CIVIL PROCEDURE I OUTLINE
Themes: Efficiency v. accuracy; presenting your case as a story
FRCP 1: goal = “to secure the just, speedy, and inexpensive determination of every
action and proceeding” ~ seek balance between efficiency and accuracy
*note: remember local rules! – consistent with FRCP but be aware of them
A few things to think about:
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Notice, opportunity to be heard (“due process”)
Adequacy of P’s filing (“pleading”)
Where does lawsuit get heard? (“venue”) – fed. Court is federal claim and diversity of
citizenship
Include other claims between parties? (“claim joinder”) – think about collectability
Add other parties? (“party joinder”)
Can D sue P? (“counterclaims”)
Demand evidence from opponent? (“discovery”)
Can you add new stuff later? (“amendment”)
Who should decide stuff? (“right to jury trial”)
Can you resolve claims before trial? (“dismissal” and “summary judgment”)
Does judgment bar later suits? (“claim preclusion” or “issue preclusion”)
Due Process: the right to be heard
1. *Due process as a constraint on choice of procedure
a. ISSUE: does indefinite imprisonment violate due process rights?
b. Hamdi v. Rumsfeld – writ of habeas corpus (“that you have the body)
challenging imprisonment
i. Son labeled an “enemy combatant”
ii. Mobbs declaration = the only evidence, but hearsay
iii. Problem: should he have been charged with treason as a U.S. citizen
instead rather than held indefinitely like an alien?
iv. Concern: more process = more cost, more risk to security
v. Holding: giving more process would be untenable and
“constitutionally intolerable” – but note that duration will be length of
war in Afghanistan, not war on terror
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2. RULE: 5 & 14th Amendments: the State cannot deprive a citizen of “life, liberty, or
property” without the due process of law ~ each element must be met
a. ISSUE: Does due process require an evidentiary hearing before termination
of welfare benefits?
i. Content of due process will vary according to context!
b. Goldberg v. Kelley – welfare eligibility
i. due process requires the “right to be heard”
ii. post-deprivation hearing does NOT satisfy due process
iii. State does not dispute that these benefits are property, but does
dispute whether due process served
iv. Here, due process requires oral pre-termination hearing and neutral
decision-maker
v. Court is careful to frame this as a special exception not be extended
past these unique circumstances
c. Matthews v. Eldridge – disability eligibility; challenging SSA constitutionality
i. Here, equate “due” with “fair”
1. process due is calculated by weighing private interest against
Government’s declared interest and potential burden from
giving more process
ii. due process requires opportunity to confront adverse witnesses
iii. use of 3 part test:
1. person’s private interest – what is he deprived of?
a. Subsistence argument by P
b. Court finds not all disabled poor though P is here –
focus on class more than particular person
2. Harm of deprivation & value of additional process
a. *disability eligibility based on medical records = no
need for oral hearing like in welfare (different from
Goldberg – private interest less for disabled persons
generally, value of oral testimony less here)
i. with disability, less likelihood for error so less
value in additional process
ii. P tries to trivialize these differences
3. burden imposed on government by more process
a. means paying all disabled during appeals
b. *due process does not require maximum accuracy, only
fair opportunity to be heard
i. “at some point the benefit of additional
safeguard to the individual affected by the
administrative action and to society in terms of
increased assurance that the action is just, may
be outweighed by the cost”
d. Summary: due process requires (1) notice and (2) opportunity to be heard
before a neutral decision-maker ~ interpreted differently in Goldberg and
Matthews
STAGES OF LITIGATION
I.
The Complaint
a. Pleading standard: FRCP 8(a)(2) – must contain a “short and plain
statement of the claim showing that the pleader is entitled to relief”
i. *purpose: give notice to defendants, weed out really ridiculous cases
ii. pretty lax standard (see Form 11 example of negligence pleading)
1. generally require just notice pleading
a. Dioguardi – P’s tonics missing, complaint sufficient
because gives D notice of some adequate claims
iii. may want to plead more than necessary to encourage a settlement but
be careful not to plead so much you kill your claim
iv. *must accept all allegations as true and make all reasonable inferences
in the P’s favor
b. general rule: notice pleading
i. Conley rule: complaint may be dismissed if “no set of facts” stated by
P for which relief could be given
1. Conley v. Gibson - RR workers case about Union issue,
discrimination
2. Leatherman – civil rights case
a. Said a prima facie case is “an evidentiary standard, not a
pleading requirement”
ii. Twombly change = heightened the pleading standard
1. Bell Atlantic Corp. v. Twombly - Antitrust case – illegal to have
“a conspiracy in restraint of trade”
a. To bring a claim under Sherman Act, must allege
conspiracy or agreement
i. Court says this allegation not sufficiently pled –
only parallel conduct consistent with conspiracy
b. Tension between the Conley language of “no set of facts”
(which they say should be forgotten) and the need for P
to provide some “grounds” on which claim rests
c. Not enough to recite the elements of the claim – need to
“show” the claim has merit
i. Ps fail to bring their claim from the realm of
“conceivable”/”possible” to “plausible”
ii. What could Ps have done to show conspiracy? –
w/o direct evidence maybe need expert
testimony
d. Dissent: pleadings should not replace trials; majority
wrong to dismiss the “no set of facts” language as a
“carless composition”
2. Iqbal – discrimination case
a. Problem: inadequately pleads the intent element
b. *distinguish factual allegations (must be taken as true
here) from legal conclusions
i. “bare assertions” not enough
ii. the FRCP “do not require courts to credit a
complaint’s conclusory statements without
reference to its factual context”
c. *finds that Twombly applies to all civil cases, not just
antitrust
d. chief explanation: given that al-Qaeda Arab Muslim men
mostly, cannot assume discriminatory purpose (could
be legit investigation)
i. Iqbal asking the court to infer discriminatory
intent based on disparate treatment
e. Still take factual allegations as true, just disregard
conclusory bare assertions of the elements
f. Now easier to dismiss complaint, especially if intent
involved
Ways to attack the complaint:
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FRCP 8(b) – admit/deny in answer, assert all defenses
FRCP 8(c) – affirmative defenses (e.g. waiver, statute of limitations, duress)
o Note: D has burden of proof here
o Means even if P proves all the elements, still loses
FRCP 12(b) defenses – see below
FRCP 12(c) – motion for judgment on the pleadings
FRCP 12(e) motion for a more definite statement ~ must be so vague or ambiguous
that D cannot respond
o Bower v. Weisman – motion granted where unclear which of the 3 accused
individuals meant by “defendant” but motion denied for request to specify a
modification of the agreement
o Carpenter v. Dee example – requesting specific damages of weather
conditions would not be granted here
FRCP 12(f) motion to strike material from pleading that is “redundant, immaterial,
impertinent, or scandalous”
FRCP 9(b) heightened pleading for certain claims like fraud which must be stated
“with particularity”
o In Bower, fraud claim dismissed for this
o *degree of specificity is determined by the situation
 But Iqbal recognizes discriminatory intent difficult to allege with
particularity so may be stated “generally”
FRCP 10(a) – motion to dismiss for failure to identify the plaintiff – “the title of the
complaint must name all the parties”
o EXCEPTION: sometimes anonymous Ps okay:
 Doe v. United Services Life Insurance – P allowed to proceed
anonymously not because court concerned with his interest in his job
but because concerned about personal privacy in very private matter
 Homosexuality a typical example of this kind of privacy
interest, especially in 1980s
 Here, Ds not disadvantaged in their case because they know
who P is and can proceed without handicap (just want name
exposed to kill the claim)
 Note: Rules Enabling Act says FRCP cannot abridge substantive
rights (include privacy, constitutional, or statutory)
FRCP 17(a) – “an action must be prosecuted in the name of the real party in
interest” but some may sue in their own right (e.g. for wrongful death)
o DM II, Ltd. V. Hospital Corp. of America – 3 GA companies suing TN partners
 Governing law here is Georgia Partnership Act
 Court finds partnership does exist so each partner is a real party in
interest, no dismissal under this rule!
o Hypo – Professor punched in the face at dinner, family witnessed
o *note: these cases are always questions of state substantive law – is there a
claim in that state?
o Note: FRCP 17(b) – capacity to be sued
II.
12(b) Motions to Dismiss: all are procedural defenses (unrelated to facts!!) –
often called “pre-answer” motions
a. FRCP 12(b)(1)-(5) – motions to dismiss for (1) lack of subject matter
jurisdiction, (2) lack of personal jurisdiction (3) improper venue (4)
insufficient process (5) insufficient service of process
b. FRCP 12(b)(6) – motion to dismiss “for failure to state a claim upon which
relief can be granted”
i. 3 WAYS FOR PLAINTIFFS TO FAIL TO PLEAD A CLAIM:
1. claim not legally cognizable (even if all facts true, won’t
matter)
2. insufficient facts to support a cognizable claim (ex:
Twombly & Iqbal, and private nuisance claim in Bower) – but
may be able to amend and add facts
3. pleading the wrong facts (killing your claim – like Bower
allegation of false imprisonment but then saying she could
freely come and go)
ii. ***assessing the sufficiency of the allegations
1. P can still lose on summary judgment
iii. Delays answer deadline – time “tolls” while waiting on the motion
1. Why assert them early? – some can be quickly remedied by P
while others may kill the case
iv. *means even if all the facts are true, P still must lose
1. court usually allows leave for amend
v. may be partially granted
1. Dioguardi
c. FRCP 12(b)(7) – failure to join a party under Rule 19
III.
The Answer: goal is to show what is actually disputed
a. What to include in an answer:
i. Admissions and denials – see FRCP 8(b)(6); remember, failure to
deny = admission implied (except for damages); may say some things
on “information and belief” – can also partially admit or rephrase
ii. 12(b) defenses
iii. affirmative defenses – see FRCP 8(c) ~ easy to waive if not in the
answer; says even if P proves all elements, still loses
iv. counterclaims and crossclaims – see FRCP 13
b. *assert every possible defense at the same time
i. FRCP 12(g) – cannot raise later defense omitted from earlier motion
BUT exceptions in 12(h)
ii. FRCP 12(h) – 12(b)(2)-(5) are waived if omitted from the motion
1. But may raise 12(b)(1), 12(b)(6) or 12(b)(7) at other times,
even at trial ~ these are “favored defenses” that are not waived
by failure to consolidate
2. ex: cannot file 12(b)(2), have it denied, then try 12(b)(3)
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IV.
iii. FRCP 12(i) – encourages early determination of the 12(b) motions by
saying they “must be heard and decided before trial unless the court
orders a deferral until trial”
FRCP 6(b) – motion for an extension
FRCP 12(a)(1) – must answer within 20 days of service (not filing) of
complaint unless you waive service and then get 60 days
i. Note: FRCP 4(d) incentivizes D to be friendly here by allowing waiving
of service (avoid wasting $ and get 40 extra days) or else pay for
service if refuse to waive
Responds to each paragraph (admit, deny or insufficient evidence)
i. Must admit everything you can (e.g. you were driving even if you deny
the negligence)
1. Zielinski – D denied the whole complaint w/o conceding some
obvious truths (e.g. that P suffered injuries)
a. Illustration of why you should be careful and not
blanket-deny the entire pleading if some of it true
ii. If you deny w/o a sufficient basis, may get sanctions
May be cheaper to file 12(b) first
Motions to Amend the Pleadings
a. Why would you amend? –
i. pleadings set the boundaries for permissible discovery
ii. if you learn of a new claim or defense or a new party you will want to
amend
iii. may want to amend if you want more information on a relevant claim
not yet asserted
iv. note: either party can amend their pleading; presumption favors
amending under 15(a) but presumption against it under Rule 16
b. When can you amend? –
i. FRCP 15(a) = governs amending; fairly lenient standard especially
early – amending granted where “justice so requires”
1. Usually granted, but court will look at prejudice by the delay
(e.g. if a critical witness died in the interim)
ii. FRCP 16(b)(4) – LIMITATION on amending – modify scheduling
order only where “good cause” with judge’s consent (P’s consent no
longer enough like it is in 15(a))
1. Applies when the last day to amend on the scheduling order
has passed  file motion to amend under Rule 16, not 15
c. Why does amending matter?
i. Amending can help consolidate actions
1. Judicial efficiency
ii. When statute of limitations has run, *FRCP 15(c) = “relation back”
1. way to avoid statute of limitations
2. allows new claim date back to original pleading
a. *note: reason for statute of limitations: gives finality,
allow accused to gather evidence while fresh and help
courts conserve resources by not trying stale cases
V.
3. key questions:
a. prejudice because of delay? (usually the killer)
b. Reason for delay? Length of delay? Resulting detriment?
iii. 3 ways to get relation back (treat amendment as part of original):
1. 15(c)(1)(A) – statue allows
2. 15(c)(1)(B) – adding a CLAIM – same transaction or
occurrence ~ different claim or defense against existing party
a. rationale: more efficient when parties already adverse
b. BE SPECIFIC ABOUT THESE ARGUMENTS!!!
3. 15(c)(1)(C) – adding a PARTY “the amendment changes the
party or the naming of the party against whom a claim is
asserted, if Rule 15(c)(1)(B) is satisfied and if, within the
period provided by Rule 4(m) for serving the summons and
complaint [120 day notice] the party to be brought in by
amendment: (i) received such notice of the action that it will
not be prejudiced in defending on the merits; and (ii) knew or
should have known that the action would have been brought
against it, but for a mistake concerning the proper party’s
identity”
a. Singletary v. Penn. Dept. of Corrections – trying to amend
2 years after statute of limitations has run to add D
i. Problem here is 15(c)(1)(C)(ii) – the psychiatrist
they are trying to add as a D probably should not
have known because he was not in the category
of “unknown correction officers”
1. 15(c)(1)(C)(ii) requires constructive
knowledge!
2. issue here is NOTICE – psychiatrist could
not have known he was suspect and so
would now be prejudiced (not notified
within the 120 days)
3. holding: no relation back
ii. note: reason P might list “Doe” Ds most common
where unable to see name tag of an officer
b. Christopher v. Duffy – family sues within statute of
limitations for lead poisoning but now trying to add
lead manufacturers as Ds after limitation run
i. Says relation back should be allowed unless good
reason to deny it…
ii. Court asks whether:
1. Prejudice on D? – yes (Duffy dead now)
2. Good reason for delay? – no
3. = NO relation back
iii. Note: statute of limitations may sometimes be
“tolled” (but not here)
Sanctions
a. FRCP 11 – cannot file with bad faith (no unwarranted legal claims, no bad
purpose, no claim or facts you don’t reasonably believe can be proven)
i. 1983 amendment: goal of increasing fairness and effectiveness of the
rule by making litigants “stop and think” before filing ~ made it too
easy to get sanctions!  a few obstacles added by 1993 amendments
to decrease the # of these motions
ii. Applies to most papers filed with the court (except discovery which is
not filed with court)
iii. 4 subparts of 11(b)- all have some subjective element because
certifying to the “best of the person’s knowledge” by signing and filing
with the court, the lawyer certifies:
1. 11(b)(1) - Not brought for improper purpose
a. a subjective test
2. 11(b)(2) - Legal contentions warranted by law (or could be) ~
not frivolous
a. an objective test (reasonableness)
b. example: Chaplin v. Dupont claim of national origin
(Confederate Southern American) NOT sanctionable! –
just a bad legal argument unprecedented
i. *general rule: judges will not sanction bad legal
arguments unless in bad faith
ii. also, if you can’t get a 12(b)(6) granted, probably
can’t get sanctions either; allow creativity
iii. contestable ≠ sanctionable
3. 11(b)(3) - Factual allegations have or probably will have
evidentiary support
a. an objective test
b. example: Chaplin v. Dupont claim of discrimination on
basis of religion (Christian) sanctionable because no
factual or evidentiary support
c. example: City of Cleveland – allegations of intent w/o
direct evidence probably should include “information
and belief” to sanction proof them
4. 11(b)(4) - Denials also based on evidence or on “information
and belief” = must admit when you don’t yet have proof of
allegation so say it on “information and belief” (code for no
evidence yet ~ be careful not to overuse this phrase)
a. an objective test
iv. *safe harbor provision: can withdraw claim when threatened with
sanction motion
1. note: Rule 11 is a continuing obligation so that you cannot
“later advocate” pleadings you now know are unsupported
a. with every signing, filing, and advocacy, you are reasserting non-violation
v. how to make a Rule 11 motion:
1. notify the other party by serving them with the motion
a. allow safe harbor provision to correct
b. then wait 21 days to file in court (a hurdle added in the
1993 amendments
2. if there is a violation, you must prove it – then sanctions at the
court’s discretion
3. if court does award sanctions, amount will be whatever it takes
to “deter repetition” under 11(c)(4) – default: awarded to
court
a. note: under 11(c)(3) court may issue an “order to show
cause” why they shouldn’t be sanction (no safe harbor
here)
VI.
Joinder – only proper where Rule supporting the joinder
a. *key questions to ask:
i. What must you do?
ii. What may you do?
iii. What should you do?
b. *remember to argue SPECIFICS and think about why joinder would be
convenient, efficient, fair, etc.
c. FRCP 18 - JOINDER OF CLAIMS
i. Can sue the same (already adverse) party even if claims totally
unrelated
1. Ex: can sue for slander and car accident at the same time
ii. Liberal standard ~ goal of efficiency
1. BUT, limited by other FRCP – if you split your claim, may not be
able to bring one later ~ preclusion (some claims are
compulsory) & res judicata (claims so related that P must bring
it now or forever barred – 13(a) for Ps!)
iii. If too confusing to join, court can split the claims under FRCP 42(b)
for convenience, prejudice or economy
d. FRCP 19, 20, & 21 – JOINDER OF PARTIES (can join Ps or Ds)
i. FRCP 19 = REQUIRED JOINDER OF PARTIES
1. 19(a) necessary parties ~ highly desirable party
a. if feasible to join, do so (if it will not destroy
jurisdiction)
i. Ds often try to convince court that a party not
joined that would destroy jurisdiction is
indispensable – a 12(b)(7)
b. Joint tortfeasors are never necessary parties because P
not prejudiced, able to collect from 1 tortfeasor
i. Temple v. Synthes – error to label joint
tortfeasors as indispensable!
1. Surgery w/ defective device
2. Holds doctors do not even meet
“necessary” threshold – permissive
parties
ii. Daynard - under theory of joint and several
liability, only 1 D needs to be named so S.C.
12(b)(7) for failure to join Miss. Ds denied
1. Held P need not name all co-obligors
2. Rule 19 is concerned with risk of
inconsistent obligations, not inconsistent
adjudications
c. may be able to proceed w/o necessary party, depends
on degree of prejudice…
2. 19(b) indispensable parties ~ subset of necessary parties
a. if party necessary and cannot be joined and cannot
proceed w/o them, they are indispensable
b. courts consider 4 factors:
i. extent of prejudice?
ii. prejudice lessened by dismissing?
iii. whether adequate judgment could be given in
the party’s absence?
iv. how much dismissal would hurt P – does P have
any alternatives?
3. what makes a necessary party indispensable?
a. Prejudice to someone because of the absence
b. Someone who claims an interest on the claim and
proceeding w/o them would either hurt them or
prejudice a current party (e.g. exposing them to
inconsistent obligations)
4. Why you may not be able to join a party:
a. Personal or subject matter jurisdiction
ii. FRCP 20 = PERMISSIVE JOINDER OF PARTIES
1. (a) same transaction or occurrence test + (b) common question
of law or fact test
a. *need proximity in time and place! ~ logical nexus
b. *need commonality
2. Hypo – Hall punches Trevor & Ben on the same day
a. Similar question of law? – yes, battery
b. Same T/O? – debatable (if different days, probably not;
if different places, maybe if same fit of violence)
3. *once joined under 20(a), liberal joinder of claims of 18(a)
applies
4. Kedra v. City of Philadelphia – Ps bring civil rights action; Ds
arguing misjoinder
a. Held same T/O even though over 14-15 months
i. Helps it was a conspiracy charge – “systematic
pattern of harassment” as the T/O (any common
purpose/intent can help connect events)
ii. Joinder proper here because “reasonably
related”
b. Issue of prejudice? – 20(b) ~ can separates parties to
avoid prejudice…court says it will separate as needed
after discovery
iii. FRCP 21 = MISJOINDER/NONJOINDER
1. allows court to drop or add any dispensable party on its own
initiative or as result of a motion from any party
2. “misjoinder of parties is not a ground for dismissing an action”
3. court may sever any claim against a party
VII.
Counterclaims & Crossclaims
a. FRCP 13 Counterclaims
i. Claims between opposing parties
ii. Usually made in the answer
iii. Can change the stakes for P and encourage settlement
iv. *Need not always be out of the same T/O because already adverse so
falls under Rule 18 joinder of claims
1. if same T/O, compulsory counterclaim – must bring it now,
barred from bringing later
a. Podhorn – here, issue whether same T/O
i. 13(a) and res judicata (mirror of 13(a) for Ps)
problems only arise after 1st action brought
ii. court agrees with landlord that the tenancy the
T/O but P tries to separate occupancy/
possession and warranties/habitability (1st
action about eviction and rent payment, 2nd
action about false swearing)
iii. holding: same T/O so claim barred
2. if not same T/O, permissive counterclaim – consider possible
advantages or disadvantages (e.g. jury prejudice – don’t want
to bring defamation claim about being alcoholic with wrongful
death claim against you)
b. FRCP 13 Crossclaims
i. claim between co-parties
ii. 13(g) = standard is same T/O ~ must be closely related to at least one
claim in the action
iii. ***always permissive, never compulsory!
VIII.
Impleader & Interpleader
a. IMPLEADER - FRCP 14 – bringing in a party not yet part of the lawsuit
(different from counterclaiming or crossclaiming) that “is or may be liable”
i. Only 2 ways D can join an absent party:
1. 14(a)(1) impleading for derivative/conditional liability
2. 13(h) – allows D to add additional party to claim already
against a party in the lawsuit
ii. Can only relate to conditional/derivative liability ~ if liable to P,
current D saying a third party partly or fully responsible
IX.
1. D’s claim against third party D is dependent, not a separate
claim – depends on whether P wins
2. Gross v. Hanover Ins. Co. – D insurance co. impleading jewelry
store owner and worker because theft due to their negligence
a. *need a theory of liability to implead
b. must balance cost of adding new suit against potential
prejudice to P or third party D
3. same T/O not enough – must have a theory of liability
a. Olavarrieta – impleader denied for student loan, P
trying to add UF in his suit with U.S. (guarantor)
iii. Proper impleader does not “point the finger” – not “empty chair”
defense (P has control over who D is) but rather functions as a
defense
iv. Parties called “third party plaintiff” (impleading D) and “third party
defendant” (impleaded party that was not an original D)
1. 14(a)(2) – third party D can raise defenses not raised by D
v. *never compulsory – can always bring separate suit later
vi. 14(a)(3) – P can assert claims against a third party D
b. INTERPLEADER is another joinder device designed to let a party (e.g. bank
or insurance co.) avoid inconsistent obligations
i. FRCP 22 – may interplead when claimants could be exposed to
double or multiple liability
1. rule interpleader: requires subject matter jurisdiction
2. statutory interpleader: does not require subject matter
jurisdiction, just need at least 2 diverse claimants w/ claim
exceeding $500
3. also requires:
a. only 1 thing/obligation available
b. stakeholder not claiming interest
c. multiple claimants
d. stakeholder has reasonable fear of multiple liability
e. stakeholder must act timely (and also may be able to
collect attorney’s fees)
Intervention – for absentee parties trying to get in ~ no joinder motion made!
(unlike Rule 19 used by Ds to force Ps to add a party)
a. FRCP 24 – allows nonparties to join ongoing litigation either as a matter of
right or at the discretion of the court (permissive)
i. Either Ps or Ds can intervene
ii. When some third party interest is at stake and the interest is not
adequately represented (e.g. landowner/developer with interest in
environmental issue whose interest not represented already)
iii. 24(a) = intervention as a matter of law – must be “on timely motion”
1. 24(a)(1) – unconditional statutory right
a. ex: some federal statutes like Clean Air Act
2. 24(a)(2) – if person, “claims an interest relating to the
property or transaction that is the subject of the action, and is
so situated that disposing of the action may as a practical
X.
matter impair or impede the movant’s ability to protect its
interest, unless existing parties adequately represent that
interest” (e.g. developer)
a. interest – means a direct, significantly and legally
protectable interest belonging to a party not yet part of
the suit
iv. 24(b) = if you can’t intervene under 24(a), may still be able to under
this permissive intervention; requires:
1. **timeliness (the threshold requirement)
a. 24(b)(3) - court will evaluate the delay or prejudice of
the current litigation
i. problem in U.S. v. NIPSCO – Save the Dunes
Council not allowed to intervene because
1. no right or legal interest under 24(a)
2. no permissive intervention under 24(b)
because would unduly prejudice the
parties
3. finds the Council a private citizen w/ no
interest
2. “a conditional right to intervene by a federal statute” OR “has a
claim or defense that shares with the main action a common
question of law or fact”
Discovery ~ idea that disclosure  truth (but may be difficult in adversarial
system where flow of information may be manipulated)
a. FRCP 26-37 cover discovery
i. Purpose: get revealing facts (usually not given in notice pleading)
1. Eliminate surprise/trials by ambush
2. Preserve testimony
3. Diminish importance of pleadings
4. Increase effectiveness of summary judgment
5. *Focus trial on the disputed points (judicial efficiency served)
6. Allow each side to assess strengths/weaknesses in advance
7. May make trials unnecessary because of informed settlement
ii. U.S. unique in its expansive discovery
1. Generally, parties entitled to demand any discovery of matters
that are:
a. Relevant to a claim/defense
b. Not unreasonably cumulative or burdensome
c. Not privileged (even if relevant)
d. *note: before 1983 amendment, Rule 26 allowed
unlimited discovery “unless the court orders otherwise”
i. only about 10% of cases do extensive discovery,
most settle
2. U.S. has an adversary system (privately ordered)
a. Advantages: parties control their own lawsuits and each
assigned a single function = ensures fair and efficient
resolution of disputes
b. Critique: wealth disparities
c. Note: modern Europe has government regulated
system, U.S. different (but also unique government)
b. FRCP 26 – scope of discovery ~ very broad but has boundaries
i. Obligation to disclose, turn over good evidence (show your cards)
ii. Very liberal but 2 main exceptions:
1. (1) privileged
a. types of privileges:
i. attorney-client
ii. work-product (Hickman) ~ idea that you want
attorneys to develop this evidence w/o fear of
being compelled to turn it over later
iii. doctor-patient
iv. spousal privilege
b. Hickman – tugboat case
i. can’t inquire into files and mental impressions of
an attorney ~ relevant but privileged
1. facts not protect, but mental impressions
(attorney’s notes) are
ii. upheld the adversarial nature of the system by
not demanding production
2. (2) duplicative/cumulative
a. Seek a balance between costs of discovery and benefits
iii. What material is discoverable?
1. 26(b)(1) – need not be evidence admissible at trial, only need
to be relevant (“reasonably calculated to lead to the discovery
of admissible evidence”) – can be hearsay
a. scope of discovery > admissible evidence
2. 26(b)(2)(C) - LIMITATIONS where:
a. 26(b)(2)(C)(i) – “discovery sought is unreasonably
cumulative or duplicative, or can be obtained from
some other source that is more convenient, less
burdensome, or less expensive”
b. 26(b)(2)(C)(ii) – “party seeking discovery has had
ample opportunity to obtain the information by
discovery”
c. 26(b)(2)(C)(iii) – “burden or expense of proposed
discovery outweighs its likely benefit, considering the
needs of the case, the amount in controversy, the
parties’ resources, the importance of the issues at stake
in the action, and the importance of the discovery in
resolving the issues”
3. note: discovery abuse may be sanctionable – be careful not to
ask for too much
iv. phases of discovery:
1. Discovery can commence after 26(f) conference which takes
place at least 21 days before 16(b) conference with court
(which is scheduled by court no later than day 120)
a. Idea that parties will agree early on how discovery will
take place
2. 26(a) = initial disclosures 14 days after 26(f) conference
a. 26(a)(1) – mandatory initial disclosures – includes
all possible witnesses, contact info, insurance info,
expected damages, etc. ~ not party-driven
i. 37(c) = sanction for failure to disclose these
3. remember, 26(b) applies at every point of discovery
a. **ongoing obligation to disclose!
4. 2 basic problems:
a. other side holds out, objects and refuses to turn over
things you need
b. overly broad requests made by opponent that they are
not legally entitled to get
i. *options when other side requests too much:
1. motion to compel – FRCP 37(a)
ii. *options when you are accused of requesting too
much:
1. just say no (will likely then get motion to
compel)
2. file a motion for a protective order –
FRCP 26(c)
a. can ask for partial protection (e.g.
black out SS #s)
b. but probably should do this before
other side moves for motion to
compel so you don’t look
uncooperative
c. 4 main discovery devices: party-driven – debate is in the DETAILS
i. depositions – FRCP 30 (and 26(b)) – helpful with the why questions
1. usually conducted orally and transcribed
2. advantages: some spontaneity, similar to trial questioning
witness under oath, opportunity to follow-up or take in new
direction, anything recorded available for trial, nonparties can
be deposed!
3. Disadvantages: limited # (30(a)(2)(A)), expensive
ii. interrogatories – FRCP 33 (and 26(b)) – useful for factual questions
like who, when, how, what documents exist but NOT “why”
1. hard to get useful info but can help in seeing what info other
side has, could help in summary judgment
a. but limited #
2. may partially object, state what you are willing to give and
explain objections for refusals – rephrase more narrowly
a. good sample phrasing:
XI.
i. “state all the facts concerning X”
ii. define “reasonable” length of time
b. *common phrasing problems:
i. overly broad/relevance issues
ii. so poor it can be evaded (drafting problems)
3. general rules:
a. don’t ask questions you know the answer to
b. try to keep them short and concise (more words =
easier to evade)
c. save questions that require follow-ups for depositions
d. be prepared to get the same interrogatories back ~
*think about it from opposing party’s perspective
4. advantages: good way to get useful noncontroversial info,
inexpensive to prepare and serve, available for use at trial
5. *biggest disadvantage: easily avoided – lawyer gets 30 days to
draft response; also may give opponent insights to your
thinking or theories on the case
iii. request for admissions – FRCP 36 (and 26(b)) – usually Q & A
format for admit/deny
1. advantages: can “lock in” admissions/denials of fact, no limit
on # of these allowed
iv. document requests – FRCP 34 (and 26(b))
1. Moss v. Blue Cross Blue Shield – even if doc. requests overly
broad on their face, objecting party may still need to respond
to the extent the request is not objectionable
a. P bears the burden of showing relevancy
i. Fails to meet burden here
b. Court notes that some phrases signal undue burden
(like “relating to” or “regarding”)
c. Court here requires a partial response – e.g. report
employee terminations from last 5, not 10 yrs.
i. *judges like objective, logical benchmarks that
make the request seem less arbitrary
2. advantage: “documents” a very broad term
3. disadvantage: hard to find balance between over and under
inclusive
v. note: FRCP 35 covers physical and mental exams
vi. *note: informal discovery may be a less expensive way to get info that
does not require notice or cooperation (e.g. nonparty interviews, site
visits, public records, asking other attorneys, internet research)
Electronic Discovery
a. FRCP 37 – extension of Rule 26
i. Major issues here:
1. Spoliation of evidence
a. 37(e) - “absent exceptional circumstances, a court may
not impose sanctions under these rules on a party for
failing to provide electronically stored information lost
as a result of the routine, good faith operation of an
electronic information system”
i. Teague v. Target – sanctions for spoliation
usually authorized only if in bad faith
1. Adverse jury instruction given here
2. Sanctions granted
b. *note: jury allowed to make adverse inferences if
spoliation
c. remember, talk about e-discovery at 26(f) conference
i. discuss spoliation early
ii. talk about what happens if privileged info
accidentally turned over – 26(b)(5) “claw back”
2. production of evidence – typical problems & new rules:
a. often more expensive (many copies)
b. inaccessibility issue
i. widely dispersed, maybe hard to convert
ii. privileged info could be embedded
c. concerns about sanctions for not preserving = 37(d)/(e)
solution
d. * the 4 Ps (new rules) = goal of resolving litigation on
the merits, not the costs
i. Preservation
ii. Form of Production – requesting party can
specify!
iii. Privileged information
iv. Proportionality (some evidence hard to get) –
most controversial – party need not produce einfo that is unduly costly or burdensome but
must say why it is ~ may still be compelled if
good cause
1. Court may cost-shift to requesting party
ii. *party resisting discovery had the initial burden of showing it’s
inaccessible, too expensive, etc.
1. the broader the request, the easier to resist
iii. *review all e-documents before turning them over – may
accidentally waive attorney-client privilege (cannot partially waive),
check to see if it is responsive to the request
b. cost-shifting of e-discovery ~ general rule that responding party must bear
the expense of compliance but exception in 26(c)
i. considered only if imposes undue burden or expense on responding
party
ii. Quinby – inaccessible back-up tapes case
1. * “obligation to preserve arises when party has notice that
evidence is relevant to litigation or should have known it
would be relevant to future litigation”
2. 26(b)(2) allows court to limit discovery where burden >
benefit
3. holding: only a percentage of the costs of restoring and
searching the inaccessible back tapes shifted to P
XII.
Jury Control
a. Jury trials generally
i. Advantages: civic engagement (democratic, educational), guards
against tyranny, restrains abuses (life tenure for fed. Judges)
ii. Disadvantages: maybe not the best decisionmakers (not legally
educated usually), costly, may impede good legal outcomes
iii. FRCP 38 – parties have 10 days after pleadings and answers to
demand jury – usually done in the pleading
1. Most lawyers want a jury when they have good facts
2. note: decisions about whether to go to trial often made in light
of what jury might do
b. jury’s role
i. impartially weigh the evidence
ii. find the facts
iii. apply the law to the facts
c. 7th Amendment right to a jury trial: “in suits at common law, where the
value in controversy shall exceed $20, the right of trial by jury shall be
preserved” – see FRCP 38
i. * “preserved” means you must look at history…
1. legal or equitable relief sought?
a. Kind of relief sought?
i. *often decisive ~ FOCUS ON THE REMEDY
(Brennan’s dissent in Terry – said don’t even
waste the time analogizing)
ii. seeking $ usually means legal claim
b. Best historical analogy?
ii. Terry – issue whether back pay remedy triggers right to jury trial
1. Claim did not exist at early English common law
a. So search for analogy…
b. Most like a breach of fiduciary trust (Union’s idea)
i. This is an equitable claim (dissent’s focus), but
since remedy sought is $ and remedy matters
more, majority says it is legal claim
1. Here, right to jury trial
iii. *even though sometimes entitled to jury, may not be tactical so can
waive the right (may stereotype, ask who judge is)
iv. limitations on right to jury trial:
1. summary judgment ~ filtering device
2. motion to dismiss
Judgment as a Matter of Law
*SJ, DV, JNOV all substantially the same standard just differ in timing – they
don’t influence the jury but rather disregard it!
XIII.
SUMMARY JUDGMENT: a form of jury control – take case away from jury
when no factual dispute to decide (pre-trial); analogous to 12(b)(6) except party
does state a claim but does not have sufficient evidence to meet trial burden
a. 3 key questions:
i. what does it take to make a fact disputed?
ii. What makes a fact material?
iii. What is the moving party’s burden on the motion?
b. Efficiency v. accuracy
i. Time to show support for the allegations made in pleadings
ii. Is the evidence enough to get jury verdict for the nonmoving party?
c. 12(b)(6) v. Summary Judgment
i. 12(b)(6) = ASSESS SUFFICIENCY OF ALLEGATIONS, do not look at
their truth or support ~ not meant for weighing evidence!
ii. Summary Judgment = ASSESS SUFFICIENCY OF EVIDENCE
d. FRCP 56 – accelerate the time where court determines there is nothing for a
jury to decide! ~ fast forward to directed verdict stage
i. Often have local rule 56 usually building on the Federal Rule
ii. P cannot bring until 20 days after start of claim of when D files
iii. D can bring anytime (but usually motion made after discovery)
1. FRCP 56(f) – way to reply to very early SJ motion brought
before discovery ~ way to delay
iv. Disputed issue(s) of material fact = NO summary judgment
1. * “material” means relevant to legal claim AND that could be
dispositive to the outcome
2. **if competing material issue (credibility contest), it is a
question for the jury! ~ where reasonable minds may differ, go
to jury
3. But if you can kill an essential element of the claim, then
all other disputed facts are immaterial
4. go element by element through the claim
a. *does P/D have enough evidence to meet their burden
@ trial? Enough to permit reasonable jury to find for
them?
e. **Burden on moving party to show entitlement to summary judgment = must
show “no genuine issue as to any material fact” (real dispute about a
dispositive fact) ~ key questions:
i. is the evidence offered admissible at trial?
ii. Does the evidence really support the claim (logical nexus)? Matsushita
iii. *note: admissions usually cannot be disputed
iv. example: Boston Celtics case – insurance co. got summary judgment
because Ps did not counter evidence that others saw the player using
cocaine and even though initial application don’t all ask about drug
use, did not mean later ones wouldn’t = NO FACTS ACTUALLY
MATERIAL AND DISPUTED
f. General rule: courts look only at the evidence in deciding summary judgment
i. Scott v. Harris – Supreme Ct. car chase case
1. Summary judgment granted – not enough evidence for a
reasonable jury to conclude he was not endangering others
a. Crossed over double yellow line 5 times, ran 3 different
red lights
2. Stevens dissent (8-1 decision)
a. But, used turn signals to pass, no near-collisions, etc.
ii. Exception in Adickes – here, rely some on the allegations because
“verified complaint” treated as affidavit
1. Supreme Court really trying to promote desegregation so go
out of their way to help P here avoid summary judgment on
her conspiracy allegation
2. This case still cited but mostly superceeded…
g. The Trilogy Cases
i. Celotex – moving party no longer needs affirmative evidence ~ just
“show” (say or point out) that nonmoving party lacks evidence
1. Sufficient to “point and laugh”
2. Claim here that P lacked evidence that D’s asbestos caused the
harm
3. You can win on this motion w/o producing any evidence of
your own!
ii. Matsushita – need a logical connection between claim and evidence
offered (here, eating meat not a cause of paralysis)
1. Useful when some evidence put in but court may disregard that
evidence as implausible or unbelievable
2. Way of dismissing evidence that would otherwise preclude SJ
iii. Anderson v. Liberty Lobby – if burden of proof heightened at trial,
party facing summary judgment must put forth more evidence
1. *consider burden of proof at summary judgment ~ similar to
Celotex argument just higher burden now
2. applies for “clear and convincing” standard of proof cases
XIV.
DIRECTED VERDICT – another jury control device ~ mid-trial
a. FRCP 50(a)(1) – can bring this motion after P has rested their case-in-chief
(earliest point) or after both parties rest
b. FRCP 50(a)(2) – “may be made at anytime before the case is submitted to
the jury”; specify relief sought & “law and facts that entitle movant to
judgment”
XV.
XVI.
i. like SJ, still concerned with triable facts
c. if no reasonable jury could find for P, not violation of 7th amendment right
d. *possible for SJ to be denied but DV granted
i. when evidence anticipated different or insufficient
1. *remember, at SJ stage, look at incoming evidence in light
favorable to nonmoving party
JNOV (JUDGMENT NOTWITHSTANDING THE VERDICT)– post-trial jury control
mechanism; a.k.a renewed judgment as a matter of law
a. Advantages: efficiency ~ no new trial on appeal unlike SJ or DV)
b. Disadvantages: P may be able to emphasize their verdict on appeal so could
be harder to defend
c. Galloway – moron low grade
i. Draw reasonable inferences against granting JMOL
ii. Evaluating breach element of contract
iii. Problems with doctor’s testimony ~ could make Matsushita argument
that some evidence so unreliable it should be disregarded
Other Jury Control Devices During Trial
a. Bifurcation/trifurcation of issues: consider prejudice and complexity of
issues
i. FRCP 42(b) – “for convenience, to avoid prejudice, or to expedite and
economize, the court may order a separate trial of one or more
separate issues…”
ii. most helpful when one of the early issues is dispositive and later ones
(like damages) more lengthy and complex
iii. totally at court’s discretion
iv. Example: D pharmaceutical may want to bifurcate causation and
damages ~ often a tactical question
b. Jury instructions
c. General v. specific verdict request – FRCP 49
XVII. Post-trial Motions
a. *when the judge does not agree with the verdict, 3 options:
i. let it go
1. personally disagree but no clear error
ii. JMOL – JNOV
1. Total reversal
iii. Order a new trial – FRCP 59
1. Less extreme than JMOL
2. Granted where there was:
a. a flaw in the decisionmaking or to correct an error (e.g.
admitting material evidence in error)
b. Verdict “against the great weight of the evidence” but
shy of JNOW = likely will be reversed on appeal
c. jury misconduct
3. possible to appeal granting of new trial but hard to do
4. Often accompanied by remittitur (avoid new trial if agree to
reduced jury awarding ~ a conditional granting of motion for
new trial)
a. When evidence supports the verdict but problem with
the damages – awarding often seen as maximum here
b. *note: additur when P wins and moves for new trial on
damages – fed. courts say it violates 7th Amendment but
allowed in state courts (ex: med. Malpractice hypo)
c. even if agree to remittitur, losing party can still file for
appeal (unless they agree to waive that right)
iv. *LOSING PARTY CAN FILE NOTICE OF APPEAL within 30 days of
judgment w/o court’s permission as a matter of right
v. *jury’s verdict must be upheld on appeal if it is supported by
substantial evidence
1. Johnson - jury verdict for P (injured custodian), but JNOV for D
(the school) – jury verdict reinstated on appeal
a. Viewed evidence in light most favorable to P
b. Reviewed the JMOL de novo
b. *if you lose on appeal, last resort in Rule 60
i. FRCP 60(a) = motion to vacate the judgment to fix minor clerical
errors (e.g. mistake or typo in party’s name)
ii. FRCP 60(b) – motion to vacate judgment (often when new evidence
comes)
1. 6 subparts in 2 categories
2. 60(b)(1)-(3) = must be raised within 1 yr.
3. 60(b)(4)-(6) = must be raised within a “reasonable time”
a. 60(b)(6) = catch-all ~ “any other reason that justifies
relief” – only applies when (1)-(5) do not
i. Brandon – clerical mistake docketing the wrong
attorney’s name
1. Really a 60(b)(1) “mistake” so won’t
allow 60(b)(6) to evade the time limit
2. Brought 368 after so barred – 1 yr. limit
very strict, not flexible
a. 1 yr. rule is jurisdictional – no
discretion possible
b. Rationale: want finality, efficiency
c. Note: P can voluntarily dismiss at anytime usually w/o prejudice under FRCP
41(a)(1)
Historical Background of Civil Procedure
 Split between law and equity ~ now mostly merged
o Legal courts traditionally more rigid; equity courts aimed at justice
o No equitable relief was given where adequate remedy at law
o *FRCP (1938) adopted from equity (not law) rules – wanted to incorporate discretion for
justice  loose pleading standard of 8(a)  counter-revolution in the wake of Twombly and
Iqbal (trend back to rigidity?)
o Enduring difference in damages
 Themes:

o
o
Other
o
o
Uniformity v. discretion
Efficiency v. accuracy
Used to have single-issue pleading
***Goal of FRCP: uniform course of pleadings for all cases; wanted to make procedure
inferior to substance , emphasis on flexibility
PLEADING CHECKLIST
 adequacy of the complaint
1. court’s jurisdiction (next semester)
2. statement of the claim – does the complain
adequately state claim showing pleader entitled to
relief?
a. Does the complaint allege fraud or mistake?
i. Yes  Rule 9 – need particularity
ii. No  Rule 8(a)(2)’s general pleading
standard applies
b. All other claims – does the complaint give
adverse party “fair notice” of the claim
asserted?
i. Does the pleading track an official Form
from the FRCP Appendix?
1. If yes  automatically adequate
under Rule 84
2. If no  see below
ii. Does the claim as pleaded, if proven at
trial, entitle the P to relief (does it
sufficiently allege each element of the
legal claim?)
1. Trial court should accept P’s
allegations as true, should make all
“reasonable” inferences in P’s favor
(assume can prove what alleged and
what could be inferred from that
evidence)
2. UNLESS the P’s allegations are
conclusory or a mere formulaic
recitation of the elements of a cause
of action…in that case, P must also
allege sufficient facts to support a
conclusion that liability is
“plausible” (Twombly & Iqbal)
3. In that event, if facts are alleged
that substantiate allegations of
liability, then the pleading standard
satisfied
3. Damages – does the complaint adequately demand
judgment for relief sought?
 adequacy of D’s answer
o timeliness – Rule 12(a)


waiver of service – if D waived under 4(d), D has
60 days to respond
 no waiver of service – D must answer within 20
days unless:
 extension by court
 extension by other party’s consent
o responses to allegations
 admissions – D cannot introduce evidence seeking
to disprove allegations that were
admitted…admissions can be:
 express or
 implicit (by failing to respond)
 denials – “I don’t knows” – D can deny, or can
plead lack of information sufficient to forma
belief as to truth or falsity
 these are treated as denials
 unless they concern a mater presumptively
within D’s knowledge
 affirmative defenses: matters as to which the D
will bear the burden at trial and which must be
set forth in the answer or deemed to be
waived…categories:
 Rule 8(c) – lists some
 Substantive law: some substantive laws
define certain defenses as affirmative
 All others: does D seek to knock out an
element of P’s claim or does it purport to
negate liability even if P were to prove
each element
amendments – is it proper? (15(a), maybe 16)
o as a matter of course – w/o court or other party’s
permission
 prior to filing of responsive pleading (if one is
called for)
 note: motions are not “responsive pleadings”
so filing of a pre=answer motion will not
cut off the P’s right to amend as a matter
of course
 within 20 days after filing of the pleading to be
amended (if no responsive pleading is permitted,
then the deadline for Amendment as a matter of
course is 20 days)
o not as a matter of course – all other amendments are
governed either by Rule 15 or 16
 rule 15 governs until last date to amend under
pretrial scheduling order; rule 15 permits
amendment upon either:



consent of adverse party, OR
leave of court; “leave to amend” should be
granted if interests of justice will be
served by permitting amendment
o general policy favors permitting
amendment (resolve on the merits); this
general rule may be overridden if there
is a sufficient showing either:
 unfair prejudice to opposing party
 bad faith or intentional delay
 rule 16 governs if last date to amend under
Court’s pretrial scheduling order has
passed…in that event, “motion to amend” is
treated as “motion to modify the scheduling
order” which shall be granted only upon
showing of good cause
o general policy against modifying
scheduling order
o good cause depends on degree of
prejudice to opposing party, and on
moving party’s reasons for failing to
amend earlier
if amendment proper, apply relation back (15(c))? – if
amendment allowed, will it relate back?
o Yes, if the relevant statute of limitations permits
relation back (15(c)(1)(A)) – if not,
 For amendments involving a new claim or defense,
does it arise out of same conduct, transaction or
occurrence set out in original pleading?
(15(c)(1)(B))
 For amendments involving a change of party, must
answer yes to each of the following questions in
15(c)(1)(C)
 Are requirements of 15(c)(1)(B) satisfied?
 Did the party to be added receive (within
120 days) such notice of the action that it
won’t be prejudiced in mounting a defense on
the merits?
 Did the party to be added know that, but for
a mistake concerning the identity of the
proper party, that the action would have
been brought against it?
o Did party know or should have known
that it was intended party in the
action?
o Was the failure to name the new party
due to a mistake?
JOINDER CHECKLIST
1. Is claim joinder permitted under the Rules?
a. General rule for claim joinder between parties already
adverse:
i. 18(a) PERMITS all claims between parties already
adverse
b. if A’s claim against party thtat has asserted claim
against A (coutnerclaim)
i. may be asserted as a counterclaim
ii. must be asserted as a counterclaim if it arises
out of the same T/O (compulsory – if fail to
assert, forever barred)
c. A’s claim against someone who has not asserted a claim
against A
i. If against adverse party, may be joined (18(a))
ii. If against a co-party, can be asserted as a cross
claim (13(g)) if it
1. Arises out of same T/O as original claim or
a counterclaim; or
2. Asserts that party against whom it is
asserted may be liable to A for all or part
of claim against A
3. A has already asserted a claim against the
co-party (in which case, they are adverse
and 18(a) permits joinder of any claims they
may have against each other)
iii. If against third party (not yet a party to
lawsuit), may be asserted via Rule 14 impleader
if (note: cannot implead parties who are already
in the suit!)
1. A is Defendant
2. A’s claim asserts derivative liability
against the third party (not alternative
liability)
iv. If against a third party D (already party to
lawsuit), and A is the P, then A may assert claim
if it arises out of same T/O
v. If against P, and A is third party D, then A may
assert claim if it arises out of same T/O
2. Is party joinder permitted under the Rules? – JOINDER RULES
APPLY AT ALL POINTS OF LITIGATION, not just after amending
a. Joinder of Defendants – is P asserting against
multiple D’s claims arising out of same T/O and
involving CQLF? – Rule 20(a)
b. Joinder of plaintiffs – are Ps asserting claims
arising out of same T/O and involving CQLF? – Rule
20(a)
c. Joinder of non-parties by party D – Rule 14 allows Ds
to joins third parties if they assert derivative
liability against third party
d. Joinder by non-parites, as Ps or Ds – intervention
under Rule 24 permissible if:
i. Under 24(a)(2), non-party has a right (as a
matter of law) to intervene if:
1. Non-party has an interest in action;
2. Disposition of action would impair nonparty’s ability to protect interest; and
3. Non-party’s interest is not adequately
protected by existing parties
ii. Under 24(b), non[arty may be permitted to
intervene, at court’s discretion, if non-party’s
claim or defense and the main action have a CQLF
1. Restraint on court’s discretion: often
disfavor allowing new parties in where
inefficient, lengthens (requests for
permissive intervention usually denied)
3. Is party joinder required under the Rules?
a. The “absentee” is a “necessary party” if any of the
following is true:
i. In their absence, court unable to afford complete
relief among existing parties, or
ii. Disposition of the action in their absence would
impair their ability to protect their claimed
interest in subject matter of the action, or
iii. Disposition of the action in their absence would
expose existing parties to substantial risk of
incurring multiple or inconsistent obligations
b. If the absentee is a “necessary party,” proceed to
feasibility analysis to determine whether joinder is
feasible…
c. feasibility of joinder: court will consider –
i. can prejudice be lessened or avoided through
shaping of relief or other measures?
ii. Will judgment rendered in absentee’s absence be
adequate from P’s perspective?
iii. If action is dismissed, would P lack an adequate
remedy elsewhere?
iv. “yes” answer to these factors suggests action
should not be dismissed
d. if joinder of a necessary party is feasible, then it
is required; if not feasible, then court considers
whether to dismiss the action
SUMMARY JUDGMENT CHECKLIST
1. general standard
a. the court can enter summary judgment (and thus take
the case away from a jury) only if there is nothing
for the jury to decide, because no reasonable jury
could fail to find for the moving party…in applying
this standard, court must:
i. view the evidence in light most favorable to nonmoving party
ii. make all reasonable inferences in that party’s
favor, and
iii. resolve all credibility issues in favor of the
non-moving party
b. does the moving party bear the burden of proof on the
issue at trial?
i. Yes; if so, the moving party must present the
court with sufficient evidence in support of each
element, that no reasonable jury could fail to
find for the moving party
ii. No; the moving party need only show that no
genuine issue of material fact exists as to an
issue on which the non-moving party bears the
burden of proof at trial (Celotex)
c. Satisfying the non-moving party’s burden of proof:
i. Evidence – has the non-moving party supported
each element of its claim or defense with
admissible evidence?
1. The moving party’s initial burden can be met
either by presenting factual evidence, or
simply pointing to the lack of evidence
supporting the non-moving party’s position
(Celotex)
2. Once this is done, the non-moving party has
the burden of persuasion, and must support
each element with sufficient evidence to
support a reasonable jury finding in its
favor
a. If the non-moving party fails to do so,
summary judgment should be granted
b. Otherwise, need to proceed to the next
question
ii. Ways to get summary judgment even if the nonmoving party presents evidence on each element
1. Evidence is not persuasive, or fails to
disprove alternate, more reasonable
explanations of D’s challenged conduct
(Matsushita)
2. Evidence fails to meet a heightened
evidentiary standard that would apply at
trial (Liberty Lobby)
2. when the moving party bears the burden of proof on the
issue at trial
3. satisfying the non-moving party’s burden of proof
JMOL and NEW TRIAL CHECKLIST
1. should the court enter JMOL?
a. Timing: can JMOL be entered at this time? – only if
i. Party against whom JMOL is sought has been fully
heard (e.g. has completely presented its case)
and case has not yet been submitted to jury (this
motion is DV) OR
ii. Case was submitted to jury, jury has rendered a
verdict, moving party sought DV before case went
to jury and the earlier motion is now being
renewed (JNOW motion only if you sought DV
earlier)
b. Appropriateness of JMOL – depends on the level of
evidentiary support the non-moving party has
offered…appropriate if:
i. Non-movant has presented no evidence on an
essential element of their claim, or
ii. The evidence and permissible inferences point
overwhelmingly in moving party’s favor, such that
reasonable jurors could not arrive at a contrary
verdict
1. *note: as with SJ, court must view evidence
in light most favorable to non-moving party,
and must resolve all credibility issues in
favor of the non-moving party
c. can the court grant a new trial?
i. Was the motion filed within 10 days after entry
of Judgment?
ii. Are there grounds for new trial?
1. Court may grant new trial if:
a. Reversible legal error, OR
b. Jury verdict was against the great
weight of the evidence, OR
c. The verdict was grossly excessive (in
which case, the Court may lower the
award using remititur, coupled with a
conditional denial of new trial), OR
d. There is new evidence that could not
have been discovered earlier through
due diligence, and is material (i.e.
likely to have affected the result), OR
e. There was improper jury influence