CIVIL PROCEDURE - OUTLINE PROF.

HUGHES Table of Contents

Heading Page # I. An Overview of Procedure1 II. The Constitution and Choice of Law (Erie)...1
B. The Erie Problem...1 C. Post-Erie Cases. 3

III. Pleading...5
A. The Complaint ..5

IV. Ethical Limitations

A. Rule 11 Cases B. Special Claims: Requiring, Forbidding Specificity in Pleading C. Allocating the elements

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7 7 7

V. Defenses and Objections

A. Rule 8: General Rules of Pleading B. Rule 12: Motions C. Reply D. Amendments

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8 8 9 9

VI. Discovery
A. Modern Discovery B. The Possibilities and Limits of Discovery C. Surveying Discovery: Procedures and Methods D. Discovery and Privacy E. Discovery in an Adversary System F. Controlling Abuse of Discovery

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10 10 12 14 15 15

VII. Resolution without Trial

A. Default Judgment B. Involuntary Dismissal C. Summary judgment D. Judicial Management of Litigation

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16 16 17 18

VIII. Trial
A. Limits of Rational Inference B. Procedural Control of Rational Proof C. Controlling Juries before Verdict D. Controlling Juries after Verdict

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18 18 19 19

IX. Personal Jurisdiction

A. Specific Jurisdiction B. Specific Jurisdiction: The Modern Cases C. General Jurisdiction D. Consent as a Substitute for Power E. Constitutional Requirement of Notice F. Venue

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19 21 23 23 24 24

I. An Overview of Procedure
A. Why do we have procedure?
1. Procedure is partly the rules/etiquette of lawsuits 2. It also reflects our desire for peace and regularity

B. Types of jurisdiction
1. Subject Matter Jurisdiction Overview - Subject Matter Jurisdiction 1. Limited jurisdiction: small claims, tax a. All federal courts have limited jurisdiction i. Jurisdiction is limited by Art. III, 2 of the Constitution ii. Also limited by Title 28 (the Judiciary Code) iii. Only arising under the Constitution or diversity claims 2. General; circuit, district, common pleas, etc. a) Diversity occurs when parties are residents of different states: it must be alleged and proved. 2. Personal Jurisdiction Rule 4(k)(1)(A) Personal Jurisdiction If plaintiff can gain personal jurisdiction over someone in a court of general jurisdiction in the state in which the district court is located, he can do so in that district court as well.

II. The Constitution and Choice of Law (Erie)

1. Article VI: Constitution and federal laws are The Supreme Law of The Land; and the Judges in every State shall be bound thereby. 2. Rules of Decision Act: In absence of a controlling federal statute, the federal court system is required to respect statutes, common law of states.

B. The Erie Problem

1. First judiciary established fed. diversity jurisdiction (28 U.S.C 1652) 2. Swift v. Tyson (N.Y. Fed. Ct. 1841) (Story) a) Bill of exchange: sought to be collected on. b) ROL: Deduce the doctrine from general principles of federal law- anti-Erie. A charter of judicial independence from state common law. Favored business interests. c) Laws are more usually understood to mean the rules and enactments promulgated by the legislative authority thereof. d) Problem with Swift: failed to create the uniformity that Story desired. Instead, created different standards based on jurisdiction, and forum-shopping. The Erie Problem: When federal court is hearing case solely based on diversity jurisdiction, and when there is no controlling federal or state statute, should court apply a general federal standard or the common law standard of the state? 1

The Swift v. Tyson Standard: 1. Federal courts should deduce doctrine from general principals of federal law. 2. The courts should basically create a federal common law. 3. Problem: Applying a federal common law creates forum-shopping between state, federal court because of difference in standard applied. 3. Holmes Attack on Erie a) There is no Law apart from authority that creates it. The federal common law cannot exist without authority behind it. b) Example of forum-shopping: Black & White Taxi Cab Co. v. Brown and Yellow Taxi Cab. Co.: KY case, removed to fed. court. 4. Erie Railroad v. Tompkins (S.Ct. 1938) (Brandeis) a) P severed arm by train on way back from mom-in-laws house. Q: between wanton negligence (state common law standard) or general federal standard. b) S.D.N.Y. applied Swift, ruled for federal common law general negligence standard instead of the willful and wanton negligence standard set forth by the Penn. S.Ct. c) S.Ct.: reversed and remanded. d) When finding the law pertaining to the case, courts must look to the authority for making such law (viz., the state court). (1) Fed. Cts. must honor state-made rights and obligations e) Brandeis three problems with Swift: (1) Failure to create desired uniformity of common law (2) Failure in equal protection: forum-shopping favored out-of-state D. (3) Quoting Holmes, an unconstitutional assumption of powers by courts of the United States No power of federal courts to create common law standards. No transcendental body of law outside state. Erie Doctrine: In Federal courts, where jurisdiction is founded solely on matters of diversity, matters of substance are to be founded on state law, whether statutory or common. Whether the law of the state shall be declared by its legislature in a statute or by its highest court in a decision is not a matter of federal concern. f) Reeds concurrence: line between procedural and substantive is hazy, but no one doubts federal power over procedure. (1) Should only have disapproved of Swift insofar as to make common law decisions of courts applicable to federal courts sitting in diversity jurisdiction.

C. Post-Erie cases
1. Guaranty Trust Co. v. York (U.S. 1945) (Frankfurter) a) Ps York sued bond trustee alleging misrepresentation and breach of trust. New York substantive law governed. Defendant (Guaranty/appellant) invoked statute of limitations in New York. b) S.D.N.Y.: states statute of limitations does not apply. c) Avoidance of question of substantive v. procedural law. The Outcome-Determinative Test: In all cases where a federal court is exercising jurisdiction solely because of the diversity of citizenship of the parties, the outcome of the litigation in the federal court should be substantially the same, so far as legal rules determine the outcome of a litigation, as it would be if tried in a State Court d) Glannon: York and Cities Service Oil stretch the Erie doctrine beyond its constitutional necessities (there were constitutional federal procedural rules for such cases, so why resort to state law?) e) However, there is the need to balance interests between state and federal interests. 2. Byrd v. Blue Ridge Rural Electric Cooperative (1958) (Brennan) a) Plaintiff sued defendant for injury on the job. Defendant alleges that as an employee, the plaintiff needed to go through avenues of the S.C. WCA, and thus was immune from tort actions. b) Reversed and remanded: Strong federal policy against disrupting the judge/jury relationship in the federal courts and allowing juries to decide questions of fact (7th amendment). c) If the likelihood of difference in outcome between state and federal law is small, then federal standard/law should apply. d) A matter of form and mode, not of rights and obligations. Byrd: Because the federal judiciary is independent, it must act independently according to its custom, viz., to assign the jury the power to decide the factual matter of a case in a civil trial. 3. Hanna v. Plumer (1965) (Warren) a) Reframes the Erie issue as statutory rather than constitutional b) D. Ct., 1st Circuit court citing Ragan dismissed case because P had failed to comply with state method of serving process. Hanna v. Plumer 1. Rule 4(d)(1) allows summons and complaint to be left with a competent adult at residence of the defendant. (Mass. service of executor of estate). 2. Hanna I: Federal Rule governs if it is arguably procedural (does not abridge, enlarge, or modify substantive right). 3. Hanna II: Federal Judicial Practice: governs if it wouldnt create substantial differences in forum-shopping or inequity. c) Supreme Court took case because of the threat to the goal of uniformity of federal procedure posed by the lower court. 3

d) Congress has power over procedural matters with respect to the federal courts. Because Congress has set the rules of civil procedure for federal courts and because those rules are constitutional, Fed.Cts. must follow. 4. Semtek Intl. Inc. v. Lockheed Martin Corp. (2001) (Scalia) a) P filed for breach, business torts in Cal. state court, removed to federal courts. Dist.Ct. dismissed for expires statute of limitations. b) P brought suit in MD state court, then removed to MD D.Ct. c) Adjudication on the merits sometimes means judgments that do not pass on the substantive merits of the claim. d) If the Rule 41 (b) operated as indicated by the respondents, it would violate the Erie holding by creating substantial differences between state and federal litigation. Semtek: 1. Rule 41 (b) - Any dismissal constitutes an adjudication of merits. 2. However, because federal court was sitting in diversity, and because a CA court could not compel MD court to observe statute of limitations, Hanna dictated that to avoid forum-shopping, the federal court, on a diversity issue involving state law, cannot force a MD court to observe that statute. 3. This is necessary to prevent forum-shopping. Spectrum of Erie analysis apply state law apply state law rights and obligations created by state law (Erie) form and mode where outcome likely to be affected (York)

apply federal law form and mode outcome affected but strong fed. interest (Byrd)

apply federal law form and mode outcome not Likely to be affected (Hanna)

Analysis of Conflicts between State and Federal Procuedre in diversity cases 1. Conflict between U.S. Constitution and State Law (Byrd) a. U.S. Constitution trumps 2. Conflicts between a Federal Statute and State Law a. If Fed. Statute is procedural, then it trumps 3. Conflict between F.R.C.P. and State Law a. F.R.C.P. applies if valid (see Semtek, see Hanna II) 4. Conflicts between a Federal Judicial Practice and State Law a. Choose the state rule if it would be outcome-determinative.

III. Pleadings
Rule 4 Service of Process Five Methods of Summons (Summons and Complaint): 1. Give summons to an agent 2. Leave with adult 3. Serve Person personally 4. Serve according to laws of forum state 5. Serve according to state where service is happening Rule 4(a) 1. 1A Notice of Action (2 copies), Request of Waiver Service of Summons 2. 1B Waiver of Service of Summons (accompanied by complaint) 3. Good cause must be shown for failure to waive (or pay cost of service). 4. 60-day period to respond to complaint (larger than 20 day normal period). Must respond to waiver request in reasonable time. Rule 7 - Pleadings Allowed, Form of Motions (a) Pleadings - A complaint and an answer - Reply to a counterclaim - Answer to a cross-claim - 3rd party complaint, answer - No others, except if court demands reply (courts discretion). (b) Motions and other Papers a. Application to the Court b. Made in writing (unless during trial) c. State particularity of ground for motion d. State relief sought Rule 8 - General Rules of Pleading (a) Claims for Relief (b) a short and plain statement of the grounds on which the courts jurisdiction depends, (c) A short and plain statement of the claim showing that the pleader is entitled to relief, and (d) A demand for judgment for the relief the pleader seeks.

A. The Complaint
1. Notice Pleading: A Claim must a) Invoke a body of substantive law b) Sketch factual scenario, if proven true, falls in body of law. c) Allege jurisdiction 2. Complaints fail because: a) Inept statement of the facts b) Failure to state facts on which relief can be granted. c) Unsound service of process. 5

IV. Ethical Limitations

Rule 8(e) - Pleading to be Concise and Direct; Consistency 1. Each averment shall be simple, concise, and direct 2. Party may set forth two or more claims alternately or hypothetically. - Valid despite inconsistencies (as many as necessary). - All statements subject to the obligations in Rule 11. Rule 11 - Signings of Pleadings, Motions, Others; Reps. to Court; Sanctions (a) pleading and written motions must be signed by attorney. (b) Representations to the Court. Atty. states to best of knowledge: (1) Not for improper purpose (2) Claims, etc. warranted by existing law or by a non-frivolous argument for extension, etc. (3) Evidentiary support or likely to have such (4) Denials of factual contentions are based on evidence or reasonable belief. (c) Sanctions a. After notice and reasonable opp. To respond, court may impose sanctions if 11(b) has been violated (1) How Initiated (a) By separate motions for sanctions (i) Describe specific alleged conduct (ii) Served according to Rule 5 (iii)21 days to withdraw or correct (iv) Court may award reasonable expenses and attorneys fees incurred in presenting/opposing the motion. (v) Firm responsible for employees (b) On courts initiative (i) Court may enter an order describing conduct that violates 11(b) (ii) Party then directed to show cause why 11(b) has not been violated. (2) Nature of Sanctions; Limitations Sanctions limited to deter similar conduct. Sanctions may be nonmonetary, payment of reasonable attys. fees, penalty to court. (a) No momentary sanctions for 11(b)(2) (b) Monetary sanctions not awarded on court init. unless opp. to withdraw not taken (3) Order (a) when imposing sanction, court shall explain violation and basis for sanction. (d) Inapplicable to Discovery 6

A. Rule 11 Cases
1. Walker v. Norwest Corp. (8th Cir. 1996) a) Failure to allege complete diversity jurisdiction. b) D. Ct. - Rule 12(b)(1) motion dismiss, lack of jurisdiction. c) Rule 11 (b)(2): The atty. for P did not know the law; the claim was not warranted by existing law. d) Atty. could have used safe harbor provision to withdraw under 21-day safe harbor provision. e) Rule 11(c)(2): cannot be sanctions against party 2. Christian v. Mattell, Inc. (9th Cir. 2003) a) Barbie doll case. b) Ps attorney brought frivolous action, given time to withdraw claim under Rule 11 (b)(2) - failure to conduct reasonable inquiry. c) D awarded $501,565 in attys. fees. d) Remanded: Rule 11 sanctions, non-Rule 11 acts (discovery).

B. Special Claims: Requiring, Forbidding Specificity in Pleading

Rule 9 - Pleading Special Matters b) Fraud, Mistake, Condition of the Mind (1) Claims of fraud or mistake made with particularity (2) Conditions of mind (malice, intent) averred generally e) Time and Place: treated like any other material matter f) Special Damages: must be specifically stated 1. Stradford v. Zurich Insurance Co. (S.D. N.Y. 2002) a) Rule 15(a) ability to amend freely when justice requires. b) Rule 9(b) claims for fraud must be stated with particularity. c) P is a dentist in Staten Island, failed to pay insurance premiums. Filed for damages against insurance company. d) Counterclaim for fraud by D against P. Hightened standards of pleading for fraud because of the tendency of the charge to damage the accused, regardless of its validity. P moved to dismiss counterclaim on grounds of lack of particularity. e) However, Ds counterclaim lack specificity of date, time, and place. Ds counterclaim dismissed. f) However, leave to amend, summary judgment for Ds. 2. Leatherman, Swierkiewicz v. Sorema a) Expresio unius exclusio alterius. b) Discrimination case: moral turpitude, reply to the denial in the answer. Reply had to have particulars.

C. Allocating the Elements

1. Triad of Burdens a) Burden of pleading (alleging) b) Burden of production (producing evidence) c) Burden of persuasion (persuading trier of fact) 2. Gomez v. Toledo (S.Ct. (1980)) 7

a) P.R. police. Charged with wiretapping, fired without hearing. b) P brought action against D, the Superintendent of the P.D.P.R. c) Respondent then moved to dismiss the complaint for failure to state a cause of action because of Ds immunity. d) Under 1983, there is no requirement to allege bad faith. Burden of pleading an affirmative defense of immunity is on D.

V. Defenses and Objections

A. Rule 8: General Rules of Pleading
Rule 8(b) - Denials a. only deny part which D contests (must give P notice of defenses) Rule 8(c) - Affirmative defense a. Admission and avoidance. b. Any matters constituting an avoidance or affirmative defense. Rule 8(d) - Specific denial a. aspects not denied are taken as true

B. Rule 12: Motions

1. A request to the court for an order (consists of): a) Motion itself (request) b) Notice of the motion c) Affidavits or other factual documents necessary. d) Factual memo that includes reason for the motion e) Proposed Order for the judge to sign if he so chooses. Rule 12 Motions Rule 12(a) Answer a. (1) Answer given within 20 days b. (4) Answer given 10 extra days after motion Rule 12(b)(2) motion for dismissal for lack of justification Rule 12(b)(6) - motion to dismiss for failure to state claim on which relief can be granted a. legal question: cheap, easy way to end a case quickly. Rule 12(c) - Motion for Judgment on the Pleadings a. ability to supply paper evidence b. ability for plaintiff to move for summary judgment c. no dispute on facts: judge can decide because there is no use for a jury. d. P has not shown that D is liable. Rule 12(e) motion for more definite statement (not specific, compl. enough for answer) Rule 12(f) - motion to strike a. strike punitive damages, aspects of claim that are not applicable Rule 12(h)(1) least favored: brought up in answer, not at all (personal jurisdiction, improper venue, insufficient process, insufficient service process) (one place, one time) Rule 12(h)(2) - defense for failure to state a claim upon which relief can be granted a. Can be brought through trial. b. Also, failure to join a party under Rule 19 Rule 12(h)(3) - dismissal for lack of subject matter jurisdiction (any time). Motions can be included in answer, except for motions for clarifications. 8

2. Haddle v. Garrison a) 1985 case because of Ps termination from D corp. because of cooperation with a federal investigation. b) Rule 12(b)(6) motion for failure to state of claim on which relief can be granted (P an at-will employee, no property interest). c) S.Ct.: irrelevant whether at-will employee or not because of still protected property interest, so motion failed. 3. Zielinski v. Philadelphia Piers, Inc. (E.D. Pa. (1956) a) Rule 8(b): Deny only parts that it actually contends. b) PPI sells to CCI Other forklift had initials P.P.I. on it. PPI answered in interrogatories that it did not operate the forklift. c) P could not sue CCI because statute of limitations had run out . d) Equitable estoppel: a change of position (since the time of the answer) such that the party who is changing needs to be stopped. e) Because D did not deny specifically in right places, court ruled D did own forklift, employed driver, and admitted both. 4. Layman v. Southwestern Bell Telephone Co. a) Defense of easement by previous owner to SWBC. b) At trial, P objected to introduction of easement evidence, as it is an affirmative defense, which was not set out in response by D. c) Rule 8(c) avoidance, affirmative defense. d) Ejusdem generis: when a list is not exhaustive, other matters have to be something of same type as those already on the list. e) D adding facts not included in those necessary to P complaint.

C. Reply
Rule 7(a) - Replies 1. A reply is necessary under Rule 7(a) if there is a counterclaim by D. 2. Replies occasionally come up to affirmative defenses, but are not required under Rule 7(a). They can be mandated by the court.

D. Amendments
Rule 15 - Amendments 1. Rule 15(a) May amend: any time before a response of pleading is served a. Or within 20 days if no response permitted. b. Otherwise: i. Only by leave of court (leave given when justice so requires) ii. or with written consent of adverse party. 2. Rule 15(c) Relation Back of Amendments a. Relation back permitted by law providing statute of limitations or b. Claim or defense asserted in amended pleading arose out of conduct, occurrence set forth or attempted in original pleading, or c. The amendment changes the party or the naming of the party against whom a claim is asserted if the foregoing provision is satisfied and, within the period provided by Rule 4(m) 9

1. Beeck v. Aquaslide n Dive Corp. (8th cir. 1977) a) Waterslide: realization two years after complaint that slide was not made by D. Inspection by insurance co., finally, by pres. of co. b) D - leave to amend pleadings, leading to sum. judgment for D. c) Rule 15(a): amendments are to be freely given when justice requires. Except when bad faith, undue delay, etc. d) Possible rule 11(b) violation: lack of reasonable inquiry. 2. Moore v. Baker (11th Cir. 1993) a) P: medical malpractice for failure to advise of alternative remedies. After motion for summary judgment by D, P moved to amend complaint to assert allegations of negligence. Wants relation back under Rule 15(c). However, the amendment was not foreseeable and rose out of a completely different series of facts (during and after the surgery) than the original complaint. 3. Bonerb v. Richard J. Caron Foundation (W.D. N.Y. 1994) a) D is non-profit rehab facility in Westfield, PA. b) Original complaint filed by P alleges that P was injured while a rehab patient at Ds facility. Negligent maintenance of court by D. c) Court granted Ps motion for new counsel. d) Later, P moved to amend complaint to add cause of action for counseling malpractice. Relation back under Rule 15(c). e) Because arising out of the same facts and because of the timing (compared to Moore), relation back allowed.

VI. Discovery
A. Modern Discovery
1. Def: The court-mandated production of information from other parties and non-party witnesses (broad range). 2. Rule 26(b)(1) 26(a) (auto discl.) 30 (deps) 33 (inter.) 34 (prod.) 3. Lets parties to find merits, strengths of the opposing arguments. 4. One party can wear the other down because of time and money. 5. Primary changes in 2000 to rules of discovery a) Changes in required disclosures b) Narrowing of def. of material discoverable w/o judicial order c) Nnational restrictions on the number of interrogatories and depositions and length of depositions absent a judicial order. d) Set of changes designed to encourage judicial monitoring and possible cost-sharing of discovery. Rule 26(b)(1) The Rules giveth The broad scope of discovery 1. Allows parties to seek discovery, w/o court approval, regarding any matter a. not privileged b. relevant to the claim or defense of any party. c. Good cause may lead to even broader reach of discovery.

B. The Possibilities and Limits of Discovery

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1. Court may compel discovery of any matter relevant to the subject matter (Rule 37) (does not mean that it is admissible). Rules 16, 26 and 30 - Limits on Discovery The Rules Taketh Away Limits 1. Rule 16 Pre-trial hearing sets limits of discovery 2. Rule 26 privileged or irrelevant matters not subject to discovery. 3. Rule 26(c) limitations on discovery done to irritate, annoy, or in bad faith. 4. Rule 30(d) limitations on depositions done to irritate, annoy, in bad faith. 5. Rule 26(b) limitations because of irrelevance or encroaching on privilege. 6. Rule 26(b)(3) trial prep materials only available when party in substantial need of materials and is unable without undue hardship to get equivalent. (Work product limitations: See Hickman v. Taylor) 2. Davis v. Precoat Metals (N.D. Ill. 2002) a) Ps motion seeks discrimination complaints made against D by non-clerical/non-administrative employees (same groups). b) Courts can limit unreasonably cumulative or duplicative discovery, or if it can be obtained more easily. (Rule 26(b)(1) discoverable) 3. Steffan v. Cheney (D.C. Cir. 199n0) a) P refused to answer Qs in depositions regarding homosexual conduct and anything not pertaining to legality of his separation. b) Judicial review of admin. decisions limited to basis of ruling.

C. Surveying Discovery: Procedures and Methods

Rule 26 - Discovery 1. Rule 26(a)(1) Required Disclosures a. Parties must meet early in suit b. Within 14 days, parties must offer names of witnesses and descriptions of documents that the disclosing party may use to support its claims or defenses, as well as calculations of damages, copies of insurance agreements. c. Parties request more info. via depositions, interrogatories, etc. 2. Rule 26(f) Pre-trial meeting a. Need for parties to meet each other, submit lists of disclosure. 3. Rule 26(a)(1)(E) Exemptions from Discovery a. Large cases mean judge monitors more closely, disclosure exempt. b. Small cases may be exempt from disclosure. 4. Rule 26(d) Timing and Sequence a. Discovery may not take place until meeting required by Rule 26 (f). 1. Asking questions: Interrogatories and depositions a) Rule 33: Interrogatories (propounder/recipient) are cheaper, but may not yield details, must ask permission for more than 25, and non-parties need not answer; still must be under oath.

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Rule 34 - Production of Documents; Entry on Land 1. Party can request production of any document within scope of Rule 26(b). 2. Permits inspection of land and objects, documents 3. Records, documents are usually the backbone of a case. 4. Party (Rule 34) v. Non-Party(Rule45(a)(1)(C) subpoena) 5. No limits on volume of documents requested 6. Overbroad v. overly narrow requests (parties construe narrowly) Rule 35 - Physical and Mental Examination of the parties 1. Requires special application to the court and showing of good cause. b) Rule 30: Depositions with lawyers, in offices, answer all unprivileged questions, need permission for more than 20 nonparty deps., written depositions (Rule 31) 2. Rule 36: Requests for Admission a) Party may request an admission in writing of any matters within the scope of Rule 26(b)(1) - disclosures.

D. Discovery and Privacy

Rule 26(c) - Protective Orders 1. good cause standard that 2. movant has, in good faith, conferred or tried to confer with other party, 3. either party or person from whom discovery is sought 4. protection from annoyance, embarrassment, oppression, undue burden. 5. Protective order with respect to: a. Disclosure or discovery not be had. b. Depositions can be sealed after filing c. and thereafter opened only by the courts. Penalties for Non-Compliance in Discovery Rule 26(g) 1. Suggests attorneys fees will be appropriate sanction in most instances. Rule 37: Failure to cooperate in discovery 1. Courts may compel discovery (after parties motion under Rule 37(a)(2). 2. Courts may institute penalties of awards, fees, sanctions, dismissal, default judgment. 3. Parties must attempt to confer with other party before filing Rule 37. 1. Stalnaker v. Kmart Corp. (D. Kan. 1996) a) P - sexual harassment, hostile work environ. against Kmart. b) D: sexual histories of deposed employees not relevant to case. c) Protective orders prohibiting certain discovery or limiting scope of discovery to certain matters in Rule 26(c)(1) and (4). d) Burden of proof is with party trying to obtain protective order. 2. Schlagenhauf v. Holder (U.S. 1964) a) Greyhound/driver case. b) Rule 35 Applies to all parties, which should include D. c) Good cause and in controversy aspects not shown d) Movant must show that each element to be examined is in controversy and there is good cause to make such an examination.

E. Discovery in an Adversary System

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Expert Information 1. Rule 26(a)(2): Requires information about experts who may testify and about basis for testimony, requirement that adversary receive a written report prepared and signed by witnesscontaining a complete statement of all opinions to be expressed and reasons (90 days pre-trial) 2. Rule 26(b)(4): A party may discover facts known or opinions held by an expert who has been retainedby other party in anticipation of litigation only as provided in Rule 35(b) or upon a showing of exceptional circumstances that info cannot be obtained otherwise. (non-testifying) Privilege 1. Rule 26(b)(1): Protects privileged communications from discovery (atty., priest, doctor, psychologist, reporter?, teacher?) a. Upjohn: privilege applies between corporate counsel, employee 2. Rule 26(b)(5): Party claiming privilege to describe nature of the documents, communications or things not produced or disclosed in a manner that will allow parties to assess, applicability of privilege.

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1. Hickman v. Taylor (U.S. 1947) a) Tugboat sank. Motion to compel discovery of notes interviews by Ds attorney of men on other boats. b) Work-product not discoverable 2. Thompson v. The Haskell Co. (M.D. Fla. 1994) a) P alleged that as a result of sexual harassment by employee of D, P was reduced to depression and employment was terminated when she did not acquiesce to employees advances. b) P seeks to block from discovery psychologists documents. c) Rule: not discoverable through any other manner. 3. Chiquita Intl. Ltd. v. M/V Bolero Reefer (S.D.N.Y. (1994)) a) P alleges that D engaged to transport 154,660 boxes of bananas from Ecuador to Germany. Some boxes not delivered. b) Attempt to compel discovery under Rule 37. c) Rule 26(b)(4)(b) no discovery of facts known or opinions held by a non-testifying expert and so anticipates that such an expert may make his or her own investigation. Only by showing exceptional circumstances that info cannot be obtained otherwise. d) Info not exempt from discovery merely because conveyed to non-testifying expert. Could be obtained through other means.

F. Controlling Abuse of Discovery

Controlling Discovery 1. Rule 26(b)(1): Discovery of anything relevant to claims and defenses. Discovery of any matters relevant to the subject matter can be ordered by the court. 2. Rule 26(b)(2): limitations: court may place limit number of requests, excessive duplication, excessively burdensome. 3. Rule 26(g): Signing a. Attorneys have to sign disclosures, discovery requests, responses, or objections, signifying that i. They are not interposed for improper purpose ii. They are not unreasonable or unduly burdensome iii. They are consistent with rules and warranted by law or a good faith argument for extension, modification, or reversal. 1. Thompson v. Department of H.U.D. (Dist. Md. Ct. 2001) a) Ps are class representatives of Afr. Am. residents of Baltimores public housing developments. b) Motion by Ps to compel local Ds to provide responsive answers to Rules 33 and 34 discovery requests. c) Focus on burden/benefit factors of Rule 26(b)(2). d) Requests are too broad and need to be narrowed by a good faith analysis of which requests will be furthered by discovery sought. 2. Poole v. Textron, Inc. (D. Md. 2000) a) P sued D for alleged defects in a golf cart, leading to injury. 14

b) Ps motion for sanctions raising instances of discovery abuse, motion to compel production of documents, and motion to find sufficiency of answers and objections to requests for admission. c) Rule 37: Ct. shall require the party or deponent whose conduct necessitated the motionto pay the moving partyreasonable expensesincluding attorneys fees unless there was a lack of good faith effort by the movant to first obtain the documents. d) Rule 26(g)(3): court can award appropriate sanctions, fees.

VII. Resolution without Trial

Rule 55 - Default Judgments 1. After application of the P to the clerk (in cases in which sum is certain). 2. Or to the court 3. 55(c): setting aside a default judgment in showing of good cause. Rule 41(b) - Involuntary Dismissal 1. Failure to prosecute 2. Will operate as an adjudication on the merits Rule 60(b): 1. Allows the re-opening of the case after default judgment is entered. 2. Relief from judgment or order.

A. Default Judgment
1. Peralta v. Heights Medical Center (U.S. 1988) a) Appellee sued Appellant to recover $5600 due under appellants guarantee of a hospital debt of one of his employees. b) Personal, but untimely service of return. (1) Appellant did not appear or answer. c) Default judgment for amount claimed, attys fees, costs. d) Bill of review in TX courts to set aside default judgment and obtain relief. e) Rule 55 provides for default judgments against defendants who do not respond. f) 14th Amendment requires Due Process in seizure of property.

B. Failure to Prosecute: Involuntary Dismissal

Voluntary Dismissals 1. Rule 41(a)(1)(i) allows P to dismiss any time before D answers 2. Rule 41(a)(1)(ii) allows P to dismiss any time as long as both parties agree. 3. Rule 41(a)(2) after D answers, P can dismiss with permission of the Court.

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a) Possible abuses of 41(c) when significant procedural matters have been decided. b) Often in voluntary dismissal cases, P required to pay Ds fees. 2. Involuntary Dismissals a) Question of how lax a plaintiff must be before a judge should enter a dismissal for failure of the plaintiff to prosecute. b) Some states deal with such Ps by setting firm statutory limits in addition to allowing for judicial discretion.

C. Summary Judgment
Rule 56 - Making and granting motions for summary judgment 1. 56(c) Motions are to be granted when the record shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. 2. 56(e) Do statements have to be sworn to in first person, set out affirmatively? 1. Law responds to summary judgments only were there are not assessments of credibility, only in analyzing whether there is no disputed material fact and that moving party is entitled to judgment as a matter of law. a. Diff. from 12(b)(6): facts v. allegations, before/after disc. 2. Celotex Corp. v. Catrett (U.S. 1986) a. 9/80: Respondent started lawsuit alleging death of her husband resulted from exposure to products with asbestos. b. P needed to show that product was defective/dangerous, exposure to product, causation of problems by product. c. Rule 56 motion for summary judgment: failure to produce evidence that Pet.s product was prox. cause of injuries alleged. d. Motion for summary judgment granted because of lack of evidence submitted by respondent. 3. Bias v. Advantage International, Inc. (1990) a. P, parents directed D to get $1 mill. life insurance policy for P. b. P appeals granting summary judgment to D at District Ct. level.

c. Because the Estates generalized evidence that Bias was not a drug user did not contradict the more specific testimony of teammates who knew Bias well and had seen him use cocaine on particular occasions, the Dist. Ct. determined that there was no genuine issue that Bias was a drug user. D. Judicial Management of Litigation
1. Sanders v. Union Pacific Railroad Co. (9th cir. 1998) a) Ps counsel failed to comply with almost all of the requirements of the pretrial order (after pretrial conference). 16

b) Rule 16(b) allows judges to schedule motions, pleadings, amendments, discovery, modifications, conferences, trial, etc. c) Court did not abuse its discretion because of counsels misconduct and flagrant disobedience of judges orders. 2. McKey v. Fairbairn (D.C. Cir. 1965) a) Littlejohn brought suit to recover damages from landlord and agent for injuries from slipping and falling on wet floor. b) Trial judge did not abuse justifiably large discretion in refusing to permit P to change theory during the trial.

VIII.

Trial
1. Reid v. San Pedro, Los Angeles & Salt Lake Railroad (Utah 1911) a) Alleged in first cause of action that Appellants railroad passes through lands in St. Lake City privately owned and that Appellant carelessly and negligently allowed fence to be broken. Cow may have gone through gate (Ps fault). b) Where undisputed evidence of plaintiff from which existence of essential fact is sought to be inferred, points with equal force to two things, one of which renders the defendant and the other not, the plaintiff must fail.

A. Limits of Rational Inference

B. Procedural Control of Rational Proof

1. Burdens a) Burden of persuasion: on the preponderance of evidence (1) More likely than not. (2) In even-handed cases, verdict will go against the party who has the burden of persuasion (usually P). Rule 50 - Judgment as a matter of law (j.m.l) 1. 50(a): no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue. 2. Because there is no longer really a directed verdict, j.m.l has been substituted. 3. Also, motion for renewed judgment as a matter of law possible. Rule 59 - Grant of New Trials on Motion 1. 59(d): On courts initiative 2. Especially when process is flawed: evidence, instructions, misbehavior of juror, error of jury, verdict against the weight of the evidence b) Burden of Production (1) Needs to produce evidence, documents (2) If P fails to do this, P loses, even if the thing happened for which P did not produce evidence. (3) Reid- evidence of sagging fence is sufficient to meet burden of production for negligence. (4) Defenses oftentimes bear own burdens of production. 17

C. Controlling Juries before Verdict

1. Pennsylvania Railroad v. Chamberlain (S.Ct. 1933) a) Braking after coming over hump on way to track. b) For P: Foreman from far away saw convoy approaching decedents convoy at an angle, then heard a crash. c) For D: 19 eye-witnesses never saw crash, although they were all nearer to the site. d) If there are several inferences deducible from facts which appear, equally consistent with those facts, P has not maintained the proposition upon which alone he would be entitled to recover.

D. Controlling Juries after Verdict

1. Lind v. Shenley Industries (3d Cir. 1960) a) P sales manager for D liquor company b) Alleged oral promises for raise and a share of commissions. c) D moved for j.n.o.v., granted by judge (1) In the alternative, a new trial granted. d) Rule 50(c): Conditional new trial if j.n.o.v. reversed, vacated. e) Rule 50: renewed judgment as a matter of law. 2. Peterson v. Wilson (5th Cir. 1998) a) P claims property interest in employment at TSU damaged through improper firing. b) P filed suit in Dist. Ct. under 1983 and 1988, 1st, 5th, 14th Amendments. Judgment for P. c) Ct. granted new trial based on verdict and jurors comments after returning the verdict. d) Ct. never grant new trial b/c it would have ruled another way. e) Ct. can grant if it is against the great weight of evidence, but not based on ex parte meeting evidence.

IX. Personal Jurisdiction

A. Specific Jurisdiction
1. Generally a) Based on two constitutional provisions the full faith and credit clause (which requires each state to recognize and enforce judgment of another state) AND the Due Process clause which states that no state will deprive a citizen of life liberty or property without Due Process of Law. 2. Jurisdiction Vocabulary a) Jurisdiction: Power to render a judgment against a defendant b) In personam jurisdiction: jurisdiction over the person (1) Due process requires that in order to exercise jurisdiction over a person, reasonable methods must be employed to give the person notice of the action and afford him a reasonable opportunity to be heard 18

c) In rem jurisdiction: jurisdiction over the property/things (1) In rem jurisdiction can be obtained if non-resident owns property within state and property is attached pre-judgment d) Quasi in rem jurisdiction: property to obtain in personam juris. (1) Had attached land before suit began in Pennoyer, would have established quasi in rem jurisdiction; wouldnt have needed (pure) in personam jurisdiction (2) Quasi in rem jurisdiction changed in Shaffer v. Heitner: suit must arise from property seized. e) Special appearance: D appears b/f the court to challenge the courts personal jurisdiction over her w/o subjecting herself to the personal jurisdiction of the court (1) Need to file a 12(b)(2) motion first, or youve waived your personal jurisdiction 3. Pennoyer v. Neff (U.S. 1880) a) P failed to pay Mitchells fee, who sued in OR state court b) P was a non-resident who did not appear; judgment entered for Mitchell after constructive service summons of publication. c) After judgment, P purchased 300 acres from federal govt, was ordered seized by sheriff, sold to D, received sheriffs deed. d) For a state court, service of process and jurisdiction only occurs when a non-resident is served within the borders of that state. Attachment would have had to occur at the beginning of suit. e) Notice Give D opportunity to respond, fulfill Due Process. f) Power Whether state has exercised power it has, or whether it is acting outside its scope of power. g) Consent By action/explicit authorization 4. Milliken v. Meyer a) D did not appear in WY, although he was a citizen b) Was served in CO according to statutory scheme. c) The authority of a state over one of its citizens is not terminated by the mere fact of his absence from the state. 5. International Shoe Co. v. Washington (U.S. 1945) a) Statute in Washington for a comprehensive scheme of unemployment compensation b) Assessment of required contributions given to sales solicitor in Washington, copy mailed to appellant at address in St. Louis. c) Appellant has sales reps., models, pays commission, occasionally rents space in WA. d) Within the limitations of due process, a corporation can by its activities make itself amenable to actions brought against it there. The International Shoe Doctrine Due process requires only that D, if he is not present within the territory, maintain certain minimum contacts with the state such that the suit does not offend traditional notions of fair play and substantial justice. 19

6. McGee v. International Life Insurance Co. (U.S. a) Non-payment of insurance policy in Cal. b) Nationalization of commerce leads to decrease in burden on company in defending itself in other jurisdictions. c) Interests of plaintiff in not going elsewhere to prosecute suit. d) Interest of state in jurisdiction over matters pertaining to it. 7. Hanson v. Denckla (U.S. 1958) a) Whether FL or DE cts. had jurisdiction over trust assets of a woman who set up trust in DE but moved to FL several years later. b) The unilateral activity of P who claims some relationship with a nonresident D cannot satisfy the requirement of minimum contacts with the forum State. c) D must have purposely availed itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws. d) Similar to Worldwide Volkswagen v. Woodson. 8. Shaffer v. Heitner (U.S. a) Directors of Greyhound, seizure of shares of Greyhound. b) The seizure of property cannot create in rem jurisdiction if the subject of the suit is not that property. (Application of Intl Shoe). The International Shoe Spectrum G | Continuous | Single But Limited | Act Acts | | | specific specific | jurisdiction jurisdiction | | E.g.: E.g: | McGee v. Intl Ins.Co. Burger King |

No Contacts

Casual or Isolated Contacts

Substantial or Pervasive

no jurisdiction

no jurisdiction E.g.:
Worldwide VW Hanson

general jurisdiction

B. Specific Jurisdiction: The Modern Cases

1. World-Wide Volkswagen Corp. v. Woodson (U.S. 1980) a) Ps in car crash in Oklahoma, sued regional distributor, retailer, manufacturer, importer. Regional distributor (WWVW) and retailer claimed lack of specific jurisdiction (Seaway) because of lack of minimum contacts. WWVW and Seaway only did business in New York area, surrounding states. b) Forum State does not exceed its powers under Due Process Clause if it asserts personal jurisdiction over a corporation that 20

delivers its products into stream of commerce with expectation that they will be purchased by consumers in the forum state. c) Fair play and substantial justice are measured by: d) Ps interest in obtaining convenient and effective relief e) Forum States interest in adjudicating the dispute f) Ps interest in choosing a forum g) Interest in maintaining the most efficient system h) Joint interest in furthering fundamental social policies. i) Burden on D to defend suit. j) Foreseeab. of being called to ct. for claim related to activity. k) Dissent : Mobile nature increased range of specific jurisdiction. 2. Asahi Metal Industry Co. v. Superior Ct. (U.S. 1987) a) Impleader action (cross-claim) by Cheng Suin (Taiwanese tire manufacturer) against Asahi (valve). Asahi aware that parts were ending up in Cal. Is this sufficient for minimum contacts? b) Due Process Clause requires more than that D was aware of its products entry into the forum State through the stream of commerce in order for the state to exert jurisdiction over D. c) Lack of majority opinion (OConnor) means that there is room for argument over the actual rule. 3. Burger King Corp. v. Rudzewicz (U.S. 1985) a) D fell behind on franchise payments. b) P sued in Florida federal district court. c) Fair warning requirement is satisfied if D has purposefully directed his activities at residents of forum and litigation results from alleged injuries that arise out of or relate to those activities. 4. Pavlovich v. Superior Ct. (2002) a) Real party in interest is DVD Copy Control Assoc., Inc. b) Pet.: resident of Texas, posted anti-encryption technology on website; encryption tech. owned by DVD CCA c) Effects test: jurisdiction could be established based on the effects of conduct in forum state. Because Pet. Did not have any contact with Cal., conduct business there, he cannot be found to have purposely availed himself of business opportunities there.

C. General Jurisdiction
1. Coastal Video Communs. Corp. v. Staywell Corp. (E.D. Va. 1999) a) P sought declaration that handbook produced by P does not infringe on copyrighted material contained in Krames, Ds handbook of similar name. b) Only when the continuous corporate operation within a state is though so substantial and of such a nature as to justify suit against it on causes of action arising from dealings entirely distinct from those activities may a court assert general jurisdiction. c) Because there is no specific jurisdiction (D did not distribute pamphlet in VA), discovery allowed into general jurisdiction. 21

2. Burnham v. Superior Court (U.S. 1990) a) Transient or tag jurisdiction. b) Service of process for divorce while in Cal. on other business. c) Jurisdiction based on physical presence alone constitutes due process because it is one of the continuing traditions of our legal system that define the due process standard of traditional notions of fair play and substantial justice.

D. Consent as a Substitute for Power

1. National Equipment Rental v. Szukhent a) Ds rented farm equipment from Ps in NY b) Ds designated woman in NYC for accepting service of process. c) Such service is constitutional. d) E.g. of real consent rather than consent implied by contacts. 2. Carnival Cruise Lines, Inc. v. Shute (U.S. 1991) a) Cruise ticket that has Florida law forum clause on ticket. b) No bad faith motive, legitimate interest in having forum in Florida although there is no bargaining parity.

E. Constitutional Requirement of Notice

1. Mullane v. Central Hanover Bank & Trust Co. (U.S. 1950) a) Trusts: assets deposited by a first party (settler) with second party (trustee) for the benefit of third parties (beneficiaries). b) Notification of parties for settlement through newspaper. c) Ds had addresses of Ps, could meet with them. d) Notice must be reasonably calculated to contact person. e) Process that is a mere gesture is not due process.

F. Venue
1. Different from jurisdiction (authorized by 28 U.S.C. 1391) a) In diversity jurisdiction, venue appropriate where: (1) Judicial district where any D resides, if all Ds reside in the same state (2) Judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of the property that is the subject of the action is situated. (3) Judicial district in which any D is subject to personal jurisdiction at the time of the action is commenced, if there is no district where the action may otherwise be brought. b) In non-diversity jurisdiction cases, venue appropriate where: (1) Same as (a)(1) (2) Same as (a)(2) (3) Judicial district in which any D may be found, if there is no district in which the action may otherwise be brought. 2. Contrast with personal jurisdiction: under p.j., suit can be brought anywhere in state where jurisdiction exists. 22