Civil Procedure II Ogden Outline

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					Civil Procedure – Ogden – Spring 2007 RES JUDICATA  Claim Preclusion; Issue Preclusion – Applies notwithstanding there is an appeal pending  Claim Preclusion Elements: o Final Judgment (law suit number 1(look for two judgments))  Verdict and then goes for final judgment. Final judgment is entered on a jury verdict o Must be on the Merits (LS #1)  In other words, must be with prejudice o Same Claim (LS #2)  Look at:  What was plead (same writ) (this was the only one in common law, and not followed much today) – as joinder rules got broader, then so did claim preclusion and the idea of code pleading o It includes something that wasn’t plead but it was close enough that it was apart of the same cause of action (see next)  Same cause of action (primary right) o Various contract remedies – restitution and rescission v. breach…couldn’t sue for on LS #1 and then try for the other in LS#2 o Issue wasn’t plead, but could have been because it is from the same cause of action  Same Transaction (broadest element) (can be different claims – towed cars and give rise to constitutional elements and tort elements) o Product of wide acceptance of FRCP. 15(c) relation back o Restatement 2nd of judgments – This same test makes sense to use as claim preclusion which parallels joinder rules. o Joinder of parties uses the same concept o This is broader than primary right because it allows different legal theories that arise out of common set of facts. Civil rights claim and state tort claim would be included o Same Parties (LS #2)  Exceptions to this rule  Privity  Non-mutual preclusion  Splitting – when you can argue another claim during the same trial, you should argue it and not sue separately; if you do it will most likely be waived o Most splitting cases are analyzed as involving:

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 Different theories of recovery  Arithmetical Splitting  Splitting of Relief Settling on the merits is the same as having a full trial on the merits and can bar future claims. CASE: Frier: Guy would illegal park his car. They asked him to move it. He didn’t. They towed it. He went to state court for one of his suits. After losing, tried to sue in federal court for lack of due process. The truth is that he got a trial 30 days later. o Used the same transaction test to see if it applied. What was plead— obviously would not be barred. If it was same cause of action—then it could go either way. Constitution v. Torts. Same Transaction—as noted rises around the common set of occurrences. (split legal theories, or split remedies). He could have argued both in the same suit. They did not let him split. Martino: Covenant not to compete in a McDonald’s franchise agreement. Franchisee broke the agreement. In initial consent agreement, there was not an answer. They had a settlement. The settlement was done on judgment. Res judicata barred because they could have raised the antitrust as a defense in the first suit.

PRIVITY RELATIONSHIP, DECL. RELIEF & FED V. STATE  Privity may bar someone from suit, though never being a part of the original lawsuit o Substantive Relationships Buyer – Seller (easement) o Express agreement to be bound by a decision of which one is not a party o Virtual Representation (aka, procedural representation (does A represent B))  Vicarious liability  Indemnification o Idea of control – US controls a contractor  §1783—Must abide by what the state law would have done for the preclusive effect.  Declaratory Relief: an exception to the bar of res judicata only where a plaintiff's initial action seeks purely declaratory relief  Searele Brothers: W tries to get land she thinks is her own from the H. The H loses. The sons try to get the property thinking its there. She tries to use Res Judicata. o The court said Res Judicata did not apply. It was a divorce proceeding so they could not intervene. Further, they were not served. Assumingly, the knew about it.  Gargallo: Got into a fight with State Farms. He counterclaimed against them, but it was dismissed. He then filed a federal law claim based of this same transaction. They tried to argue there was claim prelusion. The federal law procedurally applies the §1783, which states that he would need to give the same preclusive the

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state court would. The state court says that you can’t have a preclusive effect if there was no SMJ. There was an error in SMJ, so he wins. Mycogen: MPS entered into a K with Monasato for licensing rights. The court ordered monasato give tech licensing. They refused to do so. They provided genes, but not germplasm. MPS sued again, but it was declared frivolous. Tried to sue again for money damages. They lost under res judicata. o The declaratory judgment for specific performance was a binding agreement. In the first suit they sought more than just declaratory rlief. They sought specific performance too.

ISSUE PRECLUSION  Issue Preclusion is when you seek to bar one of the issues (cause of action in Negligence and not the whole claim of negligence)  Issue Prelusion (collateral estoppel elements)—Looking for same transaction, same claim, different issue… o Final judgment o On the merits o Same Issue: Three part test  Actually litigated,  determined; and,  essential to the judgment o Same Parties, Privity or NMP (Non mutual peclusion)  had previous litigated and lost against another D (not allowed)  Non Mutual Preclusion: o Defensive Non-M Preclusion—P has the possibility of suing two separate defendants because they are somehow linked. Three way car accident at an intersection. You can sue both D in one lawsuit, but suppose the P didn’t. Concentrates their energies on D1 who has the better car and therefore most likely more money. P loses against D1.  May conclude D is not negligent  Or P suffered no damages  Or P was comparatively negligent  So P then chooses to sue D2. With mutuality, when that requirement was in place, the P could split their claim, and D2 could not utilize the prior lawsuit. Mutuality essentially said you had to be bound. With the abolition of mutuality (modern) D2 could move for summary judgment based upon the judgment in LS1. Second D could take advantage of the loss in the previous lawsuit. The P in the first law suit must have a FULL AND FAIR OPPORTUNITY TO LITIGATE. This would only work if there was no damages or P was comparatively negligent to the point it was their fault. If they decided it was because D1 was not negligent, then we don’t know if D2 is not negligent.  There is no downside to not joining D’s 1 and 2. o Offensive is the more controversial (sword preclusion). It’s a different set of circumstances.

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Two different law suits. P1 wins suit P2 uses issue preclusion to win their lawsuit without going to trial.  In the very least you won’t have to prove every element of your prima facie case because it has already been proven.  However, if P1 loses the suit, P2 could still lose and preclusion would bar his issue. o Factors to look at for Non-Mutual Preclusion---(Analysis is for the parklane case below):  Opportunity to Join—these factors are to be considered after you see if there issue or claim preclusion.  The recognition of NMP is consistent. It creates powerful incentive to join all defendants, because that second defendant can say you lost your first, and now I will use that.  If the SEC had lost, Shore would not have been precluded by that o Offensive is not incentive for P to join together.  He couldn’t join. The SEC doesn’t want private people in there.  They will only allow private litigants to come in is if they consented to him.  There was no opportunity to join, so this one can’t apply.  Incentive to litigate  Did they have an adequate incentive to litigate the first lawsuit, knowing there was going to be a huge liability down the way.  This was not a factor because they set up their lawsuit first. o SEC stepped in.  D knew about the second lawsuit.  New Procedural Opportunities  One of the differences may be the scope of discovery. You may have broader discovery rights in the first lawsuit versus the second. Another examples is a court that may have limited jurisdiction over remedies. o There were no new procedural opportunities. This gets to the jury trial issue o Shore’s case involves a claim for damages. Damages are for jury. Equity claims are judges. The court said that the fact finder was neutral. Do we really believe the difference between judge trial and jury trial is neutral. Jury trial is a protection against an abuse of power. o In criminal cases, and in some degree civil cases, a jury trial action is in the very least different than a trial by judge. 4

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Inconsistent Judgments  There was nothing like this. Offensive Collateral Estoppel: a P is seeking to estop a D from relitigating the issues which the D previously litigated and lost against another P. (Allowed) Defensive collateral estoppel- a Plaintiff was estopped from asserting a claim that the P had previous litigated and lost against another D. (not generally allowed) Case: Parks: A woman collided with a train. She wins her suit. Her H, also in the car, tries to win on the issue of consortium. He loses. He then tries to sue for his own injuries. Claim preclusion didn’t bar under this State law. It was her suit, and we are not going to bring evidence of his back injury for her emotional distress claim. o However, in his lawsuit he got to uses what the jury decided in her lawsuit as far as causation, duty, and breach as preclusion in his. He didn’t have to order those. Parklane: Guy tries a class action in a federal district court. The SEC is suing the same party for the same reason, but different issues. The DC found the for SEC on the same claim. o The court allowed estoppel in this case. He could not have joined with the SEC. State Farm v. Century Home Corp.: A fire begin in a barn. It spreads. 50 lawsuit ensue. There were inconsistend judgments. One was for D and the other three were for P. This created an anomaly… The P’s could no longer use issue preclusion and D could relitigate. Faith in the system but when it’s in your face wrong, you can’t ignore. Federal Department Store: One lawsuit. The P lose. It braks off into the appeal group and the group that goes to state court. The state court group is barred by res judicata. Then a second case comes out changing the law. The state people could not take advantage of it. The appeals could relitigate.

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COLLATERAL ATTACK  Article four of the full faith and credit clause binds the nation together. State B has to give that judgment the same preclusive effect that State A would have.  In some cases you are allowed to bring a case in fed court and then another in state court o State A v. State B  Judgment was entered in CA and took it to Nevada to collect o Fed Court Judgment –  State courts have to give the same preclusive effect the Fed court would, which is an effect of the supremacy clause  (For the court to have the authority to enter a valid judgment) o Notice o Personal Jurisdiction o Subject Matter Jurisdiction  Default Judgment

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o On a default judgment setting, a faulting D is allowed to make a collateral attack on the enforcing state (where the judgment is sought to be enforced) as to one of the three issues; 1)notice, 2)PJ, 3)SMJ  The reason is b/c they never got their day in court  Duke: Petitioners brought an action against the Respondent in a Nebraska court to quiet title to certain bottom land situated on the MO River. The respondent fought jx throughout. He ended up losing. He then filed another lawsuit 2 months later alleging the land was in MO o Bottom land on a river that bisected 2 states. On that factual detail turned the Nebraska JD. If the land is not in NE, they lose any JD to make a judgment. The SC says that if you had a chance to litigate this issue fully that you have you day in court and you shouldn’t have another trial RULE 60(B)  A fed court can vacate or set aside a fed judgment under some circumstances: o Mistake, or inexcusable neglect o New evidence o Fraud/misrepresentation o Judgment is void o Judgment has been satisfied o Any other reason justifying relief  For rule 60b to be successfully satisfied you must show: a grave miscarriage of justice.  Beggerly: Beggerly had a fight with the US over land that he though was his. He settled with the US for a meager sum because he didn’t have enough evidence. 10 years later he had enough evidence and brings suit against the US. o They said that 60b(3) may end up helping them, but that it wasn’t brought in time. JOINDER Joinder Approach  FRCP Rule Requirements (e.g. Rule 18, 13)  Jx Requirements o SMJ or PJ  Preclusion Factor  Strategy o Why join or not Rule 18 – Joinder of Claims (permissive joinder)  Any party who has a claim for relief against an opposing party can (may or may not) join with that claim for relief any other claims against that same party o P can join anything that is related o Or, P can join anything that is unrelated. o Just needs to be against the same defendant. o Still need to meet all four approaches above though. o I have diversity, then we can bring all together. There is not same transaction or occurrence.  May be more complicated if it was based on federal questions. Lets say it as title 7 of violation of discrimination laws. Civil Rights 6

under 1982. Whether other claims are related or not are really important. Supp. JD will need to kick in. o Preclusions  If you only bring foundational claim, then the second unrelated claim that is apart of the same transaction may be barred, while a third may not as it is not apart of the same transaction. o Strategy  If you are going to be in court already it may be just beneficial and efficient to do it all at the same time. Rule 20 – Joinder of Parties (permissive may join parties)  It’s harder to join parties than it is to join claims  Three rules o Common right to relief  Relatively easily satisfied o Same T or O o Common Question of Law or Fact  Why would P want to ban together. Why join a bunch of D together? o May want to bring three or four D in as you may find one that is actually responsible. o Want the D to point fingers at each other, not an empty chair because you failed to join. o It’s more difficult to satisfy these joinder Rules.  Still need to satisfy JD requirements. Rule 13 (claim joinder – with a party joinder option) (deals with compulsory counterclaims – must join)  Counter claims are dealt by a D party and rule 13 needs to be satisfied (have to have an opposing party relationship to make the counterclaim operative)  13(a) is compulsory—brought under the same transaction (Counterclaim) o With transaction related Counterclaim, JD still have to be met. If P is a federal question and D’s is supp JD. o Same Transaction Test:  Same fact and law issues  Same K  Would claim preclusion bar  Same Evidence  Both have to use the same K.  Logical relation  It’s a tight question. o Must arise from the same aggregate of operative facts, in that the ame operative facts serves as the basis of both claim or the aggregate core of facts upon which the claim rests activates additional legal rights, otherwise dormant, in the D.  13(b) is permissive. If it is unrelated, then can’t bring that counterclaim. Can’t bring it because it won’t be under supplemental JD. It would need to meet original JD for federal court. 7

o May be brought, but does not have to be brought.  Plant: Plant was given a loan from D for 2,520, to be paid back in monthly payments. The Plant made no such payments. P sued under a civil action under 1640 of the Truth-in-Lending act for failure to make disclosures required by the Act and Regulations Z, 12 C.F.R. D counterclaimed on the note for the unpaid balance. The TR ruled in favor of the P for the statutory penalty and attorney’s fees. o Using 13(a) claim joinder. The same fact and law issues--- It was the same K they were looking at. This also fulfills the same evidence rule. Claim preclusion may apply. The judge said that it was logically related.  General Motors Company: Nine people try to sue GM and other car companies for similar practices that revolve around racial discrimination. The trial court, which was reversed, said that there should be separate suits. o Use rule 20 for party joinder. o Common right to relief  They were all seeking back pay. o Same T or O  Said it was based off the same public policy claims across the board. o Common Question of Law or Fact o There are common liability issues, which satisfies the common question law or fact. Don’t have to have exact similar issues. An employer is liable if they are discriminatory. This is on the outer limits of Same T or O, or Common Question of Law or fact. Rule 14 and 13 cont’d.  13(g) – Cross Claims (This is against ―Co-parties‖ as opposed to opposing parties) o Co Party o Needs to arise out of the same transaction or occurrence  Claim Joinder device o Need  P needs to name two defendants or more  Like suing employer/employee  P needs to join both.  Then the D are co parties for pruposes of rule 13(g) o D1 can have a cross-complaint against D2  Needs to be transactionally related o Indemnity Contribution—D1 sass well if I’m liable then you are completely liable to me too  Cross claims can assert damages claims brought by one party against another  13(h)—Allows for a D to join additional parties for asserting a counterclaim or asserting a cross-claim  Rule 14—Joinder of parties (Impleader) o Rule 14(a) allows a D to assert an action against anyone not a party to original action if that third party’s liability is in some way dependent upon

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the outcome of the original action. o Designed for limited liability or contingent liability and not damages. o Requirements:  Bring in new party defendant not named by the P  Do so for the purposes that are derivative or contingent  Based upon indemnity contribution.  Remember the three levels we need to look at: o Joinder o JD o Strategy  Price: Guy builds a chicken house and it breaks. P sues D1. D1 in turn sues D2 under rule 14. o Deals with whether there is joinder under rule 14. Apply 13(g) for a cross claim. (Rule 14 indemnity claims). If you go under 13(h) you need to satisfy the three requirements under rule 20. With rule 14 you don’t need to do that.  Kroger: P, administratrix brings suit based on diversity JD for damages resulting from decedent’s wrongful death by electrocution. o She sued OPPD and they brought in Owen. As power company gets a summary judgment she tries to sue Owen, which is now apart of the same lawsuit. Then OPPD win’s summary judgment and then she needs to sue D2. However, this has to meet JD requirements because this was brought under diversity JD and D2 was joined by D1  She didn’t bring them in so she loses because there is no diversity. Examples: P  D1 (dealer)  D2 (manufacturer)  He is trying to assert an indemnity claim  Two conceptual claims can assert o Manufacturer is already a party to the lawsuit o So need a device that allows you to join a new claim o 13(g)—He is a party of the claim so this is the one we use.  It’s a cross claim. o If not named, then we are talking about party joiner and would use rule 14 (could use 13h which uses rule 20, but that would be more difficult to use (need to meet the three part test)).  Let’s say dealer’s K was that the manufacturer cost them other contracts (this is a damages) o Now we would use 13  If manufacturer is already in lawsuit—13(g)  Not in the in lawsuit then look to 13(h) which would take you to rule 19 or 20  19 is harder to satisfy.  Manufacturer is in the lawsuit. They are trying to say that someone else did it. It’s not for money but just a defense. If this is the scenario, they are not asking for any money and therefore not a cross claim.

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Manufacturer wants to assert that the vehicle was not defective when deliver to Dealer has failed to pay for sever al vehicles that Manufacturer delivered to Dealer (not including the vehicle at issue) o Separate claim--Not transactionally related so have to file separate lawsuit.  Dealer is asserting P owes dealer money for breach of K that has no relationship whatsoever to the vehicle or accident at issue in P’s complaint o Not transactionally related o Claim—opposing party  This is a 13(b) permissive counterclaim  Already a party  Dealer and manufacturer both want to assert there was no defect in the vehicle and the accident was solely the result of P’s negligence: o No pleadings for joinder. It’s simply a D. Rule 19 – Compulsory Joined Parties  Three Elements o A person shall be joined (complete relief test) when  Personal JD; and  SMJ; and  There is proper venue; and  Complete Relief (a)(1)  When in his absence complete relief cannot be accorded among those already parties  OR  Meet Impaired Test 19(a)(2)(i) (focuses on absentee – is decision going to affect their interest?)  Suppose absentee has stock in property under dispute – they may have a competing claim…They may be adversely affected if someone in a lawsuit they are not apart of get those stocks  he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (1) as a practical matter impair or impede his ability to protect that interest.  OR  Inconsistent Obligation 19(a)(2)(ii) (look at judgment of existing parties in relation they owe to the absentee. If D has duties to the P and the absentee  Leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest  Court has very limited authority to use this on their own without motion 19(b)  Proceed w/o person or dismiss o If this party is too important, then we dismiss the lawsuit and send it off to a different forum o Four factors: 10

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Assess if the existing judgment would be prejudicial  Then look at reasons that made this person a necessary party Mitigation of prejudice  Can we shape the judgment that would lessen or avoid prejudice  Specific facts and recognize mitigation  Specific performance – order H to transfer his interest, but not W Do we have enough in this case to have an adequate judgment Whether or not P will have an adequate remedy if we dismiss the lawsuit  Can P sue somewhere else

Temple v. Synthes Corp. P sues one D in state court, and a hospital in an administrative proceeding. He then tried to sue the people from the state admin proceeding in state court. The state court ordered him to join the parties. He refused  Said that they were only permissive parties o They said they were joint tortfeasors. All of them could have done the nasty deed …could sue one, and then sue others o It may be more efficient, but rule 19 only mandates the joinder of parties when there is more than that at stake Helzburg v. Valley West (impaired interest analysis) THE FACT THAT A PERSON'S RIGHTS UNDER A SEPARATE CONTRACT WILL BE AFFECTED BY THE RESULT OF AN ACTION DOES NOT MAKE THAT PERSON INDISPENSABLE TO THE ACTION DETERMINING CONTRACT RIGHTS INSTANT FACTS: A jewelry store sued the shopping mall for violating its lease agreement and allowing four full line jewelry stores lease spaces in the mall. BLACK LETTER RULE: It is generally recognized that a person does not become indispensable to an action to determine rights under a contract simply because that person's rights or obligations under an entirely separate contract will be affected by the result of the action. PROCEDURAL BASIS: Appeal from the district court's order denying the defendant's motion to dismiss pursuant to Rule 19, Federal Rules of Civil Prodecure. Rule 24 – Intervention  Absentee  Litigant’s haven’t been joined because they don’t want other parties involved in the lawsuit o Perhaps for the sake of simplicity o Litigants interests can sometimes be impaired by stare decisis  If the other person loses and they didn’t get a chance to make their arguments then they may effectively lose by that judgment 24(a) Intervention of Right  Interest  Impaired 11

Unless Adequate Representation o Generally the other party that would be the ―would be‖ representative in the lawsuit must have the exact same interest o If not, the court will generally say they are not adequately representing the out of court party Timeliness – If you try to intervene close to the trial date, then the chances of successfully intervening deteriorates significantly Intervention procedures – Move to intervene, file appropriate pleading, get judge’s permission for intervention  Natural Resource Defense Council: Suit to stop people from giving out licenses. The people to receive those licenses want to intervene. One was let in thinking they would represent the other. This court says that the party let in would not adequately represent because they had a laches defense and the others didn’t. o Interest – The party involved has a strong interest in getting their license. They may get a competitive advantage if can sell out the rest of the industry for their own license  The other company’s best case scenario is to win and never have the EIS requirement imposed  Can’t block the requirement, then their subsidiary goal is to make this requirement the least onerous as possible  They may be all in the same industry they are also competitors – Interests are not quite identical o Impaired – Having to spend lots of money on the licenses  The D says there is no preclusion  The P say hey: stare decisis  This legal ruling is broad enough to cover other cases  May be able to bring suit, but their argument is probably not going to work  Phrase, we understand the decision but would like to make an argument for a change in the law (non-frivolous suit this way)  More expensive for the lawsuit  However, they get to try and bind them all in lawsuit o Represented? – No, their competitor cannot be expected to adequately represent their needs. They are competition and already have a license  Interests are similar but they are not identical  Particular when the absentee, as here, makes a showing that their interests won’t be adequately represented  Martin: The City of Birmingham (―City‖) and the Jefferson County Personnel Board (―Board‖) entered into a consent judgment with black firefighters for discrimination in hiring and promotion of the latter. Subsequently, white firefighters (―Martin‖) (P) brought an action against the City and the Board (D), alleging that the promotions were in violation of federal law because they were based on race. The City and the Board (D) defended on the ground that the consent judgment precluded the current suit. The Court of Appeals reversed on

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the ground that the consent judgment did not preclude the current suit because the white firefighters (P) were not parties to the previous judgment. o A consent decree in this arena include injunctions. In the intial lawsuit they did not include white firefighters that would have been affected. If the consent decree affects these parties, then what do we do about their rights. Tow lines of authorities: o Notice to intervene  If they were given notice but chose not to, then they are bound by the consent decree. o Or you must bring these parties into a lawsuit on your own.  Could have brought them in under rule 19. It may subject the city to inconsistent obligations if they are not joined.  Lack of complete relief Rule 22 – Interpleader §1335  Rule 22 o 2 or more claimants to one piece of property  Try to add as many people as you can  Once a judgment is made then all those parties are bound  If not bound, can bring another’s suit o Stakeholder – Person has possession, but has to turn over the property to the true owner, who they don’t know who it is o Could have two separate judgments this way. CA court can reward it to Joe and NY court can reward it to Jim. Stakeholder has to pay out twice  He can’t sue both because he may not be able to get personal jurisdiction o Two distinct situations when Interpleader is used  Mutually exclusive claimants  Fits cases where there is a fund of money and two people argue which one is their’s  Money is held by stakeholder  Interpleader protects the stakeholder from double liability  Stakeholder doesn’t really have a stake in who gets the fund  Equally Entitled claimants  Here the intention is to claim that we have a fund and there are many people who have a claim to that fund o This is the State Farm case – Mass accident or Mass Tort case o Without Interpleader then the first to file suit exhaust the fund o With Interpleader there is pro rata distribution  Statutory Interpleader o Low Threshold  All you need to show is 500 dollars  2 or more adverse claimants of diverse citizenship

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Stakeholder has to deposit the money or property with the court and agree to the court’s decision  Stakeholders are excited about it  Can have both equally entitled claimants or mutually exclusive claimants Rule Interpleader o Higher threshold o Need to satisfy general applicable requirements for subject jurisdiction, personal jd, venue o Additional remedy (alternative) o Most Interpleader claims arise under state law Mutually Exclusive Claimants o Just need minimal diversity to satisfy jd o Amount in controversy – 500 Rule o Can have a fed question; if not complete diversity  Compare stake holder and the competing claimants who are the Ds  Normally the claimants would be the P…however because the stakeholder invokes the Interpleader he becomes the P  1331 – no amount in controversy  1332 > 75,000 §2361 – Nationwide service of process and territorial jd through the US…FRCP – JD is limited to state boundaries plus the long arm statute in the state § 1397 – Venue is proper in any district in which claimant resides § 1391 – Standard options § 2361 – Interpleader court can enjoin any other state or fed court proceeding dealing with the same claim or property § 2283 – Same under injuctions act exception where necessary in aid of its jd (no diff between statutory and rule Interpleader) Cohen: Guy has a painting…Not sure who it belongs to. Bring this action to figure it out so he doesn’t have to pay twice (he’s the insurer). One person who wants it uses Rule 24(a) to bring herself into the suit o Impaired Interest o None of the parties represent her interest State Farm v. Tashire: A bus collides with a truck. The insurance policy only allows for a max 20000 recovery. The driver will be judgment proof in this situation. They would pay 20000 max. They came up with a strategy of suing in an Interpleader court in Oregan. The court entered an injunction joining all other lawsuits in one location. This triggered review by the 9th Circuit and the Supreme Court. Supreme Court raised on its own motion for SMJ o Was minimal diversity in § 1335 consistent with requirements of article 3  SMJ – Lower court said you need a judgment before you could have an Interpleader type of claim. However, then you have a race to judgment b/c the first people to get one gets money  Claim – scope of Interpleader…you need a claim  Scope of IP – Can’t be so broad that you enjoin all actions 14

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arising from the same accident Appropriate scope is claims by P against this insurance fund…Judgments against greyhound or the driver would not be included. Can’t bring that to Oregan

Class Actions – Rule 23  Class Action Prerequisites o Numerosity: ―The class is no numerous that joinder of all members is impractible, 23(a)(1) o Common Questions: ―There are questions of law or fact common to the class 23(a)(2)  Gets to the hear and utility of a class action lawsuit  Claims don’t have to be a mirror image  Just have to have enough common elements o Typicality: of the representative claim: ―The claim or defenses of the representative parties are typical of the claims or defenses of the class 23(a)(4)  Representative have to be similar because we think that they have sufficient interest to trial the case to the best of their ability  Doesn’t have to be exact o Adequate Representation: The representative parties will fairly and adequately protect the interests of the class 23(a)(4)  Gets to the heart of the Constitutional effect of Class representation  Binding people that never argued their case  Four types of Class Actions: o Inconsistent Adjudications: 23(b)(1)(A) – Look at members of the class and determine individual lawsuits would create the risk of inconsistent adjudication o Impair Interest – The prosecution of separate actions by or against individual members of the class would create a risk of …adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect the interest  Distinguish the interest of class members. Think State Farm – because of the number of people involved it may impair other interests  Trust Litigation o Injunctive Relief (b)(2)  Equitable Relief. Injunctive against defendant, usually. Non class party has treated the class members similarly. Common pattern of practice  Treated them in a way that is illegal  These are not appropriate when the exclusive or predominant remedy sought is money damages o Common Questions Predominate (b)(3)

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The court finds that the questions of law or fact common to members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy  It’s hard to establish that certification is improper  Some of these claimants have substantial claims  Most are brought under this Communities for Equity: County-wide school policy to promote boys sports instead of girls. Bring class action lawsuit o Numerosity – Current athletes and future athletes o Commonality – the common question is whether the high school broke the same law o Typicality – variety of the alleged discriminations. Still enough discriminations to make an overarching case. The underlying policies of the schools. o Adequate Representation – There could be members who are happy with the status quo. However, the purported class proposes to help those only who are adversely affected. And as P suggests the interest of those class members who are not adversely affected will still be adequately represented as long as both those seeking to uphold and those desiring to strike the particular regulations are adequately represented. We could also make sub-classes o Chose 23(b)(2) – Injunctive: IS appropriate because they are asking to stop them from performing the way they are. We can change their policies  One problem is mootness. Lets say our lead P is a high school senior. If it takes a couple of years the kid may be out of high school and their claim is no longer liable.  Precedent—May argue that the precedent is narrower than the new plaintiff may have though  Preclusion—then all class members are all bound.  D may have an advantage so they don’t have to defend all these lawsuits.  If Certification is granted  Much longer  If certification is rejected--- lawsuit has become far smaller o D can settle their case and not have to worry about this particular problem. Heaven: —P bought car and alleged D failed to disclose but argued no actual damages and sought to certify a class. D counterclaimed that individual class members had defaulted on the terms of the lease/made false statements in lease apps. o Are counterclaims compulsory—therefore in supp JD (Similar to Plant). Sued under b(3) because no other categories fit. The court below considered the nature of Sun Trust's (D) counterclaims and determined that individual lessee counterclaim defendants would be compelled to

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come forward with individual defenses. This would require the court to engage in multiple separate factual determinations. The court also determined that the interests of some individual class members in controlling their own case would be compromised. Rule 23(c)—Certification Procedures (2003 amendment) o Historically—we have various certification procedures depending on the class—there was no right to notice in (b)1 or (b)2 o Assumptions  These classes were more likely to represent an interest o With b(3)—requirements that they must be notified, the main concern was whether the group was cohesive with a great number of conflicting interests o (c)1—general requirements for all types of class actions  Must be certified at an early practical stage o (c)(1)(b) if they certify, they must define the class and the claim issues and defense issues o 23(g)—must appoint counsel o Certifications Orders  (c)(2)—gives authority to give notice to class-but not required  (c)(2)(c)—b3 certified class, must give notice to all members. Notice must cite in plain language several aspects  (c)(3)—has to do with requirements for the various judgments  (c)(4)—has to do with partial class actions  So basically, the amendments gave more specificity to the judgments, directions to judge and only made it madatory to give notice to the b3 class Hansberry v. Lee: Tried to keep black people out of the area. Needed 95% of the signatures to do it. They only got 54%. Hansberry tries to move in. A prior suit could have established res judicata. o However, there is a failure of due process where the procedure adopted does not fairly insure the protection of the interest of absent parties who are to be bound by it. In the original case at hand, which found the covenant effective, the procedure did not adequately protect the interests of Hansberry (D) and the sellers. First, the restrictive agreement did not purport to create a joint obligation or liability. Rather, the racially restrictive covenant was a series of several obligations of the signers. Second, the signers seeking to enforce the agreement cannot be considered members of the same class as those signers seeking to challenge the validity of the agreement or to resist its performance. Phillip Petroleum: Class actions are brought against Phillips. The members are from all over the state. Sue in Kansas, which would allow for recovery on interest. Phillip says that not all the members live in Kansas so they should not apply Kansas law to all of them. Most were from TX so they should apply TX law which wouldn’t have allowed for interest. o Court says no. We don’t need PJ because this is not a D  Burdens are less so we don’t have to worry about Personal JD.

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We don’t need that much protection, because the burden is on them! The 14th amend. applies. The absent Ps are given some protection. We Hold that a forum state may exercise JD even through a P may not possess minimum contacts. Can be bound with a lesser showing and don’t need minimum contacts. Furthermore if they are going to bind an absent P, it must provide minimal due process. (notice is practically the same as D’s MC) Practical Notice, Notice should describe action and P rights. At a minimum the P must have the opportunity to get out of there. They also must be adequately represented  Not a certified member of the class, and they opt out, then res judicata won’t bind them. o Choice of law  Does due process limit the circumstances that Kansas can apply its law…the court says yes, KS can only use law for claims that have a connection to the state  We look at P’s connection (domiciled there?) with forum state (which we don’t use in MC)  Look at connection with D  Where C/A arose o Can apply your land to where the leasehold interest is (KS) o Royalty was in other states  What if you can’t apply KS law? o It is going to make it a lot more difficult o Some states allow and others don’t o It’s a much weaker case too when deciding if common questions predominate when you have to apply from different states o You would need different representatives from different states  The KS court may not be adequate enough to represent the interests of the TX Ps.  If we had to use an opt out approach o You wouldn’t have had PJ – likely have 28000 people opt in…probably not. How do you get them to return those forms Amchem: Asbestos suits. Want to sue for present and future claimants. Future claimants don’t exist yet. Don’t know if they are going to get sick or not. o The SC said that while settlement cases are beneficial and to some degree different than class actions, nonetheless they have to meet 23(a) and 23(b) and this was a (b)3 (present or future claim for damages) we have to make sure common questions predominate. The SC said that such an element could not be met. There was not enough commonalities  Adequate representation was not met either. The lawyers would be arguing for their present claimants to get them as much money.

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We could separate them into smaller groups, but who would represent claimants that don’t technically exist adequately? Diversity Class Actions: Look at the citizenship of the class representation only for complete diversity. o Snyder—Single P can aggregate all their claims together (but, only if linked very closely)  Some may meet this test, but most will not.  You can never satisfy this requirement with many of the classes….  75,000 dollars and people are only winning 100. o Zahn—  Not only must the class rep meet this, but all class members must.  Small claim classes cannot be brought into federal court. o Recently we have stepped away from the Zahn rule with 1367  So long as you are a named representative satisfy the amount in controversy requirement or original jd requirements… Notice Costs o 23(b)(3) Class representative must pay for notice costs. o Reasonable methods of notice  Reasonable notice under the circumstances.  Do investigation—identify specific people… send them a letter  If not, you have to specifically advertise. Class Action Certification Decisions o It is conditional and may be changed by the judge before the trial on the merits.  Mass tort cases where you don’t have a single accident. Appeals of Class Action Certification Decisions o These are rare. Generally because they go through many steps to make sure the class action is good. o Preliminary injunction decisions are especially appealable. Settlement Class o If the settlement wins, then all the others have sword preclusion. o Parties negotiate the settlement prior to certification  Then the court decides after the fact if they will certify a class action  Then they ask if the settlement will satisfy a remedy.

DISCOVERY General  Pre 1938 – limited discovery area o Focused on inadequacies of preparation for trial o Lawyers didn’t know as much and a lot of cases were decided on surprise evidence or witnesses  FRCP Reforms 1938 why o Achieved a lot of reforms – merger of law and equity, broader rules of joinder

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o Adopted essential elements that broadened discovery to watch they are today o Western Europeans don’t think much of our discovery system o However, it did solve problems  Trials became about the merits  Modern Era o Over-discovery:  Desire some litigants to ask 1000s of questions  Seek too much info…costs too much  Tactic used by rich people to drag out a lawsuit  Don’t have time to discover everything o Under-discovery  Lawyers try not to give info that is clearly called for  Pull it out with motions to compel and request for sanctions  The damaging documents are buried o Products of the advocacy systems  Modern Reforms o Mandatory disclosure  Certain things you have to disclose up front o Management (judge)  Don’t leave discovery solely up to litigants o Discovery limits –  Number of interrogatories o Sanctions  Much more wiling to impose sanctions  Move to strike answer (can’t testify or use in evidence)  Guy continually fails to show up for deposition  Discovery Purposes o Settlement  High percentage of cases are settled  Discovery gives you an honest and realistic look at your chances on the merits o Summary Judgment  Are there really issues of facts here?  Discovery may cut out trial completely because you will find out there is not triable issue of fact o Trial Preparation  Key thing the advisory committee was thinking about  Can do a much better job preparing your case if you do discovery  Theories you thought were strong turn out not to be strong  Theories you haven’t thought about may emerge and your best theory was something that was only a tangent in you original argument Rule 26 (case law)  26(a)(1) – Mandatory disclosures

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o Required initial disclosures – Must disclose specific information without waiting a discovery request  (A) info about witnesses – name, phone, address of likely people you may use. Can subpoena them to deposition  (B) Documents – A copy of, or category and location of, all documents, data compilations, and tangible things that are in the possession, custody, or control of the party and that the disclosing party may use to support its claims or defenses  (C) Damage computations – materials which show how the damages were calculated  (D) Insurance agreements – In a lot of civil cases it is important to know if there is insurance coverage  The reason for this is if there is no insurance then there is no reason for filing a lawsuit  (E) Cases where it doesn’t apply (administrative cases)  Last part – Need to be made within days of discovery conference b(1)—Scope of discovery o One of the areas where discovery was narrowed  Tells u parties may obtain discovery regarding any matter not privileged that is relevant to claim or defense of any party  Material cant’ be privileged and has to be relevant.  No GI Material facts  Duty of care  Breach  Insurances  Causation  Damages o ****Relevance is something that tries to disprove a material fact. Davis v. Precoat metals-- P were racially discriminated against by the employer. P’s seek to add discriminating statements against their employer from past employees. They narrowed the statements to people of the same ethnicity and similar time period, at the same plant. o Develops a pattern of practice—sift through claims of other type of discrimination and merely bring forth what is there. Litigators want to look at a lot of information to see what can help their case. Steffan v. Cheney: Joseph C. Steffan (P) was a naval officer who resigned from the military in 1987 after an administrative board recommended his discharge after Steffan's (P) admission that he was a homosexual. He was not discharged for any homosexual conduct. In 1988, Steffan (P) filed an action against the government (D), represented by then Secretary of Defense, Dick Cheney, to challenge the constitutionality of the regulations that required the discharge of admitted homosexuals. o The court ruled that the evidence should not be admitted. Different than Davis because it was an administrative case. In an administrative proceeding you have to base your decision on the record meaning on the 21

evidence that was presented at the administrative hearing or trial. In this cae the discharge was based upon statements regarding sexual orientation, an d not conduct… o Could only inquire into what he said in the record. Areas of Confidentiality  Ways to get info o Asking Questions  Interrogatories  Depositions o Information  Was it relevant  Claims and defenses  List all affirmative defenses applicable o Just so they don’t miss it o At worst the discovery will say that it’s not necessary  Admissible evidence is included plus things that are not admissible o Unless Privileged  Holder’s of Privilege  953 – If a client has no guardian, then that info is not admissible into discovery  954 – Any info given to a lawyer is privilege…a client can even stop third persons who may have overheard from giving that info  Attorney-Client Privilege (Upjohn Case) o Subject Matter Test (Federal Test)  If there is the appropriate subject matter, then all employees can be protected under the attorney client privilege  Upjohn – companies can deduct related business expenses from their gross income to get their net income…Supposedly there were bribes. IRS subpoena’s the files of the corporate counsel o Upjohn said that it was protected o The SC said in this setting covers all employees in regards to communications o Control Group Plus (CA and Maj) – It’s in between the one above and the one below  Includes corporate management  Co-Ds  Subject to civil liability under respondeat superior  Reporting employees o Not included is pure employee witness – e.g. an employee that witnessed the crashing of a truck, even if a passenger. If an attorney talked to him, it 22

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would not be privileged o Control Group – corporate management is protected and nothing else  Corporate attorney needs to talk to people outside corporate management  Attorney is going to want to give those people advice Ethical Duty of confidentiality o Applies to court room and while under oath o Privileged info is in the smaller circle o Confidential info is everything that is exchanged between a client and a lawyer that is not in that privileged setting Motions o Motions to Compel – Rule 37(a)  Power of the fed court to enforce that order o Motion for protective order 26(c)  Say that it’s privileged so you don’t have to disclose it  Have administrative remedies  This is an attempt to mediate or settle a discovery dispute before you go to court  Prohibit the discovery, limit the methods of the discovery, limits the scope, limit who can be present, limit trade secrets. (We have to go through this ourselves.) Stalnaker Stalnaker (P) was an employee of Kmart (D1) corporation. She filed suit against both Kmart (D1) and a fellow employee, Donald Graves (D2), alleging that he created a hostile working environment and sexually harassed her by engaging in inappropriate touching. Stalnaker (P) issued depositions for four non-party witnesses who had relationships with Graves (D2). Graves (D2) moved for a protective order protecting these witnesses from discovery, especially regarding any voluntary romantic conduct or any sexually related activities with Graves (D2). o The party seeking a protective order must establish good cause showing "a particular and specific demonstration of fact, as distinguished from stereotyped and conclusory statements."The court said stuff that had nothing to do with the D is off limits. Conduct that relates to that supervisor though is discoverable. The court said anything that had nothing to do with the D is off limits. Conduct that relates to that supervisor though is discoverable. Schalagenhauf v. Holder: A person is in an accident. He said that he could not see the truck in front of him which were possibly less than ¼ of mile away. They DC subjected him to 9 examinations. This court said that nothing in the pleadings affords a basis for the belief that Schlagenhauf (D) was suffering a neurological illness warranting mental examinations. In fact the only allegation made in support of examinations was the contention that Schlagenhauf's (D) eyes and vision were impaired o Said that can subject him to examinations, but only ones that wre relevant to the pleadings. The fact that his vision may have been impaired allows for such a test. However, psychological examinations and the sure are not

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warranted or needed. Work Product And ABA Code:  Work Product--Rule 26(b)(3) p.72 of federal rules pamphlet--- Elements of this privilege (qualified privilege not recognized in the evidence code)… o Documents Discovery (not testimonial) o Prepared in anticipation in course of litigation or trial. (pre litigation documents with knowledge trial is doing is also protected o Another Party or Representative—Other parties attorney, insurance agent, or representative (doesn’t just have to be a lawyer) o Substantial need—Must show connection between these documents and the case—can’t be tangential material. o Undue Hardship—You can’t really obtain the equivalent of these materials in any other way. o In the long run, we don’t want you to give away your strategy- ABA Model Code: o Lawyer has a duty to be a zealous advocate  Fueled by ethical duty of loyalty to their clients. o Zealous Advocates within the bounds of the law.  Duty is to help your clients.  Freedom and discretion to engage in their advocacy without that advocacy being disclosed to the other side.  If they didn’t come up with their own theories, then two things can happen  Stop caring  Or put everything in their head and never write anything down.  Hickman v. Taylor: There was a tugboat accident. Attorney for defendant goes and talks to survivors. These are witnesses, but the court says that the notes he took with these witnesses are privilege. P wanted to get the notes to get an notion into D’s strategy. o Court said we won’t let you have that stuff unless the witnesses are not available anymore. The D has a right to see which witnesses he wants to use. Experts  Used when the facts are beyond the knowledge of the typical lay juror  Fact witnesses that may be physicians or such are not always experts  Credibility of an experts are required to make reports. These reports are very detailed, and are discoverable  Difference between Expert and Fact finder: o Experts can use opinions and hypos whereas fact witnesses cannot.  (1)(a)(2)o Add on to A1 in previous class:  Parties shall disclose to other parties the identity of any person who are used at trial to present expert testimony  Report must be disclosed. o Obligations relating to experts apart of the initial disclosure 24

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o If an expert must disclose. (2)(b)(4) o (a) Testifying experts--Experts are who are going to testify at trial, an expert can opine what a standard of care is (when it is an expert profession).  What would a reasonably competent attorney have done in these circumstances.  Can be deposed by the opposing counsel.  Three reasons o Possible impeachment o How good they are o Want to prepare for trial to meet that testimony  Or at least prepared to cross examine.  Must have a lot of advanced preparation to make sure you don’t look like a fool when talking to the expert.  Forensic Eperts--So you hire experts of your own just so you know what questions to ask them. They are consultants. o Lawyer retained them and didn’t like the opinion.  Try to find out enough about the facts of the case before you agree to be retained. o May never testify and as such, they can’t be discovered. o Non-testify expert  Opinions or statements if not be called to trial can only be discovered if they are a treating physician or under special circumstances.  Little bit tougher standard to meet. Thompson v. The Haskell Co.: Thompson (P) hired an attorney who retained a psychologist, Dr. Lucas, to perform a diagnostic review and personality profile of Thompson (P). On June 15, 1992, Dr. Lucas prepared a psychological report. Haskell Company (D1) sought discovery of Dr. Lucas' report. On May 13, 1994, Thompson (P) filed a motion for a protective order to prevent Haskell Company (D1) from discovering the report. Thompson (P) argued that Rules 26(b)(3)-(4) of the Federal Rules of Civil Procedure protected the psychological report from discovery. o There was one opportunity to assess her mental state at the time it would have been worse. We can’t go back in a time machine to do it then. So they say it’s not information that can be used by the defense attorney because its too far into the future. They say this meets the exceptional circumstances. o May be important that the expert didn’t testify… Chiquita Bananas: Bananas went bad on a dock. They motioning party didn’t get expert witness statements at that time, though they had the chance to. The court said that you can’t use the non-motioning parties witness. We won’t let you off the hook for not doing your own work. Court classified him as a witness.

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However, this argument has no merit since International Reefer (D) had an opportunity to send its own expert to the scene when the ship arrived in Germany. There were no forces beyond its control that would have prevented such an inspection by International Reefer (D). Discovery – 26  26(b)(2) factors for denying discovery o Unreasonable cumulative duplicative  Less expensive method/source o Ample Opportunity to obtain discovery o Do burdens outweigh benefits  Look at:  Amount in controversy  Needs of case  Parties’ resources  Important of issues  Importance of proposed discovery  26(d) – Discovery conference must be held prior to discovery  26(e) – supplement responses and disclosures when they learn of additional information which makes their initial answer incomplete or incorrect  26(f) – Discovery conference – requires parties to meet and confer to consider the nature and bases of their defenses and also facilitate settlement. Mandatory  26(g) – Signing Certification – all discovery documents must be signed and meet these requirements. After a reasonable inquiry there must be (this is just like rule 11): o Legal merit o No improper purpose o Not unreasonably expensive or unduly burdensome 37 Sanctions – Reasonable  A(2) Lawyer in good faith attempted to get the other side to comply without court orders  A(3) Lawyers give an evasive or incomplete answer that is viewed as a failure to answer and are open for sanctions  A(4) Attorney’s fees – reasonable expenses (attorney’s fees) o Will awared unless the motion was filed without making good faith effort to do it without the court intervening.  37(b)(2) – more serious sanctions that courts will award o Fact presumption orders  Establishes truth for purposes of the lawsuit  Defenses counsel and client refuse to show design about product…court could by fact presumption establish that the product was defective which may establish liability o Evidence preclusion orders  Court will order that the party that did not provide the discovery is not permitted to provide evidence at trial o Striking pleadings (default judgment)  (drastic – death penalty) takes away parties’ right to participate in 26

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the lawsuit  More likely to do it when parties stonewall o Contempt of the Court  Most serious – Lawyer or client pays an immediate fine, or they go to jail  Rarely used in discovery process  Judges are not eager to use this one Thompson v. Dept of Housing & Urban Dev: wanted to prove prejudice against African Americans over a long period of time. Asked for a lot of discovery. This lawsuit was very broad and carried many generations o The question here is whether or not the discovery requests sought under rule 34 was whether they provided discovery consistent with this narrow scope of discovery o He said to meet and confer to come up with some way to make a compromise. Start small. Request 5 years of documents instead of 20. o The discovery dispute that came before the judge happened when it was very early. The judge didn’t have the time to assess each parties’ style. Didn’t do sanctions because one party didn’t set up a bad pattern…it was too early. Poole v. Textron: History of D stonewalling and failing to purport with discovery orders…including motion to compel. This was even over simple questions like what model golf cart it was. The court used his actual name. o The last paragraph awards sanctions and name the specific lawyers. Unlike rule 11 which will hold the firm responsible, rule 26 makes you just worry about the individual client.

Pretrial Conference  Purposes or objectives for pretrial conferences. The objective cover the five purposes (sometimes these things conflict with on another, but it is up to us to make them work together the best they can) o Objectives o Schedule and Planning o Subjects o Final Conference o Final Order o Sanctions  Settlement o Trial preparation  Judge makes sure that they are going to trial with only th issues under dispute  Helps to set up amended pleadings  Simplification of issues  What issues are you going to offer  What documents  Allows facilitating when witnesses are going to go and how trial will play out

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 Try to eliminate frivolous claims or defenses  Have all this to provide greater judicial management of pretrial process  Scheduling and planning  Has to occur within 120 days after the complaint has been served on D and after 90 days of the appearance of the D  Part D of rule 16 – FINAL PRETRIAL CONFERENCE – approximately two percent end up going to trial  Close to time of trial as reasonable under the circumstances  Deals with jury instruction issues  Witness and document issues  Part E – malpractice avoidance – manifest injustice  Pretrial order is going to supersede the pleadings in terms of the issues that will be litigated at trial o If not there then you can’t plead it  Part F – Sanctions –  Lawyers or unrepresented parties don’t follow schedules or don’t participate can award sanctions o Sanctions are same as discovery order o Summary judgment  Formally at issue, but reality is there is nothing to go to trial with  This can be summary adjudication or summary judgment  Simplifying issues o Judicial management  Always have a lot of balls in the air. Use this to counter Lawyer’s natural temptation to procrastinate. You have too many cases and too much work and not all of your cases are going to be filed in the same court system or the same district o Efficiency Rule 16 controlling over Rule 15(b) – o If you can show evidence outside the pleadings was relevant to the merit and there was some prejudice, then the court would allow a continuance o No final pretrial, then this is controlling o However, if you have a final pretrial order, then it fixes the pleadings and are subordinate to the rules of 16 Sanders v. Union Pacific Railroad Co: Sanders' (P) counsel failed to comply with any of the requirements of the order. He consistently submitted documents late, and never submitted a trial brief. At the pretrial conference, presided over by the judge's law clerk, Sanders' (P) counsel explained that his inability to meet deadlines was a result of responsibilities in another case. The clerk suggested that the case would be removed from the calendar and the judge would likely take other action. One week later the court dismissed Sanders' (P) action with prejudice. o The court emphasized very much the requirement here of joint preparation. There was significant prejudice to the opposing party. Because the lawyer didn’t bring this problem up in a timely manner, there 28

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was not time for lesser sanctions. So it’s either you continue to trial with the prejudice on the opposing party or you get your case dismissed. The District court judge dismissed with prejudice. Mckey v. Fairbairn: There was a pretrial conference for negligence claim. During trial the P realized that there could have been a housing code violation. o Should have plead broader and put it in the pretrial order. The judge said that the other side could anticipate the dangerous issue. They couldn’t anticipate the other issues. Thus there is some kind of prejudice to them. Under the traditional rule 15b philosophy, and it is relevant to the merits we would give you a continuance. However, when it’s under rule 16 then we are not going to let the continuance happen.

Right to Jury Trial:  7th Amendment o Initially only applied to National Government and not the states  Doctrine of post civil war amendments changed this  Incorporation clause jurisprudence used 14th amendment to make these amendments applicable to the state  7th Amendment is an exception and has never been incorporated to the states  Most States have this however  If you don’t demand a jury trial on a timely basis then it is waived o Just like Personal Jurisdiction  FRCP Rule 38 p. 108 o Right to jury trial should be preserved o Have to demand a jury trial, and the demand has to be filed and served on opposing counsel. The earliest state you could serve this demand is at your pleading or complaint  Can’t do it after 10 days o May specify which issues the jury trial applies to  If not then it is assumed all issues go to a jury o The failure to serve as required constitutes a waiver by jury  Preclusion o If you have two separate trials – One goes to judge and the other to a jury. If you lose on the judge trial, we won’t let you bring up a jury trial  Two part test to determine if we need a jury o Nature of issues (type of claim) o Remedy sought Examples of when we need to have a jury trial and when we don’t  P and D sign a K o P alleges breach of K and seeks money damage  Yes o P seeks specific performance  No-- (equitable remedy) o P contends that the agreed price of the goods in question was 200K but

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that through a typing error the K read 100K  No Jury—(reformation) o P alleges that D tricked her into signing the K by fraud, seeks to have purported agreement rescinded  No Jury (rescission) P and D own adjoining real property P alleges D is committing a nuisance on real estate adjoining P’s land… o P seeks damages for harm caused by nuisance  Yes (jury trial – damage claim—compensatory damages) o P seeks an injunction  No P alleges that D has taken his diamond ring o Seeks to recover its value  Yes (recover damages—jury trial) o Seeks order restoring ring to his possession  Yes (because it’s personal property (common law writ of conversion)) P alleges that D wrongfully occupies BA o P seeks damage resulting from D’s wrongful possession  Money damages so it’s legal and you have a right to jury trial. o P seeks to eject D from property  Yes—ejectment is to get possession back, which is a legal remedy. Restitution based remedies o Most are no jury unless just for money Profits for fraud are equitable Chauffeurs v. Terry: When we are looking to whether the action is equitable or legal in nature, we should first look to history. If there is not history of cases then we need to analogize. Here the workers were asking for back pay. P filed suit against a Union after they didn’t file the complaint to a grievance committee. The P claimed that the Union (D) violated its duty of fair representation o The court found the case to be analogous to a trustee and trustor. The remedy sought were largely compensatory damages so they said there was a right to a jury trial History of How to Deal with Equities/Legal Remedies o Traditional (unchanged – suing for breach of K – direct historical analogy) C/A – use chart o New causes of action (Terry Test – similar to historical test – can’t find something right on – so you use analogies) o Judicial Changed Procedures (Use Beacon Test) o Administrative Agencies Hybrid Cases o Hybrid cases are generally going to be legal remedies and require jury trials o Compulsory Counterclaims/Permissive Counterclaims: A compulsory counterclaim for legal remedies turn a bench trial into a jury trial. This is why you always bring forth a compulsory counterclaim as opposed to a

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defense  Permissive counterclaims may be held the same way o Stewart Rule: Stewart rule in hybrid cases was the first in time the first in right. That was rejected in this case. This was rejected by Beacon. o Amoco Oil Co v. Torcomian: The Ds were the alleged or actual franchisee. The P sought ejectment (legal), Permanent injunction (equitable), judgment for lost profits (legal), and Mesne Profits (may be equitable). Not wanting a jury trial they deleted portions of the complaint asking for money. D brought actions for legal claims.  Court said because there were legal claims on both sides that a jury should decide it o Beacon Theatres: Beacon got mad because Fox was buying out movie theatres and only allowing their films to play in those theatres. Fox saw that beacon may sue, and it would be antitrust where you have to pay three times what you won. So they filed for declaratory judgment. Declaratory judgment would be without jury trial. Beacon made a compulsory counterclaim for damages. One of the issues was Beacon and Fox close enough to be in competition with each other. If they don’t bring this counterclaim, then it will be precluded because of the rules of preclusion.  This court said we have to preserve right to jury trial and to do that we have to try the jury claim first. We can’t take away those rights, but we can expand them. To preserve the right to jury trial we have to have common issues and those must be tried to the jury first. Administrative Procedures and the right to a jury trial o New Procedures  Administrative agencies  Executive Adjudication o Preservationist  Public rights  Agency Adjudication (no jury)  Court adjudication (jury) o Atlas Roofing v. OSHRC: OSHA passed in late 1970’s. Congress made the policy judgment that existing remedies were not adequate to respond to work place safety. The agency was divided. The agency that adjudicated them was independent from the agency that created the regulations. There was a system of inspections. When a company did not comply with it, the agency could issue an abatement or injunction. They could impose civil penalties. Administrative law judge would adjudicate the challenges to the standards. Jury trial rules were not the same in regard to private civil litigation.  US Const Amend VII did not prevent Congress from assigning to an administrative agency the task of adjudicating violations of OSHA without a jury b/c VII was never intended to establish the jury as the exclusive mechanism for fact finding in civil cases Right to Impartial Jurors –

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o Voir Dire: Identify challenges for cause o Appellate court must find that the judges ruling was legally erroneous and it was harmful o Thompson v. Altheimer & Grey – P alleged on appeal that her constitutional rights to an impartial tribunal were infringed b/c a biased juror, an employer who had regularly dealt with the issues of the case, was not struck for cause. P did not remove the juror as one of her preemptory challenges.  Had the juror given unequivocal assurances that the judge deemed credible, his ruling could not have been disturbed. When the juror manifested a prior belief that was both material and contestable, it was the judge’s duty to determine whether the juror was capable of suspending that belief for the duration of the trial. TRIAL PROCESS General – Judges  Judicial Impartiality o Financial Interest  Compensation – get money for more people you put away  Claim – Judge had a claim for the same type of recovery. By him ruling on this one claim, then he created precedence that enhanced his own claim.  Competition (more in administrative land) – Carefully restrict the number of competitors on the licensing board b/c those people are going to try and deny licenses to their direct competition. This will make business better for you o 60(b) – Challenges a judges verdict – set aside the verdict based on impartiality  Impartiality might reasonably be questioned  (4) Fiduciary Interests o Look at this from a reasonable person aspect. Would a reasonable person have felt the judge was biased enough to grant an impartial verdict? o Ethical Aspect - §455(a) – Ethical Aspect (ABA model code of judicial conduct) Virtually every state judicial code is based on this o Judges must avoid the press as to not express their thought about the merit of the case o Liljeberg v. HSA Corp.: Respondent acquisition corporation brought suit against petitioner developer seeking a declaration of ownership of a corporation. Upon learning that the district judge was a board member of an entity seeking to purchase from petitioner the same parcel of land in the parties' dispute, respondent filed a motion to disqualify the judge under Judicial Code, 28 U.S.C.S. § 455(a), holding that § 455(a) was violated and the judge should have disqualified himself because even if the judge was not conscious of the circumstances creating the appearance of impropriety, a reasonable person knowing the relevant facts, would have expected that judge to have known of circumstances creating an

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appearance of partiality, and that the relief of vacating the declaratory relief judgment was available under the Fed. R. Civ. P. 60(b) because the judge deprived respondent of a basis for making a timely motion for a new trial and also deprived it of an issue on direct appeal. o Judge worked on a case similar to the type of issue they had now. The judge was caught making a public statement after she refused to offer an immediate prelim injunction saying that this case was more complex than her last one. The lawyers sought to vacate her judgment.  There may be not bias at all. However, discussing the complexity of the case talks about the judges ideas of the merits on the issues. The judge isn’t maintaining the appearance of needed form an unbiased judge. We need to maintain that unbiased opinion at all cost. Judges  Fact Finding  Rule 52 – o A2 – Must make a motion (JML) o Have to give reason for their verdict o Lay out issues, describe the testimony o Fact Finding –  Standard of review – supposed to be upheld unless clearly erroneous o State legal conclusions and apply law to facts o Have to make a pre verdict JML if you’re going to bring a post verdict motion  Rule 50 o Judge can take case from jury in some cases  Directed Verdict [pre-verdict JML (judgment as a matter of law)]  Before Jury Decides  Can be done any time prior to close of the evidence, but typically done at the close of the P’s evidence  JNOV [post verdict JML]  After jury decides  This is aka, ―No reasonable evidence in support of a verdict against who the JML is brought. This ties into the burden of proof  Burden of Proof – when it could have been one way or another, the burden of proof rules say that the person who had the burden of proof loses o Production – focuses on who has the responsibility of coming forward with proof  Requires a party to produce, to find and present evidence to support each element of the prima facie case (or affirmative defense) o Persuasion – (looks at the quality or persuasiveness of the evidence produced)

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Preponderance of evidence (more probable than not) (normal civil std)  Clear & Convincing evidence (used for fraud cases, trying to take away a physicians license, cases that have a severe civil penalty, etc)  Beyond a reasonable doubt (highest level of persuasion) (criminal standard) Preponderance of the Evidence (most common) 51% rule o If there is evidence that leads to two equal inferences then there can’t be a finding in favor of the P o When it could have been one way or another…the burden of proof rules say that the person who had the burden of proof loses Jury Fact Finding o Substantial evidence test – Jury verdict msut be supported by substantial evidence, so that reasonable jurors could have found as they did – even if the reviewing judges think they would have found differently as triers of fact.  Standard of Review Reid v. San Pedro RR – Cow is killed by train. Statute says train must maintain fences around farm land. However there was a gate open. Cow was found near gate. Evidence was insufficient to support the verdict b/c the gate was left open. The railroad is only liable if there was a basis for a claim of negligence. Here they couldn’t meet the causation element. Despite this the jury ruled in favor of the cow owner. o Here we have two equal inferences. Could be one or the other. There is actually more support in favor of the railway. Even if the jury did find the evidence to be equal they could find it to be no more than equal (preponderance) and thus could not have ruled in favor of the railway. Pennsylvania Railroad v. Chamberlain – A brakeman is standing on top of trains and somehow falls off and is crushed and killed by one of the cars. The trains slipped that were above him and slid down the tracks. P contends that the trains caused a collision that knocked him off the train. D contends that there was no evidence to suggest this and he just slipped. Most of the witness’s testimony said there was no collision. However one witness for P said he heard a collision but didn’t see it. o The trial judge believed that all of the testimony, being circumstantial evidence, was so insubstantial and insufficient that it did not justify submission to the jury. In this case, there is no conflict in testimony concerning the facts. The witnesses for the Railroad (D) testified that there was no collision between the nine car string and the decedent’s two car string. The witness for Chamberlain (P) did not testify that there was a collision, rather, he said that he heard a loud crash Judicial Procedure and Fairness o 60(b)  Impartiality might reasonably be questioned  (4) Fiduciary interests

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Compensation – Get money fro more people you put away Claim – Judge had a claim for the same type of recovery. By him ruling on this one claim, then he created precedence that enhanced his own claim  Competition (more in administrative land) – Carefully restrict the number of competitors on the licensing board b/c those people are going to try and deny licenses to their direct competition. This will make business better for you. o Ethical aspect (ABA model code of judicial conduct) Virtually every state judicial code is based on this  Would a reasonable person believe that the judge could be impartial  Liljeberg v. HSA Corp.: Respondent’s acquisition corporation brought suit against developer seeking a declaration of ownership of a corporation. Upon learning that the district judge was a board member of an entity seeking to purchase from petitioner the same parcel of land in the parties' dispute, respondent filed a motion to disqualify the judge under Judicial Code, 28 U.S.C.S. § 455(a). Judge did not attend meeting that dealt with case.  Held; It didn’t matter if the judge was biased or not. From an outside perspective it could look like he was impartial. Even if the judge was not conscious of the circumstances creating the appearance of impropriety, a reasonable person knowing the relevant facts, would have expected that judge to have been aware of the circumstances. o Public Speaking  When judges do speak publicly, we are concerned that they would reveal something that would affect their judgments.  Judges are to speak through judicial acts, rulings, and decisions.  In re Boston Children’s First: worked on a case similar to the type of issue they had now. The judge was caught making a public statement after she refused to offer an immediate prelim injunction saying that this case was more complex than her last one.  Held: There may be not bias at all. However, discussing the complexity of the case talks about the judges ideas of the merits on the issues. The judge isn’t maintaining the appearance of needed form an unbiased judge. We need to maintain that unbias at all cost. o Rule 52—Judges on fact finding and verdicts:  A2—Must give the specifics  Have to give reason for their verdict.  Lay out issues, describe the testimony  Fact Finding—  Standard of Review--supposed to be upheld unless clearly erroneous

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State legal conclusions and apply law to facts.  Have to make a pre verdict JML if you’re gong to bring a post verdict motion. o Rule 50 - Rule 50 governs Judgments as a Matter of Law (JML) and says that a party seeking to attack the jury verdict based on insufficient evidence may seek a JML in which the judge will determine if the jury, using the reasonable jury standard, was correct in its verdict as a matter of law. The party seeking to set aside a jury verdict has several options.  New Trial Motions—Have to raise the first one before the next and so on.  50(a) Pre Verdict JML—It’s a prerequisite for 50(b) o Directed Verdict [pre-verdict JML (judgment as a matter of law)]-- A rational trier of fact couldn’t have reached a verdict for the pl based on the evidence  could fail to make prima facie case.  Before jury decides  Can be done any time prior to close of the evidence, but typically done at the close of the P’s evidence.  Reid v. San Pedro RR: A train ran over a cow. There was a gate open and a hole in the fence. The cow as found dead near the open gate.  Held: Evidence was insufficient to support the verdict because there was a gate left open. The railroad is only liable if there was a basis for a claim of negligence. Utah said that the owners are responsible for keeping the gates close then the owner can’t get damages from the railroad. 50/50 chance of which the cow could have went through. Pl. could not meet their burden of proof. They needed more evidence  50(b) Post verdict JML & Motion For New Trial-- which leads to (appeal sufficient evidence) (great weight of authority)  JNOV [post verdict JML] – After jury decides  This is aka, ―No reasonable evidence in support of a verdict against who the JML is brought. This ties into the burden of proof. o (Jury fact finding – Substantial Evidence Test, standards of review) o May request JML (No Evidence); or,

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Lind: Lind (P), a liquor company sales manager, brought an action against his employer Schenley Industries (D), a liquor company, for breach of oral contract. Lind and his secretary testified as to certain promises made by the company and agents for Schenley (D) [not surprisingly] testified that they did not make such promises. The jury found in favor of Lind and awarded him damages. The trial judge granted Schenley’s motion for judgment notwithstanding the verdict and, in the alternative, a new trial o Verdict loser may request a new trial (weight of evidence)  In doing this the evidence has to be so weak for the P or D, but not weak enough for it not to go to trial  In the way the burden of proof works, you are more likely to see the P’s verdict challenged  These motions are not generally going to be made frivolous  Appeal Sufficient Evidence  Unitherm: Was a patent infringement lawsuit…It was brought by a cooking device patent. They said the patent was invalid. If invalid then you can’t get damages. Supreme Court looked at the provisions of rule 50(b). Competitor failed to request a JML motion after the trial was entered. They brought the pre but not the post. The issue was that precluded them as appealing on the issue of the sufficiency of the evidence in the appellate court o Evidence: Tells us through the concept of relevance what is important  Types of direct evidence:  Videotape  Eyewitness  Type of indirect evidence  Circumstantial – can infer it from the facts but doesn’t expressly tell you  If the evidence is so heavily in favor of the losing party, can give JNOV.  If it could go either way, we motion for new trial.  Pennsylvania Railroad v. Chamberlain: Guy was on a brakeman standing on top of train cars. He somehow fell off and was crushed by trains. Two theories: 1) He accidentally fell; or, 2) there was a collision and that caused him to fall. Many witnesses said that he

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fell on his own without the collision. One witness didn’t see the accident, but heard a collision. (Oggie says this should have brought it to the jury alone.  Held: This judge said that there was no conflict in witness testimony. . However, there is equal support to the opposite inference that a collision occurred between either other strings of cars away from the scene of the accident, or a collision between the cars ridden by the decedent and the seven car string in front of him.  Rule 59—Standard motions for new trials (this is compatible with rule 50) o Authorize new motions—Incorporates the common law  Filed no later than 10 days after judgment o Procedural errors caused a flawed verdict  jury misconduct (ex. Juror trying to do experiment at home, juror visiting scene  judge makes a mistake and allows in evidence he shouldn’t have; or gives an improper jury instruction  lawyer mistakes, prejudicial statement by counsel  litigant mistakes o When a verdict is against the great weight of the evidence, the trial judge can grant a new trial.  here, we think the jury made a mistake, but not such an error that would allow a JNOV. So we send back for a new trial. Evidence is strong for P Evidence is strong for D ------------------------------------------------------------------------------------------------------  JNOV MNT Close Case MNT JNOV  o Substantial Evidence: (court of appeal)—Jury verdict must be supported by substantial evidence, so that reasonable jurors could have found as they did—even if the reviewing juges thinkt hey would have found differently.  Cases taken from jury—When trial judge granted a motion for judgment as a matter of law— appellate court must examine the record to determine whether there is any substantial evidence to support a finding contrary to that of the trial judge.  Lind . Shenley Industries—Suit for breach of an oral contract. P says that there was a contract and presents witnessess. D says there was not and presents witnesses of his won. The jury awarded to the P. The trial judge granted a JNOV.  Held: On appeal, the court overruled the JNOV. There was evidence on both sides. We must give deference to jury verdicts. Judge cannot substitute his own verdict for the jury. However if the jury duty goes beyond deference to credibility then the judge is supposed to grant a new motion for new trial. The appellate court said that he the Judge abused his discretion. External influences v. Internal Influences (Rule 606)

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o 606 deals with the impeachment of jurors—which is carefully limited.  Can only impeach jurors after voir dire on a limited set of external influences.  Reasons: o Don’t want to harass jurors o Don’t want to have endless litigation o Can’t ask about mental process and if you do, you can’t use that against them to get a new trial.  Tanner v. United States, 483 U.S. 107 (1987): Jurors drinking alcohol at lunch and being asleep during afternoon sessions not enough!  Peterson v. Wilkinson: Jury held for P. Four months later, the judged granted a new trial, because the jurors had approached the judge and admitted to considering improper factors in reaching a verdict. Should have allowed lawyers to talk and not just him. Second trial the jury granted for P. o Held: Appeals court overturns the second trial and reinstates the first verdict. On appeal, the court held that the first jury's verdict could not be impeached under Fed. R. Civ. P. 606(b) by juror statements as to what transpired inside the jury room. The jurors' admissions of misconduct did not constitute newly discovered evidence which to justify granting D a new trial. CCP 657—Grounds for new trial o Procedural  Right to new trial  Jury misconduct  Error in law (trial judge excludes substantial part of the P’s evidence) o Substantive  Excessive or inadequate damages  Insufficiency of the evidence  Error in law o Other  Accident or surprise, which ordinary prudent could not have guarded against.  Newly discovered evidence

APPELLATE REVIEW Only 10 Percent of cases are actually reversed  Why appeal? o Delay Day of reckoning o Change in law o Avoid collateral consequences o Settlement

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Basic Rules o Who can appeal  Party to the lawsuit  Need standing  Some JD will allow class members who are not technically party to the lawsuit o To appeal you need an adverse decision or adverse judgment  If you win on one theory, you can’t appeal on another theory. This is b/c they will contradict one another so it is only possible to win on one  However you can appeal if you don’t get the proper remedy o Error + Harm  The judge may have excluded evidence, but there is only a valid basis that not having it caused some harm o Perfect your grounds for appeal by raising your issue in the trial court?  Carefully think through all the possible arguments that you can raise and pick some smaller possibilities. Appellate courts know that mistakes will be made o Need to post a bond  Indemnify the person if the case is dismissed  Applied in case where tenants were challenging convictions o Penalty  Any party who has to pay a judgment tries to use the appeal system to drag on the court date o Clearly erroneous – Judicial verdict must be clearly erroneous to be overturned (less restrictive standard than jury). It is not enough that the appellate court would have decided it differently. Must be left ―on the entire evidence… with the definite and firm conviction that a mistake has been committed.‖ Final Judgment Rule – the time when you get your one chance to appeal o Full Final Judgment – can always appeal this  Timing of appeals 30 days – date of entry of judgment – can’t file a late or early appeal  Exceptions:  Partial Final Judgment – Rule 54(b) – bunch of people joining together which is permitted under joinder rules, but have distinct types of claims. Three P have tort claims…or single party with multiple claims. Court can have discretion to enter judgment to one or more claims. Court can have discretion to enter judgment to one or more claims. If court has this discretion, can appeal these judgments. Need an express indication that they ruled on one or more issues  Collateral Order Doctrine – Federal Case law developed this exception o Allows for immediate appeals from orders that are

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final with respect to certain collateral matters. Must meet certain requirements  Important issue completely separate from the merits  Order must conclusively determine the disputed issue:  Trial court must make final decision  Order effectively un-reviewable on appeal from final judgment (early review should be allowed only if deferring review until entry of final judgment would effectively destroy the appellant’s claimed rights)  E.g….Immunity for gov official cannot be reviewed effectively after a final judgment b/c it is designed to protect D from having to stand trial  Lauro Lines – Cruse-line is sued and has on back of ticket a venue clause to only be sued in Naples. DC in Florida says it should be tried in FL. The cruise line tries to use collateral order doctrine to appeal, arguing that it is un-reviewable on final judgment b/c the venue clause would be useless. Procedure: Certification to the USSC of an interlocutory order by the USDC denying a motion to dismiss. Held: Lauro’s claim that it may be sued only in Naples, is as adequately vindicatable by appeal after the trial, as the claim that the court lacked PJ over the D. No collateral order. Interlocutory Appeal – addressed primarily in sec 1292 – Means there has been no final judgment. o 1291(a)(1) – orders granting preliminary injunction  If there is a prelim injunction we have to weigh the negative impact on the D. If it is wrongfully granted, we look to the bond to help the D out  Liberty Mutual Ins. Co v. Wetzel - Here we had a single claim and single party based on title VII. The whole case turned on the validity of this claim. They said that they had JD under 54(b), which could not apply because there was no relief granted. Did not have a full final judgment because remedies were not addressed. Did not have a partial judgment because there was only the one claim. Such orders are interlocutory in nature, and thus are

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not final judgments within the meaning of 28 U.S.C. 1291. If the District Court had granted injunctive relief, this interlocutory order would have been appealable under 1292(a)(1). o 1292(b)  Certification (This is how the Lauro Lines s.r.l. had their claim of collateral order reviewed by an appeal court) —  Controlling Question of Law  Substantial difference of opinion  Immediate Appeal o Need both appellate and trial court judge to agree on the certification. o §1651—Mandamus  A very narrow exception and is applied when a judge abuses his power
and the appellate court issues a writ requiring the judge to perform an act required by law. An example would be if a trial judge denied a trial by jury when the law necessitated it, so a writ of mandamus would be given before a final judgment was rendered.  Issue when: o Abuse of discretion; o Excess of JD; or, o A refusal to exercise JD

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Standard of Review (how much deference does the appellate court give to the district court o Four Main SOR’s  Questions of Law—No deference (De Novo) – Independent judgment  Cooper Industries, Inc. v. Leatherman Tool Group, Inc.: Appellate court used a clearly erroneous standard to affirm punitive damages award. o Held: Tcourt held that the question of whether a fine was constitutionally excessive called for the application of a constitutional standard to the facts of a particular case, and de novo review of that question was appropriate.  There is clear evidence that we want to make sure with Constitutional issues that the trial court gets it right  Question of fact –deference – Substantial evidence  Deference o Substantial—Jury o Clearly Eroneous--Judge  Mixed Question L/F – Same approach as number 2 –  Deference o Substantial—Jury o Clearly Erroneous--Judge  Question of Discretion – Most deference (most difficult to get

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overturned)  Deference o Abuse of discretion o It is up to the judge to weigh whether showing photos of a horrible accident are necessary or not.  If how the accident occurred is disputed  Need to weigh prejudice against the D because of the graphic nature of the photos versus need to probe into that issue for P. o Analytical Procedure—  Look at the root of the conflict and see whether it is a question of fact, law, or mixed.  When it is a mixed question, it can go either way and courts today have troubling deciding whether or not it is a mixed question or not.  Anderson v. Bessemer City: Woman sues for alleged sexual discrimination Basic facts--- application procedure. Title VII— Can’t discriminate. Judge has to decide on these facts if they are guilty of discrimination—or did they decide that one candidate was just more qualified. Appellate court conducted de novo SOR.  Held: Though reviewing factual findings, a de novo standard of review was wrong. This was a mixed question of whether or not the jury applied the facts appropriately to the legal standard. This should have been judged on a clearly erroneous standard.

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Zach Zach Law Student
About Law Student. Husband. Texan.