CIVIL PROCEDURE OUTLINE Subject Matter Jurisdiction-The power of the court is to rule on a case because the nature of the case and the type of relief sought are within he scope of the court's power A courts power to hear a particular dispute Hawkins v. Masters Farms, Inc. P was domiciled in KAN. And the case should not have been should Fed. Court for the lack of diversity jurisdiction there was no diversity. Case should have been in state court instead. Filed Motion to Dismiss under Rule 12(b)(1)- motion to dismiss under lack of jurisdiction over the subject matter The court found that a P who had moved to another state had established a sufficient connection to become a citizen of the new state and therefore could sue someone from his original state in federal court §1332 DIVERSITY OF CITIZENSHIP; AMOUNT IN CONTROVERSY; COSTS If exceeds $75,000 Gives a Federal Court SMJ based on the citizenship of the parties Citizens of different states or citizens of a state and citizens of a foreign state (c)(2) the legal representative of the estate of a decedent shall be deemed to be a citizen only of the same State as the decedent, and the legal representative of an infant or incompetent shall be deemed to be a citizen only of the same State as the infant or incompetent. § 1406 Cure or Waiver of Defects (a) The District Court of a district in which is filed a casy laying venue in the wrong division or shall dismiss Personal Jurisdiction- court’s power to enter a judgment that binds the parties to the case. Venue- the place of trial Service of Process- notifying the D that action has begun Rule 3- A civil action is commenced by filing a complaint with the court (Verbatim) Rule 4-SUMMONS and NOTIFYING D THE LAWYER’S RESPONSIBILTY Bridges v. Diesel Services, Inc. P was fired for disability and not filing with EEOC. Sued for discrimination The Plaintiff's counsel did not display a competent level of legal research Rule 11(b) Representations to Court. By signing a complaint, the attorney certifies that the pleading and complaint is supported by a reasonable factual investigation and competent legal research. Attorney signed the complaint with out following all avenues. Therefore, by signing the claim and not following all the avenues (EEOC Claim) causing unnecessary delay. THE COMPLAINT Bridges deals perfectly with how under rule 11 you must sign pleadings and if you do not sucks to be you because the court can bring action against you such as: Rule 11 (a) Signature Requires the ATTORNEY to sign the pleadings, motion, and other docs to be for records. (b) Representation to the Court
When you present the pleadings, motions, etc. to the court, ATTORNEY is then certifying such documents to the best of their knowledge as being correct.(1) not for any purpose such as harassment, increase cost of litigation, unnecessary delay. (2) claims warranted by existing law that is out there. (3) the facts have evidence to support them. (4) Deny of facts has evidence to support it. (c) Sanctions (1) if 11(b) is violated court will then impose appropriate sanctions. Bell v. Novick Transfer Co. D is company who owned truck, which negligently hit another car, causing injury to infant. D claimed under rule 12(e) that claim was too short. Under rule 8(a)(2) motion was not granted. Rule 12(e) Motion for a more definite statement Statement was really plain and D wanted to bring forth this and try to get the attention away from the fact that there is a dead infant Rule 8(a)(2) a short and plain statement of the claim showing that the pleader is entitled to relief There was not an actual statement which went into depth about showing how and why they were entitled to relief Rule 33 was mentioned in this case stating If a party needs more information for their defense then they need to put such in their interrogratories. You get 25 question towards the other party -Rule 33 (a)(1) Rule 9(c) if there is something you have to do before filing a complaint you must do that BEFORE you file your complaint. RESPONSE- MOTION AND ANSWER Response- the defense of the action Motion-attacks the summons and complaint (also called answer) Preanswer Motions- asks court to take step either to dismiss the case, enter judgment on a verdict and so on THE ANSWER They take no position on the truth or falsity of plaintiff’s allegations AMENDMENTS OF PLEADINGS Rule 15(a) Amendments before trial -Before being served with a repsonive pleading, w/in 20 days after serving the pleading -May amend pleading with the opposing party’s written consent or the court’s leave -Within the time remaining to repsond to the original pleading or within 10 days after service of the amended pleading, whichever is later 15 (a) (1) easily file an amending answer because ther is no responsive pleading to wait on and it was within 20 days of the the response, as long as the court has not given a court date thus far. Rule 15(b) deals with amendments interposed during the course of trial to reflect the introduction of evidence that is into within the scope of the pleadings Rule 15(c) deals with amendments that are interposed after the statute of limitations on the new“ claim have ran. Everything relates back to the original complaint(mistaken identites) Three Ways to Define Justice under Rule 15(a) 1) Prejudice the other party
2) Undue Delay 3) Bad Faith PERMISSIVE JOINDER Rule 20(a) P/D can be joined if they are arising out of the same transactions or occurrences and if any fact of law will arise to all D in the action Bridgeport Music, Inc. v. 11C Music P claims was sampled by 770 different companies Under Rule 20(a) the transactional test requires that to be joined, parties must assert rights or have rights asserted against them that arise from related activities, a transaction or an occurrence or a series thereof. Rule 20(a) is designed to promote judicial economy and trial convenience. CLASS ACTION Rule 23 Prerequisite –one or more members of a class may sue or be sued as representative parties IF: Numerosity-The class is so large that the joinder of all members is impracticable Commonality- there is a common question of law or fact involved Typicality-Claims or defenses of the representative parties are typical of the rest of the class Adequacy-The representative parties will adequately and fairly protect the class’ interests INTERVENTION Rule 24 Only intervene with permission by the court or by given a conditional right Can impair their ability to protect their interest A party may not intervene when complete diversity will not be reached by the intervention DISCOVERY Butler v. Rigby Attorney trying to get list of current patients/doctors/attorneys in trying to find out if Dr. were getting paid by the attorneys to make the claims they did as being the expert witness Court held that a health provider’s list of patients was protected by the doctor-patient privilege and, accordingly, could not be discovered by another party, even though it was relevant to the party’s case. Rule 26(c) protects nonparties to a lawsuit from discovery and allows those nonparties to move for a protective order. Rule 26(b) (1) sets the scope of discovery as any matter not privileged which is relevant to the subject matter of the pending action. Rule 26(b) (2) protects parties against unduly burdensome discovery. Rule 26 (b)(2) Discovery shall be limited if the court determines that: (b) (i) (a) The discovery is sought is unreasonably cumulative or duplicative PRE-TRIAL DISPOSITION SUMMARY JUDGMENT- is a way to resolve a case before trial. SJ gives the court a limited ability to look beyond the language in the pleadings, to the actual facts that each side has marshaled to support its case.
Rule 56(a) Partial Summary Judgment- Being able to get a summary judgment on part of the complaint but not on the entire claim Rule 55 Default Judgment A judgment entered against the ∆ who has failed to plead or otherwise defend against the π’s claim Houchens v. American home Assurance Co. Guy was working in Saudi. Disappears and by VA state law wife can consider him dead after 7 yrs. Insurance will not give her the $ b/c husbands’ death if dead was not an accident. Under Rule 56, a federal court must enter summary judgment if a party fails to show that the evidence, viewed in the light most favorable to that party, is sufficient to establish the existence of an essential element on which that party w bear the burden of proof at trial. A legal presumption cannot trump a Rule 56 motion. TRIAL
Pretrial- an attempt to prepare for trial and also because a party estimate of what is likely to happen at the trial has an important bearing on its pretrial preparation and its approach to settlement. Jury Trial Rule 38 covers the right and demand for a jury trial Rule 39 cover trial by jury or by court, covers who is capable of a jury trial and who does not have t he right to a jury trial STEPS OF TRIAL Court to notify the lawyers of the trial date (lawyers are told with a week or two before the case will be called to court) Selecting a Jury Jurors can be challenged with preemptory challenges Opening Statements Examined Cross-Examined Directed Verdict (Judgment as a matter of law) Rule 50 is different from a summary judgment because is happens during the trial, summary judgment happens before the trial Verdict Within ten days of an adverse verdict can call once again for a judgment as a matter of law Rule 50 Appeal Rule 60 Reliefs from a Judgment or Order To set-aside a verdict Norton v. Snapper Power Equipment P cuts grass for a living. Going up a hill can’t make it rolls backwards. P is thrown from lawnmower and b/c the mower did not have a dead man device cuts off four of his fingers. Sues D, manufacturer, blaming them. A Rule 50 judgment notwithstanding the verdict should only be granted where the evidence so strongly and so favorably points in favor of a moving party that reasonable people could not arrive at a contrary verdict. A court's refusal to grant a motion for a directed verdict precludes the court from granting a judgment notwithstanding the verdict on the same issue. FORMER ADJUDICATION Res Judicata- Some things adjusted
Claim Preclusion- If you sue and are not happy with the judgment you cannot sue again. If P wins and D wants to bring forth some other claim so the judgment can be set aside this is unavailable as well. Issue Preclusion- If the claims are not the same then it is ok. If the issues are the same but totally different claims Rush v. City of Maple Heights Riding in a motorcycle with husband, hits a hole in the road and falls off. Same cause of action but tries to make claim for injury to person and injury to property on two different complaints. Prior adjudications affect future cases by merger, res judicata, and estoppel by judgment. Under modern legal theories claim preclusion is tried to the event and not the legal theories of injury or recovery put forth. Claim Preclusion π should have filed the claims for personal and real property together instead of separate claims b/c they had the same cause of action, the pot hole. APPEALS Appeals cannot be made to correct strategic decisions made by attorneys during trials. Erronous trial court rulings can be challenged on appeal, the right of appeal does not ensure the “correctness” of all trial court rulings 1) When in the course of a given lawsuit an adverse ruling can be appealed 2) How closely An appellate court will scrutinize any alleged error Apex Hosiery Co. v. Leader Only final orders are appealable. This is known as the final judgment rule. This is a rule of judicial economy. Basically this case must have settled b/c it falls under Rule 34 28 U.S.C. § 1291 gives the federal court of appeals jurisdiction “of appeals from all final decisions” of the federal district courts. Also the courts of appeal have no jurisdiction over appeals from judgments or rulings that are not final. Also referred to as Interlocutory Order-An order by way of provisional relief or upon a motion made during the course of the action by way of determining the manner or form in which the case shall be presented for a final trial or hearing and an adjudication on the merits; not in itself an adjudication on the merits. WAYS APPELLATE COURTS ARE TO SCRUTINIZE TRIAL COURTS A) findings of fact should be affirmed unless “clearly erroneous” B) by contrast, rulings of law should be subject to reversal if wrong in any aspect, if there is a genuine reason to believe the error affected the outcome of the lawsuit. Specific Remedy- instead of receiving money from another party at suit, it is asking for something specific(i.e. I want the property not the money b/c I did not get it) court’s can also have specific remedies where they tell someone they cannot do something. Replevin- the attempt to try and attain property which is rightfully yours/ repossessing Injunctions- court orders directed at a party to have them to do or stop doing something Sigma Chemical Co. v. Harris Guy worked for pharmaceutical company and learned secrets signed contract that if he left the company he could not work for a like company for years and could nto share the secrets of the company. The main prerequisite to obtaining injunctive relief is a finding that plaintiff is being threatened by some injury for which he has no adequate legal remedy. Since Harris would infact incur detriment which would involve no income because the injunctive relief asked for by the P would leave him out of work instead of just out of sales there with his new company it was unfair according to the courts
Declaratory Judgment- A judgment which declares the rights and duties, or the status, of the parties but involves no executory or coercive relief. is authorized when there are circumstances showing a necessity for a determination of the dispute to guide and protect the plaintiff from uncertainty and insecurity with regard to the propriety of some future act or conduct, which is properly incident to his alleged rights and which if taken without direction might reasonably jeopardize his interest. Declaratory Relief- Relief attained by petition to the court which then conclusively determines the rights of parties without awarding any damages, restitution, or a coercive decree. States the rights of the parties P. 106 Emanuel 28 U.S.C. §2201 covers declaratory judgments Rule 57 governs the rules of obtaining a declaratory judgment Substitutionary Remedy- A remedy that give the promisee something as an equivalent for the promised performance. The most common example is an award of money for the failure to perform or to deliver goods. Money damages are substitutionary. Compensatory Damages-Money is to be paid for the cost of the injury suffered. The damages recoverable in satisfaction of, or in recompense for, loss or injury sustained, including all damages except nominal damages, punitive or exemplary damages. Damages in the amount sufficient enough to indemnify the injured person for the loss suffered. Liquidated Damages- A sum certain that is stipulated and agreed upon by the parties as to be payable in the event of a breach of contract. The sum agreed to must be a reasonable estimation of the actual damages that may be incurred. Statutory Damages- Damages which are provided by statute. Punitive Damages-Monies awarded in addition to compensatory damages to punish the defendant for willful, wanton, or malicious conduct to deter such conduct by the defendant and others in the future. Also known as Exemplary Damages. State Farm Mutual Automobile Insurance Company v. Campbell Guy gets in accident permanently handicapping one individual and killing another. Insurance company will not pay for bills goes to court, INS. Co. screws over customer and the victims team up and get huge punitive damages, way too excessive. The Due Process Clause of the Fourteenth Amendment prohibits the imposition of grossly excessive or arbitrary punishments on a tortfeasor. This case and Gore v. BMW, and the problem is this case the state tried to punish the company as a whole instead of just this individual state’s insurance company. BMW of North America, Inc. v. Gore Dr. bought a BMW, in shipping it got a scratch on it they repainted it and then he found out. Got outlandish punitive damages. Remember if it SHOCKS THE CONSCIENCE Constructive Trust- to compel a person who has unlawfully obtained property to return it to its rightful owner. Primary purpose it to prevent unjust enrichment. Rescission- destructing or annulling of a contract Quiet Title- a cause of action looking to seek the rights of certain parties over property. Ejectment- usually used in the form of eviction of a tenant. ATTORNEY’S FEES The “American” Rule Unlike over in the UK and other countries each party pays there own attorney’s fees. Insurance Liability insurance policy requires the insurance company to pay not only for the liability but also for the cost of defense.
Fee Spreading Contingent Fees Most common way people who usually could not pay for an attorney pay for an attorney. Successful clients bear the cost of paying for the attorney’s fees of unsuccessful clients. Percentage of recovery- receiving a percentage of the winnings if in fact they win. Ethical Issues-should let client become aware of the fact of other fee options and the advantages and disadvantages of contingent fees. Pro Bono- funded by donations and sometimes grants/ money from the government they are attorneys who work on these cases not to make a profit. Fee Shifting Contractual Fee Shifting- more contracts will claim “breaching party to pay” and they have to pay the fees of the other party who has to go to court due to the other party breaching. Statutory fee-shifting- involved in legislature changing the law and then brings forth a cause of action Evans v. Jeff D. Class action lawsuit involving handicapped children to get a better facility and aid for them. P’s attorney, works for legal aid, gets an offer which is the best they will possibly see. Takes it but P has to waive right to attorney fees. The court quickly dismissed the argument that there was an ethical consideration involved in the payment of the fees: the ethical consideration was for his clients and not for the fees. Ethical rules only require an attorney to zealously represent his client and protect his client's interests. Rule 23 (e) which binds making the settlement what is best for his clients by his ethical standards. Model Rule of Professional Responsibility 1) the lawyer responsibility believes the representation will not be adversely affected 2) the client consents after consultation Buckhannon Board and Care Home, Inc. v. WVA Dpt H&HR P and a group of other health care providers are told they have to close due to poor conditions. They file a claim to try and get a declaratory judgment and injunctive relief by self-preservation. WVA enacts statute and then files motion to dismiss b/c case is now moot. Motion Granted. P’s attorneys try to get $ on the fact that they are the prevailing party. Only enforceable judgments on the merits and court-ordered consent decrees create the "material alteration of the legal relationship of the parties" necessary to permit an award of attorney's fees. Congress, however, has authorized the award of attorney's fees to the "prevailing party" in numerous statutes in addition to those at issue here. Congress employed the term "prevailing party," a legal term of art. A "prevailing party" is "[a] party in whose favor a judgment is rendered, regardless of the amount of damages awarded the court will award attorney's fees to the prevailing party. -- Also termed successful party." Since the case did not go to court and it was considered to be moot, they were not the prevailing party. Rule 68 Offer of Judgment/ making an offer; judgment on an Accepted Offer 1) must be in writing 2) pre-offer/post-offer 3) reasonableness
Provisional Remedies Always specific relief and are usually temporary Preliminary Injunctions- granted during the pending part of the case. IT tries to preserve status quo( a condition that exist prior to the events that changed that condition Must Have: The likelihood to prevail Irreparable injury Balance of the Hardships Public Interest TRO- granted by a court when it is necessary to prevent irreparable harm Can be issued without notifying the other party Irreparable injury part is much more careful Limit on term- it is an emergency order intended to hold status quo until a hearing William Inglis & Sons Baking Co. v. ITT continental Baking Co. P and other parties involved were getting under cut by d claiming they were selling their bread so cheap that it was under cost. Tried to get a preliminary injunction until it went to court so they could actually sell some bread during this time. The grant or denial of a preliminary injunction is subject to reversal only if the lower court bases its decision upon an erroneous legal premise or abused its discretion. 28 USC 1291 allows for interlocutory appeals from orders granting or denying preliminary injunctions. Due Process and Provisional Remedies The problem is the desired effective remedy crashes with due process clause. Fuentes v. Shevin Woman rented an oven and radio and was paying the bill, years later quit paying owing just a couple hundred dollars. D repossess the items after P does not make payment. But under Florida state law they must be offered the chance of due process when repleving property. Procedural due process under replevin statutes require that affected parties must be notified in a timely manner and given an opportunity to be heard before a prejudgment seizure. If the creditor plaintiff violates the debtor-defendant's due process rights by seizing his property in accordance with statutory procedures, there is little or no reason to deny to the latter a cause of action under the federal statute, § 1983, designed to provide judicial redress for just such constitutional violations. PLEADINGS Rule 8 (a) requires only a short and plain statement showing that the P is entitled to relief. Which will show the jurisdiction As well as a demand for the judgment of relief the pleader is seeking Causes of Action are treated as mutually exclusive. Functions of a Pleading Two different types of disputes Those that focus on the law Those that focus on the facts Dilatory Plea-Those pleas which delay the plaintiff's remedy, by questioning, not the cause of action, but the propriety of the suit, or the mode in which the remedy is sought. Any plea which tends to delay a trial of the case on the merits. If it is made too late then it is waived
Peremptory pleas-A plea which sets up the defense that the plaintiff has no right to sue. A plea which denies the plaintiff's cause of action. Demurrer-A legal term whereby one party states that even if the other party's facts or allegations are true, there is still no cause of action. A motion that takes objection or exception to a complaint as a matter of law. Modern Pleadings and motion practice fulfill three functions Eliminates cases that suffer from significant procedural defects Anyone captured under Rule 12 (b) (1,3,4,5,7) Shapes the discovery process that will be the central feature of many cases Rule 12(b)(6) can occasionally eliminate a claim entirely Haddle v. Garrison Suppose to be witness in a Medicaid scandal. At will employee gets fired. Tries to bring suit forth on wrongful termination. Under Georgia state law, an at will employee has no constitutionally protected interest in continued employment. Second go round D files 12(b)(6) claim dismissal for failure to state a claim and since at will employees can be fired at any time he has no case Third Under 42 USC 1985(2) a plaintiff need not suffer an injury to a constitutionally protected property interest to state a claim under that statute. Rule 8 (e)(2) a party may set forth two or more statements of a claim or defense alternately or hypothetically and a party may also state as many separate claims or defenses as he has regardless of the consistency. Ethical Limitations Rule 11 regulates the way lawyers and clients conduct themselves establishing standards or investigation of law and facts. Rule 11- Limits your creativity to 11 (b) (1) No Improper purpose 11(b) (2) Reasonable inquiry 11 (b) (3) Evidentiary support/factual basis Discovery always monetary 28 U.S.C § 2072(b) provides that the rules shall not “abridge, enlarge, or modify any substantive right” Walker v. Norwest Corp. P attorney did not list all of the D’s jurisdiction. When D received the compliant wrote telling P about the mishap and P did not fix it. D motioned for 12(b)(1) and compliant was dismissed. Rule 11 is an extremely technical rule and courts will not enforce its sanction provisions unless all the technical aspects are obeyed by the party wishing to enforce sanctions. Here, there is no evidence related to D meeting the 21-day requirement under the rule. (b) How Presented. Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim or third-party claim, shall be asserted in the responsive pleadin thereto if one is required, except that the following defenses mayat the option of the pleader be made by motion: Christian v. Mattell, Inc.
P makes cheerleader doll. It resembles a Barbie that comes out and P tries to sue D for copyright infringement. P gets © in 1996 and other doll © in 92. P did not do research very well and ∆ had motioned for rule 11 due to P brought forth in oral argument. Rule 11 is to "reduce frivolous claims, defenses or motions and to deter costly meritless maneuvers, . . . [thereby] avoid[ing] delay and unnecessary expense in litigation." Nonetheless, a finding of significant delay or expense is not required under Rule 11. Where, as here, the complaint is the primary focus of Rule 11 proceedings, a district court must conduct a two-prong inquiry to determine (1) whether the complaint is legally or factually "baseless" from an objective perspective, and (2) if the attorney has conducted "a reasonable and competent inquiry" before signing and filing it. Rule 11 sanctions are limited to "paper[s]" signed in violation of the rule. Conduct in depositions, discovery meetings of counsel, oral representations at hearings, and behavior in prior proceedings do not fall within the ambit of Rule 11. Special Claims: Requiring and Forbidding Specificity in Pleading Stradford v. Zurich Insurance Co. D who let ins. Lapse. After the lapse he renewed policy. After renewing he files a claim weeks later, and gets a check. A little while later files another claim for damages to property during that time to dental equipment. Ins. Co. says no way and starts investigating. P takes Ins. Co. to court for not paying. Rule 9(b) requires that fraud claims be pleaded with particularity. A contractual obligation to cooperate in an investigation under an insurance policy is a condition precedent to the obligation of an insurance company to pay on a policy. The primary purpose of Rule 9(b) is to afford the litigant who is accused of fraud notice of the claim and the factual grounds upon which it is based. Under Rule 9(b) you must plead a story of who, what, where, when, and why as well as the prima facie case of fraud to include a false statement of fact, made with the intent to defraud, in fact relied upon reasonably so by D as well as damages. Allocating of Evidence (THIS BELOW WAS WENT BACK OVER ON 10/29/07) The Burden of Pleading One must allege that element of the claim or defense; cannot expect other party to do so. The Burden of Production At trial one must produce evidence that tend to demonstrate the proposition at stake. The Burden of Persuasion Must persuade the trier of fact that one’s version of the facts is more likely than not be true. Gomez v. Toledo P worked for Puerto Rican PD. Testified that other officers were planting evidence etc. Got demoted and transferred. Then gets canned and says it violates his due process rights. In an action under 42 U.S.C. § 1983, the complaint need not allege the defendant's bad faith in order to state a claim for relief. Public officers have a qualified immunity from damages liability under § 1983 if they acted in good faith. The purpose of § 1983 is to provide a damages remedy against an offending party who has deprived a plaintiff of constitutional guarantees and guarantees of federal laws. No allegation of bad faith is required in a complaint that alleges a deprivation in violation of the law. Responding to the Complaint Under Rule 55 if a ∆ fails to respond to a complaint ∆ can have a judgment entered against them. Usually files an Answer
Answer responds to the allegations of the complaint and asserts any additional information or affirmative claim that the ∆ may have against the P EIGHT POSSIBLE REPSONSES TO A COMPLAINT Admit an allegation Deny an allegation Admit part allegation, deny part of an allegation State your client lacks sufficient personal knowledge Give a qualified admission or denial to clarify your response or put it in context Ex: admit she complained but denied the timing Decline to admit or deny a paragraph that is purely hortatory Ex: The so what, saying there is no allegations that can be admitted or denied irrelevant basically. Decline to admit or deny an allegation because it makes a legal assertion, and the law speaks for itself. Ex: So what, give me something to respond to, no factual allegation listed Decline or admit or deny an allegation because it does not contain an allegation or makes an allegation only against a co-defendant Ex: no allegation against D for them to have to respond Demurrer 12(b) (6) Disfavored Defenses Answer Responses a) reasons why the court should not proceed with the action b) assertions that the complaint, even if true, provides no basis for legal relief c) denials d) affirmative defense Rule 8(c) e) requests of clarification and more info. All of the responses except e) may be included in ∆ answer Rule 12 (b) permits certain defenses to be raised by a pre-answer motion Must answer within 20 days unless ∆ waives service of process Rule 4(d) PRE ANSWER 12(b) 1-7 are considered your majority pre-answer 12(b)(1) is the only one you can use at any time. Rule 12(e) motion for a more definite statement. ANSWER Denials Rule 8(b) Defenses; Admissions and Denials 1(a) state a short and plain terms its defenses to each claim Zielinski v. Philadelphia Piers, Inc. P is hit by loader and causes injury. Sues ∆ thinking they own the loader. ∆ knows they are not the owner of the loader but fail to tell the P until after the statute of limitations has run. ∆ Then tells P that the loader was not theirs. A defendant who knowingly makes inaccurate statements may be estopped from denying those statements at the trial. Under Rule 11 there is a requirement of good faith in pleading. Under Rule 8(b), a denial must fairly meet the substance of the averments denied. A party can admit, deny or plead insufficient information to answer parts of the complaint. A general statement of admission
or denial can be made or the statements can address each and every claim in the complaint. An ineffective or erroneous denial may result in admissions by estoppel. Affirmative Defenses Rule 8(c) They are listed on p. 423. and explicitly affirm in initial pleadings. Layman v. Southwestern Bell Telephone Co. P owns land. ∆ went to cut down trees and dig to put underground lines in. P says no way, and P sues ∆ for messing up land. ∆ brings up that they have an “easement” at trial but didn’t bring it up at discovery. A defendant must plead an affirmative defense if that defendant intends to rest his defense on some fact not included in the allegations necessary to support the plaintiff's case. State rules require that certain affirmative defenses must be pled as well as any other matter constituting an affirmative defense or avoidance of the charges in a complaint. A general denial challenges all material allegations in a complaint and D is entitled by making such a denial to prove any fact showing that P's cause of action never had any legal basis. Reply Rule 7(a) requires a reply if the answer contains a counterclaim denominated as such. It permits the court to order a reply on its own motion or on the motion of a party. Amendments Rule 15 governs amendments Two goals: 1) Easy amendments, which allows pleadings to reflect the parties changed view of the case as it develops 2) The notion of “prejudice”, which reflects the idea that at some point the other side has to make decisions about how to present its case. Beeck v. Aquaslide ‘N’ Dive Corp. P is at pool and hurts himself on slide. ∆ and all of the insurance adjusters say it is their slide. All agree slide is the ∆’s. 6 months after statute of limitations, the President of ∆ goes and reports it is a ripoff of their product. Prejudice is usually shown by delay, bad faith by the moving party, or a dilatory motive by the moving party. In Forman, the Supreme Court held that in the absence of bad faith or a dilatory motive, leave to amend is within the discretion of the court. Rule 15(a) states that leave to amend should be freely given when justice so requires. Statute of Limitations Rule 15(c) gives the P some leeway in the respect of SoL, but the flexibility is not limitless. Moore v. Baker P has heart issues. ∆ performs surgery, and it goes bad. P sues for informed consent, ∆ ask for summary judgment and P moves to amend old claim and add negligence, but SoL has run out. The statute of limitations bars amending a complaint unless the amended complaint relates back to the date of the original complaint. Under Rule 15(c) the critical issue is whether the original complaint gave notice to the defendant of the claim now being asserted. Whenever the claim asserted arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, 15(c) allows for relation back and amendment. The key is whether D got notice from the original complaint of the claim that is now being asserted. Bonerb v. Richard J. Caron Foundation
P is at ∆ for rehab. In mandatory activity of b-ball, P hurts himself. Sues ∆ for negligence. Rule 15(a) provides that leave to amend should be freely granted in the absence of undue prejudice, undue delay by the moving party, or bad faith. Even so an amendment to add a time barred claim will not be effective unless it related back. Relation back will occur when the operational facts in the original complaint are sufficient to put the party on notice that the amended claim may be brought. The underlying principle is one that if a party has been given notice of litigation concerning an occurrence that party has been given the protection afforded by the statute of limitations. Rule 15(c) more in depth It defines the line b/t permitted and unpermitted amendments in terms of “the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleadings.” DISCOVERY The scope permits the bringing and defense of claims where all or much of the relevant information lies in the possession of the other side. Possibilties and Limits of Discovery: Relevance and Privilege Rule 26(b)(1) allows the parties, w/o court approval, to seek discovery “regarding any matter, not privileged, that is relevant to the claim or defense of any party.” If the party shows “good cause” the court may grant even broader discovery “of any matter relevant to the subject matter involved in the action” Relevance The info must be relevant to either the claim or the defense or if judicial permission is granted, to the subject matter of the lawsuit. Relevance links discovery to the law of pleading to the law of evidence. Relevance defines the relationship b/t the pieces of information Davis v. Precoat Metals P is suing ∆ for race and national origin discrimination. P in discovery ask for the records of all employees of the Chicago Plant b/t 1998 and 2002 who complained about discovery. ∆ claims it is irrelevant to the claim. Rule 26(b)(1) permits discovery into any matter not privileged that is relevant to the claim or defense of any party. Discoverable information is not defined by what is admissible at trial. Discoverable information is relevant if it appears reasonably calculated to lead to the discovery of admissible evidence. This does not give any plaintiff a carte blanche as a court can limit discovery if it determines that the discovery is unreasonably cumulative or duplicative, obtainable from other sources that are more convenient, less burdensome, or less expensive, or the burden or expense of the proposed discovery outweighs its likely benefit. Rule 26(b)(2). Steffan v. Cheney P, homo, resigns after being told he was going to be discharged. In trying to be reinstated the ∆ ask about homo conduct he partaked in. P pleads the 5th, and he is not reinstated. A sanction under Rule 37 cannot be upheld if its imposition is based on an error of law. Evidence is not relevant if it does not relate to the matter pertinent to the decision of the case. Privilege Under Rule 26(b)(1) anything that is discoverable which is any matter that is not privileged which is relevant. The scope of the attorney-client privilege in corporate contexts forms the center of a case with significant discovery implications.
Upjohn Co. v. U.S. Court held that the corporation’s attorney-client privilege extended beyond the “control group” (Top management). Surveying Discovery Rule 26 lays out the ground rules Requirements for mandatory disclosure 26(a) Provision for further discovery w/o any special showing (but is limited by relevance to claims and defenses Provision for broader discovery (subject matter involved in the action) if a party demonstrates good cause to the court Required Disclosures 26(a)(1) describes the first stage w/in 14 days after the meeting each party must offer the other side the names of witnesses and descriptions of documents “that the disclosing party may use to support its claims and defenses” Parties must also exchange such information w/o having been requested by their opponent Rule 26(f) requires the parties to meet themselves, without a judge, to discuss the case “as soon as practicable and in any event at least 21 days before a scheduling conference is held Rule 26(a)(1) requires the parties at this meeting or within the 14 days after it, to exchange disclosure lists. Depositions Rules 28, 30, 31 ,32 Depositions are like questioning a witness at trail w/o the judge. Usually occur in lawyer’s office and lawyers are present as are the witnesses and court reporter. Without permission from the judge, the depositions can not exceed 7 hours, and the total number of depositions taken by one side P or ∆ may not exceed 10. No person can be deposed a second time without permission from the other side or the court. Examining Things and People Rule 34 permits the inspection of land and objects (b) Requires the producing party to produce the documents as they are kept in usual course of business or shall organize and label them to correspond with the categories in the request. Request for Admission Rule 36 functions best when used to eliminate essentially undisputed issues. Ensuring Compliance Enforcement Mechanisms Rule 26 (g) general provision Rule 37 More specific Under 37 a court may impose punishments ranging from awards of expenses to dismissals of an entire case or the entry of a default judgment. (d) & (g) some sanctions are available on the occurrence of misbehavior (b) other sanctions cannot be sought until after the court orders a party to comply with some discovery rule but when the party refuses to comply with a specific court order
Discovery and Privacy The gain in relevancy offsets the embarrassment, pain, and possible consequences of revealing tangentially relevant information Rule 26(g) forbidding abusive discovery Rule 26(c) permits a party to seek a protective order and gives the judge broad power to prevent abusive discovery Rule 35 places special limits on the use of discovery to compel physical or mental examinations Stalnaker v. Kmart Corp. Ho working for Kmart says she is being sexually harassed by this playa. Ho(P) tries to get depositions from 4 chicken-heads that ∆ had boned to see if he sexually harassed them too. But in the questioning they are trying to find out about voluntary sexual activity Under Rule 26(c) a court has the discretion to issue protective orders upon good cause when justice requires to protect a party from annoyance, embarrassment, oppression, or undue burden or expense, or when the injury reaches to areas that are clearly outside the scope of appropriate discovery. The party seeking the order must make a showing that gives a particular and specific demonstration of facts, as distinguished from stereotyped or conclusory statements. The nonparty witnesses were not involved in the creation of the hostile atmosphere, the sexual harassment claims or in any other way wronged P. Schlagenhauf v. Holder Guy driving greyhound and runs into the back of a stopped 18 wheeler. Passengers sue greyhound, truck company, driver, and contract trailer. Want guy to get examined and judge gives it the ok. Judge is holder. Examinations under Fed. R. Civ P. 35 are not unconstitutional invasions of privacy because they are applied to defendants. A person being examined under Fed. R. Civ. P. 35, need not be an opposing party vis-a-vis the movant and the party requesting the examination must show cause if the party to be examined has not asserted his mental or physical condition either in support of or in defense of a claim. Rule 35 has two requirements 1) the physical and mental condition has to be in “controversy” 2) The party who is seeking such discovery has to show “good cause” Privilege and Trial Preperation Material Hickman v. Taylor (Prior to 26(b)(3)) Five boat members drowned. P represented a boat member and ∆ counsel asked for a copy of interviews which P had taken from survivors. P said no. Gets thrown in jail. The discovery sections of the Federal Rules of Civil Procedure do not require the production of oral and written statements of witnesses or other information obtained by an attorney in preparation for possible litigation after a claim has arisen. Material obtained by counsel in preparation for litigation is the work product of the lawyer, and it is not protected by the attorney-client privilege. This case is a big deal b/c it deals with not having to produce WORK PRODUCT as well. Expert Information
Rule 26(a)(2) requires initial disclosures, information about experts who may testify and about the basis for their testimony, including a requirement that the adversary receive “a written report prepared and signed by the witness containing a complete statement of all opinions to be expressed and reasons therefore Rule 26(b)(4) requires that testifying experts submit to pretrial deposition but erects special barriers around the opinions of nontestifying experts. Thompson v. The Haskell Co. Sued co. for sexual harassment. Days following being fired went and saw a shrink. ∆ wanted to get the shrinks info, about the P, but the shrink was not the expert witness. Rule 26(b)(4)(B) provides that opinions and facts held by a nontestifying expert who had been retained by the opposing party in anticipation of litigation cannot be discovered except as provided under Rule 35 or if there is a showing of exceptional circumstances where it is shown that it is impracticable for the party seeking discover to obtain the same facts or opinions by other means. Chiquita International Ltd. v. M/V Bolero Reefer Bananas were getting sent to Germany. A bunch got left and the rest spoiled on the ship. P sent expert to inspect ship. ∆ wants deposition from expert. Expert not testifying. A nontestifying expert does not lose that status simply because he learned facts rather than simply offered an opinion based on his own investigation. Discovery cannot be had against a non-testifying expert when the party seeking discovery had an opportunity to examine the subject of the expert's opinion. Rule 26(b)(4)(B). Discovery Abuse Rule 26(c) permits any party to seek a protective order. Rule 5(d) forbids parties from filing any discovery materials with the count until they are used in a “proceeding” (including a pretrial motion) Thompson v. Dept. of Housing & Urban Development Blacks suing b/c the housing authority of Baltimore is segregating Before any party may ask a court to settle a discovery dispute it must first show the court evidence that there was a good faith attempt to settle the matter out of court under the auspices of Rule 26(b)(2). Poole v. Textron, Inc. Guy wrecks golf cart, and sues golf cart manufacturer. P wants documents from ∆ and ∆ says it will cost too much. Rule 37 provides that the Court shall award the moving party fees if the discovery is provided by ruling or simply after the motion is filed. Fed. R. Civ. P. 37(a)(4)(A). RESOLUTION WITHOUT TRIAL Rule 55 covers Default Judgments Rule 41 covers involuntary dismissals Rule 41(a) permits parties to take voluntary dismissals without prejudice Rule 23(e) requires judicial approval of settlements when it is a class action Matsushita Elec. Industrial Co. v. Epstein ∆ bought MCA. Shareholders brought two class action suits against ∆. One in Delaware and the other in D.C. district court
A federal court may not withhold full faith and credit from a state court judgment approving a class action settlement simply because the settlement releases claims within the exclusive jurisdiction of federal courts. Floss v. Ryan’s Family Steak Houses, Inc. Two claims put together. Problem is when they start working for ∆ they have to sign this arbitration agreement. Then want to take it to court, and not go through arbitration, b/c the arbitration cost like 800. P need not to establish the unsuitability of EDSI’s arbitral forum in order to litigate their statutory claims in federal court. Lyster v. Ryan’s Family Steak Houses, Inc. P worked for ∆. Signed the same EDSI arbitration agreement as others. Is sexually harassed. Quits and then tries to sue. The party seeking to invalidate an arbitration agreement because of prohibitive arbitration fees bears the burden of proof and the possibility of such party incurring prohibitive costs is too speculative to invalidate an arbitration agreement where the record reveals only that the agreement is silent on the subject of arbitration costs. Ferguson v. Writers Guild of America, West P wrote Beverly Hills Cop II (lame). In credits he does not get full credit. Gets pissed, but being a member of the Writers Guild members due the arbitration. According to Vega it is like flipping a coin. A court may only review mandatory arbitration proceedings if there is a material and prejudicial departure from the procedures specified to be used in the arbitration agreement. Summary Judgment Rule 56 governs the making and granting of summary judgments Rule 56 (c) provides that such motions are to be granted when the record “shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” THE TRILOGY THAT CHANGED AMERICAN SUMMARY JUDGMENT RULINGS Celotex Corp. v. Catrett P suing b/c husband supposedly died from asbestos claiming it to be from products of the ∆. P produced documents, ∆ asked for summary judgment b/c they could prove that the documents were hearsay. A summary judgment must be granted against a party who fails to establish the existence of an element essential to his case if he bears the burden of proof at trial on that element. A party moving for a summary judgment need not supply evidence showing the absence of a genuine dispute about a material fact. A moving party always bears the initial responsibility of informing the district court of the basis for its motion and identifying those portions of the record wherein it contends that are no genuine issues of material fact. A motion for summary judgment may be granted only if, after examining all of the evidence in the light most favorable to the nonmoving party, the Court finds that no genuine issues of material fact exist and that the moving party is entitled to judgment as a matter of law. Basically the moving party moves for SJ, nonmoving party tries to prove but the moving party proves they have no proof. Anderson v. Liberty Lobby, Inc.
∆ published articles saying that P was a neo-nazi organization. P sued for libel. D moved for a summary judgment; P was a public figure and no actual malice could be shown. D moved for summary judgment on the grounds that P could not prove by clear and convincing evidence that D acted with malice. Clear and convincing evidence is the standard of proof for libel suits if the parties are public figures. In ruling on a motion for a summary judgment, the court must use the same standard of proof that will be used at trial. In essence, the evidence must be "such that a reasonable jury could find a verdict for the nonmoving party. Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment 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. The Supreme Court has clarified that this does not mean that any factual dispute will defeat the motion: By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact. MATSUSHITA ELECTRIC INDUS. CO. V. ZENITH RADIO CORP. ∆ is Japanese firm that makes consumer electronic products. P does too. P sues ∆ saying that ∆ is trying to drive all of the American companies who make CEP’s out of America. ∆ filed a motion for a summary judgment b/c the P did not ave a solid claim. The absence of any plausible motive to engage in the conduct charged is highly relevant to whether a "genuine issue for trial" exists within the meaning of Rule 56(e). Lack of motive bears on the range of permissible conclusions that might be drawn from ambiguous evidence: if Ds had no rational economic motive to conspire, and if their conduct is consistent with other, equally plausible explanations, the conduct does not give rise to an inference of conspiracy. The underlying substantive law can limit the range of permissible inferences from ambiguous evidence in the determination of a summary judgment motion. Bias v. Advantage International, Inc. P parents of Len Bias. Agency is suppose to get insurance policy on him. Dies. They didn’t. P wants $ cause they didn’t have insurance policy on Len. Company says ins. co. would not have insured Len b/c he was a cokehead. ∆ moves for summary judgment. In order to withstand a summary judgment motion once the mowing party has made a prima facie showing to support its claims, the non moving party must come forward with specific facts showing there is a genuine issue for trial Fed. R. Civ. P. 56(e). Sanders v. Union Pacific Railroad Co. P suing ∆ b/c he injured himself while working for them. P’s counsel does half ass job and is not ready when they go to pre-trail conference. Clerk tells judge and he dismissed with prejudice with sanctions. P said this was too strict. A failure to contact a court or opposing counsel over the inability to meet the deadlines in a pretrial order justifies a dismissal of the action with prejudice.
A court can dismiss a case with failure to comply with the court of law and go over just sanctions, and go for the jugular. McKey v. Fairbairn Roof leaking and woman mops it up, and bust her ass, and sues landlord b/c he supposedly knew about the leak. She tried to amend saying it was a breach of duty to calling it negligence. Judge was not having it. The trial judge in this case did not abuse his “justifiably large discretion” in refusing to permit appellant to change her theory during the trial. Writ of Mandamus- A proceeding in a higher court seeking an order against a judge in a lower court to compel that judge to perform some particular duty. In re- in the matter of In re Boston’s Children First Judge gives the P the chance for a preliminary injunction or they can wait for more discovery. They choose to wait for more discovery. Then talk about the judge to the newspaper. Judge makes comments in response to the newspaper. 28 U.S.C. § 455(a) which requires any justice, judge, magistrate of the united states to disqualify himself from any proceeding in which his impartiality might reasonable be questioned. Seventh Amendment gives us the right to a jury trial Chauffeurs, Teamsters Helpers, Local No. 391 v. Terry Π sues due to ∆(union) did not try to get them back pay and everything else for their best interest. ∆ states π is not eligible for jury trial π insist otherwise. The Seventh Amendment guarantees a civil party a right to trial by jury in actions at law. To determine whether a particular action will resolve legal rights, we examine both the nature of the issues involved and the remedy sought. Π is trying to obtain monetary damages and not equitable damages therefore should be able to have jury. Amoco Oil Co. Torcomian ∆ bought store and tried to keep π’s name. π wanted no part of it and sued for the money they had made of the name, as well as to have signs removed(specific aka equitable). ∆ counterclaim for money. It has long been settled law that neither joinder of an equitable claim with a legal claim nor joinder of a prayer for equitable relief with a claim for legal relief as to a legal claim can defeat an otherwise valid seventh amendment right to a jury trial. Ejectment is a form of action long regarded as legal. In the courts of the United States where the distinction between actions at law and suits in equity has always been maintained, the action of ejectment is an action at law. RIGHT TO A JURY TRIAL AS A WHOLE For π/∆ to have a right to a jury trial there must common law remedies Anything monetary plus ejectment, habeas corpus, writ of mandamus, conversion Otherwise it is under the court of equity and you are not able to get a trial 28 U.S.C. § 1861 states Litigants are entitle to trial by jury shall have the right to juries selected at random from a fair cross section of the community Thompson v. Altheimer & Gray Π was suing ∆ for racial discrimination b/c she did not get promotion. During voir dire potential juror said she was an employer and was not sure if she would be able to be unbiased and was not stricken from the jury.
When a prospective juror manifests a prior belief that is both material and contestable it is the judge's duty to determine whether the juror is capable of suspending that belief for the duration of the trial. When the record contains no assurances that the belief is "shakable," that the prospective juror can exercise a judgment unclouded by that belief, the verdict cannot stand. Reid v. San Pedro, Los Angeles & Salt Lake Railroad ∆ railroad passes thru the π grazing area for cows. Π’s cow gets hit by a train and the gate was open and cow was closer to the gate, but claims that the cow went thru a hole in the fence that the ∆ should have fixed. A plaintiff bears the burden of presenting evidence that it is more probable than not that the defendant is liable for the damages sustained. Rule 52(a) requires that the court shall find the facts specially and state separately its conclusion of law thereon. A finding of a fact made by a trial judge can be set aside on an appeal if it is “clearly erroneous”, giving the judge’s factual conclusions the same insulation from review as a jury’s. Burden of Production Requires the party to “produce”, to find and present evidence in the first place. Summary Judgments rely on this idea. If the π fails to produce, he loses even tough, as a matter of historical fact, the ∆ did commit the reason for the suit. Controlling juries before the verdict Five procedural devices The law of evidence The power of instructing the jury Directed Verdict JMOL Rule 50 permits a party at the close of te other party’s case to move for a judgment as a matter of law (JMOL) Rule 50(a) “there is not lefally sufficient evidentiary basis for a reasonable jury to find for that party on that issue.” Pennsylvania Railroad v. Chamberlin Π suing ∆ for accident of husband dieing while working for train company. Π had one witness who was not even close to the accident. While the ∆ had several who claim to be right there. Trial court told jury to find for one party. If the evidence is clearly, such that if a verdict were rendered for one of the parties, the other would be entitled to a new trial, it is the duty of the judge to direct the jury to find according to the views of the court. A party has not sustained its burden of proof by a preponderance of the evidence if the facts give equal support to each of two inconsistent inferences. Judgment N.O.V. Rule 51 the judge frames the question by instructing the jury on the law Rule 50(a) also states the grounds for a jnov are identical to those for a preverdict judgment as a matter of law: that there is not legally sufficient evidentiary basis for a reasonable jury to find for the party against whom the motion is made New Trial Rule 59 governs the granting of a new trial
Rule 59(d) a judge can order a new trial on own initiative Rule 59 does not specify the grounds for which a new trial may be ordered, but there is a well-developed body of common law on the issue. Lind v. Schenley industries Sales manager told he will get raise and never gets it so he sues. Π and secretary say these comments about raise were made. Jury awards for π, ∆ moves for JNOV and new trial, and gets both. When a trial judge grants a new trial on the ground that the verdict was against the weight of evidence, the appellate review standard requires close scrutiny in reviewing that decision. The lack of implied or actual authority is not relevant to the issue of apparent authority. It is an abuse of discretion for a trial judge to substitute his own judgment for that of a jury relating to the weight of the evidence. Rule 50(c) creates 4 possible circumstance Deny trial and motion jmol Allow trial and deny jmol Allow both Deny trial and allow jmol