CivPro Outline Example 4

7/28/2019 CivPro Outline Example 4

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Civ Pro Outline

I. Service of ProcessA. Commencement of Action: Rule 3

1. a civil action begins by filing complaint with courtB. Who May Serve: Rule 4(c)

1. anyone who is not a party and is at least 18 (FRCP 4(c)(2)p. 39)C. What is served:

1. Summons served with a copy of complaint within 120 days after filing complaint. (FRCP4(c)(1))

D. Waiver of Service: Rule 4(d)1. If P notifies D of commencement of action, P can request that D waive service of

summonsa. D will have at least 30 days to return waiver

2. Streamlines process for the court less complicated and less expensive3. Rules set up to make them want this costs of service will be imposed on D for failure to

comply with request for waiver4. Perk = more time for defendant. If D returns waiver, has 60 days (compared to normal

20 days) after the date on which the request for waiver of service was sent to serve an

answer to complaint5. If you can show D wasnt there for waiver, can defer costs good cause

E. Service within the U.S.: Rule 4(e)1. pursuant to law of the state where court is located or state in which service is effected

(FRCP 4(e)(1) p. 40)2. summons must be delivered, with copy of complaint:

a. to individual personally ORb. by leaving copies of complaint and summons at individuals dwelling (FRCP 4(e)(2)

p.40)c. to some person of suitable age/discretion residing therein

a. leaves server of process with discretion to determine whats suitabled. by delivering to agent for service of process

F. Due Process and Summons Service

1. Calculated to give reasonable notice2. Core of due process = right to be heard3. Greene v. Lindsey (packet)

a. Posting on tenants doors is not reliable in this case b/c kids can rip them down (veryfact specific holding)

b. Challenge brought based on how process was served according to state laws (in afederal court)

c. Mail goes a long way in protecting Ds constitutional right to have opportunity tobe heard. Mail + posting = even better.

d. Factors in determining whether service of process satisfies due process of care?1. Cost of alternative service

a. mail is inexpensiveb. delay creates costs for both landlord (right to have new paying tenant) and

tenants (right to possession of property)2. Interest at stake:a. tenants interest in maintaining their home is high must consider

consequences of eviction, etc..b. whose interests count? Just the present tenants? Landlord? Future tenant?

3. Increase in reliability of new service:a. factual questions about the reliability of mail, posting, etc.. may be bestanswered by the legislature

4. Test = cost of alternatives, likelihood of error of alternatives and magnitude ofinterests at stake.

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a. Formula1. If < 2, switch to alternative2. If >, stay with 13. If =, either one is good

e. Dispute is whether Rule 4 (summons) is satisfied

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II. PleadingA. Objectives

1. give notice of nature of claim2. state relevant facts3. and in Code pleadings to narrow and formulate the issues involve4. pleadings determine scope of the action and any judgment

B. Background -- at CL, the pleading was the only stage in which issues were defined, so it wasvery important and the rules were very technical. A mistake in pleading could be fatal.Currently, pleading is only one stage in the issue-defining process so theres a trend towardliberalizing the rules of pleading and streamlining the process.

C. Common Law v. Equity1. Common Law

a. Purpose1. cheaper and faster process if parties agree to one issue in dispute

b. Background1. original CL courts could only grant relief in accordance w/ recognized forms of

action and the pleading had to be drawn in terms of one of those forms.Amendments to change forms not allowed.

2. common law pleading aimed at separating disputes focused on law and thosefocused on facts. (they had to take their whole case on one or the other) and that

determined whether case would be decided by judge or fact-finders.3. One party per case -- inability to handle disputes with more than two parties4. Live testimony but it couldnt be compelled

c. Common CL issues:1. breach of peace2. specific writs3. other fact finders?4. Juries = involved, not impartial5. Dilatory/delay on merit responses = jurisdiction, suspension, abatement OR:

demurrer, traverse, and confession and avoidance6. monetary relief

d. Pros/Cons1. Pro: quicker resolution of dispute

2. Cons:a. less complete representation of issue, some times artificially categorized

according to available writsb. no remedy for disputes over fact and lawc. numerous pleadings were time consumingd. primitive methods for gathering pretrial infoe. inability to handle disputes involving more than two parties

e. Numerous Pleadings In order to distill a case to one issue, numerous pleadings andcounter pleadings take place. This was time consuming and used as a delay tactic1. Responses to Pleadings

a. Dilatory Responses delayed suit (dont take positions on facts or laws)1. jurisdiction (not here)2. suspension (not now)

3. abatement (not like this)b. Peremptory Pleas how D responds grappling w/ merit after P. enters suit

for complaint1. demurrer (so what facts are true, but no legal issue)2. traverse (not true legal issue, but facts are untrue)3. confession and avoidance concedes legal sufficiency and facts but

alleges additional facts that change legal issue. (yes, but)3. Chancery/Equity

a. purpose:1. to deal with cases that had no remedy in CL courts

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b. Background1. Also royal court. Courts of equity heard cases where a remedy at law was

inadequate.2. More of a fact-based pleading3. Parties could be subpoenaed but couldnt be heard live restricted to written

testimony (enormous reliance on written depositions)4. This pleading = less formal, more detailed, can last forever.5. Could be multiple parties to a case.6. issued special remedies / specific performance7. detailed pleadings8. had to include all parties9. no juries

c. Pros/Cons1. Pro: more complete findings2. Con: cases took forever

d. Common equity issues:1. trust2. injunctive relief3. fraud4. mortgage

e. Difference from CL1. mode of administering justice2. mode of proof3. mode of relief

D. Our System Merging Law and Equity1. Legacy of Chancery and Common Law

a. Our substantive law grew out of attempts to fit facts into rigid forms (writs).b. Our system was meant to take the best of both system and leave the rest behind.

2. 2 Step Reform Intro. Of Federal Rules and Intro to the field code adopted bylegislaturesa. Though details differed, reforms had 2 common themes: simplified pleading and

merged law and equity into a single system.3. Common ground between code and rules pleading

a. both merge procedural systems of law and equityb. both were designed to get away from complexities of common law and equitable

proceedings, esp. those of CL pleadings.c. Both designed to ensure clear and simple articulation of legal grievancesd. Elements of substantive law must be addressed in both in order to survive dismissal

4. Differencesa a. code requires allegation of facts, while Rules allow pleading of conclusions5. Places where you can see merges in todays system:

a. pretrial pleading is like CL but youre allowed more than one form in actionb. Summary Judgment reflects CL interest of narrowing it down to one issue and

deciding itc. Discovery from CL and today, same concerns of whether it goes too fard. Injunctions as in equity, today you have to show other relief falls short

E. Field Code Pleading1. adopted by State Legislatures, reflected populous interest in law being clearer.2. goal = simplify pleading and focus on merits. Address all elements and explain case

clearly.3. Three stages of pleading: complaint, answer reply4. Must plead the facts constituting cause of action and can not plead conclusions

(allegations which are too general) or evidence (allegations which are too detailed)a. Had to have facts to support every element of claim you make, but not necessary to

prove them. Purpose was to establish every element of the substantive law.b. Short and plain statement of claim

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c. P need not fit facts into particular forms of action. Entitled to recover under anylegal theory applicable to facts pleaded.

d. Cant plead conclusions b/c it wont weed out non-meritorious cases (wont know ifthere are facts to back up conclusions) and it doesnt give D adequate info aboutclaim

e. Cant plead evidence b/c we dont want trial to take place in pleading stage.5. Pleading can be insufficient (demurrer) if: (only in first 2 cases does leave to amend

make sense)a. failure to allege facts or legal conclusions that establish element of law in

question.b. States conclusions of law but fails to allege factsc. Alleges facts relevant to each element of the law but theres no legal sufficiency.

6. Problems:1. hard to determine exactly sufficient facts (what is not evidentiary or conclusive)2. overly technical process.

7. Code pleading is still the system in some states CA and IL8. This merges procedures of law and equity but keeps the remedies distinct.9. Far fewer pleadings in each case b/c theres no objective to reduce the case to a single

issue through a pleading dialogue.10. Gillispie v. Goodyear Service Store (p. 392)

a. Case dismissed with leave to amend b/c P only alleged legal conclusions but failed toallege facts necessary to establish elements of law i.e. facts didnt constitute causeof action

b. msg. of this = dont plead conclusions, plead factsc. choose better facts -- she alleged they trespassed. But she doesnt identify.

Goodyear probably has no idea how to respond to complaintd. Why would P appeal?

1. P has few facts to lay out and the more she does, the more ridiculous her caselooks

2. Prolonging lawsuit increases chances of settling out of court3. P sincerely believes shes been wronged but most of supporting info is in Ds

hands (discovery)F. Rule 8 Pleading under Federal Rules (Notice Pleading all it requires is to provide notice)

1. Pleading established in a very general way but must include (FRCP 8(a)):a. grounds for jurisdictionb. claim for reliefc. relief sought

1. P neednt plead facts as long as his claim is something legally cognizable. Hemust, however, allege all the elements required by substantive law to satisfy acause of action.

2. General:a. used in all federal courts and some state courtsb. conclusions can be plead but there still must be some factual basisc. development of facts takes place in discovery stage (shift in focus to discovery)

3. Purpose:a. to ID transaction from which the Ps claim arises, so D has notice

b 4. Duncan v. AT & T (didnt even mention what race she was) (p. 401)a. Problems with complaint

1. Fails to state a claim (for a 1981 violation) in which relief can be granted (courtcant even deal w/ that) -- She doesnt give facts element not IDd

2. Complaint is so poorly composed as to be functionally illegibleb. Must allege some facts in the complaint in order to provide notice to D and survive a

12(b)(6) motion1. cant conclude discrimination without anything else2. must give notice to D

c. complaint harshly dismissed, with prejudice

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5. Rannels v. SE Nichols (p. 409)a. failure to show probable cause said district court BUTb. court of appeals reversed. Read factual allegations literally and interprets law to

support elements of Ps malicious prosecution claim. Remember, this isnt codepleading. It can be bare bones complaint.1. Averment in complaint that Ds president support the malicious prosecution

enough to support the element of malice in the claim.2. Averment that Ds knew the reason or the stop order on the check was the

dispute over defective merchandise and that such knowledge established wantof probable cause for criminal proceedings.

c 6. Complaint Bare bones vs. completea. Reasons to make it complete:

1. impress judge sympathetic as possible at first intro.d 2. Scare opponent

3. For the press4. D. must reply line by line5. If you allege a lot, there may be automatic disclosure

b. Reasons for bare minimum1. dont want to reveal too much to opposition2. so youre not held to things you plead that may not be true

3. if youre not sure of merits and you need factsG. Consistency in Pleadings: Rule 8(e)(2)

1. ideas that are apparently inconsistent may be pleaded alternatively or hypotheticallya. meant to be done in good faith b/c P doesnt have all information and doesnt know

which to allege1. pooling of resources and evidence leads to a more efficient and single just result2. tempered by burdens of proof. May realize they may not convince jury3. will have one story by time of trial

e b. P can only plead inconsistent versions of fact if P indicates some good reason whyhe wouldnt know which was true

H. Sanctions: Rule 111. look to actual bad faith of lawyer

a. why? To promote self policing by attorneys and to deter groundless and frivolous

claimsb. provides a check for ease of access to courts resulting from liberal pleading

2. applicable to all filings except discovery3. by signing a filing, a person certifies:

a. reasonable inquiry with regard to factual and legal grounds for positionb. allegations have evidentiary support (FRCP 11(b)(3))c. claim is supported by law (FRCP11(b)(2))d. paper not filed for improper purpose (FRCP 11(b)(1))

4. Sanctions:a. Initiated by motion made separately from other motions FRCP 11(c)(1)(A)b. highly discretionary as to whether the court will even impose them (FRCP 11(c))

1. lots of stigma so not lightly imposedc. great latitude in selecting the sanction (FRCP 11(c)(2))

d. imposed for deterrence reasonse. if monetary, paid to the court and this is therefore not a fee-shifting devicef. discretionary whether to award attorneys feesg. no monetary sanctions on represented parties, just lawyers or law firms (FRCP 11(c)

(2)(A))

5. Procedurea. motion for sanctions must be made separately (FRCP 11(c)(1)(A))b. 21 day safe harbor provision motion must be served on the party, and not served to

the court until 21 days later, so as to give the offending party a chance to amend itsfiling without suffering sanctions (FRCP 11(c)(1)(A))

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c. court may itself impose Rule 11 sanctions (11(c)(1)(B))d. reviewed under abuse of discretion standard

6. Business Guides v. Chromatic Communications p. 417a. violation of 11(b)(3) that means P stated facts without evidentiary supportb. P had plenty of time to correct errors in identifying seeds to confirm copyright

infringementc. 1993 amendment made sanctions optional provided alternative to attorneys fees.

1983 amendment mandatory sanction of attorneys fees which led to explosion.7. RTC v. Gerbode p. 420

a. frivolous claim signed by lawyer Rule 11(b)(2) violation Ps complaint rested onunreasonable reading of law

b. Groundless RICO (racketeer/corruption act) action not warranted by existingevidence

c. Monetary sanctions cant be imposed against party for 11(b)(2) but can be imposedagainst law firm

d. Monetary sanctions awarded instead of nonmonetary sanctions b/c the complaint hadalready been dismissed.

e. safe harbor (21 days) Rule 11(c)(1)(A)1. safe harbor provision forces a response to complaint since responses must occur

within 20 days, yet a Rule 11 filing may not be filed until 21 days after the

complaint. Contradictory but not resolved here.8. Rules 11 vs. 12(b)(6)

1. Rule 11 = attack on people vs. attack on paper2. You could file both (separately) but this might piss off judge and its expensive3. 12(b)(6) doesnt have 21 day period and stops the clock4. 12(b)(6) if motion wins, litigation is dismissed (some times with leave to

amend)I. Burdens of Pleadingsf 1. Why important?

a. tends to follow closely burdens of proofb. if one has burden of pleading, one loses if one fails to carry burden

g 2. Possible rules for establishing burden of pleadinga. give burden of pleading to party with greater knowledge of act i.e., P is in best

position to know whether he was negligentb. give burden to party contradicting usual state of affairsc. statutory language may give clues; unreliable method in close cases

h 3. Risk of not pleading an element youre supposed to:1. complaint is vulnerable to a 12(b)(6) motion

J. Defendants Response to a Complaint: Rule 121. pre-answer motion (alternative to answering) permits D to raise certain types of

objections to the action at very early stage (motion = request for specific relief sought)a. raise objections

1. motion to dismiss 12(b)(6)2. motion for a more definite statement: 12(e)3. motion to strike 12(f)4. motion for judgment on pleadings 12(e)

5. motion for SJ: Rule 56b. Why?i 1. avoid revealing handj 2. limit or dismiss casek 3. buy time

2. If D makes no such pre-answer motion, or if it is denied, D must file answer3. when answer is presented: Rule 12(a)

a. within 20 days after being served summons or complaint1. if the pleading in question is an amended pleading, response period is 10

days underRule 15(a)

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b. if waiver of service of summons, within 60 days after requestc. If D files a 12(b) motion, hell have 10 days after motion is denied to file his answerd. If Ds answer includes a counter-claim, P must file his reply within 20 days

4. Defenses that can be raised as a motion (not just responsive pleading) (Rule 12(b)) based solely on pleadings:a. lack of jurisdiction over subject matter -- (this can be raised at any time 12(h)(3))b. lack of jurisdiction over personc. improper venued. insufficiency of processe. insufficiency of service of processf. failure to state a claim upon which relief can be grantedg. failure to join a party under Rule 19h. b,c,d,e waived if not consolidated (12(g)) or if not in first responsive pleading or pre-

answer motion (12(h))i. If D has suffered any prejudice from these, he should be able to tell right awayj. f and g may be made at any time before and during trialk. any 12(b) defense stops the answer clock until judge makes ruling. P can amend

complaint any time before thenl. 12(b) defenses are also available to P when D answers (cross-claims, affirmative

defenses, etc)

5. Fatal:a. subject matterb. lack of jurisdictionc. improper venued. 12(b)(6) although usually P will be given one chance to amend

6. Motion to Dismiss for Failure to State a Claim Rule 12(b)(6)a. tests legal sufficiency of Ps claim. Motion should be granted where:

1. P states claim that doesnt exist under current law2. P has failed to allege all necessary elements of cognizable legal claim

b. Black letter law = complaint shouldnt be dismissed unless court is certain that Pcant prove a set of facts in support of claim that would entitle him to relief

c. court doesnt consider any evidence or pleadings besides complaint when decidingmotion

1. if matters outside the pleading are presented to court as part of motion, motion istreated as a SJ motion under Rule 56

d. in considering motion, pleadings must be liberally construed in favor of sustainingcomplaint (assumes facts are true)

e. dismissal of suit for failure to state a claim is a drastic measure. However, dismissalis usually without prejudice and P can file an amended complaint.

f. Certain claims must be pled with particularity and therefore the 12(b)(6) motion willbe granted on easier grounds than in other claims (i.e. fraud, mistake, civil rights)

g. Motion to dismiss ruling is not appealable but actual final judgment is7. Motion for judgment on pleadings: Rule 12(c)

a. can only be made after pleadings are closed (i.e. after answer has been filed).Different than 12(b)(6) b/c thats made (generally) before D files answer and this isafter.

b. If, on motion for judgment on pleadings, any new evidence is introduced thats notcontained in pleadings, motion is treated as motion for SJ under Rule 56.

8. Preliminary hearings : Rule 12(d)a. defenses in 12(b) should be heard and determined before trial on application of any

party9. Motion for more definite statement: Rule 12(e)

a. Must be made before responsive pleadingb. not used anymore, instead rely on discovery unless claim can be refuted by filing a

12(b)(6) motion

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c. will be granted only when pleading is so vague and ambiguous that it would beunreasonable to require moving party to reply to it

d. Purpose = so D knows exactly what hes responding to10. Motion to Strike: Rule 12(f)

a. Before responding to a pleading (or if no responsive pleading is permitted) and ifmotion is made within 20 days after service of pleading, court may order stricken

b. either party may move to strike an insufficient defense or any redundant, immaterial,impertinent, or scandalous matter in pleading

c. strikes things that are inflammatory w/o cause (may depend on whether allegationsare likely to prejudice moving party)

d. used infrequently11. Consolidation of defenses in motion: Rule 12(g)

a. party may consolidate defenses in one motionb. if moving party omits any available defense or objection from the motion, the party

shall not thereafter make such defense or objection, except as provided in 12(h)(2)12. Waiver or preservation of certain defenses: Rule 12(h)

a. see aboveb. also, court shall dismiss action whenever it appears that it lacks subject matter

jurisdiction.K. Answers

1. Procedure:a. must be stated in short and plain terms (form same as complaint) and shall admit

or deny (FRCP 8(b)) and shall set forth any affirmative defense (FRCP 8(c))b. D must answer within 20 days of service (FRCP 12(a)(1)(a))

1. unless he files a 12(b) motion in which case he must answer within 10 days ofmotions denial (FRCP 12(a)(4)(a))

2. unless he waives service then 60 daysc. if D doesnt raise defenses of personal jurisdiction, venue, form of process, or

method of service of process in his answer, he has waived those defenses for all time2. Purpose:

a. responds to allegations in complaintb. asserts any additional info.

3. Forms of Denials Rule 8(b)

a. P maintains burden of proof in trial of things deniedb. Denials:

1. must fairly meet the substance of the averments denieda. General denial denies every material allegation in Ps complaint, incl.

Jurisdictionb. Specific Denial Denies allegation of a paragraph/averment of complaintc. Qualified Denial denies part of an allegationd. Denial of knowledge or information. Good faith belief complaint is false

but insufficient first-hand knowledge to back it up1. except when such info is certainly within ds control2. except when such info is public record

c. Failure to Deny: (Rule 8(d))1. averments in complaint are admitted when not denied in answer

a. except allegations of damagesb. except immaterial allegations

2. Zielinski v. Philadelphia Piers, Inc. (p. 454) (forklift. D denied allegations.Forklift was being leased. ) about answering Rule 8(b) required a morespecific answera. D. may not make general denial when his intention is to deny part of

averment and admit rest1. b/c of Ds improper general denial, D was estopped (prohibited) from

denying ownership of forklift

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2. P encouraged an unclear response by consolidating a number ofallegations in one paragraph of complaint

b. Entity that has to pay is insurance companyc. Specificity in answer must match specificity in complaintd. D has obligation to make denials with enough specificity so that a

reasonable P would be alerted to individual matters deniedl 3. Affirmative Defenses

a. New matter D must prove in order to avoid Ps claim Defenses relying on factsparticularly within Ds knowledge to be found in affirmative defense

b. D bears burden of proof of affirmative defenses at trialc. Must be specifically pleaded or else right to use them waivedd. Layman v. Southwestern Bell Tel. Co. p. 460 (digging ditch)

1. easement is an affirmative defense and certain kinds of affirmative defenses(when D. intends to rest his defense upon some fact not included in allegationsnecessary to support Ps case) shall be preceded to a preceded pleading. Dshould have said this in his answer.a. avoid surprising P at trialb. lay out responsibility of burden of proof

2. follows a statute like 8(c)3. D could still amend its answer to extent that it doesnt prejudice P

4. D must plead affirmatively and prove his affirmative defensesm e. List of Affirmative Defenses (FRCP 8( c))

1. contributory negligence2. fraud3. res judicata4. statutes of limitations5. illegality

n f. Qualified immunity1. requires heightened pleading b/c idea of qualified immunity (if actions took

place under reasonable misapprehension of law) is to protect govt2. This immunity is more than a defense, its a right not to stand trial3. This is often pleaded in response to a 1983 permits a suit against those who

act under color of law to deprive people of constitutional rights

4. this is at odds with Rules preference for discovery5. Leatherman doesnt resolve this problem it held courts couldnt require more

specific pleadings of civil rights but didnt answer whether heightened pleadingrequired in cases involving individual government officials (as opposed to govtentities in Leatherman)

6. Schultea v. Wood (p. 435) (applies to 5th Circuit only) P. need not anticipatequalified immunity defense but will be required to respond with particularity

1. idea = protect govt officials from privacy-invading discovery7. Gomez v. Toledo p. 444 (P. gave testimony vs. 2 other officers statements.

Was transferred, demoted, charged with bugging phones, and fired.)a. Issue: Relying on qualified immunity defense, who has burden of pleading

good faith (if youre D) or bad faith (if youre P)?b. Holding: qst of good/bad faith is uniquely within Ds knowledge, so he

must plead affirmative defense of qualified immunity in his answer.c. Issue is about burden of pleading but its important b/c whoever has burden

of pleading good/bad faith will have burden of proof at trial (difficult for Pto prove may not be able to prove Ds mental state)

L. Reply 7(a)1. reply required if answer contains a counter claim labeled as such. If its an affirmative

defense, not counter claim, a reply technically isnt required.2. Also permits court to order a reply on its own motion or on motion of a party

M. Rule 15 Amended and Supplemented Pleadings1. Tries to balance easy amendment with prejudice

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2. Extent to which party can alter his case depends on stage of proceedings at whichamendment is sought

3. Prior to Triala. either party may amend once as a matter of right either before a responsive pleading

is served, or if none is allowed, within 20 days after the pleading (FRCP 15(a))1. motion is not a responsive pleading so if D files a 12(b)(6), P may still amend

b. party may amend by leave of court leave to amend shall be freely given when justso requires means that would be amender has a good reason for not getting it rightthe first time and that there would be prejudice. FRCP 15(a)1. court grants this liberally unless amendment is prejudicial2. Beeck v. Aquaslide p. 466

o a. absent a showing of actual prejudice to P or evidence of bad faith by D, leaveto amend shall be freely given by court

p b. here, denial of manufacturer of slide by D was not in bad faith (b/c manyimitation slides on market) and does not prejudice P (b/c he can still sue actualmanufacturer)

q c. still, its debatable whether theres actual prejudice. It will be a heavy burdenon P to find original manufacturer and the claim may be barred of Statute oflimitations has rund. did have another way out under fraud thing

c. motion to amend must be filed with court and if granted, amended pleading must befiled and served

d. response to amended pleading must be served within 10 days (FRCP 15(a))e. sole question on whether amendment is allowed is whether it results in prejudice if

the other party is worse off than it would have been had the material been included inoriginal document

f. Relation back (15(c)) what happens when P seeks to amend his complaint afterstatute of limitations would otherwise have run on new claim?1. applicable in statute of limitations cases2. at some point, D should no longer have to fear suit dont want it to intrude on

statute of limitations purpose3. if amended claim arose out of same conduct, transaction, or occurrence set forth

in original pleadings, it will be allowed after the statute of limitations runs b/c of

relation back (FRCP 15(c )(2))a. the D is not prejudiced b/c she had notice of a claim on the basis of that

particular fact setb. notice standard also used court asks whether original pleading gave D

notice of the claim now being asserted4. Moore v. Baker p. 474

a. allegations in original complaint that D violated informed consent lawsprior to surgery. P later attempted to amend complaint to allege negligenceduring and after surgery

b. court held that nothing in original complaint put D on notice that new claimof negl might be asserted at some point in future. P had no ground toamend.

c. relation back applies only when new claim applies back to old claim

5. Bonerb v. Richard p. 476a. Original complaint alleged P was injured b/c the basketball court was

negligently maintained and supervision badb. P moved to amend complaint to add new cause of action counseling

malpracticec. P had to amend b/c Statue of Limitations had run, and he had no other optiond. Court allowed amendment b/c it found same nucleus of facts supporting

original claim supported new claim. Therefore, D was on notice from factsin original complaint

6. Reconciling Moore and Bonerb

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a. when claim is original complaint is very narrow (as in Moore), D mightthink that general claim had been considered and rejected

b. when claim in original complaint is general, as in Bonerb, D should probablybe alerted to possibility that a more specific claim could arise

7. new defendants can only be joined after statute of limitations if they relate back,had notice within 120 days of complaint, and should have known that were it notfor a mistake of identity, they would have been named (FRCP 15( c)(3))a. Zielinski was before change of name rule

8. when amendment is to claim or theory, not underlying facts in support of claim,court will typically find that claim arose out of same conduct, transaction, oroccurrence (Rule 15(c )) and allow amendment

g. Amendment to conform to evidence Rule 15(b)1. when issues not raised by pleadings are tried by express or implied consent of

parties, theyll be treated as if they had been raised in pleadings2. amendment of pleadings as may be necessary to cause them to conform to

evidence may be made upon motion of any party at any time(even afterjudgment) but this isnt necessary b/c we focus on trial, not pleading now

3. contested amendment should be allowed liberally according to prejudice standard(15(b)). Also, merits of case should be serveda. Court also takes into consideration:

1. bad faith on part of party2. delay tactic3. repeated failure to cure pleading

4. general rule = truth seeking is protected unless actual prejudice is createdh. Amendment supersedes original pleadingi. Supplemental pleadings allowed by courts discretion, which it exercises liberally

(FRCP 15(d))

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III. Discovery pretrial between pleading and trialA. Purpose to obtain factual info. and narrow issuesB. Effects promote settlement, simplify pleading, alter litigation costs, harassC. Courts tend to stay out of discovery disputesD. Rules only apply when informal info. gathering doesnt workE. Basic Discovery Devices

1. Automatic/Pre-discovery Disclosure FRCP 26(a) has since 1993 provided forautomatic disclosure of certain info.a. Goals:

1. Give parties equal access to all data, to ensure adjudication of cases on theirmerits

2. Determine issues that are actually in dispute3. Preserve evidence that may be unavailable at trial4. To save expense and time on core info that would be discovered anyway

a. could be bad b/c it could lead to discovery litigation and b/c it takes awayfrom the adversary nature of the process

b. what materials? (FRCP 26(a)(1))1. identity and addresses of persons with relevant information2. relevant documents3. damages computation with supporting documentation

4. insurance agreement covering claims in the suit5. Later, closer to trial, must disclose:

a. identity and reports of experts (26(a)(2))b. names of witnesses and documents and depositions (26(a)(3))

c. must be made within 10 daysd. sanctions for failure to disclosee. Rule 26(e): parties under duty to supplement or correct disclosures if, for ex., new

info comes to light that wasnt available at time initial disclosure made.f. BUT most jurisdictions opt out of automatic disclosures 26(a) says federal

districts can decide for themselves whether to require thiseg. 26(f) requires parties to meet and confer about disclosure and subsequent discovery

before traditional discovery by interrogatories, requests for documents anddepositions

2. Depositions taking of oral testimony from witnesses Rule 30a. Guidelines:

1. both parties and non-parties may be deposed. Non-parties must be subpoenaed2. maximum of 10 unless court allows otherwise

b. Bad b/c:1. time consuming2. expensive3. generally inadmissible in court unless witness is unavailable, or for

impeachment purposesc. Good b/c:

1. witness is sworn and therefore her testimony is subject to penalties of perjury2. counsel gets to see witness and thus judge how effective theyll be3. examining counsel can frame follow-up questions and explore in detail issues

that arise4. gets deponent on the record commits her to a detailed version of the relevant

events and if she later changes testimony, this can be used to impeach hertestimony

d. Statements made in deposition can be used in a limited manner during the trial,although they arent considered to be admitted as under Rule 36.

e. Only questions about which the deponent has personal knowledge are allowedf. Tend to come after interrogatories and requests for documents so counsel will be

preparedg. Objections are noted but generally answers are still given (unless prejudiced)

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h. If deposing counsel wishes a non-party deponent to produce tangible evidence, theymust serve subpoena duces tecum to command production of request items

i. Time and place informally arrangedj. Counsel may cross-examine to clarify comments made during deposition or if it is a

trial deposition (to be read in place of live testimony)3. Interrogatories

a. often used as first step in discoveryb. guidelines:

1. may only be served on party2. maximum of 25 unless court allows otherwise3. may relate to fact or application of law to fact4. may be based on info to which he has reasonable access, not just personal

knowledgec. statements made in interrogatories not legally binding and may be contradicted in

courtd. advantage: cheaper than depositione. disadvantage: cant follow up with questions. May be ineffectivef. questions which are objected to are not answeredg. writtenh. often most effective in obtaining basic background information

4. Requests for Admission -- Rule 36a. means of narrowing the scope of the trial by eliminating uncontested issuesb. may be served on a partyc. functions more like a pleadingd. admissions are binding at trial (not like depositions and interrogatories)e. takes burden of proof off table

1. if party served and doesnt respond, it serves as an admission5. Requests for Documents Rule 34

a. requests may only be served on partiesb. party who produces documents shall produce them as they are kept in the usual

course of businessc. to get documents from non-parties subpoena (Rule 45)d. subject to abuse b/c inexpensive to make request but costly to meet it

e. intrusivef. parties may resist requests by construing them narrowlyg. Rule 34 not limited to documents it authorizes inspection of tangible things

6. Medical Examinations Rule 35a. requires court orderb. invasivec. parties onlyd. order can be made on motion, only for good causee. if party does obtain examination of another party, she must provide a copy of the

report to examined party if requestedA. Scope of Discovery

1. Discovery applies to everything thats relevant and not privileged. Very broad. Nothingto do with admissibility in court. FRCP 26(b)(1)

2. Court can limit this standard as it sees fit. Rule 26(b)(2)a. may limit length of depositions underRule 30b. may limit number of requests for admission underRule 36c. may limit discovery tools at its own discretion or pursuant to a motion for a

protective order to protect a party or person from annoyance, embarrassment, undue burden or expense under (c)

3. Attorney Client Privilegea. absoluteb. belongs to client it is she who can waive it

4. Work-product

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a. materials prepared and info developed in anticipation of litgation are onlydiscoverable if party can show a substantial need and inability to obtain material byother means (FRCP 26(b)(3))

b. only applies to documents or tangible things1. names of witness cant be withheld underRule 26(b)(3)2. an interrogatory asking for names of witnesses must be answered

c. mental impressions and legal theories not discoverabled. belongs to both client and attorney both must waivee. work prepared for litigation other than current litigation not protectedf. Purpose to maintain adversary process while also maintaining full factual

disclosure. Otherwise:1. attorneys would have no incentive to work hard b/c opponents could discover

their work2. clients would not be well-served3. other lawyers would freeload4. lawyers would have to be witnesses, which would pit them against their clients

and be potentially bad5. Hickman v. Taylor p. 521

r a. Ds attorney refused to turn over copies of witness statements and to summarize oralstatements taken from others connected to accident. (tugboat sinking). Didnt want to

give written nots from interviews or info on the interviews that wasnt recordedb. work done in anticipation of litigationc. Work product exception: no discovery on work products in this case b/c:

1. P. could have gotten info. in other ways2. Court held lawyers mental impressions absolutely protected3. Lawyers shouldnt be forced to produce new material for their adversaries4. No proof that production is essential to this case5. Not what discovery is about. Discovery is for facts and this is legal theories6. Lawyer shouldnt be forced to do his adversarys work encourages bad

lawyering7. Makes lawyer into a witness and pits them against their client8. Important to maintain prof. privacy of lawyers

d. This case was 1947 and 26(b)(3) was 1970

6. Work product protected except when theres no other way to get its a. 26(b)(3) decision tree (10/27)

1. is it a document or tangible thing? No, not under 26(b)(3) yes

2. is it irrelevant or privileged? Yes, no discovery. No

3. is it prepared in anticipation of litigation. No, discovery. Yes4. does the party need it and is unable to get it another way? No, no discovery.

Yes5. are there any mental impressions or legal theories in the evidence? No, 100%

discoverable. Yes, discoverable minus mental impressions and legal theories.t cant reveal list of who was interviewed b/c that reflects strategy

7. Differences between Hickman and 26(b)(3)a. Hickman applies only to lawyers while 26(b)(3) applies to anyoneb. 26(b)(3) applies only to documents and tangible things while Hickman applies to

anythingB. Expert witness Rule 26(b)(4)

1. like work product but not just document but also the person that is seen proprietarily2. rules grant protection to experts who have developed info in preparation of litigation

not just experts3. mental impressions of expert witnesses can be discoverable b/c this is the crux of expert

testimony4. testifying experts can be disposed after disclosure (FRCP 26(b)(4)(a))

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a. 26(a)(2) requires as part of initial disclosures, info about experts who may testify andabout basis for their testimony at least 90 days before trial together with a report withtheir opinions, compensation, qualifications, and bases for opinions

5. One issue is that some think it is impossible to cross-examine experts unless you haveprior opportunity to depose and see written report

6. non-testifying experts are rarely discoverable (FRCP 26(b)(4)(b))a. unless you cant obtain facts and opinions by other meansb. if theyre discoverable, both parties share costs of expertsc. disclosure of identities or opinions not required

7. informally consulted expertsa. virtually no way to obtain discoveryb. you may be able to get names of informally consulted expertsc. Rule 26(b)(4)(B) isnt clear about whether or not these names must be disclosed

8. Reason to protect experts from discovery:a. attorneys need to prepare their cases w/o fear that any negative info they uncover

will necessarily be turned over to opposing partyb. unfair to allow a party to benefit from the effort and expense incurred by other party

in preparing his own casec. unfair to experts and might diminish their willingness to serve as consultantsd. risk of prejudice if an expert is retained by both sides

9. party seeking discovery must compensate expert witness for his time unless manifestinjustice would resultRule 26(b)(4)(C)

10. Thompson v. Haskell p. 536 psychologista. P alleged that as a result of sexual harassment by employer, she was fired and

became extremely depressedb. Psychologist examined P 10 days after termination. D sought discovery of reportc. Here there were exceptional circumstances requiring disclosure of report. In light

of Ps allegation, her emotional state immediately after discharge was highly relevantb/c this was only report made on her condition and because of passage of time, Dcouldnt obtain comparable info by any other means.

d. if it is impractical for party seeking discovery to obtain info any other way, non-testifying expert testimony is discoverable

11. Chiquita v. M/V Bolero Reefer p. 537 boat

a. Ps expert examined vessel and loading gear. D sought to compel production of filecompiled in his investigation.

b. Court held opinions of non-testifying expert not discoverable although factualobservations are

c. No exceptional circumstances b/c D could have sent its own expert to investigated. Not the case that any document in experts possession is protected from discovery.

Like work product doctrine, underlying facts are discoverable while opinions andmental impressions arent.

F. Discovery Abuses1. Types of discovery abuse:

a. asking for too much1. rules limit number of interrogatories and depositions allowed

b. providing too little

c. mismatched discovery when parties have unequal wealth2. court may issue protective orders to prevent undue burdens only a showing of good cause

by party FRCP 26( c)3. Two basic ways for court to control discovery:

a. protective order: Rule 26 ( c)1. response to party that asks for too much

a. although id party is asking for stuff thats privileged or irrelevant, one maysimply decline to answer

2. court may limit discovery even if it is otherwise discoverable if it producesembarrassment, undue burden, expense, etc

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b. motion to compel: Rule 37(a)1. response to party who gives too little

c. other solution = discovery conference (Rule 16) where judge is involved in framingof discovery plan

G. Rule 37 Sanctions1. Basic idea:

a. parties should try to work out their own problems before going to judgeb. court has broad discretion whether to impose sanctions or not. Tends to choose least

severe or most deterrent one.2. Before theyre imposed, party seeking discovery must obtain an order compelling

discovery.3. Sanctions can be orders establishing facts, disallowing certain claims, dismissing the

case, finding you in contempt of court, etc4. Rule 26(g) also sanctions on discovery b/c signature of lawyer certifies discovery isnt

unreasonable or unduly burdensome or expensiveH. Appellate Review of Discovery Orders

1. Not final, so theyre not appealable usually2. Trial court can certify qst. for appeal3. Appellate court can issue mandamus if it really wants to review order

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IV. SettlementA. P or court can dismiss case by filing notice of dismissal (FRCP 41(a))B. Discovery drives people to settle

1. Reasonsa. Leads to rational decision making info exchanges frame the issue very well

allows parties to see strengths and weaknesses of caseb. Sometimes discovery makes it so you cant afford to continue (worst case)c. Makes people see how expensive it would be to go to triald. To avoid more embarrassmente. Shift from adversarial pleadings to less adversarial discovery (ex=guys smoking)

2. cases are less likely to settle when result not predictable3. settlement negotiations can be undertaken with a zero sum approach, a cooperative

approach, or combination of twoC. Settlement = Contract

1. Thats why courts dont get involved unless class action or incapacity2. Typical kinds of contract

a. to dismissb. for confidentialityc. for a judgment

3. Both parties give and get things

a. For P:1. money2. confidentiality3. clear enforceability4. enforceable in federal court

b. For D:1. confidentiality2. promise not to sue

c. For both:1. cheaper 2. faster 3. perhaps qualitatively better b/c can take into account nuances and subtleties in

facts and parties interests that could be lost at trial

4. BUT may permit might to triumph over right and deprives public of adjudicationon issues

4. voluntary dismissal (Rule 41(a)) file a notice of dismissal at any time before service byadverse party of an answer or of motion for SJ

5. If D wants lawsuit not only to go away but for court to enter judgment on merits, a publicact rejection Ps suit, a voluntary dismissal wont do that but involuntary dismissal (Rule41(b)) does this is for failure of P to prosecute or to comply with rules. Also allowsscope of claim to be defined by doctrines of former adjudication rather than contract ofsettlement.

6. Future disputes hinge on interpretation of contractD. Court involvement in settlements

1. Courts some times play an active role in settlement in following ways:a. when they need to clear out their dockets

b. when parties are having a hard time playing both agreement and adversarial roles atsame time the court can bring parties together for settlement conferences

c. judges can give estimation of strengths and weaknessesd. judges can act as authoratitve mediators

2. Problems with court involvement (controversial):a. courts should be resolving disputes based on meritsb. courts may be said to use coercive judicial power to force settlementsc. prejudice:

1. judge may be prejudiced against party that refuses to settle2. judge will be aware of weaknesses of case, might be biased

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3. statutorily, this is not a big problem b/c magistrate presides over settlementnegotiations

3. courts dont review settlement b/c:a. too expensiveb. people should be accountable for own actions (autonomy)c. benefits lost if courts get involvedd. EXCEPTIONS:

1. class action suitsa. to make sure it benefits all and not just those at table

2. minorsa. cant accurately assess their interests

E. Settlements affect future disputesF. Kalinauskas v. Wong p. 583

1. P wanted to depose Ms. Thomas who had signed a confidential settlement agreement forSH action against the same D (Caesars)

2. Court held Ms. Thomas could not discuss terms of settlement but she could disclose factsunderlying her action

3. Analogous to work product protectiona. you can get at underlying factsb. actual details of agreement worked out by parties not available

4. Courts justification = to avoid duplicate discoverya. dont want parties to start from scratch in order to get relevant details from previous

caseb. court doesnt invalidate entire settlement, only eliminates confidentiality term that

inhibits discovery1. clause in agreement that allows for courts to alter confidentiality clause2. if it didnt include this, court would have likely assumed it was meant to be

included5. concerns that court addresses by allowing Ms. Thomas to be deposed:

a. ensures that next piece of legislation is efficient w/o duplicative discoveryb. general public policy interest in finding out whether Caesars discriminates against

womenc. preventing deposition would constitute buying silence of a witness with settlement

agreement"6. confidentiality agreements only go so far

a. we dont want people buying silence of future witnessesb. but this may undermine confidence in settling

G. Negotiating away Judgments1. Settlement arises after judgment b/c of appeal:

a. same concerns about costs and risks of loss exist at next level of process2. reasons for settling before appeal trial, rather than awaiting decision on appeal:

a. costs of litigationb. bluffing, important in settlement, no longer a factor after judgment

H. Vacatur 1. Why parties want to vacate judgment:

a. D may not want to have public declaration of unlawful activity on books

b. Party may be afraid that rule of law set forth in case will be applied against it infuture1. vacated judgments dont have precedential weight

2. Neary v. UC Davis p. 589a. state case didnt set big precedentb. P won $7M in defamation casec. While an appeal was pending, P settled for $3M. In return, he agreed to dismiss

appeal w/o prejudice. As part of settlement, parties stipulate that CA should vacatetrial courts judgment

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d. Court holds parties should be entitled to stipulate reversal unless theres a showing ofextraordinary circumstances

e. Dissent comes up with own rule CA should only approve vacatur when judgmentbenefits neither the public at large nor third parties

f. Arguments in favor of post-judgment settlement1. settlement is good in that it increases judicial economy

a. avoids future expenses for parties and court resources2. Its in fairness interest of parties denying post-judgment settlement would

frustrate parties mutual desires to immediately end long running dispute3. Purpose of judiciary = provide a forum for peaceful resolution of disputes

g. Arguments against post-judgment settlement:1. vacatur will create disincentive for earlier settlement

a. if trying to ease cost of litigation to parties and drain on courts resources,court would want to reduce costs at trial court level. If parties wait untilverdict has come in, theyve incurred the cost of litigation and raiseddifferent settlement issues

2. diminishes respect given to judiciarya. Dissents argument in Neary purpose of judiciary is to settle issues,

interpret and make law not just for parties involved but for others3. U.S. Bancorp Mortgage v. Bonner Mall -- p. 592

a. Parties settle after a dispute over new value exception. Settlement moots theircase.

b. After settlement, Bancorp tried to get judgment vacated because nve affected theirability to foreclose1. decision on matter of law that has more impact that in just this case

c. Bonners business will rely on ongoing validity of nved. Court held that mootness by reason of settlement doesnt justify vacatur of prior

judgment1. theres independent significance to judicial determination. Doesnt exist solely

for partiese. only alternative is for Bancorp to go back to AC and have them reconsider

judgment1. might give process more integrity if court that issued the judgment, and only that

court, is allowed to give vacaturf. bigger stuff at stake federal

4. Diffences between Bancorp and Nearya. In Bancorp, vacating judgment not part of settlement as in Nearyb. In Bancorp, hot, unresolved bankruptcy issue in dispute. In Neary, fairly

straightforward defamation case.c. Neary vacates judgment of a trial court whereas Bancorp was asked to vacate

judgment of an appellate court1. Appellate judgments have greater precedential significance than trial court

judgments, so SC might have been more reluctant to vacated. In Neary, both parties agreed to vacature, whereas in Bancorp, only loser wanted the

judgment vacated1. undermines autonomy of parties to settle argument.

e. perhaps only when issue applies to private parties, as in Neary, and where there isnta broader qst of law, it is OK to vacate judgment1. Bancorp court suggest that even if there were mutual agreement on this private

matter, court would refuse to vacatef. In Bancorp, party gave up right to appeal voluntarily, and that is what created

mootness1. this is different from cases where mootness arises unintentionally2. in this settlement agreement, but for action of loser, the case would not have

been moot (Bancorp instigated and wanted a post-verdict settlement b/c theylost)

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3. If loser chooses not to press legal issue in higher court, that doesnt give himoption to challenge opinion (other than through appeal) D shouldnt get benefitof this circumnavigation

g. under Federal Rules, vacatur not allowed except under extraordinary circumstances1. under California Law (Neary), vacatur can be granted unless there are

extraordinary circumstances5. Rules:

a. when mootness caused by external factors, not by parties, it is appropriate to facate(thus future cases will be able to be heard all the way up)

b. when caused by unilateral action by winner, it is OK to vacate (i.e. winner decidesand loser has no part)

c. if caused by unilateral action of lower or mutual act, its not OK to vacate(perhaps b/cprecedent belongs to community)

I. Fee shifting and settlement1. Rule 68

a. If D offers to settle and P eventually wins less than that ammount, P may not collectcosts and must pay Ds costs incurred after offer

b. If P should be entitled to attnys fees by virtue of a fee-shiftin statute, costs affectedby Rule 68 do include attnys fees

c. Must be offered 10 days before trial begins. OR if liability has been determined at

trial but amount isnt must be served not less than 10 days prior to commencement ofhearing to determine liability.

2. Separating Lawyer and Client:a. Encourages settlementb. Encourages litigation by poorer plaintiffsc. Evans v. Jeff p. 343

1. Court holds that Fees Act (allowing prevailing party to recover reasonableattnys fees in certain civil rights actions) doesnt prohibit settlements whichinclude a condition that attnys waive their fees

2. Attny in this case = legal aid attny == without money from this settlement,theres less money available to serve needy clients

3. Strongest argument for amending Fees Act to prohibit fee waivers like this insettlements = discourages ethical lawyers from pursuit the litigation the Fees Act

is trying to encourage b/c lawyers will refuse to take cases knowing they wontbe paid

4. Court says -- fee waivers are OK b/c its in the best interest of the client10. Why Settlements Fail:

1. parties may be overly optimistic2. bilateral monopoly problems both parties may be bluffing as a part of strategy

negotiation11. Settlement can occur at any time from grievance to after trial

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V. Prelim Relief (Provisional Remedies)A. Provisional remedies = relief pending final adjudication of suitB. Can occur any time from complaint to trialC. As practical matter, prelim often ends caseD. Party feels like he cant wait for trial for reliefE. Problems:

1. often based on incomplete info2. court often asked to act without benefit of adversarial exchange that would accompany

trialF. Preliminary Injunction Rule 65

1. Definition:a. Court order directing a party to avoid certain conduct or perform specific acts before

court decides on merits of case.b. Consolidation of Prelim Injunct hearing with the trial on merits: Rule 65(a)

1. even if no consolidation, evidence received on application for PI, if admissable,becomes part of record and need not be repeated at trial

c. 65(a)(1) no prelim injunction issued without notice to adverse party2. Temporary Restraining Order: Rule 65(b)

a. Sought by a party when situation is so urgent that an injunction must be grantedimmediately before opposing party can even be heard

b. Time limit for TRO is 10 days with possibility of 10 day extensionc. Can be ex parte granted without written or oral notice to opposing party if:

1. clearly appears that immediate and irreparable injury, loss, or damages will besuffered by applicant before adverse party can be notified -- affidavit

2. applicants attny certifies efforts to give notice to opposing party and givesreasons why notice shouldnt be required

d. If TRO granted without notice, PI hearing will be set for earliest possible time andmoving party shall proceed with application for PI

e. Types of TROs:1. replevin court order that requires debtor to surrender goods that creditor

asserts have not been paid for2. attachment seizure of property3. garnishment asking a third party not to pay D money due to him b/c P has a

claim in it3. Security Rule 65( c)

a. party seeking TRO or PI must put down security to protect adverse party againstunwarranted injunction

b. parties must weigh strength of their cases in light of anticipated amount of security1. courts actually calculate amount2. built-in double calculation provides check on unfounded claims for PI

c. problem if one reason for seeking injunctive relief in the first place is difficulty ofcalculating damages, how do you decide amount of security?

4. Inglis v. ITT Continental Baking p. 349u a. P sought PI forcing D, its competitors to raise bread pricesv b. Lower court applied 4 part test to determine whether to grant application:

1. Normal Test

a. P will suffer irreparable injury if injunctive relief not grantedb. P will probably prevail on meritsc. In balancing equities, the Ds will not be harmed more than P is helped by

injunctiond. Granting injunction is in public interest

2. Alternative Test this court used:a. alternative test is courts four pt. Test the court of appeals says if harm is

sufficiently serious, then you only need fair chance (rather than likelihood)of success.1. courts less likely to use alternative if injunction is the last step

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5. PIs can be issued during a trial if theres a huge gap between time the trial begins and timejudgment will be handed down

a. often PIs when used as a method for interim relief, turn into last step b/c:1. they show how court feels about case (might want to go directly to settlement)2. they change parties positions such that it might not be valid to continue with a

trial any longerG. Provisional Remedies and Due Process

1. Rule 64: State law applies to actions involving seizure of property2. All State procedures for seizure are subject to Due Process Clause (14th Amendment)3. Fuentes v. Shevin p. 354

a. FL law allowed creditor to seize goods without a prior hearing or notice to debtor1. creditor had to post bond double value of property to be seized2. creditor had to assert to clerk in conclusory fashion that it was entitled to writ

of replevina. court order that requires debtor to surrender goods, that creditor asserts they

havent paid for, to court or creditor3. clerk is empowered to issue a writ summarily

b. PA law required a debtor to initiate a lawsuit himself if he wanted a post-seizurehearing

c. Violation of Due Process Clause b/c:

1. deprivation of property SC says theres a property interest even if P doesntown goods outright

2. under color of law (state action) the involvement of sheriff and clerk constitutesstate action. If they werent involved, P wouldnt have a claim in court underdue process

3. without due process- there was no hearing at which P could protest before herproperty was taken. The SC doesnt discuss what type of a hearing it should bethough.

d. SC holds that when State authorizes its agents to seize property in one personspossession upon application for such action by another party, there must be anopportunity for deprived party to be heard before deprivation of property takes place

e. It is not appropriate/sufficient to rely on creditors assessment of risk (as reflected insecurity posting)

1. theres a power disparity between large corporation and poor person2. even if corporations claim is weak, they might seize the property anyway,

thinking that the other party lacks the resources to bring an actionf. Cost benefit analysis of seizures

1. Like Greene, test for what kind of hearing is dependent on the cost, reliability,and magnitude of interests at stake

2. Cost of increased process < (chance of error)(interest of party with potentiallyerroneous deprivation)

3. Corporations oblig to post a bond does something to help reduce error rate4. Not clear how much more should be spent on improved process to reduce error

rate further5. Problem increased process can be costly. Probability of error is likely to

remain the same, although cost will go up with additional hearing.

a. these costs might be shifted to the customer, the very group were trying toprotect with improved process

g. creditors can still seize property without a hearing in some circumstances:1. in extraordinary or unusual circumstances2. public interest3. where its likely property will be concealed or destroyed if debtor is alerted to

seizure through a hearingh. Are Rule 65 TROs in trouble b/c of this ruling?

1. ex parte hearing = more reliable than none at all2. Fuentes particularly focuses on parties being heard AT ALL at a trial

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3. TROs involve timing issues you have an ex parte hearing and will have a PIhearing soon after but the TRO is necessary in a short amount of time. Itdoesnt last that long and costs of TRO are measured by potential harm to amoving party.

H. Timeline (11/4)1. summary judgment doesnt need trial2. settlement doesnt want trial3. prelim. relief cant wait for trial

C. look to case law for standards of prelim injunc. Rules are just procedures.

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VI. Summary JudgmentA. Purpose:

1. primary way under notice pleading regime to prevent factually insufficient claims anddefenses from going to triala. Looks at proof. You have to fight it by pointing to something concrete.b. Very common for D. to win b/c P needs to show every element while D need only

defeat single element of Ps claim.c. P has burden of proof for most elements.d. Proof thats adequate for P to avoid summary judgment against her is frequently not

enough to get summary judgment for her.e. If no one has evidence, D will prevail (b/c P must show POE)f. In some cases, P has proof thats not conclusive in its support for its side thats not

enough, has to be stronger than Ds caseg. If genuine issue of fact, should go to trialh. Shouldnt be who could get there faster

2. To allow early resolution of cases in which P meets burden of pleading the elements of acompensable claim but cant prove one or more of these elements (b/c if you cant proveone element, you have no claim):a. avoids delay and expense of going to trialb. BUT SJ can lead to additional expenses in discovery b/c parties want to get as

much info as they can in order to avoid SJ3. Avoids potentially irrational decision making by jury

B. Timing Rules 56(a) and (b)1. For P: may be filed any time after 20 days from commencement of action or after service

of SJ motion by opposing partya. this period matches 20 day period given to file an answerb. P can file SJ before complaint is served (has 120 days between filing of complaint

and service)1. period of time for riling SJ tied to filing of complaint, not service on D.

2. For D: may file any time although SJ filings usually dont occur on either side until afterdiscovery

C. Legal Standard FRCP 56(c)1. motion shall be filed at least 10 days before time fixed for hearing

a. hearing is not on merits of action no live testimonyb. hearing explores whether theres a genuine issue of fact

2. SJ shall be rendered if pleadings, fruits of discovery and affidavits show that there is nogenuine issue as to any material fact and that the moving party is entitled to judgment asa matter of lawa. SJ, interlocutory, may be given on issue of liability although theres a genuine issue

as to amount of damages3. SJ appropriate if no reasonable jury could decide in favor of non-moving party (some

times) some courts use thisa. question of reasonable jury left to discretion of judgeb. If reasonable jury could go either way, SJ is inappropriate

4. If granted, appealable. If denied, not appealable until after trial.D. Form of Affidavits, further testimony, defense required FRCP 56(e)

1. Affidavits should be made on personal knowledge2. Must set forth facts as would be admissible in evidence

a. Affidavits dont have to be admissible themselves, but they must show that party hasaccess to admissible evidence

3. must be signed and sworn to statementsw E. Visser v. Packet Engineering Associates p.621

x 1. age discrimination suit P fired months before pension came to terma. court granted SJ to employer even though P had certain facts on his side (i.e.

pension, replaced by younger employee, etc)

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b. court sent msg that when burden is on P to prove a material fact, even some relevantinfo may not be enough to survive SJ motion

c. given Ps burden of persuasion (POE???), he must submit more info.1. reasonable jury standard theyre not going to believe its because of age2. burden shifts because mixed motive case D. has to show he would have been

fired anyway but P. has to show this is one of the reasons.I. Defense Required:

1. If movant shows that theres no material issue of fact, opposing party cant avoid SJmerely by repeating his pleadings denial of allegations. Then he must set forth specificfacts showing theres a genuine issue for trial. (FRCP 56(e))But the party opposing isnot required to make an evidentiary showing unless movant clearly demonstrates the lackof a triable issue of fact (non-movant receive benefit of doubt)

J. Celotex Corp. v. Catrett p. 6161. P accused Celotext of distributing asbestos containing products that contributed to her

husbands death2. Celotex moved for SJ on grounds that P failed to produce evidence that a Celotex was

proximate cause of her husbands death3. Court held that in an unopposed SJ motion, burden on moving party is merely to show

or to point out to court that theres an absence of evidence to support an essential elementof non-moving partys claim

a. moving party (celotex) does not, therefore, have to affirmatively prove theyre notresponsible

b. merely have to point to an absence of clear evidence much easier standardc. P. has burdend. Dissent called for a more exhaustive account

4. Big deal case set forth that D. doesnt have to negate claim. Summary judgment nowmore popular

K. Affidavits unavailable FRCP 56(f)1. If adverse partys affidavits show party cant, for reasons stated, present by affidavit

essential facts to justify party' opposition, court may order a continuance, etc.. so partymay obtain necessary materials

L. Affidavits in bad faith FRCP 56(g)1. If the court is satisfied that affidavits are presented in bad faith, or solely to delay, court

can order party to pay reasonable expenses including attnys fees and any offending partyor attny may be held in contempt

M. Green v. Lindsey (packet first case see earlier)1. case was presented on cross-motions for SJ2. tenants would argue that theres no genuine issue of material fact posting simply was

unreliable3. sheriffs response even assuming we agree on reliability of posting, it doesnt matter

b/c posting doesnt violate Due Process as a matter of law4. SC could therefore deny sheriffs SJ motion b/c 70 year old law no longer applied and

could deny tenants SJ motion b/c facts were in disputeN. Bottom Line

1. point of SJ is to avoid trial but parties have a constitutional right to a jury trial and thegeneral interest lays in getting to underlying facts in a case

2. qst. of whether SJ is appropriate is therefore couched in terms of whether reasonabletrier of facts would find that theres no issue about a material fact

O. Concerns about summary judgment1. might get wrong decision2. deciding on paper rather than in person

P. Comparison of SJ with 12(b)(6)1. similarities:

a. both ask a court to get ride of a case based on substantive lawb. both point to lack of support in record for a partys claim

2. differences:

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a. SJ pierces the pleading by looking at actual proof behind pleading1. even if it appears from pleadings that parties are in dispute on some material

issue of fact, SJ motion may be granted if movant can show that theres no issueof fact presented by pleadings (it only appears that way)

2. 12(b)(6), in contrast, assumes that allegations put forward in complaint are alltrue and is granted when theres a flaw in pleading (not a flaw in evidence, as inSJ)a. parties can plead things vaguely enough in a complaint, under notice

pleading regime, that it will not become clear until later that theres no issueof a material fact. Case can then be dismissed by SJ.

b. In SJ motions, court issues a judgment on merits (res judicata and collateral estoppelimplications???)

1. in 12(b)(6), court dismisses complaint w/o making decision on underlying meritsa. in addition, judge may allow for amendment

c. SJ can be brought by either party (although its easier for D to prevail) but 12(b)(6)only brought by De. SJ can resolve portions of complaint but 12(b)(6) is all or nothingf. Affidavits and fruits of discovery must be attached to SJ motion as additional support

for motion1. 12(b)(6) stands alone no additional info is attached b/c it only looks at the

face of the complaint

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VII. Jury Trier of factA. Background

1. Fact-finding before juries (trial by ordeal, etc)2. First juries self-informing and chosen for being experts3. Rest of system merged law and equity but not jury part4. Purpose = resolve disputes of fact

a. determine factsb. evaluate legal consequence of facts according to judges instructionsc. present the result of deliberation in a verdict

5. FRCP 39 trial shall be by jury unless parties consent or court finds right to jury trialdoesnt exist

B. Why have?1. provide peoples safeguard. Basic piece of democratic system2. thought to be more sympathetic to rural over urban, domestic over foreign3. might protect against political whims4. 7th Amendment

C. Jury good1. group decision making2. range of perspectives3. operates in black box (neutral)

D. Jury bad1. single decision maker may be betterjury may be indecisive and have a deliberation

problem2. expertise problem3. expensive to get juries. Jury trial also more formal and expensive4. black box5. jury nullification

E. Who gets a jury?1. 7th amendment In suits at common law, where the value in controversy shall exceed

twenty dollars, the right of trail by jury shall be preserveda. FRCP 38(a) right of trial by jury as declared by 7th amendment shall be preservedb. FRCP 38(b) any party may demand a trial by jury of any issue triable of right by a

jury by serving upon other parties a demand at any time after commencement of

action and not later than 10 days after service of last pleading and then filing thedemand.

c. Failure to serve and file a demand constitutes a waiver by party of trial by jury(38(d))

2. If Court of Chancery (equitable claims), no jurya. injunctive relief, specific performance, multi-party, rescission, accountings,

procedural devices such as derivative suits, class actions, bills of peace, and bills ofinterpleader, also fraud, mortgage, trusts

3. How do you decide?4. General Rule: try to match modern cases to those in equity and CL courts in 1791.

Helpful guideline: when relief sought is damages, theres a right to jury trial. Wheninjunctive relief is sought, theres no right to jury trial.a. problem is with modern claims, where its not easy to match the modern claim to the

1791 claim, particularly if its a new type of case, or one brought under a new statute.5. any kinds of relief Common Law allowed for as of 1791 ex = damages, straightforward

suitsa. mismatches between 1791 and now

1. changes in forumsa. administrative agency

1. Reasons to retain jury right in an administrative contexta. Area used to be governed by jury trial & still have a right to be

tried by peers

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b. less biased b/c not insiders govt. actor is prosecutory, govtinsider is judge, this is exactly where there should be regulationand outside eyes, to offset the strong govt influence

c. ALJs have political considerationsd. Congress shouldnt be able to do indirectly what it cant do

directly (limit the scope of jury trial under 7th amendment)2. Arguments against juries in these situations:

a. Appeals of these types go straight to Court of Appeals whichaffords protection against an agency biase

b. expertise problem we want expertise in trial, repeat adjudicators,and consistency all things that will be lost if the case is tried byjury.

c. take longer and whole part of ALJ = efficiencyd. this is not a private dispute: involves interests of government as

sovereign. Not analogous to historical view of right to trial by juryin cases that were based on private issues

3. Atlas Roofing v. OSHA p. 663a. no right to a jury trialb. 7th Amendment not a bar to procedural innovation

1. Congress can create administrative agencies and assign them

matters that might otherwise have been heard by a juryc. Supreme Court holds that when public rights are being litigated, no

right to trial by jury exists1. public case where the government acts in its sovereigncapacity

4. Granfinanciera v. Norberg p. 664a. bankruptcy courts operate without juries. Company wants jury

trial.b. Historical analogy is fraudulent conveyance jury trial in 1791

so does establishing another court system (admin) get rid of thatright?

c. Problem with jury, according to Trustee:1. will slow down process of dissolving assets and clearing the

books.2. This is an administrative proceeding, which normally doesnt

have a trial by jury3. Loss of expertise if tried by a jury

d. benefit from having a jury1. fraudulent conveyance comes down to intent which involves

classic questions of witness credibilitye. Supreme Court holds that although it might be less

efficient/effective, that does not mean that it is possible tocircumvent the 7th Amendment right to trial by jury

f. Bottom line:1. if case is brought before an administrative agency, created by

Congress, theres no need for jury

2. if court of any kind is involved, then the jury trial should beavailable.a. this is not true when the case concerns the interests of he

government in its capacity as sovereignb. thats why there was a right to trial by jury in

Granfinanciera but not Atlas -the former was more of aprivate disupte and the latter was more public (govt assovereign)

2. changes in procedurea. what if you have overlapping issues from merger of law and equity?

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b. Beacon Theatres v. Westover (westover = lower court judge) p. 6671. Facts

a. Fox wants injunction to keep Beacon from bringing anti-trustclaim

b. Fox also asks for declaratory judgment ( a binding decisionwithout coercive or punitive effects all it says is Im not liable)that grant of clearance is reasonable (fact that hes the only oneshowing movies is OK)

c. Beacon counterclaims against Fox for treble damanges and statesanti-trust and demands jury trial

d. DC says complaint for declaratory is equitable so no jurye. CA refuses to upset DCf. SC says DCs finding that they presented basically equitable issues

doesnt have any support under Rule 57. Holds that right to a trialby jury must be determined issue by issue (not case by case) andwhere there are both legal and equitable claims, trial judges mustordinarily hear the legal claims first (jury before judge).1. preserves parties rt to jury trial2. only in cases where the party asserting equitable claims would

be irreparably harmed by a delay in these claims until after the

hearing of a legal claim, could the court hear the equitableclaim first

g. (This case is against the judge b/c its basically a suit to get him togive them a jury trial)

h. writ of mandamus case2. rule = where cases mixes equity and law, try jury issues first and that

will bind judge3. you dont lose anything by merging claims4. hard b/c injunctive relief is sought and that is traditionally equity5. Declaratory judgment is neither legal nor equitable (if it were, people

would use it to destroy/create peoples right to a jury trial). Instead,underlying issues control whether there is a right to a jury trial in adeclaratory judgment suit.

6. If Constitution provides for jury trial, right cant be taken away but can be added to7. No comparable right for judge trial8. Chauffers, Teamsters and Helpers v. Terry p. 652

a. Truckers sue union, alleging violating of duty of fair representation and violation ofcollective bargaining agreement (didnt process 3rd grievance)

b. No historical match for collective bargaining in 1791c. Violation of duty of fair representation resembles breach of fiduciary duty (b/c the

union was fulfilling a representative role and the employees didnt have directcontrol over what the union did on its behalf) which was equitable in 18th centuryEngland.

d. BUT this doesnt end inquiry. The court breaks the claim into parts:1. violating of collective action bargain (comparable to breach of contract legal

issue) (CL)

2. breach of duty of representation (equitable)3. AND: remedy = back pay (compensation clearly common law)

e. remedy is more important than claim b/c less likely to be stretching (remedy hasntchanged much since 1791)

f. claim determination uses more court resourcesg. Brennan concurrence says why bother looking at claimh. Stevens wants to go in more functional directions what kind of cases do juries do

well?F. Jury Composition

1. Jury can be as small as 6 no more than 12 in federal system (FRCP 48)

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2. Needs to be unanimous in Federal system -- FRCP 483. Voir dire is the first opportunity for lawyers to begin teaching jury about the case

G. Jury Selection1. Who is on juries?

a. fair cross-section of community (28 USC 1861)1. you dont just use voter registration lists

b. whats appropriate range of diversity1. you can omit some groups convicted felons2. look for differences in perspective

a. race and gender is problemc. right to be in jury pool, not to be on jury. all citizens should have opportunity to be

considered for service and shall have obligation to serve as jurors when summoned(28 USC 1861).1. not excluded from jury pool on basis of race, etc 28 USC 1862

2. How juries are selected FRCP 47a. 28 USC 1863 each U.S. district court shall devise and place into operation a

written plan for random jury selection1. people can challenge compliance with selection procedures 28 USC 1867

b. voir dire (qsts.) combo of judge/lawyer. Judges participate much more in federalsystem

c. exclusions1. for cause when a juror is dismissed due to bias, interest, or prejudice.

lawyers requests. Always judges decision. Great deal of discretion. Usedsparingly (FRCP 47(c))

2. peremptory (28 USC 1870) in civil case each side allowed 3 so each sidedoesnt get a lot of say regarding what juries look like.a. why have?

1. exclude extremes2. goal = fair jury3. verdict = easier to swallow b/c parties may feel like theyre choosing

jury4. may have alienated a juror during questioning5. intuition for hard to justify

b. why not?1. these exclusions play into litigation being game of manipulation2. discriminatory and may conflict with idea of cross-sectional jury

c. Batson v.Kentucky p. 6811. used to be able to use peremptories without justification but now b/c

Equal Protection Clause2. party bringing claim of exclusion must show prima facie evidence. D.

has burden of showing race-neutral justification.3. Batson is for criminal cases4. Batson violated right of D. (black) and juror5. Powers v. Ohio p. 682

a. violated right of D. (white) and jurorb. criminal D, regardless of his race, may object to a prosecutors

race-based exclusion of jurorsd. Edmonson v. Leesville Concrete Co. p. 681 (truck rolling backwards on P)

1. Issue: did Ps use of peremptory challenges violate jurorsConstitutional right to equal protection?a. Supreme Court uses 5th Amendment (implied equal protectionclause) in their argument. Due Process right (on a federal level) isinterpreted by SC to be anti-discriminatory right.

2. civil, not crim, case so P. is no longer prosecutor, a state actor3. private parties acting on behalf of government selecting jury (in

previous two prosecutor was state action)

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4. SC finds jury selection is a state action b/c:a. calling in of jury = state functionb. use of peremptory challenge: jury selection is a government

process, a piece of which is delegated to the parties at trial to beused in the construct of a govt. proceeding

c. its in our building5. SC holds that race-based peremptory challenges violate the equal

protection rights of the dismissed jurors6. Here its D. offering right, not P.

a. Scalia said can be used against minority defendants7. Litigants cant use peremptories to get a more diverse jury8. Third party standing and government action can Edmonson sue on

behalf of jurors claiming to be protecting their const rights?a. basic rule is that parties can assert violations of their own rights.

Here, SC gives the three factors to consider in deciding whether alitigant may raise a claim on behalf of third parties:1. Concrete injury to litigant

a. D has suffered an injury that gives him an interest inpursuing the claim of the violation of the jurors rights tothe fullest extent possible

2. Close relation to partya. hardest to show: shared interest between litigant and

juror3. Inability of third party to assert their rights themselves

a. jurors are not likely to bring their own separate claimeven if their rights were violated

9. Bottom line of Edmunsona. must show prima facie case of race-based exclusionsb. the burden is on the dismissing party to give a racially-neutral

justification for dismissalc. the courts are to look at pattern of race-based exclusions

1. However, its hard to show or infer a pattern when there areonly 3 peremptories, as there are in civil cases

10. Dissent disagree with state action pointsa. every time a challenge is made, mini-trial will ensue on whether

the peremptory was race-basedb. good lawyers will be able to come up with better pretexts to avoid

objections that peremptories are being made on race-based grounds1. this would favor wealthier clients who can afford better

lawyers2. however, this objection could be made about almost any rule

11. JEB p. 686 extended this principle to gender (paternity action)a. For example, if youre looking for a group of shoppers on a jury,

its OK to ask questions about shopping and up with an all femalejury

b. Its not OK if you exclude all men on the basis that its common

knowledge that all women shop.

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VIII. TrialA. Ways Judges Control Juries

1. voir dire process2. control of evidence3. instructions to jury Rule 51 no party may assign as error giving of instructions unless

party objects before jury retires to consider verdict4. special verdicts Rule 49(a) restricts power of jury by requiring a special written

finding on each issue of fact, rather than issuing a general verdict5. General verdict with Interrogatories Rule 49(b) judge may require a general verdict

to be supported by interrogatories as to specific findings of fact6. judges ability to comment on evidence7. limited instructions of issues

B. Controlling Pre-verdict1. judgment as a matter of law (directed verdict)

a. stops the case from going to the jury and determines the outcome as a matter of lawb. when a party has been fully heard on an issue and there is no legally sufficient basis

for a reasonable jury to find for the party on that issue, the court may determine theissue against that party and may grant a motion for JAML against the party withrespect to a claim or defense that cant be maintained under law without a favorablefinding on the issue above. FRCP 50

c. what could a rational jury use? (JML and SJ both use this)d. this is only in jury

CivPro Outline Example 4

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