Civ Pro II Outline

I. Preparing for trialA. Discovery

1. Scope

i. Before FRs

New standard- party can discover info from regular activities of other party, but NOT info the party has exclusively devoted to proving its own case (work-product privilege). Kelly.

Relevance- common-sense judgment.Concern shifting costs to Ps will block meritorious suits.

ii. FR 26Party can discover:

1) Any matter relevant to claim or defense of any party (narrower than FR 34)You must request (FR 34) docs party doesn’t plan to use (if you want)Only requires description until you ask (FR 34) for production

2) IF it is not privileged (see FR 26b1)3) Reasonably calculated to lead to admissible evidence. FR 26b1.

FR 26 (a)(1)(d)- mandatory disclosuresA party has 14 days after FR 26f conference with other side to turn over to other side:

1) names of people likely to have relevant info2) copies or descriptions of documents that support its claim or defense3) any computation of damages (usually part of #2)4) any insurance policy or agreement relevant to the case.

NOTE- this is without being asked.

FR 26 (b)(1) “not privileged”- FR 26 (b)(3) Work-product privilege1) Work product privilege applies to materials prepared in anticipation of

litigation.2) Can be discoverable on showing of substantial need or undue hardship

Party can’t get info w/o substantial need or undue hardship. Also how important the info is to the case.

3) BUT even with #2, a party can never get the mental impressions/strategy of the other side. Hickman Part II. Core work product.

FR 26 (b)(1) scope- “any matter not privileged” means absolute privilege.Most privileges have an exception, but not as explicit as WP, a qualified privlege.

FR 26 (b)(4) Expertsa) Party can depose any person ID’d as an expert whose opinions may be used at

trial.b) If A rteains an expert but does not plan to use him at trial, B can depose him

under FR 35 (b) or by showing exceptional circumstances- impractical for B to get same ev by other method.

c) B may have to pay A rsnbl expenses and fees for getting that.

FR 26 (b)(5)If a party claims privilege, it must describe material and why it is priviliged.

FR 26 (b)(2)- Proportionality requirement in scope of discovery.Court can limit discovery if:

1) it would be duplicative2) OR party seeking discovery already had ample opportunity to disc. the info.3) OR likely gain of discovery is low relative to cost.

FR 26c- protective ordersCourt can prohibit disclosure Movant must show:

1) good cause2) good-faith effort to confer with other side first3) not particularly embarrassing or burdensome

FR 26d- party must confer w/ other party before requesting discovery from court.FR 26f- party must confer w/ other party to develop plan for discovery.

2. Mechanics

1) Oral deposition2) Deposition on written questions. Can be served on nonparties.3) Interrogatories. Only for parties. Limit = 25.4) Docs/prop5) Exam6) Requests to admit

FR 30a Party can depose anyone.Party doesn’t have to subpoena a non-party deponent, but if it does not, it cannot require his presence.BUT if a party does not subpoena a non-party, and he doesn’t show up, but the other party does, party seeking deposition can be forced to pay costs of other party’s attendance.

FR 30c- Deposition rules = evidence rules.CAN ask a deponent anything that may be within his knowledge.CAN’T ask for hearsay. Opposing lawyer must object on record for right to object at trial. Witness still has to answer over an objection.UNLESS: lawyer for witness finds deposition is being done in bad faith. He must take that matter to the judge.

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FR 31- service. All parties to a case must be notified of and are allowed to be present at any deposition.A party can’t do more than 10 depositions. You can’t depose one person twice without permission.

FR 33 Interrogatories

Question or series of questions.Only parties.Party must do research to find and provide answers available to it. FR 33 d- business records. Party can respond by turning over all records BUT must give directions as to where to find requested info.

FR 34 Requests for production of documents or propertyApplies to nonparties. Broader than FR 26. Cummings.Ask for docs by subject matter, category, limit by time (etc.)

Problem- petitioner often unable to limit request enough.Also a party can avoid discovery because request was too specific. Courts tend to read requests liberally to prevent parties from hiding relevant info.Fishing expedition- claim that a party is requesting info too broadly, solely to inflict cost or recover irrelevant info.

FR 35 Physical exam- requesting party must get court order.When P puts his phys condition in issue, court will grant order. Schlagenhauf.Requesting party must show clear relevance and usefulness of exam.FR 35b- if court grants request for phys exam, and patient wants to see the report, he must waive doctor-patient privilege and submit any other doctor’s reports that are relevant. FR 35a- When injury happened to someone not competent to bring a lawsuit, other side can get exam of the person alleged to be injured.

FR 36 Requests for admission- party can demand other side answer yes-no or admit-deny questions. Used to streamline info that will be used in trial.

FR 37 Consequences for actions in discovery. 37c- failure to disclose, false or misleading disclosure, failure to admit. You don’t have to admit something you don’t think the other side will be able to prove.Respondent has duty to find answer. Kelly. Duty to correct errors- supplement prior responses if you find mistakes or learn more info.- a continuing obligation to fulfill discovery requests. Only depositions don’t continue.

Non-party options to avoid costly discovery requestFR 26b2, FR 26c. FR 45- court can quash a subpoena to limit exposure of a nonparty.

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II. Finding the applicable law

EXAM- consider the state law very carefully to see possible conflict w/ fed law.

1. Unlikely for a court to find an FR is not consistent w/ REA or Constitution bc this means SCOTUS, Congress, and rules advisory committee were all wrong. (see Burlington)

2. Theory, bc Walker was not perfectly on this track.

3. Byrd is an outlier. It can be invoked, but the argument will be hard to win, particularly if the “countervailing fed interest” is something different that 7th Am. jury trials.

Hardest question is often the first- is there a codified fed law on point?

Walker- fed rule looked obviously on point, yet court rejected.Stewart- fed rule (statute) ruled not on point, but there was strong counterargument. (AL CL- No effect gvn 2 fm selection clauses.

Fed stat-courts may transfer a case=discretion-so arg it doesn’t have to be on point/directly conflict.

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Hyp. New FR that personal injury claims don’t accrue until P discovers.First- Is there a codified fed rule on point (sufficiently broad to control or directly conflicts).Here- hard to argue the new FR does not govern SOL.Second- is it consistent w/ REA? (relate to enforcement of rights, not substance of rights).D can argue it affects his substantive right to only have to worry about a suit for so long. Also can be seen to redefine causation and injury.Third- Consistent w/ Constitution? (arguably procedural).- same counterargument.SO- string argument against applying this fed rule.

A. Cases

“Procedural”- REA and Const testsTightest case- Burlington- AL law allowed penalty when a D appealed lost. FRAP 38 allows some sanction charges for frivolous appeals. Why can’t a fed court apply both? A fed judge could charge penalties but less than 10% of judgment. FRAP 38 allows penalty only for frivolous suits, and thus can’t penalize non-frivolous appeals, AL rule would, so conflict. FRAP 38 constitutional bc it is at least arguably procedural.Consistent w/ REA bc it affects process of enforcing rights, not the rights themselves.

Forum shoppingA SOL can be outcome-determinative, in which case fed ct shd apply state SOL to

maintain uniformity. York.McKenna problem

OH law was in flux, unclear on SOL for medical malpractice claims. Apparently conflicting SCOH decisions. Option- certify question to SCOH.Option- Prof. Clark- if state law is unclear, P must lose bc he obviously can’t carry burden of proof of what law should be applied.

Slight difference btwn federal and state rules of service (personal vs. leave at D’s home) is not a sufficient incentive for Ps to choose one court or another. Hannah.

B. How Fed Court applies state law

1. Straight application of a clear rule.

2. Prediction of state court’s decisionWhen decisions of a state's highest ct are very old or non-existent, fed ct may turn to either lower court decisions or try to declare state law as it predicts highest state ct would rule if it considered the issue. Klaxon.

3. Federal court may certify the issue to highest state ct, but rare. (dicta in McKenna)

III. Adjudication without completing a trialA. Attacks based on the Pleadings

1. Motion to dismiss FR 12(b)(6) FR 12(b)(6) Motion to dismiss on grounds that P fails to state a claim

(a) Take all facts true in best possible light for pleader: If ANY set of facts could lead to a valid cause of action, then 12(b)(6) will be denied.

(b) Courts will not dismiss a pleading bc it contains invalid claims mixed w/ valid Claims. Nurses. Court may allow party to amend pleading if misstated claim

(c) Success is rare, but it is considered adjudication on the merits- further

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actions same claim are barred.  Court must carefully consider what P alleged AND what it can be inferred P could allege.Sufficient complaint- time and place of incident, parties involved, injury resulting, relief sought.When defect is legal- court can dismiss.When defect is factual- court can order P to amend, or dismiss. Nurses.12b6- can be converted to FR 56 SJ motion if there’s an affidavit attached, or if D

answers w/ matter outside the pleadings. McKenna.

2. Judgment on the pleadings FR 12(c) a. Can be granted where D fails to adequately deny the complaint b. Can be granted where P fails to adequately deny counterclaims/defenses c. Dealt with in the same way as 12 b6, looks at facts most favorable to pleader being

challenged.

B. Resolution by the judge based on evidence from discovery

1. Summary Judgment (most common) FR 56

One party can move, based on pleadings, depositions, answers to interrogatories, and admissions for SJ.

Standard- if all evidence at trial were same as at time of SJ motion, could a reasonable jury find for the nonmoving party? If so, no SJ. SJ granted when no genuine issue of material fact, so no evidence to support NMP’s claim.

FR 56c - u can respond to or file a motion for SJ w/ affidavits, deposition, etc. Depositions are more persuasive bc it is done before an officer of the court. Further, cross-examination is at least allowed (whether it happened or not).

FR 56f- court will grant more time to party resisting SJ motion to find evidence

General Applications

Desire to cross-examine witness insufficient to defeat SJ (objective witness whose affidavit is objectively verifiable). Lundeen. BUT Cross- Gov desire to cross-examine a witness is sufficient to defeat SJ.How to reconcile? Lundeen witness was clearly unbiased, where Cross witness is actually a party. Context- Lundeen witness affidavit supported by other documents=less likely to be refuted. Type of issue- in Lundeen it was whether a decedent had done certain acts. Intent of witness was irrelevant. Cross- intent to spend the money for educational purpose is key. Can’t grant SJ when "personal motives, intent or feeling" key to case. Cross (P's self-interested affidavit not sufficient affirmative evidence).  Intent issue is more relevant to cross-examination.

i.Does evidence offered have to be admissible at trial? Basic rule: only consider admissible evidence in SJ motions, BUT if evidence submitted can lead to admissible evidence, may be admissible

ii.BurdensBurden of production- to show sufficient ev to allow rsnbl fact-finder to rule for party.Burden of persuasion- the degree to which this ev must prove the party’s claim.

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a. Burden on motion itself  MP bears burden of demonstrating there is no issue of material fact

b. Burden of production

(1) If P has burden and is MP to win he must show: (Cross)1. Affirmative evidence to support his claim 2. AND must demonstrate D's evidence doesn't create relevant dispute  P can't just attack cred of D's witnessesIf P's burden heightened by nature of suit = heightened burden to prove SJ.  Anderson (defamation = clear/convincing evidence)

(2) When D is MP he can win by:1. Showing affirmative evidence disproving P's claim.  Lundeen- D had

much evidence that P didn't dispute) Desire to cross-examine witness insufficient to defeat SJ (when objective witness whose affidavit is objectively verifiable). Lundeen. Different when witness biased or actual party (will not meet initial bdn or production). Cross.

2. OR just showing lack of element in P's case.  Does not have to show any affirmative evidence.  Celotex. Adickes- D did NOT discharge initial burden. Saying there was no conspiracy insufficient. The presence of the officer wd be enough for a reasonable jury to infer there was a conspiracy.

c. Burden shifting

EXAM- show what would happen if burden shifted and if not. If P (with burden of proof at trial) moves for SJ--must produce ev that when viewed in isolation shows there’s no genuine issue of material fact.

IF so, burden of production shifts to D (NMP) who must come up with evidence showing some meaningul factual dispute that only a jury could resolve. Lundeen

If so- SJ deniedIf not- SJ granted LundeenIF P failed o discharge initial burden of production, SJ denied, regardless of what D does.Cross.If D (no burden of proof at trial) moves for SJ- must produce ev that when viewed in isolation shows there’s no genuine issue of material fact.If no, SJ denied. Addickes.OR D can show P has no evidence- if so, burden of production shifts to P.

iii.Appealabilitya. SJ denied = not final judgment, thus cannot appealb. SJ granted = final judgment, appeal is OK

iv.Policy argumenta. SJ promotes efficiency. Might get rid of non-meritorious claim. b. Might hinder efficiency by discouraging filing of meritorious claim.

C. Taking the Case from the Jury

1. JMOL (fmr. JNOV)JMOL –same as DV, but before case goes to juryRJMOL- same as JNOV

FR 50 JMOL(a) (1) If during jury trial, a party has bn heard on an issue and there is no legally sufficient

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evidentiary basis for a reasonable jury to find for the party on the issue, court may grant JMOL against the party on the issue. (2) JMOL motion can be made any time B4 case to jury.

(b) RJMOL. Replaced JNOV. Party must move for JMOL B4 jury for right to Renewed Motion for JMOL after verdict.

After Redman if a party moves for JMOL, the court is deemed to have reserved the question, leaving open the power to decide it later.

Motion for RJMOL/JNOV must be made within 10 days of the verdict.

Should be same standard as SJ, just different context.Apply normative standard- define acceptable evidence by comparing cases.

Courts say- reasonable jury standard- with all evidence interpreted in way most favorable to NMP could a reasonable jury rule for NMP? BUT in practice it’s more than that.“Reasonable” ≠ jury making reasonable inferences.

Normative standard for what MP must show.Courts say they will not weigh the evidence, but they must (to an extent) to decide these motions.

Court weighed evidence “speculation, inference.” Galloway.Evidence not direct, required inference to prove. Denman.

Normative standard- drawing line of what evidence is sufficient to defeat JMOL.Did P need evidence of insanity for every day? GallowayDid P need videotape and testimony D caused ax? Denman.Kirchner- P said he tripped on a hole in the platform, fell 13 ft under train, unconscious, hand cut off, hand ended up on other side of track. D claimed unlikely P would have tripped fallen that far, then have his hand end up on other side of train. JMOL shd not be granted – P’s version stretches credibility but not to the point to deny jury’s verdict.

Gaps in evidenceInsanity. Mere spec, reasonable inferences insufficient to defeat a motion for JMOL.Court would not infer that- evidence of insanity at times 1 and 10=insane 1 thru 10. Would not allow inference that mere svc in war caused insanity, or that doctor’s testimony covered entire period. Galloway.Crash. No direct evidence D crossed median. Not willing to infer he did so fm testimony he was speeding. P would hv to prove this- P has no evidence- P can’t prevail. Denman.BUT- when D is making an affirmative defense, he has the burden of proof of that defense. When P has uncontroverted evidence against this, P will win DV. Hartwig (admitted evidence).

2. New Trials

NOTE- JNOV- higher standard than New trial. New Trial standard- the ev. is not strong enough to change the verdict, but is strong enough to give another jury a chance to weigh the evidence.

FR 59 Original trial by jury- CL. Aetna- judge finds verdict was contrary to weight of evidence. If judge finds the judgment would be so wrong it would be a miscarriage of justice.Cannot grant new trial bc he doesn’t believe a witness. That’s a question for the jury.BUT if new evidence is presented that shows testimony is questionable, he can grant a new trial.Judge limited to grant one new trial unless there were other errors.It would be a risky strategy to w/hold evidence at trial hoping to use it to get a new trial.

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Courts usually say that of prty cd hv gtn that evidence earlier it will say it should have.

D. Voluntary Dismissal and Default

1. Voluntary Dismissal

P allowed, at any tm B4 judgment, to voluntarily dismiss case without prejudice.  Reasons:

Sued wrong party Principal evidence or witness not available Party thinks it will loseSOL going to run out and can sue elsewhere 

2 Modern approach

FR 41 (mostly a) -P can voluntarily dismiss case B4 D files answer or motion for SJ, or if both parties

agree     -First dismissal is w/o prejudice, but any further dismissal is with prejudice -After D has moved for SJ or answered, P can't voluntarily dismiss w/o,

permission of court.  Possible considerations: (weigh equities)Burden (financial) on D; P trying to avoid bad verdict; forum/judge shopping; P must litigate counterclaim; burden on court (can make P pay D's costs, but not court costs); burden on P w/o dismissal grant.

Court may allow if SOL has run and P wants to bring case to a court that could consider it. McKants.

-If P sues a second time, court can mk P pay D for costs of first suit

3. Involuntary Dismissal

i. Operates as adjudication on the merits, with prejudice.  But dismissal 4 lack of jurisdiction, joinder or venue are w/o prejudice

ii. Court may grant involuntary dismissal (FR 41(b)) for:a. Lack of jurisdiction or venueb. Failure to join indispensable partyc. P's failure to prosecute ("due diligence" or "reasonable time" standard)

courts have held that dismissal for failure to prosecute in federal court does not prevent a suit in state court.

4. Default (Default entered first, then judgment on the default)

FR 55 When D "fails to answer or otherwise defend.   Other than pleadings, P doesn't have to introduce evidence to prove its burden.  This includes all motions that do not attack the merits (like PJ). No need for trial.  Theory- not showing up is a decision by D that he has no chance to win

Courts are usually more willing to review a default judgment than others

i. FR 54(c) P can only get maximum amount asked for in complaint  ii. Party can mk limited appearance to contest jurisdiction.iii. If D answers but nvr appears again, NOT default judgment.  Coulas.

“appear”- indicate some intent to take part in a suit. Sometimes even talking abt a settlement w/ the other side is considered appearance and notice.

iv. Difference btwn default and judgment- if D appeared in suit, gets 3 days notice before default judgment entered (clerk can render judgment).

If D showed some interest in case (e.g. participating in negotiations, deposition), entitled to notice (3 days).   

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at least a party who has appeared has shown interest in defending.courts don’t want to enter def. judgment against a party bc of action of attorney.

v. 55 (b)(1)- court can enter judgment in “sum certain”- the amnt in the claim which is not in dispute. Ex: contract says- if breach, breaching party will pay exactly X.

vi. Majority allow for default judgments to be reopened w/ showing of good cause, within statutory period (usually 1 yr).  Otherwise, res judicata effective.

IV. TrialA. Intro

1. Order of trial (courts can split cases by issue)

i. Jury trial order (judge can alter):P opening statementD opening statementP presentation of direct ev.D presentation of direct ev.P presentation of rebuttal ev.D presentation of rebuttal ev.P opening final argD final argP closing argJury instructions

ii. Nonjury trial orderUsually same, but courts can cut steps-even args

2. Burden of proof

Burden of production- party must produce crtn amnt of ev to raise a claim. Must be enough that a rsnbl jury cd rule for the party.

Burden of persuasionboth usually on Ps

Standards for mtg burden of persuasion:

Preponderance of the evidenceClear and convincing ev.Beyond a reasonable doubt

In some cases, a party can shift burden of persuasion to other party by meeting burden of production.

3. Instructions and Verdicts

FR 49 b- if answers to interrogatory are inconsistent with general verdict, judge may enter judgment (JNOV) based on answers.

FR 49 b allows judge to choose the form of the verdict.Procedure can thus affect the outcome.

General verdict- simply which side wins, and if it is P, how much jury awards P.Special verdict- jury answers specific questions from judge.General verdict- with interrogatories- combination of general verdict and answers to

specific questions.

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B. Right to Jury Trial

1. Value of jury trials

Pro ConQuality

more people to consider QuestionAnti-Bias

12 ppl less likely 2 be biasedPerspective- members of community

reasonable perspectiveLegitimacy to verdict

public had role in judgingCivic/policy- having public

participate helps public understand

Legal processChecks power of gov.

Unpredictablejurors can be inappropriately influenced

Jurors disinterested-don’t want 2 b thereLack of expertiseInefficientBc judiciary is independent, judges less

likely to be swayed by gov pressure

2. Why choose judge or jury to decide certain questions?

Judge ??????? JuryLaw Mixed Fact

Fairness (above)Expertise

Markman- judges more able to interpret patent terms.

UniformityMarkman- patents- everyone needed to understand patent’s terms.

History: matters historically decided by judges

Usually jury, but there are limits

Markman- written instruments- mix of law and fact- judges better trained

Weigh facts particular to one case

Fairness- jury can decide what is just regardless of law

Communal judgmentHistory: matters historically decided by juries

KEY- look at the factors we decided (above) suggest either judge or jury should answer the Q, and see how they apply to the Q in question.

Ex: whether P lost cognitive ability- fact- jury. Whether D was negligent- fact- based on reasonableness of D’s act- reasonableness based on community standard. BUT- standard of care- negligence/ordinary care is for the judge to decide if it applies. BUT “was D negligent= mixed question of law and fact or application of law to facts.

3. The right to jury trial

7th Am. (1791) preserved right to jury trial- did not create it.SO- right to JT exists for cases that, in 1791 would have been considered law suits, and not those that were in equity.

FR 39- even in case where no rt to jury trial under 7th am, ct can provide an “advisory jury,” sua sponte OR by party request.

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When it applies, it applies to both parties. Either can demand it BUT FR 38- party must request jury trial w/in 10 dys of last pleading. IF not- the right is waived.

Cases mixing legal and equitable claimsIf you have legal and equity claims in action, must decide legal claims first, and jury must decide the claims. Beacon. This allows jury’s judgment of facts to control judge’s later decision of facts for the equity claims. Party can’t get equitable relief where there is possibility of legal remedy.

So court will lk past labels parties use for claims to mk sure one party not trying to cheat other out of JT.

Even if equity issues predominate, law issues must be resolved first, and by jury.  Dairy Queen.

If ANY issues overlapping btwn eq and leg claims, they must be decided by jury EVEN if legal claims are only incidental.

4. Law (right to JT) or Equity (no right to JT)?

NOTE- if case is abt negligence in car crash, the test does NOT focus on car crashes B4 2nd Am, but neg, which did exist.

i. Damages = always legalBUT just bc court is ordering money payment is not enough- it may be restitution= equity.

Test: (Curtis)1- if court wd hv discretion abt wthr to grant relief

on a legal claim, there is a guarantee of relief if case is proved.on equitable rest clm- ct can decide not to grant relief even if P wins.

2- Congressional label- did it call the relief dmgs or restitution?3- Does relief focus on P or D?

legal claims focus on harm to P.restitution focuses on wthr D has bn unjustly enriched

4- punitive dmgs usually legal

ii. Injunctive relief = equitable

iii. ANY judgment under DecJ shd be treated as at law for 7th Am. rt to JT. Beacon.iv. If action did not exist before 7th Am, and Congress created by statute:

May still be legal:Curtis- 7th am preserved core notion of types of claims that wd get JT, not just the specific claims.

Test1) wxr statute enforces legal rts under 7th Am, analagous to legal claim historically.

SO- some history2) P seeking legal relief.

certain remedies are classic equity- inj. Specific perf.classic legal- dmgs

Application:1- claim for fair housing (legal) is similar to claim of unfair denial of lodging by

innkeeper.2- P seeking dmgs (and injunction)= classic legal relief. BUT just bc court is

ordering money payment is not enough- it may be restitution = equity.Tull recognized test but gv more weight to part #2, just bc it was hard to figure out

#1.

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Chauffers- duty of fair representation = equitable, but collective bargaining Agreement = legal. Remedy not restitution, so jury trial should be available. Brennan concurrence- not rt to make courts do work of historians.L’s right to retake property = legal. Pernell. Rt to reinstatement w/ backpay = equity.

V. Effect of a JudgmentRes judicata claim preclusion, and collateral estoppel (issue preclusion) govern the effect of

prior judgments in subsequent suits.  Can't re-litigate things previously litigated. Apply preclusion doctrine of jurisdiction that made previous judgment.EXAM- say “IF jurisdiction X is a mutuality jurisdiction…”

A. Diff btwn CP and Stare Decisis (Rush)KEY difference-CP applies only to first provision of suit- P and original D, not future potential parties.SD applies more expansively- binds all future litigants.

SD broader in some respects, narrower in others.CP more expensive bc it is virtually absolute.-arg that it seems unfair in a particular case almost never works.SD is more a strong presumption than an absolute rule. Courts can overrule if they decide precedent is now problematic.CP defined by factual test- “the car accident.”SD applies to questions of law- what is standard of care in car ax?--BUT SD will apply to identical applications of law to fact.CP also blocks claims that were not litigatedSD only applies to issues court has decided.CP in interjurisdictional- if P sued in CA, he can’t sure for same T & O in NY.SD applies only within the jurisdiction.SD applies kind of unfairly when u consider that when a bad lawyer loses a case, it will bind parties who did not get to argue and may have argued a batter case.-we have to assume the benefits of the doctrine will outweigh these potential costs.

SD purpose: Efficiency, Certainty- ppl need to know what they can or can’t do, based on earlier decisions. Fairness. Limits ability of judges to impose their own decisions.

B. Claim Preclusion (Res judicata)

1. Generally

Hyp. Broke arm- can’t sue again for probably can’t sue for dmg to watch in same incident.

Bar to subsequent suits involving the same parties and those in privity with them, when the prior suit ended w/ a judgment on the merits.

Change in law doesn’t change application of claim preclusion. A final judgment is entitled to preclusive effect. Moitie.

Purpose avoid claim-splitting. 

Elements1) Same claim or cause of action (same transaction and occurrence) 

Can't try to sue on two different legal theories Could be cases where T&O different fm same claim.  Ex. auto accident, negligence claim, driver slanders the other driver. Matthews Vicarious liability suit- Claims in both cases (against employees, against employer) arose from single occurrence or transaction, even though he’s technically suing another party. Jones. The contract and finance note were the same transaction. Entire amnt was due at time of first suit. All claims the bank did not make in that suit were barred. Title

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passed when P paid judgment. P owned car when D repossessed it. P awarded damages for entire value of car.

2) Same parties.  Includes parties in privity (not always applied to employer-employee).  Mathews-  tort rule of vicarious liability apply, P can't sue security officers, lose, then sue the racetrack f/ same tort 

3) Adjudication on the meritsFirst suit must be decided or dismissed with prejudice.  Ex. dismissal b/c of lack of venue, jurisdiction, joinder not on the merits, but 12(b)(6) motion is. D never showed up- still = on the merits. If D answered = on the merits.

2. Claim Preclusion- Counterclaimsi. Compulsory counterclaim rules FR 18 serve to merge/bar claimsii. If suits aren't brought as compulsory counterclaims, res judicata applies

A stranger to the first suit can’t assert or be bound by claim preclusion.3. Defense Preclusion

D can’t raise a new defense or a defense he’s already lost in another case.

i. Party must raise counterclaim if it raises a defense based on same set of facts. FR 13a- a party must make any counterclaim if it arises fm same T & O. Mitchell. Suit 1. Bank sued Mitchell for loan debt (erroneously- it had already recovered twice amnt of loan by selling Mitchell’s potato crop. Mitchell won.  Suit 2: Mitchell tried to get other half fm bank.  Court says barred.  P had the option of demanding judgment against D via counterclaim, and might have recovered judgment he now seeks.  If P had not put in issue the fact he had already paid twice the amount in first suit, this would have been okay. By asking court to find he had paid bank, he created duty to counterclaim for remainder bc it arose fm same T & O.

ii. Preclusion by rule: applying FR 13a to preclude a claim is preclusion by rule- states also use their own rules- most common.

iii. Permissive Counterclaim rules differentHyp. A sued B in diversity in fed ct. B did not assert any cc for dmg to bushes or lawn, but does raise cc for separate event much earlier. This is a permissive cc. It can be adjudicated then, but he could have waited to bring it as a separate suit.Suppose he did, and it is adjudicated. Then he seeks dmgs for loss of pet in same event. This is precluded even though the original cc was permissive. Once he asserted the pcc, he had to join all claims arising from that T & O. When D acts like a P by asserting a cc, all the rules of claim preclusion that apply to Ps apply to him.

4. Reasons for Claim Preclusion

i. Finality Ds need sense of repose (like SOL).  Protects consistency and integrity of courts/judgments.  Intra-system uniformity.

ii. Efficiency  iii. Fairness to D. P already has advantage to choose forum.  

Also fairer to poorer parties.  Wealthy parties can keep splitting up claims to the point where D couldn't afford litigation. 

C. Issue Preclusion (collateral estoppel)

1. General RuleA right, question, or fact put in issue and determined by a court of competent jurisdiction as

a ground for recovery cannot be disputed in a subsequent suit between the same parties (or parties in privity with them).

2. Issue preclusion never applies to matters NOT argued or decided in a prior action

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3. Elements

1) Same issue Cromwell- (Suit 2- different bonds than in Suit 1, bc bonds transferable and P may have been valid buyer)Moser- P claimed he had earned pension fm navy service. Cts ruled in his favor. P sued to recover pension. Gov defended by claiming his service didn’t qualify him for a pension. P could invoke issue preclusion.BUT- when law changes w/ same facts- no issue preclusion.Sunnen (preclusion was inappropriate bc law had changed abt what is taxable for later years). BUT- if # 1 was a statute w/ one element and #2 is a statute w/ similar element, cd be considered same issue.

2) Issue actually litigated in first suit.  Cromwell.Std of proof in #1 must be equal to or greater than that in #2.D not obligated at first trial to raise all defense Party against whom collateral estoppel is asserted must receive "full and fair" opportunity to litigate his claim The first time around, action may have been for so little money that the party does not show up to litigate it, or forum may have been inconvenient to litigate an issue in.  Could declare an issue precluded unless party opposing preclusion can show that they had no incentive to litigate it the first time around.Alternate findings: if there is uncertainty in the record of the first trial as to whether a distinct issue was raised and litigated, or several issues were litigated as a group, the whole subject matter subject to re-litigation.

3) Actually decidedRussell- Suit 1- patent infringement. Suit 2- for continued infringement of same patent.  Issue of patent validity allowed because it was unclear exactly what findings/issues the jury decided- general verdict could have been based on either or both of the two patent claims. KEY- that jury verdict could have been based on findings other than on the issue in question.

4) Necessary to final judgmentThe issue must have been necessary to the first judgmentRios. Suit 1- all parties found negligent. In contributory negligence state, P's negligence was not necessary to judgment in Suit 1, so no CE effect in Suit 2.Reasons that issue must be necessary to final judgment.

1) Appealability- here, R cd not appeal the finding he was neg as a D bc he won the case. He could only ask for the total judgment to be reversed. Party who wins does not have ability to appeal.

2) D seriousness. Here- Btwn D and R in the first suit, R cd have prevailed (in contrib neg) if 1- the court found D was neg or that R was not neg. When a party can win on multiple findings, he may use his limited resources to prove just one. Thus, at least one possible issue is not fully litigated.

3) Jury seriousness. Jury, knowing only one issue would dispose of the case, may only have focused on that issue, not considering another issue fully.

4. Issue preclusion rules for certain kinds of decisions

i. No Issue preclusion for discovery admissionsFR 36- parties can ask each other to admit things. 36b- This rule, for discovery, only allows the admission to apply to the suit in question. Ct may permit a party to w/d the admission. Party cd do this at trial too. If there were preclusive effect for such admissions, parties wd be less likely to admit things. The thing may seem inconsequential for the suit at hand, but may become significant in a later suit.

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ii. Issue preclusion for FR 12(b)(6) dismissal?An issue can’t be precluded by dismissal under 12b6 bc that finding is even if he did make faces u can’t win- not whether or not he made faces. FR 41b- unless otherwise specified, 12b6 dismissal will be treated as on the merits.BUT Justice Scalia said this doesn’t apply for claim preclusion purposes. SO answer is unknown.

iii. Consent judgments? Key is what parties intended. Hanover5. Hyp. Three-car crash. P, D, R. Pure cont neg state, no compulsory counterclaim rule. P

sued both D and R. No crossclaims. Special verdict- P neg, D neg, R neg.Second suit. R sued D. Can either party assert issue preclusion on neg? No, bc those issues were not necessary to the judgment- cd hv disposed of case w/ finding of neg for either D party.Hyp. Same, but gen verdict for P to recover against both D and R. From this gen verdict, we can infer 1- P not neg, and 2- D neg and R neg. Findings of neg for D and R were necessary for the judgment. If u cancelled either, the outcome wd change- either no recovery, or only recovery against one of the Ds. Hyp. Suppose P had green light, but both D and R ran red lights. This would show both D and R were neg. NOT necessarily same issues if D sues R. Question of whether D and/or R’s neg caused P’s dmg may not be same issue as whether D or R caused each other’s dmgs.

6. Challenge of defining “same issue”Hyp. A trips on B’s land, sues. B lost on defense he did not own land. SV- B owned the property. IP when A sues later for tree falling on car?Issue- whether he owns the property- BUT can be divided- whether he owned property at tm of first incident and second issue- whether he owned it at second incident.But imagine the second incident happened just a day after? Still possible he sold it. Courts treat it this way- always possible facts have changed. D shd bear the burden to show it is not the sm issue. He shd hv to say in his answer how things hv changed and why it shd not be precluded.Normally the party trying preclude an issue has the burden of showing why- how it meets the four factors. When it naturally seems the issue may have changed (esp. based oin facts) courts put burden on party arguing IP shd apply. BUT when it seems obvious that issue shd be precluded (such as “sold it the night bwtn the incidents) ct puts burden on party seeking to avoid IP.

7. Reasons for CE in generalEfficiency Fairness: no incentive to make big deal in the first suitFinality: claim in first suit is not undermined.  Judgment of court represents resolution of claims between parties.     

8. Mutuality

i. Old rule: both parties to the second action must have been parties to the first action before either can assert collateral estoppel.    P fm first suit can’t assert IP agnst stranger to first suit (B), so fairness requires same limitation on B against P in second suit.

Indemnity circle exception Anderson- in cases involving derivative liability (ex: P loses suit against contractor, then sues city employing him and wins), parties must be able to assert preclusion to avoid inconsistent judgments

ii. Most courts have abandoned the general mutuality principle.  BernhardEfficiency and fairness args led to decline of strict mutuality reqs.

Bernhard- No more indem circle exception for mutuality.IP was asserted defensively against a repeat P who had already litigate the issue and lost. Justifications of mutuality were weakest in defensive nonmutual collateral estoppel. Also bc it is

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asserted against a prior P who had simply switched adversaries- why shd she get two bites at the apple?

Mutuality applied to reasons for preclusion in general

Against mutuality For mutualityEfficiency XFairness X XFinality X

Could argue mutuality hurts all three of these reasons. Efficiency- forces parties to prove same issue again. Fairness- unfair to allow P to use experience in first suit in second suit. BUT- fair to level the playing field. However, the first argument is more practical. Finality- would allow different result in second lawsuit.When is mutuality efficient? If u allow offensive CE, that promotes more litigation. Second P can take wait-and-see approach to first action.

iii. Defensive non-mutual collateral estoppel Hyp. Suit 1- P hurt when brakes fail. P sued C, car manufacturer. SV- brakes not defective. Suit 2- P v Brakes manufacturer.Can B rely on finding fm first suit? No. Mutuality- P can’t assert IP agnst stranger to first suit (B), so fairness requires same limitation on B against P.IP being asserted against P who has simply switched adversaries—doesn’t matter when using mutuality.

Courts more willing to allow defensive use by a stranger when stranger is defendant in second action

iv. Offensive non-mutual collateral estoppel

1- P sued B. P won- breaks defective2- R has same car, also crashed, sued B.R argues B shd nt hv op to deny brakes defective bc of first suit.Pure mutuality- R can’t assert IP against B. R is stranger to first action, so B can’t preclude him. Because B can’t preclude R, R can’t preclude B.

Allowed sometimes, even though D didn't choose forum in either suit.  Park Lane Look at factors:

1) Intervention/ wait-and-see concern?Could P have joined the first suit, or did he wait and see?

Ps in 2 could not have intervened in 1 bc it was an SEC suit. SO- no wait-and-see concern.

2) Risk of inconsistent judgment?  (e.g. 200 passengers killed in plane crash, first 20 Ps lose but 21st wins, and all 179 rest then assert offensive non-mutual collateral estoppel)

When prior judgment is against D- only a risk if the suit in question is a third suit, and the first two conflict

3) Incentive. D being sued by SEC must have taken its defense seriously.

4) Procedural opportunityIf Suit 1 litigated in circumstances that concern is that D did not have full/fair opp to litigate then we shouldn’t allow onmce (this is req’d for all assertions of ce) Ex: 1 was crim case, and 2 is sentencing hearing- std of proof different plus no discovery

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VI. Post-Trial Corrections of ErrorA.Grounds for Seeking Relief from District Courts FR 59, FR 60Hulson (quick case study- integrated into separate FR 60 )

Huslon sued RR. Lost. Moved for directed verdict and new trial. Claimed jury inst erroneous. H delayed filing FR 50b RJMOL- wanted to wait for copy of trial transcript to show exact instructions. Had used due diligence to get them. Court denied as untimely. H appealed under FR 60b- mistake, inadvertence, fraud, etc. (below).

To appeal, party must ask CA to review FRAP 4- file notice of appeal w/in 30 days of time challenged TC decision is entered. Exception for gov party- 60 days.CAs consider the deadline jurisdictional- if u don’t meet it, too bad.

H’s filing was w/in limit for TC judgment against RJMOL and FR 60b motion.SO D not seeking to dismiss those claims- they are timely filed. BUT if H wants to challenge jury instruction. He can’t appeal- not filed w/in 30 days of decision.

FR 50b RJMOL or FR 59 New Trial- if timely filed, deadline does NOT tick while u wait for court to rule on those motions. Runs after ruling. FRAP 4- tm to appeal not running til ct denies timely JNOV and NT motions.

H can arg DC not justified in denying his FR 60b motion:FR 60b1- mistake by attorney unaware of FR 6 deadline. Should be excusable negligence bc

even the DC made the mistake.Briones test of excusable negligence.

1) danger of prejudice2) length of delay/potential impact

not very long3) reason for delay

TC itself responsible4) good faith- was a good faith mistake

SCOTUS ruled excusable neglect must not be so unusual that it is undeserving of relief. NOTE- courts unlikely to grant these motions just bc a party had no idea of the rules. Would create intentional “mistakes” as strategy. They will usually be granted only for default judgments. Here, H did have a JT, so arg will be difficult.

1.Motion for new trial normally must be made within a short time or the right to object is waived, as per finality policy.

2.If party discovers new evidence or fraud, or something else that prevented fair trial, most jurisdictions say you can move to set aside judgment within one year. 

3.Can a judgment be set aside?Every jurisdiction designates certain limited grounds upon which a trial court can grant

relief to a losing party after judgment has been rendered. Even when such grounds are present, courts have broad discretion in deciding whether or

not relief is proper. Judges generally are more reluctant to set aside a judgment than they are to grant a new

trial before judgment has been entered.

4. FR 6(b)- DC can grant exceptions on time limits, except for some- (new trial or JNOV). 

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5.Newly discovered information-FR 60Relief is usually new trial-   not automatic win .

i. FR 60(a)- clerical mistakes fm oversight or omissions.  No time limits.ii. FR 60(b)- six reasons DC can review a case for error:    

NOTE- time limits(1) Mistake, inadvertence, surprise or excusable neglect.  Mere negligence or

ignorance of the rules does not suffice. (2) Newly discovered evidence.

Material evidence that could not have been discovered at trial or within time for a motion for a new trial with due diligence. Not merely impeaching.

(3) Fraud  In most jurisdictions, only extrinsic fraud (occurs outside proceedings of trial itself) may be grounds for reopening.  Policy is that counsel should be able to expose intrinsic fraud during trial. In fed courts, extrinsic and intrinsic fraud will be considered Hulson- Ds knew of timing deadline, that extension couldn’t be granted, but consented anyway as strategy. Here it would be omission, but it would be difficult to prove it is intentional. However, H should point to fact that very soon after consenting, D objected to untimeliness. Possible they learned in the interim, though. As long as fraud had substantial impact on case, it will count.KEY- if a lawyer knows court is making a mistake, he does not hv to point it out

(4) Judgment is void (5) Judgment has been satisfied, released, discharged, or a prior judgment upon

which it is based has been reversed or otherwise vacated, or prospective application of the judgment is no longer equitable

Hyp. A sued B, A won. Later court overrules CL rule on which A relied. Could case be reopened bc precedent changed? No. If so, judges wdn’t mk dramatic changes in law for fear of flood of suits. BUT, we don’t want judges to perpetuate unfairness just for reliance on unfairness. SO- stare decisis changes do not apply to this rule.S when does this rule apply?Claim preclusion. A sued B, B prevailed on grnd that A was precluded by prior suit. CA reverses that judgment- claim no longer precluded.

(6) "Any other reason justifying relief" (catch all).  Reserved for extraordinary circumstances.  Ex. INS deportation proceeding, person couldn't get letter from gov't while in prison.

(1)-(3) must be filed w/in one year of judgment AND within a rsnbl time.  Can't find smoking gun two weeks after trial then wait until 1 year minus a day to file the 60(b) motion(4)-(6), No time limit on but must be within reasonable time

Purpose: tight balance- we want finality, no reopening at whim of judge, but also don’t want judgments to be substantially unfair to litigants.

B. Appellate Review and Final Decision Rule

1. Final decision rule- u can only appeal a final decision of a TC, no interlocutory appeal (generally).

 i. Interlocutory decisions, even if crucial to the litigation, were unreviewable. ii. Intended to prevent costs of appealing every interlocutory decision.

2.Modern rule: inconsistent (policy reasons) i. Pro: principle of finality and efficiency in speeding decision on the merits ii. Con: desire to correct obviously incorrect decisions since they will shape the trial,

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and may save the expense of a new trial.

3.USC §1291: courts of appeals have jurisdiction only over final judgments  Finality refers to claims, not issues. 

Don't want piecemeal litigation

4.USC §1292: Interlocutory orders

§ 1292(a)(1)- an interlocutory order that denies a P's request for an injunction is appealable immediately. 

§ 1292(b)- allows for appeal of other interlocutory orders in limited circumstances.  Ex. discovery orders

District court must certify the issue is a controlling question of law- substantially subject disagreement, appeal would help end trial.  Sometimes resolution will effectively end merits.

Party must file appeal within 10 days CA has discretion to not hear appeal, unlike FR 54(b)

5. FR 54(b) Judgment on multiple claims or involving different partiesi. If 1+ claim(s) of relief present in action, or multiple parties, court can adjudicate 1+, but

not all, claims involved, but it is NOT considered a FINAL judgment.  Orders can thus be appealed.

ii. No discretion (unlike interlocutory orders).  Appeals court must hear itiii. Policy = parties should be able to appeal when liberal joinder rules impose harsh

burden.  iv. Liberty rejects contention that 54(b) applies, bc there- only one claim despite requests

for multiple remedies.  Thus order was never appealable under USC § 1291.  Not appealable under USC § 1292 either

 v. Mandamus: -like doctrine of interloc review- only avlbl in rare cases- clear violation of a party’s right by trial court based on clearly incorrect decision.  Cohen.vi. Collateral Order doctrine- finality not applied if a decision on a case made by a TC is "collateral" to the action's merits, and where appealing party will suffer hardship, inconvenience or prejudice if the appeal is not recognized-Also, individual causes of action or parts of single cause are readily separable as to substantive content, appeal may be permitted where hardship is shown.-Doesn't necessarily have to be outcome determinative-Forum selection clause and discovery orders are not collateral order. 

vi. How to allocate responsibility between TCs and appellate courts

Parties can appeal: (7)

1) USC § 1291- a final judgment/decision/orderin Liberty, the liability and damages were part of same claim.must be that there is nothing left to do but enforce the judgment.just saying a party is liable doesn’t make a final judgment.

2) USC § 1292(a)(1)- exception- interlocutory ifDecisions granting, modifiying, or dissolving injunctions usually comes up in preliminary injunctions- P claims allegedly wrongful conduct is so harmful that it should not be allowed to last until final decision. P can move for prelim injunction. If denied, he can appeal immediately.

3) Implementing final decision rule when there are multiple claims FR 54(b)- when there are multiple claims in a suit. If DC resolves one or more but not all claims, it may be possible to appeal that claim. If DC decides claim 1, but claim 2 will require a trial, party can appeal claim 1 IF DC makes an express determination

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that the decision that is final, and no reason for delay, AND the claim appealed is not so related to the other claims that they are better judged together.Liberty- -not applicable bc all one claim.

Rule came after REA (SCOTUS can’t abridge, enlarge, or modify substantive rights)This seems to counter statute 1291- it seems there is a final judgment on the issue.

NOTE- how can it be that SCOTUS can create a rule that’s inconsistent with the FR and thus a congressional statute- Rules Enabling Act.BUT 54b just asks TC to balance competing interests of fairness to party who lost and wants to seek appeal with interest that judicial resources are not wasted.

Thus- the rule does not allow automatic appeal.Liberty court assumed what TC said was final.

4) USC § 1292(b)- a judge’s order that is otherwise not appealable (interlocutory) but the answer to the question will tell what final decision should be, TC may certify that the question is a controling question of law on which there’s substantial ground for difference of opinion, and resolution of the issue will advance resolution of the suit itself.

Reqs: 1) cert fm DC stating question has above qualities AND 2) make petition to court of appeals noting success in 1 w/in 10 days- ct of appeals can still reject. Very rarely invoked or permitted.

5) Collateral order (interlocutory)Some cases that would be unreviewable later so as to justify immediate appeal. Cohen. State law req’d Ps in shareholders’ derivative suits to pay bond in case suit is found to be meritless. Ps sued, claimed did not hv 2 post bond bc it sued in fed ct and under Erie docrine, no req to follow state law on this matter. SCOTUS disagreed.

Not a a final decision, not injunctive relief, not multi-claim, No certification fm TC under USC § 1292b

Can still be accepted- actual issue- whether P has to post bond is collateral (separate) fm main action in case. -isn’t this usually true (PJ or whether process is proper?)Bc it is completely independent of suit’s merits- it seems they might not be able to appeal it later.By allowing this appeal, we avoid problem of having D win, ask for bond to paid, but there isn’t one and Ps can’t pay costs as decided in case.Point of limiting PJ over some Ds is that it wd be unfair to force D to litigate in the forum. While waiting for decision on his motion to dismiss for lack of PJ, he has to show up and pay money to litigate in that forum. Why isn’t this a collateral order? Technically, the judgment can be set aside on appeal, BUT practically, D still had to pay that cost.

Discovery motions generally not appealable. None of the 5 above would apply. SO:

6) Mandamuslike doctrine of interloc review- only avlbl in rare cases- clear violation of a party’s right by trial court based on clearly incorrect decision

7) Contemptdisobey an order until u r held in contempt- then u can appeal

vii. Federal vs. state Rulesa. State courts not as strict as federal courts re: finality.  NY Rule allows

interlocutory appeals in virtually all situationsb. SO, in diversity actions in fed courts, rules governing appellate review of

interlocutory decisions are outcome determinative in practice.

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5. Collateral order § 1291 NY- allows immediate appeal

6. Mandamus Efficiency- if early in case ct says U must disclose, u don’t like But u do anyway, but then win suit= u will never raise the appeal Fairness- one party might decide appealing every order is good litigation strategy.  Wealthy D will keep appealing.

Efficiency- ct rules there is PJ, u hv trial, but CA says there was no PJ, case never shd have happenedFairness: if appeal is put off, some parts of case might not exist laterAccuracy: in discovery matters, very little case law.  Courts have to make up things as they go along.  Orders might lead to fewer cases in future.

C. Standards of Appellate Review

1) De novo- formal deference to trial court.  Party that loses in trial court gets second bite at apple.  Deals with findings of law, not fact.Bose (de novo review of malice claim, to determine if clear/convincing evidence existed)

2) Clear error (somewhat deferential)NOTE- only for trial judges, not jurors

3) Abuse of discretion à doesn't matter that court of appeals would have done something differently.  Must be egregious exercise of district court's discretion.    Strictest standard. Beyond deciding that AC wd decide differently. High level of deference. A TC judge can decide more than one way to decide a question. As long as his choice is not an abuse of discretion, AC will uphold it.

Why support deference- presumption they are correct for:

Trial Judge Jury CAhe can better evaluate live witnesses for credibility/demeanor. BUT, in hyp. Below, only one witness, nobody contests the testimony. SO, sometimes this justification is not enough. BUT- FR 52a- nature of evidence does not matter. BUT pure documentary evidence allows CA to reach easier conclusion as to TC’s accuracy.Policy- don’t want to mk TC judges look less competent or flood CAs. Familiarity- judge dealt with case possibly for years.Systemic efficiency- w/o deference, you give incentive to appeal.

More reflective of community valuesCommon sense12 minds better than 1Even if not more accurate- it’s more legitimate if decided by community

Determinations of lawIncentive to appeal decisions of law- seems less likely than appealing fact bc CA (system of precedent- can’t appeal a question of law that has been decided before)

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Hyp. Workers comp suit by widow. Only ev- man was alone, painting house, on a ladder. Found dead at foot of ladder. Cause of death was heart attack. Rule- spouse can get workers comp benefits if his death was in the course of employment. Assume she wins if she can show he fell first, then had heart attack, but can’t recover if he had a heart attack first.Judge concludes fall came before heart attack- widow can recover.Shd CA reverse finding?-What happened first = question of fact. So no- deference to TC judge’s findings of fact.

Many judges take these standards very seriously. In close cases, whether there is deference to lower court will be decisive.

Grant of SJ or JMOL does involve weighing of facts, it involves an application of law. It does not divest jury of ability to make judgment on fact- only one permissible legal conclusion. So decision reviewable de novo.

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