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CIV PRO CASES & ISSUES CAPSULE

SUBJECT ISSUE PRECE- FRCP TAKEAWAYS

DENT

Complaint -Minimum Conley • 8a2/ • Just “short, plain statement.” Allow complaint to survive
pleading 12b6 unless “no set of facts” can state a claim
standard
(Notice
• 8f • Purpose is to give notice to other party of claim & grounds.
Interpret complaint liberally to “do substantial justice”—give
pleading)
benefit of doubt to P
• Discovery allows for more specification, substantiation later
• Twombly threatens…
Complaint -Pleading too American • 8a2/ • Don’t plead too much—stick with literal Rule 8/Conley
much Nurses 12b6 • Can plead yourself out of court if stating facts/theories that
• Form don’t state a claim (subjecting you to 12b6)
9 • Test for sufficiency: Can a legal mind infer a theory based on
alleged facts?
• Allowance of just bare pleadings prudent in discrimination
claims b/c evidence of discrim often in hands of D—need
discovery
• (Twombly also)
Complaint -Heightened Leatherm • 8a2/ • No heightened pleading/factual specificity required for
pleading an 12b6 respondeat superior 1983 cases. Don’t have to plead more
standard in • 9b than single instance of misconduct
1983 cases
under
• Rule 8/Conley apply unless stating a 9b claim that requires
greater specificity. Respondeat superior not on 9b list, so
respondeat
superior expressio uniusn/a
theory?
Complaint -Heightened Schultea • 8a2/ • Plaintiff does have to plead more than conclusions and can be
pleading 12b6 required to engage the affirmative defense of qualified
standard in • 9b immunity at the pleading stage.
affirmative • Getting around SCOTUS’s 9b/Leatherman argument 
• 8c
defense cases affirming need for heightened standard, but invoking Rule 7
• 7a
(here, aff. def. Reply
= qualified
• Failure to initially plead with heightened standard is not fatal
immunity)?
to complaint (won’t be thrown out on 12b6), but court may
order a 7a reply to a QI affirmative defense.
-Reply
• Reply would have to give more evidence to chart out a legal
course, engaging allegations.
• More specific answers require more specific replies
• At court’s discretion, limited discovery—that pertinent to the
affirmative defense—may be allowed for purposes of the
reply.
• Compromise between interest in permitting liberal pleading &
interest in weeding out bad claims
Complaint -Heightened Securities • 9b • Tension: Legitimate anti-fraud interest vs. policy recognition
pleading fraud • 8a2/ that companies will settle strike suits if they pass motion to
standard under discussion 12b6 dismiss
9b (discussion (in book) • Heightened standard relaxed if defendant is only source of
of example info – may allow limited discovery before end of pleading
situation: • Some courts require pleading facts that give rise to strong
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securities inference of knowledge and intent/“scienter” (aspects of

fraud) fraud), which are hard to show (esp. without depositions).
Fraud unique because more than neutral facts needed to allege
it. Need to set context, show what was false and why, give
explanation. Extra facts needed to show that circumstances
were fraudulent, since fluctuating nature of interrelationship
of knowledge, condition, intent and ethics is unique in
securities and depends on moment.
• Other courts: no H.S. under current law. If policy is to be
changed, then Congress should change the law.
• Private Securities Litigation Reform Act of 1995 established
this heightened standard for securities litigation – need to be
able to strongly infer state of mind. Still different
interpretations…
• Emerging consensus: Alleging bad intents not sufficient;
showing material departure from accepted practices is
sufficient. The extra, costly burden on plaintiffs—since more
investigation needed before pleading—tends to restrict
litigation to fraud allegations where gov or third parties
already revealing fraud. quasi-revival of writs?
Complaint -Heightened Twombly • 8a2/ • Enough factual matter must be presented in the complaint as
pleading 12b6 to raise a reasonable expectation that something illegal
standard (here, • 9b occurred. When appearance may be same for both legal and
an anti-trust illegal activity (e.g., conspiracy—here, Matsushita—or
• (11)
case) discrimination—American Nurses), must show more than that
• (15/7)
parallel conduct.
-“Plausible”
vs. “possible”
• Conclusory, formulaic recitations of the elements of cause of
action are insufficient in such cases (at odds with Conley!)
-(Pleading • Conley should be interpreted as describing the breadth of
both too much opportunity to prove what an adequate complaint claims, not
& not the minimum standard of adequate pleading to govern a
enough?) complaint’s survival. “No set of facts” is out of touch.
• Dissent on application here:
• The complaint clearly alleges illegal agreements—not just
parallel conduct—in three places, and in considering motions
to dismiss, the court must assume that all allegations are true.
Majority circumvents that requirement by differentiating
between allegations that must be assumed as true, and
conclusory statements resting on prior allegations of parallel
conduct. This technicality resembles code pleading, which
was abolished in 1938 with the Rules.“Defendants entered
into a contract” is less conclusory than “defendant negligently
drove,” which is standard Rules example
• Rule 9b calls for particularized pleading for fraud…but this is
not a fraud case. What about expressio unius?
• Dissent on policy:
• Interest in weeding out “strike suits”…but argument that anti-
trust claims should have quite a minimum standard b/c D
possesses all the evidence? Weren’t the Rules created to
promote litigation and get suits to trial, unlike old systems of
writs and codes that impeded the bringing of justice due to
procedural technicalities? Decision doesn’t seem consistent
with the spirit of the Rules (or Conley). Doubts about the
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precedent are new to the Supreme Court. A majority of states

recognize the Conley formulation as their state standard, and
the nation’s civil procedure texts are founded on it. If Rules—
which are so clearly stated—need to be changed, then
Congress—which established the system for making the
Rules, invested them with power, and set forth a system for
revision—should be the entity to change them, not the Court.
• Admittedly some “strike suits” would be brought forth just to
get settlement money; this is unfortunate, and bad and unfair
for corporations. Yet it is not as though no barriers exist for
such suits. Discovery is costly for the defendant as well as the
plaintiff—and in this case the defendants, billion-dollar
corporations, can probably shoulder the financial burden of
discovery (insignificant considering their already-incurred
legal and other fees, anyway) better than plaintiffs. The
defendants in antitrust cases hold most of the potential proof
of wrongdoing in their own hands. How can plaintiffs set
forth greater detail in pleadings without some discovery? One
could argue that the opposite logic should be employed in
antitrust cases: an even lesser standard of factual presentation
should be required at pleadings. At least allow some limited,
directed discovery. This would give plaintiffs a chance to do
depositions and would not be unduly burdensome on
defendants. Don’t throw out baby with bathwater up front at
pleading. A variety of Rules/tools (12, 7, 11, 16) exist for the
trial court to manage cases on a case-by-case basis.
• P’s couldn’t include allegation of illegal agreement, ethically
and under Rule 11, if they didn’t have evidence for it (even
though this might have got their case past pleading). But if
defendant controls this info, how can they get there?
Dangerously close to saying: if no smoking gun at pleading,
no chance to get it in discovery (have to have won case before
starting…)
• Also, no need to ramp up 12b6 b/c we have Rule 11 as guard
• (Pleading too much—saying agreements inferable from
parallel conduct, rather than just alleging agreements—like
American Nurses? Yet under Twombly, even if alleging
explicit conspiratorial agreements, would still have to allege
more facts to support…)
• (Grant leave to amend or reply instead of 12b6?)
Complaint Pleading in the McCor- • 8d2 • Pleading of alternative theories is legal/appropriate in certain
alternative mick cases. This case is one of them
• Allowing facts to be hashed out during trial; no need to have
firm grasp at pleading.
• At odds with Twombly? This case recognizes that facts can’t
always be known up front, whereas Twombly requires more
facts known at pleading.
-Answer -Presenting Fuentes • Proof confined to disputed issues in case. This is part of the
evidence to purpose of pleading: to pinpoint what needs to be hashed out.
-Evidence jury showing Presenting evidence redundant to admittance is inefficient and
at Trial circumstance wasteful—only permissible when damages depend on
around circumstance
-Damages liability even • Evidence around admitted/undisputed facts in cases where
though D
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admitted admittance was clear and unconditional, and where damages

liability (so as are calculated by formula unrelated to circumstance, cannot
to influence be presented (as here)
damages) • Protects against judging more harshly against more grossly
negligent defendants.
(-presenting • Presentation permitted when evidence is legally
evidence relevant/material to the issue of damages; or when admission
around is ambiguous or limited, done when party seeks to deprive
undisputed plaintiff of force and effect of evidence
facts) • Trial court erred in allowing evidence…but result was
reasonable, so it stands.
• Concurrence: Evidence should be presented: greater
negligence should yield greater damages—which it likely
would, practically speaking—nevermind formulas supposed
to be followed
Answer Addressing Zielinski • 8b • Answers must precisely address specific allegations, admitting
specific • 8d or denying each component.
allegations of • (11) • Improper and ineffective answers are reported to jury as
complaint admission of agency after a certain time for amendment
(particularity) expires.
vs. categorical
• Doctrine of equitable estoppel applied to prevent a party from
answers
taking advantage of the statute of limitations where the
plaintiff has been misled by that part.
• Court thought plaintiff would have interpreted PPI’s answer
as denying the negligence rather than the fact that Johnson
worked for them
• Prevent parties from taking advantage of confusion or errors,
occurring before pleading, which they know will result in
plaintiff being misled.
• In general, harsh applications of 8b avoided, so 8d applied
sparingly. However, if departures from 8b mislead adversary,
then may be treated as admissions.
• (Do research before pleading—don’t be sloppy)
Answer / Affirmative Gomez • 8c • Qualified immunity is an affirmative defense, so under 8c the
Motion to defense— • 12b6 defendant has the burden of pleading it in answer. (Is this
Dismiss In 1983 suit, precedent or was it just dicta?)
requirement
that P must
• Nothing in 1983 suggests that a plaintiff must allege bad faith
in stating a claim. Only 2 requirements, both satisfied here: (a)
allege bad
some federal right deprived; (b) person acted under color of
faith in
law
compliant in
order to state a • QI irrelevant to cause of action; it is a defense. So 8(c) puts
claim; or must burden of pleading on defendant.
D plead good • P can’t anticipate what defense will be. D may not even claim
faith as QI…how is P to know?
affirmative
defense?
-Answer Affirmative Ingraham • 8c • Defining affirmative defense: 8c: “…any other matter
defense— • 60b constituting an avoidance…” Clark: “likely to take the
-Relief Retroactively opposite party by surprise.” Defendant shouldn’t be allowed
from raising Statue to ambush plaintiff—everything should be out in the open for
(erroneous) of Limitations preparations.
judgment to limit
liability after
• Was it intrinsic to plaintiff’s complaint? (then no need to
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judgment has reassert) Who had better access to evidence? (if defendant,
been passed then need to plead) Policy favoring one side?
for damages • 8c requires pleading affirmative defenses in answer or
above the amendment. Even OK at trial if not resulting in unfairness b/c
limit… plaintiffs can still respond/change strategy.
required to • Here, citing Act to limit damages is an “avoidance” as in 8c.
raise as Referring to Black’s definition, it shows why cause should not
affirmative have its ordinary legal effect. Had plaintiffs known, they
defense at would have tried case differently, not under ordinary tort
pleading? malpractice—would have emphasized future expenses relating
to injury (incl. psychological care). Plaintiffs ambushed, then,
to some extent.
• So, from 8c, if not pleaded timely, waived
• (No expressio unius in 8c b/c wording is “including” and
“other things”)
Amend- Standard for Barcume • 15c • Rule 15c: If amendment arises out of same conduct,
ment an amended transaction or occurrence, it relates back. Allows for
pleading correcting technical deficiencies; expanding/modifying as
“relating back” things found out/changed during procedure. Efficient. Greater
vis-à-vis particularity and detail of original relates back
statute of
limitations
• If amendment is based in substantially different facts
(conduct, etc.) it does not relat back. Prevents other party from
getting blindsided. If new claim rests on different facts, does
not relate back
• If new legal theory, it depends…
• P’s reason that in discovery, defendant should have found out
that harassment, hostile environment were there—that they
knew, so no prejudice in discovery. But not just about
knowledge; about legal preparation and anticipation for one’s
defense. Can’t dictate what defendant should have known.
• Court says “so what?”—in line with doctrine of repose. Why
do we have a statute of limitations? Facts get “stale” Repose
—we don’t want people feeling guilty for the rest of their
lives. Wrongness fades if accepted for a long period of time
(exception of murder).
• Agree with principle and correct application of law here.
Practically, however, was some injustice done? Was it just a
technicality that prohibited valid claims from being heard?
• Incentive to plead more broadly so amendments will relate
back…but then have to worry about American
Nurses/pleading self out of court
Amend- Post-judgment Nelson • 15 • Nelson’s right to due process—to contest charges brought
ment amendment of • 59e against him—was violated by the post-judgment amendment.
pleading • Rule 15’s req’s for amended and supplemental pleadings were
violating a not met. Was never served with complaint/amendment in the
third party’s charge against him in his personal capacity. Not given his 10
due process of days to state his defenses against personal liability. Judgment
Rule 15 by not entered against new party without allowing him to defend
allowing third himself. Violation of fundamental tenet of our legal system.
party to
• Couldn’t argue his case on appeal because appeals court
respond to
doesn’t allow defendant opportunity to defend issue of
charges
liability (appeals court doesn’t hear facts)—just reviewing
against him
whether amendment was property.
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• Reasoning that ruling would have been the same against

Nelson as it was against OCP, since they were effectively the
same entity and no new defenses could be presented by
Nelson to change verdict. Spirit of Rules not violated, so
fudging proper procedure OK…Court says NO! The court is
not free to decide hypothetical cases and shun actual specified
procedure—that’s why the Rules exist.
• Nelson may indeed be liable, but he should be given his right
to defend himself at least. Follow the Rules!
Pleading Basing claim Fragrante • 11 • (Accent discrimination case under Title VII. Ultimate holding:
Sanctions on theory that / Perfume no discrimination here—legit concern about speech—but
extends theoretically could be. No Rule 11 bad faith in pleading
modifies or sanctions.)
reverses • “Bad pleadings” = no reasonable inquiry to see if pleading
existing law well grounded in fact & supported by law or good faith
(good faith) extension, modification or reversal; meant to delay or squeeze
out settlement
Pleading Standard of Business • 11 • BG accountable for insufficient prefiling inquiry—had time,
Sanctions reasonable Guides resources.
prefiling
inquiry
• Attorneys not to be held accountable for not inquiring behind
1st affidavit submission because there was an urgent need for
the TRO (was there really?) and “sophisticated corporate
client” seemed trustworthy.
• Both accountable for not inquiring after accuracy of seeds first
called into question
• Parties and lawyers must meet an objective standard of
inquiry. A signature on a legal document denotes merit and is
not meaningless.
Pleading Extent to Kraemer • 11 • Lawyers that have a legal theory and, in terms of facts, do all
sanctions which lawyer • (52b) they can to confirm but need discovery as a fact-finding/-
must confirm confirming tool, are on good grounds. Attorneys can’t be
factual basis of required to prove their case before even filing suit!
clients
complaint
• No legal problem with Lawton’s claim if alleged facts were
established. Claim failed not because of failure to state a claim
(that’s why it survived 12b6) but because discovery didn’t
provide enough to prove state action. With regards to facts
(having put forth a legitimate legal theory), his inquiry was
reasonable because he hired a PI, and the PI was impeded by
hostile, evasive parents; and evidence in hands of other party.
• In conspiracy cases, evidence usually in hands of defendants,
so P’s need the tool of discovery to get facts. If discovery
necessary to establish a claim, then not unreasonable to file
complaints to obtain the right to get discovery/coercive power
of court
• Pre-/post-Twombly: survival of 12b6 as a proper test for Rule
11 inquiring efforts?
• Allowing discovery as a tool to get facts  back to debate
about heightened standard
Pleading -Sanctions for Saltany v. • 11 • Pleading a hopeless case was a violation. Degree of injury is
Sanctions pleading a Reagan relevant to Rule 11 violation. So (before 1993), if violation
“hopeless” found, sanctions mandatory.
case? • Plaintiffs may not have been familiar with US law/procedure,
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but their counsel was—knew that suit was hopeless.

-Court as a • Seriousness of the injuries over which the plaintiffs are suing
proper place is irrelevant.
for political • Whether claim was “audacious” or “frivolous,” still without
statement/pro- legal foundation, so 11 violation. (“Frivolous” same as
test? “hopeless”?)
-Punitive • Federal court is not the proper place for protests. Hurts other
function parties that have legally recognizable claims by wasting
court’s time.
• Rule 11 as a punitive mechanism to prevent abuse of court
system for political motives
Pleading -Cooter as Saltany v. • 11 • Majority: Cooter inapplicable, so appeal is without
sanctions intervening Bush foundation. Lower decision affirmed.
law?: To what
extend should
• But DISSENT: “Law of the case” (looser than stare decisis)
allows courts to take different direction from previous
plaintiff’s
decisions in exceptional circumstances: where previous
subjective
decision was erroneous; where sticking with precedent would
opinion of
do grave injustice.
hopelessness/
optimism in • Cooter satisfied this exceptional condition because it
the case represented an intervening change in law. Cooter established
matter? “clearly erroneous” review standard for Rule 11 sanctions.
That is, appellate courts must give deference to lower courts
-Law of the in fact-finding elements. Reagan panel didn’t properly rule
case allowing that district judge had ruled on factual predicates of 11 but had
for different erred in applying the law. District judge had found that case
direction from was hopeless (and that was known to P’s)…but hopelessness
previous was NOT a criterion listed under 11
decisions in • 11’s criteria: not well grounded in fact; not supported by law
exceptional or good faith extension/modification/reversal; not meant to
circumstances harass, delay or induce settlement or other improper
…applicable purposes…
here? • Court must have interpreted the bringing of a hopeless suit as
either harassment, meaning to bring expense on def., or some
other “improper purpose.” Is a public protest of a
controversial issue an improper purpose? Because not proper
forum? (Where else could these Libyans have significantly
expressed their protest if not in court?)
• Who decides what is “hopeless” anyway? Many cases seem
certain one way and turn out another. And P’s expenditure of
time & $$ suggest it did not seem hopeless to them—
shouldn’t this matter?
• Good faith in extension was there in bringing suit. Violation
should not depend on degree of optimism in that extension…
• Reaching beyond district judge’s discretion will have chilling
effect on future suits
• There IS value in “hopeless” cases that “push” the law
Pleading Application of Franz • 11 • Rule 11 violation depends on what one party does, not on how
Sanctions Rule 11 to the efficiently other side reacts.
pleading of • 11 sanctions can be in order even if proper form is there. Each
facts & charge must be able to stand on its own.
theories: • Knowing facts is the issue in Rule 11, not the pleading of
them (that’s Rules 8/12)
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-Insufficient • Suit against Cotter was frivolous because of immediate

facts meaning precedent (Copperweld) barring a theory of conspiracy
violation? between corporate board and its own board member/president.
-Pleading one So there was a sanction necessary in Cotter’s case (pre-1993)
legit theory … What mattered was plaintiffs’ frivolous pleading—that was
gets others off violation—which is not negated due to inefficiency by
the hook? defendants in dealing with it. 40 hours not unreasonable in
this defense, anyway (what was suspect was the time it took to
bill…) No single right sanction amount—lower court must
reconsider and decide on something.
• Lower court said no Rule 11 for USPF because at least some
facts were there for the 7 charges, even though they were
largely conclusory. Two erroneous points/assumptions by
lower court: 1) If a complaint contains a formally correct legal
theory, then Rule 11 obligation satisfied. WRONG—claim
can be sufficient in form but still subject to 11 sanction (e.g.,
if no reasonable inquiry). ALSO, one all-around valid claim
does not validate other unsubstantiated claims as riders. Rule
18a permits joinder; but each must have own valid foundation.
2) Sanctionability of complaint is related to sufficiency of
pleaded facts. WRONG—that is the territory of Rules 8 & 12.
11 is just about proper knowing of facts before pleading—
doesn’t affect “notice pleading” at all.
• What if present court thought Copperweld was wrong? Then
no Rule 11? More plausible if precedent was a close decision?
Or should frivolousness be measured by degree of consensus
in earlier cases? Also, political developments definitely seem
relevant to frivolousness—in the sense of plausibility of
extension/modification/reversal—since new judges make a
difference…or since national circumstances might affect
context.
-Pleading -Moving for Committe • 11 • PJ defense waived because not raised at proper time
Sanctions summary • 12h1 • Defendant sanctionable under Rule 11 for not having known
judgment A 12b2/PJ procedure
-Timely sanctionable • 12b6 • Personal jurisdiction defense waivable (personal right from
Pleadings under Rule 11,
Due Process Clause). 12h1A: personal jurisdiction defense
(Estoppel given
waived if party makes a Rule 12 motion but fails to raise the
from procedural
defense in the initial motion. Defendant pleaded affirmative
asserting waiver?
defense of PJ in answer to amended complaint, but not in
affirmative (didn’t raise
previous 12b6 motion…so that defense waived under 12h1A
defense affirmative
• Rule 11 violated because no competent inquiry about whether
when defense of no
summary judgment motion could stand, given it had been
failing to personal
waived under 12h1A
raise) jurisd. at
pleading) • Pro se plaintiffs can’t collect attorney’s fees in civil rights
cases (SC wanting to encourage parties to retain cousel), but
-Can pro se YES for Rule 11 violations because purpose is deterrence.
parties collect • Rule 11: attorneys fees just part of expenses. Pro se parties
under Rule 11? can get other costs, like filing fees, etc.
• Rules must be followed strictly even if intricate—know them
well! Judicial efficiency: here, don’t get into process and then
go back and say it was invalid from the outset
• Procedural requirements apparently clear enough to warrant
Rule 11 sanctions—BUT could be different under 1993’s
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“safe harbor” amendment

Sanctions -Inherent NASCO • 11 • Court has inherent power to sanction beyond/between Rules
power of the • (38) & statutes when those rules insufficient to sanction the bad
court, beyond faith conduct of parties
that of the • Inherent power not to be abused; not a reservoir of power…
Rules, to but many traditions and precedents acknowledge various
sanction for inherent powers of court. Appropriate when fraud practiced
bad faith/ upon the court
misconduct
• Neither 11 nor 1927 limit a court’s inherent authority when
-Limits of conduct not within reach of rule/statute. These are not
Rule 11; when legislative attempts to curb court’s power.
appropriate to • Inherent power requires restraint & discretion—but
reach beyond... dismissing a case outright has been upheld as within scope, so
(do Rules limit certainly sanctions—less grave—OK, too
or just provide • Court should look first to rules, but if inadequate, may invoke
guidelines/fou power. Rule 11 not a limit, just a baseline for one type of
ndations that sanction. If sanctionable, not necessary to procedurally go
can be through all available rules first and then invoke inherent
surpassed?) power; that would cause wasteful litigation, which is against
spirit of rules. Rather, can go straight to inherent power
• Dissent:Slippery slope extension of fed ct’s power. Legal
limits obscured: courts free to ignore textual limitations on
sanctioning power, just rely on inherent authority. Basic
violation of due process: people don’t know what law is/limits
of court are. Unchecked power  chilling effect on advocacy
• Political theory critique: being skeptical that judiciary has any
inherent power? Power given by legislation? Constitution
doesn’t give inherent power expressly… But judiciary reading
it into existence of courts? Common law/tradition controlling
—universal acknowledgment giving legitimacy(?). Functional
argument: courts have to be able to control their procedures.
Some inherent power is, by definition, quintessential to a
court—implied by mere creation of judiciary by Constitution
• Potential limits on between-cracks inherent power:
Legislation stepping in; 5th Am/due process requirements;
appellate review
Service Sufficiency of Greene •4 • In this context, in light of alternatives (mail), posting on door
service for due was not sufficiently reliable. Due process was violated.
process—
likely to give
• Mullane—Minimum service standard: “fundamental
requirement of due process…notice reasonably calculated,
notice? (here,
under all the circumstances, to apprise interested parties of the
posting notice
pendency of the action…”
on door versus
mailing) • Usually, door-posting sound (reasonable to assume resident
will check often, and the more interest they have in property
and avoiding penalties, more likely) but here, no
• Evidence that postings often removed, so not reliable. Still,
must be weighed against alternatives—better ones? Posting
was not a last resort No 2nd attempt at personal service?
• Dissent: Preference of mail = unwarranted. No evidence to
support mail as better—only scant testimony in this case to
show posting unreasonable. Not recognizing posting
undermines KY statute designed for special circumstances of
 10

tenant/landlord relationship. Mail has its own risks: lost, slow,

etc. (at least posting gets it to door…)
Service -Actual notice Khashoggi •4 • Actual notice NOT necessary. Maid could properly receive
required? • (60) under Rule 4. Can’t escape justice by physically evading
service. Server’s right to due process affirmed, too
-Defining • Dwelling doesn’t have to be sole residence. Can have multiple
dwelling/usual abodes if sufficient indicia of permanence
place of
abode… • Unclear in this case whether service would have been
sufficient had Khashoggi not been there at the time…
Service -Can a court Mid- •4 • Bright line rule: Strict compliance with language of Rules
fashion its own Continent • (12b5 • Actual notice insufficient if improper service
Rule 4 service Wood )
sufficiency Products • Exception only if substantial compliance and only a
• (60) technicality prevents (United Food, 9th Circ)…but here
exemption?
compliance by serving party was lacking.
-Actual notice • No clear-cut evasion by Harris, either. Bad behavior, but due
sufficient? process concern prevailing.
• 6 yrs prior, before default judgment, Harris could have raised
12b5 (showing up wouldn’t have conceded service)
• No Stat of Lim b/c clock doesn’t start until service…and
never properly served
Service Validity of Wyman •4 • In this case*—when person being served is of and in another
service when jurisdiction—no, can’t fraudulently entice them to come
procured
fraudulently?
• *ANACRHONISTIC: Though service of process is necessary
(but not sufficient) to establish personal jurisdiction, today the
person doesn’t have to be in/come to a state to serve/get
jurisdiction.
• Does it matter that diff states? Fraudulent luring OK if lured
within own state, generally. Courts sympathetic to efforts to
serve elusive defendants.
-Remedies: -Extent to Walker • 65 • Despite questionable constitutionality of ordinance,
Injunction which can demonstrators had legal duty to obey injunction. Should have
(TRO) people bypass sought remedy through court system
legal • For granting of TRO, needing to show: 1) substantial
-Deciding procedure, likelihood of success on merits (legal claim has good chance
legality/ overrule in case); 2) urgent, irreparable harm; 3) balance of hardships
constitution law/court, if in favor of party seeking relief.
ality they deem law/
application • Howat: in antistrike injunction, even if exercise of power was
unconstitution erroneous, the injunction not void. Precluded from attacking
al… (Later injunction in collateral proceeding. It is for court to determine
consequences? law’s validity; until it does so, order binding.
) • Demonstrators did not attempt to comply with mandates of
ordinance, which would have shown more discrimination and
-Criteria for perhaps justify disobedience of injunction more. Nor did they
TRO challenge the court order, which was the legal way to
challenge—might have dissolved or modified order.
Ordinance/order not so blatantly unconstitutional as to be
“void on its face”
• Question of deciding legality/constitutionality of
laws/injunctions for oneself… Majority says court will decide;
people not free to bypass legal process. Reinforcing supreme
power of court & its orders. Obeying the law should be strict
 11

—in issuing, following, reviewing. Uniform application to

civil rights marchers and white supremacists alike. 1st
Am/indiv rights overshadowed by law/order preeminence.
Separating strict application of law, from merits of parties (no
diff rights: marchers vs. KKK)
• DISSENT: A permit would never have been granted
(injunction would not have sought injunction if they had intent
of granting one). Demonstrators trying to sue first, follow
procedure, would have been futile (no chance to win/get
ordinance), as evidenced by Bull Connor.
• Unconstitutional ordinance because gives unfettered
discretion to officials to suspend 1st Am rights. Lovell: Clearly
unconstitutional injunction—based on ordinance
unconstitutional “on its face”—is violable. If you have to go
through steps to get legal permission to violate clearly illegal
law—esp. in case of 1st Am—then no point in having basic
rights of guarantees.
• Ex parte injunctions never favored except when reasonably
necessary to enable court to decide an underlying controversy
of importance before it… Circuit court in AL not doing that
here—just adding judicial signature to preexisting criminal
ordinance. Since law in place, getting injunction could serve
no purpose except to be able to punish demonstrators with
contempt charges in addition to ordinance violation, and also
thus to immunize the unconstitutional statute/application from
any attack.
• Some cases have required that to challenge constitutionality
one must first violate it to establish standing to sue… No
disrespect to law, to violate law then submit to judicial system
to willingly accept penalty if statute held valid. Higher respect
for law if disobeying unjust law? Law not the same as justice
—certainly not the same as morality.
• Majority implying that demonstrators would have been free to
violate court order if they had motioned to have it dissolved
first (but had failed)?
• A central divergence of majority/dissent: How to know
whether a statute—and an injunction based on it—is
unconstitutional before trial? Can’t: depends on what court
says; have to go with feeling. Majority says not obvious; have
to follow court’s ruling until court overturns law, lest
lawlessness run rampant. Dissent says sufficiently obviously
unconstitutional as to permit ignoring.
• Compare w/Martin v. Wilks—obeying court order even if
maybe illegal?
Remedies: Contempt Terry • 65 • New contempt sanctions, with opportunity to purge, were
Injunction sanctions for coercive and therefore civil and valid
violating • Civil contempt meant for coercion & compensation; criminal
injunctions: meant for punishment & vindication of court. Civil contemnor
Criminal or “carries keys of his prison in his pocket.” Sanctions more
civil? Coercive likely criminal if (1) not calibrated to actual damages; (2)
or punitive? payable to state, not party; (3) extremely large
• Bagwell: Non-compensatory fine is civil and may be imposed
even without a criminal trial if given opportunity to purge.
 12

Mine Workers: civil and purgeable when imposed and

suspended pending future compliance. Fines w/out purg
provision are criminal because emphasis on punishment, not
reform. Calibration of damages to injuries, and who collects,
are irrelevant given purge provision. Fines not excessively
large. Letter of Affirmation not punitive b/c not an admission
of wrongdoing; rather just objective statement about contempt
and intent to abide
• Courts keep authority to quickly/unilaterally issue injunctions
and find contempt without violating due process by allowing
defendants to purge. Emphasis on coercion/reform.
• Why distinction of criminal/civil matters: More due process in
criminal; Opportunity to purge in civil; Different standard
important: “beyond reasonable doubt” vs. “preponderance of
evidence”; Right to jury trial usually in criminal, rarer in civil;
No self-incrimination immunity in civil; Right to counsel in
criminal context
Remedies: Deciding Bush v. • (com- • Majority: Irreparable harm was posed by order to Bush:
Injunction stays: Here, Gore mon Recount would undermine legitimacy of his presidency.
sufficiently law) Recounting ballots could degrade accuracy.
likely that
following
• Dissent: No substantial likelihood of success shown: Counting
ballots not irreparable harm. A stay, on the other hand, is
court order (to
tantamount on decision on merits in favor of applicant. Thus
recount) would
legitimacy undermined for whole election
cause
irreparable • Different standard presented in dissent: “substantial showing
harm? of a likelihood of irreparable harm” (rather than success on
“Balance of merits)—confusion, or melding of two standards? That
hardships”? standard would be lower…
• Incredible amount of discretion in applying test for stay
(similar to injunction). Effectively gives election to Bush.
Remedies: -Damages an Walgreen • (65?) • In cost/benefit of damages vs. injunction in these
Injunction inadequate circumstances, injunction reasonable enough not to reverse
vs. remedy at law, decision of trial court, which should be given deference.
Damages such that • Damages are norm in breaches; injunctions only when
injunction was damages inadequate. Difference between “inadequate
necessary? remedy” and “irreparable harm” emphasized.
-Higher • Striking a balance of costs/benefits: Job of trial court, given
standard for factual basis. Plaintiff seeking injunction has burden of
injunction as persuasion. If permanent injunction sought, must only show
final remedy that damages inadequate, not that denial of injunction of will
(not just cause irreparable harm. If cost/ben balance equally, then give
temporary)? damages by default
Irreparable • Benefits of inj: Shifts burden of determining cost from courts
harm not the to parties. Free market determination = cheaper, more
standard? accurate than court-imposed. Let them bargain over how
much injunction (enforcement) is worth to them…
(-Law & • Costs of inj: Supervision. Bilateral monopoly: parties locked
economics/ into negotiating w/each other…lack of alternatives can make
Posner) transaction costs high. May be breakdown in negotiations as
parties bargain over price of injunction.
• Ben/costs of money damages are mirror image…
• Trial judge had reasonable approach, so deference  affirm
 13

• Posner’s economic emphasis: Looks more at balancing

cost/benefits with judicial resources (even society) in mind,
not just between the parties. Aggregate good is considered
beyond party-party relationship. Should third party interests
be relevant?

-Discovery -Failure to Chalick • 26a • Defendants violated 26a, so sanction necessary. D not allowed
voluntarily • 15c to invoke Stat of Lim, since that’s meant to protect against
-Amend- disclose • 37c1 unfair notice, and here not unfair because improper notice was
ment • 16 caused by D’s own misleading
-Relate back
claims;
• D’s argue no notice and no reason to know (Rule 15). 15c: To
relate back, amendment must; arise out of same operation—
equitable
satisfied; not prejudiced—satisfied (really?); and should have
estoppel from
known he was concerned and not named only due to mistake
raising stat. of
—satisfied, since should have been aware of lawsuit
lim. Defense
• 26a1a: Defendants obligated to provide not just names of
-Receiving knowledgeable parties but also basis of his knowledge (and
notice as not to contact info). 1990 amend. make 26a disclosure voluntary
be prejudiced • 37c1: Since voluntary, threat of gamesmanship, so if 26a
by amendment violated, sanctions are mandatory unless justification/no harm
• No justification for not disclosing. Harm done to P. Also hurts
court: impedes efficiency; delays decision of case on merits
Discovery -Discover- Sullivan • 26b1 • Rule 26: though inadmissible itself, possibly helpful to
ability of info & • 26g3 claim/case because establishes background environment (vis-
(through Cromwell • 37a3 à-vis discrimination), may identify persons of interest to
interrog.) not depose, may induce settlement through hassle/embarrassment.
directly • Allowing other evidence to round out case, get leads
relevant but • Discovery not just about evidence, also about leverage.
perhaps
Inducing settlement. Embarrassment, time, resources, etc.
leading to
admissible • Court may or may not sanction for resisting interrogatories
evidence
-Discovery -Deciding Rozier • 26b1 • Interrog & court order not limited to specific model. If in
relevance of • 60b3 doubt of relevance, Ford should have sought ruling by court
-New Trial/ documents
Relief from
• Given relevance, failure to produce hurt P’s case. Couldn’t
show pre-production negligence; but report about later,
Faulty -Producing
 14

Judgment documents in similar model could have shown that Ford aware of defects
complex and yet didn’t inform
organization • 26b1: inadmissible evidence still discoverable if reasonably
calculated to lead to discovery of admissible evidence
• Liberal discovery rules so case about merits, not bluffing.
Emphasizing “fairness” of discovery process
• Ford prob didn’t make conscious decision not to produce
document—more due to organizational failure with big parties
Discovery Work product Hickman • (26b3 • Atty-client priv = narrowly interpreted. Not protected in these
protection: ) circumstances, just between atty & client—not 3rd party
Extent to interactions & other materials. A broad interpretation could
which party give corporate defendants the advantage of a large cloak of
can discover privilege…though can’t argue it one-way
other counsel’s • Here, not an ordinary request for relevant, non-priv info—
taken Asking for reproduction of things available on record or
statements otherwise attainable by requestor. No reason to suspect
from witnesses dishonesty from public testimony.
& similar info
in its research • No necessity shown—not showing why it wouldn’t cause
hardship/injustice. Just being material & non-private is not
enough. Not part of Rule 26* but prohibited by Rule 26 but
prohibited by underlying policy of court/adversary system:
Can’t, without justification, just obtain adversary’s materials
& interpretations! (*ANACHRONISTIC: SEE MODERN
26B3) Forcing an adversary to recount witness interviews
would lead to inaccuracy, bias, fear of lowered prof standards
• Not all adversary’s materials protected from discovery—dep.
on circumstances (how necessary, difficult to procure)
Discovery Work product Adlman • 26b3 • Now the majority view: Broad—protects nearly all business
protection (squib— anticipates litigation. Not just documents prepared to aid in
2nd Circ the conduct of litigation—much less just primarily or
1998) exclusively to aid—but rather extending to documents
prepared because of litigation
• DC Circ. even broader: Motive-based test: any product
prepared where actual (subjective) and reasonable (objective)
belief that litigation a real possibility
• Some dissenters reasoning that narrow interpretation of 26b3
could lead to silencing of attorneys & their communication;
chilling of representation; causing ineffective/inefficient
advocacy & lawyering
Discovery Atty-client Upjohn • 26 • Atty-client priv acknowledged as sacred. Does apply to
privilege & corporations—not just to execs, but to all members acting in
work product context of employment, since 2-way street: atty needs
protect for privilege, too! Lower-level employees can still have effect on
corporations proceedings. Communications between employees & counsel
are in atty-client context, so priv
• No “zone of silence” policy concerns b/c adversary in no
worse position than if communication had never occurred
• In privilege, facts are not shielded, just communications.
Facts can still be gotten through depositions, etc.
• So how about memos, beyond responses to questions? Work
product doctrine: Sufficient showing necessary to overcome?
Hickman saying work product not absolute…maybe OK then
 15

if interviews too hard to reobtain. But notes & memos

somewhat sacred b/c revealing atty’s mental processes
• Court not articulating work product standard, but in this case
not sufficiently necessary to overcome (or at least hasn’t been
shown yet
Discovery Opinion work Squibs: • 26b3 • Holmgren: Opinion work prod not absolute—can show need
product see right to overcome. E.g., if mental impressions are at issue, as in
privilege  fraud case, then material (like in Twombly)
• Duplan: Opinions of attys “in anticipation of litigation”
protected by 26b3 & reading of Hickman protecting atty
though processes. Justice over truth.
• First Federal Savings: Agent between atty & client is part of
privilege as long as acting as a medium in legal context.
Waived if shared for/in non-legal purposes/context
Summary Burden to Adickes • 56c/e • Can’t just give sweeping, conclusory denial. Moving party has
Judgment show absence burden—doesn’t shift to non-movant until movant shifts it
of genuine over by showing absence of genuine fact. Non-movant
issue of fact: doesn’t have to produce anything in response if motion didn’t
meet SJ standard. Material must be viewed most favorable to
-What non-movant. Here, failed to foreclose possibility  question
standard/how for fact-finder
conclusory
allowed? • 56e argument: incumbent on petitioner to produce
evidence/affidavit about fact to be relied on… But argument
-Non-movant fails b/c not intended to shift 56c burden of moving party: “if
having to evidence in support of motion doesn’t establish absence of
produce genuine issue, SJ must be denied even if nothing attached to
something in opposition”
response? • Hard standard to show that nothing there (hard to positively
demonstrate a non-existence)
Summary Sufficience in Celotex v. • 56 • In motion for SJ, a showing may just be pointing to lack of
Judgment “showing” Catrett • (12b6 evidence—don’t have to produce new materials
lack of ) • SJ proper if no gen issue. Moving party has burden of
genuine issue: explaining reasoning or motion & identifying where absence
producing of gen issue…BUT no duty to produce evidence to negate
evidence vs. opponent’s claim—Rule 56a/b
pointing to
absence? • So validity of granting SJ = independent of
affidavits/evidence submitted. Original motion doesn’t have to
be supported by affidavits—those just make it more
susceptible to rejection. If you can rely on absence of issue
w/out affidavits, OK—only necessary to point out from the
record. D.C. Circ. relied on 56e & Adickes: party opposing SJ
bears burden only after movant meets its burden coming
forward with proof of absence of genuine issue of material
fact. Modifying Adickes: Moving party does have burden, and
no burden on non-movant until movant has shifted by making
showing…but “showing” may just be pointing to lack of
evidence on record, in addition to possibly showing evidence.
• 56(e) intended neither to reduce nor add to burdens of 56(c)
• Interpret 56 (liberally) so as to weed out. SJ NOT a disfavored
shortcut—it is integral part of good procedure & justice.
Picking up where “notice pleading” left off in filtering suits.
Part of due process of movant
 16

• Diff between 12b6 & 56: In complaint, allegations are

assumed true to withstand dismissal; in SJ, not assumed true
(though assumed most favorably) to survive
• DISSENT (Diller: off-base): Court has not explained what is
required of movant seeking SJ on ground that non-movant
cannot prove its casewill create confusion. Even if agreeing
in principle, in this case didn’t think Celotex met burden.
Movant’s burden’s: Initial burden of production*—shift to
other party; make prima facie showing (Rule 56)— +
Ultimate burden of persuasion—always on movant; more
stringent than initial (has to be clear that trial unnecessary).
Initial/Production: (*Diller disagrees here…): If burden of
proof at trial will be on movant, then it must support with
credible evidence; OR if burden will be on non-movant at
trial, may submit affidavits OR point to absence of issue. If
just pointing to absence, can’t just have conclusory denial
(that’s no burden at all)—would just go to harassment.
Showing of absence must be affirmative in itself—have to do
something (e.g. point to specific parts of record)
• *Hoff’s testimony would be looked at differently under JMOL
than SJ because would be what actually came out at trial (no
speculation/inferences problem)…see Catrett, which
anticipates that
Summary Sufficiency of Catrett v. • 56c • Items presented by P, though insufficient on their own, when
Judgment showing in Johns- taken together create a genuine issue of material fact
opposition to Manville
motion for SJ (remand
• Trying to maintain higher standard for SJ (i.e., harder to get),
in opposition to SC in Celotex
sufficient to from
carry burden Celotex) • Dissent (Bork): Can’t read into witness listing some personal
of proof at trial knowledge that wasn’t claimed in the evidence/on record.
Court should avoid reading between lines; should not shun SJ
-Summary Hazy line Matsushita • 56e • Judge decides economic theory as matter of law, excluding
Judgment between judge • (like expert testimony as to monopoly theory, circumventing jury
deciding law post- • Failure/non-existence of monopoly = evidence that no
(Remedies: vs. fact: hoc conspiracy. Means to sustain losses not same as motive
Injunction) 12b6)
-Encroaching • Absence of motive/economic rationale  no genuine issue
on jury role? (56e). Show more than conspiracy—also injury
• Must be “genuine issue”—i.e., realistic, reasonable based on
-expert evidence to fact-finder. If it makes no sense on its face, more
testimony? persuasive evidence must be produced. Hold evidence in light
favorable to non-movers… Review the record taken as a
whole.
• Antitrust = special case: can’t just draw ambiguous inference
b/c conduct that looks the same in legal competition as well as
illegal is not evidence to support inference. Also, must show
evidence to exclude possibility that behavior wasn’t
independent. (Comp. w/Twombly… analogous to heightened
pleading standard)
• From Monsanto: Don’t infer conspiracy when implausible b/c
this will actually deter competition, which is what antitrust is
supposed to promote. Economic emphasis—if no
monopoly/oligopoly yet, then it’s good for consumers.
• Dissent: Court invades fact-finder’s territory. Makes econ
 17

assumptions (basis of whole argument) that are contradicted

by a report offered by respondents. Report creates factual
issue, so no SJ. Debatable assumption that conspiracy would
value profits over growth = question of fact for trial
Summary -Court Anderson • 56 • Promoting SJ: standard not whether “scintilla” of evidence for
Judgment weighing • (50) claim, but whether reasonable jurors could find preponderance
evidence… of evidence. Supposed to be “clear & convincing” burden to
(JMOL) invading fact- get SJ…but seeming to change to “preponderance of
finder evidence” standard (at SJ stage)
province?
• SJ as similar to directed verdict/JMOL of Rule 50: “genuine
issue” vs. “reasonable jury”
• Dissent: Anderson calling for judge to weigh evidence to meet
quantum of quality/caliber. Leads to counsel worrying,
presenting all evidence at SJ…then judge becoming jury!
Fears SJ will become full-blown paper trial on merits…and it
has! What about 7th Am? Better standard: If evidence supports
elements needed to be proved, then SJ must fail, regardless of
how clear/convincing  that’s for fact-finder
Summary -Inconsistent Colosi • 56 • Posner: if multiple affidavits, some defeating/contradicting
judgment affidavits others on same point, then whole point can be negated if
there’s an overwhelming imbalance
Right to Whether Civil Curtis • 38 • 2-part test decides. Here, CR Act not requiring jury trial but
Jury Trial Rights Act or 7th Am giving it b/c legal claim (tort) & legal damages
7th Am require
a jury trial
• 7th Am: “preserving” right to jury trial for “suits at common
law.” CL extending to all cases in which legal rights were to
upon demand
be ascertained and determined (as opposed to equitable rights
in action for
alone) and equitable remedies. Looking back in time to see
damages &
what “common law” means…can be originalist or loose/
injunctive
expanded to analogous claims/theories (here, duty of
relief
innkeepers not to refuse common carriers w/out justification).
• 7th Am can apply to causes of action based on statutes (not just
common law). Does apply to actions enforcing statues if legal
rights/remedies—jury trial required on demand. Damages
action here is a “legal” action (basically analogous to
common law tort)
• 2-part test: 1) Is the action of or analogous to common law
(legal theories)? 2) Is the type of relief sought legal (versus
equitable)? If relief is only equitable, no 7th Am right, even if
suing for legal claims…unless statute says otherwise—then
statute supercedes
• Argument that statutory claims not qualifying under common
law, since statutory…but that argument dismissed. Statutes as
1-way helper for jury trial: Can’t take away 7th Am right, but
can give jury trial right where not guaranteed by 7th
• Preliminary injunctions remain available without jury trial,
even in damages actions
-Right to -Joinder vs. Beacon • 38 • Decl. Judg. Act & Rules change tradition, expand legal realm
Jury Trial severing of Theaters • 42b over equity. Joinder allowed, so jury for both.
legal & • 13a
-Joinder equitable
• Discretion of judge to sever—separate trials for liability &
damages.
claims—trying
-RJ/CE separately • *Fox jumping the gun: The would-be plaintiff is Beacon
before judge & (common in this situation that other side sues first); the
 18

jury underlying lawsuit is the antitrust claim. DC abused its 42b

discretion to postpone/separate antitrust claim. Fox can just
-Duplicity of present its case all in one suit, get injunction from judge after
fact-finding? jury gives its verdict. Beacon shouldn’t have to split up its
Preventing case—compelled by 13a to counterclaim.
preclusion • Antitrust case as well as injunction hinging on
“reasonableness” of first run, which is a factual issue…so it
would be a problem to sever because it would duplicate the
fact-finding process by having judge find them in bench trial,
first, then having jury re-determine the same question in
subsequent trial: Res judicata & collateral estoppel
• Rules allow for liberal joinder, & DJA expanding scope of
law over equity. DC may split cases, but only in extreme
circumstances. Efficiency of joinder; certainty & non-
duplicity of fact-finding.
• Rules (or majority’s interpretation) morphing historic
jurisdictional structure of law/equity
• Dissent: OK to split under 42b, so DC justified in using its
discretion. Just b/c Beacon answers w/counterclaim instead of
denial, shouldn’t change equity jurisdiction. DJA not
expanding law (over equity)—just giving new remedy (i.e.,
declaratory judgment) at either law or equity; DJA just an
empty vessel
• Equity courts may consider legal rights in part—no bright line
rule. Rules do not expand substantive law. Counterclaim did
not transform claim into action at law. Rules do not trump
historic structure
-Right to -Functionality/ Markman • 38 • Where historical test of law/equity fails, decide by
Jury Trial complexity as functionality: if too complex for jury, let judge decide
consideration • First, ask if cause was traditionally legal or analogous to legal
for having (e.g., Tull). Cause here is legal (as opposed to equitable). If
jury? (Here, so, second, must decision go to jury to preserve “substance”
judge or jury of common law right? Meaning of “preserving…substance”??
to define In interpreting, use historical method: look to antecedents,
patent claim?) analogies. Here, no answer from history… If no historical
answer, look to functionality
-Implications
for due • Miller v. Fenton (1985): If indecision, decide based on
process? whether judge/jury be better positioned to decide. In patent
(What is construction, judge better able b/c trained in interpretation,
purpose of due and claims are highly technical. Although questions of
process credibility bound to arise are territory of jury, those are less
anyway?) crucial to overall interpretation than trained ability to evaluate
testimony relative to structure of patent.
• Also, policy reason: judicial construction = more uniform
(thinks majority…), thus avoiding uncertainty &
discouragement of investment
• Complexity exception? Mistrusting ability of jury / preferring
wisdom of judge in complex matters.
• “Markman hearings”: now customary at beginning of case
about scope of claim (though the question of whether device
infringes on patented device is for jury). Lower courts
dissenting… Does complexity exception under patent
construction apply to other difficult suits (e.g., antitrust
 19

[econ], mass tort [scientific]), too?

• Purpose of due process? 3rd Circ: To minimize erroneous
decisions…so if jury not understanding evidence and laws,
then it can’t apply them reliably/well.
• Dissent/argument against accuracy purpose of due process:
Missing out on legitimizing force of juries, then…and
objective truth not certain w/judge anyway. Due process
w/jury necessary for moral authority. 9th & Fed Circs.:
Nothing says that juries removed if too technical (just give
them with proper instructions). Due process is a process—not
a destination (i.e. accurate result); trials to be fair not perfect.
• Critique: Shouldn’t scope determination be part factual?
Partly based on expert opinion? (Since judges not patent
experts?) Compare to Matsushita
• Strange/Inefficient to determine scope of claim before actually
examining (factually) the device/patent in question
Jury vs. Special Gallick • 49a • Jury found essential basic ingredients, so these answers rule
Judge verdicts: • (59) over more conclusory answers b/c maybe jury
validity of misunderstood/misapplied later ones.
(New Trial) finding when • Making effort to preserve jury verdict—reconcile apparent
seeming inconsistencies (wording) so as to preserve
inconsistency • Dissent: The more conclusory answers—broader ones—
in specific
should not be defeated by the “ingredient” answers to the
answers
extent irreconcilable. Should only try to constrain a
reconciliation when jury returns a special and a general
verdict (try to fit special to meet general). But here, should
order new trial. Judge invading jury’s province to find…
JMOL -Extent to Galloway • 50a • Need to demonstrate by more than speculative inference.
which jury • (7th Here, even in best light, gaps that can’t be bridged (and gaps
Right to inferences will Am) there b/c wife won’t testify, so no good inference from that).
Jury Trial be allowed on As a matter of law, not thinking rational jury can draw
evidence vs. inference on 5 yr. chasm… (So how much time would be
court making OK?) Burden of proof on P—here simply not met, even
legal cutoff; giving full credence, since huge gaps.
speculation vs.
proof
• JMOL not barred by 7th Am. Here, no 7th Am right here b/c in
1791 no jury right to claims against sovereign…and 7th
Amendment does not preclude JMOL anyway (Rules as
-Seventh
evidence). Jury right wasn’t absolute in 1791 anyway: had
Amendment
demurrer to the evidence as well as motion for new trial… 7th
standard
Am not binding courts to exact procedure of 1791—evolution
allowed, then & now. 7th Am just to preserve fundamental
elements of jury rights, not procedural details. 7th Am neutral:
impartial to either side’s rights
• Dissent: Court invading jury’s fact-finding province in
common law suit by weighing evidence, as barred by 7th Am.
(ANACHRONISTIC: JMOL now expressly permitted by
Rules) Directed verdict—as extension of demurrer—was
when “no evidence whatever”…but this was potential for
judicial intrusion and went beyond demurrer b/c of big risk
difference: JMOL has no risk whereas demurrer gave movant
no chance to present his evidence, admitted inferences &
evidence of non-movant, and then faced final judgment!
Getting dangerous when moving to “substantial evidence
 20

rule” when JMOL allowed even though more evidence there

than would have previously needed to withstand demurrer.
Here, even 5 yr. chasm is a question of fact for the jury.
RJMOL -McDonnell Reeves • 50b • Earlier 5th Circ decision: even though/if sufficient evidence for
Douglas a reasonable jury to have found that D’s explanation for firing
standard: was pretextual, this wasn’t the ultimate issue. Issue was
burdens of whether firing was made in direct context of age—and P
pleading, didn’t produce suff evidence. Even reasonable jury standard
production, not enough to withstand JNOV! (to 5th Circ)
proof/
persuasion
• McDonnell Douglas test for burdens of production
&proof/persuasion in ADEA claims on circumstantial
evidence: 1. Plaintiff’s burden of pleading: must establish
-“Reasonable
prima facie case (legally cognizable claim); 2. Burden then
jury”
shifted to defendant to produce evidence against claim, i.e.
that P was rejected or someone else preferred due to legit non-
-JMOL
discrim reason. This is burden of production. 3. Burden
standard:
shifted back to P to prove case by preponderance of evidence:
compare &
P’s burden of persuasion (proof).
contrast w/SJ
• Note: Diller hates McDonnell Douglas test: the steps aren’t
separable—and not presented in this order at trial (really 1 &
3 first, then 2)…but this is black letter. However, Court here
seeming to implicitly recognize here that 1-2-3 not discrete
• Here, 1 & 2 easily met. P made substantial showing that D’s
explanations (under #2) were false. 5th Circ ignored evidence
by P establishing p.f. case & challenging D’s defenses—Court
misconceived evidentiary burden borne by P’s!
• Standard: not enough to disbelieve the D (here, the employer);
must also believe the P’s explanation. HOWEVER, it is
permissible for fact-finder to infer the ultimate fact of discrim
from the falsity of the explanation—i.e., if Part 2 disbelieved,
that may combine with establishment of prima facie in Part 1
to satisfy 3. Thus, 1 + rejection of 2 means no additional
showing necessary in 3. No extra proof needed in 3 (as 5th
Circ req’d)—P can simply tear down 2.
• Whether JMOL appropriate dep on several factors: Strength
of prima facie case; Probative value of proof that D’s
defense/explanation is false; Other evidence supporting… In
any case, NOT true that P must always introduce additional,
independent evidence after D’s defense/explanation
• Compare JMOL to SJ: differences are timing and whether
evidence is prospective vs. what actually came out. Also,
though judge not supposed to consider impeachment/
credibility in JMOL, this may play a role…
• In making JMOL, look at whole record (like SJ—Matsushita)
but draw reasonable inferences for non-movant, not making
credibility determinations or weighing evidence. Disregard
all evidence favorable to moving party that jury not required
to find. (Contrast w/spirits of Matsushita & Anderson)
• P’s arguing strongly that contrary decision would undercut the
right to jury trial by allowing appellate judges to assess
witness credibility
• Allowing appellate judges to assess witness credibility
undercuts 7th Am. The “reasonable jury test” has resulted in
 21

more overturning of jury verdict

• P’s argue that appeals court judges are out of touch w/real-
world issues, comp. w/jurors (here, workplace discrim)
New Trial Justification Sanders- • 59 • If an improper act sufficiently prejudicing jury, new trial can
for appellate El be ordered: Rule 59
overruling
denial of new
• Nature of information (degree that substance prejudices—
whether inadmissible) as well as nature of
trial
presentation/conduct (theatrics of counsel) both count
- Credibility/ • Arrest record ruled inadmissible here for impeachment.
Impeachment Needing new trial because: Close call in this case; the
-Prejudice violation was not isolated nor accidental; the jury was not
-Deference instructed to disregard; information (arrest record) was highly
prejudicial
• Dissent: more deference to trial judge on judging prejudice
• Juries made up of people, so allowing them to hear about
arrests still prejudices them—independent of instructions.
Thinking that jury can’t compartmentalize in mind; though
judge presumably can… Different standards—we don’t trust
the jury as much. Contrast lack of trust in jury, here, with
emphasis on importance & sanctity of jury in 7th Am
-JMOL / Appeals court Weisgram • (50e) • If trial court better able to decide, then remand. But, if appeals
New Trial entering • (59) court thinks no more proceedings necessary given the record,
JMOL after can enter JMOL against jury-winner (after erroneously
-Expert testimony admitted evidence is removed). (Now, express in 50e)
Testimony stricken &
remaining
• No more 7th Amendment infringement if appellate court gives
JMOL than if DC. No reason to remand/give second chance
evidence
b/c not close in this case (but see Dissent). P had fair chance
insufficient;
to present its best case. Fairness runs both ways: both sides
not remanding
have notice, before close of evidence, of objection of
(Anachronism:
deficiency of evidence; both can argue on appeal. Can’t argue
anticipates
that parties will present less than best case on first run. P not
w/50e)
caught off-guard—was aware of continuous objection—
should have anticipated basis of appeal.
-Expert
witnesses— • Undercutting fact-familiarity wisdom of jury/trial judge?
matter of law (contrary to Reeves?). Hurting jury-winners by depriving
them of relied on evidence?
• Impetus to make best case first & fully—you should
anticipate that your evidence might be taken away on appeal!
(esp. if being objected to throughout…)
• Check on runaway juries?
• This testimony can be stricken as non-credible by judge as a
matter of law because court has the authority to
determine/regulate “expert witnesses”—they are experts as a
matter of law (so not infringing on jury’s credibility
province). Uniquely, experts are allowed to speculate/ give
opinions.
• Distinguish from Rozier situation (R. 60 relief) where new
evidence led to new theory, not taking away evidence
-New Trial -Denying new Curtis • 50 • Majority says trial judge rejected that remittitur was not due to
trial Publish- • 60 passion/prejudice improper influence (so no new trial
-Remittitur conditioned on ing necessary)
remittitur • Punitive damages allowed here, so must determine a
 22

-Punitive reasonable maximum. Trial judge chose correct standard,

Damages -Constitution- considering purpose of damages as well as reprehensibility
ality of (“wanton indifference to rights”) of acts. Granting new trial
arbitrary not a solution b/c process of applying same elastic standard
punitive would just repeat itself—could go on indefinitely. Curtis had
damages fair chance. Defer, even with vague standard.
• Finality & efficiency—don’t let cycle go on forever
-7th Am
implications of
runaway jury
-Remittitur Appealability Donovan • • In federal court, P may not appeal a remittitur order they have
of remittitur? accepted, whether cause of action is state or federal law.
• Efficiency & closure of making accepted remittiturs final.
Punitive Determining Pacific • • Punitive damages do not violate due process if: (1) Jury
Damages due process Life instructed properly as to function of PD; (2) Award amount
reasonable- within reasonable limit. Post-trial & appellate review as
ness of mechanisms to make sure reasonable.
punitive
damages
• Factors helpful in determining excessiveness: (1) Whether
reasonable relationship between likely harm from defendant’s
conduct & harm that actually occurred; (2) Degree of
reprehensibility, duration f conduct, awareness, concealment,
past conduct; (3) Profitability of bad conduct & desirability to
remove that motive; (4) Financial position of defendant; (5)
Costs of litigation; (6) Imposition of mitigating criminal
sanctions; (7) Other mitigating civil awards
Punitive Judging due TXO • • High PD amount & ratio OK given situation, motive & wealth
damages process Prod. of defendant. Jury instructions OK.
excessiveness
of PD
• Concurrence: To ask whether particular punitive award is
excessive begs question: in relation to what? No hard standard
of review of excess. Illusion of objectivity & restraint in this
type of review, perhaps discouraging desirable legislative
intervention.
• Scalia/Thomas concurrence: 14th Am does not limit punitive
damages b/c not a “secret repository of substantive rights”.
• Dissent: Due process violation if great disproportion—and
here there was because far beyond any similar precedent.
BMW v. • • Excessive verdict s violate implied substantive due process
Gore rights of 14th Am because of “elementary notions of fairness”
in having “fair notice” of punishment/severity. Substantive
due process, not procedural. “Gateway” for inferring rights.
• Possible counter argument that fair notice/caps on ratios
analogous to our discussion of jury community rule-
interpreter/-maker standard (which is not certain either)—that
jury should be allowed to “compensate” for low
compensatory?
• Three guideposts (showing inadequate notice to BMW of
severity of sanction): (1) Degree of reprehensibility
(presumably considers financial position of defendant? But
wealth of a defendant cannot justify an otherwise
unconstitutional award); (2) Disparity between harm or
potential harm suffered, and PD award; (3) Diff between PD
here and civil penalties in comparable cases
• Concurrence: awards must not be arbitrary to be fairly applied
 23

• Dissent: encroaching on territory of state courts/govs (let them

interpret/make their law)
• Cooper Industries: Constitution requires de novo appellate
review of “three guideposts” of BMW, contrasting w/usual
deference to lower courts as fact finders
Punitive -Excessiveness State • • No bright line ratio, but single-digit PD/CD usually necessary
Damages of punitive Farm for due process. Trying to limit while acknowledging case-by-
damages— case determination
upper limit?
Standard?
• Here, more modest punishment would have been sufficient for
punitive goals, given D’s behavior.
-Punishing Def • Cannot use a case as a platform to punish for operations
for behavior outside jurisdiction, nor can PD be based on D’s dissimilar
outside this acts independent from the acts upon which present liability
case? (Due was premised  due process violation—can’t adjudicate
process merits of other parties hypothetical claims. Punish only for
concern) conduct against plaintiff, not for being unsavory in general.
Little evidence of repeated/similar misconduct by SF
• Here, already high compensatory…and ratio huge… Wealth
of D cannot excuse
• Dissents: No subst. due process (“license to make up”)
recognition no basis for controlling states’ awards of PD.
Damages limits are legislative—defer.
Punitive Excessiveness Exxon • • PD were excessive here. Use ratio as cap to ensure
Damages of punitive predictability, reasonableness, due process. 1:1 good here
damages in (maritime)
maritime law
• PD aimed at retribution & deterrence, not compensation
 making
Can take into account negligence, indifference to rights, etc.
common law
limit • Many states have limited PD with absolute monetary cap,
CD/PD ratio or both. Median ratio of PD/CD awards less than
1:1… Problem is unpredictability of PD. Median ratio is
reasonable, fair…but mean (2.9:1) and standard dev (13.8) are
hightoo great a fluctuation; outliers too extreme. PD bad if
arbitrary, which anecdotal evidence suggests
• Here, no due process review. SC can make standard, like a
state court… SC not a constitutional interpreter here but rather
a common law court (since maritime = federal common law).
• Verbal guidelines—“shock the conscience” or “passion &
prejudice”—not effective at making predictable/non-arbitrary.
Quantified limits better….but hard to have hard caps as in
criminal law b/c there is no “standard” tort or contract injury.
Ratio as best route. Analogous to state & some Congressional
legislation. No legislation-from-bench problem here b/c, in
absence of legislation, it is common law courts’ responsibility
to evolve the standards (can’t just call for legislative action)—
and SC as CL court in maritime law
• Looking to other jurisdictions’ caps for guidance. Here, no
profit to Exxon—no need to deter through PD. Thus, 3:1 &
2:1 are too high. Median, 0.65:1, should be reasonable in a
good system Here, since no intentional malice & no profit,
take 1:1 as upper limit in such maritime cases
• A penalty should be reasonably predictable in its severity so
 24

people can choose actions. Looking to statistics, middle of the

pack, as a guide (But why is slightly above median made to be
the upper limit??)
• Dissent (besides subst. due proc.): The “abuse of discretion”
standard is well grounded, sufficient to take care of outliers.
The caps the majority considers have been legislative, not
judicial (so not analogous unless Congress). Slippery slope in
imposing ceilings… Can be fair without rigid formula
Punitive Punishing D Philip • • “Evidence of actual harm to nonparites can help to show that
Damages for behavior Morris the conduct that harmed the plaintiff also posed a substantial
outside the risk of harm to the general public, and so was particularly
case? (due reprehensible”
process prob) • Yet jury may not go further than this & use PD to punish a D
directly for harms on nonparties. Punishment for harm to non-
parties violates due process b/c: No chance to defend self
against non-parties; Standardless, ambiguous judgments—too
complex to consider  goes back to fair notice, since
uncertain; Unprecedented to punish for actual harm to others
—only precedent for considering the reasonableness of PD in
light of the potential harm the conduct could have caused.
Court’s instructions to jury were unclear
• Dissent: Agreeing with standard set forth—but the state
court’s procedure was not inconsistent with this standard; nor
was there any objection at trial by PM to the actual
instructions given!
• Since can’t consider harm to others, how to determine
reprehensibility in some cases, then? Cutting into 1st
Guidepost? Foreclosing on punitive damages altogether?
Maybe not: *Logic that you can consider harm to others to
determine insofar as that would reflect on the defendant’s
negligence—i.e., how knowingly they exposed the plaintiff to
harm/risk—which speaks to reprehensibility; but cannot
extend the punishment for actual harm done to others. In other
words, look outside the parties (to knowledge of effect on
others) to determine the reprehensibility of defendant’s
behavior in this case in light of awareness of its behavior’s
potential to harm…then punish just for the harm in this case.
Finality vs. -Motion to Kupfer- • 60(c) • No fraud on the court, so judgment vacation (based on fraud)
Vacate vacate & man barred by Rule 60c/statute of limitations.
Judgment sufficiency to
constitute
• Normally 1-yr filing time limit, except saving clause: vacate if
fraud upon the court. Fraud not just anything bad—only if
“fraud” on the
preventing usual, impartial judicial operation.
court?
• Fraud b/c failure to disclose? If criminal case, or if fiduciary
-Statute of duty to P, or under order to produce, then quite possibly
limitations fraud…but not so here. Ethically, prob should have turned
over, but hindsight 20/20. Ross didn’t know of Purcell’s
(surprising) ignorance; made no misrepresentations
Vacation of -Free choices Squibs • 60b5 • Ackerman: no relief for “free, calculated choices”
Judgment
-Intervening
• Finality can be overcome by change in law, if suff public
policy reasons. Agostini: Court vacating injunction (teachers
law
in parochial schools) given laws in meantime. Dissent: no fact
change, no formal overruling, so don’t invite flurry of 60b5’s.
View of law as just prevailing contemporary rules
 25

• 60b5s more common w/default judg. reason not wanting to

accept def. judg.?
• Rule 60 not meant to replace appeal
Res -Preclusion McConne • (41) • (Complex community property case…) Basically, P had
Judicata when chance ll opportunity to raise claim, didn’t—so precluded
to raise claim • P had to amend complaint in state ct. By dismissing action
foregone w/prej, dismissal was final judgment on entire claim, so res
juditcata in fed ct. Rule 41(a1b): could have dropped claim in
federal court w/out prejudice, but state law may be diff…
-Preclusion Injunction (in Consume • 19 • Strictly speaking, not RJ; not collateral estoppel; and neither
rev-FOIA) rs Union • 22 stare decisis nor comity binding.
-Joinder barring non- (FOIA) • 24 • If wanting to bar original non-parties, must join them
parties from • (23) somehow: defendant class action; interpleader counterclaim
-Interven- bringing • (60) (Rule 22); or joinder (Rule 19)
tion suit/getting
info? • Due process precludes barring non-parties to bring their case
-Impleader & be heard. No responsibility of requestors to intervene in
(-Example of similar suits in other jurisdictions—would be Rule 19 “undue
necessary/ hardship.” Burden is on info-givers to bring them in, not on
indispensable Consumers to intervene under Rule 24
but not proper) • Admitting that agencies may be subject to inconsistency
• Reversed by SC: Didn’t mention due process, just
acknowledged fed dist ct’s power to decree injunction
Res -Exception to Moite • • No exception to res judicata for clear retry of same federal
Judicata RJ for public claims. Appeal, don’t just rebring claim.
policy,
“simply
• Res judicata: even if first judgment was erroneous view of
law, still not open to collateral attack—can appeal, but not
justice” &
bring another action on same claim. Doesn’t matter that
interwoven
interwoven interests. Allowing benefit of appeal outcome to
interest
non-appellants would give the latter windfall benefits from an
w/other
action they chose not to take part in (free, calculated).
parties’
appeal? (no) • Public policy argument is misplaced: res judicata is the good
public policy (repose, no waste). RJ as fundamental,
-Claim- substantive rule, not mere procedure. Even if unjust result,
splitting must adhere to principle of RJ—better overall (repose,
efficiency) despite potential specific injustices
• Against claim-splitting—comp w/McConnell
Res -Raise it or Martino • 13a • Barred by res judicata of prev. settlement b/c had the
Judicata waive it! opportunity to bring up claim, didn’t—and previous judgment
Settlement a on merits would be logically inconsistent with this claim
valid judgment
on the merits
• RJ: barring common law compulsory counterclaims…and this
antitrust claim is one. RJ as absolute bar to relitigation
such that res
between parties (and those in privity with them) to judgment
judicata
on merits of any claim or defense, and to any that might have
applies?
been raised. Mutual releases not necessary—might still be
preclusive effect. Prior judgment—a consent judgment—was
on merits* (so RJ can apply). (*Of course—in the first case,
even Martino would have wanted it to be on the merits,
otherwise McDonalds could have brought the same suit over
again!) The theory of this suit is logically inconsistent with
the prior judgment. RJ applies to admissible matter that might
have been offered for/against a claim. If not presented, lost in
future. But if different cause of action (Martino argues that
 26

since antitrust violation constitutes separate ground for

recovery as well as a defense to the prior suit, it’s a diff cause
of action), no res judicata... True, when facts form the basis of
both a defense and a counterclaim, the D’s failure to allege
these facts does not preclude him from relying on them in a
subsequent suit against P… BUT, when later counterclaim
would nullify rights of the established prior decision, then the
counterclaim is precluded by RJ.
• Not just for judicial economy—also b/c other party
(McDonalds) relies on the first decision
Collateral -Collateral Sunnen • • Where second claim/action between same parties is on
Estoppel estoppel different cause/demand, RJ is applies more narrowly  no
applying to longer the “could have brought’s”, just estopped from
situation
rehashing issues actually litigated  CE
w/same facts,
issues, parties • Here, diff action: royalty payments growing out of license
but stemming contracts which were not involved in earlier action. Even if
from diff identical contract, n/a (not conclusive) if hadn’t been at
contract issue/if diff facts & issues. Here, complete identity of facts,
issues & parties as between this & earlier Board decision…
-Intervening Did Clifford-Horst line of cases change legal doctrine in
law changing meantime? If so, CE n/a & diff result permissible. Yes, did…
preclusive
effect
Collateral -Non-mutual Allen • • 1983 was only new federal cause of action—no effect on
Estoppel offensive CE preclusion. Legislation not seeming to undercut preclusion nor
move power to fed cts over state. App ct: One has a right to
-CE applying federal claims as wholly unencumbered…but where getting
in civil/fed this from? No justification in Constitution, 1983 nor case law.
case (1983) 1983 drafters didn’t consider it substitute for habeas corpus.
from earlier
criminal/state
• Dissent: Fed remedy as supplementary to state, not
competing, so different. SC’s policy of 1983 preclusion: *If
decision?
party submits fed claims to state courts explicitly, then
foregoes fed ct hearing—implying that if not submitting
-Trusting state
specifically, then not foregoing… 1. Nonparties couldn’t
courts?
invoke CE at time of 1983 passage b/c no mutuality of parties
(was state, not police officers). 2. Narrow defs of ‘issue’/
‘cause’no civil preclusion if criminal origin. Criminal &
civil (1983) have diff remedies, diff process of evidencediff
standards & concerns (basically not trusting state court
judges?? Thinking they will bend evidence so as not to let off
criminal?). Def not seeking to challenge his conviction
collaterally, just seeking damages. *P didn’t “voluntarily”
litigate in state/crim trial just by raising 4th Am defense there,
so not precluded under aforementioned SC rule in later civil
action. Unfair to force choice between full criminal defense in
state trial & potential of later civil federal trial for 1983
-Collateral -Non-mutual Parklane • (38) • With Off CE, shouldn’t just apply mutuality—other factors to
Estoppel offensive CE: Hosiery decide fairness of CE. Give courts discretion to apply.
other tests Dependent on whether nonparty could have reasonably joined
-Right to besides earlier, & whether fair to defendant (given below factors)
Jury Trial mutuality
• Criticism of mutuality: Party who had litigated & lost has
advantage over new party in relitigation—SC abandons
-Piggyback on
implicitly. Party getting more than one full & fair chance to
nonparty’s
 27

winning suit? litigate? Misallocation of resources… Precedent (where

mutuality abandoned) was defensive CE, but here
-7th Am & CE offensive….treat differently? Arguments against Off CE: 1.
w/non-parties Doesn’t promote same level of judicial economy as Def CE
to orig action? (defincentive to join all possible defendants, whereas “wait
Keep & see” with off). 2. Off CE unfair to Def? D may not defend
mutuality against small damages…or if new procedure available in 2nd
doctrine for suit…or if inconsistency with previous decision. But here,
CE? (esp. reasons to allow: 1. Not unfair or wasteful. D’s had full & fair
offensive?) opportunity—tried harder. 2. P’s filed first—not just waiting
around so as to avoid risk but reap benefits.
-Judicial • Now, does 7th Am apply? Claim 1 (SEC): Seeking only
economy injunctive relief, so no right to jury. But Claim 2 (Shore)
seeking damages, so 7th Am concern… Return to Beacon
Theaters—risk of double deciding (judge/jury)? Normally, err
on side of preserving jury… Katchen: judge can adjudicate in
equity prior to legal, even if 7th Am would later apply.
Equitable decision can have CE effect on subsequent legal
claim w/out 7th Am prob. 7th Am arg n/a here—no need for
jury on issue—because jury had already decided those issues.
Right to a jury/1 chance. And 7th Am not rigid, so doesn’t
matter that Off CE not a cause of action in 1791
• DISSENT: 1791: CE only for parties (mutuality). CE as a
judge-made doctrine—cannot be consistent with 7th Am.
Constitution is rigid: must preserve jury trial! Even if no 7th
Am issue, the lack of jury fact-finding is unfair in this case.
Strong federal policy favoring jury trial. Jury trial could easily
have led to different result b/c procedural differences. So there
was procedural difference here (see McCurry)—here that diff
b/c judge finding evidence in claim 1 versus jury—which
could make unfair, so no Off CE. Jury not merely “neutral”!
And anyway, as far as efficiency prong of CE, not really a big
savings b/c you need jury to decide amount of damages,
anyway. Judicial economy argument is moot
• Can’t really argue that didn’t go all-out in first litigation—
parties knew importance of SEC suit
• If Parklane had won—flipped—could have used def CE? NO
—b/c due process concerns (maybe other party did bad job
prosecuting…)
Collateral -Exception: Montana • • US was effectively in control, so sufficiently related; and
Estoppel CE applying to same facts, law; and no other prejudice. CE applies to
nonparties nonparties, too, when they assume control of litigation in
when which they have an interest & seek to redetermine. US
sufficiently exercised control over 1st decision, here—so although not a
related party, suff. related to activate estoppel. Factors: 1. Same
(“laboring substantive issues? 2. Controlling facts/law still the same
oar”) since then? 3. Special circumstances warranting exception
from preclusion? US says facts different (#2) b/c different
-(not a privity contract—but decision would have been the same despite
case) credit-seeking clause in new contract (that wasn’t material to
decision). No change in law since then (#2) Moser: Generally
no estoppel on matters of law in subsequent actions on
different demands, merely b/c the parties are the same.
However, estoppel from disputing facts, questions & rights
 28

decided, even if erroneous application of the law. Maybe no

preclusion if different subject matter when later issues of law
arise… Moser exception may be fuzzy in application, esp if
partial similarity of claims… But here, no exception b/c same
“demands”
Joinder Permissive Mosley • 20a/b • DC abused discretion to sever. Parties were suff related
joinder— • 42b (below)
determining • (13a) • R. 20a: may join in one action as P’s: 1) if asserting right
extent of • (23a) arising out of same transaction, occurrence, series… and 2)
“same common questions of law or fact will arise in action. R. 20b &
transaction…” 42b: allowing for separate trials. Discretion of court to
(Discriminatio allow…reverse only if judicial abuse. Purpose of R. 20—
n behavior? speed & convenience; finality. #1: Pursue on case by case
Perhaps a basis. No hard line. Guidance from R. 13a: “transaction” as
“series of logically related. Don’t need identity of events, just
occurrences”?) reasonably related. Here, P’s have asserted a right out of same
transactions/series: If state-wide system of discrim OK for
joinder (US v. Mississippi), then company-wide system OK,
too. #2: Don’t need all of questions of law/fact to be common.
23a as guide: Has been found that Title VII discrim is basic to
the class, so OK that diff class members suffering different
effects of it. Right to relief dep on discrim injury; discrim
character of D’s conduct is basic to each P’s recovery, so OK.
• So abuse in severity… Not too complex—can separate trials
later if necessary. Joinder encouraged for expedience as much
as fairness will allow
• Not being very flexible—not giving much deference to
discretion of DC judge—in construing facts & applying law
• Same transactions—sex discrim & race discrim??
• DC could still order separate trials (R. 42) even though App
Ct not allowing severing
Joinder Compulsory Temple • 19 • Joinder wasn’t mandatory, though it was permissible (by
joinder—Rule • 12b7 plaintiff). Joint tortfeasors not necessarily joined in single
19: Make P lawsuit. Synthes says joint tortfeasors = indispensable parties
sue D’s under R. 19b. Notes to R. 19a says that a tortfeasor with usual
together? joint-and-several liability is merely a permissive party—
doesn’t have to be joined. Temple’s getting his chance to full
-Necessary v. litigation. 19a1bii: Does it leave Def subject to double
proper v. obligations? No…
indispensable
• Judicial economy not trumping in here… R. 19 as pro-
plaintiff: still a fair degree of autonomy
• Here, same claimant vs. separate D’s. Could have sued D’s
together under R. 20.
• Meeting R. 19a1a—“in that party’s absence, the court cannot
accord complete relief amoung existing parties”? Can Synthes
make argument that Temple might not get complete relief if
only suing Synthes? What is “complete relief”?—arising out
of claim?
• 19a1bii—not concerned w/consistency of relief
• If Temple gets full compensation (if we could pinpoint that—
though that’s nearly an impossible hypo) from one defendant,
probably can’t recover more from other…
Joinder Compulsory Valley • 19 • Lord’s is necessary b/c 19a2i—“impaired ability to protect
 29

joinder?: West • 12b7 that interest” in injunction against—if feasible Why not
-Necessary v. feasible to join Lord’s? No personal jurisdiction…
proper v. • So passing 19b test—can the show go on without this
indispensable necessary party, or is party indispensable? Equity & good
conscience? Case-by-case question… Would it be prejudicial
Narrow to either VW or Lord’s (other parties)? No: Lord’s rights
interpretation w/VW not at risk here, so no prej to it. VW could be subject
of to inconsistent obligations to H & L…but that’s because it
indispensable decided to make inconsistent leases. Inconsistency is a result
of its own actions, not of the court’s procedure (relevant?)
Inconsistency Certainly all the rights & obligations arising under a lease can
vs. prejudice be adjudicated where all of the parties to the lease are
present… (conclusory?)
• What if Lord’s files suit elsewhere & gets judgment? No suit
has been filed, and no evidence that other court would take
view different than this one. Lord’s was given chance to
intervene—chose not to—so sufficient representation
• We sometimes let the show go on even if ‘inconsistent
obligations’. Not the same as prejudiced: inconsistent
obligations is just a qualifier to get to the consideration of
wither prejudice…
• Court discounting potential harm to VW should subsequent
suit follow…”peeking at merits”? Legitimate—prejudging
VW before the case?
Impleader -Impleading a Toberma • 14 • No R. 14/impleader as a type of defense—can’t claim another
3rd P Def— n • 12b6 party wholly/directly liable; only for secondary liability.
what kind of (Allow chance to amend 3rd P Complaint)
liability
necessary?
• R. 14 allows impleading of 3rd parties who may be liable to 3rd
Party Plaintiffs for all/part of orig plaintiff’s claim against 3rd
PP/orig Def. For judicial economy: don’t have people suing
-Plaintiff (non)
down the line for liability; settle in one suit. R. 14 is for
autonomy
secondary liability—that if D found liable, then 3rd PD also
liable to him under some theory of derivative liability. A
-Secondary
theory that another party is the correct defendant is not
liability
appropriate for R. 14 3rd P Complaint—that’s for an answer,
not an impleader
• Impleader in general: Compromising autonomy of plaintiff
for the sake of judicial efficiency
Impleader Impleading a Joe • 14 • Court agrees that JG & Capts cannot both be employers, but
related Grasso not either/or: could be a third finding—that crew are self-
“either/or” employed. Thus, 3rd P liability doesn’t depend on main claim
(supposedly) (as required); rather, it’s its own, independent complaint, so
party, but no impleader.“Claim” to be construed expansively—allow
when the right impleader if D’s right against 3rd P are merely an outgrowth
claimed of same core facts which determine P’s claim. *But no
against 3rd impleader if independent, separate, even same core of facts
Party is
separate from
• US acknowledges that no normal secondary liability here—
but argues that should be impleaded b/c so related that in all
main claim
likelihood one of the two will be liable, & doesn’t want to get
whipsawed in 2 suits, lose both because each defendant claims
it was the other. Court saying that if it were either/or, then
OK*…but possible that fishers are independent contractors (in
fact, gov had argued this in a prior case), so fails. (*Sloppy
 30

dicta!—“either/or” NOT same as derivative liability…won’t

always be appropriate)
• “either/or” reasoning wrong b/c R. 14: “…part of claim
against it…”—captains would be liable for different cause of
action/claim, not part of same claim. Comp. w/McCormick
(dram shop): driver couldn’t have impleaded dram shop—
maybe insurance co. (though not either/or in that case either)
Interventio Intervention as American • 24a2 • R. 24a2: give deference to DC—trial judge has best feel for
n of right Lung case, familiarity with facts. Req’s for intervention as of right:
1. Timely application; 2. Claiming an interest related to
property/transaction with is the subject of the action; 3.
Movant’s ability to protect interest is impeded/impaired not
being party; 4. Unless movant’s interest is already adequately
represented by parties. Here, #1 yes; #2-4 no. 2—interests too
remote: based on “double contingency” of events (plaintiffs
must prevail, then EPA must downwardly revise). 3—could
participate in rulemaking process, so not impaired. 4—EPA
will adequately look out for interests. Utilities would present
no defenses unique from EPA’s. EPA has statutory duty to
base decisions on knowledge—utilities can represent interests
then, upon solicitation/in fact-finding
• Narrower interpretation of related interest, impairment &
adequate representation. Contrast strictness/benefit of doubt
with Grutter—difference b/c of POLICY & PR MOTIVES?
Interventio Intervention as Grutter • 24 • R 24’s req’s: 1—were timely. 2—subst. legal interest. 6th Circ
n of right (esp. has expansive view of intervention of right. D-interv’s: Their
question of interest is in education access (cont. use of race to boost
adequacy of admission). Grutter assumed, w/out deciding, that had an
current rep) interest. Gratz said no interest that was “legally protectable”.
24a2 does not require specific legal/equitable interest—don’t
need legal “right” to the thing in question. Resolve toss-
ups/close calls in favor of recognizing interest. 3—
impairment. Minimal burden of proof: here, if interest, then
surely impaired by potential decline in enrollment. 4—
inadequate representation. Minimal burden again: Just show
that current party may not make all arguments intervenor
would. Stronger showing of inadequacy if current D = gov?
Miller: no, still only “might” standard. D-I’s: U-M might not
articulate some of intended defenses (pressures may keep it
from referring to past discrimination)…and may not defend as
zealously (less at stake). DC: but D-I’s don’t propose any
specific additional defenses they would present & UM
wouldn’t…But minimal showing met here: UM less likely to
present evidence of some current admissions criteria
• More liberal allowance of intervention: can intervene as of
right even without legally protected “interest” (just practical).
Not exactly counterpart to R. 19 “necessary” parties—R. 24
expanding R. 19’s “necessary” circle a little bit (at least in 6th
Circ)
• Policy choice to allow here—not wanting to look bad at not
letting minorities into suit
• Dissent: UM would adequately represent. Give deference
• UM probably not wanting intervention—yes, liking show of
 31

support, but probably just more hassle in terms of actual

litigation—but not opposing b/c would be bad PR to not allow
inclusion in a fight over inclusion (diversity)…
• Have to “peek” at merits before deciding on intervention,
insofar as having to decide whether prospective interveners
would present valid different arguments (for adequate repr)
-Class Class action Angelastr • 23a • Req’s of 23A: 1. Numerosity (satisfied—thousands). 2.
Action qualification— o • 23b2/ Commonality (satisfied—by narrowing to single issue of
passing 23a & 4 documents, which were uniform); 3. Typicality (satisfied—
-Summary falling under • 23c4a redundant w/commonality?...similar claims/defenses…factual
Judgment 23b2 or 23b3? • 56 & legal stance must be characteristic—OK); 4. Adequacy
(satisfied—P will fairly represent b/c a) good attorney & b)
Burden of not antagonistic to rest of class)
proof...genuine • 23a passed…still must satisfy 23b. (23b1 no) 23b2: Seeking
issue… inter alia inj. relief: disclosure, cessation of violation. D: deny
summary for 2 reasons: 1) class ended years ago, so can’t seek inj relief
judgment w/out current practices; 2) inappropriate when P seeking
monetary dmgs herself. No case law on #1…but #2 bars P b/c
23b2 only available when exclusively/predominantly
injunctive relief. 23b3: Common questions of law/fact
predominating over individual matters? Not here.
W/misrepresentation, burden of proof still on P (reliance not
presumed)so all members of class would have to prove…
impracticable. No presumption of reliance, so no SJ b/c
genuine issue of material fact
• Stricter policy on allowance of class action
Class -Class actions Equifax • 23 • Three reasons to allow appellate review of class cert: 1)
Action facilitated? “death knell” cases for P’s where no suit if not CA b/c not
economical otherwise. 2) just as denial of class cert can doom
Interlocutor -Worry about P’s, granting class cert can force D’s to settle even if success
y Appeals res judicata on merits unlikely, since corporations not wanting to take risk
from another of huge loss (mirror image of “death knell”). OK to review if
(circumscribin stakes out of proportion with merits. Interaction of procedure
g) case… & merits OK for interloc appeal b/c otherwise would be too
privity… (due late to review after final judgment. 3) Appeal facilitates the
process of devo of the law. Appellate decisions better—both affirming &
preclusive reversing. Pompous? Or legit b/c 3 judges not 1; better
effect?) resumes; publicity of appellate decisions; precedential effect
(more consistency). The more fundamental the question, the
-Potential prob more appropriate the review
of P’s
“shopping
• Crawford decision can be conclusive/binding on P’s of Blair,
around” states since they were subsetcould require that Blair P’s decertify,
to get class but not automatic… Parallel class actions often overlapping,
cert seeking same relief. When 1 parallel case reaches final
decision, then RJ on the other… But here, not yet final
-Reasons to decision in Crawford (on appeal). Yet sometimes, even if not
grant, like/not final in parallel, may be abuse to press forward against party
interlocutory in other case… But not here, b/c Crawford wasn’t decided on
appeals merits—just negotiation.
(excluded… • For 23b2 suit, Crawford was a paltry settlement…did P “sell
see brief) out” to class members?... questions re: adequacy of repr.
No judgment on validity of Crawford, but enough questions
that not barring Blair
• Best way to avoid wasteful overlap in same district is to
 32

consolidate. Blair P’s saying shocked to realize overlap…not

sure who to believe. But D’s certainly should have known &
moved for consolidation. Related cases—come back to same
panel in future. For now, Blair can proceed
• Claim splitting problem if Blair P’s seeking to intervene in
Crawford while also pursuing against Equifax in Blair? (i.e.
doubling claims against Equifax in two suits?) No problem
under claim splitting before classes certified b/c not officially
same parties (just members of putative class).
• Proposed Crawford settlement seems collusive (not adequate
repr of other P’s). Would allow individual suits to follow—
not res judicata? No, b/c parties diff if indiv, not class…seems
to bargain around RJ. Why not wanting to allow bargaining
around? efficiency for the court. Unless bargaining around
RJ would be more efficient by facilitating quick settlement of
first claim
• “Class member” vs. “party” in CA’s…effect on res judicata?
Still applying even though not same party? Yes, because in
privity w/party Comp. CA “party-ness” & due process
concerns with actual notice in service of complaint cases. But
see Hansberry!
-Class Due process Hansberr • 23 • Principle: no preclusion to non-parties b/c due process—but
Action problem in CE y exception of class actions. OK if members of class not party
application in to litigation (still can be bound) unless adequately represented
-Collateral class action or effectively represented
estoppel
-No preclusion
• Narrow issue here: procedure & litig in this case do not satisfy
DP & full, fair consideration of issue. IL SC: Burke was a
when not party
class action, such that members-but-not-parties still bound by
there, no
decision…and petitioners = members, so preclusion. But no
privity,
class here b/c parties to include both those for & against
inadequacy of
enforcement (diff interests not a class)—some can’t stand for
representation
all. Inadequate representationinadequate protection of DP.
-CA procedure Burke P’s sought perf for themselves—didn’t seek to
vs. private suit designate class. Procedure in B wasn’t that of class action—
(whether to wouldn’t be fair.
allow class • Court wanting to strike down racially restricted covenants…
preclusion but not able to use unconstitutionality of racial discrim yet (8
when yrs away)…so using procedural arguments to get to that end
procedure • Stipulations not suff for CE b/c not fully & fairly litigated
different— • Hansberry’s interests represented by Burke b/c privity of
preclusive estate—but not contended on appeal. Hansberry obviously not
effect?) a “laboring oar” here (Montana exception to privity, etc.)
Class -Preclusive Martin • 24 • Looking to Hansberry: one not bound by judgment when not
Action effect of • 19 designated as party, not served. Exceptions: CA’s w/adequate
earlier consent • 23 repr. by party w/same interests; when special remedial scheme
Joinder decree on non- bars subseq litig by non-parties……but both n/a here. Arg.
parties? that white FFs had their opportunity to intervene timely…so
Interventio (Should have should be later precluded. But Chase: no duty to voluntarily
n been parties?) intervene—must be joined. R. 24 Intervention governed by
permissive terms R. 19 mandatory joinder allows for concerns
-Burden of w/finality & double/inconsist oblig
getting in:
intervention
• Joinder as standard for binding non-parties; not foregone
chance to intervene given knowledge—inconsistent w/
 33

vs. joinder… “collateral attack doctrine.” Place burden to rectify

compulsory inconsistency on the parties since actual parties better
interv positioned to know the relief & its effects than potential
intervening non-parties
(-Following • But bog-down effect to join tons in every civil rights suit?
court order Even if so, would need to rewrite Rules…but not persuaded.
being illegal? For any force of preclusive effect of earlier decrees, adequate
notice of earlier suit essential. The difficulty the petitioners
have here in identifying parties has to do with the nature of
the relief—not the fault of the interv/joinder problem…….and
mandatory intervention awkward too. Present Rules = best.
• Putting more onus on plaintiffs to join—and undermining
enforcement / undercutting reliability of/on settlements (since
“court said so” won’t nec. hold up). Doctrine of compulsory
intervention with reasonable notice—would be big emphasis
on getting out notice in first case
• Arg for upholding consent decrees: judicial certainty,
efficiency
• Compare to Walker: even if injunction was bad, it still stands
as law until overturned
• Making a defendant class? Hard to certify—how to identify &
delimit? (even assuming that b1 or b2—just seeking
injunction—so no notice necessary…) Any white kid who
may want to become a FF one day? ‘Commonality’ as biggest
hurdle
• Comp. with FOIA—could have joined other potential
requestors; could have done defendant class action
• Contr. w/Grutter & implication of future preclusion
Class -Class Eisen • 23b3 • Only cert if notice in b3 classes…and P bears cost of notice…
Action certification in • 23c2 23c2: mandatory individual notice
death knell suit • 23c4 • Reasonableness & constit. Validity hinge on whether actually
likely to inform. Comp. to Service—Mullane: publication
-Necessity of
notice insuff. when names & address available. So mailing
notice; who
notice here, since possible, is mandatory…even though 2+
bears cost
million people
-Peeking at • Adequate representation not same as notice
merits • Can’t, like DC, peek at merits to decide likelihood of P’s
winning and notice costs. R. 23 gives no authority to conduct
prelim inquiry into merits (contradicts Rule)
• Part Dissent: Under 23c4, making subclasses that could be
individ informed economically. Bad policy to bar class actions
to those who can’t afford it. P could seek to amend complaint
(R. 15) for subclass
• Potential for reimbursement, but up-front costs maybe
insurmountable
Class -Legitimacy of Amchem • 23 • Peeking at merits of settlement before certifying class? SC:
Action class cert for Settlement conditions are relevant to class cert—OK to look.
settlement W/settlement cond, no concern about trial manageability
when
conflicting
• BUT extra attention to absentees, since there will be no
opportunity to adjust the class at trial!
interests w/in
class • 23b3 as “most adventuresome” type of class—most concern
due to binding effect besides opt-out. 23b3 for situations
 34

-Problem: where class action less clearly appropriate: Extra req’s: (1)
representing common issues predominate individ; (2) class resolution
clients who superior to other forms of res
don’t exist • 23a/b not discretionary criteria in settlement context. NO new
yet… “fair” standard outside 23 just b/c settlement. (Settlement
cond. not necessarily favoring class cert.) Here,
-Settlement predominance factor not met. Caution when individ sakes
only class high & disparities among members great. 23a4 adequacy not
met. Diverse subclasses—not repr by 1 class of P’s, especially
-Peeking at “exposure only” members, who have diff interests than
merits of currently injured P’s, who want $$ now. Some members may
settlement not even be aware of their exposure yet…yet they would lose
before rights by class cert! So notice not even satisfied either.
certifying?
• Leave it to Congress to make asbestos settlement. If it doesn’t,
Rules stand, strictly. Quasi-workman’s comp administrative
-Deciding
system better & more efficient than judicial system (you
unripe claims?
wouldn’t be allowed to go to court)
• Dissent: Not liking tenor of opinion, which suggests that
settlement is substantively bad. 1) Need for settlement is big.
2) More weight to settlement issues for preponderance—no
specific grounds to second guess DC. 3) Defer to DC on
adequacy of rep ?s. Yes, a problem w/rep, but that’s common
to all toxic tort CAs.
• Who would oppose workman’s comp system: Some P’s
thinking more harmed than others (and wanting punitive
dmgs); and trial lawyers definitely not wanting to miss out