Civ Pro Outline by JohnMValentine

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									Pleadings Audience of the pleadings?  Court. What do they want to know? o What kind of case. o Does the court have jurisdiction. o Does the law recognize the sort of claim being brought? Is the harm complained of protectable under the law?  Defendant. What do they want to know? o The allegations. o How much is at stake. o The facts that subject the defendant to personal jurisdiction in the forum. Plea Jurisdiction Rough Translation Not here Example Defendant asserts that this case does not belong in federal court. Case should not proceed because defendant is on active duty in the armed services and unable to defend self until discharged. Defendant asserts case brought in wrong venue. Defendant asserts that allegations of complaint do not state a claim. Defendant asserts that allegations of complaint are false. Defendant asserts that statute of limitations has run on claim. Effect Court dismisses case which can be refilled in the proper court. Court stays case until defendant discharged from service. Modern Pleading Analogue Rule 12(b)(1)(2)


Not now

Typically handled as a defense or by more comprehensive statutory scheme.


Not until this is fixed.

Court transfers or dismisses. Court dismisses case.

Rule 12(b)(3)


So what?

Rule 12(b)(6)


Didn’t happen or I didn’t do it. Yes but…

Confession and Avoidance

Court grants judgment on merits for defendant. Court grants judgment on merits for defendant.

Denial (continued in answer) Affirmative defense, Rule 8(c)

Rule 8 General Rule of Pleading  (a)Claim for Relief o (1)A recitation of the basis for jurisdiction. o (2)A ‘short and plain statement’ of the claim showing that the pleader is entitled to relief. o (3)A demand for judgment for the relief sought.  (b)Defenses; Admissions and Denials o The defendant must deny those allegations which he actually disputes and those not denied are admitted. o Defenses respond to legal claims. Denials respond to specific allegations. o (3)General and Specific Denials  General denials must be done in good faith to deny all allegations of a pleading, including jurisdictional grounds.  General denials are rare. They can lead to Rule 11 sanctions or other bad things.

o (5)Lacking Knowledge or Information  A party that doesn’t have enough information to admit or deny must state so and it is effectively a denial. o (6)Effect of Failing to Deny  An allegation, other than one relating to the amount of damages, is admitted if a responsive pleading is required and the allegation is not denied. If a responsive pleading is not required, an allegation is considered denied or avoided.  No response = admitted. o Zielinksi v. Philadelphia Piers  PPI gives a general denial.  Plaintiff finds out during discovery they have sued the wrong company and the statute of limitations has run.  Court holds the defendant did not deny they owned the forklift, no party was acting in bad faith and trying to hide said information, and plaintiff relied on said information so PPI is deemed to have admitted it was the owner of the forklift.  (c)Affirmative Defenses o (1)In General. In responding to a complaint, in an answer, the party must state all affirmative defenses.  Note: This is not an exhaustive list or an inclusive list.  Note: Affirmative defenses are a matter of state substantive law. o (2)Mistaken Designation. If a party states an affirmative defense and it is actually a counterclaim, or vice versa, the court, if justice requires, should treat them as the correct one. o Ordinary vs. Affirmative Defenses  What do they have in common?  Both are raised by the defendant.  They are waived if not in a pre-answer motion or answer.  How are affirmative defenses different?  Defendant bears the burden to prove an affirmative defense.  Generally involves introduction of additional facts.  How can you tell between them?  Research the jurisdiction.  If the jurisdiction is undecided, courts consider: o Which party is in a better position to have the facts necessary to establish the defense. o Whether analogous issues are treated as elements of a claim or an affirmative defense. o If the claim arises by statute, if the language and structure treats the issue as part of the claim (element) or an exception to the statute (likely affirmative defense.)  Comparison examples.  Ordinary defense – No personal jurisdiction so then plaintiff has to prove there is.  Affirmative defense – Duress, had a gun to my head, defendant has to prove this. Not going to be seen in the complaint.  (d)Pleading to be Concise and Direct; Alternative Statements; Inconsistency o (1)In General. Each allegation must be simple, concise, and direct. o (2)Alternative Statements of a Claim or Defense. A party can set out any number of alternative or hypothetical statements of claims or defenses. The pleading is sufficient if any of them are. o (3)Inconsistent Claims or Defenses. The separate claims or defenses do not have to be consistent.  Note: Some courts reject complaints that are overly detailed and reject them for being mere evidence or that they stated conclusions. Some cases do require more detailed pleadings. Rule 8(a) Standard  Conley v. Gibson (no longer the standard) o A court should not dismiss a complaint for failure to state a claim unless it is clear that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.

 Bell Atlantic v. Twonbly o New standard: Must plead facts that make it more than just conceivable; must also be plausible.  Reasoning?  If adhering to the Conley test literally, then nothing short of physical impossibility should lead to dismissal of a claim.  Policy Reasons. o Leverage settlements. o Prejudice against defendants. o Discovery is very expensive.  Issues?  What does plausible mean?  What allegations are necessary to meet the standard?  What type of cases will the plausible standard apply in?  Plausible makes the standard subject which may cause variations form judge to judge.  Dissent says the solution is to manage cases better, not to change the Conley standard. Rule 9 Pleading Special Matters  (b)Fraud or Mistake; Conditions of Mind. When alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person’s mind may be alleged generally.  15 U.S.C. 78u-4 (PSLRA) o Example of when a statute has a heightened pleading rule.  Only securities cases covered by this statute. o An even more difficult standard than Rule 9(b). o Statutory, more weight.  Stradford v. Zurich o Defendant counterclaimed alleging fraud. Plaintiff moves to dismiss counterclaim under Rule 9(b). o Court says defendant claims plaintiff lied but do not identify the lie. Gives leave to replead and amend.  Rule 9(b) requires more specificity in pleadings to limit the number of fraud cases brought to court.  Other state and federal laws have special pleading requirements for certain claims.  Some courts, legislatures, and drafters of Rules have bad specificity less required. o California legislature forbids a plaintiff in a personal injury or wrongful death suit to put damages in their initial complaint. Allocating the Elements of a Claim – Important because the party who must plead is the one who must prove.  Jones v. Block o 42 U.S.C. 1983 says prisoners must exhaust all internal prison remedies before resorting to a federal suit. o Court allocates the element of this exhaustion to the defense.  This means the prisoner does not have to plead it in their complaint.  This means the defendant has to prove that the plaintiff did not do it as an affirmative defense.  The court allocates the element in this case by looking to other contexts of ‘exhaustion’ to determine the usual pleading practice. In analogous practice, it is an affirmative defense. Rule 11 Signing Pleadings, Motions, and other Papers; Representations to the Court; Sanctions  (a)Signature. Generally, you must sign all things filed at court.  (b)Representations to the Court. A lawyer or unrepresented party certifies upon filing of a document covered by the rule that it is (1) of proper purpose, (2) non frivolous and grounded in law, and (3)/(4) grounded in evidence.  (c)Sanctions. o (1)Sanctions can be brought by the court or the opposing party. o (2)Must serve with actual motion to other party, allow 21 days to withdraw or amend the offending document, then file correctly if not fixed. o (3)Court may order a party to show why their conduct has not violated Rule 11(b).

o (4)Available sanctions include monetary penalties, mandatory training, penalty to the court. o (5)Court will not impose monetary sanctions on (A) a represented party for violating Rule 11(b)(2) or (B) on its own unless it issued the show-cause order under Rule 11(c)(3). o (6)Order imposing a sanction must describe the conduct and basis for the sanction.  Walker v. Norwest Corp. o Plaintiff’s burden to prove diversity. Plaintiff claimed diversity, defendant serves with Rule 11 motion to amend, no complete diversity. Plaintiff ignores. o Defendant motioned for Rule 12(b)(1), lack of jurisdiction. Court grants both motions.  Christian v. Mattel, Inc. o Under Rule 11, the court can only reward sanctions based on the complaint and follow-on motions, not other things like discovery abuse, misstatements made at oral argument, and other conduct. Responding to the Complaint  Do nothing o Rule 55. Defendants who fail to respond to the complaint can have a default judgment entered against them.  Pre-Answer Motion (Rule 12) o Rule 12(b)  (1)Lack of subject matter jurisdiction  (2)Lack of personal jurisdiction  (3)Improper venue  (4)Insufficient process  (5)Insufficient service of process  (6)Failure to state a claim upon which relief can be granted  (7)Failure to join a party under Rule 19 o Rule 12(c) Motion for Judgments on the Pleadings  Plaintiff moves for judgment on pleadings when facts of defendant’s pleadings fail to establish any defenses.  Ex. Pleadings obviously reveal that the statute of limitations has run on their claim.  Usually requires that an answer already be filed. o Rule 12(e) Motion for a More Definite Statement  Almost never successfully used. Had use when discovery was more limited. o Rule 12(f) Motion to Strike  Most common use to challenge part of a pleading that fails under substantive law.  Like a Rule 12(b)(6) for part of a claim.  Rarer use is to strike irrelevant or prejudicial allegations in a pleading.  To strike ‘redundant, immaterial, impertinent or scandalous matter.’  To strike if information is unrelated or confusing or if complaint is too long.  Using 12(f) in this way is not favored.  Answer o See Rule 8(b) and (c) above. Reply A reply is only required of the plaintiff when the answer contains a counterclaim. Rule 7(a)(3) requires a reply if the answer contains a ‘counterclaim designated as a counterclaim.’ A reply is thus only required if a counterclaim in the answer is labeled as a counterclaim. If that counterclaim is technically an affirmative defense, a reply is not required, although usually given anyway. If an actual counterclaim is labeled as an affirmative defense, a reply is still not required, although, again, often still given. Amendments Rule 15 Amended and Supplemental Pleadings  Three goals: (1) getting to merits, (2) fairness to parties, and (3) efficiency.

 (a)Amendments Before Trial o (1)Amending as a Matter of Course  One amendment allowed before the answer.  After amended complaint, defendant has 20 days to respond with an amended answer. o (2)Other Amendments.  If the other party allows it.  If the court allows it. The court should freely give leave to amend ‘when justice so requires.’  When justice so requires taken to mean: (a) that the would-be amender should have had a good reason for not getting it right in the first place and (b) that allowing the change shouldn’t hurt the other party too much.  Court should give leave freely to amend unless amending would cause undue delay, is in bad faith, there is a dilatory motive, the amendment would be futile, undue prejudice to the other party, repeated failure to cure deficiencies by previous amendments.  Examples of denials to amend: complicate trial or amendment asked for on the eve of trial. o (3)Time to Respond. Unless the court says otherwise, any required response to an amended pleading must be made within the time remaining to respond to the original pleading or within 10 days after the service of the amended pleading, whichever is later. o Beeck v. Aquaslide ‘N’ Dive Corp  Aquaslide admits they manufactured a slide Beeck got hurt on. After inspection, they want to amend their answer to deny manufacture as the slide is counterfeit.  Court allows amendment. Amendment should be given freely. No bad faith on Aquaslide. Would be prejudicial against Aquaslide to not allow amendment.  Court also bifurcates the trial to determine manufacturer.  (c)Relation Back of Amendments o (A)An amendment relates back to the original filing when the law that provides the applicable statute of limitations allows relation back. o (B)An amendment relates back to the original filing when ‘the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out – or attempted to be set out – in the original pleading. o (C)The amended complaint changes the party and that party had some reasonable reason to be put on notice already. o Why Rule 15(c) important? Without it, it would be futile to amend if the statute of limitations is up because a Rule 12(b)(6) motion would get rid of it. o Why limit relation back? If no limits, then statutes of limitations are useless, and we need them. o Moore v. Baker  Plaintiff’s original claim was for informed consent for failing to advise her of an alternative therapy to surgery. Plaintiff wants to amend to add negligence claim after the SoL has run.  Court holds the standard is not met. The original claim did not put defendant on notice about the new one. o Bonerb v. Richard J. Caron Foundation  Plaintiff injured during mandatory exercise program and sues for negligence. Plaintiff wants to amend to add negligence claim after the SoL has run.  Court holds the standard is met. The two claims stem from the same common nucleus of operative fact and the first claim put defendant on notice of the possibility of the new claim. o How to reconcile Moore and Bonerb?  The timing of the amendment.  The type of claim brought first.  Moore: Esoteric to what could be reasonably assumed. If not sued for negligence first, probably not going to be sued for it at all.  Bonerb: General to specific. o Note: 15(c) is only about relation back so the ‘so justice requires’ still has to be satisfied.

Joinder  Joinder extends to all parties.  Available only when jurisdictional requirements are met.  Opposing parties may file counterclaims against one another.  Co-parties may file cross-claims against one another (D1 sues D2.)  Parties may implead other parties to seek indemnity or contribution.  Under certain circumstances, parties may be joined.  In limited circumstances, third parties may voluntarily intervene to protect their interests. Rule 18 Joinder of Claims  (a)In General. A party asserting a claim, counterclaim, crossclaim, or third-party claim may join, as independent o alternative claims, as many claims as it has against an opposing party.  (b)Joinder of Contingent Claims. A party may join two claims even though one of them is contingent on the disposition of the other; but the court may grant relief only in accordance with the parties’ relative substantive rights. In particular, a plaintiff may state a claim for money and a claim to set aside a conveyance that is fraudulent as to that plaintiff, without first obtaining a judgment for the money.  Note: The claims here do NOT have to be related. BUT this does NOT satisfy jurisdiction. o Remember §1367 Supplemental Jurisdiction.  The Rules eliminated all barriers to joinder of claims by plaintiff. A single plaintiff can join any and all claims he has against a single defendant. But the Rules also say, under 42(b), that a judge can sever claims for convenience. Rule 18 permits joinder but does not compel it. But there is pressure to join related claims because if a court finds that a subsequent claim was related to a previous one and it could have been joined, it might bar it (claim preclusion.) Moreover, a plaintiff will probably want to join all their related claims against a single defendant anyway. Rule 42 Consolidation; Separate Trials  (a)Consolidation. If actions before the court involve a common question of law or fact, the court may: 1. Join for hearing or trial any or all matters at issue in the actions; 2. Consolidate the actions; or 3. Issue any other orders to avoid unnecessary cost or delay.  (b)Separate Trials. For convenience, to avoid prejudice, or to expedite and economize, the court may order a separate trial of one or more separate issues, claims, crossclaims, counterclaims, or third-party claims. When ordering a separate trial, a court must preserve any federal right to a jury trial. Rule 13 Counterclaim and Crossclaims  (a)Compulsory Counterclaim o (1)In General. Must state a counterclaim if it:  Arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim.  Does not require adding another party over whom the court cannot acquire jurisdiction. o (2)Exceptions.  (b)Permissive Counterclaim. Anything that isn’t a compulsory counterclaim is a permissive one.  (g)Crossclaim against a Coparty. Coparties may crossclaim against one another if the claim arises out of the same transaction or occurrence that is the subject matter of the original action or of a counterclaim or if the claim relates to any property that is the subject matter of the original action. The crossclaim may include a claim for indemnity or contribution.  Plant v. Blazer Financial Services o Four tests to determine whether a claim is compulsory or permissive, that is, whether it arises from the same transaction or occurrence.  Are the issues of fact and law raised by the claim and counterclaim largely the same?  Would res judicata bar a subsequent suit on defendant’s claim if that claim could not be brought in the current action?  Do the claim and counterclaim rest on substantially the same evidence?  Is there any logical relation between the claim and counterclaim?

o Court uses the logical relation test and determines the counterclaim is compulsory because it stems from the same common nucleus of operative fact.  There are two consequences when deciding that a counterclaim is compulsory. First, it must be brought at the risk of losing it, that is, if you don’t bring it, you can never bring it again. Second, if it is brought, supplemental jurisdiction (§1367(a)) exists to cover it. So, there is a penalty for omitting a counterclaim that is later held to be compulsory but no penalty for including a counterclaim that is found not to be compulsory. The assumption is that no supplemental jurisdiction exists over permissive counterclaims. o Some courts say there is an exception to this. o Note: §1367(b) only applies to certain claims by the plaintiff. It cannot knock out counterclaims. Rule 20 Permissive Joinder of Parties (May be Joined)  (a)Persons Who May Join or Be Joined o (1)Joinder as Plaintiffs.  (A)A right to relief must be asserted out of the same transaction or occurrence, or series of transactions and occurrences, AND  (B)Any question of law or fact common to all defendants will arise.  Mosley v. General Motors Corp.  Mosley et al sue as joint plaintiffs for discrimination.  District court orders the causes of actions to be severed from one another holding the claims have little to no relationship and would be unduly burdensome for the court.  Reversed. o (A)‘Transaction and occurrence’ is interpreted liberally and depends not so much on immediateness of connection but logical relationship.  Here, plaintiffs allege injury by same general discrimination policy. o (B)Does not require all questions of law and fact raised to be common. No real test to establish what must be the same.  Here, discriminatory character of each claim enough. o (2)Joinder of Defendants by Plaintiffs  (A)A right to relief must be asserted against all defendants and arise out of the same transaction or occurrence, or series of transactions and occurrences, AND  (B)Any question of law or fact common to all defendants will arise. 42 U.S.C. §1367 Supplemental Jurisdiction  (a)Court has supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy. Such supplemental jurisdiction shall include claims that involve joinder or intervention.  (b)If original jurisdiction is based solely on 1332, diversity, the district court shall not have supplemental jurisdiction over claims made by plaintiffs against persons made parties under Rule 14, 19, 20, or 24. Rule 14 Third-Party Practice (Impleader)  (a)When a Defending Party May Bring in a Third Party o (1)Timing of the Summons and Complaint. A defendant, as a third party plaintiff, may serve on another nonparty claiming indemnity or contribution that the third party ‘may be liable to it for all or part of the claim against it.’ This must be done by motion if done more than 10 days after serving its original answer. o (2)Third-Party Defendant’s Claims and Defenses.  (A)The third party defendant must assert any defense under Rule 12.  (B)Must assert any counterclaim against the third party plaintiff under Rule 13(a), Rule 13(b), or a crossclaim against a third-party defendant under Rule 13(g).  (C)May assert against plaintiff any defense that the third party plaintiff has to the plaintiff’s claim.  (D)May assert against plaintiff any claim arising out of the transaction or occurrence that is the subject matter of the plaintiff’s claim against the third-party plaintiff. o (3)Plaintiff’s Claims Against a Third-Party Defendant. Plaintiff may assert against the third-party defendant any claim arising out of the transaction or occurrence that is the subject matter of the claim against the

third-party plaintiff. Third-party defendant must then assert defenses under Rule 12, counterclaims under Rule 13(a) and Rule 13(b) and crossclaims under Rule 13(g). o (5)Third-Party Defendant’s Claim Against a Nonparty. A third-party defendant may proceed under this rule to implead another nonparty.  (b)When a Plaintiff May Bring in a Third Party. If a claim is asserted against a plaintiff, they can implead a third party if a defendant under this rule would be able to.  Rule 14 is not a ‘he did it’ situation. It is rather ‘I am legally responsible but someone else has to pay.’  Rule 14 is subject to the underlying substantive law. The law must provide a cause of action to recover against the third party.  Most common forms of impleader: contribution (usually tort) and indemnity (usually contract.) o States regulate these. Rules vary. Some states don’t even have contribution.  Price v. CTB, Inc. o Price hires Latco to build a chicken house. Latco seeks to implead ITW. ITW resists. o Court says can implead ITW.  Substantive law recognizes it. (Need this before you can use Rule 14.)  Alabama recognizes doctrine of implied contractual indemnity.  Rule 14 says ‘may be liable’ and ‘all or part of the claim against it.’  ‘May be liable’ – Unknown if ITW is liable, but this is ok.  ‘All or part of the claim against it’ – You can only join the claim if it is part of the original claim.  Kroger v. Omaha Public Power District (Pre-Supplemental Jurisdiction) o Kroger sues in federal court in a diversity action Omaha Public Power for the wrongful death of her husband who was electrocuted and died. o Three possible suits: Omaha, Paxton (employer), Owen Equipment (owner of crane.) o Omaha impleads Owen under Rule 14(a). Kroger sues Owen, amended complaint still alleges diversity. o Omaha successfully seeks summary judgment. o At trial, suit is now Kroger suing Owen. Facts now show no diversity. o District court allows suit to continue. o Supreme Court upholds Strawbridge Rule of complete diversity and reverses.  Reasoning: Cannot sue parties, let them implead, and then get parties into federal court that could not be there in the first place. This would undermine complete diversity.  Nonfederal claim did not depend on former claim, could be brought itself.  Nonfederal claim brought to federal court by plaintiff, cannot complain when their choice of forum has reached its limits. Rule 21 Misjoinder and Nonjoinder of Parties Misjoinder of parties is not a ground for dismissing an action. On motion or on its own, the court may at any time, on just terms, add or drop a party. The court may also sever any claim against a party. Joinder is a game of three. First, plaintiff has a choice, subject to Rule 20(a)(1). Second, defendant can challenge joinder, with the result under Rule 21, parties found to be improperly joined will be severed. Third, the judge rules on any challenges to joinder under Rule 20 and has independent power under Rule 42 to consolidate or sever claims. In many federal districts, there are rules that require parties to identify cases that are factually related to any other case pending so they can be consolidated. This is to prevent judge shopping. Rule 19 Compulsory Joinder (Must be joined)  (a)Persons Required to be Joined if Feasible o (1)Required Party. A person who is subject to service of process and whose joinder will not deprive the court of subject-matter jurisdiction must be joined as a party if:  (A)In that person’s absence, the court cannot accord complete relief among existing parties; or  (B)That person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person’s absence may:  (i)As a practical matter impair or impede the person’s ability to protect the interest; or

 (ii)Leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the interest. o (2)Joinder by Court Order. If a person has not been joined as required, the court must order that the person be made a party. A person who refuses to join as a plaintiff may be made either a defendant or, in a proper case, an involuntary plaintiff. o (3)Venue. If a joined party objects to venue and the joinder would make venue improper, the court must dismiss that party.  (b)When Joinder is Not Feasible. If a person who is required to be joined if feasible cannot be joined, the court must determine whether, in equity and good conscience, the action should proceed among the existing parties or should be dismissed. The factors for the court to consider include: o (1)The extent to which a judgment rendered in the person’s absence might prejudice that person or the existing parties; o (2)The extent to which any prejudice could be lessened or avoided by:  (A)Protective provisions in the judgment;  (B)Shaping the relief; or  (C)Other measures. o (3)Whether a judgment rendered in the person’s absence would be adequate; and o (4)Whether the plaintiff would have an adequate remedy if the action were dismissed for nonjoinder.  (c)Pleading the Reasons for Nonjoinder. When asserting a claim for relief, a party must state: o (1)The name, if known, of any person who is required to be joined if feasible but is not joined; and o (2)The reasons for not joining that person.  (d)Exception for Class Actions. This rule is subject to Rule 23.  Rule 19 Application o Should the party be joined if feasible? See Rule 19(a) o May that party be joined if feasible? Not if no personal/subject matter jurisdiction or make venue improper. o If joinder not feasible, should the case be dismissed or proceed without the non-joined party? See Rule 19(b). o If the court orders joinder of a party and the other party does not join them, it will probably be dismissed.  If dismissal is required under Rule 19(b) When Joinder is Not Feasible, the unjoinded party is deemed ‘indispensible.’ This is a conclusion, not a standard.  Compulsory joinder is primarily used as a defense, not a joinder method. It comes into play when a party moves to dismiss the action because of the absence of one or more parties, Rule 12(b)(7).  Temple v. Synthes Corp. o Plaintiff sues Synthes manufacturer on a diversity action in federal court and doctor/hospital in state action. o Synthes does not try to implead per Rule 14 but moves to dismiss for failure to join necessary parties under Rule 19. o Trial court orders plaintiff to join parties. Plaintiff does not. Trial court dismisses. o Supreme Court reverses.  Threshold of Rule 19 has not been satisfied.  Joint tortfeasors are not indispensible parties under Rule 19.  Helzberg’s Diamond Shops v. Valley West Des Moines Shopping Center o Lord’s is a party to be joined if feasible because injunctive relief might prevent Lord’s from operating their store. o But Lord’s is not subject to personal jurisdiction in the Western District of Missouri, so the district court has to decide if Lord’s was an indispensible party. o Lord’s is not indispensible because granting injunctive relief does not prejudice Lord’s because Lord’s still retains all rights under their current lease agreement. o Valley West argues they will be subject to inconsistent judgments. Court says that that is their fault, entered into two contracts. Not persuasive. o Moreover, Lord’s was given the chance to intervene and declined. Rule 19(b) application – lessen or avoid prejudice to absent party.

Rule 24 Intervention (Want to be joined)  (a)Intervention of Right. On timely motion, court must permit anyone to intervene who: o (1)Is given the right to intervene by statute or o (2)Claims an interest in the property or transaction and is so situated that ruling on the subject matter will impair the person’s ability to protect that interest. They must be permitted to intervene unless existing parties can adequately represent that interest.  (b)Permissive Intervention o (1)In general. Court may permit anyone to intervene who:  (A)Has a conditional right to intervene by statute or  (B)Has a claim or defense that shares with the main action a common question of law or fact. o (2)By a Government Officer or Agency. On timely motion, court can permit a federal or state governmental officer or agency to intervene if the party’s claim or defense is based on:  (A)Statute or executive order administered by the officer or agency or  (B)Any regulation, order, requirement or agreement issued or made under the statute or executive order. o (3)Delay or Prejudice. In the court’s discretion, the court must consider whether intervention will unduly delay or prejudice the adjudication of the original party’s rights.  (c)Notice and Pleading Required. A motion to intervene must be served as per Rule 5. The motion must state the grounds for intervention and be accompanied by a pleading that sets out the claim or defense for which intervention is sought.  Natural Resources Defense Council v. United States Nuclear Regulatory Commission o NRDC seeks injunctive relief to prevent USNRC from issuing licenses to companies who want to operate mines in New Mexico without first having them prepare an environmental impact statement. o American Mining Congress and Kerr-McGee Nuclear want to intervene. o Rule 24(a)(1) – No statute, proceed. o Rule 24(a)(2)  ‘Claims interest…subject of action,’ Court says to strictly require the movant to have a direct interest in the outcome is too narrow a construction. If plaintiff wins, there will a direct impact.  ‘Disposing of…protect its interest,’ Impairment is a practical matter and basically, the decision in the case would be binding because of precedent.  ‘Unless…that interest,’ Interveners interests here are not protected because USNRC already has their license. o Motion to intervene granted. Also good to have them intervene because then they’ll all be bound by the result. Discovery Rule 26 Duty to Disclose; General Provisions Governing Discovery  (a)Required Disclosures o (1)Initial Disclosures.  (A)In General. A party must, without request, disclose any individual likely to have discoverable information that the disclosing party may use to support its claims or defenses, copies of all documents the disclosing party has in their possession that may be used to support its claims or defenses, computation of damages claimed by disclosing party, and any insurance agreement.  (B) Proceedings Exempt from Initial Disclosure.  (C)In general, a party must make initial disclosures at or within 14 days after the parties’ Rule 26(f) conference.  (D)For parties served or joined after the Rule 26(f) conference must make initial disclosures within 30 days of being served or joined unless otherwise stipulated by the court.  (E) Basis for Initial Disclosure; Unacceptable Excuses o (2)Expert Testimony.

 (A)In general, a party must disclose to the other parties the identity of any witness it may use at trial to present evidence.  (B)This must be accompanied by a written report, signed by the witness, if the witness is specially employed to get expert testimony. It must contain a complete statement of opinion, data or information considered by the witness in forming that opinion, qualifications, other trials witness testified in, and compensation paid to the witness.  (C)Time to Disclose Expert Testimony. A party must make expert testimony disclosures as a court orders. In the absence of an order, at least 90 days before trial or if evidence is intended to contradict subject matter identified by the other party, within 30 days after that disclosure. o (3)Pre-trial disclosures.  (A)In general, in addition to disclosures in Rule 26(a) and (b), a party must disclose names of all witnesses they expect to present and those it may call if the need arises, designation of witnesses whose testimony will be presented by deposition, and an identification of each document and/or exhibit, specifically identifying items expected to offer and items it may offer.  (B)Time for Pretrial Disclosures. Unless otherwise ordered by the court, disclosures must be made at least 30 days before trial. Within 14 days of that, the other party can bring objections.  (b)Discovery Scope and Limits o (1)Scope in General. Parties, without court approval, can seek discovery ‘regarding any non-privileged matter that is relevant to any party’s claim or defense.’ And if a party shows ‘good cause,’ the court may grant an even broader range of discovery to any ‘matter relevant to the subject matter involved in the action.’ Legal relevance means that the information tends to prove or disprove something the governing substantive law says matters.  Relevance standard tied to rules of evidence. Rules of discovery block inquiries into matters not reasonably calculated to lead to the discovery of admissible evidence.  Relevant information need not be admissible at trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.  Example: Hearsay is not admissible itself but is discoverable if it is reasonably calculated to lead to admissible evidence. o (2)Limitations on Frequency and Extent.  (A)A court can limit the number of depositions and interrogatories.  (B)Specific Limitations on Electronically Stored Information, a party does not have to provide discovery of electronically stored information if it is unduly burdensome or costly. They must prove this if that information is sought.  (C)When required, the court can limit discovery if the discovery sought is unreasonably cumulative or duplicative or can be obtained from source that is more convenient, less burdensome, or less expensive, the party seeking discovery had ample time to get the information, and the burden or expense of discovery outweighs the potential benefit. o Davis v. Precoat Metals  Plaintiff wants to compel Precoat for information about other employee’s discriminatory complaints from a set date to a set date at a specific plant.  Precoat argues too broad and not relevant.  Court says not overbroad: specific time period, specific place.  Court says relevant. The information can be used to prove a hostile work environment and to prove pretext. This goes to the substantive law. o Steffan v. Cheney  Plaintiff was discharged from the naval academy after proclaiming himself homosexual.  During deposition, plaintiff refuses to admit if he engaged in any homosexual acts.  District court dismisses action for failure to comply as a sanction.  Court reverses. No sanction may be upheld if based on error in law.  Plaintiff discharged because of his statement, not his conduct. The information is not relevant.  The information is not relevant because it is based in substantive law. SEC v. Cheney said the agency can only question on the grounds upon which the record discloses that the action was based. o (3)Trial Preparation: Materials (Work Product Doctrine)

 (A)A party cannot discover documents and other things prepared in anticipation of litigation. But, they may be discoverable if they are ordinarily discoverable and the party shows it has substantial need for it and cannot obtain their substantial equivalent by other means.  (B)If the court does order discovery, the mental impressions, conclusions, opinions, and legal theories of a party’s attorney or counsel must be protected.  Hickman v. Taylor  There was a tugboat accident and plaintiff’s attorney wanted to compel discovery of defendant attorney’s interviews with survivors.  Defendant’s attorney said documents were qualified as attorney work product.  Court agrees. Plaintiff able to obtain the information he seeks by interviewing survivors himself and is asking for work product without a showing of necessity.  For policy reasons, we need this to keep up the adversary system.  Note: Information here is qualified, not privileged. A party may never try to get privileged information (like attorney-client) but may get work product if it is deemed necessary. o (4)Trial Preparation: Experts  (A)Expert Who May Testify. A party can depose any expert whose opinions may be presented at trial.  (B)Expert Employed Only for Trial Preparation. A party may not discover facts known or opinions held by an expert specifically retained in anticipation of litigation or for trial who is not expected to be called as a witness unless: (i) provided for in Rule 35(b) or (ii) exceptional circumstances where the information sought cannot be gotten by other means.  Thompson v. The Haskell Co.  Doctor was a non-testifying expert but court allowed discovery of her diagnostic review and personality profile of plaintiff because the opinion was taken 10 days after plaintiff was terminated and no subsequent examination could get similar or as good information.  Chiquita International Ltd. V. M/V Bolero Reefer  The relevant distinction between an expert and a witness is not between fact and opinion but between those witnesses whose information was obtained in the normal course of business and those hired to make an evaluation in anticipation of litigation.  The expert’s opinion is protected because Winer is an expert and thus cannot be deposed.  No exceptional circumstances warrant discovery because International Reefer could have send their own expert and were in a better position to do this anyway.  But Winer’s file may contain discoverable information so they must produce documents that do not reflect his observations and opinions or are otherwise privileged. o (5)Claiming Privilege or Protecting Trial-Preparation Material  (A)Information Withheld. If a party withholds information it claims as privileged, it must expressly make the claim as well as tell the other party what it is without revealing the subject matter by submitting a privilege log. This can be challenged.  Discovery covers any non-privileged matter. Privilege generally protects information from a certain source and has nothing to do with relevance. Privileges are meant to block the source, not the underlying facts. Privilege can be waived by failing to assert it or taking some action inconsistent with claiming privilege.  (c) Protective Orders o (1)The court may for good cause issue an order to protect from annoyance, embarrassment, oppression, or undue burden or expense including:  (A)-(H) Which is a non-exhaustive list.  This requires balancing. How important and how relevant versus how embarrassing and/or how burdensome.  If irrelevant or privileged, you don’t need a protective order. You just object and don’t produce the evidence and then the other party has to try to get it. o Stalnaker v. Kmart Corp.  Plaintiff wants to depose four people at Kmart regarding their romantic/sexual relationship with Graves to prove that Kmart had a hostile working environment because he sexually harassed her.

 Defendant says information is irrelevant and seeks protective order.  Court says information as to sexual harassment by Graves is relevant. Holds plaintiff may pursue discovery about any voluntary or sexual activities limited to the extent that it will show Graves’ part to encourage, solicit, or influence any employee of defendant.  Information discovered is private and cannot be used outside this litigation.  (d)Timing and Sequence of Discovery o (1)A party may not seek discovery until after Rule 26(f) meeting except when exempt under Rule 26(b)(1)(B) or when authorized. o (2)Unless, on motion, the court orders otherwise for convenience or in the interest of justice, methods of discovery can be used in any order and discovery by one party does not require any other party to delay discovery.  (e) Supplementing Disclosures and Responses o (1)A party who has made disclosures must supplement or correct it in a timely manner if they learn something is incomplete or incorrect and the other party has not otherwise been made known or as ordered by the court. o (2)Expert Witness. If an expert’s information must be disclosed under Rule 26(a)(2)(B), that information must be supplemented and must be disclosed by the time pretrial disclosures under Rule 26(a)(3) are due.  (f) Conference of the Parties; Planning for Discovery o (1)Conference Timing. Unless court ordered or exempt under Rule 26(a)(1), parties must confer as soon as practicable, no later than 21 days before scheduling conference is to be held under Rule 16(b). o (2)Conference Content; Parties’ Responsibilities. Parties must submit to the court 14 days after their conference a written discovery plan which includes the basis and nature of claims, initial disclosures under Rule 26(a)(1), issues preserving discovery information, and a discovery plan. o (3)Discovery Plan. A discovery plan must include: timing for initial disclosures under Rule 26(a), dates for discovery completion, issues about electronically stored information, issues regarding privilege or protected material, any changes to discovery limitations, any other orders the court should issue under Rule 26(c) or Rule 16(b) and (c). o (4)Expedited Schedule.  (g)Signing Disclosures and Discovery Requests, Responses, and Objections o (1)Signature Required; Effect of Signature. All disclosures under Rule 26(a)(1) or (a)(3) and all discovery requests, responses, or objections must be signed by an attorney which certifies that to the best of their knowledge:  (A)The information is complete and correct.  (B)With respect to a discovery request, response, or objection, it is:  (i)Consistent with rules and warranted by existing law or by a nonfrivilous argument for extending, modifying, reversing, or creating new law.  (ii)Not for improper purpose like to harass, delay, or increase litigation cost.  (iii)Not unreasonable or unduly burdensome or expensive. o (2)Failure to Sign. If not signed, the other party doesn’t have to do anything with it. Court must strike it unless a signature is promptly supplied. o (3)Sanction for Improper Certification. If a certification violates a rule without justification, the court, on motion or on its own, impose a sanction on the signer, the party on whose behalf the signer was acting, or both. Spoliation  Spoliation refers to the destruction of evidence, material alteration of evidence, the failure to properly preserve evidence in pending or reasonably foreseeable litigation.  A court must find some degree of fault to sanction a party for spoliation. The greater the fault the greater the sanction.  No fault = no spoliation.  Silvestri v. General Motors Corp. o Plaintiff’s claim dismissed as a sanction for failure to preserve the car he crashed.

o Court holds plaintiff had access to vehicle and had his own expert analyze it and failed to notify defendant so they could conduct their own investigation. o Defendant would be severely prejudiced as this is the only piece of evidence they need for their defense. Rule 33 Interrogatories to Parties  (a)In General. o (1)Number. A party may serve no more than 25 written interrogatories including subparts. The court can grant leave to ask more as per Rule 26(b)(2).  Court permission not required for the first 25 questions. o (2)Scope. An interrogatory may relate to any matter that may be inquired into under Rule 26(b).  (b)Answers and Objections o (1)Responding Party. Interrogatories must be answered by the party to whom they are directed or if the party is a corporation, partnership, association, or government agency, by an officer or agent. o (2)Time to Respond. You have 30 days to respond to interrogatories. o (3)Answering Each Interrogatory. Each interrogatory must be answered separately and fully if not objected to. o (4)Objections. The grounds for objections must be clearly stated. Any ground not stated is waived. o (5)Signature. The answering person must sign them and any objections must be signed.  (c)Use.  (d)Option to Produce Business Records. If an answer to an interrogatory can be determined from business records and the burden of getting the answer is basically the same, the responding party may answer by either specifying the records sufficiently enough so they can find the answer or giving them reasonable opportunity to examine them.  Parties answering interrogatories generally have a duty to investigate the question asked unless the party seeking the information is in just as good a position to investigate the matter. Rule 36 Requests for Admissions  The purpose of seeking admissions is not to discover evidence but rather to get a party to admit something to take it out of controversy so the parties can focus on what’s in dispute.  (a)Scope and Procedure o (1)Scope. A party can ask for an admission for the pending action only, the truth of any matter within the scope of Rule 26(b)(1) relating to facts, the application of law to the facts, or opinions about either and the genuineness of any documents. o (2) Form; Copy of a Document o (3)Time to Respond; Effect of Not Responding. If a party does not respond with a written and signed request for admission within 30 days, it is admitted. The court may stipulate a longer or shorter time under Rule 29. o (4)Answer. It not admitted, the answering party must state in detail why they can’t admit or deny, must fairly respond to the substance, answer in good faith, and may admit or deny only a part of the request. Lack of knowledge may be asserted as a reason for failing to admit or deny if they have made reasonable inquiry. o (5)Objections. The grounds for objection must be stated. You can’t object solely on the ground that the request presents a genuine issue for trial. o (6)Motion Regarding the Sufficiency of an Answer or Objection. The requesting party may move to determine the sufficiency of an answer or objection. The court can find the objection unjustified and can order an answer. If the answer does not comply, the court can deem the matter admitted or order another answer.  (b)Effect of an Admission; Withdrawing or Amending It. A matter admitted can be withdrawn or admission on motion. An admission under this rule is for that litigation only and cannot be used in any other proceeding. Rule 34 Producing Documents, Electronically Stored Information, and Tangible Things, or Entering onto Land, for Inspection and Other Purposes  (a)In General. A party may serve a request on any other party within the scope of Rule 26(b) for any designated documents or electronically stored information or to permit entry onto land or property to inspect something.  (b)Procedure

o (1)Contents of the Request. The request must describe with reasonable particularity each item or category to be inspected, the reasonable time, place, and manner for inspection, and may specify the form or forms in which electronically stored information is to be produced. o (2)Responses and Objections. A party must respond to a request within 30 days after being served with the request. They must respond to each item, object to part or all of an item, and follow this rules stipulations for producing electronically stored information.  (E)Producing the Documents or Electronically Stored Information.  (i)A party must produce documents as they are kept in the usual course of business and organize them.  (ii)If no form is specified, a party must produce it in forms that are normally used, and  (iii)A party doesn’t need to produce the same electronically stored piece of information in more than one form. Rule 35 Physical and Mental Examinations Rule 35 allows mental or physical examinations if the condition is in controversy and upon a showing of good cause. For example, if a party wants to use physical or mental condition to prove something, like seeking damages for mental or physical injury or pleading mental incompetency as an affirmative defense, courts are likely to grant an examination. Rule 30 Depositions by Oral Examination  (a)When a Deposition May Be Taken (who may be deposed) o (1)Without Leave. A party can depose any person as provided in Rule (a)(2). This can be compelled by subpoena, Rule 45. o (2)With Leave (when leave of court must be obtained)  (A)A party must obtain leave of court if the parties have not stipulated to the deposition and the deposition would result in more than 10 depositions being taken, the deponent has already been deposed, or the party seeks to take the deposition before the time specified in Rule 26(d) or  (B)If deponent confined in prison. o (6)Notice of Subpoena Directed to an Organization. The party requesting the deposition must describe ‘with reasonable particularity’ the matters for examination. The organization must designate one or more persons in the organization to give deposition testimony on behalf of the organization. The testifying person must testify about information known or reasonably available to the organization.  Note: A person can request the deposition of a particular person within an organization. Rule 30(a)(6) used when you have no particular person in mind.  (c)Examination and Cross-Examination; Record of the Examination; Objections; Written Questions o (2)Objections. During a deposition, there can be objections which are noted on the record but the deposition still proceeds and you still have to answer the question unless the answer is necessary to preserve a privilege or enforce a limitation ordered by the court or to present a motion under Rule 30(d)(3).  (d)Duration, Sanction; Motion to Terminate or Limit. o (1)Duration. A deposition is limited to one day of seven hours. The court must allow additional time as necessary. Rule 37 Failure to Make Disclosures or to Cooperate in Discovery; Sanctions  (a)Motion for an Order Compelling Disclosure or Discovery o (1)In General. A party may move for an order to compel discovery. It must certify that the movant has, in good faith, tried to get the other party to give them the information. o (3)Specific Motions.  (A)To Compel Disclosure.  (B)To Compel a Discovery Response.  (C)Related to a Deposition. o (4)Evasive or Incomplete Disclosure, Answer, or Response. An evasive or incomplete disclosure, answer, or response is treated as a failure. o (5)Payment of Expenses; Protective Orders

 (A)If the Motion is Granted. The party compelled is be responsible for paying the fees associated with the motion unless the movant did not try, in good faith, to get the information first, the nondisclosure was substantially justified, or other circumstances that make the award unjust.  (B)If the Motion is Denied. If the motion is denied, the court can issue a protective order under Rule 26(c) and may require the movant or both to pay attorney’s fees. The court must not order this payment if the motion was substantially justified or the award of expense would be unjust.  (C)If the Motion is Granted in Part and Denied in Part. If the motion is granted in part and denied in part, the court can grant a protective order under Rule 26(c) and apportion the costs.  (b)Failure to Comply with a Court Order o (2)Sanctions in the District Where the Action is Pending.  (A)For Not Obeying a Discovery Order. If a party fails to obey an order to provide or permit discovery the court may sanction you.  Examples of sanctions: (i)-(vii)  (C)Payment of Expenses. Courts must also order the disobedient party to pay reasonable expenses, attorney’s fees, caused by the failure, unless that failure was substantially justified or other circumstances make the award unjust.  (c)Failure to Disclose, to Supplement an Earlier Response, or to Admit. o (1)Failure to Disclose or Supplement. If a party fails to disclose or supplement under Rule 26(a) or (e), the party is not allowed to use that information or witness unless the failure was substantially justified or harmless. The court may also order payment of reasonable expenses caused by the failure, inform the jury of the party’s failure, and may impose other appropriate sanctions set forth in Rule 27(b)(2)(A). o (2)Failure to Admit. If a party fails to admit under Rule 36 and it is later proved the matter true, the party who failed to admit may have to pay reasonable expenses and attorney fees. The court must so order unless the request was objectionable under Rule 36(a), admission was of no substantial importance, the party failing to admit did so on reasonable ground to believe they will prevail, or there was other good reason for failure to admit.  (d)Party’s failure to Attend Its Own Deposition, Serve Answers to Interrogatories, or Respond to a Request for Inspection. o (1)In General.  (A)The court may, on motion, order sanctions if a party fails, after being served with proper notice, to appear for their deposition (Rule 30(b)(6) or Rule 31(a)(4))or a party fails to answer interrogatories under Rule 33 or request for inspection under Rule 34.  (B)Certification. A motion for sanctions must include certification that the movant has in good faith tried to obtain the answer or response without court action. o (2)Unacceptable Excuse for Failing to Act. An objection is not an excuse unless it is under a pending motion for a protective order under Rule 26(c). o (3)Types of Sanctions. Sanctions include those in Rule 37(b)(2)(A)(i)-(vii) and attorney’s fees.  (e)Failure to Provide Electronically Stored Information. A court may not impose sanctions for failing to provide electronically stored information lost as a result the routine, good-faith operation of an electronic information system.  (f)Failure to Participate in Framing a Discovery Plan. If the party fails to participate in good faith under Rule 26(f), the court may require that party to pay reasonable expenses and attorney’s fees caused by the failure. Rule 56 Summary Judgment  (a)By a Claiming Party. A party claiming relief may move for summary judgment on all or part of the claim. The motion may be filed at any time after: o (1)20 days have passed from the commencement of the action or o (2)The opposing party serves a motion for summary judgment.  (b)By a Defending Party. A party against whom relief is sought may move at any time for summary judgment on all or part of a claim.  (c)Serving the Motion; Proceedings. The motion must be served at least 10 days before the day set for the hearing. The judgment sought should be rendered if the pleadings, the discovery and disclosure materials on file, and any

affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. o Genuine issue of material fact – This is what you must prove. o Judgment as a matter of law – Easy to find out. o The law must support you and there can’t be a dispute of fact.  (f)When affidavits are Unavailable. If a party opposing a motion for summary judgment shows it cannot present facts essential to justify its opposition, the court may deny the summary judgment motion, order a continuance, or issue any other just order. o This is usually done when the summary judgment motion is brought before discovery is over and the nonmovant needs more time, saying that the summary judgment motion is premature.  Both parties may move for summary judgment. o If a defendant moves for summary judgment, plaintiff must rebut or they basically lose. This is because the plaintiff bears the burden of proof.  Courts are wary of granting summary judgment motions. o Courts must let a jury decide on issues of credibility. o Courts do not weigh evidence. o Courts draw all justifiable and reasonable inferences in favor of the nonmoving party.  Celotex Corp. v. Catrett o There are two ways that a defendant moving for summary judgment can meet the ‘no genuine issue of fact’ requirement, in cases where the plaintiff bears the burden of proof at trial:  Defendant can negate the existence of an element or  Here, by affirmatively proving that the decedent never worked with Celotex products.  Show that there is an absence of evidence to support the nonmoving party’s claim.  Essential asserting that the plaintiff ‘cannot prove I did it.’ o Plaintiff sues defendant alleging he died from asbestos manufactured by defendant. o Defendant moves for summary judgment on grounds that plaintiff has no proof by which to show defendant is responsible without bringing any contrary evidence. o The court sustains the summary judgment motion. o Celotex standard: The movant in a motion for summary judgment must show the absence of genuine factual issues in the nonmovant’s case but the nonmovant is not required to specifically negate any aspect of the opponent’s claim.  Bias v. Advantage International Inc. o Plaintiff sues defendant for not taking out an insurance policy on decedent. o Defendant moves for summary judgment which the court grants. Plaintiff appeals. o The court holds that the moving party bears the initial responsibility to demonstrate the absence of genuine issue of material fact (Celotex.) The nonmoving party must do more than show that there is some metaphysical doubt as to the material facts but must come forward with specific facts showing there is a genuine issue for trial.  Here, the defendant’s depositions of decedent’s teammates that allege he is a drug user are not countered by written testimonies by decedent’s parents and coach alleging he is not.  Defendant’s evidence that no insurance policy would issue a jumbo insurance policy for a drug user is not countered by evidence that some insurance policies do not ask immediately if you are a drug user.  Celotex and companion cases allow the nonmoving party to respond to a motion for summary judgment in two ways. o Argue that the moving party has not adequately demonstrated a deficiency in the evidence available to the party resisting summary judgment. o Present evidence to counter the movant’s evidence in the hope of demonstrating the existence of an issue of fact. Right to a Jury Trial Juries are only present if:

 (1)At least one party asks for a jury and  (2)It is a case of the sort in which the parties are entitled to a jury. o Seventh Amendment holds ‘right of trial by jury shall be preserved according to the rules of the common law.  Under the historical test, these rights to be preserved are pre-existing rights that historically existed under common law.  Under the traditional common law, courts were separated into courts of law and courts of equity. The right to a jury existed only in a court of law, not in a court of equity.  This holds true today.  Examples of legal claims: Substitutional monetary damages, replevin, action for rent, ejectment.  Examples of equitable claims: Restitutionary monetary damages, specific performance, injunction, reformation, rescission. Applying the Historical Test to New Claims  (1)Compare the statutory claim to comparable/analogous 18th century action. The closer it comes to a legal claim, the more it favors a jury. By contrast, the closer it comes to an equitable claim, the more it favors a bench trial (no jury,’ and  (2)Look to the remedy sought. If the remedy is legal (often monetary damages) then a jury while if the remedy sought is equitable (like specific performance) then a bench trial. o Note: Monetary damages does not make a claim automatically legal. Substitutional monetary damages (value a contract would have yielded) are a common law remedy while restitutionary monetary damages (money defendant received should have gone to plaintiff) are generally equitable.  Chauffeurs, Teamsters, & Helpers, Local No. 391 v. Terry o Employees sue union for not representing them to the fullest potential. o Relief they seek is in the form of back pay for the union’s alleged breach of its duty. o Employees want a jury. Court uses historical test to determine whether legal or equitable claim. o (1)Court says the action encompasses both legal and equitable issues.  Union argues equity analogizing claim to breach of fiduciary duty between a trust and a trustee, equitable claim.  Employees argue it is more like an attorney malpractice action, a legal claim.  Hybrid – combination of a contract claim and breach of fiduciary duty claim. o (2)Court turns to relief sought. Remedy of back pay is legal in nature, substitutional. o Right of jury is preserved. o The dissent wants to eliminate the first prong of the test because courts give more weight to the second prong. Thus, if the second prong holds more weight, it will always be the deciding factor, making the first prong moot.  An example of where the court has taken away the right to a jury trial is patent law. Why? Patent cases are extremely complex and judges are in better positions to make decisions than juries. Moreover, it is imperative to have uniform decisions in the patent field, a goal better served with judges.  Note: The Seventh Amendment preserves the right to a jury trial. There is no ‘right’ to a bench trial. So the amendment only works in one direction, thus, if Congress grants the right to a jury trial, it is preserved. The issue arises when Congress is silent as to whether a jury trial should be preserved for new types of claims. Applying the Historical Test to New Procedures  Combination of legal and equitable claims does not defeat a Seventh Amendment right to a jury.  The jury will decide those claims that are purely legal in nature.  Any factual findings by the jury that overlap with the equitable claims will be binding.  Amoco Oil v. Torcomian o Plaintiff sues defendant for a multitude of damages, both legal and equitable. o In an attempt to defeat a jury trial, plaintiff amends to have only equitable claims. o Defendants bring a compulsory counterclaim seeking a legal remedy.  An equitable main claim cannot preclude a jury trial on a legal counterclaim, at least when that counterclaim is compulsory.

 This is a good rule because otherwise the Seventh Amendment protection would be preempted. o Court concludes a jury can hear the case. Rule 38 Right to a Jury Trial; Demand  (a)Right Preserved. The right to a jury trial is protected by the Seventh Amendment or as provided by federal statute.  (b)Demand. On any issue that a party has a right to a jury trial for, a party may demand one by serving the other parties with a written demand for a jury, which may be in a pleading, no later than 10 days after the last pleading directed to the issue is served (like an answer or amended complaint) and by filing the demand in accordance with Rule 5(d).  (c)Specifying Issues. A party can specify the issues it wants tried by a jury. If it does not specify, it is assumed all issues will be tried by the jury. If a party demands a jury trial for only some issues, the other party has 10 days to serve a demand for a jury trial on more of the issues or all the issues.  (d)Waiver; Withdrawal. A party waives a jury trial unless its demand is properly served and filed. A demand can only be withdrawn with mutual consent. Judges Controlling Juries, Juries Trumping Judges Rule 51 Instructions to the Jury; Objections; Preserving a Claim of Error  (a)Requests. A party can file to every other party written requests for the instruction to give to the jury.  (b)Instructions. The court must inform the parties of the jury charge, give them time to object, and may instruct the jury anytime before they are discharged.  (c)Objections. A party who objects must do so on record and state exactly what the matter and grounds for the objection are. An objection is timely if done so under Rule 51(b)(2) or if a party was not informed of an instruction before that opportunity, they object promptly after learning what the instruction will be.  (d)Assigning Error, Plain Error. A party may assign error for an error actually given if the party properly objected to it or a failure to give an instruction they properly requested unless the court rejected it in a definitive ruling. A court can consider a plain error in the instructions not included under Rule 51(d)(1) if the error affects substantive rights.  The jury instruction teaches the jury about the substantive law they must apply to the case.  Traditionally, judges gave the jury charge at the end of the case. This may be problematic as the jury may realize they have been paying attention to the wrong things. Thus, some courts give jury instructions as the evidence is presented.  The jury instruction has two audiences: the jury, who wants a simple instruction, and the appellate court, who wants a complete and nuanced one so they can really consider it if and when there is an appeal. Courts take a middle ground. Rule 48 Number of Jurors; Verdict A jury must have at least 6 members but not more than 12 members. Unless the parties stipulate otherwise, the verdict must be unanimous. Note: This is the federal rule. Some states permit non-unanimous verdicts. Rule 50 Judgment as a Matter of Law in a Jury Trial; Related Motion for a New Trial; Conditional Ruling  (a)Judgment as a Matter of Law (Pre-Verdict Judgment as a Matter of Law, formerly a directed verdict) o (1)In General. 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 can resolve the issue against the party and grant a motion for judgment as a mater of law. o (2)Motion. A motion for judgment as a matter of law must be made anytime before the case is submitted to the jury.  (b)Renewing the Motion After Trial; Alternative Motion for new Trial (Post-Verdict Judgment as a Matter of Law, formerly judgment notwithstanding the verdict)

o If a judgment as a matter of law is not granted under Rule 50(a), a party may renew their motion no later than 10 days after the judgment or alternatively ask for a new trial. The court may sustain the judgment, order a new trial, or direct the entry of judgment as a matter of law. o The standard is essentially the same for Rule 50(a) and Rule 50(b) but it is harder as a practical matter to prove Rule 50(b) because courts are hesitant to overturn jury verdicts.  (c)Granting the Renewed Motion; Conditional Ruling on a Motion for New Trial o (1)If a court grants a renewed motion for judgment as a matter of law, Rule 50(b), it must also conditionally rule on any motion for a new trial in case the other motion is later vacated or reversed. o (2)Effect of a Conditional Ruling. A conditional ruling for a new trial can either be sustained by the appellate court or reversed.  (d)Time for a Losing Party’s New-Trial Motion. Any motion for a new trial under Rule 59 must be filed no later than 10 days after the entry of the judgment.  (e)Denying the Motion for Judgment as a Matter of Law; Reversal on Appeal. If the court denies the judgment as a matter of law, the prevailing party may assert grounds entitling it to a new trial if the appellate court concludes that the trial court erred in denying the motion. If the appellate court reverses the judgment, it can order a new trial, direct the trial court to determine if a new trial should be granted, or direct the entry of judgment.  General Principles of Judgment as a Matter of Law o Within certain bounds, a court may weigh evidence.  This is unlike summary judgment where weighing evidence is prohibited. o Credibility issues are almost always entrusted to a jury.  Only in extreme cases can a judge enter a judgment as a matter of law on credibility grounds. o Like in summary judgment, a judge should not be ruling as a matter of law where reasonable inferences can be drawn that supports the nonmovant’s claim. o In order to defeat a motion, the party with the burden of proof (usually the plaintiff) will have to show that the evidence could reasonably support the claim by a preponderance of the evidence.  All inferences are drawn in favor of the nonmoving party.  Reid v. San Pedro, Los Angeles, & Salt Railroad (cow killed case) o Where evidence is intended to support one inference, but instead equally supports another inference that renders the defendant liable and another that does not, the plaintiff must fail. o Cow could have gone both through the gate and the fence.  Cannot prove 51+%. o Motion for a judgment as a matter of law can be brought at any time after the opposing party has had an opportunity to be fully heard on the issue.  Pennsylvania Railroad v. Chamberlain o Plaintiff sues defendant for wrongful death of decedent who worked operating a railcar. o Defendant moves for a judgment as a matter of law. o Court grants it because plaintiff failed to meet the burden of proof.  Plaintiff relied on testimony of single individual who does not definitively say he saw the accident happen. He relies on an inference.  Compared to defendant who has multiple testimonies that the railcar collision did not happen.  No conflict of fact. Rule 59 New Trial; Altering or Amending a Judgment  (a)In General o (1)Grounds for New Trial. The court may, on motion, grant a new trial on all or some of the issues after a jury trial for any reason for which a new trial has heretofore been granted in an action at law in federal court or after a nonjury trial, for any reason for which a rehearing has heretofore been granted in a suit in equity in federal court. o (2)Further Action After a Nonjury Trial. After a nonjury trial, the court may, on motion for a new trial, open the judgment and do some more fact finding and direct the entry of a new judgment.  (b)Time to File a Motion for a New Trial. A motion for a new trial must be filed no later than 10 days after the entry of a judgment.

 (c)Time to Serve Affidavits.  (d)New Trial on the Court’s Initiative or for Reasons Not in the Motion. A court may order a new trial no less than 10 days after judgment on its own for any reason that would justify granting one by motion.  (e)Motion to Alter or Amend a Judgment. A motion to alter or amend a judgment must be filed within 10 days of judgment.  Standard: ‘for which a new trial has heretofore been granted in an action at law in federal court.’  A new trial may be granted when a judge concludes that: o (1)There has been a procedural flaw.  Example: Lawyer makes impermissible argument to the jury, judge error, erroneous jury instructions, jury misbehavior. o (2)When the verdict is ‘against the great weight of the evidence.  This is a lower standard than a judgment as a matter of law because the penalty is less severe. o New trials granted for (2) are scrutinized more than (1) because courts are hesitant to overturn jury verdicts opposed to a mistake the court has made.  Lind v. Schenley o Trial court grants a judgment as a matter of law as the verdict is ‘against the great weight of the evidence’ and in the alternative a new trial. o Appellate court reverses both.  Reverses the judgment as a matter of law because the issue was a credibility issue which the court may never rule on.  Reverses the grant of a new trial because it is a credibility issue so the district court is using the wrong standard. They cannot substitute their decision for the jury’s. Claim Preclusion  Claim preclusion (res judicata) operates to bar the (re)litigation of claims.  Distinguish issue preclusion (collateral estoppel) which operates to bar the relitigation of certain issues/facts.  Policy objectives of claim preclusion: efficiency, consistency, finality.  Generally, claim preclusion applies when: o A party raises a claim that was previously litigated or a claim that arises from the same basic events as one previously litigated, that is, should have been litigated. o The first action resulted in a final judgment on the merits.  Claims that were litigated vs. claims that should have been litigated.  Claims that were litigated: two cases that involve the same legal theory, recover against the same party, based on the same underlying facts.  Claims that should have been litigated are claims that are sufficiently related to the underlying facts. o Courts are split as to how to determine this.  Majority Approach  ‘Same transaction or occurrence.’  Same relevant evidence.  Legal theories can be different and still be barred.  Liberal approach, bars more claims.  Minority Approach  Same ‘cause of action.’  Substantial overlap in elements of the claim such that there would necessarily be a high degree of overlap.  Tighter nexus, less claims precluded.  Frier v. City of Vandalia o First suit in state court for replevin for cars. o Second suit in federal court for violation of due process. o Claim precluded.  State court judgment so applying state claim preclusion law.

 State preclusion law followed ‘same transaction or occurrence’ test.  Martino v. McDonald’s System o First suit in federal court on diversity for a contract dispute.  Settled by a consent decree prior to filing an answer. o Second suit anti-trust claim in federal court. o Claim precluded.  Common law compulsory counterclaim.  When the new claim could have been used as a defense in the original action.  ‘Between the same parties’ o Claim preclusion must be between the same parties or those parties that are in privity.  Privity is when two parties are sufficiently connected such that they can be said to share the same legal right; if so, one should be bound by the judgment in a case brought by the other.  ‘Final judgment on the merits’ is a judgment that ends the matter in question, leaving the trial court nothing left to do. o Special problems with judgments on appeal.  In most jurisdictions, a judgment has claim preclusive effect even though it is on appeal.  If won on appeal, the judgment is vacated and the claim preclusive effect no longer applies.  Most courts faced with a claim preclusion question will just wait for the decision on the appeal. o Final judgment on the merits clearly covers claims decided on the merits.  Judgment following trial.  Summary judgment.  Dismissal for lack of jurisdiction is clearly NOT on the merits. o Final judgment on the merits, fuzzy cases.  Judgment based on statute of limitations.  12(b)(6) Failure to state a claim upon which relief can be granted.  Dismissal as a sanction.  Gargallo v. Merrill Lynch o First suit in state court for breach of contract and federal securities fraud.  Case dismissed for discovery violations. o Second suit in federal court for federal securities fraud. o Not claim precluded.  Ohio judgment so Ohio law applies.  Ordinarily, dismissal for discovery abuse is a final judgment on the merits.  BUT Ohio law says no preclusive effect if the court could not issue that judgment. o Court here could not have issued judgment because they were not allowed to hear the case on federal securities fraud in the first place.

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