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Sample Waiver of Service of Summons Michigan Divorce

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									                             Civil Procedure Buss Fall 2002
                                 Thekla Hansen-Young

I. General Scope & Forms of Civil Action

Rule 1: Scope and Purpose of Rules
FRCP govern the procedure in the US district courts in all civil suits, whether they are
cases at law, in equity, or in admiralty. They shall be construed and administered to
secure the just, speedy, and inexpensive determination of every action.
Notes: Just, Speedy, and Inexpensive often pulls the interpretation of rules in different
directions and the rules don’t define how these factors should be balanced.

Rule 2: One Form of Action
This rule consolidated cases at law and in equity.

II. Pleading
Old Procedural Systems: Law Courts & Chancery Courts
Cases at law:
    - Courts had limited jurisdiction
    - Common law excelled in defining the dispute between parties because parties had
        to lay out the characteristics of the complaint to get it into the Royal Courts.
        Common law had established many writs to explicitly define the legal issues –
        had to fit the form pleading of the writ without any second chances.
    - Primitive method for gathering factual information
    - Unable to handle disputes involving more than two parties
    - There were 6 defenses that defendant could set forth only one of either:
            o Dilatory pleas (delay or derail the case, not addressing merits)
                      jurisdiction (not here),
                      pleas in suspension (not now),
                      pleas in abatement (defect in the pleading – not like this), OR
            o Peremptory pleas (addressing the merits):
                      Demurrer: agree on facts, disputes on the law – case goes to judge
                      Traverse: dispute the facts, agree on the law – case goes to fact-
                      Pleas in confession and avoidance: concede facts and law, but not
                         responsible because…
    - Pleading was all you got before trial – there was no discovery or way to develop
    - Judges decided issues of law and juries decided facts – there were other fact
        finding methods too, such as ordeal, oath, helpers, etc.
    - Parties could not give testimony and could not compel witnesses to testify.
    - The only kind of relief available was monetary.
Cases in Chancery
    - Parties were not bound by forms in their pleadings and could go into great detail –
        no writs, but lots of claims and counter-claims.
   -   Dealt with substantive claims not dealt with by writs and common law courts.
   -   Extensive deposition practice before trial and written depositions for discovery.
   -   Not clear lines between trial and pretrial processes because evidence was gathered
       over time.
   - Compelled testimony on paper and under oath.
   - Relief for monetary or injunctive damages.
   - Everything was less adversarial, but took more time.
Both courts required plaintiffs to state the facts. The struggle to make pleading clear,
simple, defined, and still leave room for complicated disputes drove the reformation
process that produced our system.

Modern Procedural Systems: Code & Notice Pleading
Code Pleading
   - Just the facts – no evidence, no legal conclusions.
   - Facts are tied to the law and various elements of facts are needed to map onto law
       and create a right of relief. Tried to get away from technicalities of common law
           o Typically there was a duty, it was violated, the violation affected P, P
                suffered damage – claim for relief.
   - Case: Gillespie v. Goodyear
           o The plaintiff alleged too vaguely and only in legal conclusions what
                happened. “complaint states no facts upon which these legal conclusions
                may be predicated…” and therefore the demurrer was granted but the
                plaintiff was given leave to amend her complaint.
   - Point of pleading is not to figure out what happened, but to determine whether or
       not if true, there would be a claim.
   - System would not want pleadings to become affidavits because usually don’t have
       enough evidence at the time.
   - Judge’s personal opinion about whether or not the facts are true might rule into
       the decision on whether or not substantive law supports the claim.
   - There are problems with the fact/conclusion distinction and also on the other end
       people may plead too much detail.
Notice Pleading
Federal Rules:
   - Broad notice pleading that doesn’t distinguish between fact and legal conclusions
       (which aren’t always allowed). Not as technical as code pleading and just meant
       to provide enough information to the defendant and the court.

Rule 3: Commencement of Action
Civil Action is commenced by filing a complaint with the court.
Notes: Filing is the date on which action commences. Complaint must be filed before
service. Plaintiff has 120 days to service summons after filing [4(m)]

Service of Process
Rule 4: Summons
4(a) Form: The summons must contain the signature of the clerk and the seal of
the court, identify the court and the parties, be directed to the defendants, and
state the name and address of plaintiff’s attorney. It must also state the time
within the defendant must appear and defend and notify the defendant of that
failure to do so will result in default judgment and relief demanded in the
4(b) Issuance: After filing the complaint, the plaintiff can get the clerk to sign
and seal the summons if it is found to be correctly written. Multiple summons for
multiple defendants.
4(c) Service with Complaint; by whom made:
         1. Summons shall be served with the complaint.
         2. Summons can be given by anyone who is not a party and is at least 18.
              At the request of the plaintiff, the court may direct service by a US
              marshal or other officer specially appointed by the court for that
              purpose. An appointment must be made when plaintiff can proceed in
              forma pauperis or is able to proceed as a seaman.
         Note: A lawyer could not serve because he is a party.
4(d) Waiver of Service; Duty to Save Costs of Service; Request to Waive:
         1. A defendant who waives service of a summons does not waive any
              objection to the venue or to the jurisdiction of the court over the
         2. A defendant subject to service under (e), (f), or (h) and that receives
              notice of an action has a duty to avoid unnecessary costs of serving the
              summons. The notice and request for waiver shall:
                  a. Be written and addressed to the defendant.
                  b. Be dispatched through first class mail or other reliable means.
                  c. Be accompanied by a copy of the complaint and identify the
                  d. Inform the defendant, by means of a text prescribed in an
                      official form promulgated pursuant to Rule 84 of the
                      consequences of compliance and of a failure to comply with
                      the request.
                  e. Set forth the date on which the request is sent.
                  f. Allow the defendant a reasonable time to return the waiver (at
                      least 30 days from when it is sent or 60 days if defendant is
                      outside of US).
                  g. Provide the defendant with an extra copy of the notice and
                      request, as well as a prepaid means of compliance in writing.
         If a defendant located in the US fails to comply with a request for waiver,
         the court shall impose the costs subsequently incurred in effecting service
         on the defendant unless good cause for the failure be shown.
         3. A defendant that, before being served, timely returns a waiver so
              requested is not required to serve an answer to the complaint until 60
              days after the date on which the requst for waiver was sent (or 90 days
              if outside the US).
                 4. When the plaintiff files a waiver with the court, the action shall
                     proceed, as if a summons and complaint had been served at the time of
                     filing the waiver, and no proof of service shall be required.
                 5. The costs to be imposed on a defendant under paragraph (2) for failure
                     to comply with a requet shall include the costs subsequently incurred
                     in effecting service under (e), (f), or (H) togther with the costs and
                     reasonable attroney’s fee of any motion required to collect the costs of
                 Note: Why is there a duty to waive? Courts, while committed to adversary
                 systems, still want some level of cooperation to lower costs, etc. Waivers
                 are good because it confirms the D gets notice, encourages parties to talk,
                 and there is an incentive to waive.
         4(e) Service Upon individuals within a judicial district of the U.S.: Service upon
         an individual from whom a waiver has not been obtained and filed, other than an
         infant, may be effected in any judicial district of the US:
                 1. Pursuant to the law of the state in which the court is located, or which
                     in service is effected, or
                 2. by delivering a copy of the summons and complaint to the individual
                     personally, by leaving copies at the person’s home with another person
                     of suitable age and discretion living there, or by delivering a copy of
                     the summons and of the complaint to an agent authorized by
                     appointment or by law to receive service of process.
         4(l) Proof of Service: Person shall prove service through affidavit. Failure to
         make proof of service does not affect the validity of the service.
         4(m) Timelimit for Service: Service of summons and complaint must be made
         within 120 days of filing the complaint, or the court shall dismiss the action
         without prejudice.
         4(n) Seizure of Property; Service of Summons Not Feasible.
Notes on Service of Process/Due Process & Notice:
Process rule heavily inclined towards imposing higher costs of service for greater

The 14th amendment due process clause governs the minimum standards for notice.

Greene v. Lindsay (Posting eviction notices on doors of public housing tenants done
according to KY law. Plaintiff contends they never received notice of eviction.).
- Cites language from Mullane for standard: “fundamental requirement of due process in
any proceeding which is to be accorded finality is notice reasonably calculated, under all
the circumstances, to apprise interested parties of the pendency of the action and afford
them an opportunity to present their objections.”
- Reasonableness of alternative forms of notification is assessed in three ways:
    1. Reliability of Notice
            a. Will it actually notify the defendant?
            b. Is it adequate for the situation?
    2. Cost:
            a. Actual Cost of Accomplishing Service
            b. Cost of delay of proceedings with more exhaustive type of notice.
    3. Interests at stake: (parking ticket vs. losing apartment vs. losing child)
            a. Interests of current and future people who receive service.
            b. What kind of legal proceeding is it? Does this type of proceeding require
                a higher standard?
- Dissent said that posting has precedent and followed KY law, is adequate and speedy,
mailing is no better.
- There is no disagreement over the standard used, only over what is reasonable.
- Appeal standard would be for clear error if the question was whether actual notice was
given versus de novo review if the notice given was adequate.

Form & Content of Claim:
Rule 8(a) – Claims for Relief:
   - A pleading which sets forth a claim for relief whether an original claim,
        counterclaim, cross-claim, or third-party claim shall contain:
            o A short and plain statement of the grounds on which the court’s juridiction
                depends, unless the court already has jurisdiction and the claim needs no
                new grounds of jurisdiction to support it;
            o A short and plain statement of the lcaim showing that the pleader is
                entitled to relief;
            o A demand for judgment for the relief the pleader seeks. Relief in the
                alternative or of several different types may be demanded.
        1. Functional test: will court and adversary know what the claim is about?
        2. Technical test: Are all the elements satisfied?
Rule 8(e) – Pleading to be concise and direct; consistency:
   - Each averment of a pleading shall be simple, concise, and direct. No technical
        forms are required.
   - A party may set forth two or more statements of a claim or defense alternately or
        hypothetically. When one of the two or more statements are rendered insufficient,
        ti doesn’t not render the entire pleading or defense to be insufficient. A party can
        also state inconsistent claims or defenses, based on legal, equitable, or maritime
        grounds. All statements are subject to obligations in Rule 11.
Rule 8(f) – Construct of Pleadings/Adequacy:
   - All pleadings shall be so construed as to do substantial justice. As long as
        pleading provide adverse party with proper notice of claim or defense, courts will
        not be hypertechnical.
   Notes: Why allow this inconsistency? There has been no discovery yet, so you might
   not be able to decide on one theory yet. You will usually want to pick one version by
Rule 9(b) – Special Pleading Requirements:
   - Fraud & mistake pleaded with particularity: malice, intent, knowledge, and other
        conditions of the mind are pleaded generally.
Notes on Rule 8 – standards of complaint.
Rannels v. S.E. Nichols, Inc (minimum standards under Rule 8(a) to set out the claim).
   -     Came up on appeal from a motion to dismiss on a 12(b)(6) failure to state a claim.
   -     Question to ask is: did the complaint cover the elements of the substantive law?
   -     The claim was for malicious prosecution under state law but in court because of
         diversity jurisdiction.
     - DC dismissed complaint because “the allegations… fall short and fail to supply
         the required factual allegations,” consisting of “not factual allegations, but legal
     - 3rd Circuit reverses, pointing out the FRCP specifically sought to eliminate
         distinction between facts & legal conclusions. District court also says P failed to
         state a basis for malice (the third element of malicious prosecution), but section
         14 of the complaint did so, and FRCP 9(b) allows that “malice and other
         conditions of mind can be averred generally.”
Reasons for a bare minimum complaint: If there was a weak case, prolong suit making
it better for settlement, bad lawyer, keeping strategy secret, too many facts might paint
you into a corner, can get more information from defendant to develop suit once you pass
the pleading stage, can believe that you’re wronged but all the proof is in the plaintiff’s
Reasons for overly descriptive complaint: because Rule 26(a) requires automatic
disclosure on the part of the defense – the defendant must answer and respond in as much
detail as the complaint sets out – but only on detailed claims. It’s also not sensible to cut
it too close because you want to persuade the defendant and the court on the first try – set
tone for judge, intimidate defendant, please client. It can also be for the public and press
and influence settlement, can tailor the answer after the defendant responds. You can
leave the door open to many causes of action.

Defendant’s Responses:
   1. Preanswer Motions (Rule 11/12)
   2. Answer (Rule 8(b)(c)(d)
   3. Counter claim (against P) or Cross-claim (against 3rd party) – both take the form
      of normal pleadings (Rule 8).

Rule 11 & 12 motion – Attacking the claim
Rule 12: Defenses & Objections – When and How Presented – by Pleading or Motion –
Motion for Judgment on the Pleadings
(a) when presented
       (1)Unless a different time is presecribed in a statute, a defendant shall serve an
              (A) Within 20 days of being served with the summons and complaint
              (B) If Service of the summons has been timely waived on request under
                   Rule 4(d), within 60 days after the datew when the request for waiver
                   is sent, or within 90 days if is was addressed outside US.
       (2) A party served with a pleading stating a cross-claim against that party shall
       serve an answer within 20 ays of being served. The plaintiff shall reply to a
       counterclaim in the answer within 20 days after service of the answer…
         (3)     A) The US, an agency of the US, an officer or employee of the US sued in
         official capacity, shall serve an answer to the complaint or cross-claim within 60
         days after the US attorney is served with the pleading.
                 (B) An officer of the US sued in an individual capacity for acts or
                     omissions occurring in connection with the performance of duties on
                     behalf of the US shall serve an answer within 60 days after service…
         (4) Unless a different time is fixed by court order, the service of a motion
         permitted under this rule alters these periods of time as follows:
                 (A) if the court denies the motion or postpones its deposition until the trial
                     on the merits, the responsive pleading shall be served within 10 days
                     after notice of the court’s action
                 (B) or if the court grants a motion for a more definite statement, the
                     respondive pleading shall be served within 10 days after the service of
                     the more definite statement.
(b) How presented. Every defense, in law or fact, to a claim for relief in any pleading,
whether a claim, counter-claim, cross-claim, or third-party claim, shall be asserted in the
responsive pleading thereto if one is required, except that the following defenses may at
the option of the pleader be made by motion:
                          (1) lack or jurisdiction over the subject matter
                          (2) lack of jurisdiction over the person
                          (3) improper venue
                          (4) insufficiency of process
                          (5) insufficiency of service of process
                          (6) failure to state a claim upon which relief can be granted
                          (7) failure to join a party under Rule 19.
A motion making these defenses shall be made before pleading if a further pleading is
permitted. No defense or objection is waived by being joined with one or more other
defenses or objections ina responsive pleading or motion. If a pleading sets forth a claim
for relief to which the adverse party is not required to serve a responsive pleading, the
adverse party may assert at trial any defense. If, on a motion asserting defense (6) to
dismiss for failure of the pleading to state a claim upon which relief can be granted,
matters outside the pleading are presented to and not excluded by the court, the motion
shall be treated as one for summary judgment and disposed of as provided in Rule 56…
(c) Motion for judgment on the pleadings. After the pleadings are closed any party may
move for jdugement on the pleadings. If, on a motion, matters outside the pleadings are
presented to and not excluded by the court, the motion shll be treated as one for summary
judgment and disposed of as provided in rule 56 anda ll parties hsall be given reasonable
opportunity to present all material made pertinent to such a motion by Rule 56.
(d) Preliminary Hearings: The defenses specified shall be heard and determined before
trial on application of any party…
(e) Motion for More Definite Statement: If a pleading to which a responsive pleading is
permitted is so vague that a party cannot reasonably be required to frame a responsive
pleading, the party may move for a more definite statement before interposing a
responsive pleading. Motion shall point out the defects. If motion is granted and order
not obeyed in 10 days, the court may strike the pleading or make another just order.
(f) Motion to Strike: Upon motion… the court may order stricken from any pleading any
insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.
(g) Consolidation of Defenses in Motion: A party who makes a motion under this rule
may join with it any other motions herein provided for and then available to the party. If
a party makes a motion under this rule but omits therefrom any defense the party shall not
thereafter make a motion based on the defense except under grounds set forth in (h)(2).
(h) Waiver or Preservation of Certain Defenses:
                       (1) A defense of lack of jurisdiction over person, improper venue,
                           insufficiency of process, or insufficiency of service of process
                           is waived (A) if omitted from a motion in the circumstances
                           described under (g) or (B) if it is neither made by motion under
                           this rule nor included in a responsive pleading or an
                           amendment thereof permitted by Rule 15(a) to be made as a
                           matter of course.
                       (2) A defense of failure to state a claim upon which relief can be
                           granted, a defense of failure to join a party indispensable under
                           Rule 19, an objection of failure to state a legal defense to a
                           claim may be made in any pleading permitted or ordered under
                           Rule 7(a) or by motion for judgment on the pleadings, or at the
                           trial on the merits.
                       (3) Whenever it appears by suggestion of the parties or otherwise
                           that the court lacks jurisdiction of the subject matter, the court
                           shall dismiss the action.

Haddle v Garrison – legal insufficiency under Rule 12(b)(6)
  - Case appealed from a motion to dismiss for failure to state a claim. TO make a
      claim for conspiracy, need to show a variety of factors. Defendant alleged
      plaintiff did not show injury to property.
  - Was there injury? District Court said no. Appeals Court said no. Supreme Court
      said yes.
  - Decision is based party on interpretation of law.
  - The challenge brought here was that there was no substantive law to support the
      facts of the claim, rather than the issues of the amount of damages. Argument
      was that the law is not there to support the claim and the court decided the
      substantive law to determine whether or not it applied in this case.
  - 12(b)(6) motion alleged legal insufficiency b/c loss of at-will employment did not
      constitute loss under §1985.
      §1985 requires:
      1. Two or more persons engaged in a conspiracy – OK
      2. to prevent testimony or retaliate for testifying, etc. – OK
      3. by - force, or by
                   - injury to person or property – property injury done b/c of at-will
                      employment loss?
      4. result  injury/damages
  Supreme court’s ruling:
   -   Yes, an at-will employment arrangement constitutes property under §1985 (even
       if not under due process)
   -   due process is wrong place to look, since purpose under 14th is very different than
       under §1985
   -   also, since these guys were barred from participating in the business, this firing is
       similar to protection against 3rd party interference with at-will employment which
       is a traditional tort
   -   finally, also similar to Tort b/c of language “injured in his person or property” is
       classic tort language

Three ways a complaint can be defective under pleading:
   1. No allegations pertaining to the elements of the law in question (both FRCP and
      code problem). This problem can be corrected.
   2. No facts according to the elements of the law (code problem). This problem can
      be corrected if the story was incomplete.
   3. Insufficiency of legal claim (both FRCP and code problem). This problem cannot
      be corrected because there is a complete story and still insufficient under the law.

   - Gillipsie had no facts according to the elements of the law (problem #2)
   - Rannels had no facts alleged (only conclusions) (problem #2), but since problem
       #2 only applies to code pleading, the SC found that there is no problem.
   - Haddle was attacked on problem #3 – lack of claim sufficient for legal relief –
       there is no way to solve this problem –

Although 12(b) is mostly used, 12(e) and 12(f) are useful for finding more information.

Rule 11 – Signing of Pleadings, Motions, and Other Papers; Representations to Court;

(a) Signature: Every pleading, written motion, and other paper shall be signed by at
least one attorney of record in the attorney’s individual name, or, if the party is not
represented by an attorney, shall be signed by the party. Each paper shall state the
signer’s address and telephone number, if any. Except when otherwise specifically
provided by rule or statute, pleadings need not be verified or accompanied by affidavit.
An unsigned paper shall be stricken unless omission of the signature is corrected
promptly after being called to the attention of the attorney or party.

(b) Representations to Court:
By presenting to the court (whether by signing, filing, submitting, or later advocating) a
pleading, written motion, or other paper, an attorney or unrepresented party is certifying
that to the best of the person’s knowledge, information, and belief, formed after an
inquirey reasonable under the circumstances, --
    (1) it is not being presented for any improper purpose, such as to harass or to
      cause unnecessary delay or needless increase in the costs of litigation;
   (2) the claims, defenses, and other legal contentions therein are warranted by
     existing law or by a non-frivolous argument for the extension, modification, or
     reversal of existing law or the establishment of new law;
   (3) the allegations and other factual contentions have evidentiary support or, if
     specifically so identified, are likely to have evidentiary support after a reasonable
     opportunity for further investigation or discovery; and
   (4) the denials of factual contentions are warranted on the evidence or, if
     specifically so identified, are reasonably based on a lack of information or belief.

(c) Sanctions
If after notice and a reasonable opportunity to respond, the court determines that
subdivision (b) has been violated, the court may, subject to the conditions stated
below, impose an appropriate sanction upon the attorneys, law firms, or parties that
have violated subdivision (b) or are responsible for the violation.
    (1) How initiated.
         (A) by motion. A motion for sanctions under this rule shall be made separately
    from other motions or requests and shall describe the specific conduct alleged to
    violate subdivision (b). It shall be served as provided in Rule 5, but shall not be filed
    with or presented to the court unless, within 21 days after service of the motion (or
    such other period as the court may prescribe), the challenged paper, claim, defense,
    contention, allegation, or denial is not withdrawn or appropriately corrected. If
    warranted, the court may award to the party prevailing on the motion the reasonable
    expenses and attorney’s fees incurred in presenting or opposing the motion. Absent
    exceptional circumstances, a law firm shall be held jointly responsible for violations
    committed by it partners, associates, and employees.
         (B) On Court’s Initiative. On its own initiative, the court may enter an order
    describing the specific conduct that appears to violate subdivision (b) and directing an
    attorney, law firm, or party to show cause why it has not violate subdivision (b) with
    respect thereto.
    (2) Nature of Sanction; Limitations. A sanction imposed for violation of this rule shall
    be limited to what is sufficient to deter repetition of such conduct or comparable
    conduct by others similarly situated. Subject to the limitations in subparagraphs (A)
    and (B), the sanction may consist of, or include, directives of a non-monetary nature,
    an order to pay a penalty into court, or, if imposed on motion and warranted for
    effective deterrence, an order directing payment to the movant of some or all of the
    reasonable attorneys’ fees and other expenses incurred as a direct result of the
         (A) Monetary sanctions may not be awarded against a represented party for
    violation of subdivision (b)(2).
         (B) Monetary sanctions may not be awarded on the court’s initiative unless the
    court issues its order to show cause before a voluntary dismissal or settlement of the
    claims made by or against the party which is, or whose attorneys are, to be
    (3) Order. When imposing sanctions, the court shall describe the conduct determined
    to constitute a violation of this rule and explain the basis for the sanction imposed.

(d) Inapplicability to Discovery
Subdivisions (a) through (c) of this rule do not apply to disclosures and discovery
requests, responses, objections, and motions that are subject to the provisions of Rules 26
through 37.

Sanctions and evolution of Rule 11:
   - Purpose of Rule 11 is to be deterrent to plaintiffs, lawyers, observers, and
       employees – not to punish. Thus, courts prefer non-monetary sanctions over
       monetary sanctions.
   - History of Rule 11 –
          o Prior to 1983 Sanctions were optional and only for willful violations – not
              enough of a punch. Sanctions are subjective to the belief of good faith.
          o After 1983, produces extremely tough version. Rule 11 litigation
              increases dramatically. Subjective to objective – now requires reasonable
              information. There shall be sanctions. Can be brought by other party.
          o After 1993, sanctions are not mandatory, but reasonable – middle ground.
              More objective standard. Sanctions are optional. Deterrence is the focus,
              rather than punishment. Fees are only awarded as a last resort.
   - What kind of sanctions?
          o Strike the offending documents.
          o Reprimand.
          o Education of lawyers
          o Fine to court.
          o Referring to disciplinary authorities.

Business Guides v. Chromatic Communications Enterprises
Business Guides places “seeds” of misinformation in its listings to detect copying, which
   they thought they detected in CCE’s upcoming directory. They identified 10 listings
   in their complaint that they alleged were copied, but their law firm had not asked for
   details about which information or which listings they were alleging. The court’s
   clerk did ask, and they responded by withdrawing 3 of the 10 allegations. The clerk
   phoned all 10 of the purportedly false listings and discovered that 9 out of 10 were
   real. Upon this discovery, the court sent them to a magistrate for hearings on whether
   sanctions would be appropriate under Rule 11(b)(3) (allegations or factual
   contentions have factual support, or are likely to…). They alleged at two hearings
   that the mistakes were a coincidence. The magistrate found this highly implausible,
   and recommended fining both the law firm and BG. Later discovered the (actual)
   reason for the errors which was an unreported change in procedure used for
   assembling the list of “seeds.” Magistrate still recommended fines for both BG and
   their firm (Finley, Kumble), but excused Finely, Kumble from fines relating to their
   initial filing, which was produced under great time constraint (to get a restraining
   order before CCE’s publication), holding that under these circumstances, Finley,
   Kumble was reasonable to rely on the representations of their “sophisticated
   corporate client.”
Notes: Case was decided when Rule 11 was toughest. Court believed it might have been
   an honest mistake, but they were just too careless.

Religious Technology Center v. Gerbode
RTC filed RICO suit against G, G filed Rule 11(b)(2) motion (not warranted by existing
  law, or reasonable extension… ) on the grounds that there was no proximate cause of
  RTC’s injury as required by clearly established law at the time of filing. District
  court agreed, holding that the RICO claims were “unreasonable under the
  circumstances.” Collected award from RTC’s attorneys equal to lodestar fees for
  appropriate proportion (from time RTC’s current attorneys took over the case) of G’s
  attorneys’ costs. Court imposed half the lawyers fees and the other half to go to the
  court – the only option for sanctions was monetary because the case was already over.

Claim is that Gerbode fraudulently formed tax-exempt corporations which it used to
   finance previous litigation against RTC

- also asked for sanctions under §1927 or court’s inherent power
     - §1927 and inherent powers sanctions require “bad faith”
         - does Rule 11 account for bad faith? Yes, in remedy, and more explicitly in
     (b)(1) (harassment)
finds Rule 11 violation:
     - definitely 11(b)(2) (existing law),
     - maybe (b)(1) as well? Court doesn’t find one, but does account for it in deciding
     sanctions – doesn’t really look at (b)(1) violation because the (b)(2) violation is so
     clear. - Problem with (b)(2) violation is that you can only go after the lawyers for the
     fact that they should have known better.
Why are attorney’s fees imposed even when it’s disfavored?
     - particularly appropriate in this contentious litigation b/c of enmity – galling to pay
         other side? Other options affect things that are already moot.
     -b/c it’s due to (b)(2) unwarranted under existing law, which is the attorneys’
         responsibility. Different from factual allegations, where clients can be held

Procedural issues -- safe harbor time vs. filing deadlines & mootness
   - Plaintiff said the court failed to allow safe harbor time before imposing sanctions.
   Should allow plaintiff to make corrections.
       - first, case is over (but doesn’t really matter)
       Should you be able to file Rule 11 motions when the case has already been
            - yes, deterrence.
            - no, moot. But also there will be another chance.

        - Second, if they waited 21 days under Rule 11 safe harbor, they would have to
   file response in the meantime under 20 day rule.
               - waive service, then you get 60 days, BUT requires P to offer waiver
               - court also has authority to grant extension of time to reply (based on
   filing of Rule 11)
               - court could also shorten time for Rule 11 response

How do rule 12(b)(6) relate to Rule 11?
   -   Rule 11 ensures reasonable investigation, while 12(b)(6) ensures facially
       significant complaint.
   -   Similarity: both are about ability to state a factual claim.
   -   Rule 11 has more remedies available.
   -   Can file both, but Rule 11 must be filed separately by itself.
   -   Filing of 12(b)(6) stops clock for requiring response.
   -   Rule 11 is highly discretionary, whereas Rule 12 is less so.
   -   Rule 12 better to get case dealt with quickly, while Rule 11 gets other things done
       and can also antagonize judge.

Heightened Pleading
   - Rule 8 is required for general pleading.
   - Some qualifications for fraud, mistake in Rule 9.
   - Some courts added heightened pleading for constitutional torts, and the SC nixed
      this for suit against municipalities but left open for individuals with qualified
      immunity from suit.
   - Constitutional Torts: Can sue individuals or authorities (under Section 1983) but a
      municipality is only liable if the action of the individual was due to a municipal
      custom. If the suit is against an individual, they have qualified immunity.
Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit
   - SC decided that Rule 9 did not require a heightened pleading standard for suits
      against municipalities.
   - After Leatherman, various courts required heightened pleadings in replies to
      answers, kept heightened pleading standard, can also restrict discovery issues to
      only those of immunity and can argue that Rules are not meant to overrule
      subtantive law (like immunity).
   - Might be able to justify heightened pleading for qualified immunity cases because
      immunity is not just avoiding liability but it is immunity from suit all together –
      this idea is violated if the case goes to Court.
   - Under Section 1983 you can sue government agency or government official for
      civil rights violations. For agency to be held lable, have to show a policy or
      custom that promoted the action. Can also sue an official, but they are covered by
      qualified immunity “immune from suit” if they show they were acting under
      reasonable belief that they were acting under the law.

Burden of Pleading
   - Substantive law tells the parties in general what issues matter in the lawsuit and
      one must also determine which party has the responsibility for which issues.
   - There are 3 burdens:
 1. Burden of Pleading (proving a claim or defense)
 2. Burden of Production (providing evidence)
 3. Burden of Persuasion (persuade trier of facts that your version is right)
   - Legal system assigns these tasks to the different parties, usually one party has all
      3 burdens
   - How do you decide who has the burden?
             1) Who knows the most about it?
               2) Who raised it in the first place/who will be happt to say it? (where
                   does the advantage lie?) Affirmative defense is the defendant’s burden.
               3) Tie burdens with probabilities (person alleging fact against the
                   ordinary situation gets the burden).
               4) Policy reasons – tip the balance in favor of preferred outcomes.
               5) Statutory language
   -   Burden of Pleadings is different from the burden of proof – usually they fall along
       the same lines but not always.
   -   Plaintiffs cannot reply to an answer unless the court orders it.

Gomez v. Toledo
   - Held Good faith action is an affirmative plea for immunity to §1983 suits, and the
       pleading burden rests with the defendant. Only two allegations are required of P:
       (1) P has been deprived of a Federal right, and (2) person who deprived her of that
       right acted under color of state or territorial law. Furthermore, “whether such
       immunity has been established depends on facts peculiarly within the knowledge
       and control of the defendant.” = access to information (evidentiary problem).
       Also cites statutory language: remedial legislation should be construed broadly
       to further its primary purpose – nothing in the legislation suggests that the
       plaintiff should have the burden – the language of the statute doesn’t require bad
       faith action.
   - Since Gomez, the court has redefined the good faith defense to include only the
       “objectively reasonable” component and has removed the “subjective belief”
       component (so maybe this should change the burden of pleading?)
   - Qualified immunity had an objective and subjective aspect at the time of this case
       – court said that the defendant alleging good faith is an affirmative defense
       because it is subjective and therefore the defendant has the burden of pleading it.
       It may not be that the defendant has the burden of proof.
Relationship between Gomez and Particularized Pleading
Gomez might be dead because there is no more subjective element to the qualified
immunity defense.
Court has not yet figured out the relationship between Gomez and Particularized Pleading

Answers – Form & Content

Rule 8(b) -- Defenses; Form of Denials
A party shall state in short and plain terms the party’s defenses to each claim asserted and
   shall admit or deny the averments upon which the adverse party relies. If a party is
   without knowledge or information sufficient to form a belief as to the truth of an
   averment, a party shall so state and this has the effect of a denial. Denials shall fairly
   meet the substance of the averments denied. When a pleader intends in good faith to
   deny only a part or a qualification of an averment, the pleader shall specify so much
   of it as is true and material and shall deny only the remainder. Unless the pleader
   intends in good faith to controvert all the averments of the preceding pleading, the
   pleader may generally deny all the averments except such designated averments
   or paragraphs as the pleader expressly admits; but, when the pleader does so intend to
   controvert all its averments, including averments of the grounds upon which the
   court’s jurisdiction depends, the pleader may do so by general denial subject to the
   obligations set forth in Rule11.

 General denials should be used only when everything in the assertion is false

Rule 8(c) -- Affirmative defenses
In pleading to a preceding pleading, a party shall set forth affirmatively accord and
    satisfaction, arbitration and award, assumption of risk, contributory negligence,
    discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality,
    injury by fellow servant, laches, license, payment, release, res judicata, statute of
    frauds, statute of limitations, waiver and any other matter constituting an avoidance or
    affirmative defense. When a party has mistakenly designated a defense as a
    counterclaim or a counterclaim as a defense, the court on terms, if justice so requires,
    shall treat the pleading as if there had been a proper designation.

Rule 8(d) -- Effect of failure to deny
Averments in a pleading to which a responsive pleading is required, other than those as to
   the amount of damages, are admitted when not denied in the responsive pleading.
   Averments in a pleading to which no responsive pleading is required or permitted
   shall be taken as denied or avoided.
Answers – Cases & Notes
   - Answers and Pre-answer motions – pre-answer motions will delay case
   - There are orders and requirements for when things can be asserted.
   - Rule 12(b) has 7 defenses – can be brought in pre-answer motion or in answer,
       but must be brought up all the defenses in only one pre-answer motion.
   - All other defenses, including affirmative ones, go in the answer in plain language
       and with an equal level of detail to match the complaint and admit or deny certain

Zielinski v. Philadelphia Piers, Inc. – negligent forklift driver, misleading general
    - P filed suit against the wrong defendant, since PPI had sold the business in
       question to Carload Contractors, Inc (CCI). PPI, rather than specifically
       explaining this in response to P’s claim, generally denied the relevant averments.
    - Held for the purposes of the trial, the jury will be told that the forklift was owned
       by PPI and that the driver (Sandy Johnson) was doing PPI’s work on that date.
    - This will not result in any prejudice, because the same insurance company covers
       both PPI and CCI and has been responding from the start. Also, since PPI didn’t
       follow rule 8(b), they failed to comply with specificity requirement and created
       this problem. Even though this may have been in good faith, it doesn’t matter.
    - Principles:
            o Under FRCP 8(b), 28 U.S.C., the answer contained an ineffective denial of
               the complaint, which alleged that “a motor vehicle … was owned,
               operated an controlled by the defendant …” Rule requires that “when a
               pleader intends in good faith to deny only a part or a qualification of an
               averment, he shall specify so much of it as is true and material and shall
               deny only the remainder.” Since, of ¶5 of the complaint, D does not deny
               at least the contention that the forklift came into contact with P, it was
               inappropriate to generally deny the entire ¶.

Layman v. Southwestern Bell Telephone Co. – waived easement as affirmative defense
to trespass
    - D put in underground phone cables on P’s land. P sued for trespass, alleging a
        loss in value of her land. D denied averments generally in its answer, but at trial
        introduced (over P’s objection) evidence of an easement granted by previous
        property owner. P appealed, claiming that the easement was an affirmative
        defense, which was waived by D’s failure to introduce it in its pleadings.
    - Held the easement is an affirmative defense that needs to be pled to avoid waiver.
        “[I]n determining wheat defenses must be affirmatively pleaded as a condition to
        the admissibility of such evidence at the trial, the test applied is whether the
        defendant intends to rest his defense upon some fact not included in the
        allegations necessary to support the plaintiff’s case.” Furthermore, although Rule
        8(c) (here Rule 55.08) does not enumerate “easement” among its affirmative
        defenses, it does include “any other matter constituting an avoidance or
        affirmative defense,” and does explicitly include “licenses” as a affirmative
        defense to trespass. Remanded for new trial with use of the documents.

   - Usually pleadings stop with the waiver.
   - Rule 7(a)
        i.      Replies required if answer contains a counterclaim that is labeled as
        ii.     If answer has a labeled counterclaim that is really an affirmative
                defense, then technically not required to reply
        iii.    If answer has a labeled affirmative defense that is really a
                counterclaim, no reply is required
        iv.     Usually, lawyers reply to all new matter to avoid a possible inadvertent
        v.      Rule also allows court to order a reply on its own or on a party’s
                motion – this is rarely done.

Amendments to Pleadings
Rule 15—Amended and Supplemental Pleadings

(a) Amendments
A party may amend the party’s pleading once as a matter of course at any time before a
    responsive pleading is served or, if the pleading is one to which no responsive
    pleading is permitted and the action has not been placed upon the trial calendar, the
    party may so amend it at any time within 20 days after it is served. Otherwise a party
    may amend the party’s pleading only by leave of the court or by written consent of
   the adverse party; and leave shall be freely given when justice so requires. A party
   shall plead in response to an amended pleading within the time remaining for
   response to the original pleading or within 10 days after service of the amended
   pleading, whichever period may be the longer, unless the court otherwise orders.

(b) Amendments to Conform to the Evidence
When issues not raised by the pleadings are tried by express or implied consent of the
    parties, they shall be treated in all respects as if they had been raised in the pleadings.
    Such amendment of the pleadings as may be necessary to cause them to conform to
    the evidence and to raise these issues may be made upon motion of any party at any
    time, even after judgment; but failure so to amend does not affect the result of the
    trial of these issues. If evidence is objected to at the trial on the ground that it is not
    within the issues made by the pleadings, the court may allow the pleadings to be
    amended and shall do so freely when the presentation of the merits of the action will
    be subserved thereby and the objecting party fails to satisfy the court that admission
    of such evidence would prejudice the party in maintaining the party’s action or
    defense upon the merits. The court may grant a continuance to enable to objecting
    party to meet such evidence.

(c) Relation Back of Amendments
An amendment of a pleading relates back to the date of the original pleading when
(1) relation back is permitted by the law that provides the statute of limitations applicable
    to the action, or
(2) the claim or defense asserted in the amended pleading arose out of the conduct,
    transaction, or occurrence set forth or attempted to be set forth in the original
    pleading, or
(3) the amendment changes the party or the naming of the party against whom a claim is
    asserted if the foregoing provision (2) is satisfied and within the period provided by
    Rule 4(m) for service of the summons and complaint, the party to be brought in by
    amendment (A) has received such notice of the institution of the action that the party
    will not be prejudiced in maintaining a defense on the merits, and (B) knew or should
    have known that, but for a mistake concerning the identity of the proper party, the
    action would have been brought against the party.
    The delivery or mailing of process to the United States Attorney, or United States
    Attorney’s designee, or the Attorney General of the United States, or and agency or
    officer who would have been a proper defendant if named, satisfies the requirement
    of subparagraphs (A) and (b) of this paragraph (3) with respect to the United States or
    any agency or officer thereof to be brought into the action as a defendant.
 relation back is only a problem if stat of limitations has run
 common nucleus of operative facts

(d) Supplemental Pleadings
Upon motion of a party the court may, upon reasonable notice and upon such terms as are
    just, permit the party to serve a supplemental pleading setting forth transactions or
    occurrences or events which have happened since the date of the pleading sought to
    be supplemented. Permission may be granted even though the original pleading is
   defective in its statements of a claim for relief or defense. If the court deems it
   advisable that the adverse party plead to the supplemental pleading, it shall so order,
   specifying the time therefor.

Notes on Amendments:
   - There are three phases to Rule 15.
           o Amend within 10 days – freely given as a matter of course.
           o Throughout the trial – agreement of other party or freely given by court.
           o Later – Foman standards
   - The operative question for relation-back doctrine is: Did the Defendant have
       notice/reason to expect (common nucleus of operative facts)?
   - Reasons why you cannot amend – Foman Standards:
           o Undue delay
           o Bad faith motive
           o Repeated failure to cure
           o Futility – statute of limitations
           o Undue prejudice (e.g. statute of limitations, reliance, witness dead, etc…)
               – you can’t put your adversary in a worse position than if you included
               this in the original complaint. If you’re in a worse position from the
               passage of time, that is different.

Beeck v. Aquaslide ‘N’ Dive Corp.
- Aquaslide admits manufacture in reply, discovery.
- Statute of limitations runs, then president of Aquaslide sees the slide and notices it’s not
- Court then granted a separate trial on the issue of manufacture.
- Court is dismissive of prejudice for two reasons:
     - May be ways around statute of limitations.
     - May not be prejudice if P wasn’t going to win on this issue anyway.
     - Might win anyway on issue of manufacture.
- If there is no leave to amend, how is Aquaslide supposed to present a defense of
someone else’s manufacture? Outcome without amendment is ridiculous. Would force a
settlement. In light of lack of bad faith, this doesn’t seem fair. Possible Rule 11
problems for lack of care in investigation.
- The aim of the rules is to avoid surprise.
- The goal of relation back is to allow amendment after the statute of limitations has run.
We have statute of limitations for good reasons (knowledge dies, level of comfort, etc).

Moore v. Baker – no info on alternatives to surgery, amend to negligence in surgery
  - Has blocked arteries, Dr. recommends surgery, informs of risks but not
      alternatives. She is injured in surgery, and sues under informed consent law.
  - Dr. moves for summary judgment.
  - P moves to amend complaint to assert negligence during surgery.
  - Court disallows, finding that facts re consent (pre-surgery) are a totally different
      set from those required to defend negligence (facts of surgery). Also, different
      legal issues, point in time, conduct in question… P could not have given notice to
       D of possible claim given the facts alleged in the complaint. Case moved from
       specific aspect of surgery to a more general claim.
   -   The disallowal of the claim might be problematic because the rules say that as
       long as it comes from the same transaction, amendment should be allowed. On
       other hand, you could argue it wasn’t the same transaction – post-operative care
       different from pre-operative suggestions.
   -   Moore also brought in new facts to play – not just legal theory.

Bonerb v. Richard J. Caron Foundation – Basketball court injury
   - P starts with general claim of negligent maintenance of the basketball court, later
      wants to add a claim relating to negligent counseling.
   - Held that it does relate back. Different legal issue, but common nucleus of facts.
      The case moves from broader to narrower claim. The case for negligent
      counseling relied on the same facts as the original complaint.

Final Questions on Pleadings:
   - Should we make pleadings require more facts? Allow more discretion in terms of
       amendments? More protections against discovery? One size fits all
       pleading/discovery to make things universal or allowing different scope options
       for the two to allow less expense or delay during discovery? Make pleadings
       broad and discovery expensive to force people to settle?

II. Discovery
    - Basic rule allows relevant information, but there are some private privileges.
    - The definition of relevant is very wide open – more than admissible: reasonably
        calculated to lead to admissible is OK in discovery.
    - The definition of privilege: tied to the source of information, not the content. Is
        information privileged? Will it violate constitution to allow it? Self-incrimination
        issues? Also, attorney-client privilege, husband-wife privilege, doctor-patient
        privilege… there is always a question of who gets to waive the privilege.

Rule 26 – Gnereal Provisions Governing Discovery; Duty of Disclosure

(a) Required Disclosures; Methods to Discover Additional Material

(1) Initial Disclosures
    Except to the extent otherwise stipulated or directed by order or local rule, a party
shall, without awaiting a discovery request, provide to other parties:
    (A) The name and, if known, the address and telephone number of each individual
        likely to have discoverable information that the disclosing party may use to
        support its claims or defenses, unless solely for impeachment, identifying the
        subjects of the information;
    (B) A copy of, or a description by category and location of, all documents, data
        compilations, and tangible things in the possession, custody, or control of the
        party and that the disclosing party may use to support its claims or defenses,
        unless solely for impeachment.
   (C) A computation of any category of damages claimed by the disclosing party,
       making available for inspection and copying as under Rule 34 the documents or
       other evidentiary material, not privileged or protected from disclosure, on which
       such computation is based, including materials bearing on the nature and extent of
       injuries suffered; and
   (D) For inspection and copying as under Rule 34 any insurance agreement under
       which any person carrying on an insurance business may be liable to satisfy part
       or all of a judgment that may be entered in the action or to indemnify or reimburse
       for payments made to satisfy the judgment.
   (E) There are a variety of categories of proceedings, which are exempt from initial
       disclosure under Rule 26(a)(1).
These disclosures shall be made at or within 14 days after the Rule 26(f) conference
   unless a different time is set by stipulation or court order, or unless a party objects
   during the conference that initial disclosures are not appropriate in the circumstances
   ad states the Rule 26(f) objection. Any party served or joined after the 26(f)
   conference must make disclosures within 30 days. A party must make its initial
   disclosures pasted on the information then reasonable available to it and is not
   excused from making its disclosures because it has not fully completed its
   investigation of the case or because it challenges the sufficiency of another party’s
   disclosures or because another party has not made its disclosures.

(2) Disclosure of Expert Testimony
    (A) In addition to the disclosures required by paragraph (1), a party shall disclose to
        other parties the identity of any person who may be used at trial to present
        [expert] evidence.
    (B) Except as otherwise stipulated or directed by the court, this disclosure shall, with
        respect to a witness who is retained or specially employed to provide expert
        testimony in the case or whose duties as an employee of the party regularly
        involve giving expert testimony, be accompanied by a written repost prepared and
        signed by the witness. The report shall contain a complete statement of all
        opinions to be expressed and the basis and reasons therefor; the data or other
        information considered by the witness in forming the opinions; and exhibits to be
        used as a summary of or support for the opinions; the qualifications of the
        witness, including a list of all publications authored by the witness within the
        preceding ten years; the compensation to be paid for the study and testimony; and
        a listing of any other cases in which the witness has testified as an expert at trial
        or by deposition within the preceding four years.
    (C) These disclosures shall be made at the times and in the sequence directed by the
        court. In the absence of other directions from the court or stipulation by the
        parties, the disclosures shall be made at least 90 days before the trial date or the
        date the case is to be ready for trial or, if the evidence is intended solely to
        contradict or rebut evidence on the same subject matter identified by another party
        under paragraph (2)(B), within 30 days after the disclosure made by the other
        party. The parties shall supplement these disclosures when required under
        subdivision (e)(1).

(3) Pretrial Disclosures
In addition to the disclosures required in the preceding paragraphs, a party shall provide
    to other parties the following information regarding the evidence that it may present
    at trial other than solely for impeachment purposes:
    (A) the name and, if not previously provided, the address and telephone number of
         each witness, separately identifying those whom the party expects to present and
         those whom the party may call if the need arises;
    (B) the designation of those witnesses whose testimony is expected to by presented
         by means of a deposition and, if not taken stenographically, a transcript of the
         pertinent portions of the deposition testimony; and
    (C) an appropriate identification of each document or other exhibit, including
         summaries of other evidence, separately identifying those which the party expects
         to offer and those which the party may offer if the need arises.
Unless otherwise directed by the court, these disclosures shall be made at least 30 days
    before trial. Within 14 days thereafter, unless a different time is specified by the
    court, aparty may serve and file a list disclosing (i) any objections to the use under
    Rule 32(a) of a deposition designated by another party under subparagraph (B) and
    (ii) any objection, together with the grounds therefor, that may be made to the
    admissibility of materials identified under subparagraph (C). Objections not so
    disclosed, other than objections under Rules 402 [relevance] or 403
    [prejudicial/confusing/will lead to delay] of the FRE, shall be deemed waived unless
    excused by the court for good cause shown.

(4) Form of Disclosures; Filing
Unless otherwise directed by order or local rule, all disclosures under paragraphs (1)
    through (3) shall be made in writing signed, served, and promptly filed with the court.

(5) Methods to Discover Additional Matter
Parties may obtain discovery by one or more of the following methods: depositions upon
  oral examination or written questions; written interrogatories; production of documents
  or things or permission to enter upon land or other property under Rule 34 [Production
  of Documents and Things and Entry upon Land for Inspection and Other Purposes] or
  45(a)(1)(C) [subpoena], for inspection and other purposes; physical and mental
  examination [Rule 35]; and requests for admission [Rule 37].

   - Rule 26a sets out the automatic disclosure provisions – which were added in
       1993. Before being asked, you must set out all relevant information about
       witnesses and documents that you might use at trial.
   - The original automatic disclosure provisions were broaders because it forced you
       to disclose information that would hurt your side – also allowed opt out for
       districts not to have it.
   - In 2000, automatic disclosure was amended to only require automatic disclosure
       of iformation you might use during trial and opt out clause was eliminated.
   - This rule is an area of flux.
(b) Discovery Scope and Limits

(1) In General
Parties may obtain discovery regarding any matter, not privileged, that is relevant to the
  claim or defense of any paty, including the existence, description, nature, custody,
  condition, and location of any books, documents, or other tangible things and the
  idenity and location of persons having knowledge of any discoverable matter. For good
  cause, a court may order discovery of any matter relevant to the subject matter involved
  in the action. Relevant information need not be admissible at the trial if the discovery
  appears reasonably calculated to lead to the discovery of admissible evidence. All
  discovery is subject to limitations imposed by 26b2i, ii, and iii.
(2) Limitations:
By order, the court may alter the limits in these rules on the number of depositiona dn
  interrogatories or the length of depositions under Rule 30. By order or local rule the
  court may also limit the number of requests under Rule 36. The frequency or extent of
  use of the discovery methods otherwise permitted under these rules and by any local
  rule shall be limited by the court it I determines that (i) the discovery sough is
  unreasonably cumulative or duplicative, or is obtainable from some other source that is
  more vonvenient, less burdensome, or less expensive; (ii) the party seeking discovery
  hs had ample opportunity by discovery in the action to obtain the information sought;
  or (iii)the burden or expense of the propsed discovery outweighs its likely benefit,
  taking into account the needs of the case, the amount in controversy, the paries’
  resources, the importance of the issues at stake in the litigation, and the importance of
  the propsed discovery in resolving the issues. The court may act upon its own initiative
  after reasonable notice or purusnat to a motion under Rule 26(c).

Notes: This rule sets out the general scope – what is relevant and not privileged. What is
 relevant is admissible to prove and also what might lead to more evidence to prove
 issues. Privilege exists even if it is relevant. Only communication is privileged, not
 underlying facts.

(2) Limitations
By order or by local rule, the court may alter the limits in these rules on the number of
  depositions and interrogatories and may also limit the length of depositions under Rule
  30 [oral depositions] and the number of requests under Rule 36 [Requests for
  Admission]. The frequency or extent of use of the discovery methods otherwise
  permitted under these rules and by any local rule shall be limited by the court if it
  determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or
  is obtainable from some other source that is more convenient, less burdensome, or less
  expensive; (ii) the party seeking discovery has had ample opportunity by discovery in
  the action to obtain the information sought; or (iii) taking into account the needs of the
  case, the amount in controversy, the parties’ resources, the importance of the issues at
  stake in the litigation, and the importance of the proposed discovery in resolving the
  issues. The court may act upon its own initiative after reasonable notice or pursuant to a
  motion under subdivision (c).
Filled out by the lawyer using information from the party. Can only be directed to
parties. Can state objections & then answer the unobjectionable part of the question.
Good 1st step for basic facts beyond the pleadings. Cheap. Often done early. Rule has
limited how many interrogatories there can be and the court can adjust the number.

Rule 33 – Interrogatories to Parties

(a) Availability
Without leave of court or written stipulation, any party may serve upon any other party
written interrogatories, not exceeding 25 in number including all discrete subparts, to be
answered by the party served or, if the party served is a public or private corporation or a
partnership or agency, by any officer or agent, who shall furnish such information as is
available to the party. Leave to serve interrogatories shall be granted to the extent
consistent with the principles of Rule 26(b)(2). Without leave of court or written
stipulation, interrogatories may not be served before the time specified in Rule 26(d).
(b) Answers and Objections:
                (1) Each interrogatory shall be answered separately and fully in writing
                    under oath, unless it is objected to, in which event the objecting party
                    shall state the reasons for objection and shall answer to the extent the
                    interrogatory is not objectionable.
                (2) The answers are to be signed by the person making them and
                    objections signed by the attorney making them.
                (3) The party upon whom the interrogatories have been served shall serve
                    a copy of the answers and objections if any, within 30 days after the
                    service of the interrogatories. A shorter or longer time may be
                    directed by the court or, in the absernce of such an order, agreed to in
                    writing by the parties subject to Rule 29.
                (4) All grounds for an objection to an interrogatory shall be stated with
                    specificity. Any ground not stated in a timely objection is waived
                    unless the party’s failure to object is excused by the court for good
                    cause shown.
                (5) The party submitting the interrogatories may move for an order under
                    Rule 37(a) with respect to any objection to or other failure to answer
                    an interrogatory.
(c) Scope; Use at Trial
- Interrogatories may relate to any matters which can be inquired into under Rule
26(b)(1), and the answers may be used to the extent permitted by the rules of evidence.
- An interrogatory otherwise proper is not necessarily objectionable merely because an
answer to the interrogatory involves an opinion or contention that relates to fact or the
application of law to fact, but the court may order that such an interrogatory need not be
answered until after designated discovery has been completed or until a pre-trial
conference or other later time.
(d) Option to Produce Business Records.
Where the answer to an interrogatory may be derived from business records of the party
    upon whom the interrogatory has been served and the burden of deriving the answer
   is substantially the same for the party serving the interrogatory as for the party served,
   it is a sufficient answer to such interrogatory to specify the recods from which the
   answer may be derived and to afford to the party serving the interrogatory reasonable
   opportunity to examine, audit or inspect such records and to make copies,
   compilations, abstracts, or summaries. A specification shall be in sufficient detail to
   permit the interrogating party to locate and to identify the records from which the
   answer may be ascertained.

Document Production/Interrogatories
- only for parties
- biggest potential for abuse with document production
- fear of failing to protect something, fear of missing something important
- dumping too much on the other side has limitations, provider still has to map out where
things might be.

Rule 34 – Production of Documents and Things and Entry upon Land for Inspection
and Other Purposes

(a) Scope
Any party may serve on any other party a request (1) to produce and permit the party
    making the request, or someone acting on the requestor’s behalf, to inspect and copy,
    any designated documents (including writings, drawings, graphs, charts, photographs,
    phono-records, and other data compilations from which information can be obtained,
    translated, if necessary, by the respondent through detection devices into reasonably
    usable form), or to inspect and copy test, or sample any tangible things which
    constitute or contain matters within the scope or Rule 26(b) and which are in the
    possession, custody or control of the party upon whom the request is served; or (2) to
    permit entry upon designated land or other property in the possession or control of the
    party upon whom the request is served fro the purpose of inspection and measuring,
    surveying, photographing, testing, or sampling the property or any designated object
    or operation thereon, within the scope of Rule 26(b)

(b) Procedure
The request shall set forth, either by individual item or by category, the items to be
    inspected, and describe each with reasonable particularity. The request shall specify a
    reasonable time, place and manner of making the inspection and performing the
    related acts. Without leave of court or written stipulation, a request may not be served
    before the time specified in Rule 26(d).
The party upon whom the request is served shall serve a written response within 30 days
    after the service of the request. A shorter or longer time may be directed by the court
    or, in the absence of such an order, agreed to in writing by the parties, subject to Rule
    29. The response shall state, with respect to each item or category, that inspection and
    related activities will be permitted as requested, unless the request is objected to, in
    which event the reasons for the objection shall be stated. If objection is made to part
    of an item or category, the part shall be specified and inspection permitted of the
    remaining parts. The party submitting the request ay move for an order under Rule
   37(a) with respect to any objection to or other failure to respond to the request or any
   part thereof, or any failure to permit inspection as requested.
A party who produces documents for inspection shall produce them as they are kept in
   the usual course of business or shall organize and label them to correspond with the
   categories in the request.

(c) Persons not Parties
A person not a party to the action may be compelled to produce documents and things or
    to submit to an inspection as provided in Rule 45 [Subpoena].

- awesome tool: follow up, objections rarely stop flow, dry run of trial, etc.
- very expensive with videotapes, stenographers, etc., so tend to be left to the end
- can be used at trial for impeachment of witnesses
- can be used if parties have died, or are otherwise unavailable
- how do you find out the topic of the deposition as the defending lawyer? Document
requests that accompany subpoena is best way.

Depositions Rules
Rule 30 – Depositions upon Oral Examination
   (a) When Depositions may be Taken; When Leave Required
   (1) A party may take the testimony of any person, including a party, by deposition
       upon oral exaination witout leave of cout except as provided in Paragraph 2.
   (2) A party must obtain leave of court, which shall be granted to the extent consistent
       with the principles stated in Rule 26(b)(2) if the person to be examined is
       confined in prison or if, without the written stipulation of the parties:
                      (A) A proposed deposition would result in more than ten depositions
                          being taken under this rule…
                      (B) The person to be examined already has been deposed in this
                      (C) A party seeks to take a deposition before the time specified in
                          Rule 26(d) unless the notice contains a certification, with
                          supporting facts, that the person to be examined is expected to
                          leave the US.
   (b) Notice of Examination: General Requirements; Method of Recording; Production
   of Documents and Things; Deposition of Organization; Deposition by Telephone
   (1) A party desiring to take the deposition of any person upon oral examination shall
       give reasonable notice in writing to every other party to the action. The notice
       shall state the time and place for taking the deposition and the name and address
       of eac person to be examined, if known, and if the name is not known, a general
       dseciption sufficient to identify the person or the particular class or group to
       which the person belongs. If a subpoena duces tecum is to be served on the
       person to be examined the dsignation of the materials to be produced as set forth
       in the subpoena shall be attached to or included in the notice.
   (2) The party taking the deposition shall state in the notice the method by which the
       testimony shall be recorded. Unless the court orders otherwise, it may be
        recorded… Any party may arrange for a transcription to be made from the
    (3) With prior notice to the deponent and other parties, any party may designate
        another method to record the deponent’s testimony in addition to the method
        specified by the person taking the deposition. The additional record shall be made
        at the party’s expense.
    (4) Unless otherwise agreed by the parties, a deposition shall be conducted before an
        officer appointed or designated under Rule 28 and shall begin with a statement on
        the record by the officer that includes (A) the officer’s name and business address
        (B) the date and time and place of the deposition (C) the name of the deponent
        (D) the administration of the oath or affirmation to the deponent and (E) an
        identification of all persons present. If the deposition is recorded other than
        stenographically, the officer shall repeat items (A) through (C) at the beginning of
        each unit of recording tape…
    (5) The notice to a party deponent may be accompanied by a request made in
        compliance with Rule 34 for the production of documents and tanglible things at
        the taking of the deposition. The procedure of Rule 34 applies.
    (6) A party may in the partys notice and in a subpoena name as the deponent a public
        or private corporation or a partnership or association … and describe with
        reasonable particularity the matters on which examination is requested. In that
        event, the organization so named shall designate one or more officers… to testify
        on its behalf…
    (7) The parties may stipulate in writing or the court may upon motion order that a
        deposition be taken by telephone or other remote electronic means…
(c) Examination and Cross-Examination; Record of Examination; Oath; Objections
(d) Schedule and Duration; Motion to Terminate or Limit Examination
(e) Review by Witness; Changes; Signing
(f) Certification and Filing by Officer; Exhibits; Copies; Notice of Filing
(g) Failure to Attend or to Serve Subpoena; Expenses
Rule 31 – Depositions upon Written Questions
    (a) Serving Questions; Notice
    (b) Officer to Take Responses and Prepare Record
    (c) Notice of Filing
Rule 32 – Use of Depositions in Court Proceedings
    (a) Use of Depositions
    (b) Objection to Admissibility
    (c) Form of Presentation
    (d) Effect of Errors and Irregularities in Deposition

Medical Exams
Rule 35
- When mental or physical condition of a person is in controversy, the court may order
the party to submit to an exam and must be for good cause and upon notice to the person
being examined and to all parties and shall specify time, place, manner, conditions, and
scope of the exam. Good cause is when the person’s health is directly at issue.
Requests for Admission
- Different from interrogatories, because it’s off the table once admitted – not really for
substantial contested issues
- Similar to pleading in that it functionally asks person to deny or admit. Your answers
are binding.
- Courts do allow change and taking back under unusual circumstances.
- Used as part of discovery strategy and its powerful to get admissions.
- Can impose costs of proving something that should have been admitted – it’s not so
much an ethical issue because usually courts are forgiving on not admitting true big
- Classic issue is authenticity of documents
- Different from stipulations, which are more cooperative, but operationally the same

Rule 36 – Requests for Admission

(a) Request for Admission
A party may serve upon any other party a written request for the admission, for purposes
    of the pending action only, of the truth of any matters within the scope of Rule
    26(b)(1) set forth in the request that relate to statements or opinions of fact or of the
    application of law to fact, including the genuineness of any documents described in
    the request. Copies of documents shall be served with the request unless they have
    been or are otherwise furnished or made available for inspection and copying.
    Without leave of court or written stipulation, requests for admission may not be
    served before the time specified in Rule 26(d).
Each matter of which an admission is requested shall be separately set forth. The matter
    is admitted unless, within 30 days after service of the request, or withing such shorter
    or longer time as the court may allow, or as the parties may agree to in writing,
    subject to Rule 29, the party to whom the request is directed serves upon the party
    requesting the admission a written answer or objection addressed to the matter, signed
    by the party or by the party’s attorney. If objection is made, the reasons therefor shall
    be stated. The answer shall specifically deny the matter or ser forth in detail the
    reasons why the answering party cannot truthfully admit or deny the matter. A denial
    shall fairly meet the substance of the requested admission, and when good faith
    requires that a party qualify an answer or deny only a part of the matter of which an
    admission is requested, the party shall specify so much of it as is true and qualify or
    deny the remainder. An answering party may not give lack of information or
    knowledge as a reason for failure to admit or deny unless the party states that the
    party has made reasonable inquiry and that the information known or readily
    obtainable by the party is insufficient to enable the party to admit or deny. A party
    who considers that a matter of which an admission has been requested presents a
    genuine issue for trial may not, on that ground alone, object to the request; the party
    may, subject to the provisions of Rule 37(c), deny the matter or set forth reasons why
    the party cannot admit or deny it.
The party who has requested the admissions may move to determine the sufficiency of
    the answers or objections. Unless the court determines that an objection is justified, it
    shall order that an answer be served. If the court determines that an answer does not
   comply with the requirements of this rule, it may order either that the matter is
   admitted or that an amended answer be served. The court may, in lieu of these orders,
   determine that final disposition of the request be made at a pre-trial conference or at a
   designated time prior to trial. The provisions of Rule 37(a)(4) apply to the award of
   expenses incurred in relation to the motion.

(b) Effect of Admission
Any matter admitted under this rule is conclusively established unless the court on
    motion permits withdrawal or amendment of the admission. Subject to the provisions
    of Rule 16 governing amendment of a pre-trial order, the court may permit a
    withdrawal or amendment when the presentation of the merits of the action will be
    subserved thereby and the party who obtained the admission fails to satisfy the court
    that withdrawal or amendment will prejudice that party in maintaining the action or
    defense on the merits. Any admission made by a party under this rule is for the
    purpose of the pending action only and is not an admission for any other purpose nor
    may it be used against the party in any other proceeding.

Privilege, Limits & Conflicts in Discovery

Rule 26(b)
(3) Trial Preparation: Materials:
    - A party may obtain discovery of documents and tangible things prepared in
       anticipation of litigation or for trial by or for another party or their representative
       only upon a showing that the party seeking discovery has substantial need of the
       materials in the preparation of the party’s case and that the party is unable without
       undue harship to obtain the substantial equivalent of the materials. The court
       shall protect against disclosure of the mental impressions, conclusions, opinions,
       or legal theories of the attorney.
    - A party can get without required showing of need a statement concerning the
       action previously made by that party.
       Decision tree for 26(b)(3)
                                 1. Is it a document or a tangible thing? If not, it is
                                      outside of this rule.
                                 2. Is it otherwise discoverable (relevant but not
                                      privileged)? If not, then stop.
                                 3. Is it prepared in anticipation of litigation? If no, then
                                      discoverable. If yes, then it is not discoverable.
                                 4. Is there a substantial need and is it not accessible
                                      without undue hardship? If no need or hardship, then
                                      not available.
                                 5. Is this a mental impression, conclusion, or opinion? If
                                      yes, then discovery excludes these aspects. If no, you
                                      get the whole thing.
(4) Trial Preparation: Experts
   -    A party can depose any person who has been identified as an expert whose
        opinions may be presented at trial.
    - A party can discover facts known or opinions held by an expert retained by
        another party in anticipation of trial only as provided in Rule 35(b) or under
        exceptions need where it is impractical for the party to obtain them through other
    - Unless injustice would result, the court shall require that the party seeking the
        deposition pay the expert a fee for time spent in responding to discovery and with
        respect to discovery obtained from another party’s expert, to compensate the other
        party a fair amount of the fees reasonably incurred in obtaining facts from the
(5) Claims of Privilege or Protection of Trial Preparation Materials.
When a party withholds information otherwise discoverable under these rules by
    claiming that it is privileged or subject to protection as trial preparation material, the
    party shall make the claim expressly and shall describe the nature of the documents,
    communication, or things not produced or disclosed in a manner that, without
    revealing information itself privileged or protected, will enable other parties to assess
    the applicability of the privilege or protection.

Rule 26(c) – Protective Orders
Upon motion by a party or by the person from whom discovery is sought, accompanied
     by a certification that the movant has in good faith conferred or attempted to confer
     with other affected parties in an effort to resolve the dispute without court action, and
     for good cause shown, the court in which the action is pending or alternatively, on
     matters relating to a deposition, the court in the district where the deposition is to be
     taken may make any 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 the disclosure or discovery not be had;
     (2) that the disclosure or discovery may be had only on specified terms and
     conditions, including a designation of the time or place;
     (3) that the discovery may be had only by a method of discovery other than that
     selected by the party seeking discovery;
     (4) that certain matters not be inquired into, or that the scope of the disclosure or
     discovery be limited to certain matters;
     (5) that discovery be conducted with no one present except persons designated by the
     (6) that a deposition, after being sealed, be opened only by order of the court;
     (7) that a trade secret or other confidential research, development, or commercial
     information not be revealed or be revealed only in a designated way; and
     (8) that the parties simultaneously file specified documents or information enclosed in
     envelopes to be opened as directed by the court.
If a motion for a protective order is denied in whole or in part, the court may, on such
     terms and conditions as are just, order that any party or other person provide or permit
     discovery. The provisions of Rule 37(a)(4) apply to the award of expenses incurred in
     relation to the motion.
Notes on Rule 26 (b) and 26(c):
   - To what extent do we want to protect personally private information and
       professional private information of lawyers – these are two different questions.
   - What about for innocent third parties? In the Jones case, the court was willing to
       impose certain amount of protection and require showing of good faith. The court
       also screened and protected the identities of the parties. If there was a good faith
       showing and attempts to protect identities, then the parties will have to answer.
   - If the question bears on the ability of the party to answer the claim, then the judge
       will allow it. How relevant is the information?
   - How central is the information to the claim? Is there other proof available? How
       important is the case for litigation in general or for the public? Is it fair to the
       petitioner? What is the policy incentive beyond the case? Weigh the extent of the
       harm to the benefit of the parties?

Hickman v. Taylor – privilege and he genesis of Rule 26(b)(3):
Basic facts:
    - There was no prior Rule 26b3 to protect attorney work-product, but it produced
       the rule.
    - A tugboat sunk and no one was sure why. The attorney privately interviewed
       some people and in discovery the defendants asks for notes and recollections of
       the private conversations of the lawyer.
    - Plaintiff argued the lawyer’s conversations were covered by attorney-client
       privilege and that if not it puts an undue burden on individual clients and could be
       used wrongly for impeachment of witnesses.
    - How much do the lawyers have to divulge?
    - District Court decides to be strict textualist and order discovery. Court of Appeals
       reverses and the SC upholds.
Why Was it decided this way:
    - Court was concerned about giving files because there wasn’t enough of a need –
       the defendants could have talked to the same people and the other side just
       admitted they wanted it as back up to their own files.
    - Court also worried lawyers would be harmed in the process if they could not write
       things down.
    - It would also harm the parties by forcing them to reveal strategies and legal
       theories because discovery is only supposed to be about facts. It would also drag
       discovery on forever because facts are intermixed with strategy.
Extent of privilege:
    - Strategies and facts should be distinguished.
    - The protection of work-product is not absolute, but it is higher than protect third
    - Not everything in Hickman is in 26(b)(3). It is restricted to documents and things
       – not thoughts or legal theories although there are ways of drawing the theories
       out, like in interrogatories. Idea is to protect property of the lawyer
       (interrogatories, lawyer can respond, not produce privately written things).
   -    Anticipation of ligitation doesn’t have to be for the particular litigation of the
    - Party can still get the same information by repeating interviews assuming they’re
        still around.
    - Other legal things – such as motion to dismiss or interrogatories will help the
        parties get at the legal theories in mind.
Why ban strategic information?
    - encourage own thinking and work.
    - Will cause work to be done sloppily.
Why allow it?
    - Avoids duplication of work.
    - Allowing privilege may encourage document laundering in an extreme case.
1. What if Buss wanted to find out what she said to opposing counsel in an interview
while incapacitated? What if there’s overlap between legal property of the other side and
your property. She could get her statement back per 26b(3), 2nd paragraph.
2. What if Helmholz was in the car with Sunstein and he made a statement to Sunstein’s
counsel? Could Buss obtain this information? Helmholz could get the statement, and he
could give it to Buss if he wanted to do so. If Helmholz already had the info, she could
subpoena Helmholz to obtain the statement.
3. In Hickman, party could get list of witnesses to event or those interviewed, or list of
defects in ship given by other witnesses. Could not get statements made to lawyer and
written down by lawyer.

   - Must be brought in to examine facts & reach conclusions of litigation.
   - There is lots of expense in experts, also strategic information, and that can turn
      the expert’s work product privileged.
   - Automatic disclosure allows each side to depose the other side’s expert, but this
      wasn’t always the case.
   - Experts that are going to testify are usually protected, but there are exceptions.
   - Fee shifting with experts – you have to pay for your own, but if you’re using the
      other side’s because of exceptional circumstances, you have to pay.

Rule 26(b)(4) Trial Preparation: Experts
   (A) A party may depose any person who has been identified as an expert whose
       opinions may be presented at trial. If a report from the expert is required under
       subdivision (a)(2)(B), the deposition shall not be conducted until after the report
       is provided.
   (B) A party may, through interrogatories or by deposition, discover facts known or
       opinions held by an expert who has been retained or specially employed by
       another party in anticipation of litigation or preparation for trial and who is not
       expected to be called as a witness at trial, only as provided in Rule 35(b) or upon
       a showing of exceptional circumstances under which it is impracticable for the
       party seeking discovery to obtain facts or opinions on the same subject by other
    (C) Unless manifest injustice would result, (i) the court shall require that the party
        seeking discovery pay the expert a reasonable fee for time spent in responding to
        discovery under this subdivision; and (ii) with respect to discovery obtained under
        subdivision b4B of this rule the court shall require the party seeking discovery to
        pay the other party a fair portion of the fees and expenses reasonably incurred by
        the latter party in obtaining facts and opinions from the expert.
Rule 26 (b) (5) Claims of Privilege or Protection of Trial preparation Materials.
When a party withholds information otherwise discoverable under these rules by
claiming that it is privileged… the party shall make the claim expressly and shall describe
the nature of the documents… or things not provided without revealing information itself
privileged or protected, so that other parties can assess the applicability of the privilege or

Notes and Cases:

Thompson v. The Haskell Co.
D wants psychologist’s report from P. Weakness in writing of (b)(3) and (b)(4) in that
   (b)(3) covers documents & tangible things, which may include those of an expert.
   Court allows, because it’s very important, was done right after harassment, and the
   information is not accessible any other way. Couldn’t have done their own
   investigation at the time, even if they were anticipating litigation, because until
   litigation starts, there’s no mechanism to force a pre-party to subject herself to your
   expert’s examination.

D has 2 reasons for getting P’s expert’s report. (1) not an expert & found facts – court
   says he was an expert, requires (a) expertise, and (b) brought in for evaluation. (2)
   exceptional circumstances: it may be the only way to get the info now, but it wasn’t
   then. Their own fault for not examining. Maybe they didn’t know they needed an
   inspection? What if they didn’t? Maybe they should have as a matter of course kept
   track of their own equipment & shipments. Court did allow some discovery: of info
   produced for expert by others that would otherwise have been discoverable – i.e.
   documents given to expert.

When Discovery Goes Bad:

Rule 26(g) – Signing of Disclosures, Discovery Requests, Responses, and Objections
(1) Every disclosure made pursuant to subdivision (a) (1) or subdivision (a)(3) shall be
    signed by at least one attorney of record in the attorney’s individual name, whose
    address shall be stated. An unrepresented party shall sign the disclosure and state the
    party’s address. The signature of the attorney or party constitutes a certification that
    to the best of the signer’s knowledge, information, and belief formed after a
    reasonable inquiry, the disclosure is complete and correct as of the time it is made.

(2) Every discovery request, response, or objection made by a party represented by an
    attorney shall be signed by at least one attorney of record in the attorney’s individual
   name, whose address shall be state. An unrepresented party shall sign the request,
   response, or objection and state the party’s address. The signature of the attorney or
   party constitutes a certification that to the best of the signer’s knowledge,
   information, and belief, formed after a reasonable inquiry, the request, response, or
   objection is:

   (A) consistent with these rules and warranted by existing law or a good faith
   argument for the extension, modification, or reversal of existing law;

   (B) not interposed for any improper purpose, such as to harass or to cause
   unnecessary delay or needless increase in the cost of litigation; and

   (C) not unreasonable or unduly burdensome or expensive, given the needs of the
   case, the discovery already had in the case, the amount in controversy, and the
   importance of the issues at stake in the litigation.
    no parallel in Rule 11 for proportionality

   If a request, response, or objection is not signed, it shall be stricken unless it is signed
   promptly after the omission is called to the attention of the party making the request,
   response, or objection, and a party shall not be obligated to take any action with
   respect to it until it is signed.

(3) If without substantial justification a certification is made in violation of the rule, the
    court, upon motion or upon its own initiative, shall impose upon the person who made
    the certification, the party on whose behalf the disclosure request, response, or
    objection is made, or both, an appropriate sanction, which may include an order to
    pay the amount of the reasonable expenses incurred because of the violation,
    including a reasonable attorney’s fee.
Note: Court must impose sanctions if it finds a violation under this rule.

Rule 37 – Failure to Make or Cooperate in Discovery: Sanctions

(a) Motion for Order Compelling Disclosure or Discovery
A party, upon reasonable notice to other parties and all persons affected thereby, may
    apply for an order compelling disclosure or discovery as follows:
(1) Appropriate Court
An application for an order to a party shall be made to the court in which the action is
    pending. An application for an order to a person who is not a party shall be made to
    the court in the district where the discovery is being, or is to be, taken.
(2) Motion
(A) If a party fails to make a disclosure required by Rule 26(a), any other party may
    move to compel disclosure and for appropriate sanctions. The motion must include a
    certification that the movant has in good faith conferred or attempted to confer with
    the party not making the disclosure in an effort to secure the disclosure without court
(B) If a deponent fails to answer a question propounded or submitted under Rules 30 or
    31, or a corporation or other entity fails to make a designation under Rule 30(b)(6) or
     31(a), or a party fails to answer an interrogatory submitted under Rule 33, or if a
     party, in response to a request for inspection submitted under Rule 34, fails to respond
     that inspection will be permitted as requested, the discovering party may move for an
     order compelling an answer, or a designation, or an order compelling inspection in
     accordance with the request. The motion must include a certification that the movant
     has in good faith conferred or attempted to confer with the person or party failing to
     make the discovery in an effort to secure the information or material without court
     action. When taking a deposition on oral examination, the proponent of the question
     may complete or adjourn the examination before applying for an order.
(3) Evasive or Incomplete Disclosure, Answer, or Response
For purposes of this subdivision an evasive or incomplete disclosure, answer or response
is to be treated as a failure to disclose, answer, or respond.
(4) Expenses and Sanctions
(A) If the motion is granted or if the disclosure or requested discovery is provided after
     the motion was filed, the court shall, after affording an opportunity to be heard,
     require the party or deponent whose conduct necessitated the motion or the party or
     attorney advising such conduct or both of them to pay to the moving party the
     reasonable expenses incurred in making the motion, including attorney’s fees, unless
     the court finds that the motion was filed without the movant’s first making a good
     faith effort to obtain the disclosure or discovery without court action, or that the
     opposing party’s nondisclosure, response, or objection was substantially justified, or
     that other circumstances make an award of expenses unjust.
(B) If the motion is denied, the court may enter any protective order authorized under
     Rule 26(c) and shall, after affording an opportunity to be heard, require the moving
     party or deponent who opposed the motion the reasonable expenses incurred in
     opposing the motion, including attorney’s fees, unless the court finds that the making
     of the motion was substantially justified or that other circumstances make an award of
     expenses unjust.
(C) If the motion is granted in part and denied in part, the court may enter any protective
     order authorized under Rule 26(c) and may, after affording an opportunity to be
     heard, apportion the reasonable expenses incurred in relation to the motion among the
     parties and persons in a just manner.

(b) Failure to Comply with Order
(1) Sanctions by Court in District Where Deposition Is Taken
If a deponent fails to be sworn or to answer a question after being directed to do so by the
     court in the district in which the deposition is being taken, the failure may be
     considered a contempt of that court.
(2) Sanctions by Court in Which Action Is Pending
If a party or an officer, director, or managing agent of a party or a person designated
     under Rule 30(b)(6) or 31(a) to testify on behalf of a party fails to obey an order to
     provide or permit discovery, including an order made under subdivision (a) of this
     rule or Rule 35, or if a party fails to obey an order entered under Rule 26(f), the court
     in which the action is pending may make such orders in regard to the failure as are
     just, and among others the following:
   (A) An order that the matters regarding which the order was made or any other
   designated facts shall be taken to be established for the purposes of the action in
   accordance with the claim of the party obtaining the order;

   (B) An order refusing to allow the disobedient party to support or oppose designated
   claims or defenses, or prohibiting that party from introducing designated matters in

   (C) An order striking our pleadings or parts thereof, or staying further proceedings
   until the order is obeyed, or dismissing the action or proceeding or any part thereof,
   or rendering a judgment by default against the disobedient party;

   (D) In lieu of any of the foregoing orders or in addition thereto, an order treating as a
   contempt of court the failure to obey any orders except an order to submit to a
   physical or mental examination;

   (E) where a party has failed to comply with an order under Rule 35(a) requiring that
   party to produce another for examination, such orders as are listed in paragraphs (A),
   (B), and (C) of this subdivision, unless the party failing to comply shows that that
   party is unable to produce such person for examination.

   In lieu of any of the foregoing orders or in addition therero, the court shall require the
   party failing to obey the order or the attorney advising that party or both to pay the
   reasonable expenses, including attorney’s fees, caused by the failure, unless the court
   finds that the failure was substantially justified or that other circumstances make an
   award of expenses unjust.

(c) Failure to Disclose; False or Misleading Disclosure; Refusal to Admit
(1) A party that without substantial justification fails to disclose information required by
    Rule 26(a) or 26(e)(1) is not…, unless such failure is harmless, permitted to use as
    evidence at a trial, at a hearing, or on a motion any witness or information not so
    disclosed. In addition to or in lieu of this sanction, the court, on motion and after
    affording an opportunity to be heard, may impose other appropriate sanctions. In
    addition to requiring payment of reasonable expenses, including attorney’s fees,
    caused by the failure, these sanctions may include any of the actions authorized under
    subparagraphs (A), (B), and (C) of subdivision (b)(2) of this rule and may include
    informing the jury of the failure to make the disclosure.
(2) If a party fails to admit the genuineness of any document or the truth of any matter as
    requested under Rule 36, and if the party requesting the admissions thereafter proves
    the genuineness of the document or the truth of the matter, the requesting party may
    apply to the court for a n order requiring the other party to pay the reasonable
    expenses incurred in making that proof, including reasonable attorney’s fees. The
    court shall make the order unless it finds that (a) the request was held objectionable
    pursuant to Rule 36(a), or (B) the admission sought was of no substantial importance,
    or (C) the party failing to admit had reasonable ground to believe that the party might
    prevail on the matter, or (d) there was other good reason for the failure to admit.
(d) Failure of Party to Attend at Own Deposition or Serve Answers to
Interrogatories or Respond to Request for Inspection
If a party or an officer, director, or managing agent of a party or a person designated
     under Rule 30(b)(6) or 31(a) to testify on behalf of a party fails (1) to appear before
     the officer who is to take the deposition, after being served with a proper notice, or
     (2) to serve answers or objections to interrogatories submitted under Rule 33, after
     proper service of the interrogatories, or (3) to serve a written response to a request for
     inspection submitted under Rule 34, after proper service of the request, the court in
     which the action is pending on motion may make such orders in regard to the failure
     as are just, and among others it may take any action authorized under subparagraphs
     (A), (B), and (C) of subdivision (b)(2) of this rule. Any motion specifying a failure
     under clause (2) or (3) of this subdivision shall include a certification that the movant
     has in good faith conferred or attempted to confer with the party failing to answer or
     respond in an effort to obtain such answer or response without court action. In lieu of
     any order or in addition thereto, the court shall require the party failing to act or the
     attorney advising that party or both to pay the reasonable expenses, including
     attorney’s fees, caused by the failure unless the court finds that the failure was
     substantially justified or that other circumstances make an award of expenses unjust.
(e) Abrogated
(f) Repealed

(g) Failure to Participate in the Framing of a Discovery Plan
If a party or a party’s attorney fails to aprticipate in good faith in the development and
     submission of a proposed discovery plan as required by Rule 26(f), the court may,
     after opportunity for hearing, require such party or attorney to pay any other party the
     reasonable expenses, including attorney’s fees, caused by the failure.

Discovery Gone Bad – cases & notes
   - Clearly an obligation to try to work things out.
   - Problem: Parties are often financially mismatched. Party can give too little
       discovery or too much discovery.
   - A party’s failure of disclosure can be sanctioned by excluding the evidence, or
       informing jury of failure, etc…
   - Much more detail in allowed remedies for discovery abuse compared to pleading
       abuse. Maybe details empower courts?
   - How much do we want district courts managing the discovery process?
   - Courts have power to control divery under 26b2 and 26c.
       Judicial involvement is a double edged sword
           o Can help solve problems.
           o Can also encourage bickering.
   - Discovery tends to promote settlement because:
       1) Develop a shared view of the case
       2) Forces collegial (often face-to-face) interactions with adversary
   - There are four ways to look improving discovery: do we want more active judicial
       involvement? Do we want to make sanctions heavy so parties will work things
       out? Do we want a different set of rules that are more specific in terms of what
       you can have access to in discovery? Forget about trying to fix it because you
       can’t ever get facts through adversary system?
   -   Jones v. Clinton: Judge Wright imposed sanctions after case ended for Clinton
       lying during depositions.

Chudasama v. Mazda Motor Corp. p.549
  - District Judge allows discovery to proceed totally unchecked, refuses to rule on
     any of D’s protective orders or motions, then imposes sanctions including ruling
     against D!
  - Quotes:
         o “This case illustrates the mischief that results when a district court
              effectively abdicates its responsibility to manage a case involving
              contentious litigants and permits excessive and dilatory discovery tactics
              to run amok.”
         o “The decision whether to impose sanctions under Rule 26(g)(3) is not
              discretionary. Once the court makes the factual determination that a
              discovery filing was signed in violation of the rule, it must impose an
              appropriate sanction.”
  - What if there was just a failure to manage, but no draconian sanctions? Still want
     district court to manage? It is hard to regulate abuses, since discovery often
     doesn’t go up on appeal. So how do you force district courts to manage? In this
     case, the appellate court uses a severe rebuke to try to deter in the future and also
     redirects the case to a different judge.

III. Disposition Outside of Trial
    - Settlement: worked it out and don’t want a trial
    - Preliminary Injunction: can’t wait for a trial.
    - Summary Judgment: Don’t need a trial.
    - Timeline:
           o Filing of Complaint, Answer, Discovery, Trial.
           o Settlements and preliminary injunctions happen between discovery and
           o Motion for summary judgment will happen before trial, but after
           o Sometimes preliminary injunctions will bring the trial earlier.


Rule 41 – Dismissal of Actions

(a) Voluntary Dismissal: Effect Thereof
(1) By Plaintiff; by Stipulation
Subject to the provisions of Rule 23(e) [class action], of Rule 66 [receivership], and of
any statute of the United States, an action may be dismissed by the plaintiff without order
of court (i) by filing a notice of dismissal at any time before service by the adverse party
of an answer or of a motion for summary judgment, whichever first occurs, or (ii) by
filing a stipulation of dismissal signed by all parties who have appeared in the action.
Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without
prejudice, except that a notice of dismissal operates as an adjudication upon the merits
when filed by a plaintiff who has once dismissed in any court of the United States or of
any state an action based on or including the same claim.
(2) By Order of the Court
Except as provided in paragraph (1) of this subdivision of this rule, an action shall not be
dismissed at the plaintiff’s instance save upon order of the court and upon such terms and
conditions as the court deems proper. If a counterclaim has been pleaded by a defendant
prior to the service upon the defendant of the plaintiff’s motion to dismiss, the action
shall not be dismissed against the defendant’s objection unless the counterclaim can
remain pending for independent adjudication by the court. Unless otherwise specified in
the order, a dismissal under this paragraph is without prejudice.

(b) Involuntary Dismissal: Effect Thereof
For failure of the plaintiff to prosecute or to comply with these rules or any order of
court, a defendant may move for dismissal of an action or of any claim against the
defendant. Unless the court in its order for dismissal otherwise specifies, a dismissal
under this subdivision and any dismissal not provided for in this rule, other than a
dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under
Rule 19, operates as an adjudication upon the merits.

Rule 68 – Offer of Judgment
At any time more than 10 days before the trial begins, a party defending against a claim
may serve upon the adverse party an offer to allow judgment to be taken against the
defending party for the money or property or to the effect specified in the offer, with
costs then accrued. If within 10 days after the service of the offer the adverse party serves
written notice that the offer is accepted, either party may then file the offer and notice of
acceptance together with proof of service thereof and thereupon the clerk shall enter
judgment. An offer not accepted shall be deemed withdrawn and evidence thereof is not
admissible except in a proceeding to determine costs. If the judgment finally obtained by
the offeree is not more favorable than the offer, the offeree must pay the costs incurred
after the making of the offer. The fact that an offer is made but not accepted does not
preclude a subsequent offer. When the liability of one party to another has been
determined by verdict or order or judgment, but the amount or extent of the liability
remains to be determined by further proceedings, the party adjudged liable may make an
offer of judgment, which shall have the same effect as an offer made before trial if it is
served within a reasonable time not less than 10 days prior to the commencement of
hearings to determine the amount or extent of liability.

Notes and Cases:
- Judges often play an active role in settlement; try to get it to happen before trial.
    - can give parties a sense of the strength of their cases
    - can act as mediators
- Troubled by court involvement in settlement?
    - Worried about judge encouraging an incorrect evaluation by the parties
    - Worry about including evidence improperly, but lots of evidence is excluded to
    prevent jury error where we would trust judges, so it may not be that unjust to allow a
    judge to decide on it beforehand.
    - Worried about distorting role of the judge.
    - May pressure people to settle unfairly.
    - Generally, the judge who deals with settlement will not also be the fact finder later
    - Judge should not have an interest in making cases go away
- Why do we require court approval of settlements in class actions and minors.
             o class actions involve individuals who are not part of the action, but may
                have interests as a class. The representatives may not have identified all
                the interests. Unfair because it has a binding effect on many people.
             o minors because contracts entered into by minors are voidable, even when
                they’re represented. Also, there is confidence that adults do a good job of
                identifying their own interests, but minors may not be able to do so.
- Hard to argue that for adult individuals there is any public interest in forcing individuals
    to continue with litigation.
- Pre-trial judgment has some conflict because there’s public interest re: future plaintiffs.
- Post-trial judgment has larger conflict because of public interest in precedent.
- Most settlements come to the middle – hardly ever zero-sum and negotiations are also
about terms of settlements.

Finality of settlement agreements
   - Settlements are treated as contract negotiations, and are generally not
       enforceable in court, unless it leads to an order of dismissal including terms
       or including continuing jurisdiction. Court may also adopt terms as a
       consent decree and can enforce breaches as contempt.
   - Consent decree is most heavy duty version of the settlement – court ordered. If
       there is a violation, can be held in contempt.
   - Generally courts don’t assess the merits of settlement.
   - Parties can agree and contract that the court they originally sued in will maintain
       jurisdiction over the suit.

Before Filing
Strictly contractual – effectiveness depends on drafting of settlement K in defining the
    scope of the threatened lawsuit

After Filing
Agreement to voluntary dismissal under Rule 41(a) can be enforced only with an
   affirmative defense of “accord & satisfaction” which has to be pleaded in the
   subsequent case.
Even if dismissed with prejudice, doubt as to whether future action can be enforced:
   Langley v. Jackson State University (5th Cir., 1994): P sues again a few years after
   settlement alleging new discrimination and failure to abide by the settlement. Held
   the district court had no federal jurisdiction over the settlement K – should be done in
   Board of Trustees v. Madison Hotel, Inc. (D.C. Cir., 1996): settlement allowed an
   audit and payment of amounts found to be owing. P sued again for D’s failure to pay.
   Held jurisdicaion found, but on the basis of questions of interpretation of federal
   pension law – not on contract violation.
Three solutions:
   (1) Involuntary Dismissal under rule 41(b) constitutes an adjudication on the merits
   and future suits are barred under the court’s (broad) doctrines of former adjudication
   – bars all related claims.
   (2) incorporate jurisdictional clause into agreement,
   (3) enter settlement as part of an order (consent decree) means breach enforceable as

Contracting for Confidentiality

   -   As long as it encourages settlement, it’s a good thing
   -   Not allowing confidentiality allows blackmail by the bringing of suits because of
       bad publicity
   -   In some sense, settlement possibilities are increased with the number of issues on
       the table (more grounds for negotiation)
   -   Avoidance of duplicative discovery (weak argument).

  -    If there is a wrong, worry about ability to hide it as each individual is paid off
  -    Can’t have witnesses contract not to testify in general
  -    Innocent third parties are affected by confidentiality agreements.
  -    There may be a broader public interest at stake or related cases that will be
       harmed by silence.
   -   Other people in the case might be affected and harmed also – multiple victims.

Kalinauskas v. Wong
   - P filed sexual harassment suit against D, seeks to depose a previous employee
      who settled a similar suit with same D and signed a confidential settlement
      agreement. (1) Agreement itself provided for court ordered exceptions; (2) the
      interests of justice and harm done to her weigh more heavily with subsequent
      plaintiffs alleging the same behavior; (3) enforcing would seem to condone
      buying a witness’ silence; (4) deposition is likely to lead to relevant evidence that
      would otherwise be discoverable by looking at complaint which was open in
      court; (5) “where an appropriate modification of a protective order or
      confidentiality agreement can place private litigants in a position they would
      otherwise reach only after repetition of another’s discovery, such modification
      can be denied only where it would tangibly prejudice substantial rights of the
      party opposing modification.
   -   Held deposition allowed on historical conditions of her employment &
       harassment, but not regarding “any substantive terms of the Caesars-Thomas
       settlement agreement.”

   -   Procedural posture: motion for a protective order preventing a deposition of
       previous plaintiff whose settlement agreement contained a confidentiality clause
   -   Usually, when a term of a K is contrary to public policy, it will excise the term,
       rather than invalidating the entire K.
   -   Limitations on what Thomas has to reveal – not terms of her settlement. Why
   -   Reveals the defendants’ assessment of the strength of their case.
   -   Makes it less likely that people will enter into settlement negotiations
   -   Doesn’t really affect the underlying facts (sort of work-product like)

Contracting for Vacatur
   - Why would you settle after you win? Might lose on appeal, might avoid delay
      (litigation costs – not just financial)
   - Why would a winning party object to vacatur? Because the precedent may be
   - For the loser, shouldn’t get the legal advantage of a victory on appeal by vacating
      a valid judgment below.

Neary and Bancorp
      Neary v. University of California (CA 1992) (cattle rancher libel action) Y595
      a. The court agreed to vacate the judgment of the trial court because parties
          agreed to settle while the appeals were pending.
      b. The court felt that it existed to do what the litigants wanted to reach an
          agreement. Both sides really wanted the vacatur.
      c. The dissent was worried about what this implied for general regard of trial
          court judgments and discouraging prejudgment settlements.
      d. Here, the parties were private, and no public issues were implicated. Also, the
          case had dragged out over 13 years. Application of uncontroversial law to
          complicated facts.
      e. No important legal issue at stake
      Post-judgment settlement which demands vacatur of the decision may be
      allowed absent a showing of extraordinary circumstances
      U.S. Bancorp Mortgage Co. v. Bonner Mall (US 1994) Y598
   - Parties reach agreement on rescheduling debt after judgment of CofA and after
      SC granted cert. Want SC to vacate judgment of appeals court.
   - Court refuses because 1) an important legal issue involved that needs to be
      resolved (bankruptcy reform act and new value exception). 2) Public policy issue
      involved because judgments are public, not property of litigants. 3) Judgments
      are presumptively correct, not appropriate to discard judgments except on merits.
      4) Disturbs judicial process. 5) May deter settlement at earlier stage. BUT, 5)
       Vacatur must be granted when a controversy becomes moot for no reason caused
       by the parties, or when mootness results from the unilateral action of the party
       who prevailed in lower courts. (Remittitur and additur are similar.)

   -   Remember that they are state vs. federal which may have different rules
   -   Both cases consider whether a settlement between parties of a case with a pending
       appeal can direct the court to vacate a lower court’s judgment if it is included as a
       term of the settlement.
    - Is the court’s role to resolve disputes or to search for legal truth?
    - Will allowing post-trial settlement reduce the frequency of pre-trial settlement?
    - Should the public interest in the legal outcome outweigh the right of the parties to
    - Can parties to a dispute ever dictate specific legal actions from a court?

Courts agree on issues, but Neary believes presumption is to allow parties to settle with
possible exception in cases of a “specific, demonstrable, well established, and
compelling” public interest. U.S. Bancorp, by contrast, takes the opposite approach,
holding that the strong default is against vacatur, and dismissing the case as moot.

Anything different about the judgments at stake? Bancorp will definitely affect other
   people because of broad precedential authority, but Neary is much more fact-specific.

What about the integrity of the court?
  - diverts power from courts
  - difference between deciding a set of facts and deciding a legal dispute

Scalia suggests that instead of vacaturs, case can be sent to district court under Rule 60(b)
   (court can give relief from its own judgment) for the district court to vacate its own
   judgment. Why is this better?
   - Less precedential value.
   - Maybe perceptual difference is important too, since there is a preservation of the
   District Court’s authority.

Real life factors: What are the parties’ agreements? What is the precedential value?

Separating Lawyer & Client
Evans v. Jeff D.
Legal Aid attorney brings suit against state, and D offers P a settlement that gives
   everything P wants, but offers no attorney’s fees (even though they’d be entitled to
   them under §1983.). Attorney brings suit to try to get court to add fees based on 2
   arguments: fee act should not be read to allow coercive waiver and settlement should
   be rejected as unfair on these grounds. Lawyer has obligation to accept best
   settlement for clients.
2 issues:
    (1) fee act should not allow this kind of coercive waiver
        - argument is that if fees were supposed to be awarded in the court’s discretion,
            they don’t have the ability to trade them away
        - the purpose of the fee act is to make sure that there will be attorneys who will
            take these cases – isn’t this guaranteeing that lawyers won’t take these cases
            in the first place. The court suggests that the possibility of attorneys drying up
            will be remote.
        - on the other hand, it does give the attorneys something to bargain with
        - seems like this would be a legislative change
    (2) court’s authority to use its discretion when it feels the settlement is unfair.
        - what’s the court supposed to be assessing: fairness to who?
            - to the class: very fair, since they’re definitely getting something they might
            not otherwise get – was there quid pro quo? Yes.
- A lot of attorneys are writing they won’t accept contracts that don’t pay fees but this is

Fee Shifting by Statute or by Rejecting Settlement
   - Sometimes statutorily mandated fee shifting (e.g. §1983 (see Evans above) &
      some other Civil Rights claim
   - Provides extra incentives to lawyers to bring these suits
   - Also, Rule 68 imposes subsequent costs if a party refuses settlement and wins less
      than the offered amount in judgment.
   - Generally there is not as much fee shifting in the US.

Preliminary Relief

Rule 64 – Seizure of Person or Property
At the commencement of and during the course of an action, all remedies providing for
    seizure of person or property for the purpose of securing satisfaction of the judgment
    ultimately to be entered in the action are available under the circumstances and in the
    manner provided by the law of the state in which the district court is held, existing at
    the time the remedy is sought, subject to the following qualifications: (1) any existing
    statute of the United States governs to the extent to which it is applicable; (2) the
    action in which any of the foregoing remedies is used shall be commenced and
    prosecuted or, if removed from a state court, shall be prosecuted after removal,
    pursuant to these rules. The remedies thus available include arrest, attachment,
    garnishment, replevin, sequestration, and other corresponding o==r equivalent
    remedies, however designated and regardless of whether by state procedure the
    remedy is ancillary to an action or must be obtained by an independent action.

Rule 65 – Injunctions

(a) Preliminary Injunction
(1) Notice
No preliminary injunction shall be issued without notice to the adverse party.
(2) Consolidation of Hearing with Trial on Merits
Before or after the commencement of the hearing of an application for a preliminary
    injunction, the court may order the trial of the action on the merits to be advanced and
    consolidated with the hearing of the application. Even when this consolidation is not
    ordered, any evidence received upon an application for a preliminary injunction
    which would be admissible upon the trial on the merits becomes part of the record on
    the trial and need not be repeated upon the trial. This subdivision (a)(2) shall be so
    construed and applied as to save to the parties any rights they may have to trial by

(b) Temporary Restraining Order; Notice; Hearing; Duration
A temporary restraining order may be granted without written or oral notice to the
    adverse party or that party’s attorney only if (1) it clearly appears from specific facts
    shown by affidavit or by the verified complaint that immediate and irreparable injury
    loss or damage will result to the applicant before the adverse party or that party’s
    attorney can be heard in opposition, and (2) the applicant’s attorney certifies to the
    court in writing the efforts, if any, which have been made to give the notice and the
    reasons supporting the claim that notice should not be required. Every temporary
    restraining order granted without notice shall be indorsed with the date and hour of
    issuance; shall be filed forthwith in the clerk’s office and entered of record; shall
    define the injury and state why it is irreparable and why the order was granted
    without notice; and shall expire by its own terms within such time after entry, not to
    exceed 10 days, as the court fixes, unless within the time so fixed the order, for good
    cause shown, is extended for a like period or unless the party against whom the order
    is directed consents that it may be extended for a longer period. The reasons for the
    extension shall be entered of record. In case a temporary restraining order is granted
    without notice, the motion for a preliminary injunction shall be set down for hearing
    at the earliest possible time and takes precedence of all matters except older matters
    of the same character; and when the motion comes on for hearing the party who
    obtained the temporary restraining order shall proceed with the application for a
    preliminary injunction and, if the party does not do so, the court shall dissolve the
    temporary restraining order. ON 2 days notice to the party who obtained the
    temporary restraining order without notice or on such shorter notice to that party as
    the court may prescribe, the adverse party may appear and move its dissolution or
    modification and in that event the court shall proceed to hear and determine such
    motion as expeditiously as the ends of justice require.

(c) Security
No restraining order or preliminary injunction shall issue except upon the giving of
    security by the applicant, in such sum as the court deems proper, for the payment of
    such costs and damages as may be incurred or suffered by a ny party who is found to
    have been wrongfully enjoined or restrained. No such security shall be required of the
    United States or of an officer or agency thereof.
The provisions of Rule 65.1 apply to s surety upon a bond or undertaking under this rule.
(d) Form and Scope of Injunction or Restraining Order.
Every order granting an injunction and every restraining order shall set forth the reasons
    for its issuance; shall be specific in terms; shall describe in reasonable detail, and not
    by reference to the complaint or other document, the act or acts sought to be
    restrained; and is binding only upon the parties to the action, their officers, agents,
    servants, employees, and attorneys, and upon those persons in active concert or
    participation with them who receive actual notice of the order by personal service or

(e) Employer and Employee; Interpleader; Constitutional Cases
These rules do not modify any statute or the United States relating to temporary
    restraining orders and preliminary injunctions in actions affecting employer and
    employee; or the provisions of Title 28, U.S.C., §2361, relating to preliminary
    injunctions in actions of interpleader or in the nature of interpleader; or Title 28,
    U.S.C., §2284, relating to actions required by Act of Congress to be heard and
    determined by a district court of three judges.

Preliminary Relief – cases & notes
   - In some circumstances, you can get a TRO without input from party. Is this
      necessarily a due process violation? There is a requirement for irreparable harm
      of a sufficiently great magnitude (fits into cost of add’l process – big costs with
      big stake) and can only last 10 days (minimizes interest at stake).
   - Preliminary relief will often push parties to settle.

William Inglis & Sons Baking Co v. ITT Continental Baking Co. p. 364
   - Antitrust law at issue here – Inglis’ competitors were engaged in predatory pricing
       and a valid defense is good faith trying to survive by lowering prices.
   - Inglis filed prelimary injunction motion three years after starting litigation.
   - If the court is convinced it will harm Inglis to not give the order, why doesn’t it
       give the order? There must be a reasonable cause and a chance that the plaintiff
       will win the case.
   - 4 part District Court test:
           o Plaintiff must suffer irreparable damage
           o Likely to prevail on the merits
           o Balance that the benefits to the plaintiff will not be outweighed by the
               harms to the defendants.
           o Must be in the public interest.
   - The 9th Circuit applied a different test – application of test is “abuse of
       discretion”, but choice of test is “de novo” and although found no abuse, found
       that there was a standard the DC did not use:
           o Plaintiff must prove either a combination of probable success and the
               possibility of irreparable injury or that serious questions are raised and the
               balance of hardships tips sharply in his favor. It is not necessary that the
               moving party be reasonably certain to succeed on the merits. If the harm
               that may occur is sufficiently serious, it is only necessary that there be a
               fair chance of success on the merits.

Fuentes – Replevin (seizure)
   - P (seller of goods) believes that payments are not being made by D (D said there
      was a dispute and she stopped paying), can get bond from state and Sheriff will
      recover property without any appearance by D or hearing.
   - 14th amendment protection if:
      (1) state action – Clerk signs off, Sheriff takes goods for private companies
      (2) deprivation of property – doesn’t really require full ownership (interest in
      possession can be enough)
      (3) without due process – not opportunity to respond – must decide what sort of
      due process is due. The form of the hearing was left up to the state to decide.
   - In adding due process protection, must consider:
      (1) cost of add’l process
      (2) increase in reliability
      (3) interest (potentially being denied) at stake
   - Court says it’s not enough to require posting of bond – not confident that it
      reflects a true assessment of the strength of their case, and even if it was, we’re
      not confident in a partisan evaluation of the strengths of a case.
   - The fact that there’s some screening going on lessens the marginal value of
      additional requirements in increasing reliability
   - The fact that the D can get the property back if they are right lessens to some
      extent the interest at stake (since it’s not permanently gone) – what it really likely
      to happen, though (replevin is almost certain to be the end of the story)

Practice on another case:
   - AA baby in White foster home for 2 years, then moved to AA foster home because
   of adoption policy:
   (1) irreparable harm – time without baby becomes increasingly harmful
   (2) likelihood to prevail – court decides yes
   (3) P help > D (agency) harm – D’s discretion interfered with
   (4) public interest – well-being of kid, effect on system

Summary Judgment

Rule 12(b) – Defenses & Answers – How presented
Every defense, in law or fact, to a claim for relief in any pleading, whether a claim,
counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive
pleading thereto if one is required, except that the following defenses may at the potion of
the pleader be made by motion:
    (1) lack of jurisdiction over the subject matter
    (2) lack of jurisdiction over the person
    (3) improper venue                                  Waived if not presented
                                                        in first response (see       NOT Waived if not
    (4) insufficiency of process                        12(g),(h)(1))                presented in first
                                                                                       response (see 12 (h)(2,3))
    (5) insufficiency of service of process
    (6) failure to state a claim upon which relief can be granted
    (7) failure to join a party under Rule 19
A motion making any of these defenses shall be made before pleading if a further
pleading is permitted. No defense or objection is waived by being joined with one or
more other defenses or objections in a responsive pleading or motion. If a pleading sets
forth a claim for relief to which the adverse party is not required to serve a responsive
pleading, the adverse party may assert at the trial any defense in law or fact to that claim
for relief. If, on a motion asserting the defense numbered (6) to dismiss for failure of the
pleading to state a claim upon which relief can be granted, matters outside the pleading
are presented to and not excluded by the court, the motion shall be treated as one for
summary judgment and disposed of as provided in Rule 56, and all parties shall be given
reasonable opportunity to present all material made pertinent to such a motion by Rule

Rule 56 – Summary Judgment

(a) For Claimant
A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a
    declaratory judgment may, at any time after the expiration of 20 days from the
    commencement of the action or after service of a motion for summary judgment by
    the adverse party, move with or without supporting affidavits for a summary
    judgment in the party’s favor upon all or any part thereof.

(b) For Defending Party
A party against whom a acclaim, counterclaim, or cross-claim is asserted or a declaratory
    judgment is sought may, at any time, move with or without supporting affidavits for a
    summary judgment in the party’s favor as to all or any part thereof.

(c) Motion and Proceedings Thereon
The motion shall be served at least 10 days before the time fixed for the hearing. The
    adverse party prior to the day of hearing may serve opposing affidavits. The judgment
    sought shall be rendered forthwith if the pleadings, depositions, answers to
    interrogatories and admissions on file, together with the affidavits, if any, show that
    there is no genuine issue as to any material fact and that the moving party is entitled
    to a judgment as a matter of law. A summary judgment, interlocutory in character,
    may be rendered on the issue of liability alone although there is a genuine issue as to
    the amount of damages.

(d) Case Not fully Adjudicated on Motion
If on motion under this rule judgment is not rendered upon the whole case or for all the
    relief asked and a trial is necessary, the court at the hearing of the motion, by
    examining the pleadings and the evidence before it and by interrogating counsel, shall
    if practicable ascertain what material facts exist without substantial controversy and
    what material facts are actually and in good faith controverted. It shall thereupon
    make an order specifying the facts that appear without substantial controversy,
   including the extent to which the amount of damages or other relief is not in
   controversy, and directing such further proceedings in the action as are just. Upon the
   trial of the action the facts so specified shall be deemed established, and the trial shall
   be conducted accordingly.

(e) Form of Affidavits; Further Testimony; Defense Required
Supporting and opposing affidavits shall be made on personal knowledge, shall set forth
    such facts as would be admissible in evidence, and shall show affirmatively that the
    affiant is competent to testify to the matters stated therein. Sworn or certified copies
    of all papers or parts thereof referred to in an affidavit shall be attached thereto or
    served therewith. The court may permit affidavits to be supplemented or opposed by
    depositions, answers to interrogatories, or further affidavits. When a motion for
    summary judgment is made and supported as provided in this rule, an adverse party
    may not rest upon the mere allegations or denials of the adverse party’s pleading, but
    the adverse party’s response, by affidavits or as otherwise provided in this rule, must
    set forth specific facts showing that there is a genuine issue for trial. If the adverse
    party does not so respond, summary judgment, if appropriate, shall be entered against
    the adverse party.
 requires personal knowledge in affidavits

(f) When Affidavits are Unavailable
Should it appear from the affidavits of a party opposing the motion that the party cannot
    for reasons stated present by affidavit facts essential to justify the party’s opposition,
    the court may refuse the application for judgment or may order a continuance to
    permit affidavits to be obtained or depositions to be taken or discovery to be had or
    may make such other order as is just.
 can respond to SJ motion by requesting more time to develop proof

(g) Affidavits Made in Bad Faith
Should it appear to the satisfaction of the court at any time that any of the affidavits
    presented pursuant to this rule are presented in bad faith or solely for the purpose of
    delay, the court shall forthwith order the party employing them to pay to the other
    party the amount of the reasonable expenses which the filing of the affidavits caused
    the other party to incur, including reasonable attorney’s fees, and any offending party
    or attorney may be adjudged guilty of contempt.

Summary Judgment – Cases & Notes

General Notes
12(b)(6) testing allegations against the law – can be sufficiency of a claim or a trickier
   question of “what is the law?” Look at facts and say: if these were true, would there
   still be a claim under the law? Is there still a legal claim?

Summary Judgment – is there enough on paper to go to a jury? Where the parties agree
on the facts, and ask for JMOL, these could almost always have been brought as 12(b)(6)
if the pleadings had contained enough information.
SJ is easier for D, since if they can eliminate any one element, they will win, but if P wins
on a single element, it just establishes that element for trial and still has to prove the rest.

The court can decide some pieces of the whole claim based on summary judgment.

Timing – plaintiffs can file 20 days after complaint, defendants can file at any time.

Hypothetical Example – Buss’ free speech meets the Dean in Police gear
- Buss sues Levmore under §1983 (acting under color of state law violating federal
    rights), claims that she was making speeches about how crappy Chicago winters are,
    and Dean F hauled her away in the middle of this rant.
    (1) (a) DF acting as dean of the law school (b) violated her 1st amendment rights
         - is this facially sufficient? No, since DF is not acting under color of state law –
         So motion to dismiss
    (2) (a) acting in his capacity as a Chicago Police Officer (night job?). (b) violated 1st
         amendment rights.
         - This is facially sufficient so no motion to dismiss. Levmore can challenge by (i)
         summary judgment can prove he’s not an officer, or (ii) Rule 11
         - If he files with SJ motion an affidavit that he’s not on the police force is that
         enough? This is enough, since if you have personal knowledge and can say what
         you know at trial, you can swear to things even if they are just a repetition of
         something in the pleadings.
         - If Buss responds with an affidavit saying “oh yes you do,” won’t be enough,
         since that would be a blank repetition of the complaint with no personal
         - What if affidavit says “he was wearing a uniform, had a gun & nightstick”?
         This will defeat the SJ motion, even if it seems unlikely.
         - What if Buss only responds that she will be able to raise credibility issues at
    trial? Not enough, generally won’t be able to overcome without some other evidence,
    even though it seems to question the facts (since you could question these facts
    anyway). However, there is some flexibility if there is some question about one
    side’s evidence or expert(s). More success with actual contrary evidence or expert.
         - What if Buss is back to assertion about his uniform, nightstick, etc., and
    Levmore brings employment records, W2, etc showing that he wasn’t employed by
    the police. Classical formulation would suggest that any evidence at all on one side
    can overcome summary judgment in the face of lots of opposing evidence. BUT,
    comparing an imbalance like a mound of solid documentary evidence against a single
         - What if he agrees that he was wearing the outfit, but shows that he rented the
    costume? Then the case turns on the strictly legal question of whether dressing as a
    police officer constitutes “acting under color of state law”.
         - What if there’s only an affidavit filed by Levmore saying: he does have a night
    job as a police officer, but he wasn’t acting as an officer, he was acting as the dean.
    Buss files nothing. SJ? He’s not claiming that Buss can’t show, he’s claiming he can
    show an affirmative defense.
Celotex v. Catrett – Asbestos case: transition of SJ to counterbalance limited pleading
   - Wife files suit against asbestos makers for her husband’s death. D moves for SJ,
       claims P can’t show that it was their asbestos. D includes appendices with
       interrogatory responses showing that she couldn’t prove exposure. P responds
       with a deposition from the decedent, a letter from an official, and a letter from the
       insurance company all “tending to establish that the decedent had been exposed to
       petitioner’s asbestos products.”
   - Why does the SC take the case? To determine whether the moving party under
       Rule 56 has to have affirmative proof negating the opponent’s claim.
   - If they had provided affirmative proof, what would it have looked like?
       Distribution data showing that decedent was nowhere near their asbestos. Instead,
       they just say that P can’t show that decedent was exposed.
   - Previously, Adikes had been interpreted to mean that the movant did have to
       provide affirmative support if it’s the other party’s version at trial – prove that you
       didn’t do the act in question, not just that the other side couldn’t prove that you
       did it.
   - Celotex represented a major shift in the use of SJ to that of a counterbalance to the
       limited requirements of pleading.
   - Whatever the rule is, is the evidence from the P in Celotex sufficient to overcome
       SJ? SC doesn’t answer, they just remand and say “figure out whether this is
   - Dissent agrees with legal standard, but thinks that in this case, D should have
       developed the record more clearly, so sufficiency of P’s response should not have
       been necessary to deny SJ. Dissent thinks that P’s response was adequate.

 Note about Celotex: it’s OK for defendant to either – prove that P’s claims are false;
  or show that P can’t prove their claim.
 Concern for new standard because the judge must decide the strength of the evidence
  now. Does this bias the judge if he will decide the case later? Is it good? If you
  allow judges to weigh evidence, then parties lose opportunities for trial. SJ good
  because if denied, it gives more info to the parties.

Different Standard for Bench vs. Jury Trials?
If a case is going to be a bench trial, should there be a different standard for SJ?
     it’s going to be tried by the same judge, should she have more discretion at SJ?
Con: no live witnesses at SJ, but what about where all the trial evidence is documents?
     There it might be OK, but if there are witnesses, we want the judge to be able to hear
Is there a reason to support a different standard for bench trials?
     - if they’ve already decided, they’re not likely to change their minds later

Should a judge just be able to hear evidence on a single dispositive issue? Afraid that
   issues in isolation will not be adjudicated fairly.
IV: Juries

Judge & Jury can yield very different outcomes
   - individual vs. group deliberation
   - hidden vs. open reasoning

What’s good about Juries
  - community standards
  - 12 minds are better than 1 (pull you towards the middle, although in some
  circumstances, empirical studies show that deliberation can further polarize already
  formed opinions)
  - peers: (a) think they’ll make better decisions; (b) seems more legitimate even if it’s
  not more accurate.

Bad about juries
   - can hold to community standards we feel are morally wrong (e.g. explicit denial of
   jury trials for civil rights litigation)
   - bad at complexity: of facts; and of law (not necessarily an intellectual deficit, may
   also be a matter of implicit time pressure on a jury decision)

Rule 38 – Jury Trial of Right

(a) Right Preserved
The right of a trial by jury as declared by the Seventh Amendment to the Constitution or
    as given by a statute of the United States shall be preserved to the parties inviolate.

(b) Demand
Any party may demand a trial by jury of any issue triable of right by a jury by (1) serving
    upon the other parties a demand therefor in writing at any time after the
    commencement of the action and not later than 10 days after the service of the last
    pleading directed to such issue, and (2) filing and demand as required by Rule 5(d)
    [filing]. Such demand may be indorsed upon a pleading of the party.

(c) Same: Specification of Issues
In the demand a party may specify the issues which the party wishes so tried; otherwise
    the party shall be deemed to have demanded a trial by jury for all the issues so triable.
    If the party has demanded trial by jury for only some of the issues, any other party
    within 10 days after service of the demand or such lesser time as the court may order,
    may serve a demand for trial by jury of any other or all of the issues of fact in the

(d) Waiver
The failure of a party to serve and file a demand as required by this rule constitutes a
    waiver by the party of trial by jury. A demand for trial by jury made as herein
    provided may not be withdrawn without the consent of the parties.
(e) Admiralty and Maritime Claims
These rules shall not by construed to create a right to trial by jury of the issues in an
    admiralty or maritime claim within the meaning of Rule 9(h) [Pleading Special
    Matters – Admiralty & Maritime Claims].

Rule 39 – Trial by Jury or by the Court

(a) By Jury
When trial by jury has been demanded as provided in Rule 38, the action shall be
    designated upon the docket as a jury action. The trial of all issues so demanded shall
    be by jury, unless (1) the parties or their attorneys of record, by written stipulation
    filed with the court or by an oral stipulation made in open court and entered in the
    record, consent to trial by the court sitting without a jury or (2) the court upon motion
    or of its own initiative finds that a right of trial by jury of some or all of those issues
    does not exist under the Constitution or statutes of the United States.

(b) By the Court
Issues not demanded for trial by jury as provided in Rule 38 shall be tried by the court;
    but, notwithstanding the failure of a party to demand a jury in an action in which such
    a demand might have been made of right, the court in its discretion upon motion may
    order a trial by a jury of any or all issues.

(c) Advisory Jury and Trial by Consent
In all actions not triable of right by a jury the court may upon motion or of its own
    initiative may try any issue with an advisory jury or, except in actions against the
    United States when a statute of the United States provides for trial without a jury, the
    court, with the consent of both parties, may order a trial with a jury whose verdict has
    the same effect as if trial by jury had been a matter or right.

Right to Jury Trial – Notes & Cases

7th Amendment

Content & philosophy
  - Over $20, right to jury “preserved,” so we look to availability of remedy in
      common law at the time of amendment.\
  - Very strange to fix law-equity distinction in time, since the distinction had been
      blurring almost since the inception of the systems, and (of course) has totally been
      abandoned in every other respect (than juries) since the 7th Amendment was

How pursued
Requests for a jury trial are usually pursued through writs of mandamus (immediate
appellate review if the DC doesn’t grant a trial).

Claims Traditionally in Law
       1.   monetary damages
       2.   conversion – illegal taking/destoying of property without right
       3.   trover – recovery of wrongfully taken property/lost property
       4.   replevin – same as trover (even though both injunctive relief)
       5.   action for rent
       6.   ejectment (even though specific performance)
       7.   Breach of K
       8.   Malpractice

Claims Traditionally in Equity
      1. complex claims
      2. specific remedies
      3. injunction
      4. restitution – restoration of something to rightful party
      5. restraining order or order to act
      6. administration of trusts
      7. recision - ?cutting something out of K?
      8. fiduciary
      9. procedural
      10. multiparty actions.

New Claims
  - If it applied & existed then, then you get a jury. If it’s a new claim, can argue by
     analogy regarding the claim (less impt) and the remedy (more impt).
  - One solution is to say, if it didn’t exist back then, there’s no right. Another is to
     say: what is this analogous to? Another is to look at the kind of relief sought after
     (more important to determining jury right).

Chauffeurs, Teamsters & Helpers, Local No. 391 v. Terry – example of new claim
   - Settle on analogy to existing claims and remedies, with more (or exclusive,
      according to Brennan, or none according to Kennedy, O’Connor & Scalia) weight
      to remedies.
   - No clear match in this case – collective bargaining was totally illegal at the time,
      so there were no actions at all regarding unions in the 18th Century. How to

   -   (1) Does the claim match with law or equity?
           o Union suggests arbitration analogy, which the court rejects. They also
              suggest a trustee’s breach of fiduciary duty (court likes this argument,
              since the trustee is supposed to act in the beneficiary’s best interest, but is
              not controlled by the wishes of the beneficiary).
           o Terry suggests an analogy to an attorney malpractice action (which the SC
              has cited before, but rejects here, since unlike a unionized employee, (a) a
              client controls decisions made by his lawyer, and (b) can fire the attorney).
           o Ultimately, the court says that it depends on the nature of the issue to be
              tried more that the flavor of the overall action (or relationship between the
                parties). Specifically, in this case, the issues are two-fold: (1) there was a
                breach of the employee’s contract (action in law), and (2) there was a
                breach of the union’s duty (just decided that this was like a trustee,
                therefore action in equity). So, with this balance existing, look to the next
   -   2) Does the relief sought match with law or equity? They’re asking for money,
       and it’s not restitutionary, and it’s not “incidental to or intertwined with injunctive
       relief.” Therefore the remedy sought after is one given by common law.
   -   Court in this case finds that it’s not even overall (equipoise in claim, but remedy
       is definitely law), but if it was even, more weight to remedy.

Brennan’s concurrence
Brennan’s concurrence in part thinks it’s ridiculous to look at both claim and relief,
should only look at relief, where there has been much less change in the nature of
available relief and the number of categories in much fewer and the test is (therefore?)
clearer. This is not a fudge of the 7th Amendment requirement to “preserve,” since he
argues that it will be more accurate when you don’t consider trying to match new claims
to old ones where the match is highly discretionary and not obvious. Basing decision
entirely on relief will be a more accurate way of preserving those rights.
Dissent: Once we decide that the type of claim is in equity, if the relief included money
damages in the past, then you just leave it to the equity court and don’t even get to the
larger question of relief.

Statutory provisions for Juries when creating new claims
   - If the statute had provided for a jury, would that be the end of the matter? Yes (7th
       Amendment never enshrines any right to not have a jury, so statutes that allow a
       jury do not contradict it.)
   - Conversely, it’s not 100% certain that Congress can’t decide that a new law won’t
       have a right to a jury, since their interpretation of whether a new cause of action
       falls under law or equity may be persuasive (although it is always subject to
       judicial interpretation (de novo) of the legitimacy of that designation).

Administrative Forums
  - Administrative tribunals don’t need juries – specialized expertise is the whole
     point of the separate forum (would be largely thwarted by introducing a jury).
  - Closer call is a bankruptcy court, which looks & works a lot like a regular court.

Who is on the Jury?
Choosing Jurors

Rule 47 Selection of Jurors
(a) Examination of Jurors. The court may permit the parties or their attorneys to conduct
the examination of prospective jurors or may itself conduct the examination. In the latter
event, the court shall permit the parties or their attorneys to supplement the examination
by such further inquiry as it deems proper or shall itself submit to the prospective jurors
such additional questions of the parties or their attorneys as it deems proper.
(b) Peremptory Challenges: The court shall allow the number of peremptory challenges
provided by 28 U.S.C. Section 1870.
(c) Excuse: The court may for good cause excuse a juror from service during trial or

Rule 48 Number of Jurors
The court shall seat a jury of not fewer than six and not more than twelve members and
all jurors shall participate in the verdict unless excused from service by the court pursuant
to Rule 47(c). Unless the parties otherwise stipulate, (1) the verdict shall be unanimous
and (2) no verdict shall be taken from a jury reduced in size to fewer than six members.

Title 28, Chapter 121 – Juries; Trial by Jury

28 U.S.C. §1861 – Declaration of policy
It is the policy of the United States that all litigants in Federal courts entitled to trial by
     jury shall have the right to grand and petit juries selected at random from a fair cross
     section of the community in the district or division wherein the court convenes. It is
     further the policy of the United States that all citizens shall have the opportunity to be
     considered for service on grand and petit juries in the district court of the United
     States, and shall have an obligation to serve as jurors when summoned for that

28 U.S.C. §1862 – Discrimination prohibited
No citizen shall be excluded from service as a grand or petit juror in the district courts of
   the United States or in the Court of International Trade on account of race, color,
   religion, sex, national origin, or economic status.

Notes on 1861 and 1862:
   - Guarantee cross-section of the community. How do you get one? What kind of
       aspects do you want in one?
   - What kind of characteristics matter?
   - A big list of people gets called and a pool gets created. You can challenged the
       pool based on section 1867. After you have the pool, everything is about

28 U.S.C. §1870 -- Challenge
In civil cases, each party shall be entitled to three peremptory challenges. Several
    defendants or several plaintiffs may be considered as a single party for the purposes
    of making challenges, or the court may allow additional peremptory challenges and
    permit them to be exercised separately or jointly.
All challenges for cause or favor, whether to the array or panel or to individual jurors,
    shall be determined by the court.
Voir Dire
Process by which the jurors are questioned: can include questionnaires, oral questions to
   whole pool or to individual jurors.

Challenges for cause
  - All at judges’ discretion: for potential bias in the case (either perspective or
      specific knowledge).
  - Exclude those with specific knowledge because or rules of evidence, which
      excludes certain facts from the jury’s consideration. Exclude those whose lives
      might match too closely with one of the parties.

Peremptory challenges
   - Based on the notion that there’s a lot you can learn that can’t be articulated. Not
     just for bias but for how they may respond to their presentation of the case. Each
     side (adversarially) should eliminate outliers on both sides. Also, legitimacy issue
     of parties being able to some extent choose their own decision-makers.
   - Based on superficial stereotyping and large hazards are associated with these –
     manipulates pool.
   - Both sides having peremptories sort of eliminates the bad qualities.

Strategic limitations of questioning
   - Practical limitations of trying to be likeable while trying to get info
   - Trying to present their case – first opportunity to show it to jury.
   - Generally try not to leave too much fighting/meanness in front of the jury

Batson & Progeny
   - (1986): African American defendant, prosecutor used 4 peremptories to get an all-
      white jury, held this violated equal protection rights. Need at least some
      legitimate reason.
   - Can’t use race in a criminal or civil context even if you’re a private litigant.
      Has to be a prima facie case, then court asks challenger for non-race based
      explanation, they have to provide one, judge decides believability.
   - What’s acceptable? Looked at me funny, etc is no good anymore since there’s
      nothing testable about it that can refute a prima facie case.

Discrimination Notes:
   - Rights violated are the rights of the juror – unusual, since we normally allow only
       those whose rights are violated to have standing: exceptions to no third-party
       standing when (1) concrete redressable injury to the party, (2) close relation to
       the injured, (3) hindrance of 3rd party’s ability to protect these interests on her
   - What right of the juror is violated? Right to participate in the process. Even if the
       juror is not interested in being on this jury, but doesn’t want to be excluded for
       race. Might want to add another factor (4) public interest.
   -   On the other hand, why not allow anyone injured to have standing when they’re
       injured (prong 1)? In general, worry about serving the purpose of the original
   -   Race of defendant vs. that of excluded jurors does not alter ability to challenge.
       Have to challenge before jury is empanelled, which involves a certain amount of
       prejudice about whether it’s better to challenge the opponent’s peremptory or
       allow the juror to leave.

Edmonson – Civil juries & peremptories
  - D used 2/3 peremptories to exclude black jurors in the civil trial. Judge denied
     P’s request for D to provide race-neutral explanation.
  - Majority extends Batson to civil trials, saying that the judges’ involvement, fact
     that jury is governmental body, happens in a court brings this under state power.
  - Case is remanded because they decide to apply Batson to civil trials without
     ruling on whether there was a pattern in this case.

J.E.B. v. Alabama
   - Paternity suit involving the state, state uses 9/10 peremptory challenges to yield
       an all-female jury.
   - Held unconstitutional for either state or private actors.
   - Extended Edmonson to discrimination against gender.

V. Trial
Jury Instruction & Verdicts

Rule 49 – Special Verdicts and Interrogatories

(a) Special Verdicts
The court may require a jury to return only a special verdict in the form of a special
    written finding upon each issue of fact. In that event the court may submit to the jury
    written questions susceptible of categorical or other brief answer or may submit
    written forms of the several special findings which might properly be made under the
    pleadings and evidence; or it may use such other method of submitting the issues and
    requiring the written findings thereon as it deems most appropriate. The court shall
    give to the jury such explanation and instruction concerning the matter thus submitted
    as may be necessary to enable the jury to make its findings upon each issue. If in so
    doing the court omits any issue of fact raised by the pleadings or by the evidence,
    each party waives the right to a trial by jury of the issue so omitted unless before the
    jury retires the party demands its submission to the jury. As to an issue omitted
    without such demand the court may make a finding; or, if it fails to do so, it shall be
    deemed to have made such a finding in accord with the judgment on the special

(b) General Verdict Accompanied by Answer to Interrogatories
The court may submit to the jury, together with appropriate forms for a general verdict,
   written interrogatories upon one or more issues of fact the decision of which is
   necessary to the verdict. The court shall give such explanation or instruction as may
   be necessary to enable the jury both to make answers to the interrogatories and to
   render a general verdict, and the court shall direct the jury both to make written
   answers and to render a general verdict. When the general verdict and the answers are
   harmonious, the appropriate judgment upon the verdict and answers shall be entered
   pursuant to Rule 58 [Entry of Judgment]. When the answers are consistent with each
   other but one or more is inconsistent with the general verdict, judgment may be
   entered pursuant to Rule 58 in accordance with the answers, notwithstanding the
   general verdict, or the court may return the jury for further consideration of its
   answers and verdict or may order a new trial. When the answers are inconsistent with
   each other and one or more is likewise inconsistent with the general verdict, judgment
   shall not be entered, but the court shall return the jury for further consideration of its
   answers and verdict or shall order an new trial.

Rule 51 – Instructions to Jury: Objection
At the close of the evidence or at such earlier time during the trial as the court reasonably
    directs, any party may file written requests that the court instruct the jury on the law
    as set forth in the requests. The court shall inform counsel of its proposed action upon
    the requests prior to their arguments to the jury. The court, at its election, may instruct
    the jury before or after argument, or both. No party may assign as error the giving or
    the failure to give an instruction unless that party objects thereto before the jury
    retires to consider its verdict, stating distinctly the matter objected to and the grounds
    of the objection. Opportunity shall be given to make the objection out of the hearing
    of the jury.
Judgment as a Matter of Law (JMOL)

Rule 50 – Judgment as a Matter of Law in Jury Trials; Alternative Motion for New
Trial; Conditional Rulings

(a) Judgment as a Matter of Law
(1) If during a trial by jury a party has been fully heard on an issue and there is no legally
    sufficient evidentiary basis for a reasonable jury to find for that party on that issue,
    the court may determine the issue against that party and may grant a motion for
    judgment as a matter of law against that party with respect to a claim or defense that
    cannot under the controlling law be maintained or defeated without a favorable
    finding on that issue.
(2) Motions for judgment as a matter of law may be made at any time before submission
    of the case to the jury. Such a motion shall specify the judgment sought and the law
    and the facts on which the moving party is entitled to the judgment.

(b) Renewing Motion for Judgment After Trial; Alternative Motion for New Trial
If, for any reason, the court does not grant a motion for a judgment as a matter of law
     made at the close of all the evidence, the 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. The movant may renew its request for judgment as a matter of law by filing a
    motion no later than 10 days after entry of judgment and may alternatively request a
    new trial or join a motion for a new trial under Rule 59 [New Trials, Amendment of
    Judgments]. In ruling on a renewed motion, the court may:

    (1) If a verdict was returned:
       (A) allow the judgment to stand,
       (B) order a new trial, or
       (C) direct entry of judgment as a matter of law; or
    (2) if no verdict was returned:
       (A) order a new trial, or
       (B) direct entry of judgment as a matter of law.

(c) Granting Renewed Motion for Judgment as a Matter of Law; Conditional
Rulings; New Trial Motion
(1) If the renewed motion for judgment as a matter of law is granted, the court shall also
    rule on the motion for a new trial, if any, by determining whether it should be granted
    if the judgment is thereafter vacated or reversed, and shall specify the grounds for
    granting or denying the motion for a new trial. If the motion for a new trial is thus
    conditionally granted, the order thereon does not affect the finality of the judgment.
    In case the motion for a new trial has been conditionally granted and the judgment is
    reversed on appeal, the new trial should proceed unless the appellate court has
    otherwise ordered. In case the motion for a new trial has been conditionally denied,
    the appellee on appeal may assert error in that denial; and if the judgment is reversed
    on appeal, subsequent proceedings shall be in accordance with the order of the
    appellate court.
(2) Any motion for a new trial under Rule 59 by a party against whom judgment as a
    matter of law is rendered shall be filed no later than 10 days after entry of the

(d) Same: Denial of Motion for Judgment as a Matter of Law
If the motion for judgment as a matter of law is denied, the party who prevailed on that
     motion may, as appellee, assert grounds entitling the party to a new trial in the event
     the appellate court concludes that the trial court erred in denying the motion for
     judgment. If the appellate court reverses the judgment, nothing in this rule precludes
     it from determining that the appellee is entitled to a new trial, or from directing the
     trial court to determine whether a new trial shall be granted.

JMOL – notes and cases
Judgment as a Matter of Law = directed verdict (before the verdict) or j.n.o.v. (after the
   verdict). Whether a reasonable jury could find, in light of the law, that there was any
   basis for either side.
Legal standard is the same for summary judgment and for JMOL, but judge may be more
   reluctant to decide earlier in the case.

No evid ------|----------------------------------|------ perfect evidence
             X                              Y

Evidence <X = jmol for D.
Evidence >Y =jmol for P.

- There’s lots of thins that are done to ensure the jury won’t come out the wrong way:
    evidentiary rules control the kind of evidence the jurors hear, voire dire is educative
    process about case, summary judgment is similar to j.m.o.l., instructions on law and
    how jurors should approach the decision process, etc.

What evidence to consider for JMOL?
1) Favorable evidence Rule: Is there some testimony enough to push it over the line –
    only look at evidence favorable to the non-moving party, from the non-moving party.
    Scintilla of evidence?
2) Qualified favorable evidence rule: Look at the non-moving party’s evidence and then
    what the other side comes back with. (1) plus uncontradicted unimpeached testimony
    (from disinterested parties – some feel that all interested parties are impeachable in
    some sense) even from movant’s evidence. Some sort of weighing goes on here – not
    weighing of credibility.
3) All evidence standard: all evidence is used, but this standard is generally disfavored.
    This might lead to a new trial. A new trial motion, unlike j.m.o.l. gives the judge
    some ability to sort through credibility issues. Not as great a usurpation of juries and
    so the judge has a little more ability to weigh credibility of evidence.

   These factors don’t change the standard for jmol, only the evidence that can be
   considered in evaluating the standard.

Reid v. San Pedro, Los Angeles & Salt Lake Railroad
Cow killed by train close to open gate. If cow went through the gate (P’s responsibility),
   no liability, but if cow went through broken fence (D’s responsibility). Directed
   verdict denied by trial court, jury finds for P, appellate court reverses denial of
   JMOL. There’s a burden on plaintiff to show that it’s more likely than not that the
   cow went through the fence hole, not the open gate. Without any evidence other than
   that the cow was so close to the open gate, there’s no way a reasonable jury could
   find this burden had been met. Plaintiff has burden of proof – jury must have enough
   evidence to rationally decide that the plaintiff’s version of the facts was more likely.

JMOL and Burdens of Production and Persuasion
  - Burdens of persuasion and production are much more consequential than burdens
     of pleading, since in the latter there’s opportunity for corrections.
  - What if burden in Reid was on Defendant? Would you have to have a directed
     verdict for plaintiff? Not necessarily: burden can change reasonableness but this
     case is so blatant that changing the burden doesn’t seem to be enough.
  - Change the facts: does it have to be 51% of the way towards the hole in the fence
     to allow any reasonable jury to find for P? Maybe if that’s really the only
       evidence. Really there may be some other evidence (about the behavior of other
       cows, etc) that the jury might have found.

Burden of Persuasion
   - Matters to the jury’s decision.
   - Note tries to say that burdens of persuasion don’t really affect the outcome, but
      only really affects when facts are in equipoise.
   - Buss doesn’t agree – thinks burden makes a difference since equipoise is not
      mathematically precise in fact patterns and will affect judgment in a broad range
      around the margins.

Burden of Production
   - For the judge to decide: has the party come up with enough evidence for a jury to
      find in her favor at all?
   - Burden of Production is usually held by part with burden of persuasion.
   - Glannon’s preponderance line – the range between X and Y is where a reasonable
      jury might decide.
   - Relationship between production and persuasion: The judge asks has the plaintiff
      produced enough evidence to allow jury to rationally be persuaded of one version
      of the facts.

Pennsylavnia Railroad v. Chamberlain p. 724
   - Issue is whether or not there was a collision. Everyone there said there was no
      coliision, but Brainbridge, who testified that he heard a loud crash like there was
      one, but didn’t see it himself.
   - General rule is that if there is a conflict in the evidence you don’t take it away
      from the jury – the jury has to decide what evidence is to be believed.
   - Why wasn’t it decided this way here: Supreme Court said it wasn’t an issue of
      facts in dispute, because he didn’t see the collision – at most there was an
      inference which could have gone the other way.
   - Distinction between circumstantial evidence – where you have to draw inferences
      to get to the next step versus evidence where you just have to decide if they’re
      telling the truth.
   - Opinion tries to make Reid-like simplicity of the case, which wasn’t there –
      Bainbridge had certain knowledge like expert witness, other witnesses were all
      employees of company and had other interests.
   - There has been a trend towards judicial economy – judges will let jury decide and
      then figure out what to do with it. (If they give a directed verdict and it’s
      reversed, no need for a new trial).

JMOL and Juries – When to bring motion, when to rule
  - Have to move before case goes to Jury, but Judge doesn’t have to rule before Jury
     comes back.
  - Courts prefer not to interfere with juries, so best is to let the case go to the jury
     first, then rule on j.m.o.l. This is preferred since (a) reversal before jury = whole
       new trial, but reversal after jury = reinstate verdict; (b) if we have faith in juries,
       there’s a good chance they’ll get it right.
   -   7th amendment also provides that any court will not reexamine facts tried by jury.
       That’s why j.m.o.l. has to be raised before it goes to the jury – ruling after jury
       decision is therefore not a reexamination. Also, gives the opportunity to fix
       evidentiary mistakes/omissions before the case goes to jury.

New Trial

Rule 59 – New Trials; Amendment of Judgments

(a) Grounds
        A new trial may be granted to all or any of the parties and on all or part of the
    issues (1) in an action in which there has been a trial by jury, for any of the reasons
    for which new trials have heretofore been granted in actions at law in the courts of the
    United States; and (2) in an action tried without a jury, for any of the reasons for
    which rehearings have heretofore been granted in suits in equity in the courts of the
    United States. On a motion for a new trial in an action tried without a jury, the court
    may open the judgment if one has been entered, take additional testimony, amend
    findings of fact and conclusions of law or make new findings and conclusions, and
    direct the entry of a new judgment.

(b) Time for Motion
Any motion for a new trial shall be filed no later than 10 days after the entry of the

(c) Time for Serving Affidavits
When a motion for new trial is based on affidavits they shall be filed with the motion.
    The opposing party has 10 days after service to file opposing affidavits, but that
    period may be extended for up to 20 days, either by the court for good cause or by the
    parties’ written stipulation. The court may permit reply affidavits.

(d) On Court’s Initiative; Notice; Specifying Grounds
No later than 10 days after entry of judgment the court, on its own, may order a new trial
    for any reason that would justify granting one on a party’s notion. After giving the
    parties notice and an opportunity to be heard, the court may grant a timely motion for
    a new trial for a reason not stated in the motion. When granting a new trial on its own
    initiative or for a reason not stated in a motion, the court shall specify the grounds in
    its order.

(e) Motion to Alter or Amend a Judgment
Any motion to alter or amend a judgment shall be filed no later than 10 days after entry
    of the judgment.
New Trial – Notes and Cases
  - “Against the great weight of the evidence” = new trial. Court can engage in some
     weighing, but not supposed to replace jury’s judgment with her own.
  - If judgments are not matters of law, then you can either reverse or have a new
  - New trials are awarded for procedural defects.
  - A new trial order is not immediately appealable – thins get sent back.

Lind v. Schenley
   - Salesman says he was offered a raise (consisting of commissions), evidence is his
       and a secretary’s testimony.
   - D gets j.n.o.v. and alternatively, a new trial. Factors in trial court’s decision:
       1) against the great weight of the evidence
       2) evidence improperly admitted
       3) contrary to law
   - Appeal says: not (2) evidentiary issues or (3) j.m.o.l. issues, and consider (1)
       whether or not there should be a new trial. Inquiry consists of:
       (1) what does the standard mean “against the great weight of the evidence”?
       (2) how did the trial court apply that standard?
       (3) what’s the standard of appellate review of new trial orders?
   - Court notes there is a history of deference to trial judge and gets around this by
       saying that a new trial based on procedural errors requires deference. A trial
       based on the verdict being against the weight of the evidence does not get
       deference because the judge interferes with the juries deliberations.

Standard for “against the great weight of the evidence” and to avoid injustice
   (1) Standard has to be more than the judge just thinking she would have gone the
       other way (if that’s it, why have a jury at all?). Why has it only happed
       occasionally that (since new trial is not a final order) judges go back again and
       again? Maybe because judges have good sense to give up after the second jury
       goes the other way. Also, judge and parties may change their approach or settle.
       Not a solid definition: “to avoid a serious miscarriage of justice” etc…

Standard of review of new trial orders:
   - Abuse of discretion (although historically, discretionary calls had been
         o Court says there’s a difference between:
         o 1. New trials ordered “against the great weight of the evidence” (=
              questioning of jury and judicial usurpation, so closer scrutiny under abuse
              of discretion standard.)
         o 2. Those ordered on procedural issues (= not usurping jury’s role, so wider
              discretion and deference given to trial judge.)
         o 3. Where subject matter of trial is within juries/everyday person’s
              knowledge, then the trial judge should review it less strictly.
   -   N.B. reviewing procedural errors per se is done de novo, but whether such
       errors (when acknowledged) should lead to a new trial is reviewed under a
       generous abuse of discretion standard.

Remittur (and Additur)
  - Note that the court can, instead of ordering a whole new trial, also retry damages,
      or a portion of the case, or remittur (no additur in the Federal system). P is
      instructed to take less damages or the court will grant a new trial.
  - Standard for remittur verdict “shocks the conscience,” or is the product of
      “passion, bias, prejudice.” Court may calculate new amount based on highest
      reasonable amount, reasonable amount, or lowest reasonable amount. There is
      NO appeal of remittur.
  - Courts can send pieces of case for new trial – if liability was determined but
      damages are too high – then new trial on damages. This approach has problems.

New Trials, JMOL and Juries
   - Despite all of these procedures to overcome jury decisions, there is no scrutiny
      allowed of the quality of jury’s reasoning. Why?
          o Afraid that they will deliberate differently if scrutinized (self-consciously)
          o Want to allow some room for nullification.
   - As soon as new trial and j.m.o.l. are joined, the bottom line rule is that they can be
      considered together on appeal.

VII. Appeals

General Notes & Policy Considerations
   - Allowed one appeal as a matter of right in Federal court.
   - How do you balance review in necessary cases with finality of initial
      - Don’t want wasteful duplication.
      - Want to encourage feeling of finality about initial trial
   - Expertise: facts  trial court; Law  appellate court
   - Resources: appellate court has more luxury to deliberate
   - Strong argument is that there’s a somewhat adversarial relationship between trial
      judge & jury, and appellate court is removed from the distortion of that conflict.
   - Interlocutory appeals are allowed only in certain cases, generally need a final
   - Judgments are generally not reversed.
   - Cannot bring up new issues on appeal unless there’s an extreme circumstance.
   - All cases have a right to get one level of appellate review – there’s tension
      between discouraging appeals and having to grant them as a matter of right.
      Limits given because of costs, deference to judes, certain kinds of mistakes are
      serious enough, courts have different kinds of expertise.
   - Waiver Idea: if you have a meritorious right to appeal but don’t do so within the
      time limit, you waived your right to appeal.
Restrictions & Limitations on Right to Appeal
Who (can bring), how (to preserve the right), to what extent (can decisions be reviewed)?

Harmless Error Cannot be Appealed
Rule 61. Harmless Error:
 No error in either the admission or the exclusion of evidence and no error or defect in
   any ruling or order or in anything done or omitted by the court or by any of the parties
   is ground for granting a new trial or for setting aside a verdict or for vacating,
   modifying, or otherwise disturbing a judgment or order, unless refusal to take such
   action appears to the court inconsistent with substantial justice. The court at every
   stage of the proceeding must disregard any error or defect in the proceeding, which
   does not affect the substantial rights of the parties.
- Would the mistake have changed the outcome?
            1. Often ask this initially.
            2. Some cases are easy, but this is hard to evaluate.
            3. Not about the abstract importance of that class of error, but rather a
                specific inquiry about the context of the error in the case – did it harm in
                this case?

Judgment Has to be Adverse
   - Why would anyone want to appeal if they got what they wanted at trial?
         o One response would be want a better precedent/legal theory – this is not
            sufficient grounds for appeal.
         o A party loses standing or determination to argue when no $ at stake.
         o You might want to appeal if you won on a certain part if that part will not
            give you monetary protection against bankruptcy.

Aetna Casualty & Security Co. v. Cunningham
   - Guarantee contractor’s completion of a job for the school board. They don’t,
      Aetna sues based on:
      1) contract
      2) fraud
   - Contract claim is conceded and results in damages for Aetna, Aetna loses on
      fraud, and then appeals.
   - Adversity? Yes, because fraud claim will have a higher precedence in (potential)
      bankruptcy proceedings.
   - Mere preference will not suffice, but here the plausible quality of real effects is

Mootness (no subject matter jurisdiction over moot issues)
  - A result cannot be appealed if the circumstances have changed in such a way that
      relief can no longer be granted. An exception to this is a need to prevent
      mootness from occurring in future cases (i.e. rule on abortion so future P’s won’t
      have to give birth before appeal.)
Issues Have to be Preserved by Addressing them at Trial
Why? – Raise the issue where it can be argued and cured; if trial court is the main event,
    want to bring everything in there in the context of the full proceeding (complete

   - Prevailing party responding on appeal in support of trial court’s opinion (e.g.
      Mass Mutual) can raise new arguments; also plain error (avoiding injustice: very
      narrow); issues related to/interconnected with previously aired issue;
      jurisdictional issues (also in rule 12 exception for arguments not waived); when
      there’s been significant change in the law (e.g. Carson).

Carson Products Co. v. Califano
   - Hair removal product trying to certify as a trade secret. FDA reviews and denies,
      appeal to district court, court agrees with FDA.
   - Carson appeals again, in the meantime, another opinion decides that FDA
      procedure doesn’t meet due process, Carson raises that issue for the first time on
      their appeal.
   - Appellate Court says that’s sufficient.
   - Will any change in law be sufficient? No. In this case, though, it resulted in
      sweeping changes at the FDA in response to the ruling that extended all the way
      to cases already under review in trial courts (seems arbitrary not to extend to cases
      under appeal (like this one)).
   - Also, related to doctrinal concern, government has had opportunity to brief AND
      there’s no factual aspect (so appellate court is equally competent).
   - Finally, big change implies no bad faith or omission on the part of the attorneys.
   - Injustice might otherwise occur because such a big legal change.

Mass Mutual – Issue was preserved below by reply brief even if not cross-appealed)
  - To what extent can you raise new arguments when you’re the appellee?
  - There are two layers of law going one: conflicts of law issues and substantive law
      issues. Insurance contract issued in Michigan provides life insurance coverage
      and double indemnity when person is killed while being a passenger on a
      commuter train. Insured gets killed in Illinois while crossing a railroad line to
      board a commuter train.
  - Case is filed in Illinois court.
  - Insurance company argues that Illinois law appliea nd that means ordinary
      benefits. Estate argues that Michigan law applies and that means double benefits.
  - The DC rules that Michigan law applies and that there’s double indemnity. The
      estate loses and appeals. The insurance company argues that if it’s Michigan law,
      then it has ordinary benefits but it should have been Illinois law with ordinary
      benefits. The Seventh Circuit says that Michigan law leads to double indemnity.
      The court doesn’t reconsider the conflict of laws issue – and says that Michigan
      law application was fine. The appellate court says the insurer cannot argue that
      Illinois law applies because they didn’t cross appeal.
   -   SC (per curiam – this is easy) said that youd o’nt have to cross-appeal if you’re
       offering a different legal arugument to support your point. You can’t cross appeal
       because it wasn’t an adverse judgment again them. Unless you can say something
       about the judgment below was adverse, there’s no cross-appeal.
   -   Not a waiver because they brought up the arguments below.
   -   You can bring up new arguments on appeal if they are based on the
       decision/evidence/arguments below – they don’t require cross-appeal.
   -   Cross-appeal: both sides may not have gotten everything they wanted to get in the
       judgment – can bring up appeals on different issues by cross-appealing.

Final judgment rule

28 U.S.C. §1291 – Final Decisions of District Courts
The courts of appeals [except Federal Circuit, which is limited as described in
   §§1292(c),(d) and 1295] shall have jurisdiction of appeals from all final decisions of
   the district courts of the United States [and the Canal Zone, etc.], except where a
   direct review may be had in the Supreme Court.

28 U.S.C. §1292 – Interlocutory Decisions
(a) Except as provided in subsections (c) and (d) of this section, the courts of appeals
shall have jurisdiction of appeals from:
    (1) Interlocutory orders of the district courts of the United States [etc] or of the judges
    thereof, granting, continuing, modifying, refusing or dissolving injunctions, or
    refusing to dissolve or modify injunctions, expect where a direct review may be had
    in the Supreme Court
    (2) Interlocutory orders appointing receivers, or refusing orders to wind up
    receiverships or to take steps to accomplish the purposes thereof, such as directing
    sales or other disposals of property.
    (3) Interlocutory decrees of such district courts or the judges thereof determining the
    rights and liabilities of the parties to admiralty cases in which appeals from final
    decrees are allowed.
(b) When a district judge, in making in a civil action an order not otherwise appealable
    under this section, shall be of the opinion that such order involves a controlling
    question of law as to which there is substantial ground for difference of opinion and
    that an immediate appeal from the order may materially advance the ultimate
    termination of the litigation, he shall so state in writing in such order. The Court of
    Appeals which would have jurisdiction of an appeal of such action may thereupon, in
    its discretion, permit an appeal to be taken from such order, if application is made to
    it within ten days after the entry of the order: Provided, however, That application
    for an appeal hereunder shall not stay proceedings in the district court unless the
    district judge or the Court of Appeals or a judge thereof shall so order.

Final Judgment Rule – Notes & Cases
   - Can’t appeal before all issues are adjudicated 28 U.S.C. §1291
   - Why? Cumbersome (back & forth); duplication; won’t get full context and picture
       of case, intrusive on trial court’s authority;
   -   Hard example - motion to dismiss (early motion, totally dispositive) not granted,
       go through trial, 2 years later, appellate court reverses. Seems like this argues for
       review of non-final orders.
   -   Maybe we should be able to appeal all early orders?
   -   If the trial court is likely to get it right, worry less (rate of reversal also accounts
       for standard of review, so not a straight indication of how often we think the trial
       court is actually wrong)
   -   Historically, final judgment rule grew out of old procedures, which (in law) were
       short so delay was brief in any case. Equity procedures, which were long,
       allowed interlocutory appeals.

Liberty Mutual v. Wetzel
   - Maternity leave policy challenged under Title VII. Summary judgment (partial)
       motion successfully moves for finding of liability.
   - Court delays entering injunction to wait to see if appellate courts affirm liability,
       but issues an order claiming to be a “final judgment.”
   - 3rd circuit affirms merits of SJ motion, appealed again to SC.
   - SC raises final judgment issue sua sponte. Decides the decision was not final and
       therefore there’s a jurisdictional problem – cannot take the case because no final
       judgment. Plaintiffs actually defend that there’s been a final judgment. Because
       no relief was given, judgment not final.
   - Under Rule 54(b), which trial court used to say the judgment was final, rule 54(b)
       only applies to cases with multiple issues.
   - Next argument: under 1292 (a), allowed exceptions for injunctions. But these
       only govern injunctions and the court did not order one. There was no granting or
       denial of an injunction in this case.
   - 1292(b) exception: governs whether the judgment was about a (1) controlling
       question of law about which there was (2) substantial disagreement of opinion
       that would (3) expedite the conclusion of the litigation. Certification for
       interlocutory appeal that has to be done within 10 days of the order. But this
       wasn’t done in this case, and neither the trial court nor the appellate court granted
       review. Otherwise, it might be a good match here.
   - Why is 1292(b) invoked so rarely? District courts rarely certify and appellate
       courts only accept 1/3ish of the time.
           o D.C. worried about undermining their authority (childish concern?)
           o May prefer to develop record below before appeal
           o D.C. judges are repeat players, reputation issues (whininess) from
               repeatedly certifying §1292(b)

Collateral Order Doctrine
Orders that are collateral and separate from the merits and final in themselves are:
   (1) Does the order conclusively determine the issue in question
   (2) Does it resolve an important issue
   (3) Distinct from the merits
   (4) Effectively unreviewable on appeal of final judgment
These orders are reviewable on appeal.
Lauro Lines – application of C.O.D.
   - LL sued in NY and points to clause printed on ticket says cases against it shall be
      tried in Naples.
   - Why would they want this? (a) More favorable rules; (b) home turf; (c) barrier to
      litigating for plaintiffs (practical advantage for LL also).
   - Court denies their forum selection argument and LL immediately appeals.
   - In determining whether District court’s denial of adherence to the forum selection
      clause on the ticket is reviewable under the C.O.D., court focuses on (4), but what
      about (1) & (3)?
   - (1) Conclusively determine the issue? Yes. (Despite potential for motion to
      reconsider). Something not conclusively determined e.g. decision not to appoint
      counsel – can always appoint one later if things get hairy.
   - (2) Yes, it resolves an important issue.
   - (3) Distinct from the merits? Definitely.
   - (4) Effectively unreviewable? The right is destroyed if you have to wait.
      Undermining position is not enough – any time a decision results in continuing
      trial there is some undermining. (nb some argue that continuation with trial will
      lead to settlement which does make the consequence unreviewable, but it’s your
      choice to settle).
           o If the right is not to be tried, then the right is destroyed (as in immunity
           o If the right is not to have a binding judgment entered in a court not in
               Naples, then having a trial in NY does not destroy the right because the
               judgment can be reversed on appeal.
   - Scalia in his concurrence says these can be framed either way, determination
      results from importance of the rights at issue. Is right important enough to not
      delay appeal.
   - In this case, compare to (qualified) immunity from suit (which is generally
      reviewable under C.O.D.), this right is not as important. Another example is
      denial of in forma pauperis status (being poor and so you don’t have to pay),
      denial of counsel, etc.
   - Do you open floodgates by allowing review versus this issue is really important
      and should be allowed review.

Things that are definitely reviewable under C.O.D.
- most qualified immunity from suit arguments
- permission to proceed in forma pauperis
- assigning a counsel (circuit split)

Writs of Mandamus
   - Gets you around final order rule, since it’s a separate action in the court of
       appeals, asking them to force the D.C. to behave in following rules.
   - Aggressively personal approach, generally not used because it tells appellate court
       that trial court is not doing its duty.
   - Is used routinely for right to jury trial
   -   Would jury right fall under C.O.D.? (no…)
       (1) conclusively determines? Yes
       (2) distinct from merits? Does address the nature of relief/ some merits so maybe
       (3) effectively unreviewable? After D.C. proceedings, can appellate court restore
       right to jury trial? Yes. Massively inconvenient, but right not destroyed.

Standards of Appellate Review
(1) Abuse of discretion – is the decision within the range of what is possible? Range
    within this standard: e.g. review of decision to allow amendment of pleading, which
    is a liberally granted right, will be reviewed generously, but decision to deny
    amending a pleading, which should be rare, is reviewed more strictly. The Appellate
    Court does refer to the Trial court but the question is: was thea ct within the
    appropriate range of discretion? Sometimes abuse of discretion is more generous in
    one direction.
(2) De novo – most clear – starting over in deciding the issue without deferring to the
    judge and only the record. Summary judgment, jmol are considered legal issues with
    a right answer
(3) Plain/clear error – lots of deference, basically like abuse of discretion but for fact-
    finding. E.g. Anderson (park district hiring). Used the right test, applied it
    incorrectly. Not an issue of correctly applying law to facts, but only about fact-

   -   (1) and (2) apply to issues of law, or to application of law to fact. (3) fact-finding
       by judges (even with a jury present – peremptory challenges, etc.)
   -   What does the clear error standard mean / what is it? “the reviewing court on the
       entire evidence is left with the definite and firm conviction that a mistake has
       been committed.”
           o Similar to the new trial standard: can’t just be a disagreement with the
           o Where there are two acceptable interpretations, have to give deference.

Anderson v Bessemer City – clearly erroneous case.
   - Anderson applies for recreation director job and a man gets it instead. There was
       conflicting evidence of discrimination and the judge found that there was
       discrimination, that she was more qualified, that the questions asked were biased
       against women, and that any offer of justification of the defendants decision was
   - Court of appeals applied the clearly erroneous standard, but SC said it was applied
       incorrectly because AC read the evidence differently than the TC did. The SC
       said the question was not whether she was qualified – there are two ways to read
       the evidence, but whether the evidence is so weighted in one direction that it has
       to be wrong (same standard that is applied to jury verdicts).
    -   Prior to Anderson, some circuits had held that only live witness testimony
        (credibility fact finding) was entitled to clearly erroneous standard. SC said apply
        to all fact finding.
    -   Why not allow a more intrusive review of documentary evidence? (1) General
        expertise with evaluating all kinds of evidence lies with the trial court; (2)
        Appellate court won’t be more competent; (3) Evidence is viewed and interpreted
        in context and not confident about appellate reconstruction of what evidence
        comes from where. Shows that this isn’t just about identifying liars, it’s about
        evaluating the whole context of the testimony.

VII. Alternative Dispute Resolution
- There is an infinite variety of ways to settle cases.

Mediation – not binding and 3P facilitates, but often also can make recommendations to
the court if mediation is mandatory which may mean mediator can coerce parties into
accepting agreements they don’t like. Usually done post-dispute. Parties will still make
the decision.
        Grillo – Feminist critique: mediation unfair to women in divorce situations that
want to discuss past relationships and mediator won’t allow. Mediator may force them to
accept an unfair agreement. Relationship focused people get steamrolled. No reason to
adopt a new system, which is not any better than the old. Women with relational sense of
self are more likely to give up things that are important to them.
        Luban – Courts are better b/c they create a civic discourse – same arguments that
apply to settlements. Public involvement has value, rule of law, airing publicly, etc.

Arbitration – 3P is like a judge. The arrangements are usually made pre-dispute but court
will enforce terms agreement after dispute starts. Contracts allow parties to decide their
own rules, control substantive law, discovery process, etc. Arbitration is done pre-

Ferguson v. Writers Guild of America – Court does not review substance of claim b/c of
arbitration agreement. It grapples with its authority and says it cannot review whether or
not Ferguson wrote the screenplay. It says it only reviews procedural problems where
arbitration agreement not executed as it’s supposed to be. The scope of review would be
that the court would give deference to the writer’s guild policy review boards since that is
what the parties contracted to do. But it doesn’t even look at these issues because it
decides that the plaintiff didn’t exhaust all of its possibilities with the policy review board
(litigants must exhaust all arbitration possibilities). Judicial review would have been
limited to whether or not the party has demonstrated a material and prejudicial departure
from the procedures specified in the credits manual (and it implies that they didn’t) –
contract issue.

How aggressive enforcement of arbitration agmt is: depends on:
      1. dynamics of relationship btwn parties – voluntariness of relationship
      2. what is at stake
        3. what the value of the agmt is.
Pros of Arbitration
        1. parties define the system
        2. quicker,
        3. cheaper,
        4. more private
        5. decided by an expert.
        6. To some extent parties can even control substantive law
Cons of Arbitration
        1. can’t be used to grant divorces, or resolve issues of public law
        2. not good of litigant want something arbitrator can’t give such as declaration of
        law, jury trial, formal discovery
        3. arbitrator may have no legal training
        4. inability to review ordinary errors of arbitrator
        5. in some cases is so formal and legal it’s even longer than trial
        7. Parties may try to force the burden onto third parties.
        8. Legal decisions have rules as public goods – precedent.

VIII. American Procedure in Comparative Perspective
Comparative Systems: German
I.      Pleading – includes proof and lines of proof; evidence up front to screen (US
leaves wide open)
II.     Timing/segmentation- no distinction between trial and discovery; more efficient
(get to crux), speed, eye on final decision..... judges decide both how much and what
relevant. Concentrated power (judge bias, ineptitude). No room for jury. Judge calls
III.    Witnesses- not tampered with (but not relaxed either); asked questions by court,
will take suggestions from lawyers.
IV.     Discovery- narrow on issue at a time; one time through; burden on judge (bias,
ineptitude) , no fishing. Will start will dispositive issues. Stronger protection for parties.
Judge directs the inquiries and obtains documents.
V.      Record- short summary (bias in the summary?) – will summarize testimony.
VI.     Experts- court appointed (requires involvement in discovery – or counsel request.
Not adversarial)
VII. App Review – de novo entire case, requires elaborate articulation of trial ct on both
fact finding and legal finding.

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