CivProIIOutline--Schwemm
1
Kelley Williams
ON Test, be certain to explain that it is the same transaction/occurrence, don’t just say it.
ALSO on test Go three all three SMJ everytime, and better to example Same C/C is broader than Same T/O
On test, it is good to say the statute is ambiguous and then explain both sides.
Go highlight the Supplement before Final
REVIEW OF SUBJECT MATTER JURISDICTION
BACKGROUND
1. SMJ the power of the court to hear the nature of the dispute
2. Can be concurrent between Federal and State Court
3. CANNOT BE WAIVED Rule 12h3 must be dismissed whenever discovered
4. State SMJ since courts of general jurisdiction usually all, but split by specialty and $ amount.
5. US District Ct is a court of limited Jurisdiction.
a. All US District Cts. have SMJ if one does
FEDERAL QUESTION JURISDICTION
1. 28 U.S.C. § 1331
2. US district cts. shall have original jurisdiction of all civil actions ARISING UNDER the Constitution, laws, or
treaties of the US.
a. Must be DIRECTLY arising under, meaning construed narrowly.
b. Cannot be an anticipated defense
3. TEST—Two ways to have Federal Question Jurisdiction
a. When federal law creates a cause of action (see well pleaded complaint rule) OR
b. When the resolution of a state issue/cause of action turns on the construction of a federal law
4. TEST—Well Pleaded Complaint Rule
a. Look at the complaint
b. Strip down the complaint to the most basics (no expected defenses/answers)
c. Is a federal issue essential to the complaint?
DIVERSITY JURISDICTION
1. 28 U.S.C. § 1332
2. Generally
a. Must have complete diversity between Ps and Ds (Strawbridge Rule)
b. Must be a claim of at least $75, 000
3. Determining Citizenship
a. Generally
i. Timing is Key Citizenship at the time the lawsuit is filed
ii. § 1359  Parties cannot be collusively joined to get diversity (courts only llok at real
parties in determining diversity
iii. Burden on party claiming diversity to prove it.
b. For a Person
i. For diversity, a party is a citizen of the state in which he is domiciled.
ii. A person only has one citizenship for diversity
iii. An alien is in US permanently is a citizen in the state he is domiciled, but is citizen of
home country if not
iv. Test— Change in domicile/citizenship requires
1. Taking up residence in a different domicile, AND
2. Intention to remain there
v. Factors to Consider
1. Did you get a new drivers’ license
2. Where is your stuff
3. Rented v. Purchased
4. Where you are paying taxes?/Are my parent’s still claiming you?
5. Where you vote
vi. The legal representative of the estate of a decedent is only considered a citizen of the
state of the decedent.
CivProIIOutline--Schwemm
2
Kelley Williams
c.
4.
For a Corporation
i. TEST— Corp is a citizen of two places:
1. The state it is incorporated in (can be more than one state) AND
2. State of its Principle Place of Business (only one)
a. Determining PP of B
i. General Rule, Use the location of the main Plant (Corporate
Activities test)
ii. If more than one plant, then use Location of headquarters
(Nerve Center Test)
iii. Or combo (Total Activity Test)
d. For Other Entities
i. Association/Partnerships’ Citizenship determined by the location of all its members (look
at each member individually)
ii. The legal representative of the estate of a decedent is only considered a citizen of the
state of the decedent.
Amount in Controversy
a. Must exceed $75,000
i. Exclusive of interest and costs
ii. Including actual/punitive/emotional damages and value of injunction
1. Can be valued at any viewpoint (Benefit to P, cost to D, or both)
b. If the verdict is for less than 75K, there was still SMJ to start
i. Special Exception—judge may deny costs to discourage P from stretching the damages to
get it into Federal court
c. Rule for Dismissal
i. The sum claimed by P controls if the claim is apparently made in good faith
ii. Must appear to a legal certainty that claim is really less than $75K to dismiss.
d. Aggregation Rules
i. General Rule You cannot aggregate claims to meet the requirement
ii. Exceptions
1. A single P can aggregate against a single D (unrelated claims)
2. If Ps have joint rights/interest (ie own a horse together)
3. Ps may aggregate if there is an indivisible harm
SUPPLEMENTAL JURISDICTION
1. Background
a. Turns a NO into a YES for federal jurisdiction
b. Gives the court the power to hear it, but has the discretion not to
c. Can include additional parties
d. Reasons To discourage piecemeal litigation and not to discourage P from Federal Ct.
2. At Common Law derive from “a common nucleus of operative facts”
3. 28 U.S.C. § 1367
4. TEST—SJ if the first claim has original jurisdiction and the second claim is from the “same case or
controversy.” (Part a)
a. Exception if Original jurisdiction is based on Diversity(1332), then the supplemental CANNOT
DESTROY DIVERSITY (Part b
i. Key is to make sure the exception applies to the rule
5. Reasons to decline SJ
a. The claim raises a novel or complex issue of State law,
b. The claim substantially predominates over the claim or claims over which the district court has
original jurisdiction, (ex. is that the state claim could offer substantial more relief)
c. The district ct. has dismissed all claims over which it has original jurisdiction, OR
d. In exceptional circumstances there are other compelling reasons for declining jurisdiction
JOINDER OF CLAIMS AND PARTIES
GENERAL PROCESS (REMEMBER TO THINK LIKE THIS)
CivProIIOutline--Schwemm
1.
2.
3.
3
Kelley Williams
State Court
a. Does a rule authorize it?
Federal Court
a. What rule gives you the power?
b. Is there Subject Matter Jurisdiction?
i. Federal Question 1331
ii. Diversity and Amount 1332
iii. Supplemental 1367
1. Remember part b only applies to P and certain rules
Note Same Transaction or Occurrence requires Some Logical Relationship.
CLAIMS
JOINDER OF CLAIMS RULE 18a
1. Once a party asserts a claim against a party (original/counter/cross/third party—ALL), MAY join
any other claim he has against the party.
a. Can be a Totally unrelated claim (dog killing)
b. Only goes one way.
2. Only limitation is SMJ, in that the joined claim must independently satisfy SMJ.
a. As for supplement Jurisdiction (but doesn’t apply that often)
i. 1367(a) requires “same case or controversy”
ii. 1367(b) doesn’t apply to Rule 18
b. As for Diversity and Amount
i. Appears you cannot aggregate (since must be Independent SMJ), but one exception?
1. You can aggregate if you have a single P against a single D.
3. This is Permissive, not compulsory
4. This rule is very Liberal, allows a lot added to reduce multiple suits
a. Old C/L only allowed single claims, not additional ones.
5. FRCP 42 judge could separate the claims into separate trial if it wants to.
6. REMEMBER TO ALWAYS CHECK FOR RULE 18 AGAIN AT THE END EVERY TIME.
COUNTERCLAIMS RULE 13
1. KEY PHRASE SAME TRANSACTION OR OCCURRENCE
a. Been interpreted very broadly to only require some logical relationship
i. Such as same issues of law and facts or same evidence, etc.
2. Compulsory Counterclaim Rule 13(a)
a. It is RequiredSHALL
b. Pleader shall bring a counterclaim if it “arise out of the same transaction/occurrence that is the
Subject matter of the previous claim”
c. Must have the claim at the time of serving
d. Exceptions
i. Already in a different pending suit OR
ii. Court cannot get P.J. over other needed parties
e. Punishments for not bring a Compulsory CounterclaimAn unasserted Compulsory
Counterclaim cannot be brought in a later suit
3. Permissive Counterclaim Rule 13(b)
a. MAY Rule
b. “any claim against the opposing party not of the same transaction/occurrence.”
i. Thus, can be Totally unrelated.
c. You can bring the claim now, or later in a separate suit.
4. Why the Distinction Matter
a. Thus, the distinction matters for the second suit, not the first.
i. So always bring any somewhat related claim in suit one because 13a counterclaim is
barred in suit two
b. Can allow counterclaiming party to get a claim into Fed. Ct. it couldn’t on own
(?Determining Supplement Jurisdiction in Federal Courts?)
i. Book say test for 13a/13b is the same as 1367, THUS
CivProIIOutline--Schwemm
5.
6.
7.
8.
4
Kelley Williams
1. 13a counterclaim is a Yes to 1367
2. 13b counterclaim is a No to 1367 thus need independent SMJ basis
ii. However, this is not certain since test for Counterclaim is “same transaction or
occurrence” and test for S.J. is “same case or controversy”
1. New S.J. Test (same Case or controversy) might be a little broader than
same transaction or occurrence meaning there can be some 13b counterclaims
that are a yes to Supplemental Jurisdiction.
For SMJSupp. Jurisdiction 1367b doesn’t apply to Rule 13
Note As to Parties
a. Can be made by anyone (P, D, 3rd Party D, etc.)
b. Rule 13h Can make additional parties subject to counterclaim (and cross-claims) if consistent
with Rule 19 and 20
Remember Process
a. What rule 13a or 13b
b. SMJ?  Classification can affect decision maybe and 1367b doesn’t apply
Other points
a. Rule 13c Can exceed the reward from claim not limited by amount owed.
b. Rule 13f if omitted can be amended with leave of court.
CROSS-CLAIM—RULE 13(g)
1. MAY rule
2. Requirements
a. Can assert a cross-claim against any Co-party.
b. It must arise out of the Same Transaction/Occurrence of the subject matter of the original
claim OR a counterclaim.
i. Can be for indemnity (since cannot get by rule 14 since already a party.)
3. Co-Party Parties on the same side.
a. An impleaded TPD is considered a Co-party to other Ds
4. Restriction some courts do not allow a cross claim between Ps
5. Issue of SMJ
a. Again look for Federal Question and Diversity First.
b. If using 1367
i. 1367a is satisfied since it must be Same Transaction/Occurrence (which is good enough
for Same case or controversy.
ii. 1367b is OK since it doesn’t apply to Rule 13
1. Thus, you can cross claim against people in the same state.
6. ALSO Rule 13(h)
a. Non-parties of original action may be made parties to a counter-claim or cross claim as long
as consistent with Rule 20 (Same T/O and common question) and Rule 19 (
i. Thus, this lets you add someone you couldn’t by 14, 19 or 20
ii. Thus, To invoke 13(h), a party must be asserting a rule 13(a, b, or g) claim against
somebody who is already a party
PARTIES
THIRD PARTY PRACTICE RULE 14 --IMPLEADER
1. PartsCALLED IMPLEADER
a. 14a applies to Ds
b. 14b applies to Ps using it after a counterclaim against them – same analysis
i. And not treated as the P anymore for purposes of 1367b
2. Rule
a. D becomes the TPP, and added party is the TPD
b. Allows joinder of party that “IS OR MAY BE LIABLE” to TPP for “ALL OR PART” of the
P’s claim against TPP. (usually comes from contracts/indemnity)
i. Person cannot already been a party
ii. Usually called a Derivative claim
c. Timing
CivProIIOutline--Schwemm
3.
4.
5.
6.
5
Kelley Williams
i. If done within 10 days of serving answer, no leave needed
ii. If after 10 days, must get leave of court.
1. Judge Balance benefit of one suit v. cost of prejudice and disruption.
d. TPD can make any defenses/claims of own (i.e. counter or cross)
i. TPD may assert any defense against P as D can use.
e. TPD can also assert any claims against P arising of same transaction or occurrence.
f. P can bring a claim against TPD as long as arising out of the same transaction or
occurrence. (but need independent SMJ)
g. Any party can move to strike a third party or sever for separate trial
h. TPD can use this rule the same way D is using it.
i. Must be after start of action.
Remember, this is A MAY Rule thus can bring in a separate action.
The relation between the indemnity claim and the original claim in that if the original claim is dismissed,
then the second claim drops out
Issue of SMJ
a. All the claims seem OK under 1367a because they have to be “same transaction or occurrence to
satisfy Rule.
b. Effect of Rule 14 with 1367b
i. Doesn’t stop the Adding by D, because 1367b only says claims made by P.
ii. Does stop the adding by P, because it would be around Diversity since a claim on a
party added by rule 14
1. Thus, there would be no Supplemental jurisdiction.
See page 7 of class notes
PERMISSIVE JOINDER OF PARTIESRULE 20a
1. MAY rule, so can bring separate claims
2. This rule seems to apply before the suit in deciding who are the original Ps and Ds
3. Allows both multiple Ps and Co-defendents.
a. Controlled by P.
4. Applies to joint, several, or alternative rights (ex. either plane or pilot messed up)
5. Requirements
a. Arise out of Same transaction/occurrence or Series of Transactions/occurrences AND
i. Same T/O is to be “logically related”
b. There is a common question of law or Fact.
6. Applies to both Ps and Ds (difference is Ps asserting it, and D’s against it)
7. What is a Series of Transactions/occurrences
a. Seems to be some regular activity
i. Ex engine caused multiple crashes.
8. Rule 42a judge can consolidate claims if common question of law or fact.
a. Rule 20 backwards, but easier since only half the test.
9. Issue of SMJ
a. 1367b STOPS claims by P against parties joined by Rule 20 to destroy Diversity
i. Cannot use this to get around complete diversity
ii. Applies equality to additional Ps and Ds, but it has not been decided in dicta that the
second P cannot be the same citizenship as D??????
b. Thus, if destroys Complete diversity, then NO supplemental jurisdiction.
MANDATORY JOINDER OF PARTIES(NECESSARY v. INDISPENSABLE) RULE 19
1. These are both Proper parties (both the terms are conclusions)
a. Necessary (must join since necessary, but not if infeasible)
i. DefSo interested that the court should join them, but it is very difficult to do, the case
can proceed. (The case will only may affect the person’s rights)
b. Indispensable (must dismiss if cannot join)
i. DefCourt cannot proceed without them because a decision will have a binding effect
on their rights.
2. Usually applies is cases of Pots of Money
CivProIIOutline--Schwemm
3.
4.
5.
6.
7.
6
Kelley Williams
Party SHALL be joined if: (If one of the three found, then “NECESSARY”)
a. 19(a)(1) in the person’s absence complete relief cannot be accorded among those already
parties, OR (rare)
b. 19(a)(2) the person claims an interest relating to the subject of the action in the person’s
absence may:
i. (i) as a Practical matter impair or impede the person’s ability to protect that interest
OR
ii. (ii) leave any of the persons already parties subject to a substantial risk of incurring
double/multiple, or otherwise inconsistent obligations by reason of the claimed
interest.
How to Decide
a. Process
i. Think about what might Happen (P wins)
ii. Other person not made party will later sue original D for Amount
iii. D cannot claim Res Judicata because new P were not a party.
iv. Thus, New P could not recover, (or D has to pay twice or pay out of own pocket)
b. Particulars
i. #1 is very Rare and focus on if the original can fully recover
ii. “Practical matter” occurs often
1. When the bank or person could run out of money, OR
2. The first P could blow all of the money.
iii. Risk of Double Cannot occur when there is a set amount such as an insurance policy.
What if the Joinder of person that satisfies 19a is not Feasible (This is 19b)
a. Can be not feasible by not being able to get P.J., not available, destroying Complete diversity, etc.
b. Court must Decided to Proceed or Dismiss the Case.
c. Factors of “Equity and Good Conscience”
i. Extent a judgment rendered might be prejudicial to the person or existing parties,
ii. Extent to which the prejudice can be avoided by shaping the judgment
iii. Whether judgment will be adequate, AND
iv. Whether P will have an adequate remedy if case is dismissed for nonjoinder.
Thus, a person how satisfies 19a, and then must be dismissed by 19b is deemed indispensable.
Issue of SMJ
a. § 1367 bars claims that destroy complete diversity under Rule 19
i. Includes
1. P cannot make a claim against a party joined by 19 AND
2. Proposed P by rule 19 cannot make a claim that destroys it.
b. Thus, if destroys complete diversity then NO supplemental jurisdiction.
OTHER
INTERPLEADER
1. Intro
a. This is like Joinder, but it is the person with the money (Stakeholder) filing the action against the
people wanting the money (Claimants)
b. Intended to Protect a party subject to multiple/inconsistent claims to money and let them
decide the issue in one suit.
c. Drives Claimants crazy because:
i. It slows everything down
ii. Stakeholder chooses the forum, not the claimants.
d. KEY PROBLEM A court must be about to get P.J. over every party to make Interpleader
successful
2. Statutory Interpleader
a. From the Federal Interpleader Act (§ 1335, 1397, and 2361)
i. They all make it easier to get Interpleader in the Federal Courts
b. § 1335  SMJ Provision
i. District Cts have original jurisdiction if action of interpleader or in the nature of
interpleader (when stakeholder is claiming he doesn’t have to pay) if:
CivProIIOutline--Schwemm
7
Kelley Williams
1.
2.
3.
4.
5.
More than $500 AND
Two or more adverse claimants of diverse citizenships are claiming it AND
a. Only requires Minimal Diversity, not complete
3. Stakeholder deposits thing/money with court
ii. Do not have to have common origin of the claimant’s claims
iii. KEY Stakeholder’s citizenship is Irrelevant, only look at claimants.
c. § 1397  Venue Provision
i. Can be brought in any judicial district where one or more claimants resides
d. § 2361  Service Provision
i. May Stop other claimants from starting a suit, or continuing, in any other court
ii. Allows nation-wide service and process by US Marshall
1. Satisfies due process since you have minimum contacts with US.
e. Important Points
i. Only requires minimal diversity between claimants
1. Because Complete diversity is only required for 1332 by Strawbridge.
Rule Interpleader  Rule 22
a. Does not limit Statutory Interpleader
b. Rule
i. Allows if P is subject to Multiple Liability
1. Allows if you don’t even think you owe (nature of interpleader)
2. Doesn’t have to be of common origin.
ii. A D subject to multiple liability can obtain interpleader by cross-claim or counterclaim
also
c. As for SMJ issue
i. You must analysis under § 1332 – Diversity and Amount
1. Thus must be complete diversity
2. Over $75K
SUM of Two
a. No diversity in claimants No statutory, but you still can get Rule interpleader if $75K and
stakeholder is different state
b. If there is minimal diversity between claimants Statutory Interpleader
c. If you have complete diversity and diversity between claimants, then yes under both if over $75K
d. If all from one state No to both, but you can bring it in State Court.
e. THUS YOU HAVE ALL OPTIONS COVERED (if over $75K)
Additional Points
a. You can even take a claim under Rule 18 after Interpleader because it is a claim for relief.
b. Courts should only enjoin all other claims when the fund itself makes the outer limits of the
controversy (thus Interpleader does not require that everything be decided in one suit)
i. If it is so small compared to the rest, then it should not enjoin and just make then come to
the court when they decided who deserves it.
ii. Example mass tort should be decided based on only a $20K insurance policy
c. Can include unliquidated claims (claims that don’t know the exact amounts yet because the
language say (may be subject)).
d. Neither requires a disinterested stakeholder
INTERVENTION RULE 24
1. Intro Stuff
a. Someone that is not a party is wanting to be in the suit.
i. By becoming a party, person has a stronger status, such as right to appeal
2. Procedure (24c)
a. Party must make a Motion to Intervene containing:
i. Grounds for intervention (satisfying 24a or 24b) AND
ii. Your pleading asserting your claim or defense.
3. Intervention by Right (24a)
a. Shall Rule No judicial discretion.
b. Timely Application (not defined)
CivProIIOutline--Schwemm
8
c.
4.
5.
Kelley Williams
One of the Following Two
i. Statute confers unconditional right to intervene OR
ii. Second part has Three requirements
1. Applicant claims interest in the subject of action,
a. Doesn’t require an economic interest
b. Some courts have held potential precedental effect to be enough of an
interest.
2. It will Practical Harm applicant by impairing/impeding applicant’s ability to
protect that interest AND
a. Consider all the possible results and find one that hurts
3. Applicant is currently Inadequately Represented.
a. Comes up in Private and Government cases
b. Seems more likely Gov’t less adequate since represents so many
interests.
c. Burden is on the wanting to intervene party
d. Factors to Consider
i. Bad faith/bribe
ii. Less to lose than outside party
iii. Few(er) resources
iv. Other priorities
e. Can argue that:
i. No one represents me.
ii. Yes in theory, but has to represent all thus wrong.
iii. Yes in fact, but I have a bigger stake and current lacks
resources
d. Example Favorite Nephew Case
Permissive Intervention (24b)
a. MAY rule discretion on Judge
b. Timely Application (not defined)
c. One of Two Ways
i. Statute gives a conditional right to intervene OR
ii. Applicant’s claim or defense and the main action have a question of law/fact in
common (only need one overlap)
1. This is easily satisfied, BUT Judge still has discretion
d. Judge should consider in discretion:
i. Unduly delay and/or
ii. Prejudice to an existing party
e. Example Smoker Case.
Issue of SMJ
a. § 1367 applies to Rule 24 (two ways)
b. Applies Two Ways
i. P cannot claim against a party intervening by 24 that destroys complete diversity
ii. A proposed intervening P cannot destroy complete diversity
c. If so, then there is NO supplemental Jurisdiction.
CLASS ACTIONS
PROCESS FOR CLASS ACTION
1. What rule gives you power? Rule 23
2. Is there SMJ? (only in federal courts)
3. Is Due Process/Constitutional issue OK? (in all courts)
BY THE RULE  Rule 23
1. Background
a. Class actions matter because it Binds everyone in the class.
CivProIIOutline--Schwemm
b.
c.
2.
3.
4.
5.
9
Kelley Williams
Can be class action Ps or Ds
Matters because it changes a small claim into a huge one
i. Thus getting class certified hurts D and forces a settlement because cannot borrow money
when suit is over your head.
Overview
a. Requirements for class Action,
i. All 4 requirements of 23a AND
ii. 1 of 23b.
iii. Class be certified (23c)
23(a) Prerequisites for a Class action (Need all four)
a. Class so numerous that joinder of all members is impracticable
i. Usually around 40 is cut off and geography matter too.
b. Common questions of law or fact to the class,
i. Seems to require more than one
c. Claim/defense of the representative is “Typical” of the class, AND
i. Same Problem (just examples)
1. Such as discriminated against in hiring, not enough to be in promotion- those
different and not typical
ii. Same relief
1. Person seeking injunction not typical of person wanting damages.
d. Representative party fairly and adequately protects the interests of class.
i. May not be adequate if: (play on with typical)
1. Rep has different view/stake than rest
2. Might lack resources
3. Might like ability in counsel.
ii.
23(b) Class Actions Maintainable If: (need one of four/three)
a. 23(b)(1)(A) separate actions creates risk of inconsistent decisions that would cause an
incompatible standard of conduct of the party opposing the class
i. Creates unfair risk or party opposing class
b. 23(b)(1)(B) separate actions creates risk of as a practical matter impairing the class
members from protecting their interests.
i. Creates unfair risk for class members.
c. 23(b)(2) When party opposing class has acted generally the same to the whole class and the
class thus wants Injunction/Declaratory Judgment
i. Must be for injunction relief, not damages.
ii. You can allow a hybrid class action here for injunctive relief and damages, but only if
injunctive relief predominates
1. If not, you must pursue 23(b)(3)
iii. Ex Civil Right Actions
d. 23(b)(3)Two Requirements
i. Common questions of law or fact predominates over the individual questions AND
ii. Class action is superior to other methods over other ways to adjudicate this matter, such
as one at a time or by model suit.
1. Factors for this:
a. Interest of members to individual control suit,
b. Extent and nature suits have already begun
c. Desirability/Undesirability to have suit in the particular forum, AND
d. Difficulties in managing the class action.
2. Most common
23(c) Certifying the Class
a. Court certifies class as early as practicable.
b. Court must define the class and its claims/issues/defenses, and appoint class counsel.
c. Issue of Notice
i. Notice NOT required for 23(b)(1&2), but it MAY be directed by the court stating the
appropriate way.
CivProIIOutline--Schwemm
6.
7.
10
Kelley Williams
ii. Notice is REQUIRED for 23(b)(3) and it must be the best practical under the
circumstances (includes individual notice to all class members identified through
reasonable effort
1. Plus P class must pay the bill to send all the notice to Members
2. Thus, P class want to avoid 23(b)(3) due to the large expense
iii. Notice Requires it provide in clear language
1. Nature of action,
2. Definition of certified class,
3. Class claims/issues/defenses
4. Tell member it may enter an appearance through counsel if so desires,
5. Give member a chance to opt-out (exclude self) and procedure to do it, AND
(KEY ONE)
6. Explain the binding effect of the class judgment on them.
d. Eventual judgment must define class that it controls and list who opted-out
e. Can have subclasses
23(e) Settlement Issue
a. Court must approve the Settlement/Voluntary dismissal/Compromise
b. Before Doing it Judge must:
i. Send another round of reasonable notice to class member effected by it AND
ii. Hold a hearing to determine settlement is fair, reasonable, and adequate.
c. Class members can come in and object, but judge doesn’t have to listen.
d. Judge can require that class members have another opt-out chance.
Other Issues
a. 23(g) Attorney for Class
i. Court required to inspect the class representative counsel and make sure he is adequate
the right man for the class
b. 23(f)  Class Definition being appealed
i. Court of appeals may take appeal at its DISCRETION as long as within 10 days of class
being defined, otherwise must wait until final judgment
SMJ ISSUE
1. Look for Federal Question first (1331)
2. If using Diversity And Amount (1332)
a. For Diversity
i. Determine citizenship of class based on the named party only
b. For Amount
i. No aggregation, so each person needs a claim over $75K, (however see 1367 below,
because if you have one person over $75K, then rest can tag on)
3. If using Supplemental Jurisdiction (1367)
a. One person with claim over $75K gets you past 1367a
b. Rule 23 is not blocked by 1367b, thus can destroy amount
c. Thus, you can have S.J. as long as one person is over $75K
DUE PROCESS REQUIREMENT
1. Generally Rule to StartDue Process/Constitutional Requirement only requires adequate representation
according to Supreme Court. (Hansberry v. Lee)
a. It only Requires Adequate representation for 23(b)(1&2) (BUT SEE BELOW)
b. It requires Adequate Representation, Notice and Opt-Out chance for 23(b)(3)
i. Adequate representation requires looking at start and throughout the lawsuit to make sure
adequate
2. Due Process Requires Three Things if main relief sought is damages (23(b)(3))
a. Adequate Representation
b. Notice (and Opportunity to Participate),AND
c. Opt Out Opportunity
3. Key MINIMUM CONTACTS NOT REQUIRED, neither is opt in provision
4. However, it is uncertain if Notice and Opt Out Opportunity is required in 23(b)(1&2)
CivProIIOutline--Schwemm
a.
b.
11
Kelley Williams
Some courts have required, but Supreme court has not yet.
Thus, answer this as “I don’t know, but then say likely just adequate representation, but it could
easily require notice and opt-out”
WAYS TO ATTACK (to avoid res judicata)
1. Claim you were not adequately represented.
a. Have different interest
b. Representative was not typical
2. Notice Problem
a. Notice wasn’t proper
3. Opt-Out Problem
a. Either I opted out, or it violates due process since not given the option.
4. Long shots
a. Should have joined all (practicable)
b. No Common question
DISCOVERY
OVERVIEW RULE 26
1. Two Types of Discovery
a. Mandatory Must do without request
b. Optional  Can request information on own
2. Two ways to contend Discovery
a. Outside Scope of Discovery
b. You didn’t follow the rule
3. Discovery is supposed to operate with the court, but becomes involved when problem
4. Meant to narrow issues so that we don’t waste time and resources.
5. REMEMBER Rule 26 applies to all
MANDATORY DISCLOSURES  RULE 26(a)
1. Done without request.
2. Three Parts
3. Initial Disclosure
a. Information
i. Name and address and contact info for each person that would likely have discoverable
information that will be used to support your defense/claim
1. Notedon’t have to give names of other people you won’t use
ii. Copy/location of documents/other tangible things that you have that you will use to
support your claim/defense
iii. Directed to P Computation of damages including records of it.
iv. Directed to D Copy of insurance agreement for D so both parties have the practical
effect of lawsuit.
b. Timing it is early
i. 14 days after 26f conference unless court says otherwise
ii. If joined later, you get 30 days
c. Key You do not have to disclose what you do not intend to use.
4. Disclosure of Expert Testimony
a. Requires you give a list and reports (opinions, support, etc) of Expert Testimony that may be used
i. More requirements so see rule
b. At least 90 days before trial
5. Pretrial Disclosure
a. Information
i. Name, address and telephone number of each witness
ii. Designation of testimony that will be given not in person
iii. Document that will be admitted at trial
b. Timing at least 30 days before trial
CivProIIOutline--Schwemm
6.
12
Kelley Williams
Optional discovery (Rule 26(a)(5)) includes: (on request only)
a. Depositions (oral or written)
b. Interrogatories
c. Demands for documents
d. Medical Examinations
e. Admissions
i. Can only do these after 26f meeting
SCOPE OF DISCOVERY RULE 26(b)
1. General Rule RELEVANT AND NOT PRIVILEGED
2. Issue of Relevance
a. Just has to be relevant to the claim/defense of any party
b. Need not be admissible at trial, as long as it is reasonably calculated to lead to admissible
evidence
i. Note Admissible means relevant and no rule against it.
3. Issue of Privileged
a. Refers to Special Relationships that cannot be inquired into (not trademarks)
i. Priest/Confession; Husband/Wife; Lawyer/Client; Doctor/Patient
b. Not privileged if told to others, must be only between the two.
c. See Special Scope below
4. Limitations (any of these can work)
a. Party could have obtained the information himself in some more convenient, less burdensome, or
less expensive way
b. Party has already had ample opportunity to discover the information sought, AND
c. The burden or expense of the proposed discovery outweighs its likely benefit.
DEPOSITIONS RULE 30 (Mainly)
1. ONLY method that can be directed against Parties AND Non-Parties
a. Rest can only be towards parties
2. Background
a. Can be Oral (Rule 30) or Written (Rule 31) (but rules basically the same)
i. Best thing about Oral is you get to feel the person out.
b. Get some type of physical product out of it (transcript, video tape, etc)
i. Party taking deposition has choice of way recorded.
c. It is under oath so can be used at trial to make person look bad if changed. (rule 32)
d. Limited to one seven hour day of deposition (30d2)
e. Four people present at Oral deposition
i. Lawyers on both sides
ii. Official to administer oath and keep record
iii. Deponent
f. General Desire for Deposition
i. You do not want depositions of your own client or witnesses because you can get it other
ways, BUT
1. Exception person will not be around for trial (dying, etc.)
ii. Opposing side wants it now because they want to know what you plan to say and cannot
hurt them more by getting it now.
1. Can keep asking question until person says there is nothing else and thus defines
the boundaries of the case.
3. When Deposition can be taken (30a and 31a)
a. Can do it at anytime without leave of court, unless the following in which you need leave of court:
i. You have already taken 10 depositions
ii. Person has already been deposed
iii. Certain amount of time must have already gone by (26d)
4. How Deposition can be Taken (30b and 31a3)
a. Must give Reasonable notice to all other parties of the action that you will depose that person
b. Notice must include
CivProIIOutline--Schwemm
5.
6.
7.
13
Kelley Williams
i. Time,
ii. Place,
iii. Name and address of each person deposed
Issue with Subpoena (rule 45)
a. You do not have to subpoena a witness to appear, but best to do so.
i. You have no power over witness unless you get a subpoena because they are not subject
to any sanctions otherwise.
b. You can subpoena a person anywhere, but they can object
i. Rule states that subpoena is good if within 100 miles of person sought.
c. If you do not subpoena and Deponent doesn’t show Rule 30(g)(2)
i. The party arranging the deposition may be ordered by the court to pay the expenses of the
other parties showing up.
d. If you Subpoena a witness, and he doesn’t cooperate after showing or doesn’t show:
i. Arranging Party Doesn’t have to pay expenses,
ii. You must first get a court order (Rule 37(a)) and it must be from the court where the
discovery is being taken.
iii. After the court order Rule 37(b)(1) says the failure holds the person in Contempt of
Court (prison)
1. Thus You must get court order first before Contempt for a non-party, even
if doesn’t show.
Can an Attorney protect a Deponent during Deposition? Rule 30(d)
a. Attorney can Object (must be stated concisely) to preserve right to get it thrown out, but should
still answer.
i. This is what normally occurs
b. Can only instruct not to answer in order to:
i. Necessary to protect a privilege,
ii. Following instruction of the court, OR
iii. To make a motion that Deposition is just to harass, embarrass, annoy, or in bad faith
c. Protective Order (Rule 26(c))
i. Can only be given by the court in which the deposition sits/being taken.
ii. Order can limit or bar discovery into certain information or by certain ways, etc.
1. If denied, then discovery must be permitted as wanted
iii. This applies to Depositions and all other discovery also.
Special Rule for Corporations (Rule 30(b)(6))
a. To depose a Corp, you just give notice and subpoena naming the Corp. and describe with
“reasonable particularity the matter on which examination is requested,”
i. Then, Corp. must supply the right person to answer.
ii. Deposing party doesn’t get to pick person, but could always depose a person in particular
later.
SUBPOENA  RULE 45 (this is a side issue)
1. You must get subpoena from the judge in the system you will be taking the deposition (rule 45(a)(2))
(or if for trial, then where trial at)
2. Subpoena commands the person to show AND also to produce documents/tangibles (Rule 45(a)(1)(C))
3. A non-party (normally a witness) can QUASH a subpoena if he is asked to go more than 100 miles form
his home (Rule 45(c)(3)(A))
4. Can be served by anyone that is a non-party and over 18.
WRITTEN INTERROGATORIES RULE 33
1. Basics
a. Done by Service on the other party
b. Often grouped with Document request because ask question and then ask to supply the documents
proving it.
2. Can ask up to 25 Written interrogatories without leave of court
a. This means distinction subjects
3. Answers
CivProIIOutline--Schwemm
4.
5.
6.
7.
8.
14
Kelley Williams
a. Each interrogatory must be answered separately under oath.
b. If objected to, should state specifically why objecting and answer to extent not objectionable
c. Party must sign (attorney if object)
d. Must answer/object in 30 days
Option to produce business records is allowed if the burden of finding the answer is the same on both
parties and the answer is in the business records
a. Must be specific enough to find, as the answering party
33(c) Contention Interrogatory entitles you to know what the other party contends.
Downside there is no sudden answers, thus usually done by attorney.
Use at trial You can use it, but the party can still deny it because they are not binding
Additional you have power in interrogatories to make the other party do a lot of work/expensive.
DOCUMENTS/TANGIBLE REQUEST RULE 34
1. Background
a. Done by Service on the other party
b. Done with interrogatories a lot
2. Can request Documents/Tangible things, or go on land
a. You must describe them with reasonable particularity
b. SCOPEMust be relevant, but not privileged AND “in possession, custody, or control” of
the party
i. Broadly construed
3. Must answer within 30 days.
4. Upside you can get everything in other party’s control
REQUESTS FOR ADMISSIONS RULE 36
1. Relates to the truth of any matters relevant, and not privileged
a. Includes statement or opinion of fact, the application of law to fact, and the genuineness of a
document.
2. Can be done (only) on other parties on service on them
3. Get 30 days to answer
4. Four options
a. Admit
b. Say nothing THUS ADMIT
c. Deny
d. Object
i. Cannot claim lack of information/knowledge unless you have you have made a
reasonable inquiry
5. Effect of Admission
a. Admitted matters are “conclusively established”
i. Thus Admit party cannot say otherwise at trial
ii. This is better than an answer to interrogatory
6. Effect of Deny
a. If you fail admit, then you have to prove the issue at trial
b. But if the other party proves the issue, Rule 37(c)(2) applies
i. Proving party can move for other party to pay the reasonable expenses of proving the
issue.
ii. Court should grant the order unless the party had reasonable grounds that it might prevail
on the matter at trial (one v. one witness is reasonable)
PHYSICAL/MENTAL EXAMINATIONSRULE 35
1. Only Allowed on Court order, after a motion
2. Requirements
a. Must be a party
i. Applies to Ps and Ds
b. Condition must be “in controversy”
i. Means it must be important to what happened/relevant
CivProIIOutline--Schwemm
15
Kelley Williams
ii. ExP suing for injuries and D using a mental illness defense
Motion must be made in Good cause
i. This is the only discovery rule that requires good cause.
ii. Usually requires showing you can get it no other way and disadvantaged since other party
knows more than me.
iii. Thus, appears there must be some evidence first.
d. Must give notice to all parties also (lesser deal)
The examiner only reports to the requesting party.
a. The examined party can request a copy of exam report (Rule 35b). But if you get it, then you
have to give reports you have to them too.
Rule 37 does not allow you to be put in contempt of court for not following the order to exam.
c.
3.
4.
SUPPLEMENTING/CORRECTINGRULE 26(e)
1. Party under a duty to supplement:
a. If ordered by the court,
b. Mandatory disclosures
c. Duty to seasonably amend prior responses to
i. Interrogatories,
ii. Requests for production, OR
iii. Requests for admissions
2. Both require that they be in some MATERIAL RESPECT Incomplete/Incorrect and it has not
otherwise been made know to the other party.
USE OF DISCOVERY AT TRIAL  RULE 32(a)
1. Use of Depositions (32(a))
a. Contradicting/impeaching a testimony of a deponent
b. Deposition can be used for any purpose by adverse party (broader than a)
c. Deposition of a witness may be used for any purpose if the court finds:
i. witness is dead,
ii. person is 100 miles or more from location of trial or out of country,
iii. Witness unable to attend because of age/illness/infirmity, or imprisonment,
iv. Cannot get a person subpoenaed to show up, OR
v. Approved exceptional circumstances.
d. If you use part of a deposition, the other party can introduce rest if wanted.
i. Basically our courts prefer to have live testimony, and will only allow deposition in its
place when it is impossible.
2. Use of Interrogatories
a. Can be used for any purpose by an adverse party, but it is not binding
3. Use of Admissions
a. They are conclusively established
4. Use of Examinations
a. Almost always allowed.
SPECIAL ISSUES WITH SCOPE OF DISCOVERY
1. Privileged Communications
a. Essential elements of a privilege. (attorney/client)
i. The asserted holder of the privilege is or sought to be a client;
ii. The person to whom the communication was made
1. is a member of the bar of a court, or his subordinate and
2. in connection with this communication is acting as a lawyer;
iii. the communication relates to a fact of which the attorney was informed
1. by his client
2. without the presence of strangers
3. for the purpose of securing primarily either
a. an opinion on law or
b. legal services or
CivProIIOutline--Schwemm
2.
3.
16
Kelley Williams
c. assistance in some legal proceeding, and not
4. for the purpose of committing a crime or tort; AND
iv. the privilege has been
1. claimed and
2. not waived by the client.
b. Notes on Privileges
i. Runs down to all employees of a Co., not just upper management. (but might be different
in state court applying the Control Group test)
ii. Note Privileges are completely immune, but work product is discoverable on
substantial need
Materials Prepared in Anticipation of Trial (Work Product Immunity) 26(b)(3)
a. Rule 26(b)(3) (only applies to Documents/Tangible things)
i. Can only discover Work product on Showing
1. Substantial Need AND
2. Unable Without Undue Hardship to obtain the Substantial Equivalent
a. Examples Witness is dead, party has disappeared, deposition was so
long ago, party is now uncertain.
ii. Still the court Protects against disclosure of “mental impressions, conclusions,
opinions, or legal theories” of attorney or other representative.
1. Means self notes must be whited-out.
iii. Exception a party or non-party can always recover a copy of his previous statement
with no further notes on it.
b. Notes
i. Inquiring side has the burden of proving all of this.
ii. It is even tougher (maybe impossible) to get oral statements
iii. Applies to Attorney and any representative of the party
iv. Once an attorney’s work product is supplied to an expert witness, it is no longer
privileged and is now discoverable.
Expert Information Rule 26(b)(4) (Trial Preparation: Experts)
a. Experts are special witness because they can give conclusions or opinions.
b. Three Categories of Experts
i. Other side’s retained expert
1. Expert can be disposed anytime after the mandatory disclosure report is filed.
ii. Other side’s hired doctored, but doesn’t plan to testify (but could be used at trial)
1. Can only get under exceptional Circumstances or Rule 35(b)
a. Probably couldn’t even hire him yourself because he probably signed
an agreement not to.
iii. The Original Treating Physician
1. Appears you can get under 26(b)(4)(A) since it doesn’t say retained.
c. Thus, the rule allows you to depose of any experts except the ones hired by the other side but not
going to be used, which encourages you to get your own experts
SANCTIONS  RULE 37 (mainly)
1. Generally (overview)
a. Rule 26(g)
b. Rule 37(c)
c. Rule 37(b)(2)
d. Rule 37(a)
2. General Process (two options, both Two Steps)
a. First If party fails to Show
i. 1st Go to Rule 37(d) for failure to Show (had been served notice)
ii. 2nd It directs you to use the Sanctions from Rule 37(b)(A, B, and C)
b. Second If Party shows, but doesn’t cooperate
i. 1st Must seek a court order to compel discovery Rule 37(a)
1. For a party the order must be from where the action is pending.
ii. 2nd Then when refuses after the Court Order Sanctions under 37(b) are applicable
CivProIIOutline--Schwemm
17
Kelley Williams
c.
3.
4.
5.
6.
7.
8.
9.
The special sanctions for a Non-party
i. Must get a court order by Rule 37(a)(1) which is you must get a court order form the
court system where discovery is being taken.
ii. THEN Use 37(b)(1) if he refuses the court order and thus Contempt of Court.
Rule 26(g) Signing of Disclosures
a. Every discovery material must be signed by Attorney or Party
b. Signature signifies that party has made a reasonable inquiry and the disclosure is complete to
his knowledge.
c. Same idea of discovery request AND
i. It is in accordance with law,
ii. Not for improper purpose, AND
iii. Not unreasonably burdensome/expensive.
d. If wrong without substantial justification, then court can order appropriate sanctions (including
paying the reasonable expenses caused by problem)
Rule 37(c) Failures to Disclose
a. Applies to mandatory disclosure and supplementing
b. If done without substantial justification, then you cannot use the evidence/witness.
c. PLUScourt MAY order to pay reasonable expenses of other side
i. And maybe any other sanction
Rule 37(b)(2) Main Sanction Rule
a. If you fail to obey a court order with respect to discovery, the court where the action is pending
can make the following orders:
i. A Establish (Make/Declare certain facts established)
ii. B Preclude a defense/claim
iii. CTotal (Dismiss or default judgment against them.)
iv. D Contempt of Court
v. To All additional or in lieu of all, court SHALL order to pay reasonable expenses,
unless substantially justified
b. Case held that to Establish, Preclude or Total, the bad action must be willful (includes gross
negligence, but not regular negligence.
Rule 37a  Motion For Order Compelling Discovery/Disclosure
a. KEY Rule 37(a) is the rule to get a court order compelling discovery
b. Which ever party fails on a Rule 37 motion, then there are sanctions for expenses because you
have gotten the court involved when it shouldn’t have.
i. If motion granted, other party pays expenses
ii. If motion denied, then moving party pays expenses
1. However, both not true if court finds substantially justified.
Rule 37(d) Failure to Show/Answer
a. Court MAY impose sanctions to establish, preclude or total. AND
b. In lieu or additional, court SHALL order payment of reasonable expenses unless substantially
justified.
Notes
a. A partial disclosure is the same as a failure to respond.
Sum
a. Remember harsh sanctions only after failure of order or never showing up,
b. Financial sanctions of reasonable expenses seem to apply about everytime.
SUMMARY JUDGMENT
SUMMARY JUDGMENTRULE 56
1. Both parties can Move for Summary judgment
a. P must wait 20 days from start of action
b. D can at any time.
i. It is usually after discovery though, since find all out.
2. Decided off of pleadings and discovery materials (often affidavits, but not required)
a. Requirements in Affidavits
CivProIIOutline--Schwemm
18
Kelley Williams
i. show he has a personal knowledge
ii. set forth facts as would be admissible for evidence
iii. and that party is competent
3.
4.
5.
6.
7.
8.
9.
Standard
a. There is no genuine issue as to any material fact and the moving party is entitled to a
judgment as a matter of law.
i. Means reasonable jury could go either way
ii. Thus, the evidence is strong for one side and weak for the other, but not 100% certain
1. Clearly summary judgment if all 100 witnesses say one way
2. Clearly not summary judgment if witnesses are split 50/50
Can be partial (meaning summary judgment on liability and have trial for damages).
How do you oppose Summary Judgment?
a. Best Direct conflicting evidence/testimony (through affidavits)
b. Second Challenge Weight of Movant’s Evidence (not overwhelming/is wrong)
i. Affiant is bias
ii. Affiant not competent
iii. It is contradictory to itself
iv. Doesn’t seem right
Cases are treated differently if it is P or D moving for Summary Judgment
a. The key is the burden at Trial
i. D (party without burden) can move for/or defeat summary judgment solely because the
other party has not carried its burden for trial
1. Thus, you don’t have to have evidence to defeat Summary Judgment always
Once movant has proven no genuine issue, then the burden shifts to the other side to prove there is so
genuine issue.
Must be looked at in a light most favorable to non-moving party
Side Notes
a. Non-moving party can be ordered a continuance if need time to get affidavits in opposing
b. Judge makes order of established facts and which are in controversy
NoteOrder of Persuasiveness of Person’s statement
 Sworn Trial Testimony
 Deposition (good, but not live)
 Affidavit (sworn, but not as good since other side not present)
 Written Statement (unsworn)
TRIAL
TRIAL BY JURY
1. Intro
a. In civil cases, you only get a jury trial in certain circumstances.
i. Judge decides law, and jury decides facts
b. Having a jury adds a lot of time and cost to trial
c. We have Trial by Juries since required by Constitution
d. Remember No constitutional right to a judge trial, if arguing from other viewpoint
2. Process to Determine if Trial by Jury
a. Is there a Right to a Trial by jury
i. First See if the Law/Statute gives a statutory right to Jury (Yes by Statutory right)
ii. Second If statute is Silent or says No, Then must Look at the Seventh Amendment for
Constitutional Right
1. If action is new cause of action consider: (get to heart of claim)
a. What relief is being sought?
b. How does the statute state to enforce the claims?
CivProIIOutline--Schwemm
19
c.
3.
4.
Kelley Williams
Is there some analogous Cause of action in 1791? (this is the weakest
reason)
b. Order of Trial (Beacon Issue)
i. If there is a jury right for a part of trial, make sure the jury part goes first (or
simultaneously) because it requires a clean slate.
c. Is the Right Timely Demanded – Rule 38/39
i. You have 10 days after the last pleading directed to such issue.
1. Must look at each claim separately.
Is there a Right
a. Seventh Amendment of the Constitution
i. Requires preserving the jury right at common law for claims over $20
ii. Key word Right to jury trial is PRESERVED
1. Thus, you have the right to a jury trial as allowed in 1791
a. Thus, if no then then no now
b. Must have been brought in Common Law court, not equity back then
iii. Thus, Judge is deciding “how would this case have been handled in 1791)
b. Constitutional Right is based on the Nature of the Case.
c. Problem is with actions that were not brought back then? (Three Approaches)
i. If a Common Law action in 1791, do what they did then. (weakest)
ii. What relief is being sought?
1. Damages is the key for jury trial, not just restitution because that can be more
equitable
iii. How does the statute state to enforce the claims?
1. If there is a special board/commission/tribunal than no jury right
a. If no special tribunal, then favors jury right maybe
b. The 7th Amendment is no bar to the creation of new rights or to their
enforcement outside the regular courts of law.
c.
iv. KEY No definite answer yet as to if a claim for damages in a special tribunal gives
you a right to jury trial or not.
Demanding the Right Properly (Rule 38 and 39)
a. KEY You must look at EACH CLAIM SEPARATELY
b. Rule 38b How do you Demand
i. Can be by any party
ii. Must serve the other party and file the demand with court.
iii. Must be within 10 days of the last pleading “directed to such issue”
1. 38(d) Failure to file by these rules is deemed a waiver of right to jury trial
2. Exception Rule 39(b) which allows the judge to order a jury trial upon
motion after 10 days on his discretion. (but rare)
c. Other Points
i. 38(c) Specify the issues demanded or assumes all (and if not all issues, other parties
have 10 days from that service to demand rest)
ii. 39(a) after granting trial should be by jury unless
1. Parties agree not to in writing, OR
2. Court decides not right to jury trial by Constitution or Statute (on own or by
motion)
iii. 39(c) For actions not triable by jury, the court can on its own or by motion,
1. Try any issue with an advisory jury, OR
2. With consent of both parties, order a trial by jury (except when US Gov’t is a
party and statute says trial is without jury)
d. How to Complicate?
i. Issue after AmendmentSeems 38b would give you another 10 days since there is a
new answer assuming the jury trial issue was added in the amendment
1. If the issue already existed and not added, seems to be no.
2. Except—One case says no to an amending P demanding this due to waiver
(schwemm doesn’t agree)
CivProIIOutline--Schwemm
5.
6.
7.
8.
20
Kelley Williams
ii. Issue with Motion Still get 10 days after the answer that comes after the motion if it
contains the jury issue.
1. If motion is only given for injunction, and answer original was for damages, a
later answer about the injunction is not a new ten days.
iii. If there are multiple Jury Issues Motion for jury trial must be timely for each
(separately if needed).
e. KEY—LAST PLEADING DIRECTED TO SUCH ISSUE
i. The New Addition (amendment/motion) must be the jury issue
Special Cases
a. Case of an Action for Damages and Injunction (hybrid) (Beacon Issue)
i. Judge cannot decide non-jury issue first, you must decide after or simultaneously
1. Right for to a jury trial requires a Clean slate for the Jury
2. It doesn’t matter how important or incidental the jury issue is compared to
the other issue
a. OK to have judge go second because there is no Constitutional Right to
a Judge Trial.
b. Thus, it doesn’t matter if the conflicting claims are by the same party or
between parties, the jury issue must go first.
ii. Equitable parts cannot go first only in the instances where the decision of the
equitable part will determine facts that would have been decided in the jury trial.
1. Thus, if it is two unrelated claims, the equitable part can go first because there is
no overlap in Fact Findings
b. Case of an Action based on something not existing in 1791
i. Steps
1. Is it a new technique
2. What is the Heart of the Claim (in terms of remedy)
a. Heart of the claim can be both damages and equity (so see Beacon
Issue)
If there is a statutory right to a jury trial, then even an injunction claim must have a jury
HYPO PROCESS
a. P sues D under US Firearms Act
i. Says no Jury
b. Go to the 7th Amendment
i. If for injunction clearly NO jury
ii. If for Money/Damages (the type that comes in 1791)
1. Starts to Say yes
iii. Definitely a yes if it says to take it to regular courts
iv. BIG PROBLEM, then if Firearms Act says there is a special board then tough issue
Size of Jury
a. Supreme Court has held that you can have a jury of less than 12 people and still preserve you
right to a jury trial
i. It is just the jury, no the size preserved.
ii. Has been held Constitutional as low as 6
b. Rule 48 requires 6 to 12 and must be unanimous (unless agreed otherwise)
JURY MISCONDUCT
1. General Rule Juror may not impeach its own verdict
2. The misconduct must be serious enough (prejudicial) to throw out the verdict (not harmless)
3. How can you prove Misconduct
a. Can always call third parties, but not juror
i. Minority rule allows you to question jurors on objective/extrinsic facts, not their
thoughts. (seems Federal allows now)
4. Examples
a. Going to scene themselves
b. Talking to outsiders
c. Bring in outside information
CivProIIOutline--Schwemm
d.
21
Kelley Williams
A quotient verdict (not talked about after)
INSTRUCTIONS  Rule 51
1. Judge must instruct the jury on the relevant law
2. Parties can file written requests for instructions at close of evidence or earlier at judges request (51(a))
3. Judge must: (51b)
a. inform the parties of what he is to do before giving instructions and before final arguments
i. Can use P’s, D’s, or his own.
b. Give parties opportunity to object on the record, but outside of jury
i. Must state the matter objecting and on what grounds
c. Judge MAY instruct jury anytime after trial begins and before jury is discharged
i. Usually before or after closing arguments
4. Objections (51c)
a. You must object on the record
b. You must object even after submitting your own jury instructions.
c. Must object before instructions given and before final arguments
5. Party may assign as Error if: (51d)
a. If instruction is given and was objected to,
b. Party made a proper request of own instructions and also made an objection.
6. But Court can always consider plain error on own.
7. Notes
a. Judge has duty to instruct on all major points of law, even if not brought up by parties.
b. Federal system allows judge to comment on evidence.
VERDICTS
1. Generally
a. In jury Trial
i. Jury decides Facts and law applied to facts
ii. Judge decides law and gives it clearly in instructions
b. In Judge Trial Rule 52a
i. Judge decides all
ii. Judge must set out clearly each set of findings (facts, then law, etc).
iii. Judge’s finding of fact not changed unless “clearly erroneous”
2. General Verdicts
a. SumNormal Verdict and still the general rule
b. Two Problems with it
i. Cannot tell what issues the jury decided AND
ii. No way to know if jury actually followed the law.
3. Special Verdicts Rule 49(a)
a. Process
i. Jury answers a series of factual questions
ii. Judge applies law to facts
iii. Judge enters judgment accordingly
4. General Verdict with Interrogatories Rule 49(b)
a. ProcessJury is given specific interrogatories and tells the general verdict
b. Possible Scenarios
i. If Answers and General Verdict are harmonious
1. Enter the appropriate judgment
ii. If answers are consistent with themselves, but inconsistent with General Verdict
1. Enter judgment in accordance to interrogatories, notwithstanding the general
verdict,
2. Return the jury for more consideration, OR
3. Order a new trial.
iii. If Answers are inconsistent with themselves, and thus part inconsistent with General
Verdict
1. Judgment CANNOT be Entered
CivProIIOutline--Schwemm
c.
22
Kelley Williams
2. Return the jury for further consideration, OR
3. Order a new trial.
Court should try really hard to make everything harmonious if possible.
ATTACKS ON VERDICTS/JUDGMENTS
1. Generally
a. JAML can be before submitted to the jury (FKA Directed Verdict) or after the verdict (Judgment
notwithstanding the verdict (n.o.v.)).
b. Parties almost always makes these motions because there is no Downside. (except looking dumb if
asking when 50 v. 50 witnesses)
c. Remember Schwemm’s chart measures evidence, not probability of success.
d. Go through a lot of scenarios
i. Remember if Motion granted, but then later reverse, It must be order a new trial since
never complete.
e. Basic Scenario
i. PEvidence
ii. DJAML
iii. CourtGrant/Deny
iv. DEvidence
v. D&PJAML
vi. CourtGrant/Deny
vii. Jury Verdict for P/D
viii. CourtEnter Judgment
ix. DorPRenewed JAML and New Trial Motion
x. Court Grant/Grant; Grant/Deny; Deny/Grant; Deny/Deny
xi. Appeal Aff/Aff; Aff/Rev; Rev/Aff; Rev/Rev
2. Judgment as a Matter of Law Rule 50
a. Requirements (50a)
i. Party must have been fully heard on the issue AND
ii. There is no legally sufficient evidentiary basis for a reasonable jury to find for that
party.
b. Important points
i. Standard is presumable the same as summary judgment
ii. Constitutional because it doesn’t deprive Right to jury of 7th Amendment.
iii. Can be to a particular issue or all (rest such as damages are decided by jury)
1. It is usually harder for P to get a JAML because it has the burden of proving at
trial
c. Renewal Motion of JAML Rule 50b
i. Both parties will move for JAML after close of evidence
1. WHY50b says when judge denies a motion for JAML at close of evidence the
court is considered to have submitted the action to the jury subject to the court’s
later deciding the legal question raised by the motion.
a. Judge does this to save resources so that if he is overturned, they can
use the jury verdict instead of doing all of it over.
ii. Movant then can renew Motion by filing a new motion within 10 days after the entry of
judgment and may join a motion for new trial (rule 59)
iii. Options on Renewed Motion
1. If a verdict returned
a. Let judgment stand,
b. Order new trial, OR
c. Direct entry of JAML
2. If no verdict returned,
a. Order new trial OR
b. Direct entry of JAML
d. Important points
i. Judgment is separate from verdict and the time runs from Judgment, not verdict.
CivProIIOutline--Schwemm
e.
3.
4.
23
Kelley Williams
ii. You must make a motion for JAML after all evidence at the close of all the evidence to
be able to have a motion renewed for JAML after judgment
iii. Losing party will always make a renewed Motion JAML AND a motion for a New
Trial
iv. KEY on appeal of Deny of JAML appellate court can demand a new trial or enter
judgment the other way (this is the rule now), since everything is taken as a reserve.
For JAML, the judge must look at the evidence in light most favorable to non-moving party
(CANNOT consider the credibility of the evidence)
f.
Motion for New Trial Rule 59
a. Requirements
i. Motion must be made within 10 days of judgment (59b)
ii. May be granted on Following Grounds
1. If by jury, for any reason new trials have been granted at law in US
2. If by judge, for any reason rehearings have been granted in equity in US.
3. What does this Means? (it is usually tough since trying to get judge to say
himself is wrong)
a. Error of Law at Trial (evidence, jury instruction, etc)
b. Jury Misconduct
c. Excessive or Insufficient Damages
d. Verdict is against clear weight of the Evidence
e. NOT harmless error
b. Standard for New Trial is “Clear Weight of the Evidence”
i. This is an easier standard than JAML because Judge can consider the credibility of
witnesses/evidence.
ii. But some states use same Standard as JAML (Ky.)
c. Judge can grant new trial on his own initiative as long as within 10 days of judgment (59d)
d. Important Notes
i. Can be on all or part of judgment
ii. Federal court does not let you appeal from a motion granting a new trial because it is not
a final judgment
iii. Also it is hard to overturn a trial judges decision on a motion for a new trial because
Trial Judge uses Discretion, and he is in the best position to weigh evidence/witnesses.
e. What if the Judge thinks the Verdict is too high or too low?
i. Judges he will grant a new trial unless. . .
1. This only applies when P when because that is when there is damages.
2. Judge could grant new trial on part, such as damages (59a), but the court doesn’t
like to split it up.
ii. Remititur
1. DefJudge saying I will grant a new trial unless P accepts a lesser amount (a
reasonable amount)
2. Constitutional with 7th Amendment, because P had the right to decline or
accept and there was something like this in 1791.
iii. Additur
1. DefJudge saying I will grant a new trial unless D gives a higher amount
(reasonable amount)
2. Unconstitutional on 7th Amendment, because nothing like it in 1791 (according
to Supreme Court)
a. Yet, some states say it is Constitutional because 7th Amendment says
US courts and Supreme court has held the 7th Amendment doesn’t
apply to State Courts
iv. What is a Reasonable Amount?
1. It must be in the amount acceptable to jury discretion
2. But, some jurisdictions require the lowest amount that a reasonable jury could
have found.
Interaction between JAML and New Trial Motions Rule 50c or 50d
CivProIIOutline--Schwemm
a.
b.
5.
24
Kelley Williams
Party usually moves both for Renewed JAML (50b) and New Trial (59)
Rule 50c says if Renewed JAML is granted, the court should also Conditionally rule on
motion for new Trial (Conditional Ruling)
i. Just is asking himself to image if he was wrong, then what would the answer be, so he
could think if he is wrong then it is way over towards center.
1. And since standards are different for two test, it is possible.
ii. KEY Conditional Ruling only Matters if JAML decision Reversed
c. If Renewed JAML is Granted USE 50c
i. Options
1. Grant, Conditionally Grant
a. If Affirmed, then first party wins and it stops
b. If Reversed, then conditional granting is relevant and the new trial
should proceed unless App. Ct. has otherwise ordered (thus it is
affirmed, but can decide differently)
2. Grant, Conditionally Deny
a. If Affirmed, then first party wins and it stops
b. If Reversed, then conditional denial relevant and appellee can assign
error to the conditional denial and the case shall proceed in
accordance with the order of the App. Ct., (meaning can follow
conditional denial or not)
d. If Renewed JAML is Denied USE 50d
i. Options
1. Deny, Grant
a. No appeal, because this cannot be appealed yet since not a final
judgment, just a new Trial. (at least in Federal system)
2. Deny, Deny
a. If Affirmed, Affirmed, then Original party (Appellee) wins
b. If Affirmed, Reversed, then New trial (but this is very rare since Ct.
App. is saying both the judge and jury wrong)
c. If Reversed, Then must consider new trial grounds of appellee (Yes,
No, or Remand)
i. If Yes New Trial
ii. If No Appellant Wins
iii. Or Remand Trial judge to decide if New trial or not.
ii. Thus, Appellant’s brief is two parts and Appellee briefs is three parts
e. Remember it is usually pretty rare that the Appellate court will disagree with the Trial
Judge on the New trial issue because Trial judge was in the best position to weigh the
evidence.
f. Note conditional granting doesn’t effect finality for appeal (50c)
Relief from Judgment or Order  Rule 60
a. Our Court system is very Caring of its final judgment, THUS rule 60 is rare
b. This deals with when a court will relieve a party from a final judgment
i. Clerical Mistakes are easy, but rest are hard/rare
c. Clerical Mistakes 60a
i. Court can correct at any time on motion or own initiative
1. If in appellate court, can be corrected on leave of App. Ct.
d. Mistake, Inadvertence, Surprise, Or Excusable Neglect  60(b)(1)
i. Most often from default judgment of not showing up (rarely after a legit judgment)
ii. Will not let you out for a mistake under the rules
iii. Must occur within 1 year of judgment
e. Newly Discovered Evidence that couldn’t have been found by Due diligence in time for New
Trial Motion  60(b)(2)
i. Thus, you must have found new evidence/witness between 10 days after to 1 year after
the judgment
ii. Requirements
1. New info. is Substantial and could change outcome.
CivProIIOutline--Schwemm
25
Kelley Williams
a. Meaning not just one more of 100 witnesses.
Couldn’t have found for trial with due diligence
Assuming no more appeals left.
New Evidence must have been in existence at the time of the Trial.
a. Thus, new medicine cannot be used to protect finality
Fraud, Misrepresentation, or other Misconduct of Adverse Party 60(b)(3)
i. Must be an adverse party
1. Because everyone always claims witnesses are lying.
ii. Must be within one year.
Three other requirements that can even be brought later than one year, but didn’t mention.
2.
3.
4.
f.
g.
THE BINDING EFFECT OF PRIOR DECISIONS
GENERALLY
1. Claim Preclusion = Res Judicata
2. Issue Preclusion = Collateral Estoppel
3. KEY Each state and Federal system has their own res judicata law (meaning binding effect law)
4. Process
a. Always think Res Judicata First,
b. Then move to Collateral Estoppel
CLAIM PRECLUSION/RES JUDICATA
1. Claim is a bundle of rights growing out of the same fact pattern.
2. Requirements of Claim Preclusion/Res Judicata
a. A Final Judgment
b. On the Merits
c. Between Same Parties/privities
d. From Relitigating the SAME claim (includes)
i. What was presented AND
ii. What could have been presented
3. Break Down
a. A Final Judgment
i. Appeals and all
b. On the Merits
i. What is (seems to be read broadly)
1. 12(b)(6) motion (by Supreme Court)
2. Summary Judgment (seems also too)
ii. What is NOT
1. Dismissed for Lack of SMJ
2. Dismissed for improper Venue
c. Same Parties
i. Includes privity such as representative and if were part of class action already
d. Same Claim
i. Requirements
1. Requires the same facts
2. Requires that it was allowed in First Suit Sytem
ii. What is the Same
1. Usually Property and Personal injuries by the same facts/transaction (most
jurisdictions)
2. Can be all payments in installment sale if accelerated
3. Can be multiple theories
4. Both Equitable and Legal Relief must be together.
iii. Decision is part civil procedure and part substantive law
4. Other Stuff
a. Remember, you can be barred by winning and losing.
CivProIIOutline--Schwemm
26
Kelley Williams
b.
5.
Modern Trend is for more Res Judicata and thus more needed to be included in first to save
resources
Interplay with Compulsory Counterclaim
a. It bars a lot of stuff the same way as res judicata, however, remember if a person goes to state
court, then the state’s res judicata law is needed, because Compulsory counterclaim doesn’t work
there.
b. It has replaced defense preclusion
ISSUE PRECLUSION/COLLATERAL ESTOPPEL
1. Generally
a. We are trying to stop relitigating a single issue (not all claim)
b. We are talking about a single issue or group of issues
2. Requirements for Issue Preclusion/Collateral Estoppel
a. #1 is a final judgment on the merits
b. Same parties in #1 and #2
c. # 2 is not the same claim as #1 (if it was it would be res judicata)
d. #2 has some same (identical) issue(s) as in #1 (so not totally independent)
e. Must been “actually litigated and determined” in the original action, not what might have been
litigated. (other issues to consider)
i. If Multiple Issues were Involved Then:
1. If #1 decided on more than one grounds, and it is impossible to ascertain which
ground was the basis of the decision, then none is good for Collateral Estoppel.
2. If #1 decided on more than one grounds, and it is POSSIBLE to ascertain the
grounds decided on and necessary, then ALL grounds are Collateral Estoppel.
3. If #1 decided more than one issue, then only issues “necessary/consistent with
the decision” is good for Collateral Estoppel.
4.
3. How do you tell what ground decided on?
a. If you have general verdict with Interrogatories or special verdict it is clear.
b. The fact that it has to be one of the two (even if both in the second suit), not good enough
4. How to determine if Necessary
a. If you removed, the verdict would have been the same.
b. The verdict was the same regardless of that issue
c. Why do we require these
i. Party didn’t have the same incentive/opportunity to litigate
1. I.e. appeal or didn’t go at it hard since knew he won on other.
ii. Jury doesn’t have the incentive to care about it.
MUTUALITY IN COLLATERAL ESTOPPEL
1. However, Non-Mutual Collateral Estoppel is now the modern Trend
2. Generally
a. Mutuality is the same thing as to if the same parties are needed or not.
b. THUS, rethinking the requirement of Same Parties
c. We used to require mutuality out of fairness in the past.
i. But now don’t care since they had a full and fair chance to fully litigate the issue.
d. Required until 1942
e. It is a looser standard than Res Judicata
3. FIRST A person not in the first lawsuit cannot be bound by it, because he was not present and thus
it violates his Due Process Rights
a. But it doesn’t violate the party that was there rights.
4. Second Courts will allow non-mutual collateral estoppel against an original party some of the time
but NOT always.
a. General Rule is that P’s should not be able to use offensive non-mutual collateral estoppel
5. Cases where Lack of Mutuality will stop Collateral Estoppel
a. Compromised Verdicts
b. InconsistencyFinding one way 25 times in a row, but then opposite once
CivProIIOutline--Schwemm
6.
7.
8.
27
Kelley Williams
c. THUS We don’t have a lot of confidence in the verdict
Types of Non-Mutual Collateral Estoppel
a. Offensive when new party is using it as a P against an original party.
i. Courts hold it to a higher standards since more fishy
ii. Presumed to be NO
b. Defensive is when new party is using it as a D against an original party
i. Courts more likely to allow
ii. Presumed to be YES
Factors to Consider
a. Could the New P have Joined the first Lawsuit
b. Did the New P know about the lawsuit.
c. Was there the incentive to litigate (full and fair chance)
d. Any Practicality requirements
e. Any Rule Requirements
Does not violate 7th Amendment right to Trial by Jury.
a. If first time was equitable and thus no jury, then still precludes and thus you don’t get a jury, but
doesn’t violate right.