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iv. What does "Arising under" language mean [as used in §1331]?
v. Well-Pleaded Complaint Rule
Motley (Lifetime Train Pass Case) » FQ jurisdiction cannot be invoked unless an
issue of federal law appears on the face of a properly pleaded complaint
Federal issue cannot be a defense that plaintiff anticipates [like in Motley where it
was simple breach of contract and Fed Q defense was anticipated]
vi. Holmes Creation Test
a) Motley [Old Rule]: A case arises under the law that creates the cause of action
← - Defenses don’t count even if anticipated (law suit was about breach of contract)
b) Smith [New Rule » Expands Holmes Test]: Since a federal issue (Federal Farm
Loan Act) was embedded in the state law claim and it was essential to the resolution,
FQ jurisdiction exists even though it fails the Holmes test.
vii. Substantial Federal Issue Approach » Modern "Arising Under" Rule
Grable v. Darue » State-law claims can be heard in federal court if the claim raises a
substantial federal issue that is actually disputed.
← - Case was about interpretation of tax code to resolve simple ownership dispute
← -Motley Step 1 Grable Step 2
B. Diversity Jurisdiction
i. U.S. Constitution Article III, §2 [see above] – calls for minimum diversity
ii. 28 U.S.C. §1332 – calls for complete diversity
Redner v. Sanders [RULE #1: Diversity jurisdiction requires complete diversity between parties]
Cites Strawbridge v. Curtis » established "complete diversity" requirement
Constitution [Art. III, §2] requires only minimal amount of diversity
Statute [§1332] is interpreted by courts to require "complete diversity"
Congress makes statutes to narrow authority conferred in federal courts under the Constitution
Constitution = ceiling; sets outer parameters and limits of federal court authority
Statute = narrows scope of federal court authority by giving more specific rules and regulations on
how to do things
TAKE-AWAY: Congress has the power to tell us what to do and how to do things in a way that
comports with the broader parameter set by the Constitution
RULE #2: Residence ≠ Citizenship » Domicile = Citizenship
Being a resident in another country or state does not equate to domicile » only ONE domicile!
You can have many residences but ONLY ONE DOMICILE at a time
b) Corporation
1. State of Incorporation [Inc.]
2. Principal Place of Business [PPB]
(a) Old Rule: Muscle Test » New Rule: Nerve Center Test
Muscle test: Where the corporation does most of what it does.
Eliminated by S.C. in Hertz v. Friend (2010) »
Nerve center test: Where are the corporate headquarters.
c) Partnerships and LLCs
1. LLCs are treated like Partnerships » citizenship based on collection of
individuals
(a) Partnership = acquire citizenship of each partner
(b) LLCs = acquire citizenship of each member
2. Belleville Catering v. Champaign [lawyer mistakenly treated Champaign,
LLC like a corporation rather than a partnership]
What are Long-Arm statutes? Long-Arm statutes create jurisdiction in states of each court. Limits are defined
by constitution » Two Questions » (1) Does the statute provide PJ? + (2) Is the statute constitutional?
International Shoe v. Wagon [RULE: Even if defendant is not in the forum state, if the
defendant has minimum contacts in the forum it will not offend traditions of fair play and
substantial justice]
Court says it is doubly fair to hold defendant responsible in a state when the activities in
the state give rise to the cause of action. Non-present defendants must have minimum
contacts with the forum state in order for due process to be met.
Contrast to Pennoyer. Court asks “is it FAIR?” rather than “is it THERE?”
c) Asahi Fairness Factors (5): » [“traditional notions of fair play and substantial
justice” » court looks to the fairness factors AFTER looking at minimum contacts and
only if the minimum contacts are uncertain]
1. Burden on defendant
2. Interests of the forum state
3. Plaintiff’s interest in obtaining convenient and effective relief
4. Interstate’s interest in obtaining the most efficient resolution of controversies
5. Shared interest of states in furthering fundamental substantive social policies
Example: Burger King [breach of contract case applying fairness factors]
Contract probably not enough for minimum contacts, but it was fair to bring
himto court there since Miami office handled all financial and business affairs
with Michigan franchise.
g) Calder Effects Test » only for intentional tort cases! [Calder v. Jones]
Required Elements for Applying the Calder Effects Test:
1. Defendant committed an intentional tort
2. Defendant injured person in another state
3. Defendant had knowledge injury would occur in another state
TAKE-AWAY: PJ is obtained where the effects of the conduct are felt if the
defendant intended harm there. This is limited to intentional torts.
iii. General Jurisdiction » COA does not need to be related to activities in the state [as in SJ]
Continuous operations within a state are so substantial as to justify suit against it on
causes of action arising from dealings entirely different from these activities.
a) Individual Defendants » Domicile; State of residence
Domicile constitutes general jurisdiction over an individual.
b) Corporation/Business Defendants » PPB or State of Incorporation
Continuous and systematic activity
Corps can be subject to GJ in more than one state [i.e. McDonald’s]
An equivalent place (equal to an individual’s domicile), aka a place in which
the corporation can be fairly regarded as being “at home”
Goodyear v. Brown [RULE: Minimal sales are insufficient for GJ. A court
may assert GJ over foreign corporations to hear any and all claims against
them when their affiliations with the state are so continuous and
systematic as to render them essentially at home in the forum state.
c) Alternative » systematic and continuous contacts with forum state
Applicable for individual or corporate defendants
Perkins v. Benguet [RULE: GJ if corp has systematic and continuous
presence in the forum state]
Helicopteros [RULE: Mere purchase in a forum state, even if occurring at
regular intervals, are not enough to warrant state’s assertion of personal
jurisdiction over nonresident corporation in cause of action not related to
the purchase transaction. GJ requires SYSTEMATIC and CONTINUOUS
contacts with the forum state]
What about in-person "tag" PJ? » Burnham v. Superior Court [physical presence in state established PJ]
RULE: States have exclusive jurisdiction over non-residents who are physically within the state.
REASONING: One who visits another state knowingly assumes risk that the State will exercise power
over him/her. Although contact is minimal, it gives rise to predictable risks.
Minimum contacts [SJ] necessary to give rise to cause of action relates only to absent defendants.
TAKE-AWAY: Personal service in a state is still a valid means of obtaining jurisdiction » “Tag
Jurisdiction” [only applicable to individual not corporate defendants]
Tag jurisdiction only applies to individuals » presence in the state is enough to assert jurisdiction.
However, individuals cannot be tricked into going into the state, presence must be voluntary and
knowingly (no jurisdiction over witnesses travelling to a state for a trial).
B. Consent
i. Implicit consent: [being within the borders of a state [Burnham]
ii. Express consent:
a. Appointing an agent of service: you thereby consent to service of process in that state and thus
consent to personal jurisdiction, same with registering to do business if the statute says you then
consent to service of process.
b. Forum selection clause: You agree beforehand where the lawsuit will happen, constitutes express
consent to personal jurisdiction.
Test for enforceability:
Was the clause negotiable? (if yes, enforceable) If not – consider other factors:
Benefit to the other party
Fair notice
Motive (must not be to discourage lawsuits)
c. Cognovits clause: Shifts the burden. Whoever brings the lawsuit automatically wins. Defendant
can set aside judgment but their job to prove they did not breach the contract. Only enforceable
when both parties get a clear benefit out of the clause.
d. Consent can come in the form of pre-litigation agreements [Carnival] or by waiver [when
defendant appears but fails to challenge jurisdiction]
C. Notice
i. Personal Jurisdiction requires BASIS and NOTICE
a) Wuctcher v. Pizzuti [Supreme Court struck down state statute that said court had
jurisdiction over defendants who use their road and service of process just had to be
served on secretary of state » did not have to notify the defendant thus, the court
overruled the statute on the grounds that is was unconstitutional because it did not
require notice or specify notice to be given to the defendant]
iii. Why is Notice and Service a Two-prong Inquiry? Because it must meet BOTH:
State/federal statute or rule requirements and (2) constitutional requirements
Notice needs to:
(1) Reasonably convey what you are notifying them about
(2) Tell them what is coming
(3) Opportunity to present objections (time to be heard/prepare)
Does constitution require defendant get notice?
A mere gesture is not appropriate for due process
Method used needs to be truly desirous of actually informing the defendant
the information
iv. Mullane v. Central Hanover » Notice serves function of creating opportunity to be heard
and must be given in a reasonable period of time. Due Process Clause requires
deprivation of life, liberty, or property by adjudication be preceded by notice. States must
balance burden of serving process with due process fundamental right to be heard.
Notice is NOT actual notice » notice just has to be reasonably calculated to apprise
interested parties of the pendency of the action and afford them an opportunity to
present the objections
Need to give notice a reasonable amount of time before the hearing to give the person
the opportunity to be heard
III. VENUE
A. Venue restricts places where a suit can be brought even if jurisdiction is proper
Statutory issue: constitution does not mention venue.
Venue can be waived by defendant.
Even if waived, court may not to hear a case if venue is improper for judicial economic
reasons.There might be a more appropriate venue.
B. 28 U.S.C. §1391
A. (b) Venue in General.
(b)(1) » If all defendants reside in same state, venue is proper in district where any defendant
resides [resides = domicile]
(b)(2) » Venue based on events or omissions giving rise to the claim
(b)(3) » Catchall provision
Venue is authorized in a judicial district where any defendant is subject to personal
jurisdiction (a)(3), or where defendant may be found (b)(3), at the time the action is
commenced only if there is no district where the action can otherwise be brought.
Only applies if there is no district, ANYWHERE in the US where the case can be
brought under sections 1 and 2
B. (c)-(d) Residency » for corporations, aliens, individuals. -DON’T WORRY NOT ON EXAM
§1391. Venue generally
(b) Venue in general.--A civil action may be brought in--
(1) a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located;
(2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the
action is situated; or
(3) if there is no district in which an action may otherwise be brought as provided in this section, any judicial district in which any defendant is subject to the court's
personal jurisdiction with respect to such action.
(c) Residency.--For all venue purposes--
(1) a natural person, including an alien lawfully admitted for permanent residence in the United States, shall be deemed to reside in the judicial district in which that
person is domiciled;
(2) an entity with the capacity to sue and be sued in its common name under applicable law, whether or not incorporated, shall be deemed to reside, if a defendant, in
any judicial district in which such defendant is subject to the court's personal jurisdiction with respect to the civil action in question and, if a plaintiff, only in the
judicial district in which it maintains its principal place of business; and
(3) a defendant not resident in the United States may be sued in any judicial district, and the joinder of such a defendant shall be disregarded in determining where the
action may be brought with respect to other defendants.
(d) Residency of corporations in States with multiple districts.--For purposes of venue under this chapter, in a State which has more than one judicial district and in
which a defendant that is a corporation is subject to personal jurisdiction at the time an action is commenced, such corporation shall be deemed to reside in any district
in that State within which its contacts would be sufficient to subject it to personal jurisdiction if that district were a separate State, and, if there is no such district, the
corporation shall be deemed to reside in the district within which it has the most significant contacts.
B. Common Law Rule » applies to state and federal courts [state statute = §1404(a)]
Forum Non Conveniens = a common law doctrine. Used in federal and state courts to send
case to a foreign country or another state. = DISMISSAL OF ACTION ENTIRELY
Gulf Oil Analysis
Private Interest Factors:
Relative ease of access to sources of proof
Availability of compulsory process for witnesses who are not willing to come forward
Cost for willing witnesses
Ability to view premises/scene of the incident
Practical costs and ease of trial
Public Interest Factors:
Court congestion
Local issues should be settled at home
Court’s familiarity with applicable law
Avoiding conflicts of law/application of foreign law
Burdening citizens in an unrelated forum with jury duty
C. Forum-non v. Transfer
Forum-non is used in federal court when you want to transfer to a foreign jurisdiction. Also
used in state court when you want to transfer to another state’s courts. 1404 and 1406 are
used to transfer from one district to another in federal court (or to a different division
within a district).
Forum-non is considered a dismissal, SOL will continue to run but parties will often stipulate
to that it will not be an issue.
Transfer is not a dismissal, no SOL issue, no need to re-file.
D. TAKE-AWAY: If court does not have SMJ or PJ, it MUST dismiss » If PJ and venue are proper,
the court MAY dismiss thus, forum-non is discretionary and up to the court.
V. JOINDER OF CLAIMS
A. Rule 18: Joinder of Claims
A single party can join any and all claims he has against opposing party
Proper Joinder ≠ Proper Jurisdiction » still need proper SMJ and PJ
Rule 18(a) » A party seeking relief from an opposing party MAY join with his
original claim ANY additional claim he has against that opposing party
Additional claims that arise out of the same transaction or occurrence that are
NOT asserted may later be barred by claim preclusion.
Rule 18. Joinder of Claims
(a) In General. A party asserting a claim, counterclaim, crossclaim, or third-party claim may join, as independent or alternative claims, as many claims as it
has against an opposing party.
(b) Joinder of Contingent Claims. A party may join two claims even though one of them is contingent on the 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.
Rule 60(b) Grounds for Relief from a Final Judgment, Order, or Proceeding.
On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons: -- (5)
the judgment has been satisfied, released or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no
longer equitable.
X. ISSUE PRECLUSION
A. "Collateral estoppel" = Prevents an issue from being revisited a later case; under this doctrine,
if an issue is actually litigated, decided, and essential to the decision, the losing party may not
re-litigate such issue in a subsequent proceeding.
B. Only precludes plaintiff from re-litigation issues that were actually litigated and decided in a
prior action. If an issue could have been raised in the first case but was not explicitly raised
and decided, it can be brought in a subsequent action.
C. Required Elements of Issue Preclusion:
i. Same issue of law/fact
ii. Issue is actually litigated and decided [not by default]
a) Illinois Central Gulf Railroad v. Parks [issue of contributory negligence on the part of
one of the defendants (Jessie) was never actually decided and litigated thus, issue
preclusion did not apply » defendant's contributory negligence was not precluded from
second case because there was not a final judgment or decision on the particular issue
that defendant (Jessie) is now trying to bring up in second case (Jessie's suit against
Railroad; Jessie v. Illinois Central Gulf Railroad]
iii. Final Judgment
iv. Decision was necessary to original judgement
v. Parties can be same or different [but only can bring issue preclusion against the loser!]
a) Parklane Hosiery Co v. Shore » Can only use offensive/defensive issue preclusion
against LOSER of the first case; winner of the first case cannot use
i. Defensive Use of Issue Preclusion = Collateral estoppel is defensive if
a defendant seeks to rely on a prior finding to defeat a plaintiff’s claim
against it in a later case
1. Party cannot invoke issue preclusion against non-party to first
suit [would violate non-party’s due process]
2. Gives plaintiff strong incentive to join all potential defendants in
the first action if possible
ii. Offensive Use of Issue Preclusion = Collateral estoppel is offensive if
a plaintiff seeks to rely on a prior finding to hold the defendant liable in
a later case.
1. Most courts say nonparty can invoke issue preclusion against
party to 1st suit
2. Creates opposite incentive » ‘Wait and see’ [learn from first
case]
a. Hurts judicial economy
b. Unfair to defendant » it gives opportunity to sandbag
defendant
c. Inconsistent judgments
d. Second action may afford new procedural opportunities
iii.
a. If loser of first case did not get to defend issue first time around
XII. PLEADINGS
A. Complaint
Rule 3. Commencing an Action.
A civil action is commenced by filing a complaint with the court
Rule 7: (a) defines pleading [complaint, the answer and some other initial papers in a lawsuit]; and
(b) distinguishes pleading from motion [motions describe any request for a court order]
Rule 8(a). Claim for Relief. A pleading that states a claim for relief must contain:
(a) An allegation of jurisdiction;
(b) Short and plain statement of the claim showing the pleader is entitled to relief; and
(c) A demand for judgement for the relief sought, which may include relief in the alternative or
different types of relief.
TAKE-AWAY:
What does plausibility mean?
When the plaintiff pleads factual content so that the court can make reasonable inference that the
defendant did the unlawful act that the plaintiff asserts in the complaint
See Ashcroft v. Iqbal
Somewhere between the spectrum of possibility and probability
Possibility ----» (Plausibility) ----» Probability
What is the just piece of this equation? Justice » give defendant fair notice as to claim
Rule 9. Special Complaint. » [heightened pleading standard]
Rule 9: Pleading Special Matters.
(b) Fraud or Mistake; Conditions 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.
Stradford v. Zurich [Plaintiff moves to dismiss defendants’ counterclaims based in fraud for [failure
to state their claims with sufficient “particularity” under Rule 9(b) and failure to state a claim with
respect to certain other counterclaims]
B. Sanctions [Rule 11.] -Who can be sanctioned? What are the sanctions?
Rule 11(c) Sanctions.
(1) In General. If, after notice and a reasonable opportunity to respond, the court determines that Rule 11(b) has been violated, the
court may impose an appropriate sanction on any attorney, law firm, or party that violated the rule or is responsible for the violation.
Absent exceptional circumstances, a law firm must be held jointly responsible for a violation committed by its partner, associate, or
employee.
(2) Motion for Sanctions. A motion for sanctions must be made separately from any other motion and must describe the specific
conduct that allegedly violates Rule 11(b). The motion must be served under Rule 5, but it must not be filed or be presented to the
court if the challenged paper, claim, defense, contention, or denial is withdrawn or appropriately corrected within 21 days after service
or within another time the court sets. If warranted, the court may award to the prevailing party the reasonable expenses, including
attorney's fees, incurred for the motion.
(3) On the Court's Initiative. On its own, the court may order an attorney, law firm, or party to show cause why conduct specifically
described in the order has not violated Rule 11(b).
(4) Nature of a Sanction. A sanction imposed under this rule must be limited to what suffices to deter repetition of the conduct or
comparable conduct by others similarly situated. The sanction may include nonmonetary directives; an order to pay a penalty into
court; or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of part or all of the
reasonable attorney's fees and other expenses directly resulting from the violation.
(5) Limitations on Monetary Sanctions. The court must not impose a monetary sanction:
(A) against a represented party for violating Rule 11(b)(2); or
(B) on its own, unless it issued the show-cause order under Rule 11(c)(3) before voluntary dismissal or settlement of the claims made
by or against the party that is, or whose attorneys are, to be sanctioned.
(6) Requirements for an Order. An order imposing a sanction must describe the sanctioned conduct and explain the basis for the
sanction.
Walker v. Northwest Corp [HOLDING: It is the burden of plaintiff or his attorney to establish diversity if
bringing claims on those grounds » If plaintiff or his attorney fails to meet this burden then sanctions are
warranted to prevent this type of behavior]
Applicable Rules:
Rule 11(b): When you submit papers to the court you certify to the best of your ability and
knowledge that all you say is true and right
Rule 11(b)(2): Legal inaccuracy; legal contention of diversity = untrue
Plaintiff’s attorney improperly pled legal contention asserting SMJ on diversity grounds
Rule 12(b)(1): Motion to Dismiss [on Grounds of Lack of SMJ]
Christian v. Mattell [RULE: Under Rule 11, sanctions are limited to “papers” signed in violation of the rule
[pleadings, written motions, and other papers that have been signed and filed in a given case, 11(a)]
11(a) does not authorize sanctions for other extrinsic things such as: discovery abuses or misstatements
made to the court during an oral presentation
Dispute ---------------» Complaint [Rule 8(a); 9(b); “Twiqbal”] -----------» Response to Complaint
XIII. DISCOVERY
A. Initial Disclosures
i. Rule 26(a) » Required Disclosures
Rule 26. Duty to Disclose; General Provisions Governing Discovery.
(a) Required Disclosures.
(1) Initial Disclosure.
(A) In General. Except as exempted by Rule 26(a)(1)(B) or as otherwise stipulated or ordered by the court, a party must, without awaiting a discovery request, provide
to the other parties:
(i) the name and, if known, the address and telephone number of each individual likely to 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;
(ii) 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;
(iii) 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
(iv) 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.
B. General Discovery
← - Parties all good, non parties supeana
i. Rule 26(b) » Request Relevant Disclosures
Rule 26(b) Discovery Scope and Limits.
(1)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 and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in
controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or
expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.
(2) Limitations on Frequency and Extent.
(A) When Permitted. By order, the court may alter the limits in these rules on the number of depositions and interrogatories or on the length of depositions under Rule
30. By order or local rule, the court may also limit the number of requests under Rule 36.
(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:
(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less
expensive;
(ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action;
or (iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).
(3) Trial Preparation: Materials.
(A) 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:
(i) they are otherwise discoverable under Rule 26(b)(1); and
(ii) 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.
(B) 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.
(C) 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:
(i) a written statement that the person has signed or otherwise adopted or approved; or
(ii) a contemporaneous stenographic, mechanical, electrical, or other recording--or a transcription of it--that recites substantially verbatim the person's oral statement.
(4) Trial Preparation: Experts.
(A) Deposition of an Expert Who May Testify. A party may depose any person who has been identified as an expert whose opinions may be presented at trial. If Rule
26(a)(2)(B) requires a report from the expert, the deposition may be conducted only after the report is provided.
(B) Trial-Preparation Protection for Draft Reports or Disclosures. Rules 26(b)(3)(A) and (B) protect drafts of any report or disclosure required under Rule 26(a)(2),
regardless of the form in which the draft is recorded.
(C) Trial-Preparation Protection for Communications Between a Party's Attorney and Expert Witnesses. Rules 26(b)(3)(A) and (B) protect communications between
the party's attorney and any witness required to provide a report under Rule 26(a)(2)(B), regardless of the form of the communications, except to the extent that the
communications:
(i) relate to compensation for the expert's study or testimony;
(ii) identify facts or data that the party's attorney provided and that the expert considered in forming the opinions to be expressed; or
(iii) identify assumptions that the party's attorney provided and that the expert relied on in forming the opinions to be expressed.
(D) Expert Employed Only for Trial Preparation. Ordinarily, a party may not, by interrogatories or deposition, discover facts known or opinions held by an expert who
has been 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. But
a party may do so only:
(i) as provided in Rule 35(b); or
(ii) on showing exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on the same subject by other means.
(E) Payment. Unless manifest injustice would result, the court must require that the party seeking discovery:
(i) pay the expert a reasonable fee for time spent in responding to discovery under Rule 26(b)(4)(A) or (D); and
(ii) for discovery under (D), also pay the other party a fair portion of the fees and expenses it reasonably incurred in obtaining the expert's facts and opinions.
(5) Claiming Privilege or Protecting Trial-Preparation Materials.
(A) Information Withheld. When a party withholds information otherwise discoverable by claiming that the information is privileged or subject to protection as trial-
preparation material, the party must:
(i) expressly make the claim; and
(ii) describe the nature of the documents, communications, or tangible things not 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.
(B) 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.
Favale v. Roman Catholic Diocese of Bridgeport
RULE: A party must demonstrate that requested information is relevant to a claim or defense in order to
prevail on a motion to compel.
Question asks whether information [plaintiff compels] is pertinent in relation to claim or defense at issue
RELEVANCE is RELATIONAL » Would the information sought in the case help the party seeking
it prove or defeat the claim in question?
D. Experts
i. Testifying Experts v. Non-testifying (Consulting) Experts
a) Testifying Experts:
1. Must disclose 90 days before [26(a)(2)(D)]
2. Must disclose report of expert
3. Testifying Experts must be hired to issue facts/opinions in prep for trial
b) Consulting Experts:
1. Do not have to disclose anything
ii. Rule 26(a)(2)
Rule 26. Duty to Disclose; General Provisions Governing Discovery.
(a) Required Disclosures.
(2) Disclosure of Expert Testimony.
(A) In General. In addition to the disclosures required by Rule 26(a)(1), a party must disclose to the other parties the identity of any witness it may use at trial to present
evidence under Federal Rule of Evidence 702, 703, or 705.
(B) Witnesses Who Must Provide a Written Report. Unless otherwise stipulated or ordered by the court, this disclosure must be accompanied by a written report--
prepared and signed by the witness--if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party's
employee regularly involve giving expert testimony. The report must contain:
(i) a complete statement of all opinions the witness will express and the basis and reasons for them;
(ii) the facts or data 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.
(C) Witnesses Who Do Not Provide a Written Report. Unless otherwise stipulated or ordered by the court, if the witness is not required to provide a written report, this
disclosure must state:
(i) the subject matter on which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705;
and (ii) a summary of the facts and opinions to which the witness is expected to testify.
(D) Time to Disclose Expert Testimony. A party must make these disclosures at the times and in the sequence that the court orders. Absent a stipulation or a court order,
the disclosures must be made:
(i) at least 90 days before the date set for trial or for the case to be ready for trial; or
(ii) if the evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party under Rule 26(a)(2)(B) or (C), within 30 days
after the other party's disclosure.
(E) Supplementing the Disclosure. The parties must supplement these disclosures when required under Rule 26(e).
iii. Rule 26(b)(4). Trial Preparation: Experts.
a) (D) says ordinarily you cannot depose or get disclosures from non-testifying
experts EXCEPT under (b)(4)(D)(ii) » showing exceptional circumstances that
makes it impractical for party to get facts or opinions any other way
[Example: 3 experts in the world; they all died; no other way to get
comparable information]
Thompson v. Haskell [FACTS: Dr. Lucas = consulting expert so none of his reports would be discoverable
EXCEPT if there no other means for the defendant to get such info about the plaintiff’s mental state 10 days
after she was fired by the defendant employer] [HOLDING: defendant’s request falls under the exception
to the usual (b)(4)(D) rule]
Chiquita v. Reefer [RULE: A party may not discover facts known or opinions held by an expert who has
been retained or specially employed by another party in anticipation of litigation or preparation for trial and
who is not expected to be called as a witness at trial except upon a showing of exceptional circumstances
under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same
subject by other means]
Hickman v. Taylor [RULE: Production of witnesses might be discoverable only when witnesses are no
longer available or can only be reached with difficulty]
F. Discovery Sanctions
i. Rule 37 » Enforcing Discovery
a) Security National Bank v. Abbott Laboratories [RULE: Under 37(b), a court has
wide latitude in determining sanctions for discovery violations]
Rule 26. Duty to Disclose; General Provisions Governing Discovery.
(e) Supplementing 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:
(A) 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
(B) as ordered by the court.
ii. Rule 60(b) » permits reopening of the case even after judgment is entered on a defaults for
“any reason that justifies relief”
Rule 60. Relief from a Judgment or Order.
(b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion and just terms, the court may relieve a party or
its legal representative from a final judgment, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under
Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released or discharged; it is based on an earlier judgment that has been reversed or vacated; or
applying it prospectively is no longer equitable; or
(6) any other reason that justifies relief.
Peralta v. Heights Medical [RULE: A requirement of due process in any proceeding is notice reasonably
calculated to notify interested parties of pending action and afford them the opportunity to present their
objections.
ISSUE: Can default judgment be set aside for failure of service because party cannot show he has a
meritorious defense to the claim
Reasoning: Yes, a fundamental requirement of due process in any proceeding is NOTICE [notice is
important because it notifies parties of the pending action and thus, affords them the opportunity to
present their objections.
The courts below held that defendant was not harmed by the entering of the default judgment
because he could not show that he had a meritorious defense to the action
Court rejected this reasoning of the lower court reasoning that defendant (Peralta) was harmed and it
could have impleaded the employee, negotiated a settlement, paid the debt, or sold the property
himself to pay the debt [all of which were precluded because defendant had no notice of the action]
Holding » failure of notice = violation of due process rights » grant of plaintiff’s MSJ is REVERSED.
B. Involuntary Dismissal
i. Rule 16 » Scheduling Orders [tells us what the judge “may do”]
1. 16(b) says a judge “must issue a scheduling order” unless the case belongs to an
exempt category » scheduling order must limit the time to: join other parties; amend
the pleading; complete discovery; file motions and it may set other dates too
ii. What can a defendant do if the plaintiff ignores a scheduling order’s deadlines or fails to
move suit forward? » Rule 41(b)
2. 41(b) [and other similar state statutes] allow for involuntary dismissal if plaintiff
“fails to prosecute” » failure to prosecute or some other grounds = reason for court to
permit involuntary dismissal
iii. Caussade v. United States [court involuntarily dismissed after plaintiff failed to make herself
available for a deposition, failed to fix mistakes in interrogatory responses, never made initial
disclosures, did not appear at pretrial conference, and did not keep in contact with her
attorney for months at a time]
C. Voluntary Dismissal » [Rule 41(a)]
Where do we get power to voluntarily dismiss a case? » Rule 41(a)
41(a)(1)(A)(i) » allows plaintiff to dismiss any time before defendant answers
Plaintiff can voluntarily dismiss at any time before defendant answered » after that, you need either:
(1) Court’s permission [(a)(2)]; or (2) Agreement from the opposing party [(a)(1)(A)(ii)]
(a)(1)(A)(ii) allows plaintiff to dismiss a suit at any time if all the parties agree
(a)(2) authorizes a voluntary dismissal after defendant answers only by permission of the court
i. Texaco v. Pennzoil [Facts: Plaintiff originally filed in Delaware » defendant opposed
injunction sought by plaintiff but did not answer » court denied plaintiff’s request for
preliminary injunction suggesting they would lose on merits of case » plaintiff quickly took
voluntary dismissal » refiled in Texas court » Texas jury eventually awarded plaintiffs $10
billion]
1. Take-Away Points: Since defendant did not answer Delaware complaint yet,
voluntary dismissal was available without court approval!
2. Defendant’s failure to answer » “one of the most expensive tactical errors ever
committed in a lawsuit”
3. Example of a case where the availability of a voluntary dismissal was catastrophic to
defendant
4. Advice for Lawyers: If a voluntary dismissal will harm your client » ANSWER
[PLAINTIFF’S] COMPLAINT PROMPTLY! Lock plaintiff into forum where suit
was brought before plaintiff dismisses and brings in new [more favorable] state
a. We [lawyers] want to AVOID this because if a court is favorable to the
plaintiff » likely to harm our clients
Reid v. San Pedro Railroad [RULE: In order to establish liability of the defendant, the plaintiff must prove
liability by a preponderance of the evidence]
Further, when undisputed evidence of the plaintiff [giving rise to an inference of an essential fact] points
to two things with equal weight [50/50] and only one of the things will render the defendant liable, the
plaintiff must fail.
In such cases, the plaintiff will only prevail if she successfully showed [by a preponderance of
evidence] the facts and circumstances that would establish liability of the defendant
Penn Railroad v. Chamberlain » RULE: In cases where proven facts give equal support to each of two
inconsistent inferences and the plaintiff failed to maintain the proposition [desired inference of a fact] that
would establish the right to recover [and the defendant’s liability], then...
Judgment must be granted for the defendant because the plaintiff did not satisfy burden of proof
[preponderance of the evidence] that would warrant the jury to make an inference of [sought after]
essential fact from the evidence.
No evidence points directly to one fact over the other fact thus, jury cannot make a
justifiable inference that the plaintiff’s right to recover relies upon.
When does a case not go to the jury?
12(b) motion
MSJ
Directed verdict [jury is there in court room but jury actually never renders a verdict]
J.N.O.V. [judgment notwithstanding the verdict] » Standard it same as standard for MSJ and DV
DISCOVERY » MSJ » IF MSJ DENIED » TRIAL » AT END OF TRIAL, CASE GOES TO JURY » UNLESS
DV IS GRANTED » IF DV IS GRANTED, CASE DOES NOT GO TO JURY » IF CASE DOES GO TO THE
JURY » AS A RESULT, JURY RENDERS A VERDICT » LOSER [BELOW] CAN ASK FOR JNOV [GIVE
ME VERDICT INSTEAD] AND/OR CNT » COURT CAN COME TO ONE OF A FEW DIFFERENT
OUTCOMES [SEE FOUR OUTCOMES LISTED ABOVE]