Civ Pro Outline Park

Civil Procedure Outline 1 of 51 I. SUBJECT MATTER JURISDICTION A. Overview i. Unlike personal jurisdiction SM a. Can be raised at any time b.
Can be raised by a judge even when all parties want the case in federal court - i.e. Mottley ii. If there is no SM jdxn, there is no case in Fed Court- lack of jurisdiction is fatal to the case B. Diversity Jurisdiction i. 1332- Diversity Jurisdiction a. the district courts shall have jurisdiction where amount in controversy exceeds $75,000 and is b/t 1. citizens of different states 2. citizens of a state and citizens of a foreign state 3. citizens of different states and in which foreigners are also parties 4. a foreign state as and citizen of a state or of different states a. If the sum is made in good faith and recovers less than $75,000 court may deny and impose costs b. For diversity jurisdiction 5. corp is a citizen of principle place of business and where incorporated 6. the executor of an estate is a citizen of the same state as dead person 7. For diversity jdxn, unincorporated associations have citizenship where each of its members have citizenship, i.e. partnerships, unions ii. BAKER- citizenship=domicile + the absence of intent to leave [issue of floating intent] iii. MAS v. PERRYa. Mas was a domiciliary of MI since she only moved to LA for school and lacked intent to remain in LA. Until a person acquires a new domicile, they remain a domiciliary of their previous domicile b. Even though they recovered less than the amount the statute require, they had a good faith claim of the required amount. You cant revoke federal SM jdxn because they recover less than required amount c. Difference between domicile, resident and citizen 1. Resident- living in a state 2. Domicile- living with an intent to remain there, true, fixed, permanent home a) You keep your domicile until you move and intend to stay where you move b) Student is a citizen of the state they were in b4 3. Citizen- citizen of US + domicile of state iv. Cant aggregate claims b/t s to get amount in controversy, each to each must satisfy $75,000 v. Rationale behind diversity jdxn is that it protects against bias for the local party in state ct
Civil Procedure Outline 2 of 51 vi. Does not allow stacking of s to get required amount in controversy, each claim must stand on its own. C. Federal Question i. Article III Section 2 of the Constitution- Judicial power of the Fed government extends to all cases, in Law and Equity, arising under the Constitution, the Laws of theU.S. ii. 1331- The district courts have original jdxn of all laws arising under the Constitution and the Laws of the U.S. iii. MOTTLEY- Well Pleaded Complaint rule a. In order to have fed SM Jdxn, the Fed Question must arise out of the cause of action in a well pleaded complaint 1. A possible constitutional or fed. question defense cannot give Fed SM jdxn D. Supplemental Jurisdiction i. GIBBS- Fed Court is allowed to take jdxn over a state claim if the fed and state claim both arise out of common nucleus of operative fact. a. Pendant jdxn is discretionary b. Should incl. Factors such as judicial economy, convenience, fairness c. Should be turned down if state issue predominates or is dismissed d. Remains an issue throughout the trial ii. 1367- Supplemental Jurisdiction [codified Gibbs] a. The federal court shall have supplemental jurisdiction over any claims that are so related to the original that they form part of the same case b. In a diversity case the court not have jurisdiction over claims made by people joined by under 14, 19, 20 or 24 or over claims by people proposing to be s under 19 or 24 if this would break diversity [leaves out s adding under 14 and 20-Gaping Hole] c. The court may decline supplemental if (1) claim raises a complex issue of state law (2) state claim substantially predominates (3) the district court dismisses federal claims (4) any other compelling reason d. S/L is tolled while claim is pending and for 30 days after dismissed unless state has longer time e. Codifies Gibbs so it allows Pendant Jdxn [state + fed claim] and Ancillary Jdxn{claim is state and counterclaim is fed] f. There must be a substantial Federal claim, it cannot be frivolous g. Gaping hole- technically you can add a that destroys diversity since you are only barred from adding s under the FRCP rules, but courts have treated this as a mistake and wont allow it iii. PALMER- You can add more parties and state claims as long as you have a federal claim to hang state claims on to a. iv. Romero exception- [Ga]dr [NY] state + Hosp [Ga] Fed- breaks diversitv but exception permits the court to disregard non-diverse party who is properly there on fed ques v. Courts have also allowed class action suits where each has less than required amount, unlike for 1332 a. This ONLY matters if the class action is on the state claim cos there is no required amount for fed ? jdxn
Civil Procedure Outline 3 of 51 E. Removali. 1441 Removable Actions 1. Any action that has original jdxn in fed ct, can be removed to fed ct in the same place 2. You cannot remove if the diversity action is brought in the same place as s domicile 3. You can remove if you have a fed ? joined with other nonremovable claims e. You can remove if fed jdxn was proper in the 1st place (i.e. for patent or tax claim ii. 1446 Procedure a. Notice of removal must occur w/in 30 days after gets the receipt of initial pleading through service or otherwise b. If original claim was not removable and an amended claim becomes removable, then notice of removal may be filed 30 days after receipt of amended pleading through service or otherwise 1. MURPHY BROS- Getting a copy of the complaint does not trigger the time period of removal; you also need service, unless service is not required 2. Leads to 3 possibilities a) Summons is served b4 complaint clock starts ticking when you get copy of complaint b) Summons is served after complaintclock starts ticking when you get copy of complaint c) Complaint filed but service not requiredclock starts ticking when you get copy of complaint II. PERSONAL JURISDICTION A. Overview i. Limitations a. State statues b. Constitution- Due Process Clause places two restrictions 1. Traditional notions of fairness 2. Must have adequate notice c. Federal courts must analyse personal jurisdiction as if it were a court of the state in which it is located- Rule 4 ii. 3 types a. In personam- when forum has power over person b. In rem- court has the power to adjudicate the rights of every1 in world w/ respect to a particular piece of property 1. e.g. forfeiture of property used in illegal activity c. Quasi in rem- case does not involve property but court has the power to decide over a specific piece of property 1. e.g. sue for property cos cant get $ recovery iii. Personal Jdxn must be raised at the beginning of the trial B. Statutory Limitations i. Most states have statutes that allow personal jurisdiction when has committed an act that brings him within the reach of a long arm statute a. 2 types
Civil Procedure Outline
4 of 51 1. Unlimited- CAs long arm statute allows courts power over any person or property that is allowed by constitution 2. Specifica) GRAY- Ill had a statute that allowed jurisdiction over any cause of action arising from transaction or tortious act in the state. 1) Court held that putting your product into stream of commerce where you know product will be in state allows you to have jurisdiction in that state 2) Court also held that the tortious act occurs in the last place, i.e. where the injury occurred 3) When analyzing long arm statutes, you must first see whether case fits in statute and then if statute is constitutional [this one is] C. Constitutional Limits on Personal Jurisdiction i. Traditional- Physical Power a. PENNOYER- Jurisdiction is the consequence of the states physical power to exert judgment, State has power over everything in its borders and nothing w/o- due process requires notice b. There are three ways you can have personal jdxn traditionally 1. is physically present in state and served with process a) BURNHAM- father on vacation in CA and wife served him. 1) held mere presence in state when process served enough for personal jurisdiction- allowing a transient to be served with process for a cause of action unrelated to the brief presence in state 2) held that mere voluntary presence enough 2. When is domiciled in that state 3. Where consents to jurisdiction a) Express Consent1) By contracti) CARNIVAL- Court held that consented to Fl jurisdiction by buying ticket with forum selection clause on the back 2) By appointment of an agent to accept service of process i) State can require non-resident business to appoint an agent b) Implied Consent1) HESS- When state has an interest in regulating an activity (ex. Driving), the non-resident appoints the state as agent implicitly by engaging in that activity c) Voluntary Appearance1) Insurance Co. of Ireland-court held that if you make a limited appearance to argue jurisdiction you are bound by courts decision ii. Specific vs. General Jdxn a. Specific- the cause of action arises out of contacts with the state? 1. Look to International Shoe etc.
5 of 51 b. General- the cause of action does not arise out of the contacts with the state [but there are contacts] 1. Need to prove systematic and continuous activity 2. HELICO- Purchases and negotiations, even if they relate to the cause of action, are not sufficient evidence of systematic and continuous activity need to have jurisdiction in a case where the cause of action does not arise out of contacts with the state iii. Modern Standards- Fairness, suit cannot offend traditional notions of fair play and substantial justice- must satisfy two prong test of minimum contacts and reasonableness a. Minimum Contacts1. INTERNATIONAL SHOE- if there is a minimum of contact w/ the state state can have personal jurisdiction, court looked at 3 elements to satisfy 1) Volume of business transactions 2) Continuity of transactions 3) Connectedness of transactions w/in state 2. Purposeful availment of the benefits of the state- even if s activities are performed outside the state personal jurisdiction is proper if can reasonably anticipate his actions could give rise to a cause of action in the state a) HANSON- must purposely avail himself of states benefits, contacts cannot be accidental b) WORLD WIDE VW- must purposely avail himself of the state so that he can reasonably expect to be haled into court there foreseeability 1) putting product into stream of commerce and purchaser taking it somewhere else does not give jurisdiction c) KULKO- No jurisdiction for CA court to make dad pay child support since only contact w/ state is that his kids live there- no purposeful availment. d) KEETON- A magazine is subject to jurisdiction wherever it is sold, it should reasonably expect to be haled into court 3. Long term relationship with forum a) BURGER KING- Jurisdic over MI resident who made a contract w/ Fl company 4. Deriving economic benefit from the forum a) GRAY- Putting your product into stream of commerce where it may come into other states is sufficient for personal jurisdiction in that state 1) It is sufficient that the act or transaction itself has a substantial connection with the state or the forum 5. Seeking to serve the forum even if only a single act a) McGEE- One systematic and long term contact [i.e. insurance contract] in the state is sufficient to exercise personal jurisdiction, cause arose out of insurance contract in CA
6 of 51 b) CALDER- Personal jurisdiction of CA over an editor in Fl is ok since he purposely directed harmful activity at the state 6. SCHAFFER- All types of actions are subject to minimum contact test a) Presence of intangible property w/o min contacts is not sufficient to get PJ b. Reasonableness- Minimum contacts are not enough, a jurisdiction analysis must also take into account state and litigants interests 1. ASAHI- Merely putting product into stream of commerce is not enough to force a foreign company into American Court 2. MILLENIUM- Without further contact it is unfair to subject a company with a web site to jurisdiction in every state that can see it iv. Notice- a reasonable method of notice must also be used to notify of a lawsuit a. MULLANE- You must notify by the best means possible, as many litigants as possible. Notification must be reasonably calculated to notify b. Rule 4- Summons1. (a) Form 2. (b) Issuance 3. (c) Service w/ Complaint 4. (e) Service Upon Individuals w/in a Judicial District of the US 5. (k) Territorial limits of Effective Service 6. (m) Time Limit for Service v. Venue a. 1391- Venue 1. A founded on diversity can be brought in any 1) Judicial district where any defendant resides, if all defendants reside in the same state 2) District in which a substantial part of the events occurs 3) District where any defendant is subject to personal jurisdiction 2. A civil action not founded on diversity [federal question case] may be brought 1) In any district where any defendant resides, if all defendants reside in the same state 2) In any district to wear a substantial part of the claim occurred 3) Judicial district in which any defendant may be found b. BATES- Venue is allowed where a collection notice is sent, even if not addressed there, because that is where a substantial part of the cause of action occurred c. PIPER- Forum non conveniens 1441 1. A can not pick an inconvenient forum just because there is more favorable law
7 of 51 2. balance s interests w/ s inconvenience when deciding whether to transfer or dismiss 3. If a venue is not convenient for , the suit can be moved to any venue where the court has original jurisdiction
III.
PLEADING D. The Historical Evolution Of Pleading vi. Code Pleading- a system of pleading a. Only allowed one cause of action 1. Made pleading a gamble since you had to choose carefully which cause of action you wanted to plead b. GILLESPIE- code pleading requires that the facts must be alleged in the complaint, and not just conclusions 1. The court held to the complaint should stand if a presents facts sufficient to constitute any cause of action 2. That trend is for courts to move toward a more factual/specific pleading requirement c. The states that allow code pleading are quite liberal in allowing the complaint to be amended d. There are three general purposes for pleading requirements 1. Notice to defendant 2. Notice to the court 3. Deciding the merits vii. Notice Pleading- requires that only enough facts be pleaded to put the opposing party on notice of the charges against him a. Developed through the FRCP1. Federal Court uses and most states b. Rule 8b only requires a short and plain statement of the facts c. Allows inconsistent & alternative pleading viii. Rule 7- Pleadings Allowed- Form Of Motion a. Pleadings 1. there shall be complaint and answer, a reply to counterclaim, answer to cross-claim, 3rd party complaint, 3rd party answer, no other pleading allowed, except that court may order reply to an answer or 3rd party answer b. Motions and other papers 1. application for an order must made by motion in writing ix. Rule 8- General Rules Of Pleading a. A pleading shall set forth a short and plain statement of the grounds of 1. jurisdiction, 2. relief, 3. demand for the judgment for the relief b. A party shall state in short and plain terms the defenses. If a party is w/o knowledge sufficient to form belief the party shall state = denial. Pleader shall deny each part or if they deny everything they must do so in accordance w/ r11 c. In the pleading the party shall state affirmative defenses. If a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court shall treat as if there were no mistake d. If a responsive pleading is required then failure to deny = admission
8 of 51 e. Each averment shall be simple concise and direct. A party may plead in the alternative f. All pleadings shall be so construed as to substantial justice E. Describing And Testing The Plaintiffs Claim vi. Rule 12- Defenses and Objections- When and How Presented-By Motion or Pleading- Judgment on the Pleadings g. When Presentedh. How Presented- every defense must be asserted in responsive pleading. Except the following may be made by motion 1. lack of SM jurisdiction 2. lack of PJ 3. improper venue 4. insufficiency of service 6. failure to state a claim upon which relief may be granted 7. failure to join a party under r19 i. Motion for Judgment on the Pleadings- after the pleadings have closed either party may move for judgment on the pleadings. If they add information r56 SJ j. Preliminary Hearingsk. Motion For More Definite Statement- if the pleading is too vague that a party cant respond the party may move for a more definite statement l. Motion To Strike- the court may strike any redundant, immaterial, impertinent, or scandalous matter on courts initiative or by motion m. Consolidation Of Defenses In One Motion- if a party makes a motion but omits a defense not in h2 that is available it is waived n. Waiver Or Preservation Of Certain Defenses1. a defense for lack of PJ, improper venue or service is waived according to G 2. a 12b6, failure to join indespensible party under 19 may be made inany pleading by 7a or by motion for judgment on the pleadings or at rial on merits 3. SM jurisdiction motion may be made at any time vii. The Problem Of Specificity o. US v. BOARD OF HARBOR COMMISSIONERS- a complaint need not be more specific if it is sufficient to fairly notify the opposing party of the nature of the claim 1. Court says a motion for a more definite statement under rule 12 e is ordinarily restricted to situations where a pleading suffers from unintelligibiltity rather than the want of detail 2. Complaints can also be too long, complaints which ramble, which needlessly speculate, accuse, and condemn, and which contain circuitous diatribes far removed from the heart of the claim that do not comport with rule 8. 3. The purpose of the rule is to give the notice of this claim for being asserted so as to permit the adverse party the opportunity to file a responsive answer, prepare an adequate defense and determine whether the doctrine of res judicata is applicable 4. Rule 12f authorizes a motion strike portions of a pleading that are immaterial, impertinent, or scandalous. A motion to strike can be used to attack an insufficient defense, or part of a prayer for relief that is not justified by the law. [such as a request for punitive damages in a breach of contract case] p. CONLEY v. GIBSON- holds that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief.
9 of 51 q. Posner- you have to have some standard- must be some direct, inferable facts to create relief viii. Consistency and Honesty In Pleading r. Inconsistent allegations1. KOPPMAN- claims can be made in the alternative regardless of consistency, unless the pleader has knowledge of facts that would make one of the alternatives untrue. a) Policy weighs in favor of alternative pleading so that controversies may be sealed and complete justice be accomplished in a single action b) There are advantages to the pleading inconsistently 1) If there were two suits each defendant might blame the other which would bar finding a preponderance of the evidence 2) Trying both defendants at once might strengthen the case because one defendant might help make the case against the other defendant c) It would be unfair to force the wife to prosecute separately because cause was almost certain to be one or the other and if she was forced to do them separately, she might lose both cases. s. Rule 11- Signing of Pleadings, Motions and Other Papers, Representations to Court; Sanctions 1. Rule a) Signature- every pleading should have attorney signature b) Representations to Court 1) by presenting anything to the court the party is certifying that i) Is not being presented for improper purpose ii) Claims are non-frivolous iii) Allegations have evidentiary support, or are likely to iv) Denials are warranted on evidence or are reasonably based on lack of info c) Sanctions-if the court determines b has been violated the court may provide sanctions upon attorney, firm or party 1) how initiated i) By motion- has 21 day safe harbor ii) On its own initiative court can make order 2) Limited to what is needed to deter [can be paid to other side or into court, does not have to be monetary] d) Does not apply to discovery 2. ZUK v. EPPI- even if the attorney does not have bad faith but does not make a reasonable inquiry into the facts, rule 11 is justified a) Court determines that Rule 11 sanctions are meant to deter acts, not to help prevailing parties regain their attorneys fees
Civil Procedure Outline 10 of 51 x. Scrutinizing The Legal Sufficiency Of The Plaintiff S Claim a. MITCHELL- successful 12b6 claim 1. In deciding that there a motion to dismiss was properly granted, the court is required to accept only well-pleaded facts as true without considering any new legal theory asserted by the plaintiff 2. Ordinarily Federal Courts will, in granting a motion to dismiss for failure to state a claim, also granted the plaintiff leave to amend at least once to try to cure the defect that prompted the dismissal 3. restriction on broad notice pleading xi. Heightened Requirements For Specificity a. ROSS- a complaint alleging fraud must contain specific evidentiary factual allegations and be pleaded with particularity according to rule 9b. 1. Although 9b allows you to lead knowledge generally, you must plead this specific circumstances leading to the alleged knowledge 2. It is reasonable to require that the plaintiffs specifically plead those events which they assert give rise to a strong inference that the defendants had knowledge of the facts contained in Paragraph 18 of the complaint or recklessly disregarded their existence. 3. Plaintiff was not specific enough in the pleading as for three reasons a) They must have pled defendant had knowledge of statements in the unpublished report b) That they knew the of the knowledge or recklessly disregarded before 1973 c) They must show that the price they brought it at was artificially inflated due to the fraud 4. According to the FRCP there are special pleading requirements for cases involving mistake and fraud- R9b- because a) Higher requirement of notice because some fraud cases may involve more complicated transactions and numerous parties b) Injury to reputation c) Limiting in terrorem value of suit 1) By requiring more detail in the pleading, the court hopes this will be helpful in screening out lawsuits that will fail at an early point b. CASH ENERGY- a higher standard of particularity of pleading will be required where a heightened concern for due process arises by reason of that drastic nature of the remedies sought 1. Used an analogy to fraud to broaden the requirements of rule 9b to extend to CERCLA claims a) Says that the policies underlying the making of the statute are the same as those in requiring a higher reading standard in this case
11 of 51 2. This also came about as a result of the plaintiff suing the corporate officers instead of just the corporation c. LEATHERMAN- Rule 9b only requires heightened pleading in the cases of fraud and mistake. All other types of actions require and a short and plaintiff statement of the facts as required by rule 8b. 1. Expresio Exclusio rule- if the rule says one thing, then the other is excluded a) So, if the rule 9b requires more specific pleading for specific cases, the ones that are not listed do not have this requirement. 2. Because the rule 8 does not apply to the reply, some courts have required the reply to include particularity 3. 8f says that pleadings should be construed so as to do substantial justice 4. 9b limits the filing of meritorious claim D. Defendants Response i. Pre-Answer Motions Under Rule 12a. Disfavored- Lack of PJ, improper venue, insufficient service, insufficient process [they are raise it or lose it] b. Favored can happen any time up to trial, failure to state defense, 12 b6 or failure to join under r19 c. Most favored is lack of SMJ- can be raised at any time even after trial d. Why are there separate motions? 1. Importance a) Either very important or not important at all 2. Cant tell from the pleadings 3. They can be separated from the rest w/o deciding the merits ii. Failure To Answer-Default a. Rule 55- Default Judgment 1. a) Default judgment is entered when someone fails to appear where you appear but dont comply with the procedures 2. b) Judgment of default may be entered by either a) the clerk if the claim is for a sum certain or for a sum which can by computation be made certain b) the court the defaulting party will be served with written notice of these three days before the hearing and there may be a hearing to determine damages 3. c) the court can set aside the judgment of default for good cause shown a) uses a more lenient standard than 60c- just not be willful b. Rule 60- Overturning Default Judgment- much harder to do because the court has already ruled and it is more trouble to reverse [and courts dont like to reverse themselves] 1. b) on motion and when such terms are just the court can overturn a final judgment for the following reasons a) 1- mistake, inadvertence, surprise, or excusable neglect b) 2- newly discovered evidence by which the due diligence could not have discovered it in time
12 of 51 c) 3- fraud, misrepresentation, or misconduct of the adverse party d) 4- the judgment is void e) 5- it is no longer equitable f) 6- any other reason justifying relief g) for 1, 2 and 3 you have no more than a year after the judgment to overturn it c. SHEPARD CLAIMS- the lawyer thought he had 30 + 45 days to file an answer and failed to read the letter given to his secretary judge entered default for his failure to answer 1. R55 allows court to set aside entry for good cause 2. Court used a 3 prong test a) Whether will be prejudiced b) Whether has meritorious defense 1) Dont have to show that you would win, just that your defense is good at law 2) This court doesnt take this requirement too seriously c) Whether culpable conduct of led to default 3. You dont need all 3- just tip the scales iii. The Answera. Admitting or denying averments 1. You cant usually deny every averment because rule 11 makes you tell the truth 2. DAVID v. CROMPTON & KNOWLES- pleading lack of knowledge = an admission if has knowledge or access to the information a) 3. R8- If party is w/o enough info they can say that and this = denial 4. But if they should know then admission, because it is in BF 5. Party should not deny allega that it knows is true but doesnt have to admit if they dont have enough evidence 6. Negative pregnant- denying all allegations because 1 is not truecourts take this as misleading and usually require you to deny every allegation separately b. Affirmative defenses 1. Defense= denial I didnt do it 2. Affirmative defense= answer that gets you off the hook I did it but I had a legal reason 3. Burden of pleadinga) R8c sets out 19 affirmative defenses and is required to plead them [use them or lose them] b) When a statute provides for something except in a certain case, the certain case is an affirmative defense and is required to plead the exception 4. Ways to allocate burden a) By statute b) Policy reasons c) Fairness [who has more access to information] d) Probability [if is pleading something unlikely]
13 of 51 5. no ve pregnant- cant deny everything as a group- must deny stuff separately iv. Counterclaims a. R13- counterclaims and cross claims 1. (a) Compulsory- if the counterclaim arises out of the same transaction or occurrence then it must be in pleadings or you lose it a) no independent jurisdiction needed- covered under 1367 2. (b) Permissive- if the counterclaim doesnt arise out of the same transaction or occurrence, then you can bring it in another action if you dont bring it in the pleadings a) Separate basis of jurisdiction needed 3. (g) A party can [but doesnt have to] add a claim against a coparty arising out of the same transaction a) Its not mandatory because a party shouldnt be forced to create a fight b/t co-parties 4. (h) Persons other than the original parties may be added in accordance w/ 19 and 20 5. (i) Court can sever claims if it wants to b. A party is not obligated to bring counterclaim if 1. Not available to be brought at the time a) Ex. breach of K claim filed- may have claim for missed payments but they are not due yet 2. Claim has already been brought elsewhere c. WIGGLESWORTH- The counterclaim was permissive because it involved transactions that occurred at diff times, involve diff legal issues and diff evidence diff transaction and occurrence 1. Since it was a permissive counterclaim it could not be brought in the same trial because it didnt have 1367 jurisdiction 2. The counterclaim must be compulsory [ supp jurisdiction] or have its own independent jurisdiction to be in fed court d. Test to determine if counterclaim is compulsory [same transaction or occurrence] 1. Are the issues of fact and law basically the same? 2. Would res judicata bar a subsequent suit on s claim absent the compulsory counterclaim rule? 3. Will substantially the same evidence support or refute and s claim? 4. Is there any logical relationship b/t the claim and counterclaim? [but for test] E. Voluntary Dismissal i. Rule 41-Dismissal of Actions a. Voluntary Dismissal; Effect Thereof 1. can dismiss w/o prejudice by i) filing motion before service of an answer or summary judgment or ii) by motion signed by all the parties. But if has already dismissed once then the 2nd = adjudication on the merits 2. the court can order dismissal w/o prejudice w/ terms and conditions the court deems proper [makes it harder to dismiss w/o prejudice once trial work has started- you have to prove why you want to dismiss
14 of 51 b. Unless court says otherwise, involuntary dismissal is w/ prejudice, except for certain reasons that are listed ii. Even though not in the rule, the court will not allow dismissal if parties have done some work F. Amendments To Pleadings i. Rule 15 Amended and Supplemental Pleadings a. A party can amend once b4 the answer or if no answer is required then in 20 days of being served. Otherwise you can amend by consent of parties. Leave to amend shall be freely given as justice requires b. When issues that are not in pleadings are tried by xpress or implied consent, they will be treated as if they were in the pleadings. If the other party objects then the court can allow amendment as long as other party not prej. If they are prej then court can grant continuance. c. An amendment relates back to the original pleading when 1. Allowed by law 2. The amended claim or defense arose out of the same transaction or occurrence 3. The amendment changes the name of the party w/in period provided by R4m and the party a) Has received notice so they wont be prejudiced and b) Knew or should have known that but for a mistake in the identity it should have been them ii. Permission To Amend a. DAVID v CROMPTON & KNOWLES- the court is justified in denying amendment if the pleading contained incorrect answer that led him to believe he sued the correct person because amendment would cause prejudice because SOL had run out 1. Even though unfair to , it is unfair to leave w/o claim, esp when mislead iii. Relation Back Of Amendments a. SWARTZ v. GOLD DUST- amendment was allowed because 1. Amendments should be freely given the only requirement should be whether justice will be served and is other party prejudiced a) Should be liberally construed if there is no bad faith 2. The same transaction was that she fell [when the harm occurred] 3. did have notice because he should have known john doe was him b. In 1991 congress amended rule 15 1. Before the original had to know w/in the period of service- 120 days but the new had to know w/in statute of limitations anomaly in some cases where new had to know before original 2. Now they both have to know w/in the period of service=120 days a) New anomaly if files well in advance of statute of limitations now the has much less time than before SUMMARY! Different Meanings Of Same Transaction Or Occurrence Rule 13
Civil Procedure Outline 15 of 51 o Same transaction or occurrence= has to do w/ similar evidence stricter test o This is because r13 has to do w/ economy puts all suits w/ same subject together Rule 15 o Purpose of rule 15 is fairness and justice o Lets get around sol because the purpose for sol [which is repose and preserving evidence] are still kept since the party should have known it was them and their own investigation should lead to the real cause looser definition Different purposes [policy goals] can diff definitions of same transaction or occurrence IX. ESTABLISHING THE STRUCTURE AND SIZE OF THE DISPUTE J. Proper Parties To A Suit iv. Rule 17- Parties and ; Capacity a. Party must sue in the name of the real party in interest, the party who has interest in the action b. They must sue in their own name c. Protects legitimate interest of v. SOUTHERN METHODIST- s cannot sue anonymously if they allege sex discrimination because it is not a matter of a sensitive or personal nature or constitutionally challenging laws they have broken a. Here, it is a specific case w/ specific harm and the needs to know who it is so they can put on a good defense b. Absent a strong reason to protect id, s must use their own names vi. Courts have allowed fictitious names a. If very sensitive case-i.e. Roe v. Wade 1. Challenging a Constitutional measure, not hurt by not knowing who she is, and this was a highly sensitive case b. They can also order protective measures K. Joinder of Claimsvii. Rule 18- Joinder of Claims and Remediesa. A party asserting relief as a claim, counterclaim, cross claim or 3rd party claim may join as many claims as the party has 1. Does not mean they will be tried together b. Rule 18 makes it easier to join claims than parties because if you are just adding claims 1. There are fewer lawyers economy 2. No jurisdiction or venue issues economy 3. Discovery would be similar economy c. Joinder is never required d. Easier than 20 e. Note: only a pleading rule, claims can be severed under R42b when separate trials would further convenience, prevent prejudice, or be more economical viii. Counterclaims And Cross-Claims a. Rule 13-
16 of 51 1. A pleading shall state as a counterclaim any claim that arises out of the same transaction or occurrence- Compulsory Counterclaim- use it or lose it a) Are the issues of law and fact the same? b) Is there a logical relationship b/t claim and counterclaim? c) Will substantially the same evidence be presented? 2. A pleading may state a claim not arising out of the same transaction Permissive Counterclaim 3. (g) A pleading may state a cross-claim against a co-party arising out of the same transaction or occurrence 4. (h) Other parties may be joined in accordance w/ rule 19 and 20 G. Joinder Of Parties i. Rule 20- Permissive Joinder of Parties a. All persons may join to assert relief [or join s] jointly, severally or in the same transaction or occurrence or there will be the same ?s of fact and law. Judgment does not have to be for or against all of them b. The court may make any order to prevent embarrassment, harassment, delay or separate trials or other orders to prevent prejudice 1. can also sever under 42 c. Subject Matter Jurisdiction: 1367- supplemental 1. diversity claims by s: no supplemental jurisdiction over s joined under this rule 2. diversity claims against s under this rule: independent jurisdiction d. KEDRA- court allowed joinder of different policemen during different incidents when one family alleged a systematic harassment by the PD because the systematic nature = same transaction or occurrence 1. Though there might be prejudice against s since all would be in 1 trial and maybe some were not involved in all occurrences the court can make protective orders under R20b. e. INSOLIA- court not allow joinder for 3 s alleging industry-wide conspiracy b/t tobacco companies because there were so many variables no same transaction or occurrence f. Kedra is better example than Insolia because the s are logically connected- the PD is targeting one family efficiency. Insolia would be too confusing for the jury g. The key is the amount of facts and the potential for prejudice ii. Rule 19- Compulsory Joinder Of Parties a. A person whose joinder will not ruin jurisdiction shall be joined if 1. Complete relief not possible w/o them or 2. The person claims an interest and the absence may a) Impair persons ability to protect interest b) Lead to inconsistent results b. If they cant be made as party, court will determine if suit will proceedThis requires an analysis of 4 factors 1. Extent that judgment will be prejudicial 2. How much the prejudice can be lessened by protective measures 3. Whether the judgment will be adequate w/o the person
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4. Does have an adequate remedy if case dismissed iii. When joining parties there are typically 3 categories a. Proper parties- may be joined b. Necessary parties- must be joined if at all feasible c. Indispensable parties- Must be joined or suit will be dismissed iv. Essentially the reason why the case cant go forward w/o indispensable party is that the claim is contingent on their rights being settled w/ the others and the ruling is not binding if they are not there. H. Impleader i. Rule 14- 3rd party practice- refers to the right of a to bring in a new party who may be liable for s claim a. At any time after commencement, a defending party may bring in another party acting as a 3rd party . The 3rd party may assert any defenses to bring any claim arising out of the same transaction or occurrence against or . Any party may move to sever. ii. CLARK v. ASSOCIATES COMMERCIAL- can bring in a party who may be liable to so the 3rd party can be brought in b4 the claim w/ is adjudicated iii. 3rd Party Claim must be derivative of the original claim I. Interpleader i. Interpleader allows all people claiming on pot of $, like an insurance policy, to have one trial a. Policy is that it is unfair to make have multiple suits ii. Rule 22a. People who have claims against may be required to interplead if their claims are such that they may be exposed to multiple liability iii. 28 U.S.C. 1335a. District courts shall have original jurisdiction of any civil action of Interpleader of a suit of $500 or more if 1. Two or more adverse claimants, that have diversity, may claim to be entitled to one stake and 2. has deposited $ in2 court b. This applies even if s claims have no relation to each other iv. STATE FARM- insurance company can invoke Interpleader before all claims have been reduced to judgment even if the state allows direct action suits a. Since the statute says may claim to be entitled you can have one Interpleader action w/ all s b. If this were not so, the 1st one to judgment gets the $ v. Rule vs. Statutory InterpleaderDIVERSITY VENUE AMOUNT IN SERVICE CONTROVERS Y Rule B/t stakeholder Residence of $75,000 As under Rule 4 Interplead and all claimants all s, or where er events occurred, or where property is located
Civil Procedure Outline Statutory Interplead er B/t 2 or more claimants [1391a] Residence of 1 or more claimants $500
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XII.
J. Intervention i. Allows other parties to participate instead of just filing amicus ii. Rule 24- Intervention a. Anyone shall be permitted to intervene if 1. A statute gives an unconditional right to intervene 2. The party claims an interest relating to the claim and the action may impair or impede the applicants ability to protect that interest and it wasnt adequately represented b. Anyone may be permitted to intervene 1. When a statute gives a conditional right to intervene 2. When the applicants claim and the main ? have a similar ? of fact and law a) Must use balancing test to see if there will be prejudice iii. NRDC v. US NUCLEAR REGULATORY The interests of the uranium mine in a suit against the nuclear regulatory committee are sufficient to satisfy the requirements of rule 24, because the threat of loss of their interest due to an inability to participate will impair their ability to advance their interest K. Class Action suits i. Compare rule 23 w/ permissive joindera. People in a neighborhood complaining noise from a bus is too loud joinder b. SF complaining of bus pollution class action 1. Decision is binding against the whole class stare decisis and res judicata ii. 4 Barriers to Class Assignment a. There has to be enough people to make it feasible b. Has to be sufficiently common ?s of law and fact c. Named s must be typical of the class as a whole d. Class must be adequately represented by s DISCOVERY M. The promise and reality of broad discovery iii. Modern discovery rules allow for more fairness- there should be no surprises PRO CON Truth- info for your case Expense Equalizer- both sides have access to Time Consuming information Less expensive because parties dont Allowing info to other side allows them have to hire prvt sources to tailor their testimony bigger prob in crim trial Leads to settlement because if you see Leads to excess litiga because allows the others info then you have a better people to bring claim b4 they know how un of your case valid it is Not very = because it can be abused by
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party w/ more resources iv. IN RE CONVERGENT TECHNOLOGIES- one party served 1000 interrogatories and it evolved into a bitter disputea. R26 allows discovery to be used only when it is reasonably calculated to lead to evidence and should justify the burden being put on people v. Scope- may obtain discovery on a. Any matter, not privileged b. Relevant to subject matter c. Need not be admissible at trial but is reasonably calculated to lead to discovery of evidence vi. Limitations a. Claims of privilege 1. ex: against self-incrimination, attorney/client, dr/patient 2. can get discovery if person puts the matter at issue- ie if you are claiming psychological issues you can get psych records b. Confidential matters- seek protective order 1. protective order- parties agree not to disclose information outside of suit 2. if not stipulated to court can make order for good cause/flip side is motion to compel 3. Ex. trade secrets, competitor litigation- discovery from one case being used in others c. Trial preparation- see below vii. Initiation and timing L. Discovery devices i. Discovery Sequence and Tactics a. Most attorneys use the pyramid method- start broad and then go to specifics 1. R33 [interrogatories] and R34 [production of documents etc.] R32 [depositions] R26[Experts and opinions] R35[exams] R36[admissions] ii. Initial Disclosure R26 a. Initial disclosure 1. Provides for initial disclosure of insurance policies, name and address of people who might have discoverable information, evidence relating to disputed facts a) Doesnt have to be evidence that can be admitted at trial b) Lawyers felt they had to disclose too much damaging information amendments which require you to disclose all materials to support claims unless its to impeach c) District courts can opt out of initial disclosure requirements 2. Disclosure of Experts a) Must disclose id of experts b) Must include a report 3. 2nd wave of pre-trial discovery- you have 14 days to serve i. Any objections to the use of a deposition and ii. Any objection to the admissibility or your objection is waived a) Names of witnesses
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b) Designation of witnesses c) ID of each document or other exhibits b. Scope and Limits 1. Information that you are trying to get doesnt have to be admissible at trial but has to be reasonably calculated to lead to evidence 2. The court may limit time and amount of discovery 3. Protects work product and attorney-client privilege from discovery 4. Experts a) A party may depose experts b) A party can only get information from a retained expert by R35 or by a showing of exceptional circumstances c) Court requires you to pay them a fee 5. claims of privilege c. a court may make any protective order required to protect a person from annoyance, embarrassment, annoyance or undue hardship d. A party may not ask for discovery b4 pre-trial discovery conference e. Party has a duty to correct if information is incomplete or incorrect f. 14 days b4 R16 conference, parties must meet and discuss discovery and make plan iii. Document Inspection R34 iv. Interrogatories R33 v. Depositions R28,30,31,32 vi. Physical or Mental Exams R35 a. SCHLAGENHAUF- cant get discovery just because you allege something in the pleadings- there must be an actual basis for needing the exam 1. The way to get supporting information is to use other discovery processes M. Managing the scope and burden of discovery i. DAVIS v. ROSS- what items are discoverable in an action alleging mental distress and slander? a. Financial Information? 1. does not have to disclose until found liable 2. Normally this evidence is relevant but under 26c discovery can be refused if it will embarrass or annoy 3. BUT court routinely issues protective orders to let discovery but make sure information is kept hidden b. Arrangement w/ Attorney? 1. does not have to disclose if this is the only evidence and it will not lead to evidence of bias c. Names of Other Employees w/ Complaints? 1. does not have to disclose this information in a slander trial because it is not relevant to the ? of whether libeled in this case d. Psychological Exams? 1. does have to disclose because is alleging mental distress and she is putting her mental state at issue
Civil Procedure Outline 21 of 51 ii. KOZLOWSKI v. SEARS- has a duty to disclose relevant materials even if it is costly or time-consuming unless they can show sufficient cause a. This was a R34 requestb. If they had used R33- this allows the party to specify where the records are and let other party inspect c. If the burden of answering is the same on both parties- but here it was s fault that it was so cluttered N. Exemptions from discovery i. R26(b)(3)- Privileged information a. party may obtain materials prepared in anticipation of trial by or for another party or partys representative only upon showing of substantial need and the party is only able to get the substantial equivalent w/ undue hardship the court SHALL protect against disclosure of the mental impressions, conclusions, opinions or legal theories of an attorney b. Anticipation of litigation test rests on 1. When the document came into existence 2. When the trial is 3. When the attorney became involved 4. Date the suit is filed c. Does not protect information gathered as part of routine investigation d. Protects material gathered by attorney and her agents e. Protects work product = attorneys 1. Mental impressions 2. Conclusions 3. Opinions 4. Legal theories f. Policy 1. Prevent parasitism of lawyers 2. Encourages lawyers to write impressions down 3. Prevents invasion of attorneys tactics and thoughts 4. Prevents problem of attorney as witness 5. Fosters the adversarial process g. 2 ?s to ask in discovery request 1. Is the material work product? 2. Is there any other way to obtain it? ii. HICKMAN- A lawyers notes, prepared in anticipation of litigation is work product and is privileged unless there is some justification, especially if you can get the information from other means iii. UPJOHN- the answers to an in-house questionnaire prepared in anticipation of litigation are protected as work product because it provides information the attorney will need to prepare his case. Attorney client privilege goes beyond the control group and to get work product you need a strong showing of need a. There are 2 reasons for attorney-client privilege- to give accurate information to attorney and for attorney to be able to advise client b. The control group test discourages clients giving information to attorney
Civil Procedure Outline 22 of 51 iv. IN RE SHELL REFINERY- s can obtain discovery from experts that are not going to testify even if they were specially retained [and not just acting w/in the scope of their employment] but mere expense is not sufficient enough exceptional circumstances to warrant discovery XIV. SUMMARY JUDGMENT O. Introduction v. There are other motions dispose of trials- 12b6 and 12c- but these are for ?s of law a. These motions accept the pleadings as true b. If you supplement a 12b6 motion w/ other evidence the court can turn it into a Summary Judgment motion- R56 vi. R56 motion pierces the pleadings- you dont have to take them as true- you must support the motion with admissible evidence vii. You can separate multiple claims- grant SJ for one and move on with the others O. Rule 56i. Summary Judgment a. may move at any time after 20 days after commencement b. may move at any time c. SJ will be granted if there is no genuine issue as to any material fact d. Case not fully adjudicated on the motion e. Supporting and opposing affidavits must be on personal knowledge. Supporting documents can be anything that would be admissible as evidence. If a motion is made, the opposing party cant rest on the pleadings and must set forth facts. P. ADHICKES- [SC]- alleged conspiracy and moved for SJ when could not prove the police were present [which would validate the conspiracy] i. SJ may not be granted unless a can show no evidence exists- absence of fact ii. Even though the burden of proof is on at trial, no burden exists at SJ stage Q. CELOTEX- [SC] widow sued manufacturers of asbestos. Celotex move for SJ on the basis that no evidence existed that the had been exposed to their product. The court granted the motion and appeals court reversed holding that Celotex had not offered evidence to rebut i. the court can grant SJ, even if the moving party does not support its motion, as long as there is insufficient proof for the party w/ the burden of proof at trial ii. claims not to overrule Adickes because that case should not be read to mean that the burden is on the moving party to bear the burden of showing an absence of fact w/r/t an issue on which the non-moving party bears the burden of proof on at trial iii. Example of the trend to allow for more SJ XVI. PRETRIAL CONFERENCE Q. Introduction iv. The trend is to courts involvement v. THE RULEa. Court may order pretrial conference for 1. Expediting disposition
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2. Establishing early and continuous control 3. Discouraging wasteful pre-trial activities 4. Improving trial quality through preparation 5. Facilitating settlement r. After receiving 26f report, order a schedule to limit 6. Join other parties and pleadings 7. File motions 8. Complete discovery 9. Modify times and extent for disclosure 10. The dates for conferences and final conference 11. Any other matters s. The court may take action w/r/t [just about anything] t. Any final pre-trial conference shall be held as close to trial as possibleat least one attorney from each side u. After any conference under this rule, court will enter order which controls subsequent action b. If a party fails to obey an order [in bad faith] there may be sanctions vi. R16 allows for 2 types of conferences a. Scheduling and planning1. Establishing early and continuing control so that the case will not be protracted from lack of case management 2. Improving the quality of trial through preparation 3. Facilitating settlement b. Final pretrial- to formulate a trial plan, including a program to facilitate admission of evidence vii. more efficiency settling and disposal of cases viii. Benefitsa. Forces litigants to show their evidence and maybe they will get a realistic picture of their case- may lead to settlement ix. Drawbacksa. In many cases this is a waste of time- Posner R. JOSEPH OAT- court ordered each side to send a corporate representative w/ authority to settle to a pretrial conference. Oat sent a lawyer saying they would not settle and the court sanctioned under R16 i. Court finds inherent powers ii. R1 says that the purpose of FRCP is to ensure just, speedy and inexpensive determination iii. Court held that a court may order litigants, even if they are represented by counsel, to appeal in person to discuss the posture and settlement of their case iv. Court imposed sanctions for failing to comply w/ the order v. But in dicta said that there are circumstances where requiring a representative would be too onerous, complex, not valuable enough and not productive enough in proportion to the size of the case S. Civil Justice Reform Act i. Summary jury trial- non-binding and fast- and may make a party that thinks they have a big case want to settle ii. Court annexed arbitration- actual binding judgment iii. Mediation-no judgment- just tries to find an arrangement
Civil Procedure Outline 24 of 51 iv. Settlement conference- mediation conducted by the judge- can be abusive toward the unfavored party and might make the judge favor them less at trial XXII. STAGES OF TRIAL W.The Phases of Trial v. Jury selection vi. Opening Statements a. Not evidence 1. not impartial 2. if there is a statement that appears in the opening and doesnt appear in the case then jury cant use it to decide the case b. Function is to provide roadmap vii. Presentation of Evidence [Case-in-chief] a. System relies on witnesses to tell what they know provides foundation for evidence b. FRCP incline towards allowing evidence as long as probative value outweighed by other factors c. s case 1. Directa) Cant ask leading ?s 2. X-examination 3. Redirect a) Can only ask ?s based on what was presented during x d. After s case will ask for judgment as a matter of law probably denied e. Then s case f. s rebuttal 1. things that rebut s case 2. cant admit new, just have to try and impeach s case viii. Argument [closing statements] a. Limited to fair comment b. Cant offer new evidence ix. Instructions a. Judge explains legal issues to jury x. Jury Deliberation and Verdict xi. Post Trial Motions and Judgment a. Renewed judgment as a matter of law motion- JNOV- must have made a motion at the at the close of all the evidence 1. R50a) Judgment as a matter of law 1) If, after hearing a party, there is no legally sufficient basis for a reasonable jury to find for that party, the court may grant judgment as a matter of law w/r/t a claim or defense 2) Motion for judgment as a matter of law may be made at any time b4 submission to a jury b) Renewing motion for judgment as a matter of law after trial
XXIV. Y. T.
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25 of 51 1) If court not grant motion at the close of evidence, movant may request a new trial 10 days after entry of judgment c) if the renewed motion is granted the court shall also rule on the motion for a new trial d) if motion is denied the party may appeal b. Also motion for a new trial 1. R59a) Judge-made error 1) Should have declared a mistrial 2) Erroneously excluded evidence 3) Other mistakes b) Jury Misconduct 1) Juror was bribed 2) Talking about the case JUDGMENT AS A MATTER OF LAW R50- Judgment as a Matter of Law xii. Judgment as a matter of law may be entered when there is no legally sufficient evidentiary basis for a reasonable jury to find for non-moving party s burden of production i. has burden to produce evidence in support of case ii. If he does not prove enough SJ for a. Not enough evidence to get the right to go to trial iii. If he passes the threshold case jury a. They have met burden of persuasion even if judge thinks they cant meet burden of production iv. If he has so much evidence that jury couldnt possibly find the other way judgment as a matter of law a. If the party w/burden gives so much direct, uncontradicted, unimpeached, disinterested evidence no reasonable jury could find the other way All the evidence testi. Allows the judge to consider all the evidence ii. If theres a scintilla of evidence to support the case jury iii. Gives the greatest latitude to jury- they can choose to disbelieve all witnesses iv. SIMBLEST v. MAYNARD- sued for negligent driving. At trial p said he looked into intersection and was hit by firetruck w/no lights and siren. maintains there were lights and siren and witnesses. moved for SJ a. SJ was granted because Qualified favorable evidence test i. Judge considers evidence most favorable to non-moving but also balanced by evidence that directly contradicts from the other side ii. If, after considering that evidence, there can be only one reasonable conclusion judgment for moving party iii. If the a direct conflict in testimony no dv iv. Judge only looks at completely overlapping evidence, if there is some nonoverlapping evidence
Civil Procedure Outline 26 of 51 v. CHAMBERLAIN- [SC] 3 employees testified they didnt see a crash, one testified that he heard a crash and saw the trains moving together- moved for dv a. Dv granted because the only evidence for is circumstantial and was contradicted by direct testimony b. Could look at it 2 ways, 1. The court held that there should be dv if there is no credibility conflict a) s witness never saw the crash so there really is no direct evidence of crash b) Direct vs circumstantial means there is no conflict c) You can reach a verdict for rr w/o disbelieving anyone 2. The court held there should be dv if there is a case of credibility conflict a) You should grant a dv even if there is some evidence if the evidence on the other side is overwhelming W.Favorable evidence only test i. Judge considers only evidence favorable to ii. Test becomes whether the jury, if it chooses to believe the witnesses, would have sufficient evidence to find for iii. WILKERSON v. McCARTHY- [SC]- was injured when he used a board to cross a pit, alleged negligence to . argues that they put up posts to keep from using the board a. Court looked at favorable evidence because there was a direct conflict of evidence 1. If you believe one side you get one conclusion but if you believe the other you get the other conclusion 2. Judge cant resolve credibility conflicts 3. So case goes to jury b. This case is distinguishable from Chamberlain because this one says if there is no credit conflict the case goes to jury, Chamberlain held there was no conflict in a case where there was direct vs. circumstantial evidence c. X. Hypo- cow hit by train in the middle of two holes in a fence, if the cow went through one its the farmers fault; if the cow went through the other its the trains fault. Farmer sues and train moves for judgment as a matter of law i. All the evidence test- has burden of persuasion and the best a jury could find is 50/50- so cant meet burden and dv granted ii. Favorable only- no dv because the judge would decide based on non-moving partys evidence- the cow went through the hole the train co is supposed to fix no dv because there is a triable issue of fact iii. Qualified most favorable- there is an exact contradiction and no other evidence to weigh in favor of either side no dv iv. For all tests if there is any testimony that a judge thinks a reasonable jury would believe it must go to jury Y. SUMMARY!
Civil Procedure Outline 27 of 51 i. SJ should not be granted if- could a reasonable jury find in favor of the other party considering a. Only the evidence favorable to non-moving party b. Only the evidence favorable to non-moving party + disinterested, unimpeached and uncontradicted evidence favoring the moving party c. Evidence on both sides [all the evidence] XXVI. ERIE AA. ii. iii. BB. xxix. DOCTRINE General Doctrine applies only to federal cases in diversity jurisdiction Doctrine only applies if there is a conflict of laws The Erie Doctrine ERIE RR v. THOMPKINS- was injured crossing RR tracks. argues that under PA law, was a trespasser and not entitled to damages, argues under federal general law he is entitled to dam a. Overturned Swift v. Tyson which held that federal c/l applied in federal court b. Determined that state law should be used for substantive issues [includes state c/l] and federal law should be used for procedural issues c. There is no federal c/l for substantive issues- it is unconstitutional to impose what it thinks is c/l on the states d. Policy 1. Discourage forum-shopping a) Note- it only prevents vertical shopping parties are still free to choose b/t states 2. Promote equitable administration of the laws 3. Respect for state policies 4. Promote certainty e. The Doctrine-In federal diversity cases, 1. If a procedural issue is covered by a FRCP and a conflicting state law- FRCP cad run controls. This is the rule from Hanna and it holds as long as the FRCP is both Constitutional and it comports w/ the 1934 Rules Enabling Act by not enlarging, abridging or modifying a substantive right [no FRCP has failed this test] 2. If a procedural issue is not covered by FRCP and only by judgemade law, and a contrary state law exists, then use the Byrd balancing test. It weighs the federal and state interest and the extent to which the rules are outcome determinative. The court must also consider the twin aims of Erie (1) whether applying federal judge-made law would encourage forum shopping and (2) whether it would result in inequitable administration of laws Z. Other cases i. GUARANTY v. YORK- [SC] was granted SJ because S/L had run according to state law. appealed in equity and the court ruled that a court in equity could apply its own laws a. Where a state statute would bar recovery in a state court, but the federal law would not, hence it would substantially affect the outcome, the state law must be used
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28 of 51 b. Broad holding- a rule is substantive if it is outcome determinative c. Exalts =ity idea over the other policies- federal court [for the purposes of diversity jurisdiction] should be just another state court COHEN v. BENEFICIAL INDUSTRIAL [SC]- in a stockholder derivative action, stockholders which owned less than a certain % of shares were required to post bond, FRCP 23 had no requirement a. None of the R23 provisions conflicted w/ NJ state law use state law b. Probably a state interest involved and FRCP especially if the state law is not in conflict c. On the other hand it is not outcome determinative in the merits of the case RAGAN v MERCHANTS TRANSFER [SC]-in PI case state S/L had run because she filed b4 but served after, but using R3 the S/L would not have run because action commenced by filing a. Court used state law- if recovery could not be had in state court then no recovery in federal court b. After Ragan courts held that FRCP were subject to Erie test WOODS v. INTERSTATE REALTY [SC]- issue was whether court could apply door closing statute to prevent out-of-state companies from doing business in the state unless they consented to service a. State statute must be followed- using federal law would create discrimination against citizens of the state b. This would create forum shopping because a company would remove to federal court when they cant sue in state court c. But HUGE state interest BERNHARDT [SC]- ? was whether federal court could enforce arbitration clause even though under VT law the clause could be revoked at any time b4 award is made a. VT law must be used because if the federal court allows arbitration when a state court wouldnt then the outcome would depend on where the suit was brought KLAXON- [SC] a. Conflict of law rules are substantive and federal court must follow state rules BYRD-[SC]- sued for negligence in federal court. argued that was a statutory employee under state law and not allowed to sue for negligence. In SC law judge gets to make this determination but in federal court the ? goes to the jury a. Federal court should not use state law if it would undermine a large federal policy, state law should not alter the rules about the factfinding roles of the judge and jury b. Balancing test 1. Look at the purpose of the federal law or policy [federal interest] 2. Look at the purpose of the conflicting state law [state interest] 3. Determine the extent to which applying the federal as opposed to the state law would affect the outcome of the case HANNA- sued for wrongful death in federal court and served the wife. But state law requires that you serve executor, and didnt do that w/in enough time- S/L had run, argues MA law bars the suit
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ii. iii. iv.
v.
29 of 51 a. Court must use FRCP for service even if it would be outcome determinative b. Situation where there is a federal rule right on point and a contrary state rule c. The federal rule must be applied if it would abridge, enlarge or modify a substantive right BURLINGTON- [SC]- AL law requires a 10% penalty if you lose a PI claim on appeal. a. Court held the rule was inapplicable because it conflicted w/ FR of App Pro 38 which does not mandate a penalty b. The argument is that there is no conflict but court rejects- there is a conflict AL requires a penalty and FR says no penalty WALKER v. ARMCO STEEL-[SC]- filed b4 S/L and filed after. State law says that suit starts w/ service and suit would be barred. argues R3 controls in federal court a. Rule 3 does not replace a state S/L- because state S/L is substantive interest b. FRCP are assumed to be valid but if there is a state interest and it substantially affects the outcome of the action then use state law GASPERINI-[SC]- sent slides to who lost them. sued and was awarded $1500/slide. appealed and said that NY allows a judge to overturn verdict if it deviates materially from what would be reasonable compensation a. State law controlling excessive jury awards should be used b. Rules should be read w/ sensitivity to state interests Determining if a law is procedural or substantive Procedural vs Substantive a. Procedure concern efficiency, fairness, and effectiveness of judicial process, how to try a case b. Substantive involves everything else, like rights and things that would substantially effect the outcome US constitution- always applies over state law a. This includes federal laws rooted in the Constitution Federal statute- applies if ConstitutionalFRCP- almost always applies- Hanna a. Does the rule violate a substantive right under Rules Enabling Act or is it unconstitutional? 1. 28 USC 2072 [Rules Enabling Act] testa) Supreme Court has power to make procedural rules and all laws in conflict shall have no further force or effect Is the rule arguably procedural? b) BUT only applies as long as it wont enlarge, abridge or modify a substantive right 2. No FRCP has ever been found to violate a substantive right under the act b. Federal rule will trump state rule c. If the state law not conflict but merely adds on federal rule [compliments it] then use it instead Judge-made Law- does it meet the following? a. Purposes of Eerie
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b. Byrd balancing test 1. Look at the purpose of the federal law or policy [federal interest] 2. Look at the purpose of the conflicting state law [state interest] 3. Determine the extent to which applying the federal as opposed to the state law would affect the outcome of the case c. York outcome determinative test d. Dont forget Gasperini XXX. PRECLUSION OF JUDGMENTS EE. Claim Preclusion- Res Judicata vi. In General a. Merger and bar- if 2nd action is part of claim or cause of action as 1st, cant raise it again, even if not covered by first suit b. Precluded by both issues that were raised in the claim and claims that could have been used c. 3 requirements for claim preclusion 1. Same claim 2. Adjudicated on the merits 3. There is a final judgment d. These should be distinguished from stare decisis- everyone is bound by the decision but anyone can relitigate e. law of the case = sometimes in a case the same case an issue will present itself twice. If the case is remanded, do not need to relitigate unaffected claims vii. Same transaction test a. MANEGO- sued in federal court alleging conspiracy and claims were dismissed. Later brought another suit adding one and alleging anti-trust violations 1. a 2nd suit alleging anti-trust violation, after an initial suit alleging conspiracy is barred by res judicata because they arise out of the same transaction or occurence 2. since these events were part of the same transaction, res judicata bars any claims that have been adjudicated and those that could have been brought in the 1st action b. Restatement provides that 1. The claim extinguished includes all the rights of the s to remedies against the with respect to all or any part of the transaction out of which the action arose 2. What constitutes a transaction and series are to be determined pragmatically giving weight to time, space, origin, motivation and whether they form a convenient trial package viii. Same rights and wrongs test a. SMITH v. KIRKPATRICK- court held that if the 2 actions involve different rights and wrongs then the actions are not barred by res judicata b. But issue preclusion may take effect because if loses 1st suit then he might be precluded by collateral estoppel from the 2nd ix. Same Claim a. MOITIE- [SC]- sued in class action and case was dismissed. 5 appealed and it was reversed. The other 2 brought a new claim
31 of 51 collaterally in a state claim. s removed and moved to dismiss for res judicata. Court of appeals reversed saying the claim was not barred due to public policy 1. Res judicata bars relitigation an unappealed adverse judgment where other s in similar actions against common s successfully appealed the judgments against them 2. There are no exceptions to res judicata, even in equity 3. The initial suit had been adjudicated on the merits res judicata - they should have appealed x. On the merits a. RINEHART v. LOCKE- filed suit and was dismissed for failure to state a claim w/o prejudice. He made a new complaint and moved to dismiss for res judicata. 1. R41b states that except for certain listed exceptions, all dismissals are on the merits unless the court dismisses w/o prejudice 2. Any dismissal bars a 2nd suit- the only remedy is appeal b. MARESE- brought a case in state court and it was adjudicated. He then brought an anti-trust suit in federal court, which could not have been brought in state court. 1. A state court judgments preclusive effect on a federal case is governed by state law in the state of the case 2. The preclusive effect of a judgment is governed by full, faith and credit BB. Issue Preclusion- collateral estoppel i. In Generala. Applies when there is the same claim or c/a b. An issue that has been litigated and determined cant be brought again c. If a claim has been w/drawn it hasnt been litigated and determined so estoppel does not apply ii. Same Issue Litigated a. General Rule- when an issue has been actually litigated and determined by a final judgment, the litigations operates to stop another litigation w/the same parties that are in privity. The judgment is not preclusive to issues that might have been litigated and were not b. LITTLE v. BG- BG sued for negligence and won. Later he sued for personal injuries from the same accident alleging gross negligence of BG. 1. A previous court decision constitutes collateral estoppel to a subsequent action involving the same parties, issues and transaction 2. Since the first suit settled the issue of BG being negligence then the 2nd suit is barred by collateral estoppel c. BENSON & FORD- plaintiff testified and is represented by the same attorney in a case against the defendant which has many of the same witnesses. Since defendants had won the previous suit, s moved for summary judgment contending that the relevant issues were precluded from re litigation
32 of 51 1. The issue is not precluded because the s are not in privity to the original action 2. The same lawyer and witnesses cant preclude a different [even if he was a witness to the first action] from an opportunity to get a trial iii. Surplusage Exception a. There is no preclusion if the determination if the issue in the first action did not lend support to the judgment 1. POLICYa) If the court in the prior case were sure as to one of the alternative grounds and this ground by itself was enough to support the judgment than the court may not feel constrained to give rigorous consideration to the alternative grounds b) Since there are alternative grounds which could independently support the prior judgment rigorous review of an asserted error as to one ground probably would not occur b. If the prior determination was an alternative ground of decision instead of mere surplusage then it is preclusive 1. A number of courts still take a position contrary to Halpern, holding that when there are alternative holdings, each of which independently would support the judgment, issue preclusion applies to both, if the court decides a case on two grounds, each is a good estoppel c. HALPERN v. SCHWARTZ- a bankruptcy referee denied H a discharge based on intent to defraud having been found earlier, although intent was only one of 3 possible bases for the earlier decision. 1. When a prior judgment rests on 1 of 3 possible grounds it is not conclusive to discharge issues if less than all grounds are involved 2. Even if an issue was fully litigated in the prior proceeding, preclusive effect will not be given if the resolution of that issue was not necessary for the judgment 3. Since the bankruptcy referee could have held the plaintiff bankrupt with or without a finding of intent, the issue will of the intent can still be litigated d. HARDY v. JOHNS MANVILLE- s were suing s for failure to warn. s moved for estoppel based on a previous determination in their favor on the matter of a warning standard 1. Collateral estoppel cannot be applied since the previous determination had not expressly determined that failed to adequately failed to warn 2. Since the jury may have found liable on many theories, estoppel cant be used- collateral estoppel he is in appropriate where the prior judgment is ambivalent iv. Question of Law Exception
33 of 51 a. Determinations of unmixed questions of law are not preclusive in subsequent actions- only determinations of fact and the application of law to fact are preclusive b. IRS v. SUNNEN- IRS sued Sunnen and S won and was sued on the same action the next year after some favorable court decisions. S moved to dismiss for collateral estoppel. 1. Estoppel cant be used when there is a change in law 2. To allow him to get off after the law has changed would be to allow un= protection among tax payers 3. If the law changes then the issue is not the same c. US v. MOSER- [SC] when plaintiff retired as a captain he sued for the retirement pay of a rear admiral under a statute that provided that officers who would served in the Civil war would be retired with the benefits of the next higher rank. The issue was whether the statute applied to someone whose service was as a cadet at the Academy and the court decided in his favor. In a later suit the court discovered another statute, which denied him the benefits. Plaintiff sued three more times than the court relied on its original judgment. The government appealed the third suit to the Supreme Court contending that collateral estoppel should not apply to an issue of law that had been wrongly decided in the first suit. 1. The court held that although collateral estoppel should not apply to unmixed questions of law it does apply to mixed law and fact questions 2. Because the court found that the plaintiffs case involved a fact western that had been adage indicated in the first suit it held that the government was precluded by the decision in the first suit d. Problem is how to draw the line between an unmixed question of law and mixed issues of law and. When the rule of law has been determined the context of a particular said the facts, and there seems to be no reason to allow that issue to be relitigated. Modern cases and the restatement allows preclusion as to issues of law as well as fact except when 1. The result would place the party who won in a favored position in the general administration of the law as in Sunnen 2. The first determination was not fully appealed as it was in the second suit 3. The 2 actions involve claims that are substantially unrelated 4. A new determination is wanted in order to take account of an intervening change in the applicable legal context or otherwise to avoid inequitable administration of the law 5. The party against preclusion is sought had a significantly heavier burden of persuasion on the first suit than in the second v. Evidentiary Fact Exception a. Preclusion applies only to issues of ultimate fact. There is no preclusion where the issue in the second case is one of evidentiary fact.
34 of 51 b. Ultimate facts were those upon which combined occurrence the law raises the duty, or the right, in question in which the law makes the occasion for imposing sanctions c. EVERGREENS v. NUNAN- drew a distinction between ultimate facts and evidentiary facts in order to determine whether a decided issue was sufficiently important in the first action that it was foreseeable that it might be subject to subsequent litigation and therefore to preclusion vi. Mutuality a. The old rule was that a party should not benefit from it unless he could also be bound by it 1. Ex.-employee gets into an accident in boss car. Other party sued employee and lost so sued boss. Boss was not in privity so couldnt be bound by earlier judgment so the mutuality rule precluded him from using the previous judgment. BUT courts did allow this for indemnity b. Types of estoppel 1. offensive use- new wants to use collateral estoppel against a who lost the first case a) 1 and loses, then 2 and pleads collateral estoppel to use the issue in her suit 2. defensive use- new party is a seeking to stop from establishing a fact he couldnt prove in the 1st trial a) 1 and loses, then 2, 2 pleads collateral estoppel to stop from re-litigating issue c. When deciding whether the mutuality doctrine should be enforced the court will take into account 1. Whether it would be unfair to give preclusive effect to a prior determination where the party seeking preclusion got to choose the form in which to sue and the adversary against whom to bring the action. Allowing preclusion would make it possible, for example, to induce a particularly sympathetic plaintiff to bring an action in the pro-plaintiff for in order to secure a judgment that other plaintiffs could use in other forums 2. It could be unfair to allow an action to be preclusive against a party did not foresee that a second action might be brought 3. It is unfair to have a compromised verdict (one in which a jury that was split on the question of liability compromised by finding liability but awarding reduced damages) be preclusive in a later action 4. It is inefficient to apply preclusion when, by doing so, one might discourage plaintiffs from joining together the initial action d. BLONDER TONGUE-[SC] 1. court abandoned mutuality for defensive use of preclusion to a party not in the first suit to a who was a party 2. questioned whether it is tenable to afford a litigant more than one full and fair opportunity for resolution of the same issue 3. but a judge would not preclude a losing party from relitigating an issue if he could demonstrate that the 1st action failed to allow him a fair opportunity to pursue his claim
35 of 51 e. PARKLANE- [SC] s brought a class action suit against Parklane. B4 that action was brought the SEC sued them and won on essentially the same issues. s tried to use the result of the previous action 1. Although offensive use of estoppel is suspect the court will allow it in this case 2. Here the probably complete litigated the prior action and s could not have joined it 3. Offensive estoppel is allowed if there is no policy reason against if
ERIE APPROACH: Federal courts sitting in diversity must apply state substantive law under the Rules of Decision Act (1652) but may apply federal procedural law under the Rules Enabling Act (2072). RDA federal court must apply the laws of several states, except where the constitution of treaties of the federal if the US or acts of congress require Rules Enabling Act allowed the SC to prescribe by general rulespleadings and the practice and procedure in civil actions at law for the federal courts - The rules enacted must not abridge, enlarge, nor modify the substantive rights of any litigant. FIRST TEST: 3 steps: 1. is the issue arguably procedural? (for it to be procedural, the relevant law has to focus on the pleading, proof, and not on the nature of the claim) IF YES: 2. is there a definite conflict between the relevant principles of state law and federal law? (if there is only one rule of law that is applicable or no conflict between the laws then there is no Erie issue) IF YES: 3. What is the source of the federal law? A. IF IT IS FRCP: (also applies to FRAP) (Hannah applies:) Ask: 1. Does the FRCP rule apply to this issue? If yes: 2. Is the FRCP valid under REA? a. Whether the content of the rule falls within the practice and procedure definition of the REA b. Determine that the rule is not substantive under REA- it doesnt abridge or enlarge a substantive right.
Civil Procedure Outline 36 of 51 (if yes, then FRCP applies regardless of contrary state rule) With the FRCP, will not test under the Erie twin aims, will test under REA (see #1 and 2 above) B. IF IT IS CONSTITUIONAL: (Byrd is controlling): under Byrd, if there are important federal procedural issues, such as right to trial by jury under 7th Amendment, then the federal provision takes precedence C. IF IT IS CASE LAW BASED: (Guaranty Trust as modified by Hannah is controlling- look at whether it is outcome determinative in light of Eries twin aims): If the adoption of the federal procedural provision affects that outcome in that it encourages forum shopping or unequal administration of the law, then under the outcome test state law applies. Otherwise, federal law is controlling. (case law includes res judicata, and most of rules of appellate review) SECOND TEST : ERIE TWIN AIMS: (except for FRCP cases: then see REA test above) 1. discourage forum shopping 2. avoid unequal administration of the law CASES: 1. Hanna: FRCP v. State law FRCP controlling 2. Burlington: FRAP v. State law FRCP controlling 3. Stewart: Federal Statute v. State law statute controlling 4. Byrd: constitutional v. state law (7th amendment right to jury trial v. state law) constitution controlling 5. York v. Guaranty Trust: common law (case law) v. state law state law controls(outcome determinative test followed by Erie Twin Aims) 6. Gasperini: deals with substantive and procedural issues: hybrid case 1. state law for how to review (federal law allowed a shock the conscience test and allowed larger rewareds then state law (their test is to see what materially deviates from what would be reasonable compensation) court said had to use state law or people would forum shop for larger rewards (what Erie was trying to discourage) 2. procedural: (trial v. appellate distribution of decision making) 7th amendment v. state statute (Byrd) (but different outcome accommodated state interest by assigning mandate in NY statute to federal court) federal law for who reviews 7. Ragan v. Merchants transfer: FRCP Rule 3 (statute of limitations) v. state law state law is always controlling in diversity cases FEDERAL RULE OR FEDERAL STATUTE ALWAYS CONTROLS OVER STATE LAW
RULE 1 Scope and Purpose of Rules 3 Commencemen t of Action
SUBSECTIONS Rules shall be construed to secure the just, speedy and inexpensive determination of every action A civil action is commenced by filing a complaint w/the court
POLICY
Civil Procedure Outline 4 Summons
37 of 51 e. service upon individuals in US may be effected 1. pursuant to law of the state which the district is in or 2. by delivering a copy to the person or leaving a copy at their dwelling w/ some person of suitable age or discretion or by delivering a copy to an authorized agent k. 1. Service of summons is effective to get jurisdiction over a. who could be subjected to general jurisdiction in that state where district court located or b. who is a party under rule 19 or 20 or 100 miles of the place the summons is issued c. who is subject to federal Interpleader d. when authorized by statute 2. If exercise of jurisdiction is consistent w/ constitution to establish personal jurisdiction if they are not subject to general jurisdiction
PLEADINGS AND MOTIONS 7 Pleadings Allowed; Form Of Motions
a.Pleadings- there shall be complaint and answer, a reply to counterclaim, answer to cross-claim, 3rd party complaint, 3rd party answer, no other pleading allowed, except that court may order reply to an answer or 3rd party answer b.Motions and other papers- application for an order must made by motion in writing 8 General Rules f. A pleading shall set forth a Of Pleadings short and plain statement of the grounds of 1. jurisdiction, 2. relief, 3. demand for the judgment for the relief g. A party shall state in short and plain terms the defenses. If a party is w/o knowledge sufficient to form belief the party shall state = denial. Pleader shall deny each part or if they deny everything they must do so in accordance w/ r11 h. In the pleading the party shall state affirmative defenses. If a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court shall treat as if there were no mistake i. If a responsive pleading is required then failure to deny = admission j. Each averment shall be simple concise and direct. A party may plead in the alternative f. All pleadings shall be so construed as to substantial justice 9 Pleadings 9b. in all averments of fraud or mistake the
Civil Procedure Outline Special Matters circumstances must be leaded w/particularity. Malice, intent knowledge and other condition of the mind may be averred generally 10 Form Of a. each pleading shall contain a caption w/ name Pleadings of court, title of action, file # and 7a designation b. all averments or defenses should be in numbered paragraphs, each claim in separate paragraph 11 Signing a.every pleading should have attorney signature Pleadings, b.by presenting anything to the court the party is Motions, And certifying that Other Papers; 1. is not being presented for improper purpose Representation 2. claims are non-frivolous To Court; 3. allegations have evidentiary support, or are Sanctions likely to 4. denials are warranted on evidence or are reasonably based on lack of info c.if the court determines b has been violated the court may provide sanctions upon attorney, firm or party 1.how initiated A.By motion- has 21 day safe harbor B.On its own initiative court can make order 2.limited to what is needed to deter d. does not apply to discovery 12 Defenses a. When Presentedb. How Presented- every defense must be asserted in responsive And pleading. Except the following may be made by motion 1. Objectionslack of SM jurisdiction 2. lack of PJ 3. improper venue 4. When And How insufficiency of service 6. failure to state a claim upon which Presented-By relief may be granted 7. failure to join a party under r19 Pleading Or c. Motion for Judgment on the Pleadings- after the pleadings Motion-Motion have closed either party may move for judgment on the For Judgment pleadings. If they add information r56 SJ On The d. Preliminary HearingsPleadings e. Motion For More Definite Statement- if the pleading is too vague that a party cant respond the party may move for a more definite statement f. Motion To Strike- the court may strike any redundant, immaterial, impertinent, or scandalous matter on courts initiative or by motion g.Consolidation Of Defenses In One Motion- if a party makes a motion but omits a defense not in h2 that is available it is waived h.Waiver Or Preservation Of Certain Defenses1.a defense for lack of PJ, improper venue or service is waived according to G 2.a 12b6, failure to join indespensible party under 19 may be made inany pleading by 7a or by motion for judgment on the pleadings or at rial on merits
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Civil Procedure Outline 13 Counterclaim and Cross claim 3. SM jurisdiction motion may be made at any time a) Compulsory counterclaim- a pleading shall state claim if it arose in the same transaction or occurrence- use it or lose it b) Permissive counterclaim- a pleading may state as a counterclaim any claim not arising out of the same transaction or occurrence g) Cross claim against co-party- A pleading may state a cross claim that arises out of the same transaction or occurrence that is the subject of either of the original action or of a counterclaim h) Can join parties in accordance w/ 19 and 20 i) Court can order separate trials as provided in 42b A) defendant [third party plaintiff] may bring in third party who is may be liable to the third party plaintiff of for all or part of a claim [this is for defendant bringing a derivative indemnity or contribution claim]. -the defendant may also serve any claim against the plaintiffs that arising out of the transaction or occurrence that is the subject matter of the plaintiffs claim. -the plaintiff may assert any claim against the third party defendant arising out of the transaction or occurrence that is the subject manner of the plaintiffs claim against the third party plaintiff a) Amendments- a party can amend the pleading once at any time before the responsive pleading is served, if there is no responsive pleading the party can amend it within 20 days after it is served, leave the shall be freely given when justice requires b) When issues not raised by the pleadings are tried by express or implied consent it will be treated as if they had been raised in the pleadings when evidence is objected to the court may allow the pleading to be amended as long as the evidence wont prejudice the party-the court may grant a continuance c) An amendment of the pleading relates back to the date of the original pleading when 1) Relation back is permitted by the law 2) The amended pleading arose out of the same conduct, transaction, or occurrence 3) The amendment changes the party name within the time provided by 4m,
39 of 51 Economyconvenient trial package
14- 3rd Party Practice
Economy
15- Amended And Supplemental Pleadings
Civil Procedure Outline and has received notice so they will not be prejudiced or should have known that but for mistake concerning the identity of the popular party the action would have been against him a) Court may order pretrial conference for 1.Expediting disposition 2.Establishing early and continuous control 3.Discouraging wasteful pre-trial activities 4.Improving trial quality through preparation 5.Facilitating settlement b) After receiving 26f report, order a schedule to limit 1.Join other parties and pleadings 2.File motions 3.Complete discovery 4.Modify times and extent for disclosure 5.The dates for conferences and final conference 6.Any other matters c) The court may take action w/r/t [just about anything] d) Any final pre-trial conference shall be held as close to trial as possibleat least one attorney from each side e) After any conference under this rule, court will enter order which controls subsequent action F)If a party fails to obey an order [in bad faith] there may be sanctions Action should be brought in the name of the real party in interest, each party must use their own name a) A party asserting any claim may join as many claims as the party has against an opposing party- get all claims out even if they have nothing to do w/ original- judge can sever claims - A person whose joinder will not ruin jxn shall be joined if a) If complete relief not possible w/o them or b) The person claims an interest and the absence may i) Impair persons ability to protect interest ii) lead to inconsistent results c) If they cant be made as party, court will determine if suit will proceed A. Parties may join as s if they assert relief
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16 Pre-Trial Conferences; Scheduling; Management
Efficiency, economy, encouraging speedy trial and settlement
PARTIES 17 Parties and ; Capacity 18 Joinder of Claims and Remedies 19 Joinder of Parties Needed for Just Adjudication
Fairness and economy
20 Permissive
Civil Procedure Outline Joinder
41 of 51 jointly or arising out of same transaction or occurrence, s may join if claim is asserted against them j/s or arising out of same transaction or occurrence B. The court may make order to prevent party from being embarrassed, delayed etc and prevent prejudice a. Persons having claims against may be joined as s and required to interplead when their claims are such that they might be exposed to multiple liability b.Requires regular diversity jurisdiction and amount in controversy, rule 4 service a) One or more can sue as reps of a class if 1) There are so many joinder is impracticable 2) ?s of law and fact are common to the class 3) The claims of named parties are typical of class 4) The reps adequately protect the interests of the class b) An action is a class action if you have (a) and 1) Separate actions would a. Give inconsistent results or b. Impede or impair other claims 2) The has refused to act on behalf of the class 3) ?s of law and fact are similar enough, class action is best a) Party shall be permitted to intervene if 1) Statute gives unconditional right to intervene 2) Party claims interest that may impair their ability to protect the interest b) Party may be allowed to intervene if 1) Statute gives conditional right to intervene 2) Partys interest and the main action involve same ? Of law and fact Unfair to make have multiple suits
22 Interpleader
23 Class Action
24 Intervention
Fairness
DEPOSITIONS AND DISCOVERY 26 General Provisions
a) Required disclosures 1) Initial disclosure [w/o request]- a) all
Civil Procedure Outline people likely to have discoverable info to support claim unless 4 impeachment, b) copy of info relevant to disputed facts, c) computation of dam, d) any ins policy 2) (a) party shall id any person who will present expert evidence (b) there must be a report about opinions, exhibits, qualifications how much aid, publications list of other cases they have testified for (c) disclosures should be made in sequence directed by the court 3) pre-trial disclosure [other than for solely impeachable purposes (a) the name and address of people that are likely to yield discoverable information (b) designation of witnesses whose testimony will be by deposition (c) id of documents and exhibits the party has and needs 4) all disclosures under 1-3 must be filed w/court 5) parties may obtain discovery by interrogatories, depositions, requests to produce documents or entry upon land, exams, and requests for admissions b) Scope of discovery is 1) parties may get discovery on any matter, not privileged, which is relevant and reasonably calculated to lead to discovery of admissible evidence 2) court may limit # of depositions, interrogatories and length of depositions under rule 30 and # of requests under 36. Use of discovery may be limited if i. It can be found by a less burdensome way ii. the party seeking discovery has had enough opportunity to get iii. The burden outweighs the benefit 3) a party may obtain discovery of material prepared in anticipation of litigation by or for attorney or representative only upon a showing of that the party has substantial need that w/o undue hardship that they cant get the equivalent. In ordering discovery, the court shall protect against disclosure of mental impressions, opinions, conclusions and legal theories 4) Experts (a) a party may depose anyone identified as a witness for trial (b) a party may use depositions and interrogatories for any non-testifying expert only be a showing of
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Civil Procedure Outline exceptional circumstances under which it is impracticable to get the information any other way 5) Claims of Privilege- a party asserting this claim must explain why c) Court may make orders to protect from harassment, annoyance, embarrassment etc d) A party may not seek disclosure b4 parties have met as required by (f) e) A party that has made disclosure must supplement if the information is incomplete or incorrect f) Parties must meet to discuss discovery plan g) Every disclosure must be signed by an attorney constitutes certifica that it is correct as far as they know 27- Depositions a) b4 action Before Action 1) a person who wants to testify may file a Or Pending petition asking for am order to take Appeal depositions of named people 2) they shall serve the notice b) 28- People a)w/in the US- an officer authorized to administer Before Whom oaths and take testimony Depositions May Be Taken 29By written stipulation the parties may (1) provide Stipulations that depositions may be taken at any time or place Regarding before any person and (2) modify any procedures Discovery unless the modification change times already set, Procedure then needs permission of court 30- Depositions a) (1)the party may depose anyone w/o leave of Upon Oral court, and may compel a witness by Examination subpoena (2) need leave of court for more than 10 depositions, if the person has already been examined, party seeks deposition before time in 26d b) (1) party wanting deposition must give reasonable notice (2) shall state in the notice how to be taken, (3) any party may designate another method- that party will pay for expense (4) formalities (5) notice for deposition may include request for document and tangible things (6) if the notice is for a company or agency the notice shall describe the matters w/ reasonable particularity and the agency will designate one or more officers (7) the parties may stipulate to a deposition taken remotely
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Civil Procedure Outline c) examination and x-examination will proceed as permitted by FR of evidence, witness will give oath by officer and the testimony will be recorded personally or by an someone acting under an officer. Objections will be noted. d) (1) Any objection will be in a nonargumentative answer (2) the court may limit the time for a deposition. If a party is not being fair the court may impose sanctions (3) if a deposition is conducted in bad faith the court may order the officer to cease e) the party may have 30 days after being notified that the transcript is available to change it f) (1) officer will file the deposition w/the court or give it to attorney who will store and protect (2) officer shall keep notes of the deposition unless otherwise agreed and will give a copy of the transcript upon payment (3) the party taking the deposition shall give prompt notice of filing g) (1) if the requesting party fails to attend and the other party does, they must pay expenses (2) if the subpoenaed party does not attend, that party must pay fees 31- Depositions Upon Written Questions 32- Use Of Depositions In Proceedings
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33Interrogatories 34- Production
a) a deposition may be used for 1. impeachment of testimony 2. deposition of a party testifying on behalf of a company or agency may be used by adversary for any purpose 3. the deposition may be used for any purpose if the witness is A. dead B. >100 mi from court C. the witness is unable to testify D. the party has been unable to subphoena E. for any exceptional reasons 4. if only part is used, the other side may require that more is introduced for fairness b) objection may be made to receiving deposition which would exclude the testimony of a present witness a) only allowed to serve 25 include subparts
Civil Procedure Outline Of Documents And Things And Entry Upon Land For Inspection And Other Purposes 35- Physical And Mental Examinations Of Persons 36- Requests For Admissions 37- Failure To Make Or Cooperation In Discovery TRIALS 41 Dismissal of actions JUDGMENTS 50- Judgment a) as a matter of law and Motion for new trial
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55- Default
56- Summary Judgment
Judgment as a matter of law 1. If, after hearing a party, there is no legally sufficient basis for a reasonable jury to find for that party, the court may grant judgment as a matter of law w/r/t a claim or defense 2.Motion for judgment as a matter of law may be made at any time b4 submission to a jury b) Renewing motion for judgment as a matter of law after trial- If court not grant motion at the close of evidence, movant may request a new trial 10 days after entry of judgment c) if the renewed motion is granted the court shall also rule on the motion for a new trial d) if motion is denied the party may appeal a)Default will be entered if a party has failed to plead or otherwise defend by the rules b)Judgment can be entered as follows 1.By the clerk if it is for a sum certain or a sum which can be calculated 2.By the court- in all other cases, but judge can investigate [ie a mini-hearing] c)An entry of default may be set aside for good cause a) may move at any time after 20 days after commencement b)may move at any time c)SJ will be granted if there is no genuine issue as to any material fact
Civil Procedure Outline d)Case not fully adjudicated on the motion e)Supporting and opposing affidavits must be on personal knowledge. Supporting documents can be anything that would be admissible as evidence. If a motion is made, the opposing party cant rest on the pleadings and must set forth facts. b. a new trial may be granted for any reason for which new trials have been granted c. motion shall be filed no later than 10 days after entry of judgment d. when a motion for new trial based on affidavits opposing party has 10 days to file their affadavits e. no later than 10 days after entry the court may move for a new trial
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59- New trials
STATUTES 1331 Federal Question 1332 Diversity Jurisdiction
1367 Supplemental Jurisdiction
The district courts have original jdxn of all laws arising under the Constitution and the Laws of the U.S. a) the district courts shall have jurisdiction where amount in controversy exceeds $75,000 and is b/t 1) citizens of different states 2) citizens of a state and citizens of a foreign state 3)citizens of different states and in which foreigners are also parties b) a foreign state as and ctizen of a state or of different states c) If the sum is made in good faith and recovers less than $75,000 court may deny and impose costs d) For diversity jurisdiction corp is a citizen of principle place of business and where incorporated, the executor of an estate is a citizen of the same state as dead person a) The federal court shall have supplemental Judicial jurisdiction over any claims that are so related to economy and the original that they form part of the same case efficiency b) In a diversity case the court not have jurisdiction over claims made by people joined by under 14, 19, 20 or 24 or over claims by people proposing to be s under 19 or 24 if this would break diversity c) The court may decline supplemental if (1) claim raises a complex issue of state law (2) state claim substantially predominates (3) the district court dismisses federal claims (4) any other compelling reason d) S/l is tolled while claim is pending and for 30 days after dismissed unless state has longer time
Civil Procedure Outline 28 USC 1335 Same as Rule but for $500 or more, minimal Statutory diversity jurisdiction [diversity b/t one claimant] and Interpleader nationwide service of process. 1391 Venue a) diversity action may be brought (1) in any district where any resides, if all reside in same place (2) district where substantial parts of act occurred (3) or a district where any is subject to PJb) federal ? action may be brought in (1) in any district where any resides, if all reside in same place (2) district where substantial parts of act occurred (3) or a district where any is found c) a corp shall be deemed to reside in any district where it is subject to PJ For the convenience of an witness and parties, in 1404 Change the interest of justice, a court may transfer any civil of Venue action to any other district where it might have been brought 1441 Removal a) any civil action may be removed to federal court by or s b) removable only if none of the parties are removing to where is a citizen of that state c) if there is a separate and independent federal ? claim, the entire case may be removed or may remand any issues where state law predominates
47 of 51 Unfair to make have multiple suits Fairness to
Civil Procedure Outline DECISION TO SUE arising out of the
48 of 51 SM Jxn- 1331- the district courts have jurisdiction of all civil actions Constitution and the laws of the US 1332- if there is complete diversity on both sides and over $75000 1367- the federal court shall have supplemental jurisdiction over any claims that are so related to the original that they form part of the same case PJ-Forum- 1. is the long arm statute Constitutional? 2. Is there
minimum contacts? 3. Is the exercise of PJ fair? 1391 Venue- diversity action may be brought (1) in any district where any resides, if all reside in same place (2) district where substantial parts of act occurred (3) or a district where any is subject to PJ- federal ? action may be brought in (1) in any district where any resides, if all reside in same place (2) district where substantial parts of act occurred (3) or a district where any is found R3- Civil action starts w/filing R4- (K) service of summons is effective to establish PJ if the exercise Constitution and laws (m)120 days after filing complaint or case will R5-Service and Filing R7- pleading are claim, any answer, counterclaim, cross-claim, 3rd R8- pleading should have short and plain statement (b) pleading shall and if there is not enough information then it will state that (c) pleading shall state affirmative defense (d) if not deny an averment it is admitted (f) all pleadings shall be construed as to do substantial justice R9- Pleading Special matters- (b) fraud must be pleaded w/particularity R10- Must conform to the form of pleadings R11- (a) everything must be signed by an attorney (b) signing shows that there is no improper purpose and done in good faith (c) provides for sanctions. If by motion by other side you have 21 days to w/draw complaint 1404-change of venue R7-12 has 20 days after R13- (a) compulsory counterclaim (b) permissive counterclaim (G) cross-claim] must being served be in answer- (F) if counterclaim left out by mistake, excusable neglect, oversight or inadvertence pleader may counterclaim by amendment party has 20 days R14- (a) may bring in 3rd party [derivative] at any time after action commences, dont after being served need leave to obtain service if adds 3rd party
S isTconsistent w/the A S be dismisses R T U T H I I E T party claim N G contain defenses
Civil Procedure Outline 49 of 51 w/in 10 days of answering- if later to answer cross-claim than 10 days, must obtain leave on motion for notice R15- a party may amend the partys pleading at any time b4 a responsive pleading is served, or if there is no responsive pleading permitted, the party may amend w/in 20 days after that party has A already served it- can also be given leave of court . a party shall N plead in response to amended pleading w/in 10 days of being served or w/in original time remaining for response S R55- (a) when party has failed to plead or otherwise defend clerk W shall enter default R56- has 20 days from commencement of action to move for SJ E 1446- Removal- must file w/in 30 days of receipt of initial R pleading through service or otherwise Make motions to dismiss- defenses must be made in pleading except these which can be made by motion, lack of SMJ, PJ, improper venue, insufficiency of service, failure to state claim [if outside stuff attached R56], failure to join. Motion for more def statement- if motion granted and not fixed w/in 10 days of order, court may strike or may do whatever is just Motion to strike- upon motion w/in 20 days after service of pleading or on its initiative, court may strike material from pleading
Motion for Judgment on Pleadings 12c- after pleadings have closed, but not delay trial, any party may move, if matters outside pleadings are attached R56
Motions for Joinder [19 and 20], Certification for Class Action [23], Intervention[24], Interpleader[22], usually made b4 or during discovery
D I S C O V E R Y
R26- Meeting- at least14 days b4 R16 conference No discovery until parties have met and conferred under f Initial Disclosure- shall be made at or w/in 10 days of discovery meeting, must submit written report to court w/in 10 days of meeting R16- Pre-trial conference- w/in 90 days of appearance by and w/in 120 days after service of complaint
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Expert Disclosures-90 days before trial or w/in 30 days of disclosure by other party if evidence is intended solely to contradict R56- SJ- may move at any time, motion shall be served at least 10 days b4 SJ hearing Pre-trial Disclosure- at least 30 days b4 trial Final Pre-trial Conference- as close to trial as possible
T R I A L
R50- Judgment as a matter of law- if after evidence there is no legally sufficient basis for a reasonable jury to find for that party
J U D G M E N T
R50- renewed motion for judgment as a matter of law [JNOV] no later than 10 days after judgment R59- motion for new trial- 10 days after judgment entered to file for motion and file affidavits
TA Civil RN Procedure Outline IS CHECKLIST AW I. II. LE R
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is there SM Jurisdiction? Is there PJ? 1. SJ? a. Is there min contacts so it is foreseeable they would be haled into court? b. Is it reasonable to exercise PJ in this case? 2. GJ? a. Substantial and continuous contact to make it fair to litigate there even though the suit did not arise out of the contact with that forum? III. Motions that can be filed 1. Pre-Answer 2. Motion for judgment on the pleadings 3. Rule 11 4. SJ 5. Judgment as a matter of law IV. Is there a preclusive effect? 1. claim preclusion? Res judicata 1. Same claim 2. Adjudicated on the merits a. There is a final judgment 2. issue preclusion? Collateral estoppel a. General Rule- when an issue has been actually litigated and determined by a final judgment, the litigations operates to stop another litigation w/the same parties that are in privity. The judgment is not preclusive to issues that might have been litigated and were not b. Exceptions c. Mutuality V. Whose law do you choose?

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Civil Procedure Outline 1 of 51 I. SUBJECT MATTER JURISDICTION A. Overview i. Unlike personal jurisdiction SM a. Can be raised at any time b.

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ii. iii. iv.

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RULE 1 Scope and Purpose of Rules 3 Commencemen t of Action

Civil Procedure Outline 4 Summons

PLEADINGS AND MOTIONS 7 Pleadings Allowed; Form Of Motions

39 of 51 Economyconvenient trial package

14- 3rd Party Practice

15- Amended And Supplemental Pleadings

16 Pre-Trial Conferences; Scheduling; Management

Efficiency, economy, encouraging speedy trial and settlement

Fairness and economy

Civil Procedure Outline Joinder

DEPOSITIONS AND DISCOVERY 26 General Provisions

a) Required disclosures 1) Initial disclosure [w/o request]- a) all

33Interrogatories 34- Production

56- Summary Judgment

59- New trials

STATUTES 1331 Federal Question 1332 Diversity Jurisdiction

1367 Supplemental Jurisdiction

47 of 51 Unfair to make have multiple suits Fairness to

Civil Procedure Outline DECISION TO SUE arising out of the

S isTconsistent w/the A S be dismisses R T U T H I I E T party claim N G contain defenses

Civil Procedure Outline

TA Civil RN Procedure Outline IS CHECKLIST AW I. II. LE R

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