Civil Procedure Law School Outline -- Loyola

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					                         Civil Procedure Outline - Willis 2005
   For a valid judgment, court needs: 1) notice, 2) SMJ, and 3) PJ
***Valid Notice and Opportunity to be Heard***
  1. To determine what process is due (what kind of notice, opportunity to be heard, right to an
     attorney) before gov’t deprives life, liberty, or property apply Mathews Test, Weigh:
          Private interest that will be affected by the gov’t action (ex: tenured employee wages-
            Loudermill/Gilbert, chattels-Sniadech, welfare benefits-Goldberg, social security benefits-
            Mathews, property-Fuentes/Doehr)
          Risk of an erroneous deprivation through procedures used, including probable value of
            additional procedural safeguards (high: being fired w/o hearing-Loudermill / low: well-
            documented social security benefits-Mathews, 3rd party determines facts-Gilbert)
          Gov’t interest that would be impaired if additional procedural safeguards were given (like
            fiscal and administrative burden).
          If considering right to an attorney, balance above factors against fact that only D’s who are
            at risk of losing their physical liberty have a right to a free court appointed attorney (yes:
            losing parental right-Lassiter, no: veteran’s benefits-Walters)
  2. Proper notice: Both Constitutional and Rules requirements (if conflict, const. wins)
          Mullane test to determine if method used for notice (service of summons, publication etc)
            satisfies due process – but in fed ct need Rule 4 too!
                  i. Actual Notice or
                 ii. Reasonably calculated under circumstances to give actual notice (yes: / no: posting
                     eviction hearing notice on apartment door knowing they get taken down-Green,
                     knowing in prison-Doonsbery) or
                iii. If conditions prevent that, then no worse than customary and feasible alternatives
          Other Due Process Requirements
                  i.   No Fraud (ex: served while lured by trickery-Wyman)
                 ii.   No serving while immune from service (ex: in town as D in criminal trial-Lamb)
          In Federal District Ct: Rule 4 requirements must be met
                  i. For indiv. w/in US, signed waiver or service via state method, or in-hand or at
                     dwelling (Khashoggi) or to agent.
                 ii. For indiv. In foreign country, rule 4(f)
                iii. For infants & incompetent, rule 4(g); etc.
          In State Ct: Follow State‟s Rules
  3. Challenging Improper Service - D has 2 options
          Move to dismiss under rule 12(b)(5) motion (Fed ct).
          Wait for default judgment and move that it’s invalid under rule 60.

***Personal Jurisdiction (PJ) Analysis***
  1. Waiver analysis:
     (a) Did D raise PJ defense in 1st substantive filing w/ court?
          Fed ct: rule 12 motion to dismiss (if lose, can’t appeal until final j-ment unless get
                  permission for interlocutory appeal)
          CA state ct: motion to quash summons (if lose must get interloc appeal via writ of
                  mandamus from ct. of appeals w/in 10 days, can’t appeal after final j-ment)
                 If no, court may exercise PJ over D.
                 If yes, go to contractual analysis 

                                                   1
   (b)     Contractual analysis: Does forum selection clause govern action (NOT choice of law
           provision)? Note: waiver enforceable unless fundamental unfairness (fraud, clause hidden,
           where party doesn’t have opportunity to decide to be bound) or extreme inconvenience
           (foreign country?) can be proven (Carnival cruise).
                 If yes, can exercise PJ over D in that forum only.
                 If no in federal court, go to Rule 4(k) analysis 
                 If no in state court, go to Statutory analysis 
2. If in federal court, Rule 4(k) analysis:
        (1)(A): says that a fed ct would have PJ if the state court of general SMJ where district ct is
           located would also have PJ-imports state long-arm from that state.
        (1)(B): 3rd parties – bulge rule (can serve D in district or w/in 100 miles of district ct.)
        (1)(C): federal interpleader
        (1)(D): fed statutes w/ nationwide service of process
        (2): for fed Q claims against alien D not subject to PJ in any state’s courts (ct must
           determine this by looking at all contacts with other states-Aerogroup), but has enough
           contacts w/ entire US to meet DP.
                 If (1)(A) maybe basis for PJ go to Statutory analysis 
                 If (1)(B), (C), (D) or (2) maybe basis for PJ, go to Const. analysis [Note: due
                     process for 5th Amend.-for min contacts forum is entire U.S.]
3. Statutory analysis: Does state long arm statute permit PJ to be exercised?
        2 kinds: expansive (cali) and limited
        Statute should be interpreted as openly as due process and statute allow b/c written to
           protect the state’s residents that want to sue nonresidents.
                 If no, cannot exercise PJ over D in that forum.
                 If yes, go to Constitutional analysis 
4. Constitutional analysis:
    (a) Is general PJ available over D? (apply if C/A is unrelated to contacts with
          forum state)
        For Scalia 4, was D served in forum? (or for White, was D in forum voluntarily when
           served?) If yes, can exercise general PJ over D (Pennoyer, Burnham).
                 If no or if not Scalia 4, go to nature of contacts analysis 
        Nature of contacts: Are contacts w/ forum substantial or systematic & continuous, &
           purposeful? (does D feel at home in forum state?)
                        Is: for corporation: where incorporated, where principal place of biz, may
                           also have sig. contacts elsewhere. For indiv: where citizen/domicle, owns
                           property, may also have sig. contacts elsewhere. For website: site is 24/7,
                           systematic and continuous, zippo test, majority of business from forum
                        Is not: low quantum of contacts: never setting foot in forum, earning
                           minimal revenue from business in forum
                 If yes, go to reasonableness test 
                 If no, go to specific PJ analysis 
    (b) Is specific PJ available over D? Does C/A arise from D’s contacts w/ forum (relatedness)?
        But For Test: but for D’s contact with P or P’s forum, the C/A wouldn’t have happened
                                                   2
        (but for D’s contact w/ Mass company, wifey wouldn’t have drowned – Tak How). Cali is
        “but for” jurisd. (but for truck driver’s driving to Cali, he wouldn’t have hit and killed the
        Cali resident in Nevada-Cornelison v. Chaney). Weak test, easy to meet, but fairness
        ensured by reasonableness test.
      Proximate Cause Test: reasonable person would’ve foreseen that D’s actions could land
        them in court in the forum (injury during a cruise where ticket was purchased in forum
        doesn’t work under this test).
      Loose Proximate Cause Test: what most courts use – in between “but for” and “proximate
        cause” Tak How .
               If no, cannot exercise PJ over D.
               If yes, go to purposeful contacts test 
      Purposeful contacts test: Are there minimum contacts by which D purposefully availed
        self of forum? (stream of commerce + knowledge 4/4 split)
             i. continuous and systematic activity in forum: is: Int’l shoe, BK-small but continuous
                 / Is not: World Wide.
            ii. forseeability (objective standard): D could foresee that he might be haled to court in
                 forum for his actions. Can: libel (Calder v. Jones) or trademark infringement
                 (Digital v. Altavista, BK) cases where defamed/infringed person is in forum,
                 committing a tort on someone who’s from forum, signing contract w/ choice of law
                 provision (BK) / cannot: when D’s product enters forum unilaterally (World Wide).
           iii. purposely reach out and touch the forum thus benefiting from its laws: is: Magee
                 insurance case, Int’l Shoe-selling products via agents in state, BK-contract created
                 with forum’s laws / is not: World Wide-product enters state unilaterally, Colco-
                 divorced dad’s kids move to Cali w/ mom & she tried to sue him there, Hansen-P
                 entered into agreement w/ D and then moved states and tried to sue in new state.
           iv. benefiting economically by putting product in stream of commerce: O’Connor 4
                 say must be purposeful-advertising in forum, designing product for forum’s market,
                 other 4 say product landing out of commerce into forum is enough as long as
                 known it’s going to that state (Asahi).
            v. website: zippo test-active and commercial vs passive and noncommercial-sliding
                 scale (active & commercial – selling products, advertising (Digital), subscriptions,
                 click-wrap agreement (forum selection clause) / passive & noncommercial –
                 chatrooms, posting info, no advertising or selling)
                 If no, can not exercise specific PJ over D.
                 If yes, go to reasonableness test 
1) Reasonableness test: Weigh
      burden on defendant: high: foreign D (Asahi) / low: when D is big business (Int’l Shoe) or
        rich, when D does libel or infringes trademark-should have known, when forum is nearby
        D’s state
      forum State’s interest: high: maintaining unemployment funds (Int’l Shoe), protecting
        residents against faulty products (Amercian Radiator), protecting residents against libel or
        trademark infringement (Digital, BK), regulating practice of medicine / low: foreign
        indemnity case (Asahi), when other state’s laws regulate D (like docs licensed in other
        state), when forum would have to apply somewhere else’s laws (U.S. would have to apply
        Canadian trademark laws-Aerogroup)
      P’s interest in convenient & effective relief: is: when forum is most convenient state for P
                                                3
             (Int’l Shoe)
            interstate interest in efficiency): is: witnesses and evidence in forum (Int’l Shoe)
            interstate interest in substantive social policies: ex: don’t want to chill divorced dads from
             letting children leave the state w/ mom for fear of being sued in new state (Colco), when
             other states want control over their residents practices, foreign policies, good foreign
             relations
                      If balance weighs against finding PJ in forum, NO PJ over D.
                      If balance weighs in favor of finding PJ in forum, YES PJ over D.

***Ways to attack PJ***
  1) Direct attack: to raise lack of PJ by seeking to prevent entry of j-ment in action (put breaks on the
     litigation train)
           Must raise it in 1st substantive filing w/ court
           If raise directly in trial & appellate courts and lose, cannot re-raise it on collateral attack
              (right to be heard once, plus appeals)
  2) Collateral attack: to raise lack of PJ by challenging j-ment after it has already been entered

***Subject Matter Jurisdiction (SMJ) Analysis***
  1. Court must determine if it has SMJ, it’s not waivable
         Federal Court: court of limited jxd: Fed Q, Diversity, Supplemental and a few Others
            (Admiralty, bankruptcy, US party, fed antitrust, patent, copyright)
         State Court: given SMJ by state laws, but state cts of “general SMJ” can hear any type of
            case (including fed Q’s) for which there is not exclusive SMJ elsewhere. (state ct only:
            family law and probate)
  2. Choosing where to file (P) or whether to remove (D)
         Burden of Proof: for fed SMJ is on person who’s filing/removing to fed ct-Tanzymore
         Considerations: expertise of bench, jury pool, docket backlog/speed, responsiveness to
            indep concerns vs indep from local politics, political leanings of bench, procedural rules,
            attorney knowledge of court, whether D likely to remove (efficiency)
         If P wants to file in Fed ct, check the following:
                 i. Exclusive SMJ to fed ct: ex: bankruptcy, admiralty, where US is a party etc
                ii. Fed Q: P must file a well-pleaded complaint that states the fed Q as the pivotal
                    element - Mottley (doesn’t count if D states a fed Q in defense or counterclaim)
               iii. Diversity: At time of filing, No P may be citizen of same state as any D and good
                    faith amount in controversy must be over $75K. (28 USC § 1332(a)).
                    1. Citizenship is determined at time action commences (when filed), but complete
                        diversity can be created by dismissal of a nondiverse party, & can be created or
                        destroyed by realignment of a nondiverse party.
                     U.S. citizen: primary permanent domicile, w/ intent to return (Mas)
                     permanent resident alien: state where domiciled
                     corporation: where incorporated & principal place of biz
                     p’ship/LLC: where p’ners/members are citizens (Belleville Catering)
                     normal class action P: where class rep. Ps are citizens (easier to get into fed. Ct
                        via diversity)
                     >$5 million class or mass action: where any member is a citizen
                     executor: where deceased was citizen

                                                    4
                          insurer: if insured not a D, where insured is citizen & where insurer
                           incorporated & principal place biz

                      2.     Amount in Controversy:
                            exclusive of interest & costs
                            “legal certainty test” at time filed or removed (Red Cab)
                            injunctive relief: P viewpt or party seeking SMJ’s viewpt or either viewpt rule
                             (used in 9th circuit) - McCarty. Note: value of P’s claims, not D’s
                             counterclaims.
                         aggregation rules to reach > $75,000:
                             i. one P can sum all claims ag. one D
                            ii. one P cannot sum claims ag. separate Ds
                           iii. multiple Ps cannot sum separate & distinct individual claims
                             -identical claims of multiple Ps not summed b/c each have own separate C/A &
                             damages;
                             -only if a single shared & undivided right is at stake (e.g., an undivided interest
                             in property, a shareholder suit for injury to entire corporation), will courts find
                             amount in controversy is shared injury amount.
                            *But to reach >$5 million class action, can aggregate all class member claims.
              If P filed in state ct and D wants to remove to Fed ct, check the following:
                    i. Fed Q: if P put fed Q in the complaint (or if fed law preempts state law –artful
                        pleading doctrine) and filed in state ct, D can remove (entire) case w/in 30 days of
                        service or of notice that P has amended complaint to include a fed Q.
                   ii. Diversity: if fed ct has diversity SMJ AND no D is a citizen of state where fed ct is
                        located, then can remove. Must give notice to remove w/in 30 days of service or
                        notice that diversity now exists (w/in 1 year limit from when case is filed).
                  iii. Exclusive SMJ to State Court doesn’t exist (ex: family law, probate)
              If D removed case and P wants to remand, check the following:
                    i. Motion to remand must be made w/in 30 days of notice of removal unless for lack
                        of SMJ. At any time, case must be remanded if appears that district ct doesn’t have
                        SMJ.
                   ii. Except in a civil rights case, an order to remand is not reviewable on appeal.
                  iii. If P wants to add Ds after case has been removed, fed ct can deny joinder or permit
                        it and remand back to state ct.
              harmless error rule - as long as ct has SMJ at time of j-ment and as long as fed ct’s
               mistake doesn’t prejudice the party, j-ment is valid (Caterpillar)

***Supplemental Jurisdiction (Supp J) Analysis***
-Supp J Statute: 28 USC § 1367-
   A. 1367(a) Required elements:
      (1) a “trunk” or “original” or “federal” claim over which fed ct has original SMJ (fed Q,
      diversity, or “other”)
      (2) “branch” or “suppl.” or “nonfederal” claim is part of same case or controversy as trunk claim.
      Note: “same case or controversy” = “common nucleus of operative facts” btwn trunk claim &
      branch supp claim: logical relationship btwn claims, i.e., claims involve same key facts (this is
      broader than, & so includes, all claims arising from the same transaction or occurrence, i.e., the
      claims that could not be litigated in a 2nd case due to preclusion)



                                                       5
       Note: when 2 claims arise from a single t or o, there will always be a single common nucleus of
       operative fact (Gibbs), but when there are 2 claims based on 2 occurrences, it’s possible that they
       will also have a single nucleus of operative fact (Appletree, Exxon).
       Note: 1367(a) overturned Finley (Supreme ct refused to allow Supp J over claims related to a Fed
       Q trunk that required the joinder of additional parties)
   B. 1367(b) Diversity trunk exception: If trunk claim is diversity claim,
       (1) original Ps may not bring supp claims against persons made parties under Rule 14 (impleader),
       Rule 19 (compulsory joinder), Rule 20 (permissive joinder), or Rule 24 (intervention), &
       (2) new Ps proposed to be added under Rule 19 (compulsory joinder) or seeking to intervene as Ps
       under Rule 24 may not bring supp claims when exercising supp J over such claims would be
       inconsistent w/ diversity requirements (i.e. complete diversity + >75K)
       Note: Original Ps cannot evade complete diversity requirements - Owen
       Note: P joined under Rule 20 (permissive joinder) or a member of a class under Rule 23 (class
       actions), can bring a supp claim for less than 75K as long as diversity of citizenship is maintained
       b/c 1367(b) does not include claims by Ps joined under Rules 20 or 23 – Exxon (Zahn overruled).
       Note: any party can bring supp claims when “trunk” is not diversity claim & D can always bring
       supp claims (ok for D to destroy complete diversity)
   C. 1367(c) Judge may choose to decline Supp J (limited to reasons enumerated in the statute-“those
       expressed are to the exclusion of others”)
   D. 1367(d) SoL tolling provision (as long as party filed in fed ct w/in SoL, if claim is dismissed,
       party gets 30 extra days to re-file in state court)
   Note: Federalism concerns - if state law claims go to fed cts, if fed cts get it wrong, there’s no way for
   the state system to fix the problem where as if a state ct gets a fed Q wrong, it can be appealed all the
   way up to the US supreme ct and they can fix it.

***Venue Analysis***
    Not appealable after j-ment is entered.
    waivable (if don’t raise improper venue in first filing or if sign a forum selection clause)
    any party at any time can move for a change of venue: for convenience of parties, witnesses and
     courts

Proper venue in federal courts (when case filed in fed ct, not removed):
§ 1391(a) & (b): (1) if all Ds “reside” in same state, where any D “resides”, or
                    (2) where substantial part of events/omissions creating case occurred, or substantial
                         part of property that is subject of case is located, or
                    ONLY if neither (1) nor (2) exist in USA:
                    (3) diversity case  any District w/ PJ over any D [1391(a)]
                         Fed Q or “other” cases  any District where any D is “found” [1391(b)]
§ 1391(d): an alien can be sued in any District in the US.
§ 1446(a): for removed actions, District & Division where case was pending in state ct.
§1392: in a local in rem case where property is located in several districts w/in same state, even if it is less
than a substantial piece of the property, then venue is proper in any one of those multiple districts in that
same state.

“Resides” for purposes of venue:
    corporations: resides in all Districts where, treating Districts as if they were states, Dist. Ct. would
      have PJ over the corporation. If D is incorporated in a state, D has residence is ALL districts of
      that state.


                                                       6
      people: domicile, place intends to permanently live (some courts include place currently lives even
       if not permanent)

Venue Flowchart
(1) Is it a diversity case?
         Yes28 USC 1391(a)           No28 USC 1391(b) [Fed Q or other]
(2) Is there one D or more?
         1 D(A)         2+ D(B)
(A) Does D reside in US?
         YesVenue proper in that district(C)     NoIf D is an alien, venue is proper in any
                                                   district(C)
(B) Do all D’s reside in same state?
         YesVenue proper in a district where any D resides        No(C)
(C) Did a substantial part of claim occur in US?
         YesVenue proper in that district No(D)
(D) Diversityvenue proper where any D subject to PJ       Fed Q or “other”Venue proper where any
                                                           D is found
***Ways to attack Venue***
Procedure:
   (1) D may move to dismiss under rule 12 for improper venue; then P may move to transfer under
       1406 instead of dismissing.
   (2) If D fails to raise improper venue in first substantive filing, D can still request transfer via 1404 for
       convenience, or all parties could agree to change to a different venue in the same district (consent
       motion), or file motion to dismiss for forum non conveniens.
   (3) If P files in home state ct and D removes to fed ct and then moves to transfer to D’s home state, ct
       gives deference to P’s choice of forum if all else (ie convenience) is equal.
       Note: moving party has the burden of proof

   (1) Motion to dismiss for improper venue:
       12(b)(3): D must use it in 1st substantive filing or lose it.
       §1406: Court may dismiss or transfer to any proper venue.
           (Note: ct might sua sponte transfer venue to cure a PJ defect if S of L is up and P wouldn’t be
           able to re-file if case is dismissed)
   (2) Motion to change venue:
       § 1404(a): for convenience of parties or witnesses, or in interests justice, by motion or sua sponte,
       can transfer to any proper & better venue (Republic of Bolivia)
       § 1404(b): within discretion court, by consent motion of all parties, can transfer to any Division
       w/in District (consent motion)
       Note: Can transfer cases only among courts in one system – federal to federal, or county to county
       within a state, but not from one state to another or one country to another.
   (2) Motion to dismiss on grounds of forum non conveniens:
        venue is proper but a party seeks to change venue
        must dismiss b/c can’t transfer b/c no convenient court w/in that court system
        adequate alternative forum must be available outside dismissing court’s system
          change in applicable law will not affect forum non conveniens balancing unless alternative
             forum is so inadequate as to be no remedy at all (Piper Aircraft)
          Court can condition dismissal (e.g., on waiver of SoL or of service of new process)
          Outside alternative forum is substantially more appropriate b/c P’s interest in chosen forum
             (stronger for P’s home forum) outweighed by:
                                                       7
               private ints of parties: e.g.,   access to evidence & view of scene
                                                power & cost to bring in witnesses
                                                time, expense, efficiency
                                                enforceability of jment where rendered
                            &
               public ints of courts:   e.g.,   administrative burden on courts
                                                local interest in controversy
                                                familiarity of bench w/ law
                                                burden jury duty on unconnected jurors

         In Sum: For an FNC dismissal, the private and public interests in having the case dismissed must
         substantially outweigh P’s interests in the chosen forum AND there is no other option w/in the
         system AND another forum exists outside the system.

***Law applied to Diversity Cases***
Rule of Venue Transfer: If venue and PJ were proper where case was filed, then after transfer, still apply
substantive law of that original forum. If venue and/or PJ weren’t proper where case was filed, then after
transfer, apply substantive law of new forum.

What Law to Apply in Federal Court?: Prior to 1938
What procedural law applies in fed cts?
      Ans: until 1938, state proc. for cases at law, fed proc. for cases in equity
What substantive law applies in fed cts?
      Swift, 1842:
      ● For claims created by federal codified law, federal law (supremacy clause, article VI).
      ● For claims created by state codified law, state law & state ct interpretation (b/c of RDA)
      ● For common law claims (contracts, torts, property), fed cts developed “general” substantive CL
      w/o reference to any state’s decisions (b/c Swift ct interpreted “laws of several states” in RDA to
      mean only codified state law)
           Result in each state there were 2 bodies of CL: state ct’s (pro indiv) and fed ct’s (pro
              biz). This led to notorious forum shopping & unequal distr. of the laws (ex: Taxicab case
              where D reincorporated themselves in another state to get diversity jxdn in order to get into
              fed ct & avoid the state’s antimonopoly laws)

Rules of Decision Act (RDA), 28 USC § 1652 (§ 34 of Fed Judiciary Act):
The laws of the several states, except where the Constitution or treaties of the United States or Acts of
Congress otherwise require or provide, shall be regarded as rules of decision in [trials at common
law/civil actions] in the courts of the United States, in cases where they apply.

Rules Enabling Act (REA), 28 USC § 2072 [An Act of Congress]:
The Supreme Court shall have the power to prescribe, by general rules, the forms of process, writs,
pleadings, and motions, and the practice and procedure of the district courts of the United States in civil
actions. Such rules shall not abridge, enlarge or modify any substantive right and shall preserve the
right of trial by jury…

What Law to Apply in Federal Court?: 1938
Procedural law?


                                                       8
       FRCP (1938): merge law & equity into one set of rules (rule 2) to get procedure out of the way so
      case can be decided on the merits
Substantive law?
      Erie (1938): For common law claims, fed ct must follow law of state where it sits.
       Const. re-interpretation of RDA (formerly § 34) limits fed ct authority to applying fed. codified
      law; leaves common law substantive matters to states.
       Only type of fed ct CL allowed is “interstitial lawmaking” (ie filling gaps in codified law)

Which State’s Law Applies?
Decide if federal or state law applies to issue:
    If state law applies, use law of state where Dist Ct located (state A).
               If state where Dist Ct located (state A) applies law of another state (state B)
               to a Q, apply state B’s law just as state courts in state A would do.
               Typical conflicts rules include:
               - if tort action, then follow law of state where tort “occurred”.
               - if K action, then follow choice of law provision, or law of state where K “formed”.

***Analysis when Fed Law Conflicts w/ State Law***
                                           Erie-Hanna Flowchart:
                            In a federal court case adjudicating a state law claim,
      where a federal rule covers the same issue a state rule covers, to decide which law to apply, ask:

 Does U.S. Constitution apply?      If yes       Apply it. Why? Supremacy clause.
     If no

                                                 If constitutional, apply it. Why? Rules of Decision Act (RDA)
 Does a federal statute apply?      If yes
                                                 excludes Acts of Congress, so Erie does not apply (Hanna).
     If no

                                                                                                                    If constitutional, apply
 Does a Fed.R.                     Is the Fed.R.Civ.P. consistent w/ Rules Enabling Act (ie                         it. Why? Fed.R.Civ.P.
                      If yes                                                                           If yes
 Civ.P. (a federal                 arguably procedural & does not alter a substantive rt)?                          consistent w/ REA is
 “Rule”) apply?                                                                                                     treated as Act of
                                                           If unclear whether it                                    Congress, so
                                                           alters substantive right,
   If no
                                                           apply factors


 Factors to determine whether the federal judge-made rule is “procedural” or “substantive”:

  Factors weighing in favor of finding the judge-made rule to be          Factors weighing in favor of finding the judge-made rule to be
       procedural, & thus requiring use of the federal rule:                      substantive, & thus requiring use of state rule:

- Essential to federal system (such as a fed Judge’s power to           - Interferes with a state law rule bound up with state
  control courtroom & litigation before him/her);                         substantive rts (ex: SoL);

- Relates only to litigation process;                                   - Regulates human behavior outside litigation process;

- Ex ante, unlikely to substantially affect outcome, & therefore        - Ex ante, likely to substantially affect outcome & therefore
  will not induce forum shopping between fed & state court;               encourages forum-shopping between fed & state court;

- Fed system’s interest in applying uniform fed procedure;

- Analogous to where Sup Ct has held fed procedure applies:             - Analogous to where Sup Ct has held state law applies:
 (jury rt, burden of pleading, discovery tools, rule 4 service of         (std of care, conflict of law rules, SoL, burden of proof,
process, venue transfers).                                          9     arbitration agreement).
                     If heavier                                                           If heavier


 Apply federal rule.                                              Apply state law (constitutions, statutes, enacted Rules,
 Why? Federal court power to control procedure in federal         common law rules). Why? Rules of Decision Act (RDA) as
 courts where not prohibited by Rules of Decision Act-Erie        interpreted in Erie requires federal courts to apply state
 doctrine-U.S. Constitution.                                      substantive law to claims created by state law.


***Preliminary Injunctions (PIs) and Temporary Restraining Orders (TROs)***
   1) Substantive Requirements for TROs and PIs on a sliding scale (Sullivan Test), P must show:
          Likelihood of successful on the merits (P must show that he can satisfy all of the elements
             for whatever substantive law he will be using in his case) - Sullivan
          That P will suffer irreparable harm w/o injunction (i.e. damages cannot fully compensate
             for the injury)
          Harm to adverse party from injunction is outweighed by harm to P w/o injunction
          Public interest favors the injunction
   2) Procedural Requirements for Injunctions and TROs are in Rule 65
          For a TRO w/o notice (ex parte), Rule 65(b):
                  i. Specific facts shown by affidavit or verified complaint (facts sworn to) must clearly
                     demonstrate that immediate and irreparable injury, loss, or damage will result to P
                     before adverse party can be heard in opposition
                 ii. P’s attorney must certify in writing the efforts, if any, made to give notice or why
                     notice should not be required
          For a PI, Rule 65(a):
                  i.   Must give notice
                 ii.   Can consolidate w/ trial, or use evidence from PI hearing at trial
          For both TRO and PI, Rule 65(c):
                  i.   P must provide security/bond (courts sets)
          For TRO, PI and permanent Injunction, Rule 65(d):
                  i.   Shall set forth the reasons for its issuance
                 ii.   Shall be specific in terms
                iii. Shall describe in reasonable detail, and not by reference, acts restrained
                iv.    Is binding only on parties, their officer, agents, servants, employees, and
                       attorneys, and persons in active concert or participation w/ them who receive
                       actual notice of TRO or PI order.
          In addition, must comply with all local rules
          Draft all paperwork (final TRO/PI) for the judge so all he has to do is sign. Include space
             for date and time, say that expires in 10 days
          Must provide notice to other party (afterwards, if ex parte TRO)
   3) Challenging TRO or PI
          Estopped party can move for dissolution immediately, but must give at least 2 days notice
             to P.
          Can argue why P doesn’t meet substantive requirements (likelihood of success etc)
          Argue that TRO/PI didn’t meet procedural requirements (invalid notice – Microsoft)
          Argue bond isn’t set high enough

***Pleadings and Rule 12 Motions***
    Complaint
                                                             10
1) Minimum substantive requirements for COMPLAINT under Rule 8 to give notice:
   1. identification of parties (Rule 10)
   2. short & plain statement of subject matter jurisdiction (Rule 8)
   3. short & plain statement of legal claim showing entitled to relief (Rule 8; Conley)
        Note: If causation is not obvious, P must plead how conduct of each D was a substantial
           factor in causing or prolonging the injury (Rule 11) – Bockrath
        Note: Always draft Complaint in clauses to force D to admit, deny etc to each factual
           allegation to make D give fair amount of info in the Answer (discovery value) - Zielinkski
   4. prayer for relief (Rule 8)
        Note: Must request a jury trial in writing if you want one – Rule 38
    Reasons for filing a “quick and dirty” complaint: don’t know exactly what happened yet (need
       discovery), must file before SoL runs
    Reasons for filing a detailed complaint: educate the judge, press release, adequate time to
       interview Ps
2) Special Pldg Requirements (Rule 9):
    Rule 9(b) in federal court (also true in CA court): Must state circumstances constituting fraud
       or mistake w/ particularity b/c fraud disfavored claim & mistake disfavored defense
    Rule 9(g) says must specifically state special (unexpected, unusual, or disfavored) damages
       b/c general allegations damages doesn’t put D on notice of the unexpected (e.g., increased
       blood pressure as result of slip & fall), and policy (1st Amend disfavors reputation damages in
       defamation case)
    To plead a securities fraud claim, by statute (PSLRA) must:
       1. allege specific false & misleading statements made by Ds, &
       2. state specific facts creating strong inference D acted knowingly or in reckless disregard for
           truth
        Note: disfavored C/A & high stakes litigation (potential large recovery & fear of strike
           suits justifies imposing cost of some pre-filing discovery on Ps).
    Expressio unuis est exclusion alterius (the expression of one implies the exclusion of others)
       means that Rule 9 specifies the only situations where there can be a heightened pleading
       standard – Leatherman, Swierkiewicz
3) Pleading format required by Rule 10:
   1. Caption w/ name of Court, parties, civil action #
   2. Numbered ¶s for facts/denials; separate ¶s Counts (C/As) & defenses
   3. Exhibits & adoptions by reference ok (ex: studies, incorporating prior paragraphs by reference)
4) Pleadings allowed under Rule 7:
    Complaint (OG, 3rd Party, Counter-claim, Cross-claim)
    Answer (to any Complaint)
    Reply (to Counter-claim)
5) CA code pleading (“notice plus”)
    all claims by parties other than P are called “Crossclaims”
    Attorney must sign every paper filed (analogous reasons and sanctions to Rule 11)
    D’s motion for demurrer (motion to dismiss for failure to state a claim), followed by P’s
       request for leave to amend the complaint = Rule 12 motion for a more definite statement
6) Good lawyering:
    state all claims or defenses: can plead in hypothetical or alternative (Rule 8e)-McCormick
    allege each & every element of legal theories
    allege some facts to support major elements of claims (not req’d for defenses)
                                                11
      educate Judge, opponent, & press about case
      tell a story, catch interest of Judge & press, catch settlement interest of opponent
7)   Bad lawyering:
      pleading too much, American Nurses (ex: P alleging facts of defense or D alleging facts of
         liability)
      allegations or denials can’t prove at trial (hurt credibility of attorney & case)
      allegations or denials w/o good faith & reas. basis after reas. Investigation, Bockrath (Rule 11)
8)   Service:
      Complaint must be served as per Rule 4 w/ summons or via waiver.
      All other papers (Answer, motions, etc.) served on attorneys as per Rule 5 to everybody
         involved in the case (an exception would be an ex parte application for a TRO)
    Rule 12
A.   Pre-Answer Rule 12(b) Motion to Dismiss, which delays Answer, may raise defenses of:
      lack SMJ - can raise at any other time as well - Rule 12(h)(3)
      lack PJ, improper venue, insuff process, or insuff service (use „em or lose „em defense-12(h))
         -if available, must put in pre-Answer motion, or, if no such motion, then in Answer (or
         amendment of right thereof) Rule 12(h)(1);
      failure to state a claim, or failure to join a Rule 19 necessary party also can be raised in any
       pleading, Motion for Judgment on Pleadings, or at trial - Rule 12(h)(2).
B.   Rule 12(e) Motion for More Definite Statement:
      must be raised pre-Answer b/c Complaint is too vague to answer;
      delays Answer until 10 days after denial of motion or new Complaint
C.   Omnibus Rule12(g) pre-Answer Motion Rule: must raise all available Rule 12 defenses/objections
     in 1st pre-Answer motion (efficiency rule).
D.   When to file a motion 2 dismiss: get rid of case w/o dealing with the facts, buy more time to file
     an Answer (Rule 12(a)(4)), throw P off, hope for a better judge etc
E.   When not to file: when D needs a witness (or other evidence) to be fresh, when D doesn’t want P
     to realize her error in the Complaint (and then revise it), when D wants to minimize costs and
     wasted time, if D likes the judge.
    Answer
A.   Minimum substantive requirements for ANSWER under Rule 8 to give notice:
     1. admit, deny, or state lack sufficient information to form a belief as to truth, of each & every
         factual averment in Complaint (failure to specifically deny = admit under Rule 8d, Zielinski)
          deny everything that you do not have a reasonable and good faith belief is true
          legal conclusions by P don’t require a response
          at the end of Answer, use a blanket denial, “D generally denies any factual allegations set
         forth in the Complaint which have not heretofore been expressly admitted or denied.”
     2. all affirmative defenses
     3. all waivable defenses unless already waived or asserted by prior Motion to Dismiss
     4. any counterclaims or crossclaims
B.   Special Matters requiring particularized pleading in Answer (Rule 9):
            (a) challenge to capacity to sue or be sued (ex: if D is a minor)
            (b) mistake or fraud as a defense
            (c) challenge to performance of conditions precedent
C.   Affirmative defenses: “avoidance” b/c avoids ordinary legal effect of claim, rather than
     challenging existence of elements of claim
     1. Types of defenses that are affirmative:
          disfavored for policy reasons

                                                 12
           better for D to prove: e.g., D has better access to evidence, or contrary rule would require P
            to prove a negative
         likely to cause unfair surprise, sandbagging, if D does not raise
         extrinsic to elements of P’s C/A (therefore D has burden of pleading them) - Gomez
     2. Rule 8c provides a list of affirmative defenses, but it’s not exhaustive
     3. The consequence of failing to plead an affirmative defense is that it’s WAIVED, so plead any
        defense that might be an affirmative defense (play it safe) – Ingraham
  D. Procedure: Answer is due w/in 20 days after service or w/in 60 days of waiver (Rule 12a1).
     Answer must be served on P (Rule 5d)

***Amending the Pleadings***
  A. Rule 15 - liberal rules for amending pleadings (so case can be decided on the merits):
     standard: “leave shall be freely given when justice so requires,” Foman v. Davis
     leave given unless: undue delay (when you knew facts all along), bad faith, dilatory motive,
     undue prejudice to opposing party, or futility of amendment
  B. Rule 15(a)
      can amend pleading freely once - Complaint if before Answer & Answer (w/ no CC) if w/in 20
     days
      if answer has a CC, P gets for freebee for both the Complaint and the Answer to the CC.
      can amend later by written consent of adverse party or by leave of court (motion for leave to file
     an amended pleading)
      response to amended pleading is due w/in longer of original time or 10 days
  C. Rule 15(b)
      if an issue outside pleadings is tried w/o objection, it’s treated as if it was in the pleadings
      can amend pleadings to conform to evidence, but not necessary
      if objection raised, standard: amend pleading freely when helps get merits presented, unless
     prejudices opponent (but court can cure prejudice via continuance)
          Note: when there’s a pretrial order, Rule 16(e) limits amending only to “prevent manifest
          injustice” – stricter standard
  D. Rule 15(c)
      amendment of pleading relates back to date of original pleading:
          (1) when permitted by the SoL law (of state law in diversity case); or
          (2) when new claim or defense arose from same conduct, transaction or occurrence
          Barcume: new claim based on same events relates back; new facts regarding same events
          relate back; new claim based on new events does not relate back.
           Key to relation-back: whether original pleading put opponent on notice of new claim.
          (3) Mistaken identity scenario: can change party against whom claim asserted if the claim
          arose from same conduct, transaction or occurrence & w/in time period of Rule 4(m) (120 days
          of filing original Complaint) & the new party:
              (A) received notice so will not be prejudiced by having to defend &
              (B) knew or should have known of mistaken identity.
     Note: if w/in SoL, amendment doesn’t need to relate back to be valid – new claim based on new
     facts is ok & new D w/o prior notice of suit is ok, if meet Foman v. Davis standard
     Note: if SoL would still be up even if you related back, then can’t amend

***Policing the Pleadings***
  A. Rule 11(a): all pleadings and motions must be signed by the attorney.


                                                  13
  B. Rule 11(b): by signing, filing, or later advocating papers submitted to court, you certify…1) to
     best of (subjective good faith) knowledge & belief formed after 2) (objectively) reasonable inquiry
     under the circumstances:
     (1) no improper purpose (such as to harass, delay, or increase cost)
     (2) warranted by existing law or non-frivolous argument to change law (note: must identify
     any contrary controlling legal authority on point) – Saltany (sanctioned for filing a frivolous
     argument to use lawsuit as a protest), Frantz (sanctioned for filing a legally impossible claim),
     Reimer (sanctioned for not putting PJ motion in 1st substantive filing)
     (3) factual allegations supported by evidence or, if specifically so identified, likely to be
     supported by evidence after reasonable opportunity for investigation/discovery (when you’re not
     yet sure, you have to identify those particular allegations that you don’t yet have evidentiary
     support for) – Business Guides (sanctioned for not doing a reas. Investigation b4 filing for a
     TRO), Kraemer (sanctions reversed b/c investigation was reas. Under the circumstances)
     (4) factual denials warranted by evidence, or, if specifically so identified, reasonably based on
     lack of info or belief. You can deny an allegation if you believe that it’s not true but lack info to
     be sure that it’s not true (lower standard to deny then to assert a factual allegation).
     Note: if after you file your pleadings and later find out that one of your allegations / defenses has
     no basis, you don’t have to amend the pleading to withdraw it, but you cannot later advocate that
     position.
  C. Rule 11(c) sanctions:
     (1) By:
           (A) separate motion describing conduct; served but not filed if withdrawn or corrected w/in
           21 days (no exception for bad publicity); may award prevailing (either) party fees & costs
           of motion; firm generally jointly responsible for attorney violation; or
           (B) sua sponte order to show cause why conduct does not violate Rule 11.
     (2) Nature/Amount: can sanction attorney &/or party, but sufficient only to deter behavior:
            non$ (e.g., strike violating paper, reprimand, refer to Bar counsel)
            $ penalty to court
            if on motion, reasonable attorney fees & expenses caused by violation
           But no $ sanction:
           (A) against represented party for existing or change of law claim; or
           (B) on sua sponte show cause order after voluntary dismissal.
     (3) Order: must describe conduct & basis for sanction (so there’s a clear record for appeal)
  D. Rule 11(d): not applicable to discovery (go to Rules 26(g) & 37)

***Joinder of Claims, Counterclaims & Crossclaims***
  A. Rule 18: Joinder of Claims & Remedies:
      Rule 18(a): party may join as many claims as has against opponent
      Rule 18(b): party may join as many remedies as may have against opponent
     Note: joinder of claims is encouraged for efficiency and fairness (preclusion)
     Note: only limit to Rule 18 is SMJ. Must have SMJ (fed Q, diversity, suppJ, other) over every
     claim in a case. 1367(b) doesn’t stop any claims by D, but it does sometimes stop claims by P.
  B. Rule 42(b): Court can order separate trial of any claim(s) or issue(s).
  C. res judicata (claim preclusion): final judgment bars claimant from another suit based on same
     transact or occur; thus such claims must be joined or are barred (hence Rule 13a)
  D. federal court: counterclaim = claim by a D against a P & cross-claim = claim by a D against
     another D or P against another P
     state court: cross-complaint = claim by a D against a P or against another D, or by a P against
     another P
                                                  14
  E. Rule 13: Counterclaims & Cross-Claims
      Rule 13(a) compulsory counterclaim (rule preclusion): Must assert counterclaim arising from
        same transact or occur
              unless: 1) counterclaim doesn’t exist when pleading served or
                       2) counterclaim requires unobtainable 3rd parties or
                       3) claim is pending elsewhere or
                       4) suit was under in rem jurisd & pleader is asserting no counterclaims (if D files
                         a CC, then all compulsory CC’s must be brought)
        Note: Appletree test for when claims are compulsory (i.e. same t or o) – when the essential
        facts of the 2 claims are so logically related that considerations of fairness and efficiency
        dictate that they be tried together (similar test in 1367).
      Rule 13(b) permissive counterclaim: may assert counterclaim not from same transact or occur
        (as long as there’s indep SMJ, or it’s about same property as trunk claim)
      Rule 13(e) matured counterclaim: if D has a CC that matures later, he can add it via supp
        pleadings w/ the ct’s permission under 15(d).
      Rule 13(f) can add counterclaim omitted due to oversight, inadvertence, or excusable neglect
        under 15(a).
      Rule 13(g) cross-claim: May assert cross-claim only if arising from same t or o, or relating to
        the same property (once a cross-claim is asserted, all of Rule 13 kicks in).
            Once a cross-claim is asserted:
             must add related claims to avoid claim preclusion;
             may add unrelated claims under Rule 18
             counterclaim in response compulsory if arising from same t or o
             counterclaim in response permissive if unrelated
      Rule 13(h): when asserting a counterclaim or cross-claim to party already in the suit, can add
        3rd parties as co-Ds to those claims
      Rule 13(i) separate trials & j-ments ok, even on supp claim after trunk claim decided
        (discretionary SMJ under 1367(c))
      Note: when D files a CC, P must file a reply and it is governed by all pleading rules (8, 11, 10,
        9, 12, 13)
      Note: when 2 P’s are trying to make cross-claims against each-other, they cannot if they’re not
        diverse (would fail to meet 1367b)
      Note: Compulsory CC’s & Xclaims not barred by 1367b have Supp J. Xclaims joined to a CC
        & Xclaims barred by 1367b don’t have Supp J. Permissive CC’s only have Supp J if they are
        permissive b/c they are one of the 4 compulsory CC exceptions.

***Joinder of Parties***
  A. Rule 20: Permissive Joinder
     20(a): ● all persons may join in one action as Ps if:
              1. assert right arising from same trans or occur or series thereof &
              2. any question of law or fact common to all Ps will arise in action.
            ● all persons may be joined as Ds if:
              1. right asserted against them arising from same trans or occur or series thereof &
              2. any question of law or fact common to all Ds will arise in action.
     20(b): Court can order separate trials or otherwise prevent delay, expense or prejudice.
  B. Rule 21: Court can sever any claim & proceed with it separately.
  C. Rule 42: Court can order separate trials on claims or issues. Court can consolidate cases
     involving a common Q of law or fact.

                                                   15
  D. Rule 14 Impleader: claim against a 3rdparty who “is or may be liable” derivatively (e.g.,
     contribution, indemnity, or breach of warranty)
      D (becomes 3rdpartyP) vs. 3rdpartyD who may be liable to D for P’s claim against D
      P vs. 3rdpartyD who may be liable to P for D’s counterclaim against P
      3rdpartyD vs. “4th”party who may be liable for 3rdpartyP’s claim against 3rdpartyD etc
      “is or may be liable” derivatively = will arise from same t or o & always be w/in Supp J
         (except if barred by 1367b)
      Must serve a 3rdpartyComplaint as per Rule 4, but remember 4(k)(1)(B) bulge rule for PJ.
      If later than 10 days from Answer/Reply to Counterclaim, need leave of court.
     Note: not compulsory, so can be brought as separate action (ex: joint tortfeasors aren’t required to
     be brought together in a single lawsuit – Temple)
     Note: derivatively liable means that if D isn’t liable, then neither is 3rd party D (can’t implead a
     party you think is at fault instead of you – Toberman)
     Note: state law will determine whether D has an indemnity or contribution claim (tort and K law)
     Note: after 3rd party D is served, he can use all rule 12 motions and rule 13 kicks in

***Discovery***
  A. Discovery Devices:
      Informal (what you must do to meet Rule 11 requirements): explore scene & things, public
        records, info & records from your client & 3rd parties, non-testifying experts; can do informal
        discovery on nonparties
      Initial Disclosures: persons w/ knowledge & documents or things in support of your case
        (except impeach), damages calculations w/ documents, insurance liability coverage for the
        claim (helps settlement negotiations)
      Testifying Expert Disclosure: identify all; disclose report for specially retained/employed
      Pretrial Disclosures: witnesses, depo transcripts, exhibits (except impeach)
      Depositions: sworn testimony, usually oral, can depose nonparties
      Interrogatories: sworn written answers, only parties
      Requests 4 Production Docs or Things or Entry on Land: can serve on nonparties
      Physical/Mental Exam: need court order, only parties
      Requests 4 Admission: only parties
  B. Need court order or consent of parties (as thru 26(f) discovery plan) for:
      Depositions (Rules 30 & 31):        > 10 depositions per side
                                           > 7 hrs per deposition
                                           deposing any person twice
      Interrogatories (Rule 33):          > 25 interrogatories by ea. party on ea. other party
      Any formal discovery prior to Rule 26(f) discovery planning conference
  C. Discovery Scope & Limits – Rule 26
      (b)(1):      scope: -relevant to any claim or defense (as defined by the pleadings), or,
                           by order of court for good cause, relevant to subject matter of suit;
                           - need not be admissible if reas. calc. to lead to discovery admis. evid.
                    limit: - privileged matter not discoverable except as per privilege & work product
                             rules
      (b)(2):      quantity & quality limits: Court shall impose limits if:
          (i)       unreasonably cumulative or duplicative, or obtainable from more convenient, less
                    burdensome, or less expensive source
          (ii)      party has already had ample opportunity to get the discovery
          (iii)     burden or expense outweighs likely benefit, considering stakes involved
                                                  16
           Note: if you feel that the other party falls into one of these limited categories, you can object to
            the discovery in your response and not answer. You can also file a motion with the court for a
            protective order to stop the discovery (but first obligated to try and work things out), you could
            also just sit on your hands and not answer it and wait for the other side to file a motion to
            compel (you to answer it).
  D.   Work product protection: (only covers product, not facts) - Rule 26 (b)(3):
        opinion w.p: may not discover impressions, opinions, or theories of attny, unless extreme need
            & hardship:
            -probably never in case for which work product was created;
            -case-by-case determination whether protection overcome in subsequent litigation where
            opinions in work product are at issue.
        ordinary work product: may discover other material prepared in anticipation of litigation only
            if:
           (1) substantial need &
           (2) undue hardship to obtain by other means.
        witness statements: but any person may obtain his or her own written, adopted, recorded or
            transcribed stmt.
  E.   Attorney-client privilege (only applies to communication, not facts)
       1. communication
       2. between client (or potential client) & lawyer (or lawyer’s representative)
       3. w/o presence of others
       4. for purpose of obtaining legal advice (NOT for purpose of committing crime or tort)
            Note: privilege belongs to client, who can waive it.
  F.   Attorney-client privilege for corporation: communication btwn attorney & employee is:
       1. needed for attorney to give legal advice to corp.
        2. about info w/in scope of employee’s employment
        3. understood by employee to be for purpose of legal advice to corporation
        4. understood by employee to be confidential
  G.   other privileges: doctor-patient, priest-penitent, husband-wife, etc.
  H.   Work Product & attorney-client waived when:
        3rd party given access to communication or product
        relationship between attorney & client put at issue
        necessary to protect 3rd parties from danger (child abuse)
        necessary to prevent fraud upon court/perjury
  I.   Privilege log - Rule 26(b)(5):
        must produce list of docs or things withheld as work product or privileged
        w/ descriptions demonstrating applicability of work product or privilege,
        & one who asserts work product or privilege bears burden if challenged

***Right to a Jury Trial***
  A. When the 7th Amendment civil jury right applies in federal court
      Even if no Const. right, Congress can give you statutory right to jury trial.
      Decide by issue, not by case (some issues/relief go to jury, some to judge).
      Test for whether Const. right = historical test (Curtis v. Loether):
        If C/A existed prior to 1791 & was tried in law courts, jury right applies.
        As to C/A not existing prior to 1791, decide using factors:
                   •by analogy to matters tried prior to 1791 in law courts or
                   •by reference to type of relief, &/or statutory characterization of relief:
                   typically damages cases are legal, thus jury right applies, but:
                                                  17
                           • backpay as restitution is equitable, awarded by Judge
                           • some C/As existing in 1791 w/o monetary relief were at law
                           • jury decides whether to impose civil penalties but judge decides amount
             Markman - For issues arising w/in C/A to which jury right applies, decide by historical
                test; But if no history on point, use functional analysis test:
                           Who is better decision-maker for issue?
                        •Jury better for credibility & community standards
                        •Judge better for complicated application of law to facts, & where uniformity in
                          law’s treatment of issue is important
    B. Mechanics of Civil Jury in Federal Court (FRCivP 38, 39, 47 & 48):
       • easily waivable: must demand in pldgs or w/in 10 days last pldg directed to issue
       • any party can demand jury, & cannot w/d demand w/o consent other parties
       • minimum of 6 jurors is waivable DP Const. reqm’t (Rules permit between 6 & 12 jurors, w/ no
         alternates (so start w/ more than 6), & Rules require unanimity, unless parties consent to fewer
        &/or non-unanimous)

***Summary Judgment (SJ)***
    A. Rule 56
    B. Why? Efficiency, eliminate claims & defenses that would not survive a Motion for JMOL
       (educate judge about the case, help encourage settlement in weak cases, the off chance that it will
       be granted or that it will be granted in part, also to force P to show their hand if D hasn’t done
       much discovery yet).
    C. Why not? Even if D has a good SJ claim, they might not make it so that P’s weak argument might
       help affect the jury when they assess damages. Also, so that P doesn’t get organized for trial by
       preparing for the motion for SJ (especially good if P’s counsel is busy).
    D. Partial SJ: as to a single claim or defense, or as to liability but not all relief
    E. Supporting material that judge examines (cold record): pleadings, depos, interrogatory answers,
       admissions, & affidavits (w/ docs)
         affidavits:       must be on personal knowledge & show competent to testify
                           must demonstrate facts as would be admissible in evidence
                           can explain why need more time or discovery to get evidence, Rule 56(f)
         Note: If Motion for SJ supported, nonmovant must submit evidence of specific facts showing
         genuine issue, or a Rule 56(f) affidavit.
    F. Standard: no genuine issue of material fact & movant entitled to j-ment as a matter of law
        material fact: essential to element of claim or defense
        genuine issue: actual (obj.) & good faith (subj.) controversy; dispute reas. jury could resolve I
           in favor of nonmovant
        Note: judge must use cold record to figure out all reasonable inferences that a jury could find
    G. Burden of Proof
      Movant D’s burden of production:                  Nonmovant P’s burden of production:
C      either:                     burden met        evid. of specific facts      burden met    SJ
E      (a) evid. negating any                        demonstrating reasonable                   denied
L      element of P’s case or                        jury could find in P’s favor
O      (b) demonstration of how in                   (varies w/ P’s burden of
                                                                                             SJ may be
T      discovery P has failed to                     proof at trial; more than    not met    granted (in
E      come forward with                             scintilla)
                                                                                             trial court’s
X      sufficient evid. to support
                                                                                             discretion)
       an element of P’s claim                      SJ
                                    not met
                                                    denied
                                                    18
***Judgment as a Matter of Law (JMOL)***
  A. Rule 50
  B. Motion for JMOL: at trial after party has been fully heard on issue, before case sent to jury.
      Note: You cannot rely on evidence you anticipate opponent will put on to survive a JMOL
         motion.
  C. Renewed JMOL motion: after jury verdict, must have filed earlier JMOL motion (fiction that it’s
     the renewed decision of earlier JMOL motion to avoid 7th Amend issue).
      Motion for JMOL at close P‟s case-in-chief tests whether P met burden of producing
         sufficient evidence for a reasonable jury to find for P on each element of P’s claim (means you
         can’t rely on D presenting evidence that you’re going to use).
      Motion for JMOL at close D‟s case-in-chief tests same as to D’s affirmative defenses (rare).
      Motion for JMOL at close of evidence & renewed Motion for JMOL: taking all reasonable
         inferences in favor of non-movant but uncontradicted, unimpeached evidence from
         disinterested wits in favor of movant (judge can consider this evidence as true), no reasonable
         juror could find for non-movant (same standard as for summary j-ment).
      Note: the judge waits for the jury verdict before making a JMOL so that in case the JMOL is
         reversed on appeal, the case doesn’t have to be retried.
      Note: new rule 50 - if you make a JMOL at any point at trial you can renew it after the jury
         verdict
      Note: a gap in the evidence always exists in a discrimination case b/c there’s always a gap
         btwn someone’s thoughts and their actions (Reeves).
      Note: If there’s a really big gap in the evidence, there’s a tension created btwn the 7th
         amendment where we want the jury to decide the case versus the 5th amendment of due
         process where we’re asking the jury to make a decision they can’t possibility make. If the gap
         is b/c one side isn’t bringing forth the evidence, can make a negative inference (jury).
  D. Summary - Trial if Played on a Football Field (SJ and JMOL standards)
      Each element of P’s case is a ball, all of which start at (a).
      To meet burden of proof to obtain verdict & j-ment, in ordinary civil case P must get every
         ball past 50 yard preponderance line (b); or P must get them to (c) area to meet clear &
         convincing.
      A presumption gets party across 50 yd line, but if rebutted puts ball back into play.
      If any ball ends up at 50 yard line (d), or to P’s side of field, j-ment for D.
      To meet P’s burden of production (to survive Mo4SJ or Mo4JMOL), must get every ball to
         point at which jury, drawing all reasonable inferences in P’s favor, could conclude that each is
         past 50 yard line

***Jury Instructions & Verdicts***
  A. Rules 49 & 51
  B. Instructions: must be given to counsel prior to closing argument; must object so Court has
     opportunity to cure before case goes to jury.
  C. General verdict: black box decision in favor of one party, w/ damages figures
  D. General verdict w/ interrogatories: black box plus answers to individual Qs.
      If answers consistent but irreconcilable conflict w/ verdict (or damages), Court may enter
         judgment on answers, or send back or grant new trial.
      If answers inconsistent & irreconcilable conflict between verdict & an answer, Court must
         send back or grant new trial.
                                                  19
  E. Special verdict: answers to individual Qs, from which Court determines general verdict. If
     irreconcilable conflict among answers, Court must send back, grant new trial, or eliminate
     conflicting answers & enter judgment based on remaining answers.
  F. Note: Court must attempt to reconcile jury answers “by exegesis if necessary” (i.e. if there is a
     general verdict or the jury awards damages, then the court must reconcile all inconsistent answers
     with that verdict if possible even if interpretation of jury’s intent is required) - Gallick

***Motion for a New Trial or Mistrial***
  A. Rules 59 & 61
  B. Bases: “substantial justice” requires new trial or mistrial meaning error is likely to actually
     prejudice moving party, plus:
      errors in jury’s evaluation of evidence: verdict or damage award contrary to clear weight
        evidence (unlike JMOL, Court an weigh credibility) or
      errors in trial process: •admission of improper evidence over movant’s objection,
                                •jury, witness, or opposing counsel misconduct (Sanders),
                                •prejudicial happenstance (if an accident happened that’s prejudicial), or
                                •improper instruction to which movant timely objected.
  C. Note re: juror misconduct:
      anything internal to deliberations inadmissible for any purpose (including drug/alcohol use)
      only outside influence on jury can impeach verdict (e.g., outsider in deliberations, or juror
        “indep research” - conducting experiments, visiting site, interviewing witnesses, consulting
        Bible)
  D. Procedure: must file w/in 10 days of j-ment (use-it-or-lose-it)
  E. Appeal: if granted, not a final order, so cannot appeal until after new trial




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