Description (a) Pleadings – only these are allowed 1. a complaint 2. an answer to a complaint 3. an answer to a counterclaim designated as a counterclaim 4. an answer to a crossclaim 5. a third-party complaint 6. an answer to a third-party complaint 7. If the court orders one, a reply to an answer

Rule 7 Pleadings Allowed; Form of Motions and other Papers

Case / Notes Burden of Pleadings dictates who’s obligated to allege an element of a claim. (COMPLAINT) 1) If P fails its burden, complaint vulnerable to a motion to dismiss for failure to state a claim Ex. Must prove all elements of cause of action 2) If D fails its burden, cannot raise that defense at trial Ex. Raise an affirmative defense *Sets boundaries of trial, precludes unfair surprise through new motions Burden of Proof allocates the duty of proving 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. CROSS REFERENCE Rule 9(b) – heightened pleading standards

(a) Notice Pleading – Complaint minimally requires 1. short and plain statement re jurisdiction 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: 1) Admit a. P is relieved of burden of proving 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

Rule 8 General Rules of Pleading

Rule 8 (continued) General Rules of Pleading

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… It is specifically denied… (d) Pleading to be Concise and Direct; Alternative Statements; 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. In alleging fraud or mistake, a party must state with particularity the 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 so with particularity. *May be heightened pleading requirements through statutory law (i.e. securities

CROSS REFERENCE Rule 8(a)(2) – short plain statement

Rule 9 Pleading Special Matters

(a) Signature -Every pleading. the court may award to the prevailing party the reasonable expenses. formed after an inquiry reasonable under the circumstances 1. allegations have evidentiary support or will likely have after a reasonable opportunity for further investigation or discovery 4. Need to give other party notice. On its own. law firm. -If warranted. law firm. the court may order an attorney. the claims.g. written motion. (3) On the Court's Initiative. or party. an attorney or unrepresented party is certifying to the best of that person’s knowledge. suit warranted by law & by fact Rule 11 Signing of pleadings. associate. and belief. the court may impose an appropriate sanction on any attorney. the court determines that Rule 11(b) has been violated. it is not being presented for any improper purpose (e. -Filed separately b/c other party has 21 days after being served to withdraw or correct paper (Safe Harbor rule). SO SHOULD’NT PUNISH WARNING: Beware of 11(c) in signing. (2) Motion for Sanctions. a pleading need not be verified or accompanied by an affidavit (b) Representations to Court by presenting to the court a pleading. information. or party to show cause why conduct specifically described in the order has not violated Rule 11(b). (5) Limitations on Monetary Sanctions. including attorney's fees. Representations to Court. 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. after notice and a reasonable opportunity to respond. Motions. and other paper must be signed by at least one attorney of record— or by a party personally if the party is unrepresented -Unless a rule or statute specifically states otherwise. cause unnecessary delay or needless increase in the cost of litigation) 2. Sanctions . -If. defenses and other legal contentions are warranted by existing law 3. -Law firm must be held jointly responsible for a violation committed by its partner. or employee. any allegations denied by the D are true (c) Sanctions (1) In General. incurred for the motion. to harass.

D still pays. Grace. motion on the pleading. If a party so moves. (NEVER waived) (2) lack of personal jurisdiction. 5 in ONE MOTION and waived if not motioned or omitted in answer) **If make pre-answer motion.* (h)(2)*6/7 can be raised in any pleading. Beth v. you can either 1) Answer within 20 days (60 if waive service of process) 2) File a pre-answer motion (12b defense. D must have own claim against third-party D. restaurant impleads wholesaler who sold meat to restaurant as third-party D in same action. but can get $ back from third-party ii. For Indemnification 1. MUST make there. (adequacy of summons) (5) Insufficient service of process. (4) Insufficient process. D still pays. EX. 2) Must have both personal and subject matter jurisdiction over third-party D.(a) Time to Serve A Responsive Pleading When a complaint is filed. motion to strike) (b) Defenses (must consolidate 2. Procedure whereby a D may bring into an action a nonparty who is or may be liable to D for all or party of a claim asserted by P against D: i. (how served) (6) Failure to state a claim upon which relief can be granted* (7) Failure to join a party under Rule 19. Can’t substitute person. For contribution 1. Restaurant sells contaminated food to consumer. 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. Cannot wait until answer. (1) Lack of subject-matter jurisdiction. 4. 3. 3D can assert own defense against P or defense for D Rule 12 Defenses and Objections EX. When sued by consumer. 3) Once brought into action. Grace sues Febus. motion for more definite statement. F may be liable to both G/B . (3) Improper venue. All other defenses MUST be in answer. or at trial. but can get $ back from third-party Rule 14 Impleader 1) May NOT be used if wrong party sued. (i) Hearing Before Trial.

they may add them. *Motion is not a responsive pleading!!! (2) D may amend its answer once (matter of right) within 20 days. 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. 15(1)(B) is satisfied. the new party a. has 60 days to respond. must ask for written permission from other party or the court’s leave. they will not be barred by res judicata. SOL cannot have run Rule 15 Amended/Supp. -If D waives service of process. -Afterwards. Answer due in 20 days. Court must grant when “justice so requires. transaction. and within 120 days of the original complaint. However. if they so wish. Received such notice of the action that it will not be prejudiced in defending on the merits. or C) Amendment changes the party or the naming of the party against whom the claim is asserted. B) Amendment asserts a claim or defense that arose out of the conduct. Knew or should have known that the action would have been brought against it. or occurrence set out – or attempted to be set out – in the original pleading. AND b.” (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. Pleadings Relation Back . 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.(a)(1) P may amend complaint once (matter of right) any time before D’s responsive pleading is served.

Rule 18 Joinder of Claims . By Ds a. By Ps (And D as P) 18(a). counterclaim. crossclaim. *The crossclaim may include claim that coparty is/may be liable to crossclaimant for all/part of claim asserted in action against crossclaimant. A party asserting a claim. or third-party claim may join. as many claims as it has against an opposing party (Res judicata operates a compulsory joinder in requiring all Ds in one suit) 2. Management (b) Scheduling and Planning Must limit time to join parties.Rule 16 Pretrial Conferences. and file motions. Must join indispensable parties (Joint tortfeasors are not indispensable) Rule 13(g) Crossclaim Against a Coparty. The order shall be made ASAP. and (B) Does not require adding another party over whom the court cannot acquire jurisdiction. OR B) if the claim relates to any property that is the subject matter of the original action. Compulsory Counterclaims must bring claim or it will be waived Rule 13(a)(1) 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: (A) Arises out of the transaction or occurrence that is the subject matter of the opposing party's claim. Held as close to trial as reasonable. as independent or alternative claims. 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. complete discovery. file motions May modify timing of disclosures under 26(a) and 26(e)(1) May modify the extent of discovery May provide for discovery or disclosure of electronically stored info May include privilege/protection agreements on claims after info is produced May set dates for pretrial conferences and for trial Judge can hold pretrial conferences any time before trial (16(c)) (e) (discretionary) Final pretrial conference formulating trial plan. after the Rule 26(f) conference. Scheduling. amend pleadings. CONFERENCES ARE OPTIONAL. by a magistrate judge MOTION IN LIMINE – motion “in advance” of trial to exclude evidence from the proceedings 1. yet no more than A) 120 days after the complaint has been served -ANDB) 90 days after the D has made and appearance A schedule shall not be modified except upon a showing of 1) good cause and by leave of a district judge -OR2) when authorized by a local rule. ONLY MANDATORY THING IS SCHEDULING ORDER.

and 2) the availability of adequate relief in the state court system. FACTORS: (1) the extent to which a judgment rendered in the person's absence might prejudice that person or the existing parties.(failure to join indispensable party is Rule12(b) defense) (a) Persons Required to Be Joined if Feasible A person who is subject to service of process and whose joinder will not deprive the court of subject-matter jurisdiction must be joined as a party if: 2) In that person's absence. and (4) whether the plaintiff would have an adequate remedy if the action were dismissed for nonjoinder. Can sue S later? Yes. in equity and good conscience. (3) whether a judgment rendered in the person's absence would be adequate. 4) Person claims interest relating to subject matter and disposal risks leaving an existing party subject to a substantial risk of inconsistent or double obligations because of the interest Rule 19 Compulsive Joinder (b) When Joinder Is Not Feasible . the court cannot accord complete relief among existing parties. Same transaction/occurrence 2. (Broussard) Steps: 1) Fall within 3 categories? 2) SMJ? 3) 4 factors to decide B v. as many claims as they have. Rule 18 kicks in and they can join. Joinder is permissible. G. At least one common question of fact or law *Then. *Two controlling factors in this case: 1) the inability of the federal district court to finalize the litigation or to effectively adjudicate the rights of all concerned parties. but not S. Permissive Joinder and Consolidation Rule 20 Permissive Joinder Requirements: 20(a) 1. . (Guedry) Rule 19 was designed to differentiate between “necessary” and “indispensable” parties. (B) shaping the relief.(falls within ^3 but would destroy Subject Matter Jurisdiction) Court must determine whether. *Even if not every P has one specific claim common amongst them all. as independent or alternative claims. (2) the extent to which any prejudice could be lessened or avoided by: (A) protective provisions in the judgment. the action should proceed among the existing parties or should be dismissed. 3) Person not in suit has interest relating to subject matter and disposing of suit w/o will affect interest. each P has at least one common transaction/occurrence and common question of law/fact with another P. or (C) other measures.

prepared and signed by witness. Developer v Zoning Board Homeowners risk. 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. 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 (2) Disclosure of Expert Testimony (at least 90 days before trial) Experts you may use at trial. the court must permit anyone to intervene when: (1) given an unconditional right to intervene by federal statute. during the previous 4 years. Computation of damages claimed d. Duty of Disclosure . along with subjects of that info b. retained/specially employed to provide expert testimony in the case or whose duties as the party’s employee regularly involve giving expert testimony a. 24(a) Intervention of Right.Rule 22 Interpleader Rule 24 Intervention Permits insurance company who has to pay to join competing claimants into one action. including a list of all publications authored in the previous 10 years 5) a list of all other cases in which. Copy or description by category and location of all documents. telephone of individuals with discoverable info supporting claims/defenses. 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. Identity of expert witness b. Allows person to intervene and become a party (P or D) on own initiative. Written report. On timely motion. Avoids inconsistent judgment and obligations. deposit money with court. allowed b/c has practical effect on them Rule 26 General Provisions Governing Discovery. and let court figure it out. and tangible things in your control to support your claims/defenses c. 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 EX. Name. address. electronically stored info.

opinions. separately identifying those items the party expects to offer and those it may offer if the need arises (b) DISCOVERY SCOPE AND LIMITS Generally. address. .Rule 26 (continued) General Provisions Governing Discovery. or agent). court may order discovery of any matter relevant to the subject matter involved in the action.” Updates must be made “at appropriate intervals” and “seasonably amend” prior responses to interrogatories. importance of the discovery in resolving the issues) (3) Work Product . and requests for admissions. Only discussions with the client are protected by the attorney-client privilege. importance of issues at stake. Name. Duty of Disclosure (3) Pretrial Disclosure (at least 30 days before trial) info about evidence a. may ask for any nonprivileged info relevant [tendency to (dis)prove something] to claim/defense. insurer. indemnitor. surety. All communications between attorney and client concerning the representation are protected from compelled disclosure i. Discoverable when: 1) in substantial need of the materials and 2) the seeking party cannot obtain the info by other means without undue hardship. requests for production. including summaries of other evidence. amount in controversy. or legal theories of an attorney or other representative of a party concerning the litigation. Nonetheless. and if not taken stenographically. reporter-source) d. consultant. -Encourages candid communication between client and attorney -COVERS ANY PERSONS. Court may nonetheless order such discovery for good cause. (C) – Court must limit frequency or extent of discovery if 1) unreasonably cumulative/duplicative or can be obtained from another source more conveniently/less expensively. the court will still “protect against disclosure of the mental impressions.recognizes presumptive privilege for documents and tangible things prepared in anticipation of litigation or for trial by or for any party or its representative (including attorney. but facts are not. conclusions. (2) Limitations (B) – need not provide discovery of electronically stored info from sources that the party identifies as not reasonably accessible because of undue burden or cost. An identification of each document or other exhibit. separately identifying those expected to present and those on call if the need arises b. On motion to compel discovery.Sacrifice of accuracy of the adjudication in order to encourage of facilitate certain relationships (attorney-client. Designation of those witnesses whose testimony the party expects to present by deposition. doctorpatient. Obstacles to Discovery (b)(5) Privilege . WHO BY VIRTUE OF THEIR JOB. priest-parishioner. HAVE RELEVANT INFO ABOUT THE DISPUTE (NOT JUST UPPER LEVEL MANAGEMENT). For good cause. but knowledge of the fact is another. 2) party seeking has had ample opportunity to obtain info by discovery in the action. ** Communications are covered. Communicating a fact to an attorney is one thing. parties’ resources. telephone number of each witness not previously provided. a transcript of the pertinent parts c. must show undue burden or cost.” Duty to Update Rule 26(e) requires a party to supplement prior responses and initial disclosures “if the party learns that in some material respect the info disclosed is incomplete or incorrect. or the 3) burden or expense outweighs the likely benefit (considering the needs of the case.

an inadvertent disclosure of confidential information waves the privilege as to the full subject matter of the communication. must 1) expressly make claim and 2) describe nature of info in order to let other parties assess the claims (5)(B) Waiver .In some jurisdictions.” thus putting them at a commercial disadvantage. or destroy info and any copies. and others do not waive. . may notify other party of the claim and basis. *Duty to act triggers upon notification 2) Disclosure to Third Parties . must take reasonable steps to retrieve info if disclosed. If the client reports the information to a third party after the privileged communication occurred. Can order that only the attorneys have access and keep info confidential. If denied. If granted. c. the privilege is destroyed. If non-client present during attorney-client interview b. Attorneys often stipulate prior to discovery how to handle unintentional production of privileged documents b. the party whose conduct made the order necessary to pay the movant’s fees. Only effective relief if discovery sought is not actually objectionable. 3. 1) Unintentional Production of Documents a.If the privileged communication is shared with anyone else. 1. 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. must not use or disclose info until claim is resolved. Planning for Discovery (1) Must confer at least 21 days before scheduling 16(b) conference (2) Parties must A) Discuss claims/defenses and settlement/resolution B) Arrange for disclosures under 26(a)(1) C) Discuss preservation of discoverable info D) Develop proposed discovery plan (3) Discovery plan must state A) Subjects on which discovery may be needed. but simply sensitive. Can order discovery not to be conducted in a particular area b. RULE 26(b)(5)(B) – If info is produced that is subject to privilege or protection. *However. but frequently limit its dissemination. Only way to prevent or limit scope of a deposition 2.) E) Fill out scheduling order and submit to judge (c) Protective Orders . sequester. Court has great flexibility to craft effective relief under 26(c) a. or confidential. i. as well as paralegals and secretaries working for the attorney does not destroy privilege. Can agree to change. moving party pays fees for motion. a. and may present info under seal to court for determination of the claim. Can limit how the discovery will be taken and who will have access to it. i. while others only cover the document.Rule 26 (continued) General Provisions Governing Discovery. Duty of Disclosure (5)(A) – When withholding info b/c of privilege or protection. embarrassing.Party against whom discovery is sought can preemptively seek judicial intervention in the form of a protective order under Rule 26(c) 1. disclosure between attorneys in the same office. Rule 26(c) requires “good cause” be shown for an issuance of a protective order. privilege destroyed. Parties often seek to establish that discovery would disclose “proprietary info. They must return. Courts will compel if relevant. (f) Conference of the Parties. c. d.

when. where. sign a statement listing the changes and reasons for making them. upon request. 10) 30(e) – Deponent. can terminate if conducted in bad faith or unreasonably annoying. Under 30(d)(3).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. embarrassing. 4) Deposition may be recorded by audiotape. and copy them. [Puts control in organization. Organization must designate person(s) to testify on its behalf. 9) 30(c) – Deponent’s counsel can make objection (preserving right to object at trial). must be given to every party. or stenographer 5) Each party is limited to 10 depositions without leave of the court (unless otherwise specified) 6) Unless specified. and how. if making changes in form or substance. or oppressive manner. the responding party can specify the records and give reasonable opportunity to examine. must be allowed 30 days to review the transcript and. audit.Rule 30 Depositions and Oral Examination 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. but can only instruct client not to answer if privilege or a court-directed limitation. Rule 33 Interrogatories to Parties . Interrogatories .] Can make objection if person obviously has no subject matter knowledge. than must ask leave of the court [or stipulate] 4) 33(d) – If an answer to an interrogatory can be found by examining business records. no deposition may exceed 7 hours 7) Deponents may be asked to bring documents or other tangible evidence in their possession 8) Rule 30(b)(6) – Can name business or organization. even nonparties 3) Written notice of who is being deposed. videotape. and the burden of ascertaining them is the same for either party.

party who moved for examination is entitled upon request to see earlier and later examinations of the same condition. under 35(b) (3). Court require a much greater showing of good cause when a party does not put her own condition in issue 3) May seek to use own examiner. 4) 35(b) – Examinee may request to see report. 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. Tangible Things. if the matter is instead established at trial. Any matter not denied or objected to in a timely fashion is automatically deemed admitted Rule 35 Physical and Mental Examination of Persons Rule 36 Requests for Admission . 36(b) A Rule 36 admission relieves the opposing party of the need to provide evidentiary support at THAT trial. Court order is required. or opinions about either. c. 36(a)(1)(A) May inquire into the application of law to the facts of the case. and Entry upon Land for Inspection and Others Purposes 2) 34(b)(1)(C) – may specify form(s) in which electronically stored info is to be produced. must be produced in form(s) in which it is ordinarily maintained or in a reasonably usable form(s).1) Must be on a party. if CAN be used in SUBSEQUENT trials. and the genuineness of any described documents. Electronically Stored Info. 34(b)(2)(E)(ii) – if not ordered or stipulated. 35(b)(4) Examinee also waives any right to doctor-client privilege Served on any party. THEN. 36(a)(4) Responding party must make a reasonable inquiry into the truth of each contention. d. and scope of 26(b) (NON-PARTIES MUST BE SUBPOENAED) Rule 34 Production of Documents. 3) 32(b)(2)(E)(i) – Must produce documents as they are kept in usual course of business and must organize and label them to correspond to categories in the request. However. and the party must admit or deny the truth of any legal or factual issues in the litigations a. CONDITION MUST BE IN CONTROVERSY a. In the form of very specific questions b. 2) Require a court order “for good cause shown” due to the highly invasive nature of the examination.

Requests for production of documents iv. the party making the motion must pay reasonable fees spent to oppose the motion  if the motion is denied in part and granted in part. the court may grant a motion to compel disclosure. Dismissing the action or proceeding in whole or in part. unless the motion was “substantially justified. or from introducing designated matters in evidence. If the court denies the motion. court will order a response and award the moving party attorney’s fees incurred in making the motion. Sought in an improper manner iii. Beyond the scope of Rule 26(b) (not related to any claim or defense) ii. thus placing the burden of seeking judicial intervention on the party seeking discovery e. Sanctions by Court in District where Deposition is Taken  Failure to be sworn or provide an answer is considered contempt in that court 2. Requests for admissions. Staying further proceedings until the order is obeyed. as the prevailing party claims. Prohibiting the disobedient party from supporting or opposing designated claims or defenses. Procedures to Block (prior to compulsion) Objections – Unilateral refusals to produce requested info. iv. Questions at depositions iii. May be asserted on the basis of discovery: i. (b) Failure to Comply with Order 1. Interrogatories ii. Can be interposed in response to: i. expenses may be reasonably apportioned  all sanctions will be determined by a court hearing. the party/deponent must pay reasonable fees spent to make the motion  if the motion is denied and the motion is not substantially justified. Sanctions by Court in District Where Action is Pending:: i.Rule 37 Sanctions for failure to Make or Cooperate in Discovery (a) Motion for order Compelling Disclosure of Discovery (1) Appropriate court  Where action pending – motion required if deponent is party  Where deposition pending – motion required if deponent not party (2) Motion (A) if a party fails to disclose under 26a. upon showing a good faith effort to obtain the discovery without the court’s help (B) If a deponent refuses to answer. the court will order attorney’s fees to be paid by the moving party. (3) Evasive or Incomplete Answer  considered a failure to answer (4) Expenses and Sanctions  if the motion is granted. or disclosure is made after the motion is filed. a party may make a motion for an order compelling answer. iii. the objection is in lieu of a response -If found unfounded. v. ii. With the exception of objections at depositions. f. the deponent may be granted a protective order under rule 26c. Calling for the disclosure of privileged info g. Striking pleadings in whole or in part. Directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action. .” -If found well founded.

4 claims. including attorney's fees. claims or parties only if the court expressly determines that there is no just reason for delay. Rule 50 JMOL in a Jury Trial. Must require the party failing to act. Final Judgment Rule . the court may direct entry of a final judgment as to one or more. JMOL . *In order to move for JMOL after verdict (must be same grounds). but fewer than all. EX. When facts/inferences point so strongly for the D that the jury could not reasonably find for the P. even after an attempt to resolve the dispute. Related Motion for a New Trial. 50(a)(1)(B) Can motion judgment as matter of law: 1) Any time before case submitted to jury. Rule 45 Subpoena Rendering a default judgment against the disobedient party. only appeal from Final Judgment. Otherwise. the judge may award judgment as a matter of law. then grant after b/c 1) wants to give jury a chance to get it right. must have made prior motion b/c gives notice of where case is deficient *Must be made no later than 10 days after the entry of judgment *Judge may not want grant JAMOL before jury verdict. caused by the failure. JMOL is made during or after trial (P has no evidence to prove element so should not go to jury) JMOL is based on oral testimony.Rule 37 Sanctions for failure to Make or Cooperate in Discovery CONT. (no genuine issue of material fact in dispute so no need for trial) SJ is based solely on documentary evidence. any order or other decision. or Treating as contempt of court the failure to obey any order EXCEPT an order to submit to a physical or mental examination. (50)(a)(1) Court may do own on. (Crossexamination can create reliability issues) BOTH construe facts in favor to nonmoving party Generally. Motion must specify judgment sought and the law/facts that entitle movant to the judgment. if party has been fully heard on an issue 50 (a)(2) 2) D need not present evidence. haven’t met burden of production. 2) Still have jury verdict to go back on When an action presents more than one claim for relief. the attorney advising that party. (d) Complete failure of a party to respond to discovery. however designated. Conditional Ruling Rule 54(b) Judgment on Multiple Claims or Involving Multiple Parties . Essentially. that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities.The courts of appeals shall have jurisdiction of appeals from all final decisions of the district courts of the United States Final Decision – leaves nothing for court to do on merits but execute judgment Not FD – Denial of motion to dismiss (b/c don’t go into facts of case) – Denial of SJ motion (b/c starts trial) – Transfer to different forum/remand to state ct vi.Judgment as Matter of Law (formerly JNOV. under 37(d): 1. unless the failure was substantially justified or other circumstances make an award of expenses unjust Subpoena is required to compel the attendance of a nonparty deponent. Rule 54 allows FJ as to one claim for immediate appeal while other 3 appeal to trial. may result. vii. (Dixon) SJ v JMOL SJ is made before trial. DIRECTED VERDICT) STANDARD: A reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue. or both to pay the reasonable expenses.

Judgment sought should be rendered if the pleadings. (c) Serving the Motion. The motion may be filed at any time after: (1) 20 days have passed from commencement of the action. (a)/(b) By Plaintiff/Defendant P may move for s.*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 should try to determine what’s genuinely at issue by examining pleadings/evidence before it and interrogating attorneys. motion properly made and supported. 2) substantial deference to dist. ct. It should then issue an order specifying what facts — including items of damages or other relief — are not genuinely at issue.j. Court determines whether party has satisfied burden of producing evidence (burden of production) that would support summary judgment in its favor. if appropriate. summary judgment should.j. then can disturb assessment (Curtiss-Wright) Rule 54(b) Judgment on Multiple Claims or Involving Multiple Parties CONT. Function – ascertain whether there evidentiary disputes that must be resolved at trial TESTS LEGAL SUFFICIENCY OF CLAIMS a. When s. (STANDARD) Rule 56 Summary Judgment (d) Case Not Fully Adjudicated on the Motion (1) Establishing Facts If s. since more familiar with case and reasons for delay. rather. or (2) The opposing party serves a motion for summary judgment Defendant may move for s. If the opposing party does not so respond. If decision clearly unreasonable. be 1. the case proceeds to trial (Determines whether there is a genuine material issue of fact) . the discovery and disclosure materials on file. The facts so specified must be treated as established in the action. on all or part of claim any time. an opposing party may not rely merely on allegations or denials in its own pleading. (e) Affidavits.j. If not.j. Further Testimony (2) Opposing Party's Obligation to Respond. its response must — by affidavits or as otherwise provided in this rule — set out specific facts showing a genuine issue for trial. on all or part of the claim. 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 as one case. Opposing party may serve opposing affidavits before the hearing day. not rendered on whole action. and any affidavits show 1) no genuine issue as to any material fact and 2) the movant is entitled to judgment as a matter of law. Proceedings Motion must be served at least 10 days before the day set for the hearing.

(g) Affidavits Submitted in Bad Faith. depositions to be taken. on its own. (2) order a continuance to enable affidavits to be obtained. or other discovery to be undertaken.g. Jury fails to perform its function. Jury brings back verdict for P when should not have. A motion for a new trial must be filed no later than 10 days after the entry of judgment. (3) Fraud (whether previously called intrinsic or extrinsic). No later than 10 days after the entry of judgment. On motion and just terms. for specified reasons. including attorney's fees. An offending party or attorney may also be held in contempt (b) Time to File a Motion for a New Trial. jury not listening to judge instructions Ex. Judge thinks wrong. it incurred as a result. or excusable neglect. it cannot present facts essential to justify its opposition. order. surprise. Verdict is against the great weight of the evidence. 2 types: 1) Flawed Verdict – focuses on correctness of verdict Ex. could not have been discovered in time to move for a new trial under Rule 59(b). or Proceeding. e..entered against that party. (4) The judgment is void. or . Altering or Amending a Judgment Rule 60 Relief from Judgment/Order (b) Grounds for Relief from a Final Judgment. (Celotex) (f) When Affidavits Are Unavailable. (2) Newly discovered evidence that. the court may: (1) Deny the motion. 2) Flawed Proceedings Rule 59 New Trial. Must show specific evidence establishing material fact in dispute. Rule 56 Summary Judgment CONT. inadvertence. the court must order the submitting party to pay the other party the reasonable expenses. If a party opposing the motion shows by affidavit that. it is based on an earlier judgment that has been reversed or vacated. with reasonable diligence. released. or proceeding for the following reasons: (1) Mistake. or (3) Issue any other just order. the court. or discharged. Order. the court may relieve a party or its legal representative from a final judgment. (5) the judgment has been satisfied. misrepresentation. or misconduct by an opposing party. (d) New Trial on Court's Initiative or for Reasons Not in the Motion. If satisfied that an affidavit under this rule is submitted in bad faith or solely for delay. *****Do not have to support with affidavits. may order a new trial for any reason that would justify granting one on a party's motion.

Beneficiaries of a trust with identical interests 2. EX. OR ii. Substantive Legal Relationships 1. summary judgment.applying it prospectively is no longer equitable. Alice owns Blackacre 2. Claim Preclusion – forbids relitigation of the “claims” in a subsequent proceeding a. Decedent/administrator of estate iii. Same claim b. 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. although not formally named in the litigation. B will be bound by the results of a lawsuit that A participated in a. B/w the same parties i. “In privity with” means either i. 12(b)(6). Ex. trial. a. guides and controls the litigation and the court treats the person as a party c. B) (negligence) C not estopped b/c C not party to first action. When Caroline buys Blackacre from Alice. After a final judgment (pendency of appeal does not affect finality) d. Either: 1) Literally the same parties. Express agreement to be bound by a decision iv. Party being attacked must have been a party or in privity w/ a party to the first action Claim Preclusion . OR 2) Party in the second action is “in privity with” the party in the first. or (6) Any other reason that justifies relief. Res judicata – “the thing has been decided” *prevents most collateral attacks (identical action against identical party) 1. If the substantive law of the relationship treats A and B as substitutes. 1) A v. she is bound by the first judgment and takes the property subject to the easement ii. EX. When someone. B (negligence) 2) C v. Lawsuit determines that Ben has easement in Blackacre 3. Virtual Representation 1. On the merits (EX. the person not named in the first suit should be bound nevertheless b. Successive interests in property 1. of “in privity with”: i.

prevents double recovery. Non-appealing parties may not benefit from a reversal when their position is closely interwoven with that of appealing parties. 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. Prohibits any claim that were or should have been asserted ii. and alleviates burdens on courts a. protects parties from additional litigation.” (Herendeen) Must be different evidence. Failure to sue for the entire damage done in one suit results in loss of the chance to do so.Claim Preclusion CONT. Ensures decisions are stable (finality). (Costello) f. . (Rush) Must be independent claim of wrongdoing. jurisdiction. improper venue. JMOL) (NOT lack of s. When a person suffers both personal injuries and property damage stemming from the same tort. Public policy isn’t enough to turn over res judicata. 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. Dismissal for lack of jurisdiction is not on the merits. D who fails to state claim is precluded from making it. b.m. c. only one cause of action arises. failure to join. personal jurisdiction. and whether the essential facts and issues in the second were presented in the first. judgment on pleadings. insufficient process or service of process) i. whether the same evidence is necessary to maintain the second cause of action as was required in the first. (Moitie) d.

When Caroline buys Blackacre from Alice. EX. or derived from. If the substantive law of the relationship treats A and B as substitutes. and indemnitor/indemnitee. Offensive Issue Preclusion (used by P) P wants to use an issue favorably decided for another P against the same D) 1) Broad discretion to allow OIP. Lawsuit determines that Ben has easement in Blackacre iii. Alice owns Blackacre ii. of “in privity with”: a. Between the same parties a. she is bound by the first judgment and takes the property subject to the easement b. B Suit 2 A v. B will be bound by the results of a lawsuit that A participated in 1.m. 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. Examples are master/servant. 12(b)(6). Same issue 2. the liability of one who was exonerated in an earlier suit brought by the same plaintiff on the same facts. jurisdiction. summary judgment. Substantive Legal Relationships i. guides and controls the litigation and the court treats the person as a party 3. although not formally named in the litigation. Express agreement to be bound by a decision d. Decedent/administrator of estate c. If P could have been joined in . Virtual Representation i. Successive interests in property i. 2) Except: a. improper venue. insufficient process or service of process) 4. judgment on pleadings. Beneficiaries of a trust with identical interests ii. personal jurisdiction. Party in the second action is “in privity with” the party in the first. OR ii. Literally the same parties. When someone. OR b. Actually litigated and determined Mutuality 1. Either: i. trial. Final judgment on the merits a. 1) “In privity with” means either a. failure to join. the person not named in the first suit should be bound nevertheless 2) Ex. Defensive Collateral Estoppel (used by D) . C C seeks to use B’s judgment in its action *Mutuality is not necessary where the liability of the D asserting res judicata is dependent on. JMOL) (NOT lack of s.Issue Preclusion Issue Preclusion (collateral estoppel) – forbids relitigation of specific determinations made in a prior proceeding 1. Promotes judicial economy by encouraging all possible Ds to be tried together. principle/agent. (Bernhard) 1. (EX.D wants to use a favorable judgment against another D when the party against whom defensive collateral estoppel is sought is the same party or parties with privity Suit 1 A v.

g. 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. § 1292 Interlocutory decisions (a)(1) All orders from injunctions can be appealed (b) Dist. May assert on behalf of litigant not party to prior proceeding Certain orders result in irrevocable consequences.C. Essential to the judgment a. Can appeal b/c right would be lost upon trial. denial of motion to dismiss/discover first trial b. (Discretionary Appeal) . 5.. is rarely the key factor in a settlement agreement.S. A "right not to go to trial. can certify issue for appeal if thinks involves a controlling 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. b. then issue not really litigated and determined. EX. If different procedural opportunities between cases. **If appellate court upholds a cases where a plaintiff could easily have joined in the earlier action or where the application of offensive estoppel would be unfair to a defendant. EX. Forced medication *It is important to have final judgments before appeals are made. If unfair to the D i. different venue limiting number of callable witnesses. two possible scenarios could have led to an outcome). Estops parties from relitigating issues that were actually litigated in a prior proceeding and were necessary to the prior judgment. Lack of Personal Jurisdiction not FJ. *If there is not a clear case of an actually litigated and determined issue (e. If first action provided little incentive to litigate *General rule . Ct. Collateral Orders 28 U.. e. a trial judge should not allow the use of offensive collateral estoppel. (Parks). iii.Issue Preclusion CONT. Even if can’t.g. and not allowable collateral order b/c can try to sue elsewhere. its precluded NOTE: Could have used special verdict in which jury set out the determined facts. Pres sued for actions during tenure and court revokes right to immunity. Risks inconsistent judgments ii." while significant.

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