I.
Introduction a.
The Scope and Function of Civil Procedure i.
Civil procedure is a course that covers rules governing how courts resolve disputes and how litigants behave ii.
What are the mechanisms at play?
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
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Looking at rules on three levels o Doctrinal level o Tactical level o Policy level/theory
civil procedure is about choices
Operate in the legal system
1.
Civil means not criminal and not involving an administrative agencies (Social Security example)
2.
Also reflects the public nature of dispute resolution (not alternative dispute resolution) iii.
Procedure is the framework through with substantive law operates iv.
Need a mechanism to enforce the rule of law. The rule of law ideal requires society to have 3 features:
1.
Rules and norms that regulate rules and behaviors
2.
Institutions regulating rules and norms
3.
Procedures that ensure institutions operate fairly v.
Civil adjudication requires the court to perform four functions
1.
Determine the legal principles that bear on the case
2.
Find the facts that are relevant to these legal principles
3.
Apply the law to the facts to arrive at a decision
4.
Provide a remedy when appropriate vi.
Why do we have FRCP? (What are the purposes of each rule? Want standard- Look at yrs of cases)
1.
Desire of uniformity for how judges assign cases
2.
Fear of arbitrary behavior
3.
Ensure fair outcome through FRCP- limit judge’s discretion
4.
Content of substance and procedure affect/influence each other vii.
FIRST look to FRCP, then Constitution, Statutes, Case Law, Local Rules, Custom, Orders b.
Rule 1: Scope and Purpose: Just, speedy, and inexpensive determination of every action and proceedings.
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Just: Distributive- remedy inequality, right v wrong result, accuracy, impartiality, equality

Speedy: Reduces cost, return litigants/judges to more productive suits, could be too quick

Inexpensive: To taxpayers (courts), parties (D &P), transaction costs, error costs, opportunity costs

Also efficiency, truth, dignity, impartiality c.
How Much Process is Due?
When is too much or too little? Values tell us how to write rules i.
Constitutional Amendments: 5 th Amendment is federal due process and 14th holds the states to due process: 1. Notice 2. Opportunity to be heard 3. Neutral Decision Maker (procedure is just & process is good) ii.
Goldberg v. Kelly, 1970: *High water mark of due process, next rolls back to less

Who should bear the risk of mistake by a judicial decision maker? How do you construct procedures to counteract errors? Shift error cost- Which mistakes are better?
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POLICY ISSUE at core: RISK ALLOCATION, COST/BENEFITS, JUSTICE
1 st Justice: Better to pay ppl that don’t deserve it than cut off ppl who do (state pay)
2 nd Justice (Dissent): Screw the innocent, protect the taxpayer (spend more $$ on judicial resources, takes more money away from those that need it)
 Justice, Risk allocation, Allocation of cost and benefits of diff procedural choices

More robust procedures may create:
A. Worse substantive law (Substance & procedure interact)
B. Behavior will change- strategic, may react in a way that might undermine change

II.
 Due Process minimum procedural requirements/safeguards:
1. Opportunity to be heard at a meaningful time and in a meaningful manner
2. Timely and adequate notice detailing reasons for a proposed termination
3. Effective opportunity to defend by confronting adverse witness & presenting own arguments & evidence orally

TERMINATION of relief should come AFTER FAIR HEARING harder to win to get back then when have - ppl might not show up bcuz need food, may not be able to present case well

Causes frustration and low chances of getting/winning a fair hearing to seek redress
 HOW procedures affect outcome of lawsuit? More effective DP before termination
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HOW procedure alter effectiveness of substantive rights?
How welfare regime would work most effectively
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HOW procedure allocate risks and costs of litigation among parties?
Better to force taxpayers to subsidize ppl who might not deserve it
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HOW procedures can differentiate in parties based on wealth and resources?
Can’t evaluate procedure w/o looking at who it affects (diff in diff context) iii.
Connecticut v. Doehr, 1991

(kite fight, attachment to the house) Procedural choices are a cost benefit: When the risk of erroneous deprivation is too high, ex parte attachment of property without notice is a violation of the 14th amendment's Due Process Clause- need preattachment hearing at least
(sometimes lack of notice is tolerable if terrible toxins to public tho)

Think about ALL relevant variables (besides just party in Goldberg- more rigorous):
1. Consideration of the private interest that will be affected
2. Examination of risk of erroneous deprivation through procedures & value of alternative safeguards
3. Attention to interest of party seeking remedy & government interest
 Fora/judge shopping: Find most fav to argue in front of
Pleading a.
Introduction i.
Rules in Pleading: 2,3,7(a,b), 8(a-e), 9(b) 10, 11, 12 (b)(6), 15, 55(a), 84 ii.
A case is commenced by filing a complaint with the court (Rule 3) in a civil action form (2) iii.
10: Technical Requirements iv.
12b6: Motion to Dismiss, Failure to State a Claim v.
55a: Default if failure to plead vi.
84: Forms illustrate simplicity & brevity required vii.
Forms: 1, 2, 11, 19 viii.
GOALS: Basic notions of fairness, and the need for a well-run trial, demand at a minimum that each party notify the court and the other parties about the nature of the legal and factual claims that the party will assert at trial- facilitating resolution of claim on merits- narrow claim, frame issues, don’t want frivolous claims, easy to bring the case, but P do more to stay involved, client not hurt for lawyer’s mistake b.
Rule 7- 7 types of Pleadings allowed, requests for a court must be made in writing unless made during hearing or trial, state grounds for seeking order and what relief is sought c.
Rule 8 – General Rules of Pleading; (a)- Claim for Relief: “short and plain statement” showing pleader entitled to relief, stating jurisdiction, and a demand for relief sought (not prove but outline claim)
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History: emerges from formal jury common law & flexible judge equity
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Issue Pleading: Narrow sense to single issue to resolve
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Then: Fact pleading: Provide significant detail- quick disposition of sham claims & defenses
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Now: Notice pleading (to D): notice w/minimal detail (easier, potentially more cases brought)
Risk Adverse (Write long vs. write short)—Frames the case

d.
The Sufficiency of the Complaint Rule 8(a)(2)SHOWING P entitled to relief (ambiguous/subjective)
(actually plead vs. imaginably provable) or formal insufficiency (technical) v. substance insuff
Actually Plead: Read complaint: Would claim be plead if actually true?
Only in complaint- see if enough there, have to plead every element of case- more detailed than short and plain
Imaginably provable: Read complaint: Can ct imagine a set of facts whether in it or not?
Go beyond complaint, allows P to make basic allegations as long as ct creative, don’t need to show, as long as can be conceived i.
Conley v. Gibson, 1957 RULE 8(a) (2 Tests: Fair notice & no set of facts)
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(Union railway did nothing to protect the African-American employees against discrimination bcuz they were discharged and whites took their places)
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A complaint should NOT be dismissed for failure to state a claim unless it appears beyond doubt that the P can prove NO SET OF FACTS to support his claim- not heightened pleading standard- don’t need to be in complaint as long as could be there (overruled tho)
 “Pleading should not be a game of skill” in which one misstep by counsel may be decisive to the outcome & accept the principle that the purpose of pleading is to facilitate a proper decision on the merits
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Complaints must at least give FAIR NOTICE PLEADING “showing” 8(a)(2) ii.
Swierkiewic v. Sorema, 2002
 (age or nationality discrimination) the complaint must include only "a short and plain statement of the claim showing that the pleader is entitled to relief”
 A prima facie case is NOT required in order to survive a motion to dismiss in an employment discrimination case. Rule 8 (a)(2) is the default- don’t need more specific facts than that
(Discovery can do that)

Upholds Conley & finds that the FRCP suggests a relaxed standard for pleadings- low bar
 Evidence can’t be listed in pleading if can’t be found until discovery iii.
Dura Pharmaceuticals v. Broudo, 2005
 The “short and plain statement” 8(a)(2) must provide the defendant with “fair notice of what the plaintiff's claim is and the grounds upon which it rests”- not valid legal theory
 There must be established some proximate causation between the D’s actions & economic losses asserted- never mentioned economic loss- only those who lose $$ have claim
 Applies specific requirements under securities laws, harkens to Rule 9b, which requires the circumstances of fraud to be held with particularity. In particular, PSLRA modifies, requires condition of mind pled with particularity. Forces to plead what already know- not omit facts
 P’s said nothing about key element, so don’t spend $$ on discovery for that e.
Plausibility – Twombly and Iqbal i.
Bell Atlantic Corp. v. Twombly, 2007
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(antitrust in telephone companies) Court adopts the plausible possibility within the complaint to reasonably expect that discovery will yield more. Imaginably provable rule is dead
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The case needs to be plausible on its face, and cross the line from conceivable to plausible.
 Twombly rejected the “set of facts” test as a way to judge the sufficiency of a complaint’s notice AND it imposed a seemingly more stringent “plausibility” test to judge the sufficiency of a complaint’s substance- raises bar for anti-trust cases
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Plausibility requires more than labels, IGNORES conclusions of laws & a listing of legal elements to a claim; only looks at factual allegations must be enough to raise a right to relief beyond speculation.
 Ps facts must prove a plausible claim (not possible) - Enough facts must be pled to raise a reasonable expectation that discovery will reveal evidence- new minimum pleading standard

Judge uses common sense & experience to assess plausibility

 (Pleading should not be a game of skill, requiring that D a least be put on notice still required)
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Dissent: What does “showing” mean? There is a spectrum in pleading between assert and prove. In this case, the majority is closer to prove and the dissent is closer to assert- Not concerned w whether P will prove his case, just if he could
 Don’t need to plead ALL facts to prove claim, but “factual enhancement”
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Which error better? Better to dismiss than to allow it to go forward (normally allow go forward) ii.
Ashcroft v. Iqbal, 2009
 This is a problem of both substantive and formal sufficiency. Conclusions are insufficient, details not required but factual enhancement is, reasonable expectation that discovery will be held, plausibility of details, not just mere allegations to allegations remaining
(can be teased out in Twombly, but increased P’s burden here)
1.
Must also show how he can get relief
2.
He would also have to plead that Ashcroft and Mueller had a discriminatory purpose - how do you find that without discovery- increased P standard, but only for cases where P can’t be expected to know what need to know
8e: Pleadings must be construed to do justice (to who? P/D) f.
Rule 9 – Heighten Pleading Standard
 b: If pleading Fraud or Mistake , must state with particularity the circumstances: who, what, when, where, actions/causation (not sure how particular, but more detail than in Rule 8 & Twiqbal )

Fraud is easy to claim, but hard to prove, so increase standard
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Conditions of the mind not have to be pled specifically except with Dura & securities laws g.
Rule 8(b) Defenses; Admissions and Denials
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A party must state in short and plain terms its defenses
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& admit or deny the allegations asserted by opposing party
 King Vision v. JC Dimitri’s, 1998 –
Rule 8 violation- Answers may only admit or deny allegations
(8b2-6)
-8a5: if lack knowledge, denial
-Allegations not denied are admitted (8b6)- If don’t, then admittance
(Deter for future, but could relax bcuz don’t punish client for lawyer’s mistake)
If don’t have info, state that & acts as a denial
 Must admit or deny everything. If don’t admit, deny or disclaim, you have admitted it (8b6)
1.
Complications that arise when you implement Rule 8 (b): a.
If you deny everything, you might be violating rule 8 b.
If you admit everything, you might overly admit
2.
8 c Affirmative Defense: (D has burden to raise- avoids rather than deny info) a.
Even though Rule 8(c) is silent on the consequences, the standard view is that you have to plead an affirmative defense or you lose it. It avoids the admit or deny, it gives you an avoidance b.
Defenses are not exclusive; failure to plead in answer, are waived c.
Twiqbal applies to affirmative defenses as well as pleadings- plausibility (but some courts disagree but this is Majority view Racick v. Dominion Law
Associates, 2010 (billing the wrong Louis Racick- affirm defense fail to include factual detail may be stricken under Rule 12 (f)- equally apply same require in consideration of fairness, common sense & litigation
(P SHOW a claim, D state a defense? increased standard? expensive litigation & discovery, show why pleading & defense are diff- time limited so just state) h.
Rule 8(d): Claims:
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Simple & concise allegations

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May include hypos/alternate conflicting statements
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May state as many separate claims or defenses as possible, regardless of inconsistency
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A party may join any and all claims against any opposing party (18)
 Joinder of claims is never compulsory
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But, claims related to the same issues or transactions may be barred by res judicata
 (Serve within 120 days of filing, 4 months or may be dismissed) i.
Defendant’s Response to a Claim Rule 12/8 i.
what defendants must do to respond:
1.
MOTION Rule 12 within 21 days of service
(not a pleading, asking ct for something)
2.
Or Answer (Rule 8 requirements, are pleadings) within 21 days of service
It must “admit or deny the allegations” or disclaim in the complaint- respond
(If you don’t deny, you admit- don’t argue back becuz that’s admitting)
It must state “in short and plain terms its defenses”
-Can MOTION and then ANSWER if motions denied- CAN DO BOTH ii.
With the exception of Rule 12(b)(6), none of the Rule 12(b) defenses goes to the merits of the case
1.
A judge can grant a Rule 12(b) motion with (can’t amend) or without prejudice
2.
Difference between a 12(b) defense versus a 12(b) motion a.
Historically, you could either raise a 12b defense or file an answer motion. Now you can do both- if motion loses, still defense. ( can raise defenses in answer too or motion )
3.
Why would you file a motion versus just putting a 12b defense in the answer? Filing a motion has the potential to get the case dismissed (then don’t have to answer or admit or postpones it and can narrow issues potentially) a.
Filing a motion could: i.
Cause delay - friend of the defense ii.
Cost the plaintiff money and time iii.
Probe for weakness in the plaintiff's case b.
Reasons to not file a motion: i.
Maybe speed is good (PR disaster) ii.
Insufficient notice iii.
For Rule 12(b)(6) motions for failure to state a claim, courts must accept as true all plausibly pleaded factual assertions, although they need not accept unbelievable assertions or legal conclusions. iv.
The Rule 12(c) motion is the plaintiff’s equivalent to the Rule 12(b)(6) motion – a plaintiff may believe that the defendant’s answer, when coupled with the complaint, proves the plaintiff’s entitlement to a favorable judgment. v.
Rule 12 (f) Motion to Strike Ps complaints thinly alleged bcuz waste of time striking when might not state later- Normally not granted, & Ps are given leave to amend prior to striking pleadings, may have motion to leave to seek to amend answers j.
Rule 15: Amending a Pleading: How the FRCP Cope with Mistakes and New Discoveries i.
The pleading amendment process addresses two concerns (rule 15)
1.
If we allow a pleader to amend deficient pleadings, potential pitfalls can be avoided
2.
The pretrial process sometimes uncovers facts that suggest additional claims or defense ii.
When denying leave: Undue prejudice or futility (not survive sum judgment anyway) iii.
Williams v. Citigroup Inc, 2011
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(airline facility bonds) Rule 15 sets a permissive standard to amend pleadings when justice so requires and does not end when final judgment is entered- ct should freely give leave to amend a complaint, ct needs justifying reason to DENY leave for amend- no harm, no foul

 Party may amend pleadings even post-judgment when justice requires it- 60- (Forman)- finality does not always foreclose the possibility of amendment iv.
Courts wrestling with the tension between “easy amendment”- liberally allowed- of Rule 15(a) and the “Strict deadline” of Rule 16(b) have tended to say that the standard of Rule 15(a) applies to an amendment requested within the Rule 16(b) deadline; if it is sought after the deadline, the amendment must satisfy both the Rule 15(a) and the Rule 16(b) standards.
RELATION BACK Rule 15 c- limits the amount of amending possible & says it’s okay to change even if statute of limitations runs (15c transaction/occurrence broader than 13a) v.
Trans v. Alphonse Hotel Corp., 2002

(fair labor standards of underpayment w new claim of bribery and RICO not allowed) In utilizing the "Relates back" language (Rule 15 (c ) relates back - if the amendment relates back to the original complaint, then the amendment can include based on the originally timeliness of the primary complaint) to amend a pleading, the amendment must be germane to the original pleading and not introduce a new factual allegation
 To relate back, original pleading MUST have alleged facts that would put the D’s on notice that the conduct added through amendment may have been at issue

New legal theories based on same facts generally acceptable

New factual allegations that fundamentally change the nature of allegations can NOT relate back
 Mayle: Claims added MUST arise from the same core facts, NOT separate episodes or events

Encourages lawyers to be diligent w/finding facts k.
Truth, Diligence, and Sanctions/Policing Pleadings and Motions i.
Rule 11 – Signing Pleadings, Motions, and Other Papers; Representations to the Court;
Sanctions (only for pleadings, not discovery, responses, objections, or 26-37 motions, 26g has
Sanctions for discovery)
 Threat of sanctions keeps lawyers in line- (maybe not notify other party or want money to file frivolous suit) how productive on top of own incentives- more billable hours
 Must have done a REASONABLE INQUIRY to support what is filed- 11b

11b3: Adequate factual investigation
 Limited duty to investigate: Narrow: Adversarial: Truth emerges throughout- Conley: discovery figures it out, costs balloon otherwise- can’t ignore slimy truth tho, only worry for fraud- maybe didn’t know, but mostly just paying $$ to investigate truthful ppl otherwise, wouldn’t file case normally, no reason to trust tho if don’t know- contingency fee tho?
-Could the other side have EASILY discovered this? If so, should have investigated it

Expansive duty: Efficiency to weed out frivolous claims- Twiqbal- lawyers obligated to help system along w more investigation

Safe harbor rule: 11c2- motion for 11b sanctionable conduct served to other lawyer, given 21 days safe harbor rule to change it before sanction

Adversarial or sua sponte motion?
ii.
Patsy’s Brand Inc. v. IOB Realty, Inc., 2002
 (pasta sauce label- new lawyers, should have done more reasonably inquiry/investigation bcuz knew lied before in affidavit- suspect fraud) Lawyers must use an objective standard when assessing the truthfulness of their client's assertions AUTHORITY SPLIT -
MAJORITY IS UNREASONABLE STANDARD/OBJECTIVE (could lawyer reasonably rely on info) AND MINORITY IS BAD FAITH/SUBJECTIVE (purposefully ignored slimy things)- not just lawyer liable, but firm too iii.
Pennie & Edmonds, LLP, 2003

 When a sua sponte Rule 11 sanction denies a lawyer the opportunity to withdraw the challenged document pursuant to the safe harbor rule , the appropriate standard is subjective bad faith actions not objective unreasonableness (since no safe harbor of 11c2)
III.
Joinder of Claims and Parties (Defining the Scope of a Case) a.
Introduction i.
Two types of joinder
1.
Claim joinder - adding more topics
2.
Party joinder - adding more parties, plaintiffs, defendants etc ii.
RULES: 8(a), 8(d)(2) 13,14(a-b), 16(c)(2)(m) 18(a), 19, 20(a, b), 21, 24, 42, 54(b), 83(b) iii.
Rule 8(a): Claim for relief can be found in answer (counterclaim)- same as claim but other party iv.
8d2: Allows D to assert as many defenses to P’s claims- broad ability mirror image P to join claims v.
Persons must be afforded notice and an opportunity to be heard when a court takes action affecting their legal interests. The usual way in which that opportunity to be heard is given effect is by means of JOINING the affected person as a party in the case.(Can’t be deprived of legal rights if not party) vi.
Important to ask, who controls the case? The plaintiff? The courts? The parties jointly?
vii.
A basic principle of modern joinder is “transactionalism” – that is, it should be possible to join in a single case all of the legal theories and persons involved in a transaction or occurrence.
1.
Why would you join transactionally related claims? a.
If a client has two transactionally related claims but doesn’t file one, they lose the ability to file it in a separate case b.
If you have more related claims, you have more related claims c.
The weak claim could ride the coattails of the strong claim d.
Efficiency: Less expensive, less time consuming e.
More claims = more chances to win
2.
But you might not want to: a.
because, the strong claim might be diluted by the weak claim b.
You could also recover more if the cases were argued together or separately c.
Might split your claim due to better jurisdiction in a case for one claim d.
Jurisdiction problems (claims must have subject matter/personal jurisdiction) e.
Confusing the jury? Does that help or hurt? f.
More expensive for D- may settle viii.
Joinder and subject matter jurisdiction are separate requirements but both must be satisfied for a joinder claim or party to be heard in federal court ix.
Sometimes:
1.
You must seek joinder
2.
You may seek joinder
3.
You cannot seek joinder b.
Claim Joinder i.
Multiple Claims by a Single Plaintiff Against a Single Defendant
1.
Rule 18: Joinder of Claims (Once in, can assert any unrelated claims as want) a.
(a) In General. A party asserting a claim, counterclaim, crossclaim, or third-party claim may join, as independent or alternative claims, as many claims as it has against an opposing party. ii.
Counterclaims by the Defendant Against the Plaintiff
1.
Rule 13: Counterclaims and Crossclaim (later) (Painter v Harvey below)
(a) Compulsory Counterclaim (must assert in this case, cannot sue separately- use it or lose it- part of answer, ONLY compulsory, prevent litigation of same set of facts)

1. In General. A pleading must state as a counter claim any claim that – at the time of its service – the pleader has against an opposing party if the claim:
(A) arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim; and (*like Rule 15, but more narrow here)
(B) does not require adding another party over whom the court cannot require jurisdiction
IMPERICAL/THEORETICAL TEST: How big is overlap of facts relevant to claim make it one? More: Comp, Less: perm
(2) Exceptions.
The pleader need not state the claim if:
(A) when the action was commenced, the claim was the subject of another pleading action; or
(B) the opposing party sued on its claim by attachment or other process that did not establish personal jurisdiction over the pleader… a.
(b) Permissive Counterclaim . A pleading may state as a counterclaim against an opposing party any claim that is not compulsory. **ANY CLAIM
UNRELATED- NOT SAME TRANSACTION- can sue separately if want b.
(c) Relief Sought in a Counterclaim. A counterclaim need not diminish or defeat the recovery sought by the opposing party. It may request relief that exceeds in amount or differs in kind from the relief sought by the opposing party. c.
(e.) Counterclaim Maturing or Acquired After Pleading. The court may permit a party to file a supplemental pleading asserting a counterclaim that matured or was acquired by the party after serving an earlier pleading. iii.
Painter v. Harvey, 1988
(woman accused police officer of rape; he counterclaimed for libel and defamation. He won- suing can be worse than losing, owe money)
1.
If the defendant has a counterclaim that wouldn’t ordinary have jurisdiction in fed court, it can be heard if the counterclaim is compulsory not if it is permissive a.
Compulsory - Rule 13 (a) in the same transaction or occurrence of the original claim it is compulsory (now or never), if permissive can be now or later b.
Judicial gloss to the Rule 13 (a) i.
Four part Sue & Sam test to determine if compulsory (more of a guideline to preserve flexibility for the ct and the third part is the most important, 4 is the second most, want yes for comp)
1.
Are the issues of fact and law for the claim and counterclaim largely the same?
2.
Would res judiciata bar a subsequent claim?
3.
Will substantially the same evidence be used?***
4.
Is there a logical relationship between the claim and counterclaim? c.
Party Joinder i.
Permissive Joinder (20 & 14)
Permissive joinder places the decision about which parties to include in a case in the hands of each person asserting a claim
1.
Rule 20 Permissive Joinder of Parties (Initial, Ps sue together)
PURPOSE: Promote trial convenience & expedite resolution of disputes, eliminating unnecessary lawsuits

a.
(a) Persons who May Join or Be Joined i.
1. Plaintiffs . Persons may join in one action as plaintiffs if:
1.
(A) they assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and
2.
(B) any question of law or fact common to all plaintiffs will arise in the action. ii.
2.
Defendants . Persons may be joined in one action as defendants if:
1.
(A) any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences ; and
2.
(B) any question of law or fact common to all defendants will arise in the action. iii.
3. Extent of Relief . Neither a plaintiff nor a defendant need be interested in obtaining or defending against all the relief demanded. The court may grant summary judgment to one or more plaintiffs according to their rights , and against one or more defendants according to their liabilities.
Alexander v. Fulton County, 2000

(race discrimination – joining many plaintiffs, yes okay)

Plaintiffs can have distinct injuries and still be able to join under Rule 20 if those injuries happen due to the same transaction and rely on some of the same question of law or fact.
(Rule 20 (a)(2) series of transaction or occurrence)

Had same pattern/practice of race-based discrimination- same series of transactions by same decision maker at same dept in same time frame

Rule 13 informs meaning of Rule 20: LOGICAL RELATIONSHIP Test has a flexible meaning of same transaction/occurrence- BROAD scope of action/fairness
2.
Rule 14. Third Party Practice (By them or against them, indemnification, impleader) (Look at Lehman below) (read broadly- Lasa>)
-D can’t use “empty chair defense” to blame a party not there, bcuz should implead them a.
When Defending Party May Bring in a Third Party
1. Timing (D, as third party P may serve a NON party liable for all or part )
2. 3 rd Party Defendant’s claims and defenses (MUST assert counterclaim against 3 rd party P & may bring other claims)
3. Plaintiff’s Claims Against a Third-Party Defendant
4. Motion to Strike, Sever, Or Try Separately
5. Third-Party Defendant’s Claim Against a Nonparty (for all or part)
6. Third Party Complaint in Rem b.
When a Plaintiff May bring in a Third Party (When claim asserted against P)
3.
Rule 13. Counterclaim and Crossclaim
(h) Joining Additional Parties.
Rules 19 and 20 govern the addition of a person as a party to a counterclaim or crossclaim (Mostly applied to defendants or interveners) ***Entirely new party unrelated to original claim
4.
Lehman v. Revolution Portfolio LLC, 1999

(financial transaction guaranteeing a Trust)

Lehman sued bank (FDIC) for default, and FDIC impleaded Roffman for fraud under
Rule 14a AND then joined another claim against Roff under Rule 18a bcuz doesn’t

require add’l claims to be transactionally related. Once FDIC asserted 3 rd party complaint, it can join ANY other claims- Roff should have argued 3 rd party complaint improper. IF ^ doesn’t work & FDIC counter claimed back to Lehman, Lehman could use 13(h) to bring in Roffman.

As long as a third-party action falls within the general contours outlined by Rule
14(a), does not contravene customary jurisdictional and venue restrictions, and will not work unfair prejudice, a district court should not preclude its prosecution ii.
Involuntary Joinder
1.
Rule 19. Required Joinder of Parties (DEFENSE Rule of D- either want omitted party brought in or want dismiss by saying indispensable without party- Plaintiff loses master of the suit rule – court is in charge, BALANCE- Required parties may not always be indispensible)NOTE YOU USE 12b7 WHEN DISMISSING FOR FAILING TO JOIN A
RULE19 PARTY (Makah Indian Tribe below) a.
Persons Required to be Joined if Feasible
1. Required Party . A person who is subject to service of process and who joinder will not deprive the court of subject matter jurisdiction must be joined as a party if:
(A) in that person’s absence , the court cannot accord complete relief among existing parties; or (protects P)
(B) that person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person’s absence may: (legally protected interest) (diff than 24)
(i) as a practical matter impair or impede the person’s ability to protect the interest; or (Protects 3 rd party)
(ii) leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the interest (protects D)
2. Joinder by Court Order
3. Venue b.
(b) When Joinder is not Feasible . If a person who is required to be joined if feasible cannot be joined, the court must determine whether, in equity and good conscience , the action should proceed among the existing parties or should be dismissed . The factors for the court to consider include (BROAD)
1. The extent to which a judgment rendered in the person’s absence might prejudice that person or the existing parties;
2. The extent to which any prejudice could be lessened or avoided by
(mitigating it)
A. protective provisions in the judgment;
B. shaping the relief; or
C. other measures
3. Whether a judgment rendered in the person’s absence would be adequate ; and
4. Whether the plaintiff would have an adequate remedy if the action were dismissed for nonjoinder.(Alternative forum) c.
Pleading the Reason for Nonjoinder . When asserting a claim for relief, a party must state:
1. The name, if know, of any person who is required to be joined if feasible but is not joined and
2. The reasons for not joining that person

d.
Exception for Class Action – Rule 23
2.
Makah Indian Tribe v. Verity, 1990

(fish allocation, 23 tribes, not enough fish for all, can’t make decision w/o other tribes tho bcuz may cases and not fair to re allocate quotas w/o other tribes- legally protected interests impaired so case dismissed)

First determine if a party is necessary & then if it is indispensable

Indispensable: 1 &2 for dismissal, 3 &4 for keep but DISMISSED

If a party is indispensible, there is high prejudice to leave them out. If the indispensible party is has sovereign immunity such as tribes, there may be no remedy for plaintiff because the court cannot compel them to join. Lack of alternative forum does not automatically prevent dismissal of suit. iii.
Intervention & Amicus Curiae
1.
Rule 24. Intervention a.
Intervention of Right. (COURT HAS NO CHOICE) On timely motion, the court must permit anyone to intervene who: **Grutter case below
1. Is given an unconditional right to intervene by a federal statute or
2. 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 matter impair or impede the movant’s ability to protect its interest , unless existing parties adequately represent that interest
(Wording similar to Rule 19a1B but diff w interest & impair- easier to intervene than require to be invited- less complications if volunteer) b.
Permissive Joinder. (COURT HAS DISCRETION)
1. In General. On timely motion, the court may permit anyone to intervene who:
A. is given a conditional right to intervene by a federal statute; or
B. has a claim or defense that shares with the main action a common question of law or fact.
2. By a Government Officer or Agency. On timely motion, the court may permit a federal agency or state governmental officer or agency to intervene if a party’s claim or defense is based on:
A. a statute or executive order administered by the officer or agency; or
B. any regulation, order, requirement, or agreement issued or made under the statute or executive order.
3. Delay or Prejudice. In exercising its discretion, the court must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties’ rights. c.
Notice and Pleading Required.
A motion to intervene must be served on the parties as provided in Rule 5. The motion must state the grounds for intervention and be accompanied by a pleading that sets out the claim or defense for which intervention is sought.
2.
Grutter v. Bollinger, 1999 * 24 intervention of right
(U of Mich. Race discrimination in admissions- white students not get in & wants to sue
U. other groups want to intervene on D- parties allowed to intervene) a.
The proposed interveners must establish four elements in order to be entitled to intervene as a matter of right:
1) that the motion to intervene was timely;

2) that they have a substantial legal interest in the subject matter of the case; **24 just says interest, but implied substantial (doesn’t need to be a legally protected interest, but fact-specific)
3) that their ability to protect that interest may be impaired in the absence of intervention; and (effect interest in educational opp & diminish obtaining admission)
4) That the parties already before the court may not adequately represent their interest. (not make all their arguments)
3.
Benefits of Intervention:
A.
Efficiency: Brings all claims together instead of separate
B.
Enhances accuracy: Decision maker makes better decisions w/more information
4.
Pitfalls of Intervention:
A.
Rule doesn’t acknowledge rights of interveners
B.
Maybe not benefit to make same point twice: representation already
5.
Litigants will fight over an intervener falls under 24a or 24b trying to get someone out of the case
6.
Rule 20 is protecting people from being joined against their will (more restrictive bcuz transactional nexus clause). Rule 24 joiners do not have those problems- protects outsiders a.
24 outsiders imposing costs on insiders & selves (expensive & time if don’t have interest) versus 20 insiders imposing costs on outsiders b.
Also systemic issues with rule 24. Intervention allows the court to ensure that its resources are properly dispensed
7.
Interveners may sometimes only been joined for a portion of the proceedings, such as depositions.
8.
Original parties may suffer from interveners: prejudice of intervention? costlier & slower
(v speedy & inexpensive), trier of fact swayed by emotions, base ruling on that, not law
9.
FRAP 29: Brief of an Amicus Curiae (alternative to intervention) a.
Given the value of amicus briefs, many times parties will line up people to submit the briefs and coordinate the issues in each brief b.
Adequate alternative to intervention? Not intervene in case, but can say
EVERYTHING in the brief- if can’t present evidence c.
Less technical than intervention, minimum burdens (unless a lot) & no continuing cost, virtually no rights tho d.
Gives more perspectives to the ct to avoid unintended consequences
10.
Can the potential intervener’s interest be properly protected and explained through an amicus brief? iv.
Cross-claims
1.
Rule 13 (Permissive: can bring separate litigation if want) a.
(g) Crossclaims Against a Coparty . A pleading mat state as a crossclaim any claim by one party against a coparty if the claim arises out of the transaction or occurrence that is the subject matter of the original action or of a counterclaim , or if the claim relates to any property that is the subject matter of the original action. The crossclaim may include a claim that the coparty is or may be liable to the crossclaimant for all or part of a claim asserted in the action against the crossclaimant. (Lasa: read broadly>)
2.
Tactical concerns about filing a crossclaim – angering the coparty (might be willing to settle w other party if don’t cross claim) but don’t want to lose a claim or be liable for the whole or part of the damage- crossclaim if worth a lot of money, high value?

3.
Crossclaims 1) are against coparties, 2) must be transactionally related; 3) have tactical/strategic questions and concerns
4.
Luyster v. Textron, Inc., 2010

(Draw out: small airplane crash. Sued various parts manufactures. One D of which joined federal air traffic controllers as third-party defendants (14). The other D then cross claimed against the Gov. Gov makes argument that 2nd D party to crossclaim for indemnity was not on the same level defense so could not work, must be a 3 rd party 14 complaint but already a party so 12b6 motion to dismiss. (same side, same level defense for co party- dif level so doesn’t count- REJECTED this approach)

It runs contrary to the purposes of Rules 13 and 14, and the mandate of Rule 1, to construe a lone reference in Rule 14(a) to limit the term "coparty" to the Narrow definition, when doing so would require multiple actions arising from the same set of facts or add unnecessary procedural steps- not efficient, bcuz it would create a gap.

Rule 14a says 3 rd party D may assert any crossclaim against another third party D under Rule 13g. Rule 14 does NOT state that these are the ONLY cross claims that a
3 rd party D may bring, and it does not state that it limits or defines scope of Rule 13g.

What does Co-Party mean? Not defined (What Framers intend?)

Broad Definition: Must be on same side, but can be on diff level (this wins- efficient)

Narrow Definition: Must be like status: On same side & same level (Gov says)

3 Groups of Entities (No Gap: All Fit)
14a1: Non-party indemnification (Gov not non)
13g: Co-party indemnification (Gov says not co-party bcuz diff level)
13a/b: Adverse party indemnification (Gov not bcuz not opposite)
(Did Framers create a gap? No & indemnification so imp, should be able to for Gov)
5.
LASA v. Alexander, 1969 (city of Memphis new town hall marble issue) The words
"transactions or occurrence" are given a broad and liberal interpretation in order to avoid a multiplicity of suits- logical relationship as opposed to immediateness. Read rules 13
&14 broadly v.
Consolidation, Separation, & Severance (Joinder makes it complicated, these are safety valves)
1.
Rule 13 a.
(i) Separate Trials. Separate Judgments . If the court orders separate trials under Rule 42(b)>, it may enter judgment on a counterclaim or crossclaim under Rule 54(b)> when it has jurisdiction to do so, even if the opposing party’s claims have been dismissed or otherwise resolved.
2.
Rule 42. Consolidation; Separate Trials a.
Consolidation.
If actions before the court involve a common question of law or fact, the court may: i.
1. Join for the hearing or trial any or all matters at issue in the actions; ii.
2. Consolidate the actions; or iii.
3. Issue any other orders to avoid unnecessary cost or delay b.
Separate Trials . For convenience, to avoid prejudice, or to expedite and economize , the court may order a separate trial of one or more separate issues, claims, crossclaims, counterclaims, or third-party claims. When ordering a separate trial, the court must preserve any federal right to a jury trial.
(Bifurcation: separate issues)
3.
Rule 20 a.
(b) Protective Measures. (Similar to 42b) The court may issue orders – including an order for separate trials – to protect a party against embarrassment,

delay, expense, or other prejudice that arises from including a person against whom the party asserts no claim and who asserts no claim against the party. b.
Phillip v. General Motors, 2002

Must conduct a “good cause” analysis to determine whether evidence can have a protective order. (not just trade secrets or other confidential research, can be other things as well)
4.
Rule 21. (Cut off part of a case) Misjoinder and Nonjoinder of Parties . Misjoinder of parties is not a ground for dismissing an action. On motion or on its own, the court may at any time, on just terms, add or drop a party. The court may also sever any claim against a party.
5.
Rule 54. (Sequencing) a.
(b) Judgment on Multiple Claims or Involving Multiple Parties . When an action presents more than one claim for relief – whether as a claim, counterclaim, crossclaim, or third-party claim – or when multiple parties are involved, the court may direct entry of a final judgment as to one or more, but fewer than all, claims or parties only if the court expressly determines that there is no just reason for delay. Otherwise, any order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties’ rights and liabilities.
6.
Rule 83. Rules by District Courts; Judges (Catch all)- Judge make any claims a.
(B) A judge may regulate practice in any manner consistent with federal law, rules adopted under 28 USC, and the district’s local rules. No Sanction or other disadvantage may be imposed for no compliance with any requirement not in federal law, federal rules, or the local rules unless the alleged violated has been furnished in the particular case with actual notice of the requirement. b.
Inherent judge power- can’t appeal what said during orders- or off record
7.
Rule 16 (c)(2)(m) (Pre Case MGMT- Scheduling) Ordering a separate trial under Rule
42(b) of a claim, counterclaim, crossclaim, third-party claim, or particular issue;
IV.
Discovery (Extracting information from Opposing Parties) a.
Purpose and Pitfalls of Discovery i.
RULES: 26, 29, 30, 31, 33, 34, 35, 36, 37, 45 ii.
The pretrial process of discovery gives the parties an opportunity to obtain the facts about what really happened, and to narrow the case down to the critical legal and factual disputes still dividing the party (Rule 11 require investigation not much info- limited resources to ppl) iii.
Balance test: Cost v Benefit/accuracy/importance: Fishing (wide net) - incentive to cast wide net to gets lots of evidence, but sweep in junk too v. Targeting (interfere) - tailored to get right info iv.
Narrow v. Broad info (Required Disclosures 26a, Discovery 30-36, 26 b Limits: show good cause, relevant to subject matter, not too narrowing) v.
Discovery Rules clash with Adversarial Norms: Natural instinct not to disclose vi.
Good lawyers always supplement formal discovery with information investigation. vii.
In designing a system of discovery, four issues are crucial:
1.
Scope: What type of information can, and cannot be obtained? (can’t hide info)
2.
Method: What specific devices are available to obtain information?
3.
Role: Who initiates requests for information?
4.
Enforcement: What happens if persons refuse to provide requested information, or ask for information to which they are not entitled? viii.
Why do we need discovery?

v.
vi.
vii.
viii.
i.
ii.
iii.
iv.
1.
Prepared: Thoughtful about the case (not trial by ambush)
2.
Accuracy: Account of what happened- more effective arguments
3.
Effective arguments & sequencing instead of chaotic
4.
Efficiency of time: judicial resources to hear more claims
5.
Deters frivolous suits ix.
Why do parties need information? Information serves three main purposes:
1.
Helps parties understand the case and get ready for settlement or trial
2.
Help prove or disprove contested facts- find patterns
3.
Can uncover new areas of dispute x.
Pitfalls of Expansive Discovery
1.
May deter meritous suits- invasive, lengthy, expensive
2.
Burdensome
3.
Needs to be a means to an end instead of an end
4.
Risk that judges can limit discovery based on discretion
b. Mechanisms of Discovery
1. Rule 26 Duty to Disclose; General Provisions Governing Discovery
(a) Required Disclosure
(b) Party Initiated Discovery Scope and Limits (broad standard)
(c) Protective Orders
(d) Timing and Sequence of Discovery
(e.) Supplementing Disclosures and Responses
(f) Conference of the Parties; Planning for Discovery
(g) Signing Disclosures and Discovery Requests, Responses and Objections
Discovery devices:
1.
Tactical questions for all devices a.
How likely is a particular device to yield certain information? (interrogatories) b.
Are the benefits worth the cost? (ex: depositions) c.
Sequencing concerns - docs vs. deps d.
Risks of particular discovery - will you make yourself look bad in front of the judge? If you go broad, they will too - who wins that dispute? Risk of defection of a détente e.
Multi round game
2.
Depositions (Oral: Rule 30) a.
During depos, a lawyer can object to a question but the witness has to answer in most cases i.
Depos can be better than a written interrogatory because you can change your line of questioning based on responses ii.
Less intervention from a lawyer - might get more info (not coach) iii.
You can video tape depos - you can play them at trial to impeach a witness (best way to get info normally) iv.
You lock the witness in v.
Convert them into a seminar on how the company work vi.
More interactive: ask follow-up questions to see if lying, struck a nerve vii.
Nonverbal cues, can wear a person out after how many hours viii.
Spontaneous, not filtered b.
Some problems i.
Expensive: court reporter, your time, travel, no judge ii.
Witnesses aren't required to prepare- could be waste of time
3.
Interrogatories (Rule 33)

a.
No spontaneity - well crafted b.
Unhelpful in soliciting subjective information c.
Helpful in getting objective information d.
Lock people into their stories e.
You can elicit specific facts f.
Relate back to pleading - help flesh out a vague pleading g.
Contention interrogatory h.
Useful to set up other discovery - could request the contact information or identification of a specific group people
4.
Request for documents and things (Rule 34) a.
Info regarding background info- give objects to me b.
Costly c.
Allows inspection of places d.
Interesting in light of technology- demand inspection xi.
Party-Initiated Discovery Devices (Rule 26b Scope)
1.
Depositions (rules 30-32) a.
During a deposition, a lawyer must object to a question if s/he would like it to be excluded at trial. The witness must answer and a judge will decide later about its status. Cannot object to a question from a depo after it occurs b.
The best questions are the ones where you don’t care what the answer is
*because you caught them in a lie
2.
Interrogatories (Rule 33)
3.
Requests for production of documents and tangible things or inspection of premises (Rule
34)
4.
Requests for physical or mental examinations (Rule 35)
Scheduling Conference and a discovery planning conference (Rule 16: Ct sets early ct date, not much time for discovery, if have to get ct order for discovery, parties might think twice before asking for it) ** Look at other chart too!
Federal
Rule(s)?
Oral Deposition
Rule 30; Rule 45
Written
Deposition
Rule 31;
Rule 45
Interrogatories Request for production
Rule 33 Rule 34; Rule
45
Physical/
Mental Exam
Rule 35
Request for admission
Rule 36
From whom is information sought?
30a1Party, third party, nonparty
31aParty, third party, nonparty
33a1Opposing party or third party
34a Opposing party or c third party
A1 Any party involved
What type of information is obtained?
26bInformation regarding the facts of the case or perceived facts of the case.
Nonprivileged matter relevant to any parties claim or defense.
26bInformation regarding the facts of the case or perceived facts of the case.
Nonprivileged material
26bInformation relating to any matter that may be inquired into under Rule
26(b)
Nonprivileged matter
Production of documents or other hard evidence
B2 Medical information regarding the mental or physical condition of the person whose health is in controversy related to case
A1 The truth of any matter relating to facts, the application of law to fact, or opinions about either and the genuineness of any described document

Limits in number or frequency of requests?
30a2AiMust obtain permission if more than 10 depositions are being taken
31a2AiMust obtain permission if more than 10 depositions are being taken
Limit on 25 written
Is prior court approval required?
30a2 If the deponent is in prison
Leaving the US and deposition needs to occur before the permitting time in
Rule 26(d)
If the person has already been deposed and you are seeking a second deposition
31a2If the deponent is in prison
Leaving the US and deposition needs to occur before the permitting time in Rule 26(d)
If the person has already been deposed and you are seeking a second deposition
A court can allow additional interrogatories that are consistent with
Rule 26(b)
/(discovery scope and limits) n/a What response if party believes that the request is improper?
30d3An objection can be made and will be noted on the record to terminate or limit
B4 You can object to an interrogatory when you state with specificity what the objection is and it is done in a timely manner
B2 b &c You can object to part or whole of a request with reasons. If part, must allow examination of the nonobjected to part
A2 Yes - the court must agree to the exam- invasive to the body so must have approval
A5 The objecting party can object with grounds stated and the court must evaluate that objection a6 b.
The Scope of Permissible Discovery (Relevant, proportional & not privileged) i.
Rule 26(b) Relevance and Proportionality Standards
1.
Evidence is relevant if: a.
It has any tendency to make a fact more or less probable than it would be without the evidence; and b.
The fact is of consequence in determining the action
2.
Rule 26(b) - it gives with one hand but takes with the other a.
Rule 26 (b)(1) allows discovery of all relevant information except Rule
26(b)(2) says discovery of relevant information places an undue burden or cost
3.
Relevant information is a broad standard (not limited by admissibility) a.
The discovery itself doesn’t have to be admissible - just has to lead to admissible evidence- elastic concept to learn more b.
It is relevant if it has any tendency to make a fact more or less probable than it would be without the evidence and the fact is of consequence in determining the action ( this is the definition of relevance for civil rules of evidence)
4.
Should the definition be the same?

a.
Earlier in the case we are less worried about bringing in too much information i.
Discovery is about information gathering ii.
Evidence is about controlling the flow of information to the trier of fact - has a naturally limiting factor
5.
Nonprivileged material Relevant to what? a.
What is the context to evaluate b.
To a claim or defense OR subject matter (two circles drawn, overlap) i.
Some other language in the rule says you must request court's permission regarding the "subject matter" of the action.
1.
This creates a gap a.
What is it about this gray area that is troubling - if you are going to fish rather than target, you need the court's permission
2.
What is left in the gray area a.
Another iteration of the Goldberg v. Kelly problem - risk of error skew - courts don’t always know whether or not they should grant broad discovery i.
In pleading, the risk was skewed toward the defendant who was the recipient of the claim and discovery risk ii.
NOW the risk is skewed toward the plaintiff because now they must get permission for information regarding the subject matter and a judge can say no
6.
Rule 26 (b) (2) (B)Limitations on Frequency and Extent a.
Is it relevant in relation to the cost and burden it imposes - Vague b.
Judges have substantial discretion in enforcing Rule 26(b)(2) limits of costs- arbitrary decisions, wise & judicious, what motivates behavior of judge? c.
Unappealable until the end of the case (unless you settle) d.
What are potential methods for judges to employ? i.
Marginal utility analysis: The incremental cost of discovery exceeds the incremental benefit. The 11th deposition is not worth as much as the 1st ii.
Highly speculative- not sure how much benefit will be gained iii.
Need to make an economic argument while sounding like a lawyer iv.
Proportionality 26b2Ciii Test (on worksheet)- Expected value, probability of success, amount of judgment
7.
W.E. Aubuchon co. v. Benefirst, LLC, 2007

(employee benefit plans, poor claims storage discovery of electronic data, Rule 26/34

When information is an integral component of a case and the plaintiffs show good case for needing it, the information should be turned over despite a high cost to the other party. NOT REASONABLY accessible but shown GOOD CAUSE.

3 Factors in Rule 26: Relevant, privilege & proportionate

Specificity of request, quantity info available from other sources, imp info, usefulness, imp of issues at stake in litigation ii.
Privilege iii.
Electronically Stored Information (ESI) Rule 26b2B, Rule 37e safe harbor: no sanctions unless exceptional circumstances
1.
The demarcation line for ESI is whether the information “ is not reasonably accessible because of undue burden or cost.
”-26b2B If it is reasonably accessible, it is disclosable

or discoverable. If it is not, then information is not disclosable or discoverable unless “the requesting party shows good cause , considering the limitations of Rule 26(b)(2)(C)- quantity, computers regularly destroy info iv.
Protective Orders. Rule 26c- When discovery should not be permitted at all v.
Rule 26g: Sanctions , discovery counterpart to Rule 11- Reasonable Inquiry, not specific sanctions c.
Judicial Management of Discovery i.
The Role of Lawyers. Trial Judges, and Appellate Judges in Preventing and Resolving
Discovery Disputes.
1.
Rule 29. Stipulations About Discovery Procedures.
Unless the court orders otherwise, the parties may stipulate that: a.
A deposition may be taken before any person , at any time or place, on any notice, and in the manner specified – in which event it may be used in the same way as any other deposition; and b.
Other procedures governing or limiting discovery be modified – but a stipulation extending the time for any form of discovery must have court approval if it would interfere with the time set for completing discovery, for hearing a motion, or for trial.
2.
Oversight Questions
A.
Do rules adequately balance the need for negotiated resolutions w/ the need for effective judicial management?
B.
Once judges can intervene, do they have enough power or too much power?
C.
Do rules provide meaningful guidance for use of that discretion?
D.
Rules of Judicial Management: (brought in at right time?)
E.
262BA?: Judges can control frequency of discovery
F.
26D: Cts control time & sequence of discovery
G.
26b1: judges can expand scope of discovery for good cause
H.
26c: Protective orders
I.
Motion to Compel: Rule 37 a-e, 26g3 court sanctions
3.
Discovery creates a tension for lawyers by forcing them to turnover information potentially damaging to their case. What if they refuse or want to refuse? a.
The resisting party has three options: i.
Not give, not give, okay ii.
Not give it and wait to see if the other party files a motion to compel iii.
Strike first, file a motion for a protection order b.
Requesting party can: i.
Abandon request ii.
Strike first motion to compel iii.
Wait to see if the other party files a motion for a protection order and then file its own motion c.
What want to go first? i.
Frame arguments before the ct, set up terms for debate, not hiding ii.
More efficient with time, want info now iii.
often get last word as well when file 1 st d. Why wait?
i. Info will come out anyway
ii. Burden of persuasion on other side
iii. Just because can file first doesn’t mean you should
iv. Think about choices- whether, when and what ii.
Sanctions (Punishment & Deterrence)

V.
1.
Rule 37. Failure to Make Disclosures or to Cooperate in Discovery; Sanctions a.
Motion for an Order Compelling Disclosure or Discovery- Minor (NHL) b.
Failure to Comply with a Court Order- Major Sanctions c.
Failure to Disclose to Supplement an Earlier Response, or to Admit d.
Party’s Failure to Attend its Own Deposition, Serve Answers to Interrogatories, or Respond to a Request for Inspection. e.
Failure to Provide Electronically Stored Information f.
Failure to Participate in Framing a Discovery Plan g.
Others: Fail to disclose info about witnesses used, fail to admit truth of Rule 36 request for admission, forcing other party time & expense of proving proposition
2.
Rule 37 has both minor and major sanctions
3.
NHL v. Metropolitan Hockey Club, 1976

(The MHC's antitrust action against the NHL was dismissed for failure to timely answer written interrogatories as ordered by the district court- many extensions, told ct would not miss the date)

District courts may possess the extreme sanction of dismissal to ensure both the parties in front of them behave correctly as well as future parties. However, district courts may only use this sanction for appropriate cases.

Found bad faith & disregard of responsibilities, so extreme dismissal sanction ok

Rule utilitarian: Overall, better off so future cases avoid problem; sacrifice this client for those in the future (Compare with Tower Ventures as well- follow ct orders)
 NHL: Prove prejudice: We’ve suffered cost, shouldn’t have to continue case
 Why not dismiss? Cases shouldn’t be decided on technicalities, but on merits, less severe like strike or fine might be okay- don’t punish client for lawyer’s mistake
4.
Gonsalves v. City of New Bedford, 1996

(lawyer concealed a HIV positive status of a client in a wrongful death suit)

Plaintiff's lawyer held liable for hiding the HIV positive status of the decedent. As the lawyer is paid on a contingency, he was self-interested in a high damage outcome
& received more for saying P was healthy.

Proper sanctions under 26 g 2 & 3: $15,000 (dif than Metro ^ which dismissed before hear merits of case, becuz there was a ct order and here only lied to judge? yrs probably not bcuz Tower Ventures also dismissed)
 What’s sanctionable?
1. Mislead ct in saying “healthy”
2. Mislead judge about when received medical records
3. Allowed Gonsalves to answer interrogatories- denied knowing about HIV status
-Should we impute his knowledge to her?
 *26g1: Lawyer sign “response”- undefined

26g1- signing doesn’t apply to interrogatories, 33b5 lawyer only have to sign objections iii.
Secrecy and Public Access to Sealed information
Alternatives to Jury Trial (How Most Civil Cases End ) i.
Rules: 7 th Amendment, 12, 16, 38, 39, 41, 50, 55, 56, 59, 61, 68 b.
Background: The Right to a Jury Trial i.
Rule 38. Right to a Jury Trial; demand
(a) Right Preserved . The right of trial by jury as declared by the Seventh Amendment to the Constitution – or as provided by a federal statute is preserved to the parties inviolate.
(b) Demand. ( A party can demand a jury trial 2 ways) <14 days after last pleading

(c) Specifying Issues . (if a party doesn’t want all claims tried by jury, must specify)
Waiver; Withdrawal. ( jury trial is waived unless demanded & demand can b withdrawn) ii.
Rule 39. Trial by Jury or by the Court
(a) When a Demand is Made: Must preserve right of becomes a bench trial
(b) When No Demand is Made.
(c) Advisory Jury; Jury Trial by Consent iii.
In federal court, 2/3 of civil trials are jury trials and the rest are bench trials iv.
Judge decides disputes of law and Juries decide disputes of fact. v.
For categories of cases that correspond to the old common-law writs (i.e. torts or contracts), the right to a jury as factfinder is taken as a given (weak cases settled) vi.
To see if there should be a jury trial, look at three things:
1.
Nature of issues involved (jury-law v equity-judge)
2.
Remedy sought (legal/equitable in nature)
3.
Issues typical for jury’s judgment vii.
What is the function of a jury? (resolve cases on the merits)
1.
Factfinding a.
Resolve credibility issues- who is telling the truth b.
Weigh the evidence- of experts c.
Draw inferences- circumstantial evidence
Who did what to who, how, why did it
2.
Apply law to facts to reach a verdict about party’s rights a.
Apply definitions of instructions to facts b.
Find facts c.
Decides legal outcome/significance of facts viii.
What are the benefits of a jury trial?
1.
Many more perspectives & experiences- resolve cases based on decisions of people
2.
Outcomes more legitimate (Judge is a lawyer and people have worldview)
3.
Enhances democracy to place a check on the government
4.
Foster civic virtue for jurors to learn the process ix.
What are the cons of a jury trial?
1.
May have group think, Not representative of the population
2.
Very slow
3.
May bring stereotypes/be easily tricked/reach no decision c.
Case Management (16: Most technical & affects outcomes the most) i.
Two questions to consider in case management:
1.
How much of a role should judges have in shaping cases? a.
Lawyers in control, pleading, joinder and discovery- autonomy important b.
Judges: Authority in structuring ADR: Rule 16 counteracts everything ^ c.
16: Unreviewable power to judge- speed and cost reduction (accuracy no?)
2.
Regardless of what judges should do, what do they do in practice? ii.
Rule 16 is a raw dose of judicial power iii.
The rates of settlements should not be surprising because when rational parties have access to the relevant information about their dispute, they can perceive the strengths and weaknesses of each other’s cases, as well as the likely range of recovery if the plaintiff wins. iv.
The pretrial process is more about resolving disputes than about beginning the adjudication of a claim. Value: deserve day in court? Case mgmt. allows for more efficient time for judge? v.
Rule 16. Pretrial Conferences; Scheduling; Management
(a) Purpose of a Pretrial Conference
(b) Scheduling

(c) Attendance and Matters for Consideration at a Pretrial Conference
(d) Pretrial Orders
(e) Final Pretrial Conference and Orders* RMR test
(f) Sanctions vi.
Tower Ventures, Inc. v. City of Westfield, 2002

(Wanted to build a tower and the city denied the permit. so Ventures brought suit)
 A litigant who ignores case-management deadlines does so at his peril. Ventures continued to miss the deadlines for discovery for unexpected delays- self imposed 3 day deadline w no excuse. Ct directed Ventures to show cause why action should not be dismissed. Ventures moved for an extension and said that the City was not prejudiced but doesn’t state the reason for delays. That ignores ct’s independent interest in administering the docket- scheduling orders are essential to be effective & efficient and cannot be ignored.

The court is given discretion to choose from a broad universe of possible sanctions for unexcused misconduct (16F1-37b2A5-Dismissal).
 Rule Utilitarianism : Sacrifice these litigants for future unknown litigants (Punish defender
& deter others from similar misconduct- NHL- follow ct orders)

(Compare with Gonzalves- monetary fine for bad, but already won on the merits, here: early, maybe because didn’t find out until the end and followed ct’s schedule & good case for civil rights?) vii.
Acuna v. Brown & Root Inc., 2000

(1600 plaintiffs exposed to mining hazards)
 Plaintiffs did not follow the Lone Pine order . Required to specify how many instances of which diseases from which facilities, but only had form affidavits from one doctor. Lone Pine order is not a technicality - it is tainting the case on the merits - fundamental departure from deciding the case on the merits, because it is ultra fact pleading of Rule 8
 Rule 16f1c- Failed to obey scheduling pre-discovery order - ct required specificity for D to be put on notice but only resubmitted similar unspecific documents so Dismissed case
 Justifies bcuz gatekeeping since discovery would be so expensive

11b3: Should have conducted investigation before brought case, already should have had information before filing a claim (Gold v Kelly: Decisions imperfect, skew risk error) viii.
Ocean Atlantic Woodland corp. v. DHR Cambridge Homes, Inc., 2004
 Because the issue of damages might not be reached, the court was not in error when it bifurcated discovery and only permitted discovery on the liability first before damages.
 Affects outcome- less likely to find damages if have to find liability first (more likely to find liability if claim for damages)

Judge has the power to sequence suit: Liability and then damages affects the outcome ix.
R.M.R. v. Muscogee County School District, 1999

(Plaintiff was 13 yrs old and was molested by his music teacher. Sued the school district for prior knowledge. 11 th witness not allowed to testify to prove school had prior knowledge and shouldn’t have had teacher there still bcuz extremely prejudicial, D have no time to structure defense or discovery, in middle of D’s defense, would have disrupted flow)

NO surprises in ct 16e plus 26a3 requires list of witnesses, cases somewhat scripted

RMR could have moved for continuance or requested a mistrial (unlikely to be passed)

(Gold: Risk of error: Either prejudice bcuz imp witness testifies or cost of new trial)
1.
Whether the trial court abused its discretion by not allowing an 11th hour witness who shows up at court even though he was not listed on the pretrial disclosure document? a.
Test (16e): ( Final pre-trial conference order changed only to prevent manifest injustice) i.
Importance of testimony (yes, very)

ii.
Reason for the failure to disclose witness earlier (not at fault, diff last name so hard to track him down from the info given by the school) iii.
The prejudice to the opposing party if the witness had been allowed to d.
How Claims can be Dismissed: testify
1. Party Consent (41)
2.
e.
Voluntary Termination of Claims i.
Voluntary Dismissal
1.
Rule 41. Dismissal of Actions a.
Voluntary dismissal- PARTY CONSENT
(1) By Plaintiff. (SETTLEMENT MADE EARLY or 68 formal)
(A) Without a Court Order. Subject to Rules 23(e.), 23.1(c),
23.2, and 66 and any applicable federal stature, the plaintiff may dismiss an action without a court order by filing:
(i) a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment; or
(ii) a stipulation of dismissal signed by all parties who have appeared.
(B) Effect. Unless the notice or stipulation states otherwise, the dismissal is without prejudice. But if the plaintiff previously dismissed any federal – or state-court action based on or including the same claim, a notice of dismissal operates as an adjudication on the merits.
(2) By Court Order; Effect . Except as provided in Rule 41(a)(1), and action may be dismissed at the plaintiff’s request only by court order, on terms that the court considers proper. If a defendant has pleaded a counterclaim before being served with the plaintiff’s motion to dismiss, the action may be dismissed over the defendant’s objection only if the counterclaim can remain pending for independent adjudication. Unless the order states otherwise, a dismissal under this paragraph (2) is without prejudice.
(c) Dismissing a Counterclaim, Crossclaim, or Third-Party Claim
(d) Costs of a Previously Dismissed Action ii.
Settlement and Alternative Dispute Resolution
1.
Why do cases settle?

a.
Prompt resolution: need $$ now more than more $$ later b.
Reputation: Don’t want out in public eye (secrets out in trial, save relationship) c.
Psychological effect: distracting to business d.
Only litigate cases likely to win- reduces litigation costs, ct freed up e.
Risk adverse: Something rather than nothing for P & D prefer not uncapped exposure for future cases brought (adjudicate: winner/loser takes all) f.
Contingency fee lawyers: Rather paid now or else maybe not get any money g.
Vindicate party preferences (judges have too much power)
2.
Why don’t cases settle?
a.
The case is symbolic: want publicly held accountable, keep getting more $ settle b.
Goal can’t be reduced to a monetary value c.
Some companies never settle- deter lawyers from taking cases d.
Paid by the hr defense lawyers: continue getting paid e.
Like plea bargaining, not encouraged: poor party coerced, less than ideal
3.
How much should cases settle for? (Bargaining in light of law & what jury would decide) a.
P: Expected value (of suit)= Probability x Judgment – Cost
(of winning) (earned) (lawyer’s fees)
Don’t signal risk adverse, signal risk seeking so D doesn’t low ball
-Use motions to advantage: Rule 12 counter motions- more cost, severance/joinder, discovery- protective order b.
D: Expected value = Probability x Judgment + Cost
4.
Rule 68. Offer of Judgment (Settlement or 41 early and non-formal) a.
Making an Offer; Judgment on an Accepted Offer. b.
Unaccepted Offer c.
Offer After Liability is Determined d.
Paying Costs after an Unaccepted offer
5.
The gains in terms of reduced costs and delays that were achieved in the cases that were disposed of through mandated ADR were evenly balanced against the additional costs and delays that ADR created in those cases forced to go through the ADR process without success.
6.
ADR can be binding (arbitration, normally) or non binding (mediation, normally) but ct can force it to be binding
7.
Negotiation: Primary means of ADR as opposed to adjudication
8.
ADR: Unreviewable, not due process f.
Involuntary Termination of Claims i.
Before Trial
1.
Inaction/Default a.
Rule 41- P failure to comply or misconduct i.
(b) Involuntary Dismissal; Effect.
If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it.
Unless the dismissal order states otherwise, a dismissal under this subdivision(b) and any dismissal not under this rule – except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19 – operates as an adjudication on the merits. (MOTIVATES P TO BE DILIGENT)
2.
Rule 12 Dismissal- before discovery- Motion to dismiss a.
Rule 12 (b) How to Present Defenses and b.
12(c) Motion for Judgment on the pleadings - CONNECTS with Sum judge
AFTER party has time to discover

3.
Summary Judgment- BEFORE TRIAL- 56- Gatekeeping- Cold: No jury yet

Extreme remedy- only if NO room for controversy & other party not entitled to prevail under ANY circumstances (can’t grant for failure to respond)
 Intrusion of judge into jury’s factfinding province
 56a “no genuine dispute” connects with 50a “reasonable jury” during trial

Balance 7 th Amendment due process & screening cases early

Catalyst for settlement: each side learns more- signals of strength

Two views: Jury & Adversarial Merits OR Efficiency Settlement, judicial mgmt.

Conflicting inferences from undisputed admissible evidence: no sum judge

But if only some disputes but not genuine, then sum judge- judge asked to decide

Non-moving party: Motion made pre-maturely, not need to win

Instead of seeing play, just read it (paper judgment, no live testimony) a.
Rule 56 Summary Judgment** Look at paper for burden---
(a) Motion for Summary Judgment or Partial Summary Judgment .
A party may move for summary judgment, identifying each claim or defense – or the part of each claim or defense – on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to material fact and the movant is entitled to judgment as a matter of law . The court should state on the record the reasons for granting or denying the motion.
(b) Time to File a Motion: 30 days after close of discovery or local rules
(c) Procedures
1.
Supporting Factual Position (part B of this is the bluffing rule)
2.
Objection that a Fact is not Supported by Admissible Evidence
(Can’t be hearsay of the deceased, but live testimony)
3.
Materials Not Cited
4.
Affidavits or Declarations
(d) When Facts are Unavailable to the Nonmovant
2: Link to Discovery: Judge can deny/defer sum judg if discovery didn’t occur yet, so don’t move SJ RIGHT away
(e.)Failing to Properly Support or Address a Fact
(f) Judgment Independent of the Motion
(g) Failing to Grant All the Requested Relief: Partial , link w/a
(h) Affidavit or Declaration Submitted in Bad Faith
4.
Standard (in 56 a): Say fighting about facts but not, just asserting it, need evidence to prove it a.
MATERIAL fact: Might affect outcome of suit- significant evidence
(if other evidence proves he was drunk, vodka in bottle NOT material) b.
GENUINE: MORE than a scintilla of evidence, CONVINCING/preponderence
(heighten standard) & when jury has to do some work to resolve it
5.
56c1B: The bluffing rule is that the motioning party is making the nonmoving party prove there is a case rather than the motioning party being required to show there isn't a.
The bluffing ruling almost has to be the case if you want Rule 56 summary judgment to do anything
6.
Anderson linked two procedures: the standard under which a judge can grant summary judgment before trial under Rule 56 and the standard under which a judge can enter judgment as a matter of law during trial under Rule 50(a).
7.
Anderson v. Liberty Lobby, 1986 ^^


In libel suits, the P’s heightened burden of clear and convincing standard of proof for “actual malice” of statements in New York Times needed at trial should be taken into account in ruling on summary judgment motions and case only be granted if a genuine issue of material fact exists to that standard.

Lose now as opposed to lose later. Summ judgment granted- not enough evidence.

Sup Ct says MUST have affirmative evidence of culpability (red-handed on paper) and NOT just negative inferences from state of mind of shifty behavior (from trial)

(Gold v Kelly: better to have disc, trial then DV after than sum judg & no trial w affirm evidence, but w neg inferences, flip around so rather not have trial than have)

NOT supposed to weigh evidence for sum judgment, but still bear in mind quantum
& quantity for clear and convincing standard, which is pretty much weighing evidence & coming to the same one- sided conclusion

Dissent: Sum judge should fail regardless of the standard if P has proved all the elements of the case. Judge NOT supposed to be 13 th juror & weigh evidence, which is necessary for heightened standard. Should have lower bar standard (preponderance for sum judge as opposed to CC) bcuz then jury decides if meets the standard, as opposed to the judge deciding that.
8.
Matsushita Electric Industrial Co. v. Zenith Radio, 1985/86

(Anti-trust law is unusual which makes procedure difficult. Japs conspiracy to lower prices and boot out competition and then rise prices later to make up for it. No motive and so sum judgment okay- more aggressive)

In cases alleging conspiracy, in granting summary judgment, courts should look to whether the facts give rise to means, motive, and conduct (making them persuasive) that a reasonable jury could find constituting conspiracy- nonmoving party must do more than show there is some metaphysical doubt as to the material facts .
9.
Scott v. Harris, 2007

(police chase, video judge can watch cuz sent to jury anyway- Cop chased driver for
10 miles & 6 min after speeding, used pit maneuver to stop vehicle- crashed off,
Harris filed 4 th Amendment unreasonable force- sum judge passed for Scott)

Is the evidence in support of the Plaintiffs credible? (Here, Harris did NOT have credibility bcuz the video evidence clearly showed otherwise)

Mixed question of law (Summ judgment case) and fact (4 th Amendment case) – Was
Officer Scott acting objectively reasonable to use force to terminate the high speed chase? How much weight should be given to the tape?
 Videotape contradicts Harris’s version of story: even w facts weighed more towards
Harris, no reasonably jury could believe Harris’s version of the facts so sum judge

Without tape, Harris COULD state that Scott wasn’t objectively reasonable to use force, establish in brief, why it needs to go to the jury- depose cop, always use maneuver when terminating chase? Should go to jury to decide if this chase was diff?
 Was the maneuver’s risk of harm (only to prevent further harm) exceeding the benefit of stopping him? Video is only ONE piece of evidence- ct shouldn’t be weighing the evidence like a jury, not strong enough to take case away from jury

Dissent, Stevens: Reasonable jury COULD disagree on whether force was needed- could keep chasing, hit him or let him go- wasn’t sufficiently dangerous enough or necessary to use it- no innocent bystanders around, could have abandoned chase after license plate, supposed to stop chasing if risk greater by continuing chase ii.
During or After a Trial

1.
Judgment as a Matter of Law (DV, AT TRIAL- ALL ABOUT MERITS DURING
TRIAL) a.
Rule 50 (a) Judgment as a Matter of Law. (BEFORE GOES TO JURY)
(1) In General . If a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on the issue , the court may: (reflects 56a but not as cold buz after live show)50a & 16d structure trials, critical issues) includes weighing some evidence to a limited extent, making reasonably inferences in favor of non moving party- could reasonable minds differ?)
(A) resolve the issue against the party; and
(B) grant a motion for judgment as a matter of law against the party on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue
(2) Motion.
A motion for judgment as a matter of law may be made at any time before the case is submitted to the jury . The motion must specify the judgment sought and the law and facts that entitle the movant to the judgment. b.
Reeves v. Sanderson Plumbing Products, Inc., 2000

(Age Discrimination case) (P wins with jury verdict, D cannot win 50 motion)
 Rule: P’s prima facie case combined w sufficient evidence to find that employer’s asserted justification is false may permit trier of fact to conclude that the employer unlawfully discriminated and can go to jury so Rule 50 motion for D cannot be accepted (P doesn’t always need new additional, independent evidence of discrim)

Rule 8 bar is low for pleading, but bar higher as go through case, Rule 50

McDonnell Douglas framework for burden of production for discrimination cases:
1. P must establish a prima facie case (age old enough, qualified for position, ppl replaced)
2. Burden of proof switches to D to produce evidence that P was rejected or someone else was preferred for a legitimate, nondiscrim mean
3. P show legitimate reason is just discriminatory pretext

Sanderson will give us more clarity about what a judge should do versus what the jury should do. What is the plaintiff asserting, what is the defendant asserting? Are they clashing? Do they agree? c.
Rule 55 Default; Default Judgment
Party in Action: D Fail to appear, or D doesn’t participate
(a) Entering a Default
(b) Entering a Default Judgment
(c) Setting Aside a Default or a Default Judgment
(d) Judgment Against the United States
2.
Renewed Motion for Judgment as a Matter of Law/New Trial
(VERDICT DOESN’T MEAN CASE IS OVER! 50 B OR 59 RULE)
Rule 50 Judgment as a Matter of Law in a Jury Trial; Related Motion for a
New Trial; Conditional Ruling (AFTER GOES TO JURY & a VERDICT- same standard as 50a, can only be brought if motioned the first time)
(b) Renewing the Motion After Trial; Alternative Motion for a New
Trial- within 28 days of entering judgment

(c) Granting the Renewed Motion; Conditional Ruling on a Motion for a
New Trial- within 28 days
(d) Time for a losing Party’s New-Trial Motion.
(e.) Denying the Motion for Judgment as a Matter of Law; Reversal on
Appeal.
(If move for renewed judgment as a matter of law, must consider new trial under c- look at renewed first but consider how rules work together) a.
Rule 59. New Trial; Altering or Amending a Judgment (can’t reduce jury’s verdict of damages cuz 7 th Amendment)
(a) In General
1.
Grounds for a New Trial (FAIRNESS CATCH ALL)
2.
Further Action After a Nonjury Trial
(b) Time to File a Motion for a New Trial- 28 days
(c) Time to Serve Affidavits
(d) New Trial on the Court’s Initiative or for Reasons Not in the Motion
(e.) Motion to Alter or Amend a Judgment b.
Rule 61 Harmless Error- Ignore them if don’t affect party’s substantial rights
VI.
FINALITY, APPEALS, & PRECLUSION (Litigation ain’t over until its over) a.
Mechanics of Judgment i.
Rules: 54(a, b), 58 (a, b), 60; 28 USC 1291, 1292 (a, b) ii.
Rule 54. Judgment; Cost
(a) Definition; form. “Judgment” as used in these rules includes a decree and any order from which an appeal lies. A judgment should not include recitals of pleadings, a master’s report, or a record of prior proceedings.
(ADJUDICATION ENDS IN JUDGMENT- WHO WINS/LOSES)
(b) Judgment on Multiple Claims or Involving Multiple Parties. When an action presents more than one claim for relief – whether as a claim, counterclaim, crossclaim, or third-party claim – or when multiple parties are involved, the court may direct entry of final judgment as to one or more, but fewer than all , claims or parties only if the court expressly determines that there is no just reason for delay . Otherwise, any order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties’ rights and liabilities.
(JUDGMENTS CAN BE COMPLETE OR PARTIAL) iii.
Rule 58. Entering Judgment.
(a) Separate Document. Every judgment and amended judgment must be set out in a separate document, but a separate document is not required for an order disposing of a motion:
1. For judgment under Rule 50(b)
2. To amend or make additional findings under Rule 52(b);
3. For attorney’s fees under Rule 54
4. For a new trial, or to alter or amend the judgment, under Rule 59; 0r
5. For relief under Rule 60.
(b) Entering Judgment.
(1) Without the Court’s Direction . Subject to Rule 54(b) and unless the court orders otherwise, the clerk must, without awaiting the court’s direction, promptly prepare, sign, and enter the judgment when:

(A) the jury returns a general verdict
(B) the court awards only costs or a sum certain; or
(C) the court denies all relief.
(2)
Court’s Approval Required
. Subject to rule 54(b), the court must promptly approve the form of the judgment, which the clerk must promptly enter, when:
(A) the jury returns a special verdict or a general verdict with answers to written questions; or
(B) the court grants other relief not described in this subdivision (b) b.
Relief from Judgment i.
Rule 60. Relief from Judgment or Order AFTER JUDGMENT ii.
(CLEARLY FAVORS FINALITY OVER ACCURACY & FAIRNESS) - doesn’t sweep aside judgments for frivolous appeals- must prove success iii.
Later in the case, we are more reluctant to change flaws- 5 +1 grounds justify re-opening case iv.
Pleading (8): Avoid technicalities, allows ppl to plead, discovery: ensure all useful info collected so jury make right decision. After judgment: technicalities- limited circumstances once day in ct over, no time to re-litigate v.
Get right FIRST way through system vi.
Re-opening case does NOT mean the tr ct was wrong- not legal mistake NOT litigating cases on the merits vii.
Rule 60 seeks to strike a balance between important procedural values – in particular, ensuring finality of the judgment (over endless litigation) and obtaining accurate outcomes on the merits not just technicalities (too much process may be unjust- won by party w greater resources) viii.
Marginal Costs/Benefits- extra resources to achieve perfection- does $1 continue litigate create a benefit? ix.
If a judgment is entered, is that the end? NO. There could be an appeal. If the court of appeals denies them, they can appeal to the Supreme Court and even if the Supreme Court rules against them, there is rule 60
1.
And Rule 60 in very rare cases, that isnt even the end. You could collaterally attack the judgment in another district or state. Difficult to do c.
Availability of Appellate Review
3 Concepts of Review: Appealability, Reviewability and Standard of Review
A . Appealability : Must have final judgment first before appeal
B . Reviewability : When tr ct rulings Ct of App will consider- may not be appealable but reviewable later error must be “properly preserved” for review
C. Standard of Review : Questions of law or mixed- subject to de novo App review w/o defense to tr ct’s view- reflects cts imp of attempting to assure uniformity of legal standards
-Findings of fact by judge or jury only changed w/ “clear error”- abuse of discretion i.
Rule 60. Relief from Judgment or Order AFTER JUDGMENT
(a) Corrections Based on Clerical Mistakes; Oversights and Omissions. Technical errors/typos
(b) Grounds for Relief from a Final Judgment, Order or Proceeding. On motion and just terms , the court may relieve a party or its legal representative from a final judgment, order, or proceedings for the following reasons: CANNOT REVERSE ON MERITS-
AFTER TRIAL DONE
(1) mistake, inadvertence, surprise, or excusable neglect (below); (landmine, careful, Ackermann) within 1 yr from entry of judgment
Excusable neglect (Rule 60(b)(1)) is examined by three factors
1. Whether the non-defaulting party will be prejudiced
2. Whether the defaulting party has a meritorious defense;

3. Whether culpable conduct of the defaulting party led to the default
(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b); 1 yr
(emphasizes finality over accuracy)
(3) fraud, misrepresentation, or misconduct by an opposing party; 1 yr
(4) the judgment is void;
(5) the judgment has been satisfied, released or discharged; or is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or (“institutional reform litigation”- not clear, injunctive relief: not clear)
(6) any other reason that justifies relief. (but not any reasons above bcuz stricter or no point in separation: “extraordinary circumstances”- use sparingly, not to rescue litigant from strategic choices later turn out to be bad)
(c) Timing and Effect of the Motion; REASONABLE TIME AND 1-3 WITHIN
ONE YEAR
(d) Other Powers to Grant Relief
(e) Bills and Writs Abolished. ii.
Ackermann v. United States, 1950

(deportation of Nazis- appealed deportation too late to try and stay in US)
 When you have a choice to appeal, freedom of action, advice of counsel, and a trial and still miss the time constraints dictated by the Rules, you cannot avail yourself of the liberalness of
Rule 60(b).
 Claimed 60b6 “any other reason justifies relief” for not appealing within 1 yr bcuz too poor and believed gov official not to appeal, but that excuse would actually fall under 60b1
“excusable neglect” which can only be brought within 1 yr of judgment, but was 4 yrs later so
NO relief can be made. Must be diff than 60 b1-5 or no point in having diff #6.

Ack have to prove NOT a 60b1 case: could not appeal- inability, not an excuse OR like cases should be treated alike 60b5/b6 jurisprudence (family member appealed and won)- wouldn’t open the floodgates (not sure 60b1 would have applied if appealed in time anyway)
VII.
Preclusion (No rule, only through common law) a.
Introduction i.
Rules/Restatements: 28 USC 1738 , Restatements of Judgments 83, 84 ii.
Resolution of an issue or claim PRECLUDES subsequent litigation. (Ackerman: get it right v. get it done) iii.
Duty to intervene?
1.
One goal of preclusion doctrine is efficiency//// Diligence/speed a.
Get to that through i.
Finality (no relitigation of settled issues) ii.
Joinder incentives iv.
Why want a strict rule? Good system at beginning so harsh at end is okay, endless re-litigation is not attractive, war of attrition, bcuz then no result is binding v.
Why not want a strict rule? flexible, lenient, new evidence: can’t include it, strict preclusion is difficult to write- many sections & exceptions b.
Claim Preclusion (Res Judicata 17 & 24) i.
The basic principle of res judicata reflects a fundamental paradox. The law of res judicata endows judgments of courts with a peculiar finality: They are immune from examination by other authorities and may be reexamined by the courts themselves only in unusual circumstances . ii.
The principle underlying the rule of claim preclusion is that a party who once has had a chance to litigate a claim before an appropriate tribunal usually ought not to have another chance to do so .

iii.
CAN’T file same claim twice OR split claim from same transaction twice. iv.
Restatement Section 17 Effects of Former Adjudication – General Rules
A valid and final personal judgment is conclusive between the parties, except on appeal or other direct review, to the following extent:
(1) if the judgment is in favor of the plaintiff, the claim is extinguished and
merged in the judgment and a new claim may arise on the judgment
(2) if the judgment is in favor of the defendant, the claim is extinguished and the judgment bars a subsequent action on that claim
…
(3) A judgment is in favor of either the plaintiff or the defendant is conclusive, in a subsequent action between them on the same or a different claim, with respect to any issue actually litigated and determined if its determination was essential to that judgment. v.
Restatement Section 24 Dimensions of “Claim” for Purposes of Merger or Bar – General Rule
Concerning “Splitting” ( should have already made those arguments: Rule 18 misleading to say can bring all claims )
1.
When a valid and final judgment rendered in an action extinguishes the plaintiff’s claim pursuant to the rules of merger or bar…, the claim extinguished included all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose.
2.
What factual grouping constitutes a “transaction,” and what groupings constitute a
“series,” are to be determined pragmatically, giving weight to such considerations as whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties expectations or business understanding or usage. vi.
Merger: the idea is that a winning plaintiff’s claim is “merged” into the judgment and the only claim that the plaintiff has left is to enforce the judgment if necessary. vii.
Bar: When a claimant loses and takes nothing, he or she does not have a judgment into which its claim is merged; instead the claim is regarded as barred by the judgment for the other side, so that claimant cannot try again. viii.
Entry of a final judgment is obviously necessary for claim preclusion: for a claim to be merged into or barred by a judgment, there has to be a judgment in the first place. ix.
Rush v. City of Maple Heights, 1958

Where a person suffers both personal injury and property damages as a result of the same wrongful act, only a single cause of action can arise, because Ds wrongful act is single, and cause of action must be single, and diff injuries are items of damage from same wrong

Imposes claim preclusion for aspects of claims not actually litigated

Rush hurt himself when falling from motorcycle on neg city street- split claim first for property damage & then for personal injury, but precluded to bring the second claim

Overruled Vasu which allowed prop & personal damage to give rise to distinct causes of action but doesn’t state why; maybe foundational inefficient/burdensome to have 2 suits
 1 st suit in municipal ct for $100 & won, 2 nd in county ct for $12,000- thought first case would be easy to win but other side took it seriously & all the way to Sup Ct (win 1 st case, likely win
2 nd , lawyer trying to be strategic, but backfired & should have told client about the risk) c.
Issue Preclusion (Collateral Estoppel 27, 28, 83, 84) (Someone who wins can’t appeal neg parts of outcome) Offensive/Defensive use in Parklane below>
-Prevents 2 nd round of litigation- fire all at once or lose it- effect on future cases (7 th Amendment jury tr?) i.
Issue preclusion often arises when the same parties litigate against each other in two successive cases, but it may also come into play when someone who was not a party to the first case seeks to take advantage of rulings against the present adversary, a party to both proceedings

ii.
Issue preclusion promotes diligence : can’t revive it down the road, incentive to raise everything 1st iii.
Need FINALITY: incorrectness of judgment is NOT an exception- have chance, “actual innocence” alone isn’t enough iv.
1 st ct’s job NOT ours- if had chance to hear case on the merits & no mistake in decision making process, not our fault EXCEPTION: small claims ct diff in general claims jurisdiction (28:3) v.
Hypo: If A sues B twice for breach of contract, it is ONLY issue preclusion if the defenses towards both are the same. If the B’s defenses are diff, then not issue preclusion. vi.
Functional argument: More efficient together, single contract valid- same evidence necessary for each, same basic problem vii.
Formality argument: Diff between personal injury & prop damage viii.
Hypo: A sues B breach of contract 4 quality of widgets: must go to arbitration w/ no discovery. A wins, that Bs widgets are defective. A sues Bs in ct- explosion due to defect. Issue preclusion?
Look at 27 & 28, 83 & 84. Diff procedures in cts- no discovery, so NO preclusion. ix.
Restatement Section 27 Issue Preclusion – General Rule.
1.
When an issue of fact or law is 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 (same 2 parties) , whether on the same or a different claim.
**Actually Litigated: Buzz word: admissions & stipulations are NOT preclusive, while jury verdicts are. Admissions are normally more accurate than jury verdicts, so incentivize and protect them.
“Determined”: How know what judge/jury decided/ Look at outcome to see what must have done
“Essential”: issue preclusive effect, a finding must be essential to the judgment.
“critical & necessary standard”- might be too demanding
“supportive of” judgment- might be too relaxed, unfairly give preclusive effect x.
Restatement Section 28 Exceptions to the General Rule of Issue Preclusion
1.
Although an issue is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, relitigation of the issue in a subsequent action between the parties is not precluded in the following circumstances:
(1) the party against whom preclusion is sought could not, as a matter of law, obtained review of the judgment in the initial action; or ( if impossible to get to
App ct for review, shouldn’t be held against you
)
(2) the issue is one of law and (a) the two actions involve claims that are substantially unrelated, or (b) a new determination is warranted in order to take account of intervening change in the applicable legal context or otherwise to avoid inequitable administration of the laws; or
(3) a new determination of the issue is warranted by [meaningful] differences in the quality or extensiveness of the procedures followed in the two courts or by factors relating to the allocation of jurisdiction between them; or ( small claims ct wouldn’t have preclusive effect on gen ct )
(4) The party against whom preclusion is sought had a significantly heavier burden of persuasion with respect to the issue in the initial action than in the subsequent action; the burden has shifted to his adversary; or the adversary has a significantly heavier burden than he had in the first action; or
(5) there is a clear and convincing need for a new determination of the issue (a) because of the potential adverse impact of the determination on the public interest or the interests of persons not themselves parties in the initial action, (b) because it was not sufficiently foreseeable at the time of the initial action that the

issue would arise in the context of a subsequent action, or (c) because the party sought to be precluded, as a result of the conduct of his adversary or other special circumstances, did not have an adequate opportunity or incentive to obtain a full and fair adjudication in the initial action. xi.
Restatement § 83
. Adjudicative Determination By Administrative Tribunal
(1) Except as stated in Subsections (2), (3), and (4), a valid and final adjudicative determination by an administrative tribunal has the same effects under the rules of res judicata, subject to the same exceptions and qualifications, as a judgment of a court.
(2) An adjudicative determination by an administrative tribunal is conclusive under the rules of res judicata only insofar as the proceeding resulting in the determination entailed the essential elements of adjudication, including:
(a) Adequate notice to persons who are to be bound by the adjudication, as stated in § 2 ;
(b) The right on behalf of a party to present evidence and legal argument in support of the party's contentions and fair opportunity to rebut evidence and argument by opposing parties;
(c) A formulation of issues of law and fact in terms of the application of rules with respect to specified parties concerning a specific transaction, situation, or status, or a specific series thereof;
(d) A rule of finality, specifying a point in the proceeding when presentations are terminated and a final decision is rendered; and
(e) Such other procedural elements as may be necessary to constitute the proceeding a sufficient means of conclusively determining the matter in question, having regard for the magnitude and complexity of the matter in question, the urgency with which the matter must be resolved, and the opportunity of the parties to obtain evidence(discovery) and formulate legal contentions. (CATCH
ALL!)
(3) An adjudicative determination of a claim by an administrative tribunal does not preclude relitigation in another tribunal of the same or a related claim based on the same transaction if the scheme of remedies permits assertion of the second claim notwithstanding the adjudication of the first claim.
(4) An adjudicative determination of an issue by an administrative tribunal does not preclude relitigation of that issue in another tribunal if according preclusive effect to determination of the issue would be incompatible with a legislative policy that:
(a) The determination of the tribunal adjudicating the issue is not to be accorded conclusive effect in subsequent proceedings; or
(b) The tribunal in which the issue subsequently arises be free to make an independent determination of the issue in question. xii.
Restatement § 84
. Arbitration Award
(1) Except as stated in Subsections (2), (3), and (4), a valid and final award by arbitration has the same effects under the rules of res judicata, subject to the same exceptions and qualifications, as a judgment of a court.
(2) An award by arbitration with respect to a claim does not preclude relitigation of the same or a related claim based on the same transaction if a scheme of remedies permits assertion of the second claim notwithstanding the award regarding the first claim.
(3) A determination of an issue in arbitration does not preclude relitigation of that issue if: Excerpts from Restatement (Second) of Judgments, Page 2 of 3
(a) According preclusive effect to determination of the issue would be incompatible with a legal policy or contractual provision that the tribunal in

which the issue subsequently arises be free to make an independent determination of the issue in question, or with a purpose of the arbitration agreement that the arbitration be specially expeditious; or
(b) The procedure leading to the award lacked the elements of adjudicatory procedure prescribed in § 83(2) .
(4) If the terms of an agreement to arbitrate limit the binding effect of the award in another adjudication or arbitration proceeding, the extent to which the award has conclusive effect is determined in accordance with that limitation.
-Comments after about scope, claim preclusion & issue preclusion xiii.
Parklane Hosiery Co. v. Shore, 1979 (70s-80s: perception that litigation clogs cts, trying to kick out cases)

(Stockholders brought suit against corp for issuing a materially false & misleading proxy statement in violation of SEC regs by piggybacking on SEC (&discovery). SEC sued same corp and already won prior to this case. Corp moves for partial sum judge asserting collateral estoppel from litigating issues already resolved against them in the SEC suit)
 Petitioners are collaterally estopped from relitigating the question of whether the proxy statement was materially false and misleading- P can’t use non mutual offensive issue preclus

Offensive use of collateral estoppel/issue preclusion: P seeks to estop D from litigating an issue the D previously litigated unsuccessfully in an action w another party (D lost so P wants to get from D)-here, no (but before this case, outsiders could use previous case to help)

NOT PRECLUDE^ offensive use of collateral estoppel, just grant trial ct broad discretion to determine when it should be applied General rule: Where P could easily have joined in earlier action or if would be unfair to D, tr judge NOT use offensive collat estop
 Defensive use of collateral estoppel: D seeks to prevent P from asserting a claim P previously litigated & lost against another D (D says can’t sue me when you already tried & lost before)
 Defensive okay bcuz prevents P from relitigating identical issues by “ switching adversaries ”
& gives P incentive to join all Ds in first action.
 But offensive BAD bcuz gives bad incentive: P has incentive for “ wait and see ” attitude that
1 st P wins: P can rely on previous judgment against D but NOT bound by judgment if D wins. xiv.
What is the best possible arguments against non mutual offensive issue preclusion^
1.
Could create disincentive for joinder a.
Would encourage sideline sitting (wait and see)- not efficient - parties should intervene if aware b.
Use winning discovery w/o doing work i.
Is this a fair argument?
1.
How do parties act anyways? a.
There is not any causal connection between nonmutality preclusion benefits b.
People could have different injuries - do not want to be joined with a weaker claim
2.
There are already incentives to both aggregate claims or not to aggregate claims
3.
Joinder may make the case stronger to the jury (like in Goldberg v. Kelly)
4.
There is another reason the court's fear of multiple suits: a.
The corporate entity will get a sense of how these cases are going from a few and will settle or will settle early with all
2.
Hypo: Coke bottle explodes when shakes, defective, 3 possibilities:

A. Separate suits by 50 ppl
B. All sue together (Goldberg v. Kelly- more ppl, more compelling narrative & likely to win) & economy of sale, not as expensive for so many ppl on it, and lawyer has min. work possible to extract fee
C. Sue in sub groups
-Want strongest claims litigated first
-Coke might settle so not in the newspaper so everyone sees, not likely to continue litigating after lose first 5 cases
Asymmetric stakes: Coke think the case is worth $20 mil bcuz everyone else might sue, P worth $5 million bcuz don’t care about others suing. Coke values to crush litigants bcuz valued more
3.
Is this unfair for a defendant if it becomes inconsistent with other judgments? a.
Multiple injured party in many jurisdictions i.
The defendant wins in 25 cases but the 26th case plaintiff wins ii.
In theory, case 27-50 could use the one win against the defendant
1.
There is always Rule 59 iii.
But what if the first case is the outlier not the 26th iv.
It benefits nonparties but it cannot hurt them b.
Think about settlement pressures d.
Mutuality i.
Difficult when outsider not present in subsequent case- benefit or suffer from prior litigation?
ii.
Mutuality Doctrine from Parklane: Neither party use prior judgment as estoppel against other party unless BOTH parties bound by judgment- not fair to use it if not bound and violation of due process for judgment to be binding on litigant who was not a party & not opportunity to be heard iii.
Restatement Section 29 Issue Preclusion in Subsequent Litigation with Others
A party precluded from relitigating an issue with an opposing party, in accordance with sections 27 and 28 , is also precluded from doing so with another person unless the fact that he lacked full and fair opportunity to litigate the issue in the first action or other circumstances justify affording him an opportunity to relitigate the issue. The circumstances to which consideration should be given include those enumerated in section 28 and also whether:
(2) the forum in the action affords the party against whom preclusion is asserted procedural opportunities in the presentation and determination of the issue that were not available in the first action and could likely result in the issue being differently determined;
(3) the person seeking to invoke favorable preclusion, or to avoid unfavorable preclusion, could have effected joinder in the first action between himself and his present adversary;
(4) the determination relied on as preclusive was itself inconsistent with another determination of the same issue;
(5) the prior determination… apparently was based on a compromise verdict or findings
(7) the issue is one of law and treating it as conclusively determined would inappropriately foreclose opportunity for obtaining reconsideration of the legal rule upon which it was based;
(8) Other compelling circumstances make it appropriate that the party be permitted to relitigate the issue. e.
Preclusion Against Potential Intervenors (Rule 20 Join, 24 Intervene) i.
When conduct in one suit has a binding effect in another suit?

1.
When does a party lose claims not brought in the original suit?
2.
When is a decision on one issue binding in a suit between the same parties?
3.
When is a party not involved in the suit be involved?
4.
When can a nonparty be bound by a decision in another case?
5.
When are parties bound by the decision of another state? ii.
Martin v. Wilks, 1989
 (Blacks filed case for discrim, then consent decree & 2 sets of white firefighters complained that decrees would operate to discrim against them. 1 st group of whites dismissed but not 2 nd )
 One is NOT bound by a judgment in a litigation in which he is not designated as a party to which he has not been made a party. Everyone has a day in ct. and strangers rights are not concluded to those proceedings. Outsiders do not have a legal obligation to participate in intervention & cannot suffer. (Not on Rule 24 or DP, common law holding based on public policy- not penalized when not intervened, shouldn’t be compelled)
 Ct rejects “impermissible collateral attack” inconsistent w Rule 19 & 24- bcuz Wilks unaware that underlying suit would affect them & if required party, had to join them earlier
 “the law does not impose upon any person absolutely entitled to a hearing the burden of voluntary intervention in a suit to which he is a stranger … Unless duly summoned to appear in a legal proceeding, a person not a privy may rest assured that a judgment recovered therein will not affect his legal rights.”
 Dissent: Sideline sitting, bad & not lawyers responsibility to find EVERYONE who could possibly be affected
 Rule 18 & 24, not forced to join/intervene but consequences if don’t- “red herring”, preclusion imposed by not intervening
 (24a2- could have intervened, public policy desires intervention so not multiple suits, bad to
“wait and see”/ RUSH: bear costs if wrong to wait, own fault. private: don’t want to intervene. Rule makers did make rules to align with public & private interests & back up with sanctions: Rule 11 & 37)
 This & Scott v. Harris: confusing what case is if Civ Pro or not. Here either Title VII case that it authorizes compliance w consent decree so not illegal, or intervention case. Scott: 4 th
Amendment reasonableness case or video evidence discounts need for jury f.
Interjurisdictional Preclusion i.
Constitution: Article 4, §1 : Full Faith and Credit to Domestic Judgments & Fed Statute 28
USC Full Faith & Credit Act & Fed Common Law Sentec
1.
The first judgment rendered by the courts of one state and its preclusive effects being in question in the courts of another state, or in federal courts, or with a federal court having rendered the first judgment and the preclusion issue arising in a state-court system or a different federal court a.
The court system entertaining the second action (F2) is to give it the same preclusive effect - no more, no less - as it would have received if the second case had been filed in F1. F1 preclusion law ALWAYS applies - no gaming b.
Even if state B forbids preclusion and State A allows it, MUST allow it:
Inconsistent w/ policy preference c.
When Forum 1 is a state court, the route to applicability elsewhere of the preclusion law that would be followed in F1 starts with the Full Faith and Credit
Clause of Article IV, Section of the Constitution ii.
Enforcement of Foreign Judgments and Arbitration Awards (Title 9)
1.
Two questions a.
When are US judgments recognized abroad? b.
When are foreign judgments recognized in the US?

2.
Rule of recognition a.
The first question, US judgments are recognized when foreign countries chose to enforce them, normally no force- don’t litigate if won’t enforce abroad anyway b.
You have to look at the other countries actions/law when trying to litigate a case in US court that it will be given preclusive effect in foreign court c.
We did sign a treaty recognizing arbitration from abroad though- FINAL Art 3 d.
A settlement becomes an alternative
3.
Preclusion: No central authority- not uniform, but mostly similar bcuz everyone looking at everyone else. Uniform Statute & R3T 481/482 similar: states have chosen either
4.
Hilton v. Guyot, 1995

Applies Reciprocity Rule, but abandoned in US

2 suits: First in tribunal in France, where French win, but must enforce judgment where assets are located, none in France so come to the US
 US not obligated to recognize France’s judgment bcuz foreign

The court isn’t very thorough in discussing why this law should apply. It never discusses the underlying law that helps to answer that question a.
The court concludes it isn’t required to but it might be a matter of comity of nations- extent to which law of one nation is put in force within its territory & operated within another country- if friends- not a matter of absolute obligation nor of mere courtesy, but of moral duty b.
& utility of convenience to protect settled expectations, finality & waste of resources bcuz already litigated

Satisfied if full & fair trial abroad before ct after voluntary appearance of D, IF NOT
FRAUD, then have final judgment (but here there was fraud)
 Reasons why case shouldn’t be heard:
1. D: P was a member of the ct who rendered the judgment (not fair)
P: He was a former judge, not of this trial
2. D: The tribunal was made up of sea captains, so not real
P: Someone from same field of parties, so US shouldn’t care
3. Fraud: Lied in ct

Reciprocity Rule: Induces other countries to recognize US judgment, asymmetry,
VIII.
Other Finality Doctrines
Uniform & Restatement abolished reciprocity rule tho a.
Law of the Case: When a ct decides upon a rule of law, that decision should continue to govern the same issues, in subsequent stages in the same case b.
Stare Decisis- Precedent effect on other litigation