Civ Pro Online Outline

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Civil Procedure I
I.
 Looking at rules on three levels
Introduction
o Doctrinal level
a. The Scope and Function of Civil Procedure
o Tactical level
i. Civil procedure is a course that covers rules
o Policy level/theory
governing how courts resolve disputes and how
civil
procedure is about choices

litigants behave
Operate
in the legal system

ii. What are the mechanisms at play?
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.
 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: 5th 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?
 POLICY ISSUE at core: RISK ALLOCATION, COST/BENEFITS, JUSTICE
1st Justice: Better to pay ppl that don’t deserve it than cut off ppl who do (state pay)
2nd 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
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
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
 HOW procedure alter effectiveness of substantive rights?
How welfare regime would work most effectively
 HOW procedure allocate risks and costs of litigation among parties?
Better to force taxpayers to subsidize ppl who might not deserve it
 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)
 History: emerges from formal jury common law & flexible judge equity
 Issue Pleading: Narrow sense to single issue to resolve
 Then: Fact pleading: Provide significant detail- quick disposition of sham claims & defenses
 Now: Notice pleading (to D): notice w/minimal detail (easier, potentially more cases brought)
Risk Adverse (Write long vs. write short)—Frames the case
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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)
 (Union railway did nothing to protect the African-American employees against
discrimination bcuz they were discharged and whites took their places)
 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
 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
 (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
 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
 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
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

(Pleading should not be a game of skill, requiring that D a least be put on notice still required)
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”
 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
 Conditions of the mind not have to be pled specifically except with Dura & securities laws
g. Rule 8(b) Defenses; Admissions and Denials
 A party must state in short and plain terms its defenses
 & 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:
 Simple & concise allegations
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i.
j.
 May include hypos/alternate conflicting statements
 May state as many separate claims or defenses as possible, regardless of inconsistency
 A party may join any and all claims against any opposing party (18)
 Joinder of claims is never compulsory
 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)
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
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
 (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
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
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
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
III.
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)
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 separatelyuse it or lose it- part of answer, ONLY compulsory, prevent litigation of same set
of facts)
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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
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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 NONparty liable for all or
part)
2. 3rd Party Defendant’s claims and defenses (MUST assert counterclaim
against 3rd 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
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require add’l claims to be transactionally related. Once FDIC asserted 3rd party
complaint, it can join ANY other claims- Roff should have argued 3rd 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 3rd 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
10
Civil Procedure I
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;
11
Civil Procedure I
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 problemsprotects 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?
12
Civil Procedure I
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 3rd
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 3rd 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
3rd 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,
13
Civil Procedure I
IV.
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;
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?
14
.
.
.
.
.
.
.
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Civil Procedure I
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)
15
Civil Procedure I
a.
b.
c.
d.
e.
f.
g.
h.
No spontaneity - well crafted
Unhelpful in soliciting subjective information
Helpful in getting objective information
Lock people into their stories
You can elicit specific facts
Relate back to pleading - help flesh out a vague pleading
Contention interrogatory
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
Written
Deposition
Interrogatories
Request for
production
Physical/
Mental Exam
Request for
admission
Rule 30; Rule 45
Rule 31;
Rule 45
Rule 33
Rule 34; Rule
45
Rule 35
Rule 36
A1 A party
involved in
the case
A1 Any party
involved
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
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
16
B2 Medical
A1 The truth of
information
any matter
regarding the relating to facts,
mental or
the application
physical
of law to fact, or
condition of
opinions about
the person
either and the
whose health is genuineness of
in controversy
any described
related to case
document
Civil Procedure I
Limits in
number or
frequency
of requests?
Is prior
court
approval
required?
What
response if
party
believes
that the
request is
improper?
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
30a2 If the deponent
31a2If the
A court can
is in prison
deponent is in
allow additional
Leaving the US and
prison
interrogatories
deposition needs to
Leaving the US
that are
occur before the
and deposition
consistent with
permitting time in
needs to occur
Rule 26(b)
Rule 26(d)
before the
/(discovery
If the person has
permitting time
scope and
already been deposed
in Rule 26(d)
limits)
and you are seeking a If the person has
second deposition
already been
deposed and you
are seeking a
second
deposition
30d3An objection
can be made and
will be noted on the
record to terminate
or limit
n/a
B4 You can
object to an
interrogatory
when you state
with specificity
what the
objection is and
it is done in a
timely manner
A2 Yes - the
court must
agree to the
examinvasive to the
body so must
have approval
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
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?
17
Civil Procedure I
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 costsarbitrary 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
18
Civil Procedure I
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 1st
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)
19
Civil Procedure I
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: 7th 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
20
Civil Procedure I
(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
21
Civil Procedure I
vi.
vii.
viii.
ix.
(c) Attendance and Matters for Consideration at a Pretrial Conference
(d) Pretrial Orders
(e) Final Pretrial Conference and Orders* RMR test
(f) Sanctions
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?)
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)
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
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. 11th 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)
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Civil Procedure I
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
testify
d. How Claims can be Dismissed:
1. Party Consent (41)
2. Party in action
55: Default Judgment, D fail to appear
a. 41b: P failure to prosecute, P doesn’t do anything after file it, motivate Ps to be diligent
3. Party misconduct
b. 41b: Failure to comply w/rules
c. 11c: Pleading sanctions
d. 16: Case Management, ordering sanctions
e. 37b2: Sanctions
4. Technical Defect
a. 12: Error in pleading/joinder
5. Substantive Defect
b. 56: Factual: Summ judgment- decide on factual matter to dismiss
c. 12b6: Legal: Failure to state a claim- Ct assumes allegations of the claim are true
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?
23
Civil Procedure I
a.
b.
c.
d.
e.
f.
Prompt resolution: need $$ now more than more $$ later
Reputation: Don’t want out in public eye (secrets out in trial, save relationship)
Psychological effect: distracting to business
Only litigate cases likely to win- reduces litigation costs, ct freed up
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
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
24
Civil Procedure I
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 7th 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 ^^
25
Civil Procedure I
 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 13th 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 4th 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 (4th 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 neededcould 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
26
Civil Procedure I
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 VERDICTsame 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
27
Civil Procedure I
VI.
(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 7th 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
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:
28
Civil Procedure I
(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 MERITSAFTER 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;
29
Civil Procedure I
VII.
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)
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.
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Civil Procedure I
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
 1st suit in municipal ct for $100 & won, 2nd 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 1st case, likely win
2nd, 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 2nd round of litigation- fire all at once or lose it- effect on future cases (7th 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
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Civil Procedure I
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. 1st 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
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Civil Procedure I
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
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Civil Procedure I
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
1st 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:
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Civil Procedure I
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?
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Civil Procedure I
f.
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. 1st group of whites dismissed but not 2nd)
 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: 4th
Amendment reasonableness case or video evidence discounts need for jury
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?
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Civil Procedure I
VIII.
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,
Uniform & Restatement abolished reciprocity rule tho
Other Finality Doctrines
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
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