Civil Pleading Spring 2007 Weston I. JOINDER A. Joinder of Claims 1. Rule 13 – By Defendant a. R13(a) Compulsory Counterclaims – a pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the same transaction or occurrence and doesn’t require for its adjudication the presence of 3rd parties who cannot acquire jurisdiction. 1) Counter-claim = back against the party who has claimed against him may be any defending party (not just the original D) who can assert counterclaims against a party who has claimed against him. 2) Must assert it or lost the claim b. R13(b) Permissive Counterclaims – A pleading may state as a counterclaim any claim against an opposing party (if they claimed against you) that is the subject matter of the opposing party’s claim 1) May be completely unrelated claims Court will usually order separate trials. 2) Will not fall under § 1367(a) b/c unrelated to main claim c. R13(g) Cross-Claims – arising out of the same transaction or occurrence, by one party against a co-party. BUT once a proper cross claim is asserted, you can add unrelated claims under R18(a). 1) Should always satisfy § 1367(a) b/c under R13(g), they must arise from the same set of events as the main claim d. R13(h) – can bring in additional party on counterclaim as long as it meets requirements of R20(a), i.e. same transaction or occurrence & common question of law or fact. 2. Rule 18(a) – Joinder of Claims – A party asserting a claim to relief as an original claim, counterclaim, cross-claim, or third-party claim, may join, either as independent or as alternate claims, as many claims, legal, equitable, or maritime, as the party has against an opposing party. a. Permits joinder, but does not compel it b. Although claim preclusion may require a plaintiff to bring related claims and plaintiff’s own interest is often served by joinder of all claims he has against defendant. c. applies to any party seeking relief against another party, not just the original Plaintiff. 3. Rule 42(b) – Separate Trials – Court may order a separate trial of any claim, cross-claim, counterclaim or third-party claim, or of any separate issue: a. For convenience
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b. to avoid prejudice c. when separate trials will be conducive to expedition & economy RULE: A permissive counterclaim must have an independent jurisdictional basis while it is generally accepted that a compulsory counterclaim falls within the ancillary jurisdiction of the federal courts even if it would ordinarily be a matter for state court consideration. Plant v. Blazer – Issue = whether claim = compulsory or permissive. Four possible tests to determine whether they arise from the same transaction: 1. Are the issues of fact and law raised by the claim and counterclaim largely the same? 2. Would res judicata bar a subsequent suit on defendant’s claim absent the compulsory counterclaim rule? 3. Will substantially the same evidence support or refute the plaintiff’s claim as well as defendant’s counterclaim? 4. Is there any logical relation b/w the claim & counterclaim? **This is the test the court uses. Counterclaim on underlying debt = compulsory * if a claim is compulsory: - it must be brought at the risk of losing it - If it is brought, supp. Jur. Extends to cover it a. 4th Circuit test – Same law/effect (pg. 739 - Whigham v. Beneficial Finance Co.) b. 3rd Circuit Test – Would separate trials involve duplication of effort? (pg. 741 – Whigham v. Beneficial Finance Co.) B. Permissive Joinder of Parties 1. Rule 20 – Permissive Joinder – All persons may join in one action as plaintiffs if (1) they assert any right to relief jointly, severally, or in the alternative in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and (2) if any questions of law or fact common to all these persons will arise in the action. a. Doesn’t require that P’s seek recovery for exactly the same injury or on joint interest. They can also proceed on the same theory of liability but for different damages. b. Authorizes suits by multiple Ps against multiple Ds c. Allows joinder even though relief is sough against Ds “in the alternative” d. Applies only to joinder of parties by original Ps e. Once P has sued D under R20, she can add a completely unrelated claim under R18(a) 2. Rule 42(a) – Consolidation – Court may order joint hearing or trial of any or all matters in issue of an action involving common question of law or fact. Court may order all the actions consolidated RULE: Determination of whether plaintiffs are asserting claims arising out
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of the same transaction or occurrence is interpreted broadly. A company-wide policy of designed to discriminate against blacks in employment = same transaction or occurrence. Mosley v. GM – 10 plaintiffs each alleged discrimination against GM … Court held that trials could be joined for liability phase. 3. Rule 14(a) – When Defendant may bring in 3rd party – at any time after the commencement of the action, a defending party as a 3rd party plaintiff, may serve a summons and complaint upon a person not a party to the action who is or may be liable to the 3rd party plaintiff for all or part of the plaintiff’s claim against the 3rd party plaintiff. The plaintiff may assert any claim against the 3rd party defendant arising out of the transaction or occurrence that is the subject matter of the plaintiff’s claim against the 3rd party plaintiff to which 3rd party Defendant shall assert any defenses, counterclaims and cross claims. Derivative liability RULE: You can only implead a secondarily liable defendant (derivative liability); you cannot bring in someone as an alternative target of liability. a. In tort, 3rd parties can be impleaded for indemnity / contribution in states that have joint and several liability. b. Impleader claim treated like an original suit for pleading, service c. 3rd party D can file a counterclaim against 3rd party P & may implead more parties under R14 d. P & 3rd party D may assert claims against each other if they relate to the same transaction or occurrence as the main claim e. Automatic (w/o leave of court) w/in 10 days of answering complaint but Court always has discretion f. Impleading 3rd party D doesn’t affect Court’s JD over original claim, but still need SMJ over impleader claim g. Usually Supp. Jur. Covers a proper impleader claim h. 3rd party disregarded for venue & D may implead multiple 3rd party Ds, claiming either joint or alternate liability. Price v. CTB, Inc. – Farmer sues provider of poultry house equipment and Latco for damages, but the problem is it turned out the nails were defective … Latco cannot bring in the nail manufacturer b/c they did not agree to indemnify Latco and there is thus no derivative liability. If Latco can’t implead ITW (nail manuf.) then they can still assert that ITW is the source of the problem in their denial. 4. When determining whether to permit a 3rd party complaint after 10 days of filing the answer, the court considers the following: a. Whether movant deliberately delayed or was derelict in filing the motion b. Whether impleading would unduly delay or complicate the trial c. whether impleading would prejudice the 3rd party D d. Whether the 3rd party complaint states a claim upon which relief
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can be granted. C. Supplemental Jurisdiction 1. Rule 13 2. Rule 14 3. 28 U.S.C. § 1367 – District Courts have supplemental jurisdiction over all other claims (includes addt’l claims by original P as well as crossand counterclaims) so related to the action within which such original jurisdiction that they form part of the same case or controversy. Includes claims that involve joinder or intervention. If jurisdiction is based solely on 1332, no supp. Jur. Over claims by plaintiffs against persons made parties under Rule 14, 19, 20, or 24. District courts can decline jurisdiction if (1) claim raises novel or complex state law issue (2) claim substantially predominates over claim w/ original jurisdiction (3) district court has dismissed all claims that had original jurisdiction (4) in exceptional circumstances, there are compelling reasons to decline jurisdiction. a. 1367(b) bars some claims against persons made parties under R14(a), but only such claims brought by Plaintiffs b. A party not meeting A/C can join a claim w/ SMJ but at least one original claim must meet A/C c. If A & B sue C & D, C & D are made parties by R20 + Ps are trying to assert claims against them. A & B could bring 1 suit against C and 1 suit against D, but no Supplemental Jurisdiction if they’re brought together. BUT Court would likely consolidate under R42 anyway. d. State courts also have concurrent jurisdiction over Federal Claims unless Congress makes Federal jurisdiction exclusive Gibbs v. UMW – If a plaintiff’s claims are such that he would ordinarily be expected to try them all in one judicial proceeding, then, assuming substantiality of the federal issues, there is power in federal courts to hear the whole. a. Claims that arise out of the same nucleus of operative facts as the proper federal claim Owen Equipment v. Kroger – (codifies 1367(b) )Wife of man killed by electric power lines cannot sue the impleaded party b/c they could not have originally been sued in federal court since it violated diversity. *** Neither the convenience of litigants nor considerations of judicial economy can suffice to justify extension of the doctrine of ancillary jurisdiction to a plaintiff’s cause of action against a citizen of the same state in a diversity case. This is b/c ancillary jurisdiction typically covers defendants’ claims when they’re hailed into court … plaintiff’s can’t complain b/c they chose the forum. 1) When impleaded party (R14) asserts a claim against P, P can’t counterclaim unless there is independent jurisdiction, although court may blink at language to
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achieve a more sensible result, although court declined to do so in Guaranteed Systems. D. Compulsory Joinder of Parties 1. Rule 19(a) – Persons to be joined if Feasible - Person whose joinder will not deprive court of jurisdiction shall be joined as party if: (1) can’t get complete relief in that person’s absence (2) the person claims an interest relating to the subject of the action & is so situated that cont’ing w/o the person may (i) as a practical matter impair or impede the persons ability to protect that interest or (ii) leave any persons already subject to a substantial risk of incurring double, multiple or otherwise inconsistent obligations by reason of the claimed interest. If person hasn’t been joined, court shall order he/she be made a party. Temple v. Synthes – Rule 19 does not require the most efficient possible packaging of lawsuits. Nor does it require the joinder of anyone who might be affected by precedent. A tortfeasor with the usual ‘joint-and-several’ liability is merely a permissive party to an action against another with like liability. Rule 19(b) – Determination by Court whenever Joinder Not Feasible – If a person cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable. Factors to consider are: (1) to what extent a judgment rendered in person’s absence might be prejudicial to the person or those already parties (2) the extent to which prejudice can be lessened or avoided (3) Whether a judgment rendered in the person’s absence will be adequate (4) Whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder Helzberg Diamonds v. Valley West – D filed motion to dismiss for failure to join indispensable party over which court had no personal jurisdiction. Court says that a person does not become indispensable in an action to determine rights under a contract simply b/c that person’s rights or obligations under an entirely separate contract will be affected by the result of the action. Since the party chose not to consent to jurisdiction or intervene, their interests must be sufficient protected. 2. Rule 17 – Parties Plaintiff and Defendant; Capacity – No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement, joinder or substitution of the real party in interest. Capacity to sue or be sued is determined by the law of his or her domicile. (for corporation = the law of the state in which it is organized.) E. Intervention: Permissive and Mandatory 1. Rule 24(a) – Intervention of Right – anyone can intervene when a statute confers an unconditional right to intervene, or when applicant
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claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties. Must be allowed to join. RULE: You cannot intervene just b/c you disagree with what is going on in a lawsuit, but if you can show that your interests are not being represented adequately then the court must allow you to intervene. It is enough that representation MAY BE inadequate. NRDC v. United States Nuclear Regulatory Commission – Plaintiff is trying to stop Defendant from issuing licenses to operate uranium mills without first issuing environmental reports. Two parties waiting for a license wanted to intervene after a party that had recently been granted a license intervened. Their interests were not adequately represented by the first party. Court said intervention should be allowed. 2. Rule 24(b) – Permissive Intervention - anyone may be permitted to intervene when a statute confers a conditional right to or when an applicant’s claim or defense and the main action have a question of law or fact in common. In exercising its discretion, the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties. May be allowed to join. Lower standard than 24(a). RULE: There is no duty to intervene. Even if you know about a lawsuit, you won’t be bound by it. Martin v. Wilkes – Can’t be bound by another lawsuit, but as a practical matter, stare decisis will bind that party anyway. Reverse discrimination against white firefighters in Alabama. Those in the suit share with the court the responsibility for joining the absentees. * After this case, Congress enacted 42 U.S.C. § 2000e-2(n), which prohibits a collateral challenge to a consent decree in a civil rights case complaining of employment discrimination if the challenger is “a person who, prior to the entry of the decree had (i) actual notice of the proposed judgment and (ii) a rx opportunity to present objections to such judgment or order, or (iii) a person whose interests were adequately represented in the first action” 3. Rule 24(c) – Procedure – Person intervening shall serve a motion upon the parties stating the grounds and accompany a pleading setting forth the claim or defense for which intervention is sought. F. Interpleader 1. Rule 22 – Interpleader – Persons having claims against P may be joined as Ds and required to interplead when their claims are such that the P is or may be exposed to double or multiple liability. It is doesn’t matter if the claims or titles upon which claims depend don’t have a common origin or are not identical but are adverse to and independent of one another, or that P avers that P is not liable in whole or in part to any or all claimants. D exposed to similar liability may obtain
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interpleader by way of cross-claim or counterclaim. This is in addition to and in no way supersedes or limits the statutes. Stakeholder can name both claimants as Ds or if a claimant sues him, he can bring the other claimant(s) in as defendants. 2. 28 U.S.C. § 1335 – district courts shall have original jurisdiction of all interpleader claims w/ $500 or more if: (1) 2 or more adverse claimants, of diverse citizenship, are claiming to be entitled to money or property and (2) P has deposited such money or property into the registry of the court 3. 28 U.S.C. § 1397 – any civil action of interpleader may be brought in judicial district in which one or more of the claimants reside 4. 28 U.S.C. § 2361 – District Court may issue process for all claimants and enter its order restraining them from instituting or prosecuting any proceeding affecting the property. Issue Subject Matter Jurisdiction Statutory Rule 22
Personal Jurisdiction; Service of process Venue
Diversity Minimal diversity; determined as b/w claimaints - § 1339 Amount $500 in controversy Nationwide service of process - § 2361 Residence of one or more claimants – § 1397
Complete diversity; stakeholder on one side and claimants on the other $75,000+ Need personal jurisdiction; service under Rule 4 Residence of any claimants (if all from one state); district where property is; district where any claimant found if no other basis for venue - § 1391 Only basis is provision in 28 U.S.C. § 2283 for stay “where necessary in aid of injunction”
Injunctions
Statutory Authority for injunctions (28 U.S.C. § 2361)
Cohen v. The Republic of the Phillippines – State Farm v. Tashire (handout) – G. Class Actions 1. Statutory Requirements a. Rule 23 – (A) 1 or more members of a class may sue or be sued as representative parties on behalf of all only if the following are satisfied: • numerosity (indiv. Joinder would be impractical) • commonality (common question of law or fact) • typicality (look at claim of representative P member) • adequate representation (By rep. and by lawyer) (B) Action may be maintained as a class action if:
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* the prosecution of separate actions would create risks of: * Inconsistent or varying adjudications establishing incompatible standards of conduct for the party opposing the class * Adjudication with respect to the class will be dispositive of interests of other members not party • Party opposing the class has acted or refused to act on grounds generally applicable to the class (Injunction) • Court finds that questions of law or fact common to members of class predominate and class action is superior to available methods for fair and efficient adjudication of the controversy. (Damages) Factors are: o Interest of members of the classin individually controlling prosecution or defense of separate actions o Extent and nature of any litigation concerning the controversy already commenced by or against members of the class o Desirability of concentrating the litigation of the claims in the particular forum o Difficulties likely to be encountered in the management of a class action Communities for Equity v. Michigan High School – Class is defined as “all present and future female students who participated in or were deterred from participating in sports b/c of discriminatory action.” Heaven v. Trust Co. - Plaintiff alleged that D failed to comply with strict disclosure requirements in the consumer leasing act. She sought to certify a class based on all those who had leased under similar conditions. Then D counterclaimed for debts. Under Rule 23(b)(3)(A) – this would force the court to make multiple simultaneous fact finding determinations. Not certified b/c of the difficulty in management of the lawsuit. b. Rule 23(c) Notice – Eisen – Rule 23(d) Role of the Court in a class action – what orders it can make Rule 23(e) out of fear of collusion b/w P and D’s counsel, the Court has to approve any settlement as a neutral arbiter looking out for the best interests of the parties. 2. Constitutional Foundations / Notice RULE: A judgment in a class action binds absentee members of a class only if they have been adequately represented. Hansberry v. Lee – Although Hansberry wasn’t part of the prior suit, he can be held to the ruling b/c it was a class action, so he has to show that the covenant was unconstitutional (i.e. a violation of due process b/c he wasn’t adequately represented). Court says that
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Hansberrys weren’t members of the class b/c they oppose the covenant where the class wanted to enforce the covenant. Eisen v. Carlisle & Jacquelin – Rule 23(c) codified – For any class certified under R23(b)(1) of (2) the court may direct appropriate notice to the class. For any class certified under R 23(b)(3), the court MUST direct to class members the best notice practicable under the circumstances, including individual notice to all members who can be identified through rx effort. Must concisely & clearly state in plain, easily understood language (p must pay initially for service): * nature of the action * definition of the class certified * Class claims, issues, or defenses * that a class member may enter an appearance through counsel if the member wants * that court will exclude from class any member who requests exclusion, giving deadline and binding effect of judgment 3. Jurisdiction and Settlement of Class Actions RULE: A forum state may exercise jurisdiction over the claim of an absent class-action plaintiff, even though that plaintiff may not possess the minimum contacts with the forum which would support PJ over a defendant. Phillips Petroleum v. Shutts – Notice must at least notice (reasonably calculated to apprise) opportunity to be heard and participate and the opportunity to opt out. The standard for holding class members subject to jurisdiction in a state in which they’ve never been isn’t the same standard for defendants. They can opt out. a. CAFA 2005 – Class Action Fairness Act – 1) Minimal diversity 2) A/C $5 Million + 3) § 1332 (d)(6) Class members can aggregate claims 4) Discretionary refusal – if it is more a state issue court can remand. 5) Mandatory refusal – if over 2/3 of P are from the state, Court has to remand to state court. 6) decline JD if class involves public official or less than 100 members of the class b. Settlement of Class Actions and the “Settlement Class” 1) Fees – Rule 23(h) court may award rx attorney fes and nontaxable costs authorized by law or by agreement of parties. 2) Damages and Injunctive Relief – Making sure that class recovery ends up in hands of class members: A) Fluid Class Recovery – in class consisting of
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past consumers that dealt w/ a company, damages would be distributed to future consumers through a rate reduction lasting long enough to exhaust the discovery. Deterrence. B) Costs of notice – who should bear the costs? 3) Settlement and Dismissal RULE: Settlement-only certifications – Court should give extra attention to make sure the class is not defined overly broadly. The class members are not all adequately represented b/c those with present claims will not fight for the best result for those with claims in the future. Settlement classes can be certified. See Hanlon v. Chrysler Corp. Amchem Products v. Windsor – Asbestos case – party reached a settlement in one day. Class was defined as “people who was or some day may be, adversely affected by past exposure to asbestos products manufactured by one or more of the companies”. c. § 1407 – MultiDistrict Litigation – when civil actions involving 1 or more common questions of fact are pending in different districts, actions may be transferred to any district for coordinated or consolidated pretrial proceedings. (i.e. asbestos case) d. § 1453 – Removal of Class Actions – may be removed to a district court in accordance w/ 1446 (except that 1 year limit doesn’t apply). May be removed by any D w/o consent of all Ds. DISCOVERY I. Relevance and Privilege – A. Rule 26(f) – Conference of Parties; Planning for Discovery 1. Parties must, as soon as practicable and at least 21 days before scheduling conference is held or scheduling order is due under Rule 16(b), meet and confer a. to consider the nature and basis of their claims and defenses and possibilities for prompt settlement or resolution of the case, b. to make or arrange for disclosures required by Rule 26(a)(1) & c. to develop a proposed discovery plan that indicates the parties’ views and proposals concerning: 1) what changes should be made in the timing, form or requirement for disclosures under R26(a) 2) subjects on which discovery may be needed, when discovery should be completed, whether discovery should be conducted in phases or limited to / focused on particular issues 3) what changes should be made in limitations on discovery
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imposed under these rules or by local rules, & what other limitations should be imposed 4) any other orders that should be entered by the court under Rule 26(c) or under R 16(b) and (c). B. Rule 26(b) – Discovery Scope and Limits – Relevance 1. In General – Parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. **By show of Good Cause, court can order discovery of any matter relevant to the subject matter. **relevant info need not be admissible at the trial if discovery appears rx calculated to lead to the discovery of admissible evidence. • Relevant means that the information tends to prove or disprove something the law says matters 2. Limits - Court can limit discovery that is (1) unreasonably cumulative or duplicative, obtainable from another source that is more convenient, less burdensome, or less expensive, (2) the party seeking discovery has had ample opportunity to discover the info sought or (3) the burden or expense of the proposed discovery outweigh its likely benefit. C. Davis v. Precoat Metals – Suggests a broad interpretation of relevant. P is allowed discovery regarding other employee’s complaints of discrimination against Defendant. D. Steffan v. Cheney – homosexual conduct is not discoverable b/c it’s not relevant since Steffan was discharged for being a stated homosexual. SO relevance can be a limit. E. Privilege – Law of evidence creates privileges – protections of info from certain sources. Privileges are not meant to block the underlying facts. 1. 5th Amendment – Self Incrimination a) can be waived if you start to testify 2. Attorney – Client (ACP) a) Communication b/w attorney and client made in confidence for the purpose of obtaining legal advice b) Upjohn v. United States – Corporation’s ACP extended beyond the “control group” (top management)to employees at all levels. 3. Doctor – Patient 4. Psychotherapist – Patient 5. Marital Spouse a) only applies during the marriage, not after 6. Priest & Penitent 7. Teacher & Pupil 8. Miscellaneous Limits: a) Trade Secret b) Government Secrets / Reports
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c) information before a grand jury d) Deliberative process of government e) atty. Work product has a qualified privilege f) Reporter’s privilege to keep sources confidential II. Procedure and Methods A. Rule 26(a) – Required Disclosures – penalty = exclusion from evidence 1. Initial Disclosures – Party must provide w/o discovery request, a) Name of each person likely to have discoverable information that disclosing party may use to support its claims or defenses, unless solely for impeachment, identifying the subjects of the information b) copy or description of all docs, data compilations and tangible things that are in the party’s possession and that they may use to support its claims or defenses, unless solely for impeachment c) computation of any category of damages claimed by disclosing party, making available for inspection docs (not privileged) on which the computation is based d) any insurance agreement, the policy which may satisfy part or all of the judgment *** Must be made w/in 14 days of R26(f) conference unless otherwise agreed. *** Party joined after R26(f) Conference must produce w/in 30 days of being served. 2. Testifying Expert Testimony – Party must disclose a) identity along w/ a b) written report prepared and signed by the witness, containing a 1) complete statement of all opinions to be expressed and the basis and reasons therefore 2) data or info considered in forming opinions 3) exhibits to be used 4) qualifications of expert, including list of publications authored in last 10 years, compensation to be paid for study and testimony, & listing of other cases in which he has testified in last 4 years. c) Shall be made at least 90 days before trial date B. Asking Questions: Interrogatories and Depositions 1. Rule 28 – Persons Before Whom Depositions May Be Taken – Depositions shall be taken before an officer authorized to administer oaths by US laws or of the place where the examination is held. In foreign countries, depositions may be taken a) pursuant to any applicable treaty or convention b) pursuant to a letter of request (whether or not captioned a letter rogatory) c) on notice before a person authorized to administer oaths in the place where the examination is held
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d) before a person commissioned by the court, and a person so commissioned shall have the power by virtue of the commission to administer any necessary oath and take testimony. 2. Rule 29 – Discovery Procedure – parties may by written stipulation a) provide that depositions may be taken before any person, in any manner b) modify other procedures governing or limitations placed on discovery 3. Rule 30 – Depositions Upon Oral Examination – a) Party must obtain leave of court if person to be examined is confined in prison or if, w/o written stipulation of parties, 1) proposed deposition would result in more than 10 depositions (taken by a side i.e. P, D, 3rd party D) 2) person to be examined has already been deposed 3) party seeks deposition before time specified in 26(d) b) Must give rx notice in writing before deposing stating: 1) time and place of deposition 2) name and address of each person to be examined 3) method by which testimony shall be recorded c) Can depose a public or private corporation or a partnership or association or governmental agency notice must state w/ rx particularity the matters on which exam is requested, then organization shall designate one or more officers, directors or managing agents d) can take a deposition by telephone or other electronic means e) Objection during deposition must be stated concisely and in a non-argumentative / non-suggestive manner. A person may instruct deponent not to answer only when necessary to preserve a privilege, to enforce a limitation directed by the court… f) Deposition is limited to one day of 7 hours BUT court must allow more time if needed for a fair exam of the deponent or if deposition is impeded or delayed 4. Rule 31 – Depositions Upon Written Questions – within 14 days after the notice and written questions are served, a party may serve cross questions upon all other parties. Within 7 days after being served w/ cross questions, a party may serve redirect questions upon all other parties. w/in 7 days of redirect questions, a party may serve recross questions upon all other parties. ** Rarely used procedure. 7. Rule 32 – Use of Depositions in Court Proceedings – any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness or for any other purpose permitted by FR of Evidence. 8. Rule 33 – Interrogatories to Parties – (A) a party may serve 25 interrogatories on any other party each. Leave to serve extra interrogatories shall be granted to extent consistent w/ R 26(b)(2). (B)
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Each shall be answered separately, fully in writing under oath. Party can object, stating reasons for it and answering to extent question is not objectionable. Answers should be signed by person making them and objections signed by attorney making them. All grounds for objection shall be stated with specificity. Any ground not stated in a timely objection is waived unless party’s failure to object is excused by the court for good cause shown. (C) May relate to any matter which can be inquired into under R26(b)(1). ** Non-party witnesses may be deposed through subpoena but need not answer written interrogatories. ** Must answer or object to every interrogatory ** Can get leave of court for more than 25 interrogatories C. Examining Things and People 1. Rule 34 – Production of Documents & Things & Entry Upon Land – a party may request production (permitting them to inspect and copy) any designated documents, including: a. writings b. Drawings c. graphs d. Charts e. photographs f. Phono-records g. other data compilations from which info can be obtained or to inspect and copy, test, or sample and tangible things which constitute or contain matters w/in scope of R26(b) and in control of party or permit entry upon designated land ** Request shall specify rx time, place & manner of inspecting ** non-party can be compelled to produce docs and things or to submit to an inspection ** Number of requests not limited by the Rules. producing party must produce docs as they are kept in the usual course of business or shall organize & label them to correspond w/ categories in request. 2. Rule 35 – Physical and Mental Examination of Persons – a. Order for Examination – when mental or physical condition of a party, or a person in custody or under the legal control of a party (≠ non-party), (1) is in controversy, the court may order the party to submit to an examination by a suitably licensed or certified examiner. Motion may only be made (2) for good cause shown and upon notice to the party specifying time, place, manner, conditions, and scope of exam. b. Report of Examiner – upon request, party ordering exam shall deliver a copy of detailed written report of examiner setting out his findings, including results of all tests made, diagnoses and conclusions w/ reports of all earlier examinations of the same condition. After deliver, party ordering exam shall be entitled
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upon request a like report of any examination, previously or thereafter made, of same condition 1) Injured party can request copy of physician’s report to other party 2) requesting party entitled to report copy that injured party gets from her physician D. Requests for Admission – Rule 36 – makes some evidence irrelevant by taking an issue out of controversy. A party may request admission of the truth of any matters w/in scope of R 26(b)(1) that relate to statements or opinions of fact or the application of law to fact. Party must admit, deny or partially admit, noting which part. Can’t cite lack of information as reason for failure to admit or deny unless they have made a rx inquiry and still can’t answer. “any matter admitted is conclusively established” and any matter not timely answered is deemed admitted, although some courts do not hold parties to that. Any admission can’t be used against the party in another action (i.e. doesn’t bind beyond present lawsuit). Don’t need to admit something just b/c 1 person says it’s true. E. Ensuring Compliance - Rule 37 – Courts may impose punishments ranging from awards of expenses to dismissals of an entire case or entry of default judgment. III. Privacy Considerations A. Protective Order – Rule 26(C) – upon motion by party from whom discovery is sought and certification that they in good faith conferred or attempted to confer w/ other affected parties to resolve dispute w/o court action, and for good cause shown, court may make an order which justice requires to protect a party or person from annoyance, embarrassment, oppression or undue burden or expense, including one or more of the following: 1. that disclosure or discovery not be had 2. that it may be had only on specified terms and conditions 3. that it may be had only by a different method 4. that certain matters may not be inquired into 5. that discovery be conducted w/ no one present except persons designated by the court 6. that a deposition, after being sealed, be opened only by court order 7. That trade secret or other confidential research, development or commercial information not be revealed or be revealed only in a designated way 8. that parties simultaneously file docs in sealed envelopes to be opened as directed by the court. B. Stalnaker v. Kmart – D in sexual harassment lawsuit objects to deposition of 4 women not parties about their encounters w/ an employee accused of sexual harassment on grounds that it would be embarrassing … Court says that P can interrogate them w/ respect to the employee and allows the depositions b/c they are relevant. C. Schlagelhauf v. Holder – Defendant can be ordered to undergo an exam even
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though he was not a party to the cross-complaint which put his health at issue because he is still a party to the lawsuit. Non-party can’t be ordered to undergo exam even through a subpoena. • In controversy and “good cause” requirements are not met by mere conclusory allegations of pleadings or mere relevance to the case … it requires an affirmative showing that each condition is really and genuinely in controversy and that good cause exists for ordering each particular examination. D. Motion to Compel – Rule 37 (a) – a party, upon rx notice to other parties and all persons affected thereby, may apply for an order compelling disclosure or discovery. Must include a certification that movant in good faith conferred or attempted to confer w/ party not making the disclosure. (includes evasive or incomplete disclosure, answer, or response as well). 1. If motion is granted, Court shall, after giving opp. To be heard, make party pay rx expenses incurred in making the motion unless the objection or nondisclosure was substantially justified or that other circumstances make an award of expenses unjust. 2. If motion denied, Court may enter protective order and shall, after affording an opportunity to be heard, require moving party to pay party who opposed the motion rx expenses incurred in opposing the motion, unless motion was substantially justified or other circumstances make award of expenses unjust. 3. Failure to comply sanctions. IV. Privilege and Trial Preparation A. Rule 26(b)(3) – Qualified Privilege – Fact work Product: party may obtain discovery of docs and tangible things otherwise discoverable under 26(b)(1) and prepared in anticipation of litigation or for trial only upon a showing that the party seeking discovery 1. has a substantial need of the materials in preparation of their case & 2. that the party is unable w/o undue hardship to obtain the substantial equivalent of the materials by other means. ** Absolute Privilege – Opinion Work Product: Court shall protect against disclosure of mental impressions, conclusions, opinions or legal theories of an attorney or other representative of a party Hickman v. Taylor – Later codified in R26(b)(3). Underlying facts are discoverable but the statements are subject to a qualified privilege. Applies to non-lawyers, such as insurance adjusters & investigators doesn’t extend to docs prepared in the ordinary course of business V. Experts A. Categories of Experts: 1. Trial / Testifying Experts 2. Consulting (non-testifying) retained in anticipation of litigation 3. Fact / Actor / Viewer - Participant expert 4. Not retained for the litigation B. Rule 26(b)(4) – Trial Preparation: Experts –
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1. any person identified as an expert whose opinions may be presented at Trial (testifying expert) may be deposed. If a report is required under 26(a)(2)(B), the deposition must be after the report is provided. 2. Consulting Experts must answer depositions or interrogatories only as provided in 35(b) or upon a showing of exceptional circumstances under which it is impracticable for party seeking discovery to obtain facts or opinions on the same subject by other means. 3. Unless manifest injustice would result, court shall require that party seeking discovery pay the expert a rx fee for time spent in responding to discovery under this section C. Thompson v. The Haskell Co – D can see psychologist report from when P (claiming that sexual harassment reduced her to a severely depressed mental state) saw the doctor shortly after being fired b/c D would not be able to get similar info any other way. Doctor was consulted in connection w/ litigation, so this is an exceptional circumstances. D. Chiquita Int’l v. Bolero – Where a party has equal opportunity to access information but fails to do so, a substantial hardship is not created. Inspections that are routine / conducted in the ordinary course of business are not in anticipation of litigation and thus not subject to privilege of attorney work product. VI. Compliance, Controlling Abuse and Sanctions A. Rule 26(g) – every disclosure must be signed certifying that to best of signer’s knowledge and belief, formed after a rx inquiry, the disclosure is complete and correct. Every request, response or objection must be: 1. Consistent w/ rules and warranted by existing law or good faith argument for its extension, modification or reversal of law 2. not interposed for any improper purpose (harass, cause unnecessary delay or needlessly increase cost of litigation) 3. Not unrx or unduly burdensome or expensive, given needs of the case, the discovery already had in the case, the amount in controversy and importance of issues at stake in litigation if request, response or objection is not signed, it shall be stricken unless fixed promptly. If a certification is made in violation of the rule, court, upon a motion or its own initiative, shall impose upon the party or the person certifying or both appropriate sanctions, which may include an order to pay the amount of rx expenses incurred b/c of violation, including rx attorney’s fee. B. Rule 37 – Sanctions – 1. Party may apply for an order compelling disclosure a. Motion must have certification of attempt to confer in good faith b. evasive or incomplete = failure to disclose, answer or respond c. If motion granted, court shall require party / attorney or both whose conduct necessitated the motion to pay rx expenses incurred in making the motion d. if motion denied, court may enter a protective order and shall require party / attorney or both to pay rx expenses incurred in opposing motion, unless court finds motion was substantially
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justified or that other circumstances make an award of expenses unjust. 2. Failure to Comply w/ Order – a. failure to answer could be considered in contempt of court b. failure to obey an order, court may make such orders as are just 1) designated facts taken as established for party obtaining order 2) refusing to allow disobedient party to support or oppose designated claims or defenses 3) striking out pleadings or parts thereof, dismissing action or part of it, rendering a judgment by default against disobedient party C. Thompson v. Dep’t. Housing – Parties debated whether recovery request was overly broad … Judge did not rule on motion to compel, urging the parties to first make a good faith effort to reach common ground on the dispute. D. Poole v. Textron, Inc. – P filed motions for sanctions on 6 instances of discovery abuse. D’s responses or objections were not substantially justified. P granted attorney’s fees and imposed sanctions on D. E. Under R26(g), counsel must make rx effort to assure that all info and docs are responsive to the discovery demand… what is reasonable is matter for Court to decide on the totality of the circumstances… factors: 1. number and complexity of the issues 2. location, nature, number and availability of potentially relevant witnesses or documents 3. extent of past working relationships b/w attorney and client, particularly in related litigation 4. time available to conduct an investigation VII. E – Discovery A. Duty to investigate and disclose is same as R26(b)(1) B. Scope of discovery is same C. Limits: 1. unduly burdensome or expensive 2. Costa llocation or shifting 3. form of production 4. document / file retention / preservation / destruction or spoilation PRETRIAL DISPOSITION / RESOLUTION WITHOUT TRIAL I. DEFAULT JUDGMENT II. FAILURE TO PROSECUTE: INVOLUNTARY DISMISSAL III. VOLUNTARY DISMISSAL IV. SETTLEMENT / ADR V. CURTAILED ADJUDICATION: SUMMARY JUDGMENT A. RULE 56 – Summary Judgment (a) For P – P may, at any time after the expiration of 20 days from
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commencement of action or after service of an MSJ by the adverse party, move with or w/o supporting affidavits for a summary judgment in the party’s favor upon all or any party thereof. (b) For D – May at any time move w or w/o supporting affidavits for a summary judgment in party’s favor to all or any part thereof. (c) Motion shall be served at least 10 days before the time fixed for the hearing. Adverse party prior to the day of hearing may serve opposing affidavits. Judgment shall be given if pleadings, depositions, answers to interrogatories and admissions on file, together w/ any affidavits show that there is no genuine issue as to any material fact and that moving party is entitled to judgment as a matter of law. (e) Supporting and opposing affidavits shall be made, setting forth facts made on personal knowledge that would be admissible in evidence. Should be attached to sworn or certified copies of all papers. Adverse party may not rest upon mere allegations or denials of the pleading, but its response by affidavits or otherwise, must set forth specific facts showing that there is a genuine issue for trial. Otherwise, summary judgment shall be entered against adverse party. ** Judge gives deference to non-moving party when deciding an MSJ B. Moving party must show that there is no genuine issue of material fact (GIMF). Ways that D can show a genuine issue = (1) negate an element in P’s case w/ specific proof (i.e. I never signed the promissory note)/ establish an affirmative defense or (2) Show that P has an absence of proof. ** Form of evidence must be admissible at trial (i.e. sworn testimony). If evidence is not in proper form, it’s not sufficient to create a material issue of fact. Celotex v. Catrett – woman claiming asbestos exposure from D as cause of death of her husband didn’t present evidence in admissible form and therefore summary judgment for D was proper. Moving party has burden of production to show that they meet all elements of the claim. RULE: non-moving party must squarely meet the evidentiary issues raised by the moving parties. Has to create more than metaphysical doubt on credibility. Bias v. Advantage Int’l – Rebuttal testimony either must come from persons familiar w/ particular events to which D’s witnesses testified or must otherwise cast more than metaphysical doubt on the credibility of that testimony. IDENTIFYING THE TRIER: JUDGE OR JURY TRIAL I. RIGHT TO JURY TRIAL A. 28 USC US CONST. Amend, VII – In Suits at common law, where the value in controversy shall exceed $20, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise reexamined in any Court of the US, than according to the rules of the Common Law. B. RULE 38 – (b) Any party may demand jury trial by (1) serving upon other parties a demand in writing at any time after commencement of action and not later than 10 days after service of last pleading directed to such issue, and (2) filing and demand as required by Rule 5(d). Such demand may be indorsed upon a pleading of the party. (c) In demand, a party may specify the issues
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they want tried by the jury, otherwise it’s assumed that all issues so triable will be before the jury. BUT any other party may demand w/in 10 days that any other or all of the issues in fact be tried by a jury. (d) Failure to serve and file demand as required = waiver of right to jury. Demand for jury may not be withdrawn w/o consent of parties. C. Judges – 1. Federal system only permits 1 peremptory challenge of a judge per case. 28 USC §§ 144 and 455 – two categories for disqualifying a judge: (1) specific guidelines (i.e. judge has served as a lawyer in the matter in controversy or in which he or his family has a financial interest), OR (2) “any justice, judge or magistrate of US shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned” so recusal statutes only protect parties from biased judges, not bad ones. 2. Judges are assigned randomly, but you can pick juries 3. Judges decide questions of law D. RULE: Two Prong Historical Test of Right: (1) Nature of Action – analog of claim to 1791 and (2) Nature of remedy – relief sought analog If claim would have been brought in Courts of Common Law, there is a right to a jury trial. If c/a would have been in a Court of Equity, there is no right to a Jury trial. Chauffeurs, Teamsters v. Terry – Second inquiry is more important. In this case, back pay is not an equitable relief as restitution b/c they are seeking monetary relief in wages and benefits that they would have received had the Union processed the employee’s grievances properly. Legal remedy jury. 1. Money wrongfully withheld would be restitution / equitable. 2. Replevin and ejectment are legal remedies even though specific performance and injunction = equitable remedies. 3. 7th Amendment doesn’t apply to states, so there is no federal constitutional requirement that States give right of jury trial in any civil case. most state courts have proved substantially less enthusiastic about jury trials than the federal courts. 4. No right to Jury on preliminary questions or procedures in a trial (i.e. interpleader, joinder, etc… E. Congress can expand right to Jury, but can’t contract it. Even if a c/a was traditionally heard by a Judge, Congress can grant the right to a Jury. But there is no right to a Judge trial, even in cases traditionally equitable. 1. BUT patent cases used to be tried by jury, Court used proper analysis to find that it should be tried by a judge driven by practical considerations. Markman case - looked at relative skills of judge and jury in construing technical data. said there was no right to a jury trial for these causes of action. Question of whether this was decided pursuant to the historical test or whether it was a decision made out of pure functional considerations. Emphasized judge's role in interpreting documents 2. Administrative Proceedings – Atlas v. OSHR - no right to a jury trial
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b/c it's not within Article III since it's an admin. Proceeding. & when Congress creates public rights and refers them to an administrative agency, there is not a right to a jury trial. 3. Bankruptcy – Granfinancieria - Constitution allows Congress to establish a bankruptcy regime. Trustee v. Debtor - right to jury trial when a party is suing a debtor for private rights. (Analogous to a CL action for fraud), BUT when a creditor files a claim against an estate (trustee), there is no jury trial right F. RULE: When legal and equitable issues are raised in one case, there is still a jury trial right as to the legal issues Amoco Oil v. Torcomian – Court held that main claim and counterclaim are legal, so D has a right to a jury trial on those claims Beacon Theatres - In a case w/ overlapping equitable and legal claims and counterclaims, a party has a right to a jury trial on any legal claims. Jury trial precedes any hearing on the equitable claim and Jury's findings control on any common factual issues. TRIAL I. PROFESSIONAL CONTROL OF LAY TRIERS, LIMITS OF RATIONAL INFERENCE AND BURDENS A. RULE: The party with the burden of persuasion must show that their version of the facts is MORE likely. Reid v. San Pedro, LA & Salt Lake RR – cow went through gate or whole in the fence when run over by train? P didn’t prove case by preponderance of evidence, so Judge took case from jury. There must be a conflict in substantial evidence to create a jury question. B. Burdens of Proof 1. Persuasion – extent to which a trier of fact must be convinced of some proposition in order to render a verdict for the party who bears it. a. preponderance of the evidence / more probable than not / more likely than not jury can find for P if it finds the material fact merely probable b. clear and convincing evidence in fraud cases and will contests 2. Production – requires party to produce, to find and present evidence from which a rational trier of fact could conclude some proposition of material fact. a. so party w/ BOP can lose before trial if she fails to demonstrate, among facts uncovered by investigation and discovery, sufficient evidence to allow a rational trier of fact to find in her favor. (Celotex) II. CONTROLLING JURIES BEFORE THE VERDICT: JMOL (DIRECTED VERDICT), INSTRUCTIONS AND INCLUSIONS A. Rule 50(a) – Judgment as a Matter of Law – if during trial by jury a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a rx jury to find for that party on that issue, Court may determine the issue against that party and grant a motion for judgment as a matter of law. Motions for judgment as a matter of law may be made at any time before
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submission of the case to the jury… shall specify the judgment sought and the facts on which the moving party is entitled to the judgment. B. Penn. RR v. Chamberlain – When there is a direct conflict of testimony upon a matter of fact, the question must be left for the jury to determine, w/o regard to the number of witnesses upon either side but the conflict must be about FACT, not INFERENCES. P did not carry BOP b/c there were 2 sets of inconsistent inferences both equally likely. III. CONTROLLING JURIES AFTER THE VERDICT: JNOV, NEW TRIAL; JURY AS A “BLACK BOX” A. Rule 50(b) – RJMOL / JNOV – If for any reason, court doesn’t grant motion for JMOL made at the close of all the evidence, court is considered to have submitted the action to the jury subject to the court’s later deciding the legal questions raised by the motion. Movant may renew its request for JMOL by filing a motion no later than 10 days after entry of judgment & may alternatively request new trial or join a motion for a new trial under R59. B. Rule 59 – New Trial – may be granted either upon motion by party or sua sponte. (1) Flawed Procedures (juror misconduct, error in admitting evidence, lawyer has made an impermissible argument to the jury, erroneous jury instructions given) or (2) Flawed Verdict – (verdict was against the clear weight of the evidence, or verdict tells the judge that the jury either misunderstood or ignored the instructions) 1. New Trial Order is not appealable. 2. SC said that appellate court can enter judgment for D w/o remanding 3. When Judge reduces damages awarded by jury (remittitur), P must get a choice b/w a new trial and accepting reduced compensatory damages P can’t later appeal the lower damages C. Lind v. Schenley Industries – where no clear error has been introduced into the trial, the Judge substitutes his judgment of the facts and the credibility of the witnesses for that of the jury closer degree of scrutiny and supervision by appellate court. When jury easily understood the subject matter, their verdict was not against the weight of the evidence. D. Peterson v. Wilson – inadmissibility of juror testimony re: deliberations to impeach jury verdict; error to grant new trial based on jury misunderstandings of instructions. APPEAL A. What is appealable? 1. Only “Final Judgments” – rulings that end the case. 28 USC § 1291 2. Exceptions: a. 28 USC § 1292(a) – orders relating to injunctions b. 28 USC § 1292(b) – where district court certifies the issue involves a controlling question of law where there is a substantial ground for difference of opinion, appeals court agrees c. Rule 54(b) – Judgment on Multiple claims involving multiple
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parties d. Collateral Orders – an important order separable from the merits which completely resolved the issue, effectively unreviewable if must wait for FJ e. Extraordinary writs 1) Mandamus: (“We Order”) – orders trial judge to enforce a legal right/ duty 2) Prohibition: stops trial judge from enforcing an order. B. Standards of review on Appeal 1. Question of law – de novo review 2. Judge Trials – Rule 52 – findings of fact (clearly erroneous) 3. Jury Trials – JMOL standard; legal sufficiency 4. Rulings w/in Court discretion (discovery, new trial): abuse of discretion RESPECT FOR JUDGMENT I. CLAIM PRECLUSION (Res Judicata) A. Precluding the “same” claim. Frier v. City of Vandalia – Martino – B. Between the “same” parties C. After a Final Judgment “on the merits” D. Opportunity to Litigate II. ISSUE PRECLUSION (Collateral Estoppel) A. Same Issue B. An issue “actually litigated and determined” Illinois Central Gulf Railroad v. Parks – C. An issue “essential to the Judgment”
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