Civil Procedure Study Guide

Subject Matter Jurisdiction

Term used to denote whether a court can hear a particular dispute

Subject Matter Jurisdiction of the federal courts is based on 2 kinds of consideration:

1331: when the nature of the claim arises under the constitution, laws, or treaties of the U.S.
1332: Diversity of Citizenship (more restrictive)
• Citizens of different states (must be domiciled in state w/ intent to remain there indefinitely)
AND
• Issue exceeds more than 75k exclusive of interest & costs

Article III Sec. 2 – doesn’t say anything about 75k, congress has power to limit Art. III Sec. 2

Facial Motion
On its face there’s lack of jurisdiction

General Jurisdiction:
Courts can hear any kind of claim between any persons unless there is legal authority saying they cannot
hear a particular case

Limited Jurisdiction:
- Only hear those cases that are specifically authorized by the statute that set up the particular court
(specific area of law)
- All federal courts are courts of limited jurisdiction

Concurrent Jurisdiction:
Jurisdiction exercised simultaneously by more than one court over the same subject matter and w/in same
territory
- federal questions don’t have to be heard in federal court, state court have concurrent jurisdiction
- 1331 allows, doesn’t require case to be brought in federal court

Exclusive Jurisdiction:
A court’s power to adjudicate an action or class of actions to the exclusion of all other courts – narrow
subject matter (ex. Probate, bankruptcy)

Original Jurisdiction:
A court’s power to hear and decide a matter before any other court can review the matter (appellate courts)

After deciding whether to file a case in federal or state court it may be brought only in a state where the
defendant is subject to personal jurisdiction.

Personal Jurisdiction:
The state or federal ct. must have the power to render judgment against the particular defendant

Venue:
Place of trial
- A suit lies open to a defendant’s challenge unless the court has subject matter jurisdiction,
personal jurisdiction, and venue
Case is permitted to be brought where either party resides, where the claim arose, or where a defendant is
doing business

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Rule 8: Pleading

8(a)
Three Components of a Complaint
• (1)Short and plain statement upon which jurisdiction depends
• (2) Show pleader is entitled to relief
• (3)Demand for judgment of relief
8(b)
In responding to a complaint if the defendant does not know whether the allegations are true, he may deny
the allegations until he finds out

8(c): Affirmative Defenses

- Admits the facts in the complaint, but avers (claims) that a ∆ still has no legal responsibility for its
actions because of some additional element
- Such a defense must be set forth in the answer

8(d)
Claims are admitted when not denied

8(e): Pleading in the Alternative

When two or more statements are made in the alternative and one of them if made independently would be
sufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternative
statements.
Ex. D never borrowed a kettle; D returned the kettle in perfect condition; the kettle was broken when D
borrowed it. (perfectly fine pleading)

7 Responses to any complaint:

1. denial
2. “not here” subject matter jurisdiction – better done in a motion so as to not get into all the facts
3. more definite statement 12(e)
4. “so what” 12(b)(6)
5. affirmative defense 8(c)
6. counter claim
7. impleader

Claims:
Counter-claim: claim against opposing party
Cross-claim: against parties on same side of v: Rule 13(g)
Third-party claim: not a principle party but some how involved in the transaction (Rule 14)

Compulsory Counterclaims: Rule 13(a)

- a pleading shall state as counterclaim any claim which at the time of serving the pleader, arises out
of the same transaction or occurrence that is the subject matter of the opposing party’s claim
- If claim is not brought in answer, then you lose it

Permissive Counterclaims: Rule 13(b)

- a pleading may state as a counterclaim against an opposing party any claim NOT arising out of the
transaction (purpose is to squash all beef between parties at the same time)

Permissive Joinder: Rule 20

The optional joinder of parties if
1. Their claims must arise out of the same transaction or occurrence and,
2. Any legal or factual question common to all of them will arise

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 - Plaintiff has the choice of who to join as a co-plaintiff and co-defendant (party autonomy)
- Defendants force parties into the lawsuit to avoid possible prejudice to both existing and
excluded parties
Compulsory Joinder:
Bringing a party in by order of the court even though opposing party might not want him there

Intervention: Rule 24 (b)

A party has a right to intervene when a lawsuit conducted without him has the potential to inflict real
hardship on him
- Its up to the plaintiff whom should join
- Other party usually should sue later

Impleader: Rule 14
A procedure by which a third party is brought into a lawsuit, esp. by a defendant who seeks to shift liability
to someone not sued by the plaintiff

Questions

1. P sues D for negligence. Can D counterclaim based on accident?

Yes, under rule 13a D has the right to counter sue if the claim arises out of the same transaction or
occurrence that is the subject matter of the opposing party’s claim and does not require the presence of
third-parties whom the court cannot acquire jurisdiction

2. P sues D for negligence. Can D counterclaim based on prior debt?

Yes, under rule 13b the counter claim does not have to arise out of the same transaction or occurrence.
The purpose is to squash all legal issues parties have with each other

3. P sues D and D-2 for negligence. Can D bring claims against D-2 based on same accident?
Yes, under rule 13g crossclaims.

4. P sues D for negligence. Can D bring in TPD arguing that TPD failed to fix brakes properly?
Yes, under the Impleader Rule 14 the defendant may seek to shift liability to TPD who may have
contributed to the accident.

5. P sues D for negligence. Can I who was also involved in accident intervene in case as P-2?
He can under Rule 24b of Joinder, but not likely because plaintiff has the right to coose who will be in
the lawsuit. I should sue later

6. P sues D “metro” for negligence based on accident on subway escalator. Can P-2 join claim
for negligence based on accident on metro bus on the same day.
No, under rule 20a a party wishing to join a claim their incident must be based on same transaction or
occurrence, not enough that it was the same company on the same day.

7. If P asks D deposition questions which call for inadmissible hearsay answers then the
questions are improper under the rules of discovery?
F. Pursuant to rule 26b1, the discovery need not be admissible at trial if the information sought appears
reasonably calculated to lead to the discovery of admissible evidence.

8. Litigants may not obtain documents from non-parties pursuant to discovery rules?
F. Pursuant to rule 34c and 45 a person not a party to the action may be compelled to produce
documents and things or to submit to an inspection.

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 9. If P sues D for mental distress based on a housing discrimination claim, then D cannot
inquire into the frequency of P’s sexual relations with her husband.
F. Pursuant to rule 35, once a party brings mental distress into the equation the opposing party has the
right to privileged information. It becomes fair game.
10. A party may inquire pursuant to the rules of discovery, into any substantive area relevant to
a claim or defense of a party, but not credibility or bias?
F. According to Butler v. Rigby you may inquire into any area – everything is fair game and be
brought into the discussion.

11. If a party believes that the opposing party’s discovery requests are harassing and
burdensome, then the party should immediately file for a protective order?
F. Pursuant to rule 37a2 before filing for a protective order the party must file a motion including a
certification that the party tried to resolve matter without court intervention.

Preclusion:
Claim Preclusion (Res Judicata)
- An affirmative defense barring the same parties from litigating a second lawsuit on the same
claim, or any other claim arising from the same transaction or series of transactions and that could
have been, but was not raised in the first suit.
- The issue before the court has already been decided by another court, between the same parties.
Therefore, the court will dismiss the case before it as being useless.
- Plaintiff must be the same parties

- P can’t sue for property damage then for personal damages. The claim is precluded by claim
preclusion because P should have brought both claims together. (Rush)

- In a situation where P’s insurance company sues D then P also sues D, if D wants to preclude
claim because although he was negligent, P should have brought claim in first case with
insurance company, P is allowed to bring claim because P has plaintiff autonomy – the
motion would be denied as a valid exception to claim splitting

3 Essential Elements
1. an earlier decision on the issue
2. a final judgment on the merits
3. the involvement of the same parties, or parties in privity with the original parties

Issue Preclusion (Collateral Estoppel)

- An affirmative defense barring a party from relitigating an issue determined against that party in
earlier action, even if the second action differs significantly from the first one
- The situation in which a judgment in one case prevents (estopps) a party to that suit from trying to
litigate the same issue in another legal action. In affect, once decided, the parties are permanently
bound to that ruling.

- If D is already found to be negligent in first case, P could assert that D is precluded from
arguing that he is not negligent in the second case based on issue preclusion because D was
already found to be negligent.

- D can’t say that P is precluded because it was already found in another case that D wasn’t
negligent because P is entitled to her own day in court and has plaintiff autonomy.

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 Appeals:
Addresses the correctness of the trial court rulings that are likely to have affected the outcome

Prejudice
- Determines whether a party can re-file a claim and whether it is appealable
With Prejudice – final judgment (appealable)
Without Prejudice – Correctable and can bring it again (non-final)

The Final Judgment Rule (28 USC 1291)

- The court of appeals shall have jurisdiction of appeals from all final decisions of the district courts
of the United States.

Interlocutory Decisions (28 USC 1292)

Non-final rulings
- If anything is left to do on case (ex. when it’s a partial summary judgment), it is interlocutory
unless it’s an injunction 1292(a)

Which of the following decisions would an immediate appeal lie?

1. A trial court order granting dismissal for want of subject matter jurisdiction.
Appealable – this a final judgment
2. A trial court order refusing to dismiss for want of subject matter jurisdiction.
Not Appealable - this is not a final judgment, the case still goes on.
3. A trial court order denying a 12(b)(6) motion .
Not Appealable – this is not a final judgment
4. A trial court order granting a 12(b)(6) motion.
Appealable – if it’s with prejudice????
5. A trial court order granting or denying requested discovery.
Not Appealable – not a final order

Standards of Appeal
3 Questions for Appellate Judges to Decide
1. Clearly Erroneous (facts)
2. De Novo (strict scrutiny of law) – less deference
3. Abuse of Discretion (whether judges abused their discretion)

4(d)(3)
A defendant that, before being served with process, timely returns a waiver so requested, is not required to
serve an answer to the complaint until 60 days after the date on which the request for service was sent, or
90 days if ∆ is addressed out of country. (∆ usually has 20 days to answer)

To avoid costs, the π may notify such a ∆ of the commencement of the action and request that the ∆ waive
service of a summons.

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 Section 2
The Process of Litigation

Number of civil cases in state and federal court

State – 98%
Federal – 2%

Contracts: Most cases are tried to a judge (bench trial), Plaintiffs win about 62% of the time, The average
recovery is 37k

Torts: 85% of cases that reach trial go before a jury, Defendants win 51% of the time, The average recovery
is 31k

Substitutionary Remedies
Money damages that seek to provide the plaintiff with a reasonable substitute for his or her loss
- For many claims, specific remedies are impossible (can’t replace limb or pain)
- Money may be a poor substitute, but only a substitute is possible

Economic Damages
The damages at stake will compensate the plaintiff for money he has either lost or has had to pay –
sometimes extended to pain and suffering
- no definite standard or method of calculations in prescribed by law nor is opinion of any witness
required as to the amount of such reasonable compensation
- Sometimes 3 times the amount of economic damages for pain and suffering

Mitigation
- party claiming damages has the duty to minimize damages as much as possible
- usually in contract cases

Liquidated Damages
- An amount contractually stipulated beforehand as a reasonable estimation of actual damage to be
recovered by one party if the other party breaches
- If the parties to a contract have agreed in liquidated damages, the sum fixed is the measure of
damages for a breach, whether it exceeds or falls short of the actual damages

Statutory Damages
Statutes that set minimum damages not specifically tied to the amount of the loss suffered.

Punitive Damages
Damages awarded in addition to compensatory damages when the defendant acted w/ recklessness, malice,
or deceit
- Aimed entirely to punishment defendant
- In some jurisdictions plaintiff may introduce testimony as to defendants net worth
- An exception to the general rule that damages serve only to compensate plaintiff
- Willfulness or some malicious intent is generally required

Guide Posts
1. The degree of reprehensibility of ∆’s

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 2. The disparity between the actual harm or potential harm suffered by π and the punitive
award
3. The difference between the punitive damages awarded by the jury and the civil penalties
authorized or imposed in comparable cases

Factors in Determining Reprehensibility

1. Was harm caused physical rather than/as opposed to economic
2. Tortious conduct involving an indifference to or a reckless disregard to health or safety of others
3. Financial vulnerability
4. The conduct involved repeated actions or was an isolated incident
5. The harm was a result of intentional malice, trickery, deceit, or mere accident

Irreparable Injury Rule

The principle that equitable relief (such as an injunction) is available only when no adequate legal remedy
(such as monetary damages) exists.

Questions
1. How many cases filed in US? What kinds? What courts?
90 million, mostly contracts and torts w/ juvenile and family as well, 98% in state court

2. Are those numbers too high?

No, 7.5 cases for every one person

3. Which courts have the highest litigation percentages? Are these rates higher in countries which
are particularly peaceful?
Those countries w/ high GDP have high litigation percentages. Not necessarily in peaceful countries -
Yugoslavia has highest percentages

4. Why is there so much more litigation in state courts than federal courts?
Most issues between parties don’t qualify for federal court under 1331 and 1332

5. So why are we studying federal rules?

35 states have adopted rules – it is the most used

6. If you walk into an urban court room and listen for three minutes, why can you tell which party
has a better chance of winning?
If it is a bench trial, it is probably a contracts case which the plaintiff wins 62% of the time, if it is a jury
trial, it’s probably a torts case which the defendants win only 51% of the time.

7. How are tort suits financed? K suits? Is that a factor in which side prevails?
- In torts, suits are usually financed through a contingence fee (a fee charged for a lawyer’s services only if
the lawsuit is successful or is favorably settled out of court).
- For contracts, there is no contingency fee, lawyers are paid by the hour. In contract cases, because they
get paid by the hour, lawyers may put more time into the case thus being the reason plaintiffs are more
likely to win (62%).

8. If Congress jettisons (discard) diversity jurisdiction, will that swamp state courts?
No, it will only be about 1.5 % of the cases because diversity issues are only about 25% of the federal cases

10. What makes a civil case lawyer worthy?

If the potential recovery is greater than the cost of litigation

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11. How can D figure out how much P is really seeking, particularly when P’s statement of relief is
“damages in amount over 75k” or “damages as proved” in state court?
Through discovery and disclosures 26(a)

12. What’s wrong for P in a contract case to ask the jury “to send a message to D” in their verdict?
The message indicates that P is asking for punitive damages. Punitive damages are not allowed in contract
cases –the damages have to be foreseeable, punitive damages are not foreseeable, they just seek to punish.

13. As P’s attorney, why would you rather litigate an allegation of fraud than just breach of contract
in a car case, e.g. dealer sold used car as new?
Fraud is a tort and suing for fraud will allow me to seek punitive damages barred in contract cases.

14. How might you measure compensatory damages in such a claim? Are those compensatory
damages “lawyer worthy.”
Maybe by just replacing car with a new car. May not be very lawyer worthy is P only gets the right car, the
cost and the recovery would be equal .

15. Is it possible to get too good of a verdict on a fraud claim?

Yes, if there was no physical harm and if the punitive damages are excessive , sometimes over 9 times the
amount of the compensatory damages ,then the defendant would ask for the verdict to be lowered. Also, the
compensatory damages may have provided enough of punishment to make excessive damages unnecessary.

16. Assume compensatory damages in this case are 25k. How much total damages could P get if P
proved fraud? What conditions or facts would enhance the damages?
P could possibly get 250k – that is 225k in punitive damages (9 times the amount of the compensatory
damages) -plus the 25k in compensatory. – the actions could be egregious

17. After State Farm, would it ever be possible to get 15 million in punitives on a verdict for one
million? What about150k on a verdict for 10k?
Probably not, State Farm says any punitive damages over 9 times the amount of the compensatory damages
is excessive unless the compensatory damages are low (about $5,000) then it would probably be okay.

18. What if P offered evidence that the dealer regularly lied about the mileage on used cars?
The court would punish him for his bad dealings in this instance regarding the punitive damages, not for
prior incidences, but will take that into account.(particularly egregious)

19. Does State Farm have any broad implications for civil litigation?
When awarding punitive damages, the punishment should only be towards the individual incident and not
including the history of the ∆ in its calculations. Excessive amounts do not satisfy due process.

20. What similarities and differences do punitive damages have to criminal sentencing? Should we
make them similar? How?
When sentencing in criminal cases the goal is to punish and deter future behavior which is similar to civil
cases.

21. If Acuna and twenty other women sue UDC for gender discrimination, the can designate a
typical representative to testify regarding emotional distress on her behalf?
F – each woman would have to testify on her own behalf regarding emotions even in a class action suit.
(testimony must be individualized)

22. If Davis knocks a hole in Peary’s car trunk, then Davis will be liable for all rain damage during
the next year for all of P’s expensive art works which he stores there?
False – It is P’s duty to remove the art work from the trunk as it is his duty to minimize the damages as
much as possible.

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Specific Remedies
When the courts order parties to do or refrain from doing things
- courts can enlist the help of officials in recapturing personal or real property from ∆ who’s
wrongfully possessing or occupying it

Types
- decree of specific performance
- ejection (off property)
- replevin (return of an item to its owner)
- injunctions (ct. order directed to parties commanding them to do or stop doing any range of acts)
- constructive test (preventing one from profiting from his abuse of trust
- cancellation
- Rescission (revocation of contract, courts act as if contract had never been formed)
- Reform

Actions at Law and in Equity

Courts of Common Law (Legal)

- administered legal remedies
- money damages
Legal relief is usually substitutionary, must be inadequate to get equitable relief

Courts of Chancery (Equity)

- administered equitable remedies
- must show legal relief was inadequate/irreparable or injunction will be denied
- must prove money can’t compensate loss
- tried to judges
- injunctions most prevalent form of equitable relief
Rule 1
Merges the two court system so that one court system can grant both reliefs, easier for lawyers

Sigma v. Harris
Issus:
Whether Sigma was entitles to permanent injunctive relief against Harris

Rule:
In determining the validity of a restrictive covenant is whether it is reasonable – 3 Components
1. Must be reasonably necessary to protect employers legitimate interest
2. Reasonable in terms of temporal cope
3. Reasonable in terms of geographical scope
Holding:
Sigma was entitled because the harm to them outweighed the harm to Harris (harm was irreparable)

Rule 57: Declaratory Relief (§§2201 and 2202)

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A binding adjudication that establishes rights and other legal relations of the parties w/out providing for or
ordering enforcement
- used when neither damages nor a specific remedy can solve the problem
- also used for testing constitutionality of legislation
- may be chosen even when there are other avenues open
- no coercion like injunctions, just simply a declaration of the rights of the parties
- when a party asks to see know what the effects of his act are to clear up any confusion

Financing Litigation

Contingent Fees
An agreement between lawyer and client where the lawyer agrees to provide legal representation , with the
fee to be paid from the proceeds of any settlement or recovery
- the lawyer agrees to forgo a fee entirely if there is no recovery
- the lawyer could use the agreement as collateral to get a loan from a bank
Two Approaches:
1. Large inventory of cases w/ varying merit
2. Small inventory of carefully screened cases
- the fees is not really contingent in these type of cases when the lawyer knows it is highly likely
he will when win – in this way lawyers cannot justify the increased percentage fee for
successive stages of litigation
Incentives/Criticism
- the lawyer can get paid 30% of $100,000 for 5 hours of work on cases they know they are
highly likely to win.
- If they would have charged the client hourly the fee would have been substantially lower

Hourly Fees
A specified hourly rate the client pays the attorney
- single most common financing mechanism for U.S. litigation
- mostly contract and commercial litigation are financed this way
Incentives
- if the lawyer knows the amount of hours needed to be successful on a case will cost more
than the potential award they can decline the case
- lawyers can claim a case will take more hours to resolve then it actually will, therefore
overcharging the client

Insurance
Neither party pays for the cost of litigation when they have insurance, the insurance company’s lawyers
takes over the case
- Insurance companies pay the cost of litigation and the award to the opposing party (at least the
amount insured for)

Free Lawyers
Helps 2 good-sized groups w/out representation:
1. persons with small claims
2. persons without liquid assets who are nevertheless sued
Insurance only helps those with it and contingent fee systems only help those who seek to recover money
damages (and enough damages to justify the lawyer’s investment of time)
- funded w/ a combination of tax dollars and private support
- some subsidized legal services are formed around a cause – an ethnic, religious or affinity
group w/ an agenda for social change

Asymmetry of Fee-Shifting

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A prevailing π collects a least partial fees from a ∆, but prevailing ∆ does not collect fees from a losing π
unless π has sued in bad faith
By Contracts
- parties to contracts may provide that if litigation over the contract arises, the loser will
pay the winner’s legal fees - may be asymmetrical in theory, but cts and legislatures have
often required that such asymmetrical clauses be interpreted as symmetrical – loser pays
winner’s fees

Symmetrical
Loser pays the winner’s fee

Common Fund
If a π brings a lawsuit that benefits him, but in the process benefits others similarly situated the original π
could recover part of his attorney’s fees from the fund that his efforts created
Theory
- requires that the π efforts create some fund from the which the lawyer’s fee can be
deducted
- does not itself shift fees from one party to another; instead it requires that all who benefit
from the recovery share its cost
- shares fees among similarly situated persons rather than shifting them to the opposing
party
Ouestions
1. Student A sues a school alleging that they have, w/out legal authority, increased tuition; she sues
on behalf of all students and recovers $4 million in excess tuition payments to be distributed
among those paying the excess tuition? Does common fund theory apply?
Yes, because other benefited from his efforts and can get refunded – there was actual money loss that
could be recovered

2. Student B sues a school alleging that the tuition increase about to go into effect is unauthorized.
He prevails, and the court enters an injunction forbidding the tuition increase. If B had not brought
this suit, all students would have been required to pay higher tuition, the total sum amounting
around $4 million? Does common fund theory apply?
No, the other students didn’t lose anything yet that they can recover from. There is no proof of how
much money they would have lost to figure out how much to compensate them for.

The American Rule

The system in which each party pays its own legal fees

Rule 54(d): Judgment; Costs

Costs other than the attorney’s fees shall be allowed to the prevailing party unless the court otherwise
directs.
- This is a an exception to the American Rule
- If there is a fee shifting statute, the party may also get attorney’s fees.

Statutes: 1988(b) – Fee Shifting Statute

In any action or proceeding to enforce various civil rights statutes, the court, in its discretion, shall allow
the prevailing party, other than U.S., a reasonable attorney’s fee as part of the cost.
- used to encourage π’s to sue under civil rights issues and to make it easier to enforce civil
rights. (race, gender, disability, age, national origin, familial status, DC Human Rights –
personal appearances, sexual orientation, source of income)
- the fee shifting statute is only there to benefit π, not ∆, unless π’s claim is frivolous,
unreasonable, or groundless ∆ can get attorney fees, but π will still have to pay costs
when verdict is less.???????????

Rule 68: Offer of Judgment

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If a verdict is less than the offer, the π gets the verdict and the cost incurred before the offer, but has to pay
the ∆’s cost after the offer.
- If π costs are the same as ∆ costs then they cancel each other out and π gets nothing because
she has to use the cost owed to her to pay ∆’s cost.

Elements of an Offer:
1. In writing and signed
2. by ∆ (or π in a counterclaim)
3. At least 10 days before trial

Other Info
- Enable a ∆ to avoid part of what would otherwise be costs taxed to a losing party
- No effect when verdict is more than the offer
- Those costs do not in an ordinary case include attorney fees, unless there is a fee shifting
statute.
- The costs are usually minor, including depositions and subpoenas, nothing big, biggest item
is transcript fees – no expert witnesses.
- Purpose is to encourage parties to settle

6 months into suit (compliant w/68) next 6 months including trial

filed $500 ∆ makes Offer to settle for 10k π rejects At trial π wins Verdict 8k
(in taxable costs under 54 if win )

How much in costs (court costs) will π recover under Rule 54?
π will recover costs before the offer and the verdict because the verdict was 8k and the offer was 10k, the
verdict was less than the offer. But π will have to offsets her costs with that of ∆.

When verdict is more than offer, does π have to still pay ∆ costs
No because 68 has no effect when verdict is more than offer??????

Questions: Agenda 9/19/05

Why False

1. The Campbell court imposed rigid benchmarks in its analysis of the ration between compensatory
and punitive damages?
F – Its flexible, not rigid

2. Common law (legal) historically only granted substitutionary remedies?

F – The Courts of Common law granted substitutionary and specific remedies because substitutionary
encompasses specific remedies such as ejection

3. In a case seeking both damages and injunctions per Rule 1, a jury may grant injunctive relief?
F – The judge grants injunctive relief, not the jury, but a party can ask for both by pleading inconsistently.

4. Like injunctive relief, declaratory relief can order a party to desist from certain behavior?
F – Declaratory relief is used to establish rights and other legal relations and to clear up any confusion
between parties w/out providing for or ordering enforcement.

5. If P wins a case, under the American Rule, P is not entitled to the costs of his depositions.
F – If P wins, P is entitled to the costs accumulated before the verdict pursuant to Rule 54 as an exception
to the American Rule.

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6. Flat rates are a common way for attorneys to get paid on simple negligence cases?
F – Negligence cases aren’t predictable. Flat rates are usually used for divorces, wills, and bankruptcy.

7. P may collect expert witness fees if P prevails

F – P may only collect minor costs such as depositions, copying, and transcripts.

8. If D makes a valid Rule 68 offer and P receives less at trial than the offer, then P gets no costs?
F – When the verdict amount is less than the offer P will get costs and the verdict under Rule 68 but will
have to pay ∆ costs which might cancel out her own costs.

9. If P makes a valid Rule 68 offer and P receives less at trial than the amount of the offer, then P
must pay D’s attorney fees incurred after the offer?
F – Plaintiff’s don’t make offers unless it’s in a counterclaim.

10. In a normal auto accident, an insurance co. will represent D for free, but P will have to pay for a
lawyer?
F – If P has insurance, the insurance company will provide the lawyer for free or there may be a contingent
arrangement or the lawyer may do it pro bono

11. If P’s do not have to pay lawyers fees, then Ps will tend to bring more frivolous cases?
F – If P’s don’t have to pay lawyer fees, the idea is that it would encourage more P’s to bring civil rights
suit.

12. High volume tort lawyers do not receive any more ethical complaints than low volume lawyers?
F – High volume tort lawyers spend more time on their cases and receive probably about the same amount.

Questions: Agenda 9/21/05

True or False

1. If your lawsuit rolls back future tuition for all UDC students, then you are entitled to attorney’s
fees from a common fund?
F – The students didn’t lose anything yet that they can recover from.

2. If you represent the ∆ law school in a gender discrimination suit and you prevail, then you are
entitled to fees. Assume 1988(b) applies.
F – Fee Shifting statutes are designed to benefit the π. ∆ will get attorney fees only when π’s claim was
frivolous, unreasonable, or groundless.

3. ∆’s in civil rights actions cannot obtain fees?

F - ∆ can get fees when π’s claim is f.u.g.

4. Free lawyers such as DAC clinic are not entitled to fees – ever?
F – They are entitled to fees if there is a fee shifting statute

5. The court has unfettered discretion whether to grant fees in a civil rights case?
F – The court may grant fees when a fee shifting statute applies.

6. If P makes an offer of judgment not accepted by D, then P is entitled to all costs after the offer only
if P wins more than the amount of the offer.
F – Plaintiffs do not make offers unless it is in a counterclaim where they then become the ∆.

7. If D calls P and makes an offer which P declines, and, if P receives less than the offer at trial, then
P must pay D’s cost incurred after the offer?
F – D has not made a valid offer. All offers must be in writing and signed by ∆.

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8. If D makes a valid offer of judgment which P declines and if D wins at trial, then P must pay all of
D’s costs, including fees.
F – π will have to pay ∆ costs after the offer, but not the fees, unless there was a fee shifting statute and π’s
claim was f.u.g.

9. If D moves for summary judgment, and then makes a valid offer, while the motion is pending, then
P may not timely accept the offer if the court grants summary judgment.
T – Offer trumps the summary judgment motion. (P has 10 days to accept offer. If judge grants SJ before
10 days, P can still accept offer)

10. If P sues for gender discrimination and does not accept D’s offer of judgment while the motion
for 50k, then P is nevertheless entitled to all statutory fees if P wins 10k.
T – gender discrimination is recognized under 1988(b) as a fee shifting category allowing P to collect at
least partial pre-offer attorney fees even if verdict is less than offer. What if π loses? Does she still get
attorney fees. – no only prevailing party gets attorney fees.

11. If the lease agreement said T to pay fees if sued, then fees to LL no matter who wins.
F – Asymmetrical should be interpreted as symmetrical, so courts wont grant fees???

12. If Ospital had lost his arm in the Campbell case, he would have suffered irreparable harm.
F – Not irreparable because he can be compensated for the lost of his arm there can be no injunctive
relief because the arm is already lost.

14. P sues D for disability discrimination in housing. D enters a consent decree agreeing to make
units more accessible. P asks for fees. What result?
P would get fees because disability is a category under the civil rights statutes allowing for prevailing party
to obtain fees.

Buckhannon

Prevailing Party
Under Buckhannon, in order to be the prevailing party there must be a verdict, order, or consent agreement.

Catalyst Theory
Posits that a π is a prevailing party if it achieves the desired result because the lawsuit brought about a
voluntary change in ∆ conduct – fees will not be awarded absent “explicit statutory authority.”

The Doctrine of Mootness

Provides an escape hatch for a ∆ willing to give up immediately, if the only relief sought by π is an
injunction or similar forward looking relief so that if they moot the issue when they know their going to
lose they won’t have to pay the other sides cost and fees.

The effect of Buckhannon on other cases 3(b)

It is likely not to effect other cases because facts aren’t likely to be duplicated.

Provisional Remedies
Relief pending final adjudication of the dispute (TRO’s for battered women, the small business threatened
by a competitor’s unlawful action will be bankrupt if is has to wait for full blown adjudication.)

Appeals §1292(a)(1)

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Though in appeals in the federal courts generally lie only from final judgments of the district courts,
§1292(a)(1) creates an exception allowing interlocutory appeals from orders “granting, continuing,
modifying, refusing, or dissolving injunctions.
- Seizure
- Garnishment: involving some third party not to pay ∆ money due to him because the π has a
claim on it

Rule 65(a): Preliminary Injunctions or TRO are a provisional form of injunctive relief – appealed right
away
Entitled to a preliminary injunction only when: Factors
1. π will probably prevail on the merits and will ultimately win, and
2. π will suffer irreparable injury if injunction is not granted, and
3. In balancing the equities, ∆ will not be harmed more than π is helped by the injunction, and
4. Granting the injunction is in the public’s interest
Alternative Test for Provisional Injunction Relief
One moving for a preliminary injunction assumes the burden of finding that serious questions are raised
and the balance of hardships tips sharply in their favor. If the harm that may occur to the π is sufficiently
serious, it is only necessary that there be a fair chance of success on the merits, as supposed to having the
probability of success.

Justification: w/out them π may suffer severe hardships, in some cases extreme enough to render a final
remedy meaningless – they exist because final remedies are too slow.

Rule 65(c): Bonds

If preliminary relief is granted but the court’s final decision is in the ∆’s favor, ∆ may have suffered harm
during the time the preliminary injunction was in effect. One response to this concern is to require π’s
seeking preliminary relief to post a bond intended to cover such damages losses. No such security shall be
required of the government.

Exceptions for π’s who show a hardship:

- very low bond
- no bond at all, ∆ cannot recover if he ends up winning

Due Process Clause

Before any deprivation of property the following must be present;
1. Notice
2. Hearing
3. Reasonable time and manner (orally is not reasonable)
Exceptions:
1. The seizure has been directly necessary to secure an important governmental or general public
interest (Denver boot)
2. Special need for very prompt action (tow)
3. The person initiating the seizure is a governmental official responsible for determining that it was
necessary and justified (IRS, war effort, economic disaster or bank failure, protect public against
misbranded drugs or contaminated foods) (Sirius rats)

Forbids only a “state” from denying due process, leaving private action entirely unsupervised by the
judiciary, untouched, so as long as he private actors do not violate civil or criminal statutes.

Waiver
A party can waive its right
- Voluntarily
- Knowingly

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 - Language uses in particular contract

Rule 65(b): TRO’s

Every TRO shall define the injury and state why it is irreparable and why the order was granted w/out
notice.
- The injunctive equivalent of a seizure w/out a hearing.
- Can be granted w/out notice
- May be issued with even less process than preliminary injunctions
- Under limited circumstances (situations which call for drastic action) a TRO may be issued ex
parte (w/out the presence or knowledge of the other party).
- Aren’t interlocutory, therefore not appealable

Self- Help Repossession

When it can be accomplished w/out breach of peace, does not involve state action – therefore will leave
those repossessing cars largely unaffected by the DPC.

Questions: Agenda 9/26/05

True or False

1. Fuentes holds that consumers cannot waive their rights to hearings before a state assisted
deprivation of property.
F – There was a bargain

2. The placing of a “Denver boot” on a car constitutes a DPC violation.

F – Doesn’t have to give notice because of exception to Due Process # 1

3. If Acuna claims that she owns the “bike” which Zarkin is riding (which Zarkin claims he is
renting) then she violates the DPC if she uses self-help to retrieve the cycle.
F – DPC forbids a state from denying due process. Private entities may use self-help as long as it does not
breach the peace.

4. If DC Health inspectors find that “Sirius” is infested w/ rats, they can shut it down w/out a DP
hearing.
T – As an exception to the DPC, restaurants with possible contamination can be shut down without DP.

5. If Adams buys a sound system and specifically negotiates a clause waiving his right to a hearing
before a replevin action, then the waiver will be valid.
T – As long as the clause stipulates in what fashion the replevin will take place (language important)

6. If Archer buys a sound system by installment payments and the seller retains legal title to the
system, then Archer does not have a sufficient property interest to invoke the DPC.
F – Archer has property interest and possession of the sound system – ownership is not required.

7. If Baer is wrongfully evicted from his apartment because the landlord changes the locks on his
apartment, then his attempt to obtain an ex parte TRO to place him back in the unit will violate the
Landlord’s due process rights. (Assume the landlord is on vacation)
F – Because he is wrongfully convicted, he may obtain the TRO w/out notice to LL.

8. DC cannot tow Bangit’s car w/out affording her a pre-tow DP hearing.

F – Doesn’t have to give notice because of exception to Due Process # 2

9. If Becker is given notice of a replevin hearing one day before the hearing, then he has no DP issue.
F – The notice must be in a reasonable time and manner

10. If Baratt loses her motion for a TRO, she may appeal immediately.

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F – TRO’s are not final judgments and are not interlocutory.

11. If Batchelor brings a preliminary injunction motion to get rid of the rats in his apartment, he will
not be able to prove irreparable harm.
F – This is an irreparable harm because he wants to get rid of the rats, not money.

Pleading
By writ
Plaintiffs who wanted to get royal justice had to,
1. Convince royal officials that the case was one that warranted royal justice
2. Pay for it

No such thing as a default judgment - ∆ had to appear for the court to proceed further.

∆ assured their appearance in court by two means;

1. Posting what we would now call a bond, called a “gage”
2. Supplying persons, known as “pledges” who would personally promise to assure ∆’s appearance.
Field Codes
Because common law pleadings revealed almost nothing about the real dispute field codes were established
to require not formulas, but facts.

The codes replaced the formulas of the writs with “facts” and the form of action with “cause of action”
Both changes aimed at correcting what was thought to be a major failing of the common law system, but
each created problems.

Disadvantages:
- Pleading litigation did not go away
- Substantive law as incorporated into the forms of action had not been abolished
- Cts interpreted the phrase “cause of action” to refer to the substantive law and treated each cause
of action as mutually exclusive (a fraud claim could only be treated as a fraud even if it was also a
breach of contract)
- Assuming one knew what the cause of action was, allegations were either to specific (mere
evidence) or to general (mere conclusions) both leading to the sustaining of a demurrer

Complaint has to do two things;

1. invoke, at least by reference, a body of substantive law
- need not explicitly invoke a legal framework (Claim for Negligence)
- further info can be found through discovery
2. Sketch a factual scenario that, if shown to be true, fall within that body of law.

If these two aren’t present, a complaint is defective

Common law pleading aimed, above all, at separating two different kinds of disputes: those that focused
on law and those that focused on fact.
- Forced parties to stake their whole case on either law or facts, requiring the parties to agree on
what they were disagreeing about.
- Disputes about law – settled by judges
- Disputes about facts – settled by juries

Dilatory Pleas - all 12(b) motions except 12(b)(6)

These take no position on the facts or the laws. They are responses that delayed the suit, perhaps
permanently, but did not constitute a resolution of its merits
Types
a. Challenges to Jurisdiction (Not here) 12(b)(1)
b. Pleas in Suspension (Not now) – wait until some problem was resolved

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 c. Pleas in Abatement (Not until this defect has been fixed)

Peremptory Pleas
Grappled with the merits/facts of the claim
Types
a. Demurrer (So what) – conceded the truth of the opponent’s factual allegations but challenged their
legal sufficiency – decided by judge: 12(b)(6), law
b. Traverse (Not true) – denied facts, opposite of demurrer – decided by jury 8(b)
c. Confession and Avoidance (Yes, but) 8(c)

Questions: Agenda 9/28/05

1. If the judge doubts the facts in P’s complaint, the judge will dismiss if D brings a 12(b)(6) motion.
F – A 12(b)(6) motion concedes the truth of the factual allegations but challenges their legal sufficiency.
Judges deal with the law, juries deal with the facts.

2. Before a judge dismisses a case for fsc (failure to state a claim), the judge should allow P the
opportunity to amend.
T – π will usually always be given an opportunity to amend within 10 days

3. D swerved and collided with P on Van Ness. Fsc?

No – this claim is sufficient because it sketches a factual scenario that, if shown to be true, falls within a
body of law. (but arguable)

4. The National Weather Bureau failed to predict inclement weather in the vicinity of Sable Island
during the week of 11/10/05, causing the loss of the fishing vessel “Andrea Gale” and her eight crew
member.
Sufficient because it sketches a factual scenario (weathere is just a prediction, probably immune)

5. Domino’s Pizza refuses to deliver at East Capitol dwellings whose tenants are all African-
American.
Need something to say that this area is being discriminated against (maybe it is said only refuses)

6. If a fsc motion is granted, the dismissal is without prejudice.

F – If dismissed without prejudice, then there isno point cause the party can bring the suit again.

7. In Haddle, P’s attorney should have simply stated in a amended complaint that Haddle was under
a contract that had a dismissal for cause provision.
F – Violates rule 11(b)(3)

Permissible?(Is it permissible to use this language in pleadings, inconsistent)

8. D denies negligence. Assuming arguendo D is negligent, then P’s case must be dismissed because of
P’s contributory negligence.
Permissible

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 Quiz 3
Pleading and Discovery

Rule 11
- Regulates the way lawyers and clients conduct themselves, establishing standards for
investigation of law and facts.
- Embodies a procedural standard
- Central purpose is to deter baseless filings in district court and thus, streamline the administration
and procedure of the federal courts.

Representations to Court – What Conduct is covered: 11(b)

1. It is not being presented for any improper use (harassing, unnecessary delay, increase in cost of
litigation.)
2. The claims, defenses, contention are warranted by existing law, or a nonfrivolous argument for
reversal of law, or establishment of new law (law)
3. Factual contentions have evidentiary support or likely to after further investigation or discovery
(facts)
4. Denials are warranted on evidence or are reasonably based on a lack of information or belief
As to whether Rule 11 has been violated, the courts apply an objective standard of reasonableness.

Sanctions: 11(c)
Sanctions may be imposed upon lawyers and parties who violate the rule or who are responsible for the
violation of Rule 11(c).
- Monetary sanctions for violation of Rule 11(b)(2) mat not be awarded against a represented party.
- Even if monetary sanctions are awarded, they are presumptively to be paid to the court like a
criminal fine – rather than to the adversary - like a civil damage award.
- If based on a issue of law, can’t sanction party

11(c)(1)
- A motion for sanctions must be made separate from other motions and shall describe the specific
conduct alleged to violate 11(b)(2)
- If warranted, the court may award the prevailing party on the motion reasonable expenses and
attorney’s fees incurred in presenting or opposing the motion: 11(b)(2)

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 - A law firm shall be held jointly responsible for violations committed by employees

Safe Harbor
After getting complaint and you notice problems, let the other party know and they get a 21 day “safe
harbor” period to amend or withdraw the complaint. If the other party does not change anything about the
original complaint, the party may file a Rule 11 motion.

11(c) (1)(B) : On court’s initiative, it may enter an order for sanctions and the attorney, firm, or party must
show why it has not violated 11(b).

11(d)
No Rule 11 sanctions for discovery requests

Problems on p. 355
A. Party calls Opponent on the phone, threatening her with a lawsuit that Party knows to be
groundless. May Party be sanctioned by Rule 11? Is there a different result if Lawyer rather
than Party makes the call?
No, Rule 11 covers written documents, not phone calls. Also, Party wouldn’t be sanctioned because the
conduct was in violation of Rule 11(b)(2) and sanctions may not be awarded against party’s, only lawyers
when it regards 11(b)(2). ??????????
B. Party files a groundless interrogatory. May party be sanctioned under Rule 11. (see Rule
11(d) and 26(g).
No, interrogatories or any other discovery request is not covered by Rule 11

C. Client rushes into Lawyers office and tells him a story. Lawyer drafts a complaint.
Defendant moves for summary judgment, attaching documents, photographs, and affidavits
indicating Client’s story was entirely false. Who violates Rule 11?
Client, in violation of 11(b)(3). ????????????

How much do you test you Client’s story ??????????

- Investigate before filing the motion, make an inquiry of reasonableness
- If only 8 hours before statute of limitation runs, its reasonable to file without an investigation.

Walker v. Norwest: Not warranted by existing law

Massey appeals the courts award of sanction against Massey for filing a diversity case in which he
failed to plead complete diversity of citizenship and pleaded facts which showed there was not
complete diversity.
- Court did not abuse its discretion in determining that Rule 11 sanctions were appropriate because
Massey violate Rule 11(b)(2) or 11b(3) ???????????

Bad Faith Statute 1927

Difference between 12(b)(6) and Summary Judgment

12(b)(6): everything is true, but law affords no relief
SJ: granted where there is no genuine issue of material fact

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Christian v. Mattel
Christian filed a frivolous action against Mattel regarding Barbie and Christians Claudene doll.
π had insufficient evidentiary support, but because the court included in its reasoning conduct during
depositions, no sanctions.
Should the Rule 11 motion stand when it includes things other than pleading violations?
- Rule 11 does not authorize sanctions for discovery abuses or misstatements to the court during
oral presentation. It permits conduct regarding pleading, written motions, and other paper that
have been signed and filed.
- Rule 11 should not stand when it includes conduct in depositions because they do not fall within
the ambit of Rule 11 pursuant to 11(d)

Questions: 10/3/05

1. P’s lawyer meets P one day before statute of limitation runs and accepts P’s version facts without
further investigation. Layer files complaint that corresponds to facts P communicated. It turns out
later that facts are inaccurate and “P or D” brings Rule 11 motion seeking sanctions against party
and lawyer. What result?
The court will not impose sanctions because if the statute of limitations is about to run, it is reasonable for a
lawyer to file without an investigation

2. D files a motion for summary judgment after discovery, based on D’s contention that P does not
have sufficient evidence on a key element for which P has the burden of proof. The motion is granted
arguing that P lacked factual support for his claim, D files a motion for rule 11 sanctions. What
result?
No automatic go for sanctions because the claim may have been reasonable at the time it was filed

3. In the foregoing, D brings msj and requests rule 11 sanctions in that motion. What result?
Pursuant to rule 11(c)(1), a motion for sanctions must be made separate from other motions.

4. P brings a lawsuit not warranted by existing law. D brings a rule 11 motion seeking sanctions for
other members of P’s lawyer’s firm. What result?
Pursuant to 11(c)(1) , a law firm may be held jointly responsible for violations committed by employees,
and thus would be allowed to be brought into the sanction, but I’m not sure about other employees. ???????

5. (Based on # 4) D brings a rule 11 motion and seeks to sanction P by the assessment of attorney’s
fees. What result?
The court may award the prevailing party on the motion reasonable expenses and attorney’s fees incurred
in presenting or opposing the motion when its regarding an 11(b)(2) violation???????????????

6. Rule 12 affords D’s twenty days to answer a complaint. D wants to bring a rule 11 motion before D
files an answer based on D’s contention that P’s complaint is not grounded in fact or law. What
should D do?
Call P and ask for an additional 10 days to answer complaint then file the Rule 11 motion so as not to
answer both at the same time (what is the extra days going to do)

7. On its own initiative, the court determines that a complaint is frivolous. What must the court do
before it assesses sanctions?
Pursuant to 11(c)(1)(B), the court may, on its own initiative, enter an order for sanctions. The court must
hear from the attorney, firm, or party why it has not violated 11(b).

8. Courts must impose the least sever sanctions that will deter undesirable conduct.
The courts may impose any sanctions they feel will deter conduct, whether they are desirable or not??????

9. Courts should sanction P pursuant to rule 11 if P’s interrogatories all concerned matters which are
not relevant to a claim or defense in the lawsuit.

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F – interrogatories and any other discovery are barred from sanctions pursuant to rule 11(d)

10. Rule 11 inhibits bringing important groundbreaking cases such as Brown v. Board of Education?
F – pursuant to 11(b)(2) cases aren’t inhibited if it’s a nonfrivolous argument for reversal of law or seeks
establishment of new law??????????

11. P’s lacking sufficient evidentiary support should preface their factual allegations with “on
information and belief” ??????????????

12. Stamped signatures may satisfy the requirements of Rule 11 certifications in high volume courts.
F – under rule 11(a), all pleadings, motions, and other papers shall be signed. Thus stamped signature are
inappropriate.

13. An attorney hoping to extend existing law has satisfied the rule 11 requirements is she finds one
law review article supporting her position.
T – According to 11(b)(3) allegations and other factual contention must have evidentiary support. Her law
review was evidentiary support, but may not be enough and it may not be of the proper authority

14. Pro se plaintiffs are less likely than represented clients to be subject to sever sanctions.
T – Pro Se litigants know less about the law, thus the courts will cut them so slack. But, they are still liable
under Rule 11.

Pleading Fraud

Rule 9(b): Fraud and Mistake

The purpose of the rule is to afford a litigant accused of fraud “fair notice” of the claim and the factual
ground upon which it is based.

Particularity
- The time, place, and nature of the alleged misrepresentation must be disclosed to the party
accused of fraud.
- 9(b) is an exception to the short and plain statement of Rule 8
- Pleading fraud can be disadvantageous. Fraud by basic notion is concealment and being required
to plead with particularity when you don’t know all the facts. One may ask for immediate
discovery to find out the truth.

The Aversion to Awarding Punitive Damages in Contract Cases

Fraud cases threaten to turn contract cases into punitive damage actions.

Federal Securities Act

A complaint shall specify each statement alleged to have been misleading, the reasons why the statements
are misleading, and, if an allegation regarding the statement or omission is made on information and
belief, the complaint shall state with particularity all facts on which that belief is formed.

Downside of Pleading Too Much

If a party pleads generally (broad) – better because you cover your basis
If a party pleads specifically (narrow) – probably have to go back to amend

Pleading Civil Rights Cases (short and plain statements, no need for particularity)

Leatherman v. Tarrant County

Section 1983 actions alleging municipality liability only need to be plead with a short and plain statement
that will give the defendant fair notice of the claim. The court can not apply a heightened pleading
requirement like in fraud claims.

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Gomez v. Toledo
A police officer who was summarily fired after testifying against fellow officers was subsequently
reinstated and sued for a violation of his due process rights, but he did not allege that the police
superintendent acted in bad faith.

Section 1983
Public officers are entitled to qualified immunity from damages liability if they acted in good faith.
Requires Two Allegations:
1. Deprivation of some federal right
2. The person doing the depriving acted under state or territorial law

Good Faith/Bad Faith

- Qualified immunity based on good faith is an affirmative defense and thus the defendant has the
burden of pleading it – the plaintiff is not required to plead bad faith.
- ∆ has most knowledge about the incident. π can’t reasonably be expected to know a ∆’s state of
mind at the pleading stage.
- Good faith rests upon the subjective belief of the ∆.
- If π plead it, he would have burden of proof, production, and persuasion
The Role of Linguistic Clues
The statute will suggest who has burden by using words such as “provided that” or “unless” which
indicates ∆ has to prove.

Questions: 10/11/05
True or False

1. The federal rules require “heightened” pleading in fraud and civil rights cases.
F – The rules only require fraud to be heightened pleading under Rule 9(b), not under civil rights case.

2. The following claim is sufficient: “D defrauded P on 10/1/2004 by representing that the

condominium which D sold to P did not have any structural problems whatsoever.”
F – Missing too many elements. Must put something about knowledge and reliance: 9(b)

3. In a 1983 action, if an official believes that her acts are legal, then she will have qualified
immunity.
T – Reasonably acting in good faith will give an official qualified immunity.

4. Fraud are allegations in counterclaims need not be plead with same particularity as claims.
F – Fraud claims always need to be plead with particularity???????????

5. It would be an abuse of discretion for court to refuse to let a party amend a complaint in order to
plead fraud with more particularity.
F - Parties are allowed to amend under 15(a) when it doesn’t prejudice otherside.

6. The particularity requirement should be relaxed where P needs some discovery to obtain access to
all the facts to particularize her claim.
T –Because fraud is based on concealment, P would need some time to get the appropriate info. The motion
is usually granted.

7. Given the intricacies of the federal rules, pleading is a game of skill in which one misstep by
counsel may be decisive to the outcome.
F – Not really a game of skill because one step will usually not decide an outcome.

8. If P “styles” his claim fraud, but lists allegations which will only prove breach of contract then the
entire claim can be “twelve-b-sixed.”

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F – The entire claim will not be 12(b)(6), it would be re-titled to a breach of contract claim.

Who has burden of pleading?

1. A tenant is not responsible for back rent if T’s rental unit contains unsafe conditions, about which
the LL knew, unless the T caused the unsafe condition.
Tenant, unless T caused the unsafe conditions, then LL would have the burden

2. A person who is not himself negligent, but who is injured by the negligence of another has a cause
of action against the injurer.
The injured person has the burden of proving that the other person was negligent unless the other person
has an affirmative defense, which he would be admitting allegations, but must prove why he was not
negligent.

3. Persons shall be liable to injuries to others caused by failure to take reasonable care; provided that
no person shall be liable if the plaintiff’s own negligence was the primary cause of the injury.
∆ would have the burden because the words “provided for” were used as linguistic clues

4. If a dog does damage to the body of a person, the owner shall be liable…unless such damage shall
have been occasioned to a person who was committing trespass or tormenting such dog.
∆ would have the burden because of the word “unless”

Rule 12: Defendants Responses When Sued:

Two Ways to Respond

1. Pre-Answer Motion
- Permits ∆ to raise certain types of objections to the action at a very early stage of the
litigation.
- If ∆ makes no motion or it’s denied, ∆ must file an answer
- Besides time, money makes the pre-answer motion attractive to ∆’s
- Factual investigation and gathering evidence usually takes more time, and thus costs
more in fees, than does preparation based solely on law.
- 12(b) motions requires no factual allegation at all. Others like subject matter jurisdiction
require very limited factual background.

Note
- A party may bring a pre-answer motion or an answer, if no pre-answer then a party can bring the
motions in the answer and are not confined to the rules of 12(g) and 12(h).

2. Answer
- Responds to the allegations of the complaint and asserts any additional info or
affirmative claims that ∆ may have against π.
- If ∆ can’t make a 12(b) motion, she must respond to the factual allegations
- All those in the pre-answer may be in answer except 12(e), unless they are waived
- Affirmative defenses must be in the answer 8(c)

Timing: 12(a)
Both the pre-answer motion and the answer serve as key strategic early moments of the lawsuit.
- ∆ shall serve an answer within 20 days after being served with the summons and
complaint
- If service of the summons has been timely waived on request under Rule 4(d), within
60 days

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 - If the court denies the motion or postpones its disposition until the trial on the merits,
the responsive pleading shall be served within 10days after notice of the court’s action.
- Must have address, time sent, with a certificate of service. Give to party before you
file it. Every party must have a copy of the complaint.

Rule 12(b): Defenses

1) lack of jurisdiction over subject matter
2) lack of jurisdiction over the person (personal jurisdiction)
3) improper venue
4) insufficiency of process
5) insufficiency of service of process
6) failure to state a claim upon which relief can be granted
7) failure to join a party under Rule 19

12(e): Motion for More Definite Statement

Not popular, virtually obsolete. Make a 12(b)(6) motion or wait for discovery

12(f): Motion to Strike

- Strikes a claim directed to a single allegation
- Used to strike any redundant, immaterial, impertinent, and scandalous matter.
Examples
- Slum lord, racketeer
- When allegations to the complaint have no relation to the cause or are
unnecessarily confusing
- If a complaint is overly long and detailed
- If allegations are unnecessarily derogatory
Waiver of Defenses
A party waives their right to defenses by not asserting them in the pre-answer motions or the answer.

12(g): Consolidation of Defenses in a Motion

A party who makes a motion under this rule may join with it any other motions provided for and then
available to the party.
• If a party omits and defense or objection then available to the party, the party shall not thereafter
make a motion based on the defense or objection so omitted, except for those provided in 12(h)(2)

12(h): Waiver or Preservation of Certain Defenses

1. Waived if omitted from the pre-answer motion, 12(b)
(2) – lack of jurisdiction over the person
(3) – improper venue
(4) – insufficiency of process
(5) – insufficiency of service of process is waived if:

2. May be made in any pleading under 7(a), motion, or during trial, as an exception to 12(g) (Preserved)
12(b)(6) – Failure to state a claim upon which relief can be granted
12(b)(7) – Failure to join a party under Rule 19

3. Unwaivable
12(b)(1) – Lack of jurisdiction over the subject matter

Rule 7: Pleadings Allowed; Form of Motions

A motion is a request to the court for an order. (all motion to amend are decided under a abuse of
discretion)
Components:
1. The motion itself (a request for the specific relief sought)
2. The notice of the motion (tells opposing party when motion will be heard)

25
 3. Any affidavits/Certificates of Service (sworn statements by someone competent to testify that she
observed certain facts)
4. A memorandum explaining the basis for the motion
5. “Proposed Order” – a document that the judge can sign on the spot if he grants the motion

Reply: 7(a)
• Pleadings usually stop with the answer
• The answer requires a reply only if it contains a counterclaim, labeled as a counterclaim
• If answer contains an ostensible (apparent) counterclaim that is not actually a counter
claim but a defense, then a reply is not required. (Although a cautious lawyer will reply)
• If the answer contains allegations labeled affirmative defenses, then no reply is required
even though they should have been labeled counterclaims
• Permits the court to order a reply on its own motion

p. 380 # 1-3???????????
a. What kind of motion does a ∆ seek in a pre-answer motion?
Motions to dismiss or motions that require very little factual investigation that don’t grapple with

b. How long does a ∆ have to make a pre-answer motion?

20 days after being served with the complaint
2. What happens if the 12(b)(6) motion is denied?
The case keeps going
3. What happened if it is granted?
The case is over

381 # 6
a. Arthur sues Betty. Before answering, Betty moves to dismiss for failure to state a claim upon
which relief can be granted. The motion is denied.

1. Can Betty now move to dismiss for improper venue?

No – Betty should have consolidated the motions under 12(g) and she waived her right to bring the motion
under Rule 12(h)(1).

2. Can Betty now move to dismiss for failure to join an indispensable party?
Yes –This motion is warranted as an exception to 12(g) and is also allowed under Rule 12(h)(2).

3. Can Betty now move, under 12(e), for a more definite statement?
Yes – 12(g) and 12(h) are broad enough to cover 12(e). may be more theoretical than practical.

4. Can Betty include the defense of insufficiency of service of process in her answer?
No – She should have brought it together with the 12(b)(6) motion pursuant to 12(g), now its too late under
12(h)(1).

5. Can Betty include the defense of failure to join an indispensable party in her answer?
Yes – This defense can be brought up at any time according to 12(h)(2).

6. Can Betty now move to dismiss for lack of subject matter jurisdiction?
Yes – This motion is unwaivable and can be brought at anytime under 12(h)(3)

b. Charles sues Dan. Without making a pre-answer motion, Dan answers. The answer consists solely
of denials of the material elements of the complaint.

1. Can Dan move to dismiss for improper service?

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Yes – This motion is not waived because Dan never brought a pre-answer motion

2. Dan wants to have the complaint dismissed for failure to state a claim upon which relief can be
granted. Rule 12(h)(2) preserves this defense, but it is too late for a pre-answer motion. How does
Dan achieve the desired result?
Dan can move for a motion for judgment on the pleadings pursuant to 12(h)(2) and 12(c).

3. Can Dan move three months later to amend his answer to include the defense of improper service
of process?
No – ∆ can amend as a matter of course , once within 20 days of filing of complaint.

General v. Limited Denials

Traverse lives on in the form of the general or specific denial.

General: referring to every claim in the complaint

Specific: referring to particular claims has admitted and others as denied

Zielinski v. P.P.I.
A general denial will not be valid if any of the allegations being denied have been admitted by both parties
as true.

387 #5
Suppose A, a jogger, is injured when B’s car swerves off the road and hits A. A sues B. After
reviewing the text of Rule 11(b), decide how B should respond to the following allegations:

a. The complaint alleges that B has not had his car serviced for the past two years. Although this
allegation is true, B knows that it will be impossible for A to prove it.
B should admit under 8(b) but deny under 8(d) if A claims B was negligent for 2 years because A would
have the burden of proving it.

b. The complaint alleges that A was running north (the same direction B was driving). B does not
doubt that this is true but did not actually see A running.
B should deny under 8(b) any allegations he honestly can’t admit or deny.

c. Same as in (b), except that X, a friend of A, has told B that he was standing 20 feet away and saw A
running north.
B should still deny under 8(b) if he’s unsure and because B is not obligated to admit from non-personal
knowledge.

The following case asks where the borderline lies between a denial and an affirmative defense.

Layman v. Southwestern Bell

A property owner sued the phone company for trespass after it buried some phone wires under her
property.
- ∆ answered the complaint with a general denial
- At trial, ∆ claimed it had a right to enter by easement (an affirmative defense)
- π objected to the easement because it was a defense which should have been brought in the
answer, not during trial.
Rule:

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An easement is a affirmative defense and need to be plead in the answer because π needs notice that the
defense exists

Harris
π filed her complaint after the statute of limitation had run. Defendant failed to assert the statute of
limitations as an affirmative defense, as required in Rule 8(c), but after discovery did so in a motion for
summary judgment.
- The court insisted that ∆ had erred by not pleading the statute; unlike Layman, the Harris court
gave a reason for this rule and suggested the flexibility might be in order on remand

Cuddleback v. Denham
The court held that ∆’s who had denied the allegations in a trespass action would be permitted to prove title
by adverse possession.
- Doesn’t make Layman wrongly decided
- Depends on whether the π was unfairly “surprised” by the introduction of the easement.

Is 8(c) really a list of “unexpected” defenses?

3018(b) of NY which requires a pleading of “all matters which if not pleaded would be likely to take the
adverse party by surprise or would raise issues of facts not appearing on the face of a prior pleading ,”
makes such a principle explicit.

391 # 4
4. If the “surprise” principle were in effect, which of the following would have to be pleaded as an
affirmative defense?
- Plead surprise as an affirmative defense

a. Plaintiff sues for damages caused by water that overflowed from a dam on ∆’s land. ∆ claims
that the overflow was caused by an “act of God” and that an even higher dam would have
been inadequate.
Even if it is a surprise, plead it as an affirmative defense.

b. Plaintiff sues for damages caused when ∆’s car suddenly swerved into π’s lane. ∆ claims he
swerved to avoid hitting a child.
Not necessary to plead this???????????????

c. Plaintiff sues for medical malpractice resulting from an operation. ∆ claims that π planned
the lawsuit before the surgery and that she faked the injury.
Pleading “surprise” not necessary. Can be found in discovery – denials should leave one to cover the
basis of the denial

393 # 4
What pleading should π file to assert that the affirmative defense is without merit? (such as the
statute of limitations defense)
Bring a 12(f) motion to strike

Questions: 10/12/05

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1. If D (in D.C.) reveals in timely discovery that he has an affirmative defense based on the SOL, then
he is not barred from raising it at trial, even though he did not plead it in his answer.
F – Pursuant to Rule 8(c), all affirmative defenses must be raised in the answer, or are otherwise waived.

2. If D raises a prior settlement agreement as an affirmative defense to P’s claim, then P should
“reply” to the defense if P believes that the settlement agreement was induced by fraud and thus,
illegal.
F – P should only reply if the answer contained a counterclaim

3. What, if anything, ails (affects) the following paragraph in a complaint? “D, Norton, owned and
operated a sit down mower, which D’s agent negligently drove into P on Oct. 1, 2004, at UDC.
Should be in separate paragraphs – ownership and negligence should be separate.

4. If P sues D for trespass in D.C., then D can raise the defense of D’s easement in a motion for
summary judgment, even if D did not “flag it” in D’s answer.
F – An easement is an affirmative defense and should have been brought in the answer, not in a motion.

5. After Layman, the law is well-settled that if P brings an action for trespass, then D must plead an
affirmative defense if D contends that D has an easement on P’s land.
F – The law is not well-settled. Cuddleback suggested some flexibility should be in order, but ts not the
majority rule.

6. After Zielinski, the law is well settled that if D generally denies and does not reveal that there is no
agency relationship between that actual tortfeasor and D, until after the SOL runs, then D is
equitably estopped from denying the agency relationship.
F – Zielinski came out the way it did because the parties had the same insurance company. There was no
15(c)(3) at the time.

7. If D neither admits nor denies, but demands strict proof of P’s allegations, then D’s response is
acceptable under the rules.
F – D can’t demand proof. If he doesn’t admit or deny it is understood as an admittance under 8(d).

8. If D knows that his brakes have not been maintained for three years, but knows that P cannot
prove the allegations in his complaint, that “D negligently maintained his brakes,” then D is free to
deny the allegations.
T – D should deny under 8(b) – the assertion is a legal conclusion, not a factual statement

9. If P sues D for negligence alleging that D ran a red light and collided with P, then D must admit
that he ran the light, even if he was distracted at the time, but his wife is “90% sure that he ran the
light.”
F – If D is unsure that he ran the light he should deny it under 8(b). The wife’s assurance is outside
personal knowledge and therefore not obligated to go by it.

Former Quizzes on Waiver:

1. Assume P sues D for negligence and D immediately files an answer which simply denies all of P’s
allegations. D may later bring a motion to dismiss based on improper service.
T – because there was no pre-answer motion, this motion is not waived

2. Assume P sues D for negligence and D files an unsuccessful pre-answer motion to dismiss for
failure to state a claim. F may raise the issue of failure to join an indispensable party in an
appropriate motion immediately following a jury verdict.
F – 12(b)(7) motions may not be brought after the verdict. Only before and during trial under to 12(h)(2).

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3. Assume P sues D for negligence and D immediately files an unsuccessful motion to dismiss for
failure to state a claim. After D answers, D may immediately raise the issue of lack of smj.
T – 12(b)(1) is inwaivable and may be raised at anytime during the proceedings pursuant to 12(h)(3).

4. After D loses his case on the merits and appeals, D may raise smj for the first time.
T – SMJ is unwaivable under 12(h)(3)

5. Assume a case has been in litigation for five years and is now in the S. Ct. on a substantive matter.
The justices’ sua sponte (court takes action on its own initiative) may raise smj and dismiss the claim
on that basis even if no party or no judge has ever raised smj.
T – smj can always be raised under 12(h)(3), even by the court.

Rule 15: Amended and Supplemented Pleadings

15(a)
“as a matter of course”
- A party may amend a pleading once automatically if done within 20 days after it was served
- Can amend as a matter of course until there is a responsive pleading
- No judge involvement
- π is master of claim and can add a party (Rule 20) or a claim
- If a party wants to amend 20 days after service they must;
Write a motion
Attach amended complaint/answer to the motion
Only if action has not been placed on trial calendar can party amend after 20 days

Otherwise, a party may amend pleading only be leave of court or by written consent of the adverse party
and;
If obligated to respond, time to amend expires when you answer
Leave to amend shall be freely given when justice so requires
2 Requirements:
- The would be amender should have a good reason for not getting the pleading right the first time.
- Allowing the change now shouldn’t hurt the other side too much (Foman factors)

A party shall respond to an amended pleading within the time remaining for response to the original
pleading or within 10 days after service of the amended pleading, which ever period may be longer.

15(b): Amendments to Conform to the Evidence

30
In trial motion where the other side impliedly or expressly consented to here the evidence
- Adding a claim during trial
- Exception for surprise and lack of notice
15(c): Relation Back of Amendments
An amendment of a pleading relates back to the date of original pleading when;
(1) Relations back is permitted by the law that provides the statute of limitations applicable to the
action, or
- Can be raised after statute of limitations when it relates back to the same CTO
- Allows time-barred claims to be brought.

(2) The claim or defense asserted in the amended pleading arose out of the same conduct, transaction,
or occurrence set forth in the original pleading, or
- Could be when a ∆ wants to amend its motion because ∆ has a major defense regarding same CTO

(3) The amendment changes the party or the naming of the party against whom a claim is asserted if
(2) is satisfied and,
1. Receive notice within 120 days of the filing of the complaint 4(m)
2. But for a mistake concerning the identity concerning the identity of the proper party, the action
would have been brought against the proper party/Knew or should have known
- Ignorance does not mean mistake
- Can be raised after the statute of limitation runs when amended complaint relates back to the CTO
- If the statute of limitation has not run, refer to 15(a)

15(d): Supplemental Pleadings

Pleading events that happened since the date of the pleading
- Permission may be granted even though the original pleading is defective in its statement of a
claim for relief or defense. The party to be brought in by amendment must;
- Courts must approve

p. 394 # 1-2

1. π files a complaint against ∆1 for breach of contract. Before ∆’s time to answer, π’s attorney realizes
that, in addition to being able to claim breach of contract, π also has a claim for negligence against both ∆1
and ∆2.

a. What should plaintiff do?

File a 15(a) amendment to add a party – are there any time stipulations???????
b. Alternatively, suppose ∆1 answers before π’s lawyer realizes he has a claim for negligence against
the 2 defendants. How does this affect π’s course of action and the arguments he will use to support
them?
π would still file a 15(a) motion and the amender should have a good reason for not getting it right the first
time and leave shall be given when justice so requires (time is up for as a matter of course)

2. π files a complaint. ∆ answers denying liability. Ten days after filing answer, ∆’s lawyer realizes that she
negligently failed to include the affirmative defense of statute of limitation in the answer. What should ∆
lawyer do?
∆ can amend under 15(a) as a freebie because it was before the 20 day cut-off period?????

Beeck v. Aquaslide
∆ admits manufacturing the defective water slide at issue in the case but a year later moves the court to
amend the answer to deny manufacture.

Rule:

31
A court does not abuse its discretion by allowing an amended pleading to the answer from an admission to
a denial.
Rule 15(a) declares that leave to amend should be “freely given when justice so requires.”

Foman v. Davis factors

In the absence of some declared reason, such as _______, the leave sought should be freely given.
- undue delay
- bad faith
- dilatory motive
- repeated failure to cure deficiencies
- passage of time
- meritless
- futility

Prejudice Analysis
Amending a complaint to include a new party could prejudice the other side because
- money has already been spent
- time has gone by
- witnesses are lost
- people forget things

What if 15(c)(3) had been in effect?

The party may amend the complaint after the statute of limitation had run if the proposed amendment
relates back to the facts of the original complaint.

Standard of Review on Appeal of Amended Pleadings

- Abuse of discretion

Relation Back
Moore v. Baker
A plaintiff who was disabled after an operation sued the doctor for violation of the informed consent law,
and later tried to amend the complaint to include allegations of negligence.
- The amended complaint focused on conduct during the surgery, whereas the original complaint
focused on conduct before surgery.
- No relation back because its not based on same facts in the original complaint

Rule:
- To relate back to the time of the original complaint, a proposed amendment must have its basis in
the same facts that are in the original complaint.
- Rule 15(c)(3) permits an amended pleading to relate back to the date of the original pleading
whenever the claim or defense asserted in the amended pleading arose out of the same conduct,
transaction, or occurrence set forth in the original pleading.

Bonerb v. Richard Caron Foundation

π was injured when he slipped and fell while playing basketball as part of ∆’s drug and alcohol
rehabilitation facility’s mandatory exercise program. A year after complaint was filed and after statute of
limitations had run, π filed a motion to amend his complaint to include counseling malpractice.

Broad to Narrow (negligence to informed consent)

Narrow to Broad (informed consent to negligence)

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Questions: 10-17-05

1. Johnson sues Kanupp for damages resulting from a fender bender. Johnson later finds out that
Karr ran into Kanupp, who, as a result of that first collision, then ran into Johnson. Johnson can
amend his complaint to add Karr.
T – Under 15(a) , π , being the master of his complaint thus able to add a party freely, can amend a
pleading once within 20 days after it was served “as a matter of course.”

2. What result if Kanupp wants to add Karr after the statute of limitations passed?
Because the claim arises out of the same CTO, Kanupp can add Karr pursuant to 15(c)(3) if Karr receives
notice within 120 days of the complaint and if it was a mistake that Kanupp didn’t sue her originally

3. Jeane sues Keefer for injuries caused by her manufacturing a defective lawnmower. Because this is
his first big case, Jeane amends his complaint – with leave of the court –three times early in the
proceedings. After discovery, he moves to amend once again based on an additional theory revealed
by discovery. Judge Kemp says “no way.” What result if Jeane appeals Judge Kemp’s ruling?
Judge Kemp’s ruling will probably be affirmed. Because Jeane already amended three times, a fourth time
might unjustly prejudice the other side, especially since they’ve already gone through discovery pursuant to
15(a). But the other side might agree to the amendment if Jeane paid their discovery costs.???????

4. M raises warranty issues in trial for the first time although they are not part of her complaint. ∆
Pierre does not object. M moves at end of evidence to add a warranty theory. What result?
The warranty theory should be granted under 15(b) as an in-trial motion because ∆ impliedly consented to
hear the evidence by not objecting it.
5. Mathu brings a “rent control” action to contest an illegal rent increase. P, her landlord, increases
her rent once again after she filed the complaint. Can Mathu add that newly arisen claim to her
complaint?
Yes – 15(d) allows for an amended pleading for events that happened since the date of the original pleading
being supplemented.

6. Mier sues Potter based on injuries she just incurred in an accident with Potter. Before receiving
Potter’s answer, she can amend to add a prior debt that Potter owes her. What result if she moved to
amend three months later?
Before receiving Potter’s answer, Mier can amend “as a matter of course” automatically within 20 days. 3
months later, Mier would have to ask permission from the court by; writing a motion, attaching the
amended complaint, and hope its not already on the trial calendar (Denied under 15(c)(2))

7. Assume Haddle sues Garrison for breach of contract only. Based on the fact of the case, he amends
after the SOL passes to add the civil rights claim under section 1985. What result?
Haddle can amend after SOL only if the amended pleading relates back to the same CTO pursuant to rule
15(c)(2).?????????????

8. Zielinski sues PPI and finds out after SOL runs that CCI is the real party in interest. Z moves to
amend to add CCI as a ∆. What result?
Z can add CCI under rule 15(c)(3) because, but for the mistake concerning the identity of the proper party,
the action would have been brought against the CCI.????????

9. Assume Beeck moves to add Copycat Slides, the real manufacture of the offending slide after the
SOL runs. Copycat found out about the lawsuit six and a half months after the SOL had run, one
year into the litigation. What result?
Pursuant to 15(c)(3) and 4(m), Beeck will not be able to add Copycat because Copycat did not receive
notice of the allegation within 120 days of the filing of the complaint.

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p. 412 # 1-4

1(c). Explain why the info sought in Davis was relevant and that in Steffan not?
The information sought in Davis is relevant because it was related to a matter pertinent to the decision in
the case. Steffan attempted to bring in info that was not related to the pertinent matter of the case. Steffan
was discharged for admitting he was a homosexual, not for homosexual conduct.

2(b). Suppose the ∆ in Davis wanted to challenge the district court ruling. Could it have sought
review in the court of appeals?
No – generally trial judge as last word regarding discovery issues. Unless, motion to recondier, writ,
contempt)??????????

3(c). How did Steffan reach an appellate court?

The district court dismissed Steffan’s action for failure to comply under 37(b)(2). Judge’s orders regarding
discovery are the last words. Once the action was dismissed, which renedered a final judgment, Steffan was
free to appeal.
- Cases are rarely dismissed during discovery
4(a). Albert and Barbara are involved in an automobile accident. Albert sues Barbara, alleging
negligence. Barbara denies liability. Albert seeks to discover the size of Barbara’s bank account (he
wants to know whether she will be capable of satisfying a damage judgment.) is this info “relevant to
a claim or defense” and thus discoverable.
No, nothing to do with the basis of the claim

Discovery
Rules which compel the parties and others involved in a lawsuit to cooperate in the unearthing of factual
background information.
5 Primary Means of Discovery:
1. Disclosures: Rule 26(a)(1)
2. Production of Documents: Rules 34, 45 (Subpoena)
3. Oral Depositions: Rule 30, 34
4. Written Interrogatories: Rule 33 (not for non parties)
5. Physical and Mental Examinations: Rule 35
- a motion must first be made to obtain the desired exam
- party seeking it must show good cause
- once health or mental distress is brought into case, opposing party has the right to privileged
information sought through examinations

Most lawsuits end at this stage for two reasons.

1. Discovery produces info about the merits of the lawsuit and permits parties to make informed
judgments about the strength of their opponent’s position.
2. Discovery takes time and costs money thus enables one of the parties to simply wear the other
down.

Rule 26:

26(a)(1): Disclosures

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A party, without awaiting a discovery request, must provide to other parties; - within 10 days of 26(f) mtg.
A. Name, and in known, address and phone number of each person likely to have discoverable
information that the opposing party may use to support its claim or defenses.
B. Description of documents, unless solely for impeachment – 37(c)
C. Calculation of damages
D. Copies of insurance agreements

Once these initial disclosures have occurred, the parties may then use other discovery mechanisms

Rule 26(b)(1): Limits of Discovery

- Allows the parties, without court approval, to seek discovery regarding any matter not privileged,
that is relevant to the claim or defense of any party.
- If the party shows “good cause” the court may grant even broader discovery “of any matter
relevant to the subject matter involved in the action.
- Relevant info is not limited to that which would be admissible at trial
- Info is relevant if it appears reasonably calculated to lead to the discovery of admissible evidence
- Relevance both grants power and limits it; privilege operates solely as a limitation.

Privilege
Protects information from certain sources; getting the same info from unprivileged sources is fine
Waiver of Privilege: 2 ways
1. Explicitly, by the party entitled to use it, or
2. Implicitly, by an action inconsistent with the privilege.
Example:
A party invoking the 5th amendment privilege may waive it by taking the stand and denying the crime.
Having started to testify about the crime, he can’t invoke the privilege when the other side seeks to cross-
examine.

Davis v. Precoat
π’s alleged they were being exposed to hostile working conditions, including being subjected to racial
insults and derogatory comments.
- π motion sought past discrimination complaints against ∆ at the same plant as π’s. Court
granted the motion.
Rule 26(b)(1)
- Permits discovery of any matter relevant and not privileged

26(b)(2)
The court can limit discovery request when;
1. The discovery sought is unreasonably cumulative, duplicative, or is obtainable from some other
source that is more convenient, less burdensome, and less expensive.
2. The party seeking the discovery has had ample opportunity to obtain the information sought
3. The burden or expense of the proposed discovery outweighs its likely benefit
Steffan v. Cheney
A naval officer refused to answer deposition questions about his sexual conduct in his suit challenging an
administrative board’s recommendation that he be discharged based on his admission that he was a
homosexual.
- π need not answer questions because there were not relevant to a pertinent matter of the case.
the issue was not whether he had sexual relations, the issue was he admitted homosexuality.

Upjohn
The court held that the corporation’s attorney-client privilege extended beyond the “control group” (top
management)

35
 - The attorney-client privilege protects communication between lawyers and clients. Such a
privilege does not prevent discovery of facts, but it does prevent inquires about communication to
one’s lawyer.
26(f)
Requires the parties to meet without a judge to discuss the case as soon as practicable, at least 21 days
before a scheduling conference
- may exchange disclosure list at this meeting or within 14 days after it

26(d)
Parties may not use other forms of discovery until after the meeting required by 26(f).

26(e): Duty to Supplement

If a party submits disclosures, it is under a duty to supplement or correct the disclosures to include
information acquired thereafter.
- If a party leaves something out of a disclosure or something new comes up and the other side
already knows about it, but its harmless, then its fine
BUT
- If the other party doesn’t know about it, then it prejudices, possible sanctions

26(g)
Every disclosure shall be signed.
- The signature of the attorney or party constitutes a certification that to the best of the signer’s
knowledge, info, and belief, formed after a reasonable inquiry, the disclosure is complete and
correct.
- Signing is saying its not unreasonable or unduly burdensome, expensive, or for improper purposes
- Forbids abusive discovery

26(g)(3)
Requires a party who fails to attend his deposition to pay the expenses and attorney’s fees of any party who
did attend.

26(c)
Permits a party to seek a protective order and gives the judge broad power to prevent abusive discovery
- Protects a person or party from annoyance, embarrassment, oppression, or undue expense, or
where the inquiry reaches into areas that are clearly outside the scope of appropriate discovery.
- Judge enters order where justice requires
Rule 33: Interrogatories
A list of questions sent to an opponent to answer
- may only be sent to a party; non-party witnesses may be deposed, but need not answer written
interrogatories
- much cheaper than depositions
33(a): Limitations
- Can’t follow up evasive answers with questions
- Attorney’s usually fill them out
- May yield little valuable info
- No more than 25 questions, including sub-parts

33(b): Objections to Interrogatories

- Parties must confer
- Opponent must sign objection and state reasons why (to the extent Q isn’t objectionable)
- The party submitting the interrogatories may move for a 37(a) motion (must confer first)

What if opponent provides partial answers

- Confer, if this doesn’t work
- 37(a) motion to compel, if granted, opposing party has 10 days to cooperate

36
 - If opponent doesn’t comply with motion, sanction under 37(b)

37(a)(2): Motion to Compel

A. If a party fails to make a disclosure required by 26(a), any other party may move to compel
disclosure and for appropriate sanctions, or
B. If a party fails to answer a question, the discovering party may move for an order compelling an
answer.
- The motion must include a certificate that the movant has in good faith conferred or attempted to
confer with the other party in an effort to secure the disclosure without court action.
- A party bringing this motion seeks (1) a ct. order answered in 10 days, (2) attorney’s fees

Whenever you bring a 37(a) motion always bring a 26(g)(3) motion too, can go straight to sacntion

37(b): Sanctions
If a party fails to obey an order to provide or permit discovery, the court shall require that party to pay
reasonable expenses, including attorney’s fees.

37(c): Failure to Disclose/Motion to Exclude

- A party that fails to disclose info required by Rule 26(a) is not permitted to use that info as
evidence at trial, at a hearing, or on a motion.
- The court may, on motion, impose other appropriate sanctions (ex. Requiring payment of
reasonable expenses, including attorney fee’s)

37(d): Failure of Party to Attend Interrogatory or Deposition

- No need for a 37(a) motion to compel, a party may go directly to this motion (Sanctions)
Documents: Rule 34
- Includes any medium for recording data or information (email, pictures, Cd, video tape)
- No limitations on how many documents a party can get
- No documents from non-parties
- A party can object to a document request if it is too burdensome; 26(b)(2) and 26(g)
- Permits inspection of land and objects
- Normally party producing the documents must pay for them

Non-Parties
- Make a similar request in a subpoena under Rule 45(a)(1)(C)
- May not be made before disclosures required by Rule 26(a)
34(b)
Requires that the producing party produce the documents as they are kept in the usual course of business or
shall organize and label them to correspond with the categories in the request.

Rule 36: Admissions

A party request a written request for the admission of the truth of any matter within scope of 26(b)(1)
including the genuiness of any document described in the request.
- Functions best when used to eliminate essentially undisputed issues
- Takes certain issues out of context
- Allows changes of statements from interrogatories at trial because there weren’t binding
Rule 30: Depositions
Meeting to ask the other side’s witnesses questions
- Lawyers are present and a court reporter or recording device
- Witnesses asked questions under oath
- Non-party’s can be deposed
- Advantageous: allows for follow-up Q’s and forces witness to take a position

37
 - Disadvantage: expensive

30(d)(1): Motion to Terminate/Objections During Depositions

Only 3 valid objections in depositions:
1. Privilege
2. To enforce Protective Order (make sure its regarding the area that’s off limits)
3. To present a motion under 30(d)(4)

30(d)(2): Limits
- Total # of depositions may not exceed 10
- No more than 7 hours a day
- No person may be deposed a second time w/out the permission of the court or opposing side

What if answers are inadequate?

- confer with party
- Either bring a motion to compel under 37(a)(2)
OR
- Call judge under Rule 30(d) for expedited treatment so that judge can rule on it right then

30(d)(4): Motion to Terminate

At any time during a deposition, on a motion of showing that the examination is being conducted in bad
faith or is in such a matter as to annoy, embarrass, oppress, the court can cease the party from deposing or
limit it under 26(c).

A party can also calling a judge during the deposition when both parties are present so that the judge can
make a ruling right then and there.
- Advantage is that the party doesn’t have to come back another day and it will save money

p. 420 #1-2

1. Having sustained injuries from a household appliance, Cora sues Manufacturer. The required
discovery conference and the ensuing disclosures occur. Cora then serves 55 interrogatories on M
and 20 interrogatories on Store, which sold the product. Both Store and M refuse to answer.

a. Explain why store needn’t answer even if the questions are relevant and not privileged. By what
step might Cora induce Store to answer.
Store is not a party therefore interrogatories aren’t applicable. If Cora needed to question Store she could
bring them in to the suit or she could depose them. Non-parties are deposable.

b. Can Cora get a court to compel Manufacturer’s answers?

Yes – a 37(a)(2) motion

Agenda Questions: 10/19/05

1. Emails are subject to Rule 34 requests.

True – any medium for recording data or information

2. To circumvent the numerical limitations on interrogatories, a propounder can write questions with
sub-parts.
T – So as long as the questions, including the sub-parts do not exceed 25 under Rule 33

3. The standard of review in discovery disputes is normally de novo review.

F – The standard of review is abuse of discretion

4. Only a small minority of discovery disputes result in appellate reversal.

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T – Only those cases where the case is dismissed during discovery then a party may seek appellate review.
If the discovery order is by magistrate, the party may seek a motion to reconsider from the judge – usually
judge has last word

5. An answer to an interrogatory is treated as a judicial admission?

F – An interrogatory can be changed at trial whereas a judicial admission under rule 36 is binding. A party
can change an interrogatory answer at trial, but not an admission. If they try to change an admission they
will be impeached.

6. If P sues D for housing discrimination and states that P has suffered severe emotional distress as a
result, then D can conduct discovery re the frequency of P’s “marital relations.”
T – Once P puts her mental status at issue, it becomes relevant.

7. If D batters P, then in a subsequent civil lawsuit concerning the battery, D can refuse to answer
discovery questions as to whether he battered P.
T – D could the plead the 5th cause the answer could expose him to criminal liability.

8. If P sues D (BMW) for injuries caused by brake failure in her BMW, then P can discover other
prior BMW instances of brake failure.
T – The request is relevant and relates to the issue at hand

9. If P sues D for housing discrimination, specifically failure to rent based on race, then P can inquire
(in discovery) as to complaints that P has evicted persons for discriminatory reasons.
F – P’s inquiry doesn’t relate to the issue at hand. She should seek to find others who have been
discriminated while trying to rent, not those evicted: 26(b)(1)

10. In a breach of contract case, P asks a series of interrogatories which address D’s careless
behavior preceding the breach.
D’s conduct preceding the contract is irrelevant to the issue pursuant to 26(b)(1)
11. A sues B for a 10k contract dispute in state court with the same discovery limitations as federal
court. If A requests, then B is stuck with 25 interrogatories, unlimited document requests, and 10
depositions.
T – 26(b)(2)

12. P sues two police officers who battered him. After the SOL runs, P moves to amend to add DC as
a party ∆. What result?
D may be able to add DC under 15(c)(3) if it relates back, within 120 days, and there was a mistake as to
why DC wasn’t a party originally. The police officers may have immunity though.

13. P sues D for negligence (med. mal.). After the SOL runs and shortly before pre-trial, P moves to
amend to add a claim of failure to obtain informed consent. What result?
Pursuant to 15(c)(3), P will be able to add the claim because it does relate back to the original complaint,
broad to narrow.

Stalnaker v. Kmart Corp.

An employee, who was sued by a former co-worker for sexual harassment, sought a protective order
preventing the co-worker from deposing four non-party witnesses in order to determine whether they had
any romantic conduct or sexually related activities with the co-worker.
- Pursuant to Rule 26(c), a party seeking a protective order must establish good cause for
the order by submitting a particular and specific demonstration of fact.

Holding:
D showed good cause to limit discovery (protection order granted) because;
• witnesses had no relationship to the allegations against Kmart
• witnesses weren’t involved in creation of hostile working environment

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 • inquiry into such activities will constitute an invasion of their privacy

Magistrate: 28 U.S.C. 636,

- Judges send discovery disputes to magistrate judges
- These rulings become interlocutory rulings, thus can’t be appealed
- A party may move for a Motion to Reconsider to have the judge rule on the issue.
Rule 35: Physical and Mental Examinations

Schlagenhauf v. Holder
D, who allegedly caused a collision while driving a bus, objected to an order requiring him to submit to a
number of physical and mental examinations. The case was dismissed because of the objections. D
appealed, bringing a writ of mandamus, asserting the judge screwed up in its ruling. Appellate court
agreed.
- Writ of certiorari considering denial of writ of mandamus seeking to set aside order to
undergo and mental and physical examinations.

Rule 35(a)
A physical or mental examination may be ordered when a party’s physical or mental condition is in
controversy.
- examinations may be made on any party, π or ∆
- The party seeking the discovery must make an affirmative showing that the condition sought to
be examined is genuinely in controversy and that good cause exists for ordering each
examinations.
- Automatically made when a party places his mental or physical condition at issue, not when the
other side places it at issue – waives privilege

Writ of Mandamus
- Technically not an appeal, but an independent action against the court or judge alleging that the
order is unlawful
- The granting of such writs is in the discretion of the appellate court
- Rarely granted

Discovery Appeal Options

When a judge screws up regarding a discovery matter, it is usually last word, not appeallable.

Exception:
- Motion to Reconsider (magistrate to judge)
- Writ of Mandamus
- Contempt (jail sentence): 37(b)(2)
Quiz # 4
Resolution without Trial

Work Product/Trial Preparation Materials

Hickman v. Taylor (Absent a showing of need, an attorney’s work product is beyond the scope of disc.)
Hickman sought to obtain copies of written statements and descriptions of oral interviews acquired by
Fortenbaugh , the opposing counsel – held in contempt

Rule:
A party is not entitled, without a showing of good cause, to obtain copies of an opposing attorney’s notes
and memoranda acquired from interviews with witnesses.
- Rule 26(b) provides necessary limitations on discovery when the inquiry encroaches upon the
recognized domains of privilege.

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Reasoning:
- The memoranda , statements, and mental impressions in issue and in Fortenbaugh’s possession
fall outside the scope of the attorney-client privilege
- BUT, they are not freely discoverable because Hickman showed no compelling reason why he
should be entitled to the information in the files, nor did he indicate that the denial of such
production would unduly prejudice the preparation of his case.
- Names of witnesses aren’t work product, you can get them if you ask the right questions

26(b)(3): Work Product/Trial Preparation

A party may obtain materials prepared in anticipation of litigation only upon showing that the party
seeking discovery has;
- Substantial need of the materials in preparation of the case (where relevant and non-privileged
facts remain hidden in an attorney’s files)
AND
- Undue hardship to obtain the equivalent materials by other means

When the required showing has been made, the court shall protect against disclosure of the mental
impressions, conclusions, opinion, or legal theories of an attorney or other representative.

Another way to get work product documents is to depose the attorney under Rule 26 and attempt to force
the production of the materials by way of a subpoena in accordance with rule 45.

Statements
- A party may obtain its own statements without the required showing
- Upon request, non-party’s may obtain their statements without the required showing when the statement
is;
(A) Written and signed
(B) The document is recorded verbatim

If the statements were made in anticipation of litigation, they are considered work product, therefore non-
party’s are not able to obtain them. However, the party may request their document, if refused, the party
may move for a court order

Expert Information
- hired by parties to analyze the case and perhaps testify
- experts typically testify to the inference one can draw about causes of an event by applying there
special knowledge to the evidence available

Problems
- involves relevant, unprivileged information “produced” by the efforts of one of the adversaries
- each side should do their own prep work and neither should freeload
- both sides should have access to the info before trial
26(a)(1)(A)
- non-testifying experts (who examined party) must be disclosed as part of the initial disclosure as
they are “likely to have discoverable information that the opposing party may use”

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Rule 26(a)(2)
- testifying experts need to be disclosed under this rule
- requires as part of the initial disclosure, identity of experts who may testify must be accompanied
by,
- requires “a written report prepared and signed by the witness/expert containing a complete
statement of all opinions to be expressed and reasons thereof
- non-testifying experts need to be disclosed under 26(a)(1)

26(b)(4): Experts/Trial Preparation

(A) A party may despose any person who has been identified as an expert whose opinions may be
presented at trial, but after the report is provided if a report is required.

Non-Testifying Experts
Generally immune from discovery Except under the exceptions in this rule
- Opinions or facts held by a non-testifying expert who has been retained or employed by the
opposing party in anticipation of litigation cannot be discovered except as provided for under
35(b) (when there is an examination)
OR
- If there is showing of exceptional circumstance where it is impractical for the party seeking
discovery to obtain same facts or opinions on the same subject by other means.

(B) When the exceptions are met, a party may seek discovery through interrogatories or depositions,

(C) Unless injustice would result, the court shall require the party seeking discovery to pay the other
party a portion of the fees and expenses incurred in obtaining facts and opinions from the expert.

35(b): Report of Examiner

(1)
- upon request, the party causing the exam shall be entitled to receive a report of any examination
- if the examiner fails or refuses to make a report the court may exclude the examiners testimony if
offered at trial
(2)
- by requesting and obtaining a report of the exam, the party examined waives any privilege the
party may have

Default:
Rule 55(a)
- the clerk may enter a default against a party who has failed to plead or otherwise defend (appear)
and that fact is made to appear by affidavit or otherwise – no judgment, simply liability only

Default Judgment
(b)(1): By the Clerk (∆ failed to appear and there is a sum certain amount)
- a default judgment for a sum certain may be entered against a ∆ who “has been defaulted for
failure to appear (failed to plead or otherwise defend)”
- must have affidavit of the amount due
Sum Certain
- Concrete number or amount of losses. (Ex. List of medical expense, promissory note)

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(b)(2): By the Court
- If uncertain, the party shall apply to the court (∆ still has not appeared)
- If the party against who the default judgment is sought has appeared then the party shall be
served with written notice of the application for judgment at least 3 days prior to the hearing on
such application
- The court may conduct hearings to determine the amount owed
Uncertain
- When the amount of damages is uncertain, the π must then “prove up” the damages

55(c): Setting Aside Default/Motion to Vacate

- For good cause shown, the court may set aside an entry of default and,
- If a default judgment has been entered, may likewise set it aside in accordance with Rule 60( b)
Rule 60(b) (in accordance with default judgments)
On a motion, the court may relieve a party or a party’s lawyer from a final judgment for the following
reasons:
(1) mistake, inadvertence, surprise, or excusable neglect
(2) newly discovered evidence which could not have been discovered in time
(3) fraud, misrepresentation, or other misconduct of an adverse party
(4) the judgment is void
(5) the judgment has been satisfied, released, or discharged…
(6) any other reason justifying relief from the operation of the judgment

The motion shall be made in reasonable time, and for reasons (1)(2)(3), not more than one year after the
judgment was entered.

Peralta
The guarantor of a hospital debt sought to set aside a default judgment on the grounds that service was a
nullity under the state law due to delay; but the state court – in spite of the defective service – required the
guarantor to show he had a meritorious defense before it would set aside the judgment.
Rule:
A default judgment entered without notice or service to the ∆ violates the Due Process Clause of the 14th
Amendment.
- Courts display real discomfort at entering judgment for reasons that fall short of the merits

Void Judgment and Actual Notice

Judgment is void if notice isn’t adequate: (60)(b)(4)

Meritorious Defenses (To set aside default judgment)

- If a deprived of due process, no need for meritorious
- If not deprived of due process, must show meritorious defense or judgment is not void

Rule 41: Voluntary Dismissal

41(a)(1)(i)
- allows a π to dismiss any time before the ∆ answers or brings sj motion without order of the court
- if a voluntary dismissal will harm your case, then answer it immediately

41(a)(1)(ii)
- permits the π to dismiss a suit at anytime if ∆ consents (even after ∆ answers)
- The Two Dismissal Rule (only two dismissal are allowed, the second dismissal is dismissed
w/prejudice)

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41(a)(2): By Order of Court (if ∆ does not consent to dismissal)
1. After answering, if ∆ does not consent to dismissal, an action shall not be dismissed except upon order of
court
- gives the judge broad discretion in deciding when to grant a voluntary dismissal after the ∆ has
answered
- π should not be permitted to bail out simply to avoid a loss on the merits or after rulings on
choice of law questions that look bad for π
- many courts require π’s seeking voluntary dismissal to pay the ∆’s attorney’s fee’s as a condition
of granting the motion

Rule 41(b): Involuntary Dismissal

- For failure of π to prosecute, a ∆ may move for dismissal w/prejudice of an action against him
- The most common reasons for dismissals are persistent failure to comply with discovery orders,
failure to prosecute the case, failure to appear for calendar calls, motions, or pretrial conferences.
- Such a dismissal operates as an adjudication on the merits except for those dismissed for subject
matter or personal jurisdiction, improper venue, or for failure to join a party under Rule 19

Agenda Questions: 11-7-05

1. P sues “Eddie Bauer” Inc. for consumer discrimination after being falsely arrested. Bauer does not
answer the complaint. P requests 1 million for emotional distress and punitive damages and wants to
know from you whether P can obtain a default in that amount without a hearing.
No, pursuant to 55(b)(2) because the amount for emotional distress is uncertain, P must apply to the court
and the court will conduct hearings to determine the amount owed.

2. If EB’s lawyer enters her appearance in the case, but does not answer, can P obtain default from
clerk without contacting lawyer?
No, P should obtain default from the court because EB appeared, pursuant to 55(b)(2) P must notify EB at
least 3 days prior to applying for default judgment.

3. P sues Bauer based on a 10k promissory note. D never files an answer. Can P request the clerk to
enter judgment in that amount?
Yes, according to 55(b)(1) when there is a sum certain amount the clerk may enter a default judgment. The
promissory note will serve as the necessary affidavit that proves the amount.

4. Assume P dismisses the case twice, once before EB answers, first because of P’s illness, and then
with EB’s consent to pursue settlement negotiations. P brings a third case. What likely result?
The third claim will not be allowed because the second claim was dismissed w/prejudice according to 41(a)
(1)(B)

5. LL sues T and serves T properly by substitute service. T’s daughter took summons and misplaced
it without speaking to T. LL receives a default judgment. The rule as enunciated in the Court of
Appeals is that T must allege “meritorious defenses” in order to vacate a default. In light if Peralta,
can T vacate the judgment as void.
No, in light of Peralta, because the notice is adequate and T has no meritorious defense.

6. In a recent D.C. Court of Appeals case, LL sues T by placing a summons on T’s door, which is
allowable under the D.C. statute, so long as LL has diligently tried to obtain personal service on two
prior occasions. T who is Rome and left phone number with LL argues that ensuing judgment is
void. What result?
Because there was no deprivation of due process, T must show meritorious defenses.

7. When cases were assigned to Judge Dragon Breath (an equal opportunity verbal abuser) in DC
Superior Court, both parties agreed to dismiss P’s claim without prejudice. Dragonbreath may
exercise his discretion to deny the dismissal.

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No, 41(a)(1)(ii) stipulates that the parties may agree to dismiss without order of court.

8. P sues D for negligence. D files an answer and counterclaim. P then requests leave of the court to
dismiss the case and all the claims. What result?
Under 41(a)(2), because ∆ brought a counterclaim the case cannot be dismissed if ∆ objects unless the
counterclaim can remain pending for independent adjudication (can’t be dismissed except upon order of ct.)

9. P sues D for medical malpractice. D’s attorney is a substance abuser and does not file an answer,
whereupon P takes a default. With a new attorney, D brings a motion to vacate the default. What
result?
Pursuant to Rule 55(c) the court will set aside the default if π shows good cause, this case should show
good cause.

Settlement
Pros: faster and cheaper, a way to avoid trial
Cons: leaves parties less satisfied than if a trier heard their stories

Settlement as a Contract
- A contract or release is an agreement in which the π agrees not to bring a suit or to drop one
already filed
- Most π’s want money in return for their agreement

Breach
- If a party breaches the contract duty and the other party wants to enforce it, then the party seeking
to enforce must sue for breach of contract, the contract in question being the settlement agreement.

Freedom to Settle
- The judge need not examine or approve settlements though they must grant π’s request to dismiss
the case if that is part of the deal.

Rule 23(e) (exception)

Requires judicial approval of settlements arising in class action suit, cases involving minors, and in some
multi-defendant cases.

ADEA (Age Discrimination in Employment Act): 29 U.S.C §626(f)

- Federal legislation regulates settlements releasing ADEA claims
- Offers must be clearly written, they must remain in effect for stated periods of time, they must
advise employees to consult a lawyer, and they must give settling employees at least a week in
which to revoke a signed settlement agreement

Out of Court/Prefiling Settlements

If the parties agree not to sue before the π files the suit the parties should draft a written settle agreement
stating;
- that, having filed suit, the π should seek voluntary dismissal and agree not to refile the suit
- that, having filed suit, the π should consent to a dismissal with prejudice
- that, having filed suit, the π should stipulate to a judgment against her and also agree not to refile
the suit
Defining the Scope of the Lawsuit
Pre-filing settlements eliminates all litigation costs, but this form of agreement requires the lawyer to
carefully define the scope of the threatened lawsuit

How to Defend a Lawsuit After the Parties Sign a Release

If, after signing a release, π nevertheless files a lawsuit, the ∆ would respond by bringing an 8(c) accord
and satisfaction affirmative defense then file a Rule 56 summary motion and ask for attorney’s fees because
the suit is in violation of Rule 11(b)(2)

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Settlement after Suit Filed: Achieving Finality in the Dismissal
When a settlement is reached after the suit is filed, the claim is dismissed w/prejudice

Seeking to Enforce Settlement in Court in 1331 Actions When Case is Dismissed

Langley v. Jackson State University

∆ agreed to promote π, but didn’t. W/out a consent decree π can’t sue on the contract in federal court
because there was no diversity (contract cases are not heard in federal court unless they satisfy 1332)
- If π wants to enforce the agreement she should file a motion
- If π still doesn’t get promoted, bring a motion to enforce the agreement. If the parties had a court
order/consent agreement the π should ask for civil or criminal contempt.
- No federal jurisdiction to enforce settlement of federal civil rights claims
Consent Agreements
- signed by court with court supervision
- a judgment that embodies the parties’ agreement

Retaining Jurisdiction??????
A separate provision of the settlement agreement in which the parties are obligated to comply with the
terms as part of the order of dismissal

Stipulation as to Liability: Tactical Rational Exxon Valdez

∆ tried to avoid punitive damages

Meditation: What is it, should it be required

Assisted negotiation, aid in overcoming barriers to agreement
- A mediator seeks to engage the parties in a structured set of discussions leading to agreement
- Mediators talk entirely of goals and desired outcomes, no facts and rights
- Mediators have no coercive power
- Statements made in mediation create evidentiary privilege

ADR Act (Alternative Dispute Resolution): 28 U.S.C. §651

In federal law, the act requires each federal district court to authorize, devise, and implement its own ADR
program to offer parties alternatives to litigation

Other Pretrial Alternatives

Neutral Evaluation
Presenting one’s case briefly to a neutral party who assesses it strengths and weaknesses in hopes it will
lead to a more realistic negotiating position.

Non-binding Arbitration
Arbitrator decisions do not bind parties unless they accept it

Summary Jury Trial

A small jury is chosen and the parties present their cases to the jury in a very abbreviated way
- the jury’s verdict is not binding
- the verdict serves as a basis for further negotiations
Judge Muscle Management//Mediation
The mediator threatens to report to the judge that one or another party is behaving unreasonably

Judges as Mediators
Two bodies of law allow a judge to manage litigation
1. Rule 16 – Pretrial conference: establishing early and continuing control so that the case will not be
protracted because of lack of management.

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 - Rule 16(c) contains a shopping list of management techniques ranging from establishing
time limits to encouraging settlements
2. ADR Act

Lockhart
Federal courts have the authority to order attendance of attorneys, parties, and insurers at settlement
conferences and to impose sanctions for disregarding the courts orders.

Matsushita: Full Faith and Credit of Consent Decrees

Federal courts must give full faith and credit to state court judgments approving settlements that release
claims within the exclusive jurisdiction of federal court. (same effect those judgments would have w/in
statee)

Confidentiality Clauses
- The ability of private litigants to enter into confidential agreements must yield to the policies
supporting broad discovery whenever the two come into conflict.
- The benefits of allowing discovery outweigh the need to encourage settlement.
- An exception would be whenever discovery would prejudice the opposing party and that injury
would outweigh the benefits of discovery

Kalinauskas: Protective Orders

In order to avoid repetitive discovery, courts may modify protective orders or settlement agreements to
allow for the discovery of facts otherwise held confidential under the agreement

Agenda Questions: 11/9/05

1. P sues D and immediately asks for a TRO. D opposes the TRO successfully, but does not file an
answer. In her order denying the TRO, the judge indicates that she thinks P’s case is a “stinker”.
What should D do?
Answer immediately according to Texaco because the π can dismiss it under 41(a)(2) and ∆ could
potentially lose a bundle.

2. Can a judge sua sponte dismiss a case per 41(b)?

Yes, π is obligated to prosecute and if π doesn’t then the court can dismiss the case

3. If the judge dismisses a case per 41(b) and simply writes “dismissed” in the docket, then P can
bring the claim again.
No, the case is dismissed with prejudice.

4. Give two concrete examples of failure to prosecute resulting in dismissals.

Failure to show up to a pretrial scheduling conference or by not submitting statements

5. See 472, 1(b). What if lawyer says client never returned calls making representation impossible?
Under 60(b)(6) the court may relieve a party’s legal representative from a final judgment for any reason
justifying relief from the operation of the judgment??????????

6. Same question. What if lawyer says he was in hospital for unexpected heart surgery for three
months?
Let him off the hook under 60(b)(1)
7. Why do courts resist the notion that they should approve settlements?
If judges are going approve settlements then they might as well try them.

8. As a rookie attorney, how do you know whether the dollar value of your settlement is appropriate?
The rookie should ask for advice from experienced lawyers and find out what the market value is.

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9. Should you be concerned that your contingent fee lawyer will be too pro-settlement because of the
nature of fee agreement?
No, the case is worth more up front to a contingent lawyer but a client shouldn’t be too concerned with this.

10. “A bird in the hand is worth two in the bush”. When might the hackneyed epigram be
appropriate to state to your clients.
When considering whether to take a settlement offer or proceed with trial, depending on circumstances of
case, it may be worth taking what you are sure to get rather than taking your chances with trial.

11. What reaction would you have if your prospective client will not enunciate any monetary
litigation except “I just want to tell my story to the judge?”
I would express a concern for my fee.

12. You ask your client what she wants. If you think her settlement range is way too late, should you
convey it to the other side right away.
Let the client know that they could get more but if the insist then make the client sign a document/retainer
explaining that you did tell client the settlement is too low so that they won’t sue you later.

16. You represent prospective home buyers who have claims under the Federal Fair Housing Act.
Your cases are referred by a Fair Housing Office that has a primary goal of discrimination
education. What approach will you take about anticipated confidentiality clauses?
These clients want publicity.

17. Same as above, but in your settlement, you want owner to attend fair housing classes an ensure
that the owner complies with the settlement in the future, e.g. to move your client to a more
accessible unit.

18. Would you agree to a stipulation as to liability in the above case? What circumstances?

19. What is the difference between mediation and arbitration?

Mediators facilitate communication in negotiations, aids in overcoming barriers to agreements, and have no
coercive power. On the other hand, arbitrators decide a dispute and issues a decision after having heard
from both sides (binding).

20. What is “solomonic” mediation?

Arbitrators (but usually done in mediation) may “do justice as he sees it, applying his own sense of the law
and equity to the facts as he finds them to be and making an award reflecting the spirit rather than the letter
of the agreement. (halving disputes)

21. P (MD) sues D (MD) in a federal court discrimination claim. The parties settled out of court and
the matter is dismissed. D does not pay as required under the agreement. What course?
Sue under breach of contract.

22. If the judge uses “muscle mediation” and strongly advises you to settle at a certain amount, what
should you do?
Ask for a different judge.

Arbitration
If the parties can’t agree with the help of a mediator, the best alternative to litigation is arbitration.
- an arbitrator decides a dispute an issues an oral or written decision after having heard from both
parties
- Arbitration is private, non-judicial adjudication

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Purported Advantages of Arbitration
- Lack of discovery saves money
- Arbitrators can change rules

Why not just use ordinary court system?

- permits parties to design their own procedure (do not have to be bound by precedent)
- parties may control the applicable law (can adhere to the traditions)
- faster, cheaper, more private (may dispense rules of discovery and insist that arbitrator disclose
neither the existence of a dispute nor his decision)
- parties can arrange to have only experienced and known arbitrators (eliminates the vagaries in
outcome that a jury may introduce – by doing this they may also deprive one side of the larger
damages the jury might award)
- the arbitrator may decide the dispute more “softly” than a court (could be advantageous or
disadvantageous)

Three Waves of Court Treatment of Arbitration

1. Early on courts were hostile
2. Courts enforced all arbitration agreements, including federal statutes
3. Courts didn’t enforce them cause they were not procedurally correct (skepticism about
arbitration agreements)

Disadvantages of Arbitration (Particularly for low income parties)

- Low-income parties will have to pay the arbitrators, whereas in the ordinary court system, low-
come parties could have a contingent agreement to pay the lawyers.
- Companies usually receive arbitration in their favor
- Arbitrators are not bound by precedent
- One side may receive less damages than what a jury might award

Motions to Compel Arbitration and Ensuing Stays of Litigation

If there is a arbitration clause, the party can insist, or bring a motion to compel arbitration as opposed to
court

Floss v. Ryan’s Family Steak House:

π attempted to sue ∆, but when applying for employment, π’s signed a form indicating they would arbitrate
all employment related disputes . ∆ filed a motion to compel arbitration. The court found that neither party
validly waived their rights to bring an action in federal court under the ADA and the FLSA.
- π’s did not receive any consideration for their promise to arbitrate their disputes
- the contract was fatally indefinite and illusory

Lyster v. Ryan’s Family Steak House

π sued for sexually harassment but the agreement said she must arbitrate any disputes. π argues the
agreement is an unconscionable adhesion contract.
- A contract is substantively unconscionable if there is undue harshness in the terms of the contract
- π never showed the existence of undue harshness, therefore, ∆ is entitled to an order compelling π
to pursue her claim in arbitration rather than a judicial forum

Hooters of America v. Phillips (fundamental unfairness)

In the absence of mutual obligations, there was no contract to enforce
- courts refuse to enforce fundamentally unfair agreements
- the employer had unfair advantage to change terms of the agreement in his discretion
Ferguson v. Writers Guild of America v. West (alternative system of decision making)
A screen writer sought court review of the arbitration proceeding that granted him the screenplay credit, not
the storyline credit to a movie he had written
(B) Courts are limited in their power review the final decision of arbitration panels

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 (C) The arbitrators held no hearing, deliberated independently, and their identities remained
undisclosed
(D) The dispute is non-justiciable. The credit-determination process can be handled more skillfully
and efficiently by arbitration committees than by courts

Arbitration Appeals
Possible, but not generally useful because the court will narrowly restrict the scope of its review
- The courts reviewing powers are limited to whether the parties actually agreed to submit this
particular dispute to arbitration, and
- Whether the arbitrator exceeded the power granted by the agreement

Agenda Question: 11/14/05 (true or false)

1. Arbitration agreements can ignore civil procedure rules.

True

2. Arbitration agreements can ignore a state’s substantive laws, including precedent

True

3. Arbitrators do not have to be lawyers.

True

4. In some instances, arbitration may award more expansive relief than a court, e.g. punitive.
True (sometimes)

5. Arbitrators may award injunctive relief.

F – Only judges do this because they have powers of comtepmt

6. Arbitrations may be used in custody proceedings

False, can’t be used in family disputes

7. Arbitrators are particularly advantageous to low income clients.

F – Arbitrators do not have to follow precedent that may be advantageous to the client. Also the client
would have to pay the arbitrator. (except in DC)

8. The parties could agree to arbitrate by coin-tossing.

F – Courts will not enforce this; it would be prevented under Ferguson

9. The Supreme Court takes a dim view of arbitration when P sues per a federal statute.
Federal Arbitration Act allows for enforcement of arbitration agreements in federal court

10. An arbitration clause may be one-sided requiring employee but not employer to arbitrate all
employment disputes.
F - according to Hooters (fundamental unfairness) (no mutual obligation)

11. Arbitration agreements that routinely call for employees (or customers) to pay for one half of the
arbitration are universally unlawful.
F-

12. Arbitration agreements may allow the arbitrator “unfettered discretion” to alter rules and
procedures without notice to parties.
True pursuant to Ferguson?????????

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13. Arbitration agreements which are one-sided – usually in favor of employer – are unenforceable.
T – according to Hooters

14. Basic due process extends to all arbitration: the right to confront, to be heard, to present
evidence.
F – no state action in arbitration

15. A party subject to arbitration must know the name of the arbitrators regardless of the underlying
arbitration rules.
F – pursuant to Ferguson

16. Appeal rights in arbitration are roughly equivalent to appeals of court decisions.
F – see above

1. LK tells her boyfriend the terms of the settlement. Caesar’s finds out. Caesar’s would be entitled
to 25k in liquidated damages – assuming agreement is the same as that preceding Kalinauskas in
Yeazell.
F – This would not be a material breach if it has no later consequences for Caesars’; maybe if she would
have held a press conference

2. As a part of the Thomas settlement in Kalinauskas, the court enters an injunction enjoining
Thomas from testifying in any additional cases. What result?
The court will allow Thomas to testify to discrimination, but not to the amount of the settlement.
______________________________________________________________________________________

3. If arbitration clause in contract and the company sue in small claims court, then what?
The court will not enforce the clause because the company has waived it.

4. If you don’t know anything about an arbitration agreement w/ ten days to oppose it, what should
you do?
Conduct discovery, motion for leave of court to extend time.

Rule 56: Summary Judgment

An adjudicated alternative to trial for cases so one-sided that trial would be pointless
- Asserts that there isn’t any conflicting facts that a trial could resolve

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 - SJ is a determination that there is nothing to have a trial about: not a weighing of evidence, not a
determination of which party has better evidence, not a determination of credibility.
- Different from 12(b)(6) cause it is factual

56(a) For Plaintiff

π must wait 20 days after filing complaint or after the ∆ has moved for summary judgment to make a
motion for summary judgment. (with or without supporting affidavits)

56(b)
∆ can move for summary judgment at anytime after π files the complaint. (with or without affidavits)

56(c)
Provides that such motions are to be granted when the record shows that there is no genuine issue of
material fact and that the moving party is entitled to judgment as a matter of law
- For the ∆ to prevail in opposing the π’s motion for sj does not mean that ∆ will prevail at trial. It
simply means there is something to have trial about

Affidavits
A written document in which the affiant swears under penalty of perjury that the statements made are true.
- Common document in summary judgment motions
- Typically drafted by lawyers who review them with the affiants who then sign them, attesting that
they are true

56(e): Form of Affidavits; Further Testimony; Defense Required

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as
would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the
matters stated therein.
- Sworn or certified copies of all papers or parts shall be attached to or served with (including taped
depositions or transcripts)
- The adverse party’s response, by affidavits or otherwise, must set forth specific showing that there
is a genuine issue for trial (if no response, sj shall be entered against the adverse party)

56(f): When Affidavits Are Unavailable

If the opposing party cannot justify the party’s opposition, the court may refuse the application for
judgment or order a continuance to permit affidavits to be obtained (possibly through discovery)

Standard of Appeals for SJ

De novo

Adickes
Pursuant to this case, a non-moving party’s approach to SJ is that the moving party must prove that it
wasn’t him (the non-moving party must show that it wasn’t him) (I didn’t do it)
- Moving party must show that other party can’t make claim

Celotex
Pursuant to this case, the moving party’s approach to SJ is that the non-moving party has insufficient facts
or no evidence for trial or has failed to meet its burden of persuasion. (P can’t show that it was D)
- Once the moving party bears it burden of informing the court, the responsibility shifts to the non-
moving party to show that there is a genuine issue of material fact

p. 514
5.

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(a) Suppose π lawyer presented to the court an affidavit in which the lawyer swore, “π told me he
watched the ∆ personally sign the promissory nt.” What’s the problem?
Affidavits are inadmissible if they contain non-personal knowledge

b. Suppose the π signs an affidavit whose core statement is “I know that ∆ signed the promissory
note.” What’s the problem.
Too conclusory, not a fact.

d. Suppose that in a deposition of the ∆, he said, “I signed the note.” Could the transcript of that
deposition be presented instead of the π’s affidavit? In addition to it?
The transcript could be presented pursuant to 56(e) because it is a sworn statement but it needs to be
attached to the affidavit, not a replacement of the affidavit

6.
(a) To defeat the motion for summary judgment, can ∆ sign and submit an affidavit saying, “I can
prove I didn’t sign the note”? Why not?
This is too speculative. An affidavit must deal with existing evidence (can’t say what you can do later)

p. 513
b. Now explain why the denial of the 12(b)(6) motion does not mean that the plaintiff will prevail at
trial. What does a trial test that a 12(b)(6) motion does not?
A trial tests the truth of the claim

Rule 50: Judgment as a Matter or Law

If during a trial by jury a party has been fully heard on an issue and there is no legally sufficient
evidentiary basis for a reasonable jury to find for that party on that issue, the court may determine against
that party and may grant a motion for judgment as a matter of law.
- motions for jml may be made at anytime before submission of the case to the jury
- The moving party is entitled to judgment as a matter of law because the non-moving party has
failed to make a sufficient showing on an essential element of her case with respect to which she
has the burden of proof

Rule 50(b): J.N.O.V.

At the end of trial, the losing party may renew its judgment as a matter of law:
- At this stage the party may ask for a judgment notwithstanding the verdict (j.n.o.v.) or may ask
for a new trial, or both
- May be based either on an error of law, such as the erroneous admission or rejection of evidence,
on an erroneous charge, or on so-called discretionary grounds, such as misconduct of counsel,
newly discovered evidence, or the verdict being against the weight of the evidence
- Must make this motion no later than 10 days after entry of the judgment
- In order to bring a j.n.o.v. motion at the end of the trial there must have first been a motion for jml

Directed Verdict:
Defendants Motion
- After plaintiff rests his case defendant can make this motion
- The motion says that even if all the evidence that plaintiff has offered is true and all legitimate
inference from such evidence are made, there is no right to relief
- The judge must assume that what the witnesses have said is true and then decide whether a
reasonable person could find for the plaintiff
- If answer is negative, the motion is granted; otherwise, defendant proceeds w/ his case

Agenda Questions: 11/16/05 (true or false)

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1. The only real difference between a msj and jml is timing.
T – Both jml and sj move to dismiss the complaint because there is no genuine issue for trial. Sj is before
trial, jml is after or during.

2. D may file a msj as D’s first response to P’s complaint.

T, according to 56(b).

3. Courts won’t grant motions for sj until discovery has been completed.
F – Courts will grant sj before discovery, however if a party explains that it did not have sufficient time the
party can request more time according to 56(f).

4. One of the principle purposes of the American military is to isolate and dispose of unsupported
insurgents.
One of the principle purposes of the sj until is to isolate and dispose of unsupported info

5. Courts rarely grant msjs because of the Seventh Amendment’s right to a jury trial.
F – The court grants sj when going to the jury is pointless because there is no issue in dispute

6. A mere scintilla of evidence which creates an issue of material fact in dispute is enough to defeat
an msj.
T – As long as the non-moving party comes forward with specific facts showing that there is a genuine
issue for trial by rebutting the moving party’s facts according to 56(e), but usually a scintilla is to little
evidence.

7. Courts have wide discretion to deny a msj without prejudice to allow a fuller factual development.
(More discovery)
T – Courts often allow more discovery in cases under 56(f)

8. A non-moving party may oppose a msj by theorizing a plausible scenario in favor of the party’s
claims.
F – The non-moving party must come forward with specific facts showing that there is a genuine issue for
trial rebutting the moving parties facts; Rule 56(e), Its not good enough to theorize a public scenario.

9. All reasonable inferences will be drawn in the moving party’s favor when considering a msj.
F – All reasonable inferences will be drawn in the non-moving party’s favor when considering msj.

10. Discrimination claims may involve state of mind and are thus inappropriate for sj.
T – But there is some reluctance in granting sj in these cases

11. Evidence used to support a msj need not be admissible at trial.

F – Pursuant to rule 56(c), supporting and opposing affidavits shall set forth such facts as would be
admissible in evidence.

12. Summary judgment will be entered automatically if the non-moving party does not file an
opposition.
F– According to 56(e), when an adverse party doe s not respond to the sj motion, the court, if appropriate,
shall enter the sj against the adverse party.

13. A party seeking more time to file an opposition to a msj can simply argue in the “points and
authorities” of a motion to extend time when more time is essential.
T – Under 56(f) a party may ask for an extension or a continuance

Which statement captures the practical result of the holding in Celotex?

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14. “I can prove it wasn’t me.” “She can’t prove it was me.”

15. Which statement from the supervisor might have defeated the msj?

“I can tell you which asbestos we used at the plant during the time Mr. C worked there.”
“I can testify that Mr. C was exposed to asbestos in our WDC plant.”

16. What affidavit would have prevented msj in Bias case?

Judicial Management
Studies commissioned by Congress has found that early judicial management reduced time to disposition,
but increased litigation cost.
- The single management technique that consistently speeded litigation was setting an early date for
trial

Clearance Rates
- measures not speed of disposition, but whether the system as a whole is gaining ground or falling
behind
16(a)
The court may direct the attorneys for the parties and any unrepresented parties, to appear before it for a
conference before trial for such purposes as
(5) Facilitating the settlement of a case

Rule 16(b)
Authorizes pretrial scheduling order after the Rule 26(f) meeting
- The aim of pretrial orders is to prepare parties for actual trial by encouraging both a winnowing of
legal theories and factual disputes and a precise identification of questions to be contested at trial.

A scheduling order limits the time;

1) To join other parties and to amend the pleading
2) To file motions, and
3) To complete discovery
May also include
4) Modifications for the times for disclosures under 26(a) and 26(e)(1) and of the extent of
discovery to be permitted
5) The date for conferences before trial, a final pretrial conference, amd trial; and
6) Any other appropriate manner

The order shall be issued within 90 days after appearance of ∆ and within 120 days of complaint served

A schedule shall not be modified except upon a showing of good cause and by leave of the court.

16(c)
Contains a shopping list of management techniques ranging from establishing time limits to encouraging
settlements.

16(e)
No amending or modification to pre-trial order, except when there is manifest injustice to amender, unless
other side consents

16(f): Sanctions
If a party or attorney fails to obey a pretrial order or appear at the conference, or be unprepared or in good
faith fails to participate, the court, on its own initiative, may make orders and shall require the payment of
reasonable attorney fees.

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Sanders v. Union Specific Railroad
A court may dismiss an action with prejudice if a party’s failure to comply with deadlines and court orders
leads to unnecessary delay and expense.
- The court order expressly advised Sanders that failure to comply could lead to dismissal
- Counsel’s conduct left the court with last minute notice of a total failure of preparation, a failure
that disrupted the trial calendar
- The en banc judges thought the trial judge was too harsh (judge was not present at conference)
McKey v. Fairbairn
π’s attorney moved to introduce housing regulations as proof of negligence during the trial, but the court
denied the motion because the regulations were not contained in the pretrial order.
- Trial judges have justifiably large discretion in refusing parties to change their theory during the
trial and after a pretrial order

Agenda Questions: 11/21/05

1. A judge must be present at a pre-trial conference.

F – But should be under Sanders????????

2. A judge may coerce the parties into settling at a pre-trial conference.

T – Pursuant to rule 16(a)(5)

3. A judge may insist that the parties attend the conference to facilitate settlement
T – pursuant to 16(a)

5. A court may modify pre-trial evidence if discovered after the order has been issued.
T – If there wasn’t lack of diligence to find out earlier.

6. When π’s lawyer neglects to show up for a pre-trial, the court should dismiss P’s claim, even if P
had no culpability (guilt or responsibility).
F – The dismissal should be the last straw. The court should impose lesser sanctions first. But under 16(f),
if a party fails to appear, the judge, upon motion, or the judge’s own initiative, may issue sanctions. In
addition to any sanctions, the judge shall require the party to pay reasonable expenses and attorney’s fees.

7. An order sanctioning P for failure to obey a pretrial order would be upheld, unless there was an
abuse of discretion.
F – Under Mckey, courts have justifiably large discretion in imposing sanction for violations of pretrial
orders.

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