FCRP became effective 1938, have force and effect of law.
RULE 1: FRCP govern federal DC in civil suits.
Objective of FRCP: just, speedy, inexpensive resolution of suits
RULE 2: merger of law and equity.
RULE 3: Action begun by filing complaint with court
•filing, not service, is date on which action commences
•filing tolls statute of limitations.
•Complaint must be filed before service
•P has 120 days to serve summons after filing [4(m)]
SERVICE OF PROCESS
RULE 4: Summons
√4(a) Form: The summons must contain:
1. Signature of a clerk, bear the seal of the court, identify the court and parties,
be directed to D, and state the name of P’s attorney.
2. Time within which D must appear and defend
3. Consequences of a failure to do so.
4(b) Issuance: After filing the complaint P presents summons to clerk for signature.
Served to D if it is found to be in order.
4(c) Service with complaint; by whom made
1. Summons served with copy of the complaint.
2. Summons can be given by anyone not a party who is 18 or older.
At request of P a US marshal can give the summons, or other officer
appointed by the court; this is always the case in forma pauperis
proceedings and for a seaman.
4(d) Waiver of service
1. No waiver of right to object to venue or jurisdiction
2. duty of D to avoid costs
•NOTICE & REQUEST for waiver shall:
A. be written and addressed to D or agent
B. be sent 1st class mail or other reliable means
C. include copy of complaint and identify court where filed
D. inform D of consequences of (non)compliance [Rule 84]
E. list date request was sent
F. D has 30 days from date request sent if within US, 60 days if
without to reply
G. Include extra copy of notice and request and prepaid means to reply
•FAILURE OF D in US to REPLY means costs of serving process
will be imposed on D unless good cause shown
3. If D returns waiver on time, gets 60 days within US, 90 days without, from
date request for waiver sent to reply
4. Once D waives service, action proceeds as if summons served (no proof of
5. Costs imposed on D for failing to comply with request for waiver:
Service + attorney’s fees + motion to collect costs
Date of service deemed to be date P filed response to waiver with court.
4(e) Service on individual within US (except infant or incompetent)
1. according to law of state where court is or where summons served
2. by personal service, leaving at home (usual place of abode) with resident of
suitable age, with agent
4(l) Proof of service:
by affidavit. Failure to make proof does not affect validity of service
4(m) time limit for service
120 days from filing or good cause
judge may grant extension or may require service within a certain period
otherwise, case dismissed without prejudice
Issues in service of process
Adequate notice (Due Process, 14th Amendment)
What is reasonable: likelihood of success + costs for all involved + situation specific +
proportional to interest at stake
CASE: Greene v Lindsay (US 1982)
Service of process by posting in forcible entry and detainer actions in public housing.
P contends summons never received. Posting according to KY statute.
Majority: service has to be adequate to situation, reasonably likely to succeed, balance
costs and interests at stake, use available alternatives
Dissent: posting has precendent; it is adequate and speedy. Mailing no better.
Disagreement is over what is reasonable.
COMMENTARY: “An elementary and fundamental requirement of due process in any
proceeding which is to be accorded finality is notice reasonably calculated, under all the
circumstances, to appraise interested parties of the pendency of the action and afford them
an opportunity to present their objections.” Mullane 339 U.S. at 314, cited in Greene.
Appeal standard: was actual notice given=clearly erroneous; was notice adequate=de novo.
The rhetoric of grievances.
Pleading deals with allegations not facts. Pleading not aimed at proving or disproving.
Complaint: the document that sets forth either the initial Ps claim for relief or a 3 rd party Ps
claim for relief.
Answer: the documents that sets forth a Ds opposition to a complaint, a cross-claim, or a 3rd
Counterclaim: the documents that sets forth a Ds or 3rd party Ds claims against the original P
or 3rd party P.
Cross-Claim: the documents that sets forth one Ds claim against one or more co-Ds.
(Answers to cross-claims are pleadings but cross-claims themselves are not)
Reply: the pleading by which a party responds to an answer or to a counterclaim.
Motion: an application to the court, usually submitted in writing, that requests an order.
Rule 5: Service and filing of pleadings and other papers.
Rule 6: Computing passage of time.
Rule 7: Pleading
7(a) Six types of pleading: 1) complaint, 2) answer, 3) reply to counterclaim if so denominated, 4)
answer to cross-claim, 5) 3rd party complaint, 6) 3rd party answer
7(b) Motions: except if made during trial or hearing= written, signed [Rule 11], stating with
particularity grounds for the motion & what relief or order sought.
Rule 11(a) All pleadings, written motion, and other docs to be signed by
attorney or by party if pro se + address and phone number. An unsigned
paper to be stricken unless omission promptly corrected upon discovery.
Code Pleading versus Rules Pleading:
1. Code pleading requires the allegation of facts, more specific.
2. The Rules standards for pleading are very generous.
FRCP 8 allows the pleading of conclusions of law, (although this is not stated
explicitly in Rule 8).
The FRCP attempts to limit the role of pleading to the giving of notice of the plaintiff's
basic grievance to the defendant and the court:
[Conley v Gibson (USSC 1957): ―In appraising the sufficiency of the complaint we follow, of
course, the accepted rule 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.‖]
In Code Pleading, a complaint can be inadequate for the following reasons:
1. It fails to allege anything (facts or conclusions of law) pertaining to an
element(s) of the law in question.
2. It states conclusions of law pertaining to an element(s) of the law in
question, but fails to state facts.
Gillispie v. Goodyear Service Stores (SC NC 1963): The trial court held that Ps
complaint did not contain sufficient facts to constitute a cause of action. The court
upheld the lower court’s sustaining of defendants’ demurrers.
Rannels v. S.E. Nicholas, Inc. (3 rd Cir. 1979): Jeans case. Malicious prosecution. DC
erred in applying Code Pleading standards requiring pleading of facts not
3. It alleges facts that, even if proven, are not legally sufficient to satisfy the
element(s) of the law in question. [12(b)(6)] Conley standard see above.
o Under the Rules, the complaints described in 1 & 3 are inadequate, but the complaint
described in 2 may not be (because conclusions of law are permissible, so long as they
address every element of the substantive law in question, and, along with other allegations,
provide enough information that the defendant and the court have a basic understanding of
o Under the Rules Defects 1 and 2 can be corrected by redrafting the complaint.
o Under the Rules Defect 3 reveals that the plaintiff has no case. Courts cannot always tell
whether an insufficient complaint suffers from Defect 3 (rather than 1 or 2). Generally,
where there is a reasonable chance that an amended complaint could cure the defect and
state a legally sufficient claim, a court will grant leave to amend. After amendment, the
court may dismiss the case with prejudice (preventing refiling), based on its determination
that there is no set of facts/conclusions that the plaintiff can allege that are legally
To draft an adequate complaint, must always start by listing the elements of the
substantive law, (invoke body of law + relate facts that fall under that body of law).
2) Violation of Duty
3) Consequence of violation
E.g. the elements of a claim for negligence are:
1. Defendant owes plaintiff a duty
2. Defendant was negligent (acted unreasonably)
3. Defendant’s negligence caused a problem (e.g. an accident)
4. Plaintiff was harmed.
General Rules of Pleading the complaint: RULE 8(a), (e), (f)
8(a): a complaint must have three essential elements:
a. Jurisdiction: A short and plain statement of the grounds upon which the
court’s jurisdiction depends;
b. Statement of the claim: A short and plain statement of the claim showing
that the pleader is entitled to relief;
c. Relief: A demand for judgment for the relief (e.g., money damages,
injunction, etc.) which the pleader seeks.
“Relief in the alternative or of several different types may be demanded.”
o Functional test: Will court and adversary know what the claim is about?
o Technical test: Are all elements satisfied?
8(e): Pleading concise; doesn’t have to be consistent
(1): pleading to be concise and direct, no technical forms of pleading or motions
are required. (Omit evidentiary material.)
(2): A party may set forth two or more statements of claim or defense. The
insufficiency of one claim does not necessarily lead to the insufficiency of
the other(s). Claims do not have to be consistent. All claims are subject to
8(f): Adequacy of Pleadings
As long as pleading provides adverse party with proper notice of claim or defense,
courts will not be hypertechnical.
Rule 9: special pleading requirements
(b) fraud & mistake pleaded with particularity
malice, intent, knowledge and other conditions of mind pleaded generally
Burden of Pleading
1) Burden of pleading: one must allege an element of the claim or defense
rather than expect the other party to do so.
2) Burden of production: at trial one must produce evidence to try to prove
3) Burden of persuasion: one must persuade the trier of fact that one’s version
is more likely.
Burden of Pleading:
I. Rationales for allocating burdens:
1) burden on party likely to have easiest access to knowledge about the matter in question, i.e.
that can produce/satisfy burden most easily & in best position to know (fairness).
2) burden on the party asserting the improbable—presumption of innocence
3) policy considerations, make it fair, distribute burden, where to assign risk of error
4) Statutory language suggesting burden allocation (i.e. §1983 only requires 2 allegations to
create a cause of action)
II. Effects of burdens
1) If P doesn’t plead elements which it has burden to plead, Ps complaint will be dismissed
2) If D doesn’t allege elements or defenses which are Ds burden, D waives that defense
3) burden of pleading generally tracks burden of proof
4) burden of proof decides close cases
Plaintiffs are not expected to contend with the potentially voluminous catalogue of conditions
that defendants might assert to excuse their breach. The plaintiff need only plead, in general
terms, that he performed conditions precedent, leaving the defendant to plead, in the answer,
the specific conditions she wishes to put at issue (i.e., which conditions she claims the plaintiff
failed to fulfill).
CASE: Gomez v. Toledo (US 1980) Y446-450.
Assigns burden of pleading good faith in immunity cases to D. Immunity is a defense, so burden
of pleading it lies with D. D has better access to information showing good faith. Per statute, §
1983, P only has to allege he was deprived of a federal right & person who deprived him acted
under color of law.
Pleading qualified immunity in civil rights cases, 42 USC §1983:
In some cases, public officials acting in their official capacity can claim a qualified
immunity at the pleading stage if their actions took place under a reasonable
misapprehension of the law.
CASE: Leatherman v. Tarrant County (US 1993):
P accuses police of violating civil rights by improper searches. Police/government officials
have qualified immunity so not subject to frivolous lawsuits and can do job. Ruling: can’t
have different standard of pleading due to the type of claim involved. These conclusions not
extended to individuals.
• courts have tried to deal with the conflict between notice pleading and Q.I. by requiring P to
make a reply to Ds answer, [R7(a)] (Schultea v Wood 5th cir only, 1995).
Pre-Answer Motions [optional]
Used in order to try to get suit dismissed without having to answer the allegations.
**12(e) and 12(f) must be made before proceeding to responsive pleading.
12(e) Motion for a more definite statement in the complaint
o 12(e) appropriate where complaint does state claim for which relief is
available but which is so vague or ambiguous that no response can be
o These motions are granted sparingly because of liberal requirements of notice
o Not a substitute for discovery.
o May be especially applicable in Rule 9 special pleading obligations.
o While pending, stops running of clock for filing of response.
Burden of proof on moving party
**If 12(e) is granted, and P files new complaint, D can file 2 nd pre-answer motion and include
other 12(b) motions**
12(f) motion to strike insufficient defense, redundant, immaterial, impertinent, or scandalous
o Motion may be made by either party on any pleading or by court sua sponte
o Movant must show that challenged allegations are clearly unrelated to the
pleader’s claims and that the movant would be prejudiced if the allegations
remained in the pleading.
o Movant must state basis for motion with particularity and identify the specific
o Parallel to 12(b)(6), may be used to strike any defense that is legally
Burden of proof on moving party
Rule 12b defenses may be made in a pre-answer motion or in answer if no pre-
answer motion filed,
**12(B2-5) MUST BE MADE IN THE FIRST RESPONSE TO THE COMPLAINT, WHETHER A
PRE-ANSWER MOTION OR THE ANSWER. . IF THESE OBJECTIONS ARE NOT MADE IN
THE FIRST RESPONSE, THEY ARE WAIVED. [RULE 12(H)(1)]
12(B1, 6-7) ARE NOT WAIVED [RULE 12(H)(2) AND (3)]
AND MUST BE BUNDLED [RULE 12(G)]
** 12(B1)(B6-7) CAN BE MADE AT ANY TIME DURING THE PROCEEDINGS.
12(b) Motions to dismiss
(1) lack of jurisdiction over subject matter FATAL (anytime)
(2) lack of jurisdiction over person FATAL
(3) improper venue FATAL
(4) insufficiency of process Amendable
Burden of proof on P
(5) insufficiency of service of process Amendable
Burden of proof on D
(6) failure to state a claim upon which relief can be granted Amendable (anytime)
o asserts a legal theory not cognizable as a matter of law
o fails to allege sufficient facts to support a recognized legal claim
o Court views pleading in light most favorable to non-movant; court presumes all well-pleaded
allegations are true; court resolves all doubts in favor of non-movant.
o A 12(b)(6) motion concedes the truth of the allegations, and contends that the complaint is
o Complaint will only be dismissed if it appears beyond doubt that the pleader can prove no set of facts
in support of the claim that would entitle pleader to relief.
o Only relates to pleadings. If other material introduced, treated as summary judgment Rule 56.
Burden of proof on movant
[Rannels v. S.E. Nichols, Inc., pg. 3 above]
(7) failure to join a party under Rule 19 Amendable (anytime)
Ruling granting a 12(b)(6)/12(c) motion is a final order and thus immediately
appealable by de novo standard.
Ruling denying a 12(b)(6)/12(c) motion is interlocutory and ordinarily not
Exceptions: denials of motions to dismiss that assert certain types of immunity
issue appealable under collateral order doctrine, §1292 (b).
Other preliminary motions: enlargements of time, amend a pleading, intervene, substitute
parties, enter a stay or order the posting of security.
Responds to the allegations of the complaint and asserts any additional information or
affirmative claims that the D may have against the P.
This is the 1st opportunity to assert legal and factual defenses.
Action to be taken by D:
Admit, deny, no information [R8b]
Raise affirmative defenses [R8c]
Assert counterclaims [R13]
Types of reactions to complaint
o General denial – only if the entire claim is false
o Qualified general denial—deny all averments except specific ones
o Specifically admit/deny each element
o Denial based upon insufficient evidence (creates duty of investigation)
o Affirmative defenses (many must be raised here, or are waived)
o Counter-claim (in which case anything P can do to D, D can do to P)
RULE 9 requires that certain matters be specifically denied
An averment not properly denied is deemed admitted
Denials must meet substance of the averment.
Answer has to match complaint in specificity
General Rules of Pleading the answer: RULE 8(b), (c), (d)
Rule 8(b) Defenses- Form of Denials
o Statement in short and plain terms of the defense to each claim.
o Must admit and deny where appropriate.
o Party must state if they don’t have enough info to respond.
o Denials and admissions should be specific to the claim.
o General denials to be subject to obligations of Rule 11
Zielinski v. Philadelphia Piers Inc. (ED Pa 1956)
(forklift on the docks)
The complaint alleged that PPI both owned and operated the forklift.
i. P responded with a general denial of negligence.
ii. After the statute of limitations expires, P finds out that D does not own (it sold the
business to CCI), it merely operates.
iii. The court permits a counter-factual jury instruction saying that PPI did own the forklift.
Why? Turns out that the same insurance company represented both CCI and PPI. Since
that company had a mutual interest, and was the ―real party,‖ it’s possible there was
deliberate deception here.
Rule 8(c) Affirmative Defenses (Any fact asserted by the respondent that vitiates the opposing party’s claims)
Provides for pleading of affirmative defenses and allows misdesignated couterclaims
to be deemed affirmative defenses.
o Affirmative defenses may be waived if not raised as affirmative defenses.
o All affirmative defenses are automatically denied and therefore require no
Party raising affirmative defense has burden of proof.
Arbitration agreement is an affirmative defense.
Layman v. Southwestern Bell Telephone Company (M0. Ct App 1977)
P alleges trespass by D b/c of digging unauthorized trench and continuing to enter
land. SBTC responds with a general denial, not mentioning the affirmative defense of
an easement. Ct.App. ordered new trial after trial ct. failed to sustain P’s objection to
an affirmative defense to allegation of trespass = false. Defendant must state in
answer that they are arguing an affirmative defense, as laid out in FRCP 8(c).
Rule 8(d) Effect of Failure to Deny
If a response is required, a party failing to respond is deemed to have admitted all
averments, except the amount of damages. This applies equally to responses to
counterclaims and court-ordered replies.
But, if a response is not required, a party is deemed to have denied all averments.
Don’t forget: Rule 12(b) motions may be raised in the answer
if no pre-answer motion was filed.
Rule 12(a) Timing
(1) party must serve an answer to summons + complaint due within:
(A) 20 days after being served
(B) 60 days after date request for waiver sent, if service was waived, if in US;
90 days if outside US
(2) answer to cross-claim or counter-claim within 20 days of service of pleading/answer
(3) US govt has 60 days to answer complaint or cross-claim
(4) Service of Rule 12 motions alters timing (only for Ds who file R12 motions):
(A) if court denies motion or postpones it to trial, responsive pleading to be
served within 10 days after notice of court’s action
(B) if court grants 12(e) motion, responsive pleading to be served within 10 days
after service of more definite statement.
Exception: time to serve response isn’t stopped when Rule 12(f) motion to strike is
12(c) Motion for judgment on the pleadings
o May be made after pleadings are closed, if no material facts remain at
issue, and dispute can be resolved based on pleadings.
o Can be made any time after pleadings are closed, but if made too late
may be dismissed as untimely.
o Test same as for 12(b)(6)
o Will be granted if pleading demonstrates that moving party is entitled
to judgment as a matter of law
o Used as a delayed 12(b)(6) on complaint alone or a challenge to legal
sufficiency of complaint in light of particular defenses raised in answer
No amendment allowed. If granted=final judgment.
Appealable only if granted.
12(d) Preliminary hearings
o Party may request court schedule 12(b) and 12(c) motions for pre-trial hearing and
o Necessary when 12(b) defenses asserted only in the answer
Rule 15(a): a response to an amended pleading shall be made within time remaining before a
response to the unamended pleading was due or within 10 days after amended pleading
served, whichever is longer. Subject to discretion of court.
AMENDMENTS TO PLEADING [RULE 15]
Amend pleadings as discovery improves understanding of the case.
Rule 15 (a) Amendments
o Party may amend pleading once before a responsive pleading is served
(a 12(b) motion is not a responsive pleading [Rule 7(a) & (b)]!)
o If pleading requires no response and action not yet placed on trial calendar, can amend
at any time within 20 days after pleading served
[A response is not permitted to an answer to an original complaint]
o Otherwise, to amend must have leave of court or written consent of opposing party
o Court shall freely grant leave when justice requires
o Response to amended pleading to be made within 10 days of service of amendment or
within time remaining to answer original pleading, whichever is greater.
(Rule read to mean that 1) amender has to have good reason for not getting the
pleading right in the first place, and 2) that allowing the change shouldn’t
hurt/prejudice the other party too much.)
Appeal standard= abuse of discretion: common for appeals court to find abuse if
amendment is NOT allowed, because there is generous presumption in favor.
Rule 15 (b) Amendments to conform to the evidence
Allows amended pleading when 1) an issue not raised in the original pleading is tried
by consent of the parties, and 2) an issue not raised in the pleadings is objected to, but
the proposed amendment will not create unfair prejudice, or such prejudice could be
cured by other judicial action. (Generally made at trial)
Rule 15 (c) Relation back of amendments
(1) When applicable statute of limitations allows relation back
(2) When the new claim arises out of the original claim pleaded
(3) When the amendment changes name of party or the party against whom claim is
made, if provision #2 is also satisfied and if the new party is correctly summonsed,
(A) if party received enough notice not to be prejudiced in maintaining defense
(B) if the new party knew or should have known except for a mistake that the
action would have been brought against it.
15(c) deals only with question of whether an amendment will be treated as though it
was filed at an earlier date—due to statute of limitations issues. First party has to
convince court that amendment is allowable at all.
NB: only applies when there is a statute of limitations issue
and when amending the original complaint.
Appeal standard=de novo for if it applies at all, Clearly erroneous on factual issue
Beeck v Aquaslide (8th Cir. 1977)
P sues presumed maker of waterslide. Statute of limitation for P runs, then 6 months
later, D discovers it did not make waterslide and moves to amend pleading. Court
found no evidence of bad faith by D. Court deems possible prejudice to P insufficient
to deny D right to amend.
Moore v. Baker (11th Cir. 1993)
Woman sued Dr. for failure to provide informed consent. After SofL ran, she wanted
to amend pleading to include negligence. Court denies because amended claim
doesn’t relate back by Rule 15(c)(2).
Bonerb v. Richard J Caron Foundation (WDNY 1994)
P sues D, rehab clinic for personal injury during mandatory exercise program.
Changes lawyer, wants to amend pleading to complaint for counseling malpractice.
SofL for this action has run. Court allows because claim relates back to original
pleading, so gave sufficient notice to D.
Rule 15 (d) Supplemental pleadings
Court may allow pleadings of things that have happened since the date of the original
Rule 12 and amended pleadings:
When litigants amend their pleadings, the respondant may withdraw answers or replies
and replead. If an amendment adds new matter that gives rise to new, previously
inapplicable 12(b) objections, the 12(b) motions may be asserted.
Court is not likely to grant leave to amend due to:
o undue delay in filing amendment
o bad faith in not filing claim in original pleading
o prejudice to other party
Prejudice is determined if amendment would put opposing party is a
worse condition due to the passage of time than it would have been if
the claim had been included in the original pleading. Courts have
discretion in determining prejudice.
Foman v. Davis (US 1967) established rules for amendments.
RULE 11 REGULATION OF REPRESENTATIONS TO COURT
(a) signature required
(b) Representation to court
By signing writing, attorney or pro se party certifies that to the best of their knowledge,
information, and belief, formed after an inquiry reasonable under the circumstances
(1) writing is not presented for improper purposes, e.g. to harass, delay, or increase
[Party may be sanctioned for violation]
(2) claims, defenses, other legal contentions are warranted by law or by a nonfrivolous
argument to change the law.
[Only lawyers may be sanctioned for violation]
(3) allegations and factual contentions have evidentiary support or will have it if
(4) denials of factual contentions are warranted on the evidence, or if so identified, are
reasonable based on lack of information.
If after notice and reasonable chance to respond, court determines § (b) violated, can
impose sanctions upon attorneys, law firms, or parties responsible.
(1) How Initiated
(A) By Motion:
o Motion for R11 sanctions made separately from all other motions
o Shall describe specific conduct alleged to violate 11(b)
o Safe Harbor provision: motion served but not filed with court until 21 days
later if the challenged paper is not amended or withdrawn
o If warranted, court may award attorney’s fees incurred in presenting or
opposing motion to prevailing party
(B) On Court’s initiative: Court may direct attorney, law firm, or party to
show why it has not violated 11(b)
[No provision for safe harbor when court initiates sanctions]
(2) Nature of sanctions
o Limited to deterrence effect
o Non-monetary sanction, payment to the court, (least preferred) payment of
(A) Monetary sanctions may not be awarded against a represented party for an
(B) Monetary sanctions not to be awarded on court’s initiative unless court
issues order to show cause [11(c)(1)(B)] before voluntary dismissal or
settlement of the complaint is made.
(3) Order: when imposing sanctions, court has to explain which conduct caused the
violation and explain the basis for the sanctions.
(d) 11(a)-(c) do not apply to discovery, which is governed by Rules 26-37.
Business Guides v. Chromatic Communications Enterprises (US 1991)
(came under 1983 amendment)
P complained of 10 seeds in competitor’s directory & sought TRO. DC clerk
found out 9 were not copyright infringement at all. Case referred to Magistrate
who found 1) TRO filing, while w/o proper research, was not sanctionable due to
urgent need to act quickly; 2) failure to inquire about accuracy after learned of
Clerk’s discovery sanctionable. Parties and lawyers may be sanctioned under
FRCP 11 where complaint is filed with insufficient research that would easily
have shown claims are groundless, and where parties repeatedly fail to correct
erroneous filing. No bad faith, but Rule 11 violated. Fined amount of Chromatic
legal expenses and costs.
―The standard of conduct under Rule 11 is one of objective reasonableness.‖
Religious Technology Center v. Gerbode (C.D. Cal 1994)
D (Gerbode) sought attorney’s fees from P (RTC) under Rule 11 because P sued D
for RICO violations and that case was dismissed.
Problem – Rule 11 became effective the day the underlying case was dismissed, so
P say that Rule 11 motion should not be considered because it violated the safe
harbor provision. This is irrelevant, because the purpose of that provision is moot
because case had been dismissed.
Other Rule 11 issues:
o Threats of frivolous law suits are not covered under Rule 11,
o Only applies to signed papers.
o Rule 11 reaches conduct that is merely negligent (reasonableness standard),
not willful (intent-based standard) and imposes affirmative requirements of
diligence and candor. Even so, court has other power (inherent powers) to
impose punishment for improper behavior.
o Rule 11 applies only to in-court actions, embodied in a final document, by
lawyers and parties
o Appeal standard: normally abuse of discretion, but some factual
determination under clearly erroneous. No de novo question because this is
not about law but about whether Court’s argument for sanctions is reasonable.
12(b) motions compared to Rule 11 sanctions
1) Rule 11 = improper purpose, frivolous legal claim, no evidentiary factual
support. 12(b) = insufficient legal claim, no cause of action
2) Rule 12(b)(6) is a challenge to the party and its claim, whereas Rule 11 is a
challenge on documents.
3) Why use a 12(b) motion?
o Faster dismissal (no safe harbor waiting)
o You don’t have to answer the complaint
o ―Stops clock‖ on claim – judge may sit on 12(b)(6) motion and try to
decide, extends answer/response time. Rule 11 motions pend while
o Easier to get 12(b)(6) motion granted. Rule 11 motions for sanctions
less likely to be granted
o Rule 11 annoys court – it is more adversarial. If you just want to get rid
of complaint, no revenge/sanctioning, use 12(b)(6)
4) Why use a Rule 11 sanction?
o To get sanctions imposed
o To highlight inappropriateness of the complaint
o Only possibility if claim is merely reckless in allegations of facts but
does allege a legal claim.
o 12(b)(6) leaves room for party to amend the complaint and continue the
Purpose: Discovery allows a party to expand on the notice given by the pleadings and any
disclosures and to prepare for and shape disposition of the case. Carried out largely by
Basic structure: 26(b)(1) any matter, not privileged, that is relevant to the claim or defense of
i. Relevant means evidence that might lead to material admissible at trial, it need not be
itself admissible. ―Any matter that bears on, or that reasonably could lead to other matters
that could bear on, any issue that is or may be in the case.‖
Because pleading is so vague, standard of what is relevant must be broad to allow
discovery to show where pleading needs to be amended. Otherwise, would have to
plead multiple theories.
ii. Privileged refers to the confidentiality, work product, trial preparation and mental
Attorney-client privilege only extends to communication, not to facts revealed during
the communication. If client told lawyer something, and that info is requested in
interrogatory, etc., lawyer cannot facilitate perjury by allowing client to deny it.
Protection of material prepared in anticipation of litigation is held to lower standard
of privilege than special relationships like doctor-patient or attorney-client.
Party opposing production has burden of demonstrating that information is relevant
Privileges are waived by voluntary disclosure.
Automatic Disclosure Rule 26(a)(1-4): no need for request or demand.
26(a)(1) Except categories listed 26(a)(1)(E) or otherwise ordered, disclosure is
(A) name, address, phone # of anyone likely to have info that disclosing party might
use to support its case
(B) copy or description of all docs, data, tangible things disclosing party might use
(C) computation of damages and data on which it is based, per Rule 34
(D) any insurance agreements that might cover all or part of judgment
(E) exceptions exempt from disclosure, including action brought by prisoner without
o Disclosures must be made within 14 days of Rule 26(f) conference unless changed by
court order, or unless party objects during conference to disclosures.
o Party served or joined after conference has 30 days to make disclosures unless
changed by court order.
o Party has to make disclosures based on what it knows and is not excused because it
has not completed investigation or because it challenges sufficiency of other party’s
disclosure, or because other party has not made its disclosures.
Only covers information disclosing party may use to support its position or defend against
other party’s allegations.
Disclosure pertains to disputed allegations only.
Scope of discovery depends on degree of specificity in pleadings.
Disclosures in writing, signed, served on other parties and filed with court.
26(a)(2) Disclosure of Expert Testimony
(A) also automatic disclosure of any expert who may be used at trial
(B) unless court orders otherwise, must disclose written report of expert, c.v., fees
(C) disclosures to be made 90 days before trial date, or if evidence is solely for
rebuttal within 30 days after disclosure made by other party.
Failure to disclose a report may result in witness not being allowed to testify.
A treating physician doesn’t have to file expert report in order to testify.
Standard of appeal of court’s order to exclude expert testimony= abuse of discretion.
26(a)(3) Pretrial Disclosures: parties must provide and file with court info they will
present at trial
(A) name + address of witnesses, separating those who will be called from those who
may be if needed
(B) designation of witnesses whose testimony will be presented by deposition +
transcripts of relevant sections
(C) identification of all exhibits, separating those that will be used from those that
may be if needed.
o Disclosures must be made at least 30 days before trial unless changed by court.
o Within 14 days after disclosure, party may serve and file list of
(i) objections to use of deposition under Rule 32(a)
(ii) objections re: admissibility of matierals identified under 26(a)(3)(C)
o Objections not raised are waived except for good cause
26(a)(4): all disclosure under 26(a)(1-3) to be made in writing, signed, and served
26(a)(5): Other methods of discovery
Depositions, interrogatories, document production, permission to enter property,
physical and mental exams, requests for admissions
26(b) Discovery Scope and Limits
o All matters relevant not privileged regarding documents, things, persons.
o For good cause, court can order discovery on anything relevant
o Info does not have to be admissible in court if it is reasonably calculated to lead to
the discovery of admissible evidence.
o All discovery subject to limits under 26(b)(2)**
NB: can’t properly object to discovery request for material that is relevant but would not be
admissible under the rules of evidence, as long as it can reasonably be presumed to lead to the
discovery of admissible evidence
26(b)(2) Limitations on Discovery
o By Rule 30 court can limit number of interrogatories or length and/or number of
o By Rule 36 court can limit number of requests
o Court can on own initiative or under 26(c) motion to limit discovery because:
(i) discovery unreasonably cumulative or duplicative – could be obtained
(ii) party already had ample opportunity to seek info via discovery
(iii) burden or expense outweighs likely benefit to case, taking into account:
needs of case
amount in controversy
importance of issues at stake
Court can enter protective orders even if requested material meets relevance standard.
Theory behind protection and privilege: value of the information produced must be weighed against
intrusion of privacy. Stalnaker v Kmart Corp (KS 1996) plaintiff trying to force witnesses
to testify to sexual harassment.
If an appeal is allowed regarding undue hardship, standard is abuse of discfretion.
26(b)(3) Trial Preparation: Materials (Work Product Rule)
o Upon showing 1) substantial need, 2) hardship in obtaining equivalent material,
party can obtain discovery of info prepared in anticipation of trial or for another
party or his agent.
o Court protects mental impressions, conclusions, opinions, or legal theories of an
attorney or other representative of the party concerning the litigation
o Without required showing, party can obtain any statement it made previously about
o A person not a party can request without showing any statement it made previously
about the matter.
o If request is refused, person may move for court order, Rule 37(a)(4) sanctions apply
Three categories of work product:
1. Documents prepared in anticipation of litigation containing info that can reasonably be
found elsewhere—discovery is barred
2. Court may order discovery if requesting party shows substantial need for the info and
that similar info can’t be otherwise obtained without substantial hardship.
3. Lawyer’s thought process in preparing a case (legal theories or litigation strategies)
cannot be discovered.
Work product does not refer only to documents produced by lawyers but by party or his agent.
It’s not necessarily work product prepared in anticipation of litigation if no suit had yet been
filed when it was prepared. Have to test this based on quasi-rule: prepared because of
prospect of litigation.
Work product rule does not protect facts lawyer might uncover in preparation for litigation.
So if asked, he has to answer. (E.g. who did he talk to.)
Party asserting work product protection has burden of proof that docs are work product.
Then party who wants the documents has burden to show necessity.
If there is an appeal allowed under collateral order doctrine: de novo.
Hickman v. Taylor Y525 (US 1947)
Created work product rule. Lawyer goes to jail protecting tugboat company in suit for
wrongful death. Lawyer talked to witnesses in anticipation and was asked to recount
interviews he had not written down and provide his notes. Court holds this turns
lawyer into a witness and prevents him from doing his job.
26(b)(4) Trial Preparation: Experts (Work Product Rule)
(Reason for rule: expert’s knowledge is relevant so within presumptive scope of discovery, but
Rules create limits, especially around non-testifying experts who are party to trial strategy.)
(A) testifying expert: party may depose an expert of the opponent who may testify at
trial. If report is required, deposition conducted after it is produced.
Must disclose names of testifying witnesses at least 90 days before trial
(B) non testifying expert: only per Rule 35(b) or showing of exceptional
circumstances such that party can’t get same info elsewhere, party may depose or
give interrogatory to expert retained by opponent in anticipation of trial but not
expected to testify
No discovery of experts informally consulted but not retained.
(C) unless unjust,
(i) court requires party seeking discovery to pay expert a fee for time
(ii) per 26(b)(4)(B) party seeking discovery shall pay opponent a portion of fees
of the expert incurred by the opponent in seeking his advice
Thompson v. The Haskell Co. (sexual harassment)
Mental exam not privileged because done close in time after harassment and because there is
no other way to duplicate information.
Chiquita International Ltd. v. M/V Bolero Reefer (bananas)
Court did not allow observations of non-testifying witness because defendant had plenty of
opportunity to do its own inspection of the ship. But facts are discoverable.
Distinguish between experts retained in anticipation of litigation and those used by company on a
normal basis. The latter is just a witness and not protected, nor is his work.
26(b)(5) Privilege or Protection of Trial Preparation Material
When party refuses to disclose claiming privilege or work product, it still has to
describe the material so other party will be able to assess whether it really is privileged
or protected. Party objecting has to expressly claim privilege.
This allows opposing party to get sense of whether material really should be privileged and if
not to file motion to compel [Rule 37(a)(2)].
26(c) Protective orders: court has discretion to limit or bar discovery.
-upon motion of party from whom discovery is sought
-with certification that party made good faith effort to work out the problem before
going to the court
-for good cause shown
-court can take action to protect party or person from annoyance, embarrassment,
oppression, or undue burden or expense.
Actions include: disallowing or limiting disclosure or discovery; limiting
discovery means; making discovery more private; sealing depositions;
protecting trade secret, etc.
Coca-Cola Bottling Co v Coca-Cola Co (D Del 1985) trade secret. Y513
-If protective motion is denied, court can order discovery and award expenses per R
May be filed by party or witness from whom info is sought.
Party seeking protective order has burden of showing good cause.
Most common with depositions because only means to challenge it in advance, often due to
scheduling of second deposition of same person.
Standard of appeal: discovery orders usually not immediately appealable because not final,
but if appealed, e.g. at end of trial, criterion is abuse of discretion. Might be able to argue
collateral order doctrine because of sensitive nature of some info, once exposed, can’t
26(d) Timing and Sequence of Discovery
-Have to wait for 26(f) conference before starting discovery.
-Unless court orders otherwise, discovery can be conducted in any order
-Can’t delay other party’s discovery
26(e) Supplementation of Disclosures and Responses
Have to supplement disclosure or discovery request if ordered to by the court or:
(1) if party learns information disclosed is incomplete or incorrect and if the correct
info hasn’t been otherwise conveyed to the opposing party over the course of
discovery or in writing. Regarding expert testimony, duty extends both to report
and info provided in deposition.
(2) duty to amend response to interrogatory, request for production, or request for
admission if the info hasn’t been otherwise communicated during discovery
process or in writing.
If it’s really important to the case, make sure it gets properly disclosed so it won’t be thrown
26(f) Disclosure Conferences and Planning
At least 21 days before Rule 16(b) conference, parties must confer about discovery and
possibility of settlement or resolution, arrange for disclosures, develop discovery plan.
(1) decide what changes should be made in timing, form, or requirement for
disclosures under 26(a)
(2) decide which subjects need to be discovered, when discovery should be complete,
and whether to proceed in phases or to limit it to certain issues.
(3) decide what limitations should or should not be imposed
(4) decide any other orders that court should enter per 26(c) or 16(b)-(c)
This allows parties to raise objections to initial disclosure which court must rule on before party
has to make the disclosure. This also resets the clock for timing of disclosure. Even if some
disclosures are objected to, that does not suspend duty to make other disclosures.
26(g) Signatures [Rule 11 parallel for discovery but mandatory, aimed at lawyer]
(1) every disclosure signed by attorney or record + address, if no attorney, signed by
party + address. Signature is certification to best of signer’s knowledge, info, and
belief, formed after reasonable inquiry, disclosure is complete and correct.
(2) Idem for discovery material
(A) request, response, or objection is warranted by law or good faith argument
for new law
(B) request, response, or objection is not intended to harass, delay, increase
(C) request, response, or objection is not overly burdensome or expensive
given needs of the case, discovery already had in the case, amount in
controversy, importance of issues in case [cf 26(b)(2)]
If request, response, or objection is not signed, will be stricken unless corrected and
party not obligated to act on it until signed.
(3) If violation of these rules without substantial justification, court shall impose
sanctions which may include reasonable expenses incurred because of violation.
DISCOVERY DECISION TREE
a. Is it a document or tangible thing?
i. No – not discoverable, stop.
ii. Yes – proceed.
b. Otherwise discoverable? (i.e. is it relevant and not privileged?)
i. No – not discoverable, stop (the info is either irrelevant or is privileged).
ii. Yes – continue.
c. Prepared in anticipation of litigation?
i. No – Discoverable.
ii. Yes – Continue
d. Substantial need (undue hardship/no substantial equivalent)? [necessity test]
i. No – Not discoverable
ii. Yes – continue
e. Mental impressions, legal theories, etc.
i. If there are none, whole thing is discoverable
ii. Some – discovery minus any material pertaining to mental impressions, the
court reviews and redacts the information, releasing a product that isn’t
―work product of the attorney.‖
f. This does NOT mean that lawyers or parties can never be required to reveal
information about legal theories or mental impressions. With a motion to dismiss,
you’ll need to answer and make a legal argument that you are eligible for relief.
(i.e. you’re revealing your basic legal theory.)
1. 12 (b)(2) motion- dismiss for lack of personal jurisdiction- doesn’t suspend discovery;
but may request postponement
2. opp. party only responsible to turn over info. in their control- don’t have to conduct
invest. to get
3. no ethical bar to lawyers advising client to destroy damning evid. before claim filed.
But probably not best idea impossible to destroy all files
4. Courts can only subpoena witnesses w/in district- if want to subpoena outside must go
to that district’s court.
5. 30 days before trial- must disclose all documents & exhibits intend to use
6. 90 days before trial- disclosure of info. on qualifications, compensation, & opinions of
7. Discovery is not necessarily suspended because a rule 12(b) objection is pending, but
movant could ask court to stay discovery pending resolution of motion to dismiss, but
court might not look favorably on this.
Rule 30 Depositions
o Can use depositions to explore material party has refused to produce in other forms since
deponent must usually answer relevant, not-privileged questions in depositions even if he
objects [Rule 30(c)].
o But where objection is based on a privilege, counsel for deponent can instruct him not to
answer. [Rule 30(d)(1)]
o Rule 30(d)(4) provides limits on what can be asked, allowing suspension or limitation where
questions are in bad faith, or asked to annoy, embarrass, or oppress unreasonably. If
lawyer for deponent raises objections, can indicate intention to file 30(d)(3) motion and
instruct deponent not to answer.
o Witness is sworn, so subject to penalties for perjury.
o Frequently taken toward end of discovery, but using them at the beginning before deponents
have story down is a good strategy too.
o Anyone can be deposed, not just parties, but a non-party has to be subpoenaed per Rule 45.
Subpoena duces tecum used if person is requested to bring evidence with.
Rule 33 Interrogatories: only to parties
(a) can be sent without leave of court to any party, can only include 25 parts. To serve
more than 25, have to have leave of court per 26(b)(2).
(b)(1) under oath answer or state objection to each interrogatory
(2) answers signed by party, objections signed by attorney
(3) have 30 days to serve answer
(4) grounds for objection must be stated with specificity. Any ground not stated
in timely objection is waived except for good cause shown.
(5) party submitting interrogatory may move for Rule 37(a) sanction for failure to
answer or to challenge objections.
(d) may respond by offering to produce business records, but burden of searching the
documents has to be substantially the same for either party, and documents’
location, and organization have to be explicitly explained.
A party answering interrogatories has no duty to do a detailed investigation of facts outside its
control. The party has to respond based on what it does know, and has to do a reasonable
investigation of the facts under its control.
If a party believes a matter is not relevant or is privileged, can object and refuse to answer, but
still have to expressly claim privilege and describe the nature of documents, etc. withheld
Interrogatories must be served on all parties to the action and usually filed with the court, not
just the responding party.
Rule 34 Document production
(a) scope is broad, including documents, tangible things, permission to enter onto land or
to conduct tests. Requested material/property must be in possession or control of
party from whom it is requested.
(b) requests made with reasonable specificity
-30 days to serve written response to request, respond or object with specificity.
-Party submitting resquest may move for Rule 37(a) order with respect to objection or
failure to respond.
Draft broadly because party only required to turn over what is specifically asked for
Only applies to parties. Non-parties have to be compelled to produce under Rule 45.
Party that objects to producing document has burden of proof on a motion to compel
production to show it has a good reason to refuse.
Failure to object is waiver.
Rule 35 Mental and Physical Examinations
(a) only party or person in custody or under legal control of the party
--only where mental or physical condition is in controversy
--court order given only on motion for good cause shown and upon notice to person to
be examined and to all parties
Must have court order because so intrusive; other discovery requests do not require
Rule 36 Requests for Admissions
(a) 30 days, or as court orders, to provide admission, written answer, or objection.
-If wait too long, matter is deemed admitted
-Reasons for objections have to be stated
-Answers should be specific if not admissions
-Can’t plead lack of knowledge unless party has made reasonable inquiry
-If admissions insufficient, party seeking them can get Rule 37(a)(4) sanctions
(b) Parties can move to withdraw admissions if they discover that they have good
grounds to contest the facts.
Used for clean up. Once something has been admitted, it is not longer in dispute.
All parties must be served with copies of requests for admission.
Alternative to objections is to move for a protective order. Appropriate when most or all
requests are objectionable. Have to show parties tried to work out on own first before
going to court. [Rule 26(c)]
Appeals standard, as for other discovery issues, is abuse of discretion.
Rule 37 Sanctions: [for failing to give info or for abuse in requesting it]
(a) Motion for order compelling disclosure or discovery: made on reasonable notice
to other parties and persons affected
(1) to proper court
(A) may move to compel disclosure and for sanctions. Must certify attempt to
work out dispute before going to court.
(B) If party fails to properly respond to discovery tools, discovering party may
move for order to compel. Must certify attempt to work out dispute before
going to court.
(3) evasive or incomplete answer treated as failure to disclose, respond, etc.
(4) Expenses and sanctions
(A) if motion is granted, court shall require payment of reasonable expenses
incurred in making motion, unless good cause shown for failure, and unless
moving party failed to make good faith effort to resolve dispute between
(B) if motion is denied, court may order protective order [26(c)] and require
moving party to pay expenses incurred in opposing motion, unless good
(C) if granted in part and denied in part, court shall apportion sanctions
(b) Failure to comply with order
(1) If deponent fails to swear or answer, this may be contempt.
(2) If party or person designated under Rule 30(b)(6) or 31(a) fails to obey an
order to provide discovery, or if party fails to obey order under Rule 26(f),
the court may make the following orders:
(A) Facts will be taken in accordance with claim of party seeking order
(B) Refusal to allow non-providing party to oppose claims or introduce certain
matters into evidence
(C) Striking of pleadings, staying proceedings until cooperation is had,
dismissing action, or rendering default judgment against disobedient party
(D) Or, failure to obey orders except order to submit to mental/physical exam
can be held as contempt
(E) Party fails to produce a person under 35(a), orders under A, B, C above
apply unless party shows it was unable to produce person
In lieu of above or in addition to, court shall require disobedient party and
attorney or both to pay reasonable expenses (including lawyer fees) caused by
failure unless found justified or other circumstances make expenses unjust.
(c) Failure to disclose; false or misleading disclosure; refusal to admit
(1) Party without justification who fails to disclose information is not permitted to
introduce non-disclosed info/person/material as evidence, unless failure was
harmless. Court may also impose other sanctions. These sanctions may include any
under a, b, c of b(2) of this rule, including payment of expenses (including attorney
fees) and sanctions under 37(b)(A-E). Also may include telling jury of failure to
(2) If party fails to admit genuineness of document under Rule 36, and other party
proves it, requesting party may apply for order requiring opposing party to
pay expenses, including attorney’s fees. Court will make order unless
(A) request is objectionable under 36(a)
(B) admission not important,
(C) party failing to admit had reason to think other party would prevail on
(D) good reason for failure to admit
(d) If party or person designated under 30(b)(6) or 31(a) to testify fails
(1) To appear at deposition,
(2) To serve answers or objections to interrogatories
(3) Serve written response to request for inspection per Rule 34,
-the court may make orders in regard to failure. May take any action under
-Motion specifying failure under 2 or 3 here shall include certification that good
faith effort made to confer.
-Costs may also be imposed (including attorney fees) unless failure is justified
or circumstances make expenses unjust.
-Failure not excused on grounds that discovery is objectionable unless party
failing to act has protective order.
(g) Failure to participate in framing of discovery plan
If party or party’s attorney fails in good faith cooperation in development of
plan [Rule 26(f)], court may impose reasonable costs (including attorney fees)
caused by failure.
**Parties required to try to solve disputes before going to court for sanctions or orders**
--court can order motion to compel or grant protective order
--If party does not respond adequately to motion to compel, court must sanction it.
--To get discovery sanctions, must first move to compel or protect, then move for sanctions if that order
is not respected. For disclosure, don’t have to move to compel, just go straight to sanctions.
--Appeal standard on imposition of sanctions: abuse of discretion.
Controlled in Rules 26(g)—establishes rules for lawyer’s behavior, and 37—sanctions
Three types of abuses:
Too little discovery—stonewalling
Refusal to cooperate subjects party to sanctions.
Too much discovery—seeks more than necessary to hamper opponent
Responses to too much discovery: if 1) privileged or 2) irrelevant party can refuse to answer. If
simply burdensome, can get 26(c) protective order limiting discovery
Mismatched discovery where one party is much richer than the other
A rule 16 discovery conference can be used to work out problems with the involvement of the judge.
Such a conference may be convened by the court on its own motion.
Chudasama v. Mazda Motor Corp (11th Cir. 1997) Y549-559
Appellate court reviews abuse of discretion in trial court in not exercising better
control over discovery, in apparent bias in favor of P, and in not answering motion to
dismiss count of fraud which would have required more specific discovery.
―This case illustrates the mischief that results when a district court effectively abdicates its
responsibility to manage a case involving contentious litigants and permits excessive and
dilatory discovery tactics to run amok.‖
―The decision whether to impose sanctions under Rule 26(g)(3) is not discretionary. Once the
court makes the factual determination that a discovery filing was signed in violation of the
rule, it must impose an appropriate sanction.‖
Disposition Outside of Trial
SETTLEMENT [RULE 41(a) & 68]
o Most cases settle.
o Discovery often drives settlement because gives better sense of each sides’ case, is expensive,
o Judges can help push for settlement by giving side sense of the strength of their case.
o Settlements are contracts, enforceable in court
o Court does not have to approve settlements except in:
1. class actions [Rule 23(e)]
2. in cases involving minors
3. in some multi-defendant cases
a. Why settle?
i. Cheaper and faster than trials
ii. Realize the relative merits of each party’s case
iii. Can impose confidentiality
iv. Get out of discovery
v. Rule 68 motivation.
RULE 68: OFFER OF JUDGMENT: Any time within 10 days of beginning of trial, party
defending against a claim can offer to allow judgment against it and settle for money or
property + costs accrued. If offer if refused, and refusing party wins suit but award is less
than the settlement offered, refusing party has to pay own costs (including attorney’s fees) as
well as defending party’s costs (usually excluding attorney’s fees) accrued since offer.
b. Why not settle?
i. Vindication of being right
ii. Don’t want to capitulate to expediency
iii. Might get bigger settlement the longer you wait
iv. Want justice
v. Want the public to know about the other party’s misdeeds
vi. Common law is needed, part of our system, cf. Argument against ADR Luban excerpt in
photocopied materials pp. 45-46.
Rule 41 Dismissal of actions
(a) Voluntary dismissal of actions
1. By plaintiff, by stipulation: P can take action to dismiss without order of the
(i) by filing notice before D files an answer to the complaint or motion for
summary judgment, or
(ii) by filing stipulation for dismissal signed by all involved parties.
-Dismissal is without prejudice.
Notice requires no action of court.
Notice is effective when filed, but must be served to all parties.
Notice must be unconditional and unequivocal, though parties may privately impose
2. By order of the court: only other way to dismiss is by order of the court.
-If D has filed a counterclaim before P serves on D motion to dismiss, action
won’t be dismissed against D’s objection unless the counterclaim can be
-Dismissal is without prejudice unless otherwise specified in the order.
Two Dismissal Rule: first voluntary dismissal is without prejudice, second
dismissal acts as a final adjudication on the merits, and will preclude a third
action based on the same claim.
Action dismissed without prejudice doesn’t stop statute of limitations clock.
Appeal: denial of motion for voluntary dismissal is not appealable, but writ of mandamus will
lie if motion was to dismiss with prejudice. D may appeal notice of voluntary dismissal or
order granting motion for voluntary dismissal. P may not appeal prior rulings in action if suit
is dismissed without prejudice.
(b) Involuntary dismissal
-D can move for dismissal if P fails to prosecute, to comply with Rules or orders
of the court.
-Unless court specifies otherwise, involuntary dismissal (except because of
12(b)(1-3, 7) is adjudication upon the merits.
Appealable as a final order.
Dismissal agreements examples:
1. P agrees not to file a lawsuit: no litigation costs, but have to work out what claims the P
can’t sue on in the future.
2. P has filed suit and agrees to voluntary dismissal, however P can refile then D would have
to show in affirmative defense that there had been a settlement on the same claim already
3. D wants involuntary dismissal with prejudice --41(b)=judgment on the merits, defines the
claim by the judgment rather than the settlement, bars all related claims.
4. P files suit and stipulates to judgment against him and agrees not to refile the suit
5. stipulated or consent decree embodying the terms of the settlement in the judgment of
dismissal, so that the judgment sets for the obligations of the parties.
o Contracting for confidentiality: goal of many settlements is that agreement
Kalinauskas v. Wong (D. Nev 1993) Y589
P, suing for sexual harassment, seeks to depose a former employee of D who had settled a
sexual harassment suit against D under a confidential agreement.
Question=conflict between wanting to encourage settlement by allowing confidentiality and
wanting to inform public about wrongs by presenting a public forum. And, want to avoid
wasteful discovery by forcing P to do over what could be simply done by deposing the former
Court will allow deposition because D shouldn’t be able to conceal basic facts of the earlier
complaint, because it is relevant to Ps complaint. But can’t disclose substantive terms of the
o Contracting for judgment: can judicial pronouncement be vacated as part of
Neary v. University of California (CA 1992) (cattle rancher libel action) Y595
a. The court agreed to vacate the judgement of the trial court because parties agreed to settle
while the appeals were pending.
b. The court felt that it existed to do what the litigants wanted to reach an agreement. Both
sides really wanted the vacatur.
c. The dissent was worried about what this implied for general regard of trial court
judgments and discouraging prejudgment settlements.
d. Here, the parties were private, and no public issues were implicated. Also, the case had
dragged out over 13 years. Application of uncontroversial law to complicated facts.
e. No important legal issue at stake
Post-judgment settlement which demands vacatur of the decision may be allowed absent a
showing of extraordinary circumstances
U.S. Bancorp Mortgage Co. v. Bonner Mall (US 1994) Y598
Parties reach agreement on rescheduling debt after judgment of CofA and after SC granted
cert. Want SC to vacate judgment of appeals court.
Court refuses because 1) an important legal issue involved that needs to be resolved
(bankruptcy reform act and new value exception). 2) Public policy issue involved because
judgments are public, not property of litigants. 3) Judgments are presumptively correct, not
appropriate to discard judgments except on merits. 4) Disturbs judicial process. 5) May deter
settlement at earlier stage. BUT, 5) Vacatur must be granted when a controversy becomes
moot for no reason caused by the parties, or when mootness results from the unilateral action
of the party who prevailed in lower courts. (Remittitur and additur are similar.)
Why Settle Post-Judgment?
i. After trial court makes decision, losing party may want to appeal
ii. Parties may want to settle instead of going through time &
expense & effort of appeal
Arguments for Post-Judgment Settlement
iii. Settlement promotes efficiency
1. no appeals
2. limit litigation costs
3. judicial economy
iv. Accommodates parties’ interests, settles their dispute
v. Enforces role of public judiciary as a forum of peaceful dispute
vi. Diminishes respect for judicial settlement
vii. Discourage incentive to settle earlier
Negotiating away attorney’s fees as part of settlement: Fee Act
Evans v Jeff D (US 1986)
Legal aid society defends class action suit. State offers good settlement minus fees. Attorney
accepts, thinking court—which must approve class action suit—will turn settlement down.
Court accepts. Did it abuse its discretion? No, good settlement was adequate quid pro quo
for no fees.
Pro: gives lawyers another bargaining chip
Encourages lawyers to try civil rights cases
Con: coercive to lawyers who have ethical obligation to represent interests of clients
but who also need to be paid
Will discourage lawyers from working on civil rights cases
ALTERNATIVE DISPUTE RESOLUTION
1. Parties are the decision-makers, guided by the mediator.
2. Parties retain the right to reject the mediated result.
3. Usually chosen after a dispute arises.
4. Doesn’t replace the courts, these may be turned to if mediation doesn’t work.
5. Usually works best when aimed at altering relationships between parties with long-term
dealings with each other that have reached a critical stage.
6. Grillo argument that mediation coercive to women
1. Arbitrator is like a judge in his decision-making power.
2. Parties design a system of procedure to get a result they want:
i. Speed is often a goal
ii. Cheaper than a trial
iii. The arbitrator is often an expert in the field
iv. Parties control the substantive law that is considered.
3. Usually chosen before a dispute arises, and binding on the parties.
4. Replaces courts, since they have limited review
(usually confined to whether the procedures were followed and were fair)
6. Permits parties to come up with procedures suited to them.
7. Courts look at whether parties reached an agreement, what the mechanism of the
arbitration system was and whether it was fair, how voluntary it was to sign on. The
fairer and more voluntary, the less likely courts are to interfere.
Ferguson v. Writers Guild of America, West (Cal App 1991) (screenplay credit)
Ferguson wanted full credit for a screenplay and the story for Beverly Hills Cop II. He is
denied in the mandatory arbitration process established by the movie studios and the Writers
Guild. Seeks federal court intervention in the results of the arbitration. The court declines to
look at the merits, saying that this is something it doesn’t have the power to do. The court
addresses only whether the procedures were carried out correctly. Since Ferguson never
brought those concerns before the appropriate arbitration tribunal, he can’t bring them up
now. Courts can look at procedural issues because they are charged with enforcing
arbitration agreements like contracts.
SUMMARY JUDGMENT [RULE 56]
(a) For Claimant: after 20 days from commencement of the action or after service of
motion for s.j. by adverse party, can move for s.j. on all or any part of claim.
(b) For Defending Party: may at any time move for s.j.
(c) Motion and Proceedings Thereon: Motion served at least 10 days before hearing.
Until day before hearing, adverse parties may serve opposing affidavits. Judgment
sought rendered if none of pleadings or discovery on file show a genuine issue of any
material fact and that the movant is entitled it to as a matter of law. An interlocutory
s.j. may be rendered on the issue of liability alone even if there is a genuine issue re:
amount of damages.
Movant entitled to it as matter of law because nonmoving party has failed to make an adequate
showing on an essential element of its case
(d) Case not Fully Adjudicated on Motion: if motion doesn’t apply to whole case but only
a part, court should determine what facts are not controversial and which ones are
controverted and should judge on those that are established. At trial those are taken as
(e) Form of Affidavits; Further Testimony; Defense Required: Affidavits=personal
knowledge, facts admissible in evidence, accompanied by certified copies of
documents referred to. Adverse party to s.j. can’t rest on mere allegations or denials
to moving party’s pleadings, but has to respond by affidavit or otherwise (depositions,
interrogatories) with specific facts showing there is a genuine issue for trial. If they
don’t so respond, they might lose on the motion.
(f) When Affidavits are Unavailable: if adverse party can’t produce affidavits to show its
side, court may refuse application for s.j. or may issue continuance to permit gathering
Too early for s.j., court doesn’t have enough information to make decision
(g) Affidavits Made in Bad Faith: If court finds that affidavits were made in bad faith or
only to delay, court shall make party pay the other party’s expenses including
attorney’s fees incurred due to filing of affidavit and may hold party or attorney in
o Party moving for s.j. has burden of persuasion. Must make prima facie case that s.j. is
appropriate (i.e. no genuine issue of fact + entitled as matter of law). Movant does not
have to prove its case. It only has to show that opposing party has not proved its
case. Nonmoving party then has burden of proof to show that there is a genuine issue
of material fact in dispute.
o Judge does not weigh evidence or find facts. Judge only assesses whether a genuine issue
exists. Evidence of non-moving party will all be accepted as true, all doubts resolved against
moving party, all evidence construed in favor of non-movant, all reasonable inferences drawn
in favor of non-movant.
o If there is a dispute over the facts, a jury has to decide them, not a judge at s.j. S.j. can
show if there is agreement on the facts that there is disagreement on the law. If the
judge decides that the movant wins on the law, he allows s.j.
o S.j. can be used to resolve some party’s claims in a multi-party suit.
o S.j. motion can be proved using documents that might not be admissible during the
o S.J. does not stop clock, so if filed right away, still have to file an answer.
o Appeals: denial of s.j. is normally not appealable. Order granting s.j. appealable only if it is
the final order in the case. (Beware of collateral order doctrine appeals.) Standard is
always de novo.
Celotex Corp v Catrett (US 1986) (asbestos exposure) Y630
Establishes lower standard for granting summary judgment: a party can support a motion for
s.j. by showing that party that has the burden of proof on an essential fact cannot prove that
fact, and if the party did not produce such evidence. Celotex offers no proof of its claim of
innocence. Remand case and apply the standard.
before Celotex, even if you did not have burden of persuasion at trial, you
still had to affirmatively show your case to prevail at S.J.
Visser v Packers Engineering Assoc (7th Cir 1991) (age discrimination firing)
Will grant summary judgment. P must show that his firing was caused in substantial part by
his age. It is not enough to say that you’re old.
a. There was no evidence the firing was motivated by age. (Court of appeals threw out
hearsay affidavits because they did not present personal knowledge, and ignored
evidence that Visser’s replacement was younger, and that Visser’s pension was about to
b. Thus, SJ was appropriate.
The dissent points out that this could have been a mixed-motive firing case. If this is true,
then if P proves one of the reasons was age, D has to prove that P would have been fired
anyway. It seems odd that SJ was granted here.
Compare Rule 12(b)(6)/(c) to Rule 56
a. Both 12(b)(6) and SJ ask a court to get rid of case based on substantive law.
b. Both point to lack of support in the record for a party's claim.
i. SJ may be granted if movant can show there is no issue of fact presented by the
pleadings. Judge consults pleadings, affidavits, any discovery information,
admissions, and other evidence to determine whether a factual dispute exists
between the parties. In SJ motions, court issues a judgment on the merits
ii. Considering 12(b)(6) or 12(c) motions, judge only considers allegations
contained in non-moving party’s pleadings to determine whether averments of
law and fact, of true, are legally sufficient. (Will be converted to R56 motion if
outside evidence is considered.) If the allegations are subject to two
interpretations one that would and one that wouldn’t support a claim, court has
to choose one that would support. If plaintiff could amend the complaint in
such a way that would show a real cause of action, court will permit this. In
12(b)(6), court dismisses complaint without making a decision on the
c. Who can bring the motion?
1. SJ can be brought by either party
a. Easier for D to prevail, since all that is needed for SJ is to show that P can’t
prove one element of the claim.
b. P has to allege for each element of the claim, but might gain something by
taking one part of the case off the table.
2. 12(b)(6) can only be brought by defendant.
d. All or nothing?
1. SJ can resolve portions of the complaint
2. 12(b)(6) is all or nothing.
e. Issues of proof:
1. Affidavits and fruits of discovery must be attached to SJ motion, as additional
support for the motion.
2. 12(b)(6) stands alone, no additional information is attached because it only looks
at "the face" of the complaint.
1. SJ can be filed by P almost right away, any time after 20 days following the
commencement of litigation. Filed by D at any time.
2. 12(b)(6) can be filed as soon as D knows about the claim.
Used when the parties to a dispute can’t wait for it to be resolved before getting relief.
Problems: they must be granted or denied before case can be heard on the merits,
so based on incomplete information.
In some cases decisions about a preliminary injunction may for practical purposes end the case.
One response to the losses D may suffer under the preliminary injunction is to make Ps seeking
injunctive relief post a bond intended to cover such losses. However, often it is difficult to
calculate damages, which is why P is seeking injunctive relief in the first place.
Though appeals in federal courts generally only lie from final judgments of the DC, 28 USC
1291(a)(1) allows interlocutory appeals from orders ―granting, continuing, modifying, refusing, or
RULE 64: Seizure of Person or Property
At the beginning of and during an action, remedies for seizure of person or property
for satisfaction of a judgment are the ones available in the state in which the DC is
located except if there is 1) a governing federal statute, 2) the action is pursued
according to the Federal Rule of CP.
Provisional Remedies and Due Process
In some cases the procedural steps to obtain preliminary injunction may exacerbate problem and may
collide with need for due process.
Fuentes v Shevin (USSC 1972) Y369
Goods on credit repossessed under state writ of replevin where repossessor goes to clerk,
posts bond of twice the value, and gets writ instructing sheriff to repossess. Owner has no
notice and no recourse to a hearing on the merits of the replevy. Court holds that this is a
violation of due process because the state is acting in the private interest of an individual to
take away the property of another without public good at stake.
RULE 65: Injunctions
a) preliminary injunction
(1) Notice: no p.i. issued without notice to the adverse party
(2) Consolidation of hearing with trial on merits: before or after the hearing of
the application for the p.i., the court can order the trial to be moved up and
consolidated with the hearing. Even without consolidation, any evidence
presented at the hearing is entered into the trial record and need not be
b) Temporary restraining order; notice; hearing; duration:
a temporary restraining order may be granted without oral or written notice to the
adverse party or his attorney if 1) the applicant can show that irreparable harm will
result if court waits for hearing, 2) the applicant can show that efforts were made to
give notice or the reasons notice should not be required. TRO so issued to last 10 days
or length court dictates. After TRO is granted a hearing for a preliminary injunction is
scheduled as soon as possible and applicant has to proceed to application for p.i, and if
applicant doesn’t do so, the court will end the TRO. On two days or less notice to
applicant, adverse party can appear and move for TRO to be dissolved.
applicant has to give security in order to get TRO, court determines proper sum to
cover possible costs and damages to adverse party if they end up having been
d) Form and Scope of Injunction or Restraining Order:
every order shall give reasons for its issuance, specifically described in reasonable
detail the acts to be restrained. It is binding on parties to the action, their agents,
employees, servants, and attorneys and those in active consort with party.
Purpose of p.i. is to maintain status quo.
Opposing party must have notice before p.i. can be issued.
P.I. only applies during pendency of case.
TRO only granted if irreparable injury will occur if it is not granted [65(b)(1)]
Standard of Appeal: abuse of discretion if court applies the right legal test
De novo if court applies the wrong legal test
William Inglis Baking Co v ITT Continental Baking Co (9th Cir 1976) Y364
P seeks preliminary injunction on antitrust action filed against D for predatory pricing of
bread. DC denied based on test #1 criteria for finding for preliminary injunction. Appeals
court will only reverse on grounds of erroneous legal premise or abuse of discretion. No
abuse of discretion, but DC only used one possible test, so reverses and remands for test #2.
Test #1: Test #2
1) P will suffer irreparable injury if P has burden of showing either combination
injunctive relief is not granted of probable success and possibility of
2) p will probably prevail on the merits irreparable damage or that serious question
3) in balancing the equities, the defendants are raised and the balance of hardships tips
will not be harmed more than P is sharply in his favor. If harm to P will be
helped by the injunction sufficiently serious it is enough that P has fair
4) granting the injunction is in the public chance of succeeding on the merits.
Judgment and Jury
―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.‖
o Amendment just preserved as triable by jury cases brought at law (legal claim), not
equity (equitable claim).
o Courts devised historical test to determine in which cases 7th Amendment guaranteed
jury trial: if parties would have had right to trial by jury in 1791 in England, because
claim lay within the jurisdiction of the common law courts, they preserved it. If only a
court of equity would have heard the claim, there is no right to a jury.
o Most important in the determination is what the remedy sought is. Monetary
remedies were usually law cases.
o States are not bound by the 7th Amendment and are free to make their own decisions
about when to grant jury trials in civil cases.
o Administrative agencies seem to fall outside the 7th Amendment because they can have
their own adjudicative system without juries. Court’s position is that if the cases are
litigating public rights—where the US sues in its sovereign capacity to enforce public
rights created by statutes within the power of Congress to enact, the 7th Amendment
doesn’t prevent trial by judge. Administrative tribunals need expert judges
o Merging of law and equity makes it hard to decide when they are appropriate
o Equity: injunctive relief, multiple party claims, breach of fiduciary duty,
specific performance, fraud, trusts
o Law: money damages, basic contract & trespass
o When a case has both law and equity issues, the jury aspect is tried first and the judge
has to respect its decision in judging the equity aspect.
o Early common law: juries had 12 members, had to be unanimous, and their decisions
could only be challenged by ―attaint‖ in which a second jury or 24 members
considered charges that the original jury had been deliberately untruthful in its
What’s good about juries?
i. Represent a cross-section of the community.
ii. Might err on the side of justice.
What’s bad about juries?
i. Might not be able to understand the law or facts.
ii. Expensive – lost work, procedural expenses, feeding them.
iii. Hard to get 12 people to agree on anything.
Rule 38 Jury Trial of Right
a) Right preserved inviolate—7th amendment
b) Demand: any party may demand jury trial by serving the demand within 10 days of
service of last pleading or by filing demand according to 5(d)
Amendment of pleading does not restart clock on demand for jury trial on the original
Object to jury demand by filing motion to strike [Rule 12(f)]
c) Specification of Issues: party may specify issues to be tried in the demand. Default is
all triable issues. If demand is only to try some issues, any other party within 10 days
after service of the demand can demand other issues be tried.
A demand that doesn’t specify issues is deemed a demand for a jury trial on all issues that are
triable by jury.
d) Waiver: failure to serve and file demand is a waiver of trial by jury. A demand for
trial by jury can’t be withdrawn without consent of the parties.
e) Admiralty and Maritime=different
Rule 39 Trial by jury or by court
a) By Jury: trial demanded by jury is a ―jury action.‖ Trial shall be by jury unless
i. Parties by written or oral stipulation consent to trial by the court without
ii. Court decides that right to trial by jury does not exist under Constitution or
Parties can stipulate to a non-jury trial even if a timely jury demand had been filed.
b) By the Court: Issues for which no demand of trial by jury is made are tried by the
court. Court may order trial by jury if party failed to demand it when it was eligible to
c) Advisory Jury and Trial by Consent: On own initiative or by motion, court may use
advisory jury in any trial where issues are not triable of right by a jury, or, except
where Constitution or statute provide for trial without a jury, court may order a trial by
jury whose verdict has same effect as if trial by jury had been a matter of right.
Failure to request a jury might not bar one, court retains discretion under 39(c) with consent
of both parties, or if a right.
The right applies to both sides – if the case falls into jury trial, and P doesn’t want a jury, D
does, D can demand one.
If neither party wants a jury, and there is no right, the court could impanel an advisory jury.
Appealability: party believing judge has incorrectly denied jury right can seek writ of
Mandamus or take an appeal after final judgment. Review of jury right: de novo.
Chauffeurs, Teamsters & Helpers, Local No. 391 v. Terry (US 1990) Y670
Does employee seeking back pay for union’s alleged breach of duty or fair representation has
right to trial by jury. ―To determine whether a particular action will resolve legal right, we
examine both the nature of the issues involved and the remedy sought.‖
Marshall: contract claim is equity, breach of fiduciary duty claim is law, and money
damages is law, therefore jury right.
Brennan: just use remedy to decide
Stevens: use attorney malpractice analogy
Dissent: better match with trust analogy and this is enough to decide that equity is closer to
Rule 47 Selection of Jurors
a) Examination of jurors: court or parties or their attorneys may conduct examination
of prospective jurors. If court conducts inquiry, parties or their attorneys may make
b) Preemptory challenges: number allowed by §28 USC 1870
c) Excuse: court may for good cause excuse a juror from service during trial or
Rule 48 Number of jurors, participation in verdict
Not fewer than 6 nor more than 12 jurors seated. All jurors should participate in
verdict unless excused by the court pursuant to 47(c). Unless the parties otherwise
stipulate, the verdict shall be
2) no verdict taken from a jury reduced to fewer than 6 members
28 USC §§ 1861, 1862 & 1870
§ 1861: Declaration of Policy
policy of US that all litigants in Federal civil trials entitled to trial by jury have right to
grand and petit juries, selected at random from cross section of community in which
Also policy that all citizens have opportunity to be considered for service on grand and
petit juries and have an obligation to serve when summoned.
§ 1862: Discrimination Prohibited
No citizens excluded from grand or petit jury service on account of race, color,
religion, sex, national origin, or economic status.
§ 1870: Challenges
in civil cases, each party entitled to three preemptory challenges
―Several defendants or several plaintiffs may be considered as a single party for the
purposes of making challenges, or the court may allow additional preemptory
challenges and permit them to be exercised separately or jointly.‖
―All challenges for cause or favor, whether to the array or panel or to individual jurors,
shall be determined by the court.‖
A pool of prospective jurors is summoned, usually statutorily required to represent cross-
section of community
The members of the jury are selected from the pool: voir dire (challenge for cause)
Challenging for cause (by judge and/or parties)
Once relatives and employees of parties have been eliminated, judges are reluctant to
discharge for cause.
Usually a prospective juror who knows any of the parties, witnesses, or attorneys will be
If a party is a particular institution, persons employed by that kind of institution may be
Final step: questioning jurors to determine bias or prejudice
From lawyer’s perspective, two functions of voir dire:
To begin presenting their case subtly
To develop list of jurors they want to strike as one of their preemptory challenges
Peremptory challenges (by lawyers)
―Unlike a challenge for cause, a peremptory challenge allows lawyers to strike a juror for any
reason or no reason.‖
Each side gets three p.c. and more if alternate jurors are selected.
Race and gender seems to be only brake on p.c. These factors alone cannot be basis of p.c.
To challege p.c., have to show pattern of discrimination, then adverse party can give non-
Edmundson v. Leesville Concrete Co. (US 1991) (Third party standing) Y703
―Whether a private litigant in a civil case may use peremptory challenges to exclude jurors on
account of their race.‖ Holding: race-based p.c. violated equal protection rights of the
challenged jurors. District Court denied Ps request that p.c. of two black jurors be defended
on nonracial grounds. Court held this only applied to criminal cases cf Batson v. Kentucky
(US 1986). Jury rendered verdict for P.
―The Constitution’s protections of individual liberty and equal protection apply in general
only to action by the government.‖ In choosing a jury, the private litigants serve a
governmental function because the jury is a governmental body. ―Were it not for peremptory
challenges, there would be no question that the entire process of determining who will serve
on the jury constitutes state action.‖
O’Connor dissent: ―not everything that happens in a courtroom is state action‖ Believes p.c. is
a matter of private choice not state action.
Scalia dissent: Effect of decision will be to prevent D from using race-based strikes, which
might backfire because minority D can’t challenge an all-white jury, for instance. P.c.
sometimes used to assure rather than prevent a racially mixed jury.
Third party standing—way to address a rights violation
o 3rd party’s unwillingness or inability to prosecute issue
o party prosecuting has direct stake of some sort
o direction relationship between 3rd party and litigant such that litigant will move the issue in
the same direction as the rights holder
J.E.B. v. Alabama (child support case where gov’t gets all-female jury)
i. It is unconstitutional for the state, but not a private civil litigant, to exercise a peremptory
challenge based on gender.
ii. Generally, equal protection allows more room for unequal treatment on the basis of gender
than on race.
Did Batson work Court into a corner? Will any excuse be accepted to give a nonracial explanation for a p.c.?
1. revise or curtail Batson
2. expand voir dire to give better basis for challenges
3. abolish peremptory challenge because they only reflect the lawyer’s stereotypes and
because it works against diversity on the juries
4. eliminate peremptory challenges but expand reasons to challenge for cause
5. permit peremptory challenges but clarify the basis on which they would be permitted
through legislative specification and examples of acceptable reasons to challenge
Rule 49: Special Verdicts and Interrogatories
a) Special Verdicts: court can require juries to return verdicts on each factual issue
rather than a general verdict in favor of one party. Court gives instructions and has
discretion in how to submit issue to jury. If court fails to submit an issue, both parties
have to object before jury retires or the party not objecting loses right to a jury trial on
that question. Jury’s answers have to be consistent to be adopted. If inconsistent, the
judge can require reconsideration or may declare a mistrial. If jury fails to find
unanimously on an issue, judge can ask parties to accept a majority decision, can enter
judgment based on the other answers if dispositive, can require further deliberation by
jury, can order retrial on the points, or order a mistrial.
b) General Verdict Accompanied by Answer to Interrogatories: The court may
submit to the jury a general verdict and written interrogatories about specific factual
issues. If verdict is consistent with answers to interrogatories, judgment will be
entered. If the answers are consistent with each other but not with the judgment, the
court can order further deliberation, enter judgment based on the interrogatories,
declare a mistrial. If the answers are internally inconsistent and inconsistent with the
verdict the court can order further deliberation or declare a mistrial.
RULE 51: Instructions to Jury: Objection:
Judge must instruct jury on the law they are to apply. Parties can file written requests with
judge for jury instructions usually at the end of evidence. Judge has to rule on requests prior
to parties’ arguments to jury. Court can instruct jury before argument, after or both. In order
to preserve an issue for appeal, party has to object to instructions before jury retires to
deliberate. Parties can raise objections out of hearing of jury.
Two audiences for jury instructions
1. Jury itself, who may or may not need the law explained to them in simple words (patent law,
2. Appellate court, which could reverse the case if the instruction misstates the law in a material way.
RULE 50: Judgment as a Matter of Law in Jury Trials; Alternative Motion
for New Trial; Conditional Rulings
a) Judgment as a matter of law (applies only to jury trials):
1) The court can take the case away from the jury by entering a judgment if there
is not sufficient evidence to raise a genuine factual controversy.
2) Motion may be made any time before case is submitted to jury. Motion must
state the judgment sought and the law and facts supporting the judgment.
Practical reason: if raised before deliberation, there is time for opposing party to correct its evidence
production because Rule 50(a)(2) says movant has to state reasons supporting its motion.
Judges don’t like JML because if it is overturned on appeal, the case has to be tried over again. Prefer
JNOV because if that is overturned, the jury verdict is simply reinstated.
JML is appropriate in cases where no reasonable jury could possibly find for the other side.
3. Renewal of Motion for Judgment After Trial; Alternative Motion for New Trial:
if court does not grant motion for judgment as a matter of law made at the close of all
evidence, court is considered to have submitted matter to a jury, subject to court later
deciding the legal questions raised by the motion. Movant may renew request for
judgment as a matter of law by filing a motion within 10 days of entry of judgment or
may request a new trial or motion for Rule 59 new trial. In ruling on the renewed
motion, the court may:
i. If a verdict was returned
a. Allow judgment to stand
b. Order a new trial
c. Direct entry of judgment as a matter of law
ii. if no verdict was returned
a. order a new trial
b. direct entry of judgment as a matter of law
4. Granting Renewed Motion for Judgment as a Matter of Law; Conditional
Rulings; New Trial Motion:
i. If renewed JML motion is granted, court also conditionally rules on any
motion for new trial. Conditional ruling doesn’t affect finality of
judgment. If motion for new trial was conditionally granted and
judgment is reversed on appeal, new trial proceeds unless appeals court
orders otherwise. If motion for new trial conditionally denied, appellee
may assert error in appeal; if judgment reversed on appeal, court will
order subsequent proceedings.
ii. Motion for Rule 59 new trial filed within 10 days after entry of
5. Denial of Motion for Judgment as a Matter of Law: If the losing party appeals the
denial of a motion for judgment after trial, the prevailing party may on appeal assert
grounds for a new trial if appeals court reverses denial of the motion. If court
reverses, it may order entry of judgment, a new trial, or remand to trial court to
determine if new trial is warranted.
NOTE: If a party intends to ask for JNOV after the verdict if the verdict is not favorable, the
party must first move for a directed verdict prior to submission to the jury. If a motion for
directed verdict is not made, the right to ask for JNOV is waived [Rule 50(b)] (VII
Amendment reasoning, to get around deference to jury verdict).
Reid v. San Pedro RR (Utah 1911) Y 713 (Cow case)
Jury rules for P that cow went through hole in fence not gate. On appeal question is whether
there should have been a directed verdict for D (RR) because P can’t show by preponderance
of evidence that cow did not go through gate. This goes for D. P has burden of persuasion
how cow got out.
Pennsylvania RR v. Chamberlain (US 1933) Y 724
a. TC granted a directed verdict for on grounds that no reasonable jury could have found for
b. But did have a witness, while had many witnesses. However, the evidence provided
by ’s witness could be interpreted two ways – isn’t that the classic stuff of a jury decision?
The SC says no.
c. SC rejects the scintilla rule, which says if there’s any evidence at all on the opposing side,
must go forward.
Burden of persuasion v. Burden of production
Burden of persuasion: if it’s a tie, it goes against P
If case goes to the jury, are they adequately counseled?
Burden of production governs whether case gets to a jury at all—
judge decides whether there is enough to send the case to the jury.
Favorable evidence rule: only look at Ps evidence: is it enough to send case to
Qualified favorable evidence rule: look at all unimpeached, uncontradicted,
disinterested evidence (Federal standard)
All evidence rule: look at everything
Judgment as a matter of law [Rule 50] versus summary judgment [Rule 56]:
o Test whether, on the evidence before the court, a reasonable jury could return
a verdict in the nonmovant’s favor.
Witnesses have to be disinterested, unimpeached, uncontradicted
o Difference judgment as a matter of law and for summary judgment: timing.
Summary judgment motions filed before trial begins. Test whether there is
any need to start a trial at all.
o Judgment as a matter of law motions are made during trial, at the end of the
party’s presentation of evidence. Test whether there is any need for the trial
underway to reach a jury.
RULE 59: New Trials; Amendment of Judgments
a) Grounds; new trial may be granted on all or part of the issues
i. In jury trial, for any reason actions at law are granted retrial in US
ii. In bench trial, for any reason equity suits are granted retrial in US
After bench trial, court may reopen judgment, hear additional testimony, revise or add
findings of fact and conclusions of law, and direct entry of new judgment.
b) Time for Motion: filed within 10 days after entry of judgment
c) Time for Serving Affidavits: filed with the motion. Opposing party has 10 days after
service to file opposing affidavits, but for good cause may have up to 20 days. Court
may permit reply affidavits.
d) On Court’s Initiative; Notice; Specifying Grounds: court can order new trial within
10 days of entry of judgment for any reason it would grant motion of parties for new
trial. Court has to specify grounds for ordering a new trial in its order.
e) Motion to Alter or Amend Judgment: Any motion to alter or amend judgment has to
be made within 10 days after entry of judgment.
New trial gives judge check on jury system.
New trial v. JNOV
New trial if there is some conflict in the evidence or a question of credibility,
even if the evidence favors one side a lot.
JNOV if there is no possible way to decide the case against the evidence.
JML is perceived as question of law, therefore de novo.
New trial for new trial for error = de novo but with deference because often
deals with matters of law. For new trial for verdict against evidence= abuse of
discretion with a less deference since there is a preference against.
Reasons for a New Trial
i. Flawed Procedures
a. Granted when the process leading up to the verdict is severely flawed due
to judge error.
i. Lawyer makes impermissible statement to jury
ii. Evidence improperly admitted
iii. Incorrect jury instructions
iv. Juror misconduct
v. Serious errors only, harmless errors don’t count
b. Under Rule 59, the judge can do this at his own discretion, or if a party
ii. Flawed Verdicts: ―against the weight of the evidence,‖ ―clearly erroneous
result,‖ ―necessary to prevent injustice‖
1. Begins the contest again
2. Lower standard than JNOV, which makes the loser the winner of the case.
Lind v. Schenley Industries (salesman’s plush contract)
Jury finds that P did have a contract that was breached. D moves for JNOV and a new trial.
(We didn’t review the JNOV part of this case.) D says evidence was admitted improperly,
verdict was contrary to the law, and against the great weight of the evidence. Appellate court
looks only at ―against the great weight of the evidence‖ portion of the case.
What standard should be applied when trial court reviews a jury verdict? Miscarriage of
What standard do appellate courts apply to decide if the trial court made the right decision?
Abuse of discretion – TC gets a lot of deference, but closer scrutiny is applied when the new
trial was ordered on ―against the weight of the evidence.‖
Idea – protect the right to a jury trial, let juries weigh the evidence, that’s their job.
Conditional New Trials
New Trial Limited to Damages – judges can order new trials limited to
damages, but only if convinced that the errors that led the jury astray on
damages did not affect its calculation of liability.
Remittitur and Additur
a. Under some circumstances, the judge can reduce or increase the
amount of damages to a ―reasonable‖ amount.
b. Remittitur = threaten new trial unless P accepts less damages,
additur = threaten new trial unless D accepts increased damages.
c. When do you grant either? ―Shock the conscience‖ test or ―passion,
bias or prejudice test.‖
d. How much should the new damages be?
i. Highest amount a jury could award.
ii. Reasonable amount.
iii. Lowest reasonable amount.
e. SC has held additur is unconstitutional, remittitur is ok. Some state
courts permit both.
Appeals: if plaintiff doesn’t accept, review as abuse of discretion. If plaintiff accepts,
there is no appeal.
Appeals balance fairness and justice.
Appeals often apply procedural rules more technically than DCs
US system has presumption that DC decision is correct and AC do not
supervise trial courts.
On the one hand, all US jurisdictions allow at least one appeal, on the other
hand, there are limits on who and in what way trial court decisions can be
To get an appeal, party has to have preserved the issue at trial (Carson)
De novo: JML, SJ, motion to dismiss, JNOV, refusal to grant amendment
Abuse of discretion: New trial, granting amendment, undue hardship,
exceptional circumstances, grants of discovery limitations, sanctions
Who can appeal:
a) Trial court decisions may be appealed only by the losing party who has not
b) If a party wins one part but loses another, it can appeal the losing part only if
the relief sought under the losing part is greater or different.
Aetna Casualty & Surety Co. v. Cunningham (5th Cir 1955)
contractor fraud and question of losing reward in possible settlment
Carson Products v Califano (5th Cir 1979) secret ingredient
Were FDA’s procedures violation of due process. Right of appeal.
Massachusetts Mutual Life v. Ludwig (US 1976) double indemnity
CofA won’t let insurer argue the state law should have been Illinois because there was
no cross-appeal, but insurer couldn’t cross-appeal because it didn’t have adversity.
SC decides party doesn’t have to cross appeal to make another legal argument on the
same issue to support verdict below.
c) Doctrine of mootness: one may not appeal from a judgment when
circumstances have changed in such a way that relief is no longer possible
(e.g. the law has changed or parties have settled)
Who raised the issue below: waiver:
a) The party wanting to appeal must have pleaded the contentious issue at trial
and must have insisted on it in order to preserve the point
b) An appellant cannot raise an argument on appeal that was not made at trial
c) But, the appellee who wants to preserve an objection on which he lost at trial
in case the case is reversed, must cross-appeal. This issue had to have been
raised at trial
d) But appellee can raise new support of a matter that he had already argued in
trial without cross appealing
e) Plain error rule: more common in criminal trials, where judge makes error
that seriously affects fairness, integrity, or public reputation of the proceeding
Jurisdictions may try to limit appeals by imposing extra costs on appellants who lost below and
who lose again on appeal.
WHEN A DECISION MAY BE REVIEWED: FINALITY
a) Appeals only lie from final decisions of the district courts
b) This means in practice that appellate review is eliminated on most rulings
c) Final decision: one which ends the litigation on the merits and leaves nothing
for the court to do but execute the judgment.
28 USC 1292 (a)-(b)
a) Courts of appeals have jurisdiction over
i. interlocutory orders granting, etc. injunctions from federal district
courts + territories, except where there is direct appeal to USSC.
ii. Interlocutory orders appointing receivers or refusing to wind up
iii. Interlocutory decrees re: admiralty where appeals allowed
b) If district judge makes an order not usually appealable but which he thinks
involves a controlling question of law about which there is grounds for
substantial question the resolution of which would help advance the litigation,
he can put this into writing and it is submitted by petitioner to the appropriate
Court of Appeals within 10 days after the entry of the order. Provided: the
application for appeal doesn’t stay proceedings in the District Court unless the
DC judge or and AC judge so orders.
Liberty Mutual v Wetzel (US 1976) (Gender discrimination) Y764
P filed class action alleging violation of Title VII re: maternity leave.
DC granted partial summary judgment as to liability to P. Courts order denying to D
reconsideration of the judgment includes language indicating this was a final judgment.
But, P received no relief on the other claims they had made.
Lower courts believed that the judgment on liability became appealable immediately as a
final judgment. SC disagrees because only one claim adjudicated and says D had no
appeal. Therefore CofA had no authority to take appeal.
Under 28 USC 1292 (a)(1), partial summary judgment is an interlocutory judgment, but
not final where damages or other relief remains to be resolved.
Under 28 USC 1292 (a)(1), if court had granted injunctive relief but not ruled on other
requests for relief, the interlocutory order would have been appealable.
Defining the Moment of Judgment
Not always easy to figure out when final judgment has been entered.
To bring an appeal, appellant must file notice of appeal with clerk of the DC within 30 days
for typical appeal, within 60 days for appeal involving the US. Court of Appeals held not to
have jurisdiction to hear case any longer if the notice is filed late. (DC can extend the time to
file for good cause.)
Problem also in appealing too early before final judgment. FRAP 4(a)(4) allows filing notice
for appeal while common post-trial motions are still pending; appeal held in abeyance until all
the motions are disposed of.
EXCEPTIONS TO THE FINAL JUDGMENT RULE
Practical Finality & Collateral Order Doctrine
Lauro Lines v Chasser (US 1989) Y773
Is an interlocutory order of a USDC denying D’s motion to dismiss
immediately appealable under 28 USC 1291 as a collateral final order?
a) ―An order denying a motion to dismiss a civil action on the grounds
that a contractual forum-selection clause requires that such suit be
brought in another jurisdiction is not a decision on the merits that ends
b) An order is effectively unreviewable where it involves ―an asserted
right the legal and practical value of which would be destroyed if it
were not vindicated before trial.‖
c) Cohen exception—prejudgment orders are reviewable if they meet three
a. It must conclusively determine the disputed question
b. It must resolve an important issue completely separate from the merits
of the action
c. It must be effectively unreviewable on appeal from a final judgment
(e.g. claim for immunity from suit).
d) Cost of a possible erroneous trial is not enough to warrant non-final
Collateral Order Doctrine:
Issue is distinct from the merits
Issue has been conclusively determined by trial court
Issue is effectively unreviewable on appeal
Issue is important enough to merit appeal
28 USC 1292 (a) exception allowing appeals from interlocutory orders of DC
granting, continuing, modifying, refusing, or dissolving injunctions or refusing to
dissolve or modify injunctions. Such review is thought to be appropriate because of
the special nature of injunctions and their potential for harm. This does not apply to
28 USC 1292 (b) allows DC judges to certify appeals from nonfinal judgments where
controlling question of law is involved. Appellate court has to agree to accept the
Writ of Mandamus
Obtained in an original proceeding in the court that issues the write, orders a public
official to perform an act required by law.
Writ is available only in extraordinary cases amounting to a judicial usurpation of
Writ freely available when trial judge denies a jury trial or to prevent transfer of a
case out of the circuit.
TRIAL COURT APPELLATE COURT DECISION
1. JNOV = Yes, NT = Yes 1. JNOV = Yes, NT = No 1. Immediately
appealable. P brings
appeal. D prevails w/o
2. JNOV = Yes, NT = Yes 2. JNOV = Yes, NT = Yes need for trial
appealable. P brings
3. JNOV = No, NT = Yes 3. JNOV = No, NT = No appeal. D entitled to NT
but no need for one.
3. Not immediately
appealable. P must go
through second trial &
then appeal NT order if
loses. After this CoA
4. JNOV = No, NT = Yes 4. JNOV = Yes, NT = No orders entry of judgment
for P on original verdict.
4. Not immediately
appealable. If P loses must
go through second trial &
then appeal NT order. But
while Ct will reverse order
it will enter judgment, for
D’s JNOV should have
5. JNOV = Yes, NT = No 5. JNOV = No, NT = Yes been granted. If P wins, D
will appeal on such
grounds & will win. (W/ 2
juries finding for P, this is
appealable. Reverse entry
of judgment for D &
remand for new trial.
Scope of Review
Even if judgment is reviewable and even if decision is flawed, appeals court will not
necessarily disturb the judgment.
Appellate courts exercise three kinds of reivew:
a) Abuse of discretion (application of law to fact, was TC in range of ok
conduct? Judgment as a matter of law, weighting of the evidence,
amendment usually go here.)
b) Clearly erroneous (was judge’s fact finding ok?)
c) De novo (matter of law, no deference to TC, jury instructions,
admission of evidence [unless abuse of discretion])
Anderson v Bessemer City (US 1985) Y786 (Clearly erroneous)
Was P not hired because of her gender?
Procedure: a DC’s finding of fact can only be overturned if clearly erroneous. CofA found
clear error and overturned DC. SC finds that CofA misapplied clear error standard and
RULE: where there are two permissible views of the evidence, the factfinder’s choice between
them cannot be clearly erroneous.
Show deference to trial judge as finder of facts. CofA improperly conducted a de novo review
Rule 52(a): ―Findings of fact, whether based on oral or documentary evidence, shall not be
set aside unless clearly erroneous.‖
If trial court’s finding of fact is entitled to deference in review, its conclusions of law are not.
RULE 61: Harmless Error
Error in admission or exclusion of evidence, error or defect in any ruling or in
anything done or omitted by court or parties is NOT ground for granting a new trial or
for setting aside a verdict, or for vacating, modifying or disturbing a judgment or
order, unless refusal to take action denies substantial justice.
Court must always disregard errors which don’t affect substantial rights of the parties.
Once a court concludes that there was error, it has to decide if the error was harmful.
If not, it will not reverse.