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Personal Jurisdiction A. Rule: Contacts and Fairness Analysis a. International Shoe: WA wants Shoe to pay into an unemployment fund – but Shoe only has salesmen in WA with no real product (one shoe per pair); court classifies Shoe as Continuous and Systematic & Related (see Specific Jx below); Shoe is reaping the benefits of WA (customers, police protection, etc.) i. Rule: requires minimum contacts such that fair play and substantial justice are not offended ii. Quality and quantity both matter = higher the quality the less fairness you need iii. But if the # of contacts reaches zero, fairness is immaterial = no personal Jx B. Contacts Analysis a. Any Contacts? b. Purposeful Contacts / Purposeful Availment? i. McGee: purposeful availment is sufficient; contract was delivered in CA and premiums mailed from CA (chose CA customer) ii. Hanson: unilateral actions of the P is not sufficient; Mom’s move to FL does not establish FL P Jx over D (trustee); (chose DE customer who moved to FL) iii. Asahi: international tire/rubber case; placing product in stream of commerce alone is not enough; esp when added to fairness factors (see below); must have SoC directed at the state, three factors: \ 1. Volume Advertising? Designed for 2. Hazard forum’s buyers? 3. Value iv. Burger King: franchise problems - contracts may be purposeful availment; choice of law clause means K parties are purposefully availing themselves of that state’s law c. Tag Jurisdiction? i. Burnham: divorce case; husband in CA; in hand, in state service is sufficient; difference between intentional and involuntary presence in forum state; N/A for corporations (surviving Pennoyer factor) d. General Jurisdiction? i. Coastal Video: substantial minimum contacts such that an unrelated suit is fair; must have “pervasive contacts” – but that may not be sufficient 1. consistent and substantial pattern of business relations (heavy sales, significant # of hits on the website from state) 2. Krames/Staywell’s contacts were insufficient – they were not wrongdoer so court easier on them – Coastal was seeking declaratory judgment that C wasn’t infringing on K’s booklet copyright; No PJ b/c the contacts didn’t arise from the cause of actions ii. Individuals: state of their domicile iii. Corporations: state of incorporation and state of principle place of business (based either on nerve center test or muscle test (or both)) e. Specific Jurisdiction? i. International Shoe: requires minimum contacts such that fair play and substantial justice are not offended 1. Continuous and systematic & very related (ex: you are a corp whose headquarters are in CA and your employee hits someone in CA) Jx (Shoe) 2. Continuous and systematic & unrelated (ex: you live in CA, you are in NY and get in an accident there, you get sued in CA…the fact that you’re a Californian is unrelated to the accident in NY…your contacts to CA are extreme but they are unrelated to the NY accident) (sometimes Jx; can’t always predict) 3. Casual presence of an isolated/sporadic/incidents that are related (sometimes Jx; must look at how isolated and sporadic) 4. Casual presence of an isolated/sporadic/incidents that are unrelated (No Jx) ii. Suit must relate to the contacts; need not be pervasive iii. Pavlovich: internet as contacts / purposeful availment: 1. Personal Jx is proper = Interactive with sales 2. Middle Ground = Interactive w/o sales; depends on level of activity 3. Personal Jx is improper = Non-interactive / passive 4. knowledge that actions might adversely affect state not enough (P has decryption codes on website; passive)
iv. Calder: National Enquirer case, activity aimed at state was enough; factors:
1. knowledge of the effect 2. substantial sales in forum state 3. targeting forum state LL Bean: substantial, continuous, systematic contacts; website operations in CA enough
f. Pennoyer – Three holdings: i. In person, instate service is good to assert Jx (still good under Burnham) ii. In rem is sufficient to assert Jx (overturned by Shaffer) iii. Substitute service or constructive notice okay (overturned by Shoe)
iv. Principle is that states don’t have power outside of their borders C. Fairness Analysis a. World Wide Volkswagen: car accident in OK, fire-injuries; P’s want to sue NY dealers too so no complete diversity (OK court more sympathetic than Fed court) i. Convenience of D (and possible inconvenience to P to litigate elsewhere (Burnham)) ii. Forum State’s interest in the litigation iii. P’s interest in effective relief iv. Shared interests of several states in obtaining efficient resolution of controversies v. Shared interest of the several states in furthering fundamental substantive social policies vi. Maybe: “Procedural and substantive policies of other nations” (Asahi) b. Note: Foreseeability that is relevant is that D foresees he might be hailed into court c. Shaffer (pre-WWVW): in rem is destroyed as substitute for fairness analysis; traditional methods of asserting Jx may offend due process (also first case to apply Shoe to individuals not corps); shareholder sued BoD alleging breach of duty to corporation (Greyhound); not enough to have in rem over the “shares” of the corp D. Rule: 4(k)(1)(a): for federal court personal Jx analysis, generally the relevant contacts are with the state in which the federal court sits, not the entire country; directs Federal DCs to act like the local state court for purposes of their Jurisdictional reach; Congress can exempt FDC’s though a. Rule 4(k)(1)(c) allows Jx when authorized by a federal statute (like the Clayton Act in Dee-K: D is a corporation, antitrust law allows Jx from worldwide service of process) E. Consent as substitute for power a. Carnival Cruise v. Shute: upheld a forum selection clause in a K (on ticket) where there is no breach of fundamental fairness (fraud, overreaching, illegitimate intent, lack of notice) b. Adjudication on the merits also seen as consent F. Constitutional Requirement of notices: notice of judicial proceedings must be reasonably calculated to reach those who are known to be affected by such proceedings a. Mullane: constitutional standard that notice has to be reasonably calculated to give actual notice; mass mailings or publication ok if reasonable; requires a legitimate effort to achieve notice at a reasonable cost i. Bank wanted to merge multiple trusts, had lists of beneficiaries and successors but didn’t notify everyone they had an address for – must do that and make reasonable efforts to get rest (cost-benefit analysis) b. Rule 4(c): serve summons and complaint c. Rule 4(d): (Waiver of Service) If D waives – he receives an extended period of time to respond to the complaint; If D doesn’t – he is required to pay for subsequent service; has a “duty to save costs of service” d. Rule 4(e): four methods for serving the process of a federal district court to a D: i. Follow the state law ii. Deliver it to the individual personally iii. Leave a copy at the dwelling with someone of age and discretion who resides there (substitute service) iv. Deliver it to the agent for service of process e. Policies: i. Procedural due process ii. People need to be aware that they are being sued iii. Try case on merits not procedural mistake G. Long Arm Statutes: statues that grant personal Jx over out of state D’s. CA’s statute extends personal Jx as far as the Constitution allows (“any basis not inconsistent with the Constitution”)(Shoe Test) a. Gibbons: (shorter long arm statute) FL: D must be engaged in substantial and not isolated activity within this state, whether such activity is wholly intrastate, interstate, or otherwise, [to be] subject to the Jx of the courts of this
state, whether or not the claim arises from that activity; prior suit not enough as it is no longer active; 2 prongs to satisfy Personal Jx: i. P must allege sufficient Jx facts to satisfy the forum’s long arm statute, then ii. P must show whether sufficient contacts exist to satisfy International Shoe’s req’s of Due Process b. Federal: use state’s long arm statute; Exception: when Congress mandated that federal courts have Jx (Dee-K). The reason it’s done this way is to avoid an Erie problem. Challenging Personal Jx: a. Rule 12(b)(2) b. PreAnswer Motion or Answer: have to challenge Personal Jx on the 1st document D takes to court (12(g), (h)) c. Special Appearance: Appear just to challenge Jx (court won’t assert Jx against you based on that appearance (costly)) d. Collaterally Attack: Ignore the action & challenge it when P tries to enforce it in your state (risky) Policies of Personal Jx a. Fairness b. Federalism (in the background) i. Interstate issues are addressed by Choice of Law rules not Personal Jx ii. National Federalism addressed by Subject matter Jx c. Notice d. Changing Technology e. Due Process Clause: 5th A said Fed Gov can’t violate Shoe, 14th A links the 5th and Shoe to all states
Venue A. 28 U.S.C. § 1391: Establishing Venue a. Party Based: where any D resides (any district) b. Claim Based: where a substantial part of the events or omissions giving rise to the claim occurred c. Is subject matter Jx based solely on diversity? i. Use 1391(a) ii. Party based venue ((a)(1)) or claim based venue ((a)(2)) iii. If neither of those yield an appropriate venue, can use fallback provision ((a)(3)): a judicial district in which any D is subject to Personal Jx at the time the action is commenced d. Is subject matter Jx NOT based solely on diversity? i. Use 1391(b) ii. Party based venue ((b)(1)) or claim based venue ((b)(2)) iii. If neither of those yield an appropriate venue, can use fallback provision ((b)(3)): a judicial district in which any D may be found e. Corporate Defendant: for purposes of this section, deemed to “reside” in any judicial district in which it is subject to personal Jx at the time the action is commenced (1391(c)) f. Alien Defendant: venue is proper in any district (1391(d)); Dee-K: alien D’s are covered in any District B. Transfer of Venue a. If venue is improper, court shall dismiss or transfer the case to another district where the case could have been brought (28 U.S.C. §1406(a)) b. If venue is proper, court has discretion to transfer the case to another district where the case could have been brought (28 U.S.C. § 1404(a)) i. Factors to consider: convenience of parties and witnesses, “interests of justice” c. 28 U.S.C. § 1631: venue proper but personal Jx lacking (transfer districts) C. Forum non conveniens: Only means for inter-system reallocation of cases a. Requires 2 elements: i. Court must have had power to hear the case originally ii. There is a more proper, viable, alternative forum available that is outside of the federal court system b. Gilbert: ordinarily a strong presumption in favor of the P’s choice of forum c. Koster: choice of forum is entitled to greater deference when the P has chosen the home forum; foreign P’s choice deserves less deference
28 U. Arising Under = federal ingredient b. Note: requires Complete Diversity (Strawbridge Rule – no P and no D can be citizens of same state (relaxed for class actions)) iii. Art III: judicial power shall extend to all cases… arising under the Constitution [and] the laws of the United States. laws. not as an affirmative defense (shield). SOL was longer – and they transferred back to MA.S. i. Citizens of different states and in which citizens or subjects of a foreign state are additional parties.S. Akenbrandt – Domestic Relations Exception: suits for divorce. and inexpensive ii. Federal Question Jx a. Redner: Citizenship is established by domicile plus intent to remain.C. 9th Circuit: if the Federal ingredient is necessary to the P’s success (vs. Note: only requires minimum diversity b. being one of a few ways in which the P could succeed). Public: court congestion. Subject Matter Jurisdiction A. expeditious. P admitted he is a citizen of US on face of complaint iv.000…. “What was dead is now alive again” f. Paul) . all other practical problems that make trial of a case easy. Mottley: (Train Pass Case) your federal Q must arise under the facts of your complaint (sword). § 1332(a): judicial courts shall have original jx of all civil actions where the matter in controversy exceeds… $75. Possibility of unfavorable change in law to P doesn’t bar dismissal by FNC e. less wait. Litigator might want to be in federal court b/c know judges. § 1331: judicial courts shall have original jurisdiction of all civil actions arising under the Constitution. Policies in favor of Federal Jx i. But SoL was up – went to MI and got general Jx there. P’s theory was he is a resident of a foreign state (France) and Ds are residents of NY. and 4. child custody fall o/s of diversity v. Federal Judges are appointed for life – insulation from political pressures iii. would ever award the P more than $75. A foreign state as P and citizens of a state or of different states ii. Citizens of different states 2. alimony. Citizens of a state and citizens or subjects of a foreign state 3.C. DC’s holding to transfer okay. § 1392) D. Piper Aircraft: Plane crash by a pilot flying below the recommended minimum altitude (just got his commercial license 3 mos ago) Pilot / Scottish D’s are either not lucrative D’s or are just not within the reach of US Jx Private and Public Interests: i. interest in court that knows the law (diversity action). Diversity Jx (established at time of filing)(Policy: preventing home town bias) a. unfairness of burdening citizens in an unrelated forum with jury duty iii.C. Fairness iii. May be more attuned to national consensus than local ideas iv. Connections between litigation and forum state Local Actions: some places might have a statute that said if the litigation is about a piece of land in a certain spot – that is where you have to litigate (28 U. allows sorting of matters before litigation 1. then the claim arises under federal law c. if the allegations of the complaint are true. Convenience ii. SC had Jx to hear the case the second time around b/c it fell within their Art III Jx (D had plead the federal Q by then) 2. And is between: 1. 28 U.4 d. AC Gave too much deference to the choice of forum by the P. Uniformity of interpretation of federal law ii. cost of obtaining attendance of willing witnesses. availability of compulsory process for attendance of the unwilling witnesses. Amount in Controversy: Not allowed in Federal Court if no reasonable finder of fact. Policies: i. juries drawn from different pool B. Ferens v. Arising Under requires satisfaction of the Well Pleaded Complaint Rule i. possibility of view of premises (if applicable). John Deere (note case): Guy in MA got hurt on a John Deere tractor. Private: relative ease of access to sources of proof. Art III: judicial power shall extend to… controversies… between citizens of different states.000 and have that award stand (St. local interest in having localized controversies decided at home.S. avoidance of unnecessary problems in conflict of laws or application of foreign laws.S. or treaties of the U.
(b) is the anchor claim in federal court solely on the basis of diversity Jx? 1. §1367 i. If you attack both SM Jx and failure to state a claim (Rule 12(b)(6)). Similar to Challenging Personal Jx.5 1. Rule 24: interveners v. Hard to value injunctive relief. Permissive Counterclaim: if unrelated – then there must be an independent jurisdictional basis c. b. Rule 19: joinder of persons needed for just adjudication iii. Supplemental Jx a. Partnerships: citizen of each state in which a partner is a citizen Challenging Subject Matter Jx Rule 12(b)(1) a.S. Difference is you cannot waive SM Jx (you can expressly or impliedly waive Personal Jx) c. Claims by P’s against persons made parties under i. 28 U. If only dismissed on SM Jx you can bring the claim again in another court C. an alien admitted for permanent residence shall be deemed a citizen of the state in which such alien is domiciled (§1332(a)) i. test is how related they are in time/space/logic – no bright line rule – Transactions or series of related transactions ii. Proposed to be joined as P’s under Rule 19 (joinder of persons needed for just adjudication) ii. Different parties can never aggregate their claims – EVEN if the claims arise out of the same incident b. can appeal it later if you tried and lost. Can piggy-back the amount in controversy but not diversity of citizenship i. can collaterally attack if you took a default. Exxon-Mobile: Where other elements of Jx are present and at least one named P in the action satisfies amount-in-controversy requirement. Corporate Litigant: for purposes of this section and §1441 (removal) is deemed a citizen of its state of incorporation and principle place of business (§1332(c)) e. diff state defamation laws time-consuming. Seeking to intervene as P’s under Rule 24 (interveners) c. NOT just time-consuming or burdensome – Jin: Falun Gong. Gibbs: set common nucleus standard. Split: 3rd Cir held opposite – cannot stretch the text that far (Daimler) d. Claims by persons: i. court treats it primarily as a 12(b)(6) and thus ruling has a claim preclusive effect d. F alien 1. (a) is the supplemental claim part of the same case or controversy as the anchor claim? i. D. (c) discretionary reasons why court may decline supplemental Jx: 1. Compulsory Counterclaim: If the P’s claim exceeds 75 – D can assert any counterclaim against P provided it arose out of the same occurrence d. Purpose is to preserve complete diversity rule b.e. Saadeh: D.C.C. Rule 20: permissive joinder iv. Alien Litigant: for purposes of this section and §1441 (removal). supplemental Jx does not extend to: a. If so. Claim substantially predominates over the claim(s) over which court has original Jx . [If adding those persons will destroy diversity of citizenship] d. use how much injunction is worth to both parties (higher $) 2. Exception: Have to share a common undivided interest in a single asset (title or right) c. §1367 does authorize supplemental Jx over the claims of other P’s in same Article III case or controversy. Rule 14: third party practice (impleader) ii. Circuit held text means only to eliminate SM (diversity) Jx btwn a citizen and an alien living in the same state (used legislative intent). but not uncertain) 2. S Greek citizen.. do the claims derive from a “common nucleus of operative facts”? 1. Claim raises a novel or complex issue of state law (law uncertain. even if those claims are for less than the jurisdictional amount specified in the statute setting forth the requirements for diversity Jx iii. Aggregating: Single P can always aggregate as many claims as he has against a single D – no matter if they are unrelated a.
there is no SM Jx” (12(b)(1)) b. E. (b) what kind of subject matter Jx is applicable? 1. CAN’T waive SM Jx (Mottley. §1447(c): If P wants to remand back to state court. BUT: parties’ actions can waive P Jx. (a) does federal court have original Jx over this case? (yes – can remove) ii. 30 days from when the case became removable a. Jurisdictional Issue – you are not challenging the case on the merits. Note: if Jx is based on diversity. fairness. Too late to challenge SM if you go all the way up the appellate ladder (cert. 12(b)(1) challenge of SM Jx. “Because there is no civil rights claim. If federal Q. convenience. Court has dismissed all claims over which it has original Jx (note: if dismissed on the merits court can retain Jx on supplemental claims) 4. denied) b.C. 28 U.Van Noorden: guy challenged own SM Jx when he lost) iii. don’t want to force P into a Hobson’s choice – assert all claims in state court or prosecute claims in fed and state simultaneously.6 3. There are other compelling reasons for declining Jx iv. Within the allotted time period (§1446(b)) 1. Dismissed on SM – you can bring the claim again in another court (12(b)(1)) a. Note: A corporation is a citizen of its state of incorporation and principal place of business for this provision (see §1332(c)) c. with one possibly claim precluding the other Challenging SM Jx: Focus on Rule 12 i.S. case is only removable if none of the Ds are citizens of state in which suit is filed a. moving case from state to federal court b.S. Merits – no cause of action (12(b)(6)) a. Case must be properly before the court at time of removal. If you attack both – court treats it primarily as a 12(b)(6) c. SoL for any claim asserted under (a) that is later dismissed shall be tolled while the claim is pending and for a period of 30 days after it is dismissed (unless state SoL has yet to run out or provides for more time) 2. §1441: Generally: i. a later cure of defect will not suffice . 28 U. (d) statute of limitations tolling provision: 1. 30 days 2. Removal Jurisdiction a. 12(b)(6) failure to state a claim iv. just the court’s authority to hear it (similarity between P Jx and SM Jx) ii. (Jin v. No claim preclusion – only for that specific court (case?) b. Different from a transfer of venue. Ministry of State Security).C. He or she must provide a short and plain statement on the grounds for removal (§1446(a)) ii. 12(b)(2) personal jx. If the case was immediately removable. citizenship of D’s does not matter 2. no time limit e. Power to toll arises under Necessary and Proper Clause Justifications for Supplemental Jx: judicial economy. If diversity. Future claim preclusion effect (Semtek) 2. regardless of if it later becomes available d. Note: An alien is a citizen of the state in which he is domiciled for this provision (see §1332(a)) b. c. has to file a motion within 30 days i.C. cannot remove more than 1 year after commencement of suit.S. If case was not removable at initiation. Exception: if remand is due to lack of subject matter Jx. 28 U. Difference in result in attacking case based on SM Jx or merits 1. §1446: For a D to remove a case: i.
Stewart: forum selection clause. not filing of complaint as under Rule 3. found statue on point (apply federal rule – which in this case simply looks to what the state would do “in the interests of convenience of the parties and justice”) ii. at the time of filing in a diversity action 1. Grupo: A party's postfiling change in citizenship cannot cure a lack of subject-matter Jx that existed ii. Had incomplete diversity at time of filing. Burlington: state automatic 10% punishment for loser in appellate case (apply federal rule of appellate procedure b/c states that “damages may be awarded for frivolous appeals”) 2. Circuit Court can’t do it: 7th A: “no fact. Supreme Court has stretched “on point” 1. but complete at time of trial 2. Ragan: state law determines when an action is commenced (upon service of D. Determining if rule/statute is on point: i. shall be otherwise reexamined in any Court of the United States” . Supreme Court has also limited “on point” 1. Gasperini: judge reviewing jury awards. bulldozer accident with multiple P’s/D’s – settlements solved problem of complete diversity Erie Doctrine Issue: when a federal court is sitting in diversity (or in a federal Q case with a state law supplemental Jx claim). read Rule 3 narrowly to avoid application) 2. tried by a jury.7 i. how do we decide which law to apply? Post-Hanna Steps to an Erie Problem: 0) Is there a conflict btwn federal and state law? 1) Is there a Federal Rule or Statute on point? (see Hanna) a. Distinguished from Caterpillar b/c Grupo was a change within a party not a dismissal of a party But see Caterpillar: it would be a waste of judicial resources to vacate this judgment based on the court’s error of retaining Jx despite lack of complete diversity 1. and the state and federal laws differ.
state rule is merely a form and mode of enforcing a right. A federal court sitting in diversity must apply the conflict of law principles of the forum state (Klaxon) d. ask if the rule/statute is constitutional (answer is almost always yes) and then apply that rule i. whether made by the state legislature or the state supreme court i. etc. loss of consortium.e. Will it lead to inequitable administration of the law? Goals are: i. Compensatory Damages: Supposed to place P in her rightful position – the position she would have been in had the D not committed the wrongful act i. Erie History a. But spirit of Erie said that we should give some deference to state law – let DCs do it as permitted under the common law. Non-Economic Damages: Pain & Suffering. Semtek: Claim preclusion. apply state law i. State rule that will encourage forum shopping b/c of different outcomes must be applied. If the answer is yes. Don’t want different outcomes based on where you live b.if the case is in federal court based on diversity. Erie) a. go to step 2 2) Is the state practice bound up with the state created rights and obligations in such a way that its application in federal court is required? (see Byrd) a. Erie: overturned Swift . Byrd: substantial federal interest. Rules of Decision Act (28 U. Rule 4(d)(1) applies and thus federal law wins A. apply the state law i. deference to state courts as lawmaking bodies i. But: federal courts are an independent judicial system with the autonomy that statement implies B. keeping in mind the twin aims of Erie? (see York. If the answer is no. whether it is labeled substantive or procedural (OD Test created here) ii. the laws of the State apply. humiliation. York: SoL. Byrd. no FRCP on point. Hard to measure. Tyson: interpreted the RDA as not requiring federal courts to use state case precedents as part of the “laws” of that state. Example: §1332: Congress has power to shrink power of courts.). would the cause of action look different if you did not apply this practice)? Is it merely a mode of enforcement? (see Byrd) b. Ask jury to measure one hour or one day’s suffering and multiply it by a lifetime 3. Encouraging the equitable administration of the laws b. Hanna: service of process is procedural. harm to reputation 1.8 a. Economic Damages: Money P has lost or had to pay ii. but Congress can’t expand power of courts Remedies A.S. emotional distress. If the answer is yes. Swift v. DC judges had more leeway here than AC judges b. Legislatures try to aid predictability by barring certain damages or capping them . Can also ask if it is beyond the scope of the Rules Enabling Act (not procedural) Yes c. Jury instructions give little guidance 4. modify or abridge any substantive right i. Rule of thumb: P&S = 3x the economic damages 2. If the answer is yes. “general” common law is the same to all c.C. apply the federal law i. Rules Enabling Act – SC has power to issue FRCP – but can’t enlarge. Substitutionary Remedies a. If the answer is no. Discouraging forum-shopping ii. Determining if the practice is “bound up”: ii. §1652): laws of the several states shall be regarded as rules of decisions in civil actions in the courts of the US. Autonomy of the Federal Court is very important – and essential characteristic of that system is the distribution of functions between judges and juries (issue was whether judge or jury will decide whether P was Ee or IC) 3) Is choice between two practices outcome determinative. Has the state given a reason for this practice? Is the rule an integral part of the rights and obligations of parties (i. Erie Doctrine Policies a. Exception: we will not copy state law if state law is incompatible with federal interests c. go to step 3 i. in cases where they apply b. res judicata effect of a federal diversity judgment is such as would belong to judgments of the State courts rendered under similar circumstances – SC chose to apply state law – is thus applying Federal law 1. If the answer is no. Limited Federal Government – doesn’t have power to dictate certain things to states (contract law..
Liquidated Damages: contractual. by clear and convincing evidence ii. efficient as injunction – “tie goes to damages” b. Court held that the award could not be based on national activity and injury. Land – it is considered unique. Statutory Damages: like LD’s. “In practice. generally need to prove willfulness or malicious intent. can’t calculate lost competitive advantage c. Supreme Court has struggled with Punitive Damages v. Doesn’t have to be only available relief iii. Courts have broad power within reason to do justice – to do equity – always an ace card after you’ve exhausted your legal remedies C. P gets restitution for value of stock B. Declaratory relief actions do not fit comfortably inside the Well Pleaded Complaint Rule ii. Browning-Ferris (1989): held that Due Process Clause places outer limits on the size of a civil damages award made pursuant to a statutory scheme vi.9 b. Campbell (2003): Insurance bad faith. Rule: ***If either party could state a claim for coercive relief that would arise under federal Jx. Degree of Reprehensibility (It’s a paint job! —it’s just not that bad) b. 2) relatively rare. Two views: 1) unpredictable and out of control. Restitution Damages: Make sure D is placed in his rightful condition – where he would be but for his wrong. and it is in a setting where actual damages are difficult to ascertain c. Sigma Chemical: Damages are inadequate. $25M punitive 1.S. Can test constitutionality of legislation – but – must have an actual case or controversy (under Article III) d. “Judgment proof” D – D doesn’t have the money to pay damages iv. Substantive Approach from BMW v. impossible to calculate – injunction granted. Used in all types of litigations – most often in patent and insurance i. Limitations – must look like a good faith estimate of what actual damages were likely to be. money can’t replace that piece of land iii. Declaratory Relief a. try to agree beforehand about the price of the harm i. Injunctive / Specific Relief a. Punitive Damages: aim to punish the D for wrongful behavior. Rule 57 – Declaratory Judgments i. Non-Jurisdictional Problems: . Two exceptions: State and federal taxes ii. uses money to buy stock that triples.000 iv. State Farm v. then an action for declaratory judgment will “arise under” federal law e. May be different if have a history of past misconduct) d. Gore: Three Guideposts a. Jurisdictional problems: i. Recognized that in low damage cases an award exceeding a single-digit multiplier may be appropriate e.C.. Note: for preliminary injunctions we do balance the interests of the parties. $145M punitive. median amount is about $50. not specifically tied to the amount of loss suffered d. few awards exceeding a single-digit ratio between punitive and compensatory damages will satisfy due process” 3. Ratio btwn CD and PD (500 times the amount of actual harm=Not reasonable) c. Court reduced to $1M compensatory. Can have a trial by jury ii. but then quit and stole clients. Sanctions for Comparable Misconduct (No other states imposed this high of punishment. but that is only b/c we don’t yet know who is right or wrong ii. but only state activity and injury (procedural approach) 2. Harris signed noncompete. i.e. Court can order a speedy hearing and may advance it on the calendar c. §§ 2201 and 2202) – parties may seek a declaration of their rights without any coercive relief such as damages or an injunction b. Declaratory Judgment Act (28 U. D steals a wallet. If damages are as complete. No “ill gotten gains” (really an equitable remedy) i. Jury: $2. can introduce testimony about D’s net worth so court can judge what would hurt iii. exception to the general rule that damages serve only to compensate the P i. Injunction: Available when P demonstrates that she will suffer irreparable harm and there is no adequate legal remedy (Irreparable Injury Rule) i.6M compensatory.
by statute. Eldridge Balancing Test: how to determine how much process. Usually lasts during the pendency of the case – until the case is resolved on the merits ii. contingency fee (sliding scale based on length of suit). Rich Ps – can pay hourly. American Rule: each party pays own fees i. Preliminary Injunction: sought before an adjudication on the merits i. Rich Ds – can pay hourly. stove/stereo ii. Poor Ds – legal services. including the function involved and the fiscal and administrative burdens that the additional procedural safeguards would entail E. Who has burden of proof? iii. Must the D always counterclaim to protect her interest? (if it arises out of the same transaction or occurrence) ii. Financing Litigation a. Due Process Concerns i. and sometimes have insurance to cover 3. and probable value. Alternative Test: If the harm that may occur to the P is sufficiently serious. 1) Comparative irreparable harm if injunctive relief is not granted b. Flat Rate (for predictable work – like wills). winner is made less than whole b/c some of damages goes to paying fees ii. Can shift by contract. only works where there is a fund created . Fuentes v.10 i. Jury trial ok? D. Provisional / Preliminary Injunctive Relief a. Asking in anticipation of filing an lawsuit – most preliminary of Preliminary Injunctions ii. Shevin: except in unusual circumstances. Hourly fee (most common). 2) Likelihood of success on the merits i. docket fees. of additional/substitute procedural safeguards 3. Poor Ps – can use Contingency Fee 4. Private interest that will be affected/deprived by the official action 2. and sometimes still use Contingency Fee 2. court appointed experts. Balance these Factors = cost benefit calculation 1. if any. or that balance of hardships tips sharply in P’s favor 1. Common Fund: named representative gets fees paid for. Financing Mechanisms: i. Will stay in place for a week or two – only long enough to get a preliminary injunction d. court reporter fees. Rule 68 – loser pays costs made after a settlement offer if offer is greater than final judgment amount v. repo case. by common law (public interest cases) ii. Must show probable success & possibility of irreparable injury. insurance. English Rule: losing party pays both own fees and winning party’s fees. 28 U. P usually must post a bond – this is the D’s only remedy in the event of a P loss c. it is only necessary that there be a fair chance of success on the merits iv. Temporary Restraining Order: Type of Preliminary Injunction – but asking even sooner i. prejudgment seizure of a debtor’s property without notice and an opportunity for a hearing is unconstitutional. § 1920: costs include: clerk/marshal fees. 3) (sometimes) Granting the injunction is in the public interest iii. Generally: 1. permits litigants with tenable but uncertain (or unpopular) cases to invoke the legal system w/o fear of having to bear expenses of other side’s fees iii.S. Government’s interest. Matthews v. Permanent Injunction: after a claim has been adjudicated on the merits b. printing and witnesses fees. interpreters b. Risk of erroneous deprivation of such interest through procedures used. copies of papers fees. Often ex parte iii. in purest form – fully compensates winner c. Fee Shifting: Way to move attorney fees to loser pays i. public subsidies and professional charity (legal aid) ii. William Ingliss Baking: Preliminary Injunction Rules: need: a. legal aid – pro bono service/government funding d. multiply each side’s chance of winning by their irreparable harm c.C. Rule 54 – loser pays costs iv.
Haddle v. Winning on the merits counts. (2) short and plain statement of claim showing that pleader is entitled to relief. ii. Haddle v. Haddle v. Interpretation of “property interest” wrong – it is not the loss of the job. Garrison: legal theory did not constitute an actionable claim d. (3) demand for judgment (relief sought) iv. intent. Fee Shifting by Statute: Usually authorize courts to award fees to parties “in any action which has resulted in the enforcement of an important right affecting the public interest” * Enforcement of Civil Rights * i. dispute is about interpretation of law i. were being told to shut down b/c they violated state regulations. If the waiver was part of a vindictive effort to teach counsel not to bring such cases ii. if shown to be true. Complaint: a. Garrison (1997): appeal – dismissed on same grounds (need en banc to overturn) iii. and iii. Chesney) 2. Rule 8: premised on idea that the purpose of pleading is to put others on notice of what is going on. Jeff D. “even if everything you allege is true. at least by reference. knowledge. Garrison (1998): appeal to USSC – overturned: 1. state repealed regulations. Rule 23(e) wisely requires court approval of the terms of class action settlements to ensure fair treatment of class members 4. Garrison (1996): Law not sufficient. Note: Catalyst theory (winning b/c suit caused the D to amend their actions according to relief sought) is not applicable – exactly what happened here 5. Pleadings must do two things: i. a body of substantive law. Buckhannon Board & Care Home v. 2) P’s legal theory doesn’t work (LAW) 1. “Judicially sanctioned change in the legal relationship of the parties” 3. Two Types of Pleading Failures: 12(b)(6) i.11 e. Sketch a factual scenario that. 1) Not stating enough facts to constitute a legally actionable claim (FACTS) 1. include as much as is necessary to inform b. H is an at will employee – precedent states that he has no constitutionally protected interest in continued employment – no actual injury. Leave to Amend allowed: Court will usually give the P an opportunity to provide additional facts ii. the law affords you no relief. Fee waivers can be refused when: a. Haddle v. (1) allegation of jurisdiction. Consent decree of a settlement counts 4. but with a waiver of fees – acceptance of this waiver not violation of statute (Prevailing Parties in this sort of case (Civil Rights) can be awarded attorney’s fees) 1. Complaint (pleading) and Answer (responsive pleading): Notice pleading – informative pleading i. W. Note: almost all appellate courts used catalyst theory – it was like stare decisis Pleading A. Virginia Dept of Health & Human Services: Unilateral decision by D to change conduct in a way that “moots” the case. More than half of 12(b)(6) motions are this 2. and other condition of mind of a person may be averred generally) . falls within that body of law c. D had no realistic defense on the merits. 12(b)(6): attacks the legal sufficiency of the claim. P can prove “no set of facts in support of his claim which would entitle him to relief” ii. Prohibiting waiver could impede vindication of civil rights by reducing attractiveness of settlement (Marek v. Invoke. Pleading: Formal process by which factual allegations are communicated to the court and the other parties a. Exception: Rule 9(b) require pleading with particularity the circumstances constituting fraud or mistake (Malice. Rule 8(a): Claim for Relief: Pleading that states a claim for relief must contain: i. Leave to Amend usually not allowed: can’t fix a problem in the law with more facts (unless they are reasonably evidentiary) 3.: D’s offered a settlement granting virtually all of the injunctive relief. Judicial action – court has to be involved in the resolution of the lawsuit 2. or b. it is the right to avoid third party interference in employment relations B. Prevailing Party “Rule”: can get fee shifting if: 1. ii. Evans v. May recover more through settlement than trial – and do so earlier and cheaper 3.
(1) Lack of subject matter jurisdiction. Toledo (1980): Police officer fired. alleges D fired him in retaliation for whistleblowing. if by attorney request. place. (2002): Dentist is suing the insurance company for additional claims after Company had already paid some – “business interruption” 1. estoppel. Court: Rule 11 doesn’t require you to prove anything – just allege reasonable things – can do it if you need discovery to back up your allegations iv. Z is saying that S lied about the timing – Z has already offered to fix the lack of particularity by amending its complaint 5. Official acting under color of law is immune from suit if he didn’t know he was doing something illegal 2. Note: Statute of Frauds and Statute of Limitations have built-in affirmative defenses – so the P might be required to negate them in the complaint by some additional allegation (fraud. Rule 11 (sanctions): triggered by signing/filing pleading. Stradford v. attorney believe document is not being presented for improper purpose. Procedure: Court may impose Rule 11(c) sanctions by attorney request or on own initiative 1. there is evidentiary support for this claim. court also cited P’s atty’s conduct 1. Norwest: No diversity of citizenship – filed in federal court based on diversity 1. Challenge legal sufficiency of complaint with 12(b)(6) motion to dismiss i. D has burden of pleading/proof/persuasion that he acted in good faith in his actions – and was thus immune as a government officer 1. . 21 day safe harbor provision applies (Rule 11(c)(2)) iii. Garrison) d. Burden of persuasion: one must persuade the trier of fact that one’s version of the facts is more likely than not to be true 1. Accused must have notice of which claim is alleged to be false 4. Zurich Insurance Co. waiver) C. Mattell. Rule 8(d): allows pleader to set forth inconsistent claims or defenses c. Gomez v. Violations of Rule 11 must be based only on paper violation in pleadings e. applies b/c of presence of fraud – exception to Rule 8 3. No reasonable investigation – violates Rule 11 3. Walker v. Purpose of 9(b) is to afford a litigant notice of the claim and factual ground v. and denials are warranted ii. Co. Note: usually they go together iv. Statute did not set out immunity as AD or part of CoA. Requires the “time. Burden of pleading: one must allege that element of the claim or defense ii. Burden of production: one must produce evidence that tend to demonstrate the proposition at stake iii. Not enough facts to constitute a legally actionable claim ii. Inc. but facts are in control of D and nothing in statute suggested this was part of the CoA 3. (3) Improper venue. 3. Rule 12(b) Motions: may be raised as pre-answer or with answer 1. Response to Complaint a. Problem: Rule 9(b): allegations must be stated with “particularity the circumstances constituting fraud or mistake” – Z needed more detail. (2003): Problem is a factual misrepresentation. Allocating the Elements: i. (2) Lack of personal jurisdiction. Legal theory does not constitute an actionable claim (Haddle v. Ins. and nature” of the misrepresentations 2. Law is clear that it is P’s burden to establish Jx 2. Court: misunderstanding of diversity – complaint mentions minimal diversity and not complete 3. Pre-answer Motions: i. P alleged that Claudene doll’s copyright predated Barbie’s copyright. or other papers i. Rule 11 Limitations: Christian v. (opposite of 8(a)(1)) 2. claims/defenses are not frivolous. motion. counterclaimed: Dentist “knowingly and willfully devised a scheme and artifice… to defraud D’s & obtain money by false pretenses & representations” 2. Easy because of the stamp on the back of the Barbie head of a prior date 2.12 1. 11(b): Standards: after a reasonable inquiry. So S wins on his 9(b) attack – but Court affirms ability of Z to file the amended complaint b. Note: Qualified immunity now requires: objective reasonableness of D’s actions v.
12(h)(1): Waivable defenses: lack of personal Jx. (6) Failure to state a claim on which relief can be granted. if you need more info. Answer: i. “New Material” idea: if you are conceding P’s allegations & bringing in something new c. (1956): PPI used a general denial. 5. duress. move for a 12(b)(6) Rule 12(f): Motion to Strike (rarely used) 1. (opp of 8(a)(2)). discharge in bankruptcy. waiver 2. (1977): L sued S alleging trespass on her land and installation of underground wires/cables without her consent. immaterial. iv. d. license. illegality. arbitration and award. res judicata. failure to join a party. assumption of risk. and insufficient process/service of process 3. latches. If D fails to deny an allegation it is admitted where a responsive pleading is required 5. General denial: D in good faith denies all allegations of complaint b. too late for Z to go after real D a. D can so state & that statement is treated as a denial 4. improper venue. List is not exhaustive 3. failure of consideration. you wouldn’t if you simply denied iii. ii. Judge deemed something not true to be true – basically held PPI to their denial and allegations. Southwestern Bell Telephone Co. including: 1. Okay to have this inconsistency b/c the system requires lawyers to make allegations before they are certain of the facts and the law Reply: if answer contains a counterclaim designated as such. contributory negligence. Rarely used.13 (4) Insufficient process. iii. S’s defense was that they had an easement. SoL. Rule 8(b): when a pleader intends in good faith to deny only a part… he shall specify so much of it as is true & material & shall deny only the remainder b. lack of SM Jx. 6. Rule 15(a): allows amendment before response or within 20 days of serving the pleading if a responsive pleading is not allowed and the action is not yet on the trial calendar. (5) Insufficient service of process. redundant. To deny leave to amend – “prejudice must be shown” c. failure to state a legal defense 4. Careful – pleading an issue as an affirmative defense often means you have the burden of proof. estoppel. avoiding prejudice – at some point other party must be able to make decisions on how to present its case i. If you fail to make a motion when you can – then you usually waive it 2. D must state in short and plain terms its defenses 2. (7) Failure to join a party under Rule 19. D must admit or deny the allegations a. otherwise can amend by leave of court or written consent of adverse party 1. Rule 8(b): 1. Exceptions: 12(b)(6). 7. injury by fellow servant. Rule 8(c) Affirmative Defenses: party must affirmatively state any avoidance or affirmative defense. must reply per Rule 7(a)(3) Amendments: Two opposite goals: easy amendments to allow pleadings to reflect changes. Inc. . If D lacks sufficient information. release. b. Rule 12(e): Motion for a More Definite Statement. impertinent. both PPI and CC have the same insurance – same pocket pays in either case ii. Used to strike portions of the claim that are unsupported by law. payment. Surprise Principle: if the information would be a surprise to the P b. Specific denial: D admits or denies each allegation in whole or in part 3. or scandalous Rule 12(g) and (h): Consequences of making a Rule 12 motion (or not making) 1. statute of frauds. but did not raise as AD Affirmative Defense must be raised in the pleadings. Accord and satisfaction. Layman v. Denials: Zielinski v. fraud. Philadelphia Piers. but part of the allegation was correct. Rule 8(c): see list – what if not on list? a. Rule 8(e)(2): Consistency in Pleading: a party may set forth 2 or more statements of a claim or defense alternately or hypothetically and a party may also state as many separate claims or defenses as he has regardless of consistency 1.
that is relevant to the claim or defense of any party”. Scope of Discovery a. M sued B for violation of GA’s informed consent law. or with judicial approval – to the subject matter i. amendment which changes legal theory is appropriate if the factual situation upon which the action depends remains the same and has been brought to the D’s attention by the original pleading b. transaction. Purposes of Discovery: i. Consumes a huge percentage of the time/money spent on a case e. to seek discovery “regarding any matter. not privileged. Otherwise you need permission but they should give it if it is in the interests of justice 2. Caron Foundation (1994): B was a patient at R (rehab) & was playing basketball during mandatory exercise. B moved for SJ on the issue of informed consent. liberal leave to amend b/c unfair to punish A for damage done by a slide it never manufactured. or occurrence set forth or attempted to be set forth in the original pleading” 1. Aquaslide ‘N’ Dive Corp. Narrow the dispute that is reflected in the pleadings. Allows screening out of losing cases b. Baker (1993): M consulted B about a blockage of an artery. so we really know what is/isn’t in contention iii. iii. Discovery A. negligently maintained the BB court. Allows the parties. Rule 26(b)(1): Relevance: to a claim or defense. Test is NOTICE: Whether original complaint gave notice to D of claim now being asserted 3. Allegations in the original complaint contain notice that the P thought the D’s rehabilitation and counseling care rendered was negligently. 1.14 2. B recommended surgery and warned her about risks. Rule is somewhat liberal 20 days or before responsive pleading served – usually get one time. Formal process to obtain evidence from the other party or nonparty witnesses that will be useful at SJ or during the lawsuit a. Creates potential for abuse – May have to match the aggressiveness of the other party in order to serve your client f. Operation went badly – M severely and permanently disabled. carelessly. and unskillfully performed ii. Negligence did not relate back to original date of original pleading b/c original complaint did not give B notice of possible negligence claim (usually N claim would go first) 4. M signed a consent form. can’t defend someone else’s product design a. Allow each side to get the best available evidence to prove its version of the truth 1. Beeck v. from that clash/competition the objective best answer or truth will emerge c. B moved for substitution of new counsel. Possible that Beeck could sue real manufacturer: If your fraud makes it harder for people to sue you – then you are not protected by the SoL Rule 15(b): gives judicial discretion to amend during trial. You have a right to “every man’s evidence” 2. If party shows “good cause” the court may grant even broader discovery “of any matter relevant to the subject matter involved in the action” 2. Relevant if “the discovery appears reasonably calculated to lead to the discovery of admissible evidence” 3. Moore v. should freely give leave when justice so requires Rule 15(c): amendment relates back to date of original pleading “whenever the claim or defense asserted in the amended pleading arose out of the conduct. Bonerb v. (1977): A allowed to amend pleading to state that slide was not theirs. Richard J. A few weeks later… M moved to amend her complaint to assert allegations of negligence (SoL had run) a. A couldn’t really defend on the merits. w/o court approval. B was injured when he slipped and fell. Preserve information that may not be available at trial ii. Generally driven by the parties – not really controlled by the courts until or unless someone complains that the other side is not playing fair d. then B moved to amend complaint to add new cause of action for counseling malpractice a. Irrelevant – it is presumptively non-discoverable (there are exceptions) . Can’t have judicial oversight of all discovery b/c that would overtake all judicial work B. Liberal generous discovery rules are in response to Rule 8 (short and plain statement) i. If both sides are given the most leeway to make the strongest argument they can.
Depositions (Rules 28. office. Case for racial discrimination. 31.lawyers. Interrogatories (Rule 33): much cheaper b/c one can inexpensively frame a set of appropriate questions. time frame – okay 1. doctor-patient.15 ii. Failure to answer a question can be considered contempt b. presumptively non-discoverable (privilege can be expressly or impliedly waived. drawback: total number of depositions taken by one side (P or D) may not exceed 10 w/o permission of the court. 32): more expensive and very useful. damages calculation. During the Lawsuit – the Navy asked him if he had engaged in homosexual conduct during or after he was a midshipman 2. 3. not represented by counsel. and wait for answers i. but was confined to place. attorney-client. Rule 37: Failure to make disclosures or cooperate with discovery: a. Cheney (2002): S resigned from US Naval Academy after a board recommended he be discharged. no person may be deposed a second time w/o permission of the court or the other side d. Precoat Metals (2002): discovery requests must be narrowly tailored to the specific allegations of the P’s complaint. drawback: $$ . recording. Sidari distinguishable b/c that P wanted all types of unequal treatment complaints – not just the same type iii. recommendation based solely on S’s statements proclaiming himself a homosexual 1. Rule 26(f): requires parties to meet without the judge to discuss the case “as soon as practicable and in any event at least 21 days before a scheduling conference” iii. the disclosure will occur no later than 85 days after that appearance iv. can follow up evasive questions and explore new avenues of inquiry i. Deposition on Written Questions (Rule 31): lawyer sends written Qs to the court reporter who asks the questions. not underlying facts. Chavez distinguishable b/c that P wanted complaints for employees who did not work at the same place (company wide request) 3. within 90 days after a D’s appearance or 120 days after service. send it to the adverse party. Main Purpose: to discover the people you want to depose c. and insurance agreement to opposing party w/o request i. 4 months after the complaint is served on the D 2. His conduct is irrelevant b/c the legal theory of the government was based on his orientation – NOT his conduct iv. cheaper than full depositions C. Steffan v. No sanction if its imposition was based upon an error of law 3. Rule 26(b)(2) Limitations: court may limit discovery if it is unreasonably cumulative or duplicative. less burdensome. very large case (judicial supervision will displace the Rules) b. Note: all employees of a corporation are covered by corporate counsel-employee privilege b. or the burden or expense outweighs its likely benefit Discovery Procedures: a. no judge – have to file “Motion to Compel” if other side isn’t answering. parties exchange the required disclosures at least 7 days before scheduling conference. obtainable from another source more convenient. etc. no deposition may exceed a day of 7 hours. End result: 1. 30. Required Disclosures: Rule 26(a)(1): parties must give names of witnesses and descriptions of documents to support claim or defense. judge shall hold a “scheduling conference” to discuss discovery and pretrial proceedings ii. Sanctions can be brought under 37(b)(2) c. but not abused) 2. and at the latest. Exceptions: no Disclosure if: 1. . May only be sent to a party – non-party witnesses must be deposed iii. Davis v. usually only good for fairly routine specific information (which usually is already discovered in the required disclosures). Discovery order was about other discrimination issues. small case. or less expensive. Privileged information is not subject to discovery 1. Usually: where D has appeared. drawback: can’t follow up evasive answers. Rule 16(b). can only ask 25 Q’s w/o permission of court or agreement from adverse P ii. privilege only shields specific source. Court said it might not be admissible but relevant to show pattern 2. well-developed record.
In Controversy: usually stems from a P placing their injuries in controversy in the pleadings. obtain their substantial equivalent by other means b. D. or undue burden or expense. and not privileged – communications were with non-clients E. Can have very broad requests: seek all documents in the custody or control of the responding party that “refer. a disagreement about whether a Q is justified? Requests for the Production of Documents. court holds most of the exams are unwarranted under Rule 35 (only eye exam survives) 1. not often given) f. Holder (1964): bus/semi accident. Note: standard for Rule 35 similar to fraud standard in Rule 9 Rule 36: Requests for Admission: Must admit issues that are true. wanted to depose attorney about the investigation and interviews ii. OR from a D placing their condition in controversy as support or in defense of a claim 2. Good Cause: Affirmative showing that there is reason to believe that there is a medical or mental problem that needs to be explored 3. P wanted to get a look at the written statements of the witnesses given to the attorney. party moves for physical and mental examinations of S (bus driver). When the mental or physical condition… of a party… is in controversy… the court… may order the party to submit to a physical or mental examination. If you fail to admit or deny within 30 days. Stalnaker v. Tension btwn protecting people from harassment/embarrassment/expense and justice Work Product Protection: a. oppression. Hickman v. Party: send a Rule 34 request 2. hard to follow leads and guide deponent.16 i. Rule 26(b)(3): Work Product: Materials prepared that are insulated from discovery: i. and Land (Rule 34): i. but only to the terms of the settlement (real issue that K wanted to protect (D’s sexual harassment info) is discoverable under the order) iv. drawback: harder to frame follow up Qs. accountants. cannot. Must submit a particular and specific demonstration of fact. but embodied in a subpoena under Rule 45(a)(1)(3) ii. Attorney for tugboat owners conducted an investigation and interviewed survivors/witnesses about the sinking i. g. alternatively: Can Answer and specifically deny i. obtaining documents differs depending on party or nonparty: 1. This stuff is totally relevant. Rule suggests that the requested facts be deemed admitted (some courts follow this) ii. Rule 26(c): gives a judge power to enter “any order which justice requires to protect a party or person from annoyance. as distinguished from stereotyped and conclusory statements iii. 2) includes consultants. Kmart Corp. wanted attorney’s memos describing and analyzing the interviews. But that party has the burden to show good cause for the protective order ii. Schalgenhauf v. embarrassment. NonParty: similar request. Rule 34 permits inspection of land and objects. NO limits on the number of document requests iii. relate or pertain in any manner” to subject X 1. without undue hardship. 1) have to be “prepared in anticipation of litigation” ii. what happens if there is e.” b. . (1996): A party is entitled to request a protective order to preclude any inquiry into areas that are clearly outside the scope of appropriate discovery i. Kmart granted protective order. experts iii. Order may be made only on motion for good cause shown and upon notice to the person i. If they don’t admit a fact and you prove it to be true at trial – court can order you to be reimbursed for the costs of proof (Not very common. Protective Orders: a. Things. 3) Exception: substantial need for the materials to prepare case. Taylor: P sued for wrongful death when husband died in a tugboat sinking. Issue of who bears the costs? Physical and Mental Examinations (Rule 35): requires a special application to the court and a showing of “good cause”.
ii. sought to bolster the pre-discovery planning process to eliminate as many of these issues as possible though early meetings. clerk must enter judgment for that amount and costs against a D who has been defaulted for not appearing (exception for minors. excusable neglect . Summary Judgment b. Statistics a. Settlement or Consent decree iii. or respond to request for inspection (retail violations) ii. addressed special problems of digitized information: some info requires software. iv. that by virtue of the American Rule. Two Types of non-compliance: i. Rule 55(b) entering default judgment i. Mistake. serve answers to interrogatories. court may investigate to determine proper relief (P must prove) c. Each side can influence the likelihood of an overlap to the extent that each side can influence the other side’s costs without incurring their own d. (2) By the Court: all other relief sought. inadvertence. Rule 55(a) when a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend. consumes a large chunk of the lawyer time/fees on a case ii. some info is periodically written over in normal operations iv. analysis. (1) By the Clerk: if for a sum certain. if you can impose costs on the other side. 2006 Rules Revisions sought to address these new questions by (4 steps): i. and possibly overly-punished G.17 iii. E-Discovery: a. Court creates doctrine called “work product” that is designed to insulate from discovery materials that include or reflect the lawyer’s own thoughts. Cases settle when a D’s expected exposure is as high or higher than the P’s expected recovery 1. D: value = likelihood of P’s success on the merits * what an award would likely look like if D does lose plus the costs of litigation iv. Adds difficulties to the discovery process in both scale and concept b. incompetents) ii. Rule 55 (c) court may set aside an entry of default for good cause i. Rule 26(g): requires parties to sign all of these documents (Rule 11 sanctions) and punishes the parties for unjustified requests and refusals. Rule 37(d) and 37(g): failure to attend own deposition. Each side values a case according to a number of variables: 1. There are limits on parties ability to keep things from public view B. Stamp the words “work product” on all documents F. provided mechanisms for sampling the accuracy of digitally produced info iii. suggests that attorneys fees will be an appropriate sanction c. Adjudication means a resolution of the case on the merits by the court iii. Maybe the actual statements might be discoverable c. Rule 37: punishments range from awards of expenses. Rule 37(b): failure to comply with a court order (serious) b. 12(b)(6) – motion to dismiss for failure to state a claim. Exceptions: Rule 60(b): court may relieve a party from a default judgment if there is: 1. instincts. agreement. surprise. Out of every filed complaint – only 2% result in a full trial (1 in 50)(state and federal courts) i. added explicit mention of digital materials to make it clear that document production is same under the Rules whether it is hard or digital ii. Why do People Engage in Discovery Abuse? i. 70% . and cooperation Resolution without Trial A. Every time you write up a document. Default Judgments: a. sprinkle in some of your own impressions (weave them in to protect the document from disclosure) d.? i. Profitable. Dismissal for lack of personal jx/subject matter jx/etc. Record your impressions as you do an interview – your value added e. Courts do not like getting involved in Discovery Abuse – often results in wrong side being punished. P: value = likelihood of success on the merits * likely recovery amount less fees and costs 2. and that failure is shown by affidavit or otherwise. to dismissals of an entire case or the entry of default judgment. Rate of Adjudicated cases has remained constant – 30% of all filings lead to adjudication ii. Non-Compliance & Sanctions (Rule 26(g) and Rule 37): a. the clerk must enter the party’s default b. are likely to stay on that side – then that works to your advantage iii. etc.
Contracting for Confidentiality: Kalinauskas v. Contract/Release: simplest form of settlement. multi-Ds ii. want info from settlement of similar case: i. improper venue. Dismissal operates as an adjudication on the merits unless it is one for lack of Jx. D must have actual notice of the action in order to defend himself (or settle/satisfy the claim). misrepresentation or misconduct by other party 4. Sue for breach. Compare to Kmart – sexual harassment one – limited but not really Note: Lockhart v. or failure to join a party under Rule 19. Patel: judges can twist arms to get parties to settle. but fine line between telling someone to be openminded and telling someone you have to compromise. Would have to have a complaint. Didn’t matter that he was going to lose anyway e.18 2. minors. Peralta v. Judgment void 5. Negotiation and Settlement: a. speedy. No new suit needed. Rule 41(b): If the P fails to prosecute or to comply with these rules or a court order. Enforce by usual contract grounds or summary judgment 1. Note: Most DJ’s are not challenged C. Consent Decree: Court embodies settlement in a court order i. can’t have DJ without due process i. or if all parties agree. D. Could negotiate what is in the complaint – could have something that doesn’t make the D look bad c. Any other reason that justifies relief d. which is relevant to the claim or defense of any party (“right to every man’s evidence”) 1. Purpose is to secure the just. Liberal Nature of Discovery: Rule 26(b)(1): parties may obtain discovery regarding any matter. released. Rule 41(a)(2): all other P requested dismissals must be by court order. There is concern regarding concealment of legitimate areas of public concern – this grows more pressing as additional individuals are harmed by identical or similar action iv. Go back to same judge that was involved (fed if fed. Newly discovered evidence 3. Heights Medical Center (1988): D guaranteed employee’s debt to Heights. and inexpensive determination of every action ii. at most – a judge can order you to listen d. Defendant: a. Enforce with contempt charge (for violating court order) ii. might decrease settlement opportunities for future litigants. sue D for original claim b. not privileged. Involuntary Dismissal: a. Note: Consent decree is not easy for D to live with (if they are interested in privacy) 1. a D may move to dismiss the action or any claim against it. Rule 41(a)(1): P can dismiss w/o court order if before the D answers or moves for SJ. Wong (1993): Some parts of settlements may not be held as confidential. discharged 6. Remedies are more draconian than for breach of K iv. serving society by providing a public forum for issues of general concern iii. Answer – plead affirmative defense of accord and satisfaction or waiver. usually breach of K is only state) iii. Also should move to dismiss her claim and to recover for damage to their reputation c. then d. usually involves agreement to drop suit for money i. Conflicting interests: favoring finality of litigation and secrecy of settlements v. Judgment satisfied. Plaintiff: a. Compare that to Fuentes – bigger policy issue of who loses. without prejudice (can be refiled) b. also without prejudice E. b. Usually do not need court approval to settle – exceptions: class actions. Fraud. Voluntary Dismissal: a. public 2. Mixed messages that TX sent him ii. File a summary judgment motion – under the settlement agreement 2. . Also means that P’s will have their painful pasts public for other Ps v. sexual harassment suit against Caesar’s. Unfairness stems from D’s reliance on TX law – TX violated D’s DP rights by leading D to believe that they take their rules seriously and then they didn’t. Sue for breach of contract b. D received notice but it was after statutory period – so under TX law it doesn’t count.
Beginning: skeptical. Reasons to Arbitrate: i. Epstein (1996): P’s sue M over M’s acquisition of MCA (P’s are shareholders of MCA). ii. “shall be valid. fed court must too iii.19 e. aids by previewing litigation g. Management a. P’s filed two separate lawsuits: Federal: (CA) Federal Securities laws (Exclusive Federal Jx for Federal Securities issues) + State: (DE) state law fiduciary breaches. Code requires all cases with less than $50G’s in controversy to go through mandatory mediation before any trial can be calendared ii. Whether a federal court may withhold full faith and credit from a state-court judgment approving a class-action settlement simply because the settlement releases claims within the exclusive Jx of the federal courts? No. Judicial Attitude about Arbitration has changed over time: i. Parties can ensure they have a decision maker who is experienced in the field. alternatives to litigation. Mediator only succeeds if parties agree i. Federal District Courts must authorize. Can control the applicable substantive law iii. One goal is “establishing early and continuing control so that the case will not be protracted because of lack of management” b. etc. devise. Industrial Co. Federal Arbitration Act: allows for enforcement of arbitration agreements in the federal courts i. 16(c) contains a shopping list of management techniques ranging from establishing time limits to encouraging settlement 2. Rule 16: Pretrial Conferences. limits to remedies b. Frequent in Family Law disputes iv. enforced terms. jury returns a non-binding verdict which serves as a basis for further negotiation towards settlement Arbitration: like litigation. Often courts/legislatures support it – Cal. such as mediation or non-binding arbitration a. Arbitrator may decide it more softly than a court (no winner takes all requirement) c. Judges as Mediators: 1. 50s – 90s: Embraced. Mashushita Elec. parties present abbreviated cases. Mediation: assisted negotiation – aids communication. courts wanting to be central. Now generally encouraged but with a note of wariness. §1738: Full Faith and Credit Act: Federal court must give judgment the same effect that it would have in the courts of the State in which it was rendered. Note: mediation discussions are usually privileged and not admissible vii. cheaper. Scheduling. irrevocable. DE would respect consent decree. FAA does not apply to all arbitration contracts – only contracts evidencing a transaction involving “commerce” F. Even when exclusively federal claims are at stake. Civ. and enforceable save for such grounds that exist at law or equity for the revocation for any contract” (under general contract law principles) a. Interest Mediation: asking parties their goals vi. Prevents a state from passing arbitration-specific contract law b. enforced them only reluctantly. and implement its own ADR program iii. v. Summary Jury Trial: small jury chosen. State court lawsuit settles: global settlement that encompassed the Federal claims i. Permits the parties to design their own procedure ii. unfairness. encouraged. no coercive interest. Positional Mediation: asking parties how much they would take to settle v. May be faster. . even after they have filed a suit. Neutral Evaluation: reality check to parties expectations of the case’s merits. Possibly based on bargaining power. Non-Binding Arbitration: parties required to present their cases to an arbitrator. Alternative Dispute Resolution Act of 1998: requires FDCs to offer the parties. there is no universal right to litigate a federal claim in a federal district court f. but in front of a non-judge a. §2: agreements to arbitrate are valid as a matter of federal law 1. who issues a decision (nonbinding unless parties accept it) i. and/or eliminate the vagaries in outcome that a jury may produce v. construed ambiguities in favor of arbitration iii. compelled arbitration. and more private iv. ii.
Falls under §2 of the FAA – unenforceable b/c all contracts require consideration. Federal substantive law regarding interstate commerce b. (2000): FAA does not apply where there is no contract under general K law – here there was no consideration a. 2) Has also reduced by a huge chunk the number of cases that are brought and appealed in the court system that can be used to fashion and revise the common law a. Ferguson v. Congress can pre-empt any state law that contradicts the FAA iii. Congress can choose to mandate a judicial forum for a statute. West (1991): Illustrates that courts are generally very reluctant to second guess the arbitrator’s procedures and substantive decision. but Court broadly endorses arbitration 1. grounds in law or equity for the revocation 2. either through text.Arbitration i. Principles and guidance going forward comes from case law b. 1) Concern is mostly over the little guy – unequal bargaining power. etc. Ryan’s Family Steak Houses.20 Congress needed some federal authority to step into the K area – using the Commerce Clause ii. e. Generally: i. d. Summary Judgment: a. L has failed to establish that undue harshness exists b. Doesn’t mention state courts – okay though: argue that this agreement is valid as a substantive matter – and thus state courts have to respect the agreement a. different arguments iii. doesn’t ensure that the public’s interests are being served. limitations on remedies iv. Inc. EDSI’s promise to provide an arbitral forum actually promised nothing at all – EDSI’s right to choose the nature of its performance renders its promise illusory b. §4 tells courts that they may issue orders to direct that arbitration proceed (upon the motion of a party) Limitations to Enforcement of Arbitration Clauses: i. different judges/courts. If these cases are arbitrated they do not enter the common law c. (2001): L argued that the agreement was an unconscionable adhesion contract – this fails: “a contract is substantively unconscionable if there is undue harshness in the terms of the K” – no man in his senses and not under delusion would make a. Lots of deference by the court 2. Unequal rights between parties 2. A method for disposal of groundless claims (or parts of claims) w/o incurring expense of a full-blown trial . Difference: diff state laws governed. Inhospitability – based on costs. Lyster v. Writers Guild of America. Many people lament the increased willingness to enforce arbitration provisions 1. Floss v. Procedures that are okay depends on the context Final Thought . Ryan’s Family Steak Houses. Ferguson structure is very specific to the entertainment industry 1. legislative history. §3 tells courts to stay a trial until such arbitration occurs 1. Inc. Nature of claims: “public disputes in private fora” (some statutory claims). G. Procedural Unfairness in the Arbitration Process 1. Courts usually enforce arbitration agreements – but recently they look harder at the fairness of the procedures and will refuse to enforce those that are unfair 1. 2. or by an “inherent conflict” between arbitration and the underlying purposes of the statute (Floss) ii.
D – much easier to obtain SJ. No genuine issue – SJ granted b. Rule 56(c): mandates the entry of SJ. v. Idea: can resolve dispositive facts underlying a dispute conclusively without need for a full-blown trial – efficiency would be served v. Judge decides whether there is evidence to be weighed. Bias’ Estate did not undermine the evidence of teammates witnessing drug use iii. Rule 56(e): nonmovant must come forward with specific facts showing that there is a genuine issue for trial (court must draw from the evidence all justifiable inferences in favor of the nonmovant) 1. the insurer wouldn’t have paid out (AI’s failure was harmless error) ii. Movant must make a showing supporting its claims insofar as those claims involve issues on which it will bear the burden at trial Rule 56(a) & (b) available for both person asserting a claim as well as for the person against which the claim is asserted i. and on which that party will bear the burden of proof at trial 2. Ks) & theories of the parties ii. but clearly against you) iv. just has to show the evidence doesn’t support only one element ii. Get their theory of evidentiary presentation Rule 56(c): SJ should be granted if (based on paper record) 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. Moving party must identify the info which demonstrate the absence of a genuine issue of material fact (absence of evidence to support the opponent’s claim).21 ii. but do not need to negate the opponent’s claim 4. Advantage International (1990): Issue is whether Bias (newly drafted NBA player and cocaine user) was insurable for $1M b/c of cocaine use? (Bias died of overdose) i.g. Rigorous SJ standard b/c we are so liberal with pleading and discovery iii. Partial SJ: e. Purpose: to secure the just. Judgment as a Matter of Law: Showing all of the evidence is in your favor (can show that the evidence is clear. All conceivable inferences should be drawn in support of the nonmoving party iii. Reasons to move for SJ 1. much harder to show you have overwhelming evidence of all elements than just one Rule 56(e): if moving party satisfies 56(c) burden. Genuine Issue: Is the evidence such that a reasonable person/jury could look at both sides and rule for only one side or could it go either way? 1. Sometimes bring them even if you think you probably won’t win them 2. Material Fact: Depends upon the substantive law (torts. Other side has to respond to SJ to show what their best evidence is 3. and inexpensive determination of every action v. Catrett (USSC 1986): widow suing asbestos company b/c of husband’s exposure to their product. after adequate time for discovery. . Form of final judgment – loser is a loser on the merits for preclusion purposes vi. e. speedy. AI moved for SJ – alleged B would not be insurable. Can move for SJ on liability and leave damages for trial vii. d. Standard for SJ mirrors the standard for Directed Verdict under 50(a) 3. responding party must set forth specific facts showing genuine issue for trial (beyond allegations or denials in its own pleadings) Bias v. i. Burden of Proof Matters: Party who has the burden at proof at trial has the same burden at SJ Celotex Corp. c. against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case. that we can examine the paper documents (through pleading or discovery) and know from those documents that a trial on those facts could come out only one way by a rational decision maker iv. not to weigh conflicting evidence 3. Must be more than a showing that there is “some metaphysical doubt as to the material facts” (Matsushita Elec. Facts concerning a claim or part of a claim are so one-sided as to evidentiary support.. and even if he was insured. P – has to prove elements of a cause of action (example: torts). company moved for SJ b/c she could not show that her husband was exposed to their product (element of her CoA) 1. Key why SJ is different than 12(b)(6) – under 12(b)(6) P’s facts are assumed as true 2.
writ of mandamus (court orders public official or court to perform an act). i. where the value in controversy shall exceed $20. legal relief: damages. not equity) ii. State: non-unanimous sometimes okay (2-3 out of 12) iv.” 1. Terry (USSC 1990): Ee who seeks relief in the form of back pay for a union’s alleged breach of its duty of fair representation has a right to a jury trial. restitution 2. but Both Unions and Trustees cannot be fired by beneficiaries and union members 3. Consider whether the main claim seeks legal relief (A has some) 1. Replaceability & Control: Client can fire an attorney. Like action by trust beneficiary against a trustee for breach of fiduciary duty (equity) 2. Ee seeks damages – a traditional “law” remedy. Reexamination Clause (7th A): no fact tried by a jury.22 Trial A. 6 jurors now constitutional ii. USSC restricted them to judges b/c of the functional considerations of ability to construe written documents and policy of uniformity Size. 7th A not incorporated – therefore no requirement that states provide juries for civil cases (but most state constitutions are analogous to 7th A. Rule: jury trial should precede any hearing on equitable claims and that the jury’s findings would control as to any common factual issues Amoco Oil Co. new approach to deciding whether combined E and L claims lead to a right to a jury trial: i. Right to a Jury Trial: a. Question of whether suit is at common law (law court. than according to the rules of the common law. dispute over alleged franchise agreement (T argued) or lack thereof. e. the right of trial by jury shall be preserved…” i. no mention of a right to jury from statute (vague – didn’t even mention the CoA). Incidental to or Intertwined with injunctive relief 2. replevin (court order requiring sheriff to return an item to its owner). shall be otherwise reexamined in any Court of the United States. problem was that this claim did not exist in 1791 i. g. No constitutional right to a bench trial Is there a statutory right to a jury? Is there a 7th A right to a jury? i. “Nature of the issue to be tried” Does P (or D) have a claim that can only be brought in equity? ii. Consider whether the counterclaim seeks legal relief (T has some) iii. None here – back pay was not held by Union. Local No. must demand a jury trial or waive the right Generally: most newly created claims that seek money damages include right to jury trial Patent Claims: traditionally heard by juries. Torcomian (1983): illustrates Beacon Rule. accounting. 391 v. v. h. a party could get a jury trial on any legal claims. Teamsters. Note: Remedies Test is more important to the 7th A determination Beacon Theatres: held that in a case with overlapping equitable and legal claims and counterclaims. Courts have substantial power to overturn jury verdicts that are w/o evidentiary support Historical Test: whether a given claim lay within the Jx of a C/L court in 1791 i. both sides plead legal and equitable remedies. f. habeas corpus Chauffeurs. Historical Test: compare this action to 18th C (1791) actions brought in courts of England – “Nature of the issue to be tried” 1. no ill-gotten gains iii. equitable damages include: Restitution. 1. Rule: Mix of equitable and legal claims doesn’t destroy right to jury for legal claims . Reexamination Clause i. Use federal law to decide what is legal – not state law ii. c. k. Even so. & Helpers. “Nature of the remedy” Does P (or D) want injunctive or other equitable relief? 1. j. However there is another issue: Er’s breach of the collective bargaining agreement – which is like a breach of K claim – (law in 1791) ii. quiet title. some go further) Seventh Amendment: “In suits at common law. ejectment (court order requiring sheriff to remove people from premises). K rescission/cancellation/reformation. Note – only applies to Federal cases – States are usually less fond of jury trials Rule 38(b): Right to a Jury Trial as under the 7th A. i. Remedies Test: “Nature of the remedy”. Rule 48: Federal: non-unanimous okay if parties agree to accept their verdict iii. Rules of Decision. b. equitable relief: injunction. Unlike an action for legal malpractice (law) b/c client controls the actions of the attorney a. d.
Altheimer & Gray (2003): TC judge refused to strike a juror for cause. Choosing Juries: a. Allowing jurors to take notes v. weird hunches were good enough justification in this case. served in governmental employment and stated an opinion. 455(e) Conflicts of interest within this subsection cannot be waived B. §1861: Litigants entitled to trial by jury shall have the right to juries selected at random from a fair cross section of the community – inclusive ideal b. and should have been struck for cause. §§ 144 & 455): i. equal protection clause. states vary): USSC has upheld state juries as small as 6 viii.S.).S. 28 U. financial interests. Jury size (federal only 12. appearance of bias 1. must state a reason involving the prospective juror’s bias c.S.S. 455 (e) Conflicts of interest within this subsection may be waived provided it is preceded by a full disclosure on the record ii. Rule: If a juror can be shown to be biased. 28 U. Edmonson extended to civil cases: extended to gender for government actors (J. 28 U. Abuse of Discretion review: Judge’s failure to elicit from juror a statement that she could be open-minded was reversible error iv. Purkett: impossible to make sure. striking black jurors) 1. Could then limit jury service (1 wk per 5 yrs) Judges: a.C. Reduce or eliminate peremptory challenges ii. right before deliberation) vii. Jury Unanimity: Constitution doesn’t require unanimity ix. served as a lawyer in the matter in controversy.C. §1863: Random jury selection from voter registration or other approved list c.C. §455(b): judge should disqualify himself for specific reasons like personal bias. 1. may have to justify your peremptory challenge w/ a nondiscriminatory justification ii. Rule: this would not apply if the P still had peremptory challenges f. no reason needed (28 U. Generally no peremptory challenges: some states permit peremptory challenges of judges through affidavit alleging that the judge is prejudiced b.S. Allow jurors to ask questions of the witnesses vi. Limit length of trial to respect jury time (OJ took over a year) x. Paying jurors a living wage while on juries iii. §455(a): judge shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. these allegations would constitute a substantial C. Inform the jury of the elements of the cause of action at the beginning of trial (instructions only occur at the end. familial relations.23 B. if true. failure to comply with the provisions of §1861. Reasonable: based on objective reasonableness 2. then the appellant is entitled to a new trial ii.B. §1867(d): Method for Challenging Jury Pool. Peremptory Challenges: limited. Lying Jurors: can challenge a verdict if: a juror failed to answer honestly a material question. Limit: can’t use them based on race alone (Batson: criminal case. Voir Dire – two purposes: lets lawyers begin presenting their cases.E. Devise system so that people know by the end of the morning whether they have to stick around for the rest of the week (that happens in CA) iv. prejudice. need a pattern of discrimination d. lets the parties develop a list of jurors they would like to peremptorily challenge h. after she had admitted a bias towards employers in a similar situation as Thompson’s i. etc. §1870) i.C. . Thompson v. Denial of the right to an unbiased tribunal is one of those trial errors that is not excused by being shown to have been harmless iii. a correct response would have provided a valid basis for a challenge for cause g.C. Principle of the Unbiased Trier b. For Cause Challenges: unlimited. Challenges for Cause: Federal (28 U. then movant may depose the jury commissioner and have access to documentary records Challenging Individual Jurors: a. Jury Reform Movement i.
and again within 10 days from entry of judgment (later is a jnov – see below) a. Disqualification Appropriate Only: when the charge is supported by facts. Two competing Policies: 1) courts must be. inference of crash was circumstantial – “no evidence to be weighed” b. P’s evidence is simply not enough to find that it is more likely than not that the decedent fell as a result of a collision d. In re Boston’s Children First (2001): Lawsuit brought by opponents of race-based pupil assignment. want class action certification. Cannot “comment on the merits of a pending motion”. and substance a. Cannot purport to be experts in the field of assessing evidence b. If “proven facts give equal support to two inconsistent inferences. or for legal education 5. Cooley: newsworthy + tension = particularly cautious about comments C. Rule 50(a): there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue a. Controlling Juries After the Verdict . D’s witnesses all were in a place to see. “Whether reasonable persons could differ”. P’s only witness possibly not credible (paying only slight attention). also requires judge to stop hearing proceedings (other than the recusal motion) iv. and when facts provide what an objective. Rule 50(a)(2) Can file motion at any time before the case is submitted to jury. also didn’t actually see whether there was a crash. Rule 50(c) losing party can make all its post-trial motions at once. all said no crash c. §144: permits a party to seek recusal by bringing specific issues to the court’s attention. also incorporates the details of §455. 2) fear that recusal on demand would provide litigants with a veto against unwanted judges 3. and seem to be. knowledgeable member of the public would/could find to be a reasonable basis for doubting the judge’s impartiality 4. during her ruling on the motion). Judges can also instruct and comment 1. Substantive law and sequence of decisions 2. Even if D didn’t put on any evidence at all. Note: “financial interest” bias may be limited if interest is small (de minimus) iii. “no legally sufficient evidentiary basis” b. Judge stated to reporter that present case was more complex than prior precedent. but can make public statements in the course of official duties (in court. Federal: Can carefully comment on the evidence – in a way that does not encroach on jury’s decision making. inference. Jury is the undoubted arbiter of credibility 5. Judicial Supervision of Juries a. Judges can also exclude improper influences (through law of evidence and voir dire) iii. Court should consider all evidence for the non-moving side in its most favorable light 2. killed. to the explanation of court procedures. Common Issues: credibility. Controlling Juries Before the Verdict i. Directed Verdict (Judgment as a Matter of Law): at close of either side of evidence 1.” judgment as a matter of law must go against the party with the burden of persuasion (Smith v. free from bias. § 455(a): shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned 2. Frames the question by instructing the jury on the law. b/c here there IS an issue as to whether the Ps were injured 1. Pennsylvania Railroad v. Should DV only if there is no rational basis for a jury to find in favor of the party against whom the verdict is directed 3. Rule 51: Instructions. evaluation. First National Bank) ii.24 2. that way if jnov is later vacated or reversed – automatic new trial from motion for new trial 4. Chamberlain (1933): brake man fell into tracks at a switch yard. issue is whether the DV was correct a. No issue of facts – they didn’t necessarily disagree e.
Can grant new trial when the verdict is against the great weight of the evidence. therefore she loses . Remittitur: judge orders a new trial unless the P agrees to accept reduced damages vi. Lind v. Judgment Notwithstanding the Verdict (Judgment as a Matter of Law): JNOV 1.25 i. judge misconduct (Peterson v. Special V: jury answers a series of questions instead of giving a general verdict ii. Wilson: judge granted new trial b/c of jury comments after the case) b. Judge is only supposed to decide if it is quite clear that the jury has reached a seriously erroneous result 6. Inviolability of jury deliberations 2. Impermissible for a court to reexamine the facts decided by jury b. Los Angeles & Salt Lake Railroad (1911): P could not prove whether her cow was on the RR tracks by an open gate (her fault) or a down fence (RR’s fault). Flawed Verdicts: when the verdict is “against the great weight of the evidence” (can’t base this solely b/c he would have decided differently) iii. for judgment as a matter of law. if the case involves simple issues within the ordinary knowledge of jurors (this case). Rule 50(b): if court does not grant DV under Rule 50(a). on its own motion (sua sponte). Even though AC only reviews for abuse of discretion – it is always an abuse of discretion to improperly apply a rule of law iv. special or unusual circumstances allow review 2. may violate the 7th Amendment (gives an award a jury never made) D. Only close cases go to juries. even though oral K would give him insane amounts of $. DC granted jnov or new trial 1. Allows parties time to correct alleged deficiencies in the facts ii. Schenley Industries (1960): employment case. Two bases for New Trial: flawed procedures and flawed verdicts a. Tanner – common law rule “prohibited the admission of juror testimony to impeach a jury verdict” iii. the jury’s verdict is given more weight 4. Additur: judge orders a new trial unless the D agrees to accept increased damages 1. Limits of Rational Inference a. erred in admitting a piece of evidence. Flawed Procedures: erroneous legal ruling. Judge here acted like a 13th juror and gave them no deference 5. juror misconduct. Rule 49: Special Verdict and General Verdict with Special Interrogatories i. Peterson v. New Trial (Rule 59): court may order a new trial on her own (59(d)) or on a party’s motion 1. jury found for Ee. then movant may file a renewed motion 2. San Pedro. Reid v. same idea as Directed Verdict. Conditional New Trial: can be limited to a trial on damages only. Policy: 1. Verdict flaw may involve a substitution of the judge’s judgment for the juries – must take close scrutiny. Problem filling jury boxes b. Limits of the Law’s Control – Jury as a Black Box a. Against the weight of the evidence standard is usually nonreviewable as within the discretion of the trial court. Ee alleged oral contract and breach of K by Er. but not when the court would have simply come to a different conclusion ii. 3. based on jury’s verdict and comments jurors made to the court post-verdict that they disregarded the Court’s instructions and considered improper factors in reaching verdict i. Judge is not supposed to substitute his own decision based on the facts – can’t act like the jury (polar opposite is jury’s verdict is “minimally rational”) a. just comes after jury has rendered a verdict If overturned on appeal. General V: general verdict and answers specific questions E. this would prevent a new trial – DV would not b/c jury never deliberated MUST make a DV motion in order to make a JNOV motion a. any verdict should be acceptable 3. Wilson (1998): Rule: DC cannot order a new trial. If it was a procedural flaw – wide discretion to trial judge 3. with liability off table v.
Federal courts have to respect the preclusive effect of an earlier state judgment to the same respect as that same state would (Semtek – Erie case with which CP as conflict) d.26 i. or motivation. DPC not violated b/c he had notice of the action and where to recover. plus the fee was only $10 (would violate DPC if this caused a financial hardship) 5. S Bros alleged they owned an undivided ½ interest in the property. “Full faith and credit shall be given to other states by all other states and the federal courts” 7. when F lost in state court. Searle Brothers v. Must provide evidence from which a rational trier of fact could conclude some proposition of material fact. Transactional idea arises in Supplemental Jx. among the facts uncovered by investigation and discovery. Based on a “common core of operative facts” (evidence necessary to prove claim) 2. 1) Is it the same claim being litigated in both cases? i. origin. finding of fact by a judge can be set aside on appeal if it is clearly erroneous F. Burden of Proof: i. P’s have burden of production for CoA. Have to apply the State preclusion law under Full Faith and Credit § 1738 6. Note: Tie case goes to the party who does not bear the burden of persuasion ii. beneficiary/trustee ii. Burden of production: must demonstrate. he sued in Federal court under DPC and a statute 1. space. Frier v. by a preponderance of the evidence 1. along with method by which proof is presented and argued (in turn) b. Privity: means one whose interest has been legally represented at the time 1. Searle (1978): Edlean S got piece of property through divorce. Procedural Control of Rational Proof a. successor in interest. Majority test: transactional approach 1. Exception: in a diversity action the scope of the judgment. finality. and whether amending a complaint relates back to the filing of a complaint under Rule 15 ii. sufficient evidence to allow a rational trier of fact to find in her favor 1. City of Vandalia (1985): F parked cars on narrow street. beyond a reasonable doubt. If not same parties. TC held their claim was barred by claim and issue preclusion . blocking traffic. Claim Preclusion. common examples: insured/insurance co. Goals: efficiency. whether rendered by a state or a federal court. Rule 52(a): requires that the court shall find the facts specially and state separately its conclusions of law thereon… (would have had to show judge’s inferences – unlike jury). F could have joined his constitutional claim to his replevin actions – therefore he had a full and fair opportunity to litigate 3. Burden of persuasion: defines the extent to which a trier of fact must be convinced of some proposition in order to render a verdict for the party who bears it. Failure means possible Summary Judgment (Celotex – asbestos. City towed 4 of his cars but did not cite him. Adversarial Responsibility of Proof: burdens of proof and argument. SJ) 2. One suit precludes another “where parties and CoA are identical”. whether they form a convenient trial unit. must have privity (Searle) 1. facts related in time. General Rule: The preclusion law of the court rendering the judgment applies i. by clear and convincing evidence. Preclusion still applies when P only litigated a subset of all claims (2 of 4 cars) 4. should be measured as if the state court had rendered it c. There simply was no evidence from which a rational trier of fact could have inferred railroad negligence caused the cow’s death b. D’s have burden of production for any AD’s Preclusion A. Designed to impel parties to “consolidate all closely related matters into one suit” b. and whether their treatment as a unit conforms to the parties’ expectations or business understanding the usage 2. 2) Are the same parties or their privies in both actions? i. Rule: A strong legal relationship is required to bind someone to a judgment in a case in which he was not a party iii. Minority test: sameness of the evidence (Frier) iii. F sued for replevin of the cars (legal) instead of paying the $10 each to retrieve them. Claim Preclusion (res judicata): forbids a party from re-litigating a claim that should have been raised in former litigation a. and the avoidance of inconsistency i.
Dismissal for failure to prosecute – YES a. Merrill Lynch. class actions c. But if we dismiss and allow refiling – this sanction has no teeth c. Directed Verdict. 3. reversed on appeal 1. Ohio court had no subject matter Jx over the claim (federal securities are exclusive to federal Jx) and therefore the OH decision has no weight (this is based on how Ohio would have treated the claim preclusive effect – Federal DC has to check that before applying CP principles) 3. Actions were definitely the same – same transaction – so would have been claim preclusion under Ohio law would apply – BUT 2. Substantive Legal Relationships: successive owners of property. . Final Judgment Requirement: some Jx apply claim preclusion when a case is up for appeal. ii. subject matter Jx (b)(1). fully. § 1738 again – Fed court has to apply Ohio Claim Preclusion effect 2. P’s legal theory flawed – Yes Precluded b. improper venue. Note: Courts regularly bind nonparties to judgments: 1. Rule 41(b) Involuntary Dismissal: If the P fails to prosecute or to comply with these rules or a court order. ex: beneficiary and trustee. What is “on the merits”? – at what stage does claim preclusion start? 1. DC dismissed for claim preclusion. iv.27 1. guardians appointed by the court to represent an incompetent or minor b. Rule 60(b)(5) states that the court may relieve a party from a final judgment when the judgment has been reversed or discharged iii. Was the issue decided in the prior adjudication identical with the one presented in the action in question? (no) b. Rule: if the substantive law of the relationship treats A as a substitute for B. heirs and executors of estates b. 4. Dismissal operates as an adjudication on the merits unless it is one for lack of Jx. some wait until the appeal is final. a D may move to dismiss the action or any claim against it. Pierce. Full jury trial. B will be bound by the results of a lawsuit in which A participated 2. Was the issue in the first case competently. virtual representation (when you can’t find everyone. co-ownership. vicarious liability a. Was the party against whom the plea is asserted a party or in privity with a party to the prior adjudication? (not a party. These dismissals have nothing to do with the merits of the case 4. but you have enough to represent those not found) 3) Was there a final judgment on the merits of the first suit? i. Gargallo v. service of process (b)(4)(5)) NO a. Can’t be on the merits – have to be free to sue in the right place in order to be free to have your day in court regarding the merits b. Have to make sure people take system seriously 5. e. and fairly litigated? No privity – they are asserting their own separate interest Woody was not acting as an agent of the partnership in his divorce suit Dissent: S bros were actively involved in the divorce suit (sons) – [but witnesses in a case are not ordinarily precluded from bringing claims similar to the claims on which the testified] iv. usually allow P to amend the complaint – Not Precluded until after amendment fails 3. Was there a final judgment on the merits? (yes) c. Dismissal under 12(b)(2) (personal Jx. Summary Judgment 2. Alternative Tests: a. If we dismiss it is not really on the merits b. Instances of “procedural representation”: a. P’s facts not enough. Fenner & Smith (1990): G brought same case in Ohio court (federal securities CoA)(dismissed for discovery order violations) and then Federal DC. joint obligation. Express Agreement to be Bound by a decision to which one is not a party 3. Dismissal under 12(b)(6) (failure to state a claim) – Depends a. or failure to join a party under Rule 19. not in privity) d.
J sued later for own injuries 1. Issue Preclusion would apply if the same issues raised in the pleadings. When: 1) An issue of fact or law is 2) Actually litigated and determined by 3) A valid and final judgment. Safeguards against the same thing being resolved in different ways by different finders of fact so that our confidence in the judicial system isn’t undermined c. this order does impose issue preclusion on the fraud (issue was deemed to have been “actually litigated” b/c Daily was an active . TC held J’s claim not claim precluded. Stipulations/Admissions/Conceded issues don’t count: Have to actually fight over the issue. J and B injured. issue not litigated ii. 2) Did the first lawsuit actually decide the issue in question? i. Gargallo – action dismissed for discovery violations. whether on the same or a different claim a. Judicial efficiency ii. RR failed – earlier verdict against J’s loss could have been based on either his contributory negligence OR a failure to prove damages – no Issue Preclusion iii. Issue Preclusion (collateral estoppel): bars from relitigation only those issues actually litigated and determined. Preserves victory so that winner can count on it iii. and the same facts or questions determined and adjudicated in the prior case would again be put in issue 3. Operates to simplify dispute resolution by streamlining cases iv. and 4) The determination is essential to the judgment.28 B. answer. Note: no preclusion btwn civil & criminal cases (unless crim first). sued RR for B’s injuries and J’s loss of consortium. Purpose of IP: Represents a decision that the needs of judicial finality and efficiency outweigh the possible gains of fairness or accuracy from continued litigation of an issue that previously has been considered by a competent tribunal b. 1) Is it the same issue being litigated in both cases? i. diff burdens of proof ii. In re Sammy Daily: court ordered all allegations of fraud to be true as a sanction. The determination is conclusive in a subsequent action between the parties. RR must prove that the “judgment could not have been rendered without deciding the particular matter brought in question” 4. Parks (1979): car crashed into train. Goals: i. affirmed 2. Illinois Central Gulf RR v. Don’t want to discourage people from making concessions in a lawsuit for fear that the concession will come to bite them later d.
Offensive use of IP: As long as you have had your day in court – should be okay – UNLESS: (Fairness Factors) i. not a sword iii. Rule 52(a): requires the judge to set forth findings of fact and conclusions of law 1. D1(P) v. Offensive: Parklane Hosiery Co. D1 (P2 wants to invoke IP) OK this time i. Offensive iii. Restatement 1: when alternative grounds for decision existed. D2 (D2 wants to invoke IP) OK i. he initiated the first action 2. unusual – usually this would not be an IP case 3) Was the issue resolved in the first suit absolutely necessary to the outcome of that suit? i. Defensive b. but will grant the trial court broad discretion e. Would permit P2 to take advantage of an issue fully litigated and determined in P1’s suit 2. Action 2: Stockholder sued Parklane under securities laws for fraudulent proxy statement. D1 (P1 wins). Preclusion applies when the “victim” of issue preclusion had a full and fair opportunity to litigate the matter in the first suit 4. Strategic sidelining problem – don’t want to create incentive for someone not to join an action (don’t want to discourage joinder) ii. v. P1 can’t argue adequate incentives to fight. Different individuals (even married) are not precluded from filing separate suits ii. P1 has nothing to gain from splitting them up iv. Promotes judicial economy and protects litigants from the burden of relitigating issues resolved previously (Blonder-Tongue) a. If the first action’s procedures were not as meaningful as in the second action (small claims court v. damages)) c. Offensive c. IP being invoked as a shield. f. P1 had already lost on an issue and P2 wants to use it ii. Multiple reasons mean less scrutiny c. any of which would have been dependent. encourages joinder – have P1 sue D1 and D2 together. Non-Mutual: 1. or where it would be unfair to D. Defensive: okay b/c it doesn’t encourage strategic sidelining. Ex 3: P1 v. has already been determined that you don’t have a patent ii. we don’t attach IP to any of them a. Why dicta isn’t given as much weight – nothing turns on them d. P1(as a D) (P2 wants to invoke IP) i. Restatement 2: when a finder of fact resolves the first lawsuit on multiple grounds. Some Jx follow Restatement 4) Are the same parties involved in both actions? (Mutuality Requirement) i. D1 (P1 wins). NOT same parties b. Actually determined. P2 v. Mutuality: neither party can use a prior judgment as an estoppel against the other parties unless both parties were bound by the judgment 1. D2 (D2 invokes IP) . full regular trial) d. Jury might not have looked at both issues carefully – b/c nothing turned on it b. Ex 2: Parklane: P1 v.29 e. Shore wants to avoid having to prove fraud (may have to prove other things (reliance. Ex 1: Blonder-Tongue: P1 v. D1 (D1 wins). If the first action didn’t create adequate incentives to fight over the issue iii. Elements: Same issue. None of that applies here – offensive IP okay 2. D1 (D1 wins). BOTH should be precluded 2. Rule: in cases where a P could easily have joined in the earlier action. Shore (1979): Action 1: SEC sued Parklane for fraudulent proxy statement (SEC won). If you have never had opportunity to litigate an issue then it can’t be precluded iii. Ex 4: P1 v. P1 v. the TC judge should not allow it f. a. participant in the litigation and chose not to defend himself on the merits. Joinder issues? d. If both parties – IP applies – this requirement has been relaxed somewhat: Blonder-Tongue – Defensive Non-Mutual IP 3. P2 v. Federal courts will not preclude the use of offensive IP. Fairness factor: 1. Necessary to the outcome.
Liberty Mutual Insurance Co. S has plants all over country – so when a different district raises a problem – IP 3. integrity. .C. Here the three cases are not distinct enough in argument/evidence to allow a determination that decision 1 doesn’t effect this case – NO IP Applying IP to federal government is problematic: i. Still had to resolve the damages or other relief sought 2. S won – EPA can’t regulate 2. “if there are circumstances such that our confidence in the integrity of the determination is severely undermined. manifestly erroneous judgment. sexual discrimination case. Losing Party may appeal if: a.S. depart from IP when “there is an inconsistency that is staring us in the face” c. Plain Error Rule: litigant surely has the right to assume that a federal trial judge knows the elementary substantive legal rules. Say USSC held that for Congress to exercise its CC powers – activity in question has to cross a state boundary 2. Exception: granting or denial of injunctive relief is final judgment (it wasn’t ruled on here) 3. Stouffers – claimed EPA didn’t have power to regulate their manufacturing facility under the clean air act. What if S’s competitor challenges the EPA’s power in the same way – 9th C might rule for EPA 4. Don’t apply Non-Mutual IP against the Gov – b/c to do so would lock into place legal results that could never be revisited b/c the Gov would be the only party to litigate that issue 1. it would work an injustice to deny the litigant another chance” b. Even Mutual IP creates a problem with the FED: 1. should allow D to relitigate b/c of fairness a.30 i. Now EPA can enforce the law against S’s competitor but not S… creates horizontal inequality g. and will act accordingly – imposed where the error has seriously affected the fairness. 2 & 3 held for P. If USSC thought that was wrong and non-mutual IP was allowed. Multiple Claimant Anomaly: State Farm v. Wetzel (USSC 1976): pregnancy. Really affects repeat litigators ii. D1 has already lost on this issue ii. Rule 54(b): Judgment on multiple claims – court may direct the express determination that there is no just reason for delay and upon an express direction for the entry of judgment. 1 held for D. Two functions: defines the moment at which an appeal is proper. without that – the action is not terminated c. and it grants Jx for the appellate courts to hear that appeal ii. Defensive iv. Final Judgment Rule (28 U. D argued that 1 should matter and no IP 1. There was an adverse judgment: a judgment granting relief different from what one requested b. or public reputation of judicial proceedings 2. Party raised the issue at court below (if not – waiver) i. current case P sought to preclude relitigation based on 2 and 3. Exceptions: 1. favorable change in law during pendency of appeal 3. Century Home Components (1976): fire in a warehouse – 48 suits filed. Appeal A. What fairness factors does that raise? (didn’t initiate first suit) iii. Ex: jury compromise. Single claim with multiple reliefs sought – therefore the DC’s “final judgment” was not final (didn’t actually rule)(and thus interlocutory / not appealable) 1. new legal arguments to defend lower court’s judgment There is a final judgment i. Problem to afford preclusive effect when there are many claimants from one event. §1291): appeals lie only from final decisions of the district courts (with some significant exceptions) – most states follow a similar pattern 1. new evidence that would have a significant effect on the outcome 2. USSC couldn’t revisit: preclusion is ironclad 3. v.
D. Joinder Rule: Rule 18: allows a claimant to assert every claim she has against an opposing party. 1) Is there a joinder rule that allows combining of claims or parties? b. Joinder of Claims: a. look to §1367 for supplemental Jx. depends on three variables: 1. Caterpillar – interests of efficiency and finality? 4. the Rule authorizing the joinder 4. Exception: if the claim is likely to reoccur 1. Compulsory Counterclaims: . it will look at the DC findings with a deferential standard (Anderson). is there subject matter jurisdiction for these claims or parties? i. But Congress gave statutory rights to one civil appeal in federal and state systems When you do get an appellate court to look at your case. Two Basic Questions: a. Obstacles from Personal and SM Jx too c. Liberty Mutual looks bad: Wasted all of the AC’s work Won’t the issue come back up??? 3. Supposed to ask whether the DC was purely erroneous. 2) If so. If no independent basis. C. We create rules b/c we don’t want the discretion that is embodied in exceptions to the rule In civil cases. the identity of the party seeking to invoke (P or D?) 3. 2. Maybe sending the message is more important (Mottley – WPC) 5. even if b. no constitutional right to appeal in federal or state courts a.31 iii. Note: No compulsory joinder of claims. Rule 42(b): permits the judge to sever claims for trial convenience By Defendants i. By Plaintiffs: i. not transactionally related 1. although CP may compel joinder of claims arising out of same transaction (or evidence – if narrower Jx) B. lot of weight attached to trial court Note: Mootness: one may not appeal from a judgment when circumstances have changed in such a way that relief is no longer possible. Joinder A. the basis of the original Jx (Fed Q or Diver?) 2. B.
P argues that B’s CC was permissive. Purpose of 20 is to promote trial convenience. Is there any logical relation between the claim and the CC? (Plant) i. “broad realistic interpretation in the interest of avoiding a multiplicity of suits” ii. General Motors (1974): multiple P’s joined to sue GM for series of discriminations on race and gender. P owes B. Are issues of fact and law raised by claim and CC largely the same? b. enforcement) d. 2) in civil rights context just have to have some law/facts in common. Same transaction determined by “logical relation” a. B counterclaims for payment of debt. Compulsory could: i. Rule 20(b): DC has discretion to order separate trials (prevent delay/prejudice). Blazer Financial Services (1979): Debt arrangement. and therefore lacked jurisdictional basis to be heard (thus DC’s ruling on it should be vacated. Different Tests of whether the CC arises out of the same transaction: a. Permissive Counterclaims 1. expedite the final determination of disputes. a. Plant v. P sues B under Truth in Lending act for failure to disclose. 42(b): same ii. also suing Union 1. Stop debtors from suing (if potential recovery less than debt) ii. & B would have to litigate issue in state court) b. Would res judicata bar a subsequent suit on D’s claim absent the compulsory CC rule? c. Likes the Logical Relation Test c. thereby preventing multiple lawsuits (joinder strongly encouraged) 3. Appears to be Compulsory (same transaction) – but balancing of policies must occur (objectives of Rule 13 v. Must have an independent jurisdictional basis Joinder of Parties: a. Mosley v. 1) Each P injury arose out of same general policy of discrimination = same transaction b. Falls within supplemental Jx of federal courts 2. But: Purpose of CC rule is to provide complete relief to D who has been involuntarily brought into fed court – would be unfair to D f. not all C. Goals of Truth in Lending Act: to allow consumers to compare lenders. Joinder Rule: Rule 13(a): compels a counterclaim if it arises out of the same transaction or occurrence that is the subject matter of the opposing party’s claim (and doesn’t require the presence of third parties over whom the court lacks Jx)(liberal rule) a. Will substantially the same evidence support or refute P’s claim as well as D’s counter? d. . Joinder Rule: Rule 20: permits joinder of plaintiffs and defendants if any common question of law or fact will arise in the action (one common fact req easy to satisfy) 1.32 1. Reverse only if abuse of discretion 2. Legislative intent – Truth in Lending claims can be brought in either federal or state court – thus they meant to keep the C and CC together ii. Increase federal court workload (by making them adjudicate state debt claims) iii. Joinder Rule: Rule 13(b): permits joinder of any claim by opposing party not arising out of the same transaction or occurrence. By Plaintiffs: i. Infringe on state’s power to adjudicate disputes grounded in state law e. Flexible! logical relation exists when the CC arises from same operative facts 3.