Flusche 1 of 27
Civil Procedure – Outline
I. Pleading (p. 2) A. Jurisdiction – first thing at top of page B. Description of Parties – heading, where they live & work, corporate Ds (incorporated state, major offices) C. Operative Facts – tell the story in chronological order – how players interacted D. Legal Theories Related to the Facts E. Relief – ask for damages II. Discovery (p. 5) A. Scope – relevant, not privileged B. Devices – interrogatories, depositions, documents productions, physical examinations, request for admissions C. FRCP sequence 1. R 26.f conference – attorneys meet to plan 2. Mandatory Disclosure (R 26.a) – must take place at conference or within 14 days of conference 3. Discovery Permitted 4. R 16.b Conference – intended to produce scheduling order 5. Scheduling Order – plan to complete discovery D. Controls 1. Prospective – certification, judicial management, protective order 2. Retrospective – sanctions – FRCP, statutory, common law III. Ending the Case Early (p. 8) A. Settlement B. Default – R 55 provides for entry of a default judgment for a complete failure to respond to a pleading C. Dismissal D. Summary Judgment – R 56 – has non-movant met production burden (made prima facie case) IV. Identifying the Trier (p. 10) V. Trial (p. 11) A. JML – R 50 – mere scintilla of evidence insufficient to get to jury B. Verdict – special verdict allowed (R 49) C. JNOV – must have moved for directed verdict at close of evidence – renewing JML motion D. New Trial – trial error OR verdict against weight of evidence VI. Appeal (p. 13) A. Aggrieved party, with preserved objection B. Final judgment rule (some exceptions) VII. Judgment (p. 14) A. Claim Preclusion – final judgment, on the merits, same parties, same claim B. Issue Preclusion – final judgment, same issue, actually litigated, determined, necessary, (parties) C. Undermining – collateral attack, extraordinary relief, independent action VIII. Court Selection (p. 16) A. Personal Jurisdiction – specific = minimum; general = more than minimum B. Subject Matter Jurisdiction – state = general; federal = limited – federal question, diversity, supplemental C. Venue – where, geographically, to file suit (28 USC § 1391) D. Removal – D only, original jurisdiction required, only non local citizens in diversity (28 U.S.C. § 1441) IX. The Erie Problem (p. 22) A. Substance / procedure – substantive = state; procedural = federal B. Outcome determination – if issue is both, state law controls if serves substantive interests & affects outcome C. Balancing test – in close cases, balance governmental interests behind contending rules D. Safe harbor – federal rules control, if constitutional and within enabling act – not overridden by state X. ACA (p. 24)
Flusche 2 of 27
I. Pleading (R 7-16) A. Basics 1. R 7.a – requires complaint & answer a. Complaint – plaintiff says what the problem is b. Answer – defendant responds to the problem c. If D makes a counter-claim, P must reply (answer counter-claim) 2. Two minimal functions a. Invoke law b. Relate facts 3. Rules, generally a. Congress authorized the SC to propose some rules b. Court appointed a special committee and wrote the rules a. If Congress didn‟t act, the rules became law automatically 4. R 8.a – how to start a lawsuit a. A short and plain statement of the grounds of jurisdiction (usually first thing in a complaint) b. Short and plain statement of claim, stating that P is entitled to relief (R 8.a.2 – Conley v. Gibson – minimal functional requirements) i. EXCEPTION – R 9 – requires “special pleading” in two special subject areas: cause of action for fraud, cause of action in mistake c. Demand for judgment for the relief the plaintiff seeks B. History 1. Beginning a. Litigants (or representatives) would appear before judge and orally relate relevant events 2. Common law pleading / equity pleading a. Common law court i. Pleading had three characteristics: (a) Develop a single issue (no joinder of claims or parties) (b) Jury decides (c) Evidence presented orally to judge (d) b. Court of equity i. Supplemented common law courts – handled marriage, family, estates, taxes, etc. ii. Pleadings were extensive – multiple claims and parties allowed iii. No jury – King‟s justice – chancellor exercised authority iv. Took a long time 3. Code pleading a. NY adopted “Field Code of Civil Procedure” in 1848 i. Abolished distinction between common law and equity ii. Complaint shifted from issue-development to a statement of facts that constitutes a cause of action b. Continues in several major states 4. Notice pleading a. FRCP in effect 9/16/1938 b. U.S. District Courts used to follow policy of state in which it was located c. Unified law and equity d. KEY CHANGE in R 8.a.2 – short and simple statement of claim C. Haddle Example 1. Complaint a. Format is standard and prescribed (R 10.a-c – divided into paragraphs with brief allegations) b. Jurisdiction is proper due to 28 U.S.C. § 1331 – R 8.a.1 c. Pleader tries to invoke law d. Prayer for relief (invoking R 8.a.3)
Flusche 3 of 27
2. D claimed P didn‟t satisfy R 8.a.2 3. District Court – P never stated a claim – dismissed c. Rule 12(b)(6) says “Even if everything you allege is true, the law affords you no relief” d. The court assumes that the allegations are true to evaluate these claims a. Due to precedent (Morast v. Lance), the plaintiff has suffered no injury because he was an at-will employee – he had no constitutionally protected interest in further employment b. Walker i. DC decided the case as a R.a.2 / 12.b.6 situation ii. Question is whether requirements of R 8.a.2 were satisfied iii. If you apply the “short and simple statement of claim” standard, the complaint is fine 4. Court of Appeals – affirmed 5. Supreme Court a. Assessment if the complaint is valid is made “on the face of the complaint” b. Since at-will employment wasn‟t mentioned in complaint, it can‟t be brought in later c. All discussion about term of P‟s employment is irrelevant d. Decided the case on a substantive issue – Civil Rights Act doesn‟t matter about at-will employment D. Rule 11 1. History a. 1938 – personal belief i. By signing a pleading, an attorney certified that he/she had read the pleading and “to the best of his knowledge, information, and belief” was accurate b. 1983 – reasonable belief i. Attorney, by signing the complaint, satisfies: law, facts, purpose ii. A reasonable attorney must think there is a basis in law and fact c. 1993 – 2. Application a. Applies whenever presenting paper to court by signing, filing, pleading, or advocating b. If you filed paper consistent with R 11 and something makes rule not hold, can‟t bring it up again 3. Requirements – have a legitimate reason for taking action, do legal research a. Proper purpose – not to delay, harass, or distract b. Legal support – invoke law c. Evidentiary support – at least should have support once discovery takes place d. Sanctions – can be fined, sometimes awarded to D 4. Walker v. Norwest Corp. (8th Cir. 1996) (p. 356) a. Facts – attorney filed complaint, diversity jurisdiction – some of the Ds were citizens of different states b. Ruling – affirmed i. Dismissal under R 12.b.1 & sanctions under R 11 ii. Strawbridge v. Curtis – all Ps and all Ds must be from different states 5. Christian v. Mattel, Inc. (9th Cir. 2003) (p. 360) a. Facts i. Woman alleged that Mattel infringed upon her copyrighted doll in making a new Barbie ii. District judge awarded R 11 motion and sanctioned attorney – $501,565 in attorney‟s fees b. Ruling – remanded i. Attorney didn‟t investigate evidentiary support – look at the doll! ii. Sanction doesn‟t stand – court didn‟t make it clear that sanctions were under its inherent authority E. Rule 15 – amendments 1. If you want to change pleading before answer or response is plead, just do it – as a matter of right 2. After that, have to ask court‟s permission to amend – but it is to be “freely granted” F. The Good Complaint 1. Jurisdiction – first thing at top of page 2. Description of Parties – heading, where they live & work, corporate Ds (incorporated state, major offices)
Flusche 4 of 27
3. Operative Facts – tell the story in chronological order – how players interacted 4. Legal Theories Related to the Facts 5. Relief – ask for damages G. Burdens – usually P has mot of them 1. Pleading a. Low burden – assigned to P b. R 12.b.6 – D raises question whether P has met the test 2. Production a. Must be enough evidence such that reasonable factfinder might find the elements of a case exist b. If P has burden & judge says “not enough evidence”, P loses 3. Persuasion a. Tells the ultimate decision maker what to do in close cases b. Must show with a preponderance of the evidence H. Responses to Complaint (subject to R 11) 1. R 12 motion – quick, cheap a. Lack of jurisdiction (over subject matter OR person) b. Improper venue c. Insufficiency of process d. Insufficiency of service of process e. Failure to state a claim upon which relief can be granted f. Failure to join a party under R 19 2. Answer (a plea) a. Admit – don‟t admit much b. Deny – investigate and decide if client did it c. Non-Positive Denial – don‟t have enough information to respond d. Affirmative Defenses – if D wants to use defense, must state in complaint e. Concluding I. Gomez v. Toledo (US 1980) (p. 372) 1. Facts a. Man sued employer, contending that discharge violated his right to Due Process b. Employer moved to dismiss for failure to state a cause of action (R 12.b.6) c. District Court dismissed – plaintiff, as part of his complaint, was required to prove that D acted in bad faith 2. Ruling – reversed – P doesn‟t have to allege bad faith a. Only two terms required i. Plaintiff must allege some person has deprived him of a federal right ii. Must allege that the person acted under color of state or territorial law b. Qualified immunity is a defense, so the burden of pleading it rests with the defendant J. Answer 1. Denials (R 8.b) a. D must respond to all allegations in P‟s complaint b. General denial – permitted, but R urges D to deny specifically c. Rule makers trying to use R 8.b to narrow issues in the case d. R 8.d – averments in pleading are admitted when not denied e. Zilenski v. PPI (E.D. Pa. 1956) (p. 382) i. Facts (a) P filed a complaint for personal injuries resulting from two fork-lifts colliding (b) D denied ¶ 5 (stating forklift was negligently and carelessly managed and that it hit P) (c) Johnson testified that he was employee of D – he was really an employee of Carload (d) D admits that it owned the fork lift and pier, leasing them to Carload ii. Ruling
Flusche 5 of 27
(a) Jury will be told that the fork lift was owned by PPI, and Johnson was their employee (b) Based on (1) R 8.b – D must make clear what part of averment he is denying (i) D owned the forklift – part of ¶ 5 was true (ii) Ineffective denial = no denial at all (2) Principles of equity – want to make sure P gets relief 2. Affirmative Defenses – something new, not in P‟s complaint a. R 8.c – in pleading to preceding pleading, party shall set forth affirmative defenses b. Roots in common law i. Known as pleas of confession and avoidance ii. You confessed the accuracy of everything in P‟s complaint iii. But then you say I am not liable because of something outside P‟s complaint c. Today, no confession, but still have avoidance – even if P can meet burdens, D is not liable d. Pleading burden for affirmative defense = D e. Failure to plead an affirmative defense – it‟s lost f. Layman v. Southwestern Bell (Mo. Ct. App. 1977) (p. 387) i. Facts (a) Movant (Bell) wants to introduce evidence of easement – proposes to submit document (b) Non-movant objects – easement must be in pleading, since it is new evidence (avoidance) ii. Ruling (a) It is clear that D‟s right of easement would have to be proven by evidence (b) P‟s objection to the introduction of easement evidence should‟ve been sustained 3. Reply a. R 7.a – third pleading = reply to a counter-claim b. R 13.a,b – counter-claim i. D, as part of answer, can assert counter-claim ii. Counter-claim is claim that: (a) Arises out of same transaction/event (13.a – compulsory) (b) Isn‟t related to the current case (13.b – optional) c. P must reply to the counter-claim II. Discovery A. Information sources 1. Admissions 2. Investigation – independent attorney research 3. Required disclosures – R 26.a.1 – parties must provide each other with certain materials without asking 4. Discovery – coercive B. Scope 1. Two requirements: a. Relevant i. R 26.b.1 – any matter that is relevant to a claim or defense of any party ii. Limits what can be put on at trial – must make more or less probable the existence of a material issue b. Not Privileged i. Information from certain sources is privileged ii. In District Court, privilege depends upon the state in which the court resides iii. Privilege is waived if you voluntarily disclose information 2. Davis v. Precoat Metals (p. 409) a. Facts i. Group of people sued for discrimination under CR Act of „64 ii. Disparate impact theory: discrimination against an entire group of people, brought as class action iii. P‟s sought to discover complains against D by employees at same plant
Flusche 6 of 27
b. Ruling i. Information is relevant – character evidence – might show pretext for the actions 3. Steffan v. Cheney (p. 411) a. Facts i. Midshipman at Naval Academy – resigned after being recommended for discharge ii. M had made a statement during his career that he was a homosexual iii. In DC, gave a deposition and refused to answer question about homosexual conduct b. Ruling i. Question about homosexual conduct is NOT relevant ii. Man was discharged based on his statement about being homosexual C. Devices 1. Interrogatories a. Cheap, but limited usefulness b. Written questions directed to a party – must answer them (under oath) OR object c. Can object to an entire set (claiming they are overly burdensome) d. R 26.c – party can ask for protective order instead of responding to discovery device e. Target what the client (1) knows and (2) could find out through reasonable inquiry 2. Depositions a. Most productive, but most expensive – lawyers can follow up questions b. Recorded examination of a live witness under oath by oral or written questions before a qualified oath administrator c. After deposer has finished, everyone who is represented can cross examine d. Can be used at trial (because of cross examination opportunity) i. Party – used for any purpose ii. Non-party – used for limited purposes, but also to impeach a witness e. If a party doesn‟t show up, the case could be dismissed f. Non-party has to be subpoenaed 3. Documents Production a. Incredibly costly b. R 34.a – device to ask a party to turn over documents for inspection c. Non-party can be subpoenaed to produce documents d. Produced documents are available for use at trial, subject to rules of evidence e. Two issues: i. Is the information discoverable? ii. Is the produced information admissible as evidence? 4. Physical Examinations a. R 35 – when physical or mental condition of a person in controversy, court may order examination b. Only general device that requires advance judicial permission c. Since this examination is not part of a treatment, the results are normally admissible d. Client can be ordered by the court to go to some doctor and undergo a full range of tests OR can have to see a psychiatrist 5. Requests for Admission a. Not, strictly speaking, discovery device b. Other party‟s attorney almost always objects D. Sequence 1. Authority a. FRCP b. Local Rules – each US District Court has its own rules – must only supplement the federal rules c. Standing Orders – clerk mails out standing orders to attorneys, along with forms to use 2. FRCP sequence a. R 26.f Conference
Flusche 7 of 27
i. Parties (attorneys) meet to plan for discovery ii. R 26.d – no party may seek discovery before the parties have conferred b. Mandatory Disclosure (R 26.a) – must take place at conference or within 14 days of conference c. Discovery Permitted – any time after 26.f conference d. R 16.b Conference i. R 16 sets up plan for “pretrial conference” for “scheduling and planning” ii. Conducted by US District Judge or US magistrate judge iii. From this conference emerges a scheduling order e. Scheduling Order i. R 16.b tells what to put in the order ii. Includes a plan to complete discovery 3. Attorney driven – judges don‟t plan or want to have a great deal of involvement E. Privilege and Trial Preparation Material – Hickman v. Taylor (p. 438) 1. Facts a. Tugboat sank while helping tow a railroad car across river – 5 of 9 crew members drowned b. Tug owners employed a law firm in anticipation of lawsuits – interview survivors and other persons c. Suit for one of deceased crew members – asked for copies of statements taken by law firm d. Law firm refused, but DC ordered statements produced 2. Ruling a. What petitioner seeks has already been revealed to him through interrogatories or is readily available through direct questions to the witnesses b. SC created a qualified privilege for attorney work product c. If there is a showing of real need for the material by the opposition, material will be handed over d. Suggested, but didn‟t decide, that the thoughts or mental impressions of attorneys might be absolutely immune from discovery 3. Rules amended after this case a. R 26.b.3 – created a qualified privilege for documents and tangible things prepared in preparation for trial by or for another party or his representative F. Experts 1. Adversary model –minority view (in terms of Western judicial systems) – tacit disregard for truth-finding 2. Scope a. R 26.b b. R 26.b.3 – documents and tangible evidence that are relevant and not privileged are nevertheless protected if they have been prepared in anticipation of litigation by the adversary attorney, consultant, insurer, etc 3. Types of experts a. Consulted, retained, testifying – routine discovery – R 26.a.2 b. Consulted, retained, not testifying – protected by “qualified privilege” c. Consulted, not retained – mentioned in committee note – not available for any discovery d. Actors – general discovery rules 4. Facts in hands of experts not immune G. Controls 1. Prospective a. Certification i. Fairly new ii. R 11 explicitly excludes discovery iii. R 26.g – applies R 11 standards (virtually) to discovery b. Judicial Management i. Hope of the rule makers was to engage judges ii. Series of conferences – including R 16.b opportunity to enter a scheduling order iii. Most of the conferences are done by magistrate judge – parties don‟t care about him
Flusche 8 of 27
c. Protective Order i. R 26.c – party can predict misbehavior and ask court for an order to prevent discovery ii. Most of the time, the reason is that request is over-burdensome, invades privacy, etc. 2. Retrospective – Sanctions a. FRCP i. R 37 – list of bad things that can happen: (a) For failure to respond to court order during discovery (b) Or just doing certain behaviors ii. Sanctions – monetary penalties, determinations that certain matters be taken as proven, limitations on evidence, entry of unfavorable judgment iii. Problem – judges reluctant to apply these b. Statutory i. 28 U.S.C. § 1927 – any attorney who multiplies the proceedings unreasonably may be required to pay the excess attorney‟s fees for the other side c. Common Law i. Judge has authority to control his courtroom – discovery is an extension of courtroom ii. Attorneys can be disciplined for unacceptable participation III. Ending the Case Early A. Settlement 1. Formula a. PAV – Probable Average Verdict i. “What‟s my exposure?” – if everything goes for P, what am I looking at? b. PPV – Probability of Plaintiff Verdict c. PC – Plaintiff Cost to Verdict d. DC – Defendant Cost to Verdict e. FSV – Fair Settlement Value f. (PAV x PPV) – PC + DC = FSV 2. Negotiations a. Must have this basic set of ideas in mind b. Try to refine your knowledge about FSV by trying to find out what the other party thinks 3. As a general rule, judge doesn‟t have to approve settlement agreement, except for class actions 4. Settlement = contract a. Enforced by the rules of contract law b. Consideration is the money, or the behavior, and the agreement to drop the suit c. Voiding the settlement: fraud, etc OR mistake (if both parties are mistaken about the terms) 5. Parties can incorporate elements into a judgment to be signed by the court, dismissing the suit a. This heads off future litigation regarding the contract terms B. Default 1. R 55 provides for entry of a default judgment for a complete failure to respond to a pleading 2. Steps: a. Entry of default b. Party filing motion alerts court when the time expires c. Judge enters judgment on the merits C. Dismissal 1. Parallel to Ps to keep them motivated and involved in the suit 2. “dismissal with prejudice” – P cannot bring a similar suit at any time D. Summary Judgment (R 56) 1. Early Call Test #2 (production burden / making prima facie case) a. Both parties have certain production burdens b. Early test of the ability of the parties to meet their production burden at trial c. Threshold burden
Flusche 9 of 27
i. SC (extrapolation) decided that the party making the motion has a threshold responsibility ii. Burden at summary judgment = burden at trial 2. Process a. Two steps i. Moving party, simply by moving, has a burden (a) Balance of availability of information (b) Prevent the case from going to trial when there is no dispute about the facts ii. Judge can determine issues of law and enter the result b. When i. D can file at any time ii. P can file 20 days after filing the complaint c. Often D‟s weapon – usually done after discovery d. Non-movant may respond in several ways: i. May present an affidavit under R 56.f – cannot respond – too early – haven‟t finished investigation ii. Do nothing – argue movant hasn‟t met threshold burden iii. Reply in kind 3. Adickes v. S.H. Kress & Co. (US 1970) (p. 515) a. Facts i. Adickes and her students sat at lunch counter – waitress refused to serve them ii. When Adickes left, she was arrested for disturbing the peace iii. Adickes sued Kress – was arrested wrongly, detained wrongly, and police conspired with Kress iv. Kress moved for summary judgment – no issue of material fact (TC granted) b. Ruling i. Kress must foreclose the existence of any material issue of fact – didn‟t do it ii. To make out conspiracy, must show evidence of conversation between employees and police iii. For foreclosure, must show that no employee talked to any police officer iv. Adickes had no evidence – never would‟ve met production burden v. Almost shut down use of R 56 – whoever had production burden, had to foreclose the possibility 4. Celotex Corp. v. Catrett (US 1986) (p. 516) a. Facts i. Motion for summary judgment supported only by a memorandum ii. Celotex argues that Catrett wouldn‟t be able to prove her husband was exposed to Celotex‟s product (were a dozen manufacturers of asbestos) b. Ruling – reversed i. Of course you have a threshold responsibility – find nothing in R 56 requires movant to negate other‟s claim ii. Bought earlier notion of filing early summary judgment just to see what other side is going to do 5. Bias v. Advantage International, Inc. (p. 521) a. Facts i. Bias died of cocaine intoxication ii. Estate sued Advantage and Fentress (his agent and agent‟s company) for the injuries iii. Estate alleges that they directed Fentress to obtain life insurance on Bias iv. D‟s argument comes very close to being affirmative defense – but judge assigns burden to P v. District Court awarded summary judgment to D b. Ruling – affirmed – P can‟t meet production burden i. Initial burden for D (a) Foreclose drug use (under Adickes) (1) Presents testimony from other players who saw Bias use drugs (b) Foreclose availability of insurance (1) Would have to show that every insurance company would not have insured Bias
Flusche 10 of 27
ii. P lost because he didn‟t meet the production burden – (didn‟t use drugs & did have insurance available) iii. Forecast of evidence showed P couldn‟t pass production burden c. Affirmative defense (made up) switches the burdens: i. D – impossibility – drug use & insurance not available ii. P – damages – face value of policy d. Now, if D moved for summary judgment, it would be more difficult because burden is shifted e. Gomez v. Toledo – who has the burden of pleading with respect to an affirmative defense? – D f. Celotex standard doesn‟t work here i. D would have to frame some sort of argument that P couldn‟t prove that defense couldn‟t prove g. Adickes-like standard i. D must foreclose that Bias was a drug user & no insurance available ii. D must show there is only one operable set of facts h. Non-movant would have to argue that there was NOT one set of operable facts – jury question i. Except for affirmative defenses, P usually bears burden at summary judgment IV. Identifying the Trier A. Which judge? 1. Cases are randomly assigned to U.S. District Court judges 2. Recusal: possible to get another judge? a. 28 U.S.C. § 455(a) – judge must recuse herself if “impartiality might reasonably be questioned” b. In re Boston‟s Children First i. Attorney for plaintiffs says, “If you get strip-searched in jail you get more rights than a child who is the wrong color” c. Judge compares two cases in the newspaper d. P thinks judge could recuse herself because she commented on merits of a pending case B. Right to a civil jury trial 1. 7th A controls federal courts a. Only Bill of Rights amendment that doesn‟t apply to states b. Language i. “In suits at common law” – would there have been a jury in England in 1791? ii. “preserves” the right – no independent U.S. right iii. Limited to matters exceeding $20 c. Unification of law and equity creates some unusual problems i. What do you do when P brings an equitable claim and D counter-claims “at law”? (a) Beacon Theaters v. Westover – legal claim must be tried first ii. What if P brings a suit with both types of claims & court decides equitable claim is more important? (a) Dairy Queen v. Wood – precedence goes to legal claim d. Where would the case have gone in 1791? i. Remedy (a) Law courts = money (damages) – sheriff would seize property, sell it, and pay the winner (1) Law courts much more sensitive to community (2) Jury started out as local snitches (b) Equity = orders to do something (1) Comes along when people started petitioning crown for justice (2) No jury – royalty called it equitable to make it more appealing 2. R 38 – have to ask for jury trial at first opportunity, or you lose it 3. Congress creates new causes of action occasionally – SC decides what juries can & can‟t decide 4. Real question – whether or not you want a jury C. Pretrial conference 1. Established sequence of meetings a. First, just attorneys
Flusche 11 of 27
b. With judge or magistrate c. Pretrial conference – R 16 i. At common law, judge only decided things if asked to 2. Final conference intended to have judge approve pretrial order – roadmap for the trial 3. Attorney-managed proceeding – judge sits down to go over points of conflict 4. Common point of conflict – what the dispute is about – loose pleading process doesn‟t make issues clear 5. Judge is permitted by pretrial rule to talk about settlement D. Jury 1. All U.S. District Courts must have written plan for random selection of jurors 2. First phase – large group of people summoned to courthouse to be jurors – largely from voter lists 3. Second phase a. Clerk randomly chooses 6 people b. Judge does questioning after consulting with attorneys c. Challenge for cause – excuse juror based on proposition that not likely able to fairly decide the case d. Peremptory challenge – each party has 3 opportunities to remove juror 4. 6 people isn‟t as good as 12 – not as representative, increases unpredictability, makes it harder to settle V. Trial A. Process 1. Opening statements 2. P‟s evidence – most production burden falls here 3. Motions for JML (directed verdict) – Test 2 (production burden) 4. D‟s evidence 5. P‟s rebuttal evidence (if granted by judge) 6. Motions for JML 7. Closing arguments 8. Instructions – standard instructions, along with proposed instructions from lawyers 9. Deliberations 10. Verdict – Test 3 (persuasion burden) B. JML (R 50) 1. Boeing Co. v. Shipman (5th Cir. 1969) (p. 598) – mere scintilla of evidence insufficient to get to jury C. Verdict 1. R 49 – court may require a jury to return special verdict – written finding on each issue 2. Problem – completely out of step with common law jury D. Post trial motions 1. JNOV – judgment not withstanding the verdict (R 50.b) a. Must have moved for R 50.a motion at close of all evidence i. SC decided only way to satisfy jury trial was to consider this motion as a renewal for directed verdict ii. Even if directed verdict denied, it is preserved b. Judge can enter judgment for the opposite party c. What about 7th Am? – first time SC said no; second time allowed since 50.a motion had been made d. Why would judge deny directed verdict motion, then grant JNOV motion? i. Judge sends it to the jury to see if it comes out the way he thinks it should e. If granted, this means we should‟ve granted directed verdict f. Always ask 2x for directed verdict – after party with burden of production finishes, at close of evidence g. Highly reviewable 2. New Trial (R 59) a. Trial error i. If judge, after jury comes back, realizes he made a mistake that harmed someone ii. Still get a jury trial b. Verdict against the weight of the evidence i. Applies Test 3 – essence of common law jury
Flusche 12 of 27
ii. Means that the jury really swam upstream c. Virtually un-reviewable 3. Often made and decided together – CoA can render final outcome without remanding to lower 4. This is a controlling device a. 7th Am – right to bring a jury in to participate b. If you don‟t, at first chance, ask for a jury, you lose the ability 5. Pennsylvania Railroad v. Chamberlain (US 1933) (p. 594) a. Facts i. Railroad worker was working as brakeman in switching yard – found on tracks, having been run over ii. 2 theories – fell off OR another string hit the cars he was on iii. TC entered directed verdict iv. CoA reversed b. Ruling – reversed – JML right i. Evidence – P – testimony of person who was 900 ft away – hear a bang, then saw string together ii. P bears burden of production – JML was appropriate 6. Lind v. Schenley Industries (3d Cir. 1960) (p. 604) a. Facts i. Sales manager for liquor company claims he was promised share in profits ii. Jury awarded damages to P iii. TC granted JNOV and new trial – jury‟s verdict was contrary to evidence, contrary to law b. Ruling – reversed i. Abuse of judge‟s discretion ii. Case of he-said/she-said – issue was about credibility c. Three separate issues i. What standard TC should apply in setting aside verdicts as being against weight of evidence (a) Must be a seriously erroneous result ii. What standard appellate court should apply in reversing judge‟s decision (a) Only reverse for “an abuse of discretion” iii. How do you connect common law and equity? (a) At common law, no appeal (b) Equity was totally open to appeal (c) JNOV wasn‟t known at all d. Why did TC grant BOTH motions (ok under R 50.c)? i. Appellate court has to leave TC alone until final judgment rendered ii. If TC denies both motions made by loser – it‟s over iii. If TC denies JNOV, but grants new trial, not over 7. Peterson v. Wilson (5th Cir. 1998) (p. 611) a. Facts i. P filed suit, claiming his property interest in employment at TSU was destroyed when it was “arbitrarily and capriciously terminated” ii. Jury found for P, awarding him $152k in lost pay and benefits + $35k in mental anguish iii. Four months later the district court ordered a new trial – jury commented post-verdict that they disregarded instructions b. Ruling – remanded; for P i. The court was relying on information obtained from the jurors post-verdict, and any information obtained was from their internal jury deliberations ii. F.R.E 606(b) – receiving testimony from jurors post-verdict for the purpose of ascertaining whether they understood the instructions is prohibited E. Model is unusual 1. Would you regard highly a scientist who knew his answer was wrong, but didn‟t fix it? 2. Three solutions
Flusche 13 of 27
a. Economical (Posner) – encourage maximum production / well-being of all external people b. Psychological – which process will provide the greatest satisfaction c. Political – maximize external political goals VI. Appeal A. Background 1. Equity courts – files shuffled up and down hierarchy – things weren‟t settled 2. Common law – appeal wasn‟t present – came along later 3. No constitutional right to an appeal B. Who 1. Aggrieved party a. Defined – party who did not receive the full relief requested b. Supposed to take a second look at decisions which hurt the appellant 2. Preserved objection a. Necessary to give trial judge full and fair opportunity to hear the complaint and get decision right b. You can‟t appeal unless you tell the trial judge that you have a problem with what is being done c. Sometimes the judge will automatically deny the objection d. Sometimes attorneys ask for a “continuing objection” C. When 1. Final judgment rule a. 28 U.S.C. § 1291 – permits, as matter of right, appeals from District Court “final decisions” b. SC – final decision “ends the litigation on the merits & leaves nothing for court to do but execute the judgment” 2. Exceptions – proper use can be practically decisive in the case a. R 54.b – permits TJ to enter judgment on fewer than all of the claims, if “no just cause for delay” b. Injunctions i. 28 U.S.C. § 1292.a.1 – authorizes appeal of interlocutory orders that grant, modify, refuse, or otherwise affect an injunction ii. Extends to preliminary injunctions, final injunctions, but it‟s debatable for temp. restraining orders iii. Fast track to Court of Appeals c. Certified questions i. 28 U.S.C. § 1292.b – permits a discretionary interlocutory appeal ii. Requirements (a) TC must have issued an order from which appeal was taken (b) TC must determine that there can be difference of opinion (c) TC must determine that lawsuit might terminate, depending upon decision (d) CoA must agree, in its discretion, to allow appeal iii. Kind of consolation prize from TC d. Mandamus i. Rarely granted ii. Old common law writ iii. Independent civil action that is brought in CoA against the TJ iv. Request that a superior public official order an inferior official to do his clear legal duty e. Collateral orders i. Only common law exception ii. Three strictly applied requirements, order must: (a) Finally and conclusively determine something (b) Resolve an important issue completely collateral to the merits (c) Be practically un-reviewable on appeal iii. Coin v. Beneficial Industrial Loan Corp. (a) Stockholder‟s derivative suit – single stockholder may sue if directors mismanage corporation (b) In order to discourage strike suits, NJ required any stockholder to post a bond
Flusche 14 of 27
(c) TC – ruled that bond requirement didn‟t apply (d) Collateral – decision whether or not to apply NJ law (e) Important – had decision gone the other way, lawsuit might not have been pursued D. How 1. De novo – if TC decided question of law, appellate court can do whatever it wants 2. Findings of fact by trial judge – only reversed if clearly erroneous 3. Jury – can decide if TJ ruled properly on JNOV or JML 4. Abuse of discretion – decision to grant or deny new trial, CoA defers 99% to decision of TC E. Time sensitive – there are jurisdictional time limits to exiting the TC and entering CoA VII. Judgments A. Claim Preclusion (bar and merger, res judicata) 1. Final judgment (at least in TC) 2. On the merits a. Case must go far enough such that disappointed litigant had constitutional opportunity to participate b. Dismissal on R 12.b.6 grounds = adjudication on the merits c. After summary judgment – probably 3. Same parties (or parties who were in privity to the parties – successors with interest in real property) 4. Same claim (or claims that arose out of the same transaction or event – might be “convenience” stance) 5. Examples a. Frier v. City of Vandalia (p. 658) i. Facts (a) C parked 4 cars in alley, police eventually towed, C sued & lost (b) C sued in federal court, claiming City deprived of Due Process ii. Ruling – applied claim preclusion (a) Federal court had to ask what Illinois would do (1) A judgment from any U.S. court is binding on other courts, for preclusion (2) 28 U.S.C. § 1738 – federal judges must give same recognition to state court judgments in federal court that they would receive in the same state (b) Two judges thought scope of preclusion was transactional; one thought it was narrower (c) C had several final judgments on the merits between the same parties (d) Did the federal civil rights claim involve the same action as the state replevin claim? – yes (e) Could C have brought the civil rights claim in state court? – yes, could have joined b. Searle Brothers v. Searle (p. 673) i. Facts (a) First suit – divorce action (1) Dispute about Slaugh House – titled in husband‟s name, claimed boys owned half (2) Boys testified for the dad as witnesses (3) Court – wife got whole house (b) Boys sued mom, asking for their half of house – issue: were boys parties to first suit? ii. Ruling – claim was not precluded – boys weren‟t in privity iii. Could done a quiet title action – court looks into property and declares state of title B. Issue Preclusion 1. Final Judgment – finality for appeal 2. Same Issue – must have at least same burden of proof 3. Actually Litigated a. Illinois Central Gulf RR v. Parks (p. 688) i. Facts (a) B and J injured & sued together (1) B sought compensation for injuries – recovered $30k (2) J sought damages for loss of B‟s services and consortium – lost (b) J then sued for personal injury
Flusche 15 of 27
ii. Ruling – claim not precluded (a) Court – separate cause of action (b) In federal court, would be claim precluded iii. Issue preclusion – it was the same event, but not same issue 4. Determined – lawsuit must have decided the issue 5. Necessary – litigation must have played active role in case 6. (Parties) a. Used to, in order to bind a party with issue preclusion, must have been party in first lawsuit b. Now, person doesn‟t need to be a party to first suit c. SC confirms in Parklane (p. 695) i. SEC sued & got judgment that Parklane had made misleading statements i. Three requirements: (a) Whether or not the party claiming the benefit deliberately bypassed opportunity to participate originally (b) Whether the party in the original lawsuit could or should have foreseen the action (a) Quality of the cases that move forward early is crucial ii. Private people can‟t be Ps in case with the SEC d. Most prominent exceptions for offensive collateral estoppel – did you hang back purposely? C. Random Points 1. Preclusion applies to both P and D 2. Preclusion forecloses non-litigated claims by the P and D a. R 13 – compulsory counter-claim – scope of compulsion by rule on D is transactional b. In federal court, P must bring all claims at once, and D must put forth all defenses c. All defenses not brought forward are precluded 3. Stare decisis – court decided idea in another case – even weaker D. Recognition of Judgments 1. In general, judgments are enforceable in any U.S. court 2. State to State – full faith and credit clause – commence action to enforce judgment – 28 U.S.C. § 1738 3. State to Federal – must recognize state court judgments to the extent that state courts recognize them 4. Federal to Federal – not a constitutional obligation – common law 5. Federal to State – may be constitutional in light of supremacy clause E. Undermining Judgments (extremely rare, except in case of default judgment) 1. Collateral Attack a. An attack on a judgment in some court other than the court that rendered the judgment b. Two grounds i. Lack of jurisdiction – over person OR over subject matter ii. Fraud 2. Extraordinary Relief a. Effort to avoid the effect of a judgment by returning to the court which entered the judgment & asking the court for equitable reasons to relieve a party (usually D) from the effect of the judgment in whole or in part b. R 60.b i. R 60.a – permits a motion to correct clerical mistakes in the judgment ii. Motions on first 3 grounds must be in 1 year; motions on other 3 must be within reasonable time iii. Six grounds: (a) Mistake, inadvertence, surprise (b) Newly discovered evidence which, by due diligence couldn‟t have been discovered (c) Fraud, misrepresentation, or other misconduct (d) Judgment is void (e) Judgment has been satisfied, released, or discharged (f) Any other reason justifying relief from the operation of a judgment
Flusche 16 of 27
3. Independent Action a. Typically filed in the same court b. Free standing, equity based lawsuit may be brought seeking relief from a judgment c. Only benefit – not apparently time-limited d. Exception – defaults – can open a default under R 60.b motion 4. Examples a. Durfee v. Duke (US 1963) (p. 716) i. Facts (a) First action brought in Nebraska court to quiet title to land allegedly in Nebraska (1) Subject matter jurisdiction depended on location of land in Nebraska (2) Court system, through SC of NB determined that the property was located in NB (b) Second action brought by former D in Missouri court alleging that the property was in Missouri (1) Case was removed to federal court (2) Collateral attack – challenging the propriety of the prior judgment (3) Claimed the prior judgment was void, since NB court lacked jurisdiction ii. Ruling – SC reversed – collateral attack was improper (a) SC applied issue preclusion to this case (jurisdiction of Nebraska court) (b) If you don‟t go to Nebraska, you can start your own lawsuit in Missouri and challenge the subject matter jurisdiction of the court in Nebraska (c) Three possible responses – personal jurisdiction (1) You can go and participate, raising personal jurisdiction issue (2) If you go and fail to argue personal jurisdiction, you waive it (3) You can stay home and prepare to collaterally attack the judgment on the grounds that the court didn‟t have personal jurisdiction (d) Three options – subject matter jurisdiction (1) Appear and litigate – if you lose, you are precluded everywhere else in US (2) Appear and don‟t mention subject matter jurisdiction – waived (3) Stay home when you think you have a subject matter objection to the jurisdiction of the rendering court – raise in collateral attack in another state b. United States v. Beggerly (US 1998) (p. 723) i. Facts (a) Federal govt. brought quiet title action in Mississippi (b) Issue turned on whether the land was deeded to a private party before 1803 (c) B asked govt. to search records for private ownership evidence – found nothing (d) Judgment for govt. (e) B kept looking, hired an expert, 12 years later found a document proving ownership (f) Used independent action ii. Ruling – no relief (a) Must have a judgment which is grossly unfair (b) Fraud is sufficient, but this wasn‟t fraud (c) Records were always in the archives and available for anyone to find VIII. Court Selection A. Personal Jurisdiction 1. Authority to summon an individual to participate 2. Always ask two questions: a. Whether sovereign wishes to have this type of person as litigant b. How state Constitution applies 3. Vocabulary a. “in personum jurisdiction” i. An old power of authority to summon the D ii. General, in the sense that it was available to any person with an acceptable cause of action
Flusche 17 of 27
b. “in rem jurisdiction” – exclusively related to ownership of real property c. “quasi in rem jurisdiction” i. Focal point – presence of some kind of property ii. Determine dispute between particular people over the property 4. Traditional a. Bases (with respect to 14 th A) i. In Personam – if personal service carried out properly within state, you‟re D – “tagging rule” (a) Burnham v. Superior Court (US 1990) (p. 132) – plurality (b) Balance – judges who have decided – being present & being served while present is enough for specific jurisdiction with respect to that visit & general jurisdiction ii. In Rem – if property located within state, state may pass statute saying “we have jurisdiction over this” iii. Quasi In Rem – if property in state, state can adjudicate controversy, sell property, and pay P iv. Domicile – state can compel persons domiciled within its limits v. Status – state can always determine status of citizens (married or not married) vi. Consent – one may consent anywhere b. Pennoyer v. Neff (US 1877) (p. 61) i. Facts (a) Neff didn‟t pay Mitchell‟s legal fee; Mitchell couldn‟t find Neff in Oregon to serve him (b) Oregon had a statute that permitted public publication of notice, if non-resident land owner can‟t be found (c) After judgment entered in favor of Mitchell, Neff bought property in Oregon (d) Mitchell had sheriff attach Neff‟s land, sell it to Pennoyer, and give Mitchell the money (e) Neff claimed Oregon court didn‟t have jurisdiction (f) TC read the Oregon statute and said Mitchell didn‟t properly follow the Oregon statute for summoning non-residents – judgment void ii. Ruling – Oregon law was complied with 5. Modern a. Bases i. Specific Jurisdiction (a) Minimum contacts (b) Consent ii. General Jurisdiction (a) More than minimum contacts (b) Consent b. International Shoe Co. v. Washington (US 1945) (p. 77) i. Facts (a) Corporation from Delaware, with principal place of business in Missouri – sold through agents (b) Washington taxed the activities; Shoe Co. didn‟t pay; Washington sued (c) Service of process attempted on sales agent & mailing the service and complaint to St. Louis (d) Corp. argued they weren‟t present – no contracts, orders, money, etc. ii. Ruling – corp. subject to suit (a) St. Louis service was sufficient (b) Distinguished specific & general jurisdiction (c) D must have “certain minimum contacts” – “such that the maintenance of the suit does not offend „traditional notions of fair play and substantial justice‟” c. McGee v. International Life Insurance Co. (p. 84) i. Facts (a) Citizen and resident of CA had life insurance policy; company sold (b) Man sends payment to new company in TX (c) Specific jurisdiction – only contact with CA was the letter which arrived, soliciting renewal
Flusche 18 of 27
ii. Ruling (a) Substantial connection with CA – contract delivered to there, premiums mailed from there, and insured lived there (b) CA has a manifest interest in providing a way for its residents to collect their insurance claims d. Hanson v. Denckla (US 1958) (p. 85) i. Facts – Donner was DL citizen who established a trust with a Delaware trust company, moved to FL ii. Ruling – FL can‟t summon the trust company (specific jurisdiction not met) e. Reconciling – in McGee there was a purposeful contact with state, but Donner moved to FL on her own f. What happened to traditional bases? i. Consent – still in use ii. Domicile – clearly general jurisdiction (corp. – st of incorp. and principle place of business) iii. Quasi in rem – criticized a lot under Pennoyer precedent g. Shaffer v. Heitner (US 1977) (p. 87) i. Facts (a) Shareholder‟s diversity suit – commenced in DL state court (b) Greyhound: Delaware corp., principal offices in Arizona, alleged mismanagement occurred in Oregon (c) Delaware law – with respect to any stock owned by a DE corp., the location of the stock is DE (d) Sequestration – Heitner petitioned court to take legal control over director‟s stock (e) Issue: could DE assert personal jurisdiction over the directors? ii. Ruling – owning stock in Greyhound not sufficient contacts – use Shoe standard h. Look to R 4.k (statutory equivalent to U.S. Congress summoning particular D i. 1.a – summons to bring into federal court person who is subject to general jurisdiction in state court ii. Sometimes Congress abandons this limit iii. Note: 14th A geared more to states, 5 th A more to federal govt. i. World-Wide Volkswagen Corp. v. Woodson (US 1980) (p. 98) i. Issue: Can OK court exercise personal jurisdiction over foreign car dealer in products-liability action, when D‟s only connection is that a car sold in NY to NY residents was in a car crash in OK? ii. Facts (a) Respondents bought an Audi in NY, moved to AZ (b) Sued in District Court in OK, claiming gas tank design was defective (c) WWV is wholly NY – does business in NJ and CT also (d) SC of OK - petitioners could foresee the car might end up in OK iii. Ruling – reversed (a) Petitioners have no contacts with OK, except the single car that entered the state (b) Foreseeability is not sufficient for personal jurisdiction under Due Process iv. Dissent (a) Given modern state of world, the sale of an automobile does purposefully inject the vehicle into the stream of interstate commerce so that can travel to distant states j. Burger King Corp. v. Rudzewicz (US 1985) (p. 114) i. Facts (a) BK sues franchisees for breach of contract in FL when franchisees in MI (b) DC awarded BK damages and injunctive relief (c) CoA reversed, saying DC had no personal jurisdiction over R under FL law ii. Ruling – reversed (a) Asserting personal jurisdiction over R doesn‟t offend DPC (b) The franchise came from a contract which had substantial contacts with FL (c) R knew he was affiliating himself with a corp. based in FL 6. Cyberspace a. Three kinds of contacts – nothing explicitly gives general jurisdiction i. Passive contacts – can read website, but nothing more – NOT minimum contacts
Flusche 19 of 27
ii. Commercially transactional contacts (a) Invitation to deal (b) But fine line between advertisement and invitation to deal (c) If invitation focused on particular state – minimum contact to support specific jurisdiction (d) Clearly specific jurisdiction iii. Interactive contacts (a) Website makes provisions to deal with persons in other states (b) Something less than invitation to deal & focus on particular state b. Coastal Video Communications Corp. v. The Staywell Corp. (p. 126) i. Facts (a) Declaratory judgment action – potential D can take on role of P, commence lawsuit (b) Coastal – asked court to make declaration with respect to a copyright held by Krames (c) Krames said it was being improperly summoned (d) Krames had quite a few contacts – sold & distributed, sold to three hospitals (e) No evidence that “Safety Zone” had been sold in VA ii. Ruling – grants P‟s motion for discovery (a) Specific jurisdiction denied (b) Might have case for general jurisdiction, if enough VA activity (1) Sales generated in the state through the website (2) How many times website was accessed by people within VA iii. If general jurisdiction granted, P might have service of process problem (a) Most states have long-arm statutes focused on specific jurisdiction (b) But since Krames has qualified to do business in VA, must have resident agent for service 7. Consent a. Carnival Cruise Lines, Inc. v Shute (US 1991) (p. 141) i. Couple bought cruise ticket from agent in Washington; ship left CA; went to international water ii. Mrs. S slipped and fell – sued cruise line in DC in Washington iii. Part of contract said all disputes litigated in FL iv. Carnival moved for summary judgment – improper forum v. SC – state of Washington improper (a) Carnival had reasonable motive to limit jurisdiction (b) Would have specific jurisdiction without forum clause – agent sold tickets in Washington 8. Notice a. Introduction i. Must be power in the court for asserting personal jurisdiction ii. But court also has to have ability serve constitutionally sufficient notice iii. Constitution doesn‟t require that a D doesn‟t know about a lawsuit, but only that a constitutionally sufficient effort has been made iv. Process – copy of complaint and copy of summons v. Two questions: (a) Statutory – has this particular mode of service been authorized by the state or nation? (b) Constitutional – assuming the statutory framework was followed, is the framework itself constitutional? b. Mullane v. Central Hanover Bank & Trust Co. (US 1950) (p. 146) i. Facts (a) NY permitted pooling – single trustee could manage a collection of depositors‟ money (b) Surrogate court examined trustee every 3 years – published notice of hearing in newspaper (c) Mullane was court appointed guardian for income beneficiaries (d) M challenged jurisdiction – law, as applied here, is unconstitutional – insufficient notice ii. Ruling – notice partly insufficient (a) Notice must be reasonably calculated to notify parties and let them object
Flusche 20 of 27
(b) Standard – what would you do if you really wanted the person to find out? (c) Three groups (1) Known – addresses on file (2) Unknown, but knowable – could be identified with some effort (might be unreasonable) (3) Unknown and unknowable – unborn beneficiaries (d) Mailing notice to known address would probably be adequate (e) Notice which is a mere gesture is not due process (f) Court comes close to saying that statute is unconstitutional on its face c. Statute for providing notice in District Courts – R 4 i. Waiver (a) Not service, but agreement to consent (b) If waiver signed and returned, no need to serve ii. Personal service (most common) – service in person on someone 18-years-old or over 9. Long-arm statutes a. CA statute – court may exercise jurisdiction on any basis not inconsistent with the Constitution of the state or the US b. Gibbons v. Brown (Fl. Dist. Ct. App. 1998) (p. 160) i. Facts (a) FL statute (1) Provides D is engaged in substantial and not isolated activity within the state (2) Provides personal jurisdiction and service whether or not claims arise out of that activity (b) Three people drove together through Canada (Gibbons, Browns) (c) Browns from FL, Gibbons from TX (d) G sued Mr. B for negligence – he turned based on her alleged direction – G appeared in FL (e) Later Mrs. B sued G in FL, alleging that she was negligent ii. Ruling – affirm – FL has no personal jurisdiction over G (a) No way to serve her with process (b) Focused on word “is engaged” – previous lawsuit is old – must be current activity B. Subject Matter Jurisdiction 1. Authority of a judge or a court to take on and dispose of a category of business 2. State Court a. Two questions i. Constitutional (mostly state) ii. Statutory b. States have both limited and general jurisdiction courts i. Limited – narrowly defined subject matter ii. General – established by constitution and statutory law (a) Court can take care of any non-criminal business (b) Don‟t have to explain how and why you have the right to be there (c) None have pleading requirement to allege subject matter jurisdiction 3. Federal Court – limited – must plead in complaint (how and why you can be there) a. Constitutional background i. Curiously overlaps – same case would be adjudicated in state and federal court ii. Article III – establishes federal courts (a) Authorizes, but does not require, lower federal courts (b) Federal question jurisdiction – cases “arising under” Constitution, laws of U.S., or treaties (c) Cases between citizens of different states b. Federal Question i. Osbourne v. Bank of U.S. (US 1824) (a) Marshall, nationalist, described scope of federal question jurisdiction as including almost all
Flusche 21 of 27
(b) If there is an issue of federal Constitutional or statutory law, such that the construction of that issue might determine the outcome, that is sufficient ii. 28 U.S.C. § 1331 – arising under – same language, but more limited (a) American Wellworks Co. – simply ask which sovereign created cause of action (b) Look at the books on the desk iii. Louisville & Nashville Railroad v. Mottley (US 1908) (p. 182) (a) Well-pleaded complaint rule – federal claim must arise in well-pleaded complaint (b) Facts (1) Erasmus and Annie were injured in RR accident, got a life time free pass (2) Several decades later, RR refused to honor their pass – Congress made passes illegal (3) Sued in inferior federal court, asking court to make RR let them ride free (4) Reason the RR gave was the federal statute that prohibited passes & statute is unconstitutional under U.S. Constitution (c) Ruling – no subject matter jurisdiction – federal law is only an answer to anticipated defense iv. Three questions when D challenges federal question (a) Is there a federal issue at all? – look at books on desk (b) If there is a federal issue, does it “give rise to” P‟s claim? – well-pleaded complaint rule (c) If federal issue isn‟t part of claim, is it important to “federalize” the case? v. Overlap between R 12.b.1 and 12.b.6 (a) If you plead an implied claim and court decides it wasn’t implied, can look at it in two ways: (1) No federal question – dismiss for lack of subject matter jurisdiction (2) Failure to state a claim – dismiss under 12.b.6 (b) SC indicated preference for 12.b.6 – this is judgment on the merits c. Diversity i. Defined in 28 U.S.C. § 1332 ii. SC held in Tascher (1967) that jurisdiction exits if there is diversity between any two of the parties iii. Strawbridge v. Curtis (1806) (a) Statute requires “perfect” diversity (b) All of the plaintiffs and all defendants must be citizens of different states (c) Plaintiffs may be citizens of the same state OR defendants may be iv. Sole original jurisdiction of U.S. District Courts v. Individual – citizenship based on domicile – move somewhere and intend to remain there vi. Corporation – state in which it is incorporated AND state where it has principle place of business vii. Burden – party invoking diversity viii. At least $75,000 in controversy – Congress usually raises limit instead of revoking statute (a) This is defined by the complaint – unless, on face of complaint, there‟s clearly not $75k (b) R 18 – permits joinder of complaints by P – can aggregate amounts d. Supplemental i. If P joins a federal and state claim (under R 18), how do we coordinate subject matter jurisdiction? ii. 28 U.S.C. § 1367 iii. United Mineworkers v. Gibbs (a) Case brought in U.S. DC (b) Gibbs sued United Mineworkers: (1) Violation of Federal Labor Relations Act (2) Tennessee common law – compensation for not being able to haul coal (c) No diversity (d) Jury decided for Gibbs on both claims, TJ set aside verdict on first claim (e) DC entered judgment for Gibbs on jury verdict on state claim iv. Under Constitution, was this permitted? (a) SC held that DC properly entered judgment on state law claim (b) 4 important things:
Flusche 22 of 27
(1) Federal claim must be substantive (2) State law claim, with respect to federal claim, part of “common nucleus of operative fact” (3) P would ordinarily be expected to try claims in one proceeding (4) Decision to go on with state claim is within discretion of trial judge v. Structure of § 1367 – resolves the posed question (a) Sec. a – bring all state claims that Constitution allows into court (Gibbs can guide) (b) Sec. b – if it‟s a diversity case, we don‟t want everything (c) Sec. c – DC can decline supplemental jurisdiction C. Venue 1. Decision of sovereign, from geographic standpoint, where in the territory a particular lawsuit be filed 2. Flavor of convenience, fairness, but not in the constitutional league of personal jurisdiction 3. In DC, venue is proscribed – 28 USC § 1391 a. Venue is reference to basic categories of federal subject matter jurisdiction b. About federal question cases – civil action where jurisdiction not found on diversity c. Helps individuals translate individually oriented venues for use with corporations D. Removal 1. Options, generally a. If case dismissed in federal court, might could re-file in state court b. No way to remove from federal court to state court OR from state to state 2. Statute – 28 U.S.C. § 1441 – authorizes removal 3. Basic requirements a. Defendants only (must all agree) b. Original jurisdiction required (must show access to federal court on face of complaint – Mottley rule) c. Only non local citizens in diversity (D, sued in local court, by diverse P, can‟t remove) 4. Procedure – §§ 1446-1450 a. Have 30 days to remove once you receive the complaint b. File notice of removal and bond for any attendant cost in DC c. Case is then out of state court d. Case can be remanded on motion by P, explaining that case isn‟t removable 5. Caterpillar, Inc. v. Lewis (US 1996) (p. 214) a. Facts i. Early on there was a local D in diversity case, that D settled at some point ii. DC – I think it‟s removable and continued through judgment b. Ruling – reversed i. At time DC decided, it was wrong – measure existence of original jurisdiction at time of removal ii. By time judgment was entered, situation had changed again & there was diversity iii. If diversity at time of judgment, 2 nd requirement is satisfied IX. The Erie Problem A. Introduction 1. Vertical choice of law – how to sort out relationship between federal and state law 2. What does federal court do with respect to the law of the state where it sits? 3. 28 U.S.C. § 1652 – laws of several states are rules of decisions in civil actions in courts of U.S. B. Swift v. Tyson (US 1841) (p. 222) 1. Federal diversity case 2. SC held that Rules of Decision Act didn‟t require court to follow NY state law 3. Positive state law must be followed, but NOT general, federal common law (at least in commercial cases) C. Early 20th C U.S. Special Forces 1. Eastern corporate enterprises – use diversity jurisdiction to work out problems in West – get their own law 2. Federal judiciary – conservative, pro-business judges 3. Western Progressives – pro-state, in favor of redistribution (Brandeis was one) D. Erie Railroad v. Tompkins (US 1938) (p. 224)
Flusche 23 of 27
1. Facts a. P, walking along PN RR track, sought to recover injuries from train b. RR argued P was trespasser under PN common law c. P sued in diversity in NY (state of incorporation of RR) – wanted to disregard state law 2. Ruling a. Eliminated general federal common law b. Rule – “Except in matters governed by the Federal Constitution or by Acts of Congress, the law to be applied in any case is the law of the State” (p. 226) E. Erie Application Tests 1. Brandeis Test a. Basically restates Rules of Decision Act b. Consider Brandeis‟ intent – limit Eastern corporations, reign in judicial lawmaking of federal judges c. Federal common law eliminated 2. Substance/Procedure Test a. In any situation where there are competing federal & state candidates, if diversity, fed. court follows state substantive law & fed. procedure law b. Problematic – not at all in Erie; useful, but dubious 3. Outcome Determination Test a. Guaranty Trust – Frankfurter criticized substantive procedure case i. P brought class action, alleging D breached duty as trustee ii. Choice of law would determine outcome of the case iii. When in diversity, if choice of state law determines outcome, must use state law b. If Erie was Progressive, this is exactly right – same outcome as state court c. Hart – wrong – diversity must be in Constitution for some purpose – different outcomes possible d. Erodes diversity jurisdiction 4. Byrd Modification of Outcome Test (balancing test) a. P alleged negligence while working on D‟s power line – sued in tort b. Issue of workers‟ compensation statute was decided by judge – would‟ve been jury in federal court c. Rule – is state practice “bound up with the definition of the rights and obligations”? i. Even if not substantive, would it determine outcome? 5. Hanna Modification of Outcome Test & Safe Harbor a. Administrator of estate was served in compliance with R 4.d.1 i. MA law – someone had to hand administrator the papers ii. D moved to dismiss diversity action iii. If MA law applies, case is dismissed b. Erie doesn‟t control when an applicable federal rule conflicts with state law or policy i. If there is a FRCP, and if the rule is within the statute (enabling act), and the act & rule are constitutional, follow the rule ii. Federal statutes also apply, provided statute applies to the case & it‟s constitutional (supremacy) b. What‟s left to be in conflict? i. Federal, judge-made procedure iii. Ex: standard for directed verdict, standard for granting summary judgment, what time to start the court, whether to open the window F. Cases 1. Ragan v. Merchants Transfer & Warehouse Co. (US 1949) (p. 234) a. Federal Rule 3 clashed with state statute that defined when a statute “commenced” b. Major example in pre-Hanna world – many expected that Hanna would overrule it 2. Stewart Organization v. Ricoh (US 1988) (p. 244) a. Makes clear that which was unclear after Hanna b. Safe harbor of Hanna extends to federal statutes c. Conflict with 28 U.S.C. § 1404 (forum transfers) & Alabama cases governing forum selection clauses
Flusche 24 of 27
d. SC – federal law would determine the forum in a case commenced in federal court 3. Gasperini v. Center for Humanities (US 1996) (p. 245) a. In NY, remitter process (judges monitor size of jury verdicts) had been one in which federal courts (R 59) examined size of verdicts & granted new trial OR dismissed case b. NY statute instructed appellate courts to review verdicts & grant new trials when compensation not reasonable c. Question came up – should federal courts, particularly appellate courts, follow NY statute? d. Awkward in federal system – 7th A (no reexamination of jury verdict) e. SC realized that trial courts were more comfortable place for this f. Federal appellate courts in NY should NOT apply NY statute g. BUT federal district courts SHOULD apply NY statute X. ACA A. Introduction 1. Introduction a. Illnesses in the neighborhood – Anne Anderson asked “why here?” b. Anderson had been in contact with Boston firm about her son‟s surgery – asked if they would look c. S took over the case, started his own firm, sued Grace and Beatrice 2. Causation – key points of lawsuit a. Spilled or dumped b. Transmitted c. Consumed d. Leukemia – general & specific 3. R 8.a.2 – complaint is sufficient 4. R 11 – motion denied by judge – S had some basis to believe what had been alleged a. Under new rules, this might be granted – S assumed materials were spilled or dumped B. Answer & Complaint 1. General, non-positive denial a. Anything not specifically mentioned is denied b. Today, under R 11, you would be sanctioned if you advocated a new position not in complaint c. Specifically denies several things also 2. What was admitted? – address of Grace, Wooburn exists, there is a Cryovac division 3. Other defenses a. Second defense – P failed to state a claim b. Third defense – misnames the Ds (like Zilenski) c. Fourth defense – D exercised due care and was responsible (might be affirmative defense) d. Fifth defense – suggests that not all parties are included e. Sixth defense – statute of limitations ran out (R 8.c – affirmative defense) 4. D must get the answer right, especially regarding affirmative defenses – then P assess obligations 5. Production and persuasion burden divided a. Plaintiff i. Duty ii. Causation iii. Damages b. Defendant i. Statute of limitations – time, time of commencement ii. Due care C. Discovery 1. Interrogatories – First Set a. What responsibility was S seeking to meet? – prove that Cryovac “dumped or spilled” TCE b. What did S find out? – nothing c. Only established facts are about Grace‟s corporation status & Wooburn‟s population
Flusche 25 of 27
d. Objections i. Aren‟t enough grounds for the lawsuit (R 11) (a) Look under R 26.b – this is beyond the scope of discovery (1) Tell the judge this objection is dubious (b) This is more like a R 26.c delay request ii. Some sections ask for information that is not relevant (a) Then – is this relevant to subject matter? – no, but it‟s easier to conceive of relevance (b) Now – is this relevant to a claim or defense? – definitely not 2. Other Events a. Deposition of Richard Aufiero i. Beatrice and Grace had noticed the deposition ii. Recounted the story of the death of their son, with pain and emotion iii. Facher told himself that he had to keep P‟s off the witness stand iv. Without modern discovery, Facher never would‟ve seen Aufiero before the trial started b. Al Love i. Gave a deposition and had some second thoughts ii. Anderson put Love in contact with S iii. Professional responsibility rule – “no contact rule” – anyone who is represented by an attorney is not supposed to talk to other people 3. Assuming current controls in place, could they have smoothed discovery? a. Certification i. Could S have signed the interrogatories? (a) Needed to find out more about “spilled or dumped” (b) Had done about as much as he could do by himself ii. What about C‟s response to interrogatories? (a) Made no inquiry at all – couldn‟t be “reasonable inquiry” – stonewalled (b) C should‟ve asked for a protective order (R 26.c) b. Protective Order i. Could this have solved the deposition of the expert? (a) C couldn‟t know that S would start swearing (b) S might‟ve gotten an order that C couldn‟t go beyond questions about the actual test c. R 37 sanctions against S i. Did S disobey an order form the judge (R 37.b.2)? – no ii. Sanctions have to be precisely prescribed d. Statutory sanction against S i. Did S cause excess costs and expenses? – no, did nothing extreme e. Common law i. If there is an order, you can be punished for contempt of court D. Settlement – should S accept F‟s offer? 1. Ultimately, your client must be the one to decide 2. It‟s very important that F called S a. It‟s almost always wrong to make the first move b. Never bid against yourself E. Summary Judgment 1. Initial burden a. Cheeseman b. Must show that P couldn‟t prove that the water caused leukemia – foreclose on that c. Pulls in evidence from physicians who worked on leukemia – found nothing to suggest that TCE played a role in the disease 2. S‟s response a. Not necessary – opinion of two researchers doesn‟t foreclose
Flusche 26 of 27
b. Today, would have to respond – Celotex burden much lower c. Wise i. Could argue that he didn‟t have to because Cheeseman didn‟t meet his initial burden ii. Had other expert testimony 3. S does meet production burden – reasonable jury could‟ve found that TCE did play a role in leukemia F. Pretrial Plan 1. Conventional Plan a. Holistic approach i. Single happening ii. Try all 23 claims and 6 causes of action at once iii. Each party would have to relate to elements in the case b. General verdict i. Jury answers two questions: (a) For the P or D? (b) In answer is for P, how much? ii. For multi-P case, answer for each P 2. S Plan a. Serial approach (test case) i. Anderson‟s case would be tried all the way through to general verdict ii. Implies trying a whole case 23 times b. General verdicts 3. F Plan a. Polyfurcate approach i. Cut into many pieces – start with the transmission issue (how does water flow through rocks) b. Special verdicts 4. What would you recommend? a. For S, would have to do whole thing 23 times – each P should come in and have their case heard b. D is bound by prior rulings in serial cases c. F plan is most efficient 5. Class action – collect Ps into a class, provide evidence form Ps (determined from random sample) G. JML 1. Mass. sent cases to jury on mere scintilla of evidence 2. Would judge grant directed verdict motion for P? 3. Under R 50, question is what a reasonable jury might conclude 4. Ruling – Grace (intact), Beatrice (couldn‟t be liable for anything prior to 1968) H. Verdict 1. Jury decided that Beatrice didn‟t dump chemicals or contaminate the wells 2. Jury found Grace responsible for 2 parts of question 1 3. Jury wrote “ND” for the timing of dumping the chemicals 4. Post Trial Motions – Cheesman motioned for JNOV and new trial 5. Jury‟s finding for Beatrice a. Is this a final judgment? – all claims against Beatrice are disposed, judge dismissed Facher b. Facher needed a 54.b order c. Judge‟s order – finding for Beatrice with costs (filing fees at court) I. Extraordinary relief 1. Case against Grace was settled 2. F got Beatrice case to CoA 3. While case was pending in CoA, S discovered a document that would‟ve been helpful during trial 4. S could only seek extraordinary relief from the judgment 5. S filed a R 60.b motion – § 3 – misconduct – rules of discovery violated OR Riley didn‟t tell the truth 6. Motion was filed a few days after one year after Skinner had entered the final judgment for Beatrice
Flusche 27 of 27
7. Skinner refused to grant the motion – S appealed this 8. CoA combined both appeals – Skinner had to investigate further 9. Skinner held hearings, refused to grant R 60.b motion a. Skinner recognized that document should‟ve been delivered, and it conflicted Riley‟s testimony b. Skinner held that S violated R 11 & that S was at fault J. Court Selection 1. State court a. Personal jurisdiction i. Look for MA statute that permits service in this kind of case (show that it is constitutional) ii. Establish minimum contacts – specific jurisdiction - straightforward b. Subject matter jurisdiction i. File papers in MA court of general jurisdiction (find in state constitution or statute) ii. Might be a court of limited jurisdiction for your cause of action c. Venue – look in MA statutes for the county you can sue in 2. Federal court a. Personal jurisdiction i. Look at R 4 (a) Says what sort of cases District Court wants (b) How to serve notice (c) R 4.k – DC looks to see if the state would want that D ii. Look at state‟s long-arm statute iii. Is application of long-arm statute constitutional? b. Subject matter jurisdiction i. Look to 28 U.S.C. § 1332 ii. Is it a federal question case? – no iii. Diversity jurisdiction (a) Citizenship of parties (b) Claim is over $75k c. Venue i. Look to federal statutes – 28 U.S.C. § 1391 ii. P chooses venue, except 28 U.S.C. § 1404 – D can request a convenience transfer to another DC 3. Removal (28 U.S.C. § 1441) a. Ds must agree b. Original jurisdiction required c. Only non-local citizens in diversity d. Remove to local district court