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Civil Procedure Outline Part 1: Overview of the Litigation Process Introduction o When bringing a case need to ask: Where

ere geographically to bring the case State or Federal court Federal Court o Divided into 13 circuits o When P had the burden of proof, P will win by proving elements unless D can show a defense (D has the burden to prove defenses) o Public figures are protected from suit unless malice can be proven by Pnot a defense (New York Times v. Sullivan) o Survey of Civil Action Adversarial system: total responsibility is placed on the parties o Federal Procedure Rules: advisory committee comes up with proposed rules and Supreme Court decides if its ok with the rule and then it is sent to congress these rules operate just like statutes Pleadings only the pleading stage what is necessary for a claim o Who Pleads What? Burdens of Pleading Rule 7 Pleadings Allowed: Motion to dismiss even if all facts of the complaint are true, there is no claim upon which relief can be granted Rule 8 General Rules of Pleadings: Generally a D responds to complaint with an answer either to the facts or raise an affirmative defense Burden of pleading P pleads elements and D pleads affirmative defenses o P shouldnt bring defenses because Inefficient (cant encompass all) D is more likely to know defenses than P Goes against an adversarial system Harder to make a claim o If D misses a defense it is waived D bears the burden of proving there was not bad faith (ie it is an affirmative defense) (Gomez v. Toledo) Since these facts would be within the knowledge of the D and not the P Qualified immunity: shield for government defendants that are sued for violating human rights o Can only get damages if officials were acting in bad faith Consequence of this case is that fewer people will sue for similar cases

Concerns about false positives and false negatives: as a system we are more concerned with the possibility of a false positive (liable when you shouldnt be) o Adequacy of Plaintiffs Complaints Rule 8(a): a short and plain statement of the claim showing that the pleader is entitle to relief Rule 9 Pleading Special Matters: heightens pleading standard for certain types of claims Fraud Rule 12 Defenses and Objections: (b)(6): (motion) a failure to state a claim upon which relief can be granted o take facts most favorable to the non-moving party as true o cant use this motion to throw out a defense o cant help if party is making something up o take the complaint as the universe of what you know o an affirmative defense is the movants burden use a more likely than not standard Forms 10-15: make pleading stage easier dont mean there is a valid claim but only that there is an accusation Form 11 is a good illustration of what is allowed for a pleading o P want to argue that complaint follows this form o D want to argue that claims are conclusory Complaint must give rough idea to defendant of what he is being sued for can be very short and unspecific (Dioguardi v. Durning) it could disclose the basis for the claim and facts that are being planned to be proved If a complaints allegations are ambiguous and one reading states a possible claim, the claim cannot be dismissed under Rule 12(b)(6). (American Nurses Assoc. v. Illinois) having bad claims and good claims doesnt mean there is no claim as long as there is at least one valid claim shows the risk of pleading too much Take non-conclusory facts as true and see if they plausibly support a claim (Bell Atlantic Co. v. Twombly) Parallel conduct does not violate Sherman Act which means complaint doesnt meet he pleading burden Its not enough that the allegations present a possibility of conspiracy, there must be a showing of plausibility (8(a)(2)) o Tie goes to the runner Complaint must give D notice of the claim

explicit retiring of Conley v. Gibson language of no set of facts concern about having to pay too much for discovery for a baseless claim Ashcroft v. Iqbal Ds must have been actively involved in the discrimination in some way Dont want government officials to be sucked into litigation o Could dissuade them to do there job as well as possible o Discovery burdens are very costly qualified immunity: P has to be allege D violated a constitutional right that is clearly established if P does this there is a question if a reasonable officer would have known this in the circumstance allows D to appeal early Court establishes a new way of looking at the twombly test o identify the conclusory statements from the complaint dont have to take these as true o go through remaining/factual allegations and see if they support an illegal allegation o do these facts support a plausible conclusion for the conclusory statements dont want to impute bad motives when there is an alternative, plausible explanation o Provisions to deter frivolous pleading Rule 11 Sanctions: eligible for sanctions if there is no reasonable inquiry or no evidentiary support Can adjust this standard to make discovery practices more efficient Possible fix for liberal notice pleading (b): trying to weed out: bad faith, bad law and bad facts o can violate each subsection o (2): some jurisdictions allow you to make a claim even if you know there is a defense o if there is a reasonable belief about changing the law, you can refile a claim after it has been rejected have to be clear about what you are doing attorney can be sanctioned for not looking into a claim reasonable under the circumstances (amount of research) might depend on time, accessibility of evidence (verify), cost of verification can be used at any point in the process of a case (c)(4): can impose nonmonetary directives, focused on deterrence (ie throw case out, monetary penalty) (c)(5)(a): cant sanction a person who has a lawyer

(c)(1): a represented party cannot violate rule 11 but can be responsible for it so this section allows that person to be sanctioned an attorney can file a complaint on a good faith belief that there will be evidence. does not require actual evidence Justice Scalias dissent from 1993 amendments Lawyers have little incentive to file a motion for a sanction since you can no longer receive fees as party of the sanction The 21 day safe harbor makes it a lot more difficult to sanction Judges have the discretion to give sanctions and are unlikely to want to punish their peers. Rule 8 v. Rule 11 which is stricter?

Discovery o Scope of Discovery Purpose of discovery Preservation of relevant information that might not be available at trial Ascertain and isolate those issues that actually are in controversy between the parties Find out what testimony and other evidence is available on each of the disputed factual issues Dont want people to be surprised because juries are terrible at interpreting surprise Saves time and money parties are more likely to settle Need the trial to be as quick as possible because of the jury Basic Mechanisms for getting info for discovery Depositions (Rule 30) interview under oath Interrogatories (Rule 33) 25 written questions for opponent help understand legal theories Production of Documents Requests for Admission binding under oath questions Rule 26 Provisions Governing Discovery: (a)(1): mandatory disclosure, give whatever a party is going to use o have to give what the other party asks for (b): gives courts discretion to limit unnecessary discovery o (1): must be relevant to the subject matter involved in the action. (g): sanctions for discovery abuse Does not need to be admissible at trial to be discoverable Limitations on Discovery o Privileged information o (b)(3): work product created for trial

Rules 27-36 Scalias dissent from 1993 amendment (mandatory discovery) Goes against an adversarial system by making parties do each others work Adds another layer of litigation because parties will argue over what should be mandatory Not required to automatically turn over documents that a party will not be using (Cummings v. General Motors) Judgments and Verdicts: Judge v. Jury Control o Juries decide the facts, Judges decide the law o Jury Nullification (criminal case): Verdict to acquit is not reviewable o Judges can overrule irrational jury verdicts (Civil cases) will let judge take over verdict when it seems that the result must have been as a result of a bias etc of the jury o Pleading party usually has the burden of proof o Standards of proof Preponderance of the evidence at least 50% Beyond a reasonable doubt: criminal law Clear and Convincing evidence o The right to a jury is a reasonable one allow judges to decide cases when it is clear that a jury could only find one way safeguard from crazy jury verdicts o Motion for Judgment as a Matter of Law - the judge has seen the evidence and there is only one possible answer Can happen during or after trial only way to dismiss a case after trial has begun D wins as a matter of law if P does not meet its burden of proof Rule 50 mechanism for judgment as a matter of law Standard: no reasonable jury could rule for the non-moving party Either party can file the motion anytime before the case is submitted and after the issue has been fully heard the motion for the first time has to be BEFORE the case goes to the jury can be renewed afterward When ruling, a judge should not weigh the evidence, only decide if there is evidence to go to trial (Lavendar v. Kurn) Look at evidence in the light most favorable to the nonmoving party If a reasonable person could find for either party, this is a question for the jury o Summary Judgment evidence is so one-sided no reasonable jury could find for the other party Question is: Is there a genuine dispute of material fact Allows judges to decide cases before trial

Rule 56 (a): if there is no genuine dispute over any material fact, movant is entitled to judgment as a matter of law o genuine dispute: a dispute that the jury could find either way (b) can move for SJ anytime up to 30 days before trial (c): everything in the record is available to be shown for the purposes of summary judgment (paper form) o (4): only evidence that is admissible at trial is admissible for summary judgment judge will look at evidence on a prima facie level (will not make a judgment, only look at the evidence and see if either party has no case) assume non-moving parties evidence is true Courts can move for summary judgment on its own without a motion as long as it lets the loser know and bring a defense if possible CB 959-61 summary judgment held to same standard as judgment as a matter of law and standard of proof is always taken into account (Anderson v. Liberty Lobby) o Motion for a New Trial Rule 59: doesnt fully take away the judgment from the jury. Judge is just saying we need a do-over Can be granted for any reason that a new trial has been granted in the past Rule 61: no error is sufficient for a new trail unless it had an effect on the outcome of the trial Reasons for a New Trial: Jury Misconduct Legal Error: Judge made a mistake Verdict is against the clear weight of the evidence Damages shock the conscience of the judge o Judge will try to broker a deal first (remitittur) o Cannot ask for more than the jury decided (adittur) Inconsistent verdict When a verdict is unclear, a judge cant just mold it. (Robb v. Hickey) if a new trial is granted (not a final judgment), person who had verdict cannot appeal can only appeal final judgment The granting or refusing of a new trial is a matter within the discretion of the trial judge and his decision is not reviewable on appeal except for the most exceptional circumstances (Aetna Casualty & Surety Co. v. Yeatts) Deferential standard because trial judge is in the best place to know the answer Part 2: Selected Issues

Fairness to the Defendant: Personal Jurisdiction and Notice o Judge takes allegations in complaint as true when addressing issue of jurisdiction o Personal Jurisdiction What state do I want this case to appear in? In personam: jurisdiction over you In rem: jurisdiction over a thing/property service of process: formal act by which a court takes jurisdiction over you Question of personal jurisdiction is a question of Due Process (Pennoyer) NEED: 1) consent 2) citizenship (can sue anyone in their state of residence) 3) presence in forum state A state can enact and enforce regulations designed to protect an important public interest, even against non-residents, as long as the regulations treat residents and non-residents equally. (Hess v. Pawloski) Benefitting from a state is implied consent The question of jurisdiction is whether the state where claim is brought can possibly have jurisdiction, not if there is a state with better jurisdiction if D is not present in forum state, and there is no consent and not a citizen, there must be minimum contacts for personal jurisdiction (International Shoe Co. v. Washington) GRAPH?? corporation is a legal fiction only exists on paper (can always sue any corp in its place of incorporation or where its HQ is) Factors that establish minimum contacts with D and forum state: o Volume of contacts o Quid pro quo: benefits and protections from interacting with the state o Relatedness: between conduct and subject matter of lawsuit o convenience o efficiency: witnesses/discovery o states interest When there is a continuous and systematic presence and the lawsuit is about this conduct, jurisdiction is not doubted General Jurisdiction: contacts with forum state are high, relatedness low Specific Jurisdiction: low contacts but highly related to the suit o Specific Jurisdiction

Long Arm Statutes: permits a court to hear a case and enter a binding judgment against a foreign defendant (must be consistent with the Constitution) A state may exercise jurisdiction over a D whose contacts with that state consist of only a single act, provided that that act is what gave rise to the claim for which jurisdiction is being sought, and was deliberately directed toward the state. (McGee v. International Life Insurance Co) Cares more about the States interest Purposeful Availment Requirement: in order for contacts to count they have to be the result of a purposeful act of the defendant with the forum state (Hanson v. Denckla) This factor is added to the list of I.S. factors The defendant being able to control what states can have jurisdiction over him is important Have to intentionally participate To exercise jurisdiction conduct and connection with the forum state should be such that one should reasonably anticipate being haled into court there (question of foreseeability). A party must deliver its products into the "stream of commerce" with the expectation that they will be purchased by consumers in the forum state. (World-Wide Volkswagon Corp. v. Woodson) Mere "unilateral activity" does not satisfy the requirement of minimum contact in a forum state. Dissent thinks its wrong to focus analysis on D and not address the needs of P. Test for Jurisdiction: has the state enacted a statute that gives courts jurisdiction over this case? is jurisdiction constitutional / Due Process Question o minimum contacts question purposefulness? are Ds contacts the right kind of contacts or unilateral actions of another, availment?, effects test, intent to enter, control relatedness and volume of contacts o is exercise of jurisdiction reasonable? Ds interest- foreseeable to be haled into court?, will the financial burden result in no representation (only extreme cases)? States interest is either party a resident? Ps interest Efficiency Policy international company?

a court should focus on the relationship among the defendant, the forum, and the litigation. Ps ties are less important. (Keeton v. Hustler Magazine) A unilateral act by P does not subject D to jurisdiction where D has no other contacts in the forum state (Kulko v. Superior Court) effects test: a contact can be created by doing something outside of state that causes effect in state Effects Test: even if you dont step into forum state you may be subject to jurisdiction if you intention inflict harm aimed at someone in forum state (Calder v. Jones) Factors for Effects Test: o Intentional tort (targeted negligence) o brunt of harm will be felt (all of harm) aimed at P in forum state an employees contacts with a state can be imputed to the corporation but NOT the other way around A contract alone does not mean there is jurisdiction based on the terms of the contract contextual factors need to be considered contact-plus analysis (ie who sought out contract, what were the terms, course of dealing) (Burger King Corp. v. Rudzewicz) even if minimum contacts arent established, jurisdiction can be found based on strong reasonableness factors, with strong contacts reasonableness is less important (Brennan makes jurisdiction easier) courts are worried about the differences in bargaining power Serving the market (Asahi Metal Industry Co v. Superior Court) OConner: stream of commerce plus need a purpose to serve the market not simply entering product into the stream Brennan: stream of commerce period if D knew or should have known that the products would end up in the forum state that is good enough to satisfy reasonableness neither companies are based in CA and both are international jurisdiction fails on reasonableness CA doesnt have an interest because either party will have an incentive to make their products safer regardless of who pays stream of commerce issue The Internet o General Jurisdiction