Civil Procedure
Professor Cooper
Spring 2019
Amended Pleadings - Rule 15
Without permission of the court:
● Within 21 days of serving the pleading;
● If the pleading is one to which a responsive pleading is permitted, within 21 days of
service of the responsive pleading or of a motion to dismiss under Rule 12(b), (e), or (f).
Other amendments require:
● Opposing party’s remission, or
● Permission of the court. “The court should freely give leave [to amend] when justice so
requires.” (Rule 15(a)(2)).
Beeck v. Aquaslide ‘N’ Dive Corp
● Insurance companies pointed out that the slide was an Aquaslide, which the company
took for fact, then president of Aquaslide investigated and determined that the slide
was not an Aquaslide, moved to amend their answer stating it was not their slide,
affecting the statute of limitations
● Plaintiff thought the slide was Aquaslide because distributor typically worked with
Aquaslide.
● Defendant relied on the testimony of the various insurance companies that it was an
Aquaslide slide. When the president discovered that it was not an Aquaslide slide,
motion to amend their pleading was submitted to say it was not their slide.
● Plaintiff was arguing because the statute of limitations was up and the plaintiff cannot
go after the real manufacturer, claiming injustice.
○ Would not be just if Aquaslide was tried against because they would be
defending themselves over a slide that is not theirs.
● Amendment was not seeking immediate resolution, merely a change in the fact pattern.
The court believed the plaintiff was exaggerating the damage.
● Court then allows for two separate trials under Rule 42(b)
○ Tactic is used to rid the case of emotion if the case was tried as a whole
○ Case proceeding is similar to the pattern of Anderson v. Cryovac
● *Late discovery seemed to appear a number of times in the time around Beeck’s trial,
making Aquaslide’s case less sympathetic*
FRCP 15 - Relation Back
A. The law that provides the applicable statute of limitations allows relation back;
B. The amendment asserts a claim or defense that arose out of the conduct, transaction, or
occurrence set out - or attempted to be set out - in the original pleading;
Moore v. Baker
● Moore went to Baker for blockage in her carotid artery, but the proceeding went poorly,
leaving Baker disabled. She sued Baker
○ Filed on the last possible day to file
● Moore then went to add negligence in the performance of the surgery and post-op, very
much after the statute of limitations, claiming it relates back to the original claim
● Court rules against this amendment, as the first claim was against the provision of
notice before the surgery, and the second claim was related to post-surgery
● Plaintiff claims Azarbal as precedent, but the procedures in Azarbal are linked together
(one flows naturally to the other) and this is not the case with Moore
Bonerb v. Richard J. Caron Foundation
● Bonerb was playing basketball and injured on the court of a rehabilitation center and
sued for negligent maintenance of the court. He then sued for counseling malpractice.
○ The second claim was from a separate lawyer.
Counterclaims
A counterclaim is:
● Compulsory if it arises out of the same transaction or occurrence as does the opposing
claim;
● Permissive if it does not arise out of the same transaction or occurrence
Can a defendant, with a federal claim filed against them in federal court, file a counterclaim
over a state issue in that same court? Yes, because the federal court has supplemental
jurisdiction.
Joinder of claims by plaintiff
● Rule 18(a): A party asserting a claim may join with it as many claims as the party has
against the opposing party.
● Qualifying rules:
○ Claim preclusion: some claims are lost if not brought.
■ Use em, or lose em.
○ Subject matter jurisdiction.
■ Supplemental Jurisdiction
● 28 U.S.C. Sec. 1367 - Basic rule: except as otherwise provided,
when there is proper jurisdiction in federal court over one claim,
the court may hear all other claims that form part of the same
case or controversy, even if there is no independent basis for
exercising jurisdiction over those claims
● (b) - In any civil action of which the district courts have original
jurisdiction founded solely on section 1332 of this title, the district
courts shall not have supplemental jurisdiction under subsection
(a) over claims by plaintiffs against persons made parties under
Rule 14, 19, 20, or 24 of the Federal Rules of Civil Procedure, or
over claims by persons proposed to be joined as plaintiffs under
Rule 19 of such rules, or seeking to intervene as plaintiffs under
Rule 24 of such rules, when exercising supplemental jurisdiction
over such claims would be inconsistent with the jurisdictional
requirements of section 1332
● (c) - The district courts may decline to exercise supplemental
jurisdiction over a claim under subsection (a) if ○ The claim raises a novel or complex issue of State law,
○ The claim substantially predominates over the claim or
claims over which the district court has original
jurisdiction,
○ The district court has dismissed all claims over which it has
original jurisdiction, or
○ In exceptional circumstances, there are other compelling
reasons for declining jurisdiction
● Rule 20(a)(1): Plaintiffs may join together if:
○ The claims they assert arise out of the same transaction, occurrence, or series of
transactions or occurrences; and
○ Any common question of law or fact will arise
● Rule 20(a)(2): a plaintiff may join together as defendants multiple persons if:
○ The claims against the defendants arise out of the same transaction, occurrence,
or series of transactions or occurrences; and
○ Any common question of law or fact will arise.
● Qualifying rules:
○ Issue preclusion
○ Subject matter jurisdiction
○ Personal jurisdiction
Mosley v. General Motors Corp.
● Mosley and nine others filed suit with the EEOC against General Motors and Local 25,
United Automobile, AAIWA Union
○ All under discrimination claims, but separate in discrimination issues
■ Hiring, promoting, firing, and beneficial differences on the basis of race
■ Discriminations of hiring on the basis of sex
● The commonality is the defendant and the policy of General Motors.
Counterclaims
A counterclaim is:
● Compulsory if it arises out of the same transaction or occurrence as does the opposing
claim;
○ Will fall within the court’s supplemental jurisdiction and does not require an
independent jurisdictional basis.
● Permissive if it does not arise out of the same transaction or occurrence.
○ Does not fall within the court’s supplemental jurisdiction and does require an
independent jurisdictional basis.
Plant v. Blazer Financial Services
● Plant claims that Blazer failed to make a disclosure under the Truth and Lending Act
● Counterclaim was Blazer suing Plant for installments never paid
○ Not a permissive counterclaim because it’s not an independent basis
Crossclaims
Rule 13(g)
● Party may assert claim against a co-party if it arises out of the same transaction or
occurrence as a principal claim or counterclaim
Plaintiff sues Audi, Volkswagen of America, WW Volkswagen for defective product and
manufacture. WW Volkswagen wants to sue seaway for damaging the car and, thus, the image
of WW Volkswagen and Volkswagen of America. Compulsory crossclaim
Volkswagen of America has a contract claim with Seaway. Local dealerships have to chip in for
national ads, and Seaway hasn’t been making its payments.
Supplemental Jurisdiction
28 U.S.C. Sec 1367
● Basic rule: except as otherwise provided, when there is proper jurisdiction in federal
court over one claim, the court may hear all other claims that form part of the same
case or controversy, even if there is no independent basis for exercising jurisdiction over
those claims.
● (b): in any civil action of which the district courts have original jurisdiction founded
solely on section 1332 of this title, the district courts shall not have supplemental
jurisdiction under subsection (a) over claims by plaintiffs against persons made parties
under Rule 14, 19, 20, or 24 of FRCP, or over claims by persons proposed to be joined as
plaintiffs under Rule 19 of such rules, or seeking to intervene as plaintiffs under Rule 24
of such rules, when exercising supplemental jurisdiction over such claims would be
inconsistent with the jurisdictional requirements of section 1332
● (c): the district courts may decline to exercise supplemental jurisdiction over a claim
under subsection (a) if○ The claim raises a novel or complex issue of State law,
○ The claim substantially predominates over the claim or claims over which the
district court has original jurisdiction,
○ The district court has dismissed all claims over which it has original jurisdiction,
or
○ In exceptional circumstances, there are other compelling reasons for declining
jurisdiction.
Impleader
Rule 14
● A defendant may assert a claim against a non-party who is or may be liable to it for all or
part of the claim against it
● Additional concerns:
○ Subject matter jurisdiction
■ Supplemental jurisdiction
○ Personal jurisdiction
■ 100-mile bubble-Rule 4(k)
Price v. CTB, Inc. (pg 805)
● Chicken farmer Price sues Latco, among others, over a defective chicken house
● Latco filed a third-party complaint against ITW for the manufacture of the nails
● Looks like impleader, but ITW argues that it was improperly impleaded
○ The term “latches” roughly equals a statute of limitations
● Contribution - one tortfeasor found liable to a plaintiff can file a lawsuit against another
party to restore a payment
○ Alabama doesn’t recognize contribution
● Impleader only works in derivative liability
ONce impleader has occurred, 3rd party defendant:
● Must assert compulsory counterclaims against 3rd party plaintiff;
● May assert permissive counterclaims against 3rd party plaintiff;
● May assert crossclaims against co-3rd party defendants
● May assert any claim against the original plaintiff arising out of the same transaction or
occurrence;
● May implead a non-party who is or may be liable to it for all or some of the 3rd party
defendant’s liability to the 3rd party plaintiff
● Once impleader has occurred, the original plaintiff may assert claims against the 3rd
party defendant arising out of the same transaction or occurrence;
● If a claim is asserted against plaintiff, plaintiff may implead a 3rd party defendant who
is or may be liable to plaintiff for all or some of plaintiff’s liability
Supplemental Jurisdiction
● 28 USC Sec. 1367(b):
○ In any civil action of which the district courts have original jurisdiction founded
solely on section 1332 of this title, the district courts shall not have supplemental
jurisdiction under subsection (a) over claims by plaintiffs against persons made
parties under Rule 14, 19, 20, or 24 of FRCP, or over claims by persons proposed
to be joined as plaintiffs under Rule 19 of such rules, or seeking to intervene as
plaintiffs under Rule 24 of such rules, when exercising supplemental jurisdiction
over such claims would be inconsistent with the jurisdictional requirements of
section 1332
Hypos
● P (IN) v. D (IL), D impleads 3D (IL)
○ Supplemental jurisdiction
● P (IN) v. D (IL), D impleads 3D (IL), 3D asserts permissive counterclaim against D
○ No supplemental jurisdiction
● P (IN) v. D (IL), D impleads 3D (IN), 3D asserts claim against P
○ Supplemental jurisdiction
● P (IN) v. D (IL), D impleads 3D (IN), P asserts claim against 3D
○ No supplemental jurisdiction
Permissive joinder of parties
● Rule 20(a)(2): a plaintiff may join together as defendants multiple persons if:
○ The claims against the defendants arise out of the same transaction occurrences,
or series of transactions or occurrences; and
○ Any common question of law or fact will arise.
Required Joinder
● Rule 19 - three inquiries
○ Is there an absent party that should be joined if possible?
○ If there is such a party, is joinder possible?
○ If joinder is not possible, is the absent party indispensable, or may the action be
structured in such a way that the lawsuit can proceed?
● Rule 19(a)
○ Who should be joined if possible?
■ Persons whose absence would prevent relief from being accorded among
those already parties;
■ Persons claiming an interest in the subject whose interests will be
practically impaired or impeded;
■ Persons claiming an interest in the subject who are so situated that
resolution in their absence will leave a party subject to substantial risk of
double, multiple, or otherwise inconsistent obligations
Permissive Joinder of Parties
Rule 20(a)(1): Plaintiffs may join together if:
● The claims they assert arise out of the same transaction occurrence, or series of
transactions or occurrences; or
● Any common question of law or fact will arise
Rule 20(a)(2): Plaintiff may join together as defendants multiple persons if:
● The claims against the defendants arise out of the same transaction, occurrence, or
series of transactions or occurrences; and
● Any common question of law or fact will arise
Joinder
Who should be joined if possible?
● Persons whose absence would prevent relief from being accorded among those already
parties;
● Persons claiming an interest in the subject whose interests will be practically impaired
or impeded;
● Persons claiming an interest in the subject who are so situated that resolution in their
absence will leave a party subject to substantial risk of double, multiple, or otherwise
inconsistent obligations
Is Joinder Possible? Consider:
● Subject matter jurisdiction (diversity);
● Venue;
● Personal jurisdiction.
○ But note 100-mile “bubble” for service of process under Rule 4(k).
If Joinder is not possible, is the absent party indispensable? Consider:
● Extent to which judgment without absent party will prejudice existing party or absent
party;
● Extent to which prejudice can be avoided;
● Whether judgment rendered without absent party would be adequate;
● Whether plaintiff will have an adequate remedy if the action is dismissed for nonjoinder.
Temple v. Synthes Corp. (pg. 813)
A joint tortfeasor is not a required party under Rule 19.
Helzberg’s Diamond Shops v. Valley West Des Moines Shopping Center (pg. 817)
Intervention
Rule 24
● Party may intervene as of right if:
○ Application is timely;
○ Applicant claims an interest relating to the subject of the action;
○ Disposition in the applicant’s absence may practically impair or impede the
applicant’s interest; and
○ Applicant’s interests are not adequately represented by existing parties.
● Party may intervene permissively if:
○ Application is timely;
○ Applicant’s claim or defense has a question of law or fact in common with the
principal action; and
○ The court grants permission in the exercise of its discretion
Natural Resources Defenses Council v. United States Nuclear Regulatory Commission (pg. 824)
Required Joinder - Rule 19
Interpleader
What is it?
- Mechanism for bringing together in a single lawsuit all claimants to a common thing or
fund.
What provisions govern its use?
- Rule interpleader: Rule 22
- Statutory interpleader: 28 U.S.C. §§ 1335, 1397, 2361
State Farm v Tashire
Greyhound bus accident
A (NY) possesses the ball. B (NY), C (CA), and D (OR) claim a right to the ball
- C sues A in federal court in NY for possession of the ball. A moves to dismiss under Rule
12(b)(7) for failure to join required party. Result?
- C sues A in federal court for possession of the ball. D moves to intervene of right.
Result?
- A wants to file an interpleader action in federal court in NY, naming B, C, and D as
claimants. May A do so? Statutory interpleader or Rule interpleader?
Discovery
Can end lawsuits for two reasons:
1. Produces information about the merits of the lawsuit and permits parties to make
informed judgments about the strength of their and their opponent's positions.
2. Enables one party to wear the other down - without regards to the merits - by using
time and money.
Modern Discovery
- Attorneys have the ability to garner relevant information for both their own claims and
for claims against the defendant.
- Obligation for parties to preserve any and all evidence that might end up being relevant
to the case (beneficial or adverse). It is helpful to prevent destroying of evidence
actually gives something to discover.
- Critics complain that litigation becomes slow and expensive due to discovery.
Stages of Discovery
1. Complaint and Service (Rules 8, 4)
2. Parties’ Conference and Discovery Plan (Rule 26(f))
3. Initial Disclosures (Rule 26(a))
4. Scheduling Order (Rule 16 (b))
5. Party-Initiated Discovery (Rules 26-35)
6. Exchange of Experts’ Reports and Expert Depositions (Rule 26(a)(2), (b)(4))
7. Pretrial Disclosures (Rule 26 (a)(3))
8. Final Pretrial Order-Superseding the Pleadings (Rule 16(e))
Three broad types of discovery:
1. Required disclosures;
2. Examining things and people.
3. Asking questions
a. Written or oral questions
Required Disclosures - Rule 26(a)
- Often multiple stages itself, the first being called “Initial Disclosures”
- Witnesses, descriptions & locations of documents, calculations of investments &
damages, insurance policies that party may call on to pay all or part of judgment
- IRTP - no required disclosures policy like Rule 26
Required Disclosures - Expert disclosures:
- Identity of expert;
- Written report of expert’s qualifications and opinion
- When?
- As directed by the court, but at least 90 days before trial.
Required Disclosures - Pretrial disclosures:
- Witness lists;
- Designation of witnesses whose testimony will be presented by deposition;
- Identification of documents and exhibits.
- When?
- At least 30 days before trial
Documents, Things, Land, and Bytes: Requests for Production - Rules 34 and 45
Rule 34:
- They may be sought from a party
- Items to be disclosed must be with reasonable particularity
- Responses due within 30 days of service of request
- Objections must be stated with particularity
- Lawyers want to get ahold of particular pieces of evidence after the initial discovery
period via request of production (Rule 34)
- Emails, bills, maintenance records, etc.
Three broad types of discovery:
● Required disclosures
● Examining things and people
● Asking questions
○ Asking written questions
○ Asking oral questions
Required Disclosures
Initial disclosures: What?
● Identity of persons on whom party intends to rely to support claim or defense;
● Documents (copies or descriptions) on which party intends to rely to support claim or
defense;
● Computation of damages and supporting materials;
● Insurance policies that party may call on to pay all or part of judgment.
Examining Things: Production of Documents (Rule 34)
●
●
●
●
May be sought from a party
Items to be disclosed must be described with reasonable particularity
Responses due within 30 days of service of request (subject to change)
Objections must be stated with particularity
Production of Documents (Rule 45)
● Documents may be obtained from a non-party through a subpoena duces tecum.
Asking Questions: Interrogatories (Rule 33)
Written questions, and responses are expected.
● Directed at a party.
● Must be answered within thirty days.
● Limited to 25 interrogatories.
Requests for Admission (Rule 36)
● May be sought only from a party.
● Must be responded to within 30 days.
● Response must either admit, deny, object, or explain why no admission or denial is
possible.
● Effect of admission: fact admitted is conclusively established
Depositions (Rules 28, 30, 31, 32)
● Oral examination of witness, under oath.
○ May include non-party witnesses.
● Limited to ten in number per side.
○ May seek leave from court for more, or may stipulate to more (Rule 30(a)(2)(A)).
● Limited to one, 7-hour day.
Physical and mental examiniations (Rule 35)
● Where the physical or mental condition of a party (or one in the custody or legal control
of a party) is in controversy, the court may order a physical or mental examination.
○ Showing of good cause is required.
○ On request, examining party must produce report of examining doctor.
○ On receipt of the report, examined party must disclose all like reports of
examinations of the same condition
Discovery Scope
Rule 26
A party may discover information that is:
● Not privileged;
● Relevant to a claim or defense;
● Proportional to the needs of the case, considering:
○ The importance of the issues at stake in the action,
○
○
○
○
○
The amount in controversy,
The parties’ relative access to relevant information
The parties’ resources
The importance of the discovery in resolving the issues, and
Whether the burden or expense of the proposed discovery outweighs its likely
benefit
Limits on Discovery
Rule 26(b)(2)(B)
● A party need not provide discovery of electronically stored information from sources
that the party identifies as not reasonably accessible because of undue burden or cost.
On motion to compel discovery or for a protective order, the party from whom
discovery is sought must show that the information is not reasonably accessible because
of undue burden or cost. If that showing is made, the court may nonetheless order
discovery from such sources if the requesting party shows good cause, considering the
limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery
Rule 26(b)(2)(C)
● On motion or on its own, the court must limit the frequency or extent of discovery
otherwise allowed by these rules or by local rule if it determines that:
○ (i) The discovery sought is unreasonably cumulative or duplicative, or can be
obtained from some other source that is more convenient, less burdensome, or
less expensive;
○ (ii) The party seeking discovery has had ample opportunity to obtain the
information by discovery in the action; or
○ (iii) The proposed discovery is outside the scope permitted by Rule 26(b)(1)
Favale v. Roman Catholic Diocese of Bridgeport (pg. 483)
● Favale was sexually harassed by Sister Stobiersky from December 2002 to June 2003
● The defense claims that the requested information isn’t relevant to the claim that Favale
brings forward
○ Anger management and other psychological issues are not relevant to sexual
harassment
Price v Leflore Detention Center Public Trust (pg. 487)
● Plaintiff’s son died while incarcerated, seeking to compel the defendant to respond to
interrogatory about complaints about medical treatment over 10 years
● Defendant doesn’t argue relevance, argues burden
Rengifo v. Erevos Enterprises, Inc (pg. 488)
Dicovery Scope
A party may discover information that is:
● Not privileged;
● Relevant to a claim or defense;
● Proportional to the needs of the case, considering:
○ The importance of the issues at stake in the action,
○ The amount in controversy
○ The parties’ relative access to relevant information,
○ The parties’ resources,
○ The importance of the discovery in resolving the issues, and
○ Whether the burden or expense of the proposed discovery outweighs its likely
benefit
Protective Orders
A party or any person from whom discovery is sought may move for a protective order …. The
motion must include a certification that the movant has in good faith conferred or attempted to
confer with other affected parties in an effort to resolve the dispute without court action. The
court may, for good cause, issue an order to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense.
● Steps a court can take in granting a protective order:
○ Forbidding the disclosure or discovery
○ Specifying terms, including time and place or the allocation of expenses, for the
discovery;
○ Prescribing a discovery method other than the one selected by the party seeking
discovery;
○ Forbidding inquiry into certain matters, or limiting the scope of disclosure or
discovery to certain matters;
○ Designating the persons who may be present while the discovery is conducted;
○ Requiring that a deposition be sealed and opened only on court order;
○ Requiring that a trade secret or other confidential …. Information not be
revealed or be revealed only in a specified way; and
○ Requiring that the parties simultaneously file specified documents or
information in sealed envelopes, to be opened as the court directs
Hickman v. Taylor
● Tug boat sank, and 5 of 9 died in the accident; spouses of decedents brought wrongful
death claims
● Fortenbaugh (attorney) collected statements from the surviving crew members,
plaintiffs want to collect the statements
● Attorney-client privilege only applied to communications between lawyers and highlevel decision makers more often (at the time)
Work Product - Rule 26(b)(3)
● Ordinarily, a party may not discover documents or tangible things prepared in
anticipation of litigation or for trial or for another party or its representative
● Such materials may be discovered if:
○ They are otherwise discoverable; and
○ Party seeking discovery shows substantial need and cannot obtain substantial
equivalent without undue hardship
● If the court orders discovery, it must protect against disclosure of mental impressions,
etc. of the party’s attorney or other representative
Experts
● Rule 26(a)(2): Must disclose identity, qualifications of all witnesses who will serve as
expert witnesses at trial
○ Rule 26(b)(4)(A): If witness is one retained for purpose of trial, must prepare
written report
● All witnesses identified as experts who may testify at trial may be deposed.
● Rule 26 (b)(4)(B): Expert retained for trial preparation who will not testify is not subject
to discovery except as provided in Rule 35(b) or on showing of exceptional
circumstances.
Work Product - Rule 26(b)(3)
● Ordinarily, a party may not discover documents or tangible things prepared in
anticipation of litigation or for trial by or for another party or its representative.
● Such materials may be discovered if:
○ They are otherwise discoverable; and
○ Party seeking discovery shows substantial need and cannot obtain substantial
equivalent without undue hardship
● If the court orders discovery, it must protect against disclosure of mental impressions,
etc. of the party’s attorney or other representative.
Thompson v. The Haskell Co.
The wound (frustration and anger) was still fresh and was relevant to the case.
Chiquita International Ltd. v. M/V Bolero Reefer
Zubulake v. UBS Warburg LLP (p. 509)
Spoliation
When a party becomes aware of the likelihood of litigation, it is obliged to preserve material
that may be discoverable
Failure to Provide Electronically Stored Information: Rule 37(e)
Absent exceptional circumstances, a court may not impose sanctions under these rules on a
party for failing to provide electronically stored information lost as a result of the routine, goodfaith operation of an electronic information system.
“If you are not emotionally involved, your client is not getting your best effort.” - Joe Jamail
Discovery Sanctions: Rule 26(g)
By signing a discovery disclosure, request, response, or objection, the lawyer certifies that the
document is:
● In the case of disclosures required by Rule 26(a)(1) or (a)(3), complete and correct as of
the time made;
● Consistent with the rules;
● Not interposed for an improper purpose;
● Not unreasonable or unduly burdensome or expensive.
If certification is made in violation of the Rule, the court must impose an appropriate sanction.
● Sanction may include reasonable expenses, including attorneys’ fees, incurred as a
result of the violation.
Discovery Sanctions - Rule 37
Stage 1: Make good faith effort to resolve dispute without court’s involvement - Rule 37(a)(1)
Stage 2: File motion to compel - Rule 37(a)(1)
● Sanctions available:
○ Reasonable expenses (including attorneys’ fees) incurred in filing motion to
compel - Rule 37(a)(5)(A)
● Court may excuse if:
○ No good faith effort before filing motion;
○ Resistance to discovery was substantially justified;
○ Other circumstances make an award unjust
Stage 3: Failure to comply with court order
● Sanctions available - Rule 37(b)(2): order
○ That facts be taken as established;
○ That claims or defenses may not be supported or opposed;
○ Prohibiting the introduction of evidence;
○ Striking pleadings in whole or in part;
○ Dismissing action or entering default judgment;
○ Holding the disobedient party in contempt
■ Not available for violation of order to submit to physical or mental
examination
■ *FRCP 35 may be seen as invasive or an intrusion to privacy*
○ Granting reasonable expenses (including attorneys’ fees).
Sanctions listed in Rule 37(b)(2)(A)(i)-(vi) are available without first obtaining an order
compelling discovery if a party fails to:
● Appear for a properly noticed deposition;
● Serve answers or objections to interrogatories;
● Serve a written response to a request for inspection
Default Judgment - Rule 55
● Default may be entered by the clerk of court if the defendant fails to answer the
complaint within the required time.
● Default judgment may be entered:
○ By the clerk of court if:
■ The claim is for a sum certain and
■ Defendant is not an infant or incompetent person
○ By the court in other instances.
Peralta v. Heights Medical Center
● Employer didn’t pay debts of his employees to Heights, Heights sued for $5,600
● Peralta was allegedly not served, and Heights was granted default judgment and
Peralta’s property was sold in a sheriff auction
● Texas law states that a meritorious defense is necessary to oppose a default judgment
● Peralta alleged he could have mitigated his damages if he had been properly served
● Even without default judgment, his property was taken without his due process rights
Converse of default judgment - judgment against a plaintiff for not fulfilling the lawsuit
(involuntary dismissal).
If the plaintiff files a complaint and wants it to be taken back - the plaintiff will want dismissal
without prejudice (allows the plaintiff to refile).
Voluntary Dismissal - Rule 41(a)
● Plaintiff may voluntarily dismiss the action:
○ By filing a notice of dismissal before the adverse party answers or moves for
summary judgment; or
○ By filing a stipulation of dismissal agreed to by all parties have appeared
○ By order of the court if the agreement of parties cannot be obtained
■ If the defendant has pleaded counterclaim prior to plaintiff’s motion to
dismiss, the motion will not be granted if doing so would deprive the
court of jurisdiction over the counterclaim.
● Voluntary dismissal is without prejudice unless otherwise stated.
○ If dismissal is unilateral or by stipulation, it is without prejudice only if it is the
plaintiff’s first dismissal.
Involuntary dismissal - Rule 41(b)
● If the plaintiff fails to prosecute, the defendant may obtain an involuntary dismissal of
the case.
○ Involuntary dismissal for failure to prosecute operates as an adjudication on the
merits unless the court’s order states otherwise.
*for present purposes, if the case is involuntary dismissed, the plaintiff cannot refile the case in
the same court*
Settlement
● Contract
○ No court involvement.
■ Other than dismissal if a settlement agreement stipulates to it.
○ Enforcement: breach of contract action.
● Consent decree.
○ Court embodies settlement in a judgment.
■ But court does not evaluate fairness of settlement. Principal exceptions:
class actions and cases involving minors and incompetent persons.
○ Enforcement: action to enforce judgment.
Summary Judgment
Discovery is usually completed, and sum. judgment is typically based upon the merits of the
evidence.
● Summary judgment shall be granted if the moving party shows that there is no genuine
issue of material fact and that the moving party is entitled to judgment as a matter of
law (only one way of reasonably looking at the evidence).
○ Facts must be viewed in the light most favorable to the non-moving party.
○ Reasonable inferences must be drawn in favor of the non-moving party.
Pre-2007: voluntary movements in the FRCP say “may,” directory movements say “shall”
Post-2007: discretionary movements in the FRCP say “must” EXCEPT Rule 56 (“shall”)
Difficulty of SJ is that the moving party (the defendant) has the burden of proving to the judge
that the movement is appropriate, opposite the situation of a trial (the plaintiff)
Celotex Corp. v. Catrett
● Catrett’s husband died from exposure to products containing asbestos and sued 15
corporations, including Celotex.
● Celotex moved for summary judgment; no evidence that an Celotex product was a
proximate cause for Catrett’s death.
● Catrett brought forward a deposition from her husband, a letter from a former
employer called as a trial witness, and a letter from the insurance company, leading to
an establishment asbestos exposure.
● Celotex asked for these to be removed as inadmissible hearsay.
● Are the documents brought forward sufficient enough evidence to be considered as
evidence to oppose the summary judgment motion?
● No; after discovery, if there is a genuine dispute to any material fact that is presented by
the nonmoving party, the moving party is entitled to judgment. Reversed and remanded
Tolan v. Cotton
● Tolan was accused by a police officer for stealing a vehicle owned by his family. While
Tolan was on the ground, Officer Cotton arrived, and then escorted or forced Tolan’s
mother towards the garage.
● Tolan rose to his knees or hands and stated, “Get your fucking hands off my mom,” to
which Cotton responded by firing his pistol at Tolan three times, hitting him in the chest,
collapsing his lung and hitting his liver.
● Tolan filed suit against Cotton used excessive force, violating the Fourth Amendment.
Cotton filed for summary judgment. DC granted summary judgment, Court of Appeals
affirmed.
● Was there indisputable evidence that Cotton acted appropriately in firing at Tolan?
● No; opinion vacated and remanded
Bias v. Advantage International, Inc.
● Two days after being drafted into the NBA, Bias died due to a cocaine overdose, and
Advantage hadn’t secured a life insurance policy for Bias.
● Advantage offered testimonies from Bias’s teammates Terry Long and David Gregg,
stating that he was a frequent cocaine user
● Bias’ parents sued Advantage for damages for not securing an insurance policy.
Advantage moved for summary judgment, and the motion was granted. Bias’ family
appealed.
● Was summary judgment appropriate in the fact pattern?
● Yes; court affirmed. Because it was determined that Bias was a cocaine user, he would
not have been eligible for a jumbo policy from any insurance company.
ERIE
In federal court w/diversity jurisdiction, what rules apply?
● Currently understood as state law. Why?
● 28 USC Sec. 1652 - Rules of Decision Act
○ 1789: “the Laws of the several States, except where the Constitution, treaties, or
statutes of the United States otherwise require or provide, shall be regarded as
rules of decision in trials at common law, in the courts of the United States, in
cases where they apply.”
○ 2018: “The laws of the several states, except where the Constitution or treaties
of the United States or Acts of Congress otherwise require or provide, shall be
regarded as rules of decisions in civil actions in the courts of the United States, in
cases where they apply.”
Swift v. Tyson
● Defendant wanted to use a contract defense that the highest NY court would not allow
● Case was in federal court, however, so the defendant argued that the restriction of the
state’s common law defense didn’t apply
● Idea was that common law was a form of natural law, outside of human authority/when
judges gave decisions, they were perceiving law that had existed, not necessarily finding
law
○ Essentially, federal courts didn’t have to adhere to state court common law
Erie Railroad v. Tompkins
● Tompkins filed a negligence claim in the US Federal Court SD of NY
○ Tompkins filed in federal court because Pennsylvania would treat him as a
trespasser, and therefore he was only owed refrain from wanton and willful
misconduct
○ NY court may not defer to Pennsylvania court like a PA court
● Tompkins argued that federal courts did not have to defer to state common law/Erie
argued that this was a case that adhered to “peculiarly local usage”
● SCOTUS, in turn, overrules Swift
○ Justice Brandeis determined that Justice Story ruled Swift incorrectly by
incorrectly interpreting RAD
■ J. Story had incorrectly assumed the legislative history that “the laws of
several states” meant common law and statutory law
○ Results of Swift yield bad results
■ Black & White Taxicab Co. v. Brown & Yellow Taxicab Co. - Brown and
Yellow reincorporated from Kentucky to Tennessee in order to enjoin
Black and White from soliciting customers from railroads (suit would not
have gone through in state court)
○ Brandeis would have let Swift stand and reinterpret RAD had it not been for
Constitutional issue - which is not directly cited
■ Appears to be Equal Protection Clause, but EPC only applied to the states,
not the federal govt.
■ Other argument would be enumeration powers, but this follows the
Commerce Clause
● Rule outcome: In diversity cases, federal courts must apply state law as the rules of
decision, whether that state law originates in a state statute or in state common law.
○ “There is no federal general common law.”
Guaranty Trust Co. v. York
Outcome-determinative test: “does it significantly affect the result of a litigation for a federal
court to disregard the law of a State that would be controlling in an action upon the same claim
by the same parties in State court?”
● York sued Guaranty for breach of trust and misrepresentation.
● York went to federal court based upon the “equity side” of federal court, as NY
substantive law governing the statute of limitations was invoked
Byrd v. Blue Ridge Rural Electric Cooperative
● Byrd is attempting to sue Blue Ridge for injuries sustained while working.
● Respondent claimed that petitioner's exclusive remedy was under the South Carolina
Workmen's Compensation Act, but the case was brought to federal court under
diversity jurisdiction as petitioner was a North Carolina residence and the respondent
was a South Carolina Company.
● Blue Ridge argued that the case should be heard under South Carolina state law which
held that the employment issues in this case should be decided by a judge, not a jury.
● Petitioner Byrd argued that under federal law his Seventh Amendment right to a jury
trial should trump state law. The trial court agreed with petitioner and the court of
appeals reversed, finding for Blue Ridge. The Supreme Court granted cert.
● Was Byrd a statutory employee for the purposes of workers compensation?
● Three questions:
○ Is the state rule bound up with the definition of the rights and obligations of the
parties (substantive, follow Erie), or is it merely a form and mode of enforcing
those rights?
○ If the state rule governs only form and mode, would application of a contrary
federal rule substantially affect the outcome of the litigation?
○ If application of the federal rule would substantially affect the outcome, is
application of the federal rule nevertheless justified by a strong federal policy?
Rules Enabling Act (28 USC Sec. 2072)
● Power is delegated to the Supreme Court to prescribe rules of practice and procedure
for the federal district courts
● The rules “shall not abridge, enlarge, or modify any substantive right”
Hanna v. Plumer
Does a FRCP cover the issue?
● If no, would a federal court’s departure from a state rule/practice be outcomedeterminative in light of the twin aims of Erie?
○ Would it promote forum shopping and result in inequitable administration of the
laws?
● If yes, is the Rule within the grant of power in the Rules Enabling Act?
○ ie, does the Rule “really regulate procedure - the judicial process for enforcing
rights and duties recognized by substantive law and for administering remedies
and redress for disregard of infraction of them.”
○ Does the Rule “really regulate procedure”?
● If the Rule is within the Rules Enabling Act’s grant of power is the Rules Enabling Act
constitutional?
○ Supreme court has held, “yes” - this does not merit additional consideration.
FRCP 3
- A civil action is commenced by filing a complaint with the court.