CIVIL PROCEDURE OUTLINE 2006 (Struve)
14th amendment ..................................... 4 Defensive Non-Mutual Collateral
28 U.S. C. §1441 ................ See Removal Estoppel........................................... 61
28 U.S.C. § 1391 .................... See Venue Depositions ......................................... 32
28 U.S.C. §1331 .... See Federal Question DISCOVERY..................................... 30
Jurisdiction Discovery Sanctions............................ 35
28 U.S.C. §1332 ................ See Diversity Diversity Jurisdiction .......................... 10
Jurisdiction domicile................................................. 4
28 U.S.C. §1367 .......... See Supplemental due process ............................................ 4
Jurisdiction Edmondson v. Leesville Concrete Inc . 49
28 U.S.C. §1404 ....See Change of Forum Entry of judgment ............................... 52
28 U.S.C. §1927 .................................. 17 Exxon Mobil Corp. v. Allapattah
Access Now, Inc. v. Southwest Airlines, Services, Inc. ............................. 25, 30
Co .................................................... 18 Fairview Park v. Al-Monzo Construction
Additur ................................................ 50 Co .................................................... 24
Amendment of Pleadings .................... 21 Federal Question Jurisdiction ........... 8, 9
amount in controversy................... 10, 11 Federal Rule of Evidence 612 ............. 39
Anderson v. Liberty Lobby, Inc ........... 44 Federated Department Stores, Inc. v.
Appeals ............................................... 54 Moitie ........................................ 57, 58
Asahi Metal Industry Co. v. Superior Final Judgment Rule‖ ......................... 55
Court ................................................. 6 Forum non conveniens ........................ 14
Attorney-Client Privilege .................... 37 General jurisdiction ............................See
Blonder Tongue Laboratories Inc. v. General verdict .................................... 49
University of Illinois Foundation .... 61 General verdict with interrogatories ... 50
Burden of Persuasion .......................... 43 Grable and Sons Metal Products Inc. v.
Burden of production .......................... 43 Darue Engineering and
Burger King v. Rudzewicz ..................... 5 Manufacturing................................... 9
Burnham v. Superior Court of California Harmless Error‖ Rule .......................... 55
........................................................... 7 Helzberg’s Diamond Shops v. Valley
Celotex Corp. v. Catrett ...................... 45 West Des Moines Shopping Center . 26
Certification ........................................ 32 Hickman v. Taylor ............................... 39
Change of Forum ................................ 14 impleader of third parties ..... See Rule 14
Civil Docket ........................................ 53 in personam jurisdiction ............... 4, 7, 8
Class Action ........................................ 30 in rem jurisdiction ................................. 5
Code pleading ..................................... 15 International Shoe Co. v. Washington .. 6
collateral estoppel ............. 56, 59, 60, 61 Interrogatories ..................................... 33
Colston v. Barnhart............................. 44 Intervention by third parties . See Rule 24
Compulsory counterclaims ................. 23 Jones v. Flowers.................................... 8
Compulsory Joinder of Parties ............ 26 Jones v. Ford Motor Credit Company 12,
Conference of parties .......................... 32 24
corporations..................................... 4, 14 Judgment ............................................. 52
Counterclaims ..................................... 11 Judgment as a matter of law................ 51
cross-claims................................... 23, 28 Judgment by Default ........................... 46
JURISDICTION ................................. 4
Jury Selection ...................................... 48 Reasonableness test ........... See minimum
Jury Verdicts ....................................... 49 contacts
Kedra v. City of Philadelphia ............. 25 Relief from Judgment or Order ........... 53
Lassiter v. Department of Social Remittitur ............................................ 50
Services ............................................. 4 Removal .............................................. 13
Leatherman v. Tarrant County Narcotics Requests for admission ....................... 34
and Coordination Unit .................... 17 Res judicata ................................... 56, 58
Levy v. Kosher Overseers Association of Right to Trial by Jury .......................... 47
America, Inc .................................... 59 Rule 11 .............................. 15, 16, 17, 20
Louisville and Nashville RR. Co. v. Rule 12 ........................ 17, 18, 19, 20, 28
Mottley .............................................. 9 Rule 13 .............................. 23, 24, 25, 28
Mandatory disclosures ........................ 30 Rule 14 ........................ 12, 13, 27, 28, 29
mandatory joinder of parties See Rule 19 Rule 15 .......................................... 21, 22
Mas v. Perry ........................................ 10 Rule 16 .......................................... 32, 42
Matsushita Elec. Co. v. Zenith Radio Rule 18 .......................................... 23, 29
Corp ................................................ 44 Rule 19 .............................. 12, 19, 26, 27
Matthews v. Eldridge ............................ 4 Rule 20 .......................................... 12, 25
McGee v. International Life Insurance Rule 23 ................................................ 30
Co ...................................................... 7 Rule 24 .......................................... 12, 29
Mecom v. Fitzsimmons Drilling .......... 13 Rule 26 .................................... 30, 31, 32
minimum contacts ................. 4, 5, 6, 7, 8 Rule 30 ................................................ 33
Motion for a new trial ......................... 52 Rule 33 .......................................... 33, 34
Mullane v. Central Hanover Bank & Rule 34 .......................................... 34, 36
Trust Co. ........................................... 8 Rule 35 ................................................ 34
Notice pleading ................................... 15 Rule 36 .................................... 31, 34, 37
Offensive Non-Mutual Collateral Rule 37 ........................ 32, 35, 36, 37, 42
Estoppel........................................... 61 Rule 38 .......................................... 47, 48
Offer of Judgment ............................... 42 Rule 39 ................................................ 48
Owen Equipment & Erection Co. v. Rule 41 .................................... 40, 41, 57
Kroger ............................................. 29 Rule 42 ................................................ 23
Parklane Hosiery v. Shore .................. 61 Rule 48 ................................................ 48
Pennoyer v. Neff ................................ 4, 8 Rule 49 ................................................ 50
Peremptory Challenges ....................... 49 Rule 50 .......................................... 51, 52
Perkins v. Benguet Consolidated Mining Rule 51 ................................................ 49
Company ...... See General Jurisdiction Rule 54 ................................................ 52
Permissive counterclaims.................... 24 Rule 55 .......................................... 45, 46
Permissive joinder of parties See Rule 20 Rule 56 ................................................ 44
Physical and Mental Examinations ..... 34 Rule 58 ................................................ 52
PLEADINGS ..................................... 15 Rule 59 .................................... 52, 53, 54
Prayer for relief ................................... 18 Rule 60 .................................... 46, 53, 54
Pretrial conferences ............................. 42 Rule 68 ................................................ 42
Production of Documents and Things Rule 69 ................................................ 53
and Entry Upon Land for Inspection Rule 7 ............................................ 20, 21
and Other purposes ......................... 34 Rule 79 ................................................ 53
Protective orders ................................. 31 Rule 8 ...................................... 15, 17, 20
quasi in rem jurisdiction ....................... 5 Rule 9 .................................................. 17
Scope of discovery .............................. 31 The Reply ............................................ 21
Settlement ........................................... 41 United Mine Workers v. Gibbs............ 11
Seventh Amendment ........................... 47 Upjohn Co. v. United States ................ 38
Shaffer v. Heitner .................................. 8 Venue .................................................. 13
Special verdict ..................................... 50 Voir Dire ............................................. 48
Specific jurisdiction .............................. 7 Voluntary Dismissal............................ 40
Spurlin v. General Motors Corp ......... 52 Washington State Physicians Insurance
Staats v. County of Sawyer.................. 58 Exchange & Association v. Fissons
Strawbridge v. Curtiss ........................ 10 Corporation..................................... 35
stream of commerce .......................... 6, 7 Well-Pleaded Complaint‖ rule .............. 9
Subject Matter Jurisdiction ................... 8 Work-Product Privilege ...................... 39
summary judgment.............................. 30 World Wide Volkswagen Corp. v.
Summary Judgment ...................... 42, 44 Woodson ............................................ 6
Supplemental Jurisdiction 11, 12, 24, 25, Worthington v. Wilson ........................ 22
27, 29, 30 Writ of Mandamus .............................. 56
Temple v. Synthes Corp....................... 26 Zuk v. Eastern Pennsylvania Psychiatric
Territorial Jurisdiction ...................... 4, 5 Institution of the Medical College of
The Answer ......................................... 20 Pennsylvania ................................... 16
The Complaint .................................... 17
I. Due Process
a. 14th amendment
i. Gives everyone the right to ―due process of law.‖ In Lassiter v.
Department of Social Services the Supreme Court stated that, while
the term is so vague as to avoid precise definition, it expresses the
requirement of ―fundamental fairness.‖
b. What are the requirements of due process ? The Matthews v. Eldridge test
i. Determination of due process requires balance of three factors:
1. Private interests
2. Government interests
3. The risk that the procedures used will result in erroneous
II. Territorial Jurisdiction , General
a. In personam
i. Generally: in personam jurisdiction is jurisdiction over a specific
1. Pennoyer v. Neff : Courts have always traditionally had
jurisdiction over any person within their state and over all
of the land within the state.
1. Natural persons
a. physical presence
i. presence + intent to stay
i. by appearance
ii. by contract
iii. by seeking a license to do business in the
d. long-arm statutes
b. corporate presence
d. long-arm statutes
a. Jurisdiction only over the individual only in the
context of the specific act that satisfies the
minimum contacts standard.
a. Jurisdiction over any claim in the state, even one
completely unrelated to in state activities if the
person‘s (corporate or physical) activities are
―continuous and systematic.‖
b. In Rem
i. Generally: in rem jurisdiction concerns the relationship of all
parties who might have an interest in a piece of land. (e.g., quiet
c. Quasi in rem
i. Generally: quasi in rem jurisdiction concerns a single individual‘s
relationship with a piece of property.
ii. Type One
1. resolves the rights of only certain claimants to a property
(e.g., foreclosure on a mortgage)
iii. Type Two
1. establishes rights to the property, but the underlying action
does not concern the property (e.g., tort or contract claims
against defendant who owns property).
2. In this action, property brought under jurisdiction by
attachment of court.
III. Bases for Territorial Jurisdiction
a. In Personam
i. General Notes on Approach
1. Is there a statutory basis for jurisdiction (in Federal
Court, look to state’s long-arm statute)?
2. Does the constitution permit the exercise of personal
a. First, see if minimum contacts . If minimum
b. Five-factor test to determine if decision would
comport with “traditional notions of fair play
and substantial justice.”
1. look at state‘s long-arm statutes
2. Federal courts allowed to exercise jurisdiction over a
person who would be subject to jurisdiction by the courts of
the state where the district court sits (FRCP Rule 4(k)(1).
iii. Constitutional analysis
1. minimum contacts
a. a focus on the defendant’s contacts
i. including imputed contacts
b. Requirements (Burger King v. Rudzewicz )
i. that the defendant could reasonably foresee
the possibility of litigation in a state.
1. This ―foreseeability‖ approach
cannot be taken too far—O‘Connor‘s
opinion in Asahi indicates that intent
is also an important factor.
ii. that the defendant purposefully directed
commercial activities at a particular state.
c. Factors to consider in context of contract (Burger
i. Prior negotiations and contemplated future
ii. Terms of the contract
iii. Parties‘ course of dealing
d. ―stream of commerce ‖
i. extends only to the place where the
consumer buys the item (e.g. if I buy a car in
New York and it explodes there, the
company is liable to suit there. If I drive to
Nebraska and it explodes there, the company
had no reason to expect to be subject to
ii. Mere awareness that a product is being used
in a state is probably not enough—the
company must intend to get its product in
that market (J. O‘Connor in Asahi).
i. International Shoe Co. v. Washington
1. jurisdiction valid as long as it does
not offend ―traditional notions of fair
play and substantive justice.‖
2. by acting within a state, corporation
gains protections and benefits of the
law of that state—also has the
obligations imposed by that state.
ii. World Wide Volkswagen Corp. v. Woodson
1. Foreseeability is not, by itself,
sufficient to establish minimum
2. The question to ask is whether a
corporation could reasonably have
anticipated that it would be brought
to court in a given state.
iii. Asahi Metal Industry Co. v. Superior Court
1. Minimum contacts must have been
on purpose (O‘Connor, in plurality)
iv. Burger King v. Rudzewicz
1. Minimum contacts requires both that
the defendant be able to reasonably
foresee the possibility of litigation in
a state and that the defendant
purposefully direct commercial
activities at a state.
f. Purpose of minimum contacts
i. protects defendants from litigating in an
ii. Acts to ensure that states do not usurp the
rights of other states.
iii. Due Process clause gives predictability.
Defendants should be able to structure their
conduct to subject themselves to possibility
of suit when that risk is in their interest.
2. Reasonableness test (balance of five factors)
a. Burden on the Δ
b. Interests of the Π
c. Interest of the state in having a forum for its citizens
d. Burden on the court system
e. Shared interest among states in substantive social
3. General jurisdiction (continuous and systematic) (Perkins
v. Benguet Consolidated Mining Company )
i. Presence + intent to remain
c. Doing business
4. Specific jurisdiction (McGee v. International Life
a. Arise/relate from act
c. Who initiated the contacts?
d. Purposefully directed
e. ―stream of commerce ‖
iv. Special cases
1. in-state service (Burnham v. Superior Court of California )
a. A court can acquire jurisdiction over a defendant if
that defendant is served with process while visiting
the state in which suit in brought.
3. status cases (marriage, divorce)
b. In Rem
1. look at state‘s long-arm statutes
ii. Constitutional analysis
1. Cases brought quasi in-rem are still subject to the
minimum contacts analysis used for in personam
c. Quasi in rem
ii. Constitutional analysis
1. Cases brought quasi in-rem are still subject to the
minimum contacts analysis used for in personam
a. Pennoyer v. Neff : a court can acquire jurisdiction
by attaching a defendant‘s property before the trial
b. Shaffer v. Heitner
i. All assertions of state court jurisdiction—
including those brought quasi in rem—
should proceed according to minimum
IV. Notice /Service
a. Service is distinct from jurisdiction. Just because someone has been
served does not necessarily mean that the court has jurisdiction.
Conversely, just because the court has jurisdiction does not mean that the
defendant can be called into court with insufficient notice.
b. Notice must be such as is reasonably calculated to reach the interested
parties (Mullane v. Central Hanover Bank & Trust Co. ).
i. What would a reasonable person who actually wanted to provide
notice do? (Jones v. Flowers )
c. Questions to ask when considering constitutionality of service of process
i. What is the government‘s interest?
ii. What is the individual‘s interest?
iii. What method of service was chosen?
iv. What are the alternative methods of service?
V. Subject Matter Jurisdiction
i. Specialization—judges in federal courts will acquire expertise in
ii. Life-time appointment shields decisions from locally powerful
iii. Federal interest in protecting federal jurisprudence
iv. Predictability and uniformity in questions of federal law.
b. Federal Question Jurisdiction
i. Constitutional analysis
1. Article III provides that Congress can give the federal
courts jurisdiction over ―all Cases, in law and Equity,
arising under this constitution, the Laws of the United
States, and Treaties made, or which shall be made, under
2. Just because the courts have the constitutional right to
exercise jurisdiction, doesn‘t mean they have the statutory
ii. Statutory analysis
1. 28 U.S.C. §1331 —Federal Question Jurisdiction
i. ―The district courts shall have original
jurisdiction of all civil actions arising under
the Constitution, laws, or treaties of the
i. ―Well-Pleaded Complaint‖ rule: Federal
courts acquire jurisdiction ONLY when the
complaint brought forward by the plaintiff
asserts a claim under federal law or under
the constitution. (Louisville and Nashville
RR. Co. v. Mottley )
1. when a federal law has completely
pre-empted state law, then making a
state-law claim will be the same as
making a claim under federal law
(e.g., certain labor provisions, like
a. See Grable and Sons Metal
Products Inc. v. Darue
Supreme Court held that a
state law claim could give
rise to federal question
jurisdiction as long as the
case will turn on an
application of federal law.
i. ―The question is, does
a state-law claim
necessarily raise a
stated federal issue
actually disputed and
substantial, which a
federal forum may
approved balance of
federal and state
iii. State/Federal law entanglements
1. Two-prong test to see if federal
jurisdiction for claim under state law
that has federal elements
a. Must prove that it won‘t
upset balance of labor
between state and federal
b. Federal interest must be
―substantial and weighty.‖
c. Diversity Jurisdiction
i. General: Parties must be completely diverse and the amount in
controversy must exceed $75,000. See Mas v. Perry .
a. Protect out-of-staters from local prejudice
b. Uniformity of law
ii. Constitutional analysis
1. Article III of the constitution provides that Congress can
give federal courts jurisdiction over controversies ―between
citizens of different states.‖
iii. Statutory analysis
1. 28 U.S.C. §1332 —Diversity Jurisdiction
i. §1332 (c): Corporation
1. a citizen of the state in which it is
incorporated and of the state where it
has its principal place of business
ii. §1332: Unincorporated associations
1. a citizen of the state where it has its
principal place of business and the
state under whose laws it is
iii. Class action fairness act--§1332(d)
1. no need for complete diversity in
class-actions. Now, Π class must be
diverse from Δ class.
2. amounts in controversy can be
aggregated by every individual
within the class.
i. Parties must be ―completely diverse‖—all
the plaintiffs must be of different citizenship
than all the defendants. (Strawbridge v.
1. if domiciliary, then a citizen
iii. Amount in controversy
1. Legal Certainty test
a. If defendant wants to keep a
claim out of federal court on
grounds that amount in
controversy requirement is
not met, he or she must prove
―to a legal certainty‖ that
plaintiff will not recover
more than $75,000.
a. Plaintiff can aggregate all
claims in a single complaint
to meet requirement.
b. Multiple plaintiffs (unless
class action) cannot
aggregate their claims.
c. Counterclaims are not
considered part of the amount
in controversy .
VI. Supplemental Jurisdiction
i. Supplemental jurisdiction allows a court to adjudicate a state law
claim that arises out of an act that also created a claim under
b. Constitutional analysis
i. Article III gives congress the power to confer jurisdiction on all
cases. This suggests that multiple claims, some being federal some
being state, can be tried in federal court as one ―case.‖
ii. The state and federal claims must arise ―from a common nucleus
of operative fact.‖ (United Mine Workers v. Gibbs )
1. question: does this go to limit of Article III authorization?
This question has not been answered by the courts.
c. Statutory analysis
i. 28 U.S.C. §1367 —Supplemental Jurisdiction
1. §1367 (a)
a. ―In any civil action of which the district courts have
jurisdiction, the district courts shall have
supplemental jurisdiction over all other claims that
are so related to claims in the action within such
original jurisdiction that they form part of the same
case or controversy under Article III of the United
i. Seems to give courts maximum jurisdiction
allowed by Article III.
a. If the plaintiff is proceeding based on diversity
jurisdiction, the court does not have subject matter
jurisdiction over claims by plaintiffs against anyone
i. Rule 14 : impleader of third parties
ii. Rule 19 : mandatory joinder
iii. Rule 20 : Permissive joinder
iv. Rule 24 : Intervention by third parties
b. The court may not extend supplemental jurisdiction
i. By persons joined as plaintiffs under Rule
ii. By persons seeking to intervene as plaintiffs
under rule 24
iii. WHEN exercising supplemental jurisdiction
would be inconsistent with the requirement
for complete diversity.
a. allows court to refuse to assert supplemental
i. the claim raises a novel or complex issue of
ii. the claim substantially predominates over
the claim or claims over which the district
court has original jurisdiction
iii. in exceptional circumstances, there are other
compelling reasons for declining
b. Second Circuit holds in Jones v. Ford Motor Credit
Company that discretion under 1367(c) should only
be exercised when the court can identify ―truly
compelling‖ circumstances. The court should also
not decline jurisdiction unless doing so would
promote economy, convenience, fairness and
a. statute of limitations tolling continues for
supplemental claims, including state-law claims,
while the claims are pending in federal court
ii. If the federal law claim is merely an ―appendage‖ to a state law
claim, the case should be remanded to state court.
d. Supplemental Jurisdiction and Joinder
1. Under §1367(a) there is supplemental jurisdiction over
ALL claims that are joined with claims for which there is
already subject matter jurisdiction even if there would be
no subject matter jurisdiction over the claims if those
claims were standing alone.
2. Supplemental jurisdiction applies to counterclaims
brought under rule 13 in BOTH diversity and subject
matter jurisdiction cases.
1. supplemental jurisdiction cannot be granted over claims
joined under Rule 14 , 19, 20, or 24 if the underlying claim
is one grounded in diversity.
i. To be removable, it must be the case that the complaint could
originally have been filed in federal court.
ii. Attempts to avoid removal
1. Plaintiff is ―master of the complaint‖—plaintiff can avoid
federal court by not making federal law claims.
2. Plaintiffs can assign interest to a non-diverse party to defeat
diversity (Mecom v. Fitzsimmons Drilling Co .)
3. Plaintiffs can defeat removal by joining defendants who
destroy diversity. BUT this must be done in good faith and
not just to defeat diversity.
iii. Remands to state court after an attempted removal are generally
not subject to appeal unless the removal was attempted under
iv. Rule of unanimity: all defendants must agree to remove a case to
federal court before it can be removed
b. Removal Under subject matter jurisdiction—28 U.S. C. §1441 (a)
i. Any civil action brought in state court of which the district courts
have original jurisdiction may be removed by the defendants.
c. Removal Under diversity jurisdiction
i. Removal is unavailable if any defendant is a citizen of the state in
which the suit is brought. (§1441 (b))
1. plaintiffs can avoid federal court by claiming damages less
than $75,000.01 even if they might be entitled to more.
d. Removal Process: 28 U.S.C. §1446
i. Must be filed in the district in which the state court sits.
ii. Removal from state court is automatic. Can only be challenged in
the federal court by a motion for remand.
1. motion for remand must be made within 30 days of
removal (§1447 (c))
iii. Notice of removal must be given within 30 days of notice to
a. Statutory provisions
i. 28 U.S.C. § 1391
1. §1391 (a)—diversity cases
a. After jurisdiction established, action can be brought
i. The judicial district in which any defendant
resides, if all defendants reside in the same
ii. A judicial district in which a substantial part
of the events giving rise to the claim, or
where a substantial part of the property
under controversy, is located.
iii. A judicial district is which any defendant
may be found, if there is not district where
the action can otherwise be brought.
2. §1391 (b)—subject matter cases
a. see above
3. An alien may be sued in any district
4. corporations reside in any judicial district in which it is
subject to personal jurisdiction at the time the action is
b. Change of Forum: 28 U.S.C. §1404
i. Civil action may be transferred for the convenience of parties and
witnesses to any other district or division where it might have been
ii. Upon motion, consent or stipulation of all parties, any action can
be transferred, at the discretion of the court, to any division in the
c. Forum non conveniens
1. a common law doctrine that allowed defendants to have a
case dismissed because of an inconvenient forum.
2. Generally invoked at discretion of trial court and not
subject to appeal.
3. Now generally not invoked because it can be simply be
transferred to the appropriate forum under §1404
ii. Factors governing dismissal (Gilbert )
a. Relative ease of access to sources of proof
b. Availability of compulsory process for witnesses
c. Cost of obtaining witnesses
d. Possibility of view of premises
e. Ability to enforce judgment
a. Court congestion
b. Unfairness of burdening non-related citizens with
c. Interest in having localized disputes tried at home
d. Interest in trying case in forum familiar with local
e. Interest in avoiding unnecessary conflict of laws.
I. Pleadings , general
i. Function of pleading
1. simply to provide notice to the other party of the pendency
of the action and the nature of the pleader‘s contention in
order to facilitate informed preparation for discovery,
settlements, or disposition on a more complete factual
ii. Notice pleading
1. used in federal district court and most state courts.
2. FRCP Rule 8 (a)
a. Complaint need only provide ―a short and plain
statement of the claim showing that the pleader is
entitled to relief.‖
iii. Code pleading
1. used in a minority of state courts (but minority includes NY
2. requires somewhat more than notice pleading.
i. Pleadings Allowed— FRCP Rule 7a
1. ―there shall be a complaint and an answer; a reply to a
counterclaim…an answer to a cross-claim…a third party
complaint, if a person who was not an original party is
summoned under the provisions of rule 14; and a third
party answer, if a third party complaint is served.‖
2. All other pleadings are motions.
ii. FRCP Rule 8 —General rules of pleading
a. All pleadings shall contain
i. A short and plain statement of jurisdiction
unless the claim needs no new grounds
ii. A short and plaint statement of the claim
showing that pleader is entitled to relief
iii. A demand for judgment for the relief the
a. pleading shall be simple, concise and direct.
b. Pleadings in the alternative are permitted
i. Within the bounds of Rule 11 (b), which sets
standard for representations to the court.
iii. FRCP Rule 11 (sanctions on pleadings)
a. Serves a policing function. Designed to prevent
2. Summary of Rule 11 :
a. Requires that every pleading, motion or other paper
must be signed
b. Declares that the signature shall be treated as
certification that the document
i. Has been prepared after a REASONABLE
investigation and that to the best of the
signer‘s knowledge, information, and belief
the document meets minimum standard of
factual merit, legal merit and lack of
c. Imposes sanctions on those who violate the rule
i. Sanctions can be non-monetary (and often
d. See Zuk v. Eastern Pennsylvania Psychiatric
Institution of the Medical College of Pennsylvania
(court ruled that attorney failed to make a
reasonable investigation into factual or legal
contentions implied in complaint. Court held that
sanctions for violation of rule 11 should be enough
to deter similar conduct in future).
3. Rule 11 (b)
a. By presenting a pleading, motion or other paper to
the court, an attorney certifies that the respective
representation to the court is:
i. NOT being presented for an improper
ii. That the claims are warranted in existing
law or a by a nonfrivolous argument for
modification of the law
iii. The allegations have evidentiary support or
are likely to get support after discovery.
4. Mechanics of Rule application
a. Motion is made separately from other motions.
b. Shall NOT be filed for 21 days after service to
i. During the 21 days, opposing party can
withdraw or correct their pleading
ii. The ―safe harbor‖ provision
c. Nature of the sanctions
i. ―shall be limited to what is sufficient to
deter repetition of such conduct or
comparable conduct by others similarly
ii. Can be non-monetary
iii. Can be an order to pay a penalty into court
1. can order offending party to pay all
of some of the reasonable attorney‘s
fees accrued by the innocent party ―if
imposed on motion and warranted
for effective deterrence.‖
5. Parties subject to Rule 11
a. Clients cannot be forced to pay monetary damages
under Rule 11 (b)(2) (requirement of legal merit)
iv. 28 U.S.C. §1927
1. allows a district court to award costs against an attorney
who ―multiplies proceedings in any case unreasonably and
a. Narrower in scope than rule 11
b. ―vexatiously‖ has been interpreted to mean
subjective bad faith.
i. Burden of pleading
1. plaintiff must plead all the elements of a claim
ii. burden of production
1. must bring forth facts and evidence to sustain claim
iii. burden of persuasion
1. party with burden of persuasion bears risk of non-
d. Heightened pleading standards
i. FRCP Rule 9
1. Rule 9 (b)
a. fraud or mistake must be pleaded with particularity.
b. Motion to dismiss a claim under rule 9(b) is the
functional equivalent of a motion to dismiss under
Rule 12 (b)(6)
ii. Generally, heightened pleading standards are not imposed.
1. see Leatherman v. Tarrant County Narcotics and
Coordination Unit (court found that 5th‘s circuits rule for
pleadings under §1983 was a heightened pleading
2. All the Rules require is a ―short and plain statement‖ of the
claim under Rule 8 (a)
II. The Complaint
i. Commences the action in a court of law
ii. BUT does not toll statute of limitations —tolling requires an actual
service of process.
1. must serve summons and complaint within 120 days of
b. Requirements for federal court
i. a short and plain statement of the grounds of the court‘s
ii. a short and plain statement of the claim showing that the pleader is
entitled to relief
iii. a demand for judgment for the relief the pleader seeks.
c. Prayer for relief
i. if the suit is contested by the defendant, the relief is not limited to
the kind described in the prayer. BUT, if defendant fails to answer
and a default judgment is entered, the relief is limited to that
sought in the prayer.
III. Defenses and Objections to the Complaint
a. Rule 12
i. Rule 12 (b)
1. Following defenses must be made before pleading if a
further pleading is permitted
a. lack of jurisdiction over the subject matter
b. lack of jurisdiction over the person
c. improper venue
d. insufficiency of process
e. insufficiency of service of process
f. failure to state a claim under which relief can be
g. failure to join a party under rule 19
2. Rule 12 (b)(6)
a. When filed, judge will read the complaint as though
all of the facts are true. To prevail on a 12(b)(6)
motion, it must be the case that no recovery would
be possible under ANY legal theory.
b. Supreme court has said that ―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
entitle him to relief.‖
c. Judgment on a 12(b)(6) motion can be appealed.
d. After a 12(b)(6) motion has been entered, plaintiff
is often given leave to amend.
e. If 12(b)(6) claim also functions as an answer, the
court is likely to invoke rule 56 and grant a
continuance for discovery.
f. See Access Now, Inc. v. Southwest Airlines, Co .
Court rules that complaint put forth by Access Now
fails to state a claim under the Americans with
Disabilities Act because a website is not a place of
public accommodation under the act.
ii. 12(c)—Motion for judgment on the pleadings
1. This is similar to a 12(b)(6) motion but is made after the Δ
has filed an answer.
2. the legal standard for granting or denying a 12(c) motion is
the same as that for a rule 12(b)(6) motion.
iii. 12(e)—motion for a more definite statement
1. ―If a pleading to which a responsive party is permitted is so
vague or ambiguous that a party cannot reasonably be
required to frame a responsive pleading, the party may
move for a more definite statement before interposing a
2. often not granted on the grounds that discovery will make
3. Can be made either by the Δ in response to complaint or by
Π in response to answer
4. If Granted
a. Respondent to the motion is required to replead in a
more detailed manner
5. If not granted
a. Not appealable
b. Respondent must then file the applicable responsive
a. ―does the pleading give the party enough
information from which to draft an answer and
i. Motions under rule 12 must be made either before the next
pleading as an independent motion or in the next required pleading
ii. Motions that can be made at ANY time
1. failure to state a clam upon which relief can be granted:
2. failure to joint an indispensable party under Rule 19
3. failure to state a legal defense to a claim
4. lack of subject matter jurisdiction (can be brought up on
court‘s own recognizance)
iii. ALL OTHER MOTIONS UNDER RULE 12 ARE WAIVED IF
NOT FILED INDEPENDENTLY BEFORE THE NEXT
REQUIRED PLEADING OR IN THAT PLEADING ITSELF!!
1. Rule 12 (g)—if a party makes a motion under rule 12, they
can join as many other rule 12 motions as possible. BUT,
those rule 12 motions must be made at the SAME TIME.
2. The following defenses are waived if not inserted into an
independent motion before the pleading or in the
responsive pleading itself (or an amendment thereto made
under rule 15)
a. Lack of jurisdiction over the person
b. Improper venue
c. Insufficiency of process
d. Insufficiency of service of process
IV. The Answer
i. Rule 7(a)
1. An Answer is the responsive pleading to
a. A complaint
b. A cross claim
c. A third-party claim
2. Must be signed
3. Subject to Rule 11
ii. Rule 8 (b)
1. ―A party shall sate in short and plain terms the party‘s
defenses to each claim asserted and shall admit or deny the
averments upon which the adverse party relies.‖
2. If party does not have enough information to deny, they can
say this and that constitutes a denial.
iii. Rule 8 (c)
1. Affirmative defenses must be put into the answer.
iv. Rule 8 (d)
1. if averments in a pleading are not denied, then they are
2. This means that evidence later proving the admitted issue is
b. Denials in the answer
i. Legal consequences
1. imposes on the plaintiff the burden of proving the
i. Rule 12 (a)
1. Answer must be served within 20 days of the complaint
i. Government has 60 days to file an answer
ii. If Δ makes a motion under rule 12 and that
motion is either denied or postponed for
later disposition, then Δ has only 10 days
from notice of the courts action to file the
iii. If Δ has waived formal service under rule
4(d), then has 60 days to file the answer
1. 60 days begins from the date when
the request for a waiver was sent.
2. 90 days if Δ is outside the United
V. The Reply
a. Rule 7 (a)
i. Plaintiff is allowed to reply to a counterclaim
ii. Court may order plaintiff to reply to an answer or third-party
i. Reply must be filed within 20 days after service of the answer.
VI. Amendment of Pleadings —Rule 15
a. An amended pleading displaces the prior pleading.
b. Rule 15 (a)
i. Amendment ―as a matter of course‖
1. ―A party may amend the party‘s pleading once as a matter
of course at any time before a responsive pleading is
a. If no responsive pleading is permitted and the action
has NOT been placed on the trial calendar, then
amendment can be made within 20 days of initial
ii. Response to amended pleading
1. response to an amended pleading must be made in the
longer of either
a. the time remaining for the response or
b. within 10 days after service of the amended
iii. If Amendment is not made before a responsive pleading has been
filed, then amendment is only allowed ―by leave of court or by
written consent of the adverse party.‖
1. ―leave shall be given when justice so requires.‖
c. Rule 15 (b)
i. Amendments to pleadings made in response to evidence introduced
1. if the issues not raised by pleading are tried by express or
implied consent of the parties, then the rule directs that the
pleading be allowed to conform to the evidence presented.
2. if a party objects to evidence at trial because it is not within
the framework established by the pleadings, then the rule
directs the court to allow amendment of the pleadings
―freely when the presentation of the merits of the action
will be subserved thereby and the objecting party fails to
satisfy the court that the admission of such evidence would
prejudice the party in maintaining the party‘s action or
defense upon the merits.‖
d. Rule 15 (c)—Relation back
i. Important for situations involving statute of limitations
1. amendment of pleading relates back to date of the original
pleading if the relation back is permitted by the law that
provides the applicable statute of limitations .
iii. Rule 15 (c)(2)
1. permits relation back of new claims in an amended
pleadings if the claim or defense ―arose out of the conduct,
transaction, or occurrence‖ set forth in the original
iv. Rule 15 (c)(3)
1. Used to change the name of a party
a. Must meet Rule 15 (c)(2)
b. The party to be brought in under the amendment
must, within 120 days of service of summons and
i. ―have received such notice of the institution
of the action that the party will not be
prejudiced in maintain a defense on the
ii. Have known or should have known that the
action would have been brought against the
party without the mistake
3. See Worthington v. Wilson . (Illinois district court does not
allow relation back of named defendants when defendants
were unknown in original pleading because the amendment
was not correcting a ―mistake.‖)
e. Rule 15 (d)
i. Supplemental pleadings are those that set forth events that have
transpired since the original pleading (they do not AMEND the
ii. Requires leave of the court.
a. Joinder rules determine the size and complexity of litigation
b. Modern view of joinder
i. Very liberal joinder rules
ii. NOTE: the liberal joinder rules make it possible for an parties to
join claims and parties that are not permitted under federal subject
iii. The FRCP CANNOT EXPAND THE SUBJECT MATTER
JURISDICTION of the federal courts. EACH CLAIM MUST BE
II. Joinder of Claims
a. Rule 42
i. Allows for consolidation of actions involving ―a common question
of law or fact.‖
ii. Also allow the court to order separate trials on any claim.
iii. This rule helps to make cases manageable given the very liberal
iv. Decision made under rule 42 not reviewable until final judgment.
1. this means that appellate court will have to decide if choice
was so bad as to justify retrial
b. Rule 18 (a)
i. Any party asserting a claim for relief may join ANY other claim to
1. no requirement that claims be related to one another (but
must be brought by same party in same pleading)
ii. NOTE/CAUTION: this permits claims to be joined that are not in
subject matter jurisdiction of court
1. BUT NOTE: Once a party has made a claim the court has
the power to hear under federal subject matter jurisdiction,
rule 18 allows the party to attach extra claims not
independently supported by subject matter jurisdiction, but
that may be supported by supplemental jurisdiction.
a. See Fairview Park Excavating Co. v. Al Monzo
Construction Co. where court assumed jurisdiction
over Pennsylvania corporation‘s cross claim against
fellow Pennsylvania citizen under supplemental
jurisdiction even when the original diversity claim
had been dismissed on its merits.
c. Rule 13 —counterclaims and cross-claims
i. Compulsory counterclaims —Rule 13 (a)
1. NOTE: Make sure to check for the possibility of
compulsory counterclaims for EACH party any time a
claim is made against them (cross claim, etc.)
2. Test for compulsory counterclaims
a. A counterclaim is compulsory if there is a ―logical
relationship‖ between the counterclaim and the
3. Consequences of failure to state a compulsory counterclaim
a. Defendant is estopped from making the claim in any
4. Supplemental jurisdiction and compulsory counterclaims
a. Supplemental jurisdiction will almost always be
available over a compulsory counterclaim if the
original claim falls under subject matter jurisdiction
(because if ―logical relationship‖ then so closely
related that it falls under §1367)
ii. Permissive counterclaims —Rule 13 (b)
1. A permissive counterclaim is any counterclaim that is not
a. A pleading may state a counterclaim not arising out
of the transaction or occurrence that is the subject
matter of the party‘s opposing claim. (ANY claim
2. Supplemental Jurisdiction and Permissive counterclaims
a. There is supplemental jurisdiction over all claims
that are joined with claims for which there is
already subject matter jurisdiction even if there
would be no jurisdiction over the joined claims if
those claims were standing alone.
i. See Jones v. Ford Motor Credit Company in
which second circuit rules that supplemental
jurisdiction over permissive counterclaim
brought in district court is proper even after
original claim invoking subject matter
jurisdiction is dismissed.
iii. Cross-claims—Rule 13 (g)
a. A cross-claim is a claim against a co-party.
b. Cross-claim must state a claim “arising out of the
transaction or occurrence that is the subject matter
either of the original action or of a counterclaim
therein or relation to any property that is the subject
matter of the original action.
c. Cross claim is ALWAYS permissive
i. BUT, a counterclaim to a cross clam is still
subject to rule 13(a)—parties have a duty to
bring forth compulsory counterclaims .
2. Supplemental Jurisdiction and cross claims
a. Because Rule 13 (g) states that the cross claim must
arise out of the transaction or occurrence that is the
subject matter of the original claim, it necessarily
meets the requirements for supplemental
jurisdiction in §1367
i. BUT, if original claim does not fall under
subject matter jurisdiction, then the cross
claim must have an independent basis for
subject matter jurisdiction.
ii. See Fairview Park v. Al-Monzo
Construction Co in which third circuit rules
that district court has supplemental
jurisdiction over cross claim even when
original claim is dismissed on the merits.
3. Once a cross-claim has been made, the cross-claiming party
can add unrelated claims under Rule 18(a)
iv. Joinder of additional parties and cross/counter claims—Rule 13 (h)
1. ―Persons other than those made parties to the original
action may be made parties to a counterclaim or cross-
claim in accordance with the provisions of rules 19 and 20.
III. Joinder of Parties
a. GENERAL NOTES
1. IS THERE PERSONAL JURISDICTION OVER THE
PARTY TO BE ADDED?
a. PROPER NOTICE?
2. IS THERE SUBJECT MATTER JURISDICTION
OVER THE CLAIMS THE ADDED PARTIES ARE
b. Rule 20 —Permissive Joinder of Parties
i. Two requirements for permissive joinder
1. all joint plaintiffs must assert, and all joined defendants
must have asserted against them, claims ―arising out of the
same transaction, occurrence, or series of transactions or
2. there must be a question of law or fact common to all of the
a. example: see Kedra v. City of Philadelphia in
which third circuit rules that joinder of parties
permissible in a case involving systematic
harassment by the Philadelphia police department
against related defendants.
ii. Supplemental Jurisdiction and Rule 20
1. There is no supplemental jurisdiction over claims by
plaintiffs against parties joined under Rule 20 .
2. Supplemental jurisdiction may be exercised over
plaintiffs joined in a diversity action under Rule 20
who do not meet the amount-in-controversy
a. See Exxon Mobil Corp. v. Allapattah Services, Inc.
where Supreme Court ruled that parents of plaintiff
injured after cutting herself could be joined as
parties under Rule 20 when the underlying claim
meets the amount-in-controversy requirement even
if claims of parties joined under Rule 20 do not.
iii. Rule 20 (b)
1. allows the court to order a separate trial to prevent any
party from being ―embarrassed, delayed or put to expense
by the inclusion of a party against whom the party asserts
no claim and who asserts no claim against the party.‖
c. Rule 19 —Compulsory Joinder of Parties
i. How to analyze a Rule 19 issue
1. Is the party to be added under rule 19 ―necessary
a. NO: Motion should be denied and case proceeds
b. YES: Joinder should be ordered, ―if feasible.‖
2. Is there personal AND subject matter jurisdiction over the
party to be added under rule 19 (if break diversity, then no
subject matter jurisdiction)?
a. YES: Joinder should be ordered. Case proceeds
b. NO: Go to Rule 19 (b)
3. Is the party indispensable under Rule 19 (b)?
a. Yes: Rule 19 motion to dismiss should be granted.
b. NO: Joinder denied. Case proceeds.
4. For example see Helzberg’s Diamond Shops v. Valley West
Des Moines Shopping Center where defendant sought to
motion to dismiss for failure to join indispensable party
under Rule 19 when plaintiff failed to join non-diverse
defendant in a contract dispute.
ii. Rule 19 (a)—Is the party ―necessary?‖
1. A party should be joined ―if feasible‖ if
a. In the party‘s absence complete relief cannot be
accorded among those already parties OR
b. The party claims an interest relating to the subject
matter of the action and is so situated that
disposition of the action in the party‘s absence may
i. Impair or impede the person‘s ability to
protect that interest OR
ii. Leave any of the persons already parties
subject to a substantial risk of incurring
double, multiple or otherwise inconsistent
obligations by reason of the claimed interest.
2. if the joined party objects to venue AND joinder of the
party would render the venue improper, that party shall be
3. Joint tortfeasors are NOT necessary parties under Rule 19
a. See Temple v. Synthes Corp where defendant
corporation filed motion to dismiss under Rule 19
for failure to join negligent doctor. The court
dismissed the motion on the ground that ―it has long
been the rule that it is not necessary for all joint
tortfeasors to be named as defendants in a single
4. Possible reasons for inability to join a party
a. There are so many absent parties that joinder of all
of them is impracticable.
b. The absent party is not subject to personal
c. The absent defendant is immune from suit (i.e.,
d. The joinder of the absent party would add a
defendant of the same citizenship and thereby
defeat diversity jurisdiction
iii. Rule 19 (b)—Is the party ―indispensable?‖
1. If a necessary party cannot be joined, the court should
determine whether the action should be dismissed.
2. Factors to consider
a. To what extent a judgment rendered in the person‘s
absence might be prejudicial to the person or those
b. The extent to which, by protective provisisions in
the judgment, by the shaping of relief, or other
measures, the prejudice can be lessened or avoided.
c. Whether a judgment rendered in the person‘s
absence will be adequate
d. Whether the plaintiff will have an adequate remedy
if the action is dismissed for nonjoinder.
iv. Supplemental Jurisdiction under Rule 19
1. Supplemental jurisdiction is NOT available in diversity
cases when a party is sought to be joined under Rule 19
a. Supplemental jurisdiction is available in federal
d. Rule 14 —Impleader
i. Rule 14 (a)
1. invoked by a defending party.
2. CIRCUMSTANCES WHERE RULE PARTY MAY BE
JOINED UNDER RULE 14
a. Third-party plaintiff may implead another party
who is or may be liable to the third-party plaintiff
for all or part of the plaintiff’s claim against the
3. A motion for rule 14 impleader may be made at ANY time
after commencement of the action.
a. No leave from the court is required if the motion is
made within TEN DAYS after serving the original
b. If the motion is made more than TEN DAYS after
serving the answer, the third-party plaintiff must
obtain leave on motion upon notice to ALL parties
in the action.
a. Third-party defendant v. Third-party plaintiff.
i. The third-party defendant shall
1. Make any motions under Rule 12
2. Make any compulsory counterclaims
3. Consider cross-claims under Rule
b. Third party defendant v. plaintiff
i. Third party defendant may assert against the
plaintiff any ANY defenses which the third-
party plaintiff has to the plaintiff‘s claim.
ii. The third-party defendant may assert ANY
claim against the plaintiff arising out of the
same transaction or occurrence that is the
subject matter of the plaintiff‘s claim against
the third-party plaintiff.
c. Plaintiff v. Third-party defendant
i. May assert ANY claim against the third-
party defendant arising out of the same
transaction or occurrence that is the subject
matter of the plaintiff‘s claim against the
third party plaintiff.
1. If this happens, then
a. Third party defendant can
make defenses under Rule 12
b. Must make compulsory
counterclaims under Rule 13
c. CAN make permissive
counterclaims under Rule 13
d. May make cross claims under
Rule 13 (g)
5. A party may move to strike the third-party claim, or for its
severance or separate trial.
6. A third-party defendant may implead any person not a
party to the action who is or may be liable to the third-party
defendant for all or part of the claim made in the action
against the third-party defendant.
ii. Rule 14 (b)
1. IF a counterclaim is asserted the plaintiff
a. The plaintiff may implead another party under Rule
14 , pursuant to same process as Rule 14 (a).
iii. Supplemental Jurisdiction and Rule 14
1. THERE IS NO SUPPLEMENTAL JURISDICTION FOR
CLAIMS AGAINST THIRD-PARTY DEFENDANTS BY
THE ORIGINAL PLAINTIFF IN A DIVERSITY SUIT (But
there is supplemental jurisdiction if the underlying suit is
one brought on federal question jurisdiction).
a. The claim must have an independent basis of
subject matter jurisdiction.
b. See Owen Equipment & Erection Co. v. Kroger
where plaintiff‘s amended complaint against non-
diverse party impleaded under Rule 14 was
dismissed for lack of subject matter jurisdiction.
2. THERE IS SUPPLEMENTAL JURISDICTION FOR
CLAIMS BY THE THIRD-PARTY PLAINTIFF
AGAINST THE THIRD-PARY DEFENDANT
iv. Rule 14 (a) and Rule 18 (a)
1. Once a party has been properly joined under Rule 14 (a),
the third-party plaintiff may add unrelated claims under
Rule 18 (a).
e. Rule 24 —Intervention
i. Rule 24 (a)—Intervention of right
1. Upon timely application ANYONE shall be permitted to
intervene in an action:
a. When a statute of the United States confers an
unconditional right to intervene. OR
b. When the applicant claims an interest relating to the
property or transaction which is the subject of the
action and the applicant is so situated that the
disposition of the action may, as a practical matter,
impair or impede the applicant‘s ability to protect
i. UNLESS the applicant‘s interest is
adequately represented by existing parties.
ii. Rule 24 (b)—Permissive Intervention
1. Upon timely application ANYONE may be permitted to
intervene in an action
a. When a statute of the United States confers a
conditional right to intervene OR
b. When an applications claim or defense and the main
action have a question of law or fact in common.
2. In exercising its discretion, the court shall consider whether
the intervention will unduly delay or prejudice the
adjudication of the rights of the original parties.
iii. Rule 24 (c)—Procedure
1. Person desiring to intervene must serve a motion to
intervene on the parties under Rule 5
a. Motion must include the claim or defense for which
intervention is sought.
f. Rule 23 —Class Action lawsuits
i. General—See other outline
ii. Supplemental Jurisdiction and Class actions
1. A court may exercise supplemental jurisdiction over the
claims of parties joined under Rule 23 in a diversity action
even when not all of the plaintiffs meet the amount-in-
a. See Exxon Mobil Corp. v. Allapattah Services, Inc.
where Supreme Court held that supplemental
jurisdiction could be exercised over parties joined
under rule 23 even when the claims asserted by
those parties do not meet the amount-in-controversy
i. NOTE: the underlying claim (brought by the
representative members of the class) must
exceed the amount-in-controversy
i. Discovery is the legal process for compelling the disclosure of
information relevant to disputed factual issues in litigation
i. To enable more accurate outcomes in cases that are litigated on the
merits or settled on the basis of expected trial outcomes.
ii. To promote settlement
iii. To make available prior to trial information revealing whether the
case may be disposed of by summary judgment.
iv. Illegitimate/questionable purposes
1. inflict costs and harass opponent
2. facilitate the ―reconstruction‖ of a litigant‘s evidence in
anticipation of an opponent‘s proof at trial.
c. Informal discovery
1. interviews conducted by lawyer
2. private investigators
II. Rule 26—General Provisions Regarding Discovery
a. 26(a)(1)(A)-(D)—Mandatory disclosures
i. Each party must disclose
1. names, addresses, and telephone numbers of individuals
likely to have discoverable information that the disclosing
party may use to support its claims or defenses UNLESS
solely by impeachment, identifying the subjects of the
2. copies, or descriptions by categories and location, of
documents, data compilations and other tangible things
―that the discovering party may use to support its claims or
3. A computation of any category of damages claimed
4. any insurance agreement out of which a judgment may be
ii. Rule 26(a)(1)(E): exemptions from mandatory disclosure.
b. Rule 26 (b)—Scope of discovery
i. ―Parties may obtain discovery regarding ANY matter NOT
PRIVELEGED, that is relevant to the claim or defense of any
1. ―For good cause, the court may order discovery of any
matter relevant to the subject matter involved in the
a. NOTE: this is a request to expand the scope of
ii. The court may alter the limits on the number of depositions and
interrogatories and the number of requests under Rule 36.
iii. The court may limit the extent of use of discovery methods if it
1. the discovery sought is unreasonably cumulative or
duplicative or is more easily obtainable from another
2. the party seeking discovery has had ample opportunity by
discovery in the action to obtain the information sought
3. the burden of the discovery outweighs its likely benefit.
a. Factors to take into account
i. The needs of the case
ii. The amount in controversy
iii. The parties‘ resources
iv. The importance of the issues at stake
v. The importance of the proposed discovery in
resolving the issues.
c. Rule 26 (c)—Protective orders
i. A party may make a motion to obtain an order ―to protect a party
or person from annoyance, embarrassment, oppression or undue
burden or expense.‖
a. A certification that the moving party has, in good
faith, conferred or attempted to confer with other
affected parties in an effort to resolve the dispute
without court action.
b. The court will not issue the order unless ―good
cause‖ is shown.
2. Can be issued either by the court in which the action is
pending OR by the court that sits in the district where the
deposition is being taken.
1. If a motion for sanctions is denied, the court may enter a
protective order authorized under this rule. See Rule
d. Rule 26 (g)—Certification
i. Every disclosure made under 26(a)(1) must be signed by at least
one attorney of record.
1. the signature is a certification that the information and
belief is, to the best of the signer‘s knowledge, complete
and correct at the time.
ii. Every discovery request, response or objection must be signed.
1. the signature is a certification that the request, response or
a. consistent with the discovery rules
b. not for an improper purpose
c. not unreasonable, unduly burdensome or expensive
given the needs of the case.
1. If a certification is made that violates this rule, the court
shall impose upon the person who made the certification,
an appropriate sanction which may include the amount of
reasonable expenses incurred because of the violation.
e. Rule 26(f)—Conference of parties
i. The parties are required to meet as soon as practicable to confer for
1. consider the nature and basis of their claims and defenses
2. to consider possibilities of a settlement
3. to make or arrange for mandatory disclosures under
4. to develop a proposed discovery plan.
ii. Timing of conference
1. ―as soon as practicable‖
2. BUT, at least 21 days before scheduling order due under
i. A deposition is a formal questioning of a witness under oath
ii. Advantages of deposition
1. the deponent answers directly, rather than through his
2. the deponent does not know in advance what the precise
questions will be
3. the questioner can ask follow-up questions suggested by the
4. evaluation of witnesses and opposing counsel
1. extremely costly
2. risk of discovering and recording information unfavorable
to one‘s client
3. risk of revealing possible lines of analysis or attack
b. Rule 30—Depositions upon Oral Examination
i. Limit on number of depositions/duration
1. Limit of 10 depositions per side
2. Depositions have time limit of one day of seven hours
3. Leave of court may be obtained to extend these limits or
the limits may be increased by agreement of the parties.
ii. A party may depose any person, whether or not a party, who
possesses relevant information under Rule 26.
iii. All of the parties to the suit must be given reasonable notice of the
time and place of the deposition.
iv. Conduct of the deposition
1. an attorney may object to the questions that are asked.
a. But the range of permissible objections is less
because the fact that the evidence is ultimately
inadmissible is not a ground for objection.
2. A lawyer may instruct the witness not to answer when
a. To preserve a privilege
b. To enforce a protective order limiting discovery
c. To end a deposition because of abusive behavior by
the deposing party.
3. Any attorney whose witness is being deposed may cross-
examine the deponent.
4. If a party improperly impedes, delays, or frustrates fair
examination in a deposition, the court may impose
a. Sanctions include (Rule 30(d)(3))
i. Reasonable costs and attorney‘s fees
incurred by any parties as a result of the
1. If one party fails to attend the deposition the court ca order
the party giving notice to pay to the other reasonable
expenses including attorney‘s fees. Rule 30(g)(1) & (2)
IV. Rule 33—Interrogatories
i. An interrogatory is a written question sent to a party that must be
answered under oath and in writing. They can ONLY be sent to the
b. The interrogatory must be signed by the party to which they are directed.
i. There is a limit of 25 interrogatories, but leave of the court may be
requested to extend this limit or the parties may agree to extend.
i. Must be stated with specificity by the lawyer for the party.
ii. Any grounds for objection not so stated are waived.
iii. If an interrogatory is not objectionable, it must be answered Rule
V. Rule 34—Production of Documents and Things and Entry Upon Land for
Inspection and Other purposes
a. Rule 34(a)
i. A party may request another party to produce documents or
tangible things for inspection, copying or testing
1. OR to permit entry onto land or other physical property
ii. No leave of court is required for these requests
iii. There is no presumptive upper limit on the number of documents
or physical things that may be requested.
VI. Rule 35—Physical and Mental Examinations
a. Available only when the mental or physical condition of a party is in
i. The court will issue an order to the examination only if ―good
cause‖ is shown.
b. The examination must be conducted by a suitably licensed or certified
VII. Rule 36—Requests for admission
i. A party may request that the opponent admit, for the purposes of
the case, that certain facts are true or that certain documents are
ii. Requests are usually made near the end of the discovery phase.
b. Rule 36(a)
i. A request for admission of truth may be served on another party on
any matter discoverable within the scope of the discovery rules.
ii. If a party does not answer or object to a request within 30 days, the
matter is deemed to have been admitted.
iii. If the parties rejects or declines to admit, that party must state
reasons for objecting or declining.
c. Rule 36(b)
i. Effect of admission
1. any matter admitted to is conclusively established unless
the court permits withdrawal or amendment of the
VIII. Discovery Malfeasance
a. Duty to preserve information
i. 18 U.S.C. §1519 provides that there is an affirmative duty to
preserve information once a party is aware of the prospect of
litigation and the relevance of the information to the litigation.
b. Conventional view of legal obligation to provide discovery
i. When there is no legal obligation to disclose information harmful
to its case, a lawyer has no right to disclose the information.
1. This is enshrined in legal ethics rules.
ii. BUT, the lawyer for a party who has been asked for information in
the scope of discovery may not withhold or assist in withholding,
information without a non-frivolous legal argument for doing so
and may not make knowingly false factual or legal claims during
c. See Washington State Physicians Insurance Exchange & Association v.
Fissons Corporation where counsel for defendant‘s refusal to tender
important documents was sanctioned under Rule 26g.
IX. Discovery Sanctions
a. Rule 11 DOES NOT APPLY TO DISCOVERY
b. Rule 26(g)
i. Making a certification in violation of the rule can subject the
offending party to liability for expenses incurred because of the
c. Rule 30 (g)
i. If one party fails to attend the deposition the court ca order the
party giving notice to pay to the other reasonable expenses
including attorney‘s fees.
d. Rule 37
i. Rule 37 (a)—Motion to compel
1. The motion must be made to the court where the action is
2. If a party fails to make a 26(a) disclosure, any other party
may move to compel and for sanctions.
a. The motion must be certified
b. The moving party must have conferred with the
opposing party in good faith to resolve the problem
without judicial interference.
3. If any of the following occurs, the discovering party may
make a motion to compel (again must make good faith
effort to confer, must certify requestion).
a. A deponent fails to answer a question
b. A party fails to answer an interrogatory
c. Fails to respond to a request for inspection under
d. AN EVASIVE ANSWER is treated as a failure to
disclose, answer or respond.
a. If the motion is granted
i. The court will require the party moved
against to pay the reasonable expenses
incurred in making the motion.
b. If the motion is denied
i. The court may issue a protective order under
ii. The court will require the moving party to
pay the party who opposed the motion the
reasonable expenses incurred.
ii. Rule 37(b)
1. A deponents failure to respond after being directed to do so
by the court in the district where the deposition is taken
will be in contempt of that court.
2. Sanctions by the court where the action is pending
a. If a party refuses to answer questions in an
interrogatory or a deposition, or to schedule a
discovery conference under Rule 26(f) the court
i. Order that the matters regarding which the
order was made or any other designated
facts shall be taken to be established for the
purposes of the action
ii. Refuse to allow the disobedient party to
support or oppose designated claims or
defenses or prohibit that party from
introducing designated matters in evidence
iii. Order that pleading or parts of pleadings be
iv. Stay further proceedings until the order is
v. Dismiss the action or proceeding
1. this remedy is normally restricted to
cases in which the conduct of the
party resisting discovery was
intentional, in bad faith, and resulted
in prejudice to the opposing party.
vi. Enter judgment by default against the
vii. Order the party failing to obey to pay the
reasonable expenses caused by the failure
unless the failure is substantially justified
iii. Rule 37(c)—failure to disclose
1. A party that fails to disclose information without,
substantial justification, required by 26(a) or to amend a
response under 26(e) is not permitted to use evidence,
witnesses or information not disclosed.
a. The court may also impose other sanctions
including the payment of reasonable expenses.
2. If the party fails to admit the genuineness of any document
or the truth of any matter under Rule 36 (admissions) and
the party that had requested the admission later proves that
the document is genuine and the truth of the matter may
apply to the court for an order requiring the other party to
pay the reasonable expenses incurred
iv. Rule 37(d)—Failure to attend deposition, serve answers to
interrogatories or respond to request for inspection.
1. The court may do take any of the actions described above
a. A party fails to appear before the officer who is to
take a deposition.
b. Fails to serve answers or objections to
c. Fails to serve a written response to a rquest tofor
d. The moving party must make a good faith effort to
confer with the opposing party to resolve the issue.
X. Attorney-Client Privilege
1. The privilege is an investment by the legal system in
encouraging legal advice.
a. A lawyer will give better advice if she fully
understands the facts relevant to a clients problem.
b. A client‘s awareness of the privilege will encourage
c. The client will actually follow the advice provided.
3. The social value of the privilege depends on the extent to
which its existence encourages information flow to the
ii. Costs of the privilege
1. in cases where the privilege does not improve
communication with the lawyer, the privilege does not
improve the lawyer‘s advice and prevents the court from
receiving crucial information.
b. Codified in Federal Rule of Evidence 501
1. The privilege of a witness is governed by the common law
a. if a state law claim, then the privilege must be
determined in accordance with state law.
c. Scope of the privilege
i. ―Where legal advice of any kind is sought from a professional
legal advisor in his capacity as such, the communications relating
to the purpose, made in confidence by the client, are at his instance
permanently protected from disclosure by himself or by the legal
advisor, except the protection be waived.‖
ii. The privilege applies ONLY
1. if the asserted holder of the privilege is or sought to
become a client.
2. if the person to whom the communication was made is
a. a member of the bar or court or his subordinate and
b. is acting as a lawyer in connection with the
3. if the communication relates to a fact of which the attorney
a. by his client
b. without the presence of strangers
c. for the purpose of
i. securing an opinion on law
ii. or legal services
iii. or assistance in a legal proceeding
iv. NOT for the purpose of committing a crime
4. the privilege has
a. been claimed
b. has not been waived by the client
iii. The privilege is available to an organization (i.e., law firm or
1. See Upjohn Co. v. United States where Supreme Court held
that communications between the general counsel of a
corporation and lower to mid-level employees was
protected under the privilege. The court specifically denied
the ―control-group‖ test.
iv. The privilege protects communications and not the underlying facts
v. The privilege is absolute—even if the other party cannot get the
information from any other source, the privileged communications
cannot be compelled.
d. Claiming the privilege
i. Rule 26(b)(5)
1. The claim must be made expressly
2. The claim must be made in such a way that will enable the
other parties to assess the applicability of the privilege.
e. Waiving the privilege
i. The privilege can be waived by the client in two ways
1. voluntarily disclosing the communication
2. failing to claim the privilege
a. This ―implied waiver‖ is a continuous risk.
f. EXCEPTIONS to attorney-client privilege
1. communications are not protected if the services of the
lawyer were sought to enable or aid in the perpetration of a
ii. Lawyer/Client disputes
1. The privilege does not apply to communications ―relevant
to an issue of breach of duty by a lawyer to his client or by
a client to his lawyer.‖
a. Arises most often in legal malpractice cases.
XI. Work-Product Privilege
1. the work product of an attorney is material prepared in
anticipation of litigation, including but not limited to
statements taken from witnesses, notes taken at meetings
with witnesses or other people knowledgeable about the
matter in dispute, and memoranda summarizing legal
ii. Federal Rule of Evidence 612
1. If a witness uses a writing to refresh memory for the
purpose of testifying, the adverse party is entitled to have
the writing produced.
a. If the party claims that the writing contains matters
not related to the subject matter of the testimony,
the court may look at and excise the irrelevant
iii. See Hickman v. Taylor where Supreme Court held that the work
product of an attorney can be compelled for disclosure but only for
a very good reason.
b. Rule 26(b)(3)
i. A party may not obtain discovery material ―prepared in
anticipation of litigation or for trial by or for another party or by or
for that other party‘s representative‖ unless
1. ―prepared in anticipation of litigation‖
a. there is no protection for material prepared in the
ordinary course of business.
i. especially applicable to insurance companies
who investigate every claim.
b. It is not enough to show that the documents were
prepared in response to a certain claim—the
immunity only applies to documents that were
prepared because of the prospect of the specific
ii. the party seeking discovery has substantial need for the materials
iii. the party is unable to obtain the substantial equivalent of the
materials, without undue hardship, by other means.
i. Broader than attorney-client privilege
1. The work product doctrine protects material prepared in
anticipation of litigation.
ii. Less protective than attorney-client privilege
1. the protection can be overcome if the information cannot be
obtained from other sources or can only be obtained with
2. Court have compelled disclosure only when the lawyer‘s
own views or conduct are in question.
d. Claiming the privilege Rule 26(b)(5)
i. The privilege must be claimed expressly
ii. The privilege must be claimed in enough detail to permit an
assessment of the claim.
I. Rule 12 Motions
a. Rule 12(b)(6) & Rule 12(c)
i. For the purposes of adjudication, these motions are identical. Both
challenge the legal sufficiency of the allegations
II. Voluntary Dismissal
a. Rule 41
i. Voluntary dismissal
1. by plaintiff
a. A plaintiff may voluntary dismiss her complaint as
of right simply by filing a notice of dismissal
i. This must be done before the defendant has
served as answer or before the defendant has
filed a motion for summary judgment.
b. The dismissal is without prejudice
i. BUT, a second voluntary dismissal is with
1. Rule 41(d)
a. The court may also order the
plaintiff to pay the defendant
for the costs of the previously
dismissed action and stay the
proceeding until the plaintiff
c. Dismissal by stipulation
i. The plaintiff may also dismiss without
prejudice by stipulation of all adverse
ii. This can be done any number of times
2. By order of the court
a. The court may voluntarily dismiss the action by
order and ―upon such terms and conditions as the
court deems proper.‖
i. These conditions are usually designed to
mitigate unfairness to the defendant and may
include a requirement that the plaintiff may
all or part of the defendant‘s legal fees.
b. If the defendant has filed a counterclaim, the court
may not dismiss the complaint UNLESS
i. There is an independent basis for
jurisdiction that will allow the counterclaim
to remain after dismissal of plaintiff‘s claim
ii. OR the defendant is willing to consent to
dismissal of the counterclaim.
ii. Rule 41(b) Involuntary dismissal
1. A defendant may move for dismissal when
a. The plaintiff fails to prosecute their claim
b. The plaintiff fails to comply with the FRCP
2. A dismissal under this subdivision is an adjudication on the
merits with res judicata effects.
iii. Rule 41 applies to counterclaims, cross-claims and third-party
a. Settlement contracts usually involve two types of bargains
i. In a settlement of the typical claim for monetary damages, the
plaintiff exchanges all of her rights in a claim for monetary
payment from the defendant.
ii. In a settlement for injunctive relief, the claimant surrenders her
claim in return for a set of promises about future conduct from the
b. Once a complain as been filed, settlement can occur at ANY time.
c. Most dismissals pursuant to a settlement agreement do not require
approval of the court.
1. class actions
2. suits brought on behalf of incompetents.
d. Factors that will effect the bargaining process (increase or decrease the
size of the ―settlement gap‖
i. Expectations about the outcome
iv. The parties distinctive preferences and values
v. The role of the lawyer
e. Rule 16—Pretrial conferences
1. courts have the power to complete the attendance of the
parties at a pre-trial conference for the purposes of
ii. The court may direct the parties to appear before it for a
conference for the purposes of
1. expediting the disposition of the action
2. establishing early and continuing control so that case will
be protracted because of lack of management
3. discouraging wasteful pre-trial activities.
4. improving the quality of the trial through more thorough
5. facilitating the settlement of the case
1. Judge may use the sanctions listed in Rule 37.
f. Rule 68—Offer-of-Settlement and offer-of-judgment rules
i. Offer of Judgment
1. If a defendant offers to settle at any time more than ten
days before the trial begins, and the plaintiff declines the
settlement offer, then the plaintiff will be responsible for
the legal costs incurred after the making of the offer if the
ultimate judgment is less than the offer.
ii. Only a defendant may make an offer
iii. If the defendant makes an offer and plaintiff then recovers nothing
at trial, the rule does not apply because the plaintiff did not obtain
iv. This shifts only technical costs, not attorney‘s fees unless
1. it is a civil rights case
IV. Summary Judgment
1. Summary judgment provides a means, short of trial, for
deciding claims on their merits where the evidence is so
one-sided that a trial would be a waste of time and money.
2. The rules try to strike a balance between avoiding wasteful
trial and accidentally preventing a party from the valuable
opportunity to resolve a controversy in the richer
evidentiary context of trial.
ii. Burdens of production & persuasion and summary judgment
1. Burden of production
a. Typically falls on the plaintiff
b. Requires the plaintiff to produce evidence at trial
that meets a minimum standard of sufficiency.
c. Failure to meet burden
i. If the plaintiff does not introduce sufficient
evidence on EACH essential element of the
case, the judge can issue judgment as a
matter of law against the plaintiff
d. Standard for evaluation
i. The court evaluates the evidentiary record
and decides whether, in the court‘s
judgment, there is enough evidence
supporting the plaintiff‘s claim that a jury
could reasonably decide the case in the
2. Burden of Persuasion
a. Refers to the requirement that a plaintiff must
convince the jury of his or her claims by a
preponderance of the evidence.
3. STANDARD FOR GRANTING SUMMARY
a. The question a court will ask is whether there is
sufficient evidence favoring the plaintiff that a
reasonable jury could find in the plaintiff‘s favor
(burden of production) under the standard of the
burden of persuasion (i.e., ―preponderance of the
evidence,‖ ―beyond a reasonable doubt,‖ etc.)
b. The ultimate question for the court is: Do the
evidentiary materials submitted by the parties show
that there is sufficient evidence supporting each
element of plaintiff‘s case to permit a reasonable
jury to find for the plaintiff?
i. Yes—then there is a genuine issue of fact
and need for a trial
ii. No—no material fact worthy of submission
to a jury. Summary judgment granted.
c. The burden of persuasion is to be taken into
i. See Anderson v. Liberty Lobby, Inc. where
court held that the judge was required to
―view the evidence presented through the
prism of the substantive evidentiary
ii. See also Matsushita Elec. Co. v. Zenith
Radio Corp where court suggested that
when uncontested background facts render a
claim ―implausible‖ the plaintiff must offer
more persuasive evidence to demonstrated
the existence of a ―genuine issue.‖
1. NOTE: this can be read narrowly to
apply only to antitrust cases
involving conflicting economic
iii. Summary Judgment/Qualified immunity
1. See Colston v. Barnhart where court grants summary
judgment to police officers with qualified immunity under
§1983 after deciding that the evidence showed that the
actions of the police officers were ―objectively reasonable.‖
b. Rule 56
i. Rule 56(a)
1. The plaintiff may make a motion for summary judgment at
any time after the expiration of 20 days from the
commencement of the action.
ii. Rule 56(b)
1. the defendant may make a motion for summary judgment at
iii. Rule 56(c) – (f)—Process of summary judgment
a. The motion must be made at least ten days before
b. BUT if the motion is made too early, the judge will
either deny the motion or continue the hearing if the
nonmoving party has not had an opportunity to
make full discovery.
2. Standard for determination
a. ―The judgment sought shall be rendered forthwith if
the pleadings, depositions, answers to
interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter
3. Stipulation of facts in event summary judgment is denied
a. If judgment is not rendered on the entire case, the
court will determine what material facts exist
―without substantial controversy‖. These facts will
be deemed to be established and the trial will be
i. Both parties may submit affidavits and other
evidentiary materials in support of, or
opposing, the motion.
ii. Testimony must be factual and particular,
iii. Must be the type of evidence that would be
admissible at trial.
b. Local rules will often required that the party
opposing the motion file a brief containing a
statement of material facts in dispute with citations
to the evidentiary record
c. Evidence gleaned in discovery can be used
i. One purpose of discovery is to gather
information useful for resolving cases in
iv. Requirement of support
1. This rule has been interpreted as requiring the moving party
to ―support‖ the motion.
a. This means that the moving party should
demonstrate that there is some reason to believe that
plaintiff will fail to meet the burden of production.
2. But see Celotex Corp. v. Catrett
a. The defendant does not have to affirmatively show
that the plaintiff cannot meet his or her burdens at
trail. Rather, the defendant can simply point to the
lack of evidence produced by the plaintiff to obtain
i. This establishes that a moving party who
does not bear the burden of proof does
not have to “support” their motion
beyond pointing out that the other party
cannot meet their burden.
V. Default Judgment
a. Rule 55
i. ―Entry‖ of default
1. If the defendant fails to plead or defend and the plaintiff
makes this apparent to the court in an affidavit, the clerk
must enter default.
a. Does not terminate the case, but does bar any
further defense on the issue of liability uneless
3. Rule 55(c)
a. The court may set aside an entry of default ―for
good cause shown.‖
ii. Rule 55(b)- Judgment by Default
1. When the plaintiff‘s claim is for a sum certain or for a sum
that can be made certain by computation, the clerk shall
enter judgment for that amount.
a. NOTE: the ―sum certain‖ requirement would bar
judgment by default for claims seeking injunctive
2. Judgment by default has res judicata effects—it is a
judgment on the merits
3. Judgment can be relieved only according to Rule 60
4. Relief granted in default judgment cannot exceed that
demanded in the prayer for relief.
I. Trial, Generally
i. While more cases are disposed of before trial, the cases that do
make it to trial are more complex and have more at stake.
i. Trial by jury or bench trial
1. Jury trial most common form of trial.
2. Jury trial formal than a bench trial
3. pre-trial motions
4. Clerk calendars the case for trial
5. jury selection
6. the party with the burden of proof makes opening statement
a. purpose is to outline the plaintiff‘s evidence to
make it more intelligible to the jury
7. Defendant may make opening statement here or after
presentation of defendant‘s evidence (usually here)
8. plaintiff presents evidence
a. Defense cross-examines witness
1. to draw out knowledge potentially
favorable to cross-examiner
2. to expose deficiencies in testimony
3. impeachment of the witness
9. Defendant may make motion for judgment as a matter of
10. defendant presents case
11. plaintiff may make motion for judgment as a matter of law
12. plaintiff may then present rebuttal evidence
13. defendant may present rebuttal evidence
14. both sides may make motion for judgment as a matter of
15. Closing arguments
16. Judge‘s instructions to the jury
II. Right to Trial by Jury
a. Seventh Amendment, general
i. Text of Seventh Amendment:
1. ―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.‖
ii. 14 amendment provides right to trial in all criminal cases, state or
iii. No constitutional guarantee of trial by jury in civil cases in State
iv. Meaning of trial by jury
1. interpreted according to the common law rules that existed
at the time of its adoption.
a. Jury of twelve people
b. In the presence and under the superintendence of a
judge, empowered to instruct the jury on the law
and to advice them on the facts and also empowered
to set aside the verdict if the opinion is against the
law or evidence.
b. Demanding and Waiving Right to Trial by Jury
i. Rule 38
a. Any party may demand a trial by jury of any issue
triable of right by a jury by
i. Serving upon the other party a demand for
trial by jury no later than ten days after the
service of the last pleading
b. A demand for a jury trial cannot be withdrawn
without the consent of the parties.
a. Failure to file a demand constitutes a waiver of the
right to trial by jury.
ii. Rule 39—Trial by Jury or by the Court
1. If a demand is made under Rule 38, the trial shall be by
a. The parties agree to a bench trial
b. The court decides that there is no right ot trial by
2. The court can relieve a party from the consequences of its
waiver of the right to trial by jury by ordering a jury trial.
3. Even if there is no right to a trial by jury, the court, by its
own initiative, may try an issue with an advisory jury, or,
with the consent of both parties, may order a trial by jury
empowered to make a verdict.
c. Rule 48
i. Jury consists of at least 6 and no more than 12 members
ii. Verdict must be unanimous.
III. Jury Selection
i. Proceeds in two stages
1. Jury panel or ―venire‖ is assembled at courthouse.
2. the actual jury is chosen from among the panel through the
process of voir dire.
ii. Voir Dire
1. consists of questioning potential jurors to uncover possible
2. if bias discovered, party can use peremptory challenge to
remove juror from panel.
iii. Panel Selection—Rule 47
1. Constitutional requirements
a. 14th amendment prohibits intentional discrimination
b. In criminal cases: panel must be drawn from a fair
cross section of the community.
2. Statutory guidance
a. Jury Selection and Service Act provides that a jury
panel must be selected at random from a fair cross-
section of the community and requires that no
citizen be excluded from service on the basis of
race, color, religion, sex, national origin or
3. ―Fair cross section‖
a. Most panels are not represented because drawn
from voter lists that under-represent minorities
b. Constitutional challenges to the use of voter lists
has failed (except in California).
b. Peremptory Challenges
i. In civil cases in federal court, each party has three peremptory
challenges (Rule 47)
1. no reason must be given for peremptory challenge
2. BUT see Edmondson v. Leesville Concrete Inc where
Supreme Court held that a litigant may not exercise his or
her peremptory challenges on the basis of race.
ii. Each party has an unlimited number of challenges for cause
1. standard for disqualification come from federal common
2. judge has substantial discretion is deciding whether to
dismiss a juror.
IV. Jury Verdicts
a. Instructions to the jury
i. Instructions to the jury contain
1. the rules of substantive law to be applied
2. advice on the task of the jury as the finder of fact,
explaining the burden of persuasion and the jury‘s role as
the arbiter of credibility and the drawer of reasonable
ii. Process of jury instructions
1. The judge has an obligation to instruct the jury with the
basic rules of substantive law to be applied in the case.
2. Adversarial elements of system
a. Counsel to both parties will often contest the nature
of the instructions, presenting their own requests for
iii. Timing of instructions
1. Rule 51
a. Allows the judge to give instructions to the jury
before or after the arguments of counsel.
iv. Appellate review of jury instructions
1. An appellate court may reverse, if an objection has been
properly preserved if the following conditions are met:
a. The requested instruction was a correct statement of
b. The issue on which the instruction was requested
was property before the jury
c. The instruction was not covered by another
d. The failure to give the instruction was a prejudicial,
not harmless, error.
b. Different types of jury verdicts
i. General verdict
1. In a general verdict, the jury simply states its conclusion
(find for plaintiff or defendant) and the amount to be
awarded (if any)
a. Conceals the reasoning process by which the verdict
ii. Special verdict
1. Rule 49 (a)
a. Requires the jury to find specifically on all of the
issues essential to the plaintiff‘s case.
iii. General verdict with interrogatories
1. Rule 49(b)
a. Requires the jury to render a general verdict, but
also to answer written interrogatories upon one or
more issues of fact.
a. In general, courts have an obligation to reconcile
b. If the finding cannot be reconciled with the verdict,
the verdict cannot stand.
V. Inadequate or Excessive verdicts
a. Excessive or inadequate awards for damages
i. The trial judge has an obligation to set aside a verdict when its
amount is not supported by the evidence.
1. judges can disagree on the reasonableness of the damages
(and often do).
i. At the hearing on a defendant‘s motion for a new trial, the judge
indicates what he or she thinks is the upper bound of a reasonable
ii. The judge then grants a conditional motion for a new trial
1. if the plaintiff agrees to accept a judgment for the reduced
amount, then no new trial.
2. if the plaintiff does not agree, then he or she risks that a
new jury will grant less in damages.
i. The corollary to remitter
ii. Trial judge denies plaintiff‘s motion for a new trial on the
condition that the defendant agree to an increase en the award to an
amount specified by the judge.
iii. This procedure has NOT been adopted by the Federal courts.
d. Punitive damages
i. Judges retain the power to reduce punitive damage awards.
ii. The Due Process clause has been interpreted to imply that an
award of punitive damages may not be ―grossly excessive‖ in
proportion to the wrong committed.
1. Three factors test to determine
a. The reprehensibility of the defendant‘s conduct
b. The ratio between the punitive damage award and
the severity of the harm inflicted or threatened.
c. The ration between the punitive damage award and
the monetary sanctions set by the legislature for
iii. Both state and federal courts are required to conduct appellate
review of punitive damage awards
1. standard on review is de novo
VI. Judgment as a matter of law (JMAL)
i. Standard for granting JMAL
1. The court should review all of the evidence in the record
2. the court should draw all reasonable inferences in favor of
the non-moving party.
3. The court should NOT make credibility determinations or
weigh the evidence.
4. The standard is linked to the burden of persuasion.
ii. See Simblest v. Maynard where district court granted JMAL even
though the plaintiff had provided conflicting evidence on a key
point of fact.
iii. See also Sioux City & Pacific Railroad Co. v. Stout where judge
submitted case to jury despite the fact that there was no material
question of fact because the facts were of such a nature that
reasonable people could draw different inferences.
b. Rule 50
i. Judgment as a matter of law—Rule 50(a) (―Directed Verdict‖)
1. Motion for JMAL can be made anytime before the case is
submitted to the jury.
a. The motion must specify the judgment sought and
the law and the facts on which the moving party is
entitled to the judgment.
2. Standard for determination
a. JMAL may be granted if
i. A party has been fully heard on an issue
ii. There is no legally sufficient evidentiary
basis for a reasonable jury to find for the
party on that issue
iii. The claim or defense cannot, under the
controlling law, be maintained or defeated
without a favorable finding on the issue.
ii. Renewed Motion for Judgment After Trial (―Judgment n.o.v.‖)
1. Available if the court does not grant earlier motion for
2. The motion must be made no later than ten days after entry
3. If a verdict was returned the judge may
a. Allow the judgment to stand
b. Order a new trial
c. Direct entry of judgment as a matter of law
4. If a verdict was not returned
a. Order a new trial
b. Direct entry of judgment as a matter of law
VII. Motion for a new trial
a. Rule 50 (b)
i. A party may make alternative motions for JMAL and for a new
b. Rule 59
1. A motion for a new trial must be filed no more than 10
days after entry of judgment
ii. A new trial may be granted to all or any of the parties on all or part
of the issues on the basis of common law
iii. NOTE: The grant of a new trial means that there can be no appeal
because there is no final judgment.
c. A motion for a new trial will not be granted unless the jury verdict is
―against the great weight of the evidence.‖
i. See Spurlin v. General Motors Corp where court denied a motion
for a new trial in a products liability case with conflicting evidence
because the verdict could not be said to be against the great weight
of the evidence.
d. A new trial may be granted because of procedural errors
e. A new trial may be granted on the ground of ―newly discovered‖
i. The applicant for a new trial must show that he or she used due
diligence before and during the trial to get the evidence.
f. Motions for new trial based on jury misconduct are rare
i. Federal Rule of Evidence 606b. (p. 1116)
VIII. The Judgment
a. Rule 54—The Judgment
i. Definition of judgment
1. a judgment is a legal document that describes the final
decree of the court.
b. Entry of judgment
i. Rule 58—Entry of Judgment
1. A judgment is only effective upon entry
2. The judgment must be in a separate document
3. Judgment must shows the basis issues that must be
addressed in a claim for relief
a. The amount awarded
b. The amount of any pre-judgment interest
c. The allocation of costs
4. The judgment must be sufficiently definite and certain so
that a party can comply with its provisions.
ii. The Civil Docket—Rule 79
1. The judgment is entered by the clerk in a book known as
the ―civil docket‖
2. Entries are brief, stating that judgment is now entered and
in simpler cases, will state the relief decreed
iii. General verdicts
1. Clerk is authorized to prepare, sign and enter the judgment
into the civil docket without intervention by the parties or
iv. Special verdicts
1. The court is required to approve the form of the judgment,
which is then entered by the clerk.
v. Legal significance of entry of judgment
1. Starts the period for post-trial motions
2. triggers the time to file an appeal
3. a necessary condition for enforcement of the judgment
a. actions taken on the basis of a judgment which has
not been entered are legally void.
c. Enforcement of judgment
i. Rule 69
1. Payments of money
a. enforced by a write of execution, issued byte court
and addressed to the sheriff, that will provide for the
seizure of the judgment debtor‘s non-exempt
property for public sale.
b. Money judgment must be enforced in accordance
with the practice and procedure of the state in which
the federal court sits
i. Unless there is a preempting federal statute
IX. Relief from judgment or order
a. Rule 59(e)—Motion to Alter or Amend judgment
i. Must be filed no more than 10 days after judgment
b. Rule 60—Relief from Judgment or Order
i. General Conditions
1. The following conditions must be satisfied to be relieved
a. The moving party must have acted with reasonable
promptness and diligence after having discovered
the grounds on which the motion is based.
b. The moving party must have a claim or defense or
substantial merit that can be asserted if the
judgment is set aside
c. Granting the motion must not unfairly jeopardize
interests of reliance that have taken shape on the
basis of the judgment
d. The grounds advanced must not have been
previously adjudicated in the original action or in
some previous effort to obtain relief from the
judgment and must not be grounds the applicant
could have asserted by appeal from the judgment.
c. Rule 60(a)
i. Clerical mistakes ma be corrected by the court at any time by its
own initiative or by motion of any parties.
ii. During the pendency of an appeal, the mistake may be corrected
1. before the appeal is docketed
2. or, after the appeal is docketed, only with leave by the
d. Rule 60(b)
i. A court may relieve a party from final judgment, on motion within
a reasonable time OR not more than one year after the
judgment, order or proceeding was entered or taken for the
1. mistake, inadvertence, surprise or excusable neglect
2. newly discovered evidence which by due diligence could
not have been discovered in time to move for a new trial
under Rule 59(b)
3. Fraud, misrepresentation or other misconduct of the
ii. A court may relieve a party from final judgment, on motion within
a reasonable time, for the following reasons
1. the judgment is void
2. the judgment has been satisfied, released, or discharged, or
a prior judgment upon which it is based has been reversed
or otherwise vacated or it no longer equitable that the
judgment should have prospective application
3. any other reason justifying relief from the operation of the
e. Separate suit may be brought to vacate the judgment, but the Supreme
Court has held that this may only be done to ―prevent a grave miscarriage
a. General/Principal Points
i. The only formal step required to make an appeal is a timely filing
1. the appellant must then pay required fees, file the record,
and file a brief and appendix.
ii. Notice of appeal
1. this is a very simple document, liberally construed by the
iii. Generally, only an aggrieved (i.e., losing) party may seek appellate
1. some state courts allow appellate review of important
questions of law.
iv. Only parties to the action may appeal
1. Someone whose interests are affected who was not a party
can seek to intervene under Rule 24.
v. ―Interlocutory order‖
1. An interlocutory order (an order entered during the course
of the trial) can be review by an appellate court BUT
ONLY in connection with an appeal from a FINAL
i. Must be filed within 30 days of the entry of judgment
1. The United States, as a party, has 60 days.
ii. The notice must be filed, not simply served
iii. Federal Appellate Rule 4(a)(5) allows additional time upong a
showing of excusable neglect or good cause.
c. Scope/Standards of review
i. A matter cannot be complained of on appeal unless objection was
intelligibly made in the trial court at the time the event or ruling
occurred or promptly thereafter.
ii. A matter will not be considered on appeal unless it is properly
cited in the appellant‘s papers on appeal.
iii. An appellate court will not receive new evidence
1. factual findings will only be overturned if they are ―clearly
iv. Scope of review of review of injunctive relief has traditionally
been limited to an ―abuse of discretion.‖
v. An appellate court will not disturb rulings that are within the
―sound discretion‖ of the trial court unless there was an abuse of
d. ―Harmless Error‖ Rule
i. Even if there were errors in the preceding trial, the appellate court
will not reverse if the errors were ―harmless‖ or ―nonprejudicial.‖
e. ―Final Judgment Rule‖
i. With a few exceptions, appellate review is limited to final
ii. Safety valves
1. 28 U.S.C. §1292
a. these caveats are left to the discretion of the courts.
b. The district judge MUST certify the question AND
the Court of Appeals must exercise their discretion
to hear the appeal
2. Other requirements
a. The order being reviewed must be conclusive
b. The order being reviewed must be an important
issue that is not based on the merits
c. Must be of such a nature that going forward without
an immediate appeal would render it unreviewable
i. Ex: qualified immunity (which is immunity
from suit, not just from liability).
f. Extraordinary writs
i. Writ of Mandamus—used only when the district court has clearly
done something wrong.
RES JUDICATA & COLLATERAL ESTOPPEL
I. Res Judicata & collateral estoppel, Generally
a. Res judicata and collateral estoppel are affirmative defenses that must be
pleaded according to Rule 8(c).
b. Joinder complications/considerations
i. Plaintiff, thinking strategically, may want to bind a party to the
findings of their case.
1. can use Rule 19 to argue that they are a ―necessary‖ and
2. Otherwise Rule 20
3. Rule 24 allows for intervention of party who thinks their
interests are at stake in the litigation.
c. The courts may bring up the defenses of res judicata and collateral
estoppel sua sponte
II. Res Judicata (―claim preclusion‖)
1. promotes stability and finality in the legal system
2. promotes judicial efficiency
3. fairness—litigants should not be able to relitigate the same
issue over and over again
ii. Res Judicata bars a party who has previously brought a claim and
lost from presenting that claim, and related claims, in future
iii. The relevant law of res judicata will be jurisdiction specific.
Federal courts will apply the law of the state within which they sit.
b. Elements of Res Judicata
i. Valid and Final Judgment
1. some jurisdictions will give res judicata effect to a
judgment once it has become final in the trial court, even if
an appeal is pending.
a. BUT this was not the case in Federated Department
Stores, Inc. v. Moitie
ii. On the merits
1. a 12(b)(6) dismissal is ―on the merits.‖
2. summary judgment, judgment as a matter of law, settlement
with agreement to dismiss with prejudice and dismissal for
failure to prosecute are all, likely, ―on the merits.‖
a. Rationale: the plaintiff has had a full opportunity to
litigate. If he or she does not take the opportunity,
then consequences ensue.
3. Rule 41 cannot make preclusion law—only describes the
effects if a plaintiff wants to file the same claim in the same
4. Compulsory counterclaims
a. Rule 13a counterclaims are bound by effects of res
iii. Same or Related Claim
1. Restatement (2d) Judgments §24
a. ―When a valid and final judgment rendered in an
action extinguishes the plaintiff‘s claim pursuant to
the rules of merger or bar, the claim extinguished
includes all rights of the plaintiffs to remedies
against the defendant with respect to all or any part
of the transaction, or series of connected
transactions, out of which the actions arose.‖
b. ―What factual grouping constitutes a ‗transaction‘
and what grouping constitutes a ‗series‘, are to be
determined pragmatically, giving weight to such
considerations as whether the facts are related in
time, space, origin or motivation, whether they form
a convenient trial unit, and whether their treatment
as a unit conforms tot the parties‘ expectations or
business understanding or usage.‖
2. Some states will define claim more narrowly
iv. Same parties or their privies
1. Privity is a special relationship between the parties that
a. commercial relationship
b. family relationship
c. fiduciary relationship
e. privity of estate
2. A party who has agreed to be bound by the result of
litigation is in privity with a party to that litigation
3. If a non-party controls or substantially participates in the
control of the litigation behavior of a party, the non-party is
in privity with that party.
c. Claim Splitting
i. Res judicata does not apply if the plaintiff was forced to litigate in
a forum of limited jurisdiction that would not have allowed him to
present a claim ―arising out of the same transaction or series of
transactions or occurrences.‖
1. BUT, if the plaintiff chooses the limited forum, then the
plaintiff chooses at her own peril—if a related claim was
not asserted, she may be barred from bringing it under the
doctrine of res judicata
2. See Staats v. County of Sawyer where court held the
doctrine of claim preclusion ought not apply to an action
brought into federal district court after being litigated
according to state administrative guidelines, when the
system (state administrative courts) that heard the initial
claims was one of limited jurisdiction that could not have
heard all of the plaintiff‘s claims.
ii. Important notes
1. “claim” does not differentiate between state and federal
causes of action
2. a lawyer concerned about res judicata should choose the
more jurisdictionally competent forum
iii. Restatement (2d) Judgments §26
1. The general rule of claim preclusion does not apply when
a. ―The plaintiff was unable to rely on a certain theory
of the case or to seek a certain remedy or form of
relief in the first action because of the limitations of
subject matter jurisdiction of the courts or
restriction on their authority to entertain multiple
theories or demands for multiple remedies or forms
of relief in a single action, and the plaintiff desires
in the second action to rely on that theory or to seek
that remedy or form of relief.‖
d. Scope of Res Judicata
i. Res Judicata will bar a claim in a second suit when it has already
been decided on the merits, even if the law is subsequently
changed in such a way that the first suit would have turned out
1. See Federated Department Stores, Inc. v. Moitie where
Supreme Court held that there was no exception to the
doctrine of res judicata when the plaintiff‘s first claim was
dismissed for failure to state a claim and the law is then
changed shortly thereafter to allow the claim.
ii. res judicata does not require that a party join all possible parties to
a suit. The plaintiff may bring up the same claim against different
e. res judicata and compulsory counterclaims
i. Restatement (2d) Judgments §22
1. ―Where the defendant may interpose a claim as a
counterclaim but he fails to do so, he is not thereby
precluded from subsequently maintaining an action on that
claim, except as stated in Subsection (2)
2. ―A defendant who may interpose a claim as a counterclaim
in an action but fails to do so is precluded, after the
rendition of judgment in that action, from maintaining an
action on the claim if:
a. the counterclaim is required to be interposed by a
compulsory counterclaim statute or rule of court.
III. Collateral Estoppel
a. Collateral Estoppel, generally
i. The constitutional requirement of due process requires that every
party be given a full and fair opportunity to be heard. This means
that in EVERY non-mutual estoppel situation, the estopped party
must have been a party in the first suit and therefore had his
chance to litigate the issue.
ii. Collateral Estoppel v. Res Judicata
1. Collateral Estoppel prevents a party from relitigating an
issue, not a claim. This makes it both broader and narrower
than res judicata.
a. Narrower: Collateral Estoppel only applies to a
single issue in what may be a larger claim.
b. Broader: Collateral Estoppel will prevent a party
from bringing up another issue, even in a separate
b. Elements of Collateral Estoppel
i. Valid and Final Judgment
ii. Issue was actually litigated
1. The issue in the two suits must be the same
a. See Levy v. Kosher Overseers Association of
America, Inc. where court held that a decision by
the Patent and Trademark Office‘s Trademark Trial
and Appeal Board rejecting the defendant‘s
application for a trademark on the grounds that it
was too similar to the trademark used by the
plaintiff did NOT have collateral estoppel effect in a
later action brought on the grounds of trademark
2. Just because an issue was raised does not mean it was
a. An admission does not mean that the issue was
b. An issue is not actually litigated if the parties settle.
c. The modern rule is that the issue is actually litigated
if the parties are antagonistic to each other on the
d. The dominant view is that a default judgment does
NOT have preclusive effect.
iii. Issue was actually determined AND the determination was
necessary to the judgment
1. The issue determination must be necessary to the courts
a. If a court finds for a litigant on two independent,
sufficient grounds and it cannot be determined
which issue was dispositive, then collateral estoppel
will NOT apply
2. Parties must be given a ―full and fair‖ opportunity to
a. The proceeding must be sufficiently formal, with
sufficient procedural safeguards, to issue a
judgment with preclusive effects.
i. The general rule is that findings in state
administrative proceedings will have
preclusive effect in a later federal court suit
between the same parties.
b. In some cases, the inability to appeal with prevent a
judgment from having collateral estoppel effect.
3. Effect of the burden of proof
a. The Restatement holds that collateral estoppel
should NOT apply where the party against whom
preclusion is sought faced a heavier burden of
persuasion in the first action compared with the
second (i.e., if ―beyond a reasonable doubt‖ in the
first, then this would not be preclusive on a
―preponderance of the evidence‖ burden.)
iv. Same parties or their privies
1. some jurisdictions allow for non-mutual collateral estoppel
2. Privity is a special relationship between the parties that
a. commercial relationship
b. family relationship
c. fiduciary relationship
e. privity of estate
3. A party who has agreed to be bound by the result of
litigation is in privity with a party to that litigation
4. If a non-party controls or substantially participates in the
control of the litigation behavior of a party, the non-party is
in privity with that party.
5. The ―same parties‖ requirement has been relaxed…
c. Non-Mutual Collateral Estoppel
1. Common Law requirement of mutuality
a. Traditionally, the common law stated that collateral
estoppel should apply only when it can apply
mutually, that is, that a party should not be bound to
an adverse judgment unless the other party would
have been bound had the decision been reversed.
ii. Defensive Non-Mutual Collateral Estoppel
a. Defensive non-mutual collateral estoppel exists
when a defendant seeks to estop a plaintiff from
raising an issue that was decided in previous
b. See Blonder Tongue Laboratories Inc. v. University
of Illinois Foundation in which Supreme Court held
that defensive non-mutual collateral estoppel was a
iii. Offensive Non-Mutual Collateral Estoppel
1. Offensive non-mutual collateral estoppel exists when a
plaintiff seeks to estop a defendant from raising an issue
that was decided in previous litigation
a. See Parklane Hosiery v. Shore in which Supreme
Court held that offensive non-mutual collateral
estoppel permitted on a case by case basis.
2. Concerns/Problems with offensive non-mutual collateral
a. Creates an incentive for plaintiff‘s to ―wait and see‖
how litigation against a potential future defendant
will be resolved instead of intervening—this might
actually increase the amount of litigation.
b. May be unfair to the defendant. The defendant may
not have had incentive to defend vigorously and
may not foresee the issue being important in a
i. May be unfair if the previous judgment
relied upon is inconsistent with other
3. Factors to consider in determining whether to allow
offensive non-mutual collateral estoppel
a. Whether the plaintiff could easily have joined in an
b. Whether the defendant would have new procedural
opportunities unavailable in the first action.
c. Whether the previous judgment relied upon is
inconsistent with other previous judgments
d. Whether the defendant had sufficient incentives to
vigorously defend the issue in controversy
4. NOTE: criminal convictions
a. A criminal conviction can be relied on for
preclusive effect in subsequent civil actions.
b. BUT court shave been reluctant to give preclusive
effect to guilty pleas or minor offenses.
I. Is the law, rule or practice arguably procedural?
i. In Sibbach v. Wilson the Supreme court concluded that a law is not
substantive just because it involves important or substantial rights.
If the law or rule regulates procedure, then it is procedural.
b. If NOapply state law (Erie, 28 U.S.C. §1652)
c. If YESdetermine if conflict between state and federal law, rule or
II. Is there a conflict between state and federal practices?
a. If NO apply both
b. If YES see if there is a valid constitutional provision, treaty, statute or
rule on point.
III. Is there a valid constitutional provision, treaty, statute or rule on point?
a. If NO Determine if application of the relevant rule would be outcome-
b. If YES The Supreme Court concluded, in Hanna v. Plumer that a valid
rule of procedure that is on point will always trump a state rule.
IV. Is the application of the relevant state procedure likely to determine the
outcome of the case?
i. The test was first developed in Guaranty Trust Co. v. York. In
Hanna v. Plumer the Supreme Court modified the outcome-
determinative test. Must see if the outcome would be such as to (a)
encourage forum shopping or (b) result in inequitable
administration of the law.
b. If NO follow federal practice
c. If YES determine if there is an overriding federal interest justifying the
application of federal law.
V. Is there is an overriding federal interest justifying the application of federal
law? (Byrd v. Blue Ridge)
a. TEST: factors/issues of federal interest
i. Seventh amendment right to jury trial
ii. Due process concerns
iii. Division of power between judge and jury
iv. Res judicata, issues of federal common law
b. If NO apply state law
c. If YES determine if both practices can be accommodated (Gasperini)
VI. Can the federal and state practices both be accommodated?
a. If NO apply Federal law as per Byrd balancing test.
b. If YES make accommodate.
i. See Gasperini v. Center for Humanities where court
accommodated state practice at trial level, but maintained federal
practice (standard of review) at appellate level.