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Professor Richard D. Freer
I. Personal Jurisdiction A. In Personam Jurisdiction 1. Constitutional Standard – Due Process Analysis a. Pennoyer v. Neff – The state has power, and therefore jurisdiction, over people and things within its boundaries – Four traditional bases of in personam jurisdiction i. Defendant was served with process in the forum – general jurisdiction (presence as the basis of jurisdiction) ii. Defendant’s agent was served while in the forum iii. Defendant is domiciled in the forum iv. Defendant consents to personal jurisdiction b. Hess v. Pawloski – Supreme Court expanded personal jurisdiction by expanding traditional bases c. International Shoe Co. v. Washington – The court has jurisdiction if the defendant has such minimum contacts with the forum so that exercise of jurisdiction does not offend traditional notions of fair play and substantial justice. d. Hanson v. Denckla – Purposeful availment. To be a contact, it must result from the defendant’s purposeful availment of the forum. e. World-Wide Volkswagen v. Woodson – It must be foreseeable that the defendant could get sued in the forum. f. Burger King Corp. v. Rudzewicz – International Shoe consists of two parts. (1) contact, and (2) fairness. To show jurisdiction is unfair, D must show that defending the case is so gravely difﬁcult and inconvenient that you are at a severe disadvantage in the litigation. However, the relative wealth of the parties is irrelevant. g. Asahi Metal Industry v. Superior Court – Stream of commerce case. 2. Statutory Inquiry a. Every state claims general jurisdiction over a defendant who is served with process in the forum. b. Every state has a statute that gives general jurisdiction over a defendant who is domiciled in the forum. c. Every state has a non-resident motorist act. d. Long-Arm Statute – Every state has one, to allow jurisdiction over non-residents. Two types: i. California statute – Statute reaches to the full extent of due process ii. Laundry list statute – A non-resident defendant can be sued in the state on a claim that arises from the defendant doing something speciﬁc in the forum.
a. In Rem Jurisdiction – The case is about ownership of the property itself. Rule 4(k)(1) – Can serve process throughout the state in which the federal court sits. If she returns it. Full Faith and Credit a. Attachment. 4. then the plaintiff will have to have service affected formally. If she does not waive formal service. Waiver of service – Method for waiving formal service of process. Exceptions: . B. Quasi-In-Rem Jurisdiction – Lawsuit has nothing to do with ownership of the property. 2. it is valid where it was rendered. but property is used for a jurisdictional basis. b. as well. b. We can serve process out of the state only if a state court could have served the process there. Send process and waiver form to defendant with a self-addressed stamped envelope. Rule 4(e)(1) applies. In Personam Jurisdiction – If there is a valid judgment. If you do not. In Rem and Quasi-in-Rem – Valid to the extent of jurisdiction. 2. II. the jurisdiction is over the defendant’s real or personal property. Agent Service – Serve the defendant’s agent. c. 5. d. Rule 4(e)(1) – The court may also use any method for service of process that is allowed by state law of the state where the federal court sits OR in which service was effected. the defendant will have to pay for the service. Service of process on an individual. Process – Process consists of a summons and a copy of the complaint. a. the court will dismiss the case without prejudice. and it is entitled to full faith and credit in other states. AND you must serve someone of suitable age and discretion who resides there. There are 3 alternative methods for service of process: a. b. Substituted Service – This is OK only at the defendant’s dwelling or usual abode. Notice and the Opportunity to Be Heard A. 6. Rule 4(c)(2) – Service can be effected by any non-party who is at least eighteen years old. 7. though. b. Service of Process 1. Process must be served within 120 days after ﬁling the complaint. Also. Rule 4(m). so the judgment is only good up to the value of that property. unless you can show good cause for that delay. Constitutional Requirement – Property must be attached at the outset of the case. You must serve an ofﬁcer or managing or general agent of that corporation. Then. D must meet the International Shoe test. In Rem and Quasi-in-Rem Jurisdiction 1. C. Personal Service – Deliver the papers directly to the defendant – can be done anywhere in the forum state. a. And under Shaffer v. We can attach the property if it is something a non-resident defendant owns or claims to own. Service of process on a corporation. then she waives service of process. Heitner. Deﬁnitions. 3. Here.
For a corporation. but if P is aware that D has not. ii. iii. e. It only applies to parties who are joined later under Rules 14 or 19. Central Hanover Bank – Notice must be reasonably calculated under the circumstances to apprise the defendant of the suit. not a sheriff. i. Plaintiff may be required to post a bond. Notice by publication – Usually in the newspaper. minors. Two requirements: a. However. Plaintiff must give an afﬁdavit of its claim. vi. this does not apply to service of process on an original defendant. Mullane v. Complete diversity rule for invoking diversity jurisdiction – there is no diversity if any plaintiff is a citizen of the same state as any defendant. Defendant gets the property back pending litigation by posting a bond. An American is a citizen of the state in which she is domiciled. b. d. c. What happens when representatives sue on behalf of others? (1) §1332(c)(2) – Suits on behalf of decedents. B. Look to the citizenship of all members. Subject Matter Jurisdiction – What court do we go to: state court or federal court? A. This type of notice might be okay. Last resort. (Strawbridge v. May require that the plaintiff’s afﬁdavit state the facts in speciﬁcity. Defendant gets a hearing on the merits at some point. v. such as partnerships or limited liability companies (LLCs). Test for diversity when the case is ﬁled. f. Case must be between citizens of different states. III. a. and the one state where it has its principal place of business. i. iv. A subsequent change in citizenship is irrelevant. The citizenship of a corporation. and incompetents – In those cases. Rule 4(k)(1)(C) – Federal statutes may allow for more service of process outside of the state. 2. due process may require that P make further effort to ensure notice. you look to the citizenship of . citizenship is deﬁned by §1332(c)(1). Major factors to protect the defendant: a. Citizenship of an unincorporated business. Domicile is established by two concurrent factors: (1) you must be present in the state. Rule 4(k)(1)(B) – We can serve process from a federal court out of state as long as it is within 100 miles of a federal courthouse. Get a writ of possession from a judge. Corporation is a citizen of all states where incorporated. Constitutional Standard for Notice 1. Curtiss) ii. Diversity of Citizenship 1. Opportunity to Be Heard 1. Jones v. § 1332(a)(1) – Requirements for a diversity of citizenship case. C. Flowers – usually it is not required that D actually receive the service. and (2) you must form the intent to make it your permanent home.
b. Grants supplemental jurisdiction to all claims that share a common nucleus of operative fact with the claim that got the case into federal court. Supplemental jurisdiction can make it possible for the court to hear this claim. ask: is P enforcing a federal right? If so. 20. 19. Plaintiff’s ultimate recovery is irrelevant to subject matter jurisdiction. §1331 – A claim that “arises under” federal law. Apply §1367 in two steps. . i. if there have joint claims. Claims by plaintiffs against parties joined under Rule 14. iii. if it meets Gibbs. the person being represented.000. ii. Federal Question 1. a.000. not the citizenship of those being represented. not counting interest on the claim or costs. Amount in controversy must exceed $75. but only in certain situations. (2) Class action suit – Look at the citizenship of the representative only. Does §1367(a) grant supplemental jurisdiction to this claim? i. Look only at the plaintiff’s complaint. C. Aggregation is where we add together two or more claims to get over $75. § 1332(a)(1) – The amount must exceed $75. § 1367 now codiﬁes the doctrine of supplemental jurisdiction. We aggregate claims if there is one plaintiff versus one defendant. Common nucleus test is always met by a claim that arises from the same transaction or occurrence as the claim that has invoked an independent basis of federal subject matter jurisdiction. c. Well-pleaded complaint rule – Look only at the plaintiff’s claim. iv. §1367(b) – Cuts back on that grant of supplemental jurisdiction. The plaintiff’s claim governs unless it is clear to a legal certainty that she cannot recover that much. Do not look at anything the defendant does. Claims asserted by people seeking to intervene as a plaintiff under Rule 24. To test. not the citizenship of the representative. § 1367(b) applies only in diversity cases to the following claims: a. it is probably a federal question case. or 24 b. 2. However. either in answer or counterclaim. Yes. i. b. You cannot aggregate if there are multiple parties on either side. United Mine Workers of America v. but there is a claim in the case that does not meet diversity or federal question. Supplemental Jurisdiction 1. A case is properly in federal court. B. you go with the total value. Gibbs – Federal court has supplemental jurisdiction over claims that share a common nucleus of operative fact with a jurisdiction-invoking claim. b.000. a. Claims by Rule 19 plaintiffs. Citizenship is irrelevant and amount in controversy does not matter.
IV. 3. (2) Cannot remove a diversity case more than one year after the case was ﬁled in state court. 2. f. § 1441(a) – You remove to the federal district embracing the state court where the case was ﬁled. d. i. Plaintiff has two choices of where to lay venue: i. a. ii. D. 1447. venue is in the district embracing the state court. or ii. C. Basic Provisions 1. B. Transferor court – The court from which we are transferring. In removal cases. Governed by §§ 1441. Any district where a substantial part of the claim arose. 2. Transfer is not available because the more appropriate court is in a different judicial system. i. you cannot go from a state court in one state to a state court in another state because you can only transfer within the same system. Convenience of the parties. a. Two Exceptions: THESE 2 EXCEPTIONS APPLY ONLY IN DIVERISTY CASES. Terminology a. Transfer of Venue 1. This is where the court dismisses the case because there is a more appropriate venue. NOT FEDERAL QUESTION (1) No removal if any defendant is a citizen of forum. However. Removal 1. Any district where all defendants reside. Two Transfer Statutes in the Federal System a. Only defendants may remove. Venue A. e. b. Interest of justice. Transferee court – The court to which we are transferring. You can transfer from a state court in one state to a different state court in the same state. It only goes from state court to federal court. Local actions must be brought in the district where the land lies. 3. Minor exception under §1441(c) – A single defendant can remove if there is a separate and independent federal claim against her. b. Rules for the transitory case (anything that is not a local action). We remove within 30 days of the case becoming removable. You can go from one federal court to another federal court in a different state through transfer because it is in the same system. §1404(a) – The transferor court is a proper venue. Can remove if the case has federal subject matter jurisdiction. and we may transfer based upon three things: i. Convenience of the witnesses. All defendants must agree to removal. 1446. . Forum Non Conveniens 1. §1406(a) – Venue in the transferor court is improper. c. 2. Plaintiffs cannot remove. iii. Removal is a one-way street. The court may transfer in the interest of justice or it may dismiss. b.
Rule 12(b)(2) – Lack of personal jurisdiction c. By doing so. 1. Can be non-monetary. B. Rule 11 1. Federal Rules – Rule 12 and Waiver 1. Twin aims of Erie (Hanna v. Plumer – If there is a federal rule of civil procedure on point that clashes with state law. Rule 12(b)(4) – Insufﬁcient process e. You can answer (a pleading) or you can make a motion.” by which D challenges only personal jurisdiction and nothing else. Three procedural matters for Federal Rule 11: a. The Erie Doctrine A. B. b. Rule 12(b)(5) – Insufﬁcient service of process f. Requires the attorney to sign all documents except for discovery documents. Balancing of interests – (Byrd v. Avoidance of the inequitable administration of the law. The certiﬁcation is affective every time that document is presented to the court (“continuing certiﬁcation”). b. The denial of factual contentions has evidentiary support or are likely to after further investigation. The document is not for an improper purpose. complaint. Pleadings – Documents that set forth claims and defenses (i. you have a choice of response. b. Plumer) a. Black letter law – The Federal Court must apply state substantive law. D does not subject herself to jurisdiction. a. VI. Special Appearance Doctrine – If D wants to challenge personal jurisdiction. Challenging Forum Selection A. Defenses 12(b)(2) through (b)(5) must be asserted in the ﬁrst Rule 12 response or they are waived. Rule 12 – When you get sued and receive notice. 2. d. she can make a “special appearance. Sanctions are discretionary and are to be aimed at deterrence. c. or there is at least a non-frivolous argument that the law should change. The legal contentions are warranted by law.e. Rule 12(b)(3) – Improper venue d. York) 2. c.. A motion for violation is served but is not ﬁled. the federal rule governs. after an inquiry reasonable under the circumstances. Rule 12(b) lists seven particular defenses that the defendant may raise in her answer or by a motion to dismiss. Outcome determination – (Guaranty Trust v. VII. Factors for applying Erie Doctrine 1.V. Rule 12(b)(7) – Failure to join an indispensable party. 2. that: a. Hanna v. Certiﬁes to the best of your knowledge and belief. answer) A. The factual contentions have evidentiary support or are likely to after further investigation. Rule 12(b)(6) – Failure to state a claim g. Blue Ridge Rural Electric Cooperative) 3. . Rule 12(b)(1) – Lack of subject matter jurisdiction b. Avoidance of forum shopping.
A short and plain statement of the claim showing that you are entitled to relief. Grounds for subject matter jurisdiction. transaction. b. Failure to deny is treated as an admission on all allegations except damages. defendant will either answer or bring a motion. It goes beyond the scope of what was pleaded. either: i. the lawsuit is commenced. Rule 15 – a. 15(a) – Gives us three basic rules of amendment. in which case we treat the pleading as though it is amended to show the new information. statute of limitations. 1. If there is no right to amend. ii. Exceptions: i. Rule 8(b) – Respond to the allegations of the complaint i. the evidence is inadmissible. i. or ii. . Rule 9(b) – Circumstances constituting fraud or mistake must be pleaded with particularity. Whenever there is a variance at trial. statute of frauds. a. Answer a. Defendant’s Response 1. in which case. Deny iii. Rule 12 – Within 20 days of service of process. A demand for judgment. res judicata). b. c. a. ii. Admit ii. Raise afﬁrmative defenses (e.. Rule 8(a) – Tells what must be in the complaint. Rule 9(g) – Items of special damages must be pleaded with speciﬁcity. 15(c) – Amendments after the statute of limitations has run i. The other side will object to the variance. 15(b) – Variance: Where the evidence at trial does not match what was pleaded. you seek leave of court. 15(c)(1)(B) – Amendment is to add a new claim – Amended pleadings will relate back if they concern the same conduct. iii. The other side will not object to the variance. General Rule – Complaint must put the other side on notice. The amendment shall be freely given when justice so requires. Plaintiff has the right to amend once before defendant serves her answer. c. B. D. Amending Pleadings 1. or occurrence as the original pleadings. 2. Complaint – When the complaint is ﬁled. c. the party that is coming up with this evidence can seek leave to amend. 2. Defendant has the right to amend once within 20 days of serving her answer. but even at trial. C.g. Lack sufﬁcient information to admit or deny b.
Rule 19(b) E. Claim Joinder by the Plaintiff – Rule 18(a) – Plaintiff can assert any and all claims against the defendant. . Impleader (“Third-party Practice”) 1. D. somehow. Proper parties 1. c. Crossclaim – Rule 13(g). a. Decide whether to proceed without the absentee or dismiss the case. then absentee is necessary. 2. Rule 19(a)(1)(A) – Without the absentee. VIII. Subject Matter Jurisdiction – Not feasible if it would destroy diversity jurisdiction. Allows defendant to join somebody new (the TPD) because the TPD is or may be liable to the defendant for all or part of the plaintiff’s claim. b. but. Two types of intervention. Must be timely. Rule 19(a)(1)(B)(i) – The absentee’s interest might be harmed if she is not joined. C. Intervention 1. 15(c)(1)(C) – Trying to amend to add a new defendant – Allowed if you sued the wrong person the ﬁrst time around. Personal Jurisdiction – Not feasible if there is no personal jurisdiction. can the court accord complete relief among those who are already joined? If the answer is no. Claim Joinder by the Defendant. Not feasible i. a. It is up to the absentee to decide which side to come on. Rule 19: Is joinder of the absentee feasible? a. Joinder A. A claim against a co-party that must arise from the same transaction or occurrence as the underlying dispute. ii. Rule 19 – Who must be joined in a pending case. iii. b. Rule 24(a)(2) – Intervention of Right – Satisﬁed if you can show that the absentee’s interest will be harmed if she is not joined and her interest is not adequately represented now. 3. Necessary and Indispensable Parties 1. Feasible – Join absentee to the case. F. Rule 13(a)(1) – Compulsory counterclaim: arises from the same transaction or occurrence as the plaintiff’s claim. Counterclaim – A claim against an opposing party. An absentee seeks to bring herself into a case. 1. Rule 19(a)(1)(B)(ii) – Does the absentee’s interest potentially subject the defendant to multiple or inconsistent obligations? 2. Three tests: a. B. the right person knew about it and can be charged with knowledge of it and that but for a mistake he would have been charged in the original complaint. 2. a. ii. 15(c)(1) – Relation-back if a statute allows it. Rule 20(a) – Question of who may be joined by co-plaintiffs or co-defendants in a single case.
Somebody holding property (the stakeholder) can force all potential claimants into a single case. Must tell class-members various thing. b. it must deﬁne the class and class issues and must appoint class counsel under Rule 23(g). Rule 23(a)(1) – Too numerous for practicable joinder b. including: i. and that makes an injunction or declaratory judgment appropriate. 8. 7. Initial requirements a. Must show that common questions predominate. They may enter a separate appearance through counsel if they want. c. Can seek immediate appeal from the grant or denial of class certiﬁcation under Rule 23(f). b. iii. Allapattah -. The class action is the superior method for resolving this dispute. Two types of interpleader: a. Rule 24(b)(2) – Permissive Intervention– Absentee’s claim or defense has at least one question in common with the pending case. 2. Every class member is bound by judgment except those who opt out of a 23(b)(3). IX. They will be bound if the do not opt-out. Amount in controversy – Exxon Mobil v. Rule 23(a)(2) – Commonality c. ii.OK as long as representative’s claim exceeds $75. Rule 23(b)(3) – Class representative pays to give individual notice to all members reasonably identiﬁable. Involves a dispute over property. Settlement or dismissal must be approved by the court. Rule Interpleader (Rule 22) – A diversity of citizenship case.000. Rule 23(b)(3) – Damages class i. ii. Subject Matter Jurisdiction – a. Interpleader 1. Class Action 1. H. d. look at the representative of the class. Notice to the class a. 5. G. Rule 23(a)(3) – Representative’s claims must be those typical of the class. b. b. 2. You do not need complete diversity. If the court certiﬁes the class. 6. Discovery . For citizenship. Rule 23(b)(1) – Prejudice Class Action – Where class treatment is necessary to avoid harm to the class members or to the party opposing the class. Rule 23(b)(2) – Party opposing the class acted on grounds that are generally applicable to the class. They may opt-out. Class members’ claims can invoke supplemental jurisdiction. Must ﬁt the case within one of three kinds of class actions a. Statutory Interpleader – You need one claimant diverse from one other claimant. even if other class members’ claims do not. 3. 4. Rule 23(a)(4) – Representative will fairly and adequately represent the class.
Must identify people and documents with discoverable information that you may use to support your claims or defenses. Substantial Need ii. 1. Rule 26(c) – The one from whom discovery is sought asks the court for a protective order. Required Disclosures 1. Deposition 2. Interrogatories 3. a. Standard – Rule 26(b)(1) – Can discover anything relevant to a claim or defense of any party. Can recover costs. Pre-Trial Adjudication A. Sanctions a. 26(a)(3) – Trial Evidence B. b. D. iii. Discovery Sanctions 1. ii. Request for Admission C. Total Failure to Comply – Rule 37(d) – Can get sanctions right away and can recover costs. Partial Failure to Comply – Can make a motion to compel the answers under Rule 37(a)(2). 26(a)(2) – Experts c. Defending party must tell about insurance that she has for all or part of a claim. including attorney’s fees for bringing motion. if you win on the motion. Substantial Hardship Even then. Rule 37(c)(2) – Fail to admit something that should have been admitted under Rule 36. 2. Privileged Material b. 26(a)(1) – Initial Disclosure i. Physical or Mental Examination 5. unless i. b. Plaintiff must give a computation of damages. Disallowing evidence X. A. i. Scope of Discovery 1. Court order . Discovery Tools 1. Things Protected from Discovery: a. Stipulation of the parties 2. Rule 26(a) – Parties must produce information at three different times in the course of litigation. Striking the pleadings ii. Rule 37(c)(1) – Addresses what happens when a party fails to make one of the required disclosures. Work Product. Request to Produce 4. “opinion” work product is absolutely protected. Rules a. c. b. Voluntary Dismissal – Rule 41(a) – Where the plaintiff wants to dismiss the case. 2.
b. Motion for Judgment as a Matter of Law – Rule 50(a) – The judge steps in and takes the decision away from the jury. 2. E. Generally. Moving party must show that there is no genuine issue as to any material fact. you must have a jury. 2. The losing party brings this motion and if the motion is granted. Motions Related to the Trial 1. we take the judgment away from the person who won the verdict and we enter judgment for the person who lost the verdict. 3. D. we will try the jury issues ﬁrst. Trial and Related Motions A. it looks only at the face of the complaint. Selection of a Jury 1. If an issue of fact underlies both the remedy at law and the remedy at equity. Failure to Abide by a Court Order C. Involuntary Dismissal 1. and b. Default 1. but not at suits at equity. That she is entitled to judgment as a matter of law. C. Each side has unlimited strikes of potential jurors for cause. Rule 12(b)(6) Motion 1. Standard for granting a Motion for Summary Judgment a. Instead. However. Motion for Summary Judgment 1. Right to a Jury Trial 1. Motion to dismiss for failure to state a claim. Seventh Amendment – Preserves the right to a jury trial in actions at law. 2. you must have a race-neutral and gender-neutral reason for using peremptory strikes. c. A Motion for Judgment as a Matter of Law at an appropriate time at trial is a prerequisite to a Renewed Motion for Judgment as a Matter of Law. Rule 55(a) – Plaintiff must request the entry to default from the clerk of the court when the defendant has not responded within 20 days after service of process. Failure to Abide by the Federal Rules 3. a. B. Rule 48 – Governs how many jurors there are in a civil case in federal court a. . Each side has three peremptory strikes. Renewed Motion for Judgment as a Matter of Law – Rule 50(b) – The judge has let the case go to the jury. Failure to Prosecute 2. Three Important Issues a. and the jury has returned a verdict for one party. We determine the right to a jury trial issue by issue. a. B. Plaintiff may dismiss without prejudice once by serving a notice of dismissal before the defendant serves her answer or motion for summary judgment. 2. You can move for this only after the other side has had its chance to present its case. XI. b. The court enters a judgment. The court does not look at evidence. Court can look at evidence.
1. Extraordinary Writ – An original proceeding brought in the appellate court asking for an order compelling the trial judge to do something or to vacate an order. §1292(a) – Certain interlocutory orders that are reviewable as a right 2. 3. . Against whom is collateral estoppel being used. Case 1 must have ended in a valid ﬁnal judgment on the merits. Federal Rule 54(b) – Involves cases with multiple claims or multiple parties. You must show that Case 1 and Case 2 were brought by the same claimant against the same defendant. 4. 3. Question of Law – Court of Appeals gives no deference to the trial court 2. XIII. Standard of Review 1. Collateral Estoppel (Issue Preclusion) 1. Show that the same issue was actually litigated and determined in Case 1. §1292(b) – Allows appeal of an interlocutory order if the trial judge certiﬁes that it involves a controlling issue of law and that there is a substantial ground for difference of opinion. It is okay if the jury might reasonably have found this. Res Judicata (Claim Preclusion) – You get one case in which to vindicate your claim. You can only use collateral estoppel against someone who was a party to Case 1. 3. Appeal A. b. The Court of Appeals will allow whatever the trial court judge did unless the trial court judge abused her discretion. Show that Case 1 ended in a valid ﬁnal judgment on the merits. Federal Rule 23(f) – Court of Appeals has discretion to review an order either granting or denying class action status. but three things must be true: a. You cannot go to the Court of Appeals until the trial court enters a ﬁnal judgment. c. XII. Discretionary Issues – Reviewed by the Court of Appeals under the abuse of discretion standard. C. 4. 3. It must raise an important issue that is separable from the merits. B. 1. The trial court can expressly direct ﬁnal judgment as to one or more of these and can make an express ﬁnding that there is no just reason for delaying appeal. The issue is affectively unreviewable if we wait until ﬁnal judgment. Show that the issue on which we want collateral estoppel was essential to the judgment in Case 1. Interlocutory Review 1. The court order completely resolved that issue. Final Judgment Rule – Court wraps up the whole case. B. 4. 6. Case 1 and Case 2 must involve the same claim. The Court of Appeals must also agree to hear the interlocutory appeal. By whom is collateral being asserted. 5. Collateral Order Rule – Gives the Court of Appeals discretion to take an interlocutory issue. 5. Preclusion Doctrines A. Finding of Fact by the Jury – Entitled to enormous deference by the Court of Appeals. Mutuality is not required by due process. 3. 2. Motion for New Trial – Rule 59(a) – Judgment has been entered but there have been errors at trial that require the case to be retried. 2. Finding of Fact by a Judge – Court of Appeals can reverse only if it ﬁnds that the trial judge was clearly erroneous.