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Bloom Civil Procedure Fall 2016
Prerequisites
4 requirements to the appropriate exercise of judicial power
Subject Matter Jurisdiction – Article III
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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
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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
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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
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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
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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
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o Meant to preserve diversity and its core requirements
Removal Jurisdiction - § 1441
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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
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Personal jurisdiction
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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
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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
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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
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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
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Long-arm statutes can do two things:
o Require the same amount of contacts
o Require more contacts
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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
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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
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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
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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
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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
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Erie Doctrine
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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
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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
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Pre-Trial
Pleadings
Background Info
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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)
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 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)
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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.
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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
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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.