Civ Pro 1, Spring 2010, Eichhorn

7/31/2019 Civ Pro 1, Spring 2010, Eichhorn

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Civ Pro 1, Spring 2010 (Eichhorn)INTRO: Background regarding the FRCP and the adversary system

Rule 1: The rules should be construed and administered to secure the just, speedy, and inexpensivedetermination of every action and proceeding.

Dispute Pre-filing decisions Filing (Complaint) Response Discovery Summary Judgment MotionsTrial (purpose: to resolve factual disputes) Post-Trial (Appeal)

Congress Supreme Court Judicial Conference Advanced Committee

Congress has power in Article I to create lower federal courts

District Court Circuit Courts Court of Appeals US Supreme Court

England had courts of law and courts of equity; in 1938 the US combined them

3 basic requirements that limit the proper courts for any lawsuit (3 rings of civ pro):1. Court must be able to exercise personal jurisdiction over the defendant

- Prevents a plaintiff from suing a nonresident defendant in a state unless that defendant hasestablished a relationship to that state that would reasonably lead her to anticipate beingsued there

- Turns on the relationship between the defendant and the state2. Court must have subject matter jurisdiction over the kind of case the plaintiff wishes to litigate

- Subject matter jurisdiction of the federal courts is much more limited than that of the statecourts

- Federal courts have no jurisdiction over most common types of suits, such as torts, contract,or recovery under state statutes

3. The chosen forum must be a proper venue under the applicable venue statute

I. PLEADINGS. How do the parties initially state and respond to legal claims?

Pleading: a document by which a party initially states its claims (stating facts sufficient for recovery)- SC has generally adopted the FRCP—so rules that apply in federal court apply in SC- SC’s 8(a) says “a short and plain statement of facts” rather than a short and plain statement of the claim

Dioguardi v. Durning• Facts: Dioguardi is suing the collector of customs for improperly handling his goods and selling them at

auction. Action for conversion. Dioguardi drafted his own complaint and Durning filed a motion to dismissfor failure to state a cause of action.

• PH: District court dismissed the complaint.• Issue: Does a plaintiff have to describe in detail all causes of action in the complaint for the complaint to

be sufficient?• Holding: No. FRCP follow the notice pleading standard. A complaint need only put the court and the

defendant on notice of the causes of action. For proper notice, a complaint only need to present a short

and plain statement of the claim showing the pleader is entitled to relief. There, the district court erredby granting the motion to dismiss.* Dioguardi ultimately loses.

• Note : Filing of a complaint commences the action. Complaints in federal courts usuallyrequire: (1) statement of subject matter jurisdiction; (2) short and plain statement of the claim,showing P entitled to relief; (3) demand for judgment.

**Special matters (e.g. fraud, mistake or special damages) must be pled with more specificity.

**”The accepted rule is that a complaint should not be dismissed for failure to state a claim unless it appearsbeyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him torelief.”



Conley v. Gibson – case that cited Dioguardi as authority for what it called the “accepted rule that acomplaint should not be dismissed for failure to state a claim unless it appears beyond doubt that theplaintiff can prove no set of facts in support of his claim which would entitle him to relief.”

• Obviously, the courts require something more than “defendant is liable to me.” Court says thefunction of the complaint is to give the defendant fair notice of what the plaintiff’s claim is and thegrounds upon which it rests.

• The factual allegations of a complaint must cover all elements of the substantive claim – pleadermust allege each part of the right of action

•

Conley case demonstrates exceedingly forgiving attitude toward pleading deficiencies• Wright & Miller (golden standard in Civ Pro treatises): The complaint must contain either direct

allegations on every material point necessary to sustain a recovery on any legal theory, even thoughit may not be the theory suggested or intended by the pleader, or contain allegations from which aninference fairly may be drawn that evidence on these material points will be introduced at trial.

Garcia v. Hilton Hotels International, Inc. (what does it take to have a legally sufficient claim?)Facts: Garcia, ex-employee of Hilton Hotels, is suing the chain for defamation. The hotel accused him of using the hotel in association with his prostitution side business. He was violently discharged and allegesslander.P.4: defamation/slander at firingP.5-8: defamation/slander at hearing-- Defendant files motion to dismiss for failure to state a claim: 12(b)(6)

Issue:Holding: Court won’t grant motion to dismiss for paragraph 4, but will for paragraphs 5-8.- Common law says: you can say what you need to say at a hearing, no basis for slander/defamation

lawsuit (protects truth at a hearing)- Privilege: bars a defamation suit

o Conditional privilege: protects false statement made in good faitho Absolute privilege: statement can’t be sued on as defamatory, even if it was made maliciously

- 12(e): motion for a more definite statement – for a statement that is too vague/ambiguous for party toprepare a response

- Diversity action: federal district court has subject-matter jurisdiction to hear a civil case when it is betweentwo parties from different states

A. Complaints. What does it mean to state a claim, and in what format does a plaintiff do so?FRCP 8(a), (d); 9; 10.

South Carolina Rule 8(a): General Rules of PleadingFederal: short and plain statement of claim…SC: short and plain statement of the FACTS… (Ultimate FACTS)(minimum threshold that will survive a motion to dismiss)legal conclusions ultimate facts evidentiary facts (hard to determine, so most jurisdictions have justmoved to federal method of stating a claim)

South Carolina Rule 8:

• The differences between the Federal Rule and SC Ruleo State rule describes how compensatory and punitive damages should be pleaded and demandedo State 8(a) (1) requires a recitation of the applicable statutes and facts upon which jurisdiction

dependso State 8(a)(2): uses a short and plain statement of the “facts” showing that the pleader is entitled

to relief by using the word facts SC is moving away from notice pleading and makes it look more

like a codes pleading statethe more important part of the description is the factual allegations rather than the legal

conclusions (she negligently drove v. she was negligently driving when she ran a red lightand collided into the plaintiff while talking on her cell phone)



• A party may respond to a pleader’s allegations with an admission, a specific denial, a general denial, or adenial based upon insufficient information

• An affirmative defense is any fact asserted by the respondent that contradicts the opposing party’sclaim.

o A party must raise all affirmative defenses or they are waived

• A party who fails to respond is deemed to have admitted everything except the amount of damages. If no response is required then everything is considered denied.

• Parties should plead in a simple direct and concise manner consistent with the notice pleading standardof Rule 8(a).

o No technical forms of pleading are required

o The allegations should be made in general terms and omit evidentiary material

• As long as the pleading provides the adverse party with proper notice of the claim or defense courts willnot construe the pleading hypertechnically

Bell Atlantic Corporation v. Twombly Telecommunications Act of 1996: adopts a pro-competitive framework for the telecommunications industryin the US and opens the markets for both local telephone and long-distance services to effective competition.

The Act permitted Incumbent Local Exchange Carriers (ILECs) to offer long-distance service, but only if theypermitted competition for local telephone service. ILECs generally did not attempt to provide local telephoneservice outside their geographic area, which resulted in very little competition in the provision of local phoneservice.

- Facts: Two plaintiffs bring a class action on behalf of all subscribers of local telephone and/or high speedinternet services, alleging that ILECs had violated §1 of the Sherman Antitrust Act, which prohibits trust,conspiracies, or otherwise in restraint of trade or commerce. The theory is that the ILECs had conspiredwith one another to stay out of each other’s local phone territories.

-Plaintiffs charge that ILECs conspired to restrain trade in 2 ways: (1) engaged in parallel conduct in theirrespective service areas to inhibit the growth of upstart competitors, and (2) made agreements to refrainfrom competing against one another.

- Substantive law requires that the plaintiffs show conscious parallel behavior (Ds were aware of eachother’s actions and engaged in such actions themselves) and some “plus factor” to demonstrate that thebehavior was the result of an agreement between them.

- Issue: How much do the plaintiffs have to plead to survive a motion to dismiss for failure to state a claimupon which relief can be granted? (under §1 of the Sherman Act)

- Whether the challenged anticompetitive conduct stems from independent decision or from anagreement, tacit or express.

- Holding:- Trial Ct.: The plaintiffs have failed to state a claim; the case is dismissed and the plaintiffs will never have

a chance to use discovery devices to see whether the defendants actually did enter into an agreementnot to compete with one another.

- Appeals Ct.: Reversed- Sup. Ct.: Reversed Appellate decision

• Reasoning:o Efficiency: concern over expense of discovery and case management of all cases and expense to

defendanto There are plausible economic explanations to parallel conduct within an industryo Without these requirements, innocent defendants may settle in order to avoid the costly expense

of discovery and trial

Notes:



• A complaint may fail for lack of adequate notice or because of substantive inadequacy – District Courtwhich dismissed the complaint thought the complaint gave inadequate notice.

• Demurrer = same thing as 12(b)(6) motion

Q: How does Rule 8(a)(2) relate to 12(b)(6)?- 8(a)(2) sets forth the standard for the pleader/plaintiff as to the requirements for stating a claim.- 9 works the same way – telling the plaintiff what is needed by way of allegations to put in the complaint- 12(b)(6) enables the defending party to request dismissal – mechanism allows party to test the plaintiff’s

pleading

B. Responding to Complaints. How must a defendant respond? FRCP 7.

1. Motions. How and when should a defendant respond via motion? FRCP 12.- Pleading is not the same thing as a motion, which is a request that something happens- Complaint (pleading) Answer (responsive pleading)- Defendant has 20 days to respond after being served with summons and complaint, or

default occurs

• All legal and factual defenses to a claim for relief must be asserted in the responsive pleading to theclaim. But 7 enumerated defenses may be made by motion before the responsive pleadingis due under Rule (12):

1. Lack of subject matter jurisdictionMay be brought at any time even after judgment is enteredCannot be waivedWhoever wants the case to be in federal court has the burden of establishing

jurisdictionIs not a decision based on the merits

2. Lack of Personal JurisdictionChallenges to PJ are waived unless raised by motion or in the responsive pleadingGenerally does not preclude the plaintiff from refilling the lawsuit against thedefendant in the proper forum

3. Improper Venue:

Challenges are waived unless raised by motion or in the responsive pleadingsCourts are split on who bears the burden of proof A dismissal is immediately appealable as a final order

4. Insufficient Process5. Insufficient Service of Process6. Failure to state a claim for which relief can be granted

Is a descendent of the common law demurrer Tests the legal sufficiency of the party’s claimDefendant is essentially saying: even if everything you allege is true, you have notstated a claim under which the law affords you a remedy

Two reasons a claim may be dismissed:• The pleading asserts a legal theory that is not xognizable as a matter or law•

The pleading fails to allege sufficient facts to support a cognizable legal claim.When deciding on a 12b6 motion courts:• Assume that all the facts alleged in the complaint are true• Will only dismiss the claim if it appears beyond doubt that the pleader can

prove no set of facts in support of the claim that would entitle the pleader torelief.

o Therefore the pleading must allege facts that satisfy each elementrequired for a recovery under some actionable legal theory

• The burden of proof lies with the moving party• Sometimes will issue of postponement of discovery

7. Failure to join a (required) party under Rule 19



Rule 12(b)(6): this motion to dismiss is generally made before the defendant files his answer. Afterdefendant has filed an answer, and the pleadings are complete, defendant can accomplish the same resultby making a Rule 12(c) motion for judgment on the pleadings. (but this is very rare)

12(h): Waiving and preserving certain defensesA party waives any defenses listed in 12(b)(2)-(5) (lack of personal jurisdiction, improper venue, insufficientprocess, and insufficient service of process) if the party makes a 12(b) motion of some sort and fails toinclude these, provided that they were available to him at the time of the 12(b) motion.

12(a): Pleading Timeline1. Complaint

• Filing usually occurs before it is served. Service must then normally occur within 120 days.2. Answer

• Must be served within 20 days after service of the complaint, unlesso Rule 12 motion: if D makes a Rule 12 motion against the complaint and loses, D has 10

days after the court denies the motion to answero Waiver of formal service: If D waives formal service under Rule 4(d), he gets 60 days to

answer3. Reply to counterclaim

• If the answer contains a counterclaim, plaintiff must serve his reply within 20 days afterservice of the answer

How does one serve a motion? FRCP 5.

2. Answers. How and when should a defendant respond via an answer?FRCP 8(b)-(d).

3 ways to answer a complaint:(1) Responsive Pleading – Rule 12(a)

(a) Admit, Deny, or Claim Lack of Sufficient Evidence (has effect of denial).(2) Affirmative Defenses – 8(c)(3) Counterclaims (only if appropriate) – 13(a) and (b)

(a) Must meet same standard in 8(a) as Ps original complaint.

o 8(b)(2): a denial must fairly respond to the substance of the allegation.o A defendant can do two things in an answer: (1) respond to the allegations of the complaint

and (2) raise new matter through an affirmative defense.o Three possible responses to various allegations of a plaintiff’s claim: admit, deny, or claim that

he lacks the sufficient information to admit or deny.o Allegations not denied are deemed admitted; allegations properly denied are “joined,” which

means they are in dispute and ripe for adjudication.

Denialso General denial: very short pleading (denies all allegations)o Specific denial: used in combination with admissions – deny paragraphso Qualified general denial: deny specific portions of claimso 8(b)(5): if a party states they lack knowledge or information about the truth, this has the effect

of a denial.o 8(c)(1): defendant required to raise affirmative defenseso Affirmative defenses differ from denials by injecting new matter into the dispute (ex. D admits

she struck P, but did it in self defense)o Principal claims by defending party are the counterclaim (against opposing party) and cross-

claim (against a co-party)

3. Default. What happens if a defendant does not respond?FRCP 55; 54(c).



• Defaulto 55(a) —Entry of Default. Must file an affidavit stating that they other party “has failed to plead or

otherwise defend.”o 55 (b)(1) If the defendant doesn’t respond within the allotted time, the plaintiff can ask for a

DEFAULT ENTRY from the clerk of court IF the claim is for a certain sum or the sum can becomputed .

i.e. a ministerial duty that can be calculated easily. Not something like pain and suffering.• Getting a default judgment

o 55(b)(1) If claim is for an amount that can be made certain – go to the clerk(55 b 1)Clerk does not have discretion – he MUST make the default judgment unless thedefendant is an infant or incompetent

o 55(b)(2) If the claim isn’t for a sum certain – go to the courtMust apply to the court for a judgment; get a hearing.If the other party has shown up at any point, they must receive at least 3 days notice of application for judgment before the hearing on default judgment; if total silence from otherparty, no notice of the hearing needs to be given.

• Court has a right to decide it needs more time for investigation before giving a judgment

• If a defending party fails to respond in an appropriate and timely way, she may find herself in default.• The plaintiff cannot obtain money or other relief on the basis of a default – instead; she must get a

default judgment, which is enforced like any other judgment• Default: entry in the docket that a person has missed the deadline, not made a filing – does not allow

plaintiff to collect the money yet• Default judgment: actual money

Hypo: A client comes unto your office and tells you that she was sued and has defaulted, although no default judgment has yet been entered. She wants to avoid liability. What should you do?A: You need to prepare a motion to set aside the entry of default under 55(c), and in that 55(c) motion, youneed to show "good cause" to set aside the default. "Good cause" is determined on a case-by-case basis,but normally a court will expect that movant to show that it has a potentially meritorious defense to theclaim and that it was not sitting out and delaying the proceedings in bad faith. The 55(c) motion, of course,will have to be served and filed before a default judgment is entered.

If the judgment has already been entered, what do you do?Once default judgment enters, you're in Rule 60(b) territory when it comes to asking the court, by motion, toset aside the default judgment. The usual ground would be some kind of "excusable neglect" (60(b)(1)) andyou've got up to a year after the default judgment enters to serve and file your 60(b) motion (see 60(c)(1)).

Excusable neglect: the defaulting defendant must convince the court that she was not guilty of culpableconduct, that she has a meritorious defense, and that reopening the case would not prejudice the plaintiff.

C. Other Issues Regarding Complaints and Answers

1. Amendment. When may parties charge their pleadings? FRCP 15.- Matter of course: don’t need court’s permission (don’t need to file and serve a motion) –

FRCP is very liberal in allowing amendments.

- Ex: 2/1: Defendant answers complaint without counterclaims; does not contain personal jurisdiction (timely)

Now – 2/6: filed & served – amended answer with personal jurisdiction defense- When you amend things very late, its problematic, because defenses in claims raised in

pleadings make certain facts relevant – in discovery phase, they know which facts arerelevant because they’re been through the pleading phase – discovery is time-consumingand expensive, and will have to be repeated and redone if complaint or answer isamended late in the game (very inefficient)

- Variance: evidentiary objection- 15(c) : relation back is separate and independent of 15 (a) & (b): assuming that you have

permission to amend



- Relation back: most commonly occurs when amendment asserts a claim or defense thatarose out of the conduct, transaction, or occurrence set out in the original pleading (15(c)(1)(b)) – defending parties have a right to be put on notice within a certain time of theconclusion of events (if you’re already on notice, its easier)

2. Dismissal. When may (or must) parties drop their cases? FRCP 41.

Voluntary Dismissal under 41(a)• A notice is not a motion• A stipulation is an agreement• Dismissed without prejudice: court is not making any judgment one way or the other about the merits of

the suit, so plaintiff is free to re-file it• Dismissed with prejudice: dismissal on the merits, plaintiff can’t bring it again because its been decided• P can dismiss a case prior to D serving an answer – can also get parties to agree to dismiss

Involuntary Dismissal under 41(b)• Could be dismissed by court for several reasons; ex: plaintiff’s attorney acting irresponsibly, plaintiff fails

to comply with rules• D can move for dismissal for P’s failure to prosecute or comply with the Rules• Courts possess inherent discretionary authority to dismiss an action if P does not proceed to trial with

“due diligence.”

3. The Duty of Truthfulness. What provisions assure that parties will be truthful in theirallegations? FRCP 11.

• Rule 11: An answer must be signed by the defendant’s lawyer (or the party, if unrepresented). Aswith the complaint, the attorney’s signature constitutes a certificate that the signer has read thepleading believes it well founded, and that it is not interposed for delay.

• About Rule 11 :o Is limited to written documents

Rationale:• Speech is not as final and researched as writings• It is hard to prove oral statements

o Bad faith is not required to invoke Rule 11 sanctionsUnder Rule 11 ( c) 1(b): court can issue sanctions for violating 11(b) sua spontae but theremust be a showing of bad faith

o Standard of review is objective: what would a reasonable lawyer in the same position have done?o The imposition of sanctions is at the judge’s discretion: he “may” impose them

Rector v. Approved Federal Savings Bank Issue: Whether the 21-day “safe harbor” provision of FRCP 11 is a non-waivable rule of jurisdiction.Holding: It is not a jurisdictional rule and may be waived. (district court’s ruling affirmed)- Note: jurisdictional limits cannot be waived or forfeited, and its running divests the court of power over the

matterSafe Harbor provision: a motion for sanctions shall be served on the opposing party but shall not be filed withor presented to the court unless, within 21 days after the service of the motion … the challenged paper,claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected. Further, themotion shall be made separately from other motions ore requests and shall describe the specific conductalleged to violate the rule.

- Added to Rule 11 in 1993 -- primary purpose was to provide immunity from sanctions to thoselitigants who self-regulate by withdrawing potentially offending filings or contentions within the 21-dayperiod- This rule helps reduce the number of sanctions motions filed in the courts by giving litigants a specificamount of time in which to withdraw an offending filing or allegation before a motion is filed (but if youdon’t raise it, its gone, because its meant to protect you)



- Eichhorn explanation: The “safe harbor” provision of Rule 11 requires a moving party to first serve theviolating party with a motion for sanctions before filing the motion with the court. This gives the violatingparty a 21-day “safe harbor” to conform his conduct to Rule 11 before a court has the opportunity to levysanctions. If the violating party does not conform his conduct to Rule 11 within 21 days, the moving partycan then file the motion for sanctions with the court.

II. DISCOVERY. How can parties learn about each other’s cases before trial?• FRCP applies only in federal court, but most states have adopted discovery rules that largely mirror

them•

3 basic purposes of discovery rules:o Permit the preservation of evidence that might otherwise be lost before trialo Provide mechanisms for narrowing the issues in dispute between the partieso Permit the parties to acquire greater information about their own and the other side’s case

• Discovery rules allow parties to learn, well in advance of trial, what evidence the other side has insupport of its claim or defenses (may lead to a quicker and fairer settlement of disputes), and alsopermit parties to acquire information for the purpose of strengthening their own cases.

• Discovery: process by which parties request information from each other• Disclosure: automatic process – no request necessary

• Scope of Discovery. What kind of information are parties entitled to? FRCP 26(b)-(c).o Parties are entitled to obtain discovery regarding any nonprivileged matter that is relevant to

any party’s claim or defenseo Court may order discovery of any matter relevant to the subject matter involved in the action

(you know if its relevant by looking at the pleadings)o FRE 401 evidence tending to make the existence of any material fact more probable or less

probable than it would be without the evidenceo In order to be discoverable, it is not required that information necessarily be admissibleo Old rule: must be relevant to subject matter instead of claim or defense (reason this was

changed was to narrow discovery)o Its up to the judge to decide (using broad discretion) what kind of restraints he wants to put

on the discovery requestso Can’t go to court without at least trying to work it out

Rule 26(c): allows for a protective order when justice requires to protect a party or person from annoyance,embarrassment, oppression, or undue burden or expense.

United Oil Co. v. Parts Associates, Inc. (2005)- United Oil has to prove that there was notice of the risk of the danger of the oils/chemicals- Causation: look at previous cases, other people harmed, maybe other types of harm that aren’t liver

damages

1. Privilege. What kinds of attorney-client communications are off limits?

• 26(b)(1): Parties may obtain discovery regarding any nonprivileged material that is RELEVANT to theparty’s claim or defense – including documents, identities of people who know of any discoverablematter

- Court may also order discovery of any matter relevant to the subject matter involved in theaction- Limits discovery to information that is “nonprivileged” – classic example of privilegedinformation is attorney-client privilege, which bars inquiry into communications between aclient and her counsel in the course of legal representation

- Privileged info = communication (ex. oral question at a deposition, request for documents) –this is a blanket absolute protection

- 26(b)(5)(A): party must claim the privilege “expressly” and describe in sufficient detail thedocuments, communications, or things not produced so as to enable other parties to assessthe claim

- Attorney-client privilege applies in the course of seeking legal advice, consultation, help – canbe waived like any privilege if one or the other parties to the communication shares it withothers



- Because recognition of a privilege does conceal information, the privileges are narrowlyconstrued and can be waived by disclosure to third parties

• 26(b)(5)(B): When privileged info is inadvertently disclosed – notify the receiving party that itaccidentally happened – after being notified, the receiving party must promptly return, sequester, ordestroy the information

- What if you are requesting information that you don’t believe is privileged? Motion to compelan answer to that discovery question

2. Work-Product Doctrine. What kinds of litigation-inspired documents are off limits?

Work Product Doctrine (information obtained or produced by or for attorneys in anticipation of litigation maybe protected from discovery under the FRCP)- work product is not an absolute work protection as a privilege is

Hickman v. Taylor (still good law – but 26(b)(3) was not adopted yet – this is Supreme Court’s first cut atwork product issue)

• The tug J.M. Taylor sank while engaged in helping to tow a car float of a railroad across the Delaware. The cause of the accident is unknown. Five of the nine crew members drowned. The ownersemployed a law firm to defend them against potential suits by representatives of the deceased crew

members, and to sue the railroad for damages to the tug. Four of the decedents’ claims were settledwithout litigation, but the fifth claimant brought suit in federal court under the Jones Act, naming asdefendants the tug owners, individually and as partners, and the railroad.

• Tug owners admitted that survivors’ statements had been taken, and yet declined to summarize orset forth the contents. They claimed that such requests called for privileged matter obtained inpreparation for litigation and constituted an attempt to obtain indirectly counsel’s private files.

• Issue: What is the extent to which a party may inquire into oral and written statements of witnesses,or other information, secured by an adverse party’s counsel in the course of preparation for possiblelitigation after a claim has arisen?

• Holding: In the court’s opinion, neither Rule 26 nor any other rule dealing with discoverycontemplates production under such circumstances. This attempt to secure information falls outsidethe arena of discovery and contravenes the public policy underlying the orderly prosecution anddefense of legal claims. Not even the most liberal of discovery theories can justify unwarranted

inquiries into the files and the mental impressions of an attorney.** Rule: Discovery of written materials obtained or prepared by an adversary's counsel with an eye towardlitigation may not be had unless the party seeking discovery can establish that relevant and non-privilegedfacts remain hidden in an attorney's file and where production of those facts is essential to the preparationof one's case.

- Where relevant and nonprivileged facts remain hidden in an attorney’s file and whereproduction of those facts is essential to the preparation of one’s case, discovery may properlybe had

- 26(b)(3) protects only materials prepared “in anticipation of litigation.” Courts generally agreethat this language does not require that litigation actually have commenced – it is sufficientthat it is anticipated.

Supreme Court’s issues with plaintiff’s efforts to allow discovery of trial prep materials:1. It would interfere with the confidentiality of trial preparation2. It would allow lawyers to ride on their adversary’s coattails in preparing for trial, by letting opposing

counsel do all the work, and then obtaining the results through discovery3. Lawyers could prospectively end up as witnesses in their own cases if the statements they produced

contradicted other testimony from the same witness

Three categories of work product:1. Discovery is barred as to documents prepared in anticipation of litigation that contain information

that can reasonably be obtained through other means.



2. If the requesting party demonstrates that she has a substantial need for materials developed inanticipation of litigation, and that similar information cannot be obtained through other meanswithout substantial hardship, the court may order production of the materials.

3. Opposing counsel’s thought process in preparing a case, such as legal theories or litigation strategy,(“opinion work product”) cannot be discovered under the rule.

• How to determine if information should be considered work product:a. Is the material a doc or tangible thing?

i. Was it prepared by or for another party?

ii. In anticipation of litigation??1. If the answer to all is “yes” there is presumptive protection under26(B)(3).

b. Does the requesting party have a substantial need for the material in preparing for their case?i. Are they unable to obtain the material by any other means?

1. If answer to both is “yes,” you will have overcome the other side’sattorney work product privilege .

c. Would the material reveal mental impressions, conclusions, opinions, or legal theories of counsel?

i. If yes, in almost all cases it will remain protected.

2. Discovery Devices. How and when can parties request and receive information from theiropponents? FRCP 16(a)-(b).

• Court may order attorneys and any unrepresented parties to appear for one or more pretrialconferences (permit, does not require)

• The scheduling order is a blueprint of pre-trial litigation as a whole, and suggests when the case maybe ready for trial

• District judge must issue a scheduling order either after receiving parties’ report or consulting withattorneys at scheduled conference (must issue order as soon as practicable)

• Scheduling order must limit the time to join other parties, amend the pleadings, complete discovery,and file motions

• Schedule may be modified only for good cause and with judge’s consent

1. Disclosure. What information must parties provide automatically? FRCP 26(a). (focuson (a)(1) & (a)(4))

• Required Initial Disclosures: requires each party to disclose certain information without any requestby another party- 26(a)(1)(A): Required to disclose only that information “that the disclosing party may use to

support its claims or defenses.” (in its case)- Does not force a party to disclose damaging information if the party does not intend to present it

at trial- It is only through interrogatories, document requests, and depositions that a party will obtain

information unfavorable to the responding party- 3 times when parties must disclose: at beginning, at least 90 days before trial, and right before

trial

2. Specific Devices. How can parties depose witnesses, serve interrogatories, andrequest admissions, documents, and mental and physical exams? FRCP 30; 33-36.

• The basic devices for seeking discovery in federal court are interrogatories under FRCP 33, requestsfor production of documents under FRCP 34, and oral depositions under FRCP 30.

• Deponent – witness• To depose someone• To notice a deposition•

Rule 30: Depositions by Oral ExaminationDeposition: sworn examination of a live witness under oath (lawyer asking the questions is one “taking”

the deposition)



• Live testimony is the most effective means of obtaining detailed info from witnesses before the trialbecause counsel gets tot see the party or witness, the witness is required to answer questionsspontaneously, examining counsel can frame follow-up questions based on previous answers, and thedeposition gets the deponent on the record.

• Major drawback: time and expense of conducting depositions

Rule 30(a)(1): allows counsel to take deposition of “any person, including a party”• A party receives a notice of deposition, a non-party receives a subpoena• Subpoena duces tecum: subpoena requesting production of records or requested items• Most evidentiary objections during a deposition are aimed at keeping evidence from being introduced

at trial – thus, answering objectionable questions in a deposition does not prejudice the objectingparty as long as her counsel can still object to the use of the evidence at trial

• When an objection is based on a privilege not to reveal info, such as attorney-client privilege, counselfor the deponent may instruct her not to answer the question (must claim privilege as an objectionexplicitly under 26(b)(5)).

• Can also not answer to enforce a limitation provided by the court• A trial deposition is one that will be used in trial in place of the witness’s live testimony (as opposed

to a discovery deposition)

Rule 30(b): gives the trial judge the requisite discretion to make a judgment as to whether discovery shouldbe allowed as to written statements secured from witnesses.

Rule 30(d)(3): motion to terminate or limit

Rule 33: Interrogatories to Parties- Interrogatories are questions propounded by one party to another, seeking information relevant to the

issues in dispute (to get info from a non-party, must subpoena)- Interrogatories are inexpensive means of getting information from other parties – most effective for

obtaining basic background information- “Contention interrogatories”: force an opponent to specify grounds of the general claims raised in a

complaint or answer- Can raise objections to interrogatories – privilege, etc. (33(b)(4))- 33(a)(1): there is a presumptive limit of 25 interrogatories (including subparts) per party- Procedures for using interrogatories:

1. Must be answered separately and fully in writing unless an objection is interposed in lieu of an

answer2. Answers and objections are due within 30 days after being served3. The party, not their attorney, must answer the interrogatories4. If the responding party determines that a particular interrogatory is outside the scope of

discovery, the party may object to the question in lieu of answering (but must be stated withspecificity)

- 33(d): Option to produce business records- Instead of producing a document with detailed information, you may allow the interrogating party access

to the records themselves- May do this is the burden would be substantially the same for either party

Rule 34: Production of Documents and Things- Permits a party to require another party to produce for inspection, copying, or testing all relevant

documents or other tangible things. (only sent to parties)- Non-parties: can use a subpoena to produce something from non-parties- 30 days to respond (in writing)

Rule 35: Medical Examination- When the health, physical, or mental condition of a party is in controversy, the court may order the party

to submit to a physical or mental examination by a suitably licensed or certified examiner.- Unlike other discovery devices, this rule REQUIRES a court order (but will only be appropriate with good

cause and when the mental/physical condition is in controversy)- Party or someone under the party’s custody can be examined (child, person under guardianship or

custody)

Rule 36: Requests for Admission



- Used to determine what issues are and are not in dispute. Moves along a proceeding on minor issues.- Tool to acquire more detailed knowledge of the evidence and to narrow the issues- If recipient ignores requests for admission and doesn’t respond, after 30 days it acts as an admission- Similar to pleadings, can either admit, deny, or object to a particular request for admission

4. The Duty to Supplement. When must parties update the information they provide? FRCP26(e).

• Ongoing duty to continually update and disclose new information

For non-expert witnesses, there is no duty to update everything they may have said in a deposition (becauseits almost impossible/unfeasible to do so)

5. Sanctions. What can a party do if his or her opponent refuses to provide information?FRCP 26(g); 37.

• 26(g): you make certifications that your request or response to request or objections are complete tothe best of your knowledge after a reasonable investigation – they are consistent with the rules

• Similar to Rule 11 – but 11 does not apply to discovery – only 26(g) does (both objective good faithtests)

• Under 26(g)(1)(A)- any disclosure is complete at the time it is made• 26(g)(3) – must be sanctioned for violating rule

Washington State Physicians Ins. Exchange & Ass’n v. Fisons Corp.• Facts: Young girl suffered seizures. Excessive amounts of theophylline in her system caused the girl to

develop severe and permanent brain damage. The drug company Fisons Corp. produced SomonphyllinOral Liquid, the theophylline-based medication prescribed by the child’s doctor. Discovery request madeto drug manufacturer, Fisons, by plaintiff and doctor.

o At the time of the request, Fisons had an internal memo referring to the dangerous nature of theophylline

o When asked for documents, Fisons said they would produce any letters related to the product in areasonable time – but they don’t include the “dear doctor” letter – but the request was not forletters about the product, it was for letters related to the ingredient

o Child’s family anonymously received a letter stating that the drug company was aware of theingredient’s life-threatening toxicity

• Issue: Whether a physician has a COA against a drug company for personal and professional injuries,

which he suffered when his patient had an adverse reaction to a drug he prescribed. He claims that thedrug company failed to warn him of the risks associated with the drug.

• Holding: Court chooses to review the sanctions decisions under the abuse of discretion standard, whichrecognizes that deference is owed to the judicial actor who is “better positioned than another to decidethe issue in question”

• Court imposes sanctions – “in this case, sanctions need to be severe enough to deter these attorneys andothers from participating in this kind of conduct in the future”

• Rule 37(a)(1): party must first move for an order compelling disclosure or discovery, but must firstinclude a certification that he has tried in good faith to confer with the other party who failed to makedisclosure/discovery

• 37(a)(4): if you respond, but respond evasively or incompletely, that is just the same as failing to answeran individual interrogatory question or failing to give up documents

• 37(b): failure to comply with a court order – court can issue an order forcing party to respondo disobeying a court order is very serious

• 37(c): trying to use information at trial or in a summary judgment motion that you were supposed todisclose/update but didn’t, you can’t benefit from it

• 37(d): total failure to appear for deposition – sanctions

Q: When do Rule 37(b)(2)(A) sanctions apply and when do Rule 26(g) sanctions apply? Do they ever overlap,and if so, which will the court impose?A: The sanctions listed in 37(b)(2)(A) apply, of course, if a party disobeys an order as described in (b)(2)(A),but they're also cross-referenced (except for contempt) in 37(c)(1) (Failure to Disclose or Supplement) and in37(d) (Party's Failure to Attend Its Own Deposition, Serve Answers to Interrogatories, or Respond to aRequest for Inspection). By its terms, 26(g) applies to "every discovery request response, or objection" that



can be signed. The rule requires a signature, and the person or people signing make the certifications listedin (g)(1). Under 26(g)(3), a court has broad discretion, on motion or on its own, to issue sanctions (g)(3) if adiscovery document was signed in violation of any of the certifications. These sanctions could include someor all of those listed in Rule 37(b) (except contempt, if the violation didn't violate a court order) or whateverother fates the judge can fashion. You saw 26(g) being applied, for example, in Fisons. Rule 37(b), (c), and(d) didn't apply in that case because Fisons's behavior didn't violate an order or involve the kinds of omissions described in 37(c) or (d). For an example of when the sanctions could overlap, see the last of theRule 37 hypos we discussed in class. The Rule 37 hypos and answers from that day are up on TWEN, andthe question is #4. Question #5 is another example of 26(g)/37 overlap, but we didn't discuss that questionin class because it's largely the same as question #4. If both Rules apply, the court "must" issue someappropriate sanction under 26(g), but that sanction "may" be one of the sanctions that happens to appear in37.

E-Discovery (Guest Speaker)• ESI: Electronically Stored Information (evidence)• It is now malpractice not to request electronically stored information• ESI is broadly defined under the FRCP (anything electronically stored, no matter where it is)• Limitations of paper evidence: what you see is what you get• Metadata: “data about data” - electronic evidence; reveals important information about document• Metadata is like a card catalog for the computer• Common law duty to preserve evidence• Initial disclosures (FRCP 26): describe by category and location all electronically stored information

without awaiting a request• Rule 26(f) report promotes early discussion about:

o Scope of e-discoveryo data accessibility and retrieval issueso how information will be exchangeo identified or potential problems

• Requesting and Producing E-data (FRCP 34)o ESI is not reasonably accessible if there is undue burden or cost

• Deposition of IT Staff (FRCP 30)• Safe Harbor (FRPC 37): no sanctions imposed for failure to produce e-data lost or destroyed in routine,

good faith operation or e-information system• Third Party Subpoena (FRCP 45): can subpoena a “designated” ESI from non-parties•

Requests for deleted ESI: limited to cases where computer itself is evidence (e.g. trade secrets cases)

Zubulake cases:- Federal employment discrimination case- Two year discovery period- UBS failed to preserve emails- Lawyers botched e-discovery in case

Coleman v. Morgan Stanley (state case):- State fraud, negligent misrepresentation, aiding and abetting and conspiracy case- Sanctions included striking all defenses, jury instruction to take allegations in complaint as true- $1.45 Billion verdict

III. JOINDER. May parties include additional claims and parties in their lawsuits?A. Joinder of Claims. What kind of claims can parties add to their suits?

- Party: a person/entity who either has asserted a claim in the action OR is defending against aclaim in the action, OR both.

1. In general. Can a party include many unrelated claims against an opponent? FRCP18(a); 42.

- FRCP 18(a): a party seeking relief from an opposing party may join with his original claim anyadditional claims he has against that opposing party (broadest of the basic joinder rules)

- Any claims; don’t have to be related (MAY join them)- No common transaction or occurrence requirement under this rule



- Applies not only to original plaintiff, but also to any party seeking relief against another party,whether on a counter-claim, cross-claim, or third party claim

2. Counterclaims. When may/must a party against whom a claim has been made allegehis or her own claims against the opponent? FRCP 13.

-FRCP 13: authorizes a defending party in a suit to assert claims back against a party who hasclaimed against him (counterclaim)

- 13(a): compulsory: if the defending party’s counterclaim arises from the same transaction oroccurrence as the claim again him, he must assert it in the original action or lose it

- 13(b): permissive: allows a defendant, once brought before the court, to settle all his claimsagainst his opponent without having to file a separate lawsuit

3. Cross Claims. When may parties on the same side of the “v.” assert claims againsteach other? FRCP 13(g).

-FRCP 13(g): provides for assertion of cross-claims arising out of the same transaction oroccurrence as the main claim (ONLY)- a cross-claim is a claim asserted by one party against a co-party (someone on the same side of the “v” as the claimant)- Joinder is optional under this rule

B. Joinder of Parties. When can existing parties add others to the suit?

1. Basic Joinder. When can two or more parties sue or be sued together? FRCP 20.• 20(a)(1): authorizes (doesn’t require) plaintiffs to sue together if they assert claims arising out of the

same transaction or occurrence and their claims against the defendant will involve a commonquestion of law or fact

• 20(a)(2): allows plaintiff to sue multiple defendants in a single action if the same criteria are met:o Assert any right jointly, severally, or in the alterativeo Arising from same transaction or occurrenceo Any common question of law or fact common to all defendants

• Note: Rule 19 deals with parties that HAVE to be brought in; Rule 20 deals with parties that CAN bebrought in. Remember, you also have Rule 14, but in that scenario, have to ensure that there is anissue of substantive law that involves 1) joint liability and 2) Either indemnity or contribution.

2. Impleader. When can a defendant bring in a new party and assert a claim against himor her? FRCP 14.

• 14(a): gives a defendant a limited right to implead (bring into suit) new parties against whom shehas claims related to the main action

• Under this rule, the defendant may bring in a person not yet a party to the suit who may be liableto the defendant for all or part of any recovery the plaintiff obtains on the main claim

• In many tort cases, third parties are impleaded for contribution, to obtain a judgment that thethird party is liable to pay the main defendant part of the damages she is ordered to pay theplaintiff

• The third party defendant’s liability will depend on that outcome of the main claim – theimpleaded party may escape liability by defeating either the plaintiff’s original claim or thedefendant’s derivative claim against her

• The impleader claim is treated like an original suit for pleading, service, and other purposes

(defendant, as “third party plaintiff”, must file a third party complaint against the impleaded“third party defendant”)• Impleading a third party defendant does not affect the court’s jurisdiction over the original claim• The third party is also disregarded in determining whether venue is proper• 14(a)(2)(C): third party may assert against the plaintiff any defense that the third party has to the

plaintiff’s claim• Indemnification: enables one tortfeasor to shift the entire burden of the judgment to another• Contribution: equalizes the burden on the wrongdoers by requiring each to pay his own

proportionate share of damages• Why might a court deny a motion to implead? If it’s going to delay the suit

Markvicka v. Brodhead-Garrett Co.



- party may implead someone who is already liable to you, or who may be someone who is liable toyou

First General Services of Charleston v. Miller v. Servicemaster, Inc. (SC)Rule 14 in the SCRCP is very similar to Rule 14 in the FRCP, except that the SRCRP does not includeAdmiralty or Maritime Claims as 14(c) in the FRCP does. Instead, Rule 14(c) in the SCRCP addresses joinderas a plaintiff or defendant. It states that a party may move or the Court may order on its own that a partydesignated as a third-party defendant by joined as a plaintiff or defendant (thereby eliminating thedesignation of “third party”) under Rules 19 or 20 where justice and efficiency so require.

IV. RIGHT TO JURY TRIAL. When and how may parties request juries? FRCP 38.

- Amendment VII: right to jury in suits of common law of > $20- Courts have never held that the Seventh Amendment is applicable to states. Thus, in a civil case in statecourt there is no federal constitutional right to a jury, though a state constitutional or statutory provision mayensure the right- Courts of equity – remedies: specific performance, rescission- Courts of law – money damages

Chauffeurs Local 391 v. Terry - Facts: The union and a trucking company were parties to a collective-bargaining agreement that governedthe terms and conditions of employment at the trucker’s terminals. The company implemented a change inoperations that resulted in the elimination of some of its terminals and the reorganization of others.Employees who were laid off filed an action alleging that the compay had breached the collective-bargainingagreement and that the union had violated its duty of fair representation.(action dismissed against company later when it filed for bankruptcy)- Issue: Whether an employee who seeks relief in the form of backpay for a union’s alleged breach of its dutyof fair representation has a right to trial by jury.- Holding: Yes, the Seventh Amendment entitles this plaintiff to a jury trial.- Court uses analogy to find comparative COA- Legal comparison: attorney malpractice – union represents workers like attorney represents client

Can a defendant demand a jury trial? Yes, 38(b) says “a party may demand a jury trial.”38(d): a party can waive a right to a jury trial unless its demand is properly served and filed.

Notes:- 7 th Amendment provides for suits at common law, which are suits in which legal rights are to be ascertainedand determined, as opposed to those were equitable rights along are recognized and equitable remedies areadministered- Is the remedy legal or equitable in nature? Legal

V. SUMMARY JUDGMENT. When can a judge decide a case without a trial? FRCP 56.

- Rule 56 authorizes the court to enter judgment whenever it appears that “there is no genuine issue as toany material fact and that the movant is entitled to a judgment as a matter of law.”

- Motions for summary judgment are filed before trial and if the motion is granted, judgment is enteredwithout benefit of a trial (or a jury)

- The plaintiff can move for SJ at any time after 20 days have passed from commencement of the action, orafter the other party has made a motion for SJ, with or without supporting affidavits

56(c): no genuine issue as to any material fact- a material fact makes a difference as to the outcome of the suit- genuine issue: could go either way in trialAND that the movant is entitled to judgment as a matter of law

56(d): can move for SJ on the extent practicable, on part of the issue (one less thing you have to prove attrial)

56(e): kinds of attachments or exhibits you can use in court- affidavit: written statement that is signed under oath under penalty of perjury – basically says, if we go to

trial, they will testify the same way



- affidavits need to be based on firsthand testimony

Two basic situations in which SJ is appropriate:1. The parties may agree on all the facts and their dispute is entirely about the law - whether liability

attaches under the particular circumstances2. When the parties disagree about the facts, but there is no “genuine” dispute – that is, one side has so

little evidence that no reasonable jury could find for that side

12(b)(6)= legally insufficient56= factually insufficient

- It is possible, but rare, to make a SJ motion before answering the complaint

How summary judgment is different from the Rule 12 motions:• Court looks beyond pleadings and considers all evidence in written form• Court does not assess credibility• Court views evidence in a light most favorable to the non-moving party• Court makes its ruling on the basis of affidavits

Anderson v. Liberty Lobby, Inc.• Facts: Willis Carto is the founder of Liberty Lobby, The Investigator Magazine published two articles that

portrayed Carto as neo-Nazi, anti-Semitic, racist, and Fascist. LL files a diversity libel action.• Issue: Whether the clear-and-convincing evidence requirement must be considered by a court ruling on amotion for summary judgment under Rule 56 in a case to which NY Times v. Sullivan applies.• Holding: Yes; reversed. Where the factual dispute concerns actual malice, clearly a material issue in a NY

Times case, the appropriate SJ question will be whether the evidence in the record could support areasonable jury finding either that the plaintiff has shown actual malice by clear and convincing evidenceor that the plaintiff has not.

• Defendants move for SJ and asserted that because the article concerns public figures, they are requiredto prove their case under the standards set forth in NY Times v. Sullivan (1 st Amendment requires plaintiff to show that in publishing the defamatory statement the defendant acted with actual malice – “withknowledge that it was false or with reckless disregard of whether it was false or not.”) Defendants saythey did not act with actual malice and submitted as proof the affidavit of the author of the articles.

• Court says that only disputes over the facts that might affect the outcome of the suit under thegoverning law will properly preclude the entry of SJ.

• Burden of production (burden of proof): the obligation of one side to come forward with evidence tosupport its claim

• Burden of persuasion: the degree of certainty the fact finder must have before it can find for one side• In most civil cases, the standard is “preponderance of the evidence” the fact finder must believe that

the claimant’s version of events is more probable than not• If the fact finder finds that the evidence is evenly balanced the party with the burden of persuasion must

lose

Celotex Corp. v. Catrett • Facts: Respondent alleges that her husband’s death resulted from his exposure to products containing

asbestos manufactured or distributed by 15 named corps.• Holding/Rule: The second type of summary judgment motion is the Celotex-type motion, in which the

defendant points out the absence of evidence supporting the plaintiff's position. A Celotex motion isunusual in that it essentially places the burden of proof on the nonmovant. In both types of motions, oncethe defendant has satisfied its initial burden of production, the burden shifts to the plaintiff to show somefactual basis that would arguably entitle him to a judgment

• Defendant can get a SJ motion granted after Celotex by showing:o Affirmative motion: that the facts show the claim is impossibleo No evidence: that the plaintiff does not have enough facts to show that the claim is possible

• Therefore, the standard for SJ depends on whether the plaintiff or defendant is making the motion

• Rationale: if the party can’t prove it now then they can’t prove it at trial so we might as well avoid theexpensive trial (Criticism: closes off access to courts)



• 56(e): motion must be properly supported so that opposing party may not rely merely on allegation ordenials in its own pleading

• 56(f)(2): If non-moving party can’t get access to its proof fast enough, it can respond with just that andask for a continuance

Dismissal for Failure to State a claim Compared to Summary Judgment

Rule 12(b)(6):- a defendant may move to dismiss the plaintiff’s complaint on the ground that it fails to state a claim that

entitles the plaintiff to any form of relief (the “wrong” that the plaintiff describes in the complaint is notrecognized as a violation of any legal rights)- Courts give every benefit of the doubt to the plaintiff in deciding the motion- Summary judgment is not meant to try the facts but only to determine whether there are genuinely

contested issues of material fact.

Summary Judgment:- Designed to allow early resolution of cases in which the plaintiff meets the minimal burden to plead the

elements of a compensable claim, but cannot prove one or more of those elements- Summary judgment: entry of judgment by the court in favor of either the plaintiff or defendant without

trial – no disputed issues of material fact to be tried and the moving party is entitled to judgment on theundisputed facts

- SJ also provides an avenue for resolution of cases in which the parties agree on the underlying facts but

disagree as to the legal implications of those factsVI. POST-TRIAL MOTIONS. What motions can a party make after evidence has been presented?

A. JMOL (Directed Verdict). When can a judge take the case away from the jury during atrial? FRCP 50(a).

• If a party has been fully heard on an issue during a jury trial and the judge finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue, the courtmay (a) resolve the issue against the party; and (b) grant a motion for JMOL

• If reasonable minds can differ as to the result, the case is for the jury, not the judge• Used to be called directed verdict, now it is called a motion for judgment as a matter of law• 50(b) – renewed motion for JMOL – used to be JNOV• Judge may deny JMOL initially before the heading in order to avoid the appeals court overturning the

JMOL, can always use it after the evidence is presented

• The standard : “If facts and evidence are in favor of one party to the point that the court believesthat reasonable men could not arrive at a contrary verdict, then the granting of the motion is proper.”

o Judge cant determine credibility issues, so he accepts everything the P puts up and gives itthe maximum credence in order to determine if JMOL should be granted. Thus, he ignores Dsevidence that contradicts Ps evidence because he’s looking at it in the light most favorable tothe P.

• Even if a judge denies summary judgment, a JMOL can still be made at trial.• If a judge rules against your JMOL and the verdict comes against you, still move for a JNOV and a new

trial.

Pennsylvania R.R. Co. v. Chamberlain (classic case on directed verdict)• Facts: Chamberlain’s suit sought recovery from the RR co. for her husband’s death. She alleged that

negligence of other employees of the railroad caused him to fall under a train while he was sortingrailroad cars in a switching yard.

o Every employee testified that no collision occurred between the string of 9 cars (plaintiff saysthat this collision caused decedent’s fall)

o Bainbridge (employee) – testifies for plaintiff – says he heard a crash• Issue: In this case, proven facts give equal support to each of two inconsistent inferences; therefore,

JMOL must go against the party upon whom rests the necessity of sustaining one of these inferencesas against the other, before he is entitled to recover.

• Holding: Where plaintiff’s case is based upon an inference, the case must fail upon proof of undisputed facts inconsistent with such inferences.



• The trial court was right in withdrawing the case from the jury because the evidence is overwhelmingon defendant’s side – a verdict in plaintiff’s favor would’ve rested upon mere speculation andconjecture (inadmissible).

• JMOL: looking at evidence in light most favorable to non-moving party

B. Renewed JMOL (JNOV). When can a trial court enter a judgment that goes against a jury verdict? FRCP 50(b)-(e).

• The JNOV motion is essentially a delayed or renewed motion for a directed verdict• Standard for granting the motion: same as that for directing a verdict (either motion will be

granted if the opponent’s evidence is so weak that no reasonable jury could have reached averdict for him)

• The JNOV motion asserts that the jury acted irrationally, is disregard of the evidence in reaching averdict for the party opposing the motion

• Limitations of JNOV:o Motion must be filed within ten days of the entry of judgment on the jury’s verdicto A party may only move for JNOV after the verdict if he made the same motion (for

JMOL/directed verdict) before the verdict (that’s why this is a RENEWED motion)• It is permissible to seek JNOV after the verdict but before the entry of judgment• By requiring the motion before the jury goes out in order to preserve the right to move for

judgment after the verdict, Rule 50(a)(2) prevents a party from “sandbagging” his opponent byraising defects in the opponent’s evidence after the jury has been discharged, when it is too lateto cure those defects

C. New Trial. When can a party receive a new trial? FRCP 59.• A judge may deprive a party of a verdict by granting a new trial under Rule 59 – the grantof a new trial does not end the case but leads to a second trial on all or part of the case• Two general categories of cases in which the courts have traditionally granted new trials:

1. Errors in the trial process (that may taint the jury’s decision-making process)2. If the judge believes that the trial process was fair but the result is clearly wrong (if the jury’s verdict is against the clear weight of the evidence)

• In making a new trial motion, the judge may consider the credibility of the witnesses –unlike JMOL, where the judge has to assume the truth of the evidence for the non-moving party• Judge may also grant partial new trials in appropriate cases (ex. ordering a new trial as todamages only)• Appellate standard of review: different for new trials for trial error (abuse of discretion) andverdicts against the weight of evidence (de novo) - personally from my own opinion (don’t rely on

jury’s ruling), assessing credibility myself – “13 th juror standard”• A rehearing after non-jury trial differs significantly from a new trial in a jury case:

o New jury must be appointed and start over from square one, but judge does nothave to start over (already heard the evidence) – Rule 59(a)(2)

D. Relief from Judgment. When can a party have a case reopened? FRCP 60.• 60(b)(2): evidence existed during discovery but couldn’t find it• Judgment is void: means court did not have jurisdiction to render the judgment

Dadurian v. Underwriters at Lloyd’s of London• Facts: Dadurian insured 12 pieces of specialty jewelry with Lloyd’s. He claims that he was robbed in

his home and all of the jewelry was stolen. Under investigation, Dadurian made false and fraudulentstatements under oath, and Lloyd’s refused to indemnify him for the claimed losses. Dadurian bringssuits seeking compensation under the policy.

o Lloyd’s moved for JNOV, or in the alternative, for a new trial. District court denied, and thisappeal followed.

o JNOV standard: no reasonable jury could’ve ruled for the plaintiff based on the evidencepresented

o Lloyd’s says: (1) Dadurian lied about purchasing and owning the jewelry, (2) Source of purchase funds was certain bank loans

• Issues: (1) What is the standard by which a district court decides whether to grant a new trial? (2)What is the standard of review by which an appellate court reviews the decisions of the district court?



• Holding: A new trial may be granted even though there is sufficient evidence to preclude JMOL. Jury’sverdict was against the great weight of the evidence - remanded for new trial.

o In new trial, new jury will look at both the evidence of whether he purchased the jewelry andwhether he lied about where the funds came from.

• This set of facts show us the difference between the “no reasonable juror standard” and the weight of evidence standard

VII. FORMER ADJUDICATION DOCTRINES.

A. Res Judicata (Claim Preclusion). When is a party barred from relitigating a specificclaim?• A claim is extinguished and replaced by a judgment. Conversely, if a party loses, their claim is

barred by the adverse judgment.• Res Judicata encourages parties to take full advantage of the Rules to present their claims

initially, since they know they won’t get a second chance.

** 4 prerequisites for res judicata:(1) There must be a final judgment;(2) The judgment must be “on the merits;”(3) The claims must be the same in the first and second suits; and(4) The parties in the second action must be the same as those in the first (or have been represented

by a party to the prior action).

• Federal courts and many states have adopted this standard: a party who has asserted a right torelief arising out of a particular transaction or occurrence must join all claims she has arising fromit, or the omitted claims will be barred by res judicata (mirrors the test for allowing initial joinder)

• Under this test, preclusion turns on the right to join the claim in the original action, not onwhether the claim actually was asserted (claims do not need to have been litigated to be barredin a later action, they need only to have been available to plaintiff in first suit)

• A judgment need not be right to preclude future litigation; it need only be final and on the merits• General rule is that court will apply the law as it stands when the pending appeal is decided, not

the law as it stood at the time of trial.• On the merits: most jurisdictions will say that a 12(b)(6) motion to dismiss is on the merits

Res Judiciata generallyMajor sub-issues:• Claim splitting – i.e. one suit for property damage, one suit for personal injuries.

o In most states, this doesn’t work – since both types of damages were suffered in the sameincident, they are deemed to be a single “claim.”

• Compulsory counterclaimo If defendant fails to assert a claim, he loses it

B. Collateral Estoppel (Issue Preclusion). When is a party barred from relitigating aspecific issue?

• What’s the difference? Res judicata prevents the relitigation of any claim (e.g., a party’s rightto recover arising from a given transaction or occurrence), while collateral estoppel prevents therelitigation of an issue within an action that’s not barred by res judicata.

• Collateral estoppel is more narrowly focused – it only precludes a party from relitigating issuesthat were actually litigated and decided in a prior action• i.e. if an issue could have been raised in the first case but was not explicitly raised and

decided, collateral estoppel will not bar litigation of that issue in a subsequent action.• Goals of collateral estoppel: fairness and efficiency

• Prerequisites for collateral estoppel:1. The issue in the second case must be the same as the issue in the first2. The issue must have been actually litigated3. Even if an issue was litigated in a prior action, collateral estoppel will not bar relitigation

unless the issue was actually decided in that action



4. Usually, collateral estoppel will not apply unless the decision on the issue in the prior actionwas necessary to the court’s judgment.

- Who can be estopped by collateral estoppel? There is a due process problem with estopping a 3 rd

party from also asserting a suit after the first suit

Nonmutual Collateral Estoppel – “the obscure kingdom”• Nonmutual collateral estoppel goes a step beyond the basic doctrine by allowing a new party to

invoke collateral estoppel against a party who litigated and lost on an issue in a prior action• True strangers to the first action cannot be collaterally estopped by the former judgment• In every nonmutual estoppel situation, the estopped party must have been a party in the first suit

and therefore has had his chance to litigate the issue• When SupCt first approved use of nonmutual collateral estoppel, it noted the unfairness and

waste of judicial resources that flows from allowing “repeated litigation of the same issue as longas the supply of unrelated defendants holds out.”

• Whether to allow nonmutual estoppel is always going to be within the court’s discretion• Factors in using discretion:

- Procedural differences- Motivation of losing in first litigation- Due process – party must be there to make his argument the first time around

Defensive Nonmutual Estoppel• Defensive use occurs when a defendant seeks to prevent a plaintiff from asserting a claim the

plaintiff has previously litigated and lost against another defendant

Offensive Nonmutual Estoppel• Offensive use usually involves a new plaintiff who seeks to borrow a finding from a prior action to

impose liability on a party who was a defendant in the prior action

Suit 1: P 1 D (Defendant loses on Issue A)Suit 2: P 2 D (New plaintiff invokes collateral estoppel to establish Issue A in her suit

against D)

• Nonmutual collateral estoppel, whether offensive or defensive, is a form of collateral estoppel – assuch, it must meet all the of the basic prerequisites for application of estoppel:

o Issue was the sameo Issue was actually litigated and decided in the prior actiono Issue was necessary to the judgment in the first action

• In nonmutual preclusion situations, the court must consider these basic requirements as well asadditional factors of justice – such as whether the party who has already litigated an issue had a fulland fair opportunity to contest the issue in the first action

o Procedures end. differenceso “wait and see” problems – people let someone else sue first, then they sue if the first is

successfulo Prior inconsistent decisions (mixed record)

Collateral estoppel generallyMajor sub-issues:• Issues actually litigated and decided

o Default judgments – no collateral estoppel effect on the defendanto Necessary to outcome – if the first suit would’ve come out the same way even if the issue had not

been decided at all, or decided differently, then collateral estoppel won’t apply to that issue

Res judicata v. Collateral estoppel• Where the first suit was between the same parties as in the second suit, and involved in the same claim

res judicata



o If the requirements for res judicata have been met, the case is over – the claim in the second suitis merged into the earlier judgment or barred by the earlier judgment

• Where the second suit involves at least one different party than the first suit, or where the second suitinvolves a different claim than the first suit collateral estoppel

CE resolves a particular issue, but not necessarily

Civ Pro 1, Spring 2010, Eichhorn

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Transcript of Civ Pro 1, Spring 2010, Eichhorn