Professional Documents
Culture Documents
I. Due Process
A. The Due Process Clauses (found in the Fifth Amendment and the Fourteenth Amendment) of the United
States Constitution
1. Deny effect to adjudications unless the parties to be bound were given prior notice and an
opportunity to participate.
2. Notice that satisfies due process may be found from proper service of process or other
recognized alternatives.
a) Process usually consists of a summons directing defendant to respond or appear in court on
penalty of default.
b) Service is the formal means by which process is delivered to a defendant.
II. Pleadings
A. Complaint
1. FRCP 8(a): claim for relief
a) FRCP 8(a)(1)
(i) “Short and plain statement of the grounds for the court’s jurisdiction.”
b) FRCP 8(a)(2)
(i) “Statement of the claim showing that the pleader is entitled to relief.”
c) FRCP 8(a)(3)
(i) “Demand for relief sought.”
Page 1 of 36
d) Bell Atlantic v. Twombly (pg. 45)
(i) P (Twombly representing class of consumers) alleges §1 Sherman Act conspiracy
among major telecom providers.
(ii) Overruled the substantive sufficiency test of Conley.
(iii) Rule: “Flexible plausibility standard”; “*N+eed at the pleading stage for allegations
plausibly suggesting (not merely consistent with) [illegal conduct] reflects the
threshold requirement of Rule 8(a) that the ‘plain statement’ posses enough heft
to ‘show that the pleader is entitled to relief.” – p. 49
Page 2 of 36
b) In federal actions, a plaintiff may serve process upon an individual, corporation or
association by:
(i) delivering the summons and complaint to the individual personally;
(ii) leaving the summons and complaint at the individual's dwelling house or usual
place of abode with a person of suitable age and discretion then residing therein;
(iii) delivering the summons and complaint to an agent authorized by appointment or
by law to receive service of process.
c) “In order for *P’s+ service to be effective, it must meet four distinct requirements:” *pg. 59+
(i) “Notice must be provided in the manner prescribed in a court rule of statute”;
(ii) “Notice must be provided in a way that comports with due process”;
(iii) “Jurisdiction over [D] must be asserted in a manner authorized by statute or court
rule”;
(iv) “Jurisdiction over *D+ must be authorized by the due process clause.”
b) FRCP 4(d)(2) provides incentives for a defendant to agree to waive formal service and
instead accept service by mail.
(i) Upon notice of the commencement of the action and a request for waiver of
service from the plaintiff, a defendant who so agrees is granted an extended time
within which to answer – 60 days instead of the 20 days granted when process is
formally served.
(ii) Failure to accept process by mail subjects the defendant to liability for costs of
service as well as attorney’s fees incurred in any motion to collect the costs of
service.
FRCP 4(d)(2)(B): the court must impose the costs of service on D who
refuses to waive service without good cause. – E&E, p. 18
(iii) FRCP 4(d)(3): if D waives service, D gets 60 days (as opposed to 20 days) to
respond
Page 3 of 36
(iii) Rule 4(f)(3) “permits service in a place not within any judicial district of the United
States ‘by… means not prohibited by international agreement as may be directed
by the court.’” – p. 62, cf. FRCP 4(f)(3)
(iv) Rule: “Rule 4(f)(3) is an equal means of effecting service of process under *FRCP+.”
– p. 63
“Service under Rule 4(f)(3) must be (1) directed by the court; and (2) not
prohibited by international agreement.”
“*C+ourt-directed service under Rule 4(f)(3) is as favored as service
available under Rule 4(f)(1) or Rule 4(f)(2).” – pg. 62
“[I]n cases of ‘urgency,’ Rule 4(f)(3) may allow the district court to order a
‘special method of service,’ even if other methods of service remain
incomplete or unattempted.” – pg. 62
(v) Rule: “Even if facially permitted by Rule 4(f)(3), a method of service of process
must also comport with constitutional notions of due process. To meet this
requirement, the method of service crafted by the district court must be
‘reasonably calculated, under all the circumstances, to apprise interested parties
of the pendency of the action and afford them an opportunity to present their
objections.” – p. 63
C. Defendant’s Response
1. “FRCP 12(a)-(b),-(e), and –(f) indicate two permissible options:” – p. 67
a) File an Answer (an answer is a pleading – see FRCP 7(a))
b) “File a Motion in lieu of an answer.” (a motion is not a pleading – see FRCP 7(b))
2. Answer
a) FRCP 8(b)(1) imposes two requirements on an answer:
(i) Short and plain statement of defenses to each claim [FRCP 8(b)(1)(A)]
(ii) Admit or deny each allegation by opposing party [FRCP 8(b)(1)(B)]
d) King Vision Pay Per View v. J.C. Dimitri’s Restaurant (pg. 71)
(i) Rule: Rule 8(b) “identifies only three alternatives as available for use in an answer
to the allegations of a complaint: to admit those allegations, to deny them or to
state a disclaimer.” – p. 72
(ii) It is unacceptable to demand “strict proof”; defective pleadings such as this will be
held to be admitted per FRCP 8(b)(1)(B).
Page 4 of 36
Rule: “The failure to plead an affirmative defense in the answer works a
forfeiture only if *P+ is harmed by *D’s+ delay in asserting it.” – p. 75
(ii) Defenses
Besides denials, an answer should contain “in short and plain terms” other
defenses to each claim in the complaint. [FRCP 8(b)]
FRCP 8(c) lists the affirmative defenses that must be pleaded in the
answer in order to raise them at trial (suppl pg. 70 – 1), including:
statute of limitations.
illegality.
fraud.
contributory negligence.
accord and satisfaction.
arbitration and award.
assumption of risk.
discharge in bankruptcy.
duress.
(ii) If the defendant brings a pre-answer FRCP 12 motion to dismiss the complaint but
does not prevail, he has 10 days after the court denies the motion in which to
serve the answer.
Page 5 of 36
b) Relief granted is dismissal of the complaint (or ≥1 claim) due to a perceived defect
(i) FRCP 12(b)(1): Lack of subject-matter jurisdiction
Defenses in FRCP 12(b)(1) can never be lost
(ii) It may be filed at any time in the proceedings, even at trial. [FRCP 12(h)(2)]
(iii) A Rule 12(b)(6) motion alleges that based on the facts alleged in the complaint,
there is no legal theory under which plaintiff can obtain relief.
If granted, the complaint is typically dismissed without prejudice so that
the plaintiff can amend it.
b) By signing a pleading or other judicial document, the attorney or party certifies that, “to the
best of his knowledge, information, and belief formed after reasonable inquiry”:
(i) Pleading is not being presented for any improper purpose,
such as to harass or to cause unnecessary delay or needless increase in the
cost of litigation
Page 6 of 36
(ii) Claims, defenses, and other legal contentions therein are warranted by existing
law or by a non-frivolous argument for the extension, modification, or reversal of
existing law or the establishment of new law
(iii) Allegations and other factual contentions have evidentiary support or, if
specifically so identified, are likely to have evidentiary support after a reasonable
opportunity for further investigation or discovery
(iv) Denials of factual contentions are warranted on the evidence or, if specifically so
identified, are reasonably based on a lack of information or belief.
E. Amendment of Pleadings
1. Amendment Without Permission of the Court
a) FRCP 15(a)(1) provides that a party may amend “once as a matter of course” (without
permission from the court or consent of other parties)
(i) before a responsive pleading is served, or
(ii) within 20 days of service if no responsive pleading is required.
(iii) Thus, the transactional relationship test permits relation back of amendments
that merely change the legal theory on which plaintiff seeks relief for the identical
transaction.
However, when the amendment presents a new claim that is factually
unrelated to the original claims, it operates, in effect, as a separate action,
which must independently satisfy the statute of limitations.
Page 7 of 36
(iii) New P filed motion for leave to file amended complaint
DC denied motion because there was an 8-month time lag
(iv) Rule #1: District Court may deny motion for leave to file an amended complaint for
reasons including the following (pp. 78-9):
undue delay
bad faith
dilatory [tending to cause delay] motive
undue prejudice to the opposing party by virtue of allowing the
amendment
futility of the amendment
(v) Rule #2: Delay, on its own, "is normally an insufficient reason to deny leave to
amend *the complaint+… Delay must be coupled with some other reason. Typically,
that reason… is prejudice to the non-moving party." [pg. 79]
F. Sanctions
1. FRCP 11 is violated by “signing, filing, submitting, or later advocating” a paper when the litigant
knows that it is no longer well-grounded,
a) thus imposing on litigants a continuing duty to correct or even withdraw papers in light of
post-filing events.
e) Evidentiary (or will likely have) support for facts (FRCP 11(b)(3)) – falsely pled facts
Page 8 of 36
3. Motion for Sanctions [FRCP 11(c)]
a) Generally a FRCP 11 motion is made by the pleader’s adversary
b) FRCP 11(c)(2) requires that motion be served under FRCP 5
c) FRCP 11(c)(2) grants a litigant a 21-day safe harbor period between service and filing of a
FRCP 11 motion to correct or withdraw the offending paper
5. Courts may impose FRCP 11 sanctions of their own initiative (“sua sponte”)
a) In Re Pennie & Edmonds LLP (pg. 91)
(i) Rule: When “a sua sponte Rule 11 sanction denies the opportunity to withdraw
the challenged document pursuant to the ‘safe harbor’ provision of [FRCP 11(c)(2)]
the appropriate standard is subjective bad faith.”
Standard of unreasonableness “is appropriate when the lawyer whose
submission is challenged by motion has the opportunity, afforded by the
‘safe harbor’ provision, to correct or withdraw the challenged submission.”
7. Court’s imposition of FRCP 11 sanctions is reviewable on appeal only for abuse of discretion. (pg.
97)
Page 9 of 36
III. Discovery
A. Discovery goals
1. Balance relevant facts with narrowing the issue
a) Does each side have enough to go to trial?
b) Setting up for summary judgment motion, which is based on whether you have enough
evidence to prove case
2. “The various instruments of discovery now serve (1) as a device… to narrow and clarify the basic
issues between the parties, and (2) as a device for ascertaining the facts, or information as to the
existence of whereabouts of facts, relative to those issues.” (Hickman v. Taylor – pg. 139)
B. Discoverable Material
1. FRCP 26(b) describes what may be discovered under the federal rules.
a) Rule 26 is the fountain of all discovery rules
b) FRCP 26(b) is the heart of Rule 26
2. Unless discovery has been otherwise limited by a protective order of the court, a party may
discover any matter that is:
a) relevant to a claim or defense;
b) reasonably calculated to lead to discovery of admissible evidence;
c) not privileged;
d) not constituting work product (A special showing is required for discovery of work product
prepared or acquired in anticipation of litigation or for trial.)
b) A party who without substantial justification fails to disclose material subject to required
disclosure is precluded under FRCP 37(c)(1) from introducing the material at trial.
Page 10 of 36
c) Excluded from FRCP 26(a)(1) are witnesses and documents that will either be used solely for
impeachment or will not be used at trial.
2. Pretrial Disclosures
a) In addition to the required disclosure of expert witness testimony, the parties must
exchange lists of trial witnesses and trial exhibits at least 30 days before trial.
3. Supplementation of Discovery
a) Under FRCP 26(c) and (e), a party must ensure the continued accuracy of the following types
of discovery throughout the lawsuit:
(i) automatic discovery required by FRCP 26(a);
(ii) disclosures made by expert witnesses that are to testify at trial; and
(iii) responses to an interrogatory, request for production, or request for admission.
b) If such discovery becomes incomplete or inaccurate, the party or his/her attorney must
provide additional or corrective information to the opponent, if not already known by the
opponent.
(i) A common sanction for breach of the duty to supplement is exclusion at trial of
evidence withheld by the discoveree.
(ii) This sanction is inappropriate, however, if a continuance and opportunity for mid-
trial discovery can enable the discoverer to overcome his/her surprise and prepare
effective cross-examination and rebuttal.
(ii) FRCP 26(b)(4) conditionally protects the non-testifying experts from discovery
absent a special showing.
b) Excluded from the Rule’s protection is any expert who acquires his information directly as
either a participant or observer about the transactions or occurrences underlying the
lawsuit.
(i) In such circumstances, the “expert” is an ordinary fact witness.
(ii) For example:
a police officer who responds to the accident scene,
a doctor who attends in the emergency room, or
a mechanic who services the car whose brakes failed.
6. Depositions
a) Procedure for Taking
Page 11 of 36
(i) To depose a party or non-party witness, FRCP 30 requires reasonable written
notice to the deponent and all parties to the action of the time and place of the
deposition and identity of the deponent.
A party must comply with the notice or else seek a protective order
because, by the initial service of process on him/her, he/she is already
under the personal jurisdiction of the court.
Thus, no subpoena is required to compel the attendance of a party-
deponent but may be used to compel an uncooperative non-party
deponent.
(ii) If documents to be used in conjunction with the deposition are sought, the
deposing party must attach to the deposition notice:
FRCP 34 request for production of documents for a party-deponent
Subpoena duces tecum for a non-party.
(iii) Under FRCP 30(b)(6), a party may name as a deponent in his notice and subpoena
a corporation, agency, partnership or other legal entity and describe the matters
on which examination is requested.
The entity must then designate one or more officers, directors, managing
agents or other persons with relevant knowledge to testify on its behalf.
7. Interrogatories
a) Interrogatories are written questions directed to a party, who must answer them in writing
and under oath, or object with particularity.
(i) Interrogatories target not just what is known by the discoveree, but also what is
reasonably obtainable by the dicoveree — “the collective knowledge” of the
recipient.
(ii) “A party is charged with knowledge of what his agents know, or what is in records
available to him, or even, for purposes of FRCP 33, what others have told him on
which he intends to rely in his suit.”
b) FRCP 33(a) limits the number of questions (taking into account discrete subparts of
questions) that can be posed to another party to 25, unless otherwise stipulated to by the
parties or ordered by the court.
b) FRCP 35(b) establishes a rule of reciprocity for the exchange of examination reports. The
examinee is entitled to the report of the examination upon request.
(i) In exchange, the examinee must produce any prior reports of examinations of the
same condition, and waives any privilege he/she has regarding the testimony of
anyone who has or will examine him/her concerning that condition.
D. Scope: Relevance
1. Basic scope of discovery [FRCP 26(b)(1)] (suppl pg. 141)
a) “Parties may obtain discovery regarding any nonprivileged matter that is relevant to any
party’s claim or defense.”
b) “For good cause… *discovery may include+ any matter relevant to the subject matter
involved in the action.”
c) “Relevant information need not be admissible at the trial.”
Page 12 of 36
2. Limitations on Discovery [FRCP 26(b)(2)] (suppl pg. 142)
a) Three fundamental limits on discovery:
(i) Relevance
“*E+vidence having any tendency to make the existence of any fact that is
of consequence to the determination of the action more probable or less
probable than it would be without the evidence.” (pg. 119)
(ii) Privilege
(iii) Proportionality [FRCP 26(b)(2)(C)]
By motion or on its own, court may limit discovery
Unreasonably cumulative or duplicative
Party has had ample opportunity to obtain information by discovery
Burden or expense (of proposed discovery) outweighs its likely benefit
c) Court “has the authority to confine discovery to the claims and defenses asserted in the
pleadings… parties *+ have no entitlement to discovery to develop new claims or defenses
that are not already identified in the pleadings.” (pg. 125)
Page 13 of 36
b) Zubulake v. UBS Warburg (pp. 128+, 135)
(i) “*T+he time and expense required to retrieve documents and electronic data
depends primarily on whether such information ‘is kept in an accessible or
inaccessible format.’” (pg. 129)
(iii) “*C+ourt can order the requesting party to pay all, or a portion, of the costs of
retrieving ESI.” (pg. 135)
Seven relevant factors related to cost sharing (pg. 135)
E. Scope: Privilege
1. Privileged Communications
a) The attorney-client, doctor-patient, priest-penitent, interspousal privilege and the privilege
against self-incrimination are commonly recognized privileges. In order to prove that a
communication is privileged, the party claiming privilege must show that such
communication:
(i) was made with an expectation of confidentiality;
(ii) is essential to a socially approved relationship or purpose; and
(iii) has not been waived by disclosure of the contents of the communications to
persons outside the relationship.
b) Privileges are narrowly construed in order to minimize their effect on liberal disclosure. The
proponent of a privilege has the burden of establishing its existence. [FRCP 26(b)(5)]
(ii) The current version of FRCP 26(b)(3) essentially codifies the case of Hickman v.
Taylor, in which the Supreme Court recognized a common law qualified immunity
of work product from discovery.
Page 14 of 36
(iii) Hickman v. Taylor (pg. 137)
Tug boat sank and several crew members died.
Attorney privately interviewed survivors and witnesses.
Rule #1: “*M+emoranda, statements, and mental impressions… fall outside
the scope of the attorney-client privilege and hence are not protected
from discovery on that basis.” (pp. 140-1)
“Work-product of the lawyer”: “interviews, statements, memoranda,
correspondence, briefs, mental impressions, personal beliefs, and
countless other tangible and intangible *work+.” (pg. 142)
Rule #2: [T]he general policy against invading the privacy of an attorney’s
course of preparation is so well recognized and so essential to an orderly
working of our system of legal procedure that a burden rests on the one
who would invade that privacy to establish adequate reasons to justify
production through a subpoena or court order.” (pp. 142-3)
d) Undue Hardship
(i) Hickman demonstrates that the “undue hardship” requirement may be satisfied
when important facts are exclusively in the control of the discoveree such that the
party seeking discovery has no other reasonable access to the information. For
example, undue hardship may exist where:
a witnesses died, moved beyond the reach of compulsory process, lost his
memory, deviated from his prior testimony or refused to cooperate; or
evidence that has physically disappeared or been altered is reflected in
work product, such as photographs of skid marks or conditions at the
scene of an accident.
Page 15 of 36
e) Ordinary Work Product
(i) FRCP 26(b)(3)(A)(ii) permits disclosure on a showing of substantial need and
undue hardship (pg. 147)
(ii) In addition, FRCP 26(g) imposes a certification requirement for discovery requests,
responses and objections paralleling that of FRCP 11.
By signing such a request or response, the attorney certifies that the
discovery request is not predicated on an improper motive such as
harassment or delay, and is not disproportionate to the needs of the case.
2. Protective Orders
a) A person served with a discovery request may seek a protective order against such request if
it may cause “annoyance, embarrassment, oppression, or undue burden or expense.”
(i) Discovery may be found unduly burdensome based on the location or condition of
the discoveree, and may be unduly invasive when it probes matter that, though
unprivileged, is confidential.
b) In order to cure a burdensome discovery request without the court having to wholly deny it,
FRCP 26(c) authorizes protective orders that accomplish the following goals:
(i) Restrict the time, place, method or scope of discovery;
(ii) Require that discovery be sealed and only opened by court order;
(iii) Limit the disclosure of trade secrets and other business information.
Page 16 of 36
3. Sanctions for Discovery Abuses
a) Under FRCP 37, no party may move for an order compelling discovery or for sanctions
without certifying that it has tried in good faith to resolve the discovery dispute with other
parties without court action.
(i) FRCP 37(b) authorizes sanctions for a failure to comply with an order to compel
discovery or equivalent discovery order.
(ii) Rules 26(g), 37(c) and 37(d), however, permit the imposition of sanctions without
an intervening discovery order in some circumstances.
b) The discoverer may move under FRCP 37(a) for an order compelling discovery either when
the discoveree objects to discovery or responds evasively or incompletely.
(i) If the motion to compel is granted, FRCP 37(a)(4) requires the court to award the
movant attorney’s fees and other expenses incurred in making the motion unless it
finds that opposition to the motion was “substantially justified.”
(ii) If the motion is denied, the discoveree has a similar opportunity for
reimbursement and the court may issue a protective order in his favor.
c) If a party fails to disclose information required to be disclosed by FRCP 26(a), FRCP 37(c)
precludes that party from using the information as evidence at trial.
(i) Furthermore, FRCP 26(g) requires sanctions against an attorney or party for
violation of its certification requirement.
(ii) Because most violations of the discovery rules can also be construed as violations
of the certification requirement, FRCP 26(g) may encourage federal courts to
impose discovery sanctions more often without an intervening order compelling
discovery.
d) FRCP 37(b) sets forth a range of sanctions by authorizing the court to:
(i) award discovery expenses against the violator.
(ii) deem established facts that were the object of discovery.
(iii) exclude evidence.
(iv) strike all or part of the pleadings.
(v) hold the violator of a discovery order (other than one for physical or mental exam)
in contempt.
(vi) dismiss the action.
(vii) render judgment by default.
Page 17 of 36
(ii) Major sanctions
Major sanctions are not available for failure to comply with a discovery
request
After Rule 37(a) motion is successful and court orders production of
requested discovery materials, if party does not comply they are:
Disobeying an order of the court
Subject to major sanctions
National Hockey League v. Metro Hockey Club (pg. 156)
P failed to obey an order to provide or permit discovery
District court dismissed the case
“*E+xtreme sanction of dismissal was appropriate in this case by
reason of *P’s+ ‘flagrant bad faith’ and their counsel’s ‘callous
disregard’ of their responsibilities.
b) FRCP 16(b) requires the judge to enter a scheduling order within 90 days after the
appearance of a defendant or 120 days after the complaint is served, setting time limits for
joinder and amendment, motion practice, and completion of discovery, and (optionally)
setting the dates for mandatory discovery, pretrial conferences, and trial, subject to
modification for good cause.
c) Usually the parties will be asked to submit pretrial briefs in which parties state the
undisputed facts, identify the disputed facts, summarize legal contentions, and list trial
witnesses and exhibits. The parties may also be required to make authenticity objections to
proposed trial exhibits and be invited to raise other evidentiary objections that could be
ruled upon before trial.
Page 18 of 36
2. FRCP 16(f) also authorizes the court to punish disobedience of the pretrial order by:
a) striking claims or defenses.
b) dismissing the action.
c) entering a default judgment.
d) holding the disobedient party in contempt.
Page 19 of 36
2. The Seventh Amendment does not confer the right to a jury trial in purely equitable actions.
a) Thus, in determining whether a constitutional right to jury trial exists for a statutory cause of
action in which Congress has not expressly created a right to jury trial, federal courts have
been required to determine whether the issue at hand most closely resembles something
adjudicated at law or equity in 1791.
(i) The “legal” nature of a claim is to be determined by considering (Two-Prong Test):
the origins of the claim prior to the merger of law and equity
the remedy sought
(Third prong: practical abilities and limitations of juries)
Ross v. Bernhard (pg. 241)
(iii) Where a case presents both legal and equitable claims which have issues in
common,
the trial court must first try the legal claim(s) so as to preserve the right to
a jury trial on such issues. [Beacon Theatres, Inc. v. Westover, pg. 248+]
(iv) A party cannot seek to bar a jury trial by couching essentially legal claims to appear
as if they exist at equity.
Page 20 of 36
C. Jury Selection
1. Voir dire is the process by which a jury is selected, and is
a) intended to expose biases or interests of venire members (potential jurors) that would
disqualify them for cause.
2. Usually parties are given unlimited challenges for cause [FRCP 47(c)] and a limited number of
peremptory challenges [FRCP 47(b)]
a) Peremptory challenge permits counsel to keep persons off the jury without offering a reason
b) SCOTUS has ruled that civil litigants may not use their peremptory challenges to exclude
jurors on account of the jurors’ race or gender
(i) Edmonson v. Leesville Concrete Co. (pg. 251)
Leesville used two of its peremptory challenges to remove black persons
from the prospective jury
Race-based challenge violates the equal protection rights of challenged
jurors
4. States differ as to the minimum number of jurors required in state civil trials.
2. FRCP 51 treats the manner in which jury instructions are to be prepared and given in federal
court.
3. FRCP 51 is typical in providing that a party may challenge instructions on appeal only if he objects
before the jury retires to deliberate, “stating distinctly the matter objected to and the grounds of
the objection.”
a) Appellate courts decide the correctness of instructions de novo, but view the instructions as
a whole, including any curative instructions, and reverse only for prejudicial error.
E. Verdicts
1. Verdicts in federal civil trials must be unanimous. [FRCP 48] Verdicts may be of three types:
a) general verdict – a verdict for one side or another without explanation.
b) special verdict – the jury answers a series of short-answer fact questions without rendering
a specific verdict; the trial judge then announces a verdict based on the answers in the
special verdict. [FRCP 49(a)]
c) general verdict accompanied by answers to written interrogatories. [FRCP 49(b)]
2. Both alternatives to the general verdict are within the discretion of the trial judge.
Page 21 of 36
d) Can be used as a sword or a shield
(i) Aimed at opposing party to get their case dismissed
(ii) Moving party seeking judgment on their behalf without trial
b) “’When the moving party has carried its burden under Rule 56(c), its opponent must do
more than simply show that there is some metaphysical doubt as to the material facts…
When opposing parties tell two different stories, one of which is blatantly contradicted by
the record so that no reasonable jury could believe it, a court should not adopt that version
of the facts for purposes of ruling on a motion for summary judgment.” (pg. 269)
B. Burden of Production
1. A motion for summary judgment may be supported by the pleadings, discovery documents,
affidavits, and any other materials that present facts that would be admissible at trial.
a) Hearsay, speculation, conclusions of law, conclusory ultimate facts, and promises that the
necessary evidence will be offered at trial therefore cannot support a motion for summary
judgment, even when presented by an otherwise proper affidavit.
Page 22 of 36
2. If movant meets his burden of production that there exists no triable issue of fact,
a) In order to avoid a finding of summary judgment, the opposing party “may not rest upon the
mere allegations or denials” of his pleading but must set forth specific facts showing that
there is a genuine issue for trial. [FRCP 56(e)]
b) Alternatively, the opposing party may present an affidavit under Rule 56(f) stating why he
cannot state specific facts in opposition to summary judgment at the present time, without
adequate time for discovery.
(i) The reasonableness of plaintiff’s request for time is a crucial factor in the exercise
of the court’s discretion.
3. If the movant for summary judgment fails to meet his burden of production, the opposing party
need not do anything as entry of summary judgment is not proper in the absence of a prima facie
showing that there is no genuine dispute of material fact.
2. While summary judgments address the merits, they may not be immediately appealable.
a) Summary judgment as to liability alone is interlocutory in character and identified as such
under FRCP 56(c).
b) Similarly, summary judgment with respect to fewer than all the claims or parties is also not
considered final for purposes of federal appeal, although a court may direct entry of a final
judgment in such cases in conformity with FRCP 54(b).
2. In a bench trial, the equivalent to the Rule 50(a) motion is the FRCP 52(a) motion for judgment
on partial findings.
Page 23 of 36
a) Reeves v. Sanderson Plumbing Products Co. (pg. 273)
(i) Employer discrimination lawsuit
(ii) DC twice denied Rule 50 motions by D
(iii) “*T+he court must draw all reasonable inferences in favor of the nonmoving party,
and it may not make credibility determinations or weigh the evidence… *A+lthough
the court should review the record as a whole, it must disregard all evidence in
favor of the nonmoving party that the jury is not required to believe. That is, the
court should give credence to the evidence favoring the nonmovant as well as that
‘evidence supporting the moving party that is uncontradicted and unimpeached, at
least to the extent that that evidence comes from disinterested witnesses.” (pg.
279)
b) Court must draw all reasonable inferences in favor of the nonmoving party;
2. Standard mirrors that of summary judgment: no legally sufficient evidentiary basis for a
reasonable jury to find for the party opposing the motion
3. The party seeking judgment as a matter of law must make motion before the jury retires,
specifying “the judgment sought and the law and facts on which the moving party is entitled to
judgment.” *FRCP 50(a)(2)]
a) If the court does not grant the motion prior to the jury returning a verdict, and the verdict is
unfavorable to the movant, he must renew such motion no later than 10 days after the
verdict.
2. Grounds are identical as those for granting Judgment as a Matter of Law under FRCP 50(a).
3. Cannot be granted unless the moving party made a motion for judgment as a matter of law
[FRCP 50(a)] during the trial itself.
4. Can assert only those grounds that were previously asserted in the Rule 50(a) motion.
5. In bench trial, the equivalent to the Rule 50(b) motion is the FRCP 52(b) motion to amend the
judgment.
b) FRCP 59(a) and many state rules authorize a new trial in appropriate cases.
d) Party’s failure to move for a new trial precludes appellate review of an “against the weight of
the evidence” argument, but not an argument premised on other new trial grounds.
Page 24 of 36
2. Unitherm v. Swift-Eckrich (pg. 287)
a) Respondent filed a Rule 50(a) motion before the verdict
b) Respondent did not file a Rule 50(b) motion after the verdict
c) Respondent did not request a new trial under Rule 59
d) Respondent filed an appeal
e) “*S+ince respondent failed to renew its preverdict motion as specified in Rule 50(b), there
was no basis for review of respondent’s insufficiency of the evidence challenge in the Court
of Appeals.” (pg. 291)
5. In considering a motion for a new trial, the court does not merely test the verdict for sufficiency,
as is the case for motions for judgment as a matter of law, but actually weighs the evidence.
a) Thus, there may be sufficient legal grounds for the verdict but the verdict may still be set
aside for a new trial.
6. In a bench trial, the equivalent to the Rule 59(a)(1)(A) motion for a new trial is the FRCP
59(a)(1)(B) motion to amend the judgment.
a) But the new trial may be limited to hearing new evidence on a point or points that the court
believes must be corrected or amplified
Page 25 of 36
B. At any time after the judgment a party may seek correction of “clerical mistakes in judgments, orders or
other parts of the record.” [FRCP 60(a)]
C. No later than one year from judgment, a party may seek relief under FRCP 60(b) based on:
1. Mistake, inadvertence, surprise, or excusable neglect.
a) Excusable neglect factors (pg. 302):
(i) Whether a non-defaulting party will be prejudiced
(ii) Whether the defaulting party has a meritorious defense
(iii) Whether culpable conduct of the defaulting party led to the default
b) Ackerman v. US (pg. 297)
(i) P allegedly defrauded US by swearing oath of allegiance but sympathizing with
Nazi regime
(ii) P’s citizenship was revoked (judgment of denaturalization)
(iii) P waited 3 – 4 years to file their Rule 60 motion
(iv) P alleged that failure to appeal was excusable
(v) “A motion for relief because of excusable neglect as provided in Rule 60(b)(1)
must, by the rule’s terms be made not more than one year after the judgment was
entered.”
(vi) In interpreting the excusable neglect component of Rule 60(b)(1), a number of
courts examine three factors (pg. 302):
Whether a non-defaulting party will be prejudiced
Whether the defaulting party has a meritorious defense
Whether culpable conduct of the defaulting party led to the default
2. Newly discovered evidence which by due diligence could not have been discovered in time to
move for a new trial under FRCP 59(b) (see pg. 302).
a) Evidence has been discovered since trial
b) Evidence could not by due diligence have been discovered earlier by the movant
c) Evidence is not merely cumulative or impeaching
d) Evidence is of such a nature that it would probably change the result were a new trial to be
granted.
D. FRCP 60(b) furthermore provides for relief upon motion brought within a reasonable time where:
1. The judgment is void;
a) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it
is based has been reversed or otherwise vacated, or it is no longer equitable that the
judgment should have prospective application; or
2. Any other reason justifying relief from the operation of the judgment.
a) “*R+esidual catchall provision allows a court to relieve a party from a final judgment where
such relief is appropriate to accomplish justice, but the reasons for that relief are not
encompassed by the other provisions of the rule…
b) “*courts+ should grant Rule 60(b)(6) motions ‘only where exceptional circumstances justify
extraordinary relief exist.’” (pg. 303)
XI. Appeals
A. In General
1. In most jurisdictions, an entry of final judgment is a jurisdictional prerequisite to appeal (the
“Final Judgment Rule”).
2. Under the final judgment rule, parties can only appeal upon final judgment on all claims in the
action.
a) Only losing parties may appeal
Page 26 of 36
b) A party who is dissatisfied with a pretrial or trial ruling usually may not take an interlocutory
appeal before final judgment, but must wait until a dispositive pretrial ruling or the end of
trial and post-trial proceedings
(i) “Motion for leave to file interlocutory appeal”
3. FRCP 58 provides for clear determination of entry of a judgment by requiring judgments to be set
forth on a separate document, although the appellate court must still determine whether such
judgment is final.
B. Standard of Review
1. Matter of Law → de novo
2. Matter of fact
a) Judicial decision → clearly erroneous (deferential; some cts. use abuse of discretion
standard)
b) Jury decision → reasonable jury (deferential)
c) Reversal is warranted only if the reviewing court is left with the definite and firm conviction
that a mistake has been made (pg. 314)
3. Matter of procedure → abuse of discretion standard
a) Deferential
b) Some degree of disinclination to disturb the ruling below
c) To reverse, court must conclude that the ruling is outside a generally considerable range of
discretion appropriately left to the trial judge
XII. Preclusion
Transaction
Claim
Issue
b) Referred to as:
(i) “Merger” when P won (claim merged into judgment)
(ii) “Bar when P lost
Page 27 of 36
2. Prerequisites to claim preclusion
a) Identical Parties
(i) Claim preclusion only applies between same parties
Actual parties in the prior adjudication
Persons or entities not named in the original case may be subject to claim
preclusion if they are sufficiently related to original parties (i.e., if they are
in privity to the litigants).
Non-parties to a litigation who are in privity to a party are deemed to have
had their interests represented in the prior action, or are deemed to have
no greater interest than did the losing party in that action.
(ii) “Strangers” – those neither parties to, nor in privity with, nor otherwise involved
with the prior adjudication can neither bind nor be bound by claim preclusion.
b) Identical Claims
(i) Claim preclusion is founded on an expanded concept of a “claim” which
encompasses all of the alternative legal theories and the full scope of damages
or other remedies generated by the facts of the original controversy.
It is irrelevant whether the claim was actually asserted in the prior case, as
long as it could have been.
(ii) Many jurisdictions apply the transaction or occurrence test set forth in
Restatement (2d) Judgments § 24 (pg. 323) in order to determine if a claim should
be precluded.
Section 24 defines the claim precluded by the judgment to include “all
rights of the plaintiff to remedies against the defendant with respect to all
or any part of the transaction, or series of connected transactions, out of
which the [original] action arose.”
(iii) If a party had a right to join two claims for relief arising from the same transaction
in the first suit, it is reasonable to require her to do so, instead of bringing two
suits that will rehash the same facts
(iii) Judgments on the merits for defendants have the same preclusive effect.
However, defendants may obtain judgments in their favor on grounds
other than the merits,
e.g., lack of personal or subject matter jurisdiction, or improper
venue.
Orders dismissing such cases are not judgments on the merits and
thus do not have claim-preclusive effect. [FRCP 41(b)]
Page 28 of 36
d) Rush v. City of Maple Heights (pg. 325)
(i) P was injured and motorcycle damaged allegedly resulting from D city’s negligent
street maintenance
(ii) P won first action for property damage for motorcycle
(iii) P filed second action for personal injuries
(iv) “*W+here a person suffers both personal injuries and property damage as a result
of the same wrongful act, only a single cause of action arises, the different injuries
occasioned thereby being separate items of damage from such act.”
(v) Rule = no claim-splitting [Restatement (2d) Judgments § 24(1)]
B. Issue Preclusion (Collateral Estoppel) [Restatement (2d) Judgments §17(3), 27] (pg. 331)
1. The doctrine of issue preclusion (or collateral estoppel) provides that a final judgment precludes
relitigation of the same issue of fact or law if:
a) The issue was actually litigated,
b) Determined by a valid and final judgment,
c) Determination was essential to the judgment.
2. Actually Litigated
a) Issue preclusion bars relitigation of only those matters that were actually litigated and
determined in the prior case.
b) Issues determined in a prior action by motion, such as for dismissal based on failure to state
a claim, for judgment on the pleadings, summary judgment, or directed verdict may in fact
be raised and tried in future litigation. [Restatement (Second) of Judgments § 27]
b) When alternative issue determinations support the judgment, preclusion is also inapplicable
since the judgment is not conclusive with respect to either issue standing alone.
(i) [See Restatement (Second) of Judgments § 27, Comment (i)]
(ii) However, the Restatement regards such determinations as preclusive if both
grounds are affirmed on appeal.
4. Fairness
a) Issue preclusion in a given case may be deemed unfair where:
(i) it was not sufficiently foreseeable at the time of the initial action that the issue
would arise in the context of a subsequent action; or
(ii) the party sought to be precluded did not have an adequate opportunity or
incentive to obtain a full and fair adjudication in the initial action. [Restatement
(Second) of Judgments § 28(5)]
Page 29 of 36
b) Allows a new party to invoke issue preclusion against a party who litigated and lost on an
issue in a prior action
(i) Defensive nonmutual issue preclusion
Suit 1: P1 D1
Suit 2: P1 D2
D2 seeks to prevent P from asserting issue that P has previously litigated
and lost against another D
“Defensive use of *issue preclusion+ precludes a *P+ from relitigating
identical issues by merely ‘switching adversaries.’ Thus defensive collateral
estoppels gives a [P] a strong incentive to join all potential [Ds] in the first
action if possible.” (pg. 338)
Suit 1: P1 D1
Suit 2: P2 D1
B. Stare Decisis
1. Law of precedent
2. Applied to new parties
Page 30 of 36
3. A lower court may not disregard (although it may distinguish) a legal holding of a court directly
above it, but a court may reconsider and overrule its own precendent
XIV. Joinder
A. Claim Joinder [FRCP 18]
1. FRCP 8(d)(2) presupposes you can bring multiple claims in a lawsuit
a) Provides that D can assert as many defenses as he or she has to P’s claims
2. FRCP 18 allows a party who has made a claim against another to join further claims with it
against the same opponent.
a) It authorizes claim joinder without limitation, regardless of whether the claim to be joined
is related to the pre-existing claims or not, as long as the joined claim satisfies subject
matter jurisdiction requirements.
b) Permissive, not mandatory
(i) Plaintiffs are free to assert fewer than all claims
(ii) When claims are unrelated, P can bring omitted claims in a separate lawsuit
(iii) When the claims are transactionally related, the law of preclusion might prevent P
from asserting additional claims in a second case after the first case goes to
judgment
b) A claim that arises out of the same transaction or occurrence as the subject matter of the
opposing party’s claim must be asserted in the present action or is forever barred
c) Most federal courts interpret “arises out of the transaction or occurrence that is the subject
matter of the opposing party’s claim” as being logically related to the underlying claim. (See
pg. 373 of Alexander v. Fulton County)
Page 31 of 36
d) Compulsory counterclaims fall within the court’s supplemental jurisdiction and thus require
no showing of independent grounds for subject matter jurisdiction.
D. Joinder of Parties
1. Permissive Joinder [FRCP 20]
a) FRCP 20 permits joinder of plaintiffs or defendants provided that the claims joined to bring
multiple parties into the lawsuit:
(i) arise from the same transaction or occurrence; and
(ii) have a common question of law or fact.
(iii) 4-factor inquiry of Painter v. Harvey often applied
b) Additional defendants to be joined must meet the requirements of personal and subject
matter jurisdiction, as supplemental jurisdiction does not apply to such claims.
(i) Thus, in a diversity action, joinder of additional defendants must not destroy
complete diversity among the parties.
(ii) The jurisdictional amount must also be met by each defendant individually; such
claims cannot be aggregated.
Page 32 of 36
(ii) A necessary party must be joined if feasible.
(iii) If joinder is not feasible, a court must determine, pursuant to FRCP 19(b), whether
the person’s non-involvement will be so detrimental that the case cannot proceed
without the person.
(iv) Such parties are deemed “indispensable.”
b) Necessary Parties
(i) FRCP 19(a) sets forth the circumstances under which a party is deemed
“necessary”:
if complete relief cannot be accorded among existing parties in his
absence;
the absent party’s ability to protect his interest relating to the subject of
the action and, if so, whether it may be impaired or impeded without his
involvement in the action;
disposition of the action in his absence may subject existing parties to a
“substantial risk of incurring double, multiple, or otherwise inconsistent
rulings.”
(ii) So long as joinder is feasible, a necessary party must be joined in order for the
lawsuit to continue.
If one sought to be joined as a plaintiff does not join voluntarily, under
limited circumstances, the court may compel such party to join, making the
party an “involuntary plaintiff.”
c) Feasibility of Joinder
(i) However necessary a person might be to the lawsuit, he will not be joined unless it
is feasible to do so.
Joinder is feasible only if he is subject to the personal jurisdiction of the
court, and his joinder “will not deprive the court of jurisdiction over the
subject matter of the action.”
FRCP 19(a) furthermore excuses an involuntarily joined party from the case
if he “objects to venue and *his] joinder . . . would render the venue of the
action improper.”
d) Indispensable Parties
(i) When it is not feasible to join a party, the court may determine the party
indispensable to the action, pursuant to FRCP 19(b).
(ii) If the party is deemed indispensable, the action will be dismissed.
(iii) The four factors that determine whether a party is indispensable [FRCP 19(b)]
are:
Prejudice: the extent to which a judgment rendered in the party’s absence
might be prejudicial to the party or existing parties;
Shaping of relief: the extent to which the prejudice can be lessened or
avoided by protective provisions in the judgment, by the shaping of relief,
or other measures;
Whether a judgment rendered in the party’s absence will be adequate; and
Adequate remedy: whether the plaintiff will have an adequate remedy if
the action is dismissed for nonjoinder
Page 33 of 36
e) Makah Indian Tribe v. Verity (pg. 388)
(i) Makah (P) challenges gov’t ruling on fishing quota and regulatory process
(ii) Court determined that it could not grant relief without other 23 tribes absent from
the suit
Those tribes had sovereign immunity and could not be joined unless they
waived that immunity
(iii) Court determined the other tribes were necessary and indispensible to the suit
2. In this capacity, defendant becomes a third-party plaintiff, the added party becomes a third-party
defendant.
3. The defendant, as a third-party plaintiff, may also join other claims against the third-party
defendant.
4. Impleader furthermore makes available to the third-party defendant all the options available to
defendants, e.g.,
a) counterclaims
b) cross-claims
c) impleader of yet additional parties that could be fully or partially responsible for any liability
the third-party defendant is found to have to the original defendant
Page 34 of 36
B. Requirements for Impleader
1. Under FRCP 14, a claim sought to be impleaded must:
a) Have arisen out of the same transaction or occurrence as the original plaintiff’s claim; and
b) Be contingent or derivative; i.e., a nonparty who is or may be liable to defending party for all
or part of the claim [FRCP 14(a)]
b) Contribution – The right of contribution typically arises among joint tortfeasors, two or more
persons who are jointly or severally liable in tort for the same injury.
c) Subrogation – Subrogation is the succession of one person to the rights of another. Often a
subrogee is an insurer that has compensated an insured for an injury resulting from the
negligence of a third-party.
Page 35 of 36
2. Grutter v. Bollinger (pg. 395)
a) Two cases (consolidated) in which proposed defendant-intervenors were denied
intervention
b) Actions brought against U of M contesting use of applicant’s race as a factor in determining
admission
c) Holding: Proposed intervenors only required to show that representation might be
inadequate
2. The claim or defense must have a question of law or fact in common with the pending action.
Page 36 of 36