Civil Procedure Outline (Short), Sachs Fall 2011 Goal of FRCP: just, speedy, inexpensive determination of every action To get into fed court need SMJ + PJ + venue To determine if PJ or venue proper, first figure out if consented w/ forum selection clause or waived objection 12(h) SUBJECT MATTER JURISDICTION – Ability of court to hear particular type of case. Cannot be waived. Constitution (Article III) + Statute (§1331, 1332). Fed courts have limited SMJ. Note states have very, very broad SMJ. 1. Diversity Jurisdiction: The power of federal courts to adjudicate disputes between citizens of different states if more than $75,000 at stake. a. Citizen of a different state (Article III). Need complete diversity: all Ps from different states as all Ds [Strawbridge] b. Amount-­‐in-­‐controversy statutory requirement exceeds $75,000 exclusive of interest or costs (§1332). Legal certainty; reasonable to conclude that P’s injuries would support recovery of that amount [Difenthal, flight attendant treated passengers “brusquely”, no legal certainty that facts supported damage claim of $10k] • P can aggregate claims against single D • P cannot aggregate claims against multiple Ds • Co-­‐Ps cannot aggregate claims. • Exceptions: supplemental jurisdiction & common undivided interest, joint claim that is “indivisible” How to define citizenship? *calculate as of date action initiated a. Individual – domicile (only 1) = present + intent to remain indefinitely b. Partnership – citizen of state where all partners domiciled c. Corporations – state of incorporation + principal place of business, where high level officers direct, control and coordinate corporation’s activities, nerve center [f Corp., Breyer, usually the headquarters unless it is a mail drop box or bare office; must be single location, test not perfect and can create anomalous results] d. Alien = domicile 2. Federal Question Jurisdiction §1331, the power of federal courts to adjudicate disputes arising under the Constitution, laws or treaties of the US Constitution defines outer bounds of jurisdiction Congress may confer upon courts. §1331 interpreted more narrowly in that requires at least an essential federal ingredient [Merrell Dow, Grable]. a. Cause of action under which P sues is created by federal law i. Mottley (1908) – P’s original claim must arise under a federal law. P enforcing federal right. Court doesn’t have jurisdiction just because federal claim-­‐related defense is anticipated. Only look to P’s original complaint (no counterclaims) [P’s claim under state contract law not federal law; RR would need to bring federal law as part of defense] 1. Well-­‐pleaded complaint rule – fed claim must appear on the face of the complaint 2. Holmes’s creation test – Suit “arises under the law that creates the cause of action.” Can claim proceed without reference to federal law? If yes, then doesn’t belong in fed ct. *works for most cases 3. Rationale: easy to determine jurisdiction from onset b. Cause of action includes essential federal ingredient i. Grable (2005) – Claim that doesn’t follow creation test can be tried in fed ct. if there is (1) essential federal element embedded in otherwise nonfederal claim (2) federal ingredient must actually be disputed (3) federal ingredient must be substantial (4) court should consider careful balance b/t state and fed courts 1
1.
2.
3.
4.
3.
Serious federal interest in adjudicating claim Potential for disrupting balance b/t state and fed cts. (federalism) Impact on fed dockets *Goes beyond Holmes but faithful to Mottley (looks to what P must prove) [resolution involves implication of notice statute in fed. tax law]. Removal – §1441 if P brings case in state court, D can remove case to fed ct. so long as fed ct. has “original jurisdiction” (this means SMJ must have existed). Fairness to D. a. Federal claims – regular FQ analysis b. Non-­‐federal claims (state claims) – need supplemental jurisdiction (same case/controversy w/ common nucleus of operative fact, §1367(b) exceptions • File notice of removal w/ clerk w/in 30 days of service or 30 days after becomes removable (amended pleadings), §1446 • Must move to fed district ct. “for district where action pending” *Venue §1391 does not apply to removed cases • All original Ds must join in notice of removal • Exception: §1441(b) Forum defendant exception: bars removal of diversity case if D resides in state where suit brought. D doesn’t need to be protected b/c at home. Does NOT bar removal of fed Q case • §1441(c) motion to remand must be w/in 30 days of else waive objections (other than SMJ) PERSONAL JURISDICTION – Ability of court to exercise authority over D (require D to appear before it and to render judgment that will be binding on D). Can be waived. Constitution (DP, notice and opportunity to be heard and FF&C, full faith and credit will be given in each state) + State statute (long-­‐arm statute) + 4(k) (notice of lawsuit) *This answer assumes the state long-­‐arm statute extends to the limits of DP with regard to the claim(s) at issue. Also assume contacts mentioned are D’s only contacts w/in forum state. 1. Basis for Personal Jurisdiction – cannot sue people wherever you feel like it; need DP a. Domicile b. Presence, service of process while physically and voluntarily present in forum state [Burnham (Scalia) transient presence, father visiting kids in CA when served, 4-­‐4 split, Brennan: need to do Shoe] Note this is only for individuals, service ok but cannot obtain PJ by serving officer of corporation (but not partnership) who happens to be in forum state c. Consent: express (contract) or implied (Hess, PA citizen injured MA citizen in MA; voluntary act of driving in MA implied consent] d. Waiver: failure to waive w/in specified time 12(h) e. Minimum contacts: D must have sufficient contacts in state such that D has purposefully availed himself of privilege of conducting activities in state and thus should reasonably anticipate “being haled into court.” Further, exercising PJ over D does not offend traditional notions of fair play and justice [Shoe, no offices or contracts or sale in WA but shoe salesmen were continuous and systematic contacts, received benefits/protections of WA laws] • D’Arcy (1851) – Need service of process in forum state or voluntary appearance in forum state. • Pennoyer (1878) – Need service of process in forum state or voluntary appearance or property in state and property attached before litigation begins (quasi in rem). DP req. actual notice. • International Shoe (1945) – Need minimum contacts. D submits to litigation in forum state if claim arises out of voluntary activities in forum state. This is fair to D and ok under DP [no offices or contracts or sale in WA but shoe salesmen were continuous and systematic contacts, received benefits/protections of WA laws] 2
Did claim arise out of D’s contacts with forum state? YES – specific jurisdiction (fewer contacts req.) NO – general jurisdiction (many contacts req.) 2. General Personal Jurisdiction: If D has continuous or systematic contracts with forum state such that the continuity of purposeful contacts w/in forum state is sufficiently great, can have PJ even if claim does not arise out of those contacts. Not unfair or inconvenient to D. Use for any claim P has against D. What continuous and systematic contacts suffice? a. Individual = domicile b. Corporation = (1) place of incorporation (2) principle place of business (3) corporate office w/ significant business or continued physical presence [Reyes, Hong Kong company w/ office in CA that conduced significant business] (4) essentially at home, rely on “carved out” test ex. Starbucks in NY, do everything in state as they would do if were own business, buying/selling in state not enough, need physical presence [Goodyear (2011), Ginsburg, no PJ b/c Goodyear not at home in NC, attenuated connections to state, no offices, do not ship products or solicit sales] i. Registered to do business in state? ii. Physical presence in state? iii. Any advertising in state iv. Solicit business in state? v. Any employees in state? vi. Volume of in-­‐state business, relation to whole? vii. If “carve out” forum market, does it look like a local business? • Not necessarily regular contacts [Robbins, 50 transactions w/ MD not enough] • Temporary principle place of business ok [Perkins, Philippine mining company temporarily conducting business in Ohio] • Not necessarily purchases in forum occurring at regular intervals [Goodyear, no offices, does not ship products or solicit sales in NC; P should have argued single enterprise theory] 3. Specific Personal Jurisdiction: D has min contacts with state (can be single act b/c of “quality and nature” [McGee]. Claim must arise out of D’s min contacts. Exercise of jurisdiction must be otherwise consistent w/ traditional notions of fair play and substantial justice. Use for only claims arising out of D’s in-­‐state contacts. Step 1: Minimum contacts with forum state. Contact exists when D has purposefully availed himself of privilege and benefits of conducting activities in forum state. 1. Purposeful availment – did D purposefully avail itself of benefits and protection of forum’s laws? [Hanson] D purposefully avails self of opportunity to conduct activities in forum state and could “reasonably anticipate being haled into court there.” Lawsuit cannot be a surprise. Distinguish foreseeability w/ purposeful availment. [Nicastro, Kennedy; if foreseeability sole criterion, then small farmer in FL who sells crops to large distributor could be subject to PJ in Alaska] a. Worldwide Volkswagen, must be foreseeable that D could get sued in forum, not that product could get there [could foresee buyers taking cars to OK (product) but no PJ b/c had not purposefully availed of conducting activities in OK, solicit no business, sell no cars there] b. McGee, PJ over D whose contacts w/ state consist of only single act (insurance contract), provided act is what gave rise to claim for which jurisdiction being sought, and was deliberately directed toward state [insurance company (1) solicited business and (2) CA had interest] c. Burger King, reaffirms 2 prongs of Shoe (1) contacts: MI citizen opened BK franchise in MI, had purposeful contact with BK headquarters in FL, (2) fairness: burden on D to show forum so gravely inconvenient, PJ in FL ok 3
d.
2.
3.
Calder, if D acts outside state that knows will cause harmful effects w/in state, subject to min contacts w/in state [FL publication published story about CA entertainer, knew she lived in CA, knew would cause harmful effects in state, PJ] Initiate – Did D initiate contact w/ forum state Stream of commerce – if D puts products in stream of commerce, is he purposefully availing himself to whichever state products end up? Asahi does not resolve this (4-­‐4 split) a. Brennan: good enough, D benefits from sales in other states regardless of how products get there, reasonable anticipation REJECTED b. O’Conner: not enough, also D must also clearly seek market there (intent to serve state) 4.
Stream of commerce+ Target state (advertising, marketing, serving business in forum state) [Nicastro (2011), machinist’s fingers severed, no PJ over foreign D although product in “stream of commerce” b/c D did not purposefully avail himself of NJ / did not directly target NJ] (4-­‐2-­‐3 split) • Kennedy: Stream of commerce + target specific state. No PJ b/c need conduct purposefully directed (emphasis) at (targeted) at forum state (not natl market). Not enough might have foreseen goods might reach forum. D did not target NJ, no offices there, no direct sales there, no ads. *notes there may be exceptions for intentional torts • Breyer: Stream of commerce + isolated sale + something more or regular flow of merchandise. No PJ b/c had isolated sale but not something more i.e. no intention, explicit desire to sell in NJ (advertising, state-­‐related design, advice). No regular flow of merchandise (only 4 machines). Suggests that size of company might make a difference [Appalachian potter v. large corporate D] • Ginsburg: Contact made/sold. Yes PJ b/c D targeted / purposefully availed themselves of US natl market (attendance at conventions, derived substantial revenue). Fairness and justice req. large companies to defend at place where products cause injury. DP, not state sovereignty, at issue in determining PJ. Natl contacts are increasingly common, PJ ok. 5. If internet involved: a. Zippo test – translate virtual contacts into contracts framework, sliding scale (dated) (1) Passive, merely allow to post information (no PJ) (2) some interactivity (no PJ) (3) active, interactive elements that allow owners to “engage… with forum residents over the internet” i.e. advertising (yes PJ) BUY/SELL i. Provides little guidance, no limit to jurisdiction (active websites subject to PJ everywhere) b. Calder effects test – intentional targeting of wrongful conduct toward forum resident supports PJ [PJ over FL publisher for publishing defamation article expressly aimed at celebrity in CA, knew “brunt of the injury would be felt” by P in CA] i. (1) where is server based? (2) who is it marketed towards? (3) where does it draw its sources? (4) ties to forum state D argue – PJ min contacts analysis qualitative, not quantitative, and “quality” of these sporadic (too isolated or casual) contacts will probably be too low to establish PJ Step 2: Claim arises out of these contacts Step 3: Fair and reasonable, does not offend “traditional notions of fair play and substantial justice.” Consider (1) burden/inconvenience on D (2) forum state’s interest (3) P’s interest in obtaining relief (4) efficient resolution of controversies (witnesses, evidence etc.) (5) shared interest in substantive policy (fundamental social policies ex. interest in family harmony). [Burger King] a. McGee (1957), increased transportation/communication has reduced inconvenience of D defending action in another state] b. Note when min contacts in forum state, hard to prove unreasonable to subject D to PJ in forum state. D needs to make “compelling case” that other considerations make exercise of PJ unreasonable. 4
2.
3.
Challenging PJ a. Direct attack: challenges to PJ in ct. where lawsuit filed i. Special appearance – D appears in court where original action brought w/ purpose of questioning PJ. D waives objection if raises any issues other than PJ. ii. 12(b)(2) – D may appear before answering merits of complaint and object to PJ; may raise other issues w/o waiving objection to PJ (more liberal) 1. Either approach: objection must be made immediately or else lost b. Collateral attack: challenges to PJ in enforcing court (risky, only makes sense when D has no defense) i. D fails to appear in court where P filed initial suit; default judgment against D. P take judgment state where D lives or has assets and asks court to enforce judgment under Full Faith & Credit clause; “judgment on the judgment.” D appears in enforcing court and contents that original court’s judgment was invalid for lack of PJ and should not be enforced. In Rem and Quasi in Rem Jurisdiction – jurisdiction over property w/in state if property seized through attachment a. In rem – over property, as against all possible claimants known and unknown. PJ over property, not necessarily all claimants ex. clear title to real property, probate proceeding to settle estate b. Quasi in rem (type I) – about who owns property ex. disputes over property title c. Quasi in rem (type II) – know who owns it, about some other claim. Purpose not to resolve conflicting claims over property. Need attachment (property as hostage) i. Pennoyer (1878) – court has authority to exercise in rem / quasi in rem jurisdiction if asset at issue is w/in state and asset attached at outset of case ii. Harris (1905) – quasi in rem attachment of intangible asset, expansion beyond traditional roots which involved physical control of asset [X owed Y who owed Z, attachment of X’s debt to Z appropriate through service in MD] iii. Shaffer (1977) – quasi in rem of property merely “elliptical way” of asserting PJ over Ds. Seizing property at outset not enough [Pennoyer], need min contacts under Shoe [derivative suit w/ attachment of DE common stock; corporate officers had no contacts, ties or relations to DE; dissent: officers voluntarily associated themselves w/ DE and purposefully availed of benefits of DE law] 4.
Service of Process – Establishes PJ over D and notifies D of case gives opportunity for D to appear and defend, Rule 4. Can be waived. *Need service of process for PJ but can service without PJ. Analyze separately!! a.
b.
c.
Need “notice reasonably calculated under the circumstances” [Mullane] Need to serve all Ds Must take reasonable steps in attempt to provide notice, if practicable to do so. If aware D did no get service, may need to try other steps. [Flowers, house taken, maybe constructive service but no actual notice] • Summons and complaint • W/in 120 days after complaint filed • By non-­‐party, 18+ d.
4(e) Serving individual – (1) state law (2) personal service (3) leave at house w/ person of suitable age and discretion who also lives there (4) authorized agent. Exceptions: minor/incompetent person, state law only. 4(h) Serving corporation, partnership – (1) state law (2) personal service to officer, managing or general agent, or other authorized agent Waiver of service – less expensive, gives D 60 days to respond. If D does not return waiver then must pay all costs of formal service, including attorneys’ fees e.
f.
5
VENUE – §1391, geographic limitation that ensures court is convenient and has connection to one or more of the litigants. Not constitutionally constructed. Purpose is preventing case from proceeding in ct. that has nothing to do w/ case but might have SMJ and/or PJ, judicial efficiency, limit forum-­‐shopping. Can be waived. Can also consent before case filed (forum selection clause). *Several venues might be proper. 1. 1391(a) – Jurisdiction based on diversity alone, case may brought in judicial district where: a. Any D resides, if all Ds reside in same state (residence ≠ domicile) b. Substantial part of events/omissions giving rise to claim occurred, or substantial part of property that is subject to action is situated, or c. Fallback provision – if no proper venue (only), where any D subject to PJ at time action commenced 2. 1391(b) – Jurisdiction NOT based on diversity alone, case may be brought in judicial district where: a. Any D resides, if all Ds reside in same state ex. both Ds live in TX; N.D. TX and E.D. TX. then can sue both in N.D. or E.D. b. Substantial part of events/omissions giving rise to claim occurred, or substantial part of property that is subject to action is situated, or c. Fallback provision – if no proper venue (only), where any D may be found 3. 1391(c) definition of resident a. Individual = domicile b. Partnership = same as corporations c. Corporations = any judicial district where subject to PJ were that district a separate state d. Alien = any state Substantial part • Narrow = “a point of dispute b/t parties” • Broad = any event that was part of sequence of events that gave rise to case [Uffner, 1st Cir., yacht sank off cost of PR, contract signed in GA, venue ok in PR b/c boat sinking was part of sequence] 4. Challenges to venue Determine whether venue proper. If YES, then §1404. If NO, then §1406. Courts can transfer/dismiss without SMJ/PJ. Case filed in the wrong venue Case filed in the correct venue Motions to transfer §1406 §1404 Motions to dismiss §1406 and 12(b)(3) Forum non conveniens (common law) *Choice of law: law of transferring state applies unless venue improper, in which case receiving court applies own laws c. §1406 transfer/dismissal: If wrongly filed, can dismiss 12(b)(3) or transfer in interest of justice to any other district where case could have been commenced or initiated (need SMJ/PJ and venue without waiver!!) d. §1404 transfer: If correctly filed, for convenience and in interest of justice, can transfer to any other district where case could have been commenced or initiated. Balance private and public interest factors. Typically honor P’s choice of forum unless other factors clearly favor transfer. [MacMunn, case transferred to MA b/c majority of witnesses, medical records and MA interest favored MA] 6
e.
Forum non conveniens: If correctly filed, can dismiss for inconvenience but only when alternative forum exists and D waives SOL defense. Permissible even when law of foreign forum would likely give P less desirable remedy than P could get in fed ct. [Piper Aircraft, crash in Scotland but decedents sued in US b/c law more favorable, dismissed]. More reluctant to grant than §1404 transfer b/c hard on Ps (SOL). Balance private and public interest factors. Private interest factors: (1) D’s choice of forum (2) P’s choice of forum *typically given substantial weight (3) whether claim arose elsewhere (4) convenience of parties (5) convenience of witnesses (6) ease of access to sources of proof Public interest factors: (1) transferee’s familiarity w/ governing laws (2) relative congestion of courts (3) local interest in deciding local controversies at home PLEADING 1. Complaint *each new complaint starts cycle anew – if amendment allowed, opposing party has same right to respond to amended pleading as original pleading (14 days) a. 8(a) includes jurisdictional statement (refers to SMJ), relief sought, short and plain statement of claim b. 8(b) can state alternate/inconsistent/contradictory claims c. 9(b) heightened pleading for fraud/mistake, state w/ particularity d. 11 – reasonable inquiry under the circumstances; all papers signed by attorney; sanctions for frivolous arguments, harassment, or lack of factual investigation 2.
Pleading standard Liberal pleading approach (adopted as part of shift from code pleading/common law pleading to notice pleading, consistent with liberal threshold in determining 12(b)(6)) a. Purpose – to set forth claim and give fair notice b. Form 11 – On date at place, D negligently drove motor vehicle against P. P injured. c. Conley (1957) – cannot dismiss unless appears beyond doubt that P could prove no set of facts in support of claim which would entitle him to relief d. Smith (2005) – application of Conley, P does not need to allege facts corresponding to each element; court can infer from facts that elements are satisfied, even if not explicit in complaint e. Leatherman (1993) – rejected heightened pleading standards that are not explicitly required by FRCP [heightened pleading not req. for civil rights cases alleging municipal liability under fed statute, suggests discovery/MSJ should be used to weed out unmeritorious claims] Twombly/Iqbal – shift to fact pleading; to survive 12(b)(6) must cross line from conceivable to plausible f. Twombly (2007) – rejects Conley, req. fact pleading; need factual allegations that plausibly (not conceivably) state claim for relief, no legal conclusions, “requires more than labels and conclusions, and a formalistic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all allegations in the complaint are true” [class action alleging baby bell’s parallel conduct inferred agreement violating Sherman Act, could be consistent with common business strategies, complaint dismissed] i. Note similarity to 11(b)(3) req. facts have evidentiary support or will after discovery ≠ 8(b) ii. Confusion re: Rule 8, Leatherman heightened pleading g. Iqbal (2009) – applies Twombly to all civil actions [Muslim detained/beaten in prison; alleges detention policies were racial discrimination; pleaded conclusions that Ashcroft and Mueller knew and willfully/maliciously condoned policy, facts did not “plausibly” lead to this conclusion; dismissed] h. Pros: helps control cost of discovery, return to practical 7
i.
j.
3.
4.
Cons: difficult to make non-­‐conclusory plausible allegations before discovery, relies on judicial expertise, judgment close to deciding facts that jury would decide Takeaways: • Subtract out conclusory (conclusions of law, court will ignore) *innovation • Assume well-­‐pleaded facts (non-­‐conclusory) as true • Draw all plausible (reasonable) inferences for P *ct will use own experience/common sense to determine plausibility, allows great discretion • Once draw reasonable inferences, are all elements either (a) pleaded or (b) inferred? Answer – allows parties to focus on what is actually in dispute a. 21 days after complaint or 14 days after pre-­‐answer motion denied b. Assert unwaived defenses c. Admit/deny/lack knowledge or info sufficient to form a belief (failure to deny = admission) d. Raise affirmative defenses 8(c); same pleading req. as complaint; do not waive if not raised in timely manner b/c can typically amend to include more ADs as long as no unfair surprise [Ingraham] e. Assert counter/crossclaim Pre-­‐Answer Motions 12 a. MTD 12(b); (1) lack of SMJ (2) lack of PJ (3) improper venue (4) insufficient process (5) insufficient service of process (6) failure to state a claim upon which relief can be granted (7) failure to join party under 19 i. 12(b)6) tests legal validity of P’s allegations (not factual disputes); rely on complaint, answer, and reply (if any); take well-­‐pleaded facts as true 1. Failure to plead enough facts to meet Twombly/Iqbal 2. Even if all facts are true, no law permitting recovery 3. P pleads herself out of court (fatal fact, establishes affirmative defense) b. Motion for judgment on pleadings 12(c) *same standard as 12(b)(6) i. (1) D has AD in answer that is un-­‐rebuttable (2) D’s only AD destroyed by some element of the pleading c. 12(d) – 12(b)(6) or 12(c) + evidence outside pleadings = MSJ, apply standard no genuine issue of material fact d. Motion for more definite statement 12(e) – so vague or ambiguous, D must request defects complained of and details desired [Matos, need not be literary gem] e. Motion to strike 12(f) – insufficient defense or any redundant, immaterial, impertinent, or scandalous matter; needs to prejudice D i. P’s version of 12(6)(b); P has same opportunity to challenge legal sufficiency of D’s answer/affirmative defenses [Reis Robatics] f. Omnibus motion rule 12(g) – if party files pre-­‐answer motion, cannot make another 12 motion based on defenses or objections that were available when filed pre-­‐answer motion g. Waiver trap 12(h) – if do not object to 12(b)(2)-­‐(5) defenses, then waive i. *Must consolidate all 12(b)(2)-­‐(5) defenses into one motion or if no motion, answer (lack of PJ, improper venue, insufficient process, insufficient service of process) ii. *Can assert other 3 defenses later in litig. (until trial for 6, 7) iii. If any 4 defenses omitted, they are waived 12(b) motion to dismiss Answer 12(c) motion for judgment on pleadings Trial Can raise 1-­‐7 Can raise 1, 6, 7 and 2-­‐5 [unless waived from earlier motion] nd
Can raise 1, 6, 7 and 2-­‐5 [2 time only] nd
1, 6, 7 and 2-­‐5 [2 time only] 8
5.
Amending Pleadings 15 a. Amendments before trial 15(a) i. Amendments as matter of right 15(a)(1) 1. May amend original pleadings only once w/o leave of court w/in 21 days after service or 2. If original pleading one to which responsive pleading (answer) required, party may amend original pleading w/in 21 days after service of responsive pleading or within 21 days after MTD, motion for more definite statement, motion to strike, whichever earlier ii. Amendments by leave of court 15(a)(2) – discretionary, “freely give leave when justice so requires”; factors: 1. (1) bad faith (2) reasons for amending (3) undue delay (4) number of prior amendments (5) futility of amendment (6) preparation prejudice to other party [Beeck, counterfeit waterslide, D filed for leave to amend complaint, court granted for factors] 2. Types of prejudice: (1) preparation (2) merits (3) futility 3. Rationale: narrow issues for discovery, discovery hasn’t happened yet so this doesn’t waste $ b. Amendments during/after trial 15(b) – discretionary, factors (1) stage of litigation (2) reason for amending (3) visibility of amended claim/defense (4) reason for not included in original pleading c. Amendments after SOL run 15(c) – if claim in amendment after relevant SOL has run, amendment time-­‐
barred unless claim in amendment relates back to date of original complaint i. Amendment to claims, relate back = new claim arises out of same conduct, transaction or occurrence set out in original pleading. Original complaint needs to give D notice of claims now being asserted [Moore, P wanted to amend complaint w/ new claim of negligence; denied b/c no references in original complaint focused on acts before surgery and new claim focuses on acts during/after surgery] ii. Amendment to parties, claim arises out of same conduct/transaction/occurrence set out in original pleading, party received notice w/in 20 days or knew/should have known, usually for misnomers but circuit split on John Does 6.
Default Judgment 55, P fails to respond to pleading w/in time designated for response. P in default and subject to entry of default judgment. a. P moves for entry of default, clerk files entry of default. Default = failure to appear, plead w/in set of time. D admits to facts in complaint b. P moves for default judgment. Court still needs to determine whether jurisdiction, service properly made, facts in complaint state claim of action and that relief est. by evidentiary hearing, accounting or other investigation [Lacey, illegal downloads, default judgment b/c complaint stated claim of action and did not need evidentiary hearing for req. of min. statutory damages] c. Note, disfavored by court; discretionary; fear unfair to D JOINDER, policy rationale: judicial economy, efficiency *Assume court has SMJ over case and PJ over defendants, parties may join… Capacity to sue – action must be prosecuted by real party in interest (person harmed), 17 Analyze all new state claims under either: (1) diversity – complete diversity + $75k or (2) supplemental jurisdiction – same case/controversy (nucleus of operative fact) + exceptions + discretion 1. Joinder of Claims 18 – Bringing several legal claims against same party together, liberal approach for judicial economy, efficiency, settlement and issue preclusion. Needs to satisfy SMJ requirements (DJ or FQ, if no then supplemental jurisdiction?) 9
a.
2.
3.
4.
5.
18(a) Party asserting claim, counterclaim, crossclaim, or third-­‐party claim may join, as independent or alternative claims, as many claims as it has against opposing party b. 18(b) This is ok even if claims arise out of completely unrelated events (contingent claims) Joinder of Parties 20 – Bringing legal claims against several parties together a. 20(a)(1) for P and 20(a)(2) for D – P (or D) can sue together (not required to and can sue for different relief) if: i. Assert claims that arise out of same transaction/occurrence and ii. Claims involve any common questions of law or fact to all Ps (or Ds) b. 42(b) court may order separate trials to prevent delay/prejudice c. 21 – Misjoinder not grounds for dismissing but can sever claims or add/drop parties [Holbein, denied motion to sever b/c claims against Ds arose from same transactions/occurrences and involved same questions of law/fact, P injured by same general policy, important to weigh burden on D v. judicial economy] Counterclaims 13 – vs. opposing party; encourages efficient resolution of all issues related to same transaction/occurrence *invoke §1367 if claim won’t stand alone a. 13(a) compulsory counterclaims – arises out of same transaction/occurrence that is subject matter of opposing party’s claim and does not require adding another party over whom court cannot acquire jurisdiction and when action commenced compulsive counterclaim was not subject matter of another pending action i. Use it or lose it (waive); claim preclusion ii. Logical relationship test for determining same transaction/occurrence *narrower than t/o test 1. Are issue of fact/law raised in claim/counterclaim largely the same? 2. Would issue preclusion bar subsequent on party’s counterclaim, absent compulsive counterclaim rule? 3. Same evidence, witnesses to support/refute claim and counterclaim? 4. Logical relationship b/t claim and counterclaim? 5. *Focus on underlying events giving rise to litig. b. 13(b) permissive counterclaims – whatever party wants, everything else *need independent basis for jurisdiction (SMJ or DJ) c. If counter/crossclaim then other party MUST assert compulsory counterclaims *Can 13(a) crossclaim or implead (14) and then add additional claims 18(a). If additional claims are state claims, need supplemental jurisdiction i.e. additional claims need to be part of same case/controversy under Article III (Gibbs standard, same case/controversy, common nucleus of operative fact). Crossclaims 13 – vs. party on your side *invoke §1367 if claim won’t stand alone a. 13(g) may assert crossclaims against co-­‐party arising from same transaction/occurrence that is subject matter of original action or counterclaim or claim relates to any property that is subject matter of original action Impleader 14 – D can assert claim against non-­‐party who may be liable to D (contribution for some damages, indemnification for all damages) *invoke SJ if claim won’t stand alone a. Can implead non-­‐party who is/may be liable for all of part of the claim b. 14 days after answer, or else motion c. P cannot implead alternative target for P or seek damages that D may have suffered from underlying issue d. 4 factors: (1) timeliness of motion (2) potential for complication of issues at trial (3) probability of trial delay (4) whether P may be prejudiced by addition of parties [Erkins, Case sought to implead Fitzpatrick, ok b/c claim arose out of “all or part of claim” and satisfied 4 factors] 10
e.
f.
g.
h.
i.
Third party P = party asserting impleader claim; third party D = party brought in; third party complaint = impleader complaint Original P options: i. 14(a) may assert claims against third party D that arise out of same transaction/occurrence. Then third party D can respond w/ defenses, counterclaim or crossclaims Third party P options: i. Join other claims against third party D Third party D options: i. May/must assert counterclaims against third party P ii. May assert claims against original P arising out of same transaction/occurrence iii. May assert defenses to original P’s claim iv. May implead new parties v. Must assert defenses under Rule 12 Third parties need PJ and SMJ!! Third party doesn’t need proper venue *Impleader (14) claims are contingent on original claims against D. If original claim is wiped out then impleader claim gone too. 6. Required Joinder 19 *joint tortfeasors never required a. Step 1: Is absentee required (indispensible) party? i. Court cannot accord complete relief among existing parties w/ person’s absence, or ii. Absentee claims interest relating to subject of action w/ conditions that might: • Impair/impede person’s ability to protect that interest or • Create double obligations b. Step 2: Is joinder feasible? i. If feasible, must join ii. Infeasible if: 1. Absentee not subject to PJ where suit brought 2. Joinder of absentee will destroy complete diversity (negates SMJ) 3. Joinder of absentee makes venue improper (if absentee from different state than D) c. Step 3: If not feasible, decide whether to continue or dismiss, 12(b)(7)? Factors in 19(b): i. Risk of prejudice to absentee or other parties if case goes forward ii. Ways to lessen such prejudice by fashioning judgment iii. Whether judgment rendered in person’s absence will be adequate iv. Whether P will have adequate remedy if action is dismissed for nonjoiner (most weight, should not dismiss unless alternative forum) v. *Court can also limit scope of judgment in order to prevent dismissal but satisfy 4 factors [Torrington, MTD for failure to join, employer was required party, not feasible to join (would destroy DJ), should be dismissed b/c failed to satisfy 4 requirements] 7.
Intervention 24 – party “stranger to suit” but resolution of case likely has significant practical effect on non-­‐party [Ford Motor, railroad tracks critical to operation]. Broader than 20. Need PJ! *can intervene as P or D, can block settlement a. Timely motion to intervene, factors (1) stage of lawsuit (2) purpose of intervention (3) when you knew (4) prejudice to original parties b. 24(a) intervenors of right (court must let intervene) i. Fed statute or ii. Applicant has interest in transaction or property + disposition will impair his interest – no existing party can adequately represent interest c. 24(b) permissive intervenors (court may let intervene) i. Fed statute ii. Claim/defense that shares w/ main action a common question of law/fact (broad standard) iii. Only if participation will not unduly delay or prejudice adjudication of original parties’ rights 11
iv. *Ct can grant limited purpose intervention for limited purposes, ex. contesting scope of protective order and confidentiality agreements 8.
Interpleader 22, §1335 – protect persons in possession of property or money (stakeholders) the ownership of which may be claimed by more than one party; allows stakeholder to force adverse claimants to property to litigate ownership in single proceeding *usually insurance cases a. Action brought by stakeholder (P) naming contending claimants to property as Ds. Ds then file crossclaims against each other to figure out who gets property. b. Ds will then file crossclaims 13(g) c. Situation where stakeholder is facing double litigation and potentially paying twice. Explicitly authorizes injunctions against other actions [Pimentel, Merrill Lynch filed interpleader action under §1335 to figure out who entitled to Philippine assets; Republic and Commissioner could not be joined b/c sovereign immunity, court dismisses after weighing 4 factors] Issue Subject matter jurisdiction Diversity Amount Personal jurisdiction Venue How to invoke Federal interpleader statute (§1335) *more expansive Minimum diversity, determined by claimants (at least 2 claimants diverse) (§1335) $500+ in controversy (§1335) Nationwide service of process (nationwide PJ, don’t need min contacts) (§2361) Judicial district where one or more claimants resides (§1397) P posts a bond w/ court to cover value of controverted property Rule interpleader (22) (Traditional DJ) Complete diversity, stakeholder on one side and claimants on other (§1332) $75,000+ (§1332) Traditional PJ (need PJ over all claimants); service under 4 Judicial district where any claimant resides (if all from one state); district where property is, district where any other claimant found if no other basis for venue (§1391) P deposits controverted property w/ court 9.
Supplemental Jurisdiction §1367 – related state law claims in fed ct; needs to be within Article III and statutory authority (§1367) a. Gibbs (1966) – Article III grants jurisdiction over cases ≠ claims; fed ct can exercise jurisdiction over state claims when state/fed claims derive from same common nucleus of operative fact; need federal hook i. Should fed ct still hear? Factors: (1) judicial economy, convenience, fairness (2) novel, important state question (3) state issues predominate (4) federal claim drops out early (5) likelihood of jury confusion rd
b. Kroger – fed cts should not hear claims by Ps against 3 party Ds in diversity cases if inconsistent w/ Strawbridge, §1367(b) c. §1367(a) if district ct has original jurisdiction, then has supplemental jurisdiction over related claims that are part of same case or controversy under Article III (Gibbs standard, common nucleus of operative fact) d. 1367(b) narrows, in diversity cases only ct will not have supplemental jurisdiction in diversity actions where state-­‐based claims are made by original P against persons made parties under 14, 19, 20, 24; or state-­‐based claims by parties joined under 19, 24 where break complete diversity e. 1367(c) Gibbs discretionary factors, can decline if: i. Claim raises novel/complex issues of state law ii. Claim substantially predominates over other claims 12
iii. District court has dismissed all claims over which has original jurisdiction (and only state claim remains) iv. Other compelling reasons (exceptional circumstances) First, does court have original jurisdiction. Then, is there independent SMJ over second claim (DJ/FQ)? No, then: CLASS ACTIONS – One or more class members litigate actions on behalf of class of persons w/ similar interests. Reduces cost of litigation and makes lawsuit financially viable (not negative value suit). *Can have class of Ds. 1. Requirements, 23(a) a. Hansbury (1940) – DP concerns, class action binding on all members. Need (1) shared interest (2) adequate representation and (3) procedures [binding judgment in Burke deprived Ps of DP] b. Implicit requirements: 13
i. Sufficiency of class definition (ct doesn’t have to speculate) ii. Whether proposed reps satisfy definition c. Explicit requirements i. Numerosity – so numerous that joinder impracticable ii. Commonality – common questions of law/fact, does not req. all or even most questions in common iii. Typicality – claims/defenses of rep. parties are typical of claims/defenses of class iv. Adequacy of representative – rep. parties will adequately and fairly protect interests of class 2. Types of Class Actions 23(b) a. 23(b)(1) prejudice class action; cannot opt-­‐out and may provide individual notice; prosecuting separate actions would create risk of: i. Incompatible standards of conduct on D ii. Impair/impeding ability to protect interest of P, limited fund (has to really be limited) b. 23(b)(2) injunctive/declaratory relief, cannot opt-­‐out and may provide individual notice i. Injunctive relief primary relief sought (money damages incidental) ii. Cohesiveness, preexisting or continuing legal relationship or significant common traits ex. race/gender c. 23(b)(3) damages/catch-­‐all, can opt-­‐out initially and at settlement and must provide individual notice i. Common questions of law or fact and class action superior to other methods for fairly/efficiency adjudicating controversy ex. mass tort ii. Predominance: most or all common questions predominant ((stricter than 23(a)); (1) requires same proof (2) bound by mutual interest (3) resolution of common interests would significantly advance litigation (4) one or more common issues constitute significant parts of each class members’ individual case (5) common questions central to all members’ claims (6) same theory of liability asserted by or against all Ds iii. Superiority: class is superior method for resolving dispute (1) class members’ interest in individually controlling prosecution/defense of separate actions (2) extent and nature of any litig. concerning controversy already begun by or against class members (3) desirability of undesirability of concentrating litig. of claims in particular forum (4) likely difficulties of managing class action Class Definition Policy Objective Practical Application 26(b)(1), -­‐mass version of 19 Avoid inconsistent decisions or Limited fund cases, if suits prejudice class -­‐cannot opt-­‐out impair/impede interests of class brought individually first P action -­‐may provide individual notice members takes everything. Class action protects against this. 26(b)(2), -­‐no $ damages (or incidental) Protect rights where large Civil rights cases, ex. injunctive/decl -­‐cannot opt-­‐out numbers of persons are race/gender aratory relief -­‐may provide individual notice affected, need cohesiveness, preexisting or continuing legal relationship or significant common traits 26(b)(3), -­‐$ damages Judicial efficiency, allows relief Where nobody would sue damages, -­‐must present common questions where individual P could not individually (minimal catch/all of law or fact (predominance of economically pursue action damages) but makes common questions) (negative value suits), only sense as class. [Synfuel -­‐must be superior to other effective method of deterring Tech] available methods D’s behavior -­‐must provide individual notice (P bears cost) 14
-­‐can opt-­‐out initially and at settlement 3.
4.
Other Procedures a. Judgment binding on all class members! b. Need PJ and SMJ over class reps but not members (including class reps for sub-­‐classes) c. Cannot notice voluntary dismissal d. 23(c) certification; putative before certified (interlocutory appeal of this) e. Court plays more active role, discovery aimed at class reps. not absent members f. 23(e) settlement, high-­‐stakes and frequent!!: need (1) notice to all types of classes (2) fairness hearing (3) statement identifying other agreements. Allows class member objections. Court should only consider if “fair, reasonable and adequate.” i. (1) Strength of P’s case (2) risk, expense, complexity and likely duration of further litig. (3) risk of maintaining class action status throughout trial (4) amount offered in settlement (5) extent of discovery and stage of proceedings (6) experience of counsel (7) presence of govt participation (8) rx of class members to proposed settlement [Synfuel Tech., class action claiming charged default 5-­‐lb rate, coupon settlement not fair b/c payment structure disadvantages customers charged multiple times, assumes will want to do business again with D, changes in company practices will benefit future customer but not class members] g. 23(f) can appeal class cert order (interlocutory) w/in 14 days after entered h. 23(g) class counsel i. 23(h) attorneys’ fees CAFA 2005 a. Goal: get class actions into federal court unless there are paramount state interests; passed after decades of business lobbying b. Requirements: • Minimum diversity (any P from different state as any D) • $5 million amount-­‐in-­‐controversy (can aggregate claims) • Need at least 100 class members (mass action) • 1 D removal (ordinarily all Ds need to agree to remove) • No more forum D rule for removal (ordinarily NY D sued in NY cannot remove b/c no local prejudice) c. Exceptions: • Home state: if 2/3+ class members or “primary defendants” are citizens of forum state, then state court • Discretionary jurisdiction: fed courts can decline if 1/3+ but less than 2/3 members and “primary defendants” are citizens of forum state DISCOVERY – Gathering facts and evidence to help flesh out generally pleaded claims and defenses. Major driver of litigation costs. Party directed. Premised on idea that parties should not be subject to surprises at trial. 1. Scope of Discovery 26(b), broad presumptive access to info constrained (ideally) by common sense of counsel and discretionary limits imposed by judge when not negotiated by parties *broad a. Discoverable matter (everything) b. That is not privileged, exception: if privilege is controversy c. That is relevant to any party’s claims or defenses (pleadings central to scope of discovery, no bright-­‐line test for relevance) d. That is reasonably calculated to lead to discovery of admissible evidence if not itself admissible ex. remedial measures, hearsay 2. Process of Discovery 15
Court has power to manage discovery, but generally done by parties through: • Required initial disclosures, 26(b) • Duty to supplement, 26 • Doc production requests, 34 • Rules to enforce discovery orders, 37 P files motion to compel production (or sanctions) D has several options. Note there are no silent objections in discovery! 1. Properly requested? Does it comply w/ all rules, discovery order, any protective orders? 2. Within scope of discovery? 26(a) 3. Object on grounds of undue burden or expense • E-­‐discovery need not provide if undue burden or cost [McPeek, searching DOJ tapes] • 26(b)(2)(c) 3-­‐part test for objections: (1) unreasonably cumulative or duplicative (2) ample opportunity to obtain info by discovery (3) burden or expense > benefit 4.
5.
6.
3.
Counter w/ protective order 26(c) • Certification that movant has in good faith conferred or attempted to confer w/ other affected parties • Can protect from annoyance, embarrassment, oppression, or undue burden or expense Object based on privilege 26(b)(5) • Ex. attorney-­‐client privilege; communication made b/t persons in confidence for purpose of obtaining or providing legal assistance for the client; protects content of discussions not facts (i.e. identity of witnesses or existence of documents); note some states apply control group test • Need to expressly state claim and describe nature of documents, privilege log • Exception: if privilege is controversy Object based on work-­‐product doctrine [Hickman, protects compilation and selection of work product, attorneys’ added value, intangible things ex. interviews also protected but not in rule] *does not need to be generated by attorney • 26(b)(3) May not discover (1) documents and tangible things (2) prepared in anticipation of litigation or for trial (doesn’t include general business records, 3 approaches) (3) by or for another party or its representatives • Rebut by showing good cause i.e. substantial need for materials, cannot obtain equivalent of work produced by other means and inability to discover will create undue hardship (i.e. witness died, evidence gone) • Still must protect against disclosures of mental impressions, conclusions, opinions or legal theories of party’s attorney, also previous statements (absolute immunity, will be protected even if substantial need) • Note testifying experts (“hired guns”), req. disclosure of identify and expected testimony v. non-­‐testifying experts, protected from discovery, role is to help attorney understand difficult facts; unbiased expert? • Policy rationale: (1) efficiency, don’t want lawyer to fear discovery and writing things down before trial (2) accuracy, if lawyer can’t prepare for trial, outcomes suffer (3) entrepreneurial spirit, why pay attorney if can’t perform to best of ability? (4) don’t want other lawyers riding on coattails (5) don’t want lawyers ending up as witnesses for own cases Methods of Discovery 16
Filing  service  26(f) meet & confer  [14 days] 26(a)(1) required disclosures + 26(f) discovery plan  [7 days] 16(b) scheduling conference and order •
•
Scheduling order due: (1) 90 days after appearance of D or (2) 120 days after complaint served on D Scheduling order due: 21 days after 26(f) meet and confer a.
b.
Informal Investigation, 11 – make reasonable inquiry before filing complaint Meet and Confer, 26(f) – discuss discovery plan, time limits, case management schedule, claim/defenses, settlement c.
d.
e.
f.
Required Disclosures 26(a), cheap starting point + discovery plan 26(f) i. Initial disclosures, must provide with info that is reasonable available to party: • Name, address, telephone of all individuals likely to have discovery info, along w/ subject of info that disclosing party may use to support its claims or defenses • Copy (or description) of all documents that disclosing party has in its possession • Computation of each category of damages by disclosing party • Any insurance agreements ii. Don’t need to make prior to judgment or dispositive motions if “no useful purpose” in making disclosures [Flores, no reason to delay disclosure of insurance agreement] iii. Prior discovery disclosures must be supplemented if found to be materially incomplete/incorrect, or if additional/corrective info has been made iv. Expert testimony – need to disclose expert disclosures at least 90 days before trial v. Trial evidence – need to provide evidence of what will present at trial at least 30 days before trial vi. Why? (1) prevent surprise and (2) enable objections vii. 26(g) sign disclosures and discovery requests to ensure complete, correct, and not unduly burdensome Scheduling Conference and Order 16(b) judge present, someone to authorize stipulations or potential settlement, modify only for good cause w/ judge’s consent (managerial judging) Interrogatories, 33, cheap, identify/locate evidence i. Questions to other parties, limited to 25 Qs ii. Request in writing iii. If corporation, info available to the party iv. Answer under oath in 30 days / object in writing; can produce business records instead (advantage: shifts cost; disadvantage: P could find something else) v. Can object to pure questions of law; cannot object to info about party’s application of law to fact Depositions, 30 (oral, follow-­‐up, spontaneous or candid evidence from witnesses) & 31 (written, simple Qs that require no follow-­‐up, cheaper) *for party OR non-­‐party (subpoena) i. Oral or written questions under oath to any person or organization ii. Written notice to all parties, compel w/ subpoena for non-­‐party deponents (for PJ) 1. Service by non-­‐party 18+, delivery to person, w/in district of issuing court or outside district but w/in 100 miles or state statute or court authorization 2. Move to quash or modify subpoena, 45 • Required: (1) fails to allow reasonable time to comply (2) non-­‐party to travel 100+ miles (unless maybe still w/in state, then ok) (3) disclosure of privileged info (4) undue burden • Discretionary: (1) un-­‐retained opinion 17
Instead of quashing/modifying court may order if substantial need and ensures subpoenaed person will be reasonably compensated • If fail to comply can be held in contempt iii. If corporation, info known or reasonably available iv. Verbal answer / object on record but need to answer even if not admissible. Do not answer if privileged or protected, otherwise waive privilege v. Use to prepare for trial, impeach, use at trial under certain circumstances Document Production Request, 34(a)(1), collect identified written documents *can get from non-­‐party w/ subpoena duces tecum i. Documents and tangible things w/in party’s possession, custody, or control ii. Request in writing w/ reasonably particularity iii. Format = as requested or as usually kept iv. Permit / object in writing Request to Enter onto Land, 34(a)(2), inspect, measure, survey, photograph, test, or sample property Mental and Physical Examinations, 35, determine mental/physical conditions in controversy i. Mental physical condition in controversy ii. Need court order b/c of privacy; motion on good cause and notice to all parties iii. If examinee requests report and deposes examiner, then privilege is waived •
g.
h.
i.
j.
Requests for Admissions, 36, narrowing issues for trial, authenticating documents i. Request admission re: truth of matters relating to (1) facts, application of law to fact, or opinions about either, and (2) genuineness (authenticity) of any described documents ii. Request in writing iii. After reasonable inquiry need to answer fairly responding to substance of matter, can admit/deny/lack knowledge or object; failure to respond = admit iv. Conclusive!! (unlike interrogatories) 4.
Tools for Controlling Discovery a. 26(g) Sanctions (less common) i. Only triggered by motion ii. Related to attorney signing discovery docs. If making request, signing that not undue burden. If answering, warrant disclosures complete/correct and proportionate to case iii. Only mentioned sanction includes making violator pay opposing party’s reasonable expenses b. 37 Sanctions (more common) *need order compelling discovery, willful violation of that order & prejudice to other party, umbrella sanctions i. Triggered by motion or court sua sponte ii. Sanctions that are “just” in the circumstances iii. Include holding in contempt, orders deeming specific facts to be established for purposes of actions, precludes violator from introducing certain evidence, striking or dismissing certain claims or defenses, entering default judgment [Chadasama, discovery battle, D filed objections, 12(b)(6), protective order and withheld info] JURY TRIAL & ALTERNATIVES Dispositive 12(b)(6) motion? MTD 12(c) motion for directed verdict 56 MSJ 18
50(a) JMOL 50(a) JMOL after P’s case after P & D’s case 50(b) renewed JMOL What record? Law + well-­‐
pleaded allegations in complaint Who can file? Only D Law + well-­‐
pleaded facts in complaint, answer and reply (if any) P and D Law + undisputed facts from discovery Law + all facts from P’s case Law + full trial record Law + full trial record P and D Only D P and D P and D 1.
Voluntary Dismissal 41 a. P can notice dismissal, 41(a)(1), usually without prejudice unless second voluntary dismissal, then with prejudice and operates as adjudication on merits (claim precluded) i. Before opposing party serves answer or MSJ or ii. Stipulation by all parties iii. [In re Kitchen & Bath Fixtures Antitrust Litig., putative class noticed voluntary dismissal, Ds objected as untimely, court found timely b/c D had not filed answer or MTD and MTD ≠ MSJ under 12(d)] b. P can move for voluntary dismissal, 41(a)(2), without prejudice i. Court decides w/ discretion ii. Aims to avoid plain legal prejudice when D has spent significant time, effort and expense iii. Courts factor: (1) stage of litigation (2) numbers of papers filed (3) number of pretrial conferences (4) prior hearings adverse to P’s position (5) number of hearings (6) if parties have undertaken substantial discovery 2.
Summary Judgment 56, last gate-­‐keeping function before trial, whether claim could go to jury? Use when material facts not in dispute, all that remains is to apply the law. Notice pleading vague, 12(b)(6) don’t weed out meritlesjurs claims. a. Challenge party’s ability to prove allegations before lawsuit; determine whether there is a genuine dispute of material fact (i.e. fact related to the issue) and if not, whether moving party is entitled to judgment as a matter of law on undisputed facts b. Standard = genuine dispute of material fact; whether any reasonable-­‐fact finder could decide an issue as matter of fact for non-­‐moving party c. 30 days after close of discovery; judge can grant in whole/part d. How lawyers make MSJ: i. Defendants – attack one of P’s key essential elements w/o which he wouldn’t have a case (disproof of 1 element, absence of proof) [Slaven, prisoner committed suicide, D showed P had no proof to show duty; DuPlantis, P slipped on board, D showed P had no proof re: ownership of board] ii. Plaintiffs – must show all undisputed facts supporting each and every essential element of claim (proof of the elements – P, must present undisputed facts supporting each and every element of claim iii. Set out specific facts by citing to materials in record and support w/ affidavit (personal knowledge); can also support w/ depos, answers to interrogatories, admissions iv. *Opposing party must respond w/ countervailing evidence in order to avoid entry of judgment against him; can’t just reiterate allegations in complaint – need proof! e. How does court decide? i. What substantive law applicable? ii. Which facts are material? iii. What evidence about material fact is in record? iv. Has non-­‐movant successfully rebutted? v. What is proper disposition? f. How courts review? 19
g.
h.
i. Review record as whole ii. Do not determine credibility of witnesses or weigh the evidence iii. Draw reasonable inferences in favor of non-­‐moving party Three options for what courts can find: i. The jury could not find for P – no genuine issues of material fact, SJ granted ii. The jury could either find for P or D – genuine issue of material fact (evidence is contradictory), goes to jury, SJ denied iii. The jury must find for D – no genuine issue of material fact, SJ granted Policy rationales: i. Pro: Req. Ps to reveal factual basis for conclusory allegations before trial, thereby having time and $ for court. Weeds out cases that are factually frivolous even after discovery ii. Con: P’s DP right to day in court under 7A 3.
JMOL i.e. directed verdict 50(a) a. If party has been fully heard on issue during jury trial, other party can file motion for JMOL at any time before case submitted to jury; can file on partial issue a. Standard = reasonable jury would not have legally sufficient evidentiary basis to find for the party on that issue by a preponderance of the evidence *same as MSJ (test verdict for sufficiency) (1) Note, some states apply scintilla approach = consider only non-­‐moving party’s evidence even if non-­‐
moving party has offered mere scintilla of evidence in support of position (stricter, harder to win JMOL) b. Judge considers jury (RPP) would conclude evidence sufficient to support verdict (1) without weighing credibility of witnesses or (2) otherwise considering weight of evidence [Chamberlain, brakeman killed, JMOL granted b/c evidence so overwhelmingly on RR’s side as to “leave little room to doubt what fact is”] c. Burden of production – P must produce enough evidence that jury (RPP) could find elements must prove are met d. Burden of persuasion, preponderance of evidence – P must provide enough evidence that jury (RPP) would find for P 4.
Renewed JMOL i.e. JNOV 50(b) *same standard as JMOL a. After trial, party can file motion for renewed JMOL no later than 28 days after entry of judgment b. Cannot renew unless made 50(a) motion that raised same issue [Trievedi, D failed to preserve 50(b) motion for hostile work environment claim b/c did not file 50(a) motion] c. May include alternative or join request for new trial (59) d. Courts typically deny 50(a) motions over 50(b) motions i. If appeal and remand for retrial w/ 50(a) expensive, time-­‐consuming retrial vs. 50(b) judge will only need to enter judgment based on jury’s original verdict 5.
Jury Trial a. 7A – suits at common law, value in controversy > $20, right to trial by jury shall be preserved. Historical test preserves right to jury as existed in England 1791. Doesn’t bind to exact procedures. Look to origins of claim and remedy requested (greater emphasis) and case will be tried in appropriate ct. i. Equity = injunction, declaratory relied, accounting – JUDGE ii. Law = $ damages, return of property – JURY b. FRCP 1938 merged law and equity c. Determine jury issue by issue. If issue of fact underlies law and equity, get jury. Try jury issues first. d. Dairy Queen – jury goes first!! If issue w/ overlapping facts involves legal and equitable claims, trial should be structured so that jury determines issues common to both claims. Judge will then follow jury’s findings on those issues if they are also relevant to equitable claims in action. Note expansion of right to jury trial 20
e.
f.
g.
h.
i.
38 – right of jury in 7A preserved to the parties inviolate; either party can demand w/ written demand no later than 14 days after last pleading served; if do not demand in time then waive; can undo waiver w/ parties consent or motion (consistency w/ liberal amendment philosophy of 15(a)?) 39 – judge can empanel advisory jury to help decide facts, non-­‐binding 42(b) – bifurcate trial, can consolidate/separate trials for convenience if common question or law or fact Why jury v. bench? (1) prejudice? (2) who will relate? (3) complexity (4) time/cost Can juries handle complex cases? 6.
New Trial, 59, usually filed simultaneously or as alternative to 50(b) a. Motion or court on its own, w/in 28 days after entry of judgment; can be granted/denied or conditionally granted/denied (appeal) i. After jury trial: heretofore been granted ii. After non-­‐jury trial: heretofore been granted; can reopen record and make new decision b. Against weight of evidence i. Standard = sufficiency of evidence to support jury verdict, clearly erroneous, miscarriage of justice (more than testing verdict for sufficiency, actually weighing evidence) ii. Court can weigh evidence and assess credibility. Also consider (1) length/complexity of trial (2) importance of credibility determinations (3) party’s comparative fact finding c. Excessive/inadequate verdicts, remittitur 59(e) for excessive verdicts that shock the judicial conscience. Like settlement, cannot appeal if accept. (1) min recovery (2) max recovery (3) amount court deems reasonable. Additur not ok in fed cts. d. Process error – (1) improper argument to jury (2) witness misconduct (3) jury misconduct (4) really serious jury instructional errors (5) evidentiary errors i. Note 61 harmless errors that do not affect parties’ substantial rights are not grounds for granting new trial, setting aside verdict, vacating/modifying judgment e. New evidence f. 50(c) trial court needs to conditionally rule on motion for new trial, in case JMOL vacated or reversed 7.
Relief from Judgment, 60 a. 60(a) clerical mistake, can fix anytime but not during appeal b. 60(b) court has broad discretion but movant needs to show did not contribute to default by knowing or inexcusable action. 1 yr for 1, 2, 3 and any (reasonable) time for 4, 5, 6 (1) Mistake, inadvertence, surprise, or excusable neglect – generally used for default judgments (2) Newly discovered evidence (3) Fraud (of the court) *note can be more than 1 yr if court says so (4) Void judgment – almost always default judgment, no notice or PJ (5) Satisfied, released or no longer equitable – already paid or complied w/ injunction (6) Any other reason – need extraordinary circumstances REMEDIES & POST-­‐JUDGMENT PROCEDURES 1. Remedies a. 69 – judgment enforced by writ of execution; look to fed law on point then go to state law b. 64 – person/property seizures; any remedy available under state law (anomaly) and these: i. Arrest – no longer used, replaced w/ service of process ii. Attachment – seizing of general property ($) to secure judgment ex. fleeing to Switzerland iii. Garnishment – creditor asks court to order third party to turn over debtor’s property/wages to creditor; used to collect on judgment that D refuses to pay iv. Replevin – repossession of personal property wrongfully taken/detained by D; P gives security for and holds property until court decides who owns it [Fuentes, replevin procedures must include notice and opportunity for hearing before your stuff taken to prevent unfair/mistaken deprivations of property] v. Sequestration – specific property removed pending outcome 21
c.
d.
2.
Injunctions 65 i. TRO – no notice, temporary, need affidavit, immediate or irreparable injury, need to give security ii. Preliminary injunction – need notice, need to give security 1. Purpose to preserve relative positions of parties until trial on merits. Factors for granting: (1) likelihood of P’s success on merits (2) whether P will be irreparably harmed if injunction not issued (3) balance of equities, who burden more? (4) public interest, affect third parties? [Camenisch] 2. Bound if parties, agents & employees, active concert and participation and received actual notice [Zenith, Hazletine not bound b/c not party thus no PJ or notice, could have argued alter egos, directing litigation] Declaratory judgment 57, §2201 i. Mechanism for party who is likely to be sued to bring suit itself to determine rights and liabilities; legally binding but does not order any action by party or award remedies. Does not actually resolve case and preserves jury trial rights ii. Only for actual controversies Appeals FRAP 3, 4, §1291, §1292 a. Notice appeal w/in 30 days after judgment. Time doesn’t start until judgment entered on 50(b), 59, 60 b. Can affirm w/o appealing. Need to cross-­‐appeal to attack issues. c. Requirements [MacArthur]: i. Prejudicial – need to be aggrieved by judgment. 61, can’t be harmless error ii. Preserved below – need to preserve claim by timely objection in trial court; judicial economy. Exception: plain error doctrine iii. Presented above – need to identify and present issue in brief; gives notice d. Finality principle §1291 COA has SMJ jurisdiction over all final decisions = all claims resolved on merits such that there is nothing left to do but execute judgment [Rectricel Foam, discovery and case management orders not final] i. Rationale: congestion, duplication, delay, expense ii. Exceptions: 1. Interlocutory appeals 54 – applies to trial court decisions that would have been appealable on own, but for liberal joinder permitted by FRCP. Direct entry of judgment as to one or more, but fewer than all, claims or parties if no just cause for delay ex. MSJ. Need sufficient separateness, cannot separate remedies and liabilities 2. Collateral order doctrine, interlocutory orders that are incidental to merits and cannot be effectively preserved for review on appeal from final judgment (1) separability, unrelated to merits (2) finality, completely resolved below (3) urgency, effectively unreviewable on appeal (4) importance 3. Interlocutory injunction §1292 allows interlocutory appeal of certain orders that may have immediate and irreparable consequences a. §1292(a) injunctions b. §1292(b) discretionary review of certified questions; involve controlling question of law as to which there is substantial ground for difference or opinion and immediate appeal from order may materially advance ultimate termination of litigation 4. Writ of mandamus – extreme, district court’s ruling undisputedly wrong 5. 23(f) interlocutory appeal of class cert orders e. Staying judgment 62 – automatic stay 14 days, then put up bond f. Appellate standards of review i. De novo – no deference, questions of law 1. Reviewing JMOL and RJMOL CoA applies reasonable jury standard – whether reasonable jury could have reached same verdict THEN reviews what judge did as question of law, reviewed de novo 22
ii. Clear error – some deference, findings of fact at bench trial iii. Abuse of discretion – less deference, discretionary orders ex. 42 bifurcate, managing discovery 3.
4.
Claim Preclusion (res judicata) – precludes re-­‐litigation of claims that were claims that were litigated and claims that could have been litigated based on same transaction (majority rule) or same evidence (minority rule). Rational is efficiency, unfair to try twice, inconsistent verdicts, repose, public’s confidence in jury system. *Like 13(a) for Ps (P waives any claims not asserted in first action, if arise out of same transaction). 3 requirements: *Courts will apply broadly in order to encourage joinder and discourage multiple litigation. But courts will interpret narrowly if concerned about harshness of preclusion and burden on P. a. Claim in lawsuit #1 resulted in valid, final judgment on the merits, full opportunity to have case heard i. Valid = need jurisdiction (SMJ, PJ and venue) ii. Final judgment = resolve case such that there is nothing left to do, 12(b), 50, 56 all count iii. On the merits = not a dismissal for jurisdictional problems, venue, or joinder of indispensible party b. Claim in lawsuit #1 and #2 are the same (i.e. transactional) i. Transactional test – same set of underlying facts, same common nucleus of operative fact (broad) *note same test as supplemental jurisdiction [River Park, P filed lawsuit #1 in fed court, lost and filed lawsuit #2 in state court, lawsuit #2 precluded b/c although different claim, same facts that city conspired to delay permitting process] 1. Pros: efficiency, fewer suits, $ 2. Cons: unfair to Ps, not precise, throw in everything for fear it will get precluded ii. Same evidence test – compare evidence (narrow) c. Claim in lawsuit #1 and #2 are between the same parties = same claimant and same respondent i. Ex. A sues B, B counterclaims, B cannot sue again on counterclaim b/c precluded [Taylor, filed lawsuit seeking docs from FAA; Herrick had already filed lawsuit unsuccessfully seeking docs; Taylor not precluded b/c fit into no exceptions and court rejects virtual representation] ii. Exceptions: (1) consent (2) substantial legal relationship ex. property owners (3) guaranteed adequate rep ex. class actions, fiduciaries (4) new P had control of old case (5) old P had control of new case (6) special proceedings d. Exceptions to claim preclusion: (1) consent, waivable (2) court in lawsuit #1 reserved it (3) couldn’t make before b/c of joinder or jurisdiction (4) statute (5) continuing or recurring harm (6) other extraordinary reasons Note MSJ good way to cut off case at beginning of issue/claim preclusion. Cannot use MTD b/c will use evidence outside pleadings, 12(d) Issue Preclusion (collateral estoppel) – precludes re-­‐litigation of identical issues that were actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim. Rational is efficiency, unfair to try twice, inconsistent verdicts, repose, public’s confidence in jury system. *Identify lawsuit #1 (first to reach judgment); determine whether issue in lawsuit #1 arises again in lawsuit #2, circumstances/quality of litigation in #2 to decide if preclusive effect a. Lawsuit #1 resulted in final judgment on merits, valid ex. MSJ not final b. Lawsuit #1 and #2 have identical issues [Panniel, foot injury same issue] c. Issue in lawsuit #1 was actually litigated and decided i. Can infer from what was actually decided what fact-­‐finder necessarily must have found to answer fact question or reach general verdict d. Issue in lawsuit #1 was essential to judgment [Cambria, Jeffrey sued Cambria for negligence to recover personal injuries in lawsuit #1. Both negligence but Jeffrey contributory negligent. Then, Cambria sued 23
e.
f.
Jeffrey for negligence to recover for car damages in lawsuit #2. No issue preclusion b/c Jeffrey’s contributory negligence essential to #1, not Jeffrey’s negligence.] i. Note: See if party in lawsuit #2 could appeal verdict in lawsuit #1. If nothing to appeal, issue not decided. ii. Note circuit split on what happens if #1 found Jeffrey negligent and Cambria not negligent. Can either say neither strictly necessary to judgment, or both necessary. Lawsuit #1 and #2 have the same party/privity Panniel – cannot apply issue preclusion mechanically, even when all req. elements courts can still use discretion, exceptions: i. (1) no appeal in lawsuit #1 (2) question of law really different (3) change in proceedings in #1 vs. #2 (4) change in burden ex. criminal case (5) hurts third parties who cannot foresee new action and have no opportunity/incentive to #1 Ask: did the party being estopped (from the issue) litigate the issue in previous case? If no, then cannot invoke issue preclusion b/c they have not had their day in court. g. Non-­‐mutual defensive issue preclusion (new D against old P) – used by new D in lawsuit #2 seeking to defend claim against old (same) P from lawsuit #1 with issue(s) that were previously litigated against D in lawsuit #1. i. Blonder-­‐Tongue Labs (1971) – if sued before and lost, can be estopped 1. [Lawsuit #1 U. Illinois v. X, jury found patent invalid; Lawsuit #2 U. Illinois v. Y, collateral estoppel on issue of patent validity] ii. Claimant is only person who can get estopped and he choses forum; will want to add all Ds together (incentive to join) iii. Policy rationales: save $, time, “aura of the gaming table” h. Non-­‐mutual offensive issue preclusion (new P against old D) – used by old (same) D in lawsuit #2 seeking to help establish claim against new P from lawsuit #2 with issue(s) that were previously litigated against D in lawsuit #1 *discretionary i. Parklane Hoisery Co. v Shore (1979) – if sued before and won, may be estopped but court should apply broad discretion and not apply when: (1) P easily could have joined earlier action or (2) unfair to D 1. [Lawsuit #1 SEC v. Parklane, jury found proxy statement false and misleading; Lawsuit #2 Shore v. Parklane, collateral estoppel on issue of proxy statement b/c class action could not have joined SEC action, and D had full incentive to fight SEC action] ii. Respondent is only person who can get estopped and he does not choose forum iii. Same policy rationales, but disadvantages: 1. Wait and see – incentive to see if others win and then use against D later 2. Foreseeability – could D fairly foresee other cases? 3. Change in procedure – respondent has no idea where might get dragged into court 4. Inconsistent verdicts – if inconsistent prior verdicts then cannot use; RR hypo, first 25 Ps lose but P26 wins, subsequent Ps also win (incentives settlement) 5.
Arbitration: Form of ADR to resolve disputes outside of court. Results in legally binding decision by voluntarily chosen private decision maker. Governed under 9 USC §1-­‐11. Policy rationale: quick and dirty way to settle disputes, moral informal, designed to save time and $ Embryone – arbitration does not waive substantial rights, just moves them to a different forum a. §2 – written agreement to settle by arbitration is valid, irrevocable and enforceable, applies to controversy hereafter arising or existing controversy b. §3 – party can apply to stay district court action until arbitration completed [Embryone, discretionary, can dismiss if all issues before court are subject to arbitration] 24
c.
d.
e.
§4 – if party fails, neglects or refuses to arbitrate, then can file motion to compel arbitration with district court; need to produce evidence re: making of agreement and failure to comply §9 – arbitration award must be submitted to court and court must grant order §10 – court can vacate award procured by corruption, fraud or undue means, but not for getting law wrong §11 – court can modify/correct award upon application of parties f.
STATE LAW IN FEDERAL COURT – federalism Q 1. RDA §1652 – The laws of the several states, except where the Constitution or treaties of the US or acts of Congress otherwise require or provide, shall be regarded as rules of decision in civil actions in the courts of the United States, in cases where they apply a. If fed statute, constitutional provision, or treaty applies, it will provide governing law b. Otherwise, fed courts should apply relevant state law 2. Swift (Story, 1842) – RDA requires fed courts in diversity cases to apply relevant state statutes (passed by leg) to case, but not bound to follow common law rulings of judges (in other states, treatises) *narrow reading of RDA a. Old view: (1) legislatures make laws (2) courts interpret and apply law (3) states have statutes, local usages, + common law (4) both fed/state courts look at same sources, common law as general body of principles carried over from English law b. Problems: i. Creates forum-­‐shopping ii. “Schizophrenia of administrative justice within a single state” inconsistent judicial rulings in same state on same legal issue [Black & White Taxicab, B&W reincorporated in KY for diversity, agreement illegal under KY common law but ok under fed common law, different result in fed ct v. state ct] 5. Erie (Brandeis, 1938) – federal court in diversity must apply state substantive law, whether law is made by statute or common law [trespassing man hit by RR, apply PA law (no duty) or fed law (duty)] a. New view: (1) no such thing as general common law (2) courts make law too (authorized by Congress) (3) state courts make state law (4) fed courts make fed law in limited areas b. Foundations of Erie: i. Policy, twin aims of Erie: (1) discourage forum-­‐shopping (2) avoid inequitable administration of justice, vertical uniformity ii. Statutory: RDA, fed courts apply state law iii. Constitution: Congress cannot write normal contract/property/tort law of states, reserved to states under 10A c. Klaxon (1941) – federal court in diversity must apply state substantive law that would be applied by state courts in state where fed court sits, choice-­‐of-­‐law i. Doesn’t really prevent forum shopping b/c state choice of law has various applications; tends to favor local litigants d. Standard Oil (1947) – sometimes fed interests req. application of fed law (ex. water pollution, military, one state suing another state); where Congress has not acted affirmatively to regulate essential federal matter, fed judiciary has power to address it by creating “federal common law" i. Has Congress enacted fed rule? 1. Yes, apply fed common law (natl uniformity) 2. No, wait for Congress (natl uniformity) [military payment case, do not create fed common law, defer to Congress b/c would upset balance of branches] 3. No, incorporate state law by reference (natl uniformity not a concern) 6. When there is fed practice but no fed rule, Hanna I “relatively unguided”-­‐ a. Guaranty Trust (1945) – apply outcome determinative test – if outcome different depending on which law applies, then apply state law, retrospective, refusal to label procedural v. substantive [apply fed laches b/c state SOL would bar P’s case] i. Stresses uniformity, same result in state/fed court that are block apart 25
7.
8.
9.
ii. Problem: retrospectively, after violate rule, will always affect outcome, will always lead to substitution of state procedure for fed procedure b. Byrd (1958) – rules of form and mode (procedure) v. state created rights and obligations (substantive) i. If state created rights and obligations… generally defer to state rule (for uniformity) ii. Sometimes countervailing federal interests (i.e. essential characteristic of fed judicial system) might be sufficiently strong to outweigh Guaranty Trust’s emphasis on uniformity, then apply fed law. Unclear what is countervailing fed interest, ex. Constitutional right to jury c. Hanna – modified outcome determinative test, prospective, apply twin aims of Erie + Byrd sensitivity to other policies When there is FRCP (i.e. REA involved), Hanna II-­‐ a. REA §2072 i. A) Ct. has power to proscribe rules of practice and procedure ii. B) Limits: cannot abridge, enlarge or modify any substantive right b. Hanna (1965) [service under FRCP 4 (leave at house) or MGL (in hand, 1 yr), apply FRCP] i. Does Congress have power to regulate this question (i.e. enact FRCP? Yes, Congress has power under Article III to mandate procedure in fed courts that is “rationally capable of classification as procedural” i.e. arguably procedural (broad) 1. Procedural = enforces rights/duties recognized by substantive law and for justly administering remedy and redress for disregard or infraction of them 2. Concurrence (Harlan): arguably procedural no good, instead look to real effects on ground. If affects primary conduct, then substantive. If not, procedural. ii. Has Congress delegated power to Court in REA? Yes, §2072(a) iii. Is the Rule valid? Yes, if actually procedural, §2072(a) practice + procedure 1. Rebuttal: §2072(b) abridges, enlarges or modifies substantive right *unlikely, need to show Congress/S. Ct. were wrong iv. Apply Rule if valid (supremacy clause) When there is fed statute (i.e. REA not involved) a. Fed law governs unless 1) unconstitutional b/t violates constitutional right b) fed law not “arguably procedural” WTF should I do with this: Substantive = rights/duties, remedy Procedural = enforces rights/duties recognized by substantive law and for justly administering remedy and redress for disregard or infraction of them a.
b.
Is the origin of the claim state law (diversity)? Can Congress regulate this question i.e. is it arguably procedural? i. No, then substantive and apply state law [Erie] *note element of claim is always substantive c.
Yes, If Congress has passed statute specific to question, use fed statute Yes, if fed practice but no fed rule on point, Then Hanna I “relatively unguided” i. *Enough for most cases Twin aims of Erie, use fed rule if: 1. Applying fed rule will not result in equitable admin of justice (substantial difference in litigation) 2. Applying fed rule will not encourage forum shopping 3. Note this is basically modified outcome determinative test – outcome significantly different if fed rule used, strongly favors using state law, apply retrospectively [Guaranty Trust, Walker] v. prospectively [Hanna] ii. *When fed rule involves essential characteristic of fed court system, Byrd balancing approach 1. State rule “bound up with” underlying state right, strongly supports using state rule d.
26
2.
e.
Fed countervailing interest, if applying state law would alter/disrupt essential characteristic of fed judicial system, then use fed rule. Balance state/fed interest. Can be sufficiently strong to outweigh Guaranty Trust’s emphasis on uniformity. Ex. constitutional right to jury Yes, if federal directive on point (FRCP or other fed law), Then Hanna II *apply fed directive if valid, no FRCP ever invalidated i. Is there a direct conflict/collision b/t state and fed rule? 1. No, Hanna I 2. Yes, Hanna II 3. Can avoid direct conflict by interpreting fed rule narrowly a. Walker (1980) [no conflict b/t FRCP 3 and OK SOL b/c commencing means different things, then apply Hanna I analysis] b. Shady Grove Ginsburg: [no conflict b/t FRCP 23 and NY state law b/c just about remedy, apply Hanna I analysis, would lead to forum shopping/ineq. admin so apply state rule] ii. Has Congress delegated power to Court in REA? Yes, §2072(a) iii. Is the Rule valid? Yes, if actually procedural, §2072(a) practice + procedure; (b) cannot abridge, enlarge or modify substantive right 1. Shady Grove Scalia: Actually procedural if really regulates procedure and thus cannot affect substantive rights, do not care about purpose of state rule [turning 10,000 $500 claims into $5M claim does not affect remedies, FRCP 23 really regulates procedure of class actions and thus cannot affect substantive rights [FRCP 3 actually procedural, valid, apply Rule] 2. Shady Grove Stevens: test is not arguably procedural, test does intrude into state policy. Is state rule substantive? If not, is it intertwined w/ substance so as to define the scope of the right? In grey area, then apply state rule. But this is totally unclear as to what = substantive [FRCP 3 not substantive or intertwined with substance, valid, apply Rule] a. Ex. SOL, burden of proof, appellate standards of review all bound up w/ substantive right b. Question: did state have substantive reason, extrinsic policy reason iv. Apply Rule (supremacy clause) Comparative Civ Pro (German Advantage) Convergence: managerial judging more compatible with theory of German procedure than our own. We would need to take one step further to achieve convergence: from judicial control to judicial conduct of the fact-­‐gathering process We could inflate pre-­‐trial process w/ managerial judging ex. experts, bifurcate trial. But we are locked in constitutionally to jury system. American German Judicial control of More adversarial – parties responsible for More inquisitorial – judges responsible for sequence gathering/sifting evidence gathering/sifting evidence Can figure out issue at beginning and quickly end trial, efficiency (time and $) Witnesses Parties select and examine, each party bears Judge selects and examines, parties can costs, discovery enormously $$ suggest/nominate, losing party pays Experts Hired guns, general jury distrust of experts, Judges select from state list, prior experience highly compensated as expert, “judges’ aides” 27
Judicial incentives Trial Appellate review Drawn from attorneys, either elected or appointed, has drawbacks but we value democracy 7A jury, promotes system of concentrated trial Various standards, facts found by judge reviewed for clear error, jury such that it is not crazy Professional civil service bureaucracy, own career path, prized career, compensated better, specialized courts, mentors No jury, no distinction b/t trial and pretrial All facts found by judge are reviewed de novo Settle disputes, find truth, promote justice, make fair decisions, protect public’s confidence in the system. Party autonomy. (1) notice pleading (2) jurisdiction (3) discovery (3) jury selection (4) 12(b)(6) + 50, 56 (5) ADR. No way to really avoid unfairness / injustice to some interest. 28