CIV PRO II OUTLINE

Modern Plead. under Fed. Rules

 
Rules Enabling Act:
(a) SCOTUS can write rules of practice & procedure for Fed. CTs
(b) Rules will not abridge substantive rights

Why Plead.s?
1. Notice to D
2. No frivolous cases
3. Narrow dispute
4. Narrow issues
5. Encourage settlement
6. Guide discovery & SJ

Two Part Test to Sufficient Plead.

1. Factual vs. Conclusory - Cull mere legal conclusions –CT need not accept those as true, “ elements of a c/a, supported
by conclusory statements, not enough”
2. Conceivable vs. Plausible ->Examine non-conclusory allegations to determine if state a plausible claim for relief

Plausibility:
“A claim has facial plausibility when P pleads factual content that allows CT to draw RSNBL inference that D is liable”

Conley
Notice Plead. -> complaint is sufficient “unless it appears beyond doubt that P can prove no set of facts in support of his
claim”

Swiekiewicz
“May appear that a recovery is very remote, still sufficient.”

Twombly: Sues Telephone Co’s - Sufficient Factual Matter Plausible on Face -> Enough
P must plead “enough facts to state a claim to relief that is plausible on its face.” “Conceivable “is not enough.) “Not just
parallel conduct.” No facts, but more than blanket assertion.

Dissent –Justice Stevens:

a) Efficiency is not Plead. stage
b) Cost concerns can be fixed in different ways
c) don’t need to protect the rich

IQBAL: Imprisoned by Feds -> Fails Plausibility Test - Not going back to heightened factual Plead. Under code
Plead. test isn’t factual detail, but rather factual convincingness

Burdens
Non-Existence of Defenses:
 Δ has b/o/p on its defenses -> More manageable & Potentially unfair to P
 Some JXs require P to allege nonexistence of certain defenses if goes to “very heart of action”

Why 9B Particularity?
 Protect reputation
 Deter frivolous settlements

Denny: Heightened pleading in Class Actions Unfair -> Info in D’s H&s
“A strict application of Rule 9(b) in class action cases unfair to victims since matters are within knowledge of Ds.”

General Foods
D argues “Plead. fraud with specificity” should require Ps to: State specific language, ID persons, Indicate date, time, &
place. Cal. Supreme Exception: “It appears from allegations that D must necessarily possess full information
concerning facts of controversy.” Impracticality: 1000s pages of specifics within Ds’ knowledge, cost, difficulty, less
effective notice.”

PSLRA & Tellabs - “strong inference of scienter”

‘strong’
More than merely plausible, it must be >= opposing inference”

PSLRA & Dura – “Loss Causation”

“must allege that you lost money b/c of fraud not other reasons”

American Nurses
“CT is not to pounce on P & by a crabbed & literal reading of complaint strain to find that he has pleaded facts which
show that his complaint is not actionable.”

Ingraham
No “unfair surprise”, “technical failure to comply with Rule 8(c) is not fatal.” “logical relationship between defense & c/a
asserted by P.”
o (1) matter at issue constitutes a necessary or extrinsic element in P’s c/a;
o (2) better access to relevant evidence;
o (3) policy considerations: should matter be indulged or disfavored?”

AMENDMENTS
Forman v. Davis -- 5 factors:
 Undue delay
 BF or dilatory motive
 Repeated failure to cure deficiencies by amend.s previously allowed
 Undue prejudice to opposing party
 Futility

Worthington v. Wilson
Relation Back if “mistake” is “misnomer” -> D is proper, name incorrect, thus amend identity of proper party & where
that party is chargeable with knowledge of mistake.
No Relation back if lack of knowledge of proper party.”

History of Rule 11
 1938 version—atty.’s signature on a Plead. certifies that:
 Atty. has read Plead.
 To best of atty.’s knowledge, re is good ground to support Plead.
 Plead. was not filed for purpose of delaying proceedings
 1983 version:
 Additional requirement that atty. “stop & think” before filing papers, i.e. by conducting a RSNBL pre-
filing factual & legal inquiry, & certifying that papers are factually well-grounded & legally warranted
 M&ates judges to levy sanctions for violation of rules
Hadges
“Atty. req’s an inquiry RSNBL under circumstances’ into ‘factual contentions have evidentiary support.’”

Joinder of Claims & Parties

 
U.S. v. Heyward-Robinson
“only a logical relationship needed”, ”avoid fragmentation of litigation & multiplicity of suits.”

Provident Tradesmens Factors

Proceed or dismissed?
 Π’s interest in having a forum
 Δ’s interest in avoiding multiple lit/inconsistent relief
 Outsider’s interest in participating
 CT/Public interest in complete, consistent & efficient dispute resolution

LASA
 Construed liberally to avoid circle of action & to dispose matter arising from one set of facts in one action
 Tr.Oc. are broad

Smuck
Petitioner should be allowed to intervene under Rule 24 are not necessarily limited to those situations when trial CT
should compel him to become a party under Rule 19.”
 CLASS ACTIONS
 
Policy/Ethical Issues
 Socially useful remedy that promotes “real” judicial access?
 Or “legalized blackmail”?
 Fear of “sweet heart” settlements

Hansberry
“where litigant whose rights have thus been adjudicated has been afforded such notice & opportunity to be heard as are
requisite to due process which Constitution prescribes.”
“Failure of DP where procedure adopted, does not fairly insures protection of interests of absent parties who are to be
bound by it”

Castano v. American Tobacco Co.

Variations in state law -> how would a trial on merits be conducted – difficulty in proving individual reliance en masse.
“Our specific concern is that a mass tort cannot be properly certified without a prior track record of trials from which
district CT can draw information necessary to make predominance & superiority analysis req’d by rule 23.”

Amchem Products, Inc. v. Windsor -> Asbestos exposure all over the US.
Settlement class must still satisfy all criteria for certification under 23(a) & 23(b)
Fact that case will settle is relevant to assessing manageability of class action under predominance/superiority analysis

Ortiz v. Fibreboard
Concerns with “limited fund” settlement classes:
 parties must demonstrate insufficiency of available funds (to be tested by an evidentiary hearing)
 b/c class members have no right to opt out, distribution must be equitable
 CT was troubled by fact that Δ spearheading settlement would retain virtually its entire net worth

DISCOVERY

Why discovery?
 “ discovery rules were intended to make a trial less of a game of blind man’s bluff & more a fair contest with basic
issues & facts disclosed to fullest practicable extent.” (U.S. v. Procter & Gamble Co., 356 U.S. 677, 683 (1958)).

Discovery serves three basic purposes:

 permits parties to acquire greater information about ir own & or side’s case
 preservation of evidence that might orwise be lost before trial
 provides mechanism for narrowing issues in dispute between parties

Purpose #1: Acquiring Greater Information

 seek helpful admissions consistent with your client's story
 learn opponent’s version
 uncover & undermine harmful

What can you learn through discovery?

 P's version of events
 D's version of events
 wher eir side has any witnesses to support ir version or rebut or side's version
 documents to support/rebut any of those versions

THREE MAIN DEPOSITION GOALS

 seek helpful admissions
 learn deponent's version
 uncover & undermine harmful

Hickman v. Taylor
“Here attempt, without purported necessity or justification, to secure written statements etc. prepared adverse party’s
counsel falls outside arena of discovery & contravenes public policy underlying orderly prosecution & defense of legal
claims.”
“Where relevant & non-privileged facts remain hidden in an atty.’s file & where production of those facts is essential to
preparation of one’s case, discovery may be properly had…. & production might be justified where witnesses are no longer
available or can be reached only with difficulty.”

“Forcing atty. To write out all that witnesses have told him & to deliver account to his adversary gives rise to grave
dangers of inaccuracy & untrustworthiness.”

“Mutual knowledge of all relevant facts gared by both parties is essential to proper litigation.”

Upjohn v. U.S.
“[T]he privilege exists to protect not only giving of professional advice to those who can act on it but also giving of
information to lawyer to enable him to give sound & informed advice.”

So in corporate context, “Middle-level—& indeed lower-level—employees can, by actions within scope of ir employment,
embroil corporation in serious legal difficulties, & it is only natural that se employees would have relevant information
needed by corporate counsel if he is adequately to advise client with respect to actual or potential difficulties.”

suggests that corporate privilege applies only where:

o communication concerned matters within scope of employee’s corporate duties
o communication was needed to supply a basis for legal advice
o & it was treated as confidential within corporation

Cine 42nd St. atre Corp. v. Allied Artists Picture Corp.

 FRCP 37(b) sanctions have three-fold purpose:
 so that pty won’t profit from failure to comply
 to get pty to actually comply w/ specific order in Q
 as general deterrence to those who bear some fault
 “gross negligence” = “fault” – so “where counsel clearly should have understood his duty to CT— full range of
sanctions may be marshaled.”

ADJUDICATION BY SPECIAL PROCEEDINGS

What facts are “material”?
 “Simply stated, a material fact is one which will affect outcome of case, & a material fact raises a genuine issue if a
RSNBL jury could reach different conclusions regarding that fact.”

Seventh Amend.
 “In Suits at common law, where value in controversy shall exceed twenty dollars, right of trial by jury shall be
preserved, & no fact tried by a jury, shall be orwise re-examined in any CT of United States, than according to
rules of common law.”

Two basic situations in which SJ might be appropriate:

 Parties actually agree on all facts & dispute is entirely about law
 Parties disagree about facts, but re is no “genuine” dispute – i.e., one side has so little evidence that no RSNBL
jury could find for that side

Scott v. Harris (SCOTUS 2007)

“At summary judgment stage, facts must be viewed in light most favorable to nonmoving party only if re is a ‘genuine’
dispute as to those facts. As we have emphasized, ‘when moving party has carried its burden under Rule 56(c) its
opponent must do more than show that re is some metaphysical doubt as to material facts… Where record taken as a
whole could not lead a rational trier of fact to find for nonmoving party, re is no genuine issue for trial.’ … When opposing
parties tell two different stories, one of which is blatantly contradicted by record, so that no RSNBL jury could believe it, a
CT should not adopt that version of facts for purposes of ruling on a mtn. for summary judgment.”

Review - In deciding MSJ, CT must:

 facts asserted by non-moving party, if properly supported by admissible evidence, are assumed to be true
 draw all inferences in light most favorable to non-moving party (unless blatantly contradicted by record)
 credibility determinations are for jury

Adickes v. S.H. Kress (SCOTUS 1970)

 “Kress did not carry its burden b/c of its failure to foreclose possibility that re was a policeman in Kress store
while petitioner was awaiting service…”
  So Rule 56 only obliges π to respond if Δ has come forward with evidence disputing π’s allegation. Since Δ didn’t
dispute that allegation, no obligation to respond.
Adickes / Celotex: moving party can obtain SJ in eir one of two ways :
1. By affirmatively producing evidence to disprove a material fact, to negate an essential element of nonmovant’s
claim
2. OR simply by showing that nonmoving party does not have enough evidence of an essential element of its claim

JMOL

So far, we’ve seen that CT can decide a case w/o sending it to a jury if:
 Rule 12 dismissal – where π has failed to PLEAD sufficient facts needed to prevail on an element of her claim
 Rule 56 Summary Judgment – where π has failed to PRODUCE sufficient EVIDENCE sufficient to prevail on her
claim
What constitutes a “Legally Sufficient Evidentiary Basis” under Rule 50(a) for case to go to jury?
Galloway v. U.S. (SCOTUS 1943):
“[T]he essential requirement is that mere speculation be not allowed to do duty for probative facts, after making due
allowance for all reasonably possible inferences favoring party whose case is attacked.”

“[In Schuylkill] CT declared that ‘some’ evidence was not enough—re must be evidence sufficiently persuasive to judge so
that he thinks ‘a jury can properly proceed.’”

“Today CT comes dangerously close to weighing credibility of a witness & rejecting his testimony b/c majority do not
believe it.”

Denman v. Spain (Miss. 1961)

“ burden was on P to prove by a preponderance of evidence, not only that operator of Plymouth was guilty of negligence
but also that such negligence proximately caused or contributed to collision.”

Kircher v. Atchinson (Cal. 1948)

CT characterizes P’s version as “most extraordinary,” but holds that P’s version didn’t “contravene laws of nature,” so jury
reasonably could believe it.

Justice Traynor’s dissent: “It is my opinion that although accident as described by P is not outside realm of possibility, his
version, which is that of an interested & impeached witness, involves so extraordinary & improbable a sequence of events
that without corroboration it does not warrant belief by a RSNBL jury.”

Rogers v. Missouri Pacific R.R.

“test of a jury case is simply do proofs justify with reason conclusion that employer negligence played any part, even
slightest, in producing injury or death for which damages are sought. It does not matter that, from evidence, jury may
also with reason, on grounds of probability, attribute result to or causes, including employee’s contributory negligence.
Judicial appraisal of proofs to determine wher a jury question is presented is narrowly limited to single inquiry wher,
with reason, conclusion may be drawn that negligence of employer played any part at all in injury or death.”

Reeves
“It is permissible for trier of fact to infer ultimate fact of discrimination from falsity of employer’s explanation… Proof
that D’s explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional
discrimination, & it may be quite persuasive.”

“This is not to say that such a showing by P will always be adequate to sustain a jury’s finding of liability. Certainly will be
instances where, although P has established a prima facie case & set forth sufficient evidence to reject D’s explanation, no
rational factfinder could conclude that action was discriminatory. For instance, an employer would be entitled to
judgment as a matter of law if record conclusively revealed some or, nondiscriminatory reason for employer’s decision or
if P created only a weak issue of fact as to whether employer’s reason was untrue & re was abundant & uncontroverted
independent evidence that no discrimination had occurred.”

Mtn.s for a New Trial

Two categories of cases where CTs traditionally could grant new trials:
 Cases where re were errors in trial process
 Party convinces CT that it improperly admitted or excluded evidence
 Improper instructions to jury
 Jury misconduct (e.g. juror contact with witnesses)
 Cases where trial process was fair, but result is clearly wrong
  Newly discovered material evidence which would change outcome
 Jury’s verdict is not supported by clear weight of evidence
 Jury’s verdict on liability is supported by evidence, but its award of damages is clearly excessive or
insufficient

Aetna Casualty v. Yeatts

“ testimony below from which jury would have been amply justified in finding in favor of P insurance company on issue
submitted; but D himself was examined as a witness &, if his testimony is believed, he was guilty of no criminal act.”

“Where re is substantial evidence in support of [a party’s] case, judge may not direct a verdict against him, even though he
may not believe his evidence or may think that weight of evidence is on or side; for, under constitutional guaranty of
trial by jury, it is for jury to weigh evidence or pass upon its credibility. He may, however, set aside a verdict supported by
substantial evidence where in his opinion it is contrary to clear weight of evidence, or is based upon evidence which is
false; for, even though evidence be sufficient to preclude direction of a verdict, it is still his duty to exercise his power over
proceedings before him to prevent a miscarriage of justice.”

“It is equally well settled, however, that granting or refusing of a new trial is a matter resting in sound discretion of trial
judge.”

APPELLATE REVIEW
Multiple Claims
Mackey:
can appeal unless “so inherently inseparable from, or closely related to, those stated.”

Cold Metal Process v. United Engineering:

CT holds that appeal is appropriate under 54(b) even though a C-claim arising from same transaction had not yet been
decided

Curtiss-Wright:
For 54(b) purposes, significance of ongoing C-claims “turns on ir interrelationship with claims on which certification is
sought. Here, District Judge determined that General Electric’s C-claims were severable from claims which had been
determined in terms of both factual & legal issues involved.”
Collateral Order Doctrine
 Cohen: “This decision appears to fall in that small class which finally determine claims of right separable from, &
collateral to, rights asserted in action, too important to be denied review & too independent of cause itself to
require that appellate consideration be deferred until whole case is adjudicated.”
 Will v. Hallock: Collateral order doctrine applies if:
 Order must conclusively determine disputed Q
 Important Q separate from merits
 Effectively unreviewable on appeal from final judgment in underlying action

ResJud & Collateral Estoppel

Cromwell – ACTUALLY LITIGATED
“actually litigated, not what might have been litigated & determined.”

Parklane factors:
 Was A harmed by virtue of fact that Issue X was previously litigated in a forum not of A’s choosing?
 Does permitting CE here encourage later πs to “wait & see” rar than joining in 1st suit?
 Are re prior inconsistent judgments on issue, which may suggest that it would be unfair to give conclusive effect
to any one of m?