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					Civil Procedure I – Baird                                                               Aaron D. Lindstrom
Federal Rules


                            Federal Rules of Civil Procedure
                                Notes on Certain Rules

I. Scope of Rules
Rule 1. Scope and Purpose of Rules
       Administered to secure “the just, speedy, and inexpensive determination of every action”
       These aims often conflict.


II. Commencement of Action; Service of Process, Pleadings, Motions,
and Orders
Rule 4. Summons
    (c) By any person not a party and at least 18 years old
    (d) Duty to avoid unnecessary costs of service
    (e) Tells how to serve – to individual or at place of abode w/ person of suitable age and discretion or
        to authorized agent
    (m) Time limits – within 120 days of filing complaint, or dismissed w/o prejudice
        Greene v. Lindsey (notice reasonably calculated, under all circumstances, to apprise interested
        parties of the pendency of the action)
        Involved case of tenants in some projects not being notified, allegedly because children were
        tearing down the notices that were taped to the door in the absence of the tenant. Supreme Court
        determined that method was not good enough.


III. Pleadings and Motions
Rule 7. Pleadings Allowed; Forms of Motions
    (a) There shall be a complaint and an answer.
    (b) Signed IAW Rule 11

Rule 8. General Rules of Pleading
    (a) Claims for Relief.
        Must contain
            (a) A short and plain statement of the grounds upon which the court‟s jurisdiction depends,
                unless the court already has jurisdiction and the claim needs no new grounds of
                jurisdiction to support it,
            (b) A short and plain statement of the claim showing that the pleader is entitled to relief, and
            (c) A demand for judgment for the relief the pleader seeks. Relief in the alternative or of
                several different types may be demanded.
        Claims:
        People ex rel. DOT v. Superior Court (fairness in pleading is giving sufficient notice of cause of
        action stated to allow preparation)
        Case where judge says a complaint using a court form is non-demurrable.
        Haddle v. Garrison (claim of injury to property through loss of at-will employment)
        Case of employee fired in retaliation for testifying; focused on specific claim he made




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Civil Procedure I – Baird                                                                 Aaron D. Lindstrom
Federal Rules

        Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit (no heightened
        standard for pleading civil rights violations against municipality)
        Homeowners claim assault by police; police claim qualified immunity from suit.
        Damages:
        United States v. Hatahley (restore injured party to position before wrong)
        Navajo horses taken before trial complete and sold to glue factory. “The fundamental principle of
        damages is to restore the injured party, as nearly as possible, to the position he would have been in
        had it not been for the wrong of the other party.”
        Honda Motor Co. v. Oberg (Oregon‟s constitutional amendment removing judicial review of
        amount of punitive damages was unconstitutional)
        Three-wheeler overturns injuring rider. Honda argued that jury‟s award of $5 million in punitive
        damages deprived Honda of property without due process.
        BMW of North America v. Gore (the amount of punitive damages can be unconstitutional)
        Gore discovered his BMW had been repainted due to acid rain before he bought it without
        disclosure. The compensatory damage was $4,000 and the punitive damages were $2 million.

    (b) Defenses; Form of Denials.
             Shall state defenses to each claim
             Shall admit or deny
             If without knowledge, shall so state – has the effect of a denial

        Zielinski v. Philadelphia Piers, Inc (denial of too much could lead to equitable estoppel admitting
        what was denied)
        PPI denied an entire paragraph. Π assumed it was denying negligence when it was really denying
        ownership of forklift.
    (c) Affirmative Defenses
              Shall set forth affirmatively: accord and satisfaction, arbitration and award, assumption of
                 risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of
                 consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release,
                 res judicata, statute of frauds, statute of limitations, waiver, and any other matter
                 constituting an avoidance of affirmative defense
        Gomez v. Toledo (plaintiff does not have to rebut defenses in his pleading)
        Police raised qualified immunity defense, but that did not raise the standard of pleading for the
        plaintiff to require asserting bad faith.
        Layman v. Southwestern Bell Telephone Co. (affirmative defenses must be raised in responsive
        pleading)
        Landowner accused SW Bell of trespassing. SW Bell had affirmative defense of having an
        easement, but did not raise it at right time.
    (d) Effect of Failure to Deny
             If an averment is not denied, it is considered to have been admitted


Rule 9. Pleading Special Matters
    (b) Circumstances constituting fraud or mistake shall be stated with particularity; condition of the
        mind may be averred generally
        Olsen v. Pratt & Whitney Aircraft (heightened standard for pleading fraud)
        Olsen alleged he was fraudulently talked out of his retirement program and then fired. He did not
        specify who the speakers were, when and where they spoke, etc. He was still given leave to
        amend.




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Civil Procedure I – Baird                                                               Aaron D. Lindstrom
Federal Rules

Rule 11. Signing of Pleadings, Motions, and Other Papers; Representations to
Court; Sanctions
    (a) All papers must be signed by attorney or party, if not represented; if not signed, can be stricken
    (b) Signature certifies that to the best of the person‟s knowledge, information, and belief, formed after
        an inquiry reasonable under the circumstances, –
             (1) Not harassing or delaying or needlessly increasing cost
             (2) Warranted under existing law or non-frivolous argument extension of existing law or
                 establishment of a new law
             (3) Allegations have evidentiary support or are reasonably likely to have evidentiary support
                 after further discovery
             (4) Denials are warranted on evidence or lack of information or belief
    (c) Sanctions
             (1) Made by motion of party or on court‟s own initiative
             (2) Intent: to deter repetition of sanctioned conduct
    (d) Doesn‟t apply to discovery
        Business Guides v. Chromatic Communications Enterprises (lawyers have duty to not to make
        frivolous arguments)
        Lawyers claimed that errors in its pleading about false information in business directories was a
        coincidence.

Rule 12. Defenses and Objections – When and How Presented – by Pleading or
Motion – Motion for Judgment on the Pleadings
    (a) Defendant shall answer within 20 days of service or, if service was waived, within 60 days after
        request for waiver was sent
    (b) Every defense shall be asserted in the responsive pleading except that the following defenses may
        be made by motion:
            (1) Lack of jurisdiction over subject matter
            (2) Lack of jurisdiction over person
            (3) Improper venue
            (4) Insufficiency of process
            (5) Insufficiency of service of process
            (6) Failure to state a claim upon which relief can be granted
            (7) Failure to join a party under Rule 19
             If (6) is asserted and matters outside the pleading are consider, goes to Rule 56, summary
            judgment.
    (c) Judgment on the Pleadings – mainly used by Π when Δ‟s responsive pleading doesn‟t dispute Π‟s
        claim
    (g) Consolidation of Defenses in Motion – If a Rule 12 motion is made, any defense or objection is
        waived unless exception in (h)(2)
    (h) Waiver or Preservation of Certain Defenses
            (1) Numbers (2)-(5) above are waived if not consolidated with other Rule 12 motions
            (2) Numbers (6) and (7) and objections to failure to state a legal defense to a claim are not
                 waived and can be made at other times.

Rule 15. Amended and Supplemental Pleadings
    (a) Amendments. May amend once as a matter of course before responsive pleading is served; may
        otherwise amend only by permission of court, but “leave shall be freely given when justice so
        requires.”
        Beeck v. Aquaslide ‘N’ Dive Corp. (burden is on the party opposing the amendment to show
        prejudice)
        Δ didn‟t know that the slide in question was not actually its product, so it admitted manufacture.
        Once it found out, it requested leave to amend and got it.



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Civil Procedure I – Baird                                                                Aaron D. Lindstrom
Federal Rules

    (c) Relation Back of Amendments. Relates back to date of original pleading when
            (1) The statute of limitations permits relation back
            (2) Claim or defense asserted arose out of the conduct, transaction, or occurrence set forth in
                 the original pleading
          Moore v. Baker (original complaint must give notice to the defendant of the claim now asserted)
          Malpractice claim where patient originally claims lack of informed consent and then, after statute
          of limitations passed, claimed negligence. Also, request to amend came late in trial, after doctor
          had moved for summary judgment.

Rule 16. Pretrial Conferences; Scheduling; Management
    (a)   Court can order conferences
    (b)   Can set a schedule
    (e)   Pretrial Orders. These orders shall be modified “only to prevent manifest injustice.”
    (f)   Sanctions. For disobeying the order, no appearing, being unprepared, failing to participate in good
          faith; can be requested by motion or on judge‟s own initiative; can use Rule 37 sanctions.
          Chudasama v Mazda Motor Corp (sanctions are mandatory for discovery abuses under Rule
          26(g)(3) but which sanctions imposed is discretionary)
          Π sues Mazda for minivan accident. Π requested just about every piece of information Mazda
          had, judge made no rulings, and so Mazda withheld everything. Judge then gave Π default
          judgment.
          Lockhart v Patel (settlement conferences don‟t mean much unless decision-makers are present;
          opinion without an issue to be decided)
          Judge threatened to sanction insurance company for failing to send a representative with authority
          to settle to conference.
          Sanders v Union Pacific Railroad Co. (failure to meet scheduling guidelines can result in
          sanctions if adverse party‟s ability to prepare has been harmed (later reversed))
          Π‟s lawyer missed deadlines because working on another case. He got to see what Δ had prepared
          at the conference, so Δ was disadvantaged. Π‟s case was dismissed with prejudice.
          McKey v Fairbain (judges can manage cases by denying amendments that are requested too late)
          Π slipped on ice in rental house. Originally pleaded negligence on Δ‟s part, then wanted to switch
          to statutory requirement to keep water out.


V. Depositions and Discovery
Rule 26. General Provisions Governing Discovery; Duty of Disclosure
    (a) Required Disclosures
           (1) Initial Disclosures: Made without request
                (A) Name (address and phone) of individuals likely to have discoverable information
                (B) Copy (or description by category and location) of documents, data, and tangible
                    things that the disclosing party may use to support its claims or defenses
                (C) Computation of damages
                (D) Copy of insurance agreement
                (E) List of exemptions
           (2) Disclosure of Expert Testimony. (Testifying experts)
                (A) Identity of testifying experts
                (B) Written report of testimony (opinions, basis for them, data, exhibits to be used,
                    qualifications, list of publications in past 10 years, compensation to be paid, listing
                    of other cases where testified in last 4 years




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Civil Procedure I – Baird                                                               Aaron D. Lindstrom
Federal Rules

                (C) Made at least 90 days before trial, unless pretrial order otherwise specifies, unless
                     expert will solely contradict or rebut opposing expert – then within 30 days after
                     other party‟s disclosure
            (3) Pretrial Disclosures
                (A) Name of witnesses to testify at trial
                (B) List of deposed witnesses and transcript
                (C) Identification of document and exhibits for trial
            (4) Form of Disclosures. In writing, signed, and served.
            (5) Methods to Discover Additional Matter. May use depositions, interrogatories, . . . mental
                and physical exams, and requests for admission
    (b) Discovery Scope and Limits
            (1) In General. Relevant to the claim or defense of any party; information does not need to
                be admissible if reasonably calculated to lead to discovery of admissible evidence
        Blank v Sullivan & Cromwell (parties entitled to discovery of evidence “reasonably calculated to
        lead to the discovery of admissible evidence”)
        Female lawyers (πs) challenging hiring practices get disclosure on “relevant” issue of promoting
        practices.
        Steffan v Cheney (stricter scrutiny of relevance in administrative actions; “Judicial review of an
        administrative action is confined to „the grounds . . . upon which the record discloses that [the]
        action was based.‟”)
        Steffan alleges he was constructively discharged from USNA for homosexuality in violation of his
        constitutional rights; his conduct was not relevant because he was discharged for statements and
        because judicial review is limited in admin actions (unusual case)

             (2) Limitations. Can be limited to prevent discovery that is: unreasonably duplicative or
                 obtainable from a more convenient, less burdensome, or less expensive source
             (3) Trial Preparation: Materials. (Work product)
                         Obtainable only by showing substantial need and inability without undue
                            hardship to obtain the substantial equivalent material by other means
                         Court shall protect against disclosure of mental impressions, conclusions,
                            opinions, or legal theories
                         Statements previously made by the requesting party do not need the showing

        Hickman v Taylor (work product is privileged, even though it may fall outside of attorney-client
        privilege)
        Tug sinks, killing 5 of 9 crewmembers. Tug‟s lawyer interviews survivors. Π tries to get Δ‟s
        lawyer‟s work, but can‟t because of work product privilege.

             (4) Trial Preparation: Experts. (Non-testifying experts)
                 (A) Party may depose testifying witness (after getting written report)
                 (B) Non-testifying witnesses are not subject to interrogatories or depositions except
                     under Rule 35(b) or upon a showing of exceptional circumstances
        Thompson v The Haskell Co (non-testifying expert psychologist‟s records were discoverable
        because no other means of getting the information)
        Π sues for sexual harassment. Her lawyer arranges for psychological examination 10 days after
        firing. No other way to determine her mental state shortly after firing.
        Chiquita Int'l v M-V Bolero Reefer (non-testifying expert marine surveyor‟s records were not
        discoverable because other ways to get the information)
        Banana shipment made only partially and with damaged goods. Π has equipment examined.

             (5) Claims of Privilege . . . Must disclose enough for other party to assess the claim of
                 privilege




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Civil Procedure I – Baird                                                               Aaron D. Lindstrom
Federal Rules

    (c) Protective Orders. Can protect a party from annoyance, embarrassment, oppression, or undue
        burden or expense by limiting discovery
    (f) Conference of Parties; Planning for Discovery. Parties must meet 21 days before judge‟s
        scheduling conference; must submit a written plan with 14 days of this conference
    (g) Signing. Attorney must sign disclosures, requests, responses and objections. Appropriate
        sanctions for violating the rule shall be imposed

Rule 30. Depositions upon Oral Examination
    (a) Can be taken “of any person, including a party”; attendance can be required under Rule 45; must
        obtain leave of the court to take more than 10 depositions
    (d) Each deposition is limited to one day of seven hours

Rule 33. Interrogatories to Parties
    (a) Availability. Limited to 25 questions
    (c) Scope; Use at Trial. An interrogatories is not necessarily objectionable merely because an answer
        involves an opinion or contention that relates to fact or the application of law to fact

Rule 36. Requests for Admission
    (a) Request for Admission. When requested, an answer or objection must be served within 30 days or
        it will be considered admitted.

Rule 37. Failure to Make or Cooperate in Discovery: Sanctions
    (a) Motion for Order Compelling Disclosure or Discovery.
              Moving party must have in good faith tried to confer with the resisting party
              Sanctions: reasonable expenses, including attorney‟s fees
    (b) Failure to Comply with Order.
             (1) Failure may be considered contempt of court
             (2) Sanctions
                  (A) Facts requested will be taken as established
                  (B) Disobedient party prevented from supporting designated claims or defenses or
                      introducing designated evidence
                  (C) Striking pleadings, staying proceedings until party obeys, dismissing the action, or
                      default judgment against disobedient party
                  (D) Contempt of court
    (c) Failure to Disclose; False or Misleading Disclosure, Refusal to Admit
             (1) Party that fails to disclose cannot use it as evidence at trial


VI. Trials
Rule 38. Jury Trial of Right
    (a) Right Preserved. Historical test under Seventh Amendment
    (b) Demand. Any party may demand a jury trial – but it must be demanded; it is not automatic
        Chauffeurs, Teamster & Helpers, Local No 391 v Terry (to determine if there is a right to a jury
        trial, compare with jury right in England in 1791; status of remedy sought outweighs status of
        cause of action)
        Union truckers sued for breach of duty of fair representation. Majority decides this is analogous to
        a trustee‟s breach of fiduciary duty, which was an equitable action, but remedy sought is legal in
        nature, so there was a right to jury.




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Civil Procedure I – Baird                                                                Aaron D. Lindstrom
Federal Rules

        Amoco Oil Co v Torcomian (whichever trier of fact goes first will bind the subsequent trier;
        where there are overlapping legal and equitable claims, respect for the jury requires that the jury
        try its claim first)

Rule 45. Subpoena

Rule 47. Selection of Jurors
    (a) Parties may question jurors.
    (b) Peremptory Challenges. Covered by 28 USC §1870 (3 peremptory challenges)
    (c) Excuse. Unlimited numbers of excusals for good cause

Rule 48. Number of Jurors
       Not fewer than 6 and not more than 12
       All participate in the verdict
       Unless parties otherwise stipulate, verdict shall be unanimous and not taken from a jury reduced to
        fewer than 6 members

Rule 50. Judgment as a Matter of Law in Jury Trials; Alternative Motion for New
Trial; Conditional Rulings
    (a) Judgment as a Matter of Law.
            (1) If a party has been fully heard on an issue and there is no legally sufficient evidentiary
                basis for a reasonable jury to find for that party on that issue, court may grant judgment
                as a matter of law
            (2) Motions made any time before submission of the case to a jury  not made after
                submission
        Reid v San Pedro, Los Angeles & Salt Lake Railroad (directed verdict because party with burden
        of proof has failed if rational inference support either party)
        Cow goes through either open gate or hole in fence. Π doesn‟t show it was more likely to have
        gone through the gate, so Δ won.
        Pennsylvania Railroad v Chamberlain (directed verdict because party with burden of proof failed
        to show facts; however, credibility is an issue for juries)
        Brakeman was run over by railroad car. All actual witnesses said he fell out; another “witness”
        infer from sound and circumstances that another car hit his, causing him to fall out. Since no facts
        in dispute, directed verdict was appropriate.
    (b) Renewing Motion for Judgment After Trial; Alternative Motion for New Trial. May renew
        motion NLT 10 days after entry of judgment and may alternatively request a new trial
    (c) Can request conditional grant of a new trial
        Lind v Schenley Industries (judge should not grant a new trial simply to substitute his judgment
        for the jury‟s judgment; jury must be deciding against weight of evidence)
        Sales manager alleges he was promise a 1% commission, which would have paid him more than
        anyone else in the company. Jury finds for salesman.
    (d) If judgment as a matter of law is denied, party who prevailed on that motion may, as appellee,
        assert grounds entitling the party to a new trial.


Rule 51. Instructions to Jury: Objections
       Should be done to preserve issue for appeal

Rule 52. Findings by the Court; Judgment on Partial Findings
    (a) Effect. Findings of fact “shall not be set aside unless clearly erroneous and due regard shall be
        given to the opportunity of the trial court to judge of the credibility of witnesses.”


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Civil Procedure I – Baird                                                                  Aaron D. Lindstrom
Federal Rules

        Anderson v Bessemer City: woman alleges discrimination in hiring for recreation director slot;
        circuit court was wrong that trial court‟s findings of fact were clearly erroneous



VII. Judgment
Rule 55. Default
       Granted if Δ has failed to plead or otherwise defend

Rule 56. Summary Judgment
    (c) Motion and Proceedings Thereon. Judgment shall be rendered if “there is no genuine issue as to
        any material fact and … the moving party is entitled to a judgment as a matter of law.”
    (e) Affidavits shall set forth such facts as would be admissible in evidence
        Celotex Corp v Catrett (party that will have the burden of proof at trial will have the equivalent
        burden at summary judgment)
        Π alleged her husband had died from asbetosis after allegedly exposed to one of Δ‟s products. Π
        had submitted no evidence on essential that would have to be proved at trial, so Δ granted
        summary judgment.
        Visser v Packer Engineering Assoc (if no rational jury could find for non-moving party, moving
        party must get summary judgment)
        Visser (Π) alleges being fired under age discrimination to prevent getting pension. However, he
        presented evidence only about how he was fired for disloyalty. Summary judgment for Δ

Rule 57. Declaratory Judgments
       Procedure follows §2201
       Allows party normally the Δ to preempt a lawsuit by getting declaration of rights

Rule 58. Entry of Judgment
       Final when entered by the clerk

Rule 59. New Trials; Amendments of Judgments
    (a) Grounds. “Any of the reasons for which new trials have heretofore been granted in actions” at law
        or in equity “in the courts of the United States”
    (b) Time for Motion. NLT 10 days after entry of judgment

Rule 61. Harmless Error
       No error … is ground for granting a new trial or for setting aside a verdict . . . unless refusal to
        take such action appears to the court inconsistent with substantial justice.
       Disregard any error or defect ... which does not affect the substantial rights of the parties

Rule 65. Injunctions
    (c) “No restraining order or preliminary injunction shall issue except upon the giving of security by
        the applicant …”
        Sigma Chemical Company v. Harris (deciding on injunctive relief requires a balancing of
        interests of the parties)
        Harris goes to work for Sigma‟s competitor and violates agreement not to disclose trade secret of
        customer list. Sigma requests injunctive relief to keep him quiet and gets it because it would
        suffer greater harm from not getting the relief than he will from being silenced.




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Civil Procedure I – Baird                                                                  Aaron D. Lindstrom
Federal Rules

         Inglis & Sons Baking Co v ITT Continental Baking Co (decisions on preliminary relief must
         weigh both likelihood of Π winning and difference in harm if wrong decision to grant or not)
         Fuentes v Shevin (preliminary relief cannot violate due process protections)
         Π bought stove (with a service plan) from Firestone (Δ) on payment plan. After dispute over
         service plan, Δ had stove repossessed without notice and sheriff took it without any hearing.

Rule 68. Offer of Judgment
        If Δ (of a given claim) offers to settle and Π rejects and Π wins a settlement worth less than the
         offer, Π must pay the Δ‟s costs of having making the offer


Relevant portions of the Constitution
Amendment VII
In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by
jury shall be preserved, and no fact tried by a jury , shall be otherwise reexamined in any Court of the
United States, than according to the rules of the common law.


Relevant portions of Title 28 U.S.C.
§455. Judicial Recusal
    (a) Shall “disqualify himself in any proceeding in which his impartiality might reasonably be
        questioned.”
    (b) Shall “also disqualify himself in the following circumstances:”
    (e) Grounds under (b) cannot be waived by the parties
         In re Hatcher (judge should recuse himself if his impartiality might reasonably be questioned)

§651. Authorization of Alternative Dispute Resolution

§657. Arbitration Award and Judgment
    (a) Arbitration awards shall be entered as judgments and “shall not be subject to review in any other
        court by appeal or otherwise.”

§1291. Final Decisions of District Courts
        Courts of appeals “shall have jurisdiction of appeals from all final decisions”

§1292. Interlocutory Decisions
    (a) Courts of appeal shall have jurisdiction of appeals from … injunctions
    (b) Certifying “a controlling question of law as to which there is substantial ground for difference of
        opinion and that an immediate appeal from the order may materially advance the ultimate
        termination of the litigation …”

§1332. Diversity of Citizenship; Amount in Controversy; Cost

§2201. Declaratory Judgments
    (a) Declare “the rights and other legal relations of any interested party seeking such declaration,
        whether or not further relief is or could be sought”  “force and effect of a final judgment”




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