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CIVIL PROCEDURE II PROFESSOR CAMERON SPRING 2010 Pleading Purposes at Common Law Gives notice Stating your claims

laims or defenses. Give notice to the of what they're being charged of. State/Discover facts Tell the story of what happened, use the right form Focus dispute What claims are good, valid, etc. Resolve claims Resolved by judgment on the pleadings (Resolved on paper) Set traps for unwary Modern Purposes Under FRCP Give notice Stating your claim & defenses, also you must state some facts State some facts? Rules for Attacking Pleadings Failure to state claim Rule 12(b)(6) (Rule 8(a)(2)) Strike 12(f) This is attacking a part of the claim. More definitive statement 12(e) If what you have said isn't clear, you are asking for you to clarify your statements. Judgment on pleadings 12(c) You admit all the material facts are true, & you allow the judge to rule on the facts provided. Types of Pleadings Complaint Satisfy Rule 8(a)(2) Satisfy Rule 9 Jurisdiction (Alleged jurisdiction) Personal Jurisdiction, or Subject Matter Jurisdiction Short/plain statement of claim (Three statements of the claim) Cognizable (Dioguardi) Put a label on it, identify what the claim is. Is there a recognized law or issue at h&? Contains all element(s) (Garca) The must allege the elements are true. (Does this make a chair? Did you draw all the legs?) Enough facts (Twombley/Iqbal) There has to be enough factual matter from which it can be plausibly inferred that you have a case. The plausibility st&ard must be applied, are there enough facts where it can be inferred that you have a case? Dem& for judgment (for which pleader deems himself entitled to) Prayer for relief: Money damages Injunctive or other equitable relief Declaratory judgment as to the parties rights & liabilities Can be specific or vague: Even if dem& for relief is inappropriate, must grant relief even if such relief was not in pleadings.

Answer Use It or Lose It Filing Rule 12(a)(1): Within 20 days after being served. Use It or Lose It Rule 8: D must... (1) Admit or deny each allegation: Preferred answer on paragraph by paragraph basis Failure to respond or deny is an admission. General denial (not acceptable-counts as an admission) Failure to respond particularly is an admission Rule 8(d). Qualified denial: Denial of a particular portion of a particular allegation. Denial of knowledge or information as to truth of Ps claim full denial. (2) Raise affirmative defense: May be conclusory Test: Any new matter or issue not embraced by the complaint should be pleaded as an affirmative defense. Enumerate affirmative defenses [8(c)]: assumption of risk, contributory negligence, bankruptcy, duress, estoppel, failure of consideration, fraud, etc. Rationale: D must plead new matters to put P on guard. Reasons D raises affirmative defenses: Admits the allegations of the complaint but suggests some other reason why there is no right of recovery OR Concern allegations outside the Ps prima facia case that the D cannot raise by a simple denial of the answer. Failure to raise affirmative defense = waiver. Additional affirmative defenses not enumerated in 8(c): (limits on what one can recover for non-economic damages) To determine whether a defense not listed in Rule 8(c) must be raised affirmatively courts look to federal statutes in federal question cases & to state practice in diversity cases Determining whether a defense is within 8(c): analysis of relationship between the defense & the cause of action asserted by the P requires determination of: a. Whether the matter at issue fairly may be said to constitute a necessary or extrinsic element in the Ps cause of action & b. Which party, if either, has better access to relevant evidence & Policy considerations: should the matter be indulged or disfavored? (3) Assert any counter-claim(s): (That are applicable) Failure to assert certain type of counterclaims under 13(a) is a waiver of the right to bring them later on.

Reply Like answer For counter-claim only Failure to Plead Special Matters (Rule 9) Fraud or mistake 9(b): Only slightly more notice is required. Special damages 9(g): Anything that is not the inevitable result of an injury. Will not be inferred just state that you want them relating to a particular claim. Must also ask for punitive damages. (if damages are a natural result then they dont have to be specifically stated in the complaint) Special damages = damages for injuries that are not a normal & expected consequence of it. Normal damages damages that can be expected from the type of incident (necessary & normal result)- dont need to be specifically plead Purpose: so that D has notice that they might have to prepare for something that would not ordinarily been seen in a claim of that type Other matters

Amendment (Rule 15) Simple Pleading Problem Rule 15(a): Use if there is no SOL problem. Before responsive pleading is served & action is placed on trial calendar : Party can amend its complaint Once as of right (20 day rule) [within 20 days of original pleading] (can be filed without anyones permission) After 20 days a party can amend: By consent of adversary OR: Always granted if other side says its OK By leave of court (to be freely given when justice so requires): About substance of complaint, not form: should be denied only if it would cause actual prejudice to the other party Answer to amended pleading: must be done either within 10 days of service of amendment or time remaining for response to the original pleading. Relation Back Rule 15(c): After SOL has expired, pleader may add a claim or defense when it arises out of same transaction or occurrence (Gibbs Test) set forth in timely filed pleading. Threshold: There must have been something timely filed to relate back to. Same transaction or occurrence: (common nucleus of operative facts, same case or controversy) st&ard: NO: if underlying facts needed to sustain the new pleading are materially different. Relation Back to Change Party Name: After SOL has expired, & wrong party named, pleader may add/correct name when: (NEED ALL 3) 1. Within 120 days of filing & 2. Party sought to be named has received such notice that s/he would not be prejudiced, & Prejudiced D would have trouble defending the case & there would be serious harm to his rights (ex. undue delay, bad faith, dilatory motive, repeated failure to cure deficiencies) Ex. P who keeps amending complaint when witness is about to die may be prejudice Ds rights 3. P knew or should have known that but for mistaken identity, proper party would have been named: If it is a mistake about D, relation back rule applies, but if you dont know who the D is to begin with, then the rule does not apply (have to actually name a Deven if its mistaken) Can have an unknown D if its reasonable & P has made an effort to find out their identities (through no fault of the P you dont know who they are)

Pleading Sanctions (Rule 11) Signature certifies, based on reasonable inquiry under circumstances, that : (Must have all four) 1. Pleading not for improper purpose: Cant sue just to harass or cause unnecessary delay or needless increase in the cost of litigation. 2. Legal contentions are warranted: by existing law (statute or case that supports) or good faith argument for the extension, modification or reversal of existing law Ex. not warranted if really clear that statue of limitations has expired Warranted: claim for negligence, breach of contract, etc. Can be a legal theory that is not recognized: but must be some authority that would suggest that the legal theory was warranted even if it wasnt the law (ex.

dissent, law review articles) [good faith modification on existing law] When something becomes clearly settled: can dispute it a short while later (ex. 1 year) & try to change it 3. Fact contentions have evidentiary support: (or likely to have evidentiary support after discovery): Pleadings dont have to have any evidence but if you start alleging facts, must be able to back it up if you are put to your proof at the pleading stage Lawyer must make reasonable inquiry before signing the pleading: sliding scale on application of factual contentions Depends on surrounding circumstances whats reasonable will vary. Does not mean that you have to prove youre right, only that you have some evidence. 4. Denials of factual contentions are similarly warranted or reasonably based on lack of information: can deny based on lack of knowledge Sanction -if deny when really do have knowledge

Joinder of Claims & Parties (Rules 13, 14, 18, 19, 20, 22, 24) Two sets of rules that control Joinder (1) jurisdiction & they a/o/o the same t/o Tells us who are bound in the litigation, you cannot be subject to litigation you must be a party in order for you to be bound. Three Joinder Moves: By (Rule 18, 20) 1. Add-a-claim Rule 18: Single P suing single D can bring as many claims as he wants. Allowed to add as many claims against same D do not have to be transactionally related. Ex. P sues the D on one claim, then wants to add another claim Permissive: (can file separate litigation later on if you dont do it now) 2. Add-a-party (permissive joinder) Rule 20: New party attached (not changing the claims) Must be transactionally related (Gibbs test ) & There must be a question of law or fact common to all Ds. At least 1 P & more than 1 D Claim asserted by P against additional D By (Rule 13, 14, 19) Cross-claim: 13(g) To follow the same rules as in Rule 20 meaning that the cross claim has to a/o/o the t/o as the original claim brought about i. must be transactionally related to the case ii. Permissive (not compulsory) so can be brought at any time iii. Usually claims of contribution or indemnity Impleader: 14(a) It is bringing in another (the test is that the third party is or may be liable in this case) Ex parte is when the other side, the applicant is attempting to implead another responsible party. i. Whenever 3rd party is or may be liable to existing D, can bring in 3 rd party D ii. Does not have to be transactionally related iii. Almost always a claim for contribution or indemnity iv. 3rd party D is only being sued by the person bringing him in. Compulsory joinder: (Use it or lose it) Counter claim 13(a)-(b) 1. Compulsory 13(a) D must bring it now or lose it a. Compulsory counter-claim: A counter-claim that must be cognizable usually b/c it relates to the opposing party's claim & a/o/o the same t/o.

b. Compulsory counterclaims automatically satisfy supplemental jurisdiction c. Compulsory if: a/o/o the same t/o that is the subject matter of the opposing party's claim (Use but for test) i. Arguments that it is compulsory: Hayward-Robinson 2 separate jobs & Ks but involved the same parties, insurance, same type of work & payment into single account. Test: The same t/o test a. Same case or controversy b. Common nucleus of operative facts c. Logically connected 2. Permissive 13(b) Any claim not compulsory is permissive Use it or lose it does not apply. Not Compulsory: Any claim that is not compulsory is then considered permissive, & it can be asserted now, or you can assert it later. Necessary/indispensable 19(a)-(b) [This brings about a 12(b)7 motion to dismiss for failure to join an indispensable party] If Missing Party Is: Necessary But 19(a) a. Incomplete relief to parties present: If in his absence, complete relief cannot be afforded to the parties OR b. Absent person has: OR Interest (in the outcome of the case) & May be impaired/impeded (so situated result would be pain in the ass) c. Absence might cause D/M/I obligations. If persons absence will expose the parties to double, multiple or otherwise inconsistent obligations. Additional Notes If yes, this party must be joined to the case. But If they cannot be joined then the question arises whether they are necessary or indispensable. Indispensable Joinder Unfeasible 19(b) [Party is so vital that if their joinder is impossible, the whole action must be dropped Not possible to proceed case w/o.] Factors to Balance: i. Prejudice to Parties: extent of prejudice to absentee or parties already in litigation [more than impairing or impeding party] Prejudice to Absentee? What if P/D won how would it affect absentee? Prejudice something that irreparably compromises absentees rights Argument for no prejudice if someone is missing from a lawsuit they cannot be bound to a judgment Prejudice to Existing Parties? To parties present if they dont have the missing person there (how will it hurt them) must actually compromise their rights. Potential Arguments: If you need the person in the case, to get to the person with money then that person is indispensable ii. Adequacy of judgment w/o absentee 1. Should protect absent party who had no opportunity to plead & prove his interest. 2. Will it be enough to satisfy the parties?

Win or lose: could the court get a remedy that would be satisfactory to everyone present (If YES deny motion for 12(b) (7) 3. A judgment can only bind the parties joined at the case. iii. Adequacy of Ps remedy (if action dismissed) 1. What if 12(b)(7) & case is dismissed what other options does P have a. Can he file any other lawsuits? b. Is there any other forum in which the case could be litigated? c. Could P join any other suits that are already in progress? 2. If P has other options then missing person is not indispensable iv. Lessen Prejudice by protections: Alternative measures the court might use to lessen any prejudice. 1. Can prejudice be avoided by including protecting provisions in the judgment? (even if the person is indispensable) 2. Even if all other factors point in favor of indispensability if the court could find any way to delay the finding of indispensability (then do not dismiss) By 3rd party (Rule 22, 24) Intervention: Rule 24 i. Permissive 24(b): Must meet SMJ requirements independently. 1. Court lets you in, even if not required at judges discretion. (Sometimes their participation is solicited because of expertise they may lend to the case) ii. Mandatory 24(a): 1. Conferred by Statute: If there is a statute that says you have a right to join, then the judge has to let you join OR 2. If Requirements are met (must meet all 3) a. Must have an interest in the outcome (litigation) & Monetary, or Political, or Social, or Ideological (environment) b. Interest impaired or impeded in absence of intervener (is the intervention necessary) & Not guarantee Just could or might (ex. If not in case, good chance no one else will bring perspective) c. There is no adequate representative protecting their interests a. No representative at all b. Conflict of interests Public statements Other holdings c. Collusion between representative & adverse parties Interpleader: Rule 22 Interpleader OK if Separate Claims Would Expose /Claimant to Double/Multiple/Inconsistent Liability Statutory: Lowered Requirements for Jurisdiction 1. Minimal Diversity Dont have to have complete diversity of citizenship As long as any 2 claimants are from different states: enough to satisfy

complete diversity If all claimants are from the same state: then consider if the Stakeholder is also a claimant- then can look at Stakeholders citizenship to create minimal diversity 2. Amount in Controversy Amount in controversy greater or equal to $500 lowered amount in controversy as long as its worth $500 or more 3. Nation Wide Service of Process (Notice) Deals with Problem of Personal Jurisdiction P (Stakeholder) should be able to issue process out of a federal district court & have it served on any claimant anywhere in the U.S. boundaries are the United States Personal jurisdiction- as long as they are anywhere in the U.S. territory i. Venue: Where one or more of the claimants reside. ii. Injunctive Relief: What happens when there is litigation or potential litigation scattered around the country? May obtain injunction stopping litigation that may be going on regarding the stake & bring it all to one litigationuntil interpleader claim is resolved, no other claim can go forward.

Wrap-Up: Two Essential Questions 1. Is claim sought to be joined transactionally related? 2. Is joinder permissive or compulsory?

Class Action (Rule 23) Litigation by Representation Absent parties will be bound by fate of representative party, yet not be joined to litigation At least 2 lawsuits underway: By named : May pursue his own litigation even if it is unlikely that absent parties may not pursue (may not know they are part of the class, may not be worth it) On behalf of absent parties: Cant proceed without class certification Absent class members will still share in the judgment, whether its a win or a lose Absent class members dont have much say of how the case gets prosecuted or settlement Certification Requirements (Need All) 1. Identifiability How does P define class? Must be a description of the class that would allow a reasonable person to identify class members. Usually in quotation marks on final exam Cant have vague & ambiguous terms with reference to a class (Must be specific) Must be able to determine who is in the class & who is not Look whether the descrip. of the class is one that would allow us to identify the individuals. Ex. passengers on flight 23 to Penn. (even if dont know their identity at the time, but can determine who they are) - (usually described in terms of space & time) Words describing feelings or opinions make the class less identifiable (passed over; rejected) 2. Membership Does P meet the definition? Named rep must be a member of that class. 3. Numerosity 1. Test: number of potential class members has to be so numerous that the joinder of their individual claims would be impracticable (is there too many for joinder

purposes?) 2. General Rule: fewer then 20 is never enough to get to a class; 40 or more is always enough. 3. In between 20-40: Look at: Geographical dispersion of class members: if they are scattered all over, then it would be difficult to get them all in one place for the suit Can everyone be identified?: If not, then class action is more likely, b/c can still give them the money later when they are identified The size of their individual claims Joinder is generally impracticable if the claims are small, because people are not likely to become involved in litigation if only a small amount of money is at take. Joinder is usually feasible if each individuals stake is relatively large. 4. Commonality All the parties must be formed as a result of a common cause. There has to be one question of law or fact that is common to the whole class. Damages are not a commonality among s. Damages & causation are usually non-common questions What kind of relief is sought? (not a good question because inevitably people will want different things) 5. Typicality Requires that the claims or defenses of the representative party be typical to those of the class (How typical is Rep of the class-in regard to events & damages) When each class members claim arises from the same course of events, & each class member makes similar legal arguments to provide the Ds liability. Look at: how similar are the claims Compare P to the rest of class (same or different?) Ex. Toxic Waste: P- cancer; Other Class Member- headaches (not typical) 6. Adequacy Representative party will fairly & adequately protect the interests of the class. If named representative not adequate, absent parties cant be bound. Fairly & Adequately Protect the Interests of the Class Adequacy Of class counsel Are the lawyers representing the class adequate? Have they done any other class action litigation? Years in practice? Experience in this type of claim? Any suspensions or actions for poor representation? 3. Adequacy Of class representative Adequate Commitment? Adequate commitment to see the job through (devoted to the litigation) Do they have money for the litigation? Because there are upfront costs that have to be paid by the class representatives Notice to absent known class members has to be given by class representative Political or Ideological Commitment No Conflict of Interest if there is a conflict of interest with one or more class members then they will not do a good job The more similarly situated the Ps are the less likely there will be a conflict of interest Cannot have a class member who is opposed to the goal of the litigation (even 1)all class members should have the same goal for litigation Remedy When there are conflicts among sub-classes: solution: split the sub-classes into separate classes (if there have different commonalities certify different reps for each sub-class)

Different Class Designations Rule 23(b) category (1) Anti-prejudice class Avoids the prejudice of multiple lawsuits by having a class. (ex. bankruptcy) Applies when there are too many people to join in an interpleader class Test: What would happen in individual litigation in absence of class action treatment? Would anyone be subject to double/multiple or inconsistent damages? IF YES then class action treatment is appropriate. Late filers will also be able to share pro rata. May not opt out would give rise to inconsistent adjudication the Rule is designed to prevent. No need to give notice until it is settled (2) Equitable class Most seeked; Not personal injuries. Typically seeking equitable relief (injunction, specific relief, centered on some policy) Homogeneous class everyone injured in the same way. Seeking relief like injunction, not $. Moving for damages & equitable relief does not preclude B2 class. TEST: Not what type of relief but whether D acted or failed to act in a manner generally applicable to each member of the entire class? Preferred class for Ps: because it does not require notice & do not permit absent class members to opt-out May not opt out doesnt make sense as relief applies to whole class. Used mainly for civil rights cases, alleging discrimination as a whole. (3) Damage class Requires: Relief sought is typically money often there are non-common questions & claims most popular type granted usually personal injuries. Class members are similar in that they satisfied the other 6 requirements but there are differences in their claims 1. Predominance: Common questions of law or fact must predominate over noncommon questions: usually means that there would be lots of common questions or the 1 common question is so important dominates the litigation 2. Superiority: Class action method is superior to other available methods of joinder for fair & efficient adjudication of the controversy: Test: 4 factors to consider for superiority: 1. Interest of members of the class in individually controlling the prosecution or defense of separate actions. 2. Extent & nature of any litigation concerning the controversy already commenced by or against members of the class 3. Desirability or undesirability of concentrating the litigation of claims in one forum Complexity: If really complex, courts would rather have fewer claimants sometimes not in peoples interest Individual claims too small: Dont really have to do any work why create a forum that may just go away if you leave it alone. 4. Difficulties likely to be encountered in the management of a class action (ex. too many people) More difficult to manage, more court is justified in not certifying class. Least Preferred by Ps: cannot proceed until the P has given notice to all the class members (& P has to pay for it) Preferred by D: because raises the cost of litigation by opponent & they lose

strength in numbers Ex. 33 passengers, 1 named rep., bus crash: all suing for negligence BUT different injuries so different damages (some can be more severe then others) To determine what the class members are entitled to, there might need to be 33 separate trials to determine what damages they should get can still be a class action but as a damages class.

Notice: Requirements P must give notice to all class members & 1. Ps have to spend money to give notice 2. Best notice practicable under the circumstances Absent class members can opt out risk by giving the notice, losing strength in the numbers (because people can opt out) Recent Reforms Diversity Jurisdiction Expansion: 1332(d) It used to be that there was no diversity jurisdiction claim within class action claims. The supreme has recently bent the diversity rule & they modified it as follows 1332(d) Provides SMJ if: Amount in controversy > $5M Minimal diversity among claimants an assessment of how many of the claimants are from same states But May Be Declined if: > 1/3 but < 2/3 are non-diverse & 6 factors favor 'no' Must Be Declined If: > 2/3 are non-diverse > 1 ' is citizen of state where originally filed Various exceptions apply Removal: 1453 1453 OKs Removal: Even if is forum citizen By 1 w/o consent of others Grant/denial of rem& now immediately appealable Coupon Settlements: 1711-1715 1711-1715 Provides For: Regulation of attorney fees Protection against class member losses No geographic discrimination Official notifications Discovery (Rules 26-37) Purposes: Ascertain facts Eliminate undisputed facts The court wants the two parties to establish what are undisputed facts. Preserve testimony This is a means to get the witnesses testimony (deposition) in order to preserve testimony. Encourage settlement Helps to better assess what is happening in regard to the case, & to establish whether or not it makes sense to settle. Basic Rules (1) You must produce to the other side any information/materials which is relevant to

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the subject matter (now changed to: claim or defense) (2) However, only the information/materials that are not privileged Caveat: If inadmissible (under evidence), must be R/C/T/L (reasonably calculated to lead to) to lead to the discovery of admissible evidence. New rules for e-discovery 1. Relevant to subject matter Includes info that: Establishes basis of pleading contention (claim or defense) Reveals who has such info Impeaches party witness (Limited to party witnesses not byst&ers) Doesnt include info that: Reveals tactics or strategy Tactics in regard to the court case Discloses insurance policy limits During the liability phase, amount of insurance is irrelevant. Only during award phase. Impeaches non-party witnesses If you serve a discovery request on one of the witnesses, it is not relevant. Impeachment for a witness (showing their testimony is not reliable) 2. Not privileged Information sought must not be privileged: Material is privileged if it would be protected against disclosure at trial. Caveat: If inadmissible, can still seek out as long as it is R/C/T/L to lead to admissible evidence. Obligations Each party must: 1. Self-disclose: Disclose info important to case identify themselves & exchange relevant information with the other party 2. Investigate: to do your own review of the facts (actually look for information that responds to discovery or their self-disclosure obligations) Must look at own records & files to come up with info that may be necessary 3. Cooperate: parties must cooperate with one another (as far as exchanging relevant information) Make nice ex. early meeting with the other side to discuss issues. 4. Comply: 26(a)(1) states that you are supposed to fork over names & addresses of individuals who have info allows you to make list of who you want to depose. Fork over copies/documents. Rule 26(b)(1) 26(b): amended to limit discovery requests to material relevant to the claim or defense of any party Methods 1. Deposition Rule 30: Allows an attorney for a party to question any person under oath regarding the subject matter of the case. Can be follow-up & cross-examination. Most effect/important discovery device: Under oath, asked by lawyers, answered by witness/party. Can be directed at any person not confined to the parties in the action. Notice is given to other side for a deposition & have to show up (part of obligation to comply) Interactive: can modify questions; rephrase; do it in person Purpose: Allows a party to impeach a witness with the deposition at trial or replaces

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a witness who cant testify. Notice: No subpoena for party Subpoena for non-party optional must protect against undue burden or risk. If used, must be within 100 miles of place where person deposed resides or is employed. 2. Interrogatory Rule 33(a): Def: Written questions by lawyers to be answered within a specific time. Propounded by one party to another : Not given or answered under oath : Written by lawyer answered by an attorney: Not interactive Improper question: Responding party may say so instead of answering can seek a court order requiring an answer Duty to investigate knowledge; D should furnish whatever info it has, regardless of when or from whom D acquired it. BUT, interrogatories that require a party to make extensive investigations, research, compilations or evaluations of data for the adversary are usually improper. Business records: No need to answer but must designate with some specificity what documents contain the information BUT if it is too much burden to other to access the document that contains the info, then D must answer May not be used to obtain info from a nonparty have to be deposed. Party cannot refuse to answer interrogatories merely because an attorney, rather than a party, knows the facts. 3. Request for production Rule 34: Production of documents or tangible things. To produce info in the form of adocuments; forms; or allowing to come & inspect in person; witness statements; certain memos that are relevant; police report; business records Must describe each with reasonable particularity & specify a reasonable time, place & manner of making the inspectionParty produces those that are in his possession, custody or control. If request to nonparty must serve a subpoena 4. Request for admissions Rule 36: Statements asking D to admit the truth of certain matters of fact or application of law to fact or the genuineness of any documents sought or evidence that may be used at trial. Purpose: Not really to obtain information but to narrow the disputed issues & remove the necessity of proving at trial the fact whose admission is sought. If the party who receives a request does nothing matter is deemed admitted. If party makes admission: matter is conclusively established at trial, unless the court grants a motion to withdraw or amend the admission. 5. Medical examination Rule 35: Must have court orderPerformed by a doctorCan be physical or mental exam. (not governed by basic rules): Requires: 1. Of a Party: Person to be examined must be a party to the litigation: (Employee may be subject if they are under the control even if they are not named themselves) Does not apply to non-parties if you are joined in the same litigation (in some way) then you are a party waiver theory when a P brings a lawsuit for a medical injury cannot complain about invasion of privacy & cannot refuse a medical examination 2. Is In Controversy: Medical condition (mental or physical) must be in controversy did persons medical condition affect the litigation? look for: evidence that they are arguing about it in the litigation (in the complaint/answer/ brief/ pleadings) If medical condition is irrelevant, (ex. not eye sight but sidewalk was wet), then no medical exam dont look at whether you were the one that put your medical condition in controversy as long as someone puts it into controversy 3. Good Cause Shown: Must have good cause (similar to protective order): showing that there is some reason to believe that this person has some medical

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condition that is in controversy Facts to look for: 1. Declarations about persons medical condition 2. Deposition testimony I think hes crazyhas to have head examined.reason: because saw acting psycho look for facts in the problem that show that someone has a reason 3. When there is some sort of other discovery look at whether can be used Need for information outweighs the potential burden, hardship or annoyance the person would be subjected to need facts, reasons! Ex. If we know P was to wear protective glasses, & he wasnt wearing his glasses then it is a good cause. 6. Subpoena: Request for things or for person to show up at a certain place & time (do not apply basic rule) Pertains to non-parties Dem& with a sanction behind it Can subpoena witnesses to do one of the 1st 4 (no longer optional becomes m&atory) Not a court order: but comes from the court (need pre-stamped seal of the court clerk) If dont show up risk contempt of court Protective Order If resisting party: (to get protective order need all 3) 1. Certifies good faith conference: With other side to see if they can resolve the dispute without court action (with the other side to resolve issues) 2. Shows good cause for limiting discovery: Must show some real facts to show you need this. Might impair ability to get honest recommendations. 3. Demonstrates disclosure would cause A/E/O/U (burden or expense) A/E/O/U = Annoyance; Embarrassment; Oppression; Undue Hardship what would happen if they had to comply the consequences of not getting the protective order Then court may issue order that: i. Disclosure not be had ii. T/P/M conditions attend disclosure iii. Disclosure method be limited Limit questions (relationships with persons other than the ) iv. Inquiry be limited Limit inquiries v. Trade secrets be sealed The means of producing something, etc. Privileges Attorney-client Need NOT disclose (ALL 6 elements must be met) 1. Communications: only attaches to communications that are intended from one person to another Writing/ Letters Memo Phone call with no written record Oral statements Sticky pad note 2. That is confidential: Communicated in a manner that would make if confidential

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Must be secret & not general public information. 3. From or to attorney: Not limited to lawyer can also include professionals working at their direction (law clerks, etc.) 4. To or from client: does not apply to 1 attorney communicating with another attorney In an organization/corporation, whos the client? Principal or superior: Someone who has authority to hire attorney Employee: can include low level employees if she communicates with attorney at direction of superiors HOWEVER the power with controlling the privilege (waiving, etc.) remains with company When a potential client comes to talk to lawyer, but lawyer does not take the case: Can still apply attorney-client privilege (if the client reasonably believes he is a client at the time of making the statement) 5. For legitimate purpose: Legitimate purpose: Seeking legal advice Preparing a defense How to avoid exposure for liability in the future Illegitimate purpose: Communication to commit a crime, fraud, or tort (Tonya Harding tells lawyer she will bust knees of Kerrigan) Engaging in harassment Obstructing justice 6. For which privilege not waived: NO WAIVER Privilege Belongs to Client (cannot be waived by lawyer) Survives death of client. Client can advertly or inadvertly waive (ex. Disclosing to 3rd party) Once waived a party can be forced to disclose all communications involving the same subject matter. Waiver if can get info somewhere else.

Work product doctrine - Rule 26(b)(3) applies to materials produced by lawyers in process of working for clients. NOT absolute (qualified immunity) Conditional: can be overcome with a showing of great need. Prepared by attorneys or other professionals working at direction of attorneys (ex. law clerks, experts, paralegals, etc.) Work Product what clients pay lawyers to do (not limited to final product) (everything that leads up to the final product) Includes: Notes; Revisions; Conversations; Coordination Privilege belongs to lawyer can be waived by lawyer, not client failure to assert the right privilege at the right time, can waive privilege Basic Work-Doctrine Rule Protects from disclosure : 1. Material prepared in anticipation of litigation a. Includes things that lawyers write & say to each other b. Things that are for the client to see c. Things others do at lawyers direction (ex. lawyer tells an accountant to do an audit for anticipation of litigation) d. No matter how relevant to one seeking info if it goes with the lawyers strategy then privileged e. Timing timing may suggest info was not obtained in anticipation of litigation if the material was obtained before the lawsuit was fined Argument against it being work product there is no pending

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litigation when the materials were prepared Counter argument when someone dies there is always likely to be litigation (strong evidence that there will be litigation when there is serious injury or death) f. Look at intent of lawyer to see if it was in preparation. Unless discovering party can show: (exception to work product doctrine) 1. Substantial need & Means more than relevance has to be critical to proving the case Ex. eye-witness testimony 2. Cant get substantial equivalent & Cant get something close elsewhere. 3. Without undue hardship & a. Too expensive or evidence doesnt exists anywhere else (impossibility) Ex. if other side took testimony very close in time after accident happened so the testimony is more accurate b. argument of why other side can get it without undue hardship : can conduct own interviews with witnesses counter argument witnesses live too far away; memories may have faded (however, generally not good arguments) c. not entitled to something identical only the substantial equivalent d. look to see if there is any other way for the other side to get the substantial equivalent information (that they can get without undue hardship) Nevertheless: (even if exception applies) can NEVER get attorneys: 1. mental impressions includes what an attorney omitted/ did not write down notes on legal pad about the witness statements 2. conclusions 3. opinions 4. legal theories permitted to discover attorneys mental impressions, conclusions, opinions, legal theories

Adjudication Without Trial: Summary Judgment Judgment as a matter of law NOMINAL TEST FOR J/A/M/O/L RULE 56(c): Movant must show: Absence of genuine issues of material fact: There is no disagreement as to the issues (questions of fact) & 1. Fact issue: no reasonable jury could disagree with movants version of what happened 2. Fact question: the piece of info (event) that is critical to deciding the claim (something that is capable of being proved as true or not true) ex. was there a smoke alarm installed in Ps room? For what was the purpose of the travel? 3. Moving Party may satisfy the motion for JAMOL by: (moving party bears burden of proof) submitting affirmative evidence that negates an essential element of the opposing partys claim OR show that the opposing party lacks sufficient evidence to establish an essential element of its claim 4. Source of Facts: evidence that can used in trial responses to interrogatories declaration from potential witnesses or parties responses to complaint pleadings

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depositions admissions on file **use evidence that is available at the time the motion was filed Entitlement to JAMOL (judgment as a matter of law) [questions of law] Law issue: non-moving party fails to state claim or defense upon which relief can be granted the law does not support a claim given the non-disputed facts To find law question: look for what P is suing for 1. Look for the legal test: element of a legal claim (key legal element depend on the answers to fact questions) Ex. was D negligent per se; was there good cause to fire; was the travel expenses deductible 2. Magic word: Under the law of the state of points to what the elements of the claim might be

TEST FOR J/A/M/O/L *applies to SJ, DV, & JNOV: Movant must prevail upon: (for exam) a. Fact Issue: No reasonable jury could disagree with movants version of what happened. i. Identify & Analyze Fact Question 1. Moveant will argue that a reasonable jury must find that {insert fact issue} because But opponent will argue that a reasonable jury could find that {insert fact issue} because b. Law Issue: Non-moving party fails to state claim or defense (or moving party successfully does so). i. Identify & Analyze Law Question 1. Moveant will argue that, if a reasonable jury must find that {insert fact issue}, then moveant is entitled to JAMOL because {insert law issue} a. But opponent will argue that, if a reasonable jury could find that {insert fact issue}, then moveant is not entitled to JAMOL because {insert law issue} Summary Judgment (BEFORE) Rule 56: Is there anything for a jury to decide? Are there facts in dispute? Housekeeping: Usually by Ds, but can be by Ps: Moving party says that its so clear as to what happened, that there is no need to have a trial. Based on admissible evidence only: (stuff that the jury would hear at trial) If jury cant hear it, then cant support/attack SJ motion. 1. Discovery material 2. If its evidence that would not be able to be used in trial: then cannot be used for the purpose of summary judgment 3. If not sure whether evidence will or will not be admissible: do not grant summary judgment motion 4. Inadmissible documents may be considered by the court if not timely challenged 5. Hearsay: generally not admissible Exceptions: 1. If there is some test to test what is in the hearsay 2. Deposition testimony taken by an adverse party but with the opportunity to cross-examine is not hearsay 3. If there are supplemental interrogatory responses (like making the person who did the hearsay into a witness having the live body that can be cross-examined) 4. Certain business records can get around the hearsay rule

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Resolve disputes for non-movant: If there is some reasonable doubt about what a jury would find cannot have summary judgment (look at what a reasonable jury might find) Party opposing SJ is not required to make an evidentiary showing unless the movant clearly demonstrates the lack of a triable issue of fact. Mere scintilla of evidence insufficient: 1. non-moving parties cant base argument of just speculation 2. scintilla: tiny piece of evidence offered by the non-moving party Credibility Qs remain for jury: If there is a doubt as to the credibility of witnesses, SJ cant be granted jurys job. Ex. whether a witness should be believed

Directed Verdict (during) Rule 50(a): Usually at the close of Ps case either party may move for DV after both sides have rested. Timing: raised at the time of close of evidence at trial, but before juries verdict after all the evidence & testimony has been heard If litigant fails to raise 50(a) motion: waives his right to later raise motion for JNOV Ask: would a reasonable jury find that there is a dispute of facts (based on the facts as they exist) Speculation & Guessing is not enough: a jury cant make decision based on speculation & guessing evidence (has to be supported by other evidence) Courts have the power to direct a verdict for insufficiency of evidence. JNOV (after) Rule 50(b): Jury reached a verdict but losing party says it is an unreasonable verdict that a reasonable jury would not have reached (judge reverses juries verdict if juries verdict is found to be unreasonable) To File Motion for JNOV: must first file a motion for DV If party does not file a motion for a DV: waives right to file for JNOV Juries Verdict: has to be based on more than just a possibility (but a preponderance of evidence) for it to be considered reasonable JNOV can only be granted when there is a complete absence of admissible probative evidence to support the conclusion reached by the jury. If there are facts & evidence to support the juries verdict (even if there are facts to support another inference) judge cannot change the juries verdict It is immaterial that the court might draw a contrary inference or feel that another conclusion is more reasonable Juries inference has to be reasonable & based on facts Formula for J/A/M/O/L Fact Issue Movant will argue that a reasonable jury must find that [insert fact issue] because. . . . But opponent will argue that a reasonable jury could find that [insert fact issue] because. . . . Law Issue Movant will argue that, if a reasonable jury must find that [insert fact issue], then movant is entitled to J/A/M/O/L because [insert law issue]. . . . But opponent will argue that, if a reasonable jury could find that [insert fact issue], then movant is not entitled to J/A/M/O/L because [insert law issue]. . . . Right to Jury Trial (7th Amendment) The person with the burden proof has to prove a certain amount of information. There are two rules which restrict what jurors can do: 1. There are things that jurors cannot see or hear

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It is assumed that the jurors are not able to sort out the information that is being delivered. 2. Jurors are not allowed to discuss the trial before the adjudication begins Right at common law preserved based on: 1. Nature of claim (Second most important) What type of law suit are they bringing? What type of claim? If you could get a jury trial at common law then you get a jury trial today. If the claim was of a type heard by the courts of equity or the ecclesiastical courts then you do not get a jury trial. If we have not heard this claim before, then is there a claim from this time that was similar. Rule: If action recognized at common law (1791), then get jury trial Does claim fit in category of law or equity? (focus on how claim would have been treated in 1791) Legal Claims Assumpsit (breach of K) Conversion (stealing) Debt ($ had & received) Duty of innkeepers Libel or sl&er (defamation) Trespass (negligence) Fraud [can go both ways] Equitable Claims Breach/fiduciary duty Ejectment Nuisance abatement (stopping a nuisance) Quiet title Replevin (goods sold by one merchant to someone else an action to return the goods) Vacate arb award Fraud was first recognized in the courts of equity but in 1789 it was also viewed in courts of law [therefore, it can go both ways] Modern Causes of Action not available in 1791 Rule: if there is no exact replica of a claim that would have existed in 1791, look for a close analogy to determine if its a legal claim 2. Nature of relief (Most important) If the wants legal relief, then you get a jury trial. If you are seeking equitable relief then you do not get a jury trial. Legal Remedies $ Damages Equitable Remedies Accounting (wanting to know where the money went) Declaratory Judgment (an order declaring what the rights of the are & what the responsibilities that the has) Injunction (ordering someone to refrain from doing something) Reinstatement (putting the parties back into the position that they were in) Restitution (pretend that this contract never happened, everyone goes back to the position they were in prior to the relationship) M&amus (an order to a government agent or judge that they are to do something or to refrain from doing so) Equitable Money Damages (rejected by the Supreme Court in Terry money is money & it always gets you a jury trial) 3. Practical limits of jury abilities (least important) 2 types of problems with juries 1. Case Too Complex a. The more complex/ difficult the case the less likely it will go to jury (how

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difficult would it be underst&?) Ex. anti-trust; securities fraud (cases where it is hard to figure out what happened) 2. Bias/ Prejudice: will the jury be somehow prejudice about the subject matter or one of the parties? (Do they have some sort of bias that cannot be overcome?) a. ex. racial, religious, local home-town b. Argument for not bias dont know for sure that the jury would be bias (no evidencemight only be an assumption) Safeguards: if jury reached an unreasonable verdict, judge can throw out verdict & declare judgment JNOV (applying the summary judgment test) c. To use this argument MUST HAVE specific evidence: from depos; declarations, etc

Two Types of Problems Statute is silent If a statute does not say whether or not you have a right to a jury trial, then congress is silent on the issue. Or when congress establishes an non-jury agency. You go through the above three step analysis . Statute Establishes non-jury trial The Public Rights Exception When statute establishes non-jury forum, PRE applies if claim (if fulfilled, then no jury trial is required [must have both]): 1. Didn't exist at common law Meaning that this claim did not exist. (ie: the right to form a union) 2. Is brought by or against U.S. The government is a or a . Equal Protection Guarantee No juror may be excluded from jury based on his/her race by use of peremptory challenge Exceptions 1. When a juror is biased. 2. There is a limited number of peremptory challenges (in federal court typically three) New Trial (Rule 59) May be granted if: Miscarriage of justice: OR Something so prejudicial has occurred that theres no way to correct it. Anything that would make someone question as to whether the verdict was good. ex. if there were allegations that the jury was being bribed (never proved but cast a taint over the proceedings). Serious error of law: OR Must be a mistake that seriously affects the verdict. ex. judge erroneously left out evidence or let in something that the jury should not have heard; judge misinstructed jury as to the law Verdict is against the weight of evidence: the judge does not agree with what the jury did then judge may grant a new trial sends back for another trial (unlike JNOV- which reverses) the judge is allowed to throw out the jury verdict, but judge cannot substitute verdict

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Final Judgment Purposes Establish time to appeal Avoid piecemeal litigation Preclude relitigation Definition Any district court order that resolves all claims & defenses & leaves nothing to accomplish Preclusive Effects Doctrines (Rules Limiting Relitigation) Res judicata (claims) Definition: cannot re-litigate the same claim (or a transactionally related claim) if you fail to do that- you are barred from bringing it later on Defenses: raised by D - if not raised, waived Asserted by a motion to dismiss action (FOR EXAM) Apply if there are 2 sets of litigation Claim preclusion: Precludes relitigation when claim in prior judgment was: (ALL 4) 1. Final, valid, & binding: binding Assume final on exam. 1. Final: Must have a judgment satisfying the final judgment rule. 2. Valid: There is SMJ. 3. Binding: There is PJ & proper constitutional notice. 2. On the merits: merits Claim or defense in question has been resolved Anytime Summary Judgment granted, merits have been determined. JMOL- on merits 12b6 if granted w/prejudice no more opportunity to amend doesnt matter how the judgment came out as long as there was a judgment Default judgment- some courts yes some no. Not on merits: Rule 11 Lack of jurisdiction Improper venue Failure to join an indispensable party 3. By/against same party/privy: party/privy Same people involved always have mutuality. Parties must be identical to those in the 1st. Privy is someone that st&s in the shoes of someone that was in court in the past by K or descent/devise or force of law. Contract Operation of law; Stat, case, judge Succeeded to rights by will or intestate privy relationship if there is a judgment against one party, it is binding against the other party 4. Based on same transaction or Occurrence: Occurrence if claim is identical: meets standard Claim in action 2 has to be based on the same transaction as litigation 1 If not identical as long as claim 2 satisfies the same transaction or occurrence test then considered same Collateral estoppel (issues) Issue Preclusion Definition: One or more issues (issues of fact) that are precluded from being

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relitigated because they have already been decided. Estopped from claiming that that issue should be decided differently that it was in the 1st action. (focus on a certain factual issue will it be relegated or will it be estopped?) once an issue of fact is determined it may be conclusively established & assumed without proof in action 2 For Exam: apply when there is motion for partial summary judgment (whether motion for partial summary judgment should be granted) conclusively establish (if these words come up- use Collateral Estoppel) Step 1: what factual issue is preclusion is being sought (then apply the test) Precludes relitigation when issue in prior judgment was: (Must satisfy all 5) 1. Identical to present issue: issue must be exactly identical. If issue is merely similar it is not good enough. 2. Actually litigated: Did they have fight over that issue in the first litigation? How was the issue raised? Facts to look for briefs filed, testimony on the issue, witnesses Not litigation if Default judgment, someone did not show up 3. Necessarily decided: Issue whose adjudication was necessary to the verdict in the first action. Look to see which issue the jury focused on if there is more then one theory of liability then not necessarily decided Look for general verdict, special verdict. For Exam: but for that issue being decided that way could not have gotten the decision (result of judgment) then necessarily decided 4. Against same party/privy: they have had their day in court already on the issue The party against whom estoppel asserted was in prior litigation or privy. Only requires one the same people (against whom the estoppel is being asserted) Against someone in prior case Motion can be brought by anyone (even if there were not in prior case) A stranger can use estoppel against that person even if they were not a party to the 1st litigation Stranger to 1st action can never be bound (not fair), even if that issue was litigated in the 1st suit (due process) another D can relitigate the same issue (cannot bring motion against D who was not part of first action) 5. Result of full & fair opportunity: If there was something incomplete or unfair in the prior litigation Check Earlier Litigation for: a. Availability of joinder: Party not joined that wants to participate no fair opp. Or, could have intervened & did not then full & fair opp. b. Jurisdictional defect c. Improper notice: The guy being precluded today didnt have proper notice of the past suit. d. No jury trial: have to see if 7th applies raises the possibility that there was not a full opportunity to be heard. e. Missing evidence/witnesses: That were beyond the control of the party against whom estoppel is being asserted that have now showed up person precluded did not have a chance to fully litigate. f. Weak Incentive: prior litigation was small claims- No incentive to litigate g. Poverty: too poor to litigate in prior litigation h. One hand tied behind back: Anything else that would suggest that the person is estoppel against did not get a full & fair opportunity. Held in contempt. Not able to mount effective defense. Hypothetical: (Offensive Collateral Estoppel) There are fifty passengers on a train who were injured in a train. One brings an action that it was a result of the driver going to

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fast, & fails. If the second brings the same suit, & the third & fourth & fifth, etc all fail. Why weren't the passengers barred from bringing the same issue to the courts over & over again. The problem is that the person who estoppel would be held is someone who was not party/privy to the stranger that came before them. Non-mutuality someone was not in the case & therefore not bound in the case. For passenger number 26 the jury held for the that the engineer was going too fast. Passenger number 27 then files the case & files for summary judgment, citing to litigation number 26. The passenger can then file for this because it was the same party/privy. Alternative Dispute Resolution Modernly, a lot of people have turned the tides in civil litigation where the parties agree that they will turn to alternative dispute resolution to resolve their problems. Non-Litigation Options: Some Common Forms of ADR Arbitration Means typically speaking, instead of going to court & have a judge & jury, you will go before someone who does not wear a robe & agreed to have someone listen the argument & then decide. Mediation It essentially going to counseling. This is only someone who tries to forge a kind of settlement which contains a non-yielding result. Investigation/fact-finding You find a neutral to simply find out what happened. They may or may not make recommendations. Hybrids

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