Civil Procedure Outline

Introduction

Notice Flowchart. (if yes, notice is efficient; if no, move on).o 1. Was adequate notice given to the defendant? Includes:

(1) adequate information. (2) timeliness. (3) method: was the most reasonable means of notice employed?

Civil Action.o Steps of a Civil Action.

Pleadings. Complaint. First step. States the plaintiff’s claims against the

defendant. It must recite the basis of the court’s subject matter and personal jurisdiction over the action. Assigned a number.

Service of summons and complaint. Default. Answer and counterclaim.

Answer. Replier. Must either admit the allegation, deny the allegation, or state that the defendant lacks sufficient knowledge to admit or deny.

Joinder issues. Answers to counterclaims, cross-claims, third-party claims (if any). Mandatory initial discovery exchange. Scheduling order. Amendments to pleadings. A party may amend a pleading once within 21

days of serving it. Motion to dismiss. Demurer. 12.b.6 Motion. Even if the plaintiff’s claim is

true, (usually) the court lack so jurisdiction or the law does not provide relief for the claim.

Motion claiming that the court lacks jurisdiction. Can be made at any time and cannot be waived by any action of the defendant or the plaintiff.

Interrogatories. Depositions. Requests for admissions and production of documents. Discovery sanctions.

Discovery. The chief expense and time-consumption of litigation. Threshold standard for scope of discovery. Any non-privileged

matter that is relevant to any party’s claim or defense. Devices for discovery. Depositions, interrogatories, requests for

admission, inspection and production of documents. Initial conference. 26f Conference. The court will order volume

and time limits for discovery.

Various non-dispositive motions. Motion for summary judgment. Ends the litigation before trial when

there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. This may happen when both parties agree on the fact of the matter and there is no genuine dispute, or when the plaintiff was unable to generate any evidence that would be admissible at trial.

Pretrial order. Judgment as a matter of law. Proposed findings of fact and conclusions of law/jury instructions. Verdict. Judgement order. Post-trial motions. Notice of appeal. Preclusion doctrine.

Claim Preclusion. A plaintiff who has made a claim in litigation and had judgment entered against her cannot bring the same claim again.

Issue Preclusion. Affects a single issue in a case rather than the entire claim. When an issue has been fully litigated and a party has lost on that issue, the losing party cannot re-litigate the same issue against the same or an analogously situated party in later litigation.

o Court Hierarchy. Court of first instance. Trial court. Aka Supreme court, district court,

county court, etc. Deals with facts and legal questions. Intermediate appellate court. Deals with law and legal questions. Decides

whether or not the trial judge erred in some legal matter. Court of last resort. Supreme Court. Also sometimes Court of Appeals.

o Civil Law vs. Common Law. Court decisions in civil law do not set precedent, but common law opinions do, as far as jurisdiction allows.

Common Law procedure. Start with a statute. See how it has been historically viewed and interpreted in judicial opinions and context. Apply it to the facts. Make a decision.

Civil law procedure. Start with a statute. Apply it to the facts. Make a decision.

Subject Matter Jurisdiction.

Flowchart (if yes, SMJ; if no, move on). Can a claim be heard in federal court?o 1. Is there original jurisdiction over the claim by the plaintiff?

1a. Diversity jurisdiction. Complete diversity (state v state, state v alien, alien v state).

Citizenship for corporations is based on incorporation and

principal place of business. Partnerships have citizenship wherever the partners are citizens. Legal representatives are citizens of the states they represent.

More than $75,000 in controversy? Punitive and compensatory damages included, but not costs and fees and interest. Aggregate of plaintiffs if only one defendant or joint and severally liable defendants.

1b. Federal Question jurisdiction. Is the claim created by or brought under federal law? Is the claim substantial enough for the federal courts to have a

great interest in answering it? Is the federal question on the face of the claim or tangential to it?

o 2. Does the claim qualify for supplemental jurisdiction, under 28 USC 1367? 2a. Is the claim brought with another claim that could be originally

brought into federal court? Note: does not apply to diversity claims.

2b. Do the two claims (federal and state) arise from the same common nucleus of operative fact?

2c. Should the federal court, as a matter of discretion, accept the claim?o 3. If the case has already been filed in state court, can the defendant remove to

federal court? 3a. Would the federal court have had original jurisdiction? 3b. Have 30 days passed since defendant was served with notice? 3c. If the case can only be brought to federal court based on diversity, the

defendant cannot remove to federal court in a state where the case was brought.

3d. Have all defendants agreed to remove to federal court?o 4. Can the plaintiff remand to state court if removal is successful? Has the

plaintiff filed within 30 days of the filing of the notice of removal? Subject Matter Jurisdiction Overview.

o Definition. The court’s power over the particular kind of case. Cannot be waived like personal jurisdiction.

General jurisdiction. State courts. With few exceptions, some court within each state’s system has subject matter jurisdiction over any particular action. Exceptions include federal subject matter, like patents.

Limited jurisdiction. Federal courts. They have subject matter jurisdiction over only such matters as the federal constitution and Congress have given them.

28 USC 1331. Federal questions. 28 USC 1332. Diversity of citizenship. 28 USC 1367. Supplemental jurisdiction.

o Types of material. Constitutional provisions. Federal statutes with broad language.

Key Supreme Court cases. What the constitutional provisions mean in the context of civil litigation.

Statutes. Based on policy goals. The judicial system interprets these statutes in context. Judges cannot change the words of a statute, only its interpretation. Expanded by judicial opinion; a statute alone does not answer an issue usually, it must be seen in interpretive context.

Furthering a statute. Judicial interpretations further the meaning of a policy, rather than diminish it.

Federal Question Jurisdictiono Rules.

Article III. 28 USC 1331.

o Flowchart: How to Get into Federal Court with a State Claim that Has an Embedded Federal Issue.

Does a federal law create a private right of action? Yes. You’re in! No. Is it contested?

o Yes. Is it substantial? Yes. Would allowing federal courts to exercise

jurisdiction over these claims upset federalism to a great enough extent?

No. You’re in!o Definitions.

Exclusive Federal Jurisdiction. Bankruptcy Proceedings. 28 USC 1334. Patent and Copyright Cases. 28 USC 1338. Some Cases Against U.S. Includes tort actions, customs review,

crimes against the U.S., etc. Antitrust. 28 USC 1337. Some Admiralty Cases. 28 USC 1333. Foreign States. Permitted, if sued in a state court, to remove the

action to federal court. 28 USC 1441. Postal Matters. 28 USC 1339. Internal Revenue. 28 USC 1340. Securities Exchange Act. 15 USC 78.

Federal Right of Action. It is not essential that the federal statute expressly provide for a civil cause of action for an alleged violation. Federal rights of action are implied for cases such as Fourth and Fifth Amendment, Securities Exchange Acts, etc.

Amount in Controversy. There is no amount in controversy requirement in federal question cases, except when a defendant other than the U.S. and its agents violates the Consumer Product Safety Act, in which the minimum is $10,000 in controversy.

Louisville & N.R. Co. v. Mottley.

Well-pleaded Complaint Rule. A federal issue can only arise from a well-pleaded complaint. If the claim states a well-pleaded state issue, the claim will not have arisen under federal law.

o Defendant’s Answer. Is irrelevant to subject matter jurisdiction, which can only be found in the plaintiff’s complaint.

Anticipation of a Defense. A complaint does not create subject matter jurisdiction if it alleges federal issues only in anticipation of some defense.

American Well Works Company v. Layne and Bowler Company and Mahlon E. Layne.

28 USC 1331. Requires that federal law create a claim, rather than the claim merely deal with some federal law questions.

Merrell Dow Pharmaceuticals Inc. v. Larry James Christopher Thompson, et ux., et al.

Embedded Federal Question in State Law Claim. Three things to consider:

o Is the issue one that interests or concerns federal law or an issue that actually arose under federal law?

o Did Congress create a private cause of action for this particular statute or law? (if yes, go directly to federal court)

o Will the sovereignties of states be balanced? Grable & Sons Metal Products, Inc. v. Darue Engineering & Manufacturing

Embedded Federal Question in State Law Claim. Allows these cases into federal court at the federal court’s discretion, as opposed to Merrell which forbid any claim arising from state law from federal court.

Diversity of Citizenship Jurisdiction.o Rules.

28 USC 1332.o Flowchart.o Definitions.

Alienage Jurisdiction. Federal smj over cases between a citizen of a U.S. state and an alien, a citizen or subject of a foreign country.

Disputed Citizenship. Judge must make a reasonable decision of where that person’s citizenship should be regarded for a diversity suit. Two-part test:

(1) Physical Presence. Driver’s license, houses, where most of the time is spent, occupation, etc.

(2) Intention to Remain. Is the individual moving, or travels often? Citizenship. A person can only be the citizen of one state. Differs from

personal jurisdiction.

Corporate Citizenship. Citizenship in any state where they have incorporated themselves. It is common that a corporation can be incorporated in one place (e.g. Delaware) but have a principle place of business somewhere else. Courts have found the following sufficient for citizenship of a corporation:

o Muscle of corporation. Where the most factories, principles work, takes place.

o Brain of corporation. Where the headquarters, CEO, are.o Principle place of business.

Class Action Fairness Act of 2005. Allows claims with large numbers of plaintiffs to be brought with minimal diversity.

o Minimal diversity. At least one plaintiff class member is diverse from at least one defendant.

$75,000. In diversity claims, all that is necessary is a good faith allegation that the amount of the damages or injuries in controversy exceeds, exclusive of interest and costs, this sum.

In Controversy. Collateral consequences of the judgment. May include punitive damages.

Aggregation of Claims. o (1) when one plaintiff against one defendant, plaintiff may

aggregate all her claims against the defendant.o (2) when one plaintiff against several defendants, a

plaintiff cannot aggregate claims based on separate liabilities.

o (3) when several plaintiffs against one defendant, plaintiffs may aggregate their claims only where they are seeking to enforce a single title or right in which they have a common or undivided interest.

Strawbridge et al. v. Curtiss et al. Complete Diversity. Required for a diversity case to enter federal

court. If even one plaintiff and one defendant were from the same state as each other, 1332 does not apply.

Removal Jurisdictiono Rules.

28 USC 1441. 28 USC 1446.

o Definitions. Original Jurisdiction. A defendant can only remove an action that could

have originally been brought by the plaintiff in the federal courts. Note: the prevailing rule is that removal is tested only as of the

date of removal. Note: a defendant cannot remove on the basis that they have a

defense grounded in federal law.

Defendant’s Removal. Only the defendant may remove a case to federal court from state court. All defendants must agree/consent to the removal.

Note: it is impossible to remove a case from federal court to state court.

Removal Venue. Proper venue is the federal court of the state where the case was pending, even if venue would have been improper had the plaintiff originally filed the action in the federal district court of that state (1441a).

One Year Rule. A case may not be removed on the basis of diversity of citizenship more than one year after it was commenced in state court.

E.g. P (a citizen of State A) sues D1 (a citizen of State B) and D2 (a citizen of State A) in state court in State C, seeking damages of $250,000. The case is not removable at its commencement, since it does not satisfy the complete diversity rule for diversity of citizenship jurisdiction. However, if P later voluntarily dismisses the claim against D2, the case becomes removable. D1 must then remove within 30 days. But if more than a year has passed since the state case was commenced, D1 cannot remove on the basis of diversity of citizenship.

Notice of Removal. Short and plain statement of the grounds for removal. 30 Day Rule. A defendant must file a notice of removal within 30

days after receipt by or service on that defendant of the initial pleading or summons. (1446b)

Supplemental Jurisdiction.o Rules.

28 USC 1367.o Definitions.

Supplemental Jurisdiction. A claim may be joined that could not, by itself, invoke federal question jurisdiction or diversity jurisdiction. A federal court can therefore try a case containing both federal and state law claims.

United Mine Workers of America v. Gibbs. Common Nucleus Test. Requires that the supplemental claim arise

from a common nucleus of operative fact as the claim that invoked original federal smj.

o Note: if a state law claim gets into federal court with a federal claim, and the federal claim is later dismissed or settled, the federal court can still decide the state law claim as long as it’s there.

o Examples: E.g. 3 police officers and 2 citizens beat plaintiff up.

Both the federal claim (against cops) and state

claim (against citizens) arise from the same operative fact.

E.g. Defendant steals business secrets (federal claim) and then writes about them in a local magazine (state claim). Different operative facts for each claim.

Exxon Mobil Corp. v. Allapattah Services, Inc. et al. 28 USC 1367. In diversity case, at least one plaintiff must have an

amount in controversy exceeding $75,000.o Note: other plaintiffs in the suit can be joined under

supplemental jurisdiction although their claims do not meet the minimum.

Personal Jurisdiction

Personal Jurisdiction.o Rules.

Fifth Amendment. Fourteenth Amendment.

o Flowchart. (if yes, jurisdiction; if no, move on). 1. Federal or state court? If the case is state, move to (2). If federal,

consult FRCP rules 4k and 12. 1a. Possible waiver? Rule 12. 1b. 100 Mile Bulge. Rule 4k1B.

2. Long-Arm Statute. Does the state’s long-arm statute authorize personal jurisdiction?

3. Constitutional Analysis. 3a. Gotcha jurisdiction. 3b. Consent. Voluntary appearance. 3c. State citizen? 4d. In rem action? 5d. Does the defendant have contacts with the state? Contacts

may be:o (1) Continuous and systematic and related. Personal

jurisdiction.o (2) Continuous and systematic but unrelated. Contacts

must be substantial before personal jurisdiction.o (3) Single and isolated and unrelated. No personal

jurisdiction.o (4) Single and isolated and related. See specific

jurisdiction. Specific Jurisdiction. Two-pronged analysis:

Minimum Contacts. May include (1) purposeful availment, (2) intentional torts, (3) contractual contact, or (4) quasi in rem cases, all good for personal jurisdiction. May also include (5) stream-of-commerce contacts.

o O’Connor Stream of Commerce standard. Defendant must have intended his product to be marketed in the forum state.

o Brennan Stream of Commerce standard. Defendant must have been aware his product was marketed in the forum state.

Reasonableness. Factors to consider: (1) Burden on the defendant. (2) State interest in the case. (3) Plaintiff’s interest in the forum. (4) Systematic efficiency and social policy.

o Definitions. Personal J vs. Subject Matter J. Personal J is the ability of a court having

SMJ to exercise power over a particular defendant or item. SMJ is the court’s power over a particular type of case.

Types of Personal Jurisdiction. In Rem Jurisdiction. The court has power to adjudicate the rights

of all persons in the world with respect to a particular item of property. This jurisdiction is limited to situations where the property is located within the physical borders of the state and where it is necessary for the state to be able to bind all persons regarding the property’s ownership and use.

In Personum. TNOFPASJ. Traditional notions of fair play and substantial justice. Plaintiff Personal Jurisdiction. Automatic. Defendant Personal Jurisdiction. Limited by (1) some long-arm statutes,

(2) Constitutional due process, (3) foreign state defendants. Three ways a court can have jurisdiction over defendants.

Consent. Personal jurisdiction may be exercised over any defendant who consents to the jurisdiction.

o Express Consent. May be shown by: (1) defendant accepting jurisdiction in the forum

state, (2) defendant contracting beforehand to be subject

to the forum state,

(3) appointment of an agent domiciled in the forum state.

o Implied Consent. When the state has substantial reason to regulate the in-state activity of a nonresident of the state, it may provide that by engaging in such activity, the nonresident thereby appoints a designated state official as his agent for service of process.

General Jurisdiction. Claim does not concern contacts with the state. A court may exercise personal jurisdiction over any defendant “essentially at home” in the state, meaning the defendant has systematic and continuous connections with the state. Includes:

o (1) Gotcha Summons. When a defendant is physically present in the forum state (except in cases of special appearances), the plaintiff may serve them with summons.

Special Appearance. Defendant’s appearance for the sole purpose of contesting jurisdiction.

Forum State. Where the court proceedings of an action take place.

o (2) Domicile. When a defendant has their permanent home in the forum state, meaning a presence plus an intention to make the place their home.

Note: Citizenship is not recognized as being the same as being domiciled within a state.

o (3) Principal Place of Business. When defendant has continuous and systematic contacts with a state.

Specific Jurisdiction. If the defendant’s in-state activity is less than systematic or continuous (e.g., isolated acts), personal jurisdiction over the defendant will be proper only for causes of action arising from that in-state activity, i.e. minimum contacts.

o Pennoyer v. Neff. Minimum Contacts. Enough contacts with a forum

state that the exercise of personal jurisdiction by that state would not offend TNOFPASJ. Involves:

(1) Purposeful Availment. (2) Foreseeability.

o International Shoe Co. v. State of Washington Purposeful availment. Through contacts the

defendant purposefully availed herself “of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws.”

o World-Wide Volkswagen Corp. v. Woodson.

Foreseeability. Defendant can reasonably foresee being called into court in the forum state. Also, through contacts the defendant can reasonably foresee its products ending up in the forum state.

o Calder v. Jones. Intentional Torts. If defendant targets someone in

a state with an intentional tort, courts are likely to say that it constitutes personal contact, purposeful availment.

o Asahi Metal Industry Co. v. Superior Court of California Indemnification. Two parties have a contract. One

indemnifies (reimburses) the other for any damages that were resultant from a mistake by the indemnifier.

Prudential Consideration. Convenience of the forums, interest of the forum state in the case, etc.

Stream of Commerce. Two theories: Brennan dissent. Putting a product in the

general stream of commerce constitutes purposeful availment.

O’Connor plurality. Putting a product in the general stream of commerce is not enough for purposeful availment.

o J. McIntyre Machinery v. Nicastro Breyer dissent. The case at hand is specific to one

state, the scrap metal machine being targeted to sell in NJ and not to a worldwide audience. No precedent for worldwide corporations like Amazon.

Notice of Personal Jurisdiction. Personal jurisdiction only possible when the defendant has proper notice. Even if defendant knows about the lawsuit, proper notice must be given.

Rio Properties Inc. v. Rio International Interlink.o Rule 4. Federal rules for notice.

4e1. State law should be followed for serving notices in state court.

4e2. Federal law allows three methods for delivering notice:

(1) Giving a copy of the summons personally.

(2) Leaving a copy of the summons where they live with someone of suitable age and discretion.

(3) Deliver a copy of the summons to an authorized agent.

4b2. Anyone, within age and discretion, may serve notice. It is preferable to rely on someone like a sheriff because they know how to get it done right.

4d. Waiving service gives defendants 90 days rather than 60 to respond.

Venue

Rules.o 28 USC 1391.o 28 USC 1404.

Flowchart.o 1. Has the party challenging venue waived the challenge? (failure to object,

binding forum selection clause)o 2. Does a special venue statute apply? If not, apply 28 USC 1391.

2a. Where do the defendants reside? Same state? 2b. Is there a district or forum state where a substantial part of the

events or omission giving rise to the claim took place? 2c. Is there personal jurisdiction over defendant in the venue?

o 3. Can the venue be transferred? Is the transfer venue a place where the case could have originally been brought and convenient for the parties?

o 4. Forum non Conveniens. 4a. Is there an adequate alternative forum? 4b. Is the new venue in line with public policy and social interest?

Definitions.o Venue. Proper and convenient geographic location for a case, including:

(1) A judicial district in which any defendant resides, if all defendants are residents of the state in which the district is located.

(2) A judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated.

(3) If there is no district in the United States which satisfies 1 or 2, a judicial district in which any defendant is subject to the court’s personal jurisdiction with respect to such action.

o Erie Doctrine and Venue. A transfer solely on convenience grounds carries to the transferee court the originally applicable (under Erie) rules. A transfer on the ground that the original choice of venue was improper generally results in a change of the law applicable under Erie.

o Piper Aircraft Company v. Reyno. Forum non Conveniens. Common law doctrine. A forum may be

inappropriate for a case even if subject matter and personal jurisdiction are satisfied.

Note: venue may change to any location where the original claim could have been brought, or to any location where all parties have consented.

Note: if a court decides a venue improper, it may dismiss the case or move the case to a proper venue.

State Law in Federal Court.

Rules.o 28 USC 1652. Rules of Decision Act.

Flowchart: Choice of law.o Is there a clear, federal directive on point?

Yes. Apply it. Supremacy Clause demands. No. Apply the Rules of Decision Act, Erie analysis.

Erie. Is the rule under consideration clear substance, in essence, an element of the law governing the claim?

o Yes. State law applies.o No. Is the rule outcome determinative?

Yes. Federal court should apply state law unless there is a good reason not to, such as the federal court’s systematic interest in allocating responsibility between judge and jury or between trial and appellate courts.

Note: would it encourage (1) forum shopping and (2) inequitable ruling of law?

No. Federal court may ignore the state law without offending federalism concerns.

Rules of Decision Act. Definitions.

o Federal Directive on Point. Statute, Federal Rules of Civil Procedure. o Erie Railroad Co. v. Thompson

Laws. Includes common law and judicial decisions, as well as statutes. Erie Doctrine. If there is no federal directive on point, is the issue

substantial or procedural? (1) Substance. Follow state law. (2) Procedural. Follow federal law. (3) Unclear. Examine form and mode to see if the law would be

outcome determinativeo Hanna v. Plumer.

Twin Aims of Erie Doctrine: 1. To prevent “forum shopping”, when someone would choose

between vertical forums (federal or state) that would have different rules that may decide the outcome of the case.

2. To clear up uncertainty about the law that would be used in a case. Before the case would begin parties could be confident what law would be used, not just decided “from the stars” by a court.

Supremacy Clause. In federal court, where there is competition between federal and state law, federal law wins.

Pleadings and Joinder

Pleadings.o Rules.

FRCP Rule 7. FRCP Rule 8. FRCP Rule 9. FRCP Rule 10. FRCP Rule 11. FRCP Rule 15. FRCP Rule 55.

o Definitions. Complaint. Each claim for relief should contain:

(1) A short statement of the grounds for the court’s jurisdiction. (2) A short statement of the claim showing that the pleader is

entitled to relief, ando Note: for uncertain “facts”, the drafter should begin with

“on information and belief.” (3) A demand for judgment for relief, which may be in the

alternative. Rule 15. Amendments to complaints.

15a1A. Amendment must be within 21 days after answer is served.

15a2. A party may amend its pleading once. This is only allowed if the court’s leave or the opposing party’s written consent. A party may also amend its pleading when trial evidence is shown to conflict with the evidence as long as the evidence is not shown to prejudice against the objecting party.

15c. An amendment to a pleading that arises from the same conduct, transaction, or occurrence that was set forth (or was attempted to be set forth) in the original pleading generally is deemed filed on the date that the original pleading was filed.

o Note: Answer. Confirms or denies, or answers “I don’t know,” to each of the

alleged facts in the complaint. A confirmed fact cannot be denied later. Affirmative Defense. Even if plaintiff can prove all the elements of

their claim, a successful affirmative defense makes the defendant non-liable.

Counterclaims. May be included in the answer. Rule 11.

Certification Upon Entering Court. Attorney, by presenting a pleading or other paper, certieis that to the best of his or her knowledge:

o (1) the paper is not presented for improper purpose.o (2) the legal contentions therein are warranted by existing

law or a non-frivolous argument for the modification of the existing law or the establishment of new law.

o (3) the allegations and factual contentions have evidentiary support and denials of factual contentions are warranted by the evidence.

Sanctions. Court on its initiative may enter an order against a party demanding them to show why sanctions shouldn’t be imposed for violation of Rule 11.

o Note: Barratry. Joinder.

o Rules. FRCP Rule 13. FRCP Rule 14. FRCP Rule 18. FRCP Rule 19. FRCP Rule 20. FRCP Rule 21.

o Definitions. Claims.

Rule 18. Plaintiff has multiple claims against defendant. Plaintiff may join as many claims as they have against defendant, regardless if the claims are about the same thing.

Rule 20. Multiple plaintiffs want to file claims against defendant. All plaintiff claims must arise from common occurrence or issues of fact. Same for defendants.

o Note: Rule 20a3. All plaintiffs and defendants don’t have to concern each other. E.g. P2 may have a claim against D7, but not D1-6.

Supplemental Jurisdiction. Needed by a federal court over federal question claims, requiring state claims joined to be part of the same case or controversy as the federal claim. For cases in federal court based solely on diversity, supplemental jurisdiction may not support:

o (1) claims by plaintiffs against persons made parties under Rules 14 (impleader), 19 (compulsory joinder), 20 (permissive joinder), or 25 (intervention).

Third-Party Claim. Rule 14. Impleader. Not originally a party to the action. A

defending party (plaintiff or defendant) asserts that another third party is liable as well and brings them in if an indemnification relationship exists.

o Indemnification. A third-party agrees to pay for any damages that another party may cause. Without this relationship, this Rule 13 claim cannot be brought.

Note: when a plaintiff realizes that they should have sued a third-party who is brought in by the defendant, the plaintiff can join the third party as a defendant without indemnification needed.

Note: supplemental jurisdiction does not apply if SMJ does not apply to this new defendant; this is to prevent plaintiffs from bringing in non-qualifying defendants later in the case.

Counterclaim. Defendant claims against plaintiff. Rule 13. Counterclaim must be for a different amount than the

claim. Compulsory Counterclaim. Arises from the subject matter or

occurrence of plaintiff’s claim and doesn’t involve adding another party that otherwise couldn’t be added. Defendant must raise this counterclaim during the present case or otherwise is barred from the claim in future cases.

o Note: subject matter jurisdiction isn’t needed for compulsory counterclaims because they arise from the same subject matter as plaintiff’s.

Permissive Counterclaim. Any claim that is not compulsory (arising from different subject matter or occurrence).

Cross-Claims. Co-parties (plaintiff and defendant) may assert claims against each other that arise out of the same transaction or occurrence as the main action.

Subject Matter Jurisdiction of Cross-Claims. Assess whether that claim could invoke diversity of citizenship or federal question jurisdiction.If so, the claim may be asserted in federal court. However, if a cross-claim does not invoke diversity of citizenship or federal question jurisdiction, the cross-claim could nonetheless be asserted in federal court through supplemental (ancillary) jurisdiction.

Preclusion

Flowchart.o Claim Preclusion Flowchart. 3 criteria must be satisfied for claim merger:

1. Is the current claim the same as a claim raised in a prior action? 1a. Is the current claim identical? 1b. Does the current claim arise out of the same transaction or

series of connected transactions? 2. Does the current action involve the same parties of the original action?

2a. Identical parties? 2b. Parties in privity? If the party was represented in the first

action, or the interest of the new party is unified with the interest in the first party, the identity requirement is satisfied.

3. Was the prior action concluded by a final judgment on the merits? Note: on the merits means based on substantive rather than

procedural issues.o Issue Preclusion Flowchart.

1. Does the current action involve the same parties that were parties to and adversaries in the original action?

If yes, proceed. If no, issue preclusion is not available.

o Note: it is possible for different parties in subsequent actions to use issue preclusion if the issues were fully litigated in a prior action. (e.g. A sues B, wins on issue; C now sues B, can win on same issue).

2. Is the issue raised in the prior action identical in all respects to the issue raised in the current action?

If yes, proceed. If no, issue preclusion is not available.

3. Was the issue actually litigated and determined in the prior action, meaning the issue was raised and argued by the parties?

If yes, proceed. If no, issue preclusion is not available.

4. Was resolution of the issue in question necessary to the judgment reached in the case?

4a. Was it outcome determinative? 4b. Is it clear on what grounds the judgment relies?

Introduction. o Verdicts.

General Verdict for the Defendant. Tells almost nothing about how the case was specifically decided (because the defendant only needs to disprove one or more elements of plaintiff’s claim to win).

General Verdict for the Plaintiff. Tells much more, because the jury must have found for the plaintiff on all elements of the plaintiff’s claims.

Specific Verdict for Either Party. Tells the most, because it lays out the analysis of why the winning party prevailed.

Claim Preclusion.o Definitions.

Res Judicata. Once a final judgment on the merits has been rendered on a particular cause of action, the claimant is barred from asserting the same course of action in a later lawsuit.

Merger. When the claimant wins the earlier lawsuit, the cause of action is said to have been merged into the judgment and cannot be brought to court again.

Bar. When the claimant wins the earlier lawsuit, the claimant is barred by the adverse judgment and cannot sue again.

Requirements for Res Judicata. For merger or bar to apply, it must be shown that:

(1) the earlier judgment is a valid, final judgment on the merits,o On the Merits. A judgment is reached on the issues of the

case, not on some penalizing action or involuntary dismissal.

(2) the cases are brought by the same claimant against the same defendant, and

o Note: Traditionally, claim preclusion applies only if the earlier case and the latter case are brought by the same claimant against the same defendant. It is not enough that the same litigants were also parties in the previous case; they must have been in the same configuration of one asserting a claim against the other.

(3) the same cause of action is involved in the later lawsuit.o Cause of Action. All claims arising out of the same

transaction or occurrence that is the subject matter of a claim asserted by the claimant.

Mutuality. See Issue Preclusion. Rush v. City of Maple Heights.

Claim Preclusion Defense. Plaintiff bringing the same case, but with slightly different claim (such as economic damage in one and physical damage in the other) arising from the same exact fact pattern, has the second claim merged with the first.

Parklane Hosiery Company Inc et. al. v. Shore Traditional view. A new plaintiff suing the same defendant (under

the same fact pattern) who has lost in case 1 cannot use the ruling of case 1 to win case 2.

New view. Ad hoc. Court can decide if the second plaintiff can use Case 1’s ruling if certain limitations are met. E.g. if defendant defended case 1 strongly, etc.

Issue Preclusion.o Definitions.

Collateral Estoppel. A judgment binds the plaintiff or defendant (or their privies) in subsequent actions on different causes of action between them (or their privies) as to issues actually litigated and essential to the

judgment in the first action. Does not bar a second case; rather, the issue is deemed established in the second case without need to proffer evidence on it.

Case 1 vs. Case 2.o Note: Parties and their privies are bound, but generally not

nonparties. i.e. Case 1 is only precedent over the parties in Case 1 and parties from the same subject matter circumstances.

o Note: If case 2 contains the same issues between the same parties as Case 1, the winner of the same issues (in case 1) is automatically the winner of those same issues in case 2. If any of the parties are substituted, preclusion doctrine does not take effect.

Mutuality. If a party to Case 2 was not around to Case 1 (therefore having nothing at risk in Case 1) they historically could not use the “automatic win” against a party from case 1 who is now in Case 2. New parties get to use nonmutual preclusion.

o Defensive nonmutual issue preclusion. D1 wins on an issue against P1. P1 now sues D2 on the same fact issue as case 1. D2 can use D1’s win to win against P1.

o Offensive nonmutual issue preclusion. P1 wins on an issue against D1. P2 cannot easily sue D1 and win instantly (for

various reasons: D1 could not have litigated to the best of its ability in Case 1, one case might be jury and the other not, etc.). Cite Parklane Hosiery (Parklane already won against SEC, so litigated to the best of its ability, so another plaintiff could bring a case against them).

Note: if enough plaintiffs in a row keep suing the same losing D, the judges can use discretion to preclude P15,16,17,etc.

o Mutual claim preclusion. P1 sues D1. If P1 loses, P1 is barred from re-suing D1 on the

same fact issues again. If P1 wins, P1’s winning claim is merged with the

judgment. (i.e. P1 wins on negligence claim for physical damage to bike; P1’s negligence claim merges with her winning judgment; P1 cannot bring another negligence claim for physical damage to her body).

Requirements for Collateral Estoppel.

(1) Final judgment. A judgment may be final even if subject to post-trial motions or appeals.

(2) Issue was actually litigated and decided in the previous case, not just default or consent judgment.

(3) Issue was essential to the judgment, meaning it was clearly decided by the trier of fact and the judgment depended on the issue.

Choice of Law. When Case 1 has been decided in state court, the court in Case 2 (whether state or federal) generally will apply the claim or issue preclusion law of the jurisdiction that decided Case 1.

Motions to Terminate Cases.

Ruleso FRCP Rule 12.o Also…

41a. 41b. 12c. 56. 52. 50a. 50b.

Definitions.o Motion to Dismiss. Addresses the following preliminary matters: defects in

subject matter jurisdiction, personal jurisdiction, venue, process, and service of process; failure to state claim; failure to join needed party. To survive a motion to dismiss a party must show that a reasonable jury could find the evidence to fulfill the elements of their claim.

Rule 12. 12b1. Motion to dismiss for want to subject matter jurisdiction. 12b2-5. Motion to dismiss for want to personal jurisdiction. 12b6. Motion to dismiss for failure to state a claim. Presumes that

all facts are true and interprets inferences in plaintiff’s favor but still finds an issue lacking.

Bell Atlantic Corp. et al. v. Twombly et al. Plausibility. A plaintiff’s claim must plausibly be found in the

evidence at the time of filing his claim. Ashcroft et al. v. Iqbal et al.

Bivens case. Claims against federal actors can be based completely out of the Constitution, without needing statutory basis.

Johnson et al. v. City of Shelby, Mississippi

Surviving a Motion to Dismiss. As long as all the relevant facts are therein, the claim doesn’t necessarily have to be named.

o Voluntary Dismissal by Plaintiff. Without prejudice once as a matter of right; also possible by stipulation or court order.

Note: must be done before defendant files answer or motion for summary judgment.

o Involuntary Dismissal. Plaintiff fails to prosecute the case or to comply with the Rules or a court order.

Note: may happen at any time.o Motion for Judgment on the Pleadings. On the face of the pleadings (without

considering matters outside the pleadings), the moving party is entitled to judgment. Treated as motion for summary judgment if accompanied by outside matters.

Note: may be made after pleadings are closed but not so late as to delay trial.

o Summary Judgment. No genuine dispute of material fact and moving party is entitled to judgment as a matter of law. May support by pleadings, affidavits, discovery materials.

Note: may be made any time until 30 days after close of discovery.o Judgment on Partial Findings. In a nonjury trial, the judge may enter a judgment

as a matter of law if she makes dispositive partial findings on the claim. Note: may be made once the judge has heard sufficient evidence to make

dispositive findings and all parties have been fully heard.o Judgment as a Matter of Law. Directed Verdict. Evidence viewed in light most

favorable to motion’s opponent leads reasonable person to conclusion in favor of moving party.

Note: may be made after opposing party has presented case but before submission of case to the jury.

o Renewed Motion for Judgment as a Matter of Law. The verdict returned could not have been reached by reasonable persons. Moving party must have previously sought judgment as a matter of law sometime during the trial.

Note: must be made within 28 days after entry of judgment.

Case Management

Rules.o FRCP Rule 16.o FRCP Rule 41.o FRCP Rule 68.

Definitions.o Rule 16.

Pretrial Conference. Not necessary but useful for purposes of: (1) expediting disposition of the action,

(2) establishing early and continuing control, (3) discoursing wasteful pretrial activities, (4) improving the quality of the trial through more thorough

preparation, and (5) facilitating settlement.

o Note: it is this last point that some parties are opposed to because no evidence has been presented yet.

o Note: Court-ordered mediation is usually not opposed to when facilitating settlement, because the judge isn’t as directly involved in the claims.

Scheduling Order. The general rule is that a judge must issue a scheduling order, unless local rule prohibits.

o Note: sometimes a judge can adopt a party’s plan as a scheduling order.

Stipulations. Court expects parties to act in good faith by both parties agreeing to certain facts. Helps to avoid proving pain-in-the-neck facts, like basic employment records and medical history etc. Can also apply to documents, authenticating that they are what they are.

Matters for consideration. Methods to simplify the pretrial material. Sanctions. If a party missteps (see 16f1) a judge can issue a sanction of

paying imposing costs and/or fees on the party. Fees. Attorney fees. Costs. As a generally matter, does not include attorney fees. Other

court costs. o Note: except under Rule 68 according to the Marek

majority in the S.Ct., when costs includes fees.o Rule 41.

Dismissal of actions. Voluntary, involuntary, counterclaims/crossclaims/third-party claims.

Voluntary dismissal. A motion of dismissal may be filed without permission before the opposing party serves either an answer or a motion for summary judgement, or a stipulation of dismissal signed by all parties who have appeared. This dismissal is without prejudice.

o Rule 68. Offer of judgement. Paying costs after an unaccepted offer. If the

judgement that the offeree finally obtains is not more favorable than the unaccepted offer, the offeree must pay the costs incurred after the offer was made.

o Marek v. Chesny American Rule. Each party has been required to bear its own attorney’s

fees. Usually allows civil rights claims to have a better chance of getting to trial.

British Rule. Loser pays attorney’s fees.

Civil Rights Attorney’s Fees Awards Act of 1976. A prevailing party in certain civil rights actions may be awarded attorney’s fees as part of the costs.

Plain Meaning Argument. The word “costs” was intended to refer to all costs properly awarded under the relevant substantive statue or other authority.

Legislative Intent Argument. The word “costs” should be interpreted in accordance with the definition of “costs” set forth in other parallel statutes.

Discovery

Rules.o FRCP Rule 26.o FRCP Rule 27.o FRCP Rule 28.o FRCP Rule 29.o FRCP Rule 30.o FRCP Rule 31.o FRCP Rule 33.o FRCP Rule 34.o FRCP Rule 35.o FRCP Rule 36.

Types of Discovery.o Rule 30.

Oral Deposition. Who? Information may be sought from any person. Form. Information is obtained in answers to questions,

documents. Limit. 1 per day for 7 hours; 10 total without the court’s leave. Court Approval. Not required except for over 10, and for a second

deposition of the same person. Strategy.

o Strength. Under oath. Party can ask anything within the scope of the case. Forces on the spot answers. Adjustable.

Cost. Costs to deposition taker.o Rule 30, 31.

Written Deposition. Who? Information may be sought from any person. Form. Information is obtained in answers to questions. Limit. 10 total without court’s leave. Court Approval. Not required except for over 10. Strategy.

o Strength. Cheaper.o Weakness. Can’t ask follow up questions.

Costs.o Deponent pays own costs and time.

o Rule 33. Interrogatories.

Who? Information may be sought from any party. Form. Information is obtained in written answers, under oath,

often connection with a request for production. Question is restricted to a question with a single answer, not a basic question requiring 100 pieces of information from 100 different people.

Limit. 25 total without court’s leave. Court Approval. Not required except for over 25. Strategy.

o Strength. Cheaper.o Weakness. Inflexible.

o Rule 34. Request for Production.

Who? Information may be sought from any party. Form. Information is obtained in documents. Limit. None. Court Approval. None. Costs. Responding party.

o Rule 35. Physical/Mental Exam.

Who? Information may be sought from any party or any person under legal control of any party.

Form. Information is obtained in an exam report. Limit. None. Court Approval. Yes. The court must find good cause. Strategy.

o Strength. Gets unique information. When done, results are available as evidence.

o Weakness. The other party may oppose the request. Costs. Requestor.

o Rule 36. Request for Admission.

Who? Information may be sought from any party. Form. Information is obtained in admissions of facts, denials of

facts, and “I don’t knows.” Limit. None. Local rules may apply. Court Approval. No, unless an admission needs to be amended. Strategy.

o Strength. Facts admitted to are no longer in controversy. Scope of Discovery

o Rules. FRCP 26b and c.

o Definitions. Privilege. An exception that prevents request for information within the

scope of discovery. Is designed to protect the confidentiality and trust in professional legal relationships.

Purpose of Privilege. To “encourage clients to make full disclosure to their attorneys.” To protect the giving of information to the lawyer to enable him to give sound and informed advice.

o Note: Privilege usually only covers communications (what one individual told another), not necessarily what an individual saw.

Types of privilege:o Strong: Psychotherapist-patient, lawyer-client, priest-

confessor.o Lesser: Spouse-spouse, doctor-patient.

Note: Spousal privilege is undermined by later decisions.

General Observations. Not privileged.o Observations Led to by Communication. Privileged if the

communication was privileged. Exception to Privilege.

o Client. Owns the lawyer-client privilege. This means that the client can waive the privilege. The client may even unintentionally or carelessly waive the privilege.

o Upjohn Company v. United States. Whenever an entity is involved as a client, the entity owns the privilege, not the speakers. The company’s head executives can waive privilege for lower level employees.

E.g. Man with fraudulent seminar scheme discusses a letter from his attorney, thus waiving the privilege of that letter.

Note: Bringing in another person (e.g. a neighbor) to a lawyer’s meeting shows that the client’s privilege is waived to include the neighbor.

Note: Eavesdropping doesn’t count, as long as the client and lawyer weren’t negligent in how they communicated.

o Inadvertent Disclosure. Courts are divided over whether the privilege is waived or not. Some courts hold that the recipient wrong party is not allowed to read the

communique. Other courts hold that the recipient wrong party should take advantage of the situation and read the communique.

E.g. Sending an email with important documents meant for the client to opposing party accidentally.

Work Product Doctrine. FRCP 26b3. “Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative.”

o Undue Hardship Exception. If the products are essential and cannot be obtained without undue hardship. Includes witnesses going to other jurisdictions, dying, etc.

o Note: Work Product gets special protection (with pretty much no exceptions) if the Work Product betrays the lawyer’s mental processes.

Experts in Trial Preparation. Expert opinion needs to be turned over in discovery phase. Don’t require the expert to send anything in writing right away (e.g. a phone call is ideal), because if they say you are wrong that writing can be used against you in litigation. If you like the expert’s response, ask them to put the response in writing.

In Camera Ex parte Review. Review by a judge in chambers of documents to see if they are privileged, away from the opposing side and public eye.

Sanctions. Three sanctions against a party that has acted with the intent to deprive another party of the information’s use in the litigation (present or future litigation):

o (1) The court may presume that the lost information was unfavorable to the party.

o (2) The court may instruct the jury that it may or must presume the information was unfavorable to the party.

o (3) The court may dismiss the action or enter a default judgment.

Compulsion.o Rules.

FRCP Rule 37.o Definitions.

Compulsion. Allows the aggrieved party to ask the judge to order the recalcitrant party to produce the discovery.

Note: preference is for parties to solve these issues themselves before the judge has to get involved.

Electronic Discovery.o Rules.

Sedona Principles for Electronic Document Production 2007. Page 401 of the textbook [not necessary to be transcribed here].

o Definitions. Moore v Publicis Group

Linear Review. Humans look through documents. Keyword Search. Humans suggest keywords and computers

search. Human begins then search through the results. Predictive Coding. Sophisticated algorithms that enable a

computer to determine relevance, based on interaction with and training by a human reviewer.

Motions for Summary Judgment.

Rules.o FRCP Rule 12b6.o FRCP Rule 56.

Definitions.o Daubert Motion. If one party successfully excludes the other party’s scientific

evidence, and if without that evidence an element of the claim cannot be proven, a successful Motion for Summary Judgment often follows.

o Summary Judgment. Used when there is no genuine issue of fact. Plaintiff must show that all elements of its claim are uncontested as genuine issues of material fact. Defendant only has to negate one element. The goal of both plaintiff and defendant to survive summary judgment is to create a genuine issue of material fact, which the jury must decide.

o Burden of Proof. Two elements: Burden of Persuasion. How much a party has to convince a factfinder.

The party who asks the court to change the status quo bears this burden. Note: When defendant makes an affirmative defense, they

change the status quo (undoing that the plaintiff has proven or can prove all its points).

Burden of Production. Burden of “going forward.” Goal of proof for one side being so great that no reasonable person could find for the other side. Burden shifts around during the case’s progression. Begins on the party who has the burden of persuasion.

o Juryland. The party making a claim needs to meet a burden of production on all elements of their claim (get all elements of their claim into an area where a jury could reasonably decide). In contrast, a defending party needs only get at least one element into “juryland” (creating a genuine issue of fact to survive summary judgment).

o Partial Summary Judgment. Motion for Directed Verdict. When a party proves a genuine issue of material fact (beyond juryland, proof that no reasonable person

could decide against), that party can ask the judge to instruct the jury that they need to decide for that party on that element.

Note: also includes a motion for summary judgment against one or more claims in a total case, or to bring summary judgment against one or more defendants in a total case.

Note: even if plaintiff definitely proves all elements of their claim, the defendant’s affirmative defense could still negate or weaken some of those elements.

o Presumption. Three concepts: Irrebuttable Presumptions. If-then presumptions. The law tells a

presumption that you have to accept. E.g. a seven year old cannot have the mens rea requisite for a

felony charge. Permissive Inferences. It is okay if a judge comes to a certain decision,

although it is not required. E.g. if a truck says “Home Depot” on the side, it is probably owned

by Home Depot. Real Presumptions. If a party shows some basic fact that the law says is

significant, then some presumed fact must be found to be true. E.g. presumption that mailing a letter correctly through the US

Mail leads to a presumed fact that the addressee received the mail.

Note: this does not apply when the party against whom the presumption operates puts in evidence sufficient to support a finding of “not-presumed fact”.

Summary Judgment is concerned with Real Presumptions.o E.g. discrimination lawsuit, with two elements of “the

negative effect of discrimination” and “the intent of the discriminators.” The basic fact would be showing that defendant’s workforce is disproportionate according to discrimination, it is a presumed fact that the employer likes it that way. The defendant must then rebut.

o Rule 56. 56a. The judge should state on the record the reasons for granting or

denying the summary judgment motion. 56b. Time frame for summary judgment. Up to 30 days after the close of

discovery. Note: if a motion is made to early, a judge can postpone judgment

until more evidence is gathered in the case. 56c. Evidence admissible for making a motion of summary judgment

includes: (1) evidence set in facts, (2) depositions, admissions, and other types of discovery materials, and (3) an assertion that an adverse party cannot product admissible evidence to support the fact.

Note: a judge considers all the evidence he is presented with and the cited materials in the case, and may make a judgement for either party.

56h. A declaration made in bad faith may result in sanctions.o Celotex Corp. v. Catrett.

Defendant’s Burden in Response to Summary Judgment Motion. A defendant does not need to produce new documents or evidence to negate plaintiff’s claim, but rather show that plaintiff’s evidence does not create a sufficient jury question.

Jury Trial

Rules.o Seventh Amendment.o FRCP Rule 38.o FRCP Rule 39.

Definitions.o Jury Nullification.o Jury Instructions. Lawyers of either party submit proposed jury instructions

based on the applicable law. Lawyers debate in front of the judge over what instructions should be given. Judges decide on the final definition of law. The proposed instructions are based off of the law of the state.

Note: important for appeals. The system depends on the jury correctly understanding the law as put out in the instructions.

o Seventh Amendment’s Right to Jury Trial. Has not been Constitutionally applied to all states. The states each have their own version of jury rights, which can alter the number of jurors and to allow for non-unanimous jury verdicts.

Preserve. Differs the Seventh Amendment from other amendments. Brennan vs. Scalia. Is the amendment “living”, meaning that it changes to modern circumstances, or is “preserved”, as staying as it was when historically implemented. The word “preserve” here strongly leans to the latter, meaning history is important in interpreting the Seventh.

“Law” vs. “Equity.” Right to jury trial was only available for law cases before the two merged in 1938 with the adoption of the FRCP. When the Seventh says “preserve”, this bifurcation of courts must be preserved, which means cases must be decided to be “law” or “equity” (as they would have been before the merger) to decide whether they have a Constitutional right to jury or not in federal court.

o Law Courts. Referred to money matters.o Equity Courts. Referred to action matters, like injunction

and specific performance.o Chauffeurs, Teamsters and Helpers, Local No. 391 v. Terry, et al.

Seventh Amendment Right of Jury. Three ways to decide: Historical Decision. Whether the issue was from equity or law. Remedy Decision. Whether the remedy of the issue is from equity

or law. Complexity Decision. Less important factor. Even if a case is

normally one that would go before a jury, sometime the case involves a complexity issue that the judge rather than a jury should decide. Applied narrowly.

o E.g. Patent cases.o Jury Trial Chronology.

1. Opening Statements. 2. Plaintiff Presentation of Evidence and Witnesses. Opinions and

confessions of witnesses can count as proof toward plaintiff’s case. Note: dispute over whether evidence should be presented to the

jury is fought about by both parties’ lawyers away from the presence of the lawyers. Judge can either call them to the bench for quick matters or tell the jury to retreat to the jury room for larger matters.

3. Defendant’s Cross-Examination of Witnesses. More Leeway. Defendants can use leading questions. Less Leeway. Defendants can only ask questions that are (1) about

topics raised by plaintiff and/or (2) challenging to the credibility of a witness.

Note: If defendant doesn’t completely negative any elements of plaintiff’s claims, plaintiff can “rest.”

4. Defendant Moves for Judgment. Defendant moves that plaintiff has failed its burden of production by not producing any evidence such that any reasonable factfinder could find for plaintiff on the elements of their claim.

“Judgment as a matter of law.” FRCP 50. If a party is fully heard on an issue and there is no evidentiary basis to find for the party on that issue, the court may:

o (1) Resolve the issue against the party.o (2) Grant a motion for judgment as a matter of law against

the party on a claim that can be maintained or defeated only with a favorable finding on that issue.

5. Defendant’s Presentation of Evidence and Witnesses. 6. Plaintiff’s Cross-Examination of Witnesses. 7. Plaintiff Moves for Judgment. Asserts that defendant has not struck

down any elements of plaintiff’s claim. 8. Defendant Moves for Judgement. Asserts that they have negatived at

least one element of plaintiff’s claim. 9. Jury Instruction Hearing. Both parties submit their own versions of

proposed jury instructions. Judge decides on legal issues.

10. Closing Arguments. Jury instructions are read. Judge gives the case to the jury.

11. JNOV. Judgment Notwithstanding the Verdict. 12. Renewing a Motion after Trial. FRCP 50b. The court may (1) allow

judgment on the verdict, if the jury returned a verdict, (2) order a new trial to vacate the original judgment, or (3) direct the entry of judgment as a matter of law.

13. Appeals Motions. When an appellate court is looking at an appealed case and finds that a piece of evidence should not be submitted at the trial level, they must decide whether or not to remand for a new trial or rule as a matter of law.

Note: the appellate court, while ruling that evidence is inadmissible, should decide whether a plaintiff could have produced other evidence that would have been sufficient. If it is impossible for plaintiff to ever produce such evidence, the case may be ruled on as a matter of law.

o Post-Jury-Trial Judgments. FRCP 60. Relief from a judgment or order.

60b. All grounds for relief from a final judgment, order or proceeding must be made within a reasonable time, with reasons 1, 2 and 3 having a time limit of 1 year.

o 1-5. [see FRCP]o 6. Any other reason that justifies relief.

60a. Corrections based on clerical errors. After an appeal has been docketed in the appellate court, such a mistake may be corrected only with the appellate court’s leave.

FRCP 52. Findings and conclusions by the court; judgment on partial findings. No jury.

Judge’s duty needs to be bifurcated into fact-finding and law-concluding.

FRCP 54. Judgment; costs. Request for relief. A judge can give additional relief other than

requested in the plaintiff’s prayer for relief, such as costs.