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Civ Pro Outline

I. Service of Process A. Commencement of Action: Rule 3 1. a civil action begins by filing complaint with court B. Who May Serve: Rule 4(c) 1. anyone who is not a party and is at least 18 (FRCP 4(c)(2) p. 39) C. What is served: 1. Summons served with a copy of complaint within 120 days after filing complaint. (FRCP 4(c)(1)) D. Waiver of Service: Rule 4(d) 1. If P notifies D of commencement of action, P can request that D waive service of summons a. D will have at least 30 days to return waiver 2. Streamlines process for the court less complicated and less expensive 3. Rules set up to make them want this costs of service will be imposed on D for failure to comply with request for waiver 4. Perk = more time for defendant. If D returns waiver, has 60 days (compared to normal 20 days) after the date on which the request for waiver of service was sent to serve an answer to complaint 5. If you can show D wasnt there for waiver, can defer costs good cause E. Service within the U.S.: Rule 4(e) 1. pursuant to law of the state where court is located or state in which service is effected (FRCP 4(e)(1) p. 40) 2. summons must be delivered, with copy of complaint: a. to individual personally OR b. by leaving copies of complaint and summons at individuals dwelling (FRCP 4(e)(2) p.40) c. to some person of suitable age/discretion residing therein a. leaves server of process with discretion to determine whats suitable d. by delivering to agent for service of process F. Due Process and Summons Service 1. Calculated to give reasonable notice 2. Core of due process = right to be heard 3. Greene v. Lindsey (packet) a. Posting on tenants doors is not reliable in this case b/c kids can rip them down (very fact specific holding) b. Challenge brought based on how process was served according to state laws (in a federal court) c. Mail goes a long way in protecting Ds constitutional right to have opportunity to be heard. Mail + posting = even better. d. Factors in determining whether service of process satisfies due process of care? 1. Cost of alternative service a. mail is inexpensive b. delay creates costs for both landlord (right to have new paying tenant) and tenants (right to possession of property) 2. Interest at stake: a. tenants interest in maintaining their home is high must consider consequences of eviction, etc.. b. whose interests count? Just the present tenants? Landlord? Future tenant? 3. Increase in reliability of new service: a. factual questions about the reliability of mail, posting, etc.. may be best answered by the legislature 4. Test = cost of alternatives, likelihood of error of alternatives and magnitude of interests at stake.

Service of Process

e.

Formula 1. If < 2, switch to alternative 2. If >, stay with 1 3. If =, either one is good Dispute is whether Rule 4 (summons) is satisfied

a.

Service of Process

II.

Pleading A. Objectives 1. give notice of nature of claim 2. state relevant facts 3. and in Code pleadings to narrow and formulate the issues involve 4. pleadings determine scope of the action and any judgment B. Background -- at CL, the pleading was the only stage in which issues were defined, so it was very important and the rules were very technical. A mistake in pleading could be fatal. Currently, pleading is only one stage in the issue-defining process so theres a trend toward liberalizing the rules of pleading and streamlining the process. C. Common Law v. Equity 1. Common Law a. Purpose 1. cheaper and faster process if parties agree to one issue in dispute b. Background 1. original CL courts could only grant relief in accordance w/ recognized forms of action and the pleading had to be drawn in terms of one of those forms. Amendments to change forms not allowed. 2. common law pleading aimed at separating disputes focused on law and those focused on facts. (they had to take their whole case on one or the other) and that determined whether case would be decided by judge or fact-finders. 3. One party per case -- inability to handle disputes with more than two parties 4. Live testimony but it couldnt be compelled c. Common CL issues: 1. breach of peace 2. specific writs 3. other fact finders? 4. Juries = involved, not impartial 5. Dilatory/delay on merit responses = jurisdiction, suspension, abatement OR: demurrer, traverse, and confession and avoidance 6. monetary relief d. Pros/Cons 1. Pro: quicker resolution of dispute 2. Cons: a. less complete representation of issue, some times artificially categorized according to available writs b. no remedy for disputes over fact and law c. numerous pleadings were time consuming d. primitive methods for gathering pretrial info e. inability to handle disputes involving more than two parties e. Numerous Pleadings In order to distill a case to one issue, numerous pleadings and counter pleadings take place. This was time consuming and used as a delay tactic 1. Responses to Pleadings a. Dilatory Responses delayed suit (dont take positions on facts or laws) 1. jurisdiction (not here) 2. suspension (not now) 3. abatement (not like this) b. Peremptory Pleas how D responds grappling w/ merit after P. enters suit for complaint 1. demurrer (so what facts are true, but no legal issue) 2. traverse (not true legal issue, but facts are untrue) 3. confession and avoidance concedes legal sufficiency and facts but alleges additional facts that change legal issue. (yes, but) 3. Chancery/Equity a. purpose: 1. to deal with cases that had no remedy in CL courts

Pleading

Background 1. Also royal court. Courts of equity heard cases where a remedy at law was inadequate. 2. More of a fact-based pleading 3. Parties could be subpoenaed but couldnt be heard live restricted to written testimony (enormous reliance on written depositions) 4. This pleading = less formal, more detailed, can last forever. 5. Could be multiple parties to a case. 6. issued special remedies / specific performance 7. detailed pleadings 8. had to include all parties 9. no juries c. Pros/Cons 1. Pro: more complete findings 2. Con: cases took forever d. Common equity issues: 1. trust 2. injunctive relief 3. fraud 4. mortgage e. Difference from CL 1. mode of administering justice 2. mode of proof 3. mode of relief D. Our System Merging Law and Equity 1. Legacy of Chancery and Common Law a. Our substantive law grew out of attempts to fit facts into rigid forms (writs). b. Our system was meant to take the best of both system and leave the rest behind. 2. 2 Step Reform Intro. Of Federal Rules and Intro to the field code adopted by legislatures a. Though details differed, reforms had 2 common themes: simplified pleading and merged law and equity into a single system. 3. Common ground between code and rules pleading a. both merge procedural systems of law and equity b. both were designed to get away from complexities of common law and equitable proceedings, esp. those of CL pleadings. c. Both designed to ensure clear and simple articulation of legal grievances d. Elements of substantive law must be addressed in both in order to survive dismissal 4. Differences a a. code requires allegation of facts, while Rules allow pleading of conclusions 5. Places where you can see merges in todays system: a. pretrial pleading is like CL but youre allowed more than one form in action b. Summary Judgment reflects CL interest of narrowing it down to one issue and deciding it c. Discovery from CL and today, same concerns of whether it goes too far d. Injunctions as in equity, today you have to show other relief falls short E. Field Code Pleading 1. adopted by State Legislatures, reflected populous interest in law being clearer. 2. goal = simplify pleading and focus on merits. Address all elements and explain case clearly. 3. Three stages of pleading: complaint, answer reply 4. Must plead the facts constituting cause of action and can not plead conclusions (allegations which are too general) or evidence (allegations which are too detailed) a. Had to have facts to support every element of claim you make, but not necessary to prove them. Purpose was to establish every element of the substantive law. b. Short and plain statement of claim

b.

Pleading

P need not fit facts into particular forms of action. Entitled to recover under any legal theory applicable to facts pleaded. d. Cant plead conclusions b/c it wont weed out non-meritorious cases (wont know if there are facts to back up conclusions) and it doesnt give D adequate info about claim e. Cant plead evidence b/c we dont want trial to take place in pleading stage. 5. Pleading can be insufficient (demurrer) if: (only in first 2 cases does leave to amend make sense) a. failure to allege facts or legal conclusions that establish element of law in question. b. States conclusions of law but fails to allege facts c. Alleges facts relevant to each element of the law but theres no legal sufficiency. 6. Problems: 1. hard to determine exactly sufficient facts (what is not evidentiary or conclusive) 2. overly technical process. 7. Code pleading is still the system in some states CA and IL 8. This merges procedures of law and equity but keeps the remedies distinct. 9. Far fewer pleadings in each case b/c theres no objective to reduce the case to a single issue through a pleading dialogue. 10. Gillispie v. Goodyear Service Store (p. 392) a. Case dismissed with leave to amend b/c P only alleged legal conclusions but failed to allege facts necessary to establish elements of law i.e. facts didnt constitute cause of action b. msg. of this = dont plead conclusions, plead facts c. choose better facts -- she alleged they trespassed. But she doesnt identify. Goodyear probably has no idea how to respond to complaint d. Why would P appeal? 1. P has few facts to lay out and the more she does, the more ridiculous her case looks 2. Prolonging lawsuit increases chances of settling out of court 3. P sincerely believes shes been wronged but most of supporting info is in Ds hands (discovery) F. Rule 8 Pleading under Federal Rules (Notice Pleading all it requires is to provide notice) 1. Pleading established in a very general way but must include (FRCP 8(a)): a. grounds for jurisdiction b. claim for relief c. relief sought 1. P neednt plead facts as long as his claim is something legally cognizable. He must, however, allege all the elements required by substantive law to satisfy a cause of action. 2. General: a. used in all federal courts and some state courts b. conclusions can be plead but there still must be some factual basis c. development of facts takes place in discovery stage (shift in focus to discovery) 3. Purpose: a. to ID transaction from which the Ps claim arises, so D has notice b 4. Duncan v. AT & T (didnt even mention what race she was) (p. 401) a. Problems with complaint 1. Fails to state a claim (for a 1981 violation) in which relief can be granted (court cant even deal w/ that) -- She doesnt give facts element not IDd 2. Complaint is so poorly composed as to be functionally illegible b. Must allege some facts in the complaint in order to provide notice to D and survive a 12(b)(6) motion 1. cant conclude discrimination without anything else 2. must give notice to D c. complaint harshly dismissed, with prejudice

c.

Pleading

Rannels v. SE Nichols (p. 409) a. failure to show probable cause said district court BUT b. court of appeals reversed. Read factual allegations literally and interprets law to support elements of Ps malicious prosecution claim. Remember, this isnt code pleading. It can be bare bones complaint. 1. Averment in complaint that Ds president support the malicious prosecution enough to support the element of malice in the claim. 2. Averment that Ds knew the reason or the stop order on the check was the dispute over defective merchandise and that such knowledge established want of probable cause for criminal proceedings. c 6. Complaint Bare bones vs. complete a. Reasons to make it complete: 1. impress judge sympathetic as possible at first intro. d 2. Scare opponent 3. For the press 4. D. must reply line by line 5. If you allege a lot, there may be automatic disclosure b. Reasons for bare minimum 1. dont want to reveal too much to opposition 2. so youre not held to things you plead that may not be true 3. if youre not sure of merits and you need facts G. Consistency in Pleadings: Rule 8(e)(2) 1. ideas that are apparently inconsistent may be pleaded alternatively or hypothetically a. meant to be done in good faith b/c P doesnt have all information and doesnt know which to allege 1. pooling of resources and evidence leads to a more efficient and single just result 2. tempered by burdens of proof. May realize they may not convince jury 3. will have one story by time of trial e b. P can only plead inconsistent versions of fact if P indicates some good reason why he wouldnt know which was true H. Sanctions: Rule 11 1. look to actual bad faith of lawyer a. why? To promote self policing by attorneys and to deter groundless and frivolous claims b. provides a check for ease of access to courts resulting from liberal pleading 2. applicable to all filings except discovery 3. by signing a filing, a person certifies: a. reasonable inquiry with regard to factual and legal grounds for position b. allegations have evidentiary support (FRCP 11(b)(3)) c. claim is supported by law (FRCP11(b)(2)) d. paper not filed for improper purpose (FRCP 11(b)(1)) 4. Sanctions: a. Initiated by motion made separately from other motions FRCP 11(c)(1)(A) b. highly discretionary as to whether the court will even impose them (FRCP 11(c)) 1. lots of stigma so not lightly imposed c. great latitude in selecting the sanction (FRCP 11(c)(2)) d. imposed for deterrence reasons e. if monetary, paid to the court and this is therefore not a fee-shifting device f. discretionary whether to award attorneys fees g. no monetary sanctions on represented parties, just lawyers or law firms (FRCP 11(c) (2)(A)) 5. Procedure a. motion for sanctions must be made separately (FRCP 11(c)(1)(A)) b. 21 day safe harbor provision motion must be served on the party, and not served to the court until 21 days later, so as to give the offending party a chance to amend its filing without suffering sanctions (FRCP 11(c)(1)(A))

5.

Pleading

I. f g

h J.

c. court may itself impose Rule 11 sanctions (11(c)(1)(B)) d. reviewed under abuse of discretion standard 6. Business Guides v. Chromatic Communications p. 417 a. violation of 11(b)(3) that means P stated facts without evidentiary support b. P had plenty of time to correct errors in identifying seeds to confirm copyright infringement c. 1993 amendment made sanctions optional provided alternative to attorneys fees. 1983 amendment mandatory sanction of attorneys fees which led to explosion. 7. RTC v. Gerbode p. 420 a. frivolous claim signed by lawyer Rule 11(b)(2) violation Ps complaint rested on unreasonable reading of law b. Groundless RICO (racketeer/corruption act) action not warranted by existing evidence c. Monetary sanctions cant be imposed against party for 11(b)(2) but can be imposed against law firm d. Monetary sanctions awarded instead of nonmonetary sanctions b/c the complaint had already been dismissed. e. safe harbor (21 days) Rule 11(c)(1)(A) 1. safe harbor provision forces a response to complaint since responses must occur within 20 days, yet a Rule 11 filing may not be filed until 21 days after the complaint. Contradictory but not resolved here. 8. Rules 11 vs. 12(b)(6) 1. Rule 11 = attack on people vs. attack on paper 2. You could file both (separately) but this might piss off judge and its expensive 3. 12(b)(6) doesnt have 21 day period and stops the clock 4. 12(b)(6) if motion wins, litigation is dismissed (some times with leave to amend) Burdens of Pleadings 1. Why important? a. tends to follow closely burdens of proof b. if one has burden of pleading, one loses if one fails to carry burden 2. Possible rules for establishing burden of pleading a. give burden of pleading to party with greater knowledge of act i.e., P is in best position to know whether he was negligent b. give burden to party contradicting usual state of affairs c. statutory language may give clues; unreliable method in close cases 3. Risk of not pleading an element youre supposed to: 1. complaint is vulnerable to a 12(b)(6) motion Defendants Response to a Complaint: Rule 12 1. pre-answer motion (alternative to answering) permits D to raise certain types of objections to the action at very early stage (motion = request for specific relief sought) a. raise objections 1. motion to dismiss 12(b)(6) 2. motion for a more definite statement: 12(e) 3. motion to strike 12(f) 4. motion for judgment on pleadings 12(e) 5. motion for SJ: Rule 56 b. Why? i 1. avoid revealing hand j 2. limit or dismiss case k 3. buy time 2. If D makes no such pre-answer motion, or if it is denied, D must file answer 3. when answer is presented: Rule 12(a) a. within 20 days after being served summons or complaint 1. if the pleading in question is an amended pleading, response period is 10 days under Rule 15(a)

Pleading

4.

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8. 9.

b. if waiver of service of summons, within 60 days after request c. If D files a 12(b) motion, hell have 10 days after motion is denied to file his answer d. If Ds answer includes a counter-claim, P must file his reply within 20 days Defenses that can be raised as a motion (not just responsive pleading) (Rule 12(b)) based solely on pleadings: a. lack of jurisdiction over subject matter -- (this can be raised at any time 12(h)(3)) b. lack of jurisdiction over person c. improper venue d. insufficiency of process e. insufficiency of service of process f. failure to state a claim upon which relief can be granted g. failure to join a party under Rule 19 h. b,c,d,e waived if not consolidated (12(g)) or if not in first responsive pleading or preanswer motion (12(h)) i. If D has suffered any prejudice from these, he should be able to tell right away j. f and g may be made at any time before and during trial k. any 12(b) defense stops the answer clock until judge makes ruling. P can amend complaint any time before then l. 12(b) defenses are also available to P when D answers (cross-claims, affirmative defenses, etc) Fatal: a. subject matter b. lack of jurisdiction c. improper venue d. 12(b)(6) although usually P will be given one chance to amend Motion to Dismiss for Failure to State a Claim Rule 12(b)(6) a. tests legal sufficiency of Ps claim. Motion should be granted where: 1. P states claim that doesnt exist under current law 2. P has failed to allege all necessary elements of cognizable legal claim b. Black letter law = complaint shouldnt be dismissed unless court is certain that P cant prove a set of facts in support of claim that would entitle him to relief c. court doesnt consider any evidence or pleadings besides complaint when deciding motion 1. if matters outside the pleading are presented to court as part of motion, motion is treated as a SJ motion under Rule 56 d. in considering motion, pleadings must be liberally construed in favor of sustaining complaint (assumes facts are true) e. dismissal of suit for failure to state a claim is a drastic measure. However, dismissal is usually without prejudice and P can file an amended complaint. f. Certain claims must be pled with particularity and therefore the 12(b)(6) motion will be granted on easier grounds than in other claims (i.e. fraud, mistake, civil rights) g. Motion to dismiss ruling is not appealable but actual final judgment is Motion for judgment on pleadings: Rule 12(c) a. can only be made after pleadings are closed (i.e. after answer has been filed). Different than 12(b)(6) b/c thats made (generally) before D files answer and this is after. b. If, on motion for judgment on pleadings, any new evidence is introduced thats not contained in pleadings, motion is treated as motion for SJ under Rule 56. Preliminary hearings : Rule 12(d) a. defenses in 12(b) should be heard and determined before trial on application of any party Motion for more definite statement: Rule 12(e) a. Must be made before responsive pleading b. not used anymore, instead rely on discovery unless claim can be refuted by filing a 12(b)(6) motion

Pleading

will be granted only when pleading is so vague and ambiguous that it would be unreasonable to require moving party to reply to it d. Purpose = so D knows exactly what hes responding to 10. Motion to Strike: Rule 12(f) a. Before responding to a pleading (or if no responsive pleading is permitted) and if motion is made within 20 days after service of pleading, court may order stricken b. either party may move to strike an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter in pleading c. strikes things that are inflammatory w/o cause (may depend on whether allegations are likely to prejudice moving party) d. used infrequently 11. Consolidation of defenses in motion: Rule 12(g) a. party may consolidate defenses in one motion b. if moving party omits any available defense or objection from the motion, the party shall not thereafter make such defense or objection, except as provided in 12(h)(2) 12. Waiver or preservation of certain defenses: Rule 12(h) a. see above b. also, court shall dismiss action whenever it appears that it lacks subject matter jurisdiction. K. Answers 1. Procedure: a. must be stated in short and plain terms (form same as complaint) and shall admit or deny (FRCP 8(b)) and shall set forth any affirmative defense (FRCP 8(c)) b. D must answer within 20 days of service (FRCP 12(a)(1)(a)) 1. unless he files a 12(b) motion in which case he must answer within 10 days of motions denial (FRCP 12(a)(4)(a)) 2. unless he waives service then 60 days c. if D doesnt raise defenses of personal jurisdiction, venue, form of process, or method of service of process in his answer, he has waived those defenses for all time 2. Purpose: a. responds to allegations in complaint b. asserts any additional info. 3. Forms of Denials Rule 8(b) a. P maintains burden of proof in trial of things denied b. Denials: 1. must fairly meet the substance of the averments denied a. General denial denies every material allegation in Ps complaint, incl. Jurisdiction b. Specific Denial Denies allegation of a paragraph/averment of complaint c. Qualified Denial denies part of an allegation d. Denial of knowledge or information. Good faith belief complaint is false but insufficient first-hand knowledge to back it up 1. except when such info is certainly within ds control 2. except when such info is public record c. Failure to Deny: (Rule 8(d)) 1. averments in complaint are admitted when not denied in answer a. except allegations of damages b. except immaterial allegations 2. Zielinski v. Philadelphia Piers, Inc. (p. 454) (forklift. D denied allegations. Forklift was being leased. ) about answering Rule 8(b) required a more specific answer a. D. may not make general denial when his intention is to deny part of averment and admit rest 1. b/c of Ds improper general denial, D was estopped (prohibited) from denying ownership of forklift

c.

Pleading

P encouraged an unclear response by consolidating a number of allegations in one paragraph of complaint b. Entity that has to pay is insurance company c. Specificity in answer must match specificity in complaint d. D has obligation to make denials with enough specificity so that a reasonable P would be alerted to individual matters denied l 3. Affirmative Defenses a. New matter D must prove in order to avoid Ps claim Defenses relying on facts particularly within Ds knowledge to be found in affirmative defense b. D bears burden of proof of affirmative defenses at trial c. Must be specifically pleaded or else right to use them waived d. Layman v. Southwestern Bell Tel. Co. p. 460 (digging ditch) 1. easement is an affirmative defense and certain kinds of affirmative defenses (when D. intends to rest his defense upon some fact not included in allegations necessary to support Ps case) shall be preceded to a preceded pleading. D should have said this in his answer. a. avoid surprising P at trial b. lay out responsibility of burden of proof 2. follows a statute like 8(c) 3. D could still amend its answer to extent that it doesnt prejudice P 4. D must plead affirmatively and prove his affirmative defenses m e. List of Affirmative Defenses (FRCP 8( c)) 1. contributory negligence 2. fraud 3. res judicata 4. statutes of limitations 5. illegality n f. Qualified immunity 1. requires heightened pleading b/c idea of qualified immunity (if actions took place under reasonable misapprehension of law) is to protect govt 2. This immunity is more than a defense, its a right not to stand trial 3. This is often pleaded in response to a 1983 permits a suit against those who act under color of law to deprive people of constitutional rights 4. this is at odds with Rules preference for discovery 5. Leatherman doesnt resolve this problem it held courts couldnt require more specific pleadings of civil rights but didnt answer whether heightened pleading required in cases involving individual government officials (as opposed to govt entities in Leatherman) 6. Schultea v. Wood (p. 435) (applies to 5th Circuit only) P. need not anticipate qualified immunity defense but will be required to respond with particularity 1. idea = protect govt officials from privacy-invading discovery 7. Gomez v. Toledo p. 444 (P. gave testimony vs. 2 other officers statements. Was transferred, demoted, charged with bugging phones, and fired.) a. Issue: Relying on qualified immunity defense, who has burden of pleading good faith (if youre D) or bad faith (if youre P)? b. Holding: qst of good/bad faith is uniquely within Ds knowledge, so he must plead affirmative defense of qualified immunity in his answer. c. Issue is about burden of pleading but its important b/c whoever has burden of pleading good/bad faith will have burden of proof at trial (difficult for P to prove may not be able to prove Ds mental state) L. Reply 7(a) 1. reply required if answer contains a counter claim labeled as such. If its an affirmative defense, not counter claim, a reply technically isnt required. 2. Also permits court to order a reply on its own motion or on motion of a party M. Rule 15 Amended and Supplemented Pleadings 1. Tries to balance easy amendment with prejudice

2.

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Pleading

2.

Extent to which party can alter his case depends on stage of proceedings at which amendment is sought 3. Prior to Trial a. either party may amend once as a matter of right either before a responsive pleading is served, or if none is allowed, within 20 days after the pleading (FRCP 15(a)) 1. motion is not a responsive pleading so if D files a 12(b)(6), P may still amend b. party may amend by leave of court leave to amend shall be freely given when just so requires means that would be amender has a good reason for not getting it right the first time and that there would be prejudice. FRCP 15(a) 1. court grants this liberally unless amendment is prejudicial 2. Beeck v. Aquaslide p. 466 o a. absent a showing of actual prejudice to P or evidence of bad faith by D, leave to amend shall be freely given by court p b. here, denial of manufacturer of slide by D was not in bad faith (b/c many imitation slides on market) and does not prejudice P (b/c he can still sue actual manufacturer) q c. still, its debatable whether theres actual prejudice. It will be a heavy burden on P to find original manufacturer and the claim may be barred of Statute of limitations has run d. did have another way out under fraud thing c. motion to amend must be filed with court and if granted, amended pleading must be filed and served d. response to amended pleading must be served within 10 days (FRCP 15(a)) e. sole question on whether amendment is allowed is whether it results in prejudice if the other party is worse off than it would have been had the material been included in original document f. Relation back (15(c)) what happens when P seeks to amend his complaint after statute of limitations would otherwise have run on new claim? 1. applicable in statute of limitations cases 2. at some point, D should no longer have to fear suit dont want it to intrude on statute of limitations purpose 3. if amended claim arose out of same conduct, transaction, or occurrence set forth in original pleadings, it will be allowed after the statute of limitations runs b/c of relation back (FRCP 15(c )(2)) a. the D is not prejudiced b/c she had notice of a claim on the basis of that particular fact set b. notice standard also used court asks whether original pleading gave D notice of the claim now being asserted 4. Moore v. Baker p. 474 a. allegations in original complaint that D violated informed consent laws prior to surgery. P later attempted to amend complaint to allege negligence during and after surgery b. court held that nothing in original complaint put D on notice that new claim of negl might be asserted at some point in future. P had no ground to amend. c. relation back applies only when new claim applies back to old claim 5. Bonerb v. Richard p. 476 a. Original complaint alleged P was injured b/c the basketball court was negligently maintained and supervision bad b. P moved to amend complaint to add new cause of action counseling malpractice c. P had to amend b/c Statue of Limitations had run, and he had no other option d. Court allowed amendment b/c it found same nucleus of facts supporting original claim supported new claim. Therefore, D was on notice from facts in original complaint 6. Reconciling Moore and Bonerb

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Pleading

g.

h. i.

when claim is original complaint is very narrow (as in Moore), D might think that general claim had been considered and rejected b. when claim in original complaint is general, as in Bonerb, D should probably be alerted to possibility that a more specific claim could arise 7. new defendants can only be joined after statute of limitations if they relate back, had notice within 120 days of complaint, and should have known that were it not for a mistake of identity, they would have been named (FRCP 15( c)(3)) a. Zielinski was before change of name rule 8. when amendment is to claim or theory, not underlying facts in support of claim, court will typically find that claim arose out of same conduct, transaction, or occurrence (Rule 15(c )) and allow amendment Amendment to conform to evidence Rule 15(b) 1. when issues not raised by pleadings are tried by express or implied consent of parties, theyll be treated as if they had been raised in pleadings 2. amendment of pleadings as may be necessary to cause them to conform to evidence may be made upon motion of any party at any time(even after judgment) but this isnt necessary b/c we focus on trial, not pleading now 3. contested amendment should be allowed liberally according to prejudice standard (15(b)). Also, merits of case should be served a. Court also takes into consideration: 1. bad faith on part of party 2. delay tactic 3. repeated failure to cure pleading 4. general rule = truth seeking is protected unless actual prejudice is created Amendment supersedes original pleading Supplemental pleadings allowed by courts discretion, which it exercises liberally (FRCP 15(d))

a.

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Pleading

III.

Discovery pretrial between pleading and trial A. Purpose to obtain factual info. and narrow issues B. Effects promote settlement, simplify pleading, alter litigation costs, harass C. Courts tend to stay out of discovery disputes D. Rules only apply when informal info. gathering doesnt work E. Basic Discovery Devices 1. Automatic/Pre-discovery Disclosure FRCP 26(a) has since 1993 provided for automatic disclosure of certain info. a. Goals: 1. Give parties equal access to all data, to ensure adjudication of cases on their merits 2. Determine issues that are actually in dispute 3. Preserve evidence that may be unavailable at trial 4. To save expense and time on core info that would be discovered anyway a. could be bad b/c it could lead to discovery litigation and b/c it takes away from the adversary nature of the process b. what materials? (FRCP 26(a)(1)) 1. identity and addresses of persons with relevant information 2. relevant documents 3. damages computation with supporting documentation 4. insurance agreement covering claims in the suit 5. Later, closer to trial, must disclose: a. identity and reports of experts (26(a)(2)) b. names of witnesses and documents and depositions (26(a)(3)) c. must be made within 10 days d. sanctions for failure to disclose e. Rule 26(e): parties under duty to supplement or correct disclosures if, for ex., new info comes to light that wasnt available at time initial disclosure made. f. BUT most jurisdictions opt out of automatic disclosures 26(a) says federal districts can decide for themselves whether to require thise g. 26(f) requires parties to meet and confer about disclosure and subsequent discovery before traditional discovery by interrogatories, requests for documents and depositions 2. Depositions taking of oral testimony from witnesses Rule 30 a. Guidelines: 1. both parties and non-parties may be deposed. Non-parties must be subpoenaed 2. maximum of 10 unless court allows otherwise b. Bad b/c: 1. time consuming 2. expensive 3. generally inadmissible in court unless witness is unavailable, or for impeachment purposes c. Good b/c: 1. witness is sworn and therefore her testimony is subject to penalties of perjury 2. counsel gets to see witness and thus judge how effective theyll be 3. examining counsel can frame follow-up questions and explore in detail issues that arise 4. gets deponent on the record commits her to a detailed version of the relevant events and if she later changes testimony, this can be used to impeach her testimony d. Statements made in deposition can be used in a limited manner during the trial, although they arent considered to be admitted as under Rule 36. e. Only questions about which the deponent has personal knowledge are allowed f. Tend to come after interrogatories and requests for documents so counsel will be prepared g. Objections are noted but generally answers are still given (unless prejudiced)

13

Discovery

If deposing counsel wishes a non-party deponent to produce tangible evidence, they must serve subpoena duces tecum to command production of request items i. Time and place informally arranged j. Counsel may cross-examine to clarify comments made during deposition or if it is a trial deposition (to be read in place of live testimony) 3. Interrogatories a. often used as first step in discovery b. guidelines: 1. may only be served on party 2. maximum of 25 unless court allows otherwise 3. may relate to fact or application of law to fact 4. may be based on info to which he has reasonable access, not just personal knowledge c. statements made in interrogatories not legally binding and may be contradicted in court d. advantage: cheaper than deposition e. disadvantage: cant follow up with questions. May be ineffective f. questions which are objected to are not answered g. written h. often most effective in obtaining basic background information 4. Requests for Admission -- Rule 36 a. means of narrowing the scope of the trial by eliminating uncontested issues b. may be served on a party c. functions more like a pleading d. admissions are binding at trial (not like depositions and interrogatories) e. takes burden of proof off table 1. if party served and doesnt respond, it serves as an admission 5. Requests for Documents Rule 34 a. requests may only be served on parties b. party who produces documents shall produce them as they are kept in the usual course of business c. to get documents from non-parties subpoena (Rule 45) d. subject to abuse b/c inexpensive to make request but costly to meet it e. intrusive f. parties may resist requests by construing them narrowly g. Rule 34 not limited to documents it authorizes inspection of tangible things 6. Medical Examinations Rule 35 a. requires court order b. invasive c. parties only d. order can be made on motion, only for good cause e. if party does obtain examination of another party, she must provide a copy of the report to examined party if requested A. Scope of Discovery 1. Discovery applies to everything thats relevant and not privileged. Very broad. Nothing to do with admissibility in court. FRCP 26(b)(1) 2. Court can limit this standard as it sees fit. Rule 26(b)(2) a. may limit length of depositions under Rule 30 b. may limit number of requests for admission under Rule 36 c. may limit discovery tools at its own discretion or pursuant to a motion for a protective order to protect a party or person from annoyance, embarrassment, undue burden or expense under (c) 3. Attorney Client Privilege a. absolute b. belongs to client it is she who can waive it 4. Work-product

h.

14

Discovery

materials prepared and info developed in anticipation of litgation are only discoverable if party can show a substantial need and inability to obtain material by other means (FRCP 26(b)(3)) b. only applies to documents or tangible things 1. names of witness cant be withheld under Rule 26(b)(3) 2. an interrogatory asking for names of witnesses must be answered c. mental impressions and legal theories not discoverable d. belongs to both client and attorney both must waive e. work prepared for litigation other than current litigation not protected f. Purpose to maintain adversary process while also maintaining full factual disclosure. Otherwise: 1. attorneys would have no incentive to work hard b/c opponents could discover their work 2. clients would not be well-served 3. other lawyers would freeload 4. lawyers would have to be witnesses, which would pit them against their clients and be potentially bad 5. Hickman v. Taylor p. 521 r a. Ds attorney refused to turn over copies of witness statements and to summarize oral statements taken from others connected to accident. (tugboat sinking). Didnt want to give written nots from interviews or info on the interviews that wasnt recorded b. work done in anticipation of litigation c. Work product exception: no discovery on work products in this case b/c: 1. P. could have gotten info. in other ways 2. Court held lawyers mental impressions absolutely protected 3. Lawyers shouldnt be forced to produce new material for their adversaries 4. No proof that production is essential to this case 5. Not what discovery is about. Discovery is for facts and this is legal theories 6. Lawyer shouldnt be forced to do his adversarys work encourages bad lawyering 7. Makes lawyer into a witness and pits them against their client 8. Important to maintain prof. privacy of lawyers d. This case was 1947 and 26(b)(3) was 1970 6. Work product protected except when theres no other way to get it s a. 26(b)(3) decision tree (10/27) 1. is it a document or tangible thing? No, not under 26(b)(3) yes 2. is it irrelevant or privileged? Yes, no discovery. No 3. is it prepared in anticipation of litigation. No, discovery. Yes 4. does the party need it and is unable to get it another way? No, no discovery. Yes 5. are there any mental impressions or legal theories in the evidence? No, 100% discoverable. Yes, discoverable minus mental impressions and legal theories. t cant reveal list of who was interviewed b/c that reflects strategy 7. Differences between Hickman and 26(b)(3) a. Hickman applies only to lawyers while 26(b)(3) applies to anyone b. 26(b)(3) applies only to documents and tangible things while Hickman applies to anything B. Expert witness Rule 26(b)(4) 1. like work product but not just document but also the person that is seen proprietarily 2. rules grant protection to experts who have developed info in preparation of litigation not just experts 3. mental impressions of expert witnesses can be discoverable b/c this is the crux of expert testimony 4. testifying experts can be disposed after disclosure (FRCP 26(b)(4)(a))

a.

15

Discovery

26(a)(2) requires as part of initial disclosures, info about experts who may testify and about basis for their testimony at least 90 days before trial together with a report with their opinions, compensation, qualifications, and bases for opinions 5. One issue is that some think it is impossible to cross-examine experts unless you have prior opportunity to depose and see written report 6. non-testifying experts are rarely discoverable (FRCP 26(b)(4)(b)) a. unless you cant obtain facts and opinions by other means b. if theyre discoverable, both parties share costs of experts c. disclosure of identities or opinions not required 7. informally consulted experts a. virtually no way to obtain discovery b. you may be able to get names of informally consulted experts c. Rule 26(b)(4)(B) isnt clear about whether or not these names must be disclosed 8. Reason to protect experts from discovery: a. attorneys need to prepare their cases w/o fear that any negative info they uncover will necessarily be turned over to opposing party b. unfair to allow a party to benefit from the effort and expense incurred by other party in preparing his own case c. unfair to experts and might diminish their willingness to serve as consultants d. risk of prejudice if an expert is retained by both sides 9. party seeking discovery must compensate expert witness for his time unless manifest injustice would result Rule 26(b)(4)(C) 10. Thompson v. Haskell p. 536 psychologist a. P alleged that as a result of sexual harassment by employer, she was fired and became extremely depressed b. Psychologist examined P 10 days after termination. D sought discovery of report c. Here there were exceptional circumstances requiring disclosure of report. In light of Ps allegation, her emotional state immediately after discharge was highly relevant b/c this was only report made on her condition and because of passage of time, D couldnt obtain comparable info by any other means. d. if it is impractical for party seeking discovery to obtain info any other way, nontestifying expert testimony is discoverable 11. Chiquita v. M/V Bolero Reefer p. 537 boat a. Ps expert examined vessel and loading gear. D sought to compel production of file compiled in his investigation. b. Court held opinions of non-testifying expert not discoverable although factual observations are c. No exceptional circumstances b/c D could have sent its own expert to investigate d. Not the case that any document in experts possession is protected from discovery. Like work product doctrine, underlying facts are discoverable while opinions and mental impressions arent. F. Discovery Abuses 1. Types of discovery abuse: a. asking for too much 1. rules limit number of interrogatories and depositions allowed b. providing too little c. mismatched discovery when parties have unequal wealth 2. court may issue protective orders to prevent undue burdens only a showing of good cause by party FRCP 26( c) 3. Two basic ways for court to control discovery: a. protective order: Rule 26 ( c) 1. response to party that asks for too much a. although id party is asking for stuff thats privileged or irrelevant, one may simply decline to answer 2. court may limit discovery even if it is otherwise discoverable if it produces embarrassment, undue burden, expense, etc

a.

16

Discovery

motion to compel: Rule 37(a) 1. response to party who gives too little c. other solution = discovery conference (Rule 16) where judge is involved in framing of discovery plan G. Rule 37 Sanctions 1. Basic idea: a. parties should try to work out their own problems before going to judge b. court has broad discretion whether to impose sanctions or not. Tends to choose least severe or most deterrent one. 2. Before theyre imposed, party seeking discovery must obtain an order compelling discovery. 3. Sanctions can be orders establishing facts, disallowing certain claims, dismissing the case, finding you in contempt of court, etc 4. Rule 26(g) also sanctions on discovery b/c signature of lawyer certifies discovery isnt unreasonable or unduly burdensome or expensive H. Appellate Review of Discovery Orders 1. Not final, so theyre not appealable usually 2. Trial court can certify qst. for appeal 3. Appellate court can issue mandamus if it really wants to review order

b.

17

Discovery

IV.

Settlement A. P or court can dismiss case by filing notice of dismissal (FRCP 41(a)) B. Discovery drives people to settle 1. Reasons a. Leads to rational decision making info exchanges frame the issue very well allows parties to see strengths and weaknesses of case b. Sometimes discovery makes it so you cant afford to continue (worst case) c. Makes people see how expensive it would be to go to trial d. To avoid more embarrassment e. Shift from adversarial pleadings to less adversarial discovery (ex=guys smoking) 2. cases are less likely to settle when result not predictable 3. settlement negotiations can be undertaken with a zero sum approach, a cooperative approach, or combination of two C. Settlement = Contract 1. Thats why courts dont get involved unless class action or incapacity 2. Typical kinds of contract a. to dismiss b. for confidentiality c. for a judgment 3. Both parties give and get things a. For P: 1. money 2. confidentiality 3. clear enforceability 4. enforceable in federal court b. For D: 1. confidentiality 2. promise not to sue c. For both: 1. cheaper 2. faster 3. perhaps qualitatively better b/c can take into account nuances and subtleties in facts and parties interests that could be lost at trial 4. BUT may permit might to triumph over right and deprives public of adjudication on issues 4. voluntary dismissal (Rule 41(a)) file a notice of dismissal at any time before service by adverse party of an answer or of motion for SJ 5. If D wants lawsuit not only to go away but for court to enter judgment on merits, a public act rejection Ps suit, a voluntary dismissal wont do that but involuntary dismissal ( Rule 41(b)) does this is for failure of P to prosecute or to comply with rules. Also allows scope of claim to be defined by doctrines of former adjudication rather than contract of settlement. 6. Future disputes hinge on interpretation of contract D. Court involvement in settlements 1. Courts some times play an active role in settlement in following ways: a. when they need to clear out their dockets b. when parties are having a hard time playing both agreement and adversarial roles at same time the court can bring parties together for settlement conferences c. judges can give estimation of strengths and weaknesses d. judges can act as authoratitve mediators 2. Problems with court involvement (controversial): a. courts should be resolving disputes based on merits b. courts may be said to use coercive judicial power to force settlements c. prejudice: 1. judge may be prejudiced against party that refuses to settle 2. judge will be aware of weaknesses of case, might be biased

18

Settlement

E. F.

G.

H.

statutorily, this is not a big problem b/c magistrate presides over settlement negotiations 3. courts dont review settlement b/c: a. too expensive b. people should be accountable for own actions (autonomy) c. benefits lost if courts get involved d. EXCEPTIONS: 1. class action suits a. to make sure it benefits all and not just those at table 2. minors a. cant accurately assess their interests Settlements affect future disputes Kalinauskas v. Wong p. 583 1. P wanted to depose Ms. Thomas who had signed a confidential settlement agreement for SH action against the same D (Caesars) 2. Court held Ms. Thomas could not discuss terms of settlement but she could disclose facts underlying her action 3. Analogous to work product protection a. you can get at underlying facts b. actual details of agreement worked out by parties not available 4. Courts justification = to avoid duplicate discovery a. dont want parties to start from scratch in order to get relevant details from previous case b. court doesnt invalidate entire settlement, only eliminates confidentiality term that inhibits discovery 1. clause in agreement that allows for courts to alter confidentiality clause 2. if it didnt include this, court would have likely assumed it was meant to be included 5. concerns that court addresses by allowing Ms. Thomas to be deposed: a. ensures that next piece of legislation is efficient w/o duplicative discovery b. general public policy interest in finding out whether Caesars discriminates against women c. preventing deposition would constitute buying silence of a witness with settlement agreement" 6. confidentiality agreements only go so far a. we dont want people buying silence of future witnesses b. but this may undermine confidence in settling Negotiating away Judgments 1. Settlement arises after judgment b/c of appeal: a. same concerns about costs and risks of loss exist at next level of process 2. reasons for settling before appeal trial, rather than awaiting decision on appeal: a. costs of litigation b. bluffing, important in settlement, no longer a factor after judgment Vacatur 1. Why parties want to vacate judgment: a. D may not want to have public declaration of unlawful activity on books b. Party may be afraid that rule of law set forth in case will be applied against it in future 1. vacated judgments dont have precedential weight 2. Neary v. UC Davis p. 589 a. state case didnt set big precedent b. P won $7M in defamation case c. While an appeal was pending, P settled for $3M. In return, he agreed to dismiss appeal w/o prejudice. As part of settlement, parties stipulate that CA should vacate trial courts judgment

3.

19

Settlement

d.

3.

4.

Court holds parties should be entitled to stipulate reversal unless theres a showing of extraordinary circumstances e. Dissent comes up with own rule CA should only approve vacatur when judgment benefits neither the public at large nor third parties f. Arguments in favor of post-judgment settlement 1. settlement is good in that it increases judicial economy a. avoids future expenses for parties and court resources 2. Its in fairness interest of parties denying post-judgment settlement would frustrate parties mutual desires to immediately end long running dispute 3. Purpose of judiciary = provide a forum for peaceful resolution of disputes g. Arguments against post-judgment settlement: 1. vacatur will create disincentive for earlier settlement a. if trying to ease cost of litigation to parties and drain on courts resources, court would want to reduce costs at trial court level. If parties wait until verdict has come in, theyve incurred the cost of litigation and raised different settlement issues 2. diminishes respect given to judiciary a. Dissents argument in Neary purpose of judiciary is to settle issues, interpret and make law not just for parties involved but for others U.S. Bancorp Mortgage v. Bonner Mall -- p. 592 a. Parties settle after a dispute over new value exception. Settlement moots their case. b. After settlement, Bancorp tried to get judgment vacated because nve affected their ability to foreclose 1. decision on matter of law that has more impact that in just this case c. Bonners business will rely on ongoing validity of nve d. Court held that mootness by reason of settlement doesnt justify vacatur of prior judgment 1. theres independent significance to judicial determination. Doesnt exist solely for parties e. only alternative is for Bancorp to go back to AC and have them reconsider judgment 1. might give process more integrity if court that issued the judgment, and only that court, is allowed to give vacatur f. bigger stuff at stake federal Diffences between Bancorp and Neary a. In Bancorp, vacating judgment not part of settlement as in Neary b. In Bancorp, hot, unresolved bankruptcy issue in dispute. In Neary, fairly straightforward defamation case. c. Neary vacates judgment of a trial court whereas Bancorp was asked to vacate judgment of an appellate court 1. Appellate judgments have greater precedential significance than trial court judgments, so SC might have been more reluctant to vacate d. In Neary, both parties agreed to vacature, whereas in Bancorp, only loser wanted the judgment vacated 1. undermines autonomy of parties to settle argument. e. perhaps only when issue applies to private parties, as in Neary, and where there isnt a broader qst of law, it is OK to vacate judgment 1. Bancorp court suggest that even if there were mutual agreement on this private matter, court would refuse to vacate f. In Bancorp, party gave up right to appeal voluntarily, and that is what created mootness 1. this is different from cases where mootness arises unintentionally 2. in this settlement agreement, but for action of loser, the case would not have been moot (Bancorp instigated and wanted a post-verdict settlement b/c they lost)

20

Settlement

If loser chooses not to press legal issue in higher court, that doesnt give him option to challenge opinion (other than through appeal) D shouldnt get benefit of this circumnavigation g. under Federal Rules, vacatur not allowed except under extraordinary circumstances 1. under California Law (Neary), vacatur can be granted unless there are extraordinary circumstances 5. Rules: a. when mootness caused by external factors, not by parties, it is appropriate to facate (thus future cases will be able to be heard all the way up) b. when caused by unilateral action by winner, it is OK to vacate (i.e. winner decides and loser has no part) c. if caused by unilateral action of lower or mutual act, its not OK to vacate(perhaps b/c precedent belongs to community) I. Fee shifting and settlement 1. Rule 68 a. If D offers to settle and P eventually wins less than that ammount, P may not collect costs and must pay Ds costs incurred after offer b. If P should be entitled to attnys fees by virtue of a fee-shiftin statute, costs affected by Rule 68 do include attnys fees c. Must be offered 10 days before trial begins. OR if liability has been determined at trial but amount isnt must be served not less than 10 days prior to commencement of hearing to determine liability. 2. Separating Lawyer and Client: a. Encourages settlement b. Encourages litigation by poorer plaintiffs c. Evans v. Jeff p. 343 1. Court holds that Fees Act (allowing prevailing party to recover reasonable attnys fees in certain civil rights actions) doesnt prohibit settlements which include a condition that attnys waive their fees 2. Attny in this case = legal aid attny == without money from this settlement, theres less money available to serve needy clients 3. Strongest argument for amending Fees Act to prohibit fee waivers like this in settlements = discourages ethical lawyers from pursuit the litigation the Fees Act is trying to encourage b/c lawyers will refuse to take cases knowing they wont be paid 4. Court says -- fee waivers are OK b/c its in the best interest of the client 10. Why Settlements Fail: 1. parties may be overly optimistic 2. bilateral monopoly problems both parties may be bluffing as a part of strategy negotiation 11. Settlement can occur at any time from grievance to after trial

3.

21

Settlement

V.

Prelim Relief (Provisional Remedies) A. Provisional remedies = relief pending final adjudication of suit B. Can occur any time from complaint to trial C. As practical matter, prelim often ends case D. Party feels like he cant wait for trial for relief E. Problems: 1. often based on incomplete info 2. court often asked to act without benefit of adversarial exchange that would accompany trial F. Preliminary Injunction Rule 65 1. Definition: a. Court order directing a party to avoid certain conduct or perform specific acts before court decides on merits of case. b. Consolidation of Prelim Injunct hearing with the trial on merits: Rule 65(a) 1. even if no consolidation, evidence received on application for PI, if admissable, becomes part of record and need not be repeated at trial c. 65(a)(1) no prelim injunction issued without notice to adverse party 2. Temporary Restraining Order: Rule 65(b) a. Sought by a party when situation is so urgent that an injunction must be granted immediately before opposing party can even be heard b. Time limit for TRO is 10 days with possibility of 10 day extension c. Can be ex parte granted without written or oral notice to opposing party if: 1. clearly appears that immediate and irreparable injury, loss, or damages will be suffered by applicant before adverse party can be notified -- affidavit 2. applicants attny certifies efforts to give notice to opposing party and gives reasons why notice shouldnt be required d. If TRO granted without notice, PI hearing will be set for earliest possible time and moving party shall proceed with application for PI e. Types of TROs: 1. replevin court order that requires debtor to surrender goods that creditor asserts have not been paid for 2. attachment seizure of property 3. garnishment asking a third party not to pay D money due to him b/c P has a claim in it 3. Security Rule 65( c) a. party seeking TRO or PI must put down security to protect adverse party against unwarranted injunction b. parties must weigh strength of their cases in light of anticipated amount of security 1. courts actually calculate amount 2. built-in double calculation provides check on unfounded claims for PI c. problem if one reason for seeking injunctive relief in the first place is difficulty of calculating damages, how do you decide amount of security? 4. Inglis v. ITT Continental Baking p. 349 u a. P sought PI forcing D, its competitors to raise bread prices v b. Lower court applied 4 part test to determine whether to grant application: 1. Normal Test a. P will suffer irreparable injury if injunctive relief not granted b. P will probably prevail on merits c. In balancing equities, the Ds will not be harmed more than P is helped by injunction d. Granting injunction is in public interest 2. Alternative Test this court used: a. alternative test is courts four pt. Test the court of appeals says if harm is sufficiently serious, then you only need fair chance (rather than likelihood) of success. 1. courts less likely to use alternative if injunction is the last step

22

Prelim Relief

5. PIs can be issued during a trial if theres a huge gap between time the trial begins and time judgment will be handed down a. often PIs when used as a method for interim relief, turn into last step b/c: 1. they show how court feels about case (might want to go directly to settlement) 2. they change parties positions such that it might not be valid to continue with a trial any longer G. Provisional Remedies and Due Process 1. Rule 64: State law applies to actions involving seizure of property 2. All State procedures for seizure are subject to Due Process Clause (14th Amendment) 3. Fuentes v. Shevin p. 354 a. FL law allowed creditor to seize goods without a prior hearing or notice to debtor 1. creditor had to post bond double value of property to be seized 2. creditor had to assert to clerk in conclusory fashion that it was entitled to writ of replevin a. court order that requires debtor to surrender goods, that creditor asserts they havent paid for, to court or creditor 3. clerk is empowered to issue a writ summarily b. PA law required a debtor to initiate a lawsuit himself if he wanted a post-seizure hearing c. Violation of Due Process Clause b/c: 1. deprivation of property SC says theres a property interest even if P doesnt own goods outright 2. under color of law (state action) the involvement of sheriff and clerk constitutes state action. If they werent involved, P wouldnt have a claim in court under due process 3. without due process- there was no hearing at which P could protest before her property was taken. The SC doesnt discuss what type of a hearing it should be though. d. SC holds that when State authorizes its agents to seize property in one persons possession upon application for such action by another party, there must be an opportunity for deprived party to be heard before deprivation of property takes place e. It is not appropriate/sufficient to rely on creditors assessment of risk (as reflected in security posting) 1. theres a power disparity between large corporation and poor person 2. even if corporations claim is weak, they might seize the property anyway, thinking that the other party lacks the resources to bring an action f. Cost benefit analysis of seizures 1. Like Greene, test for what kind of hearing is dependent on the cost, reliability, and magnitude of interests at stake 2. Cost of increased process < (chance of error)(interest of party with potentially erroneous deprivation) 3. Corporations oblig to post a bond does something to help reduce error rate 4. Not clear how much more should be spent on improved process to reduce error rate further 5. Problem increased process can be costly. Probability of error is likely to remain the same, although cost will go up with additional hearing. a. these costs might be shifted to the customer, the very group were trying to protect with improved process g. creditors can still seize property without a hearing in some circumstances: 1. in extraordinary or unusual circumstances 2. public interest 3. where its likely property will be concealed or destroyed if debtor is alerted to seizure through a hearing h. Are Rule 65 TROs in trouble b/c of this ruling? 1. ex parte hearing = more reliable than none at all 2. Fuentes particularly focuses on parties being heard AT ALL at a trial

23

Prelim Relief

TROs involve timing issues you have an ex parte hearing and will have a PI hearing soon after but the TRO is necessary in a short amount of time. It doesnt last that long and costs of TRO are measured by potential harm to a moving party. H. Timeline (11/4) 1. summary judgment doesnt need trial 2. settlement doesnt want trial 3. prelim. relief cant wait for trial C. look to case law for standards of prelim injunc. Rules are just procedures.

3.

24

Prelim Relief

VI.

Summary Judgment A. Purpose: 1. primary way under notice pleading regime to prevent factually insufficient claims and defenses from going to trial a. Looks at proof. You have to fight it by pointing to something concrete. b. Very common for D. to win b/c P needs to show every element while D need only defeat single element of Ps claim. c. P has burden of proof for most elements. d. Proof thats adequate for P to avoid summary judgment against her is frequently not enough to get summary judgment for her. e. If no one has evidence, D will prevail (b/c P must show POE) f. In some cases, P has proof thats not conclusive in its support for its side thats not enough, has to be stronger than Ds case g. If genuine issue of fact, should go to trial h. Shouldnt be who could get there faster 2. To allow early resolution of cases in which P meets burden of pleading the elements of a compensable claim but cant prove one or more of these elements (b/c if you cant prove one element, you have no claim): a. avoids delay and expense of going to trial b. BUT SJ can lead to additional expenses in discovery b/c parties want to get as much info as they can in order to avoid SJ 3. Avoids potentially irrational decision making by jury B. Timing Rules 56(a) and (b) 1. For P: may be filed any time after 20 days from commencement of action or after service of SJ motion by opposing party a. this period matches 20 day period given to file an answer b. P can file SJ before complaint is served (has 120 days between filing of complaint and service) 1. period of time for riling SJ tied to filing of complaint, not service on D. 2. For D: may file any time although SJ filings usually dont occur on either side until after discovery C. Legal Standard FRCP 56(c) 1. motion shall be filed at least 10 days before time fixed for hearing a. hearing is not on merits of action no live testimony b. hearing explores whether theres a genuine issue of fact 2. SJ shall be rendered if pleadings, fruits of discovery and affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law a. SJ, interlocutory, may be given on issue of liability although theres a genuine issue as to amount of damages 3. SJ appropriate if no reasonable jury could decide in favor of non-moving party (some times) some courts use this a. question of reasonable jury left to discretion of judge b. If reasonable jury could go either way, SJ is inappropriate 4. If granted, appealable. If denied, not appealable until after trial. D. Form of Affidavits, further testimony, defense required FRCP 56(e) 1. Affidavits should be made on personal knowledge 2. Must set forth facts as would be admissible in evidence a. Affidavits dont have to be admissible themselves, but they must show that party has access to admissible evidence 3. must be signed and sworn to statements E. Visser v. Packet Engineering Associates p.621 x 1. age discrimination suit P fired months before pension came to term a. court granted SJ to employer even though P had certain facts on his side (i.e. pension, replaced by younger employee, etc)

25

Summary Judgment

I.

J.

K.

L.

M.

N.

O. P.

court sent msg that when burden is on P to prove a material fact, even some relevant info may not be enough to survive SJ motion c. given Ps burden of persuasion (POE???), he must submit more info. 1. reasonable jury standard theyre not going to believe its because of age 2. burden shifts because mixed motive case D. has to show he would have been fired anyway but P. has to show this is one of the reasons. Defense Required: 1. If movant shows that theres no material issue of fact, opposing party cant avoid SJ merely by repeating his pleadings denial of allegations. Then he must set forth specific facts showing theres a genuine issue for trial. (FRCP 56(e))But the party opposing is not required to make an evidentiary showing unless movant clearly demonstrates the lack of a triable issue of fact (non-movant receive benefit of doubt) Celotex Corp. v. Catrett p. 616 1. P accused Celotext of distributing asbestos containing products that contributed to her husbands death 2. Celotex moved for SJ on grounds that P failed to produce evidence that a Celotex was proximate cause of her husbands death 3. Court held that in an unopposed SJ motion, burden on moving party is merely to show or to point out to court that theres an absence of evidence to support an essential element of non-moving partys claim a. moving party (celotex) does not, therefore, have to affirmatively prove theyre not responsible b. merely have to point to an absence of clear evidence much easier standard c. P. has burden d. Dissent called for a more exhaustive account 4. Big deal case set forth that D. doesnt have to negate claim. Summary judgment now more popular Affidavits unavailable FRCP 56(f) 1. If adverse partys affidavits show party cant, for reasons stated, present by affidavit essential facts to justify party' opposition, court may order a continuance, etc.. so party may obtain necessary materials Affidavits in bad faith FRCP 56(g) 1. If the court is satisfied that affidavits are presented in bad faith, or solely to delay, court can order party to pay reasonable expenses including attnys fees and any offending party or attny may be held in contempt Green v. Lindsey (packet first case see earlier) 1. case was presented on cross-motions for SJ 2. tenants would argue that theres no genuine issue of material fact posting simply was unreliable 3. sheriffs response even assuming we agree on reliability of posting, it doesnt matter b/c posting doesnt violate Due Process as a matter of law 4. SC could therefore deny sheriffs SJ motion b/c 70 year old law no longer applied and could deny tenants SJ motion b/c facts were in dispute Bottom Line 1. point of SJ is to avoid trial but parties have a constitutional right to a jury trial and the general interest lays in getting to underlying facts in a case 2. qst. of whether SJ is appropriate is therefore couched in terms of whether reasonable trier of facts would find that theres no issue about a material fact Concerns about summary judgment 1. might get wrong decision 2. deciding on paper rather than in person Comparison of SJ with 12(b)(6) 1. similarities: a. both ask a court to get ride of a case based on substantive law b. both point to lack of support in record for a partys claim 2. differences:

b.

26

Summary Judgment

a.

SJ pierces the pleading by looking at actual proof behind pleading 1. even if it appears from pleadings that parties are in dispute on some material issue of fact, SJ motion may be granted if movant can show that theres no issue of fact presented by pleadings (it only appears that way) 2. 12(b)(6), in contrast, assumes that allegations put forward in complaint are all true and is granted when theres a flaw in pleading (not a flaw in evidence, as in SJ) a. parties can plead things vaguely enough in a complaint, under notice pleading regime, that it will not become clear until later that theres no issue of a material fact. Case can then be dismissed by SJ. b. In SJ motions, court issues a judgment on merits (res judicata and collateral estoppel implications???) 1. in 12(b)(6), court dismisses complaint w/o making decision on underlying merits a. in addition, judge may allow for amendment c. SJ can be brought by either party (although its easier for D to prevail) but 12(b)(6) only brought by D e. SJ can resolve portions of complaint but 12(b)(6) is all or nothing f. Affidavits and fruits of discovery must be attached to SJ motion as additional support for motion 1. 12(b)(6) stands alone no additional info is attached b/c it only looks at the face of the complaint

27

Summary Judgment

VII.

Jury Trier of fact A. Background 1. Fact-finding before juries (trial by ordeal, etc) 2. First juries self-informing and chosen for being experts 3. Rest of system merged law and equity but not jury part 4. Purpose = resolve disputes of fact a. determine facts b. evaluate legal consequence of facts according to judges instructions c. present the result of deliberation in a verdict 5. FRCP 39 trial shall be by jury unless parties consent or court finds right to jury trial doesnt exist B. Why have? 1. provide peoples safeguard. Basic piece of democratic system 2. thought to be more sympathetic to rural over urban, domestic over foreign 3. might protect against political whims 4. 7th Amendment C. Jury good 1. group decision making 2. range of perspectives 3. operates in black box (neutral) D. Jury bad 1. single decision maker may be betterjury may be indecisive and have a deliberation problem 2. expertise problem 3. expensive to get juries. Jury trial also more formal and expensive 4. black box 5. jury nullification E. Who gets a jury? 1. 7th amendment In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trail by jury shall be preserved a. FRCP 38(a) right of trial by jury as declared by 7th amendment shall be preserved b. FRCP 38(b) any party may demand a trial by jury of any issue triable of right by a jury by serving upon other parties a demand at any time after commencement of action and not later than 10 days after service of last pleading and then filing the demand. c. Failure to serve and file a demand constitutes a waiver by party of trial by jury (38(d)) 2. If Court of Chancery (equitable claims), no jury a. injunctive relief, specific performance, multi-party, rescission, accountings, procedural devices such as derivative suits, class actions, bills of peace, and bills of interpleader, also fraud, mortgage, trusts 3. How do you decide? 4. General Rule: try to match modern cases to those in equity and CL courts in 1791. Helpful guideline: when relief sought is damages, theres a right to jury trial. When injunctive relief is sought, theres no right to jury trial. a. problem is with modern claims, where its not easy to match the modern claim to the 1791 claim, particularly if its a new type of case, or one brought under a new statute. 5. any kinds of relief Common Law allowed for as of 1791 ex = damages, straightforward suits a. mismatches between 1791 and now 1. changes in forums a. administrative agency 1. Reasons to retain jury right in an administrative context a. Area used to be governed by jury trial & still have a right to be tried by peers

28

Jury

less biased b/c not insiders govt. actor is prosecutory, govt insider is judge, this is exactly where there should be regulation and outside eyes, to offset the strong govt influence c. ALJs have political considerations d. Congress shouldnt be able to do indirectly what it cant do directly (limit the scope of jury trial under 7th amendment) 2. Arguments against juries in these situations: a. Appeals of these types go straight to Court of Appeals which affords protection against an agency biase b. expertise problem we want expertise in trial, repeat adjudicators, and consistency all things that will be lost if the case is tried by jury. c. take longer and whole part of ALJ = efficiency d. this is not a private dispute: involves interests of government as sovereign. Not analogous to historical view of right to trial by jury in cases that were based on private issues 3. Atlas Roofing v. OSHA p. 663 a. no right to a jury trial b. 7th Amendment not a bar to procedural innovation 1. Congress can create administrative agencies and assign them matters that might otherwise have been heard by a jury c. Supreme Court holds that when public rights are being litigated, no right to trial by jury exists 1. public case where the government acts in its sovereign capacity 4. Granfinanciera v. Norberg p. 664 a. bankruptcy courts operate without juries. Company wants jury trial. b. Historical analogy is fraudulent conveyance jury trial in 1791 so does establishing another court system (admin) get rid of that right? c. Problem with jury, according to Trustee: 1. will slow down process of dissolving assets and clearing the books. 2. This is an administrative proceeding, which normally doesnt have a trial by jury 3. Loss of expertise if tried by a jury d. benefit from having a jury 1. fraudulent conveyance comes down to intent which involves classic questions of witness credibility e. Supreme Court holds that although it might be less efficient/effective, that does not mean that it is possible to circumvent the 7th Amendment right to trial by jury f. Bottom line: 1. if case is brought before an administrative agency, created by Congress, theres no need for jury 2. if court of any kind is involved, then the jury trial should be available. a. this is not true when the case concerns the interests of he government in its capacity as sovereign b. thats why there was a right to trial by jury in Granfinanciera but not Atlas -the former was more of a private disupte and the latter was more public (govt as sovereign) 2. changes in procedure a. what if you have overlapping issues from merger of law and equity?

b.

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Jury

Beacon Theatres v. Westover (westover = lower court judge) p. 667 1. Facts a. Fox wants injunction to keep Beacon from bringing anti-trust claim b. Fox also asks for declaratory judgment ( a binding decision without coercive or punitive effects all it says is Im not liable) that grant of clearance is reasonable (fact that hes the only one showing movies is OK) c. Beacon counterclaims against Fox for treble damanges and states anti-trust and demands jury trial d. DC says complaint for declaratory is equitable so no jury e. CA refuses to upset DC f. SC says DCs finding that they presented basically equitable issues doesnt have any support under Rule 57. Holds that right to a trial by jury must be determined issue by issue (not case by case) and where there are both legal and equitable claims, trial judges must ordinarily hear the legal claims first (jury before judge). 1. preserves parties rt to jury trial 2. only in cases where the party asserting equitable claims would be irreparably harmed by a delay in these claims until after the hearing of a legal claim, could the court hear the equitable claim first g. (This case is against the judge b/c its basically a suit to get him to give them a jury trial) h. writ of mandamus case 2. rule = where cases mixes equity and law, try jury issues first and that will bind judge 3. you dont lose anything by merging claims 4. hard b/c injunctive relief is sought and that is traditionally equity 5. Declaratory judgment is neither legal nor equitable (if it were, people would use it to destroy/create peoples right to a jury trial). Instead, underlying issues control whether there is a right to a jury trial in a declaratory judgment suit. 6. If Constitution provides for jury trial, right cant be taken away but can be added to 7. No comparable right for judge trial 8. Chauffers, Teamsters and Helpers v. Terry p. 652 a. Truckers sue union, alleging violating of duty of fair representation and violation of collective bargaining agreement (didnt process 3rd grievance) b. No historical match for collective bargaining in 1791 c. Violation of duty of fair representation resembles breach of fiduciary duty (b/c the union was fulfilling a representative role and the employees didnt have direct control over what the union did on its behalf) which was equitable in 18th century England. d. BUT this doesnt end inquiry. The court breaks the claim into parts: 1. violating of collective action bargain (comparable to breach of contract legal issue) (CL) 2. breach of duty of representation (equitable) 3. AND: remedy = back pay (compensation clearly common law) e. remedy is more important than claim b/c less likely to be stretching (remedy hasnt changed much since 1791) f. claim determination uses more court resources g. Brennan concurrence says why bother looking at claim h. Stevens wants to go in more functional directions what kind of cases do juries do well? F. Jury Composition 1. Jury can be as small as 6 no more than 12 in federal system (FRCP 48)

b.

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Jury

2. Needs to be unanimous in Federal system -- FRCP 48 3. Voir dire is the first opportunity for lawyers to begin teaching jury about the case G. Jury Selection 1. Who is on juries? a. fair cross-section of community (28 USC 1861) 1. you dont just use voter registration lists b. whats appropriate range of diversity 1. you can omit some groups convicted felons 2. look for differences in perspective a. race and gender is problem c. right to be in jury pool, not to be on jury. all citizens should have opportunity to be considered for service and shall have obligation to serve as jurors when summoned (28 USC 1861). 1. not excluded from jury pool on basis of race, etc 28 USC 1862 2. How juries are selected FRCP 47 a. 28 USC 1863 each U.S. district court shall devise and place into operation a written plan for random jury selection 1. people can challenge compliance with selection procedures 28 USC 1867 b. voir dire (qsts.) combo of judge/lawyer. Judges participate much more in federal system c. exclusions 1. for cause when a juror is dismissed due to bias, interest, or prejudice. lawyers requests. Always judges decision. Great deal of discretion. Used sparingly (FRCP 47(c)) 2. peremptory (28 USC 1870) in civil case each side allowed 3 so each side doesnt get a lot of say regarding what juries look like. a. why have? 1. exclude extremes 2. goal = fair jury 3. verdict = easier to swallow b/c parties may feel like theyre choosing jury 4. may have alienated a juror during questioning 5. intuition for hard to justify b. why not? 1. these exclusions play into litigation being game of manipulation 2. discriminatory and may conflict with idea of cross-sectional jury c. Batson v.Kentucky p. 681 1. used to be able to use peremptories without justification but now b/c Equal Protection Clause 2. party bringing claim of exclusion must show prima facie evidence. D. has burden of showing race-neutral justification. 3. Batson is for criminal cases 4. Batson violated right of D. (black) and juror 5. Powers v. Ohio p. 682 a. violated right of D. (white) and juror b. criminal D, regardless of his race, may object to a prosecutors race-based exclusion of jurors d. Edmonson v. Leesville Concrete Co. p. 681 (truck rolling backwards on P) 1. Issue: did Ps use of peremptory challenges violate jurors Constitutional right to equal protection? a. Supreme Court uses 5th Amendment (implied equal protection clause) in their argument. Due Process right (on a federal level) is interpreted by SC to be anti-discriminatory right. 2. civil, not crim, case so P. is no longer prosecutor, a state actor 3. private parties acting on behalf of government selecting jury (in previous two prosecutor was state action)

31

Jury

4.

SC finds jury selection is a state action b/c: a. calling in of jury = state function b. use of peremptory challenge: jury selection is a government process, a piece of which is delegated to the parties at trial to be used in the construct of a govt. proceeding c. its in our building 5. SC holds that race-based peremptory challenges violate the equal protection rights of the dismissed jurors 6. Here its D. offering right, not P. a. Scalia said can be used against minority defendants 7. Litigants cant use peremptories to get a more diverse jury 8. Third party standing and government action can Edmonson sue on behalf of jurors claiming to be protecting their const rights? a. basic rule is that parties can assert violations of their own rights. Here, SC gives the three factors to consider in deciding whether a litigant may raise a claim on behalf of third parties: 1. Concrete injury to litigant a. D has suffered an injury that gives him an interest in pursuing the claim of the violation of the jurors rights to the fullest extent possible 2. Close relation to party a. hardest to show: shared interest between litigant and juror 3. Inability of third party to assert their rights themselves a. jurors are not likely to bring their own separate claim even if their rights were violated 9. Bottom line of Edmunson a. must show prima facie case of race-based exclusions b. the burden is on the dismissing party to give a racially-neutral justification for dismissal c. the courts are to look at pattern of race-based exclusions 1. However, its hard to show or infer a pattern when there are only 3 peremptories, as there are in civil cases 10. Dissent disagree with state action points a. every time a challenge is made, mini-trial will ensue on whether the peremptory was race-based b. good lawyers will be able to come up with better pretexts to avoid objections that peremptories are being made on race-based grounds 1. this would favor wealthier clients who can afford better lawyers 2. however, this objection could be made about almost any rule 11. JEB p. 686 extended this principle to gender (paternity action) a. For example, if youre looking for a group of shoppers on a jury, its OK to ask questions about shopping and up with an all female jury b. Its not OK if you exclude all men on the basis that its common knowledge that all women shop.

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Jury

VIII.

Trial A. Ways Judges Control Juries 1. voir dire process 2. control of evidence 3. instructions to jury Rule 51 no party may assign as error giving of instructions unless party objects before jury retires to consider verdict 4. special verdicts Rule 49(a) restricts power of jury by requiring a special written finding on each issue of fact, rather than issuing a general verdict 5. General verdict with Interrogatories Rule 49(b) judge may require a general verdict to be supported by interrogatories as to specific findings of fact 6. judges ability to comment on evidence 7. limited instructions of issues B. Controlling Pre-verdict 1. judgment as a matter of law (directed verdict) a. stops the case from going to the jury and determines the outcome as a matter of law b. when a party has been fully heard on an issue and there is no legally sufficient basis for a reasonable jury to find for the party on that issue, the court may determine the issue against that party and may grant a motion for JAML against the party with respect to a claim or defense that cant be maintained under law without a favorable finding on the issue above. FRCP 50 c. what could a rational jury use? (JML and SJ both use this) d. this is only in jury cases, otherwise Rule 52 e. Timing: 1. can be brought up any time before submission of the case to the jury FRCP 50(a)(2) 2. can only be brought up after close of evidence on that issue (Rule 50(a)) 3. either party may move for JAML after the other side has rested a. in order to file motion for JAML (JNOV), the moving party must have moved for a JAML(DV) at conclusion of all evidence f. Rules different courts use re: how much evidence to look at (burden of prod) to see if JAML (DV) or (JNOV) is justified: 1. favorable evidence some courts just look at Ps evidence. If this isnt enough to cross x-line, it wont go to jury. Is evidence in favor of party (who wants jury trial) enough, by itself, to send case to jury? 2. qualified favorable (what federal uses) looks at non-moving partyse evidence in a favorable light and unimpeached, uncontradicted evidence of opposing party and examines 3. all evidence (but with all reasonable inferences most favorable to party opposed to motion) starts to look like a new trial standard a. gives trial judge power to resolve conflicts with direct testimony and determine whether a jury could reasonably believe or disbelieve witnesses b. therefore, a judge could properly grant a JAML for D if he has overwhelming evidence and the jury couldnt reasonably believe Ps testimony g. difference from SJ: 1. JAML is a judgment on what evidence actually is during trial but SJ is a judgment on the representation of what evidence is likely to be 2. Similar standards for granting: a. SJ no genuine issue of material facts exist b. DV no reasonable jury could find any other way c. JNOV no reasonable jury could decide as they did h. Reid v. San Pedro, LA, SLC RR p. 704 1. Cow is hit by train near a gate in fence along tracks. Fence is broken a mile away. 2. P has to show (burden of production) that it was more likely than not (burden of persuasion = poe) that the cow went through the broken fence

33

Trial

directed verdict didnt pass rational jury test a. a jury couldnt have found it was more likely cow went through hole in fence vs. open gate b. didnt meet burden i. Pennsylvania RR v. Chamberlain p. 720 1. Ps evidence could support either one of two inconsistent inferences: either crash occurred or it didnt 2. Ds evidence supports inference that crash didnt occur 3. Ps evidence isnt strong enough on its own for a reasonable jury to infer that crash occurred problem with Ps evidence supporting either of two inferences. 4. if evidence is impeachable or contradicted, it goes to jury 5. if one side has evidence that can be read two ways and other side upholds one of the inferences, the court thought not a contradiction of fact so doesnt have to go to jury j. use more sparingly b/c it takes away from jury C. Post Verdict Control 1. JNOV a. no legally sufficient evidentiary basis for a reasonable jury to find for party = standard, same as preverdict judgment as a matter of law. Results in immediate entry of judgment in favor of the loser of the verdict. b. Reasons why wed rather have this than directed verdict 1. appellate court can reinstate jury verdict 2. juries tend to be rational 3. judges would rather juries be the ones to give bad news c. you have to move for directed verdict at the close of all the evidence if you want JNOV later (Rule 50(b)) 1. this way judge can give other party chance to supplement their case d. motion must be renewed within 10 days after entry of judgment. e. Motion may alternately request a new trial or join a motion for a new trial under Rule 59 f. cant appeal b/c you think juries verdict is absurd only as a matter of law g. appellate standard for both JML = de novo h. 59(c) if renewed motion is granted, court shall also rule on motion for new trial 2. New Trial Rule 59 a. may be granted to all or any of parties on all or any of issues b. Grounds for Granting new trial 1. Procedural errors (as long as they caused harm) a. for example, admission or exclusion of evidence b. judges can also move for JNOV 2. Decision errors a. juries are idiots verdict is unjustifiable (jury may have misunderstood or ignored instructions) b. against weight of evidence 1. doesnt make a winner out of a loser. Merely begins contest again. 1. Lind v. Schenley Industries p. 733 a. judge abused legal discretion by granting JNOV and alternately new trial. This court said he substituted his verdict for that of jury when he said it went against the great weight of evidence. He tried to push appellate standard to de novo. b. Court held that when a jury trial is on a familiar and simple matter and the qst is one of credibility, the judge intrudes on fact-finding province of jury by granting new trial c. Dissent suggests that if it is reasonable for trial court judge to find that the verdict was against the weight of the evidence and to order a new trial, then the trial decision should stand. 3. Other reasons

3.

34

Trial

b.

c.

d.

e.

f.

a. misconduct (lawyers or jurors) b. new evidence c. surprise 3. standard for appellate review of new trial is abuse of discretion whereas for judgment as matter of law, its de novo appeal no deference to trial court Timing: 1. Renewed motion for JAML (JNOV) may be joined in motion for new trial under Rule 59 within 10 days after judgment has been entered. (FRCP 50(b)) a. if JNOV granted for one party, other party can move for new trial (50(c)(2)) within 10 days of entry of judgment 2. Time for motion: (FRCP 59(b))-- any motion for a new trial shall be filed no later than 10 days after entry of judgment 3. Time for serving affidavits (FRCP 59(c)) a. when motion for new trial is based on affidavits, they shall be filed with motion b. the opposing party has 10 days after service to file opposing affidavits On Courts Initiative; Notice; Specifying Grounds (Rule 59(d)) 1. No later than 10 days after judgment, court may order a new trial for any reason for which it would grant one on a partys motion 2. After giving parties notice and opportunity to be heard, the court may grant a motion for a new trial for a reason not stated in the motion 3. When new trial is on its own initiative or for a reason not stated in the motion, the court shall specify grounds in its order. a. differs from JAML (JNOV) which must be made through a motion of one of parties b. judge has more discretion to grant a motion for new trial b/c this motion runs less or a risk of abridging 7th amendment than JAML(DV) does 4. Judge may grant a trial b/c of what he concludes were his own errors during trial Granting of JAML (DV) distinguished from new trial: 1. JAML (DV) is only supposed to be ordered when there are no direct conflicts in evidence but NT consideration can look at and assess the relative strength of evidence Four possibilities when JAML is joined with new trial motion 1. Both motions are denied when trial court denies both motions, AC may order either JAML or new trial a. AC has more latitude to grant either JAML or new trial when verdict loser asserts error of law 2. JAML granted, new trial conditionally denied verdict winner can appeal. AC can reinstate original verdict or order a new trial 3. JAML granted, new trial conditionally granted verdict winner may appeal. 4. JAML denied, new trial granted no final judgment so appeal may not be heard until new trial has been completed a. if judgment after 2nd trial goes against the original verdict winner, the original verdict winner may appeal the grant of a new trial b. in general, courts are reluctant to overturn trial judges new trial decisions but will more often overturn his JAML rulings appeals granting new trial judgments cant be appealed 1. only final judgments are subject to appeal and new trial isnt final 2. in theory, nothing prevents endless repetition of new trials but parties usually settle before this happens (litigation costs) 3. If P wins the first trial but new trial is granted and P loses 2nd time, P can appeal new trial that was granted and say that there never should have been a 2nd trial (this is true even if second trial conducted perfectly) 4. Some state courts allow interlocutory appeals of new trial decisions but fed courts dont 5. Courts may order a new trial on only one issue, for example, damages

35

Trial

a. if damage award is obscenely high, decision may have been irrational b. however, there may be an interconnection between liability and damages c. juries may base their award of damages on certainty of liability g. if new trial is denied, you can appeal (appealing both judgment granted and denied new trial) h. if you have JML and new trial together, if appeal on one is raised, court looks at both (seen as a package). 3. Standards of appellate review of new trial and JAML (JNOV) decisions by a lower court a. de novo review: 1. JAML are reviewed de novo 2. Ex = was the jury instruction proper? b. abuse of discretion: 1. here the court reviews range of trial courts discretion 2. new trials are reviewed under this standard 3. example = was imposition of rule 11 sanctions appropriate? c. conditional ruling 1. JAML (JNOV) motion may be joined with a motion for a new trial under 50(b) 2. If trial judge grants JAML (JNOV) motion, he must also rule conditionally on trial motion 4. CA can order JNOV itself if case is appealed at that point if opposing party felt original trial was flawed but he didnt need to bring it up earlier b/c the verdict used to be in his favor, under 50(d) he can raise this argument at appeal stage y 5. Writ of Mandamus a. directs district courts behavior b. only way to appeal new trial c. used to straighten out immediate qsts arising during trial, when immediate appeal is not available d. generally not used except when challenging granting or denial of a jury trial as in Beacon Theater e. obtain it in original court that issues the writ f. not actually an appeal so it doesnt challenge authority of DC g. a lot of people find it tempting to use against interlocutory but courts dont like to do it only exceptional circumstances amounting to judicial usurpation of power 6. Conditional a. partial retrial new trial limited to damages 1. problem = cant be sure determination of one tainted other b. Remitturer 1. judge orders new trial unless winner agrees to reduce damages 2. not appealable choice is between accepting remittitur or preparing for a new trial. 3. relates back to common law so constitutional 4. standards: a. courts generally use the shocks the conscience test when deciding whether it is appropriate b. court has three possibilities to which it can reduce the amount: 1. highest reasonable amount 2. reasonable amount 3. lowest reasonable amount 5. additur makes an award no jury ever made but remitturer just adjusts it so SC said remitturer doesnt violate 7th Amend c. Additur 1. judge orders new trial unless losing party agrees to increase damages 2. cant be done in federal court according to SC d. You can make all post-verdict motions in one thing D. Burdens of Pleading, Persuasion, Production and JML 1. Burden of Pleading

36

Trial

P bears burden of pleading elements in support of his claim 1. If P fails to fulfill burden, the claim can be dismissed under 12(b)(6) b. D bears the burden of pleading affirmative defenses 1. If D fails to fulfill his burden, he waives right to affirmative defense c. Failure to plead a necessary element or affirmative defense can be fixed through an amendment. 2. Burdens of Persuasion: a. defines extent to which trier of fact must be convinced of a proposition in order to render a verdict for the party who bears the burden 1. in civil cases it is the preponderance of the evidence or more likely than not 2. in criminal cases it is beyond reasonable doubt b. party with burden has to show that their case is more likely, more probably if it looks from the evidence that either side could be right, the party with the burden of persuasion has lost 3. Burdens of Production a. who bears the burden of production in a civil case often matters 1. requires a party to produce, to find and present the evidence in the first place b. burden of production for P is relevant to the question of whether or not case will go to jury 1. has P produced enough evidence that, given Ps burden of persuasion, a reasonable jury could find in his favor? 2. Note link between burden of production and persuasion a. if no evidence is produced on either side, P has failed both production and persuasion b. if theres lots of evidence on both sides, P has met burden of production but failed persuasion 3. different parties may have burden of production on different issues a. in negligence case P has burden of production of Ds negligent behavior b. D has burden production as to facts material to her defense of

a.

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Trial

IX.

Appeals A. General 1. everyone has right to appeal once (federal system). SC appeal is discretionary. a. Why discretionary? 1. deference to trial court expertise (CA constrained by record and doesnt hear live testimony). Want to inspire confidence in trial court judges. a. counter-arguments: 1. CA only focuses on narrow issue so it may in fact be in a better position than trial court to reach decision 2. Easier to determine when a witness is lying from transcript than it is from live testimony rebuts assertion that trial judge is in a better position than CA to assess credibility of witness 2. resource issue we dont have enough 3. would lead to incentive to be sloppy first time 2. only from final decisions 28 USC 1291 3. judgment must be adverse to appeal. adverse = judgment granting relief different than what was required 4. now that discovery and pretrial processes are such big parts, the final judgment rule doesnt just defer but eliminates some appellate reviews 5. mootness relief no longer possible or needed so you can no longer appeal. Classic exception = capable of repetition 6. time limits: a. within 30 days for typical appeal and 60 for appeal involving US b. this is critical b/c time limits are jurisdictional i.e. CA has no jurisdiction to hear appeal if it is late 1. But DC can let trial judge extend time to party who didnt receive notice of judgment in question if no prejudice to other parties results c. filing too early used to be a problem but now if finality is only waiting for post-trial motion, it is held in abeyance d. Rule 58 this is why they try to make moment of judgment clear set forth on a separate document B. Distinction Between Review of Questions of Law and Questions of Fact 1. Distinction: a. trial court conclusions of law are not entitled to any deference and are reviewed de novo by CA. b. trial court findings of fact can be overturned only if clearly erroneous 1. if no jury, review is clearly erroneous with respect to facts 2. if jury, review is in the absence of substantial evidence with respect to facts 2. Why is there this distinction? a. law translates to paper much more easily than facts b. we care about having universally articulated principles of law but not of facts 3. Findings of facts Rule 52(a) a. in all trials without jury (or with an advisory jury), the court shall find the facts specially and state separately its conclusions of law thereon b. if loser of non-jury trial appeals, CA will generally accept trial judges finding of fact (theyll be set aside only if clearly erroneous) C. Review of credibility determinations: 1. CA gives deference to trial courts judgment of credibility 2. Clearly erroneous standard usually applies just to credibility determinations a. court can usually exercise de novo review of other documents and D. Aetna v. Cunningham (packet p. 32) (adversity example) 1. Aetna has two separate claims against D contract claim and fraud claim 2. D was found liable on contract claim but not on fraud claim. P appealed even though it already won requested relief under contract claim 3. Issue can they Aetna appeal even though they won on contract claim?

38

Appeals

Aetna would prefer to win on fraud claim b/c the contract claim is dischargeable in bankruptcy (aetna thought D would more than likely file for bankruptcy) 4. Court holds that when denial of one claim results in prevailing party not getting relief to which it claims to be entitled, either in amount or quality, prevailing party has a right to appeal a. P appealed and lost on fraud claim anyway 5. won on theory that could be adverse this pushes limits E. Waiver 1. must be raised in trial court in order to be appealable a. that way Appellate court has record and trial court could fix during trial b. dont want to undermine trial courts authority as primary arbiter of case c. encourages party to raise objections when they can be corrected 2. Exceptions to not hearing an issue not raised in trial court a. Plain error doesnt have to be raised by parties because threatens reputation of courts (narrow exception) b. Prevailing party defending decree 1. Mass Mutual v. Ludwig (p. 36 packet) a. Contract interpretation qst Ludwig sued for double indemnity. Mass Mutual, the insurer, argued that only ordinary benefits applied b. DC held that MI law applied and that under MI law, insurer only had to pay ordinary benefits c. Ludwig appealed. d. On Ludwigs appeal to CA, Mass Mutual argued that lower courts interpretation of MI law was correct and alternatively, even if IL law applied, Ludwig would still only be entitled to ordinary benefits e. Court of App reversed trial courts decision but w/o reaching question of which state law applied. Said insururer precluded from arguing b/c didnt cross appeal. SC said prevailing party doesnt waive if defending decree. (Plus couldnt have brought it anyway b/c not adverse) f. Court held that if all youre doing is defending judgment below, you can raise the issue on appeal, without having to cross-appeal 1. this is true even if issue raised on appeal uses a different reasoning from that used by lower court. As long as it still supports judgment of lower court, theres no need to cross-appeal g. However, when trying to expand judgment below, its necessary to crossappeal c. subject matter jurisdiction can always be raised d. when issues are so entangled e. significant changes in law 1. Carson Products v. Califano (packet p. 33) a. D can raise issue first time on appeal b/c exceptional circumstances b. FDA ruled Carson had to disclose secret ingredient on their label c. On appeal, Carson raised a due process attack on FDA procedures for the first time 1. another case had been decided, after judgment in this case, that FDA procedures with respect to trade secrets were unconstitutional d. This was considered to be an exceptional circumstance therefore Carson could appeal even though it had not raised due process issue in lower court e. Test for exceptional circumstances 1. dramatic, important change manifest injustice would occur if Carson were denied right of appeal 2. prejudice issue both parties had opportunity for full briefing on issue 3. competence of court purely a legal decision no new factual issues. CA was therefore in just as good of a position as lower court to consider issue. Plus other side wasnt at disadvantage F. Finality of Judgment

a.

39

Appeals

1.

2. 3. 4. 5. 6. 7. 8.

9.

In order to appeal, judgment has to be final (28 USC 1291) b/c: a. delay b. cost-factors 1. cost of allowing appeals are extraneous costs of an extra appeal if trial court was correct 2. cost of not allowing is perhaps an unnecessary trial or unnecessarily long trial c. if you could appeal in middle of trial, you would mess up process d. keeps you from having micro-management e. trial court decisions are usually upheld f. if its a difficult question of law, district court can ask App. Court to certify issues 1292(b) not used much Arguments against: a. denial of appeal is often like resolution on the merits Possible solutions: a. let App. Court do rough cuts on merits b. hardier use of 1292(b) if DC self-identifies it as tricky thing, let it go up right away problem = some times difficult to tell which judgments are final. Litigants some times learn too late that a decision disposing of their claim was final and their rt to appeal has run in meantime. most appeals denied so credibility of trial courts is maintained took appeals from common law and it is at odds with the rest of system which is more like equity. (historical argument against final judgment rule) CA has jurisdiction over appeals from all final decisions of District Courts -- 1291 Liberty Mutual v. Wetzel p. 752 a. DC finds D liable under Ps motion for partial SJ but withholds granting any relief b. D then asks for stay of injunction, under assumption that DC had granted injunction. D then appeals. c. CA takes case on its merits and affirms decision. d. SC hears case on its merits and then raises issue of appeal on its own motion e. SC looks to form of relief to determine whether there was final judgment f. Here, no relief granted so no final judgment. Partial SJ on liability interlocutory under Rule 56(c) and isnt final g. Not final if injunction was granted or denied. It would have been final if it was granted but it was postponed. h. Liability determination doesnt count as Declaratory relief as P argued it did i. Court messed up. j. You can appeal a single issue if final. Separate claims that are triable separately are separately appealable otherwise perverse incentive to bring cases separately and not use more efficient joinders k. Refinement of what it means to be final Exceptions to Final Judgment a. 54(b) some, not all claims, are resolved so you can appeal on those. Focused exception. b. 1292(a) if injunction granted or denied, then final. Ct of App must review if party appeals. Focused exception. 1. applies to preliminary injunctions 2. doesnt apply to TROs (probably b/c of short length 10 days) 3. doesnt apply to denial of SJ in favor of a party seeking permanent injunction b/c ruling is not a rejection of a claim on its merits. Trial will still follow. 4. Appropriate b/c of their special nature and potential for harm c. 1292(b) interlocutory appeals -- where DC certifies an issue of law to CA if appeal would speed ultimate resolution of case and the question is legally important 1. discretionary. They only accept 50%. 2. Party seeking review must apply for appeal within 10 days of order 3. District judges wishing to create possibility of an interlocutory appeal of a nonfinal order must certify that order:

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involves a controlling qst of law as to which there is substantial ground for a difference of opinion and an immediate appeal from order may materially advance ultimate termination of litigation 4. most common grounds for rejection is it doesnt materially advance d. collateral order (practical finality) 1. conclusively determine disputed question 2. resolves important issue separate from merits 3. effectively unreviewable on appeal of final judgment 4. if these three conditions met, mandatory review 5. Lauro Lines v. Chasser p. 760 a. Facts: 1. P sued for damages suffered during hijacking in a NY court. Lauro moved to dismiss suit, arguing that forum selection clause on back of tix dictated that case be tried in Naples, Italy 2. Court denied motion to dismiss. Lauro tried to appeal arguing that their right is to be sued only in Naples and allowing suit in NY destroys their right b. Here first two parts of Collateral are met but not third. Court focuses on third prong of test and says its reviewable later so therefore, not a collateral order 1. right to a forum in Naples can still be vindicated after trial in NY 2. D will lose time and money fighting suit in NY but costs of unnecessary litigation are not enough to justify allowing immediate appeal of a pre-trial order c. dont lose right to be tried in Italy this is different than right only to be tried in Italy 1. Scalia says this isnt important right but technically you could phrase anything like this a. denial is destruction of rt to have forum in Italy b. but rt is simply not important enough to allow an appeal w/o there being final judgment d. Hard to apply collateral order doctrine without looking at merits of claim 1. Lauros asserted rt is not on same level as absolute or qualified immunity 2. Denials of motion to dismiss that are based on a claim of immunity from suit may be appealed immediately 3. Lauros claimed right is more like a claim that court doesnt have jurisdiction over the matter, which is not appealable if denied e. writ of mandamus also = exception to final judgment see under Trial section G. Standards of Review 1. Abuse of discretion deals with law. Was DC in range of appropriateness? a. ex. of when we use = new trial, amendments (more aggressive), some evidence questions b. even if you disagree, it its within range, its OK (lots of deference) c. soft standard how its applied is case dependent d. against great weight of evidence is also example of this. It is on the more aggressive end of the spectrum b/c were taking case away from jury (jury verdict) 2. de novo deals with law a. court starts fresh b. does rely on DC record. They dont regather evidence. c. Ex = judgment as matter of law (b/c straight legal sufficiency qst), jury instructions, some evidence questions, new trial procedural errors 3. clearly erroneous a. applies to judges findings of fact even when theres a jury b. soft standard thats discretionary

a. b. c.

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Appeals

c.

Anderson v. Bessemer City p. 772 (recreation director only one woman applied) 1. Trial court made a determination on findings of fact and law (no jury). a. CA reversed finding of discriminatory intent on grounds that finding was clearly erroneous 2. SC held that Ct of App misapplied clearly erroneous standard and acted as fact finder. Really did de novo. Didnt ask could court come out this way but rather, should it have come out? 3. Like Lind 4. No longer different standards for oral and written testimony. Now same clearly erroneous standard for all fact finding. 52(a) now codifies this point 5. SC holding: where there are two permissible views of the evidence, factfinders choice cant be clearly erroneous 6. SC says under clearly erroneous standard, its not enough that CA disagrees with fact-finders conclusion

d. H. Harmless Error = not appealable Rule 61 1. Fed. Courts forbidden to reverse errors that dont affect substantial rights of parties and dont change likely result 2. involves getting into heads of jury this is hard. We just cant ask them. 3. test= how likely is it for error to change results. A high level of certainty is not necessary just likely 4. this standard is inconsistent and difficult to apply in practice 5. pressures on Appeals Court to find error to be harmless (use of resources)

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X.

Alternative Dispute Resolution (ADR) A. Mediation 1. parties are decision makers 2. often a prerequisite for going to court 3. generally parties have long term dealings with each other 4. mediator = just facilitator 5. Grillo a. mediation = bad for women because it assumes parties use good faith but they dont so advantages to those who are more manipulative b. mediation is coercive and oppressed women c. coercive power of mediator b/c in some jurisdictions they can make recommendations to court based on info acquired in mediation d. difficult to disprove habitual liars e. shift in negotiation stances f. focus on future so cant bring up past = bad g. counter to her argument = shes not arguing against mediation but rather mediation gone wrong B. Arbitration 1. precludes going to court. Replaces court system. 2. Arbitrator = judge and expert. Can come up with a final decision. 3. Parties self-define substance and procedure law 4. You agree to pre-dispute 5. May be cheaper, faster, and more private 6. Courts have begun to enforce arbitration agreements and often give them tremendous deference a. mandatory arbitration is appealable but courts still give a great deal of deferene to arbitrators decision b. often these arrangements are accompanied by fee-shifting provisions providing disincentive to go to trial 7. Decision not reviewable in court except in narrow circumstances 8. Lose precedential value 9. Can have knowledgeable arbitrators (get rid of problems of jury) 10. arbitration and award is affirmative defense under 8(c) 11. Disadvantages: a. parties give up right to jury trial (can be argued it isnt as democratic) b. no due process b/c theres no state action involved c. private law doesnt develop precedent and decisions dont become publicly known d. arbitration awards usually not appealable 1. possible solution = rent-a-judge 12. Ferguson v. Writers Guild (Bev Hills Cop II) a. Facts: 1. original determination on credits P wanted exclusive credit 2. arbitration terms came, not from arbitration agreement, but from a unilateral Writers Guild document referred to in agreement 3. Ferguson wanted court to override arbitration ruling and give him sole credit b. if parties agree to arbitration, you cant appeal later c. the court can review procedural problems. (contract) so court has authority to review whether they enforced contract as they said. But Ferguson didnt preserve record and didnt exhaust remedies so he doesnt get this 1. procedure would need to be material and prejudicial departure from agreed upon procedure d. Court wont rule on substantive findings of arbitrators therefore it defers to arbitration determination

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ADR

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American Procedure in Comparison