Taking on Rep
Questions/considerations
● First: Are there deadlines or SOLs?
● Time/workload, conflicts of interests, is there a valid claim, expertise, geography,
atty-cl r’ship, pay structure
Before Starting Action
Reasons for Statutes of Limitations: Staleness of evid, fairness to def, right to repose
● Anonymous Physician v. Wininger. Ind COA 2013. Q of when does time start for
SOL when patient discovers malp or when they reas. should have discovered?
Truthfulness and Communication Rule 4
● Must be truthful to third parties, can’t misrepresent, or lie by omission
○ Exception in negotiations
● Can’t directly communicate with parties that are repped by atty about litigation
○ Includes agents of corp/biz + no exception for third parties
○ If unrepped can’t imply disinterest, must correct misunderstandings
Meeting Rule 11 requirements (only apply to written docs to ct)
● Have to investigate what would make legally valid claim, elements or factors
● Must have evid. support or, if id’ed, likely to after a reasonable investigation
● Purpose can’t be to harass, delay, increase costs. Can’t be legally frivolous
● Violation motions must be filed sep
● Doesn’t apply to discovery, disclosure, and admissions Rules 26-37
● Clement v. Public Service Elec & Gas Co example of Rule 11 violation & sanction
Commencing an Action
First step is filing a complaint, but first you must decide...
What court? Jurisdiction and Choice of Law
Limit on authority of courts to resolve disputes. Need both Personal and Subject Matter
Why? Convenience, liberty, procedure, logistics, choice of law.
Personal Jurisdiction
● Const. limit on states’ judicial reach. 14th amend. Pennoyer v. Neff 1878
● Federal courts usually mirror personal jurisd. of the state where it sits
Three traditional types
1. Transitory (“tag”) – when in state, it has power over you, can serve
2. Domicile – resident of state, even if not physically there
3. Consent (including contacts & waiver – don’t move under 12(b)(2) then waived)
These limits were expanded with Int Shoe Co. v. WA 1945
● Now most states have ”longarm: jurisd. statutes, reach those who impact state
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● General jurisd.
○ Used to be “systematic and continuous contact” with state
○ Now “essentially at home” in state Daimler v. Bauman. Except for
exceptional case, means place of inc or principle place of biz
● Specific jurisd., to the facts of this claim and its harm
○ Old: “Certain minimum contacts” with state
○ Now: “Purposeful availment”
■ Volkswagen: cars move, no marketing/sales in state = not suff.
■ Zippo: Marketing and online sales apparatus in state = suff.
■ Mcintyre: Foreign product marketed to US not NJ = not suff.
■ BMS: Plaintiff’s not from CA, did not get drugs there
■ Ford: “systematically served” the market for cars = suff
● No sliding scale/combo between general and specific, BMS
Subject Matter Jurisdiction
General vs. limited jurisdiction (fed cts are latter)
Federal Question Article III and 28 Sec 1331
● Claim based on fed law, not if fed defense to state law claim or fed response to
state law def (See Mottley case about contract, lifetime rail tix, and Hepburn Act)
OR Diversity Article II and 28 Sec 1332(a)
● Citizens (where domiciled/perm residence) of Diff State + controversy >$75k
● Complete diversity, same state can’t be repped as plain. and diff
○ For class action, only named members of class matter for diversity
● Three exceptions to complete diversity, where only minimal diversity needed
○ Interpleader: Party wants one judge. against all claimants at once
○ Class Action Fairness Act (CAFA). Cases >$5 mill
○ MMTJA. If 75+ people died in single accident (i.e. transit crashes)
Supplemental 28 Sec, 1367(a) discretionary to fed ct
● If both fed q from same case/controversy and state law q can bring in fed ct
● Can add parties w/ state claims from same case and controversy thru
cross/counterclaims, impleading, as long as initial jurisd not violated (depends on
federal q or diversity, can’t violate diversity thru supp.)
● Claims that are <$75k can be attached to anchor claim >$75k
Removal
● If concurrent state and fed jurisd. Def can remove case to fed ct if filed in state
● Protect against “homefield” advantage in st ct (can’t remove to state ct from fed)
○ If a def is of the same state action brough can’t remove, can’t destroy
complete diversity
● W/in 30 days, doesn’t need cts permission just need to make motion. Pltf can
object if they believe no federal jurisdiction and ask fed ct to remand to state ct
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Choice of Law
● Horizontal: Apply the law where the harm occurred Dyn v. Gordon, unless the
territory has no interest in the conflict (say harm was in Canada) Babcock
● Vertical: If not fed law, fed courts apply state law Erie (unless some pressing
national security interest); apply horizontal COL state ct would pick Klaxon
Factors for deciding which type of court (choice of law)
○ Substantive law; precedent; burden or factors that need to be met
○ Speed of claim (usually fed cts faster)
○ Procedures that need to be followed
○ Biases of court (i.e. if suing state agencies, federal court might be better)
○ Politics/ideology of court (including election of judges)
○ Where witnesses are located; logistics of bringing evidence forward
○ Jury selection and biases/tendencies
○ Public opinion (stature of defendant)
What claim to state
● Primary goal is to avoid dismissal for failure to state a claim upon which
relief can be granted - Rule 12(b)(6)
● Rule 12(b)(6) is laxxer than Rule 11(b)(2) in three ways
○ Rule 11(b)(2) requires reasonable investigation for factual
contentions, but here if a contention is specifically qualified, then
the fact only needs to likely have evidence after a reasonable
opportunity for investigation occurs (i.e. after the complaint is
submitted)
○ You can plead in the alternative, meaning state something in one
count of the complaint, but something different or contradictory in
another
■ Why? It may be uncertain what happened and there hasn’t
been a chance for discovery yet. This is just the first step of
the case
○ Burden on pleader is intended to be relatively slight
● Just what the burden on pleader is meant to be is up for debate
○ Question of whether something is a fishing expedition or impossible
to prove without discovery
● Things to avoid
○ Conclusory statements: merely stating the conclusion in the
allegation, without any sort of additional evidence (there was price
fixing and it led to financial loss)
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○ Stating a claim for which there is no legal remedy (dinner party
snub)
What relief will be requested? And by extension who will try the facts?
● 7th amend right to civil law jury trial doesn’t apply to the states
● Right to civil jury trial and determ of facts depends on type of relief requested,
based on English law, although claims are now together in a civil action
○ Legal relief (monetary/financial relief) jury FF, if either party requests
○ Equity relief (injunctive or declaratory relief) judge is the FF
■ Sometimes money in equitable relief can be involved if it’s not
considered damages (backpay is an example)
○ If facts are for both types of relief, then jury fact finding takes precedence
○ S Ct precedent is asking what courts would have historically done if facts
and/or relief type is close/unclear
● Pros/Cons of using jury as fact finders
○ Difficulty for juries to decide specifics of injunction, questions of law,
especially because they’re involvement ends after the trial, whereas the
judge/court will be enforcing potentially for long-term
○ Technocratic vs democratic debate
○ Democratic education and reflection of community beliefs (but what about
when these beliefs violate the law?)
What is a Sufficient Pleading?
● Pleading is a “gateway to discovery”
● Rule 8(a): Gen standard: “short and plain statement of the claim showing that the
pleader is entitled to relief”
● Rule 8(d)(2): can plead alternatively or hypothetically (under info and belief),
claim is sufficient if any of them are suff
● Rule 9 requires higher pleading burden for items of “special damage” or claims of
fraud or judicial mistake
● Used to be just notice pleading Conley v. Gibson. Specific facts not rq’ed,
conclusory, ct didn’t confine pltf’s theory to facts in complaint
● Twombley and Iqbal heightened the fed standard to fact-pleading.
○ Now there needs to be (1) non-conclusory factual allegations that, (2) if
assumed true, would be sufficient for plaintiff to win
○ Court says facts and legal theories need to be plausible, but does it really
mean probable based on Iqbal?
○ Court specifically worried in Twombley about excessive discovery costs
from baseless or unlikely to win allegations (unwarranted settlement)
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Burden of Pleading
For Plaintiff:
1. Defeat 12(b)(6) motion
2. Discovery: Make sure requests are sufficiently/specifically related to pleadings
(not general subject matter of pleadings), relevancy not notice imp
3. Relating back amendments
4. Trial: Does def have enough notice or will they be prejudiced?
For Defendant:
1. Counterclaims
2. Affirmative Defenses
3. Rebuttable Presumptions
Assigning Burdens
Example: “If dog bites s’one other than on the owner’s property at night, then liable
Who needs to show the location and timing? Is it an element or a (affirmative) defense?
Factors courts consider:
● Probability proposition occurs
● Who has access to evidence (ex. only pltf knows where they were bit)
● Notice
● Existential-universal distinction
● Purpose of statute/harm to prevent
● Would factual allegations be enough if assumed true
How to serve defendant or waive service
● Must notify defendant of complaint with a summons. 90 day deadline for proof of
service to be submitted in federal claims
○ No response from defendant can lead to summary judgement
● Def can waive service (say if they were already in communication with opposing
counsel)
○ This is cheaper, but slower, so some plaintiffs will prefer just to serve
(although they may have to payback costs)
Claim Preclusion (res judicata)
● If def doesn’t doesn’t bring counterclaims related to same “transaction or
occurrence” during pltf’s litigation then they are precluded from doing so 13(a)
● Rule of Merger (Restatement of Judgments Section 18): judge in favor of pltf: (a)
pltf cannot then bring action on same claim, but to enforce judgment, but (b) if
action on judgment, def can’t use defences used or could have used in 1st action
● Rule of Bar (Restatement of Judgments Section 19): If def wins, then pltf can’t
bring new action on same claim
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● Both rq a valid (jurisdiction) and final (ct entered, even if appealable) judgement
● Exceptions to Rule of Bar (Restatement of Judgments Section 20)
○ If judgement was bc: lack of jurisdiction, improper venue, or misjoinder
○ Pltf agrees/elects or court directs pltf voluntary dismissal (nonsuit)
○ Rule of ct or statute says judgment doesn’t bar action on same claim
○ Bc pltf’s claim was premature or didn’t satisfy a precondition
● What to consider on whether a previously brought claim would be precluded?
○ Did the other court have jurisdiction to hear/provide relief for that claim?
○ What were procedures of prior ct? Were they meant to be expedited?
○ Same “operative” facts?
○ Could claims have been brought together?
● Don’t have to sue all defs at the same time, can sue some later or elsewhere
○ Why? Might not know all of the defs at the time; otherwise, it’d encourage
weaker claims to prevent preclusion
● What if diff states have different SOLs?
○ Rule 41(b) says that involuntary dismissals, except for lack of jurisdiction,
improper venue, and lack of joinder, are judgments on the merits
○ BUT Semtek v. Lockheed, S Ct says unless trial ct says otherwise, invol
dismissal only precludes new action on same claim in the same ct
■ Pros: What does MD care about CA SOL and vice versa
■ Cons: Repose
■ Need to clarify whether there’s prejudice or not on dismissal
● What is same claim? Restatement Section 24(2) answers, Facts that are part of
same transaction or series (or occurrence)
○ Related in time, space, origin, or motivation?
○ Forms convenient “trial unit”?
○ Grouping conforms to parties’ expectations or biz understanding/usage?
● What is precluded in a second action? Section 25(1)-(2) says:
○ Presenting evidence not presented in first
○ Claiming different injury from same wrongdoing, that was subject of 1st
○ Diff legal theory than first claim
○ Seeking new form of relief not demanded first time
○ But if pltf wins damages but not injunction, can recover for additional harm
that happened since trial Restatement Section 26(c)
● If multiple pltfs, can each sue def independ even if spouses, unless in privity
○ Taylor v. Sturgell S Ct: 6 exceptions
■ Contractual agreements
■ Pre Existing substantive legal r’ships (bailee/bailor, seller/buyer,
heirs) (basically new owner can’t lit same thing)
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■ Same legal interests as a party (properly conducted class actions,
fiduciaries, guardians)
● No notice, explicit statements, or procedural protections
■ Assumed control of existing litigation (puppeteer)
■ Representation by proxy (i.e. after the fact, so flip of exception 4)
● “Tactical maneuvering” is not enough – high bar: actual
control “principles of agency law” apply
● Allows people not to put all their eggs in same basket, test
different legal theories or diff courts/judges, 20/20 hindsight
● Might want to intervene to prevent bad precedent
● Def might try to force a joinder
■ Special statutory preclusion
Issue Preclusion
● Be ready to discuss and note the difference between this and stare decisis
Between the Same Parties
● Direct Estoppel: a party cannot bring the same issue up that was already
determined in a earlier litigation of the same claim
○ Example: if citizenship is already determined and case dismissed for lack
of jurisdiction, party cannot then claim they are a citizen of a different state
in a different court) not necc fatal to claim
● Collateral Estoppel: A party cannot litigate the same issue that’s already been
decided even if it’s a new claim
○ Example: Can’t challenge for new infringement of copyright, if you earlier
sued for infringement and court said patent was invalied, patent still invalid
○ Different from stare decisis: You can’t litigate same issue, but someone
else could (except for exceptions above in Taylor)
● Judicial Estoppel: If a party takes position in one suit and wins, then they cannot
take a different position in a different suit. BUT if the party loses then they CAN
take a different position in a new suit
○ Example: My employee wasn’t reckless, and win. Can’t claim employee
wasn’t reckless in a new suit. But if you lose first suit, can sue employee
for indemnification, saying he was reckless.
● Restatement of Judgements Sec 26 definition of issue preclusion. Must be:
○ (1) Actually litigated: You can sue on issue you didn’t bring up in earlier
litigation (but could have brought up) for suit on new claim
○ (2) Determined: i.e. if the issue was litigated but settled then no preclusion
(unless included in terms of settlement) OR if it’s unclear bc opacity of
verdict (when multiple factors could’ve upheld verdict)
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○ (3) Determination must’ve been essential to judgment: If uncertain bc jury
opacity, unsure whether it was essential then can bring claim
■ Example: Ct rules for def saying patent was invalid and didn’t
infringe. COA could just say no infringement and not consider
validity bc it doesn’t have to. Pltf might not want to have appeal bc it
knew no infringement, so what’s the point?
■ No preclusion if no appeal decision on necessary elements (AND),
but preclusion if sufficient/alt necessary elements even with no
appeal (OR); in other words, party needs to have “clear route to
review” for issue preclusion to apply
○ (4) Issue has to be the same or very close
■ Example: Determination of mental incompetence, could be new
claim but only of new transaction a week later. Presumption there
would be that still mental incompetence, burden on def to show
circumstances changed. But if the time frame is longer then no
presumption, but inference is still possible.
■ Burden on precluded party to show circumstances have changed
■ Spectrum for Judge to decide: Absolutely Precluded, Presumptively
Precluded, Sufficient, Evidentiary, to Inadmissible
● Exceptions (section 28 of Restatement of Judgement)
○ (1) Party couldn't have issue reviewed (i.e. matter wasn’t appealable or
became moot before appeal). NOT if choose not to appeal
○ (2) Issue is one of law and (a) Claims are substantially unrelated (q of
scope or applicability) bc stare decisis is more appropriate check OR (b)
the relevant law changed
○ (3) Courts have different quality or extensiveness of procedures (small
claims vs general jurisdiction). Might apply if unintended court incidentally
rules on an issue
○ (4) Burden of persuasion changes (lower for pltf, higher for def) or shifts
○ (5) Public policy reasons, unforeseeable effect (see below), or misconduct
● Non-mutual issue preclusion
○ Did party get its day in ct? If no, then no unfavor issue precision against it
○ Same adequate representation in privy exceptions from Taylor apply
○ Does litigation determine truth or is it a lot of randomness? Answer
informs approaches to NMIP
○ If winner who was in, can’t have preclusion against new def, no day in ct
○ If loser who was in, depends. Trad no preclusion against, but changing
■ Bernhard (CA COA) then Blounder-Tongue (S Ct) limited strict
mutuality rq, saying loser couldn’t sue someone else for same issue
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● Limits on application (1) only applies in federal question
cases in fed cts, not state or diversity cases; (2) wasn’t
complete disregard from non-mutuality, case-by-case
○ Restatement of Judgements Sec 29 similar to Blounder-Tongue. Case-by:
■ Unless lacked “full and fair opp” to litigate issue in first action OR
■ Circumstance justify relitigation: Exceptions in Sec 28 above and
● Was joinder possible in the first action?
○ Often a question of (personal) jurisdiction
○ Defensive: repeat losing plaintiff issue precluded by
new defendant (if no joinder, strike against)
○ Offensive: repeat losing defendant issue precluded by
new plaintiff (if no joinder, strike against)
○ Park Lane S Ct: Pltf waited to see if SEC would win
then argued issue preclusion, but pltf couldn’t have
joined SEC if it wanted to; also sometimes Def could
have tried to join cases (or remove/transfer and join)
● Different procedural opportunities available in determination
of issue? For example, more limited discovery in first action
○ Jury vs. judge FF not relevant/neutral according to
Park Lane S Ct; different then inconvenient forum
● Inconsistent verdicts: won, lost, can’t cherry pick pref one
○ Foreseeability of future suits (exception 5 above), did
def have incentive to fight hard on earlier one?
○ How frequent are loses/wins?
○ Can put a lot of pressure on first suit
○ Usually parties will just settle if repeat result and no
preclusion, bc def can more easily price value of suit
● Prior judgment maybe decided based on r’ship between
those parties and not future ones (example: direness)
● Prior judge was one of law that’s unsettled
○ For example same party is always the pltf
○ No offensive preclusion against US: Mendoza S Ct.
Otherwise, it’d encourage overly cautious case
selection and necessitate appeal
○ What about role of nationwide injunctions against US?
● Catch-all based whether circumstances make it appropriate
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Joinder (cross/counterclaims, impleading, interpleading)
● Arise “out of the same transaction[s] or occurrence[s]”
○ Pros/cons of joining parties together
■ Can affect credibility
■ Cost/efficiency (time, financially)
■ Strength of evidence
■ One could bias the other
○ Pros/cons of not joining parties together
■ Could get different sympathies/biases with judges, juries
■ One def could blame the other def (who’s being sued separately)
and vice-versa, both juries buy it, plaintiff ends up with nothing
● Rule 18(a) party may state as many claims it wants against an opposing party
● Pltfs may join together if asserting any right from same transaction or occurrence
and common questions of fact or law 20(a)(1). Same for defs 20(a)(2)
○ Generally def can’t add parties (can’t say I didn’t do it so Y; or I’m a victim
too, let me sue Z who also harmed me)
○ Impleading is exception. Rule 14. Derivative claim has to be contingent on
the first. If I’m liable, then you are too. If possibly liable regardless, then
not impleading claim. See Mitchell v. Hood.
● 13(a) if def doesn’t state counterclaims arising from same transaction/occurrence
then preclusion applies. Unrelated counterclaims not necessary 13(b)
● Crossclaim standard: Logical Relationship Test
○ Same operative facts must serve as basis for both claims must be large or
significant amount of overlap
○ See Melancon v. Town of Sorrento (police misconduct → discrimination)
○ Crossclaims only allowed if same transaction or occurrence 13(g)
■ BUT once crossclaim made those parties can state counterclaims
against each other (unrelated to original transac/occurr)
○ Consolidation under Rule 42(a) if common q of law or fact
● Compulsory Joinder – Rule 19
○ Would a party be unable to receive complete relief in the absence of
another party? Or would a party’s interests be so impeded their ability to
protect their interest or leave at risk of inconsistent obligations? Rule 19(a)
■ Joint tortfeasors aren’t necessary See Temple v. Synthes Co.
○ Is joinder feasible? (i.e. is there personal or SM jurisdiction?) 19(a)
○ Required?
○ Feasible?
○ If not feasible? Can suit continue or is party indispensable?
○ Should the party be treated as indispensable? Rule 19(b)
■ How much prejudice to existing parties or the new party?
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■
■
■
■
Could prejudice be fixed by making adjustments?
Would judgment be adequate in their absence?
Will pltf have adequate remedy if case dismissed for nonjoinder?
Risk of inconsistent judgements for def that are bc of their
misconduct or bad actions (inconsistent contracts) is their fault and
can’t be basis for prejudice? Also limit speculation. Helzberg
Intervention Rule 24
● Does a third party have an interest related to property/transaction of the lawsuit?
● Based on the third party’s position, would the lawsuit impair or impede their ability
to protect its interests, unless adequately represented in the lawsuit (resources,
level of interests)? Risk of bad precedent?
○ Ex) MHSAA tennis players and the switching of seasons based on
volleyball and basketball.
■ Class claims to represent but is the one asking for adverse action
■ MHSAA doesn’t only care about tennis could use as pawn for
overall interests, not center tennis’ testimony/evidence
● Need timely motion to intervene
● If denied intervention bc adequate rep means interests aligned but no preclusion!
● No unfavorable preclusion against you if no intervention when you could have,
burden is on parties to move for joinder See Martins v. Wilks (white firefighters
suing city for following racial discriminaton consent decree)
○ Questions about notice, would it really make it easier, less relitigation?
○ Federal law overturned this case specifically for Title VII cases if new party
had knowledge of suit and ioo to intervene or was adequately repped
○ BUT if you could have intervened on a winning side, then it’s a factor
against trying to use offense nonmutual issue preclusion
Class Actions Rule 23
● Court has to certify class
● Four prerequisites for a class under 23(a)
1. Numerosity: joinder of all members impractical
2. Commonality: common q’s of fact or law
3. Typicality: Class reps’ position/interests w/ respect to suit are typ of class
4. Adequacy: Reps will fairly and adequately rep class
● Four types of classes under 23(b) (but ignoring first type)
○ (1)(B) Judgement for one party would necessarily affect or impede
interests of others (i.e. exhaustible common fund).
■ Discretionary notice to class members
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●
●
●
●
●
●
○ (2) Def has acted with respect to whole class, so injunctive or declaratory
relief more appropriate (illegal practice of incarcerate people at a prison)
■ Discretionary notice to class members
○ (3) Common questions predominate cases, at least at beginning
■ Mandatory notice of class mbrs, most practical way under circumst
■ Can be subclasses, when interests diverge
■ Arbitration limits substantially AT&T Mobility v Concepcion
Notice requirements Rule 23(c)(2)(A-B). Paid for by class reps
Ct selects of class atty if competing ones. Best able to rep class interests 23(g)
○ Xp with this type of case?
○ Financial conflict of interest? Make sure no collusion, ensure “arms length”
Denial or grant of class certification is appealable, as interlocutory, but
discretionary acceptance of appeal by COA Rule 23(f)
Any type of class action can’t settle w/o notice to class members 23(e)
○ Allow for members to object
○ Unless ct approval, holdouts can’t be paid off. To prevent holdout sharks
or backroom deals with corp and class atty
○ Can be special master/mediator to oversee negotiations. Ensure arms
length, fair, adequate, and reasonable settlement
Plenary (cert before) vs. Settlement (agreement then cert) vs. Negotiation (ask ct
for cert to negotiate as class before agreement)
See notebook for more details on Flint class action settlement if necessary
Preliminary Relief
● Temporary Restraining Orders Rule 65(b)
○ Can be issued w/o notice to defendant (ex parte), rqs affidavit from
plaintiff, usually filed with complaint. 14 day limit for first TRO
○ Reasons for TROs: prevent retaliation/further harm (DV), protect/freeze
assets, prevent imminent action (demolition)
● Preliminary Injunctions Rule 65(a)
○ Hearing required with both parties, must be notice
○ Longer periods of time, modifiable, and appealable
○ Can be consolidated w/ trial motion 65(a)(2) Why? Expedited trial, but still
time deciding case and possible appeals. “Keep eggs unscrambled”
● Balance likelihood of success with magnitude of harm to parties (standard is
irreparable harm)
● Writ of Replevin/Attachment: grants parts possession of goods/property upon
sized before ct judgment
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NRDC v. Winters (“possibility” of irreparable harm is too lenient it needs to be “likely”)
● Dissent and prof disagree stating that it’s really a “sliding scale” and that the
magnitude of the harm is weighed against likelihood of victory (for example 40%
chance city block destroyed isn’t more likely, but would likely warrant a PI)
Stays
● Similar to preliminary injunctions but after conclusion of case: ex) upon appeal
Responding to the Complaint
● Parties usually object if asked for discovery or evidence provided at trial that
wasn’t within the pleadings
Motions
● Defense has 21 days to respond. But can ask either plaintiff or court for
extension (usually granted)
● 60 days to respond if waiver of service was agreed
● Defense can also respond with dispositive motions under rule 12(b) to get
complaint dismissed or require amendment
1. Subject matter jurisdiction
2. Personal jurisdiction
3. Improper venue
4. Insufficient process
5. Insufficient service
6. No valid claim upon which relief can be granted
7. Rule 19 (improperly joined cases or failure to join parties)
● 14 extra days to submit answer from when dispositive motion is denied
● 12(b)(2) through 12(b)(5) must be raised early and together (for the ones you
want to submit), otherwise the right to those claims are waived. If you don’t raise
any you can include in your answer.
○ Why? These are thresholds, why even proceed if not met?
● 12(b)(6) motions argue for either
○ Inadequacy (too vague and/or conclusory)
○ No legally viable claim
○ If presenting evidence outside of the pleading (ex. debt was actually paid)
then it becomes a motion for summary judgment
The Answer
● Can amend answer 21 days after submission Rule 15(a)(1)
● Three possible components (first of which will always be present)
● Response to allegations of complaint rule 8(b)
○ “General denial” of everything Rule 8(b)(3) – rarely happens
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●
●
●
●
■ Rule 11(b)(4) requires denials to be based on evidence or if
specifically identified on reasonable belief or lack of information
○ If no general denial, then need to go one by one
■ Can deny parts of allegations
■ Prof aggressive about denying whole allegation, say if there’s a
modifying adverb you disagree with, style/risk of atty, ct
■ Can deny knowledge or information about allegation = denial
○ If no response to an allegation, then it becomes established without need
for plaintiff to prove
Affirmative defenses Rule 8(c)
○ Yes, but; even so; even if
○ Raise now or too late, unless court specifically allows
Counterclaims/crossclaims Rule 13 [See Joinder section]
Impleading Rule 14
Plaintiff can ask for judgment on pleadings Rule 12(C) if def admits enough
Amended Pleadings
● Parties can amend filings 21 days after filing Rule 15(a)(2)
● Can be beyond if the opposing party or court agrees. Court should if “justice so
requires” Rule 15(a)(2)
○ Pref for substance over procedure, UNLESS too much prejudice to def
○ Would def be worse off with amended complaint compared to if new info
was included in original complaint?
■ I.e. consider notice, preservation of evidence, added expense
● Courts can postpone trial (continuance) in order to allow amendments without
creating prejudice Rule 15(b)(1)
● Prejudice: Where one party is now vs. where they would be if the action is
granted. In the Aquasilde case, where would pltf be now vs where would they be
now if the def had correctly denied its manufacture of the slide?
○ Each side will try to broaden or narrow the gap between those positions
■ Bad now vs. not that bad now, AND
■ Would have been better vs wouldn’t have been much better
● Can amend an amended complaint if amended complaint w/in SOL
● Relating back [if SOL or contractual filing period ran out when trying to amend]
○ Courts don’t have discretion on relating back, but do have it on amending
complaints, so ct could prevent amend if they believe relation back unfair
○ Rule 15(c)(1)(B): Factual amendments allowable if it “arose out of same
transaction or occurrence” set out or attempted to be in original pleading
■ Close in time? Subject matter? Same harm?
■ Broad or narrow interpretation fought over
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■ Limited discovery can be allowed for this motion
■ Examples Porter (med malpractice neurocare, radiology, RB), Zeh
(slip and fall location, no RB), Tiller (train light, RB) Huntoon (gen
sickness to spine injury, RB but did they get lucky?)
○ Rule 15(c)(1)(C): Def can be substituted if 2 conditions + Rule 4(m) met
■ Rule 4(m): Must serve def w/in 90 days of complaint
■ New def received notice of (or knew) summons, so no prejudice bc
notice
■ New def knew or should’ve known not named bc of mistake to ID
■ Burden isn’t on pltf, lack of pltf’s diligence irrelevant. Difference
between pltf’s mistake and fully informed decision (any other
reason to sue? If no, then probably a mistake)
○ Open q: Relate back when original complaint insufficient for 12(b)(6)?
● Def can amend their pleadings too (Beeck waterslide case)
○ Can be tort liability if pleading amended in bad faith
■ Did SOL bar new claim and would pltf have won against correct
def? I.e. were pltf worse off than if def didn’t act recklessly
● Abuse of discretion standard for appeals
Equitable Estoppel: Ct won’t give judgment or legal relief to a party who hasn’t acted
fairly; ex, by making false representation or concealing material facts from other party.
Discovery
Mandatory Disclosures 26(a)(1)
● List of general info to opposing party that disclosing party intends to use
(excluding if solely for impeachment)
Requests for Admission Rule 36
● Yes/no questions: only to opposing party
● Similar consequence to pleading, fact established, but usable only in this action
to help encourage admission, limit repercussions for future liability
● Other side can take back later, but opposing can argue its prejudicial if it leaves
them in a worse position than if the admission had never occurred
Four Questions to first ask
(1) Discoverable? (2) Within request? (3) Protected? (4) Dangerous?
Evaluating discovery requests (burden usually on requesting party to meet)
● Proportional to needs of case
● Weigh importance of issues at stake and of the discovery in resolving issues
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● Amount in controversy
● Parties’ relative access to info and their respective resources
● Whether burden or expense outweighs likely benefits
Interrogatories Rule 33
● Written request to opposing party
● Open ended requests and questions directly to parties ONLY, signed by atty
● Evidentiary admission not judicial (so not established as fact, for jury to decide)
● 33(d): you figure it out from our records, we’re not in better position
Production Requests for Documents/Exam of Land/Tangibles Rule 34
● To opposing party OR
● Can send to 3d party too under Rule 45 not 34, no need for sep doc request
● Needs to be reasonable and proportionate request, as these can often be huge
responses that have to be scanned for privileged/w-p info, often negotiation
Physical and Mental Examinations Rule 35
● Only requestable to parties of case
● Condition must be “in controversy” & there must be “good cause” for the exams
● Conclusory statement in pleading aren’t sufficient
Schlagenhauf v. Holder S Ct 1964
Depositions
Purposes
● Preservation of Testimony: W/ ct permission can take before bringing complaint,
if expect to be favorable and reason to believe unavailable at trial
● Discovery: Fact find, see what deponent would testify, and confine testimony;
○ Live testimony pref, so wouldn’t depose friend wit, gives info to adverse
○ Why? No follow up, not as compelling, no judg for objections. But saves $
○ Exception: show strength of case and try to get a settlement
Permissible Uses at Trial
● Unavailability (death, incarc, lives far away): Rule 32(a)(1)(A) and 32(a)(4)
● Admissions: Rule 32(a)(3), Doctrine of Party Admissions, may admit at trial if one
party said to another party or its agent ONLY (if another party gets added later or
it's said to a different party then it doesn’t apply) otherwise hearsay. Not just dep
● Inconsistency: Rule 32(a)(2). Impeach witness if inconsistent, lying then or now
○ Rule 801(d)(1)(A) of Fed R. Evid. allows inconsistencies to be proof of
truth as well as impeachment
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Steps for Arranging: (1) place/platform; (2) Secure presence [subpoena is Rule 45(d)],
(3) written notice to other parties, (4) someone to give oath, record, and notarize
Conduct of Deposition
● Written questions possible Under Rule 31, but not favored
● Objections to form of deposition or of questions waived if not made during dep
Rule(d)(3)(B)
○ Why? Give atty time to correct at the time and try again
● Can ask leading witnesses to opposing witness
● Answer through objections unless, atty advises not to answer bc privileged,
beyond scope of discovery or irrelevant. That’s broader than Rule 30(c)(2) allows
for instruction not to answer, but Rule 30(d)(3) prevents questioning in “bad faith”
or to “unreasonably annoy, embarrass, or oppress.”
● BUT objections to answers can be made at trial. Why? Unsure of use til then
Privileged Information
● Communication between certain parties protected as a class
○ Atty-Cl, Spouses, Doctor-Patient (including therapist), Clerical, Journalistic
○ Person making the communication holds the privilege
○ Why? Would inhibit necessary communication, or intrude on privacy
● Atty-Cl priv only applies to clients, not third parties. Giving existing info to atty
doesn’t make it privileged per se unless there’s new communication
● Applies to mid/lower level members of corp Upjohn Co v. US S Ct 1981
● If non-party is present then privilege is destroyed for that comm (UPS guy ex)
● Must assert privilege when denying discovery requests and still describe to allow
appeal/judicial review Rule 26(b)(5)(A)
Work Product Doctrine
● “Files and mental impressions of atty”: written statements, private memos,
personal and mental recollections of atty in course of legal duties.
○ Why? Atty needs some degree of privacy, would remain unwritten
otherwise or atty’s would turn in to normal witnesses
○ Where? Hickman v. Taylor + Rule 26(b)(3)
● Not absolute, other party can obtain if shows “necessity,” “hardship,” or “injustice”
if they remain hidden. I.e. only way to obtain info. Burden on moving party
Expert Witnesses
Types of Expert Witnesses
● Trial expert.
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● Interrogatories ask or required report answering: who they are, subject matter of
testimony, substance of facts & opinions, summary of the grounds for opinion
○ Can depose after this report Rule 26(b)(4)(A)
● Consulting Expert (paid for their advice): Generally exempt from discovery,
except as under Rule 35(b), “exceptional circumstances” or impracticality
○ See Chiquita S.D.N.Y 1994 (not question of fact v. opinion witness but
whether they were retained specifically for trial prep; if expert not at trial,
perhaps bc unfavorable evidence?)
● Percipient Expert (info acquired not in prep for trial but for other reasons related
to subject matter of trial): treated as ordinary witness, compellable to testify
● Informal expert (not specifically retained): precluded from discovery
● General-Employee Expert: only discoverable under “exceptional circumstances”
Abuses and Sanctions
Destruction/Tainting of Evidence Rule 37
● Once litigation is expected you must preserve evidence or give other party
chance to examine evidence if not preservable
○ Zhi Chen case, Red Roof ESI destruction. Considered obligation to
preserve, “culpable state of mind,” relevance and likely favorability of evid.
Importance and availability of other proof
○ Judges can take steps to correct prejudice. Question of what to tell jury
Deposition Misconduct
● Rule 30(d) prevents actions that “impede, delay, frustrate” deposition
● Sec. Nat Bank Sioux City v. Abbot: Judge against
○ (1) objections “as to form” not specific enough, but other juris. require
○ (2) Witness coaching: answering for/correct. deponent, leading objections
○ (3) Excessive interruptions
○ Judge overruled bc opposing counsel didn’t object & no fair warning
Deadlines – they are sharp & missing them is bad and grounds for malpractice lawsuit
Burden of Production
● On pltf usually, unless its an affirmative defense or shifted bc of a presumption
● Presumption: If A → B, unless rebutted
○ Examples: McDonnell Douglass discrimination cases
● Judge finds burden of production; jury finds burden of persuasion
Summary Judgement
● Would most persuadable reasonable jury be able to find for non-moving party?
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○ Disregard all evidence favorable to moving party that jury isn’t required to
believe, unless its “uncontradicted and unimpeached” and comes from
“disinterested witness” but if interested q is still up see Penn RR case
○ A brick isn’t a wall, build case brick-by-brick, but if not enough bricks in
wall then def gets SJ
● Admissible evidence in light most favorable to non-moving
○ Is it hearsay or personal knowledge? Speculative? Conclusory?
○ Friendly trial witness testimony can be summarized in affidavit for judge
○ Celotex: Def doesn’t have affirmative duty to negate pltf, pltf still has
burden of production and persuasion
○ If there're non-admissibility issues with evid should judge allow jury to still
weigh the evidence or preclude its admission?
● Harder for plaintiff
○ Burden of persuasion always on pltf to show that they have enough evid
○ Plaintiff needs to meet all elements, def only needs to show one failed
● Denial of summary judgement often leads to settlement talks. Partial SJ possible
Trial
Jury Selection
● Challenges for cause (unlimited; must persuade judge; competence/bias)
● Peremptory challenges (no reason needed, but can’t be bc gender/race)
Jury Instructions Rule 51
● Can be divided, up to ct, but usually sides argue b4 substantive instruct.
Judgment as a Matter of Law
● Consider evidence in light most favorable to non-moving party. Doesn’t mean
disregard uncontested or unimpeached evidence of non-moving party
● Why would this happen but not SJ? Evidence didn’t pan out in court, no motion
for it, judge wants to see testimony, cost/benefit based on likelihood of appeal
Directed Virect
● Determination that reasonable jury applying law properly couldn’t reach verdict
for one side, judgment should be granted as a matter of law
J.N.O.V. Rule 50(b)
● After verdict judge can still decide case as matter of law
● Need to make motion before submitting to jury otherwise waived, court reserves
its decision as long as it isn’t granted/denied. Bc of 7th amend and Slocum case
● Usually not made b4 jury, bc legitimacy and reduces possibility of a new trial
Motions for New Trial
● Why? S’thing bad happened at trial (jud error or prejudicial evid outside ct room)
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● OR against great weight of evid, but this is rarer and judges usually grant JNOV
instead bc new trials are expensive, rather than entering no judgment at all
Remittiturs and Additurs
● If judge thinks damages too high, they can force plaintiff to agree to lower
damages over threat of new trial.
● If too low, then at federal level bc Dimick v. Schiedt case too bad. State level ok
Appeal
● Cross-appeals possible when one side didn’t unambiguously win
● Standards of appeal
○ Questions of law reviewed de novo
○ Questions case management reviewed on abuse of discretion
○ Questions of fact, reviewed only when “clearly erroneous,” give “due
regard” to trial court’s assessment of witness credibility Rule 52(a)(6)
Jurisdiction
● Presumptively only allowed on final order, but interlocutory/intermediate appeals
sometimes, espe at st ct level
○ Injunctions appealable immediately (no discretion)
○ D judge can certify q and ask COA, who can discretionarily answer
○ Collateral order. Diff from relief of case (i.e. sanctions and immunity)
○ Writ of mandamus (not tech an appeal)
○ Grants/denials of class certification
○ CAFA denial of motion to remand to state ct
○ Partial judgement/judgment in part
Supreme Ct
● Original: no trial, special master appt’ed files report
● Appellate: Discretionary, grants cert
○ Supervisory power over fed cts
○ Can hear state cases if fed question arises (even defenses/broader than
fed q jurisd.). Unless indp and and adequate state grounds would uphold
Roles of Court and Jury in Fact and Law Finding
Court as Factfinder
● (1) Bench trial, (2) factual matters for procedural matters, (3) confining factual
findings jury can make
● Judicial notice
○ Adjudicative facts can’t be reasonably questioned (directions, weekday)
○ Law-making/legislative facts: General/normative facts that the court
determines (think Brown v. Board examples). Doesn’t need support or to
be part of parties’ arguments (A → B, not if A → B)
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Jury as Determiner of Norms
● To some extent jury will always make normative judgment, but court can confine
scope
● Judge may restrict bc arguments make bad public policy or misinterp statute
Opacity of Verdict
● Rule 49 allows judge to ask jury for general verdict and/or specific question (i.e.
to get at each element, in case of appeal, if COA decides some are necessary)
○ But this is unusual as it takes more work and inconsistent verdict possible
Relief from Judgment
● Rule 59(b) allows for motion for new trial no more than 28 days after judgment
● 60(b)(1) if “mistake, inadvertence, surprise, or excusable neglect”
○ I.e. late in answering a motion. Excuse doesn’t necc have to be good one.
■ How quickly corrected? Part of deliberate plan? Merits still viable?
Most importantly, prejudice to party that won judgment?
● 60(b)(2) if “newly discover evid” that couldn’t have been discovered with
“reasonable diligence” in time for trial
○ Hard q’s on why it wasn’t found/introduced at trial
○ Need to be facts (but not evidence) that existed at trial and likely to have
yielded a new result; just impeachment or cumulative evid not enough
■ Ex) Fact in existence, there was a fraud, but no audit yet to show
■ Ex) Not fact: Short life expectancy but pltf still alive during trial
● 60(b)(3): “fraud, misrepresentation, or misconduct”: Perjury not necc enough, but
faking evidence (plan by lawyer to cheat court is enough, ex Hazel expert report
not neutral but written by party’s counsel)
● Rule 60(b)(1)-(3) have one year time limit; except for (3) if fraud was on court,
then no time limit Rule 60(d)(3)
● Rule 60(b)(4): Judgment was void, ex. The other ct didn’t have proper jurisdiction
● Rule 60(b)(5) allows for relief if judgment “no longer equitable” i.e. outdated
injunction – don’t need to show something extraordinary happened
Settlement Ethics
● Rule 1.2: Cl has ultimate say on decisions. Possible to end if atty-cl r’ship breaks
down. Cl can preauthorize specific actions, but can revoke.
● Rule 1.4: Atty must promptly consult w/ cl on their goals and communicate and
secure consent about any settlement offers. Consult on methods but not
play-by-play in negotiations
○ Rule 4.1 can lie/misrep cl’s positions (not facts of case) in negotiations
● If it goes south, what will it look like?
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What will future r’ship of parties be?
Can’t keep repping multiple pltfs in suit or class if COI btwn parties in offer
Can’t use threat of criminal prosecution
Lawyer can’t make an agreement to confine their practice of law
○ But S Ct in Evans v. Jeff D allowed settlements where cl gets everything
they want contingent on cl’s atty not getting fees (killed industry of private
small claims civil rights attys) against leg intent but reduced litigation
Who Pays?
● Generally user pays not loser pays in US as opposed to rest of world
○ Oversimplification bc many statutes (like civil rights) provide loser pays
○ When loser pays “prevailing parties” fees covered but must be relief by ct,
voluntary actions from pressure catalyzed by suit don’t count Buckhannon
■ Settlement or consent decree do count for prevailing party
● Rule 68: if pltf rejects def’s settlement and then wins judgment less favorable
then rejected settlement, then pltf covers costs from time after rejected officer
○ Marek: In above situation, if pltf won atty fees, then don’t win after rejected
more favorable settlement offer (only one federal law 1988)
● Fixed fee, hourly fee (w/ retainer), contingency fee
● Third-party payments: Insurance companies
○ Insurer usually provide atty for both insured and insurer, often COI w/
settlement offers (if w/in limit insured wants to take offer, but not insurer,
reverse if outside limit – different risk tolerances)
○ Some duty to settle: insurer must take insured’s interests at least same as
own, consider as it it needed to pay the whole amount, so if there’s big risk
of liability over policy limit, if lower then still COI. Expected value
calculation. Communale v. Traders & General Insurance CA S Ct
Alternative Dispute Resolution
● S Ct very pro-arbitration, takes disputes out of court system. Disputes about
whether should go to arbitration also need to be decided by aribtrator not court
Nitro-Lift; AT&T v. Concepcion
● If parties want to maintain r’ship, quickly, and w/o acrimony often agree (ahead of
time usually) for mediation
● Cts often have mandated mediation, favor settlements (MI case evaluators)
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