Civil Procedure II Outline

I. Discovery

A) Discovery: The pre-trial devices that can be used by a party to obtain

facts and information about this case in order to assist the party’s
preparation for trial.

1) Depositions: FRCP 30 & 31 - a pre-trial device by which one

party asks oral or written questions of the other party or of a
witness for the other party, conducted under oath outside the
courtroom. Limited to one day of 7 hours and a maximum of
depositions unless otherwise granted by leave of court or
stipulation of the parties. Affidavits singed under perjury, based
on personal knowledge. Must be competent.

Use at trial or a hearing: FRCP 32

a) To impeach the testimony of the deponent as a witness

b) If the deponent is greater than 100 miles from the place
of trial
c) Unable to testify because of age, sickness, death,
incapacitation, etc.
b&c = unavailability

2) Interrogatories: FRCP 33 - a set or series of written questions

drawn up for the purpose of being submitted to a party to obtain
information regarding the case. Limited in number to 25 unless
otherwise granted by leave of the court or stipulation of the
parties. Affidavits signed under perjury, based on personal
knowledge. Must be competent.

a) Interrogatories cannot be directed to non-

parties.
b) A party must answer the interrogatories according to
the best of the whole party’s knowledge not just one
person being deposed.

3) Protective Orders: FRCP 26(c) - any order of a court whose

purpose is to protect a person from further harassment by a
party seeking information. To protect a party or person from
annoyance, embarrassment, oppression, or undue burden
 or expense. The producing party is the one that requests a
protective order from the requesting party. Protective orders are
filed with the court.

Three requirements:
a) A motion
b) A certification that the parties have attempted to
confer in good faith
c) Good cause or reason to protect the information
request

• The courts have broad discretion to balance the

interests of the parties when discovery is in dispute and
they have substantial latitude to fashion protective
orders. (Marrese v. American Academy of Orthopedic
Surgeons)

4) Production of documents and things: FRCP 34

a) Requests to produce things in a parties custody or

control that are relevant to the pending action
b) A party may be required to permit entry onto their
land for relevant testing / inspection.

5) Physical and Mental Examinations FRCP 35

a) A party must show, on motion, the conditions are in

controversy (a claim or a defense) and good cause for
the need of an examination before one will be allowed by
the court. Without good cause, a court cannot allow an
examination. (Schlagenhauf v. Holder )

b) The party seeking the examination must provide the other

party with a copy of the written report of the examiner
setting out the examiner’s findings.

6) Requests to Admit FRCP 36

a) Definition: A party may serve on any other party a written

request for admission as to the truth or genuineness of any
matter or document described in the request which the
party must admit or deny.
 b) Requests for admission are deemed admitted unless
responded to within 30 days. The adverse party can file
written objections to those requests that they have a legal
basis for not answering.

7) Subpoenas FRCP 45

a) Definition: A court order directed to a non-party who may

be a witness or who may have information about the case
requesting them to produce information or testify

Device Rule Definition Limits

Oral/Written 30/31 Oral or written Only 10 allowed
Depositions testimony of a without leave of court
specific witness. If it or stipulation of
is a party, only parties
notice is required. If
non-party a 1 day of 7 hours,
subpoena is unless leave granted
important but not or the parties agree
required. otherwise
Affidavit.

Interrogatories (only 33 Written question Only 25 allowed

parties) requests submitted without leave of court
by one party to – leave usually freely
another party. given
Affidavit.

Document production 34 A party may request No limit in number.

requests or requests another party to: A party is required to
for evidence, or entry Produce any produce them in the
on land from adverse document or order kept by the
party information in its party in the ordinary
custody, possession, course of business, or
or control; or permit direct party to the
entry, upon notice, matter requested by
for inspection & the adverse party.
surveying (subject to
scope).

Physical & Mental 35 Examinations of a A party must show

Examinations witness the conditions are in
controversy and good
cause for the
 examination.

Requests for 36 Statements No limit in number

admission from propounded by one
adverse party (only party requesting
parties) another party to
admit or deny
Subpoena (duces 45 A writ commanding a None
tecum) person to appear or
provide evidence

B) Rule/Scope of Discovery: FRCP 26

1) Mandatory Disclosures: Rule 26(a)

a) A party must, without awaiting a discovery request,

provide to other parties:

i. The name, address, and telephone number of

each individual likely to have discoverable
information that the disclosing party may use to
support its claims or defenses;
ii. A copy or a description of all documents,
electronically stored information, and tangible things
in the possession of the party and that the disclosing
party may use to support its claims or defenses;
iii. A computation of any category of damages
claimed by the disclosing party, making available for
inspection and copying as under FRCP 34 the
documents or other evidentiary material, not
privileged or protected from disclosure, on which
such computation is based, including materials
bearing on the nature and extent of injuries suffered;
and
iv. Any insurance agreement under which any
person carrying on an insurance business may be
liable to satisfy part or all of a judgment which may
be entered in the action or to indemnify or reimburse
for payments made to satisfy the judgment.

b) Must be made at or within 14 days after the pre-discovery

conference (timing may be stipulated differently by court
or agreement of the parties)
 2) Discovery Scope and Limits: FRCP 26(b)

a) FRCP 26(b)(1)

A party may seek discovery of any relevant, unprivileged

information if it is reasonably calculated to lead to the
discovery of admissible evidence.

• Inadmissible information is discoverable if it

is relevant to the subject matter of the case (the
broad scope of discovery).

• If there is dispute, the information is

discoverable if it will lead to discovery of admissible
evidence. (Lindberger v. General Motors Corp.)

b) FRCP 26(b)(4): Experts

a. A party may depose any

person who has been identified as an expert whose
opinions may be presented at trial

b. A party may depose facts

known or opinions held by an expert who has been
retained in anticipation of litigation who is not
expected to be called as a witness at trial upon a
showing of exceptional circumstances where it is
impracticable for the party seeking discovery to
obtain facts or opinions on same subject by other
means.

3) Time Line of Discovery: Rule 26(d)

a) Discovery begins after pleadings have been filed, and after

a pre-discovery conference under 26(f) has been held,
unless there is an agreement between the parties

b) Methods for discovery can be used in any order unless,

upon a motion the court orders otherwise, for convenience
of the parties and witnesses and in the interest of justice

4) Duty to Supplement: Rule 26(e)

 a) “A party is under a duty to supplement if the party learns
that in some material respect the information disclosed is
incomplete or incorrect and if the additional or
corrective information has not otherwise been made
known to the other parties during the discovery process
or in writing.”

b) Once a party has information, a party is under a duty to

supplement missing or incorrect information. If in a later
response a producing party submits information that was
missing or incorrect, they do not have to amend incorrect
responses. This must be done within a reasonable time as
soon as it is discovered.

5) Planning for Discovery: FRCP 26(f)

a) The conference must be held as soon as practicable and

at least 21 days before a scheduling conference under
16(b) is held to discuss…

1. Nature and basis of their claims and defense

2. Discuss prompt resolution or settlement of the case
3. To arrange for 26(a) disclosures, and
4. To develop proposed discovery plan

6) Signing of Disclosures: FRCP 26(g)

a) Every disclosure shall be signed by at least one attorney

of record and whose address shall be stated. An
unrepresented party shall sign the disclosure and state
the party’s address. It is a certification that to the best of
the signer’s knowledge, the disclosure is complete and
correct at the time it is made.

b) Every discovery request, response or objection made by a

party represented by an attorney shall be signed by at
least one attorney of record and whose address shall be
stated. An unrepresented party shall sign the request,
response or objection and state the party’s address. It is
a certification that to the best of the signer’s knowledge,
the request, response or objection is:
 i. Warranted on existing law or a good faith
argument for the extension, modification or reversal
of existing law;
ii. Not posed for any improper purpose, such as to
harass, cause unnecessary delay, or increase in the
cost of litigation
iii. Not unreasonable or unduly burdensome or
expensive, given the needs of the case, the
discovery already made, the amount in controversy,
and the issues of importance at stake

c) If a certification is made without substantial justification

in violation of the rule, reasonable attorney’s fees may be
imposed.

C) Early Discovery: FRCP 27

A person may, by deposition, perpetuate her own testimony or that of

another in regard to any matter that may be cognizable in a U.S court
by filing a verified petition and serving a copy of the petition and notice
for an order for pre-action discovery on each person named as an
adverse witness at least 20 days before the hearing.

Must show:
1) Expects to be a party to the action but is unable to
bring the action at this time
2) Shows the subject matter of the action and the
petitioners interest in it
3) Facts that the petitioner plans to perpetuate
4) Names or description of adverse parties and
addresses as far as are known
5) Names and addressees of the persons to be
examined or substance of examination

D) Sanctions for Discovery: FRCP 37

1) Motion to Compel – If a party fails to provide discovery or

provides incomplete discovery, the other party may move to
compel discovery.

Requirements:

a) Motion – can be oral or written to a magistrate who then

sends a recommendation to the district court judge who
decides the motion
 b) Certification (may be oral) that the parties have met and
tried to resolve the discovery dispute.
c) Good cause

Why not produce information?

Not relevant
Sensitive information
Privileged
Subject to attorney work product
Prepared in anticipation of litigation

2) Sanctions – Issued for failure to comply with an order,

failure to disclose mandatory disclosures, failure to participate
actively in a discovery plan, and for the spoliation of evidence.

The court may:

a) Order matters to be treated as admitted

b) Prohibit any party from supporting or opposing any
designated claims or defenses
c) Strike pleadings, stay or dismiss the action, or give a
default judgment
d) Hold the party or witness in contempt
e) Assess reasonable expenses incurred because of
refusal to comply, including attorney’s fees

• More sanctions are given under Rule 37

because it gives parties more opportunity to bring up
sanctions for failure to comply with the courts orders
or discovery motions.

E) Limitations to Discovery

1) Attorney-Client Privilege - privileged Information is not

discoverable if it meets the elements below:

Elements:

a) The holder of the privilege must be a

client or seeking to be a client
b) The other party must be a member of
a bar, or acting as other persons’ attorney
c) The communication must relate to a
fact of which the attorney was informed by the client
 outside the presence of strangers for the purpose of
securing an opinion on the law, legal services, or
assistance in a legal proceeding.
d) The client must claim the privilege
and must not have waived it.

 Attorney client privilege information is

guarded through protective orders, but attorney’s are
required to produce a privilege log stating there are
documents that respond to the requests of the adverse
party, but they are privileged [FRCP 26(b)(5)].

• The privilege only applies to

communications between a client and an attorney
who is acting in his professional capacity. (Upjohn v.
U.S.)

• The communicated information

must have been intended to be confidential and
others must not be present when it occurs.
(Hickman v. Taylor)

2) Attorney Work Product (privileged info) Prepared in

anticipation of litigation
2 types
1. Absolute
The mental impressions of attorneys are
absolutely privileged, such as strategy.
Example: memo in file, depositions.
2. Qualified/Conditional
The mental impressions of a consultant (experts
–2 types, consultant (either in their head or a
written report fall within conditional work
product) and designated trial expert) retained by the
attorney.

Requesting party can obtain attorney work product only if:

 (Conditional upon)
a) demonstrate a substantial need for the information, and
b) undue hardship to acquire the substantial equivalent of
the information by other means

3) In Anticipation of Litigation – governed by Rule 26(b)(3) -

material prepared in preparation for litigation is protected but
not privileged; attorney work product is privileged.

Protected information is discoverable on a case by case basis

only if:

a) There is a substantial need to obtain the

information, and
b) The information cannot be obtained except by
undue hardship

• The court shall protect against the disclosures of

mental impressions, conclusions, opinions, or legal
theories of an attorney or other representative of a
party concerning the litigation
• Non testifying expert’s reports fall under attorney
work product.

3 types of Witnesses
1. Lay witnesses (both take depos)
2. Expert Consultants - employed by a party or
retained to assist the hiring lawyer to assess the
technical aspects of a case. May consult multiple
consultants.
(substantial need/undue hardship)
3. Experts who have been designated to testify at
trial, resulting in the waiver of conditional work
product protection.
(both take depos)

II. Case Management

A) Pre-trial Conferences:
FRCP 16

1) Definition: A
meeting between the attorneys and the judge, for purposes of
 planning trial, facilitating settlement, or other reasons to
preserve judicial economy.

2) Rule: A judge is
required to hold only one pre-trial conference, but has broad
discretion to hold as many as necessary. Within 120 days of the
filing of the complaint, judges must issue a scheduling order
limiting time for motions, discovery, and other matters. Parties
must stick to the scheduling order of the court unless they confer
to change it. A court may sanction a party for not complying with
pre-trial orders.

III. Dispositive Motions

A) Summary Judgment: FRCP

56
(used for all 8 (c) affirmative defenses – including statute of
limitations/most common)(adding/injecting new information)

1) Definition: A dispositive pre-trial motion which, if granted,

adjudicates the case on the merits. Inferences are favored to the
non-moving party. Can negate the other parties claim.

2) Rule: Summary judgment may be granted if there is no

genuine issue of material fact and the moving party is
entitled to judgment as a matter of law. (Lundeen v. Cordner)

a) Genuine = An issue is genuine if there is conflicting

evidence that could demonstrate that the parties have a
dispute as to that particular issue and the evidence is
such that a reasonable jury could return a verdict
for the non-moving party. The evidence must be
objectively factual and not inferences drawn from
motive, intent, or feelings. (Cross v. U.S.)
b) Material = A fact is material if the fact would have an
impact on jury deliberations and the outcome of the trial.
c) Fact = must be a fact and not opinion or an inference of
motive (Cross v. U.S.)
i. The judgment is all based on the state of the
evidence.
ii. All inferences of fact are viewed in a light most
favorable to the non-moving party!
 3) The burden for proving summary judgment is shifting. It begins
with the moving party to prove there is no genuine issue of
material fact, then shifts to the non-moving party to prove there
is a genuine issue of material fact. (Celotex Corp. v. Catrett)
4) Celotex Corp. v. Catrett – Once the movant shows evidence
there is no genuine issue of material fact, the burden of proof
shifts to the non-moving party to show evidence there is a
genuine issue of material fact. The movant need not show any
evidence besides pleadings (no affidavits needed), but the non-
movant must produce evidence countering movant’s pleadings.
Catrett failed to produce evidence proving the element of
causation (her burden of production)

-Affidavits – should conflict (double check this info)37:38 prob. 2

recording
- When not in conflict court will grant summary judgment.

*****************add info on beacon and right to jury trial*************

Motion Rule Standard When Inferences Effect if
Granted
Dismiss (only 12(b) Failure to state a Filed before the Allegations of Dismisses
available to (6) claim answer / complaint are Complaint
defendants!) responsive true usually without
pleading prejudice /
occasionally
with prejudice
Summary 56 Judgment as a matter 20 days after Judge Judgment on
Judgment of law and there is no complaint served / construes facts the merits or
(either party genuine issue of cutoff for in light most on that cause
can file) material fact dispositive favorable to of action is
motions per 26(f) non-moving entered –
Conference. party. however,
partial
summary
judgment is
available.
Voluntary 41(a) Only for Plaintiff and Any time before N/A 1st time
Dismissal it is voluntary defendant answers Dismissed w/
or by stipulation out prejudice,
2nd time it’s an
adjudication on
the merits
Involuntary 41(b) Defendant moves Anytime the N/A Adjudication on
Dismissal for Failure to plaintiff fails to the merits.
prosecute take action, fails to
follow an order,
fails to appear, or
fails to comply
with the Rules.
Default 55 Brought by the Clerk Brought by the Notice period Operates as a
Judgment or Plaintiff when Clerk or Plaintiff of 3 days…to final judgment
defendant fails to when defendant give defendant and plaintiff
appear or otherwise fails to plead or his day in court gets paid. May
defend (a default may otherwise defend be set aside if
be obtained after an “good cause”
answer) is shown
through
affidavits.
Judgment on 12(c) Defendant has an After the pleadings Allegations Judgment on
the Pleadings absolute legal from both the merits
(not used defense; or court has pleadings are
often) plaintiff no subject matter taken as true
or Defendant jurisdiction
may move

IV. Trial by Jury – (FRCP 38, 48)

A) Right to a Jury Trial

 1) The 7th Amendment preserves the right to a jury trial in federal
courts where the amount in controversy exceeds $20 and is also
given under FRCP 38(a).

2) Trial by jury is not contingent upon the words in the pleading. If

the cause of action involves money damage (equitable) it is
sufficient to submit the case to trial by jury.

3) All administrative agencies or courts created by Congress are

not given the right to trial by jury unless written into the rules. If
the court is created under the Constitution then a trial by jury is
granted.

B) Requirements: FRCP 38

A party who wishes to have a trial by jury must:

1) Make a demand in writing within 10 days of the final pleading

and must be indorsed
2) Must serve the demand on all parties
3) The right to jury trial is waived if a demand is not timely made

C) Trial by Jury or the Court: FRCP 39

Decisions Judge Jury

Issues Of Law / Of Fact

Interpretatio
n 2

1
Remedies In Equity At Law /
Money
Damages

4 3

1) By Jury:
 When trial by jury has been demanded the trial of all issues so
demanded shall be by jury, unless:

a) the parties or their attorneys, by written stipulation

filed with the court or by an oral stipulation made in open
court and entered in the record, consent to trial by the
court without a jury, or

b) The court upon motion or of its own initiative finds

that a right of trial by jury does not exist under the
Constitution or statutes of the United States.

2) By the Court:

Issues not demanded for trial by jury shall be tried by the court;
but, notwithstanding the failure of a party to demand a jury in an
action in which such a demand might have been made of right,
the court in its discretion upon motion may order a trial by a jury
of any or all issues.

D) Jury Size and Composition: FRCP 48

1) The court shall seat a jury of not fewer than six and not
more than twelve members and all jurors shall participate in
the verdict unless excused from service by the court. Unless the
parties otherwise stipulate, the verdict shall be unanimous and
no verdict shall be taken from a jury reduced in size to fewer
than six members.

2) Steps to Jury Trial:

a) Jury Summons
b) Jury pool
c) 12 people from the pool are selected and impaneled
d) Voir dire (vwar dear) is then conducted to make sure the
people selected can be an impartial fact finder

3) Voir Dire: The process by which a jury is selected. (vwar

dear)

Two standards for dismissing jurors:

 a) For cause – unlimited in number, but on the basis of
the jurors partiality. Ensure the juror is not biased.

b) Peremptory challenges – limited in number and no

reason needs to be stated. 2 suspect classes Can’t use
gender or ethnicity for basis in a peremptory challenge.
Race & Gender.

(if you’ve lost on a for cause dismissal, use the peremptory challenge or else you
lose it)

E) Demand for Judgments: FRCP 54:

A judgment by default shall not be different in kind from or exceed in

amount that prayed for in the demand for judgment. Except as to a
party against whom a judgment is entered by default, every final
judgment shall grant the relief to which the party in whose favor it is
rendered is entitled, even if the party has not demanded such relief in
the party's pleadings.

F) Jury Instructions

1) Definition: Instructions by a judge to a jury

concerning the law of the case.
a) Both parties recommend instructions to the judge,
then the judge formulates the appropriate instructions.
(Kennedy v. Southern California Edison) Look at Harmless
Error.
b) Instructions come from an applicable prior case or
statute
c) It is rare for parties to agree on all jury instructions.

judge has an obligation to frame the jury instructions properly

V. Verdicts: FRCP 49

A) A verdict is an advisory decision – not a final judgment.

Three Types:

1) General Verdict - A general finding of liability

without articulating why. Plaintiff wins ‘x’ money.
 2) Special Verdict - The jury answers a list of
interrogatories, submitted by the judge, requesting the jury to
make specific findings of fact. The court then takes the findings
of fact and applies them to the law. Then, the ultimate verdict is
entered by the court. Special Verdicts trump General verdicts.

3) General Verdict with Special Interrogatories - A

yes/no answer by the jury with questions to the jury to articulate
why they found the way they did.

a) Nollenberger – Just because the general

verdict was inconsistent with the special interrogatories
does not mean the court can intervene and calculate its
own verdict because there were other things the jury could
have considered that they weren’t asked.

b) Huckle v. Kimble – The jury must tie the

verdict to the evidence

c) Roberts v. Ross – When a case is tried

without a jury, the court must come to a verdict through
findings of fact and conclusions of law on its own.

B) Judgment: Rule 58 - regardless of whether judgment is

entered, 150 days after a verdict judgment is considered valid.

VI. Judgment as a Matter of Law

(directed verdict) (JMOL)

A) Definition: A dispositive motion brought after trial has begun

and before the case is submitted to the jury. A verdict entered by the
court against a party who fails to establish a prima facie case to meet
the burden of proof. Use to attack the opponent.

B) Rule: A judge may grant JMOL if there is no legally sufficient

basis for a reasonable jury to find in favor of the non-moving party.
However, judges will be very hesitant to take a case from the jury.
Insufficiency of evidence. Jury cannot make decisions based on
speculation. Juries can make decisions based on:

1. facts and
2. reasonable inferences.
 VII. Renewal of Judgment as a Matter
of Law (n.o.v.)(motion for judgment):

A) Definition: A dispositive motion filed by a party after their

motion for JMOL has been denied and within 10 days after judgment is
entered.

B) Rule: A RJMOL is granted by a court if, after the case goes to

jury, the judge finds there is no legally sufficient basis for a reasonable
jury to have found in favor of the non-moving party. Jury - facts and
reasonable inferences.

C) Remedies:
1) The entry of judgment, or
2) Granting of a new trial.
3) A judge can order a special verdict or special
interrogatories between a JMOL and a RJMOL.

D) Standards:
1) Galloway v. U.S. – Galloway failed to meet his burden of
production and thus, a directed verdict was proper. Juries cannot
make large inferential leaps in evidence.
2) Denman v. Spain – Denman failed to meet her burden of
production. Judgment notwithstanding the verdict is proper
when the plaintiff has failed to meet their burden of production.
3) Daniel J. Hartwig Associates, Inc. v. Kanner – see case

Harmless Error vs. Prejudicial Error

1) Jury instruction is wrong – Error has to be prejudicial
- Preponderance of evidence, more probable than not
that the error caused the jury to make the decision it
did. Misworded statement of substantive law.
- Usually will get a new trial.
- Prejudicial Error will allow for a new trial.
2) Every trial will have errors. – Harmless.
- jury would still have found as it did either way.
FRCP 64 – State Provisional Remedies.
- provisional remedies are available to the courts
where the court is, to the extent that the state
remedies are not inconsistent with any other federal
rule or statute.
- security attachment, prevent D from transferring
property.
Purpose of provisional remedies = to preserve status quo
pending the outcome of litigation.
- Legal Remedy = damages

1) Attachment  if you can’t find me, then you can attach in a state
court.
2) Preliminary Injunction/temporary restraining order  to prevent
a defendant from doing something. Or to make them do something.
Don’t have a jury, but there is a judge to give injunction. The pitch –
“irreparable damage” to Plaintiff. As long as harm to Defendant is not
outweighed by Plaintiff’s judgment.
3) Difference between Prelim injunctions VS. a TRO is time. TRO comes
almost immediately.
4) Receivership  an expert in the area to keep an organization afloat
while owners are at conflict. Preserve the property in the same manner
that the owner or possessor would be bound.
5) Lis Pendens  to cloud the title. Allows P to protect herself against
the transfer of contested property – prospective purchases are advised
of the ongoing litigation.

Supplementary Proceedings
- Post-trial deposition
- within a certain days, D will be asked certain
questions about where the property is, if any has
been transferred, before, during or after the trial.
Dispositiv Rul Standard When Inferences Effect if
e Motions e Granted
in Trial or
Post Trial.
Judgment as a 50(a) No legally sufficient Usually filed by a D, N/A Judgment
Matter of Law basis for a reasonable at the close of P’s The judge Entered.
(JMOL) jury to find in favor of evidence. P can file basically weighs
(Directed the non-moving party. if D has a counter- the evidence, Can also
Verdict) claim. Anytime because the P have a partial
before case is has already JMOL
submitted to the presented their
jury. case. The judge
can delay ruling
on JMOL until the
end of the D’s
case.

So one sided
that a
reasonable jury
can only find in
favor of the
moving party -
the judge can
take the case
away from the
jury
Renewed 50(b) Same standard after After a 50(a) motion N/A Judgment
Judgment as a party loses original and up until 10 days Entered, or
Matter of Law motion. after entry New Trial
(RJMOL) judgment. A 50(a) Granted.
(JNOV) must be filed first.
Renewed 50(b) filed after.
Motion for must have filed a
Judgment 50 (a) pre-motion
trial before 50(b).
New Trial 59 For any reason Can be filed as soon Wide Latitude New Trial
previously granted in as the trial starts – and Discretion Granted (not
the court, or if there is when reversible Given to the often
no harmless error. error occurs. Court. appealable)

Reversible, Filed within 10 days

discretionary, but not after trial
harmless error,

VIII. Relief From Judgment

A) Rule 60
 1) Rule: Upon motion, a court may relieve a party or a party’s legal
representative from a final judgment, order, or proceeding for
the following reasons:

2) Filed: Filed after the judgment is entered and is generally

provided for procedural error

B) 60(b)(1): Excusable Neglect

Four part test: (Briones v. Riviera Hotel & Casino)

1) Prejudice to Opposing Parties

2) Length of delay and its impact
3) Reason for delay
4) Good faith

C) 60(b)(2): Newly discovered evidence

1) Rule: A motion for relief from judgment on grounds

of newly discovered evidence must meet the following
requirements before it can be granted (all are required): The
new evidence will probably change the result on a new trial;
a) Must have been discovered since the trial;
b) Must not have been discoverable before trial by due
diligence;
c) Must be material;
d) Must not be merely cumulative or impeaching.
e) Must relate to facts in existence at the time of the
trial (Patrick v. Sedwick)

D) 60(b)(3): Fraud, Misrepresentation, or Misconduct of

Adverse Party (perjury)

1) Extrinsic fraud - prevents a party from making a

claim or defense to further the case (i.e. inducing a party not to
file a claim until the statute of limitations has run)

2) Intrinsic fraud - occurs during the trial process

itself.
• Both extrinsic and intrinsic fraud are covered by the rule
if motion is filed within 1 year of judgment – this includes
perjury.

E) 60(b)(4): Void Judgment

 1) A void judgment (i.e. no SMJ). Must be at the time the
judgment was entered)

F) 60(b)(5): Judgment satisfied, vacated, remanded, etc.

G) 60(b)(6): Discretion of the court “catch all provision”

Rule Grounds When Made Who Makes It

60(a) Correction of Clerical Error Anytime Judge / Motion of

Party

60(b)(1) Mistake, Inadvertence, Within 1 year of Party Moves

Surprise, or Excusable judgment
Neglect.

60(b)(2) Newly Discovered Evidence Within 1 year of Party Moves

Judgment – not
trial
60(b)(3) Fraud (Smith), Within 1 year of Party Moves
Misrepresentation, Other Judgment
Misconduct
60(b)(4) A void judgment (no SMJ – Within a Party Moves
must be at the time the reasonable time
judgment was entered)
60(b)(5) Judgment either satisfied, or Within a Party Moves
judgment has been vacated, reasonable time
modified, remanded, or
another case reverses
judgment.
60(b)(6) Discretion of the Court for Within a Party Moves
any other reason – “catch all” reasonable time

Judge must article his

reasons for entering
judgment

IX. Appeals
A) Appeals Generally:
 1) Due process enables a litigant to appeal – to ensure
justice and fairness.

B) Final Decision Rule:

1) Authority - Appellate courts are courts of limited

jurisdiction. They obtain their authority from Congress by way of
28 USC §1291.

2) Rule: Pursuant to §1291, an aggrieved party may

appeal as of right a final decision of a trial court if:

a) An error appears in the trial court record,

b) Prompt objection was made by the party seeking
appeal,
c) No harmless error (error must affect substantial
rights of aggrieved party), and
d) The brief must contain the error with evidentiary
support from the trial court proceedings.

3) Purpose of the Final Decision Rule: (FRCP 1 =

judicial economy)
a) To prevent piecemeal litigation
b) To prevent the same issue from being decided at the
same time and having different results.
c) Because trial courts usually decide things correctly –
they must be given great deference.

C) Exceptions to the Final Decision Rule

1) Multiple Claims or Parties: FRCP 54(b)

a) Rule: If there is more than one claim at issue, or

multiple parties and a district court decides only some of
them with finality (less than all claims/merits), an appeal is
available once the judge certifies there is no just reason
to delay judgment (it wouldn’t be fair to delay appeal)
and that the decision is final.

i. Liberty Mutual Insurance Co. v. Wetzel – when a

case is bifurcated to determine liability and
damages, but there is only one claim (a single
cause of action), the decision as to one issue is not a
final decision about the case and 56(b) does not
 apply. Furthermore, the ignoring of the injunction
cannot be appealed under 1291(a)(1). Also, the
judge did not certify an appeal under 1292(b).
§1291 – Court of Appeals has jurisdiction of appeals
from all final decisions (less than all claims/merits)
of the district courts.

ii. Sears, Roebuck & Co. v. Mackey – The court’s

dismissal of the antitrust claim satisfies as an
appealable final decision because other claims
were pending that were not tied to the
antitrust claim and there is no just reason for
delaying the appeal.

iii. Cold Metal Process Co. v. United Engineering &

Foundry Co. – When a claim and counterclaim exist
and the court decides the initial claim without
deciding the counterclaim, an appeal of a the initial
claim is proper if the claims are severable and there
is no just reason for delaying appeal. Rules and
supreme ct. hasn’t provided rules for what is “final”

iv. Curtis – Wright v. G.E. – Partial summary judgment

is a final decision under 54(b). ???? Partial summary
judgment – when there is a partial summary
judgment, if it is on the issue of liability then an
appeal is unavailable.

2) Collateral Orders (parallel to the merits)

a) Definition: A collateral order is any order that does

not stop the litigation if the order is appealed because it is
not tied to the merits of the case; it runs parallel to the
merits. Too important to be denied immediate review. 28
USC §1291

b) Rule: A litigant may effectively appeal an order of

the court if:

i. The district courts action was concluded and final

ii. There is no step toward final disposition of the

merits, and
 iii. It is effectively unreviewable upon final judgment.

• If the rights are not considered now

they will be lost permanently

vocabulary – interlocutory appeal; made during the

progress of a legal action and not final or definitive.

c) Cases

i. Cohen v. Beneficial Industrial Loan Corp. –

An appellate court may review an order only if the
order finally resolves the issue in question,
determines an issue completely separate from the
merits of the action, and the order is effectively
unreviewable on final judgment (the order would
have already done damage to the parties). This is “a
practical construction of the final judgment rule.”

ii. Coopers & Lybrand v. Livesay – The death

knell doctrine (a decertification of a class
preventing financial backing to continue the suit)
does not give appellate jurisdiction for review of the
decertification. The collateral order exception
does not apply because: the judge could recertify
the class action later (not dispositive); the
certification was much enmeshed in the litigation;
and the decertification is reviewable on final
judgment (no inflict damage to the parties). Under
1292(b), there can be no appeal because the
appellant has the burden of proving that the

3) Writs of Mandamus – 28 USC § 1651(a) (a remedy not

an appeal)

a) Definition: A direction to the court below to take an

action or refrain from taking an action. A writ is a remedy
sought from the appellate court upon motion by any party.

b) Rule: Writs can only be used under extreme

conditions of abuse of judicial discretion; clearly
erroneous.

c) Cases
 i. La Buy v. Howes Leather Co.
ii. Schlagenhauf v. Holder – A writ is
appropriate for use as a substitute for appeal if:
there is a usurpation of judicial power, or a clear
abuse of discretion.
iii. In Re Cement Antitrust Litigation – There
are 5 factors a court must look to in determining
whether to issue a writ of mandamus for review.
(See p.1083)

1. No other adequate means to attain relief

2. Damage or prejudice to the petitioner
that is not correctable on appeal
3. Is the district courts order clearly
erroneous as a matter of law?
4. Is the district courts error an oft repeated
error or manifest disregard for the FRCP?
5. Does the district courts order raise new
and important problems of first impression?

4) Interlocutory Appeals

a) Definition: An order during a proceeding which is

not final and does not ultimately resolve the dispute. An
interlocutory appeal is an appeal interrupting the merits, or
flow, of the case before the case is finalized. Anything prior
to final judgment.

b) Unavailable for discovery orders

c) Rule: The courts of appeals shall have jurisdictions

over orders of district courts concerning injunctions:
Pursuant to 28 USC §1292(a)(1), if a district court deals
with a preliminary injunction in any way, the court’s
decision may be appealed as of right.

d) Rule: Pursuant to 28 USC §1292(b), any

interlocutory order may be appealed (permissive or
discretionary appeal) upon certification of the district
judge that there is: (elements):
a) a controlling question of law (must be a
controlling central issue of the case – a big deal)
b) for which there is substantial ground for
difference of opinion, and (ex. 2 district courts having
 decided a case differently, and 3rd court looks at
those difference of opinions and therefore there is a
substantial difference)
c) an appeal may materially advance the ultimate
termination of the litigation or in other words,
materially advance ultimate disposition.

D) Timing Rules of Appeals - FRAP 4

1) Notice of an appeal as of right must be filed

within 30 days after entry of judgment
2) When the U.S. is a party, notice must be filed
within 60 days
3) The notice must be filed within the time period
or appeal is waived.
4) The district court can extend the time for
appeal by 30 days if excusable neglect is shown (good faith)
5) Parties cannot agree to extend the time for
appeal on their own

a) U.S. v. F&M Schaefer Brewing – A judgment

must include all necessary elements in order to begin
the time for a timely notice of appeal.

b) Electrical Fittings Corp. v. Thomas & Betts

Co. – A winning party may not appeal findings he thinks
erroneous unless the finding will improperly bind him in
future litigation. (preclusive effect)

c) Corcoran v. City of Chicago – state appellate

courts may review error of fact issues in which the jury’s
verdict is against the manifest weight of the evidence.

d) Orivis v. Higgins – An appellate court is most

likely to reverse a bench verdict when it is based on
factual evidence that is entirely in writing. Only in the
most unusual circumstances may an appellate court
reverse based on oral factual evidence.

Type of Rule Type of Certificat Time Standard

Order Review ion
required
by Trial
Ct./App.
 Ct.
Final §1291 Appeal as of No/No 30/60 Final judgment must
Judgment right days be entered under Rule
58 and only execution
remains;
Aggrieved party, no
harmless error, must
appear in trial court
record, and timely
Interlocutor §1292(b) Discretionary Yes/ Yes 10 days - Controlling question
y Appeal (discretion of law.(must be a big
of Appellate deal based on the
court) facts of the case)
- Substantial grounds
for difference of
opinion.
- The appeal may
materially advance
the termination of the
litigation.
Multiple R. 54(b) Appeal as of Yes/No 30/60 - No just reason for
Claims or right days delay
Parties - Judgment is final
Collateral §1291 Appeal as of No/No 30/60 - Finally resolves the
Orders right days issue
- Not (a disposition) on
the merits
- Effectively
unreviewable
Preliminary §1292(a) Appeal as of No/No 30/60 - Granting, modifying,
Injunction (1) right days dissolving an
(not final; if it injunction.
was a
permanent
injunc. Then
appeal could
be taken
under §
1291)
Mandamus §1651 Direct petition No/Yes - Extraordinary relief
to a higher
court for
direction to
lower court
(remedy)
If it’s appealable then the appellate court has proper SMJ.

What role does trial court jurisdiction have to do what with federal court jurisdiction? none.

Once the case is over to all issues and parties – can appeal
When it’s not all over, then go for the 54b.

Bases for Appealable SMJ:

1. Multiple claims 54b
2. Collateral Order
3. Contempt
4. Class Action

E) Supreme Court Review / Jurisdiction: is not a trial court. But

does have the power to be a trial court when there is a dispute
between two states.

Intermediate appellate court – certiorari, a request for the supreme

court to hear the case.

1) Original Jurisdiction: 28 USC § 1251; The Supreme Court can hear

cases between two or more states; ambassadors; b/n the United
States and a State; b/n the state as a P and other citizens; b/n
ambassadors.

2) Direct Appeals to the Supreme Court: 28 USC 1253:available

when a district court of three judges decides the merits of a case

3) Final Judgments or Decrees of validity of a treaty or state

constitution by the highest court in the state; validity of
state statute questioned b/c Unconstitutional or repugnant; or
questions of the Constitution, US treaties, or US statutes are set
up in the question

4) Certiorari - seeks a specific remedy – certification or a question

of the court of appeals from which instructions are desired by the
courts of appeals; discretionary; granted when it’s a question of
gravity and general importance or to secure uniformity among
the court of appeals
Source of Rule/Statu Parties Type of Outcomes
Case te Review
Original §1251 2 or more states Full
suing each adjudication
other, State
suing citizens of
another state,
U.S. v. States.
Direct §1253 Any litigants
Appeal from
Dist. court
of 3 judges
Certiorari §1254 Any litigants Review on a If cert is
from court grand scale for granted, Sup.
of appeals the Ct. hears case.
betterment of If cert is
society denied, review
is denied.
Certification §1254 Any litigants Instructions to Sup. Ct. either
by court of lower court gives
appeals instruction or
takes the case.
Final §1257 Any litigants Review by Sup. Ct.
Judgments Certiorari decides
of State validity of fed.
High Courts Statutes,
treaties, or
Constitution.

X. Preclusive Effects of Former

Adjudication
• Preclusion is the doctrine of Res
Judicata – the broad term means both issue and claim preclusion.
Res Judicata  Can not split your claim/cause of action.

A) Claim Preclusion is synonymous with true res judicata.

(pleading: affirmative defense)(raise it or waive it)(doesn’t apply when
there are different claims)

1) Rule: Three things must exist to raise claim

preclusion as a defense:
a) There must be a judgment is final, valid and on the
merits; (judgment is final 30 days after the judgment is
entered in federal court)
 b) The parties in both suits must be identical or in privity
with one another;
 Privity = legal relationship between parties
c) The second action must involve claims properly
considered in the first action in that the second action
must arise from the same transaction or occurrence of the
first action.
 Dicta has no preclusive effect.

2) Waiver - One may waive the preclusive

effects of res judicata. It is an affirmative defense and it must
be raised in a timely manner. Courts do not raise preclusion
on their own.

a) Litigants get only “one bite at the apple”.

b) One cannot argue an issue one way the 1st time, then
argue the same issue differently a 2nd time.
c) The first judgment has preclusive effect even though
another action was filed first.

3) Cases:

a) Rush v. City of Maple Heights – If a single

tort gives rise to more than one cause of action, all causes
of actions must be tried in the same single lawsuit.

b) Matthews v. New York Racing Association

– A second lawsuit between the same parties, or their
privies, involving the same transaction or occurrence are
barred even though the second action involves more
theories of liability.

c) Jones v. Morris Plan Bank – Because the

bank should have sought the full price of the car in the
initial breach of contract action and it didn’t, it is precluded
from defending the conversion action by Jones. The same
evidence would have supported both contract causes of
action – thus it was only one claim. Thus, Jones is entitled
to summary judgment in the conversion action.

d) Mitchell v. Federal Intermediate Credit

Bank – Mitchell was required to bring a counter-claim in
the first action in order to recover the remaining funds
from the potato crop. Because he didn’t, he is precluded
from bringing an affirmative action against the bank.
 Compulsory counter-claims must be brought in the initial
action.

e) Linderman Machine Co. v. Hillenbrand Co.

– Hillenbrand’s defense against Linderman was not
conclusive as to an affirmative right or cause of action
against Linderman in a subsequent action and Hillenbrand
was not required to counterclaim in the first action. This
case is totally contradictory to Mitchell but jurisdictions
define claims (transactions or occurrences) differently.

B) Issue Preclusion is synonymous with collateral

estoppel. (pleading: affirmative defense)

1) Rule: When an issue of fact has been litigated

and determined by a final judgment, it cannot be re-litigated. In
order for an issue to be precluded:
a) A judgment must be final, valid, and on the
merits;
b) The issue must be identical in both suits;
(seeking preclusion construe it very broadly)(different
parties)
c) The issue must have been actually litigated,
necessary to the judgment, and decided by the court, and
Necessarily decided.(sort of the same thing)
 Traditionally, the parties are the same, or in
privity, in both cases.
 Today the parties do not have to be identical –
non-mutual collateral estoppel
 can’t assert against a stranger.

Elements:
1. Identical Issues (narrow)
2. Actually Litigated
3. Necessarily decided (not as important as first 2)
2) Cases:

a) Rios v. Davis - A finding of fact which is not

material or essential to the judgment of a suit between two
parties is not binding on the parties in a later suit. Thus,
the previous court’s finding that Rios was negligent was
not essential to the judgment against Davis and Davis
cannot preclude Rios from suing. Also, Rios couldn’t
appeal the finding of negligence because he won the prior
 suit. Furthermore, Rios was not a party or in privity to the
first suit.

b) Housing Authority for La Salle County v.

YMCA of Ottawa – In a default judgment, issue preclusion
cannot apply because the issues in the case were not
actually litigated. However, claim preclusion will apply
after a default judgment because the defaulting party had
the full and fair opportunity to be heard. Thus, the
judgment is final, valid, binding, and preclusive.

c) Holmberg v. State, Division of Risk

Management – Alaska was not precluded by the PERB
finding that Holmberg should be granted permanent
disability because PERS and Alaska are not in privity and
were not represented in the PERS action. Furthermore, the
first decision by AWCB should preclude the decision by
PERB because it was decided first!

XI. Persons Bound by Former

Adjudication
A) Non-Mutual Collateral Estoppel:
The parties are NEVER the same (only one party is the same), but the
issue is ALWAYS the same. (pleading: affirmative defense)

1) Rule: In order for non-mutual collateral

estoppel to apply there must be a judgment that is final, valid,
and on the merits about an identical issue that has been actually
litigated and was necessary to the judgment in a prior lawsuit.
a) Judgment – must be final, valid, and on the
merits; (judgment is final when judgment is granted unless
there’s an appeal)(judgment is final 30 days after the
judgment is entered in federal court.)
b) Issue – must be actually litigated, necessary to
the judgment, and decided; and
c) The issue must be IDENTICAL.
• However, collateral estoppel MUST be claimed, or it
is waived.

2) Factors - The Supreme Court has held in

Parklane Hosiery Co. v. Shore, that pursuant to due process,
a court may only allow non-mutual issue preclusion after
determining:
 a) Whether the plaintiff could have joined
the first action;
b) Whether the defendant had incentive to
litigate vigorously in the first action;
c) Whether there could be inconsistent
judgments if another trial is allowed; and
d) Whether any procedural opportunities
available in the second action were denied the defendant
in the first action (Martin v. Wilks) (jury, etc.).

Wait and See Plaintiff – waiting to see what happens.

B) Defensive Non-Mutual Collateral

Estoppel: A litigant, not a party to the first action, claims collateral
estoppel against a plaintiff trying to sue on the same issue that was
lost in a previous action (using as a shield from being re-litigated)

1) Estopped party must have had a full and fair opportunity to

litigate that issue

2) Can be asserted in the claim and then a motion for summary

judgment or a motion on the pleadings

3) Think of offensive or defensive estoppel based on the position of

the new party (D = defensive, P = offensive)

a) Bernhard v. Bank of America National

Trust & Savings Ass’n – The issue of whether the funds
in Cooks account were really his was already litigated by
Bernhard. Thus, Bernhard cannot litigate the issue again
just by bringing another action against a different
defendant.

b) Blonder-Tongue Laboratories, Inc. v.

University of Illinois Foundation – The University was
precluded from litigating the validity of the patent a
second time because it had a full and fair opportunity to
litigate the first time – even though Blonder-Tongue is a
new defendant.

C) Offensive Non-Mutual Collateral

Estoppel: A litigant, not a party to the first action, claims collateral
estoppel against a defendant who is trying to defend on the same
issue the previously defended. (using collateral estoppel as a sword
against the losing party)
 1) Estopped party must have had a full and fair
opportunity to litigate that issue

2) Can be asserted in the claim and then a motion

for summary judgment or a motion on the pleadings

a) In Re Multidistrict Civil Actions Involving

The Air Crash Near Dayton Ohio – Humphreys was
precluded from litigating Tann’s liability even though
Humphreys was not a party to the first action in which
Tann was not found liable to the passengers. This is
because the attorneys for TWA and Downey were highly
competent and thus all the issues were already litigated.
However, the Appellate Court reversed this decision
because Humphreys would be denied due process – they
didn’t have their day in court.

b) Martin v. Wilks – There is no such thing as

compulsory intervention. Thus, just because the white
firefighters knew of the action by the black firefighters,
they didn’t have to intervene. Also, consent decrees are
not final judgments, on the merits, and valid; consent
decrees do not litigate specific issues. Thus, the white
firefighters are not precluded from bringing the action
against the city.

Test: is it res judicata, collateral estoppel, both or neither?

XII. Alternative Dispute Resolution

Common Forms of ADR:

A) Negotiation - Two parties by

themselves or through their attorneys working out a dispute.

B) Mediation - The use of a neutral third

party who doesn’t actually make decisions but points out ways to
dissolve the dispute, and then the parties resolve their own dispute.
Useful when there is mutual bargaining power.

C) Arbitration - Very similar to litigation.

The parties usually consent to arbitration in a contract.

Binding arbitration.
 Two Types:
1) Final Offer Arbitration: Both sides
put together their idea of a fair outcome.
2) One Way Arbitration:

Exam Review:

Pre-judgment Appellate Review

Merits Collateral Order level 1(either or)

(54b)

1292 (b) (3 elements) level 2

Writ Route level 3