Civil Procedure Professor Edward Cooper

Law and Fact at Trial: Roles of Jury, Judge, and Parties

FACTUAL UNCERTAINTY
I Burden of proof = Burden of production + Burden of persuasion A Burden of Production: Burden of going forward, initially producing threshold amount of evidence. 1 B If burden of production satisfied by one party, burden of persuasion will shift to the other Burden usually on P to prove elements of the case and usually on D to prove justification/excuse. Doesnt require persuasion to point of absolute certainty (often preponderance of evidence) Party with burden of persuasion will lose unless persuades lead you to believe that facts are more true than false (or more false than true). II Preponderance of the evidence A B C Definition: More probably true than false, but it is not based upon strict probability. It is variable test. It is context-dependent depends on facts, their believability, the legal context, rules, etc. Absolute uncertainty is unattainable and often is far beyond even approximate reach. Thus, you dont need to persuade to absolute certainty. D E Responsibility for adducing satisfactory evidence on the issues in controversy is imposed on parties. Depends on quality > quantity of witnesses. Witness questions 1 2 3 4 5 B Capacity to observe? Opportunity to observe? Ex. Cloudy/dark night. Credibility? Prejudicial relationship w P or D? Motive to falsely testify? Witness knowledge expert or common person? How long ago did the incident occur? Memory is fallible and suggestible. Fitting the witness testimony to the facts we know/believe. Fitting it w other witnesses. Did the other witnesses seem more credible/interested/etc.? Burden of Persuasion: Party that must ultimately persuade the factfinder of the truth of the issue in a civil case. 1 2 3

III Considerations in evaluating the witness: A

Witness Fit 1 2

Do I understand what the witness is trying to tell me? Questioning for statistics 1 2 3 4 5 Who performed the study? What was its purpose? Credible? Samples predict for certain populations, but not broadly applicable. What was the actual population? What does the study mean? Are probabilities independent of each other? What do the figures actually mean? How does the study compare to real life situations? Tire explosion (P has no recollection and tire was thrown away.) P offers a study - 55% of explosions due to defect and 45% due to improper install. i Ex. operators in the study v. the operator that installed Ps tire. Things to consider: Ps experience, the type of car/wheels, storage/control of the tire, equipment being used (age and if they followed

IV Validity of Statistics and Studies: These arent facts. Always question them. A

Civil Procedure Professor Edward Cooper recommended precautions), time of day or week (could find mistakes predominantly happen at a certain time). 6 Does it allow the juror to make the necessary inference? Brotherhood of Teamsters v U.S. (431 US 424): Used study to argue that there is a pattern/practice of discrimination. i Statistics are not irrefutable but come in infinite variety and like any other kind of evidence may be rebutted and thus their usefulness depends on all surrounding facts and circumstances. ii There could be other factors that cause odd distribution of employment. Ex. Minorities might not be applying, different qualifications, seniority, and time of hiring, location. iii SC ultimately ruled that may infer discrimination but dont have to. V How confident do we have to be to hold D liable ? A B If we dont know if D was there, had any connection: Reluctant to hold liable D was there, were trying to determine if he did something wrong: Less un comfortable with holding D liable. 1 Bus Accident: Different from Summers v. Tice (shotgun shot cant prove which one) and DES (no way to prove which company had made the product) cases, because we knew each party had done something wrong. Here, one party is innocent, so holding both liable would be fundamentally wrong. i Each manufacture shall be responsible for that manufacturers share of the market, unless it can prove that their product was not liable. C If we know D was negligent, and are merely trying to determine if act caused the injury, then burden shifts to D to prove he didnt do it. When you know who caused the wrongful act, how much more of a need is there to prove causation (of injury)? Let jury decide. D The Widow Reid, Reid v. San Pedro (39 Utah 617). Cow killed by train. Unsure if cow wandered in through hole or gate. 1 owner, having the burden of proof, cannot recover when the evidence is at least as strong that defendant was not liable 2 Facts are not readily adduced, since there are no witnesses. Can only guess from incomplete data. i What do we need to know to hold the RR liable? ii P has the burden of production and persuasion that the RR caused the injury. 3 4 If she was injured by failure to maintain fence, RR is held liable due to strict liability statute. Show: how close was the cow to the hole, size of hole/gate, etc.

VI Why do we insist on all or nothing?: A Why not split the difference? Shadowy line between 50% and 51% 1 Encourages parties to settle, which is better because you eliminate uncertainty at trial and parties will work things out in terms agreeable to them. Plus, settlement generally is btw the most and the least P wanted. More than 50% of cases settle. If all the cases that settled went to trial, there would be a much larger court system required. A settlement represents a best guess estimate of the value of the case. 2 3 4 5 If they dont settle, they will try harder at trial. Forces triers of fact to think harder about the matter. Uncertainty can be reflected in the reward, because P wont get as much. Splitting the difference could result in greater overall incorrectness.

Civil Procedure Professor Edward Cooper i Ex. 80% likelihood of winning. In 4/5 cases you will win. a Splitting Difference: 20% wrong in damages in 4 cases and 80% wrong in 1 case = total error of 160% b 6 B All/Nothing: 0% wrong in damages 4 cases and 100% wrong in 1 case = total error of 100% Discourages spurious lawsuits, because people that know they cant fulfill the standard would be deterred. Some claims in all or nothing might not be brought, bc they cant fulfill that standard. This one will allow all claims to be brought, bc some relief though small is more possible.

Pros of splitting the difference 1

JURYS FACT INPUT

I What is Jury Misconduct? A Test: Q is not whether the conduct was improper but is the error so serious that verdict must be overturned (Harmless Error Doctrine FRCP61: Court must disregard all errors and defects that do not affect any party's substantial rights) 1 Deciding by majority for D. 2 Lunch and moderate alcohol w bailiff before decision. 3 P talking in elevator w three jurors about relatives in the same area as a juror. II Restrictions on Jurors Testimony, Affidavits, and Evidence about Misconduct A No restrictions on outside testimony or voir dire testimony 1 Outsider testimony allowed: If an outsider overhears or sees jury misconduct, he can testify since hes not a juror. 2 Juror can testify to misconduct during voir dire, because that wasnt during deliberation and thus doesnt invade the process. B Mansfield Rule Vaise v. Delaval (England 1785): A juror's affidavit or testimony as to juror misconduct during deliberations may not be used to impeach the verdict. 1 Support: Sopp v. Smith (377 P.2d 649) (1963) Peters reasons for strict rule of exclusion: Need for the stability of verdicts Need to protect jurors from fraud and harassment from disappointed litigants The desire to prevent prolonged litigation The need to prevent verdicts from being set aside because of the subsequent doubts or change of attitude by a juror The concept of the sanctity of the jury room (Jury Nullification: Sometimes we want juries to disregard the law in the interest of justice.) 2 Criticism: Allows many tainted verdicts to remain undisturbed. 3 Today: To ameliorate effects, later tests (Iowa/606b) show progression, that jurors can introduce info but with restrictions. C Iowa Rule: Put forth by Peters in Sopp v. Smith (377 P.2d 649) (1963), accepted by California in People v. Hutchinson (71 Cal.2d 342) (1969) juror affidavits may be used in appropriate circumstances 1 Rule based upon the distinction between

Civil Procedure Professor Edward Cooper i Extrinsic or overt acts which may be corroborated or disproved, such as access to improper matter or an illegal method of reaching a verdict ii Intrinsic matters which inhere in the verdict itself and hence are known only to the individual juror, such as misunderstanding or prejudice. disproved they should be excluded. Overt acts: described as those open to sight, hearing, and other senses and thus subject to corroboration. Juror cant testify to things in a persons mind, because it cannot be corroborated. But they could testify for a third party effect, since it can be corroborated. 2 Wigmores response to Mansfield Rationale (above): The evidence can be the best, but its being excluded. Fear that jurors will unduly tamper is exaggerated, because early courts werent afraid of this. Doesnt mean jury irregularity would warrant a new trial, only that evidence would be considered to determine if a new trial is necessary. Fear that Iowa rule would cause a juror to upset affidavit bc of doubts is unfounded, bc jurors aff idavit is admissible only when it contains overt acts. D Rule 606(b) of the Federal Rules of Evidence: applies only to federal courts (but then again FRCP only does as well) 1 Inquiry into validity of verdict or indictment. Upon an inquiry into the validity of a verdict a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or concerning the juror's mental processes in connection therewith. But a juror may testify about: i Whether extraneous prejudicial information was improperly brought to the jury's attention (More than 1 Juror) ii Whether any outside influence was improperly brought to bear upon any juror iii Whether there was a mistake in entering the verdict onto the verdict form. 2 A juror's affidavit or evidence of any statement by the juror may not be received on a matter about which the juror would be precluded from testifying. 3 Extraneous prejudicial info v. Iowas overt act: Rule 606(b) attempts to avoid the problem of defining what is an act and recognizes that a verdict is tainted when information not presented during the trial is given to jurors during deliberations and is considered by them in reaching their verdict. i Even if juror testifies to one of the exceptions above, he may not testify to how it influenced his decision, only how the outside influence or info would affect a reasonable juror. Prejudice is inferred. Because matters which inhere in the verdict, including the thought processes and motives of the juror, are not readily capable of being either corroborated or

Civil Procedure Professor Edward Cooper ii Examples: Jurors visiting an accident site, looking stuff up you dont want a juror to have a more authoritative position, bribery and coercion from the outside, a visitor comes and discusses case, a jurors specialized knowledge. 4 Internal info: no testimony allowed that relates to any matter or statement made during the deliberations, to the effect of anything on any jurors mind or emotions, or concerning the jurors mental processes. i Criticism: no allowance for juror-to-juror impropriety such as intimidation or bribery, bc its internal. Case where jurors partied. Court held it was internal info that could not be used against the jury, jurors falling asleep, unless they are drunk into a stupor, this testimony is not allowed. ii Rationale: To deter reversals from jurors coming back and disagreeing w their prior decision. E How to fix the jurys need for additional information to make a decision? 1 Allow jury to ask questions. Get the questions in writing, allows lawyers to review the questions/reject them. However, if the juror thinks a lawyer is rejecting a certain question, it might open up a new can of worms. 2 Tell them not to do the outside research. Jury instructions tell jurors not to talk to other jurors, watch TV, and not to use personal devices to obtain information. III Types of Jury Misconduct A General v Specific Knowledge: We want jurors to use general knowledge and experience, not specific personal experience. 1 Rationale: Jurors knowledge could be narrow, limited, or even completely wrong. Jurors may not be qualified as expert and wouldve been rejected by the court as experts. Counsel doesnt have a chance to refute/verify, cross -examine, or provide another expert. Court may decide that the jurors statements are irrelevant or inapplicable to the motion. 2 Texas Employers Insurance Association v. Price (336 S.W.2d 304) i Action of a juror in relating his personal experiences to the jury concerning practice of employers in hiring workmen with back injuries, for the purpose of persuading the jury that plaintiff was totally incapacitated, was misconduct ii In view of fact it was material and probably resulted in injury to insurer, such conduct constituted reversible error iii Reconcilable with Head v. Hargrave (105 US 45)? Great weight should be given to the opinions of professional men with respect to the value of professional services but the opinions are not to be blindly received and are to be intelligently examined by the jury in the light of their own general knowledge. Perhaps this means it is ok to apply the testimony to your own opinion/knowledge, but you cant use your own knowledge to influence the jurys knowledge/opinion. (But isnt this the exact definition of deliberation?) iv Kilgore v Greyhound Corp. (30 F.R.D. 385) The issue of jury misconduct is complicated by a doctrine that a jury verdict may not be impeached by evidence that comes from the jurors themselves.

Civil Procedure Professor Edward Cooper Jury misconduct or improper evidence requires court to choose between a possibility of unfairness to a party litigant or a possibility of public injury which will result if jurors are permitted to testify regarding what happened I the jury room B Methods of Reaching the verdict: Jurors must decide the case only in accordance with the judges instructions. 1 Jury is not allowed to: Flip a coin, enter a compromise verdict, enter a quotient verdict, dynamite charge i Rationale: These methods ignore the law and the courts instructions. These methods might allow for the jury to not think hard enough or try to understand each others views hard enough. ii Mansfield Rule: Not allowed to take affidavits about this, you are screwed iii Iowa Rule: Allowed because evidence can be corroborated by others and is admissible iv 606(b): Unclear since it is not technically extraneous prejudicial information, outside influence, or a mistake 2 Examples i Hukle v. Kimble (172 Kan 630 ) (Quotient Verdicts not allowed) (606b not binding) Where jury members all agreed that quotient would be the verdict and it was, new trial would be ordered Affidavits from jurors were allowed because misconduct was about the process of reaching the verdict. ii Grace Lines, Inc. v. Motley (439 F.2d 1028) (Dynamite Charge ok?) Explanation made by a juror during polling that during deliberations she had taken a contrary view but had won no one over to her position and that, in interests of achieving a verdict, she had made vote of jurors unanimous for defendant was not evidence that motivation of juror was so unlawful or improper as to require court to nullify her vote and therefore entire verdict, where there was nothing to indicate that she was surrendering a conscientious conviction and where there was no hint of coercion of improper conduct on her part or on part of any other member of jury or anyone else connected with case. iii McDonough Power Equipment, Inc. v Greenwood (464 U.S. 548) (Honest, but mistaken voir dire): To invalidate result of three-week trial because of juror's mistaken though honest response to question is to insist on something closer to perfection than our judicial system can be expected to give. To obtain new trial because juror has given mistaken response to question on voir dire, party must demonstrate That juror failed to answer honestly a material question on voir dire Show that correct response would have provided valid basis for challenge for cause, While motives for concealing information may vary, only those reasons that affect juror's impartiality can truly be said to affect fairness of the trial. C Not Misconduct: Jury Notes When is there a right to trial by jury? IV The Province of Judge and Jury A

Civil Procedure Professor Edward Cooper 1 7th Amendment: In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law. i Right of trial by jury shall be preserved: preserves the core heart. Whether the individual would have gotten a trial by jury turns on the practice of 1791. This is to protect judges against making rules that would expand their position. ii In Suits at common law: refers to law vs. equity. Legal claims get a jury; equitable claims do not automatically get a jury. The US merged law and equity at the federal level in 1938, expanding right to jury trial. B Modern day distinction between question of law and question of fact 1 Law/Fact Distinction i Questions of Law: For the judge. Binding in future cases. Establishes uniformity across cases. If a jury decides, there is no precedential value. If a judge decides, it has precedential value through Stare Decisis. ii Questions of Fact: For the jury. Main functions: determine the facts, evaluate the facts in terms of legal consequences as formulated by trial judge in jury instructions, and present result of deliberations in form of a verdict Heartland of domain: determining, from competing/conflicting evidence, the facts germane to a given dispute, deciding how relevant law should apply to those facts We presume juries listen, understand, and follow the instructions. We do not ask and do not let them tell us if they understood the instruction. iii Ex. Tort for Negligent Driving Jury decides factual questions (i.e. whether driver slowed down). Judge decides whether D had a duty to slow down (question of law). Judge decides standard of conduct is that of a reasonable person. Application of the standard to the facts is for the jury. However, if Judge thinks evidence is so clear, issue withdrawn from jury and judge directs the finding. iv Ex. Contracts: Questions of Law or Fact Jury decides whether the contract exists. Judge decides whether the contract is ambiguous. If the contract is unambiguous, the judge applies the language as a question of law. If the contract is ambiguous, question of fact for the jury. Jury decides the partys intentions. If an oral contract, Jury decides the terms of the oral K. a Rationale: Perhaps jury has a community sense of what ordinary people think. Most people have an instinctive sense that they should get certain agreements in writing, and if not in writing what does that say about the nature of the contract? b Judge determines the legal effect of the jurys concluded intention. 2 When is it a judge/jury question? Often depends on whether the system has enough experience to provide a standard or if the issue is sensitive and therefore requires a popular or communal judgment.

Civil Procedure Professor Edward Cooper i PATENT CONSTRUCTION Markman v Westview Instruments Inc. (517 U.S. 360) (1996): Construction of patent, including terms of art within claim, is exclusively within province of court in view of existing precedent, suitability of interpretation issues for determination by judge, and importance of uniformity in treatment of given patent. Patent construction is special occupation, requiring special training and practice; judge, from training and discipline, is more likely to give proper interpretation to such instruments than jury, and judge is, therefore, more likely to be right, in performing such duty, than jury can be expected to be. Only those incidents which are regarded as fundamental, as inherent in and of essence of system of trial by jury, are placed beyond reach of legislature Notes: Decided in the Federal Circuit (national jurisdiction) = binding on District c ourts, Markman Hearings ii CONTRACT INTERPRETATION Davis v John Hancock (316 N.Y.S.2D 722) (NY 1970): Whether insured's death from heroin addiction was an accidental death and whether insured, by her addiction, was suffering from bodily or mental infirmity or disease were questions for jury in action to recover under double indemnity clause of life policy. Rule: Question of fact for the jury, jury is to determine the language of an ambiguous contract and decipher the intention of the contract. They were given all the evidence to assess the persuasiveness of the witnesses and can understand what the contract would mean to ordinary person. (Contracts are also construed against Insurance) Rationale: These kinds of Ks arent usually negotiated since people arent sophisticated contract readers. Jury would read it in a way that consumers would. Tells us what ordinary people would think the contract meant. Criticism: Interpretation of form contracts as jury question of fact = inconsistent outcomes. Jurys decision in one case is not binding on the next. Future parties cannot bring up the case as precedent. Not binding precedent for res judicata. However, in rare cases a party that has tried the exact same issue with another party cannot try the issue again in exactly the same way with a current party. Most times a court will say it is a different issue. Perhaps better to treat it as a question of law to have uniformity, so that other courts will be inclined to make the same decision as this court. Note: Davis and Markman require interpretations of words on paper, but different outcomes Interpretation of agreement is always question of fact. Interpretation of oral agreement for cutting of timber on defendant's land as to whether it was a sales or service contract was for jury, in suit for breach of agreement wherein statute of frauds was relied on as a defense iv NO EVIDENCE TO PROVE WILFUL/WANTON Alderman v. B & O R.R. (113 F. SUPP 881) (1953) iii INTERPRETATION OF ORAL AGREEMENT Dobson v. Masonite (359 F.2d 921) (1966)

Civil Procedure Professor Edward Cooper Carrier may contract against liability negligently caused injury but for public policy reasons it cannot contract against liability for willful or wanton acts causing injury Judge is of opinion that the complaint fails to state sufficient fact s to substantiate a charge of willfulness. It is clear that plaintiff has stated a charge of negligence; but that is not the test in this case. Rule: If no reasonable jury could find liability, evidence is so clear that the judge will decide. When evidence is not clear, jury would make factual determinations as well as decide whether the conduct met the standards required by law. Juries are better at deciding prudence. Criticism: Judge holds willful and wanton conduct had nothing to do with bad inspection system. Is it fair for a judge to decide what willful and wanton conducts means? 3 Pros/Cons of Jury: i Cons: Juries often ignore judge instructions and fabricate own rules, applying them to the facts, jury often applies tort concepts to criminal law, inefficiency takes more time than cases tried by judges, unskilled citizens applying difficult legal concepts, costly process drains limited resources on judicial system, lack of uniformity (precedent) ii Pros: Jury imports community values into the process of adjudication, law often lags behind social reality, jury is best safeguard against the corruption of judges (independence) , Constitution and History, perceptions of justice, Jury can provide a broad-based sense of how reasonable people really do behave., can provide value judgment of how we think people should behave, what standard of behavior people should live up to, Allows flexibility in a potentially rigid application of rules of law., Construes contracts and situations how we think the ordinary person understands it, and how we want the contract/situation to mean. 4 Ways Judges can Control the Jury: i Jury instructions as to the law they will apply ii Form of verdict (special verdict, general verdict with interrogatories etc.) iii Judicial control over the matters they will consider iv Taking from the jury the power to decide when evidence is inadequate (12(b)(6), 12(c), Summary Judgment, JMOL)

JUDGES LAW INPUT

I Judges role A B C May rule in all pretrial motions and preliminary issues (admissibility of evidence, privilege, jurisdiction, etc.) Wide latitude in structuring the trial (ordering discovery, consolidating trials, separating trials, etc.) Control over matters the jury may consider and the taking from the jury power to decide when evidence is inadequate. D JURY INSTRUCTIONS (FRCP 51): 1 Importance of good jury instructions to limit the role of the jury: i Ensure that jury performs proper function by instructing jury as to law it should apply (more precise = less opportunity for jury to invoke own standard of conduct) and form that the verdict takes (more specific = less jury latitude)

Civil Procedure Professor Edward Cooper ii Jury has most latitude with the general verdict because it can mask the inconsistencies in the views of the jurors and their findings on issues, enabling them to ignore the Judges instructions by conforming the facts to notions of popular justice. E Judge will act as both fact finder and law applier when: 1 No Constitutional or statutory right to jury trial 2 Right to jury trial is waived by the parties failure to demand a jury as requi red by FRCP 38/39 3 Parties agree to non-jury trial. II Jury Instructions Rule 51: Instructions to the Jury; Objections; Preserving a Claim of Error 1 Requests for Jury Instructions 1

Before or at the Close of the Evidence. At the close of the evidence or at any earlier reasonable time

that the court orders, a party may file and furnish to every other party written requests for the jury instructions it wants the court to give. 2 1

After the Close of the Evidence. After the close of the evidence, a party may:
file requests for instructions on issues that could not reasonably have been anticipated by an earlier with the court's permission, file untimely requests for instructions on any issue. must inform the parties of its proposed instructions and proposed action on the requests before *must give the parties an opportunity to object on the record and out of the jury's hearing before the may instruct the jury at any time before the jury is discharged. time that the court set for requests; and 2

Instructions. The court:

1 instructing the jury and before final jury arguments; 2 instructions and arguments are delivered; and 3

Objections.
1

How to Make. A party who objects to an instruction or the failure to give an instruction must do so on When to Make. An objection is timely if:
1 2 a party objects at the opportunity provided under Rule 51(b)(2); or a party was not informed of an instruction or action on a request before that opportunity to object,

the record, stating distinctly the matter objected to and the grounds for the objection. 2

and the party objects promptly after learning that the instruction or request will be, or has been, given or refused. 4

Assigning Error; Plain Error.

1 1 2

Assigning Error. A party may assign as error:

an error in an instruction actually given, if that party [has to be same party] properly objected; or a failure to give an instruction, if that party properly requested it and unless the court rejected the

request in a definitive ruling on the record also properly objected. 2

Plain Error. A court may consider a plain error in the instructions that has not been preserved as

required by Rule 51(d)(1) if the error affects substantial rights. [Rarely used, but Cooper could love it].

Civil Procedure Professor Edward Cooper A Hypotheticals applying Rule 51: 1 The court decided to provide jury instructions on punitive damages for municipalities. Other districts are split on the issue. Jury awards compensatory & punitive damages. D appeals. Might be better to just cut off punitive damages, rather than retrial. If the error can affect damages or results, then perhaps retrial. It could also influence other cases and set precedent, so the court might retrial to get a better result. 2 P objects a jury instruction after its been given, arguing last clear chance has been replaced by comparative negligence. A party is supposed to object before the instruction is given, we give an exception that if it is the first time the party hears the jury instruction they are to object promptly and it will be considered timely Rule 51(a)(2). B Why do we give jury instructions? 1 Uniformity: We want similar disputes to be treated alike for predictability and reliability. We want jurors to promote this. 2 Direction for the Jury: i Spares the jury the awful responsibility of learning the law on their own. [They didnt p ay $44,000+ for legal education] ii Otherwise, difficult for jurors to think about the law when they dont know what the law actually is. iii If unguided, jury may go off in a strange direction. Also, some juries are going to be inept and might need instruction [Based on the fact that well educated people are good at coming up with reasons not to serve (bastards)]. 3 Jury Distrust: dont trust the jury to know anything except what theyre told in the instructions. [Jury = Blank Slant] i Judges must recognize need for instructions that are as short as possible, comprehensible by ordinary citizens, and set forth in logical fashion to let jury know just what it is that it is deciding. [i.e. the opposite of their judicial opinions] 4 Trust in Congress: Congress delegates authority to regulatory agencies; these Rules might be better than the opinion of 6 citizens. We want juries deciding things under law. C Counsels duties to preserve an error for appeal 1 Party must submit jury instructions, if they want a particular matter instructed on: i Rule 51(a) provides instructions for timely requests. ii No request required if party objects to something erroneous in the instruction or the court tells the jury something different from what he told the parties he would tell the jury, as long as it is timely under 51(c)(2)(B). iii Difficulty in drafting instructions for attorneys: Want to have a favorable instruction, but also must be careful that the instructions arent too slanted they are refused, antagonized judges, harm attorneys rep, and are short enough for the jury to understand. iv Even if the judge requires an instruction before the trial starts or early, Rule 51(a)(2)(A) allows a lawyer to file requests for instructions on issues that could not reasonably have been anticipated by an earl ier time that the court set for requests.

Civil Procedure Professor Edward Cooper 2 Must object to anything the court says or doesnt say that you think is wrong before giving instructions and final arguments: i Rule 51(c) provides instructions for timely objections ii Rule 51(d)(1)(A) implies that the specific party must object to preserve appeal for itself. Ex. D1 objects and D2 doesnt, D2 may not use D1s objection. iii Alexander v Kramer Bros. Freight Lines, Inc. (273 F.2d 373) (1959): a Rule 51 requiring a party to object or take exception to charge was intended to permit trial judge to evaluate the objection and correct his charge if further thought persuades him of its error. b That defendants objection in colloquy that the burden of proving contributory negligence was on defendant, did not satisfy requirement that party object to alleged errors in charge, and did not preserve for appeal any error in charging that defendant had burden of proof in this respect. c Trial court's alleged error in charging that burden of proving contributory negligence in tort action was on defendant was not one which review in court would correct in absence of objection or exception. d

Troupe (cited in Alexander): two grounds for considering unsaved objections 1) errors are obvious
or 2) they otherwise seriously affect the fairness, integrity, or public reputation of judicial proceedings

iv Romano v U-Haul International (233 F.3d 655) (2000): a The requirement that the grounds for objecting to a jury instruction must be distinctly stated is treated seriously by this Court. b The Court of Appeals reviews jury instructions de novo to ascertain whether the challenged instruction has a tendency to confuse or mislead the jury with respect to the applicable principles of law. c Purpose of Rule 51: Objection is to be made on errors, so that the TJ can evaluate the objection and correct his charge if further thought persuades him of its error. EC: Judges need help because they dont know all the law. Also, both sides will be trying to trick the judge, so put burden on lawyers to object to each other. v Nonetheless, sometimes the court will allow a reversal on these facts on the ground it was a plain error. a

Troupe (cited in Alexander): two grounds for considering unsaved objections 1) errors are obvious
or 2) they otherwise seriously affect the fairness, integrity, or public reputation of judicial proceedings

Instructing the Jury 1 Should the instructions come before/after counsels final arguments? i Argument for before: Better for the jurors to know what law they must apply. ii Argument for after: Instructions in the beginning risks that trial evidence may raise new issues or reshape issues the parties thought they had understood. iii Rule 51: amended in 1987 to allow judge to instruct jury before or after closing arguments. 2 Judges responsibility of giving a proper instruction, even if the parties provide bad instructions :

Civil Procedure Professor Edward Cooper i Kennedy v Southern California Edison Co. (219 F.3d 988) (2000) a When a court is presented with an applicable instruction that raises an important issue of law or directs the court's attention to a point upon which an instruction to the jury would be important, it is not relieved from the responsibility of giving a proper instruction simply because the party making the request has proposed an instruction that does not completely comply with the relevant law b A district court, however, may have an obligation to correctly instruct the jury even after being presented with an arguably improper instruction that nonetheless directs its attention to an important issue. c When reviewing instructions for harmless error the prevailing party is not entitled to have disputed factual issues resolved in his favor because the jury's verdict may have resulted from a misapprehension of the law rather than from factual determinations in favor of the pr evailing party. d Rationale: Judge owes it to the parties, jury, and future litigants and they benefit from it, maintains the integrity of the judiciary branch, netter for consistency in judgment. ii Turner Construction Co. v. Houlihan (240 F.2d 435) (1957) : If no requests for instructions are filed, court must nevertheless charge the jury on broad fundamental rules of law applicable to the principal issues of fact in the case iii Fisher v. Ford Motor Co. (224 F.3d 576) (2000): Accuracy = de novo, Denial = abuse of discretion iv The request doesnt need to be perfect. a If you propose an instruction on an issue that is part of the case, and on which jury should be instructed, that is enough to trigger the courts obligation to instruct jury even if your request is crappy ct has to figure out on its own to give them correct instructions. b Jury request may be denied if it could be misleading. Failure to notify attorneys and give them opportunity to be heard before ruling on jury request may lead to reversal of the judgment 3 Giving Jury Written Instructions in Jury Room/Juror Note Taking : Increasingly common to give juries these. i Rationale: Just listening to instructions seems like an uncertain process, enhanced jury performance ii Criticism: Juries pay too much attention to what instructions mean as opposed to attention to facts; may shift jury dynamics in that juries who think theyre more adept in reading instructions will dominate instruction. iii Securities and Exchange Commission v. Koenig (557 F.3d 736) (2009) a b

Permitting jurors to ask questions of witnesses was not reversible error

Whether written jury instructions/exhibits can be sent to the jury room is up to the discretion of the judge

4 Instruction often given when jury is unable to reach a unanimous verdict and sometimes in a principle charge: III Errors A Introduction 1 Three error categories:

Civil Procedure Professor Edward Cooper i Harmless error: For example, A submits faulty instructions that actually increase his own burden, but A wins. B doesnt get a reversal because it is harmless error. ii Rule 51 error: In giving jury instructions, always follow rule 51 a Comply: by providing instructions and objecting to the instructions, but the court finds it was harmless anyways. b Didnt Comply: even though the instructions were wrong and not harmless. So, you wouldve received a reversal if you requested or objected. The case goes uncorrected and the verdict stands. iii Plain error: so fundamentally wrong that even if you dont follow rule 51, the ct will reverse. 2 Why should we have a rule that makes the parties responsible for getting the judges instructions to the jury right? i Encourage parties to pay attention: Judges can make mistakes, too. ii Adversary System: We want to build into system a partys responsibility for researching law. iii Suitability: Parties have more oppo rtunity to research law relevant to facts. Courts dont research/prepare. iv Expensive remedy: It is expensive to grant a new trial for mistakes, especially when many are waiting a trial. v Inability for jury to reconsider after substantial time passes. vi Incentive to counteract other problems: a Sandbagging: When you see a mistake but dont object it in the hope that you benefit from it. Jurors dont always understand instructions anyways (if instruction is complicated, likely that jurors will ignore/not understand). b Insurance: Desire for the judge to get it wrong if they are losing, to argue for an appeal. 3 Invited error doctrine: You asked for it, you are stuck with it. If injured party asks the court to give the wrong instructions, court wont do anything about it. B Harmless error 1 Rule 61: Harmless Error: Unless justice requires otherwise, no error in admitting or excluding evidence or any other error by the court or a party is ground for granting a new trial, for setting aside a verdict, or for vacating, modifying, or otherwise disturbing a judgment or order. At every stage of the proceeding, the court must disregard all errors and defects that do not affect any party's substantial rights . i Example: Court puts burden on Defendant, even though it belongs to Plaintiff. Defendant wins. a b C This is a harmless error because it was harder for D, but he won anyways. The evidence is so close that it wouldnt matter whoever had the burden.

Plain error 1 Rule 51(d)(2) Plain Error: A court may consider a plain error in the instructions that has not been preserved as required by Rule 51 (d)(1) if the error affects substantial rights. i Note: compare to may assign in (d)(1). This was added in 2003, before plain error was not recognized. ii Rule was changed to consider to emphasize its not a right, but something pa rties may argue for.

Civil Procedure Professor Edward Cooper iii Rationale: Judge is responsible for correctly instructing the jury on fundamental laws (to protect parties, make sure decisions right, etc). Lawyers have an incentive to point out clear errors to protect themselves (opponents might later appeal and get new trial), but they also have a disincentive (opponents might not notice, so they will win for good). 2 Four Factor Plain Error Guide in Johnson v. U.S. (520 U.S. 461) (1997) i There must be an error ii The error must be plain (or obvious) (Depends on how clear the law is on the point) iii The error must affect substantial rights (it must be important, affected the outcome) a The facts in different cases can change the importance of a rule of law. i Burden of proof: a

Caballero v City of Concord: Placing the burden of proof on the wrong party ordinarily
requires reversal.

Mockler v Multnomah County: placing burden of proof on the wrong party was harmless
when evidence would support verdict for plaintiff in any event. Jeep: P drove jeep into wilderness when steering wheel started to fail. P didnt want to sleep there, so drove back. P was injured. Jury found for D. Ct reversed, bc jury instructions put burden of persuasion on wrong party. Allocation seemed important, bc design of jeeps steering is different from Ps decision to drive.

Even when mistake is not obvious, importance may be sufficient, especially in a new or obscure area of law. Ex. The instruction was correct was given, but now is incorrect because of a change of law that applies to the case. New law usually applies to cases that are pending at time the law is announced. Ex. Institutional costs, far-reaching implications, many are affected, those affected not present.

iv The error must seriously affect the fairness, integrity, or public reputation of judicial proceedings a

JURYS FACT FINDING

I Rule 48: Number of Jurors; Verdict A jury must initially have at least 6 and no more than 12 members, and each juror must participate in the verdict unless excused under Rule 47(c) (good cause). Unless the parties stipulate otherwise, the verdict must be unanimous and be returned by a jury of at least 6 members. A Parties can decide that the verdict doesnt have to be unanimous or allow a determination by a jury less than 6. II Form of Verdict A Trial Judge has discretion in deciding what type of verdict to use: 1 Depends on judges view of usefulness/intrusiveness of jury. 2 Case cant be overruled on use/non-use. 3 No party has right to a particular form of verdict. B Types of Verdict 1 General Verdict

Civil Procedure Professor Edward Cooper i We find for P and fix damages at $#. Jury finds for either P or D but doesnt disclose the grounds for the decision. ii This is the traditional and most common form of verdict, because of simplicity iii Criticism: No way to tell how jurors decided specific issues, no way of knowing if jury followed or ignored instructions. 2 Special Verdict Rule 49 (a): Special Verdict 1

In General. The court may require a jury to return only a special verdict in the form of a special written
1 2 submitting written questions susceptible of a categorical or other brief answer; submitting written forms of the special findings that might properly be made under the pleadings and using any other method that the court considers appropriate.

finding on each issue of fact. The court may do so by:

evidence; or 3 2

Instructions. The court must give the instructions and explanations necessary to enable the jury to Issues Not Submitted. A party waives the right to a jury trial on any issue of fact raised by the

make its findings on each submitted issue. 3 pleadings or evidence but not submitted to the jury unless, before the jury retires, the party demands its submission to the jury. If the party does not demand submission, the court may make a finding on the issue. If the court makes no finding, it is considered to have made a finding consistent with its judgment on the special verdict. Special Verdict = Jury answers questions on the facts and the judge applies the law to the jurys facts. i Issues of fact: There is a certain indefiniteness of how big the lumps of fact can be. Does not have to be all the facts, but it must include issues the jury has to decide. ii Objections: Party must object to any issues of fact raised by pleadings or evidence but not submitted to the jury. Otherwise, the issues are considered waived. iii Waived Issues: Court may make a finding on waived issues/ considered to have made a consistent finding. What if answers are inconsistent w each other? Since Rule 49(a) is silent, Court may borrow procedure of Rule 49(b). 3 General Verdict with Interrogatories The jury is told to answer questions about the facts of the case and return a general verdict. If the answers are not consistent w the verdict, the answers control. The questions do not have to cover every fact issue, bc the ct can just ask for certain issues. Rule 49(b): General Verdict and Questions

Civil Procedure Professor Edward Cooper 1

In General. The court may submit to the jury forms for a general verdict, together with written

questions on one or more issues of fact that the jury must decide. The court must give the instructions and explanations necessary to enable the jury to render a general verdict and answer the questions in writing, and must direct the jury to do both. 2

Verdict and Answers Consistent. When the general verdict and the answers are consistent, the court Answers Inconsistent with the Verdict. When the answers are consistent with each other but one or
1 approve, for entry under Rule 58, an appropriate judgment according to the answers, notwithstanding direct the jury to further consider its answers and verdict; or order a new trial.

must approve, for entry under Rule 58, an appropriate judgment on the verdict and answers. 3 more is inconsistent with the general verdict, the court may: (disregarding) the general verdict; 2 3 4

Answers Inconsistent with Each Other and the Verdict. When the answers are inconsistent with each

other and one or more is also inconsistent with the general verdict, judgment must not be entered; instead, the court must direct the jury to further consider its answers and verdict, or must order a new trial. 4 Difficulty when answers are inconsistent w each other or the general verdict i There are three possible scenarios that we can get with Rule 49(b) a Scenario One: The general verdict and answers agree. Judge will obviously take the verdict under Rule 49(b)(2). b Scenario Two: Answers consistent with each other, but inconsistent with the verdict. i Under Rule 49(b)(3), the Judge may: a b c c Approve the answer consistent with the interrogatories over the verdict. (See Nollenberger). Send jury back for further deliberations. Order a new trial.

Scenario Three: Answers are inconsistent with each other and the verdict. i Under Rule 49(b)(4), the Judge may a b Order a new trial. Send jury back for further deliberations.

Scenario Four (undiscussed by the Rule): Answers are inconsistent w each other but consistent w the verdict. i Ex. Dual plaintiffs. Answers consistent for P1 and P1s verdict of yes. Answers inconsistent for P2 and P2s verdict of no. But answers as a whole are not consistent w each other. ii Seems like it would most likely be treated like Rule 49(b)(4).

ii WITHDRAWL OF WRITTEN QUESTIONS Diniero v. United States Line Co. (288 F.2d 595) (1961) a A court may withdraw interrogatories under rule authorizing submission of interrogatories to jury, but its ruling is reviewable for abuse of discretion. b It was not abuse of discretion to withdraw all interrogatories and authorize jury to render general verdict, where one interrogatory was ambiguous and attempt to clear up ambiguity increased it.

Civil Procedure Professor Edward Cooper iii ALLEN/ HAMMER / DYNAMITE CHARGE Allen v United States (164 US 492) (1896): a Judge is allowed to charge the jury that it the larger number are for conviction, a dissenting juror should consider whether his doubt is a reasonable one; and that, if a majority is for acquittal, the minority should consider whether they may not reasonably doubt their judgment. b Absolute certainty cannot be expected in a large proportion of cases. Jurors should examine questions with candor, give proper regard and deference to other jurors, and question if their beliefs are reasonable iv VERDICT/INTERROGATORIES CLASH Nollenberger v United Air Lines (216 F. Supp. 734) (1963): a Jury's answers to special interrogatories must be harmonized by court if possible under fair reading of answers. b Court must attempt, by exegesis if necessary, to reconcile jury's findings in regard to special interrogatories before jury's special verdict can be disregarded and case remanded for new trial. c d Jury's findings of fact in answer to special interrogatories control over general verdict. Court lacks power to submit additional interrogatories after jury has returned its verdict answering special interrogatories and its general verdict. (Some courts approve submitting additional interrogatories) v HOW FAR SHOULD THE COURT GO TO RECONCILE VERDICT/INTERROGATORIES a Wright v Wilburn (194 F.R.D. 54)(2000): District court has a duty to reconcile the jury's answers on a special verdict form with any reasonable theory consistent with the evidence, and to attempt to harmonize the answers if possible under a fair reading of those answers. b Popham v City of Kennesaw (820 F.2d 1570) (1987): 7A requires court to interpret special interrogatories, if at all possible, so that there is no inconsistency; in doing so, court must consider all circumstances, especially issues submitted to jury, instructions to jury, and any expressions of jury extrinsic to their answers to interrogatories. vi RESUBMISSION VERDICT INCONSISTENT WITH QUESTIONS Duk v. MGM (320 F.2d 1052) (2003) a Resubmission to jury of initial inconsistent special jury verdict for purpose of clarification was warranted, b Any inconsistency between an initial jury verdict and a second jury verdict following resubmission to the jury is usually considered a proper correction of a mistake in the original verdict. c C Grace Lines, Inc. v. Motley (439 F.2d 1028) (Resubmission not necessary) When should we do General Verdicts/Special Verdicts/General Verdicts with Interrogatories 1 Factors to consider when requesting a type of verdict: i Would it make it more difficult to have jury unanimity? ii Special verdict/general verdict w interrogatories are often reserved for special cases because there is a higher perceived need for jury control or because they want to be clear on how jury decided. (Easier on all parties for appeals) iii Will it mess up factual uncertainty to give up specific questions? iv Can you ID every fact the jury is supposed to decide?

Civil Procedure Professor Edward Cooper 2 Most state courts do not use R49 verdicts. There are some that use it more often than others; WI loves Special Verdicts 3 Special Verdict: Requires you have special findings on EACH AND EVERY FACT; makes easier for judges to strictly apply law, juries fact. Dont want to use if you cannot ID every fact that the jury is supposed to decide 4 General Verdict with Interrogatories: First, need to give jury general instructions because youre giving general verdicts and thats a lot of work . Does not have to cover all the questions of fact t hat jury must decide. May be inconsistent concern is that its more likely that interrogatories with general verdict give answers that are inconsistent with general verdict. D Pros and Cons of Special Verdicts and General Verdicts w Questions 1 Pros i Instructions: Gives jury a framework and allows for specific instructions on each issue. ii Guidance: Leads jury on path of decision. Adjusts way jury responds to uncertainty, preponderance of the evidence. iii Illumination/Transparency: Gives insight on jury deliberations, allows more judge control, frame for Appeal iv Avoidance: Makes jury deliberations more scientific and rational. Requires jury to decide on each question instead of avoiding issues. Could help to eliminate bias or prejudice on the part of the jury, improve their fact-finding function, enable us to feel comfortable that the jury did a good job, avoid jury nullification a Counter: a special verdict could affect the burden of persuasion. If you ask are they negligent, then they say yes, but if you break down the fact inquiry further, they might not reach the same decision. Changing mode of deliberation. v Protecting the law: Juries are supposed to decide on factual questions, so this confines the jury to their fact finding function, make it more difficult for them to fiddle w the law. vi Unanimity: Juror may not be willing to follow majority if he must answer specific questions that he doesnt believe in. This forces each juror discuss if they agree or disagree, enhancing unanimity. vii Collateral Estoppel/Issue Preclusion: a Aids res judicata and collateral estoppel. Once an issue has been settled, the issue may not be relitigated in a separate lawsuit between the same parties Jury verdicts are not precedent either. b Allows judge to know what jury based decision on to determine whether there was error and if it was harmless or not. Also allows for retrial only on incorrectly decided issues. viii Rule 606b problem solver: Rule 49 verdicts work in conjunction w Federal Evidence Rule 606(b). Since jurors cant discuss deliberations, Rule 49 verdicts give insight in the deliberation process that the court would otherwise not have. 2 Cons i Protection against the law: Jury shouldnt be restricted to only applying the law or requiring them to decide it according to judges specifications. They are the conscience of the community; they should be able to look at more than logic and law.

Civil Procedure Professor Edward Cooper ii Instructions: a Difficult to create instructions. The instruction can instead confuse them and divert their attention to the wrong things. See Diniero v United States Lines Co. b Difficult to form appropriate questions that will cover significant elements of the case yet avoid ambiguities that can lead to reversal on appeal. iii Illumination: We learn things about the jury process that wed rather not know and could cause the case to be reversed. iv Unanimity: Atomizing the jurys deliberation makes a unanimous result mor e difficult to reach. a See Grace Lines, Inc. v Motley: Questions what we want when we expect unanimity. Decides that juror can concur on their own motive, without Courts coercion. Doesnt have to actually be convinced. v Weakens jury power: Weakens constitutional power of juries, vests judges with more power to decide cases according to their judgments, instead of letting jury. General verdict allows jury to render verdict without requiring subsidiary findings. vi The jury can get bogged down on the issues, rather than thinking about the big picture or other more important details. E Withdrawing SV and GVI 1 Danger of withdrawing a SV and GVI question from the jury i Could influence the jury to think that the issue was unimportant to the decision. Or if you fix a question, youre focusing attention on that particular issue. ii Could be prejudicial if the question is central to the claim. 2 Judge has discretion to withdraw questions. i Diniero v United States Lines Co. a A court may withdraw interrogatories under rule authorizing submission of interrogatories to jury, but its ruling is reviewable for abuse of discretion. b It was not abuse of discretion to withdraw all interrogatories and authorize jury to render general verdict, where one interrogatory was ambiguous and attempt to clear up ambiguity increased it. c Abuse: judge withdrew proper questions at the objection of a party and shortly after jury returned verdict for a party. 3 Can you submit a new q after deliberation has begun? i Yes? Diniero allows gives leeway for clearing up ambiguous questions leads to new clearer question ii No? Diniero stated if the jury came back with a verdict right away, it would be improper. iii Rule doesnt explicitly say yes/no, but does enumerate judges options.

JUDGES FACT FINDING

I Judges must find facts specially and separately state his conclusions of law. A Rule 52(a)(1): In General. In an action tried on the facts, the court must find the facts specially and state its conclusions of law separately. The findings and conclusions may be stated on the record after the close of the evidence or may appear in an opinion or a memorandum of decision filed by the court. Judgment must be entered under Rule 58.

Civil Procedure Professor Edward Cooper B Roberts v Ross (344 F.2d 747) (3rd 1965) 1 Rule requiring judge to specially and state conclusions of law with clarity requires that findings and conclusions be sufficient to indicate bases of judge's decision. 2 It is not proper to announce decision and then direct counsel for prevailing party to prepare and submit findings of fact, conclusions of law and form of judgment, although judge may invite counsel to submit proposed findings and conclusions to assist him in formulating his own findings and reaching his decision. 3 Purpose of rule is to require judge to formulate and articulate findings and conclusions in course of his consideration and determination of case and as part of his decision-making process, so that he himself may be satisfied that he has dealt fully and properly with all issues in case before he decides it and so that parties involved and reviewing court may be fully informed as to bases of decision when it is made. C Leighton v. One William Street Fund (343 F.2d 565) (1965) Purpose of Rule 52(A) is usually to: 1 Aid the appellate court by affording it a clear understanding of the ground or the basis of the decision of the trial court 2 Make definite just what is decided by the case to enable the application of res judicata and estoppel principles to subsequent decisions; and 3 To evoke care on the part of the trial judge in ascertaining the facts. 4 Additionally: Could perhaps reduce likelihood of appeal + reassure you the judge treated all parties fairly D

Heterochemical Corp. v United States Rubber Co. (368 F.2d 169) (1966)
1 After inviting findings/conclusions from both parties court s adoption of the proposals of defendant did not reveal mechanically adoption or that they did not reveal insight and understanding of the basic issue

II

Clearly erroneous standard of review on appeal w lots of deference to judges fact finding. A Rule 52(a)(6): Setting Aside the Findings. Findings of fact, whether based on oral or other evidence, must not be set aside unless clearly erroneous, and the reviewing court must give due regard to the trial courts opportunity to judge the witnesses credibility. B Anderson v. City of Bessemer (470 US 564) (1985): 1 Review of factual findings under the clearly-erroneous standard-with its deference to judge-is the rule, not the exception. 2 In applying clearly erroneous standard to findings of district court sitting without jury, appellate courts must constantly have in mind that their function is not to decide factual issues de novo. C Rationale: Experience of judging comes, only trial court can see demeanor, scarce resources, so dont want to duplicate findings.

III Parties may submit proposed findings to the judge (Abuse of Discretion Review) A B It is useful for the parties to give the judge guidance for his findings. Degree to which judge uses the proposed findings in his findings are directly proportional to the room for appellate review.

Judge Control of Jury: Presumptions, Directed Verdicts, and New Trials

JUDGE COMMENT ON EVIDENCE
I Common Law: Practice for judge to comment on evidence, designed to influence jurys deciding.

Civil Procedure Professor Edward Cooper II Current law: A Two types of limitations on judges in the majority of states: 1 Trial Judge is confined to a statement of the applicable law and deprived of power even to mention the evidence. 2 Or the court is limited to presenting an impartial summary of the evidence. B Rationale: 1 Judge serves as an authority figure in the courtroom, so his advice on evidence carries much weight. 2 Judges influence is greater when he gives no reason for his advice. 3 Jurors who agree w the judge can use the judges opinion to their advantage during deliberations. C Nunley v Pettway Oil Co. (346 F.2d 95) (6th Cir. 1965): 1 District judge has right to comment on the evidence. 2 Under the circumstances, judge's statement of opinion amounted to an instructed verdict for defendant and went beyond limits of judicial comment and invaded ultimate fact finding function of jury. D Quercia v. United States (289 U.S. 466) (1933) 1 Judge may explain and comment on evidence and may express his opinion on facts, provided matters of fact are clearly left to jury's determination and he uses great care to avoid misleading/one-sided statements/deductions not warranted by evidence. 2 Judge may not in commenting on facts before jury assume role of witness or distort or add to testimony E

Travelers Ins. Co. v Ryan (416 F.2d 362) (1969)

1 Judge's duty in regard to suggestive comments and remarks on evidentiary matters must be performed with strict neutrality and utmost impartiality. 2 Unbiased comment on evidentiary matters is permissible conduct but comment on ultimate factual issues is improper.

BURDEN OF PROOF & PRESUMPTIONS

I Burden of Proof A Burdens of Production and Persuasion 1 Initial burden of production i Party A usually must satisfy burden of producing evidence to prove his proposition. a b If no competent evidence offered by Party A, judge will DV for Party B. P usually has the initial burden of production. D sometimes has the burden of raising an issue and producing evidence. Ex. Insanity defense. ii If Party A produces evidence, burden shifts to Party B to produce evidence disproving Party A. a If Party B fails to produce evidence, that case is ordinarily left to jury to determine whether Party A has also carried his burden of persuasion that the Party B was negligent, etc. b If Party As evidence is overwhelming and the judge is convinced that no reasonable jury would disagree, then he can DV for Party A. iii Burden of producing evidence on a single issue may shift from one side to the other as case progresses.

Civil Procedure Professor Edward Cooper 2 Once initial burden met, still must persuade i The burden of persuasion becomes relevant only when the moment for actual decision has arrived. ii Although judge has determined that P has met burden of production (and therefore won't issue DV), the jury may well find that he has not carried the burden of persuasion II Presumptions A Presumptions are particular rules about the effect of evidence. It is a method to control jury and judges. These are incorporated into jury instructions. 1 Types i Conclusive presumptions: Proof of one fact, or group of facts, is conclusive as to the existence of some other fact or facts. Presumption is irrebuttable; no evidence can dispute it. a Ex. Michael H v Gerald D holds that a child of a wife cohabitating w her husband who is not impotent or sterile is conclusively presumed to be a child of the marriage if no motion for blood tests are done within two years ii Permissible inference: If one fact or a group of facts are true, the jury is permitted to make/reject the presumption. Ex. Res ipsa loquitor. iii True Presumption or Conditionally Mandatory Presumption : Most common. If one fact or a group of facts are true, jury must make the presumption unless there is direct proof contrary to the presumption or other facts giving rise to an inconsistent presumption or inference. a Ex. A+B -> C unless i Proof of no C ii Proof of D and E, where D+E-> no C 2 Creation i Most are based on a conclusion they embody an accurate estimate of ordinary probabilities. ii Belief it operates to put the burden (or at least incentive) of producing evidence on the party who has superior means of access to proof on the issue. iii More simple and convenient to have the presumption. iv Social and economic policy make it desirable certain results by reached. B Mailbox presumption: if the mail is properly addressed (postage and deposited in receptacle), it is delivered. (The only other presumption seen by Cooper at the federal appellate level). 1 A (address) + B (mailed) = C (delivered). i There is only evidence of positive A and positive B. a Conclusive (Mandatory) Presumption: Proof of A and B require us to decide C. i Judge must instruct jury that they must find letter was delivered, OR must instruct jury on the consequences of C. There is no more burden of persuasion b Permissive Inference: Inferring C from proof of A and B. i Judge and jury are permitted to accept/reject the proposed inference. c d Even if jury doesnt believe A and B, jury may still find C. P has burden of persuasion Additional evidence to C, you don't have to find A and B. P still has burden of persuasion

ii Evidence of Non-C

Civil Procedure Professor Edward Cooper a b Direct evidence to no C (D testifies he never got the letter, etc.) Inferentially inconsistent evidence of non-C i P has burden of persuading you C. ii If P persuaded you of A and B, D has burden of persuading you of non-C C Bursting Bubble Theory of Presumption (Fed. Rule of Evidence 301) Generally Prevailing Presumption 1 A presumption vanishes upon the introduction of evidence which would support a finding of the nonexistence of the presumed fact, C. i So, the party that had the presumption now has the burden to persuade you there's C. ii D has to argue that the existence of non-C is more probable than existence of C. 2 Adopted by Evidence Rule 301. Embraced in Michigan Rule of Evidence 301, modeled on Federal Rule 301 3 In re Estate of Wood (374 Mich. 278) (1965) (outlier): Later overruled in Widmayer v Leonard. Presumption: If there is a relationship (A) and a party benefits from the relationship (B), the law recognizes a presumption that the party exercised their influence unduly (C). Rule: If a party produces evidence A and B are true, C is presumed. The other party must then provide contrary evidence to disprove A and B or presumed fact C; otherwise he risks jury instruction that they must presume C. If the other party produces contrary evidence, it is no longer mandatory to find C, but a permissive inference. Jury Instruction Options: 1 D introduces evidentiary facts which if true would disprove A and B, so precluding from inferring C. Jury Instruction: Jury should be informed of the evidentiary conflict and that they should presume C if they believe Ps evidence of facts A and B. This is a conditional mandatory inference. 2 D introduces facts D and E, whose existence would not be inconsistent w A and B, but from which could be inferred the non-existence of C. Thus, the jury can believe both sets of facts wo logical inconsistency, and so have two different inferences open to it. Jury instruction: Jury should be informed of the presumed fact C, but that jurors are not bound by law to find the presumed fact if they find the inference permissible from facts D and E overcomes inferring C. 3 If D attacks A and B and in addition, presents evidentiary facts D and E permitting an inference inconsistent w C. Jury Instruction: If they believe A and B and disbelieve D and E, they must presume C (mandatory inference). If they disbelieve A and B or believe D and E more, they should find C has not been proven. 4 If evidence rebuts C. Jury Instruction: If they cant decide which sides evidence preponderates, C must be presumed as a matter of law. Application: The ct finds it is evident that the presumption of undue influence applies in this case, since D was a confidential and fiduciary relation to the testator and was benefited as the executor. D introduced directly controverting evidence against findings that D was in a fiduciary relationship (so arguing against A

Civil Procedure Professor Edward Cooper and B) and evidentiary facts that testator received effective independent legal advice inconsistent w Ps presumed fact of undue influence (providing D and E). This puts the case in the 3 rd type of jury instruction. Holding: Case is reversed and remanded to provide the correct jury instruction. 4 Wood is the outlier. Insofar as Wood appears to hold that the trier of fact must be instructed as to the existence of the presumption and allowed to make the necessary inference even in the face of rebutting evidence it is no longer controlling.

DIRECTED VERDICTS (DURING TRIAL)

I Introduction A A motion seeking to have the judge take the case form the jury on the ground that the evidence is too weak to support a verdict. By granting DV, the judge is not resolving factual disputes, but makes a legal judgment that the evidence is so lopsided that there really is no meaningful factual dispute for a jury to consider. B History: In 1800s, the practice was that the jury decided law and fact. If this was still the practice, there would be no such thing as DV. Even though these were invented, they are used rarely. C D COOPER: Dont say judgment as a matter of law is at the trial courts discretion. There is no discretion. Rationale for DV 1 Saves time and efficiency. i The earlier the JMOL is made, the more savings there are. ii Even if motion is made at the close of evidence, there are savings bc the judge doesnt have to instruct the jury, jury doesnt have to deliberate, and there need not be arguments to the jury. iii By partitioning the trial, the later stages of trial may be avoided. 2 DV can shape trial and affect what is submitted to the jury. 3 Doesnt look like the judge is taking the case from and overruling the jury. E Advantages of DV: 1 Cts need a tool to protect the law against jurors who disregards, misunderstands, or misapplies the law. i Hypo: P sues D for not saying good morning. Judge instructs that D has no duty. a Jury could find for P on these wrong bases. i Sympathetic verdict: perhaps D is a grouch/prominent person. ii Could be a sunshine community and they think it should be law. 2 Difficult to get a cross section of the community. Jury could be stupid, rebellious, or bigoted, increasing the possibility of them getting it wrong. i Juries traditionally composed of 12 ppl. Judges decided to decrease it, many to 6, bc it costs a lot of $ and time. The SC stated the 7th is satisfied w a jury of 6 ppl. See Rule 48. F Criticism of DV: Sometimes, cts want juries to make the law. Ex. Juries w increasing frequency would provide some leeway in contributory negligence, and the law later made it easier. G 7th amendment 1 Galloway v United States (319 US 372) (1942): i The essential requirement in determining whether evidence is sufficient for jury is that mere speculation be not allowed to do duty for probative facts

Civil Procedure Professor Edward Cooper ii Taking the case away from the jury on the ground P hasnt met its burden of production does not violate 7th iii Holding: No. Jury was not absolute master of fact in 1791, since cts then as now excluded evidence for irrelevancy and other reasons. Even then, rules are constantly developing and 7 th doesnt bind the ct to the exact procedure/details according to CL in 1791. 7 th Amendment only binds cts to the very fundamentals of jury trial as existed in 1791. iv J Black dissents: Argues the majoritys decision marks the continuation of the judicial erosion of 7 th. a Describes Georgia v Brailsford (1794): Three years after the ratification of the 7 th, the SC stated that juries may sometimes have a right to judge both fact and law and that both are still lawfully w/in a jurys power of decision. Rule 50 (a). Judgment as a Matter of Law in a Jury Trial 1

Judgment as a Matter of Law.

1 In General. If a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue, the court may: 1 2 resolve the issue against the party; and grant a motion for judgment as a matter of law against the party on a claim or defense that, under the Motion. A motion for judgment as a matter of law may be made at any time before the case is

controlling law, can be maintained or defeated only with a favorable finding on that issue. 2 submitted to the jury. The motion must specify the judgment sought and the law and facts that entitle the movant to the judgment. In 1991, Rule 50 was amended to change the terms directed verdict and judgment notwithstanding the verdict to read judgment as a matter of law. 2 Rationale: i To show that DV and JNOV should be governed by identical standards. ii To emphasize Rule 56 for SJ is to be governed by the same standard as well. Same phenomenon, same sufficiency of the evidence. iii Reformatting Rule 56 as a matter of procedure, but that failed. B Requirements of Rule 50(a)(2) 3 Timing: Motion must be made after the party has been fully heard on the issue and before the case is submitted to the jury. 4 Must specify: judgment sought and law and facts. II Standard for DV and JNOV A B Standard is the same regardless if is made before end of trial (DV) or after trial (JNOV). TJ discretion 1 TJ has no discretion in granting or denying DV or JNOV. 2 TJ has discretion on the timing of JMOL either after the close of evidence (DV) or after verdict (JNOV).

Civil Procedure Professor Edward Cooper C Two formulations of the DV standard: 1 Scintilla test: Judge will deny the motion and refer the case to a jury if there is a scintilla of evidence on which the jury might possibly render a verdict for the nonmovant. i A case should go to the jury if there is even a scintilla of evidence to support the opposing partys cause, Galloway. a Hypos: i P has burden of proof. Offers evidence 1) the car that ran over my foot is a white car and 2) the D has a white car. Is that enough to grant DV for P? Probably not. ii P has burden of proof. Offers evidence the car was white X and 2) D has the only white X in the city and Michigan. This is more evidence, but still doesnt seem to be enough to grant DV for P. 2 Substantial evidence test: Court will grant the motion unless there is sufficient or substantial evidence suggesting that the jury might decide for the nonmovant. i FRCP endorses substantial evidence test. a Rule 50(a)(1): If there is no legally sufficient evidentiary basis for a r easonable jury to find for a party on that issue, the ct may grant JMOL. This came into the Rule in 1991. D E App elate Court decides de novo if granting of a JMOL was proper. Judges do not determine credibility. You look at evidence in a light most favorable to the non-movant. They assume all favorable inferences that a jury might reasonably draw from the evidence. Rationale: to show respect for the jury. F When reviewing decisions of administrative agencies, they look for substantial evidence on the record considered as a whole, which is different from their role in reviewing juries. III Determining whether there should be DV A Three interdependent areas 1 Witness credibility 2 Fact inference (inferring facts not testified to) 3 Law application B Witness Credibility 1 Daniel J Hartwig Associates, Inc. v Kanner (7th 1990): P sued for breach of K for services as a consulting and expert witness to D. D argued defense of misrepresentation, for which he has burden. Standard: If not enough evidence to create issue of credibility, then DV. Court is not to determine credibility, rather it is determining whether there is sufficient evidence to create an issue of credibility. If yes, then go to jury. If no, then DV. 2 Witness Evaluation: Ability/Opportunity to observe. Ex. Crowded location. Foggy night. Obstructing objects. Capacity or qualifications to testify. Interest in trials outcome. Cts prefer a disinterested witness. Extent of memory decay from the time of the event to the time of the trial. Your memory may be affected by biases, you may reorganize facts to fit with your world view. Events you see are shaped by your expectations.

Civil Procedure Professor Edward Cooper Criminal record: Some statutes allow witnesses w criminal conviction, if less than 10 yrs ago and punishable for >1 yr, or an offense that involves fraud/dishonesty, to be impeached by their criminal record. Witness demeanor: emotion, gestures, mannerism, facial expression, etc. Consistency a b c d Consistent w the laws of nature. Consistent w current testimony or prior testimony. Consistent w other witnesses testimony. Consistent w prior statements. i Out of court statements are hearsay, but may be used to impeach credibility. 3 If testimony might be credible, credibility assertion alone will not prevent DV. Must have competing evidence. i A non-movants assertion that credibility is at issue will not suffice in preventing the ct to direct a verdict if all of the objective or indisputable evidence indicates that a particular piece of testimony is credible. ii SJ will not be defeated on the sole grounds of testing the credibility of the moving partys witnesses. a Dyer v MacDougall (201 F.2d 265) (1952) i If defendants who motion for summary judgment should succeed in proving that plaintiff would not have enough evidence to go to jury on the issue, summary judgment was right ii Though in strict theory a party having the affirmative may succeed in convincing a jury of the truth of his allegations in spite of the fact that all witnesses denied them, a verdict should nevertheless be directed against him in federal District Court. iii Rationale: Since the TJ seen and heard the evidence of a partys demeanor, he can be right or wrong in thinking the demeanor gives support to a verdict. BUT, on appeal, demeanor evidence disappears, since the app ct cannot see/hear the party, just read his words. So, it is impossible for an app ct to say if the TJ was right/wrong. TJ would become the final arbiter in cases where the evidence of witnesses present in court might be determinative. 4 SC finds disbelief of one testimony can support a contrary claim . i Hypo: P was fired, over 40, replaced by someone under 40. Under Title 7, fulfilled prima facie case, this is enough to support finding of age discrimination, unless D, employer, can provide another explanation. D argued P was helping others falsify their timecard. a Does disbelief of the timecard fraud bolster the idea he was discrimination? SC holds yes. 5 NATURE OF THE EVIDENCE TO BE CONSIDERED FOR JMOL 1982 Cases i Examine all the evidence in a manner most favorable to the non-moving party ii Only evidence which supports the verdict winner is to be considered iii The reviewing court may consider uncontradicted, unimpeach evidence from disinterested witnesses 6 MUST BELIEVE WITNESSES: i Must-believe witness: Disinterested, unimpeached, uncontradicted, and engaged.

Civil Procedure Professor Edward Cooper a A small amount of interest may not disqualify a person from being a must-believe witness, such as an expert witness ii Is the perfect witness a must-believe witness? a Yes: Lundeen v. Cordner (354 F.2d 401) (1966) i Opposing party cannot force a trial to cross-examine affiant whose testimony is essential to movant's case where there is no indication that affiant was biased, dishonest, mistaken or unaware or unsure of facts, nor must court deny summary judgment on basis of vague supposition that something might turn up at trial. ii For an affiant's credibility to be properly put in issue by litigant so as to defeat summary judgment, specific facts must be properly produced. b Yes: Reeves v Sanderson Plumbing Products, Inc. (530 US 133) (2000) : i Court should give credence to evidence favoring nonmovant and evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that that evidence comes from disinterested witnesses. c No: Purcell v Waterman S.S. Corp (221 F.2d 953) (1955) i Testimony of witnesses need not necessarily be accepted just because they are not contradicted and their credibility is not impeached. d No: Broadcast Music, Inc. v Havana Madrid Restaurant Corp (175 F.2d 77) (1949) i The fact that plaintiffs' sole witness' testimony was uncontradicted, unimpeached, and not inherently improbable, did not oblige trial judge to accept it as true. C Fact Inference 1 Interdependence between fact inference and credibility i Which witnesses the jury believes determines what inferences it is willing to make. ii Bc the credibility function is tied up w the inference function, it would be artificial to split them up. 2 COMPARISON BETWEEN Lavender and Denman i W/in limits, the fact that the jurys decision will involve some speculation is not a ground for taking the case from the jury. If the facts are in dispute or a reasonable person may draw different inferences from the evidence, the jury may use speculation and conjecture to settle the dispute by choosing what seems to be most reasonable inference. ii Lavender v. Kurn (327 U.S. 645) (1946) a Whenever facts are in dispute or evidence is such that fair-minded men may draw different inferences, a measure of speculation and conjecture is required on part of those whose duty it is to settle the dispute by choosing what seems to them to be the most reasonable inference and only when there is a complete absence of probative facts to support the conclusion reached does a reversible error appear. b Where there is an evidentiary basis for jury's verdict, jury is free to discard or disbelieve whatever facts are inconsistent with its conclusion.

Civil Procedure Professor Edward Cooper c The appellate court's function is exhausted when evidentiary basis for jury's verdict becomes apparent, it being immaterial that the court might draw a contrary inference or feel that another conclusion is more reasonable. iii Denman v Spain (242 Miss. 431)( 1961): a b Verdicts cannot be based on possibilities on how an accident occurred Passenger must prove, not only that operator of automobile which collided with automobile in which passenger was riding was guilty of negligence, but that such negligence proximately caused or contributed to collision and consequent damage. iv How do you square Denman and Lavender, since Lavender required some evidentiary basis but Denman required more than just an evidentiary basis of D speeding? a

Denman was in a state court, while Lavender was in SC. So, MO SC could just have a stricter
standard. Ct could just be more sympathetic in the Lavender case. Could say that Denman had a complete absence of probative facts, which was the standard in

b c

Lavender.
d Though TJ has no discretion in JMOL, perhaps the higher cts still consider TJs decisions in determining whether to overturn the decision. D Application Law to Fact 1 Given all the facts and inferences that the jury can make, how much freedom will the jury have in finding one way or another? i Juries generally have a lot of leeway in determining standard of care. In other cases, such as design defects, the ct may want to achieve more consistency by not giving the jury as much leeway. 2 Degree to which we trust juries to apply law to facts depends upon the context (according to Roy). i Context is important in determining reasonableness a Roy v Inhabitants of City of Lewiston (42 F.3d 691) (1994): i In considering motion for summary judgment, court must assume that jury would resolve credibility issues and draw reasonable inferences in favor of opposing party. ii Judgments about reasonableness are usually made by juries in arguable cases, even if there is no dispute about what happened. iii Term reasonableness is used in different ways in different contexts; in determining what constitutes objectively reasonable behavior of police officer in using deadly force as will entitle officer to qualified immunity from suit under federal civil rights statute, more latitude is allowed than might be customary in simple tort case. 3 Jury can contribute to questions of causation, because it is like fact finding i Negligence and causation are inseparable a b Whether negligence caused an injury depends upon what the negligence is. What injury is caused determines what the relevant negligent behavior was.

ii Rogers v Missouri Pacific R. Co. (352 US 500) (1957):

Civil Procedure Professor Edward Cooper a Not the court, but the jury, is tribunal to determine fact, when uncertainty as to fact arises from testimony. b Where probative facts would support with reason verdict favorable to plaintiff, in action under Federal Employers' Liability Act, decision as to whether plaintiff's conduct had been sole cause of his mishap was exclusively for jury. c Test: Do the proofs justify w reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought.

JNOV (POST-TRIAL)
Rule 50. Judgment as a Matter of Law in a Jury Trial; Related Motion for a New Trial; Conditional Ruling 1

Renewing the Motion After Trial; Alternative Motion for a New Trial. If the court does not grant a motion for

judgment as a matter of law made under Rule 50(a), the court is considered to have submitted the action to the jury subject to the court's later deciding the legal questions raised by the motion. No later than 28 days after the entry of judgment or if the motion addresses a jury issue not decided by a verdict, no later than 28 days after the jury was discharged the movant may file a renewed motion for judgment as a matter of law and may include an alternative or joint request for a new trial under Rule 59. In ruling on the renewed motion, the court may: 1 2 3 2 allow judgment on the verdict, if the jury returned a verdict; order a new trial; or direct the entry of judgment as a matter of law.

Granting the Renewed Motion; Conditional Ruling on a Motion for a New Trial.
1

In General. If the court grants a renewed motion for judgment as a matter of law, it must also

conditionally rule on any motion for a new trial by determining whether a new trial should be granted if the judgment is later vacated or reversed. The court must state the grounds for conditionally granting or denying the motion for a new trial. 2

Effect of a Conditional Ruling. Conditionally granting the motion for a new trial does not affect the

judgment's finality; if the judgment is reversed, the new trial must proceed unless the appellate court orders otherwise. If the motion for a new trial is conditionally denied, the appellee may assert error in that denial; if the judgment is reversed, the case must proceed as the appellate court orders. 3

Time for a Losing Partys New-Trial Motion. Any motion for a new trial under Rule 59 by a party against whom Denying the Motion for Judgment as a Matter of Law; Reversal on Appeal. If the court denies the motion for

judgment as a matter of law is rendered must be filed no later than 28 days after the entry of the judgment. 4 judgment as a matter of law, the prevailing party may, as appellee, assert grounds entitling it to a new trial should the appellate court conclude that the trial court erred in denying the motion. If the appellate court reverses the judgment, it may order a new trial, direct the trial court to determine whether a new trial should be granted, or direct the entry of judgment. A Requirements 1 Timing: JNOV must be filed no more than 28 days after entry of the judgment. 2 May alternatively request: alternative new trial or joint request for new trial under Rule 59.

Civil Procedure Professor Edward Cooper 3 Respond to denial of motion of conditional new trial. II JNOV v. DV A Why do we have both JNOV, when we have DV? (Most of these reasons can be found in Unitherm) 1 Final determination of the case is expedited greatly. i If the jury agrees with courts appraisal of the evidence, and returns a verdict for the party who moved for DV, the case is at end. This avoids disputes about propriety, preserves parties rights to a new trial, and could save money in the long run. ii If the jury brings in a different verdict, the TC can grant JNOV. 2 Appeal: i If DV is granted and the app court holds that the evidence in fact was sufficient to go to jury, an entire trial must be had. ii If JNOV is wrong, appellate court can just reverse and order judgment on the verdict of the jury iii Jury verdict is more likely to be upheld on appeal. 3 Timing: JNOV gives judge more time to decide. DV decision must be made quickly the case must go to a jury. Judges can think while jury is deliberating and when JNOV is made. 4 Jury verdict may influence decision. It may make judge think twice about who the evidence supports. B Why would we ever use DV then? 1 Some cases are so clear, that there is no question about it. 2 Save time and money of continuing trial: creating instructions, coming to ct, taking care of things that might mess up later, etc. 3 Help jury i Uniformity: Some issues may be better for DV (negligence, for ex) to keep things certain. ii Instructions difficulty: If you rely simply on instructions, jury may mess it up. a Hypo: Multiple theories of recklessness, willfulness, and negligence by P. Ct finds at the end of trial, there is ample evidence of negligence but nothing that would satisfy recklessness or willfulness. Should you submit the case to the jury? DV is often necessary to form a coherent instruction to the jury. So, ct will DV recklessness or willfulness, but submit negligence. 4 Easier to pretend that the issue is so clear, the jury would come to the same conclusion. More uncomfortable w expressly overruling jury JNOV. i If you submit it to the jury, the nature of the confrontation changes if the jury decides the other party, bc verdict-winner and JNOV-winner feel justified in winning. 5 JNOV criticism: Less likely to get a settlement, bc jury verdict winner and the JNOV winner would be more likely to hold out, since they feel more justified. III Procedure A B Standard: The standard for DV and JNOV motions are the same and can be found above. For a court to grant JNOV, a DV motion and a JNOV motion should be made 1 An attorney must i Request DV before the case is submitted to the jury and specify law and reasons for the motion.

Civil Procedure Professor Edward Cooper a Rule 50(a): The motion must specify the judgment sought and the law and facts that entitle the movant to the judgment. b A party can request for a DV, but ask the ct not to grant it, since the party may think the jury will rule for them and if they find against them, they will renew JNOV. c If the party fails to make a DV motion, both the TC and app ct cannot consider JNOV. Cant bring new legal qs from DV, but you can bring new facts. ii Renew the motion 28 days after verdict. Otherwise, App ct is barred from entering JNOV or new trial. a 2 Why should we have to move for both? i Gives nonmovant a notice that this is the last clear chance to produce evidence to get the issue to the jury. Cooper says this is weird because it forces the movant to help out the nonmovant. ii Give court clear notice of insufficiency so that court has the option of bypassing the jury. iii Forces the lawyers to talk to the judge and move the decision forward. Rule 50(a)(2) requires the motion specify factual and legal grounds. 3 Criticism i If they were going to make a JNOV decision, there would be nothing in the record thats different from DV motion. ii Sometimes a party can just slip up. This rule could lead to unjust results. iii Not clear in the rules if without a JNOV motion by a party, the TC can still make a JNOV. 4 Johnson v New York, N.H. & H.R. Co. (344 U. S. 48 ) (1952) (Cited in Unitherm): i In absence of timely motion for JNOV, neither trial judge nor appellate court may enter such judgment. ii 50(b) providing that trial court may set aside verdict and either order new trial or direct entry of judgment in favor of movant, was designed to provide a precise plan to end the prevailing confusion about directed verdicts and motions for judgments notwithstanding verdicts iii The requirement of timely motion (28 days no exceptions) after verdict is essential part of 50(b) and mere fact that trial judge makes express reservation of decision on motion for directed verdict will not permit granting of relief under rule in absence of timely motion after verdict. 5 Unitherm Food Systems, Inc. v Swift-Eckrich, Inc. (126 S. Ct. 980) (2006): i Party's failure to file a postverdict motion for JMOL deprives the appellate court of the power to order the entry of judgment in favor of that party where ii Postverdict motion for JMOL is necessary because determination of whether a new trial should be granted or a judgment entered under rule governing such motions calls for the judgment in the first instance of the judge who saw and heard the witnesses and has the feel of the case which no appellate printed transcript can impart. iii A party is not entitled to pursue a new trial on appeal unless that party makes an appropriate postverdict motion in the district court. iv A defendant that moved for directed verdict could not seek a new trial on appeal on the basis of insufficiency of the evidence if he failed to renew his preverdict motion by filing a postverdict JMOL or for new trial; by not seeking a new trial before the District Court, defendant forfeited its right to do so on appeal;

Civil Procedure Professor Edward Cooper v While a district court is permitted to enter JMOL when it concludes that the evidence is legally insufficient, it is not required to do so; to the contrary, the district courts are, if anything, encouraged to submit the case to the jury, rather than granting such motions. 6 Should the court be able to JNOV without a motion for JNOV? Suppose a party moves for DV under Rule 50(a). Ct does not grant the motion and the jury verdict is against the moving party. i Circuit split on whether a judge may grant JNOV sua sponte. a Johnson/Unitherm hold that the court cannot grant JMOL unless the moving party moves for JNOV. i Cooper views this as the root of the problem, bc the SC wrote an opinion in broad terms wo thinking about the qs that seem to be addressed. b Rule 50(b), on its face, seems to say the opposite. i Not much is lost by allow the ct to act on its own: a Nonmovant was already fully heard and had notice of the asserted deficiency of evidence and a pre-verdict opportunity to correct the deficiency from the DV motion. b Judge couldve invited a motion by the party who moved for DV anyway. ii The most likely risk is that the movant believes the JNOV will be reversed on appeal and would rather have a new trial. The movant can always ask for that if the verdict winner does not. C Even if DV is denied, there is an automatic reservation of decision by the court. 1 Rule 50(b): If the court does not grant a motion for JMOL made under Rule 50(a), the court is considered to have submitted the action to the jury subject to the court's later deciding the legal questions raised by the motion. 2 Baltimore v Carolina Line, Inc. v Redman (295 U. S. 654) (1935): i Practice of reserving law questions arising during jury trials and taking verdicts subject to ultimate rulings thereon was well established when Seventh Amendment was adopted, and hence part of common-law rules to be considered in testing and measuring right of jury trial preserved and protected by such amendment. ii Sufficiency of evidence to support verdict for plaintiff was law question for court on defendant's motions for dismissal of complaint and directed verdict. IV Verdict Winner and Losers Options A Verdict Losers Options (Moving Party) 1 Dismissing without o prejudice (Coop recommends dont use this often) i Rule 41: allows party to find more evidence or determine they will not try again. 2 JNOV and/or New Trials i Rule 50(b): the movant may file a renewed motion for judgment as a matter of law and may include an alternative or joint request for a new trial under Rule 59. So, verdict loser can move for either. a So three options for verdict loser to request i JNOV only ii New trial only iii JNOV or new trial

Civil Procedure Professor Edward Cooper b Reason why verdict loser may not request new trial i New trial may be more costly than damages of this judgment ii Jury in the next trial may find for P for an even greater amount iii The verdict winners party already knows all of the verdict losers tricks. ii Rule 59(d) states the ct, on its own initiative, can grant a new trial within 28 days. a Cooper questions if the court should do this, bc the party may not want a new trial. Ex. They know they cant pull a jury verdict on the second round, not enough money, etc. iii Ex. Of a TJs debate on JMOL or new trial: Design defect. State law requires proving a safer design. P brought inadmissible evidence and the evidence weighs in favor of D. Jury finds for P. If TJ JMOLs for D, app ct might find some evidence for P, reversing. So, TJ would likely favor new trial, bc the evidence is barely enough for JMOL, so new trial is a safer choice. B Verdict Winners Options (Nonmoving party) 1 Protections for Verdict Winner i Rule 50(b): Requires the verdict loser to make a renewed motion. ii Rule 50(c): Protects the verdict winner by making a decision during or soon after the trial whether there will be a conditional trial, thereby giving verdict winner notice. 2 Opposing JNOV Arguments i Verdict winner may argue that trial was sufficient so JNOV should not be granted, and ii If the judge disagrees, the judge should order a new trial. 3 New Trial i Rule 50(d): Any motion for a new trial under Rule 59 by a party against w hom judgment as a matter of law is rendered must be filed no later than 28 days after the entry of the judgment. a b So, verdict winner may argue for a new trial after JNOV is granted against him. Rationale: i Rules allow for the lawyer at trial to say they should win JNOV when judge is considering and within 28 days later, request new trial if judge actually does grant the other party JNOV. Otherwise, lawyers would have to argue awkwardly conflicting things. ii Verdict winner can move for a new trial rather than appeal, so they can have another chance to make better case. c Dilemma of whether verdict winner should ask for a new trial i Verdict winner may not want new trial a b Problem of coming up w new evidence for the next trial. If judge grants new trial, verdict winner cannot immediately appeal. App. Ct. may affirm JNOV and leave verdict winner wo option of new trial. App. Ct. may be upset that verdict loser didnt ask for new trial which it can review at same time as JNOV.

ii If verdict winner wants to appeal JNOV immediately and does not ask for new trial a b

Civil Procedure Professor Edward Cooper iii Possible middle ground: Ask the judge to issue a conditional new trial ruling, then allow verdict winner to appeal JNOV. Cooper doesnt know if this has ever been used. Seems difficult, bc you would have to force the ct to invent new procedure. a Ct of app is likely not to accept this bc it will think that this is a trick to get an interlocutory appeal of JNOV. Also its not in Rule 50 (though not prohibited either). ii Rule 59: Verdict winner might want a new trial wo any JNOV against it, even this doesnt happen often. 4 Conditional Trial i Rule 50(c)(1): If the court grants a renewed motion for judgment as a matter of law, it must also conditionally rule on any motion for a new trial by determining whether a new trial should be granted if the judgment is later vacated or reversed. The court must state the grounds for conditionally granting or denying the motion for a new trial. a Rationale: i Takes advantage of TJs knowledge of the case, since TJ is intimately aware of the details. ii Allows new trial motion to be reviewed immediately, eliminating multiple appeals. iii If you give your rationale for your ruling, it gives the court of appeals the reason behind how you ruled and allows them to decide CHECK THIS. ii Rule 50(c)(2): Conditionally granting the motion for a new trial does not affect the judgment's finality. a If Ct of App reverses JNOV, the TJ decided the conditional ruling would be: i Granted: Verdict loser gets new trial unless ct of app reverses the new trial ruling. a App. Ct. is usually heavily influenced by TJs conditional granting of new trial and will usu. grant new trial. ii Denied: Verdict loser may argue to ct of app that there was an error in denying the new trial. b c Appeals A Options 1 TJ denies JNOV and new trial Verdict loser can appeal judgment, since this is a final decision. i Appeals can affirm judgment if determine post-trial motions properly denied. ii Appeals can reverse judgment and grant a b New trial JNOV (Neely) So, TC states if there should or shouldnt be a new trial, but app ct can reverse it. Problem: Difficult to make conditional ruling. This requires the judge to assume hell be reversed His grant of new trial will depend on why hes reversed, which he doesnt know. V

2 TJ denies JNOV, grants new trial The case must proceed to a new trial and the denial of the JNOV cannot be reviewed until after the new trial has concluded. Hard to appeal after 2 nd trial, bc difficult to show that the denial, even if erroneous, had a prejudicial effect on the 2 nd trial. 3 TJ grants JNOV and rules for a conditional new trial Verdict winner can appeal JNOV and new trial. i Appeals can affirm JNOV

Civil Procedure Professor Edward Cooper ii Appeals can reverse JNOV and, according to Rule 50(e) 1) order a new trial, 2) direct the TC to determine if new trial should be granted, and 3) direct the entry of judgment. Seems like reinstated the jury verdict. a Generally, app ct will remand a new trial in accordance w TJ, but app ct has the authority to grant new trial or reinstate the original verdict. 4 Even if party only moved for JNOV and did not request new trial, appellate court can order new trial anyways if disagree with denial of JNOV. B Rule 50(e) If the court denies the motion for judgment as a matter of law, the prevailing party may, as appellee, assert grounds entitling it to a new trial should the appellate court conclude that the trial court erred in denying the motion. If the appellate court reverses the judgment, it may order a new trial, direct the trial court to determine whether a new trial should be granted, or direct the entry of judgment. 1 direct the entry of judgment was not in the Rule before. Added bc of Neely and Weisgram. C Verdict winners duties after denial of JMOL 1 Argue the past trial was okay and 2 Assert grounds entitling it to a new trial. i Otherwise, a Neely situation might happen that verdict winner only argues the trial was ok and if the ct decides it wasnt ok and JNOVs for the other side, the new trial option is gone. ii Risk: arguing yourself into a new trial, even though you couldve won JNOV. D Ct of app can enter judgment for verdict loser and refuse to not turn the case to TC 1 Neely v Martin K. Eby Construction Co. (87 S.Ct. 1072) (1967): i Statutory grant of appellate jurisdiction to courts of appeals is broad enough to include power to direct entry of judgment n.o.v. on appeal ii Rule relating to conditional ruling upon denial of motion for judgment n.o.v. is permissive in nature of direction to Court of Appeals, and does not prohibit Court of Appeals from directing entry of judgment n.o.v. in appropriate cases iii Losing defendant may bring to Court of Appeals questions such as erroneous exclusion of evidence or insufficiency of evidence resulting from imposition of too high a burden of proof without ever moving for new trial in district court, and, likewise, if plaintiff's verdict is set aside by trial court on defendant's motion for judgment n.o.v., plaintiff may bring such grounds directly to Court of Appeals without having moved for new trial in district court. E Ct of apps can enter judgment for a party, despite excising evidence, making the verdict unsupportable 1 Weisgram v Marley Co. (120 S.Ct. 1011) (2000) i Court of Appeals may direct the entry of judgment as a matter of law for verdict loser, upon determining that verdict cannot be sustained due to error in admission of evidence, and Court is not required to remand the case to the trial court for a new trial determination. ii If a court of appeals determines that the district court erroneously denied a motion for judgment as a matter of law, the appellate court may a Order a new trial at the verdict winner's request or on its own motion

Civil Procedure Professor Edward Cooper b Remand the case for the trial court to decide whether a new trial or entry of judgment for the defendant is warranted c Direct the entry of judgment as a matter of law for the defendant. Though the experts werent admissible according to the ct of apps, the TC found them admissible and P relied on that. Ct presumes P cannot find better experts. P could have gotten cheap experts, bc of a budget limit. Looking for a persuasive expert could be hard, they have to consider factors knowledge, jury side manner, decisive answers, etc. b c Unclear how much weight jury put on the expert testimony. Unfair reliance on P not stating grounds and not petitioning for a new trial, since a P will not want to argue in appeal that the first trial was good, but we should do X and Y if its not good. The latter argument questions her first argument. Plus, ct doesnt like new arguments in app ct, but must be mentioned in the initial briefing and argument. iii Criticism a

SUMMARY JUDGMENT (PRE-TRIAL)

I Introduction A History: Came from 19th century English law. States began to enact similar SJ procedures. Initially, judges were reluctant to use them, but by the 1920s, judges granted more than of such motions. B Debate on SJ 1 Arguments for SJ i Simplify Trial: Ct can grant SJ on entire claims or any portion (partial SJ). Focuses jurys attention. ii Discovery: Provides incentive to reveal enough of your evidence to defeat SJ to counteract desire not to reveal arguments. iii Judge Clark: a Avoid useless trials: SJ is necessary in our system of simple pleading in fed courts to avoid useless and unnecessary trials. b Rule 56 doesnt contain either a restriction on the kind of actions to which it is applicable or any presumption against its use. c Refuses J Franks slightest doubt standard, bc it can be developed as to practically all things human. d A narrow construction of Rule 56 would encourage trials for harassment and endorses settlements just bc trial is too costly. 2 Arguments against SJ i Infringed on 7ths right to a jury. a Ct refuses this. Even if there is no genuine issue, you can grant SJ as a DV at trial, fulfilling 7th amendment. Its the same standard as DV. ii Assumes that you wont find any info at trial that will change your mind. iii Could encourage judges to SJ when their dockets are full. iv Judge Frank:

Civil Procedure Professor Edward Cooper a b c d e P must not be deprived of the crucial test of credibility, cross-examining a witness w a jury. SJ shouldnt be granted when there is the slightest doubt as to the fact. Fear that SJ allows judges to usurp the role of juries. Fear that SJ will favor the party w more ingenious and better paid lawyer. Use of SJ to clear dockets is an unjust deprivation of a day in court.

3 Poller v CBS, Inc. (369 U.S. 464) (1962) [Adoption of Franks View it seems] Rule 56. Summary Judgment (as of Dec. 1, 2010) 1

Motion for Summary Judgment or Partial Summary Judgment. A party may move for summary judgment,

identifying each claim or defense or the part of each claim or defense on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. The court should state on the record the reasons for granting or denying the motion. [SJ is granted on pleadings, discovery and disclosure materials on file]. 2

Time to File a Motion. Unless a different time is set by local rule or the court orders otherwise, a party may file Procedures.
1

a motion for summary judgment at any time until 30 days after the close of all discovery. 3

Supporting Factual Positions. A party asserting that a fact cannot be or is genuinely disputed must
1 citing to particular parts or materials in the record, including depositions, documents, electronically

support the assertion by: stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or 2 showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact. 2

Objection That a Fact Is Not Supported by Admissible Evidence. A party may object that the material Material Not Cited. The court need consider only the cited materials, but it may consider other Affidavits or Declarations. An affidavit or declaration used to support or oppose a motion must be

cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence. 3 materials in the record. 4 made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated. 4

When Facts Are Unavailable to the Nonmovant. If a nonmovant shows by affidavit or declaration that, for
1 2 3 defer considering the motion or deny it; allow time to obtain affidavits or declarations or to take discovery; or issue any other appropriate order.

specified reasons, it cannot present facts essential to justify its opposition, the court may:

Failing to Properly Support or Address a Fact. If a party fails to properly support an assertion of fact or fails to
1 2 give an opportunity to properly support or address the fact; consider the fact undisputed for purposes of the motion;

properly address another partys assertion of fact as required by Rule 56(c), the court may:

Civil Procedure Professor Edward Cooper 3 grant summary judgment if the motion and supporting materials including the facts considered issue any other appropriate order. grant summary judgment for a nonmovant; grant the motion on grounds not raised by a party; or consider summary judgment on its own after identifying for the parties materials facts that may not be undisputed show that the movant is entitled to it; or 4 6

Judgment Independent of the Motion. After giving notice and a reasonable time to respond, the court may:
1 2 3

genuinely in dispute. 7

Failing to Grant All the Requested Relief. If the court does not grant all the relief requested by the motion, it

may enter an order stating any material fact including an item of damages or other relief that is not genuinely in dispute and treating the fact as established in the case. 8

Affidavit or Declaration Submitted in Bad Faith. If satisfied that an affidavit or declaration under this rule is

submitted in bad faith or solely for delay, the court after notice and a reasonable time to respond may order the submitted party the reasonable expenses, including attorneys fees, it incurred as a result. An offending party or attorney may also be held in contempt or subjected to other appropriate sanctions. Rule 56. Summary Judgment (pre-Dec. 1, 2010) 1

By a Claiming Party. A party claiming relief may move, with or without supporting affidavits, for summary By a Defending Party. A party against whom relief is sought may move, with or without supporting affidavits, Time for a Motion, Response, and Reply; Proceedings .
1 1 2 These times apply unless a different time is set by local rule or the court orders otherwise: a party may move for summary judgment at any time until 30 days after the close of all discovery; a party opposing the motion must file a response within 21 days after the motion is served or a the movant may file a reply within 14 days after the response is served.

judgment on all or part of the claim. 2 for summary judgment on all or part of the claim. 3

responsive pleading is due, whichever is later; and 3 4

Case Not Fully Adjudicated on the Motion .

1

Establishing Facts. If summary judgment is not rendered on the whole action, the court should, to the

extent practicable, determine what material facts are not genuinely at issue. The court should so determine by examining the pleadings and evidence before it and by interrogating the attorneys. It should then issue an order specifying what facts including items of damages or other relief are not genuinely at issue. The facts so specified must be treated as established in the action. 2

Establishing Liability. An interlocutory summary judgment may be rendered on liability alone, even if

there is a genuine issue on the amount of damages. 5

Affidavits; Further Testimony.

1

In General. A supporting or opposing affidavit must be made on personal knowledge, set out facts that

would be admissible in evidence, and show that the affiant is competent to testify on the matters stated. If a paper or part of a paper is referred to in an affidavit, a sworn or certified copy must be attached to or served

Civil Procedure Professor Edward Cooper with the affidavit. The court may permit an affidavit to be supplemented or opposed by depositions, answers to interrogatories, or additional affidavits. 2

Opposing Party's Obligation to Respond. When a motion for summary judgment is properly made and

supported, an opposing party may not rely merely on allegations or denials in its own pleading; rather, its response must by affidavits or as otherwise provided in this rule set out specific facts showing a genuine issue for trial. If the opposing party does not so respond, summary judgment should, if appropriate, be entered against that party. 6

When Affidavits Are Unavailable. If a party opposing the motion shows by affidavit that, for specified reasons,
1 2 deny the motion; order a continuance to enable affidavits to be obtained, depositions to be taken, or other discovery to issue any other just order.

it cannot present facts essential to justify its opposition, the court may:

be undertaken; or 3 7

Affidavits Submitted in Bad Faith. If satisfied that an affidavit under this rule is submitted in bad faith or solely

for delay, the court must order the submitting party to pay the other party the reasonable expenses, including attorney's fees, it incurred as a result. An offending party or attorney may also be held in contempt. Changes A B C No genuine issue No genuine dispute See: Celotex EC: If you try to make rules clear, anything they say will be seized by judges and lawyers. Changes to 56 are about procedure of summary judgment, not the standard, not the burden. However, theres a lot in there thats not in the rule now. D Examples 1 Cross v. United States (336 F.2d 431) (1964) i Summary judgment is particularly inappropriate where inferences which parties seek to have drawn deal with questions of motive, intent, and subjective feelings and reactions. ii Judge may not, on motion for summary judgment, draw fact inferences. iii While ordinarily bare allegations of pleading, unsupported by specific evidentiary data, will not alone defeat motion for summary judgment, this principle does not justify summary relief where disputed questions of fact turn exclusively on credibility of movants' witnesses. 2 Adickes v. S.H. Kress & Co. (398 US 144) (1970) i Summary judgment for defendant store owner in civil rights action by plaintiff was improper where defendant's showing did not foreclose possibility that there was policeman in store while plaintiff was awaiting service and that this policeman reached understanding with some employee that plaintiff not be served. ii Defendant moving for summary judgment had burden of showing absence of genuine issue as to any material fact, and material it lodged must be viewed in light most favorable to opposing party.

II

Civil Procedure Professor Edward Cooper iii On summary judgment, inferences to be drawn from underlying facts contained in moving party's materials must be viewed in light most favorable to party opposing motion. iv Amendment in 1963 to summary judgment rule was intended to overturn line of cases holding that party opposing summary judgment may successfully create dispute as to material fact asserted in affidavit by moving party simply by relying on contrary allegation in well-pleaded complaint 3 Celotex Corporation v. Catrett (477 US 317)(1973) i Summary judgment is mandated, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish that existence of an element essential to that party's case and on which that party will bear the burden of proof at trial. ii Where party will have burden of proof on an element essential to its case at trial and does not make a showing sufficient to establish the existence of that element, there can be no genuine issue as to any material fact since a complete failure of proof concerning an essential element of the nonmovant's case necessarily renders all other facts immaterial. iii There is no express or implied requirement in Rule 56 that the moving party support its motion with affidavits or other similar materials negating the opponent's claim. iv Where nonmoving party will bear burden of proof at trial on a dispositive issue, summary judgment motion may properly be made in reliance solely on the pleadings, depositions, answers to interrogatories, and admissions on file and such a motion, whether or not accompanied by affidavits, will be made and supported as provided in this rule so that the nonmoving party must go beyond the pleadings to show that there is a genuine issue for trial. v Nonmoving party need not produce evidence in a form that would be admissible in order to avoid summary judgment vi Last two sentences of Rule 56(e) precluding a nonmoving party from resting on its pleadings to avoid summary judgment 4 Anderson v. Liberty Lobby (477 US 242) (1986) i Substantive law will identify which facts are material for purposes of summary judgment, as only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment; factual disputes that are irrelevant or unnecessary will not be counted ii There is no issue for trial unless there is sufficient evidence favoring the nonmoving party for jury to return a verdict for that party; if the evidence is merely colorable or is not significantly probative, summary judgment may be granted iii Standard for granting summary judgment mirrors the standard for a directed verdict which is that the trial judge must direct a verdict if, under the governing law, there can be but one reasonable conclusion as to the verdict. iv If defendant in a run-of-the-mill civil case moves for summary judgment or for directed verdict based on the lack of proof of a material fact, the judge must ask himself, not whether he thinks the evidence unmistakably favors one side or the other, but whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented.

Civil Procedure Professor Edward Cooper v When ruling on a defendant's motion for summary judgment or a directed verdict in favor of plaintiff, mere existence of a scintilla of evidence in support of the plaintiff's position will not be sufficient; there must be evidence on which the jury could reasonably find for the plaintiff. 5 Matsushita v. Zenith (475 U.S. 574) (1986) i To survive a motion for summary judgment or for a directed verdict, a plaintiff seeking damages for a violation of 1 of the Sherman Act must present evidence that tends to exclude the possibility that the alleged conspirators acted independently. III Procedure A Timing 1 Unless a different time is set by local rule or the court orders otherwise, a party may file a motion for summary judgment at any time until 30 days after the close of all discovery. 2 Typically motions are not made until each side has had a chance to engage in discovery B SJ may be granted without motion as long as opposing party is not taken by surprise and has an opportunity to show why it shouldnt be granted. C Means to Supporting or Challenging Motion 1 The most common means are: i Affidavits ii Formal responses to discovery a b c Depositions Interrogatories Admissions

2 Living testimony almost never happens in SJ. If it does occur, you treat the witness as an affidavit by asking them to state clearly their testimony and reading their conclusions. 3 Only evidence admissible under the rules of evidence will be considered. i The form in which the information is presented may not be admissible. ii Adickes: Hearsay statement in deposition not proper support for SJ iii Any defect in the material submitted must be objected to or the court may consider the material iv If objection raised, court will still consider non-defective parts D Findings: Do judges have to state findings or conclusions in SJ partial findings? 1 Rules v. app ct requirement i Under old Rules, judges arent required to write down findings in SJ cases. New Rule 56(a) now says is required. a Rule 52(a)(3): The court is not required to state findings or conclusions when ruling on a motion under Rule 12 or 56 or, unless these rules provide otherwise, on any other motion. ii But, apps ct frequently request judges to write rationale for grant/denial in order for app cts to not have to do the work again. Here the Rules arent consistent w/ practice. New Rule 56(a) now says is required. 2 Exception for judgment on partial findings (???) I think post Dec. 1, 2010 Rule 56, this no longer matters.

Civil Procedure Professor Edward Cooper i Rule 52(c): If a party has been fully heard on an issue during a nonjury trial and the court finds against the party on that issue, the court may enter judgment against the party on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue. The court may, however, decline to render any judgment until the close of the evidence. A judgment on partial findings must be supported by findings of fact and conclusions of law as required by Rule 52(a). ii Rationale: Judge must give reasons of fact and law bc it affects other parts of the claim. Ex. If you grant SJ on a claim, it may prevent another claim from being proved since the first was unfavorable. 3 Rationale for having judge write down findings of fact/law on particular findings i App ct can see what went on ii Parties can see that TJ did the work a Res Judicata: another reason why we want judges in non jury cases to write it down to make it uniform across similar cases (bench trial is precedent, jury trial isnt. So, res judicata only comes in with judge making decision). IV Standard A SJ standard is the DV standard. Liberty Lobby, Celotex. 1 If the judge would have to direct a verdict at trial, he should enter SJ. 2 Primary issue: Does a material issue of fact exists for which a trial is needed? i A material fact is one which will affect the outcome of the case, and a material fact raises genuine issue if a reasonable jury could reach different conclusions concerning that fact. 3 Criticism of the view that SJ and DV standard is the same. i SJ is easier a SJ is easier bc youre skipping the trial. Once the trial has begun, Judges often find it is easier to continue the trial, so harder to get DV. b SJ and DV do not have the same evidence rules. In SJ, a nonmoving party need not produce evidence in a form that would be admissible at trial in order to avoid SJ. Celotex. ii DV is easier a In SJ, you have to show the party lacks sufficient evidence, but under DV you dont have to do anything- you can just say motion for DV. b More deference to TJ in DV and less in SJ. It is often moot to appeal a denial of SJ, bc it just goes to trial. It is only not moot when everything is exactly the same at trial. Almost all the appeals is when SJ is granted, bc the case is just closed. B Judge discretion 1 Rule 56(c) states that the court shall grant summary judgment 2 No judge discretion to grant SJ i Hypo: Judge denies SJ even though there appears no genuine issue. Cant appeal the SJ denial. At trial, the nonmoving party makes out a sufficient case and wins the jury verdict. Moving party appeals conceding they couldnt get JMOL, but asks for a reverse of SJ. a We do not review the pretrial SJ, bc we should be glad the judge denied SJ. The moving party is not entitled to a judgment. The trial record prevails.

Civil Procedure Professor Edward Cooper C Facts 1 Evidence will be construed in the light most favorable to the non-moving party (AND unfavorable evidence that the jury must believe). V Witness Credibility A Cts typically grant SJ when non-moving partys only argument to go to trial is credibility. Cant just claim a credibility issue. Must present direct counter evidence. B SJ should only be defeated on credibility if non-moving party casts doubt on the credibility of the ppl who made the moving partys affidavits. Ex. Witness would profit from an outcome in favor of moving party. VI Fact inferences A Inferences and conclusions should be resolved in favor of non-moving party Matsushita, Adickes. 1 Inference drawing is a jury function 2 Fact inference is bound up with credibility. Credibility is a jury function. Whom you believe affects what inferences you draw. 3 Cross v United States (2d Cir. 1964): A judge may not, on a motion of SJ, draw fact inferences. Such inferences may be drawn only on a trial. i Cooper criticizes this as going too far. Prefers Adickes standard. 4 Adickes v S.H. Kress & Co (1970) On SJ, the inferences to be drawn from the underlying facts contained in the moving partys materials must be viewed in the light most favorable to the party opposing the motion. B If evidence raises competing inferences, the judge may grant SJ if one of the inferences is more plausible than the other. 1 Matsushita Electric Industrial Co. v Zenith Radio Corp. (1986): Ps alleged Ds conspired to fix prices in an effort to monopolize the American market. D submitted motion for SJ. History: TC granted D SJ. 3rd circuit reversed, arguing that certain direct evidence of a concert of action among Ds created a genuine issue for trial. SC reversed and granted SJ. Rule: The evidence should be viewed in the light most favorable to the non-moving party. If two competing inferences arise, Judge can determine if one inference is more plausible than other in ruling on SJ. Similarly, SJ shouldnt be granted if competing inferences are equally plausible. Holding: 1) Direct evidence contradicting SJ had little relevance to the a lleged predatory pricing conspiracy. 2) Ct failed to consider the absence of a plausible motive to engage in predatory pricing. The absence of motive is relevant to whether a genuine issue for trial exists bc it limits the range of permissible conclusions from ambiguous evidence. Lack of motive allowed reasonable inference that there was no conspiracy. VII Law Application A B In SJ, the standard is by a preponderance of the evidence for most cases. However, Ct should take into account heightened standards if they apply to the jury. 1 Anderson v Liberty Lobby, Inc. (1986): P sued D for libel. P had to provide clear and convincing evidence Ds acted w actual malice, reckless disregard (higher evidentiary standard). D moved for SJ. Rule: Whether a given factual dispute requires submission to a jury must be guided by the substantive evidentiary standards that apply to the case. SJ standard in this case is whether the evidence in the record

Civil Procedure Professor Edward Cooper could support a reasonable jury finding either that the P has shown actual malice by clear and convincing evidence. VIII Process Burden at Trial Moving Must establish all elements of claim No Burden Show movant has insufficient evidence to carry burden, negate essential element of the claim, or affirmative defense Non-moving Produce evidence or point to Minimal. To defeat SJ, requires more than just a

evidence to show genuine issue credibility claim. Must have evidence or reason. A General Process Burden 1 Moving party has the burden of presenting information that there is no genuine issue regardless of how the burden of persuasion is allocated at trial. i Celotex: Initial burden includes informing the ct of the basis of its motion and identifying the pleadings, depositions, answers to interrogatories, and admissions on file, together w the affidavits, if any, believed to show absence of a genuine issue of material fact. 2 If moving party shows that no factual dispute exists, non-moving party must show that there is a genuine issue of fact i Ex. If non-movant produces contradictory evidence showing a factual dispute, SJ will be denied ii SJ denied if evidence offered by movant doesnt show absence of genuine issue a

Adickes v S.H. Kress & Co (1970): P, white teacher, brought black students to Ds restaurant.
Children were served, but P was refused since she was a white person w blacks. P was arrested for vagrancy. P sued D for damages, denial of her civil rights, and conspiracy btw D and police to violate EP. P claimed a police officer had seen P and her group before denied service, and so a jury could infer that there was a set up. Ds Argument: D moved for SJ and submitted affidavits from manager, chief of police, and arresting officers denying the existence of a pre-arranged scheme. History: TC barred Ps affidavits as hearsay and ruled P had failed to allege any fact from which a conspiracy might be inferred. Ct of Apps affirmed. SC reversed. Rule: Where the evidentiary matter in support of the motion does not show absence of a genuine issue, SJ must be denied even if no opposing evidentiary matter is presented. Application: D failed to fulfill its initial burden of demonstrating what is a critical element in this case there was no policeman in the store. As a result, P isnt required to come forward w suitable opposing affidavits. To remedy this situation, D could have met this burden by, for ex., submitting affidavits from policemen that they werent there at the time. In response, P then could provide an affidavit of someone who saw the policeman in the store or filed an affidavit under Rule 56(f) that it was impractical at this time to do so.

When moving party does not have the trial burden

Civil Procedure Professor Edward Cooper 1 Moving Partys duties i Moving party must show: a b That the other party does not have sufficient evidence to carry out his burden of proof, or The non-existence of a required element of the non-moving partys claim.

ii Moving party need not negate the claim; only required to show there is lack of evidence in support of the non-moving partys claim. Celotex. 2 Nonmoving Partys duties i The nonmoving party does not need to show there is an issue of fact unless the moving party produces info showing no dispute exists. Adickes. ii Nonmoving party must go beyond pleadings and use affidavits, depositions, answers to interrogatories, or admissions to argue there is a genuine issue. Celotex. iii Nonmoving party need not meet burden of production/persuasion, bc they could be waiting for discovery. Basically, the S. Ct. is saying it is okay for you to start a lawsuit expecting to build a case through discovery. a Rule 11(b)(3): By presenting to the court a pleading, written motion, or other paper whether by signing, filing, submitting, or later advocating it an attorney or unrepresented party certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances: the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and 3 Rationale for putting the burden on moving party i Lingering distrust for SJ due to the belief that trial is better. ii SJ could be a cheap substitute for discovery, since you can coerce the other side to reveal case to disprove allegation of no dispute. Its greasing the wheels for discovery. iii SJ can be and is used to add up cost and delay for a party. 4 Hypo: i Moving party (D) provides a witness that says the light is green. Is that enough to require the other party to show evidence? Yes. If the nonmoving party (P) provides nothing, then they lose. ii P responds w an affidavit that the light was red. No SJ. 5 Celotex Corp. v Catrett (1986): P alleged that husbands death was bc of exposure to Ds products w asbestos. D moved for SJ, arguing P failed to identify witnesses who could testify about Ds exposure to asbestos. P produced a transcript of a decedents deposition, an employers letter who was to be called a trial witness, and insurance cos letter to Ps attorney to show decedent had been exposed to asbestos. Rule: Movant doesnt have to affirmatively disprove or negate the claim (although may), but only show that the opposing party has no evidence to prove it. C When moving party has the trial burden 1 Moving Partys duties i SJ is granted when the movant establishes all the elements.

Civil Procedure Professor Edward Cooper a Moving party can provide an affidavit of a must-believe witness and overwhelming evidence (Lundeen). SJ is appropriate when no positive showing that witness testimony could be impeached. 2 Nonmoving Partys duties i The non-movant respond w something more than a claim of witness credibility to defeat SJ claim. Nonmovant must have evidence/reason why movants witnesses cant be believed, mere allegation on witness credibility is not enough to preclude SJ. ii Nonmoving party can argue that SJ is inappropriate bc it requires inferences from questions of motive, intent, and subjective feelings and reactions, which must come out in trial. Cross. iii What if the nonmoving party contests their inability to cross-examine? In Lundeen, the ct responds by arguing the nonmoving party could take depositions and the same tricks you would use in trial, will probably have the same effect. The witness in Lundeen was found so great, that the ct doubted theyd find anything new. 3 How much do you leave to the jury depends on what law is to be applied i Ex. reasonable behavior in driving or other negligence issues may be left to a jury, so are unsuitable for SJ. Reasonable behavior for a public official may be given to the judge to protect the public interest. 4 SJ is inappropriate where inferences which the parties seek to have drawn deal w questions of motive, intent, and subjective feelings and reactions. i The only way to counter an affidavit on intent is to subject the affiant to cross-examination at trial. The jury may disbelieve him bc he is an interested witness. ii Cross v United States (2d Cir. 1964): P was a professor of romance language. He went abroad and claims his all his trip expenses are tax deductible as part of his work. Rule: SJ is particularly inappropriate where the inference which the parties seek to have drawn deal w questions of motive, intent and subjective feelings and reactions. A judge may not, on a motion for SJ , draw fact inferences. Such inferences may be drawn only on a trial. Application: While there is no dispute that P is a teacher of languages and that he traveled abroad, many of the facts remain largely w/in his own knowledge and the gov should have the opportunity to test his credibility on cross-examination. 5 Must-believe witness (disinterested, consistent, uncontradicted affidavits) may justify granting SJ i Lundeen v Cordner (8th Cir. 1966): P was married to X, w kids. Xs insurance had kids as beneficiaries. P later divorced X and X remarried D. X died. D argued that though her name wasnt on the policy she should recover bc X meant to have her. Ct granted SJ to D. D has burden of production and persuasion. D provided an affidavit from Burks, another employee, which stated he helped X complete forms and received a letter stating the designation seemed acceptable. Ct affirms SJ. Ps Argument: Case should go to trial to consider demeanor and cross-examine Burk, Ds witness. Rule: If there is no indication that the witness is biased, dishonest, mistaken, unaware or unsure of the facts, refusing SJ solely to cross-examine witnesses is no good. Ct refuses: No obvious advantage to be gained from a cross-examination. Burks is unbiased, competent in regard to his mental capacity and ability to observe facts related in his affidavits, participation in the change is part of his regular duties, and the affidavits are positive, internally consistent, unequivocal,

Civil Procedure Professor Edward Cooper and in full accord w the documentary exhibits. Plus, Burks would likely not show bc hes in Singapore and so all they would get is a deposition, which they can currently get. ii Rests on the assumption that affiant will testify at trial the same way he did in his affidavit. Assumption is questionable bc 1) affidavits are prepared by lawyers and 2) cross-examination is done by rough treatment by cross-examiner and under scrutiny of judge and jury; both are not present in affidavits or depositions. 6 Self-serving, self-contradicting affidavits will not defeat motion for SJ, i.e. you will lose if self-serving. i Test: Is there is a satisfactory explanation? Ex. The question was ambiguously framed. a Lot of cases say trial judge has discretion to not consider self-contradicting and self-serving affidavits b The other party though may use the contradiction to impeach the witness. D testifies at his deposition, I went through a red light and then corrects himself, saying the light was green. Judge will likely believe this is a true mistake. b D testifies at his deposition, I went through a red light. P moves for SJ. D then turns in an affidavit it was a green light. The affidavit is self-contradicting and self-serving. 7 In qualified immunity cases, ct adopts the plaintiffs facts i Scott v Harris (2007): P was forced off the road by D, a police officer, in a chase, suffering severe personal injuries. P sued for excessive force in violation of 14 th. D moved for SJ on basis of qualified immunity. TC and Ct of Apps 11th denied SJ. S. Ct reverses bc a reasonable person would find Ps story fiction. D is entitled to SJ. Rule: In SJ, ct is to view the facts and draw reasonable inferences in the light most favorable to the party opposing SJ motion. In qualified immunity cases, this usually means adopting Ps version of the facts. Matsushita Rule: Where the record taken as a whole could not lead a rational trier of fact to find for the moving party, there is no genuine issue for trial. Application: A video tape contradicts Ps account of the facts, since it resembles a dangerous police chase endangering the public. If a partys story is blatantly contradicted by the record, so that no reasonable person would believe it, the ct should not adopt that version of the facts for ruling on a motion for SJ. IX Partial Summary Judgment A Judge can enter SJ for some issues but not others. May enter an order stating any material fact including an item of damages or other relief that is not genuinely in dispute and treating the fact as established in the case. (Rule 56(g)). X Review of SJ A SJ is a matter of law, so Appeals Ct reviews it de novo. 1 Granting of SJ is appealable bc then case is done. 2 Denial of SJ is not generally immediately appealable bc not a final judgment and it is less important for a party to get an appeal since there will be a trial. ii Hypo: a

Civil Procedure Professor Edward Cooper i Exception: Officials with immunity can appeal denial of SJ but only on question of law, i.e. whether on those facts the law establishes official immunity. XI Other Notes on SJ A Well-settled that court has the authority to grant summary judgment sua sponte, according to Matthew Bender. B Summary judgment in favor of a party is appropriate when judgment as a matter of law would have been granted to that party at trial under Rule 50 C Only after the court determines that the party moving for summary judgment is entitled to judgment as a matter of law should it proceed to the question of whether any genuine issue of material fact exists. If this latter question is answered in the negative, only then is summary judgment appropriate.

NEW TRIALS
Rule 59. New Trial; Altering or Amending a Judgment 1

In General.
1

Grounds for New Trial. The court may, on motion, grant a new trial on all or some of the issues and
1 after a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in after a nonjury trial, for any reason for which a rehearing has heretofore been granted in a suit in

to any party as follows: federal court; or 2 equity in federal court. 2

Further Action After a Nonjury Trial. After a nonjury trial, the court may, on motion for a new trial,

open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new ones, and direct the entry of a new judgment. 2

Time to File a Motion for a New Trial. A motion for a new trial must be filed no later than 28 days after the Time to Serve Affidavits. When a motion for a new trial is based on affidavits, they must be filed with the New Trial on the Court's Initiative or for Reasons Not in the Motion. No later than 28 days after the entry of

entry of judgment. 3 motion. The opposing party has 14 days after being served to file opposing affidavits. 4 judgment, the court, on its own, may order a new trial for any reason that would justify granting one on a party's motion. After giving the parties notice and an opportunity to be heard, the court may grant a timely motion for a new trial for a reason not stated in the motion. In either event, the court must specify the reasons in its order. 5

Motion to Alter or Amend a Judgment. A motion to alter or amend a judgment must be filed no later than 28
Rationale 1 Self-correction device when the TJ expects to be reversed 2 Reduces delay and expense of appeal i There is a risk though that the TJ is wrong and the app ct would not reverse. 3 Allows a new trial to proceed when witnesses are available 4 Provides a better record, since it is another attempt at a just & appropriate result.

days after the entry of the judgment. A

Civil Procedure Professor Edward Cooper 5 No violation of 7th rights bc sent back to jury. 6 TJ is the best person to make this decision. i TJ is present during proceedings and is in a good position to evaluate prejudicial effect of any incidents. reverse if verdict is contrary to the evidence. iii TJ is not given too much power, not too much of an intrusion on juries. iv It is a protection greater than the DV standard, bc it is more lenient. B Cautions 1 New trials are costly 2 A fair result still may not be achieved in new trial (not scientific process here) 3 To order new trials repeatedly could be an intrusion on the right to a jury trial. The right to jury trial would be meaningless if verdicts could only stand if the judge would reach the same result. II Range of the Trial Courts Discretion A Three types of errors 1 Errors that would result in reversal if the case were to be appealed. i These errors demand remedial measures at the trial level. Theoretically, TC has discretion for these errors. Rationale: Aggrieved litigant may not want to appeal, bc it costs too much or the cost is not worth it. In many jurisdictions, a grant of new trial, not being a final judgment, cannot be appealed. In determining what constitutes a reversible error on appeal, app ct is affected by TJs ruling on the motion of new trial. TJ may grant a new trial 3 Errors that did not significantly affect the outcome. i B Harmless errors and thus, it would be an abuse of discretion for the TC to base a new trial on them. Generally: 1 Permissible grounds include: a verdict by the jury is against the weight of the evidence; a verdict by the jury is either inadequate or excessive; newly discovered evidence would probably have changed the result of the action; prejudicial error has been committed at some point during the trial. C Does the judge have to give a reason for granting a new trial? 1 Ginsberg v Williams (270 Minn. 474)( 1965): i Statute does not authorize granting of a new trial solely in the interest of justice. ii Grounds for new trial as enumerated in rule relating thereto are exclusive. iii To permit granting a new trial in the interests of justice would invite an arbitrary exercise of power over which appellate review is not now available 2 Compare Ginsberg with Coppo v Van Wieringen (36 Wash.2d 120) (1950): 2 Errors that may have had an impact on the verdict, but do not justify reversal of case on appeal. i ii Practically, TC has almost unlimited power to grant new trials, bc scope of review is narrowed. a ii Judges trained to be the 13th juror and have better grasp of law than jurors. Marsh holds judge can

Civil Procedure Professor Edward Cooper i Trial judge has right to grant a new trial when he is convinced that substantial justice has not been done, on the theory that it is an exercise of trial court's inherent power. D Appeal 1 Standard: App ct uses abuse of discretion standard to review a grant or denial of new trial motion. The ct of apps generosity to the judge depends on if it is denied (less latitude) or granted (more latitude) i Reversals of new-trial rulings occur only when app ct finds TJ was wrong as a matter of law on reasons supporting grant or denial of motion. 2 If New Trial is denied i Magnani v. Trogi (70 Ill.App.2d 216) (1966) a Purpose of vesting trial judge with power to grant new trial is to permit him, before losing jurisdiction of case, to correct errors that he or jury might have made during course of trial. b Greater latitude is allowed trial court in granting new trial than in denying new trial. ii The power to reverse denials of new trials on the ground that the verdict was excessive or to condition affirmance upon a remitter is now asserted by most cts of appeal. iii If new trial is denied, it is still hard to get it reversed on appeal bc of abuse of discretion std. a Three types of review: i Denial of new trial motion will be reversed (i.e. new trial ordered) only if party would have been entitled to JMOL had proper procedure been followed. ii 5th circuit: Denial of new trial motion will be reversed (i.e. new trial ordered) only if there is no evidence to support the verdict. a b Even if party had been entitled to JNOV, denial of new trial may be affirmed Cooper: harsh rule is to encourage parties to follow proper JNOV procedure, saving app ct from considering issue in the first place. iii In some case, ct of app finds abuse of discretion even if verdict loser would have not been entitled to JNOV had he properly requested. 3 If New Trial is granted i Prejudicial misconduct or error of law review: Enormous deference is given to a TJ, at least when basis for new trial is some form of prejudicial misconduct or error of law, on theory that judge was present during proceedings and thus is in best position to evaluate prejudicial effect of what occurred. ii Weight of the evidence review: Some non-SC cts have questioned the traditional narrow review standard, at least when the TJs decision is based on an evaluation of the weight of the evidence. a

Dyer v Hastings (Ohio 1950):

Rule: No judgment may be vacated or set aside and a new trial granted upon the ground that the verdict is against the weight of the evidence except as a matter of law or when the verdict is supported by competent, substantial, and apparently credible evidence which goes to all the essential elements of the case. Rationale: Ct is not to judge credibility of evidence, only whether it has the semblance of credibility. The sole function of the jury is to determine the credibility of the evidence. If verdict can be backed up by competent, substantial and apparently credible evidence, then no new trial.

Civil Procedure Professor Edward Cooper iii Difficult to appeal grant of new trial: a Parties generally cannot appeal a new trial order, until after new trial has concluded, due to the interlocutory appeal requirement. Some cts allow a grant of a new trial to be appealed immediately. b If second trial is completely free from prejudicial error, then appealing party is in awkward position of seeking to overturn what appears to be fair verdict simply bc 2 nd trial wasnt necessary bc the first was free from error. The issue may be moot, bc trial could have changed. III Incoherent Jury Verdicts A Ct of app extends substantial discretion to TCs decisions through clear abuse of discretion standard 1 Magnani v Trogi (Ill. Ct. App. 1966): P had two separate causes of action: wrongful death and reimbursement for medical and funeral expenses. Jury gave (and parties failed to request otherwise) a single verdict, so unclear how much $ was for each claim. Important bc they have to apportion btw widow and son. P is willing to apportion it w her son. D requested new trial and TJ granted. Ct found it was not abuse of discretion for TJ to grant new trial, since issue was not known until too late to reconvene jury and ask them. Dissent says D didnt object to verdict form at conference or at any time prior to end of trial and P did not have an issue with dividing on their own. Issue: Did the TJ abuse his discretion in granting a new trial? Rule: App ct will not disturb the decision of a TC on a motion for new trial unless a clear abuse of discretion is affirmatively shown. Rationale: TC can consider conduct of trial as a whole, and therefore is in superior position to consider effects of errors, fairness of trial to all parties, and whether substantial justice was accomplished. B Judge should mold verdicts when jurys intent is clear. If ambiguous, ct should not sub its verdict. 1 Robb v John C Hickey, Inc. (19 N,J.Misc. 455) (1941): i Jury was instructed that if contrib. neg. by P had been established, comparative negligence was immaterial. Jury returned verdict saying both negligent, but D was more than P, so P should get $2000. ii Appeal: Both parties are dissatisfied w verdict. P moved to set aside verdict, bc ambiguous, inconsistent, inadequate, and contrary to jury instruction. D moved for ct to mold verdict into one in favor of D and against P, urging verdict was informal and jury clearly intended to find for D. iii Rule: Ct may, in fact should, mold an informal verdict to render it formal, effective and to coincide w the substance of verdict as agreed upon and intended by jury, but power is only exercised where real purpose and intent of jury clearly, sufficiently and convincingly appears. Where verdict is uncertain or ambiguous, it cannot be molded. Ct will not substitute its verdict in place thereof. iv Holding: Verdict here is uncertain & ambiguous. It is self-contradictory, inconsistent, and ambiguous. To find for D or grant P $2000 would render some of the verdict surplusage. So, the ct grants new trial. C What if jury finds for P, but assesses damages at 0, even though it is clear P is badly hurt? 1 Some cts find judge can enter judgment on the verdict. Others find such a verdict cannot stand. D If too difficult to reach untainted verdict, new trial is only safe choice 1 Kramer v Kister (187 Pa. 227)(1898): Jury agreed to a sealed verdict and separated. Next day, sealed verdict opened to find a juror dissented. Jury reconvened and returned shortly w same verdict.

Civil Procedure Professor Edward Cooper Rule: When it is too difficult to receive a verdict that is not too tainted, only safe choice is to declare mistrial and discharge the jury. Rationale: At CL jury was kept together from time they were sworn. Is no longer custom to keep together and secluded during trial, though judges can choose to do so when public excitement or other reasons. Juror changing mind could be bc he was coerced to do so or had access to illegally acquired info. IV New Trial Because Verdict is Against Weight of Evidence A Judge discretion 1 Judge can grant new trial if he believes the verdict is: i Against the clear weight of the evidence ii Based upon false evidence iii Will result in a miscarriage of justice. 2 Aetna Casualty & Surety Co. v Yeatts (122 F.2d 350)(1941): i Under federal rule, it is the duty of district judge on motion therefor to set aside verdict and grant a new trial, if judge is of opinion that verdict is against the clear weight of the evidence, or is based upon evidence which is false, or will result in a miscarriage of justice, even though there may be substantial evidence which would prevent the direction of a verdict. ii The exercise of district court's power to set aside jury's verdict and grant a new trial under federal rule providing therefor is not in derogation of the right of trial by jury. iii Verdict can be directed by District Court only where there is no substantial evidence to support recovery by the party against whom verdict is directed, or where the evidence is all against such party or so overwhelmingly so as to leave no room for doubt what the fact is. B Judges Power New Trials vs. JMOL JMOL

New Trial

TJ may set aside verdict supported TJ cannot direct verdict against party w by substantial evidence, where in substantial evidence in support, even if he his opinion it is against clear weight doesnt believe partys evidence or thinks it of the evidence, or is based on false weighs in favor of the other. This is bc of Cs evidence. (Aetna) guarantee of jury trial and the jurys role of weighing evidence and credibility. (Aetna) TJ may grant new trial if he believes No authority is given to TJ to grant directed verdict will result in miscarriage of justice. TJ may consider credibility. Can in some of the witnesses. (Dyer) verdict on grounds it could cause a miscarriage of justice. TJ must disregard views on witness credibility, must assume jurors would view all evidence as favorable to the nonmovant. (Dyer)

base action on his belief or disbelief demeanor, or whether he believes testimony. TJ

Civil Procedure Professor Edward Cooper TJ can give new trial sua sponte. So, JMOL requires the party to follow strict if party doesnt follow procedure, ct procedure. can give this. Rationale: Can be seen as DV procedural safety-net (e.g. if party forgets/incorrectly asks for JMOL). Gives parties and jury 2d chance to get it right, allows parties to fill gaps in the evidence. See R50. V TJ can grant new trial, even if trial was free of errors other than lack of evidence A Marsh v Illinois Cent. R. Co. (175 F.2d 498) (1949): 1 The common law power of trial judge to grant a new trial in his discretion, irrespective of error and merely because he does not think the verdict is right, is fully preserved by constitutional provision that no fact tried by jury shall be otherwise re-examined in court of United States than by rules of common law. 2 A motion for new trial is addressed to trial judge's discretion and he may grant new trial if he thinks he has committed error or because he thinks verdict is wrong, though supported by some evidence, and exercise of his discretion is not ordinarily reviewable on appeal, though failure to exercise discretion, or abuse of it, may be corrected. 3 A motion for new trial is entirely independent of a motion for directed verdict or for judgment notwithstanding the verdict and is governed by different principles, and has a different result in that it results in another jury trial, while motion for directed verdict or for judgment notwithstanding verdict, if granted, ends the case. 4 Rule: JNOV should not be granted against party if there is evidence a jury could find for that party, despite overwhelming evidence in favor of other side. TJ can grant a new trial, though the trial was free of errors other than lack of evidence. VI Partial New Trials A Rationale 1 Avoids some expense of full new trial. 2 In ordering partial new trial, judge must be careful to ensure that issues are separable so that second judgment will not be tainted by errors in first judgment. 3 Mostly granted when issues relate solely to damages, such that partial new trial considers only q of damages If TJ denies new trial where there are excessive damages, this can be reversed. Denying new trial where inadequate damages may be abuse of discretion. B What are Partial Trials Generally Used For? 1 Damages i Partial new trials are most commonly used when tainted issues relate solely to damages. ii Appropriate/inappropriate partial trial for damages

Civil Procedure Professor Edward Cooper a Appropriate, if: i Error appears to be result of an incorrect instruction. ii Liability was clearly and properly decided b Not Appropriate i When J determines that amount awarded is legally insufficient bc too small. Could be result of compromised verdict, so there should be full new trial. iii Difficulties in determining damages a Damages come in a range of degrees of clarity. i Clear ex: Damages are the loan that is unpaid or price of widgets. ii Unclear ex: Personal injury claims, business dilution. b c How much confidence do you need to put a dollar value on damages? What is role of TJ, when jury has initial responsibility of assessing damages and TJ only has responsibility of awarding new trial. d TJ has a better sense of an ordinary award in similar cases. TJ may have a better idea of the difficulty of determining value of damages. Hypo: MS sheriff wrongly imprisons group of Ps. Ps assert a variety of damages. Jury finds for Ps and gives them $500 each. TJ finds this is suitable. Ct of App agrees. Perhaps bc this was a lot for D to handle at that time or it would be difficult to further individualize damages. iv Appellate review for grant/denial of new trial based on damages a App review is limited to abuse of discretion when (1) it reviews a TJ denial of new trial bc verdict was excessive or (2) reviews a TJ grant of new trial bc verdict is too small. 2 Liability i No partial new trials on issue of liability, since jurors decision about damages and liability are intertwined. ii Doutre v Niec (Mich. Ct. App. 1965): P injured at Ds beauty shop. At trial, Ds not allowed to testify on standard of care observed by beauty shops. Jury found for P and awarded $10,000 damages. D motioned for new trial. Ct granted it but limited it to liability. P and D appeal. New trial only on liability is wrong. Rule: Liability and damages are so closely intertwined that they may not usually be separated. Justice requires jury considering liability to also consider damages. Exception is when liability is clear, thus not requiring a retrial of damages. Limited new trials are not favored. iii Hutton v Fisher (3rd Cir. 1966): Dissenting judge states that as matter of practical justice the damage verdict should not be permitted to stand where the question of liability is to be retried. Power to grant partial new trial should be exercised w caution. C Remittitur and Additur 1 In remitter and additur, a new trial, if elected, may be on damages alone or liability and damages.

Should app ct defer to TJ? App ct may have better perspective across many cases, than a single TJ.

Civil Procedure Professor Edward Cooper 2 Remittitur: An order denying Ds application for new trial on condition that P consent to a specified reduction in the jurys award. Ex: P sues and wins $25,000 damages. D moves for new trial on damages being excessive. Judge agrees and asks P to decrease to 15,000, otherwise new trial granted. i Acceptance: Remittitur is accepted by SC and majority. SC requires that P be given option for new trial. decision on damages. iii Three ways judges can decide decreased damage amount a Maximum: Fed cts and most cts hold that damages should be decreased to max reasonable amount a jury would choose, bc jury meant to go high and that would preserve jurys role. i Gives P incentive to take the reduced amount bc (1) judge will allow nothing higher anyway and (2) risks of trial may make reduced amount a good deal. ii Less intrusive to jury role iii Decrease likelihood of new trial. iv Powers v Allstate Insurance Co. (Wis. 1960): Ct overrules Heimlich, and its requirement that judges set damages at the lowest amount that a reasonable jury could have awarded. Instead adopts standard rule of allowing P option of avoiding new trial by remitting excess above an amount which court considers reasonable. Ct finds this will reduce likelihood Ps would refuse and elect new trial. b Minimum: Some cts held damages should be decreased to lowest reasonable amt. jury would award. i Jury has done something judge thinks is irrational. May be result of misbehaving jury. D entitled to rational jury. If judge denies D rational jury through remittitur, he should give max. protection. ii Need to protect D, bc P at least has protection through choice of a new trial iii If D thinks new figure is too high, he cant appeal (seems unfair). c Reasonable by the evidence: 5th circuit endorses this. Compares instant case to other cases to determine whats reasonable and adds 50%. 3 Additur: An order denying Ps application for a new trial on condition that D consent to a specified increase in the jurys award. Not allowed in Federal Courts. Some states courts allow it. i Acceptance: Additur is not widely approved, bc no CL equivalent. a Additur is prohibited in federal cts. Dimick v Schiedt: SC, 5-4, held we cannot have additur bc: i Remitter is in historical practice which makes it enough for 7 th, while additur is not in history. ii W remittitur, everything P gets has been approved by the jury. Remittitur just chops off extra. iii W additur, jury has not approved of damages, and the judge is making a jury decision. ii Pros: D agrees to the additur, so it better protects D (unlike remittitur). iii Fisch v Manger (N.J. 1957): Jury found for P w damages of $3,000. Judge found verdict inadequate and held that unless D agreed to increase damages to $7500, judge would grant new trial. D agreed, so the ct dismissed Ps motion for new trial. Rule: Remittitur is the denial of new trial if P reduces damages. Additur is the denial of new trial if D increases damages. Remittiturs have been recognized almost everywhere, while additurs have been ii Criticism: Giving P option to reduce doesnt adequately protect D, bc doesnt give him a jury to make

Civil Procedure Professor Edward Cooper outlawed. Ct finds remittitur and additur do not violate the constitution and, if fairly invoked, could serve laudable purpose of avoiding further trial when may attain substantial justice on basis of original text. Holding: Reverses w direction for a new trial on the issue of damages. a Dissent: additur violates right to jury (since no jury approved increased amount) and rule has no precedent in CL. Remittitur is fine, bc jury decided damages, thus fulfilling the right to jury, and ct is just cutting off unlawful excess. 4 Pros/Cons: i Pros: When problem or error involves size of the verdict, court can save substantial time and expense by ordering a conditional new trial. ii Cons: Difficult for parties to decide, since they might not get anything if they choose new trial. a Ex: P granted verdict of $1,000. Judge found verdict excessive, and held that unless P agreed to $150 damages, Judge will grant a new trial. P refuses. Verdict #2 grants P 50. Upheld on appeal. 5 Appeal: i Remittitur a b TJ given broad discretion TJ are more like juries than app judges are like juries i Trial judges more attuned to how juries behave and, themselves, become more like juries ii In damages cases, looks like order of deference is juries first, judges second, and appellate judges a distant third c 5th Circuit identified a two-step review process i Was TJ correct that any remittitur was proper? a Reviewed for abuse of discretion, but still a reasonably close review Great deference to TJs choice ii Then, review amount chosen a judgment iii Other party can only appeal remittitur or additur, on grounds that amount set is legally improper. Some cts have recognized winning partys right to cross-appeal if losing party first appeals. ii Most courts say that party who accepts remittitur or additur cannot appeal bc he agreed to the

Civil Procedure Professor Edward Cooper

Pleading
BACKGROUND CODE PLEADING
I Common Law pleading A B C Initiating a lawsuit began w a writ, which corresponded to a form of action. Substantive law governing the case was limited to the writ selected. Party would plead (multiple times if necessary) until issue was narrowed to just one issue of fact to be decided by jury. D Criticism: Possible to lose verdict bc of procedural misstep. Widely believed that pleadings were not useful for many cases. II Code Pleading A B Requires a plain and concise statement of facts constituting a cause of action. They traditionally serve four functions 1 Provide notice of the nature of a claim or defense 2 Identify baseless claims 3 Set each partys view of facts 4 Narrow issues. C New York Code 1 Abolished law and equity distinction. 2 Revised pleading to i Contain statement of facts in ordinary and concise language to enable a person of common understanding (not a lawyer!) to know what is intended. ii Contain demand of relief, including amount of damages that are monetary. iii Restrict pleadings to complaint, answer, reply and demurrers iv Allegations should be liberally construed, w a view to substantial justice btw the parties. v Disregard errors or defects in pleadings that do not affect substantial rights of adverse party. No judgment shall be reversed or affected by these errors or defects. D Party is required to set forth ultimate facts, free from evidentiary facts and conclusions of law. 1 BUT, no clear cut line btw different types of facts. 2 Ct could require a careful specification of the facts 3 Example of conclusions of the law being found insufficient i Gillispie v Goodyear Service Stores (258 N.C. 487 ) (1963): a Complaint alleging that defendants, without cause or just excuse and maliciously, trespassed upon premises occupied by plaintiff as a residence, assaulted her and caused her to be seized and confined as a prisoner, was insufficient to state cause of action in that complaint did not disclose what occurred, when it occurred, where it occurred, who did what, the relationships between defendants and plaintiff or of defendants inter se, or any other factual data that might identify occasion or describe circumstances of alleged wrongful conduct of defendants. Rule: P is required to

Civil Procedure Professor Edward Cooper make plain and concise statement of the facts constituting a cause of action. The com plaint must disclose the issuable facts and allege the material essential and ultimate facts upon which Ps right of action is based. Mere legal conclusions are not enough. b Rationale: Pleadings are to enable the opposing party to respond and the ct to declare the law upon the facts stated. c Application: Ps complaint is insufficient, bc it merely states conclusion assault and trespass rather than facts upon which legal conclusions may be based. Ps allegations do not disclose what, when, where, who did what, relationship, etc.

NOTICE PLEADING
I Introduction A Federal Rules of Civil Procedure 1 Congress passed Rules Enabling Act, authorizing S. Ct. to create rules of procedure. FRCP created in 1938. 2 Purpose of FRCP: i Rule 1: purpose of the rule is to secure the just, speedy, and inexpensive determination of every action and proceeding. ii Chief characteristics are common sense, simplicity, and flexibility of procedure. B Functions of Pleadings 1 Provides a way to win by default. If D doesnt respond, P wins by default. i Ex. Collection actions. D decides not to respond, bc he agrees that he owes that amount. 2 Bridge a communication gap, esp since law suits often are btw broken relationships. i This could in turn encourage settlement. 3 Sets a framework for discovery and thereby sets framework for trial. i Relevant evidence is determined by the action. ii Some actions go to trial wo discovery. Pleadings tell judge about the action and how to manage trial. 4 Establishes foundation. Pleadings provide starting point. i Ex. Res judicata case. Pleadings are sometimes best, or only, way to show that claim has already had a judgment on the merits for claim preclusion. ii For addition of other claims, D is required to make compulsory counterclaims. D doesnt know counterclaims until can determine whats in complaint. iii The matters in complaint show whether there is a right to jury trial. 5 Identifies the proper court (Rule 8(a)(1)) 6 Knowing what the action is about allows one to determine i Joinder of multiple parties in one action ii Identify whether there is a right to a jury trial iii Availability of interim remedies iv Whether complaint is barred by SOL. 7 Allows opportunity to tell story and get the judge on ones side.

Civil Procedure Professor Edward Cooper i Good lawyers do not simply notice plead, but use complaint as a tool to gain judges favor and attention. C Criticism of Pleadings 1 Criticism: Still doubtful how much fact pleading is required, consumes a lot of time and money, it has been replaced by interrogatories and discovery. II Rules A Types of Pleading Allowed a complaint; an answer to a complaint; an answer to a counterclaim designated as a counterclaim; an answer to a crossclaim; a third-party complaint; an answer to a third-party complaint; and if the court orders one, a reply to an answer. Rule 7 (a) Only these pleadings are allowed: 1 2 3 4 5 6 7 B

Requirements a short and plain statement of the grounds for the courts jurisdiction, unless the court already has a short and plain statement of the claim showing that the pleader is entitled to relief; and a demand for the relief sought, which may include relief in the alternative or different types of relief.

Rule 8(a) Claims for Relief A pleading that states a claim for relief must contain: 1 jurisdiction and the claim needs no new jurisdictional support; 2 3 C

Example of sufficient complaints 1 Form 11 Complaint for Negligence 1. (Statement of Jurisdiction See Form 7.) 2. On date, at place, the D negligently drove a motor vehicle against the P. 3. As a result, the P was physically injured, lost wages or income, suffered physical and mental pain, and incurred medical expenses of $_____. Therefore, the P demands judgment against the D for $_____, plus costs. 2 Form 12 Complaint for Negligence When the Plaintiff Does not Know Who Is Responsible: 1. (Statement of Jurisdiction See Form 7.) 2. On date, at place, D name or D name or both of them willfully or recklessly or negligently drove, or caused to be driven, a motor vehicle against the P. 3. As a result, the P was physically injured, lost wages or income, suffered mental and physical pain, and incurred medical expenses of $_____. Therefore the P demands judgment against one or both Ds for $_____, plus costs.

III Adequacy of Pleadings A Degree of detail required varies 1 Normally, pleader doesnt need to worry about alleging specific facts necessary to cover every element of substantive law.

Civil Procedure Professor Edward Cooper 2 Context-dependent: depends on how important something is to the claim i e.g., Contract of sale dispute will require less pleading of claim of title than a quiet title claim 3 The more esoteric the litigation, the more detail is required i In case of negligence, negligence actions are so common that D will know what hell need to do to prepare for litigation 4 The more time and effort a claim requires, the more detail will be required in the pleadings (i.e., the pleadings will serve as a gatekeeper) Twombly. i Ensures that discovery will be worth the expense 5 If underlying legal theory is distasteful or distrustful to judges because it is often misused, judges may require more detail to prevent such actions, e.g., RICO 6 Hypos i D pushed me off the cliff. He is liable: Doesnt state demand for relief sought ii Against the law to negligently injure. I want $1000: Doesnt state how plea der is entitled to relief. iii Discrimination Must show that its a Title VII action and that you want to be in fed ct. Rule 8(a)(1). B C Cts seem more lenient in interpreting pleadings prepared by pro se litigants . See Dioguardi. One can bring an action w little facts if currently do not have access to the necessary facts . 1 Rule 11(b)(3): Allows a party to plead factual contentions that have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery as long as it is to best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances. 2 Discovery and SJ can help fill in the gaps. i Desire not to dismiss good claims for which P cannot get access to necessary facts, especially when D is in the best place to get them. ii Dioguardi v Durning (2nd Cir. 1944): P brought negligence action against D, the Collector of Customs, alleging that D sold Ps merchandise at a lower price than requested and that D was responsible for disappearance of some of P's goods. P was pro se and didnt speak English. Ps complaint was dismissed for failing to state a cause of action, and P appealed. Issue: Has P stated enough in his complaint to withstand a motion to dismiss? Rule: Under Rule 8(a) P is only required to plead a short and plain statement of his claim showing that the pleader is entitled to relief. No requirement to plead facts sufficient to constit ute a cause of action. Application: P is in better place to show facts that he didnt sell goods incompatible with public auction either in pre-trial hearing or through SJ with supporting affidavits. P shouldnt be deprived of day in court to show what he firmly believes. Pro se lawyers: Ct encourages P to get a lawyer, instead of arguing pro se. Ct doesnt seem to hold pro se lawyers at the same standard, bc it recognizes a law education could make you more able in ct. a D

Dioguardi seems to be easier than Case. Can distinguish by saying cts are nicer to pro se Ps.

It is not the duty of ct to create a claim when P hasnt spelled it out in pleading. However, ct may sustain a pleading if it can figure out there is a particular claim in the pleadings.

Civil Procedure Professor Edward Cooper 1 Case v State Farm Mutual Automobile Insurance Co. (5th Cir.): P was insurance agent for D, working under K allowing any party to cancel for any reason. P alleged that, subsequent to candidacy for county supervisor, D issued unreasonable directives on how he was to run insurance agency. Eventually D terminated K, and P sued. Lower court dismissed action for failure to state a claim. P appealed. TC affirmed. Rule: It isnt the duty of the TC or app ct to create a claim which appellant hasnt spelled out in his pleading. Application: Ct below didnt err. Complaint was based solely on wrongful termination of the K; however, D was within their contractual rights in ending employment relationship. Although P argued the complaint stated an action for wrongful interference with performance under the K, that action was buried in complaint. Instead, damages were based entirely upon claim that K was wrongly terminated and language of claim could reasonably be construed as Ps willingness to give up his quest of public office if he desired to retain his contractual relationship w D. Ct refused to read the claim into Ps pleading. E Heightened Pleading Rule 9 Pleading Special Matters 1

Capacity or Authority to Sue; Legal Existence.

1 1 2 3 2

In General. Except when required to show that the court has jurisdiction, a pleading need not allege:
a partys capacity to sue or be sued; a partys authority to sue or be sued in a representative capacity; or the legal existence of an organized association of persons that is made a party.

Raising Those Issues. To raise any of those issues, a party must do so by a specific denial, which must

state any supporting facts that are peculiarly within the partys knowledge. 2

Fraud or Mistake; Condition of Mind. In alleging fraud or mistake, a party must state with particularity the

circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person's mind may be alleged generally. 3

Conditions Precedent. In pleading conditions precedent, it suffices to allege generally that all conditions

precedent have occurred or been performed. But when denying that a condition precedent has occurred or been performed, a party must do so with particularity. 4

Official Document or Act. In pleading an official document or official act, it suffices to allege that the document Judgment. In pleading a judgment or decision of a domestic or foreign court, a judicial or quasi-judicial

was legally issued or the act legally done. 5 it. 6 7 8 tribunal, or a board or officer, it suffices to plead the judgment or decision without showing jurisdiction to render

Time and Place. An allegation of time or place is material when testing the sufficiency of a pleading. Special Damages. If an item of special damage is claimed, it must be specifically stated. Admiralty or Maritime Claim.
1

How Designated. If a claim for relief is within the admiralty or maritime jurisdiction and also within the

court's subject-matter jurisdiction on some other ground, the pleading may designate the claim as an admiralty or maritime claim for purposes of Rules 14(c), 38(e), and 82 and the Supplemental Rules for

Civil Procedure Professor Edward Cooper Admiralty or Maritime Claims and Asset Forfeiture Actions. A claim cognizable only in the admiralty or maritime jurisdiction is an admiralty or maritime claim for those purposes, whether or not so designated. 2

Designation for Appeal. A case that includes an admiralty or maritime claim within this subdivision (h)

is an admiralty case within 28 U.S.C. 1292(a)(3). 1 Declined to require heightened pleading bc by enumerating claims qualifying for heightened pleading in Rule 9, others not on the list are disqualified i Leatherman v Tarrant County Narcotics Intelligence & Coordination Unit (1993): SC declined to apply more stringent pleading standard in civil rights cases alleging municipal liability, bc Rule 9 does not include it under a stringent standard, but only discusses fraud/mistake claims. Rules would need to be amended to include them, judicial interpretation is not suitable. So, regular Rule 8(a) applies. a

Leatherman left open whether lower cts may impose heightened pleading requirements on Ps
bringing civil rights claims against gov officials who claim qualified immunity.

ii Swierkiewicz v Sorema N.A. (2002): Hungarian P was demoted by French CEO for less experienced French person, isolated, and then fired. P sued claiming discrimination based on national origin and age. History: TC dismissed the complaint, bc P had not adequately alleged circumstances that supported an inference of discrimination. Ct of App affirmed. Issue: Is a complaint in an employment discrimination suit reqd to contain specific facts establishing a prima facie? Rule: A complaint in an employment discrimination lawsuit need not include facts establishing a prima facie case, and instead must contain only a short and plain statement of the claim showing the pleader is entitled to relief. Since complaints of employment discrimination do not fall under 9(b) and the ct refuses to extend such exceptions to other contexts, the complaint must satisfy only the simple requirements of 8(a). The ct just wants fair notice of the claims. Ps complaint satisfies Rule 8(a) requirements, bc it gives D fair notice of the basis of his claims, which are discrimination based on national origin and age. It includes detailed events leading to termination, relevant dates, and ages/nationalities of some of the relevant persons involved. Rationale: (1) The prima facie case is an evidentiary standard, not a pleading requirement. (2) It is incongruous to require P, in order to survive a motion to dismiss, to plead more facts than he might ultimately need to prove to succeed on the merits if direct evidence of discrimination was discovered. (3) Rule 8(a) establishes a pleading standard without regard to whether a claim will succeed on the merits. iii Pelman v McDonalds Corp. (2d Cir. 2005): P sued D for deceptive business acts. History: TC found complaints were insufficient, bc it failed to answer qs such as: What else did Ps eat? How much? Family history of diseases? TC held that wo this info, D doesnt have sufficient info to determine if goods are cause of Ps obesity or if it is merely a contributing factor. TC reversed. Criticized TCs requiring heightened pleading than the limited pleading requirement of Rule 8(a). This info is appropriately the subject of discovery. iv Heightened pleading seems to live on because the Court has required it in other settings

Civil Procedure Professor Edward Cooper a

Crawford-El v. Britton: A claim of deliberately sending materials to you by slow means that
interferes w access to courts requires showing of intent. Court may require P to provide more definite statement under 12(e) so that P provides more specific allegations of intent by specific,

non-conclusory factual allegations supporting a finding of intent.

2 Cts may require heightened pleading in massive or expensive cases i Bell Atlantic Corporation v. Twombly (2007): Ps sued D for violating 1 of the Sherman Antitrust Act through (1) inhibiting growth of local phone cos. and (2) eliminating competition among themselves in territories where dominant. History: DC dismissed for failure to state a claim. Ct of App reversed. Issue: What must a P plead in order to state a claim under 1 of the Sherman Antitrust Act? Rule: R8(a)(2) requires only short and plain statement of the claim showing the pleader is entitled to relief, in order to give D fair notice of what the claim is and the grounds upon which it rests. While a complaint attacked by a Rule 12(b)(6) motion to dismiss doesnt need detailed factual allegations, Ps obligation to provide grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level. In applying these standards to a 1 claim, the complaint requires enough factual matter (taken as true) to suggest that an agreement was made. Asking for plausible grounds to infer an agreement does not impose a probability requirement at the pleading state; it simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of illegal agreement. Test: Did the party present enough facts to state a claim to relief that is plausible, moving past the line of possibility to plausibility? Rationale: TC must be able to insist upon some specificity in pleading before allowing a potentially massive factual controversy to proceed. Antitrust discovery can be expensive . Problem of discovery abuse cannot be solved by careful scrutiny of evidence at the SJ stage or lucid instructions to juries. So, the threat of discovery expenses will push cost-conscious Ds to settle even anemic cases before reaching those proceedings. It is only by taking care to require allegations to reach the level suggesting conspiracy that we can hope to avoid potentially enormous expense of discovery. Precedent: Ct retires Blacks statement in Conley that the accepted rule is that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that P can prove no set of facts in support of his claim which would entitle him to relief. The rule is n ow that once a claim has been stated adequately, it may be supported by showing any set of facts consistent w the allegations in the complaint. The ct finds this rule complies w Swierkiewicz, since it does not require heightened fact pleading of specifics, but requires only enough facts to state claim that is plausible on its face. Application: Twomblys complaint did not indicate that carriers resistance to competitors was anything more than natural, unilateral reaction of each carrier, intent on keeping its regional dominance. Also, alleged anti-competitive conduct of carriers itself indicated that a carrier's attempt to compete in another carrier's market would not be profitable.

Civil Procedure Professor Edward Cooper ii Is the ct reconsidering the process? Before, ct reconsidered process to make pleading easier and rely on discovery and SJ to weed out cases. Here, the ct seems to be relying on pleading to weed out cases. iii Different ways to read Twombly a b c If the case is complicated, ct examines the likelihood P will win and will pass the case through. Narrow holding: Ct will have a higher pleading standard only on Sherman Act 1. Wider holding: If discovery will be costly, ct will require higher pleading standard. Sherman Act 1 or securities litigation is just one example of this. 3 Succinct Summary of Twombly i A party attempting to state a claim under 1 of the Sherman Act is required to provide enough factual matter (taken as true) to suggest that an agreement was made. This simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence of illegal agreement. ii Rule can be reconciled w the last paragraph of the opinion by holding that specific facts (which is described in Swierkiewicz as alleging all the elements in a prima facie case) are not required under Rule 8(a)(2), but that enough facts are needed to push the ct from holding it's not just possible for the party to win, but that it is plausible. i When we say Twombly requires heightened pleading, it means that it requires more evidence to show that a claim has been stated, not specific evidence. 4 Ct may be backtracking from heightened pleading, or saying Twombly was limited to antitrust. i Erickson v Pardust (2007): P, a fed prisoner, brought suit, alleging he had been denied proper treatment for hepatitis C, placing his life in jeopardy. History: TC dismissed on ground P failed to plead that he had suffered substantial harm and Ct of App affirmed. Rule: S. Ct. held R8(a)(2) requires only a short and plain statement of the claim showing that the pleader is entitled to relief. Specific facts are not necessary; the statement need only give the defendant fair notice of what the [] claim is and the grounds on which it rests. ( Twombly (quoting

Conley v Gibson)).
5 Ashcroft v. Iqbal (2009) We have to accept the truth of facts, but only well-pleaded facts. i What makes a fact well-pleaded? Leaves a lot of room to maneuver. ii The part that has stirred concern: A claim has facial plausibility when the plaintiff pleads factual content that allows court to draw reasonable inference that the defendant is liable for the misconduct alleged. a Can be read as saying it has to be like a motion for summary judgment, enough fact for the court to draw a reasonable inference." b If it just says on a date and time D negligently drove the vehicle against P. Twombly says that is ok. c What about at a date and time at a certain speed. The phrase has caused all sorts of consternation determining whether a complaint states a plausible claim will be context-specific, which requires reviewing court to draw on judicial experience and common sense. Critique: this leaves too much room for the individual judge.

Civil Procedure Professor Edward Cooper 6 Rule 9b heightened pleading in cases alleging fraud or mistake. Rule 9b indicates that only when the rules specify it, do you need heightened pleading. The next part of rule 9b says, malice, intent, and knowledge and other conditions of persons mind may be alleged generally. i Looks like all they have to do is say they published maliciously, they intended to discriminate, they had knowledge. BUT not so, says the court in Twombly, this does not allow a simple statement. Generally is a relative term. ii Still have to plead it according to 8(a)(2). So, how do you plead intent? An illustration that Cooper likes, Foreign International University, student is a graduate student in social work, in a counseling session, defendant said your church has a program for that; student sues for violating First Amendment free exercise rights. What the hell do these pleading requirements mean? You cant cite well -stated facts part anymore. But there are thousands of cases citing this. In the end, it doesnt seem like it is having a huge effect. Does not seem like courts are dismissing more claims than before even in face of a heightened pleading requirement. 7 Note: Nobody knows what federal pleading practice is at the moment. The Supreme Court hasnt decided. So, exam answer would be: federal pleading practice is unclear, but here is what a federal judge might say these decisions mean for pleading. Some measure of fact foundation may be required now. So, what to do about information asymmetry? Discovery! The more detailed the pleading is, the clearer what youre trying to discover.

ALLOCATING THE BURDEN OF PLEADING

I Traditional Rule: Burden of pleading is usually assigned to the party who has the burden of producing evidence on that issue at trial. A P must put forward evidence on certain matters basic to the claim of relief, or he cannot prevail. 1 Rationale: If P cannot allege existence of basic elements of claim, may be assumed he could not introduce evidence at trial. B D has the burden of pleading matters on which D must introduce proof. Ex. Defenses. 1 Rationale: i Ct and parties will better know which of the many possible defenses D intends to introduce into evidence, thus making preparation for trial and actual work at trial more manageable. ii Difficult for P to meet all of the Rule 8(c) affirmative defenses. C Not all jurisdictions adhere to traditional rule. Ex. Contrib. neg.: D must raise issue, though P is required to prove own due care. II Statutes may cause uncertainty about which party must carry the burden. A

Schaffer v Weast (2005): S. Ct. split on whether school or parents of a child w learning disabilities had the
burden of proving or disproving an educational programs propriety. Holding: S. Ct. applied default rule that party seeking relief carries burden of raising issue in its pleading and carries burden of proof, even if school or parent brought action. Ct acknowledged rare exception when statute in q clearly indicates such a result.

III Considerations for determining who should plead

Civil Procedure Professor Edward Cooper A Whether the matter at issue fairly may be said to constitute a necessary or extrinsic element in Ps cause of action 1 Ex. Overdue payment P has to allege nonpayment, though trial burden is on D. Slander In some jurisdictions, P has to plead falsity, even though D has the burden of introducing evidence of truth. 2 Bc of the technical imbalance of requiring P to plead nonexistence of defense to state a claim, some cts require D to mention the defense in answer, rather than simply denying Ps allegation. Oth erwise, defense will be waived. B Prevent unfair surprise. 1 Depends on how often the idea is an issue at case. i Ex. Assumption of risk claims rarely invoked in cases, so should be pleaded. Doesnt apply to comparative responsibility, for instance, since it is common. C D Place trial burdens on the party who has better access to evidence (and pleading burden should follow that) Judgment of convenience based upon experience 1 Ex. Rule 9(a)s capacity. Because this is rarely an issue, require D to plead lack of capac ity 2 Ex. Rule 9(c), conditions precedent. Because insurance loans are typically loaded with conditions precedent, require D to determine which are relevant. E Disfavored defenses 1 Ex. truth in slander, S.O.L., Statute of Frauds (more often seen as an instrument of fraud than the preventer; people hide behind the lack of writing to avoid contracts). IV For safety, if a party does not know if he should plead something, he should plead it and risk being assigned the trial burden. That party can argue they pleaded it just to make sure it was in the case, and that other party actually has the burden to persuade at trial.

ANSWERS, DENIAL, AFFIRMATIVE DEFENSES, DEFENSES AND OBJECTIONS

I Answers A Timing: 1 Rule 12(a)(1)(A): A defendant must serve an answer: (i) within 21 days after being served with the summons and complaint; or (ii) if it has timely waived service under Rule 4(d), within 60 days after the request for a waiver was sent, or within 90 days after it was sent to the defendant outside any judicial district of the United States. B Function 1 Determines which allegations D intends to contest 2 Allows D to raise technical defenses (e.g., jurisdiction) C Admissions 1 Party has a duty to respond in good faith 2 Party may want to admit contestable issues if it would be best if they were not litigated (e.g., admitting morally reprehensible conduct so that the trial is on damages alone) D Rule 8 requires a D to make one of three responses to Ps complaint: admit, deny, or plead insufficient info in response to each allegation. It is not enough for D to claim the documents speak for themselves.

Civil Procedure Professor Edward Cooper II Denials Rule 8(b) Defenses; Admissions and Denials 1 1 2 2

In General. In responding to a pleading, a party must:

state in short and plain terms its defenses to each claim asserted against it; and admit or deny the allegations asserted against it by an opposing party.

Denials Responding to the Substance. A denial must fairly respond to the substance of the General and Specific Denials. A party that intends in good faith to deny all the allegations of a

allegation. 3 pleading including the jurisdictional grounds may do so by a general denial. A party that does not intend to deny all the allegations must either specifically deny designated allegations or generally deny all except those specifically admitted. 4

Denying Part of an Allegation. A party that intends in good faith to deny only part of an allegation Lacking Knowledge or Information. A party that lacks knowledge or information sufficient to form a Effect of Failing to Deny. An allegation other than one relating to the amount of damages is

must admit the part that is true and deny the rest. 5 belief about the truth of an allegation must so state, and the statement has the effect of a denial. 6 admitted if a responsive pleading is required and the allegation is not denied. If a responsive pleading is not required, an allegation is considered denied or avoided. Rule 9 Pleading Special Matters 1

Capacity or Authority to Sue; Legal Existence.

1 1 2 3 2 []

In General. Except when required to show that the court has jurisdiction, a pleading need not allege:
a partys capacity to sue or be sued; a partys authority to sue or be sued in a representative capacity; or the legal existence of an organized association of persons that is made a party.

Raising Those Issues. To raise any of those issues, a party must do so by a specific denial, which must

state any supporting facts that are peculiarly within the partys knowledg e. 2 3

Conditions Precedent. In pleading conditions precedent, it suffices to allege generally that all conditions

precedent have occurred or been performed. But when denying that a condition precedent has occurred or been performed, a party must do so with particularity. A Types of denial 1 General: To avoid an unintended admission, Ds often add a sentence denying all allegations in the complaint i Rule 8 and most states allow general denial. ii General denial at your own risk. a General denials seem to defeat the purpose of pleading as a means of narrowing and focusing issues in controversy. b Rules discourage general denial, which must be made in good faith and only in situations in which everything in the complaint can be denied legitimately.

Civil Procedure Professor Edward Cooper c Risky though, bc ct can decide general denial doesnt fairly respond to the substance of the allegation, deeming D to have admitted Ps specific averments. 2 Specific: sentence by sentence or paragraph by paragraph analysis of the complaint B Basis of denials 1 Rule 11(b)(4): A denial must be i warranted on the evidence or ii if specifically so identified, are reasonably based on belief or a lack of information. C When a party intends in good faith to deny only a part or a qualification of an averment, the party shall specify so much of it as is true and material and shall deny only the remainder 1 Requires the party to pick apart an averment. 2 Denial of an entire averment where parts are certainly true can be taken as an ineffective denial (i.e. an admission) i Zielinski v Philadelphia Piers, Inc. (Dist. Penn. 1956): P pled a collision btw P and a forklift owned by D, driven by Ds employee. D answered D denies the averments of paragraph 5. D later admitted that they owned the forklift, but it was leased to a third party. TC finds no indication of bad faith. App. Ct ruled that D had admitted that forklift operator was its own agent. Since D did not contest Ps injury or fact of collision, it should have made a specific denial only as to the agency allegation, and the general denial was thus ineffective. D was not permitted to amend its answer to include a more specific denial bc SOL for third party had run. Equity required that D be estopped from denying agency bc it would deny Ps ability to recover. a Cooper: Better solution is to amend the complaint under 15(c) w the real D. That should be allowed bc the real D had notice. Rule: Under circumstances where an improper and ineffective answer has been filed, Penn. courts have consistently held that an allegation of agency in complaint requires that agency is admitted where an attempt to amend the answer is made after the expiration of SOL. Failure to use a specific denial and use of a general denial will cause the ct to admit it. D Improper Forms of Denial 1 Denials for Lack of Information: i Rule 8(b)(5): A party that lacks knowledge or information sufficient to form a belief about the truth of an allegation must so state, and the statement has the effect of a denial. ii Party cannot deny for lack of information if the information can presumptively be w/in the partys knowledge. Party is required to do some due diligence. 2 Negative Pregnant Denials: a denial which implies its affirmative opposite by seeming to deny only a qualification of the allegation and not the allegation itself. i Ex. P alleged D owes $1000. D denies owing P $1000. In some states, this results in an admission that D owes P one cent less than $1000. ii These technical decisions are not v common anymore. Generally, better to order more definite statement under R12(e). 3 Conjunctive Denials: a denial which denies all of the allegations as wholly untrue.

Civil Procedure Professor Edward Cooper i Ex. P alleged D made, executed, and delivered K for goods to P. D denied allegation specifically, using the identical words of the complaint. ii Ct held denial was evasive and thus admitted the existence of a K. D should delineate exactly which facts are true/untrue. iii Most cts today hold this as adequate or allow an amendment. III Affirmative Defenses A Rule 8(c) Affirmative Defenses (1) In General. In responding to a pleading, a party must affirmatively state any avoidance or affirmative defense, including: accord and satisfaction; arbitration and award; assumption of risk; contributory negligence; discharge in bankruptcy; duress; estoppel; failure of consideration; fraud; illegality; injury by fellow servant; laches; license; payment; release; res judicata; statute of frauds; statute of limitations; and waiver. (2) Mistaken Designation. If a party mistakenly designates a defense as a counterclaim, or a counterclaim as a defense, the court must, if justice requires, treat the pleading as though it were correctly designated, and may impose terms for doing so. B C Function: to provide notice to P of the possible existence of the defenses and Ds intention to advance them. Affirmative defenses include two types of pleadings: 1 Pleadings that concern allegations outside of Ps prima facie case t hat D cannot raise by a simple denial in the answer. 2 Pleadings that admit allegations in the complaint but suggest some other reason why there is no right of recovery for P i Ingraham v United States (5th Cir. 1987): Ps injured by docs in USAF. D (the US) did not invoke TX malpractice limitation to cap damages at $500,000. Post-judgment, gov filed a pleading on limitation. Issue: Is malpractice limitation an affirmative defense that must be timely raised in pleadings? Test: Following points are instructive in determining if a defense is affirmative, according to Rule 8(c): Does it prevent unfair surprise to make it an affirmative defense Is it a necessary or extrinsic element in Ps cause of action Which party has the better access to the relevant evidence, and Should the matter be indulged or disfavored. Certain defenses are disfavored, such as fraud, SOF, statute of limitations, truth in slander and libel. Application: Ct finds it is affirmative defense, esp bc it is unfair surprise. If Ps knew, they wouldnt have expended effort to prove medical damages above statutory limit and they would have had opportunity and incentive to introduce evidence to support constitutional attack on statute. A party should plead, especially if it would take the adverse party by surprise. Avoidance rule: Avoidance is the allegation or statement of new matter, in opposition to a former pleading, which, admitting the facts alleged in such former pleading, shows cause why they should not have their ordinary legal effect. P pleads traditional tort theory of malpractice and seeks full damages. D responds by assuming recovery, bc of the new statutory limitation, the traditional precedents should not have their ordinary legal effect. Application: Ct views the limitation on damages as an avoidance that must be pleaded timely.

Civil Procedure Professor Edward Cooper ii Compare Taylor v United States (9th Cir. 1987): Ps wife permanently brain damaged after treatment at an army hospital. After TC awarded damages, govt moved for reduction in damages, bc Cal Civ. Code limited recovery to $250,000. Rule: Cal Civil Code is a limitation on liability, not an affirmative defense. Rationale: (1) Unlike affirmative defenses in Rule 8(c), Cal Civil Code limits, but does not bar recovery for noneconomic damages. If FRCP dont require P to plead the extent of damages sought, Ds shouldnt be required to plead the limitation of damages. (2) Rule 8(b)(6) says that averments to amount of damage which D does not deny in answer are not admitted. IV Defenses and Objections A Defenses that may be made by motion 1 Rule 12(b) How to Present Defenses Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion: (1) lack of subject-matter jurisdiction; (2) lack of personal jurisdiction; (3) improper venue; (4) insufficient process; (5) insufficient service of process; (6) failure to state a claim upon which relief can be granted; and (7) failure to join a party under Rule 19. A motion asserting any of these defenses must be made before pleading if a responsive pleading is allowed. If a pleading sets out a claim for relief that does not require a responsive pleading, an opposing party may assert at trial any defense to that claim. No defense or objection is waived by joining it with one or more other defenses or objections in a responsive pleading or in a motion. B Party may move for judgment on the pleadings 1 Rule 12(c) Motion for Judgment on the Pleadings. After the pleadings are closed but early enough not to delay trial a party may move for judgment on the pleadings. C Motion for failure to state a claim, under Rule 12(b)(6) 1 Standard i Garcia v Hilton Hotels International, Inc. (Puerto Rico 1951): P sues D for defamation. P claims he was falsely & slanderously accused of bringing prostitutes to Ds hotel and was violently discharged by D. D files R12(b)(6) against P. Rule: wrt motions to dismiss for insufficiency of statement, complaints are to be construed in the light most favorable to P w all doubts resolved in his favor and the allegations accepted as true. If the ct finds it reasonable that P, on the basis of what has been alleged, could make out a case at trial entitling some relief, ct shouldnt dismiss the claim. Holding: Ct finds it reasonable that P, upon trial, could adduce evidence tending to prove publication of slander, despite that the complaint itself fails to state it.

Civil Procedure Professor Edward Cooper 2 If a motion is barred by absolute privilege, claim should be dismissed. Claim shouldnt be dismissed if there is a conditional privilege bc P can claim abuse of privilege. Ct may order more definite statement under R12(e) to permit responsive pleading asserting the defense. i Garcia v Hilton Hotels International, Inc. (Puerto Rico 1951): Absolute privilege rule: An absolute privilege is a finally determinative or conclusive defense to a claim of slander. When absolute privilege exists, failure to state a claim may be asserted to accomplish dismissal under R12(b). Conditional privilege rule: Conditional privilege is not a conclusive defense, but a qualified defense which may be lost if P can prove abuse of privilege or actual malice. Ct cannot hold as a matter of law that a party failed to state a claim, bc there is a factual question of whether D abused the privilege or made communication maliciously. Application: PR law says a publication or communication shall not be held or deemed malicious when made in any legislative or judicial proceeding or in any other proceeding authorized by law. So, ct strikes part of complaint, bc D has an absolute privilege on utterances during legislative hearings. D may have a defense of conditional privilege, which can be lost if P proves abuse of the privilege or actual malice. So, ct requires P to provide a more definitive statement in pleading, so D can prepare responsive pleading asserting the defense. D Request for a more definite statement 1 Rule 12(e) Motion for a More Definite Statement : A party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response. The motion must be made before filing a responsive pleading and must point out the defects complained of and the details desired. If the court orders a more definite statement and the order is not obeyed within 14 days after notice of the order or within the time the court sets, the court may strike the pleading or issue any other appropriate or der. 2 Rule is seldom used bc of the liberal notice-pleading standard in Rule 8 and availability of extensive discovery. 3 Motion under R12(e) will be denied when the information sought by the moving party is available through discovery. E Motion to strike 1 Rule 12(f) Motion to Strike: The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. The court may act: (1) on its own; or (2) on motion made by a party either before responding to the pleading or, if a response is not allowed, within 21 days after being served with the pleading. 2 Limits: Ct only strikes unnecessary allegations that have no useful purpose. 3 Purpose: removes from public record unfair or embarrassing attacks or charges. F V Waiver Rule 12(h) Rule 7(a)(7): Dont need to reply to an Answer unless the ct orders one. Reply and Answers to Counterclaims and Cross-Claims A

Civil Procedure Professor Edward Cooper B Reply 1 When its allowed under Rule 7(a) i Allowed to a counterclaim ii Upon court order in response to an answer or third-party answer 2 Normally, P is not permitted to reply to affirmative defense in Ds answer. Under R8(d), allegations in answer are taken both as denied and avoided. C Answers to Counterclaims and Cross-Claims 1 Counter-claim or cross-claim is considered as if it were an original complaint. Party to whom it is directed must respond. i If claim is against P, it is called a reply. ii If claim is against a co-D or new party, it is an answer. 2 Reason: Lots of defense available to P. Complaining D must know what P denies and what affirmative defenses P will raise.

AMENDMENTS
I Introduction A Rule 15 represents two of the most important policies of the fed rules! 1 Rules purpose is to provide maximum opportunity for each claim to be decided on its merits rather than on procedural technicalities, since Rule 15 is permissive to amendments. CL and code, on the other hand, restricted amendments such that pleader could not change the original cause of action. 2 Rule 15 reflects that pleadings have limited role of providing notice of the pleaders claim or defense, and the transaction, event, or occurrence in question. Pleadings are no longer for fact revelation and issue formation. Discovery and trial do that. II Amendments Before Trial Rule 15(a) Amendments Before Trial 1 1 2

Amending as a Matter of Course. A party may amend its pleading once as a matter of course within:
21 days after serving it, or if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive

pleading or 21 days after service of the motion under Rule 12(b), (e), or (f), whichever is later. 2

Other Amendments. In all other cases, a party may amend its pleading only with the opposing party's Time to Respond. Unless the court orders otherwise, any required response to an amended pleading

written consent or the court's leave. The court should freely give leave when justice so requires. 3 must be made within the time remaining to respond to the original pleading or within 14 days after service of the amended pleading, whichever is later. A When a party may make an amendment 1 Rule 15(a) allows for the automatic amendment of a pleading : i 21 days after a responsive pleading is served, or a List of responsive pleadings can be found in Rule 7(a). According to Rule 7, motion to dismiss is not a pleading. So, it doesnt cut off right to amend.

Civil Procedure Professor Edward Cooper ii Within 21 days of the service of the original pleading if no response is required. 2 After that, amender must obtain leave of ct or consent of opponent. Leave freely granted when justice requires. i Exceptions: Leave should be granted unless there is some good reason not to, like undue delay, bad faith or dilatory motive on the part of the movant; repeated failure to cure deficiencies by amendments previously allowed; undue prejudice to the opposing party by virtue of allowance of the amendment; futility of amendment. ii Beeck v Aquaslide N Dive Corp. (8th Cir. 1977): P injured on Ds water slide. D admitted in answer and during interrogatories that D manufactured the slide, after Ds 3 insurance c os. examined and concluded it was Ds slide. 6.5 months after SOL expired, D moved to amend its answer to deny manufacture. TC granted leave to amend. Separate trial was held to determine if D manufactured and sold the slide, and the ct found D did not. So TC entered SJ of dismissal. Issue: Was it abuse of TCs discretion to grant manufacturer leave to amend to deny these admissions after SOL ran? Rule: See exceptions above. Leave to amend lies w/ discretion of TC, and is reviewable only for abuse of discretion. Application: No abuse of discretion, since TC searched record for evidence of bad faith, prejudice and undue delay. No bad faith, bc D relied on 3 diff insurance cos investigations and no contention that D influenced their error. No issue of prejudice in refusing Ps argument that allowing the amendment would end the litigation since it was after the SOL, bc it was speculative if P would win at trial. Note: Maybe resolvable for P by relation back? Beyond 120 days but ct can allow. III Amendments to Pleadings During or After Trial A Objection at trial 1 Rule 15(b)(1) Based on an Objection at Trial:If, at trial, a party objects that evidence is not within the issues raised in the pleadings, the court may permit the pleadings to be amended. The court should freely permit an amendment when doing so will aid in presenting the merits and the objecting party fails to satisfy the court that the evidence would prejudice that party's action or defense on the merits. The court may grant a continuance to enable the objecting party to meet the evidence. 2 Ct must balance btw Whether an amendment will aid in presenting the merits and Whether it will prejudice the partys action or defense. a Ex. Allowing new evidence could cause only a one sided presentation, etc. 3 Trial judge options i Not allow evidence bc it unfairly prejudices objecting partys action or defense on the merits; a Ex. Complicated issue which would take a lot of time to respond to, acting in bad faith, etc. ii Grant a continuance to allow the opposing party time to respond; or iii Permit pleadings to be amended. 4 Rule 15 shows that pleadings arent held to high regard. Pleadings can be shaped by other means thereafter.

Civil Procedure Professor Edward Cooper B Express/implied consent 1 Rule 15(b) For Issues Tried by Consent When an issue not raised by the pleadings is tried by the parties express or implied consent, it must be treated in all respects as if raised in the pleadings. A party may move at any time, even after judgment to amend the pleadings to conform them to the evidence and to raise an unpleaded issue. But failure to amend does not affect the result of the trial of that issue . 2 Amendments to conform to evidence may be done at any time, even after judgment. However, failure to conform does not affect result of trial on the issues. 3 Implied consent i Implied consent requires (according to Moore v Moore): a Inquiring whether party contesting the amendment had actual notice of unpleaded matter, and b Actual notice may arise from the nature of the action itself. Had the opportunity to litigate such matters and cure any surprises for its introduction. Failed to object to evidence on the new issue, or Introduced evidence which is clearly apposite to the new issue and not to the other matters specified in the pleadings. iii Ex. P got into an accident and alleged only personal injury, not property damage. a If P discusses how her head hit the windshield, D isnt required to object to property damage, bc it isnt clear enough that its a new issue. It seems so related to personal injury claim, that ct can view it as within Ps personal injury claim. b If P introduces evidence of cost of repairing windshield, Ds failure to object implies consent, bc cost of repairing has nothing to do w personal injury. iv Moore v Moore (D.C. Ct. App. 1978): P (father) sued for custody. After trial, D amended complaints in two motions: (a) conform pleadings to evidence and assert counterclaim for custody, child support, and separate maintenance, and counsel fees in connection with TC custody litigation only; and (b) move for award of counsel fees. They were granted. D won. Holding: P gave implied consent to amendments because P had notice of matters either by whats typical in such a claim or by evidence introduced to that effect and adequate opportunity to litigate and cure surprise from introduction. 4 When issues not in the pleadings are tried by express or implied consent, it will be as if they had been raised in the pleadings. C Dilemma: A may object when B tries to introduce evidence not in pleadings, but this will induce B to request leave to amend, perhaps even to add an issue of which A was not aware. But, i f A doesnt object, it can be taken as implied consent. IV Relation Back of Amendments A If SOL expired btw the original pleadings and the amendment, party still may be allowed to amend. The amendment is considered as if it had been pled in the initial pleadings. B Relation back is allowed in any of these three circumstances 1 Rule 15(c)(1)(A): the law that provides the applicable statute of limitations allows relation back;

ii Implied consent may be shown when the adverse party: a b

Civil Procedure Professor Edward Cooper i If state law setting SOL allows relation back, fed ct should allow relation back bc SOL and relation back bound together. ii (B) and (C) only apply when law doesnt permit relation back. So, even though SOL says you lost the claim, the ct can use (B) and (C) to allow the claim a relation back 2 Rule 15(c)(1)(B): the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out or attempted to be set out in the original pleading; or i Same conduct, transaction, or occurrence: requires a v close relationship, and not just close in time and place. ii Requirement relates to the purposes of SOL a b Prevent evidence from getting cloudy and stale. Grant party repose. Sense of fairness in acquired expectations. Social interest in getting disputes terminated one way or another.

iii Most common way that amendment can be related back is when a Easiest if evidence is the same. a Hypos P pleads he saw Ds car. P amends to say D backed into Ps car twice. P states he didnt know at the time of pleading, bc he had blacked out. Seems to go on in the same event. b P says a week later, D smashed his car again. Sounds like a different conduct, transaction, or occurrence. c P was arrested and found guilty. P sued later, saying police had hit him on the right ear. Ct found this was a different conduct, transaction, or occurrence, and so it didnt relate back. b Repose or adequacy of notice is satisfied. iv Applies to amendments for a defense too. Why does a defense need to relate back? One thing, if you failed to raise a defense, you have lost it. But the ct may permit you to raise it via amendment. v Legal theory change: Mere change of legal theory does not prevent an amendment from relating back. 3 Rule 15(c)(1)(C): the amendment changes the party or the naming of the party against whom a claim is asserted, if Rule 15(c)(1)(B) is satisfied [it arises out of same conduct, transaction, or occurrence] and if, within the period provided by Rule 4(m) for serving the summons and complaint, [120 days], the party to be brought in by amendment: (i) received such notice of the action that it will not be prejudiced in defending on the merits; and (ii) knew or should have known that the action would have been brought against it, but for a mistake concerning the proper partys identity. i Requirements a Must satisfy Rule 15(c)(1)(B) which requires amendment to assert a claim or defense that arose out of the conduct, transaction, or occurrence set out, or attempted to be set out, in the original pleading b Must meet Rule 4(m)s time limit, which is generally w/in 120 days of filing the complaint. Rules expressly mention Rule 4(m).

Civil Procedure Professor Edward Cooper a Rule 4(m) Time Limit for Service: If a D is not served within 120 days after the complaint is filed, the court on motion or on its own after notice to the P must dismiss the action wo prejudice against that D or order that service be made within a specified time. But if the P shows good cause for the failure, the court must extend the time for service for an appropriate period. This subdivision (m) does not apply to service in a foreign country under Rule 4(f) or 4(j)(1). b a Notice that ct can extend time, if P shows good cause. P files on 730 -> Notice to proper D must be given by day 850. This is Ps maximum amount of time (wo cts discretionary extension). So, if P doesnt know who D is, P should wait until the last day of SOL, bc youll get 120 more days. b c P files on 120 -> Notice to proper D must be given by day 240 Other party had notice and not prejudiced. Adequate notice can be obscure under 15(c)(3). Notice can be factually uncertain. Ex. Stationhouse gossip. d Other party knew or should have known that the action would have been brought against it, but for a mistake. a The circuits universally allow changing of names when there is a mistake. Circuit split on whether a party can change names bc of lack of knowledge. 7th Cir.: Only mistakes count. Assume SOL is 730 days.

Worthington v Wilson (Ill. 1992): P sued three unknown police officers. P amended
the complaint, naming two officers. Ds moved to dismiss amended complaint, arguing SOL had run and complaint didnt state proper claim. Judge allowed both motion to dismiss and motion for sanctions. P objected. Rule: 7th circuit believes that while Rule 15(c) permits amendments which change a mistaken name in the original complaint, it does not permit P to replace unknown parties w actual parties. Application: Ps complaint in which he named arresting officers did not relate back, for SOL purposes, to original complaint, because Ps original pleading was not a mistake, it was a lack of knowledge

3 Cir.: Dicta that P who doesnt know D is indistinguishable from mistaken P. All that
rd

matters is notice. ii the party or the naming of the party: Includes name of party to overrule Schiavone v Fortune: P sued Fortune Magazine, a division of Time. P moved to amend, but ct refused, pre-1991 amendments, bc P was changing the name of the party 4 Rule 15(c)(2): Notice to the United States. When the US or a US officer or agency is added as a D by amendment, the notice requirements of Rule 15(c)(1)(C)(i) and (ii) are satisfied if, during the stated period, process was delivered or mailed to the US attorney or the United States attorney's designee, to the Attorney General of the United States, or to the officer or agency.

Civil Procedure Professor Edward Cooper

SUPPLEMENTAL PLEADINGS
I Ps Supplemental Pleadings A Rule 15(d) Supplemental Pleadings. On motion and reasonable notice, the court may, on just terms, permit a party to serve a supplemental pleading setting out any transaction, occurrence, or event that happened after the date of the pleading to be supplemented. The court may permit supplementation even though the original pleading is defective in stating a claim or defense. The court may order that the opposing party plead to the supplemental pleading within a specified time. B Purpose/Use: Supplemental pleading can be used to cure defects in original pleading, to add new claims, or to provide additional facts that update complaint. C Rationale: Rule 15(d) permits bringing new claims in supplemental pleading, bc it promotes economical and speedy disposition of the controversy. Keith v Volpe. D Are supplemental pleadings governed by the same relation-back analysis as amended pleadings? 1 One view: Davis v Piper Aircraft Corp. (4th Cir. 1980): No critical distinction btw supplemental pleadings and relation back. As long as R15(c) is met, supplemental pleading should ordinarily be given same relation back effect as an amended pleading. II Ds Supplemental Counterclaims A Rule 13(e) allows Ds to use a supplemental pleading to assert counterclaims that arise after filing an answer. 1 Rule 13 (e), Counterclaim Maturing or Acquired After Pleading. The court may permit a party to file a supplemental pleading asserting a counterclaim that matured or was acquired by the party after serving an earlier pleading. 2 Notice Ps and Ds are treated differently for supplemental pleadings. Ps right seems narrower.

Discovery
GENERAL SCOPE AND PROTECTIONS
I Purposes of Discovery A Purposes 1 Preservation of relevant information that might not be available at trial. Ex. Witnesses who are aged, ill, or will be out of town. 2 To ascertain and isolate issues actually in controversy btw the parties. 3 Find out what testimony and other evidence is available on each of the disputed factual issues. 4 Public interests Congress uses private suits as a means to enforce laws such as anti-trust, securities, environmental, civil rights, etc. Ps have to discover evidence from Ds in such suits. Strength of discovery also effects strength of congressional enforcement. Litigants in U.S. serve role of public officers within an administrative bureaucracy in other states. Unless corresponding new powers are conferred on public officers, limiting discovery would diminishes disincentives for lawless behavior.

Civil Procedure Professor Edward Cooper 5 Provides notice, decreasing surprise. B Why is discovery such a big deal? 1 Discovery costs a lot. 2 Privilege against self-incrimination. Some believe unfair for govt to allow A to get info from B. Requires B to prove As claim. C Discovery rulings are rarely reviewed by ct of apps 1 One typically cannot get review until there has been a final judgment. 2 Very hard to persuade app court that either: Discovered admissible evidence should not have been allowed to be discovered and would ve made a difference. If you were allowed to discover more, you would have found more evidence and it wouldve made a difference. 3 Ways to get around it: Disobey order: sanction is civil or criminal contempt. a Non-party can appeal any civil or criminal contempt order bc it is separate from action. If party wins on appeal, the party doesnt have to pay the fine. b If you are a party: i You cannot appeal civil contempt order (part of underlying civil action) until final judgment. ii You can appeal criminal contempt order (separate from underlying claim). Penalties include jail, sanction, etc. Permissive interlocutory appeal: TJ has to certify that the case involves a material q of law that is difficult to answer and its answer on appeal will help the action. Extraordinary writ: If denial based on rule of law, mandamus, collateral order doctrine, can ask for default judgment or dismissal so you have final judgment Privilege denial can be appealed bc if discovery is made, you cannot undo it since you cant make discoverer forget info. II Relevance A Rule 26(b)(1) Discovery Scope and Limits. Scope in General. Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. All discovery is subject to the limitations imposed by Rule 26(b)(2)(C). B Rule 26(b) was amended in 2000 and restyled in 2007 1 Discovery requests limited to material relevant to any partys claim or defense.

Civil Procedure Professor Edward Cooper 2 However, for good cause, the ct may order further discovery of any matter relevant to the subject matter involved in the action, which returns discovery to its prior scope. 3 Advisory Committee Note: Committee intended that the parties and ct focus on the actual claims and defenses involved in action. Dividing line btw information relevant to the claims and defenses and that relevant only to the subj matter of the action cannot be defined w precision. But the ct says there are differences through examples. Ex of info not directly pertinent to the incident, but relevant to claims/defenses: Incidents of the same type, involving the same product could be properly discoverable under the revised standard. Info about organizational arrangements or filing systems could be discoverable if likely to yield or lead to discovery of admissible info. Ex of info not relevant to claims/defenses, but relevant to subj matter: Info likely to impeach a likely witness, although not otherwise relevant to the claims or defense, might be properly discoverable. III Proportionality and Discretionary Limits A B Relevance of information sought is limited by the concept of proportionality. This can be found in Rule 26(b). Goal of proportionality: to promote judicial limitation of discovery on a case-by-case basis to avoid abuse or overuse of discovery. C D Rule 26(b)(2) weighs whether the discovery will cause undue burden or cost and if good cause outweighs it. Difficulty with this approach is finding principled criteria for differentiating between various types of cases. E Effect of likelihood of prevailing on a decision about scope of discovery 1 Cable Electronic Products, Inc. v Genmark : granted SJ despite P's request to wait until he had the opportunity for discovery b/c the court thought that the probabil ity of prevailing was vanishingly small 2 Rule 26(b)(2)(C)(iii) sets limits by noting the burden or expense of the proposed discovery outweighs its likely benefit. Discovery Conference Rule 26(f) Conference of the Parties; Planning for Discovery 1

Conference Timing. Except in a proceeding exempted from initial disclosure under Rule 26(a)(1)(B) or

when the court orders otherwise, the parties must confer as soon as practicable and in any event at least 21 days before a scheduling conference is to be held or a scheduling order is due under Rule 16(b). 2

Conference Content; Parties' Responsibilities. In conferring, the parties must consider the nature and

basis of their claims and defenses and the possibilities for promptly settling or resolving the case; make or arrange for the disclosures required by Rule 26(a)(1); discuss any issues about preserving discoverable information; and develop a proposed discovery plan. The attorneys of record and all unrepresented parties that have appeared in the case are jointly responsible for arranging the conference, for attempting in good faith to agree on the proposed discovery plan, and for submitting to the court within 14 days after the conference a written report outlining the plan. The court may order the parties or attorneys to attend the conference in person. 3

Discovery Plan. A discovery plan must state the parties' views and proposals on:

Civil Procedure Professor Edward Cooper 1 what changes should be made in the timing, form, or requirement for disclosures under Rule 26(a), the subjects on which discovery may be needed, when discovery should be completed, and whether any issues about disclosure or discovery of electronically stored information, including the form or any issues about claims of privilege or of protection as trial-preparation materials, including if the including a statement of when initial disclosures were made or will be made; 2 discovery should be conducted in phases or be limited to or focused on particular issues; 3 forms in which it should be produced; 4 parties agree on a procedure to assert these claims after production whether to ask the court to include their agreement in an order; 5 what changes should be made in the limitations on discovery imposed under these rules or by local any other orders that the court should issue under Rule 26(c) [Protective orders] or under Rule 16(b) rule, and what other limitations should be imposed; and 6 [Scheduling] and (c) [Attendants and Considerations at Pretrial Conference] 4

Expedited Schedule. If necessary to comply with its expedited schedule for Rule 16(b) conferences, a
1 require the parties' conference to occur less than 21 days before the scheduling conference is held or a require the written report outlining the discovery plan to be filed less than 14 days after the parties'

court may by local rule: scheduling order is due under Rule 16(b); and 2 conference, or excuse the parties from submitting a written report and permit them to report orally on their discovery plan at the Rule 16(b) conference. A Rationale: If you force ppl to behave in civilized manner and talk to each other, they can simplify and focus far better than through formal exchanges. Cooper says it actually has worked. It helps focus and limit the case. Mandatory Disclosure 1 Rule 26(a)(1)(a) Required Disclosures, Initial Disclosures . 1

In General. Except as exempted by Rule 26(a)(1)(B) or as otherwise stipulated or ordered by the court, a
1 the name and, if known, the address and telephone number of each individual likely to

party must, without awaiting a discovery request, provide to the other parties : have discoverable information along with the subjects of that information that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment; 2 a copy or a description by category and location of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment; 3 a computation of each category of damages claimed by the disclosing party who must also make available for inspection and copying as under Rule 34 the documents or other evidentiary material, unless privileged or protected from disclosure, on which each computation is based, including materials bearing on the nature and extent of injuries suffered; and

Civil Procedure Professor Edward Cooper 4 for inspection and copying as under Rule 34, any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment. 2

Proceedings Exempt from Initial Disclosure. The following proceedings are exempt from initial
1 2 3 an action for review on an administrative record; a forfeiture action in rem arising from a federal statute; a petition for habeas corpus or any other proceeding to challenge a criminal conviction an action brought without an attorney by a person in the custody of the United States, an action to enforce or quash an administrative summons or subpoena; an action by the United States to recover benefit payments; an action by the United States to collect on a student loan guaranteed by the United a proceeding ancillary to a proceeding in another court; and an action to enforce an arbitration award.

disclosure:

or sentence; 4 a state, or a state subdivision; 5 6 7 States; 8 9 3

Time for Initial Disclosures In General. A party must make the initial disclosures at or within 14 days

after the parties' Rule 26(f) conference unless a different time is set by stipulation or court order, or unless a party objects during the conference that initial disclosures are not appropriate in this action and states the objection in the proposed discovery plan. In ruling on the objection, the court must determine what disclosures, if any, are to be made and must set the time for disclosure. 4

Time for Initial Disclosures For Parties Served or Joined Later. A party that is first served or

otherwise joined after the Rule 26(f) conference must make the initial disclosures within 30 days after being served or joined, unless a different time is set by stipulation or court order. 5

Basis for Initial Disclosure; Unacceptable Excuses. A party must make its initial disclosures based on the

information then reasonably available to it. A party is not excused from making its disclosures because it has not fully investigated the case or because it challenges the sufficiency of another party's disclosures or because another party has not made its disclosures. A Rationale behind insurance disclosure: Allows parties to determine whether to try case. How much time is P going to devote to case if D has no insurance and P cannot get a judgment? Conversely, if insurance limit is high, then P would devote more time. Helps lawyers in settlement and trial preparation. Liability insurance is different from discovery of partys personal assets, which would be an invasion of privacy. Similarly, corporate reserves are not discoverable (yet SEC wants it disclosed). Another reason is that the insurance company controls the defense. B 1993: 1 Rules adopted mandatory disclosure. 2 Each party had to provide info relevant to disputed facts alleged w particularity in the pleadings. 3 Mandatory disclosure use to apply to every type of case, until 2000 amendments.

Civil Procedure Professor Edward Cooper C 2000 4 Rules were changed to require parties to produce only info that will support its claims and defenses. It also exempts mandatory initial and pretrial disclosures info used solely for impeachment. 5 Amended in 2000 to exclude 8 types of cases in which there is little need for discovery or in which a party is likely to be conducting his or her own case. Rule 26(a)(1)(B) D

Cummings v General Motors Corp. (10th Cir. 2004): Ps sued D (GM) for Mrs. Ps injury in car accident. D
argued injuries were not from defect, but rather force exerted on her during accident and Mrs. Ps position and posture at the time of the accident. P and Ds DV were refused. Jury verdict for D. P appealed, arguing that TC abused discretion in rulings on various discovery motions. Later, P found videos of front-facing child thrown from car seat during various accident stimulations. P waited 7 months to file a motion for relief from judgment under Rule 60(b). TC denied motion, finding motion untimely and lacking in support. TC affirmed. App. Ct. says P wrongly relied on R26 to argue that D was required to produce any relevant document. Rule: Under 2000 amendments for Rule 26, a partys initial disclosure obligation has been narrowed. No obligation to disclose witnesses or docs, whether favorable or unfavorable, not intended for use or if use would be solely for impeachment. What does mandatory disclosure require in terms of actual production of documents? 6 Comas v United Telephone Co. of Kansas (Kan. 1995): Initial disclosure may be made by describing or categorizing potentially relevant materials so that opposing party may make an informed decision regard which docs might need to be examined. Opposing party is expected to obtain desired docs by R34 or through informal requests. R26(a)(1) allows initial disclosures to be made by producing copies of all relevant documents.

Protective Orders Rule 26 (c) Protective Orders 1

In General. A party or any person from whom discovery is sought may move for a protective order in

the court where the action is pending or as an alternative on matters relating to a deposition, in the court for the district where the deposition will be taken. The motion must include a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action. The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: 1 2 3 4 forbidding the disclosure or discovery; specifying terms, including time and place, for the disclosure or discovery; prescribing a discovery method other than the one selected by the party seeking discovery; forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain designating the persons who may be present while the discovery is conducted; requiring that a deposition be sealed and opened only on court order; requiring that a trade secret or other confidential research, development, or commercial information

matters; 5 6 7

not be revealed or be revealed only in a specified way; and

Civil Procedure Professor Edward Cooper 8 requiring that the parties simultaneously file specified documents or information in sealed envelopes, to be opened as the court directs. 2

Ordering Discovery. If a motion for a protective order is wholly or partly denied, the court may, on just Awarding Expenses. Rule 37(a)(5) applies to the award of expenses.

terms, order that any party or person to provide or permit discovery. 3 A TJs consideration in granting/denying protective order 1 Marrese v American Academy of Orthopaedic Surgeons (7th Cir. 1984): P (surgeons) sued D (academy). Ct ordered D to produce correspondence and docs related to denials of membership applications btw 19701980, pursuant to order protecting their confidentiality. D refused and was held in criminal contempt and fined $10,000. D appealed. Rule: A motion under Rule 26(c) to limit discovery requires the TJ to compare hardship to the party against whom discovery is sought, if discovery is allowed, w hardship to the party seeking discovery if discovery is denied. TJ must consider the nature of hardship as well as its magnitude and thus give more weight to interests that have a distinctively social value than to purely private interests; and must consider possibility of reconciling competing interests through a carefully crafted protective order. Context: Posner notes context of the suit. Voluntary associations are important to many ppl and there is an interest in not undermining the voluntary character of an association w or wo the 1 st amend. Ps also have an interest in determining claim, bc otherwise, it would probably be impossible to prove antitrust claim. Application: Ct finds the order for discovery was erroneous, bc there were so many options (below) for the TJ to prevent Ps from abusing the discovery process (calling it hints of predatory discovery) wo denying them info essential to developing their case and the protection order was insufficient. Limits holding: This holding is not applicable to all files of all voluntary associations. B Good cause 1 Cts have required movant to demonstrate that disclosure will work a clearly defined and very serious injury. 2 Movant must make showing by specific exs or articulated reasoning, as different from stereotyped and conclusory statements. 3 Cts then use a balancing test to determine whether the protective order should issue. C Ct may fashion protective orders to protect the privacy interests of parties despite concerns of keeping judicial proceedings public and first amendment concerns 1 Seattle Times Co. v. Rhinehart (1984): P (religious group-Aquarians) sued D (publishers and authors of several critical articles), arguing defamation and invasion of privacy. Ps were ordered to identify donors and amounts, and member list. Ct gave protective order prohibiting D from publishing info or using it except as necessary to prepare for trial. P and D appealed. Rule: When protective order is entered on a showing of good cause as required by Rule 26(c), it is limited to pretrial discovery, and does not restrict dissemination of info if gained from other sources, and therefore does not violate 1st Amendment. Rationale: TCs have authority to issue protective orders under Rule 26(c), since pretrial discovery has significant potential for abuse by delaying, causing expense, and implicating privacy interests. Gov has a substantial interest in preventing abuse, bc it can be damaging to reputation and privacy. Ct doesnt subj it

Civil Procedure Professor Edward Cooper to a heightened 1st amendment standard, bc (1) R26(c) confers broad discretion to TC to decide when protective orders are appropriate and what degree of protection is required. (2) TC is in best position to weigh fairly competing needs and interests of parties affected by discovery. (3) It would cause burdensome evidentiary findings and could lead to time-consuming interlocutory appeals (according to footnote 23) D To protect confidentiality, judge may (according to Marrese): 1 Examine docs in camera to see if they are relevant Criticism: time consuming if you have to do this for many cases. From p arties perspective, how does the judge know, since a lawyer may be better suited to find the relationship btw the docs. TJ is just playing the role of Ps lawyer. 2 Give redacted docs to party seeking discovery so it can see if it contains or will lead to evidence supporting its claim, at which time sensitive info could be revealed. Criticism: imposes a burden on the TJ. 3 Control the sequence of discovery so that the action may be dismissed on SJ before sensitive info must be discovered. Rule 26(d)(2) Sequence: Unless, on motion, the court orders otherwise for the parties' and witnesses' convenience and in the interests of justice: (A) methods of discovery may be used in any sequence; and (B) discovery by one party does not require any other party to delay its discovery. Subpoena A Rule 45 allows an attorney to issue a subpoena commanding any person to give testimony, to produce and permit inspection and copying of designated records or other tangible objects, or to permit inspection of premises. B Obtain documents or inspect premises of nonparties 1 Rule 45 was amended to allow litigants to obtain docs or inspect premises of nonparties. 2 Before, a litigant had to take nonpartys dep and in connection w the dep serve a subpoena to order the nonparty bring items to the dep. In the alternative, litigant could bring separate action against nonparty. These cumbersome rules were eliminated. 3 Subpoena forces a non-party to produce documents, intangible things for inspection or sampling, or provide access to real property. Obligations imposed on non-parties are near identical to parties. C Rule 45(c) Protections 4 Party issuing and serving subpoena must reasonably avoid imposing undue burden or expense on the other. 5 Person commanded to produce docs, electronically stored info, or tangible things, or to permit inspection of premises, need not appear. 6 The person commanded could issue an objection before date specified or 14 days after subpoena. Serving party can request ct to order compliance. The order must protect the nonparty from significant expense. 7 Rule 45(c)(3)(A):Ct must quash or modify subpoena that doesnt give reasonable time for compliance; requires commanded party to travel more than 100 miles for something other than trial; requires disclosure of privileged or protected matter; or subjects party to undue burden.

Civil Procedure Professor Edward Cooper 8 Rule 45(c)(3)(B): Ct may quash or modify subpoena that discloses trade secret or other confidential info; discloses unretained experts opinion/info not describing specific occurrences in disput e and results in experts study not requested by party; or requires commanded party to travel more than 100 miles for trial. Ct may, instead of quashing or modifying a subpoena in this section, order appearance or production under specified conditions if serving party shows substantial need which cannot be obtained wo undue hardship and ensures subpoenaed person will be reasonably compensated. D Rule 45(d) Duties Rule 37: Failure to Make Disclosures or to Cooperate in Discovery; Sanctions 1 Default judgment 2 Dismissal of action 3 Exclusion of evidence 4 Failure for a party to appear at his own deposition is sanctioned by reasonable expenses and attorneys fees. IV Sanctions A

DISCOVERY TOOLS
I Discovery Prior to Commencing a Lawsuit A Rule 27 is designed for someone who knows exactly what his claim is and at least one expected adversary 1 Primary function of R27 is to preserve testimony. Courts uncertain whether this device may be used purely to ascertain facts B Rule 27 does not allow depositions to determine if someone has a claim or against whom he has a claim. 1 P injured by priming a dynamite cap that blew up. P doesnt know who manufactured it. Boss wont tell him, and P cannot sue boss bc of workers comp. P cannot depose anyone under R27 because he doesnt know at least one expected adversary. 2 In re Petition of Sheila Roberts Ford (D.C. Alabama 1997): P is administratix for decedent, who was shot by police. P filed petition under Rule 27, requesting leave to proceed w deposition of Sheriff. P said she expected to bring an action, but couldnt right now bc she needs to determine the appropriate Ds and the basic facts surrounding the death of deceased. Issue: Does Rule 27 allow discovery before trial? App Ct. says P seeks to discover or uncover testimony, not perpetuate it. Testimony is not in imminent danger of being lost. Rather P wants to know who shot and why. R27 doesnt provide for this. Rule: Rule 27 (a)(1) states that A person who desires to perpetuate testimony regarding any matter that may be cognizable in any court of the US may file a verified petition. Subsection (a)(3) says that an order allowing examination may be entered only If the ct is satisfied that the perpetuation of the testimony may prevent a failure or delay in justice. Rule 27 only extends to perpetuation of testimony, which means to make perpetual, preserve from extinction, or cause to last indefinitely. Rule 27 is not a vehicle for compliance w Rule 11. 3 Should the rule be revised to allow these parties to depose another?

Civil Procedure Professor Edward Cooper i Yes: better for simple matters. You allow for ppl like Ford who have clear and obvious injury (unlike dynamite cap case, where it is harder to show a claim). They also have done what is possible for them to discover information, they are just getting blocked. We are comfortable w ppl like the Sheriff to be deposed and to bear the cost of responding. ii No: Could push cost to other party to require them to pay for your research. Is likelihood of suit high enough? Privacy interests. Seems unfair to remedy an interest you dont even know about. How effective will the discovery actually be? You might have to depose same ppl again, wasting money. Alternative is just to sue someone like Dupont, and hope they are the party or require them to respond. 4 TJ may grant request to prevent failure or delay of justice. Rule 27(a)(3). 5 Court may order production of documents and physical examinations according to R. 34 and 35. R. 27(a)(3). C Unlike dynamite cap case, Sheila Roberts Ford provides a compelling claim and good reason to believe it is a good claim. Purpose of Rule 27 is to get information before it disappears, not to allow you to frame a complaint. Deposition by Oral Examination A B Rule 30 Deposition by Oral Examination Purposes 1 Pin down the deponents story 2 Discover the deponents qualities as a witness. Will the deponent be sympathetic or persuasive to a jury? 3 See if the deponent is telling the truth. If he is, you may want to find other people who witnessed the event. C Deposition Scope 1 Rule 30(a)When a Deposition May Be Taken (1) Without Leave. A party may, by oral questions, depose any person, including a party, without leave of court except as provided in Rule 30(a)(2). The deponent's attendance may be compelled by subpoena under R. 45. (2) With Leave. A party must obtain leave of court, and the court must grant leave to the extent consistent with Rule 26(b)(2): (A) if the parties have not stipulated to the deposition and: (i) the deposition would result in more than 10 depositions being taken under this rule or Rule 31 by the plaintiffs, or by the defendants, or by the third-party defendants; (ii) the deponent has already been deposed in the case; or (iii) the party seeks to take the deposition before the time specified in Rule 26(d) [Time and Sequence of Discovery], unless the party certifies in the notice, with supporting facts, that the deponent is expected to leave the United States and be unavailable for examination in this country after that time; or (B) if the deponent is confined in prison. D Requirements 1 Notice

Civil Procedure Professor Edward Cooper i Rule 30(b)(1): A party who wants to depose a person by oral questions must give reasonable written notice to every other party. The notice must state the time and place of the deposition and, if known, the deponent's name and address. If the name is unknown, the notice must provide a general description sufficient to identify the person or the particular class or group to which the person belongs. ii Rule 30(b)(2): For subpoenas requiring party to also bring materials, materials must be listed/attached to notice iii Rule 30(b)(3): Noticing party must state method of recording testimony. Any party may arrange to transcribe a deposition. W prior notice, any party may designate another method to record testimony in addition to the one specified in notice. Whoever requests has to pay for the recording. Parties may stipulate that dep occurs over phone or other remote means. a

Wilson v Olathe Bank (Kan. 1999): Ds moved for protective order to refuse videotaping dep. App.
Ct. overrules motion for protective order bc 1) shows no annoyance, embarrassment, oppression, or undue burden or expense. 2) P will pay for it. 3) No undue expense. Rule: Rule 30(b)(3) permits deps to be recorded by nonstenographic means wo first having to obtain permission of the ct or agreement from other counsel. Ct can order otherwise. Rule confers on the party taking the dep the choice of the method of recording. Rule 26(c) authorizes a protective order against annoyance, embarrassment, oppression, and undue burden or expense.

2 Officer: Rule 30(b)(5) says unless parties stipulate otherwise, an officer must be appointed and designated. Lists duties. 3 Time Limit: Rule 30(d)(2) says deposition is limited to one day of 7 hours. The court may allow additional time if needed or if the deponent or someone else impeded or delayed the examination. E Objections 1 Rule 30(c)(2) Objections i Objection must be made in concise, non-argumentative, and non-suggestive way. Normally, deponent will still answer Q. ii Lawyer may instruct deponent not to answer to: a b c Preserve a privilege, Enforce a limitation directed by the court, or Present a motion under 30(d)(4) [Motion to terminate or limit deposition] When A presents deposition at trial, B cannot make an objection to its use if he did not object at the deposition b Counsel must object if the ground of the objection is something that might be corrected at the time iv Objections must be noted on the record. Examination still proceeds, despite objection. F Termination 1 Rule 30(d)(4) Termination.

iii Reason for making objections a

Civil Procedure Professor Edward Cooper i Rule 30(d)(4)(A): A party may move to terminate the deposition if it is being conducted in bad faith or in a manner to annoy, embarrass, or oppress the deponent or party. If the objecting deponent or party so demands, the dep must be suspended for the time necessary to obtain an order. ii Rule 30(d)(4)(B): Ct may order deposition be terminated (reinstated only by ct) or limit its scope. iii Rule 37(a)(5): Party may recover expenses. G Subpoenas 1 Party: Notice is sufficient to require a party to appear for a deposition; no subpoena is required i Failure to appear is sanctioned by Rule 37(d), requiring payment of reasonable expenses & attorneys fees 2 Non-party: If deponent is a non-party, the party should get a subpoena, bc deposition is insufficient to compel appearance i If deponent does not appear and was not subpoenaed: a Rule 30(g)(2): Deposing party may be ordered to pay other partys attorneys fees and reasonable expenses. b H Deponent is not liable for sanctions. Corporations 1 Rule 30(b)(6) Depositions of corporations. Party may identify a corporation, partnership, or corporation Must describe with reasonable particularity the matters on which the examination is request Organization will name one or more officers or agents a b I For each person, designate the matters on which the person will testify The people identify will testify to matters known or reasonably available to the organization

Protection of Non-Parties 1 Polycast Technology Corp. v Uniroyal Inc. (N.Y. 1990): P purchased co. from D. P alleges D provided misleading financial info. Deloitte, a non-party, performed auditing for both P and D prior to purchase of co. Deloitte is still Ps independ ent auditors. There is a proposed deposition of Durant. Deloitte seeks a protective order barring deposition of on-site manager of cos audit, bc the info is not relevant, and even if is, it is duplicative of testimony of Deloittes engagement partner on t he audit. Rule: Orders barring the taking of a deposition altogether are both unusual and disfavored. On the other hand, non-party witnesses may be subj to somewhat greater protection against costly but marginally relevant discovery than are the parties. Movant has the burden to justify a protective order against videotape. Application: Ct refuses Deloittes protective order. Deloitte conducted an audit, which was used in part to determine co.s actual earnings. On-site mgr. will be able to supplement engagement partners testimony and on-site mgr. was on location so he can describe the workings of the audit team and interactions w co.s employees. Ct limits dep to one full day.

Written Questions in Depositions A Rule 31 Deposition by Written Questions

Civil Procedure Professor Edward Cooper B Rule 31 authorizes the taking of depositions upon written qs from parties and nonparties. Witnesses answer orally and their responses are recorded by an officer. Attorneys are usually not present. C Written depositions are used infrequently, bc it is difficult to make a useful set of qs wo knowing how witnesses will respond. As a result, written deps are used primarily to obtain routine info that is not in substantial dispute. Interrogatories to Parties A Written interrogatories allow one party to send to another a series of qs to be answered under oath w/in a specific time. No ct order is req and no officers need to be appointed; the entire exchange is accomplished by mail. Rule 33 Interrogatories to Parties 1 In General. 1

Number. Unless otherwise stipulated or ordered by the court, a party may serve on any other party no

more than 25 written interrogatories, including all discrete subparts. Leave to serve additional interrogatories may be granted to the extent consistent with Rule 26(b)(2). 2

Scope. An interrogatory may relate to any matter that may be inquired into under Rule 26(b). An

interrogatory is not objectionable merely bc it asks for an opinion or contention that relates to fact or the application of law to fact, but the court may order that the interrogatory need not be answered until designated discovery is complete, or until a pretrial conference or some other time. Zinsky v. New York Central Railroad Co. 36 FRD 680: Purpose of discovery is to allow narrowing of the issues, so a D can ask P why they are suing them. If P comes up with new theory later on, P is required to supplement answer to the interrogatory. It is not OK for P to ask D to prove case that they were not negligent or how should I contend that you were negligent? 2 Answers and Objections. 1 1 2

Responding Party. The interrogatories must be answered:

by the party to whom they are directed; or if that party is a public or private corporation, a partnership, an association, or a governmental agency,

by any officer or agent, who must furnish the information available to the party. 2

Time to Respond. The responding party must serve its answers and any objections within 30 days after

being served with the interrogatories. A shorter or longer time may be stipulated to under Rule 29 or be ordered by the court. 3

Answering Each Interrogatory. Each interrogatory must, to the extent it is not objected to, be answered Objections. The grounds for objecting to an interrogatory must be stated with specificity. Any ground Signature. The person who makes the answers must sign them, and the attorney who objects must

separately and fully in writing under oath. 4 not stated in a timely objection is waived unless the court, for good cause, excuses the failure. 5 sign any objections. 3 4

Use. An answer to an interrogatory may be used to the extent allowed by the Federal Rules of Evidence. Option to Produce Business Records. If the answer to an interrogatory may be determined by examining,

auditing, compiling, abstracting, or summarizing a party's business records (including electronically stored

Civil Procedure Professor Edward Cooper information), and if the burden of deriving or ascertaining the answer will be substantially the same for either party, the responding party may answer by: 1 specifying the records that must be reviewed, in sufficient detail to enable the interrogating party to giving the interrogating party a reasonable opportunity to examine and audit the records and to make locate and identify them as readily as the responding party could; and 2 copies, compilations, abstracts, or summaries. B Limitations of Interrogatories 1 Only applies to parties. Rule 33(a)(1). 2 A party is limited to 25 interrogatories, including all discrete subparts. Leave to serve additional interrogatories may be granted under Rule 26(b)(2). William v Board of County Commissioner (Kan. 2000): Rule: Parties cannot evade the limitation through joining subpart questions that seek info about discrete separate subjects. However, a q asking about communications of a particular type should be treated as a single interrogatory even though it requests that the time, place, persons present and contents be separately stated for each communication. 3 May relate to any matter under Rule 26(b)(1) on scope. C Answers 1 Each answer must be answered separately and fully, according to Rule 33(b)(3). 2 Rule 33(d): If the answer to an interrogatory is in a business record and the burden of ascertaining the answer is substantially the same for both parties, the answer may specify the records from which the answer may be derived. Answer should be in sufficient detail on how to find the answer. Must allow the other party reasonable opportunity to examine and make copies. Compare R30(b)(6) oral depositions: Corporation does not have this option for oral deps. Must find info themselves. D Objections 1 Party must specify grounds for objecting in a timely manner. Ct can waive untimeliness for good cause. 2 Party must answer interrogatories to the extent not objected to. 3 The interrogating party can seek a ct order requiring an answer. 4 Rule 33(a)(2) allows factual opinions: An interrogatory is not objectionable merely bc it involves an opinion or contention that relates to fact or the application of law to fact. Ex. Were you negligent is a valid interrogatory. 5 Exception: may not be an issue of pure law legal issues not related to the facts. Ex. Cant ask meaning of res ipsa loquitor. E Advantages: An important adv is that a party has a duty to respond to interrogatories not only on the basis of her own knowledge but also w regard to the knowledge of other persons, including her lawyers, employees, and other agents, that reasonably can be obtained through investigation. 1 Under 33(b)(1)(B), the obligation clearly exists for organizations.

Civil Procedure Professor Edward Cooper In re Auction Houses Antitrust Litigation (NY 2000): Sothebys served interrogatories on Christies to get details on docs from Christies former CEO, Dandridge. Christies refused to respond, claiming it requested Dandridge to furnish the info and he denied, on ground he might waive his privilege against self-incrimination. Rule: A party served w interrogatories is obliged to respond by furnishing info available to the party. Application: Ct ordered Christies to respond to the interrogatories, including in its responses information known to the Dandridge. The court found that, by virtue of the Dandridges termination and indemnification agreements, the auction house was in a position to press Dandridge to provide it with info in his possession. There was no countervailing foreign gov interest to be taken into account, nor would the auction house be faced with serious adverse consequences abroad if it were to take a position opposite to the Dandridge. 2 Not as clear under 33(b)(1)(A) for regular parties, but in prior amendment was clear; seems cts will prob. interpret it the same. F Disadvantage: Lawyers are in charge of framing the answer. Lawyer will interpret the question as narrowly as possible and frame an answer that reveals as little as possible. As a result, interrogatories have been viewed w narrow purpose, which is to note simple matters or to frame simple matters. G Amendments: Since theyve been cited as the most abused of the available discovery devices, FRCP have been amended a # of times to police the process. Ex. Presumptive limit of 25 interrogatories, specify records from which the answer can be found in sufficient detail to permit the interrogating party to locate and identify them as readily as able, etc. Production of Property A Rule 34. Producing Documents, Electronically Stored Information, and Tangible Things, or Entering onto Land, for Inspection and Other Purposes B Scope Rule 34 1

In General. A party may serve on any other party a request within the scope of Rule 26(b):
1 to produce and permit the requesting party or its representative to inspect, copy, test, or sample the any designated documents or electronically stored information including writings, drawings, graphs, following items in the responding party's possession, custody, or control: 1 charts, photographs, sound recordings, images, and other data or data compilations stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form; or 2 2 any designated tangible things; or to permit entry onto designated land or other property possessed or controlled by the responding

party, so that the requesting party may inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it. Rule 26(b)(2)(C) When Required. On motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that:

Civil Procedure Professor Edward Cooper 1 the discovery sought is unreasonably cumulative or duplicative, or can be obtained the party seeking discovery has had ample opportunity to obtain the information by the burden or expense of the proposed discovery outweighs its likely benefit, from some other source that is more convenient, less burdensome, or less expensive; 2 discovery in the action; or 3 considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues. Rule 26(b)(2)(B) Specific Limitations on Electronically Stored Information . A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery. C Requirements of Request must describe with reasonable particularity each item or category of items to be inspected; must specify a reasonable time, place, and manner for the inspection and for performing the related may specify the form or forms in which electronically stored information is to be produced. Rule 34(b)(1) Contents of the Request: The request: 1 2

acts; and 3 D Responses and Objections

Rule 34(b)(2) Responses and Objections 1

Time to Respond. The party to whom the request is directed must respond in writing w/in 30 days

after being served. A shorter or longer time may be stipulated to under Rule 29 or be ordered by the court. 2

Responding to Each Item. For each item or category, the response must either state that inspection

and related activities will be permitted as requested or state an objection to the request, including the reasons. 3 4

Objections. An objection to part of a request must specify the part and permit inspection of the rest. Responding to a Request for Production of Electronically Stored Information . The response may state

an objection to a requested form for producing electronically stored information. If the responding party objects to a requested form or if no form was specified in the request the party must state the form or forms it intends to use. 5

Producing the Documents or Electronically Stored Information . Unless otherwise stipulated or ordered
1 A party must produce documents as they are kept in the usual course of business or

by the court, these procedures apply to producing documents or electronically stored information: must organize and label them to correspond to the categories in the request;

Civil Procedure Professor Edward Cooper 2 If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms; and 3 form. E Nonparties 1 Rule 34(c) Nonparties: As provided in Rule 45, a nonparty may be compelled to produce documents and tangible things or to permit an inspection. 2 Although Rule 34 was limited to parties, it was amended to include Rule 34(c) and Rule 45 to allow a virtually identical procedure to obtain material from nonparties. To request a nonparty to produce docs or inspect premises, the litigant must serve a subpoena pursuant to Rule 45. 3 Rule 45(c)(2)(B): Unlike a party, nonparties are protected from significant expense resulting from production. F A party need not produce the same electronically stored information in more than one

Zubulake v UBS Warburg LLC (N.Y. 2003): P moved to compel D to produce emails key to Ps claim. D argues
restoring the emails would cost $175,000, exclusive of attorney time in reviewing the emails. Rule: 1 First, it is necessary to thoroughly understand the responding partys computer system, but w respect to active and stored data. For data kept in an accessible format, the responding party should pay costs of producing responsive data. A ct is to consider cost-shifting only when electronic data is relatively inaccessible, such as in backup tapes. 2 Second, it is necessary to determine what data may be found on the inaccessible media. In most cases, requiring the responding party to restore and produce responsive docs from a small sample of the requested backup tapes is sensible. 3 Third, 7 factors should be considered in deciding to conduct cost-shifting analysis: Extent to which the request is specifically tailored to discover relevant info. Availability of such info from other sources Total cost of production, compared to the amount in controversy. Total cost of production, compared to the resources available to each party Relative ability for each party to control costs and its incentive to do so. Importance of the issues at stake in the litigation Relative benefits to the parties of obtaining the info. Application: Ct orders D to produce all responsive emails on its optical disks or active servers at its own expense. D will produce, at its expense, responsive emails from any five backup tapes selected by P. D should then prepare an affidavit detailing results as well as the time and money spent. After reviewing contents of backup tapes and Ds certification, ct will do cost-shifting analysis. Sanctions 1 Qualcomm Inc v Broadcom Corp. (Cal. 2008): P withheld 46,000 emails that were highly relevant. Had they been given to D, it is highly unlikely case wouldve gone to trial and costs of litigation would def been substantially reduced. P ordered to pay ~8.5 million to D and reported Ps attorneys names to Cal. bar. 2 What action might a ct take if it learns of the failure to disclose before trial has commenced?

Civil Procedure Professor Edward Cooper Plasse v Tyco Electronics Corp.: Ct dismissed on merits of deliberate misconduct by destroying/concealing electronic info. Teague v Target Corp: Ct didnt dismiss Ps claim on the ground that it could not establish P acted in bad faith, but it gave a jury instruction that it could draw an adverse inference against P due to her destruction of significant evidence. Physical and Mental Examinations A Rule 35 Physical and Mental Examinations 1 R35 requires a court order, but if you dont have it, parties often work it out. Primary effect of Rule 35 is to encourage parties to stipulate to examinations. 2 Rule 35 imposes strict standards. Party requesting examination will propose examiners. TJ has authority to choose and usually picks proposed examiners to perform examination. This strikes a balance btw parties, bc the party examined will have his own examiner who will hardly be non-biased. B Limitations 1 Rule 35 (a)(1) In General: The court where the action is pending may order a party whose mental or physical condition including blood group is in controversy to submit to a physical or mental examination by a suitably licensed or certified examiner. The court has the same authority to order a party to produce for examination a person who is in its custody or under its legal control. 2 Limited to parties or ppl in the custody or legal control of a party (children). 3 Rule 35 allows only physical and mental exams, doesnt expand type of examinations Storms v Lowes Home Centers, Inc.: Ct refused to order vocational assessment unconnected w any physical or mental examination. Ct said although Rule 35 was amended to expand scope of examiners to be covered, didnt expand the scope of examinations available. C Requirements 1 Rule 35(a)(2) Motion and Notice; Contents of the Order : The order: (A) may be made only on motion for good cause and on notice to all parties and the person to be examined; and (B) must specify the time, place, manner, conditions, and scope of the examination, as well as the person or persons who will perform it. 2 In controversy and good cause requirements Schlagenhauf v Holder (1964): Rule: Good cause and in controversy requirements of R35 are not met by mere conclusory allegations of pleadings nor by mere relevance to case but (1) require affirmative showing that each condition for which exam is sought is really in controversy and (2) there is good cause for ordering each exam. Ability to otherwise obtain desired info is also relevant. a Good cause involves weighing pain, danger, or intrusiveness of exam against need for, or usefulnesss of, info gained. 3 Situations where pleadings are sufficient to establish in controversy and good cause requirements Schlagenhauf v Holder:

Civil Procedure Professor Edward Cooper a When a P who asserts a mental or physical injury places that mental or physical injury clearly in controversy and provides D w good cause for an examination to determine the existence and extent of such asserted injury, or b When D asserts his mental or physical condition as a defense, such as an insanity defense. 4 Situations where in controversy or good cause is not satisfied Individual already had an exam. It is a past injury. a

Winters v Travia: Ct refused to order P to submit to physical or mental examination bc Ps present

condition wasnt in controversy, since P was willing to abandon present or anticipated physical or mental disability or condition caused by the medical treatment she received.

Merely being able to use the evidence at trial is insufficient. D Examination Reports (A = party causing examination, B=examined party or person examined) 1 Rule 35(b)(6): These provisions apply even if the examination was made by party agreement rather than ct order. 2 If B requests examination report: (R. 35(b)(1)) A must produce a copy of examination report to B, including earlier examinations of the same condition a Rationale: Allows B to meet As examiners findings at trial Examiners report must be in writing and set out in detail examiners findings. 3 Upon As request, B is required to give A any report (before or after) of examination made of the same condition, unless B cannot obtain them. Rule 35(b)(2): By requesting and obtaining the examination report or deposing the examiner, B loses any privilege (including physician-patient confidentiality) in that action or any other involving same controversy for all examinations of the same condition. 4 If a party refuses to deliver a report, ct can order the party or the examiners testimony may be excluded E Recording or a lawyer present: Seems like ct attorneys or recordings cannot be used. 1 Abdulwali v Washington Metro Area Transit Authority: Ct refused Ds request to permit her attorney to attend Ps examination, to have the examination recorded, and to receive notes made by the psych iatrist. Ct noted that great weight of fed authority favors the exclusion of a partys attorney. Requests to Admit A Rule 36. Requests for Admission: Authorizes party A to serve on party B written requests to admit the truth of certain matters of fact or of the application of law to fact, or the genuineness of a doc or other evidence that may be used at trial. B Purpose 1 Used to shape info already known into statements that expedite trial by limiting issues in dispute and by obviating some of the formalities that control introduction of evidence at trial. 2 Can be a discovery device if party uses them early on to identify undisputed issues and target remaining issues for discovery. B Scope/Limitations

Civil Procedure Professor Edward Cooper 1 Rule 36(a)(1) i Must be served on another party. ii Must be for the purpose of the pending action and w/in scope of Rule 26(b)(1). iii Must relate to facts, application of law to fact, or opinions about either iv Must relate to the genuineness of any described documents. C Responses 1 Rule 36(a)(2) Form/Copy document: Each matter must be separately stated. If the request concerns the genuineness of a doc, the doc must be attached unless it was previously available for inspect and copying. 2 Rule 36 (a)(3) Timing: Must respond w/in 30 days or matter is considered admitted. Shorter or longer time for responding may be stipulated to under rule 29 or be ordered by the ct. Bc cts so frequently granted responding partys request for relief from failure to respond, Rule 36(a) was amended in 1970 to permit a requesting party to move for an order deeming the matter to be admitted. This made it risky to fail to respond to requests for admissions. 3 Answers Options Rule 36(a)(3)-(5) No response: matter is admitted. Deny: must specifically deny it or state in detail why the answering party cannot truthfully admit or deny. Admit and deny in part: must specify the part admitted and qualify or deny the rest. Not admitting and not denying: party can assert lack of knowledge or info if party has made a reasonable inquiry and that the info it knows or can readily obtain is insufficient to enable it to admit or deny. Object: Must state grounds. Cannot object solely bc request presents genuine issue for trial. a D Ex. vague, ambiguous, a compound sentence, seeks privileged or protected info, etc. Motion to determine sufficiency of answer or objection 1 Rule 36(a)(6): Party may move to determine sufficiency of answer or objection. If objection is not justified, ct must order that an answer be served. If the answer doesnt comply w the rule, ct may order either matter is admitted or party must amend. Ct may defer final decision on the matter until pretrial conference or specified time before trial. Rule 37(a)(5) applies to award of expenses. E Effect 1 Admitted matters are conclusively established for this action only. Responses to other discovery devices are not conclusive proof and may be contradicted at trial. Exception: Ct may permit withdrawal or amendment if it would promote presentation of merits of the action and the ct isnt persuaded that it would prejudice the requesting party in maintaining or defending the action on the merits. An admission cannot be used against the party in any other proceeding. F G Example: Form 51 provides an illustration of a request for admissions. Criticism: Rule 36 is the least useful discovery device. Lawyers tend to think of it as part of trial prep, so they delay it to the end, and frequently fail to file before due date.

Civil Procedure Professor Edward Cooper H Hypos: 1 P claims she slipped and fell on ice at Ds store. P requests to admit two things: (1) there was a patch of ice. (2) Canopy above store drips melted snow onto sidewalk in front of the store. Cooper says it looks like reasonable request, bc to put burden of finding out the info wo Ds help seems unreasonable. 2 Deceased had insurance policy for surviving spouse, if there is one. There are two spouses. Suit is brought by first, claiming marriage never dissolved. She serves it on the insurance co to admit deceased never divorced her. Presumption is that second marriage is valid. First spouse ha s burden to prove it wasnt valid. Cooper says this is questionable. Shouldnt the first wife have an easier time knowing whether shes ever been divorced than the insurance co? This is an adversary system and as J Jackson says it should be on our wits, not on the others wits. Each could relatively equally and easily access the information. I Sanctions Rule 37 (c)(2) Failure to Admit: If a party fails to admit what is requested under Rule 36 and if the requesting party later proves a document to be genuine or the matter true, the requesting party may move that the party who failed to admit pay the reasonable expenses, including attorney's fees, incurred in making that proof. The court must so order unless: 1 2 3 4 the request was held objectionable under Rule 36(a); the admission sought was of no substantial importance; the party failing to admit had a reasonable ground to believe that it might prevail on the matter; or there was other good reason for the failure to admit.

1 Party shouldnt have to admit something if it thought it could survive SJ and JMOL. 2 Duty to supplement is an opportunity, rather than an onerous burden. 3 Cooper believes there could be reliance. R36(b) says A matter admitted under this rule is conclusively established unless the court, on motion, permits the admission to be withdrawn or amended. Ct may allow a withdrawal or amendment if it would promote the presentation of the merits of the action and if the court is not persuaded that it would prejudice the requesting party in maintaining or defending the action on the merits. Expert Witnesses A B Rules 26(a), (b), and (e) Purpose: Ct wants parties to know pre-trial about expert testimony, so that parties may provide opposing expert witnesses. This decreases surprise, provides a better a dversarial process, and rebuts the partys experts. C Experts who may testify at trial 1 Rule 26(a)(2)(A): Party must disclose to other parties their identity. 2 Written report Rule 26(a)(2)(B): Must be provided w identity disclosure if the expert is: a b Retained or specially employed to provide expert testimony in the case, An employee whose duties regularly involve giving expert testimony.

Rule 26(a)(2)(B): The report must contain: (i) a complete statement of all opinions the witness will express and the basis and reasons for them;

Civil Procedure Professor Edward Cooper (ii) the data or other information considered by the witness in forming them; (iii) any exhibits that will be used to summarize or support them; (iv) the witness's qualifications, including a list of all publications authored in the previous 10 years; (v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and (vi) a statement of the compensation to be paid for the study and testimony in the case. Rule 26(a)(2)(C): Unless stipulated or ct orders otherwise, disclosures must be made at least 90 days before trial date or w/in 30 days after disclosure if the evidence was intended to contradict or rebut evidence. Rule 26(a)(2)(D) and (e)(1): There is a duty to supplement information in the report and any deposition of the expert for those individuals. 3 Rule 26(b)(4)(A): After written report is provided, Party may depose disclose expert. D Experts who are not expected to testify at trial 1 Their identities need not be disclosed. 2 Rule 26(b)(4)(B): Ordinarily a party cannot serve interrogatories or a deposition to an expert retained or specially employed by another party in anticipation of litigation or to prepare for trial and who is not expected to be called as a witness at trial. A party may do so only: a b As provided by Rule 35(b) or Showing exceptional circumstances that it is impracticable to obtain facts/opinions otherwise. i This bar more difficult than work-product (undue hardship) ii Ex. Adversary purchased all available experts. iii Ex. In testing, Ps expert destroyed the evidence. So D has no opportunity to test and needs discovery. E Rule 26(b)(4)(C): Unless manifest injustice would result, party is responsible for paying reasonable fees for the other partys time spent responding to discovery. 1 Fees for time spent responding to discovery results 2 Fair portion of fees and expenses the opposing party incurred in obtaining the experts facts and conclusions. F Docs prepared by testifying expert witnesses are not w/in work product doctrine (work product doctrine protects core work product, the purpose of which is to protect the adversarial nature of trial) 1 Krisa v Equitable Life Assurance Society (D.C. Penn. 2000): Rule: Rule 26 and the Advisory Committee Notes suggest that docs prepared by expert witnesses are not w/in ambit of work product doctrine. Rules plainly contemplated discovery of not only the opinions the testifying experts intended to advance at trial, but also preliminary or tentative opinions expressed by testifying experts that may be in conflict w their final opinions. Policy considerations underlying the work product doctrine are consistent w rule, bc the work product privilege is based upon the general policy against invading the privacy of an attorneys course of preparation, but D states counsels mental processes

Civil Procedure Professor Edward Cooper and opinions arent in experts draft reports. Thus requesting production of these docs will not invade the privacy to be accorded to Ds trial counsel in developing litigation strategies and theories. G Cts are split whether work-product protection applies to info supplied to a partys trial exper t 1 Majority Rule/Bright Line Rule: Work-product does not apply to info supplied to a partys expert. 1993 amendments were designed to mandate full disclosure of materials reviewed by an expert witness, regardless of whether they constitute opinion work product. Rationale: a b c Enhances effective cross-examination of expert witnesses Policies underlying the work product doctrine will not be violated Litigation certainty will be achieved, since counsel will know exactly what documents will be subject to disclosure and can react accordingly. 2 Minority: Work-product applies to info supplied to a partys expert. For the high privilege accorded attorney opinion work product not to apply would require clear and unambiguous language. The marginal value of cross-examination that the experts view may have originated from an attorneys opinion or theory does not warrant overriding the strong policy against disclosure of documents consisting of core attorneys work product. Krisa v Equitable Life Assurance Society (D.C. Penn. 2000): Work product protection extends to info considered by the expert, bc of high privilege afforded work-product. The bright line rule abridges the attorneys work product privilege wo specific authority to do so. Application: D is not compelled to produce the doc that contains attorney work product. Duty to Supplement Rule 26(e) Supplementation of Disclosures and Responses. 1

In General. A party who has made a disclosure under Rule 26(a) or who has responded to an

interrogatory, request for production, or request for admission must supplement or correct its disclosure or response: 1 in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing; or 2 2 as ordered by the court.

Expert Witness. For an expert whose report must be disclosed under Rule 26(a)(2)(B), the party's duty

to supplement extends both to information included in the report and to information given during the expert's deposition. Any additions or changes to this information must be disclosed by the time the party's pretrial disclosures under Rule 26(a)(3) are due. A Purpose: To eliminate inconsistent decisions regarding the existence and scope of the duty to update discovery answers B Party must supplement: 1 If ct orders it to do so, or

Civil Procedure Professor Edward Cooper 2 In timely manner if party learns that a disclosure, response to interrogatory, request for production, or request for admission is incomplete or incorrect and other party hadnt learned of the defect by other means Note that this does not apply to non-expert deposition testimony. C Expert Witnesses 1 Duty to supplement extends to experts report and depositions. It must be disclosed by the time the partys pretrial disclosures under Rule 26(a)(3) are due. D Sanctions 1 Rule 37(c)(1) Failure to Disclose or Supplement : If a party fails to provide information or identify a witness as required by Rule 26(a) or 26(e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless. In addition to or instead of this sanction, the court, on motion and after giving an opportunity to be heard: (A) may order payment of the reasonable expenses, including attorney's fees, caused by the failure; (B) may inform the jury of the party's failure; and (C) may impose other appropriate sanctions, including any of the orders listed in Rule 37(b)(2)(A)(i)-(vi). Work Product Rule 26(b)(3) Trial Preparation: Materials . 1

Documents and Tangible Things. Ordinarily, a party may not discover documents and tangible things

that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent). But, subject to Rule 26(b)(4), those materials may be discovered if: 1 2 they are otherwise discoverable under Rule 26(b)(1); and the party shows that it has substantial need for the materials to prepare its case and

cannot, without undue hardship, obtain their substantial equivalent by other means. 2

Protection Against Disclosure. If the court orders discovery of those materials, it must protect against

disclosure of the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation. 3

Previous Statement. Any party or other person may, on request and without the required showing,

obtain the person's own previous statement about the action or its subject matter. If the request is refused, the person may move for a court order, and Rule 37(a)(5) applies to the award of expenses. A previous statement is either: 1 2 a written statement that the person has signed or otherwise adopted or approved; or a contemporaneous stenographic, mechanical, electrical, or other recording or a

transcription of it that recites substantially verbatim the person's oral statement. A Work product protects documents and tangible things prepared in anticipation of litigation or for trial by party or its representatives. 1 Those products can be discovered if: They are otherwise discoverable under Rule 26(b)(1) or

Civil Procedure Professor Edward Cooper Party shows it has substantial need and cannot, wo undue hardship, obtain the substantial equivalent by other means. a Ex: undue hardship can mean: witness is hostile, memory is dimming , witness will likely deviate. i Snead v American Export-Isbrandsten Lines, Inc.: P moved for ct order requiring D to answer interrogs. abt whether D had possession of any secret motion pictures taken of P that would bear on the scope of Ps injuries. Rule: The only time there will be substantial need to know about surveillance pics will be in instances where there would be a major discrepancy btw the testimony P will give and what the films would seem to portray. b Substantial need satisfied in request for surveillance material before trial ii DiMichel v South Buffalo Ry. Co. (N.Y. Ct. App. 1992): P fell and was injured. P requested surveillance films. Issue: Are surveillance films discoverable by P before trial? Rule: Surveillance films should be treated as material prepared in anticipation of litigation, and thus subject to the qualified privilege that can be overcome only by a factual showing of substantial need and undue hardship. Application: Ps have substantial need to view surveillance films before trial bc films can be altered. Trials would be disrupted if cts had to grant a continuance to allow parties to review video evidence. Ps confronted w altered video evidence for the first time will likely be prejudiced by apparent weight of such evidence since it ll be difficult to undo initial impact on jurors. There is no substitute for viewing the surveillance materials taken by Ds. 2 If ct allows discovery, it must protect against disclosure of mental impressions, conclusions, opinions, or legal theories of a partys attorney or other representatives concerning the litigation. Especially applies to memos prepared from oral deposition, bc they reveal an attys mental impressions and legal theories. B Work product doesnt apply to: 1 Things prepared for non-litigation purposes, such as the ordinary course of business. Test: Are these gathered statements prepared in anticipation of litigation? Things done in the ordinary course of business are not protected by work product doctrine, bc it isnt in anticipation of litigation. a Hypo: Claims agents i Some argue they are in the ordinary course of business. ii But others argue the ordinary course of business is being sued, so it should be protected. iii Other cts say it depends on the case and they just go different ways depending on case. iv Claims agents are just as good as lawyers. 2 Identities of witnesses w discoverable information Rule 26(b)(1). 3 Identities of witnesses a party will use at trial and identities of witnesses a party may use at trial R26(a)(1)(A) and R26(a)(3)(A). C Materials fully covered under work product and thereby immune from discovery Counsel strategy is immune from discovery.

Civil Procedure Professor Edward Cooper Opening and closing arguments: Information on how the other party is going to cross-examine. Preparation of witnesses for the party. The greatest amount of money the party is willing to settle. D Oral witness statements and non-document and non-tangible things prepared for litigation by an attorney are protected by work product doctrine. 1 Hickman v Taylor (1947): D hired law firm for fear of potential suits. Ds atty interviewed and took written statements with eye toward litigation. P filed interrogs. requesting copies of written statements, oral statements reports, records, memos, etc. TC orders production. App. Ct. reverse TC. S. Ct. affirms reversal. Result: No discovery bc of work product doctrine. Rule: Deposition-discovery rules are to be accorded a broad and liberal treatment, but there are ultimate and necessary boundaries. There is a general policy against invading the privacy of an attorneys preparation. Burden is on invader of that privacy to establish adequate reasons to justify production through a subpoena or court order. Rationale: Proper preparation of a clients case demands that he assemble info, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy wo undue and needless interference. Application: P attempted to secure production of written statements and mental impressions wo any showing of necessity or claim that denial of such production would unduly prejudice preparation of Ps case or cause P any hardship or injustice. E Rationale 1 Preserves adversarial system (diligently prepare your own case). 2 Fairness to the hard work of a party 3 Fear of inefficiency Lawyers would stop putting everything in writing. Other side will not want to research, for fear they are helping the other party. Fear that lawyers will lazily rely on the other side to do the research. F Rule 26(b)(3): A witness, party or non-party, may get his own statement concerning the action or its subject matter wo any showing of need or burden 1 Limited to statements that are: Written statements that were signed or adopted or approved by the witness Recordings and transcriptions that are substantially verbatim of an oral statement and contemporaneously recorded. 2 Though a party may get his own statement wo showing of need, a party can get a non-party statement only by showing of substantial need or if the non-party gives his statement to the party. G May a party use an interrogatory to probe an adversarys legal theories or q of law? 1 Work product sounds like it protects a lot, but R33(a)(2) and R36(a)(1)(A) cut out a lot of it by allowing opinions on facts and application of law to fact.

Civil Procedure Professor Edward Cooper Interrogs.: Party can ask for an opinion or contention that relates to fact or the application of law to fact R 33(a)(2). Requests to admit: Party can ask the other party to admit the truth of matters relating to facts, the application of law to fact, or opinions about either Rule 36(a)(1)(A). 2 In re Convergent Technologies Securities Litigation (Cal. 1985): Issue: When should Ps answer contention interrogatories served by Ds? Procedure for interrogatories filed before most other discovery has been completed: Propounding party must craft specific, limited in # qs. Responding party must examine qs in good faith, and must answer interrogatories that would materially appear to contribute to any of the goals discussed in this opinion. If responding party feels, in good faith, that providing early answers would not contribute enough to justify effort involved, that party should phone or write opposing counsel to examine the basis. If opposing counsel continues to press for early answers, responding party should object or seek permission from ct to file an objection to the interrogatories as a group. The propounding party then has burden to seek an order compelling answers and justifying it. Ct believes that if this is different from other discovery procedures and their burdens, the differential treatment is justified. Application: Ds failed to show that by waiting, D is burdened or that litigation will be reshaped and save money by having the answers earlier. II Privileged Information A Rule 26(b)(1) limits discovery to any nonprivileged matter and the usual view has been that the same rules of privilege applies to discovery as apply at trial. 1 Examples of privileges i Recognized: 5ths privilege against self-incrimination and other Constitutional privileges; privileges founded in CL and statutes; and privileges for communication btw husband and wife, priest and penitent, and physician and patient. ii Other privileges struggle for recognition, such as privilege for communication btw accountants-clients. Rule 26(b)(5) Claiming Privilege or Protecting Trial-Preparation Materials. 1

Information Withheld. When a party withholds information otherwise discoverable by claiming that the
1 2 expressly make the claim; and describe the nature of the documents, communications, or tangible things not

information is privileged or subject to protection as trial-preparation material, the party must:

produced or disclosed and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim. 2

Information Produced. If information produced in discovery is subject to a claim of privilege or of

protection as trial preparation material, the party making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information to the court under seal for a determination of the claim. The producing party must preserve the information until the claim is resolved.

Civil Procedure Professor Edward Cooper B A claim of privilege or work product must be: 1 Expressly made, and 2 Describe the nature of the items withheld in a manner that enables other parties to assess the applicability of the privilege. C Failure to comply will result in loss of privilege use. 1 Moloney v United States (Mass. 2001): At dep., Ds counsel said a conversation btw doctor and D was privileged by virtue of attorney/client privilege and the attorney work product privilege. When P moved to compel, D claimed protection under federal self-critical analysis privilege, federal medical peer review privilege, and state statutory privilege, but not work-product protection or attorney-client privilege. Holding: TC ordered production, claiming it defies logic for atty to assert one privilege at deposition, but thereafter research and claim an entirely different privilege in response to the motion to compel. Such conduct most assuredly circumvents both the letter and the spirit of Rule 26(b)(5) and Rule 30(c)(2). D Attorney-client privilege 1 Four requirements for privilege to attach to communication : i The asserted holder of the privilege is or sought to be a client ii The person to whom the communication was made a b Is a member of the bar of the ct, or his subordinate and In connection w this communication is acting as a lawyer By his client Without the presence of strangers For the purpose of securing primarily either i An opinion on law, or ii Legal services, or iii Assistance in some legal proceeding, and iv Not for the purpose of committing a crime or tort; and iv The privilege has been claimed and not waived by the client. 2 Narrowly construed: Since the attorney-client privilege results in the suppression of relevant facts, cts tend to construe it narrowly and to resolve doubtful cases against a finding of privilege. 3 Absolute privilege: Privilege is absolute and cannot be compelled by the ct despite a partys compelling need. 4 In state cts, the attorney-client privilege is a creation of state law (statute CL or statute), not of fed law. In fed cts, the privilege is solely a matter of fed law, except that FRE 501 directs a federal TC sitting in diversity case to apply privilege law that would be applied by the cts of the state in which the fed ct sits. 5 Waiver i Attorney client privilege is waived if a protected communication is disclosed voluntarily to third person, and once waived, party can be forced to disclose not only specific communication but all communications involving same subj. matter.

iii The communication relates to the facts which the attorney was informed a b c

Civil Procedure Professor Edward Cooper ii Party may assert privilege when info is sought and cannot selectively reveal portions of communication and maintain the privilege for the remainder. iii Possibility of waiving attorney-client privilege strongly influences lawyers handling of discovery disputes. 6 Upjohn Co. v United States (1981): D is a corporation. It investigated misconduct and brought it to SEC, which submitted it to IRS. IRS requested all records including written questionnaires sent to managers of Ds foreign affiliates, and memos or notes of interviews conducted in US and abroad w officers and employees of Ds company. D refused, claiming protection from disclosure by atty-client privilege and that docs were work product of attys prepared in anticipation of litigation. Rejected control group test: Ct rejected test applied by lower app court, concluding that even low-level and mid-level employees could have information necessary to defend against potential litigation, and that FRE 501 protects any client info that aids the orderly administration of justice. Rule: Notes and memo are work product based on oral statements. If they reveal communications, they are, in this case, protected by the attorney-client privilege. To the extent they do not reveal communications, they reveal the attorneys' mental processes in evaluating the communications. As Rule 26 and Hickman make clear, such work product cannot be disclosed simply on showing of substantial need and inability to obtain the equivalent without undue hardship. Not sure if this is said elsewhere: EC says the court says it is prepared for litigation if it is prepared because of litigation. Or if the predominant reason for it is litigation. Ct is not prepared at this juncture to say that such material is always protected by work product rule; ct thinks a far stronger showing of necessity and unavailability by other means than was made by the govt or applied by Magistrate in this case would be necessary to compel disclosure. i Since the Upjohn opinion didnt announce a set of rules controlling the attorney -client privilege, these rules for attorney-client privilege have been suggested to fall under Upjohn: a b c Communication must be one that would not have made but for the contemplation of legal services Content of the communication must relate to the legal services being rendered Information-giver must be an employee, agent, or independent contractor w a significant relationship to the corporation and the corporations involvement in the transaction that is the subj of legal services. d e Communication must be made in confidence Privilege may be asserted either by the corporation or by the information giver.

Civil Procedure Professor Edward Cooper

Joinder
SUBJECT MATTER JURISDICTION
I II Ct must have jurisdiction over the subject matter and over the person. Types of cases a fed ct may hear: A 1331: Federal question jurisdiction 1 Federal cts have jurisdiction arising under treaties, fed laws, and constitution. 2 Federal jurisdiction cannot be used on Ps anticipation that D would raise a fed statute as a defense. i Louisville & Nashville RR v Motley: RR entered into K with Motleys to give them travel passes every year. When a new fed law prohibited RRs from issuing free passes, RR declined to renew passes. Motleys sued in fed court for specific performance of K, and circuit court granted an injunction. Motley claimed (1) statute doesnt apply to them, (2) and if it does, its unconstitutional. Holding: Under existing statutory scheme, federal question jurisdiction could not be predicated on Ps anticipation that D would raise a federal statute as a defense. Instead, such jurisdiction can only arise from complaint by P that D has directly violated some provision of the Constitution, laws, or treaties of the United States. B 1332: Diversity jurisdiction 1 Limits: i Amount in controversy must be larger than $75,000. ii There must be complete diversity. No P may be a citizen of the same state as any D. 2 Reasons: i Fear of prejudice where state cts will not be fair w citizens of another state. ii Some states have cts so bad that it isnt fair to inflict them on citizens of other states. C 1367: Supplemental jurisdiction 1 28 U.S.C. 1367 i 1367 (a): Supplemental jurisdiction is granted over claims so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. a Ex. state unfair competition claims in a federal antitrust claim because the same facts will be adjudicated in both ii 1367(b): Supplemental jurisdiction does not extend to claims by Ps against individual s made a party by impleader (R14), compulsory joinder (R19), permissive joinder (R20), or intervention (R24) if that does not meet the requirement of complete diversity of citizenship. iii 1367(c): Fed D.C.s may decline to exercise supplemental jurisdiction over a claim under subsection (a) if(1) the claim raises a novel or complex issue of State law, (2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction,

Civil Procedure Professor Edward Cooper (3) the district court has dismissed all claims over which it has original jurisdiction, or (4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction.

Brought By

Against Whom

Mandatory? Scope

Rule

Joinder of claim

Any party asserting a claim to relief by an original claim, counterclaim, crossclaim, or third-party claim

Any party

No (except judicata)

None

18(a)

opposing by res

Permissive counterclaim

Any party to a pleading Any opposing party

No

Any claim not arising out of the

13(b)

transaction or occurrence that is

the subject matter of the opposing partys claim.

Mandatory counterclaim

Any party to a pleading Any opposing party

Yes

Arising out of the transaction or

13(a)

occurrence that is the subject

matter of the opposing partys claim and does not require presence of third parties for whom the court cannot acquire jurisdiction

Cross-claim

Any party to a pleading Co-party, No except maybe not P-P

Arising out of the transaction or

13(g)

occurrence that is the subject

matter of the original action or a counterclaim or relating to any

property that is the subject matter

of the original action.

ASSERTION OF CLAIMS BY SINGLE PLAINTIFF

I Historical Limits on the Permissive Joinder of Claims A Formerly, only claims brought under the same writ, or form of action, could be joined in one suit. 1 Typical code provisions joined claims when they fell w/in one of several statutory classes, including Ks, express or implied; Injures to the person; Injures to character; Injuries to property; Actions to recover real property, w or wo damages; Actions to recover chattels, w or wo damages; and Actions rising out of the same transaction or transactions connected w the same subject of the action.

Civil Procedure Professor Edward Cooper 2 W/in the same form of action, you could join as many actions as you want, even if they were totally unrelated. 3 Conversely, you couldnt join closely related claims if they were in different forms of action. B C In equity, one could claim whatever claims he wanted at the chancellors discretion.

Harris v Avery (Kan. 1869): P sued for false imprisonment and slander.
CL Rule: Where the same form of action may be adopted for several distinct injuries, P may, in general, proceed all in one action, though the several rights affected were derived from different titles. P may also unite different forms of actions, where the same plea may be pleaded and the same judgment given on all counts of the declaration, or whenever the counts are of the same nature, and the same judgment is to be given on them, although the pleas be different. Section 89 of the Code: P may unite several causes of action in the same petition, whether they be such as have heretofore been denominated legal or equitable, or both, when they are included in either one of the following classes: First, the same transaction or transactions connected w the same sub ject of action. Application: Though false imprisonment is an injury to a person and slander is an injury to the character, they are united bc they are from the same transaction.

II

Modern Day Permissive Joinder Rule 18 Joinder of Claims 1

In General. A party asserting a claim, counterclaim, crossclaim, or third-party claim may join, as independent or Joinder of Contingent Claims. A party may join two claims even though one of them is contingent on the

alternative claims, as many claims as it has against an opposing party. 2 disposition of the other; but the court may grant relief only in accordance with the parties' relative substantive rights. In particular, a plaintiff may state a claim for money and a claim to set aside a conveyance that is fraudulent as to that plaintiff, without first obtaining a judgment for the money. A Party may join as many claims as he wishes to claim, counter-claim, cross-claim, or third-party claim. 1 Limit: Ct must have subject-matter jurisdiction. 2 Note that any party can assert claims. E.g. a third party P can join a claim to a cross-claim. B Rationale of liberal joinder 1 Efficiency (file once, same lawyers, judge becomes familiar w the case) i Even if lawyer doesnt join, R42 allows ct to join to make it more efficient. However, some claims are intrinsically unwieldy. So, Rule 42(b) also allows courts to take huge cases with many claims apart. R42 also enables court to allow, e.g., combined discovery and separate trial. 2 Res judicata requirements often have the effect of compelling P to join all related claims. i Some things must be joined to the same case or be precluded. ii Res judicata has expanded as claim joinder has expanded. 3 Repose: there is an interest in getting disputes resolved ASAP (so people dont have a cloud of litigation hanging over them). C Rationale for permissive rather than strictly mandatory joinder 1 P might not know all the claims at the time.

Civil Procedure Professor Edward Cooper 2 There could be powerful reasons why P should bring one claim now and the other later. Ex. First claim is about to expire under SOL and P may not have evidence for second claim yet. 3 May discourage parties to bring suits in general, bc they are unsure of what they can argue. 4 Could cause plaintiffs to sue later, which would make discovery more difficult, expensive, and burdensome or lose it via SOL. D TJ may join/consolidate actions or separate claims. Rule 42. Consolidation; Separate Trials 1

Consolidation. If actions before the court involve a common question of law or fact, the court may:
1 2 3 join for hearing or trial any or all matters at issue in the actions; consolidate the actions; or issue any other orders to avoid unnecessary cost or delay.

Separate Trials. For convenience, to avoid prejudice, or to expedite and economize, the court may order a

separate trial of one or more separate issues, claims, cross claims, counterclaims, or third party claims. When ordering a separate trial, the court must preserve any federal right to a jury trial. 1 Judges may separate claims for convenience, to avoid prejudice, or expedite and economize. E

M.K. v Tenet (D.D.C. 2002): Six former employees of CIA filed action claiming D violated Privacy Act of 1974,
and various constitutional rights by obstructing Ps access to counsel. In a proposed second amended complaint, Ps added 9 Ps and provided info about existing claims to cure deficiencies in the original complaint. Ds Argument: Ps obstruction-of-counsel claim consists of a series of unrelated, isolated grievances, unique to each, each of which would have to be decided on its own set of law and facts, and each potentially presenting a novel constitutional claim. Thus, D requested to sever claims of the 6 existing Ps under Rule 21. Ps Argument: Ct shouldnt sever the 6 existing Ps, bc both prongs of Rule 20(a)(1) are satisfied. Holding: Ct doesnt need to address 6 existing Ps new claims bc the ct is convinced that under the unrestricted joinder provision of Rule 18, such joinder of new claims is possible. Rule 18 regarding joinder of claims works in tandem w Rule 15, amendment of pleadings, and Rule 20, joinder of parties. Commentators collectively refer to these rules as packaging devices.

III Mandatory Joinder and Res Judicata A Collateral estoppel (issue preclusion): Once an issue was decided that was necessary to the judgment (to ensure the judge paid attention to it), the parties may not relitigate the same issue. B Res Judicata (claim preclusion): A judgment, once rendered, is the full measure of relief btw the same parties on the same claim or cause of action. Also prevents D from raising any new defense to defeat enforcement of an earlier judgment. It ignores the substantive merit of the judgment it enforces. Claim preclusion is a matter of decisional law, not rule-based. 1 When P wins, his claim merges in the judgment and he may seek no more relief. 2 When D wins, Ps claim is extinguished and the entire claim is barred by the judgment, even as to evidence, theories, arguments, and remedies that were not advanced in the first litigation. 3 If a second lawsuit involves a new claim or cause of action, the parties may raise assertions or defenses that were omitted from the first lawsuit even though they were equally relevant to the first cause of action. 4 Purpose and exceptions to res judicata

Civil Procedure Professor Edward Cooper i Federated Department Stores, Inc. v. Moitie (SC 1981): Rule: Res judicata is not a mere matter of practice or procedure inherited from a more technical time than ours. It is a rule of fundamental and substantial justice, of public policy and of private peace, which should be cordially regarded and enforced by the cts. Public policy dictates that there be an end of litigation; that those who contested an issue shall be bound by the result of the contest, and that matters once tried shall be considered forever settled as btw the parties. Application: App. Ct. wrong to rest opinion on simple justice (when a complex body of law developed over a period of time is evenhandedly applied), bc S. Ct. doesnt see grave injustice in res judicata. Res judicata instead serves vital public interests, as shown above. ii But, there are situations where justice and fairness dictate not applying res judicata, e.g., fraud, clear and fundamental jurisdictional defect. 5 Requirements i Judgment must have been final, valid, and on the merits. a Final: Asks only if nothing further remained for the judge to do but order entry of judgment i Appeals: Judgment is considered final if disposed of in the rendering court, even if an appeal is taken or time to appeal has not expired. But, if reversed, loses res judicata effect. ii Motion for new trial does not destroy finality b c Valid: Rests on first courts authority to have decided the case On the merits: Its on the merits if disposition is based on validity of claim rather than technical procedure grounds. i Dismissal by Rule 12(b)(6) is a judgment on the merits unless the court specifies that it is without prejudice. Harshness is usually cured by leave to amend. ii Dismissal for lack of jurisdiction or failure to join an indispensable party are not judgments on merits. Rule 41(b) iii Out-of-court settlement usually provide that the judgment is on the merits. ii Parties must be identical (or original party and new party were in privity) a Ex. of privity All members of a class in a class action suit Party who controls litigations but is not a member Representation (e.g., trustee of a trust is in privity with a beneficiary of the trust) Property transfers after litigation has begun. If part of property for which a claim already exists is transferred after judgment, the transferee is in privity with transferor for any claims transferor had started on behalf of land b No privity between employer and employees iii Claim in the second suit must involve matters properly considered included in the first action 6 Affirmative Defense: A party may waive benefits of preclusion by failing to raise it as an affirmative defense in second suit. 7 P must bring all parts of one claim or be precluded from those claims in the future by res judicata .

Civil Procedure Professor Edward Cooper i Older language would define one claim by asking whether the same evidence is used, would the same facts be the basis, is there one right or two rights violated. ii Transactional Test (Restatement (Second) of Judgments 24) a Test: Preclusive effect of a prior judgment extends to all rights the original P had w respect to all or any part of the transaction, or series of connected transaction out of which the original action arose. A claim should be viewed in factual terms and be coterminous w the transaction regardless of substantive theories and variant forms of relief. i Factors to consider whether a group of facts constitutes a transaction: Are the facts related in time, space, origin, or motivation? Do they form a convenient trial unit? Does their treatment as a unit conform to the parties expectations or business understanding, or usage? Critical issue: Are the two actions under consideration based on the same nucleus of operative facts? b Strikes a balance btw interests of ct and D in bringing litigation to a close and interest of P in vindicating a just claim. c d Advantage: Provides flexibility. Criticism i Flexibility comes at a price, since a ct may interpret the claim presented in the first lawsuit more broadly than a litigant does, causing the litigant to unknowingly forfeit the claim. ii Special difficulty for Ps claiming toxic exposure, bc they have immediate and possible subsequent damage claims. Bringing it early risks precluding later damages. Bringing it later risks having to pay for medical monitoring. e The Transactional Test is adopted by most cts. 8 What constitutes a single claim i Old days: if it appeared that D had invaded a number of primary rights conceived to be held by the P, the P had the same number of claims even though they all sprang from a unitary occurrence. ii Modern trend: a Present trend is to see claim in factual terms and to make it coterminous w the transaction regardless of the number of substantive theories, or variant forms of relief flowing from these theories, that may be available to P; regardless of the number of primary rights that may have been invaded; and regardless of the variations in evidence needed to support the theories or rights. i The idea of a claim is broader than the transaction to which it related. b A diff legal theory will not preclude claim preclusion even if it involves some different facts. i Ex. P sues and wins for negligence in car crash. P sues again for same accident for assault and battery. Second suit is precluded. c Future claim is barred even if P didnt recover all the variant forms of relief in the earlier suit.

Civil Procedure Professor Edward Cooper i Rush v City of Maple Heights (Ohio 1958): P injured falling off a motorcycle. P won suit for damages to personal property. P won suit in another ct for personal injuries in the same accident w a trial only for damages, bc considering negligence was barred under res judicata. Issue: Did TC and App Ct err in permitting P to split her cause of action? Uses Rest. Transactional Test Holding: Ct reverses and grants final judgment to D. Rationale: Prevents multiplicity of suits, burdensome expense, delays to Ps, and vexatious litigation against Ds. ii General rule: A single tort gives rise to a single claim regardless of the number of injuries. If a single injury can be traced to multiple wrongful acts, there is still only one claim. d Claim preclusion is less obvious as events become separated in time and space. i Ex. P is shopping. D robs bank. D gets into getaway car and runs over P. D drives away and a few miles later, drives into Ps house. This might be one claim. e Common motivation can make two events a single claim even if diff evidence must be introduced. i Ex. D hits P w a beer bottle. Three min later, P hits D again. Seems like it would be one claim, if it has a common motivation. f A single claim may grow over a period time. At some pt (time of filing the complaint), the dimensions of complaint are fixed; further damages constitute a single claim. i Ex. P sues for price fixing. If D continues price fixing after P files claim, continuing injuries constitute new claim. g Indemnification of employers by employees allows claim preclusion when a suit is brought against employees first and the employees prevail. i Mathews v. New York Racing Association, Inc. (S.D.N.Y. 1961): P sued D for assault and false imprisont by Ds employees. P also brought a malicious prosecution claim. In a previous action, P sued Ds employees alleging assault and libelous statements, in which ct found for D. Issue: Is the claim alleged in the complaint the same as the suit concluded earlier? Rule: P cannot splinter claim into multiplicity of suits and try them piecemeal at his convenience. P already alleged operative facts which state a cause of action on Ds misconduct and Ps harm, so P had his day in ct. P doesnt get another day after first lawsuit is concluded by giving a different reason than he gave in the first for recovery of damages for the same invasion of rights. The question of his rights against D based upon alleged wrongful acts is fully before the ct whether all the reasons for recovery were stated to the ct or not. Application: (1) P relied on the agents acts for an assault claim. Now, P asserts these same acts against agents principals on the theory of false arrest. (2) P relied on agents statements for a libel claim. Now, P asserts those same statements against agents principals on a theory of malicious prosecution. Any liability of Ds for acts or statements of their agents must be predicated upon respondeat superior. If agents committed no wrong against the P, then neither did principals. 9 Claims affected by substantive law

Civil Procedure Professor Edward Cooper i When P sues for money due on a K w installment payments, his claim comprises all missed installments. If he does not sue for all missed installments, he loses whatever he didnt sue for. a Ex. P loans D $50K. D promises to pay $2K every 3 months for 7.5 yrs. D doesnt pay for 3 months and P sues. K has no acceleration clause. The three missed payments constitute a single claim. ii Automatic acceleration clause: Failure to sue for the whole K results in losing those extra damages. a

Jones v Morris Plan Bank of Portsmouth (Va. 1937): P agreed to pay 12 monthly installments for
car. K said if any payment was missed, entire balance due. D previously sued P for nonpayment of two months and won. D sued P for another defaulted payment and then took a nonsuit when P claimed res judicata. D took possession of car and sold it. P sued for conversion. Issue: Was it essential that D instituted an action for all the installments then due or could it institute its action for only two of the installments and later institute another action for other installments? Rule: The answer to issue depends on nature of transaction. If a transaction is represented by a single and indivisible K and breach gives rise to one single cause of action, it cannot be split into distinct parts and separate actions for each. If the K is divisible giving rise to more than one cause of action, each may be proceeded upon separately. Test: If the same evidence will support both actions, there is but one cause of action. Application: The evidence essential to support the action on the two installments for which the action was brought would be identical evidence necessary to maintain an action upon all of the installments. So, it is one single and indivisible K. D lost its right to sue for remaining installments, so P gained ownership of car.

iii Most cts say that if money is due on separate promissory notes (Ks), money on each note (K) constitutes a separate claim. a Rationale: Each note could be sold to a separate party. Other parties cannot be joined bc they might not want to sue. Consequently no claim preclusion. iv Substantive law can affect whether there is a single or multiple claims. a If promisee repudiates a contract, there is a single claim for the entire contract. We dont want the promisor suing the promisee again and again. b Upon a material breach, the promisor may sue for damages on the whole contract or only for the breach. If promisor chooses the latter, he may sue for damages on the rest of the contract later on. This also covers installment contracts when an installment is missed.

ASSERTION OF CLAIMS & DEFENSES BY A SINGLE DEFENDANT

I Counterclaims A At Common Law 1 Recoupment: Allows D to raise a claim involving the same subject matter or same transaction as Ps claim to reduce Ps damages. Not required that opposing claims be liquidated or that they be of same character (one could be tort, the other K). i Criticism:

Civil Procedure Professor Edward Cooper a b Didnt allow claims by D that arose out of a transaction different from that sued upon. Didnt allow affirmative relief bc claims could only reduce or net -out Ps recovery.

2 Set-off claims: At equity, a D could bring a separate claim growing out of a different tra nsaction than Ps claim, but the claim must be liquidated. i Criticism: Limited bc claim had to be for liquidated amount. 3 Rationale: Common law set-off and recoupment based on belief that D should not be compelled to pay at one moment what he will be entitled to recover back the next. II Permissive Counterclaims A Rule 13(b) Permissive Counterclaims: 1 A pleading may state as a counterclaim i against an opposing party ii any claim that is not compulsory, i.e. not arising out of the same transaction or occurrence that is the subject matter of the opposing partys claim. 2 Not limited to Ds. So, a P may make a counterclaim to a counterclaim. 3 Claim must fulfill requirements of subject-matter jurisdiction on its own. B Rationale for Permissive Counterclaims 1 If we allow P to join any claims P may have, it seems unfair to not allow D to join claims. 2 Difficult to create a narrower provision that would allow efficient claims and refuse inefficient claims. Attempt to narrow will decrease reducing suits and efficiency. 3 Rule 42(b): The ct is able to take it apart, if they wish. 4 Inefficient to have D win suit against him and then file another suit against P. Though D is supposed to win the second suit, D may not be able to for reasons like bankruptcy, spent it all, P in another country, etc. So D should be paid now what he is entitled to. C Why are counterclaims not made strictly compulsory? 1 All the reasons for which joining of many claims are not compulsory. 2 Additionally, in asserting a counterclaim, a D, unlike P: i Cannot decide when to bring the counterclaim during SOL ii Does not have a choice of which ct to bring the claim iii Cannot choose alignment (who is P and who is D) and composition (who is brought in) of the actions parties. 3 As a result, D may suffer tactically from being sued at a time and in a ct not of his choosing. III Compulsory Counterclaims A Rule 13(a) Compulsory Counterclaim. 1 A pleading must state as a counterclaim: i Any claim that, at the time of its serving, ii The pleader has against an opposing party if the claim a Arises out of the transaction or occurrence that is the subject matter of the opposing partys claim, and Cross claims make parties opposing parties.

Civil Procedure Professor Edward Cooper b 2 Exceptions: i At the time of actions commencement, the claim was the subject of a pending action a Ds permissive counterclaim may force P to make a compulsory counterclaim. Does not require the presence of third parties over whom the ct cannot acquire jurisdiction.

Union Paving Co v. Downer Corp.: If a counterclaim is the subject of litigation pending in another
court, the counterclaim is not compulsory. But, it may be permitted as a counterclaim in present case by ancillary jurisdiction.

ii Opposing party sued on its claim by attachment or other process by which the court did not acquire jurisdiction to render a personal judgment on that claim, and the pleader is not stating any counterclaim under Rule 13 iii Governing substantive law requires P to bring related claims in separate districts. a

Southern Construction Co v Pickard (1962): Subcontractor was in charge of plumbing and heating
for Contractor. Sub sued Contractor in D.C.s in both GA and TN under the Miller Act for amounts due on the Ks. Contractor asserted a counterclaim in the 2nd suit. Subcontractor argued Contractor was barred for failure to raise it in the first suit as a compulsory counterclaim. Rule: Rule 13 was particularly directed against one who failed to assert a counterclaim in one action and then instituted a second action in which that counterclaim became the basis of the complaint. Rationale: The policy of preventing multiplicity of actions and achieving resolution in a single lawsuit of all disputes arising out of common matters is inapplicable in these circumstances. Holding: Rule 13 doesnt apply here, bc sub tried to combine suits, but had to split the suits to comply w fed statute.

Rule 13(a)s transaction or occurrence test 1 Cooper says transaction or occurrence uses the same test as the Rest. of Judgment in claim preclusion. There are some circumstances where it is broader though. 2 Moore v New York Cotton Exchange: Transaction is a word of flexible meaning. It may comprehend a series of many occurrences, depending not so much upon the immediateness of their connection as upon their logical relationship. 3 Four tests have been suggested for determining whether claims comprise the same transaction i Are the issues of fact and law raised by the claim and counterclaim largely the same? ii Would res judicata bar a subsequent suit on Ds claim absent the compulsory counterclaim rule? iii Will substantially the same evidence support or refute Ps claim as well as Ds counterclaim? iv Is there any logical relation btw the claim and the counterclaim? a b Most widely used test. Principal consideration rests on judicial efficiency and economy rather than counterclaims relation to facts+issues. c d This is the approach in Heyward-Robinson and Jones. In determining whether there is a logical relationship, one should look to whether there is an intuitive relationship between the claims at the pleading stage. United States v. Heyward-Robinson.

Civil Procedure Professor Edward Cooper i Counterclaims come early in the proceedings. You probably will not know many of the facts at that stage. e Criticism: Though there is a logical relationship, it could still not be a compulsory counterclaim. i Ex. Two contracting cos, B and C. B hires C for a NY job as a sub. C hires B for a SF job as a sub. The dispute btw them is governed by the same boilerplate traditionally adopted for contractorsubcontractor relationships. B sues C for breach of NY subK. Does C have to bring up Bs sub job in SF as a compulsory counterclaim? There is a logical relationship, but not fair. ii Jones v Ford Moto Credit Co. (2d Cir. 2004): Class-action Ps sue Ford for racially discriminatory pricing. D counterclaims Ps to recover the Ps defaulted payments. Is this a compulsory claim? Holding: This is not a compulsory counterclaim, bc there is no logical relationship. Focuses on trial efficiency and convenience part of Rule 13(a)s purpose. Relationship is logical only in sense that discriminatory pricing is the but for cause of default. They are not so closely related that discussing them together would be judicially efficient. C ANCILLARY JURISDICTION 1 We have ancillary jurisdiction because of the 28 U.S.C. 1367, not bc of Rule 13(a) 2 Permissive v compulsory: i Permissive counterclaims: No fed jurisdiction unless they have independent jurisdictional grounds. ii Compulsory counterclaims: Compulsory counterclaims are ancillary to the claim asserted in the complaint and no independent basis of fed jurisdiction is required. a

United States v Heyward-Robinson Co. (2nd Cir. 1970): P had a K w D for a federal job and a nonfederal job. P sued D for payment due on fed job. D denied liability on fed job and counterclaimed for both fed and non-fed job. P denied liability on Ds counterclaims and reply counterclaimed to recover D money due on non-fed job. P won trial. Issue #1: Was there an independent basis for fed jurisdiction over the non-fed counterclaims? No: No diversity jurisdiction and no jurisdiction under Miller Act, bc non-fed was not public work. Issue #2: Were the non-fed counterclaims compulsory or permissive? Permissive v. compulsory: If the counterclaim is permissive there is no fed jurisdiction unless they rest on independent jurisdictional grounds. If they are c ompulsory counterclaims, they are ancillary to the claim asserted in the complaint and no independent basis of fed jurisdiction is required. Rule: Ct cited Rule 13(a)(1)(A). Case law held that the requirement for the same transaction or occurrence has been broadly interpreted to require not an absolute identity of factual backgrounds for the two claims, but only a logical relationship btw them. Transaction is a word of flexible meaning and it may comprehend a series of many occurrences, depending not so much upon the immediateness of their connection as upon their logical relationship. Application: Non-fed counterclaims have a logical and immediate relationship to claims on the fed job. Ex. Same parties, D had a right to terminate both if there was breach, D had right to withhold money due on one to apply against damages suffered on another, payment was in a lump sum

Civil Procedure Professor Edward Cooper for both, single insurance policy covered both jobs, impossible for D to have litigated fed job wo including non-fed job bc payments made by P could not be allocated btw the jobs. So, non-fed counterclaims arose out of the transaction or occurrence which is the subject matter of the fed job and are compulsory counterclaims under Rule 13(a). So, the non -fed counterclaims were ancillary. To decide otherwise would result in fragmentation of litigation and multiplicity of suits, contrary to one of the purposes of Rule 13(a). Holding: Ct affirms finding that the claims are to be considered together. D Consequences of failure to plead a counterclaim 1 Rule 13(a) is silent as to the consequences of failing to plead a compulsory counterclaim. 2 An unasserted compulsory counterclaim cannot be raised in a subsequent suit in a fed ct. 3 Cts differ as to the proper theory for this conclusion. The rationales have diff effects on the subsequent suit. i Waiver: Bc you didnt state the counterclaim, you waived it. Doesnt explain anything, just a label. ii Estoppel: Doesnt explain anything, just a label. iii Res judicata: Your failure to state the counterclaim bars it. However, this is circular bc one of the tests of compulsory counterclaim is whether the claim would been barred by res judicata. a b The predominant explanation is res judicata. Effect of res judicata: i Res judicata only occurs after a final judgment on the merits. So, until there is a final judgment, the party has not lost the claim and can argue that they havent lost it. ii Res judicata tends to be rigid. Very few excuses are allowed. a If ct doesnt think about the loss as a bar by res judicata, it is more likely to allow the claim, bc R13(a) seems more lenient. Otherwise, res judicata is rigid in holding that counterclaims are barred after a final judgment. b Ex. D drives Ps jeep while P is a passenger and there is an accident. In the first lawsuit, P sues D, and D is defended by a lawyer retained by Ps insurance company. D settles. In the second lawsuit, D sues P for his injuries. Though this was a compulsory counterclaim, the 1 st Cir. said because the circumstances in the first trial involved a conflict of interest by the lawyer retained by Ps insurance company, it should excuse Ds failure to make the

counterclaim. This is far easier to find when you dont think about issue under label of res
judicata. 4 Rule 13(e) Counterclaim Maturing or Acquired After Pleading. The court may permit a party to file a supplemental pleading asserting a counterclaim that matured or was acquired by the party after serving an earlier pleading. 5 Rule 13(f) Omitted Counterclaim: The court may permit a party to amend a pleading to add a counterclaim if it was omitted through oversight, inadvertence, or excusable neglect or if justice so requires. i Safeway Trails, Inc. v Allentown & Reading Transit Co.: The ct granted leave to amend when excuse for failing to plead an omitted counterclaim was that Ds lawyer had not read the fed rules.

Civil Procedure Professor Edward Cooper ii The counterclaim is after SOL causing the claim to be barred if asserted independently, can the counterclaim relate back to the filing of the original action under Rule 15(c)(1)? Seems arguable. 6 D fails to bring a compulsory counterclaim in fed ct. Is D barred from bringing it up in a fed and state ct? i Congress seemed to intend to bar D from bringing the counterclaim in a fed ct, based on res judicata. ii Congressional intent is unclear though as to the effect of such failure on a State ct action.

DEFENSES & CLAIMS IN LATER SUITS

I Defense preclusion under res judicata A Defense preclusion: All defenses to a claim that were and might have been asserted in the first are barred in the second. 1 Both precedent and policy require that res judicata bar a counterclaim when its prosecution wo uld nullify rights established by the prior action. 2 Applies to permissive claims. B Compulsory counterclaim rules effectively supersede defense preclusion. 1 So, compulsory counterclaims that are not raised under Rule 13(a) may not be raised in subsequent litigation. 2 In most situations the broad sweep of compulsory counterclaims preclusion makes it unnecessary to consider whether and how defense preclusion applies. 3 Generally, a defendants failure to raise a counterclaim that is not compulsory does not prec lude a later action. C Exceptions: Court may waive a bar to a defense if 1 There was a good reason not to bring it up in the original claim 2 It was not litigated before 3 Ex. Landlord sues tenant for first year on a 5 year lease. Tenant raises a defense that land isnt as good as landlord claimed. Landlord wins. Second lawsuit occurs during second year of 5 year lease. Tenant raises a defense that there is no contract between them because he never signed the lease. i Ct said that defense was not precluded bc defense had not been litigated and there could be good reasons why D did not advance the defense, such as: a b Lack of evidence at time of first suit Cost of defense was too great given the stakes of the lawsuit Second lawsuit was foreseeable and never would have occurred if D had raised the defense P relied on there being a lease after first suit. Had he known otherwise, he could have rented land to someone else. D Party must use or lose a defense in the first case, bc it might be precluded if its prosecution would nullify rights established in the prior action. 1 McDonalds v Martino: Martino had a McDonalds franchise w an anti-compete clause. McDonalds sued him for breaching anti-compete, and they settle. Martino sued McDonalds in second suit, claiming that enforcement of the franchise agreement violated the Sherman Antitrust Act.

ii On the other hand, it would have been good for D to raise the defense because: a b

Civil Procedure Professor Edward Cooper Rule: Rule 13(a) has no effect bc Martino never filed a pleading. Martinos claim is precluded bc its prosecution would nullify rights established by the prior action. 7 th circuit made a CL rule. E Raising a defense and later suing when no compulsory counterclaim rules apply 1 If D raises a defense only to defeat his adversarys claim, he may bring a later suit on that defense i Linderman Machine Co. v Hillenbrand (Ind. 1920): L sued H for the purchase price of a machine. Hs defense was that the K was made on fraudulent misrepresentations. Ct found for H. H sued L to recover damages for fraud. Holding: Action is not barred where Ds defense does not involve the right to recover damages and there is no compulsory counterclaim rule ii Reflects the fact that jurisdictions do not want to force D to litigate something. Issue preclusion can help to improve efficiency and consistency in the presence of this rule 2 However, if Ds defense requires calculation of damages to defeat Ps claim (i.e., he hurt me more than I hurt him), a later suit on that defense is barred i Mitchell v Federal Intermediate Credit Bank (S.C. 1932): P sued D for recovery of value of some potatoes he gave as security for two notes worth $9K. D sold potatoes for $18K, but never gave any proceeds to P. In a previous action, D sued P for payment of notes. P asserted as a defense the same facts of this claim, but did not counterclaim. In this claim, D contended that Ps claim w as barred by his defense in the other claim, which went to judgment. Rule: Party cannot raise a defense to offset an amount sought in a contract, then sue in a different claim for that offset. He cannot use the same defense, first as a shield, and then as a sword. F Non-preclusive valid and final judgments: 1 Rest. 2d of Judgments 20(1) sets forth certain valid and final judgments that are not preclusive: (a) dismissal for lack of jurisdiction, dismissal for improper venue, dismissal for nonjoinder or misjoinder of parties; and (b) election or direction of a nonsuit. i This list is not exhaustive and those dismissals that are not expressly listed may be considered adjudication on the merits if the D must incur the inconvenience of preparing to meet the merits.

CROSS CLAIMS
I Cross Claims A Rule 13(g) Crossclaim Against a Coparty. 1 A pleading may state as a crossclaim i any claim by one party against a coparty ii either: a arising out of the transaction or occurrence that is the subject matter of the original action or of a counterclaim, or b relating to any property that is the subject matter of the original action. 2 Indemnification: The cross-claim may include a claim that the coparty is or may be liable to the crossclaimant for all or part of a claim asserted in the action against the cross-claimant. 3 Cross claims are not compulsory

Civil Procedure Professor Edward Cooper i D might like the ct of choice and the jury ii D might want to wait a while. iii D might not like the parties involved. B Why are cross-claims so limited? 1 P can become a mere bystander as Ds litigate their claims that have nothing to do with P 2 Jury may spend less time considering Ps claim in light of cross-claimants claims. This is especially true if cross-claimants are more injured than P. 3 Cross-claims can affect Ps recovery i Bc there may be a finite amount of money available among Ds, Ps recovery could effectively be reduced ii Allocation of responsibility among Ds may change. If cross-claimant is more sympathetic in his crossclaim, jury may allocate him a smaller chunk of the responsibility. 4 P could be associated with unfavorable cross-claimant. Cross-claiming makes the cross-claimant like a co-P. That association could affect the jury. II Issue preclusion among co-parties A Ex. P was in driver D1s car, and there was an accident with D2. P sues D1 and D2. No cross -claim; jury finds 50-50 liability between D1 and D2. D1 sues D2. May parties raise issue preclusion on question of neglignece (not apportionment different issue)? B Three methods of determining issue preclusion among co-parties 1 There is no preclusion between co-parties unless one of them made a claim against them other i If there was no cross-claim, they were not adversaries, and they should be free to present a united front and say that neither of them were at fault. 2 Restatement (Second) of Judgments: It does not depend upon whether there was a claim between coparties, but rather if in fact they litigated as adversaries i If one D took the position that it was the other Ds fault (or that D was not as at fault), they become adversaries in fact and preclusion should apply. 3 There is always issue preclusion. Because they were parties, D had an opportunity to litigate the crossclaim, and there is no reason to give D a second opportunity to litigate i This is the result of non-mutual preclusion, which is seeping into the co-party realm a Ex.P sues D1 for infringing the patent. In the first lawsuit, the patent is held valid. P then sues a D2 for infringing the same patent. D2 is not bound by the finding in the first lawsuit that the patent is valid. i Traditionally, there was mutuality in preclusion: If the patent was found invalid in the first lawsuit, P could relitigate it in the second lawsuit ii There has been a movement towards non-mutual preclusion, whereby a non-party may take advantage of the prior judgment even though he would not have been bound by an adverse judgment unless it is unfair. Thus, D2, a non-party, can advantage of that prior judgment in its lawsuit.

Civil Procedure Professor Edward Cooper C As a result of issue preclusion among co-parties, there is a strong incentive to make a cross-claim even though it is permissive III Cross-claims make parties opposing parties: A B D1 cross-claims against D2 D1 and D2 are opposing parties

Earle M. Jorgenson Co. V T.I. United States, Ltd.: Ct defined opposing parties as parties that formally
oppose each other on a pleaded claim, such as Ps and original Ds, or third-party Ps and third-party Ds they have joined.

IV There may be liberal interpretation of transaction or occurrence when there is a mess that, at least for pre -trial discovery, could be better handled in a single trial, w the option of 42(b) severance later on. A

Lasa Per LIndustria Del Marmo Societa Per Azioni v Alexander (6th Cir. 1969): Among pleadings were a
cross-claim filed by D1 subcontractor, Alexander, against the prime contractor, its surety and the City of Memphis, D2; a counterclaim filed by the prime contractor D2 against Alexander D1; and a third-party complaint filed by Alexander D1 against the architect D3. The third-party complaint was treated by TC as a cross-claim against the architect as was counterclaim of prime contractor D2 against D1. Rule: The words transaction or occurrence are given a broad and liberal interpretation in order to avoid a multiplicity of suits. The ct asks if there is a logical relationship btw the cross claims (including the third party complaint against the architect) and the transaction or occurrence that is the subject matter of the complaint and the two pending counterclaims. Application: Yes. Although different subKs are involved, along w the prime K and specifications, all relate to the same project and to problems arising from marble used. The principal issue is who is responsible for the marble problems which arose on this job. Blame is put on many parties. Many of the same or closely related factual and legal issues necessarily will be represented under this complaint, counterclaims, and cross-claims in the resolution of these cases. If during trial the ct determines that separate trials is necessary, Rule 42(b) allows severance.

Arguable whether P can cross-claim a co-P A Yes: 1 Harrison v. M.S. Carriers, Inc.: A P can cross-claim a co-P as long as it fulfills both requirements of Rule 13(g), which are (1) it has to be a claim by one party against a co-party and (2) it must arise out of the same transaction or occurrence as the original counterclaim. B No:

Danner v Anskis: Rule 13(g) doesnt allow a P to state a cross-claim against a co-P a claim arising out of
the transaction or occurrence which is also the subject matter of their common complaint against the D. Rationale: Purpose of Rule 13(g) was to permit D to state a cross-claim against a co-D growing out of the same transaction or occurrence that is the subject matter of the original action, and to permit a P against whom a D has filed a counter-claim to state a cross-claim against a co-P a claim growing out of the transaction or occurrence that is the subject matter of the counterclaim. A cross-claim is intended to state a claim which is ancillary to a claim stated in a complaint or counterclaim which as previously been filed against the party stating the cross-claim.

Civil Procedure Professor Edward Cooper Holding: Hypo: P sues both drivers in a collision. How does a cross claim against the drivers affect P? The effect is very variable.

IMPLEADER (BRINGING PARTIES INTO SUIT)

I Introduction A Reasons for allowing impleading 1 Efficiency: When there is a common set of questions, it is easier to litigate it all at once 2 Interest in getting consistent findings. If D had to lose first to indemnify, there is a possibility that D would lose the indemnification suit or the third party would indemnify less than what is fair. B Reasons why D would want to bring in a third-party 1 D is hurt too and wants to assert a claim against third-party 2 D wants to spread liability to a third person 3 Under joint-and-several liability with no right of contribution i Sympathy for D if third party D looks really bad ii May reduce size of judgment against D iii Executing on the judgment: Though there is no right of contribution, it may be easier for P to get the judgment from third party D, which can induce P to get it from him rather than D 4 Under several liability with no indemnification i Having third party D may affect apportionment bc jury thinks its entering a collectable judgment against the third party D. Otherwise, if the third party D was not in the action, he would not bound by the judgment. C Limits 1 D can bring in a third party D only if third party D is or may be liable to D for Ps claim i Rationale: P has broad freedom in choosing who will be brought into the suit. If P chooses to sue only one D, there is a higher threshold for D to be permitted to bring others in. ii Exception: Rule 14(c) says that if it is an admiralty or maritime claim, D can bring in a third party D who may be wholly or partly liable either to the P or to the third-party P for remedy over, contribution, or otherwise an account of the same transaction, occurrence, or series of tr ansactions or occurrences. 2 Consequently: i Several liability with no right to indemnification Outside of Rule 14 and cannot be impleaded. ii Joint-and-several liability with no right to contribution Outside of Rule 14 and cannot be impleaded. D Compared with Rule 13(h) joining third parties upon a cross-claim or counterclaim 1 Rule 13(h): P v. D1 and D2 (D2 brought in by R. 13(h)) i Cross-claims between D1 and D2 are permissive ii Once there is a cross-claim, D2 may have compulsory counterclaims against D1 2 Rule 14: P v. D1 v. T (T brought in by R. 14) i T immediately has compulsory counterclaims against D1 (Rule 14(a)(2)(B)). ii Ts and claims against P are permissive (Rule 14(a)(2)(D).

Civil Procedure Professor Edward Cooper Ts Claims Against D Ps Claims Against T

R. 13(h) (P v. D and T) Always permissive (cross-claim) (R. 13(g)) May be compulsory (?) (R. 13(a)) R. 14(a) (P v. D v. T) May be compulsory (R. 14(a)) Permissive (R. 14(a))

II

Bringing in a Third Party D A Rule 14(a): D (third party P) may bring in a non-party (third party D): 1 Who is or may be liable to third party P for all or part of Ps claim against third party P 2 No leave required if third party P files no later than 14 days after original answer; other needs leave. i Factors to consider to determine whether to grant leave to implead a third party D: a

Too, Inc. v Kohls Department Stores, Inc. (S.D.N.Y. 2003):

i First, third-party complaint must be appropriate and foster the interest of judicial economy. ii If that is established, these factors are to be considered: Whether the movant deliberately delayed or was derelict in filing the motion; Whether impleading would unduly delay or complicate the trial; Whether impleading would prejudice the third-party defendant; and Whether the third-party complaint states a claim upon which relief can be granted.

iii The court must balance the benefits derived from impleader--that is, the benefits of settling related matters in one suit--against the potential prejudice to the plaintiff and third-party D. A D.C. has considerable discretion in deciding whether to permit a third-party complaint. 3 P doesnt need to make a claim against third-party D. i Jeub v B/G Foods, Inc. (Minn. 1942): P sues D, claiming Ds restaurant served ham that made Ps sick. D brought T, claiming if ham is contaminated, T is at fault bc they canned the ham used. T made a motion to vacate. Rule: Rule 14 permits the impleader of a party who is or may be liable. Doesnt matter if the P does or does not file an independent action against third-party D, bc D has a right to invoke a procedure which will determine rights of the parties concurrently with that of the basic proceeding B When two Ds want to implead the same third party D (P v. D1 and D2, D1 and D2 want to implead T) 1 Rule 14(a) is limited to impleading non-parties. So if D1 impleads T, then T is no longer a non-party for D2. 2 Options i One (circuitous) option: Court can separate the lawsuit into two lawsuits by Rule 42(b) into P v. D1 and P v. D2. Then, D2 can implead the third-party D. Then, judge can consolidate the lawsuits by Rule 42(a) ii Alternatively, court may find that T, once D1 has implead T, T is a co-party. Under Rule 13(g), D2 can cross-claim against T. a

Earle M. Jorgenson Co. V T.I. United States, Ltd.: P sued seven Ds for clean-up costs. D1
impleaded third-party D Tosti. D2 cross-claimed against Tosti for indemnification. Tosti moved to dismiss, claiming he was not a co-party under Rule 13(g)

Civil Procedure Professor Edward Cooper Holding: D2 could cross-claim against Tosti bc they were co-parties; the only other possible classifications of Tosti under the rules were non-parties and opposing parties, neither of which fit the relationship between Reed and Tosti. i Cooper: Not an obvious reading of co-party, but it gets you what you want. C Third party Ds rights and obligations 1 Obligations i Must assert defenses against third party Ps claim by Rule 12 ii Must assert compulsory counterclaims against third party P by Rule 13(a) iii If P asserts a claim against third party D, third party D must assert Rule 12 defenses and Rule 13(a) counterclaims. 2 Allowed i May assert permissive counterclaims against third-party P by Rule 13(a) ii May assert cross-claims against other third party Ds by Rule 13(g) iii May assert against P any defense that the third-party P has to Ps claim iv May assert claims against P arising out of same transaction or occurrence that is the subject matter of Ps claim against third party P (permissive!) by Rule 14(a)(2)(D) a Ct argues there is a distinction wo a difference btw Rule 14s permissive counterclaim and Rule 13(a)s compulsory counterclaim. i Heintz & Co v Provident Tradesmens Bank & Trust Co. v. Kerr: Rule: The only distinction btw a counterclaim under Rule 13(a) and this claim under Rule 14 is that D must plead his counterclaim under Rule 13(a) if it grows out of the same transaction or occurrence, whereas under Rule 14, the third party may plead his claim for relief. But this has no difference. The ancillary nature of the claim is not to be determined by whether the pleader must or may assert it, but by its relation to the transaction that is the subject of the main suit. v If P asserts a claim against third party D, third party D may assert any Rule 13(b) counterclaim and any Rule 13(g) cross-claims against P. vi Third party D may implead non-parties who is or may be liable to 3rd party D for all or part of the claim against Third party D by Rule 14(a)(5). D Third Party Ps Rights 1 Once third party D is joined by Rule 14, third party P may join as many claims as he wants under Rule 18 (though there must be supplemental jurisdiction). E Ps rights 1 May assert claims against third party D arising out of same transaction or occurrence that is the subject matter of Ps claim against third party P under Rule 14(a)(3). i Third party D must then assert Rule 12 defenses and Rule 13(a) counterclaims. Third party D may assert any counterclaim under Rule 13(b) or cross-claims under Rule 13(g). F Rule 14(a)(4): Any party can move to strike 3rd party claim or for its severance or separate trial Rule 14(b): When there is a counterclaim against a P, P may bring in a 3rd party D as a D could III Bringing in a Third Party P A

Civil Procedure Professor Edward Cooper IV Supplemental Jurisdiction A 1367(a) gives supplemental jurisdiction for D to implead a third -party D in an original action based on diversity jurisdiction. Ex. P (Michigan) v. D (Texas) v. T (Texas) B 1367(b) says there is no supplemental jurisdiction for P to make a claim against T when the original action is based on diversity jurisdiction. 1 e.g., P (Michigan) v. D (Texas) v. T (Michigan) 2 SC and 1367(b) want to ensure that there is subject-matter jurisdiction C There is supplemental jurisdiction available for T to makes claims against P 1 Rationale: i P had the choice of forum where he could most effectively assert his claims. Bc of Ps choice, he could not join a non-diverse D. ii Third-party D, on the other hand, had no choice in coming into the action and no choice in the forum. P should not be allowed to take advantage of the third-party D through a fortuitous impleader. iii Additionally, there is a possibility of collusion between P and D against the third-party D D It is unclear if P has supplemental jurisdiction for compulsory counterclaim against T once T has asserted a claim against P. 1367(b) expressly says no, but Cooper says yes, bc it would be otherwise unfair.

Claim D impleads T P makes a claim against T T makes a claim against P P makes a counterclaim to Ts claim

Supplemental Jurisdiction Available? Yes No, if breaks diversity Yes Probably, though contrary to 1367(b)s text.

PERMISSIVE JOINDER
I History A Common Law 1 Joinder of parties was controlled by substantive rules of law, rather than notions of judicial economy and trial convenience. 2 Ps who were asserting joint rights were compelled to join their respective claims in a single act. There was no such thing as permissive joinder. B Equity Courts: Allowed all persons having an interest in the subject matter of the action or in the relief demanded to join in a single proceeding. 1 Many state cts read the equity ct into imposing two requirements: Joinder was restricted to cases in which all Ps were interested in both the subject matter of the action and all the relief demanded. C

Ryder v Jefferson Hotel Co. (S.C. 1922): Hotel woke up husband and wife in middle of night. They left.

Civil Procedure Professor Edward Cooper Rule: If a claim is united, all the causes of action must affect all parties of the action (except in cases for foreclosure of mortgages), not require difference places of trial, and must be separately stated. Personal torts committed on two ppl are usually several claims. For them to be joined, there must be legal bond btw the parties injured, such as a partnership, that causes a wrong and consequent damage common to all. Husband wife is not a legal bond, bc not every existing legal relation is a bond. So, it is a several claim, not joint. II Permissive Joinder under FRCP 20 A Rule 20 Permissive Joinder of Parties 1 (a)(1): Ps may join if i They assert any right to relief jointly, severally, or in the alternative ii w respect to or arising out of the same transaction, occurrence, or series of transactions and occurrences, and a Same transaction, occurrence, or series of transactions and occurrences: Usually a logical relationship test. Like compulsory counterclaim, look to judicial economy and convenience. iii Any question of law or fact common to all these Ps will arise in the action a Note that it does not need to be contested may be admitted. 2 (a)(2): Ds may join if i Right to relief is asserted against them jointly, severally, or in the alternative ii w respect to or arising out of the same transaction, occurrence, or series of transactions and occurrences, and iii Any question of law or fact common to all these Ds will arise in the action 3 (a)(3): P or D do not need to be interested in obtaining or defending against all relief demanded 4 (b): Ct may issue protective orders to protect a party against embarrassment, delay, expense, or other prejudice that arises from including a person against whom the party asserts no claim and who asserts no claim against the party. Ex. Of protective order: an order for separate trials 5 Rule 18: Once a party is joined, P can assert as many claims against them as he wants under R. 18. B Compare to Rule 18s joinder of claims 1 Rule 18 Joinder of Claims: Doesnt demand that joined claims have anything in common, factually or legally, except that the joined claims be asserted by the same single claiming party against the same single defending party. 2 Rule 20 Joinder of Parties: Only slightly more demanding than Rule 18. C Purposes for permissive party joinder 1 Render complete justice in one action 2 Prevent multiplicity of suits D

M.K. v Tenet (D.D.C. 2002): Ps added 9 Ps. Ds argued they were unrelated and had own set of law and facts. D
requested to sever the claims and deny Ps Rule 20 joinder. Test: 1 Rule 20(a)s transactional test considers if Ps claims are logically related events that the ct can regard as arising out of the same transaction, occurrence or series of transaction or occurrences.

Civil Procedure Professor Edward Cooper Application: Yes, Ds actions against P is logically related, since it shows an overall pattern of policies and practices aimed at denying effective assistance of counsel to Ps. Each P alleges that Ds policy and practice of obstruction of counsel has damaged the P and each requests declaratory and injunctive relief. 2 Rule 20(a)s second prong requires that a q of law or fact common to all plaintiffs will arise in the action. Application: Yes, q of law or fact common to Ps include Ds notice restricting Ps counsel, Ds common scheme or pattern of behavior to deny P to discuss w counsel, unauthorized records about Ps, failure to use proper safeguards for the records, Ps first amended complaints contains similar allegations, etc. 3 Rule 20s intends to promote trial convenience, expedite final determination, & prevent multiple lawsuits. Application: Joinder or nonseverance of the 6 existing Ps and their new claims under Rule 20(a) would promote trial convenience, expedite the final resolution of disputes, and act to prevent multiple lawsuits, extra expense to the parties, and loss of time to the ct and the litigants in this case. E Rule 21. Misjoinder and Non-Joinder of Parties 1 Not grounds for dismissal 2 Parties can motion for or court sua sponte may drop or add any party at any time. 3 Ct may also sever a claim against a party. F Consolidation 1 Rule 42(a) Consolidation. If actions before the court involve a common q of law or fact, the court may: (1) join for hearing or trial any or all matters at issue in the actions; (2) consolidate the actions; or (3) issue any other orders to avoid unnecessary cost or delay. 2 Tanbro Fabrics Corp v Beaunit Mills, Inc. (N.Y. 1957): Buyer moved to consolidate multiplicity of claims. Rule: It is no longer a bar to joinder and consolidation that there is not an identity of duty or K upon which to assert alternative liability. It is still necessary to find that the alternative liability arises out of a common transaction or occurrence involving common questions of fact and law. But this is not a rigid test. It is to be applied w judgment and discretion, in the balancing of convenience and justice btw the parties. Right to joinder and the privilege to obtain consolidation is always counterbalanced by the power of the ct to grant severance or to deny a consolidation, if prejudice or injustice appear.

MANDATORY JOINDER
I Traditional Concept of Indispensible Parties A

Bank of California Nat. Assn v Superior Ct (Cal. 1940):

Issue: Whether the absent parties are indispensible? Rule: While necessary parties are so interested in the controversy that they are normally made parties in order to enable the court to do complete justice, yet if their interests are separable from the rest and particularly where their presence in the suit cannot be obtained, they are not indispensable parties. Indispensible parties are those wo whom the ct cannot proceed. Test: A party is indispensible when a judgment in favor of one claimant for part of the property or fund would necessarily determine the amount or extent which remains available to the others. Ex. an action by one creditor

Civil Procedure Professor Edward Cooper against assignees for the benefit of creditors, seeking an accounting and payment of his share of the assets, the other creditors are indispensable. Application: No. Action was against petitioners personally, not the estate, and a judgment would not affect the absent Ds rights. II Reason why joinder of parties is not always mandatory A B Ps may want to sue at different times or in different courts One P may not want to join with another P because: 1 Other P is unsympathetic 2 Magnitude of joint damages may prevent the jury from being as generous as when the actions are separated C D Great confusion may be generated by joining parties. P may not want to sue all of the Ds 1 P may be friends with the passenger of the car in which he was injured but not the driver of the other car. 2 Some of the Ds may be very sympathetic or tough adversaries 3 R19 has great deference to concern of P not wanting to sue all Ds. Only when there is great reason must parties be joined. III 1367(b): No supplemental jurisdiction for Ps claims against parties joined under Rule 19 IV Determining whether a party is necessary or indispensible A Types of parties 1 Indispensable: Parties who must be joined if they can be joined. According to Provident, if they cant be joined, the ct must dismiss the lawsuit. 2 Necessary: Parties who must be joined if they can be joined. According to Provident, if the ct decides to proceed despite their absence, they are thereby deemed necessary. B Rule 19(a): Figure out if the person must be joined if possible 1 Person must be joined if: i Hes subject to service of process and ii His joinder wont deprive the court of subject-matter jurisdiction must be joined if: iii One of the following is true a b If absent, ct cannot accord complete relief among existing parties, or He has an interest in the subject of the action and disposing of the action in his absence may: i Impair or impede his ability to protect his interest, or ii His absence would subj parties to substantial risk of double, multiple, or inconsistent obligations a Inconsistency in the sense that if sued separately, D could lose both lawsuits, but it is not possible that D could lose to both of them b Ex. Trust fund established where body of trust will be paid to all surviving grandchildren when youngest reached 21. P1 says that he is the sole surviving grandchild; P2 says the same. If one sues and wins, he gets it all. 2 If the person must be joined, then: What if other sues? If claim is barred by res judicata, not good for P2. If trustee if liable, not good for the trustee

Civil Procedure Professor Edward Cooper i If it is possible to join, join the party ii Otherwise, go to Rule 19(b) 3 If person fails (i) and (ii) above but meets (iii), go to R. 19(b) to determine if the action may proceed i Consequently, action may be dismissed if a mandatory party would break diversity jurisdiction C Rule 19(b): Determine whether the action can proceed in th e partys absence 1 Ct is to determine, in equity and good conscience whether to proceed. 2 Ct is to consider: i Extent which Ps absence may prejudice P or existing parties ii Extent wo which any prejudice could be lessened or avoided by a b Protective provisions in the judgment; Shaping the relief; or i Ex. D has a unique and valuable painting that he Ks to sell to B. P says he has a right of first refusal and sues for specific performance wo joining B. If P prevails, B does not get picture. To protect B, court may limit Ps award to damages. B could sue D for breach of K and prevail on that too, but D could very well be liable for both. c Other measures The extent of the relief that may be accorded given the parties joined iii Whether a judgment rendered in the persons absence would be adequate a iv Whether P would have an adequate remedy if actions were dismissed for nonjoinder. 3 If you decide that the action cannot proceed without the party, the party is indispensable i This should be determined in a pragmatic, case-specific fashion. Consider the costs and risks. ii Ex. Provident Tradesmen, Supreme Court found that 3rd party was not indispensable because by the time the case came to appeal, it was clear that his interests had not been affected by non-joinder. COA could not dismiss bc 3rd partys interests were in potential peril. D Joint tortfeasors 1 Joint tortfeasors are permissive parties and therefore are not required to be named in a single lawsuit. Permissive parties under R. 20 (see amendment notes from 1966). D can impled by R. 14. i Temple v Synthes Corp (1990): P had surgery to implant device. Devices screw broke off. P sued manufacturer Synthe in fed ct under diversity jurisdiction. P sued hospital and dr in state ct. Synthes didnt try to bring dr and hospital into the fed action through Rule 14(a)s third-party complaint. Synthes instead filed a motion to dismiss Ps federal suit for failing to join necessary parties pursuant to fed Rule. Rule: It is not necessary for all jointfeasors to be named as Ds in a single lawsuit. The Advisory Committee Notes to Rule 19(a) explicitly state that a tortfeasor w the usual joint -and-several liability is merely a permissive party to an action against another w like liability. There is nothing in Louisiana tort law to the contrary. Application: Threshold requirements of 19(a) have not been satisfied. Hospital and doctor were merely permissive parties. ii Rules were drafted under the assumption of joint-and-several liability with right of contribution

Civil Procedure Professor Edward Cooper E

Provident Tradesman Bank & Trust Co. v Patterson (1968):

Formed a template of factors to consider under Rule 19(b) 1 Ps interests i Strategic interests: Rule 19 is very respectful of Ps strategic choices ii Ps interests in having a choice of court a Usually an issue in diversity jurisdiction cases (P wants fed court but doesnt have complete diversity) b c d Would P be able to get an adequate remedy in a different court? Would P be able to go to any other court? Its rare, but it happens. Ps interest in forum is more weighty on appeal because of the interest in preserving Ps judgment than if the question had been raised before the lawsuit. Provident. 2 Ds interests: D has an interest in avoiding inconsistent relief, multiple litigation, or sole liability that he shared with another 3 Non-party interests: extent to which judgment may impair or impede his ability to protect his interest in the subj matter. 4 Public interests: Ct and public interest in complete, consistent, and efficient settlement of controversies. An example of an indispensible party 1 Republic of Philippines v Pimentel (2008): The Republic and Commission enjoy sovereign immunity and cannot be made parties. Are the Republic and the Commission Rule 19(b) parties? Rule: i Considerations in Rule 19(b) are nonexclusive. Design of the Rule indicates that determination abt whether to proceed will turn upon factors that are case specific, which is consistent w a Rule based on equitable considerations. ii In earlier rules, the term indispensible party implied rigidity that wou ld be in tension w case-specific approach. Though the Rules text has changed, the new Rule 19 has same design and to some extent, the same tension. Reqd persons may turn out not to be required for the action to proceed after all. iii Case-specific inquiry that must be followed including the directive to consider whether in equity and good conscience the case should proceed implies some degree of deference to the DC. Application: Ct determined that the action could not proceed wo the Republic and the Commission and dismissal was necessary because (1) under Rule 19(a), they were required parties, (2) under Rule 19(b), the DC and the app ct gave insufficient weight to the assertion of sovereign immunity since the claims of the Republic and the commission were not frivolous and the decision to proceed in their absence ignored the substantial prejudice those entities likely would incur, and (3) any prejudice to the stakeholder was outweighed by prejudice to the absent entities invoking sovereign immunity.