Civil Procedure I

Professor Geyh
Fall 2011

I) Scope of Rules: They shall be construed and administered to secure the just, speedy, and inexpensive
determination of every action.
A) Disqualifications
1) Bands Refuse v. Fair Lawn
(a) Procedural issue: How far can a judge get involved in case?
(b) Procedural Rule: U.S. Constitution, 14
th
, Due process
(c) Main issues used for reversal: bias, lack of notice, over-involvement of judge
(i) Allowed changing of pleading during proceedings and didnt allow Capassos to perform discovery
and investigation of new pleadings (The is the violation of due process)
(ii) ex parte communication w/ , called witnesses, inadequate notice of witnesses, created new issues, ,
questioned witnesses (attacked witnesses), ruled on admissibility of his own exhibits,
(iii) misused prosecutions documents, appointed amicus curiae (uncommon at the trial level).
(d) Problem began when the plaintiffs lawyer was not zealous, so the judge took over
B) 28 USC 455 Judicial Disqualification
1) When impartiality may be reasonably questioned. There are many instances where impartiality may be
questioned and include bias of parties or evidence, financial interests, relationships. Judge must stay
informed about familys holdings and interests. Amount must be consequential.
C) Caperton v. Massey, 129 S. Ct. 2252
1) Caperton won $50M verdict and Massey appealed. During appeal, Massey CEO Don Blankenship worked to
get Justice Benjamin elected to the court by donating over $3M. Benjamin was elected and sat for the appeal
2) Issue: Should Benjamin recuse himself because of potential due process violations
3) SC held that there is a serious risk of actual bias because of Blankenships relationship with Benjamin.
Because of the probability of bias the 14
th
Amendment requires Benjamin to recuse himself
(a) Constitution requires recusal on any probability of bias. 455 requires it on appearance

II) Avoiding Litigation
A) Why do people settle?
1) Reduce risk. Controlling court cost. Avoid embarrassment. Reduce Delay. Promote efficient resolution.
time, money, liability, informal resolution
2) Incentives for lawyers
(a) Costs (hourly or contingency)
(b) Time (wasted time on losing issue)
3) Incentives for judges
(a) Time (docket length)
4) Disadvantages
(a) No precedent, no vindication of rights, preferences party with greater bargaining power
B) Rule16: Pretrial conferences; scheduling
1) Basics
(a) Governs pretrial conferences and scheduling orders
(b) Mandates scheduling orders (for discovery)
(c) 16(a) - Authorizes pretrial conferences (including pretrial settlement conferences)
(d) 16(c)(2)(I) Settling dispute under statute or local rule
(e) 16(f)(1)(B) - can force the parties to get together, but not to settle
2) Kothe v. Smith
(a) Judge calls for parties to settle under R16(f)1B. offers to settle and judge sanctions into settling
because they were recalcitrant and was acting in good faith
(b) AC Cannot use Rule16 to force parties to involuntarily compromise
C) Cost of Litigation
1) Generally parties pay their own fees which prevents drawn out trials. If losing party paid then there would be
less close cases litigated
(a) Exception for Civil Rights cases. Judge can make defendant pay:
(i) Allows for those who cannot afford action to obtain relief
(ii) 1988 allows for recovery when relief sought is not monetary ( only pays if they lose)
(b) Contingency fee agreements exist to help those who cant afford it get relief
2) Venegas v. Mitchell
(a) Governed by 42 USC 1983
(i) Substantial and not procedural statute
(ii) When defendant acts under color of state law, violates federal or statutory rights of another
(b) Entered contingency agreement and they won the case. Paid the attorney the court-ordered fee but
refused to pay attorney the contingency fee.
(c) Ruling: Court-awarded fees do not supersede any prior agreement b/t client and counsel

III) Civil Procedure II Preview
A) Service of Process Rule4-Due Process: defendant must know he is being sued
B) Personal Jurisdiction A court may exercise coercive authority over a defendant only if it is fair and reasonable
justification to do so
1) Minimum Contacts need logical connection between court authority and parties
C) Venue cases should be litigated in a convenient venue (28 USC 1391)
1) Two acceptable sites
(a) Where defendant resides
(b) Where events giving rise to the suit occurred
D) Subject Matter Jurisdiction - courts must have governmental authority to decide cases
1) State courts hear state & federal questions and issues
2) Federal courts Article III and 28 USC 1332 (Diversity) 1331 (Fed. Question) 1367 (Supplemental)
(a) Diversity Jurisdiction - creation of a federal forum to help eliminate bias from state courts
(i) $75,000 or more at issue; AND
(ii) Complete diversity of citizenship between both parties
(1) Must reside (and intend to remain) in different states
(b) Federal Question Jurisdiction - state courts may not interpret the federal question correctly
(i) Questions involving U.S. Constitution, federal statutes & regulations
(c) Supplemental Jurisdiction - If courts have governmental authority to decide one of plaintiff's claims,
efficiency dictates they should have authority to decide related claims
(i) Federal courts can hear both the federal and state questions from same claim

IV) Rule11: Signing of Pleadings, Motions; Representations to Court; Sanctions
1) RuleApplies to All Parts of Trial (except discovery) to encourage non-frivolous law suits
B) R11(a) all pleadings and motions must be signed
C) R11(b) by signing the paper, you are undertaking the inquiry reasonable under the circumstances.
1) Not filed for improper purpose (harass, delay, increase cost)
2) Warranted by law or non-frivolous pleading for extension of the law
3) Allegations have or will have evidentiary support after investigation or discovery
4) Defenses have or will have evidentiary support after investigation or discovery
D) R11(c) Sanctions
1) If R11(b) is violated, court may impose sanctions, after giving notice and opportunity to respond, by:
(a) motion - offending party has 21 days after notice to withdraw or change offending document;
(b) sua sponte - by show cause order
(c) Nature and limits of sanctions (nonmonetary and monetary available) and goal is deterrence
(d) Limits - monetary sanctions unavailable
(i) For frivolous law claim against under b(2) against a party
(1) Can't bring monetary sanctions against a party where they have an attorney
(ii) Where court issues sua sponte show cause order after voluntary dismissal
E) Does not apply to discovery. Also, inaction does not begin a Rule11 action. The action begins once a signed
motion is sent to the court.

V) Before the Trial Begins Rule65: Preliminary Injunctions
A) Injunction Order to refrain from action
1) Injunctions are great when damages would not solve the problem or are not available. Federal rules allow for
both equitable (injunction) and legal (damages) remedies
2) Preliminary injunctions keep the status quo (from before problem occurred) while action is pending
3) ***Chalk v. US District Court Test***
(a) Rule65 preliminary injunctions should be granted on probable success on the merits
(b) The moving party may meet its burden by demonstrating either:
(i) probable success on the merits AND
(1) The more likely movant is to lose the suit, the less likely a PI is to be granted
(ii) the possibility of irreparable injury or harm; OR
(1) The more problematic, the more likely a PI will be granted
(iii) that serious questions are raised and the balance of hardships tips sharply in its favor
(1) Compare injury to non-movant if injunction is granted
a. Plaintiff will be significantly hurt if the injunction isn't given
b. Defendant will be significantly hurt if the injunction is given
B) Temporary Restraining Orders
1) Dont have to give advance notice to other party if movant can show under R65(b)1a that
(a) immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can
be heard in opposition
2) Good for 10 days and then can file for extension or preliminary injunction
3) Subject to R11 sanctions

VI) Pleadings
A) Rule2 One form of actionthe civil action.
B) Rule3 Civil action is commenced by filing an action with the court
C) Purpose give notice to parties, court, and to determine the merits
D) Rule7 Pleadings allowed:
1) complaint, answer (including counterclaim), answer to counterclaim, answer to crossclaim, third-party
complaint, answer to third-party complaint, (potentially) reply to answer
2) Everything else is done by motion
E) Complaint
1) Rule8(a) 1) short plain statement of jurisdiction, 2) showing entitlement to relief, 3) relief sought
2) Rule10(b) formatted into numbered paragraphs, each containing a single issue
3) Notice pleading All that is needed is a short plain statement to give notice (Conley v. Gibson)
(a) Posner in Sutliff v. Donovan stating that the complaint must
(i) Contain direct allegations of each element of the law the defendant violated (more strict)
(1) Not legal conclusions (Not I was assaulted bybut I was hit in the arm with a stick)
(ii) Identify every essential element of each legal claim
(iii)Include allegations to support every element
(1) Only need to plead the essential elements pertinent to the claim
4) Rule8(d)2 Concise and direct pleading
(a) A party may state as many separate claims or defenses as it has regardless of consistency
(b) Trier of fact makes determination
(c) McCormick (pg. 133) set out inconsistent defenses that should be able to go to jury
F) Pleading Specifically
1) Rule9(b) Exception to the 8(a)2 pleading. Requires heightened pleading ONLY in cases of mistake or fraud.
(a) Fraud and mistake can plead the intent elements generally (so they can be inferred)
(b) Securities fraud requires a strong inference of fraud
(c) Everything else is plead under 8(a)2
2) Pleading Standards
(a) R8(a)2
(i) Basics
(1) Mitchell v. Archibald (driver who was shotgunned, pg. 151)
a. Plead legal conclusions and not the essential elements
(2) Swirekiewicz v. Sonoma
a. Complaint doesnt need to establish prima facie case on the merits but only a short plain
statement
(3) Barebones pleading where the other party gets put on notice.
a. The court is to assume the facts in the complaint are true, and if true, have all the elements
been plead.
(b) R9(b)
(i) Only applicable for mistake and fraud. Inference of fraud or mistake is acceptable. Some judges
have tried to expand Rule, but SC calls for a plain reading of the rule.
(ii) scheme or conspiracy are not sufficient
(c) Sec.Lit.Ref.Act
(i) Tellabs
(1) Strong inference of fraud, not just the allegation
(2) The intent must be at least as likely as not (dissent says more than likely)
(3) Not enough to plead that defendant knew it, but plead with certain facts that a reasonable person
could look at facts and make the determination that there was fraud
(d) Bell Atlantic v. Twombly Enough information needs to be plead for the claim to be plausible. If a case
is not plausible it can be dismissed.
(i) Twombly alleged a conspiracy and violation of the Sherman Act.
(ii) SC held: Claims are valid only if they allege facts that plausibly suggest a conspiracy. To allege facts
that are merely consistent with a conspiracy is not sufficient. The suggestive facts need only be
alleged; a suit can go forward even if the facts are unlikely to be proven by the plaintiff.
(iii) Dismissed case because Twombly didnt identify any facts that suggested illegal conspiracy

VII) Rule12 Motions
A) Generally
1) Rule12.a.1.a - defendant answers within 21 days of being served
2) Rule12.a.4 - serving a R12 pre-answer motion (filing a motion puts off the answer)
(a) If court denies a Rule12 motion, answer due 14 days thereafter
(b) If court grants 12e, answer due 14 days after more definite statement served
3) Rule12b - Every defense to a claim must be made in the answer,
(a) Every defense that you want to reserve must be put in the answer
(b) Ex - Statute of limitations, contributory negligence, etc.
4) Rule12b motions can be plead either in the answer or pre-answer motion
5) Rule12g - You may aggregate Rule12 motions and "must not make another motion under Rule12 that was
available" to the party, except 12h2-3
(a) This is done in order to not drag out pleadings as it can take months to receive a response from the judge
B) ***Timeline for Raising Defenses***
1) Least Favored Defenses Rule12(h)1
(i) Personal jurisdiction (12b2), venue (12b3), and insufficient process (12b4), insufficient service of
process (12b5)
(b) Raised in:
(i) Pre-answer motion
(ii) The answer (and not already raised in pre-answer motion)
(iii) Amended answer under Rule15(a)1
(c) Waived if:
(i) A 12b motion was filed that excluded it; or
(ii) No 12b motion was filed and defenses were omitted in the answer (can be amended)
(iii) Cannot file defenses in both a pre-answer motion and answer
2) Favored Defenses Rule12(h)2
(a) Rule12(b)6 failure to state a claim on which relief can be granted and failure to join party (19b)
(b) Can be raided:
(i) Pre-answer motion
(ii) In the answer (regardless of inclusion in a pre-answer motion)
(iii) In a Rule12(c) motion for judgment on the pleadings
(iv) At trial
(c) Rule12(b)6 and 8(a)2 go hand in hand
3) Most Favored Rule12(h)3
(a) Subject matter jurisdiction (an issue of courts ability to hear the case)
(b) Raised anytime and case will be dismissed immediately

VIII) Rule55 & 60 Default & Default Judgment
A) Default when a party whom relief is sought fails to plead or defend themselves the clerk will enter judgment
1) Purpose get people to show up to move litigation forward.
2) No admission or denial of guilt as there was no answer filed
3) Can be set aside under Rule55(c) for good cause
B) Default Judgment entered by clerk or by the court
1) Harder to set aside under stricter Rule60(b) standards
(a) One year to set aside after judgment is entered
C) ***Shepard Claim Service v. Darrah Test (pg. 200)***
1) In granting relief from default the court will examine:
(a) Whether the plaintiff will be prejudiced
(i) Not the possibility of losing but of material things (witnesses disappearing, memories fading)
(b) Whether the defendant has a meritorious defense; and
(i) If the defense is valid on its face (if not, then probably no relief)
(c) Whether culpable conduct of the defendant led to the default.
(i) Incompetence or negligence doesnt suffice. Intentional and willful actions create culpability
(ii) If not culpable, then probably be granted relief

IX) The Answer
A) Admit, Deny, & Insufficient Information
1) Rule10(b)-numbered paragraphs, limited to "single set of circumstances"
(a) It would be wise to align numbers in answer to numbers in complaint
2) Admit, deny, or insufficient information to admit or deny each claim in the complaint
(a) Move paragraph by paragraph answering each claim
(b) If you plead insufficient information it is counted as a denial
(c) Anything defendant denies the plaintiff must prove
B) Indefinite, Inconsistent, and Excessive Pleadings
1) Rule12(e) Motion for more definite statement (pleading is too sparse)
(a) Board of Harbor Commissioners complaint included allegations as to every element of the claim
(i) R12(e) only applicable when
(1) complaint is unintelligible and no response could be framed
(2) relevant to responses
(ii) R12(e) cannot be used in order to set up a 12(b)6 motion
2) Rule12(f) Motion to strike (pleading is too excessive)
(a) The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or
scandalous matter. The court may act:
(i) on its own; or
(ii) 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.
C) Defenses
1) Rule12(b) Defenses- Include any Rule12 defenses that were not filed in a pre-answer motion
2) Rule8(c) Affirmative Defenses regardless of what is plead in the answer (admission or denials) there is a
defense or reason for what happened
(i) estoppel, fraud, statute of limitations, contributory negligence, etc.
(b) Board of Harbor Commissioners the statute contained except language which indicates defendant had
the burden of pleading and proving
D) Rule11 sanctions apply once the answer has been filed
1) David v. Crompton
(a) Defendant denied negligence claim under insufficient information (led plaintiff to believe they were liable
when the later claimed they were not)
(i) A reasonable inquiry would have shown the details of liability from the acquisition and allowed the
company to deny liability and let plaintiff find the right company to sue
(1) led to sanctions because the reasonable inquiry wasnt taken
(ii) Be mindful of the statute of limitations. The lack of information pleading allowed the statute of
limitations run against another company. Plaintiff was inevitably lead into a false sense according to
the pleading
E) Counterclaim ***Not a freestanding pleading under R7. It is part of the answer***
1) Rule13(a) Compulsory counterclaim arises out of the same transaction or occurrence that is subject matter
of other partys claim
(a) Use it or lose it. It must be filed in the same proceeding and cannot be filed in a separate suit
2) Rule13(b) Permissive counterclaim is anything that is not compulsory
3) Wigglesworth v. Teamsters
(a) Plaintiffs claim was a federal question. Defendants counterclaim was for libel and slander.
(b) The court must determine if the counterclaim was compulsory
or permissive in order to determine if there is jurisdiction
(i) If compulsory, it has jurisdiction for the claim, if
permissive then there is no jurisdiction
(ii) In order to piggyback a claim in federal court it will either
need to be compulsory or permissive with jurisdiction
suitable to be in federal court
(iii) The court uses the "logical connection" test to determine if
events are sufficiently connected to give rise to a
compulsory counterclaim
F) Crossclaim ***Not a freestanding pleading under R7. It is part of
the answer***
1) Rule13(g)&(h) Brought against a co-party for claims that arise out of same transaction, occurrence or event
2) Can claim that co-party is liable for all or part of the claim against the cross-claimant
3) Rule19 & 20 govern joinders
G) Dismissal
1) Rule41(a) Voluntary
(a) Filed early on (before answer or motion for summary judgment)
(b) Can be filed without prejudice

X) Amendment (Rule 15)
A) Amending Pleadings Generally
1) Rule15(a)
B) (1)a - Amending as a matter of course within 21 days after serving a non-response pleading (answer)
C) (1)b - Within 21 days after being served with a responsive pleading (complaint)
1) (2) - With opposing party's written consent; or with the court's leave "The court should freely give leave when
justice so requires"
(a) Working cooperatively with the opponent is preferable
D) David v. Crompton (shredder case where defendant plead insufficient evidence then tried to amend)
1) The court looked at the "justice so require" standard and how an amendment will be unduly prejudicial or
delaying
(a) ***The standard wasn't met here. The plaintiff would be prejudiced if defendant was allowed to change
pleading from insufficient evidence because the statute of limitations would have run
(i) The Jacobs case is distinguishable because the plaintiff filed 9 days before the SoL had run and the
defendant could have taken the full 21 days to answer and thus allowed the SoL to run regardless
E) Relation Back of Amendments
1) The purpose is to allow a party to use the filing date so that they can still fall within the SoL
2) Amending to add a new claim Rule15(c)1(B)
(a) 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
(b) This language is also found in counter and cross claims
(c) It is fair to bring in claims only relevant to the current claim. The notice to the party is key.
3) Amending to change party 15(c)1(C)
(a) Party has to be part of the transaction or question
(b) Brought into the action within 120 days (Within time)
(c) Defendant knew or should have known that he would be a party but for a mistake concerning the proper
party's identity
F) Goodman v. Praxair
1) Background
(a) Brought suit against parent company instead of subsidiary
(b) Parent filed for dismissal
(c) Subsidiary used 12(b)6 stating that SoL had run (not an issue)
(i) SoL is an affirmative defense that needs to be raised by the defendant
(d) Goodman wanted to amend to include subsidiary. Rule 15(c) issue
(i) The defendant argues that they were added rather than "changed" as stated by the Rule
(e) Apply 3 part analysis
(i) The claim arose out of the exact same transaction
(ii) Praxair received notice (both parent and subsidiary have same lawyers and were aware of the suit)
(iii)The "but for a mistake" language holds true and that there was merely an error
(1) The parent was originally sued when it should have been the subsidiary
XI) Real Parties & Joinder of Claims (Rule 17 & 18)
A) Rule 17 - Real Parties in Interest
1) History (NEED TO DOUBLE CHECK #1&2
(a) Plaintiffs limited to those with a "legal title" to the right asserted
(b) Excluded assignees, subrogees
(i) Insurance companies, when they have paid you out, would not be able to go sue because they were
not a real party
2) Effect of Rule 17
(a) Enables "real party in interest" to sue in his own name
(b) Parties who have been made whole cannot sue
(i) But insurance companies can sue because they have an interes
B) Rule 18 Joinder of Claims & Remedies
1) Basic rule: Permits a party to join related and unrelated claims
(a) Doesn't concern itself with jurisdiction
2) Crossclaims under 13(g) need to be related, but after that other claims under Rule 18 can be unrelated

XII) Joinder of Parties (Rule 19 & 20)
A) Joinders Generally
1) Rule 19 & 20 must be treated as pairs
(a) Rule 20- (permissive) the number of parties that can be added by plaintiff (ceiling)
(i) Used with Rule 21 to throw out excess parties
(b) Rule 19- (compulsory) tells the minimum number of parties to have a correct adjudication (defendant
favored)
(i) Case can be dismissed for failure to join an indispensable party
B) Permissive Rule 20a (allows plaintiffs to add both plaintiffs & defendants)
1) How to join:
(a) 20(a)1 persons may join as plaintiffs if
(i) they assert joint, several, alternative right to relief & arise out of same transaction occurrence or series
and any question of law or fact
(b) 20(a)2 joined as defendants if
(i) they assert joint, several, alternative right to relief is asserted against them & arise out of same
transaction occurrence or series and any question of law or fact
(c) If you can get complete relief against one party then another party may not need to be joined
(d)
If the joinder is intolerable then 12(b)7 can be used to dismiss the case (Not sure, Applies to Rule 19)
2) Kedra v. City of Philidelphia (pg. 245)
(a) Background - Police harassing a family over a period of about 18 months
(b) Rule 20 used to join both plaintiffs (other family members) and defendants (police officers)
(c) Defendants argue that the events rose out of different occurrences and that the events were discrete and
over a period of time
(i) Court stated that Rule 20 applies because the events are reasonably related under the same series of
occurrences (commonly linked)
(ii) The potential unfairness of joining all defendants (those who were the actors and those who were not)
will dealt with after discovery
3) Rule 21 can be used at any time to drop parties without disrupting litigation
4) Insolia v. Phillip Morris (pg. 247)
(a) Group of smokers trying to sue and join under Rule 20
(b) Court ruled that the plaintiffs couldnt join because the claims didnt arise out of same transactions
(i) The plaintiffs all started and quit at different ages and for different reasons
(ii) Only allegation was an industry wide conspiracy
(c) Joinder wasnt an option because of the dissimilarities
5) Recognize that the purpose of Rule 20 is to create an efficient trial package. If the evidence supports the same
series, transaction, or occurrence then it will probably warrant adding a party
6) ***EXAM*** - Explain why the facts that would allow a party to join under R20 (transaction, series)
C) Compulsory Rule 19
1) Rule 19 Questions
(a) Is joinder necessary? If either 19(a)1(A) or (B) is satisfied, the answer is yes
(i) Complete relief cannot be accorded among those already parties unless the absentee is made a party;
or
(ii) the absentee claims an interest relating to the subject of the action and disposition without the
absentee may
(1) 19a2i - practically impede the absentee's ability to protect his interest; or
(2) 19a2ii - subject persons already parties to risk of multiple inconsistent obligations
(b) If joinder is necessary, is joinder feasible?
(i) Times when it may not be feasible-
(1) service of process problem? (a)(1)
(2) diversity problem? (a)(1)
(3) venue problem and absentee objects? (a)(3)
(ii) if no problems, then the join under 19a2 and 21
(c) If joinder is necessary but infeasible, is joinder indispensable under 19b?
(i) Factors
(1) Prejudice
a. to those already parties if case proceeds without absentee
b. to the absentee if case proceeds without absentee
(2) Extent to which court order can avoid prejudice
(3) Will judgment without absentee be adequate. i.e. complete, consistent, and efficient
(4) Whether plaintiff will have an adequate remedy if action is dismissed
2) Torrington v. Yost
(a) Action brought against former employee to enforce a non-compete contract
(b) Court dismissed because the new employer was an indispensable party because they would be prejudiced
if they were not added to the litigation

XIII) Impleader (Rule 14)
A) Rule 14 - Third Party Practice "Impleader"
1) Core concept: Derivative liability
(a) Indemnification - Insurance indemnifies its customers and
represents them rather than being impleaded
(b) Contribution - The defendant argues that the impleader
contributed to liability
(c) Breach of Warranty - Retailer sues manufacturer for liability
2) The has to be an "if/then" relationship between the
B) Clark v. Associates
1) Associate hired Bob Howard to repossess a tractor. While doing so they injured the plaintiff. Plaintiff sued
Associates, who brought a claim against Howard based on agency principles.
2) If Associates is liable to Clark, then Howard is liable to Associates

XIV) Interpleader (Rule 22 & 28 USC 1335)
A) In actions where a plaintiff may be exposed to multiple liability, the interpleader statute provides that persons who
may have claims against the insurance companies be joined as defendants and required to interplead without first
obtaining a judgment against their insured
B) Core concept is that there is a dispute over a stake with risk of multiple liability
1) Stake is a finite piece of property (real, personal,
insurance money)
(a) Impleader only applies when the stake has multiple
claims against it
2) Can be used offensively and defensively
(a) Eccentricity: would be defendants become the
"plaintiff
(i) Where suits would make one stake liable to more
than one claim, defendants can bring an impleader
action to consolidate all the claims against them
3) Stake-holder may concede or challenge claimants' rights to all or part of the stake
C) Two stages to interpleader litigation:
1) Is the interpleader device properly invoked?
(a) Only can be used when there is a legally defined finite stake whose value is exceeded by the claims.
(i) A limited net worth is not grounds for interpleader
(b) If yes, sort out the claims
D) Rule v. Statutory
(a) Rule - Allows for a party to bring interpleader but requires complete diversity (no person can share
citizenship)
(b) Statutory - Interpleader can be brought with minimal diversity and only $500 in question
2) Why use the Rule? If you meet all jurisdictional requirements there are limited details to govern the stake;
whereas the statute requires that stake be put in escrow
E) State Farm v. Tashire
1) Wreck involving many people, but not complete diversity
2) State Farm had a finite insurance policy ($20k) with many potential claims against it
3) Other companies tried to implead, but the court held that only State Farm could implead since they were the
only ones with a finite stake

XV) Intervention (Rule 24)
A) Rule 24 allow a party to request entry into a suit when there is a common question of law rather than
being joined when judgments might affect them (Capassos requested entry in Bands Refuge)
1) R24(a) Intervention as of Right ***4 Part Test ***
(i) Statute permits OR
(b) Motion is timely; and
(c) Movant claims interest relating to the property or transaction that is subject to the action; and
(d) Disposing of the action would impede or impair movant ability to protect his interest; unless
(e) Existing parties adequately represent the interest
2) Rule 24(b) Permissive Intervention
(a) Statute permits OR
(b) May not be permitted to join if intervention will duly delay or prejudice another party

XVI) Class Action (Rule 23)
A) Generally
1) Why do we need class action when Rule 20 (permissive joinder) is in place?
(a) There are class representatives for a class action
(b) Can affect future parties
(c) Subclasses - get past the problem of dissimilar situations
(d) Cost - allows action where no one person would want to sue due to the exorbitant. Access to justice
individuals may not be able to get alone
2) What is the downside
(a) Defendant - The consequence of not getting to rebut single cases (misuse of products)
(b) Plaintiff - Your outcome is based on the action of others. Not getting to sue on own behalf
B) Rule 23 Summary ***4 Part Test***
1) Threshold requirements Rule 23(a) - all four need to be satisfied
(a) Numerosity so numerous that joinder is impracticable
(b) Commonality common questions of law or fact that tie party together
(i) Defendant may not be able to defend on particular issues
(c) Typicality claim or defenses are typical of the class
(i) There are those who run the litigation and their interests should represent the entire class
(d) Adequacy of representation attorney who can adequately manage and protect class interest
2) Additional requirements - 23(b)
(a) separate actions would
(i) establish incompatible standards of conduct for the party opposing the class; or
(ii) individual actions would as a practical matter be dispositive of the interests of other class members or
would impede their ability to protect their interest
(1) In typical damages a party would be liable to each person. Class action is used to get damages
where recovery by one would prejudice any other person
(b) Party opposing the class on grounds that apply generally to the class so that injunctive relief is
appropriate for the whole class
(c) Catchall
(i) Common question of law or fact predominate; and
(ii) class action is superior to the other methods--factors to consider, include:
(1) interest of individuals within class to control their own cases
(2) preexisting litigation already commenced
(3) desirability of consolidating litigation in a single forum
(4) management problems associated with class action
(iii) Notice to class members
3) The only way to get prospective relief is through R23(b)2 injunctive relief. Damages cannot be prospective
(a) Holland Case
(i) Civil rights action for inmates aimed at granting the right to counsel and the court
(ii) Class of 40 current inmates, but included all who would be incarcerated at the jail
(iii) Granted class status because they sought injunction under R23(b)2 and fulfilled all R23(a) reqs.
4) Walmart v. Dukes
(a) Background
(i) Suit brought by women workers against Walmart for discrimination claiming that the corporate
culture is discriminatory even though hiring and pay is handled by managers
(ii) Walmart is fighting to break up class so they can deal with suits on individual level
(b) Questions & Problems
(i) Suit is filed as R23(b)3 and the class is seeking back pay and damages. Back pay is equitable relief
which can only be obtained through R23(b)2
(ii) There is not enough commonality in the class (different ranks, employment length, etc.)
(iii) Plaintiffs bring in evidence:
(1) Expert witness who testified culture was a boys club
(2) Labor economist who presented statistics
(3) Anecdotal evidence
(iv) Court rejected the arguments:
(1) Expert cannot say who discriminated against who
(2) Statistics dont show that every situation in every store is discriminatory
(3) Anecdotes were from the same region. Not representative
5) Class Action Fairness Act
(a) Creates federal jurisdiction where there is minimal diversity and over $5M in question

XVII) Discovery Devices
A) Disclosure Rule 26
1) Timeline
(a) Preliminary disclosures made within 14 days of R26(f) conference & without discovery request
(b) Pretrial disclosures made within 30 days of trial
2) Initial Disclosure Rule 26(a)1 Both parties MUST:
(a) Identify individuals with discoverable information
(b) Give copy or description by category and location of documents
(i) Limited to those within his control and docs party may use to support claims and defenses
(c) computation of damages claimed by disclosing party/make related documents available
(d) insurance agreements
3) Pretrial Disclosure Rule 26(a)3 Both parties MUST:
(a) Identify expected/possible witnesses
(b) Identify who will be testifying by deposition
(c) Identify possible documents or exhibits
B) Discovery Device Walkthrough
Depositions - Rule 27, 30-32
o What:
Oral - Rule 30
Lawyers and a reporter. No jury or
judge.
Reporter puts party under oath and it
becomes party of the record
Written questions - Rule 31
Used for simple answers to simple
questions
o Who can be deposed-
Anybody
o When - Rule 26d, 27
After the 26f conference, 27 allows for
the possibility to get a deposition before
the suit is filed
o How
No judge or jury. Limited circumstances
where a deposition can be shut down.
Lawyers can go to the judge if questions
would hurt privileged information
o Why testimony under oath
o How used - Rule 32
o Up to 10 depositions limited to 7 hours. Court
can grant more.
o The less your witness says, the better
Interrogatories - Rule 33
o What - Answers are prepared by lawyers with
consultation from clients
o Who - Only parties can be sent interrogatories
o When - After 26f conference, Limited to 25 and
have a judicial presence in case things go awry
o How filled out by lawyers
o Why - Cheaper. Better way to get certain
information. Responses are generally evasive
Document Discovery - Rule 34
o What - discovery of documents
o Who - Rule 34 applies only to parties but that's
not always the case. Issue a subpoena to get
docs from other people. Subpoena nonparty
witnesses
o When - after 26f
o How - same as interrogatories. Interpreted by
lawyers to their benefit. Be careful how you
phrase questions in a way to get exactly what
you want
o Why - in the abstract there is no better source
of information than documents.
o Electronic documents - It may be hard to find
information from ancient forms of technology.
o Rule 34 request to examine an object.
Physical and Mental Examinations - Rule 35
o Who - only from parties
o When - after 26f conference
o How - needs court approval
o Why - situations where injuries need to be
examined
Request for Admissions - Rule 36
o What - yes or no answers to issues of the suit
o Who -
o When - after 26f conference
o How - need clarity, don't expect too much from
requests for admissions.
o Why - Any request for admissions that are not
returned or left blank are considered admissions
C) Scope of Discovery Rule 26(b)1
1) Any non-privileged matter that is relevant to any party's claim or defense
2) For good cause, court can order discovery for materials related to the subject matter, not just claim or defenses
(a) While not always admissible, this information may lead to some that is
3) Relevant evidence means evidence having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than it would be without the
evidence.
D) Limits on Discovery Rule 16(b)2(C)
1) Court must limit discovery if:
(a) Information is cumulative, duplicative, or obtainable from a more convenient, less expensive source
(b) Party seeking discovery had ample opportunity to discover during discovery action
(c) Burden of discovery outweighs the benefit
E) Protective Order - Rule 26(c)
1) Any person from whom discovery is sought may move for this order
2) Motion must include certification of efforts to resolve without court action
3) For good cause, court may issue the order to protect from annoyance, embarrassment, oppression, or undue
burden.
F) Davis v. Ross
1) Court denied Daviss discovery requests for:
(a) Net worth not needed now. Punitive damages will be calculated after the verdict
(b) Lawyer billing based on idea of bias the existence of a relationship is not an issue
(c) Employee names who have had complaints not relevant to Daviss claim
2) Ross sought psychiatric records
(a) Granted because Davis has claimed mental anguish
G) E-discovery Rules 26(f) - Issues to address
1) 26(f)2 - issues relating to preservation of discoverable information
2) 26(f)3(C) - issues relating to out of date technology
3) 26(b)2(B) - Party doesn't need to provide e-discovery if there is undue burden or cost
(a) Requesting party files a motion to compel
(b) Responding party needs to show that the info is not reasonably accessible
(c) Even if showing is made, court may still require discover if requesting party shows good cause. Court
may set conditions which allows for:
(i) Sampling
(ii) Cost sharing
(d) Many of these problems can be avoided with a good 26(f) conference

XVIII) Discovery Exceptions
A) Exceptions Generally
1) If goal of good procedure is truth seeking, why allow for exceptions?
2) Privilege and protection distinguished
(a) Privilege - exempt from testifying
(i) Priest-penitent
(ii) Doctor-patient
(iii)Husband-wife
(iv) Executive privilege
(v) Deliberative process
(vi) NO parent-child privilege
(b) Protection - certain information is protected
B) Work Product Protection
1) Why protect work product?
(a) Encourages both sides to be diligent
(b) Discourages freeloading
2) Downside?
(a) Information may no longer accessible
3) Surprise information can be beneficial to both sides
C) Work Product Items prepared in anticipation for trial
1) Rule 26(b)3 & Hickman
(a) Documents and tangible things (Rule)
(b) Oral Statements (Hickman)
(c) Mental impressions and legal theories (Most protected)
(d) Previous statements made by parties (Least protected)
(e) All other ordinary work product is protected unless a substantial need and an undue hardship is shown
(f) Attorneys work product (Hickman).
(g) Partys work product (Rule)
2) Saying categorically that all memos are not discoverable since everything a company does could possibly
lead to litigation. Material is only undiscoverable in anticipation of specific litigation.
D) Attorney Client Privilege
1) Upjohn v. United States
(a) Who is the client? (low-level employees filled out questionnaires for lawyer that govt. wanted)
(i) Govt. argues only the control group of company has privilege
(ii) Court holds that all employees are privilege when working with the company attorney
2) Elements of Attorney-Client Privilege
(a) Privilege only protects disclosure of communications and not the factual information
(b) Privilege is between attorneys and clients in a setting where they are seeking legal advice
(i) Communication between officers and employees cannot be privileged unless directed by the attorney
(ii) Consultant information may not share that same privilege.
(c) Work Product
(i) Communications in anticipation of litigation covered by Rule 26(b)3
(ii) Notes and investigation are work product unless communicating with client
(d) Confidentiality
(i) Can be waived by client expressly or by communicating in front of 3d party
(ii) Crime/fraud exception

XIX) Expert discovery
A) Generally
1) Experts are allowed to give opinions regarding the facts
B) Rule 26(a) & (b)(4)
1) R26(a)(2) - Parties must include expert witnesses in initial disclosure
(a) Report to be included with initial disclosure if witness
(i) Retained/specially employed to testify; OR
(ii) employee regularly gives testimony
2) R26(e)(1) - disclosures must be updated if things change
3) Rule 26(b)(4)(a-e)
(a) Experts who will testify may be disposed (after reports are submitted)
(b) Draft expert reports are R26(b)(3) work product
(c) Lawyer communications with testifying experts are (with exceptions) 26(b)(3) work product
(d) Only obtain information from experts who will not testify under exceptional circumstances where it is
impracticable (nearly impossible)
(e) Cost sharing for experts
C) Shell Oil used employee experts after explosion who did not testify
1) Categories of Experts:
(a) Experts who are specially retained in anticipation of litigation & who will testify - R26(b)4(A) -
deposable
(b) Experts who are working in anticipation of litigation who will not testify R26(b)4(B) - deposable showing
exceptional circumstances (easier burden)
(c) Experts who are in-house & not specially retained but are working in anticipation to litigation R26(b)3 -
discoverable showing undue burden (nearly impossible)
(d) Experts with no ties to the litigation (product testing, etc.) R26(b)1 discoverable

XX) Investigation Interviews with court reporter are okay but not admissible as testimony

XXI) Motion To Compel
A) Objectives
1) Coerce compliance (get information)
2) Don't let recalcitrant party benefit from noncompliance (specifically)
3) Deter future abuse (generally)
B) Rule 37
1) R37(a) - Motions to compel
(1) - certification of efforts to obtain discovery/disclosure without court action
(3) - failures to make disclosure & failure to answer depositions, interrogatories, & document inspection
(4) - applies to evasive/incomplete responses
(5) - loser pays attorneys fees unless
(1) failure is substantially justified
(2) makes award unjust
(3) Why have loser pays here, but not under R11?
a. Because the court doesn't want to be involved in every step & that there will be dire
circumstances if parties don't comply
b. Create a system of coercion
2) R37(b) - Failure to comply with court order to compel
(a) Authorizes a range of sanctions including:
(i) Taking facts as established
(ii) Prohibiting disobedient party from raising specified claims or defenses
(iii) Striking pleadings
(iv) Staying proceedings pending compliance
(v) Dismissal
(vi) Default
(vii) Contempt
3) R37(c) - Failure to disclose or supplement
(a) Fail to update information, cannot use that information later
(b) Court may award expenses caused by failure
(c) Court may tell jury about the failure & cause negative inferences
(d) Court may impose R37(b) sanctions (except contempt because there is no order)
4) R37(d) - Failure to attend deposition or serve response under R 33 & 34
(a) Certify efforts to obtain discovery without court action
(b) Entitled to R37(b) sanctions & fees except where substantially justified
(c) Noncompliance unjustified by objection to discovery sought unless protective order sought
5) Paradox of Discovery
(a) Rules expect parties to cooperate and complete discovery without court intervention
(b) Perhaps because discovery occurs outside of court, discovery is acrimonious, requiring frequent court
intervention

XXII) Summary Judgment
A) Generally
1) SJ allows for judicial efficiency
2) R12 defenses assume facts plead are true. SJ looks at disputed evidence & discovery to judge.
B) Rule 56(
1) Who may move for SJ?
(a) Parties may move for SJ
(f) Court may, after notice and opportunity to respond
(1) Grant SJ for a non-movant
(2) Grant SJ on grounds no raised by a party
(3) Consider SJ on its own after identifying non-disputed facts for parties
2) When is SJ motion timely? - (b) Any time until 30 days after close of discovery
3) How should defendant respond when a SJ motion is filed the day after complaint is filed?
(d) If non-movant shows it cannot present facts essential to justify its opposition the court may
(1) Defer or deny the motion
(2) Allow time for discovery
4) Does the entry of summary judgment always end the civil action?
(a) Court can grant partial summary judgment
5) What must the movant show to be entitled to SJ?
(a) No genuine dispute of a material fact
(b) Party is entitled to judgment as a matter of law
6) How to show there is no dispute of a material fact (what the movant needs to show)?
(c)(1) Parties asserting that facts cannot be or are genuinely disputed "must support the assertion" by
(1) Citing materials in record that establish presence or absence of dispute
(2) Showing that materials cited do not establish presence or absence of dispute
7) Movant goes first by filing a motion
(a) If the movant makes the required R56(a) showing in its initial motion the judge can:
(i) R56(e) give an opportunity for the opposing party to support its position
(ii) consider facts undisputed
(iii)grant SJ if motion shows movant is entitled to it
(iv) issue any appropriate order
C) How it works
1) At trial
(a) No reasonable jury could find for the plaintiff - directed verdict for the defendant
(b) Reasonable jury could find for plaintiff or defendant - no directed verdict
(c) No reasonable jury could find for the defendant - directed verdict for the plaintiff
2) If plaintiff moves for SJ first
(a) No genuine dispute of material fact on claim - SJ for the defendant
(b) Genuine issue of material fact - No SJ
(c) No genuine issue of material fact - SJ for the plaintiff
***Plaintiff must establish every essential element in order to succeed in a motion for SJ***
3) Three approaches to meeting a defendant's burden under R56(a)
(a) Defendant must disprove an essential element of plaintiff's claim (I can prove this didn't happen)
(Affirmative attack on the elements)
(b) Defendant must show an absence of evidence in the record sufficient for plaintiff to establish an essential
element of its claim (Plaintiff can't prove it did happen)
(c) Defendant must simply move for SJ (if plaintiff doesn't show a meritorious case)
***If defendant moves for SJ he must show that there is no genuine issue of material fact. This is more of a
burden than the defendant would have at trial (just sit tight).***
D) Adickes
1) The defendant would have to affirmatively disprove that there were no police officers in the store in order to
complete the burden of production
(a) ***Defendant must affirmatively disprove an essential element of plaintiff's claim***
2) R56(c)2 sets out that evidence must be put into admissible form in order to be considerable
3) R56(c)4 affidavits and declarations must be based on personal knowledge
E) Celotex
1) ***Defendant must show an absence of evidence in the record sufficient for plaintiff to establish an
essential element of its claim***
(a) If D moves for SJ then the burden has shifted to P to produce something that will show an issue
of material fact
F) Arnstein Fantastic claims can go to the jury
G) Dyer v. MacDougall Have to satisfy R56(c) requirements

XXIII) JMoL Rule 50
A) Keep-a-way from Jury
1) Pre-trial Procedures
(a) Summary Judgment, Rule 12b, Default Judgment, Rule 12c Judgment on the Pleadings
2) Mid-trial/Post-trial
(a) Rule 50(a)-Judgment as a matter of law, pre-jury verdict (directed verdict)
(b) Rule 50(b)-Judgment as a matter of law, post-jury verdict (judgment n.o.v.)
(c) Rule 50(c)-New trial
3) Rule 50(a) Judgment as a Matter of Law
(a) A party can move for directed verdict as soon as the opposing party has presented their evidence
(b) The moving party must show that no reasonable jury could find for the other party
(c) The purpose in enabling a JMoL shows a slight distrust for the jury.
(i) If a case survives SJ, why have JMoL?
(1) At SJ it is all about the paper record. Judges who err and allow a weak case go to trail
can look at the evidence presented and grant JMoL
4) Courts have discretion and can require many facts or mere speculation
B) 7th Amendment Issues
1) There were procedures that were trial enders in 1791
2) Jury doesnt try facts until they leave for deliberation
3) R50 begins after opposing party has finished and before jury leaves for deliberation
(a) Motion is merely renewed
C) Post-verdict JMoL
1) Motion up to 28 days after judgment was entered
2) Motion is renewed (filed before jury deliberation) and reconsidered by the judge
XXIV) New Trial Rule 50
A) Why
1) When the clear weight of the evidence cuts the other way
B) Rule 50(c)-(e); 59
1) Timing
(a) Under R50(a) - JMoL (aka directed verdict) must be raised after the opposing party has been
fully heard and before case is submitted to the jury
(b) Under R50(b) - JMoL (aka jnov) must be raised no later than 28 days after entry of judgment
(c) Under R59(b) - new trial motion must be filed no later than 28 days after judgment
(i) JMoL and New Trial can be moved for simultaneously
(ii) NT can be granted conditionally
(1) may not be able to convince judge that no reasonable juror could find, but that the clear
weight of the evidence cut the other way
2) Scenarios
(a) Denies JMoL; grants new trial
(b) Grants JMoL; conditionally grants new trial
(c) Grants JMoL; conditionally denies new trial
(a) Denies JMoL; denies new trial
2) HYPO- Plaintiff wins $1M verdict in auto accident case. Defendant moves for JMoL and new trial
(a) Denies JMoL; grants a new trial
(1) R50 doesn't address this scenario
(2) The final decision rule (can only appeal after a final order)-with exceptions, parties may appeal
only from final decisions of DC
(3) No final decision--hence no appeal until after 2d trial
(b) Grants JMoL; conditionally grants new trial
(1) R50(c)(2)-conditionally granting new trial does not affect finality
(2) if JMoL is reversed on appeal, new trial follows unless AC orders otherwise
(3) R50(d)-losing party may move for new trial within 28 days of JMoL entering
(c) Grants JMoL; conditionally denies new trial
(1) R50(d)-losing party may move for new trial within 28 days of JMoL entering
(2) R50(c)(2)-Appellee (defendant in out HYPO) may assert that DC erred in conditionally denying
the new trial. Why should appellee care-he won the JMoL?
a. The fallback is that there would be no new trial. If you are going to reverse then the TC erred
in not granting a new trial
(3) If the AC reverses the JMoL, the case proceeds as the AC orders
(d) Denies JMoL; denies new trial
(1) The prevailing party may as appellee assert ground for new trial in the event the AC reverses the
JMoL
(2) If AC reverses the judgment, in may order a new trial, direct entry of judgment, or direct rial
court to determine if a new trial is warranted

XXV) Claim Preclusion (res judicata) Bars relitigation on same claim or cause of action
A) Requirements
1) There must be a final judgment
2) Judgment must be on the merits
3) Claims must be the same in the two suits (very broad)
4) Parties must be the same or be in privity
B) Claim all theories of recovery arising from the same transaction
1) R18 claim is basis for recovery
C) Counterclaims R13
1) R13(a) compulsory must be used in the suit or lost (cannot be brought up in a later action)
(a) If R13 never in play (judgment before the answer) a claim may be brought based on the
transaction
(i) It cannot attack the validity of the first claim
D) Judgment on the merits
1) Did the court address the merits of the case?
(a) R41(b) only applies to proceedings filed in the same court
(i) Dismissal is on the merits unless jurisdictional (R12(b)(6))
(b) If filed in a different court (state instead of federal) is R12(b)(6) really on the merits?
(1) If pleadings are deficient it may not be on the merits (Gillespies claim against Goodyear)
(2) If there is no claim in the pleading it may be on the merits (Shotgun to the face)
XXVI) Issue Preclusion (collateral estoppel) prevents relitigation of same issue
A) Requirements
1) There must be a final judgment
2) Issue must be the same in the two suits (defined very narrowly)
3) Issue must have been actually litigated, determined and necessary to the judgment in the first suit
4) Circumstances of the second suit do not indicate that it would be unfair to invoke the doctrine (unfair
to proceed)
B) Generally
1) Res judicata doesnt apply because the parties are different
2) ***Cannot attack a judgment later on a defense that was never brought up in the first case***
(a) Little Blue Goose Blue Goose proved there was no CN was proved in the first case, cannot
bring up CN in a later action
C) Bound by judgments
1) New parties may bring similar actions
(a) Where a previous action was decided similarly by a suppose virtual representative
2) Stare decisis may not apply if a new legal theory is forwarded
3) Exceptions
(a) Non-party agrees to be bound
(b) Legal relationships bind non-parties (assignor & assignee)
(c) Adequate prior representation of non-party (class action)
(d) Non-party assumed control the prior case
(e) Relitigation by proxy (party & agent --similar to 2)
(f) Statutory schemes (bankruptcy)
4) Difference between offensive and defensive estoppel
(a) Defensive - defendant claims you already litigated and lost the issue against the previous party
and can't bring the same issue against them
(i) Encourages all plaintiffs to join the litigation if they have an interest
(b) Offensive - plaintiff argues that a previous ruling keeps defendant from defending the issue
(i) If first plaintiff loses, the next plaintiff can litigate
(ii) If first plaintiff wins, the others can estop the defendant from protecting themselves
(iii)