1 Bloom Civil Procedure Fall 2016 Prerequisites 4 requirements to the appropriate exercise of judicial power Subject Matter Jurisdiction – Article III Subject matter jurisdiction can be challenged at any time by either party or by the court – courts have sua sponte obligation to make sure SMJ not abused o If dismissed for no SMJ, usually dismissed w/o prejudice and can be filed elsewhere Always evaluated first unless lack of personal jurisdiction is the most obvious (Ruhrgas AG v. Marathon Oil Co. - federal court has authority to evaluate PJ before SMJ Federal Question Jurisdiction - § 1331 Well-pleaded complaint rule – a federal question must appear on the face of a well-pleaded complaint. It’s not enough to just have a federal defense or a federal response to a defense o Smith test: A state law claim can be sufficiently “federalized” in nature if: (Smith v. Kansas City Title & Trust Co., articulated in Grable & Sons Metal Prod. Inc. v. Darue Eng. & Mfg.) 1. A state law claim necessarily raises a federal issue 2. Actually disputed and substantial 3. Which a federal forum may entertain without disturbing any congressionally approved balance of federal and state judicial responsibilities (Grable – federal court may have jurisdiction over a state cause of action if the action has a substantial federal component in actual controversy, and federal jurisdiction would not disrupt the balance of labor between state and federal courts Diversity Jurisdiction - § 1332 Amount in question is greater than $75K excluding costs and expenses associated with litigation o To challenge, defendant has to prove worth to legal certainty o Look at what plaintiff reasonably seeks at time of filing, no ultimate reward Winning might matter – might deny costs if less than $75K o If plaintiff isn’t seeking money, court must value the injunction somehow Value of injunction to plaintiff Cost of compliance to the defendant Value of equitable relief to the party invoking federal jurisdiction Complete diversity of citizenship – all plaintiffs diverse from all defendants o What constitutes diversity of citizenship? (§1332(a)) 1. Citizens of different states 2. Citizen of state and foreign citizen Unless foreign citizen has permanent residence and is domiciled in same state as other party 2 3. Citizens of different states on both parties and added foreign parties If you have foreign party on both sides, you need American citizen on both sides 4. A foreign state as plaintiff and citizens of a state/different state o What constitutes citizenship? Individuals – place of domicile Includes permanent resident aliens You have to have citizenship in one state, not just US generally – Redner v. Sanders, where plaintiff could not prove French citizenship and California contacts were not enough to establish state citizenship Time of filing rule – look to citizenship at time of commencement of action – Smith v. Kennedy, where action arose in Kansas but plaintiff moved to Oklahoma and then filed in federal court stating diversity Corps – principal place of business and place of incorporation Principal place of business = nerve center, where corp’s high level officers direct, control and coordinate corp’s activities (Hertz Corp v. Friend) Partnerships – citizenship of every member o If no complete diversity at time of filing, but there was by judgment, then the judgment should stand (Caterpillar, Inc. v. Lewis, LMI (Mass) and Lewis (KY) vs. Caterpillar (IL/DE) and Whayne (KY), Lewis and Whayne settle, Caterpillar files for removal, Lewis objects, LMI and Whayne end up settling) Confined to its facts – court ruled not applicable in Grupo v. Atlas Global Group, L.P., when internal composition of one of the parties changed to allow complete diversity o Constitution only requires minimum diversity, still applicable in interpleader (§1335 and class action fairness) Aggregate claims o Single plaintiff can aggregate claims against a single defendant o Multiple plaintiffs can’t aggregate claims if they are separate and distinct o If one plaintiff independently can satisfy diversity, other defendants can join as long as their claims come from the same case/controversy Supplemental Jurisdiction - § 1367 Test: o 1. Do you have a federal question SMJ hook? Supplemental Jurisdiction never stands alone o 2. Are additional claims sufficiently related to original claim? Common nucleus of operative facts o 3. Discretion under § 1367(c) – ability to refuse to grant SJ Claim raises a novel issue of state law State claims more important than federal claims If original jurisdiction claim is dismissed Other compelling reasons Statute of limitations is paused while in federal court – 30-day grace period after dismissal § 1367(b) – when a court sitting in diversity jurisdiction may not exercise supplemental jurisdiction o Claims made under Rule 14, 19, 20, 24 3 o Meant to preserve diversity and its core requirements Removal Jurisdiction - § 1441 The transfer from a state trial court to a federal district court if the fed court would have original jurisdiction o Must be removed to the district and division where the state action was filed o Venue automatically exists in the district court to which claim is removed § 1446 – how to remove o File a notice of removal If multiple defendants, they all must consent to removal If it’s wrong, then obligation is on plaintiff or federal court to remand it back to state court If no SMJ, no time limit to remand If no personal jurisdiction, then time limit (challenge ASAP) Defendant has 30 days from receipt of summons to remove IF something changes in a case within a year that would validate SMJ, then case can be removed o But if something changes on 364th day, cannot exceed a year – one day to remove Can be removed if fed court would have had original jurisdiction based on diversity or federal question § 1441(b) – removal based on diversity of citizenship o Disregard citizenship of defendants under fake names (e.g. John Doe) o If basis for removal is diversity, none of the defendants can be from the state in which the action is brought § 1441(c) – if both state and federal claims, supplemental jurisdiction questions remain 4 Personal jurisdiction Applicable rules: 4(k) and 12 o 4(k): Reach of federal courts in a state is same as reach, including state long-arm statute 4(k)(2) – if a federal claim, can be instances where no state court would be a reasonable forum o 12: defendants must raise challenges to PJ in their initial pleadings, or else it is waived. If PJ challenges are waived, then the court can exercise PJ Every defendant has to be evaluated separately and independently o Did they consent? Documentation Just start litigating Make a mistake, challenge PJ at the wrong time or in the wrong way – must be at first opportunity Enter a contract that explicitly states consent Hard/exclusive consent – consenting to jurisdiction in one exclusive forum (forum-selection clauses) o Upheld in Carnival Cruise Lines v. Shute, in which Shute injured on a cruise, but ticket had a forum-selection clause saying suits can only be filed in FL and nowhere else Forum selection clause is a good business move Predictability Less confusion – people know rules beforehand Passengers benefit with lower ticket costs since company doesn’t have to pay to litigate all over 5 Soft/nonexclusive consent – okay to litigate somewhere but not the only place they can litigate o If not, determine if jurisdiction still justified Compatible with Due Process? (Pennoyer v. Neff, in which Neff argued against personal jurisdiction b/c he was not in state and did not have property in state at time issue in case arose) Can be general or specific PJ under Due Process Under Due Process, no person is subject to the jurisdiction of a court unless she voluntarily appears in the court, is found within the state, resides in the state, or has property in the state that the court has attached Pertinent state long-arm statute -> Has to be compatible with both of these It is assumed plaintiff consents to personal jurisdiction wherever they file suit o Parties can waive personal jurisdiction challenges If you are a resident of a state, you can be brought to court there even if absent at time of service (Milliken v. Meyer) Minimum contacts test: You can be present in a place you’re not physically if it is determined you have sufficient contacts (International Shoe v. Washington, in which ISC argued they were not subject to personal jurisdiction for the business they conducted in Washington) o Evaluate: Behavior of defendant – did they intentionally engage with the state? Numbers – revenue, employees, etc. How long were they there? o Can force a defendant back to state as long as it is compatible with Due Process o Any assertion of state and federal court jurisdiction must be evaluated according to standards set forth in International Shoe (Shaffer v. Heitner, involving shareholders suing directors of corporation on behalf of the corporation; Heitner owns stock in Greyhound, sues in Delaware where they are located, 28 other defendants not residents of Delaware; Heitner files motion to freeze assets of 21 defendants who do not willingly appear in court, defendants come and contest it as special appearance) In personam – jurisdiction over the person (assets, possessions, status, etc.) In rem – jurisdiction over a thing (house, will, property) Quasi in rem – mix of in personam and in rem, sometimes includes a bait and switch where plaintiff freezes defendant’s assets, forcing defendant to come to state General Personal Jurisdiction Jurisdiction of a person in a place regardless of what happened and where For people: where they are domiciled o Ask where people call home and where they intend to remain o Look at tax filings, drivers’ licenses, voting records For corporations: principal place of business and state of incorporation o Principal place: where executives work, where big decisions are made, nerve center o State of incorporation: where they filed pertinent papers 6 American courts can exercise general personal jurisdiction over defendants when those defendants maintain systematic and continuous contacts with a forum, even if the conduct giving rise to the suit happened somewhere else Specific Personal Jurisdiction Only enough contacts connected to the suit to sue them in this forum Minimum contacts relevant to the case at hand Unfair surprise rule: It must be foreseeable to the defendant that they might be sued in a forum, but foreseeability alone is not sufficient to authorize a state court’s assertion of personal jurisdiction (World-Wide Volkswagen Corp. v. Woodson, in which plaintiffs try to sue auto company in OK state court on their way moving from NY to AZ, suing Audi, Volkswagen of America, and regional distributor and Seaway, both based in NY) o Is an assertion of PJ reasonable and fair? Look to: Burden on defendant of litigating here – more so than usual? Forum state’s interest in adjudicating Plaintiff’s interest in adjudication here – in good faith? Interstate interest in efficient adjudication Shared interest in if PJ in one state will offend policy in another state Purposeful availment – defendant must have availed himself to the privilege of conducting activities within the state, thus invoking the benefits and protections of its laws Is mere awareness that a company’s products might reach a state within the US in the stream of commerce enough for PJ? (Asahi Metal Indus. v. Superior Court, plaintiff sues Cheng Shin, Taiwanese manufacturer of a tube in his motorcycle he says was defective after tire blowout, Cheng Shin brings in Asahi by indemnification, then Cheng Shin settles with man – suit with two foreign companies with very complex international contract) o Purposeful availment (4 justices) Mere awareness is open-ended, too expansive and too unpredictable Fairer to exercise PJ if defendant has intentional contact Foreseeability However, allow companies to shift liability and shield themselves from suit by creating webs of subsidiaries, and it makes sense to sue in location of the injury o Enough for there to be mere awareness of the stream of commerce (4 justices) o -> On test: Argue implications of purposeful availment/mere awareness for given situation Court is still undecided Contacts and reasonableness are on a sliding scale (Burger King v. Rudzewicz, in which BK is suing franchisee defendants in FL court, only contact is one defendant went to BK University in FL, intentionally reached out to FL company to enter into franchise agreement) o With enough contacts, reasonableness is almost irrelevant o Need at least a little of both in specific PJ Calder effects test – okay to exercise PJ over someone who’s never been to a state if they know the effects/harm would be felt there o Makes sense to count contacts inside and outside o For Internet sites – is it passive or active? (Pavlovich v. Superior Court, applying Zippo test, in which Pavlovich created software to decrypt DVDs, doing this in IN and TX, plaintiffs sue in CA but CA says no jurisdiction b/c passive website) Active, doing business with residents in foreign jurisdictions – PJ is proper 7 Passive, just relaying information – PJ improper In the middle – examine level of interactivity and commercial nature of exchange of info Look to see if defendant has (Pavlovich) o 1. Purposefully availed himself of forum benefits o 2. The controversy is related to or arises out of the defendant’s contacts with the forum o 3. The assertion of PJ would comport with fair play and substantial justice o Calder v. Jones – National Inquirer wrote article about Shirley Jones that she took to be libelous, sues in CA, NI located in FL Calder only been to CA twice, but his effects have been felt in CA Don’t need specific jurisdiction if a defendant would have general PJ (Perkins v. Benguet Consolidated Mining Co., et al) Is a suit more like Perkins or Helicopteros Nacionales? o Perkins – Filipino mining corp brought to suit in Ohio, president lived there, bank accounts there, meetings, employees working there Also, suit filed at time of Japanese occupation – Filipino courts were closed Court said presence in Ohio enough for general PJ but not specific – case could move forward as long as it didn’t violate Ohio’s long-arm statute o Helicopteros – Four Texas employees of a Peruvian shell company die in a helicopter accident in Peru, sue helicopter company (Colombian) in Texas No general PJ because no systematic and continuous contacts Purchases, even at regular intervals ≠ in personam PJ If the cause of action does not arise out of or relate to the foreigner’s activities conducted within the forum state, the state may not exercise PJ over the foreigner if the general business contacts by the foreigner with the state are not sufficiently continuous and systematic Tag Jurisdiction If someone is voluntarily in the state for any reason, you can serve them with process and the court in that state will be able to exercise personal jurisdiction over them (Burnham v. Superior Court, in which woman serves husband with process for divorce proceedings while he is in CA visiting kids even though he does not have any contacts with CA besides them) Not applicable when a person is in a state involuntarily o Cannot be duped into visiting a particular place (Wyman v. Newhouse, Voice Systems Marketing Co. v. Appropriate Technology Corp.) o Some jurisdictions limit tag jurisdiction to individuals o Others say it can work for corporations only when service is given to an employee registered with the relevant Secretary of State as the person available for service of process Couldn’t just serve any employee of the corporation Long-Arm Statutes Long-arm statutes can do two things: o Require the same amount of contacts o Require more contacts 8 Must look to the state you’re in to see what the long-arm statute demands o Ex. In Florida – long-arm requires substantial and not isolated activity within the state (Gibbons v. Brown, in which Gibbons a TX resident, Brown a FL resident, car accident in Montreal; Gibbons sues Brown in FL, Brown wants to sue Gibbons in FL) Notice Dictated by Rule 4 – establishes required contents, whom it can be served to and how, waiving service, etc. Notification/materials given to alert defendant about a pending suit against them including pertinent details o Classic ways: In-hand service of process – someone physically delivers materials to defendant Clear and can establish tag jurisdiction Certified mail o Fallback if other two don’t work: notice reasonably calculated under the circumstances that defendant will see it and is done in manner to give them reasonable time to respond Mullane v. Central Hanover Bank & Trust Co, newspaper ads might be valid (wasn’t deemed acceptable in this case, though, when used to notify owners of small trusts what the bank is doing with their money) Jones v. Flowers - unstated SCOTUS requirement that plaintiff should do adequate Internet searches to get address/contact info for defendant In 98% of civil cases, defendant waives right to personal service o Rule 4(d) Money – if defendant declines waiver, defendant has to pay for plaintiff to deliver personal service Time – you get more time to file an answer if you waive notice (60 or 90 days vs. 21 days) – Rule 12(a)(1)(A)(ii) o Just because you waive your right to personal service doesn’t mean you can’t challenge PJ Venue - §1391 Helping courts determine the appropriate forum for litigation Determined by looking at case overall rather than evaluating litigants individually §1391 – civil action may be brought in – (go in order) o 1. Judicial district in which any defendant resides as long as all defendants live in the same state in which district is located Corporations reside in any and every district in which they would be subject to PJ If one corporation does not reside in the same venue as another corporate defendant, then go to (2) Venue provides no protection for foreign defendants o 2. Fallback: Where substantial part of events/property is Residence doesn’t matter in this case (for individuals or corporations) o 3. Fallback: anywhere there could be personal jurisdiction for any defendant 9 Why? o Fairness o Efficiency Venue can be waived if you don’t bring it up at first possible opportunity Procedural Considerations Before Trial Transfer and forum non conveniens Transfer § 1404 – moving of a case from one district to another Presence of an alternative and acceptable federal court In the interest of justice and is convenient to parties and witnesses o Interest of justice usually regards what laws will apply regardless of location When you transfer a case, the law from the original forum moves with the case o Ferens v. John Deere, upheld a plaintiff’s forum shopping when he filed in Mississippi to take advantage of a longer statute of limitations, and then had it moved to Pennsylvania where the court would have had original jurisdiction When a plaintiff transfers a case from one venue to another under § 1404(a), the choice of law rules of the transferor jurisdiction applies Forum non conveniens Presence of a valid alternative forum elsewhere, usually outside the US o Doesn’t have to be equivalently favorable to the plaintiff Evaluate public and private interests o Interests of forum: Administrative difficulties because of court congestion Interest in local controversies heard locally Interest of diversity case in home/forum of governing law Avoidance of unnecessary conflicts of law or in application of foreign law Unfairness of burdening citizens in unrelated forum with jury duty o Interests of litigants Ease of access to sources of proof Availability of compulsory process for attendance of the unwilling Cost of obtaining willing witnesses Possibility of view of premise, if view appropriate Any other practical problems that make trial easy, fast and inexpensive 10 Erie Doctrine When federal courts are answering questions of state law, apply state law (§ 1652) Swift v. Tyson, - applying the law of the Several States did not include applying state common law o Swift leading to bad behavior Black & White Taxicab v. Brown & Yellow Taxicab, - B&W reincorporated in TN to sue B&Y in federal court because fed would rule in favor disregarding common law o Constitutional problems with Swift Took power away from states that federal government shouldn’t have Separation of powers – federal courts only allowed to make law where Congress cannot o Philosophical problems Swift based in natural law, Erie takes positive approach Erie Railroad v. Tompkins overruled Swift, federal court sitting in diversity must apply substantive law, whether statutory or common law o Tompkins walking along railroad tracks and is hit by a door, arm gets severed Each state has choice of law rules, which federal courts must apply (Klaxon v. Stentor) o Many follow lex loci – law of the location of the event o Lex fori – law of the forum where the action is filed 11 York’s Outcome Determinative Test (not good law) – will following state rule significantly alter decision? (Guaranty Trust Co. v. York, a bond dispute filed in federal court of NY, raises state claims, could have been filed in state court but had passed statute of limitations) o If yes, federal court has to follow it o If no, court can do whatever it wants o -> Over-inclusive: everything is outcome determinative Byrd test – figure out if state law is about rights and obligations or forms and modes o RO: follow state law Semtek – federal courts hearing state law claims in diversity should apply the claim – preclusive effects of the state law in which court sits Semtek sued Lockheed for contract and tort claims in state court, Lockheed removes to federal court and then moves to dismiss o Dismissed in federal court to try to avoid CA’s preclusion rule o Courts decide 41(b) (dismissal) doesn’t apply and thus isn’t codified -> Byrd test o FM: do what they want, balance state and federal interests State interests = outcome-determinative effects; the larger the effects, the weightier state interests o Byrd v. Blue Ridge Rural Electric Cooperative Byrd gets hurt while working as construction man in South Carolina, not employed directly by Blue Ridge State substantive law would dictate employment status In SC, judge decides status based on laws, and SC states no reason why judge picked for this Hanna test – When there is a conflict between state and federal law, look at codified federal law o Is it compatible with Rules Enabling Act? (§2072 – SCOTUS can dictate rules of practice, procedure and evidence for fed courts but cannot be substantive rules or modify any substantive right) If substantive and thus incompatible: Rule is invalid, apply state law Privileges are substantive, apply state law (see pg. 22) If procedural and thus compatible: Is it compatible with Erie’s twin aims? o Discouragement of forum shopping to exploit gap in law o Discourage inequitable administration of laws Spoliation requirements not substantive, fed courts can apply own rules (see pg. 25, Silvestri) If it’s not clear what state will do, make Erie guesses o Sometimes states accept certified questions from federal court to clarify o If fed guesses and is wrong, may or may not get to refile case after state clarifies 12 Pre-Trial Pleadings Background Info Type of Pleadings o 1. Common law pleading (old version) Had to form complaint to one of 30 pre-existing writs Limited to one claim and one defense o 2. Field pleading (minority jurisdictions) State claim and facts constituting a cause of action -> Puts obligation on parties to talk about facts right at beginning, which they might not have access to until discovery o 3. Notice pleading (majority jurisdictions) 13 Goal is just to put everyone on notice and get the ball rolling Rule 7 – types of pleadings allowed (close-ended list) o 1. A complaint – claim for relief Pleading can be a reply to an answer (Rule 7(a)(7) – very rare) Likely when judge anticipates 12(c) motion Notice pleading’s purpose isn’t to litigate it all out in pleadings o 2. An answer to the complaint, see more pg. 15 o 3. Counterclaim(s) – when defendant seeks relief from plaintiff New claim for relief, not an answer/motion You have to answer original claim still 13(a) – compulsory counterclaim – time defendant has to sue plaintiff back If countersuit grows out of some event that created original claim Unless it would require adding parties court wouldn’t have jurisdiction over Why? o Efficiency o Consistency in judgment If you don’t bring claim here, right to sue over this is waived 13(b) – party may bring a counterclaim not compulsory, but mandatory o 4. Answer to counterclaim(s) o 5. Crossclaim(s) – people within same party suing each other 13(g) Can bring crossclaim if it arises out of same occurrence o 6. Answer to crossclaim(s) o 7. Third-party complaints and answer Rule 10: Form of Pleadings Rule 8(a): Claims for relief, general rules o Pleadings must include three things: 1. Short and plain statement on why court has jurisdiction 2. Short and plain claim as to your entitlement to legal relief 3. Demand for judgment Optional: demand a jury trial o Parties usually don’t keep it short and sweet – why? Goal is to educate the court with the most compelling story possible Pleadings form the case and possible settlements Discovery is influenced by what’s in the pleadings Limits – Rule 11 as a counter to Rule 8(a)(3) Rule 8(a)(3) – you can plead different and inconsistent things o Why? Fairness and facts Discovery hasn’t happened yet, parties don’t know all the facts Wouldn’t be fair to not allow parties to plead in alternative o -> Still have to have some facts under claims (per Iqbal) However, at some point pleadings cannot continue to be inconsistent o Rule 11 - check against rule 8(a)(3), empowers courts to discipline misbehavior rather than relying on an outside process You can be wrong, but you can’t be fraudulent, lie, etc. 14 Covers written papers to the court (motions, pleadings, etc.) Doesn’t cover discovery or other misbehavior (Christian v. Mattel, sanctions for not properly investigating, but no R11 sanctions for acting inappropriately during discovery) Purpose of Rule is to deter behavior of this person and similar people 11(a) – requires signature by attorney (or party if unrepresented) o Signature is a pledge that you’re adhering to rule to best of knowledge, information and belief are based on reasonable inquiry under the circumstances You can be wrong, but you can’t lie or be lazy Ex. Walker v. Norwest Corp. - R.11 sanctions because attorney failed to plead complete diversity of citizenship and actually pleaded facts indicating there was not complete diversity An attorney has a duty prior to filing a complaint to conduct a reasonable factual investigation and to perform adequate legal research that confirms whether the theoretical underpinnings of the complaint are warranted by existing law or a good faith argument for an extension, modification, or reversal of existing law (Christian v. Mattel) Rule 11(b) – signature certifies that: o 1. It is not being presented for any improper purpose o 2. The claims, defenses, and other legal contentions contain at least tenable legal arguments o 3. Facts are rooted in evidentiary support or will likely have evidentiary support after reasonable discovery or investigation o 4. Denials warranted on the evidence or are reasonably based on belief or a lack of information Rule 11(c) – routes through which sanctions can be imposed o 1. By motion - (c)(2) 1. Proceeds like any other motion 2. Differences from other motions: Have to be specific about behavior Has to be a separate motion o Can file at same time o Drives number of these down – have to pay separate filing fee 3. Have to give copy of motion to party 21 days before filing with the court Gives them a chance to correct R11 sanction motions become public record – bad for reputation o 2. Court can initiate proceedings on its own Must issue order to show cause – show why you shouldn’t be sanctioned for things court deems inappropriate Fix or explain errors – depends on judge’s mood What can sanctions be? Up to court discretion o Money – not against party under 11(b)(2) unless by court’s own discretion and they issue order to show cause – that’s what attorney is for 11(b)(2) regards claims having tenable legal basis However, can sanction party for (b)(1), (3), and (4) o Injunctions 15 o o o o Dismissal of claims, case Letters of apology CLE Whatever else the court wants Answers and Pre-Answer Responses Pre-Answer motions Rule 12(b) defenses If you file pre-answer motion, you don’t have to immediately file an answer o Filing this buys you time to craft your answer o Filing has to be based in law/fact, otherwise at risk of violating R.11 Bring up PJ, venue, service of process ASAP otherwise waive right to challenge o SMJ, 12(b)(6) don’t have to be brought up ASAP – can bring them up in responsive pleading 12(h)(1)(B)(ii) 12(b)(6) – motion to dismiss for failure to state a claim o Flip side of 8(a)(2) – short and plain statement as to entitlement for legal relief Enforcement mechanism for 8(a) to make sure plaintiffs are following the rules o Often filed before responsive pleadings as a pre-answer motion o A court should grant a 12(b)(6) motion if the plaintiff can prove no set of facts in support of his claim which would entitle him to relief (Haddle v. Garrison, employee who was suing Healthmaster because he claimed he was fired only because he testified in the company’s fraud investigation) o To use: Show that the facts are wrong; OR Show that the law is not applicable Old standard for surviving motion to dismiss: Conley v. Gibson (1957) o -> A complaint is sufficient as long as plaintiff sets forth an assertion upon which relief may be granted, and specific, detailed recitations of fact are not necessary to survive a motion to dismiss Tilted heavily in favor of plaintiff because it tolerates false positives – let in more bad cases instead of keeping out more good cases o Case with African-American employees suing union after it wouldn’t help them when they were all laid off New standard for surviving motion to dismiss: Twombly & Iqbal o A complaint will only survive a motion to dismiss if it alleges non-conclusory facts that, taken as true, state a claim to relief that is plausible on its face Plausible, not just possible Plausibility not defined other than more than just possible Include enough facts to demonstrate this Hurts plaintiffs who are starting at an informational disadvantage o Consequences 1. 12(b)(6) system destabilized – lacks clarity and guidance, many upset about it 2. System has shifted from false positives to false negatives 16 Some good cases getting kicked out to avoid bad cases getting in 3. 40 states were following Conley, now what do they do? States are messy – forum shopping now, Erie question 4. Makes it harder to get into federal court o Circumstances of cases: Bell Atlantic Corp v. Twombly (2007) – price-fixing of Internet and phone service providers, leading to mini monopolies Really difficult to prove especially without discovery Ashcroft v. Iqbal (2009) – Iqbal claims he was arrested and denied his constitutional rights because of race/religion in a plan orchestrated by Ashcroft and Mueller of FBI Defendants file 12(b)(6) motion and win because allegations conclusory in nature Answers If any pre-answer motions are dismissed, then you have to file an answer o 21 days to file an answer, 60 if you waived the right to formal service of process What goes into an answer? o 1. Respond to any allegations made against you 8(b) o Bring up any pertinent affirmative defenses 8(c)(1) 1. New facts that case different light on case 2. Open-ended list of possible affirmative defenses Plaintiff’s claim has already been settled Arbitration and award Assumption of risk Contributory negligence Duress Estoppel Failure of consideration Fraud Illegality Injury by fellow servant Laches License Payment Release Claim already litigated elsewhere (res judicata) Statute of frauds Statute of limitations Waver; etc. 3. If you want the court to consider it, plead it Three options in responding to allegations o 1. Admit o 2. Deny Fact denials have to be based in good faith to avoid R. 11 sanction 17 A general denial is ineffective if some of the claims denied are true and not at issue (Zielinski v. Philadelphia Piers, Inc., in which Zielinski sues after collision between his forklift and one Sandy Johnson was driving, required showing that Johnson worked for PPI, which was only leasing the dock; Johnson worked for others unbeknownst to him, so Zielinski accidentally sued the wrong party) o 3. Disclaimer – temporary denial based on lack of info Serves purpose of denial o Failure to respond to allegation = taken as admission Heightened Pleading Exhaustion is an affirmative defense that must be plead and proved by the defendant (Jones v. Bock - inmate sued for deprivation of Due Process as prisoner, have to prove he tried internal grievance system mandated by Prison Litigation Reform Act before he can sue in federal court) o 4 reasons to not place the burden on plaintiff 1. Text and legislative history in Jones didn’t mandate it 2. Look at the rules 8(a) is a closed-ended list, but affirmative defenses are an open-ended list – it would be absurd to demand that plaintiffs raised all potential affirmative defenses in pleadings 3. Low-risk – just have to add one sentence to defendant’s boilerplate answer 4. Court doesn’t want to heighten pleading requirements on plaintiffs unless it’s clear Congress wants them to Rule 9(b) – if you sue for fraud/deceit/misrepresentation, you have to plead some things with particularity o The what, how, when, where – circumstances constituting the fraud Particularity = be specific about the facts, not short and plain See Stradford v. Zurich Insurance Co. - defendant had to fix pleading and refile because they failed to be specific about the facts regarding plaintiff’s fraudulent insurance claims (Dentist who didn’t consistently pay and then filed insurance claims) o Can state “why” generally Malice, intent, knowledge, conditions of person’s mind o Why do we have this rule? Need more evidence for fraud and have greater consequences Personal and potentially damaging charge Amendments What if you incorrectly label things in pleading? o R8(c)(2) – court must treat pleading as though correctly designated if justice so requires (Forman v. Davis) Parties can adjust as needed for maintaining fairness If you realize you made a mistake in pleading: o 1. Do nothing, hope defendant doesn’t file 12(b)(6) o 2. Amend pleading if you can Changing contents of your pleadings 18 Fairness, notice, justice Courts don’t want cases dismissed simply because of procedural technicalities Only unacceptable if it will prejudice other party o Burden is on party opposing amendment to show permission shouldn’t be granted Rule 15: Amended and Supplemental Pleadings, applies to all pleadings o A – Amendments before trial You can amend pleading once within 21 days after serving, being served CFR or 12b motion Otherwise, need permission from other party or court A party may amend his pleading only by leave of court or written consent of the adverse party and leave shall be freely given when justice so requires (Beeck v. Aquaslide ‘N’ Dive Corp., case in which plaintiff injured on waterslide, sues Aquaslide b/c he thinks they made the slide, which they confirm in pleading after three insurance companies confirm, but then the President inspects the slide and says it’s not theirs) Other party also gets a chance to amend o B – Amendments during and after trial Can amend so pleadings reflect what happened at trial For appeals o Without it being in pleadings, appeals court won’t consider it o Easy for future audience to know what happened o C – when you can amend pleading after statute of limitations has run, but original pleading was timely (“relating back”) 1. When statute of limitations explicitly allows relation back 2. When you sued wrong person accidentally and correct defendant knew or should have known about suit 3. Claim arose out of conduct, transaction or occurrence set out in original pleading Ex. Finding more common law relevant to your case o D – supplemental pleadings after they’ve been submitted, if what you’re adding happened after you filed original pleading Court Management – Rule 16 Rule 16: Pretrial Conferences; Scheduling; Management o A – purposes of pretrial conference, such as: Expedite action Establish control Discourage wasteful pretrial activities Improve quality of trial Facilitate settlement Allows court to manage litigation (relieve docket pressure) o B – Attendance and matters for consideration at pretrial conference Attendance is mandatory List many matters that can be discussed 19 Courts have wide discretion for what to discuss o C – Final pretrial order may only be amended to prevent manifest injustice (Monfore v. Phillips – last-standing defendant after all others settled didn’t get to change trial strategies because unfair to plaintiff) Judge has wide discretion to grant or deny permission for a party to change her theory during trial (McKey v. Fairbairn – party wanted to change her theory from negligence to violation of housing regulations during trial o D – if parties don’t obey substance of pretrial conference, they can be punished by sanctions Ex. Sanders v. Union Pacific Railroad Co. – Sanders’s counsel didn’t attend to any pretrial requirements, dismissal was appropriate because judge had no other choice to make alternative arrangements or take other actions to put case back on reasonable schedule, so no sanction besides dismissal was available How much court involvement is enough? o R. 16 seems to allow judges to answer this for themselves Discovery 3 basic types of discovery Automatic disclosures Things you have to give to party automatically without other party/court demanding you do so o R26(a)(1)(A) – default, but parties or court can specify otherwise (sometimes encouraged to opt out of default rules) 1. Name and info of people with discoverable info that might help your case 2. Copy of documents/tangible things that might help you 3. Damage computation and supporting materials 4. Pertinent insurance policies o Witnesses If experts, copy of expert report (see pg. ___) Supplemental requirement – add to list as you find more witnesses o Obligation to update automatic disclosure ad things change o R. 26(a)(1)(B) – exceptions that don’t have to follow 26(a)(1)(A) An action for review on an administrative record A forfeiture action in rem arising from a federal statute A petition for habeas corpus or any other proceeding to challenge a criminal conviction or sentence An action brought without an attorney by a person in the custody of the United States, a state, or a state subdivision An action to enforce or quash an administrative summons or subpoena An action by the US to recover benefit payments An action by the US to collect on a student loan guaranteed by the US A proceeding ancillary to a proceeding in another court An action to enforce an arbitration award o Have to start automatic disclosure very early – within 14 days after parties’ Rule 26(f) conference unless otherwise determined by the court 20 o Scalia dissented to 1993 amendment that included these things (of course he did) Contrary to nature of adversarial system – up to parties to seek info and argue Requires sharing and cooperation Lawyer’s skills are helping the adversary by doing their work for them Having to disclose relevant info instead of just pertinent info is burdensome Since, rule has changed so you only have to turn over stuff that will help you Formal discovery devices Type Oral depositions Rule Scope 30 Any person Costs/benefits - Very expensive and cumbersome - Can ask follow-up questions and assess other party’s demeanor - Can depose a corp, designate an appropriate person for deposition Written depositions 31 Any person - Cheap to ask - Can serve on corp, need good person for it - No follow-up questions or assess demeanor Interrogatories 33 Parties only - Can’t ask follow-up questions or assess demeanor - Use interrogatory on party you later depose as long as interrogatories to a party Details - Method to ask and get answers - Often last discovery method - To polish up trial strategy - Deposee sits in room with attorneys, asked questions under oath with court reporter - No judge unless things wildly contentious - Can combine depos with request to produce if against a party, can combine against nonparty if you get subpoena - Have to object at time to preserve it for later - If based on relevance, client still has to answer question - If based on privilege, client doesn’t have to answer - Method to ask questions and get answers - Parties write out bunch of questions, send to depose, also sends to all other parties so they can see what’s being asked - Often last discovery device to be resorted to - Method to ask questions and hopefully get answers - Written questions - Answers under oath Limits - 10 depositions total unless you request and receive more (court can also say you don’t get all 10) - Have 7hrs over one day - Need more, have to ask other party first and then court - 10 depos total unless you request and receive more (courts can also give you less than 10) - Can only ask 25 questions including sub-parts unless you ask and receive more - Have 30 days to respond unless you ask and receive more time 21 Requests to produce 34 On another party only - Can be expensive for complying party – If request too vague, then other party could give you everything you request – paper you to death Requests for admission 36 Parties only and only for this case - Reduces amount of issues to be sorted out in trial - Relatively cheap to both deliver and respond Mental/physical 35 examinations - Asking for documents and other tangible things - Must file objections in writing - Has to be relevant to case – can’t just go on fishing expedition - Normally have 30 days to reply (can ask for more time – ask other attorney first, ask court as last resort) - Party can admit them, deny them or disclaim them (similar to answers, disclaimer works as a temporary denial) - If you don’t reply at all, it’s counted as admission - Can be about facts or law - The least used discovery device today Parties - Very personal, so Test: only, or higher threshold of - Issue has to be in controversy those in requirement of - Result of the inquiry will affect the showing (always need determination of the case on the custody court preapproval) merits -> look at pleadings; AND or - Good cause to perform exam control of Physician/professional (make affirmative showing that a party if chosen by adversary examination would be useful, not it’s conducts the just mere speculation) necessary examination More on Mental/physical examinations o If a party does not assert his mental or physical condition either in support of or in defense of a claim, an opposing party that moves for mental or physical examinations must affirmatively show that the party’s mental or physical condition was in controversy and that there is good cause for the examinations (Schlagenhauf v. Holder, bus driver who rear-ended tractor-trailer, defendants wanted several different mental and physical examinations done on him) 3 options in Schlagenhauf: 1. Just declare R.35 unconstitutional if other party requests it (court does not agree with this) 2. The rule itself only allows examinee to bring it up o Rule specifically says a party, nothing requiring only examinee to bring it up 3. Be more careful about conducting examination at request of other party-court’s opinion 22 o 35(b) Examiner’s report Requesting party first to get the report Other party can request a copy of report, requesting party must deliver Mutuality provision – if report delivered, delivering party can request exams done by deliveree on or before that date pertaining to the condition in question Reciprocal, comparable conditions Informal Discovery Do reasonable inquiry – ties back to R.11, failure to do so can result in sanctions Purposes of discovery o 1. Information gets out to parties and court More information = better litigation o 2. More info shared, more you can narrow down issues to resolve at trial No surprises o 3. Will facilitate end of litigation Make it less likely we’ll get to trial Encourage settlement – changes what we think outcome of trial could be Limits Why do we have limits? o Parties would gain access to things they shouldn’t have Inconvenience to your adversary in terms of time and money o Discovery would go on forever Burden on enforcing limits is on parties o Discovery is largely self-executing 1. Relevance o Parties get to decide what’s relevant and parties can only discover things that are relevant Probative and material Tendency to prove/disprove something material, no matter how small How do we know what’s material? – pleadings, substantive law o Judicial review of administrative agency is confined to the grounds, upon which the record discloses that the action was based (Steffan v. Cheney – Naval Academy students discharged for saying he was gay, sued for wrongful discharge, all record contained was things he said, nothing about anything he did) Doesn’t have to be admissible in court 2. Rule 26(b)(2) – requests have to be appropriately tailored o Discovery overly burdensome, duplicative o Time, place and substance -> can’t ask for too much 3. Proportionality to demands, costs, needs of case o Hasn’t been in lay for more than a year 4. Privilege – shield against discovery because of communication o Communications are privileged, not the facts Self-incriminating (can be used in civil cases, but can have negative consequences) or said in particular context 23 Attorney-client, doctor-patient, spousal testimony, marital confidences, clergy-pertinent Privileges are substantive – fed courts in diversity apply state privilege law o Privilege matters even when info would be relevant o Why? Encourages honesty between parties in particular relationships Utilitarian: society benefits when you tell these people things Need to have some things outside reach of government o Privilege can be waived by the holder of privilege (i.e. the person seeking assistance or advice) How do you waive privilege? Just answer question, say what you said in privilege Completely by accident o 26(b)(5)(B) – can claw back privileged information accidentally released (but how effective is this really?) Bring up the facts o Ex. If suing for emotional distress and that he goes to therapy, communication to doctor might not be privileged o Ex. Suing attorney for malpractice 5. Privacy – if disclosure would be annoying, embarrassing or oppressive (26(c)) o A court may enter a protective order upon a showing of good cause to protect a person from annoyance, embarrassment, oppression, or undue burden or expense, if the inquiry is into areas clearly outside the scope of appropriate discovery (Stalnaker v. Kmart Corp., when plaintiff suing for sexual misconduct and wants to ask about workplace environment, defendant asks for protective order to exclude questions about consensual relations) Anyone can seek protective order if it will annoy, oppress, embarrass or vex someone If you want protective order: 1. Ask the other party first – meet and confirm 2. Show good cause – particular, specific reasons to grant o Courts have wide discretion to grant these Flipside of 26(c) is motion to compel 37(a) Meet other party first and confirm Good cause 6. Court discretion o Lots of authority to change discovery in certain cases Federal courts schedule deadlines, meetings, timing, etc. Court controls amount and numbers Courts resolve discovery disputes if necessary o Federal attorneys are often repeat players – if judge respects you, might let you have more power in discovery 7. Work product doctrine o No discovery of documents, tangible things prepared in anticipation of litigation or for trial Must be a case, even if not filed yet, that you can frame in some way 24 o Who can do the preparing? Attorney or anybody participating in provision of legal services o UNLESS 1. Otherwise discoverable 2. Substantial need – not just relevant 3. Can’t obtain sufficient substitute without undue hardship If you can show all three – you get access to facts – written statements, private memoranda, personal recollections (no mental expressions, etc.) Hickman v. Taylor – opposing counsel barred from collecting interview transcripts attorney executed after sinking of a towing car boat b/c opposing counsel could easily just interview the survivors themselves Attorney’s mental impressions, thought processes, opinions, or theories are NEVER discoverable o Can always get copies of your own statements (26(b)(3)(C)) o Claw back provision applies here too Experts – R. 26(b)(4) Experts don’t have to have formal education on subject 26(b)(4) divides experts into two groups o A. Experts you expect to testify Report is included in automatic disclosure Complete statement of all opinions the witness will express and the basis and reasons for them Facts or data considering by witness in forming them Any exhibits that will be used to summarize or support them Witness’s qualifications, including a list of all publications authorized in the previous 10 years List of all other cases during previous 4 years witness testified as expert at trial or deposition Statement of compensation to be paid for the study and testimony in this case 26(a)(1) & (2) list experts and witnesses Tell what expert is testifying on and give opportunity to depose If > 10 experts, can ask opponent or court for more depositions o B. Experts not expected to testify R. 26(b)(4)(D) No discovery of facts known or opinions held by expert retrained in anticipation of litigation or for trial Why? Don’t want other party to piggy-back/free-ride on work of adversary Less reluctant to seek expert advice Experts might be more likely to participate if they don’t have to testify Exceptions: R. 35(b) – examinations, mutuality provisions Exceptional circumstances, impracticable for you to get similar info by other means 25 o Under Rule 26(b)(4), facts or opinions held by expert retained in anticipation of litigation may be discovered on party’s showing of exceptional circumstances warranting disclosure due to impracticability of obtaining facts or opinions on the same subject by other means (Thompson v. The Haskell Co. – plaintiff suing for sexual harassment, psychological report made 10 days after employment termination is discoverable because it’s the only one of its kind – can’t replicate that info now that a lot of time has passed since termination) o Don’t get to discover facts or opinions of experts just because you failed to do reasonable inquiry (Chiquita International v. M/V Bolero Reefer – bananas left on dock in Ecuador, trip to Germany took 3 weeks, both parties had enough time to plan to get expert in Germany to investigate cause, so Reefer can’t discover Chiquita’s expert report on the manner) Compliance & Abuses Protecting Discovery – Sanctions Why do we need rules to protect discovery? o 1. Discovery rules aren’t perfect – leave gaps for strategy Need overarching rules to fill gaps o 2. Reality of litigation – doesn’t always favor good behavior o 3. Function of discovery goes on without a lot of court involvement Courts aren’t happy when they have to intervene Two main discovery rules o 1. 26(g) – looks like R.11, but 11 is all about written materials Every discovery request has to be signed Signature is pledge that you’re proceeding in good faith No signature = you can ignore it Failure to do so = court can initiate or opponent can move for sanctions o Often monetary sanctions Only sanctions mandatory and available immediately Just have to show that disclosure was wrong o Unless substantially justified o 2. Rule 37 A. Motions for order to compel Court may, not must Discretion over extent/kind of sanctions B. Failure to comply C. Failure to disclose, supplement or admit D. Failure to comply with discovery motion Spoliation Spoliation is before discovery, sometimes before suit o Not covered by 26(g) or 37 26 Comes from inherent power of the courts Judge can sanction party for spoliation at his discretion (Zubalake v. UBS Warburg LLC – plaintiff sued employer for gender discrimination, says big piece of evidence was in emails that were backed up, tapes lost even though company policy was to retain emails and the company was under direction to save emails) o Spoliation = act of altering, destroying or failing to preserve property or evidence for pending or reasonably foreseeable litigation Ex. Silvestri v. General Motors Corp. – plaintiff waited years to sue GM over what he claimed was a faulty airbag, but after the accident his attorney hired accident reconstructionists. By the time of suit, car was fixed and had a new owner so GM couldn’t examine evidence on their own, considered spoliation b/c Silvestri knew he wanted to sue but still got rid of evidence You can get sanctioned for spoliation if you had a duty to maintain the evidence and you breached that duty th 4 Circuit (Silvestri) says spoliation requirements not substantive, so fed courts can apply own rules Why do we have spoliation rules? o Behavior by parties – discourage misbehavior o Integrity of judiciary lost because results a consequence of cheating o Hope to deter this behavior Trial and Alternatives Resolution without Trial Lots of disincentives to go to trial o Expensive for parties and court Time, money, energy o Risk – uncertainty, lack of control Dismissal R. 41 – Dismissal of Actions o A. Voluntarily – plaintiff wants to dismiss own action By the plaintiff or by stipulation Notice of dismissal before adversary serves an answer or a motion for summary judgment 27 Stipulation for dismissal when we’ve come to a settlement agreement 1st voluntary dismissal is without prejudice By court order o B. Involuntary motion – filed by defendant When plaintiff has essentially become inactive On the merits Default R. 55 – if defendant doesn’t engage, you can lose on the merits o A. Entering default Clerk must enter default if you can show defendant has failed to plead or defend and you can show it by affidavit For any party Plaintiff could fail to answer a counterclaim o B. Entering default judgment By the clerk – when defendant has never shown up It’s an obvious amount to be awarded (money) Defendant not a minor or incompetent By the court – in all other cases Appear but not defend o C. Setting aside a default or a default judgment Any good cause for default (relatively easy) Courts generally reluctant to leave default in place because it’s so easy to set it aside Ex. Peralta v. Heights Medical Center – just because court felt Peralta would not have a meritorious claim doesn’t mean he doesn’t have the right to handle his suit o Didn’t get reasonable notice, so they seized his property and sold it for $80K to satisfy a $5K bill he owed as guarantor to hospital bill o Can’t assume what will happen Under Rule 60(b) for default judgment Generously applied categories Settlement/Alternative Dispute Resolution Alternative Dispute Resolution Arbitration o Creature of contract and arbitration agreement o Federal Arbitration Act Pro-arbitration stance o Confidentiality and control Settlement Most cases (~80%) settle Advantages and disadvantages of settlement 28 o Faster and cheaper than trial, control risks, justice in consensual outcome, more flexibility and ability to shape the terms o Relives docket pressure, systemic advantage o Exacerbates financial inequality between parties Wealthier party can afford to gain advantage, buy their way out of the law o People want their day in court People more likely to respect outcome if they feel they were heard o Systemic cost – less case law developed, less precedent Attorneys also play a role – their priorities play a role in client settling You memorialize a settlement by written contract o Load it up with detail, make it as expansive as possible Settlements fall under Full Faith and Credit in every other court in US – settlement in one case can preclude other claims (Matsushita Elec. Industrial Co. v. Epstein, involving two class actions, one settlement included global release of all claims, including the second pending case even though second had exclusively federal jurisdiction) Settlement agreements can include confidentiality terms However, facts leading to settlement are not and may be discoverable if relevant in another case (Kalinauskas v. Wong – plaintiff allowed to discover facts from previous sexual discrimination suit against same employer in her case for sexual discrimination, but she could not discover about settlement amount, etc.) o Oral settlements typically unenforceable If you settle a pending case, can do so under Rule 41 o Parties usually ask court to style it as 41(b) dismissal so it’s dismissed with prejudice If you come to settlement agreement and are never paid, you can sue for breach of contract o To ensure same court has jurisdiction, have court order dismissal -> always have jurisdiction to enforce own court orders Especially when settlement in federal suit (~contract law is state law~) Summary Judgment Almost the same in every state R. 56 o A. motion for summary judgment or partial summary judgment Who: any party or the court on its own initiative – Rule 16 About what: any claim or defense, one, multiple or all How do you win: show that there’s no genuine dispute as to any material fact If we already know who’s going to win on this issue o Ex. Bias v. Advantage International, Inc. – defendants won because even if agent didn’t get Bias a jumbo life insurance policy, the insurance company wouldn’t have issued a policy because Bias was a cocaine user, and had the agent gotten the policy, Bias’s parents couldn’t have gotten money since he died from overdose Genuine issue = legitimate dispute and real basis for disagreement 29 o Court could come out either way on issue o SJ about could a reasonable jury find in favor of moving party, not should a jury find in favor Should = judge imposing own sense of merits o B. Time to file a motion Until 30 days after the close of all discovery Can’t file summary judgment until there’s a case Can file the day you’re served, though o Ex. If someone sues in violation of a settlement agreement Witness credibility is a question for the finder of fact, so it’s hard to show no genuine dispute so long as testimony contested Obligations at summary judgment synonymous as at trial o SJ substitutes jury verdict To determine if SJ is appropriate o 1. What are the elements of the disputed claim and who bears the burden of proof? What you have to do to win summary judgment is same as what would happen at trial Moving party has to show that a reasonable jury would only come out their way o 2. Has the moving party made a sufficient showing that there’s only one reasonable outcome on this claim? How? If you don’t carry burden: Absence of evidence (poke holes in other’s claim), or affirmative evidence of your own o If you wouldn’t carry burden at trial, you don’t have to make claim with affirmative evidence (Celotex Corp. v. Catrett, asbestos suit, Celotex says they were not source of exposure, move for summary judgment, to survive Catrett would have to show all elements of negligence by preponderance of evidence) o Has to be evidence that would be admissible at trial No conclusory allegations Summary judgment evidence should be viewed drawing all reasonable inferences toward the nonmoving party Summary judgment isn’t for courts to say what they think will happen, but when they can objectively tell there’s only one reasonable outcome If you carry burden: Prove all elements with affirmative evidence o 3. Nonmoving party gets to dispute summary judgment motion by poking holes, filling gaps, presenting evidence Summary judgment is defendant-friendly o Celotex – summary judgment is a counterweight to “liberal” pleading practices Identifying the Trier 30 Background Info Trier of fact = person/people who will hear the case and make a verdict o Jury o Judge – bench trial Judge always the one resolving matters of law, even if there’s a jury Judicial Bias and Recusal Cases assigned to judges randomly, trying to keep case load even as possible Judges have to submit conflict reports to avoid assigning cases the judge might have interest in o Doesn’t always work perfectly Recusal = removal of a biased judge for a new, hopefully unbiased one State approach to recusal o Some states allow preemptive judge strike – don’t have to have a reason o Many states have judicial elections Can raise recusal concerns o States have own recusal practices, but Caperton applies constitutional aspect to state regulations Federal approach to recusal o Generally, you’re stuck with assigned judge unless good cause to recuse o § 144 – Bias or Prejudice of Judge If you believe judge is biased/prejudiced, you can file a motion to recuse as long as made in good faith Motion resolved by a different judge Only applies to District Court judges Have to provide reasons why judge biased against you, prejudiced in favor of other party Only get one o Risk: if it fails, judge might be even more biased against you o § 455 – Disqualification of justice, judge or magistrate judge Judge shall recuse herself where her impartiality might reasonably be questioned Mandatory Supposed to work without party intervention – judge decides for herself o Decision can be appealed unless it’s SCOTUS A. Impartiality might reasonably be questioned If judge was going to recuse under (a), parties can decide they’re OK with it and waive disqualification Due Process (constitutionality element, Caperton v. A.T. Massey Coal Co.) – requires recusal in instances the probability of bias is unconstitutionally high o Judge is biased and should recuse himself when a contributor’s influence on his election is so substantial that it would offer a possible temptation to the average judge to lead him not to be impartial 31 o Caperton – judge appointed to bench because Massey CEO donated massive amounts of money to campaign, then heard Caperton case B. List of relationships Bias against party, knowledge of disputed fact Served as witness/attorney of party Served in governmental employment or have said anything expressing opinion of merits Financial interest in outcome o Allowed to divest if you have financial interest Family relationships -> (e) if a judge has to recuse herself under (b), the parties cannot waive disqualification Why do we have these rules? o Fairness – courts should be impartial o We also want judges to appear impartial Slight presumption in favor of recusal o If it’s close, recuse o Except in SCOTUS – presumption against recusal Why? Status You can’t replace them Juries Governing Rules Rule 38 – the right to a jury trial o 7th Amendment is still enforced Only in federal courts (not incorporated into states) What are we preserving? The right to a jury as it stood in 1791 o Have to see if your claim would receive a jury in 1791 o What if the claim didn’t exist in 1791? How do you know if you get a jury trial on a new claim? 1. Has Congress told us the answer? 2. Apply Historical Analogy Test A. Look for closest historical analogous claim B. Look at remedy sought (much more important, but don’t forget (a)) o Money/legal -> Jury Ex. A collective bargaining agreement is comparable to a breach of contract claim, which is a legal issue (Chauffeurs Local 391 v. Terry) 32 Injunctive/equitable -> judge Definitions of legal or equitable claim is a federal issue, even in state law claims o B. If you want a jury trial, you have to demand it No demand = no jury, even if you could have had one Two options: 1. File separate paper of demand, serve to all parties Add it to your pleadings Can be either party o C. Express which claims you want jury for, otherwise assumed you want jury on all jurytriable issues o D. If you make a demand, you can only withdraw if other parties consent Rule 39 o B. A court may order a jury trial on any jury-triable issue it wants (very rare) Multiple claim cases The entire case doesn’t have to go to either a judge or a jury o Neither joinder of an equitable claim with a legal claim nor vice versa can defeat an otherwise valid Seventh Amendment right to a jury trial (Amoco Oil Co. v. Torcomian, father and son operating Amoco station as franchise owners, had negotiations to formalize it but never completed, Amoco sues first with six claims, some requests for equitable relief and some for legal relief) If not entire case is jury or judge, how do you split them? o Send legal claims to jury, equitable claims to judge Look at each claim with demand for jury Look at all claims at least if they’re compulsory counterclaims (compulsory = grow out of original transaction/occurrence) To keep crafty plaintiffs from being too strategic and don’t want to punish defendants by not getting jury they’d have right to Don’t want plaintiffs to over-plead or under-plead depending on if they want bench/jury Which ones go first? o Legal claims go first Jury’s findings on overlapping facts bind the judge so long as findings aren’t unreasonable o Then, equitable claims considered Why do we have juries? Why shouldn’t we? Why do we have a jury? o 1. Political – jury is a safeguard against over-reaching government Jury can nullify unjust laws o 2. Sociological reasons Benefit of collective decision-making Benefit of off-setting responsibility People will do what they think is right if they aren’t afraid of standing alone 33 o 3. Cultural/social benefit – voice of jury is the voice of community, so decision is legitimate in eyes of community Makes people more likely to accept verdict o 4. Tactical – some litigators like jury trials, so they fight to keep it around o 5. History – it’s enshrined in the constitution Why shouldn’t we have a jury? o 1. The jury isn’t a governmental figure – no authority Nullification incompatible with rule of law o 2. Too expensive, cumbersome o 3. Insufficiently sophisticated Decides based on guts, not law -> no evidence this is true o 4. You don’t get a cross-section Skews old, white, etc. o 5. We don’t look hard at what juries do because we’re scared to see what they really do in deliberation room Size of Juries As few as 6 to start, can end with as few as 5 o Reduction of number can change our justifications for why we have juries Smaller jury = less points of view Number capped at 12 with 2 alternates o Don’t tell the alternates that they’re alternates, or they won’t give the trial the attention it deserves Process of selecting a jury 1. Take all eligible jurors and establish a jury pool (venire) o Random calling of names, requires that pool is a fair cross-section of the community o Jury Qualifications Act – for federal courts US Citizen 18 years old English-speaker and literate Non-felon or restored felon Lived in district for at least one year 2. Ask questions through voir dire o Financial interests o Family relationships o Learn about jurors and find out who can be open-minded adjudicator Also used by attorneys to try to stack jury in party’s favor Get challenges/strikes to get rid of jurors we don’t want For cause o Unlimited o When you know they have a bias o Have to disclose your reason to court Court can choose to not approve it o On appeal, presumed to be harmful Peremptory o 3 in federal civil cases as a default 34 o For any reason or no reason as long as it’s not for race or gender You don’t have to explain reason to court If you think someone uses this inappropriately: 1. Show pattern of misuse 2. Accused rebuts with acceptable explanation o Courts accepts almost anything 3. Accuser shows neutral explanation invalid o On appeal, not necessarily harmful because you could get fair jury with just for-cause challenges Why do we need both for cause and peremptory challenges? Two parties pursuing self-interests will balance each other out People more likely to accept outcome, even if not in favor, if they felt like they had a hand in picking jury Trial Basics 3 different burdens o Burden of pleading – writing things down o Burden of production – producing evidence necessary to win o Burden of persuasion – convince finder of fact that you’re right to requisite amount Varies depending on case 1. Beyond a reasonable doubt (almost 100% certainty) o Criminal cases, burden on prosecutor 2. Clear and convincing evidence (~66%) o Child custody, family, habeas, etc. 3. By a preponderance of the evidence (just over 50%) o Civil cases o More likely than not Plaintiff must fail where undisputed evidence points with equal force to two things, one of which renders defendant liable and the other not (50/50 – Reid v. San Pedro, Los Angeles & Salt Lake Railroad, case where cow killed on railroad, unsure how he got onto track but one would leave owner liable and the other would leave RR liable) How do you meet these standards? Add pieces of evidence that show you should win claim, weaved together with inferences o Trial is just a battle of inferences – if you don’t have to make inferences, then there’s only one reasonable outcome Court control devices during trial o Evidence Court decides what evidence is admissible Most evidence issues resolved before trial o Jury instructions 35 Reading the law before deliberation, controls what jury does/does not consider Most courts don’t read them until right before deliberations, come from pattern instructions, which are bulletproof on appeal o Judge’s rapport with the jury – jury wants to satisfy judge, and jury will pick up on things the judge says o Directed Verdict (R. 50 – Judgment as a Matter of Law) A. Judgment as a Matter of Law Show that no legally sufficient evidentiary basis for the other side to win o Witness credibility should generally be left to the jury, but if a jury could believe all witnesses and still not pass preponderance of the evidence, then DV is appropriate (Pennsylvania R.R. v. Chamberlain – case with train car yard employee being run over by a train, unsure how it happened) When can you file motion? o During trial – not until the other party has been fully heard on the issue Defendant can file after plaintiff presents and then again after he presents his own evidence o Before case is submitted to the jury B. Renewing the motion after trial Can renew DV motion within 28 days of entry of judgment, motion renewed as JNOV motion (see pg. 35) o You cannot file JNOV motion if you didn’t file an appropriate motion for directed verdict Jury Impeachment Court can’t use information about what jurors did in deliberation to impeach jury verdict if information came from juror o Deliberation = everything from when jury is seated until dismissal o Rule of Evidence 606(b) – keeps shut the ears of the court, but no one else – could talk to media, friends, etc. o Can’t order a new trial if court learns from jurors that jurors disregarded court’s instructions (Peterson v. Wilson – judge talked to jurors ex parte after verdict and learned they didn’t follow jury instructions following wrongful termination suit) o Juror may not testify about evidence of jurors’ alcohol and drug use during a trial (Tanner v. United States, in which two jurors after verdict came forth to tell attorney on own accord about extreme amounts of alcohol and drug use during the trial) Exceptions to using juror information: o 1. Extraneous prejudicial info brought to jury’s attention When jury considers evidence not officially admitted in trial under rules of evidence (i.e. juror going home and attempting to recreate something from trial) To determine if jury testimony admissible, determine if outside or inside influence o 2. Outside influence (bribes, threats, etc.) o 3. Mistake on verdict form 36 o If falls under one of these exceptions, we can use that juror testimony for jury impeachment Why do we have these standards? o 1. History o 2. Finality o 3. Want to protect jurors from attorney harassment o 4. Protect deliberative process If jurors think conversations could be used against them, they wouldn’t be so candid o 5. We don’t want to know – hiding what jury is doing because we’re worried about what we’ll find What can you do? o Get information from someone other than juror o Get information before verdict What if someone lied during voir dire? o You can’t use this information to impeach jury verdict o What if jurors lie regarding race? SCOTUS deciding now – Pena-Rodriguez v. Colorado Post-Trial JNOV and New Trial JNOV Post-trial verdict as a matter of law, judge flips jury verdict and enters judgment o Judgments as a matter of law get de novo review on appeal (see pg. 37) Can only file JNOV motion if you filed a directed verdict motion during trial o Why? Efficiency 7th Amendment Jury verdicts shall not be reexamined but for tools established by common law JNOV not established when 7th Amendment created, so we made it an extension of JV notion Rule 50(b) New Trial Rule 59 o When? Errors in procedure Errors in outcome – jury reached verdict judge doesn’t like Legally inconsistent (ex. Defendant not liable but still has to pay damages) When verdict is contrary to great weight of evidence o The more complicated, long and tedious, the more likely we’ll be to grant a new trial 37 Something simple – give deference to jury Ex. Lind v. Schenley Industries, suit for a pay raise Ling says sales manager defendant promised, jury verdict rested on jury determination of witness credibility, rather simple and what we normally expect jury to do, so more deference what determined whether to grant a new trial o Court can grant a new trial on its own o Granting new trial isn’t all or nothing – can have new trial on just parts of the case o New trials get review for abuse of discretion on appeal (see below) More deference Appeal Basics Appellate court looks at: o 1. Was there an error? o 2. If so, was it a harmful error? Harmless error: correcting it on remand would have led to same result Inefficient to go through remand for no reason If it would come to the same result, then it’s the court just issuing an opinion, which is prohibited by Article III o Courts must issue opinions that make a difference in live cases Ex. Harnden suing Jayco for a vehicle malfunction, Jayco moves for summary judgment, supporting motion with expert report; expert report not in right form but court accepts it, which Harnden objects to – if appealed to CC and remanded to DC, only instruction would be for report to be in right form, same result would happen Three standards of appellate review o 1. Abuse of discretion When trial court’s decision seems unreasonable (most deference) For when governing statute mentions discretion or for court management and organization o 2. Clear error – only reverse if District Court made clear error Questions of fact If appellate court has definite and firm conviction that mistake has been made Findings of fact cannot be set aside unless clearly erroneous, where, although there is evidence to support the finding, the reviewing court is left with a definite and firm conviction that a mistake has been committed (Anderson v. Bessemer City, gender discrimination case in which CC overruled DC because they thought the evidence pointed to the plaintiff not being the best suited for the job based on the same evidence – not clearly erroneous, just that the CC would have come to different conclusion) o When there are two permissible views of the evidence, then the factfinder’s choice between them cannot be clearly erroneous o 3. De novo – no deference, look at everything anew Typically, questions of law 38 No deference for questions of law because all judges are looking at same material and applying it in the same way Distinguishing questions of fact and law: Do I have to know anything about the law to answer this question? o Cases aren’t all or nothing – can separate things out o 4. Plain error When error so bad it would compromise the integrity of judicial system When issues raised on appeal that were waived at trial Support and critique of our system of appeals o Support Efficient Maintains District Court trial as the main event Might obviate need for a bunch of appeals Empowers trial judges Controls costs o Critiques Trials shouldn’t be the main event Empowering trial judges isn’t necessary Hurts parties with limited resources if trial drags on Rule emerged from a different judicial era Who Appellant – party that wants something changed Appellee – person who won at trial o Show up, file documents, etc. o You can argue in favor of sustaining judgment using anything in the record, even if not what District Court relied on o If you want anything to change, use appellant rules Any party can appeal who didn’t get exactly what they want (aggrieved party) o Based on relief sought Probably not enough to just lose one claim, but look to see if winning that claim would equal more remedies Look on legal implications of failed/successful claim when determining if party is aggrieved (Aetna Casaulty & Surety Co. v. Cunningham – Aetna got breach of contract claims but not fraud, wanted fraud because couldn’t be dissolved when Cunningham inevitably went into bankruptcy like the breach claim could) o Even if you won some, if you lot some you can appeal (if you get anything but “full loaf,” Forney v. Apfel, involving a suit for Social Security disability, administration said Forney was not disabled enough; appeals to DC, which said agency decision inadequately supported and remanded to agency – allowed to appeal DC decision because she was seeking disability, not a second consideration by agency) When § 1291 – jurisdictional rule that Circuit Courts have jurisdiction to hear appeals from all District Courts o Appears that appellate courts have to raise jurisdictional questions sua sponte o Only applies to jump from District to Circuit Court 39 After final judgment has been entered – final decision is “one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment for the case overall” o Why? More efficient than going back and forth – wouldn’t be fair to parties with less resources o JNOV motion on its own = final judgment o Failed new trial motion = final judgment (granted = not final) o What if court grants both JNOV and new trial? JNOV NT Final? L L Yes W L Yes W W Yes – R.50 – granting both doesn’t negate finality of JNOV L W No 4 exceptions to Final Judgment Rule o 1. Rule 54(b) – judgments on multiple claims or involving multiple parties Allows pieces of multifarious cases to be separated and appealed Elements: 1. Multiple claims/multiple parties (3+); AND 2. Court determines there’s no just reason for delay and explicitly states as much after completing adjudication on claim(s) Gives District Court a lot of power to keep such cases from getting appealed in part o 2. Interlocutory orders (§ 1292) – when not all issues resolved, but certain claims still appealable (a) Only interlocutory judgments appealable are grants of injunctive relief Partial summary judgment is only appealable to the court of appeals if injunctive relief is granted (Liberty Mutual Insurance Co. v. Wetzel, Wetzel suing Liberty for gender discrimination, files motion for partial summary judgment on liability, not remedies, and she wins – final judgment) Why are injunctions immediately appealable? o History – all equitable claims were immediately appealable o We consider injunctions as being extraordinary relief o Very intrusive, very dramatic, more so than money damages o Hierarchy of remedies – you only get injunctive relief if legal remedies would be insufficient Requires court to actually act on injunction, not just comment on it -> Does not apply to temporary restraining orders o Only temporary – harm isn’t as severe, don’t last that long (b) Big question exception; test: 1. Controlling question of law? (central to case) 2. Substantial ground for a difference of opinion o Looking for diverging judicial interpretation 3. Immediate appeal from order may materially advance the ultimate termination of the litigation 40 Rarely used. Why? o District Court has to write an order certifying appropriate to appeal under § 1292 o Circuit Court has discretion to hear or not o -> All has to happen within 10 days o Court typically reserves § 1292(b) appeals for big societal questions Ex. Michigan affirmative action cases o 3. Collateral Order Doctrine Collateral order is an order that can impact the outcome, but is separate from the merits of the case Unusual Appealable immediately Too important to be denied review and too independent of the cause itself to require appellate consideration to be deferred until whole case is adjudicated Collateral orders must: 1. Conclusively determine the disputed question 2. Resolve an important issue completely separate from the merits 3. Will the issue be effectively unreviewable on appeal from the final judgment? o Issue only unreviewable if right you’re trying to vindicate is destroyed unless appealable now Doctrine has been upheld in contexts which a party is debating if they have the right to not litigate at all i.e. immunity, double jeopardy, etc. o Especially hard to satisfy o Forum-selection clauses are not collateral orders (Lauro Lines S.R.L. v. Chasser, plaintiffs represent people on cruise ship owned by Lauro which was hijacked by terrorists in Mediterranean, suit centers around wrongful death of passenger who was thrown overboard while in his wheelchair, had a forum-selection clause in tickets, so argues collateral order doctrine) o 4. Mandamus (quasi-exception) An order from court with authority telling public agency, governmental entity, or governmental official to perform an act required by law Flipside: writ of prohibition (same requirement) Technically a separate cause of action – going around final judgment rule to file a claim in a higher court § 1651 – All Writs Statute Judges have the power to protect their jurisdictions from usurpation of power via writs Making sure lower courts are acting appropriately 3-part mandamus test 41 1. No other adequate means to get what you want o Courts can’t require someone to invoke executive privilege before allowing a writ of mandamus (Cheney v. US District Court, in which plaintiffs sue Cheney to get information about an advisory group Cheney lead regarding energy policy, Cheney did not want to release that information but invoking executive privilege would seem like he was trying to hide something) Invoking executive privilege highly political, violates separation of powers to tell Cheney he has to invoke it 2. Right to writ is clear and undisputable 3. Court, in its discretion, has to decide it’s appropriate How At trial court, you have to raise issue and object to it. If you don’t raise it, you can’t raise it on appeal o Issues that can’t be waived: Subject matter jurisdiction Erie questions o You can bring up waived issues at trial only if you can prove plain error Leaving decision in place will negatively affect reputation of court, etc.