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Civ Pro I Outline (version 03 Dec 09)

I. Due Process
A. The Due Process Clauses (found in the Fifth Amendment and the Fourteenth Amendment) of the United
States Constitution
1. Deny effect to adjudications unless the parties to be bound were given prior notice and an
opportunity to participate.

2. Notice that satisfies due process may be found from proper service of process or other
recognized alternatives.
a) Process usually consists of a summons directing defendant to respond or appear in court on
penalty of default.
b) Service is the formal means by which process is delivered to a defendant.

II. Pleadings
A. Complaint
1. FRCP 8(a): claim for relief
a) FRCP 8(a)(1)
(i) “Short and plain statement of the grounds for the court’s jurisdiction.”
b) FRCP 8(a)(2)
(i) “Statement of the claim showing that the pleader is entitled to relief.”
c) FRCP 8(a)(3)
(i) “Demand for relief sought.”

2. Formal sufficiency of the complaint

a) “That which gives notice.”
b) Short and plain statement of the facts.
c) Claim showing the pleader is entitled to relief.

3. Substantive sufficiency of the complaint

a) “Alleges behavior by [D] that is a legal violation for which the plaintiff is afforded a remedy.”
– p. 37
b) Conley v. Gibson (pg. 35)
(i) Negro employees brought suit against Union alleging that it failed to fairly
represent them under the Railway Labor Act.
(ii) Rule: Complaints are required to “give *D+ fair notice of what *P’s+ claim is and the
grounds upon which it rests.” – p. 55
(iii) Rule: “No set of facts” test; “In appraising the sufficiency of a complaint… the
accepted rule that a complaint should not be dismissed for failure to state a claim
unless it appears beyond a doubt that [P] can prove no set of facts in support of his
claim which would entitle him to relief” (cannot dismiss a complaint that passes
the “no set of facts” test). – p. 36

c) Swierkiewicz v. Sorema (pg. 39)

(i) P filed employment discrimination suit against employer.
(ii) Rule: “an employment discrimination complaint need not include *facts
establishing a discrimination case as in McDonnell Douglas Corp v. Green] and
instead must contain only ‘a short and plain statement of the claim showing that
the pleader is entitled to relief.’” – p.39

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d) Bell Atlantic v. Twombly (pg. 45)
(i) P (Twombly representing class of consumers) alleges §1 Sherman Act conspiracy
among major telecom providers.
(ii) Overruled the substantive sufficiency test of Conley.
(iii) Rule: “Flexible plausibility standard”; “*N+eed at the pleading stage for allegations
plausibly suggesting (not merely consistent with) [illegal conduct] reflects the
threshold requirement of Rule 8(a) that the ‘plain statement’ posses enough heft
to ‘show that the pleader is entitled to relief.” – p. 49

e) Ashcroft v. Iqbal (suppl pg. 15)

(i) P allegedly mistreated in maximum security detention facility; claims he was
deprived of his constitutional rights by policies promulgated by Ashcroft &
Mueller; D moved to dismiss the complaint for failure to state sufficient allegations
to show D’s unconstitutional conduct.
(ii) “Twombly retired the Conley no-set-of-facts test… called for a ‘flexible plausibility
standard,’ which obligates the pleader to amplify a claim with some factual
allegations in those contexts where such amplification is needed to render a claim
plausible.’” – p. 16 (suppl.)
(iii) Rule: “To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ A
claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inferences that [D] is liable for the misconduct
alleged.” – p. 17 (suppl.)

f) Erickson v. Pardus (pg. 56)

(i) Prisoner, appearing pro se; prison MD took P off HCV drugs for 18 mos. “because
the prisoner misused medical equipment”; P alleged this caused him harm, etc.
(ii) Rule: “A document filed pro se is to be ‘liberally construed,’ and ‘a pro se
complaint, however inartfully pleaded, must be held to less stringent standards
than formal pleadings drafted by lawyers.’” – p. 56

4. Pleading special matters (FRCP 9)

a) FRCP 9(b): Fraud or mistake
(i) Heightened pleading requirement
(ii) “*P+arty must state with particularity the circumstances constituting fraud or

B. Service of process (FRCP 4)

1. First principles:
a) “*S+ociety’s interests are best met when parties have the opportunity to make arguments
and introduce evidence on their own behalf.” i.e., “opportunity to be heard” – p. 59
b) “*D+efendant’s opportunity to be heard is meaningless unless *D+ receives notice of the
case.” – pg. 59

2. Procedure for Service of Process

a) FRCP 4 sets forth the methods for effectuating service in federal trials.
(i) Specific procedures are outlined for various parties:
 individuals,
 infants and incompetents,
 corporations and associations,
 foreign, federal, state and local governments,
 individuals in foreign countries.

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b) In federal actions, a plaintiff may serve process upon an individual, corporation or
association by:
(i) delivering the summons and complaint to the individual personally;
(ii) leaving the summons and complaint at the individual's dwelling house or usual
place of abode with a person of suitable age and discretion then residing therein;
(iii) delivering the summons and complaint to an agent authorized by appointment or
by law to receive service of process.

c) “In order for *P’s+ service to be effective, it must meet four distinct requirements:” *pg. 59+
(i) “Notice must be provided in the manner prescribed in a court rule of statute”;
(ii) “Notice must be provided in a way that comports with due process”;
(iii) “Jurisdiction over [D] must be asserted in a manner authorized by statute or court
(iv) “Jurisdiction over *D+ must be authorized by the due process clause.”

3. FRCP 4(a): Summons

a) When P files the complaint, the court issues a summons (“an order telling *D+ to respond to
the complaint”).
b) P must serve (“provide”) the summons with the complaint.
c) US Constitution Due Process Clause requires that a court both
(i) Provide adequate notice, and
(ii) Have personal jurisdiction over D

4. Waiver of service of process

a) FRCP 4(d): Waiving Service (suppl pp.44 – 5)
(i) FRCP 4(d)(1) creates a duty to “avoid unnecessary expenses of serving the
summons.” – E&E, p. 18

b) FRCP 4(d)(2) provides incentives for a defendant to agree to waive formal service and
instead accept service by mail.
(i) Upon notice of the commencement of the action and a request for waiver of
service from the plaintiff, a defendant who so agrees is granted an extended time
within which to answer – 60 days instead of the 20 days granted when process is
formally served.

(ii) Failure to accept process by mail subjects the defendant to liability for costs of
service as well as attorney’s fees incurred in any motion to collect the costs of
 FRCP 4(d)(2)(B): the court must impose the costs of service on D who
refuses to waive service without good cause. – E&E, p. 18

(iii) FRCP 4(d)(3): if D waives service, D gets 60 days (as opposed to 20 days) to

5. Alternative Service of Process

a) Rio Properties, Inc. v. Rio International Interlink (RII) (pg. 60)
(i) Rio sued RII for trademark infringement and sought to enjoin RII from using the
name, “Rio.”
(ii) Rio attempted to locate RII in the US for service of process.
 Rio attempted to serve process via RII’s courier and a Los Angeles attorney,
both refused to accept service on behalf of RII.
 Rio filed an emergency motion for alternative service of process under
FRCP 4(f)(3).

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(iii) Rule 4(f)(3) “permits service in a place not within any judicial district of the United
States ‘by… means not prohibited by international agreement as may be directed
by the court.’” – p. 62, cf. FRCP 4(f)(3)

(iv) Rule: “Rule 4(f)(3) is an equal means of effecting service of process under *FRCP+.”
– p. 63
 “Service under Rule 4(f)(3) must be (1) directed by the court; and (2) not
prohibited by international agreement.”
 “*C+ourt-directed service under Rule 4(f)(3) is as favored as service
available under Rule 4(f)(1) or Rule 4(f)(2).” – pg. 62
 “[I]n cases of ‘urgency,’ Rule 4(f)(3) may allow the district court to order a
‘special method of service,’ even if other methods of service remain
incomplete or unattempted.” – pg. 62

(v) Rule: “Even if facially permitted by Rule 4(f)(3), a method of service of process
must also comport with constitutional notions of due process. To meet this
requirement, the method of service crafted by the district court must be
‘reasonably calculated, under all the circumstances, to apprise interested parties
of the pendency of the action and afford them an opportunity to present their
objections.” – p. 63

C. Defendant’s Response
1. “FRCP 12(a)-(b),-(e), and –(f) indicate two permissible options:” – p. 67
a) File an Answer (an answer is a pleading – see FRCP 7(a))
b) “File a Motion in lieu of an answer.” (a motion is not a pleading – see FRCP 7(b))

2. Answer
a) FRCP 8(b)(1) imposes two requirements on an answer:
(i) Short and plain statement of defenses to each claim [FRCP 8(b)(1)(A)]
(ii) Admit or deny each allegation by opposing party [FRCP 8(b)(1)(B)]

b) FRCP 8(b)(5): lacking knowledge or information

(i) “A party that lacks knowledge or information sufficient to form a belief about the
truth of an allegation must so state, and the statement has the effect of a denial.”
– FRCP 8(b)(5); p. 70 (suppl.)

c) FRCP 8(b)(6): failure to deny an allegation

(i) “An allegation… is admitted if a responsive pleading is required and the allegation
is not denied.” – FRCP 8(b)(6); p. 70 (suppl.)
(ii) “If a responsive pleading is not required, an allegation is considered denied or
avoided.” – FRCP 8(b)(6); p. 70 (suppl.)

d) King Vision Pay Per View v. J.C. Dimitri’s Restaurant (pg. 71)
(i) Rule: Rule 8(b) “identifies only three alternatives as available for use in an answer
to the allegations of a complaint: to admit those allegations, to deny them or to
state a disclaimer.” – p. 72
(ii) It is unacceptable to demand “strict proof”; defective pleadings such as this will be
held to be admitted per FRCP 8(b)(1)(B).

e) FRCP 8(c): Affirmative Defenses → avoid liability

(i) Carter v. United States (pg. 75)
 P filed suit for medical malpractice; D failed to mention a statutory damage
award cap in its answer.

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 Rule: “The failure to plead an affirmative defense in the answer works a
forfeiture only if *P+ is harmed by *D’s+ delay in asserting it.” – p. 75

(ii) Defenses
 Besides denials, an answer should contain “in short and plain terms” other
defenses to each claim in the complaint. [FRCP 8(b)]

 FRCP 8(c) lists the affirmative defenses that must be pleaded in the
answer in order to raise them at trial (suppl pg. 70 – 1), including:
 statute of limitations.
 illegality.
 fraud.
 contributory negligence.
 accord and satisfaction.
 arbitration and award.
 assumption of risk.
 discharge in bankruptcy.
 duress.

 Other defenses such as lack of jurisdiction, improper venue, insufficient

service of process, or failure to state a claim upon which relief may be
granted, may be asserted in either the answer or a FRCP 12(b) motion to

f) Timing of the Answer

(i) Generally the answer must be served within 20 days after service of the complaint.
 If the plaintiff sends the defendant a request to waive formal service, and
 the defendant agrees to accept service by mail, then
 the defendant has 60 days from the date the request was sent within
which to answer. [FRCP 12(a)(1)(B)]

(ii) If the defendant brings a pre-answer FRCP 12 motion to dismiss the complaint but
does not prevail, he has 10 days after the court denies the motion in which to
serve the answer.

3. FRCP 12(b): Defenses & objections to pleadings

a) Can be raised either by:
(i) Motion
(ii) Pleading the defenses in the answer

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b) Relief granted is dismissal of the complaint (or ≥1 claim) due to a perceived defect
(i) FRCP 12(b)(1): Lack of subject-matter jurisdiction
 Defenses in FRCP 12(b)(1) can never be lost

Defenses in FRCP (ii) FRCP 12(b)(2): Lack of personal jurisdiction

12(b)(2) – (5): lost if
they are not properly (iii) FRCP 12(b)(3): Improper venue
preserved either in a
motion or in the answer (iv) FRCP 12(b)(4): Insufficient process

(v) FRCP 12(b)(5): Insufficient service of process

Defenses in FRCP
12(b)(6) – (7): limited (vi) FRCP 12(b)(6): Failure to state a claim upon which relief can be granted
opportunity to raise
(vii) FRCP 12(b)(7): Failure to join a party under FRCP 19
later, but not lost if D
fails to raise or preserve
c) FRCP 12(b)(6) Motions (D’s motion to dismiss for failure to state a claim)
(i) A Rule 12(b)(6) motion is brought by a defendant seeking to dismiss the complaint
for failure to state a claim upon which relief can be granted.

(ii) It may be filed at any time in the proceedings, even at trial. [FRCP 12(h)(2)]

(iii) A Rule 12(b)(6) motion alleges that based on the facts alleged in the complaint,
there is no legal theory under which plaintiff can obtain relief.
 If granted, the complaint is typically dismissed without prejudice so that
the plaintiff can amend it.

(iv) Concern the merits of the case

 Court “cannot reach beyond the complaint for evidence to resolve factual
disputes” in deciding on a Rule 12(b)(6) motion to dismiss
 If the court does “consider*+ matters beyond the pleadings (such as
documents, affidavits, and the like), Rule 12(d) requires that the motion be
‘treated as one for summary judgment under Rule 56.’”
 A FRCP 56 motion for summary judgment “cannot usually be
granted until the opposing party has had time to conduct

4. FRCP 12(c) Motion for judgment on the pleadings

a) “*P+ may believe that *D’s+ answer, when coupled with the complaint, proves *P’s+
entitlement to a favorable judgment.” – p. 70
b) Equivalent of a FRCP 12(b)(6) motion

D. Certification of Court Documents

1. FRCP 11(a) requires that every pleading, written motion, and other paper be signed by an
attorney of record, or the party, if unrepresented by counsel.
a) Pleadings need not generally be verified or accompanied by affidavit.

b) By signing a pleading or other judicial document, the attorney or party certifies that, “to the
best of his knowledge, information, and belief formed after reasonable inquiry”:
(i) Pleading is not being presented for any improper purpose,
 such as to harass or to cause unnecessary delay or needless increase in the
cost of litigation

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(ii) Claims, defenses, and other legal contentions therein are warranted by existing
law or by a non-frivolous argument for the extension, modification, or reversal of
existing law or the establishment of new law

(iii) Allegations and other factual contentions have evidentiary support or, if
specifically so identified, are likely to have evidentiary support after a reasonable
opportunity for further investigation or discovery

(iv) Denials of factual contentions are warranted on the evidence or, if specifically so
identified, are reasonably based on a lack of information or belief.

E. Amendment of Pleadings
1. Amendment Without Permission of the Court
a) FRCP 15(a)(1) provides that a party may amend “once as a matter of course” (without
permission from the court or consent of other parties)
(i) before a responsive pleading is served, or
(ii) within 20 days of service if no responsive pleading is required.

2. Amendment Requiring Permission of the Court

a) FRCP 15(b) authorizes pleading amendments upon consent by the court during trial and
even after judgment, “to conform to the evidence.”

3. Amendment and the Statute of Limitations

a) Amendments to Claims
(i) In federal actions, an amendment of a claim or defense relates back to the date of
service of the original pleading if:
 the doctrine of relation back is permitted by controlling state or federal
statute of limitations law, or
 it is allowed by FRCP 15(c).

(ii) FRCP 15(c)(1)(B) allows relation back when

 “the claim or defense asserted in the amended pleading arose out of the
conduct, transaction, or occurrence set forth . . . in the original pleading.”

(iii) Thus, the transactional relationship test permits relation back of amendments
that merely change the legal theory on which plaintiff seeks relief for the identical
 However, when the amendment presents a new claim that is factually
unrelated to the original claims, it operates, in effect, as a separate action,
which must independently satisfy the statute of limitations.

b) Dubicz v. Com Ed (pg. 78)

(i) Current & retired Com Ed employees (P) alleged D misrepresented terms of their
pension plan.
(ii) Filings:
 P, filing pro se, filed initial complaint
 P retained legal counsel and filed amended complaint
 Court dismissed one complaint with prejudice (age
discrimination); one without (fraud claim did not meet heightened
pleading standards in complaint).
 P did not amend complaint

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(iii) New P filed motion for leave to file amended complaint
 DC denied motion because there was an 8-month time lag

(iv) Rule #1: District Court may deny motion for leave to file an amended complaint for
reasons including the following (pp. 78-9):
 undue delay
 bad faith
 dilatory [tending to cause delay] motive
 undue prejudice to the opposing party by virtue of allowing the
 futility of the amendment

(v) Rule #2: Delay, on its own, "is normally an insufficient reason to deny leave to
amend *the complaint+… Delay must be coupled with some other reason. Typically,
that reason… is prejudice to the non-moving party." [pg. 79]

c) Tran v. Alphonse Hotel Corp. (pg. 82)

(i) D appealed judgment of DC that P’s RICO claim was time-barred by statute of
(ii) Rule: “An amendment ‘relates back’ when ‘the claim or defense asserted in the
amended pleading arose out of the conduct, transaction, or occurrence set forth
or attempted to be set forth in the original pleading.” (FRCP 15(c)(2))

F. Sanctions
1. FRCP 11 is violated by “signing, filing, submitting, or later advocating” a paper when the litigant
knows that it is no longer well-grounded,
a) thus imposing on litigants a continuing duty to correct or even withdraw papers in light of
post-filing events.

2. Representations to the Court (FRCP 11(b)) (suppl pg. 74)

a) “pleading, written motion, or other paper”
(i) attorney ( or unrepresented party)
(ii) “certifies that to the best of the person’s knowledge, information, and belief”
(iii) “formed after an inquiry reasonable under the circumstances”

b) Not being presented for improper purpose (FRCP 11(b)(1))

c) Warranted by existing law (FRCP 11(b)(2)) – falsely pled law

d) Warranted by nonfrivolous argument for: (FRCP 11(b)(2))

(i) Extending
(ii) Modifying Existing law
(iii) Reversing
(iv) Must point out, in document, that you know what existing law is
(v) Can’t pretend law doesn’t exist (as P did in Franz case)

e) Evidentiary (or will likely have) support for facts (FRCP 11(b)(3)) – falsely pled facts

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3. Motion for Sanctions [FRCP 11(c)]
a) Generally a FRCP 11 motion is made by the pleader’s adversary
b) FRCP 11(c)(2) requires that motion be served under FRCP 5
c) FRCP 11(c)(2) grants a litigant a 21-day safe harbor period between service and filing of a
FRCP 11 motion to correct or withdraw the offending paper

4. Patsy’s Brand v. I.O.B. Realty (pg. 87)

a) Trademark infringement litigation
b) D submitted papers to oppose summary judgment motion including affidavit that contained
false information.
c) Rule: “objective reasonableness is the proper standard upon which to judge counsel’s
(i) “An attorney is entitled to rely on his or her client’s statements as to factual claims
when those statements are objectively reasonable.” (pg. 90)
(ii) If counsel did not have reasonable basis to believe client’s statements, then Rule
11 sanctions are appropriate.

5. Courts may impose FRCP 11 sanctions of their own initiative (“sua sponte”)
a) In Re Pennie & Edmonds LLP (pg. 91)
(i) Rule: When “a sua sponte Rule 11 sanction denies the opportunity to withdraw
the challenged document pursuant to the ‘safe harbor’ provision of [FRCP 11(c)(2)]
the appropriate standard is subjective bad faith.”
 Standard of unreasonableness “is appropriate when the lawyer whose
submission is challenged by motion has the opportunity, afforded by the
‘safe harbor’ provision, to correct or withdraw the challenged submission.”

6. Sanctions, imposed at the discretion of the court, may include:

a) Reasonable attorneys fees;
b) Fines;
c) Striking the offending paper;
d) Admonishing, reprimanding, or censuring the offender;
e) Requiring the offender to participate in educational programs; or
f) Referring the matter to disciplinary authorities.

7. Court’s imposition of FRCP 11 sanctions is reviewable on appeal only for abuse of discretion. (pg.

8. Franz v. US Powerlifting Fed. (pg. 99)

a) Complaint alleged USPF conspired with its officers
b) “*D+istrict court dismissed the complaint under FRCP 12(b)(6), finding it dependant on a
theory of conspiracy between the USPF and IPF that could not be sustained.” (pg. 99)
c) “*T+he law is clear that a corporate officer is not capable of conspiring with his corporation…
Sanctions were awarded because it was extremely clear to the court that there was no legal
or factual basis for naming *+ as a *D+.”
(i) Case law had shown that corporate officers cannot conspire with their own
organizations for purposes of antitrust laws. “The complaint was based on a
conspiracy between officer and corporation; this was doomed after [prior case],
and sanctions were in order.” (pg. 100)

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III. Discovery
A. Discovery goals
1. Balance relevant facts with narrowing the issue
a) Does each side have enough to go to trial?
b) Setting up for summary judgment motion, which is based on whether you have enough
evidence to prove case

2. “The various instruments of discovery now serve (1) as a device… to narrow and clarify the basic
issues between the parties, and (2) as a device for ascertaining the facts, or information as to the
existence of whereabouts of facts, relative to those issues.” (Hickman v. Taylor – pg. 139)

B. Discoverable Material
1. FRCP 26(b) describes what may be discovered under the federal rules.
a) Rule 26 is the fountain of all discovery rules
b) FRCP 26(b) is the heart of Rule 26

2. Unless discovery has been otherwise limited by a protective order of the court, a party may
discover any matter that is:
a) relevant to a claim or defense;
b) reasonably calculated to lead to discovery of admissible evidence;
c) not privileged;
d) not constituting work product (A special showing is required for discovery of work product
prepared or acquired in anticipation of litigation or for trial.)

3. Discovery may include:

a) information already in the discoverer’s possession
(i) Even when the discoverer already knows or possesses certain information, he is
entitled to discover it from his adversary.
b) impeachment material
(i) Discovery includes material that may impeach an opponent’s witnesses.
c) opinions and contentions
(i) Discovery is not limited to facts, but may also include opinions held by non-experts
and contentions regarding the facts or the application of law to the facts.
d) insurance agreements
(i) FRCP 26(a)(1) expressly requires disclosure of insurance agreements available to
satisfy any or all of any judgment, even though they remain inadmissible at trial.

C. Mechanics of the Discovery Process

1. Required Disclosures
a) FRCP 26(a)(1) mandates three types of discovery that must be automatically produced
regardless of discovery request: (suppl pg. 138)
(i) Name (address, phone number) of each individual likely to have discoverable
information that disclosing party may use to support its claims or defenses [FRCP
 Potential fact witnesses
(ii) Copies of all documents and tangible things that disclosing party may use to
support its claims or defenses [FRCP 26(a)(1)(ii)]
(iii) Damages [FRCP 26(a)(1)(iii)] and insurance policies [FRCP 26(a)(1)(iv)]

b) A party who without substantial justification fails to disclose material subject to required
disclosure is precluded under FRCP 37(c)(1) from introducing the material at trial.

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c) Excluded from FRCP 26(a)(1) are witnesses and documents that will either be used solely for
impeachment or will not be used at trial.

2. Pretrial Disclosures
a) In addition to the required disclosure of expert witness testimony, the parties must
exchange lists of trial witnesses and trial exhibits at least 30 days before trial.

3. Supplementation of Discovery
a) Under FRCP 26(c) and (e), a party must ensure the continued accuracy of the following types
of discovery throughout the lawsuit:
(i) automatic discovery required by FRCP 26(a);
(ii) disclosures made by expert witnesses that are to testify at trial; and
(iii) responses to an interrogatory, request for production, or request for admission.

b) If such discovery becomes incomplete or inaccurate, the party or his/her attorney must
provide additional or corrective information to the opponent, if not already known by the
(i) A common sanction for breach of the duty to supplement is exclusion at trial of
evidence withheld by the discoveree.
(ii) This sanction is inappropriate, however, if a continuance and opportunity for mid-
trial discovery can enable the discoverer to overcome his/her surprise and prepare
effective cross-examination and rebuttal.

4. Mandatory Discovery Conference and Discovery Plans

a) FRCP 26(f) requires parties to a lawsuit
(i) to confer as soon as practicable to discuss the case and possibilities for settlement,
to arrange for required disclosures, and
(ii) to develop a discovery plan incorporating these and other agreements for
subsequent discovery.
(iii) FRCP 26(d) precludes discovery prior to such conference.

5. Experts [FRCP 26(a)(2)]

a) FRCP 26(a)(2) differentiates between experts expected to testify at trial (testifying experts)
and those merely retained or specially employed in anticipation of trial who are not,
however, expected to testify (non-testifying experts).
(i) FRCP 26(a)(2) requires disclosure of the identity and expected testimony of the
testifying experts and FRCP 26(b)(4)(A) permits their depositions.

(ii) FRCP 26(b)(4) conditionally protects the non-testifying experts from discovery
absent a special showing.

b) Excluded from the Rule’s protection is any expert who acquires his information directly as
either a participant or observer about the transactions or occurrences underlying the
(i) In such circumstances, the “expert” is an ordinary fact witness.
(ii) For example:
 a police officer who responds to the accident scene,
 a doctor who attends in the emergency room, or
 a mechanic who services the car whose brakes failed.

6. Depositions
a) Procedure for Taking

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(i) To depose a party or non-party witness, FRCP 30 requires reasonable written
notice to the deponent and all parties to the action of the time and place of the
deposition and identity of the deponent.
 A party must comply with the notice or else seek a protective order
because, by the initial service of process on him/her, he/she is already
under the personal jurisdiction of the court.
 Thus, no subpoena is required to compel the attendance of a party-
deponent but may be used to compel an uncooperative non-party
(ii) If documents to be used in conjunction with the deposition are sought, the
deposing party must attach to the deposition notice:
 FRCP 34 request for production of documents for a party-deponent
 Subpoena duces tecum for a non-party.
(iii) Under FRCP 30(b)(6), a party may name as a deponent in his notice and subpoena
a corporation, agency, partnership or other legal entity and describe the matters
on which examination is requested.
 The entity must then designate one or more officers, directors, managing
agents or other persons with relevant knowledge to testify on its behalf.

7. Interrogatories
a) Interrogatories are written questions directed to a party, who must answer them in writing
and under oath, or object with particularity.
(i) Interrogatories target not just what is known by the discoveree, but also what is
reasonably obtainable by the dicoveree — “the collective knowledge” of the
(ii) “A party is charged with knowledge of what his agents know, or what is in records
available to him, or even, for purposes of FRCP 33, what others have told him on
which he intends to rely in his suit.”

b) FRCP 33(a) limits the number of questions (taking into account discrete subparts of
questions) that can be posed to another party to 25, unless otherwise stipulated to by the
parties or ordered by the court.

8. Physical and Mental Examinations

a) When the physical or mental condition of a party (or person in the custody or legal control of
a party) is in controversy, a court may on motion and for good cause shown order the party
or person to undergo a physical or mental examination under FRCP 35.

b) FRCP 35(b) establishes a rule of reciprocity for the exchange of examination reports. The
examinee is entitled to the report of the examination upon request.
(i) In exchange, the examinee must produce any prior reports of examinations of the
same condition, and waives any privilege he/she has regarding the testimony of
anyone who has or will examine him/her concerning that condition.

D. Scope: Relevance
1. Basic scope of discovery [FRCP 26(b)(1)] (suppl pg. 141)
a) “Parties may obtain discovery regarding any nonprivileged matter that is relevant to any
party’s claim or defense.”
b) “For good cause… *discovery may include+ any matter relevant to the subject matter
involved in the action.”
c) “Relevant information need not be admissible at the trial.”

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2. Limitations on Discovery [FRCP 26(b)(2)] (suppl pg. 142)
a) Three fundamental limits on discovery:
(i) Relevance
 “*E+vidence having any tendency to make the existence of any fact that is
of consequence to the determination of the action more probable or less
probable than it would be without the evidence.” (pg. 119)
(ii) Privilege
(iii) Proportionality [FRCP 26(b)(2)(C)]
 By motion or on its own, court may limit discovery
 Unreasonably cumulative or duplicative
 Party has had ample opportunity to obtain information by discovery
 Burden or expense (of proposed discovery) outweighs its likely benefit

b) “Involvement of the court in managing discovery is an important method of controlling

problems of inappropriately broad discovery.” (pg. 125)

c) Court “has the authority to confine discovery to the claims and defenses asserted in the
pleadings… parties *+ have no entitlement to discovery to develop new claims or defenses
that are not already identified in the pleadings.” (pg. 125)

3. Sanyo Laser Products v. Arista Records (pg. 120)

a) Copyright infringement action
b) D / counter-claimant sought to discover P’s relationship with affiliated companies; D filed
motion to compel and P filed motion for protective order
c) Rule: “When the discovery sought appears relevant, the party resisting the discovery has the
burden to establish the lack of relevance by demonstrating that the requested discovery is of
such marginal relevance that the potential harm occasioned by discovery would outweigh
the ordinary presumption in favor of broad disclosure.” (pg. 121)

4. Protective Orders [FRCP 26(c)]

a) Party (or any person from whom discovery is sought) may move for protective order
(i) Movant must certify that s/he has “in good faith conferred or attempted to confer
with other affected parties in an effort to resolve the dispute without court
action.” (FRCP 26(c)(1))
b) Court may issue protective order upon showing of good cause
c) Court may forbid or restrict disclosure or discovery (see list; FRCP 26(c)(1)(A)-(H))

5. Specific limitations on discovery of Electronically Stored Information (ESI)

a) Aubuchon v. BeneFirst (pg. 127)
(i) D administered P’s employee benefits plan; P alleged D breached fiduciary duty by
spending too much on medical claims
(ii) P sought production of all medical claims files
 D failed to comply with discovery request
 P filed motion to compel
(iii) D asserted that files were not “reasonably accessible” within the meaning of FRCP
(iv) P narrowed request to smaller sample of claims files
(v) Two-step test:
 Is the requested information “reasonably accessible”?
 If information is not reasonably accessible, is there “good cause” to order
production anyway?
 See pp. 131-2 for list of seven factors

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b) Zubulake v. UBS Warburg (pp. 128+, 135)
(i) “*T+he time and expense required to retrieve documents and electronic data
depends primarily on whether such information ‘is kept in an accessible or
inaccessible format.’” (pg. 129)

Type of electronically stored data Accessibility

On-line storage Most accessible
Near-line (w/in
Off-line FRCP26(b)(2)(B))

Backup tapes Inaccessible

Least accessible (w/in
Erased, fragmented, damaged FRCP26(b)(2)(B))

(ii) Marginal utility formula

(iii) “*C+ourt can order the requesting party to pay all, or a portion, of the costs of
retrieving ESI.” (pg. 135)
 Seven relevant factors related to cost sharing (pg. 135)

E. Scope: Privilege
1. Privileged Communications
a) The attorney-client, doctor-patient, priest-penitent, interspousal privilege and the privilege
against self-incrimination are commonly recognized privileges. In order to prove that a
communication is privileged, the party claiming privilege must show that such
(i) was made with an expectation of confidentiality;
(ii) is essential to a socially approved relationship or purpose; and
(iii) has not been waived by disclosure of the contents of the communications to
persons outside the relationship.

b) Privileges are narrowly construed in order to minimize their effect on liberal disclosure. The
proponent of a privilege has the burden of establishing its existence. [FRCP 26(b)(5)]

2. Attorney Work Product

a) General Rule
(i) Work product, generally defined as information prepared or obtained in
anticipation of litigation or preparation for trial by or for a party or his
 Qualified immunity under FRCP 26(b)(3).
 The Rule authorizes discovery of work product in the form of documents
and tangible things only upon a showing that the party seeking discovery:
 has substantial need of the materials in the preparation of his
case, and
 is unable without due hardship to obtain the equivalent of such
materials by other means.

(ii) The current version of FRCP 26(b)(3) essentially codifies the case of Hickman v.
Taylor, in which the Supreme Court recognized a common law qualified immunity
of work product from discovery.

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(iii) Hickman v. Taylor (pg. 137)
 Tug boat sank and several crew members died.
 Attorney privately interviewed survivors and witnesses.
 Rule #1: “*M+emoranda, statements, and mental impressions… fall outside
the scope of the attorney-client privilege and hence are not protected
from discovery on that basis.” (pp. 140-1)
 “Work-product of the lawyer”: “interviews, statements, memoranda,
correspondence, briefs, mental impressions, personal beliefs, and
countless other tangible and intangible *work+.” (pg. 142)
 Rule #2: [T]he general policy against invading the privacy of an attorney’s
course of preparation is so well recognized and so essential to an orderly
working of our system of legal procedure that a burden rests on the one
who would invade that privacy to establish adequate reasons to justify
production through a subpoena or court order.” (pp. 142-3)

b) Prepared in Anticipation of Litigation or for Trial

(i) Immunity is limited by FRCP 26(b)(3) to materials “prepared in anticipation of
litigation or for trial.”
 Most courts add that the primary purpose of preparing the documents
must have been to assist in such litigation.
 Thus, documents prepared for ordinary business purposes (e.g., a routine
accident report), public regulatory requirements (e.g., statutorily-required
report to police of automobile accidents involving injuries), or other
nonlitigation purposes (e.g., self-evaluation) fall outside the Rule.

c) Documents and Tangible Things

(i) The Court in Hickman emphasized that although the written witness statements
and the attorney’s memoranda were not discoverable on a bare demand, the
discoverer was free to obtain the facts gleaned by discovery.
 The qualified immunity for work product does not protect against
discovery of facts – which may be construed as “intangible things” –
contained in the work product, including the identity of fact witnesses or
the existence of the protected documents and things.
 However, federal courts have ruled that the discoveree may not be
compelled to reveal facts to the extent that he is essentially recreating the
protected document for the discoverer.
(ii) Although witness statements qualify as work product, FRCP 26(b)(3) expressly
provides that a party or witness may on demand obtain a copy of his own
substantially verbatim statement concerning the subject matter of the action.

d) Undue Hardship
(i) Hickman demonstrates that the “undue hardship” requirement may be satisfied
when important facts are exclusively in the control of the discoveree such that the
party seeking discovery has no other reasonable access to the information. For
example, undue hardship may exist where:
 a witnesses died, moved beyond the reach of compulsory process, lost his
memory, deviated from his prior testimony or refused to cooperate; or
 evidence that has physically disappeared or been altered is reflected in
work product, such as photographs of skid marks or conditions at the
scene of an accident.

Page 15 of 36
e) Ordinary Work Product
(i) FRCP 26(b)(3)(A)(ii) permits disclosure on a showing of substantial need and
undue hardship (pg. 147)

f) Core Work Product

(i) FRCP 26(b)(3) provides what appears to be an absolute immunity for core
(opinion) work product, defined as “mental impressions, conclusions, opinions, or
legal theories of an attorney or other representative of a party concerning the
litigation.” (pg. 147)

3. Regional Airport Authority v. LFG (pg. 148)

a) RAA acquired property from D, hired environmental consulting firm (experts) to investigate
the site, prepare analyses and reports
b) Rule:
(i) FRCP 26(a)(2) mandates disclosure of all information provided to testifying
(ii) FRCP 26(a)(2)(B)(i)-(ii) “requires parties to provide ‘a complete statement of… the
data or other information considered by the witness.’” (pg. 151)
(iii) “Rule 26 creates a bright-line rule mandating disclosure of all documents,
including attorney opinion work product, given to testifying experts.” (pg. 152)

F. Discovery Disputes & Sanctions

1. Certification Requirements
a) FRCP 26(g) imposes two different kinds of certification requirements on discovery initiatives.
(i) It requires an attorney or unrepresented party to certify to knowledge,
information or belief, formed after reasonable inquiry, that a disclosure under
FRCP 26(a)(1) or (3) is “complete and correct as of the time it is made.”

(ii) In addition, FRCP 26(g) imposes a certification requirement for discovery requests,
responses and objections paralleling that of FRCP 11.
 By signing such a request or response, the attorney certifies that the
discovery request is not predicated on an improper motive such as
harassment or delay, and is not disproportionate to the needs of the case.

2. Protective Orders
a) A person served with a discovery request may seek a protective order against such request if
it may cause “annoyance, embarrassment, oppression, or undue burden or expense.”
(i) Discovery may be found unduly burdensome based on the location or condition of
the discoveree, and may be unduly invasive when it probes matter that, though
unprivileged, is confidential.

b) In order to cure a burdensome discovery request without the court having to wholly deny it,
FRCP 26(c) authorizes protective orders that accomplish the following goals:
(i) Restrict the time, place, method or scope of discovery;
(ii) Require that discovery be sealed and only opened by court order;
(iii) Limit the disclosure of trade secrets and other business information.

c) Phillips v. GM (pg. 163)

(i) LA Times, as intervenor, sought information produced during discovery
(ii) There was an issue as to whether it was protected by a protective order
(iii) Key message: “Generally, the public can gain access to litigation documents and
information produced during discovery unless the party opposing disclosure shows
‘good cause’ why a protective order is necessary.”

Page 16 of 36
3. Sanctions for Discovery Abuses
a) Under FRCP 37, no party may move for an order compelling discovery or for sanctions
without certifying that it has tried in good faith to resolve the discovery dispute with other
parties without court action.
(i) FRCP 37(b) authorizes sanctions for a failure to comply with an order to compel
discovery or equivalent discovery order.
(ii) Rules 26(g), 37(c) and 37(d), however, permit the imposition of sanctions without
an intervening discovery order in some circumstances.

b) The discoverer may move under FRCP 37(a) for an order compelling discovery either when
the discoveree objects to discovery or responds evasively or incompletely.
(i) If the motion to compel is granted, FRCP 37(a)(4) requires the court to award the
movant attorney’s fees and other expenses incurred in making the motion unless it
finds that opposition to the motion was “substantially justified.”
(ii) If the motion is denied, the discoveree has a similar opportunity for
reimbursement and the court may issue a protective order in his favor.

c) If a party fails to disclose information required to be disclosed by FRCP 26(a), FRCP 37(c)
precludes that party from using the information as evidence at trial.
(i) Furthermore, FRCP 26(g) requires sanctions against an attorney or party for
violation of its certification requirement.
(ii) Because most violations of the discovery rules can also be construed as violations
of the certification requirement, FRCP 26(g) may encourage federal courts to
impose discovery sanctions more often without an intervening order compelling

d) FRCP 37(b) sets forth a range of sanctions by authorizing the court to:
(i) award discovery expenses against the violator.
(ii) deem established facts that were the object of discovery.
(iii) exclude evidence.
(iv) strike all or part of the pleadings.
(v) hold the violator of a discovery order (other than one for physical or mental exam)
in contempt.
(vi) dismiss the action.
(vii) render judgment by default.

e) Levels of sanctions under FRCP 37 (pg. 159)

(i) Minor sanctions
 After a Rule 37(a) motion to compel discovery is granted, court must also
award minor sanctions including the reasonable expenses (incl. atty’s fees)
that the movant incurred prosecuting the motion to compel; unless
movant did not act in good faith before filing the motion)
 If the Rule 37(a) motion is not “substantially justified” the court must
award fees against the moving party

Page 17 of 36
(ii) Major sanctions
 Major sanctions are not available for failure to comply with a discovery
 After Rule 37(a) motion is successful and court orders production of
requested discovery materials, if party does not comply they are:
 Disobeying an order of the court
 Subject to major sanctions
 National Hockey League v. Metro Hockey Club (pg. 156)
 P failed to obey an order to provide or permit discovery
 District court dismissed the case
 “*E+xtreme sanction of dismissal was appropriate in this case by
reason of *P’s+ ‘flagrant bad faith’ and their counsel’s ‘callous
disregard’ of their responsibilities.

VI. Case Management

A. Pretrial Conference
1. Purposes
a) The overarching aim of the pre-trial conference is to more efficiently manage the course of a
lawsuit. To that end, the pre-trial conference seeks to:
(i) Clarify issues.
(ii) Control, expedite and reduce the waste of pretrial litigation generally.
(iii) Facilitate settlement.

2. Procedures for Pretrial Conferences

a) FRCP 16 authorizes one or more pretrial conferences in the judge’s discretion.
(i) When only one pretrial conference is held, it is usually scheduled after the
completion of discovery, shortly before trial, at which point the parties are to
specify issues and evidence and to amend the pleadings.

b) FRCP 16(b) requires the judge to enter a scheduling order within 90 days after the
appearance of a defendant or 120 days after the complaint is served, setting time limits for
joinder and amendment, motion practice, and completion of discovery, and (optionally)
setting the dates for mandatory discovery, pretrial conferences, and trial, subject to
modification for good cause.

c) Usually the parties will be asked to submit pretrial briefs in which parties state the
undisputed facts, identify the disputed facts, summarize legal contentions, and list trial
witnesses and exhibits. The parties may also be required to make authenticity objections to
proposed trial exhibits and be invited to raise other evidentiary objections that could be
ruled upon before trial.

B. The Pretrial Order and Its Effect

1. FRCP 16(e) requires the court to enter an order after a pretrial conference to preserve its results.
a) Binding effect is given the pre-trial order, and
b) Any claims, witnesses and evidence not specified in the pretrial order will generally be
precluded from trial.
c) The pretrial order can only be modified in order prevent “manifest injustice.”

Page 18 of 36
2. FRCP 16(f) also authorizes the court to punish disobedience of the pretrial order by:
a) striking claims or defenses.
b) dismissing the action.
c) entering a default judgment.
d) holding the disobedient party in contempt.

3. Tower Ventures v. City of Westfield (pg. 186)

a) Violation of scheduling order

4. RMR v. Muscogee County School District (pg. 198)

a) District court excluded witness not on pretrial order
b) In reviewing DC decision, appellate court should consider:
(i) Importance of the testimony
(ii) Reason for the failure to disclose witness earlier
(iii) Prejudice to the opposing party if the witness had been allowed to testify (i.e.,
w/out opportunity for opposing party to depose)
c) P had several options: move for continuance, request mistrial but “eschewed both of these
less prejudicial alternatives.” (pg. 201)

C. Case management techniques

1. Acuna v. Brown Root (pg. 191)
a) 1600 Ps suing >100 Ds
b) Lone Pine orders: designed to handle complex issues and potential burdens on [Ds] and the
court in mass tort litigation
c) District court dismissed case for failing to comply with Lone Pine order

2. Ricciuti v. New York City Transit Authority (pg. 194)

a) Bifurcation of discovery pursuant to FRCP 42(b)
b) “*C+onvenience, economy, and justice”

D. Settlement & ADR (pg. 203)

1. In re Atlantic Pipe (pg. 216)
a) “*W+e hold that the *DC+, in an appropriate case, is empowered to order the sharing of
reasonable costs and expenses associated with mandatory non-binding mediation… a
mediation order must contain procedural and substantive safeguards to ensure fairness to
all parties involved.” (pg. 222)

VII. Judge & Jury

A. The Right to Trial by Jury
1. The Seventh Amendment of the United States Constitution states that “in suits at common law…
the right of trial by jury shall be preserved.”
a) In a long line of cases, the Supreme Court has interpreted this clause to refer to common law
actions in existence at the time of the amendment’s adoption in 1791.

Page 19 of 36
2. The Seventh Amendment does not confer the right to a jury trial in purely equitable actions.
a) Thus, in determining whether a constitutional right to jury trial exists for a statutory cause of
action in which Congress has not expressly created a right to jury trial, federal courts have
been required to determine whether the issue at hand most closely resembles something
adjudicated at law or equity in 1791.
(i) The “legal” nature of a claim is to be determined by considering (Two-Prong Test):
 the origins of the claim prior to the merger of law and equity
 the remedy sought
 (Third prong: practical abilities and limitations of juries)
 Ross v. Bernhard (pg. 241)

(ii) However, greater emphasis is to be given to the remedy sought.

 Thus, legal claims brought in an action that was historically equitable, may
be tried by a jury.
 e.g., interpleader, a class action, or a shareholder derivative suit

(iii) Where a case presents both legal and equitable claims which have issues in
 the trial court must first try the legal claim(s) so as to preserve the right to
a jury trial on such issues. [Beacon Theatres, Inc. v. Westover, pg. 248+]

(iv) A party cannot seek to bar a jury trial by couching essentially legal claims to appear
as if they exist at equity.

3. Federal administrative agencies never use jury trials (pg. 242)

(i) Agencies perform certain fact-finding functions in statutory public rights cases
(often involving the government as a party)
(ii) Agency can delegate fact-finding to judge

4. Teamsters v. Terry (pg. 233)

a) Constitutional issue was whether P were entitled to jury trial
b) Cause of action was breach of duty of fair representation according to a collective bargaining
(i) Breach of duty was not a cause of action in 18 -century England (in fact, it was
unlawful at the time)
(ii) Court had to “look for an analogous cause of action that existed in the 18 century
to determine whether the nature of *the claim+ is legal or equitable.” (pg. 236)
c) Under first prong of test, P’s claim encompassed both legal and equitable issues.
d) Under second prong of test, P’s remedy sought was monetary damages.
(i) Restitutionary damages are equitable (e.g., money wrongly held, unjust
(ii) “*A+ monetary award ‘incidental to or intertwined with injunctive relief’ may be
e) “*R+emedy of backpay sought in this duty of fair representation action is legal in nature… we
find that [P is] entitled to a jury trial on all issues presented in their suit.”

B. Claiming a Jury Trial

1. The right to a jury trial is waived by a party that does not make a timely demand for such.
2. FRCP 38(b) requires the demand to be made “in writing at any time after the commencement of
the action and not later than 10 days after the service of the last pleading directed to such issue.”

Page 20 of 36
C. Jury Selection
1. Voir dire is the process by which a jury is selected, and is
a) intended to expose biases or interests of venire members (potential jurors) that would
disqualify them for cause.

2. Usually parties are given unlimited challenges for cause [FRCP 47(c)] and a limited number of
peremptory challenges [FRCP 47(b)]
a) Peremptory challenge permits counsel to keep persons off the jury without offering a reason
b) SCOTUS has ruled that civil litigants may not use their peremptory challenges to exclude
jurors on account of the jurors’ race or gender
(i) Edmonson v. Leesville Concrete Co. (pg. 251)
 Leesville used two of its peremptory challenges to remove black persons
from the prospective jury
 Race-based challenge violates the equal protection rights of challenged

3. FRCP 48 requires a minimum of six jurors in federal civil trials.

4. States differ as to the minimum number of jurors required in state civil trials.

D. Instructing the Jury

1. Whether or not the parties request instructions, a judge has the duty in most jurisdictions to
instruct the jury on the applicable law.

2. FRCP 51 treats the manner in which jury instructions are to be prepared and given in federal

3. FRCP 51 is typical in providing that a party may challenge instructions on appeal only if he objects
before the jury retires to deliberate, “stating distinctly the matter objected to and the grounds of
the objection.”
a) Appellate courts decide the correctness of instructions de novo, but view the instructions as
a whole, including any curative instructions, and reverse only for prejudicial error.

E. Verdicts
1. Verdicts in federal civil trials must be unanimous. [FRCP 48] Verdicts may be of three types:
a) general verdict – a verdict for one side or another without explanation.
b) special verdict – the jury answers a series of short-answer fact questions without rendering
a specific verdict; the trial judge then announces a verdict based on the answers in the
special verdict. [FRCP 49(a)]
c) general verdict accompanied by answers to written interrogatories. [FRCP 49(b)]

2. Both alternatives to the general verdict are within the discretion of the trial judge.

VIII. Summary Judgment (before the trial) [FRCP 56]

A. Standard for Summary Judgment
1. Where a party (typically the defendant) believes that there exists no genuine dispute of material
fact that would require determination by a trier-of-fact, he may bring a motion for summary
judgment seeking judgment in his favor on some or all claims and defenses as a matter of law.
a) A genuine dispute is one which a reasonable jury could resolve against the movant.
b) A material fact is an essential element (one that might affect the outcome of the suit) of
claim or defense for purposes of summary judgment.
c) If there is an issue of fact, then case must go to fact-finder (e.g., jury), summary judgment
not appropriate

Page 21 of 36
d) Can be used as a sword or a shield
(i) Aimed at opposing party to get their case dismissed
(ii) Moving party seeking judgment on their behalf without trial

2. Celotex Corp. v. Catrett (pg. 258)

a) “*T+he plain language of Rule 56(c) mandates the entry of summary judgment, after
adequate time for discovery and upon motion, against a party who fails to make a showing
sufficient to establish the existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial… complete failure of proof
concerning an essential element of the nonmoving party’s case necessarily renders all other
facts immaterial.” (pg. 259)
b) Mirrors the standard under FRCP 50(a).

3. The other two cases in the “summary judgment trilogy”

a) Matsushita Electric v. Zenith (pg. 264)
(i) Large antitrust conspiracy case
(ii) Alleged conspiracy not objectively reasonable
(iii) P only had circumstantial evidence of alleged conspiracy
(iv) No rational economic actor would have acted in the market in the way P claimed D
did for as long as they did
(v) In the absence of direct evidence of a monopolistic conspiracy and the lack of
rational economic motive for D to behave, court held that summary judgment was

b) Anderson v. Liberty Lobby (pg. 264)

(i) Libel case; D had first amendment right to free speech
(ii) P had burden to prove case with clear and convincing evidence
(iii) Court held that standard of proof should be factored into the equation on whether
P had demonstrated the existence of genuine issue of material fact; discussed
definitions of genuine and material (noted in Standard, above)
(iv) Discussed standard of whether a reasonable jury could find in favor of P

4. Scott v. Harris (pg. 266)

a) The court is required to [reasonably] construe the facts and draw all reasonable inferences
“in the light most favorable to the [nonmoving] party”; that is, the party opposing the
summary judgment motion.’”
(i) i.e., nonmovant’s facts are accepted as true

b) “’When the moving party has carried its burden under Rule 56(c), its opponent must do
more than simply show that there is some metaphysical doubt as to the material facts…
When opposing parties tell two different stories, one of which is blatantly contradicted by
the record so that no reasonable jury could believe it, a court should not adopt that version
of the facts for purposes of ruling on a motion for summary judgment.” (pg. 269)

B. Burden of Production
1. A motion for summary judgment may be supported by the pleadings, discovery documents,
affidavits, and any other materials that present facts that would be admissible at trial.
a) Hearsay, speculation, conclusions of law, conclusory ultimate facts, and promises that the
necessary evidence will be offered at trial therefore cannot support a motion for summary
judgment, even when presented by an otherwise proper affidavit.

Page 22 of 36
2. If movant meets his burden of production that there exists no triable issue of fact,
a) In order to avoid a finding of summary judgment, the opposing party “may not rest upon the
mere allegations or denials” of his pleading but must set forth specific facts showing that
there is a genuine issue for trial. [FRCP 56(e)]
b) Alternatively, the opposing party may present an affidavit under Rule 56(f) stating why he
cannot state specific facts in opposition to summary judgment at the present time, without
adequate time for discovery.
(i) The reasonableness of plaintiff’s request for time is a crucial factor in the exercise
of the court’s discretion.

3. If the movant for summary judgment fails to meet his burden of production, the opposing party
need not do anything as entry of summary judgment is not proper in the absence of a prima facie
showing that there is no genuine dispute of material fact.

C. Disposition and Appeal

1. If the court finds that the movant has met his burden of production, it may enter judgment on a
claim or defense.
a) The court may enter judgment on the issue of liability alone, even though the amount of
damages remains for trial.

2. While summary judgments address the merits, they may not be immediately appealable.
a) Summary judgment as to liability alone is interlocutory in character and identified as such
under FRCP 56(c).

b) Similarly, summary judgment with respect to fewer than all the claims or parties is also not
considered final for purposes of federal appeal, although a court may direct entry of a final
judgment in such cases in conformity with FRCP 54(b).

IX. Judgment as a Matter of Law [FRCP 50]

A. Motion for Judgment as a matter of law [FRCP 50(a)]
1. Upon the close of a party’s case, if the opposing party believes that such other party did not
prove his case, he may move for a judgment as a matter of law.
a) Traditionally, when a motion was made at the end of the plaintiff’s case, or after both sides
had rested but before the jury retired to deliberate, the motion was one for directed verdict.
b) When made following the jury’s verdict, the motion was for judgment notwithstanding the
verdict (JNOV). Although states retain the distinction, federal law has merged the two
motions into one for judgment as a matter of law.

2. In a bench trial, the equivalent to the Rule 50(a) motion is the FRCP 52(a) motion for judgment
on partial findings.

B. Standard for granting motion for Judgment as a Matter of Law

1. A motion for judgment as a matter of law may be granted if, after a party has been fully heard
on an issue, “there is no legally sufficient evidentiary basis for a reasonable jury to find for that
party on that issue.” *FRCP 50(a)(1)]

Page 23 of 36
a) Reeves v. Sanderson Plumbing Products Co. (pg. 273)
(i) Employer discrimination lawsuit
(ii) DC twice denied Rule 50 motions by D
(iii) “*T+he court must draw all reasonable inferences in favor of the nonmoving party,
and it may not make credibility determinations or weigh the evidence… *A+lthough
the court should review the record as a whole, it must disregard all evidence in
favor of the nonmoving party that the jury is not required to believe. That is, the
court should give credence to the evidence favoring the nonmovant as well as that
‘evidence supporting the moving party that is uncontradicted and unimpeached, at
least to the extent that that evidence comes from disinterested witnesses.” (pg.

b) Court must draw all reasonable inferences in favor of the nonmoving party;

2. Standard mirrors that of summary judgment: no legally sufficient evidentiary basis for a
reasonable jury to find for the party opposing the motion

3. The party seeking judgment as a matter of law must make motion before the jury retires,
specifying “the judgment sought and the law and facts on which the moving party is entitled to
judgment.” *FRCP 50(a)(2)]
a) If the court does not grant the motion prior to the jury returning a verdict, and the verdict is
unfavorable to the movant, he must renew such motion no later than 10 days after the

C. Renewed motion for Judgment as a Matter of Law [FRCP 50(b)]

1. Must be filed within 10 days of the entry of judgment.

2. Grounds are identical as those for granting Judgment as a Matter of Law under FRCP 50(a).

3. Cannot be granted unless the moving party made a motion for judgment as a matter of law
[FRCP 50(a)] during the trial itself.

4. Can assert only those grounds that were previously asserted in the Rule 50(a) motion.

5. In bench trial, the equivalent to the Rule 50(b) motion is the FRCP 52(b) motion to amend the

D. Motion for a New Trial

1. In General
a) Must be filed within 10 days of entry of judgment

b) FRCP 59(a) and many state rules authorize a new trial in appropriate cases.

c) Most grounds for new trial fall into two categories:

(i) Errors in the jury’s evaluation of the evidence
(ii) Errors in the trial process, including errors in the law applied

d) Party’s failure to move for a new trial precludes appellate review of an “against the weight of
the evidence” argument, but not an argument premised on other new trial grounds.

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2. Unitherm v. Swift-Eckrich (pg. 287)
a) Respondent filed a Rule 50(a) motion before the verdict
b) Respondent did not file a Rule 50(b) motion after the verdict
c) Respondent did not request a new trial under Rule 59
d) Respondent filed an appeal
e) “*S+ince respondent failed to renew its preverdict motion as specified in Rule 50(b), there
was no basis for review of respondent’s insufficiency of the evidence challenge in the Court
of Appeals.” (pg. 291)

3. Errors by the Jury

a) Jury verdicts may support an order for a new trial if the trial judge concludes that the verdict
is excessive, inadequate, or otherwise against the weight of the evidence.

b) Against the Weight of Evidence

(i) The standard often applied in federal courts for determining whether a new trial is
warranted is if:
 the verdict is against the clear weight of the evidence; or
 based upon evidence which is false; or
 will result in a miscarriage of justice
(ii) Failure to renew a motion for judgment as a matter of law [FRCP 50(b)] bars a
new-trial motion under Rule 59 that is premised on insufficiency of the evidence,
but not any other “against the weight” argument.

4. Excessive or Inadequate Verdicts

a) When a motion for a new trial is granted made on an assertion that the verdict is excessive
or inadequate, the trial court may conditionally grant the motion by requesting the opposing
party to accept remittitur, and in some states, additur.
(i) Remittitur is an agreement by the opposing party (generally the plaintiff) to accept
a reduction of the verdict. A party who consents to remittitur waives any right to
appellate review of it.
(ii) Additur is an agreement by the opposing party (generally the defendant) to accept
an increase in the verdict. However, additur has been held to be in violation of the
Seventh Amendment right to a jury trial and is therefore not available in federal

5. In considering a motion for a new trial, the court does not merely test the verdict for sufficiency,
as is the case for motions for judgment as a matter of law, but actually weighs the evidence.
a) Thus, there may be sufficient legal grounds for the verdict but the verdict may still be set
aside for a new trial.

6. In a bench trial, the equivalent to the Rule 59(a)(1)(A) motion for a new trial is the FRCP
59(a)(1)(B) motion to amend the judgment.
a) But the new trial may be limited to hearing new evidence on a point or points that the court
believes must be corrected or amplified

X. Relief from Judgment or Order

A. Extraordinary Relief [FRCP Rule 60]
1. When the time for direct attack on the judgment by motion for judgment as a matter of law, for
a new trial or by appeal has expired, a party may still seek extraordinary relief from the judgment
by a FRCP 60 motion.

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B. At any time after the judgment a party may seek correction of “clerical mistakes in judgments, orders or
other parts of the record.” [FRCP 60(a)]

C. No later than one year from judgment, a party may seek relief under FRCP 60(b) based on:
1. Mistake, inadvertence, surprise, or excusable neglect.
a) Excusable neglect factors (pg. 302):
(i) Whether a non-defaulting party will be prejudiced
(ii) Whether the defaulting party has a meritorious defense
(iii) Whether culpable conduct of the defaulting party led to the default
b) Ackerman v. US (pg. 297)
(i) P allegedly defrauded US by swearing oath of allegiance but sympathizing with
Nazi regime
(ii) P’s citizenship was revoked (judgment of denaturalization)
(iii) P waited 3 – 4 years to file their Rule 60 motion
(iv) P alleged that failure to appeal was excusable
(v) “A motion for relief because of excusable neglect as provided in Rule 60(b)(1)
must, by the rule’s terms be made not more than one year after the judgment was
(vi) In interpreting the excusable neglect component of Rule 60(b)(1), a number of
courts examine three factors (pg. 302):
 Whether a non-defaulting party will be prejudiced
 Whether the defaulting party has a meritorious defense
 Whether culpable conduct of the defaulting party led to the default

2. Newly discovered evidence which by due diligence could not have been discovered in time to
move for a new trial under FRCP 59(b) (see pg. 302).
a) Evidence has been discovered since trial
b) Evidence could not by due diligence have been discovered earlier by the movant
c) Evidence is not merely cumulative or impeaching
d) Evidence is of such a nature that it would probably change the result were a new trial to be

3. Fraud, misrepresentation, or other misconduct of an adverse party.

D. FRCP 60(b) furthermore provides for relief upon motion brought within a reasonable time where:
1. The judgment is void;
a) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it
is based has been reversed or otherwise vacated, or it is no longer equitable that the
judgment should have prospective application; or
2. Any other reason justifying relief from the operation of the judgment.
a) “*R+esidual catchall provision allows a court to relieve a party from a final judgment where
such relief is appropriate to accomplish justice, but the reasons for that relief are not
encompassed by the other provisions of the rule…
b) “*courts+ should grant Rule 60(b)(6) motions ‘only where exceptional circumstances justify
extraordinary relief exist.’” (pg. 303)

XI. Appeals
A. In General
1. In most jurisdictions, an entry of final judgment is a jurisdictional prerequisite to appeal (the
“Final Judgment Rule”).
2. Under the final judgment rule, parties can only appeal upon final judgment on all claims in the
a) Only losing parties may appeal

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b) A party who is dissatisfied with a pretrial or trial ruling usually may not take an interlocutory
appeal before final judgment, but must wait until a dispositive pretrial ruling or the end of
trial and post-trial proceedings
(i) “Motion for leave to file interlocutory appeal”
3. FRCP 58 provides for clear determination of entry of a judgment by requiring judgments to be set
forth on a separate document, although the appellate court must still determine whether such
judgment is final.

B. Standard of Review
1. Matter of Law → de novo
2. Matter of fact
a) Judicial decision → clearly erroneous (deferential; some cts. use abuse of discretion
b) Jury decision → reasonable jury (deferential)
c) Reversal is warranted only if the reviewing court is left with the definite and firm conviction
that a mistake has been made (pg. 314)
3. Matter of procedure → abuse of discretion standard
a) Deferential
b) Some degree of disinclination to disturb the ruling below
c) To reverse, court must conclude that the ruling is outside a generally considerable range of
discretion appropriately left to the trial judge

XII. Preclusion




A. Claim Preclusion (Res Judicata) [Restatement (2d) Judgments § 17(1)-(2), 24]

1. A final judgment on the merits precludes the same parties (and those closely related to them)
from relitigating the same (or a sufficiently similar) claim in a subsequent lawsuit.
a) If previous claim has been litigated to:
(i) Full and fair resolution (“Full & Fair Opportunity to Litigate”)
(ii) Then, no opportunity to relitigate
(iii) Claim preclusion extends to same transaction

b) Referred to as:
(i) “Merger” when P won (claim merged into judgment)
(ii) “Bar when P lost

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2. Prerequisites to claim preclusion
a) Identical Parties
(i) Claim preclusion only applies between same parties
 Actual parties in the prior adjudication
 Persons or entities not named in the original case may be subject to claim
preclusion if they are sufficiently related to original parties (i.e., if they are
in privity to the litigants).
 Non-parties to a litigation who are in privity to a party are deemed to have
had their interests represented in the prior action, or are deemed to have
no greater interest than did the losing party in that action.

(ii) “Strangers” – those neither parties to, nor in privity with, nor otherwise involved
with the prior adjudication can neither bind nor be bound by claim preclusion.

b) Identical Claims
(i) Claim preclusion is founded on an expanded concept of a “claim” which
encompasses all of the alternative legal theories and the full scope of damages
or other remedies generated by the facts of the original controversy.
 It is irrelevant whether the claim was actually asserted in the prior case, as
long as it could have been.

(ii) Many jurisdictions apply the transaction or occurrence test set forth in
Restatement (2d) Judgments § 24 (pg. 323) in order to determine if a claim should
be precluded.
 Section 24 defines the claim precluded by the judgment to include “all
rights of the plaintiff to remedies against the defendant with respect to all
or any part of the transaction, or series of connected transactions, out of
which the [original] action arose.”

(iii) If a party had a right to join two claims for relief arising from the same transaction
in the first suit, it is reasonable to require her to do so, instead of bringing two
suits that will rehash the same facts

c) Final Judgment on the Merits

(i) A lawsuit cannot have preclusive effect until it has been reduced to final
judgment. [Restatement (2d) Judgments § 13]

(ii) Only judgments on the merits are entitled to claim-preclusive effect

 Full trial followed by a verdict = paradigm of decision on the merits
 Dismissals for improper venue or lack of personal jurisdiction do not bar a
second action
 Jurisdictions differ as to whether dismissal for failure to state a claim (FRCP
12(b)(6) motions) should bar a second action
 Rule 12(b)(6) motions on purely legal issues would be precluded

(iii) Judgments on the merits for defendants have the same preclusive effect.
 However, defendants may obtain judgments in their favor on grounds
other than the merits,
 e.g., lack of personal or subject matter jurisdiction, or improper
 Orders dismissing such cases are not judgments on the merits and
thus do not have claim-preclusive effect. [FRCP 41(b)]

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d) Rush v. City of Maple Heights (pg. 325)
(i) P was injured and motorcycle damaged allegedly resulting from D city’s negligent
street maintenance
(ii) P won first action for property damage for motorcycle
(iii) P filed second action for personal injuries
(iv) “*W+here a person suffers both personal injuries and property damage as a result
of the same wrongful act, only a single cause of action arises, the different injuries
occasioned thereby being separate items of damage from such act.”
(v) Rule = no claim-splitting [Restatement (2d) Judgments § 24(1)]

B. Issue Preclusion (Collateral Estoppel) [Restatement (2d) Judgments §17(3), 27] (pg. 331)
1. The doctrine of issue preclusion (or collateral estoppel) provides that a final judgment precludes
relitigation of the same issue of fact or law if:
a) The issue was actually litigated,
b) Determined by a valid and final judgment,
c) Determination was essential to the judgment.

2. Actually Litigated
a) Issue preclusion bars relitigation of only those matters that were actually litigated and
determined in the prior case.
b) Issues determined in a prior action by motion, such as for dismissal based on failure to state
a claim, for judgment on the pleadings, summary judgment, or directed verdict may in fact
be raised and tried in future litigation. [Restatement (Second) of Judgments § 27]

3. Essential to the Judgment

a) Issue preclusion does not apply to issues that were not necessary to the judgment as such
issues are generally not appealable. [Restatement (Second) of Judgments, § 27, comment h]

b) When alternative issue determinations support the judgment, preclusion is also inapplicable
since the judgment is not conclusive with respect to either issue standing alone.
(i) [See Restatement (Second) of Judgments § 27, Comment (i)]
(ii) However, the Restatement regards such determinations as preclusive if both
grounds are affirmed on appeal.

4. Fairness
a) Issue preclusion in a given case may be deemed unfair where:
(i) it was not sufficiently foreseeable at the time of the initial action that the issue
would arise in the context of a subsequent action; or
(ii) the party sought to be precluded did not have an adequate opportunity or
incentive to obtain a full and fair adjudication in the initial action. [Restatement
(Second) of Judgments § 28(5)]

5. Nonmutual Preclusion Doctrine

a) Under due process principles, a stranger to a litigation cannot be bound by its judgment.
(i) However, strangers to a prior litigation may be able to invoke issue preclusion
against those who were parties, unless it appears unfair to do so (the “nonmutual
preclusion” doctrine).

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b) Allows a new party to invoke issue preclusion against a party who litigated and lost on an
issue in a prior action
(i) Defensive nonmutual issue preclusion
Suit 1: P1 D1

Suit 2: P1 D2
 D2 seeks to prevent P from asserting issue that P has previously litigated
and lost against another D
 “Defensive use of *issue preclusion+ precludes a *P+ from relitigating
identical issues by merely ‘switching adversaries.’ Thus defensive collateral
estoppels gives a [P] a strong incentive to join all potential [Ds] in the first
action if possible.” (pg. 338)

(ii) Offensive nonmutual issue preclusion

Suit 1: P1 D1

Suit 2: P2 D1

 P2 seeks to “borrow” a finding from a prior action to impose liability on a

party who was a D in prior action
 Offensive issue preclusion does not promote judicial economny like
defensive use does.

 Parklane Hosiery v. Shore (pg. 335)

 “The general rule should be that in cases where a *P+ could easily
have joined in the earlier action or where… the application of
offensive estoppels would be unfair to a [D], a trial judge should
not allow the use of offensive collateral estoppels.” (pg. 339)
 Use of offensive issue preclusion does not violate party’s Seventh
Amendment right to a jury trial

c) Restatement (Second) of Judgments § 29 makes clear that issue preclusion is unavailable if

the party who would be bound “lacked full and fair opportunity to litigate the issue in the
first action or other circumstances justify affording him an opportunity to relitigate the

XIII. Law of the Case and Stare Decisis

A. Law of the case
1. Court, in same case, has determined an issue, can’t relitigate it
2. Applying same law, on same issue later in the case (see pg. 351)
3. Examples:
a) Judge ruled case should proceed on merits, then party files motion for summary judgment
on the grounds that nonmoving party’s case has no merit – law of the case applies and
summary judgment motion should be defeated
b) Appellate court’s ruling on interlocutory appeal binds the trial court on remand

B. Stare Decisis
1. Law of precedent
2. Applied to new parties

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3. A lower court may not disregard (although it may distinguish) a legal holding of a court directly
above it, but a court may reconsider and overrule its own precendent

XIV. Joinder
A. Claim Joinder [FRCP 18]
1. FRCP 8(d)(2) presupposes you can bring multiple claims in a lawsuit
a) Provides that D can assert as many defenses as he or she has to P’s claims

2. FRCP 18 allows a party who has made a claim against another to join further claims with it
against the same opponent.
a) It authorizes claim joinder without limitation, regardless of whether the claim to be joined
is related to the pre-existing claims or not, as long as the joined claim satisfies subject
matter jurisdiction requirements.
b) Permissive, not mandatory
(i) Plaintiffs are free to assert fewer than all claims
(ii) When claims are unrelated, P can bring omitted claims in a separate lawsuit
(iii) When the claims are transactionally related, the law of preclusion might prevent P
from asserting additional claims in a second case after the first case goes to

B. Counterclaims [FRCP 13]

1. A party may assert a counterclaim against one who previously asserted a claim against him/her.
Counterclaims may be compulsory [FRCP 13(a)] or permissive [FRCP 13(b)].

2. Compulsory Counterclaims [FRCP 13(a)]

a) Painter v. Harvey (pg. 363)
(i) P: Sec. 1983 claim (federal question)
(ii) D: counter-claim for libel (state question)
(iii) If the counter-claim is compulsory, it is within the ancillary (supplemental)
jurisdiction of the court to entertain and no independent basis for federal
jurisdiction is required
(iv) If the counter-claim is permissive, it must have its own independent jurisdictional
(v) Four inquiries to determine if a counter-claim is compulsory (pg. 365):
 Are the issues of fact and law raised in the claim and counter-claim largely
the same?
 Would claim preclusion bar a subsequent suit on the party’s counter-
 Will substantially the same evidence support or refute the claim as well as
the counter-claim?
 Is there any logical relationship between the claim and counter-claim?
 Underlying thread = evidentiary similarity
 Not mandatory test, discretionary standard
 See also: FRCP 13(a)(1)(A) regarding compulsory counter-claims

b) A claim that arises out of the same transaction or occurrence as the subject matter of the
opposing party’s claim must be asserted in the present action or is forever barred

c) Most federal courts interpret “arises out of the transaction or occurrence that is the subject
matter of the opposing party’s claim” as being logically related to the underlying claim. (See
pg. 373 of Alexander v. Fulton County)

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d) Compulsory counterclaims fall within the court’s supplemental jurisdiction and thus require
no showing of independent grounds for subject matter jurisdiction.

3. Permissive Counterclaims [FRCP 13(b)]

a) Any claim against an opponent that does not arise out of the same transaction or
occurrence as the opponent’s claim is permissive in nature.

b) Failure to assert it does not bar its assertion in a subsequent litigation.

c) Generally, permissive counterclaims fall outside the court’s supplemental jurisdiction.

C. Cross-Claims [FRCP 13(g)]

1. A party may assert a claim against a co-party – a cross-claim – arising out of the transaction or
occurrence that is the subject matter of:
a) The original action
b) A counterclaim
c) Relating to property that is the subject matter of the original action.

2. Cross-claims are limited to the same transaction

3. Cross-claims are generally within federal courts’ supplemental jurisdiction.

a) One may either plead a cross-claim or reserve it for further litigation; cross-claims are never
compulsory under FRCP 13(g).

D. Joinder of Parties
1. Permissive Joinder [FRCP 20]
a) FRCP 20 permits joinder of plaintiffs or defendants provided that the claims joined to bring
multiple parties into the lawsuit:
(i) arise from the same transaction or occurrence; and
(ii) have a common question of law or fact.
(iii) 4-factor inquiry of Painter v. Harvey often applied

b) Additional defendants to be joined must meet the requirements of personal and subject
matter jurisdiction, as supplemental jurisdiction does not apply to such claims.
(i) Thus, in a diversity action, joinder of additional defendants must not destroy
complete diversity among the parties.
(ii) The jurisdictional amount must also be met by each defendant individually; such
claims cannot be aggregated.

c) Alexander v. Fulton County (pg. 371)

(i) Claims of racial discrimination by 18 current and former employees of the sheriff’s
(ii) A party seeking joinder of claimants under Rule 20 must establish two
prerequisites [FRCP 20(a)]:
 A right to relief arising out of the same transactions or occurrences
 Some (not all) question of law or fact common to all persons seeking to be

2. Compulsory Joinder [FRCP 19]

a) FRCP 19 compels joinder in certain circumstances where the adjudication of pending claims
will be compromised without the involvement of the party sought to be joined.
(i) FRCP 19(a) provides a framework for determining whether the party is
“necessary” to the action.

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(ii) A necessary party must be joined if feasible.
(iii) If joinder is not feasible, a court must determine, pursuant to FRCP 19(b), whether
the person’s non-involvement will be so detrimental that the case cannot proceed
without the person.
(iv) Such parties are deemed “indispensable.”

b) Necessary Parties
(i) FRCP 19(a) sets forth the circumstances under which a party is deemed
 if complete relief cannot be accorded among existing parties in his
 the absent party’s ability to protect his interest relating to the subject of
the action and, if so, whether it may be impaired or impeded without his
involvement in the action;
 disposition of the action in his absence may subject existing parties to a
“substantial risk of incurring double, multiple, or otherwise inconsistent

(ii) So long as joinder is feasible, a necessary party must be joined in order for the
lawsuit to continue.
 If one sought to be joined as a plaintiff does not join voluntarily, under
limited circumstances, the court may compel such party to join, making the
party an “involuntary plaintiff.”

c) Feasibility of Joinder
(i) However necessary a person might be to the lawsuit, he will not be joined unless it
is feasible to do so.
 Joinder is feasible only if he is subject to the personal jurisdiction of the
court, and his joinder “will not deprive the court of jurisdiction over the
subject matter of the action.”
 FRCP 19(a) furthermore excuses an involuntarily joined party from the case
if he “objects to venue and *his] joinder . . . would render the venue of the
action improper.”

d) Indispensable Parties
(i) When it is not feasible to join a party, the court may determine the party
indispensable to the action, pursuant to FRCP 19(b).
(ii) If the party is deemed indispensable, the action will be dismissed.
(iii) The four factors that determine whether a party is indispensable [FRCP 19(b)]
 Prejudice: the extent to which a judgment rendered in the party’s absence
might be prejudicial to the party or existing parties;
 Shaping of relief: the extent to which the prejudice can be lessened or
avoided by protective provisions in the judgment, by the shaping of relief,
or other measures;
 Whether a judgment rendered in the party’s absence will be adequate; and
 Adequate remedy: whether the plaintiff will have an adequate remedy if
the action is dismissed for nonjoinder

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e) Makah Indian Tribe v. Verity (pg. 388)
(i) Makah (P) challenges gov’t ruling on fishing quota and regulatory process
(ii) Court determined that it could not grant relief without other 23 tribes absent from
the suit
 Those tribes had sovereign immunity and could not be joined unless they
waived that immunity
(iii) Court determined the other tribes were necessary and indispensible to the suit

XV. Third-Party Practice (Impleader) [FRCP 14]

A. Nature of Third-Party Practice
1. Impleader is a device by which a defendant can join a third party who may either share or be
legally responsible for defendant’s liability to plaintiff.

2. In this capacity, defendant becomes a third-party plaintiff, the added party becomes a third-party

3. The defendant, as a third-party plaintiff, may also join other claims against the third-party

4. Impleader furthermore makes available to the third-party defendant all the options available to
defendants, e.g.,
a) counterclaims
b) cross-claims
c) impleader of yet additional parties that could be fully or partially responsible for any liability
the third-party defendant is found to have to the original defendant

5. Lehman v. Revolution Portfolio (pg. 377)

a) D = Bank / FDIC / Revolution
b) FDIC sought leave to implead Roffman
c) 3 -party complaint contained three counts:
(i) Indemnification (impeaded under FRCP 14(a))
(ii) Contribution (impeaded under FRCP 14(a))
(iii) Judgment against Roffman as loan guarantor (pay back loan balance) (impeaded
under FRCP 18(a))
 D “standing in the shoes of a P” as 3 -party P can add claims under FRCP
18, which gives them broad rights as a P
 These claims allowed by court on top of contribution and indemnification

6. Asher v. Unarco (pg. 382)

a) Asher (P) sued Unarco and Atlas
b) Atlas impleaded RCI
c) Unarco asserted cross-claims against (Atlas and) RCI
(i) Rule 13(g) cross-claims between co-parties are noncontroversial (between Unarco
and Atlas)
(ii) Cross-claim between Unarco and RCI is controversial because you have an original
D filing against another party’s 3 -party D
d) Rule: “[I]t does not appear that a cross-claim between a [3 -party D] and an original [D] is
permissible unless [P] has also brought a claim against the [3 -party D] under Rule 14(a)(3).
Once [P] brings such a claim, the [3 -party D] and original [Ds] are co-parties within the
meaning of Rule 13(g) because they share ‘like status.’ Thus, the *3 -party D] can then bring
‘any cross-claim under Rule 13(g).”

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B. Requirements for Impleader
1. Under FRCP 14, a claim sought to be impleaded must:
a) Have arisen out of the same transaction or occurrence as the original plaintiff’s claim; and
b) Be contingent or derivative; i.e., a nonparty who is or may be liable to defending party for all
or part of the claim [FRCP 14(a)]

2. Common Theories of Contingent or Derivative Liability

a) Indemnity – A right to indemnification either arises out of an express contractual provision
whereby one party agrees to indemnify (“hold harmless”) another for certain liabilities, or by
implication when a person without fault is held legally liable for damages caused by the fault
of another.

b) Contribution – The right of contribution typically arises among joint tortfeasors, two or more
persons who are jointly or severally liable in tort for the same injury.

c) Subrogation – Subrogation is the succession of one person to the rights of another. Often a
subrogee is an insurer that has compensated an insured for an injury resulting from the
negligence of a third-party.

d) Warranty – A warranty is an express or implied statement or representation typically made

by a seller to a buyer or others in the chain of product distribution regarding the character of
or title to the product.

XVI. Intervention [FRCP 24]

A. In general
1. FRCP 24, provides a means for outsiders to join a lawsuit on their own initiative.
2. Intervention may be of right under Rule 24(a) or permissive under Rule 24(b).
3. In either case, there is no supplemental jurisdiction over claims.
4. Intervention is not mandatory.

B. Intervention of Right [FRCP 24(a)]

1. Intervention of right does not require court permission if four conditions are met:
a) Timely
b) Substantial legal interest
(i) The intervenor claims an interest relating to the property or transaction which is
the subject of the action
c) Impairment
(i) The intervenor demonstrates that the lawsuit carries a possibility of significant
detriment to the intervenor
d) Inadequate representation
(i) There is a substantial possibility that none of the present parties will adequately
represent the intervenor’s interest.
(ii) However, when the applicant’s stake in the outcome is no greater than that of an
existing party with whom the applicant would be aligned, and
(iii) When that existing party is not in collusion with an opposing party, incompetent,
or hostile toward the applicant,
(iv) Representation by the existing party often will be deemed adequate and
intervention of right will be denied.

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2. Grutter v. Bollinger (pg. 395)
a) Two cases (consolidated) in which proposed defendant-intervenors were denied
b) Actions brought against U of M contesting use of applicant’s race as a factor in determining
c) Holding: Proposed intervenors only required to show that representation might be

C. Permissive Intervention [FRCP 24(b)]

1. If one does not qualify to intervene as of right, he may petition the court to do so under FRCP
a) Broad discretion by court in granting / denying these motions.
b) Many of these motions are denied

2. The claim or defense must have a question of law or fact in common with the pending action.

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