Law School Outline - Civil Procedure 2 - Flow Charts 2

DISCOVERY DEPOSITION (10 per side) Party or NON PARTY Reasonable notice to all parties. NON PARTY -Within 100 miles of residence, work, transact business -MUST SUPEONA, if you fail to supeona you must pay reasonable expenses, attorney’s fees INTERROGATORIES (written answers to ? good for objective info 25 per side.) ONLY PARTY Recipient has 30 days to respond Can object with specificity SANCTIONS: Total failure – Instant Partial failure- motion to compel Production of Documents/Things Party or NON PARTY NON PARTY SDT=for non party comands production of items SANCTIONS Total failure – Instant Partial failuremotion to compel MED EXAM NEED CT ORDER 1)No contempt if fail to submit. 2)Can ask for report but waive privileges. 3)Certified or licensed people includes physical therapist. Eye exam, etc. REQUEST 4 ADMISSION 1) If not denied 30 day is admitted. 2) Just say “I deny”. 3) If deny and later admit recover cost & attorneys fees in proving that fact Total failure=party doesn’t show up 1)establishment order-decrees facts are true 2)order striking out pleadings 3)no defenses allowed Partial failure-party refuses to answer some ?s `motion to compel (include certification that tried to work things out) SCOPE 1) Relevant 2) Not Priviledged Attorney/Client Work Product – material prepared with “an eye toward litigation” Witness statement –Other side can get if “substantial need” Defense -Will not get is opinion work product Lousy Witness- Will not get is opinion work product Right to a Jury Trial/ Test for Jury under 7 th Amendment **7th amendment does not grant right to a jury trial, It preserves it only in federal courts although most states adopt it*** 1. Juries decide disputes of fact. Judge decides the law. 2. Must demand a jury trial in writing. 3. 7th amendment “preserves” the jury right at actions at law, “not equity” Look to English common law in 1791 to determine if have jury trial. Equity courts - only when remedy at law is inadequate (money) Example: Guy trespasses every day. “Schleping” -Legal damages- Minimal $5 a day. This is inadequate -Equity - Want an injunction to stop shlepping Examples of Equity in 1791: Arbitration Award, Trustee Relationship, Fair Representation What equity courts can do? 1. Injunction 2. Reformation 3. Recision 4. Specific Performance/.Declatory Judgment – court tell rights **If case has law and equity issues** Beacon Theaters and Dairy Queen 1. Determine Jury right issue by issue 2. If an issue underlies law and equity get a jury. 3. Always try the jury issues first SELECTING A JURY A. FRCP - Civil case, fed.court jury no fewer than 6 and no more than 12. 1.Verdict must be unanimous. a.Only not the case if parties stipulate in advance 2. No verdict from fewer than 6. a. Jurors can be excused for good cause b. Encourages larger juries so it’s okay to loose some along the way. 3. No such thing as Alternative Juror in Civil case Fed. Court. B. What does Jury Do? 1. Determine facts 2. Charged by judge what law is. 3. Jury Nullification – only criminal cases C. Voir Dire 1. Process by which select jury 2. Venire  Taylor v. Louisiana- lists from which juries are selected must reflect a reasonable cross-section of the population a. Large group in court room. From venire select jury. b. Looking for potential bias. Want no independant knowledge Usually done orally. In fed. Court questioning done by judge. 3. Challenges/Strikes 1. For cause a. Have to be articulated/Done for a reason.  Jurors may be struck if 1. They have a close relationship with any party or witness 2. When they have such fixed opinions that they could not judge impartially the guilt of the defendant” b. Unlimited 2. Peremptory a. Historically didn’t have to be justified. B. Limited by statue 1. 3 per side not per plaintiff (doesn’t matter how many defendants or plaintiffs) C. Based on intuition D. J.E.B. v. Alabama - selection of jury is important governmental act, no discrimination based on race or sex JEB - Everyone is a state actor - Edmonson  Purely private civil case is state action. The process is over seen by state 1. Discrimination against women. 2. Paternity case 3. State of Alabama on behalf of relator 4. Batson-EPC of 14th amendment governs the exercise of peremptory challenges by a prosecutor in a criminal case. Is STATE action. Issue was race. 1. EPC guarantees equal protection of laws visa vi the government 2. 14th amendment says states can’t do this to you. Does not mention individuals. 3. There are statutes which prohibit individuals from doing this (Schooling, Employment,etc.) 4. Actual jury that tries you does not have to be racially representative. Only the venire. Can’t guarantee that the 6 selected will mirror society. 5. Georgia v. McCollum  Criminal defendant may not use peremptories in a racially discriminated way. What is protected? A. Race - strict scrutiny B. Gender - must be justified by more than rational basis.. is heightened scrutiny, not strict scruitny (need real good but not compelling reason) C. Court says striking based on race and gender is supporting stereotyping. D. National Origin? Don’t know where line is drawn. E. Deacon in Baptist Church? Can you strike if gay person sued because of religious beliefs? F. Will this lead to everything being a Batson challenge? G. Concern that we are protecting juror’s rights and not litigant’s rights. Litigants don’t have chance to let their lawyer’s challenge. 12B6 Failure to state a claim. Assume everything pl. said in pleading is true is there a claim Moving to Litigation Summary Judgment - Rule 56 1. Use if there are only questions of LAW. 2. “Pierces the pleadings” looks at evidence. A. Evidence comes from parties who “proffer evidence to the ct.” B. Anything admissible if were at trial. C. Types of evidence must be under oath 1.Affidavits = document stating facts 2. Depositions 3. Interrogatories 4. Verified (under oath) pleadings PL. testifies DEF CAN BRING MOTION FOR JMOL 1. 2. 3. Judge takes case away from jury. Reasonable people could not disagree on the result Look at evidence at trial. Can be brought after the other side has been heard. DEF. Testifies/Evidence closed PLAINTIFF AND DEFENDANT CAN MAKE A MOTION FOR JMOL ***IN ORDER FOR DEF. TO SEEK RENEWED JMOL MUST MAKE MOTION FOR JNOV HERE*** JURY RETURNS VERDICT/ JUDGMENT ENTERED ON VERDICT Motion for Renewed JMOL(JNOV) Rule 50B 1. Jury returns a verdict, judgment is entered on verdict, now looser brings renewed JMOL. If granted the looser, wins. 2. Must have moved for JMOL at the close of all evidence or else waive renewed JMOL. MOTION FOR A NEW TRIAL 1. DO BOTH AT THE SAME TIME!!!! Reasons for a new trial a. Procedure – failed to move for JMOL at close of all evidence b. Substantial – lower threshold than JMOL Types a. Conditional 1. New trial unless pl. agrees to accept less Remittir 2. New trial unless def. Pays more Additur – illegal in fed court b. Partial Trial - Only on one issue 2. CLAIM PRECLUSION CASE ONE AND TWO INVOLVE SAME CLAIM TORT CLAIM 1. Primary Rights 2. Single Wrongful Act 3. Restatement CONTRACT CLAIM Each contract is separate cause of action Must sue for all prior SAME CLAIMANT SUING SAME DEFENDANT (INCLUDES PRIVITY) Privity Relationships 1. Representation – ex. class action 2. Fiduciary suing on behalf of beneficiaries 3. Substantive legal relationship – ex. successive owners of property JUDGEMENT MUST BE VALID, FINAL, JUDGMENT ON THE MERITS VALID JUDGMENT BY A COURT THAT HAD PJ AND SMJ FINAL JUDGMENT (interlocutory rulings are not final) 1. Appeals a. Fed court say is final b. Some states disagree 2. 60B motion to set aside judgment based on previous judgment that had been reversed ON THE MERITS (your day in court was made available to you) 1. Rule 41B – all dismissal are on the merits EXCEPT jurisdiction, venue and indispensible parties Collateral Estoppel (Issue Preclusion) . Case 1 ended in a valid, final, judgment on the merits (see claim preclusion) . The same issue was actually litigated and determined in case one. Issue was essential to the judgment in case one. a. check if contributory negligent state because if the pl. is found contributorily negligent and def. Is found negligent, def’s negligent can be relitigated because not essential to judgment Against whom is Collateral Estoppel Asserted Only against someone who was a party or in privity in case one Privity Relationships 4. Representation – ex. class action 5. Fiduciary suing on behalf of beneficiaries 6. Substantive legal relationship – ex. successive owners of property By whom is Collateral Estoppel Asserted a. b. Tradition rule is mutuality but courts allow non mutual CE Non Mutual Defensive Collateral estoppel – person using it wasn’t a party in case one and is the def. In case 2. TEST FOR IT. 1. Must have had a full chance to litigate in case one. 2. Valid, final Judgment on Merits 3. Same issue 4. Issue Essential to Judgment 5. Is being asserted against someone a party or in privity in case one. c. Non Mutual Offensive Collateral estoppel – Used by Pl. TEST FOR IT 1. Valid, Final Judgment on Merits 2. Same issue 3. Issue Essential to Judgment 4. Is being asserted agains someone a party or in privity in case on ***Most Courts DON’T allow this but trend is to allow if FAIR*** Parklane Fairness Factors 1. Pl. Had full chance to litigate in case 1. 2. Pl. Could see multiple suits. 3. PL. could not easily have joined (only way intervention) 4. No inconsistent judgments. SUPPLEMENTAL JURISDICTION 1. It gets non fed Q, non Diversity in federal court even though claim alone could never go to federal court as long as claim arises under same t/o 2. Article III. Sec. 2 gives jurisdiction to federal court on a "case or controversy" Make sure Pl. has an underlying claim that has FQ or Diversity 1367a: all cases that meets Gibbs/same t/o. Applies to joinder of additional parties. 1367b: 1367b - kills supplemental jrd in fed. 3 types when killed in diversity case; 1. Claims by pls v. R.14,19,20,24 (third party def, absentee, joinder ,intervention) 2. Claims by Rule 19 Plaintiffs (absentee) 3. Claims by Rule 24 Plaintiffs (intervention) . 1367c: Factors to look at to determine if to use supplemental discretion 1. Federal claims are dismissed before trial then dismiss state claims. If dismiss FQ claim before trial then ought to get rid of state law claim because it alone can’t be in federal court. Timing is crucial. May 86 state law claim if FedQ is dismissed early. 2. If state law issue predominates. Rule 18 (a)3. plaintiff may fileconfuses the jury. defendant - If combination anything against 1. If judge decides too many claims then separate trials. Rule 42B 2. Matters may be consolidated in separate trials. 18a – Allows a claimant to assert every claim she has against opposing party. Check SMJ. FQ, Diversity or Supplemental Jurisdiction. Joinder - 20a is permissive may join as long as 1. same t/o 2. one common question 3. Check SMJ If violate Rule 20 WE SEVER and make 2 cases (not separate trial) (REMEDY IS NOT DISMISSAL FOR MISJOINDER) Consolidation -. Rule 42. Have more than one case pending in the same jurisdiction. The court orders that will do things together. Cases are still separate, 2 decisions. 1. Test is common question. General rule pls sue alone and choose to load up defendent’s side so can avoid whipsaw probelm, each def can’t blaim an absent defendent. Counterclaim 1. Compulsory 13a – a. arises from same t/o, must assert this or loose b. Check SMJ FQ Diversity Supplemental 1. Meets 1367a same t/o 2. Check 1367b kills supplemental jurisdiction in diversity case Claims by Pls v. R14,19,20,24 (third party def. Absentee, joinder, intervention) Claims by Rule 19 pl (absentee) Claims by Rule 24 pl (intervention) 2. Permissive 13b a. does not arise from same t/o Cross b. Check SMJ Claims 13g Against a co-party be FQ or diversity because inherently fails 1367a because not same t/o 1. Must Permissive – 13b A. does not have to arise from same t/o (inherently fails 1367a of SMJ) B. Check SMJ, must be FQ or divers P 13a – Arise from same t/o Check SMJ FQ Div Supp – 13a same t/o 13b in diversity cases D IMPLEADER – Rule 14 (is narrower than 18a) Allows a defending party to join an absentee who is or may be liable to that defending party for the underlying claim against the defending party. Must do this within 10 days of answering or then ask courts permission. A. Indemnity - shift the liability from def to TPD, shift entire liability example - insurance, vicarious liability B. Contribution - shift the liability from def to TPD, shift part liability example - joint tort feasers 14a upsloping - Pl may assert a claim against TPD must arise from same t/o as underlying dispute. Check SMJ. No supplemental Jurisdiction violates 1367B. 14a downsloping - TPD. May assert a claim against Pl. Supplemental jurisdiction is okay. Meets 1367a same t/o and 1367b 14a upsloping: 1. Pl asserts claim against TPD from same t/o 2. Check SMJ a. FQ b. Diversity c. Supplemental 1. Meets 1367 a – same t/o 2. In diversity case supp is killed . Pl v. Rule 14 def. TPD Rule 14 D wants indemnity or contribution from TPD P 14a downsloping 1. TPD asserts claim against P arising from same t/o 2. Check SMJ a. FQ b. Diversity c. Supplemental 1. Meets 1367a same t/o D TPD 2. Meets 1367b diversity case because only applies to pl. Rule 14 – D wants indemnity or contribution from TPD P D Rule 19 analysis: ABSENTEE (invoked by def. Can be invoked by court) Is the absentee necessary? 1. 19a2i - interest in efficiency - protect absentee; without her not complete relief among the parties (can argue both ways among the current parties or among all the parties) OR 2. 19a2ii - protect defendent; can’t be harmed as a legal manner, no claim preclusion; must be real world harm as a practical matter impair or impede the person’s ability to protect that interest ***Joint tortfeasers are never necessary*** because can 14a implead as TPD Is joinder feasible? -PJ -Valid objection to venue - SMJ - alignment. Ask whose side is the absentee on? Supplemental Jurisdiction – Never okay 1367a - necessary is always same t/o. Meet this. 1367b - Either have rule Rule 19 pl or Rule 19 defendent. If joinder not feasible because destroys SMJ, do we proceed or dismiss? If indispensible then can't join. So dismiss 12B7. Factors to consider 1. Qualitiativley (look to see who will win or loose on the face)to what extent prejudicial to absentee or those already parties 2. Molding the decree- Is there something the judge can do so the harm won’t happen? (Largely ignored by courts) 3. Efficiency - by proceeding without absentee 4. Whether the plaintiff will have an adequate remedy if the action is dismissed for non-joinder?*** go to state court and can hear both claim. Goals of rule 19 can be met in state court PJ and SMJ. INTERVENTION -- RULE 24 allows absentee to bring herself into the case ALIGNMENT Choose which side to intervene on – Ask: Where is my interest? Court may realign. TIMLINESS Must intervene timely – up to court’s discretion Some courts even allow intervention for appeal TYPE OF INTERVENTION INTERVENTION BY RIGHT -STATUTUE ALLOWS INTERVENTION INTERVENTION BY NECESITY - ALLOW INTERVENTION TO PROTECT ABSENTEE’S INTEREST **unless absentee’s interest is already being looked out for(basically meaningless) CLAIM OR DEFENSE MUST HAVE AT LEAST ONE COMMON QUESTION SUBJECT MATTER JURISDICTION FQ DIVERSITY NO SUPPLEMENTAL JURISDICTION (UNLESS FQ IS UNDERLYING CLAIM) 1. 1367A MET BECAUSE IF ABSENTEE SO CLSOE TO CLAIM THAT INTEREST CAN BE INFRINGED ON THEN SAME T/O 2. 1367B – FAILS – IN DIVERSITY CASE A. KILLS SUPP. JUR BY RULE 24 PL B. KILLS SUPP JUR AGAINST RULE 24 DEF. Class Action Rule 23 Courts have to approve settlements Types of Class Action – 23b 1.a Protect def. against multiple inconsistent obligations b. similar to 19 – after injunction or declaratory judgment – employment discrimination 2. Injunction/Declaratory Judgment 3. Damages class action a. Common question must predominate b. Class action must be superior method to ejudicate c. Representative must pay to give notice to everyone reasonably identifiable. (Rep may not be adequate if she can’t afford this). *Notice allows opt out REPRESENTATIVE Must meet four requirements: 23a 1. Numerosity: Class must be so large that joinder is impracticale 2. Commonality – Must be a common claim 3. Typicality- Rep’s claim has to be typical of rest of claim 4. Adequacy of Rep- Focus on the lawyer is she capable of representivng someone **There must be a class – need to be able to find everyone if win, need a specific circumstance can’t say all people interested in free speech*** Defendant: Company CHECK SMJ 1. FQ 2. Diversity a. For citizenship look to citizenship of REP b. For amount in controversy every member in the class has to assert greater than 75K 3. Supplemental CLASS ***If multiple defendant’s can’t have supplemental jurisdiction in diversity case because violates 1367b Pl v. Rule 20 def** INTERPLEADER – RULE 22 PREMISE Fight over res (property, stake) court will only distrube the res TYPE OF INTERPLEADER True Interpleader –stakeholder is disinterested (usually insurance companies) Case in the nature of Interpleader –stakeholder is interested party (wants res) P to D(S/H) and stakeholder does not want to 12B7 dismiss for failure to join an indispensible party can assert a counterclaim (complusory 13a) against P and then join absentees (Rule 19 or 2)_ P (13a) D (Stakeholder) 13h A No Jury – Stakeholder sues all claimants and claimants assert their case 1. Must convince court that he/she is interpleader fighting over res 2. Must have SMJ 3. Must deposit res in the jurisdiction on the court. CLAIMANTS FIGHT IT OUT (AND STAKEHOLDER IF INTERESTED) Jury if meet 7th amendment test Rule Interpleader PJ/service of Process Regular Amount in Controversy Greater than 75K Diversity Stakeholder different citizenship from every plaintiff Injunction Yes Venue §1391 District where substantial part of claim arose or all defendants reside §1397 District where any claimant resides Statutory Interpleader nationwide $500 or more Claimants diverse from another (In interested stakeholder, included) Can have injunction /restraint