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Civil Procedure I

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Civil Procedure I Powered By Docstoc
					                                                            PURPOSES OF CIVIL PROCEDURE RULES
1. Fair resolution of disputes
2. Efficient resolution of disputes
                                                                    PRE-LAWSUIT REQUIREMENTS
Lawsuit initiated by COMPLIANT, contains
          Facts (allegations) What are the legal consequences?
          Law (claims)
Pre-Lawsuit legal research and fact investigation (Pleading Stage)
          Bridges v. Diesel Service
          Rule 11(b)
                    Suppose to exhaust administrative remedies before filing the complaint
                    D moves for sanctions under rule 11. P did violate the technical rule, but the court is not obligated to impose sanction under 11(c) for
                     violation of 11(b).
                    11(b) (2) stating signing of paper is certifying to the best of his knowledge, information and belief…etc.
                    11(c) 1 says “may” so the court has discretion.
Contents of the compliant (Pleading Stage)
          Bell v. Novick Transfer Co.
          Rule 8 and Official Form 11
                    Personal injury, negligence claim.
                    Complaint gave detail on location of accident, but not the manner of negligence was not included.
                    Only stated in general that the accident was completely due to negligence of Novick, but not the negligence of Bell.
                    Rule 8 FRCP only states complaint be “short, and plain statement showing pleader is entitled to relief”.
                    Form 11 is a basic complaint for negligence (see supplement appendix).
                    P stated not due to his own negligence (contributory) Rule 8(c) suggested you don’t need to state such. Why was it done?




Responding to the lawsuit (Pleading Stage)
       Answer and motion. Answer does not ask the court to do anything, as oppose to a motion.
       In your first response, you must assert a defense against a pleading of relief based on rule 12(b)1-7
       First section talks about you must have an answer, then 1-7 are the possible assertable defense in motions to dismiss the compliant. You can either
        directly answer or motion.
       Objections to location and manner of suit 12(b) 1-5 and 7—Civ Pro 2
       Objections to content of complaint, 12(b) 6—we will look at this. There is something wrong with the compliant content
              o (1) lack of subject-matter jurisdiction;
              o (2) lack of personal jurisdiction;
              o (3) improper venue;
              o (4) insufficient process;
              o (5) insufficient service of process;
              o (6) failure to state a claim upon which relief can be granted; and
              o (7) failure to join a party under
       Motion Practice
              o Moving papers
                             The motion itself, affidavits and others, serve on opposing party, file with court.
              o Opposition
              o Reply (may not)
              o Hearing (may not)
              o Decision and disposition (grant or deny, not dismiss)
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         Answers
              o Not a request for court to act
              o Ingredients FRCP 8(b) and (c)
                           Denials 8(b)
                           It did not happen…..or other factual response
              o Affirmative defense 8(c)
                           It might have happened, but…
                           Legal response depend on facts
              o Counterclaims and other claims by FRCP 13
                           Legal response
                           It was not me, or now that you mention it…etc
         Remember rule 11 (b) (4) always says a lawyer need to plea “reasonably”.
Discovery
         Rule 16/26 apply during a pre-trial conference, 26 pertains discovery
         Not the same as investigation. Investigation is informal, and mostly pre-filling and during action
         Discovery has formal procedures, FRCP 26, 27-37 and 45
         Disclosures, interrogatories, request for admission, request for production depositions.
               o Disclosures are what you have to give another party without request, unlike the rest
         Puts party under obligation to disclose information
          Butler v. Rigsby
                    Rule 26 (b) (1) applies to scope of discovery-Parties may obtain discovery regarding any non-privileged matter that is relevant to any
                     party's claim or defense
                    Rule 26 (c) When Required. On motion or on its own, the court must limit the frequency or extent of discovery
                    District court reviewing magistrate judge’s (who handles discovery) ruling on discovery’s scope
                    Butler moved for motion for protective order to bar Rigsby seeking certain documents in discovery
                    Insurance raised 3 objections:
                          o Info are none-relevant
                          o Info are Privileged
                          o Task is overly burdensome 26(b) (2) (C) (iii)
Motion for Summary Judgment
         Happens post discovery. Supported by some factual material.
         Governs by Rule 56, mainly 56 (c) (2)-- The judgment sought should be rendered if the pleadings, the discovery and disclosure materials on file, and
          any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law
         Typically filed by defendants, or by P when there is a counterclaim by the D. Can be filed by either.
         Burden of persuasion in on the P (since D typically files SJ), and evidences are looked at in favor of the non-movant.
         Typically accompanies with affidavits (stipulated facts) showing what are agreed based on discover findings.
     Take Away
              Two main ways to response, pre-answer motion (rule12) or answer (rule 7, 8)
              Pleadingdiscoveryadjudication
              General function and limits of discovery
              Summary judgment; burdens of persuasion
          Houchens v. American Home Assurance
                    Alice (surviving spouse) suing under breach of K. D are insurance companies filed for summary judgment, which the district court granted
                     since P cannot meet the burden of persuasion of “accidental”, which insurance should pay.
                    Already inferred that Coulter is dead, cannot infer again that he died accidently.
                    Cannot grant when there are factual dispute (conflicting stories).
Judgment as matter of law
         Jury finds facts, judge applies law
         Exceptions include 1. bench trial and 2. Judgment as matter of law
         Summary judgment has the same standard for judgment as matter of law (Rule 50, instead of 56)
         Judgment as matter of law (JMOL) is the same as summary judgment, but come into different point during trial. Typically after jury hears the case.
         Standards for J.N.O.V (after trial) equal to Direct verdict (happens before trial). = JMOL; take decision power away from the jury
     Norton V. Snapper Power Equipment
              James Norton suing Snapper since his mower moved backwards and blades did not stop immediately and cut 4 of his fingers off. Sued under
               negligence, product liability. Burden for P need to show alternative (better) design and how the injury occurred, must show cause somehow.
              Judge issued JNOV in light of the evidence available for the jury.
              Trial level 1. Defect (no reasonable jury can conclude this) 2. Cause (no reasonable jury can conclude this)
                  th
              11 circuit need to determine: 1. If the “dead man” device defective (yes); 2. If lawn mower is defective, if this is the cause of the injury. (yes;
               could be, using inference) [reverse since both reversed, one is insufficient]
              Now reversed, judge has to withdraw JNOL. Still need to determine damages, maybe.


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                                                                    PLEADING (Rule 8)
              The Well-Pleaded Complaint
                   o Must be legally and factually sufficient
                               Legally insufficiency
                                         There must be a legal claim (can‘t sue spouse)
                               Factual insufficiency
                                         The forms are sufficient (by definition, Rule 85)
                               You can file a claim under Rule 12(b)(6) - does not distinguish between factually or legally insufficient (failure to state a
                                claim)
                                         Insufficiency does not equal likelihood
                               th
     1.   Common law (pre-19 century)
               o State the fact in specific claim and specific ways, depending on type of claims. Minor informalities could be a disaster to the P
               o Pleading would go back and forth, sub for discovery.
    2. Code/fact pleading (mid 1800s to 1938)
               o Statement of facts constitutes cause of action. Showing some link between fact and cause of action.
               o Court would not agree what are the statement of facts (negligently drive in another; legal conclusion or fact?)
    3. “Notice pleading” (1938 to ??)
               o Language showing P is “entitled to relief”
               o Rule 8 (a) complaint ingredients
                             Rule 8 (a) 1: grounds for jurisdiction
                             Rule 8 (a) 2: “a short and plain statement of the claim showing that the pleader is entitled to relief”
                             Rule 8 (a) 3: demand for relief sought
          Haddle v. Garrison example on page 340
                    Paragraph 17 to 20 is the statement of claim 8(a) 2
                    Paragraph 21-23 can be relief 8 (a) 3
Analyzing a complaint’s “statement of the claim” (Determine if the pleading follows rule 8) (Like IREAC)
         Identify the claim:
               o What law authorizes the court to award relief, if everything P says is true?
         Identify the elements of the claim—e.g., some statue show you must fit a, b, c…to establish the claim
               o Statutory language
               o Judicial precedent
               o Jury instructions
         Using elements as checklist, analyze allegations
Form 11 (Example Compliant)
         Claim: negligence
         Elements::duty. Beach, causation, damage
         Allegations: “negligently (para 2) “as a result, “physically injured” para 3 for example. (p.177)

                                                               GROUNDS FOR RULE 12(b) 6 MOTIONS
Key Distinctions and concepts
         Pre-answers (Rule 12b) v. answers (Rule 7 and 8)
               o Pre-answer are not to merit
               o Answers-must admit or deny allegations
         Defense (law) v. denials (facts)
         12(b) defenses v. affirmative defenses
               o Possibility of waiver only on 12(b) 2-5, see 12(h)
               o Relation to P’s burden of persuasion
               o If one does not bring up affirmative defense before discovery, may not have evidence entered to support that later.
               o 12(b) are not factual, mostly legal.
               o If D carries that burden (AD), elements in the applied law trump the original allegation.
Haddle v. Garrison (Rule 12(b) (6) application) (If the facts justify relief under law?)
         Three ways for 12 (b) 6
               1. Point out inherently defective allegations (impossibilities) (Defective in historical events listed)
               2. Point our absence of allegations linked to elements (Defective in historical events listed)
               3. Question nature of elements or the type of facts that would satisfy plaintiff’s burden on elements. (content of law)
         Court discussed the 12(b) 6 standard. Even if all you say is true, the law affords you no relief.
         Facts: Whistleblower (Haddle) is an at-will employee; is fired; she says b/c she is a whistleblower; alleges injury and files for damages under federal
          statute; issue is whether an at-will employee has such rights
         Rule 1: If no set of facts that support the P‘s claim will entitle the P to relief, then a 12b6 motion will be granted
               o The court is not worried about whether the P can prove her facts
               o No fact-finding necessary
         Rule 2: A 12b6 motion should be denied if any set of facts alleged in the complaint would entitle the P to relief
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                o Worry about fact-finding later; but you don‘t dismiss a case right off-the-bat if, assuming all things are true, the P would have a case
         Also looked at §1985(2). If the nature of claim that there has to be an actual injury. (always two part for 12(b) 6 for (1) burden, (2) substantive law
          standard)
         Court has to know that Haddle is an at will employee to make this ruling, how? This was not in the complaint. It could happen at an hearing, or
          stipulated that fact. At will is the only factor looked at the SC level.
         SC said there was an error in applying the second legal standard, §1985(2), not 12(b)(6).
Rule 12(c) is motion to rule on pleading
                                                             CHANGING INTERPRETATIONS OF RULE 8(a) 2
Potential narrowing of 8(a) 2
         “short and plain statement of the claim showing that the pleader is entitled to relief”
         Conley (1967-2007) : “no set of facts”
         Twombly (2007-2009) : “plausible”
         Iqbal (2009-present) : “plausible + nonconclusory”
         General default goes to 8(a)(2). But a different standard can apply depending on type of claims presented.
         Effectively, easier for D to file motion to dismiss. Harder for P to survive.
         Types of Rule 12(b)(6) arguments
                o Point out inherent flaws in allegations
                o     Point out absence of allegations for certain elements
                o Attack legal standard or definition of elements
Conley v. Gibson
         “*A+ complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in
          support of his claim which would entitled him relief.”
Bell Atlantic Corp v. Twombly (what facts justify relief under this law?)
         Said Conley should not be applied anymore. Should only address on 12(b)(6)
         Interpret Rule 8(a)(2). P alleged conspiracy, but there was no specific on how price fixing was conspired (agreement).
         P only use the statue’s language to the complaint.
         Moved away from Conley’s language.
         “Factual allegations must be enough to raise a right to relief above the speculative level. “
         “We do not require heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face.”
                o Plausibility Pleading: raise the pleading bar, include in complaint “grounds upon which it rests”
                               Bell Atlantic Corp v. Twombly:               P (Twombly) bring class action suit claiming D has engaged
                                                                             in ‗contract, conspiracy, or combination‘ by parallel
                                                                             conduct of baby bells
                                           ISSUE – NOTICE: give facts about what the claim is about so D knows what allegations are (Factual sufficiency)
                                           ISSUE – SCREENING: claim must be plausible meaning claim must be more than merely possible
                                           HOLDING: sufficiency of complaint requires notice of claim (Conley) and plausibility – more than merely possible,
                                            above speculative level – statement has to have enough heft to show P is entitled to relief
                                           PP: frivolous cases should not go any further if they can‘t provide more than what 8(a)(2) requires – judicial economy
                                           PP: J Souter says they are clarifying rule, courts want more screening, but this could stop worthy claims

Ashcroft v. Iqbal
         When conclusory, cannot assume that they are true, must have facts. “assumption of truth”
         Then once have facts, use Twombly standard, see if they are plausible.
         “*A+ court considering a motion to dismiss may begin by identifying allegations that, because they are mere conclusions, are not entitled to the
          assumption of truth. While legal conclusions can provide the complaint’s framework, they must be supported by factual allegations. When there
          are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to
          relief.”
         Conclusory allegations are not to be presumed true
         Court is to determine whether nonconclusory allegations make claim for relief plausible
                                                        TRADITIONAL HEIGHTENED PLEADING: RULE 9 (b)
          In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and
          other conditions of a person's mind may be alleged generally.
                     o Rule 9(b): FRCP provides for heightened pleading requirements in two specific contexts
                                Fraud or mistake; conditions of the mind – in alleging these claims, a party must state particular circumstances or details to
                                    substantiate the claim
                                PP: Rule 9(b) is necessary to deter frivolous or strike suits (allegations are too easy to fabricate), and to protect the
                                    reputation for the D (only allow for plausible claims to be litigated on)

Compare heightened pleading: Stradford
Stradford v. Zurich Insurance
         Stradford started by alleging insurance failed to pay
         Zurich asserted fraud trough a counter claim in their answer. “devised a scheme to defraud defendant”

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        P asserted the counter-claim does not meet Rule 9(b)
        Court wanted D to amend the claim to state circumstances constituting fraud and mistake (time, place and nature)
Other pleading heightened standards
        in securities fraud (PSLRA)
        Shareholder derivative actions (FRCP 23.1)
        Other possibilities (e.g., state law)




                                                                       PLEADING BURDENS
Allocation of pleading responsibilities
D pleading responsibilities, proving affirmative defense
Distinguish between pre-requisites to suit and elements/affirmative defenses
Jones v. Bock
         P is responsible for doing something, but not necessarily to be pleading something
         Sued under §1983 for violation of constitutional rights by public official
         D argued failure to establish exhaustion of admin remedies under PLRA Prison Litigation Reform Act
         Holding: This is not a pleading requirement, it is an affirmative defense. Partly because Rule 8 is not a heightened burden
         Can only heighten burden of the rule requirement by amending the procedure, not by judicial interpretation.
Identifying affirmative defenses
         In FRCP 8(c), statutory text, case law, and treatises and form jury instructions




Three kinds of burdens:
        Burden of pleading
               o Why does this exist?
                          In an adversarial system, in which legal conflicts are between private individuals and disputes are privatized, you have to let the
                           government know that you want to be involved in a dispute
                          Rule 8 is an embodiment of the notion that someone needs to put the government on notice that there is a dispute going on
                                    If you want to have a dispute in the legal system, you have to tell the government (not the other side, although you have
                                     to do that, too)
                                    Allocation of resources over the 2 individuals
                          Different political regimes look at this differently – they see disputing as not a private affair, but rather as part of the social fabric
                           (Western Europe)
                          In a Marxist regime, a dispute over a good is, based on Marxist ideology, automatically a social issue
        Burden of persuasion
               o Why does this exist?
                          To tell you for each of the elements of a COA, who has the burden of persuasion
                                    Elements of a COA (example: contract dispute): 1. offer, 2. acceptance, 3. consideration, 4. damages
                                    In the civil arena: preponderance of the evidence
               o Where does this burden lie?
                          Wherever you want it to lie
                          Any element gets made into an affirmative defense by putting a negative sign in front of it
               o No necessary connection between the 2 burdens
                          In Gomez & Leatherman, no one is arguing that qualified immunity is not a defense – the question is more like who has to plead
                           that defense & who has to prove it
                          Convention says that whoever has the burden of pleading also has the burden of persuasion – but that‘s just convention
                                    The risk is that if you‘re not sure if you have to plead something, under convention: if you plead it, you have to prove it

                                                                                  5
                                       In real life, it may be that no one may have access to the evidence (Aquaslide case)

         Burden of production
               o Covered more in trial
               o Judges will be asked whether sufficient evidence has been produced so that we can proceed to trial
               o If you have burden of production, you need to produce enough to get by a motion for a directed verdict
               o Analytically, based solely on the formal relationships between them, these 3 burdens are completely severable – someone could have
                    burden of pleading, while someone else could have burden of proof
                             You see this complicated arrangement sometimes (employment discrimination cases)
               o This makes clear how ambiguous the concept of an element is
                             What you think is an element, could actually be an affirmative defense
                             What you thought was an affirmative defense, could be an element
                             To deal with this, the courts have produced ―rules of thumb‖ to help guide parties to know what an element is vs. an affirmative
                              defense, to help guide parties to know what their burdens are
                                       But asked a priori, you may not know the answers
                                       LWW
                                                           LAW GOVERNING LAWYERS FRCP RULE 11
                               When can sanctions be imposed:
                                        o Even if a lawyer enters an intentionally frivolous motion that is not signed, he can still be given sanctions.
                                        o If a plaintiff feels that the defendant has violated Rule 11, the plaintiff must wait 21 days. If the defendant has not
                                              edited or withdrew the motion, then he can be sanctioned.
                                                   o Safe Harbor Provision or “safe harbor clause” - Rule 11(c)(2)
                                        o Rule 11 (c) allows for the court the impose sanctions sua sponte (on its own) if they can show facts that prove the
                                              lawyer acted unethically.
                                                   o Rule 11 applies to all filing except discovery.
                                        o Sanctions are discretionary under Rule 11, they do not have to be imposed by the court - was not always that way,
                                              sanctions used to be strict and mandatory
                                        o PP of Rule 11: because we have a notice pleading system, Rule 11 is instated to make sure those claims are based
                                              on a reasonable amount of evidence that they are sufficient claims
Legal profession
         Rules of professional conduct (ABA and State)
         State bar decisions
         Malpractice law (case law)
FRCP
         Rule 11: papers
                    (a) Every pleading, written motion, and other paper must be signed
                    (b) By presenting to the court a pleading, written motion, or other paper — whether by signing, filing, submitting, or later advocating it
                    (d) discovery paper excluded
               o Only on pleadings, written motions, other non-discovery papers presented to the court.
         Rule 37: Discovery
FRCP 11wrap up (10/4 read #12-13, distribute practice exam) (10/11 #14-15 practice exam due)
Limits on scope and conduct prohibited




Walker v. Norwest
         The lawyer filed a lawsuit in federal court claiming diversity while not knowing all citizenships of Ds. You must have complete diversity in the
          complaint.
         Norwest sent the plaintiff’s lawyer notice of this, but was ignored and passed 21 days.
         This is a 11(b)(2) not understanding what is warranted by law.
         Need to serve the opponent with the actual motion, and wait 21 days (safe harbor) according to 11(c) before you file motion with the court.
         Rule 11(c)(5) says if you are represented, don’t have to pay, but the council does.
         Rule 11(c)(5), a court can not impose monetary fee to Walker to pay D’s attorney fee because Walker is represented.
         Motion for sanction must be filed separately from other papers. But can file separate papers and seek hearing, if 21 days has passed.
         Under 11(c)(3), a court can on its own initiative “order to show cause (OSC)” against a party for a sanction under Rule 11


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Christian v. Mattel, Inc.
         Interrupt deposition
         Failure to reasonably investigate and check the doll’s marking
         Verbal abuse to client
         Violation all over the place, but the district court failed to follow 11(d) which exclude everything in discovery. Remanded to parse out exact
          monetary under 11(c)(6) “An order imposing a sanction must describe the sanctioned conduct and explain the basis for the sanction”
Procedure and sanctions
         11(c)(4): what suffices to deter repetition of the conduct
               o Nonmonetary directives (such as some training)
               o Order to pay a penalty into court
               o Payment to the movant
         11(c)(5): no monetary sanctions
               o Against party for violation of 11(b)(2)
               o Sua sponte unless OSC is issued before settlement




               o
                                                             RETURN TO PLEADING-SPECIFIC RULES
Response options
        Rule 7(a)(1): complaint; Rule 7(a)(2): answer
        Rule 7(a)(3)-(7): complex actions (next semester)
        See presentation, square: pleading, circle: motion; bold: non-waivable; number: time constrain
        14 days to file an answer if rule 12 motion is denied
                             PP of Rule 11:
                                       We operate with a notice pleading system
                                             o So little is required by Rule 8(a) that Rule 11 helps control or limit the abuse that would certainly take place
                                                  (i.e. with processes like discovery)
                                       Pleadings are not used to screen out claims in current system
                                             o Rule 11 helps deter frivolous claims that have no merit by punishing those that abuse the notice pleading
                                                  system




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   Rule 12(c) is motion to rule on pleading
   No need to respond after affirmative defense
             Once served with process, the D must respond in some way
                   o Three options for D
                                  File an Answer – in which D responds to the specific allegations contained in the complaint
                                  File one of several motions – raising various legal defenses that highlight legal defects in the P‘s action rather than
                                   addressing the merits of the P‘s allegations
                                  Do nothing – results in default judgment for the P
   Rule 12 Responses
              o Procedural Aspects of Filing Motions under Rule 12
                         The rule sets forth procedures for raising the motions mentioned in the rule
                                   o Each can be made in a motion or within the answer itself
                                   o But certain motions are waivable, if they are not raised in the initial response then they are waived and cannot be
                                        raised subsequently
              o Time to Serve a Responsive pleading: Rule 12(a)(1)
                         After being served with process: D has 21 days to respond
                         If service waived: D has 60 days to respond (90 days if outside the US)
                         If a motion is filed: P has 14 days to respond
              o Pre-Answer Motions (waived permanently if not in included in the answer to the complaint, another responsive pleading or if
                   defense not filed by motion before the responsive pleading)
                         Lack of jurisdiction over subject matter—12(b)(1)
                         Lack of jurisdiction over person—12(b)(2)
                         Improper venue—12(b)(3)
                         Insufficiency of process—12(b)(4)
                                   o Technical defect in content of summons
                                             o Challenge irregularities in contents of summons
                         Insufficiency of service of process—12(b)(5)
                                   o Process not served in compliance with requirements of Rule 4
                                             o Challenge the method of service attempted by plaintiff
              o The Motion to Dismiss for Failure to State a Claim under Rule 12(b)(6)
                         The motion states either
                                   o "you've failed to plead enough detail to satisfy your pleading burden"
                                   o "even if everything you allege in your complaint is true, no legal liability attaches to the D
                         This motion would challenge the sufficiency of the complaint in one (or both) of two ways:
                                   o The motion can allege that the complaint is formally inadequate - meaning that it fails to give the minimum level
                                        of detail required under Rule 8(a)(2) such that the D is not put on notice of the claim being alleged against it
                                   o The motion can allege substantive or legal inadequacy, which means that the allegations in the complaint fail to
                                        say anything that would render the D liable for a violation of the law
                         EEOC v. Concentra Health Services:               P says he was wrongly fired for reporting an in-office affair: P‘s original
                              complaint – not plausible (supervisor getting preferential treatment bc of affair – not illegal, so not plausible); P‘s amended
                              complaint – not sufficient for notice (just contained statutory language) – D files Rule 12(b)(6) motions and the ct dismissed
                              P‘s complaint w/ prejudice (second dismissal, first complaint was dismissed w/o prejudice)
                                   o HOLDING: amount of info needed for a retaliation claim is more than a discrimination claim – type of claim
                                        matters in judging for much notice is needed
                                   o HOLDING: zone of plausibility – area between alleging too many and too few facts for plausibility and notice
              o Other Defenses and Objections under Rule 12
                         Rule 12(c) - Motion for Judgment on Pleadings
                                   o Once all of the pleadings have been submitted (complaint and answer) parties can move for a judgment on those
                                        pleadings
                         Rule 12(e) - Motion for More Definitive Statement
                                   o D can file to get more information than is alleged on the complaint - not favored because of the notice rule in Rule
                                        8(a)(2)
                         Rule 12(f) - Motion to Strike
                                   o Motion is appropriate when a party believes that a pleading contains an insufficient defense or any redundant,
                                        immaterial, impertinent, or scandalous matter
              o Joint Motions: Rule 12(g)
                         Can join motions with any other motions in the rule
              o Waiving and Preserving Certain Defenses: Rule 12(h)
                         12(b)(2) -12(b)(5) are defenses that are waived for good if they are not included in the answer to the complaint, another
                              responsive pleading or filing the defense by motion before the responsive pleading.
                         12(b)(6) is not waived in the same way. It can be raised in any pleading.
                                   o The only way it can be waived is if it is not raised before the end of trial
                                   o It cannot be raised in a second pre-answer motion.
                         12(b)(1) is never waived. This deals with subject jurisdiction.



                                                                           8
                                                                                 ANSWER
          A general denial may be made only when the defendant intends in good faith to deny all of the plaintiff’s allegations. A denial of only part of the
           allegations requires a specific denial of the parts that are denied, and an indication of which parts are true.
                      o Three possible options for D’s is responsive pleading:
                                 1) Admissions and Denials
                                            o Rule 8(b) – D must Admit or Deny all factual allegations
                                 2) Defenses
                                            o Rule 12(b) – D can raise defenses is has not yet waived, or
                                            o Rule 8(c) – D can raise any affirmative defenses
                                 3) Claims
                                            o D can make claims against the P
                      o Three types of responses to factual allegations
                                 1) Admission
                                            o D admits the truth of P‘s allegation
                                 2) Denial
                                            o Rule 8(b)(2-4) – specify how D must deny allegations to be effective
                                                       o May have to admit paragraph is part and deny in part
                                 3) Assert lack of knowledge
                                            o Rule 8(b)(5) – response has the effect of a denial
Zielinski v. Philadelphia Piers, Inc
          D made a general denial without specific details
          Zielinski did not discover that he had sued the wrong company until the pretrial conference. Zielinski moved to estop Philadelphia Piers from
           denying the facts alleged in the complaint because the company had allowed him to believe that they were true.
          A general denial is ineffective if some of the claims denied are true and not at issue. The court held that Philadelphia Piers should have made a
           specific denial of the parts of the complaint it knew to be false and admitted the parts which were true. A specific denial would have warned
           Zielinski of his mistake.
          Zielinski has passed statue of limitation to sue the right company.
          District court held “A defendant who knowingly makes inaccurate statements may be estopped from denying those statements at trial”. Cannot
           raise that defense. Just like dismissal of 12(b) motion
          Rule 8(b)(4), must admit the part that is true
          8b & 10: Denials – specific & general denials
          Facts: accident using forklift, plaintiff files lawsuit against PPI (the forklift was labeled PPI) for negligence of the forklift operator (presumably a PPI
           employee); PPI denies any negligence for the accident during deposition; turns out later (after sol has passed), that PPI didn‘t own the forklift – and
           PPI knew that when they went through the deposition. Had sold their business (prior to the accident) to Carload Construction
          Legal problem: the statute of limitations had run out
          Legal issue: Whether PPI‘s general denial was accurate in a meaningful sense
                 o Technically accurate: PPI was not negligent
                                The D answered all the averments truthfully
                                The plaintiff made the mistake – should have figured out who was the right person to sue
                                           Also: could have been more specific in the complaint (break up the conjunction A+B, i.e. graph 1 would state A; graph
                                            2 would state B)
                 o Meaningfully inaccurate: PPI never explained why they were not inaccurate. Why not?
                                Allen is saying that there is no evidence of motivation for PPI to try to mislead plaintiff
                                They may have thought that the P couldn‘t be that stupid – i.e. not to know who to sue – so they didn‘t give them anything more
                                 than what the P asked for
          Holding: Court held that PPI had to assume agency b/c if they didn‘t, that would create an inequitable situation for the plaintiff
                 o Formal consequence of the decision: Trial goes forward – the system will accept as true what they plainly know to be false
                                Court was more sympathetic to the P than what Allen is
                 o Functional consequence of the decision: The same insurance company will pay either way (PPI & Carload both insured by the same
                      company)
                                That‘s why this case is not as dramatic as it appears to be
          Maybe, the courts are trying to enforce a cooperative rather than an adversarial setting
                 o In a logical conundrum such as this, we have to share the burden of sorting it out
                 o In this case, the defendant followed the rules – that‘s all they did – and this is the consequence of that action (Allen clearly thinks this is an
                      unfair outcome)
                                                                     Answers wrap up: types of denial
          Rule 8(b)
                 o Answer ,must admit or deny allegations 8(b) (1)-(4)
                 o May deny based on lack or knowledge or info 8(b)(5)
                 o If not admitted or denied, allegations deemed admitted 8(b)(6)
                 o Remember Rule 11(b)(4)
                 o Remember need to tell what one reasonably believe the fact is, not what is clear and convincing evidence of one way or another.
          Rule 8(c)
                 o Affirmative defense not the same as admissions and denials, and there is no need to respond to affirmative response.

                                                                                   9
Affirmative Defenses
                           Available in Rule 8(c)(1)
                           D must include affirmative defenses in the complaint in addition to admissions or denials
                                     For example, P could have contributory negligence that bars them from relief, that would be stated with affirmative
                                      defense
                           The failure to plead an affirmative defense usually results in the defense being waived
                                     But D could include later by amended pleading
              o The Answer to a Counterclaim and the Reply: Rule 13
                           When D asserts a claim against the P in affirmative defenses, it is considered a counterclaim and entitles the P to submit further
                            pleading referred to as "an answer to a counterclaim"
                                     In that answer P becomes D and has the same right to answer with admissions and denials
                                     Failure to submit an answer to a counterclaim results in those claims being confessed/admitted
                                     P does not have to file a reply to affirmative defenses
                                                                  AMENDMENT of Pleading
         Know as matter of course v, by leave of court
Rule 15
          (a) Amendments Before Trial.
                     (1) Amending as a Matter of Course. A party may amend its pleading once as a matter of course within:
                                (A) 21 days after serving it, or
                                (B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days
                                after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.
         If the plaintiff seeks to amend the complaint, the plaintiff may do so up to 21 days after the service of the answer or a Rule 12(b), (e) (more definite
          statement) or (f) (motion to strike) motion. If the defendant seeks to amend the answer, the defendant may do so up to 21 days after service of
          the answer (unless the answer contains counterclaims, in which case a reply, another responsive pleading, would be required).
         Typical Scenarios
                o Court grants motions to dismiss with leave to amend
                o Party learn new facts or recognizes oversight (Rule 15)
                               As a matter of course, before responsive pleading or before 21 days if no responsive pleading allowed
                               Otherwise, by consent or leave of court
         If passed 21 days, must ask all defendants in order to amend
                                                          Limitations on amendment: prejudice and Timing
Constraints on amendment—prejudice
         Rule 15(a)(2) under regular, normal situations.
         Three factors to consider: 1. Bad faith, 2. Prejudice, 3. Undue delay
Beeck v. Aquaslide ‘N’ Dive Corp.
         Amendments to pleadings
         Facts: man injured using a water slide, sue manufacturer, ensuing dispute over who manufactured the slide
                o During pleading, the manufacturer admitted making the water slide, but a year later moves to amend the pleading, saying that they did not
                     manufacture the slide
         Rule: Court can exercise its discretion in allowing an admission in a pleading to be changed to a denial
                o Court did so b/c they thought that the P could live to sue another day (ergo, it was OK to dismiss this particular COA)
                               P did – sued manufacturer for ―reckless misrepresentation‖ in pleadings in federal litigation
         P injured, tort claim and sued Aquaslide.
         D checked the slide and it was not there’s after admitting it was theirs in initial pleading. D wanted to amend pleading (answer) but P is outside of
          statue of limitation.
         P contends the motion to amend unfairly damaged their chances at trial, and that the trial court abused its discretion in granting such motion. D
          alleges there was no prejudice to the motion being granted, as it was a fair application of justice as FRCP 15(a) grants in such a situation.
         In all other cases, a party may amend its pleading only with the opposing party’s written consent or the court’s leave. The court should freely give
          leave when justice so requires.




                                                                               10
Constraints on amendment—Relation back
         Triggers when statue of limitation would bar new claim or defense
         Rule 15(c) of the Federal Rules of Civil Procedure governs when an amended pleading “relates back” to the date of a timely filed original pleading
          and is thus itself timely even though it was filed outside an applicable statute of limitations.
         Where an amended pleading changes a party or a party’s name, the Rule requires, among other things, that “the party to be brought in by
          amendment . . . knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party’s
          identity.”
         Relation back under Rule 15(c)(1)(C) depends on what the party to be added knew or should have known, not on the amending party’s knowledge
          or timeliness in seeking to amend the pleading
         Information in the plaintiff’s possession is relevant only if it bears on the defendant’s understanding of whether the plaintiff made a mistake
          regarding the proper party’s identity. For purposes of that inquiry, it would be error to conflate knowledge of a party’s existence with the absence
          of mistake.
         Three elements
                o Statue of limitation allows relations back (15(c)(1)(A)) (do this first to see if relation back is even needed). If not, do 15(a) (2) which look at
                     prejudice and bad faith.
                o New claim or defense arose out of the conduct, transaction, or occurrence set out — or attempted to be set out — in the original
                     pleading (15(c)(1)(B))
                o New party or name received notice of original proceeding, knew omission in original pleading was mistake, and CTO (conduct, transaction,
                     occurrence) test is satisfied. (15(c)(1)(C)) (look at if D, not P, knew there was a mistake; not look at P at all)
Moore v. Baker
         Initial complaint relates to “inform consent” and failure to offer alternative therapy
         Later want to change to negligence of doctor, but already passed discovery, entered summary judgment stage and passed statue of limitation. D
          move to dismiss amendment
         Unable to relate back, not the same conduct, transaction or occurrence
A. 15c: relating back to amendments -- allows for amendments to pleadings that relate back to an original pleading
                a. The cases in Moore & Bonerb deal with the question of what ―relates back‖?
B. Facts: A patient who was disabled after an operation sued the doctor for violation of the informed consent law & later tried to amend her complaints to
    include charges of negligence
C. Court decides that the amended complaint does not relate back to the original COA and, therefore, the P cannot amend
                a. Question to ask: Whether the original complaint gave the D sufficient notice of the claim that the P is now asserting?
                b. In this case, the court said no – wacko decision, especially relative to Bonerb
                c. In the Moore case, everyone was on notice – there was a surgery that was in dispute – this was the event that everyone knew caused the
                     problem
Bonerb v. Richard J. Caron Foundation
         Originally claimed personal injury that the basketball court was not properly maintained; now want to change to counseling malpractice.
         Although different legal theory, can still relate back. Look at if allegation originally also support the later one,
         Allowed amendment, since arose out of the same conduct.
         Two situations in which party would want to amend the complaint/answer:
             o The need to remedy an inadvertent omission or mistake, or
             o The desire to add, alter, or remove claims or defenses in light of new information
         Basic Standards for Amending
               o Rule 15(a) – basic standards for amendments before trial
               o P can amend before D‘s responsive pleading -- or if a responsive pleading is not allowed, within 20 days if not on trial calendar
                             Beeck v. Aquaslide „N‟ Dive Corp:                D was allowed to amend their pleading and deny that they were the manufacturers
                              of the slide that injured P after the SOL had passed. (P can still use equitable estoppel against correct D since SOL has passed)
                                         HOLDING: Ct was right in allowing D to amend under Rule 15(a)(2) because justice so required the ct to not hold D
                                          responsible if they did not make the slide.
                                         REASON: If you admit something, you cannot present evidence on it at trial, only the joined facts (alleged by one party
                                          and denied by another)
               o Liberal standard for granting amendments under Rule 15(a):
                             Parties will usually be able to amend unless there is evidence of resulting unfair prejudice to the other party or evidence of bad
                              faith
                             PP: this is important that the standard be liberal so the pleadings conform to reality after a mistake has been made
                             Pleadings that can be amended are the ones listed in Rule 7(a)
         Relation Back
               o Amending pleadings before SOL:
                             if there is no responsive pleadings – no problem
               o Amending pleadings after SOL:
                             you can amend parts of the complaint that have to do with/arose out of the same ‗conduct, transaction, or occurrence‘ through
                              Relation Back (only an issue of SOL runs)
                             PP: concept of repose: SOL exists so D can go on with their life after an occurrence happens in which they might incur liability
               o Rule 15(b) – amending pleadings during trial if evidence presented brings in new issue, need court‘s permission
               o Rule 15(c)(1)(B) meant to follow the same claim

                                                                                11
                           PP: a party can amend on the same occurrence because D had proper notice of the claim and allegations related to it being
                            brought in some capacity before the SOL ran
              o    ―Mistake‖ in Rule 15(c)(1)(C)(ii) means an affirmative misapprehension about the identity of the proper D rather than ignorance of the D‘s
                   identity
                           Worthington v. Wilson:              P was arrested and ruffed up by police after he pushed one, P sued the Village of Peoria Heights
                            and three unnamed police officers to the day of the SOL. P filed amended complaint against two named officers: D Wilson and
                            Wall and Ds claimed P could not relate back
                                      HOLDING: ct agreed w Ds that they did not have notice before the SOL because they were unnamed and renaming
                                       ―fictitious parties‖ does not constitute a ―mistake‖ under Rule 15(c), P did not try to correct a mistake but tried to
                                       correct a lack of knowledge
                                      PP: although Rule 15(c)(1)(C)(ii) reads that relation back can be due to ―mistake‖ this must be from misnaming the
                                       party, not lack of information of the party – otherwise people could just name unknown parties
              o    120 Days Rule: Complaint has to be filed by SOL, but notice can be given within 120 after filing the complaint – so potential Ds cannot
                   assume they are off the hook until 120 days after SOL
                                                                           DISCOVERY
1. General Notes
A. Discovery: An Introduction
        Happens after the complaint survives dilatory pleas, before trial
        Scope of discovery in the U.S. legal system is quite vast
        Discovery ends lawsuits for 2 reasons (one good, one bad):
              o Good reason: allows people to discover more information about the merits of their case
                            Leads people to strengthen their positions or to settle or to summary judgments
              o Bad reason: costs time & money
                            Particularly true in large, corporate litigations in which both parties can afford to bury each other in paperwork
        Overriding theme of discovery: parties are expected to handle these affairs on their own
        Timeline
              o When D receives service, timeline for discovery begins
                            Rule 16(b)(2) – a scheduling order must be issued by the judge within 120 days after service, or 90 days after D has entered and
                             appearance
                                       Purpose is to expedite the case and set deadlines for discovery, trial, etc
                            Rule 26(f)(1) – by day 99, parties must confer (21 days before scheduling conference or order)
                            Rule 26(f)(2) – by day 113, parties are responsible for submitting a discovery plan to the court 14 days after conferring
                            Rule 26(a)(1)(C) – parties must submit their initial disclosures 14 days after the Rule 26(f) conference (without agreement
                             otherwise)
        Discovery Devices
              o Included in discovery:
                            Information from PARTIES
                                       Interrogatories can be served
                                       Request to admit can be served
                                       Medical exams can be requested (non party only if ―under the control of the party‖—i.e. child)
                                       Request for production can be requested
                                       Depositions can be done
                            Information from NON-PARTIES
                                       No interrogatories
                                       No requests to admit
                                       No medical exams
                                       Request for production can be requested (subject to Rule 45)
                                       Depositions can be requested (subject to Rule 45—need subpoena)
              o Scope of Discovery
                            Initial Disclosures
                            Interrogatories
                            Request for Admissions
                            Request for Production
                            Request for Medical Exam
                            Depositions
              o Required Disclosures – Rule 26(a)(1)
                            Specific information that must be automatically disclosed without discovery request
                                       Information about people that might have knowledge of the case.
                                       Copy of documents that might be used in case.
                                       A copy of each category of damages that will be claimed.
                                       A notice of any insurance agreement.
                                             o PP: info will come out in cases anyway so the automatic disclosures speed up the process, also used to deter
                                                   frivolous lawsuits and to encourage settlement.
              o Interrogatories – Rule 33
                            Interrogatories only allowed for parties
                                                                              12
                            Rule 33(a) – written questions that a party must respond to under oath, limited to 25 questions (unless court grants permission)
                            Rule 33(b) – must respond in 30 days, party may respond with an objection
                            Interrogatories can be very costly and time consuming
                                       Responding party can object based on:
                                             o Privilege
                                             o Relevance
                                             o Undue burden
                                       Rule 33(d)
                                             o If undue burden, responding party can produce business records or ESI and allow requesting party to
                                                  examine, audit, or inspect if it will take approximately the same time for either party
                                             o Responding party must locate and identify the records from which the answers can be obtained as much as
                                                  possible
              o Request for Admissions – Rule 36
                            Asks another party to admit something – can only be served on parties
                                       Can cover facts, the application of law to facts, or opinions about either, and, the genuineness of any described
                                        documents. Rule 36(a)(1)(A-B)
                                       Party can object, admit or not respond (effecting admission)
              o Request for Production – Rule 34
                            Used to request documents, ESI, or tangible things that fall within the scope of Rule 26(b) from parties
                                       Party can object, or produce
                                       ESI issues
                                             o Whether metadata can be produced (data about data)
                                             o What form ESI should have to be produced in
                                                            Agreements about form can be worked into court‘s scheduling order under Rule 16(b)
                                                            No agreement? Turn to default rule: Rule 34(b)(2)(E)(ii)
              o Request for Medical Exam – Rule 35
                            Medical exams always involve a court order
                                       Requirements for granting order:
                                             o Person must be a party (or in party‘s control, i.e. children)
                                             o Party‘s mental or physical condition has to be in controversy
                                             o Party seeking exam must demonstrate good cause
              o Depositions – Rule 30
                            Parties and non-parties can be deposed
                                       Need subpoena under Rule 45 for non-parties
                                       Court can order depositions under many circumstances
B. Three ways to obtain information:
        Interrogatory: a list of questions to answer (Rule 33)
              o Advantages: Cheaper
              o Disadvantages:
                            Other party can provide evasive answers
                            You need the permission of the court to ask more than 25 questions
                            You can only send interrogatories to parties in the action, not other witnesses
        Deposition: oral examination (Rule 28, 30, 31, 32)
              o Advantages:
                            You can get full-blown answers (it‘s like having them under oath)
              o Disadvantages:
                            Cost
                            Limitations:
                                       Each side can only depose up to 10 people; after that they need the court‘s permission
                                       You can‘t depose a person a 2nd time w/o the court‘s permission
        Written questions (Rule 31)
              o Rarely used
              o Not particularly useful
                            You give a list of your questions to a court recorder who will be present at a deposition
                            They ask the questions & record the answer
                            Not that helpful, since you don‘t really know how you should frame the follow-up questions
C. What are the values behind our discovery system?
        Attempting to minimize the cost of disputing (get it to the most productive outcome)
        Who‘s in the best position to make that decision (the decision as to when the costs of discovery exceed the benefits of proceeding with litigation)?
              o The parties themselves – this is a market-based approach: it‘s your choice to sue whoever you want to sue
              o Some game theory involved – prisoner‘s dilemma – you don‘t know what the other side is doing
                            Discovery is the solution to the prisoner‘s dilemma
                            Theoretically, you should know what the other side knows
                            Psychology messes up the neatness of this logical argument (different parties will look at the evidence in different ways and be
                             more optimistic about their prospects than what they should be)

                                                                              13
                                       Solution: lawyers! They‘re generally more rational & in a better position to decide what the case is worth (in a better
                                        position to determine DWL)
        Substantial exchange of information
        With little court involvement or use of court resources
        You have some time to think about
        You meet to discuss discovery procedures
        The real objective here: to encourage settlement
D. Disclosures regarding insurance (26a):
        You can‘t compel disclosure of someone‘s personal finances – not relevant at this stage (although they can be disclosed later in determining punitive
         damage awards)
        Why can you compel disclosure insurance liability then?
              o Existence of insurance increases the possibility of settlement (fits in with the notion that we want to increase efficiency of the system)
    I.        DISCOVERY
                    Rule 26(b)(1) allows for the discovery of most information that is relevant and not privileged.
              a. 26(b)(1): Relevance: Information is relevant as long as it may help a party prepare its case. It does not have to be evidence that the party
                    uses at trial.
                           i. Relevance to a party’s claim: Discovery must be relevant to a claim or defense of any party.
                          ii. Need not be admissible at trial: As long as it is reasonably calculated to lead to the discovery of admissible evidence.
                                   1. Background information
                                   2. Information that is insufficient evidence: hearsay evidence, etc.
                                   3. Financial information: A plaintiff may want information about the defendant’s financial position to decide whether its
                                        worthwhile to seek a money judgment against them. Such information is generally not discoverable because it is
                                        irrelevant to whether the plaintiff is entitled to a judgment. Exceptions:
                                              a. Punitive damages: Need to know the defendant’s net worth so as to determine an amount which would
                                                   “punish” them
                                              b. Insurance: In the initial mandatory disclosures, a party must disclose to the other side any liability insurance
                                                   coverage that may cover the claim being litigated. FRCP 26(a)(1)(D)




Discovery is aimed to simplify issues and provide information
               o 1. Produce info about the merits of the lawsuit and permits parties to make informed judgments about the strength of each side
               o 2. Wear one or both sides down due to cost without regard to the merit of the case.
        Not all information are discoverable. If not, can ask court for help.
        Graph on facts/evidence




                                                                               14
        General scope of discovery (FRCP 26(b))
              o Automatic: relevant to claim or defense
              o For good cause: relevant to subject matter (claim for defense)
              o Plus
                            Non-privileged
                            Not unduly burdensome
              o Vocabulary
                            Evidence-info in a form that a party can use in a trail or pre-trail that can be used as a fact.
                            Feed back into responsibilities of the parties (burdens)
                                                                    Relevance of Discovery
        Information tends to prove or disprove something that governing substantive law says matters
        Rule 26(b)(1) allows the parties without court approval, to seek discovery “regarding any non-privileged matter that is relevant to any party’s claim
         or defense.”
E. Relevance and Privilege
    1. Rule 26(b)(1): Gives parties the right to discover ―any matter, not privileged, which is relevant to the subject matter involved in the pending action‖
    2. Yeazell‘s approach:
              a. Relevance (Yeazell)
                          i. To be discoverable, information must be relevant
                         ii. For our purposes, discoverable means that the information will tend to prove or disprove something that matters according to the
                             applicable substantive law
                        iii. Relationship between substantive law, relevance and discoverability
              b. Privilege
                          i. Typically block information from a particular source – not the information itself (which may, in fact, be highly relevant)
                         ii. Typical privileges: Self-incrimination, spousal, attorney-client
                        iii. Once privilege is waived, you can‘t reinstate it

F. Substantive evidence vs. impeachment evidence
          Substantive: evidence that goes to the material propositions, determined by substantive law
          Impeachment evidence: who is lying & who is telling the truth
               o Obviously connected to the substantive material
               o But also deals more with issues of credibility – reasons outside the substance that may bolster or discredit (or ―impeach‖) the witness
               o Not required to disclose impeachment evidence – at least not in the disclosure phase
                              Impeachment evidence is admissible evidence, you just aren‘t required to disclose it right off the bat
Davis v. Precoat Metals (N.D. Ill. 2001)
               o Compliant in “other employees against the employees” D
               o Court held that motion to compel
               o All other patient info are relevant since this is a discrimination suit.
Steffan v. Chenyay (D.C. Cir 1990)
               o P’s case was dismissed due to non-cooperation of discovery order based
               o P failed to answer deposition during discovery, if he engaged homosexual conducts.
               o Rule 37-sanction during discovery
               o Circuit court reversed and agreed with P that his conduct was not relevant. Dismiss was based on regulation of being homosexual, not on
                     the actual homosexual conduct.
                                                                              15
                                                               Sequence of Discovery—Initial Disclosures
Timeline for Discovery
         Defendant is served or appears in lawsuit
         Court sets scheduling conference date within 90 days after defendant’s appearance or 120 days after service
         At least 21 days before scheduling conference, parties hold Rule 26(f) planning conference
               o Parties must meet by themselves prior to the court conference to discuss timeline
               o Parties must also submit report to court re: same
         At planning conference or 14 days after it, parties exchange Rule 26(a)(1) initial disclosures
         After scheduling conference, parties may serve discovery requests (Rule 26(d)) for additional disclosures
         Parties typically start with interrogatories and document requests and then, after reviewing interrogatory answer and documents, parties set
          depositions and request exams
         Typically parties request admissions 30 days before discovery ends
               o Each party has more information regarding defenses
               o They’ve narrowed the issues disputed
               o Admissions do that same thing as admitting in answer, but after discovery
         Typically summary judgment deadline 30 days after discovery ends
               o Trying to end case all in written form
Main Goals of Discovery
    1) Trying to determine more facts
    2) Trying to prepare case for trial
    3) Getting evidence in written form to either win or defeat a MSJ, depending on who files the MSJ; MSJ decreases number of surprises at trial (if case
          proceeds to trial)
               b. Procedure and Methods: (See Timeline for Discovery)
                             i. 26(f) - Discovery conference: Requires the parties to meet as soon as practicable to discuss the claims and defenses that have
                                been filed and whether there is any possibility of settlement. If no settlement is reached, the parties prepare a “discovery plan”.
                                      1. Discovery Plan: A party cannot engage in formal discovery until after the discovery conference. [FRCP 26(d) – p. 76]
                            ii. 26(a)(1): Initial Disclosures: Shortly after the discovery conference, the parties make the initial mandatory disclosures provided
                                for in this rule.
                          iii. Rule 26(a)(1) requires each party to disclose:
                                      1. (A) Names of witnesses may use to support claims/defenses. Any individual likely to have discoverable information
                                            that the disclosing party may use, unless solely for impeachment.
                                      2. (B) Describe documents may use to support claims/defenses
                                      3. (C) Calculation of damages
                                      4. (D) Copies of insurance policies
                                                  a. Initial disclosures must be made within 14 days of the discovery conference.
                                                  b. 26(a)(1): A party must only disclose items they may use to support their claim or defense, unless these
                                                       items will be used solely for impeachment.
                           iv. 26(a)(2) and (3) Pretrial Disclosures –Requires the parties to disclose additional information as the date for the trial draws
                                near.
                                      1. 26(a)(2)(B): Expert testimony: identity and the signed report showing the opinions the expert will give and the
                                            grounds for those opinions.
                                                  a. An expert is one who is retained or specifically employed to provide expert testimony in the case OR whose
                                                       duties as an employee of the party regularly involve giving expert testimony.
                                      2. 26(a)(3): Lay witnesses
                                      3. 26(a)(3): Tangible evidence
                                      4. 26(a)(2)(C): Timing: These disclosures must be made at least 30 days before trial in the case of lay witnesses and
                                            tangible evidence, and 90 days in the case of experts.
                            v. 26(e) Duty to supplement: Duty to supplement original disclosures if new information comes up.
                           vi. Methods of Obtaining Information
                                      1. Rule 26(d) provides that discovery cannot commence until after the discovery conference.
                                      2. A party can use whatever method they deem effective except for the physical or mental exam, which is only available
                                            if the information cannot be obtained by alternate means.
                                      3. Discovery can be informal, and many times it is.
                          vii. 26(b)(2)(B) Electronic information: A party need not provide discovery of electronically stored information from sources that
                                are not reasonably accessible because of undue burden or cost. On motion to compel discovery or a protective order, the party
                                has to show the information is not reasonably accessible because of undue cost. The court still has the option of requiring
                                discovery if the asking party has good cause.

                                                                                16
1.   Start with FRCP 26(f) conference,
2.   Then 26(a)(1) disclosures which should be automatic and need not ask for them
              Information about people that might have knowledge of the case. The disclosing party may use to support its claims or defenses. (as
               long as you might use it, you need to disclose)
              Copy of documents that might be used in case.
              A copy of each category of damages that will be claimed.
              A notice of any insurance agreement.
3.    This shapes later phases such as Rogs, RFPs, RFAs and Depos.
                      i. Limitations on Discovery:
                              1. The court may limit the number of interrogatories given in rule 30. (FRCP 26(2)(b))
                              2. A party does not need to provide discovery of electronically stored information if there is an undue burden of cost.
                                   The party must, however, show that they cannot give the electronic information because of the extra costs. The court
                                   may still, however, impose the parties’ discovery request. (FRCP 26(2)(4))
                              3. The frequency or extent of discovery methods otherwise permitted under these rules and by any local rules shall be
                                   limited by the court if it determines that
                                         a. The discovery sought is unreasonably cumulative or duplicative
                                         b. The party has already had ample time for discover
                                         c. The burden of expense of discovery outweighs the benefit.

                    ii.  26(c): Protective Orders
                   iii.  Upon motion from a party or for the person on which discovery is sought WITH a certificate saying that the party wanting a
                         protective order has attempted to confer with the other party before resulting to a court order, the party/person may ask for a
                         protective order to avoid embarrassment, annoyance, oppression, of undue burden of expense, including one of more of the
                         following:
                               4. Disclosure or discovery not be had
                               5. Disclosure or discovery may be had only at a specific time and location and about specific material
                               6. The method of discovery be had in another method then that being asked by the opposing party
                               7. The scope of discovery be limited
                               8. Discover be conducted by no one unless a person designated by the court
                               9. The deposition, after being sealed, only be opened by the order of the court
                               10. A trade secret, or other confidential research, development, or commercial information not be revealed or be
                                   revealed only in a designated way
                               11. Parties simultaneously file specific documents that are sealed and are opened as directed by the court.
                                                                 Types of Discoveries
1.   Interrogatories (rogs) (FRCP 33)
          a. Can be third party
          b. 25 at a time, unless approved by a court.
2.   Request for production (RFPs) (FRCP 34, 45)
          a. Usually comes early
3.   Requests for admission (RFAs) (FRCP 36)
          a. Can only be used for this case only
4.   Depositions (depos) (FRCP 30, 45)
          a. Can be third party
          b. Expensive




                                                                        17
2 45a(1) A(iii) subpoena
3yes, embarrassment, undue burden (26C) protective order
p.431 Admissions
3a Yes, but only if it give some detail enable the part to locate the needed info
3b point that out to the court and raise motion to compel evasive is treated as non-answered
4a No, does not have to admit, but has to deny or deny as insufficient info and cannot later raise a different position if denied.
4b No, can only be used for that court only

         11. Ensuring Compliance – FRCP 26(g)
                        a. Signature certifies that to the best of knowledge, information, and belief formed after a reasonable inquiry:
                             i.   Disclosure is complete and correct as of time it is made; and
                             ii. Discovery request, response, or objection is:
                                  a. Consistent with these rules and warranted by existing law …;
                                  b. Not interposed for any improper purpose …; and
                                  c. Neither unreasonable nor unduly burdensome or expensive, considering the needs of the case, prior discovery, the
                                        amount in controversy, and the importance of the issues at stake in the action
                        c. “If a certification violates this rule without substantial justification, the court, on motion or on its own, must impose an
                             appropriate sanction on the signer, the party on whose behalf the signer was acting, or both. The sanction may include an
                             order to pay the reasonable expenses, including attorney’s fees, caused by the violation.”
                   12. Ensuring Compliance – FRCP 37
                        a. Rule 37(a) – Motions to compel
                             i.   Confer in good faith prerequisite
                             ii. Must impose expenses/fees incurred in making motion unless . . .
                        b. Rule 37(b) – Fail to comply with order
                             i.   Prior order prerequisite
                             ii. Variety of severe sanctions possible in addition to expenses/fees
                        c. Rule 37(c) – Fail to disclose/supplement/admit
                             i.   Fail to disclose/supplement = not allowed to use info unless failure substantially justified or harmless. In addition or
                                  instead, court may impose variety of sanctions.
                             ii. Fail to admit and later proven genuine/true, may move for expenses in making that proof and court must order unless A,
                                  B, C or D apply.
                        d. Rule 37(d) – Fail depo/respond to 33 or 34
                             i.   Confer in good faith prerequisite
                             ii. Objection no excuse unless protective order filed
                             iii. Variety of sanctions/fees
                        e. Rule 37(e) – Fail to provide electronic info
                             i.   “Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide
                                  electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.”
                        f. Rule 37(d) – Fail to join in 26(f)
                             i.   Fail to participate in good faith in developing and submitting a proposed discovery plan
                             ii. court may impose expenses/fees
                                                                            PRIVILEGE
G. Three sources of confidentiality:
        Ethical limitations on lawyers (imposed on you by the bar)
              o You have to keep the business affairs of your client confidential
              o It‘s broad – these limitations pretty much cover everything
              o But it‘s also the least important source of confidentiality – it‘s the first that the courts can get by means of discovery via a court order
                            This material is not protected unless also protected by the attorney-client privilege or work-product privilege
        Attorney-client privilege
              o Development of the attorney-client privilege:
              o Rule 501 of the Federal Rules of Evidence
              o Privileges ought to be justified on a utilitarian view – this is the standard view
                            Others say that they‘re justified based on the right to privacy (Allen, not surprisingly, doesn‘t seem to buy into this)
              o Is the cost worth the benefit?
                            The marital privilege: the benefit of fostering intimate relationships is worth more than the cost of the loss of legitimate &
                             probative information in trial
                            Medical privileges: you don‘t want to discourage people from getting medical attention (Allen doesn‘t think this makes sense – if
                             you have a gunshot wound, you‘re going to get help regardless – although he concedes that this makes sense with regards to
                             psychotherapists)
              o According to the FRCP, ―there are no rules of privileges‖ – no formal law of privilege
                            Rule 501 calls for privileges be developed through common law
                            Under common law, the basic privileges have emerged
              o What is the attorney-client privilege?
                            Communication between client and attorney
                                                                               18
                               Maximizes the client’s incentive to reveal information
                               You have to have a relationship (you can‘t ask a lawyer on the street)
                               You have to maintain confidentiality (you can‘t say something in front of your lawyer + four other people)
                               You have to be seeking legal advice
               o The courts are hostile to attorney-client privilege – they feel that they hide valuable information
                               They argue that people would go to an attorney regardless of whether an a-c privilege existed
                               The client, in a civil case, would have to turn the information over anyway through discovery
                               What‘s the benefit? (Allen says the courts are wrong)
                                         If this were a world of charge & denial, then a-c privilege wouldn‘t make sense
                                                o You didn‘t, no, I didn‘t– positive & negative information
                                         Instead, we operate in a world of contingencies
                                                o You didn‘t, yes I did, but only because you did something else
                                                o Every time you take a charge & denial situation & make it a contingency situation, you‘re litigating the right
                                                      issue
               o Upjohn v. United States
                               Held that attorney-client privilege extended beyond the ―control group‖ of a corporation‘s management
                               What‘s the problem with this ruling?
                               It only works in cases when the client is clear (the mule kicked Billy in the head)
                                         But in corporations, there‘s a separation of ownership and control
                                         Ownership = shareholders
                                         But who has control?
                                                o CEOs functionally control, but formally corporations are controlled by a board of directors
                               Question poses by Upjohn: What happens when you take the simplistic notion under common law – who is the client? The
                                answer is pretty straightforward – to modern-day corporate reality
                               Corporate superiors directing the lawyers regarding the scope of their investigation
                                         In that context, employees are communicating with the attorneys and privileged
                                         But you can‘t send everything through your corporation‘s attorney as a way to keep everything privileged
                                         Adversity in the relationship between corporate counsel (both in-house & outside firms) & employees
         Work-product privilege (WP)
               o Rule 26b3
               o Hickman v. Taylor
               o Work product: lawyer‘s materials produced in anticipation of litigation
                               Vs. A-C privilege which always exists so long as you are seeking legal advice
                               WP works off the attorney’s incentive – gives them a reason to go out & collect information
               o What justifies this?
                               Not protecting creativity & opinions – Allen says this is not important because any lawyer can figure out a case (most work-
                                product is mundane)
                                         This is not copyright law!
                               But we want to give attorneys an incentive to figure out a case
                               We don‘t want one side bearing the burden of preparing the case
                                         Without WP privilege, race to the bottom would result
                                         You‘re trying to optimize your investment in the investigatio
                                                o Some duplication will result
                                                o Without that duplication, though, neither side will be preparing
Matter s discoverable if it is:
         Relevant (26b1)
         Non-privilege (26b1)
         Not unduly burdensome (26b2c)




                                                                               19
Scope of discoverable matter: privilege. (FRCP 26(b)(1))
        What does privilege protect?
               o “Matter” not information
               o Communication, not content
               o Access to fact x, not fact x
        Types of privilege
               o Against self-incrimination
               o Doctor-patient, priest-penitent, marital
               o Attorney-client
        Privilege v. protection
               o Only way to get rid of privilege is if it is waived.
               o Protection example: Attorney work product




               A.   Privilege and Work Product
                    1. Privilege – FRCP 26(b)(1)
                          a. Parties may obtain discover regarding any non-privileged matter that is relevant.
                                                                                       th
                          b. Examples: attorney-client, doctor-patient, spousal, 5 Amendment against self-incrimination.
                          c. Privilege can be waived by person whom it belongs (patient/client)
                          d. Privilege protects disclosure only from that source; can seek information from non-privileged sources (i.e. How fast were you
                              driving? (not privilege) vs. How fast did you tell your attorney you were driving ? (privilege))
                          e. Must claim privilege expressly and describe nature of communication not disclosed. Rule 26(b)(5): Object and briefly describe
                              the matter. (i.e. objection, letter dated 9/29/08, from client to attorney)
                          f. Attorney-Client Privilege:
                              i.    where legal advice of any kind is sought
                              ii. from a professional legal advisor
                              iii. the communication relates to the purpose
                              iv. made in confidence w/out presence of others
                              v. by person who is or sought to become client
                              vi. not for purpose of committing a crime or tort (i.e. attorney cannot give advice
                                    for future acts)
                              vii. Privilege has to be claimed and not waived
                                    a. bar to discovery no matter how compelling the need
                                    b. information not privileged – only the communication
                          g. Upjohn Test
                              i.    Information is needed to supply basis of legal advice
                              ii. Communication concerns matters within the scope of the employee’s corporate duties
                              iii. Employees know that they are being questioned so company can obtain legal advice.
                              iv. Employees understand that the communications are confidential
                              v. Upjohn: Is federal attorney-client privilege test. It is not a state test.
                              vi. Counsel represents corporation not lower level employees. Lower level employees have right to their own counsel. It
                                    needs to be clear that counsel is talking to them to obtain legal advice for corporation and that they are not their attorney.
                              viii. Client’s privilege to waive (in this case the corporation is the client, therefore they can turn over employee info if they
                                          want)
                              ix. Waiver is the only way privilege is overcome. There are no other exceptions that can take Privilege out.
                              x. Does not matter if counsel is in house or not

         PRIVILEGE AND WORK PRODUCT PROTECTION
                 o Privilege – Rule 26(b)(1)
                         Atty-Client Privilege

                                                                               20
                                        o     PP: protected because people and cts value the free exchange of communication in this relationship above what
                                              info disclosing could bring to the court – attys need client to be completely candid
                                        o Client must be communicating for the purpose of securing legal advice without presence of strangers and have
                                              not waived the right to the privilege
                              Privilege Waiver
                                        o If a waiver of privilege is given, then the info can be produced to third parties - and all matter relating to the
                                              subject can be produced
                   o Work-Product Doctrine – Rule 26(b)(3)
                              Privilege that protects materials prepared in anticipation of litigation from being disclosed to a certain extent
                                        o Protected by FRCP in 1970
                              Asserting Privilege and Work-Product Protection
                                        o Although these things are protected, parties are required to indicate the material they are using this protection to
                                              protect in a privilege log - to allow other parties to assess the claim without disclosing the information
                              The Meaning of "In Anticipation of Litigation"
                                        o Two interpretations of the phrase by courts:
                                                   o Majority say documents can be protected if it was prepared because of litigation
                                                   o Minority say the documents are only protected if they are primarily or exclusively for litigation
                              Hickman v. Taylor:            tug boat accident, 5 of the 9 crew members died, atty for D interviewed the survivors apart from the
                                   public hearings about the crash, and after litigation ensued, P tried to obtain the atty‘s work regarding the statements he
                                   obtained from the survivors.
                                        o ISSUE: Whether attorneys are required to provide information to a requesting party detailing ―mental impressions,
                                              conclusions, opinions, or legal theories‖ derived from private conversations he or she has had with third parties?
                                        o HOLDING: No. The requesting party has the same opportunity to question third party witnesses themselves and
                                              will have to assess that information and use their own knowledge when it comes to that.
                                                   o PP: Adversarialism -- allowing all information to be sent to other party discourages incentive for
                                                         attorney‘s to work hard and develop their own information, theories, etc.
                                        o EXCEPTION: the party seeking discovery shows that there is a “substantial need” for the materials prepared
                                              and that without them they will be unable to obtain same information without undue hardship.
                              The Meaning of "Substantial Need"
                                        o To overcome work product protection the party must show 'substantial need' for the info – such as they cannot
                                              obtain the information by any other means and they would otherwise be allowed to obtain it
                              In General:
                                        o To protect material under the Work Product Doctrine:
                                                   o Must be a document or tangible thing (mental impressions are always protected)
                                                   o Must be prepared in anticipation of litigation
                                                   o Must be created by a lawyer or other representative of the party
                                        o Opposing parties can lift the protection if:
                                                   o They have a substantial need for the material, or
                                                   o It is impossible without undue hardship to obtain the same materials or crucial evidence
                   o Experts and Trial Preparation
                              Rule 26(a)(2) requires that parties disclose all experts and that they prepare a report detailing their expected testimony, the
                                   basis for their opinions, qualifications, and level of compensation
                                        o This information can be shared with the third party/opposing party and their depo can be taken
Upjohn Co. v. United States
                  Corporate Client. SC says purpose of P is to have free and frank communications.
                  IRS wanted the questioners that the general counsel sent to the local offices’ managers on if they sent money to government officials.
                   Treated as “request for production” in discovery actions.
                  Magistrate judge originally determined that the privilege not apply since the communications were waived
                     th
                  6 circuit said non-control group, failed control group test. This test only applies to the people who top people, but action within your
                   job would still be important factor of A-C P.
                  Supreme Court reversed control group test is not applicable.
                                                             Work-Product Protection – FRCP 26(b)(3)
                        a. Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by
                             or for another party or its representative (including the other party’s attorney, consultant, surety, indemnitor, insurer, or
                             agent). But, subject to Rule 26(b)(4), those materials may be discovered if:
                             i.    they are otherwise discoverable under Rule 26(b)(1); and
                             ii. the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship,
                                   obtain their substantial equivalent by other means.” 26(b)(3)(A)(ii)
                        b. “If the court orders discovery of those materials, it must protect against disclosure of the mental impressions, conclusions,
                             opinions, or legal theories of a party’s attorney or other representative concerning the litigation.
                        c. Any party or other person may, on request and without the required showing, obtain the person’s own previous statement
                             about the action or its subject matter.”
                             i.    Statement means written statement signed or adopted, or a recording or verbatim transcript of an oral statement
                        d. Work-Product Notes:
                             ii. If no work-product client would suffer; technically not privilege – “work product doctrine”

                                                                               21
                             iii.    Work-Product protects against inefficiency, protects clients
                             iv.     work-product may become discoverable if undue hardship, etc.
                             v.      work-product is anything prepared by the attorney with an eye for litigation – only info in prep for litigation is protected
                             vi.     the burden is on the other side to obtain work-product
                             vii.    ** privilege is absolute
                             viii.    Rule 26(b)(3)(A): applies to representatives of attorney (private investigator, paralegal, etc.)
                                     a. applies to documents and tangible things
                                     b. Hickman would provide protection for thoughts. Higher showing needed if are thoughts
                             ix.     Rule 26(b)(3)(C)
                                     a. If you give statement, you can obtain a copy of it is you signed it, adopted, or recorded an oral statement. Applies to
                                          anyone including non-parties or witnesses.
Hickman v. Taylor
        Rule 33 cannot be used against a non-party
        Discovery was never intended to diminish the adversarial nature of common law trials
        (interview notes) “work product”-information obtained by counsel in preparation of trail is not discoverable.
        A Party who can question the same witness and obtain much the same information in other ways, has no right to reap the benefits of another
         party’s hard work.
        Only apply to material prepared in anticipation of trial, this, statements of witnesses taken in the ordinary course of business, outside of pending
         litigation, remain open to discovery. “mental impression”
        Types of protection-- work product vs. non-testifying expert; exceptions cannot be mental impressions. The more it is towards mental impression,
         the more unlikely it will be an exception.




                                                                      EXPERT TESTIMONY
H. Experts
       You can talk to 4 experts – 3 give you negative testimony, 1 gives you positive testimony
       You use the 1, but don‘t have to even disclose the other 3 (since, reasonably, you wouldn‘t have those experts testify at trial) – 26b4
       Leads to a race to grab as many experts as you can
             o Technically, there‘s nothing that stops an expert (unless it‘s a lawyer) from working for both sides
             o To get around this, people write K in which experts agree to consult for only one side of the case
       Exception in 26 b4b that traces back to 35b:
             o Unless 35b: The other party orders a mental/physical exam of you, using their expert. You don‘t get a copy of the report automatically. But
                  if you request it, then you waive your right to protect the exam results from other exams you may have done by your own experts.
        26(a)(2)(B): Expert testimony: identity and the signed report showing the opinions the expert will give and the grounds for those opinions.
                       a. An expert is one who is retained or specifically employed to provide expert testimony in the case OR whose duties as an
                             employee of the party regularly involve giving expert testimony.
        Experts – Rule 26(b)(4)
                  1. Experts – Rule 26(a)(2)
                       a. Must disclose experts who may testify at trial
                       b. Disclosure must include written report:
                             i.   Statement of all opinions and basis/reasons for opinions
                             ii. Data considered
                             iii. Exhibits that will be used
                             iv. Qualifications (including publications list for prior 10 years)
                             v. List of cases in which testified at trial or depo in prior 4 years
                             vi. Compensation paid for study and testimony
                                                                               22
                       c.  Must make disclosure as directed by court. Otherwise, at least 90 days before trial or, if rebuttal, 30 days after other’s
                           disclosure.
                  2.   Experts – Rule 26(b)(4)
                       a. May depose any identified testifying expert
                       b. Non-testifying experts subject to discovery only as provided in Rule 35(b) or “on showing exceptional circumstances under
                           which it is impracticable for the party to obtain facts or opinions on the same subject by other means”
                           i.    Non-testifying expert: “retained or specially employed by another party in anticipation of litigation or to prepare for trial
                                 and who is not expected to be called as a witness at trial”
                       c. Party seeking discovery pays the expert a reasonable fee
                                     Experts: Rule 26(a)(2)
                                           A. Shall disclose experts who may testify at trial
                                           B. Disclosure must include written report:
                                                     A. Statement of opinions and basis/reasons for opinions
                                                     B. Data considered
                                                     C. Exhibits to be used
                                                     D. Qualifications (including publications list for prior 10 years)
                                                     E. Compensation paid
                                                     F. List of cases in which testified at trial or depo in prior 4 years
                                           C. Make disclosure as directed by court. Otherwise, at least 90 days before trial or, if rebuttal, 30 days after
                                                other’s disclosure.
                                     Experts: Rule 26(b)(4)
                                           A. Testifying experts: The mandatory disclosure rules require a party to provide detailed information about
                                                experts who may testify at trial. FRCP 26(a)(2).
                                                     A. 26(b)(4)(A): Allows a party to depose anyone identified as a testifying expert.
                                           B. Non-testifying experts: If the expert will not testify, the facts he knows and the opinions he has formed are
                                                usually not discoverable.
                                                     A. 26(b)(4)(B): Other parties may discover that information only upon a showing of need. When
                                                           discovery is allowed, it must be by deposition or interrogatories.
                                                                A. 26(b)(4)(B): Non-testifying experts subject to discovery only as provided in Rule 35(b) or
                                                                     upon a showing of exceptional circumstances under which it is impracticable for the
                                                                     party seeking discovery to obtain facts or opinions on the same subject by other means
                                                                B. Rule 35(b) Exception: Although a physician or other medical professional is technically
                                                                     an expert, the report prepared following a Rule 35 physical or mental examination can
                                                                     be obtained without a showing of need under the circumstances set out in that rule.
                                           C. Costs: A party who seeks discovery from an expert is usually required to pay a reasonable fee to the expert,
                                                as well as the expert’s costs




Thompson v. The Haskell
             o An employee (P) sues her employer for sexual harassment after being fired
             o P hires an attorney who has her undergo a psychological profile
             o D tries to obtain a copy of that report
             o P argues that under 26b4, the report is protected from discovery – wasn‘t planning on having the psychologist testify at the trial
                           26b4 allows for certain exceptions: 35b or if there‘s a showing of exceptional circumstances
             o Exceptional circumstances here: The information couldn’t be duplicated – exam taken 10 days after the incident – and therefore it
                  was discoverable
       Non- testifying expert is immune from discovery unless exceptional circumstances can be shown. In order to promote interest in fairness to the
        opposing party.
       Protection applied, exception applied as well

                                                                             23
Chiquita Int. Ltd. V. M/V Bolero Reefer
         Chiquita sues Reefer after damage to a cargo of bananas – Chiquita hires an inspector to investigate the accident site – expert would be not testifying
          at the trial – Reefer tries to get expert‘s testimony – Chiquita says that testimony is non-discoverable under 26b4
         Reefer can‘t prove ―exceptional circumstances‖ (in contrast to Thompson)
               The ship was completely in their control, they knew there was going to be a problem, and they chose not to do the investigation
               If you grant discovery in that kind of case, then you‘re ruining the incentive structure – giving people perverse incentives not to investigate
               Holding: information gathered by plaintiff‘s expert not discoverable
         Protection applied, but not exception
         Non-testifying expert is immune from discovery unless exceptional circumstances can be shown. Evidence was not lost, destroyed. Or altered and
          was not barred of access.
         If an expert uses other opinion or observation to arrive to an opinion, that would be discoverable.




                                                                        RESOLUTION WITHOUT TRIAL
A. Introduction
         Discovery will sometimes produce information that enables parties to settle, but can also drive parties further apart
         As common law pleading disintegrated, disputes that did not settle could only be adjudicated at trial, with the coming of discovery, trials are
          expensive and time-consuming, so our procedural system has sought ways to avoid them
         In the last fifty years, the civil trial rate in the federal courts has fallen from 20% to 4%
         Many cases end with adjudicated decision (dismissal on the pleadings or summary judgments) rates of adjudication have remained at about 30%
         The remainder of cases end with something other than an adjudicated decision

B. The Pressure to Choose Adjudication or an Alternative
1. Default and Default Judgments (Rule 55)
         Designed to goad the defendant into action
         Allen says: Rule 55: Default
               o You don‘t have to answer, respond or cooperate
               o You can have the system itself coerce compliance or
               o Like our system, You can continue the privatization where if they don‘t show, they lose
               o If the def doesn‘t respond, you can get a judgment, clerk enters a finding and then a judgment of default, question becomes what is it‘s
                    scope?
                             Where complaint contains sum certain – enter the default for the sum certain
                             If it ambiguous you got to 55(2) and you have to make a determination of that amount, the def can come back to contest damages
                                        Sometimes you see trials on damages, not often though, because a lot of times they are defaulting because they don‘t‘
                                         have any $
                                        Sometimes ask to have default judgment removed Rule 55(c) – if you have a good excuse for missing the answer
                                         period

A.   DEFAULT JUDGMENTS AND DISMISSALS
       Default and Default Judgments (D’s inaction)
                  o When either side fails to do its part after the initiation of a lawsuit - either by failing to answer a complaint as a D (use Rule 55) or
                      failing to prosecute one's claims as a P - the FRCP provide for a way to terminate the action against the party who has dropped the
                      ball
                  o Two stage process for Rule 55:
                             Opposing party may seek a clerk’s default when the D fails to plead as required or defend via motion as required (You
                                 have 21 days after served, or 60 days if waived, see 12(a))
                                                                             24
                                  After the clerk has entered a default, opposing party may seek a default judgment from the court (only can recover what
                                   they ask for in the addendum clause)
                                        o If D has entered an appearance, they must be notified of the hearing on the default judgment in a last attempt to
                                             defend themselves (improper service?)
                                        o To get a default judgment under Rule 55(d):
                                                   o P must request a default judgment
                                                   o P must show by affidavit the amount due
                                                   o Reason for default must be failure to appear
                                                   o D must neither be a minor or an incompetent person
                    o    Setting Aside an Entry of Default – Rule 55(c)
                               Ct will do so if petitioner has shown “good cause” based on three factors:
                                        o Whether the default was willful or the result of D’s culpable compliance
                                        o Whether the set-aside will prejudice the P, and
                                        o Whether the D has a meritorious defense
                    o    Setting Aside a Default Judgment
                               Rule 55(c) also indicates that a default judgment may be set aside, but in only in accordance with Rule 60(b) (reopen), and
                                   in conjunction with the good cause factors generally used to evaluate motions to set aside entries of default
                                        o Cts are more likely to set aside default judgments instead of judgments reached after some consideration of the
                                             merits
                    o    Damages for Default Judgments – Rule 54(c); Rule 55(b)(2)
                               If P obtains a default judgment, Rule 54(c) limits the recovery to the amount prayed for in the complaint
                                        o A hearing may be held under Rule 55(b)(2) to assess the appropriate amount of damages

DEFAULT – Rule 55: A party who fails to respond to a claim can be declared in default and may have judgment rendered against it.
                                55(a): Entry of default: allows for an entry of default whenever a party fails to plead or otherwise defend against a claim.
                                      1. Not only defendants: Rule applies to all parties against whom a claim is filed.
                                      2. “Plead or otherwise defend”: A party pleads by filing an answer or reply.
                                               a. Otherwise defend: Filing a pre-answer motion raising a 12(b) defense or a summary judgment motion
                                                    clearly constitutes defending. A motion to transfer venue is not “otherwise defending”
                                               b. Usually 21 days to plead or otherwise defend
                                55(b): Who enters judgment
                                      1. 55(b)(1): Clerk: The clerk may enter the default if the following conditions are satisfied.
                                               a. Sum certain claim: claim that can be made certain by calculation
                                               b. Default was based on the party’s failure to appear
                                      2. 55(b)(2): Court: In all other cases, the court enters the default judgment. Rule 55
                                               a. Notice of hearing: If the defaulting party has appeared in the action, Rule 55(b)(2) requires that he be
                                                    served with written notice of the application for judgment at least 3 days before the scheduled hearing.
                                55(c): Challenging entry of a default: A party may have the entry of a default set aside by showing good cause why it did not
                                plead or otherwise defend. Examples of good cause include that the party never received notice of the suit or suffered a serious
                                illness.
                                      1. Challenging a default judgment: If the party can show any of the grounds for reopening a judgment listed in Rule
                                          60(b), the court will set aside the default judgment. FRCP 55(c). You have to have a really good reason why you failed
                                          and the burden shifts to the defendant. (must file within 1 yr)
Peralta v. Heights Med. Center (1988)
          Received service, but not within time limit
          D failed to supply an answer, and a default judgment was entered.
          D then tried to revive the default judgment, arguing due process, not had a chance
          P argue even if he was served, D would have lost, so no meritorious defense.
          SC reversed and did not accept that argument under Constitutional view




                                                                              25
   Involuntary and Voluntary Dismissals (P’s inaction)
             o Involuntary Dismissals – Rule 41(b)
                       If P fails to prosecute their claim, follow the rule or comply with a court order, D can move to dismiss the claim or any
                           action against D
                       Unless the cts say otherwise, the effect of an involuntary dismissal is with prejudice – matter is adjudicated on its merits (P
                           cannot refile claim)
             o Voluntary Dismissals
                       P can dismiss its own case voluntarily if it determines it is better to terminate that to continue
                       P must file a “stipulation of dismissal” (effecting consent of the parties– Rule 41(a)(1)(A)(ii)), or get permission from the
                           court
                                o No notice needed to the court or other party if before an answer or SJ motion
                                o In granting, ct considers:
                                           o Has the party given proper explanation of dismissal
                                           o Whether a dismissal would waste judicial time and effort
                                           o Whether a dismissal would prejudice Ds
                       Voluntary dismissals under Rule 41 (a) are without prejudice – P can refile
                                o P can only dismiss its case under Rule 41(a)(1) without prejudice once - a subsequent dismissal will result in
                                     prejudice
                                o If the voluntary dismissal has permission of the court, there is no proviso of prejudice on subsequent dismissals
                                           o In order not to abuse this rule, Rule 41(d) says if a P who previously dismissed an action in any court
                                                files an action based on or including the same claim against the same D, the court: 1) may order the P
                                                to pay all or part of the costs of that previous action, 2) may stay the proceedings until the P has
                                                complied.
                       If the court is going to dismiss a case sua sponte, then they have to give notice to P&D but the attys are always on notice to
                           comply with the Rules
             o DISMISSAL – Rule 41
                       41(b): Involuntary Dismissal – Rule 41(b) allows a court to order a dismissal for two reasons.
                                o Failure to prosecute: If the plaintiff fails to move the case along to completion, the court can dismiss.
                                           o Rarely used
                                o Failure to comply with rules or court order
                                           o Defect: Where there is a defect in the claimant’s case, including lack of jurisdiction, any other Rule 12
                                                defense, res judicata, and statute of limitations.
                                           o Sanctions: relatively rare
                                o Effect of Dismissal: Rule 41(b) also specifies the effect of a dismissal on later litigation. In many cases, the
                                     dismissal will be an adjudication on the merits, which prevents the plaintiff from suing the defendant.
                                           o Basic Rule: An involuntary dismissal operates as an adjudication on the merits, but not in the case of a
                                                dismissal for lack of jurisdiction, improper venue, or failure to join a party under Rule 19.
                                o 41(d): Costs of Previously Dismissed Action: If a plaintiff who has dismissed an action commences an action
                                     based on the same claims against the same defendant, the court may make them pay the costs of the previously
                                     dismissed action.
                       41(a): Voluntary Dismissal

                                                                       26
                                         o       How case dismissed: A case can be dismissed in three ways:
                                                      o 41(a)(1): By notice: If defendant has not yet served an answer or a motion for summary judgment,
                                                           plaintiff may dismiss the case without approval of the court or consent of the other parties. Plaintiff
                                                           effects the dismissal by filing a notice of dismissal with the court.
                                                      o 41(a)(1): By stipulation: A plaintiff may also dismiss by filing a written stipulation of dismissal that has
                                                           been signed by all parties who have appeared in the case. Dismissal by stipulation may occur at any
                                                           time in the case, even during trial.
                                                      o 41(a)(2): By court order: Plaintiff may file a motion asking the court to dismiss the case.
                                            o Effect of dismissal on refiling
                                                      o By stipulation or court order: Rules 41(a)(1) and (2) provide that dismissals by stipulation or court
                                                           order are without prejudice, unless the stipulation or order provides otherwise.
                                                      o By plaintiff: Dismissal filed by the plaintiff is usually without prejudice the first time – Rule 41(a)(1).
                                                           However, a notice of dismissal is an adjudication on the merits if it is filed by a plaintiff who has
                                                           previously dismissed another action based on the same claim.
Failure to Prosecute: Involuntary Dismissal (Rule 41(b))
          Opposite of Rule 55 (which is designed to get the D to react); Rule 41 is designed to place burden on P
          Intended to keep the plaintiff pursuing the litigation
          Forces plaintiff to pursue the lawsuit to a resolution
          Defendant often needs resolution: can imagine a case in which property is attached at the beginning of the suit, defendant can‘t sell or mortgage the
           property until the lien is released
          Allen Says:
                o def can request involuntary dismissal for failure to prosecute
                                preclusion issue is flipped over, this is an adjudication on the merits!
                o Page 572-573
                                Infinite variety of ways in which people don‘t meet deadlines and problems that come up making business hard to do – examples
                                 of this on these pages
                                1a: scenario in which newly retained counsel requests a continuance after previous counsel was told the court would not grant
                                 another continuance – likely would grant continuance
                                1b: scenario in which the court indicated that no further continuances would be granted, attorney is sick and sends substitute
                                 counsel to request additional continuance– likely wouldn‘t grant continuance

3. Voluntary Dismissal (Rule 41(a)(1)(i))
        Rule 41(a)(1)(i): allows plaintiff to dismiss any time before the defendant answers
        Rule 41(a)(1)(ii): allows plaintiff to dismiss at any time if all parties agree
              o Does not bar refiling unless there has been a previous dismissal or the dismissal itself contains a provision barring refiling
        Rule 41(a)(2): authorizes a voluntary dismissal only by permission of the court
        Allen says: Dismissal of Actions
              o voluntary dismissals recognize the complexities of litigation – plaintiff is entitled to one dismissal before def. files answer
                             any dismissal after the first dismissal is adjudication on the merits, unless it specifically states to the contrary
              o page 574 – infamous Pennzoil case, opposed injunction, but failed to file an answer, in refusing the injunction the court included language
                   indicating the plaintiff would lose on the merits, they voluntarily dismissed and re-filed in a better forum, result: $10 billion judgment
                   against def. – if they had answered the complaint, the plaintiff couldn‘t have dismissed and refiled elsewhere
        Default and Default Judgments
              o When either side fails to do its part after the initiation of a lawsuit - either by failing to answer a complaint as a D (use Rule 55) or failing to
                   prosecute one's claims as a P - the FRCP provide for a way to terminate the action against the party who has dropped the ball
              o Two stage process for Rule 55:
                             Opposing party may seek a clerk‘s default when the D fails to plead as required or defend via motion as required
                             After the clerk has entered a default, opposing party may seek a default judgment from the court (only can recover what they ask
                              for in the addendum clause)
                                        If D has entered an appearance, they must be notified of the hearing on the default judgment in a last attempt to defend
                                         themselves (improper service?)
                                        To get a default judgment under Rule 55(d):
                                              o P must request a default judgment
                                              o P must show by affidavit the amount due
                                              o Reason for default must be failure to appear
                                              o D must neither be a minor or an incompetent person
              o Setting Aside an Entry of Default – Rule 55(c)
                             Ct will do so if petitioner has shown ―good cause‖ based on three factors:
                                        Whether the default was willful or the result of D‘s culpable compliance
                                        Whether the set-aside will prejudice the P, and
                                        Whether the D has a meritorious defense
              o Setting Aside a Default Judgment
                             Rule 55(c) also indicates that a default judgment may be set aside, but in only in accordance with Rule 60(b), and in conjunction
                              with the good cause factors generally used to evaluate motions to set aside entries of default
                                        Cts are more likely to set aside default judgments instead of judgments reached after some consideration of the merits
                                                                                  27
               o     Damages for Default Judgments – Rule 54(c); Rule 55(b)(2)
                               If P obtains a default judgment, Rule 54(c) limits the recovery to the amount prayed for in the complaint
                                           A hearing may be held under Rule 55(b)(2) to assess the appropriate amount of damages
         Involuntary and Voluntary Dismissals
                o Involuntary Dismissals – Rule 41(b)
                               If P fails to prosecute their claim, follow the rule or comply with a court order, D can move to dismiss the claim or any action
                                against D
                               Unless the cts say otherwise, the effect of an involuntary dismissal is with prejudice – matter is adjudicated on its merits (P
                                cannot refile claim)
                o Voluntary Dismissals
                               P can dismiss its own case voluntarily if it determines it is better to terminate that to continue
                               P must file a ―stipulation of dismissal‖ (effecting consent of the parties– Rule 41(a)(1)(A)(ii)), or get permission from the court
                                           No notice needed to the court or other party if before an answer or SJ motion
                                           In granting, ct considers:
                                                  o Has the party given proper explanation of dismissal
                                                  o Whether a dismissal would waste judicial time and effort
                                                  o Whether a dismissal would prejudice Ds
                               Voluntary dismissals under Rule 41 (a) are without prejudice – P can refile
                                           P can only dismiss its case under Rule 41(a)(1) without prejudice once - a subsequent dismissal will result in prejudice
                                           If the voluntary dismissal has permission of the court, there is no proviso of prejudice on subsequent dismissals
                                                  o In order not to abuse this rule, Rule 41(d) says if a P who previously dismissed an action in any court files an
                                                       action based on or including the same claim against the same D, the court: 1) may order the P to pay all or
                                                       part of the costs of that previous action, 2) may stay the proceedings until the P has complied.
                               If the court is going to dismiss a case sua sponte, then they have to give notice to P&D but the attys are always on notice to
                                comply with the Rules
                                                                          SUMMARY JUDGMENT
D. Curtailed Adjudication: Summary Judgment
1. Introduction
         Adjudicative alternative to trial for cases so one-sided that trial would be pointless
         Rule 56 governs summary judgment
         Rule 56(c): provides that such motions be granted when the record ―shows that there is no genuine issue as to any material fact and that the moving
          party is entitled to judgment as a matter of law‖
         Burden issue can matter who survives/wins SJ
         Can use the burden of production, or present evidence to rebut an element to win SJ if you are a D

“Reasonable jury has to reach one conclusion only”

Changing standards: Adickes & Celotex
Celotex Corp. v. Catrett (1986)
        Facts: brought suit against asbestos mfg., summary judgment granted because plaintiff couldn‘t show that her husband was exposed to any product
         mfg. by defendant
        Appellate reverses, supreme court formulates new test and sends back to appellate court to review case in light of new standard
        Summary judgment and directed verdict do the same thing but in different procedural way
        Adickes – whoever was moving for summary judgment had to go through all the options and present evidence on each, in Adickes, they didn‘t show
         that in all the ways in which the elements could be proven at trial couldn‘t be proven – strange test because there are a million ways things could have
         happened – Adickes conceives of this as physical burdens
        The critical change in Celotex is that summary judgment is appropriate, give a fair chance to present evidence and it is where it is (no burden), you
         file affidavits, they file affidavits and respond, (mini-trial) if all that has happened (under Adickes they must eliminate all ways the non-moving party
         could win because they have the burden since they are the moving party)
               o Celotex eliminates this, both sides present affidavits of evidence that would be presented at trial, given the opportunity on both sides to
                     provide evidence and given where the evidence is (this is reciprocal, plaintiff has the burden to respond to motion for summary judgment)
               o That also means that there is an integral relationship between summary judgment and discovery Rule 56f – other side has to have had an
                     adequate time for discover

         Movant/non-Movant responsibilities
         Creating genuine issue of material fact
         Summary judgment checklist
                          i. Other procedures distinguished
                                  1. Judgment on the pleadings: Rule 12(c) judgment on the pleadings allows a court to resolve a case based solely on the
                                       allegations in the pleadings. However, the court must accept the factual allegations in the pleadings as true. In a
                                       summary judgment motion, by contrast, the court looks at the evidence each side has.
                                  2. Judgment as a matter of law Rule 50(a)
                         ii. Procedure: A party request summary judgment by filing a motion.
                                  1. Types of summary judgment: A party may seek summary judgment on all claims in the case, or a partial summary
                                       judgment on one or more specific claims. The party can move with or without supporting affidavits. Rule 56(a)
                                                                                 28
                                   2.  Who can move: Both the claimant and the defending party may move for summary judgment on a particular claim.
                                   3.  Form of motion: If a party files a motion to dismiss for failure to state a claim or a motion for judgment on the
                                       pleadings but includes facts outside the pleadings, the court must treat the motion as a motion for summary
                                       judgment – Rule 12(b)(6) and 12(c).
                                   4. Material accompanying motion: Party moving for SJ includes supporting materials with the motion.
                                              a. All affidavits/declarations must be based on personal knowledge, set forth facts that would be admissible
                                                  in evidence, and affirmatively demonstrate that the person making the affidavit is competent to testify on
                                                  the matters covered by the affidavit
                                   5. Timing
                                              a. Post discovery: relied on evidence. Anytime after 30 days of close of discovery
                                              b. Pre-trial: legal determination
                         iii. Standard for Summary Judgment: Rule 56(c) provides that the court shall grant summary judgment if there is no genuine issue
                              of material fact and the movant is entitled to judgment as a matter of law. (2 prong test)
                                   1. Basic Principles
                                              a. Court does not weigh evidence: If there is conflicting evidence, the court must deny the motion for
                                                  summary judgment
                                              b. Court does not determine credibility of evidence or witnesses
                                              c. Favor nonmoving party: All evidence is to be viewed in the light most favorable to the nonmoving party.
                         iv. When nonmoving party has burden of proof at trial (Defendant moves for SJ)
                                   1. SJ movant may submit affidavit evidence that negates and essential element of the nonmoving party’s claim, OR
                                   2. SJ movant may demonstrate, by reviewing the record, that the nonmoving party’s evidence is insufficient to establish
                                       an essential element of the nonmoving party’s claim.
                                   3. Showing non-moving party (P) unable to carry burden.
                          v. When moving party has burden of proof at trial (Plaintiff moves for SJ)
                                   1. SJ movant must support motion with credible evidence that would entitle it to directed verdict if not controverted at
                                       trial.
                                              a. In other words, SJ movant must produce evidence proving every element of its claim. (Very tough)
                                              b. If you can do it, means entitled JMOL
                    Restated: When defendant moves for summary judgment:
                         vi. Every Element: P must have significant evidence on every element of the claim. If P lacks evidence on even one element, the
                              court should grant SJ for the defendant.
                                   1. D doesn’t have to negate the plaintiff’s case, he only has to show that P failed to meet the burden of production.
                                       (Celotex)
                                   2. D must point to the specific evidence in question, he can’t just say they don’t have evidence on this element.
                                              a. When the defendant moves for SJ, the court has to decide if the plaintiff has met the burden of production.
                                                  If they have not satisfied the burden of production, the court should grant SJ.

           The Supreme Court has stated that the moving party always bears the initial responsibility of informing the district court of the basis for its motion
and identifying those portions of the record which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett . . . The
Supreme Court also explained that summary judgment is appropriate, no matter which party is the moving party, where a party fails to make a showing
sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. . . . Thus, the
moving party must explain its reasons for concluding that the record does not reveal any genuine issues of material fact, and must make a showing
supporting its claims insofar as those claims involve issues on which it will bear the burden at trial.

          Once the moving party has carried its burden, the responsibility then shifts to the nonmoving party to show that there is, in fact, a genuine issue of
material fact. The Supreme Court has directed that the nonmoving party “must do more than simply show that there is some metaphysical doubt as to the
material facts.” Matsushita Elec. Industrial Co. v. Zenith Radio . . . The nonmoving party “must come forward with ‘specific facts showing that there is a
genuine issue for trial.’ ” . . . In evaluating the nonmovant's proffer, a court must of course draw from the evidence all justifiable inferences in favor of the
nonmovant. . . .

Creating Genuine Issue of Material Fact
Bias v. Advantage International Inc.
          The moving party has the burden of demonstrating the absence of a genuine issue of material fact. The nonmoving party must show evidence
           tending to show that there are material facts in dispute to preclude summary judgment.
          The district court granted the ∆’s motion for summary judgment because the evidence showed that no insurance company would have insures Bias
           because of his past cocaine use
          P should have deposed these witnesses or should have provided conflicting evidence from others who would have been at those parties.
          The ∆s provided evidence that every insurance company inquired about drug use for the policy Bias wanted, and with respect to this the estate
           only showed that insurance companies did not ask about drug use in every stage of the process and failed to show that an insurance company
           would have insured him without asking about drug use at all.
Checklist:
     1. Who is the movant, and what is the movant’s ultimate burden?
                a. If moving party has ultimate burden, has moving part left no room for contrary conclusion/
                                                                                29
               b. If moving party does not have ultimate burden, has moving part shown that nonmovant cannot meet burden of persuasion?
     2.   If movant met its burden, has nonmovant shown a genuine issue of material?

                                                                  ROLES OF JUDGE AND JURY
Reid and burdens of persuasion
        No evidence showed that the RR was responsible, but the jury returned a verdict in favor of the ∏. The RR appealed based on insufficient evidence
         to support the verdict. Burden of persuasion was not met.
        Trial court should have directed a verdict for the RR. The court said that if there are 2 equal inferences, one which establishes liability and one that
         does not, then the ∏ has not met his burden and cannot prevail. She would have to show that a preponderance of the evidence points at the cow
         going to the tracks from the broken down fence
        P has to show that by preponderance of evidence each of the elements (duty, breach, cause, damages) are more likely than not to be established.

        Trial decision maker
               o Law vs. Fact
                                Law: mostly judge (burden of production)
                                Fact: Jury or judge (burden of persuasion). Limited or restricted access to jury, since can have bench trials. Bench trial judge
                                 must explain their reasoning, not just conclusions.
Seventh Amendment
        Suits of common law-equity court v. common law court.
               o Common Law
                                K, tort, nuisance, , damages, trover (value of stolen property), Replevin (Restore ring to possession), rent, ejectment from
                                 property, Habeaous corpus, mandamus, prohibition,
               o Equitable
                                Specific performance, Reformation, Rescission, Injunction, accountings, class actions and derivative suits, monetary relief when
                                 restitutionary (disgorgement), monetary relief when incidental to injunction, reform or resend contract.
        Money can be equitable if it’s restitutionary in nature!
        1. Preservation of jury clause; 2. Re-examination clause
        You apply historical analysis if the case is like 1791. Look at which court would likely use back in those days.
        If sue under statutory action or duty, then think about what remedy. When you have a new right created by statue or judicial decision.
Chauffeurs, Teamsters & Helpers, Local No. 391 v. Terry
        1.Compare the action to actions historically brought in England ( if the same law exist back then); 2.Examine the remedy sought: legal= jury;
         equitable= judge.
        The court says that the second inquiry is more important. Under the first part it is unclear. Under the second part the court says it is legal.
        To determine whether the plaintiffs are entitled to a jury trial, the court must "examine both the nature of the issues involved and the remedy
         sought. 'First, we compare the statutory action to 18th-century actions brought in the courts of England prior to the merger of the courts of law and
         equity. Second, we examine the remedy sought and determine whether it is legal or equitable in nature.'"
        For New Cause of Action
        1. Identify most analogous claim as of 1791, then determine whether it was legal or equitable
        2. Identify remedy sought, then determine whether it was legal or equitable
        Exceptions: Some precedent addresses jury trial right in the specific situations, e.g., Markman (567-69): Scope of patent claim is issue for judge,
         based on capacities of judge, not history or Terry style analysis.
Amoco Oil Co. v. Torcomian
        P. sued for 1. Ejection; 2. Injunction, 3 Lost profits/fees; Amoco counterclaim for injunction
        For mixed equity/legal claim, it will go to jury, and jury will decide the common issues.
        Jury issue has to be decided first, before deciding the equitable issues.
Waiver of jury
        FRCP 38(d)- you have 14 days after amending a claim or answer. Otherwise you lose a chance.
        Advisory jury 39(c), a none-binding jury. In an action not triable of right by a jury, the court, on motion or on its own.
                                                              JUDGMENT AS A MATTER OF LAW (JMOL)
        If a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient
         evidentiary basis to find for the party on that issue, the court may grant motion for JMOL
        Could a reasonable jury find for that party, not would. This is more like a range.
        See also FRCP 52(c), 56(a). 52 is for bench trials, but similar thing can happen and with same standard. (motion for judgment on partial findings)
        Before trial, it is called Summary judgment. Then all called JMOL at different stages. File timing depend on if a party has been “fully heard”
        D can motion after P is done, yet before D did anything, or after D done. P can only do after D is done with trial.
        Post trial, P and or D can “renew” motion previously filed after verdict and/or judgment no later than 28 days, which can leads to a new trial.
Pennsylvania Railroad v. Chamberlain
        § Pl case is based on a testimony of a single employee, who said that at one point he saw the car on which the decedent was riding slowing down
         and other cars behind it gaining speed. Later he heard a loud noise, like a crash, but did not look.
        § Three other employees testified that no collision occurred. The trial court directed a verdict for defendant. The appellate court reversed finding
         there was conflicting evidence and so a jury issue was present.

                                                                               30
          Holding is that JMOL is proper and reversed the appellate court.
          § They said that the circumstantial evidence (based on the inference) was so insubstantial and insufficient that it did not justify submission to the
           jury.
          § Since there's an inference as to what happened from both sides (no one actually saw what happened), then judgment as a matter of law must go
           against the person with the burden of production.
          § Court was also doubtful of witness' testimony
          RULE: In a case where the proven facts give equal support to two inconsistent inferences (aka equipoise) (or unbelievable evidence), judgment
           must go against the party upon whom the burden of persuasion rests.
          Not suppose to weight evidence or witnesses
Analysis Steps:
          1. Look at claim and evidence methodically,
          2. Rule out clear cases
          3. Shipman principles (608 n3)
                 o Consider all evidence but don’t weight it
                 o Draw inference for nonmovant’s favor
                 o JMOL is improper if there is reasonable room for disagreement about ultimate issues
                 o JMOL is proper if nonmovant has only scintilla
                                                                       NEW TRIAL (not on exam)
          FRCP 59(a)(1)
          New Trial may be granted for any reason for which a new trial has heretofore been granted in an action at law in federal court
          Flawed Procedures
                 o Juror misbehavior
                 o Improper access to information
          Flawed verdicts
                 o Contradictions
                 o Against Weight of the evidence
Lind v. Schenley Industries
          Lind, a liquor store manager brought action against his employer for breach of contract and the employer testified that he had not made the
           promises that Lind talks about. The jury found in favor of Lind and the trial court granted the ∆’s motion for JNOV and in the alternative a new trial,
           because the judge concluded that the verdict in favor of Lind was against the weight of the evidence
          The court said that a trial judge may not substitute his judgment for that of the jury concerning the weight of the evidence. If he does so and a new
           trial results, that is an abuse of discretion. The appellate court said that it has to look at it with stronger scrutiny when there is a JNOV based on a
           flawed verdict and a new trial for a flawed verdict. The standard for a new trial: it is conceivable that a jury could find a certain way, but still a lot
           of the evidence tends to show that the other party should succeed. The court in this case decided that the subject matter for the jury’s
           consideration was straightforward and simple, and the trial judge by granting the JNOV and possibly new trial was just substituting his judgment for
           theirs.
          Verdict against the weight of the evidence
                                                                                       th
          Not proper when only accessing credibility of witness/evidence, not 13 juror.
New Trial v. 60(b) standards
          60(b) can sometimes make up if you have new evidence, up to entry of the judgment. Not restricted to substitute for belated motion for new trial.
JMOL with New trial motion
          Grant of motion for JMPL with conditional grant of motion for new trial makes both issues immediately appealable.
          Grant of new trial motion alone (without JMOL is not immediately appealable.
          Jury trial right: who gets to find the facts
          JMOL: is there anything for the fact finder to do?
          New trial: Did the fact finder misbehave? (Or: did anything taint the fact finder’s information?)
          JMOL:
     




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