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-Preclusion—Refers to the extent to which a judgment prevents parties to the action that resulted in the judgment—or other parties—from relitigating claims, defenses, or issues raised in the prior action. -Preclusion Doctrinesee footnote #5 on p.933 -Claim Preclusion (Res Jusicata)the effect of a judgment in foreclosing litigation of a matter that was never litigated -Issue Preclusion (Collateral Estoppel)the effect of a judgment in foreclosing relitigation of a matter that has been litigated and decided **ALWAYS THE STORY OF TWO CASES—case #1 went to judgment and case #2 is pending -does the judgment in case 1 preclude us from us litigating anything in case 2? A. Claim Preclusion -You get one case to vindicate one claim (one bite at the apple) -Prevents the relitigation of claims that have been conclusively resolved b/t the same parties—If you don’t do certain things in the first litigation, you may not have the opportunity to revisit them later -Why CP? —(just, speedy, inexpensive) efficiency, established finality, Elements 1. Same claim that was raised or should have been raised 2. Same Parties—(or those in privity w/them—are the parties synonymous?)—same claimant against the same defendant 3. A valid, final judgment (adjudication) on the merits -Gen Rule=41(b)—every judgment is on the merits, unless its based on jurisdiction, venue, or indispensable parties. ** “Same Claim”—legal theories as the ct has defined 1. Same Claim—based on the “common nucleus of operative fact” (Transactional Test)—(look @ the event that led to the legal action) a. Majority view—same transaction of occurrence b. Minority view—Primary rights=you get a different claim for each right invaded (body and property=2 claims) *Exception—p.936 If π was unable to obtain a certain remedy or form of relief **Could the claim have been brought in the original litigation?...if no, then above exception applies B. Issue Preclusion -Refers to the preclusive effect that prior judicial determinations have on the relitigation of certain issues rather than claims. **Purpose is to protect litigants from the burden of relitigating an identical issue with the same party or privity and promoting judicial efficiency -Issue Preclusion (Collateral Estoppel (narrower)) 1. Same issue was actually litigated and decided in case 1 2. Actually litigated and determined 3. Necessary to the decision (essential to the judgment in case 1) 4. Case 1 ended on a valid final judgment on the merits 5. Same Parties (or privity)
Issue Preclusion…cont 1. Person using offensive non-mutual collateral estoppel could not have joined easily in case 1 4. Does not promote judicial economy 2. you cannot do it! BUT—maybe under non-mutuality -Later began to recognize non-mutuality—(its being used by somebody in case 2 who was not a party in case 1) -*Notealways get a full and fair opportunity to litigate a claim so cannot bring in a new ∆ -Can only be asserted against parties who were in the first and second litigation -*First question=was it the same party in the first and second litigation Offensive. π1 v ∆1 Defensive non-mutual collateral estoppel π1 v ∆2 3. Full chance to litigate in case 1 2. as long as it is fair -Fairness factors: 1. π1 v ∆1 π2 v ∆1 1a. Fairness to the ∆ a.977 c. then preclude the ∆ to that decision (not an issue in Parklane b/c you cant join the SEC) b. $ p. Promotes a “wait and see” attitude—Multiple π’s are effected and offensive would allow π’s to wait to for a favorable decision. Opponent could foresee multiple suits 3. Non-mutual collateral estoppel (π) π1 v ∆1 π2 v ∆1 Defensive non-mutual collateral estoppel (∆) π1 v ∆1 π1 v ∆2 -Arguments against Offensive 1. *Look for whether there is anything that would make it unfair to assert to ∆ -Most often defensive non-mutual collateral estoppel is ok **The party against whom estoppel is being asserted has to have a fair chance at a trial. π1 v ∆1 Offensive non-mutual collateral estoppel π2 v ∆1 2. π1 v ∆1 π does have the ability to assert collateral estoppel if it is fair to the ∆ π2 v ∆1 *everybody gets one full and fair opportunity to litigate *not mandated to join a litigation (unless indispensible party) *have to know on what basis the decision was made **Offensive non-mutual collateral estoppel is left to the discretion of the trial judge Parklane Hosiery -Non-mutual offensive is ok. There are no inconsistent judgments 2 .-Mutuality—can only be used by somebody who was a party to case 1—same parties bound by the previous litigation**under mutuality.
20. -Policy Reasons (seem to be π oriented) -Judicial Efficiency -Shows patterns of bad conduct -Limits the potential of inconsistent judgments—conduct -“Negative Value claims”—not worth the $30 to sue Netflix (individually small amounts can add up on a large scale) -CAFA (Class Action Fairness Act of 2005) -Makes it easier for class action suits to be filed/moved to federal court -One of the lobbies was business and tort reformists -Wanted access to the federal court because π’s would seek the friendly state (avoid forum shopping) -Increased review of “coupon settlements” where the attorney’s get huge fee’s.23. but there can be a class of ∆’s as well. 24 -Joinder of claimsFRCP Rules 18. but each individual’s amount is relatively small *In Class Actions.19. -Generally think of class actions as people joined as π’s. only one ∆ needs to seek removal and it doesn’t matter if one of the ∆’s is from the same state -FRCP Rule 23(a)***MUST PASS THIS FIRST Must pass each of the following: Numeracy—so numerous that joinder of all is impossible Commonality—questions of law or fact that are common to the all of the class Typicality—claims/defenses of the representative parties are typical to the class Adequate Representation—to the representation of all the class o Competent Attorney o Representative of class (no conflict) -FRCP Rule 23(b) Need only pass one of the following: 23(b)(1)-o 23(b)(1)(A)—Incompatible Standards Class (differing conduct) o 23(b)(1)(B)—The Limited Fund Class 23(b)(2)—The Injunctive Relief Class 23(b)(3)—The Damages Class o common questions predominate over individual questions o class action is the superior way to resolve the case o Rep has to provide individual notice **In an injunctive class action you don’t get to opt out **Issue and claim preclusion come into play -§ 1332 (d)—special for class actions -Amt in Cont = $5mill -@ Least 100ppl 3 .Class Actions -Joinder of partiesFRCP Rules 14.
the court may order discovery of any matter relevant to the subject matter involved in the action. condition. Unless otherwise limited by court order. less burdensome. Limitations a. Trade Secret—45 (c)(3)(B) e. Google i. considering the needs of the case. Relevance—26 (b)(1): ii. Rule 45 is the basis for non-parties—must get a subpoena b. For good cause. i. *There is a requirement in Rule 26 that you “meet and confer” with the requesting party and make a “good faith effort” to resolve the dispute w/o ct action d. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. nature. Relevance: 26 (b) Scope and Limitation -non-privileged -Relevant a. the amount in controversy. All discovery is subject to the limitations imposed by Rule 26(b)(2)(C). *must be relevant to claims and defenses iii. custody. Undue Burden—26(b)(2)(C) iii. FRCP 26 (b)(1): Discovery scope and limits: Scope in General (1) Scope in General. FRCP 26 (c) i. the parties' resources. (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action. and the importance of the discovery in resolving the issues. FRCP 26(b)(2)(C): Discovery Scope and Limits: When Required (C) When Required. or (iii) the burden or expense of the proposed discovery outweighs its likely benefit. The Scope of Discovery(Broad) 1. the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter (limitation) that is relevant (limitation) to any party's claim or defense--including the existence.Discovery -Discovery—the process of compelled information exchange that occurs among the parties before trial A. the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that: (i) the discovery sought is unreasonably cumulative or duplicative. the importance of the issues at stake in the action. Relevant to the subject matter of the dispute? 2. On motion or on its own. Limitations—“nonprivlidged” and “relevant” ii. or less expensive. and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. or can be obtained from some other source that is more convenient. -Enables the ct to limit discovery if the ct finds that the discovery is too burdensome in relation to its utility in the litigation c. B. Discovery Devices (Tools) Request to produce Interrogatories Depositions Medical exam Request for admission Rule 16 Scheduling conference 5 . description.
and Tangible Things: In General (a) In General. and 6 . custody. if necessary. a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms*** **on receipt. abstracting. Initial Disclosures a. without awaiting a discovery request. FRCP 26(a)(1) Duty to Disclose:**Mandatory Discovery (a) Required Disclosures. unless the use would be solely for impeachment. images. graphs. the responding party may answer by: (1) specifying the records that must be reviewed. unless privileged or protected from disclosure. ESI. but have to subopena 3. custody. compiling. including materials bearing on the nature and extent of injuries suffered. and other data or data compilations--stored in any medium from which information can be obtained either directly or. provide to the other parties: (i) the name and. and if the burden of deriving or ascertaining the answer will be substantially the same for either party. or control and may use to support its claims or defenses. unless the use would be solely for impeachment. and Things (Requests to Produce) a. sound recordings. FRCP 34(a) Producing Documents. in sufficient detail to enable the interrogating party to locate and identify them as readily as the responding party could.Rule 26(f) Rule 26(g)—Rule 11 of Discovery 1. after translation by the responding party into a reasonably usable form. FRCP 33(d) Interrogatories to Parties: Option to Produce Business Records (d) Option to Produce Business Records. or b. charts. or summarizing a party's business records (including electronically stored information). if known. any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment. auditing. FRCP 34 (b)(2)(E)(ii) Producing Documents. electronically stored information. drawings. 34(c)—can get form a nonparty. a party must. Interrogatories—written questions that the receiving party must answer under oath a. the address and telephone number of each individual likely to have discoverable information--along with the subjects of that information--that the disclosing party may use to support its claims or defenses. or sample the following items in the responding party's possession. -Requires the parties to disclose certain info on the other at the beginig of the action w/o awaiting specific requests for the material 2. If the answer to an interrogatory may be determined by examining. or (B) any designated tangible things. test. (iii) a computation of each category of damages claimed by the disclosing party--who must also make available for inspection and copying as under Rule 34 the documents or other evidentiary material. ESI. or control: (A) any designated documents or electronically stored information--including writings. and tangible things that the disclosing party has in its possession. copy. (A) In General. Production of Documents. and Tangible Things: Procedure (ii) If a request does not specify a form for producing electronically stored information. on which each computation is based. ESI. (1) Initial Disclosure. A party may serve on any other party a request within the scope of Rule 26(b): (1) to produce and permit the requesting party or its representative to inspect. (ii) a copy--or a description by category and location--of all documents. photographs. and (iv) for inspection and copying as under Rule 34. parties must produce or object c. Except as exempted by Rule 26(a)(1)(B) or as otherwise stipulated or ordered by the court.
(B) To Compel a Discovery Response. any other party may move to compel disclosure and for appropriate sanctions. compilations. abstracts. FRCP 30 Depositions by Oral Examination b.*** Rule 37 Motion to compel (3) Specific Motions. Oral Depositions—Questions under oath of any person thought to have testimony relevant to their dispute a. (1) In General. (iii) a party fails to answer an interrogatory submitted under Rule 33. A party seeking discovery may move for an order compelling an answer. FRCP 37 Failure to Make Disclosures or to Cooperate in Discovery: Sanctions (a) Motion for an Order Compelling Disclosure or Discovery. (2) Motion and Notice. designation. On notice to other parties and all affected persons. (A) To Compel Disclosure. The order: (A) may be made only on motion for good cause and on notice to all parties and the person to be examined. and -Only for “good cause” -Only for a party or custody or legal control of a party (children) -Must get a court order 6. This motion may be made if: (i) a deponent fails to answer a question asked under Rule 30 or 31. or summaries. Any person. FRCP 36 -Can only be sent to a party -require to admit or deny any discoverable matter (if fail to deny. a party may move for an order compelling disclosure or discovery. 7 hrs d. (a) Order for an Examination. or (iv) a party fails to respond that inspection will be permitted--or fails to permit inspection--as requested under Rule 34. Contents of the Order. The court has the same authority to order a party to produce for examination a person who is in its custody or under its legal control. Physical or medical Examination a. If a party fails to make a disclosure required by Rule 26(a). *Not an option for nonparties -Usually limited to 25 unless otherwise granted by the ct 4. including a party or nonparty (a nonparty should be subpoenaed) c. Limited to one day. The court where the action is pending may order a party whose mental or physical condition--including blood group--is in controversy to submit to a physical or mental examination by a suitably licensed or certified examiner. The motion must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action. -If disregard the court order—you can get Rule 37 (b) sanctions 7 . Discovery Offenses and Sanctions -Sanctions: a. you have admitted) 7. (ii) a corporation or other entity fails to make a designation under Rule 30(b)(6) or 31(a)(4). production. Do you have to answer?—see (c) 5. or inspection. FRCP 35 Physical or medical Examination b.(2) giving the interrogating party a reasonable opportunity to examine and audit the records and to make copies. (1) In General. Request for Admission a.
so not privileged “What did you say to the attorney?”—Privileged “Were you driving on South Street on December 22. the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion of law or (ii) legal services or (iii) assistance in some legal proceeding and (d) not for the purpose of committing a crime or tort. Litigants are responsible for their own expenses. Privilege…. Attorney-Client confidentiality/Privilege—not permitted in discovery a.**p. Work Product Privilege 26(b)(3)—material prepared in anticipation for litigation—protected from discovery 8 . oppression. or limiting the scope of disclosure or discovery to certain matters. or his or her subordinate. embarrassment. or undue burden or expense. A party or any person from whom discovery is sought may move for a protective order in the court where the action is pending--or as an alternative on matters relating to a deposition. 8. including the costs of producing info in response to discovery requests b. On motion to compel discovery or for a protective order. c. for good cause. including one or more of the following: (A) forbidding the disclosure or discovery.-Sanctions can be difficult to get **American Rule. and (b) in connection with this communication is acting as a lawyer. in the court for the district where the deposition will be taken. Limitations -Limits on Electronic Discovery (or ESI)Undue Burden and Costs a. 9. Elements of Attorney Client Privilege the asserted holder of the priv. The court may. the court may nonetheless order discovery from such sources if the requesting party shows good cause. Confidentiality=Broad—A lawyer shall not reveal information relating to the representation of a client i. is or sought to become a client the person to whom the communication was made (a) is a member of the bar of a court. FRCP 26 (C) Protective Orders (c) Protective Orders.*** (D) forbidding inquiry into certain matters.653 (Client owns the privilege) i.. 2002?”—Just asking for factual info “Did your attorney tell you to contact the police?”—Privileged 10. and the privilege has been (a) claimed and (b) not waived by a client. b. Examples: “Did you ever contact an attorney about the accident?”—Factual. **Confidentiality is relieved if you get a court order b. Rule 26 (b) (2) (B) (B) Specific Limitations on Electronically Stored Information. The motion must include a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action. the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. The court may specify conditions for the discovery. (1) In General. 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. considering the limitations of Rule 26(b)(2)(C). issue an order to protect a party or person from annoyance. If that showing is made.
Can never get mental impressions. Can get passed WPD if show (1) substantial need and (2) info is not otherwise available d.a. Upjohn***p.654—TEST i. Communications concerned matters w/in the scope of employees duties iv. *simply work product—does not have to be an attorney 9 . Experts—26(a)(2) and 26(b)(4) c. Purpose was to provide basis for legal advice iii. opinions and legal theories e. Conversation made to secure legal advice ii. Communications were considered confidential b. conclusions.
(1) By the Plaintiff. B. and (3) whether the π had a meritorious defense. (A) Without a Court Order.1(c). don’t jump on this b/c ct prefers a final judgment on the merits. then judge can make judgment. If the party against whom a default judgment is sought has appeared personally or by a representative. If the plaintiff's claim is for a sum certain or a sum that can be made certain by computation (ex. you can file default. But. If a defendant has pleaded a counterclaim before being served with the plaintiff's motion to dismiss. then they must be served notice) (c) Setting Aside a Default or a Default Judgment. (B) Effect. what is demanded in the pleadings. a notice of dismissal operates as an adjudication on the merits. 23.2. Every other final judgment should grant the relief to which each party is entitled. Default Judgment (a) Entering a Default. (Must get “a” first!) (1) By the Clerk. Subject to Rules 23(e). the party must apply to the court for a default judgment. Involuntary & Voluntary Dismissals a. contract. that party or its representative must be served with written notice of the application at least 7 days before the hearing. The court may set aside an entry of default for good cause**((1) whether the default was willful or the result of the ∆’s culpable conduct. d. property damage). (“we live to fight another day”—eg. Remember that a failure to answer serves as an admission. with an affidavit showing the amount due--must enter judgment for that amount and costs against a defendant who has been defaulted for not appearing and who is neither a minor nor an incompetent person. (2) whether the set-aside will prejudice the π. conservator. the clerk--on the plaintiff's request. (2) By the Court. (one bite at the apple) (2) By Court Order. the dismissal is without prejudice. In all other cases.741) b. Unless the notice or stipulation states otherwise. A default judgment must not differ in kind from. (b) Entering a Default Judgment. A default judgment may be entered against a minor or incompetent person only if represented by a general guardian. P.***(if no appearance. (Failed to plead or otherwise defend-12(b)—usually 21 days. and that failure is shown by affidavit or otherwise. or (ii) a stipulation of dismissal signed by all parties who have appeared. or overseas 90)—after this. But if the plaintiff previously dismissed any federal. FRCP 55: Default. Relief to Be Granted. FRCP 41:Dismissal of Actions (a) Voluntary Dismissal.Disposition Without Trial A. FRCP 54(c) (c) Demand for Judgment. or other like fiduciary who has appeared. *2 Step process—have to get through “a” before you get through “b” c. When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend. 23. (Involuntary). on terms that the court considers proper. or exceed in amount. but if waved 60. Effect.or state-court action based on or including the same claim. the plaintiff may dismiss an action without a court order by filing: (i) a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment. an action may be dismissed at the plaintiff's request only by court order. and 66 and any applicable federal statute. but if appears or representative appears. Twombly dismissed to gather sufficient facts and submit another complaint). Except as provided in Rule 41(a)(1). Default and Default Judgment a. back pay. the action may be dismissed over the defendant's objection only if the counterclaim can remain pending for 10 . even if the party has not demanded that relief in its pleadings. the clerk must enter the party's default.
(c) Dismissing a Counterclaim. a dismissal under this subdivision (b) and any dismissal not under this rule (ex. and ruling in advance on the admissibility of evidence. and limiting the use of testimony under Federal Rule of Evidence 702. including orders affecting disclosures and discovery under Rule 26 and Rules 29 through 37. Worried that case will be dismissed or there is a valid defense. A claimant's voluntary dismissal under Rule 41(a)(1)(A)(i) must be made: (1) before a responsive pleading is served. a defendant may move to dismiss the action or any claim against it. or third-party claim. Unless the dismissal order states otherwise. ii. If the plaintiff fails to prosecute or to comply with these rules or a court order. If appropriate. the court may require that a party or its representative be present or reasonably available by other means to consider possible settlement. (B) amending the pleadings if necessary or desirable. a dismissal under this paragraph (2) is without prejudice. Rule 41(2)(b) C. Effect. crossclaim. Involuntary a. or Third-Party Claim. or failure to join a party under Rule 19--operates as an adjudication on the merits. At any pretrial conference. (2) Matters for Consideration.—ADR 11 . (C) obtaining admissions and stipulations about facts and documents to avoid unnecessary proof. (F) controlling and scheduling discovery. If a plaintiff who previously dismissed an action in any court files an action based on or including the same claim against the same defendant. FRCP 16(c) (c) Attendance and Matters for Consideration at a Pretrial Conference. Why? i. (I) **Settlement settling the case and using special procedures to assist in resolving the dispute when authorized by statute or local rule. Think about counterclaims and SMJ b. and (2) may stay the proceedings until the plaintiff has complied. or (2) if there is no responsive pleading. (H) referring matters to a magistrate judge or a master. and eliminating frivolous claims or defenses.12(b)(6))--except one for lack of jurisdiction. b. Unless the order states otherwise. Case Management/Settlement a. This rule applies to a dismissal of any counterclaim. the court may consider and take appropriate action on the following matters: (A) formulating and simplifying the issues. A represented party must authorize at least one of its attorneys to make stipulations and admissions about all matters that can reasonably be anticipated for discussion at a pretrial conference. Cost of litigation iii.independent adjudication. (b) Involuntary Dismissal. (1) Attendance. the court: (1) may order the plaintiff to pay all or part of the costs of that previous action. (E) determining the appropriateness and timing of summary adjudication under Rule 56. scheduling the filing and exchange of any pretrial briefs. improper venue. Voluntary a. (G) identifying witnesses and documents. (d) Costs of a Previously Dismissed Action. and setting dates for further conferences and for trial. before evidence is introduced at a hearing or trial. (D) avoiding unnecessary proof and cumulative evidence. New legislation iv. Settlement c. Crossclaim.
c. Demonstrate that moving party’s evidence is sufficient to establish and essential element of the claim -Principle purpose of SJ is to isolate and dispose of factually unsupported claims or defenses. and inexpensive disposition of the action. but it does not preclude a later offer. if a party or its attorney: (A) fails to appear at a scheduling or other pretrial conference. Submit evidence that negates an essential elements of nonmoving party’s case 2. b. Summary Judgment FRCP 56 (Is there a genuine issue of material fact in dispute? If not. a. If. FRCP 16(f)Sanctions (1) In General. (not used often) Diff then settlement b/c you are admitting to liability and move on. speedy. with the costs then accrued. On motion or on its own. the court must order the party. a. either party may then file the offer and notice of acceptance. the opposing party serves written notice accepting the offer. (N) ordering the presentation of evidence early in the trial on a manageable issue that might. (M) ordering a separate trial under Rule 42(b) of a claim. Nothing discourages judges from encouraging settlement. (c) Offer After Liability is Determined. be the basis for a judgment as a matter of law under Rule 50(a) or a judgment on partial findings under Rule 52(c). D. difficult legal questions. (B) is substantially unprepared to participate--or does not participate in good faith--in the conference. and (P) facilitating in other ways the just.b. the offeree must pay the costs incurred after the offer was made. it promotes it FRCP 68: Offer of Judgment (a) Making an Offer. on the evidence. It must be served within a reasonable time--but at least 14 days--before the date set for a hearing to determine the extent of liability. (2) Imposing Fees and Costs. including those authorized by Rule 37(b)(2)(A)(ii)-(vii). or both to pay the reasonable expenses--including attorney's fees--incurred because of any noncompliance with this rule. Instead of or in addition to any other sanction. When one party's liability to another has been determined but the extent of liability remains to be determined by further proceedings. (O) establishing a reasonable limit on the time allowed to present evidence. If the judgment that the offeree finally obtains is not more favorable than the unaccepted offer. the court may issue any just orders. An unaccepted offer is considered withdrawn. within 14 days after being served. the party held liable may make an offer of judgment. (d) Paying Costs After an Unaccepted Offer. unless the noncompliance was substantially justified or other circumstances make an award of expenses unjust. (J) determining the form and content of the pretrial order. counterclaim. c. FRCP Rule 56:Summary Judgment 12 . in fact. its attorney. or unusual proof problems. multiple parties. The clerk must then enter judgment. crossclaim. (b) Unaccepted Offer. Evidence of an unaccepted offer is not admissible except in a proceeding to determine costs. or (C) fails to obey a scheduling or other pretrial order. plus proof of service. (K) disposing of pending motions. Judgment on an Accepted Offer. then no reason for a jury trial and we can make a judgment now) -Standard—All inferences made in favor of the nonmoving party—no credibility determinations and no weighing of evidence -Ways to get SJ 1. third-party claim. a party defending against a claim may serve on an opposing party an offer to allow judgment on specified terms. or particular issue. At least 14 days before the date set for trial. (L) adopting special procedures for managing potentially difficult or protracted actions that may involve complex issues.
h. Motion to Dismiss for Failure to State a Claim 12(b)(6) -Ct cannot look @ evidence -Look only @ the face of the complaint -If everything the π said were true. identifying each claim or defense--or the part of each claim or defense--on which summary judgment is sought. a party may file a motion for summary judgment at any time until 30 days after the close of all discovery. then it makes no sense to go forward 13 . then a trial is pointless. (b) Time to File a Motion. (1) Supporting Factual Positions. The main purpose of a trial is to resolve facts—if there is no genuine dispute as to material facts. i. A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence. or (3) consider summary judgment on its own after identifying for the parties material facts that may not be genuinely in dispute. or other materials. The court should state on the record the reasons for granting or denying the motion. the court may: (1) give an opportunity to properly support or address the fact. then there is no SJ Doesn’t make clear—type of showing FRCP 56(e) (e) Failing to Properly Support or Address a Fact. or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute. d. Celotex—we can grant SJ even if the ∆ does not provide evidence—a ∆ can move for SJ by showing that the π lacks evidence E. The court shall grant summary judgment if the movant shows that (1) there is no genuine dispute as to any material fact and (2) the movant is entitled to judgment as a matter of law. the court may: (1) grant summary judgment for a nonmovant.b. c. f. A party may move for summary judgment. interrogatory answers. (c) Procedures. or that an adverse party cannot produce admissible evidence to support the fact. e. If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c). admissions. g. including depositions. (a) Motion for Summary Judgment or Partial Summary Judgment. (3) grant summary judgment if the motion and supporting materials--including the facts considered undisputed--show that the movant is entitled to it. (2) Objection That a Fact Is Not Supported by Admissible Evidence. (2) grant the motion on grounds not raised by a party. electronically stored information. Responding party has the burden of showing that there is no genuine dispute as to material fact Viewed in a light most favorable to the opposing party No credibility determinations No weighing of evidence **If there is he said/she said. or (4) issue any other appropriate order. documents. (f) Judgment Independent of the Motion. stipulations (including those made for purposes of the motion only). (2) consider the fact undisputed for purposes of the motion. After giving notice and a reasonable time to respond. would she win? -if no. Unless a different time is set by local rule or the court orders otherwise. A party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record. affidavits or declarations.
If the court does not grant a motion for judgment as a matter of law made under Rule 50(a). No later than 28 days after the entry of judgment--or if the motion addresses a jury issue not decided by a verdict. or not made. either party can move for JMOL -If motion is rejected. The motion must specify the judgment sought and the law and facts that entitle the movant to the judgment. or (3) direct the entry of judgment as a matter of law. if the jury returned a verdict. but it happens after the jury has reached a conclusion that reasonable people could not have reached -Must be made w/in 28 days after the entry of judgment -Must have moved for JMOL @ a proper time at trial 14 . they can move for JMOL F. Alternative Motion for a New Trial. (2) order a new trial. can be maintained or defeated only with a favorable finding on that issue. the court is considered to have submitted the action to the jury subject to the court's later deciding the legal questions raised by the motion. the court may: (1) allow judgment on the verdict. ∆ can make their case. A motion for judgment as a matter of law may be made at any time before the case is submitted to the jury. (2) Motion. In ruling on the renewed motion. the court may: (A) resolve the issue against the party. FRCP 50(b): JMOL in a Jury Trial—(7th amendment) RENEWED JMOL (b) Renewing the Motion After Trial. not fact) -Judge takes the case away from the jury b/c reasonable people could not disagree on the result (so clear that it could only come out one way) -Must be a motion by the parties—ct cannot grant it on its own (sua sponte) -can only make motion after the other party has been heard at trial -Standard—Court should take evidence as a whole and ct should give credence to the evidence favoring the nonmoving party) -Either party is permitted to seek JOML if they believe their adversary has failed to present sufficient evidence to meet its burden of proof a. b. -Once the ∆ rests. If a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue.-Under Twikbal—the π must allege facts supporting a plausible claim. and (B) grant a motion for judgment as a matter of law against the party on a claim or defense that. and its up to the judges common sense and experience to make a decision *** Phases of trial -Trial is to resolve disputes of fact -Opening statement—jury cant rely on it. FRCP 50(a): JMOL in a Jury Trial (a) Judgment as a Matter of Law. -π presents their case -∆ can cross-examine -π can reexamine -Either party can Object -Once there case is presented. no later than 28 days after the jury was discharged--the movant may file a renewed motion for judgment as a matter of law and may include an alternative or joint request for a new trial under Rule 59. under the controlling law. -Standard is exactly the same. (1) In General. Judgment as a Matter of Law (Directed Verdict) (Is there a legally sufficient evidentiary basis for a finding in favor of the party—question of law.
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