CIVIL PROCEDURE OUTLINE

I. DUE PROCESS
a. What courts must have to adjudicate a case: i. Comes from the 5th and 14th Amendment (no person shall be deprived of life, liberty, or loss of land without due process) ii. Service/Notice iii. Jurisdiction 1. Personal jurisdiction (over parties) 2. Subject matter jurisdiction (over case) a. Federal question jurisdiction b. Diversity jurisdiction iv. Proper venue

II.

DUE PROCESS: THE RIGHT TO NOTICE AND THE OPPORTUNITY TO BE HEARD
a. Process Due i. Hamdi v. Rumsfeld 1. Facts – Hamdi, U.S. citizen detained for being an enemy combatant and never given due process. 2. Rule – Citizen must always have some form of due process. Even where there are special circumstances (war crimes) you still need due process. This case shows us how much due process is really appropriate. Enemy combatants – Guilty unless proven guilty – O’Connor. Every U.S. citizen is due some notice of hearing and we use Mathews to determine this. ii. The Mathews test: How much process is due? 1. Established in Mathews v. Eldridge, provides a test for balancing issues of the Government’s autonomy with a citizen’s right for due process to prevent erroneous deprivation of process 2. Determined by weighing the private interested affected by the government against the Government’s asserted interest and the burdens the Government would face in granting more process. 3. Erroneous Deprivation – the court will weigh the risk of erroneous deprivation as well in light of the facts and circumstances of the case b. Right to Notice i. Fed. R. C.P. 4: Provides a way to assure notice – follow the rule and you have given constitutionally adequate notice 1. Central Function: to provide notice that a legal action has been filed, and to provide this notice in such a manner and at such a time that the defending party will have a fair opportunity to answer the pleading and raise defenses and objections. 2. Purpose of Summons – to alert the defendant that a lawsuit is pending against him and that he has a limited time in which to respond.

a. Subject matter jurisdiction, personal jurisdiction, and venue must all be present before a defendant can be served properly with a summons and complaint. 3. Multiparty, Multiforum Jurisdiction Statute – Where federal jurisdiction is based, in whole or in part, upon the federal multiparty, multijurisdictional statute, service can be made at any place within the United States or , if otherwise permitted by law, anywhere outside the United States. 4. Burden of Proof – the party attempting service generally bears the burden of establishing that the service is proper. 5. The summons MUST: a. Issue from the Clerk – the summons must be issued by the clerk of court, and must bear the court’s seal and the clerk’s signature. b. Identify the Case – the summons must also identify the district court, name the parties to the lawsuit, and list the name and address of plaintiff of plaintiff’s attorney. c. Directed to the Defendant – the summons must be directed specifically to the defendant. d. Time to Appear – the summons must state the time within which the defendant must appear and defend. e. Warn Against Default – the summons must caution the defendant that a failure to appear and defend will result in the entry of a default judgment for the relief requested in the complaint. 6. The summons and complaint are served together. The plaintiff is responsible for effective service. 7. Age - Any person over the age of 18 who is not a party to the lawsuit may serve original process. 8. State Marshal can serve upon plaintiff’s request BUT he must serve in the cases of pauper plaintiffs or seamen plaintiffs. 9. Service must occur after the complaint is filed. 10. Waiver-of-Service a. The waiver-of-service procedure applies to defendants except: i. The United States as a defendant ii. agencies, corporations, or officials of the US as defendants iii. other governments and government-related entities as defendants iv. infant defendants v. incompetent defendants 11.Serving Corporations a. Service to the agent authorized to accept process or a manager or under the state rule for service of a corporation. 12. Rule 4: Best to Worst a. Hand deliver b. Certified Mail c. Hand Deliver to an Agent – must be over 18 d. Mailing/Posting e. Publication 13.Default action – served with a complaint and you don’t respond. The plaintiff wins by default. 14.Expires – 120 Days (after the date of the issuance of the summons) 15.Lack of Service can be Waived ii. The Mullane test: What type of service is appropriate? 1. General standard for constitutionally sufficient notice

III. PERSONAL JURISDICTION

2. Notice should be “reasonably calculated” to apprise interested parties iii. Notice: The Constitutional Dimension 1. Greene v. Lindsey a. Facts – Tenants, Appellees, lived in a Louisville, Kentucky housing project. The Deputy Sheriff was responsible for the serving process. He posted a copy of the write of forcible entry and detainer on their door when they didn’t answer. The appellees claim to have never received it because kids in the neighborhood often take things posted on doors off. b. Rule – Application of Mullane. Was not adequate notice. Notice must be reasonably calculated, under all the circumstances. Feasible alternatives existed that would’ve been more constitutional notice. (in this case, mail would have been the reasonable method given the nature of the neighborhood – mail was an inexpensive, efficient mechanism) iv. Notice: Constitutional Requirements Ritualized: Rule 4 1. National Development Co. v. Triad Holding Corp. and Khashoggi a. Facts – Rich guy had houses all over the world, claimed service to his NY apartment not adequate b. Rule – Rule 4(d)(1) – requires that service of summons must be delivered to the persons “dwelling house or usual place of abode.” ACTUAL SERVICE IS NOT SUFFICIENT, MUST BE ACCORDING TO RULE 4. In this case, the expensive condo was a dwelling.

a. Territorial Jurisdiction from Pennoyer v. Neff – old model i. Pennoyer v. Neff 1. RULE: Physical presence dictates personal jurisdiction a. Must exist at the TIME the lawsuit was filed 2. This was because travel was difficult at this time, people were mostly illiterate, and the country was founded on basis of states’ rights ii. Pennoyer territorial model of jurisdiction evolved because of increase in technology, ease of travel, more mobile society, commerce b. PERSONAL JURISDICTION ANALYSIS i. FIRST look at - Long-Arm Statute 1. Broad or Narrow depending on the State a. The analysis ends here if you can’t get jurisdiction under Long-Arm Statute ii. Constitutional Basis for Jurisdiction 1. Can we get jurisdiction over the defendants in a way that goes with the Constitution? a. Service of Non-Resident In-State? i. Shaffer v. Heitner 1. Facts – Heitner was a shareholder in Greyhound who sued a number of officers of the company. He moved to “sequester” their property in Delaware. This property included the defendants’ stock in Greyhound and other financial instruments. The motion was granted. The court reversed.

2. Rule - The Shoe model should be applied to jurisdiction in rem as well as in personam when minimum contacts are a substitute for actual physical presence. The court will no longer allow the states to assert jurisdiction merely because somebody owns some property in that state. Must analyze property as a contact. ii. Burnham v. Superior Court 1. Facts – Man served with divorce papers to appear in CA court while on a visit to his kids in CA. 2. Rule - Service of process upon a non-resident physically present in the forum state is almost always valid and does not violate constitutional due process. Transitory presence is sufficient. There is therefore no need to apply the "minimum contacts" test because there was actual presence. b. Consent? i. The person being haled into court can consent to personal jurisdiction. ii. Most common way is a “forum selection clause.” (Waiver of right to detest jurisdiction.) iii. Carnival Cruise Line – forum selection clauses are generally good unless procured by fraud. 1. Rule: Generally, forum selection clauses will be upheld unless there is fraud, etc. because signing the forum selection clause signifies your submission to the specific court and waiving your right to have it elsewhere. Held that forum selection clause helps the cruise line keep costs down for tickets by not having to worry about litigating anywhere, makes people certain about litigation while traveling. 2. Why is the court inverting the traditional rules about contracts of adhesion? Policy reasons – upholding the sanctity of the contract is paramount, forum selection clauses should be upheld for efficiency, these transactions are so routine that it would be unreasonable for every passenger to negotiate 3. After this case, legislation enacted that forum selection clauses in a form ticketed type agreement wouldn’t be sufficient for personal jurisdiction when related to transportation). 4. Brownie Points – Will every forum selection clause not procured by fraud give us personal jurisdiction? Point this out if the clause it iffy to you. If it’s really iffy, go on and do the constitutional analysis. c. Service of Non-Resident Outside the State

Automobile accident) ii. Superior Court . Isolated and Irregular (Related) – Maybe jurisdiction ** (specific) 4. Rule . Got to have minimum contacts.i. No Contacts – No jurisdiction 2. Kulko v.If protected by the laws of a state shall be subject to personal jurisdiction in that state. Exception: If P made unilateral decision to move to another state. Denckla a. unilateral action of FL woman was not purposeful availment by D 3. When continuous corporate operations within a state were thought so substantial and of such a nature as to justify suit against it on causes of action arising from dealings entirely distinct from those activities. Purposeful Availment – did the defendant purposefully avail himself of contacts in the state? 1. should not subject D to jurisdiction in that state because they had no purposeful availment of contact 2. Continuous and Systematic (Related) – Probably jurisdiction ** SPECIFIC 5. Changes rule from territoriality to minimum contacts. Substantial/Significant/Continuous – GENERAL – means that there is jurisdiction and we don’t have to continue down this road. Specific v. However. substantial justice b. fair play. Contacts were too minimum. 6. Hanson v. d. International Shoe Test a. Minimum Contacts 1. General – Discuss this on the test (will probably be specific jurisdiction but will get points if you mention why it’s not general and tell that you will analyze it under specific) 1. Rule – The court held that a FL court did not have jurisdiction over a DE trust company that entered into a trust agreement with a DE woman who moved to FL. Specific Jurisdiction i. even a single contact can be enough if the cause of action is about that contact (ex. Need to have enough contact with the state like consistent corporate operation s with the state even where the suit is not about those operations c. Isolated and Irregular Contacts (Unrelated) – No jurisdiction 3.

W. World-Wide Volkswagen a. He did not purposefully avail himself – wife unilaterally decided to move to CA iii. Special Considerations – 1. Rule . Asahi – mention distinction between O’Connor Standard and Brennan Standard. Burger King – just because they have a contract doesn’t mean there is jurisdiction but it is a very strong contact. They started a product liability suit against the present appellants and others in Oklahoma. b. Court decides to determine when the disputed product leaves the stream of commerce to examine foreseeability. Stream of Commerce -. unilateral activity of the plaintiff should not be enough to subject the defendant to jurisdiction in OK when the defendant did nothing to avail themselves of activity there or they would not have reasonably foreseen it iv. These parties have a contract.Not foreseeable (not enough to satisfy jurisdiction-W. O’Connor – stream of commerce PLUS (marketing) ii.a. VW)  Foreseeable (could depend on whether the court favored WWVW or Asahi)  Stream of commerce plus (Asahi) a. i. b. Foreseeability – Did the defendant reasonably foresee that they could be haled into court in this jurisdiction? 1. were you just aware that the product might end up in that state. could they have reasonably foreseen that it would hail . 2. World Wide – Stream of commerce: manufacturer – distributor – shipper – retail – consumer. Contract PLUS analysis. Rule – The court held it was unconstitutional for CA to exercise jurisdiction over a NY father who sued for divorce from his wife who moved to CA. They got into a car accident in Oklahoma where the fuel tank exploded.Majority bases their decision on foreseeable that the defendants would be haled into court in Ok --no purposeful availment. Contract – a. Facts – Somebody bought a car from a car dealership in New York. Brennan – lesser standard.

4 Circuit’s “adapted and adopted” Zippo model -. Internet/Websites – where do these contacts fall on the Zippo sliding scale? Where do the contacts fit into the 4th Circuit “adapted and adopted” Zippo model in ALS and AccuSport? a.personal jurisdiction over a nonresident defendant can be exercised when that person i. Active websites – If defendant enters into contracts with residents of a foreign jurisdiction that involve the knowing and repeated transmission of files over the internet (clearly does business) personal jurisdiction is proper ii. More than Likely Sufficient. Interactive websites where a user can exchange information with the host computer personal jurisdiction decided after determining the level of interactivity and commercial nature of info exchange that occurs iii.them into court in a certain state. In considering whether contract creates a contact look at the following factors: i. The “contemplated future consequences” of entering into the contract iii. The course of dealings between the parties c. Passive websites that just make info available to those interested no personal jurisdiction th b. i. A contract is a really strong contact. look at the interactivity of the websites. b. The nature and prior negotiations between the parties ii. with the manifested intent of engaging in business or other interactions in the state . The terms of the contract iv. directs electronic activity into the State ii. if the lawsuit is related to the contract at all. more than likely the court will find jurisdiction 3. Zippo Sliding Scale – “nature and quality” of the contacts with the forum state are the issue.

Keeton v. Domicile a. Permanent Resident Aliens are domiciled in the state in which they reside (only look at this is other party is a U. § 1331 1. Rule: Courts will tend to stretch to establish personal jurisdiction when the defendant is charged with an intentional tort. If claim arises from a single contact with the forum state. Relatedness between contacts and legal action 1. interstate judicial system’s shared interest in efficiency 5. 3 factors will be determinative (burden on defendant. Non-permanent Resident Alien is not considered a resident of any state. plaintiff’s interest. Intentional Torts (libel.C.S. Facts: ∏ sued for libel ii. v. burden on the defendant to defend in forum state 2. citizen) 3. the court will probably exercise specific jurisdiction over the claim vi. Claim “arises under” federal law. and is considered domiciled in the foreign nation in which they are from ii.iii. Federal courts – limited jurisdiction ii. etc. interest of the plaintiff to have it adjudicated in this state 4. interest of forum state (state laws or policies are at stake or when state’s citizens are involved)most important) IV. slander. that activity creates a potential cause of action in the State’s courts 4.S. Diversity jurisdiction – based on 28 U. Dual Court System i. respect between states/ nations interstate policy interests 6. Perry below 2. Federal question jurisdiction – based on 28 U. SUBJECT MATTER JURISDICTION: Due Process and the Dual Court System a. State courts – general jurisdiction b. § 1332 1. See Mas v. 3.) – courts reach farther to find sufficient contacts a. constitution or international treaty c. interests of the forum state. An intention of returning or remaining i.S.C. Fairness – Asahi factors 1. Burden to show subject matter jurisdiction rests on the plaintiff . Place where party has a physical presence and b. Hustler i. Federal courts get subject matter jurisdiction from either: i.

Permanent Resident Aliens are considered to be residents of the state they are in. (be sure to check this) b. One plaintiff. now most jurisdictions consider it independently 2. probate ii. iii. Federal courts have exclusive jurisdiction over issues that need consistency in rulings and they are very complex areas of law. Concurrent jurisdiction: shared jurisdiction b/w federal and state courts. One Plaintiff with claim over 75. National Labor Relations Act (deals with Unions) f. Individuals – Based on domicile and intention to remain indefinitely. a. c.d. Only use aggregation with same plaintiff. Amount-in-controversy: It has to exceed $75. two plaintiffs who are both citizens of Missouri may invoke diversity of citizenship against three defendants. all three of whom are citizens of Kansas. No diversity between two citizens of foreign nations ii.000 total. Women – used to be equal to domicile of husband. child custody) 2. plaintiffs can choose to file in either e. a. family law (divorce. Aggregation of claims i. Patent and copyright matters 4. Corporations –Dual citizenship in: a. Figure out Citizenships 1. Federal Diversity Jurisdiction i. Nerve Test – where are all the decisions being made? . The constitution says in Article 3 Section 2 – any cases between citizens of two different states can be heard in federal court. State of principal place of business. 2 claims add up to 75. That got pulled back by congress and not all cases can be heard. different jurisdictions use different tests to determine where this is: (this test is jurisdiction specific. It requires only that no plaintiff be a co-citizen with any defendant. same defendant – can’t include a third party defendant brought in v. State where it is incorporated b.000 = works ii. Can’t use interest in coming up with that amount 2. Bankruptcy 3.S. ERISA (employee retirement act) 2. They made the following limits in Statute 1332: 1.000 a. Two plaintiffs. claims add up to 75. Must have at least one citizen of the U. Some examples: 1. make sure to note this if it is not given to you) i.000 = does not work. Non-permanent Resident Aliens are domiciled in the foreign nation in which they reside d. can’t aggregate claims. State courts have exclusive jurisdiction over 1. Thus. Exclusive jurisdiction: only either federal or state courts have jurisdiction over a case i. 2 defendants = works iv. AND have Complete Diversity – all the plaintiffs must be different from all the defendants (Strawbridge Rule) – at the time of filing.

Easterbrook held there was no diversity jurisdiction on appeal. and permanent home and principal establishment. etc. Trusts. Unincorporated Enterprises – Partnerships. trustee or member is a citizen a. threw out case. forum-selection clausescontesting of personal jurisdiction must be done prior to answering summons b/c once you answer. take citizenship of every state where a general and limited partner. Personal jurisdiction can be waived: consent. Facts: Man had no real domicile. fixed. 2. Subject matter jurisdiction cannot be waived: parties cannot agree to having the case heard. Rule: Subject matter is a ticking time bomb. attorneys had to pay to re-try case in state court b. “Ticking Time Bomb” of subject matter jurisdiction 1.000.ii. Estates – Citizenship determined by the decedent 4. can kill a case as soon as the defect is discovered. Rule: Diverse citizenship must be present at the time the suit is filed. Bethlehem a. Belleville Catering. Federal trial court heard case based on diversity. LLC a.” iii. you are deemed to have consented to jurisdiction of the court 3. Muscle Test – where are they doing the most actual work? 3. unlike in personal jurisdiction where the person has to object in a certain amount of time or it will not be dismissed and people can waive their rights to jurisdiction. Facts: Husband (French national) and wife try to sue their LA landlord over two-way mirrors. (12(b)(1) is not waived if not brought in either a pre-trail motion or answer) 5. lived in OH and PA and wasn’t settled in either b. Tanzymore v. Question was whether wife was also domiciled in LA. Champaign Market Place. Diversity is based on domicile. either before judgment of after trial. Do not treat citizenship of unincorporated enterprises like individuals. lawyers should be really careful and make sure that the court absolutely has jurisdiction iv. Why might a corporation want to go to federal court? 1. LLCs. J. Entered judgment for D for $220. P appealed. Perry i. v. Jury pool may be more diverse . Inc. and this Plaintiff could not prove his domicile was diverse from D. Domicile is the place of “his true. ***lack of subject matter jurisdiction is a ticking time bomb that can come up at any time and kill a case. Rule: Burden to show subject matter jurisdiction rests on the plaintiff. Facts: Lease dispute. it’s ticking time bomb—can destroy a case when lack of it is discovered 4.. the judges must decidecontesting of subject matter jurisdiction can be raised at any time during the case. and to which he has the intention of returning whenever he is absent therefrom. ii. Mas v. It will be dismissed if it is found not to have subject matter jurisdiction no matter how late in the case.

Reasons Against Diversity Jurisdiction – a. Keeps federal judges up-to-date on state statutory and common law. 1. c. Louisville v. more time and resources Federal courts are more likely to throw cases out because of lack of political pressure v. Almost half of our cases in our federal court system are diversity jurisdiction cases and eliminating those cases would make more room for cases in which the federal court is more equipped to handle (civil rights. is not sufficient if the only the defenses raises a federal question 1. iii.Judges are not elected Docket might be slower Federal courts favor business generally Federal courts know the cases better. the plaintiff must. etc. Private right of action requirement: in order for someone to file a lawsuit. 3. Mottley a.S. establishing either than federal law creates the cause of action ii. “Well-pleaded complaint” Requirement – Plaintiff’s complaint must include the federal question. Not all federal laws contemplate a private party filing a lawsuit under it. Well-pleaded complaint just means the central claim is related to a federal question. Construction Laborers Vacation Trust (US Supreme Court. Rule: No federal question just because defendant raises it. 2. Federal Question Jurisdiction i. g. 6.C. federal law must be an “ingredient” of the dispute ii.” 2. or that the plaintiff’s right to relief necessarily depends on resolution of a substantial question of federal law. they have to have a private right of action (suing under a federal law that allows them to file a suit). Franchise Tax Board v. 2. Facts: Train wreck victims signed a release and settled outside of court—got free train passes for life. Justice Holmes’ test: lower federal courts have jurisdiction to hear “well-pleaded complaints” i. Out-of-State citizens cannot always count on a fair trial in a state court b. 5. 4. 28 U. Reasons For Diversity Jurisdiction – a. Train company refused to give them passes after federal law passed prohibiting it. Relieves the caseload of state courts. Plaintiffs filed in federal court but only raised a federal question in anticipation of the defendant’s defense b. Policy 1. . State concerned cases need to be kept in state courts. 1983): summarizes the current test for determining whether a case “arises under” federal law. § 1331: federal question jurisdiction is exercised when the case “arises under” federal law has a substantial and direct bearing on the case.) b.

doesn’t apply to claims brought by third party c. Pendent 2. the P can’t use supplemental jurisdiction to bring claims against parties brought in as third parties – this only applies when you can’t get an independent claim under diversity jurisdiction or federal question anyway. Common law developed allowing federal courts to hear state law claims under certain conditions 2. Exceptional circumstances or compelling reasons for declining 1. In a case founded on diversity. The claim raises a novel or complex state issue ii. The Gibbs Test 1.C. Supplemental Jurisdiction i. If the claim predominates over the claim under original jurisdiction iii. Immigration laws – you can’t individually sue someone you think is an illegal alien h. combined and codified into 28 U. Ex: Patriot Act – you can’t sue someone directly under it. Gibbs (US Supreme Court.S. § 1367 provides supplemental jurisdiction a. Federal courts may decline supplemental jurisdiction if i. All claims under original jurisdiction have been dismissed iv. If a federal court has original jurisdiction over a claim. A common problem in federal litigation is that multiple claims frequently arise out of the same nucleus of facts and involve some of the same parties 1.C. Problem that § 1367 seeks to solve is: How should a federal court proceed when it does not have subject matter jurisdiction over some of the claims? ii. § 1367 – Supplemental Jurisdiction 1.a. supplemental jurisdiction includes joinder or intervention of additional parties b. § 1367 was passed in 1990 to codify the best of the common law concerning “supplemental jurisdiction” 3.S. 1966) – stated the basic test for tacking on claims under supplemental jurisdiction . United States Mine Workers v. Ancillary 3. 28 U. Common law types of supplemental jurisdiction 1. § 1367 iii. Advantage: eliminated judge-made distinction between pendent and ancillary jurisdiction by combining them both into supplemental jurisdiction 4. Ex: P bringing in a claim late in the case iv. then all other related claims forming the same case or controversy can be heard by a federal court also by supplemental jurisdiction.

”Home state rule” -. all must agree to the removal 6. ∆ may not remove case after 365 days from the date of filing 5. Would a jury get confused? b. based their decision on factual relatedness: a. Policy: no reason to fear prejudice in your own state. convenience. 28 U. If there are multiple defendants. by service or otherwise to file for removal 3. Rule: Federal jurisdiction predicated on diversity of citizenship can be sustained even if there did not exist complete diversity at the time of removal to federal court. Caterpillar v. § 1441 (Federal Removal Statute) are met 2. In diversity. Case would be removed to the federal court that embraces jurisdiction of the state court where the original action was filed 3. In diversity.S. Remand – 28 U. 1441 –Actions removable a. Is there economy.C. 28 U. Where there are joined claims that are typically non-removable. Is the federal claim substantial? i. if action is not removable at time of filing. Lewis a. and fairness to litigants? c. “Home. If an action filed in state court could have been brought in federal court (concurrent).base rule” is not applicable to subject matter jurisdiction pursuant to 28 USC 1331 (federal question) 1. the district court may remove all of the claims of the case. ii.defendant cannot remove a case to federal court based on diversity if any of the defendants are citizens of the state where the case is pending i. § 1446 – Procedure for removal 1. ∏’s motion to remand was denied. Policy: the court system wants federal questions to be resolved in the federal system ii. ∆ has 30 days from filing of amended complaint (pleading) to make a motion to remove 4. 2. b. Federal Removal Jurisdiction 1. iii.S. and have the discretion to remand the claims that were traditionally nonremovable b. It is within a court’s discretion to exercise subject matter jurisdiction over the related claims. thus no need for a neutral forum and the plaintiff’s choice should be honored. The defect in federal jurisdictional requirements was cured at the time of judgment. Test provides principals for tacking a state law “branch” claim to a federal “trunk” 3.S. Facts: Case was not legally removable under statute at time Caterpillar moved to remove.C. § 1447 – Procedure after Removal .S.2. The case shall be removed to the federal jurisdiction that embraces the jurisdiction of the state court where the action was filed.C. a defendant may be able to remove the case to federal court if the requirements of 28 U. ∆ has 30 days from the time served with summons and receipt of the complaint.C. so long as complete diversity exists at the time the district court enters judgment.

if all defendants reside in the same state 2. Transfer of Venue i. SMJ and venue are very often confused. iii. if no other venue is proper from above two subsections ii. venue can be. Venue relates to the proper district in which to bring the action. (c) Corporations as Defendants 1. If state has more than one judicial district. Judicial district where any defendant resides. depends on the size of the state b. Judicial district in which a substantial part of events or omissions occurred. Once removed. 28 USC § 1391 i. Judicial district where any defendant resides. Subject matter is a question of power or authority.1. (d) Alien may be sued in any district 1. Judicial district in which any defendant is subject to personal jurisdiction. Judicial district in which any defendant may be found. or substantial part of property involved 3. if there is no other district in which the case could be brought iii. Based upon statutes ii. and the corporation is subject to personal jurisdiction in that state. In this case courts will typically attempt to transfer to a proper venue (see below) c. and district will work so long as the corporation has such contacts in that district that will subject it to personal jurisdiction (PJ analysis for each district in the state) 3. the ∏ has 30 days to fill for a remand to state court V. SMJ cannot be conferred by agreement. Remember Venue is waived unless timely objected too (this would be a 12(b)(3) motion to dismiss based on improper venue) 2. Judicial district in which a substantial part of the events or omissions occurred that give rise to the claim or substantial part of the property of subject is situated 3. VENUE: Transfers within Federal Court System (Best Place to Hear Case) a. If the above two do not result in a proper venue. Subject matter jurisdiction is the power of the court to adjudicate the matter before it. 28 USC § 1404 (inconvenient venue) proper . (b) Venue case based not solely on diversity (solely federal question or federal question/diversity) 1. (a) Venue case based solely on diversity 1. A court can have SMJ without being the proper venue. Basic Concept: Venue is concerned with where is the district is proper. then it can be the district with the most substantial contacts with the defendant iv. if all defendants reside in the same state 2. Venue Generally i. Corporations shall be deemed to reside in any judicial district in which it is subject to personal jurisdiction at the time of filing 2. venue is a question of convenience.

i. This is true even where the plaintiff initiates a transfer for convenience after initially choosing the inconvenient forum. consent or stipulation of all parties at the discretion of the court form the division in which it is pending to any other division in the same district (12(b)(3). Phillip Morris (sua sponte) i. i. Original Venue Proper – A transfer solely on convenience grounds (under section 1404(a)) carries to the transferee court the original applicable (under Erie) rules (including choice of law). consent) 3. Generally means a case is dismissed based on inconvenient venue 1. Original Venue Improper – A transfer of the ground that the original choice of venue was improper (under section 1406(a)) generally results in a change of the law applicable under Erie. (b): Venue can be transferred based on motion. the court must find that venue is improper and the case would be better held in a foreign nation or different court system (state rather than federal court) 4.e. Should we force federal courts to impose the substantive law of the state in which they sit? ii.. In order to dismiss a case based on venue. sua sponte.. the law of the state in which the transferee court sits.e. Forum non conveniens almost always arises when the issues concerns whether an appropriate venue would be international – courts are very reluctant to dismiss a case based on venue 2. Stipulated that if there is no written statute the federal court would use federal common law and would use state procedural rules (use federal substantive law and state procedural law) e. Three Questions Answered by Erie and Post Erie Line of Cases i. Which procedural rules are they obligated to follow.1. I. 28 USC 1406 (defective venue) improper 1. Forum non conveniens i. ii. District court may dismiss a case based on improper venue (wrong court system) a. Venue may be transferred sua sponte (on the courts initiative) based on the inconvience the case would place the judicial district in b. Reyno a. state or federal? . ERIE DOCTRINE AND CHOICE OF LAW (Deals only with Diversity) d. Piper v. the law of the state in which the transferor court sat. (c): District court may order any civil action to be tried at any place within the division in which it is pending a. Republic of Bolivia v. (a): district court may transfer any civil action to any other district or division where it might have been brought 2. Pre-Erie: Swift Doctrine i.

substantive o Choice of law rules – substantive o Elements of a claim or defense . including the state’s conflict of law rules. i. If it is a matter of procedure. This is called a Hannah Rule so the following must be met: (if its not. and o Avoid unfair differences in administration of justice between state and federal courts. in diversity cases the court must adhere to the written and unwritten law of the state in which they sit (state substantive law) and follow to federal laws that govern procedure a. go to *) • Does it Met the Twin Aims of Erie? – o Stop forum shopping.R. is required to apply the substantive law of the state in which it is sitting. Generally the claim itself isn’t going to be what we are talking about. Erie v. provided that it is valid (which is usually difficult to determine)  Then you look at whether the federal procedural rule governs and controls the situation completely. the federal judge must follow state law in a diversity case. If there is the federal law will apply.substantive . Co.  Is there a Federal Directive on Point? – To determine whether the federal law should be applied..iii. the federal judge may ignore state law. FRCP) on point. in the exercise of its diversity jurisdiction. What is the difference between the substantive and procedural rules? f. o A federal court. To discourage forum shopping ii. Is the Issue Substance of Procedure? If it is a matter of substance. The hard question is: which statute of limitations to apply. Tompkins R.g. (We had this in Hannah). Avoidance of Inequitable Administration of the Laws • Result should be the same regardless of where the case is this only applies in diversity cases because if it were federal question then you would already know to apply federal law. the federal courts apply federal procedural law in diversity cases.(We generally want the outcome to be the same whether in state or federal court)  *If There is No Federal Directive on Point. Court reversed the Swift Doctrine 1. Look at this in terms of the state law – would the state law be outcome determinative? • Some Situations are Clearly Established o Statutes of limitations . or which service rule. It must expressly address the situation. Twin Aims of Erie: i. statute. o A diversity case where there is a state law claim and we can’t tell if it’s procedural or substantive and we are trying to decide whether to apply state law or federal rules. (Eric and Klaxon) However. the first question to ask is whether there is a federal law (e.

If a FEDERAL RULE (frcp) govern an issue that you would have to invalidate or ignore to apply state law. but they apply that states conflict law g. which way makes the most sense. The conflict laws are usually very specific. v. DON’T ASSUME THAT NORTH CAROLINA STATE COURTS WILL ALWAYS APPLY NORTH CAROLINA LAWS. A more modern approach is more flexible and take a more fact sensitive approach. Plumer 1. How do we tell the difference between substantive and procedural law (where is the line of demarcation) i. but each state is different now. If rule would change the result in state court. Originally it was called lex loci delicti (place where the thing happened). Hanna v. Almost any rule can be construed as outcome determinative ii. The case tells us that federal courts apply the conflicts law of the forum. (if all arrows are pointing towards state law. Where determining if a law is substantive or procedural analyze the law under the twin aims of Erie. 1. This doesn’t mean that they use the states laws that they are in. York Court 1. look at state policies versus federal policies – which can result in a court going either way – so we must hope that the Supreme Court has ruled on this issue before – Look at Chart in the book to see what they have previously ruled on.Law is Unclear in Other Situations o Outcome Determinative Test – holds that an issue is substantive if it substantially affects the outcome of the case (Guaranty Trust Co. the same rule should apply in federal court a. Held that if a law would be outcome determinative then it would be classified as substantive law 2.  in Bird we see that this is where you do a bit of a balancing test. then it is procedural and you have to apply the federal rule even if the state law is outcome determinative 2. York) o Balance of Interests – the court weighs whether the state or federal judicial system has the greater interest in having its rules applied. Plumer) • Conflict Laws – (Klaxon case) o Conflicts laws – a set of rules which tell the state which state laws to apply. The court first has to decide whether to apply federal or state law…and then which state. outcome determinative is simple a test • . there has to be a very strong interest for applying the federal law in order to apply federal law) o Forum Shopping Deterrence (one of the aims of Erie) – directs that the federal judge should follow state law on the issue if failing to do so would cause litigants to flock to federal court (Hanna v.

Must look to the “conflict of law” or “choice of law”’ rules of the state in which the federal court sits to determine what states law to apply to a dispute a.a. Byrd Court i. RULE 11 i. Stentor Guaranty Trust v. You have to conduct a reasonable amount of research. formed after an inquiry reasonable under the circumstances a. Dunlap Palmer v. Electric 1. Klaxon v. Saltany v. motion. II. Hoffman Sibbach v. (2) Claims with no legal basis . and belief. Ricoh Corp. Grant County i. pleadings. information. Polygraphic Co. you must look to the twin Aims of Eire and not simply if a law is outcome determinative h. and all other documents filed with court) ii. You are in violation of section (1) if your sole or primary purpose is improper i. Kraemer v. or other paper. York Cities Service v. Improper purposes = 1. filing a suit to use the courthouse as a medium for protesting is considered an improper purpose 3. (a) Attorney or record or self-represented party must sign each document filed with the court (complaints. Choice of Law (Which states law apply) i. Reagan 1. motions. (b) By present to the court a pleading. Wilson Stewart v. Harass or cause unnecessary delay or needlessly increase the cost of litigation ii. investigation into the facts of the case prior to filing suit 2. Tompkins Klaxon v. (1) No improper purpose a. Courts are bound to do whatever the choice of law rules dictate Rule Standard of Care Conflict of Laws Statute of Limitations Burden of Proof Burden of Pleading Discovery – Physical Examinations Venue Transfers Agreement to Arbitrate Choice of Law State Law State Law State Law State Law Federal Law Federal Law Federal Law State Law Authority Erie v. Constructing a Lawsuit – Investigation and Inquiry Preceding the Initial Pleading i. If you know that you have no chance of winning a case. an attorney or unrepresentative party is certifying that to the best of the person’s knowledge. Don’t look at York in a vacuum. Barnhardt v.

(3) No evidence supporting claim a. to be sanctioned. Must have a legal basis for the claim that you are making 4. you would have to make a non-frivolous argument for the modification. or reversal of the law i. or parties involved that have violated subdivision (b) 1. Nature of Sanction. USPF 1. Short and plain statement of the grounds upon which the court’s jurisdiction depends . Sua Sponte (Court’s Initiative) – court may enter “show cause order” describing conduct in violation of Rule 11. would have been simple in this case to compare listings with those in phonebook 5. extension. THE INITIAL PLEADING j. Problem not solved within 21 days then a party may file motion for Rule 11 sanctions 2. This section only applies to answers iii. Motion – you must prepare the motion and give notice to the opposite party and they are given 21 days to withdrawal the claim or provide evidence for why it is legitimate. or must argue that discovery would provide you with the evidence necessary to substantiate your claim i. (a) Claims for Relief 1. Money sanctions may not be awarded on the court’s initiative unless the court issues its order to show cause before a voluntary dismissal or settlement of the claims made by or against the party which is. Money damages may not be awarded against a represented party for violation of subdivision (b)(2) b. Inc. v. Business Guides. law firms. Made claim that was clearly in violation of recent Supreme Court ruling a. then party has opportunity to respond to that order a. Chromatic 1. or whose attorneys are. (c) Court may impose sanctions upon attorneys. Limitations a. If you are going to argue in the opposition of current law. How initiated a. III. i. There is no grace period here as in subsection (A) you can still be sanctioned after you correct the problem presented in the show cause order 3. RULE 8 i. Rule: Need to investigate what has been told to you before you place your signature on a claim. (4) Denial of Factual contention must be reasonable a. You must have evidence to support you claim.a. Frantz v. If you are going to deny a claim or allegation it must be reasonable based upon the evidence i.

the party shall state this ( =’s denial) iii. Unsigned opinion after Twombly appears to reinforce Conley standard and hold pro se litigants to an even lower standard of pleading 3. Party shall state n short and plain terms the party’s defenses to each claim asserted and shall admit or deny the averments upon which the adverse parties relies a. Rule 8 establishes a high standard for dismissing a complaint because the courthouse door should not be barred because counsel was not artful in drafting a complaint.2. (b) Defenses. A demand for judgment for the relief the pleader seeks ii. Must cross the line from possibility to possibility to probability ii. Conley v. The pleading must have facts that establish a plausible claim for which relief is based b. Plausibility Test a. 8(c) lists a number of affirmative defenses. (c) Affirmative Defenses 1. Pleading must contain something more than a statement of the facts that merely creates a suspicion of a legally cognizable right of action 1. Twombly i. Form of Denials 1. Atlantic v. Residual clause i. Complaint shall not be dismissed for failure to state a claim unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief 1. Toledo a. Short and plain statement of the claim showing that the pleader is entitled to relief a. Gomez v. Rule 8 requires a short plain statement. Gibson i. enough to give fair notice to defendant ii. Twombly can be read narrowly to only apply to anti-trust cases under the Sherman Act. 1. Affirmative defenses let the defendant off the hook even if they had done the actions alleged 2. yet is not exhaustive a. Any other matter constituting an avoidance or affirmative defense b. or it could be a reform on the entirety of RULE 8. If party is without knowledge or information sufficient to form a belief as to the truth of an averment. Burden of pleading affirmative defenses rests with the defendant . Policy 1. b.

however if you are not sure as to the truth of alternative claims then you may present them to the court. (b) How presented. Each averment of a pleading shall be simple. k. 1. (e) Pleading to be Concise and Directed 1. Inconsistent. If an affirmative defense is not raised in the answer then it is waived iv. If you fail to deny an averment it is assumed to be admitted by the court a. Must plead what the statute requires and place burden on defendant to raise an affirmative defense 1. v. Policy – court does not want the plaintiff to have to plead in opposition of anticipated defenses that might be raised by defendant ii. Defendant shall answer serve an answer a. Party may set forth two or more statements of a claim or defense alternatively or hypothetically a. Rule 9 says that fraud and mistake are the only cases that must be plead with specificity. Exceptions 1. May file a pre-answer motion based on the list provided in RULE 12(b) . If service of summons has be timely waived under RULE 4(d) then within 60 days i. alternative claims cannot be plead if you know one of them is false. Rule 9 i. what. where and why 2. Ingram Case i. Within 20 days after being served with the summons and complaint b. concise. US (employees or agencies) have 60 days 12(a)(3)(AB) 2. when. thus all other cases may be plead generally ii. Letherman a. 1. RESPONDING TO THE COMPLAINT l. If court denies motion or grants motion for more definite statement responsive pleading should come within 10 days of order 12(a)(4)(A) ii. (a) When presented. Rule 12 i. Must respond to each allegation placed against you in the complaint a. or indicated that you are without sufficient knowledge or information to form a belief as to the truth of an allegation (thus denying it) 2. (a) Requires that you plead cases of fraud and mistake with particularity 1. Go through the numbered paragraphs and affirm. deny.i. Who. Averments in a pleading to which no responsive pleading is required or permitted shall be taken as denied or avoided. (b) – (c) it is sufficient to plead conditions of the mind and conditions precedent generally for mistake and fraud cases IV. and direct 2. (d) Effect of Failure to Deny 1.

or insufficiency of service of process are waived if not included in the initial motion or first responsive pleading 2. Automatic Right a. AMENDING THE PLEADINGS **** Second Semester Start m. Rule 15 – Amended and Supplemental Pleadings i. insufficiency of process. File this when client does not meet minimum contacts test c. Leave or Written Consent a. failure to join a party are not waived if not included in the pre-answer motion or the answer. Responses to Amended Pleadings . 12(b)(2) – lack of personal jurisdiction i. File this when there are no set of facts under which plaintiff can recover (Twombly may tweak this) iii. Can be raised at any stage during the course of a case V. May amend later than above with leave of court or written consent from adverse party i. (h) Waiver or Preservation of Certain Defenses 1. File this when there is not a federal question or incomplete diversity b. File this when there is a defect with the papers e. Personal jurisdiction. Cannot be included in a separate 12(b) motion after one has been previous filed. (e) May file a motion for a more definite statement anytime prior to answering complaint and does not have to be consolidated under subsection (g) 1.a. 12(b)(5) – insufficiency of service of process i. must either be raised in answer or future pre-trail pleading 3. the party may amend within 20 days of service of the pleading. lack of subject matter jurisdiction is never waived and there is no consolidation requirement a. 12(b)(3) – improper venue d. 12(b)(6). failure to state a claim and 12(b)(7). 1. Once case goes to trail they are waived b. waived when the complaint is answered iv. improper venue. 12(b)(4) – insufficiency of process i. 2. File this when there is insufficient service of process f. Leave shall be freely given when justice requires 3. Put all 12(b) motions in one big motion v. 12(b)(1) – lack of subject matter jurisdiction i. 12(b)(6) – failure to state a claim on which relief can be granted i. yet must be raised in a pleading pre-trial a. (g) Consolidation of Defenses in Motion 1. (a) Amendments. Party may amend pleading once as a matter of course at anytime before a responsive pleading is served or. 12(b)(1). Must file all the applicable pre-answer motions that are available in a consolidated motion to the court a. if no responsive pleading is required and the action has not been placed on the trial calendar.

a. (c) Relation Back of Amendments --. 3. the action would have been brought against them. Issues not raised in pleadings a. Claim or defense asserted in the amended pleading arose out of the same conduct. Exception: Objecting party must show that failure to include evidence would prejudice the party in maintaining the action or defense on the merits iii. even after judgment. transaction. Adams USA. Failure to amend does not affect the result of the trial on the issues not raised in the pleadings 2. Inc. but for a mistake concerning the identity of the proper party. Permitted by law that provides the Statute of Limitations applicable to the action. Received notice of the institution of the action and will not be prejudiced in maintain a defense on the merits. ii. yet amended complaint alleged sexual harassment. b. Party has time remaining from the filing of the original pleading to respond or 10 days from service. When tried by express or implied consent of the parties. and ii. 1. Procedure can trump substance 1. Nelson v.relates back to original date of pleading when… 1. Knew or should have known that. Court may allow the pleadings to be amended and shall do so freely when the presentation of the merits warrants such amendment i. If the alteration of the original statement is so substantial that it cannot be said that defendant was given adequate notice of the conduct. or occurrence set forth in the original pleading a. Procedural Rules of 15(c) not followed when adding a party to the suit . i. the issues will be treated as if they were raised in the pleadings. ii. to amend the pleadings to conform to the evidence 1.court may order different time period. Facts: Original complaint concerned discrimination in hiring and promotion of women. Changes the name of the party (must satisfy subsection 2) and a. i. City of Flint i. Within 120 days from original service the party to be brought in: i. or 2. then the amendment will not relate back and will be time barred if the limitations period has expired. Barcume v. (b) Amendments to Conform to the Evidence. Objection b/c not in the pleadings a. or occurrence that forms the basis of the claim or defense. Any party may make a motion at any time. transaction. which ever is longer --.

1. and iii. (1) Initial Disclosures: a party must. a. Duty of Disclosure i. Destruction of electronically stored evidence i. unless solely for impeachment i. after receiving report from parties under Rule 26(f) or scheduling conference.Spoliation and Document Retention 1. Name. 2. Agreements parties reach for asserting privileges or for protection of trialpreparation material after production 4. Complete discovery ii. unless solely for impeachment. VI. Rule 16(b) – Pretrial Conferences. (a) Required Disclosures. File motions. may be done by mail. Judge. Does not apply to inaccessible back-up tapes 2. A copy or description of all documents. Destroyed evidence was relevant b. Within 90 days after appearance of defendant and within 120 days after the complaint has been served on the defendant. Once a party anticipates litigation they must place a litigation hold to ensure the preservation of relevant documents. Scheduling. Not to be modified except upon a showing of good cause by the requesting party (must seek leave of court) o. Modifications of the times for disclosures under Rule 26(a) and 26(e)(1) and the extent of discovery permitted 2. address and telephone number of each individual likely to have discoverable information that the disclosing party may use to support its claim or defenses. Dates for pre-trial conferences and trial. Spoliation a. phone. It is not enough to hypothesize that a party knew and nothing would have changed had they been a party to the suit. or appropriate means) 1. Scheduling order may also include: 1. may enter a scheduling order that limits the time: (does not have to be actual meeting. Provisions for disclosure or discovery of electronically stored information 3. Methods to Discover Additional Matter. Management i. Must show possession of evidence and obligation to preserve at the time of destruction ii. without awaiting a discovery request.2. provide the other parties: a.Scope and Privilege n. Sanctions . Join parties and amend pleadings 2. Order shall be issued as soon as possible 1. Zubulake --. identifying the subject of the information b. Discovery --. Rule 26 – General Provisions Governing Discovery. electronically stored information and tangible things that are in the possession of the party and that the disclosing party may use to support its claims or defenses. and 3.

Complete statement of all opinions to be expressed and the basis and reason therefor 2. Cooper Hospital i. and not excused because it has not completed investigation or due to defects or non-produced discovery from the adverse party f. Any exhibits to be used in support or summary for the opinions 4. Disclosures must be made at or within 14 days after the Rule 26(f) conference 2. Facts: Medical Malpractice case for wrongful death ii. Amount of compensation to be paid to witness 7. Any other cases in which the witness has testified within last four years b. At least 90 days before the trail date or the date the case is to be ready for trial . ii. making available all non-privileged documents under Rule 34 from which the computation is based d. address and telephone number of the expert along with: i. Exceptions to Initial Disclosures: Note that subsection (a)(1)(E) contains the exceptions i. Written report prepared and signed by witness: 1. Monetary ii. Time Limits: 1. Timing of Disclosures i. Exclusion of Evidence iii. under which any person carrying on an insurance business may be liable to satisfy all or part of a judgment e. 2.i. Adverse inference jury instruction c. Rule: It is an obligation under Rule 26(a) for defendants to provide plaintiff with the identities and roles of the decedent’s treating physicians so that the case can be decided on the merits. as under Rule 34. Data or other information considered by the witness in forming opinions 3. Computation of damages claimed by disclosing party. (2) Disclosure of Expert Testimony a. Publications authored within last ten years 6. Qualifications of witness 5. Chalick v. Must disclose the name. Any party first served or otherwise joined after the Rule 26(f) conference must make these disclosures within 30 days after being served or joined unless a different time is stipulated by court order. Insurance agreement. Must make disclosures based on the information at the time.

Designation of those witness whose testimony is expected to be presented by deposition and a transcript of the deposition c. Must supplement these in the event that things change 3. 30 days after disclosure of other party. Identification of each document or other exhibit separately identifying those which the party expects to offer and those which will be offered only if a need arises i. Must distinguish those which plan to call and those which will only be called if a the need arises b.1. The test for whether information is discoverable is that it must appear to be reasonably calculated to lead to discovery of admissible evidence a. Name. (1) In General b. (4) Form of Disclosures a. however it was in this case reasonably calculated to lead to admissible evidence and was thus allowed. Realistically evidence of discrimination in promotion would not be allowed at trial. Court may alter the limits on the number of depositions and interrogatories or the length of depositions under Rule 30. c. (b) Discovery Scope and Limits 8. Relevant information need not be admissible at the trail if discovery appears reasonably calculated to lead to the discovery of admissible evidence. Claim was for gender discrimination in hiring practices. . Sullivan & Cromwell i. Parties may obtain discovery regarding any matter. All disclosures under (1) – (3) must be made in writing. (2) Limitations a. b. a party must file the following information regarding the evidence that it may present at trail (unless solely for impeachment) a. (3) Pretrial Disclosures: In addition to the required initial disclosures. if the evidence is solely to be used to rebut or contradict the same subject matter 2. not privileged. A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. Also the number of request may be limited under Rule 36. that is relevant to the claim or defense of any party i. These disclosures must be made at least 30 days before trial 1. 1. Blank v. Objections to these disclosure must be made within 14 days and are waived unless a showing of good cause 4. 5. yet plaintiffs wished to discovery information regarding promotion of women to the rank of partner. signed and served vii. address. and telephone number of each witness i.

or it is obtainable from some other source that is more convenient. Party may only use interrogatories or depose an expert (not expected to be called at trial) only upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain the facts or opinions on the same subject by other means i. less burdensome. importance of the issues at stake in litigation. It is unreasonably cumulative or duplicative. Hickman v. and importance of the proposed discovery in resolving the issues. or less expensive ii. Experts a. (4) Trial Preparation. Taking into account the needs of the case. or legal theories or an attorney (absolute protection) b. The burden or expense of the proposed discovery outweighs the benefit 1. (5) Claims of Privilege . documents. Adverse party may make a motion to compel and party must then show that information is not reasonably accessible due to undue burden and cost ii. court will protect against disclosures of mental impressions. If discovery is order. Court may not allow discovery if it determines that: i. (3) Trial Preparation. conclusions. amount in controversy. May obtain discovery of documents and other tangible things prepared in anticipation of litigation only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party’s case and that the party is unable without undue hardship to obtain the substantial equivalent of the material by other means. Attorney Work Product i. Taylor i. (Essential to the case) i. party’s resources. Materials – Attorney Work Product a. Party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought iii. --.This can happen sua sponte or upon motion. Privilege extends to notes. 6. Court creates the attorney work product privilege in this case protection material prepared in “anticipation of litigation” 7. opinions. Court still may enforce discovery on the showing of good cause by adverse party c. and other materials prepared by or for the party 1. Includes material prepared at the direction of counsel c. Party seeking discovery will bear the costs of both the experts time and may be required to pay other party a fair portion of the fees and expense incurred by retaining the expert 8.i.

a. without presence of strangers. Present the challenged material under seal to the court to determine if the privilege is valid c. Privileges i. the party making the claim may notify any party that received the information of the claim and the basis for it. i. Lower Level employee has needed. or 2. Facts talked about are not privileged. Marital . simply the communication 2. Information Produced. Information withheld. communications or other things not produced 1. UpJohn v. Within the scope of the employees duties iii. Employee has to understand that purpose of communication is for the lawyer to give the company legal advice iv. important information for legal advice ii. or assistance is some legal proceeding. If information is produced that is subject to a claim of privilege or protection as trial-preparation material. allows other party to assess whether the privilege is applicable b. Rarely applies to former employees ii. US i. for the purpose of securing primarily either an opinion of law or legal service. Must claim expressly the privilege or work-product and shall describe the nature of the documents. After notification. Information not otherwise available from higher sources (minority of jurisdictions require this element) c. 1. a party must promptly return or destroy the specified information. Doctor – Patient iii. Corporations? a. Privilege waived if one party subsequently reveals the contents of the privileged conversation to another party b. Previous only those in under the control group test were protected by the A-C privilege b. and if not for the purpose of committing a crime or a tort a. i. Employee must know that the conversation was confidential v. New Rule: A-C privilege extends to: i. Protects communication between attorney and client. Attorney – Client 1.

iv. Must also develop discovery plan and submit to court i. vi. Every disclosure must be signed by an attorney of record. Party is under duty to amend a prior interrogatory. At least 21 days prior to a scheduling conference is due under Rule 16(b) the parties must meet to consider the nature and basis of the claims and defenses and the possibility of settlement a. iii. information. response. Responses and Objections 1. Religious Advisor – Clergy v. Court may make an order for protection as justice requires to protect a party from annoyance. or objection must be signed by an attorney of record and signifies that . Parties may not seek discovery from any source before the parties have conferred as required by Rule 26(f) a. Discovery Requests.ii. and belief.must seek immediately during a deposition (must move the court after attempting to resolve the issue between the adverse party) a. formed after a reasonable inquiry. or undue burden or expense --. v. iv. oppression. embarrassment. or request for admission if party learns that is some material respect the information disclosed is incomplete or incorrect and if the additional or corrective information has not otherwise been made known to the other parties (f) Conference of Parties. Note: long list of things a court may do to protect a party (1) – (8) (d) Timing and Sequence of Discovery 1. the disclosure is complete and correct as of the time it is made 2. Must submit plan to the court with 14 days following the meeting – each attorney needs to do this (g) Signing of Disclosures. Planning for Discovery 1. List in Rule 26(f) about topics that should be discussed and reported on by each party 2. 5th Amendment (c) Protective Orders 1. certifying that to the best of the signer’s knowledge. Unless court order methods of discovery may be used in any sequence (e) Supplementation of Disclosures and Responses 1. production request. Expert discovery must be supplemented if information contained in their report or deposition is in error or incomplete and must be in by Rule 26(a)(3) deadline 2. If party learns that is some material respect the information disclosed is incomplete or incorrect and if the additional or corrective information has not otherwise been made known to the other parties – no duty to correct depositions (see below) b. Party is under a duty to supplement or correct the disclosure or response to include information thereafter acquired if ordered by the court or in the following situations: a. Every discover request.

unless promptly signed when attention is called to the error 3. after discover complete) iv. (e. the party shall state the reason for objection and shall answer to the extent the interrogatory is not objectionable 2. or reasonably calculated to lead to the admission or relevant evidence (rule 26(b)(1)) 2. Must seek a protective order if objection concerns annoyance or embarrassment i. obtainable elsewhere.g. May serve upon any other party written interrogatories not exceeding 25 in number a. Answers are singed by the party and objections signed by the attorney 3. May not be served prior to time specified in Rule 26(d) unless leave of court is granted ii. It is consistent with the rules and warranted by existing law or a good faith argument for the extension modification or reversal of existing law b. Not unreasonable or unduly burdensome or expensive i. (a) Availability. Leave to serve additional interrogatories shall be granted to the extent consistent with Rule 26(b)(2) b. Failure to state a ground for objection is waived unless the party’s failure to object is excused by the court for good cause 5. IX. May relate to any matter that is relevant to a parties claim or defense. If the answer to an interrogatory can be derived from the business records of the party. All other privileges or objections can be made in writing the answers (duplicative. 1. and the burden would be the same for you to discover the . (c) Scope. Court may allow the interrogatory to be answered at a later time. etc. (b) Answers and Objections 1. Each interrogatory shall be answered separately and fully in writing.a. May not object merely because an answer to the interrogatory involves an opinion or contention that relates to fact or the application of law to fact a. Use at Trail 1. Party submitting the interrogatories may move for an order under 37(a) with respect to any objection to or other failure to answer an interrogatory a. Must serve answers and objections within 30 days of service a. THE DISCOVERY TOOLS p. under oath a. Rule 33 – Interrogatories to Parties i. Not interposed for any improper purpose c. Grounds for objection must be stated with specificity a. If one of these three is not signed it will be stricken. A court can sua sponte or upon motion impose sanction against a party that has made an improper disclosure. Varying time lengths may be imposed under court order 4. not relevant or reasonably calculated) iii. (d) Option to Produce Business Records 1. If objected to.

Must deny or object to avoid admittance ii. (b) Procedure 1. including other party. indicating which part the question is denied and which is admitted ii. You have the power to get the document. Any matter admitted under this rule is conclusively established unless the court. Rule 36 – Requests for Admission – can only be used on parties i. (b) Effect of Admission 1. without leave of court. . custody or control i. a. before the time specified in Rule 26(d) a. A party who produces documents for inspection shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the request b. the court will order: a. then you may have the burden to produce it 1. Matter is admitted unless. May be compelled under Rule 45 to produce documents and things a. Unless parties otherwise agree. Allows for the request of non-privileged relevant documents in the possession of the other party ii. When Leave Required 1. A party need not produce the same electronically stored information in more than one form iii. (a) Request For Admission 1. Rule 30 – Depositions Upon Oral Examination i. Party may take deposition of any person. within 30 days after service of the request. you can specify the records where the answer may be derived and afford the party an opportunity to look at and review the documents q. (a) Scope 1. Must use to get the documents and things in possession of witnesses under Rule 45 r. (c) Persons not Parties 1. Applies to things in you possession. (a) When Depositions may be Taken. Do not have the power to compel a friendly witness to provide documents to an adverse party b. other party denies. Must comport with the rules of 26(b)(1) and cannot be served before time allowed in Rule 26(d). Request cannot be made. and c. on motion. a responding party must produce the information in a form or forms in which it is ordinarily maintained or in a form or forms that are reasonably usable.answer yourself. without leave of court except as provided in the next section. permits withdrawal or amendment of the admission s. If the request does not specify the form or forms for producing electronically stored information. Rule 34 – Production of Document i. i. Denials must be specific. There must be a written response within 30 days indicating and stating the reasons for any objections to individual requests 2.

Depositions by Telephone 1. Conducted before an officer appointed or designated under Rule 28 and begin with the officer’s statement a. if person examined is confined in prison or if. Must specify who will be discussing the specific matters of the deposition (who tells what) 7. Deposition Organization. All objections will be noted in the record but the deposition shall proceed i. Party must obtain leave of court. General Requirements. Must give reasonable notice of deposition in writing to every other party in the action a. (c) Examination and Cross-Examination. (b) Notice of Examination. A party seeks to take a deposition before the time specified in Rule 26(d) i.30(b) (6) deposition a. State the method in which the deposition is to be recorded (in notice document) a. without the written stipulation of the parties: a. State time and place of deposition and name and address of each person to be deposed 2. Can be recorded in any method and the party taking the deposition bears the costs 3. Party making the request bears the cost of the additional record measures 4. Corporation may send multiple parties i. Oath. Production of Documents and Things. Record of Examination. May make a Rule 34 request in conjunction with the deposition. Officer shall put the witness under oath a. Must provide notice that person to be deposed is about to leave the US and will be unavailable for examination before trial. Describe with reasonably particularity the matters on which the examination is requested b. With prior notice. Method of Recording. Attendance can be compelled by subpoena as provided in Rule 45 2. which can occur at the taking of the deposition 6. The person to be examined already has been deposed in the case c. May stipulate in writing or court may order upon motion a deposition by telephone or other remote electronic means iii. party may request a different form of recording of the deposition a. ii. This section deals with public or private corporations as deponents .a. Objections 1. Proposed deposition would result in more than 10 depositions begin taken under this rule or Rule 31 b. There is a list in subsection 4 that indicates what the officer’s statement shall include 5. Qualifications of the officer .

Depositions are limited to one day. Relevance. May review and change transcript within 30 days of notice that the transcript is ready i. a. Party or Deponent may make motion to terminate or limit deposition (Rule 26(c)) upon a showing that it is being taken in bad faith and designed to annoy. Parties may be order to pay expenses of other party in either case. etc. May sanction deponent for delays and impediments 4. A person may instruct a deponent not to answer only when necessary to preserve a privilege. Manner of the deposition iii. 1. Must sign a statement providing the reasons for making such changes to the substance of the deposition vi. relevance. Motion to Terminate or Limit Examination 1. Signing 1. Must request prior to the conclusion of the deposition a. The court may award expenses. Fair to give more time ii. An objection to a deponent’s competence – or to the competence. embarrass. i. Unless otherwise stipulated by the court i. including attorney’s fees. to a party that appears for a deposition that does not occur because either: a. (d) Schedule and Duration. to enforce a limitation directed by the court. (g) Failure to Attend or Serve Subpoena 1. b. Conduct of a party. These are waived if: . it may only resume upon court order v. Party taking does not have to attend. or oppress the deponent. Exhibits. or materiality of testimony – is not waived by a failure to make the object before or during the deposition ii. Rule 32(d)(3) – Using Depositions in Court Proceedings i. or to present a motion under Rule 30(d)(4) 2. (A) Objection to Competence. If court terminates the deposition. (f) Certification and Filing by Officer.ii. Evidence presented iv. Copies 1. Changed. t. Deponent delays or impedes the proceedings 3. (e) Review by Witness. or b. The party noticing the deposition does not attend. seven hours a. but must submit questions under seal to the officer who will propound them to the witness 2. The party fails to subpoena a witness and that witness does not appear. (B) Objection to an Error or Irregularity --.Form of Question 1. They will be noted under 32(d)(3) for the record iv. Objections can be made to question form even if the person being deposed is not your client a. or Materiality. The officer must certify that the witness was duly sworn and that the deposition transcript was a true record of the testimony given by the deponent vii.

It relates to the manner of taking the deposition. Must certify motion to compel with a genuine statement that movant has in good faith conferred or attempted to confer with the party failing to make disclosure in an effort to avoid court action b. a party’s conduct. Unless failure to disclose is harmless. (A) Initial disclosures . the oath or affirmation. etc. and Depositions – The same certification as required for initial disclosures is required here as well (discovering party must make the motion here) 3.For a failure to submit discovery required by Rule 26(a). and b. a. a. Rule 37 . Will not impose penalty if court determines that motion was not made with a good faith certification hat parties attempted to work the problem out without court action. Treated as a failure to disclosure 4. or ii. False or Misleading Disclosure. (a) Motion for Order Compelling Disclosure or Discovery 1. Document Request. Answer or Response. within 5 days after being served with it u. Note: Party must give notice to all other parties and persons affect thereby prior to motion to compel 2. including attorneys fees. (3) Evasive or Incomplete Disclosure. (2) Motion. (B) Interrogatories. (c) Failure to Disclose. Reasonable costs and attorneys fees in accordance with the standard laid out above i. the form of an question or answer. any other party may make a motion to compel such discovery and for sanctions i. (4) Expenses and Sanctions.Failure to Make Disclosure or Cooperate in Discovery: Sanctions i. a. Refusal to Admit 1. It is not timely made during the deposition iii. Opposing party’s nondisclosure. (C) Objection to a written question 1. if the question is a recross-question. Non-party motion to compel must be made in the court in the district were discovery is being taken b.a. ii. the party failing to make disclosure is not permitted to use any of the information not disclosure during the course of the proceedings. (A) If motion to compel is granted with regard to disclosure or requested discovery the court shall require the party that created the need for the motion to pay the reasonable expenses incurred in making the motion. (1) Party – motion to compel must be made I the court in which the action is pending a. a. response or objection was substantially justified or that other circumstances make an award of expenses unjust . An objection to the form of a written question under Rule 31 is waived if not served in writing on the party submitting the question with the time for serving responsive questions or.

May make motion for summary judgment at any time after 20 days from the commencement of the action or after service of a motion for summary judgment by the adverse party a. Again attorney’s fees will be award along with other reasonable cost so long as the disobedient party was substantially justified in their actions or other circumstances make an award of expenses unjustified. Celotex – Since the moving party here will have the burden of persuasion at trial. or dismissing the action. (a) Claimant. the burden of production for a summary judgment motion must be accompanied by credible evidence establishing each claim of the actions against the opposing party. ii. Failure to Comply with Order. Celotex – Since moving party will not have the burden or persuasion at trail their burden of production can be met in two ways 1. Order refusing to allow the disobedient party to support or oppose designated claims or defenses --.b. iii. Can move for summary judgment with or without supporting affidavits i. Submit affirmative evidence that negates and essential element of the non-moving parties claim (not done often) 2. Can move with or without supporting affidavits i. May move at any time for summary judgment a. (C) If granted in part and denied in part court may issue protective order as necessary and may appropriate the expenses between the two parties in a just manner. (b) Defending Party. Contempt of court b. Order indicating that matters not disclosed will be established in a favorable manner for the party seeking to obtain discovery c. 1. 1. (B) If motion denied court may enter a protective order of the information under Rule 26(c) and shall impose reasonable expenses. Will not impose sanction if the motion was substantially justified by the moving party or other circumstances make an award of expenses unjust c.prohibiting the introduction of certain evidence d. Rule 56 – Summary Judgment (think of this rule as the table and leg example provided in class) i. Can result in a number of sanctions by the court: a. including attorneys fees to the moving party i. May demonstrate to the court that the nonmoving party’s evidence is insufficient to . v. suspending action until order obeyed. 1. Striking out pleading. or rendering a default judgment i.

2. must set forth specific facts showing that there is a genuine issue of material fact for trial. If the adverse party does not respond. depositions. shall be entered against the adverse party.iii. Has non-moving party put forth enough evidence that a reasonable jury would be able to find for you. answers to interrogatories. Matsushita v. together with affidavits. (56(e)) ii. Zenith Radio Corp. (e) Forms of Affidavits. 1. and admissions on file. a. “When the moving party has carried its burden under Rule 56(c). but the adverse party’s response. its opponent must do more than simply show that there is some metaphysical doubt as to the material facts” 1. The court may also summarily resolve other individual issues as to which there remain no genuine issue of material fact. 1. The judgment sought shall be rendered if the pleadings. Must take all counterevidence as true in favor of the non-moving party ii. Must submit affidavits or other documents allowed in the rule to show that there is a genuine issue of material fact for trial. Further Testimony. v. Their summary judgment motion must be support be credible evidence showing that as a matter of law the opposing party cannot defeat his claim (c) Motion and Proceedings Thereon. show that there is no genuine issue of material fact and that moving party is entitled to judgment at law. The court may enter a summary judgment ruling on the issue of liability alone. When a motion for summary judgment is made and supported as provided by this rule. establish an essential element of the nonmoving party’s claim a. Burden of production will then shift to the adverse party i. if any. summary judgment if appropriate. Non-moving party has the benefit of all reasonable inferences at summary judgment – unreasonable inferences will not be construed in the ∏’s favor (f) When Affidavits are Unavailable. . iv. i. must be plausible that the jury could draw the inference you desire. Evidence must go beyond a mere possibility. an adverse party may not rest upon the mere allegations or denials of their pleadings. by affidavits or otherwise. If the moving party would have the burden of persuasion at trail: 1. vi. 1. Defense Required. b. even though a genuine issue of material facts exists as to damages. (d) Case Not Fully Adjudicated on Motion.

the court may order a continuance to permit affidavits to be obtained of depositions taken or discovery had. (g) Affidavits Made in Bad Faith. Trial. (3) Pretrial Disclosures: In addition to the required initial disclosures. a party must file the following information regarding the evidence that it may present at trail (unless solely for impeachment) 1. including attorneys fees --. the court shall order the party employing them to pay the reasonable expense incurred due to the filing of the affidavit. If the court determines that an affidavits is submitted in bad faith or solely for the purpose of delay. such as dates for motions. Pretrial Orders i. (e) Requires the court to issue a pretrial order memorializing the action taken at any pretrial conference. These disclosures must be made at least 30 days before trial 4. x. 1. Designation of those witness whose testimony is expected to be presented by deposition and a transcript of the deposition 3. In a pre-trial order you will see a bunch of deadlines concerning all matters of the case for trial. etc. You will also see a date for the exchange of pre-trail disclosures.If the adverse party submits affidavits showing that they cannot present facts essential. Once a pretrial order has been entered. At the final pretrial conference. X. by affidavit. Judges and Juries w. to justify the party’s opposition to the motion for summary judgment. The order shall be modified only to prevent manifest injustice 1. it supercedes all pleadings and controls the subsequent course of the case. and telephone number of each witness a. a. jury instructions. Rule 16(d)-(e) – Final Pretrial Conference. This provides non-moving party a fair opportunity to respond if moving party makes motion early on in the discovery process vii. Rule 26(a)(3) i. Name. (d) The court will usually conduct the final pretrial conference after the pretrial narrative statements have been filed and as close to trial as possible. the court will make a schedule for any remaining motions and set a trial date. Identification of each document or other exhibit separately identifying those which the party expects to offer and those which will be offered only if a need arises a. Must distinguish those which plan to call and those which will only be called if a the need arises 2.may be also judged to be in contempt of court 1. An attorney who will conduct the trial or an unrepresentative party must attend the conference with the authority to enter stipulations and make admissions ii. address. Objections to these disclosure must be made within 14 days and are waived unless a showing of good cause .

Limits the appellate court power.The court may permit the parties or their attorneys to conduct the examination of prospective jurors or may itself conduct the examination. Fill stuff in here !!! Right to Trial by Jury xiv. in a case demanding an equitable remedy there was no right to a jury trial and thus legal remedies gave rise to the right of trial by jury (the distinction between law and equity was abolished in 1938 FRCP). Under the historical analogue to this form of action xx. .The court shall seat a jury of not fewer than six person and not more than twelve members and all jurors shall participate in the verdict unless excused from service by the court pursuant to 47(c). Unless the parties stipulate otherwise: x.(a) Examination of Jurors bb. the court shall permit the parties or their attorneys to supplement the examination by such further inquiry as it deems proper os shall itself submit to the prospective jurors such additional questions of the parties or their attorneys. XIII. the right of trial by jury shall be preserved.(b) Preemptory Challenge 21. No verdict shall be taken from a jury reduced in size to fewer than six members xxvi. Selection of Jurors 27. (Never been incorporated under the 14th amendment to apply to states) 15. than according to the rules of the common law. shall be otherwise re-examined in any Court of the United States. Exception: Markman: Supreme Court has said that if an area of law or facts are so complex it was not what the framers of the constitution had in mind when drafting the 7th amendment and therefore too complex for a jury to rule on xxii. Loether 17. Is relief sought more like the traditional relief at common law (damages) of like the damages sought in a court of equity (injunction) xvi. at common law in England. Curtis Test: xix. where the value in controversy shall exceed 20 dollars. Rule 48. Subpoena xii.Traditionally. Therefore. not allowed to re-examine the facts of a case Curtis v. The verdict shall be unanimous y. as it deems proper.XI. Rule 45. In the later event. and no fact tried by a jury. when a statute is silent about a trial by jury you are to look at the remedies provided by the statute and if they enforce legal rights then a trial by jury is warranted (if statute gives express right to jury trial don’t do test) r. 29. Number of Jurors – Participation in Verdict 23. Rule 47. 7th Amendment – Is suits at common law.

3 i. . Entire panel of potential jurors compiled by voter registration (voter registration is used because it is a non-biased way to draw a cross section of society) 2. judge make the decision if the juror is ultimately struck 2. Venire 1. Can Challenge Venire – Not Composition of Jury a. Rule 49. 33. sex. religion. All citizens shall have the opportunity to be considered for service in the district courts of the US. Excusing a juror without providing a reason 1. Voir Dire (jury selection process) i. Edmonson v. Civil litigation still involves state function (judge) and therefore parties may require an articulation of a race neutral explanation for a peremptory strike 2. Challenges: 1. JEB v. The court may for good cause excuse a juror from service during trial or deliberation 28 USC § 1861 – Federal jury selection Act hh.The court shall allow the number of peremptory challenges provided by 28 USC § 1870 --.juries selected at random from a fair cross section of the community in the district or division wherein the court convenes iii. Cause – the juror will not be able to impartially and fairly decided the facts and apply the law (no limit on these) a. If a party does not feel the panel is an accurate representation of the community they can challenge (not typical) ii. national origin. 28 USC 1862: cannot strike on the base of race.(c) Excuse ff. Not automatically struck upon request. and shall have an obligation to serve as jurors when summoned for that purpose (civic obligation) b. Live Voir Dire: rule 47 allows for judges or attorneys to control the proceeding iii. or economic statute ii. Courts typically require potential jurors to submit basic background information (may require more information in serious cases) ii. Peremptory: See Above y. color. Special Verdicts and Interrogatories dd. Alabama: extends the Edmonson rule to strikes based on gender 31. Leesville Concrete 1.

After the close of the evidence a party may a. (b) Instructions – The court 1. may instruct the jury at any time after the trial begins and before the jury is discharged iii. or has been. Objections. Instructions to Jury. 1. A party who objects to an instruction or the failure to give an instruction must do so on the record. A party may. (c) Objections 1. given or refused iv. A party that has been informed of an instruction or action on a request before the jury is instructed and before final arguments objects at the opportunity for objection required by 51(b)(2). With the court’s permission file untimely requests for instructions on any issue ii. Must give the parties an opportunity to object on the record and out of the jury’s hearing to the proposed instructions and actions on requests before the instructions and arguments are delivered. An error in an instruction actually given if that party made a proper objection under Rule 51(c). File requests for instructions on issues that could not reasonably have been anticipated at an earlier time for requests set under above rule. A party has not been informed of an instruction or action on a request before the time for objection provide by 51(b)(2) objects promptly after learning of the instruction or request will be. An objection is timely if: a. Plain Error. or . or b. file and furnish to every other party written requests that the court instruct the jury on the law as set forth in the requests 2. (a) Requests 1. Lets the jury make the ultimate conclusion and then asks a question which would have to be answered in a particular manner in order to reach the specific conclusion z.xxxvi. (b) General Verdicts Accompanied by Answer to Interrogatories: The court may submit to the jury a general verdict and written interrogatories about specific factual issues 1. at the close of evidence or at an earlier reasonable time that the court directs. Takes the jury step by step through the elements of the claim and bulds up to the overall charge (if you answered yes to all previous questions then you must find guilt) – Galic Case a. (d) Assigning Error. stating distinctly the matter objected to and the grounds of the objection 2. Preserving a Claim of Error i. (a) Special Verdicts: The court may require the jury to return special verdicts as to each factual issue. Defense typically like these when the case is extremely complicated ii. instead of a general verdict in favor of one party 1. Rule 51. and b. and 3. Must inform the parties of its proposed instructions and proposed action on the requests before instructing the jury and before final jury arguments 2. A party may assign as error: a.

Have 28 days to file after a jury verdict has been returned a. aa. Galloway v. Judges typically defer ruling here and will wait to after a verdict has been returned to make a rule i. Marley Co. a. Won’t be subject to appellate review if agree with verdict ii. No verdict returned i. or remand to the trial court to determine whether a new trial is warranted. the prevailing party may on appeal assert grounds for a new trial in the event that the court reverses the denial of the motion for judgment after trial. Standard for JMOL – viewing the evidence in a light most favorable to the non-movant. Appellate court has the power to enter judgment as a mater of law or alternatively remand case back to trial level . Court can allow judgment to stand. a prerequisite to a motion for judgment after trial is a 50(a) motion at the close of the record. (d) If the losing party appeals the denial of a motion for Weisgram v. or direct entry of judgment as a matter of law b. and also made a proper objection under Rule 51(c). this is done for judicial efficiency – allows appellate court to rule on JMOL and not have to decide if new trial is warranted since that has been done by the trial judge a. Rule 50. could a reasonable jury find for the non-movant ( jury should not be allowed to make unreasonable inferences) 2. If the appellate court does reverse. Court can order a new trial or direct entry of judgment as a matter of law iii. Judgment after trial. US a. it may order the entry of judgment. order a new trial. (a) Allows the court to take a case away from the jury by entering a judgment if there is not sufficient evidence to raise a genuine factual controversy (looks like directed verdict) 1. If verdict returned: i. JMOL i. order a new trial. the court will make a condition ruling on the motion for a new trial 1. after ∏’s evidence. 1.b. after ∆ ’s evidence. However. (b) The court can enter a judgment that is inconsistent with the jury’s verdict if it determines that the verdict was not supported by the evidence. All motions made prior to verdict being delivered (after opening. Flynn: get something 2. A failure to give an instruction if that party made a proper request under Rule 51(a). after close of evidence) a. (c) If the court grants a motion for judgment as a matter of law after trial and a motion for a new trial was also filed.

however. – “must consider the climate of the contest in which it occurred” Rule 59. Only Remittitur is constitutional in Federal Court b. or where conduct by the court. but the lawsuit is ultimately measured by what is pleaded and proven. unless an express provision regarding cost is made by federal statute or court rule. A judgment must be in writing and must be set forth in a separate document. Instead. free from extraneous materials iv. Costs (a) Definition. In the absence of a federal rule to the contrary. Apply the Goldilocks rule and try to go in the middle. Additur: if the court finds that the verdict was inadequate. vi. 1. Amendment of Judgment . Form: A judgment is any appealable decree of order. In both jury and bench trials. Remittitur: if the court finds that the verdict is excessive. the court may not offer the verdict winner an increase in damages --Dimick v. Wencewicz i. (d) Taxation of Cost: The district court may. (c) Demand for Judgment: The district court generally must grant all the relief to which the prevailing party is entitled. Problem: How to determine the amount that the verdict is reduced. However. counsel. v. Standard for Mistrial: improper questioning by counsel generally entitles the aggrieved party the right to a new trial if such questioning conveys improper information to the jury and prejudices the opposing litigant. award cost to the prevailing party in a lawsuit. is not immediately appealable. the court may offer the verdict winner a reduction of damages in exchange for the court’s denial of a motion for a new trial i. Judgment. Rule 54. ii. the district court may not award relief beyond that sought in the complaint. whether or not such relief was requested in the pleadings. the appeal must generally await the entry of judgment as to all remaining claims and parties. such as where the evidence is either excessive or inadequate. and thus immediately appealable. by expressly determining that not just cause exists to delay the appeal and by directing the entry of judgment. or as to less than all parties is a lawsuit. New Trials. XL. Sanders-El v. in its discretion. or the jury improperly influenced the deliberative process a. Schiedt (additur unconstitutional) c. the district court can make a judgment as to less than all claims or parties final. (b) Judgments Upon Multiple Claims or Involving Multiple Parties: A judgment entered as to less than all claims in a lawsuit. (a) Grounds for Granting New Trial 2. In default judgments. not merely what was demanded. Attacks on Judgments xli. the Supreme court has ruled that attorney’s fees may not be taxed as costs xxxviii. where probative evidence is newly discovered. the court may grant a new trial for any reason which new trials or rehearings were formerly granted.XXXVII. Pleadings serve as guides to the nature of the case. XXXIX.

Relief From Judgment or Order --. the moving party was diligent in discovery – could not have found evidence iii. the evidence is not merely cumulative or impeaching iv. inadvertence. where such conduct was not excepted to during trial. (d) Order of New Trial on Court’s Initiative 1. the moving party possessed a meritorious claim at trial ii. Exception: Where rebuking or reprimanding the attorney will suffice --. order or proceeding for various enumerated reasons a. Other Adversary Misconduct (one year after judgment) i. in light of the new evidence. ii. (3) Fraud. the adverse party engaged in fraud. The district court. unless an additional period not to exceed 20 days is permitted by the court for good cause shown or by stipulated agreement of the parties ix. (a) Clerical Mistakes 1. or other misconduct. The court may grant a new trial entirely on it own initiative. A party may support a motion for a new trial with affidavits. may correct clerical errors in judgments. and errors arising from oversight or omission. surprise. (c) Time for Serving Affidavits 1. may grant a new trial for a reason not stated in the moving papers bb. the objection that opposing counsel was guilty of misconduct in his argument to jury. Curtis Publishing v.Make the repose issue argument here i. A new trial will not be granted where a party seeks to raise for the first time. the adverse party’s conduct prevented the moving party from fully and fairly presenting its case during trial iv. d. the evidence has been newly discovered since trial ii. Misrepresentation. or upon reviewing a party’s motion. new evidence is material. (4) Void Judgment (reasonable time) . and iii. on a motion for new trial.1.Rule 60. on its own initiative or on motion of a party..not the case here vii. or other parts of the record. Opposing affidavits may be filed 10 days thereafter. orders. the district court may grant a motion for relief from a final judgment. a new trial would probably produce a different result c. Butts 1. (1) Mistake. (b) Relief for Other Reasons 1. A party must file a motion for a new trial no later than 10 days after the entry of judgment viii. and v. mis rep. or excusable neglect (one year after entry of judgment) b. In its discretion. (b) Time for Motion 1. (2) Newly Discovered Evidence (one year after entry of judgment) i. Supporting affidavits must be filed with the motion.

Defines a harmless error as one that does not affect the substantial rights of the parties or does not defeat substantial justice. Rule 61. (5) Changed Circumstances (reasonable time) i. very rare cc. In making this evaluation. or iii. Where a prior judgment on which the present judgment is based has been reversed or vacated. (6) Interest of Justice (reasonable time) – catch all. . In any other circumstance where the continued enforcement of the judgment would be inequitable f. court lacked SMJ. the court considers the entire record and applied the harmlessness standard on a case-by-case basis. released. When the judgment is satisfied. Generally. At the core. Harmless Error i. the harmless error inquiry examines whether the trial error affected the outcome of a case to the substantial disadvantage of the losing party. Every reasonable possibility of prejudice need not be disproved. PJ or acted in a manner inconsistent with constitutional due process e. or discharged ii.i. an error will not be discounted as harmless is the court is left with grave doubt at to whether the error had a substantial influence in the ultimate verdict.

Same parties that previously litigated a case lx.if judgment is entered for offeree less than that of the settlement offer.successor in interest (spouse of deceased) 49. 10 days or more before trial a party may serve upon the adverse party an offer for settlement (dollar amount or property) 69. Issue must have been actually litigated in the first judicial proceeding 61.party and nonparty have an agent-principle relationship 52.party otherwise adequately represented the interest of the nonparty liii. Settlement (recall that parties are required to discuss settlement at Rule 26f conference. LXVII. as well as Rule 16 conference) lxviii. Prior litigation in which identical claims were raised.nonparty shares a property interest with the party 51.default will work – not dismissal for lack of PJ or SMJ LV.must really be the identical issue. Final judgment on the merits in the original litigation 54.the issue decided in the first suit must have been decided in a way that is consistent with the judgment in the first suit 65. Settlement and Alternative Dispute Resolution Rule 68. The issue must necessarily have been decided in a case which a final judgment was entered 63.XLII.Arise from same transaction or occurrence tt. offeree will be required to pay cost accrued from time of the settlement offer sss.no default judgment here 64.it is settled that collateral estoppel will not bar litigation of any issue that was not actually raised in a prior proceeding regardless of whether the issue could have been raised lix. not like “could have been raised in res judicata” 58. or at least could have been raised 45. Parties in the second litigation must be identical in some manner to the parties in the original litigation (privity of parties) 48.nonparty controlled party’s litigation in first suit 50.if a jury decides a case without explaining which of two ground is the basis for the verdict. if no communication offer is deemed withdrawn and no evidence of offer is allowed in court (if accepted file with clerk to enter judgment) 70.offeree has 10 days to accept the offer.Claim and Issue Preclusion XLIII. an opposing party retains the right to challenge those same ground if they arise as issues in subsequent litigation LXVI.must have been litigated with some vigor – argued in court (not raised and dismissed in chambers) lxii. Not attorneys fees . Prior litigation in which the identical issue was before the court 57. Res Judicata (Claim preclusion) xliv. Different legal and damage theories are barred by res judicata xlvii. Collateral Estoppel (Issue preclusion) lvi.

Congress expressly says an action is not arbitratable 84. irrevocable.lxxii. End result is a settlement if successful 77. Arbitration – Binding Decision Maker lxxix. Exception: 83. Interstate/Johnson Lane Corp. So long as there is no inherent inconsistency between the policies behind a law and arbitration. ∆ and Mediation) [Organized Settlement] lxxiv. FAA – a written provision in a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract shall be valid. Mediator helps the parties see the strengths and weakness of their case and attempt to get the parties to meet in the middle and settle lxxv. Who pays? 1. cccc.Independent reason that the contract itself in unenforceable a. Offer was for 50 K and judgment for 40 K – offeree to pay cost LXXIII. ex. Truly alternative dispute resolution mechanism. arbitration agreements may typically set the cost between the parties – courts will not enforce an arbitration clause if it would be unfair that the person being a claim would have to pay the cost of litigation – would cost deter bring an action (50/50 split is not ok in the courts eye) 80. Mediation – Third Party Dispute Resolution (∏.Note: that this process is no binding on the parties involved LXXVIII. litigate the case in an alternative forum (parties must agree to arbitrate) Gilmer v. Impasse – situation in which the parties don’t reach a settlement through mediation lxxvi. then arbitration is ok ii. . and enforceable save upon such grounds as exist at law or in equity for the revocation of any contract lxxxii.

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