courts of appeals (other than the United States Court of Appeals for the Federal Circuit) shall have jurisdiction of appeals from all final decisions of the district courts of the United States, the United States District Court for the District of the Canal Zone, the District Court of Guam, and the District Court of the Virgin Islands, except where a direct review may be had in the Supreme Court. The jurisdiction of the United States Court of Appeals for the Federal Circuit shall be limited to the jurisdiction described in sections 1292(c) and (d) and 1295 of this title [28 USCS §§ 1292(c) and (d) and 1295]. (b) Congress has given to federal courts subject matter jx over appeals from all final decisions of the federal district trial courts - Final Judgment Rule. A final judgment is generally defined as one that disposes of all issues to all parties. §1292 Interlocutory Decisions Injunctions can be appealed (interlocutory appeal) -- exception to the Final Judgment Rule (a) Except as provided in subsections (c) and (d) of this section, the courts of appeals shall have jurisdiction of appeals from: (1) Interlocutory orders of the district courts of the United States, the United States District Court for the District of the Canal Zone, the District Court of Guam, and the District Court of the Virgin Islands, or of the judges thereof, granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions, except where a direct review may be had in the Supreme Court; 1292(a)(1) - Federal courts have subject matter jx over appeals from an interlocutory order of the trial court that grants, denies, continues or dissolves an injunction (basically an injunction is appealable) A trial court order denying a motion to stay or dismiss an action when a similar suit is pending in state court is not appealable as an order denying injunctive relief under 1292(a)(1). [Gulfstream Aerospace v. Mayacamas Corp.] (2) Interlocutory orders appointing receivers, or refusing orders to wind up receiverships or to take steps to accomplish the purposes thereof, such as directing sales or other disposals of property; (3) Interlocutory decrees of such district courts or the judges thereof determining the rights and liabilities of the parties to admiralty cases in which appeals from final decrees are allowed. (b) When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals which would have jurisdiction of an appeal of such action may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order: Provided, however, That application for an appeal hereunder shall not stay proceedings in the district court unless the district judge or the Court of Appeals or a judge thereof shall so order. Trial judge can certify an order for appeal when he believes the order: (1) involves a controlling question of law as to which there is substantial ground for difference of opinion, AND (2) that an immediate appeal from the order may materially advance the termination of the litigation Following the written certification, the party who seeks appeal must apply to the federal court of appeals for it to accept the matter. The court of appeals is vested w/ the sole discretion to grant or deny the application. (c) The United States Court of Appeals for the Federal Circuit shall have exclusive jurisdiction-- (1) of an appeal from an interlocutory order or decree described in subsection (a) or (b) of this section in any case over which the court would have jurisdiction of an appeal under section 1295 of this title [28 USCS § 1295]; and (2) of an appeal from a judgment in a civil action for patent infringement which would otherwise be appealable to the United States Court of Appeals for the Federal Circuit and is final except for an accounting. (d) (1) When the chief judge of the Court of International Trade issues an order under the provisions of section 256(b) of this title [28 USCS § 256(b)], or when any judge of the Court of International Trade, in issuing any other interlocutory order, includes in the order a statement that a controlling question of law is involved with respect to which there is a substantial ground for difference of opinion and that an immediate appeal from that order may materially advance the ultimate termination of the litigation, the United States Court of Appeals for the Federal Circuit may, in its discretion, permit an appeal to be taken from such order, if application is made to that Court within ten days after the entry of such order. (2) When the chief judge of the United States Court of Federal Claims issues an order under section 798(b) of this title [28 USCS § 798(b)], or when any judge of the United States Claims Court [United States Court of Federal Claims], in issuing an interlocutory order, includes in the order a statement that a controlling question of law is involved with respect to which there is a substantial ground for difference of opinion and that an immediate appeal from that order may materially advance the ultimate termination of the litigation, the United States Court of Appeals for the Federal Circuit may, in its discretion, permit an appeal to be taken from such order, if application is made to that Court within ten days after the entry of such order. (3) Neither the application for nor the granting of an appeal under this subsection shall stay proceedings in the Court of International Trade or in the Claims Court [Court of Federal Claims], as the case may be, unless a stay is ordered by a judge of the Court of International Trade or of the Claims Court [Court of Federal Claims] or by the United States Court of Appeals for the Federal Circuit or a judge of that court. (4) (A) The United States Court of Appeals for the Federal Circuit shall have exclusive jurisdiction of an appeal from an interlocutory order of a district court of the United States, the District Court of Guam, the District Court of the Virgin Islands, or the District Court for the Northern Mariana Islands, granting or denying, in whole or in part, a motion to transfer an action to the United States Claims Court [United States Court of Federal Claims] under section 1631 of this title [28 USCS § 1631]. (B) When a motion to transfer an action to the Claims Court [Court of Federal Claims] is filed in a district court, no further proceedings shall be taken in the district court until 60 days after the court has ruled upon the motion. If an appeal is taken from the district court's grant or denial of the motion, proceedings shall be further stayed until the appeal has been decided by the Court of Appeals for the Federal Circuit. The stay of proceedings in the district court shall not bar the granting of preliminary or injunctive relief, where appropriate and where expedition is reasonably necessary. However, during the period in which proceedings are stayed as provided in this subparagraph, no transfer to the Claims Court [Court of Federal Claims] pursuant to the motion shall be carried out. (e) The Supreme Court may prescribe rules, in accordance with section 2072 of this title [28 USCS § 2072], to provide for an appeal of an interlocutory decision to the courts of appeals that is not otherwise provided for under subsection (a), (b), (c), or (d).
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