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Rule Description Case / Notes

(a) Pleadings – only these are allowed Burden of Pleadings dictates who’s obligated
1. a complaint to allege an element of a claim. (COMPLAINT)
2. an answer to a complaint 1) If P fails its burden, complaint vulnerable
3. an answer to a counterclaim designated as a counterclaim to a motion to dismiss for failure to state a claim
4. an answer to a crossclaim Ex. Must prove all elements of cause of
5. a third-party complaint action
6. an answer to a third-party complaint 2) If D fails its burden, cannot raise that
7. If the court orders one, a reply to an answer defense at trial
Rule 7 Ex. Raise an affirmative defense
*Sets boundaries of trial, precludes unfair
Pleadings Allowed; surprise through new motions

Form of Motions and other Burden of Proof allocates the duty of proving
Papers contested facts.
2 elements: 1) Producing evidence
(“burden of production”)
2) Persuading the trier of fact
(“burden of persuasion”)
In the event that there is no proof of a contested
allegation, the party with the burden of
producing evidence loses. If the proof is in
equal balance, the party with the burden of
persuading the court loses.
(a) Notice Pleading – Complaint minimally requires CROSS REFERENCE Rule 9(b) – heightened
1. short and plain statement re jurisdiction pleading standards
2. short and plain statement of the claim entitling relief
[allegations going to elements of the claim(s)]
3. demand for judgment for the relief

(b) Defenses; Admissions; Denials


1) Can:
Rule 8 1) Admit
a. P is relieved of burden of proving
General Rules of Pleading 2) Deny
a. Party with burden of proof must establish evidentiary
support
3) Claim insufficient information to form a belief as to the truth of the
allegation
a. Same effect as a denial
b. D must make a reasonable investigation into allegations
c. The response is appropriate when there are time constraints
Partial Denials vs. Ineffective Denials
A denial that fails to distinguish between the true and false components of
a given allegation will be deemed an “ineffective denial” and will be treated
as an admission under Rule 8(d).
WANT Ex. It is specifically admitted…
It is specifically admitted…
Rule 8 It is specifically denied…
(continued)
(d) Pleading to be Concise and Direct; Alternative Statements;
General Rules of Pleading Inconsistency
(1) Each allegation must be simple, concise, and direct. No technical form
is required.
(2) A party may set out 2 or more statements of a claim or defense
alternatively or hypothetically, either in a single count or defense or in
separate ones. If a party makes alternative statements, the pleading is
sufficient if any one of them is sufficient.
(3) A party may state as many separate claims or defenses as it has,
regardless of consistency.
(b) Fraud or Mistake; Condition of Mind. CROSS REFERENCE Rule 8(a)(2) – short
In alleging fraud or mistake, a party must state with particularity the plain statement
circumstances constituting fraud or mistake. Malice, intent, knowledge, and
other conditions of a person's mind may be alleged generally.

(c) Conditions Precedent.


In pleading conditions precedent, it suffices to allege generally that all
conditions precedent have occurred or been performed. But when denying
that a condition precedent has occurred or been performed, a party must do
Rule 9 so with particularity.
*May be heightened pleading requirements through statutory law (i.e.
Pleading Special Matters securities
(a) Signature WARNING: Beware of 11(c) in signing, suit
-Every pleading, written motion, and other paper must be signed by at least warranted by law & by fact
one attorney of record— or by a party personally if the party is
unrepresented
-Unless a rule or statute specifically states otherwise, a pleading need not
be verified or accompanied by an affidavit

(b) Representations to Court


by presenting to the court a pleading, an attorney or unrepresented party is
certifying to the best of that person’s knowledge, information, and belief,
formed after an inquiry reasonable under the circumstances
1. it is not being presented for any improper purpose (e.g. to harass,
cause unnecessary delay or needless increase in the cost of
litigation)
2. the claims, defenses and other legal contentions are warranted by
existing law
3. allegations have evidentiary support or will likely have after a
Rule 11 reasonable opportunity for further investigation or discovery
4. any allegations denied by the D are true
Signing of pleadings, (c) Sanctions
Motions; (1) In General.
-If, after notice and a reasonable opportunity to respond, the court
Representations to Court; determines that Rule 11(b) has been violated, the court may impose an
appropriate sanction on any attorney, law firm, or party.
Sanctions -Law firm must be held jointly responsible for a violation committed by its
partner, associate, or employee.
(2) Motion for Sanctions.
-Filed separately b/c other party has 21 days after being served to withdraw
or correct paper (Safe Harbor rule). Need to give other party notice.
-If warranted, the court may award to the prevailing party the reasonable
expenses, including attorney's fees, incurred for the motion.
(3) On the Court's Initiative.
On its own, the court may order an attorney, law firm, or party to show
cause why conduct specifically described in the order has not violated Rule
11(b).
(5) Limitations on Monetary Sanctions.
The court must not impose a monetary sanction:
(A) against a represented party for violating Rule
11(b)(2)
EXISTING LAW NOT KNOWN BY LAYPERSON, SO SHOULD’NT
PUNISH
(a) Time to Serve A Responsive Pleading
When a complaint is filed, you can either
1) Answer within 20 days (60 if waive service of process)
2) File a pre-answer motion (12b defense, motion for more
definite statement, motion to strike)

(b) Defenses (must consolidate 2, 3, 4, 5 in ONE MOTION and waived if


not motioned or omitted in answer) **If make pre-answer motion, MUST
make there. Cannot wait until answer.
Rule 12 All other defenses MUST be in answer.
(1) Lack of subject-matter jurisdiction; (NEVER waived)
Defenses and Objections (2) lack of personal jurisdiction;
(3) Improper venue;
(4) Insufficient process; (adequacy of summons)
(5) Insufficient service of process; (how served)
(6) Failure to state a claim upon which relief can be granted*
(7) Failure to join a party under Rule 19.*
(h)(2)*6/7 can be raised in any pleading, motion on the pleading, or at
trial.

(i) Hearing Before Trial.


If a party so moves, any defense listed in Rule 12(b)(1)-(7) — whether
made in a pleading or by motion — and a motion under Rule 12(c) must be
heard and decided before trial unless the court orders a deferral until trial.
Procedure whereby a D may bring into an action a nonparty who is or may EX. Restaurant sells contaminated food to
be liable to D for all or party of a claim asserted by P against D: consumer. When sued by consumer, restaurant
i. For contribution impleads wholesaler who sold meat to
1. D still pays, but can get $ back from third-party restaurant as third-party D in same action.
ii. For Indemnification EX. Beth v. Grace.
1. D still pays, but can get $ back from third-party Grace sues Febus. F may be liable to both
G/B
Rule 14 1) May NOT be used if wrong party sued. D must have own claim against
third-party D. Can’t substitute person.
Impleader 2) Must have both personal and subject matter jurisdiction over third-party
D.
3) Once brought into action, 3D can assert own defense against P or
defense for D
(a)(1) P may amend complaint once (matter of right) any time before D’s SOL cannot have run
responsive pleading is served. Answer due in 20 days.
*Motion is not a responsive pleading!!!
(2) D may amend its answer once (matter of right) within 20 days.
-If D waives service of process, has 60 days to respond.
-Afterwards, must ask for written permission from other party or the
court’s leave. Court must grant when “justice so requires.”
(3) Any required response to an amended pleading must be within 10
days after service or within the time remaining to respond to the original
pleading, whichever is longer (Discovery often reveals relevant facts for
more claims)

(c) Rule 15(c) Relation Back of Amendments


1) Allowed when:
A) Law that provides the applicable SOL allows relation back;
B) Amendment asserts a claim or defense that arose out of the
conduct, transaction, or occurrence set out – or attempted
to be set out – in the original pleading; or
Rule 15 C) Amendment changes the party or the naming of the party
against whom the claim is asserted, 15(1)(B) is satisfied, and
Amended/Supp. Pleadings within 120 days of the original complaint, the new party
a. Received such notice of the action that it will not be
Relation Back prejudiced in defending on the merits; AND
b. Knew or should have known that the action would
have been brought against it, but for a mistake
concerning the proper party’s identity

(d) Supplemental Pleadings


Claims arising from events occurring after the filing of the complaint need
not be included in the proceedings; they will not be barred by res judicata.
However, if they so wish, they may add them.
(b) Scheduling and Planning The order shall be made ASAP, after the Rule
Must limit time to join parties, amend pleadings, complete discovery, and 26(f) conference, yet no more than
file motions. ONLY MANDATORY THING IS SCHEDULING A) 120 days after the complaint has been
ORDER. CONFERENCES ARE OPTIONAL. served -AND-
file motions B) 90 days after the D has made and
May modify timing of disclosures under 26(a) and 26(e)(1) appearance
May modify the extent of discovery
Rule 16 May provide for discovery or disclosure of electronically stored info A schedule shall not be modified except upon a
May include privilege/protection agreements on claims after info is showing of
Pretrial Conferences; produced 1) good cause and by leave of a district
Scheduling; Management May set dates for pretrial conferences and for trial judge -OR-
Judge can hold pretrial conferences any time before trial (16(c)) 2) when authorized by a local rule, by a
magistrate judge
(e) (discretionary) Final pretrial conference formulating trial plan. Held as
close to trial as reasonable. MOTION IN LIMINE – motion “in advance”
of trial to exclude evidence from the
proceedings
1. By Ps (And D as P) 18(a).
A party asserting a claim, counterclaim, crossclaim, or third-party claim
may join, as independent or alternative claims, as many claims as it has
against an opposing party
(Res judicata operates a compulsory joinder in requiring all Ds in one suit)

2. By Ds
a. Compulsory Counterclaims must bring claim or it will be waived
Rule 13(a)(1)
Rule 18 A pleading must state as a counterclaim any claim that — at the time of
its service — the pleader has against an opposing party if the claim:
Joinder of Claims (A) Arises out of the transaction or occurrence that is the subject
matter of the opposing party's claim; and
(B) Does not require adding another party over whom the court
cannot acquire jurisdiction.
Must join indispensable parties (Joint tortfeasors are not indispensable)
Rule 13(g) Crossclaim Against a Coparty.
A pleading may state as a crossclaim any claim by one party against a
coparty if:
A) the claim arises out of the transaction or occurrence that is the
subject matter of the original action or of a counterclaim, OR
B) if the claim relates to any property that is the subject matter of
the original action.
*The crossclaim may include claim that coparty is/may be liable to
crossclaimant for all/part of claim asserted in action against crossclaimant.
(failure to join indispensable party is Rule12(b) defense) Rule 19 was designed to differentiate between
“necessary” and “indispensable” parties.
(a) Persons Required to Be Joined if Feasible *Two controlling factors in this case:
A person who is subject to service of process and whose joinder will not 1) the inability of the federal district court to
deprive the court of subject-matter jurisdiction must be joined as a party if: finalize the litigation or to effectively adjudicate
2) In that person's absence, the court cannot accord complete relief the rights of all concerned parties, and
among existing parties; 2) the availability of adequate relief in the state
3) Person not in suit has interest relating to subject matter and court system. (Broussard)
disposing of suit w/o will affect interest;
4) Person claims interest relating to subject matter and disposal risks Steps:
leaving an existing party subject to a substantial risk of inconsistent 1) Fall within 3 categories?
or double obligations because of the interest 2) SMJ?
3) 4 factors to decide
Rule 19

Compulsive Joinder
(b) When Joinder Is Not Feasible - (falls within ^3 but would destroy
Subject Matter Jurisdiction)
Court must determine whether, in equity and good conscience, the action
should proceed among the existing parties or should be dismissed.
FACTORS:
(1) the extent to which a judgment rendered in the person's absence might
prejudice that person or the existing parties;
(2) the extent to which any prejudice could be lessened or avoided by:
(A) protective provisions in the judgment;
(B) shaping the relief; or
(C) other measures;
(3) whether a judgment rendered in the person's absence would be
adequate; and
(4) whether the plaintiff would have an adequate remedy if the action were
dismissed for nonjoinder.
Permissive Joinder and Consolidation B v. G, but not S. Can sue S later? Yes. Joinder
is permissible.
Requirements: 20(a)
Rule 20 1. Same transaction/occurrence
2. At least one common question of fact or law
Permissive Joinder *Then, Rule 18 kicks in and they can join, as independent or alternative
claims, as many claims as they have.
*Even if not every P has one specific claim common amongst them all,
each P has at least one common transaction/occurrence and common
question of law/fact with another P. (Guedry)
Rule 22 Permits insurance company who has to pay to join competing claimants
into one action, deposit money with court, and let court figure it out.
Interpleader Avoids inconsistent judgment and obligations.

Allows person to intervene and become a party (P or D) on own initiative. EX. Developer v Zoning Board
Rule 24 24(a) Intervention of Right. Homeowners risk, allowed b/c has
On timely motion, the court must permit anyone to intervene when: practical effect on them
Intervention (1) given an unconditional right to intervene by federal statute; or
(2) claims a legally protected interest relating to subject of the action not
adequately represented existing parties
(a) REQUIRED DISCLOSURES
(1) Initial Disclosure (within 14 days after 26(f) conference)
a. Name, address, telephone of individuals with
discoverable info supporting claims/defenses, along
with subjects of that info
b. Copy or description by category and location of all
documents, electronically stored info, and tangible
things in your control to support your claims/defenses
c. Computation of damages claimed
d. Any insurance agreement under which an insurance
business may be liable to satisfy all or part of a
possible judgment or to indemnify or reimburse for
payments
Rule 26
(2) Disclosure of Expert Testimony (at least 90 days before trial)
General Provisions Experts you may use at trial, retained/specially employed to provide expert
Governing Discovery; testimony in the case or whose duties as the party’s employee regularly
involve giving expert testimony
Duty of Disclosure a. Identity of expert witness
b. Written report, prepared and signed by witness, containing
1) complete statement of all opinions the witness will express and any
basis/reasons for them
2) data or other info considered by the witness in forming them
3) any exhibits that will be used to summarize or support them
4) witness’s qualifications, including a list of all publications authored
in the previous 10 years
5) a list of all other cases in which, during the previous 4 years, the
witness testified as an expert at trial or for deposition
6) a statement of the compensation to be paid for the study and
testimony of the case
(3) Pretrial Disclosure (at least 30 days before trial) info about evidence
a. Name, address, telephone number of each witness not
previously provided, separately identifying those
expected to present and those on call if the need arises
b. Designation of those witnesses whose testimony the
party expects to present by deposition, and if not taken
stenographically, a transcript of the pertinent parts
c. An identification of each document or other exhibit,
including summaries of other evidence, separately
identifying those items the party expects to offer and Duty to Update
those it may offer if the need arises Rule 26(e) requires a party to supplement prior
(b) DISCOVERY SCOPE AND LIMITS responses and initial disclosures “if the party
Generally, may ask for any nonprivileged info relevant [tendency to learns that in some material respect the info
(dis)prove something] to claim/defense. For good cause, court may order disclosed is incomplete or incorrect.” Updates
discovery of any matter relevant to the subject matter involved in the must be made “at appropriate intervals” and
action. “seasonably amend” prior responses to
(2) Limitations interrogatories, requests for production, and
Rule 26 (B) – need not provide discovery of electronically stored info from requests for admissions.
(continued) sources that the party identifies as not reasonably accessible because of
undue burden or cost. On motion to compel discovery, must show undue Obstacles to Discovery
General Provisions burden or cost. Court may nonetheless order such discovery for good cause. (b)(5) Privilege - Sacrifice of accuracy of the
Governing Discovery; (C) – Court must limit frequency or extent of discovery if adjudication in order to encourage of facilitate
1) unreasonably cumulative/duplicative or can be obtained from certain relationships (attorney-client, doctor-
Duty of Disclosure another source more conveniently/less expensively, patient, priest-parishioner, reporter-source)
2) party seeking has had ample opportunity to obtain info by d. All communications between
discovery in the action, or the attorney and client concerning
3) burden or expense outweighs the likely benefit (considering the representation are protected
the needs of the case, amount in controversy, parties’ from compelled disclosure
resources, importance of issues at stake, importance of the i. Only discussions with
discovery in resolving the issues) the client are protected
(3) Work Product - recognizes presumptive privilege for documents by the attorney-client
and tangible things prepared in anticipation of litigation or for trial by or for privilege.
any party or its representative (including attorney, consultant, surety, -Encourages candid communication between
indemnitor, insurer, or agent). client and attorney
Discoverable when: 1) in substantial need of the materials and 2) -COVERS ANY PERSONS, WHO BY
the seeking party cannot obtain the info by other means without undue VIRTUE OF THEIR JOB, HAVE
hardship. Nonetheless, the court will still “protect against disclosure of the RELEVANT INFO ABOUT THE DISPUTE
mental impressions, conclusions, opinions, or legal theories of an attorney (NOT JUST UPPER LEVEL
or other representative of a party concerning the litigation.” MANAGEMENT). ** Communications are
covered, but facts are not. Communicating a
fact to an attorney is one thing, but knowledge
of the fact is another.
(5)(A) – When withholding info b/c of privilege or protection, must 1) (c) Protective Orders - Party against whom
expressly make claim and 2) describe nature of info in order to let other discovery is sought can preemptively seek
parties assess the claims judicial intervention in the form of a protective
(5)(B) Waiver - In some jurisdictions, an inadvertent disclosure of order under Rule 26(c)
confidential information waves the privilege as to the full subject matter of 1. Only way to prevent or limit scope of a
the communication, while others only cover the document, and others do deposition
not waive. 2. Only effective relief if discovery sought is
1) Unintentional Production of Documents not actually objectionable, but simply
a. Attorneys often stipulate prior to discovery how to handle sensitive, embarrassing, or confidential.
unintentional production of privileged documents 3. Court has great flexibility to craft effective
b. RULE 26(b)(5)(B) – If info is produced that is subject to relief under 26(c)
privilege or protection, may notify other party of the claim a. Can order discovery not to be
and basis. They must return, sequester, or destroy info and conducted in a particular area
any copies; must not use or disclose info until claim is b. Can limit how the discovery will be
resolved; must take reasonable steps to retrieve info if taken and who will have access to
disclosed; and may present info under seal to court for it.
determination of the claim. *Duty to act triggers upon i. Can order that only the
Rule 26 notification attorneys have access and
(continued) 2) Disclosure to Third Parties - If the privileged communication is keep info confidential.
shared with anyone else, the privilege is destroyed. c. Rule 26(c) requires “good cause”
General Provisions a. If non-client present during attorney-client interview be shown for an issuance of a
Governing Discovery; b. If the client reports the information to a third party after the protective order.
privileged communication occurred, privilege destroyed. i. Parties often seek to
Duty of Disclosure c. *However, disclosure between attorneys in the same office, establish that discovery
as well as paralegals and secretaries working for the would disclose “proprietary
attorney does not destroy privilege. info,” thus putting them at a
commercial disadvantage.
(f) Conference of the Parties; Planning for Discovery 1. Courts will compel
(1) Must confer at least 21 days before scheduling 16(b) conference if relevant, but
(2) Parties must frequently limit its
A) Discuss claims/defenses and settlement/resolution dissemination.
B) Arrange for disclosures under 26(a)(1) d. If denied, moving party pays fees
C) Discuss preservation of discoverable info for motion. If granted, the party
D) Develop proposed discovery plan whose conduct made the order
(3) Discovery plan must state necessary to pay the movant’s fees.
A) Subjects on which discovery may be needed, how long needed
B) Issues on disclosure or discovery of electronically stored info
C) Issues of claims of privilege or of protection
D) Changes in limitations of discovery
*(Default rule – 25 interrogatories. Can agree to change.)
E) Fill out scheduling order and submit to judge
Oral examinations of witnesses under oath
1) Taken before court reporters or other “officers authorized to
administer oaths”
2) ANY person w/ relevant info may be deposed, even nonparties
3) Written notice of who is being deposed, where, when, and how,
must be given to every party.
4) Deposition may be recorded by audiotape, videotape, or
stenographer
5) Each party is limited to 10 depositions without leave of the court
(unless otherwise specified)
Rule 30 6) Unless specified, no deposition may exceed 7 hours
7) Deponents may be asked to bring documents or other tangible
Depositions and Oral evidence in their possession
Examination 8) Rule 30(b)(6) – Can name business or organization. Organization
must designate person(s) to testify on its behalf. [Puts control in
organization.] Can make objection if person obviously has no
subject matter knowledge.
9) 30(c) – Deponent’s counsel can make objection (preserving right to
object at trial), but can only instruct client not to answer if privilege
or a court-directed limitation. Under 30(d)(3), can terminate if
conducted in bad faith or unreasonably annoying, embarrassing, or
oppressive manner.
10) 30(e) – Deponent, upon request, must be allowed 30 days to review
the transcript and, if making changes in form or substance, sign a
statement listing the changes and reasons for making them.

Interrogatories - Written questions served by one party


1) Responses must be served within 30 days unless otherwise
stipulated
2) Only served on parties to the litigation
3) More than 25 questions, than must ask leave of the court [or
stipulate]
Rule 33 4) 33(d) – If an answer to an interrogatory can be found by examining
business records, and the burden of ascertaining them is the same
Interrogatories to Parties for either party, the responding party can specify the records and
give reasonable opportunity to examine, audit, and copy them.
1) Must be on a party, and scope of 26(b) (NON-PARTIES MUST
BE SUBPOENAED)
2) 34(b)(1)(C) – may specify form(s) in which electronically stored
Rule 34 info is to be produced. 34(b)(2)(E)(ii) – if not ordered or stipulated,
must be produced in form(s) in which it is ordinarily maintained or
Production of Documents, in a reasonably usable form(s).
Electronically Stored Info, 3) 32(b)(2)(E)(i) – Must produce documents as they are kept in usual
Tangible Things, and Entry course of business and must organize and label them to correspond
upon Land for Inspection to categories in the request.
and Others Purposes 4) 34(b)(2) – 30 days to respond unless ordered or stipulated
5) Precision is important as to not miss crucial information or deluge
oneself in irrelevant paper

Physical and mental evaluations of parties


1) Not a right. Court order is required.
2) Require a court order “for good cause shown” due to the highly
invasive nature of the examination. CONDITION MUST BE IN
Rule 35 CONTROVERSY
a. Court require a much greater showing of good cause when
Physical and Mental a party does not put her own condition in issue
Examination of Persons 3) May seek to use own examiner.
4) 35(b) – Examinee may request to see report. THEN, under 35(b)
(3), party who moved for examination is entitled upon request to
see earlier and later examinations of the same condition. 35(b)(4) -
Examinee also waives any right to doctor-client privilege

Served on any party, and the party must admit or deny the truth of any legal
or factual issues in the litigations
a. In the form of very specific questions
b. 36(a)(1)(A) May inquire into the application of law to the facts of
the case, or opinions about either; and the genuineness of any
Rule 36 described documents. 36(a)(4) Responding party must make a
reasonable inquiry into the truth of each contention.
Requests for Admission c. 36(b) A Rule 36 admission relieves the opposing party of the need
to provide evidentiary support at THAT trial. However, if the
matter is instead established at trial, if CAN be used in
SUBSEQUENT trials.
d. Any matter not denied or objected to in a timely fashion is
automatically deemed admitted
(a) Motion for order Compelling Disclosure of Discovery Procedures to Block (prior to compulsion)
(1) Appropriate court Objections – Unilateral refusals to produce
 Where action pending – motion required if deponent is party requested info, thus placing the burden of
 Where deposition pending – motion required if deponent not seeking judicial intervention on the party
party seeking discovery
(2) Motion e. Can be interposed in response to:
(A) if a party fails to disclose under 26a, the court may grant a i. Interrogatories
motion to compel disclosure, upon showing a good faith effort to ii. Questions at depositions
obtain the discovery without the court’s help iii. Requests for production of
(B) If a deponent refuses to answer, a party may make a motion for documents
an order compelling answer. If the court denies the motion, the iv. Requests for admissions.
deponent may be granted a protective order under rule 26c. f. May be asserted on the basis of
(3) Evasive or Incomplete Answer discovery:
 considered a failure to answer i. Beyond the scope of Rule
(4) Expenses and Sanctions 26(b) (not related to any
 if the motion is granted, or disclosure is made after the motion claim or defense)
is filed, the party/deponent must pay reasonable fees spent to ii. Sought in an improper
make the motion manner
Rule 37 iii. Calling for the disclosure of
 if the motion is denied and the motion is not substantially
privileged info
Sanctions for failure to justified, the party making the motion must pay reasonable fees
g. With the exception of objections at
Make or Cooperate in spent to oppose the motion
depositions, the objection is in lieu
Discovery  if the motion is denied in part and granted in part, expenses of a response
may be reasonably apportioned
 all sanctions will be determined by a court hearing. -If found unfounded, court will order a response
and award the moving party attorney’s fees
(b) Failure to Comply with Order incurred in making the motion, unless the
1. Sanctions by Court in District where Deposition is Taken motion was “substantially justified.”
 Failure to be sworn or provide an answer is considered -If found well founded, the court will order
contempt in that court attorney’s fees to be paid by the moving party.
2. Sanctions by Court in District Where Action is Pending::
i. Directing that the matters embraced in the order or other designated
facts be taken as established for purposes of the action, as the
prevailing party claims;
ii. Prohibiting the disobedient party from supporting or opposing
designated claims or defenses, or from introducing designated
matters in evidence;
iii. Striking pleadings in whole or in part;
iv. Staying further proceedings until the order is obeyed;
v. Dismissing the action or proceeding in whole or in part;
vi. Rendering a default judgment against the disobedient party; or
vii. Treating as contempt of court the failure to obey any order
Rule 37 EXCEPT an order to submit to a physical or mental examination.
(d) Complete failure of a party to respond to discovery, even after an
Sanctions for failure to attempt to resolve the dispute, may result, under 37(d):
Make or Cooperate in 1. Must require the party failing to act, the attorney advising that party, or
Discovery both to pay the reasonable expenses, including attorney's fees, caused
by the failure, unless the failure was substantially justified or other
CONT, circumstances make an award of expenses unjust

Rule 45 Subpoena is required to compel the attendance of a nonparty deponent.


Subpoena
JMOL - Judgment as Matter of Law When facts/inferences point so strongly for the
(formerly JNOV, DIRECTED VERDICT) D that the jury could not reasonably find for the
STANDARD: A reasonable jury would not have a legally sufficient P, the judge may award judgment as a matter of
evidentiary basis to find for the party on that issue. Essentially, law. (Dixon)
haven’t met burden of production. (50)(a)(1)
Rule 50 Court may do own on. 50(a)(1)(B) SJ v JMOL
Can motion judgment as matter of law: SJ is made before trial. (no genuine issue of
JMOL in a Jury Trial; 1) Any time before case submitted to jury, if party has been fully material fact in dispute so no need for trial)
heard on an issue 50 (a)(2) SJ is based solely on documentary evidence.
Related Motion for a New 2) D need not present evidence. Motion must specify judgment sought JMOL is made during or after trial (P has no
Trial; and the law/facts that entitle movant to the judgment. evidence to prove element so should not go to
*In order to move for JMOL after verdict (must be same grounds), must jury)
Conditional Ruling have made prior motion b/c gives notice of where case is deficient JMOL is based on oral testimony. (Cross-
*Must be made no later than 10 days after the entry of judgment examination can create reliability issues)
*Judge may not want grant JAMOL before jury verdict, then grant after b/c BOTH construe facts in favor to nonmoving
1) wants to give jury a chance to get it right. party
2) Still have jury verdict to go back on
When an action presents more than one claim for relief, the court may Generally, only appeal from Final Judgment.
direct entry of a final judgment as to one or more, but fewer than all, claims Final Judgment Rule - The courts of appeals
or parties only if the court expressly determines that there is no just reason shall have jurisdiction of appeals from all final
for delay. decisions of the district courts of the United
Rule 54(b) Otherwise, any order or other decision, however designated, that States
adjudicates fewer than all the claims or the rights and liabilities of fewer Final Decision – leaves nothing for
Judgment on Multiple than all the parties does not end the action as to any of the claims or parties court to do on merits but execute judgment
Claims or Involving and may be revised at any time before the entry of a judgment adjudicating Not FD – Denial of motion to dismiss
Multiple Parties all the claims and all the parties' rights and liabilities. (b/c don’t go into facts of case)
– Denial of SJ motion (b/c
EX. 4 claims. Rule 54 allows FJ as to one claim for immediate appeal while starts trial)
other 3 appeal to trial. – Transfer to different
forum/remand to state ct
*Consolidates issues into one appeal
Issues might become moot (lose SJ
but win at trial)
*Two aspects of 54(b) review:
1) scrutinize dist. court’s evaluation of factors such as interrelationship of
claims so as to prevent piecemeal appeals (if all claims related so only part
of issue dealt with and same issue appealed) cases which should be reviews
Rule 54(b) as one case,
2) substantial deference to dist. ct. since more familiar with case and
Judgment on Multiple reasons for delay. If decision clearly unreasonable, then can disturb
Claims or Involving assessment (Curtiss-Wright)
Multiple Parties

CONT.
(a)/(b) By Plaintiff/Defendant 1. Function – ascertain whether there
P may move for s.j. on all or part of the claim. The motion may be filed at evidentiary disputes that must be resolved at
any time after: trial TESTS LEGAL SUFFICIENCY OF
(1) 20 days have passed from commencement of the action; or CLAIMS
(2) The opposing party serves a motion for summary judgment a. Court determines whether party has
Defendant may move for s.j. on all or part of claim any time. satisfied burden of producing
(c) Serving the Motion; Proceedings evidence (burden of production)
Motion must be served at least 10 days before the day set for the hearing. that would support summary
Opposing party may serve opposing affidavits before the hearing day. judgment in its favor. If not, the
Judgment sought should be rendered if the pleadings, the discovery and case proceeds to trial (Determines
disclosure materials on file, and any affidavits show whether there is a genuine
1) no genuine issue as to any material fact and material issue of fact)
2) the movant is entitled to judgment as a matter of law. (STANDARD)

Rule 56 (d) Case Not Fully Adjudicated on the Motion


(1) Establishing Facts
Summary Judgment If s.j. not rendered on whole action, court should try to determine what’s
genuinely at issue by examining pleadings/evidence before it and
interrogating attorneys. It should then issue an order specifying what facts
— including items of damages or other relief — are not genuinely at issue.
The facts so specified must be treated as established in the action.
(e) Affidavits; Further Testimony
(2) Opposing Party's Obligation to Respond.
When s.j. motion properly made and supported, an opposing party may not
rely merely on allegations or denials in its own pleading; rather, its
response must — by affidavits or as otherwise provided in this rule —
set out specific facts showing a genuine issue for trial. If the opposing
party does not so respond, summary judgment should, if appropriate, be
entered against that party.
*****Do not have to support with affidavits. Must show specific
evidence establishing material fact in dispute. (Celotex)
(f) When Affidavits Are Unavailable.
If a party opposing the motion shows by affidavit that, for specified
reasons, it cannot present facts essential to justify its opposition, the court
may:
(1) Deny the motion;
(2) order a continuance to enable affidavits to be obtained,
Rule 56 depositions to be taken, or other discovery to be undertaken; or
(3) Issue any other just order.
Summary Judgment
(g) Affidavits Submitted in Bad Faith.
CONT. If satisfied that an affidavit under this rule is submitted in bad faith or
solely for delay, the court must order the submitting party to pay the other
party the reasonable expenses, including attorney's fees, it incurred as a
result. An offending party or attorney may also be held in contempt
(b) Time to File a Motion for a New Trial. Jury brings back verdict for P when should not
A motion for a new trial must be filed no later than 10 days after the entry have. Judge thinks wrong.
of judgment.
Rule 59 (d) New Trial on Court's Initiative or for Reasons Not in the Motion. 2 types:
No later than 10 days after the entry of judgment, the court, on its own, may 1) Flawed Verdict – focuses on
New Trial; order a new trial for any reason that would justify granting one on a party's correctness of verdict
motion. Ex. Jury fails to perform its function,
Altering or Amending a e.g., jury not listening to judge
Judgment instructions
Ex. Verdict is against the great weight
of the evidence.
2) Flawed Proceedings
(b) Grounds for Relief from a Final Judgment, Order, or Proceeding.
On motion and just terms, the court may relieve a party or its legal
representative from a final judgment, order, or proceeding for the following
reasons:
(1) Mistake, inadvertence, surprise, or excusable neglect;
(2) Newly discovered evidence that, with reasonable diligence,
Rule 60 could not have been discovered in time to move for a new trial
under Rule 59(b);
Relief from (3) Fraud (whether previously called intrinsic or extrinsic),
Judgment/Order misrepresentation, or misconduct by an opposing party;
(4) The judgment is void;
(5) the judgment has been satisfied, released, or discharged; it is
based on an earlier judgment that has been reversed or vacated; or
applying it prospectively is no longer equitable; or
(6) Any other reason that justifies relief.

Res judicata – “the thing has been decided” EX.


*prevents most collateral attacks (identical action against identical party) 1) A v. B (negligence)
1. Claim Preclusion – forbids relitigation of the “claims” in a 2) C v. B) (negligence)
subsequent proceeding C not estopped b/c C not party to first action.
a. Same claim Party being attacked must have been a party or
b. B/w the same parties in privity w/ a party to the first action
i. Either:
1) Literally the same parties, OR
2) Party in the second action is “in privity with” the party
in the first.
a. “In privity with” means either
i. someone not named formally in the first suit is so
closely connected to the suit that it is appropriate
to treat that person as if she had been named, OR
ii. the person not named in the first suit should be
bound nevertheless
b. Ex. of “in privity with”:
i. Successive interests in property
1. Alice owns Blackacre
2. Lawsuit determines that Ben has easement in
Blackacre
Claim Preclusion 3. When Caroline buys Blackacre from Alice,
she is bound by the first judgment and takes
the property subject to the easement
ii. Substantive Legal Relationships
1. If the substantive law of the relationship treats
A and B as substitutes, B will be bound by the
results of a lawsuit that A participated in
a. EX. Decedent/administrator of estate
iii. Express agreement to be bound by a decision
iv. Virtual Representation
1. Beneficiaries of a trust with identical interests
2. When someone, although not formally named
in the litigation, guides and controls the
litigation and the court treats the person as a
party
c. After a final judgment (pendency of appeal does not affect
finality)
d. On the merits (EX. 12(b)(6), summary judgment, trial,
judgment on pleadings, JMOL) (NOT lack of s.m. jurisdiction,
improper venue, personal jurisdiction, failure to join,
insufficient process or service of process)
i. Prohibits any claim that were or should have been asserted
ii. Ensures decisions are stable (finality), protects parties from
additional litigation, prevents double recovery, and alleviates
burdens on courts
a. When a person suffers both personal injuries and
property damage stemming from the same tort, only
one cause of action arises. Failure to sue for the entire
damage done in one suit results in loss of the chance to
do so. (Rush) Must be independent claim of
wrongdoing.
b. Test for whether res judicata bars a subsequent claim
is:
“Whether a different judgment in the second action would impair or destroy
rights or interests established by the judgment entered in the first action,
whether the same evidence is necessary to maintain the second cause of
action as was required in the first, and whether the essential facts and issues
in the second were presented in the first.” (Herendeen) Must be different
evidence.
c. Public policy isn’t enough to turn over res judicata.
Claim Preclusion Non-appealing parties may not benefit from a reversal
when their position is closely interwoven with that of
CONT. appealing parties. (Moitie)
d. A defendant may not split his cause of action against a
plaintiff is using part of it as a defense to the first
action and saving the remainder for a separate
affirmative suit (Mitchell)
e. Dismissal for lack of jurisdiction is not on the merits.
(Costello)
f. D who fails to state claim is precluded from making it.
Issue Preclusion (collateral estoppel) – forbids relitigation of specific
determinations made in a prior proceeding
1. Same issue
2. Between the same parties
a. Either:
i. Literally the same parties, OR
ii. Party in the second action is “in privity with” the party in the
first.
1) “In privity with” means either
a. someone not named formally in the first suit is so
closely connected to the suit that it is appropriate to
treat that person as if she had been named, OR
b. the person not named in the first suit should be Mutuality
bound nevertheless 1. Defensive Collateral Estoppel (used by
2) Ex. of “in privity with”: D) - D wants to use a favorable judgment
a. Successive interests in property against another D when the party against
i. Alice owns Blackacre whom defensive collateral estoppel is
ii. Lawsuit determines that Ben has easement in sought is the same party or parties with
Blackacre privity
iii. When Caroline buys Blackacre from Alice, she is Suit 1 A v. B
Issue Preclusion bound by the first judgment and takes the property Suit 2 A v. C
subject to the easement C seeks to use B’s judgment in its action
b. Substantive Legal Relationships
i. If the substantive law of the relationship treats A *Mutuality is not necessary where the liability
and B as substitutes, B will be bound by the of the D asserting res judicata is dependent on,
results of a lawsuit that A participated in or derived from, the liability of one who was
1. EX. Decedent/administrator of estate exonerated in an earlier suit brought by the
c. Express agreement to be bound by a decision same plaintiff on the same facts. Examples are
d. Virtual Representation master/servant, principle/agent, and
i. Beneficiaries of a trust with identical interests indemnitor/indemnitee. Promotes judicial
ii. When someone, although not formally named in economy by encouraging all possible Ds to be
the litigation, guides and controls the litigation tried together. (Bernhard)
and the court treats the person as a party 1. Offensive Issue Preclusion (used by P) -
3. Final judgment on the merits P wants to use an issue favorably
a. (EX. 12(b)(6), summary judgment, trial, judgment on decided for another P against the
pleadings, JMOL) (NOT lack of s.m. jurisdiction, improper same D)
venue, personal jurisdiction, failure to join, insufficient process 1) Broad discretion to allow OIP,
or service of process) 2) Except:
4. Actually litigated and determined a. If P could have been joined in
*If there is not a clear case of an actually litigated and determined first trial
issue (e.g., two possible scenarios could have led to an outcome), b. If unfair to the D
then issue not really litigated and i. Risks inconsistent judgments
determined. ii. If different procedural
**If appellate court upholds a finding, its opportunities between cases,
precluded e.g., different venue limiting
NOTE: Could have used special verdict in which jury set out the number of callable witnesses,
determined facts. (Parks). iii. If first action provided little
5. Essential to the judgment incentive to litigate
Issue Preclusion a. Estops parties from relitigating issues that were actually *General rule - in cases where a plaintiff could
litigated in a prior proceeding and were necessary to the prior easily have joined in the earlier action or where
CONT. judgment. the application of offensive estoppel would be
b. May assert on behalf of litigant not party to prior proceeding unfair to a defendant, a trial judge should not
allow the use of offensive collateral estoppel.

Certain orders result in irrevocable consequences.


Lack of Personal Jurisdiction not FJ, and not allowable collateral
order b/c can try to sue elsewhere. Even if can’t.

EX. Pres sued for actions during tenure and court revokes right to
immunity. Can appeal b/c right would be lost upon trial.
Collateral Orders EX. Forced medication

*It is important to have final judgments before appeals are made. A "right
not to go to trial," while significant, is rarely the key factor in a settlement
agreement, and cannot compare in importance to the right to be free from
"double jeopardy" in criminal court or the encroachment on public duties
caused by a denial of immunity to public officials (Digital)
Interlocutory Appeal – appeal order prior to disposition of case
EX. denial of motion to dismiss/discover

28 U.S.C. § 1292 (a)(1) All orders from injunctions can be appealed


(b) Dist. Ct. can certify issue for appeal if thinks involves a controlling
Interlocutory decisions question of law as to which there is substantial ground for difference of
opinion and that an immediate appeal from the order may materially
advance the ultimate termination of the litigation.
(Discretionary Appeal)