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Pleading

o FRCP 8(a)(1) - statement of subject matter jurisdiction


the complaint must contain a "short and plain statement of the grounds upon which the
court's jurisdiction depends.

o FRCP 8(a)(2) - statement of a claim (legally and factually sufficient)
a complaint must include only "a short and plain statement of the claim showing that the
pleader is entitled to relief"such a statement must simply "give the defendant fair
notice of what the plaintiff's claim is and the grounds upon which it rests"
Ex of pleading negligence - "D drove her car while intoxicated and on the wrong
side of the highway, causing it to strike the car in which P was riding."

o FRCP 8(a)(3) - demand for judgment (award)
requires the plaintiff to make her "demand for judgment for the relief the pleader seeks"


o Gillispie v. Goodyear Service Store (extremely vague complaint)
Rule- When a complain alleges defendant is indebted to plaintiff in a certain amount and such
debt is due, but does not allege in what manner or for what cause defendant became indebted
to plaintiff, it is demurrable for failure to state facts sufficient to constitute a cause of action.

o Dioguardi v. Durning (man representing himself doesn't know English very well.)
Rule - The federal rules of civil procedure only require that a complaint contain a short and
plain statement of the claim showing a right to relief.

o Bell atlantic corp v Twombly 2007 (large telephone co. Anti trust case. Narrowed to anti-trust)
Rule- In order for a complaint to survive dismissal on the pleadings, the complaint must
include enough facts to state a claim to relief that is plausible on it's face. Forced more
restrictive pleading standards

o Garcia v. Hilton Hotels International, Inc. (was slandered as procuring rooms (pimping) in the
hotel for prostitution.)
Rule- A complaint viewed in its most favorable light should not be dismissed if the plaintiff at
trial could make out a case entitling him to relief from the allegations of the complaint. A
conditional privilege isn't grounds for dismissal, while an absolute privilege is. When material
allegations are insufficient, a motion for a more definite statement is proper.

Pleading Special Matters

FRCP Rule 9(b) & 9(g) (fraud, mistake, special damages)

o FRCP 9(b) - fraud and/or mistake
" in all averments of fraud or mistake, the circumstances constituting fraud or mistake
shall be stated with particularity"

o FRCP 9(g) - special damages
"when items of special damages are claimed, they shall be specifically stated.
Special damages are those that do not normally flow from an event.


o Denny v. Carey (bank fraud not rigorous only sufficient)
The Rule- the requirements of fed r civ p 9(b) is met when there is sufficient identification of
the circumstances constituting the alleged fraud for the defendant to prepare an adequate
answer to the allegations

o Tellabs inc v. makor issues and rights
The Rule- In deciding whether a securities fraud complaint alleges facts sufficient to establish
a "strong inference" A plaintiff must show that fraud is a more likely explanation than any
other more innocent explanation.

Pleading damages

o Default case - damages can't exceed those in the complaint b/c that is what the defendant
consented to by defaulting (FRCP 54.C)
o Contested Case - if the defendant contests the amount than the award is up for grabs. (FRCP
54.C)

o Ziervogel v. Royal packing co.(special damages - The injury victim was hurt when her car and
the owner's truck collided in an intersection. plaintiff blood psi)
The Rule- When items of special damage are claimed, they must be specifically pleaded

o Bail v. Cunninghame Brothers Inc. (Plaintiff, an employee of a subcontractor, was injured
when a scaffold collapsed.)
The Rule- In federal courts, a claimant may be awarded damages in excess of those demanded
in his pleadings FRCP. 54

RESPONSES

FRCP 8(b) - provides 3 responses
Admit allegations
Deny allegations
Say she lacks sufficient information on which to admit or deny (basically a
denial)
One can deny in part (must be very specific)
One can deny in general
o FRCP 8(d) - allegations not denied are admitted.

FRCP 12(a) - motion to answer claim

o FRCP 12.C - motion for judgment on the pleadings
A party may move to get a judgment on the strength of the pleadings.

o FRCP 12(e) - motion for a more definite statement (must be used before answering)
Permits the D to bring a motion for more definite statement, which address a
complaint that is "so vague or ambiguous that a party cannot reasonably be
required to frame a responsive pleading."

o FRCP 12(f) - motion to strike, challenging the substantive sufficiency
Any party can use this rule. Must be used in 20 days after responsive pleading
"The court may strike from a pleading an insufficient defense or any redundant,
immaterial, impertinent, or scandalous matter.".
o Consequences for not raising 12(b) defenses
12(g) and 12(h) - if 12(b)(1-3 & 5) are not raised in pre-answer, they will be
considered waived and not usable thereafter.


o American Nurses Association v. Illinois(D argued they didn't present a legal claim)
The Rule- A federal complaint should not be dismissed for failure to state a claim unless it
appears that the plaintiff can prove no set of facts in support of his claim which would entitle
him to relief.

Denials FRCP 8

o Zielinski v philadelphia piers inc. (pier forklift accident. D didn't deny involvement until too
late)
Rule - In the fed courts, a defendant who knowingly makes inaccurate statements
may be estopped (equitable estoppel) from denying those inaccurate statements at
the trial.

Affirmative Defenses

FRCP 8.C has nineteen affirmative defenses
o Unless allowed to amend to set forth the defense, these defenses must be pleaded in
the answer.

FRCP 12(b) - Motion to dismiss (pre-answer motion) (AFFIRMITIVE DEFENSES)
o D who moves to dismiss under this rule, need not answer the complaint until after the
motion is decided (FRCP 12(a)(4))

o Valid defenses raising defects in Court issues
12(b)(1) - court lacks subject matter jurisdiction
12(b)(2) - court lacks personal jurisdiction over the D
12(b)(3) - court is not a proper venue

o Valid defenses raising defects in procedure
12(b)(5) - insufficiency of service of process
12(b)(7) - failure to join an indispensable party

o Motion to dismiss
12 (b)(6)- [a motion to dismiss for] failure to state a claim upon which relief can be
granted
Asserts that even if plaintiff were to prove all the allegations in the complaint, she
would still not be entitled to any relief.
Does the compliant itself state a legally sufficient claim? The facts in the
complaint are alleged true, thus, this is a legal queston.
Conley v. gibson - 12(b)(6) should only be granted when " it appears beyond
doubt that the plaintiff can prove no set of facts in support of his claim which
would entitle him to relief"


o Ingraham v US (govt. malpractice suit seeking lowering of award to P)
Rule - a statutory cap on damages (if claimed as an affirmative defense) IS an
affirmative defense that is waived if not raised in the pleadings

Amendments

FRCP 15
o Both P and D have a right to amend
o 15(a) - P must amend before "responsive pleading" (D's answer). A motion is not
a pleading.
o 15(b) - D can amend within 20 days of serving their answer.
o Whenever a party amends, the opposing party must respond per FRCP 12

Rule 15(a) identifies three types of pretrial amendments:
(1) those allowed once as a matter of courseoften referred to as amendments as of
right;
(2) those made with the written consent of the other parties (permissive); and
(3) those permitted by the court. (permissive)

Rule 15(b) - Variance - rule addresses the topic of so-called trial amendments. It provides
guidance for situations when a party advances at trial a claim or defense that was not included
in any pleading.
Used when a party seeks to introduce evidence of a claim or defense that she did not
plead.
Two scenarios can occur when using this rule
Opposing party agrees to allow the variance
The first two sentences apply in this scenario
Opposing party objects the variance
The last two sentences apply in this scenario.

Rule 15.C - relation back (amendments after statute of limitations has run)
15.C.A - relation back is permitted when "permitted by the law that provides the
statute of limitations (will say so in the law itself)

15.C.B- adding a new claim
Relation back is permitted if the amended pleading "arose out of the
conduct, transaction or occurrence set forth or attempted to be set forth in
the original pleading"

15.C.C - adding a new defendant. three requirements. Basically one class of
cases - one in which the plaintiff sued the wrong defendant originally, but the
right defendant knew about the case and knew that, but for a mistake, she
would have been named originally.
The claim arises out of the same conduct, transaction, or occurrence as
that stated in the original complaint
Within 120 days after filing of the original complaint, the new defendant
has received such notice of the suit that she will not be prejudiced in
defending (15.c.3.b)
Within the same period, the new defendant "knew or should have known
that, but for a mistake concerning the identity of the proper party, the action
would have been brought [against her] (15.c.3.b)

Rule 15(d) authorizes supplemental pleadings by which a party may introduce events that
occurred after the party's original pleading was filed.

Relation back doctrine - a plaintiff can usually amend her complaint after the statute of
limitations period otherwise would have run on the claim as long as the claim asserted in the
amended pleading arose out of the same conduct, transaction, or occurrence set forth in the
original pleading.
Additional defendant - does not allow additional defendants after the statute of
limitations is up unless the new D is an entity related to the original defendant, plaintiff
has a strong interst in obtaining relief, and D would not suffer prejudice (can sue diet
coke for coke, but not pepsi)
Misnamed defendant - plaintiff should be allowed to fix the error.
Unnamed defendant - not allowed.

Equitable tolling -The principle that lawsuits for certain types of torts are not barred by the

statute of limitations unless the plaintiff has failed to use due care to discover the harm done.
To toll a statute of limitations is to do something to delay it from taking effect, to
stop the clock from running.

o Beek v. Aquaslide n dive Corp.(slide not his, court let him amend so he wouldn't be liable)
Rule- a motion to amend an answer Should be granted unless the
opposing party can show prejudice.

o Moore v. moore case (Parent custody case, evidence implies info, allowed to amend)
o Mother moved to conform her pleadings to the evidence. She (mother) made 3
counterclaims: custody, maintenance, and child support. None of these were in the
either parties pleadings.
o 15.b.2. is the consent implied or expressed conforming to evidence pleading.

o Worthington v. Wilson (john doe case physical abuse police)
o Rule - an amended complaint among certain persons listed as unknown in the
original complaint Does not relate back to the time of the original complaints
filing
relation back amendment under Fed. R. Civ. P. 15(c)

Provisions to deter frivolous pleadings

FRCP Rule 11

o FRCP 11 Discretionary -
o a court may impose sanctions.

o Limited to deterrence - the sanction is to be limited to that which is sufficient to deter
repetition of such conduct or comparable conduct by others similarly situated.

o Ordinarily paid to the court
o all money will be paid to the court.

o FRCP 11(1) separate motion
o A motion for sanctions must be made "seperately from other motions"
o 21 day safe harbor
The motion is not to be filed with the court until 21 days after it is served on the
opposing party, and then only if the challenged paper is not withdrawn or
corrected.

23.1(shareholder/truthful). The court has discretion to impose rule 11 sanctions. 21 days to fix
statement ("safe harbor" rule to remedy pleadings)

o Surowitz v. Hilton Hotels Corp.(derivative/ stock actions old woman didn't know info in
complaint)
o Rule - The party verifying a complaint as required by the FRCP is not required
to totally to verify the complaint on the basis of her own personal knowledge if
she has been advised by a competent individual that the allegations in the
complaint are true.

o Hadges v. Yonkers Racing Corp (horse racing case)
o Rule- Pursuant to rule 11, those facing sanctions must have adequate notice and
the opportunity to respond.

JOINDER

FRCP 13, 14, 18, 19, 20, 23, and 42 are the joinder provisions.
Joinder claims are unlimited in federal court. Anything can be joined (See M.K. case).

o FRCP 20(a) is the governing rule for permissive joinder

o Joinder of parties acronym TEST-
TO + CQ (Transaction or occurrence and Common Question (of law or
facts)

o Does not require parties to be joined whenever the criteria in the rule are met.

o Joinder of plaintiffs
Multiple plaintiffs may voluntarily join together in an action they satisfy TO+CQ

o Joinder of defendants
If one or more plaintiffs have a claim against multiple defendants, these
defendants may be joined based on the TO+CQ
At plaintiff's option: joinder of multiple defendants is at the option of the
plaintiff.

o Aggregation where on P meets the amount
Multiple plaintiffs are permitted to aggregate their claims to meet the amount in
controversy requirement, if at least one plaintiff meets the amount.

o Tanbro fabrics corp v. beaunit mills inc
o Rule -

Even though there are separate relationships, contract or duties existing
between parties in a multiple action, modernly, a plaintiff; to consolidate his
claims, need only show; 1. prima fasciae that one of the defendants caused the
injury; 2. the defendant's alternative liability arose from a common transaction;
and 3. that there exist questions of law and fact common to all parties

o Ryder v. jefferson hotel co. (husband and wife sleeping inmotel room owner kicks them
out)
o Rule -

Where two or more persons suffer a tortious act arising out of the same
occurrence or transaction, each person's cause of action must be severed and
tried separately, if the torts are of a personal nature.

o m.k. v. tenet (cia withheld information on certain plaintiffs harms etc.)
o Rule -

an alleged pattern of obstruction of counsel justifies joinder of plaintiff's
under federal rule 20(a)

o The Ellis Canning Company, Co v. International Harvester Company, Co (mechanic
set tractor on fire) FRCP 17(3)
o RULE- an insured who has been fully paid for his loss is not the real party in
interest and, hence, cannot maintain an action to recover the amount of such loss
for the use and benefit of the insurer

Compulsory Joinder

If there is a possibility of multiple lawsuits without the party then the court will usually rule
that the party is indispensible.

Two categories both must be considered. LOOK AT BIG PICTURE DONT GET
CAUGHT IN "N" OR "I"

FRCP 19(a) Necessary parties
less vital group consists of parties who (1) must be joined if this can be
done; but (2) in whose absence because of jurisdictional problems the action will
nonetheless be permitted to go forward.
A party is necessary if the party is not indispensible and either of the two
following tests are met
Incomplete relief
In the persons absence, complete relief cannot be accorded among
those already parties OR
Impaired interests
The absentee has an interest relating to the action, and trying the
case without the absentee will either impair the absentee's
interest or leave on of the people already parties subject to
multiple or inconsistent obligations.

FRCP 19(b) indispensible parties
The vital group consists of parties who are so vital that if their joiner is
impossible for jurisdictional reasons, the whole action must be dropped.
Factors:
When the court decides whether a party is indispensable, the
factors are
The extent of prejudice to the absentee, or to those
already parties
The possibility of framing the judgment so as to
mitigate such prejudice
The adequacy of a remedy that can be granted in the
party's absence
Whether the plaintiff will have an adequate remedy if
the action is dismissed.

Situations in which compulsory joinder issues commonly arise:
Joint obligors: joint promisors under a contract should be joined whenever
possible
Tortfeasors: whenever possible a D should join all parties potentially liable,
although they are not considered necessary
Joint obliges: where two are jointly owed a duty under a contract, courts usually
hold they are indispensable, and have dismissed if not joined
Co-owners of property
Shareholders: in a derivative suit by a shareholder, the corporation is usually
looked at as an indispensable part.

Bank of California nat. ass'n v superior court (estate was split up between many
people)
Rule -

Necessary parties are those who are so interested in the controversy that
they should be normally joined in order to enable the court to do complete
justice, but whose interests are separable so they are not indispensable parties,
that is, parties without whom the court cannot proceed.

Provident tradesmen's bank and trust co. v. Patterson (multiple car crash estate
to be split)
Rule -

In the absence of a party who cannot feasibly be joined, a court should
not dismiss the action if, in "equity and good conscience," it could proceed
without the party.



Modern Rules- parties may be joined in one action if:
a right to relief is asserted by or against them jointly, severally, or in the
alternative;
in the alternative: if a plaintiff is in doubt as to which of several D. is
liable, a claim can be brought in the alternative to determine who is liable.
separately or jointly: each plaintiff is not required have an interest in
every cause of action, they can each seek sep. relief either separately or
jointly.
the right to relief arises out of the same transaction;
there is at least one question of law or fact common to all parties sought to be
joined.


o Modern Rules- persons are to be joined if feasible; Rule 19 provides that any person with
interest in the subject matter shall be joined if:
in his absence complete relief cannot be accorded those already parties;
his interest is such that to proceed without him would be substantial prejudice as
a practical matter (impair his ability to protect his interest in later proceedings, or expose
the parties already before the court to the risk of double liability.) If the person to be
joined cannot be made a party, the court must determine in good faith whether the action
must be dismissed.*
*if an absentee is seen as potentially indispensable, his non joinder or
joinder can be raised at any time, even at trial. Lack of or delay in this non
joinder can be seen as grounds to dismiss (Provident Bank v. Trust Co.)



Counter Claim

o FRCP 13 authorizes a defending party in a suit to assert claims back against a party who has
claimed against him.

o 13(a) compulsory counterclaim
If the defending party's counterclaim arises from "TO", he must assert it or lose
it.
Any defending party, not just original defendant, can assert counterclaims
against a party who has claimed against him.

o 13(b) permissive counterclaim
One may assert counterclaims completely unrelated to the original claim. Would
involve different events from the main claim.
Any defending party, not just original defendant, can assert counterclaims
against a party who has claimed against him.

o 13(g) cross-claim
a claim asserted by one party against a co-party (someone on the same side of the
"V").
Must arise out of the same "TO"

o LASA PER L'INDUSTRIA DEL MARMO SOCIETA PER AZIONI v. Alaxander
(MARBLWE CASE)
o RULE -

cross-claims, counterclaims, and third party complaints arising out of
the same transaction or occurrence as the subject matter of the original complaint
MAY be joined with the original complaint

o FRCP 18(a) combining claims - a party seeking relief from an opposing party may join with
his original claim any additional claims he has against that opposing party.
o Unlike 20(a), 18(a) requires NO "TO"
o This applies not only to the original plaintiff, but also to any party seeking relief against
another party, whether on a counterclaim, cross claim, or 3rd party claim.

o Four part test to determine whether claims arise out of the same transaction or occurrence for
the purpose of characterizing a counterclaim as compulsory or permissive.
Are the issues of fact and law raised by the claim and counterclaim largely the
same?
Would res judicata bar a subsequent suit on defendant's claim absent the
compulsory counterclaim rule?
Will substantially the same evidence support or refute plaintiff's claim as well as
defendants counterclaim?
Is there any logical relation between the claim and the counterclaim?

o Harris v Avery (stolen horse. Slander and false imprisonment)
Rule - A plaintiff may unite causes of action where they have arisen from the
same transactions connected with the same subject matter.

o M.K. v. Tenet (CIA case)
Rule - federal rule 18 permits joinder of all claims a party has against an
opposing party

o US v. Heyward-Robinson co. (construction federal joinder, compulsory claims)
Rule- When a counterclaim is asserted on a contract in federal court, a claim
based on another contract can be joined, if there is a logical relationship between
the claims


Impleader
must be if me, then them! and not NOT me, but them!
Only Based on indemnification
Impleading can only work against someone not a party. It brings in an entirely new party.


FRCP 14(a) - gives DEFENDANT limited right to bring into the suit new parties against whom she
has claims related to the main action. The original defendant becomes the 3rd party plaintiff.

FRCP 14(b) - plaintiff may implead when a counterclaim is filed against them. The Plaintiff may
implead a third person who is liable to him for any judgment on the counterclaim.

o The impleaded party may be liable to the D for "all or part" of the plaintiff's claim against the
D.

the third party may plead any defenses against the pl. claims for relief, even if
same as def. (4th and 5th sentences)
the court may grant a sep. trial on any sep. issues if needed to prevent prejudice

o The impleader claim is treated like an original suit for pleading
The 3rd party plaintiff must comply with pleading requirements (rule 8-11).
The 3rd party plaintiff must respond under rule 12
3rd party defendant may also file counterclaims against 3rd party plaintiff and
may implead other parties
The plaintiff AND 3rd party defendant can assert claims against each other if
they arise out of the same "TO" (6th and 7th sentences)

o right to indemnity (cash causal connection) (A contract to compensate or reimburse a
person for possible losses of a particular type;)
impleader rules are confined to those situations in which the defending party has a right
to indemnity, in whole or in part, against the impleaded third party.
EXAM TIP: most courts do not allow a plaintiff to implead a def. insurance
company, it is only the def. right to implead his own insurer.
No right to indemnification under state law
If the appropriate state doesn't recognize indemnity the FRCP doesn't
create that right.

Jeub v b/g foods, inc. (served bad ham at one of their restaurants, sued umbrella
corp.)
Rule - In a federal action, impleader is permitted of a party who is or may
be liable for indemnification to a party-defendant so long as the applicable
state substantive law regarding indemnification is satisfied.

o Policy
Favoring impleader
The efficiency of hearing the related claims together
Avoidance of repeated suits or inconsistent judgments
Disfavoring impleader (courts may allow a separate trial)
Delay in seeking it
Complication of the issues in the main action
Potential prejudice to the plaintiff from impleading a sympathetic 3rd party.

Too, Inc. v. Kohl's Department Sotres, Inc. (stealing clothing designs, mulitple parties)
o Rule -Leave to entertain a proposed third-party claim should be granted, when after
considering the delay by the movant, the complication of trial, and the merits of the proposed
third-party complaint, the court concludes that the benefits of consolidation outweigh the
prejudice to the plaintiff and third-party defendants.

Class Actions
o such actions are allowed where considerations or necessity or convenience justify an action on
behalf of the group rather than multiple actions by or against the class members individually.
(on behalf of all members of a class)

o Fed Rule 23- provides that members of a class can sue or be sued with binding effect on the
class as a whole. (most states have adopted rule 23)

Fed. R. Civ. P. 23(a) states four threshold requirements applicable to all class actions: (1)
numerosity, a class so large that joinder of all members is impracticable; (2) commonality, questions
of law or fact common to the class; (3) typicality named parties' claims or defenses are typical of the
class; and (4) adequacy of representation, representatives will fairly and adequately protect the
interests of the class.


Pre-reqs of Class Action suits: WORK ON THIS COME
NEXT OUTLINE SESSION 23A


Federal Claim
o In a class action only ONE plaintiff need to have an injury that's over 75K.

23(A)(4) Fairly and adequately protect the class.
Court will look at representative of class and the attorney to see if they can adequatly and
fairly protect the class.


Numerous parties-the class must be so numerous that joinder of all members individually is
impractical. (usually needs to be around 40 or 50 but based on courts discretion
Common question- the action must involve questions of law or fact common to the class
(commonality, rule 23(a)
Representatives claims typical (typicality)- the claims or defenses of the persons maintaining
the action on behalf of the class must be typical of those of the class generally (23(a)) because the
representative acts on behalf of all claimants, the court needs to be assured that he or she will have
the same objectives as the members of the class and sufficient motivation to protect their interests
Adequacy of representation- the persons representing the claims of the class must be able to
protect the class interests, all members of the class (23(a)) need to make sure that there is no conflict
of interest between representative and class
Numerous parties.- litigation is to be conducted by the persons whose rights are to involved as
named parties: 1) no fixed minimum
Must look at the size of each members claim (the smaller the members claim, the
more likely the class action to be allowed because they wouldn't contest it on their own)
The practical likelihood that individual suits will be brought (the lower the
likelihood, the more likely that class actions will be allowed)
The public importance of the right being enforced (the greater the public
important, the more likely the class action to be allowed)
The geographic location of the class members (the more difficult the location and
distance for class members to intervene, the more likely that a class action will be
allowed)

Exam tip- if the question involves a small numbers of plaintiffs, and you must determine whether
the court would allow a class action, a good rule of thumb is that the less likely it is that individuals
would bring their own suits or intervene, because of small damages or distance, the more likely it is
that the court will allow a class action.

No fixed maximum- 1) class must be manageable 2) notice requirement, the larger the class the
more difficult to notify all members, but if possible may be allowed.

Three categories of class action law suits

23(B)(1) (limited fund)- applies to situations similar to the circumstances
requiring the joinder of necessary parties under Rule 19
Test- a class action is allowed if individual actions by or against members of
the class would create a risk of either: (a) inconsistent decisions forcing an
opponent of the class to observe incompatible standards of conduct
(23(b)(1)(A); or (b) the impairment of the interests of the members of the class
who are not actually parties to the individual actions (23(b)(1)(B)).
EX of (B): if litigants are allowed to proceed individually, there is a risk
that those who sure first will deplete the fund and leave northing for the
latecomers.
23(B)(2) - civil rights class action
A class action is allowed if "the party opposing the class has acted or refused to
act on grounds generally applicable to the class, thereby making appropriate
final injunctive relief ordeclaratory relief with respect to the class as a whole"
If the suit Is for an injunction or declaration that would affect all class
members this is the right category.
The defendant's conduct need only be 'generally applicable' to the class;
there is no requirement that the conduct be damaging or offensive to every
class member.
3. 23(B)(3) - most common type. Members claim they have been injured in the same way by
defendant.
Two requirements
1. Common questions : the court must find that the "questions of law or fact
common to members of the class predominate over any questions affecting only
individual members.
2. Superior methods: the court must also find that "a class action is superior to
other available methods" For deciding the controversy. In deciding 'superiority'
the court will consider four factors:
a. The interest of class members in individually controlling their separate
actions
b. The presence of any suits that have already been commenced involving
class members (if there are too many it hurts the class action)
c. The desirability of concentrating the litigation of claims in a particular
forum
d. Any difficulties likely to be encountered in the management of a class
action.


o Castano v. American Tobacco Co
Rule -

Class actions may be certified under FRCP 23(b)(3) only if the
requirements of predominance and superiority are met.

o Hansberry v. Lee (race covenant can't sell land to blacks not everyone was under that
covenant)
Rule -

There must be adequate representation of the members of a class
action or the judgment is not binding on the parties not adequately represented.

o Phillips Petroleum Co. v. Shutts (class action from peeps in all 50 states.)
Rule-

a state MAY exercise jurisdiction over a class action plaintiff even
if the plaintiff's contacts with the state would not confer jurisdiction over a
defendant

o Amchem Prods. v. Windsor (asbestos settlement class action)
Rule-

class certification MUST meet the requirement of FRCP 23, except
manageableness, even if certification is for settlement purposes only.

o Ortiz v. Fibreboard Corp (asbestos class action)
Rule - if class action is a 23(b)(1) claim, then the due process requirement
is heightened because there is no notice requirement.

Discovery

o privileged communication. N. A communication that does not have to be revealed during
discovery because it occurred in a special situation, such as information revealed to a doctor
by a patient or from one spouse to another.

o FRCP 26(b)(1) sets the SCOPE of discovery
o FRCP 26(b)(2) limits discovery

Mandatory discovery

o Required Initial disclosure FRCP 26(a)(1)

All witnesses with discoverable information FRCP 26(a)(1)(A):
first, each party must disclose the name, address, and phone number of
each individual likely to have discoverable information that the party
plans to use in the case
Documents FRCP 26(a)(1)(A)::
Second, a party must furnish a copy, or else a description by category and
location, of all documents and tangible things in that party's possession,
that the party plans to use in its case.
Damages FRCP 26(a)(1)(d):
Computation of each category of damages claimed by disclosing party
Insurance:
Copy of any insurance agreement.

o Required disclosures concerning expert witnesses

FRCP 26(a)(2): requires each party to disclose to each other party the identity of
anyone who may be used at trial to present expert testimony.



Depositions

o After the beginning of an action, any party may take the oral testimony of any person
thought to have information within the scope of discovery. This is known as oral
deposition.

o Deponent must respond as to only her present knowledge or recollection. Much
different than interrogatories where they have to do some research with available info.

o Important random rules
FRCP 30(b)(1) - notice is required to be given to all parties with relevant info of
who when where the person is being deposed.
FRCP 30(a)(2)(B) - a person can be deposed only once unless court orders more

o Oral depositions

Usable against non-party
Not only parties, but any non-party with relevant information, may be
deposed

Subpoena
If a non-party / party is to be deposed, then the discovering party can only
force the deponent to attend by issuing a subpoena. This subpoena must
require the deposition to be held no ore than 100 miles from the place
where the deponent resides, is employed, or regularly transacts business in
person
frcp 45(3)(a)(ii)
If a party is to be deposed, a subpoena is not used. Instead, non-
compliance with the notice can be followed up by a motion to compel
discovery or to impose sanctions under frcp 37
If a nonparty then you have to get a subpoena first before sanctions.
If a plaintiff is summoned for a deposition they must go wherever the
defendant demands.

Limited to 10
Each side is limited to a total of ten depositions, unless the adversary
agrees to, or the court issues an order allowing more. Frcp 30(a)(2)(a).
Method of recording
The party ordering the deposition can arrange to have it recorded by
stenography (court reporter), by audio tape recorder, or by video
recorder. Frcp 30(b)(2)

Request to produce (FRCP 34)
The person seeking discovery will often also want documents held by the
deponent. If the deponent is a party, the discovering party may attach a
FRCP rule 34 request to produce to the notice of the party. But if the
deponent is a non-party the discovering party must use a subpoena duces
tecum.
FRCP 30(b)(6) corp. assoc. notice.
An attorney may notice the deposition of a corp. or assoc. requiring
the latter to produce the person or persons having knowledge of the
subject matter upon which the deposition is to be taken.

Depositions upon written questions
Any party may take the oral responses to written questions, from any
person (party or nonparty) thought to have discoverable information. Frcp
31. this is called a "deposition on written questions"
Distant non party witnesses
Depositions on written questions are mainly used for deposing
distant nonparty witnesses. Such witnesses cannot be served
with interrogatories (since these are limited to parties), and cant
be compelled to travel more than 100 miles from their home or
business.

Discovery prior to commencing a lawsuit -In re Ford (cops shot her father she
is looking to do a discovery process before file is claimed )
Rule - FRCP 27 (Depositions to Perpetuate Testimony) does not permit a
pre-complaint deposition without a showing that the deposition is necessary
for perpetuating the witness's testimony (dying, senile etc).

Relevance discovery Kelly v. Nationwide Mut. Ins. Co (insurance company was
looking for specific information that could only be found with discovery)
Rule -

Interrogatories are proper that are relevant to an issue in the action,
seek unprivileged information and information that would also be
admissible as evidence, but do not seek discovery, the manner whereby the
opponent's case is to be established, evidence that relates exclusively to his
case, nor what his witnesses will testify.

Privileged information - Marrese v. American Academy of Orthopaedic
Surgeons (P wanted all the info of all applicants for the Dr. group)
Rule -

A motion to limit discovery under rule 26 should not be granted
where the party seeking discovery would incur hardship without the
material sought, and the party against whom discovery is sought would
suffer hardship if forced to produce the material sought, if the competing
interest can be served with minimal damage to either.

Protective order - FRCP 26.C -Seattle Times Co. v. Rhinehart, (newspaper
wanted al the members and their contributions to print)
Rule -

A protective order in a discovery matter ordering a newspaper not
to publish discovered information does not violate the first amendment

Mandatory discovery Cummings v. GMC (car co. had video evidence it didn't
give out in discovery request)
Rule - Federal rule 26, as amended in 2000, does not require disclosure of
relevant evidence that a party does not intend to use at trial.

Polycast technology corp. v. uniroyal inc. (co. didn't want their auditor to be
deposed)
Rule - A non-party witness should be ordered to be deposed if his
testimony is relevant and not duplicative of other witnesses' testimony.


Interrogatories to the parties

An interrogatory is set of written questions to be answered in writing within
30 days by the person to whom they are addressed. Interrogatories may be
addressed only to a party.

FRCP 33(a)
Each party is limited to 25 interrogatory questions directed to any other
party, unless the parties stipulate otherwise or the court orders otherwise.
Available information frcp 33(a)
A party served with interrogatories is obliged to respond by furnishing such
information as is available to the party. The party served therefore is
obliged to respond to the interrogatories not only by providing the
information it has, but also the information within its control or otherwise
obtainable by it.
FRCP 33(d)
Business option: if the burden of finding the answer to the interrogatory
would be substantially the same for both parties, party B (instead of finding
the answer herself) can simply give party A access to the business records
so she can find the answer.

o Interrogatories -In re Auction Houses Antitrust Litig. (co. didn't think they had info
and an old employee with a golden paruchute did)
Rule - An international company should be compelled to answer interrogatories,
despite its claims that the requested information is outside its control, if the
company still has plausible avenues for acquiring the requested information and
if other typical factors favoring compelling discovery from an international
litigant are present.

o Interrogatories -In re Convergent Technologies Sec. Litigation (judge went through
list of interagatory and said what could and couldn't be asked)
Rule - The pretrial discovery process should be self executing and have
minimum judicial intervention.


Physical and Mental examinations

FRCP 35 (always requires a court order / party only)
o When the mental or physical condition of a party is in controversy, the court may order the
party to submit to a physical or mental examination by a suitably licensed or certified
examiner.
Motion and good cause
Unlike all other forms of discovery, rule 35 operates only by court order. The
discovering party must make a motion upon notice to the party to be examined,
and must show good cause why the examination is needed (must be beyond
relevancy which is already established in FRCP rule 26.
Good cause balancing test = weighing the pain, danger, or intrusiveness of
the examination against the need for, or usefulness of, the information to be
gained.
Controversy
The physical or mental condition of the party must be in controversy. It is
not enough that the condition would be somehow relevant. A good cause for
the examination is needed.
3. Reports from examiner are discoverable
The actual medical report produced through a rule 35 examination is
discoverable (in contrast to the usual non discoverability of expert reports.
FRCP 35(b)(1)Who may receive: a person examined (typically the
opposing party) may request, from the party causing the exam to be made, a
copy of the examiners written report.
FRCP (35(b)(2) Other examinations: once the party asks for and receives
this report, then the other party is entitled to reports of any other
examinations made at the request of the examinee for the same condition.

o Schlagenhauf v. Holder (important) (bus rear ended a trailer tractor everyone sued
everybody)

Rule -

a. FRCP 35, the rule provides for physical and mental examinations of
parties, is applicable to defendants as well as plaintiffs
b. Under FRCP 35, although the person to be examined under the
rule must be a party to the action, he need not be an opposing
party vis a vis the movant.
c. Under FRCP 35, a person who moves for a mental or physical
examination of a party who has not asserted his mental or
physical condition either in support of or in defense of a claim,
must affirmatively show the condition sought to be examined Is
really in controversy and that good cause exists for the particular
examination requested.


Requests for admission (admit or deny discoverable matter)

FRCP 36
o One party may serve upon another party a written request for the admission, for the
purposes of the pending action only, of the truth of any discoverable matters.
Coverage: the statements whose genuiness may be requested include statements
or opinions of fact, the application of law to the fact, and the genuine of any
documents
Expenses for failure to admit: if a party fails to admit the truth of any matter
requested for admission under rule 36(a), and the party making the request
proves the truth of the matter at trial, the court may then require the party who
refused to admit to pay reasonable expenses sustained by the movant in proving
the matter (rule 37.C)
Affect at trial: if a party makes an admission under rule 36, the matter is
normally conclusively established at trial.

o Failing to respond: if a responding party fails to deny a request to admit, the matter is
deemed admitted.

Use of discovery results at trial

Request to produce
o The admissibility of documents and reports that were obtained through a rule 334
request to produce is determined without regard to the fact that these items were
obtained though discovery. These documents will thus be admissible unless their
contents constitute, prejudicial, hearsay, or other inadmissible material

Depositions :the admissibility of depositions is determined through a two-art test. Both
parts must be satisfied.
o Test 1
First, determine whether the deposition statement sought to be introduced would
be admissible if the deponent were giving live testimony. If not, the statement
is automatically inadmissible. (ex. Hearsay)
Test 2
Second, apply the four categories test. Since the use of a deposition statement
rather than live testimony is itself a form of hearsay, the deposition statement
must fall within one of the four following categories, which are in effect
exceptions to the hearsay rule:
FRCP 32(a)(2) - Adverse party : the deposition of an adverse party, or
of a director or officer of an adverse corporate party, may be admitted for
any purpose at all.
FRCP 32(a)(1) - impeachment: the deposition of any witness, party or
non-party, may be used to impeach the witness' credibility.
Adverse witness' deposition for substantive purposes: a party may use
a deposition of an adverse witness for substantive purposes, if it conflicts
with that witness' trial testimony. (P says "light was green", D says "light
was red")
FRCP 32(a)(4) - other circumstances" the deposition of any person
(party or non party) can be used for any purpose if one of the following
conditions, all relating to the witness' unavailability exists; (1) the
deponent is dead; (2) the deponent is located 100 or more miles from the
trial; (3) the deponent is too ill to testify; (4) the deponent is not
obtainable by subpoena or (5) there are exceptional circumstances that
make it desirable to dispense with the deponent's live testimony.
FRCP 32(a)(6) Partial offering: if only part of a deposition is offered into
evidence by one party, an adverse party may introduce any other parts of the
deposition which in fairness ought to be considered with the party introduced.
(ex. One side reads only part of an answer, the other side may read the rest of the
answer)

Interrogatories: the interrogatory answer of a party can be used by an adverse
party for any purpose.
Not binding: the statements made in interrogatories, like statements made in
depositions, are not binding upon the maker - he may contradict them in court.

Admissions: admissions obtained under the rule 36 conclusively establish the
matter admitted.

Physical and mental examinations: the results of physical and mental examinations
made under rule 35 are almost always admissible at trial.

Battle v. Memorial Hosp (dr. testiomony not allowed, and Dr. was out of state.
boy was hurt by hospital, mother sued everyone, hospital granted summary judgment)
Rule -
1. A trial judge should admit a video deposition as evidence at trial if the
witness is unavailable and the parties objecting to the video all had the
same motive for questioning the witness during the deposition that they
have for questioning him at trial
2. A trial court is well within its discretion to prohibit live testimony, in favor
of testimony by video deposition, if the witness is unavailable and the
offering party's own conduct caused the other side to incur the expense of
the witnesses testimony by video deposition.



Trial preparation immunity *will be on test*

o Definition - Certain immunity from discovery is given to the material prepared by
counsel for trail purposes, and to the opinions of experts that counsel has consulted
in trial preparation. This immunity is often referred to as work product immunity
o Govt. agencies - The work-product doctrine does apply in tax summons and other
administrative law proceedings.
o Waived - If A told B the privileged information, and B is not a party to the case
(friend, relative), then the immunity is waived.


o Qualified immunity: qualified immunity is given to documents prepared in
anticipation of litigation or for trial, by a party or that party's representative.
Representative defined: a party's representative include his attorney,
consultant, insurance company, and anybody working for any of these people
(including client).
FRCP 26(b)(3) Hardship: the privilege is qualified rather than absolute. This
means that the other side might be able to get discovery of the materials, by only
by showing substantial need of the materials in preparation of the case and an
inability to obtain the equivalent materials without undue hardship.

o Absolute immunity (Rule 26(b)(3)(b)): in addition to the qualified work product
immunity discussed above, there is also absolute immunity. Rule 26(b)(3)(b)
provides that even where a party has substantial need for materials (in other words, the
showing for qualified immunity has been made), the court shall protect against
disclosure of the mental impression, conclusions, opinions, or legal theories of an
attorney or other representative of a party concerning the litigation.
Attorney client privilege
ex. Oral materials per Upjohn case

o Hickman v. Taylor *big case* (tug boat wreck, survivors interviewed, P wanted all the
info provided by D's attorney)
Rule -

Material obtained by counsel in preparation for litigation is the
work product of the lawyer, and while such material is not protected by the
attorney-client privilege, it is not discoverable on mere demand without a
showing of necessity or justification.
FRCP 26(b)(3) is the rule created by the case (w/ exception of personal
thoughts not written down).

o Upjohn Co. v. United State (co. was bribing foreign officials for business. Co. started
in-hose interview w/transcripts, IRS wanted all that info)
Rule-
The attorney-client privilege extends to communications between a
corporations' attorneys and nonmanagerial corporate employees
FRCP 26(b)(3) applies to, and especially protects, notes of oral
statements by witnesses, and great need must be shown for their
disclosure.

Discovery concerning experts

o Experts to be called at trial: where on side expects to call an expert at trial, the
other side get extensive discovery
Identity: first, a party must automatically (without request) give
the other side a list identifying each expert who will be called at
trial
Report: second, a party who intends to call an expert at trial must
have the expert prepare and sign a report containing, among
other things (1) the expert's opinions, and the basis for them
(2)the data considered by the expert (3) any exhibits to be used by
the expert at trial (4)the experts qualifications (5) her
compensation and (6) the names of all other cases in which she
testified as an expert in the preceding 4 years.
Deposition: the expert who will be called at trial must also be made
available for deposition by the other side. See FRCP 26(a)(2)(A),
26(a)(2)(b), and 26(b)(4)
1. The protection afforded by Fed. R. Civ. P. 26(b)(3) (work
product) is subject to Fed. R. Civ. P. 26(b)(4), which
generally authorizes discovery of testifying expert witnesses.
Specifically, Fed. R. Civ. P. 26(b)(4) authorizes the
depositions of any person who has been identified as experts
whose opinions may be presented at trial.

o FRCP 26(b)(4)(B) Expert retained by counsel, but not to be called at trial:
where an expert have been retained by a party, but will not be called at trial,
discovery concerning that expert (her identity, knowledge and opinion may be
discovered only upon a showing of exceptional circumstances making it
impractical for the party seeking discovery to obtain the information by other
means.

3. Unretained experts not to be called at trial: where an expert is consulted by a
party, but not retained, and not to be called at trial, there is virtually no way the
other side can discover the identity or opinions of that expert.

4. Participants experts: a participant expert -- one who actually took part in the
transactions or occurrences that are part of the subject matter of the law suit -- is
treated like an ordinary witness. (ex. An arresting cop or pathologist --autopsy
guy)
a. Expert is a party: similarly, a party who is herself an expert (ex. A
doctor who is a defendant in a malpractice suit) is treated like an
ordinary witness for discovery purposes, not like an expert.

5. FRCP 26((e)(2) Duty to amend information: For an expert whose report must be
disclosed under Rule 26(a)(2)(B), the party's duty to supplement extends both to
information included in the report and to information given during the expert's
deposition.

o Krisa v. Equitable Life Assur. Soc'y (insurance denied money, so P wanted the info
that was given and produced by an expert, even though they didn't plan to use it at
trial)
Rule - Core work product generated by an attorney is shielded from discovery
even if disclosed to an expert.

Sanctions under discovery

o Cine Forty-Second Street Theatre Corp. v. Allied Artists Picture( laywer didn't answer
correctly all the discovery for four years)
Rule - A grossly negligent failure to obey an order compelling discovery is
sufficient to justify the severest disciplinary measures available under FRCP 37.

Summary judgment (distinct from failure to state a claim as noted earlier)

o FRCP 56 - If one party can show that there is no 'genuine issue of material fact' in the
lawsuit, and that she is 'entitled to judgment as a matter of law" se can win the case without
going to trial such a victory without a trial is called a "summary judgment"
Court goes behind pleadings: the court will go "behind the pleadings" in deciding a
summary judgment motion -- even if it appears from the pleadings that the parties are in
dispute, the motion may be granted if the movant can show that the disputed factual
issues presented by the pleadings are illusory
How shown: the movant can show the lack of a genuine issue by a number of means.
For example, the movant may produce affidavits, or use the fruits of discovery
(depositions, interrogatory answers) to show that there is no genuine issue of material
fact.
Burden of production: the person moving for summary judgment motion --
that is, the movant must come up with at least some affirmative evidence that
there is no genuine issue of material fact.
3. Opposition: the party opposing the summary judgment usually also submits affidavits,
depositions and other materials
a. If there is a question of facts still in question then the court should deny the
summary judgment.
FRCP 56(e) - Opponent can't rest on pleadings: if materials submitted by the
movant show that there is no genuine material issue of fact for trial, the non-
movant cannot avoid summary judgment merely by repeating his pleadings' denial
of the allegations made by the movant. In other words, the party opposing the
motion may not rest on restatements of her own pleadings, and must instead
present by affidavits or the fruits of discovery specific facts showing that there is
a genuine issue for trial.
Construction most favorable to non-movant: on the other hand, once the
opponent of the motion does submit opposing papers, he receives the benefit of
the doubt. All matters in the motion are constructed most favorably to the
party opposing the motion. The fact that the movant is extremely likely to win
at trial is not enough; only if there is no way, legally speaking, that the movant
can lose at trial, should the court grant summary judgment.
FRCP 54(b) Partial summary judgment: summary judgment may be granted
with respect to certain claims in a lawsuit even when it is not granted with respect to
all claims. This is called partial summary judgment.
a. Example: Court may grant P partial summary judgment on liability, but
will take the case to trial for the issue of damages.

o Lundeen v. Cordner (discovery information that the insurance money does go to the
decedents new family)
Rule - Where no genuine issue as to any material fact remains, the court may
grant summary judgment if the information presented would entitle one of the
parties to a directed verdict.