*Remember Professor Coxs Course Goals: 1.

Understand the rules it is not about memorization, but rather about knowing where to go in the rules and what to do with them in real-world applications! a. Remember the rules can be limited/affected by the common law! i. Spoliation ii. Issue and Claim Preclusion 2. Strategic thinking regarding litigation a. Have to know the rules to make strategic decisions strategic decisions cannot violate rules! b. Know how to use the rules to be strategic and use them to your advantage and to achieve your clients goals 3. Intro to Statutory Law Analysis/Interactions between the different forms of law a. Case law interprets states and statutes provide different rights from common law b. Statutes can override the common law c. Interactions between different forms of law: common law, statutory law, regulatory/administrative law, constitutional law all of them work together and impact the rights of parties REMEMBER: IF HE ASKS YOU TO GET INTO A ROLE DO IT!!! - IF HE WANTS YOU TO WRITE A MEMO WRITE A MEMO!! ACT LIKE AN ATTORNEY!
JURISDICTION can

a court hear this case? SUBJECT MATTER JURISDICTION Power of a court to hear a case on a specific type of case Can the court hear this claim? A. State Court state can hear almost any claim (and for our purposes, all claims) plenary jurisdiction B. Federal Court i. Diversity of Citizenship 1) More than $75,000 in controversy (28 U.S.C. 1332 (a)-(c)); AND 2) Complete diversity of citizenship every must have diff. citizenship from every 28 U.S.C. 1332 CL.1 Corp. is a citizen of state in which they are incorp. AND state of principal place of business Individual place of domicile ii. Federal Question does the claim arise from federal law? 1) Well-pleaded complaint rule if s complaint includes fed. law, there is a fed. question 2) 28 U.S.C. 1331 Fed. Question: the district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, and treaties of the united states 1. CASES 1) Hawkins v. Masters, Inc. (2003) Dist.Ct. Kansas 2. PERSONAL JURISDICTION power of a court over a particular - does the court have power over the defendant? A. Specific Jurisdiction ties related to the cause of action and to the relevant state; s presence in forum jurisdiction may be sporadic but the cause of action arose from s contact w/ the forum state (Nicastro, idea of targeting forum state) Methods to submit to States Authority: 1) Explicit consent 2) Presence w/in state at time suit commences through service of process 3) Citizenship or domicile (or incorp or principal place of business) 4) Purposeful availment of privilege of conducting activities w/in forum state 5) Targeting Forum must target forum not enough for to have predicted that goods could reach forum state B. General Jurisdiction contacts so substantial as to permit litigation unrelated to contacts; regular activity that subjects party to forums jurisdiction even if c/a did not arise from instate activity I. Lots of ties (e.g. maintains office there, has employees there, has Ks with many corps. In the state) II. Citizen for corp., = state of incorp. & principal place of business

CASES 1) GOODYEAR V. BROWN (2011; SCOTUS) Facts: Paris bus accident w/ Goodyear tires Issue: Whether NC has gen. jurisdiction over Goodyears foreign subsidiaries & can be brought to

 Facts: car crash in KS kills Creal (represented by Hawkins); Masters was citizen of KS; Creal recently moved to KS w/ wife and her children but had lived in Missouri most of life, conducted business there, maintained an address, drivers license, life insurance all in MO Issue: Is there diversity jurisdiction - Was Creal citizen of KS or MO? Holding: No complete diversity Creal citizen of KS Rule: Person is a citizen of the state in which he or she is domiciled for adults, domicile is established by physical presence in a place in connection w/ a certain state of mind concerning ones intent to remain there. 28 U.S.C. 1332 Analysis/Reasoning: Even though he had ties to Missouri, his physical presence was in KS and his behavior showed intent to remain in KS Why would Creals lawyer file in MO when diversity seemed like a long shot? Why file in Fed Ct.? Law may be better (not usually the case though, b/c fed ct. often looks to state ct. rules) Judge Rule you like judge in one ct. over another; you think particular judge will be more favorable to your case Jury Rule who is on the jury? Fed Ct. jury drawn from whole state State Ct. jury drawn from county court is in Filing in state court in KS limited jury pool; was business owner in KS, jury may want to protect , protect one of their own

NC court on claims unrelated to activities of subsidiaries in forum state (NC) Holding: NC does NOT have gen. jurisdiction Rule: A court may assert general jurisdiction over foreign corporations to hear any and all claims against them when their affiliations with the state are "so continuous and systematic" as to render them essentially at home in the forum State. Analysis/Reasoning c/a occurred in France, tires manufactured in Turkey no sufficient/substantial contacts w/ NC connection too limited Specific jurisdiction not applicable subject of claim did not arise from interactions w/ N.C. issue did not derive from activity/occurrence in forum state - stream of commerce test not applicable 2) Nicastro (2011) SCOTUS Facts: injures hand in NJ using machine manufactured by , an England corp. Issue: Whether NJ courts have jurisdiction over McIntyre (incorp. in England & Primary place of business in England) Holding: NJ does not have jurisdiction did not engage in conduct purposefully directed at NJ no personal jurisdiction. Rule: Due Process Clause exercise of judicial power is not lawful unless purposefully avails itself of the privilege of conducting activities w/in forum state Analysis/Reasoning: did not specifically target NJ for sales; no offices/employees in NJ; no contact except for roughly 4 of its machines being used in NJ

PLEADINGS: DRAFTING COMPLAINTS: REQUIREMENTS AND STRATEGY OF PLEADING RULES 4,7,8,9, 10, 11, 12,13
RULE 3 Commence action by filing complaint (and summons, unless waived) with the court RULE 4 - serve summons or request waiver of service Waiver = cost-saving device RULE 7 - PLEADINGS ALLOWED; FORM OF MOTIONS & OTHER PAPERS Complaint Answer to complaint Answer to counterclaim Answer to cross claim 3rd party complaint Answer to 3rd party complain If court orders, reply to an answer RULE 8 GENERAL RULES OF PLEADING** Rule 8(a) Requirements: 1. Jurisdictional allegation Only need to claim basis for subj. matter jurisdiction Fed. Question Diversity of Citizenship Supplemental jurisdiction

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If has a federal law claim and also a state claim, if has filed in federal court, the federal court will have supplemental jurisdiction over the state law claim Short and plain statement of claim Not necessarily enough anymore!! changing standards under Twombly/Iqbal*** Exception when claiming fraud higher standard (Rule 9) Prayer for relief must specify desired relief Case: Gurman s "coughed up a hairball" and left court and defense to sort out the mess should not make any and all claims it has if irrelevant or non-compliant with Rule 8

RULES 7, 8, 12, 13 RESPONDING TO COMPLAINT A. S OPTIONS ONCE SERVED WITH COMPLAINT: 1. ANSWER: RULE 8(b) a. Admit all/in part b. Deny all/in part General denials are rare If not making a general denial must respond to each and every claim All denials must fairly respond to the substance of the allegation If only denying part of complaint must make it specific what portions are being admitted and which are being denied Case: Zielinski v. Philadelphia Piers, Inc. (p.393) forklift owner/operator confusion; generally denied paragraph including question of ownership Issue: whether the s general denial of s allegations that owned the forklift that caused s injury was an effective denial It is an ineffective denial for the to simply deny the s allegations that the owned, operated, and controlled a forklift when owned the forklift but did not operate or control Cannot make general denial when only parts of allegation are appropriate to deny c. Lack knowledge/info 2. AFFIRMATIVE DEFENSES - RULE 8(c) a. Can mix defenses and denials b. Affirmative defenses usually involve introduction of new facts to show that is not entitled to recover c. 8(c) list is not exclusive CASE: Jones v. Block (p.370) injured prisoner seeking job re-assignment; PLRA had exhaustion of remedies requirement Issue: Whether failure to exhaust is a pleading requirement the must satisfy in his complaint or is it an affirmative defense the must assert and prove Holding: Failure to exhaust is an affirmative defense; not required to specially plead or demonstrate exhaustion in complaint Reasoning: adopting more onerous pleading rules to deal w/ particular categories of cases should be done through established rule-making procedures, not on a case-by-case basis Why it matters whether its affirmative defense or part of pleading? Burden of proof d. Burden of Proof: If affirmative defense has burden If element of claim has burden e. To determine whether it is part of complaint or an affirmative defense consider: Language of statute Federal Rules (Rule8(c)) case law PRE-ANSWER MOTION - RULE 12 a. Filed IN LIEU of an answer b. Party waives 12(b)(2)-(5) motions if they already made another Rule 12 motion cannot later try to bring it Waiver rules does not apply to 12(b)(1), (6), or (7) c. Rule 12(b)(1) motion to dismiss for lack of sub. matter jurisdiction is never waived d. 12(e) motion for more definite statement; rarely used if claim is truly too vague to allow party to frame an answer, party usually moves to dismiss under 12(b)(6) e. 12(f) motion to strike redundant, immaterial, impertinent, or scandalous portions of pleading f. 12(g) Timing of motions gets one shot at some Rule 12 motions Beyond 12(h) exceptions, once you bring a rule 12 motion, you cannot bring another one later need to bring all at once

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DEFAULT RULE 55 a. may choose to default in scenarios where they are being brought to court for failure to pay a debt; knows he owes $, not worth paying attorney to file a defense or respond to complaint when you know you have a debt b. May choose to default/not have a choice b/c you do not have $ for attorney and do not know logistics of answering a complaint c. May strategically decide default is better option VOLUNTARY DISMISSAL RULE 41 a. can motion to voluntarily dismiss BEFORE serves answer or motion for summary judgment (if serves 12(b)(6), can still voluntary dismiss) b. can voluntarily dismiss with consent of if has answered c. Strategy: Reasons to voluntarily dismiss: may realize they do not have a strong claim; may realize cost of lawsuit is too high to make the lawsuit worth it d. If voluntarily dismisses does not need to answer ms voluntary dismissal no need to answer REMOVAL TO FED. COURT IF ORIGINAL COMPLAINT IN STATE COURT

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B. CHANGING RULE 12 STANDARDS TWOMBLY AND IQBAL 1. 2. CONLEY FORMER STANDARD - Short and plain; no need for many details TWOMBLY - Complaint must describe enough facts to state a claim to relief that is plausible on its face - Increased requirement on to state some facts in complaint IQBAL - Must state a claim that crosses the line from conceivable to plausible (facial plausibility) - Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, will not suffice. - Complaint must include more than more than a formulaic recitation of a claim TWIQBAL - Changed pleading requirements now required to plead more facts - Grants judges more discretion in deciding whether to grant 12(b)(6) motions - Judges use common sense and experience to make these decisions - New standard makes it easier for judges to dismiss a complaint -

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C. SPECIAL PLEADING RULES RULE 9 1. RULE 9(a) Capacity or Authority to sue - loosens the requirement of the capacity to sue or be sued need not allege it has capacity/authority to sue or that has capacity/authority to be sued - But for to deny capacity to be sued must deny with a certain degree of specificity - Rationale: s have the facts to deny why they lack capacity to be sued; allows to make the claim without having to gather all the information simply to make a complaint RULE 9(b) Fraud or Mistake, Condition of Mind Fraud or mistake: must allege with particularity the CIRCUMSTANCES of the fraud e.g. who, what, when, where Conditions of mind such as malice, intent, knowledge can be alleged generally (no need for particularity) 9(c) if pleading that a conditions precedent has occurred or been performed can plead generally BUT if DENYING that a condition precedent has occurred or been performed must plead with particularity! 9(f) must plead time, place, nature of alleged misrepresentation greater emphasis on time/place than in regular pleading Claims of fraud must have particularized facts to support inference of fraudulent intent unsatisfied when the simply alleges that the s knew but concealed some things and knew or were reckless in not knowing other things Rationale for higher pleading standards: a. Fraud claims usually allow higher damages higher standard prevent parties taking advantage & claiming fraud w/out sufficient evidence b. has incentive to bring fraud claims to make system more efficient/less bogged down w/ fraud claims, force to plead with greater particularity so fraud claims are not as easy to make s CASES

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a) Stradford v. Zurich Insurance co. (2002; p.364) US Dist. Ct SDNY Facts: dentist makes fraudulent insurance claims to get $; counterclaims arguing s fraud Proc. Posture: motioned to dismiss counterclaims based in fraud for failure to state w/ particularity Issue: Whether stated w/ particularity the circumstances constituting fraud Holding: pled sufficient facts for intent, but did not meet particularity requirement Rule: 9(b) Analysis/Reasoning: s claim not particular enough to give fair notice of precisely which statement or action constituted s fraud When making a fraud claim, must satisfy the rule that the time, place, and natured of the alleged misrepresentations be disclosed to the party being accused of fraud D. RULE 15: AMENDING PLEADINGS 1. WHEN CAN A PARTY AMEND? - AMENDMENT ALLOWED BY RIGHT/AS A MATTER OF COURSE (RULE 15(a)(1)) Rule 12 Served Current Rules Within 21 days of service of rule 12(b), (e), or (f) motion Responsive pleading served Within 21 days No responsive pleading served 22 days

Once amended pleading served party served must respond within time remaining to respond to original pleading or w/in 14 days of amended pleading, whichever is longer Responsive pleading/ Rule 12 motion may trigger to amend complaint to include important/relevant allegation amendment of right allows this, promotes efficiency by not requiring leave of court WHEN CAN A PARTY AMEND? - Leave of Court/Prejudice (Rule 15(b))

2. 1.

After 21 days from responsive pleading, Rule 15(b) allows party to amend w/ leave of court during or after trial (or even after judgment) to: Conform to evidence Reflect an issue tried by express or implied consent of parties Permit the raising of new issues at trial Court should freely permit an amendment when doing so will help party present merits of case Restrictions: Will amendment prejudice the other party? Cannot raise claim that party had no opportunity to prepare for/would prejudice opposing party Party opposing amendment has burden of proving prejudice Has party seeking amendment been dilatory in its failure to amend when it had opportunity to? Early in litigation judge likely to allow Longer you wait to amend worse chances for motion being granted Judges fairly accommodating and lenient in granting leave Reasons for denial of motion to amend: 1. Late in litigation, e.g. discovery has been completed Earlier in litigation process opposing party less prejudiced b/c can use discovery to get information to counterclaim the amended complaint 2. Amendment is for a legally insufficient claim 3. Clear prejudice to opposing party 4. Amending party bad faith 5. Party failed to amend when it had another opportunity to do so if party had not been diligent in amending when they should have/could have judge likely to deny CASE i. Beeck v. Aquaslide (1977) after SOL has run, realizes mistake moves to amend complaint to deny manufacture of

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slide and liability for accident Facts: seriously injured using waterslide; realizes it did not manufacture slide after SOL has run moves to amend complaint to deny manufacture Issue: Whether the s leave to amend should be granted Holding: Trial ct. did not err in allowing to amend Rule 15(a)(2) leave to amend should be freely granted unless there is undue delay, bad faith, dilatory motive, prejudice to other party. Burden of proving prejudice is on the opposing party Analysis/Reasoning did not meet burden of proving prejudice; can add another party that did manufacture the slide on basis of equitable estoppel (estop this new from claiming SOL b/c it would be unfair to do so) Weirdness: ct claims would not be prejudiced, but b/c the slide was a counterfeit, there is no way to determine who manufactured it and thus is left without relief Once an issue is joined in a lawsuit, a party may amend his pleading only with the opposing partys written consent or the courts leave.

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CAN THE PARTY AMEND? - RELATION BACK (15(c)) Relation back amendment will be treated as if filed on date of original complaint Same T/O? as original complaint no need to worry about SOL a claim Allows party to add new claims after SOL has expired 15(c)(1) if amendment adds another party, party to be joined: must receive notice of the action in a way that will not prejudice party in defending on the merits notice does not have to be official, can be by word of mouth Party must have known (or should have known) that the action could be brought against it Appeals court review Trial court grants/denies motion to amend losing party appeals On appeal, standard of review = abuse of discretion standard did trial court abuse its discretion in granting/denying motion to mend/? Deference to trial court granting/denying leave to amend lies w/in discretion of trial court Case i. Bonerb v. Richard J. Caron Foundation (1994) U.S. Dist Ct Facts: injured while playing bball at rehab center; motions to amend to make claim more specific Issue: Whether amended complaint sufficient relates back to allow to amend Holding: yes, amended complaint relates back Rules: Rule 15 if time for amendment by right has expired, party may request leave of court to amend and should be granted if amendment relates back to original T/O Analysis/Reasoning: An amendment which changes the legal theory of the case is appropriate if the factual situation upon which the action depends remains the same and has been brought to the s attention by the original pleading (lessens surprise to opposing party); the claim arises from same set of operative facts which provided with sufficient awareness that this claim could be brought ii. Moore v. Baker (1993, p.409) 11th Circuit botched surgery case filed on last day before SOL Facts: signed consent form for surgery; surgery resulted in permanent disability; filed motion to amend on last day permitted by GA SOL, sought to amend from claim of no informed consent general claim of malpractice Issue: Whether s amended complaint relates back to the original complaint to allow amendment Holding: s complaint does not arise of out the same T/O as original complaint; does not relate back, amendments barred by SOL Rule: Rule 15 Analysis/Reasoning Sought to amend from specific general; the original complaint did not give sufficient notice to that such an amended complaint may be asserted Too much surprise for opposing party

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5. SUPPLEMENTAL PLEADING S- 15(d)

New facts arise after date complaint filed motion for supplemental pleading, NOT motion to amend ALWAYS requires leave of court

E. RULE 11 SANCTIONS!!!! REMEMBER DOES NOT APPLY TO DISCOVERY!!!! 1. Law of attorney conduct specific to pleadings and other filings to the court Signed paper every pleading, written motion, & other paper MUST BE SIGNED by at least one atty or party if unrepresented Filing/submitting paper Advocating contents of the paper to the court/presenting a matter in a signed writing to the court (advocating item not in a written paper does not expose party to Rule 11) 2. Rule 11 requirements: i. Prohibits improper purpose (harassment, delay) ii. Requires legal basis for claim o E.g. cannot bring claim if there is a binding precedent that conflicts w/ your reasoning iii. Must have factual support for allegations or reasonable likelihood of obtaining info during discovery iv. Any defenses/denials must have evidentiary support, reasonably based on belief, or lack of info Sanctions a) Who can be sanctioned?? o Court can impose sanction on attorney, law firm, or party that violated rule or is responsible for violation o Law firms usually held jointly responsible for violation of an employee b) What can sanctions include? o 11(c)(4) limited to what suffices to deter repetition (deter both this party and others in the future) o Penalty to court, attorneys fees to opposing party c) How? 1) Sanctions initiated by opposing party Must serve motion on opposing party & allow 21 days for party to cure deficiency safe harbor period If violation is cured no motion filed w/ court If not cured bring motion to court Motion must be made SEPARATELY from any other motion 2) Sanctions initiated by Court Court must issue show cause order Allow party to explain how they did not violate Rule 11 Often allows party to amend the issue 4. Limits on Rule 11 Does not apply to discovery, discovery requests, responses, objections, and motions Does not apply to oral communications b/t the parties only written forms submitted to court or if advocating a written position in court Monetary sanctions cannot be imposed on a represented party for violating 11(b)(2) legal basis for claim party not required to know basis for legal claim atty. responsibility Monetary sanctions cannot be issued unless it issued show-cause order Cases a) Walker v. Norwest Corp. (1996, p.377) 8th Circuit Ct. Facts: Filed in fed. ct. on state claims; no complete diversity but s attorney failed to amend or dismiss despite warning Issue: Whether sanctions should have been imposed on for failure to amend or dismiss based on lack of complete diversity Holding: Yes sanctions should have been awarded against the s atty for filing a diversity case that did not had complete diversity Rule: Rule 11(b)(2) the s attorney did not have a legal basis for bringing claim in Fed. Ct. Analysis/Reasoning: it was Walkers burden to plead the citizenship of the parties when attempting to invoke diversity jurisdiction; not the courts job Weirdness: the s lawyer did not abide by the 21 day safe harbor rule, so court probably WAS in error for granting

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sanctions based on a procedural error of the s lawyer for failing to abide by the 21 days b) Christian v. Mattell (2003; p. 381) - 9th Circuit Claudene Doll o Facts: created Claudene doll; Mattell sues for copyright infringement which it clearly had; s lawyer refuses to dismiss even though claim is clearly frivolous (throws doll across the table) o Procedural posture: sanctions imposed on , requiring payment of Mattells attorney fees o Holding: Sanctions were appropriate s attys conduct was in violation of Rule 11; BUT b/c of possible intertwining of Rule 11 violations and other misconduct (but not Rule 11 violation) case remanded for trial court to delineate b/t Rule 11 violations and other general atty misconduct (e.g. throwing Barbie across table at opposing counsel o Rule: 11(b)(3) no factual basis for claim, failed to withdraw or amend complaint o Analysis/Reasoning reasonable investigation would have revealed no legal/factual basis for copyright claim; but district courts apparent consideration of non-pleading misconduct (i.e. not under Rule 11) requires remand to separate Rule 11 violations from other misconduct c) Brown v. Ameriprise (2011) o Facts: cut-and-pastes complaint from other case alleging discrimination even though no factual support for claims; s atty signed complaint o Issue: Whether Rule 11 sanctions are warranted even after case has been dismissed o Holding: Yes allegations copied verbatim w/out evidentiary support; dismissal of case does not preclude Rule 11 sanctions o Rule: 11(b)(3) requires reasonable inquiry into the factual allegations in a complaint before it is filed to ensure claims have evidentiary support o Analysis/Reasoning: must adequately plead a claim b4 getting to discovery, not the other way around;

JOINDER OF PARTIES & CLAIMS RULES 13, 14, 18, 19, 20, 24
A. RULE 13: COUNTERCLAIM AND CROSSCLAIM - Allows to bring any and all claims she may have against even if not same T/O! - Counterclaims can also be brought by any party against an opposing party 1. 13(a) Compulsory Counterclaims Must be same transaction/occurrence Compulsory counterclaims If original claim filed in Fed. Ct., court will have jurisdiction over compulsory counterclaims even if ordinarily it would be a state claim USC 1367 Supplemental jurisdiction extends to any claims that form part of the same case or controversy Purposes of 13(a) provide complete relief to the who has been brought involuntarily into lawsuit efficiency if two claims overlap, it is inefficient to have two trials, could lead to inconsistent results 2. If compulsory counterclaim not brought claim is waived If party has claims against opposing party at time of service: claim is COMPULSORY If claim arises AFTER time of service: NOT compulsory If the claim is subject to another pending action, not compulsory

13(b) - Permissive Counterclaims can bring ANY claim against no requirement of same T/O If counterclaim is usually a state claim and case is in Fed. Ct. Fed. Ct. DOES NOT have jurisdiction over state-law permissive counterclaim court CANNOT hear claim Permissive counterclaims must have an independent jurisdictional basis Permissive or Compulsory?? Why does it matter? Jurisdictional reasons!! Logical relations test Majority rule are the 2 claims logically related in any way? Do the claims derive from same underlying set of facts, even if subset of facts relevant to each claim differs? - claims must arise from same aggregate of operative facts

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13(a) Cases i. Plant v. Blazer Financial Services debt collection; Truth-in-Lending-Act violation; jurisdictional issues b/c of counterclaim An action on an underlying debt in default is a compulsory counterclaim that must be asserted in a suit by the debtor on a truth-in-lending cause of action A permissive counterclaim must have independent jurisdictional basis; compulsory counterclaim falls within ancillary jurisdiction 13(g) Crossclaims Claim against a co-party (e.g. 1 makes claims against 2) Claims must arise from same T/O as original complaint once this claim is made, co-s can make any and all claims against each other Crossclaims optional, not compulsory, but once party is served w/ cross-claim, if the served party has a claim arising from the same T/O as cross-claim, claim is considered compulsory and must be brought

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B. RULE 14: THIRD PARTY PRACTICE (IMPLEADER) 1. Requires Derivative Liability If I am liable, he/she has to pay ME, he/she is liable to ME NOT its him, not me E.g. insurance policy with indemnity clause E.g. co-sign note as guarantor for loan; if defaulted and sued for non-payment, co-signer can be brought in as derivatively liable Allows to seek contribution or indemnity from another responsible party 2. Procedure/Terms Party being impled = third party Original seeking impleader = third party 3rd party and 3rd party must act as regular and rules of compulsory counterclaims apply (14(a)(2)) both compulsory and permissive counterclaims apply Original can bring claims against third-party (14(a)(3)) must be related to same T/O as original lawsuit Common situations for impleader i. Joint and Vicarious liability Two parties, both liable One party can seek contribution (in case of joint liability); or One party can seek indemnity (vicarious liability) If has sued only one party, may move to join the other parties to assert contribution/indemnity claim ii. Contractual Duty to Indemnify 3rd party has agreed in a K to indemnify 3rd party for sums 3rd party must pay original

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Rationales i. Efficiency more efficient to have all parties in one suit ii. Helps avoid inconsistent verdicts all claims can be worked out in one suit iii. Requires derivative liability rather than same T/O b/c is the party in control of litigation; allowing to bring in other co-s not derivatively liable reduces autonomy cannot be used for its him, not me claims Cases i. Price v. CTB., Inc. (2001, p.755) M.D. Ala. Facts: hired Latco to build chicken houses which fall apart; Latco moves to implead ITW, nail manufacturer Holding/Rule: legal basis exists to implead ITW Rule 14 allows to implead any party who may be liable; court can permit development of factual record to determine extent of liability. Third party liability must in some way be derivative of original claim; must be trying to pass all or part of the liability onto the impled party ii. Fischbach v. Capital One Bank (2011) Dist. Ct. MN Facts: signed as guarantor on daughters CC w/ Capt. One; sued in wrong jurisdiction when daughter defaults b/c she didnt notify of address change; claims knew where he lived b/c they accessed his credit report; alleges violation of FDCPA; bank attempts to implead s daughter; moves to strike third party complaint

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Issue: Whether the should be allowed to implead s daughter Holding: Bank should be allowed to implead s daughter Rule: 14(a) indemnity or contribution are not required for impleader; as long as third party somehow liable to 3rd party Analysis/Reasoning: b/c s daughter signed agreement requiring her to update address, she is liable to b/c the reason they sued in wrong jurisdiction was b/c of her if they are liable for this mistake, she is also liable to them; it was foreseeable that her failure to update address could have adverse consequences for her father Weirdness: Prof. Cox finds the cases outcome odd the foreseeability argument is a bit far-fetched, considering she was a teen when she got the CC and likely did not foresee a failure to change her address as potentially resulting in her dad being sued in WI

C. RULE 18: JOINDER OF CLAIMS 1) Permits joinder of claims, counterclaims, cross-claims, even if not related - A party asserting a claim, counterclaim, crossclaim, or third party claim may join, as independent or alternative claims, as many claims as it has against an opposing party 2) As , you can bring any claim you want!! - Same T/O NOT REQUIRED - (But just b/c you can, does not mean you should!! see Gurman, complaint should not be a kitchen sink) - If case is in federal court, parties ability to bring claims limited by subject matter jurisdiction 3) Claims can be inconsistent with each other D. RULE 19: REQUIRED JOINDER OF PARTIES *RULE 19 IS NARROW must show a compelling reason to bring in a party; high standard for bringing in a party 1. WHO? 19(a) i. A party is required/should be joined if feasible when: 1) Absence precludes complete relief 2) Absence may prejudice missing or existing party Impair/impede required partys ability to protect her interest May leave existing party w/ risk of incurring double, multiple, or otherwise inconsistent obligations If joinder not feasible? 19(b) four factors must be weighed! 1) Degree of Prejudice o Will unjoined partys interests be prejudiced/impaired? Stare decisis as impairment will partys ability to bring a lawsuit be precluded by the judgment? o Will existing partys interest be prejudiced? 2) Can prejudiced be lessened/avoided? 3) Will judgment be adequate w/out party? 4) Will have adequate remedy w/out party?

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iii. Involuntary joinder If party refuses to join, can be made involuntary or 2. a. How to Join? 12(b)(7) Motion failure to join a required party Court may allow to amend and join b. Joinder by Court Order (19(a)(2)) Cases i. Temple v. Synthes (1990, p.771) Facts: underwent surgery to implant device in back; device manufactured by Synthes; after surgery screws broke; makes 12(b)(7) motion alleging failure to join required party/joint tortfeasors - doc & hospital Procedural Posture: Dist. Court ordered joinder w/in 20 days; failed to join; suit dismissed w/ prejudice Issue: Whether the doctor and hospital were an indispensable party and were required to be joined under Rule 19

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Holding: Parties NOT indispensable - parties were merely permissive Rule: Not necessary/required for all joint tortfeasors to be named as s in single lawsuit this falls under Rule 20(a)(2) - Tortfeasors with the usual joint and several liability are merely permissive parties to an action against another with like liability Why would lower courts think joinder required? lower courts focused on judicial economy/efficiency more efficient to do all claims in one suit; SCOTUS concludes this was abuse of discretion Helzbergs Diamond Shops v. Valley West Des Moines Shopping Center (1977, p.774) 8th circuit ct. Facts: in K, agreed not to least to any more full-line jewelry stores; entered lease w/ Lords for retail specialty store, but store intended to operate full-line store; sues Issue: Whether Lords is an indispensable party and thus required to be joined Holding: No Lords cannot be joined b/c of lack of jurisdiction, but Lords not indispensable, suit can continue without Lords Rule: 19(b) - A person does not become indispensable to an action to determine rights under a K simply because that person's rights or obligations under an entirely separate contract will be affected by the result of the action Analysis/Reasoning: any inconsistent obligations owed by to and Lords are a result of s own voluntary execution of two lease agreements; Why did Court decide this way? - Court could have dismissed case and directed to file suit in a court w/ jurisdiction over Lords (Court was unsympathetic to who had caused its own issues by entering into incompatible Ks)

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E. RULE 20: PERMISSIVE JOINDER OF PARTIES 1. Plaintiffs can be joined if: a) They assert any right to relief jointly, severally, or in respect to/arising out of same transaction/occurrence or series of transactions/occurrences; and b) Any question of law or fact common to all s will arise in the action 2. Defendants can be joined if: a) Any right to relief is asserted against them jointly, severally, or with respect to/arising out of the same transaction/occurrence or series of transactions/occurrences; and b) Any question of law or fact common to all will arise in the action 3. Once in the lawsuit as a joined party can bring any claim, even those unrelated to original T/O

Reasons for Joinder a) Strengthen s claim E.g. discrimination case multiple s with claims of discrimination strengthens claim, suggests company-wide policy b) Efficiency/cost effectiveness c) Prevent multiple lawsuits and potential inconsistent verdicts Cases c) Mosley v. General Motors Corp. (1974) Facts: Employment discrimination case w/ 10 employees alleging racial and gender discrimination Proc. Posture: dist. ct. ordered 10 separate trials based on conclusion that complaints did not arise out of same T/O Issue: Whether joinder should have been allowed Holding: A company-wide policy purportedly designed to discriminate against blacks in employment arises out of the same transaction/occurrence joinder should be allowed Rule: 20 Permissive joinder Reasoning/Analysis purpose of Rule 20 is to promote trial convenience and efficiency; all s were filing civil rights claims and all were about companys discriminatory police sufficiently related to allow joinder

4.

F. RULE 24: INTERVENTION (strangers with an interest) - Allows strangers to the lawsuit to join as parties in order to protect their rights or interests - Intervention as a matter of right (24(a)) versus Permissive Intervention (24(b)) 1. Intervention of Right 24(a) a. Statutory right to intervene; or b. Timely motion c. Interest in subject matter; and d. Interest impaired or impeded as practical matter; e. Not adequately represented by existing party Permissive Intervention 24(b) Same transaction/occurrence requirement Cases

2. 1.

(a) Natural Resources Defense Council v. United States Nuclear Regulatory Committee 1978; p.781) Facts: sought declaratory & injunctive relief to prohibit NRC and NMEIA from issuing licenses for uranium mill w/out an envi. impact statement. Bunch of other oil/mining corps want to join! Proc. Posture: United Nuclear Corps motion to join granted (had already been given license from NRC); motion of other parties had been denied; denial appealed Issue: Whether the other corporations should be allowed to join Holding: Yes the parties claimed an interest to the subject matter of the action; the outcome of the case could impair or impede their ability to protect their interest; and even though situations of the different parties are similar, there is the possibility of a divergence of interest making the existing party inadequate representation When determining whether to allow a party to intervene, it is too narrow of a construction of Rule 24(a)(2) to

13

require the movant to have a direct interest in the lawsuit Rule: 24 Analysis: if s injunction granted interests impaired b/c they will be unable to get licenses for uranium mills The court is not limited to consequence of a strictly legal nature but can also consider any significant legal effect in the movants interest (e.g. stare decisis effect) (b) ACLU v. Mohammed (2011) ACLU sues charter school for promoting Islam, parents want to intervene Motion was untimely. Facts: ACLU sues charter school for allegedly promoting Islam, parents want to intervene Proc. Posture: parents of students motioned to intervene on behalf of their children; district court held parents did not have standing and their motion was untimely; parents appealed Issue: Whether the parents have standing to intervene and whether their motion was untimely Holding: parents had standing BUT their motion was untimely Rule: FOUR FACTOR TEST: Timeliness of a motion to intervene should be evaluated in terms of four specific circumstances: 1. The extent the litigation has progressed at the time of the motion to intervene; 2. The prospective intervener's knowledge of the litigation 3. The reason for the delay in seeking intervention; and 4. Whether the delay in seeking intervention may prejudice the existing parties Analysis/Reasoning: the parents had adequate time/notice to make motion; no good justification for the delay; intervention could be prejudicial for the other side b/c bringing claim under new legal theory could change opposing partys strategy (c) Martin v. Wilks (1989; p.787) Facts: litigation began w/ NAACP filing class action complaints against city and Board for discriminatory practices in fire depts multiple suits; White firefights knew of the original suit but did not seek to intervene in the suit Issue: whether the African American FFs motion to intervene should be granted Holding: Yes A party seeking judgment binding on another cannot obligate that person to intervene, he must be joined; one is not bound by a judgment in which he is not designated as a party or to which he has not been made a party by service of process Rule: 19(b) Analysis/Reasoning: SCOTUS places burden on the city/board to have joined white FFs in original suit Rule 19 Rule 19 required city/board to bring FFs into first suit b/c they knew/had reason to know that white FFs intersts would be impaired/impeded by the decision; OR Onus was on NAACP (original ) to join the parties in the original suit parties in original case should have sought mandatory joinder to bring in white FFs b/c they had knowledge of the persons whose interests might be affected by outcome of case G. RULE 23: CLASS ACTIONS 1. 23(a) Four Requirements for Class Certification ALL have to be fulfilled!!! a. Numerosity there has to be so many individuals involved that joinder would be impossible/impractical b. Commonality must be a common question of law/fact between s ONE common question law/fact is sufficient does not have to be all c. Typicality representative s concerns must be typical of the class (rep. can be one or more persons or an agency) d. Adequacy is rep adequate? Can the rep do what it needs to in order to represent class (e.g. are they available, competent, etc.) Are the attorneys representing the putative class adequate? Are they capable of bringing this type of litigation as a class action? 2. Once 23(a) is fulfilled must fulfill 23(b)

Types of Class Actions 23(b) a. b. 23(b)(1) - individual actions pose risk of inconsistent/incompatible outcomes; or results would dispose of the other members or impair/impede ability to protect those interests 23(b)(2) Injunctive/Declaratory relief (e.g. class seeks injunction regarding discriminatory hiring practices of

14

c.

employer) 23(b)(3) most common but also more difficult to be certified as Common questions of law or fact PREDOMINATE; AND Class action is SUPERIOR to other available methods to fairly and efficiently adjudicate controversy If class is seeking monetary damages usually requires certification as 23(b)(3) class Testing predominance/superiority: To what extent do class members have interest in controlling litigation? Is litigation of claims by/against class members already pending? Is the chosen forum desirable? What difficulties will there be of class action?

3.

Class can be broken down into subclasses if necessary

Notice to class - 23(c) a. For 23(b)(3) classes - Notice and opt-out are REQUIRED (not required in (b)(1) or (b)(2)) b. rep must bear cost of providing notice one reason why adequacy of rep is important c. Rationale for Opt-Out if case goes all the way to trial and class loses on the merits other individual class members cannot bring their own individual actions opt-out allows individuals the option of seeking their own lawsuit (Claim preclusion) Risk of Class Actions Class certification typically occurs AFTER discovery may go through expensive discovery and then be denied when you seek class certification this is why adequacy of attorneys is important! Attorneys drive class actions, NOT the lawyers often find the case, build the case, and THEN find a representative Class certification decisions are technically not appealable until after a case is decided BUT or can seek an interlocutory appeal (sought PRIOR to final judgment/end of the case; has to be asked for) Because the whole reason for the case was to do it as a class action, judges may grant the interlocutory appeal b/c without class certification, may not want to continue can also seek interlocutory appeal if the class is certified do not want to go through the entire class action suit (VERY EXPENSIVE) only later to appeal the certification and have the certification reversed this would be highly inefficient) Cases a. Communities for Equity v. Michigan High School Athletic Assoc. (1999) US Dist. Court Facts: Title IX gender discrimination in sports seeking 23(b)(2) certification Holding/Rule: Rule 23 Prerequisites fulfilled: Numerosity claim suggests thousands of current and future female athletes Commonality all claims stem from Title IX, Equal Protec. Cl. And Minn. Comp. Laws Typicality some distinction b/t particular claims of named s and diverse claims does not preclude typicality just b/c rep has not suffered all claims of discrimination does not make her inadequate Adequacy if female athlete does not feel adversely affected, her interests will be rep. by ; class counsel adequate, has experience w/ Title IX cases b. Atwood v. Johnson, Rodenburg, & Lauinger (2011) U.S. Dist Ct. MN consumer debt collection Facts: Consumer debt collection; alleging violation of FDCPA; seeking 23(b)(3) certification Holding: motion does not fulfill requirements of 23(b)(3) did not show that common questions of law/fact of class members predominate; has not shown that class action is superior to individual lawsuits Rule: 23(b)(3) To be certified as a class, must show that questions of law or fact common to the class members predominate over individual claims and must show class action is superior means of litigation Analysis: Bringing claims as class substantially decreases damages individual s can receive class action therefore not superior. Class action would harm individual members by proceeding as a class

4.

5.

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MOTIONS FOR JUDGMENT AS A MATTER OF LAW RULES 41, 50, 55, 56,
A. RULE 41: DISMISSAL 1. Rule 41(a)(1): Voluntary Dismissal a. How/When? i. Without Approval of Court can voluntarily dismiss w/out leave of court BEFORE has answered or filed motion for summary judgment (if makes 12(b)(6) motion, can still voluntarily dismiss) ii. Dismissal by stipulation at any time during case, even during trial, can dismiss by filing written stipulation of dismissal that has been signed by all parties who have appeared in the case iii. By Court Order if one or more appearing parties refuses to agree to dismissal and has served answer or motioned for summary judgment dismissal by court order is only option. Dismissal by order can occur at any time during case Exception: if counterclaim filed & who counterclaimed disagrees w/ dismissal court cannot dismiss s claim unless it can retain jurisdiction over counterclaim b. c. Unless otherwise specified voluntary dismissals are without prejudice Strategy: Why Voluntarily dismiss? may realize her claims are not as strong as she thought may realize litigation will be too costly

2.

Rule 41(b) involuntary dismissal a. Grounds for involuntary dismissal i. Failure to prosecute fails to move the case along if fails to take action to allow case to proceed can motion for the case to be dismissed ii. Courts usually require that the be prejudiced in some way by s failure to prosecute iii. Failure to comply with court order b. Effect of involuntary dismissal i. Unless dismissal is for lack of jurisdiction, improper venue, or failure to join party under Rule 19, involuntary dismissal operates as adjudication on the merits ii. cannot sue again (Claim Preclusion) Hawes v. Blast-Tek (2010) U.S. Dist. Court MN - injured by sandblaster, sues three companies turns into a cross-claim free-for-all; opposes co-s motion for summary judgment; agreed should be dismissed Facts: injured by machine, sues 3 companies cross-claim free-for-all between s; opposes co-s motion for summary judgment even though agreed the two moving s should be dismissed Holding: cannot oppose a co-s motion for summary judgment when the agrees the parties should be dismissed from the case; the is the master of his claims and in the absence of the s cross-claims against the motioning parties, there is no basis to deny the summary judgment motion

3.

Cases a.

B. RULE 50(a): JUDGMENT AS A MATTER OF LAW DIRECTED VERDICT 1. Judge decides the case before it gets to the jury Method for judge to control jury [sidenote: Other methods of judge controlling juries: i. Evidence judges can control what evidence jury gets to hear/what evidence is admissible ii. Sequester juries/isolate them from outside info iii. Jury Instructions shape what the law is iv. Questions, comments, demeanor of judge ] 2. 50(a) Standard: No reasonable jury could find a legally sufficient basis for a verdict No legally sufficient evidentiary basis to find for the party on that issue Factual Record: Trial testimony/documents TIMING: When can it be made? a. Any time before the case goes to the jury and after a side has been completely heard - a party cannot motion for JMOL

3. 4.

16

b. c. 5.

unless the opposing party has been fully heard rests commonly moves for JMOL End of all evidence/testimony either or can motion for JMOL

Policy Considerations a. When should judge grant a 50(a)? Granting 50(a) prior to trial means that judge will not have to overturn jury if they get it wrong Denying 50(a) allows jury have a chance to get it right b. What is the precise standard? What evidence should be considered? The general agreement is that court should consider all evidence in a favorable way to when motions viewed in the light most favorable to the non-moving party Cases a. Chamberlain (1933) p.602 SCOTUS FACTS: RR death by collision; 3 employees in position to see testify no collision; 1 witness for inferred collision, did not actually see Proc. Posture: Rule 50(a) case Issue: Whether presented at trial enough evidence to survive directed verdict Holding: No conflicting facts Rules: If same facts lead to 2 conflicting conclusions and neither one can be established JMOL must go against party w/ burden of production BUT this is a close case Analysis/Reasoning: 1 witness did not see crash did not establish an actual fact necessary to be put to jury, it was mere inference; testimony looks especially bad compared to 3 witnesses Weirdness about this case: the judge seems to have weighed the evidence in directing verdict for judge not supposed to do this what happened to light most favorable to non-moving party (the )?

6.

C. RULE 50(b): JUDGMENT NOT WITHSTANDING THE VERDICT 1. Post-Trial Motion; after verdict Renewal of 50(a) POTENTIAL TRAP: YOU MUST MAKE A 50(a) MOTION TO BE ALLOWED TO MAKE A 50(b)!! Making 50(a) preserves your right to make a 50(b) No 50(a) No 50(b) 2. 3. 50(b) Standard: No Reasonable jury could have reached this conclusion under the law; jury verdict contrary to law Factual Record: All trial Testimony

D. RULE 55: DEFAULT JUDGMENT 1. Entry of default (55(a)) - Who can default? a. defaults if fails to file pre-answer motion or answer Default if fails to answer/defend w/in 21 days of service; or 60 days if service waived b. can default if fails to respond to counterclaim Default if no response w/in 21 days of service of counterclaim c. Parties served with cross claim respond w/in 21 days or default Sum certain 55(b)(1) vs. no sum certain 55(b)(2) a. 55(b) default by clerk - allow you to default w/out having to do anything Sum certain sum that can be made by calculation (e.g. promissory note, loan, etc.) Classic case: debt collection; clerk can enter default rather than requiring hearing saves money; quick and easy default when, as , you know you owe the money and you have no defense b. 55(b)(2) court No sum certain or other 55(b) exception hearing required; claimant must motion to have default netered by court Effect of Default a. Most facts alleged in pleading deemed admitted

2.

3.

17

b. 4.

Claims/defenses waived

Cases a. Peralta v. Heights Medical Center (1988) SCOTUS unpaid employee hospital debt, defaults, property sold to collect on debt Facts: defaults on unpaid employees hospital debt; s property sold to collect on debt; claims he was not properly served Holding/Rule: Default judgment is not void for defective service even if defaulting party lacked meritorious defense to initial claim Procedural errors that deny due process provide grounds for dismissal of default Analysis/Rule: Had Peralta been effectively served, could have impled another party, could have answered, could have paid debt, etc. TX law violated due process Even though Peralta lacked meritorious defense default judgment unfair b/c may have had other ways to deal w/ complaint if he had been properly served

E. RULE 56: SUMMARY JUDGMENT - Summary judgment is critical b/c it is the first time the court is weighing more than just the allegations of the complaint court is now looking at the evidence - Provides parties with an indication of whether case will be disposed of or whether case will go to trial 1) Options for dispositive motions throughout process of litigation a) 12(b)(6) factual record = s complaint b) Rule 56 Summary Judgment (often made after discovery) Factual record = discovery information, affidavits, depositions, documents, etc. c) 50(a) judgment as a matter of law before case goes to jury; factual record = trial testimony d) 50(b) post-trial motion judgment not withstanding the verdict 2) Type of Summary Judgment a) No Question of law/No fact dispute No genuine issue as to any material fact Parties are not disputing the facts Question being asked: As a matter of law, which party would win? b) Question of proof/facts No question about the law Question being asked: has one party presented enough facts to make a claim? can present evidence that has failed to meet its burden of proof and claim enough facts ; if the fails to respond with evidence that creates a fact dispute motion for summary judgment may be granted Moving party establishes undisputed facts that warrant judgment as a matter of law c) Combination of (a) and (b)

3) Mechanics of Summary Judgment a) Party requests summary judgment by filing a motion b) Either party can motion for summary judgment c) When? 56(b) allows motion until 30 days after completion of discovery Party defending against a claim can motion for summary judgment at any time, even before it files response to the claim Claimant may serve motion for summary judgment after the makes its own motion for summary judgment or 20 days following commencement of action 4) Partial summary judgment party can seek summary judgment on particular claims o Can structure summary judgment to decide liability but not remedies o Can move for summary judgment to determine that certain facts are undisputed in order to narrow case 5) Evidence/Material Accompanying Motion o Affidavits

18

o o o o

All affidavits must be based on personal knowledge, must set out facts that would be admissible as evidence, and must show that the person making the affidavit is competent to testify on the matters covered by the affidavit. Testimony in writing, under oath Answers to interrogatories Transcripts of depositions Documents Declarations

6) 56(d) if the nonmoving party can show, by affidavit or declaration, that for specified reasons it cannot present facts to justify its opposition to motion for summary judgment court may defer considering the motion or deny it; allow time for non-moving party to do discovery party opposing motion can submit its own evidence supporting its side of the argument, including affidavits and memorandum opposing the motion 7) Celotex Standards a. The has the burden of actually creating a fact dispute b. has to point out that the has not its burden of proof c. Judge may give an opportunity to do some discovery to enable them to respond with evidence that there IS a fact dispute F. RULE 59: NEW TRIAL; ALTERING OR AMENDING JUDGMENT a. Not dispositive Does not resolve case for one party or another does not overturn the verdict Does not rely on same standard of presumptions in favor of non-moving party b. Two ways 59 is used 1) Soft version of JMOL No disposition of court in favor of one party over another Reboot start all over with new trial 2) Defect/Procedural issue in trial that gives party right to new trial c. Four Grounds for bringing 59 motion 1) Verdict is against weight of the evidence contrary to law Soft JMOL Easier standard than JMOL Rule 59 Standard: The verdict entered is against the weight of evidence 2) Procedural Errors Error in the evidence allowed to be admitted, jury instruction error, outside influences on jury etc. 3) Trial is Otherwise Unfair E.g. issues of counsel misconduct (e.g. bringing in evidence that had been ruled as inadmissible) 4) Excessive Damages Judge can refuse to grant 50(b) to reverse jury verdict and refuse to grant new trial for liability, BUT judge can conclude that damages were too high or too low Judge can grant new trial specifically/solely for new damage determination Usually only granted for damages being too high Remittur - jury returns excessive damage award Additur jury returns damages that are too low Not available in federal courts Judge will often give option force or to choose between change in damages or order ne trial Exception for punitive damages: many states allow punitive damages to be reduced without new trial G. SEQUENCING OF 50(b) AND 59 1) After trial two choices Rule 50(b) or Rule 59 Even if court grants 50(b), court must ALSO make conditional ruling on 59! 2) Sequencing: a. Losing Party at Trial Brings both 50(b) AND 59

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i. Both Motions denied Next Option: Appeal ii. 50(b) denied; New trial Granted Outcome: New Trial Not appealable b/c no judgment has been granted to appeal iii. 50(b) granted and decided in favor of losing party Rule 50(c) Conditional ruling MUST be given on Rule 59 motion Rationale: Efficiency grant of JMOL will usually be appealed if JMOL is reversed, the losing party could then argue for a new trial saves time on appeal All motions are made and decided on at the same time Party who wins reversal of JMOL can also appeal new trial Example: wins at trial; s 50(b) motion granted and conditional new trial appeals 50(b) 50(b) reversed can also appeal new trial, court will determine whether new trial is appropriate b. Party losing at trial brings 50(b) but no 59 i. Trial Court grants 50(b) party who loses 50(b) can move for new trial under 50(e) Denying the Motion for JMOL, Reversal on appeal ii. Trial Court denied 50(b) party can appeal denial; if appeals court reverses, losing party can motion for new trial iii. Example: wins at trial 50(b) motion 50(b) denied appeals 50(b) denial appeals court reverses and grants 50(b) can motion for new trial Cases i. Lind v. Schenley Industries (1960) p.611 3rd Circuit Facts: claims orally promised increase in pay, s secretary testified to the promises Procedural Posture: Jury entered judgment for ; moved for JMOL (50b) or new trial; both 50(b) and new trial granted; appealed . Issue: whether the Jurys verdict was contrary to the weight of evidence Holding: jury verdict not contrary to weight of evidence the issues were fairly straightforward and easy for the average juror to understand greater deference to jurys decision Rule: Rule 50(b) and 59 Analysis/Reasoning: when a trial is long, complicated, and revolves around complicated issues not well understood by laymen (aka juror), the judge should use greater discretion when reviewing the jurys decision; when the issues are easy to understand/commonly understandable requires less judicial scrutiny and more deference to the jury Policy concerns what is the role of the judge in reversing a jurys verdict? How much discretion should the judge have? How much deference should be given to the jury?

c.

H. NOTE ABOUT SETTLEMENT 1. Why Settle? o Settlements are cheaper, faster than trials o Allows negotiations, consent of both parties to the results o Controls risk trial outcomes can be unpredictable and all-or-nothing o Downside to settling: may get less than you would have at trial o Allows parties to agree to confidentiality if one party does not want information give to public Settlements are Contracts o Settlements are contracts!! must be interpreted under contract law o If there is a dispute over a settlement must look to contract law to determine if an enforceable settlement K was reached o Releases are also interpreted as contracts! o Parties can settle on some issues but leave others to the jury

2.

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DISCOVERY RULES 26-37

A) RULES 26(f) AND 16 SEQUENCE 1. No Discovery until AFTER 26(f) conference held and initial disclosures made - 26(f) conference required parties meet w/out judge to discuss how discovery will proceed After 26(f) parties must make initial disclosure at least 30 days before trial Rule 16 Conference held after 26(f) conference Often held before magistrate judge in federal courts Purpose: present 26(f) report to judge, adjust discovery deadlines, create scheduling order SCHEDULING ORDER IS IMPORTANT you HAVE to read it and know when you have to do certain things by Reason for scheduling order = efficiency (helps the case to move along) Forces parties to ensure discovery is done at a particular time Management of the case Improves flow of litigation

2. 3.

B) MECHANISMS 1. Rule 30: Depositions by Oral Examination 2. Rule 33: Interrogatories to Parties 3. Rule 34: Producing Documents, Electronically Stored Information, & Tangible Things, or Entering onto Land, for Inspection & Other Purposes C) RULE 26(b) DISCOVERY LIMITS RELEVANCE; PRIVILEGE/TRIAL PREP; BURDEN; SPECIFIC LIMITS ON EACH METHOD Info that cannot be obtained through discovery: (1) info irrelevant to case; (2) info that is privileged or related to trial prep; (3) info that places too much of a burden of some kind on responding party; (4) limits in each discovery mechanism 1. Relevance 26(b)(1) Parties may obtain discovery regarding any nonprivileged matter that is relevant to any partys claim or defense (narrower than previous requirement of being related to subject matter) must be reasonably calculated to lead to discovery of admissible evidence The info being sought does not necessarily having to be info to be used in trial only has to be info reasonably calculated to lead to discovery of admissible info The information must be for the purpose of proving an element of a claim/defense Privilege or trial preparation materials (attorney work-product doctrine 26(b)(3) + common law and statutory law privileges) a) 26(b)(5) party withholding info otherwise discoverable must expressly make claim of privilege b) Must describe the nature of the information (without giving info about substance) that is being withheld c) If privileged info accidently produced party claiming privilege must notify any party who received the info d) The party receiving privileged info must take reasonable steps to retrieve, return, sequester, or return info Question of burden -26(b)(2) Material may be relevant but may be excessively burdensome to provide (e.g. excessively expensive) Cumulative, duplicative, or can be obtained through another more convenient, less burdensome source Party seeking info has had ample opportunity to obtain info Burden or expense outweighs the infos likely benefit Can motion for protective order under 20(c) Specific limits on each type of discovery E.g. FRCP: 10 depositions unless given court order allowing more Cases a) Davis v. Precoat Metals (2002, p. 417) N.D. Ill. Facts race/national origin discrimination + hostile work environment; s seek to discover/obtain discrimination

2.

3.

4.

5.

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complaints made against other employees who worked at same plant during the same time as Issue: Whether the info sought by was relevant; whether motion to compel discovery should be granted Holding: the s requests seek discoverable info; s request was narrowly tailored to the specific claims of the case Rule: 26(b) Analysis/Reasoning: s limited discovery to info regarding the factory they worked in during the time they were employed NOT seeking info about ALL alleged discriminatory employment practices Material relevant to show pattern of discriminatory conduct Relevant to s claim that s reason for termination were pretext b) Steffan v. Cheney Facts: forced out of navy based on proclamation of his homosexuality; refused to answer depos about whether he had engaged in homosexual conduct Procedural posture district court dismissed action for s failure to comply with discovery under Rule 37 Issue: Whether the information sought by the in the depositions was relevant wants information b/c it would provide grounds to bring another case/provides grounds for dismissal Holding: Information not relevant; case should not have been dismissed Rules 26 and 37 Analysis/Reasoning: s assert that his statement of homosexuality was cause for the discharge, which has nothing to do with his conduct and therefore is not relevant Quirks about case: reaches appellate court by appealing dismissal of case, NOT by challenging order to compel discovery (which would have to wait until after an entire trial, THEN appeal decision based on being forced to provide irrelevant info) pled 5th Amendment In civil trial, taking 5th Amendment the party taking the depo gets inferences in its favor (deposing counsel may use this to its advantage ask leading questions every time the opposing party takes the 5th, the inference of the question is in deposing partys favor E.g. Have you ever engaged in homosexual conduct pleads 5th inference in favor of = yes, HAS engaged in homosexual conduct D) SPOLIATION 1. Common Law rule; not in the FRCP 2. Intentional or negligent withholding, hiding, altering, or destroying of evidence relevant to a legal proceed 3. Imposes duty to preserve evidence in anticipation of litigation if you have reason to believe this information would be relevant to or requested by the opposing party Requires forethought about what may be relevant in a lawsuit that the other side may want 4. Duty applies to possible, anticipated parties in the lawsuit 5. Cases a. Silvestri v. GM (2001; p.421) Facts: injured in car accident; hires accident reconstruction experts that concluded defective airbags; car not preserved; trial brought 3 years later Issue: whether the failure to preserve the car constituted spoliation and whether dismissal is warranted Ruling: Court has discretion to dismiss an action for the spoliation of a key piece of evidence, particularly when such conduct of the spoliator may have been either deliberate or negligent and becomes highly prejudicial to the Analysis/Reasoning: spoliation was highly prejudicial to GM b/c it denied them access to the only evidence from which it could develop an adequate defense should have reasonably anticipated the lawsuit, which is especially indicated by the lawyers hiring of accident reconstruction experts suggests he knew car was important E) 26(a) - REQUIRED DISCLOSURES 1. Required: a) Names/locations of witnesses likely to have discoverable info that the disclosing party may use to support its claim/defenses unless it is to be used solely for impeachment b) Locations/description of documents/tangible things that may be used to support its claims/defenses unless it will be used solely for impeachment c) Calculation of damages

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d) Copies of insurance agreements 2. Timing: Required Disclosures must be made either at the 26(f) conference or within 14 days of the 26(f) 3. Required disclosures force a party to make decisions early about whether or not they will use a particular witness or a particular document 4. Exception: unless the use would be solely for impeachment Exception to required disclosures is when the information being sought would be used solely for impeachment Impeachment = impeach the credibility of the other party or witnesses for the other party info is not being used to support your claim, it is being used to cast doubt on the other sides testimony 5. Supplementation of Disclosures: If party has fully complied w/ disclosure & later learns of additional witnesses or docs that it will use to support its claims/disclosures it MUST SUPPLEMENT/CORRECT its disclosure in a timely manner!! 6. Strategies a. 26(a) can be used to convince the opposing side to give up/settle b. If information is not technically required under 26(a) b/c it will be used for impeachment, a party that wants to promote settling may choose to disclose the info to try to show weaknesses in partys claims and to force settlement c. If party WANTS to go to trial withhold info that would be used for impeachment and wait until trial F) EXCEPTIONS: PRIVILEGE/TRIAL PREP - 26(b)(3); 26(b)(5); 26(c) 1. Privilege includes things like attorney-client work privilege; doctor-patient privilege; clergy; marital privilege; executive privilege; right against self-incrimination (5th Amendment) 2. Privilege/Trial Prep = a reason NOT to produce/disclose information EVEN IF IT IS RELEVANT 3. Trial Prep often referred to as attorney work product not technically a privilege; it is simply a right against disclosure b/c the documents being kept from disclosure are those the atty is using in prep for trial (all about the mental impressions of the atty) Information included under trial prep any document/info created in anticipation of the trial Trial prep does NOT protect the underlying facts the underlying facts are discoverable What is NOT discoverable: the work product/mental impressions/legal theories of the attorney/how the attorney translated the information through her brain Rationale: Trial Prep exists to protect mental of the atty so that they can write things down w/out the fear that it will have to be disclosed 4. Overcoming Claim of Trial Preparation a. Inability to obtain info: if the information cannot be obtained by any other means/cannot be replicated may be discoverable (e.g. if the witness whose testimony is in the document has died/disappeared) b. Previous statements a party/person can request, without the required showing, a previous statement made by that party/person 26(b)(3)(C) 5. Hickman v. Taylor (1947, p.442) SCOTUS FACTS: Tug boat sank; crew members died. attorney, anticipating litigation, took witness testimonies; got witnesses to sign written statements. seeks to discovery written statements, interrogatories of exactly what remembers about oral statements of survivors; and copies of any other docs prepared about these oral statements Issue: Whether the information sought by was protected under Trial Prep privilege Holding: Even though the info being sought was relevant and not privileged, the cannot discover the info prepared/formed by an adverse partys counsel in the course of his legal duties Rule: Analysis/Reasoning: it is essential that a lawyer work w/ a certain degree of privacy; free from unnecessary intrusion by opposing parties and their counsel; privacy in the course of an attys trial prep is essential to an orderly working of the system of legal procedure; burden rests on party seeking the info to establish adequate reasons to justify production NOTE:***If the witnesses had died or were otherwise unavailable for the to depose the info MAY have been discoverable!

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G) LIMITS TO DISCOVERY: BURDEN 1. 26(b)(2)(C) Need to limit scope of your request to decrease burden on other party/person make it as narrow as feasible increases chances that the court will not try to limit/disallow your request for being too burdensome/duplicative/expensive, etc. Court can limit if it deems that burden outweighs benefit 2. 26(c)(1): The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following a. Protective orders allows court to enter protective order limiting discovery when needed to protect person from annoyance, embarrassment, oppression, or undue burden or expense b. Private information if info you are discovering involves private info, may still be discoverable if relevant and not sole purpose of embarrassment/harassment, etc. c. Must have good faith reason for seeking the information d. Courts will usually try to find compromise b/t allowing any information to be obtained and allowing NO information to be obtained

3. Objecting to Deposition Questions a. Objection based on form of the question objection will be noted in the deposition record but deposition will continue, question must be answered; if the information is irrelevant no need to get judge involved. Only reason to get judge involved is if party attempts to use the irrelevant information in trial b. Objection based on privilege if a protective order has previously been granted by judge and there is a question about whether the question is seeking privileged info, parties have to go off the record, call judge to get judges ruling on whether question can be asked (this will not make the judge happy should be avoided if possible!) 4. Stalnaker v. Kmart Corp (1996, p.455) Dist. Ct. Kansas Facts: claims sexual harassment by employee, seeks depositions of other employees about their sexual relationships; moves for protective order, claims info being sought is private/embarrassing Holding: Court compromises allows to depose employees; limits questions to information regarding sexual conduct with/involving the specific employee, but not with others; although information is highly person, information is relevant to s case Rule: 26(c)(1)(A) and (D) permits court to enter protective orders totally prohibiting or limiting scope of certain discovery mechanisms Analysis/Reasoning: voluntary romantic conduct not involving the employee accused of improper sexual conduct irrelevant to case, but information involving the accused employee would be relevant to s case

H) MECHANISM: RULE 33: INTERROGATORIES 1. Limited to Parties interrogatories CANNOT be used with non-parties 2. Limit on number: 33(a) limits party to no more than 25 written interrogatories (Unless given leave by court or other party agrees) 3. 33(a)(2) - Can Inquire about opinion and application of law to fact 4. Must be signed BY THE PARTY (NOT the attorney) Reason? party is testifying to its statements under oath requires signature to indicate acknowledge of this testimony 5. Objections - 33(b)(4) must be stated with specificity and signed by both party AND attorney 6. Option to produce business records 33(d) party can opt not to answer in writing and produce business record instead makes the other party find the answers it is looking for BUT need to ask yourself do you really want them going through all these documents? They may find much more than they would have if you had answered the written questions! 7. Pros of Interrogatories: a) CHEAP! b) Can get list of other witnesses that were not included under required disclosures this could potentially include witnesses with adverse info on the party may benefit your case c) Can get specific information not readily available under the initial disclosure/doc requests e.g. can as identify all the people on your former payroll from date X to date Y 8. Cons of Interrogatories: a) The answers are drafted by the attorney the answers will provide as little info as possible

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b) Can only get limited information c) Cannot ask follow up questions d) Limited to parties I) MECHANISM: RULE 34: DOCUMENT REQUESTS 1. Parties AND non-parties 2. Note the BROAD definition of documents documents, tangible things, entrance to land, electronic info 3. Fewer restrictions than interrogatories more accessible, information is easier to produce (whereas w/ interrogatories the questions have to be drafted, the answers have to be drafted) 4. Attorney must sign 5. Procedure: party serves request on party in possession of the sought-after info. Request must describe w/ reasonable particularity each item or category to be inspected 6. Procedure for Non-Parties: to obtain docs from non-parties, must obtain subpoena under Rule 45(a)(1)(C) subpoena must be given to non-party to authorize request

J) MECHANISM: RULE 30: DEPOSITIONS 1. Parties AND Non-parties 2. Similar to cross-examination in trial 3. Limits (unless granted leave by court): a. Limited to 10 depositions b. No person can be deposed twice c. Each deposition can be no more than 1 day of 7 hours 4. Overcoming Limits a. With leave of court, can get additional time to depose (30(b)(2)) b. Must consider whether it is worth going to court to get more time judges really do not like dealing with discovery issues cant you kids figure it out on your own? c. Reason to bring to judges attention if party being deposed is being difficult/purposefully objecting to questions, taking their time w/ answers to slow the process, it may be worth making the judge aware of this behavior 5. Procedure a) Must give reasonable written notice to every other party b) Notice must state time/place of deposition & if known , the deponents name and address 6. Procedure for Non-parties a) Requires subpoena under Rule 45 7. 30(b)(6) Notice or Subpoena Directed to an Organization a) Named organization must designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf; the designated person must testify about info known or reasonably available to the organization 8. Pros of a Deposition a) Can obtain info from the witness or party find out additional info/witnesses and where it can be obtained b) Can ask follow-up questions c) Can get admissions which can be used for summary judgment d) Provides a sense of how the deponent may act as a witness - are the credible? Would they be a good witness to use at trial? e) Lock down answers/freeze deponents story if called as witness at trial and they tell a different story you have this info to show their contradictory stories f) Trial Deposition if desired deponent cannot be a witness at trial for certain reasons (e.g. lives across the country), you can get a depose them and enter this as trial info 9. Cons of a deposition a) EXPENSIVE K) MECHANISMS: RULE 36: REQUEST FOR ADMISSIONS - Although under discovery, request for admissions conceptually more like pleadings 1. Parties Only

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2. Scope: party can request admissions regarding: a) Facts b) Application of law to facts c) Opinions about facts or application of law to facts d) Genuineness of any described document 3. Reasons to use a) Helps narrow the issues for trial b) Get other side to agree about the validity of a document c) Try to catch a lazy party, hope they will miss deadline missing deadline information deemed admitted 4. Failure to Respond 36(a)(3) a) Party has 30 days from service to answer b) If not answered within 30 days, a matter is deemed admitted 5. Frank v Global Payment (2009) U.S. Dist. Ct. MN Facts: requests admissions in August; sends reminder to in Jan. reminding of request; does not respond until June Procedural Posture: motions for summary judgment based on failure to respond matters deemed admitted Issue: Whether should be allowed to withdraw/amend its admissions or whether issues should be deemed admitted Holding: s failure to respond w/in 30 days and even after reminder means that has admitted matters in s request for admission Ruling: Rule 36(a)(3) Reasoning/Analysis: s significant delay threatens 2 vital purposes of Rule 36: To facilitate proof w/ respect ot issues that cannot be eliminated from the case and to narrow the issues by eliminating those that can be Court concluded that the evidence in the case indicated that the would have to admit the information anyways prejudiced by s lack of response When Court considers whether info should be deemed admitted will look at 2 factors: i. Is the party seeking the request for admissions prejudiced by the failure to respond? ii. Was the party who failed to respond dilatory in their conduct? if party was dilatory, court more likely to allow matters to be deemed admitted (in Frank, the was clearly dilatory, especially because the sent it reminder and gave him chance to answer!) L) E-DISCOVERY 1. Refers to any process in which electronic data is sought, located, secured, and searched with the intent of using it as evidence in a civil or criminal legal case 2. Electronically Stored Information (ESI) information created, manipulated, communicated, stored, and best utilized in digital form, requiring the use of hardware and software Legally defined phrase U.S. govt determined that for the purposes of FRCP rules of 2006, it was necessary to promulgate procedures for the maintenance and discovery of electronically stored info 3. Applicable Rules: a) Rule 26 Scope b) Rule 34 ESI c) Rule 37 Sanctions d) Rule 45 Subpoena (used w/ non-parties, not main parties to the suit) 4. Anatomy of a Case a) Pre-Suit anticipation of suing or being sued; documents should start being preserved b) Early Case filing of complaint; behind the scenes need to assess what data should be preserved & take action to ensure preservation c) Initial discovery 26(f) conference; 26(a) initial disclosures d) Discovery e) Motions in limine motions for sanctions, motions for adverse inferences Adverse inference can be requested if party has deleted evidence/failed to preserve evidence court can instruct the jury of this failure to preserve and instruct the jury to infer that the deleted evidence goes against the party who deleted the evidence f) Trial presentation of electronic evidence need to be thinking about possible E-evidence early in litigation b/c you

26

will have to disclose it! g) Post - trial release of the litigation hold (Litigation Hold = order for a company to preserve all its data) 5. Proportionality need to weigh benefit of the information versus burden of producing the information a) Availability from other sources can info be obtained in a different, less expensive format? b) Total cost vs. Amount in Controversy c) Total Cost vs. party Resources d) Ability/Incentives to control cost i. Limit Scope narrowly tailor the request to smaller amounts of info that are likely to be relevant ii. Cost-Shifting usually, the responding party has to pay for discovery of information; cost-shifting shifts the expense to the party requesting the information incentive for a party to limit the scope of their requests e) Social Importance of litigation should be paid attention to, but often isnt f) Relative Benefits g) Sampling Exercise go through the process of obtaining a small amount of the information being sought to determine the accessibility and the cost can extrapolate to determine total cost to obtain ALL info sought Accessible versus Inaccessible LEAST ACCESSIBLE/INACCESSIBLE

6.

MOST ACCESSIBLE

Active on-line data Near-line Data offline storage/archives Backup Tapes damages media legacy media 7. Back-up tapes are the gray area the three before are almost always accessible and the two after are rarely, if ever, accessible Preservation/Spoliation a) Once you have knowledge that evidence is relevant to litigation duty to preserve b) Factors to consider when determining need to preserve: i. Specificity ii. Credibility iii. Value of claim iv. Data stability c) Duty of Counsel: i. Take reasonable affirmative steps to locate all relevant information ii. Take reasonable steps to ensure continuing preservation Sanctions a) Further discovery b) Cost shifting c) Fines d) Special jury instructions e) Adverse inferences f) Preclusion g) Dismissal/default h) Ethical violations/referral to bar for attorneys

8.

M) DISCOVERY ENFORCEMENT - RULE 37 AND RULE 26(c) & (g) 1. Typical Discovery Enforcement Mechanisms a) 37(a)(1) Meet and Confer Requirement before filing a motion to compel discovery, the parties must be able to present an affidavit that they have met and conferred with the other side about the problem and have attempted, in good faith, to reach a compromise on their own The Meet and Confer requirement may be seen as an incentive to withhold the production of certain information that you are unsure you want to produce the meet and confer gives you a second chance to disclose it if the other party requests it, and gives you the chance to do so without ever having to go in front of a judge (STRATEGY: Do not produce info if unsure you want to b/c you will have a chance to provide it if party really wants it at the meet & confer!) Downside to withholding the info(STRATEGY): if the party requests the info you withheld this may make the party suspicious as to why you withheld the information and may cause them to dig deeper and discover information that you did not want them to. This may be an incentive TO produce the information when initially

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requested Rationale for the meet and confer requirement because discovery happens outside the purview of the court, the enforcement mechanisms put the responsibility on the parties courts do NOT want to see parties about discovery issues unless the parties have really tried, in good faith, to work it out themselves.

b) 37(a)(3) Motion to compel if meet and confer does not resolve issues party can motion the court to compel discovery oral argument made in front of judge c) Order to Compel Order issued by judge Under 37(a)(5), the party prevailing (movant or non-movant) can seek attorneys fees accumulated in making the motion but the judge does not have to order the attorney fees. Order to pay attorney fees must be substantially justified If the partys failure to disclose/produce information is substantially justified/done in good faith then the court need not award attorney fees As a party, your goal is to appear to be the more reasonable party you want there to be evidence of the meet and confer to show that you truly tried to work things out but that the other party simply would not cooperate Judges are NOT eager to make and order to compel that the language of the rule makes it appear

d) Failure to comply with Court Order SANCTIONS!!!! - 37(b) 37(b) sanctions are only available AFTER the court orders a party to compel and they fail/refuse to do so Sanctions include: 1) Directing that the matters embraced in the court order or other designated facts be taken as established for the purposes of the action, as the prevailing party claims 2) Prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence 3) Striking pleadings in whole or in part 4) Dismissing action in whole or in part 5) Rendered default judgment against disobedient party 6) Treating the failure to obey any order (except order for physical or mental exam) as contempt of the court 7) Payment of expenses (e.g. attorneys fees) 37(d) and 37(f) sanctions are available on the occurrence of misbehavior - can be given as punishment for unjustified requests or refusals, even when the partys behavior has not violated a court order (e.g. 37d failure to attend deposition without notice can go for immediate sanctions, no need to motion court to compel discovery) 2. Rule 26 a) 26(g) - Requires parties to sign disclosures and discovery requests, responses, and objections Who signs? at least one attorney of record must sign. If party is pro se, the party must sign This is the Rule 11 for discovery b) Parties can be punished for unjustified requests or refusals, even when the partys behavior has not violated a court order. c) If party thinks that a partys discovery request is too broad or too burdensome (e.g. too costly, party has asked for a voluminous amount of information), the party has two options: i. Rule 26(c) Motion for protective Order like a declaratory judgment if you anticipate that you are going to sue, you may wish to make the first move and seek a declaratory judgment 26(c) if you anticipate another party is going to bring a motion to compel (which you should know b/c they will request a meet/confer) you can preempt this motion by motioning court for protective order regarding the info STRATEGY Decision: Do you want to be the aggressor? Do you want to respond to a motion or bring your own motion? STRATEGY: Advantage to bringing a 26(c) motion before motion to compel: makes you look better you are being proactive in discovery process rather than trying to hide something; if you do not seek a protective order and then they bring a motion to compel this may make you look suspicious and may lead other party to seek even more information b/c they think you are hiding something 26(b)(5)(A) privilege log - after claiming privilege, the party who requested the information may seek a

28

privilege log a description of the nature of the documents, communications, or tangible things that are not being produced, described in a way that does not reveal the information itself. Allows other party to assess your claim of privilege (in reality, privilege logs are not often done) ii. Do nothing and let the other party bring a motion to compel STRATEGY: Advantage to waiting: wait and see if they even make the motion because if they dont then you dont have to turn over the info!! d) Impact of too-broad discovery request What you lose when you bring too broad of a discovery request: You lose the ability to ask for more specific, narrowly tailored information E.g. you give a broad request and are given 45 boxes of information that is useless If you then make a more specific request the other party is likely to claim burden in the production of more information because you already asked and were given a voluminous amount of discovery seeking additional information that you could have asked for in the first place imposes a burden on the other party No YOU have to go through all of those boxes and figure out what is relevant!! 3. When the Meet/Confer Motion to compel Process is not necessary SKIPPING STRAIGHT TO SANCTIONS! a. 26(g) Similar to Rule 11 1) Rule 11 expressly excludes discovery Rule 26(g) takes its place and provides discoverys own enforcement regime 2) Requires signature of disclosures and discovery requests, responses, and objections 3) Failure to sign other parties do not have duty to act on the request/response/objection until it is signed; court can strike the unsigned information unless signature promptly provided when its absence is brought to partys attention no need to go through the motion to compel process b. Rule 37(c) Alternative to 37(a)/37(b) Motion to Compel Process 1) Covers 26(a) disclosures and particular situations with requests for admissions 2) If party fails to disclose as required by 26(a) or (e) can skip straight to sanctions: i. Party not allowed to use information or witness (unless failure was substantially justified) ii. Court may order payment of reasonable expenses including attorneys fees caused by failure iii. Court may inform jury of the partys failure iv. May impose other sanctions appropriate from those in 37(b)(2)(A)(i)-(vi) 3) Rule 36 Request for Admissions self-enforcing failure to respond to a request results in the information being deemed admitted - this is why there is no sanction in Rule 36 37(d) failure to attend deposition If party given deposition notice fails to show up at the deposition, you do NOT have to go through the meet&confer/motion to compel procedure can simply go to the Court and seek sanctions If party receives deposition notice and the deposition is scheduled at a bad time (e.g. your client is out of town and cannot physically make it to the deposition) you must respond to the notice and seek a schedule change If the deposing party refuses to grant a schedule change, you can motion for protective order 26(c) based on burden b/c it is not possible for your client to make it to the deposition b/c she/he is out of town! d. 37(f) Failure to participate in 26(f) conference If party fails to participate in 26(f) conference/report no need to go through meet & confer process if other party indicates they are unwilling to cooperate can go directly to court to seek sanctions

c.

4.

Delaying/stalling during deposition a) If party being deposed makes numerous objections during deposition & deposing party cannot finish in time allotted for deposition (7 hours) deposing party can request additional time from judge Rule 30(d)(1) b) If deposing party thinks the party is purposefully impeding or delaying discovery can seek sanctions Escamilla v. SMS Holdings (2011) Spoliation and Discovery Enforcement Facts: alleges sexual harassment & battery by her supervisor Gonzalez while employed by Three computers at issue: Gs work comp, Gs PC, and Gs wifes computer Conveniently, wifes computer had been sent to Mexico and Gs PCs operating system re-installed (AFTER he was given a motion to compel!!)

5.

29

Chronology 1. March 2008 - EEOC investigates issue of employment discrimination o Employment law requires exhaustion of administrative remedies - must go through EEOC first o EEOC informs SMS that it has duty to preserve personnel records o Duty is EXPLICIT as early as March 2008 to SMS 2. April 2008 o Gonzalez returns work computer to SMS 3. August 2009 o Zuniga files complaint 4. November 2009 - Secluding Order 5. Dec. 2009 and June 2010 - Discovery 6. September 10 - Motion to compel (had to have meet and confer before this!!) MAGISTRATE JUDGEs ORDER (Classified as an interim order NOT sanctions) 1. New Limited Depo of G (even though one already had been performed) 2. SMS ordered to search new data sources at their own expense 3. s computer consultant allowed to search both work and Home Computer ON APPEAL Magistrate Judges order affirmed in total Reasoning: o Timeline of events even after the motion to compel was given to G, he STILL re-installed his computers operating system o No need for bad faith o There is a potential that would be prejudiced by failure to preserve the evidence o Proportionality it is Gs and s own fault for failing to preserve the evidence after being put on notice that they should!

FINALITY
A. CLAIM PRECLUSION RES JUDICATA 1. An affirmative defense barring the same parties from litigating a second lawsuit on the same claim, or any other claim arising from the same transaction or series of transactions that could have been but was not raised in the first suit - Brought as an Affirmative Defense under Rule 8(c) it is one of the affirmative defenses listed in the rule! 1. Three elements: a. Same Claim (What?) b. Same Parties (Who?) c. Final Judgment on the Merits (When?)

Not as easy as it would seem to figure out what these elements mean and when they are fulfilled!!! 2. Rationales a. Consistency/Fairness claim preclusion ensures consistency in litigation by preventing suits on the same claims from concluding in different results Principle of fairness: not fair to allow a to be brought back into a lawsuit over an issue they thought had been settled. b. Efficiency It would be inefficient and burdensome on the courts to allow relitigation of the same issue Requires/incentivizes parties to bring all closely related claims in a single case Helps to ensure the most efficient use of scarce judicial resources The rules force the to bring all their claims that they have (e.g. compulsory counterclaims c. Finality for both efficiency and fairness reasons Allows s to continue on with their lives without the fear of being brought back into court for a claim that they thought was settled Finality ensures efficiency d. Symmetry claim preclusion creates symmetry between and - under rule 13(a) a is required to bring any counterclaim arising from the same transaction/occurrence as the initial claim; if he does not bring it in his answer, the claim is waived. There is no rule for claim preclusion for - the common law is read into the law to prevent a from re-litigation of a claim related to the same transaction/occurrence as the claim in the first suit Based on the same idea as 13(a) if you CAN bring and you fail to you will not be allowed to bring it later!

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3.

Same Claim/What? a. A claim is barred if it was, or should have been, raised by a party who was a in a prior action that was resolved by the court in that action b. What constitutes a claim? Different jurisdictions approach this issue differently! i) Same claim/Same transaction test if a claim arises from the same transaction/occurrence or series of transactions/occurrences, then the claim cannot be brought in a second suit Courts often look to whether the claims share some of the same relvant evidence Similar to the test used in the Rules for joinder & compulsory counterclaims!! Approach used by majority in Friar Fairly broad leads to preclusion of many claims ii) Same Cause of Action Test a claim is barred if it arises from the same cause of action/same legal theory Is the claim brought under the same legal theory? Approach used by the dissent in Friar c. Cases 1) Frier v. City of Vandalia(1985, p.668) Facts: Friers cars get towed, he can get them back easily but brings a lawsuit instead Procedural Posture: brings first suit in state court for replevin HOLDING: Claim preclusion applies; Frier cannot bring another claim in federal court First Case State Court - 4 of cars towed - files state court suit for replevin - Claim: police improperly towed his cars - CITY WINS first case court concludes the City had the right to remove the cars form the street 2nd Case Federal Court - files due process claim in Federal Court - Complaint: city towed cars without giving the opportunity to have a hearing due process violation - Court concludes claim preclusion - Same parties: yes - Final judgment yes the state courts decision was a final judgment against Friar - Issue: is it the same claim? - Majority Concludes: Claim preclusion b/c the claim arises from the same transaction/occurrence COULD have brought the due process claim in the state court case - Majority concludes that it is not just about whether the claim arises from the same legal theory, but whether the COULD have brought the claim - DISSENT: argue s for the cause of action test due process and replevin claims are two different causes of actions/legal claims

2) Martino v. McDonalds (1979; p.677) Facts: owned McDs franchise. Original lease included non-compete clause that prohibited Martino or any of his family members from acquiring a financial interest in a competing food business. Martinos son opens Burger Shack franchise. First case: McDs breach of K claim against Martino Second Case: Fed. Court Anti-Trust Claim against McDs

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- Cause of action in Federal Court for breach of noncompete clause - Result: Consent judgment - Consent judgment occurs when parties reach a settlement deal and get the court to enter the settlement as a final judgment - Consent judgment issued in 1973

- 1975: Martino bring Sherman Anti-Trust claim, seeks damages for lost profits he would have earned as McDs Franchise owner - Claims that McDs no relative non-compete clause goes BEYOND a non-compete clause by extending to his family members, attempting to bind individuals that are not parties in the contract. Martino claims McDs is restraining trade and thus in violation of Sherman Act - 13(a) does not apply to this case b/c it only applies to pleadings in first case Martino did not respond with an answer to McDs complaint Martino filed no pleading in the first case therefore no 13(a) - Court moves on to common law doctrine of Claim Preclusion - Martino argues that his claim arises from a different transaction b/c it deals w/ the noncompete clauses impact on the market/free trade; first case dealt with the breach - Court Concludes: Claim Preclusion applies Impossible to look at this claim as anything but a challenge to the outcome of the consent judgment Court concludes that the second suit could lead to inconsistent judgments Efficiency allowing second case would be inefficient want to incentivize the claim to be brought in the original suit, force party to put all their claims into one suit

4.

Same Parties/Who? a) Claim preclusion usually will only operate between those who were the parties to both the first and second lawsuits b) Exception: Privity if a third party is in privity with a party to the first action, claim preclusion will apply to both the third party will be barred from bringing the same claim in a second lawsuit c) Raises similar issues as Rule 19 and 24 if a party could NOT have joined under 19 or 24, they were not in privity! gets to the issue who has the responsibility to get a party into the lawsuit d) Searle Brothers v. Searle (1978) Facts: divorce suit; wife is awarded the Slaugh House property even though husband claimed he owned only half the property; other half was owned by their sons. First Suit Dissolution suit b/t Mom and Dad - Mom awarded property Slaugh House Second Suit Sons sue mom for Slaugh House - Partnership (sons) sue mom claiming they have halfinterest in the Slaugh House - Same Claim? Yes title to Slaugh House - Final Judgment? Yes - Issue: Same parties? Can the sons be bound to a lawsuit they were not parties to? - Issue in this case revolves around privity sons were in privity with a party (Dad) in the first lawsuit - The sons participated in the lawsuit by testifying - Father Represented them in the first lawsuit - BUT children cannot be joined on dissolution suits - Majority: Claim Preclusion DOES NOT apply - Sons had no opportunity (or ability) to join the first lawsuit it

- [To avoid this issue entirely, the mom could have asked for a separate title on the issue of who owned the title to the land]

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would be unfair to bind the sons to the previous suit that they were not parties or privities; no one litigated the title to the Slaugh House - Dissent: sons participated in the first suit; father represented their interests; sons fully aware of the suit; the title was in the fathers name, not theirs A reason for claim preclusion is to prevent oppression of the we do not want to allow or incentivize parties to sit back and wait until the first case is decided and then bring another lawsuit on the same claim this would be oppressive to the party being brought into court for a 2nd time

6.

Final Judgment/When? a) A final judgment is one that completely wraps up the matter in question, leaving the trial court nothing more to do except possibly help a party collect on the judgment. (but in reality, what constitutes a final judgment is not really clear b) Stages of litigation/dispositive motions that ought to preclude filing of a second suit by the same party on the same claims: 1) Full Jury Trial 2) Judgment as a Matter of law 50(a) and 50(b) there would be no purpose to bringing these motions if the other party could simply re-file the same claim 3) Summary Judgment same as above 4) Failure to prosecute should preclude filing of same claim b/c if it did not, there would be no purpose to it the purpose is to incentivize to prosecute their case in a timely manner. Unless there is a justifiable reason for their failure to prosecute, they should not be allowed to file same claim 5) Rule 41(b) unless the case is dismissed for lack of jurisdiction, improper venue, or for failure to join a party under Rule 19, the dismissal acts as an adjudication and the merits, precluding from bringing same claim against c) 12(b)(6) this is where the rubber hits the road regarding claim preclusion If a judge grants a 12(b)(6) motion, what usually happens is it is dismissed without prejudice to allow the to amend their complaint and add enough facts to survive the motion. But what if the simply does not have the facts and cannot amend their complaint in a way that would allow them to survive a 12(b)(6) If the truly does not have sufficient facts to state a claim, he should not be allowed to re-file the same exact complaint b/c this would defeat the purpose of a 12(b)(6) and would be inefficient and a waste of the courts time If has uncovered new facts a while later, and it is still w/in statute of limitations should be able to re-file the same claim the new facts would indicate that allowing the filing would result in an inconsistent judgment b/c the claim is now different with different factual support 12(b)(6) illustrates the ever present ambiguity about the issue of claim preclusion how you frame the argument and present the sequence of events to the court can REALLY matter and impact whether the judge will or will not allow your claim!

d) Stages of litigation that should allow to re-file claim: 1) 12(b)(2) dismissal for lack of personal jurisdiction should have opportunity to re-file in a proper court; uner rule 41, voluntary dismissal for lack of personal jurisdiction is w/out prejudice, can re-file same claim elsewhere B. ISSUE PRECLUSION (COLLATERAL ESTOPPEL) 1. Even if a party can bring a particular claim in a second suit, certain issues relevant tot that claim may be controlled by prior litigation a) Issues involving the same fact or law that have been actually litigated and determined by prior judgment and were essential to that judgment b) Does not preclude a whole case just trying to preclude a party from bringing up/arguing a particular preclusion c) Just because you have claim preclusion does not mean you have issue preclusion d) Just because you have issue preclusion does not mean you have claim preclusion e) NARROWER than claim preclusion CP involves not only claims you DID bring but also those you COULD HAVE

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f)

brought IP is narrower b/c the issue HAD to have been ACTUALLY LITIGATED and DETERMINED NOTE If in the first case, the prevails on an issue, a later can argue for issue preclusion on this issue If the prevails in the first case on an issue, in a latter case the CANNNOT argue for issue preclusion

g) Rationales: 1) Efficiency 2) Consistency in judgment 3) Fairness 2. Issue preclusion bars any issue: a) Of law or fact that was b) Actually litigated and determined by c) A valid and final judgment, and d) The issue was essential to the judgment e) [Case law adds a 5th: whether the burdened party with issue preclusion had an adequate opportunity and incentive to litigate the issue in the earlier proceeding} Same Issue Actually litigated and Determined a) Illinois Central Gulf RR v. Parks (1979; p.696) Facts: the Parks (Jessie and Bertha) injured when car collided with Ill. Cent. RR train

3.

Case 1 B sues RR for Injuries Jessie sues for consortium B wins recovers $30,000 J does not prevail; no damages awarded RR alleged he was contributorily negligent & therefore cannot recover Jury enters general verdict for RR RR not liable to Jessie General Verdict - verdict in which jury finds in favor of one party or the other (e.g. guilty, not guilty; liable, not liable) Specific Verdict Jury answers set of judgeprovided questions to resolve specific fact questions Jury does not give judgment on RRs claim of contributory negligence

Case 2 J sues RR for injuries Jessie sues RR for injuries Claim preclusion court b/or they use the cause of action approach different causes of action are not precluded from later litigation (Consistent with dissent in Frier; Would not be able to bring this claim in a jurisdiction using same transaction/occurrence test) RR claims issue preclusion applies b/c previous judgment found J contributorily negligent, which is a complete bar to recovery Court concludes J CAN bring claim When there are two possible explanations for the outcome of the case and there is no way to determine which outcome was determinative for the judgment, these issues are not precluded in later cases Had jury given a special verdict and found J contributorily negligent issue would be precluded But, b/c of general verdict the judge cannot determine whether J did not prevail in the first suit because (1) he was contributorily negligent; or (2) he did not suffer any damages for loss of consortium If you were found contributorily negligent - would not be able to bring this issue up Best argument for RR that issue preclusion applies: Uncontested evidence that there were damages BUT just because the evidence was uncontroverted does not mean the jury was convinced by the slim evidence and concluded that J was contributorily negligent ISSUE NOT ACTUALLY LITIGATED OR DETRMINED issue NOT precluded

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b) When multiple issues were litigated in the previous suit and the jury entered a general verdict, it may be impossible to know which issues were essential to the judgment if judge or jury rules on multiple issues w/out specifically indicating its finding, issue preclusion cannot apply 4. Essential to judgment a) This question arises whenever a judgment sets out alternate bases for the holding b) Example: seeks recovery for same injury on alternate claims and the court finds that should prevail on two or more of those claims which issues were essential to the judgment? All of them? One of them? c) Some courts follow the view that all of the alternate rulings have preclusion effects. d) Some courts follow the view that none of the alternative rulings have preclusion effects Which Parties? Non-Mutuality a) Traditionally, issue preclusion involves only those cases with the same parties (mutuality) issue preclusion applied only as between those who were parties or in privity with parties in the first suit b) Many courts have abandoned/relaxed this requirement for the non-mutuality rule c) Non-mutuality many courts will permit a person not a party to the first suit to take advantage of an issue fully litigated and determined by a previous suit d) Offensive Use use of an issue by a party who is trying to recover on a claim in the second suit e) Defensive use used by a party who is defending against a claim in the second suit f) State Farm Fire & Casualty Co. v. Century Home Components (1976,p.710) FACTS: Fire stated in s shed; caused substantial damages 48 claims of negligence against Non-Mutual, Offensive Issue Preclusion Non-Mutual = different parties from the previous cases Offensive the is trying to use issue preclusion Issue: Whether the should be precluded from contesting the issue of liability in each of the cases Case 1 - NW Bell Sues Cent. Homes Outcome wins Case 2 Sylwester v. Century Home Judgment entered for No Appeal judgment final Case 3 Hesse v. Century Home won Case 4 North West Bell 2 (re-trial) wins Case 5 State Farm Trial court collaterally estopped from contesting liability On appeal court rules that b/c of inconsistent prior determinations it would be unfair to preclude from re-litigating the issue of liability Reversed and remanded

5.

Subsequent appeals

On appeal - NW Bell prevails - Reason: error in failing to compel the to produce a statement needed by the for the purpose of impeach a defense witnesses - court held this was a reversible error --> ordered new trial

On appeal, judgment for affirmed

Reasoning for the State Farm decision: Awarding issue preclusion to the in light of the fact that the had prevailed on one of the four previous cases would make issue preclusion unfair Where outstanding determinations are actually inconsistent on the matter sought to be precluded, it would be patently unfair to estop a party by the judgment it lost The unresolved question is: How many previous cases would it take for issue preclusion to be fair? a. If two of four cases had been tried, both in favor of , would issue preclusion for the last two cases be fair? b. What if three of ten cases had been tried and decided in favor of ? Is issue preclusion fair? c. Method Used by Courts: Some judges set several cases for trial to see if the results of if a pattern develops Probably would not want to be the first in such a scenario! Because if you are not the first and the first loses, you still have the right to bring your claim this is not claim preclusion!!! Because they were not a party to the first suit, they can always file their own claim! Issue Preclusion is often at issue in Mass Tort Litigation

6.

7.

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a. b.

Example: asbestos cases, drug/pharma cases; tobacco lawsuits Methods for Courts to deal with mass tort litigation: i. Try a few individual cases to see if a pattern develops ii. Consolidate cases method to avoid issue preclusion problem all s are present in the case(as opposed to a class action where there are a few representative s); Issue preclusion problem avoided b/c all s claims will be settled in one suit iii. Class Action (oddly, there may be a benefit to in class actions in these cases even if they lose, they only had to try the case once and other members of the class who did not opt out are precluded from bringing their own claims) iv. Alternative to litigation: regulatory, political, or agency solution e.g. setting up mass compensation fund to by pass litigation (such as the 9/11 Fund)

BASIC TAKE AWAY FROM ISSUE PRECLUSION: UNDERSTAND THA BASIC DYNAMIC AND REALIZE THAT WHEN YOU HAVE MORE THAN ONE PREVIOUS CASE, THERE IS NO RIGHT ANSWER IT IS ALL ABOUT HOW YOU FRAME THE ISSUE!!

RIGHT TO A JURY
RULES: 38, 39, 47, 48, 49
A. WHEN/WHY RIGHT EXISTS 1. Juries are only present if two conditions are met: a) At least one party asks for a jury (Rule 38(b)) RULE 38(b) on any issue triable of right by jury, a party may demand a jury trial by (1) serving party with a written demand (can be in the pleading) no later than 14 days after last pleading directed to the issue is served;) and (2) the filing must be in accordance with Rule 5(d) PARTY WAIVES JURY TRIAL UNLESS DEMAND IS PROPERLY SERVED AND FILED; OR, b) It is a case of the sort in which parties are entitled to a jury RULE 38(a) the right of trial by jury as declared by the 7th Amendment in Constitution or as provided by Federal Statute is preserved to the parties inviolate Applies only to civil cases (6th Amendment creates right to jury in criminal cases) 2. Right to Jury Trial arises from Constitution and from English system a) Cases in law right to jury trial b) Cases in equity no right to jury United States Legal System has merged law and equity (e.g. Rule 2: There is one form of action, a civil action) recognition of a complete merge of law and equity, no longer have a different court for each General Rule of Thumb (But be careful!! This is not always correct) a. If you are seeking money damages most likely in law and therefore has right to jury b. If you are seeking injunctive relief (e.g. specific performance this is in equity and therefore no right to jury trial

3.

4.

5.

Cases with Right to Jury Trial a. Breach of Contract seeking Money Damages b. Action in replevin (repossessing/restoring of an item to ones possession) c. Seeking recovery of the value of an item d. Ejectment to recover land wrongfully in possession of another e. Writ of Mandamus f. Writ of habeas corpus Non-Jury Cases a. Breach of Contract seeking specific performance b. Contract reformation (not about the underlying claim looking at the damages sought Reformation = equity) c. Rescission of Contract d. Declaration of Constructive Trust e. Accounting of the in order to determine what is owed to f. Owner in possession of land seeking to quiet title or remove clouds from the title

6.

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7.

Case with claims in both law and equity a. Jury will be present but they will only be given the legal questions b. Judge will decide on the equity questions

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