Law School Outline - Outline for Civil Procedure II- Sobelson

OUTLINE FOR CIVIL PROCEDURE II I. Amendment – Rule 15 A. Rule 15(a) i. A party can amend anytime before the responsive pleading is served and the defendant must respond either within the original prescribed time or within 10 days of service of the amendment. ii. Defendant can amend his answer within 20 days of the service of the original answer. iii. Otherwise, the parties must move for leave of court or have written consent of the adverse party. Leave shall be freely given as justice requires (generally liberally given). The ability to amend may be jeopardized by undue delay, bad faith, dilatory motive, failure to cure problems with previous amendments, undue prejudice to the opposing party or futility of amendment. iv. GA: EVERY PARTY HAS THE UNFETTERED RIGHT TO AMEND ANYTIME BEFORE THE COURT ENTERS A PRE-TRIAL ORDER. IF NO PRE-TRIAL ORDER, A PARTY CAN AMEND UP TO THE BEGINNING OF TRIAL. B. Rule 15(b) i. Allows amendment to conform to the evidence presented at trial. ii. Amendment may be allowed when an issue not raised in the original pleadings is tried by consent of the parties. iii. Amendment may be allowed when an issue not raised in the pleadings is objected to, but the proposed amendment will not create unfair prejudice nor the prejudice can be cured by other judicial action. iv. Permits defendant to overcome the general rule that affirmative defenses not pleaded are waived. C. Rule 15(c) i. Whether an amendment will be treated as though it was filed at an earlier date rather than the actual date of filing, i.e. whether the amendment relates back to the date the original pleading was filed. ii. First, must determine if it fits within 15(a) and 15(b). 1. 15(c)(3): Deals with relation back when an amendment adds a new party after the SOL has run. a. A party must receive notice of the suit and but for a mistake concerning the identity of the proper party, the action would have been brought against it. Reasons for amendment  More accurate notice about what is being talked about  Easy paper trail due to res judicata – claim/issue preclusion  Allow Δ to prepare better – documentation may no longer exist; witnesses may have forgotten; formalized way.  Don’t want to rely on discovery process to allow parties to know what is going on. 1 Special Problems with Amendment 1) Amendment that changes whole nature of the case; 2) Amendment after the SOL has run; - can we use the relation back doctrine? 3) Change the entity against whom you are filing. Federal Rules Arising out of Claims, Occurrences and Transactions Occurs at a different or previous time Evidence may be lost Transaction: contracts; Occurrence: torts. Marsh v. Coleman THE FACTS PRESENTED IN THE ORIGINAL COMPLAINT MUST BE ABLE TO SUPPORT THE NEW CLAIM IN ORDER FOR IT TO RELATE BACK UNDER 15(c) AND THE CLAIM MUST HAVE BEEN SOMETHING THAT Δ COULD REASONABLY HAVE EXPECTED TO COME OUT OF THE FACTS INCLUDED IN THE ORIGINAL COMPLAINT. The complaint does not fairly disclose the general factual situation out of which the new claims arise. Defendant had no reason to anticipate from reading the original complaint that it should prepare to defend a case based on acts more than 3 years earlier. Fraud claim is based on conduct substantially different in kind and time from that alleged in the original complaint and a reasonably prudent person would not have expected from reading the original complaint that there would be claims based on fraud (p. 354). Once we have told you about the claim, you can focus the efforts on that claim. Relation back will not apply to those different facts, transactions or occurrences. The fraud referred to facts from 1985 while the facts alleged in the original complaint were from termination 1988. Defendant should be comforted that they would not be sued at the running of the statute of limitations. The claim or defense…arose out of the conduct, transaction (Contracts) or occurrence (torts) set forth or attempted to be set forth in the original pleading (try to determine the laundry list highlighted). a. Statute of Limitations - Three types of SOL 1. File before SOL and time of service is irrelevant. 2. Served before running of SOL period. 3. Hybrid: Have to file before SOL but get some reasonable period of time after to serve. D. Rule 15(d): Supplemental Pleadings i. Set forth events’ occurring after a pleading is filed and update the dispute by bringing such new facts to the court’s attention even if they change the relief sought or add additional parties. ii. Only filed with permission of the court and are as liberal as the amendment of pleadings. 2 II. Veracity in Litigation – RULE 11 A. In General i. Original version required that attorneys have good grounds to support their pleading and courts found violations only when attorney was guilty of bad faith. ii. 1983: Change in Rule 11 – Required sanctions for violations. iii. 1993: Change in Rule 11 - No longer requires imposition of sanctions for violation and no sanctions without notice and opportunity to be heard; 21 day safe-harbor provision allowing that time period to fix the alleged violation of the Rule. iv. Purpose 1. Discourage frivolous claims and defenses 2. Encourage good faith, i.e. reasonable inquiry/preliminary investigation, in claims and defenses 3. Permit advocacy and prevent deception 4. Encourage efficiency 5. Improve public opinion of lawyers and legal system 6. Prevent harassment 7. Protect client by being forthcoming, etc. B. Rule 11(a) i. Requires that documents be signed by an attorney or party if pro se C. Rule 11(b) i. Establishes the standards that documents which are regulated by Rule 11 must meet D. Rule 11(c) i. Regulates who may be sanctioned and how to initiate the process 1. Rule 11(c)(1)(a): Must be made separately from other motions and allege with specificity the violation = Includes the Safe Harbor Clause. 2. Rule 11(c)(1)(B): Motions sua sponte with no specific safe harbor clause 3. Rule 11(c)(2): Limitations on the nature of sanctions – primarily imposed to deter similar violations. E. Rule 11(d) i. Inapplicable to discovery – Rules 26-37 control those circumstances. F. OCGA 9-11-11 i. Every pleading must be signed…and signature constitutes a certificate that he has read the pleading. They need not be verified or accompanied by affidavit. Hadges v. Yonkers Rule 11 case Taylor v. Mayor of Berlin In the context of discovery, counsel is required to undertake a reasonable inquiry before signing certain pleadings and to certify that the disclosure is complete and accurate as of the time it was made. Related case on-line from Sobelson 3 G. 28 USC §1927 i. May have to pay excess costs, expenses and attorney’s fees reasonably incurred due to unreasonable or vexatious proceeding. ii. Circuits split about whether bad faith must be shown in addition to objective unreasonableness. III. Parties – Rule 17 A. Rule 17(a): Real Party in Interest i. Concept behind this: We want to be sure that the party involved is the real party that stands to win or lose. ii. Reasons for this rule 1. Times when the actual ID of the party is inflammatory that jury may rule on bias. 2. Jurisdictional concerns in making sure there is a genuine transfer of interest in moving to federal court 3. Principle of res judicata – This is the main reason. iii. Exemptions to the RPI rule 1. Executors, administrators, guardians, trustees, persons who have Ked on behalf of third-parties, statute authorizes suit in the name of representative party. 2. Executor’s citizenship is considered to be dependent upon that of the represented person. B. Rule 17(b): Capacity C. Rule 17(c): Infants or Incompetent Persons Joinder – Rule 18 (Sobelson’s rule that really isn’t a rule) A. In General i. Still need venue, PJ and SMJ. ii. We must also consider preclusion rules which may force Π to join several assertions in one case. B. Rule 18(a): Joinder of claims i. A party asserting an original claim, counterclaim, cross-claim, or third-party claim, may join as many claims as the party has against an opposing party. ii. Trial court may still exercise discretion to order separate trials on different claims pursuant to Rule 42(b). iii. Permissive not compulsory (unless otherwise compelled through res judicata, collateral estoppel or compulsory counterclaims). C. Rule 18(b): Joinder of remedies i. A plaintiff may sue on PI and add fraudulent entrustment claim as means of frustrating enforcement of judgment even though the PI claim must be won on before the second can be decided. Supplemental Jurisdiction – 28 USC §1367 A. “Pendent” jurisdiction i. United Mine Workers v. Gibbs 1. How do we get state law claim to go along with federal law claim in Federal District Court? Pendent jurisdiction: Allowing one claim to go along with another. If there are two separate claims that arose under the same set of material facts, i.e. COMMON NUCLEUS OF OPERATIVE FACT, the claim may be apply to attach itself under Gibbs. 2. Arguments for this pendent jurisdiction: overlapping documents, federal interest in dealing with the case, some overlap in other areas, same transaction or occurrence IV. V. 4 3. AS LONG AS THE STATE CLAIM SHARES A NUCLEUS OF OPERATIVE FACT WITH THE JURISDICTION-INVOKING CLAIM, ASSERTION OF SUPPLEMENTAL JURISDICTION WOULD APPEAR TO BE CONSTITUTIONAL. B. Supplemental Jurisdiction (Codification of Gibbs – Sort of) i. 28 USC §1367 a. General 1. Gives supplemental jurisdiction to the fullest extent of the constitution. 2. Precludes supplemental jurisdiction in several situations 3. Gives courts the power to refuse supplemental jurisdiction 4. Tolls statute of limitations on supplemental claims that are later dismissed b. The Statute 1. 1367(a): Where district courts have original jurisdiction, they shall have supplemental jurisdiction over all other claims that fall under same case or controversy under Article III of US Constitution (assume it means same thing as common nucleus of operative fact). 2. 1367(b): In action founded on diversity §1332, no supplemental jurisdiction under (a) over claims made by Π’s against persons made parties under: a. Rule 14: Third-Party Pleading b. Rule 19: Party Joinder c. Rule 20: Permissive Joinder of Parties d. Rule 24: Intervenors Or over claims by persons proposed to be joined as Πs under Rule 19 or seeking to intervene under Rule 24, when exercising supplemental jurisdiction is inconsistent with §1332, diversity statute. 3. 1367(c): District courts may decline supplemental jurisdiction under (a) when: a. Claim raises a novel or complex state question (commity) b. Claim substantially predominates over the federal claim c. The federal claims were dismissed (discretion of the court) d. Exceptional circumstances (other compelling reasons for declining jurisdiction) VI. Joinder – Rule 19 A. In General i. Very rare: Court forces you to bring someone. ii. If joinder is not feasible, the court will determine whether it should dismiss the case or continue without that person. iii. Application typically arises when defendant makes motion to dismiss under Rule 12(b)(7) alleging plaintiff failed to join a person whose presence is “indispensable” to the action. iv. Categories of Parties 1. Parties: BIG 2. Necessary Parties: Small category 3. Indispensable Parties: Tiny category B. Rule 19(a): NECESSARY PARTIES i. When feasible, persons should be joined when their absence will either materially reduce the likelihood that the court can 5 ii. C. Rule i. ii. provide justice for those already parties or be detrimental to the non-parties themselves. Protects from duplicative litigation, inconsistent judicial determination, or other practical impairment of legal interest. 19(b): INDISPENSABLE PARTIES Whether the court should proceed without persons who should be joined, but who cannot be joined because their joinder would defeat jurisdiction or venue. Factors in determining 1. Adverse consequences of proceeding without a person 2. Avoiding adverse consequences 3. Adequacy of a judgment 4. Availability of another forum Haas v. Jefferson National Bank An indispensable party may be included in a diversity case and therefore cause it to be incomplete when the discretion of the court sees fit based on factors under Rule 19 including: o To what extent a judgment rendered the person’s absence might be prejudicial to him or those already parties; o The extent to which the shaping of relief might avoid or lessen the prejudice to existing or absent parties; o Whether a judgment rendered in the person’s absence will be adequate; o Whether the plaintiff will have an avenue for relief if the district court’s dismissal for non-joinder is affirmed. Indispensible: Persons who not only have an interest in the controversy, but an interest of such a nature that a final decree cannot be made without either affecting that interest, or leaving the controversy in such a condition that its final termination may be wholly inconsistent with equity and good conscience. Temple v. Synthes Group Three steps of Rule 19 o Whether the absentee is needed for just adjudication under 19(a)(1) or 19(a)(2)? o If 1 is OK, then is the joinder feasible (service possible, venue still good, etc.)? o If 2 is not feasible, whether it should in equity and good conscience proceed without the absentee or dismiss the pending case? The court held that joint tort-feasors are not necessary parties. VII. Permissive Joinder of Parties – Rule 20 A. Rule 20(a) i. All persons may join as plaintiffs those who assert any right to relief jointly, severally or in the alternative arising out of same transaction, occurrence or series of transactions or occurrences and if any question of law or fact common to all these parties will arise in the action. ii. All persons may be joined as a defendant if there is asserted against them jointly, severally, or in the alternative…same as above. 6 1. DO THE Πs ASSERT A RIGHT TO RELIEF JOINTLY, SEVERALLY OR IN THE ALTERNATIVE? (answer is simple – always yes) 2. DO THE CLAIMS ARISE OUT OF THE SAME TRANSACTION OR OCCURRENCE (“STO TEST”)? 3. ARE THERE ANY COMMON QUESTIONS OF LAW OR FACT? i.e. Negligence. iii. “STO” Test: Generally, it is satisfied if there is a substantial logical relationship between the transactions or occurrences at issue. iv. CAUTION: SUPPLEMENTAL JURISDICTION MAY NOT APPLY TO A PARTY JOINED UNDER THIS RULE!!!! B. Rule 20(b) – Separate trials i. The court retains discretion to order separate trial in the interest of justice. 1. Unreasonable embarrassment 2. Unreasonable expense 3. Unreasonable delay 4. “Where injustice would occur” GENERALLY o State Court: doesn’t make a difference which order to apply the joinder rules – 1) Πs joined; 2) Δ joined; 3) claims joined o Federal Court: 1) Start with first plaintiff; 2) Put together all potential defendants and see if they can be there using supplemental jurisdiction if diverse; 3) Focus on claims. Schwartz v. Swan Permissive party joinder by Πs VIII. Rule 42 – Check on this rule: Allows for severance of claims (easier to meet and might be valuable safety valve for Π denied joiner. IX. Counterclaim and Cross-Claim – Rule 13 A. Rule 13(a): Compulsory Counterclaim – “Pleading shall state…” i. Those claims arising out of the same transaction or occurrence that gave rise to the Π’s complaint- those that are so closely related have to be brought or lost for later purposes ii. Requirements 1. must exist at the time of pleading (time requirement) 2. arising out of same transaction or occurrence 3. does not require presence of third-parties over whom the court cannot acquire jurisdiction (can’t require him to bring suit) 4. claim is not subject of another pending action 5. quasi-in-rem exception iii. If all requirements are not met, it is permissive counterclaim iv. Reasons 1. Efficiency 2. Avoid inconsistency 3. Final resolution v. To be asserted in answer or reply to previously asserted counterclaim 7 B. Rule 13(b): Permissive Counterclaims – “Pleading may state…” i. Not arising out of same transaction or occurrence so it therefore can’t be held under supplemental jurisdiction. ii. To be asserted in answers or reply to previously asserted counterclaim. C. Rule 13(g): Cross-Claim i. A pleading may state as a cross-claim any claim arising out of transaction or occurrence against someone on the same side of the litigation, i.e. A party may assert an offensive claim against a co-party if it arises out of same transaction or occurrence as the underlying action. ii. Opens the door for supplemental jurisdiction because of same transaction or occurrence iii. No such thing as compulsory cross-claim, all are permissive iv. To be asserted in responsive pleading Dindo v. Whitney Not every jurisdiction has compulsory counterclaim rule Not everyone will define same occurrence or transaction the same Purpose of compulsory counterclaims: to prevent multiplicity of actions; achieve resolution in single lawsuit of all disputes arising out of a common matter. Carteret v. Jackson Some courts treat judgments by consent (settlements) as exceptions to compulsory counterclaim rule. In this case, although there had been no real litigation, the court denied suit because of compulsory counterclaim. If in default, there is no recourse of compulsory counterclaim if it should have been filed with the non-filed pleading. X. Impleader (Third-Party Practice) – Rule 14 A. In General i. Overriding Π’s party structure(includes compulsory joinder and intervention as tools) ii. Usually asserted when the defendant is seeking indemnification or contribution. iii. The rule provides a procedural method for asserting claims recognized by the governing substantive law. iv. Impleader claim, downsloping 14(a) claim invokes supplemental jurisdiction. v. Upsloping 14(a) claims raise different concerns. B. Rule 14(a): When defendant can bring in third-party i. IMPLEADER – Optional, only persons not already parties ii. Requirements: requires service of third-party complaint, “at any time” which means only in the 10 day period following that party’s service of answer to the claim and then only with filing motion for leave. (Service is effective to get personal jurisdiction according to 4(k)(1)(B), the 100 mile bulge rule. iii. Must relate to claims against the 3rd party plaintiff and depend on the outcome to some degree of those. iv. 3rd Party Δs can file counterclaims, cross-claims, claims against original plaintiff that relate to the cause of action and can assert any defenses. 8 v. Π may sue the third-party defendant or may reserve that for later only based on same transaction or occurrence. C. Rule 14(b): When plaintiff can bring in third-party i. If plaintiff is subject of counterclaim, he can join third parties who may be liable for part or that entire claim the same way as 14(a) for defendants. Markvicka v. Brodhead-Garrett Contribution: equalizes the amount each has to pay on the amount each is proportionately liable. Indemnity: shift the entire burden of the judgment to another Owen v. Kroger A Π may not assert a claim against a third-party defendant in a diversity case when there is no independent basis for federal jurisdiction over that claim because the legislative intent of complete diversity under §1332 is clear and this would defeat the legislative intent despite convenience or efficiency benefits. XI. Intervention – Rule 24 A. In general i. The circumstances in which an absentee can attempt to join the pending case permitting an absentee to override the party structure the plaintiff chose for the suit. ii. To be asserted through methods of Rule 5 B. Rule 24(a)(2): Intervention of Right i. Statutory right under 24(a)(1) ii. Allows one to enter the case if he considered that his interest will be affected by the judgment in that case iii. Elements that must be established 1. An interest in the subject matter of the pending litigation 2. A substantial risk that the litigation will impact the interest 3. Existing parties do not adequately protect the interest iv. Timing 1. Factors a. Length of delay in seeking intervention b. Prejudicial impact of such delay on existing parties c. Prejudice to intervenor if intervention is denied d. Other fairness factors 2. Rejection for lack of timeliness is rarely disturbed on appeal 3. Supplemental jurisdiction is available as intervenor defendant but generally not to intervenor plaintiff. Generally, supplemental jurisdiction is available for intervenors of right but not permissive. C. Rule 24(b)(2): Permissive intervention i. Statutory right under 24(b)(1) ii. When an applicant’s claim or defense and the main action have a question of law or fact in common. iii. FACTORS CONSIDERED BY COURT 1. Whether the intervention will unduly delay 2. Whether the intervention will prejudice the adjudication of the rights of the original parties 9 Atlantis v. US Intervenor case XII. Interpleader – Rule 22 or 28 USC §2361 A. Rule Interpleader i. Rule 22(1) – Defendants are the very people threatening to sue him (owing the same thing to 2 people) 1. Persons having claim against Π may be joined as Δs. 2. They are required to interplead 3. When their claims are such that Π is or may be exposed to multiple or double liability. 4. A Δ may obtain such interpleader by way of cross-claim or counterclaim. 5. Once joined, the claimants compete with one another to establish the validity and priority of their claims against the interpleader plaintiff. 6. (Allows a stakeholder to join inconsistent, multiple parties to determine rights in the asset, “stake”, in a single proceeding.) 7. Payment to the court happens in many cases but is not required (Rule 67 sometimed cited here). ii. Rule 22(2) – The remedy herein provided is in addition to and in no way supercedes or limits the remedy provided by §1335, 1397 or 2361. B. Statutory Interpleader i. Allows the stakeholder to join multiple mutually inconsistent claims of various parties and thereby determine rights in the asset (stake) in a single proceeding. ii. 28 USC §1335: Elements of Statutory Interpleader Action 1. Defendants may employ the interpleader statute parallel to Rule 22 although not clearly enumerated. 2. SMJ: Stake is more than $500 and if only one of the claimants is diverse from any other claimant (not including the stakeholder). 3. Payment into court is required, but a bond may be issued instead. iii. 28 USC §1397: Establishes the special venue provisions governing statutory interpleader 1. Any judicial district where one of the claimants resides. 2. Rule 22 interpleader follows 28 USC §1391. iv. 28 USC §2361: Establishes the broad PJ of a court hearing an interpleader action and authorizes court to enjoin other actions that may interfere with the interpleader. 1. Nationwide personal jurisdiction and service of process. 2. Rule 22 interpleader follows the PJ and service of process learned prior 3. The injunction power is also not found in Rule 22 interpleader. C. When i. ii. iii. Rule instead of Statutory? Stakeholder is also a claimant Don’t have to deposit money under Rule Where there is no diversity among claimants. 10 D. Classic Interpleader i. The stakeholder withdraws and the lawsuit becomes amongst the claimants. Pan American Fire v. Revere Insurer is not allowed to plead under Rule 22 because he is not exposed to double or multiple liability, BUT “may be exposed to” is key and an insurer who faces claims in excess of policy limits is exposed within intent of Rule 22. Interpleader exists when there are several tort claimants who have obtained judgments which aggregate more than amount of policy. Interpleader is available to an insurer whose policy is insufficient to satisfy K claims though they have not been reduced to judgment. State Farm v. Tashire The claims have to exceed the liability for insurers. XIII. Discovery (Rule 26)- SCOPE A. In General i. Three Purposes of Discovery Rules 1. Preservation of evidence 2. Mechanisms for narrowing the issues in dispute between the parties 3. Acquisition by parties of greater information about their own and the other side’s case ii. Information that discovery permits access 1. Evidence that the other side is going to use 2. Eliminates surprise 3. Quicker and fairer settlements of disputes 4. Discourage perjury and manipulation of evidence iii. Acquire case strengthening information 1. Fairness, etc. B. Required Initial Disclosures – Rule 26(a)(1) i. Requires each party to disclose certain information without any specific request by another party. ii. Includes identity of witnesses, description of documents by category and location, a computation of each category of damages, and insurance information. iii. Must make within 14 days after discovery meeting (Rule 26(f)) unless different time is set by the court. iv. Don’t have to disclose information and documents used only for impeachment v. Must be made upon information reasonably available at that point C. Disclosure of Expert Testimony – Rule 26(a)(2) i. Requires that a party disclose the identity of its expert witnesses and produce an expert report for each witness ii. Must be made, in absence of other agreement, 90 days before trial. Rebuttal witnesses only need to be 30 days before trial. iii. Persons who “MAY” testify iv. Experts employed by a party: Specifically employed to provide expert testimony or an employee whose duties regularly involve giving expert testimony v. Treating physicians: Not required 11 vi. Rule 26(a)(2)(B): Witnesses who are retained or specially employed or whose duties as an employee of the party regularly involve giving expert testimony disclosure must be accompanied by a written report prepared and signed by the witness (at least 90 days before trial). D. Pretrial Disclosures – Rule 26(a)(3) i. Party must disclose the witnesses that may testify at trial, the deposition testimony that may be offered at trial and the exhibits that may be offered at trial. E. Discovery Scope and Limits – Rule 26(b)(1) i. Any matter that is relevant to the claim or defense of any party in the pending action and is not privileged 1. Has to be relevant to claim and defense (narrower than subject matter) a. Any matter that bears on, or that reasonably could lead to other matters that could bear on, any issue that is or may be in the case b. Relevant inadmissible evidence is discoverable if it is reasonably calculated to lead to the discovery of admissible evidence. 2. Never privileged information a. Attorney-client b. Doctor-Patient c. Fifth Amendment d. Priest-Penitent ii. Limitations 1. Those things in Rule 26(b)(2) that are too burdensome and not worth the time (must prove though if you claim it). 2. Protective order Rule 26(c) 3. Work-Product – Rule 26(b)(3) a. Party must prove a substantial enough need to get over that protection, i.e. must prove extraordinary need for it. (Scene is different, person is dead) b. Mental Impressions (Holmgren) c. Statements – written or recorded. iii. Rule 26(b)(4)(A): The deposition of the expert shall not be conducted until after report is provided. iv. Rule 26(b)(4)(B): Party may discover facts known or opinions held by an expert who has been retained or specifically employed by another party in anticipation of trial who is not expected to be called as witness at trial only as provided by Rule 35(b) or upon showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means 1. Exceptional circumstances: We can get this (Ager) only under exceptional circumstances. Hickman v. Taylor Work product is anything intended for the eyes of the attorney and client only, that which is under “qualified immunity” (see what falls within definition of work product), anything in preparation for trial, ideas, written down or copied statement. There is a public policy fear of privacy/access (lawyer as a witness at trial). 12 - All relevant and non-privileged materials prepared by an attorney with an eye toward litigation are free from discovery unless the party seeking discovery can show: o A substantial need for the materials (impeachment or corroboration purposes); o Inability to obtain equivalent material by other means. Holmgren v. SF Mutual A party seeking opinion work product must make a showing beyond the substantial need/undue hardship test required under Rule 26(b)(3) for non-opinion work product. Where the strategy, mental impressions and opinion of the insurer’s agents concerning the handling of the claim are directly at issue, there may well be need for access to that information despite it being work product. Ager v. Jane C. Stormont Hospital Expert information o Was the expert informally consulted in anticipation of litigation but not retained or specifically employed? o If no, but not expected to testify at trial, do exceptional circumstances exist justifying disclosure of expert’s identity, opinions or other collateral information? Rule 26(a)(1) F. Duty to Supplement Responses – Rule 26(e) i. Rule 26(e)(2): A party is under the duty to supplement rogs, RFPD, request for admissions. NOT Depositions. Where in some material respect the information disclosed is incomplete or incorrect. ii. Arguments revolve around material iii. In GA, Rule 9-11-26(e). NOTE: THINK IN TERMS OF SCOPE FIRST AND THEN THE TOOL THAT WILL GET YOU THE ITEM NOTE: Court will generally exclude trade secrets. NOTE: Court will allow insurance agreements despite irrelevance. NOTE: Experts are anyone who can testify within their knowledge about scientific, technical or other specialized knowledge. XIV. Discovery – Depositions (Rule 30 and Rule 31) A. Generally i. Witness placed under oath and responds to questions B. Rule 30 – Depositions upon oral examination i. Only 10 depositions per side/One day of 7 hours per deposition; Can be modified through stipulation or court order. ii. Rule 30(b)(1): Give reasonable notice, state name and place. iii. Non-parties under Rule 45: Subpoena Duces Tecum iv. Rule 30(e)(5): Notice to party for production of documents attached to original notice of deposition. C. Rule 31 – Depositions upon written questions i. Variation of traditional oral depositions/Lists of questions to the parties that will be asked a witness by a court officer; ii. The lawyer need not attend the deposition, but the problem is that the witness will already be prepared for those questions. 13 XV. Discovery – Interrogatories (Rule 33) A. Generally i. Any party can send another party written questions that require a written response under oath. ii. They are not intended for ascertaining the testimony or credibility of a particular witness. iii. They are useful for names, dates and list – providing a way of identifying people with information about whom to depose. iv. Cheap and easy to put together but attorney answers questions. v. Presumptive limit of 25 per party, but can be modified by stipulation or court order – Not filed with court unless there is some sort of problem B. Rule 33 i. Must be read in conjunction with Rule 26 about scope of discovery rules. ii. Must respond within 30 days. iii. Objections under Rule 33(b) 1. Overly broad, unduly vague and ambiguous a. Probably not justification for refusing to answer, but the respondent may raise objection and then expressly limit the scope of the response. 2. Burdensome and oppressive a. Within the court’s discretion about whether it would be too costly either monetarily or time wise. 3. Privileged information a. Some fiduciary relationship – The response may waive the privilege so be careful. 4. Attorney work product a. Rule 26(b)(3): Party must show he is unable to obtain the equivalent information through other means without undue hardship. 5. Non-Discoverable expert information a. Rule 26(b)(4)(B): No discovery with respect to experts not intended to be called as witnesses, absent exceptional circumstances 6. Not calculated to lead to the discovery of admissible evidence a. Rule 26: The requested information need not be admissible, only relevant. iv. Rule 33(d)- Option to produce business records – Instead of going through them, you can send the documents as long as it is no greater a burden on the person trying to get it than the person sending. 1. Burden of finding the answer is no greater to either party. 2. Objections have to be signed by attorney not party. Roesburg v. You must question evidence Johns-Manville show specifically how each rog is not relevant or how each is overly broad, etc. by submitting affidavits or offering revealing the nature of the burden 14 XVI. Discovery – Production of Documents and Things (Rule 34) A. Generally i. Permits a party to require another party to produce for inspection, copying or testing all relevant documents or things ii. Used to compel production of documents iii. Limited to parties B. Rule 34(a) – Scope i. Any relevant, non-privileged document unless it was prepared in anticipation of litigation, pertains to expert witnesses, or would be unreasonably burdensome to produce. ii. Refers to the idea that the thing asked to be produced has to be in the custody of the person from which it was requested. iii. Same objections as under Rule 33(b) C. Rule 34(b) – Procedure i. Must respond in writing within 30 days ii. Limited to parties in the action, but need not be adverse party (subpoena duces tecum under Rule 45) XVII. Discovery – Medical Examination (Rule 35) A. Generally i. When the health or condition of a party is in controversy, the court may order the party to submit to a physical or mental examination by a suitably licensed or certified examiner. ii. Requires a court order which is only appropriate with good cause and the condition is actually in controversy. iii. Rule 35(a): Limits the times we can use it iv. Rule 35(b): The examined party is entitled to the report. XVIII. Discovery – Request for admissions (Rule 36) A. Generally i. Used to determine what issues are and what are not in dispute ii. Allow one party to ask the other side to concede certain things iii. Stipulation-like – Limited to use against parties and admissions that bind a party in this case only. iv. Send it to the other side – If they want to admit it they respond or not respond, but if they don’t they send objection. Discovery – Sanctions (Rule 37) A. Motion to Compel first B. Sanctions last Summary Judgment – Rule 56 A. Trials Generally i. Jury Trial 1. Only 5-10% of all cases filed go to jury trial 2. Of all jury trials, 80% are in US 3. Judges agree with juries about 70-90% of the time 4. Few common people in juries around the rest of the world ii. Constitutional right to jury 1. 7th Amendment: Only literally applies to federal government. 2. State constitutions have their own rights to jury trial. 3. GA: Right is broader than federal court (GA IS ONLY STATE TO ALLOW LAWYER JURY TRIAL FOR MISCONDUCT). XIX. XX. 15 iii. Federal Jury Trial 1. 6 person jury (constitution does not require 12) 2. Constitution is silent about jury having to be unanimous. 3. Jury selection is silent in constitution. B. Judge or Jury? i. Form 5 for trial courts ii. Reasons for SJ 1. Economic efficiency 2. Judges role to determine law iii. Five Vehicles to Keep Case from Jury 1. Motion to Dismiss under 12(b)(6): Success is unlikely 2. Motion for judgment on the pleadings under Rule 12(c): After the pleadings, any party can use this but usually plaintiff. 3. Motion for Summary Judgment – Which may include the motion, brief, depositions, affidavits and responses 4. Rule 50 – Motion for JMOL (Directed verdict) 5. Rule 50 – Motion for JMOL (JNOV) C. Summary Judgment – Rule 56 i. Adjudication without trial or jury ii. Rule 56: Authorizes court to enter judgment whenever it appears 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. 1. Filed before trial 2. Rule 56(d): Permits the court to enter partial summary judgment disposing of some, but not all issues of the case. 3. Appropriate when: a. The parties may agree on the facts and the dispute entirely about the law (whether liability attaches under the particular circumstances) b. The parties may disagree on the facts but there is no genuine dispute (one side has so little evidence that no reasonable jury could find for that side) 4. Rule 56(e): Circumstantial evidence must be admissible to be considered. 5. Time: No earlier than 20 days after commencement of suit or immediately after SJ motion is filed against them. 6. Genuine Issue: The evidence before the court is of such a nature that a reasonable jury could return a verdict in favor of non-moving party. “Mere scintilla of evidence is not enough to defeat MSJ”. 7. Material Fact: Affect the outcome of the case 8. Appropriate as a matter of law: Non-moving party has failed to make an adequate showing on an essential element of her case as to which she has the burden of proof. 9. Direct vs. Circumstantial Evidence: One has just as much weight as the other. a. Direct: Someone directly says what happens b. Circumstantial: Another inference must be made to get to conclusion desired. 10. MSJ may be used to find out what the other side has. 16 Knapp v. Holiday Inn SJ incorrect for the following reasons: o Doubt as to witness credibility o Reports o Opportunity to cross-examine o Moving party held to stricter standard than non-moving. o Evidence taken in light most favorable to non-moving party. Questioning the credibility of the witnesses alone is enough to defeat summary judgment. Anderson v. Liberty Lobby Reconciling 2 ideas o The “Mantra” of SJ: Judge is not to determine who is telling the truth, but just that there is a genuine issue between them (i.e. possible that plaintiff or defendant could win). o There has to be a universal agreement that no reasonable jury could decide in the non-movant’s favor on that evidence alone or that the evidence is so strong that they would have to find in movant’s favor Burden of Production vs. Burden of Persuasion o Production: Whether or not as a matter of law the party has produced something to suggest their side. o Persuasion: Whether or not you have persuaded the jury of your side. In MSJ, only burden of production is discussed, but in JMOL/MDV the burden of persuasion is discussed. Take the standard of proof into account when making decision about summary judgment – The judge must decide whether a reasonable jury could rule only one way. Celotex v. Catrett An element of a case can never be proven by merely negativing the evidence presented by the defendant. The non-moving party has to come forward with rebuttable affidavits (coming-forward) and support (support). The burden on the moving party may be discharged by showing that there is an absence of evidence to support the non-moving party’s case, i.e. there needs to be some suggestion that there would be real testimony. The movant need only show that there is an absence of evidence to support the non-moving party’s case. The standard governing the burden of production for summary judgment mirrors the standard for directed verdict under Rule 50(a), in which D would not be required to support its motion with affidavits or other similar materials negating P’s claim. The burden is on P and not D to go forward with evidence as to P’s claim. DISSENT: There must be an affirmative showing of the absence of evidence in the record. XXI. Motion for Directed Verdict and Motion for JMOL/JNOV (Rule 50) A. Generally i. The court may still determine that there is insufficient evidence to support a jury verdict. ii. Declines to submit the case to the jury and enter judgment (Directed verdict) 17 iii. Verdict not supported by the evidence and enter judgment (Judgment not withstanding the verdict). iv. Standard: Whether a fair minded jury could return a verdict for the plaintiff on the evidence presented. B. Rule 50(a)- JMOL/Directed verdict i. The court takes the case away from the jury by entering a judgment if there is not sufficient evidence to raise genuine factual controversy. ii. Time: Orally or in writing, may be made at any time before submission of the case to the jury (typically at close of Π’s case, at close of record or both). IT MUST BE MADE OR RENEWED AT THE CLOSE OF THE RECORD IN ORDER TO PRESERVE FUTURE RIGHTS FOR APPEAL. C. Rule 50(b) – JNOV/ Motion for judgment after trial. i. The court can enter judgment inconsistent with the jury’s verdict if the verdict was not supported by the evidence. THE PARTY HAD TO FILE MOTION FOR A JUDGMENT AS A MATTER OF LAW AT THE CLOSE OF THE RECORD. 1. Unless a court indicates renewal is not necessary to preserve the challenge; 2. Unless not allowing the claim would result in a manifest miscarriage of justice. ii. Time: Not later than 10 days after entry of the judgment Lavender v. Kurn No notes… JMOL case XXII. Claim Preclusion (Res Judicata) A. Generally i. A.K.A.: Merger & Bar – If you have a claim and you win it, you now have judgment in your favor. The claim is merged into judgment. If you bring claim and lose it, you are barred from bringing it again. ii. A.K.A.: Prohibition against splitting cause of action iii. A.K.A.: Double Jeopardy – Criminal Law iv. Precludes, once case is over those things actually litigated, and those things that could have been litigated under definition of claim. v. Wanting to give Π autonomy, wanting to be more efficient/may backfire as Π may assert a ton of claims, about balancing those ideas. vi. Raised as an affirmative defense on a motion to dismiss 12(b)(6) B. Factors i. Same Parties 1. Being a party in the same relative position (Claimant) 2. P doesn’t always have to be the P, D doesn’t always have to be the D [counterclaims/compulsory cross-claims] ii. Valid 1. 2. 3. 4. Final Judgment Personal jurisdiction must be proper SMJ must be proper Adequate notice, constitutionally and statutorily adequate The judgment doesn’t have to be “correct”. iii. On The Merits 1. Rule 41 (Dismissals) – say that they operate as judgment on the merits. 18 2. Rule 12(b)(1)-(b)(7), excluding 12(b)(6) dismissals b/c they are not on the merits of the case. iv. Same Claim 1. Primary Rights Test a. Developed during narrow pleading rules – focuses on point of view of Π – Figure out which claims he actually has. 2. Wrongful Acts Test a. How many things did Δ do that were wrong? 3. Same Evidence Test a. The evidence of the two claims are about the same OR there would also be evidence about the claims that is different. Some evidence from both claims may overlap. 4. Same Transaction or Occurrence test a. Whether there is a logical relationship i. In GA, PD and PI are separate claims ii. Whole orbit of things that happen could conceivably be broken into separate things, if Π files suit and does not use one claim. XXIII. Issue Preclusion – Collateral Estoppel A. Generally i. Only prohibits those things that were actually litigated/decided in the original case. ii. Not the same claim under claim preclusion B. Factors i. Same Issue ii. Litigated 1. How much energy have we put into it? iii. Determined 1. Has it already been litigated? iv. Necessary to the judgment 1. The closer it is to being an essential part of the case and more attention that was put on it. v. Parties 1. OFFENSIVE NON-MUTUAL COLLATERAL ESTOPPEL: You cannot relitigate the issue that I or someone in my position has litigated once – under common law it would not be allowed because the plaintiff would be grabbing onto coattails of the first plaintiff. However if it is P2 vs. D1??? 2. DEFENSIVE NON-MUTUAL COLLATERAL ESTOPPEL: Defensive v. Offensive depends only on who won the first case. 3. Doctrine of Mutuality: The only people at risk were the original parties and the only people that should get preclusive effect are those parties. Cromwell v. County of Sac Issue preclusion only covers the same issues if the issue were actually litigated and actually decided. Suits on stocks are different because each transaction is separate and there is no issue preclusion. 19 Rios v. Davis The party had to have his day in court in order for res judicata/ issue preclusion to be asserted. Hardy v. Johns-Manville Ask these questions when trying to determine the quality of the first case and the comparison to the second case: o Was the first case sufficiently similar to the first one as far as the stakes/rights that it makes sense to apply it to the second one (sufficiently similar in the surrounding procedure)? o Whether or not in using these in non-mutual ways prevents someone from getting his day in court (visceral reaction is usually the right one, i.e. is it fair to say the next party cannot litigate the issue)? A person may be bound by a judgment even though not a party if one of the parties to the suit is so closely aligned with his interests as to be virtually representative of the interests of a non-party is one of fact for the trial court. Close relationships: o A non-party that has succeeded to a party’s interest in property o A non-party that controlled in the original suit o A non-party whose interests were represented adequately by a party in the original suit. The appearance of fairness – If there is a likelihood that it is going to be different although not a strong one, we should at least give it a chance. Good counsel, intense litigation, raising of the relevant issues, may make using it less offensive. Parklane Hosiery v. Shore Factors to consider in deciding whether there should be issue preclusion: o Foreseeability (knowing they had everything to lose in first suit); o Easy joinder in the first case (could have entered into it); o Not inconsistent (not 15 losers and 1 winner); o No different procedural opportunities (jury trial or not – but jury trial is not alone enough to justify the denial of offensive non-mutual collateral estoppel). XXIV. ERIE DOCTRINE A. Reasons for Federal Court i. Federal court might say something different about mutuality ii. Discovery rules iii. Choice of voir dire (examining prospective jurors/witness/ evidence for competence/appropriateness) – also the oath to tell truth administered to witnesses iv. Different sized juries B. Historical Context i. 1789: Judiciary Act (28 USC §1652) – Rules of Decision Act: The laws of the several states shall be regarded as the rules of decisions in civil actions. 1. The use of state law in federal court only if there is no federal statute, treaty or constitution provision on point. 2. Use the law that the state in which it sits would apply 20 ii. 1842: Swift v. Tyson – The word “laws” has a very specific meaning – referring to statutes and the judicial interpretation of them. 1. It did not include common law (judicial decisions). 2. For every thing but statutes we use the federal general common law. 3. The Court never explicitly said which part of the Constitution that Swift violated, but it is assumed that it is the 10th Amendment which reserves all powers not granted to the federal government to the states. iii. 1934: Rules Enabling Act (28 USC §2072) 1. The Supreme Court shall have the power to make practice and procedure; which ultimately became the FRCP (supposed to take effect in 1938). iv. 1938: FRCP came into effect v. 1938: Erie v. Tompkins – It is the law of the state that will determine. vi. Generally, procedure would have been state law from 1842-1938 and the law would have been federal general common law. vii. Once Erie and FRCP, the law that applies in federal court for diversity cases will be the state law and procedure that which is dictated in FRCP. 1. Why did court do this? a. Consistency between federal and state court b. Forum shopping c. Protecting federalism (state decisions) d. Makes federal courts responsible for knowing state law e. No more incentive to go to federal court f. Realist movements (positivism) – laws made by state legislation g. No enumerated power to the federal court to do general law 2. Constitutional Issue a. There is no federal general common law (Congress has no powers to declare substantive rules of common law applicable in a state whether they be local in their nature or general…) b. Constitution - §8: Congress has the power to make all laws that will be necessary to get these things to work. Congress can do anything to make the courts work correctly. c. 10th Amendment: What ever is not specifically mentioned here is left to the states. d. The job of the Federal Courts in diversity cases is to apply state common law [Ks, probate, torts, and property cases]. C. Specific Cases i. Erie v. Tompkins, 1938 1. Federal trial courts hearing diversity cases were directly to apply the same state law that a state court hearing the same case would have used. 2. Reasons for abolishing Swift a. Federal courts have never been able to distinguish fully the circumstances in which they could apply federal general common law from those where they had to apply state law. 21 b. Forum shopping by claimants to obtain benefits of federal common law made the outcome of the case often depend more on the court selected rather than the merits of the case. c. Growing concern that nothing in the Rules of Decision Act gave federal courts authority to create federal general common law. 3. Substantive vs. Procedural a. Substantive: The law that determines whether a party has a claim cognizable in a court and whether the defendant has a legal defense that bars such a claim on the merits. b. Procedural: Governs the way in which both a plaintiff and defendant must present their sides of the case to the court ii. Guaranty Trust v. York, 1945 – [substantive] 1. Federal courts must use state procedure whenever the choice of procedure would determine the outcome of the case. 2. SOL – substantive b/c it relates to the suit iii. Byrd v. Blue Ridge 1. If the rule is essential to the state’s policy and can’t carry forth the policy by picking pieces out of it, you must apply the rule. 2. The court extended Erie to include consideration of competing state and federal interests in applying state and federal procedure and evaluation of the possibility that application of federal procedure might significantly affect the outcome of the case. Weighing the following: a. Relative strength of state interests behind state procedure b. Relative strength of federal interests behind federal procedure c. Likelihood that application of federal procedure will significantly alter the outcome of the case 3. In order to determine the interests, attorneys must research the policies, current trends in recent decision, legislative history, i.e. the stated objectives of the law. 4. BYRD GIVES NO FACTORS ON HOW TO ASSESS THE INTERESTS. iv. Cohen v. Beneficial Industrial Loan, 1949 1. Procedural vs. Substantive – FRCP on point 2. Case here was dismissed on the basis of legal procedure v. Ragan v. Merchants Transfer, 1949 1. Since the results would differ and therefore outcome determinative we should apply state law. 2. FRCP on point. vi. Woods v. Interstate Realty, Co., 1949 1. FRCP on point – 2. Followed York; Applied state law which barred corporations that did not register in state from suing in state, thus the Fed Ct followed York (says follow state procedure when it determines the outcome) and barred those same 22 corporations from suing in Fed Ct with jurisdiction over state. vii. Hanna v. Plumer, 1965 1. Step 1: Is it a rule of civil procedure? 2. Step 2: Is this rule really a rule? (Always going to be yes) 3. Step 3: Is the rule in direct conflict with the state rule? (State Policy v. FRCP – One says to do something and the other says not to do something) 4. Step 4: Does the rules of civil procedure in direct collision abridge or modify the state rule? 23 THE ERIE FLOW CHART Is there a FRCP in direct conflict with a state statute? A. YES – 2072 analysis 1. Is it really procedural or substantive? 2. Does it alter, abridge or modify? (Are they really in conflict?) a. Look at what each one is trying to do – is it impossible to do both? YES NO Do Erie, Byrd, Hanna Go with the FRCP B. NO – Do Erie, Byrd, Hanna analysis 1. Is the state rule bound up with rights and obligations of the parties? YES NO Probably state rule Look to O/D Test (Judges still do balancing in #3) Whether the other rule would have changed it to begin with (encourage one system over the other) YES State Rule Applies Sort of NO Balance state’s & Federal Rule fed**– Look at state Applies Vs. Fed claims involved 1. 2. 3. 4. 5. Five things determine: Whether it solely relates to the activity at hand? Only applicable or integral to certain types of cases? Background of Rule & intended purpose Whether parties relied on state rule Which rule is more fair Substantive: SOL, conflict of laws, door-closing statute, whether P has a cause of action. Procedural: burden of proof, whether question will go to the jury or judge, manner of service, venue selection **FACTORS to Balance: 1. Look at number of state vs. federal claims involved 2. Underlying federal policy vs. state interest 3. Discrimination by citizens against non-citizens a. Non-citizen can remove to federal court b. Citizen D cannot remove 4. Essential character of federal court altered? 5. Analyze what the two governments are trying to accomplish. 24